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March 19, 2026 Get Citation Alerts Download PDF Add Note

Michael Wade Nance v. Commissioner, Georgia Department of Corrections

Court of Appeals for the Eleventh Circuit

• Citations: None known
• Docket Number: 25-11890

• Nature of Suit: NEW

• Opinion

• Authorities (8)

• Cited By (0)

• Summaries (0)

• Similar Cases (3.6K)

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Combined Opinion

USCA11 Case: 25-11890 Document: 36-1 Date Filed: 03/19/2026 Page: 1 of 14

FOR PUBLICATION

In the
United States Court of Appeals
For the Eleventh Circuit

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No. 25-11890
Oral Argument Calendar

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MICHAEL WADE NANCE,
Plaintiff-Appellant,
versus

COMMISSIONER, GEORGIA DEPARTMENT OF
CORRECTIONS,
WARDEN, GEORGIA DIAGNOSTIC AND CLASSIFICATION
PRISON,
Defendants-Appellees.

---

Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:20-cv-00107-JPB

---

Before WILLIAM PRYOR, Chief Judge, and NEWSOM and LAGOA, Cir-
cuit Judges.
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2 Opinion of the Court 25-11890

WILLIAM PRYOR, Chief Judge:
This appeal requires us to decide whether the district court
erred in rejecting a prisoner’s complaint that his execution by lethal
injection would violate the Eighth and Fourteenth Amendments to
the Constitution. See 42 U.S.C. § 1983. Michael Nance, a Georgia
prisoner sentenced to death, sued prison officials on the ground
that there was a substantial likelihood he would suffer severe pain
during his execution by pentobarbital. He alleged that his veins
were so compromised that the execution team would not be able
to establish intravenous access and that his veins would blow even
if access were possible. The prison officials’ medical expert exam-
ined Nance’s veins the morning of the bench trial and testified that
access would not be difficult, and four members of the execution
team testified remotely and anonymously. The district court ruled
that Nance failed to prove a substantial likelihood that he would
suffer severe pain based on his medical records. Nance complains
that the district court misapplied the law, committed clear errors
in its findings of fact, and erred by allowing the officials’ expert to
testify about his examination the morning of trial and by allowing
the execution team to testify remotely. Because the district court
committed no reversible error, we affirm.
I. BACKGROUND
Since 2012, the Georgia lethal-injection protocol has re-
quired that at least one physician be present “to provide medical
assistance during the execution process,” two or more “trained per-
sonnel, including at least one . . . Nurse,” be present “to provide
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25-11890 Opinion of the Court 3

intravenous access,” and three “trained staff members” be present
to “inject solutions into the intravenous port(s) during the execu-
tion process.” When the condemned prisoner arrives to the execu-
tion chamber, the execution team “provide[s] two . . . intravenous
accesses,” and “[i]f the veins are such that intravenous access can-
not be provided, a Physician will provide access by central venous
cannulation or other medically approved alternative.” Two mem-
bers of the injection team each inject one syringe of 2.5 grams of
pentobarbital, one after the other, and a third member injects a sy-
ringe of saline to “ensur[e] a steady . . . flow.” The “IV Nurse will
monitor the progress,” and if he “observes a problem with intrave-
nous flow, [he] will inform the attending Physician, who will in-
form the Warden as to whether or not using an alternative . . . is
appropriate.” The warden is tasked with “giv[ing] the . . . instruc-
tions to the Injection Team.” If the prisoner still exhibits signs of
life afterward, the injection team will administer five more grams
of pentobarbital.
In 1993, Michael Nance murdered Gabor Balogh by shoot-
ing him at point blank while stealing his car to a flee a bank rob-
bery. Nance v. State, 526 S.E.2d 560, 563–64 (Ga. 2000). Four years
later, a jury found Nance guilty of capital murder, and a trial court
sentenced him to death. Id. at 563 n.1.
Twenty-two years after his conviction, Nance sued the
Commissioner of the Georgia Department of Corrections and a
prison warden on the ground that his execution by lethal injection
would violate the prohibition of cruel and unusual punishments
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4 Opinion of the Court 25-11890

under the Eighth and Fourteenth Amendments, see 42 U.S.C.
§ 1983, and he sought an injunction against his execution by lethal
injection. His complaint alleged that “execution by a firing squad”
was a “feasible and readily implemented” alternative.
We initially rejected his suit as a second or successive habeas
petition, Nance v. Comm’r, Ga. Dep’t of Corr., 981 F.3d 1201, 1214
(11th Cir. 2020), but the Supreme Court reversed in a 5-4 decision.
It held that the suit could proceed under section 1983. Nance v.
Ward, 142 S. Ct. 2214, 2221 (2022). On remand, we held that
Nance’s as-applied claims were timely. Nance v. Comm’r, Ga. Dep’t
of Corr., 59 F.4th 1149, 1153–54 (11th Cir. 2023).
In an amended complaint, Nance alleged that his “veins are
severely compromised[,]. . . heavily scarred, tortuous, and have
thin walls.” He alleged that “[i]nsertion of an intravenous catheter
. . . present[ed] a substantial risk that [his] vein will ‘blow’ and lose
its structural integrity, causing the injected pentobarbital to leak
into the surrounding tissue”—an “intense and painful” “leakage”
called “extravasation.” He also alleged that the members of the ex-
ecution team “lack[ed] the professional skills” to perform the pro-
tocol’s alternative intravenous access to peripheral vein access: ei-
ther “central venous cannulation or a cutdown.” Nance alleged
that execution by firing squad provided a “feasible and readily im-
plemented” alternative, and because it was “both swift and virtu-
ally painless,” lethal injection would entail a “cruel superaddition
of terror and pain.”
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25-11890 Opinion of the Court 5

Dr. Joseph Antognini provided an expert report for the
prison officials. His report stated that, in the light of Nance’s “sev-
eral recent medical procedures that required intravenous access”
for which “[t]here were no reports of difficulty,” “there should not
be difficulty in obtaining access for [Nance’s] execution.” In a later
deposition, Dr. Antognini testified that he had never examined
Nance and that he based his opinion on the report of Nance’s ex-
pert and Nance’s medical records.
Nance stated that he intended to call as witnesses at trial
members of the execution team whose names had been kept anon-
ymous. But the prison officials proposed that the team members
testify remotely without appearing on camera and with voice mod-
ulating software. Nance rejected that proposal, so the prison offi-
cials requested that the district court impose those security
measures.
Under the Georgia Secrecy Act, “[t]he identifying infor-
mation of any person or entity who participates in or administers
the execution of a death sentence . . . shall be confidential.” GA.
CODE ANN. § 42-5-36(d)(2). The prison officials explained that, un-
der the Act, they “must do everything possible to ensure [the team
members’] identities remain a secret.” They offered to have Bryan
Wilson, deputy general counsel for the Department, “be with the
witness and attest that the witness is the individual . . . subpoenaed
to testify,” after which Wilson would leave, the witness would be
left alone, and “the video and audio feed w[ould] be broadcast to
the courtroom.” Nance objected and proposed alternatives. But the
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6 Opinion of the Court 25-11890

district court ruled that the anonymous witnesses could testify by
contemporaneous transmission without appearing on camera and
while using voice modulation software. It found that the need to
protect the witnesses’ identities outweighed any difficulty in “eval-
uating the[ir] credibility.”
Before trial, the prison officials informed Nance that they
wanted Dr. Antognini to examine Nance’s veins either the day be-
fore or the morning of trial and to testify about his observations.
The district court ruled that Dr. Antognini could examine Nance
the morning of trial. Nance moved to exclude Dr. Antognini’s tes-
timony about the examination as violating the deadline for expert
disclosures. The district court denied Nance’s motion but allowed
him to interview Dr. Antognini before he testified. It also gave
Nance the opportunity to request a “follow-up report” by his ex-
pert or a “follow-up deposition” of Dr. Antognini after the inter-
view. After the interview, Nance told the district court that “any
further deposition[s] or reports will [not] be necessary.”
Before calling witnesses, the parties agreed to admit three of
Nance’s medical records accompanied by declarations of medical
professionals who reviewed them. The first declaration came from
a doctor who reviewed records of Nance’s December 2022 com-
puted tomography scan. She explained that the records established
that the contrast agent “injected into an intravenous . . . line” was
“delivered throughout . . . Nance’s circulatory system,” leading her
to believe there were no “concerns” or “problems” with its deliv-
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25-11890 Opinion of the Court 7

ery. The second declaration came from a registered nurse who se-
dated Nance for his February 2022 colonoscopy. She stated that in-
travenous “access was established” in Nance’s left arm “with a 20
or 22 gauge needle and a catheter,” and there was no “redness,
swelling or pain at the injection site.” The third declaration came
from a doctor who reviewed the magnetic resonance records of
Nance’s February 2023 brain scan. He stated that the contrast agent
injected intravenously was delivered without issue.
At trial, Nance’s expert, Dr. David Waisel, testified based on
the condition of Nance’s veins that establishing intravenous access
“will likely require multiple painful needle insertions to locate a
suitable vein.” He stated there was a “substantial risk that [Nance’s]
veins will lose their structural integrity and blow,” which will cause
“intense pain and burning in . . . surrounding tissue” and a “pro-
longed execution . . . [with] excruciating pain.” Dr. Waisel stated
that Nance’s medical records lacked “basic core information” like
the “number of attempts, the size of the catheters used, . . . and . . .
any problems with” intravenous access.
Dr. Antognini testified for the prison officials about his ex-
amination of Nance. He stated that in the light of the blood
“drain[ing] out of [Nance’s] veins,” “[h]is veins looked very good”
and without scar. He explained that the medical records established
that “venous access should not be an issue.”
Four members of the execution team testified anonymously
from a remote location: a corrections officer who injects the pen-
USCA11 Case: 25-11890 Document: 36-1 Date Filed: 03/19/2026 Page: 8 of 14

8 Opinion of the Court 25-11890

tobarbital, the nurse who establishes intravenous access, the physi-
cian for the execution, and the physician who examines the pris-
oner before the execution. None used voice modulation software,
and three eventually consented to having their faces visible only to
the district court. Wilson attested to their identities. And the dis-
trict court and Nance’s counsel ensured they were alone during
their testimony without access to electronics.
The district court entered judgment for the officials. It found
that “the condition of [Nance’s] veins [does not] make[] it unlikely
that the execution team will be able to obtain a peripheral IV.” It
ruled that “[i]n light of [Nance’s] recent medical history, . . .
[Nance] failed to show by a preponderance of the evidence that his
veins are so compromised that it is substantially likely that the ex-
ecution team would be unable to obtain peripheral IVs.” Moreo-
ver, Nance “failed to show that once peripheral IV access is ob-
tained, . . . it is substantially likely that complications would arise
causing him severe pain.” The district court based its decision on
Nance’s medical records. Nance later moved to alter or amend the
judgment, and the district court denied his motion.
II. STANDARDS OF REVIEW
“In reviewing a judgment following a bench trial, we review
de novo both conclusions of law and the application of the law to
the facts,” and “we review findings of fact for clear error.” League of
Women Voters of Fla. Inc. v. Fla. Sec’y of State, 66 F.4th 905, 921 (11th
Cir. 2023). “We will not find clear error unless our review of the
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25-11890 Opinion of the Court 9

record leaves us with the definite and firm conviction that a mis-
take has been committed.” Id. (citation and internal quotation
marks omitted). We review “evidentiary rulings for abuse of dis-
cretion.” Skanska USA Civ. Se. Inc. v. Bagelheads, Inc., 75 F.4th 1290,
1309 (11th Cir. 2023) (citation and internal quotation marks omit-
ted). “An error is harmless unless it affects the substantial rights of
the parties such that the reviewing court cannot confidently say
that the judgment was not substantially swayed by the error.” Id.
(citation and internal quotation marks omitted).
III. DISCUSSION
We divide our discussion into three parts. We first explain
that the district court was not required to determine whether
Nance established a readily available and feasible alternative. We
next explain that the judgment does not rest on clearly erroneous
facts. Finally, we explain that no evidentiary error was prejudicial.
A. The District Court Was Not Obliged to Decide Whether
Nance Established a Readily Available Alternative.
Nance contends that “[d]etermining the constitutionality of
an execution method requires the trial court to compare the State’s
proposed method with the condemned plaintiff’s proposed alterna-
tive.” But we disagree. Nance misreads the controlling precedents.
We have explained that “to prevail on” a method-of-execu-
tion claim, a prisoner “has to establish two things: (1) that the
method of execution in question creates a substantial risk of serious
harm, an objectively intolerable risk of harm that prevents prison
officials from pleading that they were subjectively blameless for
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10 Opinion of the Court 25-11890

purposes of the Eighth Amendment, and (2) that there is an alter-
native that is feasible, readily implemented, and in fact significantly
reduces a substantial risk of severe pain.” Barber v. Governor of Ala.,
73 F.4th 1306, 1318 (11th Cir. 2023) (alteration adopted) (citation
and internal quotation marks omitted). In Barber, we concluded
that even though the prisoner “identified a feasible alternative
method of execution,” he had “not show[n] that he face[d] a sub-
stantial risk of serious harm if executed by” the planned method.
Id. at 1318–19 (internal quotation marks omitted). If the planned
method does not present a substantial risk of serious harm, the of-
ficials may use it regardless of the proposed alternatives.
Our precedent faithfully adheres to Supreme Court prece-
dent. In Bucklew v. Precythe, the Court explained that “a prisoner
must show a feasible and readily implemented alternative method
of execution that would significantly reduce a substantial risk of se-
vere pain and that the State has refused to adopt without a legiti-
mate penological reason.” 139 S. Ct. 1112, 1125 (2019). An “alter-
native method” cannot “reduce a substantial risk of severe pain”
when there was no substantial risk in the first place.
Nance points to the language in Bucklew that “[t]he Eighth
Amendment does not come into play unless the risk of pain associ-
ated with the State’s method is substantial when compared to a
known and available alternative.” Id. (emphasis added) (citation
and internal quotation marks omitted). But that passage means
only that where the risk from the planned method is like the alter-
native, the “Eighth Amendment does not come into play”—not
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25-11890 Opinion of the Court 11

that the Eighth Amendment “come[s] into play” where there is no
substantial risk. And when Bucklew called the adjudication a “nec-
essarily comparative exercise,” id. at 1126 (emphasis omitted), as it
“always involve[s] a comparison with available alternatives,” id. at
1127, it did so in rejecting a prisoner’s argument that he “should
not have to prove an alternative method of execution in his as-ap-
plied challenge,” id. at 1126. In other words, comparison will al-
ways be necessary to sustain a prisoner’s claim, not to reject one.
B. The District Court Made No Clear Error in Its Fact Findings.
Nance contends that the judgment of the district court rests
on clearly erroneous findings of fact. But we disagree. Nance’s
medical records alone make the findings “permissible.” See Brnovich
v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2349 (2021). Medical pro-
fessionals obtained peripheral access to Nance’s veins three times
less than two and a half years before the trial, and the medical rec-
ords reveal no complications in either obtaining intravenous access
or delivering a steady flow of fluids into his veins. For his computed
tomography and magnetic resonance scans, the reviewing doctors
attested that “[i]f there had been problems with the delivery . . . [it]
would have been evident” in the respective “scan images.” And the
nurse who sedated Nance for his colonoscopy confirmed that there
was “no redness, swelling or pain” at the intravenous access
point—a fact even Dr. Waisel conceded “suggest[ed] . . . that there
was no extravasation during th[e] procedure.”
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12 Opinion of the Court 25-11890

Nance responds that the medical records are “of limited util-
ity” because, as Dr. Waisel explained, they do not state “the ‘num-
ber of . . . attempts, . . . the size of catheters successfully inserted
and [whether there] were . . . any problems with [access].’” Yet Dr.
Waisel also admitted that there was “nothing in the[] medical rec-
ords suggesting . . . that it took more than one time to get IV ac-
cess.” To be sure, Dr. Waisel testified that injections are more dif-
ficult with a “smaller needle.” But the medical staff performing
Nance’s colonoscopy used a “20 or 22 gauge needle” to establish
intravenous access, and the prison officials plan to use a larger or
same-size needle.
The district court was also entitled to credit Dr. Antognini’s
testimony that had there been a significant number of failed at-
tempts to establish access, the medical records would have likely
reflected it. What Nance calls “an absence of documented complica-
tions” the district court permissibly treated as “a documentation of
absence.” For that reason, it does not matter that the declarants
who reviewed the scan records were “not . . . present for the pro-
cedure.”
C. The Evidentiary Rulings Involve No Reversible Error.
Nance argues that the district court erred in two evidentiary
rulings. First, he maintains that allowing Dr. Antognini to examine
him the morning of trial and to testify about the results of the ex-
amination was error because it violated the expert disclosure
schedule. Second, Nance argues that permitting the execution
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25-11890 Opinion of the Court 13

team members to “testify anonymously, remotely, without cam-
eras on, and under the supervision of another defense witness” vi-
olated the preference for in-court testimony reflected in Federal
Rule of Civil Procedure 43. But neither ruling, even if erroneous,
prejudiced Nance.
The district court did not rely on either Dr. Antognini’s tes-
timony about his examination or the anonymous testimonies of
the execution team. The district court found that Nance’s medical
records alone made it likely that the execution team would be able
to obtain peripheral access and that complications causing severe
pain would not arise. Indeed, the district court did not refer to any
of Dr. Antognini’s testimony in its conclusions of law, where it re-
viewed the merits of Nance’s complaint. And where it referred to
the execution team’s testimony, it did so to make alternative find-
ings that “[i]f a complication occurred, . . . [the execution team]
would be able to detect it and address it” and “alternative IV access
methods” would be successful.
Contrary to Nance’s argument, we may “disentangle . . . [al-
leged] improperly introduced testimony from the rest of the court’s
findings,” because the district court explained its analysis step-by-
step. True, the district court quoted Dr. Antognini’s testimony
about his examination in its findings of fact. But it did so only de-
scriptively—in other words, the district court explained what Dr.
Antognini said without crediting his testimony. The district court
similarly recounted Dr. Waisel’s testimony in the same section. In
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14 Opinion of the Court 25-11890

any event, even if the district court relied on Dr. Antognini’s testi-
mony about his examination, Nance waived any error by declining
the district court’s offer to allow Nance to depose Dr. Antognini
and to offer a rebuttal report. See Gould v. Interface, Inc., 153 F.4th
1346, 1353 (11th Cir. 2025) (“Waiver is the intentional relinquish-
ment . . . of a known right.” (citation and internal quotation marks
omitted)). And although the district court stated that it was
“[i]mportant[]” that the anonymous execution physician was “con-
fident” that the staff would be able to “identify and correct any is-
sues with the IV tubing,” it was only “important” to the alternative
ruling that an unlikely complication would not have posed a prob-
lem.
IV. CONCLUSION
We AFFIRM the judgment in favor of the prison officials.