HILL v. McDONOUGH, INTERIM SECRETARY, FLOR- IDA DEPARTMENT OF CORRECTIONS, et al.

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573 OCTOBER TERM, 2005
Syllabus
HILL v. McDONOUGH, INTERIM SECRETARY, FLOR-
IDA DEPARTMENT OF CORRECTIONS, et al.
certiorari to the united states court of appeals for
the eleventh circuit
No. 05–8794. Argued April 26, 2006—Decided June 12, 2006
Facing execution in Florida, petitioner Hill brought this federal action
under 42 U. S. C. § 1983 to enjoin the three-drug lethal injection proce
dure the State likely would use on him. He alleged the procedure could
cause him severe pain and thereby violate the Eighth Amendment’s pro
hibition of cruel and unusual punishments. The District Court found
that under controlling Eleventh Circuit precedent the § 1983 claim was
the functional equivalent of a habeas petition. Because Hill had sought
federal habeas relief earlier, the court deemed his petition successive
and barred under 28 U. S. C. § 2244. The Eleventh Circuit agreed and
affirmed.
Held: Because Hill’s claim is comparable in its essentials to the § 1983
action the Court allowed to proceed in Nelson v. Campbell, 541 U. S.
637, it does not have to be brought in habeas, but may proceed under
§ 1983. Pp. 579–585.
(a) Nelson controls here. Although an inmate’s challenge to the law
fulness of a sentence or confinement is the province of habeas corpus,
e. g., Muhammad v. Close, 540 U. S. 749, 750, the Nelson Court declined
to deem the instant § 1983 Eighth Amendment “challenge seeking to
permanently enjoin the use of lethal injection . . . a challenge to the fact
of the sentence itself,” 541 U. S., at 644. Nelson’s veins were severely
compromised, and Alabama planned to apply an invasive surgical proce
dure to enable the injection. However, that procedure was not man
dated by state law, and Nelson appeared willing to concede the existence
of an acceptable alternative procedure. Absent a finding that the pro
cedure was necessary to the lethal injection, the Court concluded, in
junctive relief would not prevent the State from implementing the sen
tence. Id., at 645–646. Here, as in Nelson, Hill’s action if successful
would not necessarily prevent the State from executing him by lethal
injection. He does not challenge his sentence as a general matter but
seeks only to enjoin respondents from executing him in a manner that
allegedly causes a foreseeable risk of gratuitous and unnecessary pain.
He concedes that other lethal injection methods the State could choose
would be constitutional, and respondents do not contend, at least at this
point, that an injunction would leave no other practicable, legal method

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574 HILL v. McDONOUGH
Syllabus
of lethally injecting Hill. Florida law, moreover, does not require the
use of the challenged procedure. Under these circumstances a grant of
injunctive relief could not be seen as barring the execution of Hill’s
sentence. The fact that Hill challenges the chemical injection sequence
rather than a preliminary surgical procedure does not change the analy
sis. In Nelson, the Court reasoned that “the gravamen of petitioner’s
entire claim” was that the surgical procedure was “gratuitous,” id., at
645, whereas Hill alleges that the procedure he challenges presents a
risk of pain the State can avoid while still being able to enforce his
sentence.
The Court rejects two rules proposed by respondents and their amici
to counter the prospect of inmates filing successive § 1983 actions chal
lenging one aspect of an execution procedure after another in order to
forestall execution. First, the United States contends that a capital
litigant’s § 1983 action can proceed only if, as in Nelson, the prisoner
identifies an alternative, authorized method of execution. Although
Nelson’s doing so supported the Court’s conclusion that his suit need not
proceed as a habeas action, that fact was not decisive. Nelson did not
change the traditional pleading requirements for § 1983 actions. Spe
cific pleading requirements are mandated by the Federal Rules of Civil
Procedure, and not, as a general rule, through federal courts’ case-by
case determinations. Second, relying on cases barring § 1983 damages
actions that, if successful, would imply the invalidation of an existing
sentence or confinement, see, e. g., Heck v. Humphrey, 512 U. S. 477,
respondents and the amici States contend that any challenge that would
frustrate an execution as a practical matter must proceed in habeas.
This argument cannot be squared with Nelson’s observation, 541 U. S.,
at 646–647, that its criterion—whether granting relief would necessarily
bar the inmate’s execution—is consistent with those cases. Because in
junctive relief would not necessarily foreclose Florida from executing
Hill by lethal injection under present law, it could not be said that this
suit seeks to establish “unlawfulness [that] would render a conviction or
sentence invalid,” Heck, supra, at 486. Pp. 579–583.
(b) Filing a § 1983 action does not entitle the complainant to an auto
matic stay of execution. Such a stay is an equitable remedy not avail
able as a matter of right, and equity must be sensitive to the State’s
strong interest in enforcing its criminal judgments without undue inter
ference from federal courts. Thus, inmates seeking time to challenge
the manner of their execution must satisfy all of the requirements for a
stay, including showing a significant possibility of success on the merits.
A court considering a stay must also apply a strong equitable pre
sumption against granting relief where the claim could have been
brought at such a time as to allow consideration of the merits without

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575 Cite as: 547 U. S. 573 (2006)
Syllabus
requiring a stay. Nelson, supra, at 650. After Nelson federal courts
have invoked their equitable powers to dismiss suits they saw as spec
ulative or filed too late. Repetitive or piecemeal litigation presumably
would raise similar concerns. States can and should be protected from
dilatory or speculative suits, but it is not necessary to reject Nelson to
do so. The equities and merits of Hill’s underlying action are not before
this Court. Pp. 583–585.
437 F. 3d 1084, reversed and remanded.
Kennedy, J., delivered the opinion for a unanimous Court.
D. Todd Doss, by appointment of the Court, 547 U. S. 1096,
argued the cause for petitioner. With him on the briefs
were John Abatecola, Donald B. Verrilli, Jr., and Ian
Heath Gershengorn.
Carolyn M. Snurkowski, Assistant Deputy Attorney Gen
eral of Florida, argued the cause for respondents. With her
on the brief was Charles J. Crist, Jr., Attorney General.
Kannon K. Shanmugam argued the cause for the United
States as amicus curiae urging affirmance. With him on
the brief were Solicitor General Clement, Assistant Attor
ney General Fisher, Deputy Solicitor General Garre, and
Robert J. Erickson.*
*Briefs of amici curiae urging reversal were filed for New Jerseyans
for Alternatives to the Death Penalty by John J. Gibbons and Lawrence
S. Lustberg; for Bradley A. MacLean et al. by Thomas C. Goldstein, Amy
Howe, Kevin K. Russell, and Pamela S. Karlan; and for Darick Demorris
Walker by David W. Ogden and Hannah S. Ard.
Briefs of amici curiae urging affirmance were filed for the State of
Alabama et al. by Troy King, Attorney General of Alabama, and Kevin C.
Newsom, Solicitor General, and by the Attorneys General for their respec
tive States as follows: Terry Goddard of Arizona, Mike Beebe of Arkansas,
Bill Lockyer of California, John W. Suthers of Colorado, Carl C. Danberg
of Delaware, Thurbert E. Baker of Georgia, Lawrence G. Wasden of Idaho,
Steve Carter of Indiana, Phill Kline of Kansas, Gregory D. Stumbo of
Kentucky, Jim Hood of Mississippi, Jeremiah W. (Jay) Nixon of Missouri,
Mike McGrath of Montana, Jon Bruning of Nebraska, George J. Chanos
of Nevada, Jim Petro of Ohio, W. A. Drew Edmondson of Oklahoma,
Thomas W. Corbett, Jr., of Pennsylvania, Paul G. Summers of Tennessee,
Greg Abbott of Texas, Mark L. Shurtleff of Utah, Robert F. McDonnell of

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576 HILL v. McDONOUGH
Opinion of the Court
Justice Kennedy delivered the opinion of the Court.
Petitioner Clarence E. Hill challenges the constitutionality
of a three-drug sequence the State of Florida likely would
use to execute him by lethal injection. Seeking to enjoin
the procedure, he filed this action in the United States Dis
trict Court for the Northern District of Florida, pursuant to
the Civil Rights Act of 1871, Rev. Stat. § 1979, as amended,
42 U. S. C. § 1983. The District Court and the Court of Ap
peals for the Eleventh Circuit construed the action as a peti
tion for a writ of habeas corpus and ordered it dismissed
for noncompliance with the requirements for a second and
successive petition. The question before us is whether Hill’s
claim must be brought by an action for a writ of habeas
corpus under the statute authorizing that writ, 28 U. S. C.
§ 2254, or whether it may proceed as an action for relief
under 42 U. S. C. § 1983.
This is not the first time we have found it necessary to
discuss which of the two statutes governs an action brought
by a prisoner alleging a constitutional violation. See, e. g.,
Nelson v. Campbell, 541 U. S. 637 (2004); Heck v. Humphrey,
512 U. S. 477 (1994); Preiser v. Rodriguez, 411 U. S. 475
(1973). Hill’s suit, we now determine, is comparable in its
essentials to the action the Court allowed to proceed under
§ 1983 in Nelson, supra. In accord with that precedent we
now reverse.
I
In the year 1983, Hill was convicted of first-degree murder
and sentenced to death. When his conviction and sentence
became final some five years later, the method of execution
then prescribed by Florida law was electrocution. Fla. Stat.
Virginia, Rob McKenna of Washington, and Patrick J. Crank of Wyoming;
and for the Criminal Justice Legal Foundation by Kent S. Scheidegger.
Briefs of amici curiae were filed for the Habeas Corpus Resource Cen
ter by Michael Laurence and Charles J. Press; for Human Rights Advo
cates et al. by David Weissbrodt; for Physicians for Human Rights et al.
by Paul F. Enzinna; and for Kevin Concannon et al. by Ira S. Sacks.

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Opinion of the Court
§ 922.10 (1987). On January 14, 2000—four days after the
conclusion of Hill’s first, unsuccessful round of federal habeas
corpus litigation—Florida amended the controlling statute to
provide: “A death sentence shall be executed by lethal in
jection, unless the person sentenced to death affirmatively
elects to be executed by electrocution.” § 922.105(1) (2003).
The now-controlling statute, which has not been changed in
any relevant respect, does not specify a particular lethal
injection procedure. Implementation is the responsibility of
the Florida Department of Corrections. See ibid.; Sims
v. State, 754 So. 2d 657, 670 (Fla. 2000) (per curiam). The
department has not issued rules establishing a specific
lethal injection protocol, and its implementing policies and
procedures appear exempt from Florida’s Administrative
Procedure Act. See § 922.105(7).
After the statute was amended to provide for lethal injec
tion, the Florida Supreme Court heard a death row inmate’s
claim that the execution procedure violated the Eighth
Amendment’s prohibition of cruel and unusual punishments.
Sims v. State, supra. In Sims, the complainant, who had
acquired detailed information about the procedure from the
State, contended the planned three-drug sequence of injec
tions would cause great pain if the drugs were not ad
ministered properly. 754 So. 2d, at 666–668. The Florida
Supreme Court rejected this argument as too speculative.
Id., at 668.
On November 29, 2005, the Governor of Florida signed
Hill’s death warrant, which ordered him to be executed on
January 24, 2006. Hill requested information about the le
thal injection protocol, but the department provided none.
App. 21, n. 3 (Verified Complaint for Declaratory & Injunc
tive Relief ¶ 15, n. 3 (hereinafter Complaint)). Hill then
challenged, for the first time, the State’s lethal injection pro
cedure. On December 15, 2005, he filed a successive post
conviction petition in state court, relying upon the Eighth
Amendment. The trial court denied Hill’s request for an ev

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578 HILL v. McDONOUGH
Opinion of the Court
identiary hearing and dismissed his claim as procedurally
barred. The Florida Supreme Court affirmed on January
17, 2006. Hill v. State, 921 So. 2d 579, cert. denied, 546 U. S.
1219 (2006).
Three days later—and four days before his scheduled exe
cution—Hill brought this action in District Court pursuant
to 42 U. S. C. § 1983. Assuming the State would use the pro
cedure discussed at length in the Sims decision, see App.
20–21, and n. 3 (Complaint ¶ 15, n. 3), Hill alleged that the
first drug injected, sodium pentothal, would not be a suffi
cient anesthetic to render painless the administration of the
second and third drugs, pancuronium bromide and potassium
chloride. There was an ensuing risk, Hill alleged, that he
could remain conscious and suffer severe pain as the pancur
onium paralyzed his lungs and body and the potassium chlo
ride caused muscle cramping and a fatal heart attack. Id.,
at 18–21 (Complaint ¶¶ 9–16). The complaint sought an
injunction “barring defendants from executing Plaintiff in
the manner they currently intend.” Id., at 22 (Complaint
¶¶ 19–20).
The District Court found that under controlling Eleventh
Circuit precedent the § 1983 claim was the functional equiva
lent of a petition for writ of habeas corpus. Id., at 15 (rely
ing on Robinson v. Crosby, 358 F. 3d 1281 (2004)). Because
Hill had sought federal habeas corpus relief in an earlier ac
tion, the District Court deemed his petition successive and
thus barred for failure to obtain leave to file from the Court
of Appeals as required by 28 U. S. C. § 2244(b). On the day
of the scheduled execution the Court of Appeals affirmed.
It held that Hill’s action was a successive petition and that
it would deny any application for leave to file a successive
petition because § 2244(b)(2) would not allow his claim to pro
ceed. Hill v. Crosby, 437 F. 3d 1084, 1085 (CA11 2006).
After issuing a temporary stay of execution, this Court
granted Hill’s petition for certiorari and continued the stay
pending our resolution of the case. 546 U. S. 1158 (2006).

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579 Cite as: 547 U. S. 573 (2006)
Opinion of the Court
II
“Federal law opens two main avenues to relief on com
plaints related to imprisonment: a petition for habeas corpus,
28 U. S. C. § 2254, and a complaint under the Civil Rights
Act of 1871, Rev. Stat. § 1979, as amended, 42 U. S. C. § 1983.
Challenges to the validity of any confinement or to particu
lars affecting its duration are the province of habeas corpus.”
Muhammad v. Close, 540 U. S. 749, 750 (2004) (per curiam)
(citing Preiser, 411 U. S., at 500). An inmate’s challenge
to the circumstances of his confinement, however, may be
brought under § 1983. 540 U. S., at 750.
In Nelson v. Campbell, 541 U. S. 637, we addressed
whether a challenge to a lethal injection procedure must pro
ceed as a habeas corpus action. The complainant had se
verely compromised peripheral veins, and Alabama planned
to apply an invasive procedure on his arm or leg to enable
the injection. He sought to enjoin the procedure, alleging it
would violate the Eighth Amendment. The Court observed
that the question whether a general challenge to a method
of execution must proceed under habeas was a difficult one.
The claim was not easily described as a challenge to the fact
or duration of a sentence; yet in a State where the legislature
has established lethal injection as the method of execution,
“a constitutional challenge seeking to permanently enjoin
the use of lethal injection may amount to a challenge to the
fact of the sentence itself.” Id., at 644.
Nelson did not decide this question. The lawsuit at issue,
as the Court understood the case, did not require an injunc
tion that would challenge the sentence itself. The invasive
procedure in Nelson was not mandated by law, and the in
mate appeared willing to concede the existence of an accept
able alternative procedure. Id., at 645–646. Absent a find
ing that the challenged procedure was necessary to the lethal
injection, the Court concluded, injunctive relief would not
prevent the State from implementing the sentence. Conse

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580 HILL v. McDONOUGH
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quently, the suit as presented would not be deemed a chal
lenge to the fact of the sentence itself. See ibid.
The decision in Nelson also observed that its holding was
congruent with the Court’s precedents addressing civil
rights suits for damages that implicate habeas relief. Those
cases provide that prisoners’ suits for damages can be barred
from proceeding under § 1983 when a judgment in the prison
er’s favor necessarily implies the invalidity of the prisoner’s
sentence. See, e. g., Heck, 512 U. S., at 487; Close, supra, at
751. The action in Nelson, however, was not analogous to a
damages suit filed to circumvent the limits imposed by the
habeas statute. The suit did not challenge an execution pro
cedure required by law, so granting relief would not imply
the unlawfulness of the lethal injection sentence. See 541
U. S., at 647.
In the case before us we conclude that Hill’s § 1983 action
is controlled by the holding in Nelson. Here, as in Nelson,
Hill’s action if successful would not necessarily prevent the
State from executing him by lethal injection. The complaint
does not challenge the lethal injection sentence as a general
matter but seeks instead only to enjoin respondents “from
executing [Hill] in the manner they currently intend.” App.
22 (Complaint ¶ 20). The specific objection is that the antici
pated protocol allegedly causes “a foreseeable risk of . . .
gratuitous and unnecessary” pain. Id., at 46 (Application for
Stay of Execution and for Expedited Appeal). Hill concedes
that “other methods of lethal injection the Department could
choose to use would be constitutional,” Brief for Petitioner
17, and respondents do not contend, at least to this point in
the litigation, that granting Hill’s injunction would leave the
State without any other practicable, legal method of execut
ing Hill by lethal injection. Florida law, moreover, does not
require the department of corrections to use the challenged
procedure. See Fla. Stat. §§ 922.105(1), (7) (prescribing le
thal injection and leaving implementation to the department
of corrections). Hill’s challenge appears to leave the State

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581 Cite as: 547 U. S. 573 (2006)
Opinion of the Court
free to use an alternative lethal injection procedure. Under
these circumstances a grant of injunctive relief could not be
seen as barring the execution of Hill’s sentence.
One difference between the present case and Nelson, of
course, is that Hill challenges the chemical injection se
quence rather than a surgical procedure preliminary to the
lethal injection. In Nelson, however, the State argued that
the invasive procedure was not a medical operation separable
from the lethal injection but rather a “necessary prerequisite
to, and thus an indispensable part of, any lethal injection
procedure.” 541 U. S., at 645. The Court reasoned that al
though venous access was necessary for lethal injection, it
did not follow that the State’s chosen means of access were
necessary; “the gravamen of petitioner’s entire claim” was
that the procedure was “gratuitous.” Ibid. (emphasis de
leted). The same is true here. Although the injection of
lethal chemicals is an obvious necessity for the execution,
Hill alleges that the challenged procedure presents a risk of
pain the State can avoid while still being able to enforce the
sentence ordering a lethal injection.
One concern is that the foregoing analysis may be more
theoretical than real based on the practicalities of the case.
A procedure that avoids the harms Hill alleges, for instance,
may be susceptible to attack for other purported risks of its
own. Respondents and their supporting amici thus contend
that the legal distinction between habeas corpus and § 1983
actions must account for the practical reality of capital litiga
tion tactics: Inmates file these actions intending to forestall
execution, and Nelson’s emphasis on whether a suit chal
lenges something “necessary” to the execution provides no
endpoint to piecemeal litigation aimed at delaying the execu
tion. Viewed in isolation, no single component of a given
execution procedure may be strictly necessary, the argument
goes, and a capital litigant may put off execution by challeng
ing one aspect of a procedure after another. The amici
States point to Nelson’s aftermath as a cautionary example,

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582 HILL v. McDONOUGH
Opinion of the Court
contending that on remand the District Court allowed Nel
son to amend his complaint and that litigation over the
constitutionality of Alabama’s adopted alternative—one that
Nelson had previously proposed—continues to this day. See
Brief for State of Alabama et al. as Amici Curiae 7–14.
Respondents and their supporting amici conclude that two
different rules should follow from these practical considera
tions. The United States as amicus curiae contends that a
capital litigant’s § 1983 action can proceed if, as in Nelson,
supra, at 646, the prisoner identifies an alternative, author
ized method of execution. A suit like Hill’s that fails to do
so, the United States maintains, is more like a claim challeng
ing the imposition of any method of execution—which is to
say, the execution itself—because it shows the complainant
is unable or unwilling to concede acceptable alternatives
“[e]xcept in the abstract.” Brief for United States 14.
Although we agree courts should not tolerate abusive liti
gation tactics, see Part III, infra, even if the United States’
proposed limitation were likely to be effective we could not
accept it. It is true that the Nelson plaintiff ’s affirmative
identification of an acceptable alternative supported our con
clusion that the suit need not proceed as a habeas action.
541 U. S., at 646 (citing the inmate’s complaint and affidavits).
That fact, however, was not decisive. Nelson did not change
the traditional pleading requirements for § 1983 actions. If
the relief sought would foreclose execution, recharacterizing
a complaint as an action for habeas corpus might be proper.
See id., at 644, 646. Cf. Gonzalez v. Crosby, 545 U. S. 524
(2005). Imposition of heightened pleading requirements,
however, is quite a different matter. Specific pleading re
quirements are mandated by the Federal Rules of Civil Pro
cedure, and not, as a general rule, through case-by-case de
terminations of the federal courts. See Fed. Rules Civ.
Proc. 8 and 9; Swierkiewicz v. Sorema N. A., 534 U. S. 506,
512–514 (2002).

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Opinion of the Court
Respondents and the States as amici frame their argu
ment differently. While not asking the Court in explicit
terms to overrule Nelson, they contend a challenge to a pro
cedure implicating the direct administration of an execution
must proceed as a habeas action. Brief for Respondents
30–31; Brief for Alabama, supra, at 16–18. They rely on
cases barring § 1983 damages actions that, if successful,
would imply the invalidation of an existing sentence or con
finement. See, e. g., Edwards v. Balisok, 520 U. S. 641
(1997); Heck, 512 U. S. 477. Those cases, they contend, dem
onstrate that the test of whether an action would undermine
a sentence must “be applied functionally.” Brief for Ala
bama, supra, at 16. By the same logic, it is said, a suit
should be brought in habeas if it would frustrate the execu
tion as a practical matter.
This argument cannot be squared with Nelson’s observa
tion that its criterion—whether a grant of relief to the in
mate would necessarily bar the execution—is consistent with
Heck’s and Balisok’s approach to damages actions that impli
cate habeas relief. Nelson, supra, at 646–647. In those
cases the question is whether “the nature of the challenge
to the procedures could be such as necessarily to imply the
invalidity” of the confinement or sentence. Balisok, supra,
at 645. As discussed above, and at this stage of the litiga
tion, the injunction Hill seeks would not necessarily foreclose
the State from implementing the lethal injection sentence
under present law, and thus it could not be said that the
suit seeks to establish “unlawfulness [that] would render a
conviction or sentence invalid.” Heck, supra, at 486. Any
incidental delay caused by allowing Hill to file suit does not
cast on his sentence the kind of negative legal implication
that would require him to proceed in a habeas action.
III
Filing an action that can proceed under § 1983 does not
entitle the complainant to an order staying an execution as

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584 HILL v. McDONOUGH
Opinion of the Court
a matter of course. Both the State and the victims of crime
have an important interest in the timely enforcement of a
sentence. Calderon v. Thompson, 523 U. S. 538, 556 (1998).
Our conclusions today do not diminish that interest, nor do
they deprive federal courts of the means to protect it.
We state again, as we did in Nelson, that a stay of execu
tion is an equitable remedy. It is not available as a matter
of right, and equity must be sensitive to the State’s strong
interest in enforcing its criminal judgments without undue
interference from the federal courts. 541 U. S., at 649–650.
See In re Blodgett, 502 U. S. 236, 239–240 (1992) (per cu
riam); Delo v. Stokes, 495 U. S. 320, 323 (1990) (Kennedy,
J., concurring). Thus, like other stay applicants, inmates
seeking time to challenge the manner in which the State
plans to execute them must satisfy all of the requirements
for a stay, including a showing of a significant possibility of
success on the merits. See Barefoot v. Estelle, 463 U. S. 880,
895–896 (1983). See also Mazurek v. Armstrong, 520 U. S.
968, 972 (1997) (per curiam) (preliminary injunction not
granted unless the movant, by a clear showing, carries the
burden of persuasion).
A court considering a stay must also apply “a strong equi
table presumption against the grant of a stay where a claim
could have been brought at such a time as to allow consider
ation of the merits without requiring entry of a stay.” Nel
son, supra, at 650. See also Gomez v. United States Dist.
Court for Northern Dist. of Cal., 503 U. S. 653, 654 (1992)
(per curiam) (noting that the “last-minute nature of an appli
cation” or an applicant’s “attempt at manipulation” of the
judicial process may be grounds for denial of a stay).
After Nelson a number of federal courts have invoked
their equitable powers to dismiss suits they saw as specula
tive or filed too late in the day. See, e. g., Hicks v. Taft, 431
F. 3d 916 (CA6 2005); White v. Johnson, 429 F. 3d 572 (CA5
2005); Boyd v. Beck, 404 F. Supp. 2d 879 (EDNC 2005). Al
though the particular determinations made in those cases are

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Opinion of the Court
not before us, we recognize that the problem they address
is significant. Repetitive or piecemeal litigation presumably
would raise similar concerns. The federal courts can and
should protect States from dilatory or speculative suits, but
it is not necessary to reject Nelson to do so.
The equities and the merits of Hill’s underlying action are
also not before us. We reverse the judgment of the Court
of Appeals and remand the case for further proceedings con
sistent with this opinion.
It is so ordered.