A Section 1983 action should be used to bring a method-of-execution claim, even if the petitioner has identified an alternative method of execution not authorized by state law, the U.S. Supreme Court held June 23 in Nance v. Ward.
Michael Nance was sentenced to death in Georgia.
Later, he brought suit under Sec. 1983, alleging Georgia’s lethal injection method of execution violates the Eighth Amendment, as applied to him, because it would cause substantial risk of severe pain due to his impaired veins.
To comply with Supreme Court precedent that he identify an alternative execution method, he proposed a firing squad.  However, Georgia law did not allow execution by firing squad.
The Eleventh Circuit rejected Nance’s suit on grounds that Sec. 1983 was the wrong procedural vehicle to bring his claim.  The Eleventh Circuit held Nance must bring his claim in habeas corpus, since he was seeking to “invalidate” his death sentence.
The Supreme Court reversed, in a 5-4 opinion.
The scope of Sec. 1983 and federal habeas corpus differs, the Court said.
Sec. 1983 applies when a petitioner alleges state officials are depriving him of a constitutional right, the Court said.  By contrast, habeas applies when a petitioner seeks relief that would “necessarily imply the invalidity of his conviction or sentence.”
Nance “is not challenging the death sentence itself; he is taking the validity of that sentence as a given,” the Court said.  “And he is providing the State with a veritable blueprint for carrying the death sentence out” by identifying an alternative execution method.
“The substance of the claim, now more than ever, thus points toward Section 1983,” the Court said.
Granting relief to petition would not – as required for habeas – “necessarily prevent the State from carrying out its execution,” the Court said.
That is true “even if the alternative route necessitates a change in state law,” the Court said.  “Nance’s requested relief still places his execution in Georgia’s control.”
“Assuming it wants to carry out the death sentence, the State can enact legislation approving what a court has found to be a fairly easy-to-employ method of execution,” the Court said.
States routinely change their laws to comply with court decisions, the Court said.
The Court concluded by warning petitioners that “dilatory tactics” in bringing method-of-execution claims should not be allowed.
“[W]e do not for a moment countenance ‘last minute’ claims relied on to forestall executions,” the Court said. 
“[C]ourts must consider whether such a challenge could have been brought earlier or otherwise reflects a prisoner’s attempt at manipulation” in deciding whether to allow such claims to proceed, the Court concluded.
Justice Barrett dissented, in an opinion joined by Justices Thomas, Alito and Gorsuch.