BIRMINGHAM, Ala. (WIAT) — An Alabama death row inmate scheduled to be put to death later this month is appealing a district court order that dismissed his lawsuit claiming the state violated his rights under the Americans with Disabilities Act.

Willie B. Smith, who is set to be executed Oct. 21 after being convicted of murdering Sharma Ruth Johnson, had sued the Alabama Department of Corrections and the warden of the Holman Correctional Facility, claiming officials did not provide an accommodation that would have aided his understanding of a form asking whether he wished to opt into execution via nitrogen hypoxia. Smith’s IQ is around 70.

“A full-scale IQ score of around 70 to 75 indicates a significant limitation in intellectual functioning,” according to the American Psychological Association.

Execution through the use of nitrogen hypoxia was approved by the Alabama Legislature in 2018, joining Oklahoma and Mississippi as the only other states to allow the practice. An execution using the method, which involves replacing oxygen needed to breathe with nitrogen gas, has never been carried out in the United States.

Under Alabama law, condemned inmates were required to “opt-in” to execution via nitrogen hypoxia during a specific period. Smith failed to do so, but his lawsuit argues that because prison officials had circulated a form for this purpose, they should have provided him with an accommodation to help him understand the form.

In September, U.S. District Judge Emily Marks ruled that because the form circulated by prison officials was not required by law, but only aided death row inmates to opt into death by nitrogen hypoxia, an ADA accommodation was not required. Marks, who was appointed by former President Donald Trump in 2018, said Smith could have opted into the protocol “through any writing he chose.”

In their appeal filed this week, Smith’s lawyers argued that Marks’ order dismissing the suit on jurisdictional grounds “misapplied the law…and is replete with factual errors.”

“Mr. Smith has…standing on his claim that defendants violated his rights under the ADA with respect to the enforcement and implementation of the nitrogen opt-in statute,” the appeal said. “The issue was complicated by the district court simultaneously under- and over-analyzing it.”

Though Marks dismissed the lawsuit, she “formally reprimanded” the Alabama Attorney General’s office for a repeated “misrepresentation” in the death penalty case, which she called “inexcusable.” She also fined Alabama Assistant Attorney General Lauren Simpson $1,500 for the violation of court rules. The AG’s office has said they will appeal the sanction.

Unlike previous executions, Smith’s death will be witnessed by only one member of the media — a reporter with the Associated Press. Prison officials have said the restriction is due to concerns about COVID-19, but the limitation was put in place before vaccines were widely available. Several Alabama news outlets have objected to the change.