The Alabama Attorney General’s Office is asking a judge to dismiss a federal lawsuit from Alabama Death Row inmate Kenneth Eugene Smith, who was set to be executed in November but didn’t die after the clock struck midnight before prison officials were able to complete his lethal injection procedure.

“Allegations of pain related to difficulty achieving intravenous access do not amount to cruel and unusual punishment,” the state argued in its new court filing.

On Monday, Alabama AG Steve Marshall’s office filed a motion to dismiss Smith’s court case in the Middle District of Alabama. An assistant attorney general and deputy solicitor general argued in the filing, “Nearly thirty-five years after he took the life of his victim, Smith continues his attempt to avoid the sentence he earned.”

Smith, 57, was set to die on Nov. 17. But his lethal injection was called off just before midnight, when prison workers couldn’t start intravenous lines needed for the lethal chemicals before the state’s death warrant expired at midnight.

Within hours, Smith’s legal team asked a judge to order the state to preserve all evidence from the execution attempt. A judge agreed, and ordered Smith’s attorneys be able to visit him and that the state preserve evidence.

Later, his legal team argued the state shouldn’t be allowed to seek another execution date for Smith.

Days after the attempted execution, Gov. Kay Ivey ordered a temporary halt to executions in the state pending an internal investigation and said Marshall’s office would not seek additional execution dates while the investigation was ongoing. Since that halt, the Alabama Supreme Court has changed the state’s rule regarding the midnight deadline.

In Monday’s filing, the AG’s Office said Smith’s various legal arguments are moot or barred and that he failed to state a claim “because the facts he alleges do not rise to the level of an Eighth Amendment violation.”

Marshall’s office asked the court to dismiss each of Smith’s claims.

“An ‘attempted’ execution plainly is not a constitutional violation,” the filing states. “Simply put, an alleged error in a past execution, ‘while regrettable, does not suggest cruelty’ as required to establish an Eighth Amendment violation,” it said, quoting from a prior federal lawsuit.

The filing states that “being ‘repeatedly prick[ed] . . . with a needle’ is not cruel and unusual punishment.”

“In other words, an alleged ‘error’ in an execution procedure—even one that causes pain—is not a constitutional violation. Because that is what Smith alleges occurred here, he cannot state a claim.”