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Williams v. Collier

United States Court of Appeals, Fifth Circuit

July 7, 2017

THOMAS WHITAKER; PERRY WILLIAMS, Plaintiffs-Appellants,
v.
BRYAN COLLIER; WILLIAM STEPHENS; JAMES JONES; UNKNOWN EXECUTIONERS, Defendants-Appellees.

         Appeal from the United States District Court for the Southern District of Texas

          Before SMITH, PRADO, and GRAVES, Circuit Judges.

          JERRY E. SMITH, Circuit Judge

         Thomas Whitaker and Perry Williams sued state officials under 42 U.S.C. § 1983 to challenge their method of execution under the First, Sixth, Eighth, and Fourteenth Amendments. Because the plaintiffs have not stated a claim on which relief can be granted, we affirm the dismissal of their complaint.

         I.

         Whitaker and Williams were convicted of capital murder and sentenced to death. Whitaker's conviction and sentence were affirmed in 2009, [1] Wil-liams's in 2008.[2] They filed their original complaint in October 2013.[3] The district court dismissed because their date of execution had not been set, so the dispute was not ripe, but we reversed because "the current protocol is presumably 'the means that Texas will select for their execution.'" Whitaker v. Livingston, 597 F.App'x 771, 773, 774 (5th Cir. 2015) (per curiam).

         On remand, the plaintiffs filed a second amended complaint (the subject of this appeal) with four counts. Count One alleges that the lack of a notification requirement, in Texas's execution protocol, for changes to the protocol violates the Eighth Amendment and the Fourteenth Amendment's Due Process Clause. Count Two alleges that the lack of a requirement that prisoners have access to counsel "during the events leading up to and during the course of their execution" violates the First, Sixth, and Eighth Amendments. Count Three alleges that the failure to conduct additional testing of the compounded pentobarbital (the execution drug), use of the compounded pentobarbital after its "Beyond Use Date" ("BUD"), and the absence of other appropriate safeguards violate the Eighth and Fourteenth Amendments. Count Four alleges that the failure to release, or the concealment of, information about the protocol violates the Eighth and Fourteenth Amendments. The defendants, referred to collectively as the Texas Department of Criminal Justice ("TDCJ"), moved to dismiss under Federal Rule of Civil Procedure 12(b)(6).

         While the motion to dismiss was pending, the district court permitted limited discovery. During that time, Texas stipulated that it would conduct additional testing of the compounded pentobarbital before executing Whitaker and Williams.[4] The court eventually granted TDCJ's motion to dismiss all claims. It held that Counts One, Two, and the part of Count Three challenging the lack of additional safeguards were barred by the statute of limitations. It also ruled that Whitaker and Williams had failed to state a claim on the remaining issues. On appeal now, [5] we affirm the dismissal.

         II.

         The statute of limitations for Section 1983 method-of-execution claims is the same as the general personal-injury limitations for the state of conviction. Walker v. Epps, 550 F.3d 407, 411-12 (5th Cir. 2008). In Texas, a personal-injury action must be brought "not later than two years after the day the cause of action accrues." Tex. Civ. Prac. & Rem. Code Ann. § 16.003 (West 2016). A method-of-execution cause of action accrues "on the date direct review of a plaintiff's conviction and sentence is complete" or "in the event a state changes its execution protocol after a death-row inmate's conviction has become final . . . on the date that protocol change becomes effective." Walker, 440 F.3d at 414.

         The plaintiffs filed their original complaint more than two years after their convictions and sentences became final, so to benefit from a more recent accrual date, they must show a change in the protocol. They maintain that TDCJ's September 2013 change from manufactured to compounded pentobarbital "constituted a substantial change to the TDCJ protocol" that "should be the date that limitations for [plaintiffs'] section 1983 claims accrued." Alternatively, they contend that limitations has not begun to run because they are subject to a continuing injury resulting from TDCJ's ability to change its protocol at any time. We must decide whether the change to compounded pentobarbital can serve as the substitute accrual date and, if so, for which specific parts of the protocol.[6]

         Walker did not decide what kind of change would be sufficient to reset the accrual date or how much of the protocol would be challengeable. Id. at 415. So far, we have only assumed arguendo that the most recent change―in 2013―is the accrual date where the claims were time-barred regardless of the date chosen. See Wood v. Collier, No. 16-20556, ___ F.App'x ___, 2017 WL 892490, at *1 (5th Cir. Mar. 6, 2017) (per curiam). We did not decide whether that September 2013 date―which we termed "the most generous accrual point possible"―or an earlier date (given that "[s]ome of the aspects of Texas's death penalty protocol . . . have not changed since 2008") was the appropriate accrual date. Id. at *1 n.7.[7]

         The Eleventh Circuit requires that, for the accrual date to reset, a change to the protocol must be substantial. Gissendaner v. Comm'r, Ga. Dep't of Corr., 779 F.3d 1275, 1280 (11th Cir.) (per curiam) (quoting another source). Moreover, "a claim that accrues by virtue of a substantial change in a state's execution protocol is limited to the particular part of the protocol that changed." Id. at 1280-81. "In other words, a substantial change to one aspect of a state's execution protocol does not allow a prisoner whose complaint would otherwise be time-barred to make a 'wholesale challenge' to the state's protocol." Id. at 1281.

         We agree with the Eleventh Circuit: To reset the accrual date, a change to an execution protocol must be substantial, and any new accrual date is applicable only to the portion of the protocol that changed. See id. at 1280-81. In permitting Section 1983 method-of-execution claims, the Supreme Court acknowledged that such claims, where they entail a stay of execution, can unreasonably delay imposition of the sentence. Hill v. McDonough, 547 U.S. 573, 583-84 (2006). "Repetitive or piecemeal litigation presumably would raise similar concerns." Id. at 585. The most straightforward way to avoid that is to place reasonable limits on the type of change that resets the accrual date instead of allowing a proliferation of claims that could indefinitely delay the sentence, as well as creating a perverse incentive for states to refuse to make the very changes the plaintiffs are seeking.

         The definition of "substantial" requires further elaboration. The plaintiffs are correct that setting the level of abstraction at lethal injection, as the district court seemed to suggest, [8] is too strict. We cannot say that the use of any injectable substance that causes death is always an insignificant change, because there could be substances that do create a "substantial risk of serious harm." Glossip v. Gross, 135 S.Ct. 2726, 2737 (2015) (quoting Baze v. Rees, 553 U.S. 35, 50 (2008)). But a limit has to be drawn to avoid "[r]epetitive or piecemeal litigation." Hill, 547 U.S. at 585.

         Again, we follow the Eleventh Circuit. The plaintiff in Gissendaner challenged the constitutionality of Georgia's switch from manufactured to compounded pentobarbital. The court held that was "not a substantial change because the switch between two forms of the same drug does not significantly alter the method of execution." Id. at 1282. We agree.

         Applying these rules, the district court was correct to dismiss Counts One, Two, and part of Three as time-barred. Whitaker's and Williams's convictions and sentences were affirmed by the Texas Court of Criminal Appeals in 2009 and 2008, respectively.[9] They sued in 2013, well after the expiration of the two-year limitations period for unchanged parts of the protocol. The lack of a notice requirement, the lack of access to counsel during the execution, and the list of additional safeguards in Count Three were all claims that existed as of the May 2008 execution protocol and have not been altered since.[10] These claims are time-barred.

         The remaining claims in Count Three, regarding retesting and the BUD of the compounded pentobarbital, would be time-barred under the new rule, because the 2013 change to compounded pentobarbital is not substantial. But, in addition to the 2013 change, TDCJ also changed from a three-drug to a one-drug protocol between 2008 and 2012. Because no party raises whether that change is substantial, we do not decide that question. The plaintiffs also do not specifically identify the date of this change in their complaint, although their brief says it was in 2012. The district court identifies this date as well but relies on another case for that proposition.[11] Given the lack of briefing and the importance of this question, we assume, arguendo only, that these claims are not time-barred.[12]

         Alternatively, the plaintiffs maintain that limitations have not run because the plaintiffs are subject to a continuing injury on account of the lack of a notice provision. This theory is all but foreclosed by Walker, 550 F.3d at 417, which addressed a similar claim regarding Mississippi's execution protocol. That state defines a continuing tort as "wrongful conduct that is repeated until desisted." Id. (quoting Stevens v. Lake, 615 So.2d 1177, 1178 (Miss. 1993)). Based upon that definition, we held that the protocol was not a continuing tort because "[t]he challenged protocol will affect each plaintiff but once." Id. In Texas, a continuing tort occurs where "the wrongful conduct continues to effect additional injury to the plaintiff until that conduct stops."[13]Given the similarities in definitions, TDCJ's execution protocol also is not a continuing tort under Walker.

         III.

         Even if the plaintiffs sued timely, they have failed to state a claim.[14] A dismissal for failure to state a claim under Rule 12(b)(6) is reviewed "de novo, accepting all well-pleaded facts as true and viewing those facts in the light most favorable to the plaintiff." Bowlby v. City of Aberdeen, 681 F.3d 215, 219 (5th Cir. 2012) (internal quotation marks and citation omitted). A complaint must be "plausible on its face"[15] based on "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."[16] "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."[17]

         A.

         The plaintiffs rely on several constitutional amendments, but the core of their suit is a challenge to the method of execution under the Eighth Amendment. In Glossip, 135 S.Ct. at 2737, a majority of the Court, in reviewing a preliminary injunction, adopted two elements for a method-of-execution claim. The method of execution must first "present[] a risk that is sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers." Id. (quoting Baze, 553 U.S. at 50). "[T]here must be a substantial risk of serious harm, an objectively intolerable risk of harm that prevents prison officials from pleading that they were subjectively blameless for purposes of the Eighth Amendment." Id. (quoting Baze, 553 U.S. at 50). Second, the plaintiff "must identify an alternative that is 'feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain.'" Id. (quoting Baze, 553 U.S. at 52). We use those same elements when reviewing whether the plaintiffs have sufficiently pleaded a method-of-execution claim to survive a Rule 12(b)(6) motion to dismiss.[18] The plaintiffs have not done that.

         B.

         Count Three addresses the method-of-execution claims regarding the compounded pentobarbital itself. Under the first element of Glossip, the plaintiffs allege that the fact that there was only a single test of the execution drugs conducted before delivery to TDCJ means that there is a substantial risk of serious harm, because "this lack of information and testing makes it impossible to determine to what extent the compounded pentobarbital has degraded and what the risks to the inmate might be." The plaintiffs further aver that the BUD that the compounding pharmacy assigned to the pentobarbital "is not supported by the relevant provisions of the [United States Pharmacopeia], and in fact, extends far beyond the recommended BUD." The plaintiffs maintain that this "raises grave concerns about potency, sterility, and stability of the pentobarbital, and thus of the risk of severe pain to the inmate."

         With respect to the second element of Glossip, the plaintiffs contend that TDCJ could alternatively use "a single dose of an FDA approved barbiturate, applied with the appropriate safeguards and transparency that apply to both the execution process and the manner in which the drugs are selected, purchased, stored, and tested."[19] The plaintiffs also theorize that the protocol does not contain various other safeguards that would allow TDCJ to "determine whether an inmate is subjected to severe pain at the time of his execution."[20]

         1.

         We addressed similar claims to Whitaker's and Williams's in Wood, in which the plaintiffs sought stays of executions as part of their Section 1983 method-of-execution claims, to-wit:

(1) Texas's use of compounded pentobarbital absent re-testing shortly before execution violates the Eighth and Fourteenth Amendments by creating a substantial risk of severe pain; (2) Texas's refusal to disclose elements of its execution protocol violated Appellants' First, Eighth, and Fourteenth Amendment rights to be free from cruel and unusual punishment, due process, notice, an opportunity to be heard, and access to the courts; (3) voluntary re-testing of the pentobarbital that will be used to execute plaintiffs in another suit created a constitutional right to such re-testing for all prisoners; and (4) the lack of a requirement that Texas notify the Appellants of any changes to the drugs or to the lethal injection protocol that will be used to carry out their sentences impairs protection of their right to be free from cruel and unusual punishment and to due process under the Eighth and Fourteenth amendments.

Wood v. Collier, 836 F.3d 534, 537 (5th Cir. 2016). In seeking a stay, the Wood plaintiffs relied solely on their retesting/equal-protection claim. We denied the stay because the retesting itself was not required by the Eighth Amendment, irrespective of the equality of its application.[21] "[R]elying on conjecture regarding the drugs' beyond-use dates and compounding, the prisoners urge[d] only that '[t]esting the compounded pentobarbital shortly before its use ensures the prisoner will not suffer severe pain . . . .'" Id. at 540. "But this assertion fail[ed] to reach the Eighth Amendment bar on unnecessarily severe pain that is sure, very likely, and imminent." Id.

         The Eighth and Eleventh Circuits have addressed method-of-execution claims regarding compounded pentobarbital at the motion to dismiss stage and found the complaints insufficient.[22] In Zink, 783 F.3d at 1100, the plaintiffs alleged that "the use of compounding pharmacies 'often results in drugs which are contaminated, sub-potent or super-potent, or which do not have the strength, quality or purity' of FDA-regulated drugs." The plaintiffs identified four specific risks that created: (1) sub- or super-potency that either left the prisoner alive but seriously injured or suffocated him to death before he was rendered unconscious; (2) allergic reactions from contamination; (3) pulmonary embolisms from foreign particles; and (4) burning from the drug's improper pH. Id. at 1099-1100. The Eighth Circuit held those allegations were too speculative to survive a motion to dismiss, because they were "descriptions of hypothetical situations in which a potential flaw in the production of the pento-barbital or in the lethal-injection protocol could cause pain." Id. at 1101.

         Whitaker and Williams pleaded a related claim that the single test of the execution drugs conducted before delivery to TDCJ presents a substantial risk of serious harm because "this lack of information and testing makes it impossible to determine to what extent the compounded pentobarbital has degraded and what the risks to the inmate might be." If pleading hypothetical risks was insufficient to state a claim in Zink, id. at 1101, and Gissendaner, 779 F.3d at 1283, and we do not see a reason to split with our sister circuits' holdings, then the claim that additional testing is required to identify an otherwise unknown risk is surely insufficient. By the first element's own terms, the plaintiffs must make factual allegations as to the substantial risk of the severe pain instead of pleading ignorance. Glossip, 135 S.Ct. at 2737.

         Whitaker's and Williams's claim that using compounded pentobarbital after its BUD risks severe pain also does not include sufficient factual assertions to survive a motion to dismiss. They claim that the BUD assigned to the drug by TDCJ "is not supported by the relevant provisions of the [United States Pharmacopeia], and in fact, extends far beyond the recommended BUD." This, allegedly, "raises grave concerns about potency, sterility, and stability of the pentobarbital, and thus of the risk of severe pain to the inmate." Again, this is the type of "speculation that the current protocol carries a substantial risk of severe pain" that is insufficient even at the motion-to-dismiss stage.[23]

         2.

         The plaintiffs have failed to plead an alternative method of execution as required by Glossip, 135 S.Ct. at 2737. The "'naked assertion' that other methods would be constitutional, devoid of further factual enhancement, fails to state a claim under the Eighth Amendment." Zink, 783 F.3d at 1103. The complaint includes no factual contentions that these alternatives "significantly reduce a substantial risk of severe pain." Glossip, 135 S.Ct. at 2737 (quoting Baze, 553 U.S. at 52). The plaintiffs merely advance the notion that there are FDA-approved barbiturates that could be administered with appropriate safeguards. The allegation that there are available drugs that could be handled properly is little more than a concession that there are constitutional ways for TDCJ to carry out executions.

         3.

         The plaintiffs assert in Count Three that TDCJ has "insufficient safeguards in the current execution protocol to protect them from the risk of cruel and unusual punishment at the time of their execution." This count also fails to state a claim.

         Once again, there are no factual assertions that would allow the court reasonably to infer that the lack of these safeguards creates a "substantial risk of serious harm." Id. (quoting Baze, 553 U.S. at 50). The pleading merely lists the alleged deficiencies and states that they are necessary to avoid "the risk of cruel and unusual punishment" because without them "TDCJ cannot determine whether an inmate is subjected to severe pain at the time of his execution." The allegation that the risk of pain is indeterminate fails the requirements of a method-of-execution claim on its face. Even if the pleading had added the ...


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