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Bible v. Lorie Davis-Director Tdcj-Cid

United States District Court, S.D. Texas, Houston Division

June 21, 2018

DANNY BIBLE, Plaintiff,
v.
LORIE DAVIS-DIRECTOR TDCJ-CID, et al, Defendants.

          MEMORANDUM AND ORDER

          Kenneth M. Hoyt United States District Judge

         The State of Texas plans on executing sixty-six-year-old Danny Paul Bible on June 27, 2018. Texas will carry out Bible's execution by the only statutorily authorized means available, lethal injection. On June 8, 2018, Bible filed a Complaint for Injunctive and Declaratory Relief Pursuant to 42 U.S.C. § 1983. (Dkt. No. 1). Bible argues that the planned execution will violate his constitutional rights because various health concerns make it unlikely that a suitable vein can be found, and he will otherwise experience discomfort and pain. Also, Bible argues that the Constitution guarantees a right to access the courts as the State carries out his sentence.

         On June 10, 2018, Bible filed a Motion for a Stay of Execution, a Temporary Restraining Order, and a Preliminary Injunction. (Dkt. No. 3). Bible also moves for discovery. (Dkt. No. 8). The defendants oppose any relief.

         For the reasons discussed below, the Court finds that Bible has not shown an entitlement to a stay of execution, temporary restraining order, or preliminary injunction. The Court will dismiss this case. The Court sets out the reasons for this ruling below.

         BACKGROUND

         Bible killed Inez Deaton in 1979. The physical evidence suggested that Bible had sexually assaulted the victim, stabbed her eleven times with an ice pick, and then dragged her corpse to a bayou. Over the next two decades, Bible committed child sexual assaults, rapes, and murders. Bible confessed to murdering the victim in this case after his arrest for a separate violent sexual assault. In 2003, a Texas jury convicted Bible of capital murder for killing Ms. Deaton during an aggravated rape. He was sentenced to death.

         After Bible unsuccessfully availed himself of state court remedies, this Court denied federal habeas relief in 2014. Bible v. Stephens, 4:13-cv-200 (S.D. Tex. 2014). The Court of Appeals for the Fifth Circuit subsequently denied a Certificate of Appealability, Bible v. Stephens, 640 Fed.Appx. 350 (5th Cir. 2016), and the United States Supreme Court denied certiorari review, Bible v. Davis, __U.S.__, 137 S.Ct. 328 (2016).

         On March 19, 2018, the 351st District Court of Harris County, Texas entered an Execution Order authorizing the Texas Department of Criminal Justice to carry out Bible's execution “by intravenous injection of a substance or substances in a lethal quantity sufficient to cause . . . death.” Texas' execution protocol establishes that the procedure will be carried out by a “drug team” that “shall have at least one medically trained individual. Each medically trained individual shall at least be certified or licensed as a certified medical assistant, phlebotomist, emergency medical technician, paramedic, or military corpsman.” (Dkt. 1, Ex. C at 7).[1] The drug team will prepare a syringe with “100 milliliters of solution containing 5 grams of Pentobarbital.” (Dkt. 1, Ex. C at 8).[2] “Pentobarbital is an intermediate-acting barbiturate. . . .Two gram doses of pentobarbital are fatal, the five gram doses that Texas uses are overwhelmingly so.” Whitaker v. Livingston, 2016 WL 3199532, at *1 (S.D. Tex. 2016).

         After escorting Bible from a holding cell, he will be “secured to the gurney.” (Dkt. 1, Ex. C at 9). The protocol provides to the injection of the pentobarbital:

A medically trained individual shall insert intravenous (IV) catheters into a suitable vein of the condemned person. If a suitable vein cannot be discovered in an arm, the medically trained individual shall substitute a suitable vein in another part of the body, but shall not use a “cut-down” procedure to access a suitable vein. The medically trained individual shall take as much time as is needed to properly insert the IV lines. The medically trained individual shall connect an IV administration set, and start a normal saline solution to flow at a slow rate through one of the lines. The second line is started as a precaution and is used only if a potential problem is identified with the primary line. The [Texas Department of Criminal Justice - Correctional Institutions Division] Director or designee, the Huntsville Unit Warden or designee, and the medically trained individual shall observe the IV to ensure that the rate of flow is uninterrupted.

(Dkt. 1, Ex. C at 9). Witnesses will be allowed into a “appropriate viewing area ONLY AFTER the Saline IV has been started and is running properly . . . .” (Dkt. 1, Ex. C at 9). At that time, the “Huntsville Unit Warden or designee shall instruct the drug team to induce, by syringe, substances necessary to cause death.” (Dkt. 1, Ex. C at 9). Then, “[t]he flow of normal saline through the IV shall be discontinued” and the “lethal dose of Pentobarbital shall be commenced.” (Dkt. 1, Ex. C at 9).

         Numerous cases have unsuccessfully challenged Texas' use of pentobarbital, most recently because Texas now uses a compounded form of the drug. See Whitaker v. Collier, 862 F.3d 490 (5th Cir. 2017); Wood v. Collier, 678 Fed.Appx. 248 (5th Cir. 2017); Sells v. Livingston, 750 F.3d 478 (5th Cir. 2014). The instant case does not challenge the use of pentobarbital itself, but only the possibility that pain will result from the execution process. The gravamen of the instant lawsuit is that “a galaxy of medical issues” will make it “very difficult - if not outright impossible - even for the most experienced and trained medical professional” to establish peripheral IV access. (Dkt. No. 1, 35). Bible's complaint lists a “multitude of deteriorating medical conditions” he suffers from, including:

heart failure, coronary artery disease, chronic venous insufficiency, chronic obstructive pulmonary disease, Parkinson's disease, diabetes, hypertension, and other systemic diseases. As a result of these systemic diseases, his blood does not flow back properly to the heart, causing edema and swelling; his veins are damaged and fragile; and scars from his previous surgeries obscure vein access sites.

(Dkt. No. 1 at 1). With that predicate, Bible makes several assumptions: (1) “attempts to place IV's in Mr. Bible would be futile and likely result in significant pain and suffering”; (2) if the IV is inserted in “a small peripheral vein” he will experience “immense pain” and his “veins may blow”; (3) strapping him to a gurney will “cause shortness of breath that worsens when he is lying down” leaving him gasping for air and choking for the duration of attempts to obtain IV access”; and (4) various health concerns will cause complications after the lethal injection begins. (Dkt. No. 1 at 1-2). Based on those predicates, Bible's complaint raises four grounds for relief:

1. Because of Bible's medical conditions and compromised vein access, implementation of Texas' lethal injection protocol will result in an Eighth Amendment violation.
2. Any attempt to carry out Bible's sentence will result in a lingering death or unsuccessful execution.
3. Texas officials have manifested deliberate indifference to Bible's medical needs, giving rise to circumstances potentially causing severe pain in any execution attempt.
4. Texas protocol violates Bible's right to access the courts.

(Dkt. No. 1). Bible has filed a Motion for a Stay of Execution, a Temporary Restraining Order, and a Preliminary Injunction. (Dkt. No. 3). Bible also seeks discovery relating to his arguments. (Dkt. No. 8).

         The defendants have filed a response in opposition to Bible's request to stay his execution. (Dkt. No. 11) The defendants argue that this action is dilatory, filed years after the finality of Bible's conviction and intended only to delay the execution of his sentence. The defendants argue that the lateness of Bible's filing lessens the credibility of his allegations. In a related argument, the defendants argue that Bible's claims are barred under the relevant statute of limitations. The defendants also argue that Bible's claims are speculative, primarily because medical experts have been able to gain access to Bible's veins when drawing blood.

         STAY-OF-EXECUTION STANDARD AND BIBLE'S DELAY IN BRINGING SUIT

         Bible asks the Court to stay his execution, issue a preliminary injunction, or issue a temporary restraining order. Bible's civil-rights complaint can only proceed if the Court issues a stay of execution. A federal court has inherent discretion when deciding whether to stay an execution. See Nken v. Holder, 556 U.S. 418, 434 (2009); 28 U.S.C. § 2251(a)(1). “[A] stay of execution is an equitable remedy, and an inmate is not entitled to a stay of execution as a matter of course.” Hill v. McDonough, 547 U.S. 573, 583-84 (2006). In deciding whether to issue a stay of execution, a court must consider: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other party interested in the proceeding; and (4) where the public interest lies. See Nken, 556 U.S. at 425-26.[3] “[I]nmates 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.” Hill, 547 U.S at 584.[4]

         Bible's pending motion depends on the operation of equity in his behalf. See Hill, 547 U.S. at 584. Before turning to his specific claims, the Court expresses concerns about the timing of Bible's lawsuit. In the balance of equity, “dilatory behavior” may weigh heavily against a plaintiff. Ramirez v. McCraw, 715 Fed.Appx. 347, 351 (5th Cir. 2017). Bible bases his claims on health conditions that he has suffered from for an extended period of time. While he argues that his health has deteriorated in the past year, Bible bases his complaint on a host of medical concerns that have, apparently, been present for years.

         Bible's complaint does not identify any medical issue that has suddenly arisen, but he chronicles years of health problems. His expert describes how many of his medical issues are linked to a TDCJ van accident in 2003, though his “physical state started rapidly deteriorating about a year ago.” (Dkt. No. 1, Ex. B p. 43).[5] On state habeas review, Bible claimed that the State should not execute him because he no longer poses a societal danger. In doing so, Bible manifested awareness that his health concerns could impact his execution: “This case holds the real potential . . . of an ironic and grotesque spectacle unfolding in the Texas death chamber: an elderly man confined to a wheelchair, unable to use his legs or arms, hoisted out of his wheelchair and assisted onto the death gurney by prison guards and then being executed.” Bible's federal habeas petition raised issues relating to his health, some of which are reflected in the current lawsuit. Then, the pleadings described Bible as “seriously ill and severely disabled.” (Bible v. Thaler, 4:13-cv-200, Dkt. No. 5 at 23).

         Bible's age, weight, and other factors that give rise to this lawsuit are not circumstances of recent vintage. Doctors diagnosed Bible with heart problems many years ago and with Parkinson's Disease two years ago. Doctors observed problems with Bible's blood circulation, such as chronic venous insufficiency, a year ago. Bible has not identified any particular health concern that has not been present for some time, and more especially one that would impede the execution team's ability to access a vein successfully. Bible does not explain why he waited to file this lawsuit if his health ...


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