United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
Kenneth M. Hoyt United States District Judge
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
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.
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
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.
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).
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
The drug team will prepare a syringe with “100
milliliters of solution containing 5 grams of
Pentobarbital.” (Dkt. 1, Ex. C at 8).
“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.
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).
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
(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).
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
STANDARD AND BIBLE'S DELAY IN BRINGING SUIT
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. “[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.
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.
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). 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).
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 ...