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Swearingen v. Collier

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

August 20, 2019

BRYAN COLLIER, et al., Defendants.


          Andrew S. Hanen United States District Court Judge

         The State of Texas has scheduled the execution of Larry Ray Swearingen for August 21, 2019. The Fifth Circuit denied Swearingen a stay of execution on August 16, 2019. Five days before his execution, Swearingen filed a civil rights complaint under 42 U.S.C. § 1983 challenging Texas' method of carrying out his otherwise-constitutional death sentence. (Docket Entry No. 1). Swearingen's complaint raises three claims: (1) a substantial risk exists that he will suffer severe pain during the execution in violation of the Eighth and Fourteenth Amendments; (2) Texas has violated his Fourteenth Amendment rights by denying him access to information about the specific vial of drug to be used in his execution; and (3) a possibility exists that errors will violate Texas state law which prohibits "torture, or ill treatment, or unnecessary pain."[1] Swearingen requests injunctive relief that would (1) require the State to release a vial of pentobarbital for testing or (2) stay his execution.

         Swearingen's arguments come before the Court against a long background of lethal-injection challenges. In 1982, the State of Texas adopted lethal injection as its sole method of execution. Texas law does not specify what substance will be used in carrying out lethal injections. Texas adopted a lethal-injection protocol in 2008 involving a three-drug combination. Texas revised its protocol in 2012 to reflect a shift to pentobarbital as the only agent used in executions, but without any change to its core procedures. See Trottie v. Livingston, 766 F.3d 450, 453 (5th Cir. 2014).[2]

         After manufactured pentobarbital became unavailable, Texas began purchasing pentobarbital from compounding pharmacies.[3] Texas has used compounded pentobarbital in fifty-six executions since 2013. (Docket Entry No. 3 at 23). Compounded drugs have a beyond use date ("BUD") after which a drug might not be reliable. At the core of his complaint, Swearingen argues that Texas plans on using a vial of compounded pentobarbital in his execution that is past its originally established BUD.

         According to an affidavit attached to Swearingen's complaint from an expert in pharmacology, [4] absent extended sterility testing, compounded pentobarbital should only have a BUD ranging from twenty-four hours to forty-five days, depending on the manner of storage. Swearingen's expert alleges that Texas acquired its current supply of pentobarbital on June 18, 2018, but has twice extended the date and has ultimately assigned the vials a BUD of May 6, 2020. The expert alleges that she has not seen any scientific evidence to support Texas' extension of the BUD. The expert identifies various possibilities of improper creation, handling, storage, and purity of the pentobarbital that could potentially cause a risk of pain when administered to Swearingen. Swearingen argues that, by not retesting the drugs for potency and sterility, Texas has subjected him cruel and unusual punishment.

         The defendants have filed a Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted. (Docket Entry No. 3). The defendants argue that all Swearingen's claims should be dismissed as untimely and for failing to state a claim upon which relief may be granted. Also, the defendants argue that Swearingen has not shown an entitlement to injunctive relief or a stay of execution.

         I. Stay of Execution

         Swearingen's lawsuit can only proceed if the Court issues a preliminary injunction, temporary restraining order, or 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).[5] 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 v. McDonough, 547 U.S 573, 584 (2006).

         Generally, "the possibility of irreparable injury weighs heavily in the movant's favor" in a capital case. O 'Bryan v. Estelle, 691 F.2d 706, 708 (5th Cir. 1982). Nevertheless, the United States Supreme Court has ruled that an applicant is not entitled to a stay "[as] a matter of right, even if irreparable injury might otherwise result to the appellant." Nken, 556 U.S. at 427 (internal quotation marks omitted). The death penalty is irreversible, but there must come a time when the legal issues "have been sufficiently litigated and re-litigated so that the law must be allowed to run its course." O'Bryan, 691 F.2d at 708 (quoting Evans v. Bennett, 440 U.S. 1301, 1306 (1979)). Though the movant in a capital case "need not always show a probability of success on the merits, he must present a substantial case on the merits when a serious legal question is involved and show that the balance of equities [i.e., the other three factors] weigh heavily in favor of granting the stay." Celestine v. Butler, 823 F.2d 74, 77 (5th Cir. 1987).

         Other than irreparable injury, the Nken factors weigh heavily against staying Swearingen's execution. Importantly, Swearingen's claims are substantially similar to those raised, and rejected, in other cases. While relying on various constitutional provisions, the core of Swearingen's complaint is a challenge to the use of compounded pentobarbital in lethal injections. In Glossip v. Gross, 135 S.Ct. 2726, 2733 (2015), the Supreme Court adopted two elements for a method-of-execution claim: (1) 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" and (2) the plaintiff "must identify an alternative that is feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain." See also Baze v. Rees, 553 U.S. 35, 46-47 (2008).

         Swearingen is not likely to succeed on the merits of his complaint. From the onset, Swearingen's complaint is deficient for not proposing an alternative feasible method of execution. See Bucklew v. Precythe, __U.S.__, 139 S.Ct. 1112, 1128-29 (2019) ("[W]e see little likelihood that an inmate facing a serious risk of pain will be unable to identify an available alternative-assuming, of course, that the inmate is more interested in avoiding unnecessary pain than in delaying his execution."). Swearingen "suggests that Texas use a firing squad. Firearms when operated by trained individuals are intended to be used, and are proven to be effective, in causing death." (Docket Entry No. 1 at 18). Swearingen's allegations do not suggest that using the firing squad for his imminent execution is feasible or that it could be readily implemented. Texas law and protocol allow for the State to use only one method of execution: lethal injection. The execution warrant specifies that Texas will execute Swearingen by lethal injection. Switching to a different method would require new statutory law, the formulation of new protocol, and the issuance of a new death warrant. Swearingen's proposed alternative is neither feasible nor readily implemented. See Bucklew, 139 S.Ct. at 1128-29.

         Swearingen has also not adequately pleaded Glossip's first element: that Texas' use of compounded pentobarbital is likely to cause serious illness and needless suffering. The Fifth Circuit has routinely denied relief in substantially similar cases. See Whitaker v. Collier, 862 F.3d 490, 501 (5th Cir. 2017); Wood v. Collier, 836 F.3d 534, 540 (5th Cir. 2016); Ladd v. Livingston, 111 F.3d 286, 289 (5th Cir. 2015); Trottie v. Livingston, 766 F.3d 450, 452 (5th Cir. 2014); Campbell v. Livingston, 567 Fed.Appx. 287 (5th Cir. 2014); Sells v. Livingston, 750 F.3d 478, 481 (5th Cir. 2014); Raby v. Livingston, 600 F.3d 552 (5th Cir. 2010). In particular, the Fifth Circuit has summarily rejected other challenges based on Texas' calculation of the BUD. See Battaglia v. Collier, No. 18- 70005, 2018 U.S. App. LEXIS 2648, at *2 (5th Cir. Feb. 1, 2018); Whitaker, 862 F.3d at 496; Wood, 836 F.3d at 536. This Court is bound to follow Fifth Circuit precedent.

         Specifically, the Fifth Circuit in Whitaker addressed almost identical claims and found that raising similar concerns about degraded pentobarbital amounted to pleading hypothetical risks. Whitaker, 862 F.3d at 501.[6] The district court in Whitaker considered various arguments about the possibility of degradation in pentobarbital and found as follows:

The plaintiffs made some assertions about the therapeutic use of old pentobarbital but did not plead any facts about the rate of degradation of compounded pentobarbital. ... Texas administers two and a half times the amount of the drug needed to kill a person. Alleged complications that develop days or years after a therapeutic dose does not establish that Williams or Whitaker will face an ...

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