Tommy Sells, et al v. Brad Livingston, et al

Filing

REVISED UNPUBLISHED OPINION FILED (AS TO TOMMY LYNN SELLS ONLY). [7602047-2] [14-70014]

Case: 14-70014

Document: 00512585787

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Date Filed: 04/04/2014

REVISED April 4, 2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 14-70014
TOMMY LYNN SELLS; RAMIRO HERNANDEZ

FILED
April 2, 2014
Lyle W. Cayce
Clerk

Plaintiffs -Appellees

v.

BRAD LIVINGSTON, Executive Director, Texas Department of Criminal
Justice, WILLIAM STEPHENS, Director, Correctional Institutions Division,
Texas Department of Criminal Justice, JAMES JONES, Senior Warden,
Huntsville Unit, Huntsville, Texas, and UNKNOWN EXECUTIONERS
Defendants - Appellants

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:14-CV-832
Before JOLLY, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
The Defendants, appeal from the grant of a temporary injunction and a
stay of the execution of Plaintiff, Tommy Lynn Sells, set for Thursday, April 3,

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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2014. 1 The State has also moved to vacate the stay. We grant the motion and
reverse the district court’s order.
I.
Sells was convicted and sentenced to death for the December 31, 1999
capital murder of Kaylene Harris. The evidence at trial established that Sells
secretly entered the trailer home of Terry Harris, an acquaintance of Sells,
during the early morning hours of December 31, 1999. Armed with a butcher
knife, Sells explored the residence. After looking in various rooms, he went into
a bedroom where two young girls were sleeping on bunk beds. Sells sexually
assaulted thirteen-year-old Kaylene Harris, blocked her way and stabbed her
when she tried to escape, then cut her throat and left her to die. Sells then
went over to Kaylene’s eleven-year-old companion, Krystal Surles, who was
still on the top bunk bed, and cut her throat. Krystal survived but was unable
to speak because her vocal cords had been nearly severed. She later supplied a
description of the man who had attacked her, and Sells was subsequently
identified and arrested. Sells has previously appealed the conviction and
sentence that brought him to this fast-approaching April 3rd execution date,
and unsuccessfully sought relief in both state and federal courts.
On April 1, 2014, Sells filed a § 1983 complaint in the district court and
additionally moved for a TRO and preliminary injunction and stay of his
impending execution. On April 2, 2014, the district court granted the motions.
II.
We review a preliminary injunction for abuse of discretion. See Janvey
v. Alguire, 647 F.3d 585, 591–92 (5th Cir. 2011). “Despite this deferential standard, ‘a decision grounded in erroneous legal principles is reviewed de novo.’”

This opinion addresses only Sells’s appeal. Hernandez’s appeal will be resolved by
another panel at a later date.
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Id. at 592 (quoting Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009). “As
to each element of the district court’s preliminary-injunction analysis, the
district court’s findings of fact are subject to a clearly-erroneous standard of
review, while conclusions of law are subject to broad review and will be
reversed if incorrect.” Id. (internal quotation marks omitted).
To be entitled to a preliminary injunction or a stay of execution a movant
must show “a substantial likelihood of success on the merits” and that the
balance of harms tips in his favor. See Tamayo v. Stephens, No. 14-70003, 2014
WL 241744, at *3 (5th Cir. Jan. 22, 2014) (citing Adams v. Thaler, 679 F.3d
312, 318 (5th Cir. 2012)(stay of execution), and Janvey v. Alguire, 647 F.3d 585,
595 (5th Cir. 2011)(preliminary injunction)). When the requested relief is the
“extraordinary remedy” of preliminary injunction, a movant must establish:
(1) a substantial likelihood of success on the merits,
(2) a substantial threat of irreparable injury if the injunction is not
issued,
(3) that the threated injury if the injunction is denied outweighs
any harm that will result if the injunction is granted, and
(4) that the grant of an injunction will not disserve the public
interest.
Sepulvado v. Jindal, 729 F.3d 413, 417 (5th Cir. 2013)(quoting Byrum, 566
F.3d at 445 (quoting Speaks v. Kruse, 445 F.3d 396, 399-400 (5th Cir. 2006)),
r’hrg. Denied, 739 F.3d 716 (Dec. 23, 2013), pet. for cert. filed (Jan. 27,
2014)(No. 13-892). Similarly, when the requested relief is 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 parties interested in the
proceed; and (4) where the public interest lies.

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Nken v. Holder, 556 U.S. 418, 434 (2009)(quoting Hilton v. Braunskill, 481 U.S.
770, 776 (1987).
Sells complains that he has not been provided with sufficient information
about the pentobarbital the state will use in carrying out his execution. He
seeks the source of the pentobarbital, documentation reflecting the purchase
of the drug, the timing and means of storage of the drug, the date of
manufacture/mixing of the drug, any lot numbers which may exist, the raw
ingredients used to make the drug and the source of same, the testing that was
conducted on the drug and the results of that testing, and the laboratory and
names of its personnel which conducted the testing.
The state, however, has provided the following information. The
execution will be carried out consistent with the Texas Department of Criminal
Justice’s Execution Procedure established on July 9, 2012, and implemented
in the seven most recent executions. Under this procedure, the TDCJ will
administer a five-gram dose of pentobarbital obtained from a licensed
compounding pharmacy within the United States. The batch from which the
dose will be taken has been tested by an independent laboratory. That test
revealed that it has a potency of 108%, and is free of contaminants.
The Eighth Amendment prohibits “wanton exposure to ‘objectively
intolerable risk,’ not simply the possibility of pain.” Baze v. Rees, 553 U.S. 35,
61–62 (2008) (quoting Farmer v. Brennan, 511 U.S. 825, 846, and n.9 (1994)).
In Baze v. Rees, the Court stated: “A stay of execution may not be granted on
[Eighth Amendment grounds] unless the condemned prisoner establishes that
the state’s lethal injection protocol creates a demonstrated risk of severe pain.
He must show that the risk is substantial when compared to the known and
available alternatives.” Id. at 61.
If the State here were using a drug never before used or unheard of,
whose efficacy or science was completely unknown, the case might be different.
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Plaintiff argues that because the State has transitioned to a new source for the
compounded pentobarbital, there are unknowns because of the possibility of
improper compounding or contamination.

But plaintiff cannot rely on

speculation alone. 2 Plaintiffs must point to facts or evidence based on science
and fact showing the likelihood of severe pain. See Whitaker v. Livingston, 732
F.3d 465 (5th Cir. 2013).
Sells is scheduled to be executed in accordance with the TDCJ July 9,
2012 execution procedure which is well-known to petitioner and his counsel.
The drug has been used across the nation and in thirty executions in Texas
alone. In Thorsen v. Epps, 701 F.3d 444, 447 (5th Cir. 2012) this court decided
that Texas’ single drug protocol is acceptable under Baze.
We read Whitaker, 3 relied on by the district court, as holding no more
than petitioner had failed to show a likelihood of success that his 14th and 8th
Amendment rights would be violated. The case did not purport to impose and
define baseline disclosure requirements for the drug if the state obtained a
supply from a new compounder.

See Hill v. McDonough, 547 U.S. 573, 585 (2006) (Noting that “[f]ederal courts can
and should protect States from dilatory or speculative suits, . . . .”).
3 In Whitaker v. Livingston, 732 F.3d 465, 468-69 (5th Cir. 2013) (per curiam), this
court was provided with expert reports very similar to those provided in the present case. As
in this case, the expert reports in Whitaker also addressed a risk of increased pain allegedly
associated with compounded pentobarbital. As in this case, the expert reports in Whitaker
also attributed this risk of increased pain to the potential for impurities, contamination, lack
of potency, excess of potency, and improper acidity. Both sets of expert reports suggest that
these risks are present because “compounding pharmacies are not subject to stringent FDA
regulations” and “the active ingredients are obtained from a global grey market.” In
Whitaker, however, we concluded that this evidence was insufficient to support the grant of
a preliminary injunction to stay an execution. “Even if plaintiffs’ hypothetical situations were
to come to pass, they would merely demonstrate a risk of severe pain, not that that risk was
substantial when compared to known and available alternatives. . . . Plaintiffs have not
shown that the risk of such contamination is substantially greater than from a customary
pharmacy or from any other source that the state could use for its drugs, as required by Baze.”
Whitaker, 732 F.3d at 468-69.
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This court’s decision in Sepulvado v. Jindal, 729 F.3d 413 (5th Cir. 2013),
controls this case. In that case, the plaintiff argued that the state must disclose
its protocol for the pentobarbital and the use of that drug before it can satisfy
his due process rights. We stated: “There is no violation of the Due Process
Clause from the uncertainty that Louisiana has imposed on Sepulvado by
withholding the details of its execution protocol. Perhaps the state’s secrecy
masks ‘a substantial risk of serious harm,’ but it does not create one. Having
failed to identify an enforceable right that a preliminary injunction might
safeguard, Sepulvado cannot prevail on the merits.”
In sum, plaintiffs are speculating that the newly acquired pentobarbital
being supplied by a new compounder may be different and may cause a risk of
severe pain. Speculation is not enough. Plaintiffs have failed to demonstrate
a likelihood of success on the merits.
We therefore grant the motion to vacate the stay. We also reverse the
preliminary injunction.
REVERSED.
MOTION GRANTED.

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