Whitaker et al v. Livingston, Executive Director of the Texas Department of Criminal Justice et al

Filing 133

OPINION on Dismissal. (Signed by Judge Lynn N Hughes) Parties notified. (ghassan, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
June 06, 2016
David J. Bradley, Clerk

Thomas Whitaker, ct. aI.,
Plaintiffs,
1!er5U5

Brad Livingston,

et

aI.,

Defendants.

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Civil Action H'I3'2901

Opinion on Dislnissal
1.

Introduction.
In 2013, Michael Yowell, Thomas Whitaker, and Perry Williams complained that

Texas's method of execution violates the Constitution. Each had been convicted of capital
murder and sentenced to die in separate, individual cases. On October 9, 2013, the State of
Texas killed Yowell by injecting him with five grams of compounded pentobarbital. Texas
will execute Williams onJuly 14, 2016, using the same method. Whitaker's execution has
not been scheduled. Texas moves to dismiss the case.
Williams's and Whitaker's claims will be dismissed because (a) their first, second,
and part of their third claims are barred by limitations, (b) they did not adequately plead
their complaint, and (c) all four claims are unsubstantiated by reliable, articulable, and
demonstrable facts that establish the claims upon which they seek relief.

2.

Background.
A constitutionally acceptable manner of killing people convicted of capital murder

necessarily must exist. In 1982, the State of Texas adopted lethal injection as its sole
method of execution. A team prepares two syringl!s with a drug, and then a medically,

trained person injects a lethal dose through intravenous catheters.' Texas law does not
specify what substance will be used in lethal injections.'
The use of pentobarbital in executions is routine. Courts have found that using a
drug similar in effect to pentobarbital is constitutional. 3 Since July 9, 2012, Texas has used
pentobarbital. It first used compounded pentobarbital in Yowell's execution. Thirty-two
inmates in Texas have been killed with compounded pentobarbital without incident.
Texas initially used pentobarbital purchased from manufacturers; when political
pressure severely limited the supply of manufactured pentobarbital, it began purchasing it
from compounding pharmacies. The plaintiffs claim that the manufactured pentobarbital is
created at facilities that comply with rigorous regulations whereas makers of compounded
pentobarbital are (a) exempt from those regulations and (b) do not use formulas established
by scientific investigations. They say that because some regulations do not apply to
compounding pharmacies, the drugs produced in these facilities are less reliable.
Pentobarbital is an intermediate-acting barbiturate. It is used for therapy and in
executions. Therapeutic uses include inducing a coma after brain damage and preventing
brain damage in some surgeries. Texas is not using it for therapy and does not administer a
therapeutic dose. Two gram doses of pentobarbital C;lre fatal, the five gram doses that Texas
uses are overwhelmingly so. (94 at 2I).
The parties have offered affidavits describing how pentobarbital is made at
compounding pharmacies. (64, 67). Compounding pentobarbital involves dissolving an
active ingredient - pentobarbital sodium salt powdler - in a water-solvent solution. The
mixture is processed into a liquid that can be injected. The compounding pharmacy lists the
components of compounded pentobarbital for injl!ction as: 50mg/mL of Pentobarbital;
"Propylene glycol 40%"; "Alcohol 10%"; "Steril'i! water for injection"; and "Sodium

1

Raby v. Livingston, 600 F'3d 552, 555-56 (5th Gr. 2.010).

The executioner will carry out a capital inmate's sentence "by intravenous injection of a substance
or substances in a lethal quantity sufficient to causl: death and until such convict is dead." TEX.
CODE CRIM. PRO. art. 43.14.
2

3

Glossip v. Gross, 135 S. Ct. 2726, 2733 (2015).
- 2.-

hydroxide and/or hydrochloric acid to adjust pH to approximately 9.5." (89 at I). Once this
process is complete, the solution is tested for sterility, purity, and potency - for reliability.

3.

Procedural History.
For many who oppose the death penalty, no method of execution will ever be

acceptable. The plaintiffs say that they would challenge every method by which Texas
would kill them. (94 at 13'15).
The men sued in 2013, days before Yowell's scheduled execution. When this
lawsuit began, the complaint alleged that acquiring compounded pentobarbital from a
compounding pharmacy rather than a manufacturer creates a risk of severe pain and
infection. It claimed questions existed about contamination, purity, or dilution of the
pentobarbital.
The court denied the plaintiffs' request for a preliminary injunction. (2I) . Texas
administered a lethal dose of compounded pentobarbital to Yowell on October 9, 20 I 3.

(33). The record establishes no indication that his death was cruel. (33).
The plaintiffs amended their complaint and again argued that using compounded
pentobarbital is itself unconstitutional. (37) . Texas HIed a motion to dismiss, and the court
granted it. (43). The Appeals Court remanded for more information.
Much activity has followed, and the case is fundamentally different. The court has
allowed significant discovery that has narrowed the matters in dispute. After many hearings,
the plaintiffs amended their complaint for a second time to state precise claims and to
include their expert's opinion. The focus of this case has shifted from a blanket complaint
that using all compounded pentobarbital is cruel to a question about the purity, sterility,
and potency of each batch bought by Texas. The plaintiffs claim that a lethal dose of an
imagined drug approved by the Food and Drug Administration would be permissible to use
in their executions.
Texas has furnished information about on(~ batch of compounded pentobarbital.
Texas purchased the drug on April 28, 2015. Eagle Analytical Services tested the drug. The
drug passed microbiological tests. The chemical tests showed a 99.8% potency. (71, Exhibit

A). The plaintiffs' expert agrees that post-compour1lding testing verifies the correctness of
the drug. (II I at 45). The plaintiffs have made no concrete, particularized, or nonspeculative claim that the testing was improperly conducted.
Each compounded drug has a beyond use date (BUD). It approximates when a drug
might no longer be reliable. A drug with an expired BUD may still be reliable. The plaintiffs
say that Texas's failure (a) to test the reliability of compounded pentobarbital and (b) to
verify the BUDs creates an unreasonable risk of cruelty. The essence of plaintiffs' complaint
is that Texas will botch their executions by using an unreliable or untested drug.
The plaintiffs claim that no compounded drug should be used after 45 days unless
its reliability is examined. They concede that their position relies on experiments examining
when unreliable drugs are used in therapeutic doses; "there's a fair amount of speculation as
to what would happen" if Texas used a lethal dose after the BUD. (94 at 26). No science
has been offered that shows the effect time has on the use of a dose ten times the
therapeutic use or over twice the lethal dose. The plaintiffs do not explain the nature or
level of pain that Williams or Whitaker would suffer if the lethal dose is administered after
its BUD.
The plaintiffs claim that using expired pentobarbital is a "systemic" problem. The
plaintiffs have not established that Texas has us,:d expired or unreliable compounded
pentobarbital; they have not shown or even claime:d unacceptable harm done to the last
thirty-two prisoners executed with compounded pemobarbital. (II4 at 12).

4.

Amended Complaint.

The plaintiffs have amended their complaint. It claims:

(I )

(2)

Texas denies attorneys access to the inmate immediately before, and
during, the execution in violation of the First, Sixth, and Eighth
Amendments.

(3)

Their execution will be cruel and unusual under the Eighth
Amendment because Texas does not sufficiently test the
compounded pentobarbital, it uses old drugs, and the protocol does
not contain adequate safeguards.

(4)

5.

Texas's unilateral ability to change the execution protocol without
notice violates the Eighth and Fourteenth Amendments' prohibition
on cruel and unusual punishment, their right to notice, and the
opportunity to be heard.

Failure to disclose information about compounded pentobarbital and
concealment of information about the execution procedure violates
the plaintiffs' rights to be free from cruel punishment and to be
heard.

Texas's Stipulation.
The plaintiffs initially complained that Texas had other drugs in its possession that

it could use to kill Williams and Whitaker: propofol, midazolam, and hydromorphone.
They say that under Texas's protocol it could decide to use one of those drugs at any
moment before their executions. They also complained that Texas does not re-test the
compounded pentobarbital for efficacy and reliability before it is used.
Texas stipulates that it will not change its means, method, and procedure before it
kills Williams and Whitaker. Texas will use compounded pentobarbital, test the drug for
reliability shortly before the executions, and will follow its current established execution
procedure when it kills them. Importantly, this stipulation (a) assuages concerns that an
unreliable and untested drug will be used to kill Williams and Whitaker, (b) commits
Texas to using compounded pentobarbital in their executions, and (c) has given Whitaker

'5 '

and Williams months to speak to their attorneys about the protocol that will be followed
when Texas kills them.
The plaintiffs concede that if Williams and Whitaker are administered
compounded pentobarbital that has been re-tested £)r potency, sterility, and purity shortly
before its use, they do not have a constitutional challenge to its use in their executions.
Despite this concession, the court will now address Texas's motion to dismiss.

6.

Standard of Re'Uicw.
Texas moved to dismiss this case after the plaintiffs amended their complaint for

the second time. The court accepts all substantiated allegations in the complaint as true and
construes them in the light most favorable to the plaintiffs. 4 A "claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant may be liable for the misconduct alleged."5 Abstract assertions
supported by hypothetical or speculative facts and thwries are insufficient.

7.

Cruel and Unusual Punishment: The Risk and The Altcrnati'Uc.
Sufficiently to state a claim to challenge Texas's means and method of execution, the

plaintiffs must plead (a) the use of compounded pentobarbital has a demonstrated risk of
severe pain and (b) a readily implementable and feasible alternative method of execution.

6

A prisoner must plead more than a hypothetical possibility that an execution could
go wrong or that he may suffer pain. The plaintiffs must plead facts showing an objectively
intolerable risk of pain because the compounded pentobarbital is "sure or very likely to
cause serious illness and needless suffering, and give rise to sufficiently imminent dangers."7
Their claims must be specific; they cannot merely offer a hypothetical range of errors.

4

See, e.g., Christopher1!. Harbury, 536 US. 403, 406 (:ao02).

'Ashcroft 1!. Iqbal, 556 US. 662, 678 (2009).
6

Glossip, 135 S. Ct. 2726, 2737 (201 5) (quoting Baze 1!. Rees, 553 US. 35, 50 (2008)).

7

ld. at 2737 (quoting Baze, 553 US. at 50).
,6,

A. The Risk.

The amended complaint relies on a rambling of theories to meet the pleading
requirements of Glossip. Williams's and Whitaker's burden under the first prong is not
light. Courts have repeatedly held that executing inmates with pentobarbital meets
constitutional requirements. The plaintiffs speculate that Texas may use compounded
pentobarbital after its BUD or that has not been properly stored or both. Their expert says
that the use of compounded pentobarbital raises concerns about the reliability of the drug
which could risk severe pain. He does not say how those concerns give rise to an increase to
the risk that the plaintiffs will suffer pain more cruel in character or intensity. The plaintiffs
offer no facts that demonstrate that this risk is not more than merely hypothetical nor do
they state the intolerable harm Williams and Whitaker would actually suffer from the
drug's use.
The plaintiffs agree "in principle" that T eX~ls' s stipulation to test the reliability of
the drug before execution renders this case moot. (II I at 48). The complaint does not have
an identifiable risk or specific harm, much less a d,~monstrated, substantial one, that will
result if the testing shows that the drug is sterile, pure, and potent when administered.
The plaintiffs also speculate that some unknown factor will cause unreasonable
harm when the lethal dose of pentobarbital over-sedates the inmate. They do not specify the
effect this will have on the nature or level of pain experienced by Williams or Whitaker.
They also do not specify the added pain that can be attributed to Texas's use of
compounded pentobarbital rather than manufactured pentobarbital to over-sedate the
inmate. At best, the plaintiffs plead the possibility of an episodic, isolated pain event, rather
than an intolerable, likely risk when administering an excessive dose. Conjecturing on a
range of unspecified possible problems with the: execution does not amount to an
intolerable and concrete risk of possible cruelty or a properly pleaded claim.

B. The Altemati'Ve.
The plaintiffs cannot satisfy Glossip's second prong. They have not pleaded a known
and available alternative method of execution that would entail a significantly less severe risk
of unreasonable pain to them. They have not told Texas a known and available drug that
they would like for it to use when it kills them; the law requires that prisoners pick their
own poison.
They allege that "a single dose of an FDA approved barbiturate" used under
"appropriate" safeguards will meet constitutional requirements. (109 at 15). Pentobarbital
is a barbiturate. The FDA certifies that drugs sold

ItO

the public as therapeutic are helpful

and without unreasonable risk; it does not approve drugs to be used in doses that kill
people. Moreover, if the court accepted the plaintiff;' concerns that doses that cause oversedation lead to an unreasonable risk of severe pain, then those concerns apply equally to
their suggested alternative. The plaintiffs have not identified any FDA-approved barbiturate
that when used in a lethal dose "significantly reduces a substantial risk of severe pain."s
Because Williams and Whitaker have not met the pleading requirements to
challenge Texas's method of execution, the second amended complaint must be dismissed.
Alternatively, the court will address each of the plaintiffs' claims.

8.

Statute of Limitations.
Texas says that Williams's and Whitaker's claims relating to the lethal-injection

procedure are time barred. 9 Because Section 1983 has no statute of limitation, Texas's twoyear statute for personal-injury actions governs a method-of-execution challenge.

10

William's and Whitaker's cause of action accrued when each knew or should have known
of the injury.

8

II

Glossip, 135 S.Ct. at 2737

9

Claims one, two, and the part of three challenging Texas's procedure

>0

Walker

'li.

Epps, 550 F'3d 407,415 (5th Cir.2008); Burrell 'li. Newsome, 883 F.2d 416, 419 (5th

Cir.I9 89)·
U

Gonzalez 'li. Wyatt, 157 F'3d 1016, IOU (5th Cir. I998).
·8·

Texas adopted its lethal-injection protocol in

2008.

The

2008

protocol does not

12

violate an inmate's right to be free of cruel and unusual punishment. Texas revised its
execution protocol in

2012,

but the "only difference ... is a change from the use of three

drugs to a single drug."'3 The core procedures that Texas will use to kill Williams and
Whitaker have been in place since at least

2008.

The plaintiffs have known they would be executed by lethal injection since their
convictions became final in
since Texas adopted the

2008

2008

and

2009.

They have known how Texas would kill them

protocol. Whitaker challenged Texas's execution protocol in

his direct appeal to the state that concluded in
injection challenge in his

20ll

2.009.'4

Whitaker also raised a lethal-

federal petition for a writ of habeas corpus. 'S

The plaintiffs filed their complaint on October 1, 2013. Their claims accrued well
before October

,6

1, 20ll.

Claims one, two, and part of three are barred by limitations. Even if these claims
were not precluded, all four claims lack facial plausibility and the facts required to support a
reasonable finding that Texas is liable.

9.

Claim One: Abiliry to Change Execution Method.
Texas law does not mandate what drug it will use in its lethal-injection protocol.

The plaintiffs say that Texas can change the drug and execution protocol without notifying
them, thus violating their Eighth and Fourteenth Amendment rights. The plaintiffs
specifically allege that it impairs the due-process right to notice, an opportunity to be heard,
and access

to

courts. The plaintiffs agree that this is a legal question. (61 at 13).

" Raby 'lI. Li'llingston, 600 F.3d 552,562 (5th Cir. 2010).
'3

Trottie 'lI. Li'llingston, 766 F.3d 450,453 (5th Cir. 2014).

'4

Whitaker'll. State, 286 S.W.3d 355,369 (Tex. Crim. App. 2009).

" Whitaker 'lI. Stephens, 4:lI-CV-2467 (S.D. Tex.), DE

1.

,6 Sec Valle 'lI. Singer, 655 F.3d 1223,1236 (lIth Cir. 20lI) (applying an earlier accrual date when
the only change in protocol was the switch to a new drug); Coory 'lI. Strickland, 479 F'3d 412, 423
(6th Cir. 2007) (applying an earlier accrual date when changes in protocol do not affect the
plaintiff s "core complaint").

- 9-

A state need not disclose every detail of the execution protocol.'7 Before
constitutional process requires notice and an opportunity to be heard, the plaintiffs are
obliged to identify a cognizable liberty or property interest implicated by the protocol or a
change in it. ,8 Simple uncertainty about a method of execution does not give rise to a liberty
interest. '9 No cognizable liberty interest lies in the disclosure of protocol merely so an
inmate can challenge it. zo
State prisoners have a constitutional "right of access to the courts,"" but this right
does not guarantee the ability "to discover grievan.ces, and to litigate effectively once in
court.

"22

The plaintiffs speculate that Texas will change its execution protocol despite Texas

telling the court that it will not. A second layer of speculation leads to their claim that a
change in protocol would prevent them from filing a lawsuit. A court cannot entertain,
much less adjudicate, claims supported merely by speculation overlaid by speculation.

23

Claim one does not raise an issue upon which relief can be granted.

ro.

Claim Two: Access

to

Counsel and the Courts.

Texas's execution protocol says that "[t]he offender may have visits with ... his
attorney(s) on the day of execution at the Huntsville Unit; however, the Huntsville Unit
Warden must approve all visits." (I04, Exhibit

2

at 7)'

'7 Zink v. Lombardi, 783 F.3d 1089, II09 (8th Cir. 20I5); Wellons v. Comm'r Ga. Dep't Corr., 754
F'3d 12.60,12.67 (IIth Cir. 20I4); Sepulvado v. Jindal, 729 F'3d 4I3, 4I9 (5th Gr. 20I3).
,8 'To establish a procedural due process violation, Plaintiff must show that (I) he had a property
or liberty interest that was interfered with by DI!fendants, and (2) Defendants failed to use
constitutionally sufficient procedures in depriving Plaintiff of that right." Kentucky Dep't of
Corrections v. Thompson, 490 US. 454, 460 (I989)·
'9

Whitaker v. Livingston, 732 F.3d 465,467 (5th Cir. 20I3).

,oSe/ls v. Livingston, 750 F'3d 478, 48I (5th Cir. 20I4); Sepulvado v. Jindal, 729 F.3d 4I3, 4I9 (5th
Gr.20I3)
21

Lewisv. Casry, 5I8 US. 343, 350 (I996).

[d. at 354; Zink, 783 F'3d at II 12.; Wellons, 754 F'3d at 12.67; Williams v. Hobbs, 658 F.3d 842,
852 (8th Cir. 20II).

n

'J

US. CONST. art. III, § 2.
- 10-

The plaintiffs complain that Texas's lethal-injection protocol limits communication
with counsel on the day of, and during the process of, the execution. The plaintiffs fear that
they will not be able to petition the courts during the LV. insertion or later. The plaintiffs
insist that they have a right to communicate with attorneys once in the execution chamber,
so they could commence litigation about aspects of the execution.

'4

The plaintiffs do not

identify any specific legal claims that will be inhibited by the lack of in-person access to
counsel in the hours and minutes prior to a schedul(:d execution. Except an intervention by
the governor or a court in a pending case, the die is cast when the execution begins.
The Constitution guarantees Williams and Whitaker an attorney during all stages
of state appeal and federal post-conviction litigation. Long before execution, Texas has
already complied with the condemned's Sixth Amendment right to counsel. '5 They have not
shown that the Sixth Amendment protects against interruptions of attorney-client
communication.
To state a claim for impeding access-to-courts and access-to-counsel, the plaintiffs
must plead "actual prejudice with respect to contemplated or existing litigation, such as the
inability to meet a filing deadline or to present a claim."'6 The right of access is not "an
abstract, freestanding right" but exists to vindicate other rights.'? They have not pleaded
facts to show that in-person communication between an inmate and his attorney on the last
day of his life is likely to result in raising a viable legal claim.
Once again, the plaintiffs only speculate that the warden will impair their ability to
seek redress in court. The plaintiffs do not plead that any non-frivolous legal claim has been

'4 It's ironical that the plaintiffs, who did not personally meet their attorneys until quite late in this
legal action (III at 19'2.0), worry about having them present in the death chamber.
'5 The Sixth Amendment right to counsel it that "once the adversary judicial process has been
initiated, the Sixth Amendment guarantees a defendant the right to have counsel present at all
'critical' stages of the criminal proceedings." Montcjo 'lI. Louisiana, 556 U.S. 778, 786 (2.009)' The
Sixth Amendment right to counsel does not extend beyond direct appeal. Pcnn~l'llania 'lI. Finltry, 481
U.S. 551, 555 (19 87).
,6

Lewis v. Casey, 518 U.S. 343, 354 (1996).

'7

ld. at 35 1
, II -

or will be impeded by some hypothetical deprivation of access. Conjecture as to the nature
and severity of the unreasonable harm they might suffer from the execution is inadequate.
Claim two does not raise an issue upon which relief can be granted.

II.

Claim Three: Eighth and Fourteenth Amendment.
The plaintiffs allege that Texas violates the Eighth and Fourteenth Amendments by

(a) failing to conduct sufficient testing of the compounded pentobarbital prior to injection;

(b) using a beyond use date for compounded pentobarbital that extends far beyond accepted
scientific guidelines; and (c) relying on Texas's current execution protocol. Aside from not
pleading sufficient law or facts to survive dismissal generally, each claim does not rise above
the speculative, press-release level.

A.

Testing.

Texas is not using a new drug. The science and results of using pentobarbital is
known and has been known for some time. Texas tests its compounded pentobarbital for
sterility, purity, and potency. The plaintiffs suggest that errors in testing have or will occur
- a suggestion untethered to reality. They offer no data showing (a) errors in testing exist,

(b) how the integrity of the test is compromised, or (c) that the drug is likely to be defective
if it is mis-tested.
Compounded pentobarbital has successfully killed the condemned in Texas. Texas
will test its drugs before executing these men. Plaintiffs speculate that Texas's compounded
pentobarbital is unreliable, but agree that post-compounding testing establishes the
reliability of the drug. Even if Texas had not agreed to re-test the drug in their executions,
their claim is based on the assumption that by the time that the compounded pentobarbital is
used in executions it has degraded and thus creates a substantial risk of severe pain. Not
only do they not offer facts that the drug actually degrades, they have not specified the type
or extent of pain caused by using degraded drugs in super-lethal doses. They do not plead
any particularized flaw in testing that raises more than a hypothetical risk of harm. This is
an imagined claim.
- 12 -

B.

Beyond Use Date.

The plaintiffs no longer argue that the use of any compounded pentobarbital violates
the Eighth Amendment. The question is the effect of the passage of time - combined with
the way Texas stores the compounded pentobarbital- on its quality, sterility, and potency.
The plaintiffs complain that Texas will use compounded pentobarbital after its BUD
has passed. Texas has not said that it will use the compounded pentobarbital outside the
BUD assigned by the testing company.
The plaintiffs say that the testing company assigns a BUD well after when their
expert says is acceptable. Calling companies that do business with Texas incompetent or
corrupt because of Texas's death penalty may sound good for mudslinging, but it does not
establish a rational claim rooted in real facts.
Despite broad opportunities to do so, the plaintiffs have not described why it would
matter even if the drugs were used after the assigned BUD. The concern is that if the
compounded pentobarbital is old, then it will no longer be reliable. The plaintiffs have no
technical data about the effect of that drug a day, a month, a year, or anytime past the
beyond use date. Their expert asserted in an earlier pleading that the prisoners might get
meningitis because a news clipping said that people did in a batch given to the elderly. They
only allege hypothetical risks; they have not described a significant risk of severe pain
resulting from pentobarbital itself, the compounding, or the agency.
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. The
plaintiffs have claimed that compounded pentobarbital has caused meningitis or other
infections when used for therapy. 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 intolerable risk
of pain during the score of minutes it takes for the lethal dose to kill them.
Williams and Whitaker seem to claim that there is something inherently wrong
with using compounded pentobarbital after the BUD. The BUD merely approximates how

long a drug is guaranteed to be reliable; its passage does not necessitate a change in the
drug's reliability nor does it establish that the pain plaintiffs will suffer will be more cruel in
character or intensity.
Texas will test the drugs before usmg them on the plaintiffs. Williams and
Whitaker will be killed by reliable compounded pentobarbital.

c.

Texas Protocol.

The plaintiffs complain that the training, personnel, access, and procedure are
inadequate. To state a claim they must show that these purported faults (a) are likely to be
true, (b) are sure or very likely to cause serious illness and needless suffering, and (c) give
rise to sufficiently imminent dangers:

8

Inmates have repeatedly challenged Texas's

execution protocol. Concerns similar to the ones raised here have "failed to establish that
the Texas lethal-injection protocol creates a demonstrated risk of severe pain."29 Even to the
extent that the plaintiffs' concerns focus on different elements of the protocol, they do not
plead facts that would entitle them to relief because they have not connected their
accusations to real unreasonable harms that Williams and Whitaker would endure. Quite
simply, "the proper administration of the Texas procedure comports with the Eighth
0

Amendment."3 No allegation that rises above the speculative exists that maladministration
- however generated - causes unintended suffering from Texas's use of compounded
pentobarbital.
Claim three does not raise an issue upon which relief can be granted.

28

Glossip, 135 S. Ct. at 2737 (quotation omitted).

29

Raby, 600 F.3d at 560.

0

3 Ladd v. Livingston, 777 F'3d 286,290 (5th Gr. 2015); see also Sells, 750 F.3d at 480-81; Trottie,
766 F'3 d at 42-53'

12.

Claim Four: Access to Courts.
3I

Prisoners have a right to access the courts. The plaintiffs say that Texas's secrecy
and tardiness in disclosing the execution drug denies them access to the courts.
The plaintiffs have been able to bring suit and litigate an Eighth Amendment claim.
This court has allowed the plaintiffs to legitimize their facially inadequate complaint.
Litigation has uncovered some relevant information about the proposed method of
execution. The plaintiffs want more discovery. Among other things, they want to know
what equipment was used to test the lethal-injection drugs and how and from whom Texas
acquired the drugs.
The plaintiffs' access-to-the-courts argument depends on their ability to show a
32

potential Eighth Amendment violation. Texas has told the plaintiffs what they will kill
them with and how they will do it. There is no denial of access just because they do not get
what they want. When this requested information has been available it has not been used
to support legal claims; it was only used as a tool for opponents of the death penalty to
attack suppliers.
As the Appeals Court noted when allowing Yowell's execution to proceed: "what
plaintiffs are demanding is that, in effect, they be permitted to supervise every step of the
execution process. They have no such entitlement. They must offer some proof that the
state's own process - that its choice of pharmacy, that its lab results, that the training of its
executioners, and so forth - is suspect. Plaintiffs have pointed to only hypothetical
possibilities that the process was defective."" The plaintiffs have not pleaded adequate facts
or law that shows they have been denied any probative information about Texas's execution
procedure.
Claim four does not raise an issue upon which relief can be granted.
J' Prisoners have a constitutional right of access to the courts that is "adequate, effective, and
meaningful." Bounds 'V. Smith, 430 U.S. 817, 822 (1977)' However, this right "guarantees no
particular methodology but rather the conferral of a capability-the capability of bringing
contemplated challenges to sentences or conditions of confinement before the courts." Lewis, 518
U.S. at 54.

J2

Whitaker, 73 2 F.3d at 467.

33

Whitaker, 73 2 F.3 d at 468.

13.

Conclusion.
Williams and \Nhitaker have not established that the use of compounded

pentobarbital poses a severe risk of injury, nor have they named a reasonable, feasible
alternative that Texas should use to kill them. The amended complaint does not offer
reasonable data that undermines what the facts and law establish: Williams and \Nhitaker
will be killed by a lethal dose of tested compounded pentobarbital used through a
constitutional protocol.
"Though the penalty is great and our responsibility heavy, our duty is clear."34 This
case is dismissed.

Signed on -~!.M',LJ£l<.,L.~=----,

2016,

at Houston, Texas.

~.zg-: = ()L~f. ~
Lynn N. Hughes
United States DistrictJudge

34

Rosenberg 1). United States, 346 U.S. 2.73, 2.96 (I953) (Clark,].).
- 16-