    Case: 13-70031   Document: 00512401226    Page: 1   Date Filed: 10/08/2013




                                                                         United States Court of

         IN THE UNITED STATES COURT OF APPEALS                            Appeals

                  FOR THE FIFTH CIRCUIT
                                                                              Fifth Circuit

                                                                          FILED
                                                                       October 8, 2013

                               No. 13-70031
                                                                        Lyle W. Cayce
                                                                               Clerk


THOMAS WHITAKER; PERRY WILLIAMS; MICHAEL JOHN YOWELL,

                                         Plaintiffs–Appellants,

versus

BRAD LIVINGSTON,
Executive Director of the Texas Department of Criminal Justice;
WILLIAM STEPHENS, Director,
Texas Department of Criminal Justice, Correctional Institutions Division;
JAMES JONES; EXECUTIONERS UNKNOWN,

                                         Defendants–Appellees.




                Appeal from the United States District Court
                     for the Southern District of Texas




Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:


     Plaintiffs Thomas Whitaker, Perry Williams, and Michael Yowell appeal
the denial of a motion for preliminary injunction to restrain the defendant
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state officials from conducting executions with pentobarbital procured from
compounding pharmacies. The plaintiffs raise claims under the Eighth and
Fourteenth Amendments, under the Supremacy Clause, and based on an
access-to-the-courts argument. Yowell is scheduled for execution on October 9,
2013.
        To obtain a preliminary injunction, a plaintiff 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 threatened 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 ill not disserve the public
        interest.
Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009) (quoting Speaks v. Kruse,
445 F.3d 396, 399–400 (5th Cir. 2006)). Because plaintiffs have not shown a
likelihood of success on the merits, we affirm the denial of injunctive relief
without examining the other prongs.



                                      I.
        We first address plaintiffs’ claims not explicitly based on the Eighth
Amendment.       They argue that the state’s failure to disclose information
regarding the method of execution in a timely manner violates a constitutional
right of access to the courts. That argument fails for two reasons. First, as the
district court noted, the state complied with requests for information about
how it intended to execute Yowell promptly after the plaintiffs requested that
information. The state gave information timely after it had the information.
        Second, even if there was some delay because of uncertainty on the part
of the state as to how it would proceed with executions, plaintiffs’ access- to-
the-courts argument still hinges on their ability to show a potential Eighth
Amendment violation. One is not entitled to access to the courts merely to
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argue that there might be some remote possibility of some constitutional
violation. Plaintiffs must plead sufficient facts to state a cognizable legal
claim. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (“To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face. . . . The plausibility
standard . . . asks for more than a sheer possibility that a defendant has acted
unlawfully.”). Therefore, plaintiffs must show some likelihood of success on
the merits of the Eighth Amendment claim. A plaintiff cannot argue that if
only he had infinite time—or even just a little bit more time—then he might be
able to show a likelihood of success. To hold otherwise would be to eviscerate
the first requirement of the standard for preliminary injunctions.
      Plaintiffs contend that by failing to disclose the information timely, the
state has thwarted the Supremacy Clause by hindering their ability to
vindicate their federal rights. Again, the state has not failed to disclose timely.
But moreover, this claim, too, rises and falls with the Eighth Amendment
claim. The state does not dispute the applicability of the Supremacy Clause,
which merely makes the Eighth Amendment effective against the state. See
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176–180 (1803); McCulloch v.
Maryland, 17 U.S. (4 Wheat.) 316, 406 (1819). It does not provide its own cause
of action.
      Finally, plaintiffs maintain that Yowell is entitled to more procedural
due process under the Fourteenth Amendment.             To make such a claim,
plaintiffs must demonstrate that Yowell has a cognizable liberty or property
interest. See Sepulvado v. Jindal, No. 13-70007, 2013 WL 4711679, at *4 (Aug.
30, 2013). That claim is arguably foreclosed by Sepulvado, which held that
uncertainty as to the method of execution does not amount to a cognizable
liberty interest.    Id.   Moreover, the state has disclosed the requested


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information regarding the execution, and plaintiffs have not shown why the
hearing on the preliminary injunction was insufficient process.
      Even if the facts here were sufficiently different from those in Sepulvado,
plaintiffs would still have to show success at least on the Eighth Amendment
claim.   Even if the Fourteenth Amendment sometimes protects liberty
interests not explicitly enumerated in the Constitution, we know of no case, in
the context of executions, in which the Supreme Court has found a liberty
interest to exist, based on the contours of the Eighth Amendment, that goes
beyond what that Amendment itself protects. We therefore turn to the Eighth
Amendment claim.


                                     II.
      Under Baze v. Rees, 553 U.S. 35, 61 (2008),
      [a] stay of execution may not be granted on grounds such as those
      asserted here 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.

A plaintiff can therefore succeed on an Eighth Amendment claim in this
context only if he can establish both that the state’s protocol “creates a
demonstrated risk of severe pain” and that that risk “is substantial when
compared to the known and available alternatives.”
      Plaintiffs contend that they can “clearly meet” success on either prong,
but their more serious contention is that if they cannot demonstrate that the
Baze standard is met, it is because they need more time to do so. It is indeed
not unreasonable to assume that if a prisoner has the right to be free from a
demonstrated risk of severe pain when compared to a known and available
alternative, he ought to have the opportunity to prove the risk of pain and the
availability of alternatives. Even so, plaintiffs must point to some likelihood
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that such pain will be severe and that some alternative may exist.           It is
unacceptable to claim that some unspecified amount of time is required, just
in case they might happen to be able to show that there might be some risk of
potentially excessive pain.
      If the state were using a drug never before used or unheard of, whose
efficacy or science was completely unknown, the case might be different. The
state, however, will use a standard amount of pentobarbital for Yowell’s
execution. Plaintiffs argue that because the state has transitioned to using
compounding pharmacies, there are known unknowns because of the
possibility of contamination. That may be true, but plaintiffs must point to
some hypothetical situation, based on science and fact, showing a likelihood of
severe pain.
      None of the examples in their brief shows any such possibility based on
the known unknowns stemming from obtaining drugs from a compounding
pharmacy. Plaintiffs claim that compounding pharmacies are not subject to
stringent FDA regulations, that the active ingredients are obtained from a
global “grey market,” and that there is a chance of contamination. Plaintiffs
claim, along with their expert, that this increases the risk of a more painful
injection, a burning sensation if the acidity is incorrect, or conditions such a
pulmonary embolism. They assert it increases the risk of a potency problem
that may make the drug ineffective in killing (although the laboratory results
for the drug showed a 98.8% potency).
      All of these things may be true. But 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, are suspect. Plaintiffs have pointed
to only hypothetical possibilities that the process was defective.
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      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.               The
demonstrated risk of pain is merely the risk concomitant with any use of
drugs—that they might fail or cause side effects from contamination or a lack
of potency. 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.
      The plaintiffs basically argue not just that there are known unknowns,
but that there may be unknown unknowns; that, if only they had more time,
they might discover something wrong with the drugs. Unknown unknowns,
however, are insufficient to demonstrate a risk of harm; something more is
needed to meet the difficult preliminary-injunction standard.
      The closest case on point does not help the plaintiffs. In Landrigan v.
Brewer, 2010 WL 4269559 (D. Ariz. Oct. 25, 2010), the plaintiff had pointed to
a similar risk of harm where the state received its drugs from foreign, non-
FDA-approved sources and did not reveal, in a timely manner, the source of
the drugs. The plaintiff alleged a more concrete risk than here:
      According to Plaintiff, because [the] supply of sodium thiopental
      lacks the appropriate safeguards, it could be “contaminated with
      toxins that cause pain, as opposed to unconsciousness” or could fail
      to properly anesthetize him, thus resulting in excruciating pain
      when the second and third drugs are administered. Plaintiff
      further alleges that Arizona has feasible alternatives—it can
      obtain sodium thiopental from Hospira when the company starts
      manufacturing the drug again in early 2011, or it can use another
      available, FDA-approved barbiturate.


Id. at *5. The district court concluded that the “use of sodium thiopental from
a non-FDA-approved source raises issues regarding its efficacy and possible
side-effects,” so the court was “unable to determine whether the drug was
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produced by a foreign company that follows standard operating procedures for
the drug’s manufacture or that has no history of contamination in
manufacturing the product.” Id. at *10. The court thus accepted the plaintiff’s
showing that “such drugs are more likely to contain harmful contaminants,”
and it issued a stay of execution. Id. The Ninth Circuit affirmed. 625 F.3d
1144 (9th Cir. 2010).
      The Supreme Court, however, vacated the stay in a one-paragraph
opinion. Brewer v. Landrigan, 131 S. Ct. 445 (2010). It held: “There is no
evidence in the record to suggest that the drug obtained from a foreign source
is unsafe. The district court granted the restraining order because it was left
to speculate as to the risk of harm. But speculation cannot substitute for
evidence that the use of the drug is ‘sure or very likely to cause serious illness
and needless suffering.’” Id. (quoting Baze, 553 U.S. at 50; internal citation
and quotation marks omitted).
      Thus, even in light of a plausible scenario—that the foreign drug could
contain a specific contaminant that would render the anesthetic ineffective—
the Supreme Court held that mere speculation is not enough. There must be
some indication in the record that the drug is very likely to cause needless
suffering. There is no such evidence in the record before us.
      The order denying injunctive relief is AFFIRMED. Yowell’s motion for
stay of execution is DENIED.




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