     Case: 16-20556       Document: 00513897983         Page: 1     Date Filed: 03/06/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                                                      Fif h Circuit

                                                                                     FILED
                                       No. 16-20556
                                                                                  March 6, 2017
                                                                                  Lyle W. Cayce
                                                                                       Clerk
JEFFERY WOOD; ROLANDO RUIZ; ROBERT JENNINGS; TERRY
EDWARDS; and RAMIRO GONZALES,

               Plaintiff - Appellants

v.

BRYAN COLLIER, Executive Director, Texas Department of Criminal
Justice; LORIE DAVIS, Director, Texas Department of Criminal Justice,
Correctional Institutions Division; JAMES JONES, Senior Warden,
UNKNOWN EXECUTIONERS,

               Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CV-2497


Before HIGGINBOTHAM, DENNIS, and ELROD, Circuit Judges.
PER CURIAM: *
       Plaintiffs appeal the dismissal of their 28 U.S.C. § 1983 suit challenging
Texas’s death penalty protocol as violative of their right to be free from an
undue risk of serious pain under the Eighth Amendment and as violative of


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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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                                       No. 16-20556

their right to equal protection under the law under the Fourteenth
Amendment. Previously, we denied a stay, finding that Plaintiffs were unlikely
to succeed on the merits of their appeal. 1 Nothing subsequent leads us to
believe that conclusion was in error, and we affirm dismissal of those claims
for the reasons previously stated.
       Additionally, Plaintiffs now appeal the dismissal of their other claims,
which center on other aspects of Texas’s death penalty protocol, as time
barred. 2 The statute of limitations for § 1983 claims for each of the Plaintiffs
is controlled by Texas’s personal injury statute of limitations. 3 In Texas, the
statute of limitations for a personal injury runs “two years after the day the
cause of action accrues.” 4 A cause of action for a method-of-execution claim
accrues at the later of two dates: (1) the conclusion of direct review or (2) the
adoption of the challenged protocol. 5
       Direct review of each of the Plaintiffs’ convictions ended between seven
and fourteen years ago. 6 Texas last changed its death penalty protocol by
switching to compounded pentobarbital in September 2013, which serves as



       1  Wood v. Collier, 836 F.3d 534 (5th Cir. 2016).
       2  Specifically, the district court dismissed as time barred Plaintiffs’ claims that: (1)
the use of compounded pentobarbital violates the Eighth and Fourteenth Amendments
because it creates a risk of severe pain that could be mitigated by the use of available
alternative methods; (2) Texas’s death penalty protocol injures Plaintiffs’ rights under the
First, Eighth, and Fourteenth Amendments by failing to disclose information regarding the
injection drug and by concealing certain information about how the executions will be
performed; and (3) the lack of a requirement to notify them about changes regarding the
protocol deprives Plaintiffs of their ability to protect their Eighth Amendment rights in
violation of the Eighth and Fourteenth Amendments.
        3 Walker v. Epps, 550 F.3d 407, 412 (5th Cir. 2008); see also Wilson v. Garcia, 471 U.S.

261, 279 (1985).
        4 TEX. CIV. PRAC. & REM. CODE ANN. § 16.003 (West 2016).
        5 Walker, 550 F.3d at 414.
        6 See Gonzales v. State, 2009 WL 1684699 (Tex. Crim. App. June 17, 2009); Edwards

v. State, 2006 WL 475783 (Tex. Crim. App. Mar. 1, 2006); Wood v. State, 18 S.W.3d 642 (Tex.
Crim. App. 2000); Ruiz v. State, No. AP-72,072 (Tex. Crim. App. Feb. 25, 1998); Jennings v.
State, No. AP-70,911 (Tex. Crim. App. Jan. 20, 1993).
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                                       No. 16-20556

the latest possible accrual point for any of the Plaintiffs’ causes of action. 7
Plaintiffs’ complaint was filed in the district court on August 12, 2016, outside
of the two-year limit under the latest-in-time 2013 accrual date. 8 The district
court did not err in dismissing those claims as time barred. We affirm. All
outstanding motions are denied as moot.




       7 This is the most generous accrual point possible. Some of the aspects of Texas’s death
penalty protocol Plaintiffs challenge have not changed since 2008. Using either date,
however, results in the same conclusion: these challenges are time barred.
       8 In denying Plaintiffs’ request for a stay pending appeal, we addressed the merits of

Plaintiffs claims regarding pentobarbital under both an equal protection framework and the
Eighth Amendment Glossip framework. Wood, 836 F.3d at 540. Even if we were to accept
Plaintiffs arguments that the proper accrual date for those claims is in 2015, we agree with
the district court that, at bottom, those claims are meritless. Plaintiffs other claims, which
appear tertiary to the challenge to the use of compounded pentobarbital, are plainly
untimely.
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                                  No. 16-20556

DENNIS, Circuit Judge, concurring in part and concurring in the judgment:
      I agree with the majority that, on the showing made, Plaintiffs’
constitutional claims fail on the merits. Further ruling on the statutes of
limitations is therefore unnecessary. I recognize that Walker v. Epps, 550 F.3d
407 (5th Cir. 2008), is binding authority in this Circuit and requires plaintiffs
seeking solely equitable relief to comply with state statutes of limitations.
However, I am concerned that our decision in Walker misinterpreted the
Supreme Court’s decision in Wilson v. Garcia, 471 U.S. 261 (1985), when it
read it to overrule Holmberg v. Armbrecht, 327 U.S. 392 (1946), a case that
Wilson neither discussed nor even mentioned. As a member of this court has
observed, “[t]he question whether a statute of limitations should apply to a
claim such as this one, where the plaintiff seeks purely injunctive relief against
an injury that, although certainly foreseeable, has not yet occurred, is a
difficult one.” Walker v. Epps, 287 F. App’x 371, 379 (5th Cir. 2008) (King, J.,
dissenting).   As she did, I refer the reader to Judge Myron Thompson’s
excellent discussion of this subject, published at Jones v. Allen, 483 F. Supp.
2d 1142 (M.D. Ala. 2007).




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