     Case: 18-70021      Document: 00514529574         Page: 1    Date Filed: 06/26/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit
                                      No. 18-70021                           FILED
                                                                         June 26, 2018
                                                                        Lyle W. Cayce
DANNY PAUL BIBLE,                                                            Clerk

              Plaintiff - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION; JUSTICE GREG
ABBOTT, Governor of Texas; BRYAN COLLIER, EXECUTIVE DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE; TODD HARRIS, Senior
Warden, Polunsky Unit, Livingston, Texas; JAMES JONES, Senior Warden,
Huntsville Unit, Huntsville, Texas; UNNAMED AND ANONYMOUS
EXECUTION TEAM MEMBERS,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:18-CV-1893


Before CLEMENT, OWEN, and COSTA, Circuit Judges.
PER CURIAM:*
       Danny Bible is scheduled to be executed on June 27, 2018. He appeals
the district court’s dismissal of his claims under 42 U.S.C. § 1983 against Texas


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-70021
state officials that allegedly will violate his rights under the First, Eighth, and
Fourteenth Amendments if they attempt to carry out his sentence. He also filed
an emergency motion for a stay of his execution and sought injunctive relief.
We deny his request for a stay and injunctive relief, and we affirm the district
court.
                                        I.
         Over the course of many years, Bible molested children, raped women,
and murdered at least four people. His crimes garnered him the moniker “the
ice pick killer.” In 2001, Bible was charged with capital murder for raping and
killing Inez Deaton, whose body was found in a field—sexually abused and
riddled with stab wounds. Bible was ultimately convicted and sentenced to
death.
         Shortly after a jury handed down the death sentence in 2003, as Bible
was being driven to a prison facility by authorities, his transport vehicle was
involved in a serious accident. The drivers were killed, and Bible sustained
numerous injuries, including a fractured pelvis and a broken back, neck, arm,
and leg. Although Bible was not rendered completely immobile by the accident,
he is mostly confined to a wheelchair. Bible’s accident precipitated “a
constellation of health problems.” For example, in 2012, Bible was diagnosed
with hypertension, diabetes, deep vein thrombosis, and pulmonary embolism.
In 2016, Bible was diagnosed with Parkinson’s disease.
         In the many years between his sentencing and his current appeal, Bible
sought and was denied both direct and habeas relief from his death sentence.
In 2016, as relevant to his current appeal, Bible petitioned this court for a COA
on the issue of whether his sentence violates the Eighth Amendment because
his physical disabilities objectively rendered him no future danger to anyone.
Bible v. Stephens, 640 F. App’x 350, 354 (5th Cir. 2016). We denied relief, id.


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at 358, and the Supreme Court denied certiorari. Bible v. Davis, 137 S. Ct. 328,
328 (2016).
      On March 19, 2018, the state scheduled Bible’s execution for June 27.
Bible waited until June 8 to file a complaint against state officials, seeking
injunctive and declaratory relief under § 1983. Bible’s complaint alleged that
the state’s statutorily authorized execution protocol, lethal injection, violates
his Eighth Amendment rights as applied to him in light of his “galaxy of
medical issues”—including heart failure, coronary artery disease, chronic
venous insufficiency, chronic obstructive pulmonary disease, Parkinson’s
disease, diabetes, and hypertension. According to Bible, these medical issues
have left him with severely compromised peripheral veins, so it will be difficult,
if not impossible, to establish two functioning IVs. This creates a substantial
risk of either a botched or aborted execution and a lingering death. By failing
to take precautions specific to Bible’s predicament, the state officials are acting
with deliberate indifference to his medical needs. Bible further alleged that the
statutory protocol’s prohibition of allowing Bible’s attorneys to be present when
the state’s team inserts the IVs into his veins violates his rights under the First
Amendment. He filed motions seeking a stay of his execution, a temporary
restraining order, a preliminary injunction, and expedited discovery.
      The state opposed Bible’s request to stay the execution, arguing that his
complaint was dilatory, which lessened the credibility of his allegations. It
further argued that Bible’s claims were barred under the statute of limitations.
Finally, the state contended that Bible’s claims were speculative, especially
because medical experts have recently been able to gain access to Bible’s veins
when drawing blood.




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       As a threshold matter, the district court determined that Bible’s “civil-
rights complaint can only proceed if the Court issues a stay of execution.” 1
Noting the equitable and discretionary nature of relief inherent in granting a
stay, the district court concluded that “Bible’s unnecessary delay” in bringing
his action was “an independent basis” for denying relief. In support of this
conclusion, the district court noted that none of Bible’s medical conditions has
“suddenly arisen.” It looked to the well-documented aftermath of Bible’s
accident in 2003 and his 2016 petition for habeas relief, arguing his lack of
danger to society because of his medical issues. The district court found that
nothing “prevented Bible from bringing suit to challenge his execution long
before now.” Instead, Bible waited mere days before his execution to bring his
action. Relying on Supreme Court precedent, the district court dismissed
Bible’s complaint with prejudice.
       Alternatively, the district court concluded that it could not grant a stay
of the execution because Bible’s claims were unlikely to succeed on the merits.
As to Bible’s claim that attempting to apply the state’s protocol of lethal
injection would violate his rights under the Eighth Amendment, the district
court found that Bible was unlikely to show, as he must, that he could
“establish that the [protocol] presents a risk that is sure or very likely to cause
serious illness and needless suffering, and give rise to sufficiently imminent
dangers.” Glossip v. Gross, 135 S. Ct. 2726, 2737 (2015) (internal quotations
omitted). 2 The district court concluded that he was unable to show “any




       1 When deciding whether to stay an execution, a court considers: “(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 proceeding; and (4) where the public
interest lies.” Nken v. Holder, 556 U.S. 418, 426 (2009).
       2 The district court noted that Bible did not dispute that a plaintiff bringing an as-

applied challenge must meet this requirement.
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                                        No. 18-70021
certainty of constitutionally meaningful injury.” In arriving at this conclusion,
the district court noted that the contrary opinions of Bible’s medical expert, Dr.
Sinha, were compromised somewhat because Dr. Sinha did not examine Bible
himself, Dr. Sinha incorrectly stated that Bible is confined to a wheelchair, and
his report “repeatedly employs exaggerated, emotional, and conclusive
language that does not give the impression of detached, impartial analysis.”
      The district court also concluded that, as required by Supreme Court
precedent, Bible was unable to identify an alternative means of execution that
is “feasible, readily implemented, and in fact significantly reduce[s] a
substantial risk of severe pain.” Glossip, 135 S. Ct. at 2737 (internal quotations
omitted). Bible’s complaint alleged that either death by firing squad or
nitrogen hypoxia satisfied this requirement, but the district court rejected this
contention because Texas law and protocol only allow the state to use lethal
injection as a means to execute prisoners.
      Bible contended that, because his claim is as-applied, Supreme Court
precedent requiring plaintiffs bringing facial challenges to make this showing
did not apply here. The district court noted that this question is currently
pending before the Supreme Court. See Bucklew v. Precythe, 2018 WL 1400413
(2018). The district court held, however, that even if plaintiffs bringing as-
applied challenges are not required to make this showing, Bible’s claim fails
on other grounds.
      The district court concluded that Bible’s deliberate indifference claim
was mostly barred by the statute of limitations because he could have
challenged the state’s protocol—which, for example, does not require the
execution chamber to be wheelchair accessible—years before. 3 Relying on its




      3   Texas adopted the lethal injection protocol in 2008.
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                                         No. 18-70021
conclusion that Bible’s claims under the Eighth Amendment were speculative,
it concluded that injunctive relief would be inappropriate.
       As to Bible’s claim under the First Amendment (i.e., the state’s protocol
does not allow him access to his lawyers during at least a portion of the
execution), the district court agreed with the state “that the statute of
limitations [for personal injury actions] bars any claim based on Texas protocol
and those asserting his right to access the Court.” The district court reasoned
that Bible has known about the protocol for at least two years, and so it was
too late for Bible to bring this claim. 4
       Ultimately, the district court dismissed Bible’s complaint with prejudice
on June 21. Bible filed his notice of appeal on the same day, and we ordered
expedited briefing.
                                               II.
       On appeal, Bible brings four issues: (1) the district court erred when it
concluded that Bible unduly delayed bringing his lawsuit and did not warrant
equitable relief; (2) the district court erred in numerous ways when denying
Bible’s motion for a preliminary injunction; (3) the statute of limitations could
not have accrued when the harm had not yet occurred; and (4) the district court
abused its discretion when it sua sponte dismissed Bible’s complaint with
prejudice. We address each issue in turn.
                                                A.
        The district court dismissed the complaint on the “independent basis” of
Bible’s delay in filing his lawsuit until 19 days before his scheduled execution.
Supreme Court precedent requires federal courts to “protect States from


       4 The state argued that the two-year statute of limitations barred all of Bible’s claims,
but the district court disagreed. It reasoned that, at this stage of the litigation, it was unclear
when Bible’s as-applied challenge became ripe because it was at least possible that Bible’s
condition worsened sufficiently to allow him to bring his claim within the last two years. The
state continues to press this argument on appeal.
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                                  No. 18-70021
dilatory or speculative suits.” Hill v. McDonough, 547 U.S. 573, 585 (2006).
(“[A] number of federal courts have invoked their equitable powers to dismiss
suits they saw as speculative or filed too late in the day.”). On appeal, Bible
contends this conclusion was erroneous because he could not have litigated his
as-applied claim sooner. He bases this contention on his claim that his unique
medical conditions have only recently deteriorated to the point where his
execution would be unconstitutional.
      We see no error in the district court’s conclusion that Bible’s suit
constitutes a dilatory tactic and therefore warrants no equitable relief. We
have upheld a similar decision before. See White v. Johnson, 429 F.3d 572, 573–
74 (5th Cir. 2005). Because we also agree with the district court’s conclusion
that Bible’s claims warrant no relief on the merits, however, we would affirm
regardless of whether this conclusion was erroneous.
                                        B.
      Bible raises a host of issues, both procedural and substantive, stemming
from the district court’s denial of his motion for a preliminary injunction. None
is persuasive.
      As a procedural matter, Bible contends the district court should have
held a hearing, should have addressed all of the preliminary injunction factors,
and should have considered whether he was entitled to relief on his lingering
death and access-to-the-courts claims. None of these arguments is availing.
      The district court concluded that, in part because of Bible’s delay, it could
not grant a stay of his execution to hold a hearing, conduct discovery, and
litigate his claims to their end. This court has addressed a similar situation
before:
      By waiting until the execution date was set, Harris left the state
      with a Hobbesian choice: It could either accede to Harris’s
      demands and execute him in the manner he deems most
      acceptable, even if the state’s methods are not violative of the
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                                  No. 18-70021
      Eighth Amendment; or it could defend the validity of its methods
      on the merits, requiring a stay of execution until the matter could
      be resolved at trial. Under Harris’s scheme, and whatever the
      state’s choice would have been, it would have been the timing of
      Harris’s complaint, not its substantive merit, that would have
      driven the result.

Harris v. Johnson, 376 F.3d 414, 417 (5th Cir. 2004). As in Harris, Bible’s delay
would drive the result if he were allowed to litigate his claims fully.
      Despite Bible’s arguments to the contrary, the district court adequately
addressed his access-to-the-courts claim when it determined that this
contention was time-barred. And the district court’s conclusion that Bible could
not show that the lethal injection was sure or very likely to cause needless
suffering was sufficient to dispose of his lingering death claim.
      Turning to his merits-based claims, Bible first contends that the district
court erred by applying an incorrect and heightened legal standard when it
found that he was unable to show “any certainty of constitutionally meaningful
injury.” It is true that this language differs from the Supreme Court’s
command that a plaintiff need only show that his execution is “sure or very
likely to cause . . . needless suffering.” Glossip, 135 S. Ct. at 2737 (emphasis
omitted). Although the district court could have been more precise with its
language, we do not believe that the district court meant to apply or did apply
a heightened standard.
      Even if the district court did err and applied a heightened standard, we
conclude this error was harmless because Bible cannot show under the
Supreme Court’s articulation of the standard that the lethal injection protocol
will cause him harm of an unconstitutional magnitude. The Supreme Court
has stated that to prevail on a claim such as Bible’s, “there must be a
substantial risk of serious harm, an objectively intolerable risk of harm.” Id.
(internal quotations omitted). Here, Bible’s contentions that he will experience

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                                   No. 18-70021
some pain and discomfort when the state’s team inserts the IVs into his veins
are insufficient to meet this high standard. See Raby v. Livingston, 600 F.3d
552, 558 (5th Cir. 2010) (holding a plaintiff must show that he will experience
more than “any minor pain involved in multiple attempts to find an adequate
vein.”); Wood v. Collier, 836 F.3d 534, 538 (5th Cir. 2016) (“[T]he Eighth
Amendment does not require that execution be painless[.]”). Moreover, his
claims that his veins could “blow” are too speculative, especially in light of the
undisputed fact that medical personnel have recently been able to draw blood
from Bible.
      Next, we find no error in the district court’s credibility determinations
regarding Dr. Sinha, who did not have an opportunity to examine Bible. The
district court is not the first to note that Dr. Sinha “gave his opinion in very
absolute terms without the reserve in expression and caution in drawing
conclusions usually associated with scientific opinion.” In re Ohio Execution
Protocol Litigation, 2017 WL 5020138, at *9 n.11 (S.D. Ohio, Nov. 3, 2017).
Bible bears the burden to demonstrate that he is likely to succeed on the
merits. It was not wrong for the district court to consider the credibility of
Bible’s medical expert.
      Bible also contends that the irreparable injury prong weighs heavily in
his favor. It is true that this argument gains force in light of his impending
execution. See O’Bryan v. Estelle, 691 F.2d 706, 708 (5th Cir. 1982). But, as the
district court correctly noted, the Supreme Court has held that a plaintiff is
not entitled to a stay as “a matter of right, even if irreparable injury might
otherwise result.” Nken v. Holder, 556 U.S. 418, 433 (2009) (internal quotations
omitted). We see no reason to disturb the district court’s conclusion that Bible
is not entitled to a stay on this basis.
      We need not address Bible’s argument that the district court erred when
it relied on Whitaker v. Collier, 862 F.3d 490, 501 (5th Cir. 2017) and Zink v.
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Lombardi, 783 F.3d 1089, 1099 (8th Cir. 2015) for the proposition that an as-
applied challenge cannot succeed if the constitutional violation is only “an
isolated mishap.” Even if Bible’s argument were correct, that would not change
the fact that he has failed to show his execution is “sure or very likely to
cause . . . needless suffering.” Glossip, 135 S. Ct. at 2737 (emphasis omitted).
Here the state has not botched any execution since it instituted its protocol.
But even if a mishap were to occur in Bible’s execution, that post-facto incident
alone could not constitute evidence that he was sure or very likely to suffer
needlessly ex ante.
       Similarly, we need not address Bible’s argument that the district court
erred when it found that Bible failed to identify an alternative method of his
own execution. The district court explicitly concluded that its decision did not
hinge upon this factor. 5 Bible failed to show that he is very likely to needlessly
suffer, so we decline to rule on this issue.
                                            C.
       We next consider Bible’s contention that the district court erred when
holding that the state’s affirmative statute of limitations defense barred relief
on his claims when the harm has not yet occurred. We review the district
court’s ruling on a statute of limitations claim de novo. In re Hinsley, 201 F.3d
638, 644 (5th Cir. 2000).
       As a procedural matter, Bible argues that the state’s affirmative defense
was improperly raised in response to a preliminary injunction motion and
decided on the pleadings alone. He supports this contention by citing language
from this court’s decision in Frame v. City of Arlington: “Because the statute of
limitations is an affirmative defense and not a pleading requirement, it is an


       5The Supreme Court has recently granted certiorari on this issue and will likely soon
answer the question of whether a plaintiff making an as-applied challenge to a state’s
execution protocol must demonstrate that an alternative method is available.
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                                   No. 18-70021
issue that must be resolved through discovery and summary judgment or
trial.” 657 F.3d 215, 240 (2011). But the same paragraph of Frame also states,
“[t]o be sure a complaint may be subject to dismissal if its allegations
affirmatively demonstrate that the plaintiff’s claims are barred by the statute
of limitations and fail to raise some basis for tolling.” Id.
      Bible argues that, under our precedent in Whitaker v. Livingston, he
could not have brought a First Amendment claim challenging Texas’s protocol’s
refusal to allow attorneys to witness the insertion of the IVs into his veins
unless his Eighth Amendment claim was ripe. 732 F.3d 465, 467 (5th Cir. 2013)
(“[P]laintiffs’ 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 argue that there might be some remote possibility of some
constitutional violation.”). And because it may not be certain, as the district
court concluded, when his Eighth Amendment claim ripened, Bible contends
that the statute of limitations did not begin to run on his First Amendment
claim until it began to run on his Eighth Amendment claim.
      We also find this argument unavailing. First, as noted by the district
court, this court has found claims similar to Bible’s to be subject to the statute
of limitations. See Whitaker v. Collier, 862 F.3d 490, 495 (5th Cir. 2017).
Second, the case Bible cites, Livingston, concerned the state’s slight delay in
providing information to the prisoners regarding the method of the execution.
That is distinguishable from Bible’s claim that he will not have access to his
attorneys in the execution chamber. And this is the same claim that any
prisoner with a death sentence could bring, even if the prisoner were the very
picture of health. We conclude that the pleadings establish that Bible’s First




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                                       No. 18-70021
Amendment claims 6 are barred by the statute of limitations, and we are not
persuaded by his argument that policy considerations should move us to grant
relief despite this bar. Accordingly, granting a stay of execution is not
warranted on these grounds because Bible cannot show he is likely to succeed.
       Bible recognizes that binding authority from this circuit holds that the
statute of limitations applies in § 1983 actions regardless of the nature of the
relief. See Walker v. Epps, 550 F.3d 407, 408 (5th Cir. 2008). He seeks en banc
relief. But this panel is, of course, without authority to contravene Walker or
demand en banc consideration.
                                             D.
       Finally, Bible urges us to hold that the district court erred when it
dismissed Bible’s complaint with prejudice. We review such determinations
only for abuse of discretion, though that discretion is not unlimited. See Berry
v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992). The district
court’s opinion, despite the time crunch, was thorough and thoughtful. And,
when dismissing the case, it correctly relied upon the Supreme Court’s
exhortation that “[t]he federal courts can and should protect States from
dilatory or speculative suits[.]” See Hill, 547 U.S. at 585. We have affirmed a
dismissal with prejudice under similar circumstances. See White, 429 F.3d at
573–74. And we do so now again.
                                             III.
       For these reasons, we DENY Bible’s motion for stay of execution and
injunctive relief and we AFFIRM the district court.




       6 Because the district court decided that Bible’s Eighth Amendment claims were not
barred by the statute of limitations, we need not address Bible’s contentions that the statute
of limitations does not bar them.
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