    Case: 16-20364    Document: 00514064025    Page: 1   Date Filed: 07/07/2017




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                No. 16-20364                         FILED
                                                                   July 7, 2017
                                                                Lyle W. Cayce
                                                                     Clerk

THOMAS WHITAKER; PERRY WILLIAMS,

                                          Plaintiffs–Appellants,

versus

BRYAN COLLIER; WILLIAM STEPHENS;
JAMES JONES; UNKNOWN EXECUTIONERS,

                                          Defendants–Appellees.




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




Before SMITH, PRADO, and GRAVES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Thomas Whitaker and Perry Williams sued state officials under
42 U.S.C. § 1983 to challenge their method of execution under the First, Sixth,
Eighth, and Fourteenth Amendments. Because the plaintiffs have not stated
a claim on which relief can be granted, we affirm the dismissal of their
complaint.
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                                       No. 16-20364

                                              I.
      Whitaker and Williams were convicted of capital murder and sentenced
to death. Whitaker’s conviction and sentence were affirmed in 2009, 1 Wil-
liams’s in 2008. 2 They filed their original complaint in October 2013. 3 The
district court dismissed because their date of execution had not been set, so the
dispute was not ripe, but we reversed because “the current protocol is presum-
ably ‘the means that Texas will select for their execution.’” Whitaker v. Living-
ston, 597 F. App’x 771, 773, 774 (5th Cir. 2015) (per curiam).

      On remand, the plaintiffs filed a second amended complaint (the subject
of this appeal) with four counts. Count One alleges that the lack of a notifica-
tion requirement, in Texas’s execution protocol, for changes to the protocol
violates the Eighth Amendment and the Fourteenth Amendment’s Due Pro-
cess Clause. Count Two alleges that the lack of a requirement that prisoners
have access to counsel “during the events leading up to and during the course
of their execution” violates the First, Sixth, and Eighth Amendments. Count
Three alleges that the failure to conduct additional testing of the compounded
pentobarbital (the execution drug), use of the compounded pentobarbital after
its “Beyond Use Date” (“BUD”), and the absence of other appropriate safe-
guards violate the Eighth and Fourteenth Amendments. Count Four alleges
that the failure to release, or the concealment of, information about the proto-
col violates the Eighth and Fourteenth Amendments. The defendants, referred
to collectively as the Texas Department of Criminal Justice (“TDCJ”), moved
to dismiss under Federal Rule of Civil Procedure 12(b)(6).



      1   Whitaker v. State, 286 S.W.3d 355, 357 (Tex. Crim. App. 2009).
      2   Williams v. State, 273 S.W.3d 200, 204 (Tex. Crim. App. 2008).
      3Michael Yowell was also a complainant, but he was executed in October 2013. See
Whitaker v. Livingston, 732 F.3d 465, 469 (5th Cir. 2013).
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                                     No. 16-20364

      While the motion to dismiss was pending, the district court permitted
limited discovery. During that time, Texas stipulated that it would conduct
additional testing of the compounded pentobarbital before executing Whitaker
and Williams. 4 The court eventually granted TDCJ’s motion to dismiss all
claims. It held that Counts One, Two, and the part of Count Three challenging
the lack of additional safeguards were barred by the statute of limitations. It
also ruled that Whitaker and Williams had failed to state a claim on the re-
maining issues. On appeal now, 5 we affirm the dismissal.

                                           II.
      The statute of limitations for Section 1983 method-of-execution claims is
the same as the general personal-injury limitations for the state of conviction.
Walker v. Epps, 550 F.3d 407, 411–12 (5th Cir. 2008). In Texas, a personal-
injury action must be brought “not later than two years after the day the cause
of action accrues.” TEX. CIV. PRAC. & REM. CODE ANN. § 16.003 (West 2016). A
method-of-execution cause of action accrues “on the date direct review of a
plaintiff’s conviction and sentence is complete” or “in the event a state changes
its execution protocol after a death-row inmate’s conviction has become final
. . . on the date that protocol change becomes effective.” Walker, 440 F.3d
at 414.

      The plaintiffs filed their original complaint more than two years after
their convictions and sentences became final, so to benefit from a more recent
accrual date, they must show a change in the protocol. They maintain that
TDCJ’s September 2013 change from manufactured to compounded


      4 At oral argument, TDCJ affirmed its commitment to retest the compounded
pentobarbital.
      5  Whitaker’s scheduled execution was called off because TDCJ was unable to complete
the stipulated-to additional testing in time.
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                                        No. 16-20364

pentobarbital “constituted a substantial change to the TDCJ protocol” that
“should be the date that limitations for [plaintiffs’] section 1983 claims
accrued.” Alternatively, they contend that limitations has not begun to run
because they are subject to a continuing injury resulting from TDCJ’s ability
to change its protocol at any time. We must decide whether the change to
compounded pentobarbital can serve as the substitute accrual date and, if so,
for which specific parts of the protocol. 6

       Walker did not decide what kind of change would be sufficient to reset
the accrual date or how much of the protocol would be challengeable. Id.
at 415. So far, we have only assumed arguendo that the most recent change―in
2013―is the accrual date where the claims were time-barred regardless of the
date chosen. See Wood v. Collier, No. 16-20556, ___ F. App’x ___, 2017 WL
892490, at *1 (5th Cir. Mar. 6, 2017) (per curiam). We did not decide whether
that September 2013 date―which we termed “the most generous accrual point
possible”―or an earlier date (given that “[s]ome of the aspects of Texas’s death
penalty protocol . . . have not changed since 2008”) was the appropriate accrual
date. Id. at *1 n.7. 7

       The Eleventh Circuit requires that, for the accrual date to reset, a change
to the protocol must be substantial. Gissendaner v. Comm’r, Ga. Dep’t of Corr.,
779 F.3d 1275, 1280 (11th Cir.) (per curiam) (quoting another source).
Moreover, “a claim that accrues by virtue of a substantial change in a state’s


       6 The plaintiffs’ argument that the law of the case prevents the application of a limita-
tions bar was waived because they did not raise it in the district court. See Muoneke v. Com-
pagnie Nationale Air France, 330 F. App’x 457, 461 n.11 (5th Cir. 2009) (per curiam). Even
if it had not been waived, the district court was bound to apply the holding in Whitaker,
597 F. App’x at 774, that the plaintiffs could bring their Section 1983 suit against the existing
execution protocol.
       7To the extent that Wood, being unpublished, is not precedent, we now adopt its rea-
soning and conclusions as published precedent.
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                                         No. 16-20364

execution protocol is limited to the particular part of the protocol that
changed.” Id. at 1280–81. “In other words, a substantial change to one aspect
of a state’s execution protocol does not allow a prisoner whose complaint would
otherwise be time-barred to make a ‘wholesale challenge’ to the state’s proto-
col.” Id. at 1281.

         We agree with the Eleventh Circuit: To reset the accrual date, a change
to an execution protocol must be substantial, and any new accrual date is
applicable only to the portion of the protocol that changed. See id. at 1280–81.
In permitting Section 1983 method-of-execution claims, the Supreme Court
acknowledged that such claims, where they entail a stay of execution, can
unreasonably delay imposition of the sentence. Hill v. McDonough, 547 U.S.
573, 583–84 (2006). “Repetitive or piecemeal litigation presumably would raise
similar concerns.” Id. at 585. The most straightforward way to avoid that is
to place reasonable limits on the type of change that resets the accrual date
instead of allowing a proliferation of claims that could indefinitely delay the
sentence, as well as creating a perverse incentive for states to refuse to make
the very changes the plaintiffs are seeking.

         The definition of “substantial” requires further elaboration. The plain-
tiffs are correct that setting the level of abstraction at lethal injection, as the
district court seemed to suggest, 8 is too strict. We cannot say that the use of
any injectable substance that causes death is always an insignificant change,
because there could be substances that do create a “substantial risk of serious
harm.” Glossip v. Gross, 135 S. Ct. 2726, 2737 (2015) (quoting Baze v. Rees,
553 U.S. 35, 50 (2008)). But a limit has to be drawn to avoid “[r]epetitive or
piecemeal litigation.” Hill, 547 U.S. at 585.


         8   Whitaker v. Livingston, No. H-13-2901, 2016 WL 3199532, at *5 (S.D. Tex. June 6,
2016).
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       Again, we follow the Eleventh Circuit. The plaintiff in Gissendaner
challenged the constitutionality of Georgia’s switch from manufactured to com-
pounded pentobarbital. The court held that was “not a substantial change
because the switch between two forms of the same drug does not significantly
alter the method of execution.” Id. at 1282. We agree.

           Applying these rules, the district court was correct to dismiss Counts
One, Two, and part of Three as time-barred. Whitaker’s and Williams’s con-
victions and sentences were affirmed by the Texas Court of Criminal Appeals
in 2009 and 2008, respectively. 9 They sued in 2013, well after the expiration
of the two-year limitations period for unchanged parts of the protocol. The lack
of a notice requirement, the lack of access to counsel during the execution, and
the list of additional safeguards in Count Three were all claims that existed as
of the May 2008 execution protocol and have not been altered since. 10 These
claims are time-barred.

       The remaining claims in Count Three, regarding retesting and the BUD
of the compounded pentobarbital, would be time-barred under the new rule,
because the 2013 change to compounded pentobarbital is not substantial. But,


       9   Whitaker, 286 S.W.3d at 357; Williams, 273 S.W.3d at 204.
       10  Wood, ___ F. App’x ___, 2017 WL 892490, at *1 n.7. The plaintiffs challenge the
basis for evaluating the timing of changes to the protocol by objecting to this court’s taking
judicial notice of Texas’s 2008 execution protocol. They correctly note that the court cannot
take judicial notice of the factual findings of another court. Taylor v. Charter Med. Corp.,
162 F.3d 827, 830 (5th Cir. 1998). But we can take judicial notice of a fact that is “not subject
to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction
of the trial court or (2) capable of accurate and ready determination by resort to sources whose
accuracy cannot be questioned.” Id. at 829 (internal quotation marks and citation omitted).
       The 2008 execution protocol is such a document. Resolving this issue on remand
would merely require TDCJ to come forward with the 2008 protocol, easily satisfying the
second part of the Taylor test. The state’s reliance on court filings in other cases for the
contents of its own records is not our preferred approach. But it also was not an abuse of
discretion for the district court to take judicial notice of the protocol under these
circumstances.
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                                       No. 16-20364

in addition to the 2013 change, TDCJ also changed from a three-drug to a one-
drug protocol between 2008 and 2012. Because no party raises whether that
change is substantial, we do not decide that question. The plaintiffs also do
not specifically identify the date of this change in their complaint, although
their brief says it was in 2012. The district court identifies this date as well
but relies on another case for that proposition. 11 Given the lack of briefing and
the importance of this question, we assume, arguendo only, that these claims
are not time-barred. 12

         Alternatively, the plaintiffs maintain that limitations have not run
because the plaintiffs are subject to a continuing injury on account of the lack
of a notice provision. This theory is all but foreclosed by Walker, 550 F.3d
at 417, which addressed a similar claim regarding Mississippi’s execution pro-
tocol.        That state defines a continuing tort as “wrongful conduct that is
repeated until desisted.” Id. (quoting Stevens v. Lake, 615 So. 2d 1177, 1178
(Miss. 1993)). Based upon that definition, we held that the protocol was not a
continuing tort because “[t]he challenged protocol will affect each plaintiff but
once.” Id. In Texas, a continuing tort occurs where “the wrongful conduct con-
tinues to effect additional injury to the plaintiff until that conduct stops.” 13
Given the similarities in definitions, TDCJ’s execution protocol also is not a
continuing tort under Walker.


          Whitaker, 2016 WL 3199532, at *5 (quoting Trottie v. Livingston, 766 F.3d 450, 453
         11

(5th Cir. 2014)).
         12Count Four alleges an ongoing concealment of information independent of the pro-
tocol itself, but this distinction is not discussed in the briefing either. We also assume argu-
endo that this claim is not time-barred.
         Gen. Universal Sys., Inc. v. HAL, Inc., 500 F.3d 444, 451 (5th Cir. 2007) (quoting
         13

Upjohn Co. v. Freeman, 885 S.W.2d 538, 542 (Tex. App.―Dallas 1994, writ denied)). “Al-
though often used by Texas intermediate courts, ‘[t]he Texas Supreme Court has not “en-
dorsed nor addressed” the concept of the continuing tort doctrine.’” Id. (quoting Walston v.
Stewart, 187 S.W.3d 126, 129 (Tex. App.—Waco 2006, pet. denied)).
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                                             III.
       Even if the plaintiffs sued timely, they have failed to state a claim. 14 A
dismissal for failure to state a claim under Rule 12(b)(6) is reviewed “de novo,
accepting all well-pleaded facts as true and viewing those facts in the light
most favorable to the plaintiff.” Bowlby v. City of Aberdeen, 681 F.3d 215, 219
(5th Cir. 2012) (internal quotation marks and citation omitted). A complaint
must be “plausible on its face” 15 based on “factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” 16 “Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” 17

                                              A.
       The plaintiffs rely on several constitutional amendments, but the core of
their suit is a challenge to the method of execution under the Eighth Amend-
ment. In Glossip, 135 S. Ct. at 2737, a majority of the Court, in reviewing a
preliminary injunction, adopted two elements for a method-of-execution claim.
The method of execution must first “present[] a risk that is sure or very likely
to cause serious illness and needless suffering, and give rise to sufficiently
imminent dangers.” Id. (quoting Baze, 553 U.S. at 50). “[T]here must be a
substantial risk of serious harm, an objectively intolerable risk of harm that


       14 Given the recurring nature of execution-protocol claims, it is important to rule both
on the limitations question and on the validity of the substantive claim, so we make this as
an alternative holding. “This circuit follows the rule that alternative holdings are binding
precedent and not obiter dicta.” United States v. Bueno, 585 F.3d 847, 850 n.3 (5th Cir. 2009)
(quoting Pruitt v. Levi Strauss & Co., 932 F.2d 458, 464 (5th Cir. 1991)); accord United States
v. Peters, 364 F. App’x 897, 898 (5th Cir. 2010) (per curiam).
       15Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
       16   Id.
       17Id.; see generally 2 MOORE’S FEDERAL PRACTICE § 12.34[1][a], at 12-77
through 12-83 (3d ed. 2017).
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prevents prison officials from pleading that they were subjectively blameless
for purposes of the Eighth Amendment.” Id. (quoting Baze, 553 U.S. at 50).
Second, the plaintiff “must identify an alternative that is ‘feasible, readily im-
plemented, and in fact significantly reduce[s] a substantial risk of severe
pain.’” Id. (quoting Baze, 553 U.S. at 52). We use those same elements when
reviewing whether the plaintiffs have sufficiently pleaded a method-of-
execution claim to survive a Rule 12(b)(6) motion to dismiss. 18 The plaintiffs
have not done that.

                                              B.
       Count Three addresses the method-of-execution claims regarding the
compounded pentobarbital itself. Under the first element of Glossip, the plain-
tiffs allege that the fact that there was only a single test of the execution drugs
conducted before delivery to TDCJ means that there is a substantial risk of
serious harm, because “this lack of information and testing makes it impossible
to determine to what extent the compounded pentobarbital has degraded and
what the risks to the inmate might be.” The plaintiffs further aver that the
BUD that the compounding pharmacy assigned to the pentobarbital “is not
supported by the relevant provisions of the [United States Pharmacopeia], and
in fact, extends far beyond the recommended BUD.” The plaintiffs maintain
that this “raises grave concerns about potency, sterility, and stability of the
pentobarbital, and thus of the risk of severe pain to the inmate.”

       With respect to the second element of Glossip, the plaintiffs contend that
TDCJ could alternatively use “a single dose of an FDA approved barbiturate,
applied with the appropriate safeguards and transparency that apply to both


       18The en banc Sixth Circuit has just now reiterated these tests in rejecting a challenge
to Ohio’s protocol. See Fears v. Morgan (In re Ohio Execution Protocol), No. 17-3076, 2017
U.S. App. LEXIS 11491, at *8–9 (6th Cir. June 28, 2017) (en banc).
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the execution process and the manner in which the drugs are selected, pur-
chased, stored, and tested.” 19 The plaintiffs also theorize that the protocol does
not contain various other safeguards that would allow TDCJ to “determine
whether an inmate is subjected to severe pain at the time of his execution.” 20

                                              1.
       We addressed similar claims to Whitaker’s and Williams’s in Wood, in
which the plaintiffs sought stays of executions as part of their Section 1983
method-of-execution claims, to-wit:
    (1) Texas’s use of compounded pentobarbital absent re-testing shortly
    before execution violates the Eighth and Fourteenth Amendments by
    creating a substantial risk of severe pain; (2) Texas's refusal to disclose
    elements of its execution protocol violated Appellants' First, Eighth,
    and Fourteenth Amendment rights to be free from cruel and unusual
    punishment, due process, notice, an opportunity to be heard, and access
    to the courts; (3) voluntary re-testing of the pentobarbital that will be
    used to execute plaintiffs in another suit created a constitutional right
    to such re-testing for all prisoners; and (4) the lack of a requirement
    that Texas notify the Appellants of any changes to the drugs or to the
    lethal injection protocol that will be used to carry out their sentences
    impairs protection of their right to be free from cruel and unusual pun-
    ishment and to due process under the Eighth and Fourteenth
    amendments.
Wood v. Collier, 836 F.3d 534, 537 (5th Cir. 2016). In seeking a stay, the Wood
plaintiffs relied solely on their retesting/equal-protection claim. We denied the
stay because the retesting itself was not required by the Eighth Amendment,




       19In their complaint, the plaintiffs stated that TDCJ has in its “possession three other
drugs purchased for possible use in executions: propofol, midazolam, and hydromorphone,”
but at oral argument they inexplicably claimed they did not so designate.
       20Count Three alleges that these deficiencies also violate the Fourteenth Amendment,
but that issue is not briefed by the plaintiffs so it is waived. See United States v. Stalnaker,
571 F.3d 428, 439–40 (5th Cir. 2009).
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irrespective of the equality of its application. 21            “[R]elying on conjecture
regarding the drugs’ beyond-use dates and compounding, the prisoners urge[d]
only that ‘[t]esting the compounded pentobarbital shortly before its use en-
sures the prisoner will not suffer severe pain . . . .’” Id. at 540. “But this asser-
tion fail[ed] to reach the Eighth Amendment bar on unnecessarily severe pain
that is sure, very likely, and imminent.” Id.

       The Eighth and Eleventh Circuits have addressed method-of-execution
claims regarding compounded pentobarbital at the motion to dismiss stage and
found the complaints insufficient. 22 In Zink, 783 F.3d at 1100, the plaintiffs
alleged that “the use of compounding pharmacies ‘often results in drugs which
are contaminated, sub-potent or super-potent, or which do not have the
strength, quality or purity’ of FDA-regulated drugs.” The plaintiffs identified
four specific risks that created: (1) sub- or super-potency that either left the
prisoner alive but seriously injured or suffocated him to death before he was
rendered unconscious; (2) allergic reactions from contamination; (3) pulmonary
embolisms from foreign particles; and (4) burning from the drug’s improper
pH. Id. at 1099–1100. The Eighth Circuit held those allegations were too spec-
ulative to survive a motion to dismiss, because they were “descriptions of hypo-
thetical situations in which a potential flaw in the production of the pento-
barbital or in the lethal-injection protocol could cause pain.” Id. at 1101.

       Whitaker and Williams pleaded a related claim that the single test of the
execution drugs conducted before delivery to TDCJ presents a substantial risk




       21 Wood, 836 F.3d at 540 (“However one kneads the protean language of equal protec-
tion jurisprudence, the inescapable reality is that these prisoners have not demonstrated that
a failure to retest brings the risk of unnecessary pain forbidden by the Eighth Amendment.”).
       22See Zink v. Lombardi, 783 F.3d 1089 (8th Cir. 2015) (en banc) (per curiam); Gis-
sendaner, 779 F.3d at 1278–79, 1283.
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                                       No. 16-20364

of serious harm because “this lack of information and testing makes it impos-
sible to determine to what extent the compounded pentobarbital has degraded
and what the risks to the inmate might be.” If pleading hypothetical risks was
insufficient to state a claim in Zink, id. at 1101, and Gissendaner, 779 F.3d
at 1283, and we do not see a reason to split with our sister circuits’ holdings,
then the claim that additional testing is required to identify an otherwise
unknown risk is surely insufficient. By the first element’s own terms, the
plaintiffs must make factual allegations as to the substantial risk of the severe
pain instead of pleading ignorance. Glossip, 135 S. Ct. at 2737.

       Whitaker’s and Williams’s claim that using compounded pentobarbital
after its BUD risks severe pain also does not include sufficient factual asser-
tions to survive a motion to dismiss. They claim that the BUD assigned to the
drug by TDCJ “is not supported by the relevant provisions of the [United States
Pharmacopeia], and in fact, extends far beyond the recommended BUD.” This,
allegedly, “raises grave concerns about potency, sterility, and stability of the
pentobarbital, and thus of the risk of severe pain to the inmate.” Again, this
is the type of “speculation that the current protocol carries a substantial risk
of severe pain” that is insufficient even at the motion-to-dismiss stage. 23

                                              2.
       The plaintiffs have failed to plead an alternative method of execution as
required by Glossip, 135 S. Ct. at 2737.              The “‘naked assertion’ that other
methods would be constitutional, devoid of further factual enhancement, fails
to state a claim under the Eighth Amendment.” Zink, 783 F.3d at 1103. The
complaint includes no factual contentions that these alternatives “significantly


       23Zink, 783 F.3d at 1101. The Zink plaintiffs alleged, inter alia, that the compounded
pentobarbital was “use[d] beyond its expiration date . . . exacerbat[ing] the potential for [the
aforementioned] harms.” Id. at 1100.
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                                  No. 16-20364

reduce a substantial risk of severe pain.” Glossip, 135 S. Ct. at 2737 (quoting
Baze, 553 U.S. at 52). The plaintiffs merely advance the notion that there are
FDA-approved barbiturates that could be administered with appropriate
safeguards. The allegation that there are available drugs that could be han-
dled properly is little more than a concession that there are constitutional ways
for TDCJ to carry out executions.

                                        3.
      The plaintiffs assert in Count Three that TDCJ has “insufficient safe-
guards in the current execution protocol to protect them from the risk of cruel
and unusual punishment at the time of their execution.” This count also fails
to state a claim.

      Once again, there are no factual assertions that would allow the court
reasonably to infer that the lack of these safeguards creates a “substantial risk
of serious harm.” Id. (quoting Baze, 553 U.S. at 50). The pleading merely lists
the alleged deficiencies and states that they are necessary to avoid “the risk of
cruel and unusual punishment” because without them “TDCJ cannot deter-
mine whether an inmate is subjected to severe pain at the time of his execu-
tion.” The allegation that the risk of pain is indeterminate fails the require-
ments of a method-of-execution claim on its face. Even if the pleading had
added the qualifier “substantial” to the risk alleged, this would still be a legal
conclusion that Iqbal, 556 U.S. at 678–79, directs us to disregard.

                                       C.
      Counts One and Four deal with the plaintiffs’ alleged inability to access
information about their method of execution. Count One addresses the lack of
a notification requirement in TDCJ’s execution protocol itself, and Count Four
speaks to TDCJ’s failure to disclose, or concealment of, information about the

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                                     No. 16-20364

method of execution. The plaintiffs aver that these are violations of the Eighth
and Fourteenth Amendments.

      The failure to disclose information or include a notice requirement in the
protocol does not offend the Eighth Amendment. “Perhaps the state’s secrecy
masks ‘a substantial risk of serious harm,’ but it does not create one.” 24 “[W]e
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 Amend-
ment, that goes beyond what that Amendment itself protects.” Whitaker,
732 F.3d at 467.

      We rejected the plaintiffs’ Fourteenth Amendment due process claim in
Sepulvado, 729 F.3d at 419. Disclosing information about the execution proto-
col “so [they] can challenge its conformity with the Eighth Amendment—does
not substitute for the identification of a cognizable liberty interest.” Id. The
lack of a cognizable liberty interest is fatal to the due process claim. Id. at 420.

      The plaintiffs contend that we do not have to follow Sepulvado because
it “was decided before many of the applicable developments in Texas, in this
case, in the lethal injection landscape nationally, and before the Supreme
Court’s decision in Glossip.” But these changes are insufficient to justify de-
parture from Sepulvado. See Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d
375, 378 (5th Cir. 2008). Of those reasons, only Glossip would be an exception
to the rule of orderliness, and it did not address due process questions regard-
ing execution protocols. See Glossip, 135 S. Ct. at 2731. Without a cognizable
liberty interest, the due process claims cannot survive a motion to dismiss.

      Finally, the plaintiffs allege, in Counts One and Four, that this lack of



      24 Sepulvado v. Jindal, 729 F.3d 413, 420 (5th Cir. 2013) (footnote omitted) (quoting
Baze, 553 U.S. at 52).
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                                     No. 16-20364

information interferes with their First Amendment right of access to the
courts. 25 This claim fails on the pleadings. “One is not entitled to access to the
courts merely to argue that there might be some remote possibility of some
constitutional violation.” Whitaker, 732 F.3d at 467. “Plaintiffs must plead
sufficient facts to state a cognizable legal claim.” Id. Because the plaintiffs
have not met the pleadings standards for any of their claims, their access-to-
the-courts theory necessarily fails as well. 26

                                            D.
       Count Two alleges the right to counsel “during the events leading up to
and during the execution” under the First, Sixth, and Eighth Amendments. 27
These claims are without merit. The Sixth Amendment right to counsel only
“extends to the first appeal of right, and no further.” Pennsylvania v. Finley,
481 U.S. 551, 555 (1987). The plaintiffs also have not satisfied the pleading
requirements of a method-of-execution claim because they have not identified
a “substantial risk of serious harm” from the lack of access. See Glossip,
135 S. Ct. at 2737 (quotation marks and citations omitted). The plaintiffs point
to the possibility of “botched executions” that access to counsel could address,
but that is just the kind of “isolated mishap” that is not cognizable via a
method-of-execution claim. See Baze, 553 U.S. at 50. Finally, because the



       25 “[T]he right of access to the courts is an aspect of the First Amendment right to
petition the Government for redress of grievances.” Bill Johnson’s Rests., Inc. v. NLRB,
461 U.S. 731, 741 (1983).
       26  The Eighth Circuit has more broadly held that these claims do not extend to the
absence-of-notice provisions in execution protocols. Zink, 783 F.3d at 1108 (“The prisoners
do not assert that they are physically unable to file an Eighth Amendment claim, only that
they are unable to obtain the information needed to discover a potential Eighth Amendment
violation.” (quoting Williams v. Hobbs, 658 F.3d 842, 852 (8th Cir. 2011))).
       27Texas’s execution protocol does permit a prisoner to meet with his attorney on the
day of the execution with the permission of the warden.
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                                    No. 16-20364

plaintiffs have not succeeded in pleading an underlying claim, their access-to-
the-courts assertion fails as well. Whitaker, 732 F.3d at 467.

                                             IV.
      The plaintiffs raise two procedural objections to the dismissal of their
complaint. First, they claim that the district court incorrectly applied the
summary-judgment standard to a motion to dismiss. They assert both that the
court considered evidence outside the pleadings and that it applied a height-
ened pleading standard to its review of the complaint.

      The district court did not apply a heightened pleading standard. Al-
though it used language such as “established” and “demonstrate,” Whitaker,
2016 WL 3199532, at *3–4, this is a function of the strict substantive require-
ments of a method-of-execution claim. As we have repeatedly mentioned, there
must be sufficient facts in the complaint for the court reasonably to infer a
“substantial risk of serious harm.” See Glossip, 135 S. Ct. at 2737.

      The district court did consider evidence outside the pleadings. It cited to
stipulations Texas made to do additional testing on the compounded pentobar-
bital before the plaintiffs’ executions and their concession that that would be
satisfactory. See Whitaker, 2016 WL 3199532, at *3. But we have already held
that such an error is harmless. See Wood, 836 F.3d at 542.          “Accepting the
facts as pled, all claims still fail.” Id.

      The plaintiffs also assert that the court abused its discretion in handling
their discovery requests by establishing a confusing process, “predetermin[ing]
what issues it thought were relevant” and being overly protective of informa-
tion it was concerned would leak to the public. Discovery is “inapplicable”




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                                       No. 16-20364

where “[t]he district court ruled on [TDCJ’s] motion to dismiss.” 28 Any discov-
ery error was harmless, because the plaintiffs were not entitled to discovery
without a properly pleaded complaint. See Twombly, 550 U.S. at 559.

       The judgment of dismissal is AFFIRMED.




       28Hollis v. Lynch, 827 F.3d 436, 451 (5th Cir. 2016); see also Crenshaw v. United States
ex rel. NASA, No. 97-40487, 137 F.3d 1352 (table), 1998 WL 92559, at *1 (5th Cir. Feb. 12,
1998) (per curiam) (unpublished).
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                                  No. 16-20364

JAMES E. GRAVES, JR., Circuit Judge, dissenting:
      Because I would vacate the district court’s order of dismissal for failure
to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure and
remand, I respectfully dissent.
      In September of 2013, the Texas Department of Criminal Justice’s
(TDCJ) supply of Nembutal, the brand name of pentobarbital, prescribed by
the current execution protocol expired. There was information that TDCJ had
obtained a supply of propofol, midazolam and hydromorphone, but there was a
lack of information about which drugs TDCJ planned to use in upcoming
executions.
      As a result, death-row inmates Thomas Whitaker, Perry Williams and
Michael Yowell filed a complaint under 42 U.S.C. § 1983 on October 1, 2013,
asserting violations of their rights to due process, access to courts, and right to
be free from cruel and unusual punishment against various representatives of
the TDCJ. Based upon new information that Yowell’s imminent execution
would be carried out with newly-purchased compounded pentobarbital, the
plaintiffs sought a temporary injunction. The district court denied relief and
this court affirmed. See Whitaker v. Livingston (Whitaker I), 732 F.3d 465 (5th
Cir. 2013). Yowell was executed and dismissed from the case.
      Whitaker and Williams (hereinafter collectively referred to as
“Whitaker”) then amended their complaint. The State filed a motion to dismiss
pursuant to Fed. R. Civ. P. 12(b)(1), which the district court granted on the
basis of lack of subject matter jurisdiction. Whitaker appealed. This court
vacated the order of dismissal, concluding that “the district court clearly erred”
in dismissing the claims on the basis that they were not yet ripe, and remanded
“so that Whitaker is able to fully develop the claims based on the existing



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                                         No. 16-20364

protocol for an appropriate trial on the merits.”                   Whitaker v. Livingston
(Whitaker II), 597 F. App’x 771, 774 (5th Cir. 2015).
       The matter has proceeded since then with various motions, orders, an
order setting execution of Williams that was later withdrawn, and limited
discovery. Of particular relevance, on September 11, 2015, Whitaker filed a
second amended complaint.             Three days later, the state filed a motion to
dismiss for failure to state a claim under Rule 12(b)(6). On June 6, 2016, the
district court granted the dismissal without allowing full development of the
claims, any discovery on the second amended complaint, and/or an appropriate
trial on the merits. 1
       Whitaker’s second amended complaint claimed that:
             (1) The absence of any requirement that Defendants notify
       Plaintiffs of any changes in the lethal substance to be used to carry
       out executions, or changes to their legal injection protocol, deprives
       Plaintiffs of their ability to protect their right to not be subject to

       1  The majority states that the district court permitted limited discovery while the
motion to dismiss was pending. However, the record reflects that the district court did not
allow any discovery on the second amended complaint or after its filing while the motion to
dismiss was pending.
        Prior to the filing of the second amended complaint and the motion to dismiss, the
district court had permitted only limited discovery. For example, when Williams’ execution
date was set, the district court called the case to trial with two weeks’ notice and then put
restrictions on the examination of witnesses.
        Another example is when the district court ordered Texas to provide Whitaker with
the purchase and compounding date for the compounded pentobarbital it has used in
executions and any autopsy reports conducted of the execution, and to provide the court with
the master formulation record and the certificate of analysis for in camera inspection, all by
September 11, 2015. Texas filed an advisory on September 11, 2015, saying that it provided
the purchase and creation dates, but could not provide any of the other items ordered.
        In its order of dismissal, the district court also acknowledged discovery it had denied,
saying: “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.” Then, “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.”
But yet the district court then faulted the plaintiffs for not being able to articulate a challenge
to the testing – when the court had denied their discovery on that very issue.


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                                 No. 16-20364

      cruel and unusual punishment, and violates their right to due
      process, notice, an opportunity to be heard, and access to the courts
      in violation of the Eighth and Fourteenth Amendments to the
      United States Constitution;
             (2) The absence of provisions that provide Plaintiffs access
      to counsel during the events leading up to and during the course
      of their execution deprives plaintiffs of their right of access to
      counsel and the courts in violation of their rights under the First,
      Sixth and Eighth Amendments and pursuant to 18 U.S.C. §3599;
             (3) Plaintiffs’ right to not be subject to cruel and unusual
      punishment, and their right to due process under the Eighth and
      Fourteenth Amendments are violated by: (1) Defendants’ failure to
      conduct sufficient testing of the compounded pentobarbital prior to
      injection; (2) Defendants’ use of a “use by” date for the compounded
      pentobarbital that extends far beyond accepted scientific
      guidelines; (3) Defendants’ carrying out of executions under the
      current Execution Protocol, which lacks appropriate safeguards to
      limit the risk that Plaintiffs will suffer severe pain at the time of
      their executions;
             (4) Plaintiffs’ right to not be subject to cruel and unusual
      punishment, and their right to due process under the Eighth and
      Fourteenth Amendments, notice, opportunity to be heard, and
      access to courts are violated by: (1) Defendants’ failure to disclose
      information regarding the lethal substance or substances TDCJ
      intends to use to carry out Texas executions; (2) Defendants’
      concealment of information about how the executions will be
      carried out.

      The district court dismissed the claims on the basis that (a) the first,
second, and part of the third claims are barred by limitations; (b) Whitaker did
not adequately plead the complaint; and (c) all four claims are unsubstantiated
by reliable, articulable, and demonstrable facts that establish claims upon
which they seek relief. Whitaker subsequently filed this appeal.
I. Whether the district court applied a standard which was clearly
erroneous when assessing the Rule 12(b)(6) motion to dismiss.

      As the majority concedes, the district court improperly considered
evidence outside the pleadings without converting the motion to dismiss into a
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                                 No. 16-20364

motion for summary judgment. Thus, the district court applied a standard
which was clearly erroneous and there is no authority for the application of a
harmless error standard. But, even if there was such authority, the error was
not harmless because Whitaker’s complaint was not deficient, as discussed
herein.
      This court reviews de novo the district court’s grant of a motion for
dismissal under 12(b)(6), applying the same standard used by the district
court. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). To survive
a motion to dismiss for failure to state a claim under Rule 12(b)(6), “the
plaintiff must plead enough facts to state a claim to relief that is plausible on
its face.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)
(internal marks omitted) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). In considering a Rule 12(b)(6) motion to dismiss, the court is limited
to considering the contents of the pleadings. Brand Coupon Network, L.L.C. v.
Catalina Marketing Corp., 748 F.3d 631, 635 (5th Cir. 2014). Considering
evidence outside the pleadings without converting the motion to dismiss into a
motion for summary judgment is error. Id. See also Fed. R. Civ. P. 12(d) (If
matters outside the pleadings are considered, the motion must be treated as
one for summary judgment and “[a]ll parties must be given a reasonable
opportunity to present all the material that is pertinent to the motion.”) Thus,
the district court erred.
      The majority cites Wood v. Collier (Wood I), 836 F.3d 534 (5th Cir. 2016)
for the conclusion that this error is harmless. However, there is no authority
for the application of a harmless error standard to a Rule 12(b)(6) dismissal.
More importantly, Wood I cites no such authority. Further, it is troubling that
this court is relying on a subsequent case decided by the same district court
which denied prisoners relief that the State agreed to provide here. In Wood

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                                       No. 16-20364

I, the prisoners were seeking re-testing of the compounded pentobarbital prior
to execution – something the State stipulated to here prior to the filing of
Whitaker’s second amended complaint and part of the evidence improperly
considered by the same district court here in deciding the motion to dismiss.
Also, the Wood I plaintiffs were seeking a stay and did not challenge the time
barred holding.
      Accordingly, the district court clearly erred and this issue alone is
sufficient to warrant reversal.
II. Whether appellants’ claims are time-barred; and

III. Whether the district court abused its discretion by violating this
court’s mandate and by not allowing meaningful discovery. 2

      The claims are not time-barred because the cause of action did not accrue
until the state began using compounded pentobarbital under the revised
protocol in 2013. Additionally, Whitaker is arguably subject to a continuing
injury based on TDCJ’s ability to change its protocol at any given time. See
Tex. Code Crim. Proc. Art. 43.14.
      We review de novo a district court’s dismissal of a § 1983 action as time-
barred. See Price v. City of San Antonio, Tex., 431 F.3d 890, 892 (5th Cir. 2005).
Federal courts look to federal law to ascertain when a § 1983 action accrues
and the limitations period begins to run, but “state law supplies the applicable
limitations period and tolling provisions.” Harris v. Hegmann, 198 F.3d 153,
156-57 (5th Cir. 1999).
      As this court has said previously, “in the event a state changes its
execution protocol after a death-row inmate's conviction has become final, the
limitations period will necessarily accrue on the date that protocol change



      2   These issues are combined for discussion.
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                                 No. 16-20364

becomes effective.” Walker v. Epps, 550 F.3d 407, 414 (5th Cir. 2008) This is
consistent with other circuits. Id. at 415.
      Further, the statute of limitations is an affirmative defense. This case
was dismissed under Rule 12(b)(6). Additionally, as Judge Dennis said in his
separate opinion, concurring in part and in judgment, in Wood v. Collier (Wood
II), No. 16-20556, --- F.App’x ----, 2017 WL 892490 (5th Cir. Mar. 6, 2017):
             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, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), when it read
      it to overrule Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582,
      90 L.Ed. 743 (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 Fed. 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).

Id. at *2. I agree.
      Under our existing authority, any change sets the accrual. This court
has already assumed the 2013 change in pentobarbital was the appropriate
accrual date in Wood II. Id at *1. The majority explicitly adopts Wood II’s
conclusions as published precedent. Thus, the 2013 change would be the
appropriate accrual date here.
      Further, even under the non-binding, persuasive authority of
Gissendaner v. Commissioner, Georgia Dept. of Corrections, 779 F.3d 1275,
1280-81 (11th Cir. 2015), the particular part of the protocol that changed – the

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                                    No. 16-20364

use of compounded pentobarbital – was substantial. Also, the Eighth Circuit
treated it as such in the non-binding, persuasive case of Zink v. Lombardi, 783
F.3d 1089 (8th Cir. 2015), which the majority here relies on heavily for other
reasons.
      Compounded pentobarbital is made in a different manner and the
change affects everything from the beyond-use date (BUD) to the availability
of data regarding its effects. 3 Additionally, Whitaker’s other claims, such as
access to counsel, are greatly affected by the change in protocol. The district
court essentially dismissed this claim because Texas previously complied with
the Sixth Amendment right to counsel at trial and there’s no basis to suggest
it extends to the day of execution.     However, such a finding ignores the issue
of whether the State can deprive Whitaker of the right to preserve other
constitutional rights, such as those at issue here, by denying the presence of
counsel at the critical stage of execution. Moreover, Whitaker raised the claims
regarding the absence of protocols that should be in place in his amended
complaint. Whitaker II was decided after that. Thus, this issue was clearly
not waived.
      This court has previously said:
            Under law-of-the-case doctrine, “the district court on
      remand, or the appellate court on a subsequent appeal, abstains
      from reexamining an issue of fact or law that has already been
      decided on appeal.” United States v. Teel, 691 F.3d 578, 582 (5th
      Cir.2012). A corollary of the law-of-the-case doctrine is the
      mandate rule, which “requires a district court on remand to effect
      [the court's] mandate and to do nothing else.” Gen Universal Sys.,
      Inc. v. HAL, Inc., 500 F.3d 444, 453 (5th Cir.2004) (citation and
      internal quotation marks omitted). “A district court on remand
      ‘must implement both the letter and the spirit of the appellate
      court's mandate and may not disregard the explicit directives of

      3 I note that the majority assumes Whitaker’s claims regarding retesting, the BUD
and concealment of information are not time-barred.
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                                  No. 16-20364

      that court.’ ” United States v. McCrimmon, 443 F.3d 454, 459 (5th
      Cir.2006) (quoting United States v. Matthews, 312 F.3d 652, 657
      (5th Cir.2002)). “Whether the law of the case doctrine foreclose[s]
      the district court's exercise of discretion on remand and the
      interpretation of the scope of this court's remand order present
      questions of law that this court reviews de novo.” United States v.
      Hamilton, 440 F.3d 693, 697 (5th Cir.2006) (citation and internal
      quotation marks omitted).

      Perez v. Stephens, 784 F.3d 276, 280 (5th Cir. 2015).

      This court already remanded “so that Whitaker is able to fully develop
the claims based on the existing protocol for an appropriate trial on the merits.”
The majority concedes that the “district court was bound to apply the holding
in Whitaker [II].” That did not happen. Rather than implement the letter and
spirit of this court’s mandate, the district court disregarded explicit directives
of this court, did not allow Whitaker meaningful discovery or an opportunity
to fully develop the claims, and later dismissed under Rule 12(b)(6) while
considering matters outside the pleadings without converting the motion to
dismiss to a motion for summary judgment.
      For these reasons, I would conclude that the district court clearly erred
and abused its discretion.
IV. Whether appellants’ second amended complaint states claims upon
which relief may be granted.

      Clearly the claims raised by Whitaker exist. Glossip v. Gross, 135 S.Ct.
2726 (2015). As stated previously herein, to survive a motion to dismiss for
failure to state a claim under Rule 12(b)(6), “the plaintiff must plead enough
facts to state a claim to relief that is plausible on its face.” In re Katrina Canal
Breaches Litig., 495 F.3d at 205. We must accept all well-pleaded facts as true,
viewing them in the light most favorable to Whitaker. Id. While “factual


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                                   No. 16-20364

allegations must be enough to raise a right to relief above a speculative level,”
the complaint “does not need detailed factual allegations.”
      The majority cites Glossip for the standard of a method-of-execution
claim. Glossip, 135 S.Ct. at 2737. But the portion cited by the majority sets
out what is required for a petitioner to establish a likelihood of success on the
merits for purposes of a stay of execution. Although the elements of a method
of execution claim – as pleaded by Whitaker here – are relevant, the
heightened standard of Glossip is not applicable because Whitaker must only
plausibly allege his claims to survive a 12(b)(6) dismissal rather than establish
a likelihood of success on the merits. Further, Baze v. Rees, 553 U.S. 35 (2008),
did not involve a Rule 12(b)(6) dismissal, but rather the court upheld
Kentucky’s three-drug lethal injection protocol after a 7-day bench trial.
Moreover, Fears v. Morgan (In re Ohio Execution Protocol), No. 17-3076, ---
F.3d ----, 2017 WL 2784503 (6th Cir. June 28, 2017), also involved a stay of
execution under Ohio’s three-drug lethal injection protocol, not a Rule
12(b)(b)(6) dismissal.
      In Zink, which again is non-binding, the Eighth Circuit concluded that
the plaintiffs’ specific allegations regarding compounded pentobarbital were
too speculative because their own experts “underscore[d] that the harms they
have identified are hypothetical.” Id. 783 F.3d at 1101. Zink relied in part on
Whitaker I and its heightened standard on a motion for preliminary injunction
to reach its conclusion. Id. at 1102. Zink also pointed to an Eleventh Circuit
case, Wellons v. Comm’r Ga. Dep’t of Corr., 754 F.3d 1260, 1265 (11th Cir.
2014), involving the same heightened standard. Id. More importantly, Zink,
Whitaker I, and Wellons were all decided before the Supreme Court decided
Glossip.



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                                  No. 16-20364

      The thread throughout the district court opinion is the circular logic of
Whitaker’s inability to prove his claims until after his rights are violated,
despite the fact that once that happens, Whitaker would be deceased and
unable to prove anything – particularly if he is denied counsel at execution.
However, this logic ignores the fact that Whitaker is not required to prove the
claims in his complaint to survive a motion to dismiss.
      The district court said, “compounded pentobarbital has successfully
killed the condemned in Texas.”         The relevant factor is not whether a
condemned man eventually dies. The district court also found that Whitaker
offered no data showing that errors in testing exist, how the integrity of the
test is compromised, or that the drug is likely to be defective if it is mis-tested.
However, the district court denied discovery on the testing, as discussed above
herein.
      The district court then improperly relied upon stipulations and evidence
outside the pleadings.      Further, the district court dismissed Whitaker’s
assertions that were derived from therapeutic use of old pentobarbital rather
than compounded pentobarbital. However, contradictorily, both the district
court and the majority conclude that there’s no difference between
pentobarbital and compounded pentobarbital, in which case the data should
have been relied upon.      Additionally, the Supreme Court has found that
“extrapolations and assumptions” from data on therapeutic doses of drugs used
for execution are entirely reasonable. See Glossip, 135 S.Ct. at 2741. This
would necessarily extend to extrapolations regarding the BUD.
      Based on all of this, I would conclude that Whitaker has pleaded enough
facts to state a plausible claim and should be given the opportunity to conduct
meaningful discovery.



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                                No. 16-20364

      Accordingly, for the reasons set out herein, I would vacate the district
court’s order of dismissal and remand. Therefore, I respectfully dissent.




                                      28
