     Case: 13-20750      Document: 00512912136         Page: 1    Date Filed: 01/22/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-20750                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
THOMAS WHITAKER; PERRY WILLIAMS,                                         January 22, 2015
                                                                           Lyle W. Cayce
              Plaintiffs - Appellants                                           Clerk

v.

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

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:13-CV-2901


Before PRADO, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Death-row inmates Thomas Whitaker and Perry Williams appeal the
district court’s Fed. R. Civ. P. 12(b)(1) dismissal of their civil action under 42
U.S.C. § 1983 asserting violations of their rights to due process, access to
courts, and to be free from cruel and unusual punishment.                      Because we


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-20750    Document: 00512912136       Page: 2   Date Filed: 01/22/2015



                                 No. 13-20750
conclude that the district court clearly erred in dismissing the claims on the
basis that they are not yet ripe, we VACATE the order of the district court and
REMAND this matter as set out herein.
                  FACTS AND PROCEDURAL HISTORY
      At the end of September 2013, the Texas Department of Criminal
Justice’s (TDCJ) supply of Nembutal, the brand name of pentobarbital
prescribed by the current execution protocol, expired. The petitioners had
information indicating that TDCJ had obtained a supply of propofol,
midazolam and hydromorphone, but they lacked information regarding the
drugs that TDCJ planned to use in upcoming executions.
      As a result of this lack of information, death-row inmates Thomas
Whitaker, Perry Williams and Michael Yowell filed an original complaint
under 42 U.S.C. § 1983 on October 1, 2013, asserting violations of their rights
to due process, to access courts, and to be free from cruel and unusual
punishment against various representatives of the TDCJ (hereinafter
collectively referred to as the “State”).   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. Yowell was executed, and
the district court dismissed him from the case.
      Whitaker and Williams then amended their complaint. The State filed
a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and the district court
granted it.   Thereafter, Whitaker and Williams (hereinafter collectively
referred to in the singular as “Whitaker”) filed this appeal.
                                DISCUSSION
      This court reviews a district court’s ruling on a Rule 12(b)(1) motion to
dismiss for lack of subject matter jurisdiction de novo. Raj v. La. State Univ.,


                                       2
     Case: 13-20750         Document: 00512912136            Page: 3      Date Filed: 01/22/2015



                                          No. 13-20750
714 F.3d 322, 327 (5th Cir. 2013). The plaintiff bears the burden of proof that
jurisdiction exists. Id. 1
       Whitaker asserts that the district court’s order is in direct conflict with
precedent of this court and that it violates due process and access to the courts.
       By order dated December 4, 2013, the district court said the claims were
being dismissed “[b]ecause Thomas Whitaker and Perry Williams do not know
the means that Texas will select for their execution, their claim of an injury
from that unknown means is hypothetical. Courts do not address issues that
are not yet ripe.”
       Whitaker asserts that the district court’s ruling is in direct conflict with
numerous decisions of this court. He is correct.
       This court has repeatedly and consistently maintained that inmates such
as Whitaker are not entitled to equitable, eleventh-hour injunctive relief based
on claims under § 1983. As this court has explained: “Method of execution
cases may be brought in a § 1983 suit instead of a habeas petition, but the §
1983 claim should not unduly threaten the State’s ability to carry out the
scheduled execution.” White v. Johnson, 429 F.3d 572, 573 (5th Cir. 2005)
(internal marks omitted). In White, this court refused to decide whether White
properly stated a claim under § 1983 because he was not entitled to equitable
relief “due to his dilatory filing.” White, 429 F.3d at 574. The court also said:
             The State concedes that when Harris’s conviction became
       final on direct review, his challenge to the State’s method of
       execution, in the absence of dramatic changes to the State’s
       protocol, would have been appropriately filed at any time
       thereafter and need not await an imminent execution date. We
       agree.


       1 The State’s assertion that Whitaker sought only injunctive relief and, thus, that this court
reviews only for an abuse of discretion, is erroneous. Whitaker has not sought only injunctive relief.
Further, even if Whitaker had sought only injunctive relief, we would conclude that the district court
abused its discretion.

                                                  3
     Case: 13-20750      Document: 00512912136         Page: 4    Date Filed: 01/22/2015



                                      No. 13-20750


Id. (Internal citation omitted). The court then affirmed the district court’s
dismissal. See also Neville v. Johnson, 440 F.3d 221, 222 (5th Cir. 2006) (“A
challenge to a method of execution may be filed any time after the plaintiff’s
conviction has become final on direct review.”) 2 ; and Kincy v. Livingston, 173
F. App’x 341, 343 (5th Cir. 2006) (“[D]istrict court correctly applied our
precedent” in dismissing complaint with prejudice because of delay in filing.).
       These cases were controlled by this court’s holding in Harris v. Johnson,
376 F.3d 414 (5th Cir. 2004). In Harris, this court specifically concluded that
waiting until the execution date was set would be too late, saying:
             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
       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.

Harris, 376 F.3d at 417. The court then vacated the temporary restraining
order granted by the district court and dismissed Harris’ complaint.
       In this matter, during a status conference on October 17, 2013, the
district court inquired, “We still have no death warrant?” The district court
later conveyed his certainty that the parties have no idea what the State of
Texas will do and indicated that the claims will not be ripe until the death
warrant is signed, i.e., the execution date is set.
       The district court’s statement that “Thomas Whitaker and Perry
Williams do not know the means that Texas will select for their execution” is



       2Thomas Whitaker’s conviction was final in 2009. Whitaker v. State, 286 S.W.3d 355
(Tex. Crim. App. 2009). Perry Williams’ conviction was final in 2008. Williams v. State, 273
S.W.3d 200 (Tex. Crim. App. 2008).
                                             4
     Case: 13-20750       Document: 00512912136         Page: 5    Date Filed: 01/22/2015



                                      No. 13-20750
not a basis for determining that these claims are not ripe. Instead, that
statement establishes the lack of information which is part of the very basis
for the suit.       Further, Texas’ current protocol uses the compounded
pentobarbital from a specific source. So, unless Texas provides a different
protocol – at which time a new claim could appropriately be filed - the current
protocol is presumably “the means that Texas will select for their execution.”
       If Whitaker were to wait until an execution date was set to file this
action, he would be unable to stay the execution under this court’s clearly
established precedent to pursue these claims. This court has clearly held that
waiting until an execution date is set or until some point closer to execution
would “serve no purpose but to further delay justice.” Harris, 376 F.3d at 419.
Based on our case law, Whitaker must be allowed to proceed now. Thus, the
district court clearly erred in dismissing the claims on the basis that they are
not yet ripe.
       Further, the premature dismissal makes it improper to consider
Whitaker’s other claims at this point. Though the district court and this court
found that Whitaker was not likely to succeed in denying the temporary
restraining order and this court has not looked favorably on similar claims, 3
Whitaker’s claims have not been fully developed. Accordingly, we VACATE
the order of the district court and REMAND this matter so that Whitaker is
able to fully develop the claims based on the existing protocol for an
appropriate trial on the merits.




       3 Sepulvado v. Jindal, 729 F.3d 413 (5th Cir. 2013); Sells v. Livingston, 750 F.3d 478
(5th Cir. 2014); Trottie v. Livingston, 766 F.3d 450, 452 (5th Cir. 2014).
                                             5
