   Case: 13-70007    Document: 00512358834    Page: 1   Date Filed: 08/30/2013




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

                                                                 FILED
                                                               August 30, 2013
                               No. 13-70007
                                                               Lyle W. Cayce
                                                                    Clerk



CHRISTOPHER SEPULVADO,

                                        Intervenor
                                        Plaintiff–Appellee,

versus

BOBBY JINDAL, Governor of Louisiana;
JAMES M. LEBLANC,
Secretary, Department of Public Safety and Corrections;
BURL CAIN, Warden, Louisiana State Penitentiary;
ANGIE NORWOOD, Warden, Death Row;
LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS;
JOHN DOES, Unknown Executioners,

                                        Defendants–Appellants.




                Appeal from the United States District Court
                    for the Middle District of Louisiana




Before STEWART, Chief Judge, SMITH and SOUTHWICK, Circuit Judges.
JERRY E. SMITH, Circuit Judge:


     Defendants Bobby Jindal, Governor of Louisiana; the Louisiana Depart-
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ment of Public Safety and Corrections; and various state officials (the “state”)
appeal a preliminary injunction and stay of execution granted to death-row
inmate Christopher Sepulvado.1 Finding reversible error, we reverse the injunc-
tion and the stay.


                                            I.
      In 1993, Sepulvado was convicted and sentenced to death for the first-
degree murder of his six-year-old stepson. His conviction and sentence were
affirmed. State v. Sepulvado, 672 So. 2d 158 (La.), cert. denied, 519 U.S. 934
(1996). He sought post-conviction relief in state and federal court. The federal
district court denied habeas corpus relief, Sepulvado v. Cain, No. 00-596 (W.D.
La. Aug. 9, 2002), and denied Sepulvado’s application for a certificate of appeala-
bility. In a detailed opinion setting out the facts and proceedings, we denied
Sepulvado’s request for a certificate of appealability on six issues, Sepulvado v.
Cain, No. 02-30909, 2003 WL 261769 (5th Cir.) (per curiam), cert. denied, 540
U.S 842 (2003), then dismissed his successive habeas petition for want of
jurisdiction, In re Sepulvado, 707 F.3d 550, 552 (5th Cir. 2013), petition for cert.
filed (May 8, 2013) (No. 12-10251).
      On December 12, 2012, a state court issued a death warrant and set Sepul-
vado’s execution for February 13, 2013. State law provides that “[e]very sen-
tence of death . . . shall be by lethal injection; that is, by the intravenous injec-
tion of a substance or substances in a lethal quantity into the body of a person
convicted until such person is dead.” La. R.S. 15:569(B) (2012). “Prior to 2010,
the State of Louisiana used a three-drug procedure to execute inmates via lethal
injection.” Hoffman v. Jindal [Hoffman I], No. 12-796-JJB, 2013 WL 489809,

      1
        In subsequent proceedings, the district court has concluded that “Sepulvado cannot
maintain actions as to Governor Jindal and the DPSC” but that “[his] claims should be per-
mitted to proceed as to all [other] named Defendants.” Hoffman v. Jindal [Hoffman II],
No. 12-796-JJB, 2013 WL 1637244, at *7, *9 (M.D. La. Apr. 16, 2013).

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at *1 (M.D. La. Feb. 7, 2013). Since 2010, the first drug in the procedure—
sodium thiopental—has been unavailable. In December 2010, the state repealed
the section of its administrative code enumerating the specific procedures to be
followed for the lethal injection of those individuals sentenced to death.2
       On December 20, 2012, death-row inmate Jessie Hoffman3 sued under 42
U.S.C. § 1983 alleging, among other claims, that the state’s refusal to disclose
the details of its execution protocol violates the Due Process Clause of the
Fourteenth Amendment. “Counsel for the State has indicated that . . . a single
dose of pentobarbital will now be used to execute inmates. However, the State
has refused to officially disclose what the protocol is until formal discovery pro-
cedures have been complied with.” Hoffman I, 2013 WL 489809, at *1.
       On February 6, 2013, the district court granted Sepulvado’s January 23
motion to intervene in Hoffman’s suit. The next day—less than a week before
Sepulvado’s scheduled execution—the court issued a preliminary injunction and
stay, reasoning as follows:
         “Fundamental fairness, if not due process, requires that the exe-
       cution protocol that will regulate an inmate’s death be forwarded to
       him in prompt and timely fashion.” Oken v. Sizer, 321 F. Supp. 2d
       658, 664 (D. Md. 2004). Fundamental fairness requires that the
       inmate be given meaningful and adequate notice of how his rights
       have been affected by the changes in the execution protocol. Sepul-
       vado is entitled to review the full protocol itself.

Id. at *2.


                                               II.
       We begin by noting what is not at issue. Sepulvado does not challenge the

       2
        See La. Admin. Code tit. 22 § 103, amended by Louisiana Register, Vol. 36, No. 3,
at 525–28 (March 20, 2010), repealed by Louisiana Register, Vol. 36, No. 12, at 2873 (Dec. 20,
2010).
       3
           Hoffman is not a party to this appeal.

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legitimacy or legality of his death sentence, which has been upheld by every
court that has considered it over the past two decades. “[C]apital punishment
is constitutional. . . . It necessarily follows that there must be a means of carry-
ing it out.”4 In Baze, the Court explicitly approved lethal injection as a legal
means of execution.5
       Baze addressed Kentucky’s three-drug protocol, but “a one drug protocol
[is] also acceptable under the flexible Baze standard. . . .” Thorson v. Epps
[Thorson II], 701 F.3d 444, 447 n.3 (5th Cir. 2012), petition for cert. filed (Feb. 12,
2013) (No. 12-1010). Other federal courts of appeals agree that pentobarbital-
only protocols comport with the Eighth Amendment’s prohibition against cruel
and unusual punishment.6 Indeed, the losing plaintiffs in Baze urged Kentucky
to do what Louisiana has done: Adopt “a one-drug protocol that dispenses with
the use of pancuronium and potassium chloride . . . .”7
       The district court did not reach Sepulvado’s Eighth Amendment claim.8
Our review is thus limited to determining whether the court erred by issuing an
injunction and stay on due-process grounds.



       4
           Baze v. Rees, 553 U.S. 35, 47 (2008) (plurality opinion) (citation omitted).
       5
        See id. at 62–63 (plurality opinion); id. at 87 (Stevens, J., concurring); id. (Scalia, J.,
concurring); id. at 107 (Thomas, J., concurring); id. at 113 (Breyer, J., concurring).
       6
        See Towery v. Brewer, 672 F.3d 650, 659 (9th Cir.) (per curiam), cert. denied, 132 S. Ct.
1656 (2012); Cooey v. Strickland, 589 F.3d 210, 221 (6th Cir. 2009).
       7
        Baze, 553 U.S. at 51 (plurality opinion); see also Cooey, 589 F.3d at 222 (“By adopting
a one-drug injection, Ohio purposely ceased using the pancuronium bromide and potassium
chloride that had been the focus of previous Eighth Amendment challenges to lethal injection
protocols. . . .”).
       8
         Hoffman I, 2013 WL 489809, at *1 (“There are two claims raised in Sepulvado’s Sec-
tion 1983 complaint and this ruling addresses the first of the two. The Court expresses no
opinion on the second issue. The first issue is a 14th Amendment Due Process Claim relative
to the disclosure of the current protocol for the execution of an inmate by the State of Louisi-
ana. The second issue is an 8th Amendment Cruel and Unusual Punishment claim.”).

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                                       III.
      Regarding the standard for an injunction,

        A preliminary injunction is an extraordinary remedy that should
      only issue if the movant establishes:

            (1) a substantial likelihood of success on the merits,
            (2) a substantial threat of irreparable injury if the
            injunction is not issued, (3) that the threatened injury
            if the injunction is denied outweighs any harm that will
            result if the injunction is granted, and (4) that the grant
            of an injunction will not disserve the public interest.

Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009) (quoting Speaks v. Kruse,
445 F.3d 396, 399–400 (5th Cir. 2006)).
      We review a preliminary injunction for abuse of discretion. See Janvey v.
Alguire, 647 F.3d 585, 591–92 (5th Cir. 2011). “Despite this deferential stan-
dard, ‘a decision grounded in erroneous legal principles is reviewed de novo.’” Id.
at 592 (quoting Byrum, 566 F.3d at 445). “As to each element of the district
court’s preliminary-injunction analysis, the district court’s findings of fact are
subject to a clearly-erroneous standard of review, while conclusions of law are
subject to broad review and will be reversed if incorrect.” Id. (internal quotation
marks omitted).


                                       IV.
      “To assess the likelihood of success on the merits, we look to standards
provided by the substantive law.” Id. at 596 (internal quotation marks omitted).
The district court determined that Sepulvado was likely to prevail on his claim
that the Due Process Clause of the Fourteenth Amendment entitles him to
prompt and detailed disclosure of Louisiana’s most recent execution protocol.
Hoffman I, 2013 WL 489809, at *2. The only authority the district court cited
to support its conclusion was Oken v. Sizer, 321 F. Supp. 2d at 664, in which the

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                                       No. 13-70007

Supreme Court, 542 U.S. 916, 916 (2004), swiftlySSand summarily—vacated the
stay.9
         At least one of our sister circuits has rejected a similar claim based on
Oken. Less than twenty-four hours before the scheduled execution of inmate
Beaty, Arizona informed him that it intended to substitute pentobarbital for
sodium thiopental in its lethal injection protocol. Beaty v. Brewer [Beaty I], 791
F. Supp. 2d 678, 682–83 (D. Ariz. 2011). Beaty alleged that the “failure to timely
notify him of the drug substitution violates his right to due process under the
Fourteenth Amendment because he lacks sufficient time to review the protocol
change, as well as his medical records, to determine whether there are any con-
stitutional concerns with the new drug.” Id. at 681. The district court disagreed:
           In his motion for injunctive relief, Plaintiff relies on Oken in sup-
         port of his assertion that he has a right to reasonable notice of proto-
         col changes so that he can ensure such changes comport with con-
         stitutional requirements. However, this Court cannot rely on one
         district court’s unsupported assertion that capital plaintiffs have
         such a due process right, especially in view of the fact that the
         United States Supreme Court vacated the stay of execution granted
         by the district court in Oken. . . .

            Moreover, other than the district court order in Oken, Plaintiff
         cites no authority to support his allegation that the Due Process
         Clause provides a right to review protocol changes and attempt to
         challenge them. Other courts to address this issue have found no
         such authority. See Clemons v. Crawford, 585 F.3d 1119, 1129 n.9
         (8th Cir. 2009) (noting lack of authority indicating due process right
         to probe into backgrounds of execution personnel); Powell v. Thomas
         [Powell I], . . . 784 F. Supp. 2d 1270, 1282–83 . . . (M.D. Ala. . . .
         2011) (finding no authority for proposition that condemned inmate
         has due process right to receive notice and an opportunity to be
         heard regarding substitution of pentobarbital).



         9
          See also Harris v. Johnson, 376 F.3d 414, 419 (5th Cir. 2004) (per curiam) (vacating
district court opinion that had granted injunctive relief to death-row inmate and had distin-
guished Supreme Court’s vacatur in Oken).

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          Given the lack of authority to support Plaintiff’s procedural due
       process violation, the Court finds that he has failed to establish a
       likelihood of success on the merits of that claim to notice. . . .

Id. at 685–86 (citation omitted). The Ninth Circuit affirmed “[f]or the reasons
expressed by the district court. . . .” Beaty v. Brewer [Beaty II], 649 F.3d 1071,
1072 (9th Cir. 2011) (per curiam) (emphasis added).
       Sepulvado relies heavily on Arthur v. Thomas, 674 F.3d 1257, 1263–64
(11th Cir. 2012) (per curiam), in which the court reversed the dismissal of a
claim that Alabama had materially deviated from its execution protocol. Arthur
is inapposite, because the court grounded its decision in the Eighth Amendment
and the Equal Protection Clause. See id. at 1262, 1263. Arthur also alleged that
the “Alabama’s policy of keeping information about its lethal injection procedure
secret violates the Due Process Clause. . . . ” Id. at 1259. The court did not
reach that claim and expressly refrained from requiring Alabama to produce its
execution protocol.10 We agree with the state that nothing in Arthur overruled
a prior holding from the same court rejecting an intervenor’s claim—made pur-
suant to the Eighth Amendment rather than the Fourteenth—that he possessed
a “broad . . . right to know the details of his execution in order to ensure proper
oversight and avoid uncertainty that unnecessarily creates anxiety. . . .”11


       10
          See Arthur, 674 F.3d at 1263 n.7 (emphasis added) (“Arthur argues that it is neces-
sary for his Equal Protection and Due Process claims that Alabama make available a copy of
its written execution protocol. We leave it to the district court to determine if production of Ala-
bama’s written execution protocol is necessary to resolve Arthur’s claims.”).
       11
          Powell v. Thomas (Powell II), 641 F.3d 1255, 1258 (11th Cir. 2011) (per curiam); see
Valle v. Singer, 655 F.3d 1223, 1237 n.13 (11th Cir.) (per curiam) (adopting portion of district
court opinion that concluded “to the extent Valle is claiming that secrecy prevented him from
litigating his issues up to now, this claim was rejected in Powell [] II and the failure to disclose
is not unconstitutional”), cert. denied, 132 S. Ct. 73 (2011); Powell v. Thomas (Powell III), 643
F.3d 1300, 1305 (11th Cir. 2011) (per curiam) (finding no error in the dismissal—on statute-of-
limitations grounds—of death-row inmate’s claim “that his rights under the Eighth and Four-
teenth Amendments were violated because Alabama’s private execution protocol was changed
secretly and without any oversight”).

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       In summary, no appellate court has recognized the due-process claim on
which the district court a quo granted relief; we decline to be the first. Sepul-
vado’s assertion of necessity—that Lousiana must disclose its protocol so he can
challenge its conformity with the Eighth Amendment—does not substitute for
the identification of a cognizable liberty interest.12 According to the district
court, “[i]t is axiomatic that . . . an inmate who is to be executed cannot challenge
a protocol as violative of the 8th Amendment until he knows what that protocol
contains.” Hoffman I, 2013 WL 489809, at *1. We disagree.13 Adopting the
district court’s reasoning would frustrate “the State’s significant interest in
enforcing its criminal judgments. . . . ” Nelson v. Campbell, 541 U.S. 637, 650
(2004) (citation omitted). Courts are not supposed to function as “boards of
inquiry charged with determining ‘best practices’ . . . .” Baze, 553 U.S. at 51
(plurality opinion).
       Despite Louisiana’s concealment of its protocol, Sepulvado has managed
to assert a litany of specific cruel-and-unusual-punishment claims.14 Other


       12
         See, e.g., Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989) (citations omitted)
(“The types of interests that constitute ‘liberty’ and ‘property’ for Fourteenth Amendment
purposes are not unlimited. . . . Rather, an individual claiming a protected interest must have
a legitimate claim of entitlement to it.”).
       13
          See Valle, 655 F.3d at 1237 n.13 (rejecting claim that failure to disclose protocol pre-
vented death-row inmate from litigating underlying issues); see also Clemons, 585 F.3d at 1129
n.9 (noting lack of authority indicating due-process right to probe into backgrounds of execu-
tion personnel).
       14
          Sepulvado has alleged that (1) the executioners are not medical professionals and
have not received adequate training; (2) the equipment has not been tested or maintained
(3) the protocols are not sufficiently specific and thus there is a likelihood that the execution
will be carried out differently each time and subject to variances; (4) the executioners are not
required to be familiar with the drugs; (5) there is no standardized timing for the administra-
tion of the drugs; (6) there is no provision for a medical history review; and (7) there are no
provisions for practice sessions. Although Sepulvado’s underlying Eighth Amendment claim
is not before us, it appears to constitute “an attempted constitutionalization of the planned
regimen for practice by staff, with nothing but guessing that staff lack the judgment and skill
to administer the pentobarbital. . . .” Beaty I, 791 F. Supp. 2d at 686, aff’d by Beaty II, 649
                                                                                    (continued...)

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                                         No. 13-70007

inmates have survived motions to dismiss and have obtained discovery on the
strength of similar, unsubstantiated allegations.15                   In later proceedings,
Sepulvado himself has overcome the state’s contention that his complaint failed
to state a claim. See Hoffman II, 2013 WL 1637244, at *3–*6.
       There is no violation of the Due Process Clause from the uncertainty that
Louisiana has imposed on Sepulvado by withholding the details of its execution
protocol. Perhaps the state’s secrecy masks “a substantial risk of serious
harm,”16 but it does not create one. Having failed to identify an enforceable right
that a preliminary injunction might safeguard, Sepulvado cannot prevail on the
merits.17
       The injunction, which is “grounded in erroneous legal principles,” is an
abuse of discretion. Janvey, 647 F.3d at 592 (quoting Byrum, 566 F.3d at 445).
“Because we have determined that [Sepulvado] cannot show a substantial likeli-
hood of success . . . , we need not address [the state]’s additional arguments
regarding the other necessary elements for preliminary injunctive relief.” Our
ruling on the initial element is sufficient for reversal. The holding on the initial
element is sufficient to vacate the injunction.” La Union del Pueblo Entero v.
Fed. Emergency Mgmt. Agency, 608 F.3d 217, 225 (5th Cir. 2010).




       14
         (...continued)
F.3d at 1072.
       15
          See, e.g., Chester v. Beard, 657 F. Supp. 2d 534, 542–45 (M.D. Pa. 2009) (denying
motion to dismiss and permitting discovery to proceed); see also Thorson v. Epps [Thorson I],
No. 1:08-CV-1261, 2009 WL 1766806, at *2 (N.D. Miss. June 22, 2009) (denying motion to
dismiss).
       16
            Baze, 553 U.S. at 52 (plurality opinion) (internal quotation marks omitted).
       17
         See Albright v. Oliver, 510 U.S. 266, 271 (1994) (plurality opinion) (citation and inter-
nal quotation marks omitted) (“Section 1983 is not itself a source of substantive rights, but
merely provides a method for vindicating federal rights elsewhere conferred. . . . The first step
in any such claim is to identify the specific constitutional right allegedly infringed.”).

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                                             V.
       “We review a district court’s grant of a stay of execution for abuse of dis-
cretion.” Adams v. Thaler, 679 F.3d 312, 318 (5th Cir.), cert. denied, 132 S. Ct.
1995 (2012). “[A] stay of execution is an equitable remedy. It is not available as
a matter of right, and equity must be sensitive to the State’s strong interest in
enforcing its criminal judgments without undue interference from the federal
courts.” Hill v. McDonough, 547 U.S. 573, 584 (2006). “As we read Hill, a plain-
tiff cannot wait until a stay must be granted to enable him to develop facts and
take the case to trial—not when there is no satisfactory explanation for the
delay.” Reese v. Livingston, 453 F.3d 289, 291 (5th Cir. 2006).


                                             VI.
       “In White v. Johnson[, 429 F.3d 572 (5th Cir. 2005) (per curiam)], [we]
denied a motion for a stay, explaining that the inmate had been sentenced to
death for over six years and ‘only now, with his execution imminent, has decided
to challenge a procedure for lethal injection that the State has been using for his
entire stay on death row.’”18 Sepulvado has been on death row for more than
twenty years. The State maintains that his intervention in Hoffman’s suit—less
than a month before his scheduled execution—was impermissibly dilatory. The
district court disagreed, concluding that
       there is a satisfactory explanation for the delay. Sepulvado has
       been trying to determine what the protocol is for years and the State
       will not provide this information. It is also factually distinguishable
       from White because in White, the inmate was challenging a known
       procedure that had been in place for the duration of his death row
       stay. Here, ever since 2010, the procedure has been unknown.

Hoffman I, 2013 WL 489809, at *1.

       18
         Hoffman I, 2013 WL 489809, at *1 (quoting White, 429 F.3d at 574); see also Hill, 547
U.S. at 584 (citing White).

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       As the district court observed, Louisiana’s repeal of its lethal-injection
protocol—which forms the basis of Sepulvado’s due-process claim—occurred two
years before he challenged the state’s secrecy on the eve of his execution.19 Any
harm accrued in December 2010, and Sepulvado has not explained his failure to
bring a claim before December 2012.20 The district court abused its discretion
by granting Sepulvado’s untimely motion for a stay. Even assuming arguendo
that the motion was timely, there is no equitable basis for further delay, because
Sepulvado is not entitled to injunctive relief.21
       The preliminary injunction and stay of execution are REVERSED.




       19
         Before intervening in Hoffman’s suit, Sepulvado sought to exhaust his claim by filing
a request for an administrative remedy procedure on December 18, 2012—after his most
recent death warrant was signed and almost two years after Louisiana had repealed the last
published version of its execution protocol. See Louisiana Register, Vol. 36, No. 12, at 2873
(Dec. 20, 2010), repealing La. Admin. Code tit. 22 § 103.
       20
         From Sepulvado’s briefing, we infer the reason for his delay was that proceedings in
his primary state-court case were stayed from July 2008 until December 2012. That stay does
not excuse Sepulvado’s failure timely to develop a § 1983 claim based on the due-process viola-
tion that allegedly accrued in December 2010.

       Since January 22, 2010, Sepulvado has been party to additional state-court litigation
concerning whether the protocol is a “rule” for purposes of the Louisiana Administrative Pro-
cedure Act. See Code v. Dep’t of Pub. Safety & Corr., 103 So. 3d 1118 (La. App. 1st Cir. 2012),
writ denied, 105 So. 3d 59 (La. 2013). That litigation has no bearing on the timeliness of
Sepulvado’s § 1983 claim.
       21
          Cf. Adams, 679 F.3d at 323; Herrera v. Collins, 954 F.2d 1029, 1034 (5th Cir. 1992)
aff’d, 506 U.S. 390 (1993).

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