     Case: 15-60604   Document: 00513373906     Page: 1   Date Filed: 02/10/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 15-60604                   United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
RICHARD JORDAN; RICKY CHASE,                                   February 10, 2016
                                                                  Lyle W. Cayce
             Plaintiffs – Appellees,                                   Clerk

THOMAS EDWIN LODEN, JR.,

             Intervenor – Appellee,

v.

COMMISSIONER MARSHALL L. FISHER, Commissioner, Mississippi
Department of Corrections, in his Official Capacity; SUPERINTENDENT
EARNEST LEE, Superintendent, Mississippi State Penitentiary, in his
Official Capacity; THE MISSISSIPPI STATE EXECUTIONER, In his Official
Capacity; UNKNOWN EXECUTIONERS, in their Official Capacities,

             Defendants – Appellants.


                Appeals from the United States District Court
                   for the Southern District of Mississippi


Before HIGGINBOTHAM, OWEN, and ELROD, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
      Plaintiffs Richard Jordan and Ricky Chase and Intervenor Thomas
Loden are prisoners awaiting execution in the state of Mississippi. They sued
under § 1983 in federal district court seeking an injunction preventing the
state from conducting executions with compounded pentobarbital. The district
court granted a broad preliminary injunction. Because Mississippi’s sovereign
immunity prevents a federal court from enjoining state officials to follow state
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law, and because Plaintiffs 1 have not shown they are likely to succeed in
establishing a violation of either their procedural or substantive due process
rights, we VACATE the injunction and REMAND.
                                             I.
      Richard Jordan was sentenced to death following his conviction on
charges of kidnapping and murdering Edwina Marter on January 13, 1976.
Jordan v. State, 786 So.2d 987, 997 (Miss. 2001). Ricky Chase was sentenced
to death following his conviction on charges of murdering Elmer Hart during
the course of a robbery. Chase v. State, 645 So.2d 829, 834 (Miss. 1994). Thomas
Loden was sentenced to death following his conviction on charges of
kidnapping, raping, and murdering Leesa Marie Gray. Loden v. State, 971
So.2d 548, 551–52 (Miss. 2007). All three await execution in the state of
Mississippi. Jordan and Chase brought suit challenging the method by which
Mississippi planned to execute them. Loden intervened, echoing their claims.
      Mississippi law provides that “the manner of inflicting the punishment
of death shall be by continuous intravenous administration of a lethal quantity
of an ultra short-acting barbiturate or other similar drug in combination with
a chemical paralytic agent until death is pronounced.” Miss. Code Ann. § 99-
19-51. At the time this lawsuit began, the state’s lethal injection protocol called
for the infusion of sodium pentothal or, if sodium pentothal could not be
obtained, pentobarbital as the first drug in a three-drug cocktail. Plaintiffs
sued various state officers seeking an injunction forbidding the use of
pentobarbital as contrary to § 99-19-51’s requirement of an “ultra short-acting
barbiturate or other similar drug” and forbidding the use of compounded drugs
which they alleged violated their Eighth and Fourteenth Amendment rights.



      1  We refer to Jordan, Chase, and Loden collectively as Plaintiffs. Loden is an
intervenor but raises claims indistinguishable from those raised by Chase and Jordan.
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       Immediately before the district court conducted a hearing on Plaintiffs’
motion for a preliminary injunction, Mississippi substituted a revised lethal
injection protocol that allowed it to use midazolam as the first drug in the
three-drug cocktail if it could not obtain sodium pentothal or pentobarbital.
The district court concluded Plaintiffs had demonstrated a substantial
likelihood of success “at least, on their claim that Mississippi’s failure to use a
drug which qualifies as an ‘ultra short-acting barbiturate or other similar drug’
as required by Miss. Code Ann. § 99-19-51 violates Mississippi statutory law
and the Due Process Clause of the Fourteenth Amendment.” The court granted
a sweeping preliminary injunction preventing Mississippi from using
“pentobarbital, specifically in its compounded form, or midazolam” to execute
any death row inmate and required the state to submit any other proposed
method of execution for the court’s approval. Mississippi appeals. 2
                                                  II.
       In order to obtain a preliminary injunction, the party seeking the
injunction must establish:
       (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.
Sepulvado v. Jindal, 729 F.3d 413, 417 (5th Cir. 2013). “A preliminary
injunction is an extraordinary remedy which should not be granted unless the


       2Mississippi asserts that, as it no longer has pentobarbital and is currently unable to
obtain more, there is no live controversy regarding pentobarbital and the issue is moot.
Because other states retain access to pentobarbital it seems possible that Mississippi could
regain access in the future. We are reluctant to conclude the issue is moot because we are not
convinced “subsequent events [have] made it absolutely clear that the allegedly wrongful
behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs., 528 U.S. 167, 189 (2000) (quoting United States v. Concentrated Phosphate
Export Ass’n, 393 U.S. 199, 203 (1968)).
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party seeking it has clearly carried the burden of persuasion on all four
requirements.” Bluefield Water Ass’n v. City of Starkville, 577 F.3d 250, 253
(5th Cir. 2009). A district court’s decision to grant a preliminary injunction is
reviewed for abuse of discretion. Id. 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.’” Janvey v. Alguire,
647 F.3d 585, 592 (5th Cir. 2011) (quoting White v. Carlucci, 862 F.2d 1209,
1211 (5th Cir. 1989)).
       “To assess the likelihood of success on the merits, we look to standards
provided by the substantive law.” Sepulvado, 729 F.3d at 418 (quoting Janvey,
647 F.3d at 596). Plaintiffs face a challenge here. Mississippi’s sovereign
immunity prevents a federal court from issuing an injunction against state
officials solely to require them to adhere to state law. Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 106–07 (1984) (“[I]t is difficult to think of a
greater intrusion on state sovereignty than when a federal court instructs state
officials on how to conform their conduct to state law.”). Plaintiffs’ claims
seeking enforcement of § 99-19-51 may only proceed in federal court if a
provision of federal law or the United States Constitution creates a right to the
enforcement of § 99-19-51. 3
       Section 1983 provides a cause of action against state actors for plaintiffs
who suffer “deprivation of any rights, privileges or immunities secured by the
Constitution and laws” at the hands of those acting with the authority of a
state. 42 U.S.C. § 1983. Here Plaintiffs assert that Mississippi’s intention to
execute them using pentobarbital or midazolam violates the Fourteenth


       3 A plaintiff can sometimes avoid the jurisdictional bar posed by sovereign immunity
by suing a state officer and challenging the actions of that officer as prohibited by federal law
and therefore ultra vires. Ex Parte Young, 209 U.S. 123 (1908). So long as the plaintiff seeks
prospective injunctive relief, a federal court may consider whether the state officer’s actions
are forbidden by federal law. Edelman v. Jordan, 415 U.S. 651 (1974).
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                                       No. 15-60604
Amendment’s due process clause. The guarantee of due process enshrined in
the Fourteenth Amendment has two components—(1) a guarantee of
procedural protections when a state seeks to deprive an individual of protected
liberty or property interests, and (2) a substantive protection against conduct
that “shocks the conscience.” See County of Sacramento v. Lewis, 523 U.S. 833,
846 (1998); Meza v. Livingston, 607 F.3d 392, 399 (5th Cir. 2010). The first
component of the due process clause requires a two-step analysis: first a court
must determine whether the plaintiff has a protected liberty or property
interest and then the court must determine whether the state has provided
adequate procedures for the vindication of that interest. Wilkinson v. Austin,
545 U.S. 209, 213 (2005). The second component of the due process clause does
not rest on state law. According to the Supreme Court, this component provides
substantive rather than merely procedural protections and comes into play
when “the behavior of the governmental officer is so egregious, so outrageous,
that it may fairly be said to shock the contemporary conscience” regardless of
whether the behavior in question conforms or fails to conform to state laws.
County of Sacramento, 523 U.S. at 862 n.8.
       Because the district court was not clear as to which aspect of the due
process clause Mississippi’s protocol violates, we examine both prongs. 4 We
ask, first, whether Mississippi’s alleged departure from the state law governing
its lethal injection protocol violates Plaintiffs’ procedural due process rights
and, second, whether the same alleged departure from state law violates
Plaintiffs’ substantive due process rights.




       4 The district court did not reach Plaintiffs’ remaining claims alleging a violation
Plaintiffs’ right to fair notice of Mississippi’s method of execution, alleging a violation of
Plaintiffs’ Eighth Amendment rights arising from Mississippi’s failure to use a one-drug
protocol, and alleging a violation of Plaintiffs’ right of access to courts. Therefore we do not
address those claims here. See Sepulvado, 729 F.3d at 417.
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                                  No. 15-60604
                                            A.
      We begin by examining whether Plaintiffs can show Mississippi’s
proposed method of execution violates the procedural protections of the
Fourteenth Amendment because it fails to conform to state law. The
Fourteenth Amendment’s right to procedural due process guarantees citizens
the protection of adequate procedures before allowing a state to deprive them
of their property, liberty, or life. Liberty interests protected by the Fourteenth
Amendment “may arise from the Constitution itself, by reason of guarantees
implicit in the word ‘liberty,’ or it may arise from an expectation or interest
created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005)
(citations omitted); accord Wolff v. McDonnell, 418 U.S. 539, 556–57 (1974).
The Supreme Court recognizes a narrow category of state-created liberty
interests that:
      will generally be limited to freedom from restraint which, while
      not exceeding the sentence in such an unexpected manner as to
      give rise to protection by the Due Process Clause of its own force,
      nonetheless imposes atypical and significant hardship on the
      inmate in relation to the ordinary incidents of prison life.
Sandin v. Conner, 515 U.S. 472, 483–84 (1995).
      Plaintiffs argue that they have a liberty interest created by state law,
specifically § 99-19-51, and that it prevents the state from executing them
using any drugs other than “an ultra short-acting barbiturate or other similar
drug” as the first drug in a three-drug cocktail. However, even if the revised
lethal injection protocol does not conform to § 99-19-51, “a mere error of state
law is not a denial of due process.” Swarthout v. Cooke, 562 U.S. 216, 222 (2011)
(quoting Engle v. Isaac, 456 U.S. 107, 121 n.21 (1982)). Plaintiffs contend that
§ 99-19-51 creates a liberty interest because it places “substantive limitations
on official discretion.” Olim v. Wakinekona, 461 U.S. 238, 249 (1989); accord
Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 462 (1989); Hewitt v.

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Helms, 459 U.S. 460, 471 (1983) (state created liberty interest in prison
regulations characterized by “repeated use of explicitly mandatory language”).
The Supreme Court, however, later expressly rejected the “substantive
limitations” test used in Olim, Hewitt, and Thompson, reasoning that it
“create[d] disincentives for States to codify prison management procedures”
and “led to the involvement of federal courts in the day-to-day management of
prisons, often squandering judicial resources with little offsetting benefit to
anyone.” Sandin, 515 U.S. at 482; accord Wilkinson, 545 U.S. at 222–23
(recognizing Sandin’s rejection of the Hewitt–Olim standard). Instead, the
Court now relies on Sandin’s test to determine whether a state law or
procedure gives rise to a liberty interest, asking whether the state’s proposed
deviation from policy “imposes atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 483.
      Therefore, in order to establish a liberty interest arising from § 99-19-51,
Plaintiffs must show that execution with pentobarbital or midazolam would
“impose atypical and significant hardship” on them beyond the ordinary for
those facing execution. Sandin, 515 U.S. at 484. The Court has recognized such
hardship in a very small number of cases generally related to extensive solitary
confinement or imprisonment beyond the term permitted by state law. See, e.g.,
Wilkinson v. Austin, 545 U.S. 209 (2005) (prisoners had a liberty interest in
the state’s decision to confine them in a supermax facility with highly
restrictive solitary confinement conditions); Hicks v. Oklahoma, 447 U.S. 343
(1980) (prisoner had liberty interest in serving only ten years in prison rather
than the forty years he was sentenced to under a habitual offender statute
subsequently held to be unconstitutional); Vitek v. Jones, 445 U.S. 480, 491
(1980) (prisoner had liberty interest in remaining in prison rather than a
mental hospital); Washington v. Harper, 494 U.S. 210, 221 (1990) (prisoner had


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                                 No. 15-60604
liberty interest in avoiding involuntary administration of antipsychotic
medication).
      Here, however, Mississippi’s statutory requirements and the associated
lethal injection protocol are not “atypical … in relation to the ordinary” in
comparison with other states’ execution protocols. The three-drug protocol and
the particular drugs Mississippi proposes to use (midazolam, a paralytic, and
potassium chloride) are typical for those states that use lethal injection and
were recently upheld in the face of a constitutional challenge. Glossip v. Gross,
135 S. Ct. 2726, 2735 (2015) (describing Oklahoma’s three-drug lethal injection
protocol as midazolam, a paralytic, and potassium chloride). Because Plaintiffs
have failed to demonstrate Mississippi’s intent to “impose atypical and
significant hardship on the inmate in relation to the ordinary incidents of
prison life,” Sandin, 515 U.S. at 484, they have not established that the state’s
revised protocol invades a protected liberty interest.
      Even if § 99-19-51 were to create a liberty interest, the right it creates
would be subject only to procedural protection. State law is not a source of
liberty interests that are substantively protected by the Fourteenth
Amendment; rather, it gives rise to interests that are promised procedural
protections by the Fourteenth Amendment. Swarthout v. Cooke, 562 U.S. 216,
219 (2011) (“Whatever liberty interest exists is, of course, a state interest
created by California law. … [When] a State creates a liberty interest, the Due
Process Clause requires fair procedures for its vindication. … No opinion of
ours supports converting California’s ‘some evidence’ rule into a substantive
federal requirement.”); Wilkinson, 545 U.S. at 224–25 (holding state law gave
rise to a liberty interest and rejecting the suit after determining the state’s
procedures satisfied the procedural requirements of Mathews v. Eldridge, 424
U.S. 319 (1976)); Marsh v. County of San Diego, 680 F.3d 1148, 1155 (9th Cir.
2012) (“A state official’s failure to comply with state law that gives rise to a
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                                    No. 15-60604
liberty or property interest may amount to a procedural (rather than
substantive) due process violation.”).
      Our sister circuit has concluded that state post-conviction relief petitions
satisfy a prisoner’s right to seek proper enforcement of a state’s method-of-
execution law. Pavatt v. Jones, 627 F.3d 1336, 1341 (10th Cir. 2010). We agree.
Mississippi provides an adequate forum for the vindication of Plaintiffs’ rights
that arise from state law. Mississippi’s post-conviction relief statute explicitly
empowers prisoners to challenge their sentence as “imposed in violation of the
… Constitution or laws of Mississippi.” Miss. Code Ann. § 99-39-5(1). If
Plaintiffs wish to protest that Mississippi’s revised lethal injection protocol is
an unlawful deviation from Mississippi’s laws, Mississippi’s courts are the
appropriate venue for their suit.
                                             B.
      Plaintiffs also argue that Mississippi’s intention to execute them in a
manner other than that described by § 99-19-51 “shocks the conscience” and
that they are entitled to substantive enforcement of § 99-19-51 regardless of
the state post-conviction relief procedures available to them. This argument
sounds in substantive due process. According to the Supreme Court, “[t]he
touchstone of due process is protection of the individual against arbitrary
action of government.” County of Sacramento, 523 U.S. at 845. The Court has
held that executive action violates a citizen’s substantive due process rights
when the action “shocks the conscience.” Id. at 846. The Court’s test for the
substantive component of the due process clause prohibits “only the most
egregious official conduct,” id., and will rarely come into play. At the same time
that the Court announced the “shocks the conscience” test it counseled judges
against “drawing on our merely personal and private notions [to] disregard the
limits that bind judges in their judicial function.” Rochin v. California, 342
U.S. 165, 170–71 (1952).
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                                     No. 15-60604
        Plaintiffs base their substantive due process argument on Hicks v.
Oklahoma and its progeny and argue that execution under the revised protocol
“shocks the conscience.” County of Sacramento, 523 U.S. at 846. This argument
mixes    the    substantive   and    procedural prongs             of due process and
misunderstands Hicks. Hicks was convicted of heroin distribution, an offense
that carried a minimum sentence of ten years, but was sentenced to a
mandatory forty years in prison because of a state habitual offender statute.
Hicks, 447 U.S. at 344. After Hicks’s sentencing, the Oklahoma Court of
Criminal       Appeals    declared    the    state’s      habitual     offender    statute
unconstitutional. Id. Hicks challenged his sentence, asserting that it was
unconstitutionally imposed because the instructions given to his jury
(requiring a minimum sentence of forty years) were based on an
unconstitutional statute. Id. Hicks asserted that his sentencing itself was
unconstitutional; he did not assert—as Plaintiffs do—that the state intended
to carry out a constitutional sentence in an unconstitutional manner. Hicks
and its progeny are squarely focused on correcting the imposition of an
impermissible sentence at trial. Hicks, 557 U.S. at 346; Burge v. Butler 867
F.2d 247, 248–50 (5th Cir. 1989) (requiring resentencing for a prisoner
sentenced to life without parole under a sentencing statute passed after he had
committed his crimes). Hicks and Burge would be relevant if Plaintiffs argued
their death sentences were unlawful, but these cases provide no support for
Plaintiffs’ challenge to the proposed method of execution. Plaintiffs were
sentenced to death and it is a death sentence that Mississippi plans to impose.
                                                 III.
        Plaintiffs have not demonstrated a substantial likelihood of success on
the merits of their claims because they have not established a liberty interest
in the enforcement of § 99-19-51 and because they have not shown that


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                                       No. 15-60604
Mississippi’s alleged deviation § 99-1-51 would “shock the conscience.”
Therefore, the district court abused its discretion by granting an injunction. 5
       We VACATE the district court’s injunction and REMAND to the district
court for proceedings consistent with this opinion.




       5  The district court, having found Plaintiffs were likely to succeed on the merits,
concluded without analysis that they satisfied prongs three and four of the test for a
preliminary injunction. The Supreme Court requires that, in addition to considering
Plaintiffs interests in obtaining an injunction, we also consider the public’s interest in the
enforcement of state law and the validation of a jury verdict. Hill, 547 U.S. at 584 (“[A] stay
of execution is an equitable remedy. It is not available as a matter of right.”); See also Town
of Castle Rock v. Gonzales, 545 U.S. 748, 765 (2005) (“[t]he serving of public rather than
private ends is the normal course of the criminal law because criminal acts, ‘besides the
injury [they do] to individuals, … strike at the very being of society; which cannot possibly
subsist, where actions of this sort are suffered to escape with impunity.’” (quoting 4, William
Blackstone, Commentaries *5)). Because we conclude Plaintiffs have not shown a likelihood
of success on the merits, we need not determine whether the district court exceeded its
equitable power by failing to consider the public interests at stake. See Hill, 547 U.S. at 584
(“[E]quity must be sensitive to the State’s strong interest in enforcing its criminal judgments
without undue interference from the federal courts.”); Lewis v. Casey, 518 U.S. 343, 386
(1996) (Thomas, J., concurring) (emphasizing the state’s sovereign interest in overseeing the
state penal system).
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