                  Case: 12-16280         Date Filed: 12/11/2012   Page: 1 of 8



                                                                      [DO NOT PUBLISH]

                   IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                 ________________________

                                        No. 12-16280
                                    Non-Argument Calendar
                                  ________________________

                          D.C. Docket No. 3:12-cv-01328-TJC-JBT

MANUEL PARDO, JR.,

llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellant,

versus

JOHN PALMER,
in his official capacity as the Warden of Florida
State Prison,

KENNETH S. TUCKER,
in his official capacity as the Secretary, Florida
Department of Corrections,

DOES 1-50,
in their official capacities as Executioners for
the State of Florida,

llllllllllllllllllllllllllllllllllllllllDefendants - Appellees.
                                       ________________________

                         Appeal from the United States District Court
                             for the Middle District of Florida
                               ________________________

                                       (December 11, 2012)
              Case: 12-16280     Date Filed: 12/11/2012   Page: 2 of 8



Before DUBINA, Chief Judge, WILSON and MARTIN, Circuit Judges.

PER CURIAM:

      Appellant Manuel Pardo, Jr., is a death row prisoner scheduled to be

executed by the State of Florida on December 11, 2012. On December 6, 2012,

Pardo brought suit in federal district court, filing a complaint under 42 U.S.C. §

1983 and filing a motion for temporary restraining order, preliminary injunction,

and a stay of execution. Pardo contends that: (1) Florida’s three-drug lethal

injection protocol violates his right to be free from cruel and unusual punishment

under the Eighth Amendment; and (2) Appellees’ deviation from the core

components of the execution process set forth in the written protocol violates his

right to equal protection under the Fourteenth Amendment.

      Because we have recently addressed nearly identical claims in Ferguson v.

Warden, No. 12-15191, 2012 WL 4946112 (11th Cir. Oct. 18, 2012), the district

court specifically requested additional briefing on the issue of whether Pardo’s

case is in any way distinguishable from Ferguson. On December 10, 2012, after

an evidentiary hearing, the district court denied Pardo’s motion. Pardo v. Palmer,

No. 3:12-cv-1328, __ F. Supp.2d __ (M.D. Fla. Dec. 10, 2012). The district court

concluded that because Pardo failed to demonstrate that his claims were

distinguishable from the ones that we considered and rejected in Ferguson, he



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failed to demonstrate a substantial likelihood of success on the merits of his Eighth

and Fourteenth Amendment claims. Id. This appeal followed.

      “A stay of execution is equitable relief which this Court may grant only if

the moving party shows that: (1) he has a substantial likelihood of success on the

merits; (2) he will suffer irreparable injury unless the injunction issues; (3) the stay

would not substantially harm the other litigant; and (4) if issued, the injunction

would not be adverse to the public interest.” DeYoung v. Owens, 646 F.3d 1319,

1324 (11th Cir. 2011) (internal quotation marks omitted). “We review the denial

of a stay of execution under the abuse-of-discretion standard.” Powell v. Thomas

(Powell (Williams)), 641 F.3d 1255, 1257 (11th Cir. 2011) (per curiam), cert.

denied Williams v. Thomas, 131 S. Ct. 2487 (2011).

A. Substantial Likelihood of Success on the Merits

      Pardo’s constitutional arguments mirror those raised by Ferguson just two

months ago. Like Ferguson, Pardo argues that Florida’s lethal injection protocol

violates the Eighth and Fourteenth Amendments because (1) Florida’s September

4, 2012 protocol resulted in a substantial change to the execution protocol; (2)

evolving standards of decency show that the three-drug protocol creates an

“objectively intolerable risk of harm”; and (3) Florida’s implementation of its

three-drug protocol is flawed.




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    1. Eighth Amendment Violation

      In order for Pardo to prevail on his Eighth Amendment claim, he must

demonstrate that:

      (1) the State is being deliberately indifferent (2) to a condition that
      poses a substantial risk of serious harm to him. In the lethal injection
      context, this standard requires an inmate to show an objectively
      intolerable risk of harm that prevents prison officials from pleading
      that they were subjectively blameless for purposes of the Eighth
      Amendment.

DeYoung, 646 F.3d at 1325 (internal quotations marks and citations omitted). We

conclude that Pardo has not demonstrated a substantial likelihood of success on the

merits of his Eighth Amendment claim. As properly recognized by the district

court, we addressed the substantive merits of each of Pardo’s claims in Ferguson,

and squarely rejected them. See Ferguson, No. 12-15191, 2012 WL 4946112.

Pardo’s efforts to distinguish his case are not successful.

      Here, unlike Arthur v. Thomas, 674 F.3d 1257 (11th Cir. 2012) (per curiam),

the district court properly treated the question of whether a significant change has

occurred in Florida’s lethal injection protocol as a fact-dependent inquiry. Pardo

was granted an evidentiary hearing by the district court and an opportunity to

present witnesses to support his Eighth Amendment and Equal Protection claims,

as well as an opportunity to cross-examine the state’s witnesses regarding the

changes wrought by Florida’s September 4, 2012 lethal injection protocol. Based

on a review of the record, we are convinced that the district court correctly

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identified the governing legal principles, and then carefully considered Pardo’s

evidence and allegations with a fresh look.

      With regard to the statute of limitations, “[w]e have consistently held that a

method of execution claim accrues on the later of the date on which state review is

complete, or the date on which the capital litigant becomes subject to a new or

substantially changed execution protocol.” Ferguson, No. 12-15191, 2012 WL

4946112, at *2 (quoting McNair v. Allen, 515 F.3d 1168, 1174 (11th Cir. 2008)

(internal quotation marks omitted)). Because Pardo filed his “method of

execution” challenge outside of the running of the statute of limitations, and

because we have explicitly held that changes to the first and second drugs in the

three-drug sequence do “not constitute a substantial change,” see id. (citing Powell,

643 F.3d at 1304), Pardo’s claim comes too late.

      Pardo’s allegedly distinguishable contention that “the one-drug protocol is

now constitutionally required” is insufficient to differentiate this case from

Ferguson. We likewise addressed Ferguson’s “evolving standards of decency”

claim—which Pardo reiterates here—and found it lacking: “[a]lthough the one-

drug protocol is a feasible alternative that could be readily implemented, ‘a

condemned prisoner cannot successfully challenge a State’s method of execution

merely by showing a slightly or marginally safer alternative.’” See Ferguson, No.

12-15191, 2012 WL 4946112, at *3 (quoting Baze v. Rees, 553 U.S. 35, 51, 128 S.


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Ct. 1520, 1531 (2008)). Even if nine of our sister states have adopted a one-drug

protocol, it is not our role to transform ourselves into a “board[] of inquiry charged

with determining the ‘best practices’ for executions.” Baze, 553 U.S. at 51, 128 S.

Ct. at 1531.

       Moreover, as to the merits of Pardo’s claim, Dr. Heath’s expanded

declaration fails to add anything new to our inquiry, as his testimony presents

nothing more than mere speculation. As we stated in Ferguson, “speculation as to

the parade of horribles that could possibly occur during [an] execution does not

meet the burden of proof required by the Eighth Amendment.” Ferguson, No. 12-

15191, 2012 WL 4946112, at *2 (citing DeYoung, 646 F.3d at 1325).

Accordingly, because Pardo has failed to distinguish Ferguson on any ground, his

arguments, too, must fail.

    2. Fourteenth Amendment Violation

       Pardo also contends that he is likely to succeed on his claim under the Equal

Protection Clause because the State might deviate from the “core components of

the execution process” set forth in the written protocol. “To state an equal

protection claim, [Pardo] must show that the State will treat him disparately from

other similarly situated persons.” DeYoung, 646 F.3d at 1327 (citing Amnesty

Int’l. USA v. Battle, 559 F.3d 1170, 1180 (11th Cir. 2009)). “Second, ‘[i]f a law

treats individuals differently on the basis of . . . [a] suspect classification, or if the


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law impinges on a fundamental right, it is subject to strict scrutiny.’” Arthur, 674

F.3d at 1262 (alterations in original) (quoting Leib v. Hillsborough Cnty. Pub.

Transp. Comm’n, 558 F.3d 1301, 1306 (11th Cir. 2009)).

      Pardo fails to assert that any of the alleged deficiencies will result in

disparate treatment from other death row inmates. Ferguson raised this exact

claim, and nothing about the protocol has changed in the last two months. “Under

Florida’s 2012 protocol, all death row inmates facing execution will be subject to

the same sequence of drugs, the same procedures, and the same safeguards in the

execution process.” Ferguson, No. 12-15191, 2012 WL 4946112, at *3. As such,

Pardo has presented no evidence to substantiate his claim of disparate treatment.

B. Remaining Arguments

      Finally, Pardo avers that he will suffer irreparable harm if injunctive relief is

not granted. We need not decide whether Pardo has established irreparable injury

because he has failed to satisfy his burden regarding the substantial likelihood of

success on the merits. Likewise, Pardo’s arguments regarding the equities of

execution and the public interest are outside of our purview. Accordingly, Pardo’s

motion for temporary restraining order, preliminary injunction, and stay of

execution is denied, and the district court’s order is affirmed.




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    MOTION FOR TEMPORARY RESTRAINING ORDER,

PRELIMINARY INJUNCTION, AND STAY OF EXECUTION IS DENIED;

DISTRICT COURT’S ORDER IS AFFIRMED.




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