     Case: 11-60541   Document: 00512052692    Page: 1   Date Filed: 11/14/2012




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

                                                                FILED
                                                            November 14, 2012

                                No. 11-60541                   Lyle W. Cayce
                                                                    Clerk

ROGER THORSON,

                                         Plaintiff-Appellant

v.

CHRISTOPHER EPPS, Commissioner of the Mississippi
Department of Corrections; LAWRENCE KELLY,
Superintendent of the Mississippi State Penitentiary
at Parchman; ATTORNEY GENERAL JIM HOOD,

                                         Defendants-Appellees.


                Appeal from the United States District Court
                  for the Northern District of Mississippi


Before JONES, GARZA, and PRADO, Circuit Judges.
EDITH H. JONES, Circuit Judge:
      Roger Thorson (“Thorson”), an inmate on death row at the Mississippi
State Penitentiary in Parchman, Mississippi, challenges the district court’s
grant of summary judgment concerning his claim that Mississippi’s lethal
injection procedures violate his Eighth Amendment right to be free from cruel
and unusual punishment. Because Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520
(2008), precludes the remedy sought, we AFFIRM.
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                                  No. 11-60541

                                BACKGROUND
      Appellant Thorson brought a 42 U.S.C. § 1983 action to enjoin the use of
Mississippi’s current execution procedures against him. He contended that the
lack of specific instructions concerning some aspects of the protocol creates the
potential for an improperly anesthetized prisoner to experience the pain of the
lethal drugs while still conscious. The district court granted summary judgment
on two grounds. First, Thorson failed to exhaust his available remedies through
Mississippi’s Administrative Remedy Program (“ARP”), as required by the
Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a) (2006). Second,
ruling on the merits, the court held, inter alia, that even if some of Mississippi’s
lethal injection protocol relies on custom and practice, rather than written
documents, a lack of evidence linking the unwritten protocol to the requisite risk
of harm prevented it from being unconstitutional. Since Thorson’s claim failed
on the merits, the claim was dismissed with prejudice. Thorson timely appealed.
                           STANDARD OF REVIEW
      We review the district court’s grant of summary judgment de novo. See
Burge v. Parish of St. Tammany, 187 F.3d 452, 464 (5th Cir. 1999). Summary
judgment is appropriate when there is no genuine issue as to any material fact
and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a).
“A genuine issue of material fact exists if the evidence is such that a reasonable
jury could return a verdict for the non-moving party.” Paz v. Brush Engineered
Materials, Inc., 555 F.3d 383, 391 (5th Cir. 2009) (quoting Crawford v. Formosa
Plastics Corp., 234 F.3d 899, 902 (5th Cir. 2000)). The evidence in the record is
considered in a light most favorable to the non-moving party and all reasonable
inferences are drawn in favor of the non-moving party. Id.




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                                        No. 11-60541

                                       DISCUSSION
I.     Failure to Exhaust.
       Thorson acknowledges that he failed first to assert this claim in the
prison’s administrative process as required by the PLRA.                       See Nelson v.
Campbell, 541 U.S. 637, 650, 124 S. Ct. 2117, 2126 (2004) (noting that § 1983
claims concerning a state’s execution procedures must be exhausted using state
administrative remedies pursuant to the PLRA); White v. Johnson, 429 F.3d 572,
574 n.1 (5th Cir. 2005). Thorson asserts various excuses for his default, none of
which are compelling under current case law. In both the district court and this
court, the state has consistently urged the “mandatory” nature of the PLRA’s
exhaustion requirement. Woodford v. Ngo, 548 U.S. 81, 85, 126 S. Ct. 2378, 2382
(2006).    The district court’s summary judgment ruling acknowledged and
affirmed the exhaustion requirement.
       Nevertheless, the court also ruled on the merits of Thorson’s claim because
the state sought summary judgment on the merits in a motion fully briefed and
supported by evidence. The court had originally denied the state’s motion but
reconsidered after giving the plaintiff an opportunity for discovery and
submission of his evidence. On appeal as its principal argument, the state urges
this court to affirm the district court’s merits decision.
       Under these circumstances, where the only issue presented to the court is
a clearly focused § 1983 constitutional claim, where the state moved for
summary judgment on the merits1 (in addition to invoking PLRA exhaustion),
where the parties engaged in discovery, and where the purposes of PLRA
exhaustion would be confounded by requiring administrative exhaustion at this


       1
          We recognize that a district court is expressly authorized to dismiss a prisoner’s
§ 1983 claim before service of process on the defendants (and without exhaustion of remedies)
if the claim is “frivolous, malicious, fails to state a claim upon which relief can be granted, or
seeks monetary relief from a defendant who is immune from such relief.”
42 U.S.C. § 1997e(c) (2006).

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                                       No. 11-60541

stage, we will rule on the merits. In regard to the last point, the Supreme Court
has articulated three goals of administrative exhaustion: protecting the state
agency’s authority; promoting efficiency in the resolution of prisoner claims; and
generating a helpful record for judicial review. Woodford, 548 U.S. at 89,
126 S. Ct. at 2385 (citing McCarthy v. Madigan, 503 U.S. 140, 145, 112 S. Ct.
1081, 1086 (1992)). Because the state opted to invoke the court’s processes here,
and because we agree that Thorson presented no genuine issue of material fact,
no purpose is served by pursuing exhaustion. This court can affirm summary
judgment on any basis that was presented to and considered by the district
court. FDIC v. Laguarta, 939 F.2d 1231, 1240 (5th Cir. 1991).
II.    Mississippi’s Lethal Injection Procedures.
       This suit is strikingly similar to previous § 1983 challenges to capital
punishment protocols. The standard for these cases is Baze. Starting from the
principle that capital punishment is constitutional and, therefore, must be
workable, the Supreme Court held that the Eighth Amendment does not prohibit
“the possibility of pain” but rather “wanton exposure [of the condemned] to
‘objectively intolerable risk.’” Baze, 553 U.S. at 61–62, 128 S. Ct. at 1537
(quoting Farmer v. Brennan, 511 U.S. 825, 846 & n.9, 114 S. Ct. 1970, 1983
(1994)). The petitioners there claimed a significant risk existed that Kentucky’s
death penalty procedures would not be followed. The Court clarified that, “to
prevail on such a claim there must be a ‘substantial risk of serious harm,’ an
‘objectively intolerable risk of harm’ that prevents prison officials from pleading
that they were ‘subjectively blameless for purposes of the Eighth Amendment.’”
Id. at 50, 1531 (quoting Farmer, 511 U.S. at 842, 846 & n.9, 114 S. Ct. at 1981,
1983). The nature of a § 1983 claim thus forces the prisoner to show more than
just the potential for something to go wrong.2

       2
        “Simply because an execution method may result in pain, either by accident or as an
inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of

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                                      No. 11-60541

       Baze was not meant to be a blueprint; it was meant to set out flexible
parameters for handling executions. See id. at 48–49, 1530; see also Raby v.
Livingston, 600 F.3d 552, 560 (5th Cir. 2010) (“Raby misreads Baze when he
suggests that it could only foreclose relief here if the lethal injection practices
actually implemented in Kentucky and Texas were identical in all respects.”).
In the instant case, Mississippi’s protocol fits comfortably within these
parameters because there is no objectively intolerable risk of harm.                    The
Mississippi Department of Correction (“MDOC”) employs a method of execution
substantially similar to that used in Kentucky and to the Texas protocol this
court approved in Raby. Mississippi’s written instructions detail virtually every
step related to an execution. Those steps not written are systematically ensured
by conscientious training, repeated practice runs, and the experience of the
participants relied on by the prison.            Because Mississippi implements its
procedure in substantially the same manner as Kentucky and Texas,3 any
unwritten aspects of the protocol are of no constitutional moment here.
       Thorson nevertheless contends that Mississippi’s protocol could result in
cruel and unusual punishment. Specifically, it is argued that the lethal injection
protocol does not expressly require medical training for members of the
execution team; there is no contingency plan for problematic IV access; sedation
of the prisoner is inadequately monitored; there is no description of drug
administration after IV placement; the protocol deviates from acceptable
anesthesiology standards; and potential drug interaction issues are not
addressed. These alleged inadequacies, Thorson contends, open the door to an
Eighth Amendment violation. Mere conjecture, though, does not qualify as an



harm’ that qualifies as cruel and unusual.” Baze, 553 U.S. at 50, 128 S. Ct. at 1531.
       3
        Though Texas recently adopted a one drug protocol—also acceptable under the flexible
Baze standard—the method at issue here exactly parallels the one cleared for use in Raby.

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                                      No. 11-60541

objectively intolerable risk, and an examination of the facts nullifies these
concerns. The record—including Mississippi’s written protocol, and affidavits
from the Superintendent of the prison and his Deputy, who have attended each
execution in Mississippi during the past decade—shows a degree of training and
familiarity with the process that militates against a successful § 1983 claim.
       To begin, even absent a written instruction that IV’s must be placed and
the injections administered by medical professionals, Mississippi takes the
precautionary step of using highly trained paramedics.                  Given the State’s
incentive to carry out executions efficiently and without incident, it is
unsurprising that the practice is to employ only trained professionals to
administer the drugs—even though it is not required by either the Constitution
or Fifth Circuit precedent.4 This expertise also answers Thorson’s argument
concerning a lack of contingency plans for problematic IV placement. Trained
professionals know how to establish reliable ports for intravenous fluids, and the
pain worried about here is not the multiple attempts that could be necessary to
find a proper vein. As in Raby, Thorson fails to “show a connection between the
difficulty in initially establishing the IV and the risk that the first drug will not
be administered properly.” Raby, 600 F.3d at 558. In the event that such
placement is actually impossible, the other steps of the protocol leading up to
execution could not be fulfilled. Because this would shut down the process
altogether,     the    argument      that    Mississippi      must     have    a    detailed
“Plan B”—whatever that might be—is groundless, and purely hypothetical.
       Raby goes further in answering the other issues asserted here. Under
Texas guidelines, the warden stands near the prisoner to monitor consciousness
after the delivery of the sodium thiopental. This court held that, based on Baze,
such “lay-monitoring” was not insufficient; no medical equipment or anything


       4
        See Kelly v. Lynaugh, 862 F.2d 1126, 1135 (5th Cir. 1988) (rejecting the argument that
the lethal injection is cruel and unusual when administered by an unqualified person).

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                                  No. 11-60541

beyond a visual monitoring is necessary. Id. at 559 (“Baze forecloses a holding
that any type of additional observation (i.e., EKG, eyelash testing, pinching) is
required by the Constitution.”). Following that precedent, Thorson’s inadequate
monitoring claim is also defeated.
      Finally, the argument that MDOC’s protocol does not conform to
anesthesiology standards is merely a covert criticism of nationwide execution
protocols and is without merit as well. It is irrelevant that the anesthesia
amount in this case (2.0 grams of sodium thiopental) does not exactly match the
protocol in Baze (3.0 grams). Mississippi’s amount is, in fact, five to eight times
the dosage required. This extreme dosage also precludes the possibility of an
adverse drug interaction—yet the state makes inquiries into this as well. The
steps taken by the State are thus reasonably calculated to achieve its goal.
There is no evidence that forcing Mississippi to copy Kentucky exactly would
“significantly reduce a substantial risk of severe pain.” Baze, 553 U.S. at 52,
128 S. Ct. at 1532 (emphases added). Again, Baze was not meant to be a
blueprint of the only sanctioned lethal injection protocol and should not be read
as such.
      Mississippi’s written protocol lists the drugs and amounts to be
administered as well as the order in which each syringe is to be administered.
The Chronological Record of Execution clearly lists the steps to be taken,
including an injection of normal saline between each drug in order to flush the
line. This detailed program, rehearsed multiple times prior to each execution,
evidences a procedure that, in fact, is essentially the same as that of Texas
(Raby) and Kentucky (Baze) and that reduces the serious risk of harm that could
be suffered by a condemned prisoner.
      Mississippi has chosen, by both method of execution and the procedure for
administration of the lethal injections, to alleviate cruelty and reduce “harm” in
capital punishment. “Given what our cases have said about the nature of the

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                                  No. 11-60541

risk of harm that is actionable under the Eighth Amendment, a condemned
prisoner cannot successfully challenge a State’s method of execution merely by
showing a slightly or marginally safer alternative.” Baze, 553 U.S. at 51,
128 S. Ct. at 1531.
      An additional, salient comparison with Raby must be noted. In that case,
Raby attempted, unsuccessfully, to prove the inadequacy of Texas’s lethal
injection protocol with evidence of alleged errors during executions that had been
carried out under the protocol. Here, Thorson offered no evidence of any
instance of maladministration or suffering during any of more than a dozen
executions conducted in Mississippi under the protocol he attacks. Yet such
evidence, if it existed, would have been readily accessible through eyewitness
accounts. Thorson’s theoretical complaint necessarily fails under Raby.
      Thorson’s ultimate argument is that Mississippi’s failure to dictate every
execution detail in writing could cause a constitutional problem. This misses the
point. He has adduced no evidence that requiring the State to expound further
on what is already written, along with what is already being done, will “in fact
significantly reduce a substantial risk of severe pain.” Baze, 553 U.S. at 52,
128 S. Ct. at 1532.     Furthermore, nothing in the record points toward a
substantial risk of serious harm by the MDOC in carrying out executions; mere
speculation cannot rise to the level of an objectively intolerable risk.
                                CONCLUSION
      For these reasons, the district court’s summary judgment is AFFIRMED.




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