     Case: 16-20556   Document: 00513674220     Page: 1   Date Filed: 09/12/2016




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

                                                                        FILED
                                 No. 16-20556                     September 12, 2016
                                                                     Lyle W. Cayce
                                                                          Clerk
JEFFERY WOOD; ROLANDO RUIZ; ROBERT JENNINGS; TERRY
EDWARDS; and RAMIRO GONZALES,

             Plaintiffs - Appellants

v.

BRYAN COLLIER, Executive Director, Texas Department of Criminal
Justice; LORIE DAVIS, Director, Correctional Institutions Division, Texas
Department of Criminal Justice; JAMES JONES, Senior Warden; and
UNKNOWN EXECUTIONERS,

             Defendants - Appellees




                Appeal from the United States District Court
                     for the Southern District of Texas


Before HIGGINBOTHAM, DENNIS, and ELROD, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      In 2012, Texas adopted its current execution protocol: a single, five-gram
dose of pentobarbital to induce death. Five men convicted of murder and
sentenced to die by lethal injection ask this Court to stay their impending
executions based on an earlier and separate case between Texas and two death
row prisoners. Three of the five received stays from the Texas Court of
Criminal Appeals on state habeas petitions presenting claims not at issue here.
The remaining two argue that Texas is obliged by the Eighth Amendment’s
    Case: 16-20556    Document: 00513674220     Page: 2   Date Filed: 09/12/2016


                                 No 16-20556

prohibition on cruel and unusual            punishment and     the Fourteenth
Amendment’s guarantee of equal protection under the law to re-test the
execution drug to assure it does not present a high risk of unnecessary pain.
We are not persuaded these prisoners have made the showing required for a
stay pending appeal and DENY their motion for a stay of execution.
                                       I.
                                       A.
      Appellants filed this 42 U.S.C. § 1983 civil suit on August 12, 2016 in the
United States District Court for the Southern District of Texas, alleging
violations of the First, Eighth, and Fourteenth Amendments, and sought a
preliminary injunction that would have granted the ultimate relief requested
in the complaint. They asserted that: (1) Texas’s use of compounded
pentobarbital absent re-testing shortly before execution violates the Eighth
and Fourteenth Amendments by creating a substantial risk of severe pain; (2)
Texas’s refusal to disclose elements of its execution protocol violated
Appellants’ First, Eighth, and Fourteenth Amendment rights to be free from
cruel and unusual punishment, due process, notice, an opportunity to be heard,
and access to the courts; (3) voluntary re-testing of the pentobarbital that will
be used to execute plaintiffs in another suit created a constitutional right to
such re-testing for all prisoners; and (4) the lack of a requirement that Texas
notify the Appellants of any changes to the drugs or to the lethal injection
protocol that will be used to carry out their sentences impairs protection of
their right to be free from cruel and unusual punishment and to due process
under the Eighth and Fourteenth amendments.
      The State moved to dismiss the complaint on August 15, 2016, arguing
that all except the equal protection claim were time-barred and all claims
failed as a matter of law. At a hearing the following day, the district court


                                            2
    Case: 16-20556      Document: 00513674220      Page: 3    Date Filed: 09/12/2016


                                    No 16-20556

denied the request for a preliminary injunction and dismissed the complaint
for failure to state a claim. The next day the district court denied a stay
pending appeal.
                                         B.
      The prisoners’ suit now before us presents as the latest in a series of
cases targeting capital punishment. In the recent case before this court of
Jordan v. Fisher, a group of Mississippi death row inmates challenged that
state’s use of pentobarbital as the first drug in a so-called “three-drug
cocktail.” 1 There, the Jordan prisoners complained to the district court that
pentobarbital was not a sufficiently fast acting barbiturate to guarantee
anesthetization prior to the introduction of vecuronium bromide and
potassium chloride, urging as the alternative a single, lethal dose of a
barbiturate.
      Since 2012 the State of Texas has done just that—execution via a single-
drug protocol utilizing a five-gram dose of pentobarbital. Texas originally used
pentobarbital purchased from a pharmaceutical firm in its executions.
However in 2011, Lundbeck, the Danish pharmaceutical firm that produces
manufactured pentobarbital, refused to supply the drug to states that execute
by lethal injection. 2 In response, in September 2013, Texas began purchasing
pentobarbital compounded by pharmacies. 3 Texas alleges, and Appellants do
not dispute, that Texas has used compounded pentobarbital to execute thirty-
two prisoners since 2013 without issue. Even so, Appellants’ primary
contention is that Texas’s use of compounded pentobarbital creates significant


      1 823 F.3d 805 (5th Cir. 2016).
      2 Josh Sanburn, The Hidden Hand Squeezing Texas’ Supply of Execution Drugs, TIME
(August 7, 2013), http://nation.time.com/2013/08/07/the-hidden-hand-squeezing-texas-
supply-of-execution-drugs/.
       3 In an effort to protect its suppliers, Texas does not disclose its sources of

pentobarbital.
                                              3
     Case: 16-20556        Document: 00513674220          Page: 4     Date Filed: 09/12/2016


                                        No 16-20556

risks of unnecessary pain, and thus the state should be compelled to re-test the
drug shortly before execution.
                                              II.
                                               A.
       Appellants request a stay of execution pending review in this Court of
the district court’s dismissal of their suit and denial of a stay pending appeal.
A stay of execution is an equitable remedy that is not available as a matter of
right. 4 In determining whether to grant a stay pending appeal, this Court
weighs:
       (1) whether the stay applicant has made a strong showing that he
       is likely to succeed on the merits; (2) whether the applicant will be
       irreparably injured absent a stay; (3) whether issuance of a stay
       will substantially injure the other parties interested in the
       proceeding; and (4) where the public interest lies. 5
                                                B.
       “[B]ecause it is settled that capital punishment is constitutional, ‘[i]t
necessarily follows that there must be a [constitutional] means of carrying it
out.’” 6 The Court has repeatedly held that lethal injection is a permissible
method of execution. 7 While the Eighth Amendment does not require that


       4  Hill v. McDonough, 547 U.S. 573, 584 (2006).
       5  Nken v. Holder, 556 U.S. 418, 426 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770,
776 (1987)). See also Battaglia v. Stephens, 824 F.3d 470, 475 (5th Cir. 2016). In assessing
these factors, while not dispositive, “[i]n a capital case, the possibility of irreparable injury
weighs heavily in the movant’s favor.” O’Bryan v. Estelle, 691 F.2d 706, 708 (5th Cir. 1982).
        6 Glossip v. Gross, 135 S. Ct. 2726, 2732–33 (quoting Baze v. Rees, 553 U.S. 35, 47

(2008) (plurality)). See also Sepulvado v. Jindal, 729 F.3d 413, 417 (5th Cir. 2013).
        7 See Glossip, 135 S. Ct. at 2739–40 (approving of Oklahoma’s three-drug lethal

injection protocol); see also Baze, 553 U.S. at 54–56 (plurality) (approving of Kentucky’s three-
drug lethal injection protocol). While Glossip and Baze both dealt with three-drug execution
protocols, this Court has held that “‘a one drug protocol [is] also acceptable under the flexible
Baze standard . . . .” Sepulvado, 729 F.3d at 417 (quoting Thorson v. Epps [Thorson II], 701
F.3d 444, 447 n.3 (5th Cir. 2012)).
                                                    4
     Case: 16-20556       Document: 00513674220         Page: 5    Date Filed: 09/12/2016


                                      No 16-20556

execution be painless, 8 it does prohibit “serious illness and needless suffering”
where there exists an alternative that is “feasible, readily implemented, and
in fact significantly reduce[s] a substantial risk of severe pain.” 9                   The
Amendment secures a right to be free from methods of execution that create “a
risk that is sure or very likely to cause serious illness and needless suffering,
and give rise to sufficiently imminent dangers.” 10 Stated differently, “there
must be a substantial risk of serious harm, an objectively intolerable risk of
harm that prevents prison officials from pleading they were subjectively
blameless for purposes of the Eighth Amendment.” 11
                                             C.
       The Equal Protection Clause of the Fourteenth Amendment is
“essentially a direction that all persons similarly situated should be treated
alike.” 12 Its basics are rote: “[e]qual protection does not require that all persons
be dealt with identically, but it does require that a distinction made have some
relevance to the purpose for which the classification is made.” 13 In assessing
an equal protection claim, “[s]trict scrutiny is appropriate only where a
government classification implicates a suspect class or a fundamental right.” 14
“In cases that do not implicate suspect classes or fundamental rights, ‘[t]he
appropriate standard of review is whether the difference in treatment between
[classes] rationally furthers a legitimate state interest.’” 15 “Under rational
basis review, differential treatment must be upheld against equal protection


       8 Glossip, 135 S. Ct. at 2733.
       9 Id. at 2737 (quoting Baze, 553 U.S. at 50, 52).
       10 Glossip, 135 S. Ct. at 2737 (citations omitted) (internal quotation marks omitted).
       11 Id. (quoting Baze, 553 U.S. at 50) (internal quotation marks omitted).
       12 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).
       13 Baxstrom v. Herald, 383 U.S. 107, 111 (1966).
       14 Gallegos-Hernandez v. United States, 688 F.3d 190, 195 (5th Cir. 2012) (quoting

Rublee v. Fleming, 160 F.3d 213, 217 (5th Cir. 1998)).
       15 Harris v. Hahn, No. 15-20105, 2016 WL 3457616, at *4 (5th Cir. June 23, 2016)

(alterations in original) (quoting Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)).
                                                  5
     Case: 16-20556      Document: 00513674220        Page: 6     Date Filed: 09/12/2016


                                      No 16-20556

challenge if there is any reasonably conceivable state of facts that could provide
a rational basis for the classification.” 16
       An equal protection claim that is premised on differential treatment but
not based on membership in a suspect class or the infringement of a
fundamental right may be cognizable as a so-called “class of one.” 17 “We review
such claims under a two-prong test: the plaintiff must show that (1) he or she
was intentionally treated differently from others similarly situated and (2)
there was no rational basis for the difference in treatment.” 18
                                           III.
         Each of these men was sentenced to death over a decade ago—two more
than twenty years ago—and each has known he will be executed using
compounded pentobarbital since at least 2013. In moving for a stay, the
prisoners assert only their equal protection claim; other claims in the
complaint are not before us.
                                            A.
       The first requirement for a stay of execution is “a strong showing that
[the movant] is likely to succeed on the merits.” 19 We examine the alleged
errors of the district court for a substantial likelihood of success before this
Court.
                                            i.
       The prisoners first argue that the Eighth Amendment right to be free
from cruel and unusual punishment is burdened by Texas’s denial of re-testing
shortly before execution. They urge that the district court erred by evaluating


       16Hines v. Aldridge, 783 F.3d 197, 202–03 (5th Cir. 2015) (internal quotation marks
omitted) (quoting Madriz-Alvarado v. Ashcroft, 383 F.3d 321, 332 (5th Cir. 2004)).
      17 Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
      18 Lindquist v. City of Pasadena, 669 F.3d 225, 233 (2012) (citing Olech, 528 U.S. at

564).
      19 Nken, 556 U.S. at 426.


                                                  6
      Case: 16-20556      Document: 00513674220         Page: 7    Date Filed: 09/12/2016


                                      No 16-20556

their claim under rational basis review; that the correct standard of review is
strict scrutiny, with a shift of the burden to the State to demonstrate that its
classification was narrowly tailored to achieve a compelling government
interest.
       This argument relies on the contention that Texas’s decision to re-test
the pentobarbital in the Whitaker 20 case and not here denies them equal
protection. In Whitaker, the plaintiffs, as here, alleged that Texas does not
provide all of the procedural safeguards they believed necessary for the use of
compounded pentobarbital. While all agreed that Texas’s decision to re-test
mooted the case, 21 the district court dismissed the suit for other reasons. 22 The
prisoners’ primary contention now is that re-testing in Whitaker created a right
to re-testing for all prisoners, a novel and flawed invocation of equal protection
doctrine.
       The Eighth Amendment guarantees a right to be free from methods of
execution that present a substantial risk of unnecessary pain. That right is
enjoyed by all persons. It rests on text, not on episodic differential treatment.
In Glossip, the Court held that a method of execution does not violate the
Eighth Amendment unless it “presents a risk that is sure or very likely to cause
serious illness and needless suffering, and give rise to sufficiently imminent
dangers.” 23 The Court held that, to qualify for a stay of execution, plaintiffs
must demonstrate “that the State’s lethal injection protocol creates a
demonstrated risk of severe pain.” 24 These are substantial hurdles, necessarily
so.


       20 Whitaker v. Livingston, Civil Action H-13-2901, 2016 WL 3199532 (S.D. Tex. June
6, 2016), appeal filed.
       21 Id. at *4.
       22 Id. at *9.
       23 Glossip, 135 S. Ct. at 2737 (citations omitted) (internal quotation marks omitted).
       24 Id. (citing Baze, 553 U.S. at 61).


                                                 7
     Case: 16-20556       Document: 00513674220          Page: 8     Date Filed: 09/12/2016


                                       No 16-20556

       Appellants assert that there is a risk that the drug might fail, and thus
re-testing for one and not another impinges upon the Eighth Amendment. That
said, under Glossip, the prisoners must establish that not re-testing the drug
presents a sure or very likely risk of pain.
       The reality is that pentobarbital, when used as the sole drug in a single-
drug protocol, has realized no such risk. The prisoners cannot avoid the facts
that: (1) the district court found that at least thirty-two executions in Texas
have utilized the single-drug compounded pentobarbital protocol without
incident 25 and, (2) when pentobarbital is the sole drug used to execute,
unconsciousness necessarily precedes death, 26 effectively obviating the
problem of conscious pain and suffering that was oft cited as a risk of the
“three-drug cocktail.” Rather, relying on conjecture regarding the drugs’
beyond-use dates and compounding, the prisoners urge only that “[t]esting the
compounded pentobarbital shortly before its use ensures the prisoner will not
suffer severe pain. . . .” But this assertion fails to reach the Eighth Amendment
bar on unnecessarily severe pain that is sure, very likely, and imminent. The
effort to draw upon equal protection works no change in the reach of the Eighth
Amendment.
       However one kneads the protean language of equal protection
jurisprudence, the inescapable reality is that these prisoners have not
demonstrated that a failure to retest brings the risk of unnecessary pain
forbidden by the Eighth Amendment. Attempting to bridge this shortfall in



       25Whitaker,  2016 WL 3199532, at *1. The widely represented figure is 80 plus
executions nationwide using pentobarbital as the sole drug.
       26 We are pointed to no contrary views. The prisoners aver that, because the drug is

produced by compounding pharmacies, it could be contaminated or perhaps be some drug
other than pentobarbital. This argument does not close the distance between a mere
possibility and a sure or very likely risk that contamination will occur and will bring extreme
pain.
                                                  8
     Case: 16-20556       Document: 00513674220          Page: 9     Date Filed: 09/12/2016


                                       No 16-20556

their submission with equal protection language, while creative, brings an
argument that is ultimately no more than word play.
                                              ii.
       The prisoners do not allege membership in a protected class, and despite
efforts to reframe the issues, 27 their claims present at bar as a futile effort to
assert a “class of one.”
       Typically, a class of one involves a discrete group of people, who do not
themselves qualify as a suspect class, alleging the government has singled
them out for differential treatment absent a rational reason. Olech involved
just those facts, with a municipality demanding a 33-foot easement from the
plaintiff where it required only a 15-foot easement from other similarly
situated property owners. 28 Here, the prisoners allege that the Whitaker
plaintiffs were singled out to receive a benefit denied to them, turning the
Olech analysis on its head.
       That problem aside, in Engquist, the Court discussed “forms of state
action . . . which by their nature involve discretionary decisionmaking based
on a vast array of subjective, individualized assessments.” 29 Engquist dealt
with a government employee who brought a class of one claim alleging that her
termination violated the Equal Protection Clause. 30 At trial, the jury returned
a verdict for the plaintiff. 31 The Ninth Circuit reversed, and the Supreme Court
affirmed the Ninth Circuit’s reversal, holding that “ratifying a class-of-one




       27 Appellants contend in their motion that they are not bringing a “class of one” claim.
However Appellants assert that, even under rational basis, their claim succeeds. For this
reason, and because it received considerable attention in the district court, we examine
Appellants’ claim for likelihood of success under the “class of one” framework.
       28 Olech, 528 U.S. at 565.
       29 Engquist v. Oregon Dept. of Agr., 553 U.S. 591, 603 (2008).
       30 Id. at 595.
       31 Id. at 596.


                                                    9
    Case: 16-20556       Document: 00513674220           Page: 10    Date Filed: 09/12/2016


                                       No 16-20556

theory of equal protection in the context of public employment would
impermissibly constitutionalize the employee grievance.’” 32
       The Court recognized that, in the core areas of equal protection,
governmental discretion could be used as a cover for impermissible
discrimination. 33 But here, “treating like individuals differently is an accepted
consequence of the discretion granted,” and allowing equal protection claims
on such grounds “would be incompatible with the discretion inherent in the
challenged action.” 34 The strategic decision of the State of Texas to re-test in
one case, in the context of an ever-changing array of suits attacking its use of
capital punishment from all angles, is within the discretion inherent in the
challenge made here.
       The district court held that the Engquist exception to class of one claims
controls regarding decisions made, here and in Whitaker, by Texas as a
litigant; that, as a matter of law, Appellants’ equal protection claim fails as a
class of one claim. We agree.
                                             iii.
       The prisoners’ final contention in support of a stay is that the district
court erred in two ways when granting the State’s motion to dismiss:
procedurally by applying the wrong pleading standard and substantively by
dismissing a complaint that “adequately plead an equal protection violation.”
They argue that the district court “repeatedly challenged Appellants’
allegations and factual support” instead of applying the correct standard,


       32 Id. at 609 (quoting Connick v. Myers, 461 U.S. 138, 154 (1983)).
       33 “Of course, an allegation that speeding tickets are given out on the basis of race or
sex would state an equal protection claim, because such discriminatory classifications
implicate basic equal protection concerns. But allowing an equal protection claim on the
ground that a ticket was given to one person and not others, even if for no discernible or
articulable reason, would be incompatible with the discretion inherent in the challenged
action.” Engquist, 553 U.S. at 604.
       34 Id. at 604.


                                                    10
    Case: 16-20556       Document: 00513674220        Page: 11     Date Filed: 09/12/2016


                                      No 16-20556

under Twombly and Iqbal, which accepts factual allegations in the complaint
as true and evaluates the complaint for plausibility. 35 The prisoners relied
upon two affidavits of proffered expert opinion in support of their motion for a
preliminary injunction and then their request for a stay. The district court
dispatched them as “junk science.” That aside, the affidavits do not themselves
move beyond speculation and do not confront the success of pentobarbital as
the sole-drug used to execute.
       As we earlier explained, the district court found that counts one, two,
and four in the complaint are time barred, and that holding is not challenged.
Count three, the equal protection claim, fails as a matter of law for the reasons
we have stated here—essentially the same reasons offered by the district court.
Accepting the facts as pled, all claims still fail. Any error committed is
harmless.
                                            B.
       Again, of course, “[i]n a capital case, the possibility of irreparable injury
weighs heavily in the movant’s favor.” 36 The prisoners argue the injury they
will face is the possibility of severe pain during their executions, but they do
not demonstrate that they are nigh sure to suffer unnecessary pain. Texas, on
the other hand, proffers that compounded pentobarbital has been used in
thirty-two executions in the state without issue. 37 We cannot say that
Appellants have demonstrated that they are likely to suffer an irreparable
injury absent a stay.




       35See Ashcroft v. Iqbal, 556 U.S. 662, 677–84 (2009); Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007); see also Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009).
      36 O’Bryan, 691 F.2d at 708.
      37 Whitaker, 2016 WL 3199532, at *1.


                                                 11
   Case: 16-20556    Document: 00513674220       Page: 12   Date Filed: 09/12/2016


                                No 16-20556

                                       C.
     Texas has a strong interest in enforcing the judgments of its courts in
criminal cases, but the public interest writ large takes no sides here. The
finality of a death sentence and, with it, the inherent risk of uncertainty
demand diligent effort by all. These prisoners have enjoyed that effort—with
two of them residing on death row in excess of twenty years. That reality may
give pause to the entire enterprise, but does not bespeak neglect of bench and
bar. To these eyes, a system that leaves persons on death row for over two
decades more surely taxes the Eighth Amendment’s prohibition of undue
suffering than does the elusive search for minimum pain for those brief
moments of passage across the river.
      Appellants do not contest their convictions or their sentences. Instead
they argue that the Eighth and Fourteenth Amendments require the State of
Texas to re-test the pentobarbital that will be used to execute them. The
district court determined that Appellants’ claims are meritless. Appellants
have not made the requisite showing that would justify a stay pending appeal.
Appellants’ motion for a stay is DENIED.


Concurrence:
JAMES L. DENNIS, Circuit Judge, concurs in denying the motion for a stay.




                                            12
