Jordan v. Fisher, 823 F.3d 805

Background

Three Mississippi death-row inmates (Jordan, Chase, Loden) sued under 42 U.S.C. § 1983 to enjoin the state from executing them using compounded pentobarbital or midazolam under the revised lethal-injection protocol.
Mississippi law requires execution by “continuous intravenous administration of an ultra short-acting barbiturate or other similar drug in combination with a chemical paralytic agent.”
The district court issued a broad preliminary injunction barring Mississippi from using pentobarbital (in compounded form) or midazolam and required court approval of any alternative protocol.
Mississippi appealed; plaintiffs also raised Eighth Amendment, notice, and access-to-courts claims that the district court had not resolved.
The Fifth Circuit reviewed whether plaintiffs demonstrated a substantial likelihood of success for the injunction, focusing on sovereign-immunity limits for federal enforcement of state law and both procedural and substantive Fourteenth Amendment due process theories.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Can federal courts enjoin state officials to enforce state execution statute?	Plaintiffs sought federal enforcement of Miss. Code § 99-19-51 to bar pentobarbital/midazolam.	Mississippi invoked sovereign immunity and Ex parte Young limits.	Sovereign immunity bars federal injunctions solely to enforce state law; plaintiffs must show a federal right to enforce § 99-19-51.
Procedural due process — does § 99-19-51 create a protected liberty interest?	§ 99-19-51 creates a state-law liberty interest entitling plaintiffs to federal protection.	Any state-law interest is procedural only and can be vindicated in state post-conviction proceedings; Sandin controls.	Plaintiffs failed to show an atypical, significant hardship under Sandin; no protected liberty interest warranting federal relief.
Substantive due process — does the revised protocol “shock the conscience”?	Executing under the revised protocol (compounded drugs/midazolam) is arbitrary/egregious and shocks the conscience.	The complaint targets execution method, not an unlawful sentence; Hicks and similar cases do not apply; courts should be cautious in invoking substantive due process.	Plaintiffs did not show conduct so egregious as to shock the conscience; Hicks is inapposite.
Preliminary injunction equity factors/public interest	Plaintiffs argued irreparable harm and likelihood of success justify broad injunction.	State emphasized sovereign interests in enforcing criminal judgments and public interest.	Because plaintiffs failed the likelihood-of-success prong, the injunction was vacated; court noted public-interest considerations weigh against undue federal interference.

Key Cases Cited

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (federal courts may not enjoin state officials to conform conduct to state law)
Sandin v. Conner, 515 U.S. 472 (state-created liberty interests are limited; atypical and significant hardship test)
Swarthout v. Cooke, 562 U.S. 216 (mere state-law error does not constitute federal due process violation)
County of Sacramento v. Lewis, 523 U.S. 833 (substantive due process requires conduct that "shocks the conscience")
Ex parte Young, 209 U.S. 123 (prospective suits against state officers for enforcement of federal law may proceed)
Glossip v. Gross, 576 U.S. 863 (upholding certain three-drug lethal-injection protocols)
Wilkinson v. Austin, 545 U.S. 209 (application of Sandin and limitations on state-created liberty interests)
Mathews v. Eldridge, 424 U.S. 319 (framework for procedural-due-process adequacy)