Roger Thorson v. Christopher Epps, 2012 U.S. App. LEXIS 23356

Thorson, a Mississippi death-row inmate, sues to enjoin Mississippi's lethal injection procedures under §1983.
He alleges unwritten aspects of the protocol create risk of severe pain if anesthesia is inadequate.
The district court granted summary judgment partly for failure to exhaust via the PLRA and on the merits.
The court found no link between unwritten protocol and risk of harm; evidence was insufficient.
Thorson appealed, arguing both exhaustion and merits, including Eighth Amendment claims under Baze.
This court affirms, applying Baze to conclude there is no objectively intolerable risk in Mississippi’s protocol.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Exhaustion requirement applicability	Thorson argued PLRA exhaustion should be excused at merits stage.	State maintained mandatory exhaustion before relief applies.	Exhaustion not required at merits stage given discovery and merits briefing.
Merits standard under Baze	Mississippi protocol risks cruel and unusual punishment due to unwritten elements.	Protocol aligns with Baze’s flexible framework; no substantial risk.	Mississippi protocol does not present a substantial or intolerable risk under Baze.
Role of unwritten protocol elements	Unwritten aspects could cause harm, requiring constitutional scrutiny.	Written protocol plus training and practice sufficiently manage risk.	Unwritten steps are not constitutionally dispositive given demonstrated training and practice.
Monitoring and anesthesiology standards	Monitoring and anesthesia practices are inadequate under the protocol.	Lay monitoring and established dosing meet Baze’s standards.	Monitoring and anesthesiology practices suffice; no Eighth Amendment violation.
Evidence of harm and precedential support	Thorson points to potential for harm without empirical failures.	No recorded malfunctions or suffering under Mississippi’s protocol; precedent supports summary judgment.	Lack of evidence of actual harm defeats §1983 claim; aligns with Raby guidance.

Baze v. Rees, 553 U.S. 35 (U.S. 2008) (requires substantial, objectively intolerable risk to prevail)
Woodford v. Ngo, 548 U.S. 81 (U.S. 2006) (administrative exhaustion goals; mandatory process)
Raby v. Livingston, 600 F.3d 552 (5th Cir. 2010) (endorses flexible Baze application; unwritten steps not dispositive)
Nelson v. Campbell, 541 U.S. 637 (U.S. 2004) (PLRA exhaustion for §1983 challenges to prison conditions)
White v. Johnson, 429 F.3d 572 (5th Cir. 2005) (PLRA exhaustion applicability and claims about execution procedures)
Kelly v. Lynaugh, 862 F.2d 1126 (5th Cir. 1988) (unqualified personnel and lethal injection concerns)
McCarthy v. Madigan, 503 U.S. 140 (U.S. 1992) (administrative exhaustion goals recognized)
FDIC v. Laguarta, 939 F.2d 1231 (5th Cir. 1991) (court enforcement of district court decisions; basis for affirming on any basis)