Thomas Whitaker v. Brad Livingston
2013 U.S. App. LEXIS 20513
| 5th Cir. | 2013Background
- Plaintiffs (Whitaker, Williams, Yowell) sought a preliminary injunction to bar the State from using pentobarbital obtained from compounding pharmacies in executions; Yowell faced imminent execution.
- Plaintiffs asserted claims under the Eighth Amendment (cruel and unusual punishment), the Fourteenth Amendment (due process), the Supremacy Clause, and a right-of-access-to-courts theory based on delayed disclosure of execution-drug information.
- The district court denied the preliminary injunction and Yowell’s stay; plaintiffs appealed. The Fifth Circuit reviewed only the likelihood-of-success prong and affirmed.
- The State disclosed the execution method information to plaintiffs once the State had the information and provided lab results showing the drug’s potency (98.8%).
- Plaintiffs relied on hypothetical risks from compounding-sourced drugs (contamination, incorrect acidity, potency problems, pulmonary embolism) and argued they needed more time to develop evidence of those risks.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Access to courts for delayed disclosure | Delay in disclosing execution method hindered plaintiffs’ ability to vindicate federal rights | State timely disclosed information once it had it; no cognizable delay | Denied — disclosure was timely and access claim depends on underlying Eighth Amendment showing |
| Supremacy Clause impediment | Failure to disclose thwarted enforcement of federal rights under Supremacy Clause | Supremacy Clause merely makes federal rights effective against states; it creates no separate cause of action | Denied — claim rises/falls with Eighth Amendment, not a standalone cause of action |
| Fourteenth Amendment due process | Yowell entitled to more process because of uncertainty about execution method | No cognizable liberty interest shown; state disclosed the method; Sepulvado controls | Denied — no liberty interest shown and process provided was adequate |
| Eighth Amendment (Baze standard) | Compounded pentobarbital poses demonstrated, substantial risk of severe pain versus known alternatives; need more time to prove it | Evidence is speculative; drug potency high; plaintiffs must show substantial risk compared to alternatives | Denied — plaintiffs offered only speculation/known unknowns; no evidence drug very likely to cause needless suffering; Baze standard not met |
Key Cases Cited
- Byrum v. Landreth, 566 F.3d 442 (5th Cir. 2009) (preliminary-injunction standard elements)
- Speaks v. Kruse, 445 F.3d 396 (5th Cir. 2006) (standard for preliminary injunction)
- Ashcroft v. Iqbal, 556 U.S. 662 (plausibility pleading standard)
- Baze v. Rees, 553 U.S. 35 (Eighth Amendment standard for lethal injection challenges)
- Marbury v. Madison, 5 U.S. 137 (role of federal law/supremacy principles)
- McCulloch v. Maryland, 17 U.S. 316 (federal supremacy over states)
- Brewer v. Landrigan, 131 S. Ct. 445 (Supreme Court vacating stay where risk was speculative)