Thomas Whitaker v. Bryan Collier
862 F.3d 490
5th Cir.2017Background
- Whitaker and Williams, both sentenced to death in Texas, sued under 42 U.S.C. § 1983 challenging Texas’s execution protocol (notably the switch to compounded pentobarbital) on Eighth, First, Sixth, and Fourteenth Amendment grounds.
- Plaintiffs filed initially in 2013 after Texas’s 2013 change from manufactured to compounded pentobarbital; prior appeals produced remand allowing challenge to the existing protocol.
- Second amended complaint alleged (1) no-notice provision for protocol changes; (2) no right to counsel around execution; (3) inadequate testing/BUD and safeguards for compounded pentobarbital; (4) concealment/refusal to disclose protocol details.
- Defendants (TDCJ) moved to dismiss under Rule 12(b)(6); district court permitted limited discovery and Texas stipulated to additional drug testing, then dismissed all claims as time‑barred or insufficiently pleaded.
- Fifth Circuit majority: affirmed dismissal — held many claims were time‑barred because only “substantial” protocol changes reset accrual and the 2013 switch to compounded pentobarbital was not substantial; alternatively, plaintiffs failed to plead an Eighth Amendment method‑of‑execution claim under Glossip/Baze standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs’ claims are time‑barred (accrual date) | Accrual occurred when Texas switched to compounded pentobarbital in Sept. 2013 (or continuing injury) | Limitations accrued when direct review ended unless a substantial protocol change occurred; protocol not a continuing tort | Claims based on aspects unchanged since 2008 are time‑barred; switch to compounded pentobarbital is not a substantial change so does not reset accrual for many claims |
| Whether using compounded pentobarbital and limited testing state a method‑of‑execution (Eighth) claim | Single pre‑delivery test and extended BUD create substantial, imminent risk of severe pain; alternatives (FDA drugs) are feasible | Allegations are speculative; no factual showing of a substantial, imminent risk nor a pleaded feasible alternative that significantly reduces risk | Pleadings are too speculative under Glossip/Baze; failure to allege substantial risk or adequate alternative — dismissal affirmed |
| Whether lack of notice/disclosure or secrecy violates due process or right of access to courts | Secrecy and no-notice prevent meaningful challenge and access to courts; implicates due process and First Amendment access | Secrecy does not itself create an Eighth Amendment risk or a cognizable liberty interest; access claim is speculative without a viable underlying Eighth claim | No liberty interest shown; disclosure/notice claims fail; access‑to‑courts claim fails because underlying claims are not plausibly pleaded |
| Whether right to counsel at execution (First/Sixth/Eighth) is implicated | Plaintiffs assert need for counsel during events leading up to/during execution to protect constitutional rights | Sixth Amendment counsel right ends with first appeal of right; no pleaded substantial risk from lack of counsel; speculative “botched execution” theory | Sixth Amendment claim fails; access‑to‑counsel and related claims are not pleaded to meet Eighth Amendment method‑of‑execution standards |
Key Cases Cited
- Walker v. Epps, 550 F.3d 407 (5th Cir.) (statute‑of‑limitations accrual rule for § 1983 method‑of‑execution claims)
- Glossip v. Gross, 135 S. Ct. 2726 (U.S.) (Eighth Amendment method‑of‑execution standard: substantial risk + feasible alternative)
- Baze v. Rees, 553 U.S. 35 (U.S.) (framework for Eighth Amendment lethal‑injection claims)
- Hill v. McDonough, 547 U.S. 573 (U.S.) (equitable limits on stays for method‑of‑execution suits; caution against piecemeal litigation)
- Gissendaner v. Comm’r, Ga. Dep’t of Corr., 779 F.3d 1275 (11th Cir.) (substantial‑change rule: accrual resets only for substantial protocol changes and only as to changed aspect)
- Zink v. Lombardi, 783 F.3d 1089 (8th Cir.) (compounded pentobarbital allegations too speculative at motion‑to‑dismiss)
- Wood v. Collier, 836 F.3d 534 (5th Cir.) (denial of stay where retesting not constitutionally required; posture addressing similar compounded‑drug claims)
- Sepulvado v. Jindal, 729 F.3d 413 (5th Cir.) (no cognizable due‑process liberty interest from protocol‑disclosure claims)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S.) (pleading standard: conclusory allegations insufficient)