Tommy Sells v. Brad Livingston, 561 F. App'x 342

Background

Tommy Lynn Sells was convicted and sentenced to death for the December 31, 1999 capital murder of Kaylene Harris; execution scheduled for April 3, 2014.
On April 1, 2014 Sells filed a § 1983 complaint and moved for a TRO, preliminary injunction, and stay, arguing inadequate disclosure about the pentobarbital to be used in his execution.
Sells sought detailed information about the drug: source, purchase records, storage, manufacture date/lot numbers, ingredients, testing, and testing lab/personnel.
State disclosed its July 9, 2012 TDCJ execution procedure: a five-gram dose of pentobarbital from a licensed U.S. compounding pharmacy, batch tested by an independent lab showing 108% potency and no contaminants; same protocol used in recent Texas executions.
The district court granted the injunction and stay; the State appealed and moved to vacate the stay.
The Fifth Circuit reviewed whether Sells showed a substantial likelihood of success on Eighth and Fourteenth Amendment claims and whether irreparable harm and balance of equities favored relief.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the State's secrecy about the compounded pentobarbital violates the Eighth Amendment by creating a substantial risk of severe pain	Sells: lack of disclosure about the drug and new compounder creates a risk of improper compounding, contamination, or potency problems leading to severe pain	State: TDCJ protocol and independent lab test show potency and absence of contaminants; drug is commonly used and protocol approved in prior cases	Denied — speculation about risks insufficient; plaintiff failed to show a substantial likelihood of success under Baze
Whether due process requires disclosure of execution-drug procurement and testing details	Sells: due process entitles him to information to assess risk and prepare challenges	State: secrecy does not create a constitutional violation; provided procedural safeguards and testing results	Denied — uncertainty alone does not establish a due-process violation (Sepulvado controls)
Whether a preliminary injunction/stay is warranted given likelihood of success and balance of harms	Sells: imminent execution and alleged risk warrant extraordinary relief	State: interest in carrying out sentence and showing testing/controls outweigh speculative claims	Denied — plaintiffs did not meet the preliminary-injunction/stay standards; injunction and stay vacated
Standard for assessing scientific/speculative evidence in execution-method claims	Sells: expert reports alleging risks from compounding pharmacies and grey-market ingredients show real danger	State: such expert assertions are speculative and insufficient without scientific proof of substantial risk	Court: plaintiffs must present scientific/factual evidence showing a substantial risk compared to alternatives; speculation is insufficient

Key Cases Cited

Baze v. Rees, 553 U.S. 35 (2008) (Eighth Amendment requires showing substantial risk of severe pain compared to alternatives)
Nken v. Holder, 556 U.S. 418 (2009) (stay factors include likelihood of success, irreparable injury, balance of harms, and public interest)
Hilton v. Braunskill, 481 U.S. 770 (1987) (stay-of-execution equitable factors)
Whitaker v. Livingston, 732 F.3d 465 (5th Cir. 2013) (expert evidence about compounded pentobarbital insufficient for preliminary injunction)
Thorsen v. Epps, 701 F.3d 444 (5th Cir. 2012) (upholding Texas single-drug protocol under Baze)
Sepulvado v. Jindal, 729 F.3d 413 (5th Cir. 2013) (secrecy about execution protocol alone does not violate due process)
Hill v. McDonough, 547 U.S. 573 (2006) (federal courts should protect states from dilatory or speculative suits)
Janvey v. Alguire, 647 F.3d 585 (5th Cir. 2011) (standard of review for preliminary injunctions)
Byrum v. Landreth, 566 F.3d 442 (5th Cir. 2009) (legal-errors in injunction decisions reviewed de novo)
Speaks v. Kruse, 445 F.3d 396 (5th Cir. 2006) (elements required for preliminary injunction)