Tommy Sells v. Brad Livingston, 750 F.3d 478

Background

Ramiro Hernandez was convicted and sentenced to death in Texas for the 1997 murder of Glen Lich; physical and DNA evidence linked him to the crime and he was arrested at the scene.
Hernandez and fellow inmate Tommy Lynn Sells filed a §1983 complaint seeking disclosure of information about the pentobarbital to be used in their executions and a TRO/stay.
The district court granted a preliminary injunction requiring disclosure (under a protective order) and stayed Hernandez’s execution pending disclosure.
The State appealed; a separate Fifth Circuit panel vacated the injunction as to Sells and Sells was executed. This panel considered Hernandez’s stay.
The requested disclosure sought details about the drug’s source, compounding, testing, lot numbers, and testing personnel; the State had already disclosed that a five-gram dose of pentobarbital from a U.S. compounding pharmacy (tested independently, 108% potency, no contaminants) would be used under TDCJ’s single‑drug protocol.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court erred in ordering disclosure of detailed information about the lethal drug and staying execution	Hernandez argued disclosure was needed to identify possible contamination/improper compounding and to show a substantial likelihood of Eighth/14th Amendment violation	Texas argued it had already disclosed key procedural facts and that mere speculation about a new compounding source does not show likely constitutional violation or require further disclosure	Court held Hernandez failed to show a likelihood of success; mere speculation insufficient; vacated the stay and reversed the injunction
Whether Whitaker requires disclosure of execution-protocol information as a matter of law	Hernandez relied on Whitaker to justify disclosure to enable specific objections	State argued Whitaker does not impose a disclosure requirement and requires proof, not speculation, of a defective process	Court interpreted Whitaker (and Sepulvado) to mean plaintiffs must produce some probative evidence, not hypothetical concerns; Whitaker does not mandate disclosure
Whether failure to disclose execution-protocol details can be a due-process violation absent an identified liberty interest	Hernandez contended nondisclosure prevented him from identifying a cognizable liberty interest and bringing a due-process claim	State argued no appellate precedent recognized disclosure as a liberty interest; nondisclosure alone does not create one	Court agreed with Sepulvado: absence of a recognized liberty interest means nondisclosure cannot establish a due-process violation
Whether the balance of harms and public interest favored injunctive relief	Hernandez argued irreparable harm (risk of severe pain) and need for information outweighed harms to the State	State argued public interest and finality of executions plus insufficient proof of constitutional risk weigh against injunction	Court found Hernandez failed to demonstrate likely success or irreparable injury sufficient to tip the balance; injunction reversed

Key Cases Cited

Janvey v. Alguire, 647 F.3d 585 (5th Cir. 2011) (standard and elements for preliminary injunction review)
Adams v. Thaler, 679 F.3d 312 (5th Cir. 2012) (stay of execution standard)
Thorson v. Epps, 701 F.3d 444 (5th Cir. 2012) (upholding single-drug pentobarbital protocol)
Whitaker v. Livingston, 732 F.3d 465 (5th Cir. 2013) (plaintiff must show proof, not mere hypothetical possibilities, of constitutional defect)
Sepulvado v. Jindal, 729 F.3d 413 (5th Cir. 2013) (failure to identify a cognizable liberty interest undermines a due-process disclosure claim)