Raby v. Livingston

• Decision Date: 15 March 2010
• Docket Number: No. 08-20772.,08-20772.
• Citation: 600 F.3d 552
• Parties: Charles D. RABY, Plaintiff-Appellant, v. Brad LIVINGSTON, Executive Director, Texas Department of Criminal Justice; Charles O'Reilly, Senior Warden, Huntsville Unit; Unknown Executioners; Doug Dretke, Director, Texas Department Of Criminal Justice, Correctional Institutions Division, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

600 F.3d 552

Charles D. RABY, Plaintiff-Appellant, v. Brad LIVINGSTON, Executive Director, Texas Department of Criminal Justice; Charles O'Reilly, Senior Warden, Huntsville Unit; Unknown Executioners; Doug Dretke, Director, Texas Department Of Criminal Justice, Correctional Institutions Division, Defendants-Appellees.

No. 08-20772.

United States Court of Appeals, Fifth Circuit.

March 15, 2010.

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Kevin Dane Mohr (argued), Amy Roebuck Frey, King & Spalding, L.L.P., Houston, TX, for Plaintiff-Appellant.

James C. Ho, Candice Nicole Hance, Office of Solicitor Gen., Adam Warren Aston (argued), Office of Atty. Gen., Austin, TX, Marjolyn Carol Gardner, David Alan Harris, Asst. Atty. Generals, Office of Atty. Gen., Law Enforcement Defense Div., Austin, TX, for Defendants-Appellees.

Before JONES, Chief Judge, and GARZA and STEWART, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Charles Raby is a Texas prisoner under death sentence. Raby filed suit under 42 U.S.C. § 1983, asserting that Texas' method for lethal injection violates his right to be free of cruel and unusual punishment guaranteed by the Eighth Amendment to the United States Constitution. In the wake of the Supreme Court's decision upholding lethal injection in Kentucky in Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), the district court denied Raby's FED.R.CIV.P. 56(f) motion for a continuance to permit further discovery regarding the administration of the Texas protocol and granted summary judgment to Defendants. We affirm.

I

A

Raby was convicted of capital murder and sentenced to death in 1994. The Texas Court of Criminal Appeals affirmed his conviction and sentence in 1998, Raby v. State, 970 S.W.2d 1 (Tex.Crim.App.1998), and the United States Supreme Court denied certiorari, Raby v. Texas, 525 U.S. 1003, 119 S.Ct. 515, 142 L.Ed.2d 427 (1998). Raby unsuccessfully petitioned for state habeas corpus relief. He filed a federal petition for the writ of habeas corpus, which was denied by the district court. We denied his application for a certificate of appealability, Raby v. Dretke, 78 Fed.Appx. 324 (5th Cir.2003) (per curiam), and the Supreme Court denied certiorari, Raby v. Dretke, 542 U.S. 905, 124 S.Ct. 2837, 159 L.Ed.2d 270 (2004). According to his counsel, Raby is currently litigating a separate action involving forensic DNA testing in the 248th Judicial District Court in Harris County, Texas. No date has been set for his execution.

Raby initiated the present action under § 1983, seeking a permanent injunction barring Defendants from executing him in accordance with the lethal injection protocol promulgated by the Texas Department of Criminal Justice. Following the district court's denial of Defendants' motion to dismiss for failure to state a claim, Raby obtained a limited amount of discovery. He deposed Defendant Charles O'Reilly, who, as Senior Warden at the Huntsville Unit, presides over lethal injection executions in Texas.

Before Raby could go forward with efforts to obtain other discovery, the Supreme Court issued a writ of certiorari in Baze v. Rees, granting review of a Kentucky Supreme Court case that had upheld the constitutionality of Kentucky's method of lethal injection. 217 S.W.3d 207 (Ky. 2006). The district court subsequently entered a stay of all proceedings below pending the Supreme Court's resolution of Baze v. Rees.

The Supreme Court issued its decision rejecting the challenge to Kentucky's lethal injection protocol. Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008). The district court thereafter lifted the stay in this action and ordered the parties to submit supplemental briefing addressing the impact of Baze on Raby's challenge to Texas' method of lethal injection.

In accordance with the deadline imposed by the district court, Raby filed a brief addressing the impact of Baze on his claims. On that same day, Defendants filed a motion for summary judgment in which they argued that the Texas lethal injection protocol is indistinguishable from the Kentucky protocol and perforce constitutional. Thereafter, Raby filed a motion under FED.R.CIV.P. 56(f) to continue Defendants' motion for summary judgment, arguing that he must be given the opportunity to conduct full and adequate discovery before being put to the burden of responding to the pending motion. The district court denied Raby's motion under FED. R.CIV.P. 56(f) and granted the pending motion for summary judgment, treating Raby's June 16 brief and supporting evidence as a response to Defendants' motion for summary judgment. Raby filed a timely notice of appeal.

B

Texas adopted lethal injection as a means of execution in 1982 and has conducted over four hundred executions since that time. Pursuant to Article 43.14 of the Texas Code of Criminal Procedure, the mandatory means of execution in Texas is lethal injection. Texas has established a written protocol for the lethal injection procedure that is currently documented in the Execution Procedure adopted by the Texas Department of Criminal Justice, Correctional Institutions Division, effective May 2008 (the "Execution Procedure").

Like thirty of the thirty-six states (including Kentucky) that have adopted lethal injection as their chosen method of capital punishment, Texas uses the same combination of three drugs in its lethal injection protocol. Under the Execution Procedure, executions are carried out by injecting the inmate with the following three chemicals: sodium thiopental (also known as sodium pentathol), a fast-acting barbiturate sedative that induces a deep, comalike unconsciousness when given in the amounts used for lethal injection; pancuronium bromide, a paralytic that inhibits muscular-skeletal movement but that has no effect on awareness, cognition, or sensation; and potassium chloride, a chemical that interferes with the contractions of the heart, inducing cardiac arrest.

The execution process is carried out by a "drug team" that includes at least one medically-trained individual. The medically-trained individual must be certified or licensed as a certified medical assistant, phlebotomist, emergency medical technician, paramedic, or military corpsman and must have at least one year of professional experience prior to participating in an execution. Each new member of the drug team must follow the drug team through two executions and then participate in two executions under direct supervision before participating in an execution without supervision.

In preparation for an execution, the drug team members prepare six syringes of normal saline (three for use as back-up) and two syringes each of solutions of sodium pentathol, pancuronium bromide, and potassium chloride in prescribed amounts (one of each solution to serve as a back-up set). After the inmate is secured to a gurney in the execution chamber, a medically-trained member of the drug team inserts two intravenous catheters, the second to be used as a back-up. A medically-trained individual then connects an IV administration set and starts the flow of normal saline through one IV line. After the saline IV has been started and is running properly, witnesses to the execution are brought into the appropriate viewing area and the condemned inmate is allowed to make a brief last statement.

After the order is given to commence the execution, a member of the drug team discontinues the flow of normal saline through the primary line and injects the entire contents of a syringe containing the sodium pentathol solution. The line is then flushed with an injection of normal saline. The Execution Procedure mandates that designated officials (the Correctional Institutions Division Director or designee and the Huntsville Unit Warden or designee) observe the appearance of the condemned individual during application of the sodium pentathol. If, in the judgment of the designated observers, the inmate exhibits visible signs of being awake, the drug team members are instructed to switch to the back-up IV to administer another lethal dose of sodium pentathol, followed by a saline flush. Following either the one or the two doses of sodium pentathol, the drug team members inject the entire contents of the syringe containing the pancuronium bromide solution into the IV line and then flush the line with normal saline. The drug team members next inject the entire contents of the syringe containing the potassium chloride solution into the IV line, followed by a saline flush if necessary. A physician then enters the execution chamber to examine the inmate and pronounce death.

The primary complaint against the three-drug protocol is that an improper or insufficient administration of the first drug can leave the inmate exposed to severe pain that results from the administration of the second and third drugs. This risk is heightened by the second drug, which paralyzes the inmate while leaving him fully conscious. The paralytic effect has the potential to mask any outward sign of distress while leaving the prisoner conscious to excruciating pain before death occurs. Thus, following this argument, the three-drug protocol is unconstitutional because it produces a risk that if the inmate is not properly sedated after the sodium pentathol is administered, he may experience excruciating pain from the latter two drugs that no one can detect. It is this risk that formed the basis of the challenge in Baze and that forms the basis of Raby's challenge in the instant case.

II

A

Raby does not seriously dispute that the above-described Texas Execution Procedure is substantially similar to the Kentucky protocol that the Supreme Court approved in Baze.¹ Rather, he questions whether the actual administration of lethal injection in Texas follows the dictates of the Execution Procedure. Relying on the concurring opinion of Justice Stevens for the proposition that a more complete record could change the result in Baze, 128...