Whitaker v. Collier

• Decision Date: 07 July 2017
• Docket Number: No. 16-20364,16-20364
• Citation: 862 F.3d 490
• Parties: Thomas WHITAKER ; Perry Williams, Plaintiffs–Appellants, v. Bryan COLLIER; William Stephens; James Jones; Unknown Executioners, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

862 F.3d 490

Thomas WHITAKER ; Perry Williams, Plaintiffs–Appellants,
v.
Bryan COLLIER; William Stephens; James Jones; Unknown Executioners, Defendants–Appellees.

No. 16-20364

United States Court of Appeals, Fifth Circuit.

FILED July 7, 2017

Bobbie Leigh Stratton, Valerie Anne Henderson, Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Houston, TX, Maurie Levin, Philadelphia, PA, for Plaintiffs–Appellants.

Scott A. Keller, Solicitor, Matthew Hamilton Frederick, Deputy Solicitor General, Office of the Solicitor General for the State of Texas, Edward Larry Marshall, Matthew Dennis Ottoway, Assistant Attorney General, Office of the Attorney General, Postconviction Litigation Division, Austin, TX, for Defendants–Appellees.

Before SMITH, PRADO, and GRAVES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Thomas Whitaker and Perry Williams sued state officials under 42 U.S.C. § 1983 to challenge their method of execution under the First, Sixth, Eighth, and Fourteenth Amendments. Because the plaintiffs have not stated a claim on which relief can be granted, we affirm the dismissal of their complaint.

I.

Whitaker and Williams were convicted of capital murder and sentenced to death. Whitaker's conviction and sentence were affirmed in 2009,¹ Williams's in 2008.² They filed their original complaint in October 2013.³ The district court dismissed because their date of execution had not been set, so the dispute was not ripe, but we reversed because "the current protocol is presumably ‘the means that Texas will select for their execution.’ " Whitaker v. Livingston , 597 Fed.Appx. 771, 773, 774 (5th Cir. 2015) (per curiam).

On remand, the plaintiffs filed a second amended complaint (the subject of this appeal) with four counts. Count One alleges that the lack of a notification requirement, in Texas's execution protocol, for changes to the protocol violates the Eighth Amendment and the Fourteenth Amendment's Due Process Clause. Count Two alleges that the lack of a requirement that prisoners have access to counsel "during the events leading up to and during the course of their execution" violates the First, Sixth, and Eighth Amendments. Count Three alleges that the failure to conduct additional testing of the compounded pentobarbital (the execution drug), use of the compounded pentobarbital after its "Beyond Use Date" ("BUD"), and the absence of other appropriate safeguards violate the Eighth and Fourteenth Amendments. Count Four alleges that the failure to release, or the concealment of, information about the protocol violates the Eighth and Fourteenth Amendments. The

862 F.3d 494

defendants, referred to collectively as the Texas Department of Criminal Justice ("TDCJ"), moved to dismiss under Federal Rule of Civil Procedure 12(b)(6).

While the motion to dismiss was pending, the district court permitted limited discovery. During that time, Texas stipulated that it would conduct additional testing of the compounded pentobarbital before executing Whitaker and Williams.⁴ The court eventually granted TDCJ's motion to dismiss all claims. It held that Counts One, Two, and the part of Count Three challenging the lack of additional safeguards were barred by the statute of limitations. It also ruled that Whitaker and Williams had failed to state a claim on the remaining issues. On appeal now,⁵ we affirm the dismissal.

II.

The statute of limitations for Section 1983 method-of-execution claims is the same as the general personal-injury limitations for the state of conviction. Walker v. Epps , 550 F.3d 407, 411–12 (5th Cir. 2008). In Texas, a personal-injury action must be brought "not later than two years after the day the cause of action accrues." TEX. CIV. PRAC. & REM. CODE ANN. § 16.003 (West 2016). A method-of-execution cause of action accrues "on the date direct review of a plaintiff's conviction and sentence is complete" or "in the event a state changes its execution protocol after a death-row inmate's conviction has become final ... on the date that protocol change becomes effective." Walker , 550 F.3d at 414.

The plaintiffs filed their original complaint more than two years after their convictions and sentences became final, so to benefit from a more recent accrual date, they must show a change in the protocol. They maintain that TDCJ's September 2013 change from manufactured to compounded pentobarbital "constituted a substantial change to the TDCJ protocol" that "should be the date that limitations for [plaintiffs'] section 1983 claims accrued." Alternatively, they contend that limitations has not begun to run because they are subject to a continuing injury resulting from TDCJ's ability to change its protocol at any time. We must decide whether the change to compounded pentobarbital can serve as the substitute accrual date and, if so, for which specific parts of the protocol.⁶

Walker did not decide what kind of change would be sufficient to reset the accrual date or how much of the protocol would be challengeable. Id. at 415. So far, we have only assumed arguendo that the most recent change—in 2013—is the accrual date where the claims were time-barred regardless of the date chosen. See Wood v. Collier , No. 16-20556, 678 Fed.Appx. 248, 249–50, 2017 WL 892490, at *1 (5th Cir. Mar. 6, 2017) (per curiam). We did not decide whether that September 2013 date—which we termed "the most generous accrual point possible"—or an earlier date (given that "[s]ome of the aspects of Texas's death penalty protocol ...

862 F.3d 495

have not changed since 2008") was the appropriate accrual date. Id . at 250 n.7, 2017 WL 892490at *1 n.7.⁷

The Eleventh Circuit requires that, for the accrual date to reset, a change to the protocol must be substantial. Gissendaner v. Comm'r, Ga. Dep't of Corr. , 779 F.3d 1275, 1280 (11th Cir.) (per curiam) (quoting another source). Moreover, "a claim that accrues by virtue of a substantial change in a state's execution protocol is limited to the particular part of the protocol that changed." Id. at 1280–81. "In other words, a substantial change to one aspect of a state's execution protocol does not allow a prisoner whose complaint would otherwise be time-barred to make a ‘wholesale challenge’ to the state's protocol."Id. at 1281.

We agree with the Eleventh Circuit: To reset the accrual date, a change to an execution protocol must be substantial, and any new accrual date is applicable only to the portion of the protocol that changed. See id. at 1280–81. In permitting Section 1983 method-of-execution claims, the Supreme Court acknowledged that such claims, where they entail a stay of execution, can unreasonably delay imposition of the sentence. Hill v. McDonough , 547 U.S. 573, 583–84, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006). "Repetitive or piecemeal litigation presumably would raise similar concerns." Id. at 585, 126 S.Ct. 2096. The most straightforward way to avoid that is to place reasonable limits on the type of change that resets the accrual date instead of allowing a proliferation of claims that could indefinitely delay the sentence, as well as creating a perverse incentive for states to refuse to make the very changes the plaintiffs are seeking.

The definition of "substantial" requires further elaboration. The plaintiffs are correct that setting the level of abstraction at lethal injection, as the district court seemed to suggest,⁸ is too strict. We cannot say that the use of any injectable substance that causes death is always an insignificant change, because there could be substances that do create a "substantial risk of serious harm." Glossip v. Gross , ––– U.S. ––––, 135 S.Ct. 2726, 2737, 192 L.Ed.2d 761 (2015) (quoting Baze v. Rees , 553 U.S. 35, 50, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) ). But a limit has to be drawn to avoid "[r]epetitive or piecemeal litigation." Hill , 547 U.S. at 585, 126 S.Ct. 2096.

Again, we follow the Eleventh Circuit. The plaintiff in Gissendaner challenged the constitutionality of Georgia's switch from manufactured to compounded pentobarbital. The court held that was "not a substantial change because the switch between two forms of the same drug does not significantly alter the method of execution." Id. at 1282. We agree.

Applying these rules, the district court was correct to dismiss Counts One, Two, and part of Three as time-barred. Whitaker's and Williams's convictions and sentences were affirmed by the Texas Court of Criminal Appeals in 2009 and 2008, respectively.⁹ They sued in 2013, well after the expiration of the two-year limitations period for unchanged parts of the protocol. The lack of a notice requirement, the lack of access to counsel during the execution, and the list of additional safeguards

862 F.3d 496

in Count Three were all claims that existed as of the May 2008 execution protocol and have not been altered since.¹⁰ These claims are time-barred.

The remaining claims in Count Three, regarding retesting and the BUD of the compounded pentobarbital, would be time-barred under the new rule, because the 2013 change to compounded pentobarbital is not substantial. But, in addition to the 2013 change, TDCJ also changed from a three-drug to a one-drug protocol between 2008 and 2012. Because no party raises whether that change is substantial, we do...