UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

I United States Courts Southern District of Texas
FILED
MAR 1 0 Z006

Carlos Gonzalez Magallon, Consul General of Mexico and Next Friend of Angel Maturino Resendiz, Plaintiff,
v.
Brad Livingston, Executive Director, Texas Department of Criminal Justice,
Doug Dretke Director, Correctional Institutions Division Texas Department of Criminal Justice,
Charles O'Reilly, 'Senior Warden, Huntsville Unit Huntsville, Texas,
and,
Unknown Executioners;
Defendants.

) ) ) ) ) ) ) )
ia
) ) ) ) ) ) ) ) ) ) ) ) ) )

U1dIBB1 No Milby, Clark of Court
06 0818
No. _ _ _ __ (death-penalty case)

PLAINTIFF'S ORIGINAL COMPLAINT
I.
Nature of Action
1. This action is brought pursuant to 42 U.S.C. § 1983 for violations and threatened violations of the right of Plaintiff to be free from cruel and usual punishment under the Eighth and Fourteenth Amendments to the United States Constitution. Plaintiff seeks equitable relief.

II. Plaintiff
2. Carlos Gonzalez Magallon is the Consul General of Mexico in Houston, Texas and Next Friend of Angel Maturlno Resendiz. He appears in that capacity pursuant to FRCP 17(c) because Mr. Maturino Resendiz is incompetent to proceed in this action on his own behalf. Mr. Maturino Resendiz is a Mexican national and is a person within the jurisdiction of the State of Texas. He is currently a death-sentenced inmate under the supervision ofthe Texas Department of Criminal Justice, TDCJ # 999356. He is currently being held in the Harris County jail in Houston, Texas, awaiting execution of that sentence. The sentence is scheduled to be carried out on May 10, 2006.
III. Defendants
3. Defendant Brad Livingston is the Executive Director of the Texas Department of Criminal I Justice. Doug Dretke is the Director of the Correctional Institutions Division of the Texas Department of Criminal Justice (TDCJ). Charles O'Reilly is the Sehior Warden of the Huntsville Unit where the execution will occur. Defendants Unknown Executioners are employed by the Texas Department of Criminal Justice and will carry out the scheduled execution of Mr. Maturlno Resendiz. Mr. Maturino Resendiz does not yet know their identities because the TDCJ conceals them.
4. The Defendants are all state officials acting, in all respects relevant to this action, under color of state law. They are all sued in their official capacities.
IV. Jurisdiction and Venue
5. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 (federal question), 1343 (civil rights violations), 2201 (declaratory reliet), and 2202 (further reliet).1 This action arises under the Eighth and Fourteenth Amendments to the United States Constitution and under 42 U.S.C. § 1983.
6. Venue in this Court is proper under 28 U.S.C. § 1391, and this Court has personal jurisdiction over the defendants in this matter because the events giving rise to this claim will occur in Huntsville, Texas.
V.
Facts
7. Angel Maturlno Resendiz was sentenced to death following his convictiqn for capital murder in the 178th Judicial District Court of Harris County, Texas. Through court appointed counsel, Mr. Maturlno Resendiz challenged his conviction and sentenceIon direct appeal and in state and federal post-conviction proceedings. On September 7,2005, the United States
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District Court for the Southern District ofTexas dismissed Mr. Maturino Resendiz's federal habeas petition. The Fifth Circuit Court ofAppeals is currently reviewi4g the federal district court's decision to deny Mr. Maturino Resendiz the opportunity to appeal the dismissal ofhis federal habeas corpus petition.
8. On January 6,2006, the 178th Judicial District Court of Harris County, Texas set a date of May 10, 2006, for Mr. Maturino Resendiz to be executed by the Defendants. In its sentencing order, the Court specified that an executioner designated by the Director of the Institutional Division ofthe TDCJ "shall cause a substance or substances in a lethal quantity to be intravenously injected into [his] body sufficient to cause [his] death and until [his]
I
death: such execution procedure to be determined and supervised by the said Director ...." See Ex Parte Angel Maturino Resendiz, Sentence ofDeath, Cause No. 8:18903, Jan. 6,2006.
9. Under Texas law, the Defendants are given discretion to design the protocol for the administration ofa death sentence by lethal injection, including which drugs will be injected to execute the sentence. The precise lethal injection protocol designed by Defendants is kept secret.
10. On information and belief, Plaintiff alleges that Defendants intend to administer the death sentence to Mr. Maturino Resendiz by injecting him with a combinatirin of three chemical substances: sodium thiopental, or sodium pentothal (an ultrashort-acting barbiturate); pancuronium bromide, or Pavulon; and potassium chloride.
11. Sodium thiopental, or sodium pentothal, is an ultrashort-acting barbiturate which is ordinarily used to render a surgical patient unconscious for mere minutes, only in the induction phase ofanesthesia, specifically so that the patient may re-awaken and breathe on his own power if any complications arise in inserting a breathing tube pre-surgery.
I I
12. Because of its briefduration, sodium thiopental may not provide a sedati;ve effect throughout the entire execution process. Other longer-acting barbiturates are availaBle to the Defendants which would eliminate that risk. There is no legitimate penological purpOse for using sodium thiopental instead ofthose longer acting sedatives.
13. Pavulon or pancuronium bromide is a curare-derived agent which when administered intravenously paralyzes all skeletal or voluntary muscles, but which has no effect whatsoever on awareness, cognition or sensation.
14. Pancuronium bromide can neutralize the sedative effect of sodium thiopental.
15. Because the inmate is restrained during the execution, the use pf Pavulon in the administration of Mr. Maturino Resendiz's death sentence by lethal 'injection serves no legitimate penological purpose and unnecessarily creates a risk of suffering.
16. Because Pavulon is a paralytic it prevents the inmate from expressing or showing any pain he is consciously experiencing during the execution process.
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17. Potassium chloride is a chemical which when administered intravenously interferes with the rhythmic contractions ofthe heart and causes cardiac arrest. It also activates the nerve fibers lining the veins and thus causes excruciating pain.
18. Because death can be caused by administration of barbiturates and other means that do not cause or risk pain, the use ofpotassium chloride is wholly unnecessary to the administration of the death sentence and serves no legitimate penological purpose.
19. According to admissions by a TDCJ spokesperson made on or about Fepruary 20, 2006, the
unknown executioners who will perform the lethal injection procedure on Mr. Maturino
Resendiz are not doctors and plaintiff alleges on information and belief that they are not trained in anesthesia. After placement of one or two intravenous lines, unknown
will executioners will step behind a wall or curtain and remotely administer drugs to Mr.
Maturino Resendiz. At the point at which unknown executioners step behind the
partition, Mr. Maturino Resendiz will still be conscious. Unknown executioners will not
undertake direct observation, physical examination, or electronic monitoring for anesthesia. In short, Defendants will not take any ofthe known, available measures ;that could ensure or
verify that Mr. Maturino Resendiz will not suffer conscious pain: as a result of the I
combination ofchemicals Texas proposes to utilize. See Morales v. Hickman, _ F. Supp. 2d ~ 2006 WL 335427, at 8 (N.D. Cal. Feb. 14,2006). (describing and ,ordering alternative procedures).
20. The particular combination of chemicals Defendants intend to administer to Mr. Maturino
Resendiz will cause an intolerable risk that he will consciously suff~r an excruciatingly painful and protracted death. Creating this risk serves no penological purposes and is wholly unnecessary to the execution process.
21. By implementing these protocols, the Defendants have demonstrated de~iberate indifference to the basic human right of condemned individuals not to be subject to a torturous and unnecessarily painful death without the ability to communicate the fact that they are in pain.
22. Texas law and prevailing standards ofdecency throughout the United States, evidenced in the enactment oflaws in many states, prohibit the use ofthe execution methods proposed by the defendants on animals. In fact, Texas recently passed legislation criminalizing inhumane methods ofeuthanizing animals, including the use ofneuromuscular blopking agents such as pancuronium bromide. See Tex. Health & Safety Code, § 821.052(a) (Vernon Supp. 20042005). With this legislation, Texas has joined numerous states with la\vs recognizing that use of these chemicals would be inhumane in the euthanasia of dogs o~ cats. See Fla. Stat. Ann. §§ 828.058, 828.065 (West 2000 & Supp. 2005); Ga. Code Ann) § 4-11-5.1 (1995); Me. Rev. Stat. Ann. tit. 17, § 1044 (West Supp. 2004); Md. Code Ann., Criminal Law, § 10-
611 (2002); Mass. Gen. Laws ch. 140 § 151A (2002); N.J. Stat. Ann. § 4:22-19.3 (West 1998); N.Y. Agric. & Mkts. § 374 (McKinney 2004); Okla. Stat. Ann. tit. 4, § 501 (West 2003); Tenn. Code Ann. § 44-17-303 (Supp. 2004). Other States have implicitly prohibited such practices. See Colo. Rev. Stat. Ann. §§ 18-9-201(2.7), 35-80-102(7) (West 2004);
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Conn. Gen. Stat. § 22-344a(2001); Del. Code Ann. tit. 3, § 8001 (2001);,510 Ill. Compo Stat. Ann. 70/2.09 (Supp. 2003); Kan. Stat. Ann. § 47-1718(a) (2000); Ky.. Rev. Stat. Ann. § 321.181(17) (Michie Supp. 2004); 201 Ky. Admin. Regs. 16:090, § 5(1) (2005); La. Rev. Stat. Ann. § 3:2465 (West 2003); Mo. Rev. Stat. §§ 578.005, 578.007 (2003); Mo. Code Regs. Ann. tit. 2, § 30-9.020(F)(5) (2005); R.I. Gen. Laws § 4-1-34 (1998); S.C. Code Ann. § 47-3-420 (Law Co-op Supp. 2004).
23. It is well known that the risk ofsuffering caused by the use ofmethods and chemicals such as those the Defendants use can easily and economically be eliminated. See e.g., 2000 Report of the American Veterinary Medical Association Panel on Euthanasia, 218 Journal of the American Veterinary Medical Association, 669, 681 (2001).
24. The risk ofinflicting severe and unnecessary pain and suffering upon Mr. Maturino Resendiz in the lethal injection process is particularly grave in Texas because the procedures and protocols designed by defendants, to the extent known, do not include safeguards regarding the manner in which the execution is to be carried out, do not establish the minimum qualifications and expertise required of the personnel performing the icritical tasks in the lethal injection procedure, and do not establish appropriate criteria and ,standards that these personnel must rely upon in exercising their discretion during the lethal injection procedures. According to Michelle Lyons, spokeswoman for the Texas Department ofCriminal Justice, Texas has used volunteers or "execution specialists", many ofwhom have military training, for the 359 executions it has conducted since 1982. In fact, doctors are not present when a person is put to death, and they are involved ''very, very little" and only to pronounce the prisoner's death. See Marilynn Marchione, Delay Spotlights the Role of Doctors in Executions, SACRAMENTO BEE, Feb. 21, 2006, at http://www.sacbee.com.
25. There are alternative methods of execution by lethal injection that are less torturous and inhumane by which the defendants could avoid this unconstitutional cruelty. For example, the defendants could omit pancuronium bromide and use a longer-acting sedative administered by a trained anesthesiologist to eliminate or substantially reduce the risk of consciously suffered pain caused by slow suffocation or the effects of potassium chloride. See Morales v. Hickman, _ F. Supp. 2d _,2006 WL 335427, at 8 (N.D. Cal. Feb. 14, 2006). There is no legitimate reason the defendants could not modify:the protocol for the administration ofa death sentence by lethal injection in this manner, and their failure to do so evidences deliberate indifference to the substantial and unnecessary risk ofextreme suffering , that results from their current practice.
26. Defendants have not informed Mr. Maturino Resendiz what medical procedures it intends to use to obtain venous access prior to administering the lethal injection. Defendants have keep their pre-injection protocol describing what medical procedures they will perform on Mr. Maturino Resendiz to prepare him for lethal injection, if any.
27. According to the Defendants' recent admissions in the Hughes case, the chemical methods of execution they use are similar to those that have been enj oined by other courts in response to constitutional arguments similar to those made here. See Morales v. Hickman, _ F. Supp.
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2d _,2006 WL 335427, at 8 (N.D. Cal. Feb. 14,2006); Crawford v. Taylor, 546 U.S. _, No. 05A705 (Feb. 1,2006); Rutherfordv. Crosby, _ S.Ct. _, 2006 WL 229013 (Jan. 31, 2006); Hill v. Crosby, _ S.Ct. _, 2006 WL 171583 (Jan. 25, 2006).
28. On February 8, 2006, Mr. Maturino Resendiz submitted to the TDCJ a grievance form prepared and filled in by counsel protesting the suspected proposed execution methods and procedures and the secrecy surrounding them. On February 21,2006, the TDCJ issued an official response indicating that Mr. Maturino Resendiz could not utilize the TDCJ grievance system because he is currently incarcerated in the Harris County jail.
29. Mr. Maturino Resendiz has not been dilatory in filing his § 1983 action. As noted above, the protocols for execution by lethal injection in Texas are not fixed by court order or statute but left to the discretion ofthe Defendant TDCJ officials. Until very recently those protocols and procedures have been kept secret and the subject of speculation. Less than two weeks ago, on February 21, 2006, TDCJ publicly acknowledged that neither physicifUls nor other trained health care professionals are involved in the administration of the chemicals it utilizes in executions by lethal injection. Less than one week ago, on March '6, 2006, the Texas Attorney General admitted that the chemicals used in Texas lethal injections are the chemicals described above, the very chemicals identified on information and belief in the grievance submitted last month on Mr. Maturino Resendiz' behalf.
30. The facts regarding the unnecessary and real risk ofsuffering caused by the use on humans of execution protocols such as those the Defendants use became generally known only when, in 2005, Dr. David A. Lubarksy and three co-authors published in the world-renowned medical journal The Lancet the results of their research on the effects of chemicals in lethal injections. See Koniaris L.G., Zimmers T.A., Lubarsky D.A., Sheldon J.P., Inadequate
I
Anesthesia in Lethal Injection for Execution, Vol. 365, THE LANCE'f 1412-14 (Apr. 16, 2005). The Lancet scholars found that, in the autopsies and toxicology,reports provided by lethal-injection jurisdictions, 43% ofthe executed inmates had concentra~ons consistent with awareness. In response to similar concerns, the U.S. District Court for $e Northern District of California recently ordered that an anesthesiologist independently verify, through direct observation and examination, that the plaintiff in fact is unconscious before either pancuronium bromide or potassium chloride is injected. See Morales v. Hickman, _ F. Supp. 2d _,2006 WL 335427, at 8 (N.D. Cal. Feb. 14,2006).
31. Mr. Maturino Resendiz presents this complaint at an earlier stage in the appellate process than any petitioner in the lethal injection cases considered by the Fifth Circuit to date. He was sentenced to death less than six years ago. His first federal habeas corpus petition was dismissed in September 2005. His appeal regarding that decision is currently pending in the Fifth Circuit Court of Appeals. Nonetheless, the Harris County district court prematurely scheduled his execution for May 10, 2006, over objection.
32. Moreover, Mr. Maturino Resendiz's challenge does "not unduly threat~n the state's ability to carry out the scheduled execution[,]" Harris v. Johnson, 376 F.3d 414, 416 (5th Cir. 2004) (citing Nelson v. Campbell, 541 U.S. 637, 645-48 (2004)), because he proposes
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alternative methods of execution by lethal injection that the Defendants can readily implement before May 10, 2006.
VI. Claims
33. By virtue of the above stated facts, Defendants Brad Livingston, Doug Dretke, Charles O'Reilly, and Unknown Executioners are about to deprive Mr. Maturlno Resendiz of his rights under the Eighth and Fourteenth Amendments to be free from cruel and unusual punishment, in violation of 42 U.S.C. § 1983.
34. Mr. Maturino Resendiz has no adequate remedy at law for the constitutional violations above-described.
VII. Prayer for Relief
35. Plaintiff, on behalf of Mr. Maturino Resendiz, requests that this Court grant a permanent injunction barring Defendants from executing him in the unnecessarily cruel manner described above, or in any manner that presents similar, wholly unne~essary risks he will experience extreme and purposeless pain.
36. Plaintiff requests that this Court grant reasonable attorneys' fees pursuant to 42 U.S.C. § 1988 and the laws ofthe United States, as well as for costs of suit and any further reliefthat this Court deems just and proper.
Respectfully submitted,
Jared Tyler Texas Bar No. 24042073
TEXAS INNOCENCE NETWORK
University of Houston Law Center 100 Law Center Houston, Texas 77204-6060 TEL: (713) 743-8592 FAX: (713) 743-2131
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 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

CARLOS GONZALEZ MAGALLON, §

Consul General of Mexico and Next §

Friend of Angel Maturino Resendiz, §

Plaintiff, §

§

v.

§

§

BRAD LIVINGSTON,

§

Executive Director, Texas

§

Department of Criminal Justice,

§

§

DOUG DRETKE, Director, Texas

§

Department of Criminal Justice,

§

Correctional Institutions Division,

§

§

CHARLES O’REILLY,

§

Senior Warden, Huntsville Unit,

§

§

and

§

§

UNKNOWN EXECUTIONERS,

§

Defendants. §

CIVIL ACTION NO. H-06-818

DEFENDANTS’ MOTION TO DISMISS WITH BRIEF IN SUPPORT

This is a federal civil rights proceeding initiated by Plaintiff Carlos Gonzalez Magallon on behalf of Angel Maturino Resendiz, a death-sentenced Texas inmate, pursuant to 42 U.S.C. § 1983. Resendiz is scheduled for execution on May 10, 2006 for the 1998 capital murder of Claudia Benton during the course of committing or attempting to commit burglary, aggravated sexual assault, and robbery. Resdendiz previously and unsuccessfully challenged the constitutionality of his conviction and death sentence in both state and federal courts. Magallon now alleges that the method of Resendiz’s execution violates his right to be free from cruel and unusual punishment as defined by the Eighth and Fourteenth

Amendments and Articles Six and Seven of the International Covenant on Civil and Political Rights (ICCPR). Amended Complaint at ¶1. He requests a permanent injunction and a stay of execution. Id. at ¶38-39. However, this Court lacks jurisdiction to consider Magallon’s “next friend” complaint. Alternatively, because Fifth Circuit precedent forecloses the requested relief, Magallon’s complaint must be dismissed with prejudice under FED. R. CIV. P. 12(b). I. Magallon Lacks Standing to Pursue this Lawsuit as “Next Friend”; Thus, the
Court Should Dismiss for Lack of Jurisdiction. Circuit precedent is clear that “‘[n]ext friend’ petitions are permitted only if it is clearly demonstrated that the individual is unable to seek relief on his own behalf or is mentally incompetent to do so.” Lovelace v. Lyanaugh, 809 F.2d 1136, 1137 (5th Cir. 1987) (citing Gilmore v. Utah, 429 U.S. 1012, 1014 (1976)). The burden of showing that a death-sentenced inmate is incompetent is on the person seeking to act on his behalf. Rumbaugh v. Procunier, 753 F.2d 395, 398-99 (5th Cir. 1985); Weber v. Garza, 570 F.2d 511, 513-14 (5th Cir. 1978). The failure to make such a showing deprives this Court of jurisdiction to consider Magallon’s complaint. Hamilton v. Collins, 905 F.2d 825, 828–29 (5th Cir. 1990); Lovelace, 809 F.2d at 1138 (citing Rumbaugh, 753 F.2d at 398). Magallon merely alleges — without one iota of evidence — that Resendiz is incompetent due to mental illness. Amended Complaint at ¶2. This is not enough and, as a result, this Court has no jurisdiction whatsoever in this matter. Magallon’s complaint must be dismissed. II. Nevertheless, Magallon Is Not Entitled to Relief Because He Delayed Unnecessarily in Bringing His Complaint. Neither is Magallon entitled to equitable relief because his complaint is dilatory.
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Because Magallon waited until eight weeks before Resendiz’s scheduled execution to seek relief, Fifth Circuit precedent compels that his suit be dismissed. See Harris v. Johnson, 376 F.3d 414, 417 (5th Cir. 2004) (noting that where prisoner waited years on death row but sought relief ten weeks before execution, prisoner’s real goal was not to change method of execution but to delay execution). Magallon argues that he could not have filed it sooner. Amended Complaint at ¶¶29-31. But where a prisoner challenges the method of execution on grounds that it will subject him to cruel and unusual punishment and he waits until his execution is imminent before seeking a remedy, relief is precluded. See Gomez v. U.S. Dist. Ct. for the N.D. Calif., 503 U.S. 653, 654 (1992) (precluding equitable relief for inmate who waited until his execution was imminent before suing to enjoin the State’s method of carrying it out); Harris, 376 F.3d at 417.
In deciding whether to grant equitable relief, a court may consider the last-minute nature of an application. Gomez, 503 U.S. at 654. A prisoner need not — indeed cannot — wait until his execution is scheduled or until his federal habeas corpus appeals are exhausted before challenging the method of execution. See Harris, 376 F.3d at 417. The prisoner may challenge the method of execution as soon as his sentence becomes final at the expiration of direct review. Neville v. Johnson, — F.3d —, 2006 WL 291292, *1 (5th Cir. Feb. 8, 2006) (citing White v. Johnson, 429 F.3d 572, 574 (5th Cir. 2005)).
Magallon implies that Texas is free to unilaterally alter its lethal injection protocol. Amended Complaint at ¶¶9, 26, 29. But the lethal injection protocol used by the State has remained largely unchanged since it was first used in 1982, and Magallon has provided nothing to show that the protocol will change within the next several weeks. More importantly, Magallon has been on notice of the combination of chemical agents used in executions since Resendiz’s death sentence was first imposed in May 2000, and at least since
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his death sentence became final on May 3, 2004.1 Resendiz v. State, 112 S.W.3d 541 (Tex. Crim. App. 2003), cert. denied, 541 U.S. 1032 (2004). Moreover, Resendiz’s federal habeas corpus petition was denied by this Court on September 7, 2005. Resendiz v. Dretke, No. H05-1604 (S.D. Tex. 2005). Thus, even assuming arguendo that Magallon was required to wait until Resendiz’s execution was imminent to file this complaint, his execution has been, for all intents and purposes, imminent for more than six months.2
In short, Magallon could have raised the instant challenge long ago. See, e.g., Woolls v. McCotter, 798 F.2d 695, 697-98 (5th Cir. 1986); Ex parte Granviel, 561 S.W.2d 503, 508 (Tex. Crim. App. 1978); State v. Webb, 750 A.2d 448, 451 (Conn. 2000) (all discussing expert testimony regarding the effect of each chemical agent – coinciding with those used in Texas – and the result of introducing those agents in a similarly coinciding specific dosage and order). Magallon offers no legitimate reason for delaying this suit. See Gomez, 503 U.S. at 653-54 (“[Gomez] has made no convincing showing of cause for his failure to raise this claim in his prior petitions. ... Equity must take into consideration the State’s strong interest in proceeding with its judgment and [petitioner’s] obvious attempt at manipulation”); Harris,

1

Magallon erroneously suggests that the lethal injection protocols were kept secret

until March 2006. Amended Complaint at ¶¶9-10, 26, 29. Yet even cursory legal research reveals

significant details concerning that protocol in published opinions as early as June 29, 2004. See, e.g.,

Harris v. Johnson, 323 F.Supp.2d 797, 800 (S.D. Tex. 2004).

2

Magallon argues that he “presents this complaint an earlier stage in the appellate

process than any petitioner in the lethal injection cases considered by the Fifth Circuit to date.”

Amended Complaint at ¶31. This is not entirely true. Resendiz defaulted his appeal to the Fifth

Circuit by not filing a timely notice of appeal. In fact, his motion to reopen the time for filing a

notice of appeal pursuant to FED. R. APP. P. 4(a)(6) was denied by this Court more than four months

ago. At a minimum, Magallon was aware the Fifth Circuit would lack jurisdiction to hear

Resendiz’s appeal — and that his habeas corpus proceeding was effectively concluded — at that

time.

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376 F.3d at 418 (“For the entirety of his eighteen years on death row, Harris knew of the state’s intention to execute him in this manner. It was during that period ... that he needed to file this challenge”).
To hold otherwise would allow prisoners to delay their executions indefinitely by filing a succession of state and federal appeals. Cf. Kutzner v. Cockrell, 303 F.3d 333, 338 (5th Cir. 2002) (“Allowance of a stay of execution under these circumstances would signal tacit approval of endless stays for the preparation of endless successive petitions”). Before enjoining an execution, a federal court must “give substantial weight to any adverse impact” such an injunction would have on the “operation of a criminal justice system.” 18 U.S.C. § 3626(a)(1) (quoted in Nelson v. Campbell, 541 U.S. 637, 649 (2004)). This Court must consider the impact on not only the State’s interest in this particular case, but on the criminal justice system as a whole. To entertain Magallon’s complaint would reward late filers and give rise to yet another round of appeals for all death-sentenced inmates who have exhausted their state and federal habeas appeals. This result does not accord with the intent of Congress as reflected by the passage of the Antiterrorism and Effective Death Penalty Act of 1996: to stop decades-long litigation in death penalty cases. See Harris, 376 F.3d at 416 (precluding injunctive relief for inmate who had been on notice of execution procedure for duration of confinement on death row). Hence, Magallon is not entitled to relief, and his complaint should be dismissed. III. In Any Event, Magallon’s Complaint Is Frivolous.
Magallon’s complaint faces not only procedural and equitable bars; it also may be dismissed on the merits. See Nelson, 541 U.S. at 649 (quoting 42 U.S.C. § 1997e(c)(1): “The Act mandates that a district court ‘shall,’ on its own motion, dismiss ‘any action brought with respect to prison conditions under section 1983 of this title ... if the court is satisfied that the
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action is frivolous, malicious, [or] fails to state a claim upon which relief can be granted ...”). The government may not impose “cruel and unusual punishments,” U.S. CONST.,
amend. VIII,3 and in the execution of a death sentence it may not inflict “unnecessary pain.” Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464 (1947). A method of execution amounts to cruel and unusual punishment where it creates a substantial risk of wanton and unnecessary infliction of pain, torture, or lingering death. Webb, 750 A.2d at 455 (citing Campbell v. Wood, 18 F.3d 662, 683 (9th Cir. 1994); Resweber, 329 U.S. at 464; Gregg v. Georgia, 428 U.S. 153, 173 (1976)).
Based on the rejection of this identical claim in sister courts, both state and federal, Magallon’s complaint is insufficient on its face to show an Eighth Amendment violation. He does not allege that the chemicals used in lethal injection will cause suffering; he only argues suffering is a possibility. Such a showing is not sufficient. See, e.g., Cooper v. Rimmer, 379 F.3d 1029, 1031-33 (9th Cir. 2004) (concluding that inmate fell short of showing unnecessary risk of unconstitutional pain or suffering and quoting district court’s determination based on expert testimony that inmate “has done no more than raise the possibility that California’s lethal-injection protocol risks an unconstitutional level of pain and suffering”); Reid v. Johnson, 333 F. Supp. 2d 543, 551 (E.D. Va. 2004) (“the probability that the inmate would be conscious of the physical effects of pancuronium is less than 1/100 of one percent” and finding that the risk of pain is “so remote as to be nonexistent”); Webb,

3

Magallon also bases his complaint on the Articles Six and Seven of the ICCPR.

Amended Complaint at ¶¶1, 5, 35. However, “the Senate has declared Articles 1-27 of the ICCPR

not self-executing, meaning that they cannot be in effect as law in the United States without action

by Congress incorporating the provisions into domestic law.” Lagrone v. Cockrell, No. 02-10976,

2003 WL 22327519, *13 (5th Cir. 2003) (citing Beazley v. Johnson, 242 F.3d 248, 267-68 (5th Cir.

2001)) (unpublished opinion). Thus, Magallon’s ICCPR arguments should be disregarded.

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750 A.2d at 455 (concluding based on expert testimony that there is no reason to believe that under routine execution inmate would experience anything more than insertion of intravenous injection followed by unconsciousness); Ex parte Granviel, 561 S.W.2d at 508 (rejecting challenge to state’s use of sodium thiopental and discussing expert testimony that drug takes effect within moments); see also Kelly v. Lynaugh, 862 F.2d 1126, 1135 (5th Cir. 1988); Woolls, 798 F.2d at 697-98; Sims v. State, 754 So.2d 657 (Fla. 2000).
Nor should the Supreme Court’s grant of certiorari review in Hill v. Crosby, 126 S. Ct. 1189 (Jan. 25, 2006), influence this Court’s decision. Fifth Circuit precedent remains binding until the Supreme Court gives contrary guidance. Smith v. Johnson, — F.3d —, 2006 WL 330114, *1 (5th Cir. Feb. 14, 2006) (citing Neville, 2006 WL 291292, *1)).
Furthermore, the grant of certiorari does not support Magallon’s claim. The Court’s order shows that it granted review not on substantive but on procedural grounds. The order specifies the questions presented as follows: (1) whether a complaint brought under 42 U.S.C. § 1983 by a death-sentenced state prisoner, who seeks to stay his execution in order to pursue a challenge to the chemicals utilized for carrying out the execution, is properly recharacterized as a habeas corpus petition under 28 U.S.C. § 2254; and (2) whether, under the Court’s decision in Nelson, a challenge to a particular protocol the State plans to use during the execution process constitutes a cognizable claim under 42 U.S.C. § 1983. See http://www.supremecourtus.gov/qp/05-08794qp.pdf.
The procedural nature of the certiorari grant in Hill is illustrated also by the Supreme Court’s recent order vacating a stay of execution granted by the Seventh Circuit in an Indiana case. See Donahue v. Bieghler, 126 S. Ct. 1190 (Jan. 27, 2006). The dissent in the Seventh Circuit explained why the Supreme Court’s grant of certiorari review in Hill should not undermine Fifth Circuit precedent requiring dismissal by this Court:
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The Supreme Court’s grant of a stay and certiorari in Hill v. Crosby [] will allow it to answer the question left open in Nelson v. Campbell; namely, “whether civil rights suits seeking to enjoin the use of a particular method of execution — e.g., lethal injection or electrocution — fall within the core of federal habeas corpus, or, rather whether they are properly viewed as challenges to the conditions of a condemned inmate’s death sentence.” 541 U.S. [at] 643-44 []. The answer to this question is important, because if the claim is viewed as one of habeas, as the Eleventh Circuit did in Hill, then the result is denial of the application because such a claim cannot be redressed under 28 U.S.C. § 2254. See Hill v. Crosby, No. 06-10621, 2006 WL 163607, *1 (11th Cir. Jan. 24, 2006). In this case, the parties and the district court have assumed that the answer to the question posed in Hill is favorable to Bieghler, meaning it is proper to consider Bieghler’s claims under § 1983. Therefore, we need not wait for the Supreme Court's decision in Hill. The district court considered Bieghler’s request for equitable relief and found it lacking, largely because Bieghler waited until the day before his execution to make the request. This ruling is consistent with the guidance provided by the Supreme Court in Nelson, and I see no reason to disturb it. Nelson, 541 U.S. at 650 (“Given the State’s significant interest in enforcing its criminal judgments, ... there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay”).
Bieghler v. Donahue, No. 06-1300, 2006 WL 229027, *1-2 (Jan. 26, 2006) (Kanne, J.,
dissenting) (unpublished order).
Further, the Supreme Court, both before and after Nelson, has consistently rejected
similar complaints. After granting certiorari review in Nelson but before issuing its opinion,
the Court denied stays in the following Texas cases challenging the state’s method of lethal
injection: Bruce v. Johnson, 540 U.S. 1146 (Jan. 14, 2004); Zimmerman v. Johnson, 540 U.S.
1159 (Jan. 21, 2004); and Vickers v. Johnson, 540 U.S. 1170 (Jan. 28, 2004).
During that same period, the Supreme Court also (1) vacated a stay from the Tenth
Circuit Court of Appeals on a similar challenge to Oklahoma’s method of lethal injection,
Ward v. Darks, 540 U.S. 1146 (Jan. 13, 2004); (2) denied an application for a stay on a
-8-

similar challenge to Ohio’s method of lethal injection, Williams v. Taft, 540 U.S. 1146 (Jan. 13, 2004); and (3) vacated a stay entered by the United States District Court for the Eastern District of North Carolina on a similar challenge to North Carolina’s method of lethal injection. Beck v. Rowsey, 540 U.S. 1098 (Jan. 8, 2004).
After Nelson, the Supreme Court (1) vacated a stay entered by the United States District Court for the District of Maryland on a similar challenge to Maryland’s method of execution in Sizer v. Oken, 542 U.S. 916 (June 16, 2004); (2) denied an application to stay or vacate the Fifth Circuit’s order rejecting an identical claim in Harris v. Johnson, 542 U.S. 952 (June 30, 2004); and (3) most recently, in Reid v. Johnson, 542 U.S. 963 (Sept. 9, 2004), denied the application for preliminary injunction that had been rejected by the United States District Court for the Eastern District of Virginia and the Fourth Circuit Court of Appeals in a challenge to Virginia’s method of execution.
Finally, since the Supreme Court granted certiorari review in Hill, the Court has repeatedly turned back challenges to lethal injection protocol used by Texas. See, e.g., Hughes v. Livingston, — S. Ct. —, 2006 WL 637122 (Mar. 15, 2006); Smith v. Livingston, 126 S. Ct. 1294 (Feb. 15, 2006); Neville v. Livingston, 126 S. Ct. 1192 (Feb. 8, 2006); Elizalde v. Livingston, 126 S. Ct. 1191 (Jan. 31, 2006).
CONCLUSION For the foregoing reasons, the Defendants respectfully request that the Court dismiss Magallon’s complaint for lack of jurisdiction. Alternatively, the Defendants ask that the Court dismiss the complaint because it is both dilatory and frivolous.
-9-

*Attorney-in-charge

Respectfully submitted,
GREG ABBOTT Attorney General of Texas
BARRY R. McBEE First Assistant Attorney General
DON CLEMMER Deputy Attorney General for Criminal Justice
GENA BUNN Chief, Postconviction Litigation Division
s/ Edward L. Marshall *EDWARD L. MARSHALL Deputy Chief, Postconviction Litigation Division Texas Bar No. 00797004 Southern District Bar No. 22642
P. O. Box 12548, Capitol Station Austin, Texas 78711 Tel: (512) 936-1400 Fax: (512) 320-8132 Email: elm@oag.state.tx.us
ATTORNEYS FOR RESPONDENT

-10-

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing pleading was served electronically, on the 28th day of March, 2006, to Jared Philip Tyler at jptyler@central.uh.edu and to Tim Ford at TimF@MHB.com.
s/ Edward L. Marshall EDWARD L. MARSHALL Deputy Chief, Postconviction Litigation Division
-11-

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

CARLOS GONÁLEZ MAGALLÓN,

§

Consul General of Mexico and Next

§

Friend of Angel Maturino Resendiz,

§

§

Plaintiff,

§

§

v.

§

§

BRAD LIVINGSTON, et al.,

§

§

Defendants.

§

CIVIL ACTION NO. H-06-818

MEMORANDUM AND OPINION

Carlos González Magallón, the Consul General of Mexico (“the Consul General”),

has filed a civil rights complaint pursuant to 42 U.S.C. § 1983 as the “next friend” of Angel

Maturino Resendiz (“Resendiz”), a Texas death row inmate. The Consul General argues that

the Texas lethal-injection protocol violates the Eighth Amendment’s protection against cruel

and unusual punishm ents. The defendants ha ve filed a m otion to dism iss, arguing that

federal precedent forecloses relief on the Consul General’s com plaint. For the reasons

discussed below, this court grants the defendants’ m otion and dism isses this c ase with

prejudice.

Resendiz was convicted of capital murder and sentenced to death in May 2000. The

Texas Court of Crim inal Appeals affirmed his conviction and sentence on direct review.

Resendiz v. State, 112 S.W.3d 541 (Tex. Crim . App. 2003). The Suprem e Court denied

certiorari review on May 3, 2004. Resendiz v. Texas, 124 S. Ct. 2098 (2004). Resendiz

sought state habeas review concurrent to his direct appeal. The Court of Criminal Appeals denied state habeas relief on March 3, 2004. Ex parte Resendiz, No. 58,172, 2004 W L 885742 (Tex. Crim. App. 2004) (unpublished).
Resendiz filed a federal petition for a writ of habeas corpus on May 3, 2005R.esendiz v. Dretke, No. 05-CV-1604 (S.D. Tex.). On Septem ber 7, 2005, this court denied habeas relief, dismissed Resendiz’s petition, and declined to certify any issue for appellate review. Resendiz’s court-appointed counsel, Leslie Michael Ribnik, failed to file a timely notice of appeal from this court’s final judgment. Robert C. Owen agreed to represent Resendiz to attempt appellate review of the federal habeas action. Resendiz’s appeal from this court’s refusal to extend the time to appeal remains pending in the Fifth Circuit Court of Appeals. Resendiz v. Dretke, No. 05-70058 (5th Cir.).
In December 2005, Texas set Resendiz’s execution for May 10, 2006. On March 10, 2006, two months before Resendiz’s initial execution date, the Consul General filed the instant lawsuit. The State of Texas has recently reset Resendiz’s execution date for June 27, 2006, apparently to allow time for psychiatric evaluation.
The Consul General’s complaint objects to the chemicals Texas uses in its execution protocol. The Texas statute governing lethal injection states that the executioner will carry out a capital inm ate’s sentence, but does not pr escribe specific substances for use in the execution. See TEX. CODE CRIM. PRO. art. 43.14. The Consul General objects to Texas’s use of a three-drug com bination of sodium thiopental or sodium penotothal, pancuronium bromide or Pavolon, and potassium chloride. The Consul General alleges that the
2

combination of these drugs temporarily sedates and then paralyzes a prisoner, which could mask the potentially excruciating pain during the cardiac arrest that follows. The Consul General argues that this risk of pain is unnecessary to the implementation of the execution process. The Consul Ge neral asks this court to stay Resendiz’s execution and to enjoin Texas from using its current protocol.
The defendants argue tha t the Consul General’s com plaint is procedurally and substantively defective. First, the defendants argue that the Consul General has no standing to enforce Resendiz’s rights. Second, the defendants contend that the Consul General’s failure to file this suit until Resendiz’s ex ecution was imminent prevents this court from considering the merits of the constitutional challenge. Finally, the defendants urge that the Texas lethal injection protocol complies with the Constitution.
In response to the defendants’ challenge tohis standing, the Consul General justifies his role as Resendiz’s “next friend” as follows: “unlike the prisoners in [prior Fifth Circuit lethal injection cases] Mr. Maturino Resendiz was not able to handle his own affairs and from the time his conviction becam e final until shortly before he filed this action he was represented by court appointed counsel who, it is now apparent, was not acting in his interests.” (Docket Entry No. 10 at 8). The Consul General argues that Resendiz’s mental state, which has been at issue throughout his legal proceedings, prevents his execution and warrants the Consul General’s status as Resendiz’s “next friend” under Rule 17(c) of the Federal Rules of Civil Procedure.
“The burden is on the ‘next friend’ clearly to establish the propriety of his status and
3

thereby justify the jurisdiction of the court.” Whitmore v. Arkansas, 110 S. Ct. 1717, 1727
(1990). Under Rule 17(c),
[w]henever an infant or ni competent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. An infant or incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an infant or incom petent person not otherwise represented in an action or shall m ake such other order as it deem s proper for the protection of the infant or incompetent person.
FED. R. CIV. P 17(c). Rule 17(c) does not require the appointment of a guardian ad litem or
“next friend” if the incompetent person’s “interests are otherwise adequately represented and
protected[.]” Adelman on Behalf of Adelman v. Graves, 747 F.2d 986, 989 (5th Cir. 1984);
see also Krain v. Smallwood, 880 F.2d 1119, 1121 (9th Cir. 1989) (“[T]he court may find
that the incompetent person’s interests would be adequately protected by the appointment of
a lawyer.”); Westcott v. United States Fidelity & Guaranty Co. , 158 F.2d 20, 22 (4th Cir.
1946) (affirming judgment against minor who was represented by an attorney but not a
guardian ad litem).
In essence, the Consul General argues that neither he nor Resendiz could have filed
a lethal-injection challenge earlier because of Resendiz’s incom petence and his form er
counsel’s deficient representation. The problem with this argum ent is that capable legal
counsel agreed to represent Resendiz when his failure to file a timely appeal was discovered.
Competent counsel is now trying to obta in appellate review of Resendiz’s initial habeas
4

action.1 The Consul General’s argument does not excuse the belated assertion of this suit. The Consul General provides no justification for “next friend” standing when a competent attorney represents Resendiz.
Nothing in the docum entation the Consul General supplies suggests that, even considering the evidence of mental illness, Resendiz lacks the ability to understand the nature of the legal proceedings brought in his behalf or to communicate with his attorney.2 None of the medical opinions the Consul General cites conclude that Resendiz cannot consult with a lawyer with a reasonable degree of rational understanding. The proffered evidence bears on Resendiz’s ability to com prehend the finality of his death, not a present incapacity to understand legal proceedings. Moreover, Resendiz’s m ental state remains in dispute and presently is under examination in state court. A federal declaration of incompetency, on this record, is premature and inappropriate, but the information submitted does not justify the Consul General’s requested “best friend” status.
In addition, the tim ing of this lawsuit requires this court to consider Fifth Circuit precedent refusing to consider the merits of a death row inmate’s legal challenge when the inmate has “‘delayed unnecessarily in bringing his claim.’” Harris v. Johnson, 376 F.3d 414, 416 (5th Cir. 2004) (quoting Nelson v. Campbell, 124 S. Ct. 2117, 2126 (2004)); see also

1

Unlike the situation in Zaro v. Strauss, 167 F.2d 218, 220 (5th Cir. 1948), where the

Fifth Circuit found that the repr esentation by the defendant’s attorney did not com ply with Rule

17(c), nothing in the record before this Court quetsions the adequacy of the representation provided

by Resendiz’s current counsel.

2

In fact, the Consul General submits an affidavit fromResendiz’s current attorney that

lacks any mention of a communication problem.

5

Smith v. Johnson, 440 F.3d 262, 263 (5th Cir. 2006); Neville v. Johnson, 440 F.3d 221, 222 (5th Cir. 2006); White v. Johnson, 429 F.3d 572, 574 (5th Cir. 2005). 3 The Fifth Circuit strongly discourages the filing of such lawsuitsafter an execution date is set. The challenge raised in this case could have been raised ealrier; the Fifth Circuit has found that method-ofexecution claims become ripe after the finality of direct review. See White, 429 F.3d at 574. As the Fifth Circuit has noted method-of-execution challenges filed after the setting of an execution date m ay be file d “to seek a delay of his execution, not m erely to effect an alteration of the manner in which it is carried out.” Harris, 376 F.3d at 418.
The Consul General lacks standing to prosecute this action on Resendiz’s behalf. This court grants the defendant’s motion to dismiss [Doc. # 6]and dismisses the Consul General’s Complaint [Doc. # 1] with prejudice.
SIGNED on April 27, 2006, at Houston, Texas.
______________________________________ Lee H. Rosenthal
United States District Judge

3

The Fifth Circuit has reached sim ilar conclusions in unpublished decisions. See

Kincy v. Livingston, 2006 WL 775126 (5th Cir. Mar. 27, 2006) ; Hughes v. Livingston, 2006 WL

637906 (5th Cir. March 14, 2006); Elizalde v. Livingston, No. 06-70002 (5th Cir. Jan. 30, 2006).

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

)

Carlos Gonzalez Magallon,

)

Consul General of Mexico and Next Friend of )

Angel Maturino Resendiz,

)

Plaintiff,

)

v.

)

)

Brad Livingston,

)

Executive Director,

)

Texas Department of Criminal Justice,

)

)

Doug Dretke,

)

Director, Correctional Institutions Division,

)

Texas Department of Criminal Justice,

)

)

and

)

)

Unknown Executioners,

)

Defendants.

)

)

No.4:06-cv-818 (death penalty case)
MOTION TO ALTER OR AMEND THE JUDGMENT PURSUANT TO F.R.C.P. 59(e)

Plaintiff hereby Moves to Alter or Amend the Judgment and Order issued April 27, 2006,

pursuant to Federal Rule of Civil Procedure 59(e).1

The Opinion should be altered or amended to correct an apparent editing error which

appears at page 5, Line 13, in the sentence ofthe Opinion that announces the Court's judgment.

That sentence mistakenly uses the phrase "best friend" instead of "next friend."

Plaintiffmakes this Motion without waiving any of the arguments previously made in

opposition to the Motion to Dismiss. Plaintiff respectfully maintains that he has proper standing

and the Court's announced decision to dismiss for lack ofjurisdiction based on standing

contravenes the express provisions of Federal Rule of Civil Procedure 17(a) and (c) regarding

1 Although the Court has not technically issued a separate document judgment under Federal Rule of Civil Procedure 58(a), the Court's April 27, 2006, Order of dismissal makes clear the Court's intention thatjudgment will be entered against plaintiff; and plaintiff wishes to appeal that judgment without delay,
MOTION TO ALTER OR AMEND - 1

both the substantive standard for next friend representation and the remedy for improperjoinder.
See Plaintiffs Resp. to Mot. Dism. at 1-6.
Plaintifffiuther respectfully submits that the decisions cited in support ofthe Court's
decision do not support its announced judgment and in fact support plaintiff s his position. See Adelman on behalfojAdelman v. Graves, 747 F.2d 986,988 (5th Cir. 1984) (reversing order of
dismissal because district court did not meet its "primary concern ... to assure that ... [the
incompetent person's] interests in vindicating his statutory and constitutional rights are properly
protected."); Krain v. Smallwood, 880 F.2d 1119, 1121 (9th Cir. 1989) (reversing order of
dismissal against pro se plaintiff where a "substantial question exists regarding the competence" of the plaintiff); Zaro v. Strauss, 167 F.2d 218,220 (5th Cir. 1948) (disregarding as irrelevant fact
that incompetent person was "otherwise represented"). Westcott v. United States Fidelity & Guaranty Co., 158 F.2d 20,22 (4th Cir. 1946), also cited by the court, is inapposite. There a
defendant moved for appointment of a guardian ad litem in an untimely fashion as a litigation
tactic. Plaintiff has not asked the Court to appoint anyone and is seeking to move forward toward a resolution of the serious substantive issues raised by this complaint.
Even if the Court will not reconsider its decision on the merits, however, clearly the
editing error identified above needs to be corrected.
Respectfully submitted,
/s/ Timothy K. Ford Timothy K. Ford WSBA No. 5986 MacDonald Hoague & Bayless 705 Second Avenue, Suite 1500 Seattle, Washington 98104 (206) 622-1604 PHONE (206) 343-3961 FAX timf@mhb.com
MOTION TO ALTER OR AMEND - 2

Jared Philip Tyler Texas Innocence Network 100 Law Center Houston, Texas 77024 (713) 743-8592 PHONE (713)743-2131 FAX jptyler@central.uh.edu Attorneys for Plaintiff Carlos Gonzalez Maga1l6n, Consul General of Mexico and Next Friend of Angel Maturino Resendiz
MOTION TO ALTER OR AMEND - 3

CERTIFICATE OF SERVICE I certify that on the 1st day of May, 2006, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF System which will send notification of such filing to the following: Gena Blount Bunn gena.bunn@oag.state.tx.us, laura.haney@oag.state.tx.us Jared Philip Tyler jptyler@centra1.uh.edu and I sent a separate copy electronically to: Edward L. Marshall elm@oag.state.tx.us
lsi Linda M. Thiel Linda M. Thiel Legal Assistant
MOTION TO ALTER OR AMEND - 4

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

CARLOS GONÁLEZ MAGALLÓN, §

Consul General of Mexico and Next §

Friend of Angel Maturino Resendiz §

Plaintiff,

§

§

v.

§

§

§

BRAD LIVINGSTON, et al.,

§

Defendants.

§

CIVIL ACTION NO. H-06-0818

ORDER

On April 28, 2006, this Court denied Carlos González Magallón (“the Consul

General”) leave to file a lawsuit as th e “next friend” of Angel Maturino Resendiz.

(Docket Entry No. 13). The Consul General has filed a motion pursuant to FED. R.

CIV. P. 59(e) seeking the alteration of a typographical error and the revocation of this

Court’s dismissal of his case. This Court finds that the Consul General’s request to

alter a typographical error is well taken. The Court clarifies that the Consul General

lacks standing to proceed under “next friend” status. This Court, however, reconfirms

its dismissal of this action.

SIGNED on May 4, 2006, at Houston, Texas.

______________________________________ Lee H. Rosenthal
United States District Judge

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

CARLOS GONÁLEZ MAGALLÓN,

§

Consul General of Mexico and Next

§

Friend of Angel Maturino Resendiz,

§

§

Plaintiff,

§

§

v.

§

§

BRAD LIVINGSTON, et al.,

§

§

Defendants.

§

CIVIL ACTION NO. H-06-818

ORDER ON REMAND

Pursuant to the Order of the United States Court of Appeals for the Fifth Circ uit

issued on June 16, 2006, this court will allow Angel Maturino Resendiz to file an appropriate

motion to be substituted as the proper plaintiff in this action. Resendiz faces an execution

date of June 27, 2006. To allow time to address issues related to the civil-rights complaint

filed in Resendiz’s behalf, this court orders Resendiz to file his motion on or before June 22,

2006.

The Clerk will deliver a copy of this Order to the parties by m ail and facsim ile,

including to Resendiz’s current attorney, Robert C. Owen, at P.O. Box 40428, Austin, Texas

79704 – facsimile number (512) 804-2685.

SIGNED on June 19, 2006, at Houston, Texas.

______________________________________ Lee H. Rosenthal
United States District Judge

 
 IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

UNITED STATE; COURTS

SOUTHERN DISTRICT OF TEXAS

FILED

CARLOS GONZALEZ MAGALLON, §

a JUN 2 2QI)6

Consul General of Mexico and Next

§

Friend of Angel Maturino Resendiz,

§

§

Plaintiff,

§

§

v.

§ CIVIL ACTION NO. H-06-818

§

BRAD LIVINGSTON,

§

Executive Director, Texas

§

Department of Criminal Justice, et ai.,

§

§

Defendants.

§

MOTION TO SUBSTITUTE REAL PARTY IN INTEREST ANGEL MATURINO RESENDIZ AS PLAINTIFF
Undersigned counsel understands this Court to have concluded that it cannot undertake an inquiry under Fed. R. Civ. P. 17(c) without exceeding the scope of the mandate of the Court of Appeals in this matter. That ruling, coupled with the Court of Appeals' apparent view that Mr. Maturino possesses the limited capacity to authorize the present lawsuit notwithstanding his mental illness, constrains the options available to undersigned counsel. These circumstances collectively place undersigned counsel in a position where he must act to avoid waiver of constitutional claims that counsel has no authority to waive. Accordingly, although undersigned counsel continues gravely to doubt Mr. Maturino's competency to proceed, counsel moves the Court to substitute Mr. Maturino as plaintiff.
Respectfully submitted,

R~
Attorney in Charge S.D. Tex. No. 16526 Texas BarNo. 15371950 Owen & Rountree, LLP P.O. Box 40428 Austin, Texas 78704 Tel. 512-804-2661 Fax 512-804-2685
2

CERTIFICATE OF SERVICE

This certifies that a true and correct copy of the foregoing document has been served on counsel for Respondent by placing the same into the United States Mail, first-class postage prepaid, addressed to:

Mr. Ed Marshall

Capital Litigation Division

Office of the Attorney General

P.O. Box 12548

Austin, Texas 78711

~JofL-- _, el~trJnic on the t?;>J day ofJune, 2006, and by

tra?1mission (email) to Mr. Marshall on

the same date.

(

3

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

ANGEL MATURINO RESENDIZ Plaintiff,
v.
BRAD LIVINGSTON, et al., Defendants.

§

§

§

§

CIVIL ACTION NO. H-06-CV-818

§

§

§

§

ORDER

Angel Maturino Resendiz has filed a Motion to Substitute Real Party in Interest Angel

Maturino Resendiz as Plaintiff. (Docket Entry No. 25). The motion is granted.

Resendiz seeks a perm anent injunction barring Texas from using its current lethal

injection protocol. Resendiz is scheduled to be executed on June 27, 2006. No motion to

stay the execution has been filed. If Resendiz intends to file a m otion seeking a stay of

execution, he must do so by 12:00 p.m. on June 25, 2006. The state must file any response

to such a motion by 12:00 p.m. on June 26, 2006. Counsel is directed to file the motion

electronically and to fax a copy to counsel for the Attorney General’s office as well as to this

court’s case manager, Lisa Eddins, at 713-250-5213.

SIGNED on June 23, 2006, at Houston, Texas.

______________________________________ Lee H. Rosenthal
United States District Judge

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

ANGEL MATURINO RESENDIZ,
Plaintiff,
v.
BRAD LIVINGSTON, Executive Director, Texas Department of Criminal Justice, et al.,
Defendants.

§ § § § § CIVIL ACTION NO. H-06-818 § § § § § §

PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION, TEMPORARY RESTRAINING ORDER,
OR STAY OF EXECUTION, AND MEMORANDUM IN SUPPORT

On June 23, the Court filed an Order in this action observing that “[n]o motion to

stay [Mr. Maturino’s] execution has been filed,” and directing that any “motion seeking a

stay of execution” be filed “by 12:00 p.m. on June 25, 2006.” Mr. Maturino files this

Motion in response to the Court’s order. We emphasize, as explained in greater detail

below, that it may not be necessary for the Court to stay Mr. Maturino’s execution, i.e., to

forbid Defendants from carrying out his death sentence by any means whatsoever

pending further order of the Court. This civil rights lawsuit has never been directed at the

fact of Mr. Maturino’s pending execution, but instead at the needless risk of cruelty in the

specific manner by which Defendants propose, expect and intend to carry it out.

Accordingly, Mr. Maturino, consistent with the positions he has taken throughout this

litigation, moves the Court to issue a preliminary injunction prohibiting Defendants from

attempting to execute Mr. Maturino according to the existing Texas lethal injection

1

protocol which is the subject of this civil rights action and to enjoin Defendants from attempting to execute Mr. Maturino in any other manner which would pose a foreseeable risk of subjecting Mr. Maturino to gratuitous and unnecessary pain, until such time as the Court can resolve the merits of the case. As we explain below, however, if the short time remaining before Mr. Maturino’s execution – a time pressure which is not due to any action on Mr. Maturino’s part – makes it impossible for the Court to dispose of the issues necessary to support granting such injunctive relief, the Court should stay Mr. Maturino’s execution under 28 U.S.C. § 1651 until it can do so. In support of which request, Mr. Maturino respectfully would show the Court as follows.
Generally, four conditions must exist before a preliminary injunction may issue. The movant plaintiff must demonstrate (1) a substantial likelihood that he will prevail on the merits and (2) a substantial threat that he will suffer irreparable injury if no injunction is granted. In addition, the Court must consider whether (3) the threatened injury to plaintiff outweighs the threatened harm the injunction may do to defendant; and (4) granting the preliminary injunction will not disserve the public interest. Lake Charles Diesel, Inc. v. General Motors Corp., 328 F.3d 192 (5th Cir. 2003). We address each consideration below.
I. Likelihood of success on the merits The record establishes a substantial likelihood that Mr. Maturino will prevail on the merits of his claims. First, the legal basis for those claims is essentially undisputed. The Court cannot disagree that permitting Defendants to inflict unnecessary pain or suffering in carrying out Mr. Maturino’s death sentence would mock the Eighth Amendment’s prohibition on cruel and unusual punishments. See, e.g., Hill v.
2

McDonough, ___ U.S.___, 2006 WL 1584710 (June 12, 2006) (finding identical claim
properly brought under 42 U.S.C. § 1983); Louisiana ex rel. Francis v. Resweber, 329
U.S. 459, 463 (1947) (opinion of Reed, J.); Furman v. Georgia, 408 U.S. 238, 273 (1972)
(failed execution in Francis, if intentional rather than unforeseen, would have been, like
torture, “degrading and indecent”). Defendants, as state officials responsible for carrying
out an execution, may not employ methods that display deliberate indifference toward
violating rights secured to Mr. Maturino by the Eighth and Fourteenth Amendments. Cf.
Estelle v. Gamble, 429 U.S. 97, 104-05 (1976) (“deliberate indifference to a prisoner’s
serious . . . injury states a cause of action under § 1983.”)
The factual basis for Mr. Maturino’s claims is equally strong, as a review of only
a few relevant paragraphs of the Complaint makes clear:
20. The particular combination of chemicals Defendants intend to administer to Mr. Maturino Resendiz will cause an intolerable risk that he will consciously suffer an excruciatingly painful and protracted death. Creating this risk serves no penological purposes and is wholly unnecessary to the execution process.
21. By implementing these protocols, the Defendants have demonstrated deliberate indifference to the basic human right of condemned individuals not to be subject to a torturous and unnecessarily painful death without the ability to communicate the fact that they are in pain.
22. Texas law and prevailing standards of decency throughout the United States, evidenced in the enactment of laws in many states, prohibit the use of the execution methods proposed by the defendants on animals. In fact, Texas recently passed legislation criminalizing inhumane methods of euthanizing animals, including the use of neuromuscular blocking agents such as pancuronium bromide. See Tex. Health & Safety Code, § 821.052(a) (Vernon Supp. 2004-2005). With this legislation, Texas has joined numerous states with laws recognizing that use of these chemicals would be inhumane in the euthanasia of dogs or cats.…
3

23. It is well known that the risk of suffering caused by the use of methods and chemicals such as those the Defendants use can easily and economically be eliminated. See e.g., 2000 Report of the American Veterinary Medical Association Panel on Euthanasia, 218 Journal of the American Veterinary Medical Association, 669, 681 (2001).
24. The risk of inflicting severe and unnecessary pain and suffering upon Mr. Maturino Resendiz in the lethal injection process is particularly grave in Texas because the procedures and protocols designed by defendants, to the extent known, do not include safeguards regarding the manner in which the execution is to be carried out, do not establish the minimum qualifications and expertise required of the personnel performing the critical tasks in the lethal injection procedure, and do not establish appropriate criteria and standards that these personnel must rely upon in exercising their discretion during the lethal injection procedures. According to Michelle Lyons, spokeswoman for the Texas Department of Criminal Justice, Texas has used volunteers or “execution specialists”, many of whom have military training, for the 359 executions it has conducted since 1982.…
25. There are alternative methods of execution by lethal injection that are less torturous and inhumane by which the defendants could avoid this unconstitutional cruelty. For example, the defendants could omit pancuronium bromide and use a longer-acting sedative administered by a trained anaesthesiologist to eliminate or substantially reduce the risk of consciously suffered pain caused by slow suffocation or the effects of potassium chloride. See Morales v. Hickman, __ F. Supp. 2d __, 2006 WL 335427, at 8 (N.D. Cal. Feb. 14, 2006). There is no legitimate reason the defendants could not modify the protocol for the administration of a death sentence by lethal injection in this manner, and their failure to do so evidences deliberate indifference to the substantial and unnecessary risk of extreme suffering that results from their current practice.
Nor should this Court ignore the fact that other federal district courts around the
country have, in recent weeks, acknowledged the strength of the evidence indicating that
the conventional lethal injection protocol Defendants intend to employ in executing Mr.
Maturino (the “three-drug cocktail”) may inflict unwarranted and excruciating pain in the
process of taking the life of the condemned. For example, on April 28, 2006 the
Southern District of Ohio temporarily enjoined the execution of Ohio death row inmate
4

Jeffery Hill, who had joined a pending action challenging Ohio’s use of the identical “three-drug cocktail” as cruel and unusual punishment. Cooey and Hill v. Taft, et al., No. 2:04-cv-1156 (S.D. Ohio, April 28, 2006) (attached hereto as Exhibit 1). Distinguishing Hill’s case from earlier unsuccessful challenges, the District Court noted “the mounting evidence calling Ohio’s lethal injection protocol, and the same or similar protocols employed by other states, increasingly into question.” Id. at 6 (citing Morales v. Hickman, 415 F.Supp.2d 1037 (N.D. Cal. 2006), aff’d, 438 F.3d 926 (9th Cir. 2006) (execution halted after court imposed requirement that anesthesiologist monitor execution). The same view as to the substance of this claim motivated the Western District of North Carolina to issue a preliminary injunction on April 7, 2006, barring use of the identical lethal injection protocol unless the State guaranteed that the execution would be overseen by personnel with sufficient medical training to ensure that the condemned prisoner would be unconscious prior to and during the administration of pancuronium bromide or potassium chloride. Brown v. Beck, et al., No. 5:06-CT-3018H (W.D. N.C. April 7, 2006). The same growing evidence persuaded the United States District Court for the District of Columbia it was prudent to grant a preliminary injunction staying the execution of three prisoners on the federal Death Row, involving the same challenge to the “three-drug cocktail,” pending the Supreme Court’s decision in Hill, supra. Roane et al. v. Gonzales, et al., No. 1:05-cv-02337-RWR (D. D.C., February 27, 2006) (attached as Exhibit 2). The Supreme Court itself, while considering Hill, stayed an execution in another case presenting the same challenge to the widespread lethal injection protocol, Rutherford v. Crosby, 126 S. Ct. 1191 (Jan. 31, 2006) (granting stay), and in yet another recent case declined to vacate a stay of execution entered by the
5

en banc Eighth Circuit in connection with a lethal-injection lawsuit. Crawford v. Taylor, 126 S. Ct. 1192 (2006) (Mem. Op.) (denying motion to vacate stay).1
As Mr. Maturino’s complaint and supporting evidence and these opinions and
orders make clear, Mr. Maturino has a real and substantial likelihood of prevailing on the merits of his claims if the case proceeds to judgment.2
Another element weighing in Mr. Maturino’s favor is the fact that, unlike the
death-sentenced plaintiffs in some cases, he cannot fairly be accused of having delayed
prosecuting this lawsuit. In Hill, supra, the Supreme Court framed the equitable inquiry
involved in deciding whether to grant a stay as follows: there exists an equitable
presumption against a stay if the “claim could have been brought at such a time as to
allow consideration of the merits without requiring entry of a stay.” Hill, supra at * 8
(citing Nelson v. Campbell, 541 U.S. 637, 650 (2005)). Here, Mr. Maturino brought his
1 As the Court will recall, another Judge of this Court granted a temporary restraining order on the merits of a comparable claim in 2004, although the Court of Appeals subsequently reversed on other grounds. Harris v. Johnson, 323 F. Supp. 2d 797 (S.D. Tex. 2004) (granting TRO on the merits), rev’d, 376 F.3d 414 (5th Cir. 2004) (denying relief on equitable grounds). 2 Little Fifth Circuit authority on the merits question exists, and what exists is out-of-date and primarily concerns challenges to the general concept of execution by lethal injection. See, e.g., Woolls v. McCotter, 798 F.2d 695, 697-98 (5th Cir. 1986) (rejecting arguments against use of sodium thiopental because there was no evidence of improperly administered drugs and no evidence that Texas uses “anyone other than trained medical personnel to administer lethal injections.”); Kelly v. Lynaugh, 862 F.2d 1126, 1135 (5th Cir. 1988) (dismissing challenge to lethal injection without discussion, citing Woolls). Such decisions predate the disclosure of substantial elements of Texas’ lethal injection protocol. Moreover, Mr. Maturino is prepared to present evidence showing, among other things, actual instances of improperly administered drugs and that, contrary to what the Fifth Circuit was led to believe in Woolls, Texas has no “medically trained” individuals observe or participate in the actual administration of the lethal drugs.
6

case at a time when a stay would not have been necessarily required to adjudicate its merits.
This litigation was initiated by filing the grievance required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), on February 8, 2006, over twelve (12) weeks before Mr. Maturino’s then-scheduled execution. The State of Texas made no effort to answer or resolve the issues the grievance raised, but simply rejected it. This civil suit was filed within days after that grievance was rejected, almost nine (9) weeks ahead of the then-scheduled execution date. Immediately after filing and serving it, counsel for Mexico, then proceeding as Mr. Maturino’s next friend, contacted counsel for the Defendants to set a discovery conference; Defendants indicated that they would not participate in any conference or any discovery but instead would seek immediate dismissal of the suit. Defendants stuck to that position even as Mr. Maturino’s execution date was pushed back to June 27, 2006, which would have afforded this Court seven more weeks to consider the merits of his case. As cases in other jurisdictions have shown, it would have been quite feasible to litigate the issues raised in this case in the time that remained before execution when this case was filed, especially once the execution date was extended by seven weeks. See, e.g., Brown v. Beck and Morales v. Hickman, supra. If this Court ultimately proves unable to resolve Mr. Maturino’s claims prior to June 27, it is not because Mr. Maturino dragged his feet in bringing the suit, but because once the suit was underway Defendants did everything they could to avoid addressing the merits.
Nor did the relief requested by Mr. Maturino – changes in Texas’ lethal injection protocol – inherently require a stay of execution. This lawsuit sought to modify the
7

existing Texas execution protocol to provide adequate safeguards against unnecessary
and excruciating pain during Mr. Maturino’s execution. The execution did not need to be
put on hold in order to accomplish this goal. The merits of the lawsuit could easily have
been resolved, and any necessary changes implemented, in the months that have passed
since this issue was first raised. For that reason, as this Court observed in its Order of
June 23, Mr. Maturino never moved this Court to stay his execution, and this Court never
intimated any view that a stay would be required. Accordingly, under the plain language
of Hill and Nelson, there is no basis for finding that Mr. Maturino has unreasonably
delayed seeking the requested relief.
Defendants may be expected to assert that under Hill and Nelson, Mr. Maturino’s
Eighth Amendment claims should be held forfeit simply because this lawsuit was filed after an execution date had been set. That is not, and cannot be, the law.3 Such a blind
refusal to consider other relevant factors before denying relief, of course, is not what
equity is all about, and would collide with the equitable considerations set forth in those
cases and in Gomez v. District Court, 503 U.S. 653 (1992) (cited in both Hill and
Nelson).
In its earlier order, this Court appears to have recognized the problems that would
arise in dismissing this case for inequitable delay. It noted that filing a challenge to the
3 An extreme hypothetical demonstrates the flaw in this reasoning. Assume the State sets a prisoner’s execution date for two years hence. If Hill and Nelson can be read to preclude equitable relief anytime a plaintiff files suit after an execution date has been set, the prisoner in that scenario would be unable to pursue equitable relief – even though, as a practical matter, there would exist ample time to litigate the issues prior to the scheduled execution. The reflexive conclusion that an execution date precludes relief, while easy to administer, cannot be the rule – as the Supreme Court’s decisions in Hill and Nelson make clear. The question is whether the suit was brought early enough to have been resolved in due course notwithstanding any approaching execution date. That was the case here.
8

proposed method of execution after the setting of an execution date “may” be for the purposes of delaying the execution rather than achieving a result on the merits. If such a lawsuit were filed essentially on the eve of execution, that could be a plausible inference. See, e.g., Reese v. Livingston, ___F.3d___, 2006 WL 1681090 (5th Cir. 2006) (affirming denial of equitable relief in lawsuit filed less than 30 days prior to scheduled execution date) (suit filed May 25, 2006, by prisoner facing June 20, 2006 execution date). But the record of this case does not support any such finding against Mr. Maturino, and of course this Court made no such finding that any such dilatory motive or purpose in fact could be imputed to the Consul General of Mexico or to Mr. Maturino in this case. Moreover, this Court’s own findings show that Mr. Maturino was previously represented by incompetent court-appointed counsel, depriving him of any reasonable means of filing this lawsuit before New Years, 2006.
Finally, Mr. Maturino must respectfully point out that the Fifth Circuit made a finding in its recent opinion in this case that weighs strongly in favor of finding that Mr. Maturino cannot fairly be blamed for the timing of this request for equitable relief. Pointing out that Mr. Maturino would only be entitled to substitute himself as plaintiff on remand (in the stead of the Consul General of Mexico) if he had a “reasonable basis” for naming the Consul General as plaintiff in the first place, the Court of Appeals expressly acknowledged that Mr. Maturino had not acted unreasonably, because there was some evidence to indicate Mr. Maturino was mentally incompetent. Magallon v. Livingston, __ F.3d___, 2006 WL 1660547 at * 3. Had Defendants joined in a focused effort to litigate the merits of Mr. Maturino’s civil rights claims, rather than engaging in a scorched-earth strategy to see his case dismissed on legally incorrect grounds, see id., this case might
9

well have been resolved by now. Given the Fifth Circuit’s findings, the time lost since mid-April – attributable to Defendants’ stubborn attempt to dismiss the complaint rather than defend Texas’ lethal injection protocol on the merits – cannot form the basis for a finding that Mr. Maturino lacks clean hands in seeking equitable relief from the Court.
In sum, the equitable powers of the federal courts are are entrusted to the courts to be exercised according to their traditional purposes:
The essence of a court's equity power lies in its inherent capacity to adjust remedies in a feasible and practical way to eliminate the conditions or redress the injuries caused by unlawful action. Equitable remedies must be flexible if these underlying principles are to be enforced with fairness and precision. Freeman v. Pitts, 503 U.S. 467, 487 (1992) (emphasis added). Here, those concepts of fairness and flexibility should lead the Court to grant the equitable relief requested. Equity requires a true examination of the circumstances; doing that here precludes any decision that there was a delay attributable to Mr. Maturino that hampered this Court’s ability to resolve his legal claims in a timely way without the necessity of issuing injunctive relief. II. Remaining factors
The next two factors in the temporary injunction analysis weigh in Mr. Maturino’s favor as well. There exists a substantial threat that he will suffer irreparable injury if a preliminary injunction is denied. If the case is not resolved prior to his scheduled execution, Defendants will be free to inject Mr. Maturino with a combination of dangerous poisons using unqualified personnel in a manner and in an environment that unnecessarily and intolerably increases the risk that he will die in excruciating pain. Because those injuries will be inflicted on Mr. Maturino immediately prior to and in the
10

course of killing him, the injury is plainly irreparable. The unconstitutional harm need not occur before a court can act to enjoin it; this Court may do so if there exists “an unreasonable risk” that such harm will occur. Helling v. McKinney, 509 U.S. 25, 35 (1993).
Third, the threatened injury to Mr. Maturino outweighs the threatened harm the injunction may do to Defendants. Defendants possess no cognizable interest in employing a particular means of ending Mr. Maturino’s life and thereby executing the jury’s judgment that he should die for his crime, nor are Defendants constrained by any Texas law governing the protocol. Short of the cost of altering their own secret protocol, which cannot be great, Defendants have no interest that is impaired by the issuance of a preliminary injunction from this Court prohibiting them from injecting pancuronium bromide and potassium chloride into Mr. Maturino.
Were the Court to find it necessary or appropriate temporarily to enjoin Mr. Maturino’s execution altogether during the pendency of this civil rights action, see infra, it would be appropriate to include in this balance “the important interest in the timely enforcement of a sentence” belonging to “the State and the victims of crime.” Hill, supra, at *8. (citation omitted) (discussing considerations appropriate to the decision whether to grant a stay of execution in connection with a civil rights lawsuit challenging the method of execution). But adding that consideration to the mix here does not change the balance of interests. The interest in “timely enforcement” of Mr. Maturino’s sentence will not be significantly harmed by a brief postponement of his execution in order fully and fairly to adjudicate his civil rights claims. Indeed, given the strength of the evidence indicating that execution according to the existing Texas protocol risks causing painful
11

suffering in addition to death, there is no reason to believe that the victims’ survivors in
this case would prefer a “timely” but excruciating execution to one conducted a few weeks later but carried out according to the Constitution and the law.4
Fourth, granting the preliminary injunction, far from disserving the public
interest, will protect it. As a Maryland administrative judge acknowledged this week in
the course of issuing a ruling on a pending lethal injection lawsuit filed by a condemned
prisoner, “Ensuring that the State complies with the Constitution is an interest in which
all Maryland citizens have a stake, not just those under a sentence of death.” See Jennifer
McMenamin, “Maryland Judge Casts Doubt On Execution Process,” THE BALTIMORE
SUN (June 22, 2006). The District Court in the Ohio case of Jeffrey Hill, supra, agrees:
“[t]his Court is in agreement with Plaintiff Hill that the public interest only is served by
enforcing constitutional rights and by the prompt and accurate resolution of disputes
concerning those constitutional rights. By comparison, the public interest has never been
4 While such comparisons are always inexact, it also bears observing that this case moved relatively rapidly through the post-conviction review process to the point at which an execution date could be set according to Texas’ usual practice. Mr. Maturino arrived on Death Row just over five years ago, and his conviction became final on direct review just over two years ago. Ordinarily in Texas, an execution date is not set until after the conclusion of a death-sentenced prisoner’s federal habeas appeal to the Fifth Circuit, and even then such dates are typically set to afford a 90-120 day “window” for seeking certiorari review of the Fifth Circuit’s decision. But due to the supine nonfeasance of Mr. Maturino’s original court-appointed habeas counsel Leslie Ribnik, who abandoned Mr. Maturino to his fate after filing the initial one-issue federal habeas petition, Mr. Maturino had no appeal in due course to the Fifth Circuit. Partly as a result, Mr. Maturino faces execution sooner than other similarly situated offenders – like the twelve other offenders executed in Texas since January 1 of this year, each of whom spent an average of 9.8 years (nearly twice as long as Mr. Maturino) on Death Row before being executed. Under the unusual circumstances of Mr. Maturino’s case, then, a brief postponement of the early-scheduled execution date will not unduly disadvantage anyone with a legitimate interest in the timely execution of the sentence.
12

and could never be served by rushing to judgment at the expense of a condemned inmate’s constitutional rights.” Hill and Cooey, supra, slip op. at 10.
Moreover, as noted supra, the public’s interest in enforcement of the sentence will not be affected by an injunction from this Court forbidding Defendants from proceeding to execute Mr. Maturino in the unconstitutional manner they currently intend. As discussed above, there is nothing that prohibits defendants from altering their protocol so as to comply with the Eighth Amendment, Texas law regarding the euthanasia of animals by intravenous chemical injection, and the standards of decency that exist in society in 2006. The public’s interest lies not in execution by a particular means, but in having effective safeguards in place to ensure that the condemned experience a humane death without an unnecessary and intolerable risk of torture, whatever method of execution is employed. Such safeguards are absent in Texas today. This factor, like the others described above, weighs in Mr. Maturino’s favor.
MOTION FOR ALTERNATIVE RELIEF Through no fault of Mr. Maturino’s, see supra, time has grown short for the Court to decide how to proceed in this factually complex matter. In order to preserve the status quo ante pending resolution of these issues, and to preserve this Court’s jurisdiction over the subject matter of the litigation if it proves impossible to adjudicate these issues properly in the next seventy-two hours, Mr. Maturino out of an abundance of caution further moves the Court for an order staying his execution under 28 U.S.C. § 1651, the All Writs Act. Section 1651 “empowers a federal court – in a case in which it is already exercising subject matter jurisdiction – to enter such orders as are necessary to aid it in the exercise of such jurisdiction.” In re Hill, 437 F.3d 1080, 1083 (11th Cir. 2006) (citing
13

Steffen v. Tate, 39 F.3d 622, 625 (6th Cir. 1994). If the Court cannot responsibly resolve the questions before it in the time remaining before Tuesday at 6:00 p.m., it should enter a stay under § 1651 to preserve its ability to do so.
CONCLUSION For the foregoing reasons, Mr. Maturino respectfully requests that this Court grant a preliminary injunction or, in the alternative, a temporary restraining order,
prohibiting Defendants and their agents from administrating a lethal injection to him under the protocol currently in effect in the State of Texas; and/or precluding Defendants or their agents from using Pavulon or pancuronium bromide or potassium chloride in the execution, and requiring that they use exclusively sodium thiopental to cause Mr. Maturino’s death; and/or requiring Defendants and their agents to comply with AVMA by ensuring that appropriately qualified medical personnel assess and assure the surgical plane of anesthesia before proceeding to administer pancuronium bromide or potassium chloride, to insure Mr. Maturino’s uninterrupted unconsciousness throughout the procedure, and, further, forbidding Defendants and their agents from use of a BIS (Bispectral index monitor) in this connection; and/or staying Mr. Maturino’s execution under the All Writs Act until the merits of this case can be resolved; and /or granting such other relief as law and justice require.
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Respectfully submitted, ___/s/ Robert C. Owen______ ROBERT C. OWEN Attorney in Charge S.D. Tex. No. 16526 Texas Bar No. 15371950 Owen & Rountree, LLP P.O. Box 40428 Austin, Texas 78704 Tel. 512-804-2661 Fax 512-804-2685
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CERTIFICATE OF SERVICE This certifies that a true and correct copy of the foregoing document has been served on counsel for Respondent by facsimile transmission and e-mail on June 25, 2006, and by thereafter placing the same into the United States Mail, first-class postage prepaid, addressed to: Mr. Ed Marshall Capital Litigation Division Office of the Attorney General P.O. Box 12548 Austin, Texas 78711
_________/s/ Robert C. Owen________________
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 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

ANGEL MATURINO RESENDIZ Plaintiff,
v.
BRAD LIVINGSTON, et al., Defendants.

§

§

§

§

CIVIL ACTION NO. H-06-CV-818

§

§

§

§

MEMORANDUM AND ORDER

The State of Texas set Angel Maturino Resendiz’s (“Resendiz”) execution for

tomorrow, June 27, 2006. This civil actionbegan on March 10, 2006, when Carlos González

Magallón, the Consul General of Mexico (“the Consul General”), filed a civil rights

complaint under 42 U.S.C. § 1983 as Resendiz’s “next friend.” This court previously found

that the Consul General had no standing to litigate this action on Resendiz’s behalf. The

Fifth Circuit agreed and remanded this case to allow Resendiz an opportunity to pursue the

claim as a party. Magallón ex rel. Resendiz v. Livingston, ___ F.3d ___, No. 06-70023, 2006

WL 1660547 (5th Cir. June 16, 2006). On June 23, 2006, Resendiz filed a motion seeking

to be substituted as the plaintiff in this actoi n, which this court granted. (Docket Entry Nos.

25, 26). This court must now consider whether Resendiz’s case, which seeks a permanent

injunction to bar Texas from using its current lethal injection protocol to carry out his death

sentence, requires staying his scheduled execution. (Docket Entry Nos. 27–29).

This is not the first case alleging that the three-drug com bination used to carry out

death sentences in Texas violates the Eighth Amendment’s prohibition on cruel and unusual punishment. When this court first considered the Consul General’s challenge to the Texas lethal-injection procedure, the Supreme Court had not resolved whether a civil rights action or a habeas petition was the appropriate procedure to bring a emthod-of-execution challenge. After the Supreme Court’s decision inNelson v. Campbell, 541 U.S. 637 (2004), which held that an inmate could use 42 U.S.C. § 1983 to challenge a procedure that a state planned to use to carry out an inmate’s execution, inmates throughout the country began filing section 1983 claims challenging different aspects of the lethal injection procedure.
After Nelson was decided, the Fifth Circuit refused to conside r lethal-injection challenges that inm ates raised, without addressing whether such c hallenges should be brought as habeas or civil rights claims. The Fifth Circuit held that the cases raising suc h challenges were brought too late in the legal process to be considered on the m erits. See Smith v. Johnson, 440 F.3d 262, 263 (5th Cir. 2006);Neville v. Johnson, 440 F.3d 221, 222 (5th Cir. 2006); White v. Johnson, 429 F.3d 572, 574 (5th Cir. 2005);Harris v. Johnson, 376 F.3d 414, 416 (5th Cir. 2004).1 The Fifth Circuit consistently refused to stay an execution if the inmate filed his lethal-injection challenge after Texas had set an execution date, finding that such challenges “seek a delay of [ an inmate’s] execution, not m erely to effect an alteration of the manner in which it is carried out.” Harris, 376 F.3d at 418. These cases

1

The Fifth Circuit consistently reached similar conclusions in unpublished decisions. See Wilson v.

Livingston, No. 06-70018, 2006 WL 1159270 (5th Cir. May 2, 2006); Kincy v. Livingston, No.

06-70012, 2006 WL 775126 (5thCir. Mar. 27, 2006); Hughes v. Livingston, 170 Fed. Appx. 878 (5th

Cir. Mar. 14, 2006); Elizalde v. Livingston, No. 06-70002 (5th Cir. Jan. 30, 2006) (unpublished

order).

2

made it clear that capital inmates who delay in raising such claims risk their dismissal. In Hill v. McDonough , ___ S. Ct. ___, 2006 WL 1584710 (June 12, 2006), the
Supreme Court recently decided that m ethod-of-execution challenges should generally be raised under section 1983 rather than as habeas petitions. ThHeill decision confirms that this case is appropriately brought under section 1983. Hill itself, however, by no means requires this court to stay Resendiz’s impending execution. The Hill decision cautioned that “courts should not tolerate abusive litigation tactics,” patricularly when suits are “speculative or filed too late in the day.” Hill, ___ S. Ct. at ___, 2006 WL 1584710, at *7–8. The Supreme Court stated that “a stay of execution is an equitable remedy . . . and equity must be sensitive to the State’s strong interest in enforcing its criminal judgments without undue interference from the federal courts.” Id. at *8. The Suprem e Court approvingly cited the Fifth Circuit’s dismissal of tardy lethal injection challenges and reemphasized that “[a] court considering a stay must also apply ‘a strong equitable presum ption against the grant of a stay where a claim could have been brought at such a tim e to allow consideration of the merits without requiring entry of a stay.’ ” Id. at *8 (quoting Nelson, 124 S. Ct. at 650); see also Reese v. Livingston, ___ F.3d ___, 2006 WL 1681090, at * 2 (5th Cir. June 20, 2006) (noting thHe ill Court’s citation of Fifth Circuit precedent).
Resendiz has filed a motion for permanent injunction, temporary restraining order, or stay of execution that would bar Texas from using its current procedure to execute him . (Docket Entry No. 27). The Fifth Circuit treats such a last-m inute challenge to the Texas lethal-injection process as a request for a stay of executionS. ee White, 429 F.3d at 573 (“The
3

principles enunciated by this Court a re equally applicable to all types of equitable relief,

including permanent injunctions, sought by inmates facing imminent execution.”); Harris,

376 F.3d at 417–19 (considering an inma te’s delay in evaluating the need for a TRO to

prevent Texas’ use of its lethal-injection procedure). TheHill and Nelson cases emphasized

two critical factors in evaluating whether a stay of execution should issue: (1) whether the

inmate has delayed unnecessarily in bringing the claim; and (2) whether the inmate shows

a significant probability of success on the m erits. See Hill, ___ S. Ct. ___, 2006 WL

1584710, at *8; Nelson, 124 S. Ct. at 2126.2 Fifth Circuit law has focused on the first factor.

The Fifth Circuit has insisted that an inmate asking a federal court to decide whether

the State is using a constitutionally perm itted means to carry out an otherwise valid death

sentence do so early enough in the legal process to allow the decision to be made properly,

which cannot be done if the challenge is delayed. The circuit has explained:

Timely filing would have afforded opportunity for developing facts and

considered resolution of the merits of the repeated charges leveled against this

method of execution. Testim ony in open court can cast away shadows and

allow a principled decision of the m

erit of the assertions of all

concerned—rather than forcing courts to choose between speculative

assertions and “just trust me” responses.

2

The Fifth Circuit in Harris stated that it had “ample reason to doubt whether societal standards of

decency have evolved to the point at which [the inm ate] claims them to be,” thus signaling a

skepticism as to whether the lethal-injection challenges could succeed on the merits. Harris, 376

F.3d at 419. Other circuit courts have dismissed similar challenges by reasoning that the claims are

too speculative. See Boltz v. Jones, ___ F.3d ___, No. 06-6184, 2006 WL 1495030, at *1 (10th Cir.

June 1, 2006) (finding no likelihood of success on the merits); Hicks v. Taft, 431 F.3d 916, 916–17

(6th Cir. 2005) (citing an unpublished decision finding not likelihood of success on the m erits).

Although the Fifth Circuit law has not rejected lethal injection challenges as baseless, a significant

concern exists as to whether these suits can succeed on the m erits. As the question of Resendiz’s

failure to assert a timely claim is clear, this court does not rest its decision on the merits of Resendiz’s

complaint.

4

Reese, ___ F.3d at ___, 2006 WL 1681090, at *2. Sim ply, “a plaintiff cannot wait until a stay must be granted to enable it to develop facts and take the case to trial—not when there is no satisfactory explanation for the delay.” Id. The circuit has been clear that an inmate cannot delay in raising a m eans-of-execution challenge and expe ct the courts to stay the execution to permit the challenge to be fully tried and thoughtfully resolved.
The procedural history of Resendiz’s case, analyzed against the Fifth Circuit’s case law on when means-of-execution claims, including lethal-injection challenges, must be filed, shows that he should have brought this claimmuch earlier. The Court of Criminal Appeals affirmed Resendiz’s conviction and sentence on direct review on May 21, 2003. Resendiz v. State, 112 S.W.3d 541 (Tex. Crim . App. 2003). The Suprem e Court denied certiorari review on May 3, 2004. Resendiz v. Texas, 124 S. Ct. 2098 (2004).3 On June 30, 2004, the Fifth Circuit issued its first opinion addressing last minute method-of-execution challenges. In Harris v. Johnson, 376 F.3d 414, 417 (5th Cir. 2004), the Fifth Circuit found that an inmate needed to file his method-of-execution challenge when his execution was “an event reasonably likely to occur in the future,” not when it wa s “an imminent or im pending danger[.]” Id. at 418. TheHarris decision, while not establishing an explicit time line, made clear that the Fifth Circuit would not tolerate last m inute challenges to the Te xas lethalinjection procedure.
Resendiz filed a federal petition for a writ of habeas corpus on May 3, 2005. After

3

The Court of Criminal Appeals denied Resendiz’s state application for habeas relief on March 3,

2004. Ex parte Resendiz, No. 58172-01, 2004 WL 885742 (Tex. Crim. App. 2004) (unpublished).

5

this court denied habeas relief on Septem ber 7, 2005, and Resendiz failed to file a tim ely notice of appeal, it was clear that the State would shortly schedule an execution date. Soon thereafter, the Fifth Circuit issued its second opinion on lethal-injection challenges, White v. Johnson, 429 F.3d 572 (5th Cir. 2005). In this case, the circuit made it plain that a lethalinjection challenge is ripe—and must be filed—when an inmate’s conviction became final on direct review.
In December 2005—a m onth after the Fifth Circuit’s White opinion—Texas set Resendiz’s execution for May 10, 2006. Resendiz still filed no challenge over the manner in which Texas would carry out the death senetnce imposed over three years earlier. In early 2006, the Fifth Circuit repeatedly reconfirmed its intolerance for lethal-injection challenges filed on the eve of execution. See Smith, 440 F.3d at 263; Neville, 440 F.3d at 222; Elizalde v. Livingston, No. 06-70002 (5th Cir. Jan. 30, 2006) (unpublished order). Yet it was not until March 10, 2006, two m onths before Resendiz’s initial execution date, that the Consul General filed this lawsuit. The State of Texas later reset Resendiz’s execution date for June 27, 2006.
Throughout the nearly two years between the conclusion of Resendiz’s direct appeal and the filing of this action, the Fifth Circuit case law has repeatedly emphasized the need to file timely lethal-injection challenges. Both this court and the Fifth Circ uit have found Resendiz able under Rule 17 of the Federal Rulesof Civil Procedure to direct his own legal proceedings. Resendiz did not file this case on his own behalf after his case becaemfinal on direct review, for nearly two years before his initial execution date. Even after the Consul
6

General initiated this suit for him, Resendiz could have joined the proceeding, averting the need for appellate consideration of the Consul General’s standing. Instead, Resendiz did not assert a challenge to the Texas lethal-injection procedure until a scant few days before his scheduled execution date.
The Fifth Circuit case law, binding on this court, leads this court to deny Resendiz’s last-minute challenge and accompanying motion to stay. The length of the delay in raising the challenge and the failure to raise it during Resendiz’s earlier challenges to his sentence make this case similar to those in which the Fifth Circuit and Supreme Court have allowed executions to proceed. See, e.g., Reese, __ F.3d __, 2006 WL 1681090, at *2 (holding that the district court properly dismissed as untimely a lethal-injection challenge filed three years after the plaintiff’s direct appeal had become final).
Under Rule 17(a) of the Federal Rules of Civil Procedure, this court must treat Resendiz’s case “as if the action had been com menced in the nam e of the real party in interest.” Even assuming that Resendiz had filed this action himself in March 2006, he has long been on notice that federal law would not grant a last-minute stay of execution to permit him to raise claims that he could have raised earlier. Although Resendiz has complained that his first federal habeas attorney was incompetent, this complaint is common to other lethalinjection challenges dismissed as untimely filed. Even when, as here, an inmate’s attorney failed to file a lethal-injection challenge until the execution was imminent, the Fifth Circuit (and subsequently the Supreme Court) have consistently refused to stay an execution.
Soon after the conclusion of Resendiz’s direct appeal, the Fifth Circuit repeatedly 7

emphasized the importance of timely filing such actions. Nevertheless, this case was filed three months after Texas set an execution date. The belated filing and pursuit of this action has not provided time for any development of Resendiz’s claims. A two-month period, even when later extended by the State, provided insufficient time to resolve the complicated issues raised by Resendiz’s pleadings. Resendiz simply failed to advance this claim in a way that would allow its developm ent without seriously im pinging on Texas’s right to enforce its constitutionally valid judgm ent. As in other sim ilar cases, the extended tim e with no challenge to the way the State plans to carry out his death sentence shows that Resendiz “seek[s] a delay of his execution, not merely to effect an alteration of the manner in which it is carried out.” Harris, 376 F.3d at 418. The circum stances before this court do not present a com pelling case for the exceptional exercise of equity in Resendiz’s behalf. Accordingly, this court denies Resendiz’s motion for an injunction, restraining order, or stay of execution.
SIGNED on June 26, 2006, at Houston, Texas. ______________________________________ Lee H. Rosenthal United States District Judge

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

ANGEL MATURINO RESENDIZ Plaintiff,
v.
BRAD LIVINGSTON, et al., Defendants.

§

§

§

§

CIVIL ACTION NO. H-06-CV-818

§

§

§

§

ORDER

The State of Texas executed the plaintiff, Angel Matruino Resendiz, on June 27, 2006.

Rule 25(a) of the Federal Rules of Civil Procedure applies in the event of a party’s death.

Once a suggestion of death exists, an action involving a claim that is not extinguished may

proceed in favor of a proper successor. FED. R. CIV. P. 25(a). Here, however, Resendiz’s

death moots his request for injunctive relief, meaning that there is no continuing claim for

a successor to maintain. Because Resendiz’s death extinguished the claim s raised by his

lawsuit, this case is dismissed.

SIGNED on June 28, 2006, at Houston, Texas.

______________________________________ Lee H. Rosenthal
United States District Judge

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

ANGEL MATURINO RESENDIZ Plaintiff,
v.
BRAD LIVINGSTON, et al., Defendants.

§

§

§

§

CIVIL ACTION NO. H-06-CV-818

§

§

§

§

ORDER OF DISMISSAL

For the reasons set out in the court’s Order of even date, this case is dismissed.

SIGNED on June 28, 2006, at Houston, Texas.

______________________________________ Lee H. Rosenthal
United States District Judge

 
 APPEAL, CLOSED, DEATH_PENALTY, PRIS
U.S. District Court SOUTHERN DISTRICT OF TEXAS (Houston) CIVIL DOCKET FOR CASE #: 4:06-cv-00818

Resendiz v. Livingston et al DEATH PENALTY CASE Assigned to: Judge Lee H Rosenthal Related Case Case: 4:05-cv-01604 Cause: 42:1983 Prisoner Civil Rights

Date Filed: 03/10/2006 Date Terminated: 04/27/2006 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Plaintiff Angel Maturino Resendiz

represented by Jared Philip Tyler Texas Innocence Network 100 Law Center Houston, TX 77204-2073 713-743-8592 Fax: 713-743-2131 Email: jptyler@central.uh.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert C Owen Owen & Rountree LLP PO Box 40428 Austin, TX 78704 512-804-2661 Fax: 512-804-2685 Email: robowen@earthlink.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy K Ford MacDonald Hoague et al 705 2nd Ave Ste 1500 Seattle, WA 98104 Email: timf@mhb.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Brad Livingston Executive Director, Texas Department of Criminal Justice

represented by Edward Larry Marshall Office of the Attorney General P O Box 12548 Austin, TX 78711 512-936-1600 Fax: 512-320-8132 fax Email: edward.marshall@oag.state.tx.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gena Blount Bunn Texas Attorney General PO Box 12548 Austin, TX 78711 512-936-1400 Fax: 512-320-8132 Email: gena.bunn@oag.state.tx.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Douglas Dretke Director, Correctional Institutions Division Texas Department of Criminal Justice

represented by Edward Larry Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gena Blount Bunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Charles O'Reilly Senior Warden, Huntsville Unit

represented by Edward Larry Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gena Blount Bunn

Defendant Unknown Executioners

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Edward Larry Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/10/2006
03/10/2006 03/10/2006 03/10/2006 03/10/2006 03/21/2006 03/27/2006
03/28/2006 03/28/2006

#

Docket Text

1 Prisoner Civil Rights COMPLAINT against all defendants (Filing fee $ 250) filed by Carlos Gonzalez Magallon.(rsmith, ) Additional attachment(s) added on 3/10/2006 (rsmith, ). Additional attachment(s) added on 3/10/2006 (rsmith, ). (Entered: 03/10/2006)

2 MOTION for Timothy K Ford to Appear Pro Hac Vice by Carlos Gonzalez Magallon, filed. Motion Docket Date 3/30/2006. (mkadlubowski, ) (Entered: 03/10/2006)

Summons Issued as to Brad Livingston, Doug Dretke, Charles O'Reilly , filed.(lusmith, ) (Entered: 03/10/2006)

CIVIL Filing fee re: 1 Complaint: $ 250.00, receipt number 4567656 , filed. (ejones, ) (Entered: 03/10/2006)

3 ORDER granting 2 Motion to Appear Pro Hac Vice as to Timothy Ford .( Signed by Judge Lee H Rosenthal ) Parties notified.(bthomas, ) (Entered: 03/13/2006)

4 NOTICE of Appearance by Edward L. Marshall on behalf of all defendants, filed. (Marshall, Edward) (Entered: 03/21/2006)

5 First AMENDED Complaint against all defendants filed by Carlos Gonzalez Magallon. Related document: 1 Complaint filed by Carlos Gonzalez Magallon,.(Ford, Timothy) (Entered: 03/27/2006)

6 MOTION to Dismiss by all defendants, filed. Motion Docket Date 4/17/2006. (Attachments: # 1 Proposed Order)(Marshall, Edward) (Entered: 03/28/2006)

7 CERTIFICATE OF SERVICE of 5 Amended

03/30/2006
04/10/2006 04/11/2006 04/12/2006 04/12/2006 04/19/2006 04/27/2006 04/27/2006 05/01/2006 05/04/2006 05/04/2006

Complaint/Counterclaim/Crossclaim etc. by Carlos Gonzalez Magallon, filed.(Ford, Timothy) (Entered: 03/28/2006)
8 Order entered Requiring Consul General to file a responsive pleading to defendant Resendiz's Motion to Dismiss. Response to be filed within 10 days from the date of this Order. ( Signed by Judge Lee H Rosenthal ) Parties notified.(csonnier, ) (Entered: 03/30/2006)
9 Mail Returned Undeliverable as to attorney Jared Philip Tyler re: 8 Order , filed. (ghassan, ) (Entered: 04/11/2006)
Address of attorney Jared Philip Tyler updated. Copy of Order #8 re-sent to Mr. Tyler via USPS on 4/11/2006, filed. (ghassan, ) (Entered: 04/11/2006)
10 RESPONSE in Opposition to 6 MOTION to Dismiss, filed by Carlos Gonzalez Magallon. (Attachments: # 1 Proposed Order)(Ford, Timothy) (Entered: 04/12/2006)
11 APPENDIX re: 10 Response in Opposition to Motion by Carlos Gonzalez Magallon, filed. (Attachments: # 1 Appendix 1-3# 2 Appendix 4# 3 Appendix 5-6# 4 Appendix 7# 5 Appendix 810)(Ford, Timothy) (Entered: 04/12/2006)
12 NOTICE of Modification of Execution Date by Carlos Gonzalez Magallon, filed. (Attachments: # 1 Exhibit A)(Ford, Timothy) (Entered: 04/19/2006)
13 MEMORANDUM AND OPINION entered GRANTING Defts. 6 MOTION to Dismiss. This case will be dismissed by separate order( Signed by Judge Lee H Rosenthal ) Parties notified.(leddins, ) (Entered: 04/27/2006)
14 ORDER OF DISMISSAL entered. This case is dismissed with prejudice. Case terminated on 4/27/06.( Signed by Judge Lee H Rosenthal ) Parties notified.(leddins, ) (Entered: 04/27/2006)
15 MOTION to Alter Judgment by Carlos Gonzalez Magallon, filed. Motion Docket Date 5/22/2006. (Ford, Timothy) (Entered: 05/01/2006)
16 ORDER entered GRANTING IN PART Pltfs 15 MOTION to Alter Judgment, as to the typographical error, and reconfirming this courts order of dismissal.( Signed by Judge Lee H Rosenthal ) Parties notified.(leddins, ) (Entered: 05/04/2006)
17 NOTICE OF APPEAL to US Court of Appeals for the Fifth Circuit re: 13 Memorandum & Opinion, 16 Order, 14 Order of Dismissal by Carlos Gonzalez Magallon (Filing fee $ 455),

05/09/2006 05/17/2006 05/19/2006 06/19/2006 06/22/2006
06/22/2006 06/22/2006 06/22/2006
06/23/2006 06/23/2006

filed.(Ford, Timothy) (Entered: 05/04/2006)
18 Transmittal Letter to US Court of Appeals for the Fifth Circuit re: 17 Notice of Appeal. Fee status: not paid, filed. (via email, attention Monica Washington)(jdavenport, ) (Entered: 05/09/2006)
19 Notice of Docketing Notice of Appeal from US Court of Appeals for the Fifth Circuit re: 17 Notice of Appeal. USCA No. 06-70023 RE: Orders (Related Document #13, 14, 16, filed.(mkadlubowski, ) (Entered: 05/18/2006)
APPEAL Filing fee re: 17 Notice of Appeal: $ 455.00, receipt number 4-570198; PD BY MacDonald Hoague & Bayless Law Firm (Terry K Ford) , filed. (ejones, ) (Entered: 05/19/2006)
20 ORDER ON REMAND entered. Counsel for plaintiff must file his motion on Resendiz's behalf on or before 6/22/06. .( Signed by Judge Lee H Rosenthal ) Parties notified.(leddins, ) (Entered: 06/19/2006)
21 Response to 20 Order and Conditional MOTION to Appoint Angel Maturino Resendez by Carlos Gonzalez Magallon, filed. Motion Docket Date 7/12/2006. (chorace, ) Additional attachment(s) added on 6/22/2006 (chorace, ). (Entered: 06/22/2006)
22 NOTICE of Appearance by Robert C. Owen on behalf of Carlos Gonzalez Magallon, filed. (chorace, ) (Entered: 06/22/2006)
23 RESPONSE to 21 MOTION to Appoint Angel Maturino Resendez and EMERGENCY REQUEST for Stay of Execution, filed by Carlos Gonzalez Magallon. (Ford, Timothy) Modified on 6/30/2006 (ltien, ). (Entered: 06/22/2006)
24 ORDER entered that Resendiz has until 6/23/06 to file a motion to substitute. Failure to do so will be taken as representation that Resendiz does not wish to pursue the lawsuit .( Signed by Judge Lee H Rosenthal ) Parties notified.(leddins, ) (Entered: 06/22/2006)
25 MOTION to Substitute Real Party in Interest Angel Maturino Resendez in place of Carlos Gonzalez Magallon by Carlos Gonzalez Magallon, filed. Motion Docket Date 7/13/2006. (cpeebles) (Entered: 06/23/2006)
26 ORDER entered GRANTING 25 MOTION to Substitute Party Angel Maturino Resendez in place of Carlos Gonzalez Magallon. Counsel must file its motion to stay by 12:00 p.m. on

06/25/2006
06/26/2006 06/26/2006
06/26/2006 06/26/2006 06/26/2006 06/26/2006 06/27/2006 06/28/2006 06/28/2006

6/25/06 and the AG's office must respond by 12:00 p.m. on 6/26/06. Counsel must fax a copy to the AG's office and to this court's case manager.( Signed by Judge Lee H Rosenthal ) Parties notified.(leddins, ) (Entered: 06/23/2006)
27 MOTION for Preliminary Injunction, MOTION for Temporary Restraining Order, or MOTION for Stay of Execution and Memorandum in Support by Angel Maturino Resendez, filed. Motion Docket Date 7/17/2006. (Attachments: # 1 Exhibit)(Owen, Robert) Additional motion reliefs added on 7/11/2006 (ltien, ). (Entered: 06/25/2006)
28 RESPONSE in Opposition to 27 MOTION for Preliminary Injunction, filed by all defendants. (Attachments: # 1 Proposed Order)(Marshall, Edward) (Entered: 06/26/2006)
29 REPLY to Response to 27 MOTION for Preliminary Injunction, Temporary Restraining Order or Stay of Execution by Angel Maturino Resendez, filed. (Owen, Robert) Modified on 6/26/2006 (leddins, ). Modified on 7/11/2006 - linked to #27 (ltien, ). (Entered: 06/26/2006)
30 MEMORANDUM AND ORDER entered DENYING Petitioners 27 MOTION for Preliminary Injunction, restraining order or stay of execution.( Signed by Judge Lee H Rosenthal ) Parties notified.(leddins, ) (Entered: 06/26/2006)
31 NOTICE OF APPEAL to US Court of Appeals re: 30 Memorandum & Order by Angel Maturino Resendiz (Filing fee $ 455), filed.(Owen, Robert) (Entered: 06/26/2006)
32 MOTION for Leave to Appeal in forma pauperis by Angel Maturino Resendiz, filed. Motion Docket Date 7/17/2006. (Owen, Robert) (Entered: 06/26/2006)
33 ORDER entered GRANTING 32 MOTION for Leave to Appeal in forma pauperis.( Signed by Judge Lee H Rosenthal ) Parties notified.(leddins, ) (Entered: 06/26/2006)
34 Transmittal Letter to US Court of Appeals for the Fifth Circuit re: 31 Notice of Appeal. Fee status: paid, filed.(mharrison, ) (Entered: 06/27/2006)
35 ORDER entered mooting Resendiz's request for injunctive relief based on the execution of plaintiff. This case is dismissed .( Signed by Judge Lee H Rosenthal ) Parties notified.(leddins, ) (Entered: 06/28/2006)
36 ORDER OF DISMISSAL entered. This case is dismissed .(

06/28/2006 06/29/2006 07/03/2006 07/03/2006
07/03/2006 07/03/2006 07/05/2006

Signed by Judge Lee H Rosenthal ) Parties notified.(leddins, ) (Entered: 06/28/2006)
37 Mail Returned Undeliverable as to attorney Robert C Owen re: 24 Order , filed. (sbyrum, ) (Entered: 06/28/2006)
Electronic record on appeal certified to the U.S. Court of Appeals for the Fifth Circuit. Fifth Circuit Court of Appeals Case Number: (no number listed), filed.(mharrison, ) (Entered: 06/29/2006)
38 Fifth Circuit Court of Appeals LETTER advising the record on appeal will be forwarded at a later date (USCA No. 06-40023), filed.(jdavenport, ) (Entered: 07/04/2006)
39 OPINION from USCA for the Fifth Circuit re: 31 Notice of Appeal (USCA No. 06-70023). The district court's decision that the Consul General cannot sue as Resendiz's next friend is AFFIRMED. The judgment of the district court is MODIFIED to provide that this suit can continue if Resendiz chooses to be substituted as the proper plaintiff. This case is REMANDED accordingly, filed.(jdavenport, ) (Entered: 07/04/2006)
40 Fifth Circuit Court of Appeals LETTER advising enclosed certified copy of opinion-order entered 6/27/06 Case Closed (USCA No. 06-70029), filed.(ledwards, ) (Entered: 07/05/2006)
41 Copy of OPINION from USCA for the Fifth Circuit re: 17 Notice of Appeal (USCA No. 06-70029). Affirmed; Stay Denied, filed.(ledwards, ) (Entered: 07/05/2006)
42 Mail Returned Undeliverable as to attorney Robert C Owen re: 26 Order, , filed. (ypippin, ) (Entered: 07/06/2006)

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 UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
06-70023

United States Court of Appeals Fifth Circuit
F I LED
June 16,2006
Charles R. Fulbruge III
Clerk

CARLOS GONZALEZ MAGALLON, Consul General of Mexico and Next Friend of Angel Maturino Resendiz,
Plaintiff-Appellant,
v.
BRAD LIVINGSTON, Executive Director, Texas Department of Criminal Justice; DOUGLAS DRETKE, Director, Correctional Institutions Division Texas Department of Criminal Justice; CHARLES O'REILLY; UNKNOWN EXECUTIONERS,
Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Texas

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge:

Earlier this week, the Supreme Court decided that Eighth

Amendment challenges to a state's method of execution may properly

be brought under 42 U.S.C. § 1983. See Hill v. Crosby,

U.S.

No. 05-8794, slip op. (June 12, 2006). We have such a suit before

us today. In this opinion, however, we only address narrow issues

of civil procedure. The result is that we affirm in part and

modify in part, remanding for further proceedings consistent with

this opinion.

I . BACKGROUND
Angel Resendiz is a Mexican national who was convicted of capital murder in Texas in 1998. His execution date, originally set for March 10, 2006, was reset by the state for June 27, 2006. The nominal plaintiff in this case is Carlos Magal16n, the Consul General of Mexico, suing as Resendiz's next friend. 1 The Consul General brought this lawsuit in March 2006 after Resendiz failed to appeal timely a district court's denial of his habeas corpus petition. See generally Resendiz v. Dretke, No. 05-70058, slip op. (5th Cir. June 9, 2006). The complaint alleged, inter alia, that Texas's three-drug lethal injection cocktail violates the Eighth Amendment because it subjects Resendiz to a risk of unnecessary suffering. As to the propriety of the Consul General suing as Resendiz's next friend, the complaint alleged that Resendiz was "not competent to proceed in his own behalf due to mental illness."
The state moved to dismiss, arguing that the Consul General could not properly bring this action on Resendiz's behalf. In response, Plaintiffs submitted extensive documentation in an attempt to establish Resendiz's incompetence. Considering these documents, the district court held that it had not been presented with anything suggesting that Resendiz could not pursue this action in his own capacity and noted that he was presently represented by
We refer to the Consul General and Resendiz together simply as "Plaintiffs."
2

counsel in his habeas appeal. It then dismissed the suit with prejudice for want of standing. The district court, after discussing the dilatoriness doctrine, also expressed the view that, if standing were present, then a serious question about the delay in filing would be raised. However, we do not read its opinion to expressly base the dismissal on dilatoriness.
Following the district court's dismissal, Plaintiffs did not seek leave to substitute Resendiz as the proper party in the district court. They immediately appealed to this Court and sought an expedited briefing schedule, which this Court granted. Neither side has requested a stay of execution. In their briefing to us, Plaintiffs argue that the district court erred by dismissing the complaint for failing to sue in the name of the real party in interest. II. STANDARD OF REVIEW
A preliminary, pre-answer objection that the plaintiff is not the real party in interest is analogous to a motion under Federal Rule of Civil Procedure 12 (b) (6) . See 6A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FED. PRAC. & PROC. § 1554 (2d ed. 2006). It presents legal issues that we will review de novo. See Dennis ex rel. Butko v. Budge, 378 F.3d 880, 888 n.5 (9th Cir. 2004) (holding that the standing of a next friend is reviewed de novo); cf. Arguello v. Conoco, 330 F.3d 355, 361 (5th Cir. 2003) (questions of standing reviewed de novo) .
3

Once a district court has decided that an action is not prosecuted by the real party in interest, it must then decide what remedy is appropriate. We review a court's decision to employ the sanction of dismissal for abuse of discretion. See Wieburg v. GTE Southwest Inc., 272 F.3d 302, 308 (5th Cir. 2001).
III. DISCUSSION
We consider first whether the district court correctly concluded that the Consul General could not sue as Resendiz's next friend. That question we answer in the affirmative. Turning then to the appropriate remedy, however, we hold that the court abused its discretion by not affording the Plaintiffs an opportunity to offer substitution.
A. WHETHER THE CONSUL GENERAL CAN SUE AS NEXT FRIEND
Plaintiffs argue that the district court erred by holding that the Consul General could not sue as Resendiz's next friend. Under Federal Rule of Civil Procedure Rule 17(c), an "incompetent person who does not have a duly appointed representative may sue by a next friend." The question for us, then, is whether Resendiz qualifies as an "incompetent person" within the meaning of Rule 17.
We have held that individuals are incompetent for Rule 17 purposes if they lack "the capacity to litigate under the law of [their] domicile." See Thomas v. Humfield, 916 F.2d 1032, 1034 (5th Cir. 1990) In Texas, the standard is whether individuals, "by reason of mental or bodily infirmity, [are] incapable of
4

properly caring for their own interests in the litigation. u Lindly v. Lindly, 102 Tex. 135, 141 (1908); Berger v. Berger, 578 S.W.2d 547, 549 (Tex. Civ. App.-Houston [1st Dist.], no writ). Plaintiffs argue that the district court failed to apply this Texas law and instead applied the ordinary criminal law standard for competency to stand trial. See 44 TEX. JUR. 3d, INCOMPETENT PERSONS § 6 ("Mental capacity is a comparative term that varies with the character of the act to which it refers. U) • As noted above, however, our review is de novo. As such, if the district court's reasoning was erroneous, we can ignore it. We apply the Lindly standard recited above.
In response to the state's motion to dismiss, Plaintiffs presented evidence documenting Resendiz's mental illness. According to Plaintiffs, Resendiz frequently engages in selfmutilation, including banging his head on the door until it bleeds and "cutting his face, chin, arm, head, legs, feet, neck and penis with a razor blade. u He is also apparently delusional. Plaintiffs document that Resendiz believes he is a "man-AngelU-that after his execution he will "only go to sleep for three days" and that he ultimately will "awaken with a renovated body to continue to do God's work" and "to vanquish God's enemies."
Plaintiffs' allegations paint a picture of a very troubled individual. The question, however, is not whether Resendiz is mentally ill. Rather, it is whether Resendiz can care for his own
5

interests In this litigation.

Lindly, 102 Tex. at 141.

Plaintiffs' allegations do not show that Resendiz is incapable of

doing so. According to Plaintiffs' own documentation, Resendiz

realizes that he will be "administered

. lethal injection." He

knows that "the government will place a needle in his arm" in an

attempt "to stop his heart, lungs, and brain function." He

apparently remains able to consult with his attorneys with some

understanding about their effort to challenge the lethal injection

protocol that he knows will be administered to him. (See Reply Br.

at 4); see also Magal16n, at 13. In any event, Plaintiffs do not

argue to the contrary. Limited as Resendiz's faculties may be, he

appears to have the legal capacity to maintain this section 1983

action in his own name.

Plaintiffs argue, however, that Resendiz's capacity to consult

with his attorneys is immaterial. (Plaintiff Br. 20.) We

disagree. An ability to communicate with your attorneys-to tell

them your interests and to give them information to help them

effectuate those interests-tends to show that you have the ability

to take care of yourself in litigation. The district court

properly took this into account.

Plaintiffs also contend that the complaint's generalized

assertion that Resendiz was incompetent should be enough to entitle

him to a hearing on the issue. Such a boilerplate allegation of

incompetency, however, was insufficient. Cf. Vulcan Materials v.

6

City of Tehuacana, 238 F.3d 382, 387 (5th Cir. 2001) ("Here, the complaint did not contain a short and plain statement of the claim, only legal conclusions of such generality as to fail to give fair notice."). This is especially true where the Plaintiffs' position on the issue was clarified by subsequent filings in response to the state's motion to dismiss. The district court properly assumed that specific statements in Plaintiffs' response were true. Since those allegations about Resendiz's mental illness, even if true, would not show his legal incapacity, the district court did not need to hold an evidentiary hearing. See United States v. Powell, 354 F.3d 362, 370 (5th Cir. 2003).
We also note that Resendiz himself is represented by counsel experienced in death penalty cases, who litigated the habeas appeal in Resendiz's own name. That reality is fundamentally at odds with Resendiz proceeding by next friend in this case. For these reasons, the court below correctly held that Resendiz could pursue this action on his own behalf and, therefore, needed no next friend.
We hasten to emphasize the limits of our holding. That Plaintiffs have not made allegations sufficient under Rule 17 to establish that Resendiz is incapable of bringing a section 1983 lawsui t does not mean, necessarily, that he is competent to be executed. Proceedings currently are pending in state court to determine whether Resendiz is competent to be executed under Texas
7

Code of Criminal Procedure Article 46.05 and Ford v. Wainright, 477

U.S. 399 (1986). Those proceedings present different questions of

competency than those that we have addressed today. We express no

opinion on them. Moreover, we need not address here whether

Resendiz was competent, under any standard, prior to the filing of

the instant lawsuit. All that is relevant for our purposes is that

Plaintiffs did not make allegations sufficient to show that

Resendiz was incompetent under Rule 17 at the time that the Consul

General initiated this action.

B. WHETHER THE SANCTION OF DISMISSAL WAS APPROPRIATE

Although the district court's substantive holding was correct,

its remedy was not. The court dismissed with prejudice Plaintiffs'

complaint after determining that the Consul General could not act

as Resendiz's next friend. As Plaintiffs point out, however,

Federal Rule of Civil Procedure 17 provides: "No action shall be

dismissed on the ground that it is not prosecuted in the name of

the real party in interest until a reasonable time has been allowed

after objection for ratification of commencement of the action by,

or ratification, joinder, or substitution of, the real party in

interest .

"

In accord with advisory committee notes, our case law has put

a gloss on Rule 17's unqualified language. It holds that a

plaintiff must have a reasonable basis for naming the wrong party

to be entitled to ratification, joinder, or substitution. See

8

Wieburg, 272 F.3d at 308 (citing Advanced Magnetics v. Bayfront

Partners, 106 F.3d 11, 20 (2d Cir. 1997)). Here, the Consul

General has indicated his belief, not wholly unfounded, that

Resendiz was incompetent. That was a reasonable explanation for

Plaintiffs' failure to bring suit in the correct party's name.

Under the circumstances, the district court abused its discretion

by ordering dismissal with prejudice before allowing a reasonable

time for ratification, joinder, or substitution. The court should

have utilized those less drastic alternatives to dismissal. See

id.

C. ALTERNATIVE GROUNDS FOR AFFIRMANCE

The state argues that we may affirm the court's dismissal on

alternative grounds.

First, it contends that Plaintiffs'

underlying Eighth Amendment claim is frivolous. Second, the state

argues that Plaintiffs delayed inequitably before bringing this

suit. See, e.g., Harris v. Johnson, 376 F.3d 414, 417 (5th Cir.

2004) (holding that prejudicial dilatoriness without reasonable

explanation results in an equitable bar to method-of-execution

claims). We think these questions are best handled by the court

below in the first instance in the event that they arise on remand.

IV. CONCLUSION

The district court's decision that the Consul General cannot

sue as Resendiz's next friend is AFFIRMED. However, we MODIFY the judgment of dismissal to provide that this suit can continue if

9

Resendiz chooses to be substituted as the proper plaintiff. This case is REMANDED accordingly.

Atn1ecopy

10

Attest:

By~~~~~~~~~~

.

DGputy

New Orleans, LOUi!:~Gr.:ll