* Pursuant to 5 TH C IR . R
. 47.5, th e court has determined that this opinion should not be

published and is not precedent except under the limit ed circumstances set fo rth in 5 TH C IR . R. 47.5.4. United States Court of Appeals

Fifth Circuit 

## FILED April 26, 2007 Charles R. Fulbruge III Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________ No. 07-70014

____________ RYAN HEATH DICKSON,
Pl aint iff- Appellant,
versus
BRAD LIVINGSTON, Executive Director, Texas Departm ent of Criminal Justice; NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITU TIONS DIVISION; CHARLES O'REILLY, Senior Warden, Huntsville Unit Huntsville, Texas; HAL MINER, PRESIDING JUDGE, 47TH DISTRICT JUDGE POTTER, COUNTY, TEXAS; UNKNOWN EXECUTIONERS Defendants - Appellees

Appeal from the United States District Court For the Northern District of Texas
Before GARZA, DeMOSS, and BENAVIDES, Circuit Judges. PER CURIAM: * Texas death-row inmat e Ryan Heath Dickson appeals the di stri ct court’s di smissal o f his-2-

action seeking injunct ive relief under 42 U.S.C. § 1983. He alleges that the com binat io n of three chemicals used during let hal inject io n will subject him to high risk of unnecessary and extreme pain in vio lat io n of th e Eighth and Fourteenth Amendment s and request s that onl y t rained medical personnel administer the drugs. He also asserts a wholly frivolous claim, allegedly under the Sixth Amendment’s Confro nt ation Clause, asking that “the identification of the licensed medical professions be published to th e public to ensure th at the syst em will have a check and balance.” The district court dismissed Dickson’s suit because he was dilat ory in filing his action fo r equitable relief. We AFFIRM. “[A] stay of execution is an equitable remedy. It i s not available as a matter o f right, and equity must be sensitive to the State’s strong int erest in enforcing its criminal judgments without undue int erference from th e federal courts.” Hill v. McDonough , 126 S.Ct. 2096, 2104 (2006). When “a claim could have been brought at such a time as to allo w consideration of the merit s wit hout
r equiring entry of a stay ,” th ere is a “strong equitable presumption against the gr ant of a stay.” Nelson v. Campbel l , 541 U.S. 637, 650 (2004); s ee also Gomez v. United States Dist. Court for Northern Dist. of Cal. , 503 U.S. 653, 654 (1992) (per curiam) (noting that the “last-minute nature of an application” or an applicant’s “attem pts to manipulate” the judicial process may be grounds fo r denial of a stay). Dickson waited until April 26, 2006, the aft ernoon of the day of his scheduled execution, to file a manner-of-execution challen ge with the di strict court. He could have filed his manner-ofexecution challenge at any time aft er April 26, 2000, when his conviction became final o n di rect review. S ee Neville v. Johnson , 440 F. 3d 221, 222 (5th Ci r. 2006) (“A challenge to a method of execution may be filed any time aft er the plaint iff’s conviction has become final on direct review.”)
. Dickson has not shown a justifiable reason fo r why he waited until the aft ernoon of the day of his1 Dickson asserts that he had no information to contest the exact com position of the threedrug cocktail used in let hal inject io ns until now because Texas Departm ent of Criminal Justice “o fficials have hist orically refused to release the protocol s upon request” and the “protocols were disclosed only recently as a result of similar litigation.” We are persuaded th at Dickson could have discovered th e exact chemical com position of Texas’ execution protocol th rough normal discovery procedures had he chosen to timely file his action, and hence, his lack of info rmation does not excuse th e delay. -3- execution to challenge th e manner-of-execution, 1 and therefore, we find it improper to grant the equitable relief he seeks. S ee, e.g. , Reese v. Livingston , 453 F.3d 289 , 291 (5th Cir. 2006) (“[A] plaint iff cannot wait until a stay must be granted to enable him to develop facts and take the case to tri al—not when th ere is no sati sfactory explanation fo r the delay.”); White v. Johnson , 429 F.3d 572, 574 (5th Cir. 2005) (di smissing manner-of-execution challenge as dilat ory when inmat e waited to file until his “execution [was] imminent ”); Harris v. Johnson , 376 F.3d 414 (5th Cir. 2004) (di smissing
manne r-of

-execution challenge as dilatory even though filed ten weeks before his scheduled execution). Accordingly, we AFFIRM th e district court’s dismissal of Dick son ’s claims. Moreover, Dickson’s counsel is hereby warned th at failure to com ply wit h Fift h Circuit Rule 8.10 wit hout good cause could result in sanctions.