IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-60652

ALAN DALE WALKER; PAUL EVERETT WOODWARD; GERALD JAMES

HOLLAND

Plaintiffs - Appellants

v.

CHRISTOPHER B EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT

OF CORRECTIONS; LAWRENCE KELLY, Superintendent of the Mississippi

State Penitentiary at Parchman

Defendants - Appellees

Appeal from the United States District Court 

for the Northern District of Mississippi

Before JOLLY, BARKSDALE, and HAYNES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

The plaintiffs are inmates who have been sentenced to death. At this point

they are not challenging thatthe State can take their lives; they are challenging

the method of execution. They contend that Mississippi’s lethal injection

protocol is unconstitutional under the Eighth Amendment. The district court

found that the applicable statute of limitations barred the plaintiffs’ § 1983

action and granted summary judgment to the defendants. We reject the

plaintiffs’ argument that the equitable doctrine of laches applies. Because the

United States Court of Appeals

Fifth Circuit

F I L E D

November 24, 2008

Charles R. Fulbruge III

Clerk
No. 08-60652

2

statute of limitations applies, and because the statute was nottolled in this case,

we affirm.

I.

Because this appeal comes to us in a circuitous route, we offer a few

background facts.

On October 18, 2007, Alan Dale Walker, Paul Everett Woodward, and

Gerald James Holland (collectively, the “plaintiffs”) filed this 42 U.S.C. § 1983

action in federal district court against the Mississippi Department of Corrections

and the Mississippi State Penitentiary, challenging the constitutionality of

Mississippi’s lethal injection protocol and seeking a preliminary injunction to

prevent the State from executing them during the pendency of their action. At

that time, Earl Wesley Berry and Dale Leo Bishop, two death-row inmates who

have since been executed, were also plaintiffs. Berry’s execution date, however,

had been set for October 30. The plaintiffs sought additional injunctive relief in

the form of an emergency temporary restraining order to prevent the State from

executing Berry before the action could be litigated.

The State responded on October 19 with a motion to dismiss Berry from

the action. At a hearing on that motion, the State argued that the complaint

was dilatory as to Berry because he had waited until just days before his

scheduled execution to challenge the State’s lethal injection protocol. The State

acknowledged, however, that the other plaintiffs’ executions were notimminent

and told the district court that those plaintiffs were “taking a timely step in

those” – a position from which the State apparently has retreated. The district

court dismissed Berry from the action, and this court affirmed. Berry v. Epps,

506 F.3d 402 (5th Cir. 2007). The Supreme Court of the United States, after

initially staying Berry’s execution, denied his petition for certiorari on April 21,

2008. Berry v. Epps, ___ U.S. ___, 128 S.Ct. 2048 (2008). 
No. 08-60652

3

In the meantime, no progress was made in the remaining plaintiffs’ case.

The State failed to file either an answer or responsive pleading and the plaintiffs

moved for default judgment, which was entered on May 5. The State moved to

set aside the default on May 6 and filed an answer on May 8. The plaintiffs

opposed setting aside the default and, in a cross-motion, asked that the district

court condition relief from default on the State’s agreement, inter alia, not to

assert time-based defenses. On May 16, the district court set aside the default

judgment but denied the plaintiffs’ cross-motion. Walker v. Epps, No. 4:07-CV176, 2008 WL 2095696, at *2 (N.D. Miss. May 16, 2008).

The State moved for summary judgment on May 28 on the sole ground

that the applicable statute of limitations barred the plaintiffs’ § 1983 action. In

their response,the plaintiffs argued that, because they did not seek damages but

instead only sought prospective injunctive relief,the equitable doctrine of laches

– not a statute of limitations – applied to their action. In the alternative, the

plaintiffs argued that even if a statute of limitations applied, it would not bar

their action because (1) the statute should be tolled because they did not know

that they could bring this action, and thus the action did not accrue, before the

Supreme Court issued its opinions in Hill v. McDonough, 547 U.S. 573 (2006),

and Baze v. Rees, __ U.S. __, 128 S.Ct. 1520 (2008); (2) the State’s fraudulent

concealment of its lethal injection protocol tolled the limitations period; (3) the

existing protocol constitutes a continuing tort for which the limitations period

is reset for each wrongful act; and (4) the State is equitably estopped from

asserting a statute of limitations defense. 

The district court rejected the plaintiffs’ arguments. Walker v. Epps, __

F.Supp. 2d __, No. 4:07-CV-176, 2008 WL 2788074, at *8-13 (N.D. Miss. July 15,

2008). First, the district court concluded that Mississippi’s general statute of

limitations, which requires that an action be filed within three years of its

accrual, applied to the plaintiffs’ § 1983 action notwithstanding the fact that
No. 08-60652

4

they sought only prospective injunctive relief. The district court next concluded

that each plaintiff’s cause of action accrued on the later of two dates: the date

direct review of his individual case was complete or the date on which

Mississippi’s lethal injection statute became effective, August 15, 1998. Because

each of the plaintiffs’ actions accrued between 1998 and 1999, the three-year

limitations period for each expired between 2001 and 2002. Finding that the

plaintiffs had failed to file within their respective limitations periods, and

rejecting the plaintiffs’ arguments that their § 1983 action should survive

nonetheless, the district court granted summary judgment for the State on July

15. The plaintiffs promptly appealed.

II.

We review a grant of summary judgment de novo. See, e.g., Hathaway v.

Bazany, 507 F.3d 312, 319 (5th Cir. 2007). The plaintiffs sought, under § 1983,

to enjoin the State from executing them by a method of lethal injection that they

allege unnecessarily risks pain and suffering, in violation of the Eighth

Amendment. In Hill v. McDonough, 547 U.S. 573 (2006), the Supreme Court of

the United States held that an inmate may properly challenge a state’s method

of execution under § 1983. We must decide here the appropriate means of

testing the timeliness of such § 1983 method-of-execution actions, which purport

to seek equitable, not legal, relief. We will address two questions that this

circuit has not had prior occasion to address: whether a statute of limitations,

as opposed to the equitable doctrine of laches, applies to § 1983 method-ofexecution claims and, if a statute of limitations applies, at what point the cause

of action accrues. We review such questions of law de novo. See Newby v. Enron,

___ F.3d ___, 2008 WL 4113964, at *3 (5th Cir. 2008); Clymore v. United States,

217 F.3d 370, 373 (5th Cir. 2000); In re Hinsley, 201 F.3d 638, 644 (5th Cir.

2000).
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5

A.

We begin our analysis by reference to Wilson v. Garcia, 471 U.S. 261

(1985). There the Supreme Court held that § 1983 actions are best characterized

as personal injury actions and, as such, should be subject to state statutes of

limitations for general personal injury actions. Id. at 279. Wilson recognized

that applying various limitations periods to separate § 1983 actions had been

problematic. The court explained that “practical considerations” supported a

“simple, broad characterization of all § 1983 claims”:

The experience of the courts that have predicated their

choice of the correct statute of limitations on an

analysis of the particular facts of each claim

demonstrates that their approach inevitably breeds

uncertainty and time-consuming litigation that is

foreign to the central purposes of § 1983.

Id. at 272.

To avoid such “useless litigation on collateral matters,”the Supreme Court

directed courts of each state to select:

the one most appropriate statute of limitations for all §

1983 claims. The federal interests in uniformity,

certainty, and the minimization of unnecessary

litigation all support the conclusion that Congress

favored this simple approach.

Id. at 275.

The question for us is whether the broad and inclusive language of Wilson

directs that we apply a statute of limitations to the plaintiffs’ arguably unusual

§ 1983 case. The plaintiffs contend that their § 1983 action is not a typical tort

action, but instead a suit in equity; consequently it is not subject to the statute

of limitations that would otherwise apply in the usual § 1983 case. They

distinguish their action by pointing out that unlike typical § 1983 cases, they

seek no monetary damages. Because they seek only prospective injunctive relief,
No. 08-60652

6

they argue that this court should revert to the traditional manner of judging the

timeliness of equitable claims – that is, the doctrine of equitable laches. 

In support of their argument, the plaintiffs direct our attention to

Holmberg v. Armbrecht, 327 U.S. 392 (1946), in which the Supreme Court held

that in suits seeking solely equitable relief, statutes of limitations do not apply.

Id. at 396. In Holmberg, creditors sought to hold shareholders of a debtor bank

liable under federal law for the bank’s debts. The Supreme Court concluded the

suit was one in equity and “[t]raditionally and for good reasons, statutes of

limitation are not controlling measures of equitable relief.” Id. at 396. The

plaintiffs also point to precedent in this circuit that stands for the proposition

that wholly equitable actions are subject to the doctrine of laches, not statutes

of limitations. Envtl. Def. Fund, Inc. v. Alexander, 614 F.2d 474, 478 (5th Cir.

1980) (“when an equitable remedy was sought, the statute of limitations that

ordinarily would apply to a legal right was inapplicable”); Perry v. Allen, 239

F.2d 107, 114 (5th Cir. 1956) (applying Holmberg). On the basis of these cases,

which did not arise under § 1983, the plaintiffs urge us to find that the equitable

doctrine of laches applies to all method-of-execution actions and, as applied,

permits the plaintiffs’ action here.

In short, the plaintiffs characterize their case as equitable in nature, and

contend that statutes of limitation do not generally apply in equity. But

although the plaintiffs ably argue their case is one in equity and should be

treated differently, we hold that Wilson commands otherwise. 

The Supreme Court was fully aware when it decided Wilson that actions

seeking equitable relief only could be brought under § 1983. See, e.g., Marsh v.

Chambers, 463 U.S. 783 (1983) (§ 1983 action to enjoin Nebraska Legislature

from opening its sessions with prayer); Sup. Ct. of Va. v. Consumers Union of

U.S., Inc., 446 U.S. 719 (1980) (§ 1983 action to declare state disciplinary rules

governing conduct of attorneys unconstitutional and to enjoin state from
No. 08-60652

7

enforcing rules); Rizzo v. Goode, 423 U.S. 362 (1976) (class action under § 1983

seeking sweeping equitable relief from municipality’s alleged unconstitutional

practices). If the Supreme Court had intended to exclude such actions from its

rule, it would have explicitly stated so in Wilson. It is plain, however, that the

Court, in directing courts in each state to select “the one most appropriate

statute of limitations for all § 1983 claims,” made no exception in Wilson for §

1983 actions that seek only equitable relief. 471 U.S. at 275 (emphasis added).

Indeed, the Court was seeking to avoid the precise dispute we face here: The

Court observed that if the statute depended on the particular facts or legal

theory, “counsel could almost always argue, with considerable force, that two or

more periods of limitations should apply to each § 1983 claim.” Id. at 274-75.

In the same vein, Wilson stressed that resolving the question of whether an

action had been timely filed should be “an uncomplicated task for judges,

lawyers, and litigants, rather than a source of uncertainty, and unproductive

and ever-increasing litigation.” Id. at 275. Wilson’s strongly expressed interests

in judicial economy suggest to us a finding of no exception for actions seeking

equitable relief.

In the light of such unambiguous language and the policy reasons

asserted, we read Wilson to compel the conclusion that an applicable statute of

limitations applies with equal force to method-of-execution actions,

notwithstanding the kind of relief they request. 

B.

Our holding is not inconsistent with prior cases addressing emergency

motions for stays of execution. The plaintiffs point out, and we acknowledge,

that in prior cases we have referred to the equitable doctrine of laches to

determine whether a stay should be granted pending review of a § 1983 methodof-execution action. See Neville v. Johnson, 440 F.3d 221 (5th Cir. 2006) (seeking

last-minute stay of execution); Harris v. Johnson, 376 F.3d 414 (5th Cir. 2004)
No. 08-60652

8

(seeking last minute injunction). In those cases, however, this court did not

reach the issue of eligibility for § 1983 relief, because the plaintiff inmates in

both cases were seeking temporary stays of execution to permit examination of

the merits of their § 1983 case. Neville, 440 F.3d at 223 (action filed two days

before scheduled execution was dilatory); Harris, 376 F. 3d at 417 (“We do not

decide whether [White] properly states a claim under § 1983, because even if he

does, he is not entitled to the equitable relief he seeks” due to his dilatory filing.).

Such eleventh-hour filings are naturally suspect. Nelson v. Campbell, 541 U.S.

637, 650 (2004) (“[T]here 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.”); Scripps-Howard

Radio v. F.C.C., 316 U.S. 4, 10-11 (1942) (citations omitted) (“‘A stay is not a

matter of right, even if irreparable injury might otherwise result to the

appellant. It is an exercise of judicial discretion. The propriety of its issue is

dependent upon the circumstances of the particular case.’”). That this court

spoke of principles of equity to the requests for stays in those specific cases does

not preclude our following the unequivocal teaching of Wilson that statutes of

limitations apply generally to the merits of the underlying § 1983 method-ofexecution actions.

The plaintiffs continue their argument by citing White v. Johnson, 429

F.3d 572 (5th Cir. 2005), for the proposition that an inmate may challenge a

state’s method of execution at any time after his conviction and sentence become

final on direct review. In fact we did state that White’s action would have been

appropriately filed after his conviction and sentence became final on direct

review. Id. at 573. But that language only acknowledges that it would be

inappropriate for an inmate to challenge a state’s method of execution before his

own death sentence has been affirmed on appeal. It cannot be understood to

permit an inmate an unlimited time period in which to file such actions. White
No. 08-60652

9

does not address the issue we decide today and the reading of White that the

plaintiffs assert does not comply with Wilson’s directive to select in each state

a statute of limitations for all § 1983 actions. 

C.

We are not the first court to address whether a statute of limitations, as

opposed to the equitable doctrine of laches, applies to § 1983 method-of-execution

actions. Indeed two other circuits have already reached the same conclusion we

reach today. Both the Sixth and Eleventh Circuits have in the past year

addressed the timeliness of § 1983 method-of-execution actions. Cooey v.

Strickland, 479 F.3d 412 (6th Cir. 2007), cert. denied, __ U.S. __, 128 S.Ct. 2047

(2008); McNair v. Allen, 515 F.3d 1168 (11th Cir.), cert. denied, Callahan v.

Allen, __ U.S. __, 128 S.Ct. 2914 (2008). The panel majorities in both cases cited

Wilson for the general rule that § 1983 actions should be in each state subject to

the statute of limitations for general personal injury actions. Cooey, 479 F.3d at

416 (citing Wilson, 471 U.S. at 275-76); McNair, 515 F.3d at 1174 (citing Wilson,

471 U.S. at 275-76). Of note, neither case’s dissent disputed that a statute of

limitations applied. Cooey, 479F.3d at 419 (Gilman, J., dissenting); McNair, 515

F.3d at 1178 (Wilson, J., dissenting).

There is, however, a district court opinion, Jones v. Allen, 483 F.Supp. 2d

1142 (M.D. Ala. 2007), that takes the plaintiffs’ point of view. That case

distinguished between whatit called a typical § 1983 case and an atypical § 1983

case: the former seeks relief for a tortious act that has already occurred, while

the latter seeks relief for a tortious act that will occur in the future. Because the

inmate’s method-of-execution action was an atypical § 1983 case, and because

the allegedly tortious act (execution) had not occurred, the court reasoned the

statute of limitations could not have run, much less have barred the action. Id.

at 1149-50. Arguably method-of-execution actions are atypical in that they seek

only prospective injunctive relief. Nevertheless, actions seeking only prospective
No. 08-60652

1

In her dissent to this court’s opinion in Walker v. Epps, __ Fed. App’x __, 2008 WL

2796878 (5th Cir. July 21, 2008) (unpublished), which denied Dale Leo Bishop’s emergency

application for injunction or stay of execution, Judge King cited the district court’s opinion in

Jones for the proposition that “[r]egardless of the fact that it may be framed as a § 1983 action,

Bishop’s claim seeks an equitable remedy.” Id. at *6 (King, J., dissenting). Nevertheless,

Judge King agreed with the majority that it was unwise to decide, in the context of Bishop’s

application, whether all § 1983 method-of-execution actions should be subject to statutes of

limitations. Id. Such a question “is a difficult one that deserves our full and deliberate

consideration.” Id.

10

injunctive relief under § 1983 were not unheard of when the Supreme Court in

Wilson expressed itself in all-encompassing language. Because they remain §

1983 actions, they are subject to the rules applicable to all § 1983 actions. To

adopt the district court’s reasoning would require us to create an exception to a

clearly-stated, fair, and rational rule for method-of-execution actions, and for

non-compelling reasons. We think Wilson unambiguously forecloses such an

exception.1

In sum, we conclude under Wilson that statutes of limitations apply with

equal force to § 1983 method-of-execution actions, notwithstanding the nature

of the relief they request.

III.

Having concluded that statutes of limitation apply to § 1983 method-ofexecution actions, we turn our attention to the question of when such causes of

action accrue. 

We determine the accrual date of a § 1983 action by reference to federal

law. Wallace v. Kato, __ U.S. __, 127 S.Ct. 1091, 1095 (2007). Federal law holds

generally that an action accrues when a plaintiff has “‘a complete and present

cause of action,’” or, expressed differently, “when ‘the plaintiff can file suit and

obtain relief.’” Id. (quoting Bay Area Laundry and Dry Cleaning Pension Trust

Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997) (citations omitted)). As

we ourselves have stated, the limitations period begins to run “the moment the

plaintiff becomes aware that he has suffered an injury or has sufficient
No. 08-60652

11

information to know that he has been injured.” Piotrowski v. City of Houston,

237 F.3d 567, 576 (5th Cir. 2001) (quoting Russell v. Bd. of Trustees, 968 F.2d

489, 493 (5th Cir. 1992), cert. denied, 507 U.S. 914 (1993)). 

The district court concluded that such causes of action necessarily accrue

on the later of two dates: the date direct review of an individual case is complete

or the date on which the challenged protocol was adopted. We agree with the

district court. 

Although we have not had prior occasion to rule on this issue, our prior

cases have presaged the rule we adopt here. In White, we observed that an

inmate may challenge a state’s method of execution at any time after his

conviction and sentence have become final on direct review. 429 F.3d at 574. In

Neville v. Johnson, we reiterated that a plaintiff could not wait until days before

his scheduled execution to file his action, when he could have filed it

immediately after his conviction became final. 440 F.3d at 222-23 (citing White,

429 F.3d at 574). And in Harris v. Johnson, we dismissed an argument that a

plaintiff should wait until his habeas relief is denied to challenge a state’s

method of execution. 376 F.3d 414, 417-18 (5th Cir. 2004). These cases leave

little doubt that a § 1983 method-of-execution action is most appropriately filed

after a plaintiff’s conviction and sentence have become final on direct review.

We therefore hold the limitations period begins to accrue on the date direct

review of a plaintiff’s conviction and sentence is complete. Of course, in the

event a state changes its execution protocol after a death-row inmate’s conviction

has become final, the limitations period will necessarily accrue on the date that

protocol change becomes effective. 

We are not the first circuit to attach accrual to these events. The Sixth

Circuit in Cooey held that the statute of limitations for a method-of-execution

challenge accrues at the completion of direct review in the state court or, if the

protocol has changed, the date the new protocol was instituted. Cooey, 479 F.3d
No. 08-60652

2 Direct review of Dale Leo Bishop was complete on October 22, 2002. See Bishop v.

State, 812 So.2d 934 (Miss. 2002), cert. denied, 537 U.S. 976 (2002). At the time the district

court entered summary judgment, Bishop was still a plaintiff in this action. Subsequently, the

State set Bishop’s execution date for July 23, 2008. On July 17, Bishop applied for an

emergency injunction or stay of execution, pending our consideration ofthe case now before us.

On July 21, this court denied his application. Walker v. Epps, ___ Fed. App’x ___, 2008 WL

2796878 (5th Cir. July 21, 2008) (unpublished).

12

at 422. The Sixth Circuit specifically rejected the “problematic” arguments that

a method-of-execution action accrues at the time of execution or after all state

and federal remedies have been exhausted. Id. at 418-19. The Eleventh Circuit

in McNair held similarly that a method-of-execution action accrues at the

completion of direct review or on the date the challenged protocol became

apparent. McNair, 515 F.3d at 1174. Our rule is thus in keeping with precedent

in other circuits.

In the light of the rule we adopt, the district court correctly found that the

statute of limitations has run for each of the three remaining plaintiffs. Each

of the plaintiffs’ individual § 1983 actions accrued between 1998 and 1999.

Direct review of Alan Dale Walker’s conviction and sentence was complete on

December 2, 1996. See Walker v. State, 671 So.2d 581 (Miss. 1995), cert. denied,

518 U.S. 1011 (1996). Therefore, his cause of action accrued on August 15, 1998,

the date the statute adopting lethal injection in Mississippi became effective.

Direct review of Paul Everett Woodward’s conviction and sentence was complete

on March 29, 1999. See Woodward v. State, 726 So.2d 524 (Miss. 1997), cert.

denied, 526 U.S. 1041 (1999). Direct review of Gerald James Holland’s

conviction and sentence was complete on October 5, 1998. See Holland v. State,

705 So.2d 307 (Miss. 1997), cert. denied, 525 U.S. 829 (1998).2 We have just

concluded that under Wilson statutes of limitation apply to § 1983 method-ofexecution actions and,therefore,the plaintiffs’ § 1983 actions were subjectto the

Mississippi statute of limitations for general personal injury actions. James v.

Sadler, 909 F.2d 834, 836 (5th Cir. 1990) (Mississippi’s residual statute of
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13

limitations applies in § 1983 actions). That statute requires plaintiffs to file an

action within three years of its date of accrual. MISS. CODE ANN. § 15-1-49. The

plaintiffs each had three years to file their action. Thus, Walker’s and Holland’s

limitations periods expired in 2001, and Woodward’s limitations period expired

in 2002. Their shared § 1983 action, which they did not file until 2007, was and

is barred by the statute of limitations.

IV.

This determination does not, however, end our analysis. The plaintiffs ask

us to find that even if their action was subject to the statute of limitations, the

statute was tolled. Just as we borrow the forum state’s statute of limitations for

§ 1983 purposes, we borrow also the state’s tolling principles. Hardin v. Straub,

490 U.S. 536, 538-39 (1989); Rodriguez v. Holmes, 963 F.2d 799, 803 (5th Cir.

1992). The plaintiffs argue here, as they did in the district court, that (1) the

statute should be tolled because they did not know that they could bring this

action, and thus the action did not accrue, before the Supreme Court issued its

opinions in Hill v. McDonough, 547 U.S. 573 (2006), and Baze v. Rees, __ U.S. __,

128 S.Ct. 1520 (2008); (2) the State’s fraudulent concealment of its lethal

injection protocol tolled the limitations period; (3) existing protocol constitutes

a continuing tort for which the limitations period is reset for each wrongful act;

and (4) the State is equitably estopped from asserting a statute of limitations

defense. We address each of their arguments in turn.

Firstthe plaintiffs argue the statute of limitations should be tolled because

they could not have known that they could bring this action, and thus the action

could not have accrued, before the Supreme Court decided Hill v. McDonough,

547 U.S. 573 (2006) (inmate may properly challenge a state’s method of

execution under § 1983). They argue further that they could not have known the

constitutional scrutiny to which Mississippi’s lethal injection protocol would be

subjected before Baze v. Rees, __ U.S. __, 128 S.Ct. 1520 (2008) (plurality
No. 08-60652

14

opinion) (protocol that incorporated various safeguards did not present

“substantial” or “objectively intolerable” risk of serious harm). We have

previously explained, however, that although Hill permitted method-of-execution

challenges under § 1983, it did not have the effect of restoring otherwise

untimely method-of-execution actions. Reese v.Livingston, 453 F.3d 289, 290-91

(5th Cir. 2006) (“[W]e are not persuaded that Hill has undermined the decisions

of this Court insisting upon a timely filing or that until Hill the suit could not

have been brought.”). Moreover, the fact that the scrutiny to be applied in

method-of-execution cases was previously unclear should not have precluded the

plaintiffs from filing their actions. As the district court pointed out, as early as

1997 the United States District Court for the Southern District of Mississippi

recognized thatinmates could challenge Mississippi’s lethal injection protocol in

a § 1983 suit. Walker v. Epps, __ F.Supp. 2d __, No. 4:07-CV-176, 2008 WL

2788074, at *5 (N.D. Miss. July 15, 2008) (citing Booker v. Murphy, 953 F.Supp.

756 (S.D. Miss. 1997)). Hence, neither Hill nor Baze reset the plaintiffs’

limitations period.

The plaintiffs next allege that the State fraudulently concealed its lethal

injection protocol and thus they could not have discovered the cause of action

within the limitations period. Mississippi law tolls a statute of limitations if the

cause of action is fraudulently concealed. MISS.CODE ANN. § 15-1-67. A plaintiff

must show, however, that (1) some affirmative act by the defendant was

designed to prevent, and did prevent, discovery of the claim and (2) despite the

plaintiff’s due diligence, he could not have discovered the claim. Andrus v. Ellis,

887 So.2d 175, 181 (Miss. 2004). Here, the plaintiffs allege only that in other

cases the State has resisted requests to disclose the protocol. They allege that,

when the State did disclose the protocol in a separate case in 2006, the

disclosures were inaccurate and inadequate. They further complain that the

State did not fully disclose its protocol until it moved for summary judgment in
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15

this case. The district court, however, found no evidence that the State

affirmatively acted to conceal its lethal injection protocol. As the district court

noted, Mississippi adopted its lethal injection protocol in 1998. MISS.CODE ANN.

§ 99-19-51. Since then, it has been no secret that Mississippi uses a three-drug

combination used in other states. See, e.g., Oken v. State, 851 A.2d 538, 539 n.2

(Md. 2004) (Bell, C.J., dissenting) (acknowledging states’ lethal injection

protocols). We cannot accept that the State fraudulently concealed the plaintiffs’

cause of action, given that the plaintiffs were aware that they were subject to

execution by lethal injection from the moment their convictions became final.

The plaintiffs could have filed their § 1983 action on the basis of this fact alone,

within the limitations period. They did not need the detailed information they

allege the State belatedly disclosed to file their action. The plaintiffs have failed

to show the State affirmatively acted to conceal their cause of action and,

accordingly, the statute was not tolled on the basis of fraudulent concealment.

The plaintiffs next argue that the existing protocol constitutes a

continuing tort for which the limitations period resets at each wrongful act.

Under Mississippi law, a continuing tort is “one inflicted over a period of time;

it involves a wrongful conduct that is repeated until desisted.” Stevens v. Lake,

615 So.2d 1177, 1178 (Miss. 1993). We previously stated that the doctrine does

not apply when a plaintiff “simply alleges that ‘harm reverberates from one

wrongful act or omission.’” Bellum v. PCE Constructors, Inc., 407 F.3d 734, 743

(5th Cir. 2005) (quotingSmith v.Franklin Custodian Funds, Inc., 726 So.2d 144,

149 (Miss. 1998)). We do not think the doctrine of continuing torts applies here.

The plaintiffs are individually subject to execution, and that act will be a single

event. The challenged protocol will affect each plaintiff but once. Under these

circumstances, the protocol does not constitute a continuing tort.

Finally, the plaintiffs assert that because the State did nottimely respond

to their complaint, and this somehow resulted in truncating discovery, it should
No. 08-60652

16

be equitably estopped from asserting a statute of limitations defense. The

plaintiffs’ brief devotes hardly more than a couple of sentences to this point and

generally we do not pay attention to unargued assertions. In any event, the

plaintiffs’ suggestion is meritless because, as we have already observed, the

plaintiffs were well aware that they were subject to lethal injection from the

moment their convictions became final, and could have filed their action on the

basis of that fact alone before the statute of limitations had run. Furthermore,

they indicate no possibility of evidence that might have been discovered that

would have had any effect on the statute of limitations. 

In sum, there is no reason to hold that the statute of limitations has been

tolled.

V.

We have held that Wilson, which directs that all § 1983 actions should be

in each state subject to one statute of limitations, made no exception for § 1983

actions seeking only equitable relief. Therefore, a statute of limitations applies

to the plaintiffs’ § 1983 method-of-execution action, notwithstanding the nature

of the relief they request. We have also held that the statute was not tolled in

this case. Because the statute of limitations applies, and because it was not

tolled, the judgment of the district court is

AFFIRMED.