* Pursuant to 5 TH C IR . R. 47.5, the court has determ ined th at this opinio n should not be published and is no t precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. - 1 - United States Court of A ppeals Fifth Circuit 

## FILED October 25, 2006 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________________________ No. 06-70046

_________________________ GREGORY LYNN SUMMERS, Pl aint iff- Appellant, versus TEXAS DEPARTMENT OF CRIMINAL JUSTICE BRAD LIVINGSTON, Executive Director, Texas Department of Criminal Justice, NATHANIEL QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, C. THOMAS O’REILLY, Warden, Huntsville Unit, and UNKNOWN EXECUTIONERS, Defendants-Appellees.

__________________________________________________ Appeal from the United States District Court fo r the Western District of Texas (No. 1:06-CV-844-LY)

__________________________________________________ Before JONES, Chief Judge, BENAVIDES, and CLEMENT, Circuit Judges. PER CURIAM: * Pl aint iff Gregory Lynn Summers (“Summers”), a death-sentenced prisoner, appeals the district court’s dismissal of his 42 U.S.C. § 1983 com plaint seeking “a permanent injunct io n barring- 2 -

Defendants from inject ing pancuronium bromide or potassium chloride, individually or [in]
com binat io n, int o him during the administ ration of his let hal inject io n” on the basis that such inject io ns constitute cruel and unusual punishme n t in vio lat io n of the Eighth and Fourteenth Amendment s. Summers also moves the court for an injunction pending appeal or, in the alternative, fo r a stay of execution. The district court’s dismissal of the complaint is AFFIRMED and the
mo tion fo r an injunct io n pending appeal or, in the alt ern ative, for a stay of execution is DENIED AS MOOT. I. FACTS AND PROCEEDINGS Summers was convicted of capital murder and sentenced to death in August 1991. Aft er the state appeals process failed to provide him wit h relief, the Unit e d States Suprem e Court denied Summers’s peti

tion fo r a writ of certiorari on Oct ober 7, 1996, thus rendering his conviction and sentence final on direct review
. Summers v. Texas , 519 U.S. 826 (1996). After unsuccessfully seeking habeas relief in state court, Summers sought habeas relief in federal court. Aft er the district court denied his writ but grant ed a COA on three of his claims, Summers filed an Application for Additional Certificate of Appealability with this court on August 3, 2004. In a published opinio n of December 2, 2005, this court denied Summers’s application fo r additional COAs and affirmed the dis tri ct court’s deni al o f habeas relief. S ummers v. Dretke , 431 F.3d 861 (5th Cir. 2005). On March 15, 2006, Summers’s execution was set for October 25, 2006. On October 2, 2006, the Unit ed States Supreme Court denied Summers’s peti tion fo r a writ of certiorari
. On October 10, 200 6, Summers filed a § 1983 complaint in state court and sought a tem porary injunct io n or, in t he alternative, a tem porary restraining order. The defendants removed- 3 -

the case to federal court on October 18, 2006. The defendants also filed a mo ti on to di smiss in federal court on October 18, 2006. Summers filed a response on October 19, 2006. After a hearing, the district court granted the m otion to di smiss in a writ ten order of October 24, 2006. Summers appealed on October 25, 2006. II. STANDARD OF REVIEW The district court may dismiss a com p laint under Rule 12(b)(6) only if it “appears beyo nd doubt th at the plaint iff can prove no set of facts which would entitle him to rel ief.” C onley v. Gibson , 355 U.S. 41, 45–46 (1957). This co urt reviews a di strict court’s grant of a motion to dismiss de novo. Chiras v. Miller , 432 F.3d 606, 610 (5th Cir. 2005). III. DISCUSSION A. Propriety of using § 1983 to challenge the method of execution In Hill v. McDonough , the United States Supreme Court held that a § 1983 claim is a permissible way to challenge the met hod of execution if the “challenge appears to leav e the State free to use an alt ernative let hal inject io n procedure.” 126 S. Ct. 2096, 2102 (2006). Essentially, if the grant of injunct ive relief would prevent the State from conducting the execution, then the prayer fo r rel ief challenges the sentence itself and must be brought in a habeas peti tion. I d. at 2101. The parties do not dispute th at the Texas stat utes do not mandate the use of the two drugs Summers challenges, and accordingly a permanent injunct io n in Summers’s favor would not prevent the State from executing him. Summers’s claim, therefore, is properly brought as a § 1983 cause of action. B. Dilatory filing “[A] challenge to a me th od of execution may be filed at any time after the plaintiff’s conviction has become final on direct review .” S ee, e.g., Neville v. Johnson , 440 F.3d 221, 222 (5th- 4 -

Cir. 2006) (emphasis added) (affirming the district court’s dismissal of a § 1983 action challenging the met hod of execution as dilat ory); White v. Johnson , 429 F.3d 572, 574 (5th Cir. 2005) (affirming dismissal on dilat oriness grounds and agreeing “t hat when [petitioner’s] conviction became final on direct review, his challenge to the State’s met hod of execution
. . . would have been appropri atel y filed at any time thereafter and need not await an imminent execution date”). Summers’s conviction became final on direct review when the Unit ed States Suprem e Court denied his petition for a writ of certiorari on October 7, 1996. To the extent th at Sum

mers argues that his action is not dilatory because it was filed o nly eight day s after denial of the certiorari petition in his h abeas proceeding, the same argument w a s clearly rejected by this court in Harris v. Johnson
. 376 F.3d 414, 417 (5th Cir. 2004). In responding to the same contention raised here, the court stated: That argument is nothing mo re th an a restatem ent of the very thing the plaint iff is not entitled to do under Gomez , 503 U.S. at 654, 112 S. Ct. 1652—namely, to wait until his execution is imminent before suing to enjo in the state’s met hod of carrying it out. The denial of certiorari may well have cast the issue in a new and urgent light fo r Harris, but it also entitled the state to set a date fo r, and proceed wit h, his execution.
Id. (vacating a temporary restraining order and dismissing the § 1983 complaint). The Supreme Court in Nelson v. Campbell stated th at “[a] court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.” 541 U.S. 637, 649 (2004); see also Harris , 376 F.3d at 416 (stating th at “o ne of the animat ing principles is Ne lson ' s requirement th at the § 1983 claim not unduly th reaten the state’s abilit y to carry out the scheduled execution”). In W hite , this court stated th at this doctrine encom passes “l ast-m

inut e § 1983 met hod of execution challenges as well as last-minute stay requests.” 429 F.3d at 573. “The principles enunciated by this Court are equally applicable to all ty pes of injunct ive relief, including1 Doyle is further irrelevant because it is distinguishable on its facts. D oyle principally rejected the

appellant's challenge to the Texas let hal inject io n proc edure on the basi s that appellant had not provided any evidence at tri al to sustain his position. The court declined to rule "when the record is no t sufficiently developed." Id. at *4. Also , in Doyle , the appellant was challenging let hal inject io n on direct appeal. The court - 5 - permanent injunctions, sought by inmates facing imminent execution.” Id. at 574. Summ ers’s complaint contains only a § 1983 claim alleging violation of the Eighth and Fourteenth Amendment s of the Unit ed States Constitution. Such a case presents only a federal question. E ubanks v. McCotter , 802 F.2d 790, 793 (5th Cir. 1986) (noting th at a claim under § 1983 by inmat es alleging vio lat i ons by corrections of ficers “invo ked general ‘federal question’ jurisdiction”). As such, federal substantive law clearly applies. Erie R.R. Co. v. Thompkins , 304 U.S. 64, 78 (1938) (“Except in mat ters governed by the Federal Constitution
or by acts of Congress, the law to be applied in any case is the law of the state.”). In addressing a federal question, the court applies federal law. Summers argues th at, because this § 1983 action was init ially filed in state court and was removed to federal court by the defendant, this co urt should apply state law to the timing of the claim. Summers argues that this court should rely on D oyle v. State , an unpublished Te xas Court of Criminal Appeals direct appe al decision, for the proposi tion that the § 1983 claim is timely be cause the claim was not ripe until the execution was imminent. 2006 WL 1235088 (Tex. Crim. App. May 10, 2006). Doyle is not even controlling Texas precedent. The printed version of D oyle attached to Summers's pleadings in the district court states that it is "For Educational Purposes Only" and that "Unpublished Opinions may not be cit ed as Authority" pursuant to a Texas procedural rule. Doyle is clearly labeled "Do Not Publish." See Doyle , 2006 WL 1235088. 1held th at as such , “the method in which the lethal injection is currently administered is not

determ inat ive of the way it will be administ ered at the mo ment of appellant’s execution.” I d. at *4. Doyle's case had not even proceeded th rough the com

pletion of direct appeal, much less th rough the federal appellate process on habeas review, when the court found the challenge not yet ripe. Here, by contrast, Summers had not only exhausted direct review, but nearly all possibility of success on collat eral review, and he has had today 's execution date scheduled since March 2006. In the ensuing nearly seven months, the federal courts have repeatedly denied last-minute § 1983 challenges to the Texas lethal injection procedure, and in so doing, the state has doggedl y adhered to i ts current m

ethod. Doyle ’s com

ment about ri

peness has lit tle if anyt hing to do wi th the posture of Summers's case as of October 10, when he finally filed this § 1983 action in state court.
- 6 - In addition, Summers cit es to Ex parte O’Brien , a Texas Court of Criminal Appeals decision in which fo ur judges of the court, in concurring, discussed the merit s of the peti ti on er’s Eighth Amendment argument. 190 S.W.3d 677, 678 (Tex. Crim. App. 2006). In O ’Brien , these fo ur judges noted in a fo otn ote th at Doyle rejected a similar challenge on direct appeal as unripe but th at “[s]uch a claim certainly is ripe for review once an execution date i s set.” Id. at 679 n.2. Even if the “rule of Doyle and O’Brien ” applied to this action, which it does not, Summers’s argument is still wit hout merit
. The mere fact that at some time in the past the claim may have been unripe hardly indicates th at this claim is not dilat ory when brought two weeks before the execution. Simply because judges of the Texas Court of Criminal Appeals chose to consider the subst ance of similar claims in t he habeas context filed only one week before an execution date does not create a rule that a § 1983 complaint filed in a similar manner is not dilat ory . See id. at 678. Counsel for Summers could have filed this complaint as early as October 1996. Moreover, the execution date of October 25, 2006, was set in March 2006. The filing o f t his complaint nearly
seven mo nt hs lat er, on October 10, 2006, was dilat ory and renders the com plaint wit hout merit
. S ee White , 429 F.3d at 573 (noting th at courts may account fo r “t he last-minute nature of an application”- 7 -

fo r an injunction or a stay in determ ining whether relief is warranted) (internal quotation omitted). The court can discern no credible reason for thi s delay other than a contemptuous effort to circumvent the procedures already in place. IV. CONCLUSION For the reasons stated above, we AFFIRM the district court’s dismissal of Summers’s § 1983
com plaint
. Summers’s motion for an injunction pending appeal or, in the alternative, for a stay of execution is DENIED AS MOOT.