IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-20750

THOMAS WHITAKER; PERRY WILLIAMS, 

 Plaintiffs - Appellants

v.

BRAD LIVINGSTON, Executive Director of the Texas Department of 

Criminal Justice; WILLIAM STEPHENS, Director, Texas Department of 

Criminal Justice, Correctional Institutions Division; JAMES JONES; 

UNKNOWN EXECUTIONERS, 

 Defendants - Appellees

Appeal from the United States District Court 

for the Southern District of Texas 

USDC No. 4:13-CV-2901

Before PRADO, ELROD, and GRAVES, Circuit Judges.

PER CURIAM:*

Death-row inmates Thomas Whitaker and Perry Williams appeal the 

district court’s Fed. R. Civ. P. 12(b)(1) dismissal of their civil action under 42 

U.S.C. § 1983 asserting violations of their rights to due process, access to 

courts, and to be free from cruel and unusual punishment. Because we 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 22, 2015

Lyle W. Cayce

Clerk

 

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conclude that the district court clearly erred in dismissing the claims on the 

basis that they are not yet ripe, we VACATE the order of the district court and 

REMAND this matter as set out herein.

FACTS AND PROCEDURAL HISTORY

At the end of September 2013, the Texas Department of Criminal 

Justice’s (TDCJ) supply of Nembutal, the brand name of pentobarbital 

prescribed by the current execution protocol, expired. The petitioners had

information indicating that TDCJ had obtained a supply of propofol, 

midazolam and hydromorphone, but they lacked information regarding the 

drugs that TDCJ planned to use in upcoming executions.

As a result of this lack of information, death-row inmates Thomas 

Whitaker, Perry Williams and Michael Yowell filed an original complaint 

under 42 U.S.C. § 1983 on October 1, 2013, asserting violations of their rights 

to due process, to access courts, and to be free from cruel and unusual 

punishment against various representatives of the TDCJ (hereinafter 

collectively referred to as the “State”). Based upon new information that 

Yowell’s imminent execution would be carried out with newly-purchased 

compounded pentobarbital, the plaintiffs sought a temporary injunction. The 

district court denied relief and this court affirmed. Yowell was executed, and 

the district court dismissed him from the case. 

Whitaker and Williams then amended their complaint. The State filed 

a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and the district court 

granted it. Thereafter, Whitaker and Williams (hereinafter collectively 

referred to in the singular as “Whitaker”) filed this appeal.

DISCUSSION

This court reviews a district court’s ruling on a Rule 12(b)(1) motion to 

dismiss for lack of subject matter jurisdiction de novo. Raj v. La. State Univ., 

2

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714 F.3d 322, 327 (5th Cir. 2013). The plaintiff bears the burden of proof that 

jurisdiction exists. Id.1 

Whitaker asserts that the district court’s order is in direct conflict with 

precedent of this court and that it violates due process and access to the courts.

By order dated December 4, 2013, the district court said the claims were 

being dismissed “[b]ecause Thomas Whitaker and Perry Williams do not know 

the means that Texas will select for their execution, their claim of an injury 

from that unknown means is hypothetical. Courts do not address issues that 

are not yet ripe.”

Whitaker asserts that the district court’s ruling is in direct conflict with 

numerous decisions of this court. He is correct. 

This court has repeatedly and consistently maintained that inmates such 

as Whitaker are not entitled to equitable, eleventh-hour injunctive relief based 

on claims under § 1983. As this court has explained: “Method of execution 

cases may be brought in a § 1983 suit instead of a habeas petition, but the § 

1983 claim should not unduly threaten the State’s ability to carry out the 

scheduled execution.” White v. Johnson, 429 F.3d 572, 573 (5th Cir. 2005) 

(internal marks omitted). In White, this court refused to decide whether White 

properly stated a claim under § 1983 because he was not entitled to equitable 

relief “due to his dilatory filing.” White, 429 F.3d at 574. The court also said:

The State concedes that when Harris’s conviction became 

final on direct review, his challenge to the State’s method of 

execution, in the absence of dramatic changes to the State’s 

protocol, would have been appropriately filed at any time

thereafter and need not await an imminent execution date. We 

agree.

1 The State’s assertion that Whitaker sought only injunctive relief and, thus, that this court 

reviews only for an abuse of discretion, is erroneous. Whitaker has not sought only injunctive relief. 

Further, even if Whitaker had sought only injunctive relief, we would conclude that the district court 

abused its discretion.

3

 

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Id. (Internal citation omitted). The court then affirmed the district court’s 

dismissal. See also Neville v. Johnson, 440 F.3d 221, 222 (5th Cir. 2006) (“A 

challenge to a method of execution may be filed any time after the plaintiff’s 

conviction has become final on direct review.”)2 ; and Kincy v. Livingston, 173 

F. App’x 341, 343 (5th Cir. 2006) (“[D]istrict court correctly applied our 

precedent” in dismissing complaint with prejudice because of delay in filing.).

These cases were controlled by this court’s holding in Harris v. Johnson, 

376 F.3d 414 (5th Cir. 2004). In Harris, this court specifically concluded that 

waiting until the execution date was set would be too late, saying:

By waiting until the execution date was set, Harris left the 

state with a Hobbesian choice: It could either accede to Harris’s 

demands and execute him in the manner he deems most 

acceptable, even if the state’s methods are not violative of the 

Eighth Amendment; or it could defend the validity of its methods 

on the merits, requiring a stay of execution until the matter could 

be resolved at trial.

Harris, 376 F.3d at 417. The court then vacated the temporary restraining 

order granted by the district court and dismissed Harris’ complaint.

In this matter, during a status conference on October 17, 2013, the 

district court inquired, “We still have no death warrant?” The district court 

later conveyed his certainty that the parties have no idea what the State of 

Texas will do and indicated that the claims will not be ripe until the death 

warrant is signed, i.e., the execution date is set.

The district court’s statement that “Thomas Whitaker and Perry 

Williams do not know the means that Texas will select for their execution” is 

2 Thomas Whitaker’s conviction was final in 2009. Whitaker v. State, 286 S.W.3d 355 

(Tex. Crim. App. 2009). Perry Williams’ conviction was final in 2008. Williams v. State, 273 

S.W.3d 200 (Tex. Crim. App. 2008).

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not a basis for determining that these claims are not ripe. Instead, that 

statement establishes the lack of information which is part of the very basis 

for the suit. Further, Texas’ current protocol uses the compounded 

pentobarbital from a specific source. So, unless Texas provides a different 

protocol – at which time a new claim could appropriately be filed - the current 

protocol is presumably “the means that Texas will select for their execution.”

If Whitaker were to wait until an execution date was set to file this 

action, he would be unable to stay the execution under this court’s clearly 

established precedent to pursue these claims. This court has clearly held that 

waiting until an execution date is set or until some point closer to execution 

would “serve no purpose but to further delay justice.” Harris, 376 F.3d at 419. 

Based on our case law, Whitaker must be allowed to proceed now. Thus, the 

district court clearly erred in dismissing the claims on the basis that they are 

not yet ripe.

Further, the premature dismissal makes it improper to consider 

Whitaker’s other claims at this point. Though the district court and this court 

found that Whitaker was not likely to succeed in denying the temporary 

restraining order and this court has not looked favorably on similar claims,3

Whitaker’s claims have not been fully developed. Accordingly, we VACATE

the order of the district court and REMAND this matter so that Whitaker is 

able to fully develop the claims based on the existing protocol for an 

appropriate trial on the merits.

3 Sepulvado v. Jindal, 729 F.3d 413 (5th Cir. 2013); Sells v. Livingston, 750 F.3d 478 

(5th Cir. 2014); Trottie v. Livingston, 766 F.3d 450, 452 (5th Cir. 2014).

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