PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

______ 

No. 11-9002 

______ 

ROBERT W. JACKSON, III 

v. 

CARL C. DANBERG, Commissioner, 

Delaware Department of Correction; 

THOMAS L. CARROLL, 

Warden Delaware Correctional Center; 

PAUL HOWARD, 

Bureau Chief Delaware Bureau of Prisons; 

OTHER UNKNOWN STATE ACTORS 

RESPONSIBLE FOR AND PARTICIPATING IN 

THE CARRYING OUT OF PLAINTIFF'S EXECUTION 

Robert W. Jackson, III, individually and 

on behalf of the Certified Class, 

 Appellant 

______ 

On Appeal from the United States District Court 

for the District of Delaware 

(D.C. No. 1-06-cv-00300) 

District Judge: Honorable Sue L. Robinson 
2 

______ 

Argued July 28, 2011 

Before: AMBRO, FISHER and 

HARDIMAN, Circuit Judges. 

(Filed: September 7, 2011 ) 

Helen A. Marino, Esq. 

Maria K. Pulzetti, Esq. 

Michael Wiseman, Esq. (Argued) 

Defender Association of Philadelphia 

Federal Capital Habeas Corpus Unit 

The Curtis Center, Suite 545 West 

Independence Square West 

Philadelphia, PA 19106 

Counsel for Appellant

Elizabeth R. McFarlan, Esq. 

Marc P. Niedzielski, Esq. 

Gregory E. Smith, Esq. 

Paul R. Wallace, Esq (Argued) 

Morgan Zurn, Esq. 

State of Delaware 

Department of Justice 

820 North French Street 

Carvel Office Building, 6th Floor 

Wilmington, DE 19801 

Counsel for Appellees 
3 

______ 

OPINION OF THE COURT 

______ 

FISHER, Circuit Judge. 

 A class of inmates sentenced to death by the State of 

Delaware and named plaintiff Robert W. Jackson, III 

(collectively referred to in this opinion as “Plaintiffs”), appeal 

from the District Court’s denial of their motion to reopen and 

their motion for a stay of Jackson’s execution. After careful 

review, we conclude that the District Court did not abuse its 

discretion, and, accordingly, we affirm. 

I. 

A. Facts 

 This is our second encounter with a 42 U.S.C. § 1983 

challenge related to Delaware’s lethal injection protocol. 

Much of the background factual information in this case is the 

same as we recounted in Jackson v. Danberg, 594 F.3d 210 

(3d Cir. 2010) (“Jackson I”), and so we only will briefly 

outline that background material before setting forth in more 

detail those facts essential to the resolution of this appeal. 

 Delaware law provides that: 

[p]unishment of death shall, in all cases, be 

inflicted by intravenous injection of a substance 

or substances in a lethal quantity sufficient to 
4 

 

cause death and until such person sentenced to 

death is dead, and such execution procedure 

shall be determined and supervised by the 

Commissioner of the Department of Correction. 

DEL. CODE ANN. tit. 11, § 4209(f) (2006 Supp.). The 

statute does not mandate the use of any particular drug or 

series of drugs. 

 On August 29, 2008, the Delaware Department of 

Correction (“DDOC”) instituted a new lethal injection 

protocol (“2008 Protocol”). The protocol calls for the 

sequential intravenous (“IV”) injection of three chemicals 

into an inmate’s bloodstream. The first chemical is sodium 

thiopental, which renders an inmate unconscious. The second 

chemical is pancuronium bromide, a muscle relaxant that acts 

as a paralytic agent. The third and final chemical is 

potassium chloride, which induces cardiac arrest and causes 

the inmate’s death. The 2008 Protocol also calls for the IV 

team, consisting of two people who may have at least one 

year of professional experience,1

 to examine the inmate to 

ensure he is unconscious before the pancuronium bromide is 

administered. The consciousness check requires the warden 

to call the inmate’s name out loud to observe any reaction 

from the inmate. At the same time, a member of the IV team 

assesses the inmate’s consciousness by touching the inmate, 

shaking his shoulder, and brushing his eyelashes. If the 

1

 Those specialists include a certified medical assistant, 

a phlebotomist, an emergency medical technician, a 

paramedic, and a military corpsman. 
5 

 

inmate is not unconscious, the protocol requires the execution 

team to repeat the administration of the first chemical and 

subsequent consciousness checks until the inmate is deemed 

unconscious. 

 Delaware amended its protocol on May 5, 2011. The 

amended protocol, which is before us today, includes only 

one significant difference. Due to a nationwide shortage of 

sodium thiopental, Delaware, along with a number of other 

states, revised its protocol to allow for the use of an 

alternative barbiturate, pentobarbital, as the first chemical to 

be administered. 

B. Procedural History 

 Jackson, a Delaware state inmate convicted of first 

degree murder and sentenced to death by the State of 

Delaware, commenced this action on May 8, 2006. He filed a 

section 1983 action2

 alleging that the State of Delaware’s 

2

 42 U.S.C. § 1983 provides, in pertinent part: 

Every person who, under color of any statute, 

ordinance, regulation, custom, or usage, of any 

State or Territory or the District of Columbia, 

subjects, or causes to be subjected, any citizen 

of the United States or other person within the 

jurisdiction thereof to the deprivation of any 

rights, privileges, or immunities secured by the 

Constitution and laws, shall be liable to the 

party injured[.] 
6 

 

then-existing method of lethal injection created an 

unconstitutional risk of pain and suffering, cognizable under 

the Eighth and Fourteenth Amendments of the United States 

Constitution.3

 The District Court certified a class under Fed. 

R. Civ. P. 23(b) consisting of all Delaware death row inmates 

and appointed class counsel. See Jackson v. Danberg, 240 

F.R.D. 145 (D. Del. 2007). 

 During the course of litigation in the District Court, 

Defendants amended their lethal injection protocol twice. 

Ultimately, the 2008 Protocol was enacted in an effort to 

incorporate the safeguards described by the Supreme Court in 

Baze v. Rees, 553 U.S. 35 (2008), which upheld Kentucky’s 

lethal injection protocol against a challenge under the Eighth 

Amendment. Upon adoption of the 2008 Protocol and at the 

direction of the District Court, Defendants moved for 

summary judgment. They argued that the 2008 Protocol fully 

complied with the mandate of Baze and that the lethal 

injection protocol, including the use of sodium thiopental, did 

not constitute cruel and unusual punishment. The District 

Court acknowledged that the DDOC had failed to follow its 

own procedures in certain executions but held that Plaintiffs 

3

 Jackson named the following defendants in his 

complaint: Stanley W. Taylor, Jr., Commissioner, Delaware 

Department of Correction; Thomas L. Carroll, Warden, 

Delaware Correctional Center; Paul Howard, Bureau Chief, 

Delaware Bureau of Prisons; and other unknown Delaware 

officials (collectively, “Defendants”). In February 2007, the 

District Court substituted Taylor with his successor, Carl C. 

Danberg. 
7 

had not shown a “substantial risk of an inadequate dose of 

sodium thiopental.” Jackson v. Danberg, 601 F. Supp. 2d 

589, 599 (D. Del. 2009). The District Court granted summary 

judgment to Defendants and stayed executions pending 

appeal. Id. 

 Plaintiffs appealed, and Defendants cross-appealed the 

stay of executions. We affirmed the grant of summary 

judgment, applying Baze to our analysis. Jackson I, 594 F.3d 

210. We held that to prevail on a claim that a risk of future 

harm runs afoul of the Constitution, an inmate must 

demonstrate that “the conditions presenting the risk must be 

‘sure or very likely to cause serious illness and needless 

suffering,’ and give rise to ‘sufficiently imminent dangers.’” 

Id. at 216 (quoting Baze, 553 U.S. at 50). We noted that “the 

proper administration of sodium thiopental is an 

indispensable link in the lethal injection chain for Eighth 

Amendment purposes, as it ensures that an inmate will not 

suffer under the effects of the second two drugs.” Id. at 225. 

In other words, although “[r]easonable people of good faith 

disagree on the morality and efficacy of capital punishment,” 

Delaware’s 2008 Protocol is not unconstitutional under 

existing Supreme Court precedent. Id. at 230 (quoting Baze, 

553 U.S. at 61). The Supreme Court denied certiorari on 

October 12, 2010. Jackson v. Danberg, 131 S. Ct. 458 

(2010). 

 Shortly after Delaware changed its protocol to include 

pentobarbital as an alternative to sodium thiopental in May 

2011, Plaintiffs filed a motion to reopen under Fed. R. Civ. P. 

60(b)(6) and (d) and a motion to stay Jackson’s execution 

with the District Court. Plaintiffs argued that the substitution 
8 

 

of pentobarbital for sodium thiopental is a factual change that 

undermines the foundations of the prior ruling, constituting an 

exceptional circumstance under Rule 60(b)(6) and a 

circumstance calling for an independent action to prevent a 

miscarriage of justice under Rule 60(d). They relied on an 

expert report written by David B. Waisel, M.D., in support of 

their motion. Defendants, in turn, relied on an expert report 

by Dr. Mark Dershwitz, an anesthesiologist with a Ph.D. in 

pharmacology. The District Court denied both of Plaintiffs’ 

motions. It found that a stay was not warranted because 

Plaintiffs had “not carried their burden to prove that they are 

likely to succeed on the merits of their Eighth Amendment 

claim.” Jackson v. Danberg, 2011 WL 3205453, at *3 (D. 

Del. July 27, 2011). The District Court also denied Plaintiffs’ 

motion to reopen under both Rules 60(b)(6) and 60(d), 

concluding that “the record at bar is insufficient to reopen the 

judgment entered by [it] in 2009.” Id. at *4. Plaintiffs timely 

appealed the judgment of the District Court and filed an 

independent motion for a stay. 

 We denied the motion to stay on July 28, 2011, and 

affirmed the judgment of the District Court with an opinion to 

follow.4

 Following our decision, the Supreme Court denied 

4

 The panel issued its order around 7:00 p.m. on 

July 28, 2011, approximately five hours before the scheduled 

time of execution. 
9 

 

certiorari, and Robert Jackson was executed just after 

midnight on July 29, 2011, by lethal injection.5

II. 

 The District Court had jurisdiction under 28 U.S.C. 

§ 1331. We have jurisdiction pursuant to 28 U.S.C. 

§ 1292(a)(1) to consider the appeal by Plaintiffs from the 

District Court’s denial of injunctive relief and under 28 

U.S.C. § 1291 to consider the appeal by Plaintiffs from the 

District Court’s denial of relief under Fed. R. Civ. P. 60(b) 

and (d). We review a district court’s denial of a stay for 

abuse of discretion, which may be found where its conclusion 

includes the commission of a serious error of law or a mistake 

in considering the facts. Bradley v. Pittsburgh Bd. of Educ., 

910 F.2d 1172, 1175 (3d Cir. 1990). We also review a 

district court’s denial of a Rule 60(b) and (d) motion to 

reopen for abuse of discretion. Morris v. Horn, 187 F.3d 333, 

341 (3d Cir. 1999). 

III. 

A. Stay 

 “[A] stay of execution is an equitable remedy” that “is 

not available as a matter of right, and equity must be sensitive 

to the State’s strong interest in enforcing its criminal 

judgments without undue interference from the federal 

5

 We write on this issue as this appeal was filed on 

behalf of a class, and it impacts appellants other than Jackson. 
10 

courts.” Hill v. McDonough, 547 U.S. 573, 584 (2006). The 

standard for issuance of a stay is like that for issuance of a 

preliminary injunction, and requires consideration of four 

factors: 

(1) whether the stay applicant has made a strong 

showing that he is likely to succeed on the 

merits; (2) whether the applicant will be 

irreparably injured absent a stay; (3) whether 

issuance of the stay will substantially injure the 

other parties interested in the proceeding; and 

(4) where the public interest lies. 

Hilton v. Braunskill, 481 U.S. 770, 776 (1987); Republic of 

Phil. v. Westinghouse Elec. Corp., 949 F.2d 653, 658 (3d Cir. 

1991). In assessing these factors, we underscore that 

“inmates seeking time to challenge the manner in which the 

State plans to execute them must satisfy all of the 

requirements for a stay, including a showing of a significant 

possibility of success on the merits.” Hill, 547 U.S. at 584. 

 Plaintiffs argue that because pentobarbital is not 

approved by the Food and Drug Administration (“FDA”) for 

use as an anesthetic, its performance in the three-drug 

protocol, namely its manner and timing of inducing 

unconsciousness, is unknown and unpredictable and therefore 

violative of the Eighth Amendment. In support of their 

argument that pentobarbital renders the lethal injection 

protocol unconstitutional, Plaintiffs proffer the following 

evidence: (1) the opinion of Dr. David Waisel, an 

anesthesiologist at Harvard Law School, who, among other 

things, has reviewed eyewitness accounts and has concluded 
11 

that Alabama prisoner Eddie Powell and Georgia prisoner 

Roy Blankenship were inadequately anesthetized by 

pentobarbital and suffered greatly from their executions; 

(2) the fact that pentobarbital is not approved by the FDA for 

use as an anesthetic; and (3) the fact that pentobarbital is less 

lipid-soluble than sodium thiopental and therefore does not 

cross the blood-brain barrier as quickly. 

 Plaintiffs’ challenge to the DDOC’s substitution of 

pentobarbital for sodium thiopental is governed by the 

Supreme Court’s splintered decision in Baze. In Baze, the 

Supreme Court recognized “that subjecting individuals to a 

risk of future harm − not simply actually inflicting pain − can 

qualify as cruel and unusual punishment.” 553 U.S. at 49. 

However, to constitute a violation of the Eighth Amendment, 

“the conditions presenting the risk must be ‘sure or very 

likely to cause serious illness and needless suffering,’ and 

give rise to ‘sufficiently imminent dangers.’” Id. at 50 

(quoting Helling, 509 U.S. at 34-35). “Simply because an 

execution method may result in pain, either by accident or as 

an inescapable consequence of death, does not establish the 

sort of ‘objectively intolerable risk of harm’ that qualifies as 

cruel and unusual.” Id. Rather, a stay of execution may only 

be granted where “the condemned prisoner establishes that 

the State’s lethal injection protocol creates a demonstrated 

risk of severe pain . . . [and] that the risk is substantial when 

compared to the known and available alternatives.” Id. at 61. 

 The District Court, applying the Baze principles, 

concluded that Plaintiffs failed to demonstrate that the 

substitution of pentobarbital resulted in a constitutionally 

unacceptable risk of pain and suffering. It noted that 
12 

Delaware’s protocol calls for the administration of five grams 

of pentobarbital, which on its own is a lethal dose according 

to Dr. Dershwitz. Moreover, the Delaware protocol calls for 

a consciousness check after two minutes have lapsed, 

followed by the administration of a second dose of 

pentobarbital if the inmate is still conscious after two 

minutes. Based upon these factual findings and procedural 

safeguards, the District Court concluded that Plaintiffs had 

not presented “affirmative evidence . . . that the 

administration of pentobarbital as the first drug in Delaware’s 

three-drug protocol creates a demonstrated risk of severe 

pain, as required by the Supreme Court.” Jackson, 2011 WL 

3205453, at *3. In other words, the District Court concluded 

that Plaintiffs failed to demonstrate a likelihood of success on 

the merits and accordingly denied the stay. 

 After conducting our own searching review of the 

record, we conclude that the District Court did not abuse its 

discretion in denying Plaintiffs’ motion for a stay. The 

District Court’s factual findings are supported by the 

testimony of Defendants’ expert, Dr. Dershwitz. The purpose 

of the anesthetic in Delaware’s lethal injection protocol is to 

render the inmate unconscious before administration of the 
13 

 

second and third drugs, and there is no affirmative evidence 

that pentobarbital fails to do this.6

6

 Jackson urges us to consider Georgia’s execution of 

Roy Blankenship and Alabama’s execution of Eddie Powell 

as affirmative evidence that pentobarbital fails to properly 

anesthetize inmates. Dr. Waisel, who formulated his opinion 

based on witnesses’ accounts of the execution and some 

movement by the inmates during the initial three minutes at 

the start of the execution process, expressed concern that 

Blankenship and Powell were insufficiently anesthetized. 

Witnesses described these executions in contradictory ways. 

For example: 

To some, Blankenship was just looking up and 

watching what was occurring, looked at his left 

arm (which had an IV saline drip) and then 30 

to 60 seconds later looked toward his right arm 

where the administration of the pentobarbital 

was starting. To others, Blankenship appeared 

to grimace, or have a startled face, or jerked his 

arm twice, or had his mouth open and tried to 

mouth something. 

DeYoung, 2011 WL 2899704, at *5. Under Georgia’s 

protocol, the execution could not proceed until a 

consciousness check was performed. The District Court was 

not persuaded by this equivocal evidence of consciousness in 

the face of strict procedural safeguards, and we see no abuse 

of discretion in its conclusion. 
14 

 

 Indeed each court to consider this issue has uniformly 

held that the use of pentobarbital in lieu of sodium thiopental 

is constitutional.7

 See, e.g., DeYoung v. Owens, --- F.3d ---, 

2011 WL 2899704, at *3 (11th Cir. July 20, 2011); Powell v. 

Thomas, 641 F.3d 1255, 1257 (11th Cir. 2011) (per curiam); 

Pavatt v. Jones, 627 F.3d 1336 (10th Cir. 2010). For 

example, the United States Court of Appeals for the Tenth 

Circuit approved a protocol virtually identical to Delaware’s 

after allowing an Oklahoma death-sentenced inmate to 

conduct discovery, submit an expert report, and hold an 

evidentiary hearing. Pavatt, 627 F.3d at 1338-40. In Pavatt, 

the district court considered evidence that: (1) the first step of 

Oklahoma’s lethal injection protocol mandates the 

intravenous administration of five grams of pentobarbital; 

(2) the protocol requires the attending physician to ensure that 

the inmate is sufficiently unconscious prior to the 

administration of the paralytic agent; (3) the administration of 

a sufficient dose of pentobarbital will render an individual 

unconscious; (4) the defendant’s expert witness, Dr. 

Dershwitz, testified that the five-gram dosage will ensure that 

the inmate does not feel the effects of the paralytic agent; and 

(5) Dr. Dershwitz responded to Dr. Waisel’s testimony by 

pointing out that the use of pentobarbital to induce a 

barbiturate coma takes the patient to a state of 

unconsciousness beyond a normal clinical level of anesthesia. 

7

 While these cases are not controlling, it is noteworthy 

that the expert reports before the District Court here were 

written by the same experts utilized in the other courts of 

appeals cases. 
15 

 

Id. at 1339. At the conclusion of the hearing, the district 

court denied the motion for a stay, concluding that the 

prisoner failed to establish a substantial likelihood of success 

on the merits of his Eighth Amendment challenge. 

 On appeal, the Tenth Circuit held that the district court 

did not abuse its discretion in denying a stay. Specifically, 

the Tenth Circuit observed that Dr. Dershwitz had 

“substantially more clinical experience with the use of 

pentobarbital than Dr. Waisel.” Id. at 1340. The court also 

noted the importance of the consciousness check to its 

analysis, and held that the inmate “failed to establish a 

substantial likelihood of success on the merits of his Eighth 

Amendment challenge to the . . . revised protocol.” Id.; see 

also DeYoung, 2011 WL 2899704, at *6 (“DeYoung has 

wholly failed to show that pentobarbital, once fully 

administered and allowed to act, is ineffective as an 

anesthetic.”);8 Powell, 641 F.3d at 1257-58 (approving the 

substitution of pentobarbital for sodium thiopental). We 

agree with the Tenth Circuit’s approach and likewise 

conclude that Plaintiffs cannot establish that pentobarbital is 

8

 Plaintiffs’ assertion that the Eleventh Circuit’s denial 

of DeYoung’s claims was based entirely on Georgia’s twoyear statute of limitations is only partially correct. DeYoung, 

2011 WL 2899704, at *3. The court engaged in a thorough 

analysis of the merits of DeYoung’s claims and held in the 

alternative that “even if [DeYoung’s claims] were timely, 

they fail as a matter of law . . . because [he] has not 

established a substantial likelihood of success on the merits of 

his claims.” Id. 
16 

 

“sure or very likely to cause serious illness and needless 

suffering.” Baze, 553 U.S. at 50 (quoting Helling, 509 U.S. at 

34-35). 

 Finally, Plaintiffs argue that the District Court 

misapplied the legal rubric of Baze by failing to engage in an 

additional inquiry with respect to their execution challenge: a 

comparative risk analysis. According to Plaintiffs, the 

District Court was required to consider the comparative risks 

of “known and available alternatives” to Delaware’s 

pentobarbital three-drug protocol. Specifically, they argue 

the District Court should have considered the comparative 

risk of (1) a known anesthetic drug with a proven track 

record, for use as the first drug in the three-drug protocol, or 

(2) a single-drug execution protocol.9

Plaintiffs’ argument misstates the law. “[A] 

condemned prisoner cannot successfully challenge a State’s 

method of execution merely by showing a slightly or 

marginally safer alternative.” Baze, 553 U.S. at 51. Rather, 

9

 With respect to the second option, Dr. Dershwitz 

testified that a five-gram dose of a barbiturate such as sodium 

thiopental or pentobarbital would cause death in all people, 

and that death would occur as quickly as five minutes from 

the injection. Ohio has used a one-drug protocol since 

November 2009, and Washington adopted a one-drug 

protocol on March 2, 2010, but permits condemned inmates 

to select the method. See Death Penalty Information Ctr., 

Authorized Methods, 

http://www.deathpenaltyinfo.org/methods-execution. 
17 

an inmate must first show that a state’s current protocol 

creates a “demonstrated risk of severe pain.” Id. at 61. 

Moreover, Delaware is not “compelled to change its lethal 

injection protocol simply because another state has elected to 

do so.” Jackson I, 594 F.3d at 228. We recognize that the 

one-drug protocol is gaining support as an alternative to the 

three-drug lethal injection protocol, and we commend those 

states steadily striving to develop more humane alternatives 

to existing methods of execution. However, federal courts are 

not “boards of inquiry charged with determining ‘best 

practices’ for executions.” Baze, 553 U.S. at 51. 

“Pentobarbital is a barbiturate commonly used to 

euthanize terminally ill patients who seek death with dignity 

in states such as Oregon and Washington.” Beaty v. Brewer, 

--- F.3d. ---, 2011 WL 2040916, at *4 (9th Cir. 2011) 

(denying rehearing en banc because inmate had no likelihood 

of success on Eighth Amendment claim based on 

pentobarbital). It has been used successfully for executions in 

at least four other states, and there is no evidence that it fails 
18 

 

to render an inmate unconscious.10 Id. The District Court did 

not abuse its discretion in finding that the use of pentobarbital 

did not create “a demonstrated risk of severe pain, as required 

by the Supreme Court.” Jackson, 2011 WL 3205453, at *3. 

Thus, we affirm the District Court’s denial of the stay.11

B. 60(b)(6) and 60(d) 

10 Plaintiffs also assert that Defendants’ use of 

pentobarbital is violative of the Eighth Amendment because it 

evinces Defendants’ deliberate indifference to the potential 

pain and suffering he will undergo. We have previously held 

that Baze did not import the “deliberate indifference” 

standard to lethal injection challenges. See Jackson I, 594 

F.3d at 223 n.16. Instead, the Baze Court held that “there 

must be a ‘substantial risk of serious harm,’ an ‘objectively 

intolerable risk of harm’ that prevents prison officials from 

pleading that they were ‘subjectively blameless for purposes 

of the Eighth Amendment.’” Baze, 553 U.S. at 50 (quoting 

Farmer v. Brennan, 511 U.S. 825, 842, 846, & n.9 (1994)). 

Even if this language did graft the deliberate indifference 

standard onto lethal injection challenges, because we 

conclude that there was no “substantial risk of serious harm,” 

we also conclude that there could have been no deliberate 

indifference to that alleged risk. 

11 Because we conclude that Plaintiffs have not 

demonstrated a likelihood of success on the merits, we need 

not address the other factors required for a stay of an 

execution. 
19 

 

 Rule 60(b)(6) relief from judgment is only granted in 

extraordinary circumstances. See Martinez-McBean v. Govt. 

of Virgin Islands, 562 F.2d 908, 911-12 (3d Cir. 1977).12 It is 

available where the party seeking relief demonstrates that 

“extreme” and “unexpected” hardship will result absent such 

relief. United States v. Swift & Co., 286 U.S. 106, 119 

(1932). Similarly, Rule 60(d) permits a court to entertain an 

independent action to relieve a party from a judgment in order 

to “prevent a grave miscarriage of justice.” United States v. 

Beggerly, 524 U.S. 38, 47 (1998). 

Plaintiffs claim that the addition of pentobarbital as an 

available alternative to sodium thiopental is such a 

circumstance. In making this argument, Plaintiffs urge that 

the use of sodium thiopental was central to our decision in 

Jackson I, and that the substitution of an alternative 

barbiturate undermines the very foundation of our decision. 

In Jackson I, we held that Delaware’s three-drug 

protocol did not violate the Eighth Amendment, and stated 

that “the proper administration of sodium thiopental is an 

indispensable link in the lethal injection chain for Eighth 

Amendment purposes, as it ensures that an inmate will not 

suffer under the effects of the second two drugs.” 594 F.3d at 

225. However, the import of both Baze and Jackson I is that 

use of an effective anesthetic as the first drug in a three-drug 

12 Fed. R. Civ. P. 60(b)(6) provides, in pertinent part: 

“On motion and just terms, the court may relieve a party or its 

legal representative from a final judgment, order, or 

proceeding for . . . any . . . reason that justifies relief.” 
20 

 

protocol is required to satisfy the Eighth Amendment. In 

other words, “[t]he proper administration of the first drug 

[must] ensure[] that the prisoner does not experience any pain 

associated with the paralysis and cardiac arrest caused by the 

second and third drugs.” Baze, 553 U.S. at 44. 

We cannot say that the District Court’s finding that 

pentobarbital is an effective anesthetic for purposes of the 

three-drug lethal injection is clearly erroneous, particularly 

based on its demonstrated uses and the testimony of Dr. 

Dershwitz. Accordingly, we conclude that the District Court 

did not abuse its discretion in denying Plaintiffs’ motion to 

reopen, and we agree that “the substitution of pentobarbital 

for sodium thiopental does not constitute a factual change 

which undermines the foundation of [the] prior ruling,” 

necessitating independent action under either Rule 60(b)(6) or 

60(d). Jackson, 2011 WL 3205453, at *4.13

IV. 

13 We also conclude that the District Court did not 

abuse its discretion in declining to grant an evidentiary 

hearing on the matter. Having presided over the entire case 

and being intimately familiar with the record to date as well 

as the submissions regarding pentobarbital, the District Court 

was well-situated to rule on the motion to reopen and the 

motion for the stay, and additional discovery would not 

further illuminate the issue at bar. See United States v. Hines, 

628 F.3d 101, 104 (3d Cir. 2010) (setting forth the standard of 

review). 
21 

For all of these reasons, we conclude that Plaintiffs 

have not demonstrated a substantial likelihood of success on 

the merits of their claims, and that the District Court did not 

abuse its discretion in denying a stay of Jackson’s execution 

and Plaintiffs’ motion to reopen. Accordingly, we will 

affirm.