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. Robinson2 ______ 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 Appellees3 ______

OPINION OF THE COURT

______

FISHER, Circuit Judge

. A class of inmates sentenced to death by the State of Delaware and named plaintif f 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 Di strict Court did not abuse its discretion, and, accord ingly, 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 in formation 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 to4 cause death and until such person sentenced to death is dead, and such execution procedure shall be determined a nd supervised by the Commissioner of the Department of Correction.

DEL. CODE ANN. tit. 11, § 4209(f) (2006 Supp.). The statute does not mandate the us e of any particular drug or series of drugs.

On August 29, 2008, the Delaware Department of Correction (“DDOC”) institute d 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 in mate 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 indu ces 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 consciousne ss check requires the warden to call the inmate’s name out loud to observe any reaction from the inmate. At the same ti me, a member of the IV team assesses the inmate’s consciou sness by touching the inmate, shaking his shoulder, and brushi ng 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 pr otocol requires the execution team to repeat the administra tion of the first chemical and subsequent consciousness checks until the inmate is deemed unconscious.

Delaware amended its protoc ol on May 5, 2011. The amended protocol, which is be fore 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, pentobarbi tal, 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 action 2 alleging that the State of Delaware’s

2 42 U.S.C. § 1983 provid es, in pertinent part:

Every person who, under color of any statute, ordinance, regulation, cu stom, 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, sh all be liable to the party injured[.]6 then-existing method of lethal injection created an unconstitutional risk of pain an d suffering, cognizable under the Eighth and Fourteenth Amen dments 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 litigati on in the District Court, Defendants amended their lethal injection protocol twice. Ultimately, the 2008 Protocol wa s enacted in an effort to incorporate the safeguards desc ribed by the Supreme Court in Baze v. Rees , 553 U.S. 35 (2008), wh ich upheld Kentucky’s lethal injection protocol agains t 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 execu tions but held that Plaintiffs

3 Jackson named the follo wing defendants in his complaint: Stanley W. Taylo r, 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, “Defenda nts”). 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 De fendants 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 C onstitution, 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 s odium thiopental is an indispensable link in the leth al injection chain for Eighth Amendment purposes, as it ensu res 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 Ja ckson’s execution with the District Court. Plai ntiffs argued that the substitution8 of pentobarbital for sodium thiope ntal 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 inde pendent action to prevent a miscarriage of justice under Ru le 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 anes thesiologist with a Ph.D. in pharmacology. The District Cour t denied both of Plaintiffs’ motions. It found that a st ay was not warranted because Plaintiffs had “not carried their burden to prove that they are likely to succeed on the mer its 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 st ay on July 28, 2011, and affirmed the judgment of the Dist rict Court with an opinion to follow. 4 Following our decision, the Supreme Court denied

4 The panel issued its or der around 7:00 p.m. on July 28, 2011, approximately five hours before the scheduled time of execution.9 certiorari, and Robert Jackso n was executed just after midnight on July 29, 2011, by lethal injection. 5

II.

The District Court had ju risdiction under 28 U.S.C. § 1331. We have jurisdic tion 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 relie f 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 seri ous error of law or a mistake in considering the facts. Bradley v. Pitts burgh 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 ri ght, 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 impact s 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 requ ires consideration of four factors:

(1) whether the stay applicant has made a strong showing that he is li kely to succeed on the merits; (2) whether th e 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 cha llenge the manner in which the State plans to execute them must satisfy all of the requirements for a stay, includin g a showing of a significant possibility of success on the merits.” Hill , 547 U.S. at 584.

Plaintiffs argue that be cause pentobarbital is not approved by the Food and Drug Administration (“FDA”) for use as an anesthetic, its pe rformance in the three-drug protocol, namely its manner and timing of inducing unconsciousness, is unknown and unpredictable and therefore violative of the Eighth Amendm ent. In support of their argument that pentobarbital re nders the lethal injection protocol unconstitutional, Plai ntiffs proffer the following evidence: (1) th e opinion of Dr. David Waisel, an anesthesiologist at Harvard Law School, who, among other things, has reviewed eyewitne ss accounts and has concluded11 that Alabama prisoner Eddie Powell and Georgia prisoner Roy Blankenship were inade quately 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 punis hment.” 553 U.S. at 49. However, to constitute a violati on of the Eighth Amendment, “the conditions presentin g 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 condem ned prisoner establishes that the State’s lethal injection pr otocol creates a demonstrated risk of severe pain . . . [and] th at 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 fa iled to demonstrate that the substitution of pentobarbital resulted in a constitutionally unacceptable risk of pain and suffering. It noted that12 Delaware’s protocol calls for th e 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 administra tion of a second dose of pentobarbital if the inmate is still conscious after two minutes. Based upon these fa ctual 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 de monstrated 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 accordin gly denied the stay.

After conducting our own searching review of the record, we conclude that the Di strict Court did not abuse its discretion in denying Plaintiffs’ motion for a stay. The District Court’s factual fi ndings are supported by the testimony of Defendants’ expe rt, Dr. Dershwitz. The purpose of the anesthetic in Delaware’s lethal injection protocol is to render the inmate unconscious be fore administration of the13 second and third drugs, and ther e is no affirmative evidence that pentobarbital fails to do this. 6

6 Jackson urges us to consid er Georgia’s execution of Roy Blankenship and Alabama’s execution of Eddie Powell as affirmative eviden ce that pentobarbital fails to properly anesthetize inmates. Dr. Wais el, 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 proc ess, expressed concern that Blankenship and Powell were in sufficiently 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 28997 04, at *5. Under Georgia’s protocol, the execution could not proceed until a consciousness check was perform ed. 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 pentobarbita l 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 (11t h Cir. 2011) (per curiam); Pavatt v. Jones , 627 F.3d 1336 (10th Cir. 2010). For example, the United States C ourt 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 e xpert report, and hold an evidentiary hearing. Pavatt , 627 F.3d at 1338-40. In Pavatt

, the district court considered eviden ce that: (1) the first step of Oklahoma’s lethal injectio n protocol mandates the intravenous administration of five grams of pentobarbital; (2) the protocol requires the atte nding 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 pentobarb ital will render an individual unconscious; (4) the defendant’s expert witness, Dr. Dershwitz, testified that the fi ve-gram dosage will ensure that the inmate does not feel the effe cts 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 th e patient to a state of unconsciousness beyond a normal clin ical level of anesthesia.

7 While these cases are not co ntrolling, 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 s ubstantial 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 in mate “failed to establish a substantial likelihood of succe ss 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 fo r sodium thiopental). We agree with the Tenth Circui t’s approach and likewise conclude that Plaintiffs cannot establish that pentobarbital is

8 Plaintiffs’ assertion that th e Eleventh Circuit’s denial of DeYoung’s claims was ba sed entirely on Georgia’s twoyear statute of limitations is only partially correct. DeYoung

, 2011 WL 2899704, at *3. Th e court engaged in a thorough analysis of the merits of DeYoung’s claims and held in the alternative that “even if [DeY oung’s claims] were timely, they fail as a matter of law . . . because [he] has not established a substantial likelihoo d 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 co mparative 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 succ essfully 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 woul d 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 Washi ngton adopted a one-drug protocol on March 2, 2010, bu t permits condemned inmates to select the method. See Death Penalty In formation Ctr., Authorized Methods, http://www.deathpenaltyinfo.org/methods-execution.17 an inmate must first show th at a state’s current protocol creates a “demonstrated ri sk of severe pain.” Id . at 61. Moreover, Delaware is not “com pelled to change its lethal injection protocol simply becaus e 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 deve lop 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 barbitu rate commonly used to euthanize terminally ill patients who seek death with dignity in states such as Oreg on and Washington.” Beaty v. Brewer

, --- F.3d. ---, 2011 WL 2040916, at *4 (9th Cir. 2011) (denying rehearing en banc be cause inmate had no likelihood of success on Eighth Amendment claim based on pentobarbital). It has been used successfully fo r executions in at least four other states, and there is no evidence that it fails18 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 ri sk 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 ‘subj ectively 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 gr aft the deliberate indifference standard onto lethal injec tion challenges, because we conclude that there was no “subst antial risk of serious harm,” we also conclude that there could have been no deliberate indifference to that alleged risk.

11 Because we conclude th at 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 seek ing relief demonstrates that “extreme” and “unexpected” hardsh ip will result absent such relief. United States v. Swift & Co. , 286 U.S. 106, 119 (1932). Similarly, Rule 60(d) pe rmits 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 ad dition of pentobarbital as an available alternative to sodi um thiopental is such a circumstance. In making this argument, Plaintiffs urge that the use of sodium thiopental wa s central to our decision in Jackson I

, and that the substituti on of an alternative barbiturate undermines the very foundation of our decision.

In Jackson I , we held that De laware’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 leth al injection chain for Eighth Amendment purposes, as it ensu res that an inmate will not suffer under the effects of the se cond 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 c ourt 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 experi ence any pain associated with the pa ralysis 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 an esthetic for purposes of the three-drug lethal injection is clearly erroneous, particularly based on its demonstrated us es and the testimony of Dr. Dershwitz. Accordingly, we conc lude that the District Court did not abuse its discretion in denying Plaintiffs’ motion to reopen, and we agree that “t he substitution of pentobarbital for sodium thiopental does not constitute a factual change which undermines th e foundation of [the] prior ruling,” necessitating independent action u nder 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 declin ing 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 pent obarbital, 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 substa ntial likelihood of success on the merits of their claims, and that the District Court did not abuse its discretion in denying a stay of Jack son’s execution and Plaintiffs’ motion to reop en. Accordingly, we will affirm.