IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-20556

JEFFERY WOOD; ROLANDO RUIZ; ROBERT JENNINGS; TERRY 

EDWARDS; and RAMIRO GONZALES, 

 Plaintiffs - Appellants

v.

BRYAN COLLIER, Executive Director, Texas Department of Criminal 

Justice; LORIE DAVIS, Director, Correctional Institutions Division, Texas

Department of Criminal Justice; JAMES JONES, Senior Warden; and 

UNKNOWN EXECUTIONERS, 

 Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Texas

Before HIGGINBOTHAM, DENNIS, and ELROD, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

In 2012, Texas adopted its current execution protocol: a single, five-gram

dose of pentobarbital to induce death. Five men convicted of murder and 

sentenced to die by lethal injection ask this Court to stay their impending 

executions based on an earlier and separate case between Texas and two death 

row prisoners. Three of the five received stays from the Texas Court of 

Criminal Appeals on state habeas petitions presenting claims not at issue here.

The remaining two argue that Texas is obliged by the Eighth Amendment’s

United States Court of Appeals

Fifth Circuit

FILED

September 12, 2016

Lyle W. Cayce

Clerk

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prohibition on cruel and unusual punishment and the Fourteenth 

Amendment’s guarantee of equal protection under the law to re-test the 

execution drug to assure it does not present a high risk of unnecessary pain. 

We are not persuaded these prisoners have made the showing required for a 

stay pending appeal and DENY their motion for a stay of execution.

I.

A.

Appellants filed this 42 U.S.C. § 1983 civil suit on August 12, 2016 in the 

United States District Court for the Southern District of Texas, alleging 

violations of the First, Eighth, and Fourteenth Amendments, and sought a 

preliminary injunction that would have granted the ultimate relief requested

in the complaint. They asserted that: (1) Texas’s use of compounded 

pentobarbital absent re-testing shortly before execution violates the Eighth 

and Fourteenth Amendments by creating a substantial risk of severe pain; (2) 

Texas’s refusal to disclose elements of its execution protocol violated 

Appellants’ First, Eighth, and Fourteenth Amendment rights to be free from 

cruel and unusual punishment, due process, notice, an opportunity to be heard, 

and access to the courts; (3) voluntary re-testing of the pentobarbital that will 

be used to execute plaintiffs in another suit created a constitutional right to

such re-testing for all prisoners; and (4) the lack of a requirement that Texas 

notify the Appellants of any changes to the drugs or to the lethal injection 

protocol that will be used to carry out their sentences impairs protection of

their right to be free from cruel and unusual punishment and to due process 

under the Eighth and Fourteenth amendments.

The State moved to dismiss the complaint on August 15, 2016, arguing 

that all except the equal protection claim were time-barred and all claims 

failed as a matter of law. At a hearing the following day, the district court 

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denied the request for a preliminary injunction and dismissed the complaint

for failure to state a claim. The next day the district court denied a stay 

pending appeal.

B.

The prisoners’ suit now before us presents as the latest in a series of 

cases targeting capital punishment. In the recent case before this court of 

Jordan v. Fisher, a group of Mississippi death row inmates challenged that 

state’s use of pentobarbital as the first drug in a so-called “three-drug 

cocktail.”1 There, the Jordan prisoners complained to the district court that 

pentobarbital was not a sufficiently fast acting barbiturate to guarantee 

anesthetization prior to the introduction of vecuronium bromide and 

potassium chloride, urging as the alternative a single, lethal dose of a 

barbiturate. 

Since 2012 the State of Texas has done just that—execution via a singledrug protocol utilizing a five-gram dose of pentobarbital. Texas originally used 

pentobarbital purchased from a pharmaceutical firm in its executions. 

However in 2011, Lundbeck, the Danish pharmaceutical firm that produces 

manufactured pentobarbital, refused to supply the drug to states that execute

by lethal injection.2 In response, in September 2013, Texas began purchasing 

pentobarbital compounded by pharmacies.3 Texas alleges, and Appellants do 

not dispute, that Texas has used compounded pentobarbital to execute thirtytwo prisoners since 2013 without issue. Even so, Appellants’ primary 

contention is that Texas’s use of compounded pentobarbital creates significant 

 1 823 F.3d 805 (5th Cir. 2016).

2 Josh Sanburn, The Hidden Hand Squeezing Texas’ Supply of Execution Drugs, TIME

(August 7, 2013), http://nation.time.com/2013/08/07/the-hidden-hand-squeezing-texassupply-of-execution-drugs/. 

3 In an effort to protect its suppliers, Texas does not disclose its sources of 

pentobarbital.

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risks of unnecessary pain, and thus the state should be compelled to re-test the 

drug shortly before execution.

II.

A.

Appellants request a stay of execution pending review in this Court of 

the district court’s dismissal of their suit and denial of a stay pending appeal. 

A stay of execution is an equitable remedy that is not available as a matter of 

right.4 In determining whether to grant a stay pending appeal, this Court 

weighs: 

(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 a stay 

will substantially injure the other parties interested in the 

proceeding; and (4) where the public interest lies.5

B.

“[B]ecause it is settled that capital punishment is constitutional, ‘[i]t 

necessarily follows that there must be a [constitutional] means of carrying it 

out.’”6 The Court has repeatedly held that lethal injection is a permissible 

method of execution.7 While the Eighth Amendment does not require that 

 4 Hill v. McDonough, 547 U.S. 573, 584 (2006).

5 Nken v. Holder, 556 U.S. 418, 426 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 

776 (1987)). See also Battaglia v. Stephens, 824 F.3d 470, 475 (5th Cir. 2016). In assessing 

these factors, while not dispositive, “[i]n a capital case, the possibility of irreparable injury 

weighs heavily in the movant’s favor.” O’Bryan v. Estelle, 691 F.2d 706, 708 (5th Cir. 1982).

6 Glossip v. Gross, 135 S. Ct. 2726, 2732–33 (quoting Baze v. Rees, 553 U.S. 35, 47

(2008) (plurality)). See also Sepulvado v. Jindal, 729 F.3d 413, 417 (5th Cir. 2013). 7 See Glossip, 135 S. Ct. at 2739–40 (approving of Oklahoma’s three-drug lethal 

injection protocol); see also Baze, 553 U.S. at 54–56 (plurality) (approving of Kentucky’s threedrug lethal injection protocol). While Glossip and Baze both dealt with three-drug execution 

protocols, this Court has held that “‘a one drug protocol [is] also acceptable under the flexible 

Baze standard . . . .” Sepulvado, 729 F.3d at 417 (quoting Thorson v. Epps [Thorson II], 701 

F.3d 444, 447 n.3 (5th Cir. 2012)).

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execution be painless,8 it does prohibit “serious illness and needless suffering” 

where there exists an alternative that is “feasible, readily implemented, and 

in fact significantly reduce[s] a substantial risk of severe pain.”9 The 

Amendment secures a right to be free from methods of execution that create “a 

risk that is sure or very likely to cause serious illness and needless suffering,

and give rise to sufficiently imminent dangers.”10 Stated differently, “there 

must be a substantial risk of serious harm, an objectively intolerable risk of 

harm that prevents prison officials from pleading they were subjectively 

blameless for purposes of the Eighth Amendment.”11

C.

The Equal Protection Clause of the Fourteenth Amendment is 

“essentially a direction that all persons similarly situated should be treated 

alike.”12 Its basics are rote: “[e]qual protection does not require that all persons 

be dealt with identically, but it does require that a distinction made have some 

relevance to the purpose for which the classification is made.”13 In assessing 

an equal protection claim, “[s]trict scrutiny is appropriate only where a 

government classification implicates a suspect class or a fundamental right.”14

“In cases that do not implicate suspect classes or fundamental rights, ‘[t]he 

appropriate standard of review is whether the difference in treatment between 

[classes] rationally furthers a legitimate state interest.’”15 “Under rational 

basis review, differential treatment must be upheld against equal protection 

 8 Glossip, 135 S. Ct. at 2733.

9 Id. at 2737 (quoting Baze, 553 U.S. at 50, 52).

10 Glossip, 135 S. Ct. at 2737 (citations omitted) (internal quotation marks omitted).

11 Id. (quoting Baze, 553 U.S. at 50) (internal quotation marks omitted).

12 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).

13 Baxstrom v. Herald, 383 U.S. 107, 111 (1966).

14 Gallegos-Hernandez v. United States, 688 F.3d 190, 195 (5th Cir. 2012) (quoting 

Rublee v. Fleming, 160 F.3d 213, 217 (5th Cir. 1998)).

15 Harris v. Hahn, No. 15-20105, 2016 WL 3457616, at *4 (5th Cir. June 23, 2016) 

(alterations in original) (quoting Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)).

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challenge if there is any reasonably conceivable state of facts that could provide 

a rational basis for the classification.”16

An equal protection claim that is premised on differential treatment but 

not based on membership in a suspect class or the infringement of a 

fundamental right may be cognizable as a so-called “class of one.”17 “We review 

such claims under a two-prong test: the plaintiff must show that (1) he or she 

was intentionally treated differently from others similarly situated and (2) 

there was no rational basis for the difference in treatment.”18

III.

Each of these men was sentenced to death over a decade ago—two more 

than twenty years ago—and each has known he will be executed using 

compounded pentobarbital since at least 2013. In moving for a stay, the 

prisoners assert only their equal protection claim; other claims in the 

complaint are not before us.

A.

The first requirement for a stay of execution is “a strong showing that 

[the movant] is likely to succeed on the merits.”19 We examine the alleged

errors of the district court for a substantial likelihood of success before this 

Court.

i.

The prisoners first argue that the Eighth Amendment right to be free 

from cruel and unusual punishment is burdened by Texas’s denial of re-testing 

shortly before execution. They urge that the district court erred by evaluating 

 16 Hines v. Aldridge, 783 F.3d 197, 202–03 (5th Cir. 2015) (internal quotation marks 

omitted) (quoting Madriz-Alvarado v. Ashcroft, 383 F.3d 321, 332 (5th Cir. 2004)).

17 Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).

18 Lindquist v. City of Pasadena, 669 F.3d 225, 233 (2012) (citing Olech, 528 U.S. at 

564).

19 Nken, 556 U.S. at 426.

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their claim under rational basis review; that the correct standard of review is 

strict scrutiny, with a shift of the burden to the State to demonstrate that its 

classification was narrowly tailored to achieve a compelling government 

interest.

This argument relies on the contention that Texas’s decision to re-test 

the pentobarbital in the Whitaker20 case and not here denies them equal 

protection. In Whitaker, the plaintiffs, as here, alleged that Texas does not 

provide all of the procedural safeguards they believed necessary for the use of 

compounded pentobarbital. While all agreed that Texas’s decision to re-test 

mooted the case,21 the district court dismissed the suit for other reasons.22 The 

prisoners’ primary contention now is that re-testing in Whitaker created a right 

to re-testing for all prisoners, a novel and flawed invocation of equal protection 

doctrine.

The Eighth Amendment guarantees a right to be free from methods of 

execution that present a substantial risk of unnecessary pain. That right is 

enjoyed by all persons. It rests on text, not on episodic differential treatment.

In Glossip, the Court held that a method of execution does not violate the 

Eighth Amendment unless it “presents a risk that is sure or very likely to cause 

serious illness and needless suffering, and give rise to sufficiently imminent

dangers.”23 The Court held that, to qualify for a stay of execution, plaintiffs 

must demonstrate “that the State’s lethal injection protocol creates a 

demonstrated risk of severe pain.”24 These are substantial hurdles, necessarily 

so.

 20 Whitaker v. Livingston, Civil Action H-13-2901, 2016 WL 3199532 (S.D. Tex. June 

6, 2016), appeal filed. 21 Id. at *4. 22 Id. at *9.

23 Glossip, 135 S. Ct. at 2737 (citations omitted) (internal quotation marks omitted).

24 Id. (citing Baze, 553 U.S. at 61).

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Appellants assert that there is a risk that the drug might fail, and thus 

re-testing for one and not another impinges upon the Eighth Amendment. That 

said, under Glossip, the prisoners must establish that not re-testing the drug 

presents a sure or very likely risk of pain.

The reality is that pentobarbital, when used as the sole drug in a singledrug protocol, has realized no such risk. The prisoners cannot avoid the facts 

that: (1) the district court found that at least thirty-two executions in Texas

have utilized the single-drug compounded pentobarbital protocol without 

incident25 and, (2) when pentobarbital is the sole drug used to execute, 

unconsciousness necessarily precedes death,26 effectively obviating the 

problem of conscious pain and suffering that was oft cited as a risk of the 

“three-drug cocktail.” Rather, relying on conjecture regarding the drugs’ 

beyond-use dates and compounding, the prisoners urge only that “[t]esting the

compounded pentobarbital shortly before its use ensures the prisoner will not 

suffer severe pain. . . .” But this assertion fails to reach the Eighth Amendment 

bar on unnecessarily severe pain that is sure, very likely, and imminent. The 

effort to draw upon equal protection works no change in the reach of the Eighth 

Amendment.

However one kneads the protean language of equal protection 

jurisprudence, the inescapable reality is that these prisoners have not 

demonstrated that a failure to retest brings the risk of unnecessary pain 

forbidden by the Eighth Amendment. Attempting to bridge this shortfall in 

 25Whitaker, 2016 WL 3199532, at *1. The widely represented figure is 80 plus 

executions nationwide using pentobarbital as the sole drug.

26 We are pointed to no contrary views. The prisoners aver that, because the drug is 

produced by compounding pharmacies, it could be contaminated or perhaps be some drug 

other than pentobarbital. This argument does not close the distance between a mere 

possibility and a sure or very likely risk that contamination will occur and will bring extreme 

pain. 

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their submission with equal protection language, while creative, brings an 

argument that is ultimately no more than word play.

ii.

The prisoners do not allege membership in a protected class, and despite 

efforts to reframe the issues,27 their claims present at bar as a futile effort to 

assert a “class of one.”

Typically, a class of one involves a discrete group of people, who do not 

themselves qualify as a suspect class, alleging the government has singled 

them out for differential treatment absent a rational reason. Olech involved 

just those facts, with a municipality demanding a 33-foot easement from the 

plaintiff where it required only a 15-foot easement from other similarly 

situated property owners.28 Here, the prisoners allege that the Whitaker

plaintiffs were singled out to receive a benefit denied to them, turning the 

Olech analysis on its head.

That problem aside, in Engquist, the Court discussed “forms of state 

action . . . which by their nature involve discretionary decisionmaking based 

on a vast array of subjective, individualized assessments.”29 Engquist dealt 

with a government employee who brought a class of one claim alleging that her 

termination violated the Equal Protection Clause.30 At trial, the jury returned 

a verdict for the plaintiff.31 The Ninth Circuit reversed, and the Supreme Court 

affirmed the Ninth Circuit’s reversal, holding that “ratifying a class-of-one 

 27 Appellants contend in their motion that they are not bringing a “class of one” claim.

However Appellants assert that, even under rational basis, their claim succeeds. For this 

reason, and because it received considerable attention in the district court, we examine 

Appellants’ claim for likelihood of success under the “class of one” framework.

28 Olech, 528 U.S. at 565.

29 Engquist v. Oregon Dept. of Agr., 553 U.S. 591, 603 (2008).

30 Id. at 595.

31 Id. at 596.

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theory of equal protection in the context of public employment would 

impermissibly constitutionalize the employee grievance.’”32

The Court recognized that, in the core areas of equal protection, 

governmental discretion could be used as a cover for impermissible 

discrimination.33 But here, “treating like individuals differently is an accepted 

consequence of the discretion granted,” and allowing equal protection claims 

on such grounds “would be incompatible with the discretion inherent in the 

challenged action.”34 The strategic decision of the State of Texas to re-test in 

one case, in the context of an ever-changing array of suits attacking its use of 

capital punishment from all angles, is within the discretion inherent in the 

challenge made here.

The district court held that the Engquist exception to class of one claims 

controls regarding decisions made, here and in Whitaker, by Texas as a 

litigant; that, as a matter of law, Appellants’ equal protection claim fails as a 

class of one claim. We agree.

iii.

The prisoners’ final contention in support of a stay is that the district 

court erred in two ways when granting the State’s motion to dismiss:

procedurally by applying the wrong pleading standard and substantively by 

dismissing a complaint that “adequately plead an equal protection violation.”

They argue that the district court “repeatedly challenged Appellants’ 

allegations and factual support” instead of applying the correct standard, 

 32 Id. at 609 (quoting Connick v. Myers, 461 U.S. 138, 154 (1983)).

33 “Of course, an allegation that speeding tickets are given out on the basis of race or 

sex would state an equal protection claim, because such discriminatory classifications 

implicate basic equal protection concerns. But allowing an equal protection claim on the 

ground that a ticket was given to one person and not others, even if for no discernible or 

articulable reason, would be incompatible with the discretion inherent in the challenged 

action.” Engquist, 553 U.S. at 604. 34 Id. at 604.

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under Twombly and Iqbal, which accepts factual allegations in the complaint 

as true and evaluates the complaint for plausibility.35 The prisoners relied 

upon two affidavits of proffered expert opinion in support of their motion for a 

preliminary injunction and then their request for a stay. The district court 

dispatched them as “junk science.” That aside, the affidavits do not themselves 

move beyond speculation and do not confront the success of pentobarbital as 

the sole-drug used to execute.

As we earlier explained, the district court found that counts one, two, 

and four in the complaint are time barred, and that holding is not challenged. 

Count three, the equal protection claim, fails as a matter of law for the reasons 

we have stated here—essentially the same reasons offered by the district court.

Accepting the facts as pled, all claims still fail. Any error committed is 

harmless.

B.

Again, of course, “[i]n a capital case, the possibility of irreparable injury 

weighs heavily in the movant’s favor.”36 The prisoners argue the injury they 

will face is the possibility of severe pain during their executions, but they do 

not demonstrate that they are nigh sure to suffer unnecessary pain. Texas, on 

the other hand, proffers that compounded pentobarbital has been used in 

thirty-two executions in the state without issue.37 We cannot say that 

Appellants have demonstrated that they are likely to suffer an irreparable 

injury absent a stay.

 35 See Ashcroft v. Iqbal, 556 U.S. 662, 677–84 (2009); Bell Atlantic Corp. v. Twombly, 

550 U.S. 544, 570 (2007); see also Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009). 36 O’Bryan, 691 F.2d at 708.

37 Whitaker, 2016 WL 3199532, at *1.

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C.

Texas has a strong interest in enforcing the judgments of its courts in 

criminal cases, but the public interest writ large takes no sides here. The 

finality of a death sentence and, with it, the inherent risk of uncertainty 

demand diligent effort by all. These prisoners have enjoyed that effort—with 

two of them residing on death row in excess of twenty years. That reality may 

give pause to the entire enterprise, but does not bespeak neglect of bench and 

bar. To these eyes, a system that leaves persons on death row for over two 

decades more surely taxes the Eighth Amendment’s prohibition of undue 

suffering than does the elusive search for minimum pain for those brief 

moments of passage across the river.

Appellants do not contest their convictions or their sentences. Instead 

they argue that the Eighth and Fourteenth Amendments require the State of 

Texas to re-test the pentobarbital that will be used to execute them. The 

district court determined that Appellants’ claims are meritless. Appellants 

have not made the requisite showing that would justify a stay pending appeal.

Appellants’ motion for a stay is DENIED.

Concurrence:

JAMES L. DENNIS, Circuit Judge, concurs in denying the motion for a stay.

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