### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 16

- 20556

JEFFERY WOOD; ROLAND O RUIZ; ROBERT JENNI NGS; TERRY EDWARDS; and RAMIRO GONZALES,

Plaintiff s
- Appellant s

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

Bef ore 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. F ive 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. T hree of the five received stays from the Texas Court of Criminal Appeals on state habeas petitions presenting claims not at issue here

. The remaining t wo argue that Texas i s obliged by the Eighth A mendment ’s United States Court of Appeals Fifth Circuit 

### FILED September 12, 2016 Lyle W. Cayce Clerk Case: 16-20556 Document: 00513674220 Page: 1 Date Filed: 09/12/2016No 16

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2 prohibition on cruel and unusual punishment and the Fourteenth A mendment ’s guarantee of equal protection under the law to re
- test the execution dru g to assure it do es 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 civi l suit on August 12, 2016 in the United States District Court for the Southern District of Texas , alleging violations of the First, Ei ghth, and Fourteenth Amendments , and sought a preliminary injunction that would have granted the ultimate relief requested in the complaint

. The y 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 refus al to disclose eleme nts of its e xecu tion p rotocol violated Appellant s ’ 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
- test ing of the pento barbital 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.
Th e S tate moved to dismiss the complaint on August 15, 201 6, 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, t he district court Case: 16-20556 Document: 00513674220 Page: 2 Date Filed: 09/12/2016No 16

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3 denied the request for a preliminary injunction and dismiss ed the complaint for failure to s tate 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 barbitura te 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 t he State of Texas has done just that

— execution via a single

drug protocol utilizing a five

- gram dose of pentobarbital. Texas originally used pentobarbital purchased from a pharmaceutical firm in its executions.
However i n 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 thirty

two prisoners since 2 0 13 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 , T IME (August 7, 2013) , http://nation.time.com/2013/08/07/the

- hidden

- hand

- squeezing

- texas

supply

- of

- execution

- drugs/.
3 In an effort to protect its suppliers, Texas does not disclose its sources of pe ntobarbital

. Case: 16-20556 Document: 00513674220 Page: 3 Date Filed: 09/12/2016No 16

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4 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 righ t. 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) whe ther 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 t he Eighth A mendment does not req uire that

4 Hill v. McDonough , 547 U.S. 573, 584 (2006).
5 Nken v. Holder , 556 U.S. 418, 42 6 (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. G ross , 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 three

drug lethal injection protocol). While Glossip and Baze both dealt with three

- drug execution protocol s, this Court has held that “‘a one drug protocol [is] also acceptable under the flexible Baze standard . . . .” Sepulvado , 729 F.3d at 4 17 (quoting Thorson v. Epps [Thorson II] , 701 F.3d 444, 447 n. 3 (5th Cir. 2012)). Case: 16-20556 Document: 00513674220 Page: 4 Date Filed: 09/12/2016No 16

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5 execution be painless, 8 it does prohibit “serious illness and needless suffering” where there exists a n 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 , “ t here must be a substantial risk of serious harm, an objectively intolerable risk of harm that prevents pris on 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 ro te : “ [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 diffe rence in treatment between [classes] rationally furthe rs 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)). Case: 16-20556 Document: 00513674220 Page: 5 Date Filed: 09/12/2016No 16

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6 challenge if there is any reasonably conceivable state of facts that could provide a rationa l 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 s o
- called “class of on e

. ” 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 w as 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 p rotection claim; other claim s 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 42 6. Case: 16-20556 Document: 00513674220 Page: 6 Date Filed: 09/12/2016No 16

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7 their cl aim 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 rel ies on the contention that Texas’s decision to re
- test the pentobarbital in the Whitaker 20 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 believ ed necessary for the use of compounded pentobarbital

. While a ll 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 create d a right
to re

- testing for all prisoners, a novel and flawed invocation of equal protection doctrine.
T he 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

ser ious 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 pa in.” 24 These are substantial hurdles, necessarily

so.

20 Whitaker v. Livingston , Civil Action H

- 13

- 2901, 2016 WL 319 9532 (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 ). Case: 16-20556 Document: 00513674220 Page: 7 Date Filed: 09/12/2016No 16

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8 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 tha t 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 single

drug 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 incident 25 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, r elying on conject ure 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 wi ll not suffer severe pain. . .

. ” But this assertion fail s 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 , t he 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

25 Whitaker , 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. Case: 16-20556 Document: 00513674220 Page: 8 Date Filed: 09/12/2016No 16

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9 their submission with equal protection language, w hile creative, brings an argument that is ultimately no more than word play.
ii

. The prisoners do not all ege 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 c lass, 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 easeme nt from the plaintiff where it required only a 15

- foot easement from other similarly situated property owners. 28 H ere, 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, i n 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 gov ernment 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, holdin g that “ratifying a class

- of

- one

27 Appellants contend in their motion that they a re not bringing a “class of one” claim. However Appellants assert that, even under ration al basis, their claim succeeds. For this reason, and because it received considerable attention in the district court, we examine Appellants’ claim for likelihood of s uccess 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. Case: 16-20556 Document: 00513674220 Page: 9 Date Filed: 09/12/2016No 16

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10 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

conseq uence of the discretion granted , ” and allowing equal protecti o n claims on such grounds “would be incompatible with the discret ion 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 th e 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
li tigant; 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: procedural ly 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. Case: 16-20556 Document: 00513674220 Page: 10 Date Filed: 09/12/2016No 16

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11 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 motio n for a preliminary injunction and then their request for a stay . The district court dispatched them as “jun k science.” That aside, the affidavits do not themselves move beyond speculation and do not confront the success of pentobarbital as the sole

- drug u sed to execute. As we earlier explained, t he 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 p rotection 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

. A ny 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 execution s , but t hey do
not demonstrate that they are nigh sure to suffer unnecessary pain

. Texas , on the other hand, proffer s that compou nded pentobarbital has been use d 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. I qbal , 556 U.S. 662, 677

– 84 (2009); Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 5 70 (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

. Case: 16-20556 Document: 00513674220 Page: 11 Date Filed: 09/12/2016No 16

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12 C.
Texas has a strong interest in enforcing the judgments o f its courts in criminal cases, but t he 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 paus e 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 taxe s the Eighth Amendment’s prohibition of undue suffering than does the elusive search for minimum pain for th os e brief moments of passage across the river. Appellants do not contest their convictions or their sentences. Instead they argue that the Eighth an d Fourteenth Amendments require the State of
Texas to re

- test the pentobarbital that will be used to execute them. The district court determined that Appellant s ’ 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. Case: 16-20556 Document: 00513674220 Page: 12 Date Filed: 09/12/2016