REVISED SEPTEMBER 9, 2014

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-70028

WILLIE TYRON TROTTIE,

Plaintiff–Appellant,

v.

BRAD LIVINGSTON, ET AL.,

Defendants–Appellees.

Appeal from the United States District Court

for the Southern District of Texas

Before HIGGINBOTHAM, DAVIS and ELROD, Circuit Judges.

PER CURIAM:

Willie Tyrone Trottie is scheduled to be executed in Texas on Wednesday, 

September 10, 2014. Trottie filed a § 1983 law suit alleging violations of the 

Eighth and Fourteenth Amendments based on the method of his execution. 

The district court denied Trottie’s motion for a preliminary injunction or 

temporary restraining order. We AFFIRM. 

I.

Trottie was convicted and sentenced to death for the murders of Barbara 

and Titus Canada while in the course of committing and attempting to commit 

burglary of a habitation. The Court of Criminal Appeals affirmed Trottie’s 

conviction and sentence. Trottie v. State, No. 71,793 (Tex. Crim. App. 1995). 

United States Court of Appeals

Fifth Circuit

FILED

September 9, 2014

Lyle W. Cayce

Clerk

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No. 14-70028

Trottie filed a state application for writ of habeas corpus on August 18, 1997, 

which the Court of Criminal Appeals denied. Ex parte Trottie, No. 70,302-01 

(Tex. Crim. App. Feb. 11, 2009). 

Trottie then filed a federal habeas petition. Trottie v. Stephens, No. 4:09-

cv-435 (S.D. Tex. 2011). The district court denied Trottie’s petition and denied 

him a certificate of appealability (“COA”). This court also denied an 

application for a COA. Trottie v. Stephens, 720 F.3d 231 (5th Cir. 2013), cert. 

denied, 134 S. Ct. 1540 (March 24, 2014). Trottie then filed a second state 

habeas application in the Court of Criminal Appeals, which was dismissed as 

an abuse of the writ. Ex parte Trottie, No. 70,302-02 (Tex. Crim. App. Sept. 4, 

2014).

On September 4, 2014, Trottie filed a § 1983 complaint in the United 

States District Court for the Southern District of Texas. He sought a 

temporary or preliminary injunction to stay his execution, arguing that the 

State has been secretive concerning the origins of the drug to be used in his 

execution and any testing of that drug. Trottie argues that the secrecy, in 

conjunction with several “botched” executions in other states, creates an 

unacceptable risk that his execution will be severely painful in violation of the 

Eighth Amendment. Furthermore, Trottie asserts that the failure to disclose 

this information is a violation of his due process rights. On September 5, 2014, 

Judge Atlas denied the motion in a thoughtful and thorough opinion. Trottie 

v. Livingston, et al., No. 4:14-2550 (S.D. Tex. Sept. 5, 2014). Trottie appeals. 

II.

We review a denial of a motion for preliminary injunction for abuse of 

discretion. Janvey v. Alguire, 647 F.3d 585, 591–92 (5th Cir. 2011). The 

Supreme Court recognized a narrow exception to the general rule that prevents 

federal courts from granting stays where a state’s execution procedures would 

not comport with the Constitution. See Baze v. Rees, 553 U.S. 35, 61 (2008). 

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Filing a “§ 1983 [action] does not entitle the complainant to an order staying 

an execution as a matter of course.” Hill v. McDonough, 547 U.S. 573, 583–85 

(2006). Rather, “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 courts.” Nelson v. Campbell, 541 U.S. 647, 649–50 (2004).

To be entitled to a preliminary injunction, a movant must establish (1) a 

likelihood of success on the merits; (2) a substantial threat of irreparable 

injury; (3) that the threatened injury if the injunction is denied outweighs any 

harm that will result if the injunction is granted; and (4) that the grant of an 

injunction will not disserve the public interest. Sells v. Livingston, 750 F.3d 

480 (5th Cir. 2014) (citing Janvey, 647 F.3d at 595).

III.

Trottie alleges that he has a due process right to information regarding 

the pentobarbital the Texas Department of Criminal Justice (“TDCJ”) plans to 

use during his scheduled execution, including the source of the drug, how it is 

prepared, and who has tested it. The State has already disclosed that Trottie 

will be executed with a 5g dose of pentobarbital obtained from a licensed

compounding pharmacy within the United States and that the pentobarbital 

to be used has been tested by an independent laboratory and found to be 108% 

potent and free from contaminants. The State also asserts that the drug is not 

expired and will not expire until September 30, 2014. Moreover, the State 

disclosed that the execution will be carried out in accordance with the TDCJ’s 

July 9, 2012 Execution Procedure, which has been the procedure used in thirtythree executions in Texas. 

Trottie has no likelihood of success on the merits because his argument 

is foreclosed by our precedent. A due process right to disclosure requires an 

inmate to show a cognizable liberty interest in obtaining information about 

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execution protocols. Trottie speculates that there are unknowns regarding the 

drug to be used which may add an unacceptable risk of pain and suffering. 

However, we have held that an uncertainty as to the method of execution is 

not a cognizable liberty interest. Sepulvado v. Jindal, 729 F.3d 413, 420 (5th 

Cir. 2013), cert. denied, 134 S. Ct. 1789 (2014). A death row inmate is entitled 

to an injunction if he points to “some hypothetical situation, based on science 

and fact, showing a likelihood of severe pain.” Whitaker v. Livingston, 732 F.3d 

465, 468 (5th Cir. 2013). “[M]ere speculation is not enough.” Id. at 469. Trottie

relies on speculation alone and thus has not articulated a cognizable liberty 

interest. 

This court has upheld the State’s procedure, which includes a drug team 

that prepares two syringes containing the pentobarbital and a medically 

trained individual who inserts the intravenous catheters.1 See Raby v. 

Livingston, 600 F.3d 552, 555–56 (5th Cir. 2010). Trottie has not alleged any 

change in the State’s procedure or execution drug that would distinguish the 

prior unsuccessful legal challenges. Indeed, Trottie’s request is nearly 

identical to the request made in Sells, in which the State used the same July 

9, 2012 Execution Procedure as will be used here. In Sells, the inmates sought 

the source of the pentobarbital, documentation reflecting the 

purchase of the drug, the timing and means of storage of the drug, 

the date of manufacture/mixing of the drug, any lot numbers which 

may exist, the raw ingredients used to make the drug and the 

source of same, the testing that was conducted on the drug and the 

results of that testing, and the laboratory and names of its 

personnel which conducted the testing. 

1 The only difference between the July 9, 2012 Execution Procedure and the procedure

we considered in Raby v. Livingston, 600 F.3d 552 (5th Cir. 2010), is a change from the use 

of three drugs to a single drug. It is well established in this circuit that the single-drug 

protocol is valid. See Sells, 750 F.3d at 481; Thorson v. Epps, 701 F.3d 444, 447 n.3 (5th Cir.

2012); see also Campbell v. Livingston, et al., 2014 WL 1887578 (5th Cir. May 12, 2014), cert. 

denied, 134 S. Ct. 2829 (2014).

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Sells, 750 F.3d at 480. The Sells court denied the inmates’ request because 

“[n]o appellate decision had yet held that obtaining information about 

execution protocols was a liberty interest, which meant that failing to disclose 

could not be a due-process violation.” Id. at 481. We are bound by Sells. See 

Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008) (“It is 

a well-settled Fifth Circuit rule of orderliness that one panel of our court may 

not overturn another panel’s decision, absent an intervening change in the law, 

such as by a statutory amendment, or the Supreme Court, or our en banc

court.”).

Pursuant to binding precedent, we conclude that Trottie has not shown 

a likelihood of success on his constitutional claims. Accordingly, we AFFIRM

the district court’s denial of Trottie’s motion for a preliminary injunction or 

temporary restraining order. The stay of execution is DENIED. 

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