[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 12-16280

Non-Argument Calendar

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D.C. Docket No. 3:12-cv-01328-TJC-JBT

MANUEL PARDO, JR., 

llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellant,

versus

JOHN PALMER, 

in his official capacity as the Warden of Florida

State Prison,

KENNETH S. TUCKER,

in his official capacity as the Secretary, Florida

Department of Corrections,

DOES 1-50, 

in their official capacities as Executioners for

the State of Florida,

llllllllllllllllllllllllllllllllllllllllDefendants - Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(December 11, 2012)

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Before DUBINA, Chief Judge, WILSON and MARTIN, Circuit Judges.

PER CURIAM:

Appellant Manuel Pardo, Jr., is a death row prisoner scheduled to be 

executed by the State of Florida on December 11, 2012. On December 6, 2012, 

Pardo brought suit in federal district court, filing a complaint under 42 U.S.C. § 

1983 and filing a motion for temporary restraining order, preliminary injunction, 

and a stay of execution. Pardo contends that: (1) Florida’s three-drug lethal 

injection protocol violates his right to be free from cruel and unusual punishment 

under the Eighth Amendment; and (2) Appellees’ deviation from the core 

components of the execution process set forth in the written protocol violates his 

right to equal protection under the Fourteenth Amendment.

Because we have recently addressed nearly identical claims in Ferguson v. 

Warden, No. 12-15191, 2012 WL 4946112 (11th Cir. Oct. 18, 2012), the district 

court specifically requested additional briefing on the issue of whether Pardo’s 

case is in any way distinguishable from Ferguson. On December 10, 2012, after 

an evidentiary hearing, the district court denied Pardo’s motion. Pardo v. Palmer, 

No. 3:12-cv-1328, __ F. Supp.2d __ (M.D. Fla. Dec. 10, 2012). The district court

concluded that because Pardo failed to demonstrate that his claims were

distinguishable from the ones that we considered and rejected in Ferguson, he

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failed to demonstrate a substantial likelihood of success on the merits of his Eighth 

and Fourteenth Amendment claims. Id. This appeal followed.

“A stay of execution is equitable relief which this Court may grant only if 

the moving party shows that: (1) he has a substantial likelihood of success on the 

merits; (2) he will suffer irreparable injury unless the injunction issues; (3) the stay 

would not substantially harm the other litigant; and (4) if issued, the injunction 

would not be adverse to the public interest.” DeYoung v. Owens, 646 F.3d 1319, 

1324 (11th Cir. 2011) (internal quotation marks omitted). “We review the denial 

of a stay of execution under the abuse-of-discretion standard.” Powell v. Thomas

(Powell (Williams)), 641 F.3d 1255, 1257 (11th Cir. 2011) (per curiam), cert. 

denied Williams v. Thomas, 131 S. Ct. 2487 (2011).

A. Substantial Likelihood of Success on the Merits

Pardo’s constitutional arguments mirror those raised by Ferguson just two

months ago. Like Ferguson, Pardo argues that Florida’s lethal injection protocol 

violates the Eighth and Fourteenth Amendments because (1) Florida’s September 

4, 2012 protocol resulted in a substantial change to the execution protocol; (2) 

evolving standards of decency show that the three-drug protocol creates an 

“objectively intolerable risk of harm”; and (3) Florida’s implementation of its 

three-drug protocol is flawed.

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1. Eighth Amendment Violation

In order for Pardo to prevail on his Eighth Amendment claim, he must 

demonstrate that:

(1) the State is being deliberately indifferent (2) to a condition that 

poses a substantial risk of serious harm to him. In the lethal injection 

context, this standard requires an inmate to show an objectively 

intolerable risk of harm that prevents prison officials from pleading 

that they were subjectively blameless for purposes of the Eighth 

Amendment.

DeYoung, 646 F.3d at 1325 (internal quotations marks and citations omitted). We

conclude that Pardo has not demonstrated a substantial likelihood of success on the 

merits of his Eighth Amendment claim. As properly recognized by the district 

court, we addressed the substantive merits of each of Pardo’s claims in Ferguson, 

and squarely rejected them. See Ferguson, No. 12-15191, 2012 WL 4946112. 

Pardo’s efforts to distinguish his case are not successful.

Here, unlike Arthur v. Thomas, 674 F.3d 1257 (11th Cir. 2012) (per curiam), 

the district court properly treated the question of whether a significant change has 

occurred in Florida’s lethal injection protocol as a fact-dependent inquiry. Pardo 

was granted an evidentiary hearing by the district court and an opportunity to 

present witnesses to support his Eighth Amendment and Equal Protection claims, 

as well as an opportunity to cross-examine the state’s witnesses regarding the 

changes wrought by Florida’s September 4, 2012 lethal injection protocol. Based 

on a review of the record, we are convinced that the district court correctly 

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identified the governing legal principles, and then carefully considered Pardo’s 

evidence and allegations with a fresh look.

With regard to the statute of limitations, “[w]e have consistently held that a 

method of execution claim accrues on the later of the date on which state review is 

complete, or the date on which the capital litigant becomes subject to a new or 

substantially changed execution protocol.” Ferguson, No. 12-15191, 2012 WL 

4946112, at *2 (quoting McNair v. Allen, 515 F.3d 1168, 1174 (11th Cir. 2008) 

(internal quotation marks omitted)). Because Pardo filed his “method of 

execution” challenge outside of the running of the statute of limitations, and

because we have explicitly held that changes to the first and second drugs in the 

three-drug sequence do “not constitute a substantial change,” see id. (citing Powell, 

643 F.3d at 1304), Pardo’s claim comes too late.

Pardo’s allegedly distinguishable contention that “the one-drug protocol is 

now constitutionally required” is insufficient to differentiate this case from 

Ferguson. We likewise addressed Ferguson’s “evolving standards of decency” 

claim—which Pardo reiterates here—and found it lacking: “[a]lthough the onedrug protocol is a feasible alternative that could be readily implemented, ‘a 

condemned prisoner cannot successfully challenge a State’s method of execution 

merely by showing a slightly or marginally safer alternative.’” See Ferguson, No. 

12-15191, 2012 WL 4946112, at *3 (quoting Baze v. Rees, 553 U.S. 35, 51, 128 S. 

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Ct. 1520, 1531 (2008)). Even if nine of our sister states have adopted a one-drug 

protocol, it is not our role to transform ourselves into a “board[] of inquiry charged 

with determining the ‘best practices’ for executions.” Baze, 553 U.S. at 51, 128 S. 

Ct. at 1531.

Moreover, as to the merits of Pardo’s claim, Dr. Heath’s expanded

declaration fails to add anything new to our inquiry, as his testimony presents 

nothing more than mere speculation. As we stated in Ferguson, “speculation as to 

the parade of horribles that could possibly occur during [an] execution does not 

meet the burden of proof required by the Eighth Amendment.” Ferguson, No. 12-

15191, 2012 WL 4946112, at *2 (citing DeYoung, 646 F.3d at 1325).

Accordingly, because Pardo has failed to distinguish Ferguson on any ground, his 

arguments, too, must fail.

2. Fourteenth Amendment Violation

Pardo also contends that he is likely to succeed on his claim under the Equal 

Protection Clause because the State might deviate from the “core components of 

the execution process” set forth in the written protocol. “To state an equal 

protection claim, [Pardo] must show that the State will treat him disparately from 

other similarly situated persons.” DeYoung, 646 F.3d at 1327 (citing Amnesty 

Int’l. USA v. Battle, 559 F.3d 1170, 1180 (11th Cir. 2009)). “Second, ‘[i]f a law 

treats individuals differently on the basis of . . . [a] suspect classification, or if the 

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law impinges on a fundamental right, it is subject to strict scrutiny.’” Arthur, 674 

F.3d at 1262 (alterations in original) (quoting Leib v. Hillsborough Cnty. Pub. 

Transp. Comm’n, 558 F.3d 1301, 1306 (11th Cir. 2009)).

Pardo fails to assert that any of the alleged deficiencies will result in 

disparate treatment from other death row inmates. Ferguson raised this exact 

claim, and nothing about the protocol has changed in the last two months. “Under 

Florida’s 2012 protocol, all death row inmates facing execution will be subject to 

the same sequence of drugs, the same procedures, and the same safeguards in the 

execution process.” Ferguson, No. 12-15191, 2012 WL 4946112, at *3. As such, 

Pardo has presented no evidence to substantiate his claim of disparate treatment.

B. Remaining Arguments

Finally, Pardo avers that he will suffer irreparable harm if injunctive relief is 

not granted. We need not decide whether Pardo has established irreparable injury 

because he has failed to satisfy his burden regarding the substantial likelihood of 

success on the merits. Likewise, Pardo’s arguments regarding the equities of 

execution and the public interest are outside of our purview. Accordingly, Pardo’s 

motion for temporary restraining order, preliminary injunction, and stay of 

execution is denied, and the district court’s order is affirmed.

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MOTION FOR TEMPORARY RESTRAINING ORDER, 

PRELIMINARY INJUNCTION, AND STAY OF EXECUTION IS DENIED; 

DISTRICT COURT’S ORDER IS AFFIRMED.

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