White v. Johnson

                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                     UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT                    November 1, 2005

                           _______________________              Charles R. Fulbruge III
                                                                        Clerk
                                 No. 05-70050
                           _______________________


                             MELVIN WAYNE WHITE,

                                                      Plaintiff-Appellant,

                                    versus

                  GARY L. JOHNSON, Executive Director,
             Texas Department of Criminal Justice, et. al.,

                                                     Defendants-Appellees.



              Appeal from the United States District Court
                   for the Southern District of Texas


Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:

             Appellant Melvin Wayne White appeals the dismissal of his

action seeking injunctive relief under 42 U.S.C. § 1983, in which

he alleged that Texas’s method of execution violated the Eighth and

Fourteenth Amendments of the Constitution.         The district court sua

sponte dismissed White’s action because it determined that he was

dilatory in filing his action for equitable relief.            We AFFIRM.



                               I.   BACKGROUND

             White was convicted of capital murder and sentenced to

death   on    June   17,    1999.    Thereafter,     White   unsuccessfully
petitioned for state and federal habeas corpus relief, and on

October 11, 2005, the Supreme Court denied White’s petition for a

writ of certiorari.          On October 21, 2005, White filed a § 1983

action, requesting a permanent injunction prohibiting the State of

Texas from i) injecting him with a combination of sodium pentothal,

pancuronium bromide, and potassium chloride; and ii) utilizing any

invasive medical procedures to gain venous access for the lethal

injection.

                                II.    DISCUSSION

             The district court sua sponte dismissed White’s action

for equitable relief because it determined that, just like the

plaintiff in Harris v. Johnson, 376 F.3d 414 (5th Cir. 2004), White

waited too long to bring his § 1983 claim.                  We review the district

court’s sua sponte dismissal de novo.                   Bazrowx v. Scott, 136 F.3d

1053, 1054 (5th Cir. 1998).

             “[M]ethod of execution actions may be brought in a § 1983

suit instead of a habeas petition,” but the § 1983 claim should

“not unduly threaten the State’s ability to carry out the scheduled

execution.”     Harris, 376 F.3d at 416 (citing Nelson v. Campbell,

541   U.S.    637,    643-48,    124     S.       Ct.    2117,   2123-25   (2004)).

Additionally, the fact that “an inmate states a cognizable § 1983

claim does not warrant the entry of a stay as a matter of right,”

and   “[a]    court    may    consider       the    last-minute     nature      of   an

application    to     stay   execution       in    deciding      whether   to   grant



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equitable relief.”       Nelson, 541 U.S. at 649, 124 S. Ct. at 2125-26

(citing Gomez v. U.S. Dist. Court., 503 U.S. 653, 112 S. Ct. 1652

(1992)   (per     curiam)).      White   argues       that   because    he    is   not

requesting a stay, the Supreme Court’s pronouncements in Nelson

should not apply. These rules, however, were declared by the Court

in the context of last-minute § 1983 method of execution challenges

as   well    as   last-minute    stay    requests.       Id.     The    principles

enunciated by the Court are equally applicable to all types of

equitable     relief,    including      permanent      injunctions,     sought      by

inmates facing imminent execution.

             When weighing equitable remedies, a court “must take into

consideration the State’s strong interest in proceeding with its

judgment and . . . attempts at manipulation.”                     Id.        Further,

“[g]iven the State’s significant interest in enforcing its criminal

judgments, there is a strong equitable presumption against” last-

minute equitable remedy requests.              See id. at 650, 124 S. Ct. at

2126.       This presumption occurs because the inmate could have

brought the action at an earlier time, which would have allowed the

court to consider the merits without having to utilize last-minute

equitable remedies.        See id.

             As   in   Harris,   “[w]e    do    not    decide   whether       [White]

properly states a claim under § 1983, because even if he does, he

is not entitled to the equitable relief he seeks” due to his

dilatory filing.        376 F.3d at 417 (citing Gomez, 503 U.S. at 654,

112 S. Ct. 1652).        White has been on death row for more than six

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years, and only now, with his execution imminent, has decided to

challenge a procedure for lethal injection that the State has been

using for his entire stay on death row.             See    Harris, 376 F.3d at

417. Like Harris, White has no excuse for delaying his claim until

the eleventh hour, and he cannot argue that “he was unaware of the

State’s intention to execute him by injecting the three chemicals
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he now challenges.”       Id.

            The State concedes that when Harris’s conviction became

final on direct review, his challenge to the State’s method of

execution, in the absence of dramatic changes to the State’s

protocol,    cf.   Nelson,      541   U.S.   at   641,   124   S.   Ct.   at   2121

(authorizing § 1983 challenge to cut-down procedure newly adopted

in petitioner’s case), would have been appropriately filed at any

time thereafter and need not await an imminent execution date.                   We

agree.

            Because we conclude that equitable relief for this last-

minute challenge to the method of execution is improper, we do not

reach the question whether White’s claims, to the extent they would

require injunctive relief “seemingly without regard to whether the

State did or did not resort to the cut-down,” see Nelson, 541 U.S.

at 648, 124 S. Ct. at 2125 are in effect a successive habeas

1
      Additional hurdles face White’s complaint that, because the State might use
a cut-down procedure to gain venous access, he will be subject to an Eighth
Amendment violation. First, it is counter-factual, as the State denies it will
resort to this procedure, and White concedes that IV access has been achieved in
his hands several times. Second, this claim is barred from federal review by
White’s failure to exhaust it pursuant to the PLRA. See, Underwood v. Wilson,
151F.3d 292 (5th Cir. 1998).

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petition, Id. Nor do we reach the State’s arguments for preclusion

based on administrative rulings.

                        III.   CONCLUSION

          For the reasons discussed above, we AFFIRM the district

court’s dismissal of White’s § 1983 action.




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