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
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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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