Ladd v. Livingston
Opinion of the Court
Robert Charles Ladd was convicted of capital murder and sentenced to death. He is scheduled to be executed by the State of Texas on January 29, 2015. On January 27, 2015, after the Supreme Court granted certiorari in Glossip v. Gross, Ladd filed a section 1983 lawsuit alleging that the state’s method of execution would violate his Eighth and Fourteenth Amendment rights. The district court denied his motion for a preliminary injunction or temporary restraining order. Compelled by our court’s precedent, we AFFIRM.
I.
This case has a complex factual and procedural background, which we laid out in detail in our earlier opinion affirming the district court’s denial of habeas relief.
On August 23, 1997, Ladd was convicted of capital murder for the rape and murder of Vicki Ann Garner. A Texas state, jury imposed the death penalty four days later. The Texas Court of Criminal Appeals affirmed Ladd’s sentence and conviction on direct appeal in October 1999.
In 2002, the Supreme Court, in Atkins v. Virginia, altered the capital punishment landscape by holding that individuals who are intellectually disabled are categorically ineligible for the death penalty.
On January 23, 2015, the Supreme Court granted certiorari in Glossip v. Gross,
II.
A.
We review the denial of a motion for preliminary injunctive relief for abuse of discretion.
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.17
We are also mindful of the Supreme Court’s admonition that “[fjiling an action that can proceed under [section] 1983 does not entitle the complainant to an order staying the execution as a matter of course.”
Following the Supreme Court’s decision in Baze v. Rees,
We have repeatedly upheld against Eighth Amendment challenge Texas’s Execution Procedure of July 9, 2012, which involves the use of a single drug, pentobarbital.
In an attempt to distinguish this precedent, Ladd raises two arguments. First, he argues that compounded drugs are unregulated and subject to quality and efficacy problems. This argument, however, is essentially speculative, and the Supreme Court has held that “speculation cannot substitute for evidence that the use of the drug is 'sure or very likely to cause serious illness and needless suffering.’ ”
III.
Against this backdrop, Ladd nonetheless argues that we should stay his execution because of the Supreme Court’s grant of certiorari in Glossip. That case addresses an Eighth Amendment challenge to Oklahoma’s three-drug protocol. None of the three questions presented in that petition are directly on point with this case, however. The first question looks to whether a three-drug execution protocol is constitutionally permissible, an issue not relevant when the state uses a one-drug protocol. The second question asks whether the Baze standard applies when states are not using a protocol “substantially similar” to the one that the Supreme Court considered in Baze. Our court has already held that the Texas execution protocol is substantially similar to the Baze standard.
In any event, whatever our speculation about how the Supreme Court may alter the law in the future, we are bound to follow our precedent as it exists today.
IV.
We AFFIRM the district court’s order denying the motion for temporary injunc
. Ladd v. Stephens, 748 F.3d 637 (5th Cir. 2014).
. Id. at 640. The United States Supreme Court denied Ladd’s petition for a writ of certiorari on April 17, 2000. Id.
. See id. Following the Supreme Court’s recent opinion in Hall v. Florida, -U.S.-, 134 S.Ct. 1986, 1990, 188 L.Ed.2d 1007 (2014), we use the term "intellectual disability” where "mental retardation” had previously been used.
. Ladd, 748 F.3d at 640.
. 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).
. Ladd, 748 F.3d at 641.
. Id. at 644. While the evidentiary hearing was held in 2005, the district court did not issue its ruling until 2013.
. Id. at 647.
. Ladd v. Stephens, - U.S. -, 135 S.Ct. 192, 190 L.Ed.2d 150 (2014) (mem.).
. Nos. 14-7955, 14-A761, -U.S.-, 135 S.Ct. 1173, 190 L.Ed.2d 929, 2015 WL 302647 (U.S. Jan. 23, 2015).
. Warner v. Gross, No. 14-6244, 776 F.3d 721, 723-25, 2015 WL 137627, at *1-2 (10th Cir. Jan. 12, 2015).
. Ladd’s complaint was jointly filed with Garcia Glen White, who was originally scheduled to be executed on January 28, 2015. On January 27, 2015, the Texas Court of Criminal Appeals stayed White’s execution pending further order. That cause, which raises identical issues to those addressed in this case, is being adjudicated by a separate panel of this court.
. In Hill v. McDonough, 547 U.S. 573, 580-81, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006), the Supreme Court held that section 1983 was a proper vehicle for bringing a challenge to the specific manner of execution employed by the state. This is in contrast to a challenge to the sentence of death, which can only be brought through a habeas petition. See id. at 579-80, 126 S.Ct. 2096.
. See Mem. & Order, Docket No. 4:15-cv-00233, ECF No. 9. Also on January 27, 2015, the Texas Court of Criminal Appeals dismissed Ladd's second application for a writ of habeas corpus and denied his motion for a stay of execution.
. Concurrent with his appeal, Ladd moves in this court for a stay of execution and for permission to proceed in forma pauperis.
. Trottie v. Livingston, 766 F.3d 450, 451 (5th Cir. 2014).
. Id. at 452 (citing Sells v. Livingston, 750 F.3d 478, 480 (5th Cir. 2014)). This standard is essentially the same as the framework for deciding whether to grant a stay of execution. See Adams v. Thaler, 679 F.3d 312, 318 (5th Cir. 2012).
. Hill, 547 U.S. at 583-84, 126 S.Ct. 2096.
. Id.
. 553 U.S. 35, 61, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) (plurality op.).
. Whitaker v. Livingston, 732 F.3d 465, 468 (5th Cir. 2013).
. See, e.g., Trottie v. Livingston, 766 F.3d 450, 452-53 (5th Cir. 2014); Campbell v. Livingston, 567 Fed.Appx. 287, 289 (5th Cir. 2014) (unpublished); Sells v. Livingston, 750 F.3d 478, 480-81 (5th Cir. 2014); Sells v. Livingston, 561 Fed.Appx. 342, 344-45 (5th Cir. 2014) (unpublished); Thorson v. Epps, 701 F.3d 444, 447 n. 3 (5th Cir. 2012) (holding, in a decision addressing Mississippi's execution process, that Texas's one-drug protocol is acceptable under Baze).
. See Trottie, 766 F.3d at 452; Def.s' Opp’n Temporary Injunctive Relief & Mot. TRO Seeking Stay Execution ("Defs' Opp’n''), at 2.
. See United States v. Traxler, 764 F.3d 486, 489 (5th Cir. 2014).
. Brewer v. Landrigan, — U.S. -, 131 S.Ct. 445, 445, 178 L.Ed.2d 346 (2010) (mem.) (quoting Baze, 553 U.S. at 50, 128 S.Ct. 1520 (plurality op.)).
. Whitaker, 732 F.3d at 468.
. Id.
. Warner v. Gross, -U.S. -, 135 S.Ct. 824, 190 L.Ed.2d 903 (2015) (mem.) (Soto-mayor, J., dissenting from denial of stay of execution).
. Press reports indicate that one prisoner said that "[i]t does kind of burn. Goodbye,” as the pentobarbital took effect. The media report indicates that all movement stopped "[w]ithin seconds.” Defs.’ Opp’n at 20.
. Landrigan, 131 S.Ct. at 445 (quoting Baze, 553 U.S. at 50, 128 S.Ct. 1520).
. See Raby v. Livingston, 600 F.3d 552, 558—60 (5th Cir. 2010); see also Thorson v. Epps, 701 F.3d 444, 447 & n. 3 (5th Cir. 2012).
. Pet. Writ Certiorari, at L, Warner v. Gross, No. 14-7955 (U.S. 2015).
. See, e.g., Sells v. Livingston, 750 F.3d 478, 480-81 (5th Cir. 2014); see also Raby, 600 F.3d at 560 (concluded that plaintiff "has failed to establish that the Texas lethal injection protocol creates a demonstrated risk of severe pain”).
. See Wicker v. McCotter, 798 F.2d 155, 157-58 (5th Cir. 1986) (holding that, notwithstanding the fact that the Supreme Court had granted a writ of certiorari in a related case, "we must follow our circuit's precedents and deny ... a stay of execution”).
Reference
- Full Case Name
- Robert Charles LADD v. Brad LIVINGSTON, Executive Director, Texas Department of Criminal Justice William Stephens, Director, Texas Department of Criminal Justice, Correctional Institutions Division James Jones, Senior Warden, Huntsville Unit Huntsville, Texas Unknown Executioners
- Cited By
- 19 cases
- Status
- Published