Case 4:18-cv-04521 Document 4 Filed in TXSD on 11/30/18 Page 1 of 34

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOSEPH C. GARCIA,
PLAINTIFF,
V.

BRYAN COLLIER,
EXECUTIVE DIRECTOR OF TEXAS
DEPARTMENT OF CRIMINAL JUSTICE
LORIE DAVIS,
DIRECTOR OF THE CORRECTIONAL
INSTITUTIONS DIVISION OF TEXAS
DEPARTMENT OF CRIMINAL JUSTICE
JAMES L. JONES,
SENIOR WARDEN OF THE HUNTSVILLE
UNIT
AND

JOHN OR JANE DOES (UNKNOWN
EXECUTIONERS) 1-50
DEFENDANTS.

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CASE NO. 4:18-CV-4521

CAPITAL CASE
EXECUTION DATE
DECEMBER 4, 2018

PLANTIFF’S MOTION FOR PRELIMINARY INJUNCTION
Plaintiff Joseph Garcia has filed a complaint pursuant to 42 U.S.C. § 1983 in
the above-captioned case, in which he alleges that he the State of Texas will use a
compounded lethal-injection drug that will result in him experiencing severe pain
during his execution, such that his execution will violate his Eighth Amendment
right to be free from cruel and unusual punishment. He now respectfully asks this

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Court for a preliminary injunction under Rule 65(a) of the Federal Rules of Civil
Procedure barring Defendants from executing him until it demonstrates that they
have acquired a supply of pentobarbital from a reputable pharmacy, and if that
pentobarbital is compounded, that it has been tested shortly before use. Garcia seeks
injunctive relief barring Defendants and each of them and their agents from acting
in a manner that will deprive him of his First, Eighth, and Fourteenth Amendment
rights, under the United States Constitution and 42 U.S.C. § 1983.
In his Complaint filed simultaneously with this Motion, Garcia asserts four
claims. First, Defendants’ use of compounded pentobarbital from a pharmacy that
has a history of compounding unsafe drugs demonstrates deliberate indifference and
creates a substantial risk of serious harm, violating Garcia’s Eighth Amendment
right to be free from cruel and unusual punishment. Second, by deliberately
concealing necessary information from Garcia, Defendants have violated his First
Amendment right to be informed about the manner in which the State implements
the most serious penalty available in the criminal-justice system. Third, Defendants’
deliberate actions in hiding information regarding the source of the pentobarbital
that they intend to use to execute Garcia denies him of his federal rights to due
process and meaningful access to the courts. Fourth, Defendants’ actions violate
Garcia’s right to equal protection under the law pursuant to the Fourteenth
Amendment.
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In light of his pending execution date of December 4, 2018, a preliminary
injunction and a stay is necessary to allow Garcia to litigate his claim before he is
unconstitutionally executed. Garcia also requests expedited discovery, oral
argument, and an evidentiary hearing on his motion. This motion is supported by the
attached memorandum.

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MEMORANDUM IN SUPPORT OF MOTION
Pentobarbital is a schedule II prescription drug regulated under a complex set
of federal laws that address the manufacturing, possession, distribution, labeling,
and importation of controlled substances. It is the drug the State of Texas uses to
execute prisoners. (See TDCJ1 Execution Procedure (July 2012) at 8, attached as
Ex. A.)
Texas obtains its execution-related pentobarbital from a pharmacy located in
Texas. (See Decl. of Pharmacy X, McGehee v. TDCJ, No. 4:18-mc-01546 (S.D. Tex.
June 22, 2018) ECF No. 12-4, attached as Ex. B.) According to a recent report by
an investigative journalist, that pharmacy is Greenpark Compounding Pharmacy
(“Greenpark”). (See Chris McDaniel, Inmates said the drug burned as they died.
This is how Texas gets its execution drugs. BuzzFeed (Nov. 28, 2018 at 5:09 p.m.
ET), attached as Ex. C.2) This pharmacy has been cited for multiple safety
violations, by the Food and Drug Administration, and the Texas State Board of
Pharmacy. Id.
Within hours of the publication of that news article, Garcia’s counsel
contacted TDCJ requesting information about its source of the pentobarbital it

Texas Department of Criminal Justice
Also, available at https://www.buzzfeednews.com/article/chrismcdaniel/inmatessaid-the-drug-burned-as-they-died-this-is-how-texas?utm_term=.pkxy4410jP#.
pkxy4410jP
1
2

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intends to use in his execution. (Nov. 28, 2018 Letter to Laurie Davis, attached as
Ex. D). TDCJ has not responded.
Accordingly, Garcia has filed the Complaint in this case. In light of Garcia’s
scheduled execution date of December 4, 2018, a preliminary injunction is necessary
to allow Garcia to litigate his claims in order to ensure that Texas does not execute
him in a manner that violates his constitutional rights.
I.

Background
Drug compounding is “the process of combining, mixing, or altering

ingredients to create a medication tailored to the needs of an individual patient.
Compounding includes the combining of two or more drugs. Compounded drugs are
not FDA-approved.”3 Compounded drugs include “sterile injectables”—drugs that
are intended to be injected into a person, and therefore must be sterile.
Although medical professionals sometimes recommend compounded drugs
for their patients when an FDA-approved drug is not medically appropriate for
them,4 relying on compounding pharmacies can be risky. As the FDA explains, “they
do not have the same safety, quality, and effectiveness assurances as approved drugs.
Unnecessary use of compounded drugs unnecessarily exposes patients to potentially

Compounding and the FDA: Questions and Answers, https://www.fda.gov/Drugs/
GuidanceComplianceRegulatoryInformation/PharmacyCompounding/ucm339764.
htm.
4
See, e.g., id.
3

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serious health risks.”5 Moreover, the FDA “has observed troubling conditions during
many of its inspections of compounding facilities including toaster ovens used for
sterilization, pet beds near sterile compounding areas, and operators handling sterile
drug products with exposed skin, which sheds particles and bacteria, among many
others.”6 Reliance on compounding pharmacies is risky, however, because
regulations governing such pharmacies are lax and vary from state to state, and
instances of contamination abound; American Medical Association guidelines even
warn doctors that prescribing compounded medications can lead to malpractice
liability. Deborah Denno, Lethal Injection Chaos Post-Baze, 102 Geo. L.J. 1331,
1360-68 (2014). Therefore Defendants choice to use compounded pentobarbital
requires them to exercise due diligence about the safety practices of their sources.
A.

Unsafe practices at compounding pharmacies create significant
health crises.

Unsafe practices by compounding pharmacies have caused numerous public
health crises over the years.7 In 2012, injectable steroids produced by the New
England Compounding Center (NECC) led to a tragic fungal meningitis outbreak

Id.
Id.
7
A Continuing Investigation into the Fungal Meningitis Outbreak and Whether it
Could Have Been Prevented Before the Subcomm. on Oversight & Investigations of
the H. Comm. on Energy & Commerce, 113th Cong. 2 (2013) (statement of Margaret
A. Hamburg, M.D., Comm’r, FDA) [hereinafter Hamburg Statement] (reporting
multiple incidences over the past twenty years where compounded drugs have
caused deaths and serious injuries).
5
6

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across twenty states, infecting more than 800 individuals and resulting in 64 deaths.
Kurt Eichenwald, Killer Pharmacy: Inside a Medical Mass Murder Case,
Newsweek (Apr. 16, 2015 at 7:07 AM).8 An FDA inspection report of NECC
facilities following the outbreak noted several alarming observations, including
yellow and greenish residue lining on surfaces of equipment used in producing
sterile drug products, “dark, hair-like discoloration” along the edges of a “Clean
Room” used to formulate and fill sterile preparations, and multiple vials of sterile
injectable drugs containing “greenish black foreign matter” and “white filamentous
material.” FDA, Form FDA 483 issued to Barry J. Cadden of New England
Compounding Pharmacy Inc. 1, 7-8 (Oct. 26, 2012).9
A subsequent FDA investigation of 55 compounding pharmacies found that
more than 75% of those inspected had “serious issues,” such as “lack of appropriate
air filtration systems, insufficient microbiological testing, and other practices that
create risk of contamination.”10
These concerns directly affect Defendants’ supply of pentobarbital:
Defendants apparently obtain at least some of their pentobarbital from a

Available at http://www.newsweek.com/2015/04/24/inside-one-most-murderouscorporate-crimes-us-history-322665.html.
9
Available at
http://www.fda.gov/downloads/AboutFDA/CentersOffices/OfficeofGlobalRegulato
ryOperationsandPolicy/ORA/ORAElectronicReadingRoom/UCM325980.pdf.
10
Hamburg Statement at 5.
8

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compounding pharmacy that has been repeatedly cited for violating safety
requirements in their compounding procedures.
B.

TDCJ purchases compounded drugs for use in executions.

In September 2013, the TDCJ began purchasing and using compounded
pentobarbital, instead of manufactured pentobarbital, to carry out its executions.
At approximately 4:30 p.m. CST on November 28, 2018, Garcia learned from
a news article that TDCJ has for the last three and half years procured the drugs it
uses to carry out lethal injections from Greenpark, a compounding pharmacy that
regulators have repeatedly cited for dangerous practices. (See Ex. C.)
Reporter McDaniel tied Greenpark to a declaration submitted to the United
States District Court for the Southern District of Texas, Houston Division under the
pseudonym Pharmacy X. (See Exs. B & C.) In the declaration, Greenpark averred
that it “has supplied lethal injection chemicals to the Texas Department of Criminal
Justice for use in executions of death row inmates.” (Ex. B, ¶ 3.) Greenpark stated
that its decision to supply lethal-injection chemicals “was and is” contingent on its
identity remaining a secret, and that it would end its business with TDCJ if its
identity were revealed. (Ex. B, ¶ 4.)
C.

Greenpark has a history of safety violations.

Greenpark has been cited for safety violations in recent years, related to its
compounding practices, and its license has been in a probationary status since
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November of 2016, when the Texas State Board of Pharmacy (“TBP”) found that it
compounded the wrong drug for three children. (See TBP Order #H-16-006-B,
attached as Ex. E.)
TBP found that Greenpark failed to verify or incorrectly verified the correct
identity of an ingredient used in compounding a batch preparation, which resulted
in the children receiving compounded lorazepam instead of lansoprazole. (See Ex.
E.) The lansoprazole, that the children were supposed to receive, is used to treat high
levels of stomach acid,11 but the lorazepam that they did receive is a benzodiazepine
used to treat seizures and anxiety.12 After taking the compounded drug with
lorazepam, one of the children was hospitalized after experiencing adverse effects,
including drowsiness, lack of coordination and irritability. (See Ex. E.) In the same
order, TBP also found that an employee of Greenpark forged a quality control
document for the compounded batch preparation mentioned above. (See Ex. E.) As
a result, TBP placed Greenpark’s license on probation for a period of two years,
beginning thirty days after the entry of its order on November 1, 2016. (See Ex. E.)
TBP also issued several Warning Notices to Greenpark for violations of rules

See U.S. Nat’l Library of Medicine, DailyMed: Lansoprazole,
https://dailymed.nlm.nih.gov/ dailymed/drugInfo.cfm?setid=9cf54748-80da-428d86f1-2a17f1160bc2.
12
See U.S. Nat’l Library of Medicine, DailyMed: Lorazepam,
https://dailymed.nlm.nih.gov/ dailymed/drugInfo.cfm?setid=ae274b1f-27c3-483b99f1-9a9249dc2459.
11

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governing practices for producing sterile drug products.
On March 27, 2017, Greenpark received three Warning Notices for, inter alia,
the failure to: “conduct and document filter integrity tests on all filters used to
sterilize high risk or batch preparations”; certify its hood since June 2015,
compromising pre-sterilization procedures for high risk sterile compounding;
conduct and document results of viable sampling to be performed at least every six
months as part of the recertification of facilities and equipment; and complete and
maintain documentation of initial technology training for all pharmacy technologists
and technology trainees. (See March 27, 2017 TBP Warning Notices at 1-3, attached
as Ex. F.)
As part of its inspection of Greenpark’s Houston facilities in March 2017,
TBP also noted additional failures on its Inspection Report Checklist, and advised
Greenpark to ensure that the temperature of its cleanroom was consistently 68
degrees Fahrenheit or cooler, and to ensure that antiseptic hand cleansing is
performed using waterless alcohol-based surgical scrub once inside the buffer area
prior to putting on sterile gloves. (See March 27, 2017, TBP Notice of Inspection
at 5, attached as Ex. G.)
Additionally, Greenpark was issued two Warning Notices by TBP on June 23,
2015, for several safety issues including the “failure to remove and quarantine out
of date drugs from dispensing stock until drugs can be destroyed properly,” and the
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failure to have all supervising personnel involved in compounding sterile
preparations do gloved fingertip and media-fill challenge tests. (See June 23, 2015
TBP Warning Notices at 1-2, attached as Ex. H.)
Greenpark was also issued two Warning Notices by TBP on May 1, 2014.
Amongst the warnings were one for failing “to weigh/mix chemicals in at least ISO
8 air quality” and was ordered to “[c]ease this practice now and comply,” and the
failure to indicate beyond use date (“BUD) on prescription labels. (See May 1, 2014
TBP Warning Notice at 1, attached as Ex. I.) Additionally, Greenpark was in
violation for failing to calibrate and verify the accuracy of the automated
compounding device, and was ordered to have it removed, replaced or repaired
immediately. (See Ex. I at 2.)
In its Notice of Inspection from May 1, 2014, TBP noted additional failures
on its Inspection Report Checklist, including the fact that the balance could not be
calibrated to verify accuracy during inspection, and that the law book, general
reference and handbook on injectable drugs were all outdated. (See May 1, 2014
TBP Notice of Inspection at 4, attached as Ex. J). TBP also advised Greenpark to
“[r]emove all expired/improperly labeled drugs, compounds, chemicals from the
dispensing stock,” and to “make all quantities clear on controlled substance
inventory.” Id.
On October 26, 2018, Greenpark was also the subject of a Warning Letter
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from the United States Food & Drug Administration (“FDA”). (See Oct. 26, 2018
FDA Warning Letter, attached as Ex. K.) From October 16, 2017 to October 27,
2017, an FDA investigator inspected Greenpark’s facilities in Houston and noted
serious deficiencies in their practices for producing sterile drug products, putting
patients at risk. (See id. at 2.)
The FDA investigator noted that drug products intended or expected to be
sterile were prepared, packed, or held under insanitary conditions, whereby they may
have become contaminated with filth or rendered injurious to health, causing
Greenpark’s drug products to be adultered according to statute. Id. at 2 (citing FDCA
§ 501(a)(2)(A); 21 U.S.C § 351(a)(2)(A).)
Specifically, the FDA investigator noted problems with sterility such as
“personnel were engaged in aseptic processing” had “partially exposed skin and
wearing non-sterile garb,” “personnel were observed re-sanitizing gloved hands with
non-sterile [redacted] before resuming aseptic processing,” and “wipes used for
disinfecting” sterile preparation areas “were not sterile.” (Ex. K at 2.)
D.

Improperly compounded pentobarbital creates a variety of
significant health risks.

Substandard compounded pentobarbital has a risk of forming visible, solid
precipitate. Visible chemical precipitates, when injected into the vasculature, can
travel rapidly through the heart and into the pulmonary capillary vasculature. Given
the size of the particles, they could occlude these capillaries and lead to rupture and
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hemorrhage of blood into the lungs. This is clinically referred to as pulmonary
embolus and pulmonary hemorrhage. A person experiencing this condition is
substantially likely to feel exceptional physical pain. (Report of James H. Ruble
R.Ph., Pharm.D., J.D., at 6, Whitaker v. Livingston, No. 4:13-cv-02901 (S.D. Tex.
Aug. 26, 2015), ECF No. 93-1, at , attached at Ex. L (citing Gupta, VD, Stability of
pentobarbital sodium after reconstitution in 0.09% sodium chloride injection and
repackaging in glass and polypropylene syringes, Int. J. Pharm. Comp. 2001, 5(6):
482-4).)
Additionally, impurities or particulates in the injectable solution would lead
to extreme venous irritation. Chemical imbalances in compounded pentobarbital
leading to pH levels outside human blood parameters would also cause extreme pain
upon injection. Moreover, the administration of sub-potent drugs, such as those used
after their BUDs could also prolong the procedure and lead to suffering at the time
of an execution. Id.
TDCJ refuses to disclose information regarding the provenance of the
pentobarbital it uses to execute people, and plans to use to execute Garcia. TDCJ has
gone to great lengths to keep information about the source of its execution drugs a
secret. Jolie McCullough, After loss at state Supreme Court, Texas keeps fighting to

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conceal its execution drug supplier, Texas Trib., (Jul. 23, 2018).13 The source of
Texas’s pentobarbital has only come to light recently, due to a news outlet
investigation (See Ex. C.)
Given that compounding pharmacies are not subject to the same stringent
standards as large pharmaceutical manufacturers, the shorter shelf life and higher
failure rate of compounded drugs, and the known pain experienced by multiple
people recently executed in Texas (Ex. C), attorneys representing prisoners on death
row in Texas have sought to determine the provenance of the drugs the State uses to
execute people, see, e.g., Second Am. Compl., Whitaker v. Livingston, CV No. H13-2901, at 6-7 (S.D. Tex. Sept. 11, 2015), ECF 109. However, the State has refused
to disclose this information, as well as other information about the pentobarbital it
uses. Keri Blakinger, As lethal injection lawsuit continues, Texas replenishes
execution drug supplies, Houston Chronicle (Aug. 18, 2018).14
As a result, prisoners, including Garcia, have been unable to obtain
information regarding the quality (or lack thereof) of the drugs being used to execute
them, and the serious constitutional risks they pose. This refusal prevents Garcia
from discovering that the source of the drug, which he believes to be Greenpark, has

Available at https://www.texastribune.org/2018/07/23/texas-supreme-courtexecution-drug-rehearing/.
14
Available at http://www.houstonchronicle.com/news/houston-texas/article/Aslethal-injection-lawsuit-continues-Texas-11943467.php.
13

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committed a host of safety violations and as a result, is on probation, as discussed
above. Defendants have prevented Garcia from determining whether the drug it uses
are degraded or contaminated, which would cause intolerable pain. The lack of
transparency has impeded Garcia’s ability to exercise his constitutional right not to
be put to death by in a manner that has a substantial risk of serious harm.
The integrity, potency, and sterility of compounded pentobarbital are affected
by: the quality of the “Active Pharmaceutical Ingredient” (API) used to make the
drug; the quality of the compounder and the conditions of the laboratory in which
the drug is compounded; the time between compounding and use; the assigned BUD
and the qualifications of the person assigning same; and the conditions under which
the drug is stored after compounding.
Given the nature of compounded pentobarbital, its source—and the safety
standards of that source—is essential information. Compounded pentobarbital is
classified as a high-risk sterile injectable. See United States Pharmacopeia (“USP”)
General Chapter <797>, Pharmaceutical Compounding – Sterile Preparations.
Compounded preparations are assigned a BUD intended to prevent degradation of a
compound that the USP has calculated is likely to occur after a set timeframe. Absent
extended sterility testing, USP <797> sets the BUD for high-risk compounded sterile
preparations at a short timeframe.

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E.

Texas has a history of obtaining execution drugs from illicit and
unsafe sources.

Past actions on the part of Texas and its supplier have raised concerns about
the sanitation practices of the source of Texas’s pentobarbital. For example, Texas
had eight doses of pentobarbital that were set to expire on July 20, 2017. State logs
list eight doses received that day as “return from supplier” and set to expire a year
out, July 20, 2018. See Keri Blakinger, As lethal injection lawsuit continues, Texas
replenishes execution drug supplies, Houston Chronicle (Aug. 18, 2018).15 TDCJ’s
spokeperson would not clarify whether those were new drugs, or merely a new
expiration date. Id.
Additionally, a series of public information requests have revealed that the
drugs that Texas uses to execute people do not meet safety and sanitation regulations.
USP <797> says that compounded injectible sterile preparations (CSPs) should
maintain their labeled strength within monograph limits, and the monograph for
pentobarbital allows for 2% standard deviation, meaning, that pentobarbital has to
be between 98% and 102%. (See Pentobarbital monograph at 1, attached as Ex. M.)
Public records produced by TDCJ have revealed that the pentobarbital used by Texas
to execute people often fell outside this range, including 109%, 103%, 94.6%, and
97%. (See TDCJ Lab Reports, attached as Ex. N.)

15

Available at http://www.houstonchronicle.com/news/houston-texas/article/Aslethal-injection-lawsuit-continues-Texas-11943467.php.
16

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Texas has a history of obtaining execution drugs from unreliable and likely
dangerous sources. In 2015, the FDA seized an imported shipment of execution
drugs that TDCJ purchased because the drugs were not approved for human use and
were misbranded. Mike Tolson, FDA will not give seized execution drugs back to
Texas, Houston Chron. (Apr. 21, 2017).16
Moreover, once Defendants obtain their drugs, they often fail to use them
according to their execution protocol. Defendants’ protocol requires the use of “100
milliliters of solution containing 5 grams of Pentobarbital,” which translates to a
solution concentration of 50mg/mL. (See Ex. A at 8.)
Despite this requirement, Defendants have used two different concentrations
of pentobarbital in its executions over the past several years. (See Huntsville Unit
Storage Inventory for Pentobarbital, attached as Ex. O.) TDCJ’s own logs reveal
that in some executions, e.g., Christopher Young’s on July 17, 2018, Defendants
used the correct concentration, but in others, such as those of Erick Davila on April
25, 2018, and Juan Castillo on May 16, 2018, Defendants used a solution of
pentobarbital at a concentration of 100 mg/mL, in violation of the protocol. (See Ex.
O.) The logs contain no explanation of why the 100 mg/mL was chosen for certain
executions. (See id.)

Available at https://www.houstonchronicle.com/news/houston-texas/houston/
article/FDA-will-not-give-seized-execution-drugs-back-to-11090050.php.
16

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And in addition to Defendants’ inconsistent approaches to dosage strengths of
the drugs, Defendants also have a haphazard approach to attempting to ensure the
safety of its pentobarbital. For example, Defendants agreed to test the compounded
pentobarbital intended for use in the executions of Thomas Whitaker and Perry
Williams for potency, purity and sterility shortly before those executions. Whitaker
v. Livingston, No. H-13-2901, 2016 WL 3199532, at *3 (S.D. Tex. June 6, 2016).
But TDCJ has refused to do the same testing shortly before the executions of other
condemned prisoners, including Garcia.
II.

This Court should grant Garcia a preliminary injunction because he
meets the four requirements necessary to secure a preliminary
injunction.
Garcia seeks a preliminary injunction barring the Defendants from executing

him with supplies of pentobarbital obtained from an unsafe compounding pharmacy.
See Fed. R. Civ. Proc. 65. The purpose of a preliminary injunction is to preserve the
status quo until the rights of the parties can be fully and fairly litigated. Janvey v.
Alguire, 647 F.3d 585, 600 (5th Cir. 2011) (“We have previously stated that where
a district court has determined that a meaningful decision on the merits would be
impossible without an injunction, the district court may maintain the status quo and
issue a preliminary injunction to protect a remedy . . . .”).
A plaintiff may secure a preliminary injunction when he can show:
(1) a substantial likelihood of success on the merits, (2) a
substantial threat of irreparable injury if the injunction is
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not issued, (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.
Alguire, 647 F.3d at 595; see also Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008).
For the reasons outlined below, Garcia is able to show: a likelihood of success
on the merits of his four claims; that he faces a substantial threat of irreparable injury
(death) in the absence of an injunction; that the threatened injury in the absence of
an injunction outweighs the harm of preventing an execution for a time sufficient to
allow Defendants to obtain a constitutionally appropriate supply of pentobarbital;
and that the grant of an injunction would serve the public interest by allowing
Defendants the time to comply with the Constitution. Alguire, 647 F.3d at 595.
A.

Garcia can show a substantial likelihood of success on the merits
on his claims.

In order to evaluate the likelihood that Garcia will succeed on the merits of
his claims, the Court looks to “‘standards provided by the substantive law.’” Alguire,
647 F.3d at 596 (quoting Roho, Inc. v. Marquis, 902 F.2d 356, 358 (5th Cir. 1990).
Garcia “must present a prima facie case but need not show that he is certain to win.”
Alguire, 647 F.3d at 596 (internal quotations omitted).
The substantive law at issue here relate to the First, Eighth, and Fourteenth
Amendments to the Constitution. The First Amendment is implicated because
Defendants fail to provide him with information relating to his execution, thus
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preventing him from exercising his First Amendment rights to speech, as well as his
right to petition the government for redress. The Eighth Amendment is implicated
because Garcia alleges that Defendants will execute him in a manner that violates
his right to be free from cruel and unusual punishment, and that they will do so with
deliberate indifference to the risk of a cruel and unusual execution. The Fourteenth
Amendment is implicated because Garcia alleges that Defendants violate his dueprocess rights to notice and an opportunity to be heard, and that Defendants violate
his right to Equal Protection.
1.

Claim One: Defendants’ use of compounded pentobarbital
from a pharmacy that has a history of compounding unsafe
drugs demonstrates deliberate indifference. This
indifference violates Garcia’s right to be free from cruel and
unusual punishment.

The Eighth Amendment prohibits the unnecessary and wanton infliction of
pain. Gregg v. Georgia, 428 U.S. 153, 173 (1976). Specifically, it forbids the
infliction of unnecessary pain in the execution of a death sentence. In re Kemmler,
136 U.S. 436, 447 (1890). A condemned prisoner is entitled to a humane death that
does not cause “needless suffering,” prolonged lingering, or deliberate infliction of
pain. See Farmer v. Brennan, 511 U.S. 825, 846 & n.9 (1994); id. (defining
“deliberate indifference” as “requiring a showing that the official was subjectively
aware of the risk”). A condemned person cannot be subjected to a method of
execution that is “sure or very likely to cause serious illness and needless suffering.”
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Glossip v. Gross, 135 S. Ct. 2726, 2737 (2015) (quoting Baze, v. Rees, 553 U.S. 35,
50 (2008)).
Here, Garcia is likely to succeed on the merits of showing that Defendants are
deliberately indifferent to the suffering that he will be subjected to if they use
compounded pentobarbital from a pharmacy that has a history of significant safety
violations, see Section I.C, supra, the State of Texas has repeatedly sanctioned
Greenpark.
Defendants through secrecy and refusing to answer Garcia’s (and other
condemned prisoners’) requests for information (see Ex. D) have thereby prohibited
Garcia from investigating the pharmacy, steps that TDCJ should have undertook
before hiring a pharmacy to provide a drug that Defendants claimed would not create
unconstitutional executions.17
As also explained in Section I.D., supra, the risk of harm from using
substandard compounded pentobarbital includes the risk of forming visible, solid
precipitate. These precipitates can travel rapidly through the heart and into the

Defendants work closely with their chosen pharmacists, to the point of promising
them that TDCJ will keep information of the pharmacies’ participation “on the down
low.” (See Aff. of Jasper Lovoi, RPh., Schad v. Brewer, No. 2:13-cv-02001-ROS (D.
Ariz. Oct. 4, 2013), ECF 21-1 attached as Ex. P (explaining that “[b]ased on the
phone calls I had with Erica Minor of TDCJ regarding its request for these drugs,
including statements that she made to me, it was my belief that this information
would be kept on the ‘down low’ and that it was unlikely that it would be discovered
that my pharmacy provided these drugs.”).)
17

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pulmonary capillary vasculature. Given the size of the particles, they could occlude
these capillaries and lead to rupture and hemorrhage of blood into the lungs.
Defendants’ failure to guard against these and other harms, the risks of which
are caused by Defendants’ deliberate indifference to the risks posed by their drug
supplier, creates “a ‘substantial risk of serious harm,’ an ‘objectively intolerable risk
of harm’ that prevents prison officials from pleading that they were ‘subjectively
blameless for purposes of the Eighth Amendment.’” Baze v. Rees, 553 U.S. 35, 50
(2008) (quoting Farmer v. Brennan, 511 U.S. 825, 842, 846, and n.9 (1994)).
Accordingly, Garcia can demonstrate a likelihood of success on the merits of
his claim that Defendants act in a deliberately indifferent manner to the risk of the
use compounded pentobarbital obtained from an unsafe pharmacy, and that
consequently, there is a substantial and unnecessary risk of serious harm, in violation
of the Eighth Amendment.
2.

Claim Two: By deliberately concealing necessary
information from Garcia, Defendants have violated Garcia’s
First Amendment right to be informed about the manner in
which the State implements the most serious penalty
available in the criminal-justice system.

“The First Amendment serves to ensure that the individual citizen can
effectively participate in and contribute to our republican form of self-government.”
Globe Newspaper v. Super. Ct., 457 U.S. 596, 604-05 (1982).
Garcia is an “individual citizen” with a First Amendment right of access to
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governmental proceedings. In order for him to participate effectively, he must be
permitted his First Amendment right of access to governmental proceedings. This
right of access arises from the “common understanding that ‘a major purpose of [the
First] Amendment was to protect the free discussion of governmental affairs.’”
Globe Newspaper, 457 U.S. at 604 (quoting Mills v. Alabama, 384 U.S. 214, 218
(1966). His rights as an individual citizen are not diminished by the fact that he is a
prisoner; prisoners retain their First Amendment rights absent deprivation
procedures that meet due-process requirements. See, e.g., Pell v. Procunier, 417 U.S.
817, 822 (1974) (recognizing that a prisoner “retains those First Amendment rights
that are not inconsistent with his status as a prisoner or with the legitimate
penological objectives of the corrections system”); Pell, 417 U.S. at 837 (Douglas,
Brennan, Marshall, JJ., dissenting) (“‘[F]oremost among the Bill of Rights of
prisoners in this country, whether under state or federal detention, is the First
Amendment. Prisoners are still ‘persons’ entitled to all constitutional rights unless
their liberty has been constitutionally curtailed by procedures that satisfy all the
requirements of due process.”) (citing Procunier v. Martinez, 416 U.S. 396, 428-429
(Douglas, J., concurring) (overruled by Thornburgh v. Abbott, 490 U.S. 401 (1989)).
No such procedures have occurred in this case; accordingly, Garcia retains his First
Amendment rights.
Defendants, however, violate those rights by failing to provide the
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information he has requested. Through this course of action, Defendants prevent
Garcia from participating in a robust discussion about the methods by which the
State obtains the implements by which it carries out its judicial sentences. See Press–
Enter. Co. v. Super. Ct., 478 U.S. 1, 7 (1986) (“‘People in an open society do not
demand infallibility from their institutions, but it is difficult for them to accept what
they are prohibited from observing.’”) (quoting Richmond Newspapers Inc. v.
Virginia, 448 U.S. 555, 575 (1980)).
Defendants’ secrecy also deprives Garcia of his First Amendment right to
petition the government for redress of grievances. “The First Amendment is thus
broad enough to encompass those rights that, while not unambiguously enumerated
in the very terms of the Amendment, are nonetheless necessary to the enjoyment of
other First Amendment rights.” Globe Newspaper, 457 U.S. at 604; cf. Pell, 417
U.S. at 829 n.6 (holding that prison restrictions did not unconstitutionally burden
prisoners’ First Amendment rights to petition the government for redress of
grievances because prison accorded “alternative means of communication with the
press”). Here, Defendants’ intentional concealment of the information he requests
deprives him of the means necessary to petition the government for redress.
For these reasons, Garcia has shown a likelihood of success on, the merits of
Claim Two.

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3.

Claim Three: Defendants’ deliberate actions in hiding
information regarding the source of the pentobarbital that
they intend to use to execute Garcia denies him of his federal
rights to due process and meaningful access to the court, in
violation of the Fourteenth Amendment.

The Fourteenth Amendment prohibits a state from depriving “any person of
life, liberty, or property, without due process of law.” U.S. Const. amend XIV. 214.
“The fundamental requisite of due process of law is the opportunity to be heard.”
Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (citations
omitted). Consistent with the opportunity to be heard is the “constitutional right of
access to the courts.” See Bounds v. Smith, 430 U.S. 817, 821 (1977). The “right of
access to the courts . . . is founded in the Due Process Clause.” Wolff v. McDonnell,
418 U.S. 539, 579 (1974).
Garcia has a liberty interest in assuring that his execution is carried out in a
manner consistent with the Eighth Amendment. Defendants cannot hide information
that Garcia has a constitutional right to obtain. See Claim Two, supra. By denying
his legitimate and reasonable request for information regarding the drug to be used
in his execution, Defendants have actively prevented Garcia from being able to
determine the ways in which Defendants will violate his Eighth Amendment right to
be free from cruel and unusual punishment during his execution.
Under Baze v. Rees, an execution will violate the constitution where a prisoner
can show that there is “a ‘substantial risk of serious harm,’ an ‘objectively intolerable
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risk of harm’ that prevents prison officials from pleading that they were ‘subjectively
blameless for purposes of the Eighth Amendment.’” 553 U.S. 35, 50 (2008) (quoting
Farmer v. Brennan, 511 U.S. 825, 842, 846, and n.9 (1994)).

“[S]ubjecting

individuals to a risk of future harm—not simply actually inflicting pain—can qualify
as cruel and unusual punishment.” Baze, 553 U.S. at 49. Garcia recognizes that his
burden under the Baze standard is high.
But Defendants’ failure to provide Garcia with the requested information
regarding the drug TDCJ intends to use in his scheduled execution has created an
insurmountable barrier to filing and successfully prosecuting an Eighth Amendment
claim.

“[W]here governmental action seriously injures an individual, and the

reasonableness of the action depends on fact findings, the evidence used to prove the
Government’s case must be disclosed to the individual so that he has an opportunity
to show that it is untrue.” Greene v. McElroy, 360 U.S. 474, 496 (1959).
The information that Defendants have refused to disclose is critical to an
assessment of the ways in which Garcia’s execution will violate his constitutional
rights. That refusal is at odds with the “the concepts of dignity, civilized standards,
humanity, and decency that animate the Eighth Amendment.” Hudson v. McMillian,
503 U.S. 1, 11 (1992) (quoting Estelle v. Gamble, 429 U.S. 97, 102 (1976)) (internal
quotation marks omitted). By deliberately concealing such information from Garcia,
Defendants have actively prevented him from successfully vindicating his Eighth
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Amendment rights. Therefore, Defendants’ actions have violated Garcia’s rights to
due process and access to the courts.
For these reasons, Garcia has shown a likelihood of success on the merits of
Claim Three.
4.

Claim Four: Defendants’ actions violate Garcia’s right to
Equal Protection under the law, pursuant to the Fourteenth
Amendment.

Under the Equal Protection Clause, the government cannot make distinctions,
which either burden a fundamental right, target a suspect class, or intentionally treat
one person differently from others similarly situated without any rational basis for
the difference. See Vacco v. Quill, 521 U.S. 793, 799 (1997); Village of Willowbrook
v. Olech, 528 U.S. 562, 564 (2000) (per curiam).
The fundamental rights are those rights from the Bill of Rights incorporated
into the Fourteenth Amendment Due Process Clause, which includes the Eighth
Amendment protection against cruel and unusual punishment. McDonald v.
Chicago, 561 U.S. 742, 764 n.12 (2010). When the disparate treatment burdens a
fundamental right, strict scrutiny applies. San Antonio Indep. Sch. Dist. v. Rodriguez,
411 U.S. 1 (1973).
Here, Defendants’ failure to test the pentobarbital compounded for Garcia’s
execution and provide him with the results, is, given their testing of previous
supplies, Whitaker v. Livingston, No. H-13-2901, 2016 WL 3199532, at *3 (S.D.
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Tex. June 6, 2016), disparate treatment that burdens Garcia’s fundamental Eighth
and Fourteenth Amendment rights, putting him at substantial risk for serious harm.
The failure to test also has no rational basis, since Defendants have shown such
testing can readily and easily be performed. Id.
Here, Defendants have no rational basis for using pentobarbital compounded
by Greenpark—as opposed other pharmacies—in Garcia’s execution. Defendants’
use of pentobarbital compounded by Greenpark to execute Garcia constitutes
disparate treatment and subjects Garcia to substantial risk of serious harm.
Similarly, Defendants’ deviation from the dose of pentobarbital required by
Defendants’ execution procedure, see Section I.E, supra, violates the Due Process
and Equal Protection Clauses of the Fourteenth Amendment. Those clauses protect
a prisoner’s right to a state’s consistent and non-arbitrary application of and
adherence to its own announced procedures where those procedures concern a
fundamental interest. See, e.g., Dist. Attorney’s Office v. Osborne, 557 U.S. 52, 68
(2009); Bush v. Gore, 531 U.S. 98, 103 (2000); Ohio Adult Parole Auth. v. Woodard,
523 U.S. 272 (1998).
For these reasons, Garcia has shown a likelihood of success on the merits of
Claim Four.
B.

Without a preliminary injunction, Garcia will suffer concrete,
irreparable harm. The harm is not “mere speculation.”

If the Court denies Garcia’s request for a preliminary injunction, he will be
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executed without having the opportunity to vindicate his constitutional rights. First,
in violation of his First Amendment rights, he will be unable to exercise his rightof-access to the courts to vindicate his Eighth Amendment right to be executed in a
manner free from cruel and unusual punishment, and he will be executed without
having had the opportunity to participate in the robust discussion about the death
penalty. Second, he will be executed in a manner that arbitrarily treats him
differently than similarly situated prisoners, in violation of his Fourteenth
Amendment rights. That harm is irreparable—there is not only “no adequate remedy
at law, such as monetary damages[,]” Alguire, 647 F.3d at 600, but there is no
remedy at all for a person whose life has been extinguished. This harm is a harm in
fact; it is more than a “speculative injury.” Alguire, 647 F.3d at 600 (noting that “a
showing of ‘[s]peculative injury is not sufficient; there must be more than an
unfounded fear on the part of the applicant.’”) (quoting Productos Carnic, S.A. v.
Cent. Amer. Beef & Seafood Trading Co., 6221 F.2d 683-686-87 (5th Cir. 1980)
(internal quotation marks and citations omitted) (alteration in original)); id. at 601
(“The party seeking a preliminary injunction must also show that the threatened
harm is more than mere speculation.”).
C.

The grant of preliminary injunction will not disserve the public
interest—indeed, the public has an interest in an execution that
comports with the Constitution.

The “balance of harms and service of the public interest[,]” Alguire, 647 F.3d at
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601, tip sharply in Garcia’s favor. Garcia is not seeking an injunction that would
forever prevent the State from carrying out his execution. Instead, he seeks only to
ensure that his execution comports with the Eighth Amendment, and that it does so
without violating his First and Fourteenth Amendment rights as well. See, e.g.,
Gomez v. U.S. Dist. Ct. for N. Dist. Cal., 966 F.2d 460, 462 (9th Cir. 1992) (Noonan,
J., dissenting from grant of writ of mandate) (“The state will get its man in the end.
In contrast, if persons are put to death in a manner that is determined to be cruel,
they suffer injury that can never be undone, and the Constitution suffers an injury
that can never be repaired.”).
This Court should not permit Defendants to execute Garcia before he has an
opportunity to litigate his constitutional claims. The balance of harms and the service
of the public interest favor this Court’s grant of a preliminary injunction preventing
Defendants from executing Garcia in an unconstitutional manner.
III.

This Court has the authority to grant a stay of execution, and should do
so. Garcia has not delayed unnecessarily in bringing his claim;
accordingly, he is entitled to a stay of his execution.
This Court has the authority to grant a prisoner a stay of execution in order

that the Court can hear a prisoner’s constitutional claims, provided that the prisoner
did not unreasonably delay before asking the Court for a stay. Garcia did not
unreasonably delay, and a stay is necessary in order to allow the Court the time to
hear his constitutional claims.
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But before granting injunctive relief that would prevent an execution, the
Court must “consider not only the likelihood of success on the merits and the relative
harms to the parties, but also the extent to which the inmate has delayed
unnecessarily in bringing the claim.” Nelson v. Campbell, 541 U.S. 637, 649 (2004).
Garcia did not delay in filing his Complaint. Until the afternoon of
Wednesday, November 28, 2018, he was unaware of the source of Texas’s
pentobarbital; he was consequently also unaware of the safety violations for which
that source has been repeatedly cited. Within two days of learning this information,
he filed this lawsuit.
Accordingly, because this Court has the authority to issue a stay, and because
Garcia has met the requirements for obtaining one, this Court should stay his
execution and allow him to litigate the claims in his Complaint.
///
///
///
///
///
///
///
///
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IV.

Conclusion
For the reasons outlined in this Memorandum, this Court should find that

Garcia has met the requirements for securing a preliminary injunction, and should
grant:
(1)

Temporary, preliminary, and permanent injunctive relief to enjoin the
defendants, their officers, agents, servants, employees, and all persons acting
in concert with them from executing Garcia with compounded Pentobarbital
from Greenpark or any other compounding pharmacy with substandard
sanitation practices cited by state or federal regulators;

(2)

A declaratory judgment that TDCJ’s current plan to execute Garcia by using
compounded pentobarbital from Greenpark violates his rights under the
Eighth Amendment of the United States Constitution, that TDCJ’s failure to
provide Garcia adequate notice regarding the acquisition of the compounded
pentobarbital it intends to use in his execution violates his rights under the
Due Process clause of the Fourteenth Amendment, the Equal Protection
Clause of the Fourteenth Amendment, and the First Amendment, that that the
State’s failure to provide Garcia with the equal treatment under the law
violates the Equal Protection Clause of the Fourteenth Amendment, and that
TDCJ’s administration of compounded pentobarbital from Greenpark
demonstrates deliberate indifference to Garcia’s right to be free from cruel
and unusual punishment;

(3)

Temporary, preliminary, and permanent injunctive relief to enjoin the
Defendants, their officers, agents, servants, employees, and all persons acting
in concert with them from concealing information that is not related to the
identification of persons participating in execution, that is necessary to
ensuring Garcia’s Eighth Amendment right to be free from cruel and unusual
punishment, Fourteenth Amendment right to equal protection of the laws,
First Amendment rights to petition the government for redress of grievances
and to access government proceedings, and his Fourteenth Amendment right
to due process;

(4)

A stay of Garcia’s execution;

(5)

Appropriate and necessary discovery and an evidentiary hearing to allow
Garcia to prove his constitutional claims;

(6)

Costs of the suit; and
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(7)

Any such other relief as the Court deems necessary and proper.
Respectfully submitted this 30th day of November, 2018.
Jon M. Sands
Federal Public Defender
District of Arizona
Dale A. Baich
Jessica L. Felker
s/ Jessica L. Felker
Attorney-in-charge
IL Bar No. 6296357
Pending Pro Hac Vice Application
850 West Adams St., Suite 201
Phoenix, AZ 85007
(602) 382-2816
Jessica_Felker@fd.org

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CERTIFICATE OF SERVICE
I certify that on November 30, 2018 a true and correct copy of the above
pleading was served upon Mr. Clendenin as he has agreed to accept electronic
service on behalf of all Defendants.
Bryan Collier, Executive Director
Lorie Davis, Director
James L. Jones, Senior Warden
c/o Jay Clendenin
Assistant Attorney General
Criminal Appeals Division
Office of the Attorney General of Texas
Phone: (512) 463-1416
Fax: (512) 320-8132
Jay.Clendenin@oag.texas.gov

/s/ Jessica Ward
Assistant Paralegal

34