Whether the State of Texas impeded a condemned prisoner from succeeding on an Eighth Amendment challenge by refusing to provide readily available information needed to prove the claim

QUESTIONS PRESENTED FOR REVIEW News broke on November 28, 2018, that Texas has been obtaining its execution drug, pentobarbital, from a compounding pharmacy with a litany of safety violations. Several hours later, counsel for Petitioner Joseph Garcia sent a letter to state officials requesting, inter alia, the following important safety information about the pentobarbital to be used in Garcia’s execution: the source, the date and means of preparation, chain-of-custody, and the method of storage. Having received no response to his request, Garcia then moved to enjoin the State from executing him with the pentobarbital from the compounding pharmacy. He made the request based on information that had only just been publicly reported: that the pharmacy had a significant record of safety violations and it had provided compounded drugs to the Texas Department of Criminal Justice while its license was under probation for safety violations. Garcia alleged a “substantial risk of serious harm” in violation of the Eighth Amendment from the use of pentobarbital compounded by this pharmacy and proffered that the State could execute him using the same procedure, but with pentobarbital compounded by one of the nearly 200 sterile compounding pharmacies licensed in Texas that were not on probation at the time the drug would be compounded. Garcia also alleged that his right to access the courts or redress government grievances was violated by the State’s failure to provide the critical information he requested. 1 On December 2, 2018, the State provided some information about the pentobarbital to be used in Garcia’s execution, such as the amount in stock and the purchase price, but did not provide any of the requested information that would address the safety and effectiveness of the drug. Nonetheless, Garcia’s Eighth Amendment claim was denied on the basis that he failed to provide enough proof of a risk of harm and that he did not name a specific alternate pharmacy to compound the pentobarbital for his execution. In turn, his access-to-courts claim was denied because he did not show he could prevail on his Eighth Amendment claim. The Fifth Circuit’s affirmance of the denial of the motion raises these important federal questions: 1. Whether the denial of the motion for preliminary injunction was improper where the State of Texas impeded a condemned prisoner from succeeding on an Eighth Amendment challenge to the State’s use of an execution drug from a specific source, known to have safety violations, by refusing to provide the prisoner with readily available information the prisoner needed to prove his claim. 2. Where the petitioner does not challenge the method of execution or any part of the execution procedure used by the State, but rather seeks to prevent the use of an execution drug from one, specific supplier known to have a litany of safety violations, must the petitioner plead “a known and available alternative method of execution,” pursuant to Glossip v. Gross, 135 S. Ct. 2726, 2731 (2015)? i