Jackson v. Danberg

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 11-9002

______

ROBERT W. JACKSON, III

v.

CARL C. DANBERG, Commissioner,

Delaware Department of Correction;

THOMAS L. CARROLL,

Warden Delaware Correctional Center;

PAUL HOWARD,

Bureau Chief Delaware Bureau of Prisons;

OTHER UNKNOWN STATE ACTORS

RESPONSIBLE FOR AND PARTICIPATING IN

THE CARRYING OUT OF PLAINTIFF'S EXECUTION

Robert W. Jackson, III, individually and

on behalf of the Certified Class,

Appellant

______

On Appeal from the United States District Court

for the District of Delaware

(D.C. No. 1-06-cv-00300)

District Judge: Honorable Sue L. Robinson

______

Argued July 28, 2011

Before: AMBRO, FISHER and

HARDIMAN, Circuit Judges.

(Filed: September 7, 2011 )

Helen A. Marino, Esq.

Maria K. Pulzetti, Esq.

Michael Wiseman, Esq. (Argued)

Defender Association of Philadelphia

Federal Capital Habeas Corpus Unit

The Curtis Center, Suite 545 West

Independence Square West

Philadelphia, PA 19106

Counsel for Appellant

Elizabeth R. McFarlan, Esq.

Marc P. Niedzielski, Esq.

Gregory E. Smith, Esq.

Paul R. Wallace, Esq (Argued)

Morgan Zurn, Esq.

State of Delaware

Department of Justice

820 North French Street

Carvel Office Building, 6th Floor

Wilmington, DE 19801

Counsel for Appellees

2

______

OPINION OF THE COURT

______

FISHER, Circuit Judge.

A class of inmates sentenced to death by the State of

Delaware and named plaintiff Robert W. Jackson, III

(collectively referred to in this opinion as “Plaintiffs”), appeal

from the District Court’s denial of their motion to reopen and

their motion for a stay of Jackson’s execution. After careful

review, we conclude that the District Court did not abuse its

discretion, and, accordingly, we affirm.

I.

A. Facts

This is our second encounter with a 42 U.S.C. § 1983

challenge related to Delaware’s lethal injection protocol.

Much of the background factual information in this case is the

same as we recounted in Jackson v. Danberg, 594 F.3d 210

(3d Cir. 2010) (“Jackson I”), and so we only will briefly

outline that background material before setting forth in more

detail those facts essential to the resolution of this appeal.

Delaware law provides that:

[p]unishment of death shall, in all cases, be

inflicted by intravenous injection of a substance

or substances in a lethal quantity sufficient to

3

cause death and until such person sentenced to

death is dead, and such execution procedure

shall be determined and supervised by the

Commissioner of the Department of Correction.

DEL. CODE ANN. tit. 11, § 4209(f) (2006 Supp.). The

statute does not mandate the use of any particular drug or

series of drugs.

On August 29, 2008, the Delaware Department of

Correction (“DDOC”) instituted a new lethal injection

protocol (“2008 Protocol”). The protocol calls for the

sequential intravenous (“IV”) injection of three chemicals

into an inmate’s bloodstream. The first chemical is sodium

thiopental, which renders an inmate unconscious. The second

chemical is pancuronium bromide, a muscle relaxant that acts

as a paralytic agent. The third and final chemical is

potassium chloride, which induces cardiac arrest and causes

the inmate’s death. The 2008 Protocol also calls for the IV

team, consisting of two people who may have at least one

year of professional experience, 1 to examine the inmate to

ensure he is unconscious before the pancuronium bromide is

administered. The consciousness check requires the warden

to call the inmate’s name out loud to observe any reaction

from the inmate. At the same time, a member of the IV team

assesses the inmate’s consciousness by touching the inmate,

shaking his shoulder, and brushing his eyelashes. If the

1

Those specialists include a certified medical assistant,

a phlebotomist, an emergency medical technician, a

paramedic, and a military corpsman.

4

inmate is not unconscious, the protocol requires the execution

team to repeat the administration of the first chemical and

subsequent consciousness checks until the inmate is deemed

unconscious.

Delaware amended its protocol on May 5, 2011. The

amended protocol, which is before us today, includes only

one significant difference. Due to a nationwide shortage of

sodium thiopental, Delaware, along with a number of other

states, revised its protocol to allow for the use of an

alternative barbiturate, pentobarbital, as the first chemical to

be administered.

B. Procedural History

Jackson, a Delaware state inmate convicted of first

degree murder and sentenced to death by the State of

Delaware, commenced this action on May 8, 2006. He filed a

section 1983 action 2 alleging that the State of Delaware’s

2

42 U.S.C. § 1983 provides, in pertinent part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen

of the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured[.]

5

then-existing method of lethal injection created an

unconstitutional risk of pain and suffering, cognizable under

the Eighth and Fourteenth Amendments of the United States

Constitution. 3 The District Court certified a class under Fed.

R. Civ. P. 23(b) consisting of all Delaware death row inmates

and appointed class counsel. See Jackson v. Danberg, 240

F.R.D. 145 (D. Del. 2007).

During the course of litigation in the District Court,

Defendants amended their lethal injection protocol twice.

Ultimately, the 2008 Protocol was enacted in an effort to

incorporate the safeguards described by the Supreme Court in

Baze v. Rees, 553 U.S. 35 (2008), which upheld Kentucky’s

lethal injection protocol against a challenge under the Eighth

Amendment. Upon adoption of the 2008 Protocol and at the

direction of the District Court, Defendants moved for

summary judgment. They argued that the 2008 Protocol fully

complied with the mandate of Baze and that the lethal

injection protocol, including the use of sodium thiopental, did

not constitute cruel and unusual punishment. The District

Court acknowledged that the DDOC had failed to follow its

own procedures in certain executions but held that Plaintiffs

3

Jackson named the following defendants in his

complaint: Stanley W. Taylor, Jr., Commissioner, Delaware

Department of Correction; Thomas L. Carroll, Warden,

Delaware Correctional Center; Paul Howard, Bureau Chief,

Delaware Bureau of Prisons; and other unknown Delaware

officials (collectively, “Defendants”). In February 2007, the

District Court substituted Taylor with his successor, Carl C.

Danberg.

6

had not shown a “substantial risk of an inadequate dose of

sodium thiopental.” Jackson v. Danberg, 601 F. Supp. 2d

589, 599 (D. Del. 2009). The District Court granted summary

judgment to Defendants and stayed executions pending

appeal. Id.

Plaintiffs appealed, and Defendants cross-appealed the

stay of executions. We affirmed the grant of summary

judgment, applying Baze to our analysis. Jackson I, 594 F.3d

210. We held that to prevail on a claim that a risk of future

harm runs afoul of the Constitution, an inmate must

demonstrate that “the conditions presenting the risk must be

‘sure or very likely to cause serious illness and needless

suffering,’ and give rise to ‘sufficiently imminent dangers.’”

Id. at 216 (quoting Baze, 553 U.S. at 50). We noted that “the

proper administration of sodium thiopental is an

indispensable link in the lethal injection chain for Eighth

Amendment purposes, as it ensures that an inmate will not

suffer under the effects of the second two drugs.” Id. at 225.

In other words, although “[r]easonable people of good faith

disagree on the morality and efficacy of capital punishment,”

Delaware’s 2008 Protocol is not unconstitutional under

existing Supreme Court precedent. Id. at 230 (quoting Baze,

553 U.S. at 61). The Supreme Court denied certiorari on

October 12, 2010. Jackson v. Danberg, 131 S. Ct. 458

(2010).

Shortly after Delaware changed its protocol to include

pentobarbital as an alternative to sodium thiopental in May

2011, Plaintiffs filed a motion to reopen under Fed. R. Civ. P.

60(b)(6) and (d) and a motion to stay Jackson’s execution

with the District Court. Plaintiffs argued that the substitution

7

of pentobarbital for sodium thiopental is a factual change that

undermines the foundations of the prior ruling, constituting an

exceptional circumstance under Rule 60(b)(6) and a

circumstance calling for an independent action to prevent a

miscarriage of justice under Rule 60(d). They relied on an

expert report written by David B. Waisel, M.D., in support of

their motion. Defendants, in turn, relied on an expert report

by Dr. Mark Dershwitz, an anesthesiologist with a Ph.D. in

pharmacology. The District Court denied both of Plaintiffs’

motions. It found that a stay was not warranted because

Plaintiffs had “not carried their burden to prove that they are

likely to succeed on the merits of their Eighth Amendment

claim.” Jackson v. Danberg, 2011 WL 3205453, at *3 (D.

Del. July 27, 2011). The District Court also denied Plaintiffs’

motion to reopen under both Rules 60(b)(6) and 60(d),

concluding that “the record at bar is insufficient to reopen the

judgment entered by [it] in 2009.” Id. at *4. Plaintiffs timely

appealed the judgment of the District Court and filed an

independent motion for a stay.

We denied the motion to stay on July 28, 2011, and

affirmed the judgment of the District Court with an opinion to

follow.4 Following our decision, the Supreme Court denied

4

The panel issued its order around 7:00 p.m. on

July 28, 2011, approximately five hours before the scheduled

time of execution.

8

certiorari, and Robert Jackson was executed just after

midnight on July 29, 2011, by lethal injection. 5

II.

The District Court had jurisdiction under 28 U.S.C.

§ 1331. We have jurisdiction pursuant to 28 U.S.C.

§ 1292(a)(1) to consider the appeal by Plaintiffs from the

District Court’s denial of injunctive relief and under 28

U.S.C. § 1291 to consider the appeal by Plaintiffs from the

District Court’s denial of relief under Fed. R. Civ. P. 60(b)

and (d). We review a district court’s denial of a stay for

abuse of discretion, which may be found where its conclusion

includes the commission of a serious error of law or a mistake

in considering the facts. Bradley v. Pittsburgh Bd. of Educ.,

910 F.2d 1172, 1175 (3d Cir. 1990). We also review a

district court’s denial of a Rule 60(b) and (d) motion to

reopen for abuse of discretion. Morris v. Horn, 187 F.3d 333,

341 (3d Cir. 1999).

III.

A. Stay

“[A] stay of execution is an equitable remedy” that “is

not available as a matter of right, and equity must be sensitive

to the State’s strong interest in enforcing its criminal

judgments without undue interference from the federal

5

We write on this issue as this appeal was filed on

behalf of a class, and it impacts appellants other than Jackson.

9

courts.” Hill v. McDonough, 547 U.S. 573, 584 (2006). The

standard for issuance of a stay is like that for issuance of a

preliminary injunction, and requires consideration of four

factors:

(1) whether the stay applicant has made a strong

showing that he is likely to succeed on the

merits; (2) whether the applicant will be

irreparably injured absent a stay; (3) whether

issuance of the stay will substantially injure the

other parties interested in the proceeding; and

(4) where the public interest lies.

Hilton v. Braunskill, 481 U.S. 770, 776 (1987); Republic of

Phil. v. Westinghouse Elec. Corp., 949 F.2d 653, 658 (3d Cir.

1991). In assessing these factors, we underscore that

“inmates seeking time to challenge the manner in which the

State plans to execute them must satisfy all of the

requirements for a stay, including a showing of a significant

possibility of success on the merits.” Hill, 547 U.S. at 584.

Plaintiffs argue that because pentobarbital is not

approved by the Food and Drug Administration (“FDA”) for

use as an anesthetic, its performance in the three-drug

protocol, namely its manner and timing of inducing

unconsciousness, is unknown and unpredictable and therefore

violative of the Eighth Amendment. In support of their

argument that pentobarbital renders the lethal injection

protocol unconstitutional, Plaintiffs proffer the following

evidence: (1) the opinion of Dr. David Waisel, an

anesthesiologist at Harvard Law School, who, among other

things, has reviewed eyewitness accounts and has concluded

10

that Alabama prisoner Eddie Powell and Georgia prisoner

Roy Blankenship were inadequately anesthetized by

pentobarbital and suffered greatly from their executions;

(2) the fact that pentobarbital is not approved by the FDA for

use as an anesthetic; and (3) the fact that pentobarbital is less

lipid-soluble than sodium thiopental and therefore does not

cross the blood-brain barrier as quickly.

Plaintiffs’ challenge to the DDOC’s substitution of

pentobarbital for sodium thiopental is governed by the

Supreme Court’s splintered decision in Baze. In Baze, the

Supreme Court recognized “that subjecting individuals to a

risk of future harm − not simply actually inflicting pain − can

qualify as cruel and unusual punishment.” 553 U.S. at 49.

However, to constitute a violation of the Eighth Amendment,

“the conditions presenting the risk must be ‘sure or very

likely to cause serious illness and needless suffering,’ and

give rise to ‘sufficiently imminent dangers.’” Id. at 50

(quoting Helling, 509 U.S. at 34-35). “Simply because an

execution method may result in pain, either by accident or as

an inescapable consequence of death, does not establish the

sort of ‘objectively intolerable risk of harm’ that qualifies as

cruel and unusual.” Id. Rather, a stay of execution may only

be granted where “the condemned prisoner establishes that

the State’s lethal injection protocol creates a demonstrated

risk of severe pain . . . [and] that the risk is substantial when

compared to the known and available alternatives.” Id. at 61.

The District Court, applying the Baze principles,

concluded that Plaintiffs failed to demonstrate that the

substitution of pentobarbital resulted in a constitutionally

unacceptable risk of pain and suffering. It noted that

11

Delaware’s protocol calls for the administration of five grams

of pentobarbital, which on its own is a lethal dose according

to Dr. Dershwitz. Moreover, the Delaware protocol calls for

a consciousness check after two minutes have lapsed,

followed by the administration of a second dose of

pentobarbital if the inmate is still conscious after two

minutes. Based upon these factual findings and procedural

safeguards, the District Court concluded that Plaintiffs had

not presented “affirmative evidence . . . that the

administration of pentobarbital as the first drug in Delaware’s

three-drug protocol creates a demonstrated risk of severe

pain, as required by the Supreme Court.” Jackson, 2011 WL

3205453, at *3. In other words, the District Court concluded

that Plaintiffs failed to demonstrate a likelihood of success on

the merits and accordingly denied the stay.

After conducting our own searching review of the

record, we conclude that the District Court did not abuse its

discretion in denying Plaintiffs’ motion for a stay. The

District Court’s factual findings are supported by the

testimony of Defendants’ expert, Dr. Dershwitz. The purpose

of the anesthetic in Delaware’s lethal injection protocol is to

render the inmate unconscious before administration of the

12

second and third drugs, and there is no affirmative evidence

that pentobarbital fails to do this. 6

6

Jackson urges us to consider Georgia’s execution of

Roy Blankenship and Alabama’s execution of Eddie Powell

as affirmative evidence that pentobarbital fails to properly

anesthetize inmates. Dr. Waisel, who formulated his opinion

based on witnesses’ accounts of the execution and some

movement by the inmates during the initial three minutes at

the start of the execution process, expressed concern that

Blankenship and Powell were insufficiently anesthetized.

Witnesses described these executions in contradictory ways.

For example:

To some, Blankenship was just looking up and

watching what was occurring, looked at his left

arm (which had an IV saline drip) and then 30

to 60 seconds later looked toward his right arm

where the administration of the pentobarbital

was starting. To others, Blankenship appeared

to grimace, or have a startled face, or jerked his

arm twice, or had his mouth open and tried to

mouth something.

DeYoung, 2011 WL 2899704, at *5. Under Georgia’s

protocol, the execution could not proceed until a

consciousness check was performed. The District Court was

not persuaded by this equivocal evidence of consciousness in

the face of strict procedural safeguards, and we see no abuse

of discretion in its conclusion.

13

Indeed each court to consider this issue has uniformly

held that the use of pentobarbital in lieu of sodium thiopental

is constitutional. 7 See, e.g., DeYoung v. Owens, --- F.3d ---,

2011 WL 2899704, at *3 (11th Cir. July 20, 2011); Powell v.

Thomas, 641 F.3d 1255, 1257 (11th Cir. 2011) (per curiam);

Pavatt v. Jones, 627 F.3d 1336 (10th Cir. 2010). For

example, the United States Court of Appeals for the Tenth

Circuit approved a protocol virtually identical to Delaware’s

after allowing an Oklahoma death-sentenced inmate to

conduct discovery, submit an expert report, and hold an

evidentiary hearing. Pavatt, 627 F.3d at 1338-40. In Pavatt,

the district court considered evidence that: (1) the first step of

Oklahoma’s lethal injection protocol mandates the

intravenous administration of five grams of pentobarbital;

(2) the protocol requires the attending physician to ensure that

the inmate is sufficiently unconscious prior to the

administration of the paralytic agent; (3) the administration of

a sufficient dose of pentobarbital will render an individual

unconscious; (4) the defendant’s expert witness, Dr.

Dershwitz, testified that the five-gram dosage will ensure that

the inmate does not feel the effects of the paralytic agent; and

(5) Dr. Dershwitz responded to Dr. Waisel’s testimony by

pointing out that the use of pentobarbital to induce a

barbiturate coma takes the patient to a state of

unconsciousness beyond a normal clinical level of anesthesia.

7

While these cases are not controlling, it is noteworthy

that the expert reports before the District Court here were

written by the same experts utilized in the other courts of

appeals cases.

14

Id. at 1339. At the conclusion of the hearing, the district

court denied the motion for a stay, concluding that the

prisoner failed to establish a substantial likelihood of success

on the merits of his Eighth Amendment challenge.

On appeal, the Tenth Circuit held that the district court

did not abuse its discretion in denying a stay. Specifically,

the Tenth Circuit observed that Dr. Dershwitz had

“substantially more clinical experience with the use of

pentobarbital than Dr. Waisel.” Id. at 1340. The court also

noted the importance of the consciousness check to its

analysis, and held that the inmate “failed to establish a

substantial likelihood of success on the merits of his Eighth

Amendment challenge to the . . . revised protocol.” Id.; see

also DeYoung, 2011 WL 2899704, at *6 (“DeYoung has

wholly failed to show that pentobarbital, once fully

administered and allowed to act, is ineffective as an

anesthetic.”); 8 Powell, 641 F.3d at 1257-58 (approving the

substitution of pentobarbital for sodium thiopental). We

agree with the Tenth Circuit’s approach and likewise

conclude that Plaintiffs cannot establish that pentobarbital is

8

Plaintiffs’ assertion that the Eleventh Circuit’s denial

of DeYoung’s claims was based entirely on Georgia’s two-

year statute of limitations is only partially correct. DeYoung,

2011 WL 2899704, at *3. The court engaged in a thorough

analysis of the merits of DeYoung’s claims and held in the

alternative that “even if [DeYoung’s claims] were timely,

they fail as a matter of law . . . because [he] has not

established a substantial likelihood of success on the merits of

his claims.” Id.

15

“sure or very likely to cause serious illness and needless

suffering.” Baze, 553 U.S. at 50 (quoting Helling, 509 U.S. at

34-35).

Finally, Plaintiffs argue that the District Court

misapplied the legal rubric of Baze by failing to engage in an

additional inquiry with respect to their execution challenge: a

comparative risk analysis. According to Plaintiffs, the

District Court was required to consider the comparative risks

of “known and available alternatives” to Delaware’s

pentobarbital three-drug protocol. Specifically, they argue

the District Court should have considered the comparative

risk of (1) a known anesthetic drug with a proven track

record, for use as the first drug in the three-drug protocol, or

(2) a single-drug execution protocol. 9

Plaintiffs’ argument misstates the law. “[A]

condemned prisoner cannot successfully challenge a State’s

method of execution merely by showing a slightly or

marginally safer alternative.” Baze, 553 U.S. at 51. Rather,

9

With respect to the second option, Dr. Dershwitz

testified that a five-gram dose of a barbiturate such as sodium

thiopental or pentobarbital would cause death in all people,

and that death would occur as quickly as five minutes from

the injection. Ohio has used a one-drug protocol since

November 2009, and Washington adopted a one-drug

protocol on March 2, 2010, but permits condemned inmates

to select the method. See Death Penalty Information Ctr.,

Authorized Methods,

http://www.deathpenaltyinfo.org/methods-execution.

16

an inmate must first show that a state’s current protocol

creates a “demonstrated risk of severe pain.” Id. at 61.

Moreover, Delaware is not “compelled to change its lethal

injection protocol simply because another state has elected to

do so.” Jackson I, 594 F.3d at 228. We recognize that the

one-drug protocol is gaining support as an alternative to the

three-drug lethal injection protocol, and we commend those

states steadily striving to develop more humane alternatives

to existing methods of execution. However, federal courts are

not “boards of inquiry charged with determining ‘best

practices’ for executions.” Baze, 553 U.S. at 51.

“Pentobarbital is a barbiturate commonly used to

euthanize terminally ill patients who seek death with dignity

in states such as Oregon and Washington.” Beaty v. Brewer,

--- F.3d. ---, 2011 WL 2040916, at *4 (9th Cir. 2011)

(denying rehearing en banc because inmate had no likelihood

of success on Eighth Amendment claim based on

pentobarbital). It has been used successfully for executions in

at least four other states, and there is no evidence that it fails

17

to render an inmate unconscious.10 Id. The District Court did

not abuse its discretion in finding that the use of pentobarbital

did not create “a demonstrated risk of severe pain, as required

by the Supreme Court.” Jackson, 2011 WL 3205453, at *3.

Thus, we affirm the District Court’s denial of the stay. 11

B. 60(b)(6) and 60(d)

10

Plaintiffs also assert that Defendants’ use of

pentobarbital is violative of the Eighth Amendment because it

evinces Defendants’ deliberate indifference to the potential

pain and suffering he will undergo. We have previously held

that Baze did not import the “deliberate indifference”

standard to lethal injection challenges. See Jackson I, 594

F.3d at 223 n.16. Instead, the Baze Court held that “there

must be 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, 553 U.S. at 50 (quoting

Farmer v. Brennan, 511 U.S. 825, 842, 846, & n.9 (1994)).

Even if this language did graft the deliberate indifference

standard onto lethal injection challenges, because we

conclude that there was no “substantial risk of serious harm,”

we also conclude that there could have been no deliberate

indifference to that alleged risk.

11

Because we conclude that Plaintiffs have not

demonstrated a likelihood of success on the merits, we need

not address the other factors required for a stay of an

execution.

18

Rule 60(b)(6) relief from judgment is only granted in

extraordinary circumstances. See Martinez-McBean v. Govt.

of Virgin Islands, 562 F.2d 908, 911-12 (3d Cir. 1977). 12 It is

available where the party seeking relief demonstrates that

“extreme” and “unexpected” hardship will result absent such

relief. United States v. Swift & Co., 286 U.S. 106, 119

(1932). Similarly, Rule 60(d) permits a court to entertain an

independent action to relieve a party from a judgment in order

to “prevent a grave miscarriage of justice.” United States v.

Beggerly, 524 U.S. 38, 47 (1998).

Plaintiffs claim that the addition of pentobarbital as an

available alternative to sodium thiopental is such a

circumstance. In making this argument, Plaintiffs urge that

the use of sodium thiopental was central to our decision in

Jackson I, and that the substitution of an alternative

barbiturate undermines the very foundation of our decision.

In Jackson I, we held that Delaware’s three-drug

protocol did not violate the Eighth Amendment, and stated

that “the proper administration of sodium thiopental is an

indispensable link in the lethal injection chain for Eighth

Amendment purposes, as it ensures that an inmate will not

suffer under the effects of the second two drugs.” 594 F.3d at

225. However, the import of both Baze and Jackson I is that

use of an effective anesthetic as the first drug in a three-drug

12

Fed. R. Civ. P. 60(b)(6) provides, in pertinent part:

“On motion and just terms, the court may relieve a party or its

legal representative from a final judgment, order, or

proceeding for . . . any . . . reason that justifies relief.”

19

protocol is required to satisfy the Eighth Amendment. In

other words, “[t]he proper administration of the first drug

[must] ensure[] that the prisoner does not experience any pain

associated with the paralysis and cardiac arrest caused by the

second and third drugs.” Baze, 553 U.S. at 44.

We cannot say that the District Court’s finding that

pentobarbital is an effective anesthetic for purposes of the

three-drug lethal injection is clearly erroneous, particularly

based on its demonstrated uses and the testimony of Dr.

Dershwitz. Accordingly, we conclude that the District Court

did not abuse its discretion in denying Plaintiffs’ motion to

reopen, and we agree that “the substitution of pentobarbital

for sodium thiopental does not constitute a factual change

which undermines the foundation of [the] prior ruling,”

necessitating independent action under either Rule 60(b)(6) or

60(d). Jackson, 2011 WL 3205453, at *4. 13

IV.

13

We also conclude that the District Court did not

abuse its discretion in declining to grant an evidentiary

hearing on the matter. Having presided over the entire case

and being intimately familiar with the record to date as well

as the submissions regarding pentobarbital, the District Court

was well-situated to rule on the motion to reopen and the

motion for the stay, and additional discovery would not

further illuminate the issue at bar. See United States v. Hines,

628 F.3d 101, 104 (3d Cir. 2010) (setting forth the standard of

review).

20

For all of these reasons, we conclude that Plaintiffs

have not demonstrated a substantial likelihood of success on

the merits of their claims, and that the District Court did not

abuse its discretion in denying a stay of Jackson’s execution

and Plaintiffs’ motion to reopen. Accordingly, we will

affirm.

21