No. 08-20772.

600 F.3d 552 (2010)

Charles D. RABY, Plaintiff-Appellant, v. Brad LIVINGSTON, Executive Director, Texas Department of Criminal Justice; Charles O'Reilly, Senior Warden, Huntsville Unit; Unknown Executioners; Doug Dretke, Director, Texas Department Of Criminal Justice, Correctional Institutions Division, Defendants-Appellees.

United States Court of Appeals, Fifth Circuit.

March 15, 2010.

Attorney(s) appearing for the Case

Kevin Dane Mohr (argued), Amy Roebuck Frey, King & Spalding, L.L.P., Houston, TX, for Plaintiff-Appellant.

James C. Ho, Candice Nicole Hance, Office of Solicitor Gen., Adam Warren Aston (argued), Office of Atty. Gen., Austin, TX, Marjolyn Carol Gardner, David Alan Harris, Asst. Atty. Generals, Office of Atty. Gen., Law Enforcement Defense Div., Austin, TX, for Defendants-Appellees.

Before JONES, Chief Judge, and GARZA and STEWART, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Charles Raby is a Texas prisoner under death sentence. Raby filed suit under 42 U.S.C. § 1983, asserting that Texas' method for lethal injection violates his right to be free of cruel and unusual punishment guaranteed by the Eighth Amendment to the United States Constitution. In the wake of the Supreme Court's decision upholding lethal injection in Kentucky in Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520

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