Case: Resendiz v. Livingston

4:06-cv-00818 | U.S. District Court for the Southern District of Texas

Filed Date: March 10, 2006

Closed Date: 2006

Clearinghouse coding complete

Case Summary

On March 10, 2006, Carlos Gonzalez Magallon, the Consul General of Mexico in Houston, Texas filed a lawsuit as the Next Friend of Angel Maturino Resendiz, a Mexican national who was being held on death row in the Harris County Jail in Houston Texas. Magallon claimed that Resendiz was incompetent and needed someone to bring this lawsuit on his behalf. Magallon complained to the Court that the lethal injection method used by the defendants would allow Resendiz to experience an unconstitutionall…

On March 10, 2006, Carlos Gonzalez Magallon, the Consul General of Mexico in Houston, Texas filed a lawsuit as the Next Friend of Angel Maturino Resendiz, a Mexican national who was being held on death row in the Harris County Jail in Houston Texas. Magallon claimed that Resendiz was incompetent and needed someone to bring this lawsuit on his behalf. Magallon complained to the Court that the lethal injection method used by the defendants would allow Resendiz to experience an unconstitutionally high level of pain. Specifically, he objected to the use of a short-acting anesthetic, which he claimed would wear off before the process was complete, leaving Resendiz in excrutiating pain from the injection of potassium chloride. He also complained that the use of a paralytic agent during the process would render Resendiz unable to alert the executioners that the anesthetic had worn off, while at the same time suffocating him to death because the paralysis would prevent him from using his lungs. He asked the court to stay the execution of Resendiz and to enjoin the defendants from using the lethal injection method in question.

On March 28, 2006, the defendants asked the District Court to dismiss the complaint, arguing that Magallon lacked standing to bring the lawsuit because it had not been demonstrated that Resendiz was incompetent to bring the lawsuit on his own behalf, that the plaintiff had unreasonably delayed bringing the complaint, and that the complaint was frivolous because the probability of the inmate suffering any pain was "so remote as to be nonexistent."

On April 27, 2006, the District Court (Judge Lee H. Rosenthal) dismissed the case, finding that there had been no demonstration of Resendiz's incompetence and that the lawsuit had been raised after an unreasonable delay. Gonzalez Magallon v. Livingston, 2006 WL 1168795 (S.D.Tex. Apr. 27, 2006). Magallon appealed, and on June, 16, 2006, the U.S. Court of Appeals for the Fifth Circuit partially affirmed the District Court's decision and remanded the case back to the District Court and issued an order that Resendiz should be allowed to file an appropriate motion to be substituted as the proper plaintiff in the case. Gonzalez Magallon v. Livingston, 453 F.3d 268 (5th Cir. 2006).

On June 23, 2006, Resendiz was substituted as the plaintiff in the case, and he asked the District Court for a preliminary injunction, a temporary restraining order, and a stay of his execution. Three days later, the District Court (Judge Rosenthal) denied all of his requests, finding that Resendiz was merely trying to delay his execution rather than advancing a legitimate legal challenge to the lethal injection method in question. Resendiz v. Livingston, 2006 U.S.Dist.LEXIS 43107 (S.D.Tex. Jun. 23, 2006).

On June 27, 2006, Angel Maturino Resendiz was executed by lethal injection, and the next day, the District Court (Judge Rosenthal) dismissed the case as moot.

Summary Authors

Kristen Sagar (9/17/2007)

People

For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/5301016/parties/resendiz-v-livingston-death-penalty-case/


Judge(s)

Benavides, Fortunato Pedro (Texas)

Dennis, James L. (Louisiana)

Higginbotham, Patrick Errol (Texas)

Rosenthal, Lee Hyman (Texas)

Attorneys(s) for Plaintiff

Ford, Timothy K. (Washington)

Owen, Robert C (Texas)

Tyler, Jared Philip (Texas)

Attorneys(s) for Defendant

Abbott, Greg (Texas)

Bunn, Gena Blount (Texas)

Clemmer, Don (Texas)

Judge(s)

Benavides, Fortunato Pedro (Texas)

Dennis, James L. (Louisiana)

Higginbotham, Patrick Errol (Texas)

Rosenthal, Lee Hyman (Texas)

Attorneys(s) for Plaintiff

Ford, Timothy K. (Washington)

Owen, Robert C (Texas)

Tyler, Jared Philip (Texas)

Attorneys(s) for Defendant

Abbott, Greg (Texas)

Bunn, Gena Blount (Texas)

Clemmer, Don (Texas)

Marshall, Edward Larry (Texas)

McBee, Barry Ross (Texas)

Documents in the Clearinghouse

Document

Docket [PACER]

July 5, 2006 Docket
1

Plaintiff's Original Complaint

Magallon v. Livingston

March 10, 2006 Complaint
6

Defendant's Motion to Dismiss with Brief in Support

Magallon v. Livingston

March 28, 2006 Pleading / Motion / Brief
13

Memorandum and Opinion [Granting Defendant's Motion to Dismiss]

Magallon v. Livingston

2006 WL 1168795

April 27, 2006 Order/Opinion
15

Motion to Alter or Amend the Judgment []

Magallon v. Livingston

May 1, 2006 Pleading / Motion / Brief
16

Order [Dismissing Action]

Magallon v. Livingston

May 4, 2006 Order/Opinion

USCA Opinion

Magallon v. Livingston

U. S. Court of Appeals for the Fifth Circuit

453 F.3d 268

June 16, 2006 Order/Opinion
20

Order on Remand

Magallon v. Livingston

2006 U.S.Dist.LEXIS 40719

June 19, 2006 Order/Opinion
25

Order [Granting Party Substitution]

June 23, 2006 Order/Opinion
25

Motion to Substitute Real Party in Interest Angel Maturino Resendiz as Plaintiff

Magallon v. Livingston

June 23, 2006 Pleading / Motion / Brief

Docket

See docket on RECAP: https://www.courtlistener.com/docket/5301016/resendiz-v-livingston-death-penalty-case/

Last updated May 20, 2022, 1:21 a.m.

ECF Number Description Date Link
1

Prisoner Civil Rights COMPLAINT against all defendants (Filing fee $ 250) filed by Carlos Gonzalez Magallon.(rsmith, ) Additional attachment(s) added on 3/10/2006 (rsmith, ). Additional attachment(s) added on 3/10/2006 (rsmith, ). (Entered: 03/10/2006)

March 10, 2006
13

MEMORANDUM AND OPINION entered GRANTING Defts. 6 MOTION to Dismiss. This case will be dismissed by separate order( Signed by Judge Lee H Rosenthal ) Parties notified.(leddins, )

April 27, 2006 RECAP
2

MOTION for Timothy K Ford to Appear Pro Hac Vice by Carlos Gonzalez Magallon, filed. Motion Docket Date 3/30/2006. (mkadlubowski, ) (Entered: 03/10/2006)

March 10, 2006
16

ORDER entered GRANTING IN PART Pltfs 15 MOTION to Alter Judgment, as to the typographical error, and reconfirming this courts order of dismissal.( Signed by Judge Lee H Rosenthal ) Parties notified.(leddins, )

May 4, 2006 RECAP
20

ORDER ON REMAND entered. Counsel for plaintiff must file his motion on Resendiz's behalf on or before 6/22/06. .( Signed by Judge Lee H Rosenthal ) Parties notified.(leddins, )

June 19, 2006 RECAP

Summons Issued as to Brad Livingston, Doug Dretke, Charles O'Reilly , filed.(lusmith, ) (Entered: 03/10/2006)

March 10, 2006
24

ORDER entered that Resendiz has until 6/23/06 to file a motion to substitute. Failure to do so will be taken as representation that Resendiz does not wish to pursue the lawsuit .( Signed by Judge Lee H Rosenthal ) Parties notified.(leddins, )

June 22, 2006 RECAP

CIVIL Filing fee re: 1 Complaint: $ 250.00, receipt number 4- 567656 , filed. (ejones, ) (Entered: 03/10/2006)

March 10, 2006
26

ORDER entered GRANTING 25 MOTION to Substitute Party Angel Maturino Resendez in place of Carlos Gonzalez Magallon. Counsel must file its motion to stay by 12:00 p.m. on 6/25/06 and the AG's office must respond by 12:00 p.m. on 6/26/06. Counsel must fax a copy to the AG's office and to this court's case manager.( Signed by Judge Lee H Rosenthal ) Parties notified.(leddins, )

June 23, 2006 RECAP
3

ORDER granting 2 Motion to Appear Pro Hac Vice as to Timothy Ford .( Signed by Judge Lee H Rosenthal ) Parties notified.(bthomas, ) (Entered: 03/13/2006)

March 10, 2006
30

MEMORANDUM AND ORDER entered DENYING Petitioners 27 MOTION for Preliminary Injunction, restraining order or stay of execution.( Signed by Judge Lee H Rosenthal ) Parties notified.(leddins, )

June 26, 2006 RECAP
4

NOTICE of Appearance by Edward L. Marshall on behalf of all defendants, filed. (Marshall, Edward) (Entered: 03/21/2006)

March 21, 2006
5

First AMENDED Complaint against all defendants filed by Carlos Gonzalez Magallon. Related document: 1 Complaint filed by Carlos Gonzalez Magallon,.(Ford, Timothy) (Entered: 03/27/2006)

March 27, 2006
35

ORDER entered mooting Resendiz's request for injunctive relief based on the execution of plaintiff. This case is dismissed .( Signed by Judge Lee H Rosenthal ) Parties notified.(leddins, )

June 28, 2006 RECAP
6

MOTION to Dismiss by all defendants, filed. Motion Docket Date 4/17/2006. (Attachments: # 1 Proposed Order)(Marshall, Edward) (Entered: 03/28/2006)

March 28, 2006
7

CERTIFICATE OF SERVICE of 5 Amended Complaint/Counterclaim/Crossclaim etc. by Carlos Gonzalez Magallon, filed.(Ford, Timothy) (Entered: 03/28/2006)

March 28, 2006
8

Order entered Requiring Consul General to file a responsive pleading to defendant Resendiz's Motion to Dismiss. Response to be filed within 10 days from the date of this Order. ( Signed by Judge Lee H Rosenthal ) Parties notified.(csonnier, ) (Entered: 03/30/2006)

March 30, 2006
9

Mail Returned Undeliverable as to attorney Jared Philip Tyler re: 8 Order , filed. (ghassan, ) (Entered: 04/11/2006)

April 10, 2006

Address of attorney Jared Philip Tyler updated. Copy of Order #8 re-sent to Mr. Tyler via USPS on 4/11/2006, filed. (ghassan, ) (Entered: 04/11/2006)

April 11, 2006
10

RESPONSE in Opposition to 6 MOTION to Dismiss, filed by Carlos Gonzalez Magallon. (Attachments: # 1 Proposed Order)(Ford, Timothy) (Entered: 04/12/2006)

April 12, 2006
11

APPENDIX re: 10 Response in Opposition to Motion by Carlos Gonzalez Magallon, filed. (Attachments: # 1 Appendix 1-3# 2 Appendix 4# 3 Appendix 5-6# 4 Appendix 7# 5 Appendix 8- 10)(Ford, Timothy) (Entered: 04/12/2006)

April 12, 2006
12

NOTICE of Modification of Execution Date by Carlos Gonzalez Magallon, filed. (Attachments: # 1 Exhibit A)(Ford, Timothy) (Entered: 04/19/2006)

April 19, 2006
14

ORDER OF DISMISSAL entered. This case is dismissed with prejudice. Case terminated on 4/27/06.( Signed by Judge Lee H Rosenthal ) Parties notified.(leddins, ) (Entered: 04/27/2006)

April 27, 2006
15

MOTION to Alter Judgment by Carlos Gonzalez Magallon, filed. Motion Docket Date 5/22/2006. (Ford, Timothy) (Entered: 05/01/2006)

May 1, 2006
17

NOTICE OF APPEAL to US Court of Appeals for the Fifth Circuit re: 13 Memorandum & Opinion, 16 Order, 14 Order of Dismissal by Carlos Gonzalez Magallon (Filing fee $ 455), filed.(Ford, Timothy) (Entered: 05/04/2006)

May 4, 2006
18

Transmittal Letter to US Court of Appeals for the Fifth Circuit re: 17 Notice of Appeal. Fee status: not paid, filed. (via email, attention Monica Washington)(jdavenport, ) (Entered: 05/09/2006)

May 9, 2006
19

Notice of Docketing Notice of Appeal from US Court of Appeals for the Fifth Circuit re: 17 Notice of Appeal. USCA No. 06-70023 RE: Orders (Related Document #13, 14, 16, filed.(mkadlubowski, ) (Entered: 05/18/2006)

May 17, 2006

APPEAL Filing fee re: 17 Notice of Appeal: $ 455.00, receipt number 4-570198; PD BY MacDonald Hoague & Bayless Law Firm (Terry K Ford) , filed. (ejones, ) (Entered: 05/19/2006)

May 19, 2006
21

Response to 20 Order and Conditional MOTION to Appoint Angel Maturino Resendez by Carlos Gonzalez Magallon, filed. Motion Docket Date 7/12/2006. (chorace, ) Additional attachment(s) added on 6/22/2006 (chorace, ). (Entered: 06/22/2006)

June 22, 2006
22

NOTICE of Appearance by Robert C. Owen on behalf of Carlos Gonzalez Magallon, filed. (chorace, ) (Entered: 06/22/2006)

June 22, 2006
23

RESPONSE to 21 MOTION to Appoint Angel Maturino Resendez and EMERGENCY REQUEST for Stay of Execution, filed by Carlos Gonzalez Magallon. (Ford, Timothy) Modified on 6/30/2006 (ltien, ). (Entered: 06/22/2006)

June 22, 2006
25

MOTION to Substitute Real Party in Interest Angel Maturino Resendez in place of Carlos Gonzalez Magallon by Carlos Gonzalez Magallon, filed. Motion Docket Date 7/13/2006. (cpeebles) (Entered: 06/23/2006)

June 23, 2006
27

MOTION for Preliminary Injunction, MOTION for Temporary Restraining Order, or MOTION for Stay of Execution and Memorandum in Support by Angel Maturino Resendez, filed. Motion Docket Date 7/17/2006. (Attachments: # 1 Exhibit)(Owen, Robert) Additional motion reliefs added on 7/11/2006 (ltien, ). (Entered: 06/25/2006)

June 25, 2006
28

RESPONSE in Opposition to 27 MOTION for Preliminary Injunction, filed by all defendants. (Attachments: # 1 Proposed Order)(Marshall, Edward) (Entered: 06/26/2006)

June 26, 2006
29

REPLY to Response to 27 MOTION for Preliminary Injunction, Temporary Restraining Order or Stay of Execution by Angel Maturino Resendez, filed. (Owen, Robert) Modified on 6/26/2006 (leddins, ). Modified on 7/11/2006 - linked to #27 (ltien, ). (Entered: 06/26/2006)

June 26, 2006
31

NOTICE OF APPEAL to US Court of Appeals re: 30 Memorandum & Order by Angel Maturino Resendiz (Filing fee $ 455), filed.(Owen, Robert) (Entered: 06/26/2006)

June 26, 2006
32

MOTION for Leave to Appeal in forma pauperis by Angel Maturino Resendiz, filed. Motion Docket Date 7/17/2006. (Owen, Robert) (Entered: 06/26/2006)

June 26, 2006
33

ORDER entered GRANTING 32 MOTION for Leave to Appeal in forma pauperis.( Signed by Judge Lee H Rosenthal ) Parties notified.(leddins, ) (Entered: 06/26/2006)

June 26, 2006
34

Transmittal Letter to US Court of Appeals for the Fifth Circuit re: 31 Notice of Appeal. Fee status: paid, filed.(mharrison, ) (Entered: 06/27/2006)

June 27, 2006
36

ORDER OF DISMISSAL entered. This case is dismissed .( Signed by Judge Lee H Rosenthal ) Parties notified.(leddins, ) (Entered: 06/28/2006)

June 28, 2006
37

Mail Returned Undeliverable as to attorney Robert C Owen re: 24 Order , filed. (sbyrum, ) (Entered: 06/28/2006)

June 28, 2006

Electronic record on appeal certified to the U.S. Court of Appeals for the Fifth Circuit. Fifth Circuit Court of Appeals Case Number: (no number listed), filed.(mharrison, ) (Entered: 06/29/2006)

June 29, 2006
38

Fifth Circuit Court of Appeals LETTER advising the record on appeal will be forwarded at a later date (USCA No. 06-40023), filed.(jdavenport, ) (Entered: 07/04/2006)

July 3, 2006
39

OPINION from USCA for the Fifth Circuit re: 31 Notice of Appeal (USCA No. 06-70023). The district court's decision that the Consul General cannot sue as Resendiz's next friend is AFFIRMED. The judgment of the district court is MODIFIED to provide that this suit can continue if Resendiz chooses to be substituted as the proper plaintiff. This case is REMANDED accordingly, filed.(jdavenport, ) (Entered: 07/04/2006)

July 3, 2006
40

Fifth Circuit Court of Appeals LETTER advising enclosed certified copy of opinion-order entered 6/27/06 Case Closed (USCA No. 06-70029), filed.(ledwards, ) (Entered: 07/05/2006)

July 3, 2006
41

Copy of OPINION from USCA for the Fifth Circuit re: 17 Notice of Appeal (USCA No. 06-70029). Affirmed; Stay Denied, filed.(ledwards, ) (Entered: 07/05/2006)

July 3, 2006
42

Mail Returned Undeliverable as to attorney Robert C Owen re: 26 Order, , filed. (ypippin, ) (Entered: 07/06/2006)

July 5, 2006

State / Territory: Texas

Case Type(s):

Criminal Justice (Other)

Key Dates

Filing Date: March 10, 2006

Closing Date: 2006

Case Ongoing: No

Plaintiffs

Plaintiff Description:

the Consul General of Mexico and a Mexican national who was being held on death row in the Harris County Jail

Plaintiff Type(s):

Private Plaintiff

Public Interest Lawyer: No

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Defendants

Texas Department of Corrections (Houston, Harris), State

Case Details

Causes of Action:

42 U.S.C. § 1983

Constitutional Clause(s):

Cruel and Unusual Punishment

Availably Documents:

Trial Court Docket

Complaint (any)

Any published opinion

Outcome

Prevailing Party: Defendant

Nature of Relief:

None

Source of Relief:

None

Content of Injunction:

Preliminary relief denied

Issues

Death Penalty:

Lethal Injection - General