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SMITH v. JOHNSON

No. 06-70007.

440 F.3d 262 (2006)

Clyde SMITH, Jr., Plaintiff-Appellant, v. Gary L. JOHNSON, Executive Director, Texas Department of Criminal Justice; Doug Dretke, Director, Texas Department of Criminal Justice, Correctional Institutions Division; Charles O'Reilly, Senior Warden, Huntsville Unit; Unknown Executioners, Defendants-Appellees.

United States Court of Appeals, Fifth Circuit.

February 14, 2006.

Attorney(s) appearing for the Case

Franklin Ray Mickelsen, Jr., F. Clinton Broden, Broden & Mickelsen, Dallas, TX, for Smith.

Kelli L. Weaver, Austin, TX, for Defendants-Appellees.

Before BARKSDALE, DeMOSS and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

The plaintiff-appellant, Clyde Smith, Jr. (Smith), is scheduled to be executed on February 15, 2006. Smith appeals the district court's dismissal of his suit seeking injunctive relief pursuant to 42 U.S.C. § 1983. He alleged that the particular method of execution used by Texas, lethal injection, causes excruciating pain during an execution in violation of the Eighth Amendment. The district court dismissed the complaint with prejudice...

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