FILED
FOR PUBLICATION OCT 26 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JEFFREY TIMOTHY LANDRIGAN, No. 10-99021
Plaintiff - Appellee, D.C. No. 2:10-cv-00246-ROS
District of Arizona,
v. Phoenix
JANICE K. BREWER; et al.,
ORDER
Defendants - Appellants.
Before: RYMER, WARDLAW, and W. FLETCHER, Circuit Judges
The State of Arizona appeals the district court’s order granting a
temporary restraining order enjoining the scheduled execution on October 26, 2010
of Arizona inmate Jeffrey Timothy Landrigan.1 We cannot say the district court
abused its discretion, and we affirm.
Landrigan filed a complaint under 42 U.S.C. § 1983 on October 21, 2010,
challenging the use of sodium thiopental from an unidentified foreign
manufacturing source that is not approved by the Food and Drug Administration
1
The district court’s mandate states that “Plaintiff’s Motion for a
Temporary Restraining Order or a Preliminary Injunction is GRANTED.” We
construe its order as one for a preliminary injunction.
(FDA). He maintains that this creates a substantial and unnecessary risk of serious
pain during his execution in violation of the Eighth Amendment to the United
States Constitution. Landrigan also claims that the state’s refusal to disclose
details about the source of the drug and its handling offends his due process rights
under the Fourteenth Amendment. Although the state acknowledged that its source
of sodium thiopental is foreign, it refused to supply details. The state’s position is
that Ariz. Rev. Stat. § 13-757(C) prohibits disclosure of the identity of people or
entities who are involved in ancillary functions of an execution and information in
records that would identify them, and that in any event its protocol – which is not
challenged in this action – has safeguards sufficient to guard against an intolerable
risk of harm.
Landrigan sought post-conviction relief in state court challenging Arizona’s
lethal injection protocol on state law grounds. Relief was denied on October 8,
2009, largely on the basis of Judge Wake’s ruling in Dickens v. Brewer, No. CV-
07-1770-PHX-NVW, 2009 WL 1904294 (D. Ariz. July 1, 2009), upholding the
constitutionality of the protocol.2 When the state moved in the Arizona Supreme
Court for a warrant of execution, Landrigan opposed the motion in May 2010 on
various grounds, including the pendency of appellate proceedings in Dickens. He
2
An appeal from this ruling is pending in our court.
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supplemented his opposition by asserting that there was a nationwide shortage of
sodium thiopental and asking the court to delay ruling on the warrant request until
the state demonstrated that it had, or could legally obtain, the drugs necessary to
carry out his execution consistent with Arizona’s protocol. The Arizona Supreme
Court issued a warrant on September 21, but directed the state to report by October
1 whether it possessed a sufficient quantity of all the necessary drugs. The state
indicated that Arizona Department of Corrections (ADOC) had obtained the
necessary supply. Landrigan then asked the Arizona Supreme Court to compel
disclosure of information about the sodium thiopental that the state planned to use
to implement his execution, as well as to stay the execution. On October 20, the
Arizona Supreme Court declined relief without explanation.
Landrigan filed his federal complaint the next day. The day the complaint
was filed, the district court issued an order requesting the state voluntarily to
provide detailed information concerning the sodium thiopental it intends to use in
Landrigan’s execution. In default of providing the information, the court directed
the state to explain why it would not provide the information or to explain why the
information was not relevant to the disposition of a motion for a temporary
restraining order or preliminary injunction. The state did not produce the requested
information. The court issued another order on October 23. In this order, the
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district court disagreed with the state’s claim that Ariz. Rev. Stat. § 13-757(C) bars
it from providing information about the source, labels, and lot numbers of the
Department of Corrections’s sodium thiopental supply; in the court’s view, the
statute applies only to individuals, not to entities. Further, the court noted that
while the Eighth Amendment may not categorically prohibit the use of non-FDA
approved drugs, to decide the case it must have some basis for comparing the
effectiveness of the drug already obtained by the state to that of drugs
manufactured by an FDA-approved source. Thus, the court concluded, it could not
do without knowing the source of the drug the state proposed to use, its expiration
date, the efficacy of the drug for its intended purpose, and all available
documentation concerning the manufacturer and its process for producing sodium
thiopental. For this reason, it ordered the state to disclose that information
immediately.
In response, the state submitted a “Disclosure of Information/Motion to
Reconsider” on October 24. In it, the state represented that its sodium thiopental is
in 500 mg vials with an expiration date of May 2014. It also represented that “the
process of shipping and receiving the chemicals was cleared and approved by U.S.
Customs and FDA officials.” Beyond this, the state maintained that the court’s
October 23 order improperly engrafted a requirement that the state use FDA-
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approved drugs, and failed to address protections that are in place to ensure that an
inmate is unconscious following administration of sodium thiopental. The state
also adhered to its position that Ariz. Rev. Stat. § 13-757(C) preserves
confidentiality of entities involved in functions ancillary to the execution process.
Alternatively, the state requested permission to file the information required to be
disclosed under seal instead of publicly, as the October 23 order directed. It moved
to file under seal and for a protective order,3 which Landrigan opposed.
On October 25, the district court denied the state’s request to file under seal
and granted a temporary injunction restraining the state from carrying out
Landrigan’s death sentence until further order of the court.
The court also ordered the state to disclose to Landrigan the documents
provided to the court. The court reasoned that in the unique circumstances of this
case, the state’s refusal to provide discovery, that is, to provide information to
Landrigan about the source and efficacy of its drug, effectively deprived him of the
opportunity to try to carry his burden of proving entitlement to injunctive relief
under Winter v. Natural Resources Defense Council, 555 U.S. ___, 129 S. Ct. 365,
3
The request for a protective order was unsupported by a declaration.
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376 (2008).4 This left uncontested Landrigan’s evidence that drugs from a non-
FDA approved source are more likely to contain harmful contaminants. The court
made clear that it does not assume that the Eighth Amendment categorically
prohibits use of non-FDA approved drugs; rather, “it seems likely that the Eighth
Amendment does not prohibit the use of such drugs.” But in the court’s view,
without assurance of FDA approval, the court lacked the ability to determine
whether the drug to be used will perform in the same manner as if it had FDA-
approval absent any of the requested information from the state.
The court found little potential for significant injury to the state, as a stay
would not preclude it from carrying out the execution with an alternate barbiturate
or with sodium thiopental from Hospira when it resumes manufacturing the drug in
2011. By contrast, in the absence of injunctive relief, Landrigan would be
executed using a drug of unknown quality. The court concluded that the balance of
equities favors Landrigan because a stay could have been avoided had the state
4
The court explained, “This Court has never experienced a situation such as
this where a defendant opposes a motion for emergency relief by claiming it has
the evidence necessary for resolution of the matter but that evidence should not be
produced. Defendants have never adequately explained their rationale for
withholding all evidence regarding the drug, and Defendants have now created a
situation where a seemingly simple claim that could have been resolved well in
advance of the execution must be resolved in five days – and now only eighteen
hours due to further protractions created only by Defendants – without the benefit
of Plaintiff having the opportunity to present fact-based arguments.”
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timely disclosed the source of its sodium thiopental, and that the temporary stay
will allow for responsible adjudication of the claims.
Finally, the court found no significant harm to the public interest from an
informed adjudication of Landrigan’s claims.
To prevail on a request for injunctive relief, the petitioner must show (1) he
is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the
absence of preliminary relief; (3) the balance of equities tips in his favor, and (4)
an injunction is in the public interest. Winter v. Natural Resources Defense
Council, 555 U.S. ___, 129 S. Ct. 365, 376 (2008).
In Baze v. Rees, 553 U.S. 35 (2008), the Court considered an Eighth
Amendment challenge to Kentucky’s lethal injunction protocol. Upholding
Kentucky’s protocol, the three justice plurality articulated a standard that requires
the inmate to establish a “substantial risk of serious harm.” Id. at 52. The plurality
instructed that “[a] stay of execution may not be granted . . . unless the condemned
prisoner establishes that the State’s lethal injection protocol creates a demonstrated
risk of severe pain.” Id. at 61. A risk that procedures will not be properly followed
can qualify as cruel and unusual punishment, but to establish 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
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imminent dangers.’” Id. at 50 (quoting and adding emphasis to Helling v.
McKinney, 509 U.S. 25, 33, 34-35 (1993)).
Although the state provided some information for in camera review by the
district court, it did not ask this court to file those materials under seal, or
otherwise. See Circuit Rule 27-13; Fed. R. App. P. 10(b)(2). Nor has the state
offered any indication of what those materials might be or how they might inform a
decision about whether the drug would function as intended. Because we do not
know what was before the district court due to the state’s failure to provide the
materials, we cannot say the district court abused its discretion in granting a
temporary stay.
The Supreme Court standards, and our legal process, assume that the parties
will be forthcoming with information necessary to make an informed and reasoned
decision. Here, it was not provided.
AFFIRMED.
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