Gerald Pizzuto, Jr. v. Josh Tewalt

997 F.3d 893

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 12, 2021
• Docket: 20-36044
• Status: Published

Opinion

FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 12 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GERALD ROSS PIZZUTO, Jr.; THOMAS No. 20-36044 E. CREECH, D.C. No. 1:20-cv-00114-DCN Plaintiffs-Appellants,

v. OPINION

JOSH TEWALT, Director, Idaho Department of Correction, in his official capacity; CHAD PAGE, Chief, Division of Prisons, Idaho Department of Correction, in his official capacity; TYRELL DAVIS, Warden Maximum Security Institution; UNKNOWN EMPLOYEES, AGENTS, OR CONTRACTORS OF THE IDAHO DEPARTMENT OF CORRECTION, in their official capacities,

Defendants-Appellees,

and

BRAD LITTLE, Idaho State Governor, in his official capacity,

Defendant.

Appeal from the United States District Court for the District of Idaho David C. Nye, Chief District Judge, Presiding

Argued and Submitted April 5, 2021 Seattle, Washington Before: Ronald M. Gould, Johnnie B. Rawlinson, and Mark J. Bennett, Circuit Judges.

Opinion by Judge Bennett; Partial Concurrence and Partial Dissent by Judge Gould

BENNETT, Circuit Judge:

Plaintiffs Gerald Pizzuto and Thomas Creech, two prisoners on Idaho’s death

row, seek information concerning Idaho’s execution procedures. They do not in this

action claim that their execution will be unconstitutional; rather, they claim that the

deprivation of information itself constitutes a violation of their constitutional and

statutory rights under 42 U.S.C. § 1983. The district court dismissed all their claims

as unripe. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and

remand.

I.

In 1985, Pizzuto robbed and killed Berta and Delbert Herndon at a

campground near the town of McCall, Idaho. State v. Pizzuto, 810 P.2d 680, 686–

87 (Idaho 1991), overruled on other grounds by State v. Card, 825 P.2d 1081, 1088

(Idaho 1991). He was convicted of two counts of first-degree murder and sentenced

to death. Id. at 687. His sentence was upheld on direct appeal in 1991. See id. at

716. Creech was serving a life sentence for two counts of first-degree murder at the

Idaho State Correctional Institution when he killed fellow inmate David Dale Jensen

in 1981. State v. Creech, 670 P.2d 463, 465 (Idaho 1983); see also State v. Creech,

2 589 P.2d 114, 115 (Idaho 1979) (per curiam). He pleaded guilty to first-degree

murder for killing Jensen and was sentenced to death. Creech, 670 P.2d at 465–66.

This court ultimately granted habeas relief and the case was remanded for

resentencing. Creech v. Arave, 947 F.2d 873, 888 (9th Cir. 1991), rev’d in part by

507 U.S. 463 (1993). On remand, the trial court resentenced Creech to death, and

the death sentence was upheld by the Idaho Supreme Court in 1998. See State v.

Creech, 966 P.2d 1, 6, 23 (Idaho 1998).

Both Pizzuto and Creech are close to exhausting their post-conviction appeals.

On February 3, 2021, the Idaho Supreme Court affirmed the denial of Pizzuto’s

motion to alter the judgment on his fifth petition for post-conviction relief. Pizzuto

v. State, --- P.3d ---, 2021 WL 358204 at *1 (Idaho Feb. 3, 2021).1 That decision

will become final if Pizzuto does not file a certiorari petition to the United States

Supreme Court or he files such a petition and it is resolved in Idaho’s favor. Pizzuto

has no pending federal post-conviction proceedings,2 and this court affirmed the

denial of his most recent habeas petition in Pizzuto v. Yordy, 947 F.3d 510 (9th Cir.

2019) (per curiam), cert. denied 141 S. Ct. 661 (2020). See id. at 514. Creech filed

a federal habeas petition in 1999 that was denied by the district court. Creech’s

1 On April 29, 2021, while this appeal was pending, the Idaho Supreme Court denied Pizzuto’s petition for rehearing and issued a remittitur. 2 Pizzuto has since filed an original habeas petition and an application for a stay of execution in the United States Supreme Court. That proceeding was initiated May 10, 2021, after the issuance of Pizzuto’s death warrant.

3 appeal is scheduled for argument before this court in September 2021. At the time

of this appeal, there was no outstanding death warrant for either Pizzuto or Creech.3

In Idaho, lethal injection is the sole method of execution. Idaho Code § 19-

2716. The execution must take place no more than thirty days after the issuance of

a death warrant. Id. § 19-2715(2). All other matters relating to execution

procedures, including the drugs to be used in the execution, are delegated to the

Director of the Idaho Department of Correction (“IDOC”). Id. § 19-2716. Pursuant

to this authority, IDOC publishes an execution protocol called the Standard

Operating Procedure (“SOP”) that explains the procedures and drugs the state will

use. At the time Pizzuto and Creech filed this lawsuit, the extant SOP (“SOP 135”)

had been last updated on January 6, 2012. Idaho’s last execution took place on June

12, 2012.

In December 2018, Pizzuto and Creech’s attorneys wrote to the Director

seeking information related to IDOC’s execution protocol. As relevant to this

appeal, they sought the following:

(1) the number, amount, and type of drugs to be used, (2) how the drugs were made, how the drugs were/would be obtained, their source, amounts, expiration date, how they were/would be acquired/transported/stored/tested, when IDOC would obtain the drugs, etc., (3) whether/when a new version of SOP 135 would be issued . . . (4) whether witnesses would be able to observe

3 Idaho death warrants expire after thirty days, see Idaho Code § 19-2715(2), and all prior death warrants have long expired. On May 6, 2021, following the Idaho Supreme Court’s remittitur, the Idaho district court issued a death warrant for Pizzuto, with a scheduled execution date of June 2, 2021.

4 the insertion of the IVs [intravenous lines], (5) procedures for IV placement/length, (6) who would participate in the execution, what was their training/qualifications, and how would they be chosen, (7) whether there would be a consciousness check and the procedure for it, and (8) procedures for botched executions.

Plaintiffs claim this information is essential to prevent a botched execution. For

example, they claim the type of drug that will be used is important because “[t]here

have been significant questions raised about the efficacy of certain drugs used in

executions.” Pizzuto and Creech contend this information is especially important to

them as both have significant health issues. Pizzuto has had multiple heart attacks

and is currently on several medications that would render certain execution drugs

ineffective. Creech suffers from brain damage that may cause atypical reactions to

certain drugs, and he also takes various medications. Plaintiffs claim the source of

a drug also matters because some execution drugs are obtained from compounding

pharmacies, which are more susceptible to error than FDA-approved manufacturers.

In addition, plaintiffs describe several botched executions that resulted from human

error. Thus, they claim that it is critical they know the identities and credentials of

the personnel tasked with preparing and injecting the execution drugs.

IDOC did not provide plaintiffs’ counsel with the answers they sought, and

instead directed them to SOP 135. Unsatisfied, counsel arranged an in-person

meeting with IDOC in June 2019, from which counsel gathered that SOP 135 would

be revised prior to any execution. Subsequent communications between IDOC and

5 plaintiffs’ counsel did not result in counsel obtaining the information they wanted.

In late 2019, Pizzuto and Creech tried various administrative channels to obtain

further information about their executions, but those attempts also proved

unsuccessful.

Pizzuto and Creech then brought this § 1983 suit against various IDOC

officials, alleging multiple violations of their rights. Their claims are: (1) the

deprivation of execution-related information violates their First and Fourteenth

Amendment rights to access government proceedings; (2) the deprivation of

execution-related information violates their First Amendment right to petition the

government for redress of grievances; (3) the absence of a “real” execution protocol

constitutes cruel and unusual punishment in violation of the Eighth Amendment; (4)

the deprivation of execution-related information violates their right to due process

under the Fourteenth Amendment; (5) the absence of a “real” execution protocol

(and, in the alternative, the discretion vested in the Director by SOP 135) violates

the Equal Protection Clause; (6) the deprivation of execution-related information

violates their statutory right to counsel under 18 U.S.C. § 3599; (7) the Director’s

authority to issue execution protocols is unconstitutional under various provisions

of the Idaho Constitution; (8) the Director’s refusal to issue a revised SOP violates

his obligations under Idaho law; and (9) the deprivation of information creates a

substantial risk of serious harm, which violates the Eighth Amendment. They seek

6 to enjoin the executions until the purported violations are remedied.

The district court dismissed plaintiffs’ claims without prejudice, finding they

were not ripe for adjudication. The court reasoned that both Pizzuto and Creech had

pending post-conviction appeals, and thus “the ultimate question of whether the two

men will even be executed remains an undetermined and open question.” Plaintiffs

timely appealed and sought expedited briefing, which we granted.

On March 30, 2021, while plaintiffs’ appeal was pending, IDOC revised its

execution protocol.4 The revised SOP provides IDOC with four alternative methods

of execution.5 The first method is a three-drug protocol using sodium pentothal,

pancuronium bromide, and potassium chloride. The second method is also a three-

drug protocol, but it replaces sodium pentothal with pentobarbital. The other two

methods are single-drug protocols, one using sodium pentothal and the other using

pentobarbital. The method selected for an execution depends on the availability of

chemicals, but the SOP allows for “no deviation from the procedures, protocols, and

chemicals . . . without prior consent from the Director.”

II.

4 The revised SOP is publicly available on IDOC’s website. See http://forms.idoc.idaho.gov/WebLink/0/edoc/283090/Execution%20Procedures.pdf . It consists of a document titled “Execution Procedures” that incorporates by reference the “Execution Chemicals Preparation and Administration” document, a witness agreement form, and a summary of the procedures. 5 The four methods of execution have not changed significantly from the 2012 version of the SOP.

7 We begin with a discussion of the ripeness framework we apply. The ripeness

doctrine is designed to “prevent the courts, through avoidance of premature

adjudication, from entangling themselves in abstract disagreements.” Poland v.

Stewart, 117 F.3d 1094, 1104 (9th Cir. 1997) (citation omitted). It contains both

constitutional and prudential aspects. See Reno v. Cath. Soc. Servs., Inc., 509 U.S.

43, 57 n.18 (1993) (“[The] ripeness doctrine is drawn both from Article III

limitations on judicial power and from prudential reasons for refusing to exercise

jurisdiction.”). Constitutional ripeness requires that the case “present issues that are

definite and concrete” and “is often treated under the rubric of standing because

ripeness coincides squarely with standing’s injury in fact prong.” Safer Chems.,

Healthy Fams. v. EPA, 943 F.3d 397, 411 (9th Cir. 2019) (citation omitted). Thus,

“[w]here there is no danger of imminent and certain injury to a party, an issue has

not matured sufficiently to warrant judicial intervention.” Poland, 117 F.3d at 1104

(quotation marks and citation omitted). Prudential ripeness considers “the fitness of

the issues for judicial review and the hardship to the parties of withholding court

consideration.” Alaska Right to Life Pol. Action Comm. v. Feldman, 504 F.3d 840,

849 (9th Cir. 2007) (citation omitted).

The district court held that whether Pizzuto and Creech would be executed at

all was an “undetermined and open question, rendering the claims in this case

speculative and abstract.” The court rested its decision solely on the fact that both

8 Pizzuto and Creech have ongoing post-conviction litigation, the outcome of which

remains uncertain. We review de novo the district court’s dismissal for lack of

ripeness. Colwell v. Dep’t of Health & Hum. Servs., 558 F.3d 1112, 1121 (9th Cir.

2009). We reject the district court’s reasoning.

The district court’s bright-line rule effectively compels a result that we have

repeatedly and emphatically directed plaintiffs to avoid. In the district court’s view,

plaintiffs’ claims will become ripe only after their post-conviction proceedings have

concluded. At that time, the state will also be able to issue a death warrant. See

Harris v. Johnson, 376 F.3d 414, 417 (5th Cir. 2004) (per curiam) (“The denial of

certiorari [on a federal habeas petition] . . . entitle[s] the state to set a date for, and

proceed with, [plaintiff’s] execution.”). Thus, plaintiffs will frequently be litigating

their claims within the small window of time after their death warrants are signed

and before their execution dates (which, in Idaho, is thirty days). In situations like

this, where plaintiffs raise eleventh-hour challenges to their executions, courts have

routinely denied stays of execution because the plaintiffs did not raise their claims

earlier. See Gomez v. U.S. Dist. Ct. for N. Dist. of Cal., 503 U.S. 653, 653–54 (1992)

(per curiam); Cooper v. Rimmer, 379 F.3d 1029, 1032 & n.2 (9th Cir. 2004) (per

curiam); McKenzie v. Day, 57 F.3d 1461, 1468 (9th Cir. 1995). That, of course,

suggests that the claims would have been ripe had they been brought earlier. If we

accepted the district court’s reasoning, we would be presenting prisoners on death

9 row an unsolvable dilemma—if they file before post-conviction litigation concludes,

they are too early, and if they file after post-conviction litigation ends and the death

warrant issues, they are too late. And so perhaps for that reason, we have not applied

the ripeness rule advanced by the district court and have instead decided § 1983

claims similar to the ones here on the merits, even though plaintiffs had pending

post-conviction proceedings. See, e.g., First Amend. Coal. of Ariz., Inc. v. Ryan, 938

F.3d 1069, 1075–80 (9th Cir. 2019) (deciding the claims of Charles Hedlund, who

had pending post-conviction appeals at the time, see Hedlund v. Arizona, 140 S. Ct.

1270 (2020) (mem.)).

Idaho alternatively contends that plaintiffs’ claims are unripe because there is

no current death warrant for either Pizzuto or Creech.6 We agree that the issuance

or lack of a death warrant is important (perhaps crucial) to determining ripeness in

the context of other challenges to executions. When a prisoner claims that his

execution will violate the Eighth Amendment because he is not competent to be

executed, that claim becomes “‘unquestionably ripe’ only after it [is] clear that he

‘would have no federal habeas relief for his conviction or his death sentence, and the

Arizona Supreme Court issue[s] a warrant for his execution.’” Beardslee v.

6 Idaho raised this issue before the district court, but the court did not reach it. At the time, there was no current death warrant for either plaintiff. Idaho has since issued a death warrant for Pizzuto, but that does not alter our analysis because we conclude that the ripeness of plaintiffs’ claims does not depend on the issuance of a death warrant.

10 Woodford, 395 F.3d 1064, 1069 n.6 (9th Cir. 2005) (per curiam) (quoting Stewart v.

Martinez-Villareal, 523 U.S. 637, 643 (1998)). But that is because a Ford claim

depends on the mental competence of the prisoner at the time of his execution. See

Ford v. Wainwright, 477 U.S. 399, 406–07 (1986); In re Campbell, 874 F.3d 454,

460 (6th Cir. 2017) (per curiam) (“Under [Ford], the road from sanity to insanity

ordinarily being a one-way street, a sentence of death—although legally

pronounced—cannot legally be carried out.”). Without a death warrant or some

other indicator of the execution date, the court does not know what the petitioner’s

mental competence will be at the time of execution, and any judgment it makes

would be entirely hypothetical. See Tompkins v. Sec’y, Dep’t of Corr., 557 F.3d

1257, 1260 (11th Cir. 2009) (per curiam) (“[T]he facts to be measured or proven [in

a Ford claim]—the mental state of the petitioner at the time of execution—do not

and cannot exist when the execution is years away.”). Thus, the issuance of a death

warrant is essential to the ripeness of a Ford claim because only at that point does a

Ford claim become concrete. Cf. Jones v. Kelley, 854 F.3d 1009, 1013 (8th Cir.

2017) (per curiam) (noting that the ripeness rule for Ford claims “does not

necessarily extend to all claims that an inmate is unfit to be executed”).

Requiring a death warrant here would ignore Pizzuto and Creech’s claims in

this case. For example, they contend that Idaho’s failure to provide them sufficient

information now, and failure to have a “real” execution protocol now, violates their

11 constitutional rights now. Those claims may be meritless, but they are not unripe.

Whether Idaho’s refusal to respond to certain inquiries and supposed refusal to

promulgate a “real” execution protocol violate plaintiffs’ constitutional rights now

is readily determinable now. At argument, plaintiffs’ counsel agreed that the claims

allege “a constitutional right to know which path [the state is] going to choose [to

execute plaintiffs] right now as we speak.” A court simply needs to examine the law

to determine if plaintiffs’ alleged rights exist and, if so, find the facts necessary, if

any, to determine if those rights have been violated. Moreover, withholding judicial

consideration at this juncture would impose severe hardships on plaintiffs. Pizzuto

and Creech have been on death row for decades and are near the end of their appellate

and collateral proceedings. The window of opportunity for them to seek information

about their execution is small and shrinking by the day.7 And although Idaho argues

this case is unripe, we do not see how the state will suffer hardship if the court

decides plaintiffs’ claims now. If anything, an earlier decision would give the state

an opportunity to address any deficiencies in its revised SOP (assuming the

plaintiffs’ claims have some merit) prior to issuing a death warrant—or would have

given such an opportunity in the case of Pizzuto. See supra n.3.

7 Withholding decision on their claims until a death warrant issues would only narrow that window further—to the span of thirty days, or less. See Idaho Code 19- 2715(2).

12 That is not to say death-row inmates can always ask the court to review their

claims challenging the state’s failure to provide information. Inmates whose

sentences only recently became final might not face execution for decades, given the

lengthy nature of post-conviction proceedings that are available to them. If a court

were to decide claims at that early stage, its decision would have little impact as the

inmates’ (and the state’s) circumstances evolved. However, we need not decide

today where to draw the line between unripe and ripe claims for inmates who

contend that the state has violated their rights by withholding information. Wherever

that line is, Pizzuto and Creech’s claims are well past the point of ripeness. Idaho

acknowledges that both plaintiffs are nearing the end of their post-conviction

appeals, has given no indication it intends to halt plaintiffs’ executions, and has

recently issued a revised execution protocol that will almost certainly govern their

executions.

We find the presence of an extant execution protocol here a particularly

relevant marker for ripeness because many of plaintiffs’ claims assert rights to

execution-related information, and the protocol is how Idaho has chosen to convey

such information to death-row inmates.8 Although plaintiffs accurately state that

8 Plaintiffs bring a variety of other claims, some asserting that the absence of a protocol is a violation of their rights or that IDOC’s authority to issue protocols is itself unconstitutional. Those claims are clearly ripe whether or not Idaho has issued a revised protocol. However, as plaintiffs’ counsel acknowledged at oral argument,

13 this case is not a “method of execution” case, the ripeness rule we apply in method

of execution cases is instructive. When a prisoner claims that a particular method of

execution constitutes cruel and unusual punishment in violation of the Eighth

Amendment, that claim becomes ripe when the method is chosen. See Beardslee,

395 F.3d at 1069 n.6 (citing LaGrand v. Stewart, 170 F.3d 1158, 1159 (9th Cir.

1999)). In Poland v. Stewart, 117 F.3d 1094, we held that a prisoner’s claim that

execution by lethal gas violated the Eighth Amendment would be ripe only once the

prisoner affirmatively chooses lethal gas as the method of his execution, as opposed

to the state’s default method of execution by lethal injection. Id. at 1104. Absent

such a decision, the prisoner “does not currently face any risk of execution by lethal

gas and will face no hardship or immediate or certain danger if we do not review his

Eighth Amendment lethal gas claim at this time.” Id. Likewise, when plaintiffs

claim that a state’s execution protocol violates their rights to execution-related

information, the state’s decision to choose a protocol (the revised SOP) strongly

suggests the claim is ripe.9 At that point, the state establishes how it will execute

plaintiffs and how much information it will provide plaintiffs, which the court can

plaintiffs’ most important claims assert a right to information about how they will be executed (under multiple theories). 9 The protocol usually specifies the method of execution. We need not decide whether Idaho’s provision of four alternative methods of execution affects the ripeness of a method of execution claim, because plaintiffs have not alleged a method of execution claim.

14 then review. While it is true that the revised SOP may be revised again, that concern

applies to every government policy or law, and the mere possibility that a protocol

may change is not enough to make plaintiffs’ claims unripe.10 See Whitaker v.

Collier, 862 F.3d 490, 493 (5th Cir. 2017) (“[T]he current protocol is presumably

the means that Texas will select for their execution.” (quotation marks and citation

omitted)). Rather, there must be some indication that the extant protocol will not be

the protocol that governs plaintiffs’ executions, and no such suggestion exists here.

However, we note that the absence of an extant protocol is sometimes, but not

always, helpful for determining ripeness. We are wary of assigning dispositive

weight to the absence of an extant protocol, because to do so would encourage states

to withhold their protocols until the last moment to minimize judicial scrutiny. Thus,

there may be instances where the lack of a protocol has little correlation to the state’s

intention to execute the plaintiff, and thus has little bearing on ripeness. But in many

situations, the absence of a protocol simply suggests that the state does not expect to

imminently execute the plaintiff because it doesn’t yet know how it plans to conduct

the execution. In those cases, it would be difficult and premature for a court to

decide whether the state’s nonexistent plan has violated any of plaintiffs’ rights. See

Payton v. Cullen, 658 F.3d 890, 893 (9th Cir. 2011) (dismissing as unripe plaintiffs’

10 In Beardslee, we left open the question of how to determine ripeness when the execution protocol is subject to change. 395 F.3d at 1069 n.6.

15 challenge to California’s execution protocol, because the extant protocol had been

judicially invalidated and no new protocol had been issued); Andrews v. Davis, 944

F.3d 1092, 1122 n.16 (9th Cir. 2019) (en banc). Thus, it is possible that plaintiffs’

challenges to SOP 135 were unripe when first filed, because IDOC had allegedly

represented it would not proceed under SOP 135 to execute plaintiffs and had not

issued a replacement protocol. But that is no longer the case.

Idaho acknowledges that both Pizzuto and Creech are close to exhausting their

post-conviction appeals and intends to proceed with plaintiffs’ executions.11

Plaintiffs claim the state’s refusal to provide certain information violates their rights

now. And the state has issued a revised execution protocol, from which the court

can readily determine now whether plaintiffs’ alleged rights, if they exist, have been

violated. In these circumstances, plaintiffs’ claims are ripe.

III.

Given the unusual timeline of events in this case, we must also consider

mootness. “[W]e have an independent obligation to address whether a case is moot

because it goes to the Article III jurisdiction of this court.” Council of Ins. Agents

& Brokers v. Molasky-Arman, 522 F.3d 925, 933 (9th Cir. 2008). “A claim is moot

when the issues presented are no longer live or the parties lack a legally cognizable

interest in the outcome.” Id. (citation omitted). Dismissal on mootness grounds is

11 Counsel for Idaho conceded at argument that plaintiffs’ executions are imminent.

16 “justified only if it [is] absolutely clear that the litigant no longer ha[s] any need of

the judicial protection that it sought.” Id. (citation omitted).

When plaintiffs initially filed suit, they did so with the understanding that the

extant protocol, SOP 135, would not be used for their executions. Because Idaho

had not issued a revised SOP at that time, plaintiffs raised several claims alleging

that the lack of any execution protocol violated their rights. Idaho has now issued a

revised SOP, so we find these claims moot. The injunctive relief that plaintiffs

seek—enjoinment of executions until IDOC issues a revised protocol—is no longer

necessary. In addition, we have no basis to think that IDOC would create a situation

where there is no execution protocol in place for these plaintiffs. See Am. Diabetes

Ass’n v. U.S. Dep’t of the Army, 938 F.3d 1147, 1152 (9th Cir. 2019) (“Where the

challenged conduct has been sufficiently altered so as to present a substantially

different controversy . . ., there is no basis for concluding that the challenged conduct

[will be] repeated.” (cleaned up)). Thus, the court’s resolution of plaintiffs’ claims

alleging that the lack of a protocol violates certain rights would serve no legally

cognizable purpose. See Ctr. for Biological Diversity v. Lohn, 511 F.3d 960, 964

(9th Cir. 2007).

IV.

We now apply these principles of ripeness and mootness to each of plaintiffs’

specific claims. Because “ripeness is peculiarly a question of timing, it is the

17 situation now rather than the situation at the time of the [d]istrict [c]ourt’s decision

that must govern.” Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 140 (1974).

Claim One alleges that plaintiffs have an “enforceable right of access to

certain government proceedings and records that is secured by the First and

Fourteenth Amendments,” and that IDOC has violated that right by failing to provide

them with execution-related information.12 This claim is ripe.13 Plaintiffs argue that

they have a First Amendment right to execution-related information, which IDOC is

currently violating. Whether or not plaintiffs possess such a right is a legal question,

and whether such a right (if it exists) has been violated depends on the content of the

revised SOP, which is now available. In Claim One, plaintiffs also allege that the

right of access to governmental proceedings includes their lawyers’ “right to access

the execution chamber, the right to witness the entire execution procedure, and the

right to be permitted access to cameras and phones during the execution.” Although

12 This is the same set of information plaintiffs initially sought in their December 2018 letter to the Director. Specifically, the information concerns: (1) the number, amount, and type of drugs to be used, (2) how the drugs were made, how the drugs were/will be obtained, their source, amounts, expiration date, how they were acquired/transported/stored/tested, when IDOC [will obtain] the drugs, etc., (3) when a new version of SOP 135 will be issued, (4) whether witnesses will be able to observe the insertion of the IVs, (5) procedures for IV placement/length, (6) who will participate in the execution, what is their training/qualifications, and how will they be chosen, (7) whether there will be a consciousness check and the procedure for it, and (8) procedures for botched executions. 13 Of course, to the limited extent this claim seeks information about “when a new version of SOP 135 will be issued,” we find that clearly moot.

18 this part of Claim One is more in the nature of a pre-enforcement challenge, we

presume the revised SOP will govern plaintiffs’ executions, so they will suffer

certain injury if their allegations are true. And because judicial resolution of these

allegations is possible now in light of the revised SOP, we find this claim ripe.

Claim Two seeks much the same information as Claim One, except under the

theory that the deprivation of such information “denies the plaintiffs’ First

Amendment right to petition the government for redress of grievances.” Therefore,

this claim is ripe for the same reason Claim One is ripe: plaintiffs allege a current

constitutional violation caused by the SOP’s lack of information, which is fit for

judicial resolution.

Claim Three alleges that the “absence of a real execution protocol constitutes

cruel and unusual punishment in violation of the Eighth Amendment.” Plaintiffs

base this claim on the fact that “there is no IDOC protocol in place mandating

procedures that the defendants must follow when carrying out an execution.”

Because that factual allegation is no longer true, and there is now a revised SOP, this

claim is moot.14

14 It may be possible to interpret Claim Three as alleging that the SOP’s failure to provide the information that plaintiffs seek (as opposed to the lack of an execution protocol at all) is itself cruel and unusual punishment. That claim would be ripe for the same reasons that Claim One and Claim Two are ripe.

19 Claim Four alleges that Idaho’s “deprivation of information violates the

plaintiffs’ Fourteenth Amendment right to due process.” Plaintiffs contend that the

state has denied them procedural due process by failing to provide them “fair notice

of the procedures to be used” in their execution and that “the lack of information

raises a procedural barrier to challenging the constitutionality of IDOC’s execution

process.” For the most part, this claim bases its due process violation on the absence

of “fair notice,” which we interpret to mean the lack of an execution protocol.

Therefore, we find this claim mostly moot because plaintiffs are now on notice of

the revised SOP and can challenge its legality. However, to the extent Claim Four

asserts a due process violation premised on the SOP’s failure to provide execution-

related information, we find that claim is ripe (and not moot). That is because the

plaintiffs allege the lack of information is itself the denial of due process. If the

allegations are founded, then withholding decision of this issue would continue to

deny plaintiffs due process.

Claim Five alleges two different equal protection violations. First, plaintiffs

claim that the “absence of a real execution protocol” violates the Equal Protection

Clause, because of “the variances [in] execution procedures that invariably exist if

no protocols are currently in place whatsoever.” The revised SOP makes this portion

of Claim Five moot. Second, plaintiffs suggest that Idaho’s “practice of essentially

creating a new protocol for each condemned inmate as soon as his execution is

20 imminent” is itself an equal protection violation. If so, this allegation is ripe because

whether Idaho’s practice of promulgating protocols violates the Equal Protection

Clause is already concrete and fit for resolution.

Claim Six alleges that the “deprivation of information violates the plaintiffs’

federal statutory right to the assistance of counsel.” The relevant statute is 18 U.S.C.

§ 3599, which entitles indigent death-row inmates to representation in post-judgment

proceedings and clemency petitions. See 18 U.S.C. § 3599(a). Plaintiffs claim they

would seek clemency if the execution protocol could cause an unduly painful death,

but they cannot do that if the state “tell[s] them essentially nothing about those

[execution] plans.” Thus, we understand Claim Six to allege that the lack of an

execution protocol deprives plaintiffs of their statutory rights, in which case the

claim is moot.

Claim Seven alleges that the “absence of legislative guidelines for executions

violates the separation of powers under the Idaho Constitution.” That is, plaintiffs

contend that the Director’s statutory authorization to determine the procedures of

executions is an unconstitutional delegation of legislative power. Taking those

allegations as true, plaintiffs will certainly suffer injury if they are executed under

an unlawful delegation of power. Whether or not that delegation is lawful is a

question the court is well positioned to answer now. Claim Seven is ripe.

21 Claim Eight alleges that “IDOC’s refusal to promulgate a protocol violates its

statutory obligations” under Idaho Code § 19-2716. With the promulgation of the

revised SOP, this claim is moot.

Claim Nine alleges that the “deprivation of information creates a substantial

risk of serious harm in violation of the Eighth Amendment.” This claim is difficult

to comprehend in its current form. We construe it to mean that the absence of a

protocol violates the Eighth Amendment, and with that understanding, we find this

claim moot.

In summary, we find Claim One, Claim Two, part of Claim Four, part of

Claim Five, and Claim Seven ripe. We find the rest moot. In addition, we note that

plaintiffs’ state law claims suffer from an additional problem. “Unless there is a

breach of constitutional rights, . . . § 1983 does not provide redress in federal court

for violations of state law.” Samson v. City of Bainbridge Island, 683 F.3d 1051,

1060 (9th Cir. 2012) (alteration in original) (citation omitted). Plaintiffs allege their

state law claims independent of any federal constitutional violations, so § 1983 is

not the appropriate vehicle to bring those claims. Instead, the plaintiffs asked the

district court to exercise supplemental jurisdiction over these state law claims.

However, they failed to so plead in their complaint. Thus, we presently lack

jurisdiction over plaintiffs’ state law claims for this additional reason, although they

22 may rectify this mistake by amendment. See Heinsohn v. Carabin & Shaw, P.C.,

832 F.3d 224, 232–33 (5th Cir. 2016).

V.

There is no doubt that the merits of plaintiffs’ claims are important and

deserve speedy resolution. However, IDOC’s decision to issue a revised SOP (on

the eve of argument) affects not only the ripeness of plaintiffs’ claims, but potentially

the substance of their claims as well. Thus, we reverse and remand this case to the

district court. On remand, plaintiffs will likely seek (and should be permitted) to

amend their complaint to reallege their ripe claims against the revised SOP and fix

the flaws in their state law claims.

Plaintiffs, however, may be unable to amend their complaint in a way that

advances any colorable claims.15 Plaintiffs’ First Amendment claims appear

squarely foreclosed by our caselaw. In First Amendment Coalition of Arizona, Inc.

15 We feel it appropriate to discuss the merits now, in advance of plaintiffs’ decision to amend their complaint on remand. As plaintiffs have repeatedly argued to both the district court and on appeal, time is particularly of the essence here. This urgency has only increased with Idaho’s decision to issue, during the pendency of this appeal, first a revised protocol and now a death warrant for Pizzuto. Further, the merits of plaintiffs’ claims were briefed before the district court, and the merits involve predominantly legal questions that do not require any factfinding. Courts regularly discuss the merits of claims in considering the futility of amendment, see Hooper v. Shinn, 985 F.3d 594, 622 (9th Cir. 2021), or as part of an alternative holding, see Whitaker, 862 F.3d at 496 & n.14. Here, our discussion of the merits of plaintiffs’ ripe claims may inform how they choose to amend their complaint, and our discussion of the moot claims provides alternative reasons why they fail.

23 v. Ryan, 938 F.3d 1069, we held that neither the First Amendment right of access to

governmental proceedings nor the right of access to courts “entitle[s] the plaintiffs

to information regarding execution drugs and personnel.” Id. at 1080–81.16 At

argument, plaintiffs’ counsel suggested that First Amendment Coalition is

distinguishable because Pizzuto and Creech do not even know what drug will be

used in their execution. But that distinction seems unlikely to matter given our

reasoning in First Amendment Coalition that “the First Amendment does not

mandate a right of access to government information or sources of information

within the government’s control.” Id. at 1079 (cleaned up). Further, we note that

Idaho’s revised SOP permits only four methods of execution, with significant

overlap in the drugs used for each method. So although plaintiffs might not know

yet which of the four methods the state may choose, they know the state is restricted

to a closed and limited universe of drugs, and they know what those drugs are.

Plaintiffs additionally seek to extend the right of access to governmental

proceedings that we discussed in First Amendment Coalition to include their

counsel’s right to access cameras and phones during the execution. See id. at 1075.

We find it implausible that the First Amendment right of access to governmental

16 Plaintiffs’ second claim is framed as a right to petition the government for redress of grievances, but it primarily asserts a right of access to the courts. See Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989) (“The right of access to the courts is subsumed under the first amendment right to petition the government for redress of grievances.”).

24 proceedings gives the public the right to videotape, photograph, or otherwise record

those proceedings. See Rice v. Kempker, 374 F.3d 675, 678–79 (8th Cir. 2004); Wis.

Interscholastic Athletic Ass’n v. Gannett Co., 658 F.3d 614, 627 (7th Cir. 2011). We

are also uncertain why the right of access to governmental proceedings entitles

plaintiffs’ counsel to have access to phones in the witness area. If plaintiffs wish

their counsel to have phones so that they can contact the court during executions,

that claim would be properly alleged under the First Amendment right of access to

courts. But see Arthur v. Comm’r, Ala. Dep’t of Corr., 857 F.3d 1157, 1160 (11th

Cir. 2017) (Hull, J., concurring in denial of rehearing en banc) (“[T]his [c]ourt’s

panel opinion emphasized that [plaintiff] failed to cite any authority standing for the

proposition that visitors . . . have any independent constitutional right to telephone

access inside the execution viewing room.”).

It is true that in First Amendment Coalition we left open the possibility that

plaintiffs “may be able to assert a procedural due process right to obtain the

information they seek.” 938 F.3d at 1080. But see Jones v. Comm’r, Ga. Dep’t of

Corr., 812 F.3d 923, 925–26 (11th Cir. 2016) (Marcus, J., concurring in the denial

of initial hearing en banc) (finding inmates have no protected liberty interest in

disclosure of information about executions); Phillips v. DeWine, 841 F.3d 405, 420

(6th Cir. 2016) (holding that “no constitutional right exists to discover grievances”);

Zink v. Lombardi, 783 F.3d 1089, 1109 (8th Cir. 2015) (en banc) (per curiam);

25 Sepulvado v. Jindal, 729 F.3d 413, 418–20 (5th Cir. 2013). Even if such a due

process right exists, we find it hard to imagine that it applies in this situation. Our

due process suggestion was prompted by a particular concern with “Arizona’s

checkered past with executions,” First Amend. Coal., 938 F.3d at 1080, which

included last-minute changes to the protocol, an extraordinary degree of secrecy

during and after the execution, and a record of troubling executions, see Lopez v.

Brewer, 680 F.3d 1068, 1083 (9th Cir. 2012) (Berzon, J., concurring in part and

dissenting in part). None of those circumstances exist here. Idaho has issued an

execution protocol well in advance of any death warrant in this case, and there is no

indication the state will deviate from the procedures outlined in the revised SOP.

Those procedures provide for a relatively transparent execution by, for example,

ensuring that witness areas have full access to the audio of the execution and

requiring the prison warden to “document every aspect of the execution proceeding.”

And although plaintiffs describe the unusual process by which they claim Idaho has

previously obtained execution drugs, they have not alleged any facts that suggest

Idaho’s past executions caused unduly painful deaths.17

17 Of course, Idaho will continue to be bound by not only “its constitutional obligation to ensure that the implementation of its new protocol does not run afoul of the Eighth Amendment’s proscription of cruel and unusual punishment, but also . . . its moral obligation to carry out executions with the degree of seriousness and respect that the state-administered termination of human life demands.” Jackson v. Danberg, 594 F.3d 210, 230 (3d Cir. 2010).

26 Nor do any of plaintiffs’ other ripe theories appear viable. To the extent

plaintiffs claim that Idaho’s execution protocol allows so much variance in execution

procedures that it violates the Equal Protection Clause, we have already rejected

such a theory. In Towery v. Brewer, 672 F.3d 650 (9th Cir. 2012) (per curiam), we

held that “[a]bsent any pattern of generally exercising the discretion in a particular

manner while treating one individual differently and detrimentally, there is no basis

for Equal Protection scrutiny under the class-of-one theory.” Id. at 660–61

(emphasis in original). Plaintiffs allege only that they are being treated differently,

not that they are “being treated less favorably than others generally are.” Id. at 661;

see also Lopez, 680 F.3d at 1076. In addition, plaintiffs’ claim under the Idaho

Constitution has been soundly rejected by the Idaho Supreme Court, which held that

the Director’s authorization to promulgate execution procedures is not an improper

delegation of legislative power. State v. Osborn, 631 P.2d 187, 201 (Idaho 1981).18

Finally, although we dismiss several of plaintiffs’ claims as moot, we note

that those claims also rested on implausible theories. We have never suggested the

18 In Osborn, the Idaho Supreme Court considered the 1978 version of Idaho Code § 19-2716. That version was identical in all relevant respects to the present statute— it prescribed lethal injection and gave the Director the authority to “determine the substance or substances to be used and the procedures to be used in any execution.” 1978 Idaho Sess. Laws 140. In 1982, the Idaho legislature amended § 19-2716 to permit the Director to conduct executions by firing squad, but that amendment was repealed in 2009, leaving lethal injection as the sole method of execution. See 2009 Idaho Sess. Laws 228.

27 Eighth Amendment imposes an affirmative obligation on the state to issue execution

protocols. Cf. Payton, 658 F.3d at 893 (dismissing Eighth Amendment claim in the

absence of any protocol as unripe). After all, it is hard to imagine how the lack of a

protocol is cruel and unusual punishment. Cf. Smith v. Mahoney, 611 F.3d 978, 998

(9th Cir. 2010) (rejecting a Lackey claim alleging that prolonged time on death row

constitutes cruel and unusual punishment). Nor have we located such an obligation

in the Equal Protection Clause. Plaintiffs suggest such a right might be found in 18

U.S.C. § 3599, but that statute does not “empower the court to order third-party

compliance” to aid plaintiff’s counsel in seeking clemency. Leavitt v. Arave, 682

F.3d 1138, 1141 (9th Cir. 2012) (per curiam). And although Idaho Code § 19-2716

provides that the Director “shall determine the procedures to be used in any

execution,” we do not read that provision as requiring the Director to always

maintain an extant execution protocol.

That said, we emphasize that our view of the merits of plaintiffs’ theories has

no bearing on the ripeness of their claims. Ripeness is simply a question of “when.”

For the mooted claims, it is too late, but for the remaining claims, the time for judicial

resolution is now.

REVERSED and REMANDED.

28 Gerald Ross Pizzuto, Jr. and Thomas E. Creech v. Josh Tewalt, Director, Idaho FILED MAY 12 2021 Department of Correction, and Brad Little, Idaho State Governor, 20-36044 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS GOULD, Circuit Judge, concurring in part, and dissenting in part:

I concur in Judge Bennett’s majority opinion insofar as it holds that Claim

Three, part of Claim Four, part of Claim Five, Claim Six, Claim Eight, Claim

Nine, and the state law claims of Appellants’ complaint are moot. 1 I also concur in

the judgment with respect to Pizzuto’s appeal because a death warrant has issued.

I respectfully dissent, however, with respect to Creech’s appeal, and would affirm

the district court’s dismissal of his claims for lack of ripeness. As the district court

explained, appellants Pizzuto and Creech “do not dispute the constitutionality of

lethal injection execution or the legitimacy of their sentences.” Both of them are,

of course, entitled to fair procedure in accord with law, and if they want to

challenge the method of execution, they should have a reasonable time to make

their challenge after the State of Idaho has decided to proceed with execution. But

in my view, we lack Article III jurisdiction to decide Creech’s appeal so long as it

is uncertain whether an execution will proceed and generally how it is to proceed.

The ripeness doctrine is “drawn both from Article III limitations on judicial

power and from prudential reasons for refusing to exercise jurisdiction.” Reno v.

1 I also agree with the Majority that we lack jurisdiction over Plaintiffs’ state law claims for the additional reason that Plaintiffs failed to plead a basis for jurisdiction in their complaint. Cath. Soc. Servs., Inc., 509 U.S. 43, 57 n.18 (1993). It is designed “to separate

matters that are premature for review because the injury is speculative and may

never occur from those cases that are appropriate for federal court action.”

Portman v. County of Santa Clara, 995 F.2d 898, 902 (9th Cir. 1993) (internal

quotation marks omitted). “[T]hrough avoidance of premature adjudication,” the

doctrine prevents courts “from entangling themselves in abstract disagreements.”

Abbott Lab’ys v. Gardner, 387 U.S. 136, 148 (1967), abrogated on other grounds

by Califano v. Sanders, 430 U.S. 99, 97 (1977).

I agree with the district court reasoning as to the lack of ripeness when the

district court made its decision, for the following reasons: First, standing is a

“threshold question” and is “a necessary element of federal-court jurisdiction.”

City of South Lake Tahoe v. Cal. Tahoe Reg’l Planning Agency, 625 F.2d 231, 233

(9th Cir. 1980). Second, “[c]onstitutional ripeness is often treated under the rubric

of standing because ripeness coincides squarely with standing’s injury in fact

prong.” Safer Chemicals, Healthy Families v. EPA, 943 F.3d 397, 411 (9th Cir.

2019) (citation omitted). Third, because Creech seeks information regarding an

execution that is entirely presupposed, deciding his claims at this stage would be

premature. I further agree with the district court that when the State of Idaho

moved to dismiss Appellees’ complaint, “[t]he ultimate question of whether the

two men will even be executed remain[ed] an undetermined and open question.”

2 Since then, of course, Pizutto’s death warrant has issued, and the majority

correctly allows his claims to proceed. But nothing has changed with respect to

Creech’s appeal. He may, for instance, obtain appellate relief in his other pending

cases. Idaho’s governor may decide to grant clemency; its legislature could

intervene to avoid a death warrant. Creech’s execution is far from a foregone

conclusion. His claims are still not yet ripe.

Our court would do well to follow the rule stated by the Supreme Court in

Texas v. United States: “A claim is not ripe for adjudication if it rests upon

contingent future events that may not occur as anticipated, or indeed may not occur

at all.” 523 U.S. 296, 300 (1998) (cleaned up). The lack of ripeness practically

means that Creech’s claims were brought too soon for us to decide them and that

they were properly dismissed without prejudice—although they could be advanced

later when the case is ripe.

As for when the claims for information will become ripe, I do not agree with

all of the district court’s rationale insofar as the district court thought the case

could not be ripe until all appeals had been fully resolved. The reason that I cannot

agree with this is that in a system of federalism where the State of Idaho controls

its procedures, nothing would guarantee that the State would not commence

planning an implementation of the death penalty execution while some appellate

issue remained pending. So that rationale in my view went too far.

3 But on the other hand, it cannot be fairly said that execution is certain to

proceed before the State of Idaho issues a death warrant. That is the key point

before which execution cannot proceed, though after it issues, many tasks are to be

accomplished by certain times. Among these is a specific requirement that

between thirty and twenty-one days before the execution, the State of Idaho’s

Administrative Team must “[e]nsure that execution chemicals have been purchased

or that sources have been established.” Under this procedure, there will always be

at least three weeks before execution when the State of Idaho could give notice to

the prisoner and the prisoner’s counsel of record about the chemicals purchased or

planned for in the execution. To be sure, twenty-one days is not a long time for

counsel to evaluate their potential claims and to get the matter of any federal

constitutional claim before a federal court. But given the ability of courts to issue

restraining orders ex parte or grant preliminary injunctions after giving notice to

the state and an opportunity to be heard, and given the ability of courts to decide

matters upon expedited or emergency motions, it seems to me that there is no

reason any challenge to the specific execution plans could not be fairly asserted

within twenty-one days after chemicals were ordered or planned for use with

sources established. That is a tight deadline for legal action, but in my view, both

Article III and the Supreme Court’s precedent demand it. A federal court request

for information about execution procedures cannot properly proceed before Idaho

4 has made its ultimate decision by issuing a death warrant and serving it upon the

Idaho Department of Correction.2

Even if the rationale chosen by the district court was not entirely correct in

all of its details, I believe the district court was correct that the case was unripe

because of contingencies that could occur avoiding the presupposed execution. As

the district court correctly observed, it is not our proper province to predict how

other courts will decide issues pending before them, much less do we have any

basis to predict how the Governor or legislature of the State of Idaho may decide

any issue placed before them. A court could grant relief, a legislature could alter

its law, or the Governor could decide to exercise his discretionary power of

clemency. In my view, it does not make sense in capital cases to proceed to

examine method of execution before there has been a death warrant, which

crystalizes the immediacy of planned and lawful execution.

By interceding at this point, the majority risks the possibility that its

rationale would only lead the State into a more entrenched position that would, as a

practical matter, make legislative action or clemency from the Governor less likely.

2 If the State of Idaho wants to avoid the risk of last minute potential stays of execution and necessary changes of plans, with all the stress that creates for all persons concerned, the condemned prisoners along with their families and the Governor of Idaho and the Director of the Idaho Department of Correction, along with their staff, then it would be prudent for the Idaho Department of Correction to provide notice at the earliest feasible opportunity of the planned chemical usage for execution.

5 Given the experience in several other states where Governors put death penalties

on hold pending more study or proceedings, I don’t share the majority’s seeming

certainty that the death penalty will proceed.

Under our precedent, we may affirm on any ground supported by the record.

McQuillion v. Schwarzenegger, 369 F.3d 1091, 1096 (9th Cir. 2004). I would

exercise our discretion to affirm in part the dismissal of Creech’s claims based on

the record showing there has been no death warrant issued, while at the same time

through our supervisory power suggest that the State give notice of its planned

procedure at the earliest practical time not later than twenty-one days before the

date of the scheduled execution.

That is not a perfect solution, but there will never be a perfect solution in a

case where the ultimate penalty of death is to be administered and prisoners or

their family or friends still have any question about guilt, propriety of sentence, or

method of execution. To me the most sensible approach here is to preclude suit

until a death warrant issues, if that occurs, and then to use expedited judicial

procedures to gain a final ruling ahead of the planned execution date and time. For

that reason, I agree with the majority’s conclusion that Claim One, Claim Two,

part of Claim Four, part of Claim Five, and Claim Seven are ripe with respect to

Pizzuto, for whom the State of Idaho has issued a death warrant. But because the

State has not yet issued a death warrant for Creech, I cannot join my colleagues in

6 concluding that any of his claims are ripe.

Also, it should not be considered that proceeding with a lawsuit seeking

information about execution procedure before a death warrant issues has no cost to

parties or the State. The State of Idaho will have to marshal its legal resources at

significant cost to respond to any complaint filed at this stage before a death

warrant issues. There is also a cost to the federal court system, at expense of

federal taxpayers, when the federal court system needs to address lawsuits

requesting information about death penalty procedures before a death warrant

issues.

It is perhaps correct that the legal standard for ripeness does not require

absolute certainty, but only a reasonable probability that the execution will occur.

But still, to proceed before a death warrant is to put the cart before the horse, and it

may be an impediment to actions by the legislature or the Governor that could

avoid death. As I have said, awaiting a death warrant is not a perfect solution, but

in my view, it is a superior procedure to proceeding at this stage with litigation

about a presupposed execution, and I am not aware of any Supreme Court

precedent that would preclude our court upon an en banc rehearing from adopting

the view of ripeness that I have suggested.