Paul Rhoades v. Brent Reinke

Opinion

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

PAUL EZRA RHOADES,  Petitioner-Appellant, No. 11-35940 v. D.C. No. BRENT REINKE, RANDY BLADES,  CV-11-0000445- DOES 1-50, and/or UNKNOWN REB EXECUTIONERS, OPINION Respondents-Appellees.  Appeal from the United States District Court for the District of Idaho Ronald E. Bush, Magistrate Judge, Presiding*

Submitted, November 16, 2011** San Francisco, California

Filed November 16, 2011

Before: Ronald M. Gould, Jay S. Bybee, and Carlos T. Bea, Circuit Judges.

Per Curiam Opinion

*By stipulation of the parties, Magistrate Judge Ronald E. Bush pre- sided over Rhoades’s motion. **The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

20433 RHOADES v. REINKE 20435

COUNSEL

Oliver W. Loewy and Teresa A. Hampton, Capital Habeas Unit, Federal Defenders Services of Idaho, Inc., for appellant Paul Ezra Rhoades.

Lawrence G. Wasden, Attorney General of Idaho, Mark A. Kubinski, Krista L. Howard, and L. LaMont Anderson, Dep- uty Attorneys General of Idaho, Idaho Department of Correc- tion, for appellees Brent Reinke et al.

OPINION

PER CURIAM:

We consider Paul Ezra Rhoades’s appeal from the district court’s denial of his emergency motion for preliminary 20436 RHOADES v. REINKE injunction or stay of execution. The district court held that the Idaho Department of Correction (“IDOC”) has provided appropriate safeguards to ensure that there is not a substantial risk of serious harm to Rhoades in the form of severe pain during the administration of the drugs used in Idaho’s three- drug lethal injection protocol; that the safeguards are substan- tially similar to those contained in execution protocols approved by the Supreme Court and by this court; that the IDOC is not required to implement a different, one-drug pro- tocol in this execution; that Rhoades will suffer irreparable harm in the absence of preliminary relief; that the equities of the case do not require a different result; and that the public interest favors denial of the request for a stay of the execution. We conclude that Rhoades has not shown that he is likely to succeed in his challenge to the protocol. Hence he is not enti- tled to a stay, and we affirm.

Rhoades is scheduled to be executed by lethal injection by the IDOC on Friday, November 18, 2011. He filed his emer- gency motion for preliminary injunction or stay of execution in the district court on October 28, 2011. To obtain relief, Rhoades “must demonstrate (1) that he is likely to succeed on the merits of such a claim, (2) that he is likely to suffer irrepa- rable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest.” Beaty v. Brewer, 649 F.3d 1071, 1072 (9th Cir. 2011) (citing Winter v. Natural Res. Def. Coun- cil, Inc., 555 U.S. 7, 20 (2008)). Rhoades claims he is entitled to relief. We disagree and explain why we reject his argu- ments.

We review the district court’s denial of Rhoades’s emer- gency motion for preliminary injunction or stay of execution for abuse of discretion. Beardslee v. Woodford, 395 F.3d 1064, 1068 (9th Cir. 2005). “Our review is limited and defer- ential.” Id. (quoting Southwest Voter Registration Educ. Proj- ect v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc)). “We review underlying legal issues de novo and findings of RHOADES v. REINKE 20437 fact for clear error.” Grocery Outlet Inc. v. Albertson’s Inc., 497 F.3d 949, 950-51 (9th Cir. 2007).

[1] Death penalty cases are wrenchingly difficult to assess because of the superordinately high stakes for the prisoner whose execution is scheduled and for society which plans to take the prisoner’s life as a sanction for the murder of one or more of its citizens. But the key rules that govern this appeal have already been set. The Supreme Court has approved of the death penalty as a continuing option for states that choose to invoke this supreme punishment. Gregg v. Georgia, 428 U.S. 153, 168-69 (1976). Many, but not all, states have cho- sen to maintain the death penalty, including Idaho. The Supreme Court has made clear that this is permissible if the standards it has invoked are followed. A three-drug execution protocol in Kentucky was approved by the Supreme Court in Baze v. Rees, 553 U.S. 35 (2008), which signaled that similar procedures would be upheld. Relying on Baze, our circuit approved a three-drug execution protocol in Arizona in Dick- ens v. Brewer, 631 F.3d 1139 (9th Cir. 2011). We consider Baze and Dickens to be controlling absent a showing of mate- rial difference. These cases might permit us to give prelimi- nary relief if Rhoades made a persuasive case that he has shown a substantial risk of serious harm from the protocol, which is risk of gratuitous pain as contrasted with risk of exe- cution, the object of the protocol. So this appeal in essence comes down to the question whether the procedure Idaho uses is similar to or materially different from the procedures approved in Baze and Dickens. If its protocol is similar to the approved three-drug protocols, the existence of an alternative one-drug protocol is not dispositive. We turn to Rhoades’s contentions.

Rhoades contends that Idaho’s lethal injection protocol, Standard Operating Procedure 135.02.01.001 (“SOP 135”), is not substantially similar to the court-approved three-drug lethal injection protocols in Baze and Dickens. In Baze, the Supreme Court considered whether Kentucky’s three-drug 20438 RHOADES v. REINKE lethal injection protocol violated the Eighth Amendment’s prohibition of cruel and unusual punishment. The Court con- cluded that “to prevail on such a claim there must be a sub- stantial risk of serious harm, an objectively intolerable risk of harm that prevents prison officials from pleading that they were subjectively blameless for purposes of the Eighth Amendment.” Baze, 553 U.S. at 50 (internal quotation marks omitted). The Court upheld the Kentucky protocol, which involved the sequential administration of sodium pentothal (also known as sodium thiopental), pancuronium bromide, and potassium chloride, concluding that Kentucky’s inclusion of safeguards to ensure the effective administration of the drugs mitigated any substantial risk of serious harm. Id. at 56 (“In light of these safeguards, we cannot say that the risks identified by petitioners are so substantial or imminent as to amount to an Eighth Amendment violation.”).

In Dickens, we addressed the constitutionality of Arizona’s three-drug lethal injection protocol. We held that in accor- dance with the Supreme Court’s decision in Baze, Arizona’s protocol fell within the “safe harbor” of lethal injection proto- cols that are “substantially similar” to the Kentucky protocol. Dickens, 631 F.3d at 1146. SOP 135 was based on, and is nearly identical to, Arizona’s lethal injection protocol. What minor differences do exist are not applicable to the way the protocol is being implemented in this case.1 1 There are three differences between the two protocols. First, Arizona’s protocol requires at least one year of professional experience for each member of the Medical Team, whereas SOP 135 only requires at least one year of experience for Injection Team members. Second, Arizona’s proto- col requires monitoring by microphone and video, in addition to an indi- vidual present in the execution chamber, whereas SOP 135 requires monitoring by microphone and one or more other forms of monitoring in addition to an individual present in the execution chamber. These two dif- ferences are irrelevant to this case, because each member of the SOP 135 Medical Team that will be used in Rhoades’s execution has at least 15 years of professional experience, and video monitoring will be used. Finally, Arizona’s protocol as approved in Dickens involves the use of only sodium pentothal whereas SOP 135 allows for pentobarbital to be used to anesthetize the inmate if sodium pentothal is unavailable. This dif- ference is also irrelevant here because we approved the use of pentobarbi- tal as an alternative to sodium pentothal in Beaty, 649 F.3d at 1072. RHOADES v. REINKE 20439 Rhoades’s primary contention is that SOP 135 violates the Eighth Amendment because it lacks adequate safeguards. In Baze, the Supreme Court concluded the following safeguards within Kentucky’s protocol rendered the protocol in accord with the Eighth Amendment’s prohibition against cruel and unusual punishment:

1) members of the IV team, responsible for estab- lishing the IV lines, were required to have at least one year of professional experience as a certified medical assistant, phlebotomist, EMT, paramedic, or military corpsman;

2) the execution team members, including the IV team members, were required to participate in at least 10 practice sessions per year, encompassing a complete walk-through of the execution procedures and the siting of catheters into volunteers;

3) the IV team was required to establish “redundant measures,” setting up both primary and backup lines and preparing two sets of the lethal injection drugs before the execution commences; and

4) the warden and deputy warden were to be present in the execution chamber with the prisoner to watch for signs of IV problems (consciousness checks).

Baze, 553 U.S. at 56-57.

Here, in addition to the final version of SOP 135, the IDOC also proffered the affidavit and testimony of Jeff Zmuda, Dep- uty Chief of the Bureau of Prisons, as further evidence of the procedures that are actually to be used for Rhoades’s execu- tion, to show that these procedures include safeguards in line with those approved by the Court in Baze. Zmuda, as Deputy Chief, is in charge of planning, preparing, and implementing the SOP 135 protocol. His testimony is relevant to show the 20440 RHOADES v. REINKE actual protocol that will be implemented, which in turn bears on the likelihood that Rhoades will suffer severe pain. Any injunctive relief must be tailored to the specific harm being complained of, which depends upon the specific facts in this situation that might create the constitutional harm. See Gil- more v. California, 220 F.3d 987, 1005 (9th Cir. 2000); cf. Dickens, 631 F.3d at 1142 & n.2 (considering the Arizona protocol as amended by a Joint Report and the addition of provisions during the course of litigation).

[2] The district court found that Zmuda credibly testified that the following safeguards are in place for Rhoades’s exe- cution:

1) members of the SOP 135 Medical Team and Injection Team responsible for IV insertion had the requisite experience. Indeed, the member with the least amount of experience had 15 years of experi- ence in his/her professional field;2

2) the Medical and Injection Team members (except for the Medical Team Leader) had ongoing, regular experience establishing IV catheters, in line with the experience required in Baze;

3) sufficient training practices and implementation of such practices, namely Escort, Medical, and Injec- tion Team members have been receiving regular training in the execution procedures, in the execution unit itself, since October 20, 2011.3 Between October 2 As noted above, SOP 135 only requires at least one year of experience for Injection Team members, but Zmuda credibly testified each member of the SOP 135 Medical Team that will be used in Rhoades’s execution has at least 15 years of professional experience. This does not amend the protocol, but it does show this safeguard is in place for Rhoades’s execu- tion. 3 In light of Zmuda’s testimony, considered credible by the district court, we reject Rhoades’s contention that the execution facility is not suffi- ciently complete to host required trainings. RHOADES v. REINKE 20441 20, 2011 and November 18, 2011, the date of execu- tion, there will be 10 training sessions, including several full rehearsals during which team members will practice placing IV lines in volunteer subjects;

4) sufficient redundancy measures including three complete sets of chemicals and the prior identifica- tion of the best sites on Rhoades to insert the primary IV catheter as well as two separate locations for a backup IV catheter;4

5) meaningful consciousness checks if Rhoades remains conscious after administration of the sodium pentothal, including an initial check by the Medical Team as to why Rhoades is still conscious. After this check, the Medical Team leader will pass the infor- mation to the warden, along with the Medical Team’s input. The warden then decides how to pro- ceed, including whether to restart the procedure or to stop the procedure; and

6) expanded safeguards, including the presence of a medical doctor licensed by the Idaho Board of Medi- cine to give first aid and resuscitation, if a problem occurs in execution, and emergency technicians and an ambulance to give emergency medical assistance and transport if the need arises.

The district court correctly concluded that the SOP 135 proto- col, as it will be implemented, is not only substantially similar to the Kentucky protocol as described in Baze, but includes 4 The district court also found credible Zmuda’s assertion that if a peripheral line is not possible, the Medical Team, using related anesthetic and an ultrasound to assist in proper insertion, may use a central line cath- eter in Rhoades’s femoral vein in the thigh to administer the drugs. Zmuda testified that this procedure would not require an incision, or “cut down,” and that the team member responsible for this procedure regularly con- ducts insertion of central lines in his/her professional practice. 20442 RHOADES v. REINKE more safeguards than the Kentucky protocol. In this light, Rhoades’s claim that Idaho’s lethal injection protocol violates the Eighth Amendment fails.

Next, Rhoades challenges the district court’s conclusion that he did not show a substantial risk that the SOP 135 proto- col will be implemented in an unconstitutional manner. Spe- cifically, Rhoades argues that the IDOC did not engage in meaningful screening of candidates for the Execution Team or meaningful in-house training sessions, and will not engage in meaningful consciousness checks during Rhoades’s execu- tion.

[3] A prisoner may bring a claim for a failure properly to implement a constitutional lethal injection protocol, but we held in Dickens that to succeed on such a claim, a prisoner would have to “raise issues of fact as to whether there is a substantial risk that he will be improperly anesthetized despite the Protocol’s safeguards, including those added through amendment.” Dickens, 631 F.3d at 1146 (citing Baze, 553 U.S. at 56). Rhoades does not meet this burden.

Zmuda testified about the involved process by which he and the Medical Team leader, an experienced registered nurse, interviewed and selected candidates to serve on the Execution Team. The district court found that in selecting the members of the Execution Team, Zmuda understood the enor- mity of his responsibilities, was candid on the limits of his medical knowledge, and relied on the expertise of the Medical Team leader, a trained medical professional, to assess the technical competency of the selected team members.

Zmuda also testified that before Rhoades’s scheduled exe- cution, the Execution Team would participate in 10 training sessions, including several full rehearsals during which team members will practice placing IV lines in live, volunteer sub- jects, not just in mannequins as Rhoades contends. The dis- trict court found Zmuda’s testimony about the nature and RHOADES v. REINKE 20443 scope of the trainings to be credible and we conclude that there was no clear error in the district court’s factual conclu- sions. The Kentucky protocol does not require any more train- ing than what is set forth in SOP 135, and Rhodes offers no evidence that SOP 135 will not be followed.

Rhoades does not dispute that SOP 135 requires that the Medical Team leader be present during the execution to per- form consciousness checks. This is more than was required in the Kentucky protocol where consciousness checks performed by non-medical personnel, namely by the warden present in the execution chamber, were deemed constitutional. See Baze, 553 U.S. at 55-56. Moreover, as the district court pointed out, anecdotal information about problems with the administration of three-drug lethal injection protocols in other states is not necessarily probative of the likelihood that Idaho will have difficulty implementing the SOP 135 protocol as designed.

[4] We agree with the district court that Rhoades has not raised issues of fact as required by Dickens sufficient to sup- port the inference that the SOP 135 protocol will be improp- erly implemented in his case and that as a result he will be improperly anesthetized and exposed to severe pain.

[5] Finally, Rhoades argues that because of the existence of a one-drug protocol that does not pose a risk of severe pain, the three-drug protocol, which does pose some risk of severe pain, violates the Eighth Amendment because “the risk [of severe pain] is substantial when compared to the known and available alternatives.” Baze, 553 U.S. at 62. We rejected the same argument in Dickens:

We cannot embrace the claim that [Arizona’s three- drug] Protocol is unconstitutional because a one- drug approach is a proven alternative. Under Baze, the failure to adopt an alternative protocol estab- lishes an Eighth Amendment violation only if the current protocol creates a substantial risk of serious 20444 RHOADES v. REINKE harm that the alternative protocol will reduce. Baze, 553 U.S. at 52. “[A] condemned prisoner cannot suc- cessfully challenge a State’s method of execution merely by showing a slightly or marginally safer alternative [exists].” Id. at 51 (internal quotation and citation omitted). Here, we have determined that the [three-drug] Protocol does not create a substantial risk of serious harm, and thus Arizona cannot be required to adopt a one-drug protocol, even if there is evidence that the [one-drug] protocol is safer and feasible.

Dickens, 631 F.3d at 1150 (citations omitted). Rhoades argues that there have been more executions since Dickens which bolster his proof of the one-drug protocol’s efficacy and that at least three states have, since Baze, adopted one-drug proto- cols. This argument does not change the binding and persua- sive reasoning of the panel in Dickens because Rhoades proffers no evidence that SOP 135 is in fact likely to involve a substantial risk of severe pain. Considerations of federalism tell us that it does not matter if several states have decided to adopt one-drug protocols after Baze. What is important is that Idaho is free to choose to use the three-drug protocol if it does so in a way that is not likely to cause substantial risk of seri- ous pain to Rhoades.

[6] We conclude that Rhoades has not shown that he is entitled to injunctive relief on the merits of his claims. Because Rhoades has not shown that he is likely to succeed on the merits, which is required by Winter for injunctive relief, we need not and do not consider the district court’s remaining conclusions.

[7] The November 15, 2011 emergency motion for a stay of execution is denied.

AFFIRMED.