Cook v. Brewer ( 2011 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL WAYNE COOK, 
Plaintiff-Appellant,
v.
JANICE K. BREWER, Governor of
Arizona; CHARLES L. RYAN, No. 11-15743
Director, Arizona Department of
Corrections; ERNEST TRUJILLO,  D.C. No.
2:11-cv-00557-RCB
Warden, Arizona Department of
Corrections-Eyman; CARSON OPINION
MCWILLIAMS, Warden, Arizona
Department of Corrections-
Florence; UNKNOWN PARTIES, Does
1-50,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
Robert C. Broomfield, Senior District Judge, Presiding
Submitted March 30, 2011*
San Francisco, California
Filed April 1, 2011
Before: Diarmuid F. O’Scannlain, Susan P. Graber, and
Consuelo M. Callahan, Circuit Judges.
Per Curiam Opinion
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
4773
COOK v. BREWER 4775
COUNSEL
Jon M. Sands, Federal Public Defender, Dale A. Baich, Robin
C. Konrad, Golnoosh Farzaneh, Assistant Federal Public
Defenders, Phoenix, Arizona, for the plaintiff-appellant.
Thomas C. Horne, Attorney General, Kent E. Cattani, Chief
Counsel, Capital Litigation Section, Phoenix, Arizona, for the
defendants-appellees.
OPINION
PER CURIAM:
Plaintiff Daniel Wayne Cook (“Cook”) appeals the district
court’s dismissal of his complaint for failure to state a claim.
We affirm.
I
We have already upheld the district court’s denial of
Cook’s first complaint seeking relief under 42 U.S.C. § 1983(“§ 1983”). Cook v. Brewer, No. 11-15303, 2011 WL 9021114776 COOK v. BREWER
(9th Cir. Mar. 16, 2011). That complaint, like the instant one,
asserted that the Arizona Department of Corrections’
(“ADC”) intended use of imported, non-Food and Drug
Administration (“FDA”) approved, sodium thiopental in
Cook’s execution violates his Eighth Amendment rights
because it is very likely to cause Cook needless suffering.1
We held that Cook’s speculative and conclusory allegations
were insufficient to state a facially plausible claim that the
sodium thiopental the ADC had obtained is “ ‘sure or very
likely to cause serious illness and needless suffering’ ” in vio-
lation of his Eighth Amendment right to be free from cruel
and unusual punishment. Id. at *3-4 (quoting Baze v. Rees,
553 U.S. 35, 50 (2008)).
On March 25, 2011, Cook filed the instant suit raising the
same claim against the same Defendants. The primary differ-
ence between the two cases is that Cook’s slightly amended
complaint contains four new factual allegations.
On March 28, 2011, the district court dismissed Cook’s
second § 1983 complaint, holding that it, like the first com-
plaint, failed to state a claim upon which relief may be
granted. See Cook v. Brewer, No. CV 11-557-PHX-RCB,
2011 WL 1119641, *1 (D. Ariz. Mar. 28, 2011). Cook timely
appealed.
1
In this suit, as in his prior § 1983 action, Cook raises a second claim
in addition to his Eighth Amendment claim of unconstitutional pain.
Cook’s second claim is that the administration of the sodium thiopental by
medical professionals constitutes deliberate indifference to Cook’s Eighth
Amendment right to be free from cruel and unusual punishment. For the
reasons set forth in our prior opinion, Cook’s deliberate indifference claim
remains derivative of his claim of unconstitutional pain. See Cook, 2011
WL 902111 at *5. Accordingly, here we address only the underlying
claim.
COOK v. BREWER 4777
II
Because this case is essentially identical to Cook’s previous
appeal, we rely on our discussion of the relevant facts and law
set forth therein and address only Cook’s new allegations. Our
review is de novo. Shroyer v. New Cingular Wireless Servs.,
Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). We review the suf-
ficiency of Cook’s claims under Federal Rule of Civil Proce-
dure 8(a) (“Rule 8(a)”) under the standard articulated by the
United States Supreme Court in Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (2009), and Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007). For Cook to establish his Eighth
Amendment claim for exposure to future harm of needless
pain from the use of the sodium thiopental at issue here, he
is required to show a risk that is “ ‘sure or very likely to
cause. . . needless suffering,’ and give rise to ‘sufficiently
imminent dangers.’ ” Baze, 553 U.S. at 50 (quoting Helling v.
McKinney, 509 U.S. 25, 33, 34-35 (1993)).
III
Cook raises four new factual allegations to support his
claim that the sodium thiopental is sure or very likely to cause
unconstitutional pain.2 He asserts that the sodium thiopental
which Arizona plans to use in his execution: (1) “[h]as offi-
cially reported issues with lack of efficacy in the United King-
dom”; (2) is made for animal use, not human use; (3) “[h]as
documented reports of problems in its use in three executions
in the United States”; and (4) was unlawfully “imported in a
manner nearly identical to the process used in Georgia—a
process that has resulted in the Drug Enforcement Adminis-
tration seizing Georgia’s supply of the substance.” The dis-
trict court concluded that, under Rule 8(a)’s pleading
standard, Cook’s new factual allegations still failed to state a
2
Cook contends that the district court erred by applying a heightened
pleading standard for each of his two claims. We need not decide that
question because, as noted in text above, we have de novo review.
4778 COOK v. BREWER
facially plausible claim that the use of sodium thiopental at
issue here is “ ‘sure or very likely to cause serious illness and
needless suffering.’ ” See Cook, 2011 WL 1119641, at *3
(quoting Baze, 553 U.S. at 50 (internal quotation marks omit-
ted)). We agree.3
[1] First, Cook alleges that the United Kingdom’s counter-
part to the FDA reported that there have been “twelve adverse
drug reaction reports” concerning sodium thiopental in the
past two years, “five of which related to the efficacy of the
substance,” including one involving the same batch number of
the sodium thiopental at issue here. Cook, however, provides
no information as to what the adverse reactions were, whether
any of the twelve instances of adverse reactions, or the one
adverse reaction specific to the batch of sodium thiopental at
issue here, is statistically or medically significant, or the
nature or extent of the lack of efficacy. Thus, the new allega-
tions do not, by themselves, state a facially plausible claim.
[2] Second, Cook alleges that this batch of sodium thio-
pental was manufactured for use in animals, not for human
use, and asserts that, therefore, the use of this drug will “fail
to properly anesthetize” him or will “cause him severe pain.”
However, Cook alleges no facts supporting his inference that
there is some difference between sodium thiopental manufac-
tured for humans and the drug manufactured for animals, and
no facts supporting the assertion that the administration of
sodium thiopental manufactured for animals would cause him
unconstitutional pain.
[3] Third, Cook alleges that the sodium thiopental at issue
here caused problems in three executions by lethal injection
in the United States. Specifically, he alleges that the ADC
3
The state submitted affidavits with its responsive brief. We do not con-
sider the information set forth in them, because the only issue before us
is the sufficiency of the complaint. We therefore consider only the allega-
tions in the complaint.
COOK v. BREWER 4779
used a larger dose than called for in its lethal injection proto-
col for the execution of Jeffrey Landrigan and that, in three
executions involving lethal injections which used sodium
thiopental, including Landrigan’s execution, the prisoners’
eyes remained open throughout the execution. Cook claims
that prisoners do not keep their eyes open when domestically
manufactured sodium thiopental is used in executions. In sup-
port of his claims, he attached several affidavits to his com-
plaint from non-medical professionals, stating that prisoners
executed by lethal injection typically have their eyes closed.
Again, Cook’s newly discovered allegations do not state a
facially plausible claim that the sodium thiopental will cause
him needless pain. Even if Landrigan received a larger dose
of sodium thiopental than was called for in Arizona’s lethal
injection protocol, such a fact does not inherently reflect a
problem with the drug. Likewise, assuming that the three pris-
oners all kept their eyes open during their executions, and
assuming that this is atypical, we have no medical or scien-
tific basis for concluding that open eyes reflect a problem
with the sodium thiopental or indicate the presence of severe
pain.
[4] Moreover, there is no basis in the complaint to question
the numerous safeguards in Arizona’s lethal injection protocol
that ensure an inmate’s unconsciousness after the administra-
tion of the sodium thiopental. See Cook, 2011 WL 902111, at
*4. Indeed, we have noted that, “[a]fter the sodium thiopental
is administered, the [Members of the Medical Team
(“MTMs”) ] confirm that the inmate is unconscious by ‘sight
and sound’ using the camera and microphone, and an MTM
enters the execution chamber to physically confirm uncon-
sciousness.” Dickens v. Brewer, 631 F.3d 1139, 1143 (9th Cir.
2011). Cook’s complaint does not plausibly suggest that,
despite these safeguards, Arizona would inject a conscious
man with painful lethal drugs.
Fourth, Cook asserts that this action must be remanded
because the district court did not address his claim that the
4780 COOK v. BREWER
substance was obtained unlawfully. However, in our prior
opinion, we stated, “[t]he actual legality of importing this
drug is not at issue here[;] we are only concerned with the
constitutionality of its use on Mr. Cook.” Cook, 2011 WL
902111, at *3, n.3. Cook offers no new evidence or authority
that alters our perspective.
IV
[5] Because Cook’s four new allegations do not support
the drawing of any non-speculative conclusions, Cook has
failed to state a facially plausible claim that Arizona’s
planned execution is “sure or very likely to cause . . . needless
suffering.” Baze, 553 U.S. at 50 (internal quotation marks
omitted). Accordingly, the district court’s dismissal of Cook’s
complaint is AFFIRMED.