Paul Rhoades v. Brent Reinke , 671 F.3d 856 ( 2011 )

FILED
FOR PUBLICATION NOV 16 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
PAUL EZRA RHOADES, No. 11-35940
Petitioner - Appellant, D.C. No. CV-11-0000445-REB
v.
OPINION
BRENT REINKE, RANDY BLADES,
DOES 1–50, and/or UNKNOWN
EXECUTIONERS,
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
Before: GOULD, BYBEE, and BEA, Circuit Judges.
Per Curiam:
*
By stipulation of the parties, Magistrate Judge Ronald E. Bush
presided 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).
We consider Paul Ezra Rhoades’s appeal from the district court’s denial of
his emergency motion for preliminary 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 substantially
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
protocol 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 entitled 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 emergency 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 irreparable harm in the absence of
preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an
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injunction is in the public interest.” Beaty v. Brewer, 649 F.3d 1071, 1072 (9th
Cir. 2011) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)).
Rhoades claims he is entitled to relief. We disagree and explain why we reject his
arguments.
We review the district court’s denial of Rhoades’s emergency 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
deferential.” Id. (quoting Southwest Voter Registration Educ. Project v. Shelley,
344 F.3d 914, 918 (9th Cir. 2003) (en banc)). “We review underlying legal issues
de novo and findings of fact for clear error.” Grocery Outlet Inc. v. Albertson’s
Inc., 497 F.3d 949, 950–51 (9th Cir. 2007).
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 chosen to maintain the
death penalty, including Idaho. The Supreme Court has made clear that this is
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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
Dickens v. Brewer, 631 F.3d 1139 (9th Cir. 2011). We consider Baze and Dickens
to be controlling absent a showing of material difference. These cases might
permit us to give preliminary 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 execution, 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 lethal injection protocol
violated the Eighth Amendment’s prohibition of cruel and unusual punishment.
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The Court concluded that “to prevail on such a claim there must be a substantial
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 accordance with the Supreme Court’s decision
in Baze, Arizona’s protocol fell within the “safe harbor” of lethal injection
protocols 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
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injection protocol. What minor differences do exist are not applicable to the way
the protocol is being implemented in this case.1
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 establishing 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,
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 protocol requires monitoring by
microphone and video, in addition to an individual 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 differences 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 difference is also irrelevant here
because we approved the use of pentobarbital as an alternative to sodium pentothal
in Beaty, 649 F.3d at 1072.
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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, Deputy Chief of the Bureau of Prisons,
as further evidence of the procedures that are actually to be used for Rhoades’s
execution, 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 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 Gilmore v.
California, 220 F.3d 987, 1005 (9th Cir. 2000); cf. Dickens, 631 F.3d at 1142 &
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n.2 (considering the Arizona protocol as amended by a Joint Report and the
addition of provisions during the course of litigation).
The district court found that Zmuda credibly testified that the following
safeguards are in place for Rhoades’s execution:
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 experience
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 Injection Team members have been
receiving regular training in the execution procedures, in the execution
unit itself, since October 20, 2011.3 Between October 20, 2011 and
November 18, 2011, the date of execution, 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 identification of the best sites on Rhoades to
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 execution.
3
In light of Zmuda’s testimony, considered credible by the district court, we
reject Rhoades’s contention that the execution facility is not sufficiently complete
to host required trainings.
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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 information to the warden, along with
the Medical Team’s input. The warden then decides how to proceed,
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 Medicine 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 protocol, as it will be
implemented, is not only substantially similar to the Kentucky protocol as
described in Baze, but includes 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 protocol will be implemented in an
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 catheter 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 conducts insertion of central lines in
his/her professional practice.
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unconstitutional manner. Specifically, 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 execution.
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 at1146 (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 enormity 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 execution, the
Execution Team would participate in 10 training sessions, including several full
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rehearsals during which team members will practice placing IV lines in live,
volunteer subjects, not just in mannequins as Rhoades contends. The district court
found Zmuda’s testimony about the nature and scope of the trainings to be credible
and we conclude that there was no clear error in the district court’s factual
conclusions. The Kentucky protocol does not require any more training 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 perform 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.
We agree with the district court that Rhoades has not raised issues of fact as
required by Dickens sufficient to support the inference that the SOP 135 protocol
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will be improperly implemented in his case and that as a result he will be
improperly anesthetized and exposed to severe pain.
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 establishes an Eighth
Amendment violation only if the current protocol creates a substantial risk of
serious harm that the alternative protocol will reduce. Baze, 553 U.S. at 52.
“[A] condemned prisoner cannot successfully 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 protocols.
This argument does not change the binding and persuasive reasoning of the panel
in Dickens because Rhoades proffers no evidence that SOP 135 is in fact likely to
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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 serious
pain to Rhoades.
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.
The November 15, 2011 emergency motion for a stay of execution is denied.
AFFIRMED.
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Counsel
Oliver W. Loewy and Teresa A. Hampton, Capital Habeas Unit, Federal Defenders
Services of Idaho, Inc., counsel for Appellant Paul Ezra Rhoades.
Lawrence G. Wasden, Attorney General of Idaho, Mark A. Kubinski, Krista L.
Howard, and L. LaMont Anderson, Deputy Attorneys General of Idaho, Idaho
Department of Correction for Appellees Brent Reinke et al.
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