                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                   December 14, 2010
                                   TENTH CIRCUIT
                                                                   Elisabeth A. Shumaker
                                                                       Clerk of Court

 JAMES PAVATT,

           Plaintiff,

 and

 JEFFREY MATTHEWS,

           Plaintiff-Intervenor-Appellant,

 and

 JOHN DAVID DUTY,

           Plaintiff-Intervenor,

 v.                                                      No. 10-6268
                                                 (D.C. No. 5:10-CV-00141-F)
 JUSTIN JONES, Director, Department                     (W. D. Okla.)
 of Corrections, RANDALL G.
 WORKMAN, Warden, Oklahoma
 State Penitentiary; JOHN DOE, 1-50
 Unknown Executioners,

           Defendants-Appellees.



                             ORDER AND JUDGMENT *




       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Before BRISCOE, Chief Judge, GORSUCH, and HOLMES, Circuit Judges.


      Plaintiff Jeffrey Matthews, an Oklahoma state prisoner sentenced to death

by lethal injection, appeals from the district court’s denial of his motion for a

preliminary injunction of the execution. Exercising jurisdiction pursuant to 28

U.S.C. § 1292(a)(1), we affirm.

                                          I

      Matthews was convicted in Oklahoma state court of first degree murder and

sentenced to death. See Matthews v. Workman, 577 F.3d 1175, 1178-79 (10th

Cir. 2009) (outlining factual and state procedural history of Matthews’ case).

After Matthews exhausted the available state and federal court remedies, the

Oklahoma Court of Criminal Appeals (OCCA), at the request of the Oklahoma

Department of Corrections (ODC), scheduled Matthews to be executed on August

17, 2010.

      On the eve of his execution, Matthews was informed by ODC officials that

the anesthetic drug traditionally employed in ODC’s three-drug lethal injection

protocol, sodium thiopental, was unavailable and that ODC officials planned to

substitute an alternative barbiturate, pentobarbital, during Matthews’ execution. 1


      1
        According to the record, sodium thiopental is now effectively
unobtainable anywhere in the United States, thus requiring Oklahoma and other
death-penalty states to revise their lethal injection protocols. Two of those states,
Ohio and Washington, have purportedly now replaced their three-drug protocols
                                                                       (continued...)

                                          2
Matthews responded by simultaneously moving to stay his execution and to

intervene in Pavatt v. Jones, Case No. 10-141-F (W. D. Okla. 2010), an ongoing

42 U.S.C. § 1983 action filed by another Oklahoma prisoner asserting an Eighth

Amendment challenge to Oklahoma’s lethal injection protocol. The district court

granted Matthews’ motions, allowed him to file a complaint, and authorized

Matthews to conduct discovery and obtain and file an expert report. On

November 19, 2010, the district court held an evidentiary hearing on Matthews’

motion for preliminary injunction. During that hearing, Matthews presented

testimony from his expert witness, and defendants presented the videotaped

deposition testimony of their expert. At the conclusion of the hearing, the district

court ruled from the bench, denying Matthews’ motion for preliminary injunction.

On November 22, 2010, the district court issued a memorandum and order

memorializing its findings and conclusions. On that same date, the Oklahoma

Attorney General’s Office requested the OCCA to set January 4, 2011, as the

execution date for Matthews.

      Matthews now appeals from the district court’s denial of his motion for

preliminary injunction seeking to stay his execution.




      1
       (...continued)
with a one-drug protocol based upon pentobarbital. Other states, in particular
Oklahoma, have simply revised their existing three-drug protocols by substituting
pentobarbital for sodium thiopental.

                                          3
                                          II

      “We review the district court’s order for an abuse of discretion.” Hamilton

v. Jones, 472 F.3d 814, 815 (10th Cir. 2007). The principles that apply to our

review were outlined by the Supreme Court in Hill v. McDonough, 547 U.S. 571

(2006). “[A] stay of execution is an equitable remedy” that “is not available as a

matter of right, and equity must be sensitive to the State’s strong interest in

enforcing its criminal judgments without undue interference from the federal

courts.” 547 U.S. at 584. Consequently, “like other stay applicants, inmates

seeking time to challenge the manner in which the State plans to execute them

must satisfy all of the requirements for a stay, including a showing of a

significant possibility of success on the merits.” Id.

      As the district court aptly noted, Matthews’ challenge to the ODC’s

planned lethal injection procedure, i.e., its planned substitution of pentobarbital

for sodium thiopental, is governed by the Supreme Court’s decision in Baze v.

Rees, 553 U.S. 35 (2008). In Baze, the Court acknowledged “that subjecting

individuals to a risk of future harm—not simply actually inflicting pain—can

qualify as cruel and unusual punishment.” Id. at 49. However, the Court

emphasized, “[t]o establish that such exposure violates the Eighth Amendment, . .

. the conditions presenting the risk must be ‘sure or very likely to cause serious

illness and needless suffering,’ and give rise to ‘sufficiently imminent dangers.’”

Id. at 49-50 (quoting Helling v. McKinney, 509 U.S. 25, 33, 34-35 (1993)

                                           4
(emphasis added)). Thus, the Court held, “[s]imply because an execution method

may result in pain, either by accident or as an inescapable consequence of death,

does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies

as cruel and unusual.” Id. at 50. Lastly, the Court held that “[a] stay of execution

may not be granted on [such] grounds . . . unless the condemned prisoner

establishes that the State’s lethal injection protocol creates a demonstrated risk of

severe pain . . . [and] that the risk is substantial when compared to the known and

available alternatives.” Id. at 61.

      The district court, applying the Baze principles, concluded that Matthews

failed to demonstrate such a risk in connection with his impending execution. In

reaching this conclusion, the district court found:

      • that the first step of the ODC’s lethal injection protocol mandates
      the intravenous administration to the subject inmate of 5,000
      milligrams of pentobarbital (2,500 milligrams in each arm);

      • that the ODC’s protocol requires the attending physician to “ensure
      that the [inmate] is sufficiently unconscious [as a result of the
      pentobarbital] prior to the administration of the [second drug and
      paralytic agent,] vecuronium bromide,” Aplt. Br., Att. A at 153;

      • that the administration of a sufficient dose of pentobarbital will
      render an individual unconscious and that the administration of a
      sufficient dose of pentobarbital will be lethal;

      • that defendant’s expert witness, Dr. Mark Dershwitz, an
      anesthesiologist with a Ph.D. in pharmacology, “persuasively
      characterized a 5,000 milligram dose of pentobarbital as ‘an
      enormous overdose’” that “would cause a flat line of the EEG, which
      is the deepest measurable effect of a central nervous system
      depressant,” and “would be lethal as a result of two physiological

                                           5
       responses”: the cessation of respiration and the drop in blood
       pressure “to an unsurvivable level,” id. at 154;

       • that Dershwitz “very persuasively explained” that “pentobarbital is
       highly likely to cause death in five minutes or within a short time
       thereafter,” id.;

       • that Dershwitz “credibly testified . . . that the 5,000-milligram
       dosage will give rise . . . to a virtually nil likelihood that the inmate
       will feel the effects of the subsequently administered vecuronium
       bromide and potassium chloride,” id. at 155; and

       • that Dershwitz “persuasively responded to Dr. [David] Waisel’s
       testimony that clinicians do not know what dosage of pentobarbital
       would be required to achieve anesthesia by pointing out that the use
       of pentobarbital to induce a barbiturate coma, which at least in Dr.
       Dershwitz’s practice is a common use of pentobarbital, takes the
       patient to a state of unconsciousness beyond a normal clinical level
       of anesthesia,” id. at 155-56.

Based upon these factual findings, the district court concluded that Matthews

failed to establish “that the use of pentobarbital in Oklahoma’s lethal injection

protocol presents a constitutionally unacceptable risk of harm to the inmate.” Id.

at 156. “To the contrary,” the district court concluded, “the evidence in this case

clearly establishe[d] under the standards established . . . in Baze . . . that any risk

associated with the use of pentobarbital in Oklahoma’s lethal injection protocol

falls short of the level of risk that must be shown as a prerequisite to establishing

an Eighth Amendment claim.” Id. Thus, the district court concluded that

Matthews “failed to establish . . . a significant possibility of success on the merits

. . . .” Id. Lastly, the district court concluded that the likelihood that Matthews

“w[ould] suffer . . . injury . . . [w]as . . . virtually nil.” Id.

                                               6
      After conducting our own review of the record, we conclude the district

court did not abuse its discretion in denying Matthews’ motion. Each of the

district court’s factual findings are well-supported by the testimony of

defendant’s expert, Dr. Dershwitz. Although Matthews’ expert witness, Dr.

Waisel, expressed concern that there was insufficient data to allow the ODC to

determine the proper amount of pentobarbital to use as part of its protocol, it was

by no means clear error for the district court to find that Dr. Dershwitz, who has

substantially more clinical experience with the use of pentobarbital than Dr.

Waisel, persuasively rejected those concerns as unfounded. The district court

likewise committed no clear error in finding that the amount of pentobarbital

selected for use by the ODC as part of its protocol was sufficient to induce

unconsciousness in an inmate, and indeed would likely be lethal in most, if not

all, instances. Those findings, combined with the portion of the ODC’s protocol

that requires the attending physician to confirm that an inmate is unconscious

prior to the administration of the final two drugs in the ODC’s protocol, support

the district court’s legal conclusion that Matthews failed to establish a substantial

likelihood of success on the merits of his Eighth Amendment challenge to the

ODC’s revised protocol.

                                          III

      Matthews also contended below, albeit in summary fashion, that the use of

pentobarbital, which Dr. Dershwitz classified as an intermediate-acting

                                          7
barbiturate, would violate Oklahoma state law, which expressly requires the use

of an “ultrashort-acting barbiturate” 2 in executions. 3 Okla. Stat. tit. 22 §

1014(A). 4 In turn, Matthews contended that the ODC’s proposed execution

protocol threatened to violate what he characterized as his “state-created life


      2
         The record on appeal establishes that Dr. Dershwitz used the terms
“intermediate-acting” and “ultrashort-acting” to refer to the length of the
barbiturate’s effect, not on how quickly the barbiturate takes effect. Although it
is not entirely clear, Oklahoma’s statute appears to use the term “ultrashort-
acting” in a different sense, to refer to how quickly the barbiturate takes effect.
And on that score, as Dr. Dershwitz testified and the district court found, a 5,000
milligram dose of pentobarbital will quickly induce an unconscious state.
      3
        Matthews did not assert a separate due process claim in his intervenor
complaint. Instead, he waited until filing his amended motion for preliminary
injunction to assert, for the first time, that the use of pentobarbital would violate
Oklahoma state law and, in turn, violate his federal due process rights. Although
Matthews continued to mention the claim thereafter, including at the hearing on
his motion for preliminary injunction, he presented no evidence, and few legal
authorities, in support of the claim. In turn, the district court summarily rejected
the claim as meritless at the preliminary injunction hearing, and did not expressly
address it in its subsequent written order memorializing its oral rulings.
      4
        The statute provides, in its entirety:
      A. The punishment of death must be inflicted by continuous,
      intravenous administration of a lethal quantity of an ultrashort-acting
      barbiturate in combination with a chemical paralytic agent until death
      is pronounced by a licensed physician according to accepted
      standards of medical practice.
      B. If the execution of the sentence of death as provided in
      subsection A of this section is held unconstitutional by an appellate
      court of competent jurisdiction, then the sentence of death shall be
      carried out by electrocution.
      C. If the execution of the sentence of death as provided in
      subsections A and B of this section is held unconstitutional by an
      appellate court of competent jurisdiction, then the sentence of death
      shall be carried out by firing squad.
Okla. Stat. tit. 22 § 1014.

                                           8
interest under the Fifth and Fourteenth Amendments.” Aplt. Br. at 6. More

specifically, Matthews contended he could not “be deprived of this Constitutional

right through the arbitrary and capricious actions of persons acting under the

color of State law.” Id.

      “A violation of state law does not by itself constitute a violation of the

Federal Constitution.” Nordlinger v. Hahn, 505 U.S. 1, 26 (1992). To the extent,

however, that state law creates an interest substantial enough to rise to the level

of a “legitimate claim of entitlement,” that interest is protected by the Due

Process Clause of the Fifth Amendment. Bd. of Regents of State Colleges v.

Roth, 408 U.S. 564, 577 (1972). The Due Process Clause provides that “[n]o

State shall . . . deprive any person of life, liberty, or property, without due process

of law,” U.S. Const., Amdt. 14, § 1; accord Amdt. 5, and thus “imposes

procedural limitations on a State’s power to take away protected entitlements.”

District Attorney’s Office for Third Judicial Dist. v. Osborne, 129 S.Ct. 2308,

2319 (2009).

      Here, as noted, Matthews asserts that he has a protected, “state-created life

interest” in being executed in accordance with the precise protocol set forth in

Okla. Stat. tit. 22 § 1014(A), and that defendants are threatening to violate that

right. However, there is no indication in the record that defendants have denied

Matthews the opportunity to challenge the protocol either administratively or in




                                           9
the Oklahoma state courts. 5 Indeed, the record indicates that Matthews has, in

opposition to the State’s request for the OCCA to set an execution date, filed an

objection specifically arguing that the ODC’s newly revised execution protocol is

contrary to state law. Consequently, we conclude, as did the district court, that

Matthews has failed to establish a substantial likelihood of prevailing on his due

process challenge to the ODC’s newly revised execution protocol.

      AFFIRMED.

                                              Entered for the Court


                                              Mary Beck Briscoe
                                              Chief Judge




      5
        There was no indication in any of Matthews’ district court pleadings, or in
his opening appellate brief, that he was seeking to assert a substantive due
process violation. More specifically, at no point in any of those pleadings did
Matthews mention the concept of substantive due process, or the associated
“‘fundamental right’ or . . . ‘shocks the conscience’ standards . . . .” Seegmiller
v. LaVerkin City, 528 F.3d 762, 767 (10th Cir. 2008).
      In his appellate reply brief, Matthews mentioned the concept of substantive
due process for the first time, stating in a footnote: “Mr. Matthews’ asserted due
process claim is as much, if not more, a substantive due process violation as it is
a procedural due process violation.” Aplt. Reply Br. at 15 n.5. We conclude,
however, that any such claim has been waived. See United States v. Smith, 606
F.3d 1270, 1284 n. 5 (10th Cir. 2010) (explaining that “issues raised by an
appellant for the first time on appeal in a reply brief are generally deemed
waived” (quotations omitted)).

                                         10
