                                                                           FILED
                               FOR PUBLICATION                              OCT 26 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JEFFREY TIMOTHY LANDRIGAN,                       No. 10-99021

              Plaintiff - Appellee,              D.C. No. 2:10-cv-00246-ROS
                                                 District of Arizona,
  v.                                             Phoenix

JANICE K. BREWER; et al.,
                                                 ORDER
              Defendants - Appellants.



Before: RYMER, WARDLAW, and W. FLETCHER, Circuit Judges

             The State of Arizona appeals the district court’s order granting a

temporary restraining order enjoining the scheduled execution on October 26, 2010

of Arizona inmate Jeffrey Timothy Landrigan.1 We cannot say the district court

abused its discretion, and we affirm.

       Landrigan filed a complaint under 42 U.S.C. § 1983 on October 21, 2010,

challenging the use of sodium thiopental from an unidentified foreign

manufacturing source that is not approved by the Food and Drug Administration



       1
        The district court’s mandate states that “Plaintiff’s Motion for a
Temporary Restraining Order or a Preliminary Injunction is GRANTED.” We
construe its order as one for a preliminary injunction.
(FDA). He maintains that this creates a substantial and unnecessary risk of serious

pain during his execution in violation of the Eighth Amendment to the United

States Constitution. Landrigan also claims that the state’s refusal to disclose

details about the source of the drug and its handling offends his due process rights

under the Fourteenth Amendment. Although the state acknowledged that its source

of sodium thiopental is foreign, it refused to supply details. The state’s position is

that Ariz. Rev. Stat. § 13-757(C) prohibits disclosure of the identity of people or

entities who are involved in ancillary functions of an execution and information in

records that would identify them, and that in any event its protocol – which is not

challenged in this action – has safeguards sufficient to guard against an intolerable

risk of harm.

      Landrigan sought post-conviction relief in state court challenging Arizona’s

lethal injection protocol on state law grounds. Relief was denied on October 8,

2009, largely on the basis of Judge Wake’s ruling in Dickens v. Brewer, No. CV-

07-1770-PHX-NVW, 2009 WL 1904294 (D. Ariz. July 1, 2009), upholding the

constitutionality of the protocol.2 When the state moved in the Arizona Supreme

Court for a warrant of execution, Landrigan opposed the motion in May 2010 on

various grounds, including the pendency of appellate proceedings in Dickens. He


      2
          An appeal from this ruling is pending in our court.

                                           2
supplemented his opposition by asserting that there was a nationwide shortage of

sodium thiopental and asking the court to delay ruling on the warrant request until

the state demonstrated that it had, or could legally obtain, the drugs necessary to

carry out his execution consistent with Arizona’s protocol. The Arizona Supreme

Court issued a warrant on September 21, but directed the state to report by October

1 whether it possessed a sufficient quantity of all the necessary drugs. The state

indicated that Arizona Department of Corrections (ADOC) had obtained the

necessary supply. Landrigan then asked the Arizona Supreme Court to compel

disclosure of information about the sodium thiopental that the state planned to use

to implement his execution, as well as to stay the execution. On October 20, the

Arizona Supreme Court declined relief without explanation.

      Landrigan filed his federal complaint the next day. The day the complaint

was filed, the district court issued an order requesting the state voluntarily to

provide detailed information concerning the sodium thiopental it intends to use in

Landrigan’s execution. In default of providing the information, the court directed

the state to explain why it would not provide the information or to explain why the

information was not relevant to the disposition of a motion for a temporary

restraining order or preliminary injunction. The state did not produce the requested

information. The court issued another order on October 23. In this order, the


                                           3
district court disagreed with the state’s claim that Ariz. Rev. Stat. § 13-757(C) bars

it from providing information about the source, labels, and lot numbers of the

Department of Corrections’s sodium thiopental supply; in the court’s view, the

statute applies only to individuals, not to entities. Further, the court noted that

while the Eighth Amendment may not categorically prohibit the use of non-FDA

approved drugs, to decide the case it must have some basis for comparing the

effectiveness of the drug already obtained by the state to that of drugs

manufactured by an FDA-approved source. Thus, the court concluded, it could not

do without knowing the source of the drug the state proposed to use, its expiration

date, the efficacy of the drug for its intended purpose, and all available

documentation concerning the manufacturer and its process for producing sodium

thiopental. For this reason, it ordered the state to disclose that information

immediately.

      In response, the state submitted a “Disclosure of Information/Motion to

Reconsider” on October 24. In it, the state represented that its sodium thiopental is

in 500 mg vials with an expiration date of May 2014. It also represented that “the

process of shipping and receiving the chemicals was cleared and approved by U.S.

Customs and FDA officials.” Beyond this, the state maintained that the court’s

October 23 order improperly engrafted a requirement that the state use FDA-


                                            4
approved drugs, and failed to address protections that are in place to ensure that an

inmate is unconscious following administration of sodium thiopental. The state

also adhered to its position that Ariz. Rev. Stat. § 13-757(C) preserves

confidentiality of entities involved in functions ancillary to the execution process.

Alternatively, the state requested permission to file the information required to be

disclosed under seal instead of publicly, as the October 23 order directed. It moved

to file under seal and for a protective order,3 which Landrigan opposed.

      On October 25, the district court denied the state’s request to file under seal

and granted a temporary injunction restraining the state from carrying out

Landrigan’s death sentence until further order of the court.

      The court also ordered the state to disclose to Landrigan the documents

provided to the court. The court reasoned that in the unique circumstances of this

case, the state’s refusal to provide discovery, that is, to provide information to

Landrigan about the source and efficacy of its drug, effectively deprived him of the

opportunity to try to carry his burden of proving entitlement to injunctive relief

under Winter v. Natural Resources Defense Council, 555 U.S. ___, 129 S. Ct. 365,




      3
          The request for a protective order was unsupported by a declaration.

                                           5
376 (2008).4 This left uncontested Landrigan’s evidence that drugs from a non-

FDA approved source are more likely to contain harmful contaminants. The court

made clear that it does not assume that the Eighth Amendment categorically

prohibits use of non-FDA approved drugs; rather, “it seems likely that the Eighth

Amendment does not prohibit the use of such drugs.” But in the court’s view,

without assurance of FDA approval, the court lacked the ability to determine

whether the drug to be used will perform in the same manner as if it had FDA-

approval absent any of the requested information from the state.

      The court found little potential for significant injury to the state, as a stay

would not preclude it from carrying out the execution with an alternate barbiturate

or with sodium thiopental from Hospira when it resumes manufacturing the drug in

2011. By contrast, in the absence of injunctive relief, Landrigan would be

executed using a drug of unknown quality. The court concluded that the balance of

equities favors Landrigan because a stay could have been avoided had the state


      4
         The court explained, “This Court has never experienced a situation such as
this where a defendant opposes a motion for emergency relief by claiming it has
the evidence necessary for resolution of the matter but that evidence should not be
produced. Defendants have never adequately explained their rationale for
withholding all evidence regarding the drug, and Defendants have now created a
situation where a seemingly simple claim that could have been resolved well in
advance of the execution must be resolved in five days – and now only eighteen
hours due to further protractions created only by Defendants – without the benefit
of Plaintiff having the opportunity to present fact-based arguments.”

                                           6
timely disclosed the source of its sodium thiopental, and that the temporary stay

will allow for responsible adjudication of the claims.

      Finally, the court found no significant harm to the public interest from an

informed adjudication of Landrigan’s claims.

      To prevail on a request for injunctive relief, the petitioner must show (1) he

is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the

absence of preliminary relief; (3) the balance of equities tips in his favor, and (4)

an injunction is in the public interest. Winter v. Natural Resources Defense

Council, 555 U.S. ___, 129 S. Ct. 365, 376 (2008).

      In Baze v. Rees, 553 U.S. 35 (2008), the Court considered an Eighth

Amendment challenge to Kentucky’s lethal injunction protocol. Upholding

Kentucky’s protocol, the three justice plurality articulated a standard that requires

the inmate to establish a “substantial risk of serious harm.” Id. at 52. The plurality

instructed that “[a] stay of execution may not be granted . . . unless the condemned

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

risk of severe pain.” Id. at 61. A risk that procedures will not be properly followed

can qualify as cruel and unusual punishment, but to establish a violation of 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


                                            7
imminent dangers.’” Id. at 50 (quoting and adding emphasis to Helling v.

McKinney, 509 U.S. 25, 33, 34-35 (1993)).

       Although the state provided some information for in camera review by the

district court, it did not ask this court to file those materials under seal, or

otherwise. See Circuit Rule 27-13; Fed. R. App. P. 10(b)(2). Nor has the state

offered any indication of what those materials might be or how they might inform a

decision about whether the drug would function as intended. Because we do not

know what was before the district court due to the state’s failure to provide the

materials, we cannot say the district court abused its discretion in granting a

temporary stay.

       The Supreme Court standards, and our legal process, assume that the parties

will be forthcoming with information necessary to make an informed and reasoned

decision. Here, it was not provided.

       AFFIRMED.




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