                      FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

JEFFREY TIMOTHY LANDRIGAN,                          No. 10-99021
                Plaintiff-Appellee,                     D.C. No.
               v.
JANICE K. BREWER; et al.,
                                                 2:10-cv-00246-ROS
                                                  District of Arizona,
           Defendants-Appellants.                       Phoenix

                                                        ORDER

                       Filed October 26 2010

  Before: Pamela Ann Rymer, Kim McLane Wardlaw, and
            William A. Fletcher, Circuit Judges.


                                ORDER

   The State of Arizona appeals the district court’s order
granting a temporary restraining order enjoining the sched-
uled 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 (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
  1
   The district court’s mandate states that “Plaintiff ’s Motion for a Tem-
porary Restraining Order or a Preliminary Injunction is GRANTED.” We
construe its order as one for a preliminary injunction.

                                  17971
17972                   LANDRIGAN v. BREWER
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 chal-
lenged in this action — has safeguards sufficient to guard
against an intolerable risk of harm.

   Landrigan sought post-conviction relief in state court chal-
lenging 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 proceed-
ings in Dickens. He 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 Ari-
zona’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 neces-
sary drugs. The state indicated that Arizona Department of
Corrections (ADOC) had obtained the necessary supply. Lan-
drigan then asked the Arizona Supreme Court to compel dis-
closure 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.
  2
   An appeal from this ruling is pending in our court.
                      LANDRIGAN v. BREWER                  17973
   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 informa-
tion concerning the sodium thiopental it intends to use in Lan-
drigan’s execution. In default of providing the information,
the court directed the state to explain why it would not pro-
vide 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 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 thiopen-
tal supply; in the court’s view, the statute applies only to indi-
viduals, 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. This, the court concluded, it could
not do without knowing the source of the drug the state pro-
posed to use, its expiration date, the efficacy of the drug for
its intended purpose, and all available documentation con-
cerning the manufacturer and its process for producing
sodium thiopental. For this reason, it ordered the state to dis-
close that information immediately.

   In response, the state submitted a “Disclosure of Informa-
tion/Motion to Reconsider” on October 24. In it, the state rep-
resented that its sodium thiopental is in 500 mg vials with an
expiration date of May 2014. It also represented that “the pro-
cess 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 improp-
erly engrafted a requirement that the state use FDA-approved
drugs, and failed to address protections that are in place to
ensure that an inmate is unconscious following administration
17974                    LANDRIGAN v. BREWER
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 pro-
cess. 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 restrain-
ing 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 Landri-
gan 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. Natu-
ral Resources Defense Council, 555 U.S. ___, 129 S. Ct. 365,
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
  3
    The request for a protective order was unsupported by a declaration.
  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.”
                     LANDRIGAN v. BREWER                   17975
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 infor-
mation 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 thio-
pental from Hospira when it resumes manufacturing the drug
in 2011. By contrast, in the absence of injunctive relief, Lan-
drigan would be executed using a drug of unknown quality.
The court concluded that the balance of equities favors Lan-
drigan because a stay could have been avoided had the state
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 injunc-
tion protocol. Upholding Kentucky’s protocol, the three jus-
tice 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
17976                 LANDRIGAN v. BREWER
severe pain.” Id. at 61. A risk that procedures will not be
properly followed can qualify as cruel and unusual punish-
ment, 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 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 cam-
era 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 dis-
trict court due to the state’s failure to provide the materials,
we cannot say the district court abused its discretion in grant-
ing 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.
