                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

MICHAEL ANGELO MORALES,                   
                 Plaintiff-Appellant,
                 v.                              No. 06-99002
RODERICK Q. HICKMAN, Warden,                      D.C. Nos.
Secretary of the California                    CV-06-00926-JF
Department of Corrections; STEVEN               CV-06-00219-JF
W. ORNOSKI, Acting Warden, for
                                                  OPINION
the California State Prison at San
Quentin,
              Defendants-Appellees.
                                          
         Appeal from the United States District Court
            for the Northern District of California
           Jeremy Fogel, District Judge, Presiding

                 Submitted February 19, 2006*
                   San Francisco, California

                     Filed February 19, 2006

  Before: Andrew J. Kleinfeld, M. Margaret McKeown and
            Raymond C. Fisher, Circuit Judges.

                       Per Curiam Opinion




  *The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

                                2017
                     MORALES v. HICKMAN                  2019


                         COUNSEL

David A. Senior, McBreen & Senior, Los Angeles, California;
John R. Grele, San Francisco, California; Richard P. Steinken,
Janice H. Lam and Stephanie L. Reinhart, Jenner & Block,
LLP, Chicago, Illinois; Ginger D. Anders, Jenner & Block,
LLP, Washington D.C., for the plaintiff-appellant.

Bill Lockyer, Attorney General of the State of California,
Robert R. Anderson, Chief Assistant Attorney General, Ger-
ald A. Engler, Senior Assistant Attorney General, Ronald S.
Matthias, Supervising Deputy Attorney General, and Dane R.
2020                 MORALES v. HICKMAN
Gillette, Senior Assistant Attorney General, San Francisco,
California, for the defendants-appellees.


                         OPINION

PER CURIAM:

   Michael Angelo Morales (“Morales”) is a California death
row inmate scheduled to be executed by lethal injection on
February 21, 2006 at 12:01 a.m. He brought a 42 U.S.C.
§ 1983 action in the United States District Court seeking to
enjoin the State from executing him by lethal injection under
the procedures set forth in San Quentin Operational Procedure
No. 770 (“Protocol No. 770”). Specifically, Morales con-
tended that a combination of circumstances, including the
specific drugs chosen, the procedure by which the drugs are
administered and the absence of medically trained personnel
overseeing the execution, creates a foreseeable and undue risk
that he will experience unnecessary and wanton pain consti-
tuting cruel and unusual punishment under the Eighth and
Fourteenth Amendments. See Gregg v. Georgia, 428 U.S.
153, 173 (1976) (holding that the Eighth Amendment prohib-
its punishments that “involve the unnecessary and wanton
infliction of pain.”).

   After reviewing evidence Morales presented regarding the
circumstances of the 13 lethal injection executions California
has carried out to date under Protocol No. 770, the district
court found that Morales “raised . . . substantial questions”
about the implementation of Protocol No. 770, District Court
Order of Feb. 14 at 12 (“Order 1”), including whether the
State’s administration of Protocol No. 770 “creates an undue
risk that [Morales] will suffer excessive pain when he is exe-
cuted,” Order 1 at 13, and “whether a person rendered uncon-
scious by sodium thiopental might regain consciousness
during administration of pancuronium bromide or potassium
                         MORALES v. HICKMAN                          2021
chloride.” Order 1 at 14. Responding to these concerns, and
applying the standard for a stay of execution we articulated in
Beardslee v. Woodford, 395 F.3d 1064, 1067-68 (9th Cir.
2005),1 the district court conditioned its denial of Morales’
request for a stay of execution on the State’s compliance with
certain amendments to Protocol No. 770. The court proposed
two alternative conditions to address the risk of an unconstitu-
tionally cruel and painful execution.2 The State agreed to
comply with the court’s second alternative condition — hav-
ing a qualified anesthesiologist present to ensure that Morales
is indeed unconscious during the second and third stages of
the lethal injection process — and the court issued a final
order permitting the execution to proceed as scheduled. Mora-
les now appeals the court’s two orders (which we will refer
to collectively as the “Orders”). We review for an abuse of
discretion, Beardslee, 395 F.3d at 1068, and affirm subject to
the interpretation of the Orders as set forth in this opinion.

                                    I.

   Morales was tried for the rape and murder of Terri Win-
chell, a seventeen-year old girl. A jury convicted Morales of
murder, found special circumstances and sentenced him to
death. After the California Supreme Court affirmed his con-
viction, and the United States Supreme Court denied certio-
rari, Morales’ conviction became final in 1989. Morales
  1
     “[B]efore granting a stay of execution, courts ‘must consider not only
the likelihood of success on the merits and the relative harms to the par-
ties, but also the extent to which the inmate has delayed unnecessarily in
bringing the claim.’ ” Beardslee, 395 F.3d at 1068 (quoting Nelson v.
Campbell, 541 U.S. 637, 649-50 (2004)).
   2
     The court’s two alternative conditions were: (1) the State would “use
only sodium thiopental or another barbiturate or combination of barbitu-
rates in [Morales’] execution,” thereby avoiding the concern that one of
the other two drugs would cause Morales pain; (2) the State would agree
to allow an anesthesiologist to monitor and verify that Morales is and
remains unconscious throughout the execution procedure. Order 1 at 13-
14.
2022                     MORALES v. HICKMAN
unsuccessfully sought habeas review in both the federal dis-
trict court and this court. The Supreme Court again denied
certiorari after we refused to grant Morales habeas relief. See
generally Morales v. Woodford, 388 F.3d 1159, 1163-1167
(9th Cir. 2004), cert. denied, ___ U.S. ___, 126 S.Ct. 420
(2005) (describing in detail the crime, the trial and the case’s
procedural history). In addition to his § 1983 claim, Morales
again seeks post-conviction relief through an application to
file a second or successive habeas petition. See 28 U.S.C.
§ 2244(b). We address that application in a separate order. See
Morales v. Hickman, ___ (9th Cir. 2006). Here we address
only Morales’ § 1983 appeal.

                                    II.

   To understand the basis of Morales’ claim, we must first
describe in some detail the actual implementation of Protocol
No. 770, both in its original form and as modified by the dis-
trict court. After the condemned is placed in the execution
chamber, “[a] person qualified . . . or otherwise authorized by
law” inserts two intravenous lines into the inmate’s veins.3
After saline begins flowing through one of the IV lines, all
“injection team members vacate the chamber,” seal the door
and leave the condemned alone in the room. At this point, the
warden orally commands the commencement of the execu-
tion. The injection team members, positioned outside the exe-
cution chamber, begin administering the lethal drug cocktail
through the extended IV lines.

   First, the condemned receives five grams of sodium thio-
pental (also known as sodium pentothal), which, if adminis-
tered properly, will render him unconscious and therefore
insensible to pain.4 Next, the injection team administers 100
  3
    The second IV line is to “be held in reserve as a contingency line in
case of a malfunction or blockage in the first line.”
  4
    Protocol No. 770 lists, as part of the “chemicals needed for execution,”
two five-gram doses of sodium thiopental. However, the text of Protocol
                        MORALES v. HICKMAN                         2023
milligrams of pancuronium bromide (also known as Pavulon),
paralyzing the inmate’s voluntary muscles. Finally, 100 milli-
grams of potassium chloride are injected, resulting in cardiac
arrest and death.5 A physician is on hand to pronounce the
time of death.

   There is no dispute that in the absence of a properly admin-
istered anesthetic, Morales would experience the sensation of
suffocation as a result of the pancuronium bromide and excru-
ciating pain from the potassium chloride activating nerve end-
ings in Morales’ veins. See Order 1 at 3; see also Beardslee,
395 F.3d at 1071, 1074. Both parties further agree that if the
sodium thiopental is properly administered, virtually all per-
sons would be unconscious within 60 seconds and would not
experience these sensations. Order 1 at 8.

   Before the district court, Morales challenged the assump-
tion that the sodium thiopental will be properly administered.
He claimed that there exists a very real and foreseeable risk
that he will be conscious and fully experience the effects of
the second two drugs. Among his contentions are that (1) the
sodium thiopental will not have its desired effect because it is
being administered and monitored by unqualified individuals;
(2) the paralytic drug will prevent him from communicating
his conscious state and distress; (3) no officials remain in the
execution room to ensure that he is indeed unconscious and
remains so until death; and (4) Protocol No. 770 does not ade-

No. 770 provides that only one five-gram dose is prepared in anticipation
of the execution, while the other remains “unopened” and therefore, per-
haps not immediately administrable should something go wrong with the
first five-gram dose. Notably, the State claims that Protocol No. 770 has
been modified in practice to provide for the preparation of “an extra
syringe containing 1.25 grams [of sodium thiopental] . . . as a backup.”
State’s § 1983 Response Brief at 6 (“Response Brief”).
   5
     Three syringes containing 50 milligrams of pancuronium bromide and
three syringes containing 50 milligrams of potassium chloride are pre-
pared, “even though the injection procedure only calls for two of each.
The extra syringes are to be prepared as ‘stand-bys.’ ”
2024                 MORALES v. HICKMAN
quately account for other foreseeable contingencies that could
produce unnecessary suffering.

   The district court’s February 14 order found that Morales
“raised . . . substantial questions” about Protocol No. 770, as
implemented. Order 1 at 12. Relying on a detailed review of
California’s execution logs that suggest “that the inmates’
breathing may not have ceased as expected in at least six out
of 13 executions by lethal injection,” the court found that
there exists “at least some doubt as to whether the protocol
actually is functioning as intended.” Order 1 at 11. The dis-
trict court accepted the State’s expert testimony that, when
properly administered, the five gram dose of sodium thiopen-
tal “should both stop breathing and cause unconsciousness
within a minute.” Order 1 at 11. Nonetheless, it concluded
that “evidence from eyewitnesses tending to show that many
inmates continue to breathe long after they should have
ceased to do so cannot simply be disregarded on its face.”
Order 1 at 11. These findings of fact led the district court to
impose its two alternate conditions on Protocol No. 770 to
preserve what the district court characterized as Morales’
“constitutional right not to be subject to an undue risk of
extreme pain.” Order 1 at 12.

   Upon the State’s acceptance of the anesthesiologist option,
the district court in its February 16, 2006 final order modified
Protocol No. 770 to ensure the presence of a medically quali-
fied anesthesiologist during the execution procedure. (The
State has agreed to have two anesthesiologists on hand, one
inside the execution chamber and one in reserve.) In all other
respects, Protocol No. 770 remains unchanged. District Court
Order of Feb. 16 at 4 n.3, (“Order 2”) (citing Slavin declara-
tion).

                              III.

  The issue presented in this case is a narrow one. Morales
does not challenge the constitutionality of the death penalty in
                          MORALES v. HICKMAN                           2025
general nor even the constitutionality of lethal injections in
particular. His only claim is that Protocol No. 770 as currently
implemented in California, and as modified by the district
court, violates the Eighth and Fourteenth Amendments. How-
ever, we need not decide this broad issue, but need only deter-
mine whether the district court’s modification of Protocol No.
770 was an abuse of discretion in light of the court’s findings
of fact.6

   “The district court abuses its discretion when its equitable
decision is based on an error of law or a clearly erroneous fac-
tual finding.” United States v. Washington, 157 F.3d 630, 642
(9th Cir. 1998). “An abuse of discretion is a plain error, dis-
cretion exercised to an end not justified by the evidence, a
judgment that is clearly against the logic and effect of the
facts as are found.” Int’l Jensen, Inc. v. Metrosound U.S.A.,
Inc., 4 F.3d 819, 822 (9th Cir. 1993) (internal quotations and
citation omitted).

   [1] Challenges to Protocol No. 770 have recently come
before us, and in both cases we rejected the inmates’ asser-
tions that the district court abused its discretion in upholding
the Protocol. See Beardslee, 395 F.3d at 1076; Cooper v. Rim-
mer, 379 F.3d 1029, 1033 (9th Cir. 2004). In Cooper, we
declined a stay of execution in large part because Cooper
raised his Eighth Amendment claim “at the eleventh hour,”
and moreover “Cooper [fell] short of showing that he is sub-
ject to an unnecessary risk of unconstitutional pain or suffer-
ing such that his execution by lethal injection under
California’s protocol must be restrained.” Cooper, 379 F.3d at
  6
    The State has not appealed the district court’s findings of fact or the
district court’s imposition of conditions on the implementation of Protocol
No. 770. The State does continue to argue that not all the evidence the dis-
trict court considered troubling suggests consciousness. For example, the
State asserts that “[a]lthough chest wall movement may be observed after
delivery of thiopental, such movement is not associated with breathing,
nor is it reflective of the subject’s state of consciousness.” Response Brief
at 8.
2026                  MORALES v. HICKMAN
1031, 1033. But as the district court found in this case, Mora-
les’ diligence allowed the court to more thoroughly consider
the relevant legal and factual issues that ultimately bore on its
conclusion. Order 1 at 6.

   [2] In Beardslee, we held that although Beardslee had acted
“promptly,” 395 F.3d at 1069, we could not, given our defer-
ential standard of review and based on the “limited record” in
that case, conclude that the district court had abused its dis-
cretion in denying a stay of execution. 395 F.3d at 1076.
Nonetheless, we acknowledged that Beardslee’s limited evi-
dence for the potential of his being conscious during his exe-
cution “raises extremely troubling questions about the
protocol.” Id. at 1075. In contrast, as the district court found,
Morales “raise[s] more substantial questions than his counter-
parts in Cooper and Beardslee.” Order 1 at 12. Unlike the ear-
lier challenges to Protocol No. 770, in this case the district
court had a more developed record, including evidence from
executions subsequent to and including Beardslee’s. Based on
that record, the district court has, in Beardslee’s terms, found
that Morales has “shown sufficient likelihood that the admin-
istration [of the sodium thiopental] will be improper in his
case, or that there are specific risks unique to him that require
modification of the protocol.” Beardslee, 395 F.3d at 1076.

                              IV.

   The district court’s modification of Protocol No. 770, rely-
ing in large part on the testimony of Morales’ own expert,
attempted to accommodate Morales’ objections and cure the
perceived constitutional infirmities. The district court exer-
cised its equitable powers to “preserve[ ] both the State’s
interest in proceeding with [Morales’] execution and [Mora-
les’] constitutional right not to be subject to an undue risk of
extreme pain.” Order 1 at 12. Morales continues, however, to
express concern that the precise nature and scope of the anes-
thesiologists’ role in the execution is uncertain, and the modi-
fications are therefore deficient. Specifically, Morales claims
                     MORALES v. HICKMAN                        2027
that the State has “made no commitment as to how the new
procedure will work and what the anesthesiologist [present in
the execution chamber] will do, other than to monitor Mr.
Morales’ level of unconsciousness.” Morales § 1983 Opening
Brief at 20 (“Opening Brief”). Further, Morales asserts that
the anesthesiologists’ role is limited and therefore they “will
not be able meaningfully to ensure that the execution is per-
formed humanely.” Opening Brief at 21. Essentially, we con-
sider Morales’ principal challenge to the amended protocol to
be: “[t]he presence of the monitor will serve no purpose if the
doctor is powerless to act on, or cause the injection team to
act on, his awareness that Mr. Morales is in fact conscious
and in pain.” Opening Brief at 21.

   [3] The district court’s Orders adequately address Morales’
concerns. The Orders provide specifically that an anesthesiol-
ogist will “independent[ly] verif[y], through direct observa-
tion and examination . . . , in a manner comparable to that
normally used in medical settings where a combination of
sedative and paralytic medications is administered, that
[Morales] in fact is unconscious before either pancuronium
bromide or potassium chloride is injected.” Order 1 at 14.
Further,

    at least one of the anesthesiologists [shall] be present
    in the execution chamber and . . . the anesthesiolo-
    gists’ duties [shall] be performed in accordance with
    current professional medical standards. In particular,
    the anesthesiologists may use and would be expected
    to use whatever monitoring equipment a board-
    certified anesthesiologist would deem necessary to
    ensure that a patient to whom a combination of a
    barbiturate and a paralytic have been administered is
    fully unconscious at all times following the adminis-
    tration of sodium thiopental.

Order 2 at 4.
2028                  MORALES v. HICKMAN
   [4] In addressing Morales’ concerns about the scope of the
anesthesiologists’ monitoring role, the court explicitly clari-
fied that the anesthesiologists will “take all medically appro-
priate steps necessary to ensure that [Morales] is and remains
unconscious,” Order 2 at 4, n.3 (emphasis added), meaning
that he must be unconscious before and after he is injected
with pancuronium bromide or potassium chloride. Thus if the
anesthesiologists are unable to ensure that Morales “is [or]
remains unconscious,” we construe the order as clearly con-
templating that they have the authority to take “all medically
appropriate steps” — either alone or in conjunction with the
injection team — to immediately place or return Morales into
an unconscious state or to otherwise alleviate the painful
effects of either or both the pancuronium bromide or potas-
sium chloride. We also construe the “take all medically appro-
priate steps” language to require that the anesthesiologists
have available the medical supplies and medications a board-
certified anesthesiologist would deem necessary to carry out
his or her responsibilities to “ensure” Morales is and remains
unconscious.

   [5] The district court did not abuse its discretion in fashion-
ing a remedy that would alleviate the substantial concerns it
found with the way Protocol No. 770 was being implemented.
In light of the district court’s thorough response to Morales’
objections and our understanding of the district court’s
Orders, Morales’ appeal from the district court’s denial of
injunctive relief is denied.

  PETITION FOR STAY OF EXECUTION DENIED.
