                                                                          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


                                      Page 2 of 14
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


                                    Page 3 of 14
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.


                                    Page 4 of 14
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




                                    Page 5 of 14
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.

                                    Page 6 of 14
     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 &




                                    Page 7 of 14
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.

                                    Page 8 of 14
     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.

                                    Page 9 of 14
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 at

1146 (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


                                    Page 10 of 14
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




                                    Page 11 of 14
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



                                   Page 12 of 14
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.




                                     Page 13 of 14
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.




                                  Page 14 of 14
