                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 October 12, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                   Clerk of Court
                           FOR THE TENTH CIRCUIT


    DONALD WACKERLY, II,

               Plaintiff-Appellant,

    v.                                                  No. 10-6237
                                                 (D.C. No. 5:10-cv-01016-F)
    JUSTIN JONES, in his capacity as                    (W.D. Okla.)
    Director of the Oklahoma Department
    of Corrections; RANDALL G.
    WORKMAN, in his capacity as
    Warden of the Oklahoma State
    Penitentiary; DOES, 1-50, unknown
    executioners in their capacities as
    employees and/or agents of the
    Oklahoma Department of Corrections,

               Defendants-Appellees.


                            ORDER AND JUDGMENT *


Before LUCERO, TYMKOVICH, and GORSUCH, Circuit Judges.




*
       After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument. 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judgment is not binding precedent, except under the doctrines of law of the case,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.
      Plaintiff Donald Wackerly II, who is scheduled for execution by lethal

injection at the Oklahoma State Penitentiary on October 14, 2010, appeals from

the district court’s denial of his motion for a preliminary injunction seeking to

stay his execution. The district court concluded there was no likelihood that

Mr. Wackerly would succeed in his underlying challenge to the method of his

execution and, accordingly, denied a stay under the legal standard for stays of

execution stated in Hill v. McDonough, 547 U.S 573, 584 (2006), and Hamilton v.

Jones, 472 F.3d 814, 815 (10th Cir. 2007) (per curiam). We review the district

court’s decision for an abuse of discretion. Hamilton, 472 F.3d at 815 (following

Bowersox v. Williams, 517 U.S. 345, 346 (1996)). Finding none, we affirm.

      The Supreme Court clarified the analysis of challenges to lethal injection

procedures in Baze v. Rees, 553 U.S. 35 (2008). 1 The basic standard for an

Eighth Amendment violation in this context is the demonstration of “a substantial

risk of serious harm,” id. at 50 (quotation omitted), alternatively described as “an

objectively intolerable risk of harm that prevents prison officials from pleading

that they were subjectively blameless for purposes of the Eighth Amendment,” id.

(quotation omitted). The Court emphasized that the conditions at issue “must be

sure or very likely” to “give rise to sufficiently imminent dangers.” Id. (quotation

1
      We agree with the general view that the controlling principles established
in Baze are those articulated by the plurality opinion authored by the Chief Justice
and joined by Justices Kennedy and Alito. See, e.g., Jackson v. Danberg,
594 F.3d 210, 216-23 (3d Cir. 2010), cert. denied, 2010 WL 2551997 (U.S.
Oct. 12, 2010).

                                         -2-
omitted). And the Court explained that “[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. Finally, Baze placed its substantive standard at the

center of the stay analysis: “A stay of execution may not be granted on grounds

such as those asserted here 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 (emphasis added). Mr. Wackerly has not demonstrated

such a risk in connection with his impending execution.

      We have already upheld the three-drug lethal injection process used in

Oklahoma–even before the process was improved by additional safeguards

recently included in the governing protocol–in Hamilton. And the Supreme

Court’s approval of a substantially similar protocol in Baze only confirms our

decision in Hamilton: “A State with a lethal injection protocol substantially

similar to the protocol we uphold today would not create a risk that meets [the

Baze constitutional] standard.” Baze, 553 U.S. at 61. Mr. Wackerly claims that

circumstances pertaining to his upcoming execution create a unique risk that takes

it out of the scope of these controlling decisions. After holding an evidentiary

hearing, the district court concluded that he had not substantiated that claim, and

we agree with that conclusion.

                                          -3-
       The thrust of Mr. Wackerly’s case boils down to three interrelated points,

all centered on the sodium thiopental to be used at his execution. 2 First, the

informal way in which Oklahoma acquired the necessary five grams of the

drug–from the Arkansas Department of Corrections rather than through ordinary

distribution from the manufacturer–rendered its integrity suspect. Second, the

lack of an additional supply of the drug to provide a backup should the quantity

obtained from Arkansas prove unusable or be lost through procedural mishap,

puts the orderly process of the execution at imminent risk. Third, the Oklahoma

Director of Corrections claims authority to alter the lethal injection protocol sua

sponte, without adequate notice for court review, when exigencies require and, in

light of the first two points, this authority presents a risk that Mr. Wackerly will

be executed pursuant to a procedure he will have had no opportunity to test in

court. We briefly address these three points sequentially, though we note that the

deficiency of Mr. Wackerly’s case relating to the first two inherently undermine

the last.

       We agree with the district court that the evidence simply failed to show a

significant risk that the sodium thiopental was compromised. No specific facts

were adduced to indicate any particular basis for questioning the integrity of the


2
      Sodium thiopental is an ultrashort-acting barbiturate used to anesthetize the
prisoner before the introduction of vecuronium bromide, a paralytic agent, and
potassium chloride, which stops the heart, five minutes later. Oklahoma’s current
protocol specifies the use of five grams of sodium thiopental.

                                          -4-
drug, and the only expert to render a definitive opinion on the matter found no

cause for concern.

      Nor did Mr. Wackerly demonstrate a substantial risk that the five grams of

sodium thiopental would prove insufficient. Undisputed expert testimony

established that half that amount was more than sufficient to fully anesthetize the

prisoner. Indeed, protocols employing quantities of sodium thiopental in the two

to three gram range have been upheld in other cases, including Baze itself. See,

e.g., Baze, 553 U.S. at 45 (3 grams); Nooner v. Norris, 594 F.3d 592, 607

(8th Cir. 2010) (3 grams); Emmett v. Johnson, 532 F.3d 291, 294 (4th Cir. 2008)

(2 grams); see also Cooey v. Strickland, 589 F.3d 210, 219 (6th Cir. 2009) (noting

use of 2 grams in three-drug protocol until 2009, when State switched to one-drug

protocol). Moreover, as the record showed and the district court emphasized, the

drug is introduced in multiple injections through two separate IVs. Thus, there is

a redundancy built into the system that significantly attenuates Mr. Wackerly’s

objection about the lack of a backup dose. Again, we agree with the district court

that there is no substantial risk posed by the quantity of sodium thiopental

available for Mr. Wackerly’s execution.

      Given the above conclusions, there is no constitutionally significant risk

that Oklahoma will need to resort to any alternative procedures. In light of that

fact, we need not address the hypothetical scenario in which Oklahoma sua sponte

amends its protocol. Cf. Jackson v. Danberg, 594 F.3d 210, 227 (3d Cir. 2010)

                                          -5-
(holding that “by speculating about what [prison] officials might do in what the

record intimates to be a very unlikely hypothetical scenario in which the backup

IV line cannot be established, the Plaintiffs have failed to show the degree of

imminence [of risk] Baze requires”), cert. denied, 2010 WL 2551997 (U.S.

Oct. 12, 2010). We would address such concerns in the event that complications

should arise.

      The order of judgment of the district court denying a stay of execution is

AFFIRMED. The motion for a stay of execution on appeal is DENIED as moot.

Mr. Wackerly’s motion to proceed in forma pauperis is GRANTED. In light of

our disposition of the appeal, a response brief from the government is not

necessary.


                                       ENTERED FOR THE COURT
                                       PER CURIAM




                                         -6-
