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Samuel Villegas v. Janice K Brewer

May 15, 2012

SAMUEL VILLEGAS LOPEZ, PLAINTIFF-APPELLANT,
v.
JANICE K BREWER, GOVERNOR OF ARIZONA; CHARLES L. RYAN, DIRECTOR, ARIZONA DEPARTMENT OF CORRECTIONS; RON CREDIO, WARDEN, ARIZONA DEPARTMENT OF CORRECTIONS-EYMAN; LANCE R. HETMER, NAMED AS: LANCE HETMER/WARDEN, ARIZONA DEPARTMENT OF CORRECTIONS- FLORENCE; UNKNOWN PARTIES, NAMED AS: IV TEAM LEADER; IV TEAM MEMBERS 1-5; SPECIAL OPERATIONS TEAM LEADER; SPECIAL OPERATIONS TEAM RECORDER; SPECIAL OPERATIONS TEAM MEMBERS 1-5; AND DOES 1-25, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the District of Arizona Neil V. Wake, District Judge, Presiding D.C. No. 2:12-cv-00245-NVW

The opinion of the court was delivered by: McKEOWN, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted May 14, 2012-San Francisco, California

Before: M. Margaret McKeown, Marsha S. Berzon, and Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge McKeown;

Partial Concurrence and Partial Dissent by Judge Berzon

OPINION

We embark upon this opinion with deja vu, the feeling that we have been here before, but with the knowledge that we will likely be here again. We have entertained, usually at the last minute, a number of challenges to Arizona's execution protocol. No court has determined the constitutionality of Arizona's current death penalty protocol, adopted in January 2012, yet we have been asked to address individual provisions of the protocol in the abstract, without a constitutionally firm base. Further complicating our task, in certain respects, the actual procedures followed during individual executions have not been consistent; instead, in the intervening two months since we issued Towery v. Brewer, 672 F.3d 650 (9th Cir. 2012), there is uncertainty as to how the next execution will be carried out. The State continues to cling to its discretion, all the while urging us-during oral argument in the waning hours before execution-to trust that it will exercise its discretion in a constitutionally permissible manner. The State's insistence "on amending its execution protocol on an ad hoc basis-through add-on practices, trial court representations and acknowledgments, and last minute written amendments- leav[es] the courts with a rolling protocol that forces us to engage with serious constitutional questions and complicated factual issues in the waning hours before executions." Id. at 653. Review of death penalty cases is a grim and difficult undertaking, even without these complications.

BACKGROUND

Arizona death-row inmates Robert Charles Towery, Robert Henry Moormann, Pete Rovogich, Thomas Arnold Kemp, Milo McCormick Stanley, and Samuel Villegas Lopez brought this action under 42 U.S.C. § 1983, asserting that the Arizona Department of Corrections' (the "ADC") execution protocol violates the Eighth Amendment.*fn1 Lopez, one of the named plaintiffs with an impending execution date, moved the district court for a preliminary injunction against the ADC's use of its current lethal injection protocol. The district court denied relief and Lopez appealed. We affirm.

In Towery v. Brewer, we considered an almost equivalent challenge to Arizona's current execution protocol by another named plaintiff in this case. In light of the extensive prior opinions, we will not repeat the chronology and background. See id. at 654-55; see also Dickens v. Brewer, 631 F.3d 1139 (9th Cir. 2011). Lopez's challenge, in effect, picks up where Towery left off.*fn2

In the district court, Lopez alleged that: 1) the ADC's medical procedures for inserting IV catheters in condemned prisoners violates his Eighth Amendment rights; 2) the ADC's January 25, 2012, amendment to Department Order 710 (the "2012 Protocol") violates his right to equal protection under the Fourteenth Amendment; and 3) the ADC's execution protocol violates his rights of access to counsel and the courts.

Lopez moved for a preliminary injunction to enjoin his execution to allow for litigation of these claims. The district court considered the evidence in the record and, without holding an evidentiary hearing, denied the request for a preliminary injunction.

The district court held that Lopez had not presented a substantial likelihood of success on the merits regarding his claim that the 2012 Protocol facially violates the Eighth Amendment. Lopez claimed that the ADC's actions surrounding the insertion of IV catheters in condemned prisoners demonstrates an objectively intolerable risk of harm, even where a one-drug protocol is used instead of a three-drug protocol. The district court held that the mere presence of pain and discomfort resulting from the placement of IV lines did not constitute "an objectively intolerable risk of harm" and that some pain was an inescapable consequence of death.

Lopez also claimed that the 2012 Protocol violates his right to equal protection because each of the prisoners executed since the adoption of the Protocol has been treated differently with respect to IV placement and that these variances affected the risk of pain to which each was subjected. Because individualized and changing factors may impact IV placement and because use of a femoral catheter is no more likely to create a risk of cruel and unusual punishment than the use of a peripheral catheter, the district court concluded that Lopez failed to raise serious questions on the merits of his equal protection claim.

Finally, the district court upheld the prohibition on in-person non-contact visitation with the condemned's attorney after 7:00 a.m. on the day of the scheduled execution. It found the prohibition proper because communication with counsel by telephone is still permitted past 7:00 a.m. The district also determined that Lopez is not entitled to have counsel observe the IV-placement procedure.

ANALYSIS

On appeal, Lopez challenges four aspects of the district court's denial of the preliminary injunction: 1) application of the "serious questions" test; 2) the conclusion that the 2012 Protocol does not violate Lopez's Eighth Amendment rights; 3) the conclusions regarding the ADC's restrictions on in-person non-contact counsel visits; and 4) the decision not to hold an evidentiary hearing. We review this denial of a preliminary injunction for abuse of discretion. Lands Council v. McNair, 537 F.3d 981, 986 (9th Cir. 2008) (en banc). An abuse of discretion will be found if the district court based its decision "on an erroneous legal standard or clearly erroneous findings of fact." Id. We note that in this appeal Lopez did not advance the argument offered by the dissent, namely a due process challenge based on unfettered discretion and transparency.

I. PRELIMINARY INJUNCTION STANDARD

[1] The district court appropriately articulated the legal principles governing the grant of a preliminary injunction and applied these principles to the limited facts presented by Lopez. A preliminary injunction is "an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (citation omitted). To obtain preliminary injunctive relief, Lopez must demonstrate that: 1) he is likely to succeed on the merits of such a claim; 2) he is likely to suffer irrepara- ble harm in the absence of preliminary relief; 3) the balance of equities tips in his favor; and 4) that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). As we emphasized in Towery, these principles apply even in the context of an impending execution. 672 F.3d at 657 (citing Hill v. McDonough, 547 U.S. 573, 583-84 (2006)).

[2] Under the "serious questions" variation of the test, a preliminary injunction is proper if there are serious questions going to the merits; there is a likelihood of irreparable injury to the plaintiff; the balance of hardships tips sharply in favor of the plaintiff; and the injunction is in the public interest. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). The elements of the preliminary injunction test must be balanced, so that a stronger showing of one element may offset a weaker showing of another. " '[S]erious questions going to the merits' and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest." Id. at 1135.

[3] Lopez takes issue with the district court's analysis, arguing that the court failed to balance the four Winter factors and did not consider whether Lopez presented serious questions going to the merits of the claims. The district court, however, articulated the Winter standard and discussed each of the elements. Although the court's discussion of irreparable harm, the balance of equities, and the public interest is brief, the court did engage with each of these three factors, and thus did not apply an incorrect legal standard. See United States v. Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009) (en banc) (a court abuses its discretion if it fails to identify and apply the correct legal rule).

[4] To the extent Lopez argues that the "serious questions going to the merits" consideration is a separate and indepen- dent analysis from the court's assessment of Lopez's likelihood of success on the merits, Lopez misunderstands our precedent. See M.R. v. Dreyfus, 663 F.3d 1100, 1108 (9th Cir. 2011) (articulating preliminary injunction standard in terms of likelihood of success on the merits or serious questions going to the merits). Because the district court did not err in determining that Lopez failed to ...


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