Cook v. Brewer ( 2011 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL WAYNE COOK, 
Plaintiff-Appellant,
No. 11-15303
v.
JANICE K. BREWER; CHARLES L.  D.C. No.
2:10-cv-02454-RCB
RYAN; ERNEST TRUJILLO; CARSON
OPINION
MCWILLIAMS; DOES 1-50,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
Robert C. Broomfield, Senior District Judge, Presiding
Argued and Submitted
March 10, 2011—Portland, Oregon
Filed March 16, 2011
Before: Diarmuid F. O’Scannlain, Susan P. Graber, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan
3891
COOK v. BREWER 3893
COUNSEL
Jon M. Sands, Federal Public Defender, Dale A. Baich
(argued), Robin C. Konrad, Golnoosh Farzaneh, Assistant
Federal Public Defenders, Phoenix, Arizona, for the plaintiff-
appellant.
3894 COOK v. BREWER
Thomas C. Horne, Attorney General, Kent E. Cattani
(argued), Chief Counsel, Capital Litigation Section, Phoenix,
Arizona, for the defendants-appellees.
OPINION
CALLAHAN, Circuit Judge:
Plaintiff Daniel Wayne Cook (“Cook”), an Arizona pris-
oner scheduled for execution on April 5, 2011, filed this
action for equitable, injunctive and declaratory relief under 42
U.S.C. § 1983 (“§ 1983”) against Janice Brewer, Governor of
Arizona, as well as Charles Ryan, Ernest Trujillo, and Carson
McWilliams, who are Arizona Department of Corrections
(“ADC”) officials (collectively, “Defendants”). The district
court granted Defendants’ motion to dismiss for failure to
state a claim upon which relief may be granted under Fed. R.
Civ. P. 12(b)(6) (“Rule 12(b)(6)”). On appeal, Cook chal-
lenges the district court’s decisions regarding two of his
Eighth Amendment claims.1 First, he argues that Defendants’
intent to use a foreign manufactured non-Food and Drug
Administration (“FDA”) approved substance (which Defen-
dants state is sodium thiopental) in his execution creates a
substantial and unnecessary risk of unconstitutional pain. Sec-
ond, Cook contends that the administration of this substance
by medical professionals would constitute deliberate indiffer-
ence to his right to be free from cruel and unusual punish-
ment. We affirm.
1
Cook raised a third claim in his Complaint, that the State’s failure to
provide him with notice and information regarding the sodium thiopental
that will be used in his execution violates his Fourteenth Amendment
rights, but he does not challenge the district court’s decision on that claim
in this appeal.
COOK v. BREWER 3895
I
Cook is scheduled for execution on April 5, 2011, for his
role in two 1987 murders in Lake Havasu City, Arizona. State
v. Cook, 821 P.2d 731, 738 (Ariz. 1991). Cook and his room-
mate tortured, sodomized and killed Carlos Cruz Ramos and
Kevin Swaney. Id. at 736-37. A jury thereafter convicted him
of two counts of first-degree murder and the court sentenced
him to death under Arizona Revised Statutes §§ 13-503 and
13-703. Id. at 737-38.
After the Arizona courts denied appellate and post-
conviction relief, Cook filed a petition for writ of habeas cor-
pus, which the district court denied and we thereafter
affirmed. Cook v. Schriro, 538 F.3d 1000 (9th Cir. 2008),
cert. denied 129 S. Ct. 1033 (2009). On November 10, 2010,
after the State sought a warrant of execution, Cook filed this
§ 1983 action in which he raised several claims related to the
State’s use of sodium thiopental, one of three drugs used as
part of execution by lethal injection. The district court subse-
quently granted Defendants’ Rule 12(b)(6) motion to dismiss
for failure to state a claim upon which relief may be granted.
Cook then timely filed this appeal.
II
We review de novo a district court’s order granting a
motion to dismiss under Rule 12(b)(6). Shroyer v. New
Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir.
2010). A pleading must include a short and plain statement of
the claim showing that the pleader is entitled to relief. Fed. R.
Civ. P. 8(a)(2). “[T]he pleading standard Rule 8 announces
does not require ‘detailed factual allegations,’ but it demands
more than an unadorned, the-defendant-unlawfully-harmed-
me accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)). “[A] plaintiff’s obligation to provide the grounds
of his entitle[ment] to relief requires more than labels and
3896 COOK v. BREWER
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550 U.S. at 555 (inter-
nal quotation marks omitted).
[1] “A Rule 12(b)(6) motion tests the legal sufficiency of
a claim. A claim may be dismissed only if ‘it appears beyond
doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief.’ ” Navarro v.
Block, 250 F.3d 729, 732 (9th Cir. 2001) (quoting Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on
its face.’ ” Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550
U.S. at 570). “A claim has facial plausibility when the plain-
tiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the mis-
conduct alleged.” Id.[2] For a capital prisoner to establish an Eighth Amend-
ment claim for exposure to future harm of severe pain consti-
tuting cruel and unusual punishment from an execution
method, he is required to show that “the conditions presenting
the risk must be ‘sure or very likely to cause serious illness
and needless suffering,’ and give rise to ‘sufficiently immi-
nent dangers.’ ” Baze v. Rees, 553 U.S. 35, 50 (2008) (Rob-
erts, C.J., plurality opinion) (quoting Helling v. McKinney,
509 U.S. 25, 33, 34-35 (1993).2 In Baze, the Court explained
2
Neither party disputes that the “sure or very likely” and “substantial
risk of serious harm” standard articulated by the plurality opinion in Baze
is the proper standard here. 553 U.S. at 50. Notably, in Dickens v. Brewer,
631 F.3d 1139 (9th Cir. 2011) we affirmed that, like every other circuit
court to consider the issue, “the Baze plurality’s substantial risk standard
is the controlling standard for assessing the constitutionality of an execu-
tion protocol.” Id. at 1144-46; citing Brewer v. Landrigan, 131 S. Ct. 445(2010) (holding that an Arizona execution could proceed because there
was no evidence that the drug was “ ‘sure or very likely to cause serious
illness and needless suffering’ ” (quoting Baze, 553 U.S. at 50) (emphasis
omitted)); Raby v. Livingston, 600 F.3d 552, 557 (5th Cir. 2010); Nooner
COOK v. BREWER 3897
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 Amend-
ment.’ ” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 842,
846 & n.9 (1994)).
III
Because Cook committed his crimes before November 23,
1992, he has the choice to be executed by either lethal injec-
tion or lethal gas. See Ariz. Rev. Stat. § 13-757(B). Cook has
not yet chosen a method of execution, and if he does not make
a choice, the ADC must use lethal injection to execute him.
Id.Arizona’s protocol for execution by lethal injection
requires the sequential administration of sodium thiopental,
pancuronium bromide, and potassium chloride. Dickens, 631
F.3d at 1142.
Sodium thiopental is a fast-acting barbiturate that
anesthetizes the inmate and permits the other chemi-
cals to be administered without causing pain.
Pancuronium bromide is a paralytic neuromuscular
blocking agent that causes complete paralyzation and
suffocation. Potassium chloride induces cardiac
arrest. It is uncontested on this record that, if an
inmate is not properly anesthetized by the sodium
thiopental at the start of the execution, he will expe-
rience significant pain and suffering from the admin-
v. Norris, 594 F.3d 592, 598-99 (8th Cir. 2010); Jackson v. Danberg, 594
F.3d 210, 219-22 (3d Cir. 2010); Cooey v. Strickland, 589 F.3d 210, 220
(6th Cir. 2009); Clemons v. Crawford, 585 F.3d 1119, 1125-26 (8th Cir.
2009); Harbison v. Little, 571 F.3d 531, 535 (6th Cir. 2009); Emmett v.
Johnson, 532 F.3d 291, 298 (4th Cir. 2008).
3898 COOK v. BREWER
istration of the pancuronium bromide and potassium
chloride. If the sodium thiopental is administered
properly, however, there is no risk of pain during the
execution.
Id.Underlying Cook’s claims is the fact that Arizona has
obtained sodium thiopental from a foreign source, rather than
from the United States. In his reply brief, Cook summarizes
the five allegations raised in his Complaint, which he asserts
we must take as true. First, he alleges that the ADC “lacks the
appropriate safeguards to ensure the imported substance it
obtained is not contaminated, is viable, and is actually sodium
thiopental.” Second, “the substance was obtained in violation
of federal law.” Third, “a foreign-manufactured drug was pro-
duced in an environment such that the drug may not be effec-
tive, and that the drug could be contaminated or
compromised.” Fourth, “drugs from foreign countries do not
have the same assurance of safety as drugs actually regulated
by the FDA, due to the risk that counterfeit or unapproved
drugs will be sent to consumers and also because without reg-
ulation of repackaging, storage conditions, and many other
factors, drugs delivered to the American public from foreign
countries may be very different from FDA approved drugs
with respect to formulation, potency, quality, and labeling”
(quoting Iverson v. Pfizer, Inc. (In re Canadian Import Anti-
trust Litig.), 470 F.3d 785, 789 (8th Cir. 2006) (internal cita-
tions omitted)). Fifth, “this substance will cause Cook to
suffer pain if the drug is contaminated, compromised, or sub-
standard, which in turn will cause excruciating pain when the
next two drugs are administered.”
Cook contends that the district court erred in granting
Defendants’ motion to dismiss for two reasons. First, he
argues that the foreign manufactured non-FDA approved
sodium thiopental may be “contaminated, compromised, or
otherwise ineffective, such that it will not properly anesthetize
COOK v. BREWER 3899
him” or “might not actually be sodium thiopental at all” and
that “using an unapproved substance from an unknown manu-
facturer in an execution gives rise to a substantial risk of
unconstitutional pain” in violation of the Eighth Amendment.
Second, Cook contends that the administration of “an unap-
proved substance from an unknown manufacturer in an execu-
tion by medical professionals constitutes deliberate
indifference” to his right to be free from cruel and unusual
punishment in violation of the Eighth Amendment.
IV
At issue for both of these claims is whether Cook has suffi-
ciently satisfied, to survive a motion to dismiss, Rule 8(a)’s
pleading requirements to state facially plausible claims that
the drug the ADC has obtained is “sure or very likely to cause
serious illness and needless suffering” in violation of his
Eighth Amendment right to be free from cruel and unusual
punishment. See Baze, 553 U.S. at 50; see also Iqbal, 129 S.
Ct. at 1949 (pleading standard). We conclude that Cook’s
allegations fail to meet this standard.
While the pleading standard for Rule 8(a) is liberal, the
“[f]actual allegations must be enough to raise a right to relief
above the speculative level.” Twombly, 550 U.S. at 555. In
Iqbal, the Court noted that “[t]o survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’ ”
Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 570).
[3] Cook’s allegations that foreign manufactured non-FDA
approved drugs “may not be effective,” “could be contami-
nated or compromised,” and “may be very different from
FDA approved drugs with respect to formulation, potency,
quality, and labeling” are all speculative and overly general-
ized claims applicable to every drug produced outside the
United States. Cook does not make any specific allegations
about the manufacturing process, formulation, potency, qual-
3900 COOK v. BREWER
ity, or labeling of the drug at issue here. Cook also fails to
allege any facts to support his claim that the drug might not
actually be sodium thiopental or that it could be contaminated,
compromised, or otherwise substandard such that it may not
effectively anesthetize him and cause him unconstitutional
pain when the next two drugs are administered. Id. Cook’s
allegation that the ADC lacks appropriate safeguards to
ensure the sodium thiopental it obtained “is not contaminated,
is viable, and is actually sodium thiopental” is also conclusory
and without any supporting factual allegations. Moreover,
Cook’s assertion that “the substance was obtained in violation
of federal law” is again speculative and Cook has not made
a sufficient showing that the lack of FDA approval of the
sodium thiopental at issue here makes it sufficiently likely
that the sodium thiopental is either not what it purports to be,
or is otherwise adulterated.3 Rather, Cook relies on his allega-
tions that Arizona’s sodium thiopental is imported and not
approved by the FDA. But Landrigan, 131 S. Ct. 445, advises
that these facts are not sufficient to state a plausible Eighth
Amendment claim. Like the instant case, Landrigan involved
an Arizona death row inmate challenging Arizona’s use of
imported, non-FDA-approved sodium thiopental. Reversing
the Ninth Circuit, the Supreme Court held that the district
court abused its discretion in granting Landrigan’s motion for
a preliminary injunction to stay his execution.
[4] Cook distinguishes Landrigan on the grounds that it
involved a preliminary injunction, whereas the instant case
involves a motion to dismiss. Thus, while Landrigan had to
provide enough evidence to make success on his claim “like-
ly,” Cook only needs to allege enough facts to make his claim
“plausible.” Nevertheless, the Court in Landrigan found “no
evidence in the record to suggest that the drug obtained from
3
We express no view as to whether the sodium thiopental was obtained
in violation of federal law. The actual legality of importing this drug is not
at issue here, we are only concerned with the constitutionality of its use
on Mr. Cook.
COOK v. BREWER 3901
a foreign source is unsafe.” Id. This statement clearly implies
that the facts that Arizona’s sodium thiopental is imported and
non-FDA approved do not themselves constitute evidence of
danger. Thus, in this case, Cook’s bare allegations that the
sodium thiopental is imported and non-FDA approved, even
taken as true, do not plausibly suggest that the drug is “sure
or very likely to cause serious illness and needless suffering”
or otherwise creates a “substantial risk of serious harm” in
violation of Cook’s Eighth Amendment right to be free from
cruel and unusual punishment sufficient to survive a motion
to dismiss. Baze, 553 U.S. at 50; see also Iqbal, 129 S. Ct. at
1949.
[5] We also reject any claim Cook makes that the adminis-
tration of the allegedly incorrect, diluted or adulterated drug
would cause him excrutiating pain when the other two drugs
are administered.4 We have recently upheld Arizona’s lethal
injection protocol in Dickens, when we stated that “the proto-
col’s safeguards are adequate under the Baze standard.” 631
F.3d at 1141. We noted the following facts about the adminis-
tration of the sodium thiopental:
After the sodium thiopental is administered, the
[Members of the Medical Team (“MTMs”)] confirm
that the inmate is unconscious by “sight and sound”
using the camera and microphone, and an MTM
enters the execution chamber to physically confirm
unconsciousness. If the inmate is conscious, the
Director of the [ADC] may order the [Special Opera-
tions Team (“SOT”)] members to administer an
additional dose of sodium thiopental, and the MTMs
go through the same steps to verify unconsciousness.
The SOT members cannot administer the
4
To the extent that Cook alleges that the process of administering a sub-
stance that is not sodium thiopental, or is a diluted or adulterated version
of sodium thiopental could itself potentially cause him unconstitutional
pain, he offers no factual support to support such an assertion.
3902 COOK v. BREWER
pancuronium bromide until the MTMs have con-
firmed that the inmate is unconscious and at least
three minutes have elapsed from the commencement
of the administration of the sodium thiopental. The
IV lines are flushed with heparin/saline between
each injection, to ensure that they are clean and func-
tioning properly.
Id. at 1143.
[6] Nothing in Cook’s Complaint suggests that, even if he
were to receive a substance that was not sodium thiopental, or
was diluted or adulterated and failed to properly anesthetize
him, Arizona’s protocol would fail to identify the problem
and halt the process to prevent the administration of the
pancuronium bromide and potassium chloride. Cook’s reli-
ance on speculative and conclusory allegations is insufficient
to state a facially plausible claim that the sodium thiopental
the ADC has obtained is “sure or very likely to cause serious
illness and needless suffering” in violation of his Eighth
Amendment right to be free from cruel and unusual punish-
ment. See Baze, 553 U.S. at 50; see also Iqbal, 129 S. Ct. at
1949. We therefore affirm the district court as to Cook’s first
claim.
[7] Cook’s second claim is dependant on the sufficiency of
his first claim. Cook argues that the medical professionals
who would administer the foreign-manufactured non-FDA
approved substance would know that administering this drug
involves substantial risks and that by administering the drug
they would demonstrate deliberate indifference to his medical
needs. However, because Cook fails to make a facially plausi-
ble claim that the sodium thiopental at issue here is “sure or
very likely to cause serious illness and needless suffering,” or
otherwise creates a “substantial risk of serious harm” he can-
not show that the medical officials administering the drug
would be medically indifferent. Id.COOK v. BREWER 3903
Because Cook has failed to demonstrate that the district
court erred as to either of his claims, the judgment of the dis-
trict court is
AFFIRMED.