Paul Rhoades v. Brent Reinke ( 2011 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL EZRA RHOADES, 
Petitioner-Appellant, No. 11-35940
v. D.C. No.
BRENT REINKE, RANDY BLADES,  CV-11-0000445-
DOES 1-50, and/or UNKNOWN REB
EXECUTIONERS, OPINION
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
Filed November 16, 2011
Before: Ronald M. Gould, Jay S. Bybee, and Carlos T. Bea,
Circuit Judges.
Per Curiam Opinion
*By stipulation of the parties, Magistrate Judge Ronald E. Bush pre-
sided 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).
20433
RHOADES v. REINKE 20435
COUNSEL
Oliver W. Loewy and Teresa A. Hampton, Capital Habeas
Unit, Federal Defenders Services of Idaho, Inc., for appellant
Paul Ezra Rhoades.
Lawrence G. Wasden, Attorney General of Idaho, Mark A.
Kubinski, Krista L. Howard, and L. LaMont Anderson, Dep-
uty Attorneys General of Idaho, Idaho Department of Correc-
tion, for appellees Brent Reinke et al.
OPINION
PER CURIAM:
We consider Paul Ezra Rhoades’s appeal from the district
court’s denial of his emergency motion for preliminary
20436 RHOADES v. REINKE
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 substan-
tially 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 pro-
tocol 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 enti-
tled 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 emer-
gency 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 irrepa-
rable harm in the absence of preliminary relief, (3) that the
balance of equities tips in his favor, and (4) that an injunction
is in the public interest.” Beaty v. Brewer, 649 F.3d 1071,
1072 (9th Cir. 2011) (citing Winter v. Natural Res. Def. Coun-
cil, Inc., 555 U.S. 7, 20 (2008)). Rhoades claims he is entitled
to relief. We disagree and explain why we reject his argu-
ments.
We review the district court’s denial of Rhoades’s emer-
gency 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 defer-
ential.” Id. (quoting Southwest Voter Registration Educ. Proj-
ect v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc)).
“We review underlying legal issues de novo and findings of
RHOADES v. REINKE 20437
fact for clear error.” Grocery Outlet Inc. v. Albertson’s Inc.,
497 F.3d 949, 950-51 (9th Cir. 2007).
[1] 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 cho-
sen to maintain the death penalty, including Idaho. The
Supreme Court has made clear that this is 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 Dick-
ens v. Brewer, 631 F.3d 1139 (9th Cir. 2011). We consider
Baze and Dickens to be controlling absent a showing of mate-
rial difference. These cases might permit us to give prelimi-
nary 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 exe-
cution, 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
20438 RHOADES v. REINKE
lethal injection protocol violated the Eighth Amendment’s
prohibition of cruel and unusual punishment. The Court con-
cluded that “to prevail on such a claim there must be a sub-
stantial 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 accor-
dance with the Supreme Court’s decision in Baze, Arizona’s
protocol fell within the “safe harbor” of lethal injection proto-
cols 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 injection protocol. What
minor differences do exist are not applicable to the way the
protocol is being implemented in this case.1
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 proto-
col requires monitoring by microphone and video, in addition to an indi-
vidual 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 dif-
ferences 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 dif-
ference is also irrelevant here because we approved the use of pentobarbi-
tal as an alternative to sodium pentothal in Beaty, 649 F.3d at 1072.
RHOADES v. REINKE 20439
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 estab-
lishing 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, 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, Dep-
uty Chief of the Bureau of Prisons, as further evidence of the
procedures that are actually to be used for Rhoades’s execu-
tion, 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
20440 RHOADES v. REINKE
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 Gil-
more v. California, 220 F.3d 987, 1005 (9th Cir. 2000); cf.
Dickens, 631 F.3d at 1142 & n.2 (considering the Arizona
protocol as amended by a Joint Report and the addition of
provisions during the course of litigation).
[2] The district court found that Zmuda credibly testified
that the following safeguards are in place for Rhoades’s exe-
cution:
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 experi-
ence 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 Injec-
tion Team members have been receiving regular
training in the execution procedures, in the execution
unit itself, since October 20, 2011.3 Between October
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 execu-
tion.
3
In light of Zmuda’s testimony, considered credible by the district court,
we reject Rhoades’s contention that the execution facility is not suffi-
ciently complete to host required trainings.
RHOADES v. REINKE 20441
20, 2011 and November 18, 2011, the date of execu-
tion, 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 identifica-
tion of the best sites on Rhoades to 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 infor-
mation to the warden, along with the Medical
Team’s input. The warden then decides how to pro-
ceed, 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 Medi-
cine 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 proto-
col, as it will be implemented, is not only substantially similar
to the Kentucky protocol as described in Baze, but includes
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 cath-
eter 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 con-
ducts insertion of central lines in his/her professional practice.
20442 RHOADES v. REINKE
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 proto-
col will be implemented in an unconstitutional manner. Spe-
cifically, 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 execu-
tion.
[3] 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 enor-
mity 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 exe-
cution, the Execution Team would participate in 10 training
sessions, including several full rehearsals during which team
members will practice placing IV lines in live, volunteer sub-
jects, not just in mannequins as Rhoades contends. The dis-
trict court found Zmuda’s testimony about the nature and
RHOADES v. REINKE 20443
scope of the trainings to be credible and we conclude that
there was no clear error in the district court’s factual conclu-
sions. The Kentucky protocol does not require any more train-
ing 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 per-
form 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.
[4] We agree with the district court that Rhoades has not
raised issues of fact as required by Dickens sufficient to sup-
port the inference that the SOP 135 protocol will be improp-
erly implemented in his case and that as a result he will be
improperly anesthetized and exposed to severe pain.
[5] 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 estab-
lishes an Eighth Amendment violation only if the
current protocol creates a substantial risk of serious
20444 RHOADES v. REINKE
harm that the alternative protocol will reduce. Baze,
553 U.S. at 52. “[A] condemned prisoner cannot suc-
cessfully 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 proto-
cols. This argument does not change the binding and persua-
sive reasoning of the panel in Dickens because Rhoades
proffers no evidence that SOP 135 is in fact likely to 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 seri-
ous pain to Rhoades.
[6] 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.
[7] The November 15, 2011 emergency motion for a stay
of execution is denied.
AFFIRMED.