Creech v. Tewalt

84 F.4th 777

Thomas E. CREECH, Plaintiff-Appellant,andGerald Ross Pizzuto, Jr., Plaintiff, v. Josh TEWALT, Director, Idaho Department of Correction,in his official capacity; Chad Page, Chief, Division of Prisons,Idaho Department of Correction, in his official capacity;Tim Richardson, Warden of the Idaho Maximum Security Institution;Unknown Employees, Agents, or Contractors of the Idaho Department of Correction,in their official capacities, Defendants-Appellees,andBrad Little, Idaho State Governor, in his official capacity, Defendant.

No. 22-35069

United States Court of Appeals, Ninth Circuit

Argued and Submitted July 24, 2023 Seattle, Washington

Filed October 13, 2023

Appeal from the United States District Court for the District of Idaho David C. Nye, Chief District Judge, Presiding, D.C. No. 1:20-cv-00114-DCN

Sarah E. Kalman (argued), DLA Piper LLP (US), Philadelphia, Pennsylvania; Stanley J. Panikowski, III, DLA Piper LLP (US), San Diego, California; Sean A. Newlan, DLA Piper LLP (US), Phoenix, Arizona; Alice A. Gyamfi, DLA Piper LLP (US), New York, New York; Charles Peterson and Nicole Owens, Executive Directors; Jonah J. Horwitz and Christopher M. Sanchez, Assistant Federal Defenders; Federal Defender Services of Idaho, Boise, Idaho; William M. Pope, Assistant Federal Public Defender, Federal Public Defender's Office (Eastern Washington and Idaho), Spokane, Washington; for Plaintiff-Appellant.

Theodore J. Wold (argued), Solicitor General; Mark Kubinski, Deputy Assistant Attorney General; Kristina M. Schindele, Acting Assistant Attorney General; Lawrence G. Wasden, Idaho Attorney General; Idaho Attorney General's Office, Boise, Idaho; for Defendants-Appellees.

Before: Ronald M. Gould, Johnnie B. Rawlinson, and Mark J. Bennett, Circuit Judges.

OPINION

BENNETT, Circuit Judge:

Plaintiff Thomas Creech is an Idaho prisoner facing execution by lethal injection. In this action, he challenges Idaho's execution practices, including the State's alleged failure to timely disclose information about the drugs and procedures to be used during an execution. He alleges that these practices: 1) interfere with his ability to challenge the State's method of execution as cruel and unusual punishment; 2) inhibit his ability to seek clemency; 3) inflict mental anguish; 4) increase the risk of an unconstitutionally painful execution; 5) treat similarly situated prisoners unequally; 6) violate the separation of powers under the Idaho Constitution; and 7) contravene Idaho Code § 19-2716's requirement that the director of the Idaho Department of Correction (IDOC) establish procedures governing executions.

In a prior appeal, we reversed the district court's dismissal of the amended complaint for lack of jurisdiction. Pizzuto v. Tewalt (Pizzuto I), 997 F.3d 893 (9th Cir. 2021). We held that Creech's claims were ripe and that IDOC's issuance of a revised execution protocol mooted some of Creech's claims. We also noted that Creech's claims did not appear to be viable, but that Creech should be permitted to amend the complaint on remand to advance any colorable claims.

On remand, and in light of then-co-plaintiff Gerald Pizzuto's scheduled execution, the district court sua sponte dismissed the complaint for failure to state a claim under Federal Rule of Civil Procedure ("Rule") 12(b)(6). The court also held that amendment of the complaint would be futile and dismissed it without leave to amend. Creech then timely noticed this second appeal.

We affirm in part, vacate in part, and remand. We reject Creech's contention that the district court violated the rule of mandate by denying leave to amend in connection with the Rule 12(b)(6) dismissal of the complaint. Although our decision in Pizzuto I noted parenthetically that Creech should be permitted to amend the complaint, 997 F.3d at 906, we did not foreclose the district court's sua sponte dismissal of the complaint or address whether, in connection with such a dismissal, further amendment would be futile. The district court therefore was free to address those issues without violating our mandate.

We agree with the district court that amendment of several of Creech's claims would be futile. We therefore affirm the dismissal with prejudice of the First Amendment claims based on access to execution-related information (part of Claim One and Claim Two), one of the Eighth Amendment claims (Claim Three), the equal protection claim (Claim Five), the statutory right to counsel claim (Claim Six), and the separation of powers claim (Claim Seven). We also affirm the dismissal of the § 19-2716 claim (Claim Eight) but instruct that, on remand, the district court should clarify that such dismissal is without prejudice.

We vacate the dismissal of three of Creech's claims, with instructions to the district court to allow leave to amend, because we do not find it clear on de novo review that those claims could not be saved by amendment. See Curry v. Yelp Inc., 875 F.3d 1219, 1228 (9th Cir. 2017). First, is that part of Claim One that alleges his attorneys' right to view Creech's entire execution. Second is Claim Four, which alleges that the State's practices violate procedural due process by depriving Creech of a meaningful opportunity to challenge his method of execution under the Eighth Amendment. Third is Claim Nine, which asserts that IDOC's failure to provide information about Creech's execution creates "a substantial risk that [he] will be subjected to severely painful executions, in violation of the Eighth Amendment." Am. Compl. ¶ 611.

BACKGROUND

At all times relevant to this appeal, Idaho Code § 19-2716 authorized executions in Idaho to be carried out by lethal injection but delegated the details of the execution procedure to the director of IDOC. The version of the statute in effect in 2020, when this action was filed, provided:

The punishment of death shall be inflicted by continuous, intravenous administration of a lethal quantity of a substance or substances approved by the director of the Idaho department of correction until death is pronounced by a coroner or a deputy coroner. The director of the Idaho department of correction shall determine the procedures to be used in any execution.

Idaho Code § 19-2716 (2020). The current version of the statute, following amendment in 2023, provides:

(1) The punishment of death shall be inflicted by the following methods:

(a) Continuous, intravenous administration of a lethal quantity of a substance or substances approved by the director of the Idaho department of correction until death is pronounced by a coroner or a deputy coroner; or

(b) Firing squad.

. . .

(6) The director shall determine the procedures to be used in any execution.

Id. § 19-2716 (2023).

In accordance with § 19-2716, IDOC promulgates Standard Operating Procedures (SOPs) governing executions. At the time this action was filed, Idaho had last revised these procedures in 2012. The then-current version was Standard Operating Procedure Control Number 135.02.01.001, Version 3.6, commonly known as "SOP 135." Am. Compl. ¶ 48. The protocol authorized four means of lethal injection: (1) a three-drug protocol using sodium pentothal, pancuronium bromide, and potassium chloride; (2) a three-drug protocol using pentobarbital, pancuronium bromide, and potassium chloride; (3) a single-drug protocol using sodium pentothal; and (4) a single-drug protocol using pentobarbital.

In June 2019, IDOC informed attorneys with the Capital Habeas Unit of Federal Defender Services of Idaho (CHU) that there would be changes to the 2012 version of SOP 135 before any executions would take place. According to the complaint, however, IDOC "did not provide any detail on what those changes would entail or when they would be made." Id. ¶ 61.

In March 2020, Creech and Pizzuto commenced this civil action in federal district court. Defendants are IDOC Director Josh Tewalt; Division of Prisons Chief Chad Page; Idaho Maximum Security Institution Warden Tim Richardson; and unknown employees, agents, or contractors of IDOC.¹ Plaintiffs sued defendants solely in their official capacities, and the action seeks only prospective relief. The complaint sought to: (1) compel IDOC to issue a revised protocol setting forth the execution procedures that would govern their executions; (2) compel IDOC to provide detailed information about how their executions would be carried out; and (3) require IDOC to grant their CHU attorneys permission to access the execution chamber, witness their entire executions, and have access to cameras and phones during their executions. It sought the following execution-related information:

(1) the number, amount, and type of drugs to be used, (2) how the drugs were made, how the drugs were/will be obtained, their source, amounts, expiration date, how they were acquired/transported/stored/tested, when IDOC obtain will [sic] the drugs, etc.[,] (3) when a new version of SOP 135 will be issued, (4) whether witnesses will be able to observe the insertion of the IVs[,] (5) procedures for IV placement/length, (6) who will participate in the execution, what is their training/qualifications, and how will they be chosen, (7) whether there will be a consciousness check and the procedure for it, and (8) procedures for botched executions.

Id. ¶ 498.

The complaint alleged that defendants have a history of questionable sourcing of execution drugs, revising execution procedures at the last minute, and either refusing to provide important execution-related information at all or providing that information in an untimely manner, inhibiting prisoners' ability to litigate the constitutionality of execution procedures. The complaint alleged, for example, that during Idaho's most recent execution (of Richard Leavitt in 2012), IDOC announced its intention to use a single-drug protocol of pentobarbital on May 25, 2012, just eighteen days before the execution. Id. ¶¶ 189-90.

The complaint contained nine claims. In Claims One and Two, the...