Wood v. Ryan

• Citation: 759 F.3d 1076
• Decision Date: 21 July 2014
• Docket Number: No. 14–16310.,14–16310.
• Parties: Joseph Rudolph WOOD, III, Plaintiff–Appellant, v. Charles L. RYAN, Director of the Arizona Department of Corrections; Ron Credio, Warden, ASPC–Eyman; Lance R. Hetmer, Warden, ASPC–Florence; Unknown Parties, named as John Does-unknown ADC Personnel, in their official capacities as Employees, Contractors, and/or Agents of the Arizona Department of Corrections, Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

759 F.3d 1076

Joseph Rudolph WOOD, III, Plaintiff–Appellant,

v.Charles L. RYAN, Director of the Arizona Department of Corrections; Ron Credio, Warden, ASPC–Eyman; Lance R. Hetmer, Warden, ASPC–Florence; Unknown Parties, named as John Does-unknown ADC Personnel, in their official capacities as Employees, Contractors, and/or Agents of the Arizona Department of Corrections, Defendants–Appellees.

No. 14–16310.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 18, 2014.

Filed July 19, 2014.

Order Denying Rehearing En Banc July 21, 2014.

Jon M. Sands, Federal Public Defender, Dale A. Baich & Robin C. Konrad (argued), Assistant Federal Public Defenders, District of Arizona, Phoenix, AZ, on behalf of Plaintiff–Appellant.

Thomas C. Horne, Attorney General, Jeffrey A. Zick, Chief Counsel, John Pressley Todd, Special Assistant Attorney General, Jeffrey L. Sparks (argued) & Matthew Binford, Assistant Attorneys General, State of Arizona, Phoenix, AZ, for Defendants–Appellees.

Appeal from the United States District Court for the District of Arizona, Neil V. Wake, District Judge, Presiding. D.C. No. 2:14–cv–01447–NVW–JFM.

Before: THOMAS, GOULD, and BYBEE, Circuit Judges.

OPINION

THOMAS, Circuit Judge:

Joseph Wood (“Wood”) is scheduled to die by lethal injection on July 23, 2014. Wood seeks information from the Arizona Department of Corrections (“Department”) regarding the method of his execution, which the Department has not provided. Wood argues that, by withholding this information, the Department has violated his First Amendment rights. He seeks a preliminary injunction delaying his execution until he receives the information. The district court denied Wood's motion. Although we do not reach the ultimate merits of the case, we conclude that Wood has presented serious questions going to the merits of his claim, and that the balance of hardships tips sharply in his favor. We therefore reverse the district court's denial of the motion for a preliminary injunction.

I

A

Wood was convicted and sentenced to death for the 1989 murders of his estranged girlfriend, Debra Dietz, and her father, Eugene Dietz. His conviction and sentence were affirmed on direct appeal by the Arizona Supreme Court. State v. Wood, 180 Ariz. 53, 881 P.2d 1158, 1177 (1994). The United States Supreme Court denied Wood's Petition for a Writ of Certiorari. Wood v. Arizona, 515 U.S. 1147, 115 S.Ct. 2588, 132 L.Ed.2d 836 (1995). In 1996, Wood filed a state petition for post-conviction review. The state post-conviction court and the Arizona Supreme Court denied relief. In 2002, Wood filed a second post-conviction relief petition. The state post-conviction court and Arizona Supreme Court again denied relief. The federal district court denied his petition for a writ of habeas corpus. We affirmed the denial of his habeas petition. Wood v. Ryan, 693 F.3d 1104, 1122 (9th Cir.2012).

On April 22, 2014, the Arizona Attorney General filed a motion seeking a Warrant of Execution. The Arizona Supreme Court granted the motion on May 28, 2014, setting Wood's execution date for July 23, 2014.

On April 22, the same day the State filed a motion seeking a warrant of execution, its Attorney General's office sent Wood's attorney, Julie Hall, a letter informing her that if the warrant was granted, the Department would use two drugs—Midazolam and Hydromorphone—to execute Wood. The State also indicated that if the Department could procure the drug Pentobarbital, it would “provide notice of its intent to use that drug.”

On April 30, the head of Arizona's Federal Public Defender's Capital Habeas Unit, Dale Baich, sent the Department the first of four letters inquiring about the method the Department would use to execute Wood. He asked first about the two-drug protocol, inquiring about how the Department chose the amounts to be used of both drugs, the name and manufacturer of both drugs, the source of the drugs, and the credentials of those who would administer them. He requested similar information concerning the Pentobarbital protocol and also asked how long the Department would plan to look for that drug.

The Department responded on May 6, indicating that it would use the new two-drug protocol on Wood if the warrant were granted, and that it had chosen the amounts of both drugs based on declarations and sworn testimony in “the Ohio Execution Protocol litigation.” It also indicated that the drugs would be domestically obtained and FDA-approved, although it would not release other identifying information, citing Arizona's confidentiality law, Ariz.Rev.Stat. § 13–757. It noted that the qualifications of the IV team had not changed since the Department updated its protocol in 2012 to “include assurances of the” team's qualifications. Finally, the Department added that it will “continue to look for a source of pentobarbital indefinitely.”

Baich responded on May 9. He again requested the drug manufacturer information, along with lot numbers and expiration dates for the two drugs. He also asked for copies of the actual documents in the Ohio litigation upon which the Department relied in devising its new protocol. Baich asked for clarification of the Department's claims that it would use the new two-drug protocol, but also continue to search for Pentobarbital. Finally, given the recent problematic execution in Oklahoma and past criticism of the Department by the district court in Arizona, Baich asked for the qualifications of the medical professionals who would perform the execution.

Baich followed up on May 15, forecasting the current litigation and directing the Department to preserve all electronically stored information and other documentation that pertains to the questions Baich had asked. He sent a second letter on that date, reiterating the questions from his previous letters and asking for documents from the Department in a variety of areas pertaining to his questions.

The Department responded on June 6, providing certain redacted records in response to Baich's request. These records include redacted purchase orders, invoices, and order confirmations for Midazolam and Hydromorphone. Although information about the manufacturers and suppliers was redacted, the documents do display the expiration dates of the Midazolam and Hydromorphone: September and October 2015. The Department refused to answer Wood's remaining requests and also referred him again to the State's execution protocol and the Ohio Execution Protocol litigation. In a June 25, 2014 letter, the Department provided final confirmation that Wood would be executed using the two-drug protocol, consisting of Midazolam and Hydromorphone. Following this correspondence, Wood still seeks: (1) the source(s), manufacturer(s), National Drug Codes (“NDCs”), and lot numbers of the drugs the Department intends to use in his execution; (2) non-personally identifying information detailing the qualifications of the personnel the Department will use in his execution; and (3) information and documents explaining how the Department developed its current lethal-injection drug protocol.

B

On June 26, 2014, Wood and five other capital prisoners (“Wood” or “Plaintiffs”) filed a 42 U.S.C. § 1983 complaint in the District of Arizona, seeking equitable, injunctive, and declaratory relief. In the complaint, the Plaintiffs argue the Department has not provided sufficient information in response to requests by the Federal Defender and alleges three counts: that by deliberately concealing lethal injection information, the Department has violated Plaintiffs' (1) First Amendment right to petition the government for redress of grievances and (2) First Amendment right to be informed about the manner in which Arizona implements the death penalty; and (3) that Arizona's protocol, developed without complying with the Food, Drug and Cosmetics Act, violates the Supremacy Clause of Article VI of the Constitution.

On July 2, Wood filed a motion for a preliminary injunction or temporary restraining order. Wood argued the district court should grant an injunction preventing the Department from carrying out his execution until it provides him with the information he requests. In a July 10 order, the district court denied Wood's preliminary injunction motion. The court concluded that the motion—founded on Wood's second First Amendment claim—was unlikely to succeed on the merits and that Wood had failed to present “serious questions” going to the claim's merits. See Developmental Servs. Network v. Douglas, 666 F.3d 540, 544 (9th Cir.2011) (“Nevertheless, if a plaintiff fails to show that he has some chance on the merits, that ends the matter.”). Wood filed a timely notice of appeal on July 10. We have jurisdiction under 28 U.S.C. § 1292(a)(1).

II

A

Wood appeals the district court's denial of his preliminary injunction motion. We review the “denial of a preliminary injunction for abuse of discretion.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.2011).

To obtain a preliminary injunction on his First Amendment claim, Wood “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). We also recognize a variation on the Winter test—the “serious questions” version—which requires the plaintiff to demonstrate that “ ‘serious questions going to the merits were raised and the balance of hardships tips sharply in the plaintiff's favor.’ ” Towery v. Brewer, 672 F.3d 650, 657 (9th Cir.2012) (quoting Alliance for the Wild Rockies, 632 F.3d at 1135). The plaintiff must still establish the other Winter factors as well. Id. “This approach requires that the elements of the preliminary injunction test be balanced, so that a stronger showing of one...