Beardslee v. Woodford

• Decision Date: 14 January 2005
• Docket Number: No. 05-15042.,05-15042.
• Citation: 395 F.3d 1064
• Parties: Donald BEARDSLEE, Plaintiff-Appellant, v. Jeanne S. WOODFORD, Director of the California Department of Corrections; Jill L. Brown, Warden, California State Prison at San Quentin, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

395 F.3d 1064

Donald BEARDSLEE, Plaintiff-Appellant, v. Jeanne S. WOODFORD, Director of the California Department of Corrections; Jill L. Brown, Warden, California State Prison at San Quentin, Defendants-Appellees.

No. 05-15042.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 12, 2005.

Filed January 14, 2005.

As Amended on Denial of Rehearing and Rehearing En Banc January 15, 2005.

COPYRIGHT MATERIAL OMITTED

Steven S. Lubliner, Petaluma, CA, for the petitioner-appellant.

Dane R. Gillette, Senior Assistant Attorney General, Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Ronald S. Matthias, Supervising Deputy Attorney General, San Francisco, CA, for the defendant-appellees.

Alan L. Schlosser, San Francisco, CA, for amici curiae American Civil Liberties Union Foundation of Northern California and Death Penalty Focus.

Stephen F. Rhode, Los Angeles, CA, of counsel for amici curiae Death Penalty Focus.

Appeal from the United States District Court for the Northern District of California; Jeremy Fogel, District Judge, Presiding. D.C. No. CV-04-5381-JF.

Before TASHIMA, THOMAS, and PAEZ, Circuit Judges.

PER CURIAM.

Donald Beardslee, a California death row inmate whose execution is scheduled for Wednesday, January 19, 2004, at 12:01 a.m., appeals the district court's order denying his motion for a preliminary injunction in his action pursuant to 42 U.S.C. § 1983 against Jeanne S. Woodford, Director of the California Department of Corrections, and Jill L. Brown, Warden of California State Prison at San Quentin, California (collectively, "the State"). Beardslee seeks to prevent Brown from executing him in accordance with California's lethal injection protocol, arguing that such an execution would violate his Eighth Amendment right to be free from cruel and unusual punishment and, potentially, his First Amendment right to freedom of speech. Beardslee also makes an emergency motion for a stay of execution.¹ We have jurisdiction under 28 U.S.C. § 1292(a)(1), and we affirm the district court and deny the motion.

I

Beardslee was convicted by a jury in San Mateo County, California of two counts of first degree murder with special circumstances and sentenced to death. The California Supreme Court affirmed his conviction and sentence. People v. Beardslee, 53 Cal.3d 68, 279 Cal.Rptr. 276, 806 P.2d 1311 (1991). After exhausting his state court remedies, Beardslee filed a habeas corpus petition in federal district court. The district court rejected each of his claims, including his challenge to California's method of execution, and dismissed the petition. Beardslee did not seek a Certificate of Appealability ("COA") as to his claim that California's method of execution violated the Eighth Amendment's prohibition against cruel and unusual punishment.

We affirmed the district court's denial of habeas relief, Beardslee v. Woodford, 358 F.3d 560 (9th Cir.2004), and the Supreme Court denied Beardslee's petition for a writ of certiorari, Beardslee v. Brown, ___ U.S. ___, 125 S.Ct. 281, 160 L.Ed.2d 68 (2004). After denial of certiorari, but before our mandate was issued, Beardslee requested, and we granted, an expanded COA based on a decision, Sanders v. Woodford, 373 F.3d 1054 (9th Cir.2004), that had been issued during the pendency of Beardslee's petition for a writ of certiorari. After briefing and oral argument, we issued a supplemental opinion denying federal habeas relief on December 29, 2004. Beardslee v. Brown, 393 F.3d 1032, 2004 WL 3019188 (9th Cir. Dec.29, 2004). No COA was issued during the federal appellate habeas proceedings for Beardslee's claim pertaining to the method of execution.

On December 20, 2004, Beardslee filed this § 1983 suit in federal district court challenging California's lethal injection protocol. He also moved the court for a temporary restraining order and a preliminary injunction enjoining the State from executing him using the existing lethal injection procedure. On January 7, 2005, the district court denied the motion for a temporary restraining order, denied the motion for a preliminary injunction, and denied the motion for expedited discovery as moot. Beardslee appeals the denial of injunctive relief.

In order to obtain a preliminary injunction on his claim, Beardslee was required to demonstrate "(1) a strong likelihood of success on the merits, (2) the possibility of irreparable injury to the plaintiff if preliminary relief is not granted, (3) a balance of hardships favoring the plaintiff, and (4) advancement of the public interest (in certain cases)." Johnson v. Cal. State Bd. of Accountancy, 72 F.3d 1427, 1430 (9th Cir.1995) (internal quotation marks and citation omitted). Alternatively, injunctive relief could be granted if he "demonstrate[d] `either a combination of probable success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in his favor.'" Id. (citation omitted). "These two alternatives represent `extremes of a single continuum,' rather than two separate tests." Clear Channel Outdoor Inc. v. City of Los Angeles, 340 F.3d 810, 813 (9th Cir.2003) (citation omitted). Thus, the greater the relative hardship to the party seeking the preliminary injunction, the less probability of success must be established by the party. Id. "In cases where the public interest is involved, the district court must also examine whether the public interest favors the plaintiff." Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1400 (9th Cir.1992); see also Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir.1988).

In capital cases, the Supreme Court has instructed that "[e]quity must take into consideration the State's strong interest in proceeding with its judgment." Gomez v. U.S. Dist. Court for N. Dist. of California, 503 U.S. 653, 654, 112 S.Ct. 1652, 118 L.Ed.2d 293 (1992). In such cases, "[a] court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief." Id. Thus, before granting a stay of execution, courts "must consider not only the likelihood of success on the merits and the relative harms to the parties, but also the extent to which the inmate has delayed unnecessarily in bringing the claim." Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 2126, 158 L.Ed.2d 924 (2004).

We review the denial of a preliminary injunction for an abuse of discretion. Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725, 730 (9th Cir.1999). "Our review is limited and deferential." Southwest Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir.2003) (en banc).²

II

The State contends that Beardslee is not entitled to relief because he previously litigated this claim in his federal habeas action. It is true that Beardslee asserted in his federal habeas petition a generic challenge to California's two statutory methods of execution, lethal gas and lethal injection. However, the claims asserted in this § 1983 suit are different. In this case, Beardslee challenges California's lethal injection protocol, rather than the punishment of lethal injection per se, as asserted in his habeas petition. The State has acknowledged that a § 1983 action is a proper vehicle by which to challenge a method of execution, noting that such a challenge was entertained in Cooper v. Rimmer, 379 F.3d 1029 (9th Cir.2004) and Fierro v. Gomez, 77 F.3d 301 (9th Cir.), judgment vacated by 519 U.S. 918, 117 S.Ct. 285, 136 L.Ed.2d 204 (1996).³

Section 1983 provides the statutory authorization for most federal court suits against local governments or state and local government officials to redress violations of federal civil rights. To bring a § 1983 action, a plaintiff must allege (1) a violation of a right secured by the Constitution or federal law, and (2) that this right was violated by someone acting under color of state law. 42 U.S.C. § 1983. In the instant case, the plaintiff seeks review of the method by which the sentence will be carried out, rather than a review of the fact that he was sentenced to death. He asserts that the defendants, acting under color of state law, will violate his Eighth Amendment and First Amendment rights by their use of California's lethal injection protocol. Thus, Beardlee's claim is more properly considered as a "conditions of confinement" challenge, which is cognizable under § 1983, than as a challenge that would implicate the legality of his sentence and thus be appropriate for federal habeas review. See Badea v. Cox, 931 F.2d 573, 574 (9th Cir.1991) ("Habeas corpus proceedings are the proper mechanism for a prisoner to challenge the `legality or duration' of confinement. A civil rights action, in contrast, is the proper method of challenging `conditions of ... confinement.'") (citation omitted) (revision in original). Therefore, Beardslee is not foreclosed from asserting this challenge in a § 1983 action even though he raised a challenge to the constitutionality of the statute authorizing legal injection in his federal habeas proceeding.⁴

III

Relying in large part on our decision in Cooper, the district court held that, because Beardslee did not file this action until his execution was scheduled, he was subject to a "strong equitable presumption against the grant of a stay [of execution]" unless he could "make a showing of serious questions going to the merits that is sufficient to overcome that strong presumption." The district court, however, overreads Cooper. Cooper did not decide whether such a presumption existed; rather, the decision merely reported the finding of the district court, then reached the merits.

To be sure, as the Supreme Court has instructed in Nelson and Gomez, the district court is entitled to take delay into consideration in...