Cook v. Brewer

• Decision Date: 16 March 2011
• Docket Number: No. 11–15303.,11–15303.
• Citation: 637 F.3d 1002
• Parties: Daniel Wayne COOK, Plaintiff–Appellant,v.Janice K. BREWER; Charles L. Ryan; Ernest Trujillo; Carson McWilliams; Does 1–50, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

637 F.3d 1002

11 Cal. Daily Op. Serv. 3285

2011 Daily Journal D.A.R. 3927

Daniel Wayne COOK, Plaintiff–Appellant,

v.Janice K. BREWER; Charles L. Ryan; Ernest Trujillo; Carson McWilliams; Does 1–50, Defendants–Appellees.

No. 11–15303.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 10, 2011.Filed March 16, 2011.

Jon M. Sands, Federal Public Defender, Dale A. Baich (argued), Robin C. Konrad, Golnoosh Farzaneh, Assistant Federal Public Defenders, Phoenix, AZ, for the plaintiff-appellant.Thomas C. Horne, Attorney General, Kent E. Cattani (argued), Chief Counsel, Capital Litigation Section, Phoenix, AZ, for the defendants-appellees.Appeal from the United States District Court for the District of Arizona, Robert C. Broomfield, Senior District Judge, Presiding. D.C. No. 2:10–cv–02454–RCB.Before: DIARMUID F. O'SCANNLAIN, SUSAN P. GRABER, and CONSUELO M. CALLAHAN, Circuit Judges.

OPINION

CALLAHAN, Circuit Judge:

Plaintiff Daniel Wayne Cook (“Cook”), an Arizona prisoner 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 challenges 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 Defendants state is sodium thiopental) in his execution creates a substantial and unnecessary risk of unconstitutional pain. Second, Cook contends that the administration of this substance by medical professionals would constitute deliberate indifference to his right to be free from cruel and unusual punishment. We affirm.

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, 170 Ariz. 40, 821 P.2d 731, 738 (1991). Cook and his roommate 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 corpus, which the district court denied and we thereafter affirmed. Cook v. Schriro, 538 F.3d 1000 (9th Cir.2008), cert. denied ––– U.S. ––––, 129 S.Ct. 1033, 173 L.Ed.2d 301 (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 subsequently 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, –––U.S. ––––, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “[A] plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (internal quotation marks omitted).

“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, 78 S.Ct. 99, 2 L.Ed.2d 80 (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, 127 S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

For a capital prisoner to establish an Eighth Amendment claim for exposure to future harm of severe pain constituting 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 imminent dangers.’ ” Baze v. Rees, 553 U.S. 35, 50, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) (Roberts, C.J., plurality opinion) (quoting Helling v. McKinney, 509 U.S. 25, 33, 34–35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993)).² In Baze, the Court explained 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 Amendment.’ ” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 842, 846 & n. 9, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)).

III

Because Cook committed his crimes before November 23, 1992, he has the choice to be executed by either lethal injection 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 chemicals 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 experience significant pain and suffering from the administration 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 produced in an environment such that the drug may not be effective, 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 regulation 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 Antitrust Litig.), 470 F.3d 785, 789 (8th Cir.2006) (internal citations omitted)). Fifth, “this substance will cause Cook to suffer pain if the drug is contaminated, compromised, or substandard, 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 him” or “might not actually be sodium thiopental at all” and that “using an unapproved substance from an unknown manufacturer 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 unapproved substance from an unknown manufacturer in an execution 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 sufficiently 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, 128 S.Ct. 1520; 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)...