Pizzuto v. Tewalt

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Citation: 997 F.3d 893
• Docket Number: No. 20-36044,20-36044
• Parties: Gerald Ross PIZZUTO, Jr.; Thomas E. Creech, Plaintiffs-Appellants, 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; Tyrell Davis, Warden Maximum Security Institution; Unknown Employees, Agents, or Contractors of the Idaho Department of Correction, in their official capacities, Defendants-Appellees, and Brad Little, Idaho State Governor, in his official capacity, Defendant.
• Decision Date: 12 May 2021

997 F.3d 893

Gerald Ross PIZZUTO, Jr.; Thomas E. Creech, Plaintiffs-Appellants,
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; Tyrell Davis, Warden Maximum Security Institution; Unknown Employees, Agents, or Contractors of the Idaho Department of Correction, in their official capacities, Defendants-Appellees,
and
Brad Little, Idaho State Governor, in his official capacity, Defendant.

No. 20-36044

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 5, 2021 Seattle, Washington
Filed May 12, 2021

BENNETT, Circuit Judge:

Plaintiffs Gerald Pizzuto and Thomas Creech, two prisoners on Idaho's death row, seek information concerning Idaho's execution procedures. They do not in this action claim that their execution will be unconstitutional; rather, they claim that the deprivation of information itself constitutes a violation of their constitutional and statutory rights under 42 U.S.C. § 1983. The district court dismissed all their claims as unripe. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand.

I.

In 1985, Pizzuto robbed and killed Berta and Delbert Herndon at a campground near the town of McCall, Idaho. State v. Pizzuto , 119 Idaho 742, 810 P.2d 680, 686–87 (1991), overruled on other grounds by State v. Card , 121 Idaho 425, 825 P.2d 1081, 1088 (1991). He was convicted of two counts of first-degree murder and sentenced to death. Id. at 687. His sentence was upheld on direct appeal in 1991. See id. at 716. Creech was serving a life sentence for two counts of first-degree murder at the Idaho State Correctional Institution when he killed fellow inmate David Dale Jensen in 1981.

997 F.3d 897

State v. Creech , 105 Idaho 362, 670 P.2d 463, 465 (1983) ; see also State v. Creech , 99 Idaho 779, 589 P.2d 114, 115 (1979) (per curiam). He pleaded guilty to first-degree murder for killing Jensen and was sentenced to death. Creech , 670 P.2d at 465–66. This court ultimately granted habeas relief and the case was remanded for resentencing. Creech v. Arave , 947 F.2d 873, 888 (9th Cir. 1991), rev'd in part by 507 U.S. 463, 113 S.Ct. 1534, 123 L.Ed.2d 188 (1993). On remand, the trial court resentenced Creech to death, and the death sentence was upheld by the Idaho Supreme Court in 1998. See State v. Creech , 132 Idaho 1, 966 P.2d 1, 6, 23 (1998).

Both Pizzuto and Creech are close to exhausting their post-conviction appeals. On February 3, 2021, the Idaho Supreme Court affirmed the denial of Pizzuto's motion to alter the judgment on his fifth petition for post-conviction relief. Pizzuto v. State , 168 Idaho 542, 484 P.3d 823, 825-26.¹ That decision will become final if Pizzuto does not file a certiorari petition to the United States Supreme Court or he files such a petition and it is resolved in Idaho's favor. Pizzuto has no pending federal post-conviction proceedings,² and this court affirmed the denial of his most recent habeas petition in Pizzuto v. Yordy , 947 F.3d 510 (9th Cir. 2019) (per curiam), cert. denied ––– U.S. ––––, 141 S. Ct. 661, 208 L.Ed.2d 270 (2020). See id. at 514. Creech filed a federal habeas petition in 1999 that was denied by the district court. Creech's appeal is scheduled for argument before this court in September 2021. At the time of this appeal, there was no outstanding death warrant for either Pizzuto or Creech.³

In Idaho, lethal injection is the sole method of execution. Idaho Code § 19-2716. The execution must take place no more than thirty days after the issuance of a death warrant. Id. § 19-2715(2). All other matters relating to execution procedures, including the drugs to be used in the execution, are delegated to the Director of the Idaho Department of Correction ("IDOC"). Id. § 19-2716. Pursuant to this authority, IDOC publishes an execution protocol called the Standard Operating Procedure ("SOP") that explains the procedures and drugs the state will use. At the time Pizzuto and Creech filed this lawsuit, the extant SOP ("SOP 135") had been last updated on January 6, 2012. Idaho's last execution took place on June 12, 2012.

In December 2018, Pizzuto and Creech's attorneys wrote to the Director seeking information related to IDOC's execution protocol. As relevant to this appeal, they sought the following:

(1) the number, amount, and type of drugs to be used, (2) how the drugs were made, how the drugs were/would be obtained, their source, amounts, expiration date, how they were/would be acquired/transported/stored/tested, when IDOC would obtain the drugs, etc., (3) whether/when a new version of SOP 135 would be issued ... (4) whether witnesses would be able to observe the

997 F.3d 898

insertion of the IVs [intravenous lines], (5) procedures for IV placement/length, (6) who would participate in the execution, what was their training/qualifications, and how would they be chosen, (7) whether there would be a consciousness check and the procedure for it, and (8) procedures for botched executions.

Plaintiffs claim this information is essential to prevent a botched execution. For example, they claim the type of drug that will be used is important because "[t]here have been significant questions raised about the efficacy of certain drugs used in executions." Pizzuto and Creech contend this information is especially important to them as both have significant health issues. Pizzuto has had multiple heart attacks and is currently on several medications that would render certain execution drugs ineffective. Creech suffers from brain damage that may cause atypical reactions to certain drugs, and he also takes various medications. Plaintiffs claim the source of a drug also matters because some execution drugs are obtained from compounding pharmacies, which are more susceptible to error than FDA-approved manufacturers. In addition, plaintiffs describe several botched executions that resulted from human error. Thus, they claim that it is critical they know the identities and credentials of the personnel tasked with preparing and injecting the execution drugs.

IDOC did not provide plaintiffs’ counsel with the answers they sought, and instead directed them to SOP 135. Unsatisfied, counsel arranged an in-person meeting with IDOC in June 2019, from which counsel gathered that SOP 135 would be revised prior to any execution. Subsequent communications between IDOC and plaintiffs’ counsel did not result in counsel obtaining the information they wanted. In late 2019, Pizzuto and Creech tried various administrative channels to obtain further information about their executions, but those attempts also proved unsuccessful.

Pizzuto and Creech then brought this § 1983 suit against various IDOC officials, alleging multiple violations of their rights. Their claims are: (1) the deprivation of execution-related information violates their First and Fourteenth Amendment rights to access government proceedings; (2) the deprivation of execution-related information violates their First Amendment right to petition the government for redress of grievances; (3) the absence of a "real" execution protocol constitutes cruel and unusual punishment in violation of the Eighth Amendment; (4) the deprivation of execution-related information violates their right to due process under the Fourteenth Amendment; (5) the absence of a "real" execution protocol (and, in the alternative, the discretion vested in the Director by SOP 135) violates the Equal Protection Clause; (6) the deprivation of execution-related information violates their statutory right to counsel under 18 U.S.C. § 3599 ; (7) the Director's authority to issue execution protocols is unconstitutional under various provisions of the Idaho Constitution; (8) the Director's refusal to issue a revised SOP violates his obligations under Idaho law; and (9) the deprivation of information creates a substantial risk of serious harm, which violates the Eighth Amendment. They seek to enjoin the executions until the purported violations are remedied.

The district court dismissed plaintiffs’ claims without prejudice, finding they were not ripe for adjudication. The court reasoned that both Pizzuto and Creech had pending post-conviction appeals, and thus "the ultimate question of whether the two men will even be executed remains an undetermined and open question." Plaintiffs timely appealed and sought expedited briefing, which we granted.

997 F.3d 899

On March 30, 2021, while plaintiffs’ appeal was pending, IDOC revised its execution protocol.⁴ The revised SOP provides IDOC with four alternative methods of execution.⁵ The first method is a three-drug protocol using sodium pentothal, pancuronium bromide, and potassium chloride. The second method is also a three-drug protocol, but it replaces sodium pentothal with pentobarbital. The other two methods are single-drug protocols, one using sodium pentothal and the other using pentobarbital. The method selected for an execution depends on the availability of chemicals, but the SOP allows for "no deviation from the procedures, protocols, and chemicals ... without prior consent from the Director."

II.

We begin with a discussion of the ripeness framework we apply. The ripeness doctrine is designed to "prevent the courts, through avoidance of premature...