Case 5:04-cv-05381-JF Document 1 Filed 12/20/2004 Page 1 of 13

Steven S. Lubliner 1 Law Offices of Steven S. Lubliner
P.O. Box 750639 2 Petaluma, CA 94975
Phone: (707) 789-0516 3 Fax: (707) 789-0515

4 Attorney for Plaintiff DONALD J. BEARDSLEE

5

6 UNITED STATES DISTRICT COURT
7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9

DONALD J. BEARDSLEE, 10

) Case No. )

Plaintiff, 11

) COMPLAINT FOR EQUITABLE ) AND INJUNCTIVE RELIEF [42

v. 12

) U.S.C. § 1983] ) ________________________________

JEANNE WOODFORD, Director of the ) 13 California Department of Corrections; , ) EXECUTION IMMINENT:

JILL L. BROWN, Acting Warden, San ) EXPEDITED REVIEW 14 Quentin State Prison, San Quentin, CA; ) REQUESTED

and Does 1-50

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Defendants.

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COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

Case 5:04-cv-05381-JF Document 1 Filed 12/20/2004 Page 2 of 13

1

The plaintiff, Donald J. Beardslee, alleges as follows:

2 NATURE OF ACTION
3

4

1. This action is brought pursuant to 42 U.S.C. § 1983 for violations and

5 threatened violations of the right of plaintiff to be free from cruel and unusual

6 punishment under the Eighth and Fourteenth Amendments of the United States

7 Constitution. Plaintiff seeks temporary, preliminary, and permanent injunctive relief to

8 prevent the defendants from executing plaintiff by means of lethal injection, as that

9 method of execution currently used in California. Plaintiff contends that lethal

10 injection, as performed in California, inflicts unnecessary pain and torture. Plaintiff

11 further contends that the use of Pancuronium Bromide, a paralytic agent that acts as a

12 chemical veil over the process, disguises the pain and suffering that he will be subjected

13 to. Plaintiff additionally contends that defendants, as a result of their failure to use

14 medically approved procedures and properly trained personnel, have inflicted pain and

15 torture to several executed prisoners in the past, so that plaintiff is certain he will suffer

16 the same fate unless defendants adopt a humane and safe execution protocol. This

17 action also seeks to redress Plaintiff’s right to free speech under the First and Fourteenth

18 Amendments to the United States Constitution. Defendants’s administration of

19 Pancuronium Bromide during the execution process will paralyze Plaintiff, rendering

20 him unable to speak, move or communicate. As such, Plaintiff will be prevented from

21 commenting on a significant public controversy: the effectiveness of California’s

22 execution protocol in rendering an inmate unconscious so that he does not experience

23 the painful torture associated with the administration of a lethal dose of potassium

24 chloride.

25 JURISDICTION AND VENUE
26

27

2. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question),

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COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

Case 5:04-cv-05381-JF Document 1 Filed 12/20/2004 Page 3 of 13

1 § 1343 (civil rights violations), § 2201 (declaratory relief), § 2202 (further relief). This

2 action arises under the First, Eighth and Fourteenth Amendments to the United States

3 Constitution and under 42 U.S.C. § 1983.

4 3. Venue is proper pursuant to 28 U.S.C. § 1391(b) in that plaintiff is currently
5 incarcerated in San Quentin State Prison in San Quentin, California, located in this
6 District. All executions conducted by the State of California (“State”) occur at San
7 Quentin. The events giving rise to this complaint will occur in this District.
8

9

10 THE PARTIES
11

12

4. Plaintiff Donald J. Beardslee is a United States citizen and a resident of the

13 State. He s currently a death-sentenced prisoner under the supervision of the California

14 Department of Corrections, C-82702. He is held in San Quentin State Prison, San

15 Quentin, California, 94974.

16 5. Defendant Jeanne Woodford is the Director of the California Department of
17 Corrections.
18

19

6. Jill L. Brown is the Acting Warden of San Quentin State Prison where the

20 plaintiff is incarcerated and where his execution is scheduled to occur.

21 7. Plaintiff is ignorant of the true names of Does 1-50 but alleges that they have
22 or will participate in Plaintiff’s execution by virtue of their roles in designing,
23 implementing and/or carrying out the lethal injection process. When plaintiff discovers
24 the Doe Defendants’s true identities, he will amend his complaint accordingly.
25

26

GENERAL ALLEGATIONS

27 8. The San Mateo County Superior Court has scheduled Plaintiff’s execution
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1 for January 19, 2005. State officials have announced that they will commence with the

2 execution at 12:01 a.m.

3

9. The State intends to execute plaintiff by poisoning him with a lethal

4 combination of three chemical substances: sodium pentothal, a short acting barbiturate;

5 pancuronium bromide, which paralyzes all voluntary muscles; and potassium chloride,

6 an extremely painful chemical which activates the nerve fibers lining the prisoner’s

7 veins and interferes with the heart’s contractions, causing cardiac arrest.

8

10. San Quentin Institution Procedure No. 770, the protocol by which lethal

9 injection executions are preformed, violates constitutional and statutory provisions

10 enacted to prevent cruelty, pain and torture.

11

11. Procedure 770 was adopted without any medical research and review to

12 determine whether a prisoner would not suffer a painful death. No member of the

13 medical community was involved in its adoption. The procedure was adopted by the

14 former Warden of San Quentin, Daniel Vasquez, after observing two executions in

15 Texas, without any input from or consultation with medical personnel.

16

12. The combination of the three chemicals used in Procedure 770, in

17 conjunction with the absence of standardized procedures and qualifications of the

18 personnel involved, creates a grave and substantial risk that that the plaintiff will be

19 conscious and experience an excruciatingly painful and protracted death.

20

13. Sodium pentothal is a very short acting barbiturate that is ordinarily

21 administered only during the preliminary phase of the administration of anesthesia.

22 There is a reasonable likelihood that sodium pentothal may not provide a sedative effect

23 for the duration of the execution process. Without adequate sedation, plaintiff will

24 experience excruciating pain as a result of the administration of potassium chloride.

25

14. Pancuronium bromide, the second chemical administered in the lethal

26 injection process, paralyzes voluntary muscles including the diaphragm. It does not,

27 however, effect consciousness or the perception of pain. Pancuronium bromide,

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COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

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1 administered by itself as a “lethal dose”, would not result in a quick death, but would

2 ultimately cause someone to suffocate to death while still conscious. There is no

3 indication in California’s lethal injection protocol, however, that pancuronium bromide

4 is used to cause death. It therefore is completely unnecessary in the lethal injection

5 process and only serves to mask any pain or suffering that the plaintiff may experience.

6

15. Pancuronium bromide could not lawfully be used as the fatal agent because

7 causing death by suffocation violates the Eighth Amendment’s prohibition against cruel

8 and unusual punishments.

9

16. Procedure 770 lacks medically necessary safeguards, thus increasing the

10 risk of the plaintiff suffering unnecessary pain in the lethal injection process. There is

11 no standardized time to administrate each of the three chemicals. The protocols make

12 no mention to insure that the chemicals are properly flowing into the prisoner, nor to

13 insure that the prisoner is properly sedated prior to the administration of lethal

14 chemicals. The protocols do not establish any minimum qualifications and expertise

15 required of the personnel performing the all of the tasks of the lethal injection process.

16 There are no guidelines for these personnel to rely upon if they are required to exercise

17 their discretion during the process. The protocol has no plan in place if the plaintiff

18 requires medical assistance during the execution.

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20

COUNT I

21

VIOLATION OF RIGHT TO BE FREE FROM CRUEL

AND UNUSUAL PUNISHMENT PURSUANT TO THE EIGHTH AND

22 FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUION

23 (42 U.S.C. § 1983)
24

25

17. Plaintiff realleges and incorporates by reference the allegations contained

26 in paragraphs 1 through 16

27

18. Defendants Jill L. Brown, Jeanne Woodford and Doe Defendants are

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COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

Case 5:04-cv-05381-JF Document 1 Filed 12/20/2004 Page 6 of 13

1 acting under color of California law or causing to be administered to plaintiff chemicals

2 that will case unnecessary pain in the execution of a sentence of death, thereby

3 depriving plaintiff of his rights under the Eighth and Fourteenth Amendments to be free

4 from cruel and unusual punishment, in violation of 42 U.S.C. § 1983.

5

19. The California Department of Corrections Procedure 770, specifying its

6 lethal injection protocol, violates plaintiffs rights under the cruel and unusual

7 punishments clause of the Eighth Amendment because (a) the protocol creates the

8 unreasonable and unacceptable risk of unnecessary physical and psychological pain; (b)

9 the protocol does not comport with contemporary norms and standards of society; and

10 (c) the protocol offends the dignity of the person and society.

11

20. California’s lethal injection protocol utilizes three chemicals without any

12 indications of the proper training, experience or expertise of the personnel entrusted

13 with the lethal injection procedure. The protocol fails to state any timing for the

14 administration of the three separate chemicals, which is an essential requirement for the

15 proper administration of these chemicals.

16

21. California’s lethal injection protocol’s use of pancuronium bromide

17 increases the risk that the use of this chemical, in combination with the initial dose of

18 sodium pentothal, will result in plaintiff being paralyzed but conscious and suffering

19 death from the burning veins and resultant heart failure due to the potassium chloride.

20 Moreover, the American Veterinary Medical Association (AVMA) states that a

21 combination of a barbiturate and a neuromuscular blocking agent such as pancuronium

22 bromide is not an acceptable euthanasia method. This is because of the likelihood that,

23 when administered in a sufficiently large dose to cause death, pancuronium bromide

24 does not cause a quick death. Because California’s protocol calls for the use of

25 Potassium Chloride in a lethal dose, the use of pancuronium bromide serves no purpose,

26 but increases the risk that a prisoner will be paralyzed but conscious while he is being

27 injected with an extremely painful drug. Without the use of pancuronium bromide, a

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1 prisoner will be able to indicate that he is conscious prior to the administration of

2 potassium chloride. This is particularly crucial because California’s protocol indicates

3 that the prisoner will be alone in a room when he is executed, making it impossible to

4 determine whether a prisoner is conscious once he is paralyzed by the pancuronium

5 bromide.

6

22. Sodium pentothal, which is an extremely fast acting but not long lasting

7 barbiturate, is used as the anesthesia agent in California’s lethal injection procedure. In

8 veterinary medicine, sodium Phenobarbital, a somewhat lower acting but longer lasting

9 barbiturate, is used in euthanasia. The AVMA states that, when potassium chloride is

10 used for euthanasia, it is extremely important that personnel performing euthanasia must

11 be trained and knowledgeable in anaesthetic techniques and are competent in assessing

12 anesthetic depth appropriate for potassium chloride, which requires animals to be in a

13 surgical plane of anesthesia characterized by loss of consciousness, loss of reflex muscle

14 response, and loss of response to noxious stimuli. California law requires that non-

15 veterinary personnel performing animal euthanasia undergo strict training by a

16 veterinarian and/or a registered veterinary technician who specializes in anesthesia.

17 California’s lethal injection protocol does not require that the personnel using the same

18 drug in executing prisoners undergo any training.

19

23. The California lethal injection procedure fails to address the individual

20 prisoners medical condition and history. Several regularly prescribed drugs at San

21 Quentin interfere with the ability of sodium pentothal to act as an anesthetic. Moreover,

22 the lethal injection protocol allows for prisoners to take Valium shortly before the

23 execution, which can also interfere with the sodium pentothal.

24

24. There is no description of any training, credentials, certifications,

25 experience, or proficiency of any personnel involved in the administration of the lethal

26 injection procedure, which is a complex medical event that requires a great deal of

27 expertise. For example, there is no mention of anyone with sufficient expertise to

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COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

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1 properly insert an intravenous line, determine if there is a blockage in the intravenous

2 line, or evaluate whether a prisoner is properly sedated, thus increasing the risk that a

3 prisoner would not get the needed amount of anesthetic prior to being paralyzed by the

4 pancuronium bromide and burned by the potassium chloride. Toxicology reports from

5 executed prisoners from other states demonstrate that many of them were likely

6 conscious during the administration of lethal drugs, which likely occurs because of

7 either improper insertion of the intravenous line or an unrecognized blockage in the line.

8

25.Inducing unconsciousness by correctly administering sodium thiopental is

9 indispensable to preventing the wanton infliction of pain when the potassium chloride is

10 administered. The protocol does not require the preparation of backup syringes of

11 sodium thiopental. Further, the protocol mandates that the syringe containing sodium

12 thiopental be prepared “last, when it appears that it shall actually be used.” Given the

13 whirl of conflicting events surrounding the last minutes before a scheduled execution,

14 the protocol increases the risk that the sodium thiopental will not be prepared and

15 administered properly or, worse, will not be prepared at all.

16

26. The California lethal injection protocol fails to address any reasonably

17 foreseeable complications with any appropriate medical response. This includes the

18 possibility that a stay of execution could be entered after the lethal injection process has

19 begun. The protocol fails to contain any safeguards to ensure that a prisoner is not

20 wrongly executed should this happen.

21

27.Any time up until the potassium chloride is administered, the prisoner could

22 be readily resuscitated given the appropriately trained personnel and routine

23 resuscitation medication and equipment. If this were to occur after the potassium

24 chloride was administered, a resuscitation would be more challenging but still possible.

25 Resuscitation would therefore require equipment close-by, and properly credentialed

26 personnel, neither of which are present in Procedure 770.

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COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

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1

COUNT II

2

VIOLATION OF RIGHT OF FREE SPEECH PURSUANT TO THE FIRST AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUION

3

4

(42 U.S.C. § 1983)

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6

28.Plaintiff incorporates paragraphs one through twenty-seven of the complaint

7 as if fully set forth herein.

8

29.The effectiveness of California’s lethal injection protocol and protocols

9 similar to it around the country is a current public controversy.

10

30.Plaintiff has educated himself about the lethal injection controversy. Plaintiff

11 is convinced that he will be awake and conscious to experience the burning torture of a

12 lethal injection of potassium chloride.

13

31.If plaintiff’s execution goes forward, and in the event that he has not been

14 properly anaesthetized, he wants to be able to communicate that fact and the fact that he

15 is experiencing excruciating pain.

16

32.Plaintiff wants to communicate this information so that defendants, the

17 Governor, the Legislature, the public and those acting on behalf of other death row

18 inmates can evaluate whether California’s execution protocol violates the Eighth

19 Amendment prohibition against cruel and unusual punishment.

20

33.Plaintiff also wants to communicate the information that the execution

21 protocol failed in his particular case so that 1) the public can be educated about the

22 lethal injection procedure’s very real possibility for torturing the condemned, and 2)

23 defendants can be alerted to the failure so that they can identify where the system broke

24 down in order to ensure that the mistake is not repeated in future executions.

25

34. The administration of pancuronium bromide during the execution procedure

26 will paralyze Plaintiff’s voluntary muscles. Because he will be unable to speak or

27 move, he will be unable to communicate the fact that he has not been properly

28 anaesthetized and that he is experiencing excruciating pain.
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COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

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1

35.Plaintiff has a First Amendment right to communicate as described in the

2 preceding paragraphs. The administration of pancuronium bromide must be enjoined as

3 an unconstitutional infringement of that right.

4

36.The use of pancurium bromide to restrict Plaintiff’s exercise of his First

5 Amendment rights is not content neutral. The only way there would be any speech at all

6 is if the execution protocol does not work.

7

37.The use of pancuronium bromide to paralyze Plaintiff and render him unable

8 to communicate will not serve a legitimate penological purpose. The covering up of

9 Eighth Amendment violations is not a legitimate penological purpose.

10

38.Pancuronium bromide does not play a legitimate role in killing the condemned

11 person. The execution protocol provides that potassium chloride kills the condemned.

12 The administration of pancuronium bromide cannot be justified on the grounds that the

13 drug paralyzes the breathing muscles because death by asphyxiation is itself a form of

14 cruel and unusual punishment.

15

39.If pancuronium bromide is administered and Plaintiff is paralyzed during the

16 execution procedure, he will have no alternative “reasonable and effective means of

17 communication” to communicate that he was not properly anaesthetized because he will

18 be dead at the conclusion of the procedure.

19

40.Enjoining the administration of pancuronium bromide will have no impact on

20 the correctional institution. If anything, it will simplify the execution process by

21 eliminating one step in the process.

22

41.The issue of readily available alternatives to pancuronium bromide is not an

23 issue in this case because paralyzing a condemned inmate to prevent him from

24 communicating about breakdowns in the execution process is not a legitimate

25 penological goal.

26

42.The Ninth Circuit and this Court have previously held that Defendants and

27 their predecessors, in order to forestall discussion and criticism of the process, have

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COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

Case 5:04-cv-05381-JF Document 1 Filed 12/20/2004 Page 11 of 13

1 implemented restrictions on the execution process to prevent witnesses from being

2 aware of complications with the procedure.

3

EXHAUSTION ALLEGATIONS

4

43.On November 24, 2004, plaintiff filed two inmate appeals on CDC Form 602

5 alleging that California’s lethal injection procedure violated his rights under the First

6 and Eighth Amendment.

7

44.Plaintiff asked that his appeal be processed as an emergency appeal pursuant

8 to 15 Cal. Code Regs. §3084.7 on the ground that the People shortly intended to seek an

9 execution date.

10

45.On November 29, the Form 602 for the First Amendment complaint was

11 returned to him. Plaintiff was informed that his First Amendment claim would be

12 addressed in conjunction with the Form 602 appeal setting out the Eighth Amendment

13 claim.

14

46.Plaintiff was also initially informed on November 29, 2004, that while the first

15 levels of review would be bypassed and his claim would go directly to the Warden for

16 review, it would not be handled as an emergency appeal and that he could expect a

17 decision by January 10, 2005.

18

47.Defendants subsequently changed their mind and processed plaintiff’s claims

19 as emergency appeals. On December 6, 2004, defendant Warden denied both of

20 plaintiff’s appeals.

21

48.On December 8, 2004, Plaintiff submitted his First and Eighth Amendment

22 appeals to defendant Director of the Department of Corrections for Third Level review.

23 On December 12, 2004, the Director’s office denied both of Plaintiff’s appeals.

24

49.Having gone through Third Level review, Plaintiff has completed the 602

25 appeals process. Plaintiff has no other administrative remedies available to him to

26 prevent his execution from being carried out in violation of his constitutional rights.

27

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1

PRAYER FOR RELIEF

2

3

WHEREFORE, Donald Beardslee prays for:

4

1. Temporary, preliminary and permanent injunctive relief against the

5 defendants, their officers, agents, servants, employees and all persons acting in concert

6 with them, that enjoins the defendants from executing plaintiff by lethal injection using

7 Procedure 770;

8

2. In the event that Procedure 770 is not enjoined in its entirety as violating the

9 Eighth Amendment, temporary, preliminary and permanent injunctive relief against

10 defendants, their officers, agents, servants, employees and all persons acting in concert

11 with them, that enjoins the defendants from administering Pancuronium Bromide during

12 the execution process;

13

3. Reasonable attorneys’ fees pursuant to 42 U.S.C. § 1983 and the laws of

14 the United States;

15

4. Costs of suit; and

16 Any such other relief as the Court deems just and proper.

17 Dated: December 19, 2004

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20

By: /s Steven S. Lubliner Steven S. Lubliner

21

Attorney for Donald Beardslee

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COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

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1

VERIFICATION

2

I, Steven S. Lubliner, hereby declare:

3 1. I am a member of the State Bar of California and admitted to
4
5 practice before all courts of this state, as well as this Court, the U.S. Court of Appeals

6 for the Ninth Circuit and the U.S. Supreme Court. I am retained counsel for Plaintiff,

7 Donald J. Beardslee, in this matter. I have personal knowledge of the matters set forth
8
9 in this complaint, except as otherwise indicated, and could and would competently

10 testify to them if called upon to do so.

11 2. Mr. Beardslee is in custody and restrained of his liberty in a county
12
13 other than where my office is situated. Additionally, many of the facts alleged herein

14 are more within my knowledge. Therefore, I make this verification on his behalf.
15 3. I have reviewed the foregoing complaint. I verify that all of the
16
17 alleged facts that are not otherwise supported by citations to the records or declarations

18 to the attached petitions are true and correct to my own knowledge, except as to any 19
matters stated in it on information and belief, which I am informed and believe are true 20 21 and correct.

22

I declare under penalty of perjury under the laws of the State of California

23 and the United States of America that the foregoing is true and correct.
24

25

Executed on December 19, 2004 in Petaluma, California.

26

s/Steven S. Lubliner

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COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

 
 Beardslee v. Woodford, Not Reported in F.Supp.2d (2005)

2005 WL 40073 Only the Westlaw citation is currently available.
United States District Court, N.D. California.
Donald J. BEARDSLEE, Plaintiff, v.
Jeanne S. WOODFORD, Director of the California Department of Corrections; Jill L. Brown, Warden of San Quentin State Prison; and Does 1-50, Defendants.
No. C 04-5381 JF. | Jan. 7, 2005.
Attorneys and Law Firms
Steven Samuel Lubliner, Law Offices of Steven S. Lubliner, Petaluma, CA, for Plaintiff.
Bill Lockyer, Robert R. Anderson, Gerald A. Engler, Ronald S. Matthias, and Dane R. Gillette, State Attorney General’s Office, San Francisco, CA, for Defendants.
Opinion

FOGEL, J.

DEATH-PENALTY CASE

ORDER DENYING MOTIONS FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION AND FOR EXPEDITED DISCOVERY
>Docket Nos. 2 & 8]
*1 Plaintiff Donald J. Beardslee moves for a temporary restraining order or preliminary injunction and for expedited discovery. Defendants Jeanne S. Woodford, Director of the California Department of Corrections, and Jill L. Brown, Warden of San Quentin State Prison, oppose the motions. The Court has read the moving and responding papers and has considered the oral arguments of counsel presented on Thursday, January 6, 2005. For the reasons set forth below, the motions will be denied.

I. BACKGROUND
Plaintiff has been sentenced to death. He is scheduled to be executed by lethal injection just after midnight on Wednesday, January 19, 2005. On Monday, December 20, 2004, Plaintiff filed the present action pursuant to 42 U.S.C. § 1983 (2004). Plaintiff seeks injunctive relief to prevent Defendants from executing him pursuant to California’s lethal injection protocol, contending that executions performed pursuant to that protocol violate the Eighth Amendment’s prohibition of cruel and unusual punishment as well as his First Amendment right to freedom of speech.

1

Beardslee v. Woodford, Not Reported in F.Supp.2d (2005)
II. LEGAL STANDARD
As a general rule, a party seeking a preliminary injunction must show either (1) a likelihood of success on the merits and the possibility of irreparable injury or (2) the existence of serious questions going to the merits and the balance of hardships tipping in the movant’s favor. See Roe v. Anderson, 134 F.3d 1400, 1401-02 (9th Cir.1998); Apple Computer, Inc. v. Formula Int’l, Inc., 725 F.2d 521, 523 (9th Cir.1984). These formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases. See Roe, 134 F.3d at 1402.
In the death penalty context, before granting a stay [of execution], a district court must consider not only the likelihood of success on the merits and the relative harm to the parties, but also the extent to which the inmate has delayed unnecessarily in bringing the claim. Given the State’s significant interest in enforcing its criminal judgments, there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.
Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 2126, 158 L.Ed.2d 924 (2004) (citations omitted).
III. DISCUSSION
Less than one year ago, another resident of California’s death row, Kevin Cooper, faced imminent execution. Cooper filed an action in this Court in which he challenged the same lethal injection protocol that is at issue in the present case. This Court declined to stay the execution. The Court found that Cooper had delayed unduly in asserting his claims and that he had done no more than raise the possibility that he might suffer unnecessary pain if errors were made in the course of his execution. Cooper v. Rimmer, No. C 04 436 JF, 2004 WL 231325 (N.D.Cal. Feb.6, 2004) (Fogel, J.). The United States Court of Appeals for the Ninth Circuit affirmed for the same reasons. Cooper, 379 F.3d 1029 (2004).1
*2 Now binding precedent, the Ninth Circuit’s opinion in Cooper necessarily is the point of departure for this Court’s analysis of Plaintiff’s claims. Accordingly, the Court considers whether and to what extent Plaintiff’s case is distinguishable from Cooper.
A. Undue Delay
While Cooper filed his action a mere eight days before he was due to be executed, Plaintiff filed the present action thirty days before his scheduled execution date. In addition, unlike Cooper, Plaintiff exhausted his administrative remedies before filing suit. The Court recognizes that the timing of Plaintiff’s filing permits a somewhat more orderly judicial process than was possible in Cooper . Nonetheless, Plaintiff’s commencement of this action so close to his execution date presents the same basic problem presented in Cooper, which is that litigation through trial is impossible unless the Court agrees to stay the pending execution. The record reflects that with one exception noted below virtually all of the evidence that Plaintiff proffers here became available while a stay of execution was in place so that Plaintiff could pursue his federal habeas corpus petition, long before December 20, 2004. As noted above, “there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.” Nelson, 124 S.Ct. at 2126. Like Cooper, Plaintiff waited until the State scheduled his execution date before filing suit. Thus, although Plaintiff has been somewhat more diligent than Cooper, he still must make a showing of serious questions going to the merits that is sufficient to overcome that strong presumption.2
B. Merits
As a general matter, Plaintiff’s arguments and evidence are substantially the same as Cooper’s. The differences are discussed below.3
2

Beardslee v. Woodford, Not Reported in F.Supp.2d (2005)
Sodium pentothal is an anesthetic barbiturate sedative that also is known as thiopental sodium. It is the first drug of three that are administered under California’s lethal injection protocol. Sodium pentothal is used to render the condemned inmate unconscious prior to the administration of pancuronium bromide (also known as Pavulon), a paralytic neuromuscular blocking agent, and potassium chloride, which induces cardiac arrest. The protocol calls for the administration of five grams of sodium pentothal, which the parties agree is a lethal dose if administered properly. Like Cooper, Plaintiff argues that it is possible that the sodium pentothal may not be administered properly, in which event he will experience excruciating pain as the other two drugs are administered.
In Cooper, the Ninth Circuit noted that Dr. Mark Dershwitz, a board-certified anesthesiologist on the faculty of the University of Massachusetts, had provided evidence to this Court that “over 99.999999999999% of the population would be unconscious within sixty seconds from the start of administration of this dosage of thiopental sodium” and that “this dose will cause virtually all persons to stop breathing within a minute of drug administration. Therefore ... virtually every person given five grams of thiopental sodium will have stopped breathing prior to” the administration of pancuronium bromide. 379 F.3d at 1032. In the present action, Plaintiff’s expert, Dr. Mark Heath, expresses concern that the levels of sodium pentothal found in post-mortem blood toxicology reports of executed inmates obtained since the Cooper decision indicate that in some cases the sodium pentothal may have worn off prior to the administration of pancuronium bromide. However, these reports as such are insufficient to demonstrate any reasonable possibility that Plaintiff will be conscious at any point after he is injected with sodium pentothal. Reid v. Johnson, 333 F.Supp.2d 543, 546-48 (E.D.Va.) (explaining lack of probative value of same reports even where only two grams of sodium pentothal is administered), stay of execution denied, 125 S.Ct. 25 (2004).4
*3 Like Cooper, Plaintiff’s challenge assumes that there is a risk that errors will be made in the course of his execution. However, the Ninth Circuit has held that “[t]he risk of accident cannot and need not be eliminated from the execution process in order to survive constitutional review.” Campbell v. Wood, 18 F.3d 662, 667 (9th Cir.1994).
Unlike Cooper, Plaintiff also asserts a First Amendment violation, arguing that the use of pancuronium bromide during the execution will make it impossible for him to cry out if he is not unconscious and therefore experiences pain and suffering as a result of the injection of pancuronium bromide and potassium chloride. Plaintiff makes the novel argument that the existence of any possibility of an error that would result in his being conscious yet unable to communicate under such circumstances is sufficient to establish a First Amendment violation.
As noted above, even with protocols under which only two grams of sodium pentothal-as opposed to the five grams used in California-are to be administered, the likelihood of such an error occurring “is so remote as to be nonexistent.” Reid, 333 F.Supp.2d at 551. Moreover, Plaintiff’s First Amendment claim cannot be so easily separated from his Eighth Amendment claims. While Plaintiff plainly has a constitutional right to an execution that does not result in “unnecessary and wanton infliction of pain,” Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (internal quotation marks and citations omitted), there is no authority for the proposition that he has a constitutional right to an execution free from any possibility of error. Put differently, in the context of an execution, a right to speak in essence is a right to claim that one’s Eighth Amendment rights are being violated, and the risk of an accident is insufficient to constitute an Eighth Amendment violation. Campbell, 18 F.3d at 667.5
Thus, despite his additional legal theory and recently-obtained evidence, Plaintiff, like Cooper, has done no more than raise a concern that errors may be made during his execution that could expose him to a risk of unnecessary pain. Based upon the present record, a finding that there is a reasonable possibility that such errors will occur would not be supported by the evidence. Plaintiff’s action thus is materially indistinguishable from Cooper. Like Cooper, Plaintiff has failed to demonstrate serious questions going to the merits; it follows that he has not overcome the “strong equitable presumption against the grant of a stay,” Nelson, 124 S.Ct. at 2126, and is not entitled to injunctive relief.
IV. DISPOSITION
As this Court noted in Cooper, 2004 WL 231325, at *4, any case involving the death penalty inevitably raises serious moral, ethical, and legal questions about which people of good will continue to disagree. The present case, however, concerns the discrete question of whether Plaintiff has met the legal standard for enjoining California’s lethal injection protocol for executions. Because the Court finds and concludes that Plaintiff has not met this standard and has delayed unduly in asserting his claims, and good cause therefor appearing, IT IS HEREBY ORDERED:
3

Beardslee v. Woodford, Not Reported in F.Supp.2d (2005) *4 (1) Plaintiff’s motion for a temporary restraining order or preliminary injunction is DENIED; (2) Plaintiff’s motion for expedited discovery is DENIED as moot.

Footnotes

1

In a separate habeas corpus proceeding originally brought in the Southern District of California, an en banc panel of the Ninth

Circuit granted a stay of execution to permit Cooper to pursue his claim that he is innocent of the crimes of which he was convicted

and for which he was sentenced to death. Cooper v. Woodford, 358 F.3d 1117 (9th Cir.2004) (en banc). This Court subsequently

dismissed Cooper’s challenge to the lethal injection protocol without prejudice in light of Cooper’s failure to exhaust his

administrative remedies. Cooper v. Woodford, No. C 04 436 JF (N.D.Cal. Oct. 12, 2004).

2

Plaintiff filed his federal habeas petition in 1992, when California first adopted lethal injection as a method of execution. His

petition contained a claim challenging lethal injection as cruel and unusual punishment. Defendants argue that the Court should not

permit Plaintiff to relitigate this issue after having been unsuccessful in pursuing it on habeas. However, Plaintiff was apparently

unable to develop the claim adequately because much of the evidence he proffers was unavailable when his claims were brought

before the district court. Additionally, by the present action Plaintiff is challenging lethal injection as applied under the protocol

adopted by the California Department of Corrections, while his habeas claim addressed the facial constitutionality of the State’s

lethal injection statute. His current claims thus are not identical to those asserted in his habeas petition. See Reid v. Johnson, 105

Fed. Appx. 500, 503 (4th Cir.2004).

3

There is one difference between Cooper and the present case that is immaterial for purposes of resolving the issue before the Court

but nonetheless should be noted. In Cooper, the Ninth Circuit cited the statutes authorizing lethal injection in thirty-seven states.

379 F.3d at 1033 n. 3. Since Cooper was decided, the statutes generally authorizing the death penalty in New York and Kansas

have been held unconstitutional for procedural reasons by those states’ highest courts. People v. LaValle, 3 N.Y.3d 88, 783

N.Y.S.2d 485, 817 N.E.2d 341 (N.Y.2004); State v. Marsh, No. 81,135, 2004 WL 2921994 (Kan. Dec.17, 2004).

4

Notably, “[P]laintiff’s expert, Dr. Health, has conceded [in Reid ] that with respect to the pharmacokinetics and pharmacodynamics

of sodium thiopental, he defers to Dr. Dershwitz’s expertise.” 333 F.Supp.2d at 547 n. 7.

5

To the extent that Plaintiff’s First Amendment claim also involves the right of the public to witness the actual conditions and

circumstances of his execution, including any pain and suffering that he might endure, that claim is substantially indistinguishable

from arguments made by Cooper. 2004 WL 231325, at *2.

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APPEAL, CAPITAL, CLOSED, E-Filing, ProSe, RELATE
U.S. District Court California Northern District (San Jose) CIVIL DOCKET FOR CASE #: 5:04-cv-05381-JF

Beardslee v. Woodford et al Assigned to: Hon. Jeremy Fogel Cause: 28:2254 Ptn for Writ of H/C - Stay of Execution

Date Filed: 12/20/2004 Date Terminated: 02/02/2005 Jury Demand: None Nature of Suit: 535 Death Penalty - Habeas Corpus Jurisdiction: Federal Question

Petitioner Donald J. Beardslee

represented by Steven Samuel Lubliner Law Offices of Steven S. Lubliner P.O. Box 750639 Petaluma, CA 94975 707-789-0516 Fax: 707-789-0515 Email: sslubliner@comcast.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Respondent Jeanne Woodford Director of the California Department of Corrections
Respondent Jill L. Brown Acting Warden, San Quentin State Prison, San Quentin, CA
Miscellaneous Habeas Corpus Resource Center

represented by Dane R. Gillette State Attorney General's Office 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102-7004 415/703-5866 Fax: 415/703-5877 Email: dane.gillette@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
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represented by California Appellate Project Federal Court Docketing 101 Second Street Suite 600 San Francisco, CA 94105 415-495-5616 Email: lfox@capsf.org PRO SE

Date Filed 12/20/2004 12/20/2004 12/20/2004 12/20/2004
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Docket Text

1 COMPLAINT (Summons Issued); against Jeanne Woodford, Jill L. Brown ( Filing fee $ 150, receipt number 3367267.). Filed byDonald J. Beardslee. (ys, COURT STAFF) (Filed on 12/20/2004) Additional attachment(s) added on 1/6/2005 (gm, COURT STAFF). (Entered: 12/21/2004)
2 MOTION for Expedited Discovery, MOTION to Compel Production of Documents filed by Petitioner Donald J. Beardslee. (db, COURT STAFF) (Filed on 12/20/2004) Additional attachment(s) added on 1/6/2005 (gm, COURT STAFF). (Entered: 12/21/2004)
CASE DESIGNATED for Electronic Filing. (db, COURT STAFF) (Filed on 12/20/2004) (Entered: 12/21/2004)
3 Declaration of Steven S. Lubliner in Support of 2 MOTION for Expedited Discovery MOTION to Compel Production of Documents filed by PetitionerDonald J. Beardslee. (Related document(s)2) (db, COURT STAFF) (Filed on 12/20/2004) Additional attachment(s) added on 1/6/2005 (gm, COURT STAFF). (Entered: 12/21/2004)
4 Administrative Application to file oversized motion for temporary restraining order: Preliminary injunction and order to show cause by petitioner Donald J. Beardslee. (db, COURT STAFF) (Filed on 12/20/2004) (Entered: 12/21/2004)
5 EXHIBITs in support of plaintiff's motion for temporary restraining roder, preliminary injunction and order to show cause: Volume 1 by petitioner Donald J. Beardslee.. (db, COURT STAFF) (Filed on 12/20/2004) Additional attachment(s) added on 1/6/2005 (gm, COURT STAFF). Additional attachment(s) added on 1/6/2005 (gm, COURT STAFF). (Entered: 12/21/2004)
6 EXHIBITS in support of plaintiff's motion for temporary restraining order, preliminary injunction and order to show cause: Volume 2 by Plaintiff Donald J. Beardslee.. (db, COURT STAFF) (Filed on 12/20/2004) Additional attachment(s) added on 1/6/2005 (gm, COURT STAFF). Additional attachment(s) added on

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1/6/2005 (gm, COURT STAFF). (Entered: 12/21/2004)
Received Plaintiff's Motion for Temporary Restraining Order: Preliminary Injunction, and order to Show Cause: Memo of points and Authorities in support thereof, by Plaintiff Donald J. Beardslee. (db, COURT STAFF) (Filed on 12/20/2004) (Entered: 12/21/2004)
Proposed Order re 8 MOTION for Preliminary Injunction MOTION for Order to Show Cause MOTION for Temporary Restraining Order by plaintiff Donald J. Beardslee. (db, COURT STAFF) (Filed on 12/20/2004) (Entered: 12/21/2004)
Proposed Order re 2 MOTION for Expedited Discovery MOTION to Compel Production of Documents by plaintiff Donald J. Beardslee. (db, COURT STAFF) (Filed on 12/20/2004) (Entered: 12/21/2004)
9 ORDER RELATING CASE to C04-436 JF. Signed by Judge Susan Illston on 12/20/04. Case remains with Judge Fogel(db, COURT STAFF) (Filed on 12/20/2004) (Entered: 12/21/2004)
7 ORDER granting plaintiff's administrative application to file oversized motion for temporary restraining order: Preliminary Injunction: and Order to Show Cause re (Received Document) filed by Plaintiff Donald J. Beardslee, (db, COURT STAFF) (Filed on 12/21/2004) (Entered: 12/21/2004)
8 MOTION for Preliminary Injunction, MOTION for Order to Show Cause, MOTION for Temporary Restraining Order. Memo of points and authorities in support thereof, filed plaintiff by Donald J. Beardslee. (db, COURT STAFF) (Filed on 12/21/2004) Additional attachment(s) added on 1/6/2005 (gm, COURT STAFF). (Entered: 12/21/2004)
10 ORDER scheduling briefing and hearing; setting hearing on 1/6/05 at 1:30 p.m.(Although petitioner is not registered for e.filing, this order was e.mailed directly to him by the death penalty clerk.). Signed by Judge Illston on 12/21/04. (ts, COURT STAFF) (Filed on 12/21/2004) (Entered: 12/21/2004)
11 Scheduling ORDER (corrected). Signed by Judge Illston on 12/21/04. (ts, COURT STAFF) (Filed on 12/21/2004) (Entered: 12/21/2004)
12 scheduling ORDER; setting preliminary injuction hearing on 1/6/05 @ 10:30 a.m.. Signed by Judge Illston on 12/22/04. (ts, COURT STAFF) (Filed on 12/23/2004) (Entered: 12/23/2004)
13 Memorandum in Opposition DEFENDANTS' OPPOSITION TO MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION filed byJeanne Woodford. (Gillette, Dane) (Filed on 12/28/2004) (Entered: 12/28/2004)
14 EXHIBITS IN SUPPORT OF DEFENDANTS' OPPOSITION TO MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION filed byJeanne Woodford. (Gillette, Dane) (Filed on 12/28/2004) (Entered: 12/28/2004)
15 Reply to Opposition re 8 MOTION for Preliminary Injunction MOTION for Order to Show Cause MOTION for Temporary Restraining Order filed byDonald J. Beardslee. (Lubliner, Steven) (Filed on 12/30/2004) (Entered: 12/30/2004)

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16 CERTIFICATE OF SERVICE by Donald J. Beardslee re 1 Complaint (defendant Brown) (Lubliner, Steven) (Filed on 1/1/2005) (Entered: 01/01/2005)
17 CERTIFICATE OF SERVICE by Donald J. Beardslee re 1 Complaint (defendant Woodford) (Lubliner, Steven) (Filed on 1/1/2005) (Entered: 01/01/2005)
18 NOTICE of Appearance by Dane R. Gillette Notice Of Appearance As Counsel (Gillette, Dane) (Filed on 1/3/2005) (Entered: 01/03/2005)
19 EXHIBITS Supplemental Exhibit In Support Of Defendants' Opposition To Motion For Temporary Restraining Order And Preliminary Injunction filed byJeanne Woodford, Jill L. Brown. (Attachments: # 1 Exhibit 7)(Gillette, Dane) (Filed on 1/3/2005) (Entered: 01/03/2005)
20 Minute Entry: Application for Temporary Restraining Order/or Preliminary Injunction hearing held on 1/6/2005 before Judge Jeremy Fogel (Date Filed: 1/6/2005). Application for Temporary Restraining Order/or Preliminary Injunction is taken under submission. (Court Reporter Peter Torreano.) (dlm, COURT STAFF) (Date Filed: 1/6/2005) (Entered: 01/06/2005)
21 TRANSCRIPT of Proceedings held on 1/6/2005 before Judge Jeremy Fogel. Court Reporter: Peter Torreano.. (gm, COURT STAFF) (Filed on 1/6/2005) (Entered: 01/07/2005)
23 ORDER DENYING MOTIONS FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION AND FOR EXPEDITED DISCOVERY. Signed by Judge Jeremy Fogel on 1/7/05. (jfsec, COURT STAFF) (Filed on 1/7/2005) (Entered: 01/07/2005)
24 NOTICE OF APPEAL as to 23 Order by Donald J. Beardslee. Appeal Record due by 2/9/2005. (gm, COURT STAFF) (Filed on 1/10/2005) (Entered: 01/10/2005)
25 MOTION for Leave to Appeal in forma pauperis filed by Donald J. Beardslee. (gm, COURT STAFF) (Filed on 1/10/2005) (Entered: 01/10/2005)
26 Declaration of Steven S. Lubliner in Support of [25] MOTION for Leave to Appeal in forma pauperis filed byDonald J. Beardslee. (Related document(s)[25]) (gm, COURT STAFF) (Filed on 1/10/2005) (Entered: 01/10/2005)
27 CERTIFICATE OF SERVICE by Donald J. Beardslee re [24] Notice of Appeal,, [25] MOTION for Leave to Appeal in forma pauperis, [26] Declaration in Support (gm, COURT STAFF) (Filed on 1/10/2005) (Entered: 01/10/2005)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re [24] Notice of Appeal, (gm, COURT STAFF) (Filed on 1/10/2005) (Entered: 01/10/2005)
28 ORDER by Judge Jeremy Fogel granting [25] Motion for Leave to Appeal in forma pauperis (gm, COURT STAFF) (Filed on 1/13/2005) (Entered: 01/19/2005)
USCA Case Number for [24] Notice of Appeal, filed by Donald J. Beardslee,. (gm, COURT STAFF) (Filed on 1/18/2005) (Entered: 01/19/2005)

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 395 F.3d 1064 (2005)
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 January 15, 2005.
1065*1065 1066*1066 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.
Before TASHIMA, THOMAS, and PAEZ, Circuit Judges.
As Amended on Denial of Rehearing and Rehearing En Banc January 15, 2005.
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 1067*1067 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).
1068*1068 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, 1069*1069 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 exercising its equitable powers. However, this consideration is based on the strong interest against the plaintiff engaging in manipulation of the system. See Gomez, 503 U.S. at 654, 112 S.Ct. 1652 ("Equity must take into consideration the State's strong interest in proceeding with its judgment and [the petitioner's] obvious attempt at manipulation.").
In Cooper, the district court made a similar finding based on the facts and circumstances of that case. Here, however, the district court appeared to apply the presumption solely on the basis that Beardslee had not filed the case until the California Supreme Court lifted its stay of execution. Once an execution was imminent, Beardslee acted promptly. Beardslee correctly points out that the precise execution protocol is subject to alteration until the time of execution. Moreover, by regulation the California Department of Corrections does not permit challenges to "anticipated action[s]." 15 Cal.Code Regs. § 3084.3(c)(3).[5] A close examination of the record indicates that, unlike the situation in Cooper or Gomez, Beardslee pursued his claims aggressively as soon as he viewed them as ripe.[6]
1070*1070 In short, the district court erred in applying a general rule that a claim was dilatory if first filed at the time when the possibility of execution became imminent. Rather, the district court should have conducted a fact-specific inquiry to ascertain whether the claims could have been brought earlier, and whether the petitioner had good cause for delay.
IV
Despite the district court's improper application of a "strong presumption," we cannot say, given our deferential standard of review, that the district court abused its discretion in denying the motion for a preliminary injunction and stay of execution based on Beardslee's Eighth and First Amendment claims.
A
The Eighth Amendment prohibits punishments that are "incompatible with `the evolving standards of decency that mark the progress of a maturing society.'" Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality opinion)). In the context of executions, the Eighth Amendment prohibits punishments that"involve the unnecessary and wanton infliction of pain," Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), "involve torture or a lingering death," In re Kemmler, 136 U.S. 436, 447, 10 S.Ct.

930, 34 L.Ed. 519 (1890), or do not accord with "the dignity of man, which is the basic concept underlying the Eighth Amendment," Gregg, 428 U.S. at 173, 96 S.Ct. 2909 (internal quotation marks and citation omitted). Thus, we held that execution by hanging under the State of Washington's protocols did not constitute cruel and unusual punishment based on the district court's findings that the "mechanisms involved in bringing about unconsciousness and death in judicial hanging occur extremely rapidly, that unconsciousness was likely to be immediate or within a matter of seconds, and that death would follow rapidly thereafter." Campbell v. Wood, 18 F.3d 662, 687 (9th Cir.1994) (en banc). In contrast, although the opinion was later vacated based on the petitioner's lack of standing, we held in Fierro v. Gomez that California's lethal gas execution protocol violated the Eighth Amendment. 77 F.3d at 308. The basis for our holding was the district court's findings that inmates were likely to remain conscious for up to a minute after the execution procedure commenced and that there was a substantial likelihood that some consciousness would persist for several minutes during which "inmates suffer intense, visceral pain, primarily as a result of lack of oxygen to the cells." Id.
In examining the "evolving standards of decency" under the Eighth Amendment, we employ an "assessment of contemporary values concerning the infliction of a challenged sanction." Gregg, 428 U.S. at 173, 96 S.Ct. 2909. That determination "should be informed by objective factors to the maximum possible extent." Coker v. 1071*1071 Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (plurality opinion). Among the "clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country's legislatures." Penry v. Lynaugh, 492 U.S. 302, 331, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). In considering objections to a particular execution method, our "methodology review focuses more heavily on objective evidence of the pain involved in the challenged method." Campbell, 18 F.3d at 682. In the end, "the objective evidence, though of great importance,[does] not `wholly determine' the controversy, `for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.'" Atkins v. Virginia, 536 U.S. 304, 312, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (quoting Coker, 433 U.S. at 597, 97 S.Ct. 2861).
In this case, Beardslee challenges San Quentin Institution Procedure 770, the current protocol by which lethal injection executions are performed at San Quentin. Under Procedure 770, three chemicals are used to carry out the execution. Five grams of sodium pentothal (also known as sodium thiopental), a barbiturate sedative, are first administered to the inmate to induce unconsciousness. The parties agree that this dosage of sodium pentothal would be sufficient to induce unconsciousness, and even cause death itself, if administered properly. This is followed by an injection of pancuronium bromide (also known as "Pavulon"), a curare-derived agent that paralyzes all skeletal or voluntary muscles, but which has no effect whatsoever on awareness, cognition, or sensation. This neuromuscular blocking agent causes paralysis and, in sufficient dosages, stops respiration by paralyzing the diaphragm and lungs. Finally, the inmate is injected with potassium chloride, an extraordinarily painful chemical which activates the nerve fibers lining the person's veins and which interferes with the rhythmic contractions of the heart, causing cardiac arrest.
Beardslee claims that there is a substantial risk that sodium pentothal will not be administered correctly, thereby subjecting him to excruciating pain that will be masked to observers by the paralyzing effects of pancuronium bromide. He contends that if he is

conscious during the administration of pancuronium bromide, he will experience suffocation similar to that observed in inmates executed by lethal gas. He contends that if he is conscious during the administration of potassium chloride, he will experience excruciating pain, but be unable to communicate because of the paralyzing effect of the pancuronium bromide. The State concedes that if the inmate is not properly sedated by the first drug, the inmate will experience torturous pain. However, it vigorously disputes Beardslee's claim that there is any likelihood that the first drug will be ineffective to render him unconscious for the duration of the execution procedure.
In support of his claim, Beardslee recites a number of perceived problems with previous lethal injection executions in California and toxicology reports from autopsies in other states which he contends indicates that condemned prisoners may have been conscious or partly conscious during the administration of pancuronium bromide. Beardslee also points to the American Veterinary Medical Association's ("AVMA") prohibition on the use of neuromuscular paralytic agents, such as pancuronium bromide, in animal euthanasia. He underscores the fact that nineteen states have passed laws banning, in whole or in part, the use of neuromuscular paralytic agents as a means of euthanizing animals. Beardslee additionally challenges the lack of specificity in Procedure 770, contending 1072*1072 that there are many variables that can complicate the proper administration of the drugs, such as the use of Valium as a pre-execution sedative, and the problems in finding acceptable veins for the insertion of an intravenous tube.
The State argues that twenty-seven of the thirty-seven states employing lethal injection use the same combination of chemicals as California; that no court in any state has found lethal injection or the drugs used in such executions to be constitutionally infirm;[7] and that this case is indistinguishable from Cooper. The State also underscores the concession by Beardslee's expert that, if properly administered, a five gram dose of sodium pentothal would likely be fatal. The State highlights, as it did in Cooper, its expert's declaration that all but an infinitesimally small number of people would be rendered unconscious within a minute after the proper administration of sodium pentothal. It contests the conclusions based on autopsy reports submitted by Beardslee, citing a lack of information about the specific protocol used in administering the drugs and the interval of time after death when the autopsy was performed.
In analyzing these arguments, and considering the objective factors present in this preliminary injunction record, we first examine the action by state legislatures. As we observed in Cooper,"[e]xecution by lethal injection is now used by 37 of the 38 states with the death penalty." Cooper, 379 F.3d at 1033.[8] Thus, objective evidence of contemporary values indicates that lethal injection has been deemed an acceptable means for society to implement a death sentence. However, this observation does not address the issue raised in this case because Beardslee is not raising a generic challenge to lethal injection as a means of execution. Rather, he contests the specific protocol used in California, most importantly, the use of pancuronium bromide. In analyzing objective evidence 1073*1073 of contemporary values on that issue, it is somewhat significant that at least nineteen states have enacted laws that either mandate the exclusive use of a sedative or expressly prohibit the use of a neuromuscular blocking agent in the euthanasia of animals.[9] It is also of some significance that the leading professional association of veterinarians promulgated guidelines that prohibit the use of a sedative with a muscle-paralyzing drug for purposes of

euthanasia, concluding that "[a] combination of pentobarbital with a neuromuscular blocking agent is not an acceptable euthanasia agent" for animals. 2000 Report of the American Veterinary Medical Association Panel on Euthanasia, 218 J. Am. Veterinary Med. Ass'n, 669, 681 (2001), at 680.[10] Beardslee's expert opines that the AVMA condemns this combination due to the risk that the animal might not be properly sedated by the barbiturate and therefore would be conscious of the severe pain of asphyxiation while being suffocated by the neuromuscular blocking agent. In any case, it is quite clear that the AVMA does not approve of the use of neuromuscular drugs in animal euthanasia, and this view has been adopted by many states.
In the context of this particular challenge, the more important consideration may be the examination of the objective evidence as to the pain caused by the particular method employed at San Quentin.
The procedure used in most states for lethal injections originated in Oklahoma when Senator Bill Dawson asked Dr. Stanley Deutsch, then chair of the Anesthesiology Department at Oklahoma University Medical School, to recommend a method for executing prisoners through the administration of intravenous drugs. In a responsive letter, Dr. Deutsch recommended the administration of an "ultra short acting barbiturate" to induce unconsciousness, followed by the administration of a neuromuscular blocking drug to induce paralysis and death. See Deborah W. Denno, When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal Injection and What It Says About Us, 63 Ohio St. L.J. 63, 95-97 (2002). Shortly thereafter, in 1977, Oklahoma became the first state to adopt lethal injection as an execution method, employing the protocol described in Dr. Deutsch's letter. See Rebecca Brannan, Sentence and Punishment: Change Method of Executing Individuals Convicted of Capital Crimes from Electrocution to Lethal Injection, 17 Ga. St. U.L.Rev. 116, 121 (2000). The first lethal injection execution occurred in Texas in 1982. Christina Michalos, Medical Ethics and the Execution Process in the United States of America, 1074*1074 16 Med. & L. 125, 126 (1997). Lethal injection has been an authorized method of execution in California since 1992, and the presumptive method since 1996. Cal.Penal Code § 3604, amended by 1992 Cal. Legis. Serv. 558 (West), amended by 1996 Cal. Legis. Serv. 84 (West). Humane concerns formed a large part of the motivation in adopting lethal injection as the presumptive method of execution in California. The California Assemblyman who introduced the measure in the wake of concerns over constitutionality of executing inmates by lethal gas, stated that lethal injection is "the only form of execution which from our own life's experience, we can conclude is entirely devoid of discomfort." He further asserted that "[n]o one knows for sure whether a prisoner suffers in the gas chamber.... With lethal injection, we know exactly what the person is going through because it's exactly what someone undergoing surgery experiences." Jonathan S. Abernethy, The Methodology of Death: Reexamining the Deterrence Rationale, 27 Colum. Hum. Rts. L.Rev. 379, 414 (1996).
Although the origins of the addition of potassium chloride to the combination are uncertain, it probably originated both from the advice of consulting physicians and Fred Leuchter, the creator of execution machinery. Denno, When Legislatures Delegate Death, supra, at 99. Twenty-seven states use the three-drug protocol. Id. at 117. New Jersey uses a two-drug protocol, administering sodium pentothal with potassium chloride. Id. North Carolina uses a two-drug protocol, using sodium pentothal with pancuronium bromide. Id.[11]

The key element in this procedure is the proper administration of the barbiturate. It is undisputed that "substantial pain and suffering can occur when the inmate receives an inadequate dosage of sodium pentothal and therefore retains consciousness and sensation during the injection of the second and third chemicals." Deborah W. Denno, Getting to Death: Are Executions Constitutional?, 82 Iowa L.Rev. 319, 380 (1997). Despite the critical nature of correct medical procedure, lethal injection executions are hampered by ethical restrictions on physicians, who are prohibited from participating in executions. See generally W. Noel Keyes, The Choice of Participation by Physicians in Capital Punishment, 22 Whittier L.Rev. 809 (2001). Thus, the prisons must rely on personnel who may not always be experienced in establishing an intravenous connection. Compounding this problem is the fact that some prisoners have collapsed or inaccessible veins due to drug abuse or because the veins are too deep, too flat, or below layers of fat. Denno, Getting to Death, supra at 381.
In some cases, executioners are forced to perform a "cut-down," a surgical procedure that exposes the vein. Id. at 382. In addition, sodium pentothal is a short acting barbiturate that must be administered properly to induce the desired effect and thereafter monitored carefully. Id. at 380. The sensitivity to sodium pentothal varies greatly among the population. Id. Some individuals, particularly those who have been building additional resistance by taking Valium or other anti-anxiety medication, are significantly more resistant to sodium pentothal than others. Id.
Beardslee has submitted evidence that he contends shows that a number of executed inmates in California may have 1075*1075 been conscious, or partially conscious, during the administration of chemicals that would cause significant pain for a period similar to the one involved in Fierro. 77 F.3d at 308. He points to the California execution logs of William Bonin, Keith Williams, Jaturun Siripongs, and Manuel Babbit, which contain indications that there were problems associated with the administration of the chemicals that may have resulted in the prisoners being conscious during portions of the executions. This evidence, coupled with the opinion tendered by Beardslee's expert, raises extremely troubling questions about the protocol. Nonetheless, the record before us at this stage is insufficient to support a conclusion that the district court abused its discretion in denying the preliminary injunction.
Beardslee tendered an expert opinion based on the witness accounts and execution logs. However, the value of Beardslee's expert's interpretations of the witness accounts and execution log entries was undercut by the expert's concession that his expertise regarding the "pharmacokinetics [the time course of medications in the body] and pharmacodynamics [the effect of medications on the body] of sodium thiopental" was inferior to the State's expert on those matters. See Reid v. Johnson, 333 F.Supp.2d 543, 547 n. 7 (E.D.Va.2004). According to the State's expert, over 99.XXXXXXXXXXXX% of the population would be unconscious within sixty seconds from the start of the administration of five grams of sodium pentothal — which is 12.5 times the normal surgical dosage — and would render most people unconscious for a period in excess of 13 hours. Given the comparative expertise of the experts in different fields, the district court did not abuse its discretion in crediting the State's expert's interpretation.

As the district court correctly observed, the evidence and the arguments in this case are almost identical to those made in Cooper. Beardslee's challenge to the protocol is not based on any factors peculiar to him, such as those that were at issue in Nelson involving compromised veins in the condemned inmate. See 124 S.Ct. at 2121. Furthermore, even Beardslee's expert concedes that the amount of sodium pentothal given under Procedure 770, if properly administered, would likely be sufficient to cause loss of consciousness and probable death prior to the administration of pancuronium bromide.
In addition to his challenge to the use of pancuronium bromide as part of Procedure 770, Beardslee also raises a series of questions about the ambiguity of the procedure and noting the risks attendant to the improper administration of the drugs. Obviously, there are risks involved in virtually every method of execution. However, the Supreme Court has rejected Eighth Amendment challenges based on an "unforeseeable accident," Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464, 67 S.Ct. 374, 91 L.Ed. 422 (1947), and has presumed that state officials have acted "in a careful and humane manner," id. at 462, 67 S.Ct. 374; see also Campbell, 18 F.3d at 682 ("The risk of accident cannot and need not be eliminated from the execution process in order to survive constitutional review.").
On the other hand, the State has tendered only minimal evidence in response to Beardslee's claims. Virtually the only affirmative evidence tendered by the State was its expert's declaration that all but an infinitesimally small number of people would be rendered unconscious within a minute after the proper administration of sodium pentothal. The State did not defend the protocol. Indeed, the State declined to produce significant portions of Procedure 770.[12] The State did not, even under repeated questioning at oral argument, provide a single justification for the 1076*1076 use of pancuronium bromide, which is one of the key issues. This response is, to say the least, troubling.[13]
Nonetheless, the question before us is not the ultimate resolution of the merits of this issue. That will have to await another day, based on a full record. Our "[a]ppellate review of the grant or denial of preliminary injunctive relief requires consideration of the merits of the underlying issue, but it does not decide them." Cooper, 379 F.3d at 1034 (Browning, J., concurring) (citing Roe v. Anderson, 134 F.3d 1400, 1402 (9th Cir.1998); Southwest Voter, 344 F.3d at 918). Our review at this stage is "limited and deferential." Southwest Voter, 344 F.3d at 918.
The critical question that we must ultimately answer in this case is not whether Beardslee has raised serious questions about the protocol itself, but whether, in this specific challenge, he has shown enough of a likelihood that he will be conscious during the administration of pancuronium bromide and potassium chloride to experience pain. The undisputed evidence in this limited record is that an administration of five grams of sodium pentothal will produce unconsciousness, and perhaps even death, if properly administered. Beardslee has not shown a sufficient likelihood that the administration will be improper in his case, or that there are specific risks unique to him that require modification of the protocol. His objections to the use of pancuronium bromide become irrelevant upon the proper administration of sodium pentothal.
Given the undisputed evidence that death or unconsciousness is likely to occur prior to the administration of pancuronium bromide and the lack of showing of any unique risk to

Beardslee in this limited record, we cannot say that the district court abused its discretion in applying the appropriate balancing tests in the context of this case and denying the preliminary injunction.
B
Beardslee also raises a First Amendment claim. This claim was not litigated in Cooper. Beardslee contends that the use of pancuronium bromide will prevent him from audibly and consciously expressing his pain, thereby denying him his right to free speech under the First Amendment. Framed in this manner, Beardslee's argument is tied to his claim that there is a risk that he will be conscious when the final two drugs are administered. On this limited record, he has not made that showing. Therefore, in the context at this stage of the case, the district court did not abuse its discretion in denying preliminary injunctive relief on Beardslee's independent First Amendment claim.[14]
1077*1077 V
For these reasons, we conclude that the district court did not abuse its discretion in denying the preliminary injunction, given the limited record and the context of the case. We express no opinion on the ultimate merits of the claims.
The district court's order denying injunctive relief is AFFIRMED. The motion for a stay of execution is DENIED.
[1] Because the district court denied preliminary injunctive relief, we construe this motion as one for "an order ... granting an injunction while an appeal is pending." Fed. R.App. P. 8(a)(1)(C); see Fed.R.Civ.P. 62(c).
[2] Although we realize that, in this case, the denial of a preliminary injunction is tantamount to the denial of permanent injunctive relief because the execution date is imminent, the parties do not dispute that the "normal," preliminary injunction standard of review applies. We do not reach, nor do we decide, whether a different standard of review should apply under these circumstances.
[3] Cooper did not actually decide this issue. The panel reached the merits, but expressly declined to address the question of whether the claim was properly made in a habeas petition, a § 1983 action, or both. Cooper, 379 F.3d at 1031. The Fierro decision was vacated, and ultimately dismissed on standing grounds. Fierro v. Terhune, 147 F.3d 1158, 1160 (9th Cir.1998). The Supreme Court recently has also declined to reach the issue. Nelson, 124 S.Ct. at 2122-23.
[4] For the same reason, Beardslee's § 1983 action cannot be considered a second or successive federal habeas corpus petition governed by 28 U.S.C. § 2254.
[5] The State claims that, regardless of this regulatory prohibition, Beardslee could have brought his administrative challenges earlier. Beardslee contends that they would have been dismissed as unripe. The plain language regulation supports Beardslee's argument. Whether or not exceptions would exist for circumstances such as these is an unsettled question. Furthermore, there may be some question, in this context, about whether Beardslee was required to exhaust his state administrative remedies under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), prior to filing a § 1983 action. However, both parties have assumed that exhaustion was required, and the same district court in Cooper had dismissed Cooper's claims for failing to exhaust remedies. In any case, given the regulation and prior action, Beardslee cannot be faulted now for pursuit of his administrative remedies prior to filing this action.

[6] To date, we have not resolved the question of when challenges to execution methods are ripe. In Stewart v. Martinez-Villareal, 523 U.S. 637, 644-45, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998), the Supreme Court held that an inmate's competency challenge was properly dismissed as unripe because "his execution was not imminent and therefore his competency to be executed could not be determined at that time." The Court held that the inmate's claim was "unquestionably ripe" only after it was clear that he "would have no federal habeas relief for his conviction or his death sentence, and the Arizona Supreme Court issued a warrant for his execution." Id. at 643, 118 S.Ct. 1618. We have suggested that a constitutional challenge to an execution method becomes ripe when the method is chosen. LaGrand v. Stewart, 170 F.3d 1158, 1159 (9th Cir.1999). However, because the execution protocol is subject to change, Beardslee argues that his challenge to the protocol, as opposed to a generic challenge to the statutorily specified method, did not become ripe until his execution was imminent as described in Martinez-Villareal. We need not, and do not resolve this question.
[7] The State also points out that we previously rejected challenges to Arizona's method of lethal injection in LaGrand v. Stewart, 133 F.3d 1253, 1265 (9th Cir.1998), and Poland v. Stewart, 117 F.3d 1094, 1104-05 (9th Cir.1997). However, as Beardslee correctly responds, those challenges were not to the execution protocol, did not involve the California procedure at issue here, and were mostly founded on evidentiary deficiencies.
[8] Alabama, Ala.Code 1975 § 15-18-82; Arizona, Ariz.Rev.Stat. Ann. § 13-704; Arkansas, Ark.Code Ann. § 5-4-617; California, Cal.Penal Code § 3604; Colorado, Colo.Rev.Stat. Ann. § 18-1.3-102; Connecticut, Conn. Gen.Stat. § 54100; Delaware, Del.Code Ann. tit. 11, § 4209(f); Florida, Fla. Stat. Ann. § 922.105; Georgia, Ga.Code Ann., § 17-1038; Idaho, Idaho Code § 19-2716; Illinois, 725 Ill. Comp. Stat. Ann. 5/119-5(a)(1); Indiana, Ind.Code Ann. § 35-38-61; Kansas, Kan. Stat. Ann. § 22-4001; Kentucky, Ky.Rev.Stat. Ann. § 431.220; Louisiana, La.Rev.Stat. Ann. § 15:569 B; Maryland, Md.Code Ann., Corr. Servs. § 3-905; Mississippi, Miss.Code Ann. 99-19-51; Missouri, Mo.Rev.Stat. § 546.720; Montana, Mont.Code Ann. § 46-19-103; Nevada, Nev.Rev.Stat. § 176.355 1; New Hampshire, N.H.Rev.Stat. Ann. § 630:5 XIII; New Jersey, N.J. Stat. Ann. § 2C:49-2; New Mexico, N.M. Stat. Ann. § 31-14-11; New York, N.Y. Correct. Law § 658; North Carolina, N.C. Gen.Stat. § 15-187; Ohio, Ohio Rev.Code Ann. § 2949.22; Oklahoma, Okla. Stat. Ann. tit. 22, § 1014; Oregon, Or.Rev.Stat. § 137.473, amended by 2003 Or. Laws 103; Pennsylvania, Pa. Stat. Ann. tit. 61, § 3004; South Carolina, S.C.Code Ann. 24-3-530; South Dakota, S.D. Codified Laws § 23A-27A-32; Tennessee, Tenn.Code Ann. § 40-23-114; Texas, Texas Crim. Proc.Code Ann. § 43.14; Utah, Utah Code Ann. § 77-18-5.5; Virginia, Va.Code Ann. § 53.1-233; Washington, Wash. Rev.Code Ann. § 10.95.180; and Wyoming, Wyo. Stat. Ann. § 7-13-904. Since Cooper was decided, the death penalty statutes in New York and Kansas have been held unconstitutional for reasons other than the method of execution. People v. LaValle, 3 N.Y.3d 88, 783 N.Y.S.2d 485, 817 N.E.2d 341, 367 (2004); State v. Marsh, 102 P.3d 445, 458-59 (Kan.2004).
[9] The states that expressly forbid the use of neuromuscular blocking agents to euthanize animals are: Florida, Fla. Stat. §§ 828.058 and 828.065; Georgia, Ga.Code Ann. § 4-11-5.1; Maine, Me.Rev.Stat. Ann., tit. 17, § 1044; Maryland, Md.Code Ann., Criminal Law, § 10-611; Massachusetts, Mass. Gen. Laws ch. 140 § 151A; New Jersey, N.J. Stat. Ann. 4:22-19.3; New York, N.Y. Agric. & Mkts Law § 374; Oklahoma, Okla. Stat. tit. 4, § 501; and Tennessee, Tenn.Code Ann. § 44-17-303. The states that mandate the use of particular methods for animal euthanasia, most often the use of the sedative sodium pentobarbitol, and therefore implicitly ban the use of neuromuscular blocking agents are: Connecticut, Conn. Gen.Stat. § 22-344a; Delaware, Del.Code Ann. tit. 3, § 8001; Illinois, 510 Ill. Comp. Stat. 70/2.09; Kansas, Kan. Stat. Ann. § 47-1718(a); Kentucky, Ky.Rev.Stat. Ann. § 312.181(17) and Ky. Admin. Regs. 16:090 section 5(1); Louisiana, La.Rev.Stat. Ann. § 3.2465; Missouri, Mo.Rev.Stat. § 578.005(7); Rhode Island, R.I. Gen. Laws § 4-1-34; and South Carolina; S.C.Code Ann. § 47-3-420; Texas, Tex. Health & Safety Code Ann. § 821.052(a).
[10] The most common protocol for animal euthanasia is a single overdose of a barbiturate, usually sodium pentobarbital (which is a longer acting barbiturate than sodium pentothal).
[11] The history of the use of the three chemical protocol gives some force to Beardslee's argument that the adoption of the procedure in California was informally based on the observation of two Texas executions by the then-warden of San Quentin and the precise protocol was never subjected to the rigors of scientific analysis.
[12] The State has advanced no legitimate reason, indeed, no reason at all, for its refusal to disclose the entire protocol to the condemned prisoner.
[13] Indeed, the State's expert conceded that at least one of the purposes for the use of pancuronium bromide in the lethal injection protocol is to prevent seizures that often occur after cardiac arrest induced by the administration of potassium chloride that could be interpreted erroneously by lay observers as pain or discomfort. The record does not contain any other explanation.

[14] We granted the ACLU of Northern California and Death Penalty Focus leave to file an amici brief in this case, and heard argument from Amici. Amici argue that the public has a First Amendment right to a pancuronium bromidefree execution independent of that of Beardslee. Amici contend that the use of pancuronium bromide serves no purpose during an execution other than a purpose not recognized by the Constitution — to prevent viewers from seeing the inmate suffer excruciating pain and convulse as the lethal chemicals are administered. Thus, Amici claim that pancuronium bromide acts as a "chemical curtain" interfering with the public's right to know. See Cal. First Amendment Coalition v. Woodford, 299 F.3d 868 (9th Cir.2002). Although their arguments may have merit, these parties did not intervene in the district court action and their independent claims are not properly before us. See Russian River Watershed Prot. Comm. v. City of Santa Rosa, 142 F.3d 1136, 1141 n. 1 (9th Cir.1998) ("Generally, we will not consider on appeal an issue raised only by an amicus.").

 
 Beardslee v. Woodford, 543 U.S. 1096 (2005)
125 S.Ct. 982 Supreme Court of the United States Donald J. BEARDSLEE, petitioner,
v. Jeanne S. WOODFORD, Director, California
Department of Corrections, et al. No. 04-8157 (04A622). | Jan. 18, 2005. Case below, 395 F.3d 1064.
Opinion

Application for stay of execution of sentence of death presented to Justice O’CONNOR and by her referred to the Court denied. Petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit denied.
Parallel Citations
125 S.Ct. 982 (Mem), 160 L.Ed.2d 910, 73 USLW 3432
	  

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