FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THOMAS PAUL WEST; GREGORY ⎫

DICKENS; CHARLES M. HEDLUND;

ROBERT W. MURRAY; THEODORE

WASHINGTON; TODD SMITH,

Plaintiffs-Appellants, No. 11-16707

v. D.C. No.

2:11-cv-01409- JANICE K BREWER, Governor of ⎬ NVW Arizona; CHARLES L. RYAN, District of Arizona, Director, Arizona Department of Phoenix Corrections; ERNEST TRUJILLO;

CARSON MCWILLIAMS, Warden, ORDER

Arizona Department of

Corrections- Florence; UNKNOWN

PARTIES, named as Does 1-50,

Defendants-Appellees. ⎭

Filed July 18, 2011

Before: Andrew J. Kleinfeld, Kim McLane Wardlaw, and

Consuelo M. Callahan, Circuit Judges.

COUNSEL

For petitioner-appellant West: Jon M. Sands, Arizona Federal

Public Defender, Dale Baich (argued), Robin C. Konrad,

Assistant Arizona Federal Public Defenders, Phoenix, Arizona.

For respondent-appellant Ryan: Thomas C. Horne, Attorney

General, Jonathan Bass (argued), Assistant Attorney General,

Tucson, Arizona.

9835
ORDER

Thomas Paul West is scheduled to be executed by the State

of Arizona tomorrow, July 19, 2011. Last night, the district

court denied West’s Emergency Motion for Temporary

Restraining Order or Preliminary Injunction in which West

sought to temporarily stay his execution. West filed a notice

of appeal, and this morning filed an Emergency Motion Under

Circuit Rule 27-3 for an Injunction. We deny his emergency

motion.

In order to obtain preliminary injunctive relief, West must

show “(1) that he is likely to succeed on the merits of such a

claim, (2) that he is likely to suffer irreparable harm in the

absence of preliminary relief, (3) that the balance of equities

tips in his favor, and (4) that an injunction is in the public

interest.” Beaty v. Brewer, ___ F.3d ___, 2011 WL 2040916,

* 6 (9th Cir. May 25, 2011) (citing Winter v. Natural Res.

Def. Council, Inc., 555 U.S. 7, 129 S. Ct 365, 374 (2008). As

we did in Beaty, “[w]e acknowledge that [West] has a strong

interest in being executed in a constitutional manner, but he

has not shown that this interest is threatened in this case.” Id.

West has not shown that the manner in which Arizona intends

to execute him “creates a demonstrated risk of severe pain. He

must show that the risk is substantial when compared to the

known and available alternatives.” Baze v. Rees, 553 U.S. 35,

61 (2008).

The court heard telephonic oral argument on this matter

today. At argument, Arizona’s counsel made several representations. First, he represented that Arizona’s protocol for carrying out executions, a relevant portion of which is attached as

Exhibit A to this order, had been followed in the past and,

more importantly, will be followed in West’s execution. Specifically, he represented that the drugs called for in the protocol are available in the State’s possession, and will be used in

West’s execution. Moreover, he represented that the protocol

will be followed regarding the locations and order of prefer9836 WEST v. BREWER
ence for insertion sites as detailed in Paragraph G of the protocol.

For the reasons expressed by the district court, reinforced

by the representations made by Arizona’s counsel at oral

argument, we conclude West has failed to satisfy his burden

to demonstrate a substantial risk of severe pain by the method

Arizona intends to use to execute him. Baze, 553 U.S. at 61.

Accordingly, West’s motion is DENIED.

WEST v. BREWER 9837
EXHIBIT A

9838 WEST v. BREWER
WEST v. BREWER 9839
9840 WEST v. BREWER
WEST v. BREWER 9841
9842 WEST v. BREWER
WEST v. BREWER 9843
9844 WEST v. BREWER
WEST v. BREWER 9845
9846 WEST v. BREWER
WEST v. BREWER 9847