### FOR PUBLICATION


### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 

# ⎫ T HOMAS P AULW EST ; G REGORY D ICKENS ; C HARLES M. H EDLUND ; R OBERTW. M URRAY ; T HEODORE W ASHINGTON ; T ODD S MITH , No. 11-16707 Plaintiffs-Appellants,
D.C. No. v. 2:11-cv-01409- J ANICEK B REWER , Governor of NVW 

# ⎬ Arizona; C HARLES L. R YAN , District of Arizona, Director, Arizona Department of Phoenix Corrections; E RNEST T RUJILLO ; C ARSONM C W ILLIAMS , Warden, ORDER Arizona Department of Corrections- Florence; U NKNOWN P ARTIES , 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.

9835ORDER

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 mattertoday. 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 protocolwill be followed regarding the locations and order of prefer9836 W ESTv. B REWERence 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

. 9837 W ESTv. B REWEREXHIBIT A 9838 W ESTv. B REWER9839 W ESTv. B REWER9840 W ESTv. B REWER9841 W ESTv. B REWER9842 W ESTv. B REWER9843 W ESTv. B REWER9844 W ESTv. B REWER9845 W ESTv. B REWER9846 W ESTv. B REWER9847 W ESTv. B REWER