FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GREGORY SCOTT DICKENS; DONALD 

EDWARD BEATY; CHARLES M.

HEDLUND; ROBERT WAYNE

MURRAY; THEODORE WASHINGTON;

TODD SMITH,

Plaintiffs-Appellants, No. 09-16539

v. D.C. No.

JANICE K. BREWER; CARSON  2:07-cv-01770-

MCWILLIAMS, Warden, ASPF; NVW

ROBERT STEWART, Warden, OPINION ASPCE; UNKNOWN EXECUTIONERS,

in their official capacities as

Employees, Contractors and/or

Agents of the ADC; CHARLES L.

RYAN,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Arizona

Neil V. Wake, District Judge, Presiding

Argued and Submitted

December 10, 2010—San Francisco, California

Filed February 9, 2011

Before: Procter Hug, Jr., Dorothy W. Nelson, and

M. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown

2433
COUNSEL

Steven A. Rosenstein and Allen W. Burton, O’Melveny &

Myers LLP, New York, NY; John M. Sands, Robin C. Konrad and Dale A. Baich, Federal Public Defenders, Pheonix,

Arizona, for the plaintiffs-appellants.

Kent E. K Cattani and Jeffrey A. Zick, U.S. Attorney’s

Office, Pheoniz, Arizona, for the defendant-appellees.

OPINION

McKEOWN, Circuit Judge:

I. INTRODUCTION

Like most states that impose the death penalty, Arizona

uses a three-drug lethal injection protocol. Under the protocol,

executions are carried out through the sequential administration of three chemicals—sodium thiopental, pancuronium

bromide and potassium chloride. The problems that can arise

2436 DICKENS v. BREWER
from the use of such a protocol are well known: if the sodium

thiopental is not administered correctly, the inmate will be

improperly anesthetized during the execution and will experience tremendous pain and suffering from the administration

of the pancuronium bromide and potassium chloride. Arizona’s protocol contains a number of safeguards intended to

ensure proper anesthetization. In this appeal, we are asked to

decide whether, despite these safeguards, Arizona’s protocol

creates an unconstitutional risk that an inmate will be improperly anesthetized and thus experience extreme pain and suffering while dying. 

The appellants—Gregory Dickens, Donald Edward Beaty,

Charles M. Hedlund, Michael Emerson Correll, Robert

Wayne Murray, Theodore Washington, and Todd Smith

(referred to collectively as “Dickens”)—are death row

inmates in Arizona. In 2007, Dickens brought an action under

42 U.S.C. § 1983, asserting that Arizona’s execution protocol

violates the Eighth Amendment because of the risk of

improper anesthetization. The district court granted summary

judgment in favor of Arizona, holding that the protocol contains sufficient safeguards to protect against improper anesthetization and thus is constitutional under the standard set

forth by the three-Justice plurality in Baze v. Rees, 553 U.S.

35 (2008)—not giving rise to a “substantial risk of serious

harm” and not “sure or very likely to cause” serious pain and

suffering. 

On appeal, the heart of Dickens’s argument is not that the

safeguards in Arizona’s protocol are inadequate. Dickens does

argue that Arizona should be required to adopt some additional safeguards. His central assertion, however, is that evidence gathered during discovery raises issues of fact as to

whether Arizona will follow the protocol and ensure that the

existing safeguards are properly implemented. Because the

protocol’s safeguards are adequate under the Baze standard

and because there is no material issue of fact regarding compliance with the protocol, we affirm. 

DICKENS v. BREWER 2437
II. BACKGROUND

A. LETHAL INJECTION IN ARIZONA

Arizona has mandated execution by lethal injection since

1992.1 From 1992 to 2000, Arizona executed twenty inmates.

Then there was a six- year hiatus—Arizona did not conduct

any executions from 2000 to 2006. In 2007, Arizona executed

one inmate, Robert Comer, on May 22, 2007.

Arizona uses a three-drug lethal injection cocktail that consists of three chemicals—sodium thiopental, pancuronium

bromide and potassium chloride—administered sequentially.

Sodium thiopental is a fast-acting barbiturate that anesthetizes

the inmate and permits the other chemicals to be administered

without causing pain. Pancuronium bromide is a paralytic

neuromuscular blocking agent that causes complete paralyzation and suffocation. Potassium chloride induces cardiac

arrest. It is uncontested on this record that, if an inmate is not

properly anesthetized by the sodium thiopental at the start of

the execution, he will experience significant pain and suffering from the administration of the pancuronium bromide and

potassium chloride. If the sodium thiopental is administered

properly, however, there is no risk of pain during the execution. 

Until 2007, Arizona did not have any written procedures

for preparing and administering the lethal injection chemicals.

Execution procedures were maintained solely “through practical exercises and training.” In the months leading up to

Comer’s execution in May 2007, Arizona began revising its

execution procedures and drafting a written execution protocol. After Comer’s execution, Arizona further revised the procedures, eventually producing a written protocol dated

November 1, 2007. 

1

Inmates sentenced to death prior to November 23, 1992 may choose

between execution by lethal injection or by lethal gas. Absent an election,

lethal injection is used. 

2438 DICKENS v. BREWER
During the course of this litigation, Arizona agreed to

amend the November 1, 2007 protocol to address some concerns raised by Dickens. Among other amendments, Arizona

agreed to conduct license and background checks on all members of the medical team that assists with executions, and to

no longer employ certain medical team members who Dickens argued were incompetent. Arizona also added training and

experience requirements for medical team members. The

amendments are set forth in a Joint Report submitted to the

district court on April 9, 2009.

The district court considered the constitutionality of the

November 1, 2007 protocol, as amended by the Joint Report

(the “Protocol”), and our analysis on appeal is similarly constrained. We have not considered—and express no opinion on

—any amendments to the Protocol or any provisions that

were not addressed by the district court.2

B. ARIZONA’S LETHAL INJECTION PROTOCOL

Under the Protocol, an execution is carried out by two

teams—the Special Operations Team (“SOT”) and the Medical Team. SOT’s primary duty is to administer the chemicals.

It consists of at least seven medically trained individuals and

a team leader; all members must undergo a screening panel

and individual interview prior to joining SOT. SOT members

must participate in at least ten execution rehearsals per year,

and, if a Warrant of Execution issues, train weekly up until

the execution. 

The Medical Team, which has at least two members, is

responsible for inserting the intravenous (IV) catheters

2Arizona never provided the district court with an integrated copy of the

Protocol (the November 1, 2007 protocol as amended by the Joint Report).

On appeal, we directed Arizona to submit a copy of the Protocol. The version of the protocol that Arizona submitted, however, contains several provisions that were not before the district court. 

DICKENS v. BREWER 2439
through which the chemicals are injected, preparing the chemicals and supervising their administration, and monitoring the

inmate. Members of the Medical Team (“MTMs”) must be

medically trained personnel, such as physicians, physician

assistants, nurses, or emergency medical technicians; they

must have at least one year of current and relevant professional experience in their assigned duties. MTMs’s professional qualifications, training, experience, professional

licenses and certifications are checked prior to hiring. Licensing and criminal history reviews are conducted before hiring,

annually and upon the issuance of a Warrant of Execution.

The MTMs responsible for inserting the IVs and any MTMs

without medical licenses must participate in at least ten

rehearsals per year with SOT. All MTMs must participate in

at least two rehearsals prior to participating in an actual execution. 

According to the Protocol, the chemicals must be administered through IV catheters inserted in the inmate’s peripheral

veins. The MTMs who place the peripheral lines must have

at least one year of current and regular experience with the

procedure. If it is not possible to place peripheral lines, an

MTM can place a percutaneous central line in the femoral

vein in the inmate’s thigh. The MTM who places the central

line must have at least one year of current and regular experience with the procedure. 

The MTMs and the SOT Leader directly observe the

inmate throughout the administration of the chemicals, and

monitor the inmate’s face with a high-resolution, color video

camera. A microphone is attached to the inmate’s chest so

that the teams can speak to and hear the inmate during the

execution. The warden remains in the execution chamber

throughout the procedure to observe the IV lines and notify

the MTMs of any problems. 

After the sodium thiopental is administered, the MTMs

confirm that the inmate is unconscious by “sight and sound”

2440 DICKENS v. BREWER
using the camera and microphone, and an MTM enters the

execution chamber to physically confirm unconsciousness. If

the inmate is conscious, the Director of the Arizona Department of Corrections may order the SOT members to administer an additional dose of sodium thiopental, and the MTMs go

through the same steps to verify unconsciousness. The SOT

members cannot administer the pancuronium bromide until

the MTMs have confirmed that the inmate is unconscious and

at least three minutes have elapsed from the commencement

of the administration of the sodium thiopental. The IV lines

are flushed with heparin/saline between each injection, to

ensure that they are clean and functioning properly.

C. DISTRICT COURT PROCEEDINGS

In his original complaint filed in 2007, Dickens asserted

that the Protocol carries an unconstitutional risk of inflicting

extreme pain and suffering because it does not adequately

protect against the risk that he will be insufficiently anesthetized prior to administration of the pancuronium bromide and

potassium chloride. 

In 2008, while Dickens’s suit was in the discovery phase,

the United States Supreme Court issued its decision in Baze,

in which a plurality held that Kentucky’s lethal injection protocol is constitutional because it does not carry a “substantial

risk of serious harm.” Id. at 49-50 (internal quotation and citation omitted). Following the Baze decision, Arizona moved

for summary judgment, arguing that the Protocol is similar to

the Kentucy protocol and thus constitutional under the substantial risk standard. Arizona also agreed to the amendments

discussed above.3

3Specifically, the five amendments agreed to in the Joint Report are: (1)

The default means for administering the chemicals will be peripheral IV

lines, rather than a central line to the femoral vein, and the peripheral lines

will be placed by individuals with at least one year of current and relevant

experience with the procedure; (2) a false line—a second IV line that empDICKENS v. BREWER 2441
In opposition to Arizona’s motion, Dickens argued that the

Protocol’s safeguards are inadequate, and that questions of

fact remained as to whether Arizona would follow the Protocol when carrying out an execution. Dickens also posited that

Arizona should be required to adopt a one-drug protocol, consisting of one, very large dose of sodium thiopental, which

guarantees death without the risk of pain and suffering. 

The district court granted Arizona’s motion for summary

judgment. The court held that the Protocol, which included

the amended procedures, provides the same or greater protection than Kentucky’s protocol and thus does not create a substantial risk of serious harm in violation of the Eighth

Amendment. 

III. ANALYSIS

A. THE BAZE STANDARD

[1] In Baze, the Supreme Court held that Kentucky’s threedrug lethal injection protocol does not violate the Eighth

Amendment. The Justices, however, were not unanimous in

the rationale for their decision. Seven Justices issued four

opinions upholding the protocol, while two dissented. Chief

Justice Roberts authored the plurality opinion, which was

joined by Justices Kennedy and Alito. The plurality held that

the Kentucky protocol is constitutional because it contains

ties into a bucket—will not be used; (3) the clinical concentration of

sodium thiopental will be 2.5%; (4) Arizona will conduct licensing and

background checks on all MTMs prior to participation in an execution,

annually after contracting, and upon issuance of a Warrant of Execution;

and (5) two individuals previously hired for the Medical Team—Dr. Alan

Doerhoff and an individual known as MTM #3—will not participate in

any future executions in Arizona. Arizona also added the requirements

that all MTMs participate in at least two trainings prior to participating in

an execution, and that MTMs have at least one year of current and relevant

professional experience. 

2442 DICKENS v. BREWER
sufficient safeguards to prevent improper anesthetization, and

thus does not give rise to a “substantial risk of serious harm”

and is not “sure or very likely to cause” serious pain and suffering. Baze, 553 U.S. at 49-50. Justice Thomas, joined by

Justice Scalia, concurred in the judgment but stated that an

execution protocol is unconstitutional only if it is “deliberately designed to inflict pain,” which Kentucky’s protocol is

not. Id. at 94. 

Justice Stevens also concurred in the judgment, but did not

articulate a standard for assessing the protocol’s constitutionality. Rather, Justice Stevens expressed his belief that the

death penalty is unjustified, but stated that he was bound by

the Court’s existing framework for evaluating the protocol’s

constitutionality. Id. at 78-87. Under that framework and on

the basis of the evidence before him, Justice Stevens concluded that Kentucky’s protocol did not violate the Eighth

Amendment. Id. at 87. 

Justice Breyer concurred in the judgment but adopted the

standard articulated by Justice Ginsburg in her dissent: a

method of execution is unconstitutional if it poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain. Id. at 107. Justice Breyer found that the evidence

did not establish that the Kentucky protocol posed such a risk.

Id. Justices Ginsburg and Souter dissented on the ground that

the case should be remanded to the district court for further

consideration of whether the safeguards prevented an unnecessary risk of pain. Id. at 114. 

Faced with the Justices’s divergent views, we turn to the

Supreme Court’s decision in Marks v. United States, 430 U.S.

188 (1977), for guidance. In Marks, the Court explained that

when it issues a “fragmented” decision,” the holding of the

Court may be viewed as that position taken by those Members

who concurred in the judgments on the narrowest grounds.”

Id. at 193. When applying the Marks rule, we look for “ ‘a

legal standard which, when applied, will necessarily produce

DICKENS v. BREWER 2443
results with which a majority of [the Justices] from that case

would agree.’ ” United States v. Williams, 435 F.3d 1148,

1157 (9th Cir. 2006) (quoting Planned Parenthood v. Casey,

947 F.2d 682, 693 (3d Cir. 1991)). Where the Justices issue

three or more opinions, the “narrowest grounds” principle

identifies as authoritative “the opinion of the Justice or Justices who concurred on the narrowest grounds necessary to

secure a majority.” See Casey, 947 F.2d at 694 n.7. 

Dickens argues that we should follow Justice Stevens’s

opinion because he concurred on the narrowest grounds—the

facts of the case and existing precedent. This approach misapprehends the Marks rule. Justice Stevens’s concurrence is not

the narrowest concurrence necessary to secure a majority.

This honor belongs to the plurality. If an execution protocol

is found constitutional under the plurality’s substantial risk

standard, Justices Thomas and Scalia will concur in the judgment, because their standard for constitutionality is broader—

a protocol that does not present a substantial risk of serious

pain likely is not deliberately designed to inflict such pain. If

the protocol is found unconstitutional under the plurality’s

standard, then Justices Breyer, Ginsburg, Souter, and likely

Stevens would concur in the judgment because their standards

for constitutionality are narrower—a protocol that presents a

substantial risk of serious pain likely also presents an unnecessary risk of serious pain. The plurality’s standard, therefore,

is the narrowest necessary to secure a majority in any given

challenge to a method of execution.

[2] Every circuit court that has considered a challenge to

a lethal injection protocol following Baze has analyzed the

protocol under the plurality’s substantial risk standard. See

Raby v. Livingston, 600 F.3d 552, 557 (5th Cir. 2010);

Nooner v. Norris, 594 F.3d 592, 598-99 (8th Cir. 2010); Jackson v. Danberg, 594 F.3d 210, 219-22 (3d Cir. 2010) (finding

the plurality’s opinion controlling under the Marks rule);

Cooey v. Strickland, 589 F.3d 210, 220 (6th Cir. 2009); Clemons v. Crawford, 585 F.3d 1119, 1125-26 (8th Cir. 2009);

2444 DICKENS v. BREWER
Harbison v. Little, 571 F.3d 531, 535 (6th Cir. 2009); Emmett

v. Johnson, 532 F.3d 291, 298 (4th Cir. 2008); see also Morales v. Cate, 623 F.3d 828, 829 (9th Cir. 2010) (noting that

whether California’s lethal injection protocol is constitutional

depends on whether it creates a “substantial risk of serious

harm”). In October 2010, the Supreme Court itself applied the

plurality’s standard when vacating a temporary restraining

order barring an execution in Arizona because the sodium

thiopental to be used had been obtained from a foreign source.

See Brewer v. Landrigan, 131 S. Ct. 445 (2010). Citing the

Baze plurality, the Court held that the execution could proceed because there was no evidence that the drug was “ ‘sure

or very likely to cause serious illness and needless suffering.’ ” Id. (citing Baze, 553 U.S. at 50) (emphasis omitted).

We are, therefore, in good company in holding that the Baze

plurality’s substantial risk standard is the controlling standard

for assessing the constitutionality of an execution protocol. 

B. CONSTITUTIONALITY OF THE PROTOCOL

We next turn to Dickens’s argument that questions of fact

remain as to the Protocol’s constitutionality, even under the

substantial risk standard. We begin by noting what Dickens is

not arguing: by and large, Dickens is not arguing that the Protocol’s safeguards are inadequate. Although Dickens urges

that Arizona should be required to adopt some additional safeguards, the heart of his argument is that questions of fact

remain as to whether Arizona will follow the Protocol and

ensure that its existing safeguards are implemented properly.

Dickens claims that evidence obtained during discovery suggests that Arizona is incapable of—or not interested in—

hiring competent individuals to serve on the execution teams

and adhering to the Protocol’s procedures during an execution. If Arizona does not follow the Protocol, Dickens contends, there is a substantial risk that he will be inadequately

anesthetized when the pancuronium bromide and potassium

chloride are administered. 

DICKENS v. BREWER 2445
Baze does not foreclose Dickens’s argument. Baze creates

a safe harbor for lethal injection protocols that are substantially similar to Kentucky’s protocol; the plurality states that

such protocols do not create a substantial risk of serious harm.

Id. at 61. Arizona’s Protocol falls within this safe harbor—it

incorporates even more safeguards against maladministration

than Kentucky’s protocol, including requirements that the

Medical Team monitor the inmate with a microphone and

camera and physically confirm unconsciousness. See Baze,

533 U.S. at 55 (describing the safeguards in the Kentucky

protocol). Dickens, however, asks us to look beyond the Protocol’s facial constitutionality to consider whether there is a

substantial risk that it will be implemented in an unconstitutional manner. In Baze, the plurality specifically stated that

there was no evidence of improper implementation of Kentucky’s protocol. Id. at 46. Dickens asserts that there is such

evidence here, and we must evaluate the Protocol in light of

Dickens’s evidence. This is an important inquiry. If a court

could never look beyond the facial constitutionality of an execution protocol when presented with evidence of improper

administration, states could simply adopt constitutionally sufficient protocols similar to Kentucky’s and then flout them

without fear of repercussion. 

[3] Nonetheless, to succeed on his argument, Dickens

faces an uphill battle. Most of the evidence Dickens cites

comes from events occurring before Arizona adopted the Protocol and its safeguards. For the evidence to affect our analysis, Dickens must raise issues of fact as to whether there is a

substantial risk that he will be improperly anesthetized despite

the Protocol’s safeguards, including those added through

amendment. See, Baze 553 U.S. at 56 (“In light of [the protocol’s] safeguards, we cannot say that the risks identified by

petitioner are so substantial or imminent as to amount to an

Eighth Amendment violation.”). In addition, the evidence

must show more than a single accident or mistake or failure

to follow the Protocol. Although we do not discount in any

way a singular violation or mistake, Baze held that “an iso2446 DICKENS v. BREWER
lated mishap alone . . . while regrettable, does not . . . give

rise to a substantial risk of serious harm.” Id. at 50 (internal

quotations and citations omitted). 

Overcoming these evidentiary hurdles is not an impossible

task, but it is a difficult one. See id. at 53 (plaintiffs must meet

the “heavy burden of showing that Kentucky’s procedure is

cruelly inhumane”) (internal quotations and citation omitted).

Indeed, since Baze, every circuit court that has considered a

challenge to a lethal injection protocol has upheld the challenged protocol, despite evidence of past problems carrying

out executions. See Raby, 600 F.3d at 558-61 (evidence of

problems with inserting IVs and monitoring); Nooner, 594

F.3d at 601, 608 (evidence that inmates may have been conscious during second injection); Jackson, 594 F.3d at 212-13,

229 (evidence that wrong amounts of chemicals were administered and that personnel did not check equipment and attend

training); Cooey, 589 F.3d at 217-18, 224, 233-34 (evidence

of problems inserting IV); Clemons, 585 F.3d at 1125, 1128

(past employment of incompetent medical team personnel);

Harbison, 571 F.3d at 537, 539 (evidence of hiring personnel

with drug and mental health problems, and insufficient training); Emmett, 532 F.3d at 303, 306-08 (evidence of inadequate doses of sodium thiopental and problems with IV lines).

1. Competence of Execution Team Members 

Dickens argues that past missteps in hiring and training

raise an issue of fact as to whether Arizona will hire competent team members in the future. The evidence Dickens points

to is Arizona’s hiring of two unqualified MTMs—Dr. Alan

Doerhoff and an individual known as MTM #3—and its failure to interview and screen a current member of the SOT and

an MTM known as MTM #1. Arizona hired Doerhoff to serve

on the Medical Team for the Comer execution in May 2007.

Doerhoff is a physician and licensed surgeon who lives in

Missouri; he has assisted with executions in several states and

for the federal government. At the time Arizona hired DoerhDICKENS v. BREWER 2447
off, he had testified in a case challenging Missouri’s execution protocol that he is dyslexic, has problems with numbers,

knowingly “improvised” the doses of lethal injection drugs,

adhered to no set protocol, and kept no records of procedures.

Following Doerhoff’s testimony, Missouri publicly

announced that it would no longer use him in executions. 

Arizona hired MTM #3 in February 2008. During discovery, Dickens learned that MTM #3 did not attend medical

school, had his nursing license suspended, and did not have

any other medical licenses. When he was hired for the Medical Team, MTM #3 owned an appliance business. He has

been treated for post-traumatic stress disorder from service in

Iraq, and has been arrested multiple times. As one of the

amendments to the November 1, 2007 protocol, Arizona

agreed never to use Doerhoff or MTM #3 in future executions. 

[4] We do not question the challenges to Doerhoff and

MTM #3, nor do we reject the claim that a Medical Team

made up of individuals like them could undermine the Protocol. At the time that Doerhoff and MTM #3 were hired, however, there were neither formal experience and training

requirements nor routine background and license checks on

MTMs. These requirements are all amendments to the

November 1, 2007 protocol that were adopted through the

Joint Report. It is undisputed that neither Doerhoff nor MTM

#3 would have been hired under the current Protocol. But the

fact that Arizona hired unqualified MTMs before the Protocol

was in place does not create an issue of fact as to whether Arizona will do the same when operating under the Protocol.4

See

4At her deposition—taken before the protocol was amended to add the

background check requirement—the former Director of the Arizona

Department of Corrections, Dora B. Schriro, stated that Arizona conducted

background checks on potential MTMs. Dickens argues that Arizona

failed to follow this procedure when it hired Doerhoff and MTM #3, and

thus that there is a question of fact as to whether Arizona will conduct the

2448 DICKENS v. BREWER
Raby, 600 F.3d at 560 (evidence of past failure to follow protocol did not “rise to the level of constitutional significance”

because “the Execution Procedure mandates . . . that sufficient

safeguards are in place to reduce the risk of pain below the

level of constitutional significance”); Jackson, 594 F.3d at

226 (evidence of failure to follow former procedures does not

“suggest the existence of conditions that are sure or very

likely to cause serious illness and needless suffering”) (internal citation and quotation omitted); Clemons, 585 F.3d at

1128 (“The mere allegation Missouri employed [Doerhoff] in

the past simply does not support the prisoners’ allegations

Missouri will employ ‘incompetent’ and ‘unqualified’ personnel in the future.”). 

[5] During discovery, Dickens also learned that Arizona

failed to interview and screen MTM #1 and a current member

of the SOT. When MTM #1 was hired in 2007, there were no

interview or screening requirements for MTMs. Arizona was

required to interview and screen the SOT member, and it

failed to do so. One, isolated failure to follow a procedure

does not create an “objectively intolerable risk of harm,” particularly where there is no evidence that the SOT member is

unqualified for his job or that any problems have arisen from

his participation on SOT. See Baze, 553 U.S. at 50 (“[A]n isolated mishap alone . . . while regrettable, does not suggest . . .

a substantial risk of serious harm.”) (internal quotation and

citation omitted); Raby, 600 F.3d at 560 (possibility that warden had not screened execution team members did not raise

checks in the future. At the time the two were hired, however, there was

no formal, written requirement that Arizona conduct licensing and background checks. The fact that Arizona failed to follow an informal, unwritten policy when it hired Doerhoff and MTM #3 does not raise a question

of fact as to whether Arizona will follow a formal, written policy in the

future. 

DICKENS v. BREWER 2449
issue of fact where no evidence that the team members lacked

required qualifications).5

2. Implementation of Execution Procedures

Dickens also contends that there were problems with

administering the chemicals during Comer’s execution. The

records from Comer’s execution indicate that the chemicals

were administered more quickly than planned. The checklist

setting forth each step of the execution states that the administration of the sodium thiopental should take approximately

two minutes and forty-five seconds. The execution records,

however, reflect that it took less than two minutes to administer. In addition, the SOT members administering the chemicals did not flush the line with heparin/saline between two of

the injections. MTM #1 caught the error before the second

injection and instructed the SOT members to flush the line. 

[6] Although we agree with Dickens that it is critical for

Arizona to follow the procedures set forth in the Protocol

when conducting an execution, the evidence from Comer’s

execution—undertaken before the Protocol was in place—is

insufficient to cast doubt on Arizona’s ability or willingness

to do so. Even construing the evidence in the light most favorable to Dickens, there is no indication that Arizona failed to

follow the procedures in place at the time of the execution.

Absent any evidence that Arizona failed to adhere to execution procedures in the past, it would be pure speculation to

conclude that Arizona might fail to follow the Protocol in the

future or even that a material issue of fact has been raised

5

In January 2009, when the parties filed their appeal briefs, Arizona did

not have a complete Medical Team in place. MTM #3 was let go and

MTM #1 is deployed overseas with the military. Dickens argues that the

incomplete Medical Team makes it impossible to assess whether Arizona

is capable of hiring competent MTMs. The Protocol, however, sets forth

the standards under which Arizona must hire future MTMs. These standards are adequate and the evidence does not suggest that Arizona will fail

to adhere to them in future hiring. 

2450 DICKENS v. BREWER
with respect to the effect of past compliance. See Emmett, 532

F.3d at 304 (“[S]peculation and building of inferences [of

improper administration] . . . is wholly insufficient to create

a genuine issue of material fact that Virginia has a history of

failing to properly administer full doses of thiopental . . . .”).

[7] Since Comer’s execution, Arizona also has adopted

additional safeguards to reduce the risk of improper anesthetization. Team members must undergo extensive training, the

MTMs must physically confirm unconsciousness and SOT

must wait three minutes before the pancuronium bromide is

injected. Even if the evidence suggested that Arizona’s past

execution procedures created a substantial risk of harm, that

evidence, alone, would not establish an issue of fact as to

whether such a risk exists under the Protocol. See Nooner,

594 F.3d at 602 (“[E]ven if [Arkansas] engaged in a ‘series

of abortive’ execution attempts under previous protocols, the

record does not establish a genuine issue of material fact

about whether the Inmates will remain conscious . . . under

the current protocol.”). 

Finally, without dismissing the significance of any problems that might have occurred during Comer’s execution, we

are bound by Baze to hold that “an isolated mishap . . . while

regrettable, does not suggest . . . a ‘substantial risk of serious

harm.’ ” Baze, 553 U.S. at 50 (quoting Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 842 (1947) (upholding a second attempt to electrocute a prisoner after the first attempt

failed)).

3. Other Alleged Inadequacies in the Protocol

Dickens’s remaining complaints regarding the adequacy of

the Protocol’s safeguards are unpersuasive. Dickens argues

that Arizona should be required to add three safeguards to the

Protocol: a requirement that an MTM have experience monitoring anesthetic depth (the depth of an inmate’s unconsciousness following administration of the sodium thiopental); a

DICKENS v. BREWER 2451
requirement that all MTMs be screened for medical and psychological problems; and a requirement that at least one

MTM have experience placing a percutaneous central line, in

case it is necessary to resort to this back-up procedure during

an execution.

[8] Baze counsels that “an inmate cannot succeed on an

Eighth Amendment claim simply by showing one more step

the State could take as a failsafe for other, independently adequate measures.” Baze, 553 U.S. at 60-61. Where an execution protocol contains sufficient safeguards, the risk of not

adopting an additional safeguard is too “remote and attenuated” to give rise to a substantial risk of serious harm. Id. at 58-

59. The Protocol contains more safeguards than the Kentucky

protocol and there is no evidence that Arizona will fail to follow it in future executions. Accordingly, the risk that Dickens

will be improperly anesthetized if Arizona fails to adopt the

additional safeguards is too remote and attenuated to raise

questions of fact as to the Protocol’s constitutionality. Id.; see

also Harbison, 571 F.3d at 537-38 (failure to require physical

consciousness check and evidence of hiring personnel with

drug problems and PTSD did not render protocol unconstitutional where there were sufficient safeguards to ensure proper

anesthetization); Nooner, 594 F.3d at 604 (requirement that

alternative central line be placed by licensed physician was

sufficient to address risk that unqualified personnel will place

line); Jackson, 594 F.3d at 227 (“[B]y speculating about what

[the] officials might do in what the record intimates to be the

very unlikely hypothetical scenario in which the backup IV

line cannot be established, the Plaintiffs have failed to show

the degree of imminence Baze requires.”).

Dickens also challenges the Protocol’s failure to provide

formal procedures for amendment. If Arizona amends the

Protocol to modify the current safeguards, Dickens—or

another affected death row inmate—may be able to challenge

the constitutionality of the amended protocol. The notion that

2452 DICKENS v. BREWER
Arizona might adopt and use a new, unconstitutional protocol

can only be dismissed as rank speculation.

C. AVAILABILITY OF THE ONE-DRUG PROTOCOL

[9] We cannot embrace the claim that the Protocol is

unconstitutional because a one-drug approach is a proven

alternative. Under Baze, the failure to adopt an alternative

protocol establishes an Eighth Amendment violation only if

the current protocol creates a substantial risk of serious harm

that the alternative protocol will reduce. Baze, 553 U.S. at 52.

“[A] condemned prisoner cannot successfully challenge a

State’s method of execution merely by showing a slightly or

marginally safer alternative [exists].” Id. at 51 (internal quotation and citation omitted). Here, we have determined that the

Protocol does not create a substantial risk of serious harm,

and thus Arizona cannot be required to adopt a one-drug protocol, even if there is evidence that the protocol is safer and

feasible.

AFFIRMED.

DICKENS v. BREWER 2453