* The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

DANIEL WAYNE COOK,

 Plaintiff - Appellant,

 v.

JANICE K. BREWER, Governor of

Arizona; CHARLES L. RYAN, Director,

Arizona Department of Corrections;

ERNEST TRUJILLO, Warden, Arizona

Department of Corrections-Eyman;

CARSON MCWILLIAMS, Warden,

Arizona Department of Corrections -

Florence; UNKNOWN PARTIES, Does 1-

50,

 Defendants - Appellees.

No. 11-15743

D.C. No. 2:11-cv-00557-RCB

OPINION

Appeal from the United States District Court

for the District of Arizona

Robert C. Broomfield, Senior District Judge, Presiding

Submitted March 30, 2011* 

San Francisco, California

Filed April 1, 2011

FILED

APR 01 2011

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
1 In this suit, as in his prior § 1983 action, Cook raises a second claim

in addition to his Eighth Amendment claim of unconstitutional pain. Cook’s

second claim is that the administration of the sodium thiopental by medical

professionals constitutes deliberate indifference to Cook’s Eighth Amendment

right to be free from cruel and unusual punishment. For the reasons set forth in our

prior opinion, Cook’s deliberate indifference claim remains derivative of his claim

of unconstitutional pain. See Cook, 2011 WL 902111 at *5. Accordingly, here we

address only the underlying claim.

2

Before: O’SCANNLAIN, GRABER, and CALLAHAN, Circuit Judges.

PER CURIAM:

Plaintiff Daniel Wayne Cook (“Cook”) appeals the district court’s dismissal

of his complaint for failure to state a claim. We affirm.

I

We have already upheld the district court’s denial of Cook’s first complaint

seeking relief under 42 U.S.C. § 1983 (“§ 1983”). Cook v. Brewer, No. 11-15303,

2011 WL 902111 (9th Cir. Mar. 16, 2011). That complaint, like the instant one,

asserted that the Arizona Department of Corrections’ (“ADC”) intended use of

imported, non-Food and Drug Administration (“FDA”) approved, sodium

thiopental in Cook’s execution violates his Eighth Amendment rights because it is

very likely to cause Cook needless suffering.1

 We held that Cook’s speculative

and conclusory allegations were insufficient to state a facially plausible claim that

the sodium thiopental the ADC had obtained is “‘sure or very likely to cause
3

serious illness and needless suffering’” in violation of his Eighth Amendment right

to be free from cruel and unusual punishment. Id. at *3–4 (quoting Baze v. Rees,

553 U.S. 35, 50 (2008)).

On March 25, 2011, Cook filed the instant suit raising the same claim

against the same Defendants. The primary difference between the two cases is that

Cook’s slightly amended complaint contains four new factual allegations.

On March 28, 2011, the district court dismissed Cook’s second § 1983

complaint, holding that it, like the first complaint, failed to state a claim upon

which relief may be granted. See Cook v. Brewer, No. CV 11–557–PHX–RCB,

2011 WL 1119641, *1 (D. Ariz. Mar. 28, 2011). Cook timely appealed.

II

Because this case is essentially identical to Cook’s previous appeal, we rely

on our discussion of the relevant facts and law set forth therein and address only

Cook’s new allegations. Our review is de novo. Shroyer v. New Cingular

Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). We review the

sufficiency of Cook’s claims under Federal Rule of Civil Procedure 8(a) (“Rule

8(a)”) under the standard articulated by the United States Supreme Court in

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009), and Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007). For Cook to establish his Eighth Amendment
2 Cook contends that the district court erred by applying a heightened

pleading standard for each of his two claims. We need not decide that question

because, as noted in text above, we have de novo review. 

4

claim for exposure to future harm of needless pain from the use of the sodium

thiopental at issue here, he is required to show a risk that is “‘sure or very likely to

cause. . . needless suffering,’ and give rise to ‘sufficiently imminent dangers.’” 

Baze, 553 U.S. at 50 (quoting Helling v. McKinney, 509 U.S. 25, 33, 34–35

(1993)).

III

Cook raises four new factual allegations to support his claim that the sodium

thiopental is sure or very likely to cause unconstitutional pain.2

 He asserts that the

sodium thiopental which Arizona plans to use in his execution: (1) “[h]as officially

reported issues with lack of efficacy in the United Kingdom”; (2) is made for

animal use, not human use; (3) “[h]as documented reports of problems in its use in

three executions in the United States”; and (4) was unlawfully “imported in a

manner nearly identical to the process used in Georgia—a process that has resulted

in the Drug Enforcement Administration seizing Georgia’s supply of the

substance.” The district court concluded that, under Rule 8(a)’s pleading standard,

Cook’s new factual allegations still failed to state a facially plausible claim that the

use of sodium thiopental at issue here is “‘sure or very likely to cause serious
3 The state submitted affidavits with its responsive brief. We do not

consider the information set forth in them, because the only issue before us is the

sufficiency of the complaint. We therefore consider only the allegations in the

complaint.

5

illness and needless suffering.’” See Cook, 2011 WL 1119641, at *3 (quoting

Baze, 553 U.S. at 50 (internal quotation marks omitted)). We agree.3

First, Cook alleges that the United Kingdom’s counterpart to the FDA

reported that there have been “twelve adverse drug reaction reports” concerning

sodium thiopental in the past two years, “five of which related to the efficacy of the

substance,” including one involving the same batch number of the sodium

thiopental at issue here. Cook, however, provides no information as to what the

adverse reactions were, whether any of the twelve instances of adverse reactions,

or the one adverse reaction specific to the batch of sodium thiopental at issue here,

is statistically or medically significant, or the nature or extent of the lack of

efficacy. Thus, the new allegations do not, by themselves, state a facially plausible

claim.

Second, Cook alleges that this batch of sodium thiopental was manufactured

for use in animals, not for human use, and asserts that, therefore, the use of this

drug will “fail to properly anesthetize” him or will “cause him severe pain.”

However, Cook alleges no facts supporting his inference that there is some
6

difference between sodium thiopental manufactured for humans and the drug

manufactured for animals, and no facts supporting the assertion that the

administration of sodium thiopental manufactured for animals would cause him

unconstitutional pain.

Third, Cook alleges that the sodium thiopental at issue here caused problems

in three executions by lethal injection in the United States. Specifically, he alleges

that the ADC used a larger dose than called for in its lethal injection protocol for

the execution of Jeffrey Landrigan and that, in three executions involving lethal

injections which used sodium thiopental, including Landrigan’s execution, the

prisoners’ eyes remained open throughout the execution. Cook claims that

prisoners do not keep their eyes open when domestically manufactured sodium

thiopental is used in executions. In support of his claims, he attached several

affidavits to his complaint from non-medical professionals, stating that prisoners

executed by lethal injection typically have their eyes closed.

Again, Cook’s newly discovered allegations do not state a facially plausible

claim that the sodium thiopental will cause him needless pain. Even if Landrigan

received a larger dose of sodium thiopental than was called for in Arizona’s lethal

injection protocol, such a fact does not inherently reflect a problem with the drug. 

Likewise, assuming that the three prisoners all kept their eyes open during their
7

executions, and assuming that this is atypical, we have no medical or scientific

basis for concluding that open eyes reflect a problem with the sodium thiopental or

indicate the presence of severe pain. 

Moreover, there is no basis in the complaint to question the numerous

safeguards in Arizona’s lethal injection protocol that ensure an inmate’s

unconsciousness after the administration of the sodium thiopental. See Cook, 2011

WL 902111, at *4. Indeed, we have noted that, “[a]fter the sodium thiopental is

administered, the [Members of the Medical Team (“MTMs”) ] confirm that the

inmate is unconscious by ‘sight and sound’ using the camera and microphone, and

an MTM enters the execution chamber to physically confirm unconsciousness.” 

Dickens v. Brewer, 631 F.3d 1139, 1143 (9th Cir. 2011). Cook’s complaint does

not plausibly suggest that, despite these safeguards, Arizona would inject a

conscious man with painful lethal drugs. 

Fourth, Cook asserts that this action must be remanded because the district

court did not address his claim that the substance was obtained unlawfully. 

However, in our prior opinion, we stated, “[t]he actual legality of importing this

drug is not at issue here[;] we are only concerned with the constitutionality of its

use on Mr. Cook.” Cook, 2011 WL 902111, at *3, n.3. Cook offers no new

evidence or authority that alters our perspective.
8

IV

Because Cook’s four new allegations do not support the drawing of any nonspeculative conclusions, Cook has failed to state a facially plausible claim that

Arizona’s planned execution is “sure or very likely to cause . . . needless

suffering.” Baze, 553 U.S. at 50 (internal quotation marks omitted). Accordingly,

the district court’s dismissal of Cook’s complaint is AFFIRMED.
9

COUNSEL

Jon M. Sands, Federal Public Defender, Dale A. Baich, Robin C. Konrad,

Golnoosh Farzaneh, Assistant Federal Public Defenders, Phoenix,

Arizona, for the plaintiff-appellant.

Thomas C. Horne, Attorney General, Kent E. Cattani, Chief Counsel,

Capital Litigation Section, Phoenix, Arizona, for the defendants-appellees.