UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ JAMES A. CODDINGTON; * BENJAMIN R. COLE; CARLOS CUESTA-RODRIGUEZ; RICHARD S. FAIRCHILD; WENDEL L A. GRISSOM; MARLON D. HARMON; RAYMOND E. JOHNSON; EMMANUEL A. LITTLEJOHN; JAMES D. PAVATT; KENDRICK A. SIMPSON; KEVIN R. UNDERWOOD; BRENDA E. ANDREW; RICHARD E. GLOSSIP; PHILLIP D. HANCOCK; ALFRED B. MITCHELL; TREMANE WOOD; WADE LAY, by and through his next friend Rhonda Kemp; RONSON KYLE BUSH; SCOTT EIZEMBER; JOHN F HANSON; MICA ALEXANDER MARTINEZ; RICKY RAY MALONE; CLARAN CE GOODE; ANTHONY SANCH EZ; MICHAEL DEWAYNE SMITH; JAMES RYDER; RICHARD ROJEM; JEMAINE MONTEIL CANNON, Plaintiffs - Appellants,

v. SCOTT CROW; RANDY CHANDLER; BETTY GESELL; JOSEPH GRIFFIN; F. LYNN HAUETER; KATHRYN A. LAFORTUNE; STEPHAN MOORE; CALVIN PRINCE; T. HASTINGS SIEGFRIED; DARYL WOODARD; JIM FARRIS; ABOUTANAA EL HABTI; No. 22-6100 (D.C. No. 5:14- CV-00665-F) (W.D. Okla.)

* Plaintiff-Appellant James Coddi ngton was executed by the State of Oklahoma on August 25, 2022. FILED United States Court of Appeals Tenth Circuit 

### October 19, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 22-6100 Document: 010110755561 Date Filed: 10/19/2022 Page: 12 JUSTIN FARRIS; MICHAEL CARPENTER; JUSTIN GIUDICE, Defendants - Appellees.

––––––––––––––––––– –––––––––––––––– WADE LAY, by and through his next friend Rhonda Kemp, Plaintiff - Appellant, and JAMES A. CODDINGTON; BRENDA E. ANDREW; RONSON KYLE BUSH; JEMAINE MONTEIL CANNON; BENJAMIN R. COLE; CARLOS CUESTA-RODRIGUEZ; RICHARD S. FAIRCHILD; WENDEL L A. GRISSOM; MARLON D. HARMON; RAYMOND E. JOHNSON; EMMANUEL A. LITTLEJOHN; JAMES D. PAVATT; KENDRICK A. SIMPSON; KEVIN R. UNDERWOOD; RICHAR D E. GLOSSIP; PHILLIP D. HANCOCK; ALFRED B. MITCHELL; TREMANE WOOD; SCOTT EIZEMBER; JOHN F HANSON; MICA ALEXANDER MARTINEZ; RICKY RAY MALONE; CLARAN CE GOODE; ANTHONY SANCH EZ; MICHAEL DEWAYNE SMITH; JAMES RYDER; RICHARD ROJEM, Plaintiffs,

v. SCOTT CROW; RANDY CHANDLER; BETTY GESELL; JOSEPH GRIFFIN; F. LYNN HAUETER; KATHRYN A. LAFORTUNE; STEPHAN MOORE; CALVIN PRINCE; T. HASTINGS No. 22-6112 (D.C. No. 5:14- CV-00665-F) (W.D. Okla.) Appellate Case: 22-6100 Document: 010110755561 Date Filed: 10/19/2022 Page: 23 SIEGFRIED; DARYL WOODARD; JIM FARRIS; ABOUTANAA EL HABTI; JUSTIN FARRIS; MICHAEL CARPENTER; JUSTIN GIUDICE, Defendants - Appellees.

________________ _________________ ORDER AND JUDGMENT **

________________ _________________ Before TYMKOVICH , MURPHY and MORITZ , Circuit Judges.

________________ _________________ Plaintiffs-Appellants are Oklahoma death -row inmates who brought this action under 42 U.S.C. § 1983 challenging Okla homa’s lethal in jection protocol. 1 In July 2020, they filed a Third Amended Complaint (TAC) asserting ten cl aims for relief. The district court dismisse d or granted summary judgme nt to defendants on all but one of those claims, Count II, which asse rted that Oklahoma’s lethal injection protocol violates the Eight h Amendment to the United States Constitution. The district court held a bench tr ial concerning Count II, ruled in favor of defendants, and entered final judgment in favor of defendants on all claims.

** After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

1 The Supreme Court recently reaffirmed that an action un der § 1983 is the proper vehicle for such met hod-of-execution challenges. See Nance v. Ward , 142 S. Ct. 2214, 2219 (2022). Appellate Case: 22-6100 Document: 010110755561 Date Filed: 10/19/2022 Page: 34 In these consolidated appeal s, plaintiffs challenge the district court’s grant of summary judgment on two of their clai ms: Count IV, asserting unconstitutional denial of access to counsel and the cour ts; and Count V, asserting intentional deprivation of the right to counsel in vi olation of 18 U.S.C. § 3599. They do not appeal Count II. We have jurisdiction unde r 28 U.S.C. § 1291. Fo r the reasons explained below, we affirm the di strict court’s judgment.
I. BACKGROUND
A. Oklahoma’s Previous Lethal In jection Protocol, the Lockett Execution, and Plaintiffs’ Commencement of This Lawsuit Oklahoma carries out lethal-injection ex ecutions using a th ree-drug protocol that begins with a sedative, followed by a paralytic, follo wed by a drug that stops the heart. For many years, Oklahoma used sodi um thiopental, a barbiturate sedative, as the first drug to “induce[] a d eep, comalike unconsciousness.” Warner v. Gross , 776 F.3d 721, 724 (10t h Cir.) (internal quotation marks omitted), aff’d sub nom. Glossip v. Gross , 576 U.S. 863 (2015). Pancuronium bromide, administered next, was employed as “a paralytic agent that inhibits all muscular-skeletal movements and, by paralyzing the diaphr agm, stops respiration.” Id. (internal quotation marks omitted). Finally, potassium chloride was us ed to “interfere[] w ith the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest.” Id. at 725 (internal quotation marks omitted). Appellate Case: 22-6100 Document: 010110755561 Date Filed: 10/19/2022 Page: 45 Death penalty opponents eventually convinced the makers of sodium thiopental and an alternative barbiturate, pe ntobarbital, not to sell those drugs for use in executions. Thus, in 2014, Oklahom a switched to a 100-milligram dose of a benzodiazepine, midazolam hydroc hloride, as the sedative. 2 Vecuronium bromide was used as the paralytic agent, and potassi um chloride continued to be used as the heart-stopping drug. The State’s first executi on using midazolam occurred in April 2014, involving inmate Clayton Lockett. Th e execution team administered the midazolam, declared Lockett to be unconscious, administered the vecuronium bromide, and then began administering the potassium ch loride. At this point, how ever, Mr. Lockett began to move and speak, complaining that someth ing was wrong and the drugs were not working. The execution team soon discov ered the IV had been improperly set, causing the drugs to leak into the surrounding tissue rather than traveling directly into Lockett’s bloodstream. In all, it took forty-three minutes after the midazolam was first injected for Lockett to be declared dead. In June 2014, plaintiffs f iled this lawsuit. They alleged, among other things, that the midazolam-first protocol is a fo rm of cruel and unus ual punishment, in violation of the Eighth Amendment.

2 Midazolam is commonly known by its brand name, “Versed.” Appellate Case: 22-6100 Document: 010110755561 Date Filed: 10/19/2022 Page: 56 B. The Revised Protocol, Subsequent Executions, and the Eventual Moratorium on Execut ions in Oklahoma The State investigated Mr. Lockett’s execution. In September 2014, it adopted a new execution protocol that permitted four alternative drug comb inations to carry out lethal injection. The fourth alternative called fo r the midazolam/vecuronium bromide/potassium chloride combination that was curren tly in use. Under this revised protocol, however, the inmate w ould receive 500 milligrams of midazolam (by all accounts, a massive dose) at the outset of the execution. Plaintiffs sought a prelimin ary injunction against the St ate’s use of this revised protocol. The district court denied th e injunction and this court affirmed. See
Warner , 776 F.3d at 723–24. Thus, in Ja nuary 2015, Oklahoma executed Charles Warner using the revised protocol. The Warner execution appeared to proceed without incident. However, while preparing to execute another inmate, Ri chard Glossip, in September 2015, prison officials discovered they had received pot assium acetate instead of potassium chloride. That discovery led to further inquiry and it became clear they had likewise received (and used) potassiu m acetate in the Warner execu tion. The governor of Oklahoma granted Glossip a reprieve to prevent the in correct drug from being used on him. A few weeks later, the parties filed a joint stipulation to close the case. Defendants agreed not to se ek an execution date for a ny plaintiff or any other condemned prisoners until it provided plain tiffs with further information about its Appellate Case: 22-6100 Document: 010110755561 Date Filed: 10/19/2022 Page: 67 execution protocol and gave plai ntiffs official notice that the State would be able to comply with the express term s of the protocol. The dist rict court administratively closed the case.
C. The Current Protocol & Plainti ffs’ Third Amended Complaint In February 2020, Oklahoma adopted the re vised protocol now at issue. That protocol includes the same three-drug combination in the same amounts as the protocol in effect at th e time of the Warner executi on and the called-off Glossip execution. 3 The protocol also specifies that vi sits with the prison er’s attorneys of record must end “two hours prior to the sc heduled execution or earli er if necessary to begin preparing the inmate for the execution.” R. vol. I at 820. 4 In light of the revised protocol, the dist rict court agreed to reopen the case, and plaintiffs filed the TAC, which remains th e operative complaint. The TAC asserted ten claims for relief, of wh ich three remain relevant:

 Count II, which challenged the 500- milligram midazolam-first protocol as a form of cruel or unusual punishment. i.e. , it allegedly presents “a substantial risk of seve re pain” as compared to “a feasible and readily

3 The protocol provides three options for the second drug: pancuronium bromide, vecuronium bromide, and rocuronium bromide. At an earlier stage of this litigation, the parties agreed that these chemicals are functionally equivalent for execution purposes. See Glossip v. Gross , 576 U.S. 863, 873 (2015).

4 The record contains ma ny overlapping pagination conve ntions. In this order and judgment, all citations to the record are to the “Page x of y ” designation at the bottom center of each page. Appellate Case: 22-6100 Document: 010110755561 Date Filed: 10/19/2022 Page: 78 implemented alternative method of execution . . . that the State has refused to adopt without a legitimate penological reason,” Bucklew v. Precythe , 139 S. Ct. 11 12, 1125 (2019). 5

 Count IV, which assert ed a right of access to the courts, and a corresponding right of an attorney’s assistance, under the First, Fifth, and Sixth Amendments. 6 Plaintiffs claimed that their attorneys must be allowed to view the entire execution pr ocedure, from star t to finish, so they can “identify, object to, challenge, or correct , any issues with the IV-setting or drug administration pr ocess.” R. vol. I at 198, ¶ 140.

 Count V, which alleged essentially the same injury as Count IV, but relied on 18 U.S.C. § 3599, a st atute authorizing court-appointed counsel at public expense for i ndigent prisoners facing the death penalty.

5 As already noted, plaintif fs have abandoned Count II, but the fact that they have abandoned it informs our analysis of the claims they still pursue.

6 At summary judgment, plaintiffs de scribed their invocation of the Fifth Amendment as inadvertent and asked the distri ct court to treat that assertion as an allegation under the Fourteenth Am endment’s due process clause. See R. vol. I at 4084 n.16. Appellate Case: 22-6100 Document: 010110755561 Date Filed: 10/19/2022 Page: 89 D. The District Court’s Pretrial Disposition of Certain Claims In September 2020, the district court di smissed three of plai ntiffs’ ten claims with prejudice. 7 Then, in August 2021, the court granted summary judgment to the defendants on six additional clai ms, including Counts IV and V. 8 As to Count IV, the district court reasoned that “[p]ra ctical and legal problems, entwined, are fatal to [the cl aim].” R. vol. I at 5206. Th e court noted “the practical realities attendant to litigation and emerge ncy adjudication of a ny claim lodged while an execution is in progress” and opined that such difficulties ri sked subjecting the State to dilatory or speculative suits. Id. at 5207. It found nothing in governing authority that would support a right of acc ess to counsel through all stages of the execution process and expiring only at the point when the prisoner was declared dead. The district court fu rther agreed with cases from other circuits holding that

7 These three claims were: Count I, a lleging a due process violation based on asserted failure to disclo se sufficient information ab out the development of the protocol and execution procedures; Count III, alleging a due process and Eighth Amendment violation based on deliberate indifference to the plaintiffs’ serious medical needs; and Count VIII, alleging th at plaintiffs’ sincerely held religious beliefs are violated by the re quirement that they specify an alternative method of execution, see Bucklew , 139 S. Ct. at 1125.

8 The other claims against which the di strict court granted summary judgment were: Count VI, alleging that the substitu tion of midazolam as an execution drug violates the ex post facto clauses of the United States and Oklahoma Constitutions; Count VII, alleging that use of midazolam violates due process; Count IX, alleging that plaintiffs will be subj ected to human experimentati on in violation of the Eighth Amendment; and Count X, alleging denial of a right of access to government information, in violation of the First Amendment. Appellate Case: 22-6100 Document: 010110755561 Date Filed: 10/19/2022 Page: 910 plaintiffs raising similar cl aims had not shown actual in jury, and so had failed to establish their standing to bring such a claim. See id. at 5208–11. For similar reasons, the district court re jected Count V. In the court’s view, plaintiffs had not shown that 18 U.S.C. § 3599 grants a more extensive right to counsel than the constitutional pr ovisions asserted in Count IV. As to Count II, the district court gran ted summary judgment against plaintiffs Coddington, Donald Grant, J ohn Grant, Jones, Lay, and Po stelle. The district court ruled that these six plaintif fs’ refusal to proffer an al ternative method of execution meant they necessarily failed to meet their burden to show that the State’s protocol presents a substantial risk of severe pain as compared to a feasible alternative, see Bucklew , 139 S. Ct. at 1125. This left for trial only Count II as to the remaining plaintiffs. The district court set a bench trial to be gin in late February 2022.
E. Executions Carried Out Between Summary Judgment and the Bench Trial The district court’s resolution of all clai ms against six plain tiffs left the State free to proceed with their executions. Fo r reasons not relevant here, however, the district court eventually v acated its grant of summary ju dgment against plaintiffs Coddington and Lay. Also, the governor of Oklahoma commuted Jones’s sentence to life without parole. As to the remaining three plaintiffs who refused to proffer an alternative method of execution (Donald Grant, John Gran t, and Postelle), their executions went Appellate Case: 22-6100 Document: 010110755561 Date Filed: 10/19/2022 Page: 1011 forward between October 2021 and February 2022, as did the execution of an inmate who had never been permitted to join this lawsuit, Bigler Stouffer. The State used the protocol at issue here in those ex ecutions, and the circumstances of each execution became part of the evidence at the bench tria l, as discussed below.
F. The Bench Trial and Resulting Order In February and March 2022, the distri ct court held a multi-day bench trial on Count II, at which several expert and lay w itnesses testified. The ultimate question, again, was whether the midazola m-first protocol presents “a substantial risk of severe pain” as compared to “a f easible and readily implemen ted alternative method of execution . . . that the State has refused to adopt without a legitimate penological reason,” Bucklew , 139 S. Ct. at 1125. Plaintiffs claimed that midazolam cannot render someone fully insensate, meaning the condemned prisoner would feel a sense of suffocation as the vecuronium bromide paralyzed his diaphragm, and then would feel an intense internal burning sensation from the potassium chloride. Plai ntiffs also claimed that the prisoner would have a sense of su ffocation or drowning throughout, because midazolam causes fluid to accumulate in the lungs. The district court heard expert testimony on both sides of these issues. It ruled against plaintiffs in its findi ngs of fact and conclusions of law, issued on June 6, 2022. The court found, among other thi ngs, that the protocol’s 500-milligram dose of midazolam will quickly and effectivel y render a condemned prisoner unconscious Appellate Case: 22-6100 Document: 010110755561 Date Filed: 10/19/2022 Page: 1112 and insensate, so the remainde r of the execution process pos es no substantial risk of severe pain. The district court also made factual fi ndings about the four executions carried out in between its summary judgment order a nd the bench trial. The only finding that continues to matter (given the arguments pres ented in the parties’ briefs) is that the State had a problem with its “shadow board” in at least three of those executions, and probably all four. The shadow board is a special tray with a slot for each syringe to be used during the execution. Beneath each sl ot is a label of a particular color with the name and dosage of the drug to be administered through the corresponding syringe. The corresponding syri nge is supposed to have the identical label. In the recent executions, the slots for vecuroni um bromide were labeled rocuronium bromide (one of the alternative paralyti cs), although the syringes themselves were labeled vecuronium bromide. The district court found that the st ate had administered vecuronium bromide in each of the executions, despite the labeling discrepancy on the shadow board. For these reasons and othe rs, the district court ru led against plaintiffs on Count II and entered judgment accordi ngly, leading to this appeal.
G. The OCCA’s Orders Setting Execution Dates After the district court entered judgment, the Okla homa Court of Criminal Appeals (OCCA) entered orders setting execution dates for tw enty-five of the inmates who remained in the case. We denied a request for stay of execution brought Appellate Case: 22-6100 Document: 010110755561 Date Filed: 10/19/2022 Page: 1213 by plaintiff Coddington, the first inmate scheduled for execution. He was executed on August 25, 2022.
II. STANDARD OF REVIEW The district court resolved the claims at issue (Counts IV and V) through summary judgment, so this c ourt’s review is de novo. Twigg v. Hawker Beechcraft Corp. , 659 F.3d 987, 99 7 (10th Cir. 2011).
III. ANALYSIS The Constitution protects a ri ght of access to the cour ts, which “assures that no person will be denied the opportunity to present to the judiciary allegations concerning violations of fundamental c onstitutional rights.” Wolff v. McDonnell , 418 U.S. 539, 579 (1974) (i dentifying the right of acces s as a component of due process); see also Christopher v. Harbury , 536 U.S. 403, 415 n. 12 (2002) (observing that the Supreme Court has variously descri bed the right of access to the courts as part of the Article IV privileges and i mmunities clause, the Fi rst Amendment petition clause, the Fifth and Fourteenth Amendmen ts’ respective due process clauses, and the Fourteenth Amendment’s equal protection clause). Plaintiffs describe the right in questi on as not just a ri ght of access to the courts, but a right of access to their counsel, through whom they interact with the courts. The relevant case la w does not thoroughly flesh out the relationship between the right of access to courts and the right of access to one’s attorn ey. However, in a case challenging a prison’s restrictions on la wyers visiting their incarcerated clients, this circuit has said that “access to counsel assure d by the Sixth Amendment is Appellate Case: 22-6100 Document: 010110755561 Date Filed: 10/19/2022 Page: 1314 essential” to safeguard the Fourteenth Am endment right of access to the courts. Mann v. Reynolds , 46 F.3d 1055, 1059 (10th Cir. 1995). Moreover, the State does not argue that the right of access to the courts never includes a guarantee of contact with one’s attorney. Thus, we will not dw ell, in the abstract , on the scope of the access-to-counsel guarantee with in the right of access to the courts. The question presented in this case is how that guarantee applies, if at all, in the context of an ongoing execution. Plaintiffs say that the fo llowing aspects (or alleged aspects) of the current protocol, “[t]aken together,” Aplt. Opening Br. at 22, violate their right of access to the courts (and counsel) in the execution context:

 “the Protocol denies counsel access to a telephone during the execution process, making it impossible for counsel to communicate with the courts or the Governor during the execution,” id. at 21; 9

 “the Protocol terminates prisoners’ access to counsel two hours prior to the execution or earlier if necessary,” id. (internal quotation marks omitted);

9 Plaintiffs cite section VI .C.4 of the protocol for th is restriction, but that section merely announces that the inmate may invite five persons to witness the execution. See R. vol. I at 810. We can find nothing in the protocol addressing witnesses’ phones. That said, defendant strenuously argue that permitting phones would create problems. We therefore assu me that phones are prohibited, even if the protocol itself does not say so. Appellate Case: 22-6100 Document: 010110755561 Date Filed: 10/19/2022 Page: 1415  “the Execution Protocol does not provide to counsel pre-execution readiness information or the results of pre-execution medical and mental health assessments, including issues establishing or maintaining IV access,” id. ; 10 and

 “the Protocol allows the Director to order that the curtains between the witness room and the execution ch amber be closed at any time,” id.
at 22. 11 Plaintiffs accordingly conte nd that “[t]he Protocol make s it effectively impossible for Plaintiffs to file a claim under the Eighth Amendment or request reprieve from the Governor . . . during the execution process.” Id.

10 The protocol says that, at least thirty-five days before the execution, the prisoner’s medical condition must be assessed to determine if it poses problems to the execution process, including problems with setting or maintaining IV lines. See R. vol. I at 813–14. The protocol is si lent about whether the outcome of that assessment may be shared w ith the prisoner’s attorney.

11 “At any time” is not clear. The re levant section of the protocol says, If, after approximately five (5 ) minutes the inmate remains conscious, the IV Team lead er shall communicate this information to the director, al ong with all IV Team leader input. The director shall determine how to proceed or, if necessary, to start the proce dure over at a later time or stop. The director may order the curtains to the witness viewing room be closed, and if necessary, for witnesses to be removed from the facility. R. vol. I at 841–42. Plaintiffs appear to interpret the final sent ence as unrelated to the two preceding sentences. Another interp retation would be that the director may close the curtains if the in mate remains conscious after five minutes. Because this order and judgment disposes of plaintiffs’ claims on broader grounds, explained infra , we need not decide whic h interpretation is correct. Appellate Case: 22-6100 Document: 010110755561 Date Filed: 10/19/2022 Page: 1516 So framed, plaintiffs’ access -to-courts claim runs in to immediate difficulty. The right of access to the courts is not a freestanding right, but a means to vindicate other rights. If plaintiffs have been “s tymied” by official ac tion from filing suit to redress an “arguably actionable harm,” Lewis v. Casey , 518 U.S. 343, 351 (1996), or if government action has deprived them of “an arguable (though not yet established) claim,” id. at 353 n.3, they may bring an access- to-courts claim to remove the barrier preventing them from filing the su it they wanted to bring in th e first place, or to seek redress for a claim that has been forever lost, see Christopher , 536 U.S. at 412–14. But plaintiffs may not sue simp ly to remove a barrier they believe will interfere with their right of access to the courts, assuming a claim arises. See, e.g. , Lewis , 518 U.S. at 351 (holding that prisoners could not invoke the access- to-courts right to reform the prison law library without showing that the library’s inadequ acies are preventing them from bringing, or caused them to lose , arguable constitutional claims). Such a claim would fail the Article I II requirement of an injury in fact, and the court would therefore lack jurisdic tion to decide it. See id. at 349 & n.1, 351; see also Christopher , 536 U.S. at 415 (“[T]he right [of access to the courts] is ancillary to the underlying claim, without which a plaintiff cannot have suffered injury by being shut out of court.”); Lujan v. Defenders of Wildlife , 504 U.S. 555, 560 (1992) (holding that an Article III injury must be “a ctual or imminent, not conjectural or hypothetical” (internal quot ation marks omitted)). As the district court put it, “[P]laintiffs assert a right . . . to have their counsel proctor the execution process, from beginn ing to end, with a view to initiating Appellate Case: 22-6100 Document: 010110755561 Date Filed: 10/19/2022 Page: 1617 litigation if they see something they deem cons titutionally objectionable. That, as a matter of law, is not sufficient.” R. vol. II at 638. We agree. By not appealing the district court’s judgment on Count II, plaint iffs have abandoned their claim that the State’s current protocol will likely cause them severe pain a nd suffering. Thus, plaintiffs necessarily rely on a generic possibility that some thing might go wrong during their individual executions. And just as the plaintiffs in Lewis could not use the access-to-courts right to reform the prison law library in anticipation of claims they might need to bring, plaintiffs here cannot invoke their acce ss-to-courts right to reform the execution protocol in anticipation of claims th ey might want to file if something goes wrong during an execution. Plaintiffs respond that if they cannot sue now to es tablish a right of close contact with their attorney throughout the execution pro cess (and their attorney’s right to a phone during that time), they wi ll almost certainly be unable to bring a mid-execution Eighth Amendment claim in the event something goes wrong. Plaintiffs point us to district court d ecisions relying on this logic to hold that injury-in-fact must be interpreted differe ntly in the execution context, so that a condemned prisoner can bring an access-to-c ourts claim at a meaningful time. See, e.g. , McGehee v. Hutchinson , 463 F. Supp. 3d 870, 925 (E.D. Ark. 2020) (“[T]he traditional actual injury analysis makes no sense when many of the claims could not even be recognized until during the execution pr ocess. . . . [T]he circumstances of an execution present an inherent risk of act ual injury to the timely and meaningful presentation of non-frivolous claims to a court.” (internal quotation marks and Appellate Case: 22-6100 Document: 010110755561 Date Filed: 10/19/2022 Page: 1718 citation omitted)), aff’d on other grounds sub nom . Johnson v. Hutchinson , 44 F.4th 1116 (8th Cir. 2022). 12 We appreciate plaintiffs’ point, but no federal court may exercise jurisdiction beyond what Article III permits, and Ar ticle III does not permit suits based on “conjectural or hypothetical” injuries. Lujan , 504 U.S. at 560 (internal quotation marks omitted). Thus, the district court pr operly declined jurisdiction over plaintiffs’ access-to-courts claim based on the gene ric possibility that something might go wrong during an execution. Cf. Whitaker v. Collier , 862 F.3d 490, 501 (5th Cir. 2017) (“The plaintiffs point to the possibi lity of botched execu tions that access to counsel could address, but that is just the kind of isolated mishap that is not cognizable via a method-of-execution clai m.” (internal quotation marks omitted)). Plaintiffs further argue, “The probl ems that arose during prior Oklahoma executions are commonplace, not isolated in cidents.” Aplt. Opening Br. at 13. Plaintiffs point to two types of problems: (1 ) difficulty with the IV , as in the Lockett execution; and (2) using a drug not permitt ed by the protocol, as in the Warner execution and the called-off Glossip executi ons (and which was arguably a risk in the four executions that took place between summary judgment and the bench trial, due

12 Employing this reasoning, McGehee ordered that the parties abide by an agreement to allow an extr a attorney in the viewing room, and access to a phone (potentially including a ce ll phone without a camera). Id. at 930–31. But, in the next subsection of the court’s order, the c ourt reverted—without explanation—to the traditional injury-in-fact st andard to deny plaintiffs’ at torneys an opportunity to witness the entire process up close ( e.g. , inserting the IVs, pushing the syringes, etc.). See id. at 931–33. Appellate Case: 22-6100 Document: 010110755561 Date Filed: 10/19/2022 Page: 1819 to mislabeling on the shadow board). We pr esume plaintiffs mean to say that this evidence shows they face an injury th at is “imminent, not conjectural or hypothetical,” Lujan , 504 U.S. at 560 (internal quotati on marks omitted). We find, to the contrary, that this evidence does not sati sfy plaintiffs’ burden to demonstrate they have standing. See Raines v. Byrd , 521 U.S. 811, 818 (1997) (holding that the party bringing the claim “must establish th at they have standing to sue”). First, plaintiffs poi nt us to nothing in the record showing that Oklahoma has regularly experienced issues with the IV, much less i ssues causing severe pain. Cf. Glossip v. Gross , 576 U.S. 863, 877 (2015) (“[P]risoners cannot successfully challenge a method of execution unless they es tablish that the met hod presents a risk that is sure or very likely to cause serious illness and need less suffering, and give rise to sufficiently imminent dangers.” (internal quot ation marks omitted)). Second, the fact that the State, in 2014, twice obtai ned a non-protocol drug to carry out an execution (potassium acetate in stead of potassium chloride) does not elevate that possibility from hypothetical to imminent in future executions under the current protocol. We also vi ew the mislabeling on the sha dow board as immaterial in these circumstances. That discrepancy involved two approved drugs (vecuronium bromide vs. rocuronium bromide), not any no n-protocol drugs. Re gardless, use of a non-protocol drug may violat e the protocol, but it is not, without more, an Eighth Appellate Case: 22-6100 Document: 010110755561 Date Filed: 10/19/2022 Page: 1920 Amendment violation. There is no evidence, for example, that the State’s use of potassium acetate on Mr. Warner caused him any conscious pain. 13 For these reasons, Oklahoma’s earlier problems in the ex ecution chamber are not enough to show that fu ture similar problems are im minent, much less problems rising to an Eighth Am endment violation. Plaintiffs also claim that their “expos ure to the risk of a botched execution causes current emotional and psychological ha rm sufficient to es tablish Article III standing.” Aplt. Opening Br. at 17. Plai ntiffs never raised this argument in the district court, so they fo rfeited it—and they do not argu e for plain-error review on appeal, so this court n eed not consider it. See Richison v. Ernest Grp., Inc. , 634 F.3d 1123, 1130–31 (10th Cir. 2011). But we would reject the argument on the merits
anyway.

13 Plaintiffs claim that Mr. Warner was heard to say, “My body is on fire. No one should go through this,” as the potassi um acetate entered his bloodstream. Aplt. Opening Br. at 13 (internal quotation mark s and brackets omitted). In support, plaintiffs cite an al legation from the TAC. See R. vol. I at 154, ¶ 37. Plaintiffs cannot rely on allegations from the comp laint to defeat summary judgment. See Mountain Highlands, LLC v. Hendricks , 616 F.3d 1167, 1170 (10th Cir. 2010) (“[T]he nonmovant must go beyond the pleadi ngs and designate speci fic facts . . . .” (internal quotation marks omitted)). Rega rdless, the TAC says Warner spoke the alleged words as the midazolam was being administered ( not the potassium acetate), after which he was declared unconscious. As far as we are aware, plaintiffs have never since claimed that midazolam creates a burning sensation th roughout the body. Plaintiffs also direct the cour t to the first page of a stat e grand jury report concerning Warner’s execution. See R. vol. I at 1917. That page says nothing about Warner’s reaction to the execution drugs. Althoug h we have no duty to go beyond what plaintiffs have cited, see Eateries, Inc. v. J.R. Simplot Co. , 346 F.3d 1225, 1232 (10th Cir. 2003), we have reviewed the rest of th e report and found nothing supporting plaintiffs’ claim. Appellate Case: 22-6100 Document: 010110755561 Date Filed: 10/19/2022 Page: 2021 Plaintiffs’ argument relies on TransUnion LLC v. Ramirez , 141 S. Ct. 2190 (2021), where a class of more than 8,00 0 individuals sued TransUnion for, among other things, failing to follow reasonable procedures to ensure the accuracy of information in th eir credit files, see id. at 2202. TransUnion had not disclosed inaccurate information as to all 8,000 class members— only about 1,800 had suffered that fate. See id. But the district court ruled, and the court of appeals agreed , that all 8,000 had Article III standi ng to bring the reasonable-pr ocedures claim and seek damages. See id. The Supreme Court held, however, that only the 1,800 victims of inaccurate disclosure had sta nding to sue for damages. Id. at 2208–14. As to the rest of the class, the mere exis tence of inaccurate information in their files created no actionable injury. See id. at 2210. As part of its analysis, the Supreme C ourt included a footnote speculating that “a plaintiff’s knowledge that he or she is exposed to a risk of future physical, monetary, or reputational harm could cause its own current emotional or psychological harm.” Id. at 2211 n.7. But the Cour t “t[ook] no position on whether or how such an emotional or psychologi cal harm could suffi ce for Article III purposes” because the plaintiffs “ha[ d] not relied on such a theory.” Id. Plaintiffs in this case as k us to reach the issue th e Supreme Court avoided in
TransUnion , and to resolve it in their favor. We need not do so. We are confident that if this theory of Artic le III injury is valid, it would not apply here. First, plaintiffs point us to nothing in the record supporting their claim that they currently experience emotional or ps ychological distress due to fear that something will go Appellate Case: 22-6100 Document: 010110755561 Date Filed: 10/19/2022 Page: 2122 wrong during their respective executions. Sec ond, if current emotional distress based on fear of future harm is enough for injury-i n-fact, we believe that such a fear would need to be reasonably founded. As previous ly explained, plaintif fs offer insufficient evidence that something is likely to go wrong and cause conscious, severe pain during their respective executions. Finally, plaintiffs place heavy emphasis on 18 U.S.C. § 3599. In the district court, plaintiffs’ summary judgment brie fing offered no specific defense of their § 3599 claim (Count V), but instead invoked the statute as one authority among many supporting the notion that they have a ri ght of access to the courts (apparently referring to Counts IV and V collectively). On appeal, however, they have made § 3599 a centerpiece of their argument and have recast it as granting a right of access to the governor instead of the courts. Th ey note that the stat ute says indigent litigants facing the death penalty may receiv e an appointed attorney at government expense, § 3599(a)(1), and the appoin tment continues through “all available post-conviction process,” including “proceedi ngs for executive or other clemency as may be available,” § 3599(e). So, they say, § 3599 grants them a right to petition the governor for a reprieve if something star ts to go wrong during an execution—roughly analogous to what happene d on the day of Mr. Glossi p’s execution when prison officials discovered they had received pot assium acetate, not potassium chloride. 14

14 To be clear, Mr. Glossip’s execution was not underway when prison officials made their discovery. That discovery, a nd the governor’s reprie ve, came earlier in the day, without the interven tion of the prisoner’s counsel. Appellate Case: 22-6100 Document: 010110755561 Date Filed: 10/19/2022 Page: 2223 Without close attorney contact throughout the execution process, plaintiffs say they will never be able to exer cise this alleged right. In their reply brief, plain tiffs expand this argument even further. They say the Supreme Court has declared that § 3599 prov ides a broader right to counsel than the Sixth Amendment. They also argue that, b ecause executive reprie ve or clemency is ultimately a discretionary act of merc y (not a remedy for a legal injury), a condemned prisoner asserting his right to this form of reli ef “does not need a colorable Eighth Amendment claim, or any claim at all.” Aplt. Reply Br. at 3. As with their argument that current fear of future injury provides standing, plaintiffs never raised any of this in th e district court—and they do not argue for plain-error review on appeal, so we need not consider this new access-to-thegovernor theory, Richison , 634 F.3d at 1130–31. 15 This is doubly true for the arguments newly raised in their reply brief. See, e.g. , United States v. Leffler , 942 F.3d 1192, 1197 (10th Cir. 2019) (“[W]e generally do not consider arguments made for the first time on appeal in an appellant’s reply br ief and deem those arguments waived.”). But we find plain tiffs’ arguments meritless, so we address them notwithstanding the waiver.

15 In their reply brief, plaintiffs sa y that they preserved the argument by: (i) quoting § 3599 in their complaint, in cluding the phrase from subsection (e) regarding “proceedings for executive or ot her clemency as may be available”; and (ii) arguing at summary judgment that § 3599, among other authorities, grants a right of access to counsel throug hout the execution procedure. We are not persuaded. Appellate Case: 22-6100 Document: 010110755561 Date Filed: 10/19/2022 Page: 2324 Again, plaintiffs now say that § 35 99 grants rights beyond what the Sixth Amendment confers. Perhap s this is intended to addr ess the district court’s conclusion that § 3599 grants no right of access to the courts and counsel beyond what the Constitution guarantees. Even th en, plaintiffs frame their argument as a response to the State (not to the district court) and immedi ately tie this assertion to their claim that they have a right of access to the gover nor—so it is still not clear they intend to challenge the district cour t’s reasoning, which fo cused on the scope of a right of access to the courts. In any event, this argument is not he lpful to plaintiffs’ position, for several reasons. First, the case plaintiffs cite in support of their argument, Martel v. Clair , 565 U.S. 648 (2012), addresse d a very narrow question, namely, what standard should apply when a capital defendant wh o has received appointed counsel under § 3599 moves for new counsel, see id. at 652. Second, c ontrary to plaintiffs’ characterization of the case, Martel says that § 3599 “grants federal capital defendants and capital habeas petitioners en hanced rights of representation” as compared to the federal st atute governing appointmen t of counsel in non-capital cases (18 U.S.C. § 3006A), see 565 U.S. at 658–59, not as compared to the Sixth Amendment. Third, the Court observe d that § 3599 and § 3006A both provide counsel in situations wher e the Sixth Amendment does not mandate counsel at public expense, but it did so merely to emphasi ze that the Sixth Am endment was not the proper authority to consult when deciding wh at standard to apply when the defendant moves for new counsel under § 3599. See 565 U.S. at 661–62. Finally, whatever Appellate Case: 22-6100 Document: 010110755561 Date Filed: 10/19/2022 Page: 2425 Congress may have intended by § 3599 (and plai ntiffs give us no reason to believe that Congress intended it to operate as they now claim), Congress cannot override Article III’s injury-in-fact requirement. See Summers v. Earth Island Inst. , 555 U.S. 488, 497 (2009) (“[T]he requirement of injury in fact is a hard floor of Article III jurisdiction that cannot be removed by statute.”). This last point also disposes of plai ntiffs’ argument that the right to seek reprieve or clemency from the governor need not be based on an underlying injury because such relief is an act of mercy, not redress for an injury. However plaintiffs choose to frame this claim, they cannot rais e it in federal court without an actual or imminent injury-in-fact. Assuming for argum ent’s sake that § 3599 grants a right of access to the governor, plaintiffs do not argu e that they will inev itably appeal to the governor for mercy from the execution ch amber. We are frankly unsure such an argument would be enough to sustain st anding anyway, given that any condemned prisoner could claim as much, for any re ason, which would turn standing into

a pro forma pleading exercise. Regardless, as argued in their reply brief—which, again, is the first time they have raised this theory—they are still asking a federal court to assume jurisdiction over a claim that might arise, potentially justifying a request for relief (from the governor, in this case). Article III does not permit such an exercise of jurisdiction. In short, plaintiffs have not carried th eir burden to show they face an imminent injury-in-fact as their re spective executions are carrie d out. The district court correctly granted summary judgment in the State’s favor on Counts IV and V. Appellate Case: 22-6100 Document: 010110755561 Date Filed: 10/19/2022 Page: 2526 IV. CONCLUSION We affirm the district court’s judgmen t on Counts IV and V of the Third Amended Complaint. This outcome reso lves both appeals at issue in this consolidated proceeding.

Entered for the Court Per Curiam Appellate Case: 22-6100 Document: 010110755561 Date Filed: 10/19/2022 Page: 26