Appeal from the United States District Court for the District of Idaho Ronald E. Bush, Magistrate Judge, Presiding*fn1 D.C. No. CV-11-0000445-REB
Submitted, November 16, 2011*fn2
San Francisco, California
Before: Ronald M. Gould, Jay S. Bybee, and Carlos T. Bea, Circuit Judges.
We consider Paul Ezra Rhoades's appeal from the district court's denial of his emergency motion for preliminary injunction or stay of execution. The district court held that the Idaho Department of Correction ("IDOC") has provided appropriate safeguards to ensure that there is not a substantial risk of serious harm to Rhoades in the form of severe pain during the administration of the drugs used in Idaho's three-drug lethal injection protocol; that the safeguards are substantially similar to those contained in execution protocols approved by the Supreme Court and by this court; that the IDOC is not required to implement a different, one-drug protocol in this execution; that Rhoades will suffer irreparable harm in the absence of preliminary relief; that the equities of the case do not require a different result; and that the public interest favors denial of the request for a stay of the execution. We conclude that Rhoades has not shown that he is likely to succeed in his challenge to the protocol. Hence he is not entitled to a stay, and we affirm.
Rhoades is scheduled to be executed by lethal injection by the IDOC on Friday, November 18, 2011. He filed his emergency motion for preliminary injunction or stay of execution in the district court on October 28, 2011. To obtain relief, Rhoades "must demonstrate (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, 649 F.3d 1071, 1072 (9th Cir. 2011) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). Rhoades claims he is entitled to relief. We disagree and explain why we reject his arguments.
We review the district court's denial of Rhoades's emergency motion for preliminary injunction or stay of execution for abuse of discretion. Beardslee v. Woodford, 395 F.3d 1064, 1068 (9th Cir. 2005). "Our review is limited and defer-ential." Id. (quoting Southwest Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc)). "We review underlying legal issues de novo and findings of fact for clear error." Grocery Outlet Inc. v. Albertson's Inc., 497 F.3d 949, 950-51 (9th Cir. 2007).
 Death penalty cases are wrenchingly difficult to assess because of the superordinately high stakes for the prisoner whose execution is scheduled and for society which plans to take the prisoner's life as a sanction for the murder of one or more of its citizens. But the key rules that govern this appeal have already been set. The Supreme Court has approved of the death penalty as a continuing option for states that choose to invoke this supreme punishment. Gregg v. Georgia, 428 U.S. 153, 168-69 (1976). Many, but not all, states have chosen to maintain the death penalty, including Idaho. The Supreme Court has made clear that this is permissible if the standards it has invoked are followed. A three-drug execution protocol in Kentucky was approved by the Supreme Court in Baze v. Rees, 553 U.S. 35 (2008), which signaled that similar procedures would be upheld. Relying on Baze, our circuit approved a three-drug execution protocol in Arizona in Dickens v. Brewer, 631 F.3d 1139 (9th Cir. 2011). We consider Baze and Dickens to be controlling absent a showing of material difference. These cases might permit us to give preliminary relief if Rhoades made a persuasive case that he has shown a substantial risk of serious harm from the protocol, which is risk of gratuitous pain as contrasted with risk of execution, the object of the protocol. So this appeal in essence comes down to the question whether the procedure Idaho uses is similar to or materially different from the procedures approved in Baze and Dickens. If its protocol is similar to the approved three-drug protocols, the existence of an alternative one-drug protocol is not dispositive. We turn to Rhoades's contentions.
Rhoades contends that Idaho's lethal injection protocol, Standard Operating Procedure 135.02.01.001 ("SOP 135"), is not substantially similar to the court-approved three-drug lethal injection protocols in Baze and Dickens. In Baze, the Supreme Court considered whether Kentucky's three-drug lethal injection protocol violated the Eighth Amendment's prohibition of cruel and unusual punishment. The Court concluded that "to prevail on such a claim there must be a substantial risk of serious harm, an objectively intolerable risk of harm that prevents prison officials from pleading that they were subjectively blameless for purposes of the Eighth Amendment." Baze, 553 U.S. at 50 (internal quotation marks omitted). The Court upheld the Kentucky protocol, which involved the sequential administration of sodium pentothal (also known as sodium thiopental), pancuronium bromide, and potassium chloride, concluding that Kentucky's inclusion of safeguards to ensure the effective administration of the drugs mitigated any substantial risk of serious harm. Id. at 56 ("In light of these safeguards, we cannot say that the risks identified by petitioners are so substantial or imminent as to amount to an Eighth Amendment violation.").
In Dickens, we addressed the constitutionality of Arizona's three-drug lethal injection protocol. We held that in accordance with the Supreme Court's decision in Baze, Arizona's protocol fell within the "safe harbor" of lethal injection protocols that are "substantially similar" to the Kentucky protocol. Dickens, 631 F.3d at 1146. SOP 135 was based on, and is nearly identical to, Arizona's lethal injection protocol. What ...