Gerald Ross Pizzuto, J R.; Thomas E. Creech v. JOSH TEWALT , Director, Idaho Department of Correction

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GERALD ROSS PIZZUTO, J R.; THOMAS
E. CREECH,
Plaintiffs-Appellants,
v.
J OSH TEWALT , Director, Idaho
Department of Correction, in his
official capacity; CHAD PAGE , Chief,
Division of Prisons, Idaho
Department of Correction, in his
official capacity; TYRELL DAVIS ,
Warden Maximum Security
Institution; UNKNOWN EMPLOYEES ,
AGENTS , OR CONTRACTORS OF THE
I DAHO DEPARTMENT OF
CORRECTION, in their official
capacities,
Defendants-Appellees,
and
BRAD LITTLE , Idaho State Governor,
in his official capacity,
Defendant.
No. 20-36044
D.C. No.
1:20-cv-00114-
DCN
OPINION

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2 PIZZUTO V. TEWALT
Appeal from the United States District Court
for the District of Idaho
David C. Nye, Chief District Judge, Presiding
Argued and Submitted April 5, 2021
Seattle, Washington
Filed May 12, 2021
Before: Ronald M. Gould, Johnnie B. Rawlinson, and
Mark J. Bennett, Circuit Judges.
Opinion by Judge Bennett;
Partial Concurrence and Partial Dissent by Judge Gould
SUMMARY*
Prisoner Civil Rights
The panel reversed the district court’s dismissal of
plaintiffs’ claims as unripe and remanded in an action
brought pursuant to 42 U.S.C. § 1983 by two Idaho death
row inmates, Gerald Pizzuto and Thomas Creech, who
sought information concerning Idaho’s execution
procedures.
Plaintiffs did not in this action allege that their execution
would be unconstitutional; rather, they claimed that the
deprivation of information itself constituted a violation of
their constitutional and statutory rights. The district court
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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PIZZUTO V. TEWALT 3
dismissed plaintiffs’ claims without prejudice, finding they
were not ripe for adjudication. The district court reasoned
that both Pizzuto and Creech had pending post-conviction
appeals, and thus the ultimate question of whether the two
men would even be executed remained open and
undetermined.
In rejecting the district court’s reasoning, the panel held
that under the circumstances, plaintiffs’ claims were ripe.
The panel noted that Idaho acknowledged that both Pizzuto
and Creech were close to exhausting their post-conviction
appeals and that the state intended to proceed with plaintiffs’
executions. Plaintiffs alleged the state’s refusal to provide
certain information violated their rights now. And the state
had issued a revised execution protocol, from which the
court could readily determine now whether plaintiffs’
alleged rights, if they existed, had been violated. Because of
the issuance of a revised execution protocol, however,
plaintiffs’ claims alleging violations arising from the lack of
protocol were moot.
Applying the principles of ripeness and mootness to each
of plaintiffs’ nine specific claims, the panel held that Claim
One, alleging that plaintiffs have an enforceable right of
access to certain government proceedings and records that is
secured by the First and Fourteenth Amendments, and that
the Idaho Department of Corrections (“IDOC”) had violated
that right by failing to provide them with execution-related
information, was ripe. Claim 2, alleging that the deprivation
of execution-related information denied plaintiffs’ their First
Amendment right to petition the government for redress of
grievances, was ripe because it alleged a current
constitutional violation which was fit for resolution. Claim
Three, which alleged that that the absence of a real execution
protocol constitutes cruel and unusual punishment in

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4 PIZZUTO V. TEWALT
violation of the Eighth Amendment, was moot because that
factual allegation was no longer true, and there was now a
revised Standard Operating Procedure (“SOP”). Count
Four, which alleged that Idaho’s deprivation of information
violated the plaintiffs’ Fourteenth Amendment right to due
process, was mostly moot because plaintiffs were now on
notice of the revised SOP and could challenge its legality.
However, to the extent Claim Four asserted a due process
violation premised on the SOP’s failure to provide
execution-related information, that claim was ripe. Claim
Five, alleging two different equal protection violations, was
moot to the extent it alleged that the absence of a real
execution protocol violated the Equal Protection Clause, but
was ripe to the extent it suggested that the practice of
essentially creating a new protocol for each condemned
inmate as soon as his execution was imminent was itself an
equal protection violation. Claim Six, which the panel
understood to allege that the lack of an execution protocol
deprived plaintiffs of their statutory rights, was moot. Claim
Seven, alleging that the absence of legislative guidelines for
executions violated the separation of powers under the Idaho
Constitution, was ripe. Claim Eight, which alleged that
IDOC’s refusal to promulgate a protocol violates its
statutory obligations under Idaho Code § 19-2716, was
moot. Claim Nine, which the panel construed to mean that
the absence of protocol violates the Eighth Amendment, was
moot.
The panel held that on remand, plaintiffs will likely seek
and should be permitted to amend their complaint to reallege
their ripe claims against the revised SOP and fix the flaws in
their state law claims. Because time was of the essence, the
panel also felt it appropriate to discuss the merits of the
claims in advance of plaintiffs’ decision to amend their
complaint on remand. The panel held that plaintiffs’ First

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PIZZUTO V. TEWALT 5
Amendment claims appeared squarely foreclosed by Circuit
caselaw, noting that this court held in First Amendment
Coalition of Arizona, Inc. v. Ryan, 938 F.3d 1069, that
neither the First Amendment right of access to governmental
proceedings nor the right of access to courts entitled the
plaintiffs to information regarding execution drugs and
personnel. Nor did any of plaintiffs’ other ripe theories
appear viable. To the extent plaintiffs alleged that Idaho’s
execution protocol allows so much variance in execution
procedures that it violates the Equal Protection Clause, this
court had already rejected such a theory.
Concurring in part and dissenting in part, Judge Gould
concurred in Judge Bennett’s majority opinion insofar as it
held that Claim Three, part of Claim Four, part of Claim
Five, Claim Six, Claim Eight, Claim Nine, and the state law
claims of appellants’ complaint were moot. Judge Gould
also concurred in the judgment with respect to Pizzuto’s
appeal because a death warrant had issued. He respectfully
dissented, however, with respect to Creech’s appeal, and
would affirm the district court’s dismissal of his claims for
lack of ripeness. In Judge Gould’s view, the panel lacked
Article III jurisdiction to decide Creech’s appeal so long as
it was uncertain whether an execution would proceed and
generally how it was to proceed.
COUNSEL
Chelsea Dal Corso (argued), DLA Piper LLP (US), Los
Angeles, California; Stanley J. Panikowski, DLA Piper LLP
(US), San Diego, California; Amanda Laufer Camelotto,
DLA Piper LLP (US), Short Hills, New Jersey; Sarah E.
Kalman, DLA Piper LLP (US), Philadelphia, Pennsylvania;
Charles Peterson, Executive Director; Jonah J. Horwitz,

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6 PIZZUTO V. TEWALT
Christopher M. Sanchez, and Miles Pope, Assistant Federal
Defenders; Federal Defenders Services of Idaho, Boise,
Idaho; for Plaintiffs-Appellants.
Oscar Klaas (argued) and Mark A. Kubinski, Deputy
Attorneys General; Lawrence G. Wasden, Attorney General;
Idaho Department of Correction, Boise, Idaho; for
Defendants-Appellees.
OPINION
BENNETT, Circuit Judge:
Plaintiffs Gerald Pizzuto and Thomas Creech, two
prisoners on Idaho’s death row, seek information concerning
Idaho’s execution procedures. They do not in this action
claim that their execution will be unconstitutional; rather,
they claim that the deprivation of information itself
constitutes a violation of their constitutional and statutory
rights under 42 U.S.C. § 1983. The district court dismissed
all their claims as unripe. We have jurisdiction pursuant to
28 U.S.C. § 1291, and we reverse and remand.
I.
In 1985, Pizzuto robbed and killed Berta and Delbert
Herndon at a campground near the town of McCall, Idaho.
State v. Pizzuto, 810 P.2d 680, 686–87 (Idaho 1991),
overruled on other grounds by State v. Card, 825 P.2d 1081,
1088 (Idaho 1991). He was convicted of two counts of first-
degree murder and sentenced to death. Id. at 687. His
sentence was upheld on direct appeal in 1991. See id. at 716.
Creech was serving a life sentence for two counts of first-
degree murder at the Idaho State Correctional Institution
when he killed fellow inmate David Dale Jensen in 1981.

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PIZZUTO V. TEWALT 7
State v. Creech, 670 P.2d 463, 465 (Idaho 1983); see also
State v. Creech, 589 P.2d 114, 115 (Idaho 1979) (per
curiam). He pleaded guilty to first-degree murder for killing
Jensen and was sentenced to death. Creech, 670 P.2d at
465–66. This court ultimately granted habeas relief and the
case was remanded for resentencing. Creech v. Arave,
947 F.2d 873, 888 (9th Cir. 1991), rev’d in part by 507 U.S.
463 (1993). On remand, the trial court resentenced Creech
to death, and the death sentence was upheld by the Idaho
Supreme Court in 1998. See State v. Creech, 966 P.2d 1, 6,
23 (Idaho 1998).
Both Pizzuto and Creech are close to exhausting their
post-conviction appeals. On February 3, 2021, the Idaho
Supreme Court affirmed the denial of Pizzuto’s motion to
alter the judgment on his fifth petition for post-conviction
relief. Pizzuto v. State, — P.3d —, 2021 WL 358204 at *1
(Idaho Feb. 3, 2021).1 That decision will become final if
Pizzuto does not file a certiorari petition to the United States
Supreme Court or he files such a petition and it is resolved
in Idaho’s favor. Pizzuto has no pending federal post-
conviction proceedings,2 and this court affirmed the denial
of his most recent habeas petition in Pizzuto v. Yordy,
947 F.3d 510 (9th Cir. 2019) (per curiam), cert. denied
141 S. Ct. 661 (2020). See id. at 514. Creech filed a federal
habeas petition in 1999 that was denied by the district court.
Creech’s appeal is scheduled for argument before this court
1 On April 29, 2021, while this appeal was pending, the Idaho
Supreme Court denied Pizzuto’s petition for rehearing and issued a
remittitur.
2 Pizzuto has since filed an original habeas petition and an
application for a stay of execution in the United States Supreme Court.
That proceeding was initiated May 10, 2021, after the issuance of
Pizzuto’s death warrant.

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8 PIZZUTO V. TEWALT
in September 2021. At the time of this appeal, there was no
outstanding death warrant for either Pizzuto or Creech.3
In Idaho, lethal injection is the sole method of execution.
Idaho Code § 19-2716. The execution must take place no
more than thirty days after the issuance of a death warrant.
Id. § 19-2715(2). All other matters relating to execution
procedures, including the drugs to be used in the execution,
are delegated to the Director of the Idaho Department of
Correction (“IDOC”). Id. § 19-2716. Pursuant to this
authority, IDOC publishes an execution protocol called the
Standard Operating Procedure (“SOP”) that explains the
procedures and drugs the state will use. At the time Pizzuto
and Creech filed this lawsuit, the extant SOP (“SOP 135”)
had been last updated on January 6, 2012. Idaho’s last
execution took place on June 12, 2012.
In December 2018, Pizzuto and Creech’s attorneys wrote
to the Director seeking information related to IDOC’s
execution protocol. As relevant to this appeal, they sought
the following:
(1) the number, amount, and type of drugs to
be used, (2) how the drugs were made, how
the drugs were/would be obtained, their
source, amounts, expiration date, how they
were/would be acquired/transported/stored/t
ested, when IDOC would obtain the drugs,
etc., (3) whether/when a new version of SOP
135 would be issued . . . (4) whether
3 Idaho death warrants expire after thirty days, see Idaho Code § 19-
2715(2), and all prior death warrants have long expired. On May 6,
2021, following the Idaho Supreme Court’s remittitur, the Idaho district
court issued a death warrant for Pizzuto, with a scheduled execution date
of June 2, 2021.

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PIZZUTO V. TEWALT 9
witnesses would be able to observe the
insertion of the IVs [intravenous lines],
(5) procedures for IV placement/length,
(6) who would participate in the execution,
what was their training/qualifications, and
how would they be chosen, (7) whether there
would be a consciousness check and the
procedure for it, and (8) procedures for
botched executions.
Plaintiffs claim this information is essential to prevent a
botched execution. For example, they claim the type of drug
that will be used is important because “[t]here have been
significant questions raised about the efficacy of certain
drugs used in executions.” Pizzuto and Creech contend this
information is especially important to them as both have
significant health issues. Pizzuto has had multiple heart
attacks and is currently on several medications that would
render certain execution drugs ineffective. Creech suffers
from brain damage that may cause atypical reactions to
certain drugs, and he also takes various medications.
Plaintiffs claim the source of a drug also matters because
some execution drugs are obtained from compounding
pharmacies, which are more susceptible to error than FDA-
approved manufacturers. In addition, plaintiffs describe
several botched executions that resulted from human error.
Thus, they claim that it is critical they know the identities
and credentials of the personnel tasked with preparing and
injecting the execution drugs.
IDOC did not provide plaintiffs’ counsel with the
answers they sought, and instead directed them to SOP 135.
Unsatisfied, counsel arranged an in-person meeting with
IDOC in June 2019, from which counsel gathered that SOP
135 would be revised prior to any execution. Subsequent

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10 PIZZUTO V. TEWALT
communications between IDOC and plaintiffs’ counsel did
not result in counsel obtaining the information they wanted.
In late 2019, Pizzuto and Creech tried various administrative
channels to obtain further information about their
executions, but those attempts also proved unsuccessful.
Pizzuto and Creech then brought this § 1983 suit against
various IDOC officials, alleging multiple violations of their
rights. Their claims are: (1) the deprivation of execution-
related information violates their First and Fourteenth
Amendment rights to access government proceedings;
(2) the deprivation of execution-related information violates
their First Amendment right to petition the government for
redress of grievances; (3) the absence of a “real” execution
protocol constitutes cruel and unusual punishment in
violation of the Eighth Amendment; (4) the deprivation of
execution-related information violates their right to due
process under the Fourteenth Amendment; (5) the absence
of a “real” execution protocol (and, in the alternative, the
discretion vested in the Director by SOP 135) violates the
Equal Protection Clause; (6) the deprivation of execution-
related information violates their statutory right to counsel
under 18 U.S.C. § 3599; (7) the Director’s authority to issue
execution protocols is unconstitutional under various
provisions of the Idaho Constitution; (8) the Director’s
refusal to issue a revised SOP violates his obligations under
Idaho law; and (9) the deprivation of information creates a
substantial risk of serious harm, which violates the Eighth
Amendment. They seek to enjoin the executions until the
purported violations are remedied.
The district court dismissed plaintiffs’ claims without
prejudice, finding they were not ripe for adjudication. The
court reasoned that both Pizzuto and Creech had pending
post-conviction appeals, and thus “the ultimate question of

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PIZZUTO V. TEWALT 11
whether the two men will even be executed remains an
undetermined and open question.” Plaintiffs timely
appealed and sought expedited briefing, which we granted.
On March 30, 2021, while plaintiffs’ appeal was
pending, IDOC revised its execution protocol.4 The revised
SOP provides IDOC with four alternative methods of
execution.5 The first method is a three-drug protocol using
sodium pentothal, pancuronium bromide, and potassium
chloride. The second method is also a three-drug protocol,
but it replaces sodium pentothal with pentobarbital. The
other two methods are single-drug protocols, one using
sodium pentothal and the other using pentobarbital. The
method selected for an execution depends on the availability
of chemicals, but the SOP allows for “no deviation from the
procedures, protocols, and chemicals . . . without prior
consent from the Director.”
II.
We begin with a discussion of the ripeness framework
we apply. The ripeness doctrine is designed to “prevent the
courts, through avoidance of premature adjudication, from
entangling themselves in abstract disagreements.” Poland v.
Stewart, 117 F.3d 1094, 1104 (9th Cir. 1997) (citation
omitted). It contains both constitutional and prudential
4 The revised SOP is publicly available on IDOC’s website. See
http://forms.idoc.idaho.gov/WebLink/0/edoc/283090/Execution%20Pro
cedures.pdf. It consists of a document titled “Execution Procedures” that
incorporates by reference the “Execution Chemicals Preparation and
Administration” document, a witness agreement form, and a summary of
the procedures.
5 The four methods of execution have not changed significantly from
the 2012 version of the SOP.

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12 PIZZUTO V. TEWALT
aspects. See Reno v. Cath. Soc. Servs., Inc., 509 U.S. 43, 57
n.18 (1993) (“[The] ripeness doctrine is drawn both from
Article III limitations on judicial power and from prudential
reasons for refusing to exercise jurisdiction.”).
Constitutional ripeness requires that the case “present issues
that are definite and concrete” and “is often treated under the
rubric of standing because ripeness coincides squarely with
standing’s injury in fact prong.” Safer Chems., Healthy
Fams. v. EPA, 943 F.3d 397, 411 (9th Cir. 2019) (citation
omitted). Thus, “[w]here there is no danger of imminent and
certain injury to a party, an issue has not matured sufficiently
to warrant judicial intervention.” Poland, 117 F.3d at 1104
(quotation marks and citation omitted). Prudential ripeness
considers “the fitness of the issues for judicial review and
the hardship to the parties of withholding court
consideration.” Alaska Right to Life Pol. Action Comm. v.
Feldman, 504 F.3d 840, 849 (9th Cir. 2007) (citation
omitted).
The district court held that whether Pizzuto and Creech
would be executed at all was an “undetermined and open
question, rendering the claims in this case speculative and
abstract.” The court rested its decision solely on the fact that
both Pizzuto and Creech have ongoing post-conviction
litigation, the outcome of which remains uncertain. We
review de novo the district court’s dismissal for lack of
ripeness. Colwell v. Dep’t of Health & Hum. Servs.,
558 F.3d 1112, 1121 (9th Cir. 2009). We reject the district
court’s reasoning.
The district court’s bright-line rule effectively compels a
result that we have repeatedly and emphatically directed
plaintiffs to avoid. In the district court’s view, plaintiffs’
claims will become ripe only after their post-conviction
proceedings have concluded. At that time, the state will also

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PIZZUTO V. TEWALT 13
be able to issue a death warrant. See Harris v. Johnson,
376 F.3d 414, 417 (5th Cir. 2004) (per curiam) (“The denial
of certiorari [on a federal habeas petition] . . . entitle[s] the
state to set a date for, and proceed with, [plaintiff’s]
execution.”). Thus, plaintiffs will frequently be litigating
their claims within the small window of time after their death
warrants are signed and before their execution dates (which,
in Idaho, is thirty days). In situations like this, where
plaintiffs raise eleventh-hour challenges to their executions,
courts have routinely denied stays of execution because the
plaintiffs did not raise their claims earlier. See Gomez v.
U.S. Dist. Ct. for N. Dist. of Cal., 503 U.S. 653, 653–54
(1992) (per curiam); Cooper v. Rimmer, 379 F.3d 1029,
1032 & n.2 (9th Cir. 2004) (per curiam); McKenzie v. Day,
57 F.3d 1461, 1468 (9th Cir. 1995). That, of course,
suggests that the claims would have been ripe had they been
brought earlier. If we accepted the district court’s reasoning,
we would be presenting prisoners on death row an
unsolvable dilemma—if they file before post-conviction
litigation concludes, they are too early, and if they file after
post-conviction litigation ends and the death warrant issues,
they are too late. And so perhaps for that reason, we have
not applied the ripeness rule advanced by the district court
and have instead decided § 1983 claims similar to the ones
here on the merits, even though plaintiffs had pending post-
conviction proceedings. See, e.g., First Amend. Coal. of
Ariz., Inc. v. Ryan, 938 F.3d 1069, 1075–80 (9th Cir. 2019)
(deciding the claims of Charles Hedlund, who had pending
post-conviction appeals at the time, see Hedlund v. Arizona,
140 S. Ct. 1270 (2020) (mem.)).
Idaho alternatively contends that plaintiffs’ claims are
unripe because there is no current death warrant for either

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14 PIZZUTO V. TEWALT
Pizzuto or Creech.6 We agree that the issuance or lack of a
death warrant is important (perhaps crucial) to determining
ripeness in the context of other challenges to executions.
When a prisoner claims that his execution will violate the
Eighth Amendment because he is not competent to be
executed, that claim becomes “‘unquestionably ripe’ only
after it [is] clear that he ‘would have no federal habeas relief
for his conviction or his death sentence, and the Arizona
Supreme Court issue[s] a warrant for his execution.’”
Beardslee v. Woodford, 395 F.3d 1064, 1069 n.6 (9th Cir.
2005) (per curiam) (quoting Stewart v. Martinez-Villareal,
523 U.S. 637, 643 (1998)). But that is because a Ford claim
depends on the mental competence of the prisoner at the time
of his execution. See Ford v. Wainwright, 477 U.S. 399,
406–07 (1986); In re Campbell, 874 F.3d 454, 460 (6th Cir.
2017) (per curiam) (“Under [Ford], the road from sanity to
insanity ordinarily being a one-way street, a sentence of
death—although legally pronounced—cannot legally be
carried out.”). Without a death warrant or some other
indicator of the execution date, the court does not know what
the petitioner’s mental competence will be at the time of
execution, and any judgment it makes would be entirely
hypothetical. See Tompkins v. Sec’y, Dep’t of Corr.,
557 F.3d 1257, 1260 (11th Cir. 2009) (per curiam) (“[T]he
facts to be measured or proven [in a Ford claim]—the mental
state of the petitioner at the time of execution—do not and
cannot exist when the execution is years away.”). Thus, the
issuance of a death warrant is essential to the ripeness of a
Ford claim because only at that point does a Ford claim
6 Idaho raised this issue before the district court, but the court did
not reach it. At the time, there was no current death warrant for either
plaintiff. Idaho has since issued a death warrant for Pizzuto, but that
does not alter our analysis because we conclude that the ripeness of
plaintiffs’ claims does not depend on the issuance of a death warrant.

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PIZZUTO V. TEWALT 15
become concrete. Cf. Jones v. Kelley, 854 F.3d 1009, 1013
(8th Cir. 2017) (per curiam) (noting that the ripeness rule for
Ford claims “does not necessarily extend to all claims that
an inmate is unfit to be executed”).
Requiring a death warrant here would ignore Pizzuto and
Creech’s claims in this case. For example, they contend that
Idaho’s failure to provide them sufficient information now,
and failure to have a “real” execution protocol now, violates
their constitutional rights now. Those claims may be
meritless, but they are not unripe. Whether Idaho’s refusal
to respond to certain inquiries and supposed refusal to
promulgate a “real” execution protocol violate plaintiffs’
constitutional rights now is readily determinable now. At
argument, plaintiffs’ counsel agreed that the claims allege “a
constitutional right to know which path [the state is] going
to choose [to execute plaintiffs] right now as we speak.” A
court simply needs to examine the law to determine if
plaintiffs’ alleged rights exist and, if so, find the facts
necessary, if any, to determine if those rights have been
violated. Moreover, withholding judicial consideration at
this juncture would impose severe hardships on plaintiffs.
Pizzuto and Creech have been on death row for decades and
are near the end of their appellate and collateral proceedings.
The window of opportunity for them to seek information
about their execution is small and shrinking by the day.7
And although Idaho argues this case is unripe, we do not see
how the state will suffer hardship if the court decides
plaintiffs’ claims now. If anything, an earlier decision would
give the state an opportunity to address any deficiencies in
its revised SOP (assuming the plaintiffs’ claims have some
7 Withholding decision on their claims until a death warrant issues
would only narrow that window further—to the span of thirty days, or
less. See Idaho Code 19-2715(2).

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16 PIZZUTO V. TEWALT
merit) prior to issuing a death warrant—or would have given
such an opportunity in the case of Pizzuto. See supra n.3.
That is not to say death-row inmates can always ask the
court to review their claims challenging the state’s failure to
provide information. Inmates whose sentences only recently
became final might not face execution for decades, given the
lengthy nature of post-conviction proceedings that are
available to them. If a court were to decide claims at that
early stage, its decision would have little impact as the
inmates’ (and the state’s) circumstances evolved. However,
we need not decide today where to draw the line between
unripe and ripe claims for inmates who contend that the state
has violated their rights by withholding information.
Wherever that line is, Pizzuto and Creech’s claims are well
past the point of ripeness. Idaho acknowledges that both
plaintiffs are nearing the end of their post-conviction
appeals, has given no indication it intends to halt plaintiffs’
executions, and has recently issued a revised execution
protocol that will almost certainly govern their executions.
We find the presence of an extant execution protocol
here a particularly relevant marker for ripeness because
many of plaintiffs’ claims assert rights to execution-related
information, and the protocol is how Idaho has chosen to
convey such information to death-row inmates.8 Although
plaintiffs accurately state that this case is not a “method of
execution” case, the ripeness rule we apply in method of
8 Plaintiffs bring a variety of other claims, some asserting that the
absence of a protocol is a violation of their rights or that IDOC’s
authority to issue protocols is itself unconstitutional. Those claims are
clearly ripe whether or not Idaho has issued a revised protocol. However,
as plaintiffs’ counsel acknowledged at oral argument, plaintiffs’ most
important claims assert a right to information about how they will be
executed (under multiple theories).

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PIZZUTO V. TEWALT 17
execution cases is instructive. When a prisoner claims that
a particular method of execution constitutes cruel and
unusual punishment in violation of the Eighth Amendment,
that claim becomes ripe when the method is chosen. See
Beardslee, 395 F.3d at 1069 n.6 (citing LaGrand v. Stewart,
170 F.3d 1158, 1159 (9th Cir. 1999)). In Poland v. Stewart,
117 F.3d 1094, we held that a prisoner’s claim that execution
by lethal gas violated the Eighth Amendment would be ripe
only once the prisoner affirmatively chooses lethal gas as the
method of his execution, as opposed to the state’s default
method of execution by lethal injection. Id. at 1104. Absent
such a decision, the prisoner “does not currently face any
risk of execution by lethal gas and will face no hardship or
immediate or certain danger if we do not review his Eighth
Amendment lethal gas claim at this time.” Id. Likewise,
when plaintiffs claim that a state’s execution protocol
violates their rights to execution-related information, the
state’s decision to choose a protocol (the revised SOP)
strongly suggests the claim is ripe.9 At that point, the state
establishes how it will execute plaintiffs and how much
information it will provide plaintiffs, which the court can
then review. While it is true that the revised SOP may be
revised again, that concern applies to every government
policy or law, and the mere possibility that a protocol may
change is not enough to make plaintiffs’ claims unripe.10 See
Whitaker v. Collier, 862 F.3d 490, 493 (5th Cir. 2017)
(“[T]he current protocol is presumably the means that Texas
9 The protocol usually specifies the method of execution. We need
not decide whether Idaho’s provision of four alternative methods of
execution affects the ripeness of a method of execution claim, because
plaintiffs have not alleged a method of execution claim.
10 In Beardslee, we left open the question of how to determine
ripeness when the execution protocol is subject to change. 395 F.3d
at 1069 n.6.

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will select for their execution.” (quotation marks and citation
omitted)). Rather, there must be some indication that the
extant protocol will not be the protocol that governs
plaintiffs’ executions, and no such suggestion exists here.
However, we note that the absence of an extant protocol
is sometimes, but not always, helpful for determining
ripeness. We are wary of assigning dispositive weight to the
absence of an extant protocol, because to do so would
encourage states to withhold their protocols until the last
moment to minimize judicial scrutiny. Thus, there may be
instances where the lack of a protocol has little correlation
to the state’s intention to execute the plaintiff, and thus has
little bearing on ripeness. But in many situations, the
absence of a protocol simply suggests that the state does not
expect to imminently execute the plaintiff because it doesn’t
yet know how it plans to conduct the execution. In those
cases, it would be difficult and premature for a court to
decide whether the state’s nonexistent plan has violated any
of plaintiffs’ rights. See Payton v. Cullen, 658 F.3d 890, 893
(9th Cir. 2011) (dismissing as unripe plaintiffs’ challenge to
California’s execution protocol, because the extant protocol
had been judicially invalidated and no new protocol had
been issued); Andrews v. Davis, 944 F.3d 1092, 1122 n.16
(9th Cir. 2019) (en banc). Thus, it is possible that plaintiffs’
challenges to SOP 135 were unripe when first filed, because
IDOC had allegedly represented it would not proceed under
SOP 135 to execute plaintiffs and had not issued a
replacement protocol. But that is no longer the case.
Idaho acknowledges that both Pizzuto and Creech are
close to exhausting their post-conviction appeals and intends

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PIZZUTO V. TEWALT 19
to proceed with plaintiffs’ executions.11 Plaintiffs claim the
state’s refusal to provide certain information violates their
rights now. And the state has issued a revised execution
protocol, from which the court can readily determine now
whether plaintiffs’ alleged rights, if they exist, have been
violated. In these circumstances, plaintiffs’ claims are ripe.
III.
Given the unusual timeline of events in this case, we
must also consider mootness. “[W]e have an independent
obligation to address whether a case is moot because it goes
to the Article III jurisdiction of this court.” Council of Ins.
Agents & Brokers v. Molasky-Arman, 522 F.3d 925, 933 (9th
Cir. 2008). “A claim is moot when the issues presented are
no longer live or the parties lack a legally cognizable interest
in the outcome.” Id. (citation omitted). Dismissal on
mootness grounds is “justified only if it [is] absolutely clear
that the litigant no longer ha[s] any need of the judicial
protection that it sought.” Id. (citation omitted).
When plaintiffs initially filed suit, they did so with the
understanding that the extant protocol, SOP 135, would not
be used for their executions. Because Idaho had not issued
a revised SOP at that time, plaintiffs raised several claims
alleging that the lack of any execution protocol violated their
rights. Idaho has now issued a revised SOP, so we find these
claims moot. The injunctive relief that plaintiffs seek—
enjoinment of executions until IDOC issues a revised
protocol—is no longer necessary. In addition, we have no
basis to think that IDOC would create a situation where there
is no execution protocol in place for these plaintiffs. See Am.
11 Counsel for Idaho conceded at argument that plaintiffs’
executions are imminent.

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20 PIZZUTO V. TEWALT
Diabetes Ass’n v. U.S. Dep’t of the Army, 938 F.3d 1147,
1152 (9th Cir. 2019) (“Where the challenged conduct has
been sufficiently altered so as to present a substantially
different controversy . . . , there is no basis for concluding
that the challenged conduct [will be] repeated.” (cleaned
up)). Thus, the court’s resolution of plaintiffs’ claims
alleging that the lack of a protocol violates certain rights
would serve no legally cognizable purpose. See Ctr. for
Biological Diversity v. Lohn, 511 F.3d 960, 964 (9th Cir.
2007).
IV.
We now apply these principles of ripeness and mootness
to each of plaintiffs’ specific claims. Because “ripeness is
peculiarly a question of timing, it is the situation now rather
than the situation at the time of the [d]istrict [c]ourt’s
decision that must govern.” Blanchette v. Conn. Gen. Ins.
Corps., 419 U.S. 102, 140 (1974).
Claim One alleges that plaintiffs have an “enforceable
right of access to certain government proceedings and
records that is secured by the First and Fourteenth
Amendments,” and that IDOC has violated that right by
failing to provide them with execution-related information.12
12 This is the same set of information plaintiffs initially sought in
their December 2018 letter to the Director. Specifically, the information
concerns:
(1) the number, amount, and type of drugs to be used,
(2) how the drugs were made, how the drugs were/will
be obtained, their source, amounts, expiration date,
how they were acquired/transported/stored/tested,
when IDOC [will obtain] the drugs, etc., (3) when a
new version of SOP 135 will be issued, (4) whether

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PIZZUTO V. TEWALT 21
This claim is ripe.13 Plaintiffs argue that they have a First
Amendment right to execution-related information, which
IDOC is currently violating. Whether or not plaintiffs
possess such a right is a legal question, and whether such a
right (if it exists) has been violated depends on the content
of the revised SOP, which is now available. In Claim One,
plaintiffs also allege that the right of access to governmental
proceedings includes their lawyers’ “right to access the
execution chamber, the right to witness the entire execution
procedure, and the right to be permitted access to cameras
and phones during the execution.” Although this part of
Claim One is more in the nature of a pre-enforcement
challenge, we presume the revised SOP will govern
plaintiffs’ executions, so they will suffer certain injury if
their allegations are true. And because judicial resolution of
these allegations is possible now in light of the revised SOP,
we find this claim ripe.
Claim Two seeks much the same information as Claim
One, except under the theory that the deprivation of such
information “denies the plaintiffs’ First Amendment right to
petition the government for redress of grievances.”
Therefore, this claim is ripe for the same reason Claim One
is ripe: plaintiffs allege a current constitutional violation
witnesses will be able to observe the insertion of the
IVs, (5) procedures for IV placement/length, (6) who
will participate in the execution, what is their
training/qualifications, and how will they be chosen,
(7) whether there will be a consciousness check and
the procedure for it, and (8) procedures for botched
executions.
13 Of course, to the limited extent this claim seeks information about
“when a new version of SOP 135 will be issued,” we find that clearly
moot.

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22 PIZZUTO V. TEWALT
caused by the SOP’s lack of information, which is fit for
judicial resolution.
Claim Three alleges that the “absence of a real execution
protocol constitutes cruel and unusual punishment in
violation of the Eighth Amendment.” Plaintiffs base this
claim on the fact that “there is no IDOC protocol in place
mandating procedures that the defendants must follow when
carrying out an execution.” Because that factual allegation
is no longer true, and there is now a revised SOP, this claim
is moot.14
Claim Four alleges that Idaho’s “deprivation of
information violates the plaintiffs’ Fourteenth Amendment
right to due process.” Plaintiffs contend that the state has
denied them procedural due process by failing to provide
them “fair notice of the procedures to be used” in their
execution and that “the lack of information raises a
procedural barrier to challenging the constitutionality of
IDOC’s execution process.” For the most part, this claim
bases its due process violation on the absence of “fair
notice,” which we interpret to mean the lack of an execution
protocol. Therefore, we find this claim mostly moot because
plaintiffs are now on notice of the revised SOP and can
challenge its legality. However, to the extent Claim Four
asserts a due process violation premised on the SOP’s failure
to provide execution-related information, we find that claim
is ripe (and not moot). That is because the plaintiffs allege
the lack of information is itself the denial of due process. If
14 It may be possible to interpret Claim Three as alleging that the
SOP’s failure to provide the information that plaintiffs seek (as opposed
to the lack of an execution protocol at all) is itself cruel and unusual
punishment. That claim would be ripe for the same reasons that Claim
One and Claim Two are ripe.

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PIZZUTO V. TEWALT 23
the allegations are founded, then withholding decision of this
issue would continue to deny plaintiffs due process.
Claim Five alleges two different equal protection
violations. First, plaintiffs claim that the “absence of a real
execution protocol” violates the Equal Protection Clause,
because of “the variances [in] execution procedures that
invariably exist if no protocols are currently in place
whatsoever.” The revised SOP makes this portion of Claim
Five moot. Second, plaintiffs suggest that Idaho’s “practice
of essentially creating a new protocol for each condemned
inmate as soon as his execution is imminent” is itself an
equal protection violation. If so, this allegation is ripe
because whether Idaho’s practice of promulgating protocols
violates the Equal Protection Clause is already concrete and
fit for resolution.
Claim Six alleges that the “deprivation of information
violates the plaintiffs’ federal statutory right to the assistance
of counsel.” The relevant statute is 18 U.S.C. § 3599, which
entitles indigent death-row inmates to representation in post-
judgment proceedings and clemency petitions. See
18 U.S.C. § 3599(a). Plaintiffs claim they would seek
clemency if the execution protocol could cause an unduly
painful death, but they cannot do that if the state “tell[s] them
essentially nothing about those [execution] plans.” Thus, we
understand Claim Six to allege that the lack of an execution
protocol deprives plaintiffs of their statutory rights, in which
case the claim is moot.
Claim Seven alleges that the “absence of legislative
guidelines for executions violates the separation of powers
under the Idaho Constitution.” That is, plaintiffs contend
that the Director’s statutory authorization to determine the
procedures of executions is an unconstitutional delegation of
legislative power. Taking those allegations as true, plaintiffs

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24 PIZZUTO V. TEWALT
will certainly suffer injury if they are executed under an
unlawful delegation of power. Whether or not that
delegation is lawful is a question the court is well positioned
to answer now. Claim Seven is ripe.
Claim Eight alleges that “IDOC’s refusal to promulgate
a protocol violates its statutory obligations” under Idaho
Code § 19-2716. With the promulgation of the revised SOP,
this claim is moot.
Claim Nine alleges that the “deprivation of information
creates a substantial risk of serious harm in violation of the
Eighth Amendment.” This claim is difficult to comprehend
in its current form. We construe it to mean that the absence
of a protocol violates the Eighth Amendment, and with that
understanding, we find this claim moot.
In summary, we find Claim One, Claim Two, part of
Claim Four, part of Claim Five, and Claim Seven ripe. We
find the rest moot. In addition, we note that plaintiffs’ state
law claims suffer from an additional problem. “Unless there
is a breach of constitutional rights, . . . § 1983 does not
provide redress in federal court for violations of state law.”
Samson v. City of Bainbridge Island, 683 F.3d 1051, 1060
(9th Cir. 2012) (alteration in original) (citation omitted).
Plaintiffs allege their state law claims independent of any
federal constitutional violations, so § 1983 is not the
appropriate vehicle to bring those claims. Instead, the
plaintiffs asked the district court to exercise supplemental
jurisdiction over these state law claims. However, they
failed to so plead in their complaint. Thus, we presently lack
jurisdiction over plaintiffs’ state law claims for this
additional reason, although they may rectify this mistake by
amendment. See Heinsohn v. Carabin & Shaw, P.C.,
832 F.3d 224, 232–33 (5th Cir. 2016).

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PIZZUTO V. TEWALT 25
V.
There is no doubt that the merits of plaintiffs’ claims are
important and deserve speedy resolution. However, IDOC’s
decision to issue a revised SOP (on the eve of argument)
affects not only the ripeness of plaintiffs’ claims, but
potentially the substance of their claims as well. Thus, we
reverse and remand this case to the district court. On
remand, plaintiffs will likely seek (and should be permitted)
to amend their complaint to reallege their ripe claims against
the revised SOP and fix the flaws in their state law claims.
Plaintiffs, however, may be unable to amend their
complaint in a way that advances any colorable claims.15
Plaintiffs’ First Amendment claims appear squarely
foreclosed by our caselaw. In First Amendment Coalition of
Arizona, Inc. v. Ryan, 938 F.3d 1069, we held that neither
the First Amendment right of access to governmental
proceedings nor the right of access to courts “entitle[s] the
plaintiffs to information regarding execution drugs and
15 We feel it appropriate to discuss the merits now, in advance of
plaintiffs’ decision to amend their complaint on remand. As plaintiffs
have repeatedly argued to both the district court and on appeal, time is
particularly of the essence here. This urgency has only increased with
Idaho’s decision to issue, during the pendency of this appeal, first a
revised protocol and now a death warrant for Pizzuto. Further, the merits
of plaintiffs’ claims were briefed before the district court, and the merits
involve predominantly legal questions that do not require any
factfinding. Courts regularly discuss the merits of claims in considering
the futility of amendment, see Hooper v. Shinn, 985 F.3d 594, 622 (9th
Cir. 2021), or as part of an alternative holding, see Whitaker, 862 F.3d
at 496 & n.14. Here, our discussion of the merits of plaintiffs’ ripe
claims may inform how they choose to amend their complaint, and our
discussion of the moot claims provides alternative reasons why they fail.

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26 PIZZUTO V. TEWALT
personnel.” Id. at 1080–81.16 At argument, plaintiffs’
counsel suggested that First Amendment Coalition is
distinguishable because Pizzuto and Creech do not even
know what drug will be used in their execution. But that
distinction seems unlikely to matter given our reasoning in
First Amendment Coalition that “the First Amendment does
not mandate a right of access to government information or
sources of information within the government’s control.” Id.
at 1079 (cleaned up). Further, we note that Idaho’s revised
SOP permits only four methods of execution, with
significant overlap in the drugs used for each method. So
although plaintiffs might not know yet which of the four
methods the state may choose, they know the state is
restricted to a closed and limited universe of drugs, and they
know what those drugs are.
Plaintiffs additionally seek to extend the right of access
to governmental proceedings that we discussed in First
Amendment Coalition to include their counsel’s right to
access cameras and phones during the execution. See id.
at 1075. We find it implausible that the First Amendment
right of access to governmental proceedings gives the public
the right to videotape, photograph, or otherwise record those
proceedings. See Rice v. Kempker, 374 F.3d 675, 678–79
(8th Cir. 2004); Wis. Interscholastic Athletic Ass’n v.
Gannett Co., 658 F.3d 614, 627 (7th Cir. 2011). We are also
uncertain why the right of access to governmental
proceedings entitles plaintiffs’ counsel to have access to
16 Plaintiffs’ second claim is framed as a right to petition the
government for redress of grievances, but it primarily asserts a right of
access to the courts. See Soranno’s Gasco, Inc. v. Morgan, 874 F.2d
1310, 1314 (9th Cir. 1989) (“The right of access to the courts is
subsumed under the first amendment right to petition the government for
redress of grievances.”).

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PIZZUTO V. TEWALT 27
phones in the witness area. If plaintiffs wish their counsel to
have phones so that they can contact the court during
executions, that claim would be properly alleged under the
First Amendment right of access to courts. But see Arthur v.
Comm’r, Ala. Dep’t of Corr., 857 F.3d 1157, 1160 (11th Cir.
2017) (Hull, J., concurring in denial of rehearing en banc)
(“[T]his [c]ourt’s panel opinion emphasized that [plaintiff]
failed to cite any authority standing for the proposition that
visitors . . . have any independent constitutional right to
telephone access inside the execution viewing room.”).
It is true that in First Amendment Coalition we left open
the possibility that plaintiffs “may be able to assert a
procedural due process right to obtain the information they
seek.” 938 F.3d at 1080. But see Jones v. Comm’r, Ga.
Dep’t of Corr., 812 F.3d 923, 925–26 (11th Cir. 2016)
(Marcus, J., concurring in the denial of initial hearing en
banc) (finding inmates have no protected liberty interest in
disclosure of information about executions); Phillips v.
DeWine, 841 F.3d 405, 420 (6th Cir. 2016) (holding that “no
constitutional right exists to discover grievances”); Zink v.
Lombardi, 783 F.3d 1089, 1109 (8th Cir. 2015) (en banc)
(per curiam); Sepulvado v. Jindal, 729 F.3d 413, 418–20 (5th
Cir. 2013). Even if such a due process right exists, we find
it hard to imagine that it applies in this situation. Our due
process suggestion was prompted by a particular concern
with “Arizona’s checkered past with executions,” First
Amend. Coal., 938 F.3d at 1080, which included last-minute
changes to the protocol, an extraordinary degree of secrecy
during and after the execution, and a record of troubling
executions, see Lopez v. Brewer, 680 F.3d 1068, 1083 (9th
Cir. 2012) (Berzon, J., concurring in part and dissenting in
part). None of those circumstances exist here. Idaho has
issued an execution protocol well in advance of any death
warrant in this case, and there is no indication the state will

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28 PIZZUTO V. TEWALT
deviate from the procedures outlined in the revised SOP.
Those procedures provide for a relatively transparent
execution by, for example, ensuring that witness areas have
full access to the audio of the execution and requiring the
prison warden to “document every aspect of the execution
proceeding.” And although plaintiffs describe the unusual
process by which they claim Idaho has previously obtained
execution drugs, they have not alleged any facts that suggest
Idaho’s past executions caused unduly painful deaths.17
Nor do any of plaintiffs’ other ripe theories appear
viable. To the extent plaintiffs claim that Idaho’s execution
protocol allows so much variance in execution procedures
that it violates the Equal Protection Clause, we have already
rejected such a theory. In Towery v. Brewer, 672 F.3d 650
(9th Cir. 2012) (per curiam), we held that “[a]bsent any
pattern of generally exercising the discretion in a particular
manner while treating one individual differently and
detrimentally, there is no basis for Equal Protection scrutiny
under the class-of-one theory.” Id. at 660–61 (emphasis in
original). Plaintiffs allege only that they are being treated
differently, not that they are “being treated less favorably
than others generally are.” Id. at 661; see also Lopez,
680 F.3d at 1076. In addition, plaintiffs’ claim under the
Idaho Constitution has been soundly rejected by the Idaho
Supreme Court, which held that the Director’s authorization
to promulgate execution procedures is not an improper
17 Of course, Idaho will continue to be bound by not only “its
constitutional obligation to ensure that the implementation of its new
protocol does not run afoul of the Eighth Amendment’s proscription of
cruel and unusual punishment, but also . . . its moral obligation to carry
out executions with the degree of seriousness and respect that the state-
administered termination of human life demands.” Jackson v. Danberg,
594 F.3d 210, 230 (3d Cir. 2010).

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PIZZUTO V. TEWALT 29
delegation of legislative power. State v. Osborn, 631 P.2d
187, 201 (Idaho 1981).18
Finally, although we dismiss several of plaintiffs’ claims
as moot, we note that those claims also rested on implausible
theories. We have never suggested the Eighth Amendment
imposes an affirmative obligation on the state to issue
execution protocols. Cf. Payton, 658 F.3d at 893 (dismissing
Eighth Amendment claim in the absence of any protocol as
unripe). After all, it is hard to imagine how the lack of a
protocol is cruel and unusual punishment. Cf. Smith v.
Mahoney, 611 F.3d 978, 998 (9th Cir. 2010) (rejecting a
Lackey claim alleging that prolonged time on death row
constitutes cruel and unusual punishment). Nor have we
located such an obligation in the Equal Protection Clause.
Plaintiffs suggest such a right might be found in 18 U.S.C.
§ 3599, but that statute does not “empower the court to order
third-party compliance” to aid plaintiff’s counsel in seeking
clemency. Leavitt v. Arave, 682 F.3d 1138, 1141 (9th Cir.
2012) (per curiam). And although Idaho Code § 19-2716
provides that the Director “shall determine the procedures to
be used in any execution,” we do not read that provision as
requiring the Director to always maintain an extant
execution protocol.
18 In Osborn, the Idaho Supreme Court considered the 1978 version
of Idaho Code § 19-2716. That version was identical in all relevant
respects to the present statute—it prescribed lethal injection and gave the
Director the authority to “determine the substance or substances to be
used and the procedures to be used in any execution.” 1978 Idaho Sess.
Laws 140. In 1982, the Idaho legislature amended § 19-2716 to permit
the Director to conduct executions by firing squad, but that amendment
was repealed in 2009, leaving lethal injection as the sole method of
execution. See 2009 Idaho Sess. Laws 228.

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30 PIZZUTO V. TEWALT
That said, we emphasize that our view of the merits of
plaintiffs’ theories has no bearing on the ripeness of their
claims. Ripeness is simply a question of “when.” For the
mooted claims, it is too late, but for the remaining claims,
the time for judicial resolution is now.
REVERSED and REMANDED.
GOULD, Circuit Judge, concurring in part, and dissenting in
part:
I concur in Judge Bennett’s majority opinion insofar as
it holds that Claim Three, part of Claim Four, part of Claim
Five, Claim Six, Claim Eight, Claim Nine, and the state law
claims of Appellants’ complaint are moot.1 I also concur in
the judgment with respect to Pizzuto’s appeal because a
death warrant has issued. I respectfully dissent, however,
with respect to Creech’s appeal, and would affirm the district
court’s dismissal of his claims for lack of ripeness. As the
district court explained, appellants Pizzuto and Creech “do
not dispute the constitutionality of lethal injection execution
or the legitimacy of their sentences.” Both of them are, of
course, entitled to fair procedure in accord with law, and if
they want to challenge the method of execution, they should
have a reasonable time to make their challenge after the State
of Idaho has decided to proceed with execution. But in my
view, we lack Article III jurisdiction to decide Creech’s
1 I also agree with the Majority that we lack jurisdiction over
Plaintiffs’ state law claims for the additional reason that Plaintiffs failed
to plead a basis for jurisdiction in their complaint.

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PIZZUTO V. TEWALT 31
appeal so long as it is uncertain whether an execution will
proceed and generally how it is to proceed.
The ripeness doctrine is “drawn both from Article III
limitations on judicial power and from prudential reasons for
refusing to exercise jurisdiction.” Reno v. Cath. Soc. Servs.,
Inc., 509 U.S. 43, 57 n.18 (1993). It is designed “to separate
matters that are premature for review because the injury is
speculative and may never occur from those cases that are
appropriate for federal court action.” Portman v. County of
Santa Clara, 995 F.2d 898, 902 (9th Cir. 1993) (internal
quotation marks omitted). “[T]hrough avoidance of
premature adjudication,” the doctrine prevents courts “from
entangling themselves in abstract disagreements.” Abbott
Lab’ys v. Gardner, 387 U.S. 136, 148 (1967), abrogated on
other grounds by Califano v. Sanders, 430 U.S. 99, 97
(1977).
I agree with the district court reasoning as to the lack of
ripeness when the district court made its decision, for the
following reasons: First, standing is a “threshold question”
and is “a necessary element of federal-court jurisdiction.”
City of South Lake Tahoe v. Cal. Tahoe Reg’l Planning
Agency, 625 F.2d 231, 233 (9th Cir. 1980). Second,
“[c]onstitutional ripeness is often treated under the rubric of
standing because ripeness coincides squarely with
standing’s injury in fact prong.” Safer Chemicals, Healthy
Families v. EPA, 943 F.3d 397, 411 (9th Cir. 2019) (citation
omitted). Third, because Creech seeks information
regarding an execution that is entirely presupposed, deciding
his claims at this stage would be premature. I further agree
with the district court that when the State of Idaho moved to
dismiss Appellees’ complaint, “[t]he ultimate question of
whether the two men will even be executed remain[ed] an
undetermined and open question.”

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32 PIZZUTO V. TEWALT
Since then, of course, Pizutto’s death warrant has issued,
and the majority correctly allows his claims to proceed. But
nothing has changed with respect to Creech’s appeal. He
may, for instance, obtain appellate relief in his other pending
cases. Idaho’s governor may decide to grant clemency; its
legislature could intervene to avoid a death warrant.
Creech’s execution is far from a foregone conclusion. His
claims are still not yet ripe.
Our court would do well to follow the rule stated by the
Supreme Court in Texas v. United States: “A claim is not
ripe for adjudication if it rests upon contingent future events
that may not occur as anticipated, or indeed may not occur
at all.” 523 U.S. 296, 300 (1998) (cleaned up). The lack of
ripeness practically means that Creech’s claims were
brought too soon for us to decide them and that they were
properly dismissed without prejudice—although they could
be advanced later when the case is ripe.
As for when the claims for information will become ripe,
I do not agree with all of the district court’s rationale insofar
as the district court thought the case could not be ripe until
all appeals had been fully resolved. The reason that I cannot
agree with this is that in a system of federalism where the
State of Idaho controls its procedures, nothing would
guarantee that the State would not commence planning an
implementation of the death penalty execution while some
appellate issue remained pending. So that rationale in my
view went too far.
But on the other hand, it cannot be fairly said that
execution is certain to proceed before the State of Idaho
issues a death warrant. That is the key point before which
execution cannot proceed, though after it issues, many tasks
are to be accomplished by certain times. Among these is a
specific requirement that between thirty and twenty-one

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PIZZUTO V. TEWALT 33
days before the execution, the State of Idaho’s
Administrative Team must “[e]nsure that execution
chemicals have been purchased or that sources have been
established.” Under this procedure, there will always be at
least three weeks before execution when the State of Idaho
could give notice to the prisoner and the prisoner’s counsel
of record about the chemicals purchased or planned for in
the execution. To be sure, twenty-one days is not a long time
for counsel to evaluate their potential claims and to get the
matter of any federal constitutional claim before a federal
court. But given the ability of courts to issue restraining
orders ex parte or grant preliminary injunctions after giving
notice to the state and an opportunity to be heard, and given
the ability of courts to decide matters upon expedited or
emergency motions, it seems to me that there is no reason
any challenge to the specific execution plans could not be
fairly asserted within twenty-one days after chemicals were
ordered or planned for use with sources established. That is
a tight deadline for legal action, but in my view, both Article
III and the Supreme Court’s precedent demand it. A federal
court request for information about execution procedures
cannot properly proceed before Idaho has made its ultimate
decision by issuing a death warrant and serving it upon the
Idaho Department of Correction.2
Even if the rationale chosen by the district court was not
entirely correct in all of its details, I believe the district court
was correct that the case was unripe because of
2 If the State of Idaho wants to avoid the risk of last minute potential
stays of execution and necessary changes of plans, with all the stress that
creates for all persons concerned, the condemned prisoners along with
their families and the Governor of Idaho and the Director of the Idaho
Department of Correction, along with their staff, then it would be prudent
for the Idaho Department of Correction to provide notice at the earliest
feasible opportunity of the planned chemical usage for execution.

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34 PIZZUTO V. TEWALT
contingencies that could occur avoiding the presupposed
execution. As the district court correctly observed, it is not
our proper province to predict how other courts will decide
issues pending before them, much less do we have any basis
to predict how the Governor or legislature of the State of
Idaho may decide any issue placed before them. A court
could grant relief, a legislature could alter its law, or the
Governor could decide to exercise his discretionary power
of clemency. In my view, it does not make sense in capital
cases to proceed to examine method of execution before
there has been a death warrant, which crystalizes the
immediacy of planned and lawful execution.
By interceding at this point, the majority risks the
possibility that its rationale would only lead the State into a
more entrenched position that would, as a practical matter,
make legislative action or clemency from the Governor less
likely. Given the experience in several other states where
Governors put death penalties on hold pending more study
or proceedings, I don’t share the majority’s seeming
certainty that the death penalty will proceed.
Under our precedent, we may affirm on any ground
supported by the record. McQuillion v. Schwarzenegger,
369 F.3d 1091, 1096 (9th Cir. 2004). I would exercise our
discretion to affirm in part the dismissal of Creech’s claims
based on the record showing there has been no death warrant
issued, while at the same time through our supervisory
power suggest that the State give notice of its planned
procedure at the earliest practical time not later than twenty-
one days before the date of the scheduled execution.
That is not a perfect solution, but there will never be a
perfect solution in a case where the ultimate penalty of death
is to be administered and prisoners or their family or friends
still have any question about guilt, propriety of sentence, or

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PIZZUTO V. TEWALT 35
method of execution. To me the most sensible approach here
is to preclude suit until a death warrant issues, if that occurs,
and then to use expedited judicial procedures to gain a final
ruling ahead of the planned execution date and time. For that
reason, I agree with the majority’s conclusion that Claim
One, Claim Two, part of Claim Four, part of Claim Five, and
Claim Seven are ripe with respect to Pizzuto, for whom the
State of Idaho has issued a death warrant. But because the
State has not yet issued a death warrant for Creech, I cannot
join my colleagues in concluding that any of his claims are
ripe.
Also, it should not be considered that proceeding with a
lawsuit seeking information about execution procedure
before a death warrant issues has no cost to parties or the
State. The State of Idaho will have to marshal its legal
resources at significant cost to respond to any complaint
filed at this stage before a death warrant issues. There is also
a cost to the federal court system, at expense of federal
taxpayers, when the federal court system needs to address
lawsuits requesting information about death penalty
procedures before a death warrant issues.
It is perhaps correct that the legal standard for ripeness
does not require absolute certainty, but only a reasonable
probability that the execution will occur. But still, to
proceed before a death warrant is to put the cart before the
horse, and it may be an impediment to actions by the
legislature or the Governor that could avoid death. As I have
said, awaiting a death warrant is not a perfect solution, but
in my view, it is a superior procedure to proceeding at this
stage with litigation about a presupposed execution, and I am
not aware of any Supreme Court precedent that would
preclude our court upon an en banc rehearing from adopting
the view of ripeness that I have suggested.

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