Thomas E. Creech v. JOSH TEWALT, Director, Idaho Department of Correction

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS E. CREECH,
Petitioner-Appellant,
v.
JOSH TEWALT, Director, Idaho
Department of Correction; TIM
RICHARDSON, Warden, Idaho
Maximum Security Institution;
CHAD PAGE, Chief, Division of
Prisons, Idaho Department of
Correction, in his official capacity;
and UNKNOWN EMPLOYEES,
AGENTS, OR CONTRACTORS OF
THE IDAHO DEPARTMENT OF
CORRECTION,
Respondents-Appellees.
No. 24-978
D.C. No.
1:20-cv-00114-
AKB
OPINION
Appeal from the United States District Court
for the District of Idaho
Amanda K. Brailsford, District Judge, Presiding
Submitted February 23, 2024
San Francisco, California

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2 CREECH V. TEWALT
Filed February 24, 2024
Before: William A. Fletcher, Jay S. Bybee, and Morgan
Christen, Circuit Judges.
Per Curiam Opinion
SUMMARY*
Death Penalty/Method of Execution
The panel affirmed the district court’s denial of Idaho
death row inmate Thomas Eugene Creech’s request for
preliminary injunctive relief raising constitutional claims
concerning his method of execution, scheduled for February
28, 2024.
The panel held that the district court did not abuse its
discretion in concluding that Creech was unlikely to succeed
on the merits of his two due process claims. Creech asserted
the State failed to provide sufficient information about the
source of its lethal injection drug. He also challenged the
execution protocol.
The panel agreed with the district court that the State had
adequately disclosed the planned method of execution and
that Creech was unlikely to succeed on his claim that due
process additionally requires the State to disclose the source
of the drug. Creech’s arguments about the provenance,
* 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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CREECH V. TEWALT 3
quality, and reliability of the drug were purely speculative
and were based on unauthenticated exhibits submitted with
his motion and the conjecture of his expert. The panel
further held that the district court correctly found that
Standard Operating Procedure 135.02.01.001 is the
applicable protocol for Creech’s execution by lethal
injection and that the State has been and is presently
following this protocol.
The panel also affirmed the dismissal of Creech’s other
Eighth Amendment claims because (1) he refused to identify
an alternative method of execution; (2) he did not have any
known conditions that would create a substantial risk of
severe pain or needless suffering; (3) pursuant to Supreme
Court authority, there is no requirement that an
anesthesiologist administer the drug or that a brain monitor
be used; and (4) he failed to show why the medical team’s
ability to observe the execution through a real-time video
feed, rather than a window, was inadequate.
Because Creech had not made a clear showing of a
likelihood of success on the merits of his claims and because
the balance of equities and the public interest weighed
against granting a preliminary injunction, the district court
did not abuse its discretion in denying Creech’s request for
preliminary injunctive relief.

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4 CREECH V. TEWALT
COUNSEL
Mary E. Spears, Assistant Federal Public Defender; Deborah
A. Czuba, Federal Public Defender; Nicole Owens,
Executive Director; Federal Defender Services of Idaho,
Boise, Idaho; for Plaintiff-Appellant.
Tanner J. Smith and Michael J. Elia, Moore Elia & Kraft
LLP, Boise, Idaho; Mark Kubinski, Deputy Assistant
Attorney General, Idaho Division of Occupational &
Professional Licenses General Counsel, Boise, Idaho;
Kristina M. Schindele, Acting Assistant Attorney General;
Mary K. Magnelli, Lead Deputy Attorney General; Raul
Labrador, Idaho Attorney General; Idaho Attorney
General’s Office, Boise, Idaho; for Defendants-Appellees.
OPINION
PER CURIAM:
Petitioner-Appellant Thomas Eugene Creech, a death
row inmate in the custody of the Idaho Department of
Correction (IDOC), appeals the denial of his motion for a
preliminary injunction in this 42 U.S.C. § 1983 action
raising constitutional claims concerning his method of
execution. His execution is currently scheduled for February
28, 2024.
In 1981, while serving life sentences in Idaho for
multiple first-degree murders, Creech killed a fellow
prisoner and was sentenced to death. The circumstances of
the killing and Creech’s previous post-conviction

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CREECH V. TEWALT 5
proceedings are discussed in our opinion in Creech v.
Richardson, 59 F.4th 372 (9th Cir. 2023).
On February 23, 2024, the district court denied Creech’s
motion for preliminary injunctive relief on the grounds that
Creech had not made a clear showing of a likelihood of
success on the merits of any of his three constitutional claims
concerning the protocol and method of his execution, and
that the balance of equities and the public interest weigh
against granting a preliminary injunction. See Winter v. Nat.
Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).1
We have appellate jurisdiction to review the denial of a
preliminary injunction under 28 U.S.C. § 1292(a)(1). We
review the denial of a preliminary injunction for abuse of
discretion. See Harris v. Bd. of Supervisors, 366 F.3d 754,
760 (9th Cir. 2004). “The district court’s interpretation of
the underlying legal principles, however, is subject to de
novo review and a district court abuses its discretion when it
makes an error of law.” Sw. Voter Registration Educ.
Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en
banc). “A district court abuses its discretion if it (1) relies
on an improper factor, (2) omits a substantial factor, or
(3) commits a clear error of judgment in weighing the correct
mix of factors.” Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d
952, 956 (9th Cir. 2013). “We review the district court’s
findings of fact under the clearly erroneous standard,
meaning we will reverse them only if they are (1) illogical,
(2) implausible, or (3) without support in inferences that
1 The district court also denied Creech’s request for an administrative
stay. Creech does not separately appeal that ruling but, in any case, we
find no error in the order denying an administrative stay.

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6 CREECH V. TEWALT
may be drawn from the record.” Id. (internal quotation
marks and citation omitted). We affirm.
The district court did not abuse its discretion in
concluding that Creech is unlikely to succeed on the merits
of his two due process claims. On appeal, Creech repeats his
argument that the State failed to provide sufficient
information about the source of its lethal injection drug,
pentobarbital. More specifically, Creech raises the
possibility that the State might have obtained the drug from
Akorn, a pharmaceutical company that went out of business
in February 2023 and subsequently recalled its product.
Creech also suggests the possibility that the pentobarbital
might have originated from other unreliable sources.
Though several of Creech’s arguments originally were
premised on his contention that the State had not informed
him of its intended method of execution, he now concedes
that IDOC intends to execute him by using manufactured,
rather than compounded, pentobarbital. The district court
found that IDOC provided Creech’s counsel with a
Certificate of Analysis verifying that the pentobarbital in its
possession complies with regulatory and quality standards
and that it has a February 2025 expiration date. We agree
with the district court that the State has adequately disclosed
the planned method of execution and that Creech is unlikely
to succeed on his claim that due process additionally requires
the State to disclose the source of the drug. Creech’s other
arguments about the provenance, quality, and reliability of
the drug are purely speculative and are based on
unauthenticated exhibits submitted with his motion and the
conjecture of his expert.
Creech’s other due process claim concerns the execution
protocol. The district court correctly found that Standard

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CREECH V. TEWALT 7
Operating Procedure 135.02.01.001 is the applicable
protocol for his execution by lethal injection and that the
State has been and is presently following this protocol. That
the protocol does not address execution by firing squad is
immaterial, because that method will not be used for
Creech’s execution.
Creech also challenges his execution on Eighth
Amendment grounds. The district court did not abuse its
discretion in ruling that Creech was unlikely to succeed on
this claim. To challenge an execution method under the
Eighth Amendment, a plaintiff must establish that his
method of execution presents a risk that is “sure or very
likely to cause serious illness and needless suffering” and to
give rise to “sufficiently imminent dangers.” Glossip v.
Gross, 576 U.S. 863, 877 (2015) (internal quotations
omitted) (emphasis omitted). The Supreme Court requires
that the plaintiff then show “a feasible and readily
implemented alternative method of execution that would
significantly reduce a substantial risk of severe pain and that
the State has refused to adopt [the alternative method]
without a legitimate penological reason.” Bucklew v.
Precythe, 139 S. Ct. 1112, 1125 (2019).
First, the district court correctly concluded that Creech’s
Eighth Amendment claim fails as a matter of law because he
has refused to identify an alternative method of execution.
See id. Second, as with his due process arguments, Creech’s
Eighth Amendment claims rely largely on suppositions that
he could be at risk of suffering unnecessary pain if he were
to have certain medical conditions. Creech requested a
medical examination to determine whether he suffers from
any of these pre-existing conditions, which the district court
denied. We find no error in the district court ruling, as
Creech acknowledges he does not have any known

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8 CREECH V. TEWALT
conditions that create a substantial risk of severe pain or
needless suffering. See Glossip, 576 U.S. at 877. Creech’s
argument that the protocol is deficient because it does not
require an anesthesiologist to administer the drug is squarely
foreclosed by Supreme Court precedent, see Baze v. Rees,
553 U.S. 35, 59 (2008), which also recognizes that a brain
monitor is not required. Finally, Creech has failed to show
why the medical team’s ability to observe the execution
through a real-time video feed, rather than a window, is
inadequate.
The district court found that Creech made a clear
showing that he will suffer irreparable harm if his request for
a preliminary injunction is not granted. The district court
also recognized that the State has a strong interest in the
finality of its judgments. The district court correctly
concluded that the balance of equities and the public interest
do not weigh in Creech’s favor.
Because Creech has not made a clear showing of a
likelihood of success on the merits of his claims and because
the balance of equities and the public interest weigh against
granting a preliminary injunction, the district court did not
abuse its discretion in denying Creech’s request for
preliminary injunctive relief.
AFFIRMED.

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