Frank Jarvis Atwood v. DAVID SHINN , Director, Arizona Department of Corrections, Rehabilitation & Reentry

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANK J ARVIS ATWOOD ,
Plaintiff-Appellant,
v.
DAVID SHINN , Director, Arizona
Department of Corrections,
Rehabilitation & Reentry; J AMES
KIMBLE , Warden, ASPC-Eyman;
J EFFREY VAN W INKLE , Warden,
ASPC-Florence; LANCE HETMER,
Assistant Director for Prison
Operations, Arizona Department of
Corrections, Rehabilitation &
Reentry; MARK B RNOVICH, Attorney
General, Attorney General of
Arizona; UNKNOWN PARTY, Named
as John Doe - Arizona-Licensed
Pharmacist,
Defendants-Appellees.
No. 22-15821
D.C. No.
2:22-cv-00860-
MTL-JZB
OPINION
Appeal from the United States District Court
for the District of Arizona
Michael T. Liburdi, District Judge, Presiding
Argued and Submitted June 6, 2022
San Francisco, California

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2 ATWOOD V . SHINN
Filed June 7, 2022
Before: M. Margaret McKeown, Consuelo M. Callahan,
and Sandra S. Ikuta, Circuit Judges.
Per Curiam Opinion
SUMMARY*
Civil Rights/Death Penalty
The panel denied Frank Atwood’s motions for a stay of
execution, which is scheduled for Wednesday, June 8, 2022.
Atwood sued various Arizona Department of
Corrections, Rehabilitation & Reentry (“ADCRR”) officials
and the Arizona Attorney General, Mark Brnovich,
(collectively “Defendants”) challenging Defendants’
proposed protocol for his execution. Atwood alleged that he
is wheelchair-bound from a degenerative spinal disease and
that ADCRR’s lethal injection protocol, which requires that
he be secured lying down on the execution table for a period
of time prior to the administration of lethal drugs, will cause
him excruciating and unnecessary pain. He further alleged
that ADCRR’s Execution Protocol amounted to a state-
created liberty interest; that Defendants have disregarded the
Protocol’s requirements in violation of his due process
rights; and that he was deprived of his state law liberty
interest in choosing the manner of his execution because
* 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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ATWOOD V . SHINN 3
Arizona failed to provide a constitutional choice of lethal gas
as a method of execution.
The district court denied Atwood’s motion for a
preliminary injunction and Atwood appealed and filed two
motions to stay his execution. The panel held that on this
record, the district court did not commit clear error by
determining that the Execution Protocol, as modified with
Defendants’ proposed accommodations, did not create a
substantial risk of severe pain due to Atwood’s spinal
disease.
The panel denied Atwood’s motions seeking to stay his
execution because: (1) the panel deferred to the district
court’s finding that Defendants’ accommodations for
Atwood’s degenerative spinal disease precluded a finding
that their lethal injection protocol created a substantial risk
of severe pain; (2) even assuming without deciding that
Defendants’ Execution Protocol may give rise to a liberty
interest, there was insufficient evidence that Atwood’s due
process rights were violated; and (3) given that Defendants
shall execute Atwood by lethal injection, he lacked standing
to challenge Defendants’ protocol for execution by lethal
gas.
COUNSEL
Joseph J. Perkovich (argued), Phillips Black Inc., New York,
New York; Amy P. Knight, Knight Law Firm PC, Tucson,
Arizona; for Plaintiff-Appellant.
Jeffrey L. Sparks (argued), Section Chief of Capital
Litigation; Laura P. Chiasson and Ginger Jarvis, Assistant
Attorneys General, Capital Litigation Section; Mark

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4 ATWOOD V . SHINN
Brnovich, Attorney General; Office of the Attorney General,
Phoenix, Arizona; for Defendants-Appellees.
Emily Skinner, Arizona Capital Representation Project,
Phoenix, Arizona; Jared G. Keenan, ACLU Foundation of
Arizona, Phoenix, Arizona; Brian W. Stull, American Civil
Liberties Union, Durham, North Carolina; for Amici Curiae
ACLU Capital Punishment Project, ACLU Foundation of
Arizona, and Arizona Capital Representation Project.
OPINION
PER CURIAM:
Frank Atwood is scheduled to be executed in Arizona on
Wednesday, June 8, 2022. On May 19, 2022, he sued various
Arizona Department of Corrections, Rehabilitation &
Reentry (“ADCRR”) officials and the Arizona Attorney
General, Mark Brnovich, (collectively “Defendants”)
challenging Defendants’ proposed protocol for his
execution. Atwood filed a motion for a preliminary
injunction prohibiting his execution until such time as
Defendants can assure the district court that his execution
would comply with various federal statutes and the Sixth,
Eighth, and Fourteenth Amendments to the United States
Constitution. The district court denied the motion for a
preliminary injunction and Atwood has appealed and filed
two motions to stay his execution. We deny the motions
because: (1) we defer to the district court’s finding that
Defendants’ accommodations for Atwood’s degenerative
spinal disease preclude a finding that their lethal injection
protocol creates a substantial risk of severe pain; (2) even
assuming without deciding that Defendants’ Execution
Protocol may give rise to a liberty interest, there is

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ATWOOD V . SHINN 5
insufficient evidence that Atwood’s due process rights were
violated; and (3) given that Defendants shall execute
Atwood by lethal injection, he lacks standing to challenge
Defendants’ protocol for execution by lethal gas.
I
“A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his
favor, and that an injunction is in the public interest.”
Glossip v. Gross, 576 U.S. 863, 876 (2015) (quoting Winter
v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). The
burden of persuasion is on the movant, who must make a
“clear showing.” Mazurek v. Armstrong, 520 U.S. 968, 972
(1997) (per curiam) (emphasis removed).
We review a denial of a request for a preliminary
injunction for an abuse of discretion, Am. Hotel v. Lodging
Ass’n v. City of L.A., 834 F.3d 958, 962 (9th Cir. 2016), and
dismissal of a claim for lack of standing de novo, Barrus v.
Sylvania, 55 F.3d 468, 469 (9th Cir. 1995). We review the
district court’s factual determinations for clear error. Edmo
v. Corizon, Inc., 935 F.3d 757, 784 (9th Cir. 2019).
II
Atwood alleges that he is wheelchair-bound from a
degenerative spinal disease and experiences “intense and
profoundly debilitating pain along his spine as a
consequence of chronic degeneration of vertebral bodies”
that have “caused multiple compressions of the nerve roots
as they pass from the spinal cord to the arms and legs,” which
“has resulted in permanent damage that manifests as
profound weakness and unremitting pain.” To minimize the

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6 ATWOOD V . SHINN
pain, Atwood maintains a seated position in his wheelchair
and partially reclines with one leg bent when he attempts to
sleep. He asserts that lying flat on his back exacerbates his
conditions, causing severe pain. Atwood alleges that
ADCRR’s lethal injection protocol requires that he be
secured lying down on the execution table for a period of
time prior to the administration of lethal drugs and that this
will cause him excruciating and unnecessary pain.
Defendants do not dispute that Atwood has a
degenerative spinal disease that causes him significant pain.
Before the district court, Defendants provided photographs
showing Atwood resting in his cell on his bed propped up by
pillows and blankets. Defendants stated they will make
accommodations in their Execution Protocol by providing
Atwood a medical wedge and tilting the execution table,
which will put Atwood in a position similar to the position
he assumes in his cell and thus avoid any unnecessary pain
due to his condition.1
The district court denied Atwood relief on this claim.
Citing Baze v. Rees, 553 U.S. 35 (2008), and Glossip v.
Gross, 576 U.S. 863 (2015), the district court held that the
Eighth Amendment does not guarantee a prisoner a painless
death and that a defendant’s Eighth Amendment rights are
impinged only when the risk of potential pain is “substantial
when compared to a known and available alternative.” The
district court further recognized that a state’s choice of
execution procedures is entitled to a measure of deference.
The district court found that the accommodations that
Defendants proposed “preclude a finding that ADCRR’s
lethal injection protocol creates a substantial risk of severe
1 On appeal Arizona offered to permit Atwood to bend a knee during
the execution, but at oral argument Atwood’s counsel rejected that offer.

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ATWOOD V . SHINN 7
pain.” It determined that “[t]here is no evidence that the
position Plaintiff will be in using the medical wedge will be
substantially different from the position he assumes in his
cell.”
In Glossip, the Supreme Court held “that prisoners
cannot successfully challenge a method of execution unless
they establish that the method presents a risk that is ‘sure or
very likely to cause serious illness and needless suffering,
and give rise to sufficiently imminent dangers.’” Glossip,
576 U.S. at 877 (quoting Baze, 553 U.S. at 50 (plurality
opinion)). On this record we hold that the district court did
not commit clear error by determining that the Execution
Protocol, as modified with these accommodations, does not
create a substantial risk of severe pain due to Atwood’s
spinal disease.
III
ADCRR’s Execution Protocol provides that Defendants
“will only use chemicals in an execution that have an
expiration or beyond-use date that is after the date that an
execution is carried out.” The Execution Protocol also
authorizes prisoners subject to a warrant of execution to
request and receive a “quantitative analysis of any
compounded or non-compounded chemical to be used in the
execution.” Atwood alleges that these requirements amount
to a state-created liberty interest, and that Defendants have
disregarded these requirements in violation of his due
process rights.
The district court found that even assuming Atwood
could establish such a liberty interest, there was insufficient
evidence that Arizona has deviated from its Execution
Protocol to support his due process claim.

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8 ATWOOD V . SHINN
Even assuming without deciding that Atwood has a
liberty interest created by the Execution Protocol,2 the
district court did not clearly err in determining Atwood had
failed to show the Execution Protocol was violated. As noted
by the district court, “[t]he Protocol neither defines
‘quantitative analysis’ nor sets forth requirements for how a
[beyond use date] must be assigned.” Defendants provided
Atwood with quantitative analysis information and an
affidavit certifying that the compound’s beyond use date was
after the date the execution is to be carried out. The district
court’s finding that there was insufficient evidence to
conclude that Arizona violated the Execution Protocol is not
clearly erroneous.
IV
Finally, we address Atwood’s allegation that he was
deprived of his state law liberty interest in choosing the
manner of his execution, because Arizona failed to provide
a constitutional choice of lethal gas as a method of
execution. Because Atwood committed his capital murder
before November 23, 1992, he had a choice of execution
method under Arizona law between lethal gas and lethal
injection. See Ariz. Rev. Stat. § 13-757(B); Ariz. Const. art.
22, § 22. Because Atwood did not timely designate a
method, his method of execution will be lethal injection by
operation of Arizona law. Ariz. Rev. Stat. § 13-757(B).
Atwood, however, argues that the choice was illusory
2 We reject Defendants’ argument that Atwood waived his
contention that Arizona’s Execution Protocol gives rise to a liberty
interest. See W. Watersheds Project v. U.S. Dep’t of the Interior, 677
F.3d 922, 925 (9th Cir. 2012) (“There is no waiver if the issue was raised,
the party took a position, and the district court ruled on it.”).

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ATWOOD V . SHINN 9
because Arizona uses hydrogen cyanide, which he claims is
an unconstitutional method of lethal gas execution.
The district court properly dismissed these claims for
lack of standing because Arizona intends to execute Atwood
by lethal injection. A defendant lacks standing to challenge
the constitutionality of an execution method that will not be
used in the defendant’s execution. See Fierro v. Terhune,
147 F.3d 1159, 1160 (9th Cir. 1998) (holding that “[b]ecause
neither plaintiff has chosen lethal gas as his method of
execution . . . neither plaintiff has standing to challenge the
constitutionality of execution by lethal gas and the plaintiffs’
claims are not ripe for decision.”). We are bound by our prior
decision, and are likewise without jurisdiction to address
these claims.
Atwood’s motions for a stay of execution are denied.3
3 Atwood’s “motion to bifurcate ruling” is denied.

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