Pizzuto v. Derrick, et al.

ORDER - 1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
GERALD ROSS PIZZUTO, JR.,
Plaintiff,
v.
BREE DERRICK, Director, Idaho Department
of Correction, in her official capacity;
TIMOTHY RICHARDSON, Warden, Idaho
Maximum Security Institution, in his official
capacity; LIZ NEVILLE, Chief of Prisons, Idaho
Department of Corrections, in her official
capacity,
Defendants.
Case No. 1:21-cv-00359-BLW
MEMORANDUM DECISION AND
ORDER
INTRODUCTION
Before the Court is Defendants’ Motion for Summary Judgment (Dkt. 244)
and Plaintiff’s Motion to Stay Proceedings (Dkt. 247). Oral argument was held on
January 5, 2026. As explained further below, the Court will stay the proceedings
and defer ruling on summary judgment.
BACKGROUND
Plaintiff Gerald Ross Pizzuto brought this as-applied Eighth Amendment
challenge to Idaho’s lethal injection protocol in 2021. At the time, lethal injection
was the default method of execution in Idaho, and Pizzuto offered the firing squad
Case 1:21-cv-00359-BLW Document 262 Filed 02/06/26 Page 1 of 7

ORDER - 2
as an alternative, more humane execution method. See Glossip v. Gross, 576 U.S.
863, 877 (2015) (requiring a plaintiff bringing a method-of-execution challenge to
“identify an alternative that is feasible, readily implemented, and in fact
significantly reduces a substantial risk of serious pain” (cleaned up)).
In March 2025, Idaho enacted a law making the firing squad the default
method of execution, with lethal injection as the backup. See Idaho Code § 19-
2716. This means that if the firing squad is “available”—as certified by the
Director of the Idaho Department of Corrections—that is the method that must be
utilized. Only if the firing squad is unavailable does lethal injection become the
method of execution. The law goes into effect on July 1, 2026, and all executions
in Idaho are paused while the execution facilities undergo renovations.
ANALYSIS
Defendants seek summary judgment on the theory that the firing squad
legislation has mooted Pizzuto’s challenge to the lethal injection.1 They also argue
that the case is unripe because Idaho does not presently have the ability to execute
Pizzuto, and there is not an active death warrant for him. Pizzuto seeks to instead
stay the proceedings due to lingering uncertainty related to the firing squad.
1 Pizzuto argues that Defendants’ should have filed a motion to dismiss under Rule 12(b)(1)
rather than a motion for summary judgment under Rule 56. The Court will avoid taking up this
dispute because it does not currently bear on the resolution of the underlying issues.
Case 1:21-cv-00359-BLW Document 262 Filed 02/06/26 Page 2 of 7

ORDER - 3
1. Mootness
“A case becomes moot when the issues presented are no longer ‘live’ or the
parties lack a legally cognizable interest in the outcome of the litigation.” Pitts v.
Terrible Herbst, Inc., 653 F.3d 1081, 1086 (9th Cir. 2011). The burden is usually
on the party asserting mootness. Forest Guardians v. Johanns, 450 F.3d 455, 461
(9th Cir. 2006). In particular, if the defendant voluntary ceased the challenged
conduct, the defendant bears the “burden of establishing that the challenged
behavior cannot reasonably be expected to recur.” Brach v. Newsom, 38 F.4th 6, 12
(9th Cir. 2022).
Despite the above standard, Defendants suggest that Pizzuto bears the
burden to show that the case is not moot because mootness is based on a legislative
change. When a legislature repeals or amends a challenged provision, “we should
presume that the repeal, amendment, or expiration of legislation will render an
action challenging the legislation moot.” Bd. of Trust. Of Glazing Health &
Welfare Trust v. Chambers, 941 F.3d 1195, 1199 (9th Cir. 2019). Under this
doctrine, the Court agrees that the burden would be on Mr. Pizzuto if Idaho had
removed lethal injection as a permitted method of execution. But that is not what
happened. Lethal injection remains the secondary method, and it is up to the IDOC
to determine whether the primary method of firing squad is unavailable. For that
reason, the Court will not start from the presumption that the case is moot.
Case 1:21-cv-00359-BLW Document 262 Filed 02/06/26 Page 3 of 7

ORDER - 4
Thus, the correct framework is voluntary cessation, not legislative change,
and the burden is on Defendants. The Court takes on good faith Defendants’
representation that they do not currently intend to execute Mr. Pizzuto via firing
squad. But intentions change. If there are any complications around the firing
range, it remains entirely plausible that IDOC could turn to lethal injection again.
The completion of the execution facilities renovations should clarify things
considerably, and it would be premature to dismiss this case until, at the least, the
construction of the firing range is done.
Accordingly, the Court lacks sufficient information, at this juncture, to
declare this action moot. Instead, a stay will properly protect Defendants’ interests
and preserve judicial resources while the work of implementing the firing squad
method of execution proceeds.
2. Ripeness
Defendants also seek summary judgment on the theory that Pizzuto’s case is
unripe because he does not have an active death warrant, and they do not presently
have the ability to execute him. To support this, they cite the recent Ninth Circuit
case Hogan v. Bean, 140 F.4th 1001, 1044-45 (9th Cir. 2025), for the proposition
that method-of-execution claims are not ripe until there is a death warrant, among
other factors. But this overstates Hogan’s ruling and obscures several crucial
factual distinctions.
Case 1:21-cv-00359-BLW Document 262 Filed 02/06/26 Page 4 of 7

ORDER - 5
In Hogan, a habeas petitioner argued that Nevada’s lethal drug cocktail
constituted cruel and unusual punishment. He brought the claim before the state
ever issued a death warrant for him, and the drugs that he challenged were replaced
by a new cocktail during the pendency of his action. Id. at 1045. Further, Nevada
lacked one of the new drugs (ketamine) and was barred from obtaining the one of
the old drugs (midazolam) due a lawsuit brought by the drug manufacturer. As a
result, the Ninth Circuit held:
Under the new protocol, “Nevada presently has no execution protocol
that it could apply.” Floyd, 949 F.3d at 1152 (emphasis added).
Nevada has no usable ketamine, and drug manufacturers have blocked
Nevada from purchasing additional midazolam. See id. Moreover,
Nevada has not issued an execution warrant, so it is premature for us
to speculate on any future developments. Thus, we find that Hogan’s
drug-specific lethal-injection challenge is not yet ripe, and this claim
is not justiciable.
Id. at 1045.
Here, in contrast, Idaho has already issued death warrants for Mr. Pizzuto—
several death warrants in fact, in the four years since this case was filed. And
though IDOC does not currently have execution drugs on hand or an active
agreement to procure new ones, Idaho does have a lethal injection protocol that it
could apply. Pizzuto’s case is not the pure speculation that characterized Hogan; it
stems from concrete IDOC policies and actions. Given these factual distinctions,
Defendants seek a dramatic extension of Hogan, not simply the application of
binding precedent.
Case 1:21-cv-00359-BLW Document 262 Filed 02/06/26 Page 5 of 7

ORDER - 6
The Court declines to adopt such an extension because it would make
method-of-execution cases impossible to litigate. Imagine that a death row
plaintiff did wait for the state to obtain a death warrant before challenging the
execution method. If a court found enough cause for concern to stay the execution
while developing the factual record, the expiration of the death warrant would
render the case unripe and necessitate dismissal. The state would then seek a new
warrant, and the plaintiff would file suit again and seek a stay, and the parties
would be stuck forever in that revolving door. This is not what the Ninth Circuit
mandated in Hogan.
In sum, the Court will keep Defendant’s Motion for Summary Judgment
under advisement while awaiting further developments regarding the firing squad.
The Court will stay the proceedings in the interim, except as necessary to resolve
the pending motions to seal. The Court will set a status conference for June 2026,
shortly before the firing squad law becomes effective.
ORDER
THEREFORE, IT IS HEREBY ORDERED that:
1. Defendants’ Motion for Summary Judgment (Dkt. 244) is HELD
IN ABEYANCE pending the resumption of executions in Idaho.
2. Plaintiff’s Motion to Stay Proceedings (Dkt. 247) is GRANTED.
Case 1:21-cv-00359-BLW Document 262 Filed 02/06/26 Page 6 of 7

ORDER - 7
The proceedings are hereby stayed except for any actions
necessary to resolve the pending motions to seal.
DATED: February 6, 2026
_________________________
B. Lynn Winmill
U.S. District Court Judge
Case 1:21-cv-00359-BLW Document 262 Filed 02/06/26 Page 7 of 7