THOMAS E. CREECH, No. 22-35069

Plaintiff-Appellant, D.C. No. 1:20-cv-00114-DCN and OPINION GERALD ROSS PIZZUTO, Jr.,

Plaintiff,

v. JOSH TEWALT, Director, Idaho Department of Correction, in his official capacity; CHAD PAGE, Chief, Division of Prisons, Idaho Department of Correction, in his official capacity; TIM RICHARDSON, Warden of the Idaho Maximum Security Institution; UNKNOWN EMPLOYEES, AGENTS, OR CONTRACTORS OF THE IDAHO DEPARTMENT OF CORRECTION, in their official capacities,

Defendants-Appellees, and BRAD LITTLE, Idaho State Governor, in his official capacity,

Defendant.

Appeal from the United States District Court for the District of Idaho David C. Nye, Chief District Judge, Presiding

Argued and Submitted July 24, 2023 Seattle, Washington Before: Ronald M. Gould, Johnnie B. Rawlinson, and Mark J. Bennett, Circuit Judges.

Opinion by Judge Bennett BENNETT, Circuit Judge:

Plaintiff Thomas Creech is an Idaho prisoner facing execution by lethal injection. In this action, he challenges Idaho’s execution practices, including the State’s alleged failure to timely disclose information about the drugs and procedures to be used during an execution. He alleges that these practices: 1) interfere with his ability to challenge the State’s method of execution as cruel and unusual punishment; 2) inhibit his ability to seek clemency; 3) inflict mental anguish; 4) increase the risk of an unconstitutionally painful execution; 5) treat similarly situated prisoners unequally; 6) violate the separation of powers under the Idaho Constitution; and 7) contravene Idaho Code § 19-2716’s requirement that the director of the Idaho Department of Correction (IDOC) establish procedures governing executions.

In a prior appeal, we reversed the district court’s dismissal of the amended complaint for lack of jurisdiction. Pizzuto v. Tewalt (Pizzuto I), 997 F.3d 893 (9th Cir. 2021). We held that Creech’s claims were ripe and that IDOC’s issuance of a

2 revised execution protocol mooted some of Creech’s claims. We also noted that Creech’s claims did not appear to be viable, but that Creech should be permitted to amend the complaint on remand to advance any colorable claims.

On remand, and in light of then-co-plaintiff Gerald Pizzuto’s scheduled execution, the district court sua sponte dismissed the complaint for failure to state a claim under Federal Rule of Civil Procedure (“Rule”) 12(b)(6). The court also held that amendment of the complaint would be futile and dismissed it without leave to amend. Creech then timely noticed this second appeal.

We affirm in part, vacate in part, and remand. We reject Creech’s contention that the district court violated the rule of mandate by denying leave to amend in connection with the Rule 12(b)(6) dismissal of the complaint. Although our decision in Pizzuto I noted parenthetically that Creech should be permitted to amend the complaint, 997 F.3d at 906, we did not foreclose the district court’s sua sponte dismissal of the complaint or address whether, in connection with such a dismissal, further amendment would be futile. The district court therefore was free to address those issues without violating our mandate.

We agree with the district court that amendment of several of Creech’s claims would be futile. We therefore affirm the dismissal with prejudice of the First Amendment claims based on access to execution-related information (part of Claim One and Claim Two), one of the Eighth Amendment claims (Claim Three),

3 the equal protection claim (Claim Five), the statutory right to counsel claim (Claim Six), and the sep