FRANK JARVIS ATWOOD, No. 22-15821

Plaintiff-Appellant, D.C. No. 2:22-cv-00860-MTL-JZB v. DAVID SHINN, Director, Arizona OPINION Department of Corrections, Rehabilitation & Reentry; JAMES KIMBLE, Warden, ASPC- Eyman; JEFFREY VAN WINKLE, Warden, ASPC-Florence; LANCE HETMER, Assistant Director for Prison Operations, Arizona Department of Corrections, Rehabilitation & Reentry; MARK BRNOVICH, Attorney General, Attorney General of Arizona; UNKNOWN PARTY, Named as John Doe - Arizona-Licensed Pharmacist,

Defendants-Appellees.

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 Before: M. Margaret McKeown, Consuelo M. Callahan, and Sandra S. Ikuta, Circuit Judges. 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 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

2 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 pain, Atwood maintains a seated pos