GERALD ROSS PIZZUTO, Jr.; THOMAS No. 20-36044 E. CREECH, D.C. No. 1:20-cv-00114-DCN Plaintiffs-Appellants,

v. OPINION 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; TYRELL DAVIS, Warden 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 April 5, 2021 Seattle, Washington Before: Ronald M. Gould, Johnnie B. Rawlinson, and Mark J. Bennett, Circuit Judges.

Opinion by Judge Bennett; Partial Concurrence and Partial Dissent by Judge Gould BENNETT, Circuit Judge:

Plaintiffs Gerald Pizzuto and Thomas Creech, two prisoners on Idaho’s death row, seek information concerning Idaho’s execution procedures. They do not in this action claim that their execution will be unconstitutional; rather, they claim that the deprivation of information itself constitutes a violation of their constitutional and statutory rights under 42 U.S.C. § 1983. The district court dismissed all their claims as unripe. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand.

I.

In 1985, Pizzuto robbed and killed Berta and Delbert Herndon at a campground near the town of McCall, Idaho. State v. Pizzuto, 810 P.2d 680, 686– 87 (Idaho 1991), overruled on other grounds by State v. Card, 825 P.2d 1081, 1088 (Idaho 1991). He was convicted of two counts of first-degree murder and sentenced to death. Id. at 687. His sentence was upheld on direct appeal in 1991. See id. at 716. Creech was serving a life sentence for two counts of first-degree murder at the Idaho State Correctional Institution when he killed fellow inmate David Dale Jensen in 1981. State v. Creech, 670 P.2d 463, 465 (Idaho 1983); see also State v. Creech,

2 589 P.2d 114, 115 (Idaho 1979) (per curiam). He pleaded guilty to first-degree murder for killing Jensen and was sentenced to death. Creech, 670 P.2d at 465–66. This court ultimately granted habeas relief and the case was remanded for resentencing. Creech v. Arave, 947 F.2d 873, 888 (9th Cir. 1991), rev’d in part by 507 U.S. 463 (1993). On remand, the trial court resentenced Creech to death, and the death sentence was upheld by the Idaho Supreme Court in 1998. See State v. Creech, 966 P.2d 1, 6, 23 (Idaho 1998).

Both Pizzuto and Creech are close to exhausting their post-conviction appeals. On February 3, 2021, the Idaho Supreme Court affirmed the denial of Pizzuto’s motion to alter the judgment on his fifth petition for post-conviction relief. Pizzuto v. State, --- P.3d ---, 2021 WL 358204 at *1 (Idaho Feb. 3, 2021).1 That decision will become final if Pizzuto does not file a certiorari petition to the United States Supreme Court or he files such a petition and it is resolved in Idaho’s favor. Pizzuto has no pending federal post-conviction proceedings,2 and this court affirmed the denial of his most recent habeas petition in Pizzuto v. Yordy, 947 F.3d 510 (9th Cir. 2019) (per curiam), cert. denied 141 S. Ct. 661 (2020). See id. at 514. Creech filed a federal habeas petition in 1999 that was denied by the district court. Creech’s

1 On April 29, 2021, while this appeal was pending, the Idaho Supreme Court denied Pizzuto’s petition for rehearing and issued a remittitur. 2 Pizzuto has sinc