Thomas E. Creech v. JOSH TEWALT, Director, Idaho Department of Correction

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS E. CREECH,
Plaintiff-Appellant,
and
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
No. 22-35069
D.C. No. 1:20-cv-
00114-DCN
OPINION

-- 1 of 36 --

2 CREECH V. T EWALT
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
Filed October 13, 2023
Before: Ronald M. Gould, Johnnie B. Rawlinson, and
Mark J. Bennett, Circuit Judges.
Opinion by Judge Bennett
SUMMARY*
Death Penalty
The panel (1) affirmed in part and vacated in part the
district court’s dismissal for failure to state a claim of an
action brought by Thomas Creech, an Idaho prisoner facing
execution by lethal injection, who challenges Idaho’s
execution practices, including the State’s alleged failure to
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

-- 2 of 36 --

CREECH V. T EWALT 3
timely disclose information about the drugs and procedures
to be used during an execution; and (2) remanded with
instructions to grant Creech leave to amend or supplement
Claims One, Four and Nine.
The panel rejected Creech’s contention that the district
court violated the rule of mandate by denying leave to amend
in connection with its Fed. R. Civ. P. 12(b)(6) dismissal of
the complaint. Although this court’s decision in Pizzuto v.
Tewalt, 997 F.3d 893 (9th Cir. 2021), noted parenthetically
that Creech should be permitted to amend the complaint, it
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 this court’s mandate.
The panel agreed with the district court that amendment
of several of Creech’s claims would be futile. The panel
therefore affirmed 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), the equal
protection claim (Claim Five), the statutory right to counsel
claim (Claim Six), and the separation of powers claim
(Claim Seven). The panel also affirmed the dismissal of the
Idaho Code § 19-2716 claim (Claim Eight) but instructed
that, on remand, the district court should clarify that such
dismissal was without prejudice.
The panel vacated the dismissal of three of Creech’s
claims, with instructions to the district court to allow leave
to amend, because the panel did not find it clear on de novo
review that those claims could not be saved by
amendment: (1) the part of Claim One that alleges Creech’s

-- 3 of 36 --

4 CREECH V. T EWALT
attorneys’ right to view Creech’s entire execution; (2) Claim
Four, which alleges that the State’s practices violate
procedural due process by depriving Creech of a meaningful
opportunity to challenge his method of execution under the
Eighth Amendment; (3) Claim Nine, which asserts that the
Idaho Department of Correction’s failure to provide
information about Creech’s execution creates “a substantial
risk that [he] will be subjected to severely painful
executions, in violation of the Eighth Amendment.”
The panel ordered the mandate to issue forthwith.
COUNSEL
Sarah E. Kalman (argued), DLA Piper LLP (US),
Philadelphia, Pennsylvania; Stanley J. Panikowski, III,
DLA Piper LLP (US), San Diego, California; Sean A.
Newlan, DLA Piper LLP (US), Phoenix, Arizona; Alice A.
Gyamfi, DLA Piper LLP (US), New York, New York;
Charles Peterson and Nicole Owens, Executive Directors;
Jonah J. Horwitz and Christopher M. Sanchez, Assistant
Federal Defenders; Federal Defender Services of Idaho,
Boise, Idaho; William M. Pope, Assistant Federal Public
Defender, Federal Public Defender’s Office (Eastern
Washington and Idaho), Spokane, Washington; for Plaintiff-
Appellant.
Theodore J. Wold (argued), Solicitor General; Mark
Kubinski, Deputy Assistant Attorney General; Kristina M.
Schindele, Acting Assistant Attorney General; Lawrence G.
Wasden, Idaho Attorney General; Idaho Attorney General’s
Office, Boise, Idaho; for Defendants-Appellees.

-- 4 of 36 --

CREECH V. T EWALT 5
OPINION
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 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

-- 5 of 36 --

6 CREECH V. T EWALT
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), the equal protection
claim (Claim Five), the statutory right to counsel claim
(Claim Six), and the separation of powers claim (Claim
Seven). We also affirm the dismissal of the § 19-2716 claim
(Claim Eight) but instruct that, on remand, the district court
should clarify that such dismissal is without prejudice.
We vacate the dismissal of three of Creech’s claims, with
instructions to the district court to allow leave to amend,
because we do not find it clear on de novo review that those
claims could not be saved by amendment. See Curry v. Yelp
Inc., 875 F.3d 1219, 1228 (9th Cir. 2017). First, is that part
of Claim One that alleges his attorneys’ right to view
Creech’s entire execution. Second is Claim Four, which
alleges that the State’s practices violate procedural due

-- 6 of 36 --

CREECH V. T EWALT 7
process by depriving Creech of a meaningful opportunity to
challenge his method of execution under the Eighth
Amendment. Third is Claim Nine, which asserts that
IDOC’s failure to provide information about Creech’s
execution creates “a substantial risk that [he] will be
subjected to severely painful executions, in violation of the
Eighth Amendment.” Am. Compl. ¶ 611.
BACKGROUND
At all times relevant to this appeal, Idaho Code
§ 19-2716 authorized executions in Idaho to be carried out
by lethal injection but delegated the details of the execution
procedure to the director of IDOC. The version of the statute
in effect in 2020, when this action was filed, provided:
The punishment of death shall be inflicted by
continuous, intravenous administration of a
lethal quantity of a substance or substances
approved by the director of the Idaho
department of correction until death is
pronounced by a coroner or a deputy coroner.
The director of the Idaho department of
correction shall determine the procedures to
be used in any execution.
Idaho Code § 19-2716 (2020). The current version of the
statute, following amendment in 2023, provides:
(1) The punishment of death shall be inflicted
by the following methods:
(a) Continuous, intravenous administration of
a lethal quantity of a substance or substances
approved by the director of the Idaho
department of correction until death is

-- 7 of 36 --

8 CREECH V. T EWALT
pronounced by a coroner or a deputy coroner;
or
(b) Firing squad.
. . .
(6) The director shall determine the
procedures to be used in any execution.
Id. § 19-2716 (2023).
In accordance with § 19-2716, IDOC promulgates
Standard Operating Procedures (SOPs) governing
executions. At the time this action was filed, Idaho had last
revised these procedures in 2012. The then-current version
was Standard Operating Procedure Control Number
135.02.01.001, Version 3.6, commonly known as “SOP
135.” Am. Compl. ¶ 48. The protocol authorized four
means of lethal injection: (1) a three-drug protocol using
sodium pentothal, pancuronium bromide, and potassium
chloride; (2) a three-drug protocol using pentobarbital,
pancuronium bromide, and potassium chloride; (3) a single-
drug protocol using sodium pentothal; and (4) a single-drug
protocol using pentobarbital.
In June 2019, IDOC informed attorneys with the Capital
Habeas Unit of Federal Defender Services of Idaho (CHU)
that there would be changes to the 2012 version of SOP 135
before any executions would take place. According to the
complaint, however, IDOC “did not provide any detail on
what those changes would entail or when they would be
made.” Id. ¶ 61.
In March 2020, Creech and Pizzuto commenced this
civil action in federal district court. Defendants are IDOC
Director Josh Tewalt; Division of Prisons Chief Chad Page;

-- 8 of 36 --

CREECH V. T EWALT 9
Idaho Maximum Security Institution Warden Tim
Richardson; and unknown employees, agents, or contractors
of IDOC.1 Plaintiffs sued defendants solely in their official
capacities, and the action seeks only prospective relief. The
complaint sought to: (1) compel IDOC to issue a revised
protocol setting forth the execution procedures that would
govern their executions; (2) compel IDOC to provide
detailed information about how their executions would be
carried out; and (3) require IDOC to grant their CHU
attorneys permission to access the execution chamber,
witness their entire executions, and have access to cameras
and phones during their executions. It sought the following
execution-related information:
(1) the number, amount, and type of drugs to
be used, (2) how the drugs were made, how
the drugs were/will be obtained, their source,
amounts, expiration date, how they were
acquired/transported/stored/tested, when
IDOC obtain will [sic] the drugs, etc.[,]
(3) when a new version of SOP 135 will be
issued, (4) whether witnesses will be able to
observe the insertion of the IVs[,]
(5) procedures for IV placement/length,
(6) who will participate in the execution,
what is their training/qualifications, and how
will they be chosen, (7) whether there will be
a consciousness check and the procedure for
it, and (8) procedures for botched executions.
Id. ¶ 498.
1 Idaho Governor Brad Little was dismissed as a party.

-- 9 of 36 --

10 CREECH V. T EWALT
The complaint alleged that defendants have a history of
questionable sourcing of execution drugs, revising execution
procedures at the last minute, and either refusing to provide
important execution-related information at all or providing
that information in an untimely manner, inhibiting prisoners’
ability to litigate the constitutionality of execution
procedures. The complaint alleged, for example, that during
Idaho’s most recent execution (of Richard Leavitt in 2012),
IDOC announced its intention to use a single-drug protocol
of pentobarbital on May 25, 2012, just eighteen days before
the execution. Id. ¶¶ 189–90.
The complaint contained nine claims. In Claims One and
Two, the complaint asserted a right to execution-related
information under the First Amendment right of public
access to government proceedings and records (Claim One)
and the First Amendment right to petition the government
for redress of grievances and access the courts (Claim Two).
Id. ¶¶ 493–522. Claim One further alleged that the public’s
“right of access . . . includes the CHU’s right to access the
execution chamber, the right to witness the entire execution
procedure, and the right to be permitted access to cameras
and phones during the execution.” Id. ¶ 499.
Claim Three alleged that “[t]he immense mental anxiety
caused by the lack of clarity around the State’s execution
protocol triggers in the plaintiffs an intolerable, unnecessary,
and unconstitutional degree of psychological trauma and
anxiety, which amounts to an increase in the offender’s
punishment” and constitutes an “unnecessary and wanton
infliction of pain that is prohibited by the Eighth
Amendment.” Id. ¶ 532.
Claim Four alleged that “defendants’ refusal to provide
the plaintiffs with information that would enable them to

-- 10 of 36 --

CREECH V. T EWALT 11
determine how the State intends to execute them” deprives
them of procedural due process under the Fourteenth
Amendment by “rais[ing] a procedural barrier to challenging
the constitutionality of IDOC’s execution process” under the
Eighth Amendment. Id. ¶ 537.
Claim Five asserted that IDOC’s “pattern and practice of
essentially creating a new protocol for each condemned
inmate as soon as his execution is imminent” means that
“inmates are not treated consistently with one another in
regards to their executions” and “violat[es] the Equal
Protection Clause’s guarantee of equal treatment for
similarly situated persons.” Id. ¶¶ 546–47, 551.
Claim Six alleged that defendants’ failure to provide
execution-related information denies plaintiffs their
statutory right to counsel under 18 U.S.C. § 3599 by
preventing their attorneys from seeking clemency on the
ground that their executions would involve an excessive risk
of pain. Id. ¶¶ 553–77.
Claim Seven asserted that the Idaho Legislature’s
adoption of § 19-2716 violates separation of powers
principles under the Idaho Constitution because the statute
delegates unfettered discretion to IDOC to promulgate
execution procedures without providing meaningful
legislative standards to guide the IDOC’s discretion.
Id. ¶¶ 578–603.
Claim Eight alleged that the failure to promulgate a
revised execution protocol breached IDOC’s statutory
obligation to “determine the procedures to be used in any
executions.” Id. ¶¶ 604–07 (quoting Idaho Code
§ 19-2716).

-- 11 of 36 --

12 CREECH V. T EWALT
Claim Nine alleged that “IDOC’s refusal to provide any
meaningful information to the plaintiffs about their
executions prevents the CHU from taking steps to ensure
that such executions are carried out humanely,” thus
“creat[ing] a substantial risk that the plaintiffs will be
subjected to severely painful executions, in violation of the
Eighth Amendment.” Id. ¶¶ 608–11.
Defendants moved to dismiss the complaint for both lack
of jurisdiction and failure to state a claim upon which relief
can be granted. See Fed. R. Civ. P. 12(b)(1), (6). The district
court granted the motion on jurisdictional grounds without
reaching the Rule 12(b)(6) issues. Pizzuto v. Little, No. 1:20-
CV-00114-DCN, 2020 WL 6747974 (D. Idaho Nov. 17,
2020). The court concluded that the claims were unripe
because “[b]oth Pizzuto and Creech have ongoing appeals
for relief from their convictions” and “the ultimate question
of whether the two men will even be executed remains an
undetermined and open question, rendering the claims in this
case speculative and abstract.” Id. at *4. Plaintiffs timely
appealed.
While plaintiffs’ appeal was pending, IDOC issued a
revised execution protocol and obtained a death warrant for
Pizzuto, scheduling his execution for June 2, 2021. See
Pizzuto I, 997 F.3d at 897 n.3, 899. The revised protocol,
promulgated in March 2021, specifies the same four means
of lethal injection as its predecessor. Id. at 899 & n.5.
On May 12, 2021, we issued our opinion in Pizzuto I.
We held that plaintiffs’ claims were ripe, that IDOC’s
issuance of a revised protocol mooted some of plaintiffs’
claims, and that plaintiffs’ claims did not appear to be viable.
Id. at 899–908. We also noted that, “[o]n remand, plaintiffs
will likely seek (and should be permitted) to amend their

-- 12 of 36 --

CREECH V. T EWALT 13
complaint to reallege their ripe claims against the revised
SOP and fix the flaws in their state law claims.” Id. at 906.
Three days after our mandate issued, and with Pizzuto’s
execution imminent, the district court sua sponte dismissed
the complaint for failure to state a claim upon which relief
can be granted. The court also held that amendment of the
original nine claims would be futile and dismissed those
claims with prejudice and without leave to amend.2 Soon
after, a state court stayed Pizzuto’s execution, and, with
Pizzuto’s consent, the district court dismissed him from the
case, leaving Creech as the sole plaintiff. Creech then
moved for reconsideration of the order dismissing the
original claims without leave to amend, arguing, among
other things, that the denial of leave to amend contravened
Pizzuto I’s mandate. The district court rejected that
argument, denied the motion for reconsideration, see Creech
v. Tewalt, No. 1:20-cv-00114-DCN, 2022 WL 60602 (D.
Idaho Jan. 5, 2022), and entered final judgment dismissing
the original claims with prejudice. Creech once again timely
appealed.
We note three developments during this appeal. First,
Idaho adopted House Bill 658 in 2022. This legislation
provides that information identifying either members of an
execution team or individuals involved in supplying lethal
injection drugs “shall be confidential, shall not be subject to
disclosure, and shall not be admissible as evidence or
discoverable in any proceeding before any court, tribunal,
board, agency, or person.” Idaho Code § 19-2716A(4). It
2 The district court granted plaintiffs leave to file an amended complaint
raising new claims challenging the revised protocol, but denied leave to
amend the original nine claims, deeming those claims non-viable and
concluding that amendment of those claims would be futile.

-- 13 of 36 --

14 CREECH V. T EWALT
also provides that records “that could lead to the
identification of any persons or entities that participate in or
assist with an execution of a death sentence” are exempt
from disclosure under the Idaho Public Records Act.
Id. § 74-105(20).
Second, we take judicial notice that in recent months
Idaho has twice scheduled Pizzuto’s execution and that each
time IDOC has suspended the revised execution protocol in
connection with those planned executions. See Fed. R. Evid.
201(b)(2).3
Finally, we note that Idaho recently authorized the firing
squad as an alternative method of execution. See 2023 Idaho
Sess. Laws 390. Under the revised statute, execution by
firing squad is authorized when execution by lethal injection
is unavailable. See Idaho Code § 19-2716(4). We have not
been informed of any plans to execute Creech by firing
squad.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291. Our
review of the issues raised in this appeal is de novo. See
E.M. ex rel. E.M. v. Pajaro Valley Unified Sch. Dist. Off. of
Admin. Hearings, 758 F.3d 1162, 1170 (9th Cir. 2014) (“A
district court’s compliance with our mandate is reviewed de
novo.”); Hooper v. Shinn, 985 F.3d 594, 615 (9th Cir. 2021)
(“When a district court denies leave to amend based on a
determination that the proposed claim would be futile, we
3 The State obtained the first death warrant on November 16, 2022, and
it scheduled an execution for December 15, 2022. The State allowed that
death warrant to lapse due to IDOC’s inability to acquire execution
drugs. The State obtained a second death warrant on February 24, 2023,
setting an execution date of March 23, 2023. The federal district court
has since stayed that execution.

-- 14 of 36 --

CREECH V. T EWALT 15
review the determination of futility de novo.”). Under our
case law, “[d]ismissal without leave to amend is improper
unless it is clear, upon de novo review, that the complaint
could not be saved by any amendment.” Gompper v. VISX,
Inc., 298 F.3d 893, 898 (9th Cir. 2002) (quoting Polich v.
Burlington N., Inc., 942 F.2d 1467, 1472 (9th Cir. 1991)).
DISCUSSION
I. Rule of Mandate
Creech contends the district court violated the rule of
mandate by dismissing his original claims without leave to
amend. We disagree.
“A district court that has received the mandate of an
appellate court cannot vary or examine that mandate for any
purpose other than executing it.” Hall v. City of Los Angeles,
697 F.3d 1059, 1067 (9th Cir. 2012). “But while ‘the
mandate of an appellate court forecloses the lower court
from reconsidering matters determined in the appellate
court, it leaves to the district court any issue not expressly or
impliedly disposed of on appeal.’” S.F. Herring Ass’n v.
Dep’t of the Interior, 946 F.3d 564, 574 (9th Cir. 2019)
(internal quotation marks omitted) (quoting Nguyen v.
United States, 792 F.2d 1500, 1502 (9th Cir. 1986)). In
determining which matters fall within the compass of a
mandate, “[d]istrict courts ‘must implement both the letter
and the spirit of the mandate, taking into account the
appellate court’s opinion and the circumstances it
embraces.’” Vizcaino v. U.S. Dist. Ct. for W. Dist. of Wash.,
173 F.3d 713, 719 (9th Cir. 1999) (as amended) (internal
quotation marks omitted) (quoting Delgrosso v. Spang &
Co., 903 F.2d 234, 240 (3d Cir. 1990)).

-- 15 of 36 --

16 CREECH V. T EWALT
Here, nothing in our decision in Pizzuto I foreclosed the
district court’s sua sponte dismissal of the complaint three
days after the issuance of our appellate mandate. It is true
that we did not anticipate the sua sponte dismissal, but
neither did we foreclose it. Furthermore, although sua
sponte dismissals are unusual, they are permitted under our
precedent. See Omar v. Sea-Land Serv., Inc., 813 F.2d 986,
991 (9th Cir. 1987); Wong v. Bell, 642 F.2d 359, 361–62 (9th
Cir. 1981). The district court reasonably availed itself of this
option here given the urgency presented by Pizzuto’s
imminent execution.
Once the district court exercised its discretion to sua
sponte dismiss the complaint, the court properly addressed
whether amendment of the original nine claims would be
futile. See Doe v. United States, 58 F.3d 494, 497 (9th Cir.
1995) (“In dismissing for failure to state a claim, ‘a district
court should grant leave to amend even if no request to
amend the pleading was made, unless it determines that the
pleading could not possibly be cured by the allegation of
other facts.’” (quoting Cook, Perkiss & Liehe v. N. Cal.
Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990) (per
curiam))). Because futility of amendment is an issue that we
did not address in Pizzuto I, either expressly or impliedly,
the district court was free to consider it. See Quern v.
Jordan, 440 U.S. 332, 347 n.18 (1979) (“While a mandate is
controlling as to matters within its compass, on the remand
a lower court is free as to other issues.” (quoting Sprague v.
Ticonic Nat’l Bank, 307 U.S. 161, 168 (1939))). Thus,
although the proceedings on remand did not follow the path
we had anticipated, we reject Creech’s argument that the
district court violated the rule of mandate.

-- 16 of 36 --

CREECH V. T EWALT 17
II. Whether Our Discussion of the Merits in Pizzuto I
Was Binding and Definitive
Creech contends that our discussion of the merits of
plaintiffs’ claims in Pizzuto I was “neither binding nor
definitive,” Opening Br. at 21, that the district court
construed that discussion as binding and definitive, and that
the district court erred by doing so.
First, we reject Creech’s contention that our discussion
of the merits in Pizzuto I was not binding. Although some
of our older cases embraced the view that “statements [that
are] not necessary to [a] decision . . . have no binding or
precedential impact,” Exp. Grp. v. Reef Indus., Inc., 54 F.3d
1466, 1472 (9th Cir. 1995), we have since held that “[w]here
a panel confronts an issue germane to the eventual resolution
of the case, and resolves it after reasoned consideration in a
published opinion, that ruling becomes law of the circuit,
regardless of whether doing so is necessary in some strict
logical sense,” City of Los Angeles v. Barr, 941 F.3d 931,
943 n.15 (9th Cir. 2019) (quoting Cetacean Cmty. v. Bush,
386 F.3d 1169, 1173 (9th Cir. 2004) (in turn quoting United
States v. Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (en
banc) (opinion of Kozinski, J.))). Therefore, “[w]ell-
reasoned dicta is the law of the circuit.” United States v.
McAdory, 935 F.3d 838, 843 (9th Cir. 2019) (alteration in
original) (quoting Enying Li v. Holder, 738 F.3d 1160, 1164
n.2 (9th Cir. 2013)). Our discussion of the merits in Pizzuto I
may not have been necessary to the outcome, but it was
reasoned. It is therefore binding, as both law of the case and
circuit precedent. Creech errs in arguing otherwise.
Creech stands on firmer footing in arguing that
Pizzuto I’s discussion of the merits was less than definitive.
Our discussion of the merits in Pizzuto I was prompted by

-- 17 of 36 --

18 CREECH V. T EWALT
Pizzuto’s then-pending execution and designed to guide the
parties on remand. See Pizzuto I, 997 F.3d at 906 n.15. We
couched our analysis in non-definitive terms, noting that
plaintiffs’ claims did not “appear” to be viable, id. at 907,
and that plaintiffs “may” be unable to amend the complaint
to state viable claims, id. at 906. Thus, we agree with Creech
that Pizzuto I did not definitively address whether plaintiffs
stated viable claims or whether amendment would be futile.
But Creech’s contention that the district court misconstrued
our discussion of the merits, and erred by doing so, is an
argument that we need not reach. The sole remaining issue
in this appeal is whether amendment of Creech’s claims
would be futile. And we review that question de novo. See
Kroessler v. CVS Health Corp., 977 F.3d 803, 807 (9th Cir.
2020).
III. Futility of Amendment
Turning to the crux of this appeal, we address Creech’s
contention that the district court erred by concluding that
amendment of his original nine claims would be futile.
“Dismissal with prejudice and without leave to amend is not
appropriate unless it is clear on de novo review that the
complaint could not be saved by amendment.” Eminence
Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir.
2003) (per curiam). We apply this standard to Creech’s
claims in the order in which they appear in the complaint.4
4 At oral argument, Creech’s counsel was unprepared to discuss futility
of amendment (although the parties had briefed the issue) and argued
that the issue was not before us. We disagree.

-- 18 of 36 --

CREECH V. T EWALT 19
A. Claim One: First Amendment Right of Access to
Government Proceedings and Records
Claim One asserted a violation of the public’s First
Amendment right of access to government proceedings and
records. The claim encompasses two legal theories—
(1) that Creech has a right to execution-related information
and (2) that his attorneys have certain rights of access prior
to and during his execution. We address these theories in
turn.
1. Access to Execution-Related Information
Creech’s contention that the public’s First Amendment
right of access to government proceedings and records
entitles him to execution-related information pertaining to
execution drugs and personnel is foreclosed by our decision
in First Amendment Coalition of Arizona, Inc. v. Ryan, 938
F.3d 1069 (9th Cir. 2019). There, plaintiffs asserted that “the
First Amendment right of access to governmental
proceedings entitles them to information regarding the
manufacturers, sellers, lot numbers, National Drug Codes,
and expiration dates of lethal-injection drugs, as well as
documentation regarding the qualifications of certain
execution team members.” Id. at 1078. We disagreed,
holding that “the First Amendment right of access to
governmental proceedings does not entitle the plaintiffs to
information regarding execution drugs and personnel.” Id.
at 1080. We explained:
Unlike the documents to which the public has
a right of access, the requested information is
not part of any official record of the execution
proceeding. It is simply information in the
government’s possession that would enhance

-- 19 of 36 --

20 CREECH V. T EWALT
the understanding of executions. But, as the
Supreme Court has stated, the First
Amendment does not “mandate[ ] a right of
access to government information or sources
of information within the government’s
control.”
Id. at 1079 (alteration in original) (quoting Houchins v.
KQED, Inc., 438 U.S. 1, 15 (1978) (plurality opinion)).
Creech argues that First Amendment Coalition is
distinguishable because the information sought in that case
was not part of any official record. Here, citing a provision
of the revised protocol requiring IDOC staff to “immediately
start a chain of custody document” when lethal injection
chemicals are obtained, Creech contends that “[t]he Revised
SOP at least arguably puts execution procedures into the
official record.” Opening Br. at 29.
We disagree. First, even if Creech’s argument were
accepted, it at most would give him access to the chain of
custody document in question, not to the broader array of
execution-related information he seeks. Second, Creech
cites no authority supporting the proposition that the chain
of custody document is subject to the public’s First
Amendment right of access merely because its creation is
called for by IDOC’s execution protocol. The chain of
custody document is more closely analogous to “judicial
conference notes” or “documents in [a] prosecutor’s
possession” (which are not subject to the public right of
access) than to “documents filed in certain judicial
proceedings” (which are). First Amend. Coal., 938 F.3d at
1079.

-- 20 of 36 --

CREECH V. T EWALT 21
In cases claiming a First Amendment right of access to
criminal proceedings, the Supreme Court has “emphasized
two complementary considerations”: (1) “whether the place
and process have historically been open to the press and
general public”; and (2) “whether public access plays a
significant positive role in the functioning of the particular
process in question.” Press-Enter. Co. v. Superior Ct. of
Cal. for the Cnty. of Riverside, 478 U.S. 1, 8 (1986). Here,
notwithstanding the significant positive role played by
public access to execution-related information, see Cal. First
Amend. Coal. v. Woodford, 299 F.3d 868, 876–77 (9th Cir.
2002), Creech has not alleged that the processes he seeks
access to have historically been open to the public. In
Woodford, we stated that “[t]he public and press historically
have been allowed to watch the condemned inmate enter the
execution place, be attached to the execution device and then
die.” Id. at 876. Creech points to no comparable history
respecting execution information.
In the alternative, Creech posits that the public has a right
of access to the information he seeks because that
information is “inextricably intertwined” with the execution
process. Opening Br. at 30. We again disagree. Although
we held in Woodford that the public enjoys a First
Amendment right to view “those ‘initial procedures’ that are
inextricably intertwined with the process of putting the
condemned inmate to death,” 299 F.3d at 877, we explained
in First Amendment Coalition that this right does not
encompass the kinds of execution-related information
Creech seeks here:
[Woodford] did not hold that there is a First
Amendment right to examine executions in
minute detail, such that witnesses could see

-- 21 of 36 --

22 CREECH V. T EWALT
the drug labels and the nametags of execution
team members. Nor did we hold that the
public is entitled to all information that is
“inextricably intertwined” with executions.
Woodford did not change the default rule that
the right of access “does not extend to every
piece of information that conceivably relates
to a governmental proceeding, even if the
governmental proceeding is itself open to the
public.”
First Amend. Coal., 938 F.3d at 1079–80 (quoting Wood v.
Ryan, 759 F.3d 1076, 1092 (9th Cir. 2014) (Bybee, J.,
dissenting), vacated, 573 U.S. 976 (2014)).
In the district court, Creech also argued that First
Amendment Coalition is distinguishable because in that case
Arizona at least disclosed the specific drug to be used in
executions, see First Amend. Coal., 938 F.3d at 1073–74,
while here the revised protocol fails to do so (though it
specifies four lethal injection alternatives). This argument is
unpersuasive because our holding did not turn on this
consideration.
2. Counsel’s Access
In Claim One, Creech also alleged that the public’s First
Amendment right of access to government proceedings
includes the CHU’s right to access and inspect the execution
chamber before the execution, witness the entire execution
procedure, and have access to cameras and phones during
the execution.
As for his attorneys’ right to “observe the entire
execution” and “view the insertion of the IV,” Opening Br.
at 31, we have long held that “the public enjoys a First

-- 22 of 36 --

CREECH V. T EWALT 23
Amendment right to view executions from the moment the
condemned is escorted into the execution chamber,
including those ‘initial procedures’ that are inextricably
intertwined with the process of putting the condemned
inmate to death.” Woodford, 299 F.3d at 877. Indeed, this
right of access “encompasses a right to hear the sounds of
executions in their entirety” as well. First Amend. Coal., 938
F.3d at 1075.
We allow Creech to assert this claim on remand. But we
note that Creech appears to be asserting the First
Amendment rights of others—his attorneys and the public
generally—rather than his own First Amendment right of
access. The parties have not briefed the issue of whether
Creech has standing to make this claim. If Creech elects to
pursue this claim on remand, the district court should address
whether Creech has standing to do so. See Sessions v.
Morales-Santana, 582 U.S. 47, 57 (2017) (“Ordinarily, a
party ‘must assert his own legal rights’ and ‘cannot rest his
claim to relief on the legal rights . . . of third parties.’”
(alteration in original) (quoting Warth v. Seldin, 422 U.S.
490, 499 (1975))).
In sum, we conclude that amendment of Claim One
would be futile except with respect to Creech asserting that
his attorneys have a right to observe the entire execution. On
Claim One, we affirm in part, vacate in part, and remand
with instructions to grant leave to amend Claim One as
specified above.5
5 Creech’s briefs make no mention of his claims that his attorneys have
a right to enter and inspect the execution chamber before any execution
or that his attorneys have a right to access cameras or phones during his
execution. These arguments are therefore abandoned. See Wilcox v.

-- 23 of 36 --

24 CREECH V. T EWALT
B. Claim Two: First Amendment Right of Access to
the Courts
Claim Two asserted that IDOC’s refusal to provide
plaintiffs with the execution-related information they seek
denies them their First Amendment right to petition the
government for redress of grievances, including the right of
access to the courts. Am. Compl. ¶¶ 515–16. We rejected a
virtually identical claim in First Amendment Coalition:
The Supreme Court has explained that the
First Amendment right of access to the courts
does not include the right of prisoners to
“discover grievances[ ] and to litigate
effectively once in court.” That is what the
inmates seek here. According to the Second
Amended Complaint, the inmates are seeking
access to execution sounds and information
regarding execution drugs and personnel in
order to discover whether they have a
colorable claim that their executions will be
carried out in violation of the Eighth and
Fourteenth Amendments. The First
Comm’r, 848 F.2d 1007, 1008 n.2 (9th Cir. 1988) (“Arguments not
addressed in a brief are deemed abandoned.”).
In Pizzuto I, we noted that, “[i]f plaintiffs wish their counsel to have
phones so that they can contact the court during executions, that claim
would be properly alleged under the First Amendment right of access to
courts.” 997 F.3d at 906. On remand, Creech is free to seek leave to
amend his complaint to assert such a claim, again leaving the issue of
standing to the district court. See Fed. R. Civ. P. 15(a)(2). We express
no opinion as to whether such leave, if sought, should be granted.

-- 24 of 36 --

CREECH V. T EWALT 25
Amendment right of access to the courts does
not entitle the inmates to such information.
938 F.3d at 1080–81 (alteration in original) (citation
omitted) (quoting Lewis v. Casey, 518 U.S. 343, 354 (1996)).
In his briefing, Creech offers no basis for distinguishing
First Amendment Coalition. We thus conclude that
amendment of this claim would be futile and affirm the
dismissal of this claim without leave to amend.
C. Claim Three: Deliberate Indifference to
Psychological Harm
Claim Three asserted that “[t]he immense mental anxiety
caused by the lack of clarity around the State’s execution
protocol triggers in the plaintiffs an intolerable, unnecessary,
and unconstitutional degree of psychological trauma and
anxiety, which amounts to an increase in the offender’s
punishment” and constitutes an “unnecessary and wanton
infliction of pain that is prohibited by the Eighth
Amendment.” Am. Compl. ¶ 532.
We have held that subjecting a prisoner to the
unnecessary and wanton infliction of psychological pain
constitutes cruel and unusual punishment under the Eighth
Amendment. See Jordan v. Gardner, 986 F.2d 1521, 1525–
30 (9th Cir. 1993) (en banc). To prevail on such a claim, a
plaintiff must show both “severe psychological pain,”
Watison v. Carter, 668 F.3d 1108, 1113 (9th Cir. 2012), and
wantonness.6 The mental state required to establish
6 A showing of severe psychological pain is required because some
psychological pain is an inherent aspect of living under a death sentence.
Cf. Bucklew v. Precythe, 139 S. Ct. 1112, 1124 (2019) (“[T]he Eighth
Amendment does not guarantee a prisoner a painless death—something

-- 25 of 36 --

26 CREECH V. T EWALT
wantonness under the Eighth Amendment “varies according
to the nature of the alleged constitutional violation.” Hudson
v. McMillian, 503 U.S. 1, 5 (1992). We conclude that a
showing of deliberate indifference is sufficient in this
context. Cf. Jordan, 986 F.2d at 1528 (holding that the
deliberate indifference standard applied to plaintiffs’ claim
that having male guards conduct random body searches of
female prisoners inflicted psychological pain in violation of
the Eighth Amendment). Under the deliberate indifference
standard, “a prison official cannot be found liable under the
Eighth Amendment for denying an inmate humane
conditions of confinement unless the official knows of and
disregards an excessive risk to inmate health or safety.”
Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Here, the complaint plausibly alleged neither severe
psychological pain nor that defendants acted with deliberate
indifference to Creech’s health. Am. Compl. ¶¶ 523–33.
And Creech has given us no reason to believe that these
that, of course, isn’t guaranteed to many people, including most victims
of capital crimes.”); Glossip v. Gross, 576 U.S. 863, 869 (2015)
(“[B]ecause some risk of pain is inherent in any method of execution, . . .
the Constitution does not require the avoidance of all risk of pain.”
(citing Baze v. Rees, 553 U.S. 35, 47 (2008) (plurality opinion))); Creech
v. Richardson, 59 F.4th 372, 394 (9th Cir. 2023) (“[N]either the Supreme
Court nor the Ninth Circuit has ever held that the duration of a death row
inmate’s confinement prior to execution amounts to cruel and unusual
punishment.” (citing Smith v. Mahoney, 611 F.3d 978, 998 (9th Cir.
2010))). Circumstances may occur, however, in which even this
demanding standard is satisfied. In McKenzie v. Day, 57 F.3d 1461,
1466 (9th Cir. 1995), opinion adopted, 57 F.3d 1493 (9th Cir. 1995) (en
banc), for example, we suggested that an Eighth Amendment claim
would be cognizable if a state “set up a scheme to prolong the period of
incarceration” or “rescheduled [an] execution repeatedly in order to
torture” an inmate.

-- 26 of 36 --

CREECH V. T EWALT 27
defects could be cured by amendment. We therefore hold
that amendment of this claim would be futile and affirm the
dismissal of this claim with prejudice.
D. Claim Four: Procedural Due Process
Claim Four asserted that defendants’ failure to provide
the execution-related information they seek “raises a
procedural barrier to challenging the constitutionality of
IDOC’s execution process,” in violation of the Due Process
Clause of the Fourteenth Amendment. Am. Compl. ¶ 537.
It alleged that “[w]ithout reliable information about the
manner in which the prisoner will be executed, the courts
cannot meaningfully review a state’s execution procedure to
ensure it complies with the commands of the Constitution.”
Id. ¶ 540. The complaint also cited the example of the
Leavitt execution, in which the State allegedly disclosed the
execution drug just eighteen days before the scheduled
execution. Id. ¶ 189–90.
Although other circuits to consider the issue have
rejected due process claims to execution-related
information, see Jones v. Comm’r, 811 F.3d 1288, 1295
(11th Cir. 2016); Phillips v. DeWine, 841 F.3d 405, 420 (6th
Cir. 2016); Zink v. Lombardi, 783 F.3d 1089, 1108–09 (8th
Cir. 2015) (en banc) (per curiam); Trottie v. Livingston, 766
F.3d 450, 452 (5th Cir. 2014) (per curiam), we have left open
the possibility that prisoners “may be able to assert a
procedural due process right to [such] information” when
they would otherwise be denied the opportunity to have an
Eighth Amendment method-of-execution challenge heard at
a meaningful time and in a meaningful manner. First
Amend. Coal., 938 F.3d at 1080 (citing Lopez v. Brewer, 680
F.3d 1068, 1083–84 (9th Cir. 2012) (Berzon, J., concurring
in part and dissenting in part) (concluding that an inmate

-- 27 of 36 --

28 CREECH V. T EWALT
“has a liberty interest in avoiding a mode of execution that
constitutes cruel and unusual punishment” and a “procedural
due process right to have his Eighth Amendment challenge
heard at a meaningful time in a meaningful manner”)); Beaty
v. Brewer, 649 F.3d 1071, 1072 (9th Cir. 2011) (order) (“We
acknowledge that Beaty has a strong interest in being
executed in a constitutional manner . . . .”); see also
Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (“The
fundamental requirement of due process is the opportunity
to be heard ‘at a meaningful time and in a meaningful
manner.’” (quoting Armstrong v. Manzo, 380 U.S. 545, 552
(1965))).
In Pizzuto I, we were skeptical that any such claim could
succeed here, in part because Idaho had “issued an execution
protocol well in advance of any death warrant in this case”
and there was then “no indication the state w[ould] deviate
from the procedures outlined in the revised SOP.” 997 F.3d
at 907. Since then, however, Idaho has twice scheduled
executions and suspended the revised protocol, raising some
doubts about whether a prisoner will be able to have an
Eighth Amendment method-of-execution challenge heard at
a meaningful time and in a meaningful manner. See Pizzuto
v. IDOC, 508 P.3d 293, 297 (Idaho 2022) (“A lethal injection
procedure published in advance of an execution allows a
condemned person and his counsel to ensure that the
execution will meet constitutional standards and to challenge
the protocol if they believe it will not.”). Creech also points
out that even if the protocol is followed, it does not identify
the drug or drugs to be used in a particular execution,
although it sets out four lethal injection alternatives.
Under these circumstances, and given the intervening
events that postdate our decision in Pizzuto I and the district
court’s dismissal of this claim, we conclude that Creech

-- 28 of 36 --

CREECH V. T EWALT 29
should be given a chance to amend this claim. See 5B
Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 1357 (3d ed. 2023) (“A wise judicial
practice would be to allow at least one amendment
regardless of how unpromising the initial pleading appears
because it usually is unlikely that the district court will be
able to determine conclusively on the face of a defective
pleading whether the plaintiff actually can state a claim for
relief.”). But we express no opinion on whether such a due
process right exists, or even if it does exist, whether it would
apply here. We vacate the dismissal of this claim with
prejudice and remand with instructions to grant leave to
amend or supplement the complaint. See Fed. R. Civ. P.
15(a)(2), (d).7
E. Claim Five: Equal Protection
Claim Five asserted that “IDOC has established a pattern
and practice of essentially creating a new protocol for each
7 Our decision to remand arises in part from factual developments
postdating the district court’s judgment. We have the discretion to
remand in light of such factual changes when justice requires. See
Walling v. James V. Reuter, Inc., 321 U.S. 671, 676 (1944) (“When
events subsequent to an appeal may affect the correctness of the
judgment appealed from, this Court may vacate the judgment and
remand the cause for further proceedings.”); Pendergrast v. United
States, 416 F.2d 776, 781 (D.C. Cir. 1969) (“[I]n determining what
justice does require, the Court is bound to consider any change, either in
fact or law, which has supervened since the judgment was entered.”
(quoting Patterson v. Alabama, 294 U.S. 600, 607 (1935))); see also 28
U.S.C. § 2106 (“The Supreme Court or any other court of appellate
jurisdiction may affirm, modify, vacate, set aside or reverse any
judgment, decree, or order of a court lawfully brought before it for
review, and may remand the cause and direct the entry of such
appropriate judgment, decree, or order, or require such further
proceedings to be had as may be just under the circumstances.”).

-- 29 of 36 --

30 CREECH V. T EWALT
condemned inmate as soon as his execution is imminent,”
and thus that “inmates are not treated consistently with one
another in regards to their executions.” Am. Compl. ¶¶ 546–
47. The complaint alleged that this differential treatment
violates the Equal Protection Clause of the Fourteenth
Amendment. Id. ¶¶ 542–52.
In Pizzuto I, we faulted this claim on the ground that the
complaint alleged only differential treatment, not the
detrimental treatment required to state an equal protection
claim in this context:
In Towery v. Brewer, 672 F.3d 650 (9th Cir.
2012) (per curiam), we held that “[a]bsent
any pattern of generally exercising the
discretion in a particular manner while
treating one individual differently and
detrimentally, there is no basis for Equal
Protection scrutiny under the class-of-one
theory.” Id. at 660–61 (emphasis in original).
Plaintiffs allege only that they are being
treated differently, not that they are “being
treated less favorably than others generally
are.” Id. at 661.
997 F.3d at 907 (alteration in original). That reasoning
remains sound: to establish an equal protection claim in this
context, a plaintiff must show that prison officials “treat[]
prisoners differently in ways that . . . affect the risk of pain
to which they would be subjected, and therefore the risk of
being subjected to cruel and unusual punishment.” Towery,
672 F.3d at 660.
Creech acknowledges that detrimental treatment is
required but argues that he has made the requisite showing

-- 30 of 36 --

CREECH V. T EWALT 31
because “his unique physical ailments . . . substantially
increase the possibility that the Warden’s discretion will be
exercised detrimentally against him.” Opening Br. at 37.8
Creech, however, has not alleged that defendants would treat
him less favorably than other inmates. Cf. Arthur v. Thomas,
674 F.3d 1257, 1262–63 (11th Cir. 2012) (per curiam)
(holding that plaintiff stated an equal protection claim where
he alleged that the state deviated from its lethal injection
protocol by failing to conduct a consciousness test, thus
increasing the risk of an unconstitutionally painful
execution). He alleges only that he may suffer a less
favorable outcome because of his personal medical
condition. This is inadequate to state an equal protection
claim.
We conclude that amendment of this claim would be
futile and affirm the dismissal of this claim with prejudice.
F. Claim Six: Statutory Right to Counsel
Federal law provides for the appointment of counsel to
an indigent defendant in “any post conviction proceeding [in
federal court] seeking to vacate or set aside a death
sentence.” 18 U.S.C. § 3599(a)(2). It also provides that
“[u]nless replaced by similarly qualified counsel upon the
attorney’s own motion or upon motion of the defendant, each
attorney so appointed . . . shall also represent the defendant
8 The complaint alleged that Creech suffers from brain damage; a history
of migraine headaches; neuropsychological deficits indicative of brain
dysfunction; a history of head injuries; type II diabetes; hyperlipidemia;
hypertension; edema; lower back pain; and mental health conditions
including major depression. Am. Compl. ¶¶ 458–77. It also alleged that
Creech has been prescribed medications that might interact with lethal
injection drugs, complicating his execution. Id. ¶¶ 478–79.

-- 31 of 36 --

32 CREECH V. T EWALT
in such . . . proceedings for executive or other clemency as
may be available to the defendant.” Id. § 3599(e).
Claim Six alleged that Creech’s counsel was appointed
under § 3599, that counsel will represent Creech in state
clemency proceedings, and that counsel is hampered in
seeking clemency by defendants’ failure to provide
information about the way Creech will be executed. Am.
Compl. ¶¶ 553–77. According to the complaint, “[t]he CHU
cannot make an argument to the executive in support of
clemency about problems with the State’s plans for
executions if the defendants tell them essentially nothing
about those plans,”—“[i]n this way, the defendants’ actions
have deprived the plaintiffs of their federal statutory right to
the assistance of counsel in pursuing clemency.” Id. ¶¶ 576–
77.
In Pizzuto I, we explained that this claim lacked merit
because § 3599 “does not ‘empower the court to order third-
party compliance’ to aid plaintiff’s counsel in seeking
clemency.” 997 F.3d at 908 (quoting Leavitt v. Arave, 682
F.3d 1138, 1141 (9th Cir. 2012) (per curiam)). Creech does
not challenge that reasoning in his briefing. We thus hold
that amendment of this claim would be futile and affirm the
dismissal with prejudice.
G. Claim Seven: Separation of Powers Under the
Idaho Constitution
Claim Seven asserted that Idaho violates the separation
of powers under the Idaho Constitution because the Idaho
Legislature has delegated the responsibility for crafting
execution procedures to IDOC without providing sufficient
legislative guidance. Am. Compl. ¶¶ 578–603; see Idaho
Code § 19-2716. In Pizzuto I, 997 F.3d at 907–08, we noted
that the Supreme Court of Idaho had “soundly rejected” a

-- 32 of 36 --

CREECH V. T EWALT 33
virtually identical claim in State v. Osborn, 631 P.2d 187,
201 (Idaho 1981).
Creech posits that this case is distinguishable because the
record in Osborn:
did not contain the same allegations present
here: Plaintiffs made extensive allegations
about why IDOC needs greater legislative
oversight in this area, including that state
officials have sourced execution drugs in a
questionable manner from dubious sources;
that they have deliberately delayed the
announcement of execution plans until the
eleventh hour to make it impossible for
inmates to vindicate their rights to judicial
review; and that they have engaged in
deceptive practices to hide their handling of
executions from the public.
Opening Br. at 38. Nothing in the Supreme Court of Idaho’s
broad ruling, however, turned on the factual record in the
case or the context-specific need for “legislative oversight.”
See Osborn, 631 P.2d at 201. We thus hold that amendment
of this claim would be futile and affirm the dismissal with
prejudice.
H. Claim Eight: Violation of Idaho Code § 19-2716
Claim Eight asserted that IDOC’s failure to issue a
revised protocol violated the IDOC’s obligation under Idaho
Code § 19-2716 to “determine the procedures to be used in
any execution.” Am. Compl. ¶¶ 604–07 (quoting Idaho
Code § 19-2716). IDOC’s issuance of a revised protocol in
March 2021 mooted this claim. See Pizzuto I, 997 F.3d at

-- 33 of 36 --

34 CREECH V. T EWALT
905. The district court therefore properly dismissed this
claim without leave to amend.9
I. Claim Nine: Eighth Amendment Claim Based on
a Substantial Risk of Serious Harm
Claim Nine asserted that “IDOC’s refusal to provide any
meaningful information to the plaintiffs about their
executions” creates “a substantial risk that the plaintiffs will
be subjected to severely painful executions, in violation of
the Eighth Amendment,” because defendants’ actions
“prevent[] the CHU from taking steps to ensure that such
executions are carried out humanely.” Am. Compl. ¶¶ 609,
611.
Creech does not identify the legal framework under
which this ostensible Eighth Amendment claim falls. The
claim appears to be most analogous to an Eighth
Amendment method-of-execution claim. To prevail on such
a claim, a plaintiff must establish that the challenged
execution method creates “a substantial risk of severe pain.”
Glossip, 576 U.S. at 882. The complaint alleges that Creech
suffers from several physical and mental health conditions,
including brain damage. Am. Compl. ¶¶ 458–77. It states
that, “[a]s a result of his physical and psychological
conditions, Mr. Creech has been prescribed . . . twenty-two
different medications within the last two years.” Id. ¶ 478.
The complaint also alleges that “[b]rain damage elevates the
risk that Mr. Creech would have an atypical reaction to an
9 On remand, the district court should clarify that the dismissal of this
claim is without prejudice. See Frigard v. United States, 862 F.2d 201,
204 (9th Cir. 1988) (per curiam) (“Ordinarily, a case dismissed for lack
of subject matter jurisdiction should be dismissed without prejudice
. . . .”); accord Guzman v. Polaris Indus. Inc., 49 F.4th 1308, 1314 (9th
Cir. 2022).

-- 34 of 36 --

CREECH V. T EWALT 35
execution drug” and that “the use of certain lethal injection
chemicals might complicate Mr. Creech’s execution as a
result of his medications.” Id. ¶¶ 467, 479.
Given Creech’s health conditions and medications, as
well as the liberal policy favoring amendment, we conclude
that Creech should be afforded the opportunity to amend this
claim. We thus vacate the dismissal of this claim with
prejudice and remand with instructions to grant leave to
amend.10
IV. House Bill 658
House Bill 658, adopted while this appeal was pending,
shields from disclosure the identities of individuals serving
on execution teams or involved in the procurement,
handling, or use of lethal injection drugs. See Idaho Code
§§ 19-2716A(4), 74-105(20). Creech asks us to remand this
case to the district court to allow him to amend or
supplement his claims to challenge these new restrictions.
Because we remand on other grounds, we allow Creech, on
remand, to seek leave to amend or supplement his pleadings
in accord with Rule 15, to assert such claims. We express
no opinion on whether such leave should be granted.
CONCLUSION
The judgment of the district court is affirmed in part and
vacated in part, and the case is remanded to the district court
with instructions to grant Creech leave to amend or
supplement Claims One, Four, and Nine as set forth above.
Consistent with this opinion, and consistent with our
affirming the district court’s determination that amendment
of certain claims would be futile, Creech may seek leave to
10 We express no view on the merits of such a claim.

-- 35 of 36 --

36 CREECH V. T EWALT
amend in other respects in accordance with Rule 15. We do
not decide whether such leave should be granted.11
AFFIRMED IN PART; VACATED IN PART;
REMANDED.
The mandate shall issue forthwith.
11 Creech’s unopposed motion for judicial notice (Dkt. 30) is
GRANTED. The parties shall bear their own costs on appeal.

-- 36 of 36 --