Thomas Creech v. Josh Tewalt

Summary

The Ninth Circuit addressed an Idaho death row inmate's challenge to the state's execution secrecy, focusing on the district court's denial of leave to amend. The court affirmed the dismissal of claims seeking execution drug information under the First Amendment (citing *First Amendment Coalition of Arizona v. Ryan*), as well as equal protection, psychological harm, and separation of powers claims, as futile. The court vacated dismissal of the procedural due process claim (Claim 4), the substantial risk of severe pain claim under the Eighth Amendment (Claim 9), and the claim regarding counsel's right to view the entire execution (part of Claim 1), holding these could potentially be cured by amendment. The court also held that the district court did not violate the rule of mandate by sua sponte dismissing the claims and addressing futility on remand.

Holdings

1. The district court did not violate the rule of mandate because the mandate did not foreclose such action; futility of amendment was not addressed in the prior appeal.
2. Amendment of Claim One is futile except with respect to the claim that Creech's attorneys have a right to observe the entire execution.
3. Amendment of Claim Two is futile.
4. Amendment of Claim Three is futile.
5. Amendment of Claim Four is not futile; the claim is remanded for leave to amend.
6. Amendment of Claim Five is futile.
7. Amendment of Claim Six is futile.
8. Amendment of Claim Seven is futile.
9. Amendment of Claim Eight is moot; the claim is dismissed without prejudice.
10. Amendment of Claim Nine is not futile; the claim is remanded for leave to amend.

Questions Presented

1. Whether the district court violated the rule of mandate by sua sponte dismissing the complaint and denying leave to amend.
2. Whether amendment of Claim One (First Amendment right of access to government proceedings and records) would be futile.
3. Whether amendment of Claim Two (First Amendment right of access to courts) would be futile.
4. Whether amendment of Claim Three (Eighth Amendment deliberate indifference to psychological harm) would be futile.
5. Whether amendment of Claim Four (procedural due process) would be futile.
6. Whether amendment of Claim Five (equal protection) would be futile.
7. Whether amendment of Claim Six (statutory right to counsel) would be futile.
8. Whether amendment of Claim Seven (separation of powers under Idaho Constitution) would be futile.
9. Whether amendment of Claim Eight (violation of Idaho Code § 19-2716) would be futile.
10. Whether amendment of Claim Nine (Eighth Amendment substantial risk of serious harm) would be futile.

Disposition

other