holding that the plaintiff had failed to meet his burden of “showing that he is subject to an unnecessary risk of unconstitutional pain and suffering”
How later courts described this case
- holding that the plaintiff had failed to meet his burden of “showing that he is subject to an unnecessary risk of unconstitutional pain and suffering”
- affirming the denial of last-minute equitable relief in § 1983 action challenging state's three-chemical protocol for execution by lethal injection
- noting that undue delay is a proper consideration for the balance of the equities
Written by the judges who cited it.
The opinion
BROWNING, Circuit Judge,
concurring:
Appellate review of the grant or denial of preliminary injunctive relief requires *1034 consideration of the merits of the underlying issue, but it does not decide them. Roe v. Anderson, 134 F.3d 1400, 1402 (9th Cir.1998); Southwest Voter Registration Educ. Project v. Shelley, 344 F.3d 914 , 918 (9th Cir.2003) (en banc). To obtain such relief, “the moving party must show either (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships tips in its favor.” Roe, 134 F.3d at 1402 (internal quotation marks omitted). We review for abuse of discretion the district court’s decision to grant or deny a preliminary injunction or temporary restraining order. Id. “Our review is limited and deferential.” Southwest Voter, 344 F.3d at 918. We determine only whether “the district court employed the appropriate legal standards governing the issuance of a preliminary injunction, and correctly apprehended the law with respect to the issues underlying the litigation.” Cal. Prolife Council Political Action Comm. v. Scully, 164 F.3d 1189 , 1190 (9th Cir.1999).
Here, the district court relied on the correct standards for both issuance of a preliminary injunction and the underlying constitutional issue. We determine only that the district court did not abuse its discretion in applying the law to the factual record before it. Our decision under this standard of review does not necessarily reflect our independent view of the evidence, for we are “not empowered to substitute[our] judgment” for. the district court’s. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 , 91 S.Ct. 814 , 28 L.Ed.2d 136 (1971); accord Sports Form, Inc. v. United Press Int’l, Inc., 686 F.2d 750, 752 (9th Cir.1982). If the district court’s decision relied on the correct law, its grant or denial of preliminary injunctive relief “will not be reversed simply because the appellate court would have arrived at a different result had it applied the law to the facts of the case. Rather, the appellate court will reverse only if the district court abused its discretion.” Sports Form, 686 F.2d at 752 .
Our review of the district court’s merits decision — if it is appealed — will be more rigorous. Applying a de novo standard of review, we will assess for ourselves whether “the evolving standards of decency that mark the progress of a maturing society,” Trop v. Dulles, 356 U.S. 86, 101 , 78 S.Ct. 590 , 2 L.Ed.2d 630 (1958), require lethal injection procedures different from those California currently employs. See Campbell v. Wood, 18 F.3d 662, 681-82 (9th Cir.1994) (en banc). Our decision may not reach the same conclusion as today’s, “[b]ecause of the limited scope of our [current] review of the law applied by the district court and because the fully developed factual record may be materially different from that initially before the district court .... ” Sports Form, 686 F.2d at 753 . Neither the district court nor the parties should read today’s decision as more than a preliminary assessment of the merits.