CALLAHAN, Circuit Judge:
Plaintiff Daniel Wayne Cook ("Cook"), an Arizona prisoner scheduled for execution on April 5, 2011, filed this action for equitable, injunctive and declaratory relief under 42 U.S.C. § 1983 ("§ 1983") against Janice Brewer, Governor of Arizona, as well as Charles Ryan, Ernest Trujillo, and Carson McWilliams, who are Arizona Department of Corrections ("ADC") officials (collectively, "Defendants"). The district court granted Defendants' motion to dismiss for failure to state a claim upon which relief may be granted under Fed. R.Civ.P. 12(b)(6) ("Rule 12(b)(6)"). On appeal, Cook challenges the district court's decisions regarding two of his Eighth Amendment claims.
Cook is scheduled for execution on April 5, 2011, for his role in two 1987 murders in Lake Havasu City, Arizona. State v. Cook, 170 Ariz. 40, 821 P.2d 731, 738 (1991). Cook and his roommate tortured, sodomized and killed Carlos Cruz Ramos and Kevin Swaney. Id. at 736-37. A jury thereafter convicted him of two counts of first-degree murder and the court sentenced him to death under Arizona Revised Statutes §§ 13-503 and 13-703. Id. at 737-38.
After the Arizona courts denied appellate and post-conviction relief, Cook filed a petition for writ of habeas corpus, which the district court denied and we thereafter affirmed. Cook v. Schriro, 538 F.3d 1000 (9th Cir.2008), cert. denied ___ U.S. ___, 129 S.Ct. 1033, 173 L.Ed.2d 301 (2009). On November 10, 2010, after the State sought a warrant of execution, Cook filed this § 1983 action in which he raised several claims related to the State's use of sodium thiopental, one of three drugs used as part of execution by lethal injection. The district court subsequently granted Defendants' Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted. Cook then timely filed this appeal.
We review de novo a district court's order granting a motion to dismiss under Rule 12(b)(6). Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir.2010). A pleading must include a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). "[T]he pleading standard Rule 8 announces does not require `detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "[A] plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (internal quotation marks omitted).
"A Rule 12(b)(6) motion tests the legal sufficiency of a claim. A claim may be dismissed only if `it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
For a capital prisoner to establish an Eighth Amendment claim for exposure to future harm of severe pain constituting cruel and unusual punishment from an execution method, he is required to show that "the conditions presenting the risk must be 'sure or very likely to cause serious illness and needless suffering,' and give rise to `sufficiently imminent dangers.'" Baze v. Rees, 553 U.S. 35, 50, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) (Roberts, C.J., plurality opinion) (quoting Helling v. McKinney, 509 U.S. 25, 33, 34-35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993)).
Because Cook committed his crimes before November 23, 1992, he has the choice to be executed by either lethal injection or lethal gas. See Ariz.Rev.Stat. § 13-757(B). Cook has not yet chosen a method of execution, and if he does not make a choice, the ADC must use lethal injection to execute him. Id.
Arizona's protocol for execution by lethal injection requires the sequential administration of sodium thiopental, pancuronium bromide, and potassium chloride. Dickens, 631 F.3d at 1142.
Underlying Cook's claims is the fact that Arizona has obtained sodium thiopental from a foreign source, rather than from the United States. In his reply brief, Cook summarizes the five allegations raised in his Complaint, which he asserts we must take as true. First, he alleges that the ADC "lacks the appropriate safeguards to ensure the imported substance it obtained is not contaminated, is viable, and is actually sodium thiopental." Second, "the substance was obtained in violation of federal law." Third, "a foreign-manufactured drug was produced in an environment such that the drug may not be effective, and that the drug could be contaminated or compromised." Fourth, "drugs from foreign countries do not have the same assurance of safety as drugs actually regulated by the FDA, due to the risk that counterfeit or unapproved drugs will be sent to consumers and also because without regulation of repackaging, storage conditions, and many other factors, drugs delivered to the American public from foreign countries may be very different from FDA approved drugs with respect to formulation, potency, quality, and labeling"
Cook contends that the district court erred in granting Defendants' motion to dismiss for two reasons. First, he argues that the foreign manufactured non-FDA approved sodium thiopental may be "contaminated, compromised, or otherwise ineffective, such that it will not properly anesthetize him" or "might not actually be sodium thiopental at all" and that "using an unapproved substance from an unknown manufacturer in an execution gives rise to a substantial risk of unconstitutional pain" in violation of the Eighth Amendment. Second, Cook contends that the administration of "an unapproved substance from an unknown manufacturer in an execution by medical professionals constitutes deliberate indifference" to his right to be free from cruel and unusual punishment in violation of the Eighth Amendment.
At issue for both of these claims is whether Cook has sufficiently satisfied, to survive a motion to dismiss, Rule 8(a)'s pleading requirements to state facially plausible claims that the drug the ADC has obtained is "sure or very likely to cause serious illness and needless suffering" in violation of his Eighth Amendment right to be free from cruel and unusual punishment. See Baze, 553 U.S. at 50, 128 S.Ct. 1520; see also Iqbal, 129 S.Ct. at 1949 (pleading standard). We conclude that Cook's allegations fail to meet this standard.
While the pleading standard for Rule 8(a) is liberal, the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 127 S.Ct. 1955. In Iqbal, the Court noted that "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955).
Cook's allegations that foreign manufactured non-FDA approved drugs "may not be effective," "could be contaminated or compromised," and "may be very different from FDA approved drugs with respect to formulation, potency, quality, and labeling" are all speculative and overly generalized claims applicable to every drug produced outside the United States. Cook does not make any specific allegations about the manufacturing process, formulation, potency, quality, or labeling of the drug at issue here. Cook also fails to allege any facts to support his claim that the drug might not actually be sodium thiopental or that it could be contaminated, compromised, or otherwise substandard such that it may not effectively anesthetize him and cause him unconstitutional pain when the next two drugs are administered. Id. Cook's allegation that the ADC lacks appropriate safeguards to ensure the sodium thiopental it obtained "is not contaminated, is viable, and is actually sodium thiopental" is also conclusory and without any supporting factual allegations. Moreover, Cook's assertion that "the substance was obtained in violation of federal law" is again speculative and Cook has not made a sufficient showing that the lack of FDA approval of the sodium thiopental at issue here makes it sufficiently likely that the sodium thiopental is either not what it purports to be, or is otherwise adulterated.
Cook distinguishes Landrigan on the grounds that it involved a preliminary injunction, whereas the instant case involves a motion to dismiss. Thus, while Landrigan had to provide enough evidence to make success on his claim "likely," Cook only needs to allege enough facts to make his claim "plausible." Nevertheless, the Court in Landrigan found "no evidence in the record to suggest that the drug obtained from a foreign source is unsafe." Id. This statement clearly implies that the facts that Arizona's sodium thiopental is imported and non-FDA approved do not themselves constitute evidence of danger. Thus, in this case, Cook's bare allegations that the sodium thiopental is imported and non-FDA approved, even taken as true, do not plausibly suggest that the drug is "sure or very likely to cause serious illness and needless suffering" or otherwise creates a "substantial risk of serious harm" in violation of Cook's Eighth Amendment right to be free from cruel and unusual punishment sufficient to survive a motion to dismiss. Baze, 553 U.S. at 50, 128 S.Ct. 1520; see also Iqbal, 129 S.Ct. at 1949.
We also reject any claim Cook makes that the administration of the allegedly incorrect, diluted or adulterated drug would cause him excruciating pain when the other two drugs are administered.
Id. at 1143.
Nothing in Cook's Complaint suggests that, even if he were to receive a substance that was not sodium thiopental, or was
Cook's second claim is dependant on the sufficiency of his first claim. Cook argues that the medical professionals who would administer the foreign-manufactured non-FDA approved substance would know that administering this drug involves substantial risks and that by administering the drug they would demonstrate deliberate indifference to his medical needs. However, because Cook fails to make a facially plausible claim that the sodium thiopental at issue here is "sure or very likely to cause serious illness and needless suffering," or otherwise creates a "substantial risk of serious harm" he cannot show that the medical officials administering the drug would be medically indifferent. Id.
Because Cook has failed to demonstrate that the district court erred as to either of his claims, the judgment of the district court is