In the United States Court of Appeals for the 9th Circuit, the Court took on Cook v. Brewer, No. 11-5303 (3/16/11) (O'Callahan with O'Scannlain and Graber). Petitioner filed a 1983 action challenging the use of foreign manufactured FDA unauthorized sodium thiopental, one of the lethal drugs used for execution. The 9th affirmed the district court's
dismissal of the claim for failure to state a claim pursuant to Fed R. Civ Pro 12(b)(6). The claim alleged that Arizona's use of the drug, imported from a foreign source, was obtained in violation of federal law and could be contaminated, unsafe and not even be the drug. The claim alleged that as a result, using such drug would inflict cruel and unusual punishment. The 9th concluded that the claims were made with
insufficient bases saying they were speculative and conclusory, and failed to state a claim under Blaze. The decesion came out the day after the DEA raided the State of Georgia to
seize sodium thiopental for illegal importation, and the day that Texcas declared it would
no longer use its store of sodium thiopental.