Page:Glossip v. Gross.pdf/105

 Cite as: 576 U. S. ____ (2015)

9

SOTOMAYOR, J., dissenting

D The District Court denied petitioners’ motion for a preliminary injunction. It began by making a series of factual findings regarding the characteristics of midazo­ lam and its use in Oklahoma’s execution protocol. Most relevant here, the District Court found that “[t]he proper administration of 500 milligrams of midazolam. . . would make it a virtual certainty that an individual will be at a sufficient level of unconsciousness to resist the noxious stimuli which could occur from the application of the second and third drugs.” Id., at 77. Respecting petition­ ers’ contention that there is a “ceiling effect which pre­ vents an increase in dosage from having a corresponding incremental effect on anesthetic depth,” the District Court concluded: “Dr. Evans testified persuasively. . . that whatever the ceiling effect of midazolam may be with respect to anesthesia, which takes effect at the spinal cord level, there is no ceiling effect with respect to the ability of a 500 milligram dose of midazolam to effectively para­ lyze the brain, a phenomenon which is not anesthesia but does have the effect of shutting down respiration and eliminating the individual’s awareness of pain.” Id., at 78. Having made these findings, the District Court held that petitioners had shown no likelihood of success on the merits of their Eighth Amendment claim for two inde­ pendent reasons. First, it determined that petitioners had “failed to establish that proceeding with [their] execu­ tion[s]. . . on the basis of the revised protocol presents. . . ‘an objectively intolerable risk of harm.’ ” Id., at 96. Sec­ ond, the District Court held that petitioners were unlikely to prevail because they had not identified any “ ‘known and available alternative’ ” means by which they could be executed—a requirement it understood Baze to impose.