Cooper

Kevin Cooper, a California death row inmate whose execution is scheduled for Tuesday, February 10, 2004 at 12:01 a.m., appeals the district court’s order denying his motions for temporary restraining order and preliminary injunction, and for expedited discovery, in his action pursuant to 42 U.S.C. § 1983 against Richard A. Rimmer, Acting Director of the California Department of Corrections, and Jeanne S. Woodford, Warden of California State Prison at San Quentin (collectively, Woodford). Cooper’s action seeks to prevent Woodford from executing him in accordance with California’s lethal injection protocol in violation of his Eighth Amendment right to be free from cruel and unusual punishment. He also makes an emergency motion to stay the execution date. We affirm the district court, and deny the motion.

I

Cooper filed this action on February 2, 2004. The district court held a hearing on February 5, and rendered its decision February 6. The court found that Cooper had brought his challenge at the eleventh hour. It noted that the Supreme Court stated in Gomez v. United States District Court for the Northern District of California, 503 U.S. 653, 653-54 , 112 S.Ct. 1652 , 118 L.Ed.2d…