Cooper

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…

ORDER

The opinion filed February 8, 2004, 358 F.3d 655 , is amended to include Judge Browning’s concurrence.

OPINION

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, Wood-ford). 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.

*1031 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…