Petition for Writ of Certiorari — Russell Bucklew, Petitioner v. Anne L. Precythe, Director, Missouri Department of Corrections, et al.
Supreme Court briefMar 15, 2018
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No. 17IN THE
Supreme Court of the United States
___________
RUSSELL BUCKLEW,
v.
ANNE PRECYTHE, et al.,
___________
Petitioner,
Respondents.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Eighth Circuit
___________
PETITION APPENDIX
___________
EXECUTION SCHEDULED FOR MARCH 20, 2018
___________
CHERYL A. PILATE
MORGAN PILATE LLC
926 Cherry Street
Kansas City, MO 64106
(816) 471-6694
ROBERT N. HOCHMAN *
RAECHEL J. BIMMERLE
KELLY J. HUGGINS
MATTHEW J. SALDAÑA
HEATHER B. SULTANIAN
DANIEL R. THIES
SIDLEY AUSTIN LLP
One South Dearborn Street
Chicago, IL 60603
(312) 853-7000
rhochman@sidley.com
Counsel for Petitioner
March 15, 2018
* Counsel of Record
TABLE OF CONTENTS
Page
APPENDIX A: Bucklew v. Precythe, No. 173052 (8th Cir. Mar. 15, 2018) ............................
1a
APPENDIX B: Bucklew v. Precythe, No. 173052, 2018 WL 1163360 (8th Cir. Mar. 6,
2018) ...................................................................
3a
APPENDIX C: Bucklew v. Lombardi, No. 148000-CV-W-BP (W.D. Mo. June 15, 2017) ........ 26a
APPENDIX D: Bucklew v. Lombardi, No. 148000-CV-W-BP (W.D. Mo. Aug. 21, 2017) ........ 39a
APPENDIX E: Bucklew v. Lombardi, No. 148000-CV-W-BP (W.D. Mo. Aug. 11, 2017) ........ 44a
APPENDIX F: Bucklew v. Lombardi, No. 148000-CV-W-BP (W.D. Mo. Apr. 11, 2017) ......... 53a
APPENDIX G: Bucklew v. Lombardi, No. 142163 (8th Cir. Mar. 6, 2015) .............................. 72a
APPENDIX H: Affidavit of Alana Boyles ........... 89a
APPENDIX I: Hamm Expert Report .................. 91a
APPENDIX J: Zivot Supplemental Report ......... 106a
APPENDIX K: Medial Summary ........................ 144a
APPENDIX L: Missouri Execution Protocol ....... 145a
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No: 17-3052
Russell Bucklew
Appellant
v.
Anne L. Precythe, Director of the Department of Corrections, et al.
Appellees
______________________________________________________________________________
Appeal from U.S. District Court for the Western District of Missouri - Kansas City
(4:14-cv-8000-BP)
______________________________________________________________________________
ORDER
Before SMITH, Chief Judge, WOLLMAN, LOKEN, COLLOTON, GRUENDER, SHEPHERD,
KELLY, ERICKSON, GRASZ and STRAS, Circuit Judges.
Appellant Bucklew’s petition for rehearing by panel is denied. Judge Colloton would
grant the petition for rehearing by panel.
Appellant Bucklew’s petition for rehearing en banc has been considered by the court and
the petition is denied. Chief Judge Smith and Judge Kelly would grant the petition. Judge
Colloton and Judge Gruender would grant rehearing en banc on Point I of the petition for
rehearing en banc.
Judge Duane Benton took no part in the consideration or decision of the petition for
rehearing en banc.
KELLY, Circuit Judge, dissenting from the denial of the petition for rehearing en banc.
I would grant Russell Bucklew’s petition for rehearing en banc—and reverse the district
court’s grant of summary judgment—for the reasons stated in the dissent from the panel opinion
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in this case. See Bucklew v. Precythe, ___ F.3d ___, 2018 WL 1163360, at *7 (8th Cir. 2018)
(Colloton, J., dissenting). I would also grant Bucklew’s petition to the extent it seeks
reconsideration of this court’s conclusion, in Bucklew v. Lombardi, 783 F.3d 1120, 1128 (8th
Cir. 2015) (en banc), that those sentenced to death must plead a “feasible, readily implemented
alternative procedure” for carrying out their sentence in order to state a plausible as-applied
claim under the Eighth Amendment. I continue to believe that “[f]acial and as-applied
challenges to execution protocols are different,” that death row inmates “need not plead a readily
available alternative method of execution” to bring an as-applied challenge, and that “[a] state
cannot be excused from taking into account a particular inmate’s existing physical disability or
health condition when assessing the propriety of its execution method.” See id. at 1129 (Bye, J.,
concurring in the result). “While the Supreme Court has been clear on the general proposition
that, so long as a state-imposed death penalty is constitutional, there must be some way for states
to carry out executions, the Supreme Court has also been clear that some individuals cannot be
executed.” Id. at 1130 (collecting cases); see also Madison v. Alabama, 138 S. Ct. ___, 2018
WL 514241 (Feb. 26, 2018); Dunn v. Madison, 138 S. Ct. 9, 12 (2017) (Ginsburg, J.,
concurring). In my view, neither Glossip v. Gross, 135 S. Ct. 2726 (2015), nor any subsequent
case from the United States Supreme Court dictates the result this court reached on this issue in
Bucklew v. Lombardi, 783 F.3d 1120 (8th Cir. 2015) (en banc).
March 15, 2018
Order Entered at the Direction of the Court:
Clerk, U.S. Court of Appeals, Eighth Circuit.
____________________________________
/s/ Michael E. Gans
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-3052
___________________________
Russell Bucklew
lllllllllllllllllllll Plaintiff - Appellant
v.
Anne L. Precythe, Director of the Department of Corrections, et al.
lllllllllllllllllllll Defendants - Appellees
____________
Appeal from United States District Court
for the Western District of Missouri - Kansas City
____________
Submitted: February 2, 2018
Filed: March 6, 2018
____________
Before WOLLMAN, LOKEN, and COLLOTON, Circuit Judges.
____________
LOKEN, Circuit Judge
The issue is whether the Eighth and Fourteenth Amendments, as applied, bar
Missouri officials from employing a procedure that is authorized by Missouri statute
to execute Russell Bucklew.
In March 2006, Bucklew stole a car; armed himself with pistols, handcuffs, and
a roll of duct tape; and followed his former girlfriend, Stephanie Ray, to the home of
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Michael Sanders, where she was living. Bucklew knocked and entered the trailer
with a pistol in each hand when Sanders’s son opened the door. Sanders took the
children to the back room and grabbed a shotgun. Bucklew began shooting. Two
bullets struck Sanders, one piercing his chest. Bucklew fired at Sanders’s six-yearold son, but missed. As Sanders bled to death, Bucklew struck Ray in the face with
a pistol, handcuffed Ray, dragged her to the stolen car, drove away, and raped Ray
in the back seat of the car. He was apprehended by the highway patrol after a
gunfight in which Bucklew and a trooper were wounded.
A Missouri state court jury convicted Bucklew of murder, kidnaping, and rape.
The trial court sentenced Bucklew to death, as the jury had recommended. His
conviction and sentence were affirmed on direct appeal. State v. Bucklew, 973
S.W.2d 83 (Mo. banc 1998). The trial court denied his petition for post-conviction
relief, and the Supreme Court of Missouri again affirmed. Bucklew v. State, 38
S.W.3d 395 (Mo. banc 2001). We subsequently affirmed the district court’s denial
of Bucklew’s petition for a federal writ of habeas corpus. Bucklew v. Luebbers, 436
F.3d 1010 (8th Cir. 2006). The Supreme Court of Missouri issued a writ of execution
for May 21, 2014. Bucklew filed this action under 42 U.S.C. § 1983, alleging that
execution by Missouri’s lethal injection protocol, authorized by statute, would
constitute cruel and unusual punishment in violation of the Eighth and Fourteenth
Amendments as applied to him because of his unique medical condition. Bucklew
appeals the district court’s1 grant of summary judgment in favor of the state
defendants because Bucklew failed to present adequate evidence to establish his
claim under the governing standard established by the Supreme Court in Baze v.
Rees, 553 U.S. 35 (2008), and Glossip v. Gross, 135 S. Ct. 2726 (2015). Reviewing
the grant of summary judgment de novo, we affirm.
The Honorable Beth Phillips, United States District Judge for the Western
District of Missouri.
1
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I.
Missouri’s method of execution is by injection of a lethal dose of the drug
pentobarbital. Two days before his scheduled execution in 2014, the district court
denied Bucklew’s motion for a stay of execution and dismissed this as-applied action
sua sponte. On appeal, a divided panel granted a stay of execution, Bucklew v.
Lombardi, 565 Fed. Appx. 562 (8th Cir. 2014); the court en banc vacated the stay.
Bucklew applied to the Supreme Court for a stay of execution, and the Court issued
an Order granting his application “for stay pending appeal in the Eighth Circuit.”
This court, acting en banc, reversed the sua sponte dismissal of Bucklew’s as-applied
Eighth Amendment claim and remanded to the district court for further proceedings.
Bucklew v. Lombardi, 783 F.3d 1120, 1128 (8th Cir. 2015) (“Bucklew I”). On the
same day, the en banc court affirmed the district court’s dismissal on the merits of a
facial challenge to Missouri’s lethal injection protocol filed by several inmates
sentenced to death, including Bucklew. Zink v. Lombardi, 783 F.3d 1089, 1114 (8th
Cir.), cert denied, 135 S. Ct. 2941 (2015).2
“The doctrine of res judicata or claim preclusion bars relitigation of a § 1983
claim if the prior judgment was a final judgment on the merits rendered by a court of
competent jurisdiction, and if the same cause of action and the same parties or their
privies were involved.” Baker v. Chisom, 501 F.3d 920, 925 (8th Cir. 2007), cert
denied, 554 U.S. 902 (2008). As Bucklew was a plaintiff in Zink, any facial
challenge to the current method of execution in this case is precluded. Defendants
argue that Bucklew’s as-applied challenge is also precluded because it could have
been raised in Zink. See Brown v. St. Louis Police Dep’t, 691 F.2d 393, 396 (8th Cir.
1982). Like the district court, we decline to address this complex issue. See Bucklew
I, 783 F.3d at 1122 n.1; cf. Whole Woman’s Health v. Hellerstedt, 136 S. Ct 2292,
2305 (2016). We likewise decline to address defendants’ claim that Bucklew’s asapplied challenge is barred by the applicable statute of limitations. See Boyd v.
Warden, Holman Corr. Facility, 856 F.3d 853, 874-76 (11th Cir. 2017).
2
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Our decision in Bucklew I set forth in considerable detail the allegations in
Bucklew’s as-applied complaint regarding his medical condition. 783 F.3d at 112426. Bucklew has long suffered from a congenital condition called cavernous
hemangioma, which causes clumps of weak, malformed blood vessels and tumors to
grow in his face, head, neck, and throat. The large, inoperable tumors fill with blood,
periodically rupture, and partially obstruct his airway. In addition, the condition
affects his circulatory system, and he has compromised peripheral veins in his hands
and arms. In his motion for a stay of execution in Bucklew I, Bucklew argued:
Dr. Joel Zivot, a board-certified anesthesiologist . . . concluded after
reviewing Mr. Bucklew’s medical records that a substantial risk existed
that, because of Mr. Bucklew’s vascular malformation, the lethal drug
will likely not circulate as intended, creating a substantial risk of a
“prolonged and extremely painful execution.” Dr. Zivot also concluded
that a very substantial risk existed that Mr. Bucklew would hemorrhage
during the execution, potentially choking on his own blood -- a risk
greatly heightened by Mr. Bucklew’s partially obstructed airway.
*
*
*
*
*
[The Department of Corrections has advised it would not use a dye in
flushing the intravenous line because Dr. Zivot warned that might cause
a spike in Bucklew’s blood pressure.] Reactionary changes at the
eleventh hour, without the guidance of imaging or tests, create a
substantial risk to Mr. Bucklew, who suffers from a complex and severe
medical condition that has compromised his veins.
*
*
*
*
*
The DOC seems to acknowledge they agree with Dr. Zivot that Mr.
Bucklew’s obstructed airway presents substantial risks of needless pain
and suffering, but what they plan to do about it is a mystery. Will they
execute Mr. Bucklew in a seated position? . . . The DOC should be
required to disclose how it plans to execute Mr. Bucklew so that this
Court can properly assess whether additional risks are present. . . . Until
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Mr. Bucklew knows what protocol the DOC will use to kill him, and
until the DOC is required to conduct the necessary imaging and testing
to quantify the expansion of Mr. Bucklew’s hemangiomas and the extent
of his airway obstruction, it is not possible to execute him without
substantial risk of severe pain and needless suffering.
Defendants’ Suggestions in Opposition argued that Bucklew’s “proposed changes . . .
with the exception of his complaint about [dye], which Missouri will not use in
Bucklew’s execution, are not really changes in the method of execution.”
Glossip and Baze established two requirements for an Eighth Amendment
challenge to a method of execution. First, the challenger must “establish that the
method presents a risk that is sure or very likely to cause serious illness and needless
suffering, and give rise to sufficiently imminent dangers.” Glossip, 135 S. Ct. at 2737
(emphasis in original), citing Baze, 553 U.S. at 50. This evidence must show that the
pain and suffering being risked is severe in relation to the pain and suffering that is
accepted as inherent in any method of execution. Id. at 2733. Second, the challenger
must “identify an alternative that is feasible, readily implemented, and in fact
significantly reduces a substantial risk of severe pain.” Glossip, 135 S. Ct. at 2737,
citing Baze, 553 U.S. at 52. This two-part standard governs as-applied as well as
facial challenges to a method of execution. See, e.g., Jones v. Kelley, 854 F.3d 1009,
1013, 1016 (8th Cir. 2017); Williams v. Kelley, 854 F.3d 998, 1001 (8th Cir. 2017);
Johnson v. Lombardi, 809 F.3d 388, 390 (8th Cir. 2015); Bucklew I, 783 F.3d at
1123, 1127. As a panel we are bound by these controlling precedents. Bucklew
argues the second Baze/Glossip requirement of a feasible alternative method of
execution that substantially reduces the risk of suffering should not apply to “an
individual who is simply too sick and anomalous to execute in a constitutional
manner,” like those who may not be executed for mental health reasons. See, e.g.,
Ford v. Wainwright, 477 U.S. 399, 410 (1986). The Supreme Court has not
recognized a categorical exemption from the death penalty for individuals with
physical ailments or disabilities. Thus, in the decision on appeal, the district court
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properly applied the Baze/Glossip two-part standard in dismissing Bucklew’s asapplied claim.
We concluded in Bucklew I, based on a record “which went well beyond the
four corners of Bucklew’s complaint,” that the complaint’s allegations, bolstered by
defendants’ concession “that the Department’s lethal injection procedure would be
changed on account of his condition by eliminating the use of methylene blue dye,”
sufficiently alleged the first requirement of an as-applied challenge to the method of
execution -- “a substantial risk of serious and imminent harm that is sure or very
likely to occur.” 783 F.3d at 1127. We further concluded the district court’s sua
sponte dismissal was premature because these detailed allegations made it
inappropriate “to assume that Bucklew would decline an invitation to amend the asapplied challenge” to plausibly allege a feasible and more humane alternative method
of execution, the second requirement under the Baze/Glossip standard. Id. In
remanding, we directed that further proceedings “be narrowly tailored and
expeditiously conducted to address only those issues that are essential to resolving”
the as-applied challenge. Id. at 1128. We explained:
Bucklew’s arguments on appeal raise an inference that he is
impermissibly seeking merely to investigate the protocol without taking
a position as to what is needed to fix it. He may not be “permitted to
supervise every step of the execution process.” Rather, at the earliest
possible time, he must identify a feasible, readily implemented
alternative procedure that will significantly reduce a substantial risk of
severe pain and that the State refuses to adopt. . . . Any assertion that all
methods of execution are unconstitutional does not state a plausible
claim under the Eighth Amendment or a cognizable claim under § 1983.
Id. (quotation omitted; emphasis in original).
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II.
On remand, consistent with our directive, the district court first ordered
Bucklew to file an amended complaint that adequately identified an alternative
procedure. Twice, Bucklew filed amended complaints that failed to comply with this
order. Given one last chance to comply or face dismissal, on October 13, 2015,
Bucklew filed a Fourth Amended Complaint. As relevant here, it alleged:
106. Based on Mr. Bucklew’s unique and severe condition, there
is no way to proceed with Mr. Bucklew’s execution under Missouri’s
lethal injection protocol without a substantial risk to Mr. Bucklew of
suffering grave adverse events during the execution, including
hemorrhaging, suffocating or experiencing excruciating pain.
107. Under any scenario or with any of lethal drug, execution by
lethal injection poses an enormous risk that Mr. Bucklew will suffer
extreme, excruciating and prolonged pain -- all accompanied by choking
and struggling for air.
128. In May 2014, the DOC also proposed a second adjustment
in its protocol, offering to adjust the gurney so that Mr. Bucklew is not
lying completely prone.3 . . . As a practical matter, no adjustment would
likely be sufficient, as the stress of the execution may unavoidably cause
Mr. Bucklew’s hemangiomas to rupture, leading to hemorrhaging,
bleeding in his throat and through his facial orifices, and coughing and
choking on his own blood.
129. In order to fully evaluate and establish the risks to Mr.
Bucklew from execution by lethal injection, a full and complete set of
imaging studies must be conducted.
In their answer to paragraph 128, defendants alleged: “Defendants admit that
the Defendants offered to have the anesthesiologist position the angle of the gurney
in a proper position.” Thus, this fact was established by the pleadings.
3
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139. Mr. Bucklew is mindful of the Court’s directive to allege a
feasible, readily implemented alternative procedure . . . . Mr. Bucklew
has complied . . . by researching and proposing execution by lethal gas,
which is specifically authorized by Missouri law and which Missouri’s
Attorney General has stated the DOC is prepared to implement.
150. In adherence with the pleading requirements set forth in
Glossip, and as stated above, Mr. Bucklew specifically alleges lethal gas
as a feasible and available alternative method that will significantly
reduce the risk of severe pain to Mr. Bucklew.
In other words, Bucklew took the position that no modification of Missouri’s lethal
injection method of execution could be constitutionally applied to execute Bucklew.
He proposed massive discovery allegedly needed to establish the first Baze/Glossip
requirement. But his legal theory is that alternative procedures such as adjusting the
gurney’s position are irrelevant because no lethal injection procedure would be
constitutional, only a change to the use of lethal gas would be adequate.
Bucklew’s as-applied claim focused on two aspects of his medical condition.
First, Bucklew’s experts initially opined that his peripheral veins are so weak that
injection of a lethal dose of pentobarbital would not adequately circulate, leading to
a prolonged and painful execution. The district court concluded that discovery and
expert opinions developed on remand refuted this claim. The lethal injection protocol
provides that medical personnel may insert the primary intravenous (IV) line “as a
central venous line” and may dispense with a secondary peripheral IV line if “the
prisoner’s physical condition makes it unduly difficult to insert more than one IV.”
Bucklew’s expert Dr. Zivot conceded, and Defendants’ expert, Dr. Joseph Antognini,
agreed, that the central femoral vein can circulate a “fair amount of fluid” without
serious risk of rupture and that Bucklew’s medical condition will not affect the flow
of pentobarbital after it is injected through this vein.
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Second, Bucklew’s experts opined that his condition will cause him to
experience severe choking and suffocation during execution by lethal injection.
When Bucklew is supine, gravity pulls the hemangioma tumor into his throat which
causes his breathing to be labored and the tumor to rupture and bleed. When
conscious, Bucklew can “adjust” his breathing with repeated swallowing that
prevents the tumor from blocking his airway. But during the “twilight stage” of a
lethal injection execution, Dr. Zivot opined that Bucklew will be aware he is choking
on his own blood and in pain before the pentobarbital renders him unconscious and
unaware of pain. Based on a study of lethal injections in horses, Dr. Zivot estimated
there could be a period as short as 52 seconds and as long as 240 seconds when
Bucklew is conscious but immobile and unable to adjust his breathing; his attempts
to breath will create friction, causing the tumor to bleed and possibly hemorrhage.
In Dr. Zivot’s opinion, there is a “very, very high likelihood” that Bucklew will suffer
“choking complications, including visible hemorrhaging,” if he is executed by any
means of lethal injection, including using the drug pentobarbital.
According to Defendants’ expert, Dr. Antognini, pentobarbital causes death by
“producing rapid, deep unconscious[ness], respiratory depression, followed by . . .
complete absence of respiration, decreased oxygen levels, slowing of the heart, and
then the heart stopping.” In contrast to Dr. Zivot, Dr. Antognini opined that
pentobarbital would cause “rapid and deep unconsciousness” within 20-30 seconds
of entering Bucklew’s blood stream, rendering him insensate to bleeding and choking
sensations. Dr. Antognini also challenged Dr. Zivot’s opinion that a supine Bucklew,
unable to adjust his breathing, will be aware he is choking on his own blood and in
pain from the tumor blocking his airway before the pentobarbital renders him
unconscious. Dr. Antognini noted that, between 2000 and 2003, Bucklew underwent
general anesthesia eight times, at least once in a supine position. In December 2016,
Bucklew lay supine for over an hour undergoing an MRI, with no more than
discomfort. The MRI revealed that his tumor had slightly shrunk since 2010.
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In granting defendants summary judgment, the district court declined to rely
on the first Glossip/Baze requirement because these conflicting expert opinions
“would permit a factfinder to conclude that for as long as four minutes [after the
injection of pentobarbital Bucklew] could be aware that he is choking or unable to
breathe but be unable [to] ‘adjust’ his breathing to remedy the situation.” Rather, the
court held that Bucklew failed to provide adequate evidence that his alternative
method of execution -- lethal gas -- was a “feasible, readily implemented” alternative
that would “in fact significantly reduce a substantial risk of severe pain” as compared
to lethal injection. Glossip, 135 S.Ct. at 2737; Baze, 553 U.S. at 52.
III.
To succeed in his challenge to Missouri’s lethal injection execution protocol,
Bucklew must establish both prongs of the Glossip/Baze standard. Glossip, 135 S.
Ct. 2737. The district court held that Bucklew failed to establish the second prong
of Glossip/Baze by showing that an alternative method of execution would “in fact
significantly reduce a substantial risk of severe pain.” As noted, Bucklew argues the
Glossip/Baze standard should not apply to an as-applied challenge to a method of
execution, an argument our controlling precedents have rejected. He raises two
additional issues on appeal.
A. Bucklew first argues the district court erred in granting summary judgment
on the second Glossip/Baze requirement because he presented sufficient evidence that
his proposed alternative method of execution -- death through nitrogen gas-induced
hypoxia -- “would substantially reduce his suffering.” Summary judgment is not
appropriate when there are material issues of disputed fact, and the Supreme Court
in Glossip made clear that this issue may require findings of fact that are reviewed for
clear error. See 135 S. Ct. at 2739-41 (majority opinion) and 2786 (Sotomayor, J.,
dissenting). However, whether a method of execution “constitutes cruel and unusual
punishment is a question of law.” Swindler v. Lockhart, 885 F.2d 1342, 1350 (8th
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Cir. 1989). Thus, unless there are material underlying issues of disputed fact, it is
appropriate to resolve this ultimate issue of law by summary judgment.
Nitrogen hypoxia is an authorized method of execution under Missouri Law.
See Mo. Stat. Ann. § 546.720. Missouri has not used this method of execution since
1965 and does not currently have a protocol in place for execution by lethal gas. But
there are ongoing studies of the method in other States and at least preliminary
indications that Missouri will undertake to develop a protocol. Defendants do not
argue this is not a feasible and available alternative.
The district court granted summary judgment based on Bucklew’s failure to
provide adequate evidence that execution by nitrogen hypoxia would substantially
reduce the risk of pain or suffering. The court allowed Bucklew extensive discovery
into defendants’ knowledge regarding execution by lethal gas. But Missouri’s lack
of recent experience meant that this discovery produced little relevant evidence and
no evidence that the risk posed by lethal injection is substantial when compared to the
risk posed by lethal gas. See Glossip, 135 S. Ct. at 2738; Johnson, 809 F.3d at 391.
Bucklew’s theory is that execution by nitrogen hypoxia would render Bucklew
insensate more quickly than lethal injection and would not cause choking and
bleeding in his tumor-blocked airway. But his expert, Dr. Zivot, provided no support
for this theory. Dr. Zivot’s Supplemental Expert Report explained:
[W]hile I can assess Mr. Bucklew’s current medical status and render an
expert opinion as to the documented and significant risks associated
with executing Mr. Bucklew under Missouri’s current Execution
Procedure, I cannot advise counsel or the Court on how to execute Mr.
Bucklew in a way that would satisfy Constitutional requirements.
Lacking affirmative comparative evidence, Bucklew relied on Dr. Antognini’s
deposition. In his Expert Report, Dr. Antognini concluded that “the use of lethal gas
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would not significantly lessen any suffering or be less painful than lethal injection in
this inmate.” At his deposition, Dr. Antognini was asked:
Q. Why does lethal gas not hold any advantage compared to lethal
injection.
A. Well . . . there are a lot of types of gases that could be used
. . . . [U]sing gas would not significantly lessen any suffering or be less
painful. Because, again, their onset of action is going to be relatively
fast, just like Pentobarbital’s onset -- onset of action.
Q. That’s it? Simply because it would happen quickly?
A. Correct.
The district court concluded this opinion provided nothing to compare:
Dr. Antognini specifically stated that he believed there would be no
difference in the “speed” of lethal gas as compared to pentobarbital. . . .
In the absence of evidence contradicting Defendants’ expert and
supporting Plaintiff’s theory, there is not a triable issue.
On appeal, Bucklew argues the district court should have compared Dr. Zivot’s
opinion that lethal injection would take up to four minutes to cause Bucklew’s brain
death with Dr. Antognini’s testimony that lethal gas would render him unconscious
in the same amount of time as lethal injection, 20 to 30 seconds. But Dr. Antognini’s
comparative testimony was that both methods would result in unconsciousness in
approximately the same amount of time. Bucklew offered no contrary comparative
evidence and thus the district court correctly concluded that he failed to satisfy his
burden to provide evidence “establishing a known and available alternative that
would significantly reduce a substantial risk of severe pain.” McGehee v.
Hutchinson, 854 F.3d 488, 493 (8th Cir. 2017).
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In addition, Bucklew’s claim that he will experience choking sensations during
an execution by lethal injection but not by nitrogen hypoxia rests on the proposition
that he could be seated during the latter but not the former. He argues there is
evidence he will be forced to remain supine during an execution by lethal injection,
when his tumor will cause him to sense he is choking on his own blood, whereas he
could remain seated during the administration of lethal gas, which would not cause
a choking sensation. But this argument lacks factual support in the record. Having
taken the position that any lethal injection procedure would violate the Eighth
Amendment, Bucklew made no effort to determine what changes, if any, the DOC
would make in applying its lethal injection protocol in executing Bucklew, other than
defendants advising -- prior to remand by this court -- that dye would not be used.
Based on Bucklew’s argument to the en banc court, we expected that the core
of the proceedings on remand would be defining what changes defendants would
make on account of Bucklew’s medical condition and then evaluating that modified
procedure under the two-part Baze/Glossip standard. On remand, Director of
Corrections Ann Precythe testified that the medical members of the execution team
are provided a prisoner’s medical history in preparing for the execution. Precythe has
authority to make changes in the execution protocol, such as how the primary IV line
will be inserted in the central femoral vein or how the gurney will be positioned, if
the team advises that changes are needed. While Bucklew sought and was denied
discovery of the identities of the execution team’s medical members, he never urged
the district court to establish a suitable fact-finding procedure -- for example, by
anonymous interrogatories or written deposition questions to the execution team
members -- for discovery of facts needed for the DOC to define the as-applied lethal
injection protocol it intends to use for Bucklew. As Bucklew did not pursue these
issues, the pleadings established that defendants have proposed to reposition the
gurney during Bucklew’s deposition, and Director Precythe testified that she has
authority to make this type of change in the execution protocol based on the execution
team’s advice based on review of Bucklew’s medical history, but the record does not
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disclose whether Bucklew will in fact be supine during the execution,4 nor does it
disclose that a “cut-down” procedure will not be used to place the primary IV line in
his central femoral vein, a procedure Dr. Antognini opined was unnecessary.
Bucklew simply asserts that, in comparing execution by lethal injection and by lethal
gas, we must accept his speculation that defendants will employ these risk-increasing
procedures. This we will not do.
Like the district court, we conclude the summary judgment record contains no
basis to conclude that Bucklew’s risk of severe pain would be substantially reduced
by use of nitrogen hypoxia instead of lethal injection as the method of execution.
Evidence that “is equivocal, lacks scientific consensus and presents a paucity of
reliable scientific evidence” does not establish that an execution is sure or very likely
to cause serious illness and needless suffering. Williams v. Kelley, 854 F.3d at 1001
(quotation omitted). Therefore, he failed to establish the second prong of the
Glossip/Baze standard.
B. Bucklew further contends the district court erred in denying his requests for
discovery relating to “M2” and “M3,” two members of the lethal injection execution
team. Bucklew argues he was entitled to discovery of the medical technicians’
qualifications, training, and experience because it would “illuminate the nature and
extent of the risks of suffering he faces.” For example, if M3 was not qualified to
safely place his IV in the central femoral vein, this would directly impact the risk of
Dr. Zivot surmised that Bucklew will be required to lie flat during lethal
injection based on what he observed at an execution in Georgia. He gave no reason
to believe that pentobarbital could not be injected through a femoral vein while
Bucklew is seated. He merely opined that “[i]t’s more difficult” to administer an
anesthetic to someone who is sitting up. Dr. Antognini, in addition to opining that
Bucklew would be rendered unconscious and insensate within 20 to 30 seconds of
pentobarbital injection, noted that it was not necessary that Bucklew be supine in
order to inject pentobarbital in his femoral vein.
4
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pain and suffering. We review a district court’s discovery rulings narrowly and with
great deference and will reverse only for a “gross abuse of discretion resulting in
fundamental unfairness.” Marksmeier v. Davie, 622 F.3d 896, 903 (8th Cir. 2010).
Bucklew’s argument proceeds from the premise that M2 and M3 may not be
qualified for the positions for which they have been hired. But we will not assume
that Missouri employs personnel who are incompetent or unqualified to perform their
assigned duties. See Clemons v. Crawford, 585 F.3d 1119, 1128 (8th Cir. 2009). He
further argues that deposition of M2 and M3 is necessary to understand how they will
handle a circumstance in case something goes wrong during Bucklew’s execution.
The potentiality that something may go wrong in an execution does not give rise to
an Eighth Amendment violation. Zink, 783 F.3d at 1101. “Some risk of pain is
inherent in any method of execution -- no matter how humane -- if only from the
prospect of error in following the required procedure. . . . [A]n isolated mishap alone
does not give rise to an Eighth Amendment violation.” Baze, 553 U.S. at 47, 50.
Thus, the district court’s ruling was consistent with our instruction in remanding that
Bucklew “may not be permitted to supervise every step of the execution process.”
Bucklew I, 783 F.3d at 1128 (quotation omitted). The Baze/Glossip evaluation must
be based on the as-applied pre-execution protocol, assuming that those responsible
for carrying out the sentence are competent and qualified to do so, and that the
procedure will go as intended.
III. Conclusion
Having thoroughly reviewed the record, we conclude that Bucklew has failed
to establish that lethal injection, as applied to him, constitutes cruel and unusual
punishment under the Eighth and Fourteenth Amendments. Therefore, we affirm the
judgment of the district court.
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COLLOTON, Circuit Judge, dissenting.
Russell Bucklew alleges that the State of Missouri’s method of execution by
lethal injection violates his rights under the Eighth and Fourteenth Amendments. He
seeks an injunction prohibiting an execution by that method. The district court
granted summary judgment for the State, but there are genuine disputes of material
fact that require findings of fact by the district court before this dispute can be
resolved. I would therefore remand the case for the district court promptly to conduct
further proceedings.
Bucklew’s claim under 42 U.S.C. § 1983 requires him to prove two elements:
(1) that the State’s method of execution is sure or very likely to cause him severe
pain, and (2) that an alternative method of execution that is feasible and readily
implemented would significantly reduce the substantial risk of severe pain. Glossip
v. Gross, 135 S. Ct. 2726, 2737 (2015); Bucklew v. Lombardi, 783 F.3d 1120, 1123,
1128 (8th Cir. 2015) (en banc). On the first element, the district court concluded that
taking the evidence in the light most favorable to Bucklew, there is a substantial risk
under Missouri’s lethal injection protocol that Bucklew will experience choking and
an inability to breathe for up to four minutes. On the second element, however, the
court ruled as a matter of law that Bucklew’s suggested alternative
method—execution by administration of nitrogen gas—would not significantly
reduce the substantial risk that the court identified under the first element. In my
view, the district court’s reasoning as to the first element is inconsistent with its
summary disposition of Bucklew’s claim on the second.
On the first element, Bucklew’s theory is that he will suffer severe pain by
prolonged choking or suffocation if the State executes him by lethal injection. He
contends that when he lies supine on the execution gurney, tumors in his throat will
block his airway unless he can “adjust” his positioning to enable breathing. Bucklew
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argues that if an injection of pentobarbital renders him unable to adjust his
positioning while he can still sense pain, then he will choke or suffocate.
In assessing that claim, the district court cited conflicting expert testimony
from Bucklew’s expert, Dr. Joel Zivot, and the State’s expert, Dr. Joseph Antognini.
Dr. Antognini testified that if the State proceeded by way of lethal injection using
pentobarbital, then Bucklew would be unconscious within twenty to thirty seconds
and incapable of experiencing pain at that point. R. Doc. 182-5, at 10, 40-41. Dr.
Zivot, however, differed: “I strongly disagree with Dr. Antognini’s repeated claim
that the pentobarbital injection would result in ‘rapid unconsciousness’ and therefore
Mr. Bucklew would not experience any suffocating or choking.” R. Doc. 182-1, at
147. Zivot opined that Bucklew “would likely experience unconsciousness that sets
in progressively as the chemical circulates through his system,” and that “during this
in-between twilight stage,” Bucklew “is likely to experience prolonged feelings of
suffocation and excruciating pain.” Id.
In his deposition, Dr. Zivot opined that “there will be points,” before Bucklew
dies, “where he’s beginning to experience the effects of the pentobarbital, where his
ability to control and regulate and adjust his airway will be impaired, although there
will still be the experience capable of knowing that he cannot make the adjustment,
and will experience it as choking.” Id. at 81. When directed to Dr. Antognini’s
opinion that Bucklew would be unaware of noxious stimuli within twenty to thirty
seconds of a pentobarbital injection, Dr. Zivot observed that Antognini’s opinion was
based on a study involving dogs from fifty years ago and testified that his “number
would be longer than that.” Id. at 85. When asked for his “number,” Dr. Zivot
pointed to a study on lethal injections administered to horses; he said the study
recorded “a range of as short as fifty-two seconds and as long as about two hundred
and forty seconds before they see isoelectric EEG.” Id. at 85-86. Dr. Zivot noted that
the “number” that he derived from the horse study was “more than twice as long as”
the number suggested by Dr. Antognini. Id. at 86. He defined “isoelectric EEG” as
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“indicative of at least electrical silence on the parts of the brain that the
electroencephalogram has access to.” Id.
The district court observed that “[a]n execution is typically conducted with the
prisoner lying on his back,” and that the record “establishes that [Bucklew] has
difficulty breathing while in that position because the tumors can cause choking or
an inability to breathe.” The court understood Dr. Zivot to mean that “it could be
fifty-two to 240 seconds before the pentobarbital induces a state in which [Bucklew]
could no longer sense that he is choking or unable to breathe.” Thus, the court
concluded that “construing the Record in [Bucklew’s] favor reveals that it could be
fifty-two to 240 seconds before the pentobarbital induces a state in which [Bucklew]
could no longer sense that he is choking or unable to breathe.” Again, the court
reasoned that “the facts construed in [Bucklew’s] favor would permit a factfinder to
conclude that for as long as four minutes [Bucklew] could be aware that he is choking
or unable to breathe but be unable to ‘adjust’ his breathing to remedy the situation.”
On that basis, the court presumed for purposes of the motion for summary judgment
that “there is a substantial risk that [Bucklew] will experience choking and an
inability to breathe for up to four minutes.”
The State disputes that there is a genuine dispute of material fact on the first
element of Bucklew’s claim, but the district court properly concluded that findings
of fact were required. Bucklew pointed to evidence from Missouri corrections
officials that prisoners have always laid flat on their backs during executions by lethal
injection in Missouri. R. Doc. 182-7, at 10; R. Doc. 182-9, at 1; R. Doc. 182-12, at
29, 91. One official testified that he did not know whether the gurney could be
adjusted. R. Doc. 182-12, at 91. Another official believed that the head of the gurney
“could” be raised (or that a gurney with that capability could be acquired), and that
an anesthesiologist would have “the freedom” to adjust the gurney “if” he or she
determined that it would be in the best medical interest of the offender to do so. R.
Doc. 182-7, at 14. But the State did not present evidence about how it would position
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Bucklew or the gurney during his execution. On a motion for summary judgment, the
district court was required to construe the evidence in the light most favorable to
Bucklew. Under that standard, without undisputed evidence from the State that it
would alter its ordinary procedures, the court did not err by concluding that a finder
of fact could infer that the State would proceed as in all other executions, with
Bucklew lying on his back.5
The State argues that the district court erred in discerning a genuine dispute of
material fact on the first element because Dr. Zivot did not specify the length of the
expected “twilight stage” during which Bucklew would be unable to adjust his
positioning yet still sense pain. The State also complains that Dr. Zivot did not
specify that Bucklew’s pain awareness would continue for fifty-two seconds or longer
until brain waves ceased. There certainly are grounds to attack the reliability and
credibility of Dr. Zivot’s opinion, including the imprecision of some of his testimony,
his opposition to all forms of lethal injection, his possible misreading of the horse
study on which he partially relied, and his inaccurate predictions of calamities at prior
executions. But he did opine that Bucklew was likely to “experience prolonged
feelings of suffocation and excruciating pain” if executed by lethal injection, R. Doc.
182-1, at 147, and that there “will be points” before Bucklew dies when his ability to
regulate his airway will be impaired so that he “will experience it as choking.” Id. at
Bucklew alleged in Paragraph 128 of his complaint that the State had offered
to adjust the gurney so that Bucklew is not lying completely prone, but then
continued as follows immediately thereafter: “Although the stated intent was to
reduce the choking risk to Mr. Bucklew, the DOC has obtained no imaging studies
of Mr. Bucklew since 2010, and therefore has no information on which to base any
decisions about the angle of the gurney.” R. Doc. 53, at 43-44. The district court
noted the State’s suggestion “that the execution could be performed with [Bucklew]
in a different position,” but explained that “there is no evidence whether this has an
effect on the procedure as a whole,” and concluded that the State had “not provided
the Court with a basis for granting summary judgment based on the possibility of
performing the execution with [Bucklew] in a sitting (or other) position.”
5
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81. The district court did not err in concluding that it could not resolve the dispute
between the experts on summary judgment.
On the second element of Bucklew’s claim, the district court concluded as a
matter of law that Bucklew failed to show that his proposed alternative method of
execution—administration of nitrogen gas—would significantly reduce the
substantial risk of severe pain that the court recognized under the first element. The
majority affirms the district court’s judgment on this basis. Taking the evidence in
the light most favorable to Bucklew, however, a factfinder could conclude that
nitrogen gas would render Bucklew insensate more quickly than pentobarbital and
would thus eliminate the risk that he would experience prolonged feelings of choking
or suffocation. Dr. Antognini testified that a person who is administered nitrogen gas
“would be unconscious very quickly,” and that the onset of action from lethal gas “is
going to be relatively fast, just like Pentobarbital’s onset.” R. Doc. 182-5, at 58-59
(emphasis added). Given Dr. Antognini’s testimony that pentobarbital would render
Bucklew insensate within twenty to thirty seconds, the record in the light most
favorable to Bucklew supports a finding based on Antognini’s testimony that nitrogen
gas would relieve Bucklew from any pain of choking or suffocating within twenty to
thirty seconds. A trier of fact may accept all, some, or none of a witness’s testimony,
United States v. Candie, 974 F.2d 61, 65 (8th Cir. 1992), and a plaintiff may rely on
testimony from the defendant’s expert to meet his burden if the testimony is
advantageous to the plaintiff. See IBEW Local 98 Pension Fund v. Best Buy Co., Inc.,
818 F.3d 775, 782 (8th Cir. 2016). If the factfinder accepted Dr. Zivot’s testimony
as to the effect of pentobarbital, and Dr. Antognini’s uncontroverted testimony as to
effect of nitrogen gas, then Bucklew’s proposed alternative method would
significantly reduce the substantial risk of severe pain that the district court identified
in its analysis of the first element.
For these reasons, there are genuine disputes of material fact that preclude
summary judgment and require findings of fact by the district court. I would
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therefore remand the case for further proceedings. The district court may then
promptly make appropriate factual findings about, among other things, how Bucklew
will be positioned during an execution, whether his airway will be blocked during an
execution, and how pentobarbital (and, if necessary, nitrogen gas) will affect his
consciousness and ability to sense potential pain.
*
*
*
The State contends that we should not reach the merits of Bucklew’s claim
because several procedural obstacles require dismissal of his complaint. The majority
does not rely on these points, and I find them unavailing.
First, the State contends that Bucklew did not raise his present claim in his
fourth amended complaint. Bucklew’s complaint, however, does allege the essence
of his current theory. The complaint asserts that the tumors in Bucklew’s throat
require “him to sleep with his upper body elevated” because if he lies flat, “the tumor
then fully obstructs his airway.” Id. at 18-19. It continued: “Executions are
conducted on a gurney, and the risks arising from Mr. Bucklew’s airway are even
greater if he is lying flat. Because of the hemangiomas, Mr. Bucklew is unable to
sleep in a normal recumbent position because the tumors cause greater obstruction in
that position.” R. Doc. 53, at 35. Bucklew further alleged that execution by lethal
injection “poses an enormous risk that Mr. Bucklew will suffer extreme, excruciating
and prolonged pain – all accompanied by choking and struggling for air.” Id. at 36.
The complaint was adequate under a notice pleading regime to raise a claim that the
execution procedure would result in an obstructed airway and choking or suffocation.
If necessary, moreover, the district court acted within its discretion by treating
the complaint as impliedly amended to include Bucklew’s present claim. See Fed. R.
Civ. P. 15(b)(2). Bucklew clearly notified the State of his contention in his
opposition to the State’s motion for summary judgment. R. Doc. 192-1, at 1-3, 11-17.
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Yet rather than communicate surprise and object that the claim was not pleaded, the
State addressed Bucklew’s contention on the merits. R. Doc. 200, at 4-5. Where a
party has actual notice of an unpleaded issue and has been given an adequate
opportunity to cure any surprise resulting from a change in the pleadings, there is
implied consent to an amendment. Trip Mate, Inc. v. Stonebridge Cas. Ins. Co., 768
F.3d 779, 784-85 (8th Cir. 2014).
Second, the State argues that the five-year statute of limitations bars Bucklew’s
claim, because he was aware of his claim in 2008 and did not file his complaint until
May 9, 2014. A claim under § 1983 accrues when a plaintiff has “a complete and
present cause of action” and “can file suit and obtain relief.” Wallace v. Kato, 549
U.S. 384, 388 (2007) (quoting Bay Area Laundry & Dry Cleaning Pension Trust
Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997)). Bucklew asserts that he did
not have knowledge of his present claim, and therefore could not have filed suit and
obtained relief, until his medical condition progressed and he was examined by Dr.
Zivot in April 2014. As evidence that Bucklew could have brought his claim earlier,
the State relies on a 2008 petition that Bucklew submitted to the Missouri Supreme
Court. The petition sought funding for an expert witness to investigate the interaction
of the State’s existing execution protocol with Bucklew’s health condition. The
possible claim addressed in the 2008 funding petition, however, focused on the
potential for uncontrolled bleeding and ineffective circulation of drugs within
Bucklew’s body under the State’s former three-drug execution protocol. The petition
does not demonstrate that Bucklew was then on notice of a claim that a future
execution protocol using the single drug pentobarbital would create a substantial risk
of severe pain resulting from tumors blocking his airway while laying supine during
an execution.
Third, the State urges that Bucklew’s claim is barred by res judicata or claim
preclusion, because Bucklew could have litigated his as-applied challenge to the
execution protocol in an earlier case styled Zink v. Lombardi, No. 12-04209-CV-C-22024a
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BP. In Zink, a group of inmates sentenced to death, including Bucklew, brought a
facial challenge to Missouri’s execution protocol. A complaint was filed in August
2012, and the eventual deadline for motions to amend pleadings was January 27,
2014. Principles of claim preclusion do not bar Bucklew’s as-applied challenge if he
was unaware of the basis for the claim in time to include it in the Zink litigation. See
Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2305 (2016). The State again
points to Bucklew’s 2008 funding petition in support of its preclusion defense, but
for reasons discussed, that petition does not establish that Bucklew’s present claim
was available to him in 2008. At oral argument, the State argued that Bucklew could
have added his as-applied challenge to the Zink litigation after he was examined by
Dr. Zivot in April 2014, because the district court granted the Zink plaintiffs leave to
amend their complaint in May 2014. But the court’s order allowed the Zink plaintiffs
leave to amend only a single count of the complaint to allege a feasible alternative
method of execution. The order did not reopen the pleadings deadline for as-applied
claims by the several individual plaintiffs. See Zink v. Lombardi, No. 12-04209-CVC-BP, 2014 WL 11309998, at *4-5, 12 (W.D. Mo. May 2, 2014). The State therefore
has not established that Bucklew’s as-applied claim is barred by res judicata.
*
*
*
For these reasons, I would reverse the judgment of the district court and
remand for further proceedings to be conducted with dispatch.
______________________________
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IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
RUSSELL BUCKLEW,
Plaintiff,
v.
GEORGE A. LOMBARDI, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
Case No. 14-8000-CV-W-BP
ORDER AND OPINION GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Pending is Defendants’ Motion for Summary Judgment, which seeks summary judgment
on the Eighth Amendment Claim presented in Count I1 of the Fourth Amended Complaint.
Defendants contend that the undisputed facts demonstrate (1) they are entitled to judgment as a
matter of law on the merits, (2) Plaintiff’s claim is barred by the statute of limitations, and (3)
Plaintiff’s claim is barred by principles of claim preclusion.2 As discussed below, the Court
agrees that the undisputed facts in the Record establish that Plaintiff cannot prevail on his Eighth
Amendment claim, and for that reason the motion, (Doc. 181), is GRANTED.3
1
Counts II and III were previously dismissed by the Court. (Doc. 63.)
2
Defendants also contend the Court should dismiss the case because it lacks jurisdiction. (Doc. 182, pp. 9-10.) The
argument has been presented before, and the Court rejects it for the reasons previously stated. (See Doc. 101.) To
the extent that Defendants’ argument has shifted to contend that the Court lacks jurisdiction because the Record now
proves that Plaintiff will not suffer a redressable injury, the Court rejects this argument as well. Defendants’
argument relates to Plaintiff’s ability to prove his claim, not to the Court’s jurisdiction, and crediting Defendants’
argument would essentially require dismissal (without prejudice) for lack of jurisdiction anytime a plaintiff fails to
prove his claim. It “is important not to conflate the injury and traceability requirements of a standing analysis with
the plaintiff’s ultimate burden of proof as to the issues of damages and causation at a trial on the merits,” Brown v.
Medtronic, Inc., 628 F.3d 451, 457 (8th Cir. 2010), and this observation applies equally when the merits are
considered at the summary judgment stage.
3
The Court does not address the statute of limitations or claim preclusion arguments. These issues were not
addressed before the first appeal, and the Court of Appeals declined to address them in the first instance. Bucklew v.
Lombardi, 783 F.3d 1120, 1122 n.1, 1128-29 (8th Cir. 2015) (en banc). Following remand Defendants sought
dismissal on these grounds, but the Court denied the request without prejudice because the Record was not yet
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I. BACKGROUND
A. Procedural History
Plaintiff Russell Bucklew was convicted in state court of first degree murder, kidnapping,
burglary, forcible rape, and armed criminal action. He was sentenced to death for the murder
and various terms of years on the other crimes. State v. Bucklew, 973 S.W.2d 83 (Mo. 1998) (en
banc), cert. denied, 525 U.S. 1082 (1999). His requests for postconviction relief and habeas
relief were denied. Bucklew v. State, 38 S.W.3d 395 (Mo.) (en banc), cert. denied, 534 U.S. 964
(2001); Bucklew v. Luebbers, 436 F.3d 1010 (8th Cir.), cert. denied, 549 U.S. 1079 (2006).
Plaintiff filed this suit in May 2014. The Court dismissed the case, but the dismissal was
reversed and the case was remanded. Bucklew v. Lombardi, 783 F.3d 1120, 1128 (8th Cir. 2015)
(en banc). After the Mandate was issued, Bucklew filed a series of Amended Complaints. The
latest – the Fourth Amended Complaint – is the operative pleading, and as noted earlier Count I
is the only remaining count. Count I asserts an Eighth Amendment challenge, contending that
Missouri’s method of execution is unconstitutional as applied to Plaintiff because of his unique
medical condition.
B. Facts
Plaintiff suffers from a congenital condition known as cavernous hemangioma. The
disease causes clumps of weak, malformed blood vessels and tumors to grow throughout his
body, including his head, face, neck and throat. The tumors are very susceptible to rupture. The
sufficiently developed and various legal complexities (some of which had been identified by the Court of Appeals,
783 F.3d at 1122 n.1) had not been addressed. The Court’s Order explained some of the difficulties involved in
determining whether these doctrines apply. (Doc. 63, pp. 9-13.) The Supreme Court has since discussed the
doctrine of claim preclusion when an as-applied challenge follows an unsuccessful facial challenge. Whole
Woman’s Health v. Helerstedt, 136 S. Ct. 2292, 2305 (2016). In reasserting these arguments Defendants have not
addressed any of these factual or legal issues; they have merely cited general principles without explaining how they
apply in this unique situation, and cited to the same facts that were earlier deemed to be incomplete and therefore
insufficient. Given the Court’s ruling on the merits there is no need to further delay resolution of this case to
provide Defendants another opportunity to address these issues.
2
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disease also affects Plaintiff’s circulatory system, resulting in (among other effects)
compromised peripheral veins in his hands and arms. The tumors in his throat also make it
difficult for him to breathe, and that difficulty is exacerbated when he is in a supine position.
Plaintiff’s condition is incurable, and surgery to alleviate the tumors is not possible due to the
risk of severe bleeding.
Missouri’s death penalty protocol has not been succinctly described, but the parties
implicitly agree (and the Record demonstrates, (e.g., Doc. 182-1, pp. 135-36; Doc. 197-1; Doc.
182-7, pp. 7-9)),4 that it involves the intravenous administration of pentobarbital in dosages
sufficient to cause unconsciousness and eventually death. In terms of the IV’s placement, the
protocol provides as follows:
Medical personnel shall determine the most appropriate locations for intravenous
(IV) lines. Both a primary IV line and a secondary IV line shall be inserted unless
the prisoner’s physical condition makes it unduly difficult to insert more than one
IV. Medical personnel may insert the primary IV line as a peripheral line or a
central venous line (e.g., femoral, jugular, or subclavian) provided they have
appropriate training, education and experience for that procedure. The secondary
IV line is a peripheral line.
(Doc. 182-1, p. 1.) The parties seem to agree that because of the cavernous hemangioma
Plaintiff’s peripheral veins cannot be used in this process because of the risk that they will
rupture (assuming that an IV could be placed in them in the first place). However, the portion of
the protocol quoted above confirms that a central line in the femoral vein may be used instead of
inserting an IV in the peripheral veins. With respect to the risk of Plaintiff’s femoral vein
rupturing, Plaintiff’s expert, (Dr. Joel Zivot), testified that the femoral vein is large and capable
of “tak[ing] a fair amount of fluid” when the central line is properly placed, and the risk of that
vein rupturing is “unlikely.” (Doc. 182-1, p. 26.) Dr. Zivot also denied having any reason to
believe that Plaintiff’s medical condition made his femoral vein more susceptible to rupture than
4
All page numbers are those generated by the Court’s CM/ECF system.
3
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might otherwise be expected, and confirmed that his testimony about the risk of Plaintiff’s veins
rupturing was limited to Plaintiff’s peripheral veins. (Doc. 182-1, pp. 70-71, 77-78.) Plaintiff
also concedes that there is no evidence in the Record establishing that Plaintiff has any problem
with his veins other than his peripheral veins, including his femoral vein. (Doc. 197, p. 9.)
Finally, the Record confirms that Plaintiff’s medical condition will not affect the flow of
chemicals in his bloodstream once they are introduced through the femoral vein, or otherwise
affect his expected response to the pentobarbital. (E.g., Doc. 182-1, pp. 65-66, 213-14, 219.)
An execution is typically conducted with the prisoner lying on his back. The procedure
for inserting a central line is also usually performed with the person in the supine position. The
Record establishes that Plaintiff has difficulty breathing while in that position because the tumors
can cause choking or an inability to breathe. Sometimes the tumors bleed, thereby exacerbating
the sensation. When required to be on his back, Plaintiff can “adjust” his breathing so that he
can remain in that position; for instance, Plaintiff was able to lie on his back for approximately
one hour while undergoing an MRI. However, there are factual disputes as to (1) Plaintiff’s
ability to adjust his breathing once the pentobarbital begins to take effect, (Doc. 181-1, pp. 8182), and (2) how quickly the pentobarbital will deprive Plaintiff of the ability to sense that he is
choking or unable to breathe. On the latter point Dr. Zivot testified that it could be fifty-two to
240 seconds before the pentobarbital induces a state in which Plaintiff could no longer sense that
he is choking or unable to breathe. (E.g., Doc. 182-1, pp. 84-88.) Defendants point out that their
expert, Dr. Joseph Antognini, opined that Plaintiff would be unconscious within twenty to thirty
seconds and at that point would be incapable of experiencing pain. (Doc. 182-1, pp. 198-99;
Doc. 182-5, pp. 60-62.) However, the Court cannot resolve this dispute between the experts on
summary judgment.
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Defendants also invite the Court to analyze the study Dr. Zivot relied upon to find that
fifty-two seconds of awareness is the worst case scenario because that is when brain death
occurs. (Doc. 200, p. 15.) Dr. Zivot addressed this issue in his deposition, explaining that the
study’s use of the term “brain death” was a “misnomer” because the study marked “brain death”
before measurable brain activity terminated; he then indicated that pain might be felt until
measurable brain activity ceases. (Doc. 182-1, pp. 83-86.)5 The Court also cannot resolve this
factual dispute on summary judgment. Therefore, construing the Record in Plaintiff’s favor
reveals that it could be fifty-two to 240 seconds before the pentobarbital induces a state in which
Plaintiff could no longer sense that he is choking or unable to breathe.6
II. DISCUSSION
A moving party is entitled to summary judgment on a claim only upon a showing that
“there is no genuine issue of material fact and that the moving party is entitled to a judgment as a
matter of law.” See generally Williams v. City of St. Louis, 783 F.2d 114, 115 (8th Cir. 1986).
“[W]hile the materiality determination rests on the substantive law, it is the substantive law’s
identification of which facts are critical and which facts are irrelevant that governs.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, “[o]nly disputes over facts that might
affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment.” Wierman v. Casey=s Gen. Stores, 638 F.3d 984, 993 (8th Cir. 2011)
(quotation omitted). In applying this standard, the Court must view the evidence in the light
5
This may be a generous interpretation of Dr. Zivot’s testimony. However, (1) the Record must be construed in the
light most favorable to Plaintiff and (2) the Court is not required to resolve the elements of Plaintiff’s claim in any
particular order. Therefore, the Court deems it appropriate to adopt this interpretation of Dr. Zivot’s testimony in
order to frame the discussion about Plaintiff’s proffered alternative method of execution.
6
Defendants also suggest that the execution could be performed with Plaintiff in a different position, but there is no
evidence whether this has an effect on the procedure as a whole or the procedure for inserting a central line
specifically. In light of the Record’s silence on these matters, Defendants have not provided the Court with a basis
for granting summary judgment based on the possibility of performing the execution with Plaintiff in a sitting (or
other) position.
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most favorable to the non-moving party, giving that party the benefit of all inferences that may
be reasonably drawn from the evidence. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587-88 (1986); Tyler v. Harper, 744 F.2d 653, 655 (8th Cir. 1984), cert. denied, 470
U.S. 1057 (1985). A party opposing a motion for summary judgment may not simply deny the
allegations, but must point to evidence in the Record demonstrating the existence of a factual
dispute. Fed. R. Civ. P. 56(c)(1); Conseco Life Ins. Co. v. Williams, 620 F.3d 902, 909-10 (8th
Cir. 2010).
In Glossip v. Gross, the Supreme Court determined “what a prisoner must establish to
succeed on an Eighth Amendment method-of-execution claim.” 135 S. Ct. 2726, 2737 (2015).
“[D]ecisions in this area have been animated in part by the recognition that because it is settled
that capital punishment is constitutional, it necessarily follows that there must be a constitutional
means of carrying it out.” Id. at 2732-33. Moreover, “because some risk of pain is inherent in
any method of execution, we have held that the Constitution does not require the avoidance of all
risk of pain.” Id. at 2733. In light of these observations, a prisoner alleging that a particular
form of execution is cruel and unusual within the meaning of the Eighth Amendment must first
establish that the method to be utilized “presents a risk that is sure or very likely to cause serious
illness and needless suffering, and give rise to sufficiently imminent dangers.” Id. at 2737
(quotations and emphasis deleted). The prisoner must then “identify a known and available
alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth
Amendment method-of-execution claims.” Id. at 2731. The alternative must be “feasible,
readily implemented, and in fact significantly reduce[ ] [the] substantial risk of severe pain.” Id.
at 2737; see also Bucklew, 783 F.3d at 1128. The Court has discretion to decide the order in
which it will address these two components of Plaintiff’s claim. Bucklew, 783 F.3d at 1128.
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A. Risk of Serious Illness or Needless Suffering
Defendants contend that the uncontroverted facts demonstrate that Plaintiff is not sure or
likely to experience a serious injury or needless suffering.
Plaintiff contends that he has
demonstrated a serious risk that he will experience needless pain and suffering because (1) the
weakness in his peripheral veins precludes using them to administer the pentobarbital, and (2) he
will choke or otherwise be unable to breathe for an extended period of time before the
pentobarbital takes full effect. The Court concludes that the Record establishes that (1) the use
of Plaintiff’s femoral vein does not present any risk of serious illness or needless suffering, and
(2) the Record does not permit a conclusive determination regarding the risk that Plaintiff will
choke and be unable to breathe for a period of time that would violate the Eighth Amendment.
1. Use of Plaintiff’s Femoral Vein
As discussed in Part I.B, there is an apparent consensus that an IV cannot be safely
inserted in Plaintiff’s peripheral veins. However, the execution protocol allows a central line to
be inserted in Plaintiff’s femoral vein, and the Record establishes that this can be done without
the risk of complications attributable to Plaintiff’s congenital condition. The Court also notes
that Plaintiff’s legal argument does not discuss Defendant’s evidence that his femoral vein can be
used to administer the execution drugs. (Doc. 197, pp. 34-43.) Plaintiff discusses the use of his
femoral vein only in the portion of his Opposition that addresses the facts in the Record, and
even in that context he does not present any legal arguments based on those facts. Nonetheless,
the Court will briefly discuss these factual issues.
Generally speaking, Plaintiff addresses the potential difficulty in locating the femoral
vein and the fact that medical personnel might require multiple attempts to locate it.7 This, he
7
To the extent Plaintiff contends that there is no evidence demonstrating that Plaintiff’s femoral veins are unaffected
by his disease, this argument does not change the Court’s opinion. If there is no evidence that will establish any
7
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posits, will increase his stress, thereby increasing his breathing rate and making it more likely
that he will choke. Plaintiff also suggests that if the procedure is not performed properly the
drugs might be injected in an artery instead of the vein. (Doc. 197, pp. 18-20.) However,
Plaintiff does not quantify these risks, nor (as stated) does he explain how these facts
independently establish that the current protocol presents a risk of serious illness or needless
suffering. The possibility that Plaintiff might experience increased stress (or, more precisely,
more stress than the situation might otherwise produce) is particularly speculative, as are the
effects of that extra stress. Moreover, on several occasions the Court has observed that Plaintiff
cannot predicate his Eighth Amendment claim on the bare possibility that a medical procedure
might be performed incorrectly.
The uncontroverted facts demonstrate that the lethal injection protocol can be
implemented by using Plaintiff’s femoral vein, and that doing so will not create a substantial risk
of serious injury or needless suffering. Therefore, the fact that Plaintiff’s peripheral veins cannot
be used will not support the first component of Plaintiff’s claim.
2. Plaintiff’s Obstructed Airway
As discussed in Part I.B, the facts construed in Plaintiff’s favor would permit a factfinder
to conclude that for as long as four minutes Plaintiff could be aware that he is choking or unable
to breathe but be unable “adjust” his breathing to remedy the situation. In seeking summary
judgment Defendants have not contended that such a situation would not satisfy Glossip (and the
Court does not hold whether it does or does not); Defendants’ sole argument is that Plaintiff
would likely experience this sensation for twenty to thirty seconds or, at worst, fifty-two
seconds. As discussed before, this is a factual dispute that the Court cannot resolve on summary
problems with the use of Plaintiff’s femoral vein, then there is no reason to have a trial on the issue. Without
evidence, it is a foregone conclusion that Plaintiff cannot prevail on this issue.
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judgment, and would have to be resolved at trial. Therefore, solely for purposes of further
discussion, the Court presumes that there is a substantial risk that Plaintiff will experience
choking and an inability to breathe for up to four minutes.
B. Alternative Measures
Plaintiff contends that death through nitrogen gas-induced hypoxia will significantly
reduce the risks of severe pain and suffering. Defendants do not argue that this method of
execution is not feasible or readily implemented. Instead, Defendants argue that the Record
demonstrates this method of execution will not reduce Plaintiff’s risk of pain and suffering.
Plaintiff disputes this point and further contends that he is not required to identify an alternative
method of execution.
The Court addresses Plaintiff’s second point first. He contends that Glossip does not
apply because that case involved a facial challenge and he presents an as-applied challenge. The
Court disagrees. First, Glossip set forth the requirements for an Eighth Amendment challenge to
an execution method. The Supreme Court did not distinguish between facial and as-applied
challenges, and it did not provide a basis for interpreting Glossip as creating such a distinction.
To the contrary, the Supreme Court specified that the need to “identify a known and available
alternative method of execution that entails a lesser risk of pain [is] a requirement of all Eighth
Amendment method-of-execution claims.” Glossip, 135 S. Ct. at 2731 (emphasis supplied).
Second, the Eighth Circuit clearly directed that Plaintiff must (1) identify at the pleading stage
and (2) eventually prove that there is an alternative that will significantly reduce the risk.
Bucklew, 783 F.3d at 1128. This is the law of the case, and the Court must adhere to it. Third,
the Eighth Circuit has explicitly rejected Plaintiff’s argument in other cases. Williams v. Kelley,
854 F.3d 998, 1001 (8th Cir.), cert. denied, 137 S. Ct. 1284 (2017) (citing Johnson v. Lombardi,
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809 F.3d 388, 391 (8th Cir.), cert. denied, 136 S. Ct. 601 (2015)). For these reasons, the Court
concludes Plaintiff is required to prove that there is a feasible and readily available alternative
that will significantly reduce the risk of suffering that lethal injection will present.
The Court agrees with Defendants that the facts in the Record do not present a triable
dispute on this issue.
Given the risk of suffering that the Court identified as potentially
supported by the Record, (see Part II.A.2, supra), the question is whether (1) the use of nitrogen
gas will cause Plaintiff to become unaware of his choking and breathing difficulties sooner than
he would under the current protocol, and (2) whether that difference in time is sufficient to
permit the Court to find that nitrogen gas will make a “significant” difference in Plaintiff’s
suffering. Put another way: a finder of fact might conclude that if pentobarbital is used, there is a
four minute period of time during which Plaintiff would experience significant suffering. Given
that, could a finder of fact conclude that the use of nitrogen gas will significantly reduce that
period of awareness?
Defendants point to their expert’s supplemental report, wherein he states that “the use of
lethal gas does not hold any advantage compared to lethal injection with respect to pain and
suffering. Both methods would result in minimal pain and suffering.” (Doc. 182-1.) This
requires Plaintiff to identify facts in the Record that create a factual dispute necessitating a trial,
but Plaintiff has not identified any such facts. Dr. Zivot would not address the issue in his
deposition, (Doc. 182-1, pp. 38-40), and Plaintiff does not contend that Dr. Zivot’s testimony
creates a factual dispute. Plaintiff instead relies on Dr. Antognini’s deposition, but the Court has
reviewed the cited testimony and finds nothing that supports Plaintiff’s position.8 Dr. Antognini
8
Plaintiff also attempts to create factual disputes about the Missouri Department of Corrections’ efforts to research
the viability and effects of executing prisoners with nitrogen gas, but the issue is not relevant under the governing
legal principles.
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was asked to compare the use of pentobarbital to nitrogen gas, but his answer does not indicate
that there are any differences between them. (Doc. 182-5, pp. 58-59.) To the contrary, he stated:
You know, you get – you can get suffering from hypoxia, you know, because
somebody can be awake and realize that they’re not getting enough oxygen. So
depending on – on how it’s used, you might get more suffering from nitrogen gas
than you would from Pentobarbital. Or you might get less suffering, you know,
it depends on how you would use it, I guess.
(Doc. 182-5, p. 59.) As relevant to the claim at issue, Dr. Antognini specifically stated that he
believed there would be no difference in the “speed” of lethal gas as compared to pentobarbital.
(Id.)
Plaintiff points to Dr. Antognini’s indication that nitrogen gas would “quickly” cause
unconsciousness, (Doc. 182-5, p. 59), but this is unavailing for two reasons. First, Dr. Antognini
said the same thing about pentobarbital; in his opinion, both would “quickly” cause
unconsciousness. Thus, this opinion does not support the proposition that nitrogen hypoxia
would cause unconsciousness sooner than pentobarbital. Second, the premise for Plaintiff’s
claim is that there is a period between unconsciousness and brain death during which he will
experience pain. Therefore, establishing the speed with which unconsciousness will be achieved
does not support Plaintiff’s claim; he must identify evidence establishing how quickly nitrogeninduced hypoxia will cause brain death so that any such evidence can be contrasted with Dr.
Zivot’s testimony that Plaintiff might be aware that he is choking for up to four minutes. There
is no evidence suggesting that nitrogen hypoxia will be faster than pentobarbital, so there is no
factual dispute to resolve. In the absence of evidence contradicting Defendants’ expert and
supporting Plaintiff’s theory, there is not a triable issue.
Plaintiff also points to the fact that Louisiana and Oklahoma have approved the use of
nitrogen gas in their death penalty protocols. This evidence might be relevant in establishing the
feasibility or ready availability of this method of execution, but it does not establish whether
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nitrogen gas will significantly reduce the risk of suffering Plaintiff has described. Plaintiff cites
a report from Oklahoma for the proposition that “high altitude pilots who train to recognize the
symptoms of nitrogen hypoxia in airplane depressurizations do not report any feelings of
suffocation, choking or gagging.” (Doc. 197, p. 48 n.6 (citing Doc. 192-14, p. 78).) Assuming
this is competent evidence that can be considered on summary judgment, Plaintiff is not trained
to recognize the symptoms of nitrogen hypoxia and it is unlikely that the pilots who were trained
to recognize the symptoms of hypoxia also suffered from cavernous hemangioma. Plaintiff
additionally refers to a report from Louisiana, which itself cites other materials for the
proposition that nitrogen hypoxia allows a person to expel carbon dioxide buildup and thereby
reduce suffocation caused by respiratory acidosis. (Doc. 197, p. 48 n.6 (citing Doc. 192-17, p.
19).)
Assuming again that this is competent evidence, Plaintiff’s theory is that he will
experience suffocation due to his tumors, not due to respiratory acidosis. Finally, none of this
evidence purports to compare the effects of nitrogen gas hypoxia to the effects of pentobarbital,
particularly as related to the speed with which brain death will occur. Therefore, this anecdotal
evidence does not conflict with Dr. Antognini’s testimony and therefore does not create a factual
dispute.9
The Record establishes that the use of nitrogen gas will not act faster than pentobarbital.
Therefore, nitrogen gas will not significantly reduce the risk of suffering Plaintiff faces if he is
executed under Missouri’s current protocol.
9
Plaintiff has also provided a “Preliminary Draft” of a document prepared at the request of an Oklahoma State
Representative. (Doc. 199-12, pp. 15-28.) The authors’ qualifications to opine on medical matters are not
established. The report bears the instruction “Do Not Cite.” The report generally discusses the feasibility and
effectiveness of using nitrogen gas in executions, but it does not purport to answer the questions relevant to the case.
For these reasons, this report also does not create a factual dispute.
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III. CONCLUSION
For the reasons set forth above, Defendants’ Motion for Summary Judgment on Count I
is GRANTED.
IT IS SO ORDERED.
/s/ Beth Phillips
BETH PHILLIPS, JUDGE
UNITED STATES DISTRICT COURT
DATE: June 15, 2017
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IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
RUSSELL BUCKLEW,
Plaintiff,
v.
GEORGE A. LOMBARDI, et al.,
Defendants.
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Case No. 14-8000-CV-W-BP
ORDER AND OPINION DENYING PLAINTIFF’S MOTION
TO ALTER OR AMEND JUDGMENT
On June 15, 2017, the Court granted summary judgment to Defendants on the sole
remaining claim from the Fourth Amended Complaint. (Doc. 202.) In that claim, Plaintiff
asserted that the State’s execution protocol as applied to him would violate the Eighth
Amendment’s proscription against cruel and unusual punishment. Plaintiff has now filed a
Motion to Alter or Amend Judgment pursuant to Rule 59(e). “Rule 59(e) motions serve the
limited function of correcting manifest errors of law or fact or to present newly discovered
evidence.” United States v. Metropolitan St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir.
2006). Plaintiff does not seek to present newly discovered evidence. Instead, he contends the
Court (1) overlooked certain facts, (2) applied the wrong legal standard, and (3) limited
discovery in a manner that deprived him of a fair opportunity to support his claims. The Court
discusses each of these issues below and concludes the motion, (Doc. 210), should be DENIED.
I. BACKGROUND
Placing Plaintiff’s arguments in context requires a summary of the law governing
Plaintiff’s claim and the basis for the Court’s June 15 Order. As the Court explained,
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a prisoner alleging that a particular form of execution is cruel and unusual within
the meaning of the Eighth Amendment must first establish that the method to be
utilized presents a risk that is sure or very likely to cause serious illness and
needless suffering, and give rise to sufficiently imminent dangers. The prisoner
must then “identify a known and available alternative method of execution that
entails a lesser risk of pain, a requirement of all Eighth Amendment method-ofexecution claims. The alternative must be feasible, readily implemented, and in
fact significantly reduce the substantial risk of severe pain.
(Doc. 202, p. 6 (quotations and citations omitted).) The current execution protocol calls for “the
intravenous administration of pentobarbital in dosages sufficient to cause unconsciousness and
eventually death.” (Doc. 202, p. 3.) Plaintiff suffers from a congenital medical condition known
as cavernous hemangioma, which “causes clumps of weak, malformed blood vessels and tumors
to grow throughout his body, including his head, face, neck and throat.” (Doc. 202, p. 2.) He
alleges that his condition makes it difficult to breathe and that after the pentobarbital takes effect
he will experience a choking sensation even after he is unconscious because he will be unable to
control his breathing.
In granting Defendants’ summary judgment the Court concluded that the Record,
construed in the light most favorable to Plaintiff, demonstrated that there is a risk that Plaintiff
will experience choking and an inability to breathe for fifty-two to 240 seconds – the time
between unconsciousness and brain death. (Doc. 202, pp. 4-5, 8-9.) The Court then considered
whether Plaintiff’s proposed alternative – nitrogen gas – would “cause Plaintiff to become
unaware of his choking and breathing difficulties sooner than he would under the current
protocol, and (2) whether that difference in time is sufficient to permit the Court to find that
nitrogen gas will make a ‘significant’ difference in Plaintiff’s suffering.” (Doc. 202, p. 10.)
The Court reviewed the evidence in the Record and determined that the uncontroverted facts
demonstrated that hypoxia induced by nitrogen gas “will not act faster than pentobarbital.
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Therefore, nitrogen gas will not significantly reduce the risk of suffering Plaintiff faces if he is
executed under Missouri’s current protocol.” (Doc. 202, p. 12.)
II. DISCUSSION
A. Factual Matters
Plaintiff contends that the Court erred by failing to contrast the effect of him being in a
supine position under the State’s current execution protocol evidence with his ability to be seated
if he is executed with nitrogen gas. As the Court noted, Plaintiff has difficulty breathing, “and
that difficulty is exacerbated when he is in a supine position.” (Doc. 202, p. 3.) However, there
is no evidence in the Record establishing that (1) Plaintiff must be in a supine position after the
IV is inserted, or, more importantly, that (2) sitting while nitrogen gas is administered will make
an appreciable difference in Plaintiff’s ability to breathe. As the Court explained, “the premise
for Plaintiff’s claim is that there is a period between unconsciousness and brain death during
which he will experience pain” because he will be unable to control his breathing and prevent
choking. (Doc. 202, p. 11.) Plaintiff does not identify any overlooked evidence establishing that
he must remain on his back after the IV is inserted.
He also does not identify any overlooked evidence that there is a significant difference in
his ability to breathe when he is unconscious and sitting as compared to when he is unconscious
and lying down. To the contrary, as the Court explained, there is no evidence in the Record
establishing that nitrogen gas will cause brain death sooner than pentobarbital, which means that
with nitrogen gas Plaintiff could be aware that he is choking for up to four minutes, just as the
Record (construed in Plaintiff’s favor) suggests would be the case with pentobarbital. (Doc. 202,
p. 11.) Thus, even if he could not sit upright after the IV is inserted, there is no evidence
suggesting this would cause suffering that would be alleviated through the use of nitrogen gas.
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Plaintiff also contends the Court misinterpreted an Interim Report from a Grand Jury in
Oklahoma, which heard testimony from a professor that “high altitude pilots who train to
recognize the symptoms of nitrogen hypoxia in airplane depressurizations do not report any
feelings of suffocation, choking, or gagging.” (Doc. 192-14, p. 78.) The Court noted this
information and observed that “[a]ssuming this is competent evidence that can be considered on
summary judgment, Plaintiff is not trained to recognize the symptoms of nitrogen hypoxia and it
is unlikely that the pilots who were trained to recognize the symptoms of hypoxia also suffered
from cavernous hemangioma.”
(Doc. 202, p. 12.)
Plaintiff argues that the Court
misapprehended the point of this information, which was to establish that even pilots trained to
recognize nitrogen hypoxia do not report choking or suffocation, so it is unlikely that Plaintiff
would notice such effects. With this explanation, Plaintiff is correct that his lack of training is
not relevant. However, Plaintiff has not overcome the Court’s concerns that a professor’s
testimony to a grand jury about what pilots have reported is not competent medical evidence
about the effects of nitrogen hypoxia. Relatedly, it remains unlikely that the pilots suffered from
cavernous hemangioma, so their anecdotal reports are not sufficient to satisfy Plaintiff’s burden.
Plaintiff’s claim required evidence establishing that nitrogen hypoxia produces a shorter
time between unconsciousness and brain death than would pentobarbital. There is no such
evidence in the Record. There is, however, evidence that the time between unconsciousness and
brain death (whatever that interval is) would be the same under both execution methods.
Accordingly, there is no basis in fact for altering the Court’s judgment.
B. Interpretation and Application of the Legal Standard
Plaintiff contends the Court has “imposed an impossible standard on Plaintiff” because
his unique medical condition makes it impossible for him to produce the “side-by-side
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comparison between the length of time required to produce unconsciousness by lethal injection
versus lethal gas.” (Doc. 210, p. 5.) He also believes he was “penalize[d] . . . because his expert
would not opine on how to kill Plaintiff with lethal gas.” (Id.) While Plaintiff argues against the
legal standard utilized by the Court, he does not contend that it was wrong. That is, Plaintiff
does not argue that the Court failed to follow the governing standard as set forth in such cases as
Glossip v. Gross, 135 S. Ct. 2726 (2015), and Bucklew v. Lombardi, 783 F.3d 1120 (8th Cir.
2015) (en banc), and thus has not demonstrated that the Court committed legal error.
C. Discovery Issues
Early in the discovery process, the Court issued an Order Regarding the Scope of
Discovery. (Doc. 105.) Plaintiff contends that his “ability to prove his Eighth Amendment claim
has been crippled by” limits on access to information about and from members of the execution
team. (Doc. 210, p. 6.) The Court addressed the issue in the order regarding the scope of
discovery, as well as at other times, (e.g., Doc. 183; Doc. 214), and further discussion of the
issue is unnecessary.
III. CONCLUSION
For these reasons, Plaintiff’s motion for relief pursuant to Rule 59(e) is DENIED.
IT IS SO ORDERED.
/s/ Beth Phillips
BETH PHILLIPS, JUDGE
UNITED STATES DISTRICT COURT
DATE: August 21, 2017
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IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
RUSSELL BUCKLEW,
Plaintiff,
v.
GEORGE A. LOMBARDI,
DAVID DORMIRE, and TROY STEELE,1
Defendants.
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Case No. 14-08000-CV-W-BP
ORDER REGARDING SCOPE OF DISCOVERY
Plaintiff was convicted in state court of kidnaping, rape and murder, and was sentenced to
death. He challenges Missouri’s planned method of execution as applied to him, contending that
the current lethal injection protocol will cause him needless suffering and pain in violation of the
Eighth Amendment. At the Court’s direction the parties filed briefs regarding the scope of
discovery, and the parties’ positions conflict in certain respects.
The Court will confine the scope of discovery to the matters alleged in Count I of the
Fourth Amended Complaint. This Order is intended to provide guidance regarding the proper
scope of discovery.
I. BACKGROUND
A.
The scope of discovery is informed by the issues involved in the case, so the Court begins
by describing Plaintiff’s claim and the governing law. Plaintiff’s remaining claim is Count I of
the Fourth Amended Complaint. (Doc. 53; see also Doc. 63 (dismissing Counts II and III of the
1
Troy Steele has succeeded Terry Russell as the Warden of the Eastern Reception, Diagnostic, and Correctional
Center. Accordingly, Troy Steele is substituted as a Defendant in place of Terry Russell. Fed. R. Civ. P. 25(d). The
Clerk of Court is directed to amend the Docket Sheet accordingly.
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Fourth Amended Complaint).) As has been described in various orders, Plaintiff suffers from
cavernous hemangioma, which is a congenital condition that causes clumps of weak, malformed
blood vessels and tumors to grow throughout his body, including his head, face, neck and throat.
These tumors are very susceptible to rupture. Plaintiff alleges that execution by lethal injection
is likely to cause the tumors to rupture because lethal injection depends on the circulatory
system, and that the ruptures can increase his pain and suffering because (1) the chemicals will
not travel through his body in the manner intended and (2) ruptured tumors in his throat can
cause him to choke. The Fourth Amended Complaint does not allege that changing the lethal
injection protocol will alleviate these risks; to the contrary, the allegations broadly relate to any
method of lethal injection. The Fourth Amended Complaint alleges that execution by lethal gas
will significantly reduce the risk that tumors will rupture and will not cause the needless
suffering associated with an execution method that relies on his compromised circulatory system.
In declining to dismiss this claim, the Court held that Plaintiff’s allegations satisfied the
pleading requirements set forth in Glossip v. Gross, 135 S. Ct. 2726 (2015). There, the Supreme
Court described its prior holdings as establishing that a plaintiff must establish “a substantial risk
of serious harm, an objectively intolerable risk of harm that prevents prison officials from
pleading that they were subjectively blameless for purposes of the Eighth Amendment.” 135 S.
Ct. at 2737 (quotations omitted). A plaintiff must then “identify an alternative that is feasible,
readily implemented, and in fact significantly reduces a substantial risk of severe pain.” Id.
(quotation omitted). Glossip’s holding is similar to the Eighth Circuit’s prior decision in Zink v.
Lombardi, where the Court of Appeals held that “to establish a constitutional violation, an
inmate ultimately must prove that another execution procedure exists that is feasible and readily
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implemented, and that the alternative method will significantly reduce a substantial risk of severe
pain.” 783 F.3d 1089, 1103 (8th Cir.) (en banc), cert. denied, 135 S. Ct. 2941 (2015).
B.
Plaintiff has proposed discovery be conducted in six broad categories: the execution
protocol, the lethal chemicals utilized, the execution team, alternative methods of execution,
DOC policies and procedures, and “Fact and/or Expert Witnesses.” Specific topics are set forth
within each category. In addition, Plaintiff intends to “depose all medical members of the
execution team and the protocol team” as well as all fact and expert witnesses (among others).
Plaintiff also indicates he “may request” an opportunity inspect the execution chamber.
Defendants contend that discovery should be conducted in phases. They propose that the
first phase be limited to the feasibility of lethal gas as a method of execution, the likelihood that
lethal gas will decrease the risk of pain, and matters related to Defendants’ statute of limitations
defense. Defendants intimate there would then be an opportunity for them to seek summary
judgment, reasoning that if Plaintiff cannot prevail on the issues involved in the first discovery
phase there is no need to conduct further discovery. Should Plaintiff demonstrate at least a
triable issue that his claim is not time-barred and that lethal gas is feasible and will significantly
decrease the risk of pain and suffering, discovery can proceed to the second phase. At that time,
discovery regarding Plaintiff’s medical condition and the effects of lethal injection can be
conducted. Finally, Defendants contend that many subjects described in Plaintiff’s discovery
plan are unnecessary in light of the issues to be resolved.
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II. DISCUSSION
A.
For ease of discussion, the Court first addresses Defendants’ proposal to conduct phased
discovery.
The Court is not persuaded that phased discovery will prove beneficial.
In
remanding this case, the Eighth Circuit suggested that “[t]he District Court will have the usual
authority to control the order of proof, and if there is a failure of proof on the first element that it
chooses to consider, it would not be an abuse of discretion to give judgment for defendants
without taking further evidence.” Bucklew v. Lombardi, 783 F.3d 1120, 1128 (8th Cir. 2015) (en
banc) (quotation omitted). The Court now has the benefit of the Fourth Amended Complaint,
and the issues it presents suggests that parsing out some issues for discovery and reserving others
will not be useful. For instance, Defendants suggest that Phase 1 include discovery related to the
likelihood that lethal gas will significantly reduce the risk of unnecessary pain and injury to
Plaintiff. However, determining the extent to which lethal gas will reduce that risk requires
consideration of the effect of lethal gas on Plaintiff given his medical condition – and Defendants
suggest that discovery about Plaintiff’s condition be postponed until Phase 2.
Similarly,
determining whether any reduction in pain and suffering is “significant” – a matter Defendants
propose for Phase 1 – requires a comparison to the pain and suffering that is likely to occur
through the use of lethal injection, but Defendants propose that discovery on this issue also be
postponed until Phase 2.
The Court further believes that phased discovery may result in duplication of effort and
prolong the ultimate resolution. For instance, if discovery occurs in phases, witnesses may have
to be deposed twice: first to discuss lethal gas, then again to discuss lethal injection. Defendants’
proposal also raises the potential of multiple “rounds” of dispositive motions, one after each
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phase of discovery. Finally, discovery is currently scheduled to close by the end of this year, and
dispositive motions are to be filed by the end of January 2017. (Doc. 79, ¶¶ 5, 7.) Even if these
deadlines are extended for some reason, the Court doubts that phased discovery would expedite
the ultimate resolution of this case, particularly given that the scope of discovery will not be as
broad as Plaintiff contemplates. (See Part II.B, infra.) For these reasons, the Court is disinclined
to require that discovery be conducted in phases.
B.
The scope of discovery is limited to nonprivileged matters2 that are “relevant to any
party’s claim or defense and proportional to the needs of the case, considering” a variety of
factors. Fed. R. Civ. P. 26(b)(1). In light of Plaintiff’s proposal, the most problematic factors
are “the importance of the issues at stake in the action [and] the importance of the discovery in
resolving the issues,” id., because these considerations demonstrate Plaintiff’s planned scope for
discovery is overly broad.
As noted earlier, Plaintiff has proposed discovery be conducted in six broad categories,
with each category containing specific topics. The Court’s discussion is organized around these
six categories.
1.
Execution Protocol – Plaintiff anticipates requesting documents relating to the
development and adoption of the current protocol, research regarding the chemicals to be used,
the effects of those chemicals on the human body, documents concerning alternative lethal
injection protocols that were researched or considered, and “documents concerning the complete
execution protocol, including all phases of the execution, from the arrival of the team at the
facility to the documentation and disposal of the lethal chemicals.” (Doc. 100, p. 7.) Some of
2
The Court does not offer an opinion regarding Defendants’ claim of privilege because, as Defendants concede,
“[p]rivilege analysis is beyond the scope of” the parties’ briefing, (Doc. 102, pp. 6), and because the issue is best
addressed in the context of a specific discovery request.
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this information is relevant to the issues in the case. For instance, Plaintiff is entitled to discover
the execution protocol that Defendants intend to employ, including the chemicals to be used and
the manner in which the chemicals will be administered. Plaintiff is also entitled to obtain any
information Defendants may have regarding the chemicals’ effects on the human body.
However, information relating to “the documentation and disposal of the lethal chemicals” is not
related to Plaintiff’s claims. Similarly, information related to other methods of lethal injection
that might have been considered by DOC is not relevant because Plaintiff does not claim use of
different chemicals is a viable alternative: not only is this revealed by the Fourth Amended
Complaint, but he admits that he “has alleged that any execution by lethal injection poses
unacceptable and unconstitutional risks to him . . . .” (Doc. 100, p. 6.) Finally, “documents
about the development and adoption of the current lethal injection protocol, including each
protocol developed since 2013 and all amendments and changes,” (Doc. 100, p. 7), are not
relevant to any issues in the case. The current protocol is relevant, but prior protocols and the
evolution of the process over time are not relevant.
Plaintiff justifies discovery about alternative chemicals and further details about the
process to guard against Defendants contending that lethal injection is the only available and
viable method of execution. In that event, Plaintiff wishes to conduct broad discovery to “seek[ ]
ways that changes or alterations not previously known or contemplated might significantly
reduce the risks to Mr. Bucklew and, hence, achieve compliance with the Constitution.” (Doc.
100, p. 6.) However, the only alternative method Plaintiff has pleaded is execution by lethal gas
– he has not alleged that changes to the lethal injection protocol or the use of different chemicals
will “achieve compliance with the Constitution.”
To the contrary, he has disclaimed the
possibility that any utilization of lethal injection will reduce the risk of pain and suffering.
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The Fourth Amended Complaint does not justify wide-ranging scrutiny into matters
unrelated to his claims.3 This conclusion is not only supported by Rule 26 generally, but by the
pleading requirements set forth in Glossip and Zink. As the Eighth Circuit explained, “[t]he
existence of . . . an alternative method of execution . . . is a necessary element of an Eighth
Amendment claim, and this element – like any element of a claim – must be pleaded
adequately.” Zink, 783 F.3d at 1103. Moreover, a general allegation “that other methods would
be constitutional, devoid of further factual enhancement, fails to state a claim under the Eighth
Amendment.” Id. Here, Plaintiff has not even made a general allegation that changes to the
lethal injection process would be constitutional – he has instead denied that any changes can be
made. Thus, he has not presented an Eighth Amendment challenge that justifies exploring
intricate details of the lethal injection protocol in order to determine if changes can be made.
2. Lethal Chemicals – Plaintiff seeks a list of the chemicals utilized by the State to
execute inmates, and the Court agrees Plaintiff is entitled to discover the chemicals that the State
intends to use. Plaintiff is also entitled to obtain packaging, labeling, and other inserts to the
extent that they describe the chemicals’ contents or their effects on the human body (including
warnings), although the name of the manufacturer or provider can be redacted.
Plaintiff would seek documents relating to the purchase, procurement, prescriptions,
attempts to obtain chemicals, the DOC’s inventory and expiration dates, and the method of
maintaining, storing and securing lethal chemicals. None of this information is relevant to
Plaintiff’s claim.
3
Plaintiff also points to the Court’s prior observation that “‘if discovery reveals the availability or feasibility of a
different, as-yet unpleaded method, there are procedures to deal with such an eventuality.’” (Doc. 107, p. 3 (quoting
Doc. 52, p. 10).) The Court did not intend this statement to permit Plaintiff to conduct discovery beyond the bounds
set by the pleadings.
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3. Execution and Protocol Teams (Medical and Non Medical) – This category seeks
information about the individuals who will participate in or conduct the execution. Plaintiff
explains that “given the severity of his medical condition, the training and qualifications of the
execution team members are especially important, as the risks of a botched or excruciating
execution are particularly great in his case.” (Doc. 100, p. 6.) However, his remaining claim
does not allege that changing the execution team members will significantly decrease the risk of
pain and suffering, so the relevance of this information is not evident. This information might
have been relevant to Count II,4 but Count II was dismissed. The Court holds that detailed
discovery about the execution team members is unnecessary to resolving the issues in this case.
Plaintiff may obtain, as part of the discovery regarding the execution protocol, information
generally describing the composition of the team (e.g., the number of doctors, nurses,
anesthesiologists) as well as the functions they will perform. Finally, in light of the lack of a
relationship between the execution team members and the specifics of Plaintiff’s claim, the Court
discerns no need for Plaintiff to learn the identities of, or depose, the execution team members.
4. Alternative Methods of Execution – Within this category Plaintiff seeks documents
regarding alternative methods of execution and further specifies that the scope of this category
includes, but is not limited to, lethal gas. Information related to lethal gas is clearly relevant
because Plaintiff has alleged that lethal gas is a viable and available alternative and a basis for
believing that lethal gas will significantly decrease the risk of pain and suffering. However, it is
the only alternative method he has alleged, so it is the only method for which discovery is
justified and the breadth of this category must be limited accordingly.
4
Count II alleged, among other things, that executing Plaintiff would violate the Constitution because there was “no
contingency plan in the event the lethal drugs fail to kill Mr. Bucklew” and there was no training of personnel or
contingency plans in place to address the possibility of a “botched execution.” (Doc. 53, ¶¶ 155-57.)
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5. DOC Policies and Procedures – The topics in this category relate to DOC policies for
obtaining or using lethal chemicals, as well as documents relating to the training of execution
team members. To the extent that “prescribing, administering, or using” lethal chemicals relates
to the protocol, this information has been addressed in the context of other categories. The
remaining respects are beyond the proper scope of discovery for this case. Plaintiff’s claim does
not depend upon how or from where the chemicals are procured, nor does it depend on the
execution team’s training. Therefore, discovery into these issues is unnecessary.
6. Fact and/or Expert Witnesses – This category seeks findings and conclusions from
fact and expert witnesses, and other information that must be disclosed pursuant to Rule 26(a)(2).
Obviously, the parties must comply with Rule 26(a)(2). It is not clear what else this category
encompasses, so the Court cannot comment further.
III. CONCLUSION
For the reasons set forth above, the Court denies Defendants’ request that discovery be
conducted in phases. Moreover, the scope of discovery shall be limited to the claim and theory
advanced in Count I of the Fourth Amended Complaint, as set forth more fully in Part II.B of this
Order.
IT IS SO ORDERED.
/s/ Beth Phillips
BETH PHILLIPS, JUDGE
UNITED STATES DISTRICT COURT
DATE: August 11, 2016
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IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
RUSSELL BUCKLEW,
Plaintiff,
v.
GEORGE A. LOMBARDI, et al.,
Defendants.
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Case No. 14-8000-CV-W-BP
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION TO COMPEL
This is a civil rights lawsuit, brought by a condemned inmate. Plaintiff contends that the
State’s method of execution as applied to him violates the Eighth Amendment because of his
unique medical condition. More specifically, Count I of the Fourth Amended Complaint alleges
that given his circulatory and related disorders, execution through lethal injection poses a risk of
severe pain and suffering that can be alleviated if he is executed through the use of lethal gas.
Counts II challenged the staffing and procedures to be employed during the execution and Count
III asserted Plaintiff’s First Amendment rights were violated because he was not provided
information about the source of the chemicals to be used in the execution. These two claims
were dismissed. (Doc. 63, pp. 14-16.)
Early in the discovery process, the Court issued an Order Regarding Scope of Discovery
(“the Scope Order”). (Doc. 105.) The Order discussed broad categories and determined that
some were proper subjects of discovery and some were not.
Shortly before the discovery deadline of March 10, 2017, Plaintiff contacted the Court to
seek resolution of outstanding discovery disputes. A telephone conference was held on March
15, 2017, (“the March 15 conference”), following which the Court, inter alia, directed Plaintiff
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to file a Motion to Compel. (Doc. 163, pp. 1-2.) The parties were also directed to provide any
related written discovery requests and the corresponding answers/objections.
The Motion to Compel, (Doc. 169), is fully briefed.
It raises issues regarding (1)
Plaintiff’s request to elicit further information related to, or depositions of, members of the
execution team (particularly M2 and M3), (2) Defendants’ provision of a privilege log, and (3)
Defendants’ efforts to fully search e-mails for responses to the discovery requests. The Court
has considered the parties’ written arguments, the discovery requests, and the comments made
during the March 15 conference. In light of these materials, the pleadings, and the Court’s prior
Orders (including the Scope Order), the Court resolves the parties’ arguments as discussed
below.
I. Additional Information About Members of the Execution Team
Plaintiff contends that Defendants should be required to provide additional information
about the members of the execution team. Specifically, Plaintiff wants information about the
team members’ training and experience, as well as access to depositions of team members taken
in other cases that are the subject of Protective Orders issued in those cases. Defendants contend
that this information is not relevant in light of Plaintiff’s remaining claim. Consistent with its
prior rulings, the Court agrees with Defendants that this information exceeds that which is
necessary in light of Count I’s allegations.
The Court’s explanation begins with the Fourth Amended Complaint, and in particular
the differences between Count I (the only remaining claim) and Count II (which has been
dismissed). Count I alleges that the use of lethal injection violates the Constitution because of
Plaintiff’s cavernous hemangioma and related complications. Plaintiff does not contend that
using different chemicals, or administering chemicals in a different way, will diminish the risk of
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pain and suffering. According to Count I, the only way to significantly diminish the pain and
suffering resulting from lethal injection is to execute Plaintiff with lethal gas. In contrast, Count
II alleged that Plaintiff “will experience pain and suffering unless certain changes are made in
the lethal injection protocol, and the failure to make these changes constitutes a deliberate
indifference to his serious medical needs in violation of the Eighth Amendment.” (Doc. 63, p.
14.) The Court dismissed Count II because the Fourth Amended Complaint did not “allege
sufficient facts to indicate that the staffing and planning procedures Defendants intend to utilize
will create a substantial risk of serious harm” and “does not allege what procedures should be
employed (other than not performing an execution).” (Doc. 63, pp. 14-15.)
The differences in the allegations (and fates) of Counts I and II formed the basis for
several decisions in the Scope Order, including the Court’s decision regarding information about
the execution team. The Scope Order’s discussion of the issue is set forth below:
Plaintiff explains that “given the severity of his medical condition, the training
and qualifications of the execution team members are especially important, as the
risks of a botched or excruciating execution are particularly great in his case.”
(Doc. 100, p. 6.) However, his remaining claim does not allege that changing the
execution team members will significantly decrease the risk of pain and suffering,
so the relevance of this information is not evident. This information might have
been relevant to Count II, but Count II was dismissed. The Court holds that
detailed discovery about the execution team members is unnecessary to resolving
the issues in this case. Plaintiff may obtain, as part of the discovery regarding the
execution protocol, information generally describing the composition of the team
(e.g., the number of doctors, nurses, anesthesiologists) as well as the functions
they will perform. Finally, in light of the lack of a relationship between the
execution team members and the specifics of Plaintiff’s claim, the Court discerns
no need for Plaintiff to learn the identities of, or depose, the execution team
members.
(Doc. 105, p. 8 (footnote omitted).) Thus, the additional information Plaintiff now seeks is
barred by the Scope Order.
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Plaintiff contends that the Scope Order should be amended because his claim requires he
prove that the execution protocol presents a substantial risk of serious harm and that an
alternative method of execution will significantly reduce that risk. However, the substantial risk
of serious harm that forms the basis for Count I does not depend on the execution team’s training
and experience. For instance, while Count I alleges that the execution protocol will cause him to
hemorrhage, cough, choke and suffocate, thereby suffering an “excruciating execution,” it does
not allege that this risk is due to the execution team’s training or expertise. Count I also does not
allege that more or different training will decrease these risks.
Relatedly, Plaintiff contends that information about the individuals involved in his
execution – including their training – is relevant “because during various depositions in this case,
Defendants made clear that there are various unwritten and/or informal protocols that Defendants
and the execution team rely upon to carry out an execution – many of which are contingent on
the degree of training of the medical team members.” (Doc. 169, p. 10.) As an example, it may
be necessary to utilize a central line or a cutdown procedure, and Plaintiff wants to explore the
execution team members’ qualifications for performing these procedures.
However, this
explanation is no different than the explanation Plaintiff originally offered prior to entry of the
Scope Order, and it remains the case that Plaintiff’s claim does not depend upon either the
manner in which a lethal injection is performed or the qualifications of the execution team
members. Discovery is appropriate to determine how a central line or a cutdown procedure
affects the risk of pain and suffering Plaintiff has identified. However, Plaintiff’s claim does not
depend on “how well qualified” the execution team is.
Finally, Plaintiff suggests that the execution team’s qualifications and training are at issue
because some information on these topics has been divulged during discovery. (Doc. 169, pp. 3-
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4; see also Doc. 164, pp. 13-14.) The Court does not agree that mere discussion of or reference
to a topic during discovery makes further discovery on that matter appropriate. There is no claim
remaining that requires consideration of the execution team’s qualifications and training, so the
Court concludes that the Scope Order sets proper limits on discovery. Plaintiff’s request for
additional details about the execution team members and access to their depositions from other
cases is denied.
II. Privilege Log
Plaintiff served Interrogatories and a Request for Production of Documents (“RFP”) in
November 2016. Defendants responded in December 2016.1 In most respects, Defendants’
responses (1) raised “non-privilege based” objections, including objections based on vagueness,
temporal scope, or perceived violations of the Scope Order, (2) reserved various privileges
depending on how the other objections were resolved, (3) provided responsive documents, or (in
some cases) (4) described documents that were privileged. The parties discussed Defendants’
objections but did not agree on a resolution.
In presenting the issues to the Court at this juncture, Plaintiff focuses on Defendants’
claims of privilege and argues the Defendants have not provided a privilege log as required by
Rule 26(b)(5). Defendants rely on Rule 34(b)(1)(C) to contend that their obligation was fulfilled
so long as they “explicitly identified in the discovery response (and production log) if a relevant
privileged record communication was withheld and explained the basis for that privilege.” (Doc.
173, p. 16.) The Court disagrees with Defendants and concludes that Rule 26(b)(5)(ii) – which
specifically describes the contents of a privilege log – controls.
1
The discovery requests issued to each Defendant are similar, as are the responses. Plaintiff has supplied the
requests posed to Defendant George Lombardi (and his responses) to represent all of the requests and responses.
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However, a privilege log is required only “[w]hen a party withholds information
otherwise discoverable,” Fed. R. Civ. P. 26(b)(5)(A) (emphasis supplied), and with Defendants’
other objections unresolved it has not been established that Defendants are withholding any
discoverable information because it is privileged.
Thus, before addressing Defendants’
obligations under Rule 26(b)(5), the Court must determine whether anything Plaintiff has not
been provided is discoverable.
Interrogatory #1 asks Defendants to identify all policies and protocols that apply to execution by
lethal injection. Defendants provided the current written execution protocol, and Plaintiff is not
entitled to anything further.2 Defendants also suggest a “closed portion” of the protocol is not
being disclosed pursuant to § 546.720 of the Revised Missouri Statutes, which relates to
identification of members of the execution team; this is sufficient to identify what has been
withheld and is functionally equivalent to the information required by Rule 23(b)(5).
Interrogatory #2 asks for policies and protocols related to execution by lethal gas. Defendants
initially answered this interrogatory by stating that the Department of Corrections (“DOC”)
“does not use lethal gas and has no lethal gas protocol.” In a Supplemental Response (made after
the parties conferred), Defendants pointed out that the DOC last utilized lethal gas for an
execution in 1965. Plaintiff’s explanation as to why the protocols and procedures from 1965 are
pertinent are not persuasive, and the Court agrees with Defendants that it exceeds the needs of
this case for them to ascertain the protocols for a procedure last used in 1965. The Court further
notes that Defendants did not assert any privileges in their response to this interrogatory, so there
are no privilege issues to be considered.
2
At least, it appears from the text of Defendants’ answers that they provided the current written execution protocol.
The Court does not know what documents are identified by the specified Bates Numbers. Regardless, the current
written execution protocol should be provided to Plaintiff, and the Court’s rulings presume this has occurred.
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Interrogatory #3 asks for several categories of information related to the chemicals used during a
lethal injection. The Court concludes that much of the information sought is unnecessary given
the claim that remains in the case. Plaintiff’s claim does not depend on “the manner in which the
chemicals are prepared and administered” or “the process and reasoning behind the selection of
those particular chemicals and their respective doses.” Therefore, this information need not be
provided; and, given that the only privileges asserted relate to these matters, there is no need for
Defendants to prepare a privilege log. Plaintiff is entitled to information that identifies the
chemicals to be used, the doses, and “any risks, side-effects, or complications that could arise
from their use.” However, Defendants supplied information identifying the chemicals to be used
and the manner in which they will be administered. Defendants also stated that they lack the
medical training necessary to offer their own opinions about possible risks, side effects and
complications, and they have no documents addressing these issues. Thus, Plaintiff has received
answers to the portions of Interrogatory #3 to which he is entitled.
Interrogatory #4 is similar to Interrogatory #3 in that it asks Defendants to describe the
chemicals that are, or might be, used by DOC when using lethal gas as the means of execution.
Defendants stated that there are currently no such chemicals, and consistent with its ruling
regarding Interrogatory #2 the Court is not convinced that the chemicals used in 1965 (or before)
are relevant to this case. Nonetheless, Defendants’ Supplemental Response states that DOC used
cyanide gas, and Defendants are not required to speculate as to what chemicals would be used if
DOC were to start utilizing lethal gas as a means of execution. For these reasons Defendants’
response to Interrogatory #4 (including the Supplemental Response) provides all the information
to which Plaintiff is entitled and nothing has been withheld based on a privilege.
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Interrogatory #5 seeks “the process by which the current drug protocols were selected and
included in the Execution Procedures,” but the Scope Order already determined that this was not
allowed. (Doc. 105, p. 6-7.) Therefore, Defendants need not document their claims of privilege.
Interrogatory #6, which asks Defendants to identify all documents “related to the viability or
feasibility of lethal gas as an execution method in Missouri,” is addressed not only by
Defendants’ initial response and Supplemental Response, but also by an e-mail, (Doc. 177-2),
Defendants sent to the Court and to Plaintiff’s counsel on March 30, 2017, (“the March 30 email”). Initially, Defendants contended the request was overly broad in that it was not limited in
time – an objection the Court believes was appropriate. Defendants also asserted attorney/client,
work product, and deliberative process privileges. In the Supplemental Response, Defendants
contended they do not have any responsive documents. The March 30 e-mail describes a search
of the e-mails of all Defendants and of attorneys in the DOC’s general counsel’s office, using the
search terms “lethal gas” and “gas chamber.”
The search uncovered six documents, and
Defendants contend all are privileged as attorney/client communications or attorney work
product.3 The e-mail further identifies the six e-mails by date, author, recipient and subject
matter. The Court concludes that the e-mail constitutes an adequate privilege log for the six
documents referenced therein.
Interrogatory #7, Interrogatory #8, and Interrogatory #11 are similar to Interrogatory #1 in that
they asks for details about particular steps in the lethal injection protocol. Defendants’ responses
to Interrogatory #7, Interrogatory #8 and Interrogatory #11 are similar to those they provided for
Interrogatory #1; the Court’s ruling is the same as well.
3
Plaintiff references the March 30 e-mail in his Reply Suggestions, but presents no argument suggesting that the
documents identified therein are not privileged.
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Interrogatory #9 essentially asks Defendants to identify roles, responsibilities and functions of
the execution team members.
Notwithstanding Defendants’ various objections they have
supplied this information. Moreover, what Defendants has supplied is consistent with the Scope
Order, (see Doc. 105, p. 8), and the Court’s discussion in Part I of this Order. The only
privileged information withheld is the names of the execution team members, and as discussed in
the context of Interrogatory #1 the information supplied satisfies Defendants’ obligations under
Rule 26(b)(5).
Interrogatory #10 is similar to Interrogatory #9, but it asks for identification of members of the
execution team if execution is performed through the use of lethal gas. The fact that DOC does
not utilize lethal gas in executions answers this question.
The Court further notes that
Defendants did not assert any privileges in their response to this interrogatory, so there are no
privilege issues to be considered.
Interrogatory #12 is similar to Interrogatory #2 in that it asks about the process by which an
inmate would be executed through the use of lethal gas. Defendants’ answer is similar to that
which was provided for Interrogatory #2, and the Court’s ruling is the same as well.
Interrogatory #13 asks for detailed information about the execution team members’ training.
This issue has been addressed by the Scope Order, (Doc. 105, p. 8), and the discussion in Part I
of this Order.
Interrogatory #14 asks for all “contingency plans that exist for when any complications arise
during an execution by lethal injection.” Plaintiff has been supplied the DOC’s execution
protocol, so Plaintiff has been supplied all formalized contingency plans for anticipated
complications. Obviously, there might be unanticipated complications – but there is no way for
Defendants to describe contingency plans for events that are not anticipated. And, a request for
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all unwritten contingency plans is too vague. The Court concludes Defendants have answered
this interrogatory by providing the DOC’s execution protocol. The Court further notes that
Defendants did not assert any privileges in their response to this interrogatory (other than one
related to the identification of the execution team members), so there are no privilege issues to be
considered.
Interrogatory #15 asks for contingency plans for executions by lethal gas; Defendants respond
that DOC does not perform executions by lethal gas, which answers the interrogatory. The Court
further notes that Defendants did not assert any privileges in their response to this interrogatory,
so there are no privilege issues to be considered.
Interrogatory #16 follows up on the preceding two interrogatories by asking if there are no
contingency plans, why it is that none exist. Defendants’ response explains that there are no
contingency plans with respect to the use of lethal gas because DOC does not utilize lethal gas.
While there are no responses purporting to explain the lack of additional contingency plans in the
lethal injection protocol, the request is too vague and broad to be enforced. There are no
objections to this response (based on privilege or otherwise), and there is no need for the Court
make a further ruling.
Interrogatory #17 asks for information about “failed executions or executions that did not follow
the applicable protocol in effect at the time . . . including any and all information related to why
those executions failed and any steps or actions taken in response.” Defendants posed an
objection, noting (correctly) that this interrogatory exceeds the bounds set by the Scope Order.
Then, notwithstanding its objection, Defendants answered that there have been no such
executions. The Court deems this response sufficient, particularly in light of the restrictions set
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in the Scope Order. The Court further notes that Defendants did not assert any privileges in their
response to this interrogatory, so there are no privilege issues to be considered.
Interrogatory #18 would require Defendants to identify all persons responsible for monitoring
Plaintiff’s medical condition in the weeks before the execution, as well as information about
such persons. Defendants presented a series of objections, one of which is based on relevance.
The Court concludes this objection should be sustained. Plaintiff’s claim is that (1) use of lethal
injection – regardless of the chemicals utilized and regardless of the procedures utilized – will
cause a serious risk of severe pain and suffering and (2) execution with lethal gas will
significantly reduce this severe risk. Count II of Plaintiff’s Fourth Amended Complaint alleged
that Plaintiff’s rights were violated because Defendant did not have a plan for taking necessary
steps to assess Defendant before and during the execution, but the Court dismissed Count II.
Interrogatory #18 might have been relevant to Count II, but it is not relevant to the sole
remaining count.
Interrogatory #19 asks Defendants to identify all communications, records, or correspondence
involving Plaintiff’s medical condition, as well as his “physical or mental fitness for execution.”
Defendants present several objections, some of which are based on privilege and some of which
are not. The Court does not find all of them applicable.
Defendants objected because the interrogatory is not specific as to time and because
Plaintiff “is not currently under an active warrant of execution.” These objections are overruled.
The lack of a time frame does not make this request burdensome; Defendants can (and should)
provide Plaintiff with all information they have about his medical condition. The Court also
holds the fact that there is or is not currently a warrant of execution is no bar to providing the
information.
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Defendants also objected that Plaintiff’s mental condition is not an issue in this case, and
they are technically correct. Nonetheless, it seems far easier to simply provide Plaintiff with all
of the medical records about himself than try to parse the documents. After all, Plaintiff is
essentially requesting his own medical records.
Despite these objections, Defendants provided a response. The Court does not know
what was provided; as indicated, the preferred course would have been for Defendants to simply
provide Plaintiff with all of the medical information about him that they have (which, based on
Defendants’ response to RFP #15, may be what they did – and without objection). More
importantly, in addition to providing a response, Defendants asserted three privileges:
attorney/client, state secrets, and a concern that answering will identify members of the
execution team. The third privilege is understandable, but it is not clear how the first two
privileges apply and Defendants provide no explanation for them. It may be that the state secrets
privilege is intended to be co-extensive with the concern about identifying members of the
execution team, but if this is the case a document that identifies a person as a member of the
execution team could perhaps be redacted in a manner that allows Plaintiff to discover
information relating to his own medical condition. This discussion (particularly the Court’s
inability to ascertain why the privileges even apply) demonstrates the need for Defendants to
provide a privilege log that identifies all documents responsive to this interrogatory that have
been withheld.
Within ten days, Defendants are directed to respond to this interrogatory in full, and
prepare a privilege log for any documents they withhold based on a privilege. In identifying the
documents on the privilege log, Defendants should describe the document in terms of its date,
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the nature or type of document, the author(s) and recipient(s), a summary of its contents or
subject matter, and the reason why the document is privileged.
Interrogatory #20 requires Defendants to describe any research of alternative execution methods
“including execution by lethal injections, lethal gas, firing squad or electrocution, and the
feasibility of any of those methods.” Defendants initially objected for a variety of reasons,
including (1) the request exceeds the bounds set by the Scope Order and (2) attorney/client, work
product, and deliberative process privileges. In their Supplemental Response, Defendants stated
they had “not conducted any research and have had no communications concerning lethal gas as
a method of execution.”
The Supplemental Response provides a response to the permissible aspects of
Interrogatory #20. As presently phrased, this interrogatory is broader than permitted by the
Scope Order, which allowed Plaintiff to seek information related to lethal gas but noted that “it
is the only alternative method [of execution] he has alleged, so it is the only method for which
discovery is justified and the breadth of this category must be limited accordingly.” (Doc. 105,
p. 8.) Moreover, as the Court has stated previously, Count I does not allege that other methods
of lethal injection will alleviate the risk of severe pain and suffering; therefore, information about
“other ways” to conduct lethal injection are irrelevant. Given that Defendants fully responded to
the proper aspects of this interrogatory by stating that no research about lethal gas has occurred,
there is no need to consider the privileges.
RFP #1 is similar to Interrogatory #1 in that it essentially asks for the execution protocol. To
that extent, the Court’s ruling is the same as with Interrogatory #1: Plaintiff should receive the
execution protocol.
RFP #1 goes further, however, seeking documents “related to the
consideration and selection of the current protocols.” The Scope Order determined that this was
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not a permissible area of discovery. (Doc. 105, p. 6.) RFP #1 also seeks documents “related” to
the protocol; to the extent this seeks something beyond the protocol itself, it is vague in a myriad
of respects. Assuming that Defendants provided the execution protocol, (see page 6, n.2),
Plaintiff has received all to which he entitled and there is no need to consider the privileges
Defendants have asserted.
RFP #2 requests several categories of documents related to the documents used in lethal
injection. Most of the information sought was addressed in the Scope Order, (Doc. 105, p. 7), or
the Order issued following the March 15 conference. (Doc. 163, ¶ 2.) The only category that
was not previously addressed is Plaintiff’s request for information about “potential chemicals”
that could be used in a lethal injection. Given that Plaintiff’s claim does not depend on the
chemicals used, and he has not alleged that the use of alternative chemicals will reduce the risk
of pain and suffering, Defendants need not respond to this aspect of RFP #2. These rulings
obviate the need to consider Defendants’ asserted privileges.
RFP #3 asks for documents related to “the actual or potential chemicals” that might be used
during an execution by lethal gas. Defendants object to the extent that it seeks information about
the chemicals/gasses used in 1965 and before, and for the reasons discussed previously the Court
agrees that such information need not be produced. Defendants also pose an objection based on
deliberative process privilege, but it is not clear whether any responsive documents more current
than 1965 have been withheld. If, for example, the DOC has documents regarding the current
availability of chemicals that could be used for lethal injection, such documents might be
relevant and also might not be subject to the privilege. Assuming any such documents exist,
Defendants must produce the documents or prepare a privilege log for any documents that are
not produced based on a privilege. If no such documents exist, Defendants must certify as such.
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RFP #4 seeks documents “regarding the DOC’s selection, consideration or rejection of any
actual or potential drugs to be used during an execution by lethal injection or lethal gas,” then
sets forth a series of specific subjects Plaintiff considers encompassed by this request.
Defendants first raise a non-privilege based objection, contending that to the extent RFP #4 calls
for documents related to the selection of the drugs to be used during lethal injection, the request
exceeds the bounds set by the Scope Order. The Court agrees. (Doc. 105, p. 6.) Therefore, the
request must be limited to the subject of lethal gas, and when so limited RFP #4 is very similar to
RFP #3 – and in that respect the Court’s ruling is also the same.
RFP #5 asks for documents “regarding the actual or potential use of a paralytic drug during an
execution by lethal injection or lethal gas, including all documents related to the purpose the
paralytic serves, if any, during such an execution.” Defendants first state that the lethal injection
protocol does not use a paralytic drug, so there are no responsive documents related to the
current protocol.
The Scope Order precludes discovery on alternative methods of lethal
injection, so there is no need to consider whether any documents related to alternative methods
are also privileged. Finally, given that DOC has no protocol for the use of lethal gas, it stands to
reason that there are no responsive documents available.
RFP #6 is similar to Interrogatory #6 and the Court’s ruling is the same.
RFP #7 is similar to Interrogatory #20 and Interrogatory #12, and the Court’s ruling is the same.
RFP # 8 is similar to Interrogatory #9 and the Court’s ruling is the same.
RFP #9 is similar to Interrogatory #13 and the Court’s ruling is the same.
RFP #10 is similar to portions of various interrogatories; it asks for documents related to the
procedures “to prepare a prisoner for execution, including . . . steps taken to determine a
prisoner’s physical and/or mental fitness of execution.”
With the dismissal of Count II,
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information related to the manner in which Plaintiff is assessed before execution is not relevant.
Assuming Plaintiff has been provided the execution protocol, the relevant portions of this
question has been adequately answered and there is no need to further consider the privileges
asserted by Defendants.
RFP #11 asks for documents “regarding the monitoring of prisoners during an execution by
lethal injection or lethal gas.” Defendants have confirmed there is no protocol for execution by
lethal gas. With the dismissal of Count II – including its claim that the protocol does not require
adequate assessment of the prisoner during the execution – detailed information is not necessary.
The Court deems it sufficient for Plaintiff to have received the execution protocol.
RFP #12 is similar to Interrogatory #14 and the Court’s ruling is the same.
RFP #13 is similar to Interrogatory #17 and the Court’s ruling is the same.
RFP #14 and RFP #15 were answered without objections (based on privilege or otherwise) or
qualifications, so there is nothing for the Court to rule on.
RFP #16 asks for documents identifying those who treated or provided medical care to Plaintiff,
“including, but not limited to, resumes, administration records, employee files, and treatment
records.” Defendants supplied some documents identified only by their Bates Numbers, and
then objected because medical services are provided by an outside vendor and some documents
(e.g., resumes and employee files) are not in Defendants’ possession. Plaintiff provides no basis
for overruling this objection and there is no privilege for the Court to consider.
RFP #17 and RFP #18 ask for documents and records related to Plaintiff’s medical condition,
and Defendants object because there is no limitation as to time or scope. They are therefore
similar to Interrogatory #19. (They are also similar to RFP #15, which – in contrast to RFP #17
and RFP #18 – Defendants answered without objection.) The Court’s ruling on RFP #17 and
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RFP #18 is the same as for Interrogatory #19: Defendants should provide Plaintiff with all of his
medical records, and prepare a privilege log for any documents that are withheld based on a
privilege. RFP #18 also asks for all documents “regarding Plaintiff;” this aspect of RFP #18 is
discussed in Part III of this Order.
RFP #19 requires Defendants to supply “all documents referred to in, or used to answer or
respond to” the Fourth Amended Complaint, the interrogatories, or the motions. Defendants’
response refers to the documents that have been identified and supplied, and objects to supplying
anything beyond that because the request is “unduly burdensome, overbroad,” and calls for
documents that are subject to the attorney/client and work product privileges. Given RFP #19’s
breadth and the subjects addressed, the Court agrees and deems Defendants’ response to be
sufficient without further identification of documents in a privilege log.
RFP #20 asks for “[a]ll documents which refer or relate to, or support or refute, any affirmative
defense you have asserted or will assert.” Defendants’ response is similar to their response to
RFP #19. And, as with RFP #19, the Court deems Defendants’ response sufficient.
III. E-Mails
During the March 15 conference, the Court discussed Plaintiff’s request for a certification
from each Defendant that he undertook a good faith effort to procure responsive documents and
fully respond to interrogatories. Defendants’ counsel confirmed that such a certification could be
produced, and the Court stated “[i]f the defendants, then, could provide a certification to
[Plaintiff] that they undertook all good faith effort[s] to procure documents and answer all
interrogatories, then that seems to address this issue.” (Doc. 164, p. 22.) In the Order issued
after the conference, the Court directed that “[w]ithin five business days, each Defendant shall
provide a certification confirming that they undertook a good faith effort to procure documents
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responsive to Plaintiff’s discovery requests, and to provide answers to all interrogatories
propounded by Plaintiff.” (Doc. 163, ¶ 1.) Defendants complied with this directive. (Doc. 165.)
The Motion to Compel alleges Defendants’ certifications are insufficient because they do
not describe what Defendants did to search their e-mails. Defendants do not respond to this
contention; instead, they argue that they produced 76 e-mails and that this seemingly-low
number is unsurprising given the Scope Order’s limitations and the fact that lethal gas has not
been used since 1965. (Doc. 173, p. 25.)
Defendants sent the March 30 e-mail to the Court and Plaintiff’s counsel the day after
they responded to the Motion to Compel. In that e-mail, Defendants revealed that in December
2016 they searched all DOC employee e-mails for the term “Bucklew” in order to ascertain the
breadth of the documents responsive to RFP # 18, part of which asks for all documents
“regarding Plaintiff.” The search generated more than 38,000 documents. (Doc. 177-2, p. 3.) It
may well be that all of the relevant, non-privileged e-mails have been produced in response to
other discovery requests – but there is no way to know for certain. In their Reply Suggestions,
Plaintiff represents that this is the first time that a search yielding more than 38,000 results has
been mentioned, and they correctly contend that “[i]f Defendants had concerns about the number
of results, the proper course of action would have been to raise the issue with Plaintiff’s
counsel,” which would have allowed the parties to refine the search or adopt some other course
to insure that all relevant e-mails were produced.4
Given the circumstances, the Court directs the parties to confer to develop search terms to
further narrow the 38,000 e-mails identified in the December 2016 search. They should also
discuss whether the search should be limited temporally (although there are no e-mails from
4
As stated, the e-mail search was conducted in conjunction with RFP #18. The Court notes that Defendants’
response to RFP #18 generally objects that the “request is vague, overly broad, and unduly burdensome” but does
not mention that a search was conducted using “Bucklew” as the search term and that 38,000 e-mails were found.
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before 2008 because e-mails before that date are not available) or in terms of whose e-mails
should be searched.
Finally, the parties should discuss whether additional searches of DOC employees’ emails should be conducted in order to insure that all e-mails responsive to Plaintiff’s discovery
request have been produced.
It is possible that any searches combining “Bucklew” with
additional terms will produce all relevant documents – but this point is far from certain. For
instance, the March 30 e-mail also discusses a search of the Defendants’ e-mails for the terms
“lethal gas” and “gas chamber.”
The parties shall discuss whether this search should be
expanded to the e-mails of others at DOC, or whether other searches utilizing other terms should
be conducted.
IV. Conclusion
Plaintiff’s Motion to Compel is granted to the extent described in Part III, and the parties
shall confer within seven days of this Order and a new search of the e-mails should commence as
soon as possible thereafter. The Motion to Compel is also granted with respect to Interrogatory
#19 and RFP #3, RFP #4, RFP #17, and RFP #18 as described in Part II, and the responses called
for by the Court’s rulings should be completed within ten days. Plaintiff’s Motion is denied in
all other respects.
IT IS SO ORDERED.
/s/ Beth Phillips
BETH PHILLIPS, JUDGE
UNITED STATES DISTRICT COURT
DATE: April 11, 2017
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-2163
___________________________
Russell Bucklew
lllllllllllllllllllll Plaintiff - Appellant
v.
George A. Lombardi, et al.
lllllllllllllllllllll Defendants - Appellees
____________
Appeal from United States District Court
for the Western District of Missouri - Kansas City
____________
Submitted: September 9, 2014
Filed: March 6, 2015
____________
Before RILEY, Chief Judge, WOLLMAN, LOKEN, MURPHY, BYE, SMITH,
COLLOTON, GRUENDER, SHEPHERD, and KELLY, Circuit Judges, En Banc.
____________
LOKEN, Circuit Judge.
Russell Bucklew was convicted in state court of murder, kidnapping, and rape
and sentenced to death. After Missouri courts denied post-conviction relief, we
affirmed the district court’s denial of Bucklew’s petition for a federal writ of habeas
corpus. Bucklew v. Luebbers, 436 F.3d 1010, 1013-15 (8th Cir. 2006). This appeal
concerns his § 1983 challenge to Missouri’s lethal injection method of execution.
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I.
On April 9, 2014, the Supreme Court of Missouri issued a writ of execution,
setting Bucklew’s execution date as May 21, 2014. At that time, Bucklew was a
plaintiff in a pending § 1983 action that included a facial Eighth Amendment
challenge to Missouri’s method of execution. The district court tentatively dismissed
that action on May 2. Zink v. Lombardi, No. 12-04209 (W.D. Mo. May 2, 2014).
Bucklew filed this § 1983 action on May 9, primarily asserting that the method of
lethal injection by which Missouri plans to execute him would violate his Eighth
Amendment right to be free of cruel and unusual punishment because of the unique
risk that his serious medical condition, called cavernous hemangioma, will result in
excruciating pain. He also sought a preliminary injunction and a stay of execution.
On May 16, the district court entered a final order dismissing the complaint in
Zink. Plaintiffs including Bucklew appealed. On May 19, the district court entered
the Order being appealed in this action, denying Bucklew’s motion for a stay of
execution and an injunction and dismissing the Eighth Amendment claim, sua sponte.
Bucklew v. Lombardi, No. 14-8000 (W.D. Mo. May 19, 2014). Bucklew appealed,
raising Eighth Amendment and due process issues, and sought a stay of the May 21
execution.1 A divided panel of this court granted a stay. Bucklew v. Lombardi, 565
Appellees argue on appeal that Bucklew’s claims are barred by the claim and
issue preclusion effect of the district court’s final judgment in Zink. Bucklew, an
original plaintiff in the Zink action, filed this separate as-applied action on May 9,
2014, long after he joined the facial attack on Missouri’s execution protocol in Zink.
The district court entered its final judgment in Zink on May 16. Appellees argue that
Bucklew’s as-applied challenge is precluded by the final judgment in Zink because
it could have been raised in Zink. “The preclusive effect of a federal-court judgment
is determined by federal common law.” Taylor v. Sturgell, 553 U.S. 880, 891 (2008).
The general rule is that, as between actions pending at the same time, the first
judgment to become final is conclusive in the other action as res judicata, even if the
first judgment was not final when the second action was filed. See Chicago, R.I. &
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F. App’x 562 (8th Cir. 2014). The court en banc vacated the panel’s stay and denied
a stay of execution. Bucklew then applied to the Supreme Court for a stay of
execution. On May 21, the Supreme Court issued an amended order:
The application for stay of execution of sentence of death . . . is
treated as an application for stay pending appeal in the Eighth Circuit.
The application is granted pending the disposition of petitioner’s appeal.
We leave for further consideration in the lower courts whether an
evidentiary hearing is necessary.
After the Supreme Court granted a stay pending appeal, we granted initial en banc
review of Bucklew’s appeal and the appeal in Zink and scheduled both cases for
argument on September 9. After the oral arguments, we concluded that Bucklew’s
“as applied” Eighth Amendment claim warrants a separate opinion. His due process
claim is not materially different than the due process claim raised in Zink and will be
resolved in our opinion in that case.
P.R.R. v. Schendel, 270 U.S. 611, 616-17 (1926); Bell v. Sellevold, 713 F.2d 1396,
1404 (8th Cir. 1983); Restatement (Second) of Judgments § 14 cmt. a.
Appellees did not raise this issue in the district court, and the court did not
address it. As the court dismissed Bucklew’s complaint prior to answer, appellees
were not required to raise this affirmative defense before the court ruled. See Fed. R.
Civ. P. 12(b). It is by no means certain how the principle that applies claim
preclusion to claims that could have been filed in the earlier action -- part of the rule
against “claim splitting” -- would be applied in this unusual situation. See
Restatement (Second) of Judgments §§ 24-26, 33. Therefore, we decline to affirm the
district court on this alternative ground, which was neither presented to nor decided
by that court. Instead, we leave it to the district court to consider on remand “the
question whether and to what extent the bars of res judicata and collateral estoppel
apply,” as we did in Occhino v. United States, 686 F.2d 1302, 1312 (8th Cir. 1982).
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II.
In resolving an earlier appeal in Zink, we applied the Supreme Court’s
plurality opinion in Baze v. Rees, 553 U.S. 35, 50 (2008), and ruled that, to state an
Eighth Amendment method-of-execution claim, a plaintiff must plausibly allege a
substantial risk of severe pain, and “a feasible and more humane alternative method
of execution, or a purposeful design by the State to inflict unnecessary pain.” In re
Lombardi, 741 F.3d 888, 895-96 (8th Cir.) (en banc), reh’g denied, 741 F.3d 903,
cert. denied, 134 S. Ct. 1790 (2014). When the Zink plaintiffs subsequently declined
to amend their complaint to allege a more humane alternative, the district court
dismissed their facial Eighth Amendment challenge to Missouri’s lethal injection
protocol. That was the primary focus of plaintiffs’ Eighth Amendment appeal in
Zink.
In the Order being appealed, after denying Bucklew a preliminary injunction
and stay of execution, the district court dismissed the complaint. The court first
concluded that the expert affidavits Bucklew submitted in support of his motion for
stay of execution to show a substantial likelihood of needless pain “do not contain the
specificity necessary to prevail on an Eighth Amendment claim.” That was a merits
analysis appropriate in ruling on a motion for summary judgment, not an analysis of
whether the complaint plausibly pleaded an Eighth Amendment claim under Baze and
Lombardi. However, the court went on to conclude that the complaint must be
dismissed because Bucklew had not alleged that a “feasible and readily available
alternative” method of execution exists, and because plaintiffs in Zink, including
Bucklew, had declined to amend their complaint to allege such an alternative. That
was a properly focused Rule 12 analysis of the pleading.
On appeal, Bucklew argues, like appellants in Zink, that our decision in
Lombardi misinterpreted the Supreme Court’s decision in Baze. We will resolve that
issue in our separate en banc opinion in Zink. But Bucklew primarily argues that our
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rule in Lombardi does not apply to his separate § 1983 action, or alternatively that he
meets the requirements of that rule, because he has adequately alleged that Missouri’s
method of execution if applied to him would, because of his unique medical
condition, violate the Eighth Amendment standard -- a “substantial risk of serious
harm,” Baze, 553 U.S. at 50 (plurality opinion) -- and a readily available alternative
that would significantly reduce the risk.
Between our decision in Lombardi on January 24, 2014, and the order staying
Bucklew’s execution pending this appeal, the Supreme Court denied last minute stays
of execution to four Zink plaintiffs, most of whom argued that our decision in
Lombardi misconstrued Baze and therefore warranted stays of execution. The
Supreme Court did not grant Bucklew a stay of execution, but it did grant a stay
pending appeal, which had the same immediate effect. The Court’s decision to grant
a stay pending appeal reflected its determination that Bucklew had shown “a
significant possibility of success on the merits” of his appeal from the district court’s
dismissal of his complaint. Hill v. McDonough, 547 U.S. 573, 584 (2006).
Consideration of why the Court concluded that Bucklew’s challenge to Missouri’s
lethal injection method of execution might be so significantly different requires a
close look at the record on appeal.
III.
We first quote portions of our prior panel opinion describing the allegations in
Bucklew's complaint and the opinions of his medical experts regarding the medical
condition on which his as-applied challenge is based:
[W]e set forth verbatim portions of the allegations from Bucklew’s
complaint regarding his medical condition:
26.
Mr. Bucklew has suffered from the symptoms of congenital
cavernous hemangioma his entire life, including frequent
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27.
28.
29.
30.
31.
32.
hemorrhaging through his facial orifices, disturbances to his
vision and hearing, pain and pressure in his head, constant
headaches, dizziness, and episodes of loss of consciousness. He
frequently bleeds through his mouth, nose and ears, and has
sometimes bled even through his eyes.
The hemangiomas—which are clumps of weak, malformed
vessels—fill Mr. Bucklew’s face, head, neck and throat,
displacing healthy tissue and stealing blood flow from normal
adjacent tissues, depriving those tissues of necessary oxygen.
The hemangiomas are vascular tumors, and it is in the nature of
such tumors to continuously expand. Although the tumors are
classified as benign tumors, their growth is locally invasive and
destructive.
Over the years, doctors have attempted treatment on many
occasions, only to conclude that the available treatments—
chemotherapy, sclerotherapy, radiation therapy and surgery—
hold no appreciable chance of success.
In 1991, a specialist who examined Mr. Bucklew and treated his
hemangioma for many years noted that any attempt to remove the
vascular tumor “would require extensive surgery which would be
mutilating and very risky as far as blood loss.”
Over the years, attempts at sclerotherapy, chemotherapy and
radiation therapy all failed. An April 2012 report notes the
minimal success of prior therapies and states: “The large size
makes the hemangioma not amenable to sclerotherapy.” The
report also notes that surgery would result in “large concomitant
disability and disfiguration.”
Doctors have described the hemangiomas as “very massive,”
“extensive” and a “large complex right facial mass.” In March
2003, a doctor who examined Mr. Bucklew wanted him examined
immediately by a specialist because of progression of the vascular
tumor, which the doctor believed “could be
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.