Petition for Writ of Certiorari — Anne L. Precythe, Petitioner v. Ernest Johnson

Supreme Court briefJan 2, 2019

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No. ________

________________________________________

IN THE

Supreme Court of the United States

________________________

ANNE L. PRECYTHE,

Director, Missouri Department of Corrections,

Petitioner,

ERNEST JOHNSON,

Respondent.

________________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals for the Eighth

Circuit

________________________________________

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

________________________________________

JOSHUA D. HAWLEY

Missouri Attorney General

D. JOHN SAUER

Solicitor General

Counsel of Record

GREGORY GOODWIN

Assistant Attorney General

P. O. Box 899

Jefferson City, MO 65102

john.sauer@ago.mo.gov

(573) 751-8870

Attorneys for Petitioner

TABLE OF CONTENTS

The United States Court

of Appeals for the Eighth

Circuit’s August 27, 2018

Opinion ..................................................................... A1

The United States District

Court for the Western District

of Missouri’s October 27, 2015

Opinion .................................................................... A14

The United States Court

of Appeals for the Eighth

Circuit’s October 30, 2015

Opinion .................................................................... A26

The United States Supreme

Court’s November 3, 2015 Order............................ A32

The United States Court

of Appeals for the Eighth

Circuit’s March 21, 2016

Opinion .................................................................... A33

The United States District Court

For the Western District of

Missouri’s May 1, 2017 Order ................................ A37

The United States Court

of Appeals for the Eighth Circuit’s

October 2, 2018 Order Denying

Rehearing En Banc ................................................. A54

Affidavit of Dr. Joel Zivot ....................................... A55

Aii

Second Amended Complaint of

Ernest Johnson ....................................................... A63

Amended Affidavit of Dr. Joel Zivot....................... A83

United States Court of Appeals

For the Eighth Circuit

_________________________________

No. 17-2222

_________________________________

Ernest Lee Johnson,

Plaintiff - Appellant,

Anne L. Precythe; Alana Boyles; Stanley Payne, *

Defendants - Appellees.

_______________

Appeal from United States District Court

for the Western District of Missouri - Jefferson City

_______________

Submitted: May 16, 2018

Filed: August 27, 2018

_______________

Before

SMITH,

Chief

Judge,

COLLOTON, Circuit Judges.

_______________

BEAM

and

COLLOTON, Circuit Judge.

Appellees Precythe, Boyles, and Payne are automatically

substituted for their predecessors under Federal Rule of

Appellate Procedure 43(c)(2).

Ernest Johnson, a prisoner sentenced to death in

Missouri, appeals the dismissal of his action

challenging the constitutionality of the State’s

method of execution as applied to him. The district

court dismissed Johnson’s second amended

complaint for [p. 2] failure to state a claim. We

conclude that Johnson pleaded a plausible claim for

relief under the Eighth Amendment, so we reverse

and remand for further proceedings.

Johnson was convicted of three counts of firstdegree murder in Missouri state court and sentenced

to death. See State v. Johnson, 244 S.W.3d 144, 149

(Mo. 2008). He filed this action against Missouri

officials in October 2015, approximately two weeks

before a scheduled execution on November 3, 2015.

Johnson alleged that the State's method of

execution—lethal injection with pentobarbital—

violates the Eighth Amendment's proscription on

cruel and unusual punishment, because there is “a

substantial and unjustifiable risk” that a

pentobarbital injection will “trigger severe and

uncontrollable seizures and convulsions due to his

brain defect and unique medical condition.”

The district court granted the State’s motion to

dismiss the complaint for failure to state a claim. See

Fed. R. Civ. P. 12(b)(6). Applying the Eighth

Amendment standard from Glossip v. Gross, 135 S.

Ct. 2726, 2737 (2015), the court concluded that

Johnson had not identified a feasible, readily

implementable alternative method of execution that

would significantly reduce a substantial risk of

severe pain. The court dismissed the complaint

without prejudice, stating that Johnson was free to

amend his complaint to remedy its deficiencies. Due

to Johnson’s imminent execution date, however, the

court stated that it was certifying the dismissal order

for interlocutory appeal under Federal Rule of Civil

Procedure 54(b).

Johnson moved this court to stay his execution

pending appeal. This court denied a stay after

concluding that Johnson failed to demonstrate a

significant possibility of success on either element of

his Eighth Amendment claim. Johnson v. Lombardi,

809 F.3d 388 (8th Cir. 2015) (per curiam). The

Supreme Court, however, granted a stay pending

appeal in the Eighth Circuit. Johnson v. Lombardi,

136 S. Ct. [p. 3] 443 (2015) (per curiam). The Court

observed that a supporting affidavit by a medical

expert stated that, “[a]s a result of Mr. Johnson's

brain tumor, brain defect, and brain scar, a

substantial risk of serious harm will occur during his

execution as a result of a violent seizure that may be

induced by [the] Pentobarbital injection.” Id. at 443

(alterations in original).

As we observed in Bucklew v. Lombardi, 783 F.3d

1120 (8th Cir. 2015) (en banc), “[t]he Court’s decision

to grant a stay pending appeal reflected its

determination that [the movant] had shown ‘a

significant possibility of success on the merits’ of his

appeal from the district court’s dismissal of his

complaint.” Id. at 1123-24 (quoting Hill v.

McDonough, 547 U.S. 573, 584 (2006)). In this case,

however, we subsequently dismissed Johnson’s

appeal for lack of jurisdiction, and did not consider

the merits of his complaint at that time. Johnson v.

Lombardi, 815 F.3d 451 (8th Cir. 2016). We noted

that the State had not established a new execution

date, and that Johnson was thus “free to move for

leave to amend his complaint without the pressure of

a scheduled execution.” Id. at 452.

Back in the district court, Johnson amended his

complaint, but the court again dismissed it without

prejudice. This time, the court reasoned that

Johnson’s complaint failed to plead facts that

established the likelihood that pentobarbital would

cause him to have a mid-execution seizure. The court

allowed that it would give Johnson one more

opportunity to file an adequately pleaded complaint.

Johnson then filed a second amended complaint.

As an exhibit, Johnson attached an affidavit from

anesthesiologist Dr. Joel Zivot, who opined about the

likelihood that Johnson would suffer a painful

seizure if executed by means of pentobarbital.

Johnson also attached an Oklahoma study

concluding that nitrogeninduced hypoxia, an

alternative to lethal injection, would be a humane

method of execution.

[p. 4] The district court granted the State’s

motion to dismiss the latest complaint. The court

reasoned that Johnson failed to plead adequately two

elements of an Eighth Amendment claim—namely,

that pentobarbital was sure or very likely to cause

him to suffer severe pain, and that nitrogen-induced

hypoxia was a feasible and readily implemented

alternative method of execution that would

significantly reduce that risk. Johnson appeals, and

we review the district court’s decision de novo. Zink

v. Lombardi, 783 F.3d 1089, 1098 (8th Cir. 2015) (en

banc) (per curiam).

II.

To survive a motion to dismiss, “a complaint must

contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A claim is plausible on its face where “the plaintiff

pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable

for the misconduct alleged,” id., and “raise[s] a right

to relief above the speculative level.” Twombly, 550

U.S. at 555. A pleading must offer more than “‘labels

and conclusions’ or ‘a formulaic recitation of the

elements of a cause of action’” to state a plausible

claim for relief. Iqbal, 556 U.S. at 678 (quoting

Twombly, 550 U.S. at 555).

At the same time, however, the rules of procedure

continue to allow notice pleading through “a short

and plain statement of the claim showing that the

pleader is entitled to relief.” Erickson v. Pardus, 551

U.S. 89, 93 (2007) (per curiam) (quoting Fed. R. Civ.

P. 8(a)(2)). “Specific facts are not necessary; the

statement need only ‘give the defendant fair notice of

what the . . . claim is and the grounds upon which it

rests.’” Id. (alteration in original) (quoting Twombly,

550 U.S. at 555). We assume in our analysis that the

factual allegations in the complaint are true.

Twombly, 550 U.S. at 556.

[p. 5] To prove a claim challenging a method of

execution under the Eighth Amendment, a prisoner

must first “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

(quoting Baze v. Rees, 553 U.S. 35, 50 (2008)

(plurality opinion)). The risk must be “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.’” Id. (quoting Baze, 553 U.S.

at 50). Second, the prisoner must “identify an

alternative that is ‘feasible, readily implemented,

and in fact significantly reduce[s] a substantial risk

of severe pain.’” Id. (alteration in original) (quoting

Baze, 553 U.S. at 52). A plaintiff cannot satisfy this

element “merely by showing a slightly or marginally

safer alternative.” Id. (quoting Baze, 553 U.S. at 51).

On the first element, Johnson alleged that he was

diagnosed

with

“atypical

parasagittal

meningioma brain tumor.” A portion of the tumor

was removed during a craniotomy procedure in

August 2008, but another part remains in Johnson’s

brain. The surgery also resulted in “scarring tissue”

in Johnson's brain and a “significant brain defect.”

Johnson pleaded that “[t]he brain defect and the

scarring tissue that resulted from the craniotomy

procedure were not known until an MRI procedure

was conducted in April 2011.” As a result of his

“brain defect, scarring, and tumor,” Johnson

allegedly has a seizure disorder and has suffered

seizures.

After detailing Missouri’s lethal injection

protocol, Johnson asserted that “there is a

substantial and unjustifiable risk that the lethal

injection

drugs

will

trigger

violent

and

uncontrollable seizures that are extremely painful

and will lead to an ineffective and excruciating

execution.” Relying on the attached affidavit of Dr.

Zivot, the complaint asserts that “a substantial risk

of serious harm will occur during his execution as a

result of a violent seizure that is induced by

pentobarbital.”

[p. 6] Dr. Zivot’s supporting affidavit states as

follows: “As a result of Mr. Johnson’s brain tumor,

brain defect, and brain scar, a substantial risk of

serious harm will occur during his execution as a

result of a violent seizure that is induced by

Pentobarbital injection. Generalized seizures, such

as the one that would occur in Mr. Johnson, are

severely painful.” This is essentially the same

allegation that the Supreme Court cited in support of

its decision in 2015 to stay Johnson’s execution

pending appeal. 136 S. Ct. at 443. The affidavit also

explains that Methohexital, “a Barbiturate and close

cousin of Pentobarbital,” is known to induce seizures

in persons without pre-existing seizure disorders,

and avers that the introduction of barbiturates into

the body of a person with a pre-existing seizure

disorder is more likely to produce seizures.

We think these allegations are sufficient to meet

the first element of an Eighth Amendment claim at

the pleading stage. Dr. Zivot, as a medical expert,

predicts “a violent seizure that is induced by

Pentobarbital injection,” opines that a seizure “would

occur” during Johnson’s execution, and states that

such seizures are “severely painful.” To be sure, “the

tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable

to legal conclusions.” Iqbal, 556 U.S. at 678. But

Johnson’s complaint and Zivot’s attached affidavit

include factual allegations that a seizure will occur

when the State injects pentobarbital and that such a

seizure causes severe pain. These allegations are not

legal conclusions but statements of fact, and more

detailed factual allegations are not required under

Rule 12. Insofar as Zivot reasoned by analogy from

the effects of a “close cousin” in the barbiturate

family, the reliability of his conclusion is a matter to

be resolved after the presentation of evidence. For

purposes of notice pleading, Johnson has included a

plausible allegation that the State’s method of

execution will cause severe pain. See Glossip, 135 S.

Ct. at 2737. Whether Johnson can prove the claim

through Dr. Zivot’s testimony or other evidence is a

different matter to be addressed at a later stage of

the proceedings.

[p. 7] To prove the second element of an Eighth

Amendment claim, Johnson must show an

alternative method of execution “that is ‘feasible,

readily implemented, and in fact significantly

reduce[s] a substantial risk of severe pain.’” Id.

(alteration in original) (quoting Baze, 553 U.S. at 52).

Johnson alleged that execution by lethal gas—

specifically, “nitrogen-induced hypoxia”—is such an

alternative.

Johnson pleaded at greater length as follows: (1)

“execution by lethal gas is already authorized by

Missouri statute,” see Mo. Rev. Stat. § 546.720.1, (2)

“the tools necessary to perform nitrogen-induced

hypoxia are easily acquired in the open market,” (3)

nitrogen gas “is readily available through multiple

sources in the United States” and “can be obtained

without the need for a license,” (4) nitrogen gas can

be administered by “the use of a hood, a mask or

some other type of medically enclosed device to be

placed over the mouth or head of the inmate,” and (5)

“the use of a nitrogen gas method of execution would

not require a gas chamber or the construction of [a]

particular type of facility” and “could be

administered in the same room or facility now

utilized by the Department of Corrections for lethal

injection.” Johnson further alleged that the use of

lethal gas would “significantly reduce the substantial

and unjustifiable risk of severe pain” resulting from

a pentobarbital injection, because “the use of lethal

gas would not trigger the uncontrollable seizures and

convulsions.” He attached to his complaint an

Oklahoma study that found nitrogen-induced

hypoxia to be “a humane method to carry out a death

sentence.”

In the recent case of Bucklew v. Precythe, 883

F.3d 1087 (8th Cir.), cert. granted, 138 S. Ct. 1706

(2018), the State did not dispute for purposes of that

litigation that nitrogen-induced hypoxia is a feasible

and readily implemented alternative method of

execution. Id. at 1094; see Bucklew v. Lombardi, No.

14-8000-CV-W-BP, slip op. at 9 (W.D. Mo. June 15,

2017). But in this case, the State does contend that

Johnson failed to plead that nitrogen-induced

hypoxia is a readily implemented method of

execution. According to the State, Johnson’s

complaint does not include required factual

information “that explains how Missouri could take

[p. 8] nitrogen gas from a tank and administer it to

an inmate in a way that produces a rapid and

painless death.” As summarized above, however,

Johnson alleged that nitrogen gas is readily

available on the open market, could be introduced

through a “medically enclosed device to be placed

over the mouth or head of the inmate,” and would

not require construction of a new facility. Under the

notice pleading regime of the federal rules, this is

insufficient. Johnson need not set forth a detailed

technical protocol for the administration of nitrogen

gas to state a claim.

A10

The district court concluded that the Oklahoma

report attached to Johnson’s complaint “actually

indicates nitrogen induced hypoxia is not feasible or

capable of being readily implemented for use in state

executions,” but we respectfully disagree. The report

does state that “[f]urther study will be necessary to

determine the best delivery system” for nitrogen gas.

The report also raises the possibility that a gas mask

delivery system could be less efficient than a gas bag

delivery system. But the report’s ultimate conclusion

is that execution by nitrogen-induced hypoxia would

be “simple to administer.” That researchers have yet

to decide which is the best among several feasible

methods of implementation does not definitively

refute Johnson's allegation that Missouri could

feasibly implement this alternative without undue

delay.

The district court also thought it fatal to

Johnson's claim that he did not plead facts

“indicating Missouri is willing to perform this type of

execution, which suggests it may not be feasible.” We

cannot accept, however, that a State’s unwillingness

to employ a method that would significantly reduce a

substantial risk of severe pain makes the method

infeasible. Under the Glossip/Baze standard, a State

may be obliged under the Constitution to implement

an alternative method of execution. See Baze, 553

U.S. at 52. Whether Missouri is “willing” to

implement an alternative method voluntarily does

not determine whether the alternative is feasible.

The State also contends that Johnson did not

adequately allege that nitrogen gas would

significantly reduce a substantial risk of severe pain.

The State suggests that [p. 9] McGehee v.

Hutchinson, 854 F.3d 488 (8th Cir. 2017) (en banc)

A11

(per curiam), forecloses Johnson’s claim. McGehee,

however, arose in a different procedural posture.

Several Arkansas prisoners sought a stay of

execution after an evidentiary proceeding on the

ground that Arkansas’s method of execution on its

face violated the Eighth Amendment. Id. at 490-91.

We concluded that the evidence was insufficient to

justify a stay, because nitrogen hypoxia had “never

been used to carry out an execution” and “[w]ith no

track record of successful use,” it was “not likely to

emerge as more than a ‘slightly or marginally safer

alternative’” to the State’s current method in the

ordinary case. Id. at 493 (quoting Glossip, 135 S. Ct.

at 2737).

Johnson is not bound by the pleadings or the

evidentiary record in McGehee. He has pleaded an

as-applied claim based on his medical condition, not

a facial challenge to Missouri’s ordinary method. He

claims that nitrogen hypoxia would ameliorate the

risk of severe pain allegedly caused by pentobarbital,

because “the use of lethal gas would not trigger the

uncontrollable seizures and convulsions.” The

pleading is sufficient to state a claim that the

alternative method would significantly reduce a

substantial risk of severe pain for Johnson in his

particular circumstances. Again, whether Johnson

can prove that claim is a different matter that will

arise at a later stage of the proceedings.

III.

The State’s last argument for affirmance is that

Johnson’s complaint is barred by the statute of

limitations. A statute of limitations is an affirmative

defense that the defendant must plead and prove.

But “[a] defendant does not render a complaint

A12

defective by pleading an affirmative defense,” so the

defense ordinarily must be apparent on the face of

the complaint to justify dismissal for failure to state

a claim. Jessie v. Potter, 516 F.3d 709, 713 n.2 (8th

Cir. 2008). The district court rejected the State’s

position on the ground that the face of Johnson’s

complaint did not establish that his claim was barred

by the statute of limitations.

[p. 10] In a § 1983 action like this one, the

governing statute of limitations “is that which the

State provides for personal-injury torts.” Wallace v.

Kato, 549 U.S. 384, 387 (2007). In Missouri, the

period is five years. Mo. Rev. Stat. § 516.120(4).

Although state law dictates the length of the

limitations period, we look to federal common law to

determine when a cause of action under § 1983

accrues. Wallace, 549 U.S. at 388. The standard rule

is that accrual occurs “when the plaintiff has a

complete and present cause of action, . . . that is,

when the plaintiff can file suit and obtain relief.” Id.

(internal quotation marks omitted) (quoting Bay

Area Laundry & Dry Cleaning Pension Tr. Fund v.

Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997)). “[A]

plaintiff’s cause of action accrues when he discovers,

or with due diligence should have discovered, the

injury that is the basis of the litigation.” Union Pac.

R.R. Co. v. Beckham, 138 F.3d 325, 330 (8th Cir.

1998); see also Cooey v. Strickland, 479 F.3d 412, 416

(6th Cir. 2007) (applying the common law “discovery

rule” to determine when a § 1983 method-ofexecution cause of action accrued).

Johnson claims that his unique medical condition

puts him at a substantial risk of suffering severe

pain if he is executed by means of pentobarbital.

Johnson’s cause of action could not have accrued

A13

until he discovered, or with due diligence should

have discovered, that he suffers from the brain

defects that make him vulnerable to seizures. His

second amended complaint alleges that “the brain

defect and the scarring tissue that resulted from the

craniotomy procedure were not known until an MRI

procedure was conducted in April 2011.” The

complaint was filed within five years of April 2011,

so it would be timely if that is the accrual date.

The State argues that Johnson could have

discovered his condition in 2008 after he underwent

brain surgery. The State posits that “[t]he presence

of scar tissue after a surgery is obvious and a natural

and probable consequence of any surgery.” The

condition of which Johnson complains, however, is

not only scar tissue. He alleges a seizure disorder

that is caused by a confluence of factors in his brain.

Giving Johnson all reasonable inferences at this

stage in the litigation, it is not clear from [p. 11]

Johnson’s pleadings that he could have discovered

this condition through the exercise of reasonable

diligence before his MRI procedure in April 2011.

Therefore, Johnson’s complaint is not subject to

dismissal under Rule 12(b)(6) based on the statute of

limitations.

* * *

For the foregoing reasons, we reverse the district

court’s judgment dismissing Johnson’s second

amended complaint and remand for further

proceedings.

______________________________

A14

IN THE UNITED STATES DISTRICT COURT

FOR THE

WESTERN DISTRICT OF MISSOURI

CENTRAL DIVISION

ERNEST L. JOHNSON, )

)

Plaintiff,

)

GEORGE A. LOMBARDI,)

et al.,

)

Defendants.

)

No. 2:15-CV-4237-DGK

ORDER DENYING A PRELIMINARY

INJUNCTION AND

DISMISSING THE COMPLAINT

Plaintiff Ernest L. Johnson (“Johnson”) faces

imminent execution by lethal injection. In this civil

action, he challenges the constitutionality of the

State of Missouri’s proposed execution protocol as it

applies to him. He alleges that, in light of his brain

tumor and its resulting impairments, he will

experience violent, uncontrollable seizures if the

State executes him with the drug pentobarbital, as it

intends to do.

Now before the Court are two motions. One is

Johnson’s motion for a temporary restraining order

and a preliminary injunction (Doc. 5). The other is

Defendants’ motion to dismiss the Complaint for

failing to state a claim (Doc. 7). For the reasons

below, the motion for a restraining order and

injunction is DENIED, and the motion to dismiss is

A15

GRANTED. 1

Background

Taking the factual allegations in the complaint as

true and crediting Johnson with all reasonable

inferences, the Court views the relevant facts as

follows. See Zink v. Lombardi, 783 [p. 2] F.3d 1089,

1093 (8th Cir. 2015) (en banc) (Rule 12(b)(6)

standard);

United

Healthcare

Ins.

Co.

AdvancePCS, 316 F.3d 737, 744 (8th Cir. 2002) (Rule

65(a) standard).

Three times, a Missouri state court jury has

sentenced Johnson to death for murdering three gas

station employees in 1994. State v. Johnson, 244

S.W.3d 144, 149–50 (Mo. 2008). The Supreme Court

of Missouri has set Johnson’s execution for

November 3, 2015.

The State plans to accomplish the lethal injection

by using pentobarbital. A barbiturate, pentobarbital

causes death by depressing the central nervous

system, including portions of the brain. During the

execution, medical personnel will monitor the

prisoner from an adjoining room, but no medical

personnel will be present next to Johnson as the

pentobarbital enters his bloodstream. The State has

no procedures dictating what happens if the

pentobarbital fails to kill Johnson.

Johnson suffers from an atypical parasagittal

meningioma brain tumor, which is a slow-growing

Because all of Johnson’s allegations, taken as true, do not

entitle him to a temporary restraining order or preliminary

injunction under Rule 65, the Court denies his request for an

evidentiary hearing. See United Healthcare Ins. Co. v.

AdvancePCS, 316 F.3d 737, 744 (8th Cir. 2002).

A16

tumor that develops on the meninges, the tissue

surrounding the brain and spine. In August 2008, he

underwent craniotomy surgery and had part of the

tumor removed. The surgery significantly affected

Johnson’s brain; it scarred some tissue and destroyed

other tissue in the area of the brain responsible for

the movement and sensation of the legs. The tumor,

brain scars, and lost parts of the brain collectively

disrupt his electrical brain activity, causing violent

and uncontrollable seizures. After Johnson began

suffering from seizures, he started taking antiseizure medications.

Using pentobarbital risks triggering violent and

uncontrollable seizures in Johnson. Thus, an

execution carried out with pentobarbital might cause

him to seize and experience a significant muscle pain

alternatively described as “severe,” “extreme[],” and

“excruciating.” Compl. ¶¶ 21, 33 (Doc. 1). The seizure

may be self-limiting, or it could last for a prolonged

[p. 3] period of time. Because medical professionals

will not be in the execution chamber when the

pentobarbital is administered, if he experiences a

seizure and severe pain, no one will be able to

quickly soothe it.

Missouri law also permits execution by lethal gas.

Mo. Rev. Stat. § 546.720.1. Johnson alleges that this

method of execution “would significantly reduce the

substantial and unjustifiable risk of severe pain” to

him. Compl. ¶ 56.

On October 22, 2015—less than two weeks before

the scheduled execution—Johnson commenced this

action against Defendants George A. Lombardi,

David Dormire, and Troy Steele, who are all

employees of the Missouri Department of

A17

Corrections. The sole count in Johnson’s complaint

charges that using a pentobarbital-based lethal

injection on him will constitute cruel and unusual

punishment, which is prohibited by the Eighth

Amendment, as applied to the State of Missouri by

the Fourteenth Amendment and enforceable through

42 U.S.C. § 1983. He seeks an injunction against the

pending execution.

Discussion

The Court considers two motions in turn:

Johnson’s motion for a preliminary injunction, and

Defendants’ motion to dismiss the Complaint for

failing to state a claim.

I. Because Johnson does not establish the

likelihood of success on the merits, the

Court denies his motion for a preliminary

injunction.

Johnson moves for a preliminary injunction that

prohibits Defendants from executing him 2with

pentobarbital. See Fed. R. Civ. P. 65(a). A

preliminary injunction serves “to preserve the status

quo until, upon final hearing, a court may grant full

effective relief.” Sanborn Mfg. Co. v. Campbell

Hausfeld/Scott Fetzer Co., 997 F.2d 484, 490 (8th

Cir. 1993). Accordingly, in a ruling [p. 4] on a motion

2 Johnson also moves for a temporary restraining order on the

same grounds. A temporary restraining order is issued without

notice to the opposing parties. Fed. R. Civ. P. 65(b)(1). Because

Defendants have responded to the motion, the request for a

temporary restraining order will be considered as a request for a

preliminary injunction.

A18

for a preliminary injunction, a court may consider

“evidence that is less complete than in a trial on the

merits.” Univ. of Tex. v. Camenisch, 451 U.S. 390,

395 (1981).

In deciding whether to grant a preliminary

injunction, the Court balances: (1) the likelihood that

the moving party will prevail on the merits; (2) the

threat of irreparable harm to the movant; (3) the

balance between this harm and any injury that

granting the injunction will inflict on the non-moving

party; and (4) the public interest. Glossip v. Gross,

135 S. Ct. 2726, 2736 (2015). These factors must be

“balanced to determine whether they tilt toward or

away” from granting the injunction. W. Publ’g Co. v.

Mead Data Cent., Inc., 799 F.2d 1219, 1222 (8th Cir.

1986). An injunction is an extraordinary remedy and

Johnson bears the burden of establishing the need

for such relief. Lankford v. Sherman, 451 F.3d 496,

503 (8th Cir. 2006).

Because Johnson has failed to

identify

feasible,

readily

implementable

execution

procedure, the Court finds he will

not likely succeed on the merits.

The Court first considers whether Johnson will

likely succeed on the merits of his Eighth

Amendment claim. The Eighth Amendment prohibits

the State from inflicting “cruel and unusual

punishments.” U.S. Const. amend. VIII. To challenge

an execution protocol as “cruel and unusual,” a

prisoner must establish two elements: (1) that the

proposed method is “sure or very likely” to cause him

serious, needless pain, and (2) a better, available

A19

method of execution. Glossip, 135 S. Ct. at 2737. 3 A

prisoner may challenge an execution protocol as

applied to just him. Bucklew v. Lombardi, 783 F.3d

1120, 1127 (8th Cir. 2015) (en banc).

Assuming for the sake of argument that Johnson

can establish the first element—that a pentobarbitalbased lethal injection cocktail presents a substantial

risk of serious harm—he is not likely to prove that

there is a better, available method of execution. “A

condemned prisoner cannot successfully challenge a

State’s method of execution merely by showing a

slightly or [p. 5] marginally safer alternative.” Baze

v. Rees, 553 U.S. 35, 51 (2008). Rather, he must

prove: [a] an alternative method of execution “[b]

that is feasible, [c] readily implemented, and [d] in

fact significantly reduces a substantial risk of severe

pain.” Glossip, 135 S. Ct. at 2737 (alteration

removed). Johnson has identified an alternative

method of execution: execution by lethal gas.

However, putting aside his bare assertion that

“lethal gas is a feasible and available alternative

method under Missouri law,” Compl. ¶ 65, Johnson

never explains how execution by lethal gas is feasible

or could be readily implemented.

Feasibility asks whether the alternative method

of execution is “capable of being done, executed, or

effected.”

Feasible,

Webster’s

Third

New

International Dictionary (2002). Yet Johnson does

not indicate that the State has a working gas

In lieu of the second element, a prisoner may allege “a

purposeful design by the State to inflict unnecessary pain.” In

re Lombardi, 741 F.3d 888, 896 (8th Cir. 2014) (en banc).

Johnson has not advanced this theory.

A20

chamber or all the supplies necessary to operate such

a chamber. Readiness of implementation asks

whether the alternative method of execution can be

used promptly, efficiently, or without delay. Readily,

Webster’s Third New International Dictionary, supra.

Yet Johnson does not assert that the State can put a

gas chamber into operation in a prompt fashion.

Simply because Missouri law authorizes the use of

lethal gas for executions does not mean that the

State is anywhere near prepared to actually use

lethal gas for executions. See Mo. Rev. Stat. §

546.720.1. Similarly, the Missouri Attorney

General’s public comment—recounted in Johnson’s

suggestions in opposition—that the gas chamber is

an “option” does not tell the Court anything about

the feasibility or readiness of that “option.”

Perhaps Defendants can easily establish a gas

chamber. Just as likely, their ability to execute with

lethal gas may depend on several adverse variables

outside of their control. In any event, the Court

cannot conclude at this time that Johnson is likely to

prove feasibility and [p. 6] readiness by a

preponderance of the evidence. The Court thus finds

that Johnson is not likely to prevail on the merits of

his claim. See Glossip, 135 S. Ct. at 2737; cf.

Bucklew, 783 F.3d at 1127 (reversing a district

court’s dismissal of an Eighth Amendment execution

complaint, because the defendants had offered to

tweak their lethal injection protocol to accommodate

the plaintiff’s disability, thereby conceding that

alternative measures were feasible and readily

implemented). This factor strongly weighs against a

preliminary injunction.

A21

B. Johnson will suffer irreparable harm

if he is executed unconstitutionally.

Second, Johnson must establish that he will

suffer irreparable harm if the State executes him

with pentobarbital. Irreparable harm is present

when legal remedies are inadequate. Beacon

Theatres, Inc. v. Westover, 359 U.S. 500, 506–07

(1959). A preliminary injunction may issue for future

occurrences of irreparable harm. United States v.

W.T. Grant Co., 345 U.S. 629, 633 (1953).

Once the execution process begins, Johnson

cannot pursue a remedy for any harm caused by the

pentobarbital. If he is ultimately correct that the use

of pentobarbital will cause him excruciating pain,

then he will suffer irreparable harm if the Court

denies a preliminary injunction and permits

Defendants to proceed with Johnson’s execution.

This factor slightly favors a preliminary injunction.

C. The equities do not favor granting an

injunction to Johnson.

The third injunctive consideration is the balance

between the irreparable harm to Johnson and the

injury to Defendants. On the one hand, if no

injunction issues, Johnson faces a risk of an

unconstitutionally painful death, taking his

allegations as true.

On the other hand, “a State retains a significant

interest in meting out a sentence of death in a timely

fashion.” Bucklew, 783 F.3d at 1128. Johnson claims

that “temporary relief may [p. 7] cause a short, finite

delay in the execution,” Pl.’s Br. at 7 (Doc. 5), but as

explained above, he provides no basis for his

A22

assertion that Defendants can rapidly and costeffectively adopt his preferred method of execution.

And because Johnson appears to have sat on his

rights for some time, any impending harm

remediable by injunction is at least somewhat of his

own creation. He has had all facts necessary to

prosecute his claim for almost two years. He has

known about his brain defects since 2008, and,

according to him, the State has planned to use

pentobarbital in executions since November 2013.

Notwithstanding, he delayed filing this case until

twelve days before his execution is set to occur.

The Court finds the parties’ equities to be in

balance, and so this factor does not favor an

injunction.

D. A preliminary injunction would not

serve the public interest.

Finally, the Court must balance whether an

injunction would serve the public interest. The Court

finds the public interest considerations to be the

parties’ individual considerations on a larger scale.

Therefore, the public interest is neutral, and so does

not favor an injunction.

E. Because the favors do not tilt toward

granting a preliminary injunction, the

Court will not issue one.

Only one factor favors issuing a preliminary

injunction, while two are neutral and one—likelihood

of success on the merits—strongly disfavors issuing

one. On this basis, Johnson has failed to carry his

heavy burden. See W. Publ’g Co., 799 F.2d at 1222;

Lankford, 451 F.3d at 503. The Court declines to

A23

issue an injunction. Johnson’s motion is denied.

II. The Complaint fails to state a claim upon

which relief may be granted.

Defendants move to dismiss the Complaint under

Federal Rule of Civil Procedure 12(b)(6) for failing to

state a claim upon which relief can be granted. When

reviewing a complaint under Rule 12(b)(6), the court

takes all facts as true and draws all reasonable [p. 8]

inferences in favor of the non-moving party. Zink,

783 F.3d at 1098. The court first assesses whether

the complaint pleads sufficient facts to state a claim

to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Although the complaint need not make detailed

factual allegations, “a plaintiff’s obligation to provide

the ‘grounds’ of his ‘entitlement to relief’ requires

more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not

do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007) (alteration removed). Legal conclusions “are

not entitled to a presumption of truth when

considering the sufficiency of a complaint.” Zink, 783

F.3d at 1098. If the complaint pleads sufficient facts,

the court then determines whether the complaint

states a claim for relief that is plausible. Iqbal, 556

U.S. at 678.

As discussed above, Johnson has failed to provide

any facts establishing an essential element of his

claim: that there is a feasible and readily

implementable way to execute him. See Glossip, 135

S. Ct. at 2737. Instead, he makes a conclusory

assertion that execution by lethal gas is a “feasible

and available alternative method.” Compl. ¶ 65; see

Zink, 783 F.3d at 1083. Because Johnson failed to

plead enough facts to state a claim to relief, the

A24

Court grants Defendants’ motion. See Iqbal, 556 U.S.

at 678. Johnson’s complaint is dismissed without

prejudice.

III. The Court certifies

interlocutory appeal.

this

Order

for

Because Johnson’s complaint is dismissed

without prejudice, he is free to amend that complaint

to remedy the deficiencies identified in this Order.

See Fed. R. Civ. P. 15(a)(1). Thus, this is not a final

order subject to appeal. See Coniston Corp. v. Vill. of

Hoffman Estates, 844 F.2d 461, 463 (7th Cir. 1988)

(Posner, J.). However, the Court appreciates that

preparing and [p. 9] filing an amended complaint,

followed by preparing and filing a new motion for a

preliminary injunction, will consume some of the

precious little time remaining before the execution

date.

Rule 54(b) permits the district court to certify an

order for interlocutory appeal if it “expressly

determines that there is no just reason for delay.”

Fed. R. Civ. P. 54(b). Although the Court of Appeals

“generally disfavor[s]” Rule 54(b) certification

because of its “interest in preventing piecemeal

appeals,” Clark v. Baka, 593 F.3d 712, 714–15 (8th

Cir. 2010), it may assume jurisdiction over a certified

case if “there is some danger of hardship or injustice

which an immediate appeal would alleviate.” Taco

John’s of Huron, Inc. v. Bix Produce Co., 569 F.3d

401, 402 (8th Cir. 2009).

The looming execution is a sufficiently compelling

reason to permit Johnson to appeal, even though this

Order does not finally adjudicate all of his claims.

Moreover, if Johnson appeals, there will be no waste

A25

of judicial resources, because there will be no other

claims at the district court level and the Court will

not entertain any new motions while the case is

before the Court of Appeals. Therefore, the Court

certifies this Order for interlocutory appeal under

Rule 54(b). See id.

Conclusion

In view of the foregoing, Johnson’s motion for a

temporary restraining order and preliminary

injunction (Doc. 5) is DENIED. Defendants’ motion

to dismiss the Complaint (Doc. 9) is GRANTED.

Johnson’s complaint is DISMISSED without

prejudice.

This Order

CERTIFIED

for

interlocutory appeal under Federal Rule of Civil

Procedure 54(b).

IT IS SO ORDERED.

Date: October 27, 2015

/s/ Greg Kays

GREG KAYS,

CHIEF JUDGE

UNITED

STATES

DISTRICT

COURT

A26

United States Court of Appeals

For the Eighth Circuit

_________________________________

No. 15-3420

_________________________________

Ernest Lee Johnson,

Plaintiff - Appellant

George Lombardi; David Dormire; Terry Russell,

Defendants - Appellees

_______________

Appeal from United States District Court

for the Western District of Missouri - Jefferson City

_______________

Submitted: October 29, 2015

Filed: October 30, 2015

_______________

Before SMITH, COLLOTON, and GRUENDER,

Circuit Judges.

_______________

PER CURIAM.

Death row inmate Ernest L. Johnson moves for a

stay of his execution scheduled for November 3,

A27

2015, at 6:00 p.m., pending full briefing and

argument of [p. 2] his appeal from the district

court’s 1 dismissal of his complaint filed under 42

U.S.C. § 1983. We deny his motion for a stay.

Johnson underwent a craniotomy surgical

procedure in 2008 to remove a brain tumor. After

this surgery, a portion of the tumor remained. The

surgery also resulted in a brain defect and scarring

issue. Consequently, Johnson has suffered from

several seizures in the last few years. After the State

of Missouri scheduled his execution, Johnson filed a §

1983 complaint alleging that Missouri’s lethalinjection protocol would be unconstitutional as

applied to him because of his medical condition.

Specifically, Johnson alleged that pentobarbitol, the

drug Missouri uses to execute inmates, could trigger

a seizure and cause him severe pain. In his

complaint, Johnson identified lethal gas as an

alternative method of execution permitted under

Missouri law. See Mo. Rev. Stat. § 546.720.1.

The district court entered an order denying

temporary injunctive relief and dismissing Johnson’s

complaint. The court determined that Johnson did

not state a claim upon which relief could be granted

because he failed plausibly to plead sufficient facts

establishing the existence of a feasible and readily

implementable method of execution. See Fed. R. Civ.

Pro. 12(b)(6); Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). Johnson now moves for a stay pending

The Honorable David Gregory Kays, Chief Judge,

United States District Court for the Western

District of Missouri.

A28

appeal.

II.

“[A] stay of execution is an equitable remedy. It is

not available as a matter of right, and equity must be

sensitive to the State’s strong interest in enforcing

its [p. 3] criminal judgments without undue

interference from the federal courts.” Hill v.

McDonough, 547 U.S. 573, 584 (2006). “[I]nmates

seeking time to challenge the manner in which the

State plans to execute them must satisfy all of the

requirements for a stay, including a showing of a

significant possibility of success on the merits.” Id. It

is not enough merely to file an action that can

proceed under § 1983. Id. at 583-84. A movant must

present evidence to show a significant possibility of

success on the merits of his claim. Mazurek v.

Armstrong, 520 U.S. 968, 972 (1997) (per curiam).

To succeed on the merits of his claim, Johnson

must show that Missouri’s lethal-injection method of

execution, as applied to him, violates the Eighth and

Fourteenth Amendments. See Clayton v. Lombardi,

780 F.3d 900, 901 (8th Cir. 2015). Based on the

record before us, we conclude that Johnson has not

shown a significant possibility of success.

A prisoner may successfully challenge a method

of execution under the Eighth Amendment only if he

“establish[es] that the method presents a risk that is

‘sure or very likely to cause serious illness and

needless suffering, and give[s] rise to sufficiently

imminent dangers.’” Glossip v. Gross, 576 U.S. ---,

135 S. Ct. 2726, 2737 (2015) (quoting Baze v. Rees,

553 U.S. 35, 50 (2008)). “To prevail on such a claim,

‘there must be a substantial risk of serious harm, an

A29

objectively intolerable risk of harm that prevents

prison officials from pleading that they were

subjectively blameless for purposes of the Eighth

Amendment.’” Id. (quoting Baze, 553 U.S. at 50). A

prisoner “cannot successfully challenge a State’s

method of execution merely by showing a slightly or

marginally safer alternative.” Id. (quoting Baze, 553

U.S. at 51). Instead, a prisoner must identify an

alternative that is “feasible, readily implemented,

and in fact significantly reduce[s] a substantial risk

of severe pain.” Id. (quoting Baze, 553 U.S. at 52). [p.

Under this standard, Johnson’s arguments fall

short. We conclude that Johnson has not shown a

significant possibility of success on his claim that the

method of execution used by Missouri “presents a

risk that is sure or very likely to cause serious illness

and needless suffering.” Id. at 2737. The weakness of

his contention is evidenced by the vagaries,

hypotheticals, and speculation pled in his complaint.

Johnson alleges that his condition raises a

“significant potential” that pentobarbital will

“promot[e]” a seizure and that such a seizure “can

result in significant muscle pain.” Such averments do

not satisfy the demanding requirement that Johnson

show that unnecessary suffering is sure or very likely

to occur. See id. The attached affidavit of Dr. Joel

Zivot fails to show a likelihood of success under the

Eighth Amendment standard. Dr. Zivot notes that

seizures “may be induced” as a result of the

pentobarbital injection. And he notes that

pentobarbital has the potential to promote a seizure.

These equivocal statements do not sufficiently show

a “substantial risk of serious harm.” Id. at 2737

(emphasis added). Conspicuously absent from Dr.

Zivot’s affidavit is any clear statement that

A30

significant pain is “sure or very likely” to occur if the

state executes Johnson using pentobarbital.

Although Dr. Zivot later uses stronger language in a

concluding paragraph, the conclusion is based

expressly on earlier findings that are insufficient.

In addition, Johnson has not shown a significant

possibility of success because he has not identified

another execution method that satisfies the Eighth

Amendment

standard.

Johnson’s

threadbare

assertion that lethal gas is legally available in

Missouri is not the same as showing that the method

is a feasible or readily implementable alternative

method of execution. Indeed, nowhere in Johnson’s

complaint does he plead that Missouri could readily

implement the lethal-gas method. Moreover, Johnson

failed to offer any facts to support his conclusory

allegation that lethal gas would reduce significantly

the substantial and unjustifiable risk of pain. See

Glossip, 135 S. Ct. at 2737 (noting that a plaintiff

must “show that the risk is substantial when

compared to the known and available alternatives”)

(emphasis added); Zink v. Lombardi, 783 F.3d 1089,

1098 (8th Cir. 2015) (“Legal conclusions [p. 5] and

threadbare recitations of the elements of a cause of

action supported by mere conclusory statements are

not entitled to a presumption of truth when

considering the sufficiency of a complaint.”) (internal

quotation omitted). Dr. Zivot’s affidavit does not

suggest that seizures would be any less likely to

occur if Johnson were to be executed using lethal

gas. We thus conclude that Johnson is unlikely to

prevail on the merits because he does not sufficiently

identify an alternative method of execution.

In reaching our conclusion, we are mindful that

the Supreme Court granted a stay pending appeal in

A31

Bucklew v. Lombardi, 572 U.S.---, 134 S. Ct. 2333

(2014), in light of allegations and evidence that

lethal injection combined with a unique health

condition created a substantial risk of severe pain.

But Johnson’s case is different. Bucklew involved a

district court’s sua sponte dismissal of a complaint

despite the fact that Bucklew had presented stronger

evidence that the lethal-injection protocol would

create a risk of severe pain as a result of his medical

condition. See Bucklew v. Lombardi, 783 F.3d 1120,

1128 (8th Cir. 2015). Indeed, the record in Bucklew

included a concession from the state that the

plaintiff had proposed an available alternative

procedure that would have eliminated certain risks

of unnecessary suffering. See Bucklew v. Lombardi,

783 F.3d 1120, 1128 (8th Cir. 2015). No such

concession exists in this case. And, as stated above,

Johnson has provided significantly weaker,

speculative evidence regarding the risk of

unnecessary harm.

III.

Given the record before us and the State’s strong

interest in enforcing its criminal judgment without

undue interference, we deny the motion for stay of

execution pending appeal.

_____________________________

A32

(ORDER LIST:

577 U.S.)

TUESDAY, NOVEMBER 3, 2015

ORDER IN PENDING CASE

15A473 JOHNSON, ERNEST L. V. LOMBARDI,

GEORGE A., ET AL.

The application for stay of execution of

sentence of death presented to Justice Alito

and by him referred to the Court is treated

as an application for stay pending appeal

in the Eighth Circuit. The application is

granted pending the disposition of

petitioner’s appeal. Petitioner’s complaint

alleges that Missouri’s method of execution

violates the Eighth Amendment as applied

to a person with his particular medical

condition. A supporting affidavit by a

medical expert states that “[a]s a result of

Mr. Johnson’s brain tumor, brain defect,

and brain scar, a substantial risk of serious

harm will occur during his execution as a

result of a violent seizure that may be

induced by [the] Pentobarbital injection.”

Because petitioner’s complaint was

dismissed for failure to state a claim, the

State was not required to submit any

evidence refuting this allegation. In the

currently pending appeal, the Court of

Appeals will be required to decide whether

petitioner’s complaint was properly

dismissed for failure to state a claim or

whether the case should have been

permitted to progress to the summary

judgment stage.

A33

United States Court of Appeals

For the Eighth Circuit

_________________________________

No. 15-3420

_________________________________

Ernest Lee Johnson,

Plaintiff - Appellant,

George Lombardi; David Dormire; Terry Russell,

Defendants - Appellees.

_______________

Appeal from United States District Court

for the Western District of Missouri - Jefferson City

_______________

Submitted: January 13, 2016

Filed: March 21, 2016

_______________

Before SMITH, COLLOTON, and GRUENDER,

Circuit Judges.

_______________

COLLOTON, Circuit Judge.

Ernest Johnson, who is sentenced to death in

Missouri, sued the director of the Missouri

Department of Corrections and other state officials,

alleging that the State’s method of execution is

unconstitutional under the Eighth Amendment. The

A34

district court ruled that Johnson’s complaint failed to

state a claim upon which relief could be granted,

because Johnson “failed to provide any facts

establishing an essential element of this claim: that

there is a feasible and readily implementable way to

execute him.” [p. 2] Johnson v. Lombardi, No. 2:15cv-4237-DGK, 2015 WL 6501083, at *5 (W.D. Mo.

Oct. 27, 2015). The court dismissed the complaint

without prejudice and explained that Johnson was

free to amend the complaint to remedy deficiencies

identified in the court’s order. The court observed

that the order dismissing Johnson’s complaint

without prejudice was not a final order subject to

appeal. Id. (citing Coniston Corp. v. Vill. of Hoffman

Estates, 844 F.2d 461, 463 (7th Cir. 1988)).

The district court then reasoned, however, that

Federal Rule of Civil Procedure 54(b) permits a

district court “to certify an order for interlocutory

appeal if it ‘expressly determines that there is no just

reason for delay.’” Id. (quoting Fed. R. Civ. P. 54(b)).

Because Johnson’s execution was scheduled for only

seven days hence, and preparation of an amended

complaint would “consume some of the precious little

time remaining before the execution date,” the

district court thought there was “a sufficiently

compelling reason to permit Johnson to appeal, even

though this Order does not finally adjudicate all of

his claims.” Id. The court then provided that its order

was “certified” for interlocutory appeal under Rule

54(b). Id.

Johnson was not executed on November 3, 2015.

The Supreme Court granted a stay of execution

pending the disposition of Johnson’s appeal to this

court. Johnson v. Lombardi, 136 S. Ct. 443 (2015)

(per curiam). The parties then filed briefs concerning

A35

whether Johnson’s complaint was properly dismissed

for failure to state a claim.

Before addressing the merits of Johnson’s appeal,

we must consider our jurisdiction. This court has

jurisdiction over appeals from “final decisions” of the

district court. 28 U.S.C. § 1291. The district court

correctly observed that there is generally no final

decision for purposes of appellate review when the

court dismisses a complaint without prejudice, but

does not dismiss the action. Local 179, United Textile

Workers of Am., AFL-CIO v. Fed. Paper Stock Co.,

461 F.2d 849, 850 (8th Cir. 1972). [p. 3]

Here, the district court dismissed the complaint

without prejudice, but made clear that it would

permit Johnson to amend his complaint to remedy

perceived deficiencies. But for the looming execution,

the district court contemplated that Johnson would

prepare and file an amended complaint alleging

additional facts to support his constitutional claim.

As there was no clear manifestation by the district

court that its decision on the complaint was the end

of the case, the order dismissing the complaint was

not final. See Hunt v. Hopkins, 266 F.3d 934, 936

(8th Cir. 2001).

The district court sought to achieve finality

through invocation of Rule 54(b), but the court's

effort to “certify” its decision for appeal under that

rule was unsuccessful. Rule 54(b) applies when an

action presents more than one claim for relief, or

when multiple parties are involved. The rule

addresses the appealability of an order that

adjudicates fewer than all the claims or the rights

and liabilities of fewer than all the parties. Where

the district court enters such an order, the rule

A36

permits the court to enter final judgment “as to one

or more, but fewer than all, claims or parties,” if the

court expressly determines that there is no just

reason for delay. Fed. R. Civ. P. 54(b).

Rule 54(b) does not apply to a single-claim action.

Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 742-43

(1976). Johnson’s complaint brought only a single

claim against state officials, alleging that the State’s

method of execution violated the Eighth Amendment.

The district court resolved that single claim by

dismissing the complaint without prejudice, but

contemplated further proceedings on an amended

complaint that the court invited Johnson to file. The

district court could not invoke Rule 54(b) to enter a

final judgment, or to “certify” its order for immediate

appeal, because the court’s order did not leave any

claims, or the rights of any parties, unadjudicated in

a case involving multiple claims or multiple parties.

For these reasons, the district court did not

properly enter a final judgment, and we lack

jurisdiction over Johnson’s appeal. Whatever the

validity of the district [p. 4] court’s determination

that there was no just reason for delaying an appeal,

moreover, the reasons given by the court are

inapplicable after the Supreme Court’s order

granting a stay of execution. Johnson has had ample

time to prepare an amended complaint. The State

has not established a new execution date, and

Johnson is free to move for leave to amend his

complaint without the pressure of a scheduled

execution.

The appeal is dismissed.

______________________________

A37

IN THE UNITED STATES DISTRICT COURT

FOR THE

WESTERN DISTRICT OF MISSOURI

CENTRAL DIVISION

ERNEST L. JOHNSON

)

Plaintiff,

)

)No. 2:15-CV-4237-DGK

)

GEORGE LOMBARDI, et al.,)

)

Defendants.

)

ORDER GRANTING MOTION TO DISMISS

A Missouri state court convicted Plaintiff Ernest

L. Johnson (“Johnson”) of first-degree murder and

sentenced him to death. Johnson has exhausted all

appeals challenging his conviction and the State of

Missouri is now ready to execute him. In this civil

action, he challenges the constitutionality of the

State’s proposed execution protocol as it applies to

him. He alleges that, in light of his brain tumor and

its resulting impairments, he will experience violent,

uncontrollable seizures if the State executes him

with the drug pentobarbital as intended.

Now before the Court is Defendants’ motion to

dismiss (Doc. 42). Because Johnson fails to state a

plausible claim that pentobarbital presents a

substantial risk of severe pain, and that his

alternative method of execution is feasible and

readily implemented, the motion is GRANTED and

this case is DISMISSED WITHOUT PREJUDICE.

A38

Background

On October 22, 2015, less than two weeks before

his scheduled execution, Johnson commenced this

action against Defendants George A. Lombardi,

David Dormire, and Troy Steele, who are all

employees of the Missouri Department of

Corrections. On October 27, 2015, the Court denied a

stay of execution and dismissed the complaint for

failing to state a claim [p. 2] (Doc. 12). Johnson

appealed and moved for a stay of execution. Without

considering whether the Court had properly

dismissed the complaint, the Court of Appeals denied

the stay. Johnson v. Lombardi, 809 F.3d 388 (8th

Cir. 2015). The Supreme Court of the United States

granted the stay and ordered the Court of Appeals to

consider the merits of Johnson’s appeal. Johnson v.

Lombardi, 136 S. Ct. 443 (2015). Because the

propriety of dismissing the complaint was not yet

appealable, the Court of Appeals dismissed the

appeal and returned jurisdiction to this Court.

Johnson v. Lombardi, 815 F.3d 451, 452 (8th Cir.

2016). On August 1, 2016, Johnson filed an amended

complaint. The Court dismissed the amended

complaint without prejudice for failing to state a

claim and found the claim was not barred by the

statute of limitations (Doc. 40). Johnson has now

filed a second amended complaint attempting to cure

his prior pleading deficiencies (Doc. 41).

Taking the factual allegations in the Second

Amended Complaint as true and crediting Johnson

with all reasonable inferences, the Court views the

relevant facts as follows. See Zink v. Lombardi, 783

F.3d 1089, 1093 (8th Cir. 2015) (en banc).

A39

A jury found Johnson guilty of murdering three

gas station employees during a robbery in 1994. 1

Johnson v. State, 333 S.W.3d 459, 462 (Mo. 2011).

Over the next seventeen years, Johnson’s postconviction challenges made their way through the

state courts and he was sentenced to death three

times. Id.

In 2008, Johnson was diagnosed with a slowgrowing brain tumor called an atypical parasagittal

meningioma. Johnson underwent craniotomy surgery

in August 2008, during which doctors removed

fifteen to twenty percent of his brain tissue but were

unable to remove the entire [p. 3] tumor. After the

surgery,

Johnson

started

having

violent,

uncontrollable, and painful seizures of indefinite

length. He takes anti-seizure medications, but they

do not suppress all seizures.

For a few years after the surgery, Johnson knew

only that part of the tumor was still in his brain. A

magnetic resonance imaging (“MRI”) scan in April

2011, showed the surgery caused some scarring of

his brain tissue and left him with a brain defect.

Doctors concluded the scar tissue and brain defect,

together with the tumor remnants, were disrupting

electrical activity in his brain and causing Johnson’s

seizures.

Johnson’s brain health is relevant because he

alleges his condition will expose him to a substantial

and unjustifiable risk of severe pain if the State of

Johnson bludgeoned, stabbed, and shot the victims before

fleeing with money from the store's safe. A complete account of

the crime is set forth in State v. Johnson, 968 S.W.2d 686, 68990 (Mo. 1998).

A40

Missouri executes him as planned. The execution

protocol dictates that non-medical personnel inject

him with up to ten grams of pentobarbital, a

barbiturate which depresses the central nervous

system. Second Am. Cmpl. ¶¶ 24-25, 28. Johnson

claims that because of his medical condition,

administering pentobarbital risks inducing an

unusually painful seizure. Id. ¶¶ 2, 34, 51. For

example, the Second Amended Complaint alleges:

Due to the unique and

specific medical condition

of Mr. Johnson, there is a

substantial

and

unjustifiable

risk

that

Missouri’s lethal injection

protocol currently utilized

the

Missouri

Department of Corrections

will affect Mr. Johnson

differently than an average

healthy inmate and will

cause severe pain and

serious harm to Mr.

Johnson.

There

substantial

and

unjustifiable risk that the

lethal injection drugs will

trigger uncontrollable and

painful

seizures

and

convulsions due to Mr.

Johnson’s unique brain

defect and condition that

were discovered in April

2011.

There

substantial

and

unjustifiable risk that the

A41

seizures and convulsions

will be severely painful

and

cause

needless

suffering.

The

current

method of execution is sure

or very likely to cause

serious and needless pain

in light of Mr. Johnson’s

unique medical condition.

[p. 4]

Id. ¶ 2. The phrase “substantial and unjustifiable

risk” is repeated throughout the pleading. Id. ¶¶ 21, 2

34, 3 51, 4 54. 5 The Second Amended Complaint also

2 “The administration of the lethal injection drug pentobarbital

creates a substantial and unjustifiable risk that violent and

uncontrollable seizures could be triggered during the execution

due to the lethal injection drugs’ interaction with the remaining

meningioma, scarring tissue and brain defect. There is a

substantial and unjustifiable risk that such violent and

uncontrollable seizures will result in a severely painful and

prolonged execution and serious harm. The use of the current

lethal injection drugs is sure or very likely to cause serious and

needless suffering and severe pain in light of Mr. Johnson’s

specific and unique medication condition.” Second Am. Cmpl. ¶

21.

“The brain defects and pre-existing seizure disorder in Mr.

Johnson create a substantial and unjustifiable risk that the

execution will not proceed as intended in that there is a

substantial and unjustifiable risk that the lethal injection drugs

will trigger violent and uncontrollable seizures that are

extremely painful and will lead to an ineffective and

excruciating execution . . . . Mr. Johnson’s seizure threshold is

substantially lower than the general population. Any further

lowering of that threshold by using a seizure promoting

A42

alleges the current execution protocol is “sure or

very likely to . . . trigger[ ] uncontrollable and violent

seizures and convulsions.” Id. ¶ 63; see also ¶¶ 2

(alleging “sure or very likely to cause serious and

needless pain in light of Mr. Johnson’s unique

medical condition”), 21 (asserting “sure or very likely

to cause . . . severe pain in light of Mr. Johnson’s

specific and unique medical condition”).

Johnson contends that if he suffers a seizure it

will not be quick, and it will prolong the execution.

Id. ¶ 21. And because the State of Missouri does not

station medical personnel inside the execution

chamber and there is no plan for what to do if the

pentobarbital triggers a seizure, no one will be able

to do anything for Johnson if he suffers a seizure or if

the pentobarbital fails to end his life. Id. ¶ 36. [p. 5]

compound like pentobarbital will increase the likelihood of a

seizure with a very high degree of probability.” Second Am.

Cmpl. ¶ 34.

“Based on the condition of Mr. Johnson, which includes his

brain tumor, brain defect and scarring, a substantial risk of

serious harm will occur during his execution as a result of a

violent seizure that is induced by pentobarbital. The use of

pentobarbital during the execution protocol significantly

increases the likelihood that a seizure will occur in Mr.

Johnson.” Second Am. Cmpl. ¶ 51.

“[T]he use of the lethal injection drugs used by the

Department of Corrections under its current protocol create a

substantial and unjustifiable risk that Mr. Johnson will suffer a

severely painful execution by the triggering of violent and

uncontrollable seizures and convulsions, which constitutes cruel

and unusual punishment in violation of the Eighth Amendment

to the United States Constitution.” Second Am. Cmpl. ¶ 54.

A43

To support these assertions, Johnson attached an

affidavit from a board-certified anesthesiologist, Dr.

Joel Zivot, M.D. (“Dr. Zivot”). Dr. Zivot opines that

pentobarbital, like another structurally similar

barbiturate, methohexital, is a “seizure-promoting

compound,” and that because Johnson has an

underlying seizure disorder, Missouri’s “execution

protocol will increase the likelihood of a seizure

[during his execution] with a very high degree of

probability.” Aff. in Supp. ¶ 12, 15 (Doc. 41-2)

(emphasis added). Further, since pentobarbital has

an anti-algesic effect - that is, it exaggerates pain - a

pentobarbital induced seizure would be more painful

than any seizure Johnson would typically experience.

Id. ¶ 14. Dr. Zivot concludes that Johnson “faces a

significant medical risk for a serious seizure as the

direct result” of Missouri's execution protocol and his

neurologic disease. Id. ¶ 16 (emphasis added).

Finally, Johnson suggests there is a feasible,

readily

implemented

alternative

method

execution: the State could execute him by nitrogeninduced hypoxia. Second Am. Cmpl. ¶ 58. Missouri

law already permits execution by lethal gas, Mo. Rev.

Stat. § 546.720.1, and nitrogen, which is used

commonly in welding and cooking, is easy to obtain.

Id. ¶¶ 56, 58. The State could acquire nitrogen, fit a

hood or mask over his head, and then administer the

nitrogen to kill him painlessly. Id. ¶ 58.

The sole count in Johnson’s Second Amended

Complaint charges that by using pentobarbital to

execute him, Defendants will inflict cruel and

unusual punishment, which is prohibited by the

Eighth Amendment as applied to the State of

Missouri by the Fourteenth Amendment and

A44

enforceable through 42 U.S.C. § 1983. He seeks a

permanent injunction against his execution by lethal

injection. Id. ¶ 70. [p. 6]

Standard

Defendants move to dismiss the Second Amended

Complaint under Federal Rule of Civil Procedure

12(b)(6) for failing to state a claim upon which relief

can be granted. When reviewing a complaint under

Rule 12(b)(6), a court takes all factual allegations as

true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007). The court gives no deference to “formulaic

recitation[s] of the elements of a cause of action” and

“legal conclusion[s] couched as” facts. Id. Thus, a

plaintiff cannot rely on mere “naked assertion[s]” of

wrongdoing, but rather must support his claim with

“further factual enhancement.” Id. at 557.

The court must determine whether those facts

state a “plausible” claim for relief. Id. at 570. “A

claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the

reasonable inference that the defendant is liable for

the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009); Twombly, 550 U.S. at 556 (requiring

“enough fact to raise a reasonable expectation that

discovery will reveal evidence of [unlawful activity]”).

In the plausibility evaluation, the court is limited

to a review of the amended complaint and materials

necessarily embraced by the amended complaint

such as exhibits. Meehan v. United Consumers Club

Franchising Corp., 312 F.3d 909, 913 (8th Cir. 2002).

This endeavor is “a context-specific task that

requires the reviewing court to draw on its judicial

experience and common sense.” Iqbal, 556 U.S. at

A45

679. A court should bear in mind that “[t]here is no

requirement for direct evidence; the factual

allegations may be circumstantial.” McDonough v.

Anoka Cty., 799 F.3d 931, 945 (8th Cir. 2015). “The

complaint should be read as a whole, not parsed

piece by piece to determine whether each allegation,

in isolation, is plausible.” Id. at 946 (alteration

removed). [p. 7]

Discussion

Defendants

argue

the

Second

Amended

Complaint should be dismissed because it fails to

state a claim and because it is barred by the statute

of limitations.

The Eighth Amendment prohibits the State from

inflicting “cruel and unusual punishments.” U.S.

Const. amend. VIII. A prisoner sentenced to death

may challenge an execution protocol as applied to

him. Bucklew v. Lombardi, 783 F.3d 1120, 1127 (8th

Cir. 2015) (en banc).

To challenge an execution method as “cruel and

unusual,” a prisoner must plead facts supporting two

essential elements: (1) the method is “sure or very

likely to cause serious illness and needless

suffering”; and (2) that a particular alternative

method

execution

“feasible,

readily

implemented, and in fact significantly reduces a

substantial risk of severe pain.” Glossip v. Gross, 135

S. Ct. 2726, 2737 (2015) (emphases and alteration

removed).

A46

I. The Second Amended Complaint fails to

state a claim because it does not establish

the

plausibility

that

pentobarbital

presents a substantial risk of inflicting

severe pain on Johnson.

A prisoner challenging a method of execution

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

(internal quotation marks and citations omitted). To

prevail on this claim “there must be 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.” Id. It is the prisoner’s

burden to establish “that the State's lethal injection

protocol creates a demonstrated risk of severe

pain.” Id. (restated as “substantial risk of severe

pain” at 2740). In the context of the present case,

Johnson bears the burden of presenting facts in his

complaint establishing that the use of [p. 8]

pentobarbital is sure or very likely to cause him to

have a seizure, and that this seizure will be severely

painful, thus Missouri’s execution protocol presents a

substantial risk of inflicting severe pain on him.

In dismissing the First Amended Complaint for

failing to state a claim, the Court found the

complaint deficient because it contained conclusory

allegations and recitations of the legal standard. It

also found the remaining allegations did not

establish: (1) the probability that pentobarbital will

trigger seizures because of Johnson’s brain defects;

(2) a link between pentobarbital and the frequency of

seizures; and (3) the possibility that a seizure during

A47

Johnson’s execution would be the result of his

seizure disorder.

Johnson intersperses the Second Amended

Complaint with conclusory statements that merely

repeat the legal standard by asserting pentobarbital

poses a “substantial and unjustifiable risk” of severe

pain because it is “sure or very likely” to trigger a

seizure. Second Am. Cmpl. ¶¶ 2, 21, 34, 51, 54; Aff.

in Supp. ¶¶ 14, 16. These conclusory statements are

not entitled to an assumption of truth. McDonough,

799 F.3d at 945. Neither has Johnson corrected the

deficiencies in his previous complaint by providing a

sufficient factual basis for the claim that using

pentobarbital on him is “sure or very likely” to

trigger a seizure, creating a “substantial risk” of

causing severe pain.

Johnson relies on Dr. Zivot’s affidavit to establish

a factual basis that administering pentobarbital to

him is “sure or very likely” to cause a seizure. The

affidavit does not do this.

What the affidavit does do is provide plausible

evidence that pentobarbital is a seizure promoting

compound, that Johnson has a lower threshold for

seizures due to his epilepsy, and that any

pentobarbital induced seizure would be more painful

than usual. This outlines a theory [p. 9] explaining

how pentobarbital could increase Johnson’s risk of

suffering a seizure, and that if Johnson suffered a

pentobarbital induced seizure, it would be severely

painful.

It does not establish - as Glossip requires - that

using pentobarbital is “sure or very likely” to cause a

seizure in him and so inflict unnecessary pain. Dr.

A48

Zivot never uses the words “sure” or “very likely” or

their equivalent in describing the probability that

Johnson will actually suffer a seizure. The closest he

comes is observing that in individuals with preexisting epilepsy, exposure to seizure producing

drugs is “more likely” to produce a seizure. Id. ¶12.

Granted, he repeatedly claims there is a

“substantial” risk here, asserting “Mr. Johnson’s

epilepsy creates a unique and substantially

important risk when exposed to anything that

promotes seizures,” and there is “a substantial risk

[that] serious harm will occur during his execution as

a result of a violent seizure that is induced by

Pentobarbital injection.” Aff. in Supp. ¶¶ 12, 14. But

it is unclear exactly what risk he is referring to, the

risk of Johnson suffering a pentobarbital induced

seizure, or the risk that if he suffers a seizure, it will

be very painful? The clearest expression of Dr. Zivot’s

view is in the affidavit’s conclusion when he states

Johnson is at “significant medical risk for a serious

seizure.” Aff. in Supp. ¶¶ 12, 14, 16. While a

“significant” risk is noteworthy, it does not mean the

same thing as “sure or very likely.” A “significant”

risk is not an imminent risk or an objectively

intolerable risk as set forth in Glossip. See McGehee

v. Hutchinson, No. 17-1804, 2017 WL 1404693, at *2

(8th Cir. Apr. 17, 2017), cert. denied, No. 16-8770,

2017 WL 1414915 (Apr. 20, 2017) (finding that “a

significant possibility that the prisoners could show

an ‘objectively intolerable risk’ of severe pain” did not

meet the “rigorous ‘sure or very likely’ standard of

Glossip”).

Accordingly, the Court finds the Second Amended

Complaint does not meet the pleading requirements

as set forth in Glossip. [p. 10]

A49

II. The Second Amended Complaint fails to

state a claim because it does not establish

Johnson’s

alternative

method

execution is feasible and capable of being

readily implemented in Missouri.

Johnson pleads nitrogen-induced hypoxia is

feasible and readily implemented because: (1)

execution by lethal gas is authorized by Missouri

statute; (2) the tools necessary to perform the

execution, such as the nitrogen gas and a hood or

mask, are easily acquired in the open market; (3)

nitrogen can be acquired without the need of a

license; and (4) it does not require a gas chamber or

construction of a facility. Second Am. Cmpl. ¶ 58.

To plead a method of execution claim, a prisoner

must identify an alternative execution protocol that

is “feasible, readily implemented, and in fact

significantly reduces a substantial risk of severe

pain.” 6 Glossip, 135 S. Ct. at 2737. The Eighth

Circuit explained this standard stating, “the State

must have access to the alternative and be able to

carry out the alternative relatively easily and

reasonably quickly.” McGehee, 2017 WL 1404693, at

*3.

Attached to and embraced by Johnson’s Second

Amended Complaint is a report on nitrogen-induced

hypoxia (Doc. 41-3). This report actually indicates

nitrogen induced hypoxia is not feasible or capable of

being readily implemented for use in state

For purposes of this motion, the parties do not dispute

Johnson’s alternative method of execution will substantially

reduce the risk of harm. The only issue in dispute is whether

the alternative method is feasible and readily implemented.

A50

executions. The report demonstrates the process

used in a state execution would likely require a more

elaborate mechanism than simply using a hood to

deliver the nitrogen gas. Doc. 41-3 at 10. The report

states using a mask to deliver nitrogen risks

complications, such as the mask not sealing tightly

around the prisoner’s face. Id. at 7. If this occurs,

“oxygen entering into the hood . . . can prolong [the]

time to unconsciousness and death, as well as

increase the possibility of involuntary movements by

the subject.” Id. at 11. [p. 11]

These allegations do not demonstrate nitrogeninduced hypoxia is capable of being readily

implemented: the state would need to consider a

protocol that is more elaborate than merely

purchasing a hood or mask; Missouri would need

time to develop a protocol to address risk of oxygen

entering the hood; and Department of Corrections

personnel would need to be trained on the process.

Equally fatal to this claim, Johnson has not pled

facts indicating Missouri is willing to perform this

type of execution, which suggests it may not be

feasible. C.f. Bucklew v. Lombardi, No. 14-08000-CVW-BP, 2016 WL 6917289, at *5 (W.D. Mo. Jan. 29,

2016) (holding Plaintiff adequately pled alternative

method of execution by lethal gas because the

complaint included comments by the Missouri

Attorney General indicating a willingness to carry

out a lethal gas execution).

Therefore, Johnson has failed to establish that

nitrogen-induced hypoxia is a feasible and readily

implemented alternative method of execution.

A51

III.

Johnson’s claim is not barred by the

statute of limitations.

Each time Defendants have moved to dismiss

Johnson’s complaint, including here, they have

raised a statute of limitations argument. Although

the Court could dismiss the amended complaint for

the reasons stated above, the Court will address this

argument because it will likely rise again.

“Bar by a statute of limitation is typically an

affirmative defense, which the defendant must plead

and prove.” Walker v. Barrett, 650 F.3d 1198, 1203

(8th Cir. 2011). Thus, “the possible existence of a

statute of limitations defense is not ordinarily a

ground for Rule 12(b)(6) dismissal unless the

complaint itself establishes the defense.” Id.

“[T]he applicable statute of limitations governing

method-of-execution Eighth Amendment claims” is a

question the Eighth Circuit “has not addressed.”

Bucklew, 783 F.3d at [p. 12] 1128. While the Court

does not have the benefit of Eighth Circuit guidance,

it notes the limitations period for § 1983 lawsuits is

generally the applicable state-law limitations period

for personal-injury torts, Wallace v. Kato, 549 U.S.

384, 387 (2007), which in Missouri is five years, Mo.

Rev. Stat.§ 516.120(4). See also Wellons v. Comm'r,

Ga. Dep't of Corr., 754 F.3d 1260, 1263 (11th Cir.

2014).

The limitations clock in § 1983 cases begins

ticking “when the plaintiff has a complete and

present cause of action,” which is “when the plaintiff

can file suit and obtain relief.” Wallace, 549 U.S. at

388 (internal quotation marks omitted). Applied

here, that time would be either when Johnson

A52

became aware of his brain defect or when the State

first selected a method of execution that presented

Johnson a substantial risk of severe pain.

Defendants argue the State has used lethal

injection since well before Johnson began having

health issues in 2008, so his claim accrued no later

than August 2013, five years after his surgery and

two years before he filed this lawsuit. Defendants

claim their argument is bolstered by Johnson’s

allegations that pentobarbital is a fast-acting

barbiturate and Missouri’s prior method of execution

used a fast-acting barbiturate.

The Second Amended Complaint fails to

establish a statute of limitations defense because: (1)

the facts in the complaint establish Johnson’s claim

was not available to him until 2011; and (2) the

amended complaint does not pinpoint a date the

State began using pentobarbital in its protocol.

The facts giving rise to this Glossip claim rely on

Johnson’s knowledge of his specific brain scarring

that was not known to him until at least 2011 when

he underwent the MRI scan. This scan established

that scarred brain tissue caused Johnson’s violent

and uncontrollable [p. 13] seizures. Because Johnson

could not have been reasonably aware of these

injuries, which form the basis of his complaint,

before 2011, his complaint is not barred by the

statute of limitations.

Conclusion

In view of the foregoing, Defendant’s motion to

dismiss (Doc. 42) is GRANTED. Johnson’s complaint

is DISMISSED WITHOUT PREJUDICE.

A53

IT IS SO ORDERED

Date: May 1, 2017

/s/ Greg Kays

GREG KAYS, CHIEF

JUDGE

UNITED STATES

DISTRICT COURT

A54

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 17-2222

Ernest Lee Johnson

Appellant

Anne L. Precythe, et al.

Appellees

_________________________________________________

Appeal from U.S. District Court for the Western

District of Missouri - Jefferson City

(2:15-cv-04237-DGK)

_________________________________________________

ORDER

The petition for rehearing en banc is denied. The

petition for rehearing by the panel is also denied.

Judge Benton did not participate in the

consideration or decision of this matter.

October 02, 2018

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

_______________________

/s/ Michael E. Gans

A55

AFFIDAVIT OF JOEL ZIVOT, M.D.,

FRCP(C)

State of Georgia

County of Guinnett

)

I, Joel Zivot, being of sound mind and lawful

age, hereby state under penalty of perjury as

follows:

1. I am an associate professor and senior

member of the Departments of Anesthesiology

and Surgery, Emory University of Medicine, in

Atlanta, Georgia. I am the fellowship director for

training in Critical Care Medicine for the

Department of Anesthesiology. I hold board

certification in Anesthesiology from the Royal

College of Physicians and Surgeons of Canada

and the American Board of Anesthesiology. I am

board certified in Critical Care Medicine from

the American Board of Anesthesiology.

2. I have practiced anesthesiology and critical

care medicine for 20 years and in that capacity, I

have personally performed or supervised the care

of over 40,000 patients.

3. I hold an active medical license from the

states of Georgia, and have held unrestricted

medical licenses in Ohio, the District of

Columbia, Michigan, and the provinces of

Ontario and Manitoba. I hold a license to

prescribe narcotics and other controlled

substances from the US Drug Enforcement

Administration (DEA).

A56

[p. 2] 4. I have been consulting with attorneys

representing Mr. Ernest Johnson, a death row

prisoner in the State of Missouri regarding Mr.

Johnson’s medical condition and the risks

attendant to executing him by lethal injection.

5. On August 14, 2015, I travelled to Potosi

Correctional Center to examine Mr. Johnson. On

examination, I found the following. He complains

of recurring throbbing pain on the right side of

his head that he rates as 7/10. This pain is worse

when standing and better when lying down. He

has balance problems and complains of weakness

in the right leg. He suffers from intermittent

chest pain that occurs weekly and lasts from 5–

10 minutes at a time. He describes a heartburn

sensation

that

occurs

with

regularity.

Noteworthy on physical exam is a large scar on

his head from prior cranial surgery in an

attempt to remove a meningioma. Cranial nerves

II-XII where intact and his blood pressure was

130/80 in the left arm and 140/80 in the right

arm. His oxygen saturation was 98% on room

air. His right leg was weaker than his left leg

and he had hyper-reflexia of the deep tendon

reflexes of the right leg.

6. I reviewed the records from Vista Imaging

of Jefferson County dated 4/18/2011 and

7/9/2015. I reviewed the brain MRI images from

those dates as well. I include 2 images with this

report that require further explanation. The

following image is a sagittal view (the plain that

divides the body into left and right halves). This

image shows 2 significant findings. The white

line showing the edge of the skull at the top of

A57

the image has a missing piece that appears

black. This indicates that he has a hole in the top

of his skull. Directly beneath the hole is [p. 3] a

black region that represents missing brain

tissue. I estimate the total quantity of missing

brain tissue to be 15–20%.

As a comparison, I include a normal sagittal

brain image. Note that the brain tissue is

present and the skull defect is absent.

[p. 4]

A58

7. Mr. Johnson is missing the region of the

brain responsible for movement and sensation of

the legs. Refer to the following picture that

shows the marked area in question. The image

represents a view from the top of the brain

looking down. The blue area represents the

sensory region for the legs and the red

represents the motor region.

[p. 5]

A59

8. The region of missing brain in Mr. Johnson

corresponds to his findings of leg weakness,

imbalance, and hyper-reflexia. This brain tissue

will not grow back and this weakness and

imbalance will not improve for the remainder of

his life.

9. During the original operation performed on

August 28th, 2008 to remove the brain tumor

that was determined to be a meningioma

according to a histology evaluation, it was noted

that all of the brain tumor could not be removed.

The first image in this report taken from the

most recent evaluation from 7/9/2015 does not

show significant change from 4/15/2011. This is

an expected finding as a brain Meningioma is

known to grow very slowly. Nevertheless, the

brain tumor

A60

[p. 6] remains in Mr. Johnson and would be

detectable along the edges of the missing brain

defect as seen on the first MRI image.

10. Mr. Johnson is known to have a seizure

disorder and this is the direct result of the brain

surgery. Scars in the brain and missing brain

defects create disrupted areas of electrical brain

activity that manifest as a seizure. Medication is

required lifelong to suppress this electrical

seizure propensity.

11. If Mr. Johnson should have a seizure, it

would manifest as a violent shaking of the legs

and then spread to the rest of the body and

produce unconsciousness. Seizures may be selflimiting or last for a prolonged period of time.

Outwardly, a seizure is a striking and alarming

event that is seen as total body shaking and

straining. During a seizure, it is not uncommon

for the seizing individual to involuntarily

urinate. Physically restraining a seizing

individual is very difficult and will not result in a

seizure resolution. After a seizure stops, the

individual experiences generalized significant

muscle pain and disorientation.

12. In the Missouri lethal injection protocol,

Midazolam and Pentobarbital are the agents

that will be used. Though benzodiazepines and

barbiturates are used to treat seizures, both of

these agents also have the real potential to

promote a seizure when given. The extent and

duration of these drug-provoked seizures are

unknown.

A61

13. In the setting of lethal injection, Mr.

Johnson will be physically restrained on a

gurney. If Mr. Johnson should have a seizure,

and this is a [p. 7] significant possibility, it will

be observed as a violent struggle against his

restraints; he will likely urinate as well.

14. As a result of Mr. Johnson’s brain

tumor, brain defect, and brain scar, a substantial

risk of serious harm will occur during his

execution as a result of a violent seizure that

may be induced by Pentobarbital injection.

Generalized seizures, such as the one that would

occur in Mr. Johnson, are severely painful.

Pentobarbital is a drug in the barbiturate class

and it is important to note that all barbiturates

lack the capacity to reduce pain and are never

given to reduce pain. Pharmacologically,

barbiturates like Pentobarbital are actually

known to exaggerate pain. That is, they make

pain worse.

15. Based on the above findings I am of the

medical opinion that Mr. Johnson faces a

significant medical risk for a serious seizure as

the direct result of the combination of the

Missouri lethal injection protocol and Mr.

Johnson’s permanent and disabling neurologic

disease.

FURTHER AFFIANT SAYETH NOT.

I swear or affirm that the foregoing statements

are true and accurate.

[seal]

/s/ Joel Zivot

A62

Joel Zivot, MD, FRCP (C)

Subscribed and sworn to before me on this 22nd

day of October, 2016.

/s/Chanta Randall

Notary Public

A63

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

CENTRAL DIVISION

)

Plaintiff,

)

GEORGE A.

)

LOMBARDI,

)

DAVID DORMIRE, AND )

TROY STEELE,

)

Defendants. )

ERNEST L. JOHNSON,

Case No. 2:15-CV4237-DGK

THIS IS A

CAPITAL CASE

SECOND AMENDED COMPLAINT

INTRODUCTION

1. Plaintiff Ernest Johnson is a Missouri inmate

currently residing at the Potosi Correctional Center

under a sentence of death.

Mr. Johnson was

diagnosed with an atypical parasagittal meningioma

brain tumor.

He had a craniotomy surgical

procedure in August 2008 where a portion of the

tumor was removed. Another portion of the tumor,

however, could not be removed and remains in Mr.

Johnson’s brain. The craniotomy procedure resulted

in scarring tissue and a brain defect that cause his

current medical problems. The scarring tissue and

A64

brain defect were not known until an MRI was

conducted in April 2011.

2. Due to the unique and specific medical

conditions of Mr. Johnson, there is a substantial and

unjustifiable risk that Missouri’s lethal injection

protocol currently utilized by the Missouri

Department of Corrections will affect Mr. Johnson

differently [p. 2] than an average healthy inmate

and will cause severe pain and serious harm to Mr.

Johnson. There is a substantial and unjustifiable

risk that the lethal injection drugs will trigger

uncontrollable and painful seizures and convulsions

due to Mr. Johnson’s unique brain defect and

condition that were discovered in April 2011. There

is a substantial and unjustifiable risk that the

seizures and convulsions will be severely painful and

cause needless suffering. The current method of

execution is sure or very likely to cause serious and

needless pain in light of Mr. Johnson’s unique

medical condition. Mr. Johnson seeks this civil

action for declaratory and injunctive relief against all

Defendants for committing acts, under color of state

law, that violate the Eighth and Fourteenth

Amendments to the United States Constitution and

under 42 U.S.C. § 1983.

JURISDICTION AND VENUE

3. Jurisdiction is conferred by 28 U.S.C. § 1331

which provides for original jurisdiction in the district

courts of all civil actions arising under the

Constitution, laws and treaties of the United States.

Jurisdiction is also conferred by 28 U.S.C. § 1343

which provides for original jurisdiction in the district

courts over any civil action authorized by law to

redress the deprivation under color of any State law,

A65

statute, ordinance, regulation, custom or usage, of

any right, privilege or immunity secured by the

United States Constitution. Jurisdiction is also

conferred under 42 U.S.C. § 1983 which provides for

a cause of action for the protection of the rights,

privileges, or immunities secured by the United

States Constitution. The declaratory and injunctive

relief sought is also authorized by 28 U.S.C. §§ 2201

and 2202.

[p. 3] 4. Venue is proper in the Western District of

Missouri under 28 U.S.C. § 1391(1)-(2), which

provides that any civil action may be brought in a

judicial district in which any defendant resides if all

defendants are residents of the State in which the

district is located, or in a judicial district in which a

substantial part of the events or omissions giving

rise to the claim occurred. Upon information and

belief, defendant Lombardi resides in the territorial

jurisdiction of this district.

Further, upon

information and belief,

decisions regarding

Missouri’s execution protocol were made within this

Court’s territorial jurisdiction.

PARTIES

5. Plaintiff Ernest Johnson is a resident of the

State of Missouri and presently resides at Potosi

Correctional Center in Mineral Point, Missouri. Mr.

Johnson has been sentenced to death. No execution

date is pending as of the date of this amended filing.

6. Defendant George Lombardi is the Director of

the Missouri Department of Corrections. His office is

located at 2729 Plaza Drive, Jefferson City, Missouri.

Upon information and belief, Mr. Lombardi resides

within the Western District of Missouri.

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7. As Director for the DOC, Missouri law (Mo.

Rev. Stat. § 546.720) specifically directs Defendant

Lombardi to prescribe and direct the means by which

executions are carried out within the statutorily

prescribed methods of lethal gas or lethal injection.

[p. 4] 8. Defendant David R. Dormire is the

Director of the Division of Adult Institutions for the

Missouri Department of Corrections. His office is

also located at 2729 Plaza Drive in Jefferson City,

Missouri.

9. As Director of Adult Institutions, Defendant

Dormire is the chief executive officer and has

command-and-control authority over DOC officials,

officers and employees who are involved directly or

indirectly with carrying out executions and with

respect to the implementation of the execution

protocol.

10.

Defendant Troy Steele is the Warden of the

Eastern Reception and Diagnostic & Correctional

Center (ERDCC) located at 2727 Highway K, Bonne

Terre, Missouri. The State of Missouri currently

conducts executions at the ERDCC.

11.

Defendant Steele has authority over the

staff at ERDCC and is responsible for the manner in

which the execution is carried out by the staff and

execution team at ERDCC.

12.

All defendants are sued in their official

capacities. At all times pertinent to the matters

raised in this Complaint, all defendants acted and

will act under color of state law.

FACTUAL BACKGROUND

Mr. Johnson’s Medical Condition

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13.

Mr. Johnson suffers from an atypical

parasagittal meningioma brain tumor. The tumor

was discovered in or about 2008.

14.

A meningioma is a tumor that arises from

a layer of tissue called the meninges that covers the

brain and the spine. A meningioma is typically slow

growing.

[p. 5] 15.

Mr. Johnson had a craniotomy surgical

procedure on August 28, 2008, to remove a portion of

the meningioma. The entire meningioma could not

be removed during the craniotomy. A portion of the

tumor remains in Mr. Johnson’s brain.

16.

The craniotomy procedure resulted in a

hole in the skull of Mr. Johnson that is still present.

The craniotomy procedure also resulted in scarring

tissue in Mr. Johnson’s brain. The craniotomy also

resulted in a significant brain defect as a portion of

Mr. Johnson’s brain has been removed or compressed

due to the existence of the tumor and the craniotomy

procedure. This defect is depicted as a dark space or

a hole in the brain.

17.

The brain defect and the scarring tissue

that resulted from the craniotomy procedure were

not known until an MRI procedure was conducted in

April 2011.

18.

The brain defect is in an area of the brain

responsible for the movement and sensation of the

legs.

19.

The remaining portion of the meningioma,

the scarring tissue and the brain defect can create

disrupted areas of the electrical brain activity that

can manifest as a violent and uncontrollable seizure.

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20.

Since the surgical procedure, there are

documented instances where Mr. Johnson has

suffered from seizures. Mr. Johnson is known to

have a seizure disorder (epilepsy) as s direct result of

the presence and subsequent attempted resection of

his brain tumor. The medical records reference that

Mr. Johnson has been prescribed anti-seizure

medications due to his condition. His brain defect,

scarring and tumor cause these seizures.

[p. 6] 21.

The administration of the lethal

injection drug pentobarbital creates a substantial

and unjustifiable risk that violent and uncontrollable

seizures could be triggered during the execution due

to the lethal injection drugs’ interaction with the

remaining meningioma, scarring tissue and brain

defect. There is a substantial and unjustifiable risk

that such violent and uncontrollable seizures will

result in a severely painful and prolonged execution

and serious harm. The use of the current lethal

injection drugs is sure or very likely to cause serious

and needless suffering and severe pain in light of Mr.

Johnson’s specific and unique medication condition.

22.

Mr. Johnson’s medical

documented in DOC records.

condition

23.

The legal issues surrounding the existence

of Mr. Johnson’s brain tumor have not been the

subject of any litigation prior to the filing of the

current lawsuit.

Missouri’s Lethal Injection Protocol

24.

Missouri’s lethal injection protocol calls for

the administration of 5 grams of pentobarbital,

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divided into two syringes, and administered through

an IV line into the execution chamber, where the

prisoner is alone and strapped to a gurney. No

medical personnel are close at hand, and the

prisoner is monitored remotely from the execution

support room. Although medical personnel insert

the IV lines at the outset, the lethal drug itself is

injected by non-medical personnel pushing syringes

into the IV line at a pre-determined flow rate.

25.

Pentobarbital is a drug within the

barbiturate class and is the agent that will be used

in the Missouri lethal injection protocol.

All

barbiturates are derived from the parent compound

barbituric acid, which is an organic molecule.

Relevant properties of [p. 7] barbiturates have a

variety of effects on the central nervous system that

include both excitatory and inhibitory states. A

barbiturate acts by depressing the central nervous

system, particularly on certain portions of the brain.

26.

Methohexital is in the barbiturate class

and is a close cousin to pentobarbital as it shares a

common central molecular structure. Methohexital

is commonly used in electroconvulsive therapy (ECT)

which is a treatment for intractable depression. The

ECT procedure requires the producing of a seizure of

a brief and controlled duration. This procedure is

repeated on at least 10 separate occasions. During

the induced seizure, brief unconsciousness is

necessary as the seizure is painful and disturbing.

In extensive research, methohexital has been shown

to intensify and prolong the seizures and is the drug

of choice for ECT procedures. Methohexital and

other barbiturates have been shown to produce

seizures in individuals without an underlying seizure

disorder or epilepsy. In individuals with pre-existing

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epilepsy, the production of a seizure is even more

certain and more likely to occur when the brain is

exposed to the barbiturate which a seizure producing

drug.

27.

The procedure itself begins with the

insertion of the IV lines—one in each arm (or a

central line in the femoral, jugular, or subclavian

vein if venous access in the arms is limited). About

15 to 30 minutes before the lethal drug is injected, a

saline solution, which has historically been colored

with methylene blue (or another dye) is injected into

the prisoner to determine if the lines are clear. The

gurney is positioned so medical personnel can

remotely observe the prisoner’s face, directly, “or

with the aid of a mirror.” Medical personnel monitor

the prisoner remotely during the execution.

[p. 8] 28.

Non-medical personnel administer the

lethal drugs through syringes into the IV lines. After

the administration of the initial 5 grams of

pentobarbital, the non-medical personnel flush the

IV lines with saline and methylene blue. Shortly

thereafter, the execution chamber’s curtains are

closed and medical personnel check the prisoner to

determine if he is deceased.

29.

If the prisoner is not dead, then nonmedical personnel inject an additional 5 grams of

pentobarbital through two additional syringes.

30.

During the administration of the lethal

drug, no one is present in the execution chamber

other than the prisoner and no medical personnel are

at hand. The prisoner is monitored only remotely

from the execution support room. The members of

the execution team only enter the execution chamber

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when the curtains are closed to determine if the

prisoner has died. This check is performed after the

administration of the first injection of pentobarbital,

and then again if a second injection is needed.

31.

If the prisoner does not die after the

administration of 10 grams of pentobarbital,

Missouri’s protocol provides no further guidance.

The protocol is completely silent as to what

procedures should be followed in the event the lethal

drugs trigger uncontrollable seizures.

32.

If the prisoner is not killed by the

execution, there is no protocol or equipment for

resuscitating the prisoner.

33.

If the execution is halted, and the prisoner

remains alive, the State of Missouri must resume

medical care of the prisoner, as it is obligated to do

under the [p. 9] Eighth Amendment and Fourteenth

Amendments to the United States Constitution. The

protocol is silent as to this possible scenario.

34.

Mr. Johnson has brain defects including

scarring tissue, missing brain matter and a portion

of brain tumor. These brain defects cause a seizure

disorder or epilepsy. The brain defects and preexisting seizure disorder in Mr. Johnson create a

substantial and unjustifiable risk that the execution

will not proceed as intended in that there is a

substantial and unjustifiable risk that the lethal

injection

drugs

will

trigger

violent

and

uncontrollable seizures that are extremely painful

and will lead to an ineffective and excruciating

execution. The use of pentobarbital is very likely to

cause or trigger severely painful and prolonged

seizures and convulsions.

As noted above,

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methohexital and other barbiturates, which are in

the same class of drugs as pentobarbital and share a

similar common central molecular structure to

pentobarbital, have been shown in extensive

research to produce, intensify and prolong seizures in

ECT procedures involving patients with normal

brain conditions. In individuals with pre-existing

epilepsy or a seizure disorder, like Mr. Johnson, the

production of such a seizure is even more certain and

more likely to occur when the brain is exposed to

drugs that have been shown to produce and promote

seizures. Mr. Johnson’s epilepsy and brain defect

creates a unique and substantially important risk

when exposed to anything that has been shown to

promote seizures. Mr. Johnson’s seizure threshold is

substantially lower than the general population.

Any further lowering of that threshold by using a

seizure promoting compound like pentobarbital will

increase the likelihood of a seizure with a very high

degree of probability.

[p. 10]35. Missouri’s protocol is grossly inadequate

to address the significant risks to Mr. Johnson

during an execution—risks that could cause an

excruciating and severely painful procedure.

36.

No medical assistance will be at hand—

instead the personnel will be watching from the

execution support room, unable to lend any medical

aid to Mr. Johnson in the event it is constitutionally

mandated.

Amended Affidavit of Dr. Joel Zivot

37.

Dr. Joel Zivot is a highly trained, boardcertified physician.

He serves as an associate

professor and senior member of the Department of

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Anesthesiology and Surgery at Emory University of

Medicine in Atlanta, Georgia.

He holds board

certifications in Anesthesiology and in Critical Care

Medicine. A CV of Dr. Zivot is attached hereto as

Exhibit 1. The amended affidavit of Dr. Zivot is

attached hereto as Exhibit 2.

38.

Dr. Zivot has practiced anesthesiology and

critical care medicine for 20 years and has personally

performed, or supervised, the care of over 40,000

patients. (Ex. 2 at ¶ 2).

39.

Dr. Zivot has reviewed the medical records

for Ernest Johnson.

40.

On August 14, 2015, Dr. Zivot traveled to

Potosi Correctional Center to examine Mr. Johnson

in person.

41.

Based on his personal examination of Mr.

Johnson, Dr. Zivot found that Mr. Johnson

complained of recurring throbbing pain on the right

side of his head that is rated 7 out of 10. Mr.

Johnson indicated this pain is worse when standing

and better [p. 11] when lying down. Mr. Johnson

complained of balance problems and weakness in the

right leg. (Ex. 2 at ¶ 5).

42.

Upon physical examination, Dr. Zivot

observed a large scar on Mr. Johnson’s head from a

prior cranial surgery. Cranial nerves II through XII

were observed to be intact. (Ex. 2 at ¶ 5).

43.

Dr. Zivot observed that Mr. Johnson’s right

leg was weaker than his left leg and he had hyperreflexia on the deep tendon reflexes of his right leg.

(Ex. 2 at ¶ 5).

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44.

Upon his review of the medical records and

MRI images for Mr. Johnson, Dr. Zivot observed a

small hole in the top of Mr. Johnson’s skull. He also

observed a black region in the brain area that

represents missing brain tissue. Dr. Zivot estimates

that the total quantity of the brain defect is 15 to

20%. The brain defect is irreversible. (Ex. 2 at ¶ 6).

45.

Mr. Johnson’s brain defect is in the region

of the brain responsible for movement and sensation

of the legs. (Ex. 2 at ¶ 7). The region of the brain

defect corresponds to Mr. Johnson’s complaints and

physical observations about leg weakness, imbalance

and hyper-reflexia. (Ex. 2 at ¶ 8). The brain defect

will not grow back or improve over time and the

associated weakness and imbalance will not improve.

(Ex. 2 at ¶ 8).

46.

Dr. Zivot compared MRI images from April

15, 2011, to an image taken on July 9, 2015. The

images and the reports indicate that there is no

significant change in the meningioma. This is an

expected finding as brain meningiomas tend to grow

very slowly. (Ex. 2 at ¶ 9).

[p. 12]47. Dr. Zivot also observed that Mr.

Johnson has a seizure disorder which is a direct

result of the brain surgery. (Ex. 2 at ¶ 10).

48.

According to Dr. Zivot, scar tissue in the

brain and the brain defect create disrupted areas of

electrical brain activity. (Ex. 2 at ¶ 10).

49.

Based on his review of Missouri’s execution

protocol and Mr. Johnson’s medical records and

images, Dr. Zivot opines that the use of pentobarbital

will increase the likelihood of seizure in Mr. Johnson

A75

with a very high degree of probability. (Ex. 2 at ¶

10).

50.

A drug induced seizure would likely

manifest as a violent shaking of the legs which can

then spread to the rest of the body and then produce

unconsciousness. The seizure may be self-limiting or

could last for a prolonged period of time. Outwardly,

the seizure is striking and an alarming event that is

seen as a total body shaking and straining. During

such a seizure, physically restraining a seizing

individual is very difficult and will not result in a

resolution of the seizure. Such seizures can result in

significant muscle pain and disorientation. (Ex. 2 at

¶ 11).

51.

Based on the condition of Mr. Johnson,

which includes his brain tumor, brain defect and

scarring, a substantial risk of serious harm will occur

during his execution as a result of a violent seizure

that is induced by pentobarbital. (Ex. 2 at ¶ 14). The

use of pentobarbital during the execution protocol

significantly increases the likelihood that a seizure

will occur in Mr. Johnson. Pentobarbital, a drug in

the barbiturate class, produces a variety of effects on

the central nervous system of the patient. A similar

drug, Methohexital, a barbiturate and close cousin of

pentobarbital, is [p. 13] used in electroconvulsive

therapy to produce seizures in a patient.

Methohexital is known to induce seizures in patients

without pre-existing seizure disorders as seen in Mr.

Johnson. In patients like Mr. Johnson, with a known

pre-existing seizure disorder, the introduction of the

barbiturate to the body is even more certain and

more likely to produce a seizure in the patient. Mr.

Johnson’s seizure disorder creates a unique and

substantially important risk that is significantly

A76

increased when exposed to any drug that promotes

seizures. Mr. Johnson’s seizures threshold is

substantially lower than the general population and

any further lowering of that threshold will increase

the likelihood of a seizure with a very high degree of

probability. Further, pentobarbital lacks the capacity

to reduce pain and is known to exaggerate pain or

make it worse. Thus, the drugs used by the state of

Missouri to execute prisoners has the unique

capacity, in this case, to substantially increase the

likelihood of a severely painful execution of Mr.

Johnson. (Ex. 2 at ¶ 15).

52.

Dr. Zivot also opines that risk of a

pentobarbital seizure in the case of Mr. Johnson

cannot be dismissed because Mr. Johnson has a preexisting seizure disorder. Due to the unique medical

condition of Mr. Johnson, the use of pentobarbital in

a person with a pre-existing seizure disorder

increases the likelihood of a resulting seizure to a

very high degree of probability. (Ex. 2 at ¶ 10, 12,

14).

Mr. Johnson’s Claims are Different from

Prior Lethal Injection Litigation

52.

Mr. Johnson brings this lawsuit as a single

plaintiff based on his unique medical condition and

the substantial and unjustifiable risks associated

with the administration of lethal injection drugs.

[p. 14]53. Mr. Johnson’s claims are different and

distinct from those claims raised in the case of Zink

v. Lombardi, Case No. 2:12-CV-4209 (W.D. Mo.).

54.

Although the source of the drugs used in

Missouri’s lethal injection protocol are unknown

A77

(whether manufactured in a controlled laboratory

setting as authorized by the United States

government or obtained through a compounding

pharmacy), the use of the lethal injection drugs used

by the Department of Corrections under its current

protocol create a substantial and unjustifiable risk

that Mr. Johnson will suffer a severely painful

execution by the triggering of violent and

uncontrollable seizures and convulsions, which

constitutes cruel and unusual punishment in

violation of the Eighth Amendment to the United

States Constitution.

Alternative Method of Execution that

Alleviates Risks

55.

The United States Supreme Court in

Glossip v. Gross, 135 S. Ct. 2726 (2015), requires

that a feasible, alternative method of execution be

alleged by an inmate who challenges an execution

method. The prisoner must identify an alternative

that is feasible, readily implemented, and in fact

significantly reduces a substantial risk of pain.

56.

The only other method of execution

currently recognized as an alternative method by

Missouri law is execution by lethal gas. Mo. Rev.

Stat. § 546.720.1. The specific type of lethal gas is

not further defined by the Missouri statute. The

Missouri Department of Corrections thus has

discretion to determine which method of lethal gas

could be used under this statutorily-recognized

alternative. Missouri law grants specific powers to

the director of the Missouri Department of

Corrections to provide a suitable [p. 15] and efficient

room or place and “to obtain the necessary

A78

appliances” for carrying out and an execution by

lethal gas. Mo. Rev. Stat. § 546.720.1.

57.

The administration of lethal gas can be

performed in several different forms that would

accommodate the existing Missouri statute.

Recently, the State of Oklahoma passed legislation

adopting the use of nitrogen gas which can induce

hypoxia as a method of execution. According to the

study commissioned by lawmakers in the State of

Oklahoma, nitrogen-induced hypoxia would provide

a safe, inexpensive and readily available alternative

to controlled substance lethal injection. A copy of the

Oklahoma study is attached hereto as Exhibit 3.

58.

Nitrogen-induced hypoxia would be a

feasible method of execution for the State of Missouri

because execution by lethal gas is already authorized

by Missouri statute. Nitrogen-induced hypoxia is

also a feasible method of execution that can be

readily implemented in that the tools necessary to

perform nitrogen-induced hypoxia are easily

acquired in the open market.

The primary

ingredient is nitrogen gas which is readily available

through multiple sources in the United States.

Nitrogen can be obtained without the need for a

license. For example, nitrogen is used in welding,

hospital and medical facilities and cooking. The

nitrogen gas can be administered to the inmate

through several different feasible and readily

implementable methods, including the use of a hood,

a mask or some other type of medically enclosed

device to be placed over the mouth or head of the

inmate. The use of a nitrogen gas method of

execution would not require a gas chamber or the

construction of particular type of facility.

The

nitrogen gas procedure could be administered in the

A79

same room or facility now utilized by the [p. 16]

Department of Corrections for lethal injection. Thus,

the use of a nitrogen gas method of execution is

feasible and readily implementable. The use of

nitrogen gas is a known and available alternative

method of execution.

59.

An execution by lethal gas would

significantly reduce the substantial and unjustifiable

risk of severe pain that currently exists with

Missouri’s current lethal injection method, as applied

to Mr. Johnson, in that the use of lethal gas would

not trigger the uncontrollable seizures and

convulsions that would likely be triggered by the

administration of the current drugs used in

Missouri’s lethal injection protocol. The available

literature regarding the nitrogen gas method of

execution strongly suggests that the subject will

have no allergic reaction to the gas, will experience a

loss of consciousness, and will suffer no pain. The

basis of this analysis is that nitrogen gas is a

commonly occurring gas that is ingested by humans

without medical complication.

CLAIM FOR RELIEF

Count I: Infliction of Cruel and Unusual

Punishment

60.

Plaintiff realleges and incorporates by

reference the averments set forth in paragraphs 1

through 59 above as though fully stated herein.

61.

Execution by lethal injection poses unique

and specific risks to Mr. Johnson due to his medical

condition.

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62.

There is a substantial and unjustifiable

risk that the Defendants’ use of lethal injection drugs

to Mr. Johnson will trigger severe and uncontrollable

seizures and convulsions due to his brain defect and

unique medical condition that will be severely

painful and will cause needless suffering.

[p. 17]63. There is a substantial and unjustifiable

risk that executing Mr. Johnson by lethal injection

will result in severe pain. The use of Missouri’s

current lethal injection protocol is sure or very likely

to cause serious and needless pain and suffering by

triggering uncontrollable and violent seizures and

convulsions.

64.

The Plaintiff has a life and liberty interest

under the Due Process Clause of the Fourteenth

Amendment in not being executed by the State in

violation of the Cruel and Unusual Clause of the

Eighth Amendment to the United States

Constitution.

65.

The Defendants’ intended actions as set

forth in this Complaint violate the Cruel and

Unusual Clause of the Eighth Amendment to the

United States Constitution, as applied to the States

by the Fourteenth Amendment and enforceable

through 42 U.S.C. § 1983.

66.

If not enjoined by the Court, the

Defendants and their agents, representatives and

employees will violate Plaintiff’s right to be free from

cruel and unusual punishment as guaranteed by the

Eighth and Fourteenth Amendments to the United

States Constitution. This course of conduct will

cause Plaintiff to suffer irreparable injury. Plaintiff

does not have a plain, speedy, and adequate remedy

A81

at law for such an injury. Accordingly, injunctive

relief pursuant to 42 U.S.C. § 1983 and other

authority is proper.

67.

An actual and substantial controversy

exists between Plaintiff and Defendants as to their

respective legal rights and duties. Plaintiff contends

that as applied to him, the lethal injection protocol

violates his rights as guaranteed by the Eighth and

Fourteenth Amendments to the United States

Constitution. It is anticipated that [p. 18]

Defendants will contend otherwise. Accordingly,

declaratory relief pursuant to 28 U.S.C. § 2201 is

proper.

68.

In adherence to the pleading requirements

set forth in Glossip, Mr. Johnson specifically alleges

that lethal gas is a feasible and available alternative

method under Missouri law that is readily

implementable and will significantly reduce the risk

of severe pain and a prolonged and ineffective

execution.

Prayer for Relief

69.

Plaintiff prays for this Court to issue

appropriate declaratory relief regarding the

unconstitutional acts and practices of Defendants as

applied to Plaintiff.

70.

Plaintiff also prays for appropriate

permanent equitable relief against all Defendants

that permanently enjoins them from conducting an

execution by lethal injection with respect to this

individual Plaintiff.

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71.

Mr. Johnson also seeks this Court’s order

under 42 U.S.C. § 1988 awarding him reasonable

attorneys fees.

WHEREFORE, based on the foregoing, Plaintiff

Ernest Johnson prays for this Court’s orders and

judgments as set for above.

[p. 19]

Respectfully submitted,

GADDY WEIS LLC

BY:

/s/ Jeremy S. Weis

W. BRIAN GADDY #42701

JEREMY S. WEIS #51514

600 Broadway Blvd, Ste. 670

Kansas City, MO 64105

Tel: (816) 221-8989

Fax: (816) 945-6340

Email: jweis@gaddyweis.com

Counsel for Plaintiff

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on

October 21, 2016, a true and correct copy of the

foregoing was electronically filed using the CM/ECF

system, which sent notice of the filing to all counsel

of record, including the following:

Gregory Goodwin

Missouri Attorney General’s Office

PO Box 899

Jefferson City, MO 65102

Counsel for Defendants

/s/ Jeremy S. Weis

Counsel for Plaintiff Johnson

A83

AMENDED AFFIDAVIDIT OF JOEL ZIVOT,

M.D., FRCP (C)

State of Georgia )

)

County of Dekalb )

I, Joel Zivot, being of sound mind and lawful

age, hereby state under penalty of perjury as

follows:

1. I am an associate professor and senior

member of the Departments of Anesthesiology

and Surgery, Emory University of Medicine, in

Atlanta, Georgia. I hold board certification in

Anesthesiology from the Royal College of

Physicians and Surgeons of Canada and the

American Board of Anesthesiology. I am board

certified in Critical Care Medicine from the

American Board of Anesthesiology.

2. I have practiced anesthesiology and critical

care medicine for 20 years and in that capacity, I

have personally performed or supervised the care

of over 40,000 patients.

3. I hold an active medical license from the

states of Georgia, and have held unrestricted

medical licenses in Ohio, the District of

Columbia, Michigan, and the provinces of

Ontario and Manitoba. I hold a license to

prescribe narcotics and other controlled

substances from the US Drug Enforcement

Administration (DEA).

A84

4. I have been consulting with attorneys

representing Mr. Ernest Johnson, a death row

prisoner in the State of Missouri regarding Mr.

Johnson’s medical condition and the risks

attendant to executing him by lethal injection.

5. On August 14, 2015, I travelled to Potosi

Correction Center to examine Mr. Johnson. On

examination, I found the following. He complains

of recurring throbbing pain on the right side of

his head that he rates as a 7/10. This pain is

worse when standing and better when lying

down. He has balance problems and complains of

weakness in the right [p. 2] leg. He suffers from

intermittent chest pain that occurs weekly and

lasts for 5-10 minutes at a time. He describes a

heartburn sensation that occurs with regularity.

Noteworthy on physical exam is a large scar on

his head from prior cranial surgery in an

attempt to remove a meningioma. Cranial nerves

II-XII where intact and his blood pressure was

130/80 in the left arm and 140/80 in the right

arm. His oxygen saturation was 98% on room

air. His right leg was weaker than his left leg

and he had hyper-reflexia of the deep tendon

reflexes of the right leg.

6. I reviewed the records from Vista Imaging

of Jefferson County dated 4/18/2011 and

7/9/2015. I reviewed the brain MRI images from

those dates as well. I include 2 images with this

report that require further explanation. The

following image is a sagittal view (the plane that

divides the body into left and right halves). This

image shows 2 significant findings. The white

line showing the edge of the skull at the top of

the image has a missing piece that appears

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black. This indicates that he has a hole in the top

of his skull. Directly beneath the hole is a black

region that represents missing brain tissue. I

estimate the total quantity of missing brain

tissue to be 15–20%.

[p. 3]

As a comparison, I include a normal sagittal

brain image. Note that the brain tissue is

present and the skull defect is absent.

[p. 4]

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7. Mr. Johnson is missing the region of the

brain responsible for movement and sensation of

the legs. Refer to the following picture that

shows the marked area in question. The image

represents a view from the top of the brain

looking down. The blue area represents the

sensory region for the legs and the red

represents the motor region.

[p. 5]

A87

8. The region of missing brain in Mr. Johnson

corresponds to his findings of leg weakness,

imbalance and hyper-reflexia. This brain tissue

will not grow back and this weakness and

imbalance will not improve for the remainder of

his life.

9. During the original operation performed on

August 28th, 2008 to remove the brain tumor

that was determined to be a meningioma

according to a histology evaluation, it was noted

that all of the brain tumor could not be removed.

The first image in this report taken form the

most recent evaluation from 7/9/2015 does not

show significant change from 4/15/2011. This is

an expected finding as a brain Meningioma is

known to grow very slowly. Nevertheless, the

brain tumor remains in Mr. Johnson and would

be detectable along the edges of the missing

brain defect as seen on the first MRI image.

[p. 6] 10. Mr. Johnson is known to have a

seizure disorder (epilepsy) and this is the direct

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result of the presence and subsequent attempted

resection of his brain tumor. Scars in the brain

and missing brain defects create disrupted areas

of electrical brain activity that manifest as a

seizure. Medication is required lifelong to

suppress this electrical seizure propensity. Brain

tumor related epilepsy is known to be associated

with three factors namely tumor pathology,

tumor location, and sub-total resection. Tumor

pathology refers to the nature of the tissue

transformed to cancer. Cancer of the individual

brain cells, (neurons), or cells covering and

supporting neuron, (glia) are strongly associated

with epilepsy. Cancer arising from the covering

of the brain (meninges) produces epilepsy

commonly before surgical removal and remains

in a significant portion of those patients when

the tumor is unable to be completely resected.

Persistent epilepsy after meningioma resection

can be resistant to antiepileptic drug treatment.

Mr. Johnson will have lifelong epilepsy and

control of his seizures will likely be challenging

on an ongoing basis.

11. If Mr. Johnson should have a seizure, it

would manifest as a violent shaking of the legs

and then spread to the rest of the body and

produce unconsciousness. Seizures may be selflimiting or last for a prolonged period of time.

Outwardly, a seizure is a striking and alarming

event that is seen as total body shaking and

straining. During a seizure, it is not uncommon

for the seizing individual to involuntarily

urinate. Physically restraining a seizing

individual is very difficult and will not result in a

seizure resolution. After a seizure stops, the

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individual experiences generalized significant

muscle pain and disorientation.

12. Pentobarbital, a drug within the

Barbiturate class, is the agent that will be used

in the Missouri lethal injection protocol.

Barbiturates are a large group of drugs with a

wide spectrum of action. All Barbiturates are

derived from the parent compound [p. 7]

Barbituric Acid, an organic molecule. Relevant

properties of Barbiturates include a variety of

effects on the central nervous system that

include both excitatory and inhibitory states.

Barbiturates, as a class of drugs, have been in

decline because of concerns over accidental

overdose and other toxicities. Methohexital, a

Barbiturate and a close cousin of Pentobarbital,

is a notable exception. These two drugs share a

common

central

molecular

structure.

Electroconvulsive therapy (ECT) remains as a

treatment for intractable depression. This

method requires the producing of a seizure of

brief and controlled duration. This procedure is

repeated on at least 10 separate occasions.

Depression symptoms are seen to lessen after

the completion of this series of seizure

treatments. Brief unconsciousness is necessary

as the seizure is painful and disturbing.

Methohexital has been shown in extensive

research to intensify and prolong a seizure and is

the drug of choice for ECT procedures.

Individuals that seek ECT treatment do not have

a seizure disorder necessarily as a pre-existing

condition. Methohexital, and other Barbiturates,

have been shown to produce seizures in

individuals without an underlying seizure

disorder. In individuals with pre-existing

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epilepsy, the production of a seizure is even more

certain and more likely to occur when the brain

is exposed to seizure producing drugs. Mr.

Johnson’s epilepsy creates a unique and

substantially important risk when exposed to

anything that promotes seizures. Mr. Johnson’s

seizure threshold is substantially lower than the

general population and any further lowering of

that threshold will increase the likelihood of a

seizure with a very high degree of probability.

Pentobarbital,

structurally

Methohexital, is such a seizure-producing

compound.

[p. 8] 13. In the setting of lethal injection, Mr.

Johnson will be physically restrained on a

gurney. When Mr. Johnson has a seizure, it will

be observed as a violent struggle against his

restraints; he will likely urinate as well, and he

will suffer extreme pain.

14. As a result of Mr. Johnson’s brain

tumor, brain defect, and brain scar, a substantial

risk of serious harm will occur during his

execution as a result of a violent seizure that is

induced by Pentobarbital injection. Generalized

seizures, such as the one that would occur in Mr.

Johnson, are severely painful. The Missouri

lethal injection protocol as imagined, makes no

direct claim on the subject of pain reduction as a

consequence

Pentobarbital

injection.

Barbiturates produce differing effects on the

central nervous system. Within medical practice,

Barbiturates, including Pentobarbital, are never

prescribed for the purpose of pain reduction

(analgesia). It is a false claim to suggest that

Pentobarbital would cause a painless death

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based on outward appearances during execution.

What is known is that when Barbiturates have

been used in lower dosages, individuals suffering

from concomitant pain report an ant-algesic

effect. That is, the Barbiturate, instead of

producing analgesia, actually exaggerates pain.

As seizures are known to be painful and are

observed as such by others, Pentobarbital

induced seizures will be more painful than

seizures from other causes including those that

would otherwise occur in Mr. Johnson as a result

of his underlying epilepsy.

15. It is erroneous to dismiss the risk of

Pentobarbital induced seizures in the case of

Ernest Johnson by claiming that Mr. Johnson

may have a seizure at the time of his execution

as a function of a baseline seizure disorder. The

Missouri execution protocol will increase the

likelihood of a seizure with a very high degree of

probability.

16. Based on the above findings, I am of the

opinion that Mr. Johnson faces a significant

medical risk for a serious seizure as the direct

result of the combination of the [p. 9] Missouri

lethal injection protocol and Mr. Johnson’s

permanent and disabling neurologic disease.

FURTHER AFFIANT SAYETH NOT.

I swear or affirm that the foregoing statements

are true and accurate.

/s/Joel Zivot

Joel Zivot, MD, FRCP(C)

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Subscribed and sworn to before me on this 20

day of October 2016.

/s/ Lesley Citizen

Notary Public

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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.