901 F.3d 973
8th Cir.2018Background
- Ernest Johnson, sentenced to death in Missouri, sued state officials asserting lethal injection with pentobarbital would likely trigger violent, painfully uncontrollable seizures because of a residual meningioma, scarring, and resulting seizure disorder.
- Johnson filed suit shortly before a scheduled execution; district court initially dismissed his complaint under Rule 12(b)(6); the Eighth Circuit and Supreme Court temporarily stayed execution during appeal based on a medical affidavit.
- Johnson amended his complaint twice and attached an affidavit from anesthesiologist Dr. Joel Zivot asserting pentobarbital would induce a generalized, severely painful seizure in Johnson, and an Oklahoma study supporting nitrogen-induced hypoxia as a humane alternative.
- The district court again dismissed the second amended complaint, finding Johnson failed to plead (1) that pentobarbital was sure or very likely to cause severe pain and (2) that nitrogen-induced hypoxia was a feasible, readily implementable alternative that would significantly reduce risk.
- On de novo review, the Eighth Circuit held Johnson’s factual allegations and the expert affidavit plausibly satisfied the Glossip/Baze pleading requirements for an as-applied Eighth Amendment challenge and that nitrogen hypoxia was plausibly pleaded as a feasible, readily implemented alternative.
- The court also rejected the State’s statute-of-limitations defense at the pleading stage, accepting Johnson’s allegation that the relevant brain condition was not discovered until an April 2011 MRI and that the complaint was timely under Missouri’s five-year limitations period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Johnson pleaded an as-applied Eighth Amendment risk from pentobarbital | Johnson: expert affidavit and medical facts show pentobarbital is likely to induce violent, severely painful seizures in him | State: allegations are speculative and do not show pentobarbital is "sure or very likely" to cause severe pain | Court: pleadings and expert affidavit suffice at Rule 12 stage to plausibly allege a substantial, imminent risk of severe pain |
| Whether nitrogen-induced hypoxia was pleaded as a feasible, readily implemented alternative that significantly reduces risk | Johnson: statute authorizes gas executions; nitrogen is readily available; delivery can use a hood/mask in existing facilities; Oklahoma study supports feasibility and humanity | State: complaint lacks technical details on how Missouri could administer nitrogen to produce a rapid, painless death; report cited undermines feasibility | Court: under notice pleading, Johnson need not provide a detailed protocol; allegations and study plausibly show nitrogen hypoxia is feasible and would reduce the particular risk to Johnson |
| Whether State unwillingness to adopt an alternative forecloses feasibility | Johnson: feasibility is an objective question; a State’s unwillingness does not make an alternative infeasible | State: Missouri’s lack of willingness indicates infeasibility | Court: State unwillingness doesn't determine constitutional feasibility; feasibility can be judicially required if alternative meets Glossip/Baze criteria |
| Whether the complaint is time-barred | Johnson: brain defect/scar causing seizures was not discovered until April 2011; suit filed within five years of discovery | State: scar tissue and risk were apparent at time of 2008 surgery; claim accrued earlier | Court: at pleading stage, reasonable inferences favor Johnson; accrual not clearly established on face of complaint, so statute-of-limitations dismissal inappropriate |
Key Cases Cited
- Glossip v. Gross, 135 S. Ct. 2726 (Eighth Amendment method-of-execution standard)
- Baze v. Rees, 553 U.S. 35 (method-of-execution alternatives requirement)
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standards for factual allegations)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility standard for complaints)
- Wallace v. Kato, 549 U.S. 384 (accrual rule for § 1983 claims)
- Bucklew v. Precythe, 883 F.3d 1087 (discussion of nitrogen hypoxia feasibility)
- McGehee v. Hutchinson, 854 F.3d 488 (evidentiary posture on nitrogen hypoxia and lack of track record)
- Zink v. Lombardi, 783 F.3d 1089 (standard of review for dismissals in execution-method challenges)