Johnson v. Lombardi
2015 U.S. App. LEXIS 19419
| 8th Cir. | 2015Background
- Ernest L. Johnson, a death-row inmate, underwent a 2008 craniotomy that left residual tumor, brain scarring, and a history of seizures.
- Missouri schedules Johnson’s execution by pentobarbital; Johnson alleges his condition makes lethal injection likely to provoke a seizure and severe pain.
- Johnson sued under 42 U.S.C. § 1983 seeking to enjoin use of Missouri’s lethal-injection protocol as applied to him and identified lethal gas as a statutory alternative.
- The district court denied temporary injunctive relief and dismissed the complaint under Rule 12(b)(6) for failure to plausibly plead a feasible, readily implementable alternative.
- Johnson moved for a stay of execution pending appeal; the court of appeals considered whether he showed a significant possibility of success on the merits and a viable alternative method.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Missouri’s pentobarbital protocol, as applied to Johnson, violates the Eighth Amendment | Johnson: his seizure-prone condition makes pentobarbital likely to induce a seizure causing severe pain, creating a substantial risk of serious harm | State: record does not show a risk "sure or very likely" to cause severe pain; evidence is speculative | Denied stay — Johnson failed to show a significant possibility of success because allegations and affidavit were equivocal and speculative |
| Whether Johnson identified a feasible, readily implementable alternative that significantly reduces risk | Johnson: lethal gas is legally available in Missouri and is a viable alternative | State: Johnson offered no factual showing that lethal gas is feasible or would significantly reduce the risk | Denied stay — Johnson did not plead facts showing lethal gas is feasible or would materially reduce risk |
| Standard for obtaining a stay of execution pending appeal based on method-of-execution claim | Johnson: met the requirements by alleging risk and proposing an alternative | State: stay is an equitable remedy requiring strong showing; must show significant possibility of success on the merits | Court applied Hill/Mazurek/Glossip standards and held Johnson did not meet the required showing |
| Sufficiency of expert affidavit to establish substantial risk of severe harm | Johnson: Dr. Zivot’s affidavit shows pentobarbital may induce seizures and thus risk severe pain | State: affidavit is equivocal and lacks a clear showing that severe pain is "sure or very likely" | Denied stay — affidavit’s tentative language insufficient under Glossip/Baze standard |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading must contain plausible factual allegations to survive dismissal)
- Hill v. McDonough, 547 U.S. 573 (2006) (stay of execution is equitable and requires showing significant possibility of success on the merits)
- Mazurek v. Armstrong, 520 U.S. 968 (1997) (movant must present evidence showing a significant possibility of success)
- Baze v. Rees, 553 U.S. 35 (2008) (method-of-execution claims require showing a risk that is sure or very likely to cause severe pain and a feasible, readily implemented alternative)
- Clayton v. Lombardi, 780 F.3d 900 (8th Cir. 2015) (applicable standard for § 1983 challenge to execution method)
- Zink v. Lombardi, 783 F.3d 1089 (8th Cir. 2015) (legal conclusions and threadbare recitals are insufficient to defeat dismissal)