Russеll Bucklew v. Anne L. Precythe, Director of the Department of Corrections, et al.
No. 17-3052
United States Court of Appeals For the Eighth Circuit
March 6, 2018
Submitted: February 2, 2018
Filed: March 6, 2018
Before WOLLMAN, LOKEN, and COLLOTON, Circuit Judges.
LOKEN, Circuit Judge
The issue is whether the Eighth and Fourteenth Amendments, as applied, bar Missouri officials from employing a procedure that is authorized by Missouri statute to execute Russell Bucklew.
In March 2006, Bucklew stole a car; armed himself with pistols, handcuffs, and a roll of duct tape; and followed his former girlfriend, Stephanie Ray, to the home of
A Missouri state court jury convicted Bucklew of murder, kidnaping, and rape. The trial court sentenced Bucklew to death, as the jury had recommended. His conviction and sentence were affirmed on direct appeal. State v. Bucklew, 973 S.W.2d 83 (Mo. banc 1998). The trial court denied his petition for post-conviction relief, and the Supreme Court of Missouri again affirmed. Bucklew v. State, 38 S.W.3d 395 (Mo. banc 2001). We subsequently affirmed the district court‘s denial of Bucklew‘s petition for a federal writ of habeas corpus. Bucklew v. Luebbers, 436 F.3d 1010 (8th Cir. 2006). The Supreme Court of Missouri issued a writ of execution for May 21, 2014. Bucklew filed this action under
Missouri‘s method of execution is by injection of a lethal dose of the drug pentobarbital. Two days before his scheduled execution in 2014, the district court denied Bucklew‘s motion for a stay of execution and dismissed this as-applied action sua sponte. On appeal, a divided panel granted a stay of execution, Bucklew v. Lombardi, 565 Fed. Appx. 562 (8th Cir. 2014); the court en banc vacated the stay. Bucklew applied to the Supreme Court for a stay of execution, and the Court issued an Order granting his application “for stay pending appeal in the Eighth Circuit.” This court, acting en banc, reversed the sua sponte dismissal of Buсklew‘s as-applied Eighth Amendment claim and remanded to the district court for further proceedings. Bucklew v. Lombardi, 783 F.3d 1120, 1128 (8th Cir. 2015) (“Bucklew I“). On the same day, the en banc court affirmed the district court‘s dismissal on the merits of a facial challenge to Missouri‘s lethal injection protocol filed by several inmates sentenced to death, including Bucklew. Zink v. Lombardi, 783 F.3d 1089, 1114 (8th Cir. 2015), cert denied, 135 S. Ct. 2941 (2015).2
Dr. Joel Zivot, a board-certified anesthesiologist... concluded after reviewing Mr. Bucklew‘s medical records that a substantial risk existed that, because of Mr. Bucklew‘s vascular malformation, the lethal drug will likely not circulate as intended, creating a substantial risk of a “prolonged and extremely painful execution.” Dr. Zivot also concluded that a very substantial risk existed that Mr. Bucklew would hemorrhage during the execution, potentially choking on his own blood -- a risk greatly heightened by Mr. Bucklew‘s partially obstructed airway.
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[The Department of Corrections has advised it would not use a dye in flushing the intravenous line because Dr. Zivot warned that might cause a spike in Bucklew‘s blood pressure.] Reactionary changes at the eleventh hour, without the guidance of imaging or tests, create a substantial risk to Mr. Bucklew, who suffers from a complex and severe medical condition that has compromised his veins.
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The DOC seems to acknowledge they agree with Dr. Zivot that Mr. Bucklew‘s obstructed airway presents substantial risks of needless pain and suffering, but what they plan to do about it is a mystery. Will they execute Mr. Bucklew in a seated position?... The DOC should be required to disclose how it plans to execute Mr. Bucklew so that this Court can properly assess whether additional risks are present.... Until
Mr. Bucklew knows what protocol the DOC will use to kill him, and until the DOC is required to conduct the necessary imaging and testing to quantify the expansion of Mr. Bucklew‘s hemangiomas and the extent of his airway obstruction, it is not possible to execute him without substantial risk of severe pain and needless suffering.
Defendants’ Suggestions in Opposition argued that Bucklew‘s “proposed changes... with the exception of his complaint about [dye], which Missouri will not use in Bucklew‘s execution, are not really changes in the method of execution.”
Glossip and Baze established two requirements for an Eighth Amendment challenge to a method of execution. First, the challenger must “establish that the method presents a risk that is sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers.” Glossip, 135 S. Ct. at 2737 (emphasis in original), citing Baze, 553 U.S. at 50. This evidence must show that the pain and suffering being risked is severe in relation to the pain and suffering that is accepted as inherent in any method of execution. Id. at 2733. Second, the challenger must “identify an alternative that is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain.” Glossip, 135 S. Ct. at 2737, citing Baze, 553 U.S. at 52. This two-part standard governs as-applied as well as facial challenges to a method of execution. See, e.g., Jones v. Kelley, 854 F.3d 1009, 1013, 1016 (8th Cir. 2017); Williams v. Kelley, 854 F.3d 998, 1001 (8th Cir. 2017); Johnson v. Lombardi, 809 F.3d 388, 390 (8th Cir. 2015); Bucklew I, 783 F.3d at 1123, 1127. As a panel we are bound by these controlling precedents. Bucklew argues the second Baze/Glossip rеquirement of a feasible alternative method of execution that substantially reduces the risk of suffering should not apply to “an individual who is simply too sick and anomalous to execute in a constitutional manner,” like those who may not be executed for mental health reasons. See, e.g., Ford v. Wainwright, 477 U.S. 399, 410 (1986). The Supreme Court has not recognized a categorical exemption from the death penalty for individuals with physical ailments or disabilities. Thus, in the decision on appeal, the district court
We concluded in Bucklew I, based on a record “which went well beyond the four corners of Bucklew‘s complaint,” that the complaint‘s allegations, bolstered by defendants’ concession “that the Department‘s lethal injection procedure would be changed on account of his condition by eliminating the use of methylene blue dye,” sufficiently alleged the first requirement of an as-applied challenge to the method of execution -- “a substantial risk of serious and imminent harm that is sure or very likely to occur.” 783 F.3d at 1127. We further concluded the district court‘s sua sponte dismissal was premature because these detailed allegations made it inappropriate “to assume that Bucklew would decline an invitation to amend the as-applied challenge” to plausibly allege a feasible and more humane alternative method of execution, the second requirement under the Baze/Glossip standard. Id. In remanding, we directed that further proceedings “be narrowly tailored and expeditiously conducted to address only those issues that are essential to resolving” the as-applied challenge. Id. at 1128. We explained:
Bucklew‘s arguments on appeal raise an inference that he is impermissibly seeking merely to invеstigate the protocol without taking a position as to what is needed to fix it. He may not be “permitted to supervise every step of the execution process.” Rather, at the earliest possible time, he must identify a feasible, readily implemented alternative procedure that will significantly reduce a substantial risk of severe pain and that the State refuses to adopt.... Any assertion that all methods of execution are unconstitutional does not state a plausible claim under the Eighth Amendment or a cognizable claim under
§ 1983 .
Id. (quotation omitted; emphasis in original).
On remand, consistent with our directive, the district court first ordered Bucklew to file an amended complaint that adequately identified an alternative procedure. Twice, Bucklew filed amended complaints that failed to comply with this order. Given one last chance to comply or face dismissal, on Octobеr 13, 2015, Bucklew filed a Fourth Amended Complaint. As relevant here, it alleged:
106. Based on Mr. Bucklew‘s unique and severe condition, there is no way to proceed with Mr. Bucklew‘s execution under Missouri‘s lethal injection protocol without a substantial risk to Mr. Bucklew of suffering grave adverse events during the execution, including hemorrhaging, suffocating or experiencing excruciating pain.
107. Under any scenario or with any of lethal drug, execution by lethal injection poses an enormous risk that Mr. Bucklew will suffer extreme, excruciating and prolonged pain -- all accompanied by choking and struggling for air.
128. In May 2014, the DOC also proposed a second adjustment in its protocol, offering to adjust the gurney so that Mr. Bucklew is not lying completely prone.3... As a practical matter, no adjustment would likely be sufficient, as the stress of the execution may unavoidably cause Mr. Bucklew‘s hemangiomas to rupture, leading to hemorrhaging, bleeding in his throat and through his facial orifices, and coughing and choking on his own blood.
129. In order to fully evaluate and establish the risks to Mr. Bucklew from execution by lethal injection, a full and complete set of imaging studies must be conducted.
139. Mr. Bucklew is mindful of the Court‘s directive to allege a feasible, readily implemented alternative procedure.... Mr. Bucklew has complied... by researching and proposing execution by lethal gas, which is specifically authorized by Missouri law and which Missouri‘s Attorney General has stated the DOC is prepared to implement.
150. In adherence with the pleading requirements set forth in Glossip, and as stated above, Mr. Bucklew specifically alleges lethal gas as a feasible and available alternative method that will significantly reduce the risk of severe pain to Mr. Bucklew.
In other words, Bucklew took the position that no modification of Missouri‘s lethal injection method of execution could be constitutionally applied to execute Bucklew. He proposed massive discovery allegedly needed to establish the first Baze/Glossip requirement. But his legal theory is that alternative procedures such as adjusting the gurney‘s position are irrelevant because no lethal injection procedure would be constitutional, only a change to the use of lethal gas would be adequate.
Bucklew‘s as-applied claim focused on two aspects of his medical condition. First, Bucklew‘s experts initially opined that his peripheral veins are so weak that injection of a lethal dose of pentobarbital would not adequately circulate, leading to a prolonged and painful execution. The district court cоncluded that discovery and expert opinions developed on remand refuted this claim. The lethal injection protocol provides that medical personnel may insert the primary intravenous (IV) line “as a central venous line” and may dispense with a secondary peripheral IV line if “the prisoner‘s physical condition makes it unduly difficult to insert more than one IV.” Bucklew‘s expert Dr. Zivot conceded, and Defendants’ expert, Dr. Joseph Antognini, agreed, that the central femoral vein can circulate a “fair amount of fluid” without serious risk of rupture and that Bucklew‘s medical condition will not affect the flow of pentobarbital after it is injected through this vein.
According to Defendants’ expert, Dr. Antognini, pentobarbital causes death by “producing rapid, deep unconscious[ness], respiratory depression, followed by... complete absence of respiration, decreased oxygen levels, slowing of the heart, and then the heart stopping.” In contrast to Dr. Zivot, Dr. Antognini opined that pentobarbital would cause “rapid and deep unconsciousness” within 20-30 seconds of entering Bucklew‘s blood stream, rendering him insensate to bleeding and choking sensations. Dr. Antognini also challenged Dr. Zivot‘s opinion that a supine Bucklew, unable to adjust his breathing, will be aware he is choking on his own blood and in pain from the tumor blocking his airway before the pentobarbital renders him unconscious. Dr. Antognini noted that, between 2000 and 2003, Bucklew underwent general anesthesia eight timеs, at least once in a supine position. In December 2016, Bucklew lay supine for over an hour undergoing an MRI, with no more than discomfort. The MRI revealed that his tumor had slightly shrunk since 2010.
III.
To succeed in his challenge to Missouri‘s lethal injection execution protocol, Bucklew must establish both prongs of the Glossip/Baze standard. Glossip, 135 S. Ct. 2737. The district court held that Bucklew failed to establish the second prong of Glossip/Baze by showing that an alternative method of execution would “in fact significantly reduce a substantial risk of severe pain.” As noted, Bucklew argues the Glossip/Baze standard should not apply to an as-applied challenge to a method of execution, an argument our controlling precedents have rejected. He raises two additional issues on appeal.
A. Bucklew first argues the district court erred in granting summary judgment on the second Glossip/Baze requirement because he presented sufficient evidence that his proposed alternative method of execution -- death through nitrogen gas-induced hyрoxia -- “would substantially reduce his suffering.” Summary judgment is not appropriate when there are material issues of disputed fact, and the Supreme Court in Glossip made clear that this issue may require findings of fact that are reviewed for clear error. See Id. at 2739-41 (majority opinion) and 2786 (Sotomayor, J., dissenting). However, whether a method of execution “constitutes cruel and unusual punishment is a question of law.” Swindler v. Lockhart, 885 F.2d 1342, 1350 (8th Cir. 1989). Thus, unless there are material underlying issues of disputed fact, it is appropriate to resolve this ultimate issue of law by summary judgment.
Nitrogen hypoxia is an authorized method of execution under Missouri Law. See
The district court granted summary judgment based on Bucklew‘s failure to provide adequate evidence that execution by nitrogen hypoxia would substantially reduce the risk of pain or suffering. The court allowed Bucklew extensive discovery into defendants’ knowledge regarding execution by lethal gas. But Missouri‘s lack of recent experience meant that this discovery produced little relevant evidence and no evidence that the risk posed by lethal injection is substantial when compared to the risk posed by lethal gas. See Glossip, 135 S. Ct. at 2738; Johnson, 809 F.3d at 391. Bucklew‘s theory is that execution by nitrogen hypoxia would render Bucklew insensate more quickly than lethal injection and would not cause choking and bleeding in his tumor-blocked airway. But his expert, Dr. Zivot, provided no support for this theory. Dr. Zivot‘s Supplemental Expert Report explained:
[W]hile I can assess Mr. Bucklew‘s current medical status and render an expert opinion as to the documented and significant risks associated with executing Mr. Bucklew under Missouri‘s current Execution Procedure, I cannot advise counsel or the Court on how to execute Mr. Bucklew in a way that would satisfy Constitutional requirements.
Lacking affirmative comparative evidence, Bucklew relied on Dr. Antognini‘s deposition. In his Expert Report, Dr. Antognini concluded that “the use of lethal gas
Q. Why does lethal gas not hold any advantage compared to lethal injection.
A. Well... there are a lot of types of gases that could be used... [U]sing gas would not significantly lessen any suffering or be less painful. Because, again, their onset of action is going to be relatively fast, just like Pеntobarbital‘s onset -- onset of action.
Q. That‘s it? Simply because it would happen quickly?
A. Correct.
The district court concluded this opinion provided nothing to compare:
Dr. Antognini specifically stated that he believed there would be no difference in the “speed” of lethal gas as compared to pentobarbital.... In the absence of evidence contradicting Defendants’ expert and supporting Plaintiff‘s theory, there is not a triable issue.
On appeal, Bucklew argues the district court should have compared Dr. Zivot‘s opinion that lethal injection would take up to four minutes to cause Bucklew‘s brain death with Dr. Antognini‘s testimony that lethal gas would render him unconscious in the same amount of time as lethal injection, 20 to 30 seconds. But Dr. Antognini‘s comparative testimony was that both methods would result in unconsciousness in approximately the same amount of time. Bucklew offered no contrary cоmparative evidence and thus the district court correctly concluded that he failed to satisfy his burden to provide evidence “establishing a known and available alternative that would significantly reduce a substantial risk of severe pain.” McGehee v. Hutchinson, 854 F.3d 488, 493 (8th Cir. 2017).
Based on Bucklew‘s argument to the en banc court, we expected that the core of the proceedings on remand would be defining what changes defendants would make on account of Bucklew‘s medical condition and then evaluating that modified procedure under the two-part Baze/Glossip standard. On remand, Director of Corrections Ann Precythe testified that the medical members of the execution team are provided a prisoner‘s medical history in preparing for the execution. Precythe has authority to make changes in the execution protocol, such as how the primary IV line will be inserted in the central femoral vein or how the gurney will be positioned, if the team advises that changes are needed. While Bucklew sought and was denied discovery of the identities of the execution team‘s medical members, he never urged the district court to establish a suitable fact-finding procedure -- for example, by anonymous interrogatories or written deposition questions to the execution team members -- for discovery of facts needed for the DOC to define the as-applied lethal injection protocol it intends to use for Bucklew. As Bucklew did not pursue these issues, the pleadings established that defendants have proposed to reposition the gurney during Bucklew‘s deposition, and Director Precythe testified that she has authority to make this type of change in the execution protocol based on the execution team‘s advicе based on review of Bucklew‘s medical history, but the record does not
Like the district court, we conclude the summary judgment record contains no basis to conclude that Bucklew‘s risk of severe pain would be substantially reduced by use of nitrogen hypoxia instead of lethal injection as the method of execution. Evidence that “is equivocal, lacks scientific consensus and presents a paucity of reliable scientific evidence” does not establish that an execution is sure or very likely to cause serious illness and needless suffering. Williams v. Kelley, 854 F.3d at 1001 (quotation omitted). Therefore, he failed to establish the second prong of the Glossip/Baze standard.
B. Bucklew further contends the district court erred in denying his requests for discovery relating to “M2” and “M3,” two members of the lethal injection execution team. Bucklew argues he was entitled to discovery of the medical technicians’ qualifications, training, and experience because it would “illuminate the nature and extent of the risks of suffering he faces.” For example, if M3 was not qualified to safely place his IV in the central femoral vein, this would directly impact the risk of
Bucklew‘s argument proceeds from the premise that M2 and M3 may not be qualified for the positions for which they have been hired. But we will not assume that Missouri employs personnel who are incompetent or unqualified to perform their assigned duties. See Clemons v. Crawford, 585 F.3d 1119, 1128 (8th Cir. 2009). He further argues that deposition of M2 and M3 is necessary to understand how they will handle a circumstance in case something goes wrong during Bucklew‘s execution. The potentiality that something may go wrong in an execution does not give rise to an Eighth Amendment violation. Zink, 783 F.3d at 1101. “Some risk of pain is inherent in any method of execution -- no matter how humane -- if only from the prospect of error in following the required procedure.... [A]n isolated mishap alone does not give rise to an Eighth Amendment violation.” Baze, 553 U.S. at 47, 50. Thus, the district court‘s ruling was consistent with our instruction in remanding that Bucklew “may not be permitted to supervise every step of the execution process.” Bucklew I, 783 F.3d at 1128 (quotation omitted). The Baze/Glossip evaluation must be based on the as-applied pre-execution protocol, assuming that those responsible for carrying out the sentence are competent and qualified to do so, and that the procedure will go as intended.
III. Conclusion
Having thoroughly reviewed the record, we conclude that Bucklew has failed to establish that lethal injection, as applied to him, constitutes cruel and unusual punishment under the Eighth and Fourteenth Amendments. Therefore, we affirm the judgment of the district court.
Russell Bucklew alleges that the State of Missouri‘s method of execution by lethal injection violates his rights under the Eighth and Fourteenth Amendments. He seeks an injunction prohibiting an execution by that method. The district court granted summary judgment for the State, but there are genuine disputes of material fact that require findings of fact by the district court before this dispute can be resolved. I would therefore remand the case for the district court promptly to conduct further proceedings.
Bucklew‘s claim under
On the first element, Bucklew‘s theory is that he will suffer severe pain by prolonged choking or suffocation if the State executes him by lethal injection. He contends that when he lies supine on the execution gurney, tumors in his throat will block his airway unless he can “adjust” his positioning to enable breathing. Bucklew
In assessing that claim, the district court cited conflicting expert testimony from Bucklew‘s expert, Dr. Joel Zivot, and the State‘s expert, Dr. Joseph Antognini. Dr. Antognini testified that if the State proceeded by way of lethal injection using pentobarbital, then Bucklew would be unconscious within twenty to thirty seconds and incapable of experiencing pain at that point. R. Doc. 182-5, at 10, 40-41. Dr. Zivot, however, differed: “I strongly disagree with Dr. Antognini‘s repeated claim that the pentobarbital injection would result in ‘rapid unconsciousness’ and therefore Mr. Bucklew would not experience any suffocating or choking.” R. Doc. 182-1, at 147. Zivot opined that Bucklew “would likely experience unconsciousness that sets in progressively as the chemical circulates through his system,” and that “during this in-between twilight stage,” Bucklew “is likely to experience prolonged feelings of suffocation and excruciating pain.” Id.
In his deposition, Dr. Zivot opined that “there will be points,” before Bucklew dies, “where he‘s beginning to experience the effects of the pentobarbital, where his ability to control and regulate and adjust his airway will be impaired, although there will still be the experience capable of knowing that he cannot make the adjustment, and will experience it as choking.” Id. at 81. When directed to Dr. Antognini‘s opinion that Bucklew would be unaware of noxious stimuli within twenty to thirty seconds of a pentobarbital injection, Dr. Zivot observed that Antognini‘s opinion was based on a study involving dogs from fifty years ago and testified that his “number would be longer than that.” Id. at 85. When asked for his “number,” Dr. Zivot pointed to a study on lethal injections administered to horses; he said the study recorded “a range of as short as fifty-two seconds and as long as about two hundred and forty seconds before they see isoelectric EEG.” Id. at 85-86. Dr. Zivot noted that the “number” that he derived from the horse study was “more than twice as long as” the number suggested by Dr. Antognini. Id. at 86. He defined “isoelectric EEG” as
The district court observed that “[a]n execution is typically conducted with the prisoner lying on his back,” and that the record “establishes that [Bucklew] has difficulty breathing while in that position because the tumors can cause choking or an inability to breathe.” The court understood Dr. Zivot to mean that “it could be fifty-two to 240 seconds before the pentobarbital induces a state in which [Bucklew] could no longer sense that he is choking or unable to breathe.” Thus, the court concluded that “construing the Record in [Bucklew‘s] favor reveals that it could be fifty-two to 240 seconds before the pentobarbital induces a state in which [Bucklew] could no longer sense that he is choking or unable to breathe.” Again, the court reasoned that “the facts construed in [Bucklew‘s] favor would permit a factfinder to conclude that for as long as four minutes [Bucklew] could be aware that he is choking or unable to breathe but be unable to ‘adjust’ his breathing to remedy the situation.” On that basis, the court presumed for purposes of the motion for summary judgment that “there is a substantial risk that [Bucklew] will experience choking and an inability to breathe for up to four minutes.”
The State disputes that there is a genuine dispute of material fact on the first element of Bucklew‘s claim, but the district court properly concluded that findings of fact were required. Bucklew pointed to evidence from Missouri corrections officials that prisoners have always laid flat on their backs during executions by lethal injection in Missouri. R. Doc. 182-7, at 10; R. Doc. 182-9, at 1; R. Doc. 182-12, at 29, 91. One official testified that he did not know whether the gurney could be adjusted. R. Doc. 182-12, at 91. Another official believed thаt the head of the gurney “could” be raised (or that a gurney with that capability could be acquired), and that an anesthesiologist would have “the freedom” to adjust the gurney “if” he or she determined that it would be in the best medical interest of the offender to do so. R. Doc. 182-7, at 14. But the State did not present evidence about how it would position
The State argues that the district court erred in discerning a genuine dispute of material fact on the first element because Dr. Zivоt did not specify the length of the expected “twilight stage” during which Bucklew would be unable to adjust his positioning yet still sense pain. The State also complains that Dr. Zivot did not specify that Bucklew‘s pain awareness would continue for fifty-two seconds or longer until brain waves ceased. There certainly are grounds to attack the reliability and credibility of Dr. Zivot‘s opinion, including the imprecision of some of his testimony, his opposition to all forms of lethal injection, his possible misreading of the horse study on which he partially relied, and his inaccurate predictions of calamities at prior executions. But he did opine that Bucklew was likely to “experience prolonged feelings of suffocation and excruciating pain” if executed by lethal injection, R. Doc. 182-1, at 147, and that there “will be points” before Bucklew dies when his ability to regulate his airway will be impaired so that he “will experience it as choking.” Id. at
On the second element of Bucklew‘s claim, the district court concluded as a matter of law that Bucklew failed to show that his proposed alternative method of execution -- administration of nitrogen gas -- would significantly reduce the substantial risk of severe pain that the court recognized under the first element. The majority affirms the district court‘s judgment on this basis. Taking the evidence in the light most favorable to Bucklew, however, a factfinder could conclude that nitrogen gas would render Bucklew insensate more quickly than pentobarbital and would thus eliminate the risk that he would experience prolonged feelings of choking or suffocation. Dr. Antognini testified that a person who is administered nitrogen gas “would be unconscious very quickly,” and that the onset of action from lethal gas “is going to be relatively fast, just like Pentobarbital‘s onset.” R. Doc. 182-5, at 58-59 (emphasis added). Given Dr. Antognini‘s testimony that pentobarbital would render Bucklew insensate within twenty to thirty seconds, the record in the light most favorable to Bucklew supports a finding based on Antognini‘s testimony that nitrogen gas would relieve Bucklew from any pain of choking or suffocating within twenty to thirty seconds. A trier of fact may accept all, some, or none of a witness‘s testimony, United States v. Candie, 974 F.2d 61, 65 (8th Cir. 1992), and a plaintiff may rely on testimony from the defendant‘s expert to meet his burden if the testimony is advantageous to the plaintiff. See IBEW Local 98 Pension Fund v. Best Buy Co., Inc., 818 F.3d 775, 782 (8th Cir. 2016). If the factfinder accepted Dr. Zivot‘s testimony as to the effect of pentobarbital, and Dr. Antognini‘s uncontroverted testimony as to effect of nitrogen gas, then Bucklew‘s proposed alternative method would significantly reduce the substantial risk of severe pain that the district court identified in its analysis of the first element.
For these reasons, there are genuine disputes of material fact that preclude summary judgment and require findings of fact by the district court. I would
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The State contends that we should not reach the merits of Bucklew‘s claim because several procedural obstacles require dismissal of his complaint. The majority does not rely on these points, and I find them unavailing.
First, the State contends that Buсklew did not raise his present claim in his fourth amended complaint. Bucklew‘s complaint, however, does allege the essence of his current theory. The complaint asserts that the tumors in Bucklew‘s throat require “him to sleep with his upper body elevated” because if he lies flat, “the tumor then fully obstructs his airway.” Id. at 18-19. It continued: “Executions are conducted on a gurney, and the risks arising from Mr. Bucklew‘s airway are even greater if he is lying flat. Because of the hemangiomas, Mr. Bucklew is unable to sleep in a normal recumbent position because the tumors cause greater obstruction in that position.” R. Doc. 53, at 35. Bucklew further alleged that execution by lethal injection “poses an enormous risk that Mr. Bucklew will suffer extreme, excruciating and prolonged pain -- all accompanied by choking and struggling for air.” Id. at 36. The complaint was adequate under a notice pleading regime to raise a claim that the execution procedure would result in an obstructed airway and choking or suffocation.
If necessary, moreover, the district court acted within its discretion by treating the complaint as impliedly amended to include Bucklew‘s present claim. See
Second, the State argues that the five-year statute of limitations bars Bucklew‘s claim, because he was aware of his claim in 2008 and did not file his complaint until May 9, 2014. A claim under
Third, the State urges that Bucklew‘s claim is barred by res judicata or claim preclusion, because Bucklew could have litigated his as-applied challenge to the execution protocol in an earlier case styled Zink v. Lombardi, No. 12-04209-CV-C-
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For these reasons, I would reverse the judgment of the district court and remand for further proceedings to be conducted with dispatch.