Bucklew v. Precythe

• Decision Date: 06 March 2018
• Docket Number: No. 17-3052,17-3052
• Citation: 883 F.3d 1087
• Parties: Russell BUCKLEW, Plaintiff-Appellant v. Anne L. PRECYTHE, Director of the Department of Corrections, et al., Defendants-Appellees
• Court: U.S. Court of Appeals — Eighth Circuit

883 F.3d 1087

Russell BUCKLEW, Plaintiff-Appellant
v.
Anne L. PRECYTHE, Director of the Department of Corrections, et al., Defendants-Appellees

No. 17-3052

United States Court of Appeals, Eighth Circuit.

Submitted: February 2, 2018
Filed: March 6, 2018

Counsel who presented argument on behalf of the appellant was Robert N. Hochman, of Chicago, IL. The following attorney(s) appeared on the appellant brief; Cheryl Ann Pilate, of Kansas City, MO, and Raechel J. Bimmerle, of Chicago, IL.

Counsel who presented argument on behalf of the appellee was Joshua Divine, of Jefferson City, MO. The following attorney(s) appeared on the appellee brief; Michael J. Spillane, AAG, of Jefferson City, MO.

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 Michael Sanders, where she was living. Bucklew knocked and entered the trailer with a pistol in each hand when Sanders's son opened the door. Sanders took the children to the back room and grabbed a shotgun. Bucklew began shooting. Two bullets struck Sanders, one piercing his chest. Bucklew fired at Sanders's six-year-old son, but missed. As Sanders bled to death, Bucklew struck Ray in the face with a pistol, handcuffed Ray, dragged her to the stolen car, drove away, and raped Ray in the back seat of the car. He was apprehended by the highway patrol after a gunfight in which Bucklew and a trooper were wounded.

A Missouri state court jury convicted Bucklew of murder, kidnaping, and rape. The trial court sentenced Bucklew to death, as the jury had recommended. His conviction and sentence were affirmed on direct appeal. State v. Bucklew, 973 S.W.2d 83 (Mo. banc 1998). The trial court denied his petition for post-conviction relief, and the Supreme Court of Missouri again affirmed. Bucklew v. State, 38 S.W.3d 395 (Mo. banc 2001). We subsequently affirmed the district court's denial of Bucklew's petition for a federal writ of habeas corpus. Bucklew v. Luebbers, 436 F.3d 1010 (8th Cir. 2006). The Supreme Court of Missouri issued a writ of execution for May 21, 2014. Bucklew filed this action under 42 U.S.C. § 1983, alleging that execution by Missouri's lethal injection protocol, authorized by statute, would constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments as applied to him because of his unique medical condition. Bucklew appeals the district court's¹ grant of summary judgment in favor of the state defendants because Bucklew failed to present adequate evidence to establish his claim under the governing standard established by the Supreme Court in

883 F.3d 1090

Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), and Glossip v. Gross, ––– U.S. ––––, 135 S.Ct. 2726, 192 L.Ed.2d 761 (2015). Reviewing the grant of summary judgment de novo , we affirm.

I.

Missouri's method of execution is by injection of a lethal dose of the drug pentobarbital. Two days before his scheduled execution in 2014, the district court denied Bucklew's motion for a stay of execution and dismissed this as-applied action sua sponte . On appeal, a divided panel granted a stay of execution, Bucklew v. Lombardi, 565 Fed. Appx. 562 (8th Cir. 2014) ; the court en banc vacated the stay. Bucklew applied to the Supreme Court for a stay of execution, and the Court issued an Order granting his application "for stay pending appeal in the Eighth Circuit." This court, acting en banc, reversed the sua sponte dismissal of Bucklew's as-applied Eighth Amendment claim and remanded to the district court for further proceedings. Bucklew v. Lombardi, 783 F.3d 1120, 1128 (8th Cir. 2015) (" Bucklew I"). On the same day, the en banc court affirmed the district court's dismissal on the merits of a facial challenge to Missouri's lethal injection protocol filed by several inmates sentenced to death, including Bucklew. Zink v. Lombardi, 783 F.3d 1089, 1114 (8th Cir.), cert denied, ––– U.S. ––––, 135 S.Ct. 2941, 192 L.Ed.2d 976 (2015).²

Our decision in Bucklew I set forth in considerable detail the allegations in Bucklew's as-applied complaint regarding his medical condition. 783 F.3d at 1124-26. Bucklew has long suffered from a congenital condition called cavernous hemangioma, which causes clumps of weak, malformed blood vessels and tumors to grow in his face, head, neck, and throat. The large, inoperable tumors fill with blood, periodically rupture, and partially obstruct his airway. In addition, the condition affects his circulatory system, and he has compromised peripheral veins in his hands and arms. In his motion for a stay of execution in Bucklew I, Bucklew argued:

Dr. Joel Zivot, a board-certified anesthesiologist ... concluded after reviewing Mr. Bucklew's medical records that a substantial risk existed that, because of Mr. Bucklew's vascular malformation, the lethal drug will likely not circulate as intended, creating a substantial risk of a "prolonged and extremely painful execution." Dr. Zivot also concluded that a very substantial risk existed that Mr. Bucklew would hemorrhage during the execution, potentially choking on his own blood—a risk greatly heightened by Mr. Bucklew's partially obstructed airway.

* * * * *

[The Department of Corrections has advised it would not use a dye in flushing the intravenous line because Dr. Zivot warned that might cause a spike in

883 F.3d 1091

Bucklew's blood pressure.] Reactionary changes at the eleventh hour, without the guidance of imaging or tests, create a substantial risk to Mr. Bucklew, who suffers from a complex and severe medical condition that has compromised his veins .

* * * * *

The DOC seems to acknowledge they agree with Dr. Zivot that Mr. Bucklew's obstructed airway presents substantial risks of needless pain and suffering, but what they plan to do about it is a mystery. Will they execute Mr. Bucklew in a seated position? ... The DOC should be required to disclose how it plans to execute Mr. Bucklew so that this Court can properly assess whether additional risks are present. ... Until 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, 128 S.Ct. 1520. 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, 128 S.Ct. 1520. This two-part standard governs as-applied as well as facial challenges to a method of execution. See, e.g., Jones v. Kelley, 854 F.3d 1009, 1013, 1016 (8th Cir. 2017) ; Williams v. Kelley, 854 F.3d 998, 1001 (8th Cir. 2017) ; Johnson v. Lombardi, 809 F.3d 388, 390 (8th Cir. 2015) ; Bucklew I, 783 F.3d at 1123, 1127. As a panel we are bound by these controlling precedents. Bucklew argues the second Baze/ Glossip requirement of a feasible alternative method of execution that substantially reduces the risk of suffering should not apply to "an individual who is simply too sick and anomalous to execute in a constitutional manner," like those who may not be executed for mental health reasons. See, e.g., Ford v. Wainwright, 477 U.S. 399, 410, 106 S.Ct. 2595, 91 L.Ed.2d 335 (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 properly applied the Baze/ Glossip two-part standard in dismissing Bucklew's as-applied claim.

We concluded in Bucklew I, based on a record "which went well beyond the four corners of Bucklew's complaint," that the complaint's allegations, bolstered by defendants' concession "that the Department's lethal injection procedure would be changed on account of his condition by eliminating the use of methylene blue dye," sufficiently alleged the first requirement of an as-applied challenge to the method of execution—"a substantial risk of serious and imminent harm that is sure or very likely to occur." 783 F.3d at 1127. We further concluded the district...