Bucklew v. Lombardi

• Decision Date: 06 March 2015
• Docket Number: No. 14–2163.,14–2163.
• Citation: Bucklew v. Lombardi, 783 F.3d 1120 (8th Cir. 2015)
• Parties: Russell BUCKLEW, Plaintiff–Appellant v. George A. LOMBARDI, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

783 F.3d 1120

Russell BUCKLEW, Plaintiff–Appellant

v.George A. LOMBARDI, et al., Defendants–Appellees.

No. 14–2163.

United States Court of Appeals, Eighth Circuit.

Submitted: Sept. 9, 2014.

Filed: March 6, 2015.

Cheryl A. Pilate, Morgan Pilate LLC, Kansas City, MO, argued (Lindsay J. Runnels, Kristen E. Swann, on the brief), for appellant.

James B. Farnsworth, Asst. Atty. Gen., Jefferson City, MO, argued (Chris Koster, Atty. Gen., Michael J. Spillane, Asst. Atty. Gen., on the brief), for appellees.

Before RILEY, Chief Judge, WOLLMAN, LOKEN, MURPHY, BYE, SMITH, COLLOTON, GRUENDER, SHEPHERD, and KELLY, Circuit Judges, En Banc.

Opinion

LOKEN, Circuit Judge.

Russell Bucklew was convicted in state court of murder, kidnapping, and rape and sentenced to death.After Missouri courts denied post-conviction relief, we affirmed the district court's denial of Bucklew's petition for a federal writ of habeas corpus.

Bucklew v. Luebbers,436 F.3d 1010, 1013–15(8th Cir.2006).This appeal concerns his § 1983 challenge to Missouri's lethal injection method of execution.

I.

On April 9, 2014, the Supreme Court of Missouri issued a writ of execution, setting Bucklew's execution date as May 21, 2014.At that time, Bucklew was a plaintiff in a pending § 1983 action that included a facial Eighth Amendment challenge to Missouri's method of execution.The district court tentatively dismissed that action on May 2.Zink v. Lombardi,No. 12–04209(W.D.Mo.May 2, 2014).Bucklew filed this § 1983 action on May 9, primarily asserting that the method of lethal injection by which Missouri plans to execute him would violate his Eighth Amendment right to be free of cruel and unusual punishment because of the unique risk that his serious medical condition, called cavernous hemangioma, will result in excruciating pain.He also sought a preliminary injunction and a stay of execution.

On May 16, the district court entered a final order dismissing the complaint in Zink.Plaintiffs including Bucklew appealed.On May 19, the district court entered the Order being appealed in this action, denying Bucklew's motion for a stay of execution and an injunction and dismissing the Eighth Amendment claim, sua sponte.Bucklew v. Lombardi,No. 14–8000, 2014 WL 2736014(W.D.Mo.May 19, 2014).Bucklew appealed, raising Eighth Amendment and due process issues, and sought a stay of the May 21 execution.¹A divided panel of this court granted a stay.Bucklew v. Lombardi,565 Fed.Appx. 562(8th Cir.2014).The court en banc vacated the panel's stay and denied a stay of execution.Bucklew then applied to the Supreme Court for a stay of execution.On May 21, the Supreme Court issued an amended order:

The application for stay of execution of sentence of death ... is treated as an application for stay pending appeal in the Eighth Circuit.The application is granted pending the disposition of petitioner's appeal.We leave for further consideration in the lower courts whether an evidentiary hearing is necessary.

After the Supreme Court granted a stay pending appeal, we granted initial en banc review of Bucklew's appeal and the appeal in Zink and scheduled both cases for argument on September 9.After the oral arguments, we concluded that Bucklew's “as applied”Eighth Amendment claim warrants a separate opinion.His due process claim is not materially different than the due process claim raised in Zink and will be resolved in our opinion in that case.

II.

In resolving an earlier appeal in Zink,we applied the Supreme Court's plurality opinion in Baze v. Rees,553 U.S. 35, 50, 128 S.Ct. 1520, 170 L.Ed.2d 420(2008), and ruled that, to state an Eighth Amendment method-of-execution claim, a plaintiff must plausibly allege a substantial risk of severe pain, and “a feasible and more humane alternative method of execution, or a purposeful design by the State to inflict unnecessary pain.”In re Lombardi,741 F.3d 888, 895–96(8th Cir.)(en banc), reh'g denied,741 F.3d 903(8th Cir.), cert. denied,––– U.S. ––––, 134 S.Ct. 1790, 188 L.Ed.2d 760(2014).When the Zinkplaintiffs subsequently declined to amend their complaint to allege a more humane alternative, the district court dismissed their facial Eighth Amendment challenge to Missouri's lethal injection protocol.That was the primary focus of plaintiffs' Eighth Amendment appeal in Zink.

In the Order being appealed, after denying Bucklew a preliminary injunction and stay of execution, the district court dismissed the complaint.The court first concluded that the expert affidavits Bucklew submitted in support of his motion for stay of execution to show a substantial likelihood of needless pain “do not contain the specificity necessary to prevail on an Eighth Amendment claim.”That was a merits analysis appropriate in ruling on a motion for summary judgment, not an analysis of whether the complaint plausibly pleaded an Eighth Amendment claim under Baze and Lombardi.However, the court went on to conclude that the complaint must be dismissed because Bucklew had not alleged that a “feasible and readily available alternative” method of execution exists, and because plaintiffs in Zink, including Bucklew, had declined to amend their complaint to allege such an alternative.That was a properly focused Rule 12 analysis of the pleading.

On appeal, Bucklew argues, like appellants in Zink, that our decision in Lombardi misinterpreted the Supreme Court's decision in Baze.We will resolve that issue in our separate en banc opinion in Zink.But Bucklew primarily argues that our rule in Lombardi does not apply to his separate § 1983 action, or alternatively that he meets the requirements of that rule, because he has adequately alleged that Missouri's method of execution if applied to him would, because of his unique medical condition, violate the Eighth Amendment standard—a “substantial risk of serious harm,”Baze,553 U.S. at 50, 128 S.Ct. 1520(plurality opinion)—and a readily available alternative that would significantly reduce the risk.

Between our decision in Lombardi on January 24, 2014, and the order staying Bucklew's execution pending this appeal, the Supreme Court denied last minute stays of execution to four Zinkplaintiffs, most of whom argued that our decision in Lombardi misconstrued Baze and therefore warranted stays of execution.The Supreme Court did not grant Bucklew a stay of execution, but it did grant a stay pending appeal, which had the same immediate effect.The Court's decision to grant a stay pending appeal reflected its determination that Bucklew had shown “a significant possibility of success on the merits” of his appeal from the district court's dismissal of his complaint.Hill v. McDonough,547 U.S. 573, 584, 126 S.Ct. 2096, 165 L.Ed.2d 44(2006).Consideration of why the Court concluded that Bucklew's challenge to Missouri's lethal injection method of execution might be so significantly different requires a close look at the record on appeal.

III.

We first quote portions of our prior panel opinion describing the allegations in Bucklew's complaint and the opinions of his medical experts regarding the medical condition on which his as-applied challenge is based:

[W]e set forth verbatim portions of the allegations from Bucklew's complaint regarding his medical condition:

26.Mr. Bucklew has suffered from the symptoms of congenital cavernous hemangioma his entire life, including frequent hemorrhaging through his facial orifices, disturbances to his vision and hearing, pain and pressure in his head, constant headaches, dizziness, and episodes of loss of consciousness.He frequently bleeds through his mouth, nose and ears, and has sometimes bled even through his eyes.

27.The hemangiomas —which are clumps of weak, malformed vessels—fill Mr. Bucklew's face, head, neck and throat, displacing healthy tissue and stealing blood flow from normal adjacent tissues, depriving those tissues of necessary oxygen.

28.The hemangiomas are vascular tumors, and it is in the nature of such tumors to continuously expand.Although the tumors are classified as benign tumors, their growth is locally invasive and destructive.

29.Over the years, doctors have attempted treatment on many occasions, only to conclude that the available treatments—chemotherapy, sclerotherapy, radiation therapy and surgery—hold no appreciable chance of success.

30.In 1991, a specialist who examined Mr. Bucklew and treated his hemangioma for many years noted that any attempt to remove the vascular tumor “would require extensive surgery which would be mutilating and very risky as far as blood loss.”

31.Over the years, attempts at sclerotherapy, chemotherapy and radiation therapy all failed.An April 2012 report notes the minimal success of prior therapies and states: “The large size makes the hemangioma not amenable to sclerotherapy.”The report also notes that surgery would result in “large concomitant disability and disfiguration.”

32.Doctors have described the hemangiomas as “very massive,”“extensive” and a “large complex right facial mass.”In March 2003, a doctor who examined Mr. Bucklew wanted him examined immediately by a specialist because of progression of the vascular tumor, which the doctor believed “could be potentially fatal to the patient.”In June 2010, an imaging report stated that Mr. Bucklew's airway was “severely compromised.”A July 2011 medical report noted there was “difficulty [with] bleeding management.”Two months later, another doctor noted the alarming expansion of the lesion, stating it encompassed “the entire soft palate and uvula, which are impossible to visualize due to the expansion of the lesion.”

33.Throughout the records, doctors employed or contracted with by the State of Missouri repeatedly warn of the expansion of the vascular tumor, stating in September 2011“this has been present for 20 plus years, but has increasingly grown larger and larger.”

34.The possibility of another attempt at treatment was dismissed in April 2011, when Mr. Bucklew's doctor

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