Clemons v. Crawford

• Decision Date: 10 November 2009
• Docket Number: Nos. 08-2807/08-2813/08-2894/08-2895.,s. 08-2807/08-2813/08-2894/08-2895.
• Parties: Reginald CLEMONS; Richard D. Clay; Jeffrey R. Ferguson; Roderick Nunley, Plaintiffs, Michael Anthony Taylor; Martin Link; Mark Christeson; William L. Rousan; John Charles Middleton; Russell Earl Bucklew; Earl Ringo, Jr., Intervenor Plaintiffs/Appellants, v. Larry CRAWFORD; James D. Purkett; Terry Moore, Defendants/Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

585 F.3d 1119

Reginald CLEMONS; Richard D. Clay; Jeffrey R. Ferguson; Roderick Nunley, Plaintiffs Michael Anthony Taylor; Martin Link; Mark Christeson; William L. Rousan; John Charles Middleton; Russell Earl Bucklew; Earl Ringo, Jr., Intervenor Plaintiffs/Appellants, v. Larry CRAWFORD; James D. Purkett; Terry Moore, Defendants/Appellees.

Nos. 08-2807/08-2813/08-2894/08-2895.

United States Court of Appeals, Eighth Circuit.

Submitted: February 11, 2009.

Filed: November 10, 2009.

Matthew S. Hellman, Jenner & Block LLP, Washington, DC, argued, for appellants.

James R. Layton, Asst. Atty. Gen., Jefferson City, MO, argued (Jeremiah W. (Jay) Nixon, Atty. Gen., Michael Pritchett, Stephen D. Hawke, Asst. Attys. Gen., on the brief), for appellees.

Mark J. Stien, David Elbaum, John C. Anderson, Simpson Thacher & Bartlett LLP, New York, NY, John K. Power, Husch Blackwell Sanders LLP, Kansas City, for appellant Reginald Clemons.

Elizabeth Unger Carlyle, Columbus, MS, Jennifer Herndon, Florissant, MO, for appellant Richard D. Clay.

Michael J. Gorla, St. Louis, MO, for appellant Jeffery Ferguson.

Jennifer Herndon, Florissant, MO, for appellant Roderick Nunley.

Donald B. Verrilli, Jr., Matthew S. Hellman, Ginger D. Anders, Carrie F. Apfel, Jenner & Block LLP, Washington, DC, for appellant Michael Taylor.

Christoper E. McGraugh, Leritz Plunkert & Bruning, P.C., St. Louis, MO, for appellant Martin Link.

Eric W. Butts, St. Louis, MO, for appellants Mark Christeson and William Rouson.

John W. Simon, Constitutional Advocacy, LLC, St. Louis, MO, for appellants John Charles Middleton and Russell Earl Bucklew.

Cheryl A. Pilate, Rebecca L. Kurz, Morgan Pilate LLC, Olathe, KS, Jeremy S. Weis, Berkowitz Oliver Williams Shaw & Eisenbrandt LLP, Kansas City, MO, for appellant Earl Ringo, Jr.

Before RILEY, SMITH, and SHEPHERD, Circuit Judges.

RILEY, Circuit Judge.

Eight condemned Missouri prisoners¹ appeal the dismissal of their 42 U.S.C. § 1983 action challenging the manner in which Missouri's written lethal injection protocol might be implemented in future executions. The prisoners allege the State of Missouri, through its officers Larry Crawford, James Purkett, and Terry Moore (collectively, Missouri), has a "well-documented history of employing incompetent and unqualified personnel to oversee [the] crucial element[s] of executions by lethal injection," and "refusing properly to train the individuals to whom responsibility for crucial tasks in the lethal injection process is delegated." Based on this history, the prisoners argue Missouri "will continue to employ such incompetent and unfit personnel for future executions." The prisoners contend this possibility violates the Eighth Amendment by creating a substantial risk that Missouri's written execution protocol will not be followed, resulting in the condemned prisoners being insufficiently anesthetized and suffering extreme pain before their deaths.

The district court² initially denied Missouri's motion for judgment on the pleadings, but later reconsidered sua sponte and granted the motion. In the same order, the district court denied the motions to intervene of three other condemned Missouri prisoners.³ The intervenors appeal this ruling. We affirm the district court's grant of judgment on the pleadings and its denial of the motions to intervene.

I. BACKGROUND

A. Missouri's Execution Procedure Before the Written Protocol

Before establishing a written execution protocol, Missouri used an unwritten execution procedure which called for the successive administration of three chemicals through an intravenous line (IV) placed in the femoral vein. See Taylor v. Crawford, 487 F.3d 1072, 1074 (8th Cir.2007), cert. denied, ___ U.S. ___, 128 S.Ct. 2047, 170 L.Ed.2d 793 (2008). First, 5 grams of sodium pentothal (also known as thiopental) rendered the prisoner unconscious, then 60 milligrams of pancuronium bromide paralyzed the prisoner's muscles, and finally, a 240-milliequivalent injection of potassium chloride stopped the prisoner's heart. Id.

Discovery in the Taylor litigation⁴ revealed Missouri employed a physician, John Doe I (Dr. Doe), to mix the lethal chemicals and insert the IV lines. Id. at 1075. Under Missouri's unwritten procedure, Dr. Doe believed he had "independent authority to alter the chemical doses at will based on his medical judgment, and that in fact, there were occasions when he chose to give a dose of only 2.5 grams of thiopental without notifying the director."⁵ Id. "Dr. Doe [] revealed that he has dyslexia, which causes him to transpose letters and numbers," id., and Dr. Doe also "admitted he did not keep accurate chemical logs" documenting the amount of each chemical given at an execution, id. at 1076. Dr. Doe monitored the prisoner's anesthetic depth solely by observing the prisoner's facial expression through a window which was partially obstructed by blinds. Id. at 1075. The prisoners' complaint in the instant case asserts Missouri knew Dr. Doe had "medical licensure problems and problematic malpractice history."⁶ The prisoners also assert a licensed vocational nurse, John Doe II (Nurse Doe), "was unable to tell, despite personal observation, that [Dr. Doe] consistently prepared the wrong dose of thiopental."

During the Taylor litigation, the district court determined Missouri's unwritten method of execution subjected condemned prisoners to an unconstitutional risk of pain and suffering, and ordered the State to prepare a written protocol incorporating various provisions. See Taylor v. Crawford, No. 05-4173-CV-C-FJG, 2006 WL 1779035, *8 (W.D.Mo. June 26, 2006). Missouri established a written execution protocol and, after further litigation, this court upheld the constitutionality of Missouri's written protocol. See Taylor, 487 F.3d at 1085.

B. Missouri's Written Lethal Injection Protocol

Missouri's written execution protocol requires the successive administration of the same three chemicals used under the unwritten protocol. First, a set of four syringes containing a total of 5 grams of thiopental in a 200 cc solution renders the prisoner unconscious, and is followed by a saline flush. Medical personnel then "physically examine the prisoner to confirm that he is unconscious," using "standard clinical techniques to assess consciousness, such as checking for movement, opened eyes, eyelash reflex, pupillary responses or diameters, and response to verbal commands and physical stimuli." Medical personnel then inspect the IV site. A second set of syringes containing an additional 5 grams of thiopental will be administered through a secondary IV line in the unlikely event the prisoner is still conscious after receiving the initial 5 grams. After confirming the prisoner is unconscious, 60 milligrams of pancuronium bromide in a 60 cc solution is injected, rendering the prisoner unable to move. The prisoner is then injected with another saline flush. Finally 240 milliequivalents of potassium chloride is injected to stop the prisoner's heart. After another saline flush, medical personnel monitor the electrical activity of the prisoner's heart, pronouncing death when an electrocardiogram shows all electrical activity of the prisoner's heart has ceased. If the prisoner's heart does not stop within five minutes, additional potassium chloride is injected. The proper administration of thiopental ensures the condemned prisoner will not experience any pain caused by the "potassium chloride, which indisputably will cause an excruciating burning sensation as it travels through [the condemned prisoner's] veins to induce a heart attack." Taylor, 487 F.3d at 1074.

The execution team includes medical personnel and non-medical personnel. Under the protocol, a physician, nurse, or pharmacist prepares the chemicals used at the execution. Medical personnel may not change the quantities of these chemicals without prior approval from the department director. The fifteen syringes are distinctively labeled. "Medical personnel determine the most appropriate locations for [IV] lines," and "may insert the primary IV line as a peripheral line or as a central venous line . . . provided they have appropriate training, education, and experience for that procedure." A physician, nurse, or emergency medical technician (EMT) is responsible for inserting the IV lines, inspecting the IV site, attaching the leads from the electrocardiograph to the prisoner's chest, assessing the prisoner's consciousness, monitoring the prisoner, and supervising the injection of the lethal chemicals by nonmedical members of the execution team. After the execution, medical personnel are required to sign a "Chemical Log," indicating the quantities of the chemicals used and the quantities discarded during the execution. Missouri's protocol also requires all members of the execution team to sign a form verifying the chemicals were given in the order specified by the protocol. Dr. Doe is no longer a member of Missouri's execution team. Taylor, 487 F.3d at 1077 n. 3.

II. DISCUSSION

A. Standard of Review

We review de novo a district court's grant of judgment on the pleadings, "view[ing] all facts pleaded by the nonmoving party as true and grant[ing] all reasonable inferences in favor of that party." Poehl v. Countrywide Home Loans, Inc., 528 F.3d 1093, 1096 (8th Cir.2008) (citations omitted). "A grant of judgment on the pleadings is appropriate `where no material issue of fact remains to be resolved and the movant is entitled to judgment as a matter of law.'" Id. (quoting Faibisch v. Univ. of Minn., 304 F.3d 797, 803 (8th Cir.2002)).

We review the grant of judgment on the pleadings under "the same standard used to address a motion to dismiss for failure to state a claim under [Fed. R.Civ.P.] 12(b)(6)." Ashley County, Ark. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009) (citation omitted). "[W]ell-pleaded facts, not legal theories or conclusions, determine [the] adequacy of [t]he complaint."...