In re Lombardi, 13–3699.
| Decision Date | 27 January 2014 |
| Docket Number | No. 13–3699.,13–3699. |
| Citation | 741 F.3d 903 |
| Parties | In re George A. LOMBARDI, Petitioner. |
| Court | U.S. Court of Appeals — Eighth Circuit |
OPINION TEXT STARTS HERE
Michael J. Spillane, Asst. Atty. Gen., Jefferson City, MO (Chris Koster, Atty. Gen., Stephen D. Hawke, Asst. Atty. Gen., on the brief), for petitioner.
Joseph W. Luby, Death Penalty Litigation Clinic, Kansas City, MO, for respondent.
Before RILEY, Chief Judge, WOLLMAN, LOKEN, MURPHY, BYE, SMITH, COLLOTON, GRUENDER, SHEPHERD, and KELLY, Circuit Judges, En Banc.*
The respondents in this matter, plaintiffs in the underlying litigation, Zink v. Lombardi, No. 2:12–cv–04209 (W.D. Mo. filed Aug. 1, 2012), petition for rehearing of this court's decision filed January 24, 2014, and to vacate the opinion on account of mootness. For the following reasons, we deny the petition.
The respondents argue that the issues before this court were moot at the time of the opinion's issuance, because the identities of the testing laboratory and compounding pharmacy used by the State have become known through media accounts and inferences made by one of respondents' experts from other filings in the case. We do not know whether the media sources and the expert have correctly identified the pharmacy and the laboratory. The issue before this court was whether the district court properly ordered the Director to disclose in discovery the identities of the prescribing physician, the compounding pharmacy, and the testing laboratory. The respondents never withdrew their request for the disputed discovery, and there was a live controversy over whether the Director was required to provide it. The petition for writ of mandamus was therefore not moot when the opinion issued.
The respondents next contend that this court wrongly granted mandamus relief on grounds that were not presented to the district court. We believe the grounds were adequately presented. In moving to dismiss the original complaint challenging a method of execution using propofol, the Director argued that the plaintiffs failed to state a claim under the Eighth Amendment because they did not allege the existence of a feasible, readily implemented alternative that significantly reduces risk of severe pain. R. Doc. 3, at 5. The Director also urged that the plaintiffs failed to state a claim under the Ex Post Facto Clause because the governing statute grants the Director discretion to establish the method of execution, the punishment of death for capital murder had not changed, and only the mode of producing this result had changed. Id. at 11–12. After the Department of Corrections changed its execution protocol to use compounded pentobarbital, the district court granted leave to amend the complaint, rejecting the Director's argument that amendment would be futile in light of Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), and circuit precedent applying the Ex Post Facto Clause. R. Doc. 181; R. Doc. 178, at 5–6. In a hearing on the discovery dispute, the Director, while advancing primarily an argument of privilege, cited Baze and the requirement of feasible alternatives under the Eighth Amendment. R. Doc. 224, at 9–10. The plaintiffs' amended complaint challenging the new protocol presented the same legal issues under the Eighth Amendment and Ex Post Facto Clauses that were raised with the district court in the first motion to dismiss, as the plaintiffs themselves later acknowledged. R. Doc. 258, at 11, 14. We do not think the Director was required to reargue the same points in his motion for a protective order to justify raising the issues in the court of appeals.
The respondents urge that this court misread Baze v. Rees by holding that an Eighth Amendment claim challenging method of execution must allege that the risk of harm arising from the State's current lethal-injection protocol is substantial when compared to known and available alternatives. They cite the Supreme Court's statement in Hill v. McDonough, 547 U.S. 573, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006), that there is no “[s]pecific pleading requirement [ ]” that a prisoner must identify “an alternative, authorized method of execution” to proceed in a § 1983 action. Id. at 582, 126 S.Ct. 2096. In Hill, however, the plaintiff conceded that “other methods of lethal injection the Department could...
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Zink v. Lombardi
...it, and the laboratory that tests the compounded drug. In re Lombardi, 741 F.3d 888, 892 (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). This court issued a writ of mandamus vacating the district court's order......
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Wellons v. Comm'r
...and laboratory are plainly not relevant.”), cert. denied, ––– U.S. ––––, 134 S.Ct. 1790, 188 L.Ed.2d 760 (2014)and reh'g denied,741 F.3d 903 (8th Cir.2014). Moreover, Wellons has “failed to show that any ... alternative procedure or drug is ‘feasible, readily implemented, and in fact signif......
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Bucklew v. Lombardi
...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 Zink plaintiffs subsequently declined to amend their co......