Johnson v. Precythe

• Decision Date: 27 August 2018
• Docket Number: No. 17-2222,17-2222
• Parties: Ernest Lee JOHNSON, Plaintiff - Appellant v. Anne L. PRECYTHE; Alana Boyles; Stanley Payne , Defendants - Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

901 F.3d 973

Ernest Lee JOHNSON, Plaintiff - Appellant
v.
Anne L. PRECYTHE; Alana Boyles; Stanley Payne ^* , Defendants - Appellees.

No. 17-2222

United States Court of Appeals, Eighth Circuit.

Submitted: May 16, 2018
Filed: August 27, 2018
Rehearing and Rehearing En Banc Denied October 2, 2018^**

Jeremy Sean Weis, Asst. Fed. Public Defender, Kansas City, MO, argued (W. Brian Gaddy, Gaddy Law LLC, Kansas City, MO, on the brief), for appellant.

Gregory Michael Goodwin, Asst. Atty. Gen., Jefferson City, MO, argued (Joshua D. (Josh) Hawley, Atty. Gen., on the brief), for appellees.

Before SMITH, Chief Judge, BEAM and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

Ernest Johnson, a prisoner sentenced to death in Missouri, appeals the dismissal of his action challenging the constitutionality

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of the State's method of execution as applied to him. The district court dismissed Johnson's second amended complaint for failure to state a claim. We conclude that Johnson pleaded a plausible claim for relief under the Eighth Amendment, so we reverse and remand for further proceedings.

I.

Johnson was convicted of three counts of first-degree murder in Missouri state court and sentenced to death. See State v. Johnson , 244 S.W.3d 144, 149 (Mo. 2008). He filed this action against Missouri officials in October 2015, approximately two weeks before a scheduled execution on November 3, 2015. Johnson alleged that the State's method of execution—lethal injection with pentobarbital—violates the Eighth Amendment's proscription on cruel and unusual punishment, because there is "a substantial and unjustifiable risk" that a pentobarbital injection will "trigger severe and uncontrollable seizures and convulsions due to his brain defect and unique medical condition."

The district court granted the State's motion to dismiss the complaint for failure to state a claim. See Fed. R. Civ. P. 12(b)(6). Applying the Eighth Amendment standard from Glossip v. Gross , ––– U.S. ––––, 135 S.Ct. 2726, 2737, 192 L.Ed.2d 761 (2015), the court concluded that Johnson had not identified a feasible, readily implementable alternative method of execution that would significantly reduce a substantial risk of severe pain. The court dismissed the complaint without prejudice, stating that Johnson was free to amend his complaint to remedy its deficiencies. Due to Johnson's imminent execution date, however, the court stated that it was certifying the dismissal order for interlocutory appeal under Federal Rule of Civil Procedure 54(b).

Johnson moved this court to stay his execution pending appeal. This court denied a stay after concluding that Johnson failed to demonstrate a significant possibility of success on either element of his Eighth Amendment claim. Johnson v. Lombardi , 809 F.3d 388 (8th Cir. 2015) (per curiam). The Supreme Court, however, granted a stay pending appeal in the Eighth Circuit. Johnson v. Lombardi , ––– U.S. ––––, 136 S.Ct. 443, 193 L.Ed.2d 344 (2015) (per curiam). The Court observed that a supporting affidavit by a medical expert stated that "[a]s a result of Mr. Johnson's brain tumor, brain defect, and brain scar, a substantial risk of serious harm will occur during his execution as a result of a violent seizure that may be induced by [the] Pentobarbital injection." Id. at 443 (alterations in original).

As we observed in Bucklew v. Lombardi , 783 F.3d 1120 (8th Cir. 2015) (en banc), "[t]he Court's decision to grant a stay pending appeal reflected its determination that [the movant] had shown 'a significant possibility of success on the merits' of his appeal from the district court's dismissal of his complaint." Id. at 1123-24 (quoting Hill v. McDonough , 547 U.S. 573, 584, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006) ). In this case, however, we subsequently dismissed Johnson's appeal for lack of jurisdiction, and did not consider the merits of his complaint at that time. Johnson v. Lombardi , 815 F.3d 451 (8th Cir. 2016). We noted that the State had not established a new execution date, and that Johnson was thus "free to move for leave to amend his complaint without the pressure of a scheduled execution." Id. at 452.

Back in the district court, Johnson amended his complaint, but the court again dismissed it without prejudice. This time, the court reasoned that Johnson's complaint failed to plead facts that established the likelihood that pentobarbital would

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cause him to have a mid-execution seizure. The court allowed that it would give Johnson one more opportunity to file an adequately pleaded complaint.

Johnson then filed a second amended complaint. As an exhibit, Johnson attached an affidavit from anesthesiologist Dr. Joel Zivot, who opined about the likelihood that Johnson would suffer a painful seizure if executed by means of pentobarbital. Johnson also attached an Oklahoma study concluding that nitrogen-induced hypoxia, an alternative to lethal injection, would be a humane method of execution.

The district court granted the State's motion to dismiss the latest complaint. The court reasoned that Johnson failed to plead adequately two elements of an Eighth Amendment claim—namely, that pentobarbital was sure or very likely to cause him to suffer severe pain, and that nitrogen-induced hypoxia was a feasible and readily implemented alternative method of execution that would significantly reduce that risk. Johnson appeals, and we review the district court's decision de novo. Zink v. Lombardi , 783 F.3d 1089, 1098 (8th Cir. 2015) (en banc) (per curiam).

II.

To survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is plausible on its face where "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged," id. , and "raise[s] a right to relief above the speculative level." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. A pleading must offer more than " 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action' " to state a plausible claim for relief. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).

At the same time, however, the rules of procedure continue to allow notice pleading through "a short and plain statement of the claim showing that the pleader is entitled to relief." Erickson v. Pardus , 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (quoting Fed. R. Civ. P. 8(a)(2) ). "Specific facts are not necessary; the statement need only 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.' " Id. (alteration in original) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). We assume in our analysis that the factual allegations in the complaint are true. Twombly , 550 U.S. at 556, 127 S.Ct. 1955.

To prove a claim challenging a method of execution under the Eighth Amendment, a prisoner must first "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 (quoting Baze v. Rees , 553 U.S. 35, 50, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) (plurality opinion) ). The risk must be "a 'substantial risk of serious harm,' an 'objectively intolerable risk of harm' that prevents prison officials from pleading that they were 'subjectively blameless for purposes of the Eighth Amendment.' " Id. (quoting Baze , 553 U.S. at 50, 128 S.Ct. 1520 ). Second, the prisoner must "identify an alternative that is 'feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain.' " Id. (alteration in original) (quoting Baze , 553 U.S. at 52, 128 S.Ct. 1520 ). A plaintiff cannot satisfy this element "merely by showing a slightly or

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marginally safer alternative." Id. (quoting Baze , 553 U.S. at 51, 128 S.Ct. 1520 ).

On the first element, Johnson alleged that he was diagnosed with an "atypical parasagittal meningiomabrain tumor." A portion of the tumor was removed during a craniotomy procedure in August 2008, but another part remains in Johnson's brain. The surgery also resulted in "scarring tissue" in Johnson's brain and a "significant brain defect." Johnson pleaded that "[t]he brain defect and the scarring tissue that resulted from the craniotomy procedure were not known until an MRI procedure was conducted in April 2011." As a result of his "brain defect, scarring, and tumor," Johnson allegedly has a seizure disorder and has suffered...