Zink v. Lombardi

• Decision Date: 06 March 2015
• Docket Number: No. 14–2220.,14–2220.
• Parties: David ZINK, Plaintiff–Appellant, Michael S. Worthington; John E. Winfield, Plaintiffs Leon Taylor; Walter T. Storey; Earl Ringo; Roderick Nunley, Plaintiffs–Appellants, John C. Middleton, Plaintiff, Paul T. Goodwin; Andre Cole; Reginald Clemons; Cecil Clayton; Mark Christeson; Russell Bucklew; David Barnett, Plaintiffs–Appellants, Richard Strong ; Marcellus S. Williams, Intervenors, v. George A. LOMBARDI; David R. Dormire; Terry Russell; John Does, 2–40, Defendants–Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

783 F.3d 1089

David ZINK, Plaintiff–AppellantMichael S. Worthington; John E. Winfield, PlaintiffsLeon Taylor; Walter T. Storey; Earl Ringo; Roderick Nunley, Plaintiffs–AppellantsJohn C. Middleton, PlaintiffPaul T. Goodwin; Andre Cole; Reginald Clemons; Cecil Clayton; Mark Christeson; Russell Bucklew; David Barnett, Plaintiffs–AppellantsRichard Strong ; Marcellus S. Williams, Intervenors

v.George A. LOMBARDI; David R. Dormire; Terry Russell; John Does, 2–40, Defendants–Appellees.

No. 14–2220.

United States Court of Appeals, Eighth Circuit.

Submitted: Sept. 9, 2014.

Filed: March 6, 2015.

Joseph W. Luby, Death Penalty Litigation Clinic, Kansas City, MO, argued (Elizabeth Unger Carlyle, on the brief), for appellants and intervenors.

John William Simon, Constitutional Advocacy, LLC, St. Louis, MO, for appellants Russell Earl Bucklew and Earl Ringo.

Cheryl Ann Pilate, Morgan Pilate LLC, for appellant Russell Earl Bucklew.

Jennifer Herndon, Florissant, MO, for appellants Paul T. Goodwin, Roderick Nunley, Walter T. Storey, and intervenor Richard Strong.

Richard H. Sindel, Kathryn B. Parish, Sindel Sindel & Noble, P.C., Clayton, MO, for appellants David M. Barnett, Earl Ringo, and David S. Zink.

Michael J. Gorla, St. Louis, MO, for appellants Paul T. Goodwin, Roderick Nunley, and intervenor Richard Strong.

Eric W. Butts, St. Louis, MO, for appellant Mark A. Christeson.

Susan M. Hunt, Kansas City, MO, for appellant Cecil Clayton.

Lowell D. Pearson, Husch Blackwell LLP, Jefferson City, MO, for appellant Reginald Clemons.

Gary E. Brotherton, Legal Writes, LLC, Columbia, MO, for appellant Leon Taylor.

Phillip M. Horwitz, Chesterfield, MO, for appellant Mark A. Christeson.

Kevin L. Schriener, Law & Schriener, LLC, Clayton, MO, for appellant Walter T. Storey.

Jessica E. Sutton, Death Penalty Litigation Clinic, Kansas City, MO, for appellant Andre Cole.

Gino F. Battisti, Foley & Mansfield, PLLP, St. Louis, MO, for appellant Michael Worthington.

Kent E. Gipson, Kansas City, MO, for appellant Michael Worthington and intervenor Marcellus S. Williams.

Shaun J. Mackelprang, 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

PER CURIAM.¹

Several prisoners sentenced to death in Missouri appeal the district court's² dismissal of their complaint challenging the lethal-injection protocol of the Missouri Department of Corrections. The prisoners sued state officials who are charged with planning, supervising, and carrying out executions, and two independent contractors who allegedly have prescribed, produced, or tested the compounded pentobarbital used in the State's current lethal-injection protocol. They sought a declaratory judgment that the lethal-injection protocol violates the Constitution of the United States, the Missouri Constitution, several provisions of state law, and Missouri common law, and an injunction that prevents the defendants from executing them in accordance with the protocol.

I.

This litigation commenced in 2012 when the prisoners challenged what was then a new lethal-injection protocol. In prior years, Missouri's lethal-injection protocol involved the administration of three drugs: “[S]odium thiopental to anesthetize the prisoner and render him unconscious, pancuronium bromide to paralyze him and stop his breathing, and potassium chloride to stop the prisoner's heart.” Ringo v. Lombardi, 677 F.3d 793, 795 (8th Cir.2012). In May 2012, after sodium thiopental became unavailable, the State revised its protocol to use a single drug—propofol—as the lethal agent.

In June 2012, the prisoners sued in state court to challenge the new protocol. State officials removed the case to federal court and promptly moved to dismiss the petition for failure to state a claim. The district court denied the motion in part and granted it in part, ruling as relevant here that the plaintiffs had adequately pleaded that the protocol presented a risk of harm that violated the Eighth Amendment and that the prisoners were not required to plead a reasonable alternative method of execution to the use of propofol. The court also ruled that the allegedly higher risk of pain posed by the protocol, compared to the State's prior methods of execution, sufficed to state a claim of unconstitutional ex post facto punishment.

In October 2013, the State informed the district court that it had revised its protocol to use pentobarbital, rather than propofol, as the lethal agent. In late 2013, after a discovery dispute, the district court ordered the State to disclose to counsel for the prisoners the identities of the physician who prescribes the pentobarbital used in Missouri executions, the pharmacist who compounds 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 requiring disclosure. Id. at 897. We determined that the complaint then pending failed to state any claim to which the identities of those parties was relevant. Id. at 895–97.

In February 2014, the plaintiffs filed a second amended complaint. That complaint alleges ten separate claims, seven of which are at issue in this appeal: (1) that the State's use of compounded pentobarbital constitutes cruel and unusual punishment, in violation of the United States Constitution; (2) that the defendants are deliberately indifferent to the plaintiffs' medical need for their executions not to inflict gratuitous pain; (3) that the State's use of compounded pentobarbital creates a significant risk of increased punishment over previous methods and accordingly amounts to ex post facto punishment, in violation of the United States Constitution; (4) that the defendants have deprived them of due process under the United States Constitution by not providing timely and adequate notice of the lethal injection methods; (5) that the defendants have deprived them of equal protection under the United States Constitution by deviating from the execution protocol in certain instances; (6) that the defendants have violated their First Amendment rights under the United States Constitution by refusing to disclose the identities of the pharmacy that compounds the pentobarbital and its suppliers; and (7) that the defendants have violated a number of federal laws by soliciting and using the compounded pentobarbital in executions, all allegedly reviewable under Missouri's Administrative Procedure Act, Mo.Rev.Stat. § 536.150.

In May 2014, the district court granted the State's motion to dismiss the complaint. The court dismissed all claims except for that alleging “cruel and unusual punishment” in violation of the Eighth Amendment and its Missouri constitutional analog. As for the remaining claim, the court ruled that the prisoners' concession that “other methods of lethal injection ... would be constitutional” did not suffice to state a claim under the Eighth Amendment. But the court allowed the prisoners seven days to amend the claim and address that deficiency by presenting “factual allegations permitting the Court to determine whether the alleged alternative method [of execution] is reasonably available and less likely to create a substantial risk of harm.” The prisoners responded that they did not intend to plead an alternative method of execution, because they believed the law did not require them to do so. In light of that response, the district court dismissed the remaining claim and entered a final judgment. This appeal followed.

II.

The prisoners' lead argument on appeal is that they stated a claim under the Eighth Amendment that Missouri's lethal-injection protocol violates the prohibition on cruel and unusual punishment.³ As in Lombardi , our analysis must begin with a basic proposition: “[C]apital punishment is constitutional. It necessarily follows that there must be a means of carrying it out.” Baze v. Rees, 553 U.S. 35, 47, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) (plurality opinion) (internal citation omitted). Any allegation that all methods of execution are unconstitutional, therefore, does not state a plausible claim under the Eighth Amendment. Lombardi, 741 F.3d at 895.

Baze addressed an Eighth Amendment challenge to a lethal-injection protocol, and our opinion in Lombardi summarized the rule of Baze as follows:

Where, as here, there is no assertion that the State acts purposefully to inflict unnecessary pain in the execution process, the Supreme Court recognized only a limited right under the Eighth Amendment to require a State to change from one feasible method of execution to another. The controlling opinion of the Chief Justice in Baze provides that if a State refuses to adopt a readily available alternative method of execution that would significantly reduce a substantial risk of severe pain, then “a State's refusal to change its method can be viewed as ‘cruel and unusual’ under the Eighth Amendment.” 553 U.S. at 52, 128 S.Ct. 1520 (plurality opinion) (emphasis added). In sum: “A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State's lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives. ” Id. at 61, 128 S.Ct. 1520 (emphasis added).

741 F.3d at 895–96.

The district court, relying on Lombardi , concluded that the second amended complaint adequately alleged that the protocol creates a substantial risk of severe pain. The court ruled, however, that the prisoners failed to allege sufficiently the second essential element of an Eighth Amendment claim—i.e., that there exists a feasible ...