3 to proceed and to order on that basis discovery of sensitive information[.]”
, 741 F.3d at 896. Specifically, the Eighth Circuit stated: Where . . . 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 . . . in
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. . . . Without a plausible allegation of a feasible and more humane alternative method of execution, or a purposeful design by the State to inflict unnecessary pain, the plaintiffs have not stated an Eighth Amendment claim based on the use of compounded pentobarbital.
at 895-96 (quotation and internal marks omitted). Similarly, the Eighth Circuit found that plaintiffs failed to properly plead their Ex Post Facto claim in the original complaint, as the punishment has remained the same and plaintiffs had fair notice of it.
at 896-97. The Eighth Circuit also concluded that the identities of the pharmacist, laboratory, and physician “are plainly not relevant” to plaintiffs’ remaining claims, as “the merits of these claims do not depend on [those identities].”
at 897. Plaintiffs petitioned the Eighth Circuit for a rehearing of this decision, which was denied.
In re Lombardi
, 741 F.3d 903 (8th Cir. 2014) (hereinafter “
”). In denying rehearing, the Eighth Circuit addressed plaintiffs’ argument that the ruling regarding the pleading standard in
conflicted with the Supreme Court’s rulings in
Baze v. Rees
, 585 U.S. 35 (2008) and
Hill v. McDonough
, 547 U.S. 573 (2006).
The Eighth Circuit reiterated the pleading standard set out in
, differentiated the facts at hand from those in
, and expressly declined to address “whether alleging that the current method of execution creates a substantial risk of harm when compared to known and viable alternatives, without specifying an alternative, would be sufficient to state a claim in light of
Cf. Ashcroft v. Iqbal,
556 U.S. 662,
Case 4:14-cv-08000-BP Document 17 Filed 05/19/14 Page 3 of 17