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Court Order Denying Stay & Dismissing Bucklew v Lombardi

Court Order Denying Stay & Dismissing Bucklew v Lombardi

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Published by cbsradionews
Federal district court order denying stay in Bucklew case dated May 19th.
Federal district court order denying stay in Bucklew case dated May 19th.

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Published by: cbsradionews on May 20, 2014
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05/20/2014

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION
 RUSSELL BUCKLEW, ) ) Plaintiff, ) ) v. ) Case No. 14-8000-CV-W-BP ) GEORGE A. LOMBARDI,
et al.
, ) ) Defendants. )
ORDER
 This matter comes before the Court on Plaintiff Russell Bucklew’s Motion for Stay of Execution, (Doc. 6). For the reasons stated below, Bucklew’s Motion is
DENIED
 and this case is hereby
DISMISSED
.
I.
 
Background a.
 
The
 Zink
Action
Previously pending before this Court was an action brought by Missouri death row inmates, including Bucklew, challenging Missouri’s execution protocol.
See Zink v. Lombardi
,  No. 12-4209 (W.D. Mo.) (hereinafter
 Zink 
”). The procedural history of
 Zink 
 is lengthy but relevant to the instant action, so an explanation is necessary here. Plaintiffs in
 Zink 
 filed their original complaint against these same defendants in the Circuit Court of Cole County, Missouri, and defendants removed to this Court in August 2012. Shortly thereafter, defendants filed a motion to dismiss the original complaint for failure to state a claim. In the original complaint, plaintiffs alleged cruel and unusual punishment in violation of the Eighth Amendment, violations of the Supremacy Clause, enactment of an ex post facto law, and violations of the Separation of Powers doctrine. The Court denied defendants’ motion as to
Case 4:14-cv-08000-BP Document 17 Filed 05/19/14 Page 1 of 17
 
2  plaintiffs’ Eighth Amendment and Ex Post Facto claims, and granted the motion as to the Supremacy Clause and Separation of Powers claims.
See Zink 
, No. 12-4209 at Doc. 31. Plaintiffs were later granted leave to amend their pleadings. The amended complaint set forth seven counts, including claims that the execution protocol violated the Eighth Amendment and Ex Post Facto clauses.
 Id.
 at Doc. 183. In December 2013, defendants in
 Zink 
 filed a motion for protective order to prohibit discovery or disclosure of the identities of all execution team members.
See id.
 at Doc. 189. The Court ordered defendants to produce the identity of the pharmacist who compounds the  pentobarbital used in executions, the laboratory that tests the compounded drug, and the doctor who prescribes the compounded drug.
See id.
 at Docs. 203, 204. The defendants filed a petition for writ of mandamus with the Eighth Circuit. A three-judge panel granted defendants’ petition for writ of mandamus as to the identity of the prescribing physician, but denied it as to discovery of the identities of the compounding  pharmacy and testing laboratory.
See In re Lombardi
, 8th Cir. No. 13-3699, Entry ID 4109112 (Dec. 27, 2013). On a petition for rehearing, the Eighth Circuit issued an en banc opinion vacating the District Court’s Order requiring disclosure of the identities of the pharmacist who compounds the pentobarbital used in executions, the laboratory that tests the compounded drug, and the doctor who prescribes the compounded drug.
 In re George A. Lombardi
, 741 F.3d 888 (8th Cir. 2014) (hereinafter “
 Lombardi
”);
see also
 
 Zink 
, No. 12-4209, Docs. 203, 204, 205. Relying on the Supreme Court’s decision in
 Baze v. Rees
, 553 U.S. 35 (2008), the Eighth Circuit found that plaintiffs failed to state a claim under the Eighth Amendment in their original complaint because they had not pled a known and available alternative to the current execution method, and therefore, it was a “clear abuse of discretion for the district court to allow the claim
Case 4:14-cv-08000-BP Document 17 Filed 05/19/14 Page 2 of 17
 
3 to proceed and to order on that basis discovery of sensitive information[.]”
 Lombardi I 
, 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
 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. . . . 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.
 Id.
 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.
 Id.
 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].”
 Id.
 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 “
 Lombardi II 
”). In denying rehearing, the Eighth Circuit addressed plaintiffs’ argument that the ruling regarding the pleading standard in
 Lombardi I
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).
See id.
 The Eighth Circuit reiterated the pleading standard set out in
 Lombardi
, differentiated the facts at hand from those in
 Hill
, 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
 Hill
and
 Baze
.
Cf. Ashcroft v. Iqbal,
556 U.S. 662,
Case 4:14-cv-08000-BP Document 17 Filed 05/19/14 Page 3 of 17

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