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Court Order Denying Stay & Dismissing Bucklew v Lombardi

Court Order Denying Stay & Dismissing Bucklew v Lombardi

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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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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 I”); 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 I, 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
4

678 (2009).” Id., 741 F.3d at 905. Based on the Eighth Circuit’s decisions and other
developments in the case, plaintiffs moved to file a second amended complaint, which this Court
granted. See Zink at Docs. 312, 339. Plaintiffs also filed a petition for writ of certiorari with the
Supreme Court regarding Lombardi I, which was denied. See Zink v. Lombardi, Sup. Ct. No. 13-
8435 (Apr. 7, 2014).
Plaintiffs’ second amended complaint, which was filed before the petition for writ of
certiorari was denied, set forth ten counts, including: (1) violations of the Eighth Amendment;
(2) deliberate indifference to serious medical needs in violation of the Due Process Clause of the
Fourteenth Amendment, the Eighth Amendment, and the Missouri Constitution; and (3)
violations of the First Amendment of the United States Constitution and the related provision
under the Missouri Constitution. See Zink, No. 12-4209 at Doc. 338. The re-pled Eighth
Amendment claim included language stating that plaintiffs conceded that other methods of lethal
injection the Department could choose would be constitutional, but failed to plead a specific and
viable alternative execution method. The defendants moved to dismiss all ten counts under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Id. at Doc. 354.
On May 2, 2014, this Court entered an Order finding that plaintiffs failed to state any
claims upon which relief could be granted. Id. at Doc. 437. Specifically, this Court noted that
the Eighth Amendment claim must allege facts sufficient to state a claim for relief that is
plausible on its face and that allows the Court to draw a reasonable inference that a defendant is
liable for the misconduct alleged. Id. at Doc. 437, p. 9. This Court concluded that, under both
Lombardi I and II, language conceding that other methods of lethal injection the Department
could choose would be constitutional was merely a naked assertion, as it did not permit the Court
to draw a reasonable inference that there was a reasonably available alternative that was less
Case 4:14-cv-08000-BP Document 17 Filed 05/19/14 Page 4 of 17
5

likely to create a substantial risk of harm. Id. at Doc. 437, p. 9. Thus, the Court found plaintiffs
had not stated an Eighth Amendment claim because they had failed to sufficiently allege a
specific alternative manner of execution. However, the Court allowed plaintiffs to amend their
complaint to properly re-plead their Eighth Amendment claim to state a known and feasible
alternative to the current execution method. Id. at Doc. 437, p. 9.
On May 16, 2014, plaintiffs, including Bucklew, declined to properly re-plead their
Eighth Amendment claim. They stated:
Plaintiffs respectfully disagree with the Court’s ruling that Plaintiffs must
propose an alternative means of execution in order for their Eighth Amendment
claim to be viable, and Plaintiffs decline to do so. Unless the Court has changed
its view, Plaintiffs respectfully request that the Court resolve the remainder of
the motion to dismiss so that Plaintiffs may promptly pursue appropriate
appellate remedies.

See id. at Doc. 442, p. 3. Because plaintiffs had failed to plead a known and feasible alternative,
this Court concluded they had failed to state a viable Eighth Amendment claim and dismissed
that claim and the case in its entirety. Id. at 443.
b. Bucklew’s Instant Action
On April 9, 2014, the Missouri Supreme Court ordered that Bucklew be executed on May
21, 2014. On May 9, 2014, after the Court entered the initial Order regarding dismissal in Zink,
Bucklew filed this action against defendants in their official capacity. He brings three claims.
Count I alleges defendants’ execution protocol, as applied to Bucklew and given his medical
condition, violates his Eighth Amendment right to be free from cruel and unusual punishment.
Specifically, Bucklew suffers from cavernous hemangioma, which he alleges causes clumps of
weakened vessels to grow in his head, face, and throat. (Compl., Doc. 1, ¶ 1.) He alleges that a
vascular tumor caused by this condition hemorrhages regularly and obstructs his airway. (Id. at
¶¶ 3-5.) Bucklew further alleges that his condition creates a substantial risk that he will suffocate
Case 4:14-cv-08000-BP Document 17 Filed 05/19/14 Page 5 of 17
6

during the execution and/or that the execution drug would not properly circulate, thus causing
him extreme or excruciating pain in violation of his right to be free from cruel and unusual
punishment. (Id. at ¶¶ 4-7.) Count II alleges that defendants’ failure to take reasonable and
necessary steps to assess the risk to Bucklew during his execution constitutes deliberate
indifference to his serious medical needs, and violates his rights under the Eighth Amendment
and the Due Process Clause of the Fourteenth Amendment. Count III alleges that defendants’
refusal to provide information about the intended execution drug violates his First Amendment
right to petition the government for redress of grievances and his right to due process under the
Fourteenth Amendment.
Bucklew then filed a Motion for Temporary Restraining Order and Preliminary
Injunction, (Doc. 2), as well as the instant Motion for Stay of Execution, (Doc. 6). The Court
takes up the parties’ arguments regarding the Motion for Stay below.
II. Motion for Stay of Execution
1

a. Standard
An inmate challenging the manner in which the State plans to execute him must show a
“significant possibility of success on the merits.” Hill v. McDonough, 547 U.S. 573, 584 (2006);
Nooner v. Norris, 491 F.3d 804, 808 (8th Cir. 2007). “[B]efore granting a stay, a district court
must consider not only the likelihood of success on the merits and the relative harms to the
parties, but also the extent to which the inmate has delayed unnecessarily in bringing the claim.”
Nelson v. Campbell, 541 U.S. 637, 649-50 (2004); Nooner, 491 F.3d at 808. When assessing
unnecessary delay, the Court considers the fact that a stay of execution is an equitable remedy.
Nooner, 491 F.3d at 807. As such, there is a “strong equitable presumption against the grant of a

1
Counsel for Plaintiff’s schedule did not permit a hearing between the date that the briefing on the Motion for Stay
of Execution, (Doc. 6), was complete and the date of this Order. Therefore, the Court has assumed as true the
information contained in the affidavits supplied by Plaintiff.
Case 4:14-cv-08000-BP Document 17 Filed 05/19/14 Page 6 of 17
7

stay where a claim could have been brought at such a time as to allow consideration of the merits
without requiring entry of a stay.” Id. at 808 (quotation omitted). “Once a state inmate’s
sentence of death has become final on direct review in a state’s courts, there is no impediment to
filing a[n] . . . action challenging the constitutionality of the state’s lethal injection protocol as
long as the lethal injection is the established method of execution, the protocol is known, and no
state administrative remedies are available.” Id. (citations omitted).
Additionally, “[a] district court has the power to sua sponte dismiss a complaint for
failure to state a claim.” Smith v. Boyd, 945 F.2d 1041, 1042-43 (8th Cir. 1991) (quotation
omitted); see also Fed. R. Civ. P. 12(b)(6). Dismissal under Federal Rule of Civil Procedure
12(b)(6) is proper where the complaint fails to state a claim upon which relief can be granted.
Cook v. ACS State & Local Solutions, Inc., 663 F.3d 989, 992 (8th Cir. 2011). The complaint
must allege facts sufficient to “state a claim to relief that is plausible on its face.” Walker v.
Barrett, 650 F.3d 1198, 1203 (8th Cir. 2011) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). To sufficiently plead a plausible claim, the factual content of the claim must allow
“the Court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Horras v. Am. Capital Strategies, 729 F.3d 798, 801 (8th Cir. 2013) (quoting Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009)). “Labels and conclusions,” “formulaic recitations of the
elements of a cause of action,” and “naked assertions devoid of further factual enhancement” are
not sufficient pleadings to survive a motion to dismiss. Id. (quoting Twombly, 550 U.S. at 557).
In ruling on a motion to dismiss, the “court accepts as true all factual allegations but is not bound
to accept as true a legal conclusion couched as a factual allegation.” Cook, 663 F.3d at 992
(quotations omitted). Finally, the court must construe all reasonable inferences in favor of the
plaintiff. Palmer v. Ill. Farmers Ins. Co., 666 F.3d 1081, 1083 (8th Cir. 2012).
Case 4:14-cv-08000-BP Document 17 Filed 05/19/14 Page 7 of 17
8

b. Eighth Amendment Claim
As an initial matter, the Court considers the likelihood that Bucklew will succeed on the
merits of his Eighth Amendment claim. In support of his Complaint and his Motion for Stay,
Bucklew cites to the affidavits of Drs. Zivot, J amroz, and Sasich, which state that there is a
substantial likelihood that Bucklew will suffer needless pain and suffering if defendants carry out
Bucklew’s execution as the execution protocol currently prescribes. (See Docs. 6-4, 6-9, 6-10.)
Specifically, Bucklew contends these affidavits show a substantial risk that he will: (1) suffer
hemorrhaging in his face, mouth, or throat, resulting in bleeding through his facial orifices and/or
bleeding into his airway and subsequent suffocation; (2) experience a spike in blood pressure, as
a result of stress or as a side effect of methylene blue administered with the IV fluid, thus further
heightening the risk of a vascular rupture and additional bleeding; (3) suffer adverse medication
interactions, which may have the effect of increasing pain; and (4) suffer a prolonged,
excruciating execution because of the failure of the lethal drugs to properly enter or circulate in
Bucklew’s body, due to the vascular malformations. (See Doc. 6, p. 22.)
The Court has carefully reviewed these affidavits and finds them insufficient to conclude
that any adverse consequences Bucklew may suffer rise to the level of unconstitutional pain.
Although the affidavits contain words such as “significant” and “substantial risk,” a closer look
reveals that the affidavits do not contain the specificity necessary to prevail on an Eighth
Amendment claim. For example, when discussing the possibility of adverse drug interactions,
Dr. Zivot fails to explain how the medications could interact to increase Bucklew’s pain.
Although he concludes there is a substantial risk that drug interactions could cause pain, he bases
this conclusion on the fact that medications “may” interact with pentobarbital. When discussing
the possibility that the lethal drug will not circulate as intended, there is no explanation as to how
Case 4:14-cv-08000-BP Document 17 Filed 05/19/14 Page 8 of 17
9

the drug should circulate or will circulate. Similarly there is no explanation as to how he defines
“prolonged” or “extremely painful.” Lastly, the affidavits are void of discussion regarding the
length of time Bucklew may suffer pain. See Fierro v. Gomez, 77 F.3d 301, 306-09 (9th Cir.
1996), cert. granted, judgment vacated on other grounds, 519 U.S. 918 (1996) (determining that
execution by lethal gas is cruel and unusual punishment by considering: (1) the extreme pain an
inmate would suffer; (2) the specific length of time this extreme pain lasts; and (3) the substantial
risk that an inmate will suffer this extreme pain for several minutes); see also Brewer v.
Landrigan, 131 S. Ct. 445 (2010) (holding that “speculation cannot substitute for evidence that
the use of the drug is sure or very likely to cause serious illness and needless suffering”)
(quotation and emphasis omitted); Whitaker v. Livingston, 732 F.3d 465, 468-69 (5th Cir. 2013)
(“It is indeed not unreasonable to assume that if a prisoner has the right to be free from a
demonstrated risk of severe pain when compared to a known and available alternative, he ought
to have the opportunity to prove the risk of pain and the availability of alternatives. Even so,
plaintiffs must point to some likelihood that such pain will be severe and that some alternative
may exist. It is unacceptable to claim that some unspecified amount of time is required, just in
case they might be able to show that there might be some risk of potentially excessive pain . . .
“[U]nknown unknowns [about the dangerous propensity of a drug used for lethal injection] are
insufficient to demonstrate a risk of harm; something more is needed to meet the difficult
preliminary-injunction standard.”).
Even if the Court were to conclude that this evidence establishes a substantial risk that
Bucklew will suffer severe and needless pain, the Court concludes that Bucklew does not
properly plead his claim. Bucklew alleges defendants’ execution protocol creates a substantial
risk that he will suffer unconstitutional pain and suffering in violation of the Eighth Amendment,
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10

as discussed above. His Complaint alleges that Bucklew’s medical conditions create a
substantial risk that: (1) the lethal drug will not circulate properly; (2) airway obstructions will
cause him to suffocate; and (3) the saline mixture used to check the flow of the IV line will cause
a spike in Bucklew’s blood pressure, significant bleeding of the face, mouth, and throat, and
suffocation. (Doc. 1, ¶¶ 58-62.) However, his complaint does not include any reference to a
feasible and more humane alternative method of execution. And, unlike his second amended
complaint in Zink, Bucklew’s individual complaint does not even acknowledge that any method
defendants could use would be constitutional.
Rather, the Complaint appears to allege that there is currently no constitutional method of
executing Bucklew. For example, the Complaint alleges that “Bucklew cannot be executed
under Missouri’s protocol without inflicting cruel and unusual punishment in violation of the
Eighth Amendment,” (Doc. 1, ¶ 7), and suggests that “[t]here are individuals who, like Mr.
Bucklew, have such severe and overwhelming physical vulnerabilities that death by lethal
injection poses unacceptable and unconstitutional risks.”
2
(Id. at ¶ 80.)
Despite this apparent deficiency in the Complaint, the Court carefully reviewed the
additional briefing in the light most favorable to Bucklew to determine whether Bucklew makes
any allegations that could be construed to allege feasible alternatives. The Court notes that
Bucklew requests forms of relief in his Motion for Temporary Restraining Order and Preliminary
Injunction, (Doc. 2), which could be construed as stating known and feasible alternatives not
appearing in the Complaint. This relief includes that: (1) Defendants should not use methylene
blue to flush IV lines; and (2) Defendants should adjust Bucklew’s position on the gurney to

2
This language suggests that if Bucklew is successful in his lawsuit, it would prevent the State from executing him
by lethal injection. The question follows: is Bucklew actually challenging the lawfulness of his lethal injection
sentence and, if so, should this action have been properly brought as a habeas action, not a § 1983 action? See Hill,
547 U.S. 573 (2006). Because it is not necessary to determine such issue, the Court does not consider it.
Case 4:14-cv-08000-BP Document 17 Filed 05/19/14 Page 10 of 17
11

minimize the risk of choking.
3
(Doc. 2, pp. 2-3.) Defendants state that methylene blue and
indigo carmine will not be used for Bucklew’s execution. (See Doc. 8, p. 7.) Moreover,
defendants state that the anesthesiologist can appropriately position Bucklew to reduce the risk
of choking. (Id. at p. 8.) Thus, defendants have taken into account those suggestions that might
significantly reduce the alleged substantial risk of severe pain. Moreover, these suggestions are
merely slightly safer alternatives to the current execution method, or are not proposals of
alternative methods of execution. Thus, those suggestions are not feasible alternatives. See
Cooey, 589 F.3d at 227-28 (discussing what constitutes a feasible alternative).
In various filings, Bucklew alleges defendants should conduct examinations and imaging
studies, and make whatever unspecified changes that may be indicated by future testing of
Bucklew. (See, e.g., Doc. 2, pp. 2-3.) However, Bucklew does not appear to request such
testing to determine an alternative method of execution, but to better understand the specific
risks the current method poses to him. (See Doc. 1, ¶ 12.) Further, Dr. Zivot states that “[t]he
bottom line is that there is no way to proceed with Mr. Bucklew’s execution without a substantial
risk to Mr. Bucklew of suffering grave adverse events during the execution, including
hemorrhaging, suffocating or experiencing excruciating pain.” (Doc. 7-1, ¶ 16.) This statement
further supports the conclusion that Bucklew has not alleged a feasible alternative.
The Eighth Circuit held that “[w]ithout 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 in Zink had not stated an Eighth Amendment claim based on the
use of compounded pentobarbital. Lombardi I, 741 F.3d at 896. Moreover, “proffered

3
The Motion for Temporary Restraining Order and Preliminary Injunction, (Doc. 2), also seeks an Order that
Bucklew be monitored by a physician who will revive him if the execution is unsuccessful, along with resuscitation
equipment. These requests do not suggest an alternative method of execution, but rather actions to be taken if the
execution is unsuccessful.
Case 4:14-cv-08000-BP Document 17 Filed 05/19/14 Page 11 of 17
12

alternatives must effectively address a substantial risk of serious harm. To qualify, the
alternative procedure must be feasible, readily implemented, and in fact significantly reduce a
substantial risk of severe pain.” Baze, 553 U.S. at 52 (internal quotation and marks omitted). In
addition to pleading a feasible and readily available alternative, a plaintiff must also plead that
the current execution method creates a substantial risk of serious harm or an objectively
intolerable risk of harm such that it is “sure or very likely to cause serious illness and needless
suffering.” See Landrigan, 131 S. Ct. at 445 (quotation omitted); Clemons v. Crawford, 585 F.3d
1119, 1125 (8th Cir. 2009). However, “[t]he mere fact ‘an execution method may result in pain,
either by accident or as an inescapable consequence of death,’ does not amount to an Eighth
Amendment violation.” Clemons, 585 F.3d at 1125 (quoting Baze, 585 U.S. at 50); see also
Cooey v. Strickland, 589 F.3d 210, 228 (6th Cir. 2009) (“[A] prisoner cannot successfully
challenge a method of execution merely by showing that the method may result in pain . . . or
that a slightly safer alternative is available.”) (quotation omitted).
Bucklew’s allegations are insufficient to state an Eighth Amendment claim. His
allegations do not permit the Court to draw a reasonable inference that a reasonably available
alternative exists, or that any potential alternative is less likely to create a substantial risk of
harm. Additionally, in Zink, Bucklew stated he did not intend to plead a known and feasible
alternative. When given the opportunity to amend the complaint and correctly state an Eighth
Amendment claim, Bucklew declined to do so. See Zink, No. 12-4209 at Doc. 442 (“Plaintiffs
respectfully disagree with the Court’s ruling that Plaintiffs must propose an alternative means of
execution in order for their Eighth Amendment claim to be viable, and Plaintiffs decline to do
so.”). Thus, affording Bucklew an opportunity to amend his pleading to state a known and
feasible alternative would be futile.
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13

Because he fails to state an Eighth Amendment claim, Bucklew cannot show a likelihood
of success on the merits, and the Court need not consider the remaining factors for a stay.
4
As a
result, dismissal is proper for this count. See Smith, 945 F.2d at 1043 (allowing dismissal
without notice where plaintiff cannot prevail on facts alleged and amendment would be futile).
c. Deliberate Indifference Claim
Bucklew alleges that defendants’ failure to conduct a physical examination or obtain
recent imaging studies and failure make a contingency plan if the drugs fail constitute deliberate
indifference to his serious medical needs. Defendants contend that this issue was rejected by the
Court in Zink, where Bucklew was a plaintiff, and for the same reason cannot support a stay here.
“[D]eliberate indifference to serious medical needs of prisoners constitutes the
unnecessary and wanton infliction of pain . . . proscribed by the Eighth Amendment.” Estelle v.
Gamble, 429 U.S. 97, 104 (1976) (quotation omitted); see also Nelson v. Campbell, 541 U.S.
637, 644-47 (2004) (discussing claims for deliberate indifference in a death penalty context).
“An official . . . may be held liable under the Eighth Amendment if he knows that an inmate
faces a substantial risk of serious harm and disregards that risk by failing to take reasonable
measures to abate it.” Schaub v. VonWald, 638 F.3d 905, 916 (8th Cir. 2011).
As discussed in Zink, defendants are not addressing Bucklew’s medical needs when they
carry out his execution. Bucklew’s own expert admits that an execution is not a medical
procedure. (See Doc. 6-4, ¶ 26 (“Although there are aspects of the lethal injection protocol that,
superficially, appear to draw on medical expertise, lethal injection is not a medical act and does

4
However, the Court questions whether Bucklew unnecessarily delayed in bringing his claims. There is a “strong
equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow
consideration of the merits without requiring entry of a stay.” Nooner, 491 F.3d at 808 (quotation omitted).
Bucklew has suffered from his medical condition for nearly his entire life, (see Doc. 1, ¶ 1), and he has known of his
execution date since April 9, 2014. However, he only filed this action specific to his alleged medical condition on
May 9, 2014, and filed his Motion for Stay of Execution, (Doc. 6), on May 14, 2014. Bucklew could have brought
this claim at an earlier time, and thereby, allowed the Court to consider the merits of his claim without a stay.
Case 4:14-cv-08000-BP Document 17 Filed 05/19/14 Page 13 of 17
14

not possess any of the safeguards of the practice of medicine and anesthesiology.”).) Rather,
defendants are following their duties under the law to impose Bucklew’s sentence. Moreover,
defendants are taking certain measures to accommodate Bucklew and carry out a constitutional
execution. For example, they state that neither methylene blue nor indigo carmine will be used
in Bucklew’s execution, and that the anesthesiologist can position Bucklew in such a way to
prevent choking. (See Doc. 8, pp. 7-8.) Thus, defendants are not deliberately indifferent to
Bucklew’s alleged medical needs, as they are taking reasonable measures to abate the alleged
risks that they can address. Additionally, as discussed above, Bucklew has again failed to
properly plead an Eighth Amendment claim and thus has not pled that the current execution
protocol inflicts unnecessary pain in violation of the Eighth Amendment. Bucklew has a right to
be free of unnecessary pain and suffering, but not to be free from all pain. See Clemons, 585
F.3d at 1125. As such, he fails to state a deliberate indifference claim and, therefore, cannot
show a likelihood of success on the merits. The Court need not consider the remaining factors
for a stay. Moreover, dismissal is proper for this count. See Smith, 945 F.2d at 1043.
d. First Amendment Claim
Bucklew alleges defendants are violating his First Amendment right to petition the
government for redress and access to the courts by refusing to provide information regarding the
execution drug, including details of its preparation and information about safety, purity, and
potency. Defendants contend that this issue was rejected by the Court in Zink, where Bucklew
was a plaintiff, and for the same reason cannot support a stay here.
First, Bucklew has not properly pled his First Amendment claim. Bucklew seeks access
to government-held information to petition the government for redress. However, he is not in
lawful possession of this information, or in the business of publishing and publicizing such
Case 4:14-cv-08000-BP Document 17 Filed 05/19/14 Page 14 of 17
15

information, and did not have to stop disseminating once-public information. “[T]his is not a
case in which the government is prohibiting a speaker from conveying information that the
speaker already possesses.” Los Angeles Police Dep’t v. United Reporting Pub. Corp., 528 U.S.
32, 40-41 (1999) (finding plaintiff could not raise a facial challenge to California statute limiting
access to arrestee addresses to commercial users, and plaintiff’s claim is properly analyzed as a
content-based restriction on access to government information, not on protected speech); cf.
Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2665-66 (2011) (finding Vermont’s statute
restricting sale, disclosure, and use of pharmacy records revealing prescribing practices of
individual doctors was a content- and speaker-based “restriction on access to information in
private hands” that burdened protected speech in violation of the First Amendment). Bucklew
has thus not properly pled that he has an initial right to access the identities of the execution
team, or that his rights to speech or expression are implicated under the circumstances of this
case. Sorrell, 131 S. Ct. at 2665-66 (“An individual’s right to speak is implicated when
information he or she possesses is subjected to restraints on the way in which the information
might be used or disseminated.”) (internal quotation omitted).
Second, while prisoners “have a constitutional right of access to the courts,” the Due
Process Clause does not “enable the prisoner to discover grievances, and to litigate effectively
once in court.” Williams v. Hobbs, 658 F.3d 842, 851-52 (8th Cir. 2011) (quotations and
emphasis omitted). Specifically, the right to access to the courts affords only “the capability of
bringing contemplated challenges to sentences or conditions of confinement[.]” Lewis v. Casey,
518 U.S. 343, 356 (1996). “[I]mpairment of any other litigating capacity is simply one of the
incidental (and perfectly constitutional) consequences of conviction and incarceration.” Id. at
355 (emphasis omitted). While defendants’ refusal to disclose information about the execution
Case 4:14-cv-08000-BP Document 17 Filed 05/19/14 Page 15 of 17
16

drug may have hindered Bucklew’s ability to discover grievances and effectively litigate any
challenge to the drug’s use, defendants have not obstructed his ability to file a suit. This lawsuit
itself is evidence of Bucklew’s ability to challenge the drug’s use. See Williams, 658 F.3d at 852
(holding that the plaintiffs’ ability to bring a lawsuit challenging the state’s execution
proceedings belied their claim, in that it showed they still had access to the courts although the
protocol was not disclosed to them) (citing Giarratano v. Johnson, 521 F.3d 298, 305-06 (4th
Cir. 2008) (a prison system’s outright refusal to provide a medical protocol did not make a
prisoner’s challenge impossible, but rather just made it more difficult.)).
Third, Bucklew fails to plead a remedy redressing any of these alleged First Amendment
violations. Bucklew requests that the Court declare his First Amendment rights were violated,
and as a result provide injunctive relief preventing defendants from executing him under the
current lethal-injection protocol. However, even if accepted as pleaded, this count does not
entitle Bucklew to this requested relief, nor would this relief adequately and properly redress
wrongs under the First Amendment. Bucklew has failed to state a viable First Amendment
claim.
Because Bucklew fails to state a First Amendment claim, he cannot show a likelihood of
success on the merits and the Court need not consider the remaining factors for a stay.
Moreover, dismissal is proper for this count.
5
See Smith, 945 F.2d at 1043.


5
The Court also notes that Bucklew is collaterally estopped from bringing this claim. He makes the same First
Amendment claim as that in Zink, which this Court has already addressed and dismissed on the merits for failure to
state to claim. Additionally, Bucklew was given a full and fair opportunity to be heard on this issue, as it was fully
briefed by all parties before the Court dismissed the claim. Thus, Bucklew is collaterally estopped from bringing his
First Amendment claim. See Aetna Cas. & Surety Co. v. Gen. Dynamics Corp., 968 F.2d 707, 711 (8th Cir. 1992)
(“[C]ollateral estoppel bars relitigation of an issue when: (1) the issue was identical to one in a prior adjudication;
(2) there was a final judgment on the merits; (3) the estopped party was a party or in privity with a party to the prior
adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue.”).
Case 4:14-cv-08000-BP Document 17 Filed 05/19/14 Page 16 of 17
17

III. Conclusion
Accordingly, Bucklew’s Motion for Stay of Execution, (Doc. 6), is DENIED. Bucklew’s
Motion for Temporary Restraining Order and Preliminary Injunction, (Doc. 2), is DENIED
because Bucklew’s claims fail as a matter of law, as discussed herein, and thus he cannot show a
likelihood of success on the merits. The Court need not consider the remaining factors for
injunctive relief. Additionally, this case is hereby DISMISSED. Bucklew’s Motion for
Preservation of Critical Evidence of the Execution, (Doc. 11), and Bucklew’s Motion for
Immediate Discovery of Any Further Changes to Execution Protocol (Doc. 16) are DENIED as
moot.
IT IS SO ORDERED.


/s/ Beth Phillips
BETH PHILLIPS, J UDGE
UNITED STATES DISTRICT COURT

DATE: May 19, 2014
Case 4:14-cv-08000-BP Document 17 Filed 05/19/14 Page 17 of 17

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