Bucklew Response to Pet for Rehearing

IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

RUSSELL BUCKLEW, ) Plaintiff, ) ) Case No. 14-2163 v. ) Capital Case ) Scheduled for Execution GEORGE LOMBARDI, et al., ) May 21, 2014 Defendants. )

RESPONSE IN OPPOSITION TO PETITION FOR REHEARING

AND REHEARING EN BANC

Mr. Bucklew, by and through his counsel, hereby responds in opposition to

Defendants’ Petition for Rehearing and Rehearing En Banc.

This Court should deny the Petition, which presents no basis in law or logic

for rejecting the well-reasoned, 17-page decision issued by the panel. First of all,

Defendants do not accurately represent Mr. Bucklew’s position. Mr. Bucklew’s

stated stated in his complaint: “Absent a thorough physical examination and

complete imaging studies, it is not even possible to state whether a constitutional

method of executing Mr. Bucklew by lethal injection exists.” (Doc. 1 at 22, ¶79).

Thus, Mr. Bucklew alleged the difficulty – though not impossibility -- of

identifying a feasible alternative, given the lack of current imaging studies to

determine the size and location of his numerous and extensive vascular tumors.

Appellate Case: 14-2163 Page: 1 Date Filed: 05/20/2014 Entry ID: 4156143

The reason such imaging studies do not exist is the fault of Defendants.

Although having the constitutional obligation to provide adequate medical care –

which includes monitoring Mr. Bucklew’s very rare and severe condition – which

is even today is causing extreme pain, slurred speech and the need for extra

medication prior to his scheduled execution -- Defendants have failed to obtain

any up-to-date imaging studies. This is inexplicable, given that the last imaging

study, an MRI in June 2010, noted “a large complex right facial mass” that

extended from the top of the nasal cavity deep into the throat. The radiologist’s

report is extremely detailed and lengthy, filled with sentences such as: “[t]he mass

fills the masticator space and extends into the submandibular region inferiorly. In

the pharynx, the mass occupies a large space within the oropharynx and

hypopharynx.” The report noted that the “airway is severely compromised” and

that Mr. Bucklew had had a tracheostomy in the past. The report noted facial

burning and pain. (Exh. 1)

Defendants first turned their attention to the subject of imaging only last

week, initially suggesting a venous study of Mr. Bucklew’s arms – perhaps useful,

but not relevant to the large vascular tumors that fill his head and throat. It was

only later in the week that Defendants seemed to recognize that an MRI might be

necessary and discussed that possibility with Mr. Bucklew’s counsel. However,

once they discovered that Mr. Bucklew’s imaging needs were too extensive and


complex to accomplish in a day or two, they abandoned interest in seeking an MRI

or CT scan.

Mr. Bucklew’s counsel have worked for years, with no monetary resources,

to investigate this condition. Indeed, their efforts have been stymied by

Defendants’ counsel, the Attorney General’s office, who opposed their requests for

funding.

Now, Defendants claim, when Mr. Bucklew’s condition is clearly at an

advanced stage, requiring heavy daily medication to control pain and other

symptoms, that he is, essentially, no different than anyone else and should be able

to propose a feasible, alternative method of execution even those it is Defendants’

counsel who have repeatedly thwarted investigation by Mr. Bucklew’s counsel into

Mr. Bucklew’s medical condition.

No one can seriously suggest that there are not some individuals in prison

who are medically frail or who suffer from grave or debilitating conditions.

Indeed, many prisons these days have hospices to treat inmates in advanced stages

of cancer or other diseases. Certainly an individual with pancreatic cancer – like

the prisoner in Siebert v. Allen, 506 F.3d 1047, 1049-50 (11th Cir. 2007) – would

not be in a position to propose a “feasible, alternative” method of execution. Some

people are simply too ill – or have conditions such as drug allergies, bleeding


disorders, seizure disorders, vascular diseases, past trauma to their airways – that

making attempting to execute them an extremely risky venture.

In essence, the panel’s opinion recognizes that Mr. Bucklew is unique – he

suffers from a severe form of a rare disorder, and it presently makes him prone to

hemorrhaging, choking, suffocating and/or suffering a loss of his airway during the

execution procedure. It is difficult to imagine any other prisoner who would fit

this description.

In the end, most people will become frail and old. No one would suggest

that a 95-year-old would be as fit for a “feasible” execution “alternative” as a 30

year old. A person of any age could be suffering from stage IV cancer or an auto-

immune disease that ravages the body. The panel opinion merely recognizes the

reality that one prisoner’s severe medical condition may create great risks in the

execution chamber, and that those risks could give rise to bleeding, choking or

suffocating during the execution.

There is nothing in the law that requires denying reality. The facts

concerning Mr. Bucklew’s medical condition are uncontroverted, and Defendants

have presented no evidence that contradicts Mr. Bucklew’s experts.

Finally, it is clear that Mr. Bucklew has fulfilled the Baze standard –

adequately alleging (and supporting with affidavits) a grave risk of excruciating or


tortuous pain, along with the undeniable fact that lack of current medical

information makes proposing an alternative method difficult at this time. Mr.

Bucklew has repeatedly sought funds for experts, and should be permitted to

develop his claims through further proceedings.

Respectfully submitted,

/s/ Cheryl A. Pilate Cheryl A. Pilate, Mo. No. 42266 Lindsay J. Runnels, Mo. No. 62075 MORGAN PILATE LLC 926 Cherry Street

Kansas City, MO 64106 Phone: 816-471-6694 Fax: 816-472-3516 Email: [email protected] Email: [email protected]

CERTIFICATE OF SERVICE

I, Cheryl A. Pilate do hereby certify that a copy of the above and foregoing was

served on the Court and opposing counsel via the electronic filing system on this

20th day May, 2014.

/s/ Cheryl A. Pilate


mailto:[email protected]

AFS923A

DOC ID OFFENDER 00990137 RUSSELL E BUCKLEW ***** OBJECTIVE CONTINUATION FROM PREVIOUS PAGE *****

N(Y/N) RETURNED WITH DRESSING OR ASSISTIVE DEVICES EXPLAIN:

Y(Y/N) RECEIVED RECOMMENDATIONS FROM OFF-SITE SPECIALIST LIST OF RECOMMENDATIONS: POSSIBLE TX

0:: :MOR :: End of: MEDICAL OUT COUNT RETURN ASSESSMENT

A: (MOR) MEDICAL OUT COUNT RETURN ASSESSMENT A:: :MOR :: End of: MEDICAL OUT COUNT RETURN

PLAN P: (MOR) MEDICAL OUT COUNT RETURN Y(Y/N) RECOMMENDATIONS REVIEWED WITH PRIMARY CARE PHYSICIAN Y(Y/N) ORDERS RECEIVED Y(Y/N) EDUCATED ON PLAN OF CARE

N(Y/N) FOLLOW-UP APPOINTMENT SCHEDULED WITH SITE PHYSICIAN N(Y/N) FOLLOW-UP NURSING ENCOUNTER SCHEDULED P:: :MOR .. End of: MEDICAL OUT COUNT RETURN

NURSE 12327 KIM A KLEIN

SPECIFIC CHARTING INFORMATION 06/02/2010 Nurse encounter MSR filed

PAGE:

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MSR DATE TIME COMPLAINT *********************************************** 06/03/2010 .06:45 A ENT OUTCOUNT UPDATE

DOCTOR ENCOUNTER APPOINTMENT DATE 06/03/2010 TIME 06:45 A SHOW UP Y PCC SUBJECTIVE

***NONENCOUNTER NOTE*** Pt had ENT eval per Dr. zitch at UMMC 6/2/10 re cavernous hemangioma c increasing frequency of bleeding oral cavity and nose. .

Prior scleral Rx 2000 for cavernous hemangioma and eval per Dr. Zitch.

ASSESSMENT -Per ENT: some progression of vascular malformation of face/neck.

PLAN -ENT rec: MRI of head/neck with flu for treatment discussion. (MRI to go c pt for ENT F/U.) -Referral for MRI and ENT flu c MRI.

DOCTOR WDMOO#EM WILLIAM D MCKINNEY

REFERRAL REQUEST DATE 06/03/2010 REQUEST REASON sip PRIOR SCLERAL RX FOR CAVERNOUS HEMANGIOMA 2000. NOW

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PCC

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EXHIBIT 1Appellate Case: 14-2163 Page: 1 Date Filed: 05/20/2014 Entry ID: 4156144

AFS923A PAGE:

DOC ID OFFENDER 00990137 RUSSELL E BUCKLEW ***** REQUEST REASON CONTINUATION FROM PREVIOUS PAGE *****

PROGRESSING C INCREASED FREQUENCY OF ORAL CAVITY AND NASAL BLEED. ENT EVAL DR. ZITCH 6/2/10 REC ABOVE TO EVAL THENF/U FOR TREATMENT DISCUSSION. (WILL FAX DR. NOTE.)THANKS, WDM

20100603 065108 20100603 065108 20100603 065108

REQUEST COMMENTS AWAITING FAX FOR REFERRAL REVIEW. CLP 060310 YES PER RMD CONLEY FOR MRI FACE/NECK. CLP 061510

REFER TO: MRI FACE/NECK

REQUESTOR WDMOO#EM WILLIAM D MCKINNEY

APPROVED

20100603 075603 20100615 095914

Y

SPEC. ENCOUNTER APPOINTMENT DATE 07/14/2010 TIME 08:30 A SHOW UP Y PCC SPEC. CONTACTS

KNOWN VASCULAR TUMOR SLIGHT PROGRESSION OVER PAST SEVERAL YEARS 1. DISCUSSED SURGICAL OPTIONS WITH LARGE CONCOMITA NT DISABILITY PT REFUSED 2. DISCUSSED OTHER OPTIONS INCLUDING OBSERVATION V S RADIATION THERAPY PT WOULD LIKE CONSIDERATION R .T PLEASE ARRANGE RT CONSULT 3. CONSIDER TREATMENT OF NEUROPATHIC PAIN GABAPENT IN?

SPECIALIST ZITSCH ROBERT P ZITSCH

SPECIFIC CHARTING INFORMATION 06/03/2010 Doctor/Dentist encounter MSR filed Request for Referral was submitted

07/14/2010 Appointment with Specialist scheduled

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135139 135139 135139 135139 135139 135139 135139 135139 135139

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MSR DATE TIME COMPLAINT *********************************************** 06/03/2010 06:53 A ENT F/U FOR CAVERNOUS HEMANGIOMA

REFERRAL REQUEST DATE 06/03/2010 REQUEST REASON

SEEN IN F/U PER DR. ZITCH 6/2/10. HX AS PER REFERRAL FOR MRI. PT WILL NEED F/U AS ABOVE P MRI. THANKS, WDM.

REQUEST COMMENTS AWAITING FAX FOR REFERRAL REVIEW. CLP 060310 YES PER RMD CONLEY FORF/U #1 ENT. CLP 060310

REFER TO: ENT F/U CDR. ZITCH FOR TREATMENT OPTS. APPROVED

REQUESTOR WDMOO#EM WILLIAM D MCKINNEY

PCC

20100603 065545 20100603 065545 20100603 065545

20100603 075622 20100603 133650

Y

SPEC. ENCOUNTER APPOINTMENT DATE 06/23/2010 TIME 08:00 A SHOW UP Y PCC ASSESSMENT

MRI NECK WITHOUT CONTRAST AND FACE 20100812 083408 CLINICAL DATA: RIGHT SIDED FACIAL MASS, FACIAL BURNING AND P 20100812 083408

78

PC001462


AFS923A r",

("~MPLETE MEDICAL RECORD HIS:?-Y

DOC ID OFFENDER 00990137 RUSSELL E BUCKLEW ***** ASSESSMENT CONTINUATION FROM PREVIOUS PAGE ***** AIN TECHNIQUE: MULTIPLANAR MULTISEQUENTIAL I.MAGING WAS PERFORMED

OF THE NECK AND FACE WITHOUT CONTRAST. THE STUDY WAS ORDERE D WITH AND WITHOUT IV CONTRAST. HOWEVER, THE PATIENT REFUSED

CONTRAST. FINDINGS: HTEER IS A LARGE COMPLEX RIGH FACIAL .MASS. THE .MAS S INVOLVES THE RIGHT PHARYNGEAL WALL, EXTENDS INTO THE PARAP HARYNGEAL SPEACE ADJACENT TO THE RIGHT SIDE FO THE MANDIBLE INFERIORLY THE .MASS EXTENDS FROM TEH HYPOPHARYNX JUST ABOVE THE TIP OF THE EPIGLOTTIS. SUPERIORLY, THE .MASS EXTENDS TOWA RD AND POSSIBLE INTO THE POSTERIOR LEFT NASAL CAVITY AT THE LEVEL OF THE INFERIOR LEFT ETHMOID AND RIGHT MIDDLE MEATUS. THE MASSS SURROUNDS THE RIGHT PTERYGOID MUSCULATURE. I DO NO T IDENTIFY A DEFINITE RIGHT BUCCINATOR OR .MASTICATOR MUSCLE.

THE .MASS FILLS THE MASTICATOR SPACE AND EXTENDS INTO THE SU BMANDIBULAR REGION INFERIORLY. IN THE PHARYNX, HE MASS OCCUPIES A LARGE SPACE IWTHIN THE OR OPHARYNX AND HYPOPHARYNX. THE AIRWAY IS SEVERELY COMPROMISED AT THIS SITE, A TRACHEOSTOMY IS NOTED IN THE UPPER THORAX. THE .MASS MEASURES UP TO 6.5 CM TRANSVERSE DIAMETER BY 4.4CM AP DIAMETER BY 8.1CM IN CRANIOCAUDAL LENGTH. THERE IS TUMOR TISSUE INVOLVING THE RIGHT MAXILLARY BONE ROOF AND EXTENDING

INTO THE RIGHT NASAL CAVITY. ABOVE THE .MASS WITHIN THE NASA L CAVITY, THERE IS OPACIFICATION OF THE RIGHT ETHMOID AIR CE LLS WHICH ARE LLIKELY INCLUDED. CORONAL IMAGES DEMONSTRATE AN ELONGATED EXTENSION OF THE .MAS S WIHTIN THE OROPHHARYNX AND HYPOPHARYNX AGAIN JUST TO ABOVE

THE EPIGLOTTIS IMPRESSION: 1. COMPLEX RIGHT SIDED FACIAL .MASS INVOLVING MULTIPLE PHARYN GEAL AND PARAPHNGENGEAL INVOLVING THE RIGHT MAXILLARY BONE A ND RIGHT NASAL CAVITY AND EXTENDIGN INTO THE OROPHARYNX AND HYPOPHARYNX. AT HTE JUNCTION OF THE OROPHARYNX AND HYPOPHARY NX, THERE IS A LARGE AMOUNT OF TUMOR TISSUE WITHIN THE PHARY NGEAL CAVITY. THE AIRWAY IS SIGNIFICANTLY COMPROMISED AT THI S SITE 2. TRACHEOSTOMY IS PRESENT IN THE UPPER THORAX

SPECIALIST VISTA . VISTA

SPECIFIC CHARTING INFORMATION 06/03/2010 Request for Referral Initiation filed

06/23/2010 Appointment with Specialist scheduled

PAGE:

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MSR DATE TIME COMPLAINT *********************************************** 06/03/2010 09:50 A QMHP - CHRONIC CARE ENCOUNTER

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Documents

Bucklew Response to Pet for Rehearing