Prejudgment Cert Final

8/10/2019 Prejudgment Cert Final

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No._______

IN THE SUPREME COURT OF THE UNITED STATES

* * * * *

LEON TAYLOR.,Petitioner,

v.

GEORGE A. LOMBARDI, et al.Respondents.

* * * * *

ON PETITION FOR PRE-JUDGMENT WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

THIS IS A CAPITAL CASE

EXECUTION SCHEDULED FOR NOVEMBER 19 AT 12:01 A.M.

* * * * *

PETITION FOR WRIT OF CERTIORARI

* * * * *

ELIZABETH UNGER CARLYLE(Counsel of Record)6320 Brookside Plaza #516Kansas City, Missouri 64113(816) 525-6540

Kathryn B. ParishSindel, Sindel and Noble, P.C.8000 Maryland, Suite 350Clayton, MO 63105(314)721-6040

Counsel for Petitioner


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i

QUESTIONS PRESENTED

After the Missouri Department of Corrections (hereinafter MDOC)

announced a new execution protocol in May of 2012, plaintiffs filed suit. The district

court ruled in plaintiffs favor regarding certain discovery issues, but the Eighth

Circuit granted a mandamus petition, ruling that no discovery was required

because plaintiffs had not met the requirement of Baze v. Rees, 553 U.S. 35 (2008),

that a prisoner propose an alternative means of execution in order to state an

Eighth Amendment claim attacking the states method of execution. After a number

of frustrated discovery requests and MDOCs issuance of multiple additional

changes in the execution protocol, plaintiffs filed their second amended complaint,

alleging among other things that the protocol violated their Eighth Amendment

rights and that the defendants obstruction of access to information about lethal

injection drugs and processes violated their due process rights. Plaintiffs did not

specifically allege an alternative execution method. The district court dismissed the

amended complaint as to all claims. This case presents the following questions:

I. Whether a plaintiff alleging that a states chosen method of execution violates

the Eighth Amendment must always plead a specific alternative constitutional

method of execution in order to avoid dismissal?

II. Whether the due process clause permits state actors to resist any judicial

scrutiny or substantive constitutional review of its lethal injection practices by

obstructing attempts to discover truthful information relevant to constitutional

claims raised and to continue to carry out executions while so doing?


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ii

PARTIES TO THE PROCEEDINGS BELOW

Parties to the proceedings in the district court below were:

Plaintiffs:

David Zink

Michael Worthington (Now Deceased)

John E. Winfield (Now Deceased)

Michael A. Taylor (Now Deceased)

Leon Taylor

Walter T. Storey

Herbert Smulls (Now Deceased)

William Rousan (Now Deceased)

Earl Ringo (Now Deceased)

Roderick Nunley

Allen L. Nicklasson (Now Deceased)

John C. Middleton (Now Deceased)

Paul T. Goodwin (Execution scheduled for December 10, 2014)

Joseph Paul Franklin (Now Deceased)

Jeffrey R. Ferguson (Now Deceased)

Andre Cole

Reginald Clemmons

Cecil Clayton

Mark A. Christeson


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iii

Russell E. Bucklew

David M. Barnett

Marcellus Williams (Intervenor-Plaintiff)

Richard Strong (Intervenor Plaintiff)

Defendants:

George A. Lombardi

David R. Dormire

Terry Russell

John Does 2-40


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iv

TABLE OF CONTENTS

Questions presented ....................................................................................................... i

Table of Contents .......................................................................................................... iii

Table of Authorities ....................................................................................................... v

Opinions below ............................................................................................................... 1

Jurisdiction .................................................................................................................... 1

Statutory and Constitutional Provisions Involved ....................................................... 1

Statement of the Case ................................................................................................... 3

Reasons for Granting the Writ ...................................................................................... 8

I. THE ISSUE OF EIGHTH AMENDMENT PLEADING REQUIREMENTS INMETHOD OF EXECUTION CHALLENGES IS A QUESTION OF GREATIMPORTANCE THAT REQUIRES CLARIFICATION BY THIS COURT ...... 8

II. THE CONDUCT OF STATE ACTORS WHICH WAS UPHELD BY THEDISTRICT COURT AND HAS BEEN SANCTIONED BY THE EIGHTHCIRCUITS RECENT RULINGS VIOLATES DUE PROCESS AND IS SOEGREGIOUS AS TO REQUIRE THE EXERCISE OF THIS COURTS

SUPERVISORY POWER .................................................................................. 19

III. THIS COURT SHOULD GRANT CERTIORARI PRIOR TO JUDGMENTBECAUSE THE CASE IS OF IMPERATIVE PUBLIC IMPORTANCE ANDREQUIRES IMMEDIATE DETERMINATION BY THIS COURT. .............. 24

Conclusion .................................................................................................................... 27

Appendix

Order of The District Court dismissing case, Dated 5/2/20141a

Order of The District Court dismissing case, Dated 5/16/201425a

Order of The District Court granting Stay Of Execution, dated 11/19/201327a


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v

Second Amended Complaint, filed in the district court 2/03/2014..41a

Affidavit of Dr. Larry Sasich, dated November 7, 2013..213a

Affidavit of Mark Heath 244a

Deposition of Matthew Briesacher (Mar. 21, 2014)..262a

In re Lombardi, 741 F.3d 888, 895-97 (8th Cir. 2014) (en banc)351a

In re Lombardi, 741 F.3d 903, 905 (8th Cir. 2014) (en banc) (Lombardi II)366a

Zink v. Lombardi, Case No. 14-2220, Motion to Supplement Record, Filed

September 24, 2014 .369a

Zink v. Lombardi, Case No. 14-2220, Supplemental Appendix, Filed September 24,

2014.375a

Order Denying Motion to Supplement the Record...388a

Motion for Sanctions Filed in District Court, Dec. 10, 2013..389a

Inventories of DOC drugs..410a

Zink v. Lombardi, No: 1(8thCir. 11/18/2014) (Bye, dissenting..707a-1388 (8th

Cir. 2/25/2014)(Bye, dissenting)..441a

Rousan v. Lombardi, No. 14-1919 (8thCir. 4/22/2014 (Bye, dissenting)445a

Deposition of George Lombardi448a

Worthington v. Lombardi, No.14-2220 (8th Cir. 8/1/2014)(Bye, dissenting)..533a

List of Pending Proceedings Involving Lethal Injection Protocols538a

Zink v. Lombardi, Case No. 14-2220, Appellants Opening Brief..539a

Zink v. Lombardi, Case No. 14-2220, Respondents Response Brief 616a

Zink v. Lombardi, Case No. 14-2220, Appellants Reply Brief...680a

Zink v. Lombardi, Case No. 14-2220, (8thCir. 11/18/2014) (Bye, dissenting..707a


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vi

TABLE OF AUTHORITIES

Cases

Agostini v. Felton, 521 U.S. 203 (1997) ...................................................................... 15Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................................................................ 16

Baze v. Rees, 553 U.S. 35 (2008) ............................................................................ i, 6, 7Bucklew v. Lombardi, Eighth Circuit Case No. 14-2163 ............................................. 3Casey, 518 U.S. at 354 ................................................................................................. 20Chavez v. Florida SP Warden, 742 F.3d 1267 (11thCir. 2014) ............................ 10, 11Clemons v. Crawford, 585 F.3d 1119 (8th Cir. 2009) ........................................... 10, 13Cooeyv. Strickland, 589 F.3d 210 (6th Cir. 2009)........................................................ 9Cook v. Brewer, 649 F.3d 915 (9th Cir. 2011) ............................................................ 10Hill v. McDonough, 547 U.S. 573 (2006) ............................................................. passimIn re Lombardi, 741 F.3d 888, 895-97 (8th Cir. 2014) ................................................. 6Jackson v. Danberg, 594 F.3d 210 (3rd Cir. 2010) ..................................................... 13Johnson v. City of Shelby, Mississippi, , No. 13-1318, 2014 WL 5798626 (U.S. Nov.

10, 2014) ............................................................................................................. 14, 17Jones v. Bock, 549 U.S. 199, 213 (2007) ............................................................... 14, 15Lewis v. Casey, 518 U.S. 343, 356 (1996) ............................................................. 20, 25In Re Lombardi, 741 F.3d 888, 895-97 (8th Cir. 2014) .............................................. 14In re Lombardi, 741 F.3d 903, 905 (8th Cir. 2014) ............................................. 6, 7, 16Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989) ...................................... 15Raby v. Livingston, 600 F.3d 552 (5thCir. 2010) ........................................................ 11Shalala v. Illinois Council on Long Term Care, Inc., 529 U.S. 1, (2000) ................... 15Taylor v. Lombardi, No. 14-1919 (8thCir. 4/22/2014 .................................................. 23Valle v. Singer, 655 F.3d 1223 (11thCir. 2011 ............................................................ 10

Worthington v. Lombardi, No.14-2220 (8thCir. 8/1/2014) ......................................... 25

Statutes

28 U. S. C. 2101(e) ....................................................................................................... 228 U.S.C. 1254 ........................................................................................................ 1, 25U.S. Const. Amend. VIII ............................................................. 1, 6, 7-10, 12-15, 17-19U.S. Const. Amend. XIV ................................................................................................ 2

Other Authorities

The Secrecy Behind the Drugs Used to Carry Out the Death Penalty, THEATLANTIC, Jan. 26, 2014. ...................................................................................... 18

Federal Rules of Civil Procedure................................................................................. 19U.S. Constitution ......................................................................................................... 21


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Rules

Supreme Court Rule 11 ................................................................................................. 2Federal Rules of Civil Procedure 8................................................................................ 2Federal Rules of Civil Procedure 12(b) ......................................................................... 3


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1

OPINIONS BELOW

Petitioner Leon Taylor seeks certiorari from the opinion and judgment of the

United States District Court for the Western District of Missouri entered on May 2,

2014 and May 16, 2014. The orders can be found in the case Zink v. Lombardi,

2:12-cv-4209, Docs. 437 and 443. App. p. 1a, 25a. Direct appeal of these orders is

currently pending in the Court of Appeals for the Eighth Circuit, Case No. 14-2220,

but no opinion has yet been issued.

JURISDICTION

The District Court entered its final order dismissing the case in case no. 2:12-

cv-04209 on May 16, 2014. A timely notice of appeal was filed, and the appeal is

currently pending in the Eighth Circuit Court of appeals under case number 14-

2220.

The jurisdiction of this Court is invoked under 28 U.S.C. 1254.

STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Const. Amend. VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.


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U.S. Const. Amend. XIV, Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of the state wherein they reside. No

state shall make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any state deprive any person

of life, liberty, or property, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.

United States Supreme Court Rule 11.

A petition for a writ of certiorari to review a case pending in a United States court

of appeals, before judgment is entered in that court, will be granted only upon a

showing that the case is of such imperative public importanceas to justify deviation

from normal appellate practice and to require immediate determination in this

Court.

Federal Rules of Civil Procedure 8 a) General Rules of Pleading

(a) Claim for Relief. A pleading that states a claim for relief must contain:

(1) a short and plain statement of the grounds for the court's jurisdiction,

unless the court already has jurisdiction and the claim needs no new

jurisdictional support;

(2) a short and plain statement of the claim showing that the pleader is

entitled to relief; and


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(3) a demand for the relief sought, which may include relief in the alternative

or different types of relief.

Federal Rules of Civil Procedure 12 b) How to Present Defenses.

Every defense to a claim for relief in any pleading must be asserted in the

responsive pleading if one is required. But a party may assert the following defenses

by motion:

. . .

(6) failure to state a claim upon which relief can be granted.

STATEMENT OF THE CASE

A. Missouris execution method

This petition concerns the method of execution announced by the Missouri

Department of Corrections in October 2013 and serially modified since that time.

See Zink v. Lombardi, ECF No. 2:12-cv-4209 (hereinafter ECF) Doc. 163

(noting multiple changes in the protocol); ECF Doc. Bucklew v. Lombardi, Eighth

Circuit Case No. 14-2163, Order of May 20, 2014 at 8-9 (change of IV dyes). The

state executes prisoners with a single dose of what it alleges to be pentobarbital,

made by an undisclosed and non-FDA-regulated compounding pharmacy that the

Department of Corrections (hereinafter, MDOC) has named to its execution

team, and composed of unknown ingredients whose sources the Department also

hides.


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Beginning with the execution of Michael Taylor in February 2014, the MDOC

has provided no testing data to show that the substance is in fact pentobarbital, or

that it is pure, potent, and sterile.

B. The prisoners evidence of harm

Expert evidence on the use of compounded pentobarbital is undisputed and

was attached to the prisoners second amended complaint. ECF Doc. 338. This case

began when the prisoners brought suit in the Circuit Court of Cole County,

Missouri, against a propofol-based method of execution that the Department of

Corrections announced in 2012. ECF, Doc. 1. That method, and numerous

intervening methods which preceded the current one are not at issue in this

petition, except to the extent that the States constant change in methodology

implicates the defendants obstruction of plaintiffs due process rights. Unregulated

by the FDA and of unknown origin, compounded pentobarbital presents numerous

hazards that create a substantial risk of serious, unnecessary and substantial

harm and mental anguish, according to pharmacology expert Dr. Larry D. Sasich.

ECF Doc. 338-6, App. 235a. These hazards include subpotency or super-potency;

contamination from toxins, allergens, or particles; and burning or a pulmonary

embolism resulting from failure to reach and maintain the proper pH. App. 219a;

228a. Anesthesiologist Dr. Mark Heath agrees, concluding that Missouris protocol

is replete with flaws that present a substantial risk of causing severe and

unacceptable levels of pain and suffering during the execution. ECF Doc. 338-5,

App. 251a.


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What is more, the MDOCs practice has materially worsened during the

course of the litigation. Earlier, the MDOC assured the district court that it tests its

drugs to be sure they are safe, pure, and effective, so that the prisoners did not need

to know the source of the drugs. See ECF Docs. 187-12, 191 at 1, 191-1, 212 at 3,

290-5, 290-6, 290-11, 290-13, 290 at 8. The Department made those same

assurances to this Court when it sought mandamus relief from the district courts

discovery orders: Because the chemical tests within the proper ranges, it does not

matter who made it. Additionally, the Director will not use a chemical that fails a

lab test. In re Lombardi, Eighth Cir. Case No. 13-3699 (hereinafter In re:

Lombardi, Petition for Writ of Mandamus (Dec. 13, 2013), at 16; see also Motion for

stay of district court orders (Dec. 27, 2013), at 5 (The name or the identifying

information of whether the pharmacist is part of a national chain, a local pharmacy,

or something in between, does not matter when the Court knows the end-product

was potent, pure, sterile and worked effectively.).

But the MDOC has since refused to disclose any test results, and it

successfully resisted all discovery of whether it even tests the drugs at all. See e.g.

Deposition of Matthew Briesacher (Mar. 21, 2014), at 43-44, 72-73; App. 304a-305a;

33a-334a; ECF Doc. 189 (motion for protective order). The Court is left then, with

the MDOCs word that the drugs are what it says they are, coupled with its

argument that the prisoners are speculating without benefit of the very information

that the Department refuses to provide. ECF Doc. 196 at 1 (district court noting

Catch-22 when denying stay to Allen Nicklasson). The MDOCs most recent drug


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logs, disclosed November 17, 2014, do not indicate an expiration date for the

pentobarbital shown in inventory, although expiration dates are disclosed for all

other drugs. App. 410a-441a.

C. Relevant procedural history

Some two months after the MDOC announced its pentobarbital protocol and

named its supplier a secret member of the execution team under Mo. Rev. Stat.

546.720.2, the district court ordered a limited disclosure of the Departments

pharmacy, testing laboratory, and prescribing physician. ECF Docs. 203-05.. The

Eighth Circuit court of appeals eventually vacated that order, reasoning that an

Eighth Amendment claim could not go forward under Baze v. Rees, 553 U.S. 35

(2008), without the plaintiffs proposing an alternative method of execution, that the

prisoners ex post facto claim failed as a matter of law, and that the pharmacys and

laboratorys identities were not relevant to the claims that remained. In re

Lombardi, 741 F.3d 888, 895-97 (8th Cir. 2014) (en banc) (Lombardi I), App. 351a.

The Court clarified its ruling on rehearing. It distinguished Hill v.

McDonough, 547 U.S. 573 (2006), and the Supreme Courts holding that there is no

specific pleading requirement that a prisoner must identify an alternative,

authorized method of execution to proceed in a 1983 action. In re Lombardi, 741

F.3d 903, 905 (8th Cir. 2014) (en banc) (Lombardi II), App. 368a ,quoting Hill, 547

U.S. at 582. Hilldiffered from the present case, the Court concluded, because the

prisoner in Hillconceded that other methods of lethal injection the Department

could choose to use would be constitutional, and alleged that the challenged


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procedure presents a risk of pain the State can avoid while still being able to

enforce the sentence ordering a lethal injection. Id.The Court pointed out that the

Zinkprisoners included no such allegations in their complaint. Id.

Appellants thereafter amended their complaint to include the language from

Hill. ECF Doc. 338 at 148; App.187a . They also asserted nine additional claims,

including a claim that the States obstructive tactics inhibited plaintiffs due process

rights. The district court dismissed all claims in two orders. The first order

dismissed all claims other than the one under the Eighth Amendment. ECF Doc.

437, App. 1a. As to the due process claim, the court ruled that the Defendants had

not violated due process because they had not made it impossible for plaintiffs to

file the lawsuit. Id. at 18; App. 18a. As to the Eighth Amendment claim, the court

ruled that the prisoners showed a sufficient risk of harm to proceed, but that the

prisoners could not prosecute an Eighth Amendment claim without pleading a

specific alternative method of execution that is reasonably available and less

likely to create a substantial risk of harm. Idat 8-10; App. 8a-10a. The court

deferred its ruling on the claim in order to allow the prisoners to plead a specific

alternative, which they declined to do. Id.. They explained that Bazedoes not

require a prisoner to specifically plead an alternative method, that the complaints

language from Hillmade their claim sufficient under Lombardi II, and that they

could not specify a feasible and readily implemented alternative under Baze

without discovery of the Departments attempts to obtain other lethal injection

drugs. ECF Doc. 442. The district court then dismissed the Eighth Amendment


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12:01 a.m. tomorrow, November 19, 2014. He seeks that this Court grant certiorari

prior to the issuance of judgment by the Court of Appeals.

REASONS FOR GRANTING THE WRIT

I. THE ISSUE OF EIGHTH AMENDMENT PLEADING REQUIREMENTS

IN METHOD OF EXECUTION CHALLENGES IS A QUESTION OF

GREAT IMPORTANCE THAT REQUIRES CLARIFICATION BY THIS

COURT.

A. There is confusion and disagreement among the circuits as to

what must be pled in order to state a viable Eighth Amendment

claim involving method of execution.

The rulings of circuit courts reflect a significant lack of clarity as to the

question of pleading standards for an Eighth Amendment challenge to a method of

execution. The court in Cooeyv. Strickland, 589 F.3d 210 (6th Cir. 2009), read the

language of Baze v. Rees, 553 U.S. 35, 51 (2008), that, [A] condemned prisoner

cannot successfully challenge a State's method of execution merely by showing a

slightly or marginally safer alternative to mean that, an inmate cannot question a

state's execution protocol without providing feasible, readily implemented

alternatives that significantly reduce a substantial risk of severe pain. Cooey,589

F.3d at 220. InCooey, the plaintiffs had plead an alternative protocol, but the court

determined that because it was not feasible, readily implemented and did not, in

fact significantly reduce a substantial risk of severe pain, it did not meet the


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standards set by Baze, and the plaintiff had not proven his Eighth Amendment

claim1.

In Clemons v. Crawford, 585 F.3d 1119 (8th Cir. 2009), the court addressed

the sufficiency of pleadings under the motion to dismiss standard. The opinion,

which cited Bazeas defining the standards, did not read Bazeto require plaintiffs

to plead an alternative method of execution. See also Nooner v. Norris, 594 F.3d 592

(8th Cir. 2010). Similarly, the Ninth Circuit opinions in Cook v. Brewer, 637 F.3d

1002 (9th Cir. 2011), and Cook v. Brewer, 649 F.3d 915 (9th Cir. 2011), have not

interpreted Bazeto mean that the allegation of an alternative method of execution

is required.

The Eleventh Circuits view of the issue is at best confusing. In Valle v.

Singer, 655 F.3d 1223 (11thCir. 2011), that court indicated that the Bazestandard

precluded relief where the plaintiff had not established a substantial risk of serious

harm exists or that the risk is substantial when compared to the known and

available alternatives. Id. at 1237. The court went on to find that the plaintiff had

done neither, but did not specify whether only one or both standards were required.

Similarly in Chavez v. Florida SP Warden, 742 F.3d 1267 (11thCir. 2014), the

Eleventh Circuit cited Bazefor the proposition that allegation of an alternative

method was required, but went on to emphasize that under Baze, only the standard

of substantial risk of serious harm is a threshold requirement. Id. at 1272. The

1Aside from the instant case, petitioner has found no other case where a motion todismiss was granted based on a failure to specifically plead an alternative method


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court went on to analyze only whether there was a substantial likelihood of success

on the merits on the question of whether there was a substantial risk of serious

harm, and found that a stay of execution was not warranted because the facts

presented did not indicate a substantial likelihood of success on the merits. Id.at

1273. Despite a clear indication in the statement of facts that Mr. Chavez had failed

to establish a reasonably available alternative either in his pleadings or through his

presentations in an evidentiary hearing (Id.at 1270), this fact played no role in the

courts ultimate decision or conclusion that there was not a substantial likelihood of

success on the merits. The Eleventh Circuits position on the issue of whether an

alternative method must be pled is therefore still highly in flux.

The Fifth Circuits view is similarly in flux. In Raby v. Livingston, 600 F.3d

552, 560-561 (5thCir. 2010), while the Court seems to have taken the position that

the test under Bazerequires an assessment of the risk of pain when compared with

other known, available alternatives, it did not analyze whether the existence of

available alternatives must be specifically alleged or proven. Rather, the court

found, as in Chavez,that the plaintiffs had failed to demonstrate that Texass

chosen protocol create[d] a demonstrated risk of severe pain. Id.at 560.

The case that seems to most closely track this Courts decision in Bazeis the

Fourth Circuits decision in Emmett v. Johnson, 532 F.3d 291 (4thCir. 2008). In that

case, as in Baze, the Virginia plaintiff had proposed certain alternatives and

modifications to the current protocol in an attempt to prove that the chosen

in the complaintalleging an Eighth Amendment violation.


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execution method created an unnecessary risk of harm. In defining the standard set

out in Bazefor a viable Eighth Amendment claim, the Fourth Circuit did not state

that it was necessary that plaintiffs plead an alternative execution methodology:

Under the Bazestandard, however, the relevant question is whether

Emmett has produced evidence sufficient to meet his heavy burden,

id.at 1533 (internal quotation marks omitted), of demonstrating that

Virginia's existing protocol presents a substantial or objectively

intolerable risk of serious harm to Emmett, id.at 1531 (internal

quotation marks omitted). Emmett must point to evidence

demonstrating that the conditions presenting the risk must be sure or

very likely to cause serious illness and needless suffering, and give rise

to sufficiently imminent dangers. Id.at 153031 (internal quotation

marks omitted).

Later in the opinion however, the Court analyzed the alternative

methodologies proposed by the plaintiffs. Citing language in Baze, the Court

stated:

Emmett cannot successfully challenge Virginias method of execution

merely by showing a slightly or marginally safer alternative. Id.at

1531. Rather, he is required to demonstrate that the alternative

procedure is feasible, readily implemented, and in fact significantly

reduce[s] a substantial risk of severe pain.

The court then went on to find that the alternatives actually proposed by

Emmett did not substantially reduce the risk of severe pain and were not readily

available, and therefore it could not be said, based on the States failure to adopt the

proposed alternative method, that the risk of harm was unreasonable or objectively

intolerable. Id.


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The Fourth Circuits opinion makes clear the differing opinions in the circuits

regarding this courts language in Baze regarding the need for a feasible alternative

protocol. The Fourth Circuit seems to be looking at the alternative protocol in for its

evidentiary value in determining whether the risk of pain utilizing the proposed

protocol is substantial or objectively intolerable. This reading of Bazesuggests

that it is not necessary to assert an alternative protocol in order to make an Eighth

Amendment Claim, but that if one does chooseto assert an alternative protocol, it is

not enough that the alternative is marginally safer, if one seeks to use the

alternative to establish that the risk associated with the chosen protocol is

intolerable. Rather, for an alternative protocol to establish that the chosen

protocol is unacceptable, the complainant must establish that the alternative is

feasible, readily implemented, and significantly reduce a substantial risk of severe

pain. If a claimant does not do that, then the existence of an alternative protocol

does not establish that the risk of pain of the adopted protocol is unacceptable under

the Eighth Amendment. This would appear to be in accord with the Third Circuits

view as well. See Jackson v. Danberg, 594 F.3d 210, 229 (3rd Cir. 2010) (Baze

explained that an inmate seeking to establish an Eighth Amendment violation

based on the existence of an alternativemust prove that the alternative is feasible,

readily implemented, and in fact significantly reduce[s] a substantial risk of severe

pain.) (Emphasis added.) This would also seem to comport with the Eighth and

Ninth Circuit post-Bazedecisions in Clemmons, Noonan, Cookand Cook,where no

alternative was proposed, and the courts did not read Bazeto require that one must


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be.As established above, the Sixth Circuit and the Eighth circuit in Lombardi

disagreed. Other circuits have taken varying views on the issue, but do not appear

to have established clear rules.

The alternative interpretations of Bazeare significant, as they set very

different standards throughout the country for asserting and pleading Eighth

Amendment claims. This Court should grant certiorari in order to fully and clearly

resolve this issue.

B. This court should grant certiorari because the district courts

opinion and currently prevailing Eighth Circuit precedent is in

conflict with this Courts decisions in

Baze v. Rees

, 553 U.S. 35

2008); Jones v. Bock, 549 U.S. 199, 213 2007), Hill v.

McDonough

, 547 U.S. 573 2006) and

Johnson v. City of Shelby

Mississippi

, , No. 13-1318, 2014 WL 5798626 U.S. Nov. 10,

2014).

The district courts holding misreads Baze v. Rees, 553 U.S. 35 (2008). In

Jones v. Bock, 549 U.S. 199, 213 (2007), this Court held,

In Hill v. McDonough, 547 U.S. 573 (2006), we unanimously rejected aproposal that 1983 suits challenging a method of execution mustidentify an acceptable alternative: Specific pleading requirements aremandated by the Federal Rules of Civil Procedure, and not, as a generalrule, through case-by-case determinations of the federal courts Id., at582).

But Bazedid not distinguish, or even cite, Jonesor Hill. The Court in Baze

was confronted with the specific claim that Kentuckys execution protocol violated

the Eighth Amendment because the state could easily change to a one-barbiturate

method or at least discontinue the use of the paralytic agent pancuronium bromide.


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Id. at 56-57. That specific claim required the prisoner to show that the proposed

alternative was feasible, available, and likely to reduce a significant risk of pain. Id.

at 52, 61. The Baze opinion simply addressed the claim before this Court. It did not

erect a new standard for pleading or proving everyEighth Amendment claim

relating to manner of execution. In order to do so, it would have had to overrule

Jonesand Hill. It did not.

There is a presumption that this Court does not overrule previous precedent

sub silentio.Shalala v. Illinois Council on Long Term Care, Inc., 529 U.S. 1, (2000)

(This Court does not normally overturn, or so dramatically limit, earlier authority

sub silentio.);Agostini v. Felton, 521 U.S. 203, 237 (1997); Quijas v. Shearson/Am.

Express, Inc., 490 U.S. 477, 484 (1989) (If a precedent of this Court has direct

application in a case, yet appears to rest on reasons rejected in some other line of

decisions, the Court of Appeals should follow the case which directly controls,

leaving to this Court the prerogative of overruling its own decisions.)

Petitioners complaint is materially different than that in Baze. Their claim is

that the Missouri execution protocol violates the Eighth Amendment because it

creates a substantial risk of serious harm, an objectively intolerable risk of harm

that prevents prison officials from pleading that they were subjectively blameless

for purposes of the Eighth Amendment, because of the states use of unreliable and

illegal drugs, not because of the states failure to use an alternative method. Baze

simply did not hold that the only way to demonstrate a substantial risk of serious

harm is to show that there is an available alternative. That was one argument


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advanced by the Kentucky plaintiffs, but it was not held to be dispositive, because

the Court approved the existing Kentucky protocol.

In its order denying rehearing in Lombardi II, 741 F.3d 903; App. 366a, the

Eighth Circuit implicitly conceded that Hill v. McDonough, 547 U.S. 573 (2006), is

still good law, but attempted to distinguish Hillby noting that in that case, the

petitioner had stated that the challenged procedure presents a risk of pain the

State can avoid while still being able to enforce the sentence ordering a lethal

injection. Id., at 905; App. 368a. Petitioners pleadings never suggested that the

State cannot constitutionally use lethal injection to execute them. Their prayer for

relief in each of their complaints requests a declaratory judgment that the lethal

injection protocol issued by respondents violates their constitutional rights, and an

injunction against the use of that protocol. Like the petitioners in Hilland for that

matter in Baze, petitioners here have never denied that the state can use lethal

injection to execute them. The Eighth Circuits attempt to circumvent the clear

language of Hillis a distinction without a difference.

In an attempt to avoid the conclusion that the Eighth Circuits order on

rehearing in Lombardi IIeliminated the requirement of a specific alternative, the

U.S. District courts order dismissing the case pointed to this Courts decision in

Ashcroft v. Iqbal, 556 U.S. 662 (2009). The district court reasoned that Iqbal

requires the prisoner to specify a reasonably available alternative that is less likely

to create a substantial risk of harm, and that the Hilllanguage is a mere naked

assertion that does not create a plausible claim for relief.


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Any suggestion that this is true is eliminated by this Courts recentper

curiamdecision in Johnson v. City of Shelby,Mississippi, S. Ct. , No. 13-1318,

2014 WL 5798626 (U.S. Nov. 10, 2014). There, this Court emphasized that a

complaint may not be dismissed for failure imperfectly to state a legal theory as

long as its factual basis makes the substance of the claim clear and reiterated that

the Federal Rules of Civil Procedure are designed to discourage battles over mere

form of statement. (Citing Advisory Committee Report of October, 1955, reprinted

in 12A C. Wright, A. Miller, M. Kane, R. Marcus, and A.Steinman, Federal Practice

and Procedure, p. 644 (2014 ed.)). Federal pleading rules call for a short and plain

statement of the claim showing that the pleader is entitled to relief, . . . they do not

countenance dismissal of a complaint for imperfect statement of the legal theory

supporting the claim asserted. Id.(citing Fed. Rule Civ. Proc. 8(a)(2)). This

Courts summary reversal in Johnsonclearly indicates that that pleading standard

adopted by the district court is incorrect. Plaintiffs second amended complaint

conceded that other constitutional methods of execution exist. Under Johnson, any

failure to further specify can be considered at most nothing more than, an

imperfect statement of the legal theory supporting the claim asserted and does not

merit dismissal. As the district court itself acknowledged, plaintiffs had sufficiently

pled an Eighth Amendment claim with regard to the risk and level of pain that the

current execution protocol carries. Johnsonestablishes that the Eighth Amendment

claim was sufficiently pled, and should have survived dismissal.


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The effect of the Eighth Circuits erroneous construction of Bazeis to deny

petitioners discovery in their civil suit. As the dissenting judge in Lombardi I

observed,

The challenge of proposing a readily available alternative methodseems nearly impossible if the prisoners are denied discovery and, thus,unable to ascertain even basic information about the current protocol.The proposition that a plaintiff must propose an alternative method forhis own execution in order to state a claim for relief under the Eighth

Amendment is unreasonable.

741 F.3d at 900, App. 363a, Bye, J., dissenting.

Effectively, then, the Eighth Circuits construction in In re: Lombardi

overrules Baze itself, and the district courts order upholds this. If a plaintiff, before

conducting discovery, must allege an available alternative to the current protocol,

then it will in effect be impossible to prosecute an Eighth Amendment claim against

any method of execution. Since Baze(as well as Hill v. McDonough, 547 U.S. 573

(2006)) recognized that such a claim is permissible under 1983, the Eighth

Circuits reading is contrary to this Courts opinions in both cases.

The ruling of the district court makes the Eighth Amendment all but

inoperable in lethal injection cases:

The pleading standard advanced by the majority would require theprisoners to identify for the Director a readily available alternativemethod . . . for their own executions. Now, any individual wishing to

challenge a states execution method as unconstitutional must identifya readily available alternative method for their own deaths before anydiscovery has been conducted to survive a Rule 12(b)(6) motion todismiss. The challenge of proposing a readily available alternativemethod seems nearly impossible if the prisoners are denied discoveryand, thus, unable to ascertain even basic information about the currentprotocol.


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Id.at 900; App. 363a (Bye, J., dissenting).

The ruling below cries out for review and reversal by the Supreme Court

before another court in another state adopts the dubious reasoning applied by the

majority here. Andrew Cohen, The Secrecy Behind the Drugs Used to Carry Out

the Death Penalty, THE ATLANTIC, Jan. 26, 2014.

This Court should grant certiorari in order to resolve the question of what the

pleading standards for an Eighth Amendment method of execution claim are

pursuant to Bazeand the Federal Rules of Civil Procedure. Further delay will only

result in the deaths of more plaintiffs before they have an opportunity to litigate

their constitutional claims.

II. THIS COURT SHOULD GRANT CERTIORARI AS TO THE DUE

PROCESS ISSUE BECAUSE THE CONDUCT OF STATE ACTORS

WHICH WAS UPHELD BY THE DISTRICT COURT AND HAS BEEN

SANCTIONED BY THE EIGHTH CIRCUITS RECENT RULINGS IS SO

EGREGIOUS AS TO REQUIRE THE EXERCISE OF THIS COURTS

SUPERVISORY POWER.

In the Courts below, respondents minimized their own obstructionist conduct,

and argued essentially that they have done nothing to make it physically impossible

for the plaintiffs to file a lawsuit, and therefore have committed no due process

violations. Zink v. Lombardi, Case No. 14-2220, Respondents Brief at 42, filed

8//27/2014 (hereinafter, Response Brief), App. 616a. The district court sanctioned

this approach, finding that the existence of the lawsuit that raised the claims before


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the court was proof of the fact that it was possible to file a lawsuit and that there

was therefore no due process violation under Lewis v. Casey, 518 U.S. 343, 356

(1996). ECF Doc. 437 at 17; App. 17a. The Eighth Circuit has also repeatedly

approved of this misconduct, denying motions for stays of executions despite being

presented repeatedly with information regarding these issues. Most recently, the

Eighth Circuit denied a motion filed by plaintiffs to supplement the record with

further evidence of defendants misconduct, despite significant discussion of the

issue at oral argument before the en banc court. See Zink v. Lombardi, Case No. 14-

2220, Order issued on November 14, 2014, App. 388.

However, defendants egregious conduct has consisted of far more than

modifying execution procedures in a manner [that] . . . made it more difficult to

attack the procedures. Response Brief at 42, App. 664a. Nor does it constitute

merely a failure to, take affirmative steps to enable a prisoner to discover

grievances or litigate effectively once in court. Id. (citing Casey, 518 U.S. at 354).

Rather, defendants have repeatedly and continuously taken affirmative and

proactive steps to obstruct pursuance of this lawsuit and to hide, conceal, and

affirmatively mislead defendants regarding the facts of the protocol and processes

surrounding executions, in a manner that is clearly violative of due process.

Plaintiffs first began documenting these violations in a motion for sanctions

filed in the district court on December 10, 2013. App. 389a. In that motion,

plaintiffs outlined the series of violations of discovery rules and court orders

regarding discovery that Defendants had carried out in an effort to avoid their


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discovery responsibilities and delay the lawsuit continuously. In May of the next

year, Defendants attorney, Attorney General Chris Koster, made a public

statement criticizing the courts for the unnecessary delay in the lawsuit that had

been caused by his own office, and threatening to bring back the gas chamber if

executions did not resume soon. Shortly thereafter, the Missouri Supreme Court set

execution dates on two plaintiffs, Alan Nicklasson and Joseph Franklin. These

executions were carried out, but not before a number of new iterations in the

execution protocol. In an initial order granting a motion for a stay of execution, the

Judge then presiding over the case, the Honorable Nanette Laughrey, lamented the

impossible position the state had put the plaintiffs in throughout the litigation in

terms of their ability to raise claims in sufficient time to merit relief:

Plaintiffs were afforded no opportunity to inspect the qualifications ofthis compound pharmacy. Defendants cannot repeatedly change theexecution protocol, including within five days of a scheduled execution,

and rely on Plaintiffs lack of time to research the protocols effects . . . .Defendants also suggest that because the Supreme Court has neverfound that any execution protocol violates the U.S. Constitution, thisCourt should not grant a stay here. But absent some directive from ahigher court that these execution protocol claims are frivolous andneed not be decided on their merits, the Court will continue to followprocedures in place for handling all litigation in the federal courts,which cannot be done efficiently if the Department keeps changing howthey plan to execute the Plaintiffs. Finally, litigation is not a game ofchess. Hill was intended to be a shield to protect defendants fromabusive litigation practices by death row inmates. But it was never

intended to be used as a sword permitting defendants to disrupt anddelay the litigation process and then complain that time is up. Neitherthe Plaintiffs nor the Court have been able to address the merits ofPlaintiffs' claim that the Defendants have adopted an executionprotocol that violates the U.S. Constitution, because the Defendantskeep changing the protocol that they intend to use. It would be asubstantial departure from the way in which law suits are generally


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handled by this Court, to allow Defendants to succeed with thisstrategy. Rather, the pending dispute between the parties should beresolved on the merits after a reasonable opportunity for both sides tobe heard, followed by a prompt, final order resolving the dispute. That

is how it is normally done in America and it is a system that hasworked quite well.

ECF Doc. 163 at 10 -12; App. 35a 37a .

The State continued to resist all legitimate efforts in court to determine

information about the execution drugs, their supplier, or the qualifications of the

party supplying them. As Judge Kermit Bye (joined by Judges Kelly and Murphy)

pointed out in a dissenting opinion on a stay motion, just after the defendants had

changed the supplier of the execution drugs on the eve of Taylors execution:

But Taylor is in an obviously disadvantaged position because Missourihas, perhaps drastically, changed how Taylor will be executed bysubstituting any number of new components and actors within the lastweek. Missouri is unable to execute death row inmates with an FDA-approved form of injectable pentobarbital and thus uses compoundingpharmacies to replicate the drug. Yet, with only one week before

Taylor's scheduled execution, Missouri has changed compoundingpharmacies. . . . One must wonder at the skills of the compoundingpharmacist. In fact, from the absolute dearth of information Missourihas disclosed to this court, the "pharmacy" on which Missouri reliescould be nothing more than a high school chemistry class. Even ifMissouri had provided basic guarantees of a regulated lab and licensedpharmacists, the skill-level and experience in compounding of thepharmacist in question is vital to ensuring Taylor is executed in a waywhich comports with the Eighth Amendment. Missouri has no qualmsannouncing a new pharmacy will provide the alleged pentobarbital, yetthat pharmacy and its pharmacists presumably have no experience

compounding injectable pentobarbital for executions. . . . Missouri hasyet to provide information on the source of any drugs to be used toexecute Taylor, leaving open the possibilities the ingredients do notmeet legal or medical standards. . . . Because Missouri has againchanged its procedure for executions, even the most well-trained andwell-intentioned pharmacist may be unable to properly testcompounded pentobarbital in such a short amount of time. Missouri is


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actively seeking to avoid adequate testing of the alleged pentobarbital,which raises substantial questions about the drug's safety andeffectiveness. Although there were concerns with previous laboratorytesting, at least some laboratory testing was conducted. Now, Missouri

has provided no indication any testing of the new product has occurred.

Zink v. Lombardi, No: 14-1403 at 2-3 (8thCir. 2/25/2014)(Bye, dissenting), App. 442a

443a.

Since Micheal Taylors execution, the State has continued to withhold any

information about lab testing, source or supply, or the safety and effectiveness of

the drugs being used. Approximately, two months after Taylors execution, Eighth

Circuit Judges Bye, Murphy, and Kelly again lamented:

Missouri continues to frustrate the efforts of inmates . . . to investigatethe method of execution the State plans to use to end their lives.Missouri shields these shadow pharmacies - and itself- behind thehangman's cloak by refusing to disclose pertinent information to theinmates. This Court is largely left to speculate as to the source andquality of the compounded pentobarbital - or whatever chemicalcocktail du jour Missouri elects to serve this time around.

Taylor v. Lombardi, No. 14-1919 at 2(8thCir. 4/22/2014 (Bye, dissenting),

App. 446a. In the same dissenting opinion, Judge Bye noted, rise of

questions regarding drug efficacy and secrecy in other States outside our

Circuit, including Georgia, Ohio, Oklahoma, Louisiana, and Texas. Id.

Following botched executions in Ohio, Oklahoma, and Arizona, the issues in

these other states came to light in arguments that the botched executions counseled

caution in continuing to proceed Missouri. In response to these arguments, the

State, in pleadings filed in the Eighth Circuit and in this Court argued that these

executions bore no relevance to what was occurring in Missouri because they did not


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entail use of the same drugs or other personnel as was being used in Missouri. See

e.g.Zink v. Lombardi, Case No. 14-2220, Response in Opposition to John Winfields

Motion for Stay of Execution, Filed 6/06/2014 (asserting that comparisons could not

be made between Missouri and the botched executions in other states, because,

among other things, Missouri used different drugs).

However, as became clear in September, this statement misrepresented the

states execution practice. At that time, it was revealed that Missouri had been

injecting much higher than normal dosages of midazolam intravenously while

prisoners were strapped to the gurney and without their consent prior to the

curtains being open and to the time the execution was actually said to begin. See

App. 375a.

The statements made by the Attorney Generals office in pleadings

concerning the use of the drug midazolam were not the only statements aimed at

intentionally misleading plaintiffs and the courts as to Missouris execution

protocol. The intravenous use of midazolam contradicts the sworn testimony of Mr.

George Lombardi, the head of the DOC. In January of this year, he testified about

the DOCs use of midazolam. At one point, he flatly testified that DOC does not use

midazolam: Q. Why will there be no use of [midazolam] in an execution? A.

Because we have no intention to do that . . . Im testifying right now to tell you that

will not be the case. We will not use those drugs. Deposition of George Lombardi,

taken 1/17/2014 at 21; App. 468a. Elsewhere, he had testified that midazolam would


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be offered to an inmate, usually a few hours before the scheduled execution. Id.

at 53; App. 500a. Mr. Lombardis testimony was, at best, highly misleading.

While the Attorney Generals office alleged that the drug, administered

intravenously in dosages that were 3 15 times the normal dosage amount, was

simply a pre-execution sedative, it is clear that this is no justification. Rather these

most recent actions misleading plaintiffs and hiding the truth are part of what

Judge Bye has called a troubling pattern that encompasses a blatant disregard

for a federal courts responsibility to review the constitutionality of an execution.

Worthington v. Lombardi, No.14-2220 at 2 (8thCir. 8/1/2014)(Bye, dissenting), App.

534a. This Court should grant certiorari as to this question because the conduct of

the state in actively obstructing plaintiffs attempts to discover and present

legitimate claims to this court, and the Eighth Circuits repeated approval of that

action requires exercise of the supervisory power of this Court. Moreover, it is

necessary for this court to further clarify that the limits of due process protections

placed by Lewis v. Casey, 518 U.S. 343, 356 (1996), do not give state actors a blank

check to obstruct a prisoners legitimate efforts to investigate and seek redress in

the courts for violations of their constitutional rights.

III. This Court should grant certiorari at this time because the case is of

imperative public importance and requires immediate determination by

this Court.

Cases pending in in the United States Courts of Appeals may be reviewed,

[b]y writ of certiorari granted upon the petition of any party to any civil or criminal


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case, before or afterrendition of judgment or decree. 28 U.S.C. 1254a. (emphasis

added). Supreme Court Rule 11 provides that such a petition will be granted only

upon a showing, that the case is of such imperative public importance as to justify

deviation from normal appellate practice and to require immediate determination in

this Court.

Since November of last year, the State of Missouri has been scheduling

executions at a rate of one execution per month, and has carried them out in all but

two cases, those of Mark Christeson and Russell Bucklew, both of which this Court

halted. The state has executed ten prisoners since November of 2014. With the case

still pending in the Eighth Circuit, these issues are coming before this Court once

per month. It is important that this Court speak on this issue so as to give guidance

to inmates and litigants.

Moreover, this issue affects inmates in multiple states. Litigation attacking

state methods of execution is pending in Alabama, Arizona, Arkansas, Florida,

Kentucky, Louisiana, Ohio, Oklahoma, and Tennessee in addition to Missouri.2

According to current information from the Death Penalty Information Center, there

are a total of 1,191 death-sentenced prisoners in these ten states. The problem is of

great concern and importance.

Moreover, the lack of clarity in the courts as to Eighth Amendment pleading

standards and what limits due process places on state actors rights to hide

information about methods of executions that is highly relevant to Eighth


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The unique procedural posture of this case also makes the grant of certiorari

appropriate at this time. In In re: Lombardi, the same parties (less those who have

now been executed) were before the Eighth Circuit on an writ filed by the state, and

the Eighth Circuit then decided the Bazeissue currently before this Court. The

repeated denials of stays of executions since that time without opinion make clear

that the Eighth Circuit does not soon intend to change course on this issue.

Meanwhile, Missouri and other states continue to kill at a rapid pace under

an Eighth Amendment structure that is plagued with confusion and inconsistent

applications across the country. These are issues that must be resolved NOW. As

Judge Bye stated today in his dissent from the denial of a stay of execution:

Given the record evidence regarding the substantial risk of severe painand suffering caused by using "unregulated, unpredictable andpotentially unsafe drugs," and what is at stake for Taylor, Missourishould answer the questions surrounding its mystery compound, or atthe very least afford Taylor the opportunity to obtain such answers for

himself by testing the intended compound, before Missouri executeshim. Any constitutional infirmities in Missouri's secretive protocolrevealed after Taylor's execution will provide no relief to him or othersalready executed.

Zink v. Lombardi, Case No. 14-2220 at 4 (8thCir. Nov. 18, 2014); App. 707a.

The issues are fully developed and ripe for decision, and certiorari should be

granted at this time.


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CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,

ELIZABETH UNGER CARLYLE

(Counsel of Record)6320 Brookside Plaza #516

Kansas City, Missouri 64113(816) 525-6540

KATHRYN B. PARISHSINDEL SINDEL & NOBLE, P.C.8000 Maryland Ave., Suite 350Clayton, Missouri 63105(314) 721-6040

Counsel for Petitioners

Documents

Prejudgment Cert Final