Ernest Lee Johnson v. George A. Lombardi; David Dormire; Terry Russell

United States Court of Appeals
For the Eighth Circuit
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No. 15-3420
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Ernest Lee Johnson
lllllllllllllllllllll Plaintiff - Appellant
v.
George A. Lombardi; David Dormire; Terry Russell
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the Western District of Missouri - Jefferson City
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Submitted: October 29, 2015
Filed: October 30, 2015
[PUBLISHED]
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Before SMITH, COLLOTON, and GRUENDER, Circuit Judges.
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PER CURIAM.
Death row inmate Ernest L. Johnson moves for a stay of his execution
scheduled for November 3, 2015, at 6:00 p.m., pending full briefing and argument of

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his appeal from the district court’s 1 dismissal of his complaint filed under 42 U.S.C.
§ 1983. We deny his motion for a stay.
I.
Johnson underwent a craniotomy surgical procedure in 2008 to remove a brain
tumor. After this surgery, a portion of the tumor remained. The surgery also resulted
in a brain defect and scarring issue. Consequently, Johnson has suffered from several
seizures in the last few years. After the State of Missouri scheduled his execution,
Johnson filed a § 1983 complaint alleging that Missouri’s lethal-injection protocol
would be unconstitutional as applied to him because of his medical condition.
Specifically, Johnson alleged that pentobarbitol, the drug Missouri uses to execute
inmates, could trigger a seizure and cause him severe pain. In his complaint, Johnson
identified lethal gas as an alternative method of execution permitted under Missouri
law. See Mo. Rev. Stat. § 546.720.1.
The district court entered an order denying temporary injunctive relief and
dismissing Johnson’s complaint. The court determined that Johnson did not state a
claim upon which relief could be granted because he failed plausibly to plead
sufficient facts establishing the existence of a feasible and readily implementable
method of execution. See Fed. R. Civ. Pro. 12(b)(6); Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). Johnson now moves for a stay pending appeal.
II.
“[A] stay of execution is an equitable remedy. It is not available as a matter of
right, and equity must be sensitive to the State’s strong interest in enforcing its
1The Honorable David Gregory Kays, Chief Judge, United States District
Court for the Western District of Missouri.
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criminal judgments without undue interference from the federal courts.” Hill v.
McDonough, 547 U.S. 573, 584 (2006). “[I]nmates seeking time to challenge the
manner in which the State plans to execute them must satisfy all of the requirements
for a stay, including a showing of a significant possibility of success on the merits.”
Id. It is not enough merely to file an action that can proceed under § 1983. Id. at 583-
84. A movant must present evidence to show a significant possibility of success on
the merits of his claim. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per
curiam).
To succeed on the merits of his claim, Johnson must show that Missouri’s
lethal-injection method of execution, as applied to him, violates the Eighth and
Fourteenth Amendments. See Clayton v. Lombardi, 780 F.3d 900, 901 (8th Cir.
2015). Based on the record before us, we conclude that Johnson has not shown a
significant possibility of success.
A prisoner may successfully challenge a method of execution under the Eighth
Amendment only if he “establish[es] that the method presents a risk that is ‘sure or
very likely to cause serious illness and needless suffering, and give[s] rise to
sufficiently imminent dangers.’” Glossip v. Gross, 576 U.S. ---, 135 S. Ct. 2726, 2737
(2015) (quoting Baze v. Rees, 553 U.S. 35, 50 (2008)). “To prevail on such a claim,
‘there must be 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.’” Id. (quoting Baze, 553 U.S. at
50). A prisoner “cannot successfully challenge a State’s method of execution merely
by showing a slightly or marginally safer alternative.” Id. (quoting Baze, 553 U.S. at
51). Instead, a prisoner must identify an alternative that is “feasible, readily
implemented, and in fact significantly reduce[s] a substantial risk of severe pain.” Id.
(quoting Baze, 553 U.S. at 52).
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Under this standard, Johnson’s arguments fall short. We conclude that Johnson
has not shown a significant possibility of success on his claim that the method of
execution used by Missouri “presents a risk that is sure or very likely to cause serious
illness and needless suffering.” Id. at 2737. The weakness of his contention is
evidenced by the vagaries, hypotheticals, and speculation pled in his complaint.
Johnson alleges that his condition raises a “significant potential” that pentobarbital
will “promot[e]” a seizure and that such a seizure “can result in significant muscle
pain.” Such averments do not satisfy the demanding requirement that Johnson show
that unnecessary suffering is sure or very likely to occur. See id. The attached
affidavit of Dr. Joel Zivot fails to show a likelihood of success under the Eighth
Amendment standard. Dr. Zivot notes that seizures “may be induced” as a result of
the pentobarbital injection. And he notes that pentobarbital has the potential to
promote a seizure. These equivocal statements do not sufficiently show a “substantial
risk of serious harm.” Id. at 2737 (emphasis added). Conspicuously absent from Dr.
Zivot’s affidavit is any clear statement that significant pain is “sure or very likely” to
occur if the state executes Johnson using pentobarbital. Although Dr. Zivot later uses
stronger language in a concluding paragraph, the conclusion is based expressly on
earlier findings that are insufficient.
In addition, Johnson has not shown a significant possibility of success because
he has not identified another execution method that satisfies the Eighth Amendment
standard. Johnson’s threadbare assertion that lethal gas is legally available in
Missouri is not the same as showing that the method is a feasible or readily
implementable alternative method of execution. Indeed, nowhere in Johnson’s
complaint does he plead that Missouri could readily implement the lethal-gas method.
Moreover, Johnson failed to offer any facts to support his conclusory allegation that
lethal gas would reduce significantly the substantial and unjustifiable risk of pain. See
Glossip, 135 S. Ct. at 2737 (noting that a plaintiff must “show that the risk is
substantial when compared to the known and available alternatives”) (emphasis
added); Zink v. Lombardi, 783 F.3d 1089, 1098 (8th Cir. 2015) (“Legal conclusions
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and threadbare recitations of the elements of a cause of action supported by mere
conclusory statements are not entitled to a presumption of truth when considering the
sufficiency of a complaint.”) (internal quotation omitted). Dr. Zivot’s affidavit does
not suggest that seizures would be any less likely to occur if Johnson were to be
executed using lethal gas. We thus conclude that Johnson is unlikely to prevail on the
merits because he does not sufficiently identify an alternative method of execution.
In reaching our conclusion, we are mindful that the Supreme Court granted a
stay pending appeal in Bucklew v. Lombardi, 572 U.S. ---, 134 S. Ct. 2333 (2014), in
light of allegations and evidence that lethal injection combined with a unique health
condition created a substantial risk of severe pain. But Johnson’s case is different.
Bucklew involved a district court’s sua sponte dismissal of a complaint despite the fact
that Bucklew had presented stronger evidence that the lethal-injection protocol would
create a risk of severe pain as a result of his medical condition. See Bucklew v.
Lombardi, 783 F.3d 1120, 1128 (8th Cir. 2015). Indeed, the record in Bucklew
included a concession from the state that the plaintiff had proposed an available
alternative procedure that would have eliminated certain risks of unnecessary
suffering. See Bucklew v. Lombardi, 783 F.3d 1120, 1128 (8th Cir. 2015). No such
concession exists in this case. And, as stated above, Johnson has provided
significantly weaker, speculative evidence regarding the risk of unnecessary harm.
III.
Given the record before us and the State’s strong interest in enforcing its
criminal judgment without undue interference, we deny the motion for stay of
execution pending appeal.
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