Submitted: February 2, 2018
from United States District Court for the Western District of
Missouri - Kansas City
WOLLMAN, LOKEN, and COLLOTON, Circuit Judges.
issue is whether the Eighth and Fourteenth Amendments, as
applied, bar Missouri officials from employing a procedure
that is authorized by Missouri statute to execute Russell
March 2006, Bucklew stole a car; armed himself with pistols,
handcuffs, and a roll of duct tape; and followed his former
girlfriend, Stephanie Ray, to the home of Michael Sanders,
where she was living. Bucklew knocked and entered the trailer
with a pistol in each hand when Sanders's son opened the
door. Sanders took the children to the back room and grabbed
a shotgun. Bucklew began shooting. Two bullets struck
Sanders, one piercing his chest. Bucklew fired at
Sanders's six-year-old son, but missed. As Sanders bled
to death, Bucklew struck Ray in the face with a pistol,
handcuffed Ray, dragged her to the stolen car, drove away,
and raped Ray in the back seat of the car. He was apprehended
by the highway patrol after a gunfight in which Bucklew and a
trooper were wounded.
Missouri state court jury convicted Bucklew of murder,
kidnaping, and rape. The trial court sentenced Bucklew to
death, as the jury had recommended. His conviction and
sentence were affirmed on direct appeal. State v.
Bucklew, 973 S.W.2d 83 (Mo. banc 1998). The trial court
denied his petition for post-conviction relief, and the
Supreme Court of Missouri again affirmed. Bucklew v.
State, 38 S.W.3d 395 (Mo. banc 2001). We subsequently
affirmed the district court's denial of Bucklew's
petition for a federal writ of habeas corpus. Bucklew v.
Luebbers, 436 F.3d 1010 (8th Cir. 2006). The Supreme
Court of Missouri issued a writ of execution for May 21,
2014. Bucklew filed this action under 42 U.S.C. § 1983,
alleging that execution by Missouri's lethal injection
protocol, authorized by statute, would constitute cruel and
unusual punishment in violation of the Eighth and Fourteenth
Amendments as applied to him because of his unique medical
condition. Bucklew appeals the district
court's grant of summary judgment in favor of the
state defendants because Bucklew failed to present adequate
evidence to establish his claim under the governing standard
established by the Supreme Court in Baze v. Rees,
553 U.S. 35 (2008), and Glossip v. Gross, 135 S.Ct.
2726 (2015). Reviewing the grant of summary judgment de
novo, we affirm.
method of execution is by injection of a lethal dose of the
drug pentobarbital. Two days before his scheduled execution
in 2014, the district court denied Bucklew's motion for a
stay of execution and dismissed this as-applied action
sua sponte. On appeal, a divided panel granted a
stay of execution, Bucklew v. Lombardi, 565
Fed.Appx. 562 (8th Cir. 2014); the court en banc vacated the
stay. Bucklew applied to the Supreme Court for a stay of
execution, and the Court issued an Order granting his
application "for stay pending appeal in the Eighth
Circuit." This court, acting en banc, reversed the
sua sponte dismissal of Bucklew's as-applied
Eighth Amendment claim and remanded to the district court for
further proceedings. Bucklew v. Lombardi, 783 F.3d
1120, 1128 (8th Cir. 2015) ("Bucklew I").
On the same day, the en banc court affirmed the district
court's dismissal on the merits of a facial challenge to
Missouri's lethal injection protocol filed by several
inmates sentenced to death, including Bucklew. Zink v.
Lombardi, 783 F.3d 1089, 1114 (8th Cir.), cert
denied, 135 S.Ct. 2941 (2015).
decision in Bucklew I set forth in considerable
detail the allegations in Bucklew's as-applied complaint
regarding his medical condition. 783 F.3d at 1124-26. Bucklew
has long suffered from a congenital condition called
cavernous hemangioma, which causes clumps of weak, malformed
blood vessels and tumors to grow in his face, head, neck, and
throat. The large, inoperable tumors fill with blood,
periodically rupture, and partially obstruct his airway. In
addition, the condition affects his circulatory system, and
he has compromised peripheral veins in his hands and arms. In
his motion for a stay of execution in Bucklew I,
Dr. Joel Zivot, a board-certified anesthesiologist . . .
concluded after reviewing Mr. Bucklew's medical records
that a substantial risk existed that, because of Mr.
Bucklew's vascular malformation, the lethal drug will
likely not circulate as intended, creating a substantial risk
of a "prolonged and extremely painful execution."
Dr. Zivot also concluded that a very substantial risk existed
that Mr. Bucklew would hemorrhage during the execution,
potentially choking on his own blood -- a risk greatly
heightened by Mr. Bucklew's partially obstructed airway.
* * * * *
[The Department of Corrections has advised it would not use a
dye in flushing the intravenous line because Dr. Zivot warned
that might cause a spike in Bucklew's blood pressure.]
Reactionary changes at the eleventh hour, without the
guidance of imaging or tests, create a substantial risk to
Mr. Bucklew, who suffers from a complex and severe medical
condition that has compromised his veins.
* * * * *
The DOC seems to acknowledge they agree with Dr. Zivot that
Mr. Bucklew's obstructed airway presents substantial
risks of needless pain and suffering, but what they plan to
do about it is a mystery. Will they execute Mr. Bucklew in a
seated position? . . . The DOC should be required to disclose
how it plans to execute Mr. Bucklew so that this Court can
properly assess whether additional risks are present. . . .
Until Mr. Bucklew knows what protocol the DOC will use to
kill him, and until the DOC is required to conduct the
necessary imaging and testing to quantify the expansion of
Mr. Bucklew's hemangiomas and the extent of his airway
obstruction, it is not possible to execute him without
substantial risk of severe pain and needless suffering.
Suggestions in Opposition argued that Bucklew's
"proposed changes . . . with the exception of his
complaint about [dye], which Missouri will not use in
Bucklew's execution, are not really changes in the method
and Baze established two requirements for an Eighth
Amendment challenge to a method of execution. First, the
challenger must "establish that the method presents a
risk that is sure or very likely to cause serious
illness and needless suffering, and give rise to sufficiently
imminent dangers." Glossip, 135 S.Ct.
at 2737 (emphasis in original), citing Baze, 553
U.S. at 50. This evidence must show that the pain and
suffering being risked is severe in relation to the
pain and suffering that is accepted as inherent in any method
of execution. Id. at 2733. Second, the challenger
must "identify an alternative that is feasible, readily
implemented, and in fact significantly reduces a substantial
risk of severe pain." Glossip, 135 S.Ct. at
2737, citing Baze, 553 U.S. at 52. This two-part
standard governs as-applied as well as facial challenges to a
method of execution. See, e.g., Jones v.
Kelley, 854 F.3d 1009, 1013, 1016 (8th Cir. 2017);
Williams v. Kelley, 854 F.3d 998, 1001 (8th Cir.
2017); Johnson v. Lombardi, 809 F.3d 388, 390 (8th
Cir. 2015); Bucklew I, 783 F.3d at 1123, 1127. As a
panel we are bound by these controlling precedents. Bucklew
argues the second Baze/Glossip requirement
of a feasible alternative method of execution that
substantially reduces the risk of suffering should not apply
to "an individual who is simply too sick and anomalous
to execute in a constitutional manner, " like those who
may not be executed for mental health reasons. See,
e.g., Ford v. Wainwright, 477 U.S. 399, 410
(1986). The Supreme Court has not recognized a categorical
exemption from the death penalty for individuals with
physical ailments or disabilities. Thus, in the decision on
appeal, the district court properly applied the
Baze/Glossip two-part standard in
dismissing Bucklew's as-applied claim.
concluded in Bucklew I, based on a record
"which went well beyond the four corners of
Bucklew's complaint, " that the complaint's
allegations, bolstered by defendants' concession
"that the Department's lethal injection procedure
would be changed on account of his condition by
eliminating the use of methylene blue dye, "
sufficiently alleged the first requirement of an as-applied
challenge to the method of execution -- "a substantial
risk of serious and imminent harm that is sure or very likely
to occur." 783 F.3d at 1127. We further concluded the
district court's sua sponte dismissal was
premature because these detailed allegations made it
inappropriate "to assume that Bucklew would decline an
invitation to amend the as-applied challenge" to
plausibly allege a feasible and more humane alternative
method of execution, the second requirement under the
Baze/Glossip standard. Id. In
remanding, we directed that further proceedings "be
narrowly tailored and expeditiously conducted to address only
those issues that are essential to resolving" the
as-applied challenge. Id. at 1128. We explained:
Bucklew's arguments on appeal raise an inference that he
is impermissibly seeking merely to investigate the protocol
without taking a position as to what is needed to fix it. He
may not be "permitted to supervise every step of the
execution process." Rather, at the earliest possible
time, he must identify a feasible, readily implemented
alternative procedure that will significantly reduce
a substantial risk of severe pain and that the State refuses
to adopt. . . . Any assertion that all methods of execution
are unconstitutional does not state a plausible claim under
the Eighth Amendment or a cognizable claim under § 1983.
Id. (quotation omitted; emphasis in original).
remand, consistent with our directive, the district court
first ordered Bucklew to file an amended complaint that
adequately identified an alternative procedure. Twice,
Bucklew filed amended complaints that failed to comply with
this order. Given one last chance to comply or face
dismissal, on October 13, 2015, Bucklew filed a Fourth
Amended Complaint. As relevant here, it alleged:
106.Based on Mr. Bucklew's unique and severe condition,
there is no way to proceed with Mr. Bucklew's execution
under Missouri's lethal injection protocol without a
substantial risk to Mr. Bucklew of suffering grave adverse
events during the execution, including hemorrhaging,
suffocating or experiencing excruciating pain.
107. Under any scenario or with any of lethal drug, execution
by lethal injection poses an enormous risk that Mr. Bucklew
will suffer extreme, excruciating and prolonged pain -- all