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Johnson v. Precythe

United States Court of Appeals, Eighth Circuit

August 27, 2018

Ernest Lee Johnson, Plaintiff- Appellant,
v.
Anne L. Precythe; A1ana Boyles; Stanley Payne, Defendants - Appellees.

          Submitted: May 16, 2018

          Appeal from United States District Court for the Western District of Missouri - Jefferson City.

          Before SMITH, Chief Judge, BEAM and COLLOTON, Circuit Judges. [*]

          COLLOTON, CIRCUIT JUDGE.

         Ernest Johnson, a prisoner sentenced to death in Missouri, appeals the dismissal of his action challenging the constitutionality of the State's method of execution as applied to him. The district court dismissed Johnson's second amended complaint for failure to state a claim. We conclude that Johnson pleaded a plausible claim for relief under the Eighth Amendment, so we reverse and remand for further proceedings.

         I.

         Johnson was convicted of three counts of first-degree murder in Missouri state court and sentenced to death. See State v. Johnson, 244 S.W.3d 144, 149 (Mo. 2008). He filed this action against Missouri officials in October 2015, approximately two weeks before a scheduled execution on November 3, 2015. Johnson alleged that the State's method of execution-lethal injection with pentobarbital-violates the Eighth Amendment's proscription on cruel and unusual punishment, because there is "a substantial and unjustifiable risk" that a pentobarbital injection will "trigger severe and uncontrollable seizures and convulsions due to his brain defect and unique medical condition."

         The district court granted the State's motion to dismiss the complaint for failure to state a claim. See Fed. R. Civ. P. 12(b)(6). Applying the Eighth Amendment standard from Glossip v. Gross, 135 S.Ct. 2726, 2737 (2015), the court concluded that Johnson had not identified a feasible, readily implementable alternative method of execution that would significantly reduce a substantial risk of severe pain. The court dismissed the complaint without prejudice, stating that Johnson was free to amend his complaint to remedy its deficiencies. Due to Johnson's imminent execution date, however, the court stated that it was certifying the dismissal order for interlocutory appeal under Federal Rule of Civil Procedure 54(b).

         Johnson moved this court to stay his execution pending appeal. This court denied a stay after concluding that Johnson failed to demonstrate a significant possibility of success on either element of his Eighth Amendment claim. Johnson v. Lombardi, 809 F.3d 388 (8th Cir. 2015) (per curiam). The Supreme Court, however, granted a stay pending appeal in the Eighth Circuit. Johnson v. Lombardi, 136 S.Ct. 443 (2015) (per curiam). The Court observed that a supporting affidavit by a medical expert stated that "[a]s a result of Mr. Johnson's brain tumor, brain defect, and brain scar, a substantial risk of serious harm will occur during his execution as a result of a violent seizure that may be induced by [the] Pentobarbital injection." Id. at 443 (alterations in original).

         As we observed in Bucklew v. Lombardi, 783 F.3d 1120 (8th Cir. 2015) (en banc), "[t]he Court's decision to grant a stay pending appeal reflected its determination that [the movant] had shown 'a significant possibility of success on the merits' of his appeal from the district court's dismissal of his complaint." Id. at 1123-24 (quoting Hill v. McDonough, 547 U.S. 573, 584 (2006)). In this case, however, we subsequently dismissed Johnson's appeal for lack of jurisdiction, and did not consider the merits of his complaint at that time. Johnson v. Lombardi, 815 F.3d 451 (8th Cir. 2016). We noted that the State had not established a new execution date, and that Johnson was thus "free to move for leave to amend his complaint without the pressure of a scheduled execution." Id. at 452.

         Back in the district court, Johnson amended his complaint, but the court again dismissed it without prejudice. This time, the court reasoned that Johnson's complaint failed to plead facts that established the likelihood that pentobarbital would cause him to have a mid-execution seizure. The court allowed that it would give Johnson one more opportunity to file an adequately pleaded complaint.

         Johnson then filed a second amended complaint. As an exhibit, Johnson attached an affidavit from anesthesiologist Dr. Joel Zivot, who opined about the likelihood that Johnson would suffer a painful seizure if executed by means of pentobarbital. Johnson also attached an Oklahoma study concluding that nitrogen-induced hypoxia, an alternative to lethal injection, would be a humane method of execution.

         The district court granted the State's motion to dismiss the latest complaint. The court reasoned that Johnson failed to plead adequately two elements of an Eighth Amendment claim-namely, that pentobarbital was sure or very likely to cause him to suffer severe pain, and that nitrogen-induced hypoxia was a feasible and readily implemented alternative method of execution that would significantly reduce that risk. Johnson appeals, and we ...


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