IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION DAVID ZINK, et al.

, Plaintiffs, v. GEORGE A. LOMBARDI, et al., Defendants. ) ) ) ) ) ) ) ) ) ORDER This matter comes before the Court on Plaintiff Herbert Smulls Motion for 60-Day Stay of Execution. (Doc. 285.) Smulls is one of 19 Plaintiffs in this case challenging the

Case No. 12-4209-CV-C-BP

constitutionality of the execution protocol issued by the Missouri Department of Corrections. On December 9, 2013, the Missouri Supreme Court ordered that Smulls be executed on January 29, 2014. For the reasons set forth below, Smulls Motion is DENIED. I. Background In May 2012, the Missouri Department of Corrections (the Department) announced a new execution protocol designating propofol as the execution drug. On June 26, 2012, Plaintiffs filed a lawsuit in Cole County, Missouri challenging that protocol under the United States and Missouri Constitutions. Defendants removed this case to federal court. Beginning in August 2012, Defendants made several successive changes to the execution protocol. On October 18, 2013, the Department issued its latest execution protocol, which changed the lethal agent for Missouri executions to pentobarbital. Shortly thereafter, the

Department announced that an unnamed compounding pharmacy was added to the execution

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team, which would provide pentobarbital for the executions. This version of the execution protocol remains in effect today. On November 19, 2013, the Court 1 granted Plaintiff Joseph Paul Franklins motion for stay of execution, finding a likelihood of success on the merits and a showing of irreparable harm for his claims of Eighth Amendment violations. (Doc. 163.) The Eighth Circuit vacated the order, citing Brewer v. Landrigan, 131 S.Ct. 445 (2010), Baze v. Rees, 553 U.S. 35, 47-45 (2008), and Whitaker v. Livingston, 732 F.3d 465, 468-69 (5th Cir. 2013), and denied rehearing en banc. Franklin then filed a renewed motion for stay on November 20, 2013. (Doc. 167.) Before the Court ruled, Franklin was executed and his motion was mooted. (Doc. 170.) After requesting leave, Plaintiffs filed their Amended Complaint on December 3, 2013, which addressed the recent changes in the execution protocol and the execution of Franklin. (See Doc. 183.) Specifically, the Amended Complaint alleges the execution protocol and Defendants conduct violate the Eighth Amendments prohibition against cruel and unusual punishment, violate the Ex Post Facto Clause by creating a significant risk of increased punishment, violate the separation of powers guaranty under the Missouri Constitution, violate the Due Process Clauses of the Fifth and Fourteenth Amendments of the United States and Missouri Constitutions, violate Plaintiffs due process and equal protection rights under the Fourteenth Amendment of the United States Constitution, constitute an unlawful administrative agency action remediable under the Missouri Administrative Procedure Act (MAPA), and violate the First Amendment of the United States and Missouri Constitutions. (See generally, Doc. 183.) On December 11, 2013, the Court denied Nicklassons motion to stay his execution. (Doc. 196.) In so ruling, Judge Laughrey found that the evidence upon which Nicklasson relied

The Honorable Nannette K. Laughrey previously presided over this case and ruled on the prior motions for stay of execution and for protective order.

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was similar to the evidence that was rejected by the Eighth Circuit and the U.S. Supreme Court as speculative. (Doc. 196, p. 6.) While his request for en banc review was pending before the Eighth Circuit, and before a ruling was issued, Nicklasson was executed. Shortly after Plaintiffs filed their Amended Complaint, Defendants moved for a protective order to prevent disclosure of the identities of the execution team, including the physician who prescribes the chemical used in Missouri executions, the identities of the pharmacy or pharmacists who have or may compound pentobarbital for use in Missouri executions, and/or the identity of the laboratory the Department uses to test the purity, potency, and sterility of the execution chemical. (Doc. 189; see also Doc. 189-1, exh. 6.) On December 12, 2012, the Court denied Defendants motion and ordered Defendants to disclose the identities of the compounding pharmacist, investigative laboratory, and prescribing physician. (Docs. 203; 204; 205.) Defendants filed a petition for writ of mandamus with the Eighth Circuit on That same day,

December 16, 2013 seeking review of the Courts order. (See Doc. 211.)

Defendants filed a motion for temporary stay, (Doc. 214), which the Eighth Circuit granted on December 17, 2013. (Doc. 225.) On January 24, 2013, the Eighth Circuit issued an opinion granting Defendants petition for writ of mandamus and vacating the Courts orders requiring disclosure of the identities of: (1) the physician who prescribes the chemical used in Missouri executions; (2) the pharmacist who compounds the chemical; and (3) the laboratory that tests the chemical for potency, purity, and sterility. In re George A. Lombardi, No. 13-3699 (8th Cir. Jan. 24, 2014); (see also Docs. 203; 204; 205.) Relying on the Supreme Courts decision in Baze, 553 U.S. 35, the Eighth Circuit found Plaintiffs failed to state a claim under the Eighth Amendment because they had not pled a known and available alternative to the current execution method, and therefore, it was a clear

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abuse of discretion for the district court to allow the claim to proceed and to order on that basis discovery of sensitive information[.] In re Lombardi, No. 13-3699 at 13. Similarly, the Eighth Circuit found that Plaintiffs failed to properly plead their Ex Post Facto claims, as the punishment has remained the same and Plaintiffs had fair notice of it. Id. at 14-15. The Eighth Circuit also concluded that the identities of the physician, pharmacist, and laboratory are plainly not relevant to Plaintiffs remaining claims as the merits of these claims do not depend on [those identities]. Id. at 15. II. Discussion 2 A district court must assess the likelihood of success on the merits prior to granting a stay. Nelson v. Campbell, 541 U.S. 637, 649-50 (2004); Nooner v. Norris, 491 F.3d 804, 808 (8th Cir. 2007). An inmate challenging the manner in which the State plans to execute him must show a significant possibility of success on the merits. Hill v. McDonough, 547 U.S. 573, 584 (2006); Nooner, 491 F.3d at 808. When assessing the constitutionality of a lethal injection protocol, the court must determine whether the protocol presents a substantial risk of inflicting unnecessary pain. Nooner v. Norris, 594 F.3d 592, 599 (8th Cir. 2010) (quotation omitted). In other words, 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. Baze, 553 U.S. at 50 (quotations and emphasis omitted). As Judge Laughrey previously noted, speculation as to the risks of a particular drug is not enough to show a demonstrated risk of severe pain. (Doc. 196, p. 4 (citing Landrigan, 131
2

Smulls only raises an Eighth Amendment cruel and unusual punishment claim in this Motion. (Doc. 285.) To the extent that Smulls raises an Ex Post Facto claim, it is denied as the Eighth Circuit found it was not properly pled, and therefore, Smulls cannot prove a likelihood of success on the merits. Moreover, as described in the discussion the Eighth Amendment claim, the evidence supporting an Ex Post Facto claim is insufficient to prove a likelihood of success on the merits. (See also Doc. 196, pp. 6-7.) For any additional claims, this Court adopts and incorporates herein the analysis, findings, and conclusions in Judge Laughreys order on Nicklassons motion to stay. (See Doc. 196.)

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S.Ct. at 445).) She further noted that speculation is still not enough, even when a prisoner claims he cannot establish a demonstrated risk because he has not had time to do so. (Id. (citing Whitaker, 732 F.3d at 468).) Essentially, stating that there are unknown dangers

associated with the drug intended for use in an execution is not sufficient to show a demonstrated risk of harm warranting a stay of execution. (Id. at p. 5 (citing Whitaker, 732 F.3d at 468).) In light of the recent opinion of the Eighth Circuit, Smulls cannot show a likelihood of success on the merits. The Eighth Circuit stated that [w]ithout a plausible allegation of a feasible and more humane alternative method of execution, or a purposeful design by the state to inflict unnecessary pain, the plaintiffs have not stated an Eighth Amendment claim based on the use of compound pentobarbital. In re Lombardi, No. 13-3699 at 13. Plaintiffs Amended Complaint fails to present a known and available alternative to the current execution method, or to plead a purposeful design to inflict unnecessary pain. Because Smulls has not properly pled his Eighth Amendment claim, he cannot show a likelihood of success on the merits. Even if Smulls had properly pled his Eighth Amendment claim, 3 the evidence in this case is insufficient to show that Smulls is likely to succeed on the merits of his claim. As discussed above, Smulls has a very high burden to meet that the protocol is sure or very likely to cause serious illness or needless suffering. In differentiating his motion for stay from Franklin and Nicklassons unsuccessful motions, Smulls primarily relies on Defendant David Dormires deposition testimony that the pentobarbital to be used in Smulls execution has been stored at room temperature for over ten days. (Doc. 286, pp. 73, 105-108, 110.) He further relies on Dr. Larry Sasichs opinion that storing pentobarbital at room temperature is not only a troubling

The Court recognizes the alternative method of executions Smulls includes in his Reply, (Doc. 299, p. 8), and makes no determination as to whether such alternative method meets the pleading requirement set out in the Eighth Circuits opinion.

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deviation from industry standards, but creates a very high risk that the compounded drug will degrade . . . before it is used for Mr. Smulls execution. (Doc. 285-3, 9.) However, Defendants present a letter from the Oklahoma Board of Pharmacy, which states that compounded pentobarbital that has passed sterility and fungal testing can be stored at room temperature for 30 days and still comport with industry standards. (Doc. 298-3.) In response to this letter, Dr. Sasich criticizes the laboratory he surmises conducts sterility and fungal testing for the Department, and concludes that the validity and reliability of the testing is questionable. (Docs. 299-8; 299-9; 300-1; 300-2.) However, Defendants have not made any statements confirming or denying the identity of the testing laboratory for pentobarbital intended for use in Missouri executions. And, Dr. Sasichs assumptions regarding the identity of the laboratory are an insufficient basis from which this Court can conclude Smulls is likely to succeed on his claim. Even if the Court were to conclude that the laboratory cited by Dr. Sasich conducts the testing for the Department, Smulls criticisms of the laboratory are insufficient for three reasons. One, the lawsuits currently pending against the laboratory and its purported role in the testing of injections linked to a meningitis outbreak are merely allegations of improper conduct and are an insufficient basis from which the Court can conclude the laboratory reports are unreliable in this case. (Doc. 299-6.) Two, while the FDA has cited the laboratory for failing to follow industry standards regarding sterility and fungal testing as well as endotoxin testing, Dr. Sasich fails to adequately connect those deficiencies to the testing done on compound pentobarbital in this case. (See Docs. 299-7; 300-1; 300-2.) Three, all of Smulls criticisms of the laboratory relate to previous testing and its track record. Previous incidents are insufficient to establish problems in the testing done in this case with the requisite level of certainty.

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Finally, as to Smulls argument that he is entitled to a stay while Plaintiffs petition for rehearing in In re Lombardi, No. 13-3699, it is not the purview of this Court to stay Smulls execution based on Plaintiffs appeal in the Eighth Circuit. That decision is better left to the Eighth Circuit. The Court recognizes that previous rulings by this Court and the Eighth Circuit have made it impossible for Smulls to discover the information necessary to meet his burden and that that fact weighs heavily on the Court. However, based on the pleading standard articulated by the Eighth Circuit, Smulls improperly pled his Eighth Amendment claim, and therefore, cannot show a likelihood of success on the merits. 4 Additionally, there is insufficient additional

evidence to arrive at a conclusion different than that in the Order on Nicklassons Motion to Stay. III. Conclusion Accordingly, Smulls Motion for Stay of Execution, (Doc. 285), is DENIED. IT IS SO ORDERED. /s/ Beth Phillips BETH PHILLIPS, JUDGE UNITED STATES DISTRICT COURT DATE: January 27, 2014

As Smulls cannot show a likelihood of success on the merits, the Court need not address the relative harm to the parties or whether Smulls was delayed in bringing his claim. See Nelson v. Campbell, 541 U.S. 637, 649-50 (2004); Nooner v. Norris, 491 F.3d 804, 808 (8th Cir. 2007).

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