Clayton v. Lombardi et al

Filing 9

MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that Clayton's motion to proceed in forma pauperis [Doc. # 2 ] is GRANTED. IT IS FURTHER ORDERED that Clayton shall pay an initial filing fee of $1.00 within thirty (30) days of the date of thi s Order. Clayton is instructed to make his remittance payable to Clerk, United States District Court, and to include upon it: (1) his name; (2) his prison registration number; (3) the case number; and (4) that the remittance is for an original proce eding. IT IS FURTHER ORDERED that this action is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B). An Order of Dismissal will accompany this Memorandum and Order. ( Initial Partial Filing Fee due by 4/16/2015.). Signed by District Judge Audrey G. Fleissig on 3/17/2015. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CECIL CLAYTON,
Plaintiff,
v.
GEORGE LOMBARDI,
Defendant,

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No. 4:15CV470 AGF

MEMORANDUM AND ORDER
Cecil Clayton is scheduled to be executed on March 17, 2015, at 6:00 p.m. for the
1996 first degree murder of a police officer, Deputy Christopher Castetter. He brings this
action under 42 U.S.C. § 1983 against George Lombardi, the Director of the Missouri
Department of Corrections, seeking an emergency declaration of his rights under the
Eighth and Fourteenth Amendments.1 He also seeks a stay of his impending execution.
After careful review, the Court finds that the complaint is frivolous and fails to state a
claim upon which relief can be granted. As a result, this action is dismissed without
further proceedings. See 28 U.S.C. § 1915(e)(2)(B) (mandating sua sponte dismissal of
in forma pauperis actions that are frivolous, malicious, or fail to state a claim.).
Background
Clayton was convicted of first-degree murder and sentenced to death on October
27, 1997, by the State of Missouri. On January 29, 2014, the Missouri Supreme Court
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The Court has reviewed Plaintiff’s financial information, and his request to proceed in forma
pauperis is granted. Plaintiff shall pay a partial initial filing fee of $1.00. See 28 U.S.C.
§ 1915(b).

directed Clayton to show cause why an execution date should not be set, the final
procedural prerequisite for setting an execution date. Mo. Sup. Ct. Rule 30.30(d).
Clayton’s response included the opinion of two experts, who opined he is incompetent to
be executed. In March 2014, the State of Missouri informed the Missouri Supreme Court
that Lombardi had requested the Missouri Department of Mental Health to assist him in
determining whether “reasonable cause” existed to believe Clayton was incompetent to
be executed. Mo. Rev. Stat. § 552.060.2. On December 18, 2014, the State notified the
Missouri Supreme Court that Lombardi had no reasonable cause to believe Clayton
lacked capacity under Missouri law. The Missouri Supreme Court granted Clayton’s
motion for leave to file a supplemental response to the order to show cause, and he filed it
on January 9, 2015. On February 6, 2015, the Missouri Supreme Court entered an order
setting March 17, 2015 as Clayton’s execution date.
A. Clayton’s Crime
In 1996, Clayton became angry at his girlfriend in a convenience store in Purdy,
Missouri. State v. Clayton, 995 S.W.2d 468, 473-74 (Mo. 1999) (Clayton I). When
Clayton pushed his girlfriend, a clerk in the store phoned the sheriff’s department. The
Purdy police chief arrived and waited there until Clayton and his girlfriend left
separately. Id. at 473. Within an hour, Clayton drove his truck to his girlfriend’s
residence. She was not there, but her sister called the sheriff’s department when she saw
Clayton sitting in his truck in their driveway. Id. Deputy Castetter was dispatched and
arrived at the residence at 10:03 p.m. Three or four minutes later, two other deputies
arrived to help Deputy Castetter deal with Clayton. When they arrived, however, they
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found Deputy Castetter in his patrol car, bleeding profusely from a point-blank gunshot
wound to his forehead. Id. His gun was still in his holster. Deputy Castetter was taken to
the hospital but soon died of his wound. Id. at 474.
Within 15 minutes of this murder, Clayton arrived at a friend’s house, brandished
a pistol, and exclaimed “would you believe me, if I told you that I shot a policeman,
would you believe me?” Id. Clayton told his friend he needed him to provide an alibi.
Clayton then drove his friend to Clayton’s house. Less than a half hour after the crime,
the two arrived at Clayton’s home just as the police were arriving there to question him
about Deputy Castetter’s murder. Clayton asked his friend “should I shoot them?” His
friend answered “No.” Id. Clayton got out of his truck and, claiming he could not hear the
officers, walked away from them and toward the side of his house with his right hand in
his pocket. The officers saw him take something out of the pocket and put it in a stack of
concrete blocks next to his house.
The officers arrested Clayton and later found his gun among the concrete blocks.
Id. In a subsequent interrogation, Clayton stated that Deputy Castetter “probably should
have just stayed home” and that “he shouldn’t have smarted off to me.” Clayton added,
however, “I don’t know because I wasn’t out there.” Later, Clayton admitted his
involvement in Deputy Castetter’s murder to a cellmate. Clayton v. State, 63 S.W.3d,
201, 204 (Mo. 2001) (Clayton II).
B. Clayton’s Brain Injury
Clayton was 56 years old in 1996 when he killed Deputy Castetter. Approximately
24 years before he committed that crime, Clayton was injured while working in a
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sawmill. A piece of wood broke off a log he was sawing and lodged in Clayton’s head.
Surgery was required to remove the object, and this procedure resulted in the loss of
nearly eight percent of Clayton’s brain and 20 percent of a frontal lobe. Clayton II, 63
S.W.3d at 205. At trial, Clayton’s brother Marvin testified that, after the injury, Clayton
changed. “He broke up with his wife, began drinking alcohol and became impatient,
unable to work and more prone to violent outbursts.” Id. at 204. Another brother, Jerry,
testified during the penalty phase about Clayton’s “childhood and life as a part-time
pastor and evangelist prior to the sawmill accident and, after the accident, his marital
breakup, drinking alcohol and his antisocial personality.” Id.
From the beginning of this prosecution, Clayton has argued that the effects of his
1972 brain injury absolved him of criminal liability for the 1996 murder of Deputy
Castetter, and further argued that it left him incompetent to proceed in some – but not all
– stages of his case. During the guilt phase of his trial, Clayton argued that the accident
rendered him incapable of deliberating or forming the intent necessary for the jury to find
him guilty of first-degree murder. Clayton II, 63 S.W.3d at 204. In addition to the
testimony from his brother, two experts testified that he was not capable of “deliberating,
planning, or otherwise coolly reflecting on a murder when agitated” and that his
inculpatory statements to the police should be discounted because his injury made him
unusually “susceptible to suggestion.” Id. The jury rejected this evidence and found
Clayton guilty of first-degree murder. In the penalty phase of his trial, Clayton argued
that his injury was a mitigating factor that should make the death penalty inappropriate in
his case. Id.
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Clayton raised numerous claims in his federal petition for a writ of habeas corpus,
including many based on the impairments created by his 1972 accident and resulting
brain injury. See Clayton v. Luebbers, No. 02-MC-8001-CV W NKL, 2006 WL 1128803
(W.D. Mo. Apr. 27, 2006) (Clayton III), aff’d, Clayton v. Roper, 515 F.3d 784 (8th Cir.
2008) (Clayton IV). Though not conclusive of the question now before this Court, these
claims and the Western District court’s rejection of them are relevant because Clayton’s
competence argument relies on a condition that existed throughout his legal proceedings
and – even though his experts refer to the condition as worsening with age – neither
Clayton nor his experts identify any evidence to support the fact that his competence is
materially worse now than in 2005 and 2006 when his federal habeas petition was
litigated and rejected. In 2006, as part of his petition for habeas relief in the federal
courts, Clayton claimed that his trial counsel was ineffective for arguing both that
Clayton was not the murderer, and that even if Clayton did kill Deputy Castetter,
Clayton’s brain injury precluded him from forming the necessary intent and deliberation.
Clayton III, 2006 WL 1128803, at *5-8. The Western District court noted that the
Missouri Supreme Court had rejected this claim, in part, because the court earlier had
reached the conclusion that Clayton “did not have a good defense under either theory.”
Id. at *7 (citing Clayton II, 63 S.W.3d at 206-07). The district court held there was
“ample evidence” to support this conclusion. Id. at *8.
C. Clayton’s Recent Petition In Front of the Missouri Supreme Court
On March 10, 2015, Clayton filed a petition for writ of habeas corpus and a
motion for stay of execution in the Missouri Supreme Court. He argued that he was
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incompetent to be executed under the standards enunciated in Ford v. Wainwright, 477
U.S. 399, 410 (1986), and Panetti v. Quaterman, 551 U.S. 930, 957 (2007).

The

Missouri Supreme Court rejected these claims, among a myriad of others, on March 14,
2015. See State ex rel. Clayton v. Griffith, No. SC94841 (Mo. 2015).2
D. Clayton’s § 1983 Complaint and Motion to Stay Execution
Clayton filed his § 1983 Complaint in this Court on Friday, March 13, 2015, at
7:11 p.m., before the Missouri Supreme Court issued its decision regarding competency.
In his complaint, Clayton argues that even if found competent, he would be subject to
cruel and unusual punishment due to his brain injury.

He essentially makes four

arguments, centered on the pre-execution drugs he could be administered.

First, he

argues the state, in its discretion, may offer two pre-execution drugs, midazolam and
valium, to calm him, but that his brain injury renders him unable to make a reasoned and
competent decision whether to take the pre-execution drugs. Second, Clayton argues that
the particular nature of his brain injury, coupled with the manner in which these two
drugs affect the brain, elevates the risk of an atypical reaction to the pre-execution drugs,
which is likely to leave him agitated and confused, and poses a heightened likelihood that
IV access will be difficult. Third, he asserts that should the state withhold the preexecution drugs simply because of his disability, this would violate his rights to equal
protection and the right to be free from cruel and unusual punishment. Fourth, he asserts
that the administration of the pre-execution drugs, together with Clayton’s brain injury,

2

Clayton v. Griffith was a 4 to 3 decision, with the three dissenting judges finding that a
competency hearing should be granted.
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could produce extreme psychological disarray and decompensation, such that he might
not understand why he is being executed. Clayton requests that this Court issue an
injunction staying the execution.
On Saturday, March 14, 2015, after the Missouri Supreme Court issued its opinion
finding Clayton competent to be executed, the state filed its opposition to the request for
an injunction staying execution. (Doc. No. 5). Among its arguments, the state notes that
the offer of pre-execution sedation is optional, and that three of the last four offenders
executed have refused sedation. The state suggests that based on the representations of
Clayton’s counsel that the pre-execution sedatives would be ineffective and
counterproductive, the state would construe the representations as a refusal of the
sedatives, and not provide them. According to the state, inasmuch as the sedatives are
optional, and not part of the execution protocol, it would not violate Clayton’s
constitutional rights were the sedatives not administered.
By separate motion filed thereafter, Clayton asks for a stay of execution, or in the
alternative for the appointment of a legal guardian with power to make medical decisions.
(Doc. No. 6.) Clayton continues to assert that he is not competent to consent to the
administration of the sedatives, but takes issue with the state’s position that in light of the
arguments he raised in this action, he will not be offered the sedatives. He further asserts
that the representations in the state’s opposition are contrary to the Warden’s prior
statement that Clayton will be offered the sedatives. In its supplemental opposition, the
state reaffirms that “the later statement of the Director controls… [and] Clayton will not
be given optional sedatives. . . .” (Doc. No. 7 at 2.) Lastly, in reply suggestions in
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support of his motion to stay, Clayton again takes issue with the state’s stated decision
not to offer him any sedatives. (Doc. No. 8.)
Standard
Pursuant to 28 U.S.C. ' 1915(e)(2)(B), the Court may dismiss a complaint filed in
forma pauperis if the action is frivolous, malicious, fails to state a claim upon which
relief can be granted, or seeks monetary relief against a defendant who is immune from
such relief. An action is frivolous if “it lacks an arguable basis in either law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action is malicious when it is
undertaken for the purpose of harassing litigants and not for the purpose of vindicating a
cognizable right. Spencer v. Rhodes, 656 F. Supp. 458, 461-63 (E.D.N.C. 1987), aff=d,
826 F.2d 1061 (4th Cir. 1987).
To determine whether an action fails to state a claim upon which relief can be
granted, the Court must engage in a two-step inquiry. First, the Court must identify the
allegations in the complaint that are not entitled to the assumption of truth. Ashcroft v.
Iqbal, 556 U.S. 662, 680-81 (2009). These include “legal conclusions” and “[t]hreadbare
recitals of the elements of a cause of action [that are] supported by mere conclusory
statements.” Id. at 678. Second, the Court must determine whether the complaint states a
plausible claim for relief. Id. at 680-81. This is a “context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” Id. at 679. The
plaintiff is required to plead facts that show more than the “mere possibility of
misconduct.” Id. The Court must review the factual allegations in the complaint “to
determine if they plausibly suggest an entitlement to relief.” Id. at 681. When faced with
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alternative explanations for the alleged misconduct, the Court may exercise its judgment
in determining whether plaintiff’s proffered conclusion is the most plausible, or whether
it is more likely that no misconduct occurred. Id. at 681-83.
To determine whether preliminary injunctive relief is warranted, the Court must
balance the threat of irreparable harm to movant, the potential harm to the nonmoving
party should an injunction issue, the likelihood of success on the merits, and the public
interest. Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109, 113-14 (8th Cir. 1981) (en
banc).

“A preliminary injunction is an extraordinary remedy, and the burden of

establishing the propriety of an injunction is on the movant.” Watkins, Inc. v. Lewis, 346
F.3d 841, 844 (8th Cir. 2003) (citations omitted). “The party seeking injunctive relief
bears the burden of proving all the Dataphase factors.” Id.
In Hill v. McDonough, the Supreme Court of the United States held that a motion
to stay execution did not have to be brought as a habeas action, but could proceed under
§ 1983. 547 U.S. 573, 579-83 (2006). The Court stated “that 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 criminal judgments without undue interference
from the federal courts.” Id. at 584. “[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. (emphasis
added). “A court considering a stay must also apply ‘a strong equitable presumption
against the grant of a stay where a claim could have been brought at such a time as to

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allow consideration of the merits without requiring entry of a stay.’” Id. (quoting Nelson
v. Campbell, 541 U.S. 637, 650 (2004)).
Contentions in Support of the Complaint
In support of his four main arguments, Clayton alleges that he might be offered
midazolam and valium before his execution time.

See Compl. at 9-10 (“Prior to the

insertion of the IV lines, the prisoner may be offered Valium as a sedative. . . . After the
IV lines are inserted, the prisoner, at the discretion of the medical doctor supervising the
execution, is offered midazolam as a sedative.”).

He says that “[h]is intellectual

disability makes it likely that he will not cognitively understand the ramifications of the
decision.” Id. at 10-11. He further alleges that if he does accept the pre-execution drugs,
he might have an atypical reaction to them that may make his execution more painful
than for other capital inmates. He contends that “both midazolam and valium act on the
very part of the brain where Mr. Clayton has severe damage.” Id. at 11. Further, he
asserts that “[b]ecause Mr. Clayton’s abnormalities are focused in the area where these
drugs act, Mr. Clayton is likely to experience an atypical response to the midazolam. He
is likely to experience effects associated with frontal lobe decompensation.” Id.
Discussion
In Zink v. Lombardi, the Court of Appeals for the Eighth Circuit articulated the
standard for stating an Eighth Amendment claim:
Stating a plausible Eighth Amendment claim in the context of the
prisoners’ attack upon Missouri's execution protocol first requires the
prisoners to plead sufficient facts indicating that the protocol creates a
“substantial risk of serious harm.” Indeed, the prisoners allege the lethalinjection protocol creates a substantial risk of serious harm in that it inflicts
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a “substantial risk of severe pain.” However, successfully pleading facts to
demonstrate a substantial risk of severe pain requires the prisoners to plead
more than just a hypothetical possibility that an execution could go wrong,
resulting in severe pain to a prisoner. The Eighth Amendment prohibits an
“objectively intolerable risk” of pain, rather than “simply the possibility of
pain.” The plurality opinion in Baze acknowledged that the nature of
executions necessarily involves the risk of pain: “Some risk of pain is
inherent in any method of execution—no matter how humane—if only
from the prospect of error in following the required procedure.” [Baze v.
Rees, 553 U.S. 35, 47 (2008).] But “the Constitution does not demand the
avoidance of all risk of pain in carrying out executions.” Instead, the Eighth
Amendment requires that the prisoners show the intended protocol is “sure
or very likely to cause serious illness and needless suffering.”
Zink v. Lombardi, ___ F.3d___, No. 14-2220, 2015 WL 968176, at *4 (8th Cir. Mar. 6,
2015) (citations omitted).
Zink was an action by several Missouri prisoners, including Clayton, challenging
Missouri’s lethal injection protocol under the Eighth Amendment.

The Eighth Circuit

affirmed the district court’s dismissal for failure to state a cause of action because:
None of the alleged potentialities the prisoners identify in the second
amended complaint relating to compounded pentobarbital rises to the level
of “sure or very likely” to cause serious harm or severe pain. The prisoners’
allegations are limited to descriptions of hypothetical situations in which a
potential flaw in the production of the pentobarbital or in the lethalinjection protocol could cause pain. This speculation is insufficient to state
an Eighth Amendment claim. By noting that the use of compounding
pharmacies “often results” in “potentially unsafe drugs,” the experts whose
views have been incorporated into the second amended complaint
underscore that the harms they have identified are hypothetical and not
“sure or very likely” to occur. The prisoners rely on allegations of
generalized harms resulting from the use of a compounding pharmacy to
produce the pentobarbital and have failed to provide anything more than
speculation that the current protocol carries a substantial risk of severe pain.
Id. at *6 (citations omitted).

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As in Zink, Clayton’s Eighth Amendment claim in the present action is
hypothetical and speculative. The decision as to whether or not to offer the pre-execution
drugs is within the discretion of the medical doctor supervising the execution. Assuming
the sedatives were administered, Clayton’s complaint fails, as the expert’s opinion with
respect to the affect of the sedatives on Clayton is stated in hypothetical terms. Ex. 26 at
2-3. Neither the complaint nor the expert’s opinion demonstrate that Clayton is “sure or
very likely to” suffer serious harm or severe pain as the result of the medical doctor’s
actions. See Chavez v. Palmer, No. 3:14-cv-110-J-39JBT, 2014 WL 521067, at *14-15
(M.D. Fla. Feb. 10, 2014) (rejecting as speculative a claim similar to Clayton’s where
such sedatives were part of the execution protocol).
Clayton further asserts that he “is not competent to comply with Missouri’s
execution protocol and make a rational decision on whether to accept midazolam and
valium. His intellectual disability makes it likely that he will not cognitively understand
the ramifications of his decision.” Compl. at 10.
In his habeas petition before the Western District, the court found Clayton
competent to proceed in habeas proceedings. Def. Ex. 11 at 18. The Court of Appeals
affirmed that finding. Clayton v. Roper, 515 F.3d 784, 790-91 (8th Cir. 2008). The
Western District also denied his claim that he was “mentally retarded” such that therefore
his execution was barred by Atkins v. Virginia, 536 U.S. 304 (2002).

Clayton v.

Luebbers, 2006 WL 1128803, *43. And on March 14, 2015, the Missouri Supreme Court
found that he is competent to be executed. Deft. Ex. 12 (State ex rel. Clayton v. Griffith,
No. SC94841 (Mo. 2015)). Clayton has never been found to be mentally retarded,
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incompetent to proceed in habeas corpus, or incompetent to be executed. In his request
for a stay of execution, Clayton argues that these decisions never addressed the specific
issue of whether he could make a decision to accept the sedatives. But this argument
misses the mark; the evidence that Clayton has presented is simply not enough to support
his assertion that he is not competent to make this decision. Clayton relies on the same
evidence produced in his earlier cases in support of his instant complaint. See Cmpl. at 6
(citing Pl.’s Ex. 8, 9, 12, and 14). To state a claim for relief, a complaint is required to
plead facts that show more than the “mere possibility of misconduct.” Iqbal, 129 S. Ct. at
1950. A plaintiff’s allegations must rise to the level of plausibility. Id. at 1950. In this
case, Clayton’s allegations show only a “mere possibility” that he is unable to make a
rational decision whether to take the drugs.
Clayton’s asserted Equal Protection claim, based on his intellectual disability, is
too tangential and implausible to be recognized. “[T]he Equal Protection Clause permits
a State to classify on the basis of disability so long as it has a rational basis for doing so.”
Tennessee v. Lane, 541 U.S. 509, 540 (2004). Here, based on Clayton's own complaint,
there is a rational basis for not offering him the sedatives in question. Clayton’s counsel
argues absurdities by stating that the drugs will harm him, but that he must have the
option to take them if he chooses.
In any event, it appears that the state now may make the medical decision not to
offer the pre-execution sedatives, in light of the concerns raised by Clayton. This is a
decision the state may make. The pre-execution sedatives are not required, and Clayton
has not made a sufficient showing that the failure to offer such sedatives would violate
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either his Eighth or Fourteenth Amendment rights. This ruling should not be read to
prohibit the state from administering such sedatives to Clayton should he request them.
In addition to his four central arguments, Clayton also states that the use of
compounding pharmacies to make the execution drug, pentobarbital, violates his right to
be free from cruel and unusual punishment. The Court of Appeals rejected this argument
less than two weeks ago in Zink. Zink, 2015 WL 968176, at *6. Clayton was a party in
Zink. While Clayton alleges that this claim applies only to himself, as opposed to other
inmates, because of his brain damage, the claim is unsupported. The Court of Appeals
has already found no reason to doubt the reliability of drugs produced by compound
pharmacies. Id. (“None of the alleged potentialities the prisoners identify in the second
amended complaint relating to compounding pentobarbital rises to the level of ‘sure or
very likely’ to cause serious harm or severe pain. The prisoners’ allegations are limited to
descriptions of hypothetical situations in which a potential flaw in the production of the
pentobarbital or in the lethal-injection protocol could cause pain. This speculation is
insufficient to state an Eighth Amendment claim.”).
For the reasons stated above, Clayton is not entitled to injunctive relief. He has
not demonstrated a likelihood of success on the merits.

Further, Clayton has had

knowledge of his head injury and Missouri’s execution protocol for several years. No
compelling reason justifies the last-minute filing of this case. As stated above, the court
must apply “‘a strong equitable presumption against the grant of a stay where a claim
could have been brought at such a time as to allow consideration of the merits without
requiring entry of a stay.’” Hill, 547 U.S. at 584 (quoting Nelson, 541 U.S. at 650).
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Clayton’s proffered explanation for the delay is unpersuasive under these facts. As a
result, Clayton has not demonstrated that he is entitled to a stay of his execution.
For each of these reasons, the complaint must be dismissed under § 1915(e)(2)(B).
Finally, because of the frivolous nature of Clayton’s allegations, the Court finds
that an appeal would be taken in bad faith.
Conclusion
Accordingly,
IT IS HEREBY ORDERED that Clayton’s motion to proceed in forma pauperis
[Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that Clayton shall pay an initial filing fee of $1.00
within thirty (30) days of the date of this Order. Clayton is instructed to make his
remittance payable to “Clerk, United States District Court,” and to include upon it: (1) his
name; (2) his prison registration number; (3) the case number; and (4) that the remittance
is for an original proceeding.
IT IS FURTHER ORDERED that this action is DISMISSED pursuant to 28
U.S.C. § 1915(e)(2)(B).
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 17th day of March, 2015.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
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