Bucklew v. Lombardi, et al

Filing 202

ORDER Defendants Motion for Summary Judgment on Count I is GRANTED. 181 Signed on 6/15/2017 by District Judge Beth Phillips. (McIlvain, Kelly)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
RUSSELL BUCKLEW,
Plaintiff,
v.
GEORGE A. LOMBARDI, et al.,
Defendants.

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Case No. 14-8000-CV-W-BP

ORDER AND OPINION GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Pending is Defendants’ Motion for Summary Judgment, which seeks summary judgment
on the Eighth Amendment Claim presented in Count I1 of the Fourth Amended Complaint.
Defendants contend that the undisputed facts demonstrate (1) they are entitled to judgment as a
matter of law on the merits, (2) Plaintiff’s claim is barred by the statute of limitations, and (3)
Plaintiff’s claim is barred by principles of claim preclusion.2 As discussed below, the Court
agrees that the undisputed facts in the Record establish that Plaintiff cannot prevail on his Eighth
Amendment claim, and for that reason the motion, (Doc. 181), is GRANTED.3

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Counts II and III were previously dismissed by the Court. (Doc. 63.)

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Defendants also contend the Court should dismiss the case because it lacks jurisdiction. (Doc. 182, pp. 9-10.) The
argument has been presented before, and the Court rejects it for the reasons previously stated. (See Doc. 101.) To
the extent that Defendants’ argument has shifted to contend that the Court lacks jurisdiction because the Record now
proves that Plaintiff will not suffer a redressable injury, the Court rejects this argument as well. Defendants’
argument relates to Plaintiff’s ability to prove his claim, not to the Court’s jurisdiction, and crediting Defendants’
argument would essentially require dismissal (without prejudice) for lack of jurisdiction anytime a plaintiff fails to
prove his claim. It “is important not to conflate the injury and traceability requirements of a standing analysis with
the plaintiff’s ultimate burden of proof as to the issues of damages and causation at a trial on the merits,” Brown v.
Medtronic, Inc., 628 F.3d 451, 457 (8th Cir. 2010), and this observation applies equally when the merits are
considered at the summary judgment stage.
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The Court does not address the statute of limitations or claim preclusion arguments. These issues were not
addressed before the first appeal, and the Court of Appeals declined to address them in the first instance. Bucklew v.
Lombardi, 783 F.3d 1120, 1122 n.1, 1128-29 (8th Cir. 2015) (en banc). Following remand Defendants sought
dismissal on these grounds, but the Court denied the request without prejudice because the Record was not yet

I. BACKGROUND
A. Procedural History
Plaintiff Russell Bucklew was convicted in state court of first degree murder, kidnapping,
burglary, forcible rape, and armed criminal action. He was sentenced to death for the murder
and various terms of years on the other crimes. State v. Bucklew, 973 S.W.2d 83 (Mo. 1998) (en
banc), cert. denied, 525 U.S. 1082 (1999). His requests for postconviction relief and habeas
relief were denied. Bucklew v. State, 38 S.W.3d 395 (Mo.) (en banc), cert. denied, 534 U.S. 964
(2001); Bucklew v. Luebbers, 436 F.3d 1010 (8th Cir.), cert. denied, 549 U.S. 1079 (2006).
Plaintiff filed this suit in May 2014. The Court dismissed the case, but the dismissal was
reversed and the case was remanded. Bucklew v. Lombardi, 783 F.3d 1120, 1128 (8th Cir. 2015)
(en banc). After the Mandate was issued, Bucklew filed a series of Amended Complaints. The
latest – the Fourth Amended Complaint – is the operative pleading, and as noted earlier Count I
is the only remaining count. Count I asserts an Eighth Amendment challenge, contending that
Missouri’s method of execution is unconstitutional as applied to Plaintiff because of his unique
medical condition.
B. Facts
Plaintiff suffers from a congenital condition known as cavernous hemangioma. The
disease causes clumps of weak, malformed blood vessels and tumors to grow throughout his
body, including his head, face, neck and throat. The tumors are very susceptible to rupture. The
sufficiently developed and various legal complexities (some of which had been identified by the Court of Appeals,
783 F.3d at 1122 n.1) had not been addressed. The Court’s Order explained some of the difficulties involved in
determining whether these doctrines apply. (Doc. 63, pp. 9-13.) The Supreme Court has since discussed the
doctrine of claim preclusion when an as-applied challenge follows an unsuccessful facial challenge. Whole
Woman’s Health v. Helerstedt, 136 S. Ct. 2292, 2305 (2016). In reasserting these arguments Defendants have not
addressed any of these factual or legal issues; they have merely cited general principles without explaining how they
apply in this unique situation, and cited to the same facts that were earlier deemed to be incomplete and therefore
insufficient. Given the Court’s ruling on the merits there is no need to further delay resolution of this case to
provide Defendants another opportunity to address these issues.

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disease also affects Plaintiff’s circulatory system, resulting in (among other effects)
compromised peripheral veins in his hands and arms. The tumors in his throat also make it
difficult for him to breathe, and that difficulty is exacerbated when he is in a supine position.
Plaintiff’s condition is incurable, and surgery to alleviate the tumors is not possible due to the
risk of severe bleeding.
Missouri’s death penalty protocol has not been succinctly described, but the parties
implicitly agree (and the Record demonstrates, (e.g., Doc. 182-1, pp. 135-36; Doc. 197-1; Doc.
182-7, pp. 7-9)),4 that it involves the intravenous administration of pentobarbital in dosages
sufficient to cause unconsciousness and eventually death. In terms of the IV’s placement, the
protocol provides as follows:
Medical personnel shall determine the most appropriate locations for intravenous
(IV) lines. Both a primary IV line and a secondary IV line shall be inserted unless
the prisoner’s physical condition makes it unduly difficult to insert more than one
IV. Medical personnel may insert the primary IV line as a peripheral line or a
central venous line (e.g., femoral, jugular, or subclavian) provided they have
appropriate training, education and experience for that procedure. The secondary
IV line is a peripheral line.
(Doc. 182-1, p. 1.) The parties seem to agree that because of the cavernous hemangioma
Plaintiff’s peripheral veins cannot be used in this process because of the risk that they will
rupture (assuming that an IV could be placed in them in the first place). However, the portion of
the protocol quoted above confirms that a central line in the femoral vein may be used instead of
inserting an IV in the peripheral veins. With respect to the risk of Plaintiff’s femoral vein
rupturing, Plaintiff’s expert, (Dr. Joel Zivot), testified that the femoral vein is large and capable
of “tak[ing] a fair amount of fluid” when the central line is properly placed, and the risk of that
vein rupturing is “unlikely.” (Doc. 182-1, p. 26.) Dr. Zivot also denied having any reason to
believe that Plaintiff’s medical condition made his femoral vein more susceptible to rupture than
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All page numbers are those generated by the Court’s CM/ECF system.

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might otherwise be expected, and confirmed that his testimony about the risk of Plaintiff’s veins
rupturing was limited to Plaintiff’s peripheral veins. (Doc. 182-1, pp. 70-71, 77-78.) Plaintiff
also concedes that there is no evidence in the Record establishing that Plaintiff has any problem
with his veins other than his peripheral veins, including his femoral vein. (Doc. 197, p. 9.)
Finally, the Record confirms that Plaintiff’s medical condition will not affect the flow of
chemicals in his bloodstream once they are introduced through the femoral vein, or otherwise
affect his expected response to the pentobarbital. (E.g., Doc. 182-1, pp. 65-66, 213-14, 219.)
An execution is typically conducted with the prisoner lying on his back. The procedure
for inserting a central line is also usually performed with the person in the supine position. The
Record establishes that Plaintiff has difficulty breathing while in that position because the tumors
can cause choking or an inability to breathe. Sometimes the tumors bleed, thereby exacerbating
the sensation. When required to be on his back, Plaintiff can “adjust” his breathing so that he
can remain in that position; for instance, Plaintiff was able to lie on his back for approximately
one hour while undergoing an MRI. However, there are factual disputes as to (1) Plaintiff’s
ability to adjust his breathing once the pentobarbital begins to take effect, (Doc. 181-1, pp. 8182), and (2) how quickly the pentobarbital will deprive Plaintiff of the ability to sense that he is
choking or unable to breathe. On the latter point Dr. Zivot testified that it could be fifty-two to
240 seconds before the pentobarbital induces a state in which Plaintiff could no longer sense that
he is choking or unable to breathe. (E.g., Doc. 182-1, pp. 84-88.) Defendants point out that their
expert, Dr. Joseph Antognini, opined that Plaintiff would be unconscious within twenty to thirty
seconds and at that point would be incapable of experiencing pain. (Doc. 182-1, pp. 198-99;
Doc. 182-5, pp. 60-62.) However, the Court cannot resolve this dispute between the experts on
summary judgment.

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Defendants also invite the Court to analyze the study Dr. Zivot relied upon to find that
fifty-two seconds of awareness is the worst case scenario because that is when brain death
occurs. (Doc. 200, p. 15.) Dr. Zivot addressed this issue in his deposition, explaining that the
study’s use of the term “brain death” was a “misnomer” because the study marked “brain death”
before measurable brain activity terminated; he then indicated that pain might be felt until
measurable brain activity ceases. (Doc. 182-1, pp. 83-86.)5 The Court also cannot resolve this
factual dispute on summary judgment. Therefore, construing the Record in Plaintiff’s favor
reveals that it could be fifty-two to 240 seconds before the pentobarbital induces a state in which
Plaintiff could no longer sense that he is choking or unable to breathe.6
II. DISCUSSION
A moving party is entitled to summary judgment on a claim only upon a showing that
“there is no genuine issue of material fact and that the moving party is entitled to a judgment as a
matter of law.” See generally Williams v. City of St. Louis, 783 F.2d 114, 115 (8th Cir. 1986).
“[W]hile the materiality determination rests on the substantive law, it is the substantive law’s
identification of which facts are critical and which facts are irrelevant that governs.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, “[o]nly disputes over facts that might
affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment.” Wierman v. Casey=s Gen. Stores, 638 F.3d 984, 993 (8th Cir. 2011)
(quotation omitted). In applying this standard, the Court must view the evidence in the light
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This may be a generous interpretation of Dr. Zivot’s testimony. However, (1) the Record must be construed in the
light most favorable to Plaintiff and (2) the Court is not required to resolve the elements of Plaintiff’s claim in any
particular order. Therefore, the Court deems it appropriate to adopt this interpretation of Dr. Zivot’s testimony in
order to frame the discussion about Plaintiff’s proffered alternative method of execution.
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Defendants also suggest that the execution could be performed with Plaintiff in a different position, but there is no
evidence whether this has an effect on the procedure as a whole or the procedure for inserting a central line
specifically. In light of the Record’s silence on these matters, Defendants have not provided the Court with a basis
for granting summary judgment based on the possibility of performing the execution with Plaintiff in a sitting (or
other) position.

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most favorable to the non-moving party, giving that party the benefit of all inferences that may
be reasonably drawn from the evidence. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587-88 (1986); Tyler v. Harper, 744 F.2d 653, 655 (8th Cir. 1984), cert. denied, 470
U.S. 1057 (1985). A party opposing a motion for summary judgment may not simply deny the
allegations, but must point to evidence in the Record demonstrating the existence of a factual
dispute. Fed. R. Civ. P. 56(c)(1); Conseco Life Ins. Co. v. Williams, 620 F.3d 902, 909-10 (8th
Cir. 2010).
In Glossip v. Gross, the Supreme Court determined “what a prisoner must establish to
succeed on an Eighth Amendment method-of-execution claim.” 135 S. Ct. 2726, 2737 (2015).
“[D]ecisions in this area have been animated in part by the recognition that because it is settled
that capital punishment is constitutional, it necessarily follows that there must be a constitutional
means of carrying it out.” Id. at 2732-33. Moreover, “because some risk of pain is inherent in
any method of execution, we have held that the Constitution does not require the avoidance of all
risk of pain.” Id. at 2733. In light of these observations, a prisoner alleging that a particular
form of execution is cruel and unusual within the meaning of the Eighth Amendment must first
establish that the method to be utilized “presents a risk that is sure or very likely to cause serious
illness and needless suffering, and give rise to sufficiently imminent dangers.” Id. at 2737
(quotations and emphasis deleted). The prisoner must then “identify a known and available
alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth
Amendment method-of-execution claims.” Id. at 2731. The alternative must be “feasible,
readily implemented, and in fact significantly reduce[ ] [the] substantial risk of severe pain.” Id.
at 2737; see also Bucklew, 783 F.3d at 1128. The Court has discretion to decide the order in
which it will address these two components of Plaintiff’s claim. Bucklew, 783 F.3d at 1128.

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A. Risk of Serious Illness or Needless Suffering
Defendants contend that the uncontroverted facts demonstrate that Plaintiff is not sure or
likely to experience a serious injury or needless suffering.

Plaintiff contends that he has

demonstrated a serious risk that he will experience needless pain and suffering because (1) the
weakness in his peripheral veins precludes using them to administer the pentobarbital, and (2) he
will choke or otherwise be unable to breathe for an extended period of time before the
pentobarbital takes full effect. The Court concludes that the Record establishes that (1) the use
of Plaintiff’s femoral vein does not present any risk of serious illness or needless suffering, and
(2) the Record does not permit a conclusive determination regarding the risk that Plaintiff will
choke and be unable to breathe for a period of time that would violate the Eighth Amendment.
1. Use of Plaintiff’s Femoral Vein
As discussed in Part I.B, there is an apparent consensus that an IV cannot be safely
inserted in Plaintiff’s peripheral veins. However, the execution protocol allows a central line to
be inserted in Plaintiff’s femoral vein, and the Record establishes that this can be done without
the risk of complications attributable to Plaintiff’s congenital condition. The Court also notes
that Plaintiff’s legal argument does not discuss Defendant’s evidence that his femoral vein can be
used to administer the execution drugs. (Doc. 197, pp. 34-43.) Plaintiff discusses the use of his
femoral vein only in the portion of his Opposition that addresses the facts in the Record, and
even in that context he does not present any legal arguments based on those facts. Nonetheless,
the Court will briefly discuss these factual issues.
Generally speaking, Plaintiff addresses the potential difficulty in locating the femoral
vein and the fact that medical personnel might require multiple attempts to locate it.7 This, he

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To the extent Plaintiff contends that there is no evidence demonstrating that Plaintiff’s femoral veins are unaffected
by his disease, this argument does not change the Court’s opinion. If there is no evidence that will establish any

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posits, will increase his stress, thereby increasing his breathing rate and making it more likely
that he will choke. Plaintiff also suggests that if the procedure is not performed properly the
drugs might be injected in an artery instead of the vein. (Doc. 197, pp. 18-20.) However,
Plaintiff does not quantify these risks, nor (as stated) does he explain how these facts
independently establish that the current protocol presents a risk of serious illness or needless
suffering. The possibility that Plaintiff might experience increased stress (or, more precisely,
more stress than the situation might otherwise produce) is particularly speculative, as are the
effects of that extra stress. Moreover, on several occasions the Court has observed that Plaintiff
cannot predicate his Eighth Amendment claim on the bare possibility that a medical procedure
might be performed incorrectly.
The uncontroverted facts demonstrate that the lethal injection protocol can be
implemented by using Plaintiff’s femoral vein, and that doing so will not create a substantial risk
of serious injury or needless suffering. Therefore, the fact that Plaintiff’s peripheral veins cannot
be used will not support the first component of Plaintiff’s claim.
2. Plaintiff’s Obstructed Airway
As discussed in Part I.B, the facts construed in Plaintiff’s favor would permit a factfinder
to conclude that for as long as four minutes Plaintiff could be aware that he is choking or unable
to breathe but be unable “adjust” his breathing to remedy the situation. In seeking summary
judgment Defendants have not contended that such a situation would not satisfy Glossip (and the
Court does not hold whether it does or does not); Defendants’ sole argument is that Plaintiff
would likely experience this sensation for twenty to thirty seconds or, at worst, fifty-two
seconds. As discussed before, this is a factual dispute that the Court cannot resolve on summary

problems with the use of Plaintiff’s femoral vein, then there is no reason to have a trial on the issue. Without
evidence, it is a foregone conclusion that Plaintiff cannot prevail on this issue.

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judgment, and would have to be resolved at trial. Therefore, solely for purposes of further
discussion, the Court presumes that there is a substantial risk that Plaintiff will experience
choking and an inability to breathe for up to four minutes.
B. Alternative Measures
Plaintiff contends that death through nitrogen gas-induced hypoxia will significantly
reduce the risks of severe pain and suffering. Defendants do not argue that this method of
execution is not feasible or readily implemented. Instead, Defendants argue that the Record
demonstrates this method of execution will not reduce Plaintiff’s risk of pain and suffering.
Plaintiff disputes this point and further contends that he is not required to identify an alternative
method of execution.
The Court addresses Plaintiff’s second point first. He contends that Glossip does not
apply because that case involved a facial challenge and he presents an as-applied challenge. The
Court disagrees. First, Glossip set forth the requirements for an Eighth Amendment challenge to
an execution method. The Supreme Court did not distinguish between facial and as-applied
challenges, and it did not provide a basis for interpreting Glossip as creating such a distinction.
To the contrary, the Supreme Court specified that the need to “identify a known and available
alternative method of execution that entails a lesser risk of pain [is] a requirement of all Eighth
Amendment method-of-execution claims.” Glossip, 135 S. Ct. at 2731 (emphasis supplied).
Second, the Eighth Circuit clearly directed that Plaintiff must (1) identify at the pleading stage
and (2) eventually prove that there is an alternative that will significantly reduce the risk.
Bucklew, 783 F.3d at 1128. This is the law of the case, and the Court must adhere to it. Third,
the Eighth Circuit has explicitly rejected Plaintiff’s argument in other cases. Williams v. Kelley,
854 F.3d 998, 1001 (8th Cir.), cert. denied, 137 S. Ct. 1284 (2017) (citing Johnson v. Lombardi,

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809 F.3d 388, 391 (8th Cir.), cert. denied, 136 S. Ct. 601 (2015)). For these reasons, the Court
concludes Plaintiff is required to prove that there is a feasible and readily available alternative
that will significantly reduce the risk of suffering that lethal injection will present.
The Court agrees with Defendants that the facts in the Record do not present a triable
dispute on this issue.

Given the risk of suffering that the Court identified as potentially

supported by the Record, (see Part II.A.2, supra), the question is whether (1) the use of nitrogen
gas will cause Plaintiff to become unaware of his choking and breathing difficulties sooner than
he would under the current protocol, and (2) whether that difference in time is sufficient to
permit the Court to find that nitrogen gas will make a “significant” difference in Plaintiff’s
suffering. Put another way: a finder of fact might conclude that if pentobarbital is used, there is a
four minute period of time during which Plaintiff would experience significant suffering. Given
that, could a finder of fact conclude that the use of nitrogen gas will significantly reduce that
period of awareness?
Defendants point to their expert’s supplemental report, wherein he states that “the use of
lethal gas does not hold any advantage compared to lethal injection with respect to pain and
suffering. Both methods would result in minimal pain and suffering.” (Doc. 182-1.) This
requires Plaintiff to identify facts in the Record that create a factual dispute necessitating a trial,
but Plaintiff has not identified any such facts. Dr. Zivot would not address the issue in his
deposition, (Doc. 182-1, pp. 38-40), and Plaintiff does not contend that Dr. Zivot’s testimony
creates a factual dispute. Plaintiff instead relies on Dr. Antognini’s deposition, but the Court has
reviewed the cited testimony and finds nothing that supports Plaintiff’s position.8 Dr. Antognini

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Plaintiff also attempts to create factual disputes about the Missouri Department of Corrections’ efforts to research
the viability and effects of executing prisoners with nitrogen gas, but the issue is not relevant under the governing
legal principles.

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was asked to compare the use of pentobarbital to nitrogen gas, but his answer does not indicate
that there are any differences between them. (Doc. 182-5, pp. 58-59.) To the contrary, he stated:
You know, you get – you can get suffering from hypoxia, you know, because
somebody can be awake and realize that they’re not getting enough oxygen. So
depending on – on how it’s used, you might get more suffering from nitrogen gas
than you would from Pentobarbital. Or you might get less suffering, you know,
it depends on how you would use it, I guess.
(Doc. 182-5, p. 59.) As relevant to the claim at issue, Dr. Antognini specifically stated that he
believed there would be no difference in the “speed” of lethal gas as compared to pentobarbital.
(Id.)

Plaintiff points to Dr. Antognini’s indication that nitrogen gas would “quickly” cause

unconsciousness, (Doc. 182-5, p. 59), but this is unavailing for two reasons. First, Dr. Antognini
said the same thing about pentobarbital; in his opinion, both would “quickly” cause
unconsciousness. Thus, this opinion does not support the proposition that nitrogen hypoxia
would cause unconsciousness sooner than pentobarbital. Second, the premise for Plaintiff’s
claim is that there is a period between unconsciousness and brain death during which he will
experience pain. Therefore, establishing the speed with which unconsciousness will be achieved
does not support Plaintiff’s claim; he must identify evidence establishing how quickly nitrogeninduced hypoxia will cause brain death so that any such evidence can be contrasted with Dr.
Zivot’s testimony that Plaintiff might be aware that he is choking for up to four minutes. There
is no evidence suggesting that nitrogen hypoxia will be faster than pentobarbital, so there is no
factual dispute to resolve. In the absence of evidence contradicting Defendants’ expert and
supporting Plaintiff’s theory, there is not a triable issue.
Plaintiff also points to the fact that Louisiana and Oklahoma have approved the use of
nitrogen gas in their death penalty protocols. This evidence might be relevant in establishing the
feasibility or ready availability of this method of execution, but it does not establish whether

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nitrogen gas will significantly reduce the risk of suffering Plaintiff has described. Plaintiff cites
a report from Oklahoma for the proposition that “high altitude pilots who train to recognize the
symptoms of nitrogen hypoxia in airplane depressurizations do not report any feelings of
suffocation, choking or gagging.” (Doc. 197, p. 48 n.6 (citing Doc. 192-14, p. 78).) Assuming
this is competent evidence that can be considered on summary judgment, Plaintiff is not trained
to recognize the symptoms of nitrogen hypoxia and it is unlikely that the pilots who were trained
to recognize the symptoms of hypoxia also suffered from cavernous hemangioma. Plaintiff
additionally refers to a report from Louisiana, which itself cites other materials for the
proposition that nitrogen hypoxia allows a person to expel carbon dioxide buildup and thereby
reduce suffocation caused by respiratory acidosis. (Doc. 197, p. 48 n.6 (citing Doc. 192-17, p.
19).)

Assuming again that this is competent evidence, Plaintiff’s theory is that he will

experience suffocation due to his tumors, not due to respiratory acidosis. Finally, none of this
evidence purports to compare the effects of nitrogen gas hypoxia to the effects of pentobarbital,
particularly as related to the speed with which brain death will occur. Therefore, this anecdotal
evidence does not conflict with Dr. Antognini’s testimony and therefore does not create a factual
dispute.9
The Record establishes that the use of nitrogen gas will not act faster than pentobarbital.
Therefore, nitrogen gas will not significantly reduce the risk of suffering Plaintiff faces if he is
executed under Missouri’s current protocol.

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Plaintiff has also provided a “Preliminary Draft” of a document prepared at the request of an Oklahoma State
Representative. (Doc. 199-12, pp. 15-28.) The authors’ qualifications to opine on medical matters are not
established. The report bears the instruction “Do Not Cite.” The report generally discusses the feasibility and
effectiveness of using nitrogen gas in executions, but it does not purport to answer the questions relevant to the case.
For these reasons, this report also does not create a factual dispute.

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III. CONCLUSION
For the reasons set forth above, Defendants’ Motion for Summary Judgment on Count I
is GRANTED.
IT IS SO ORDERED.

/s/ Beth Phillips
BETH PHILLIPS, JUDGE
UNITED STATES DISTRICT COURT

DATE: June 15, 2017

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