Submitted October 29, 2015
Appeal from United States District Court for the Western District of Missouri - Jefferson City.
For Ernest Lee Johnson, Plaintiff - Appellant: William Brian Gaddy, Jeremy Sean Weis, GADDY & WEIS, Kansas City, MO.
For George A. Lombardi, David Dormire, Terry Russell, Defendants - Appellees: Gregory Michael Goodwin, Assistant Attorney General, Michael Joseph Spillane, Assistant Attorney General, ATTORNEY GENERAL'S OFFICE, Jefferson City, MO.
Before SMITH, COLLOTON, and GRUENDER, Circuit Judges.
Death row inmate Ernest L. Johnson moves for a stay of his execution scheduled for November 3, 2015, at 6:00 p.m., pending full briefing and argument of his appeal from the district court's dismissal of his complaint filed under 42 U.S.C. § 1983. We deny his motion for a stay.
Johnson underwent a craniotomy surgical procedure in 2008 to remove a brain
tumor. After this surgery, a portion of the tumor remained. The surgery also resulted in a brain defect and scarring issue. Consequently, Johnson has suffered from several seizures in the last few years. After the State of Missouri scheduled his execution, Johnson filed a § 1983 complaint alleging that Missouri's lethal-injection protocol would be unconstitutional as applied to him because of his medical condition. Specifically, Johnson alleged that pentobarbitol, the drug Missouri uses to execute inmates, could trigger a seizure and cause him severe pain. In his complaint, Johnson identified lethal gas as an alternative method of execution permitted under Missouri law. See Mo. Rev. Stat. § 546.720.1.
The district court entered an order denying temporary injunctive relief and dismissing Johnson's complaint. The court determined that Johnson did not state a claim upon which relief could be granted because he failed plausibly to plead sufficient facts establishing the existence of a feasible and readily implementable method of execution. See Fed. R. Civ. Pro. 12(b)(6); Ashcroft v. Iqbal, 55 ...