                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-3052
                         ___________________________

                                   Russell Bucklew

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

        Anne L. Precythe, Director of the Department of Corrections, et al.

                       lllllllllllllllllllll Defendants - Appellees
                                        ____________

                      Appeal from United States District Court
                 for the Western District of Missouri - Kansas City
                                  ____________

                             Submitted: February 2, 2018
                                Filed: March 6, 2018
                                   ____________

Before WOLLMAN, LOKEN, and COLLOTON, Circuit Judges.
                         ____________

LOKEN, Circuit Judge

      The issue is whether the Eighth and Fourteenth Amendments, as applied, bar
Missouri officials from employing a procedure that is authorized by Missouri statute
to execute Russell Bucklew.

        In March 2006, Bucklew stole a car; armed himself with pistols, handcuffs, and
a roll of duct tape; and followed his former girlfriend, Stephanie Ray, to the home of
Michael Sanders, where she was living. Bucklew knocked and entered the trailer
with a pistol in each hand when Sanders’s son opened the door. Sanders took the
children to the back room and grabbed a shotgun. Bucklew began shooting. Two
bullets struck Sanders, one piercing his chest. Bucklew fired at Sanders’s six-year-
old son, but missed. As Sanders bled to death, Bucklew struck Ray in the face with
a pistol, handcuffed Ray, dragged her to the stolen car, drove away, and raped Ray
in the back seat of the car. He was apprehended by the highway patrol after a
gunfight in which Bucklew and a trooper were wounded.

        A Missouri state court jury convicted Bucklew of murder, kidnaping, and rape.
The trial court sentenced Bucklew to death, as the jury had recommended. His
conviction and sentence were affirmed on direct appeal. State v. Bucklew, 973
S.W.2d 83 (Mo. banc 1998). The trial court denied his petition for post-conviction
relief, and the Supreme Court of Missouri again affirmed. Bucklew v. State, 38
S.W.3d 395 (Mo. banc 2001). We subsequently affirmed the district court’s denial
of Bucklew’s petition for a federal writ of habeas corpus. Bucklew v. Luebbers, 436
F.3d 1010 (8th Cir. 2006). The Supreme Court of Missouri issued a writ of execution
for May 21, 2014. Bucklew filed this action under 42 U.S.C. § 1983, alleging that
execution by Missouri’s lethal injection protocol, authorized by statute, would
constitute cruel and unusual punishment in violation of the Eighth and Fourteenth
Amendments as applied to him because of his unique medical condition. Bucklew
appeals the district court’s1 grant of summary judgment in favor of the state
defendants because Bucklew failed to present adequate evidence to establish his
claim under the governing standard established by the Supreme Court in Baze v.
Rees, 553 U.S. 35 (2008), and Glossip v. Gross, 135 S. Ct. 2726 (2015). Reviewing
the grant of summary judgment de novo, we affirm.



      1
       The Honorable Beth Phillips, United States District Judge for the Western
District of Missouri.

                                         -2-
                                          I.

       Missouri’s method of execution is by injection of a lethal dose of the drug
pentobarbital. Two days before his scheduled execution in 2014, the district court
denied Bucklew’s motion for a stay of execution and dismissed this as-applied action
sua sponte. On appeal, a divided panel granted a stay of execution, Bucklew v.
Lombardi, 565 Fed. Appx. 562 (8th Cir. 2014); the court en banc vacated the stay.
Bucklew applied to the Supreme Court for a stay of execution, and the Court issued
an Order granting his application “for stay pending appeal in the Eighth Circuit.”
This court, acting en banc, reversed the sua sponte dismissal of Bucklew’s as-applied
Eighth Amendment claim and remanded to the district court for further proceedings.
Bucklew v. Lombardi, 783 F.3d 1120, 1128 (8th Cir. 2015) (“Bucklew I”). On the
same day, the en banc court affirmed the district court’s dismissal on the merits of a
facial challenge to Missouri’s lethal injection protocol filed by several inmates
sentenced to death, including Bucklew. Zink v. Lombardi, 783 F.3d 1089, 1114 (8th
Cir.), cert denied, 135 S. Ct. 2941 (2015).2




      2
        “The doctrine of res judicata or claim preclusion bars relitigation of a § 1983
claim if the prior judgment was a final judgment on the merits rendered by a court of
competent jurisdiction, and if the same cause of action and the same parties or their
privies were involved.” Baker v. Chisom, 501 F.3d 920, 925 (8th Cir. 2007), cert
denied, 554 U.S. 902 (2008). As Bucklew was a plaintiff in Zink, any facial
challenge to the current method of execution in this case is precluded. Defendants
argue that Bucklew’s as-applied challenge is also precluded because it could have
been raised in Zink. See Brown v. St. Louis Police Dep’t, 691 F.2d 393, 396 (8th Cir.
1982). Like the district court, we decline to address this complex issue. See Bucklew
I, 783 F.3d at 1122 n.1; cf. Whole Woman’s Health v. Hellerstedt, 136 S. Ct 2292,
2305 (2016). We likewise decline to address defendants’ claim that Bucklew’s as-
applied challenge is barred by the applicable statute of limitations. See Boyd v.
Warden, Holman Corr. Facility, 856 F.3d 853, 874-76 (11th Cir. 2017).

                                         -3-
       Our decision in Bucklew I set forth in considerable detail the allegations in
Bucklew’s as-applied complaint regarding his medical condition. 783 F.3d at 1124-
26. Bucklew has long suffered from a congenital condition called cavernous
hemangioma, which causes clumps of weak, malformed blood vessels and tumors to
grow in his face, head, neck, and throat. The large, inoperable tumors fill with blood,
periodically rupture, and partially obstruct his airway. In addition, the condition
affects his circulatory system, and he has compromised peripheral veins in his hands
and arms. In his motion for a stay of execution in Bucklew I, Bucklew argued:

      Dr. Joel Zivot, a board-certified anesthesiologist . . . concluded after
      reviewing Mr. Bucklew’s medical records that a substantial risk existed
      that, because of Mr. Bucklew’s vascular malformation, the lethal drug
      will likely not circulate as intended, creating a substantial risk of a
      “prolonged and extremely painful execution.” Dr. Zivot also concluded
      that a very substantial risk existed that Mr. Bucklew would hemorrhage
      during the execution, potentially choking on his own blood -- a risk
      greatly heightened by Mr. Bucklew’s partially obstructed airway.

                                 *    *   *     *   *

      [The Department of Corrections has advised it would not use a dye in
      flushing the intravenous line because Dr. Zivot warned that might cause
      a spike in Bucklew’s blood pressure.] Reactionary changes at the
      eleventh hour, without the guidance of imaging or tests, create a
      substantial risk to Mr. Bucklew, who suffers from a complex and severe
      medical condition that has compromised his veins.

                                 *    *   *     *   *

      The DOC seems to acknowledge they agree with Dr. Zivot that Mr.
      Bucklew’s obstructed airway presents substantial risks of needless pain
      and suffering, but what they plan to do about it is a mystery. Will they
      execute Mr. Bucklew in a seated position? . . . The DOC should be
      required to disclose how it plans to execute Mr. Bucklew so that this
      Court can properly assess whether additional risks are present. . . . Until

                                          -4-
      Mr. Bucklew knows what protocol the DOC will use to kill him, and
      until the DOC is required to conduct the necessary imaging and testing
      to quantify the expansion of Mr. Bucklew’s hemangiomas and the extent
      of his airway obstruction, it is not possible to execute him without
      substantial risk of severe pain and needless suffering.

Defendants’ Suggestions in Opposition argued that Bucklew’s “proposed changes . . .
with the exception of his complaint about [dye], which Missouri will not use in
Bucklew’s execution, are not really changes in the method of execution.”

       Glossip and Baze established two requirements for an Eighth Amendment
challenge to a method of execution. First, the challenger must “establish that the
method presents a risk that is sure or very likely to cause serious illness and needless
suffering, and give rise to sufficiently imminent dangers.” Glossip, 135 S. Ct. at 2737
(emphasis in original), citing Baze, 553 U.S. at 50. This evidence must show that the
pain and suffering being risked is severe in relation to the pain and suffering that is
accepted as inherent in any method of execution. Id. at 2733. Second, the challenger
must “identify an alternative that is feasible, readily implemented, and in fact
significantly reduces a substantial risk of severe pain.” Glossip, 135 S. Ct. at 2737,
citing Baze, 553 U.S. at 52. This two-part standard governs as-applied as well as
facial challenges to a method of execution. See, e.g., Jones v. Kelley, 854 F.3d 1009,
1013, 1016 (8th Cir. 2017); Williams v. Kelley, 854 F.3d 998, 1001 (8th Cir. 2017);
Johnson v. Lombardi, 809 F.3d 388, 390 (8th Cir. 2015); Bucklew I, 783 F.3d at
1123, 1127. As a panel we are bound by these controlling precedents. Bucklew
argues the second Baze/Glossip requirement of a feasible alternative method of
execution that substantially reduces the risk of suffering should not apply to “an
individual who is simply too sick and anomalous to execute in a constitutional
manner,” like those who may not be executed for mental health reasons. See, e.g.,
Ford v. Wainwright, 477 U.S. 399, 410 (1986). The Supreme Court has not
recognized a categorical exemption from the death penalty for individuals with
physical ailments or disabilities. Thus, in the decision on appeal, the district court

                                          -5-
properly applied the Baze/Glossip two-part standard in dismissing Bucklew’s as-
applied claim.

       We concluded in Bucklew I, based on a record “which went well beyond the
four corners of Bucklew’s complaint,” that the complaint’s allegations, bolstered by
defendants’ concession “that the Department’s lethal injection procedure would be
changed on account of his condition by eliminating the use of methylene blue dye,”
sufficiently alleged the first requirement of an as-applied challenge to the method of
execution -- “a substantial risk of serious and imminent harm that is sure or very
likely to occur.” 783 F.3d at 1127. We further concluded the district court’s sua
sponte dismissal was premature because these detailed allegations made it
inappropriate “to assume that Bucklew would decline an invitation to amend the as-
applied challenge” to plausibly allege a feasible and more humane alternative method
of execution, the second requirement under the Baze/Glossip standard. Id. In
remanding, we directed that further proceedings “be narrowly tailored and
expeditiously conducted to address only those issues that are essential to resolving”
the as-applied challenge. Id. at 1128. We explained:

      Bucklew’s arguments on appeal raise an inference that he is
      impermissibly seeking merely to investigate the protocol without taking
      a position as to what is needed to fix it. He may not be “permitted to
      supervise every step of the execution process.” Rather, at the earliest
      possible time, he must identify a feasible, readily implemented
      alternative procedure that will significantly reduce a substantial risk of
      severe pain and that the State refuses to adopt. . . . Any assertion that all
      methods of execution are unconstitutional does not state a plausible
      claim under the Eighth Amendment or a cognizable claim under § 1983.

Id. (quotation omitted; emphasis in original).




                                          -6-
                                         II.

      On remand, consistent with our directive, the district court first ordered
Bucklew to file an amended complaint that adequately identified an alternative
procedure. Twice, Bucklew filed amended complaints that failed to comply with this
order. Given one last chance to comply or face dismissal, on October 13, 2015,
Bucklew filed a Fourth Amended Complaint. As relevant here, it alleged:

             106. Based on Mr. Bucklew’s unique and severe condition, there
      is no way to proceed with Mr. Bucklew’s execution under Missouri’s
      lethal injection protocol without a substantial risk to Mr. Bucklew of
      suffering grave adverse events during the execution, including
      hemorrhaging, suffocating or experiencing excruciating pain.

             107. Under any scenario or with any of lethal drug, execution by
      lethal injection poses an enormous risk that Mr. Bucklew will suffer
      extreme, excruciating and prolonged pain -- all accompanied by choking
      and struggling for air.

              128. In May 2014, the DOC also proposed a second adjustment
      in its protocol, offering to adjust the gurney so that Mr. Bucklew is not
      lying completely prone.3 . . . As a practical matter, no adjustment would
      likely be sufficient, as the stress of the execution may unavoidably cause
      Mr. Bucklew’s hemangiomas to rupture, leading to hemorrhaging,
      bleeding in his throat and through his facial orifices, and coughing and
      choking on his own blood.

            129. In order to fully evaluate and establish the risks to Mr.
      Bucklew from execution by lethal injection, a full and complete set of
      imaging studies must be conducted.


      3
        In their answer to paragraph 128, defendants alleged: “Defendants admit that
the Defendants offered to have the anesthesiologist position the angle of the gurney
in a proper position.” Thus, this fact was established by the pleadings.

                                         -7-
             139. Mr. Bucklew is mindful of the Court’s directive to allege a
      feasible, readily implemented alternative procedure . . . . Mr. Bucklew
      has complied . . . by researching and proposing execution by lethal gas,
      which is specifically authorized by Missouri law and which Missouri’s
      Attorney General has stated the DOC is prepared to implement.

            150. In adherence with the pleading requirements set forth in
      Glossip, and as stated above, Mr. Bucklew specifically alleges lethal gas
      as a feasible and available alternative method that will significantly
      reduce the risk of severe pain to Mr. Bucklew.

In other words, Bucklew took the position that no modification of Missouri’s lethal
injection method of execution could be constitutionally applied to execute Bucklew.
He proposed massive discovery allegedly needed to establish the first Baze/Glossip
requirement. But his legal theory is that alternative procedures such as adjusting the
gurney’s position are irrelevant because no lethal injection procedure would be
constitutional, only a change to the use of lethal gas would be adequate.

       Bucklew’s as-applied claim focused on two aspects of his medical condition.
First, Bucklew’s experts initially opined that his peripheral veins are so weak that
injection of a lethal dose of pentobarbital would not adequately circulate, leading to
a prolonged and painful execution. The district court concluded that discovery and
expert opinions developed on remand refuted this claim. The lethal injection protocol
provides that medical personnel may insert the primary intravenous (IV) line “as a
central venous line” and may dispense with a secondary peripheral IV line if “the
prisoner’s physical condition makes it unduly difficult to insert more than one IV.”
Bucklew’s expert Dr. Zivot conceded, and Defendants’ expert, Dr. Joseph Antognini,
agreed, that the central femoral vein can circulate a “fair amount of fluid” without
serious risk of rupture and that Bucklew’s medical condition will not affect the flow
of pentobarbital after it is injected through this vein.




                                         -8-
        Second, Bucklew’s experts opined that his condition will cause him to
experience severe choking and suffocation during execution by lethal injection.
When Bucklew is supine, gravity pulls the hemangioma tumor into his throat which
causes his breathing to be labored and the tumor to rupture and bleed. When
conscious, Bucklew can “adjust” his breathing with repeated swallowing that
prevents the tumor from blocking his airway. But during the “twilight stage” of a
lethal injection execution, Dr. Zivot opined that Bucklew will be aware he is choking
on his own blood and in pain before the pentobarbital renders him unconscious and
unaware of pain. Based on a study of lethal injections in horses, Dr. Zivot estimated
there could be a period as short as 52 seconds and as long as 240 seconds when
Bucklew is conscious but immobile and unable to adjust his breathing; his attempts
to breath will create friction, causing the tumor to bleed and possibly hemorrhage.
In Dr. Zivot’s opinion, there is a “very, very high likelihood” that Bucklew will suffer
“choking complications, including visible hemorrhaging,” if he is executed by any
means of lethal injection, including using the drug pentobarbital.

       According to Defendants’ expert, Dr. Antognini, pentobarbital causes death by
“producing rapid, deep unconscious[ness], respiratory depression, followed by . . .
complete absence of respiration, decreased oxygen levels, slowing of the heart, and
then the heart stopping.” In contrast to Dr. Zivot, Dr. Antognini opined that
pentobarbital would cause “rapid and deep unconsciousness” within 20-30 seconds
of entering Bucklew’s blood stream, rendering him insensate to bleeding and choking
sensations. Dr. Antognini also challenged Dr. Zivot’s opinion that a supine Bucklew,
unable to adjust his breathing, will be aware he is choking on his own blood and in
pain from the tumor blocking his airway before the pentobarbital renders him
unconscious. Dr. Antognini noted that, between 2000 and 2003, Bucklew underwent
general anesthesia eight times, at least once in a supine position. In December 2016,
Bucklew lay supine for over an hour undergoing an MRI, with no more than
discomfort. The MRI revealed that his tumor had slightly shrunk since 2010.



                                          -9-
       In granting defendants summary judgment, the district court declined to rely
on the first Glossip/Baze requirement because these conflicting expert opinions
“would permit a factfinder to conclude that for as long as four minutes [after the
injection of pentobarbital Bucklew] could be aware that he is choking or unable to
breathe but be unable [to] ‘adjust’ his breathing to remedy the situation.” Rather, the
court held that Bucklew failed to provide adequate evidence that his alternative
method of execution -- lethal gas -- was a “feasible, readily implemented” alternative
that would “in fact significantly reduce a substantial risk of severe pain” as compared
to lethal injection. Glossip, 135 S.Ct. at 2737; Baze, 553 U.S. at 52.

                                          III.

       To succeed in his challenge to Missouri’s lethal injection execution protocol,
Bucklew must establish both prongs of the Glossip/Baze standard. Glossip, 135 S.
Ct. 2737. The district court held that Bucklew failed to establish the second prong
of Glossip/Baze by showing that an alternative method of execution would “in fact
significantly reduce a substantial risk of severe pain.” As noted, Bucklew argues the
Glossip/Baze standard should not apply to an as-applied challenge to a method of
execution, an argument our controlling precedents have rejected. He raises two
additional issues on appeal.

       A. Bucklew first argues the district court erred in granting summary judgment
on the second Glossip/Baze requirement because he presented sufficient evidence that
his proposed alternative method of execution -- death through nitrogen gas-induced
hypoxia -- “would substantially reduce his suffering.” Summary judgment is not
appropriate when there are material issues of disputed fact, and the Supreme Court
in Glossip made clear that this issue may require findings of fact that are reviewed for
clear error. See 135 S. Ct. at 2739-41 (majority opinion) and 2786 (Sotomayor, J.,
dissenting). However, whether a method of execution “constitutes cruel and unusual
punishment is a question of law.” Swindler v. Lockhart, 885 F.2d 1342, 1350 (8th

                                         -10-
Cir. 1989). Thus, unless there are material underlying issues of disputed fact, it is
appropriate to resolve this ultimate issue of law by summary judgment.

      Nitrogen hypoxia is an authorized method of execution under Missouri Law.
See Mo. Stat. Ann. § 546.720. Missouri has not used this method of execution since
1965 and does not currently have a protocol in place for execution by lethal gas. But
there are ongoing studies of the method in other States and at least preliminary
indications that Missouri will undertake to develop a protocol. Defendants do not
argue this is not a feasible and available alternative.

       The district court granted summary judgment based on Bucklew’s failure to
provide adequate evidence that execution by nitrogen hypoxia would substantially
reduce the risk of pain or suffering. The court allowed Bucklew extensive discovery
into defendants’ knowledge regarding execution by lethal gas. But Missouri’s lack
of recent experience meant that this discovery produced little relevant evidence and
no evidence that the risk posed by lethal injection is substantial when compared to the
risk posed by lethal gas. See Glossip, 135 S. Ct. at 2738; Johnson, 809 F.3d at 391.
Bucklew’s theory is that execution by nitrogen hypoxia would render Bucklew
insensate more quickly than lethal injection and would not cause choking and
bleeding in his tumor-blocked airway. But his expert, Dr. Zivot, provided no support
for this theory. Dr. Zivot’s Supplemental Expert Report explained:

      [W]hile I can assess Mr. Bucklew’s current medical status and render an
      expert opinion as to the documented and significant risks associated
      with executing Mr. Bucklew under Missouri’s current Execution
      Procedure, I cannot advise counsel or the Court on how to execute Mr.
      Bucklew in a way that would satisfy Constitutional requirements.

      Lacking affirmative comparative evidence, Bucklew relied on Dr. Antognini’s
deposition. In his Expert Report, Dr. Antognini concluded that “the use of lethal gas


                                         -11-
would not significantly lessen any suffering or be less painful than lethal injection in
this inmate.” At his deposition, Dr. Antognini was asked:

             Q. Why does lethal gas not hold any advantage compared to lethal
      injection.

               A. Well . . . there are a lot of types of gases that could be used
      . . . . [U]sing gas would not significantly lessen any suffering or be less
      painful. Because, again, their onset of action is going to be relatively
      fast, just like Pentobarbital’s onset -- onset of action.

             Q. That’s it? Simply because it would happen quickly?

             A. Correct.

The district court concluded this opinion provided nothing to compare:

      Dr. Antognini specifically stated that he believed there would be no
      difference in the “speed” of lethal gas as compared to pentobarbital. . . .
      In the absence of evidence contradicting Defendants’ expert and
      supporting Plaintiff’s theory, there is not a triable issue.

       On appeal, Bucklew argues the district court should have compared Dr. Zivot’s
opinion that lethal injection would take up to four minutes to cause Bucklew’s brain
death with Dr. Antognini’s testimony that lethal gas would render him unconscious
in the same amount of time as lethal injection, 20 to 30 seconds. But Dr. Antognini’s
comparative testimony was that both methods would result in unconsciousness in
approximately the same amount of time. Bucklew offered no contrary comparative
evidence and thus the district court correctly concluded that he failed to satisfy his
burden to provide evidence “establishing a known and available alternative that
would significantly reduce a substantial risk of severe pain.” McGehee v.
Hutchinson, 854 F.3d 488, 493 (8th Cir. 2017).


                                         -12-
      In addition, Bucklew’s claim that he will experience choking sensations during
an execution by lethal injection but not by nitrogen hypoxia rests on the proposition
that he could be seated during the latter but not the former. He argues there is
evidence he will be forced to remain supine during an execution by lethal injection,
when his tumor will cause him to sense he is choking on his own blood, whereas he
could remain seated during the administration of lethal gas, which would not cause
a choking sensation. But this argument lacks factual support in the record. Having
taken the position that any lethal injection procedure would violate the Eighth
Amendment, Bucklew made no effort to determine what changes, if any, the DOC
would make in applying its lethal injection protocol in executing Bucklew, other than
defendants advising -- prior to remand by this court -- that dye would not be used.

       Based on Bucklew’s argument to the en banc court, we expected that the core
of the proceedings on remand would be defining what changes defendants would
make on account of Bucklew’s medical condition and then evaluating that modified
procedure under the two-part Baze/Glossip standard. On remand, Director of
Corrections Ann Precythe testified that the medical members of the execution team
are provided a prisoner’s medical history in preparing for the execution. Precythe has
authority to make changes in the execution protocol, such as how the primary IV line
will be inserted in the central femoral vein or how the gurney will be positioned, if
the team advises that changes are needed. While Bucklew sought and was denied
discovery of the identities of the execution team’s medical members, he never urged
the district court to establish a suitable fact-finding procedure -- for example, by
anonymous interrogatories or written deposition questions to the execution team
members -- for discovery of facts needed for the DOC to define the as-applied lethal
injection protocol it intends to use for Bucklew. As Bucklew did not pursue these
issues, the pleadings established that defendants have proposed to reposition the
gurney during Bucklew’s deposition, and Director Precythe testified that she has
authority to make this type of change in the execution protocol based on the execution
team’s advice based on review of Bucklew’s medical history, but the record does not

                                        -13-
disclose whether Bucklew will in fact be supine during the execution,4 nor does it
disclose that a “cut-down” procedure will not be used to place the primary IV line in
his central femoral vein, a procedure Dr. Antognini opined was unnecessary.
Bucklew simply asserts that, in comparing execution by lethal injection and by lethal
gas, we must accept his speculation that defendants will employ these risk-increasing
procedures. This we will not do.

       Like the district court, we conclude the summary judgment record contains no
basis to conclude that Bucklew’s risk of severe pain would be substantially reduced
by use of nitrogen hypoxia instead of lethal injection as the method of execution.
Evidence that “is equivocal, lacks scientific consensus and presents a paucity of
reliable scientific evidence” does not establish that an execution is sure or very likely
to cause serious illness and needless suffering. Williams v. Kelley, 854 F.3d at 1001
(quotation omitted). Therefore, he failed to establish the second prong of the
Glossip/Baze standard.

       B. Bucklew further contends the district court erred in denying his requests for
discovery relating to “M2” and “M3,” two members of the lethal injection execution
team. Bucklew argues he was entitled to discovery of the medical technicians’
qualifications, training, and experience because it would “illuminate the nature and
extent of the risks of suffering he faces.” For example, if M3 was not qualified to
safely place his IV in the central femoral vein, this would directly impact the risk of


      4
        Dr. Zivot surmised that Bucklew will be required to lie flat during lethal
injection based on what he observed at an execution in Georgia. He gave no reason
to believe that pentobarbital could not be injected through a femoral vein while
Bucklew is seated. He merely opined that “[i]t’s more difficult” to administer an
anesthetic to someone who is sitting up. Dr. Antognini, in addition to opining that
Bucklew would be rendered unconscious and insensate within 20 to 30 seconds of
pentobarbital injection, noted that it was not necessary that Bucklew be supine in
order to inject pentobarbital in his femoral vein.

                                          -14-
pain and suffering. We review a district court’s discovery rulings narrowly and with
great deference and will reverse only for a “gross abuse of discretion resulting in
fundamental unfairness.” Marksmeier v. Davie, 622 F.3d 896, 903 (8th Cir. 2010).

       Bucklew’s argument proceeds from the premise that M2 and M3 may not be
qualified for the positions for which they have been hired. But we will not assume
that Missouri employs personnel who are incompetent or unqualified to perform their
assigned duties. See Clemons v. Crawford, 585 F.3d 1119, 1128 (8th Cir. 2009). He
further argues that deposition of M2 and M3 is necessary to understand how they will
handle a circumstance in case something goes wrong during Bucklew’s execution.
The potentiality that something may go wrong in an execution does not give rise to
an Eighth Amendment violation. Zink, 783 F.3d at 1101. “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. . . . [A]n isolated mishap alone
does not give rise to an Eighth Amendment violation.” Baze, 553 U.S. at 47, 50.
Thus, the district court’s ruling was consistent with our instruction in remanding that
Bucklew “may not be permitted to supervise every step of the execution process.”
Bucklew I, 783 F.3d at 1128 (quotation omitted). The Baze/Glossip evaluation must
be based on the as-applied pre-execution protocol, assuming that those responsible
for carrying out the sentence are competent and qualified to do so, and that the
procedure will go as intended.

                                   III. Conclusion

       Having thoroughly reviewed the record, we conclude that Bucklew has failed
to establish that lethal injection, as applied to him, constitutes cruel and unusual
punishment under the Eighth and Fourteenth Amendments. Therefore, we affirm the
judgment of the district court.




                                         -15-
COLLOTON, Circuit Judge, dissenting.

        Russell Bucklew alleges that the State of Missouri’s method of execution by
lethal injection violates his rights under the Eighth and Fourteenth Amendments. He
seeks an injunction prohibiting an execution by that method. The district court
granted summary judgment for the State, but there are genuine disputes of material
fact that require findings of fact by the district court before this dispute can be
resolved. I would therefore remand the case for the district court promptly to conduct
further proceedings.

       Bucklew’s claim under 42 U.S.C. § 1983 requires him to prove two elements:
(1) that the State’s method of execution is sure or very likely to cause him severe
pain, and (2) that an alternative method of execution that is feasible and readily
implemented would significantly reduce the substantial risk of severe pain. Glossip
v. Gross, 135 S. Ct. 2726, 2737 (2015); Bucklew v. Lombardi, 783 F.3d 1120, 1123,
1128 (8th Cir. 2015) (en banc). On the first element, the district court concluded that
taking the evidence in the light most favorable to Bucklew, there is a substantial risk
under Missouri’s lethal injection protocol that Bucklew will experience choking and
an inability to breathe for up to four minutes. On the second element, however, the
court ruled as a matter of law that Bucklew’s suggested alternative
method—execution by administration of nitrogen gas—would not significantly
reduce the substantial risk that the court identified under the first element. In my
view, the district court’s reasoning as to the first element is inconsistent with its
summary disposition of Bucklew’s claim on the second.

      On the first element, Bucklew’s theory is that he will suffer severe pain by
prolonged choking or suffocation if the State executes him by lethal injection. He
contends that when he lies supine on the execution gurney, tumors in his throat will
block his airway unless he can “adjust” his positioning to enable breathing. Bucklew



                                         -16-
argues that if an injection of pentobarbital renders him unable to adjust his
positioning while he can still sense pain, then he will choke or suffocate.

       In assessing that claim, the district court cited conflicting expert testimony
from Bucklew’s expert, Dr. Joel Zivot, and the State’s expert, Dr. Joseph Antognini.
Dr. Antognini testified that if the State proceeded by way of lethal injection using
pentobarbital, then Bucklew would be unconscious within twenty to thirty seconds
and incapable of experiencing pain at that point. R. Doc. 182-5, at 10, 40-41. Dr.
Zivot, however, differed: “I strongly disagree with Dr. Antognini’s repeated claim
that the pentobarbital injection would result in ‘rapid unconsciousness’ and therefore
Mr. Bucklew would not experience any suffocating or choking.” R. Doc. 182-1, at
147. Zivot opined that Bucklew “would likely experience unconsciousness that sets
in progressively as the chemical circulates through his system,” and that “during this
in-between twilight stage,” Bucklew “is likely to experience prolonged feelings of
suffocation and excruciating pain.” Id.

       In his deposition, Dr. Zivot opined that “there will be points,” before Bucklew
dies, “where he’s beginning to experience the effects of the pentobarbital, where his
ability to control and regulate and adjust his airway will be impaired, although there
will still be the experience capable of knowing that he cannot make the adjustment,
and will experience it as choking.” Id. at 81. When directed to Dr. Antognini’s
opinion that Bucklew would be unaware of noxious stimuli within twenty to thirty
seconds of a pentobarbital injection, Dr. Zivot observed that Antognini’s opinion was
based on a study involving dogs from fifty years ago and testified that his “number
would be longer than that.” Id. at 85. When asked for his “number,” Dr. Zivot
pointed to a study on lethal injections administered to horses; he said the study
recorded “a range of as short as fifty-two seconds and as long as about two hundred
and forty seconds before they see isoelectric EEG.” Id. at 85-86. Dr. Zivot noted that
the “number” that he derived from the horse study was “more than twice as long as”
the number suggested by Dr. Antognini. Id. at 86. He defined “isoelectric EEG” as

                                        -17-
“indicative of at least electrical silence on the parts of the brain that the
electroencephalogram has access to.” Id.

       The district court observed that “[a]n execution is typically conducted with the
prisoner lying on his back,” and that the record “establishes that [Bucklew] has
difficulty breathing while in that position because the tumors can cause choking or
an inability to breathe.” The court understood Dr. Zivot to mean that “it could be
fifty-two to 240 seconds before the pentobarbital induces a state in which [Bucklew]
could no longer sense that he is choking or unable to breathe.” Thus, the court
concluded that “construing the Record in [Bucklew’s] favor reveals that it could be
fifty-two to 240 seconds before the pentobarbital induces a state in which [Bucklew]
could no longer sense that he is choking or unable to breathe.” Again, the court
reasoned that “the facts construed in [Bucklew’s] favor would permit a factfinder to
conclude that for as long as four minutes [Bucklew] could be aware that he is choking
or unable to breathe but be unable to ‘adjust’ his breathing to remedy the situation.”
On that basis, the court presumed for purposes of the motion for summary judgment
that “there is a substantial risk that [Bucklew] will experience choking and an
inability to breathe for up to four minutes.”

       The State disputes that there is a genuine dispute of material fact on the first
element of Bucklew’s claim, but the district court properly concluded that findings
of fact were required. Bucklew pointed to evidence from Missouri corrections
officials that prisoners have always laid flat on their backs during executions by lethal
injection in Missouri. R. Doc. 182-7, at 10; R. Doc. 182-9, at 1; R. Doc. 182-12, at
29, 91. One official testified that he did not know whether the gurney could be
adjusted. R. Doc. 182-12, at 91. Another official believed that the head of the gurney
“could” be raised (or that a gurney with that capability could be acquired), and that
an anesthesiologist would have “the freedom” to adjust the gurney “if” he or she
determined that it would be in the best medical interest of the offender to do so. R.
Doc. 182-7, at 14. But the State did not present evidence about how it would position

                                          -18-
Bucklew or the gurney during his execution. On a motion for summary judgment, the
district court was required to construe the evidence in the light most favorable to
Bucklew. Under that standard, without undisputed evidence from the State that it
would alter its ordinary procedures, the court did not err by concluding that a finder
of fact could infer that the State would proceed as in all other executions, with
Bucklew lying on his back.5

       The State argues that the district court erred in discerning a genuine dispute of
material fact on the first element because Dr. Zivot did not specify the length of the
expected “twilight stage” during which Bucklew would be unable to adjust his
positioning yet still sense pain. The State also complains that Dr. Zivot did not
specify that Bucklew’s pain awareness would continue for fifty-two seconds or longer
until brain waves ceased. There certainly are grounds to attack the reliability and
credibility of Dr. Zivot’s opinion, including the imprecision of some of his testimony,
his opposition to all forms of lethal injection, his possible misreading of the horse
study on which he partially relied, and his inaccurate predictions of calamities at prior
executions. But he did opine that Bucklew was likely to “experience prolonged
feelings of suffocation and excruciating pain” if executed by lethal injection, R. Doc.
182-1, at 147, and that there “will be points” before Bucklew dies when his ability to
regulate his airway will be impaired so that he “will experience it as choking.” Id. at


      5
        Bucklew alleged in Paragraph 128 of his complaint that the State had offered
to adjust the gurney so that Bucklew is not lying completely prone, but then
continued as follows immediately thereafter: “Although the stated intent was to
reduce the choking risk to Mr. Bucklew, the DOC has obtained no imaging studies
of Mr. Bucklew since 2010, and therefore has no information on which to base any
decisions about the angle of the gurney.” R. Doc. 53, at 43-44. The district court
noted the State’s suggestion “that the execution could be performed with [Bucklew]
in a different position,” but explained that “there is no evidence whether this has an
effect on the procedure as a whole,” and concluded that the State had “not provided
the Court with a basis for granting summary judgment based on the possibility of
performing the execution with [Bucklew] in a sitting (or other) position.”

                                          -19-
81. The district court did not err in concluding that it could not resolve the dispute
between the experts on summary judgment.

        On the second element of Bucklew’s claim, the district court concluded as a
matter of law that Bucklew failed to show that his proposed alternative method of
execution—administration of nitrogen gas—would significantly reduce the
substantial risk of severe pain that the court recognized under the first element. The
majority affirms the district court’s judgment on this basis. Taking the evidence in
the light most favorable to Bucklew, however, a factfinder could conclude that
nitrogen gas would render Bucklew insensate more quickly than pentobarbital and
would thus eliminate the risk that he would experience prolonged feelings of choking
or suffocation. Dr. Antognini testified that a person who is administered nitrogen gas
“would be unconscious very quickly,” and that the onset of action from lethal gas “is
going to be relatively fast, just like Pentobarbital’s onset.” R. Doc. 182-5, at 58-59
(emphasis added). Given Dr. Antognini’s testimony that pentobarbital would render
Bucklew insensate within twenty to thirty seconds, the record in the light most
favorable to Bucklew supports a finding based on Antognini’s testimony that nitrogen
gas would relieve Bucklew from any pain of choking or suffocating within twenty to
thirty seconds. A trier of fact may accept all, some, or none of a witness’s testimony,
United States v. Candie, 974 F.2d 61, 65 (8th Cir. 1992), and a plaintiff may rely on
testimony from the defendant’s expert to meet his burden if the testimony is
advantageous to the plaintiff. See IBEW Local 98 Pension Fund v. Best Buy Co., Inc.,
818 F.3d 775, 782 (8th Cir. 2016). If the factfinder accepted Dr. Zivot’s testimony
as to the effect of pentobarbital, and Dr. Antognini’s uncontroverted testimony as to
effect of nitrogen gas, then Bucklew’s proposed alternative method would
significantly reduce the substantial risk of severe pain that the district court identified
in its analysis of the first element.

    For these reasons, there are genuine disputes of material fact that preclude
summary judgment and require findings of fact by the district court. I would

                                           -20-
therefore remand the case for further proceedings. The district court may then
promptly make appropriate factual findings about, among other things, how Bucklew
will be positioned during an execution, whether his airway will be blocked during an
execution, and how pentobarbital (and, if necessary, nitrogen gas) will affect his
consciousness and ability to sense potential pain.

                                   *       *       *

      The State contends that we should not reach the merits of Bucklew’s claim
because several procedural obstacles require dismissal of his complaint. The majority
does not rely on these points, and I find them unavailing.

       First, the State contends that Bucklew did not raise his present claim in his
fourth amended complaint. Bucklew’s complaint, however, does allege the essence
of his current theory. The complaint asserts that the tumors in Bucklew’s throat
require “him to sleep with his upper body elevated” because if he lies flat, “the tumor
then fully obstructs his airway.” Id. at 18-19. It continued: “Executions are
conducted on a gurney, and the risks arising from Mr. Bucklew’s airway are even
greater if he is lying flat. Because of the hemangiomas, Mr. Bucklew is unable to
sleep in a normal recumbent position because the tumors cause greater obstruction in
that position.” R. Doc. 53, at 35. Bucklew further alleged that execution by lethal
injection “poses an enormous risk that Mr. Bucklew will suffer extreme, excruciating
and prolonged pain – all accompanied by choking and struggling for air.” Id. at 36.
The complaint was adequate under a notice pleading regime to raise a claim that the
execution procedure would result in an obstructed airway and choking or suffocation.

      If necessary, moreover, the district court acted within its discretion by treating
the complaint as impliedly amended to include Bucklew’s present claim. See Fed. R.
Civ. P. 15(b)(2). Bucklew clearly notified the State of his contention in his
opposition to the State’s motion for summary judgment. R. Doc. 192-1, at 1-3, 11-17.

                                         -21-
Yet rather than communicate surprise and object that the claim was not pleaded, the
State addressed Bucklew’s contention on the merits. R. Doc. 200, at 4-5. Where a
party has actual notice of an unpleaded issue and has been given an adequate
opportunity to cure any surprise resulting from a change in the pleadings, there is
implied consent to an amendment. Trip Mate, Inc. v. Stonebridge Cas. Ins. Co., 768
F.3d 779, 784-85 (8th Cir. 2014).

       Second, the State argues that the five-year statute of limitations bars Bucklew’s
claim, because he was aware of his claim in 2008 and did not file his complaint until
May 9, 2014. A claim under § 1983 accrues when a plaintiff has “a complete and
present cause of action” and “can file suit and obtain relief.” Wallace v. Kato, 549
U.S. 384, 388 (2007) (quoting Bay Area Laundry & Dry Cleaning Pension Trust
Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997)). Bucklew asserts that he did
not have knowledge of his present claim, and therefore could not have filed suit and
obtained relief, until his medical condition progressed and he was examined by Dr.
Zivot in April 2014. As evidence that Bucklew could have brought his claim earlier,
the State relies on a 2008 petition that Bucklew submitted to the Missouri Supreme
Court. The petition sought funding for an expert witness to investigate the interaction
of the State’s existing execution protocol with Bucklew’s health condition. The
possible claim addressed in the 2008 funding petition, however, focused on the
potential for uncontrolled bleeding and ineffective circulation of drugs within
Bucklew’s body under the State’s former three-drug execution protocol. The petition
does not demonstrate that Bucklew was then on notice of a claim that a future
execution protocol using the single drug pentobarbital would create a substantial risk
of severe pain resulting from tumors blocking his airway while laying supine during
an execution.

      Third, the State urges that Bucklew’s claim is barred by res judicata or claim
preclusion, because Bucklew could have litigated his as-applied challenge to the
execution protocol in an earlier case styled Zink v. Lombardi, No. 12-04209-CV-C-

                                         -22-
BP. In Zink, a group of inmates sentenced to death, including Bucklew, brought a
facial challenge to Missouri’s execution protocol. A complaint was filed in August
2012, and the eventual deadline for motions to amend pleadings was January 27,
2014. Principles of claim preclusion do not bar Bucklew’s as-applied challenge if he
was unaware of the basis for the claim in time to include it in the Zink litigation. See
Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2305 (2016). The State again
points to Bucklew’s 2008 funding petition in support of its preclusion defense, but
for reasons discussed, that petition does not establish that Bucklew’s present claim
was available to him in 2008. At oral argument, the State argued that Bucklew could
have added his as-applied challenge to the Zink litigation after he was examined by
Dr. Zivot in April 2014, because the district court granted the Zink plaintiffs leave to
amend their complaint in May 2014. But the court’s order allowed the Zink plaintiffs
leave to amend only a single count of the complaint to allege a feasible alternative
method of execution. The order did not reopen the pleadings deadline for as-applied
claims by the several individual plaintiffs. See Zink v. Lombardi, No. 12-04209-CV-
C-BP, 2014 WL 11309998, at *4-5, 12 (W.D. Mo. May 2, 2014). The State therefore
has not established that Bucklew’s as-applied claim is barred by res judicata.

                                   *       *       *

     For these reasons, I would reverse the judgment of the district court and
remand for further proceedings to be conducted with dispatch.
                      ______________________________




                                         -23-
