                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-2163
                         ___________________________

                                   Russell Bucklew

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

                             George A. Lombardi, et al.

                       lllllllllllllllllllll Defendants - Appellees
                                        ____________

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

                            Submitted: September 9, 2014
                               Filed: March 6, 2015
                                  ____________

Before RILEY, Chief Judge, WOLLMAN, LOKEN, MURPHY, BYE, SMITH,
COLLOTON, GRUENDER, SHEPHERD, and KELLY, Circuit Judges, En Banc.
                             ____________

LOKEN, Circuit Judge.

      Russell Bucklew was convicted in state court of murder, kidnapping, and rape
and sentenced to death. After Missouri courts denied post-conviction relief, we
affirmed the district court’s denial of Bucklew’s petition for a federal writ of habeas
corpus. Bucklew v. Luebbers, 436 F.3d 1010, 1013-15 (8th Cir. 2006). This appeal
concerns his § 1983 challenge to Missouri’s lethal injection method of execution.
                                          I.

       On April 9, 2014, the Supreme Court of Missouri issued a writ of execution,
setting Bucklew’s execution date as May 21, 2014. At that time, Bucklew was a
plaintiff in a pending § 1983 action that included a facial Eighth Amendment
challenge to Missouri’s method of execution. The district court tentatively dismissed
that action on May 2. Zink v. Lombardi, No. 12-04209 (W.D. Mo. May 2, 2014).
Bucklew filed this § 1983 action on May 9, primarily asserting that the method of
lethal injection by which Missouri plans to execute him would violate his Eighth
Amendment right to be free of cruel and unusual punishment because of the unique
risk that his serious medical condition, called cavernous hemangioma, will result in
excruciating pain. He also sought a preliminary injunction and a stay of execution.

       On May 16, the district court entered a final order dismissing the complaint in
Zink. Plaintiffs including Bucklew appealed. On May 19, the district court entered
the Order being appealed in this action, denying Bucklew’s motion for a stay of
execution and an injunction and dismissing the Eighth Amendment claim, sua sponte.
Bucklew v. Lombardi, No. 14-8000 (W.D. Mo. May 19, 2014). Bucklew appealed,
raising Eighth Amendment and due process issues, and sought a stay of the May 21
execution.1 A divided panel of this court granted a stay. Bucklew v. Lombardi, 565


      1
         Appellees argue on appeal that Bucklew’s claims are barred by the claim and
issue preclusion effect of the district court’s final judgment in Zink. Bucklew, an
original plaintiff in the Zink action, filed this separate as-applied action on May 9,
2014, long after he joined the facial attack on Missouri’s execution protocol in Zink.
The district court entered its final judgment in Zink on May 16. Appellees argue that
Bucklew’s as-applied challenge is precluded by the final judgment in Zink because
it could have been raised in Zink. “The preclusive effect of a federal-court judgment
is determined by federal common law.” Taylor v. Sturgell, 553 U.S. 880, 891 (2008).
The general rule is that, as between actions pending at the same time, the first
judgment to become final is conclusive in the other action as res judicata, even if the
first judgment was not final when the second action was filed. See Chicago, R.I. &

                                         -2-
F. App’x 562 (8th Cir. 2014). The court en banc vacated the panel’s stay and denied
a stay of execution. Bucklew then applied to the Supreme Court for a stay of
execution. On May 21, the Supreme Court issued an amended order:

             The application for stay of execution of sentence of death . . . is
      treated as an application for stay pending appeal in the Eighth Circuit.
      The application is granted pending the disposition of petitioner’s appeal.
      We leave for further consideration in the lower courts whether an
      evidentiary hearing is necessary.

After the Supreme Court granted a stay pending appeal, we granted initial en banc
review of Bucklew’s appeal and the appeal in Zink and scheduled both cases for
argument on September 9. After the oral arguments, we concluded that Bucklew’s
“as applied” Eighth Amendment claim warrants a separate opinion. His due process
claim is not materially different than the due process claim raised in Zink and will be
resolved in our opinion in that case.




P.R.R. v. Schendel, 270 U.S. 611, 616-17 (1926); Bell v. Sellevold, 713 F.2d 1396,
1404 (8th Cir. 1983); Restatement (Second) of Judgments § 14 cmt. a.

       Appellees did not raise this issue in the district court, and the court did not
address it. As the court dismissed Bucklew’s complaint prior to answer, appellees
were not required to raise this affirmative defense before the court ruled. See Fed. R.
Civ. P. 12(b). It is by no means certain how the principle that applies claim
preclusion to claims that could have been filed in the earlier action -- part of the rule
against “claim splitting” -- would be applied in this unusual situation. See
Restatement (Second) of Judgments §§ 24-26, 33. Therefore, we decline to affirm the
district court on this alternative ground, which was neither presented to nor decided
by that court. Instead, we leave it to the district court to consider on remand “the
question whether and to what extent the bars of res judicata and collateral estoppel
apply,” as we did in Occhino v. United States, 686 F.2d 1302, 1312 (8th Cir. 1982).

                                          -3-
                                          II.

        In resolving an earlier appeal in Zink, we applied the Supreme Court’s
plurality opinion in Baze v. Rees, 553 U.S. 35, 50 (2008), and ruled that, to state an
Eighth Amendment method-of-execution claim, a plaintiff must plausibly allege a
substantial risk of severe pain, and “a feasible and more humane alternative method
of execution, or a purposeful design by the State to inflict unnecessary pain.” In re
Lombardi, 741 F.3d 888, 895-96 (8th Cir.) (en banc), reh’g denied, 741 F.3d 903,
cert. denied, 134 S. Ct. 1790 (2014). When the Zink plaintiffs subsequently declined
to amend their complaint to allege a more humane alternative, the district court
dismissed their facial Eighth Amendment challenge to Missouri’s lethal injection
protocol. That was the primary focus of plaintiffs’ Eighth Amendment appeal in
Zink.

       In the Order being appealed, after denying Bucklew a preliminary injunction
and stay of execution, the district court dismissed the complaint. The court first
concluded that the expert affidavits Bucklew submitted in support of his motion for
stay of execution to show a substantial likelihood of needless pain “do not contain the
specificity necessary to prevail on an Eighth Amendment claim.” That was a merits
analysis appropriate in ruling on a motion for summary judgment, not an analysis of
whether the complaint plausibly pleaded an Eighth Amendment claim under Baze and
Lombardi. However, the court went on to conclude that the complaint must be
dismissed because Bucklew had not alleged that a “feasible and readily available
alternative” method of execution exists, and because plaintiffs in Zink, including
Bucklew, had declined to amend their complaint to allege such an alternative. That
was a properly focused Rule 12 analysis of the pleading.

       On appeal, Bucklew argues, like appellants in Zink, that our decision in
Lombardi misinterpreted the Supreme Court’s decision in Baze. We will resolve that
issue in our separate en banc opinion in Zink. But Bucklew primarily argues that our

                                         -4-
rule in Lombardi does not apply to his separate § 1983 action, or alternatively that he
meets the requirements of that rule, because he has adequately alleged that Missouri’s
method of execution if applied to him would, because of his unique medical
condition, violate the Eighth Amendment standard -- a “substantial risk of serious
harm,” Baze, 553 U.S. at 50 (plurality opinion) -- and a readily available alternative
that would significantly reduce the risk.

       Between our decision in Lombardi on January 24, 2014, and the order staying
Bucklew’s execution pending this appeal, the Supreme Court denied last minute stays
of execution to four Zink plaintiffs, most of whom argued that our decision in
Lombardi misconstrued Baze and therefore warranted stays of execution. The
Supreme Court did not grant Bucklew a stay of execution, but it did grant a stay
pending appeal, which had the same immediate effect. The Court’s decision to grant
a stay pending appeal reflected its determination that Bucklew had shown “a
significant possibility of success on the merits” of his appeal from the district court’s
dismissal of his complaint. Hill v. McDonough, 547 U.S. 573, 584 (2006).
Consideration of why the Court concluded that Bucklew’s challenge to Missouri’s
lethal injection method of execution might be so significantly different requires a
close look at the record on appeal.

                                          III.

      We first quote portions of our prior panel opinion describing the allegations in
Bucklew's complaint and the opinions of his medical experts regarding the medical
condition on which his as-applied challenge is based:

      [W]e set forth verbatim portions of the allegations from Bucklew’s
      complaint regarding his medical condition:

      26.    Mr. Bucklew has suffered from the symptoms of congenital
             cavernous hemangioma his entire life, including frequent

                                          -5-
      hemorrhaging through his facial orifices, disturbances to his
      vision and hearing, pain and pressure in his head, constant
      headaches, dizziness, and episodes of loss of consciousness. He
      frequently bleeds through his mouth, nose and ears, and has
      sometimes bled even through his eyes.
27.   The hemangiomas—which are clumps of weak, malformed
      vessels—fill Mr. Bucklew’s face, head, neck and throat,
      displacing healthy tissue and stealing blood flow from normal
      adjacent tissues, depriving those tissues of necessary oxygen.
28.   The hemangiomas are vascular tumors, and it is in the nature of
      such tumors to continuously expand. Although the tumors are
      classified as benign tumors, their growth is locally invasive and
      destructive.
29.   Over the years, doctors have attempted treatment on many
      occasions, only to conclude that the available treatments—
      chemotherapy, sclerotherapy, radiation therapy and surgery—
      hold no appreciable chance of success.
30.   In 1991, a specialist who examined Mr. Bucklew and treated his
      hemangioma for many years noted that any attempt to remove the
      vascular tumor “would require extensive surgery which would be
      mutilating and very risky as far as blood loss.”
31.   Over the years, attempts at sclerotherapy, chemotherapy and
      radiation therapy all failed. An April 2012 report notes the
      minimal success of prior therapies and states: “The large size
      makes the hemangioma not amenable to sclerotherapy.” The
      report also notes that surgery would result in “large concomitant
      disability and disfiguration.”
32.   Doctors have described the hemangiomas as “very massive,”
      “extensive” and a “large complex right facial mass.” In March
      2003, a doctor who examined Mr. Bucklew wanted him examined
      immediately by a specialist because of progression of the vascular
      tumor, which the doctor believed “could be potentially fatal to the
      patient.” In June 2010, an imaging report stated that Mr.
      Bucklew’s airway was “severely compromised.” A July 2011
      medical report noted there was “difficulty [with] bleeding
      management.” Two months later, another doctor noted the
      alarming expansion of the lesion, stating it encompassed “the

                                  -6-
      entire soft palate and uvula, which are impossible to visualize due
      to the expansion of the lesion.”
33.   Throughout the records, doctors employed or contracted with by
      the State of Missouri repeatedly warn of the expansion of the
      vascular tumor, stating in September 2011 “this has been present
      for 20 plus years, but has increasingly grown larger and larger.”
34.   The possibility of another attempt at treatment was dismissed in
      April 2011, when Mr. Bucklew’s doctor observed “there was
      minimal benefit from the previous sclerotherapy” and the “large
      size” of the hemangioma precluded effective treatment with
      sclerotherapy.
35.   Medical reports in March 2013 describe an episode of severe
      pain, lightheadedness and loss of consciousness. Doctors ordered
      narcotic drugs for pain.
36.   Periodically, the hemangiomas rupture, and Mr. Bucklew is given
      gauze and biohazard bags to keep with him to collect bloody
      discharge. Mr. Bucklew frequently suffers from nausea, dizziness
      and bouts of excruciating pain. He is treated with anti-epileptic
      and narcotic pain medication as well as medication to stabilize his
      mood.

                            *    *    *    *   *

      Bucklew obtained and attached to his complaint a declaration
from Dr. Joel Zivot, a professor of surgery and anesthesiology at Emory
University in Atlanta, Georgia. Dr. Zivot states that he reviewed
Bucklew's medical records for the period of 1986 through February 17,
2014. In most pertinent part, Dr. Zivot stated as follows:

“Based on my review of Mr. Bucklew's medical records, it is my opinion
that a substantial risk exists that, during the execution, Mr. Bucklew will
suffer from extreme or excruciating pain as a result of hemorrhaging or
abnormal circulation of the lethal drug, leading to a prolonged
execution. Mr. Bucklew also has a partially obstructed airway, which
raises a very substantial risk that during an execution he could suffocate.
Further, because Mr. Bucklew is prescribed several medications,



                                     -7-
including medications for pain, there is a substantial risk he will suffer
an adverse event from drug interactions.
...

Methylene blue is a nitric oxide scavenger which will cause a spike in
blood pressure when injected.
...

Blood pressure is not monitored during lethal injection. A spike in Mr.
Bucklew's blood pressure raises a very substantial risk of hemorrhage.
Mr. Bucklew's cavernous hemangiomas are a plexus of blood vessels
that are abnormally weak and can easily rupture, even when the blood
pressure is normal.

If Mr. Bucklew's blood pressure spikes after the methylene blue
injections, the hemangiomas, now further engorged with blood, are
likely to rupture, resulting in significant bleeding in the face, mouth and
throat. If blood enters Mr. Bucklew's airway, it would likely cause
choking and coughing, which Mr. Bucklew will experience as severe
pain and suffocation.

There is also a very substantial risk that, because of Mr. Bucklew's
vascular malformation, the lethal drug will not circulate as intended.
The presence of cavernous hemangiomas creates an alternative low-
resistance pathways to injected drugs. It is very likely that this abnormal
circulation will inhibit the effectiveness of the pentobarbital, thereby
delaying the depression of Mr. Bucklew's central nervous system. The
reduced effectiveness of the pentobarbital and the delayed depression of
the central nervous system will create a substantial risk of a prolonged
and extremely painful execution for Mr. Bucklew.
...

It is important to understand, in the present context, that pentobarbital
is not an analgesic and has no effect on reducing pain. Like other
barbiturates, pentobarbital is antalgesic, that is, it tends to exaggerate or
worsen pain.
...

                                    -8-
Mr. Bucklew's medications may interact with the pentobarbital—an
antalgesic—in a manner that increases pain, causing a substantial risk
that Mr. Bucklew will experience an extremely painful death.
...

Moreover, the passage of time suggests that Mr. Bucklew's
hemangiomas may pose significantly greater risk at this time, as it is the
nature of hemangiomas to continuously expand. For this reason, a
comprehensive examination of Mr. Bucklew is vital to developing a
thorough understanding of the substantial risks posed to Mr. Bucklew
by lethal injection[.] . . .”

Dr. Gregory Jamroz, a radiologist with additional certification in
neuroradiology, similarly described Mr. Bucklew's condition and
concluded:

“[I]t is my opinion to a reasonable degree of scientific certainty that
reliance on a blood-borne sedative or other substance to bring about a
rapid and painless death in Mr. Bucklew's case is questionable, and that
in light of the pre-existing medical condition discussed in this
declaration, examination of the vascular malformations is indicated if
the goal of the administration of the substance is to bring about a rapid
and painless death.”

                           *   *    *    *   *

       On May 16, Bucklew filed . . . a supplemental affidavit from Dr.
Zivot . . . . [which] stated . . . that Bucklew suffered from hypertension
and had a “very large vascular mass” inside his mouth and throat. Dr.
Zivot stated, “The mass arises through the hard palate, extends into the
upper maxilla on the right, and fully encompasses the uvula and distorts
the anatomy of Mr. Bucklew’s airway.” He continued, “Mr. Bucklew’s
airway is . . . friable, meaning it is weak and could tear or rupture. If
you touch it, it bleeds. . . . During an execution, Mr. Bucklew will be at
great risk of choking and suffocating because of his partially obstructed
airway and complications caused by his hemangiomas.” Dr. Zivot
concluded Bucklew's execution would carry “substantial risk to Mr.

                                   -9-
      Bucklew of suffering grave adverse events during the execution,
      including hemorrhaging, suffocating, and experiencing excruciating
      pain.” 565 F. App’x at 565-68.


       Without filing a response to Bucklew’s complaint, defendants filed
Suggestions in Opposition to his motions for a preliminary injunction and stay of
execution. In arguing that Bucklew’s showing was untimely and inadequate to
warrant a stay of execution, defendants noted that Bucklew had urged that Missouri
should not use methylene blue to flush the IV lines in his execution and stated: “The
Department of Corrections will not use methylene blue in Bucklew’s execution and
will not use indigo carmine, a dye which also may raise blood pressure, or any other
dye.” Defendants did not explain what alternative procedure would be used to
perform the dye’s intended function. Defendants further stated:

            After Bucklew finally presented the Department of Corrections
      with his reports . . . the Department, as a courtesy, explored with
      Bucklew the option of paying for tests the parties could agree upon
      before the scheduled execution date. The Department did that in order
      to make the extremely high probability of a rapid and painless execution
      even higher than it already is, not as Bucklew indicates because the
      Department is less than confident Bucklew’s execution, like other
      Missouri executions, will be rapid and painless. . . . It is not the
      Department’s fault Bucklew . . . . waited until shortly before his
      scheduled execution to pursue his current course and created an alleged
      shortness of time that need not have occurred.

In his Reply, Bucklew complained that defendants “have changed their executions
procedures twice in forty-eight hours”:

      On Tuesday, May 13, 2014, Defendants informed Mr. Bucklew’s
      counsel that they would not use methylene blue in Mr. Bucklew’s
      execution because of the blood pressure risks Dr. Zivot identified and
      that they would instead use the substance indigo carmine with the saline

                                        -10-
      solution in the IV line instead. . . . Counsel immediately informed
      Defendants of the problems with their hastily chosen substitute indigo
      carmine. . . . On May 16, 2014 -- just five days before the scheduled
      execution -- Defendants revealed in their Response another hastily made
      change -- indicating that they will not use indigo carmine because of the
      risks posed to Mr. Bucklew . . . .

        Despite this factual record, which went well beyond the four corners of
Bucklew’s complaint, the district court dismissed the complaint, sua sponte, because
it did not contain the “plausible allegation of a feasible and more humane alternative
method” that Lombardi required, and because plaintiffs’ refusal to amend their
complaint in Zink demonstrated that “affording Bucklew an opportunity to amend his
pleading to state a known and feasible alternative would be futile.” Without question,
a district court has the power to dismiss a complaint sua sponte, but only where
plaintiff cannot possibly prevail and amendment would be futile. See Smith v. Boyd,
945 F.2d 1041, 1042-43 (8th Cir. 1991). Here, we conclude the district court
exercised this limited authority prematurely because it was not “patently obvious the
plaintiff could not prevail.” Id. at 1043.

       There is case law supporting Bucklew’s assertion that his as-applied challenge
to Missouri’s method of execution distinguishes his claim from the facial challenge
in Zink. See Siebert v. Allen, 506 F.3d 1047, 1050 (11th Cir. 2007). Defendants in
responding to Bucklew’s motions acknowledged his serious medical condition and
stated that the Department’s lethal injection procedure would be changed on account
of his condition by eliminating the use of methylene blue dye. This concession
bolstered the detailed allegations in Bucklew’s complaint of a substantial risk of
serious and imminent harm that is sure or very likely to occur, allegations far more
specific than the allegations addressing this part of the Baze standard in the second
amended complaint in Zink. Defendants’ concession also tended to support
Bucklew’s detailed allegations that the State had unreasonably refused to change its
regular method of execution to a “feasible, readily implemented” alternative that

                                        -11-
would “significantly reduce” the substantial risk of pain. Baze, 553 U.S. at 52. At
a minimum, it should have warned the court not to assume that Bucklew would
decline an invitation to amend the as-applied challenge in his complaint simply
because the Zink plaintiffs had declined to amend the very different facial challenge
in their complaint.

       For these reasons, we conclude the district court erred in dismissing the
complaint, sua sponte. In our view, the entire record before the district court
resembled the facts before the Supreme Court in Nelson v. Campbell, 541 U.S. 637
(2004): Plaintiff alleged that the State would violate the Eighth Amendment by using
a pre-execution “cut-down” procedure to reach his severely compromised peripheral
veins. Defendants, while asserting that the purported § 1983 claim was barred by the
successive habeas rule, acknowledged that plaintiff had proposed an alternative
procedure that was a preferred method. After concluding that the case must be
remanded because the claim was cognizable under § 1983, the Court noted: “An
evidentiary hearing will in all likelihood be unnecessary, however, as the State now
seems willing to implement petitioner’s proposed alternatives.” Id. at 646. The
record in this case differs because Bucklew’s attorneys have given no indication they
would compromise any of their demands. Indeed, some of those demands appear to
be “relief [that] would foreclose execution,” which would make his § 1983 claim non-
cognizable. Hill, 547 U.S. at 582; see Nelson, 541 U.S. at 648. But the State’s
concession that it would alter its procedure by not using methylene blue dye brought
Bucklew’s claim at least potentially within the purview of Baze and therefore made
pre-answer sua sponte dismissal of the complaint inappropriate.

                                        IV.

      On remand, the district court in addressing the merits of Bucklew’s claim must
proceed from the premise that “a State retains a significant interest in meting out a
sentence of death in a timely fashion.” Nelson, 541 U.S. at 644. Thus, further

                                        -12-
proceedings should be narrowly tailored and expeditiously conducted to address only
those issues that are essential to resolving Bucklew’s as-applied Eighth Amendment
challenge. “The District Court will have the usual authority to control the order of
proof, and if there is a failure of proof on the first element that it chooses to consider,
it would not be an abuse of discretion to give judgment for [defendants] without
taking further evidence.” Helling v. McKinney, 509 U.S. 25, 35 (1993).

       The first step should be a timely response by defendants to the complaint or any
amended complaint. The parties’ respective positions can then be clarified before
determining whether discovery and an evidentiary hearing are needed. 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.” Whitaker
v. Livingston, 732 F.3d 465, 468 (5th Cir.), cert. denied, 134 S. Ct. 417 (2013); see
Lombardi, 741 F.3d at 895. 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. “[C]apital
punishment is constitutional. It necessarily follows that there must be a means of
carrying it out.” Lombardi, 741 F.3d at 895, quoting Baze, 553 U.S. at 47. 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.

       Now that the claim is being addressed on the merits, past delays bring to the
forefront the question of the applicable statute of limitations governing method-of-
execution Eighth Amendment claims, a question this court has not addressed. See
Wellons v. Comm’r, Ga. Dep’t of Corr., 754 F.3d 1260, 1263-64 (11th Cir. 2014);
Walker v. Epps, 550 F.3d 407 (5th Cir. 2008), cert. denied, 130 S. Ct. 57 (2009);
Cooey v. Strickland, 479 F.3d 412, 416-24 (6th Cir. 2007), cert. denied, 128 S. Ct.
2047 (2008). A motion Bucklew filed in camera with this court more than eight years
ago may suggest that his as-applied Eighth Amendment claim could have been

                                           -13-
asserted against any lethal injection protocol, not just the modified protocol adopted
in October 2013.

       Because this decision, when final, terminates Bucklew’s appeal to this court,
the Supreme Court’s stay pending the appeal will expire of its own terms. The writ
of execution has also expired, though of course a new writ may issue. Thus, we leave
to the discretion of the district court whether a temporary stay pendente lite may be
needed. See Hill, 547 U.S. at 584; Cooey v. Strickland, 604 F.3d 939, 946 (6th Cir.),
cert. denied, 130 S. Ct. 3272 (2010).

     The district court’s Order dated May 19, 2014, is reversed and the case is
remanded for further proceedings not inconsistent with this opinion.

BYE, Circuit Judge, with whom MURPHY and KELLY, Circuit Judges, join,
concurring in the result.

       I agree the Court's order from May 19, 2014, must be reversed, and I agree this
matter should be remanded for further proceedings. However, I cannot agree with the
full analysis and commentary of the Court.

       First, I disagree with the Court's interpretation of pleading requirements in
Eighth Amendment cases. However, even assuming the Court is correct a death row
inmate in a facial challenge must identify an alternative method of execution, a death
row inmate in an as-applied challenge is not required to do so. Facial and as-applied
challenges to execution protocols are different. See Siebert v. Allen, 506 F.3d 1047,
1049-50 (11th Cir. 2007) (granting stay on as-applied challenge to execution protocol
while denying stay on facial challenge). In stating the pleading standard, the court
relies on cases involving facial challenges to the general constitutionality of a
particular execution protocol. Those cases did not involve a death penalty inmate
arguing his unique medical condition would substantially enhance the likelihood and

                                        -14-
severity of a painful death. It is my position a death row inmate alleging an Eighth
Amendment as-applied challenge need not plead a readily available alternative
method of execution. A state cannot be excused from taking into account a particular
inmate's existing physical disability or health condition when assessing the propriety
of its execution method. When, as here, a death row inmate with a health condition
does not have sufficient access to information or testing, that inmate cannot be
expected to plead an alternative method.

      Second, the Court seems to construe the Supreme Court's denial of stays of
execution to eight Zink plaintiffs following In re Lombardi, 741 F.3d 888, 897 reh'g
denied, 741 F.3d 903 (8th Cir.), cert. denied Zink v. Lombardi, 134 S. Ct. 1790
(2014), as evidence the Supreme Court agrees with the Eighth Circuit's pleading
requirements. However, there is no indication the Supreme Court considered the
Eighth Circuit's pleading requirement analysis. Therefore, any such inference from
the Supreme Court's recent stay denials is inappropriate.

       Third, the Court asserts, without support, the proposition that no physical
disability or illness could ever foreclose execution. While the Supreme Court has
been clear on the general proposition that, so long as a state-imposed death penalty
is constitutional, there must be some way for states to carry out executions, the
Supreme Court has also been clear that some individuals cannot be executed. See
Hall v. Florida, 134 S. Ct. 1986, 1992 (2014) ("[P]ersons with intellectual disability
may not be executed."); Roper v. Simmons, 543 U.S. 551, 575 (2005) ("[T]he death
penalty cannot be imposed upon juvenile offenders . . . ."); Ford v. Wainwright, 477
U.S. 399, 410 (1986) ("The Eighth Amendment prohibits the State from inflicting the
penalty of death upon a prisoner who is insane."). The Supreme Court has not
addressed the open question of whether there are some physical disabilities or health
conditions which would prevent a state from executing an individual because any
execution would be unconstitutionally cruel and unusual based on that individual's



                                        -15-
particular disability or health condition. This question is not before the Court and the
Court's opinion should not be read to answer this question.

       Fourth, I do not join in the commentary of Section IV. To begin, the majority
asserts, without support from the record, that Bucklew's arguments "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." It is not the role of this Court to speculate on
a party's true intention in filing a lawsuit. Given that a strong possibility of cruel and
unusual punishment during Bucklew's death is at stake, the more likely inference
from Bucklew's pleadings is that he seeks to remedy those concerns rather than
merely satisfy an intellectual curiosity about Missouri's execution protocol or merely
delay his execution. And, as noted above, nothing requires Bucklew to propose a
specific alternative to the execution protocol; no precedent supports the position that
Bucklew is required to "tak[e] a position as to what is needed to fix [the protocol]"
in an as-applied challenge.

       The Court then restates that Bucklew "at the earliest possible time, [] must
identify a feasibly, readily implemented alternative procedure that will significantly
reduce a substantial risk of severe pain and that the State refuses to adopt." Bucklew
is under no obligation to do so. The Court fails to cite, and I have been unable to
find, any support for the proposition Bucklew is required to make any new pleadings,
amendments, or motions "at the earliest possible time." It is within the district court's
control to set any discovery deadlines and conduct proceedings in the normal order
of business. Additionally, for the reasons discussed above, the requirement of
providing an alternative execution protocol does not apply in this matter.

      Finally, the Court improperly suggests Bucklew's as-applied challenge may not
be timely. Such a discussion is unnecessary to the outcome of this appeal, and is
improper because the district court has not yet ruled on the issue. Bucklew's prior in
camera motion is not before the Court. Additionally, it is for the district court to

                                          -16-
determine in the first instance whether Bucklew's claim is timely. Despite the Court's
suggestion Bucklew's claim may be time-barred, I note Bucklew has put forth
substantial evidence to show the claim was brought in a timely manner. This
evidence includes: Missouri has changed its protocol many times since imposing a
sentence of death on Bucklew; Bucklew's condition has become worse over time; and,
because of Missouri's opposition, Bucklew has struggled for years to obtain sufficient
scans to fully understand the extent of his health condition. It is for the district court
to conclude whether Bucklew improperly delayed in filing his claim.

SHEPHERD, Circuit Judge, with whom MURPHY and BYE, Circuit Judges, join,
concurring.

       Although I concur in the opinion, I write separately to reiterate my view that
a prisoner challenging a method of lethal injection under the Eighth Amendment need
not identify an alternative method of execution in the complaint, provided that he
concedes other methods of lethal injection would be constitutional. The Court notes
that “at the earliest possible time, [Bucklew] 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.” Consistent with my dissent in Zink,
a prisoner must only concede there would be a constitutional method of execution in
his complaint and the Court’s reference to the “earliest possible time” should not be
misconstrued as stating a pleading requirement.
                       ______________________________




                                          -17-
