                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                ___________

                     Nos. 08-2807/08-2813/08-2894/08-2895
                                ___________

Reginald Clemons; Richard D. Clay;       *
Jeffrey R. Ferguson; Roderick Nunley, *
                                         *
       Plaintiffs,                       *
                                         *
Michael Anthony Taylor; Martin Link; *
Mark Christeson; William L. Rousan; *
John Charles Middleton; Russell Earl *       Appeals from the United States
Bucklew; Earl Ringo, Jr.,                *   District Court for the Western
                                         *   District of Missouri.
       Intervenor Plaintiffs/Appellants, *
                                         *
              v.                         *
                                         *
Larry Crawford; James D. Purkett;        *
Terry Moore,                             *
                                         *
       Defendants/Appellees.             *

                                  ___________

                            Submitted: February 11, 2009
                               Filed: November 10, 2009
                                ___________

Before RILEY, SMITH, and SHEPHERD, Circuit Judges.
                             ___________
RILEY, Circuit Judge.

       Eight condemned Missouri prisoners1 appeal the dismissal of their 42 U.S.C.
§ 1983 action challenging the manner in which Missouri’s written lethal injection
protocol might be implemented in future executions. The prisoners allege the State
of Missouri, through its officers Larry Crawford, James Purkett, and Terry Moore
(collectively, Missouri), has a “well-documented history of employing incompetent
and unqualified personnel to oversee [the] crucial element[s] of executions by lethal
injection,” and “refusing properly to train the individuals to whom responsibility for
crucial tasks in the lethal injection process is delegated.” Based on this history, the
prisoners argue Missouri “will continue to employ such incompetent and unfit
personnel for future executions.” The prisoners contend this possibility violates the
Eighth Amendment by creating a substantial risk that Missouri’s written execution
protocol will not be followed, resulting in the condemned prisoners being
insufficiently anesthetized and suffering extreme pain before their deaths.

       The district court2 initially denied Missouri’s motion for judgment on the
pleadings, but later reconsidered sua sponte and granted the motion. In the same
order, the district court denied the motions to intervene of three other condemned
Missouri prisoners.3 The intervenors appeal this ruling. We affirm the district court’s
grant of judgment on the pleadings and its denial of the motions to intervene.



      1
      These eight prisoners, Reginald Clemons, Richard D. Clay, Jeffrey R.
Ferguson, Roderick Nunley, Michael Anthony Taylor, Martin Link, Mark Christeson,
and William L. Rousan, will be collectively referred to as the “prisoners.”
      2
        The Honorable Fernando J. Gaitan, Chief Judge, United States District Court
for the Western District of Missouri.
      3
       These three prisoners, John Charles Middleton, Russell Earl Bucklew, and Earl
Ringo, Jr., will be collectively referred to as the “intervenors.”

                                         -2-
I.    BACKGROUND
      A.     Missouri’s Execution Procedure Before the Written Protocol
      Before establishing a written execution protocol, Missouri used an unwritten
execution procedure which called for the successive administration of three chemicals
through an intravenous line (IV) placed in the femoral vein. See Taylor v. Crawford,
487 F.3d 1072, 1074 (8th Cir. 2007), cert. denied, 128 S. Ct. 2047 (2008). First, 5
grams of sodium pentothal (also known as thiopental) rendered the prisoner
unconscious, then 60 milligrams of pancuronium bromide paralyzed the prisoner’s
muscles, and finally, a 240-milliequivalent injection of potassium chloride stopped the
prisoner’s heart. Id.

       Discovery in the Taylor litigation4 revealed Missouri employed a physician,
John Doe I (Dr. Doe), to mix the lethal chemicals and insert the IV lines. Id. at 1075.
Under Missouri’s unwritten procedure, Dr. Doe believed he had “independent
authority to alter the chemical doses at will based on his medical judgment, and that
in fact, there were occasions when he chose to give a dose of only 2.5 grams of
thiopental without notifying the director.”5 Id. “Dr. Doe [] revealed that he has
dyslexia, which causes him to transpose letters and numbers,” id., and Dr. Doe also
“admitted he did not keep accurate chemical logs” documenting the amount of each
chemical given at an execution, id. at 1076. Dr. Doe monitored the prisoner’s
anesthetic depth solely by observing the prisoner’s facial expression through a
window which was partially obstructed by blinds. Id. at 1075. The prisoners’
complaint in the instant case asserts Missouri knew Dr. Doe had “medical licensure


      4
       The full history of the Taylor litigation is recounted in Taylor, 487 F.3d 1072,
Taylor v. Crawford, 445 F.3d 1095, 1096-98 (8th Cir. 2006), and Taylor v. Crawford,
457 F.3d 902, 904 (8th Cir. 2006).
      5
       A dose of 2.5 grams of thiopental would be sufficient to induce a state of deep
anesthesia, and, “in fact, rapid induction of anesthesia for surgery is generally
achieved in the average adult with a 0.28-gram dose.” Taylor, 487 F.3d at 1076.

                                         -3-
problems and problematic malpractice history.”6 The prisoners also assert a licensed
vocational nurse, John Doe II (Nurse Doe),“was unable to tell, despite personal
observation, that [Dr. Doe] consistently prepared the wrong dose of thiopental.”

      During the Taylor litigation, the district court determined Missouri’s unwritten
method of execution subjected condemned prisoners to an unconstitutional risk of
pain and suffering, and ordered the State to prepare a written protocol incorporating
various provisions. See Taylor v. Crawford, No. 05-4173-CV-C-FJG, 2006 WL
1779035, *8 (W.D. Mo. June 26, 2006). Missouri established a written execution
protocol and, after further litigation, this court upheld the constitutionality of
Missouri’s written protocol. See Taylor, 487 F.3d at 1085.

       B.     Missouri’s Written Lethal Injection Protocol
       Missouri’s written execution protocol requires the successive administration of
the same three chemicals used under the unwritten protocol. First, a set of four
syringes containing a total of 5 grams of thiopental in a 200 cc solution renders the
prisoner unconscious, and is followed by a saline flush. Medical personnel then
“physically examine the prisoner to confirm that he is unconscious,” using “standard
clinical techniques to assess consciousness, such as checking for movement, opened
eyes, eyelash reflex, pupillary responses or diameters, and response to verbal
commands and physical stimuli.” Medical personnel then inspect the IV site. A
second set of syringes containing an additional 5 grams of thiopental will be
administered through a secondary IV line in the unlikely event the prisoner is still
conscious after receiving the initial 5 grams. After confirming the prisoner is
unconscious, 60 milligrams of pancuronium bromide in a 60 cc solution is injected,
rendering the prisoner unable to move. The prisoner is then injected with another

      6
       Despite Dr. Doe’s shortcomings, we observed “there was not a scintilla of
evidence that any prisoner ever suffered any pain other than what was necessary to
acquire access to the prisoner’s circulatory system through the insertion of the needed
intravenous lines.” Taylor, 487 F.3d at 1075.

                                         -4-
saline flush. Finally, 240 milliequivalents of potassium chloride is injected to stop the
prisoner’s heart. After another saline flush, medical personnel monitor the electrical
activity of the prisoner’s heart, pronouncing death when an electrocardiogram shows
all electrical activity of the prisoner’s heart has ceased. If the prisoner’s heart does not
stop within five minutes, additional potassium chloride is injected. The proper
administration of thiopental ensures the condemned prisoner will not experience any
pain caused by the “potassium chloride, which indisputably will cause an excruciating
burning sensation as it travels through [the condemned prisoner’s] veins to induce a
heart attack.” Taylor, 487 F.3d at 1074.

       The execution team includes medical personnel and non-medical personnel.
Under the protocol, a physician, nurse, or pharmacist prepares the chemicals used at
the execution. Medical personnel may not change the quantities of these chemicals
without prior approval from the department director. The fifteen syringes are
distinctively labeled. “Medical personnel determine the most appropriate locations
for [IV] lines,” and “may insert the primary IV line as a peripheral line or as a central
venous line . . . provided they have appropriate training, education, and experience for
that procedure.” A physician, nurse, or emergency medical technician (EMT) is
responsible for inserting the IV lines, inspecting the IV site, attaching the leads from
the electrocardiograph to the prisoner’s chest, assessing the prisoner’s consciousness,
monitoring the prisoner, and supervising the injection of the lethal chemicals by non-
medical members of the execution team. After the execution, medical personnel are
required to sign a “Chemical Log,” indicating the quantities of the chemicals used and
the quantities discarded during the execution. Missouri’s protocol also requires all
members of the execution team to sign a form verifying the chemicals were given in
the order specified by the protocol. Dr. Doe is no longer a member of Missouri’s
execution team. Taylor, 487 F.3d at 1077 n.3.




                                            -5-
II.    DISCUSSION
       A.    Standard of Review
       We review de novo a district court’s grant of judgment on the pleadings,
“view[ing] all facts pleaded by the nonmoving party as true and grant[ing] all
reasonable inferences in favor of that party.” Poehl v. Countrywide Home Loans,
Inc., 528 F.3d 1093, 1096 (8th Cir. 2008) (citations omitted). “A grant of judgment
on the pleadings is appropriate ‘where no material issue of fact remains to be resolved
and the movant is entitled to judgment as a matter of law.’” Id. (quoting Faibisch v.
Univ. of Minn., 304 F.3d 797, 803 (8th Cir. 2002)).

        We review the grant of judgment on the pleadings under “the same standard
used to address a motion to dismiss for failure to state a claim under [Fed. R. Civ. P.]
12(b)(6).” Ashley County, Ark. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009)
(citation omitted). “[W]ell-pleaded facts, not legal theories or conclusions, determine
[the] adequacy of [t]he complaint.” Mattes v. ABC Plastics, Inc., 323 F.3d 695, 698
(8th Cir. 2003) (citing Parkhill v. Minn. Mut. Life Ins. Co., 286 F.3d 1051, 1057-58
(8th Cir. 2002)). The facts alleged in the complaint “‘must be enough to raise a right
to relief above the speculative level.’” Drobnak v. Andersen Corp., 561 F.3d 778, 783
(8th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

       B.     Eighth Amendment
       The prisoners argue Missouri’s current execution protocol violates the Eighth
Amendment because of the substantial risk the protocol may be improperly
administered by incompetent or unqualified medical personnel. According to the
prisoners’ allegations, Missouri’s past employment of Dr. Doe and Nurse Doe creates
“a grave risk that [the prisoners] will experience unconstitutional pain and suffering”
during their future executions, in violation of their Eighth and Fourteenth Amendment
rights. Put another way, the prisoners argue Missouri will hire “incompetent and unfit
personnel” in the future because it has allegedly done so in the past. The prisoners
assert, although Missouri’s written protocol is constitutional on its face, the written

                                          -6-
protocol “will have little effect when ignored or bungled by incompetent or unfit
personnel.” Because we have already held Missouri’s execution protocol is
constitutional as written, our opinion now confines itself to the question of whether
Missouri’s protocol violates the Eighth Amendment because of a possibility
incompetent or unqualified personnel will improperly prepare or administer the lethal
chemicals required by Missouri’s protocol.

       “The Eighth Amendment to the Constitution, applicable to the States through
the Due Process Clause of the Fourteenth Amendment, provides that ‘[e]xcessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.’” Baze v. Rees, 553 U.S. __, 128 S. Ct. 1520, 1529 (2008) (internal citation
omitted). Because capital punishment is constitutional, “[i]t necessarily follows that
there must be a means of carrying it out.” Id. “[T]he constitution does not demand
the avoidance of all risk of pain in carrying out executions.” Id. Instead, to establish
an Eighth Amendment violation, “the conditions presenting the risk must be ‘sure or
very likely to cause serious illness and needless suffering,’ and give rise to
‘sufficiently imminent dangers.’” Id. at 1530-31 (quoting Helling v. McKinney, 509
U.S. 25, 33, 34 (1993)). “[T]o prevail on such a claim there must be a ‘substantial risk
of serious harm,’ an ‘objectively intolerable risk of harm’ that prevents prison officials
from pleading that they were ‘subjectively blameless for purposes of the Eighth
Amendment.’” Id. at 1531 (quoting Farmer v. Brennan, 511 U.S. 825, 842, and 846
n.9 (1994)). The mere fact “an execution method may result in pain, either by
accident or as an inescapable consequence of death,” does not amount to an Eighth
Amendment violation. Id.

      In Baze, the Supreme Court addressed the constitutionality of Kentucky’s
written lethal injection protocol. Id. at 1525-26. Like Missouri’s protocol,
Kentucky’s protocol involves the successive administration of thiopental,
pancuronium bromide, and potassium chloride. Id. at 1528. Kentucky’s “protocol
reserves responsibility for inserting the IV catheters to qualified personnel having at

                                           -7-
least one year of professional experience.” Id. Non-medical “personnel are
responsible for mixing the solutions containing the three drugs and loading them into
syringes.” Id. The warden and deputy warden are responsible for visually inspecting
the prisoner for signs of consciousness and watching for problems with the IV
catheters and tubing. Id.

       Like the prisoners in this case, the Baze petitioners contended there was “a
significant risk that the [lethal injection] procedures [would] not be properly
followed—in particular, that the sodium thiopental [would] not be properly
administered to achieve its intended effect—resulting in severe pain when the other
chemicals are administered.” Id. at 1530. With respect to the risk the thiopental
would be improperly prepared, the Baze petitioners contended (1) “the doses are
difficult to mix into solution form and load into syringes,” and (2) “Kentucky employs
untrained personnel who are unqualified to calculate and mix an adequate dose[.]” Id.
at 1533. The Supreme Court saw no substantial risk of serious harm in allowing non-
medical personnel to mix the thiopental, recognizing the state trial court’s finding that
mixing thiopental is a simple process involving injecting a liquid into a vial of powder
and shaking it up until the powder dissolves. See id.

      The Baze petitioners also made similar arguments regarding the risk the
thiopental would be improperly administered. The Baze petitioners argued it was
“possible that the IV catheters [would] infiltrate into surrounding tissue, causing an
inadequate dose to be delivered to the vein,” and “Kentucky has no reliable means of
monitoring the anesthetic depth of the prisoner after the sodium thiopental has been
administered.” Id. The Court rejected these arguments, declaring, “the asserted
problems related to the IV lines do not establish a sufficiently substantial risk of harm
to meet the requirements of the Eighth Amendment.” Id.

     The Court determined there was no substantial risk of serious harm because
Kentucky’s protocol incorporated various important safeguards to protect against

                                          -8-
improper administration of thiopental, “[t]he most significant [safeguard being] the
written protocol’s requirement that members of the IV team must have at least one
year of professional experience as a certified medical assistant, phlebotomist, EMT,
paramedic, or military corpsman.” Id. The Court also observed Kentucky’s protocol
required preparation of two sets of lethal injection drugs, and “call[ed] for the IV team
to establish both primary and backup lines.” Id. at 1534. The Court reasoned, “These
redundant measures ensure that if an insufficient dose of sodium thiopental is initially
administered through the primary line, an additional dose can be given through the
backup line before the last two drugs are injected.” Id. Finally, the Court recognized
the additional safeguard of “the warden and deputy warden in the execution chamber
. . . watch[ing] for signs of IV problems, including infiltration,” which “would be very
obvious even to the average person, because of the swelling that would result.” Id.
(internal quotation marks omitted). The Court held, “[t]he risks of maladministration
[petitioners] have suggested—such as improper mixing of chemicals and improper
setting of IVs by trained and experienced personnel— cannot remotely be
characterized as ‘objectively intolerable.’” Id. at 1537. Addressing future challenges
to other states’ protocols, the Court declared, “[a] State with a lethal injection protocol
substantially similar to [Kentucky’s] . . . would not create” a substantial risk of severe
pain rising to the level of an Eighth Amendment violation. Id.

        The Missouri protocol’s safeguards against the risk of maladministration are
similar to, and in many ways more stringent than, Kentucky’s. Missouri’s protocol
requires a physician, nurse, or pharmacist (rather than a layperson) to prepare the
thiopental. Missouri also requires medical personnel (rather than the warden or
deputy warden) to watch for signs of IV problems, and to enter the execution chamber
to check for signs of consciousness and examine the IV site. A physician, nurse, or
EMT with appropriate training, education, and experience sets the IVs. A backup IV
is set, and an additional 5 grams of thiopental is prepared in the unlikely event the
prisoner is still conscious after receiving the first 5-gram dose. Medical personnel
have no discretion to vary the amount of chemicals given without prior approval from

                                           -9-
the director. As we recognized in Taylor, the various safeguards in Missouri’s
protocol, coupled with the lack of discretion allowed, minimize any risk that the
chemicals will be improperly prepared or administered. See Taylor, 487 F.3d at 1084.

        The prisoners contend their allegations are different from the allegations in
Baze, because Baze addressed only the risk that competent medical personnel might
improperly prepare or administer the lethal chemicals. The prisoners in this case
emphasize that their allegations state a claim for violation of the Eighth Amendment
because they have alleged previous improper preparation and administration of the
lethal chemicals by incompetent medical personnel.7 The Missouri prisoners here, just
as the Kentucky petitioners in Baze, “acknowledge that the lethal injection procedure,
if applied as intended, will result in a humane death,” but “nevertheless contend that
the lethal injection protocol is unconstitutional . . ., because of the risk that the
protocol’s terms might not be properly followed . . . .” Baze, 128 S. Ct. at 1526. We
reject the prisoners’ attempt to distinguish their case from Baze on the basis of alleged
past incompetence on the part of Missouri’s medical personnel.

       In Taylor, we declared, “[a]bsent some specific disqualifying characteristic of
the chosen medical personnel, we would be hard pressed to say that a physician,
trained nurse, or a licensed pharmacist is not qualified to mix the chemicals.” Taylor,
487 F.3d at 1084. The prisoners’ complaint sets forth no such disqualifying
characteristic.8 Further, although the prisoners’ complaint repeatedly uses conclusory


      7
        Because the prisoners do not define the terms “competent” or “incompetent,”
we give the words their dictionary definitions. “Competent” is defined as “having
suitable or sufficient skill, knowledge, experience, etc., for some purpose; properly
qualified.” Random House Webster’s Unabridged Dictionary 417 (2d ed. 1997).
“Incompetent” is defined as “not competent; lacking qualification or ability;
incapable.” Id. at 967.
      8
       In their brief, the prisoners allege discovery revealed a member of the
execution team, possibly Nurse Doe, has a 1998 misdemeanor criminal conviction for

                                          -10-
terms such as “incompetent,” “unfit,” “untrained,” and “unqualified,” the prisoners set
forth absolutely no factual allegations suggesting incompetence, lack of necessary
qualifications, or inadequate training on the part of any current or prospective member
of Missouri’s execution team. The prisoners’ complaint makes no factual allegations
suggesting any current or prospective member of Missouri’s execution team would
intentionally or unintentionally deviate from or ignore the written protocol. Nothing
in the prisoners’ complaint even remotely suggests any action or inaction by any
member of Missouri’s execution team poses a substantial risk of serious harm.

       Instead, the prisoners’ allegations stem entirely from Missouri’s previous
employment of Dr. Doe and, to a much lesser extent, Nurse Doe. Dr. Doe operated
under an unwritten procedure, which Dr. Doe believed conferred upon him
“independent authority to alter the chemical doses at will based on his medical
judgment.” Id. at 1075. It is undisputed that former unwritten protocol is no longer
in effect and Dr. Doe no longer participates in executions in Missouri. Even accepting
the prisoners’ assertion Dr. Doe can be characterized as “incompetent” and
“unqualified,” Dr. Doe’s past “incompetence” and lack of qualifications, while
operating under the former unwritten protocol, does not support an inference any


aggravated stalking. The basis for the prisoners’ contention is a newspaper article
reporting a nurse on the execution team pleaded no contest to misdemeanor counts of
stalking and tampering with property, arising from charges the nurse vandalized
property and threatened a man who was having an affair with the nurse’s estranged
wife. The article also describes the nurse as having an “unblemished” nursing license.
Because the prisoners’ complaint does not include these allegations, we do not
consider them on appeal. However, even if the prisoners had amended their complaint
to include these allegations, we fail to see the relationship between the nurse’s
misdemeanor conviction and the nurse’s competence to mix chemicals, check a
prisoner for signs of consciousness, insert an IV, or monitor an IV site. See Harbison
v. Little, 571 F.3d 531, 537 (6th Cir. 2009) (rejecting the district court’s determination
that a Tennessee execution team member’s “history of drug and alcohol addiction and
psychological disorders . . . raised questions about the screening process for members
of the execution team”).

                                          -11-
member of Missouri’s current execution team is “incompetent” or “unqualified.” The
mere allegation Missouri employed an “incompetent” and “unqualified” individual in
the past simply does not support the prisoners’ allegations Missouri will employ
“incompetent” and “unqualified” personnel in the future.

      Missouri’s new protocol specifically requires a physician, nurse, or pharmacist
to prepare the chemicals used at the execution, and requires a physician, nurse, or
EMT to carry out the remaining medical aspects of the execution and supervise the
non-medical members of the execution team. In Taylor, we emphasized “it is
imperative for the State to employ personnel who are properly trained to competently
carry out each medical step of the procedure.” Taylor, 487 F.3d at 1084. In the
absence of contrary supporting factual allegations, we will not assume or infer
Missouri intends to disregard its own protocol, and this court’s instructions, by
employing medical personnel who are “incompetent” or “unqualified” to perform their
assigned duties. The prisoners have not alleged a sufficiently substantial risk of
serious harm or a sufficiently imminent danger to support an Eighth Amendment
claim. We therefore conclude the district court did not err by determining, as a matter
of law, the prisoners failed to state a claim for violation of the Eighth Amendment.

      C.      Discovery
      The prisoners argue the district court erroneously determined Baze limits the
scope of discovery to which condemned prisoners are entitled, and precludes any
consideration of the backgrounds or characteristics of individual members of
Missouri’s execution team as a matter of law. This is a misreading of the district
court’s order. The district court did not find that, under Baze, no facts could ever exist
to warrant discovery into the background of a specific member of Missouri’s
execution team, or that consideration of a specific team member’s background or
characteristics is precluded in every case as a matter of law, nor do we read Baze so
broadly. The district court simply determined judgment on the pleadings was
appropriate in this case, and therefore the prisoners were not entitled to further

                                          -12-
discovery. Because we affirm the district court’s grant of judgment on the pleadings,
we need not address the specific discovery rulings the district court made before
granting judgment on the pleadings. See Casazza v. Kiser, 313 F.3d 414, 420 (8th Cir.
2002) (recognizing an appellate court need not reach discovery issues when affirming
a district court’s grant of a motion to dismiss).

       The prisoners protest that, because the identities of the execution team members
are kept secret, the prisoners are unable to uncover facts relating to the backgrounds
and characteristics of individual execution personnel without first engaging in
discovery. In their complaint, the prisoners assert they “are entitled by due process
of law to receive information regarding the qualifications, training[,] and fitness of
execution team members,” and Missouri’s “refusal to provide Plaintiffs with sufficient
information bearing on the training and qualifications of the personnel . . . constitutes
a violation of Plaintiffs’ rights to due process of law.” At oral argument the prisoners
expressly abandoned this due process claim on appeal. Therefore, we need not decide
whether the prisoners have a due process right to discover information relating to their
executioners’ backgrounds and qualifications.9

       D.      Motions to Intervene
       The intervenors contend the district court erroneously denied their motions to
intervene because (1) they are entitled to intervene in the action as of right, and (2)
alternatively, they meet the requirements for permissive intervention. Because the
district court properly granted judgment on the pleadings, we need not decide whether
the intervenors should have been allowed to intervene if the underlying case had
survived judgment on the pleadings. The district court did not err by denying the
prisoners’ motions to intervene because there is no longer an underlying case in which


      9
       However, we have located no authority indicating the prisoners have such a
due process right to probe into the backgrounds of execution personnel.


                                          -13-
to intervene. See Webster Groves Sch. Dist. v. Pulitzer Publ’g. Co., 898 F.2d 1371,
1377 (8th Cir. 1990) (finding no abuse of discretion in the district court’s denial of a
motion for permissive intervention where “the [plaintiff] already had taken a voluntary
dismissal of its suit, and there remained no case in which to intervene”); see also
Shempert v. Harwick Chem. Corp., 151 F.3d 793, 799 (8th Cir. 1998) (concluding the
district court’s denial of a motion to intervene was proper where the main action was
dismissed).

III.   CONCLUSION
       We affirm the district court’s grant of judgment on the pleadings and its denial
of the motions to intervene.
                        ______________________________




                                         -14-
