                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-2222
                         ___________________________

                                  Ernest Lee Johnson,

                         lllllllllllllllllllllPlaintiff - Appellant,

                                             v.

                 Anne L. Precythe; Alana Boyles; Stanley Payne,*

                       lllllllllllllllllllllDefendants - Appellees.
                                        ____________

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

                              Submitted: May 16, 2018
                               Filed: August 27, 2018
                                   ____________

Before SMITH, Chief Judge, BEAM and COLLOTON, Circuit Judges.
                              ____________

COLLOTON, Circuit Judge.

       Ernest Johnson, a prisoner sentenced to death in Missouri, appeals the dismissal
of his action challenging the constitutionality of the State’s method of execution as
applied to him. The district court dismissed Johnson’s second amended complaint for

      *
      Appellees Precythe, Boyles, and Payne are automatically substituted for their
predecessors under Federal Rule of Appellate Procedure 43(c)(2).
failure to state a claim. We conclude that Johnson pleaded a plausible claim for relief
under the Eighth Amendment, so we reverse and remand for further proceedings.

                                           I.

       Johnson was convicted of three counts of first-degree murder in Missouri state
court and sentenced to death. See State v. Johnson, 244 S.W.3d 144, 149 (Mo. 2008).
He filed this action against Missouri officials in October 2015, approximately two
weeks before a scheduled execution on November 3, 2015. Johnson alleged that the
State’s method of execution—lethal injection with pentobarbital—violates the Eighth
Amendment’s proscription on cruel and unusual punishment, because there is “a
substantial and unjustifiable risk” that a pentobarbital injection will “trigger severe
and uncontrollable seizures and convulsions due to his brain defect and unique
medical condition.”

       The district court granted the State’s motion to dismiss the complaint for failure
to state a claim. See Fed. R. Civ. P. 12(b)(6). Applying the Eighth Amendment
standard from Glossip v. Gross, 135 S. Ct. 2726, 2737 (2015), the court concluded
that Johnson had not identified a feasible, readily implementable alternative method
of execution that would significantly reduce a substantial risk of severe pain. The
court dismissed the complaint without prejudice, stating that Johnson was free to
amend his complaint to remedy its deficiencies. Due to Johnson’s imminent execution
date, however, the court stated that it was certifying the dismissal order for
interlocutory appeal under Federal Rule of Civil Procedure 54(b).

      Johnson moved this court to stay his execution pending appeal. This court
denied a stay after concluding that Johnson failed to demonstrate a significant
possibility of success on either element of his Eighth Amendment claim. Johnson v.
Lombardi, 809 F.3d 388 (8th Cir. 2015) (per curiam). The Supreme Court, however,
granted a stay pending appeal in the Eighth Circuit. Johnson v. Lombardi, 136 S. Ct.

                                          -2-
443 (2015) (per curiam). The Court observed that a supporting affidavit by a medical
expert stated that “[a]s a result of Mr. Johnson’s brain tumor, brain defect, and brain
scar, a substantial risk of serious harm will occur during his execution as a result of
a violent seizure that may be induced by [the] Pentobarbital injection.” Id. at 443
(alterations in original).

       As we observed in Bucklew v. Lombardi, 783 F.3d 1120 (8th Cir. 2015) (en
banc), “[t]he Court’s decision to grant a stay pending appeal reflected its
determination that [the movant] had shown ‘a significant possibility of success on the
merits’ of his appeal from the district court’s dismissal of his complaint.” Id. at 1123-
24 (quoting Hill v. McDonough, 547 U.S. 573, 584 (2006)). In this case, however, we
subsequently dismissed Johnson’s appeal for lack of jurisdiction, and did not consider
the merits of his complaint at that time. Johnson v. Lombardi, 815 F.3d 451 (8th Cir.
2016). We noted that the State had not established a new execution date, and that
Johnson was thus “free to move for leave to amend his complaint without the pressure
of a scheduled execution.” Id. at 452.

       Back in the district court, Johnson amended his complaint, but the court again
dismissed it without prejudice. This time, the court reasoned that Johnson’s complaint
failed to plead facts that established the likelihood that pentobarbital would cause him
to have a mid-execution seizure. The court allowed that it would give Johnson one
more opportunity to file an adequately pleaded complaint.

       Johnson then filed a second amended complaint. As an exhibit, Johnson
attached an affidavit from anesthesiologist Dr. Joel Zivot, who opined about the
likelihood that Johnson would suffer a painful seizure if executed by means of
pentobarbital. Johnson also attached an Oklahoma study concluding that nitrogen-
induced hypoxia, an alternative to lethal injection, would be a humane method of
execution.



                                          -3-
       The district court granted the State’s motion to dismiss the latest complaint.
The court reasoned that Johnson failed to plead adequately two elements of an Eighth
Amendment claim—namely, that pentobarbital was sure or very likely to cause him
to suffer severe pain, and that nitrogen-induced hypoxia was a feasible and readily
implemented alternative method of execution that would significantly reduce that risk.
Johnson appeals, and we review the district court’s decision de novo. Zink v.
Lombardi, 783 F.3d 1089, 1098 (8th Cir. 2015) (en banc) (per curiam).

                                            II.

       To survive a motion to dismiss, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A claim is plausible on its face where “the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged,” id., and “raise[s] a right to relief above
the speculative level.” Twombly, 550 U.S. at 555. A pleading must offer more than
“‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of
action’” to state a plausible claim for relief. Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 555).

        At the same time, however, the rules of procedure continue to allow notice
pleading through “a short and plain statement of the claim showing that the pleader
is entitled to relief.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting
Fed. R. Civ. P. 8(a)(2)). “Specific facts are not necessary; the statement need only
‘give the defendant fair notice of what the . . . claim is and the grounds upon which
it rests.’” Id. (alteration in original) (quoting Twombly, 550 U.S. at 555). We assume
in our analysis that the factual allegations in the complaint are true. Twombly, 550
U.S. at 556.



                                           -4-
       To prove a claim challenging a method of execution under the Eighth
Amendment, a prisoner must first “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 (quoting Baze v. Rees,
553 U.S. 35, 50 (2008) (plurality opinion)). The risk 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. (quoting Baze, 553 U.S. at 50). Second, the prisoner must
“identify an alternative that is ‘feasible, readily implemented, and in fact significantly
reduce[s] a substantial risk of severe pain.’” Id. (alteration in original) (quoting Baze,
553 U.S. at 52). A plaintiff cannot satisfy this element “merely by showing a slightly
or marginally safer alternative.” Id. (quoting Baze, 553 U.S. at 51).

       On the first element, Johnson alleged that he was diagnosed with an “atypical
parasagittal meningioma brain tumor.” A portion of the tumor was removed during
a craniotomy procedure in August 2008, but another part remains in Johnson’s brain.
The surgery also resulted in “scarring tissue” in Johnson’s brain and a “significant
brain defect.” Johnson pleaded that “[t]he brain defect and the scarring tissue that
resulted from the craniotomy procedure were not known until an MRI procedure was
conducted in April 2011.” As a result of his “brain defect, scarring, and tumor,”
Johnson allegedly has a seizure disorder and has suffered seizures.

       After detailing Missouri’s lethal injection protocol, Johnson asserted that “there
is a substantial and unjustifiable risk that the lethal injection drugs will trigger violent
and uncontrollable seizures that are extremely painful and will lead to an ineffective
and excruciating execution.” Relying on the attached affidavit of Dr. Zivot, the
complaint asserts that “a substantial risk of serious harm will occur during his
execution as a result of a violent seizure that is induced by pentobarbital.”




                                            -5-
       Dr. Zivot’s supporting affidavit states as follows: “As a result of Mr. Johnson’s
brain tumor, brain defect, and brain scar, a substantial risk of serious harm will occur
during his execution as a result of a violent seizure that is induced by Pentobarbital
injection. Generalized seizures, such as the one that would occur in Mr. Johnson, are
severely painful.” This is essentially the same allegation that the Supreme Court cited
in support of its decision in 2015 to stay Johnson’s execution pending appeal. 136 S.
Ct. at 443. The affidavit also explains that Methohexital, “a Barbiturate and close
cousin of Pentobarbital,” is known to induce seizures in persons without pre-existing
seizure disorders, and avers that the introduction of barbiturates into the body of a
person with a pre-existing seizure disorder is more likely to produce seizures.

       We think these allegations are sufficient to meet the first element of an Eighth
Amendment claim at the pleading stage. Dr. Zivot, as a medical expert, predicts “a
violent seizure that is induced by Pentobarbital injection,” opines that a seizure
“would occur” during Johnson’s execution, and states that such seizures are “severely
painful.” To be sure, “the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.
But Johnson’s complaint and Zivot’s attached affidavit include factual allegations that
a seizure will occur when the State injects pentobarbital and that such a seizure causes
severe pain. These allegations are not legal conclusions but statements of fact, and
more detailed factual allegations are not required under Rule 12. Insofar as Zivot
reasoned by analogy from the effects of a “close cousin” in the barbiturate family, the
reliability of his conclusion is a matter to be resolved after the presentation of
evidence. For purposes of notice pleading, Johnson has included a plausible
allegation that the State’s method of execution will cause severe pain. See Glossip,
135 S. Ct. at 2737. Whether Johnson can prove the claim through Dr. Zivot’s
testimony or other evidence is a different matter to be addressed at a later stage of the
proceedings.




                                          -6-
       To prove the second element of an Eighth Amendment claim, Johnson must
show an alternative method of execution “that is ‘feasible, readily implemented, and
in fact significantly reduce[s] a substantial risk of severe pain.’” Id. (alteration in
original) (quoting Baze, 553 U.S. at 52). Johnson alleged that execution by lethal
gas—specifically, “nitrogen-induced hypoxia”—is such an alternative.

       Johnson pleaded at greater length as follows: (1) “execution by lethal gas is
already authorized by Missouri statute,” see Mo. Rev. Stat. § 546.720.1, (2) “the tools
necessary to perform nitrogen-induced hypoxia are easily acquired in the open
market,” (3) nitrogen gas “is readily available through multiple sources in the United
States” and “can be obtained without the need for a license,” (4) nitrogen gas can be
administered by “the use of a hood, a mask or some other type of medically enclosed
device to be placed over the mouth or head of the inmate,” and (5) “the use of a
nitrogen gas method of execution would not require a gas chamber or the construction
of [a] particular type of facility” and “could be administered in the same room or
facility now utilized by the Department of Corrections for lethal injection.” Johnson
further alleged that the use of lethal gas would “significantly reduce the substantial
and unjustifiable risk of severe pain” resulting from a pentobarbital injection, because
“the use of lethal gas would not trigger the uncontrollable seizures and convulsions.”
He attached to his complaint an Oklahoma study that found nitrogen-induced hypoxia
to be “a humane method to carry out a death sentence.”

        In the recent case of Bucklew v. Precythe, 883 F.3d 1087 (8th Cir.), cert.
granted, 138 S. Ct. 1706 (2018), the State did not dispute for purposes of that
litigation that nitrogen-induced hypoxia is a feasible and readily implemented
alternative method of execution. Id. at 1094; see Bucklew v. Lombardi, No. 14-8000-
CV-W-BP, slip op. at 9 (W.D. Mo. June 15, 2017). But in this case, the State does
contend that Johnson failed to plead that nitrogen-induced hypoxia is a readily
implemented method of execution. According to the State, Johnson’s complaint does
not include required factual information “that explains how Missouri could take

                                          -7-
nitrogen gas from a tank and administer it to an inmate in a way that produces a rapid
and painless death.” As summarized above, however, Johnson alleged that nitrogen
gas is readily available on the open market, could be introduced through a “medically
enclosed device to be placed over the mouth or head of the inmate,” and would not
require construction of a new facility. Under the notice pleading regime of the federal
rules, this is sufficient. Johnson need not set forth a detailed technical protocol for the
administration of nitrogen gas to state a claim.

       The district court concluded that the Oklahoma report attached to Johnson’s
complaint “actually indicates nitrogen induced hypoxia is not feasible or capable of
being readily implemented for use in state executions,” but we respectfully disagree.
The report does state that “[f]urther study will be necessary to determine the best
delivery system” for nitrogen gas. The report also raises the possibility that a gas
mask delivery system could be less efficient than a gas bag delivery system. But the
report’s ultimate conclusion is that execution by nitrogen-induced hypoxia would be
“simple to administer.” That researchers have yet to decide which is the best among
several feasible methods of implementation does not definitively refute Johnson’s
allegation that Missouri could feasibly implement this alternative without undue delay.

       The district court also thought it fatal to Johnson’s claim that he did not plead
facts “indicating Missouri is willing to perform this type of execution, which suggests
it may not be feasible.” We cannot accept, however, that a State’s unwillingness to
employ a method that would significantly reduce a substantial risk of severe pain
makes the method infeasible. Under the Glossip/Baze standard, a State may be
obliged under the Constitution to implement an alternative method of execution. See
Baze, 553 U.S. at 52. Whether Missouri is “willing” to implement an alternative
method voluntarily does not determine whether the alternative is feasible.

     The State also contends that Johnson did not adequately allege that nitrogen gas
would significantly reduce a substantial risk of severe pain. The State suggests that

                                           -8-
McGehee v. Hutchinson, 854 F.3d 488 (8th Cir. 2017) (en banc) (per curiam),
forecloses Johnson’s claim. McGehee, however, arose in a different procedural
posture. Several Arkansas prisoners sought a stay of execution after an evidentiary
proceeding on the ground that Arkansas’s method of execution on its face violated the
Eighth Amendment. Id. at 490-91. We concluded that the evidence was insufficient
to justify a stay, because nitrogen hypoxia had “never been used to carry out an
execution” and “[w]ith no track record of successful use,” it was “not likely to emerge
as more than a ‘slightly or marginally safer alternative’” to the State’s current method
in the ordinary case. Id. at 493 (quoting Glossip, 135 S. Ct. at 2737).

        Johnson is not bound by the pleadings or the evidentiary record in McGehee.
He has pleaded an as-applied claim based on his medical condition, not a facial
challenge to Missouri’s ordinary method. He claims that nitrogen hypoxia would
ameliorate the risk of severe pain allegedly caused by pentobarbital, because “the use
of lethal gas would not trigger the uncontrollable seizures and convulsions.” The
pleading is sufficient to state a claim that the alternative method would significantly
reduce a substantial risk of severe pain for Johnson in his particular circumstances.
Again, whether Johnson can prove that claim is a different matter that will arise at a
later stage of the proceedings.

                                           III.

       The State’s last argument for affirmance is that Johnson’s complaint is barred
by the statute of limitations. A statute of limitations is an affirmative defense that the
defendant must plead and prove. But “[a] defendant does not render a complaint
defective by pleading an affirmative defense,” so the defense ordinarily must be
apparent on the face of the complaint to justify dismissal for failure to state a claim.
Jessie v. Potter, 516 F.3d 709, 713 n.2 (8th Cir. 2008). The district court rejected the
State’s position on the ground that the face of Johnson’s complaint did not establish
that his claim was barred by the statute of limitations.

                                           -9-
       In a § 1983 action like this one, the governing statute of limitations “is that
which the State provides for personal-injury torts.” Wallace v. Kato, 549 U.S. 384,
387 (2007). In Missouri, the period is five years. Mo. Rev. Stat. § 516.120(4).
Although state law dictates the length of the limitations period, we look to federal
common law to determine when a cause of action under § 1983 accrues. Wallace, 549
U.S. at 388. The standard rule is that accrual occurs “when the plaintiff has a
complete and present cause of action, . . . that is, when the plaintiff can file suit and
obtain relief.” Id. (internal quotation marks omitted) (quoting Bay Area Laundry &
Dry Cleaning Pension Tr. Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997)).
“[A] plaintiff’s cause of action accrues when he discovers, or with due diligence
should have discovered, the injury that is the basis of the litigation.” Union Pac. R.R.
Co. v. Beckham, 138 F.3d 325, 330 (8th Cir. 1998); see also Cooey v. Strickland, 479
F.3d 412, 416 (6th Cir. 2007) (applying the common law “discovery rule” to
determine when a § 1983 method-of-execution cause of action accrued).

       Johnson claims that his unique medical condition puts him at a substantial risk
of suffering severe pain if he is executed by means of pentobarbital. Johnson’s cause
of action could not have accrued until he discovered, or with due diligence should
have discovered, that he suffers from the brain defects that make him vulnerable to
seizures. His second amended complaint alleges that “the brain defect and the
scarring tissue that resulted from the craniotomy procedure were not known until an
MRI procedure was conducted in April 2011.” The complaint was filed within five
years of April 2011, so it would be timely if that is the accrual date.

      The State argues that Johnson could have discovered his condition in 2008 after
he underwent brain surgery. The State posits that “[t]he presence of scar tissue after
a surgery is obvious and a natural and probable consequence of any surgery.” The
condition of which Johnson complains, however, is not only scar tissue. He alleges
a seizure disorder that is caused by a confluence of factors in his brain. Giving
Johnson all reasonable inferences at this stage in the litigation, it is not clear from

                                          -10-
Johnson’s pleadings that he could have discovered this condition through the exercise
of reasonable diligence before his MRI procedure in April 2011. Therefore, Johnson’s
complaint is not subject to dismissal under Rule 12(b)(6) based on the statute of
limitations.

                                  *      *       *

      For the foregoing reasons, we reverse the district court’s judgment dismissing
Johnson’s second amended complaint and remand for further proceedings.
                      ______________________________




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