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Media Alerts - Zink v. Lombardi - Eighth Circuit
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April 10, 2015
  Zink v. Lombardi - Eighth Circuit
Headline Eighth Circuit affirms dismissal of prisoner lawsuit challenging the lethal-injection protocol of the Missouri Department of Corrections

Area of Law Eighth Amendment

Issue(s) Presented Whether the district court properly dismissed an action for declaratory judgment and injunctive relief alleging that Missouri's lethal-injection protocol violates the U.S. Constitution, the Missouri Constitution, and various federal and state laws.

Brief Summary In 2012, Missouri changed its lethal-injection protocol from administration of three drugs to only one, propofol. In response to the protocol change, a group of prisoners filed suit challenging the new single drug protocol. In 2013, while the lawsuit was pending, Missouri altered it protocol yet again, replacing propofol with pentobarbital. Plaintiffs subsequently amended their complaint to allege 10 separate claims challenging the legality of the revised protocol. Missouri moved to dismiss all of the claims. The district court granted the motion, dismissing the amended complaint in its entirety. Plaintiffs appealed the ruling with respect to seven of the claims.

On appeal, the prisoner appellants primarily argued that Missouri's lethal-injection protocol violates the right to be free from cruel and unusual punishment contained in the Eighth Amendment of the U.S. Constitution. The Eighth Circuit, sitting en banc, held that appellants had not adequately pled that the protocol violates the cruel and unusual punishment prohibition. There are two essential elements of a claim challenging a state's method of execution. First, the complaint must adequately allege that the protocol creates a substantial risk of severe pain. Second, the complaint must allege that a feasible alternative method of execution exists that would substantially reduce the risk of harm.

In this case, the Eighth Circuit held that the complaint did not adequately allege facts sufficient to show that Missouri's protocol creates a substantial risk of severe pain. The facts alleged were limited to hypothetical situations and speculation, and did not rise to the level of showing that the challenged protocol was "sure or very likely to cause . . . needless suffering." Moreover, the Eighth Circuit also held that the complaint did not adequately plead the second element of a cruel and unusual punishment claim - the existence of an alternative method of execution. The complaint merely conceded that other methods of lethal injection would be constitutional. The Eighth Circuit found that this concession alone with no additional factual support was not sufficient to state a claim under the Eighth Amendment.

The Eighth Circuit also rejected appellants' additional claims that Missouri's lethal-injection protocol violates other Eighth Amendment rights, deprives them of due process and equal protection, violates their First Amendment rights, and breaks a number of other federal laws. Notable among these additional holdings was the Eighth Circuit's ruling that the First Amendment does not grant a prisoner a right "to know where, how, and by whom the lethal injection drugs will be manufactured." The Court held that appellants failed to state a claim of qualified right of public access to such information, because they could not plausibly allege a history of openness to the general public.

The full text of the opinion may be found at Text

Panel En Banc

Date of Issued Opinion March 6, 2015

Decided Affirmed

Docket Number 14-2220

Counsel Joseph Luby for Appellants and Shaun Mackelprang for Appellees

Author Per Curiam

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 04/10/2015 03:31 PM     8th Circuit  

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