United States District Court, W.D. Missouri, Central Division
ERNEST L. JOHNSON, Plaintiff,
GEORGE A. LOMBARDI, et al., Defendants.
ORDER GRANTING MOTION TO DISMISS
KAYS, CHIEF JUDGE.
Missouri state court convicted Plaintiff Ernest L. Johnson
(“Johnson”) of first-degree murder and sentenced
him to death. Johnson has exhausted all appeals challenging
his conviction, and the State of Missouri is now ready to
execute him. In this civil action, he challenges the
constitutionality of the State's proposed execution
protocol as it applies to him. He alleges that, in light of
his brain tumor and its resulting impairments, he will
experience violent, uncontrollable seizures if the State
executes him with the drug pentobarbital as intended.
before the Court is Defendants' motion to dismiss (Doc.
33). As explained below, Johnson fails to state a plausible
claim that the State's execution protocol is “sure
or very likely” to induce a seizure. However, his claim
is not barred by the statute of limitations. The motion is
therefore GRANTED and the amended complaint is DISMISSED
than two weeks before his execution date, Johnson commenced
this action against Defendants George A. Lombardi, David
Dormire, and Troy Steele, who are all employees of the
Missouri Department of Corrections. The Court denied a stay
of execution and dismissed the complaint for failing to state
a claim (Doc. 12). Johnson appealed and moved for a stay of
execution. Without considering whether the Court had properly
dismissed the complaint, the Court of Appeals denied the
stay. Johnson v. Lombardi, 809 F.3d 388 (8th Cir.
2015) (“Johnson I”). The Supreme Court
of the United States granted the stay and ordered the Court
of Appeals to consider the merits of Johnson's appeal.
Johnson v. Lombardi, 136 S.Ct. 443 (2015). Because
the propriety of dismissing the complaint was not yet
appealable, the Court of Appeals dismissed the appeal and
returned jurisdiction to this Court. Johnson v.
Lombardi, 815 F.3d 451, 452 (8th Cir. 2016). Johnson
filed an amended complaint to cure the deficiencies that gave
rise to the Court's dismissal.
the factual allegations in the amended complaint as true and
crediting Johnson with all reasonable inferences, the Court
views the relevant facts as follows. See Zink v.
Lombardi, 783 F.3d 1089, 1093 (8th Cir. 2015) (en banc).
found Johnson guilty of murdering three gas station employees
in 1994. Johnson v. State, 333 S.W.3d 459, 462 (Mo.
2011). Over the next seventeen years, Johnson's
post-conviction challenges wended their way through the state
courts. Id. Over that time, he was sentenced to
death three times.
in 2008, Johnson was diagnosed with a slow-growing brain
tumor called an atypical parasagittal meningioma. Johnson
underwent craniotomy surgery in August 2008, during which
doctors removed fifteen to twenty percent of his brain
tissue, but were unable to remove the entire tumor. Since the
surgery, Johnson started having violent, uncontrollable, and
painful seizures of indefinite length. He takes anti-seizure
medications, but they do not suppress the seizures every
few years after the surgery, Johnson knew only that part of
the tumor was still in his brain. An MRI scan in April 2011
showed that the surgery had scarred some of his brain tissue
and had left him with a brain defect. Doctors concluded that the
scarring tissue and brain defect, together with the tumor
remnants, were disrupting electrical activity in the area of
the brain responsible for the movement and sensation in his
legs. This is what was causing Johnson's seizures.
brain health is relevant because his condition will allegedly
expose him to constitutionally unacceptable pain if the State
of Missouri executes him as planned. The execution protocol
dictates that non-medical personnel inject him with up to ten
grams of pentobarbital, a barbiturate which depresses the
central nervous system. Medical personnel will monitor the
prisoner from an adjoining room, but no medical personnel
will be present during the injections. The execution protocol
is silent on what to do if ten grams is not enough to kill
him. Nor is there a plan for what to do if the pentobarbital
consulted a board-certified anesthesiologist, Joel Zivot,
M.D. (“Dr. Zivot”), who concluded this protocol
poses a “substantial and unjustifiable risk” of
causing Johnson to have seizures. Am. Compl. ¶¶ 2,
21, 22, 34, 54, 58, 59, 62 (Doc. 31); see also Id.
¶ 51 (labeling this a “significant and
unjustifiable risk”). Once it enters his bloodstream,
the pentobarbital will “interact” with his
scarring tissue, brain defect, and remaining meningioma,
thereby triggering seizures. Id. ¶ 21. These
seizures, in turn, will give Johnson muscle pain
alternatively described as “severe, ”
“extreme, ” and “excruciating.”
E.g., id. ¶¶ 21, 34, 35. This is
in part because pentobarbital, pharmacologically, makes pain
worse. The seizures will not be quick, and will prolong the
execution. Because the State of Missouri does not station
medical personnel inside the execution chamber, no one can do
anything for Johnson if he begins seizing or if the
pentobarbital fails to kill him.
suggests there is a feasible, readily implementable
alternative method of execution: the State could execute him
by nitrogen-induced hypoxia. Missouri law already permits
execution by lethal gas, Mo. Rev. Stat. § 546.720.1, and
nitrogen, which is used commonly in welding and cooking, is
easy to obtain. The State could acquire nitrogen, fit a hood
or mask over his head, and then administer enough nitrogen to
kill him painlessly.
sole count in Johnson's amended complaint charges that by
using pentobarbital instead of hypoxia to execute him,
Defendants will inflict cruel and unusual punishment, which
is prohibited by the Eighth Amendment as applied to the State
of Missouri by the Fourteenth Amendment and ...