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Johnson v. Lombardi

United States District Court, W.D. Missouri, Central Division

September 30, 2016

GEORGE A. LOMBARDI, et al., Defendants.



         A 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.

         Now 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 without prejudice.


         Less 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.

         Taking 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).

         A jury 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.

         Meanwhile, 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 time.

         For a 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.[1] 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.

         Johnson's 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 triggers seizures.

         Johnson 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.

         Johnson 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.

         The 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 ...

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