Doc. 12 Bucklew Reply Re Motion to Stay as Filed

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI

CENTRAL DIVISION

RUSSELL BUCKLEW ) Plaintiff, ) ) v. ) No. 14-CV-8000-BP ) GEORGE LOMBARDI, et al., ) THIS IS A CAPITAL CASE Defendants. ) EXECUTION SCHEDULED FOR ) MAY 21, 2014

REPLY TO DEFENDANTS’ SUGGESTIONS IN OPPOSITION TO MR. BUCKLEW’S MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY

INJUNCTION, AND MR. BUCKLEW’S MOTION TO STAY EXECUTION

Defendants’ response is devoid of any medical facts or expert opinions that challenge the

opinion of Plaintiff’s expert, Dr. Joel Zivot. Mr. Bucklew’s evidence of the grave risks posed to

him by lethal injection is entirely uncontroverted. Instead of candidly acknowledging that,

Defendants make disingenuous, scattershot arguments in an effort to distract the court from the

real and serious issues presented.

After years of failing to provide adequate medical care and obtain up-to-date imaging,

and after repeatedly opposing the efforts of Mr. Bucklew’s counsel to obtain funding for a

qualified physician to examine Mr. Bucklew, Defendants now attempt – remarkably – to blame

Mr. Bucklew’s counsel for what they themselves should have done. Until Mr. Bucklew is

executed, assuming that happens, the State of Missouri has a constitutional obligation, rooted in

the Eighth Amendment, to provide adequate medical care. Mr. Bucklew’s head, neck and throat

are filled with unstable vascular tumors that have continued to grow throughout his life. They

have continued to encroach on his airway and now obstruct much of his airway. Given Mr.

Bucklew’s status as a death row prisoner and the likelihood that he would be executed, the State

Case 4:14-cv-08000-BP Document 12 Filed 05/16/14 Page 1 of 21

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had a constitutional obligation to monitor these vascular growths and to obtain appropriate

imaging studies – both to provide immediate care and to prepare for the eventuality of execution.

Rather than meeting that obligation, the State has turned a blind eye to its responsibilities

and has proceeded in haste and ignorance in an effort to execute Mr. Bucklew. As recently as

two weeks ago, the assistant Attorney General assigned to this case thought that merely

obtaining venous studies of Mr. Bucklew’s arms would be sufficient – even though Mr.

Bucklew’s vascular tumors are in his head. Then, counsel in the Attorney General’s office

belatedly indicated he was amenable to an MRI of Mr. Bucklew’s head, but thought it could be

done instantly, with no treating or referring physician to request the test or work with specialists.

Significantly, Mr. Bucklew’s airway is so obstructed that medical tests would not likely be

performed without first obtaining an assessment of Mr. Bucklew’s airway. Instead of

Defendants’ counsel fulfilling the State’s constitutional obligations, it was Mr. Bucklew’s

counsel who contacted neuroradiologists at the Washington University School of Medicine and

Barnes Jewish Hospital and attempted to get an MRI arranged. In response to counsel’s request,

Dr. Franz Wippold wrote a letter to this Court explaining the process for obtaining the necessary

imaging. (See Exhibit 1). Significantly, the letter mentions obtaining, prior to any imaging, a

consultation “in order to assess the need for airway management during those procedures.” Id.

The State has done nothing to move forward on Dr. Wippold’s recommendations, instead

preferring to rush ahead with the execution and make hasty, last-minute changes to the protocol

in a failed effort to resolve some of the problems.

In contrast to the State – with its constitutional obligation and unquestioned ability to pay

for medical testing – Mr. Bucklew’s counsel lack the resources for such medical consultation.

The reality is that Mr. Bucklew’s counsel have no funding – either for themselves or for medical


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experts. Counsel are representing Mr. Bucklew under their CJA appointments but with no CJA

funds. Undersigned counsel, Cheryl Pilate, was paid a total of $12,300 in 2012 for

approximately 5 years’ work by her and her firm. Her co-counsel received a larger amount, but

has also been denied any further funding. Since 2012, counsel have represented Mr. Bucklew for

no remuneration whatsoever. Indeed, counsel are presently working around the clock and are

paying all expenses out of their own pockets, including travel costs for themselves and Dr. Zivot

as well as the costs of obtaining medical records. Since 2008, Mr. Bucklew’s counsel have

requested funding for a medical expert no fewer than eight times – and were repeatedly denied

by both state and federal courts. When they litigated their request in Missouri state courts (as

discussed further below), the State actively opposed their request. Now that Defendants have

utterly failed in their obligation to provide appropriate medical care, including diagnostic care,

they are claiming – disingenuously – that it is Mr. Bucklew’s counsel who should have obtained

these facts and raised these issues.

At nearly the final hour, Defendants now belatedly acknowledge that “Russell Bucklew

appears to have serious medical issues.” (Doc. 8 at 1). Defendants’ tardy admission comes after

Mr. Bucklew has repeatedly asserted these issues but has been hobbled by inadequate or no

funding. The imminence of an execution date finally allowed counsel – through a referral – to

locate Dr. Zivot, who thus far has not been paid a penny. He agreed to work on this case in the

hope of ultimately obtaining court funding. Should Mr. Bucklew’s counsel fail in a final effort

to obtain funds, members of Mr. Bucklew’s family may be able to pay a small amount toward

Dr. Zivot’s fee. Aside from that, there is no funding, and Defendants’ counsel continue to

advocate and litigate without adequate resources against an Attorney General’s office that has


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the ability to assign four attorneys to this case and to obtain whatever medical consultation it

needs.

Defendants’ response to Mr. Bucklew’s motions is lacking in substance and devoid of

meaningful arguments or relevant authority. Instead, Defendants appear to be trying to sway the

Court with references to Mr. Bucklew’s offense – even though the offense itself is irrelevant to

the issues in this case and even though neuropsychological testing (presented at trial and in post-

conviction proceedings) revealed serious deficits in Mr. Bucklew’s brain functioning.

Defendants filed suggestions in opposition to Mr. Bucklew’s motion for temporary restraining

order and preliminary injunction (Docs. 2, 3) and Mr. Bucklew’s motion for stay of execution

(Doc. 6) in one cursory response, devoid of genuine discussion and authority supporting

Defendants’ position. (Doc. 8).

“Russell Bucklew appears to have serious medical issues,” Defendants reluctantly and

belatedly acknowledge, but still Defendants’ offer no reasonable plan to execute Mr. Bucklew

within the confines of the United States Constitution. (Doc. 8, at 1). They instead prefer to fly

blind, with no recent imaging studies, no physical examination of Mr. Bucklew’s airway, and

haphazard changes to the protocol – removing methylene blue because of the blood pressure risk,

then replacing it with a dye that is even more dangerous, then saying they are not going to use

either. This leaves the execution team members – including the non-medical personnel who

actually inject the lethal drugs – carrying out a protocol they have not trained in.

Defendants’ arguments are erroneous and misleading for numerous reasons, and they are

merely an attempt to distract and shift attention away from their own failure to provide a

constitutionally acceptable level of medical care. Further, in light of their persistent attempts to

keep Mr. Bucklew from obtaining funding during state court mandamus actions (see infra), they


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should be estopped from even making the argument. Defendants have had total access to Mr.

Bucklew’s records throughout his incarceration and were well aware of the vascular tumors,

described repeatedly with terms like “very massive,” and with the obstruction of his airway,

repeatedly described as “severe.”

I. Defendants Have Repeatedly Changed Their Protocol

Having changed their litigation position and their protocol several times, on September

24, 2013, Defendants represented to the media, without supplementing their discovery responses

to the plaintiffs (including Mr. Bucklew) in Zink v. Lombardi, 2:12-CV-04209, that they

intended to use pentobarbital from a compounding pharmacy. Again without supplementing

their discovery, Defendants continued to make changes in their protocol with no notice to Mr.

Bucklew, and which Mr. Bucklew only discovered from Defendants’ responses to Missouri

Sunshine Law requests by collateral sources. Among these changes was the introduction of a

medical doctor or osteopath to write a “prescription” for the lethal drug(s). Another requirement

was that the prior compounding pharmacy have its drug tested by a laboratory. On November

20, 2013, Defendants again changed their execution procedure, without updating their protocol.

On Friday, November 15, 2013, Defendants filed a pleading wherein they changed the protocol

again. Defendant Dave Dormire, a nonphysician and Director of Adult Institutions, represented

that whether the DOC would use central line access would depend on unidentified persons’

opinions about the plaintiff’s “medical condition.” Zink v. Lombardi et al., 2:12-CV-04209,

Doc. 157, Ex. 10. Mr. Bucklew is a plaintiff in the Zink case, so for Defendants to suggest Mr.

Bucklew has not challenged the state’s constant change in procedure and protocol is

disingenuous. Mr. Bucklew was also a plaintiff in other prior lethal injection litigation, Ringo v.

Lombardi, Case No. 09-4095, and was a plaintiff-intervenor in Clemons v .Crawford, Case No.


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07-4129. Mr. Bucklew’s challenges to Missouri’s protocol date back to 2008, which was also

when he began requesting court-authorized funds to obtain a medical expert to examine his

records and provide an opinion on the risks of lethal injection to him. Defendants are well aware

of Mr. Bucklew’s efforts to obtain court funding, and they opposed it repeatedly when Mr.

Bucklew sought those funds in Missouri courts. (See discussion infra).

Moreover, Defendants’ protocol is the proverbial moving target – they have changed

their executions procedures twice in forty-eight hours. On Tuesday, May 13, 2014, Defendants

informed Mr. Bucklew’s counsel that they would not use methylene blue in Mr. Bucklew’s

execution because of the blood pressure risks Dr. Zivot identified and that they would instead use

the substance indigo carmine with the saline solution in the IV line instead. Counsel

immediately contacted expert Dr. Larry Sasich, who informed counsel that indigo carmine was

not a safe substitute for methylene blue because it also causes spikes in blood pressure and has

an added risk of causing IV lines to block. Counsel immediately informed Defendants of the

problems with their hastily chosen substitute indigo carmine. (Ex. 2, email from counsel to

Defendants on May 13, 2014, following consultation with Plaintiff’s expert).

On May 16, 2014 – just five days before the scheduled execution – Defendants revealed

in their Response another hastily made change – indicating that they will not use indigo carmine

because of the risks posed to Mr. Bucklew, stating: “The Department of Corrections will not use

methylene blue in Bucklew’s execution and will not use indigo carmine, a dye which also may

raise blood pressure, or any other dye.” (Doc. 8, p. 7). Defendants’ constant shifts in protocol

reveal recklessness and careless disregard for the safety of Mr. Bucklew. Why was it Mr.

Bucklew’s expert, rather than the State’s execution doctor, who warned the DOC of the well-

documented risks of methylene blue and then indigo carmine? Why doesn’t the State’s allegedly


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board-certified anesthesiologist know of these risks? Defendants are changing their protocol on

the fly, which is further evidence of the DOC’s recklessness and deliberate indifference to the

serious medical needs of Mr. Bucklew.

What will Defendants now use to flush the IV line and ensure the line is moving the

lethal chemical properly? Nothing? A secret, undisclosed substance? This change in protocol

was not noticed, Mr. Bucklew has no knowledge whatsoever about the substance Defendants

may have chosen to replace methylene blue and as a result has no opportunity to investigate

whether the chosen alternative poses even greater risks to Mr. Bucklew.

These abrupt, last-minute changes are further evidence that DOC officials do not know

what they are doing and are wholly unprepared to execute someone with serious medical

problems like Mr. Bucklew. The switch to indigo carmine and then the abrupt dropping of it was

particularly troubling, as it indicated the DOC did nothing to investigate this substance before

informing Mr. Bucklew’s counsel that it would be used in place of methylene blue.

Now, the DOC states it is using no dye. This, too, is troubling, and requires the execution

team – whose members include non-medical personnel – to carry out a protocol that they are not

trained in. The DOC protocol included methylene blue for an important reason; otherwise the

DOC would not have included it. Now, the DOC proposes nothing, or a totally unknown

substance, in its place. This raises a critical question – how will the execution team, remotely

stationed in the “execution support room” – confirm that the IV line is flowing properly or

continuing to flow when the dye is no longer used?

We can have no confidence in the DOC’s assertion that all is well as it applies to Mr.

Bucklew, who suffers from a serious, documented medical condition that partially obstructs his

airway and fills his head, neck and throat with weak, distended vessels. Defendants have offered


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no evidence to controvert Plaintiff’s medical evidence. Surely, Defendants have had ongoing

and unfettered access to Plaintiff’s medical records and have the resources to obtain expert

opinions. Yet, they offer no evidence to dispute Mr. Bucklew’s assertions, and no evidence in

support of their assertion that their protocol will work as intended with Mr. Bucklew. In

contrast, Mr. Bucklew has squarely met his burden and has shown a substantial risk of severe

harm and excruciating pain. See Baze v. Rees, 550 U.S. 35, 50 (2008); Brewer v. Landrigan, 131

S. Ct. 445 (2010).

In Zink, the district court found that the DOC keeps changing its protocol for the very

purpose of delaying and preventing full and fair litigation of Mr. Bucklew’s and other plaintiffs’

lethal injection claims:

Defendants’ protocol has been a frustratingly moving target. In the face of such a grave consequence as that of the death penalty, this Court declines to reward Defendants’ attempts to prevent Plaintiffs from fully litigating their claims.

Zink v. Lombardi, 2:12-CV-04209, Doc. 163 at 12-13.

These efforts by Defendants to delay and obstruct continue to this date, leaving Mr.

Bucklew unaware of many aspects of Defendants’ protocol, including whether the lethal drug is

even subjected to laboratory testing. Prior to the stay of discovery in Zink recently ordered by

the court, Defendants continually delayed and obstructed discovery. The court has justly

criticized this tactic: “Defendants cannot repeatedly change the execution protocol, including

within five days of a scheduled execution, and rely on Plaintiff’s lack of time to research the

protocol’s effects when arguing that Plaintiff’s have not presented substantial likelihood of

success on the merits.” Id. at 10-11.

II. Mr. Bucklew Has Attempted to Obtain Funds to Retain Experts, Which Defendants Have Actively Opposed at Every Turn


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Defendants misstate the extensive record that establishes that Mr. Bucklew’s counsel

have repeatedly attempted to obtain experts and funding to litigate Mr. Bucklew’s claims.

Defendants fail to inform the Court that not only do they know that Mr. Bucklew has litigated,

extensively, his right to access to experts but that they have actively opposed such motions that

were brought in Missouri state court. It is extremely disingenuous for the Defendants to accuse

Mr. Bucklew of dragging his feet on this grievance. The State of Missouri – represented by the

same state Attorney General’s office – has repeatedly opposed Mr. Bucklew’s efforts to obtain

expert services in the previous litigation.

Promptly upon discovering the relationship between Mr. Bucklew’s vascular

malformations and the prospects for an unconstitutional lethal injection execution, Mr.

Bucklew’s counsel consulted with a medical expert in the area. This expert was qualified and

willing to examine Mr. Bucklew and to conduct a detailed medical literature review to determine

to a reasonable degree of scientific certainty whether lethal injection pursuant to Missouri’s

execution protocol would cause a substantial risk of pain to Mr. Bucklew. Even though Mr.

Bucklew was indigent and counsel made a prima facie showing that Missouri’s execution

protocol was at least constitutionally suspect, as applied to Mr. Bucklew, the State actively

opposed Mr. Bucklew’s efforts to obtain the funds necessary to secure an expert, and no court or

indigent-defense entity was willing to authorize the funds necessary to obtain the expert services

that were required to meet Mr. Bucklew’s burden of proof.

On June 9, 2008, counsel filed an ex parte motion in the Eighth Circuit for expert

services funding. Mr. Bucklew sought the modest sum of $7,200, which the proposed expert

deemed reasonably necessary at that time to assess Mr. Bucklew’s medical condition to

determine whether execution by Missouri’s lethal injection protocol would cause Mr. Bucklew to


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suffer excruciating pain. On June 27, 2008, the Eighth Circuit denied the motion without

explanation. Bucklew v Luebbers, Case No. 03-3721.

Counsel then sought funds from Missouri State Public Defender with which to hire an

expert. Its director denied counsel’s request. In denying the request for funds, the director stated

the denial was based entirely on lack of money.

Accordingly, on June 15, 2009, counsel filed a petition for writ of mandamus in the

Missouri Supreme Court asking it to direct Missouri State Public Defender to provide either

expert services for Mr. Bucklew or funds with which Mr. Bucklew’s counsel could obtain expert

services. Counsel presented the Missouri Supreme Court with an ex parte affidavit by the

medical expert concerning his willingness to serve as an expert and his initial opinion that Mr.

Bucklew’s cavernous hemangiomas posed serious potential risks in an execution by lethal

injection. The Missouri Supreme Court denied the mandamus petition without prejudice to

seeking relief in circuit court. State ex rel. Bucklew v. Robinson, SC90198 (Mo. June 30, 2009)

(en banc).

On December 30, 2009, Mr. Bucklew sought relief in Cole County Circuit Court. One of

the assistant state attorneys general then handling lethal-injection litigation appeared at the

February 5, 2010 hearing. On February 22, 2010, the State Attorney General’s office filed

suggestions in opposition or, in the alternative, a motion to dismiss. On March 29, 2010, the

same office filed supplemental suggestions in opposition to expert funding. On March 30, 2010,

the Cole County trial court summarily denied relief. State ex rel. Bucklew v. Robinson, No.

09AC-CC00766 (Cir. Ct. Cole Cty. Mar. 30, 2010).

On May 27, 2010, Mr. Bucklew returned to the Missouri Supreme Court, which had

initially denied relief without prejudice. On June 24, 2010, the State filed suggestions in


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opposition. Once again the Missouri Supreme Court denied relief without prejudice. State ex

rel. Bucklew v. Robinson, No. SC90924 (Mo. Aug. 31, 2010).

On September 29, 2010, Mr. Bucklew brought an action in the Missouri Court of

Appeals, Western District. Without waiting for the suggestions in opposition, that court

summarily denied relief. State ex rel. Bucklew v. Robinson, WD72984 (Oct. 13, 2010).

After Mr. Bucklew had exhausted his remedies at both lower levels of the state courts, on

February 23, 2011, he sought MSPDS funding once more from the Missouri Supreme Court.

Without waiting for another answer from the state, the latter court denied relief, this time with

prejudice. State ex rel. Bucklew v. Robinson et al., No. SC91556 (Mo. Mar. 29, 2011) (en banc).

(For this Court’s review, Mr. Bucklew’s last application to the Missouri Supreme Court is

attached as Ex. 3, and the dockets from the various state actions have been combined are

attached as Ex. 4).

In March 2011, appointed counsel filed Criminal Justice Act (CJA) vouchers seeking

payment for, inter alia, counsel’s persistent efforts to obtain funding for a medical expert. The

risks posed to Mr. Bucklew by lethal injection are an issue both in court proceedings and in

executive clemency, as the Governor has the power to grant clemency on any grounds, including

that the intended execution will inflict pain and suffering on the prisoner in violation of the

Eighth Amendment’s ban on Cruel and Unusual Punishment. (Indeed, in the past few weeks,

undersigned counsel has communicated repeatedly with the Governor’s office, through one of

his aides, supplying extensive information about Mr. Bucklew’s cavernous hemangiomas as well

as affidavits from Mr. Bucklew’s medical experts – including two physicians counsel was

fortunate enough to locate who were willing, in the present exigent situation, to provide initial

affidavits at no charge, with merely the hope of being compensated at later date.)


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The district court cut counsels’ vouchers by approximately 70 percent and denied any

further funding whatsoever. (When Mr. Bucklew’s co-counsel unsuccessfully sought review in

the United States Supreme Court by filing a petition for certiorari, the State again registered its

opposition). Thus, from February 2012 to the present, counsel has been obligated to represent

Mr. Bucklew for no compensation whatsoever, not even for expenses. Mr. Bucklew’s counsel

then returned to the district court in April 2014, again seeking approval of a proposed budget for

representation and again requesting fees for expert services, including $7,500 for a physician to

review Mr. Bucklew’s records, examine him and render an opinion.

Mr. Bucklew’s inability to obtain funding has placed him at an extreme and unfair

disadvantage. With the ability to assign four attorneys to this case and the ability to pay for any

medical testing or the services of an expert, the State has not been similarly burdened. After

repeatedly opposing counsels’ efforts to obtain funding for a medical expert, they now assert that

counsel should somehow have conjured up free experts willing to spend many hours reviewing

records and providing opinions. Given its active opposition to Mr. Bucklew’s efforts to obtain

funding, the State should be estopped from making this disingenuous argument. At any point,

the State could have changed its opposition and could have confessed error and endorsed the

payment of $7,200 that Mr. Bucklew was seeking for the initial expert’s time and expenses.

Defendants complain that after the predictable atrocity in the case of Dennis McGuire in

Ohio – who also had a preexisting condition that the DOC’s own expert, Mark Dershwitz,

persuaded a federal court to disregard – and after the more recent failed execution of Clayton

Lockett, experts have come forward to provide affidavits. Those bungled executions were not

the reason these experts supplied affidavits. Rather, these experts have agreed to assist counsel

after the Missouri Supreme Court set an execution date. It is the imminence of the execution


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date and the urgency it imposes that has enabled counsel to persuade medical experts to assist

them in this litigation. It is not Mr. Bucklew or the experts, but the Defendants, who have been

the laggards here, for not paying attention to the clear evidence they began to receive in June

2009 – much of which originated in their own files, and which remains undisputed to this day.

Moreover, throughout Mr. Bucklew’s entire incarceration, dating back 18 years, the State has

had access to Mr. Bucklew’s medical records and has had notice of his grave medical condition.

Defendants misstate the facts regarding the payment of fees to Dr. Zivot and Dr. Jamroz.

Dr. Zivot and Dr. Jamroz are experts, and they ultimately hope and expect to be paid for their

work like any other expert with specialized knowledge. At present, Mr. Bucklew’s counsel are

paying out of their own pocket to obtain the medical records those experts need to review and

similarly are paying for all out-of-pocket expenses, including Dr. Zivot’s travel expenses.

Absent the imminence of the execution date, counsel would not have been able to obtain these

opinions from medical experts who are extremely busy with their own practices and heavy

responsibilities.

III. Mr. Bucklew’s Medical Evidence Is Uncontroverted

Defendants’ filing is remarkable for what it does not argue. Defendants make no attempt

to refute Mr. Bucklew’s factual showing that Missouri’s protocol, as applied to him, creates a

“significant risk” of substantial harm. Defendants still offer no expert evidence to refute the

opinions of any expert offered by Mr. Bucklew. The Missouri DOC has known about Mr.

Bucklew’s serious and risky medical condition for 18 years. Although Mr. Bucklew’s vascular

malformations and tumors have grown throughout his adult life, including his 18 years in the

custody and care of the DOC, no imaging – neither a CT scan nor an MRI – has been conducted

on Mr. Bucklew during the last four years. The report following a June 2010 MRI describes Mr.


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Bucklew’s hemangioma as a “large complex right facial mass” that extends through the right-

side nasal passages, sinuses, pharynx, jaw, palate and throat. (Doc. 1, at 4). The DOC record

goes on to note that Mr. Bucklew’s “airway is severely compromised.” Id. (emphasis added).

In 2003, a DOC doctor wanted Mr. Bucklew to be examined immediately by a specialist

because of the progression of the vascular tumor, which the doctor believed “could be potentially

fatal to the patient.” Id., at pp. 9-10. A July 2011 medical report noted there was “difficulty

[with] bleeding management.” Two months later, another doctor noted the alarming expansion

of the lesion, stating it encompassed “the entire soft palate and uvula, which are impossible to

visualize due to the expansion of the lesion.” Now, Defendants suggest that it is Mr. Bucklew

that has been dilatory when they themselves have failed in their duty under the Eighth

Amendment to provide adequate medical care. The medical records speak for themselves and

this argument is without merit.

Mr. Bucklew has presented two affidavits from Dr. Zivot, a board-certified

anesthesiologist who teaches at Emory University School of Medicine, and an affidavit from Dr.

Gregory Jamroz, who practices at St. Luke’s Hospital in St. Louis – both of whom state that

Missouri’s method of lethal injection poses unique risks to Mr. Bucklew, as his large

hemangiomas are likely to impair the proper circulation of the lethal drug, leading to a prolonged

and problematic execution. Such an execution is highly likely to be excruciating. Dr. Zivot

states that a substantial risk exists that Mr. Bucklew’s hemangiomas will rupture and bleed

during the execution, causing Mr. Bucklew to choke and cough, which he “will experience as

severe pain and suffocation.” (Doc. 1, Ex. 1).

On May 12, 2014, Dr. Zivot examined Mr. Bucklew and supplemented his original

affidavit. (Ex. 6 Affidavit of Joel Zivot, M.D. May 14, 2014). Defendants, despite being noticed


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of the affidavit on May 14, 2014, wholly fail to respond to Dr. Zivot’s observations and opinions.

Dr. Zivot observed what the DOC’s treating physicians have said repeatedly – that Mr.

Bucklew’s airway is “severely compromised or obstructed due to the hemangiomas. It is also

friable, meaning it could tear or rupture.” Id., p. 1. That puts Mr. Bucklew at grave risk during

the execution – coughing, choking, and straining to breathe could all lead to a full obstruction of

his airway and suffocation. Id.

IV. The State Has Failed in Its Obligation to Provide Medical Care and Obtain Necessary Testing, and Has No Plan to Meet Its Obligation to Provide Medical Care When Mr. Bucklew’s Execution Is Unsuccessful. If the state is to carry out executions, it must do so within the confines of the Eighth

Amendment. Mr. Bucklew has presented detailed, uncontroverted medical evidence based on

the DOC’s own medical records1 and the expert affidavits of Dr. Jamroz (Doc. 1-2) and Dr.

Zivot (Doc. 1-2, and Doc.7-1, Ex. 5) that there is substantial risk that Mr. Bucklew will

experience constitutionally intolerable pain and suffering during his execution. Defendants are

obligated to reduce these risks. Defendants have failed in their constitutionally mandated

obligation to provide adequate medical care to Mr. Bucklew.

Defendants argue that the Mr. Bucklew’s request for a temporary restraining order and

preliminary injunction is “untimely insofar as it relies on a request for testing that cannot be

completed before Bucklew’s scheduled execution.” (Doc. 8, p. 9). If there isn’t time to perform

the required testing, the fault lies with Defendants. Defendants have known about Mr.

Bucklew’s serious medical condition, his propensity to hemorrhage and his “severely

compromised airway” for years. The primary reason Plaintiff is in this position, shortly before

the scheduled execution, is because Defendants have not obtained the medical care and

1 See Ex. 5, a compilation of the most relevant excerpts from Mr. Bucklew’s medical records.


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diagnostic testing that they are obligated to provide to Mr. Bucklew. Mr. Bucklew’s counsel

informed Defendants that medical providers were willing to conduct the necessary testing, but

that a doctor, acting as Mr. Bucklew’s treating physician, had to order the tests. Counsel heard

nothing from Defendants after conveying this information. It is likely, though only Defendants

can confirm, that they are unable to obtain the consent of any doctor to order the tests in an

attempt to clear Mr. Bucklew for execution, because Corizon and PharmaCorr, the providers of

medical care to DOC inmates, “do not participate in executions in any way. Corizon and

PharmaCorr do not participate in executions in Missouri or any other state.”2 The DOC alone is

responsible for providing medical care and for ensuring that a doctor is obtained who can order

the necessary tests. Defendants are responsible for ensuring that their lethal injection protocol

comports with the Eighth Amendment as applied to Mr. Bucklew. Defendants cannot pass this

responsibility to Mr. Bucklew when they are the only ones in the position to order the tests,

absent intervention by this Court.

Chief of Neuroradiology and Professor of Radiology at Washington University in St.

Louis, Franz J. Wippold, II, M.D., submitted a letter to this Court on May 14, 2014, indicating

that Barnes Jewish Hospital and the Washington University Medical School are willing and

uniquely suited to further evaluate and conduct testing on Mr. Bucklew should Mr. Bucklew’s

treating physician refer him, or should this Court order the necessary testing. (Ex. 1). Dr.

Wippold suggested, as have all other experts, that Mr. Bucklew’s airway needs to be evaluated

before any procedure – including imaging tests – could safely take place. Id., at 1. Dr. Wippold

has not been retained as an expert for Mr. Bucklew, he has no plausible reason to exaggerate the

seriousness of Mr. Bucklew’s condition, and Defendants do not even mention his letter in their

2 Bob Priddy, Prison healthcare company says it makes no death drugs. MissouriNet, Jan. 23, 2014.


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suggestions in opposition. Dr. Wippold simply recognizes the risks that any reasonably

competent medical provider recognizes – that Mr. Bucklew’s condition is serious, complex and

requires expertise, skill and equipment to evaluate. Defendants’ argument that Mr. Bucklew is

out is time fails for want of logic and basis in fact. Defendants are the only party that can order

the evaluation and testing, they are constitutionally obligated to do so, and they have not fulfilled

these obligations. Simply because they say it is the fault of Mr. Bucklew does not make it so.

If Mr. Bucklew’s execution is botched, or unsuccessful, then the DOC’s obligation to

provide medical care fully resumes. Defendants state, incorrectly and without authority, that

“Bucklew asks that Missouri make plans to revive him during the execution. That is a change in

the method of execution, and it is not required by law.” (Doc. 8, p. 7). Defendants are mistaken.

In this Circuit, in order to prevail on an Eighth Amendment claim involving the

deprivation of medical care to treat an existing condition, “an inmate must show that the prison

official was deliberately indifferent to the inmate’s serious medical needs.” Schaub v. Vonwald,

638 F.3d 905, 914 (8th Cir. 2011)(citing Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997)).

Two showings are required: that “the inmate suffered from an objectively serious medical need,

and ... the prison official knew of the need yet deliberately disregarded it.” To constitute a

“serious medical need,” the health problem must be “one that has been diagnosed by a physician

as requiring treatment, or one that is so obvious that even a layperson would easily recognize the

necessity for a doctor’s attention.” Id. (quoting Camberos v. Branstad, 73 F.3d 174, 176 (8th Cir.

1995)).

Deliberate indifference in this context “entails something more than mere negligence, ...

[but is] satisfied by something less than acts or omissions for the very purpose of causing harm

or with knowledge that harm will result.” Farmer v. Brennan, 511 U.S. 825, 835 (1994). There


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is a subjective requirement: an official cannot be found liable of an Eighth Amendment

violations “unless the official knows of and disregards an excessive risk to inmate health or

safety; the official must both be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837. Thus,

the Supreme Court has determined that “subjective recklessness as used in the criminal law ...

[is] the test for ‘deliberate indifference’ under the Eighth Amendment.” Id. at 840. Deliberate

indifference is evaluated on the basis of “the official’s knowledge at the time in question, not by

‘hindsight’s perfect vision.’” Schaub, 638 F.3d at 914.

The Eighth Circuit has found such “deliberate disregard when officers ignore an inmate

who tells them he has heart disease and is experiencing related symptoms.” Gordon v. Frank,

454 F.3d 858, 863 (8th Cir. 2006). Similarly, when an inmate exhibits “obvious signs of medical

distress” and “communicates this distress directly to officers,” there is deliberate indifference

because “a reasonable officer would know that it is unlawful ... to delay treatment” under the

circumstances. Id. Wherever there is an “obvious risk of harm,” the inference is justified that

the official “subjectively disregarded a substantial risk of serious harm to the inmate.” Schaub,

638 F.3d at 915.

Mr. Bucklew isn’t asking the DOC to revive him. The DOC is constitutionally required

to provide him adequate medical care, including resuscitation efforts, in the event of an

unsuccessful execution, which would mean that Mr. Bucklew survived the effort to kill him. If

Mr. Bucklew’s execution is unsuccessful, the DOC’s obligation to provide medical care is

reinstated in that instant. Mr. Bucklew has sounded the alarm, with convincing evidence that his

vascular tumors will likely prevent the lethal drug from circulating properly, and has called for

additional tests of his vascular system to further analyze these risk – tests that the DOC was


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obligated to obtain. If the drug does not circulate properly, or Mr. Bucklew hemorrhages and

begins to choke on his own blood, as Mr. Bucklew and his experts have warned, then the DOC

has an obligation to step in the minute the execution is unsuccessful. “Missouri’s execution

protocol provides no contingency for a failed execution, or a situation where a prisoner starts

gasping for air or experiences hemorrhaging.” Ex. 6, at 2. Mr. Bucklew has informed the DOC

of these risks, they are reasonably apparent to any competent medical provider, and the DOC is

constitutionally obligated to account for these risks. They have failed in their constitutional

obligations, and Mr. Bucklew is entitled to a stay of execution until Defendants comply with the

demands of the Constitution.

In Oklahoma, only days ago, the Oklahoma DOC had an obligation to try and revive Mr.

Lockett when officials botched his execution. When the execution failed, officials were

unprepared and did not have resuscitation personnel and equipment available. As a result, Mr.

Lockett suffered for 43 agonizing minutes in what President Obama called a “deeply disturbing”

execution, and that prompted him to order a federal policy review of execution protocols and

procedures, including Missouri’s.

Mr. Bucklew has given Defendants detailed, convincing evidence and expert opinions

supported by the record that the risks posed during Mr. Bucklew’s execution are constitutionally

intolerable.

V. Conclusion

WHEREFORE, for the reasons set forth in this reply, as well as those presented in Mr.

Bucklew’s Motion for Temporary Restraining Order and Preliminary Injunction (Docs. 2, 3) and

his Motion for Stay (Doc. 6), Mr. Bucklew respectfully requests that this Court:


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1. Issue a stay of execution so that Mr. Bucklew may obtain necessary imaging and

testing;

2. Order that Washington University and Barnes Jewish Hospital conduct the necessary

testing and imaging in this case, as described by Dr. Wippold;

3. Grant Mr. Bucklew a hearing on his motion for temporary restraining order and

preliminary injunction so that the Court may hear evidence from the experts in this case; and,

4. Grant further relief as the Court deems just and appropriate.

Respectfully submitted,

/s/ Cheryl A. Pilate Cheryl A. Pilate #42266 Lindsay J. Runnels #62075 Morgan Pilate, LLC 926 Cherry St. Kansas City, Missouri 64106 (816) 471-6694 (816) 472-3516 (fax) Attorneys for Mr. Bucklew


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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was forwarded for transmission via ECF this 16th day of May, 2014, to Michael Spillane, Stephen D. Hawke, Sue Boresi, Office of the Attorney General, P.O. Box 899, Jefferson City, Missouri 65101.

/s/ Cheryl A. Pilate Cheryl A. Pilate


Documents

Doc. 12 Bucklew Reply Re Motion to Stay as Filed