Cecil CLAYTON, Plaintiff-Appellant v. George LOMBARDI; Troy Steele, Defendants-Appellees, 780 F.3d 900

PER CURIAM. Cecil Clayton moves for stay of his execution scheduled for March 17, 2015, at 6:00 p.m., pending full briefing and argument of his appeal from the district court’s dismissal of his complaint, brought under 42 U.S.C. § 1983, seeking an emergency declaration of his rights under the Eighth and Fourteenth Amendments. The district court dismissed Clayton’s complaint, finding that it is frivolous and fails to state a claim upon which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B). I.

Clayton’s § 1983 complaint alleges that even if found competent, Clayton would be subject to cruel and unusual punishment due to his brain injury.

Specifically, he argues that (1) the State of Missouri, in its discretion, may offer two pre-execution drugs, midazolam and valium, to calm him, but that his brain injury renders him unable to make a reasoned and competent decision whether to take the pre-execution drugs; (2) the particular nature of his brain injury, combined with the manner in which these two drugs affect the brain, creates an elevated risk of an atypical reaction to the pre-execution drugs, which is likely to leave him agitated and confused and poses a heightened likelihood that intravenous (IV) access will be difficult; (3) if the State withholds the pre-execution drugs from Clayton simply because of his disability, such action would violate Clayton’s rights to equal protection and the right to be free from cruel and unusual punishment; and (4) the administration of the pre-execution drugs, combined with Clayton’s brain injury, could produce extreme psychological disarray and decompensation, such that he might not understand why he is being executed.

II. “[A] stay of execution is an equitable remedy.” Hill v. McDonough, 547 U.S. 573, 584, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006) (citation omitted). “[Ijnmates seeking time to challenge the manner in which the State plans to execute them must satisfy all of the requirements for a stay, including a showing of a significant possibility of success on the merits.” Id. (citations omitted).

Clayton argues that the district court made clearly erroneous factual findings and misconstrued the law by not recognizing that his “lawsuit is based on the unique risks to him arising from his severe and undisputed brain damage.” Motion for Stay at 2. According to Clayton, his suit is distinguishable from prior lethal-injection actions because it “is based on the singular risks associated with Mr. Clayton’s severe brain damage — he is missing 20% of his frontal lobe — and physiological impact thereof.” Id. at 4.

Clayton contends that he is likely to succeed on the merits of his appeal of the district court’s order dismissing his § 1983 complaint because “he has presented concrete, uncontroverted medical evidence and an expert affidavit that Missouri’s lethal injection protocol, as applied to him, creates a substantial risk of severe, needless pain or a lingering, torturous death; or that he will not in fact die, but be paralyzed and left in a vegetative state for the remainder of his life.” Id. at 8.

Having reviewed Clayton’s § 1983 complaint and the factual allegations stated therein, we conclude that the district court’s order was in accordance with Zink v. Lombardi, 783 F.3d 1089, No. 14-2220, 2015 WL 968176 (8th Cir.

Mar. 6, 2015) (holding that successfully pleading facts to demonstrate a substantial risk of severe pain, as required to state a plausible Eighth Amendment claim in the context of an attack upon a state’s execution protocol, requires the prisoner to plead more than just a hypothetical possibility that an execution could go wrong, resulting in severe pain to a prisoner; the Eighth Amendment prohibits an objectively intolerable risk of pain, rather than simply the possibility of pain). III. Accordingly, we deny Clayton’s motion for stay of execution pending appeal.