No.

_______
IN THE SUPREME COURT OF THE UNITED STATES
*****
LEON TAYLOR.,

Petitioner,

v.
GEORGE A. LOMBARDI, et al.

Respondents.

*****
ON PETITION FOR PRE-JUDGMENT WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
THIS IS A CAPITAL CASE
EXECUTION SCHEDULED FOR NOVEMBER 19 AT 12:01 A.M.
*****
PETITION FOR WRIT OF CERTIORARI
*****
ELIZABETH UNGER CARLYLE
(Counsel of Record)
6320 Brookside Plaza #516
Kansas City, Missouri 64113
(816) 525-6540
Kathryn B. Parish
Sindel, Sindel and Noble, P.C.
8000 Maryland, Suite 350
Clayton, MO 63105
(314)721-6040

Counsel for Petitioner

QUESTIONS PRESENTED
After the Missouri Department of Corrections (hereinafter MDOC)
announced a new execution protocol in May of 2012, plaintiffs filed suit. The district
court ruled in plaintiffs favor regarding certain discovery issues, but the Eighth
Circuit granted a mandamus petition, ruling that no discovery was required
because plaintiffs had not met the requirement of Baze v. Rees, 553 U.S. 35 (2008),
that a prisoner propose an alternative means of execution in order to state an
Eighth Amendment claim attacking the states method of execution. After a number
of frustrated discovery requests and MDOCs issuance of multiple additional
changes in the execution protocol, plaintiffs filed their second amended complaint,
alleging among other things that the protocol violated their Eighth Amendment
rights and that the defendants obstruction of access to information about lethal
injection drugs and processes violated their due process rights. Plaintiffs did not
specifically allege an alternative execution method. The district court dismissed the
amended complaint as to all claims. This case presents the following questions:
I. Whether a plaintiff alleging that a states chosen method of execution violates
the Eighth Amendment must always plead a specific alternative constitutional
method of execution in order to avoid dismissal?
II. Whether the due process clause permits state actors to resist any judicial
scrutiny or substantive constitutional review of its lethal injection practices by
obstructing attempts to discover truthful information relevant to constitutional
claims raised and to continue to carry out executions while so doing?
i

PARTIES TO THE PROCEEDINGS BELOW

Parties to the proceedings in the district court below were:
Plaintiffs:
David Zink
Michael Worthington (Now Deceased)
John E. Winfield (Now Deceased)
Michael A. Taylor (Now Deceased)
Leon Taylor
Walter T. Storey
Herbert Smulls (Now Deceased)
William Rousan (Now Deceased)
Earl Ringo (Now Deceased)
Roderick Nunley
Allen L. Nicklasson (Now Deceased)
John C. Middleton (Now Deceased)
Paul T. Goodwin (Execution scheduled for December 10, 2014)
Joseph Paul Franklin (Now Deceased)
Jeffrey R. Ferguson (Now Deceased)
Andre Cole
Reginald Clemmons
Cecil Clayton
Mark A. Christeson
ii

Russell E. Bucklew
David M. Barnett
Marcellus Williams (Intervenor-Plaintiff)
Richard Strong (Intervenor Plaintiff)
Defendants:
George A. Lombardi
David R. Dormire
Terry Russell
John Does 2-40

iii

TABLE OF CONTENTS
Questions presented ....................................................................................................... i
Table of Contents .......................................................................................................... iii
Table of Authorities ....................................................................................................... v
Opinions below ............................................................................................................... 1
Jurisdiction .................................................................................................................... 1
Statutory and Constitutional Provisions Involved ....................................................... 1
Statement of the Case ................................................................................................... 3
Reasons for Granting the Writ ...................................................................................... 8
I.

THE ISSUE OF EIGHTH AMENDMENT PLEADING REQUIREMENTS IN

METHOD OF EXECUTION CHALLENGES IS A QUESTION OF GREAT
IMPORTANCE THAT REQUIRES CLARIFICATION BY THIS COURT ...... 8

II.

THE CONDUCT OF STATE ACTORS WHICH WAS UPHELD BY THE

DISTRICT COURT AND HAS BEEN SANCTIONED BY THE EIGHTH
CIRCUITS RECENT RULINGS VIOLATES DUE PROCESS AND IS SO
EGREGIOUS AS TO REQUIRE THE EXERCISE OF THIS COURTS
SUPERVISORY POWER .................................................................................. 19

III.

THIS COURT SHOULD GRANT CERTIORARI PRIOR TO JUDGMENT

BECAUSE THE CASE IS OF IMPERATIVE PUBLIC IMPORTANCE AND
REQUIRES IMMEDIATE DETERMINATION BY THIS COURT. .............. 24

Conclusion .................................................................................................................... 27
Appendix
Order of The District Court dismissing case, Dated 5/2/20141a
Order of The District Court dismissing case, Dated 5/16/201425a
Order of The District Court granting Stay Of Execution, dated 11/19/201327a
iv

Second Amended Complaint, filed in the district court 2/03/2014..41a

Affidavit of Dr. Larry Sasich, dated November 7, 2013..213a
Affidavit of Mark Heath 244a
Deposition of Matthew Briesacher (Mar. 21, 2014)..262a
In re Lombardi, 741 F.3d 888, 895-97 (8th Cir. 2014) (en banc)351a
In re Lombardi, 741 F.3d 903, 905 (8th Cir. 2014) (en banc) (Lombardi II)366a
Zink v. Lombardi, Case No. 14-2220, Motion to Supplement Record, Filed
September 24, 2014 .369a
Zink v. Lombardi, Case No. 14-2220, Supplemental Appendix, Filed September 24,
2014.375a
Order Denying Motion to Supplement the Record...388a
Motion for Sanctions Filed in District Court, Dec. 10, 2013..389a
Inventories of DOC drugs..410a

Zink v. Lombardi, No: 1(8th Cir. 11/18/2014) (Bye, dissenting..707a-1388 (8th

Cir. 2/25/2014)(Bye, dissenting)..441a

Rousan v. Lombardi, No. 14-1919 (8th Cir. 4/22/2014 (Bye, dissenting)445a

Deposition of George Lombardi448a
Worthington v. Lombardi, No.14-2220 (8th Cir. 8/1/2014)(Bye, dissenting)..533a
List of Pending Proceedings Involving Lethal Injection Protocols538a
Zink v. Lombardi, Case No. 14-2220, Appellants Opening Brief..539a
Zink v. Lombardi, Case No. 14-2220, Respondents Response Brief 616a
Zink v. Lombardi, Case No. 14-2220, Appellants Reply Brief...680a
Zink v. Lombardi, Case No. 14-2220, (8th Cir. 11/18/2014) (Bye, dissenting..707a

TABLE OF AUTHORITIES
Cases

Agostini v. Felton, 521 U.S. 203 (1997) ...................................................................... 15

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................................................................ 16
Baze v. Rees, 553 U.S. 35 (2008) ............................................................................ i, 6, 7
Bucklew v. Lombardi, Eighth Circuit Case No. 14-2163 ............................................. 3
Casey, 518 U.S. at 354 ................................................................................................. 20
Chavez v. Florida SP Warden, 742 F.3d 1267 (11th Cir. 2014) ............................ 10, 11
Clemons v. Crawford, 585 F.3d 1119 (8th Cir. 2009) ........................................... 10, 13
Cooey v. Strickland, 589 F.3d 210 (6th Cir. 2009)........................................................ 9
Cook v. Brewer, 649 F.3d 915 (9th Cir. 2011) ............................................................ 10
Hill v. McDonough, 547 U.S. 573 (2006) ............................................................. passim
In re Lombardi, 741 F.3d 888, 895-97 (8th Cir. 2014) ................................................. 6
Jackson v. Danberg, 594 F.3d 210 (3rd Cir. 2010) ..................................................... 13
Johnson v. City of Shelby, Mississippi, , No. 13-1318, 2014 WL 5798626 (U.S. Nov.
10, 2014) ............................................................................................................. 14, 17

Jones v. Bock, 549 U.S. 199, 213 (2007) ............................................................... 14, 15

Lewis v. Casey, 518 U.S. 343, 356 (1996) ............................................................. 20, 25
In Re Lombardi, 741 F.3d 888, 895-97 (8th Cir. 2014) .............................................. 14
In re Lombardi, 741 F.3d 903, 905 (8th Cir. 2014)............................................. 6, 7, 16
Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989) ...................................... 15
Raby v. Livingston, 600 F.3d 552 (5th Cir. 2010) ........................................................ 11
Shalala v. Illinois Council on Long Term Care, Inc., 529 U.S. 1, (2000) ................... 15
Taylor v. Lombardi, No. 14-1919 (8th Cir. 4/22/2014 .................................................. 23
Valle v. Singer, 655 F.3d 1223 (11th Cir. 2011 ............................................................ 10
Worthington v. Lombardi, No.14-2220 (8th Cir. 8/1/2014) ......................................... 25
Statutes
28 U. S. C. 2101(e)....................................................................................................... 2
28 U.S.C. 1254 ........................................................................................................ 1, 25
U.S. Const. Amend. VIII ............................................................. 1, 6, 7-10, 12-15, 17-19
U.S. Const. Amend. XIV ................................................................................................ 2
Other Authorities
The Secrecy Behind the Drugs Used to Carry Out the Death Penalty, THE
ATLANTIC, Jan. 26, 2014. ...................................................................................... 18
Federal Rules of Civil Procedure................................................................................. 19
U.S. Constitution ......................................................................................................... 21
vi

Rules
Supreme Court Rule 11 ................................................................................................. 2
Federal Rules of Civil Procedure 8................................................................................ 2
Federal Rules of Civil Procedure 12(b) ......................................................................... 3

vii

OPINIONS BELOW
Petitioner Leon Taylor seeks certiorari from the opinion and judgment of the
United States District Court for the Western District of Missouri entered on May 2,
2014 and May 16, 2014. The orders can be found in the case Zink v. Lombardi,
2:12-cv-4209, Docs. 437 and 443. App. p. 1a, 25a. Direct appeal of these orders is
currently pending in the Court of Appeals for the Eighth Circuit, Case No. 14-2220,
but no opinion has yet been issued.

JURISDICTION
The District Court entered its final order dismissing the case in case no. 2:12cv-04209 on May 16, 2014. A timely notice of appeal was filed, and the appeal is
currently pending in the Eighth Circuit Court of appeals under case number 142220.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254.

STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Const. Amend. VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.

U.S. Const. Amend. XIV, Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the state wherein they reside. No
state shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any state deprive any person
of life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.

United States Supreme Court Rule 11.

A petition for a writ of certiorari to review a case pending in a United States court
of appeals, before judgment is entered in that court, will be granted only upon a
showing that the case is of such imperative public importance as to justify deviation
from normal appellate practice and to require immediate determination in this
Court.

Federal Rules of Civil Procedure 8(a) General Rules of Pleading

(a) Claim for Relief. A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court's jurisdiction,
unless the court already has jurisdiction and the claim needs no new
jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is
entitled to relief; and

(3) a demand for the relief sought, which may include relief in the alternative
or different types of relief.

Federal Rules of Civil Procedure 12(b) How to Present Defenses.

Every defense to a claim for relief in any pleading must be asserted in the
responsive pleading if one is required. But a party may assert the following defenses
by motion:
...
(6) failure to state a claim upon which relief can be granted.

STATEMENT OF THE CASE

A. Missouris execution method
This petition concerns the method of execution announced by the Missouri
Department of Corrections in October 2013 and serially modified since that time.

See Zink v. Lombardi, ECF No. 2:12-cv-4209 (hereinafter ECF) Doc. 163
(noting multiple changes in the protocol); ECF Doc. Bucklew v. Lombardi, Eighth
Circuit Case No. 14-2163, Order of May 20, 2014 at 8-9 (change of IV dyes). The
state executes prisoners with a single dose of what it alleges to be pentobarbital,
made by an undisclosed and non-FDA-regulated compounding pharmacy that the
Department of Corrections (hereinafter, MDOC) has named to its execution
team, and composed of unknown ingredients whose sources the Department also
hides.

Beginning with the execution of Michael Taylor in February 2014, the MDOC
has provided no testing data to show that the substance is in fact pentobarbital, or
that it is pure, potent, and sterile.
B. The prisoners evidence of harm
Expert evidence on the use of compounded pentobarbital is undisputed and
was attached to the prisoners second amended complaint. ECF Doc. 338. This case
began when the prisoners brought suit in the Circuit Court of Cole County,
Missouri, against a propofol-based method of execution that the Department of
Corrections announced in 2012. ECF, Doc. 1. That method, and numerous
intervening methods which preceded the current one are not at issue in this
petition, except to the extent that the States constant change in methodology
implicates the defendants obstruction of plaintiffs due process rights. Unregulated
by the FDA and of unknown origin, compounded pentobarbital presents numerous
hazards that create a substantial risk of serious, unnecessary and substantial
harm and mental anguish, according to pharmacology expert Dr. Larry D. Sasich.
ECF Doc. 338-6, App. 235a. These hazards include subpotency or super-potency;
contamination from toxins, allergens, or particles; and burning or a pulmonary
embolism resulting from failure to reach and maintain the proper pH. App. 219a;
228a. Anesthesiologist Dr. Mark Heath agrees, concluding that Missouris protocol
is replete with flaws that present a substantial risk of causing severe and
unacceptable levels of pain and suffering during the execution. ECF Doc. 338-5,
App. 251a.

What is more, the MDOCs practice has materially worsened during the
course of the litigation. Earlier, the MDOC assured the district court that it tests its
drugs to be sure they are safe, pure, and effective, so that the prisoners did not need
to know the source of the drugs. See ECF Docs. 187-12, 191 at 1, 191-1, 212 at 3,
290-5, 290-6, 290-11, 290-13, 290 at 8. The Department made those same
assurances to this Court when it sought mandamus relief from the district courts
discovery orders: Because the chemical tests within the proper ranges, it does not
matter who made it. Additionally, the Director will not use a chemical that fails a
lab test. In re Lombardi, Eighth Cir. Case No. 13-3699 (hereinafter In re:
Lombardi, Petition for Writ of Mandamus (Dec. 13, 2013), at 16; see also Motion for
stay of district court orders (Dec. 27, 2013), at 5 (The name or the identifying
information of whether the pharmacist is part of a national chain, a local pharmacy,
or something in between, does not matter when the Court knows the end-product
was potent, pure, sterile and worked effectively.).
But the MDOC has since refused to disclose any test results, and it
successfully resisted all discovery of whether it even tests the drugs at all. See e.g.
Deposition of Matthew Briesacher (Mar. 21, 2014), at 43-44, 72-73; App. 304a-305a;
33a-334a; ECF Doc. 189 (motion for protective order). The Court is left then, with
the MDOCs word that the drugs are what it says they are, coupled with its
argument that the prisoners are speculating without benefit of the very information
that the Department refuses to provide. ECF Doc. 196 at 1 (district court noting
Catch-22 when denying stay to Allen Nicklasson). The MDOCs most recent drug
5

logs, disclosed November 17, 2014, do not indicate an expiration date for the
pentobarbital shown in inventory, although expiration dates are disclosed for all
other drugs. App. 410a-441a.
C. Relevant procedural history
Some two months after the MDOC announced its pentobarbital protocol and
named its supplier a secret member of the execution team under Mo. Rev. Stat.
546.720.2, the district court ordered a limited disclosure of the Departments
pharmacy, testing laboratory, and prescribing physician. ECF Docs. 203-05.. The
Eighth Circuit court of appeals eventually vacated that order, reasoning that an
Eighth Amendment claim could not go forward under Baze v. Rees, 553 U.S. 35
(2008), without the plaintiffs proposing an alternative method of execution, that the
prisoners ex post facto claim failed as a matter of law, and that the pharmacys and
laboratorys identities were not relevant to the claims that remained. In re

Lombardi, 741 F.3d 888, 895-97 (8th Cir. 2014) (en banc) (Lombardi I), App. 351a.
The Court clarified its ruling on rehearing. It distinguished Hill v.

McDonough, 547 U.S. 573 (2006), and the Supreme Courts holding that there is no
specific pleading requirement that a prisoner must identify an alternative,
authorized method of execution to proceed in a 1983 action. In re Lombardi, 741
F.3d 903, 905 (8th Cir. 2014) (en banc) (Lombardi II), App. 368a ,quoting Hill, 547
U.S. at 582. Hill differed from the present case, the Court concluded, because the
prisoner in Hill conceded that other methods of lethal injection the Department
could choose to use would be constitutional, and alleged that the challenged
6

procedure presents a risk of pain the State can avoid while still being able to
enforce the sentence ordering a lethal injection. Id. The Court pointed out that the

Zink prisoners included no such allegations in their complaint. Id.

Appellants thereafter amended their complaint to include the language from

Hill. ECF Doc. 338 at 148; App.187a . They also asserted nine additional claims,
including a claim that the States obstructive tactics inhibited plaintiffs due process
rights. The district court dismissed all claims in two orders. The first order
dismissed all claims other than the one under the Eighth Amendment. ECF Doc.
437, App. 1a. As to the due process claim, the court ruled that the Defendants had
not violated due process because they had not made it impossible for plaintiffs to
file the lawsuit. Id. at 18; App. 18a. As to the Eighth Amendment claim, the court
ruled that the prisoners showed a sufficient risk of harm to proceed, but that the
prisoners could not prosecute an Eighth Amendment claim without pleading a
specific alternative method of execution that is reasonably available and less
likely to create a substantial risk of harm. Id at 8-10; App. 8a-10a. The court
deferred its ruling on the claim in order to allow the prisoners to plead a specific
alternative, which they declined to do. Id.. They explained that Baze does not
require a prisoner to specifically plead an alternative method, that the complaints
language from Hill made their claim sufficient under Lombardi II, and that they
could not specify a feasible and readily implemented alternative under Baze
without discovery of the Departments attempts to obtain other lethal injection
drugs. ECF Doc. 442. The district court then dismissed the Eighth Amendment
7

claim and issued its final order and judgment on May 16, 2014. ECF Doc. 443, App.
25a. Plaintiffs filed a timely notice of appeal and an accelerated briefing schedule
was subsequently issued in Eighth Circuit Case No. 14-2220. Hearing en banc was
scheduled for September 8, 2014.
In early September, it became clear that in addition to administering
pentobarbital, the MDOC had also been administering, intravenously, 3-15 times a
normal dose of the sedative midazolam while the prisoner was strapped to a gurney
and prior to opening the curtain and beginning the execution. See Zink v.

Lombardi, Case No. 14-2220, Motion to Supplement Record, Filed September 24,
2014, App. 369a. In many cases, this occurred prior to the time that the execution
warrant was in effect. Id., Supplemental Appendix, App. 375a -388a. MDOC
administered this drug despite repeated claims in court pleadings and discovery
documents that Missouri did not use midazolam as part of executions. See e.g. Zink

v. Lombardi, Case No. 14-2220, Response in Opposition to John Winfields Motion

for Stay of Execution, Filed 6/06/2014 (asserting that Missouri was distinguishable
from states that had issues with botched executions, because, among other things,
they did not use the same execution drugs). The prisoners advised the court of
appeals of this issue prior to argument, and later moved to supplement the record
on appeal with this information. Case No. 14-2220, Supplemental Record, Filed
9/24/2014, App. 369a. The Court of Appeals denied this request on November 14th.
Though oral argument in this case was held on September 8, 2014, no decision has
yet been issued by the Court of Appeals. Mr. Taylor is scheduled for execution at
8

12:01 a.m. tomorrow, November 19, 2014. He seeks that this Court grant certiorari
prior to the issuance of judgment by the Court of Appeals.
REASONS FOR GRANTING THE WRIT
I.

THE ISSUE OF EIGHTH AMENDMENT PLEADING REQUIREMENTS

IN METHOD OF EXECUTION CHALLENGES IS A QUESTION OF
GREAT IMPORTANCE THAT REQUIRES CLARIFICATION BY THIS
COURT.
A. There is confusion and disagreement among the circuits as to
what must be pled in order to state a viable Eighth Amendment
claim involving method of execution.
The rulings of circuit courts reflect a significant lack of clarity as to the

question of pleading standards for an Eighth Amendment challenge to a method of

execution. The court in Cooey v. Strickland, 589 F.3d 210 (6th Cir. 2009), read the
language of Baze v. Rees, 553 U.S. 35, 51 (2008), that, [A] condemned prisoner
cannot successfully challenge a State's method of execution merely by showing a
slightly or marginally safer alternative to mean that, an inmate cannot question a
state's execution protocol without providing feasible, readily implemented
alternatives that significantly reduce a substantial risk of severe pain. Cooey, 589
F.3d at 220. In Cooey, the plaintiffs had plead an alternative protocol, but the court
determined that because it was not feasible, readily implemented and did not, in
fact significantly reduce a substantial risk of severe pain, it did not meet the

standards set by Baze, and the plaintiff had not proven his Eighth Amendment
claim 1.
In Clemons v. Crawford, 585 F.3d 1119 (8th Cir. 2009), the court addressed
the sufficiency of pleadings under the motion to dismiss standard. The opinion,
which cited Baze as defining the standards, did not read Baze to require plaintiffs
to plead an alternative method of execution. See also Nooner v. Norris, 594 F.3d 592
(8th Cir. 2010). Similarly, the Ninth Circuit opinions in Cook v. Brewer, 637 F.3d
1002 (9th Cir. 2011), and Cook v. Brewer, 649 F.3d 915 (9th Cir. 2011), have not
interpreted Baze to mean that the allegation of an alternative method of execution
is required.
The Eleventh Circuits view of the issue is at best confusing. In Valle v.

Singer, 655 F.3d 1223 (11th Cir. 2011), that court indicated that the Baze standard
precluded relief where the plaintiff had not established a substantial risk of serious
harm exists or that the risk is substantial when compared to the known and
available alternatives. Id. at 1237. The court went on to find that the plaintiff had
done neither, but did not specify whether only one or both standards were required.
Similarly in Chavez v. Florida SP Warden, 742 F.3d 1267 (11th Cir. 2014), the
Eleventh Circuit cited Baze for the proposition that allegation of an alternative
method was required, but went on to emphasize that under Baze, only the standard
of substantial risk of serious harm is a threshold requirement. Id. at 1272. The
Aside from the instant case, petitioner has found no other case where a motion to
dismiss was granted based on a failure to specifically plead an alternative method
10

court went on to analyze only whether there was a substantial likelihood of success
on the merits on the question of whether there was a substantial risk of serious
harm, and found that a stay of execution was not warranted because the facts
presented did not indicate a substantial likelihood of success on the merits. Id. at
1273. Despite a clear indication in the statement of facts that Mr. Chavez had failed
to establish a reasonably available alternative either in his pleadings or through his
presentations in an evidentiary hearing (Id. at 1270), this fact played no role in the
courts ultimate decision or conclusion that there was not a substantial likelihood of
success on the merits. The Eleventh Circuits position on the issue of whether an
alternative method must be pled is therefore still highly in flux.
The Fifth Circuits view is similarly in flux. In Raby v. Livingston, 600 F.3d
552, 560-561 (5th Cir. 2010), while the Court seems to have taken the position that
the test under Baze requires an assessment of the risk of pain when compared with
other known, available alternatives, it did not analyze whether the existence of
available alternatives must be specifically alleged or proven. Rather, the court
found, as in Chavez, that the plaintiffs had failed to demonstrate that Texass
chosen protocol create[d] a demonstrated risk of severe pain. Id. at 560.
The case that seems to most closely track this Courts decision in Baze is the
Fourth Circuits decision in Emmett v. Johnson, 532 F.3d 291 (4th Cir. 2008). In that
case, as in Baze, the Virginia plaintiff had proposed certain alternatives and
modifications to the current protocol in an attempt to prove that the chosen

in the complaint alleging an Eighth Amendment

violation.
11

execution method created an unnecessary risk of harm. In defining the standard set
out in Baze for a viable Eighth Amendment claim, the Fourth Circuit did not state
that it was necessary that plaintiffs plead an alternative execution methodology:
Under the Baze standard, however, the relevant question is whether
Emmett has produced evidence sufficient to meet his heavy burden,
id. at 1533 (internal quotation marks omitted), of demonstrating that
Virginia's existing protocol presents a substantial or objectively
intolerable risk of serious harm to Emmett, id. at 1531 (internal
quotation marks omitted). Emmett must point to evidence
demonstrating that the conditions presenting the risk must be sure or
very likely to cause serious illness and needless suffering, and give rise
to sufficiently imminent dangers. Id. at 153031 (internal quotation
marks omitted).
Later in the opinion however, the Court analyzed the alternative
methodologies proposed by the plaintiffs. Citing language in Baze, the Court
stated:
Emmett cannot successfully challenge Virginias method of execution
merely by showing a slightly or marginally safer alternative. Id. at
1531. Rather, he is required to demonstrate that the alternative
procedure is feasible, readily implemented, and in fact significantly
reduce[s] a substantial risk of severe pain.
The court then went on to find that the alternatives actually proposed by
Emmett did not substantially reduce the risk of severe pain and were not readily
available, and therefore it could not be said, based on the States failure to adopt the
proposed alternative method, that the risk of harm was unreasonable or objectively
intolerable. Id.
12

The Fourth Circuits opinion makes clear the differing opinions in the circuits
regarding this courts language in Baze regarding the need for a feasible alternative
protocol. The Fourth Circuit seems to be looking at the alternative protocol in for its
evidentiary value in determining whether the risk of pain utilizing the proposed
protocol is substantial or objectively intolerable. This reading of Baze suggests
that it is not necessary to assert an alternative protocol in order to make an Eighth
Amendment Claim, but that if one does choose to assert an alternative protocol, it is
not enough that the alternative is marginally safer, if one seeks to use the
alternative to establish that the risk associated with the chosen protocol is
intolerable. Rather, for an alternative protocol to establish that the chosen
protocol is unacceptable, the complainant must establish that the alternative is
feasible, readily implemented, and significantly reduce a substantial risk of severe
pain. If a claimant does not do that, then the existence of an alternative protocol
does not establish that the risk of pain of the adopted protocol is unacceptable under
the Eighth Amendment. This would appear to be in accord with the Third Circuits
view as well. See Jackson v. Danberg, 594 F.3d 210, 229 (3rd Cir. 2010) (Baze
explained that an inmate seeking to establish an Eighth Amendment violation

based on the existence of an alternative must prove that the alternative is feasible,
readily implemented, and in fact significantly reduce[s] a substantial risk of severe
pain.) (Emphasis added.) This would also seem to comport with the Eighth and
Ninth Circuit post-Baze decisions in Clemmons, Noonan, Cook and Cook, where no
alternative was proposed, and the courts did not read Baze to require that one must
13

be. As established above, the Sixth Circuit and the Eighth circuit in Lombardi
disagreed. Other circuits have taken varying views on the issue, but do not appear
to have established clear rules.
The alternative interpretations of Baze are significant, as they set very
different standards throughout the country for asserting and pleading Eighth
Amendment claims. This Court should grant certiorari in order to fully and clearly
resolve this issue.
B. This court should grant certiorari because the district courts
opinion and currently prevailing Eighth Circuit precedent is in
conflict with this Courts decisions in Baze v. Rees, 553 U.S. 35
(2008); Jones v. Bock, 549 U.S. 199, 213 (2007), Hill v.
McDonough, 547 U.S. 573 (2006) and Johnson v. City of Shelby,
Mississippi, , No. 13-1318, 2014 WL 5798626 (U.S. Nov. 10,
2014).
The district courts holding misreads Baze v. Rees, 553 U.S. 35 (2008). In

Jones v. Bock, 549 U.S. 199, 213 (2007), this Court held,
In Hill v. McDonough, 547 U.S. 573 (2006), we unanimously rejected a
proposal that 1983 suits challenging a method of execution must
identify an acceptable alternative: Specific pleading requirements are
mandated by the Federal Rules of Civil Procedure, and not, as a general
rule, through case-by-case determinations of the federal courts Id., at
582).
But Baze did not distinguish, or even cite, Jones or Hill. The Court in Baze
was confronted with the specific claim that Kentuckys execution protocol violated
the Eighth Amendment because the state could easily change to a one-barbiturate
method or at least discontinue the use of the paralytic agent pancuronium bromide.
14

Id. at 56-57. That specific claim required the prisoner to show that the proposed
alternative was feasible, available, and likely to reduce a significant risk of pain. Id.
at 52, 61. The Baze opinion simply addressed the claim before this Court. It did not
erect a new standard for pleading or proving every Eighth Amendment claim
relating to manner of execution. In order to do so, it would have had to overrule

Jones and Hill. It did not.

There is a presumption that this Court does not overrule previous precedent

sub silentio. Shalala v. Illinois Council on Long Term Care, Inc., 529 U.S. 1, (2000)
(This Court does not normally overturn, or so dramatically limit, earlier authority

sub silentio.); Agostini v. Felton, 521 U.S. 203, 237 (1997); Quijas v. Shearson/Am.
Express, Inc., 490 U.S. 477, 484 (1989) (If a precedent of this Court has direct
application in a case, yet appears to rest on reasons rejected in some other line of
decisions, the Court of Appeals should follow the case which directly controls,
leaving to this Court the prerogative of overruling its own decisions.)
Petitioners complaint is materially different than that in Baze. Their claim is
that the Missouri execution protocol violates the Eighth Amendment because it
creates a substantial risk of serious harm, an objectively intolerable risk of harm
that prevents prison officials from pleading that they were subjectively blameless
for purposes of the Eighth Amendment, because of the states use of unreliable and
illegal drugs, not because of the states failure to use an alternative method. Baze
simply did not hold that the only way to demonstrate a substantial risk of serious
harm is to show that there is an available alternative. That was one argument
15

advanced by the Kentucky plaintiffs, but it was not held to be dispositive, because
the Court approved the existing Kentucky protocol.
In its order denying rehearing in Lombardi II, 741 F.3d 903; App. 366a, the
Eighth Circuit implicitly conceded that Hill v. McDonough, 547 U.S. 573 (2006), is
still good law, but attempted to distinguish Hill by noting that in that case, the
petitioner had stated that the challenged procedure presents a risk of pain the
State can avoid while still being able to enforce the sentence ordering a lethal
injection. Id., at 905; App. 368a. Petitioners pleadings never suggested that the
State cannot constitutionally use lethal injection to execute them. Their prayer for
relief in each of their complaints requests a declaratory judgment that the lethal
injection protocol issued by respondents violates their constitutional rights, and an
injunction against the use of that protocol. Like the petitioners in Hill and for that
matter in Baze, petitioners here have never denied that the state can use lethal
injection to execute them. The Eighth Circuits attempt to circumvent the clear
language of Hill is a distinction without a difference.
In an attempt to avoid the conclusion that the Eighth Circuits order on
rehearing in Lombardi II eliminated the requirement of a specific alternative, the
U.S. District courts order dismissing the case pointed to this Courts decision in

Ashcroft v. Iqbal, 556 U.S. 662 (2009). The district court reasoned that Iqbal
requires the prisoner to specify a reasonably available alternative that is less likely
to create a substantial risk of harm, and that the Hill language is a mere naked
assertion that does not create a plausible claim for relief.
16

Any suggestion that this is true is eliminated by this Courts recent per

curiam decision in Johnson v. City of Shelby, Mississippi, S. Ct. , No. 13-1318,

2014 WL 5798626 (U.S. Nov. 10, 2014). There, this Court emphasized that a
complaint may not be dismissed for failure imperfectly to state a legal theory as
long as its factual basis makes the substance of the claim clear and reiterated that
the Federal Rules of Civil Procedure are designed to discourage battles over mere
form of statement. (Citing Advisory Committee Report of October, 1955, reprinted
in 12A C. Wright, A. Miller, M. Kane, R. Marcus, and A.Steinman, Federal Practice
and Procedure, p. 644 (2014 ed.)). Federal pleading rules call for a short and plain
statement of the claim showing that the pleader is entitled to relief, . . . they do not
countenance dismissal of a complaint for imperfect statement of the legal theory
supporting the claim asserted. Id. (citing Fed. Rule Civ. Proc. 8(a)(2)). This
Courts summary reversal in Johnson clearly indicates that that pleading standard
adopted by the district court is incorrect. Plaintiffs second amended complaint
conceded that other constitutional methods of execution exist. Under Johnson, any
failure to further specify can be considered at most nothing more than, an
imperfect statement of the legal theory supporting the claim asserted and does not
merit dismissal. As the district court itself acknowledged, plaintiffs had sufficiently
pled an Eighth Amendment claim with regard to the risk and level of pain that the
current execution protocol carries. Johnson establishes that the Eighth Amendment
claim was sufficiently pled, and should have survived dismissal.
17

The effect of the Eighth Circuits erroneous construction of Baze is to deny

petitioners discovery in their civil suit. As the dissenting judge in Lombardi I
observed,
The challenge of proposing a readily available alternative method
seems nearly impossible if the prisoners are denied discovery and, thus,
unable to ascertain even basic information about the current protocol.
The proposition that a plaintiff must propose an alternative method for
his own execution in order to state a claim for relief under the Eighth
Amendment is unreasonable.
741 F.3d at 900, App. 363a, Bye, J., dissenting.
Effectively, then, the Eighth Circuits construction in In re: Lombardi
overrules Baze itself, and the district courts order upholds this. If a plaintiff, before
conducting discovery, must allege an available alternative to the current protocol,
then it will in effect be impossible to prosecute an Eighth Amendment claim against
any method of execution. Since Baze (as well as Hill v. McDonough, 547 U.S. 573
(2006)) recognized that such a claim is permissible under 1983, the Eighth
Circuits reading is contrary to this Courts opinions in both cases.
The ruling of the district court makes the Eighth Amendment all but
inoperable in lethal injection cases:
The pleading standard advanced by the majority would require the
prisoners to identify for the Director a readily available alternative
method . . . for their own executions. Now, any individual wishing to
challenge a states execution method as unconstitutional must identify
a readily available alternative method for their own deaths before any
discovery has been conducted to survive a Rule 12(b)(6) motion to
dismiss. The challenge of proposing a readily available alternative
method seems nearly impossible if the prisoners are denied discovery
and, thus, unable to ascertain even basic information about the current
protocol.
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Id. at 900; App. 363a (Bye, J., dissenting).

The ruling below cries out for review and reversal by the Supreme Court
before another court in another state adopts the dubious reasoning applied by the
majority here. Andrew Cohen, The Secrecy Behind the Drugs Used to Carry Out
the Death Penalty, THE ATLANTIC, Jan. 26, 2014.
This Court should grant certiorari in order to resolve the question of what the
pleading standards for an Eighth Amendment method of execution claim are
pursuant to Baze and the Federal Rules of Civil Procedure. Further delay will only
result in the deaths of more plaintiffs before they have an opportunity to litigate
their constitutional claims.

II.

THIS COURT SHOULD GRANT CERTIORARI AS TO THE DUE

PROCESS ISSUE BECAUSE THE CONDUCT OF STATE ACTORS
WHICH WAS UPHELD BY THE DISTRICT COURT AND HAS BEEN
SANCTIONED BY THE EIGHTH CIRCUITS RECENT RULINGS IS SO
EGREGIOUS AS TO REQUIRE THE EXERCISE OF THIS COURTS
SUPERVISORY POWER.
In the Courts below, respondents minimized their own obstructionist conduct,

and argued essentially that they have done nothing to make it physically impossible
for the plaintiffs to file a lawsuit, and therefore have committed no due process
violations. Zink v. Lombardi, Case No. 14-2220, Respondents Brief at 42, filed
8//27/2014 (hereinafter, Response Brief), App. 616a. The district court sanctioned
this approach, finding that the existence of the lawsuit that raised the claims before
19

the court was proof of the fact that it was possible to file a lawsuit and that there
was therefore no due process violation under Lewis v. Casey, 518 U.S. 343, 356
(1996). ECF Doc. 437 at 17; App. 17a. The Eighth Circuit has also repeatedly
approved of this misconduct, denying motions for stays of executions despite being
presented repeatedly with information regarding these issues. Most recently, the
Eighth Circuit denied a motion filed by plaintiffs to supplement the record with
further evidence of defendants misconduct, despite significant discussion of the
issue at oral argument before the en banc court. See Zink v. Lombardi, Case No. 142220, Order issued on November 14, 2014, App. 388.
However, defendants egregious conduct has consisted of far more than
modifying execution procedures in a manner [that] . . . made it more difficult to
attack the procedures. Response Brief at 42, App. 664a. Nor does it constitute
merely a failure to, take affirmative steps to enable a prisoner to discover
grievances or litigate effectively once in court. Id. (citing Casey, 518 U.S. at 354).
Rather, defendants have repeatedly and continuously taken affirmative and
proactive steps to obstruct pursuance of this lawsuit and to hide, conceal, and
affirmatively mislead defendants regarding the facts of the protocol and processes
surrounding executions, in a manner that is clearly violative of due process.
Plaintiffs first began documenting these violations in a motion for sanctions
filed in the district court on December 10, 2013. App. 389a. In that motion,
plaintiffs outlined the series of violations of discovery rules and court orders
regarding discovery that Defendants had carried out in an effort to avoid their
20

discovery responsibilities and delay the lawsuit continuously. In May of the next
year, Defendants attorney, Attorney General Chris Koster, made a public
statement criticizing the courts for the unnecessary delay in the lawsuit that had
been caused by his own office, and threatening to bring back the gas chamber if
executions did not resume soon. Shortly thereafter, the Missouri Supreme Court set
execution dates on two plaintiffs, Alan Nicklasson and Joseph Franklin. These
executions were carried out, but not before a number of new iterations in the
execution protocol. In an initial order granting a motion for a stay of execution, the
Judge then presiding over the case, the Honorable Nanette Laughrey, lamented the
impossible position the state had put the plaintiffs in throughout the litigation in
terms of their ability to raise claims in sufficient time to merit relief:
Plaintiffs were afforded no opportunity to inspect the qualifications of
this compound pharmacy. Defendants cannot repeatedly change the
execution protocol, including within five days of a scheduled execution,
and rely on Plaintiffs lack of time to research the protocols effects . . . .
Defendants also suggest that because the Supreme Court has never
found that any execution protocol violates the U.S. Constitution, this
Court should not grant a stay here. But absent some directive from a
higher court that these execution protocol claims are frivolous and
need not be decided on their merits, the Court will continue to follow
procedures in place for handling all litigation in the federal courts,
which cannot be done efficiently if the Department keeps changing how
they plan to execute the Plaintiffs. Finally, litigation is not a game of
chess. Hill was intended to be a shield to protect defendants from
abusive litigation practices by death row inmates. But it was never
intended to be used as a sword permitting defendants to disrupt and
delay the litigation process and then complain that time is up. Neither
the Plaintiffs nor the Court have been able to address the merits of
Plaintiffs' claim that the Defendants have adopted an execution
protocol that violates the U.S. Constitution, because the Defendants
keep changing the protocol that they intend to use. It would be a
substantial departure from the way in which law suits are generally
21

handled by this Court, to allow Defendants to succeed with this

strategy. Rather, the pending dispute between the parties should be
resolved on the merits after a reasonable opportunity for both sides to
be heard, followed by a prompt, final order resolving the dispute. That
is how it is normally done in America and it is a system that has
worked quite well.
ECF Doc. 163 at 10 -12; App. 35a 37a .
The State continued to resist all legitimate efforts in court to determine
information about the execution drugs, their supplier, or the qualifications of the
party supplying them. As Judge Kermit Bye (joined by Judges Kelly and Murphy)
pointed out in a dissenting opinion on a stay motion, just after the defendants had
changed the supplier of the execution drugs on the eve of Taylors execution:
But Taylor is in an obviously disadvantaged position because Missouri
has, perhaps drastically, changed how Taylor will be executed by
substituting any number of new components and actors within the last
week. Missouri is unable to execute death row inmates with an FDAapproved form of injectable pentobarbital and thus uses compounding
pharmacies to replicate the drug. Yet, with only one week before
Taylor's scheduled execution, Missouri has changed compounding
pharmacies. . . . One must wonder at the skills of the compounding
pharmacist. In fact, from the absolute dearth of information Missouri
has disclosed to this court, the "pharmacy" on which Missouri relies
could be nothing more than a high school chemistry class. Even if
Missouri had provided basic guarantees of a regulated lab and licensed
pharmacists, the skill-level and experience in compounding of the
pharmacist in question is vital to ensuring Taylor is executed in a way
which comports with the Eighth Amendment. Missouri has no qualms
announcing a new pharmacy will provide the alleged pentobarbital, yet
that pharmacy and its pharmacists presumably have no experience
compounding injectable pentobarbital for executions. . . . Missouri has
yet to provide information on the source of any drugs to be used to
execute Taylor, leaving open the possibilities the ingredients do not
meet legal or medical standards. . . . Because Missouri has again
changed its procedure for executions, even the most well-trained and
well-intentioned pharmacist may be unable to properly test
compounded pentobarbital in such a short amount of time. Missouri is
22

actively seeking to avoid adequate testing of the alleged pentobarbital,

which raises substantial questions about the drug's safety and
effectiveness. Although there were concerns with previous laboratory
testing, at least some laboratory testing was conducted. Now, Missouri
has provided no indication any testing of the new product has occurred.

Zink v. Lombardi, No: 14-1403 at 2-3 (8th Cir. 2/25/2014)(Bye, dissenting), App. 442a
443a.
Since Micheal Taylors execution, the State has continued to withhold any
information about lab testing, source or supply, or the safety and effectiveness of
the drugs being used. Approximately, two months after Taylors execution, Eighth
Circuit Judges Bye, Murphy, and Kelly again lamented:
Missouri continues to frustrate the efforts of inmates . . . to investigate
the method of execution the State plans to use to end their lives.
Missouri shields these shadow pharmacies - and itself- behind the
hangman's cloak by refusing to disclose pertinent information to the
inmates. This Court is largely left to speculate as to the source and
quality of the compounded pentobarbital - or whatever chemical
cocktail du jour Missouri elects to serve this time around.

Taylor v. Lombardi, No. 14-1919 at 2(8th Cir. 4/22/2014 (Bye, dissenting),

App. 446a. In the same dissenting opinion, Judge Bye noted, rise of
questions regarding drug efficacy and secrecy in other States outside our
Circuit, including Georgia, Ohio, Oklahoma, Louisiana, and Texas. Id.
Following botched executions in Ohio, Oklahoma, and Arizona, the issues in
these other states came to light in arguments that the botched executions counseled
caution in continuing to proceed Missouri. In response to these arguments, the
State, in pleadings filed in the Eighth Circuit and in this Court argued that these
executions bore no relevance to what was occurring in Missouri because they did not
23

entail use of the same drugs or other personnel as was being used in Missouri. See

e.g. Zink v. Lombardi, Case No. 14-2220, Response in Opposition to John Winfields
Motion for Stay of Execution, Filed 6/06/2014 (asserting that comparisons could not
be made between Missouri and the botched executions in other states, because,
among other things, Missouri used different drugs).
However, as became clear in September, this statement misrepresented the
states execution practice. At that time, it was revealed that Missouri had been
injecting much higher than normal dosages of midazolam intravenously while
prisoners were strapped to the gurney and without their consent prior to the
curtains being open and to the time the execution was actually said to begin. See
App. 375a.
The statements made by the Attorney Generals office in pleadings
concerning the use of the drug midazolam were not the only statements aimed at
intentionally misleading plaintiffs and the courts as to Missouris execution
protocol. The intravenous use of midazolam contradicts the sworn testimony of Mr.
George Lombardi, the head of the DOC. In January of this year, he testified about
the DOCs use of midazolam. At one point, he flatly testified that DOC does not use
midazolam: Q. Why will there be no use of [midazolam] in an execution? A.
Because we have no intention to do that . . . Im testifying right now to tell you that
will not be the case. We will not use those drugs. Deposition of George Lombardi,
taken 1/17/2014 at 21; App. 468a. Elsewhere, he had testified that midazolam would
24

be offered to an inmate, usually a few hours before the scheduled execution. Id.
at 53; App. 500a. Mr. Lombardis testimony was, at best, highly misleading.
While the Attorney Generals office alleged that the drug, administered
intravenously in dosages that were 3 15 times the normal dosage amount, was
simply a pre-execution sedative, it is clear that this is no justification. Rather these
most recent actions misleading plaintiffs and hiding the truth are part of what
Judge Bye has called a troubling pattern that encompasses a blatant disregard
for a federal courts responsibility to review the constitutionality of an execution.

Worthington v. Lombardi, No.14-2220 at 2 (8th Cir. 8/1/2014)(Bye, dissenting), App.

534a. This Court should grant certiorari as to this question because the conduct of
the state in actively obstructing plaintiffs attempts to discover and present
legitimate claims to this court, and the Eighth Circuits repeated approval of that
action requires exercise of the supervisory power of this Court. Moreover, it is
necessary for this court to further clarify that the limits of due process protections
placed by Lewis v. Casey, 518 U.S. 343, 356 (1996), do not give state actors a blank
check to obstruct a prisoners legitimate efforts to investigate and seek redress in
the courts for violations of their constitutional rights.
III.

This Court should grant certiorari at this time because the case is of
imperative public importance and requires immediate determination by
this Court.

Cases pending in in the United States Courts of Appeals may be reviewed,

[b]y writ of certiorari granted upon the petition of any party to any civil or criminal
25

case, before or after rendition of judgment or decree. 28 U.S.C. 1254a. (emphasis

added). Supreme Court Rule 11 provides that such a petition will be granted only
upon a showing, that the case is of such imperative public importance as to justify
deviation from normal appellate practice and to require immediate determination in
this Court.
Since November of last year, the State of Missouri has been scheduling
executions at a rate of one execution per month, and has carried them out in all but
two cases, those of Mark Christeson and Russell Bucklew, both of which this Court
halted. The state has executed ten prisoners since November of 2014. With the case
still pending in the Eighth Circuit, these issues are coming before this Court once
per month. It is important that this Court speak on this issue so as to give guidance
to inmates and litigants.
Moreover, this issue affects inmates in multiple states. Litigation attacking
state methods of execution is pending in Alabama, Arizona, Arkansas, Florida,
Kentucky, Louisiana, Ohio, Oklahoma, and Tennessee in addition to Missouri. 2
According to current information from the Death Penalty Information Center, there
are a total of 1,191 death-sentenced prisoners in these ten states. The problem is of
great concern and importance.
Moreover, the lack of clarity in the courts as to Eighth Amendment pleading
standards and what limits due process places on state actors rights to hide
information about methods of executions that is highly relevant to Eighth
26

Amendment claims has led to the courts failure to intervene and stop or prevent a
number of horribly botched executions that both shocked the conscience of the
country and were in clear violation of the condemned persons Eighth Amendment
rights. While these botched executions have led to self-imposed temporary
moratoriums in some states, others, like Missouri, continue to carry out executions
in a manner that is cloaked and secrecy and inconsistent with both the prisoners
due process rights and the level of transparency in government that is both
necessary to and expected of this countrys democratic processes.
In Missouri, it is clear that MDOC officials have been injecting inmates with
a very high dose of a sedative intravenously prior to ever opening the curtain to
witnesses, and that MDOC officials have made the decision to increase the dose
where the drug was not having the desired effect. This disturbing phenomenon
illustrates one of the most basic affronts to our Constitutional system that the
courts responsible for what is one of the states most solemn and serious actions are
not permitted to know what the state is doing.
The Eighth Circuit initially accelerated this case, providing for an
abbreviated briefing schedule and for initial en banc argument. But over two
months have now elapsed since that argument, and no decision has issued. During
the pendency of this appeal, three prisoners have been executed in Missouri, and
Mr. Taylor is scheduled for execution on November 19 at 12:01 a.m.
2

A list of these cases can be found at App. 538a.

27

The unique procedural posture of this case also makes the grant of certiorari
appropriate at this time. In In re: Lombardi, the same parties (less those who have
now been executed) were before the Eighth Circuit on an writ filed by the state, and
the Eighth Circuit then decided the Baze issue currently before this Court. The
repeated denials of stays of executions since that time without opinion make clear
that the Eighth Circuit does not soon intend to change course on this issue.
Meanwhile, Missouri and other states continue to kill at a rapid pace under
an Eighth Amendment structure that is plagued with confusion and inconsistent
applications across the country. These are issues that must be resolved NOW. As
Judge Bye stated today in his dissent from the denial of a stay of execution:
Given the record evidence regarding the substantial risk of severe pain
and suffering caused by using "unregulated, unpredictable and
potentially unsafe drugs," and what is at stake for Taylor, Missouri
should answer the questions surrounding its mystery compound, or at
the very least afford Taylor the opportunity to obtain such answers for
himself by testing the intended compound, before Missouri executes
him. Any constitutional infirmities in Missouri's secretive protocol
revealed after Taylor's execution will provide no relief to him or others
already executed.

Zink v. Lombardi, Case No. 14-2220 at 4 (8th Cir. Nov. 18, 2014); App. 707a.
The issues are fully developed and ripe for decision, and certiorari should be
granted at this time.

28

CONCLUSION
The petition for writ of certiorari should be granted.
Respectfully submitted,

ELIZABETH UNGER CARLYLE

(Counsel of Record)
6320 Brookside Plaza #516
Kansas City, Missouri 64113
(816) 525-6540

KATHRYN B. PARISH
SINDEL SINDEL & NOBLE, P.C.
8000 Maryland Ave., Suite 350
Clayton, Missouri 63105
(314) 721-6040
Counsel for Petitioners

29