Submitted March 17, 2015
Appeal from United States District Court for the Eastern District of Missouri - St. Louis.
For Cecil Clayton, Plaintiff - Appellant: Elizabeth Unger Carlyle, Kansas City, MO; Susan M. Hunt, LAW OFFICE OF SUSAN M. HUNT, Kansas City, MO.
Cecil Clayton, Plaintiff - Appellant, Pro se, Mineral Point, MO.
For George Lombardi, Troy Steele, Defendants - Appellees: Caroline Coulter, Assistant Attorney General, Michael Joseph Spillane, Assistant Attorney General, ATTORNEY GENERAL'S OFFICE, Jefferson City, MO.
Before LOKEN, BYE, and SMITH, Circuit Judges. BYE, Circuit Judge, dissenting.
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).
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.
" [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). " [I]nmates 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 ...