IN THE SUPREME COURT OF THE UNITED STATES

DAVID ZINK, et al., )

)
EARL RINGO )
)
Plaintiffs-Appellants, )
)
v. ) No. 14A-266
)
GEORGE A. LOMBARDI, et al., )
)
Defendants-Appellees. )

SUGGESTIONS IN OPPOSITION TO PLAINTIFF
EARL RINGOS MOTION FOR STAY OF EXECUTION
I. This Court should analyze the stay application under the Hill v.
McDonough standard.
In Hill v. McDonough, 547 U.S. 573 (2006), this Court held that a
pending lawsuit does not entitle a condemned inmate to a stay of
execution as a matter of course, and that the State and crime victims
have an important interest in the timely execution of a death sentence.
Id. at 583-84. This Court held stay applicants seeking a stay based on a
suit challenging the manner in which the State plans to execute them
must meet all the elements of a stay, including showing a significant
possibility of success on the merits. Id. at 584. This Court cited Mazurek
v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam), for the proposition
that a preliminary injunction [is] not granted unless the movant, by a
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clear showing, carries the burden of persuasion. Hill, 547 U.S. at 584.
Ringo does not carry that burden.
II. Ringos Eighth Amendment claim does not entitle him to a stay
and this has not changed because inmates have always received
a pre-execution sedative to calm them before executions.
Ringo alleges his execution using pentobarbital will violate the
Eighth Amendment ban on cruel and unusual punishment. A three
judge plurality in Baze held that for a risk of harm from execution to
violate the Eighth Amendment 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. Baze v. Rees, 535 U.S. 35, 50
(2008) (internal quotations omitted, emphasis in the Baze decision). A
majority of this Court recently relied on the sure or very likely to cause
serious illness and needless suffering standard in rejecting an
application to vacate a stay of execution. Brewer v. Landrigan, 131 S.
Ct. 445 (2010). Therefore, in order to survive a motion to dismiss, the
plaintiffs must at least present a plausible claim that Missouri
execution procedures are sure or very likely to cause serious illness and
needless suffering, and give rise to sufficiently imminent dangers. The
standard for surviving a motion to dismiss is easier for a plaintiff to
meet than the significant possibility of success on the merits of the
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claim standard evaluated as one of the four factors a plaintiff must
prove for a stay under Hill.
The test, set out by the three judge plurality in Baze, not only
requires that the alleged suffering be sure or very likely to occur, but
also that the risk of potential suffering be needless. The plurality held
[s]ome risk of pain is inherent in any means of executionno matter
how humaneif only from the prospect of error in following the
procedure. It is clear then the Constitution does not demand the
avoidance of all risk of pain in carrying out executions. Baze, 553 U.S.
at 44. In addressing the requirement that the sure or very likely
suffering also be needless, the plurality indicated such suffering was
needless if the State, without a legitimate penological justification
refused to adopt a feasible, readily implemented alternative, which
substantially reduces a risk of severe pain. Id. at 52.
Ringo fails both prongs of the Baze test. Missouri carried out nine
executions using pentobarbital in nine months, and no observer has
seen anything inconsistent with those executions all being rapid and
painless. (Def. Ex. 1, statements from nearly 200 witnesses over nine
executions supporting the position that all Missouri executions using
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pentobarbital have been rapid and painless). It is implausible to allege
Missouris use of pentobarbital in executions is sure or very likely to
cause serious illness and needless suffering when, time-after-time, that
has not happened. The United States Court of Appeals sitting en banc
has held that [w]ithout plausible allegations of a feasible and more
humane alternative method of execution, or purposeful design by the
State to inflict unnecessary pain, the plaintiffs have not stated an
Eighth Amendment claim. In re Lombardi, 741 F.3d 888, 896 (8th
Cir. 2014) (en banc), cert. denied, sub nom. Zink v. Lombardi, No. 13-
8435 (Apr. 7, 2014). Ringo has not alleged a specific plausible
alternative more humane method of execution, and does not allege the
State has purposefully designed its execution method in order to cause
unnecessary pain. Because Missouri executions have all been rapid and
painless, such an allegation would be implausible in any event.
Ringo presents an opinion from an expert asserting various things
could go wrong with Missouri executions, but never have. A speculative
parade of horribles does not satisfy the requirements of a viable Eighth
Amendment claim. The standard for an Eighth Amendment claim is
sure or very likely to cause serious illness and unnecessary pain, and
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Ringo does not make an allegation that has a significant possibility of
success under that standard or even under the lesser standard for
surviving a motion to dismiss. This Court rejected essentially the same
evidence now offered by Ringo as insufficient when vacating the
Franklin stay of execution in November 2013. Nicklasson, Smulls,
Taylor, Ferguson, Rousan, Winfield, and Worthington also presented
the same evidence to this Court found the evidence insufficient.
Plaintiff Middleton did not even seriously pursue an Eighth
Amendment lethal injection claim in his stay litigation, instead
concentrating on issues more specific to his case. Accordingly, Ringo is
not entitled to a different result on the same evidence.
A. Ringo does not comply with In re Lombardi by merely stating
some unspecified more humane method of execution exists.
Ringo alleges that because he is willing to say some unspecified
method of execution that would be constitutional exists, he has
complied with In re Lombardi. That argument is wrong. What Ringo is
really saying is that all he needs to do to meet the test of In re
Lombardi is recite a formula that alleges the Missouri execution
procedure is not the safest procedure that is theoretically possible. That
is not naming a feasible constitutional alternative method of execution
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that would substantially reduce a serious risk of pain, which is what
Baze and In re Lombardi require. The seven plaintiffs executed since
this Courts In re Lombardi decision have had the same argument
available, and nothing relevant changed on this issue after their
executions.
B. The Bucklew stay was based on Bucklews unique health
problems.
Ringo alleges the United States Supreme Courts grant of stay to
Russell Bucklew challenges the legal landscape created by its denial of
stays to other Missouri inmates executed with pentobarbital. It does
not. In his stay application to this Court, Bucklew alleged that his
lawsuit is based on the unique risks to him arising from the unstable,
untreatable vascular tumors-cavernous hemangiomathat fill his head,
neck, and throat, and that his execution with any chemical would
violate the Eighth Amendment. Bucklew did not challenge the use of
pentobarbital to execute a person not suffering from his allegedly
unique condition, and he argued the stress of execution with any drug
could cause him to hemorrhage and suffocate. The Bucklew stay has no
application to Ringo, who is not suffering from cavernous hemangioma.
Rather, the relevant precedents in Ringos case are the stay denials to
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Franklin, Nicklasson, Smulls, Taylor, Ferguson, Rousan, Winfield, and
Worthington who all made the same Eighth Amendment argument
Ringo makes. The Winfield, Middleton, and Worthington executions in
June, July, and August 2014 occurred after the stay of the Bucklew
execution in May. Nothing relevant changed after their executions.
C. The district court did not find Ringo is entitled to a stay of
execution on the first prong of In re Lombardi analysis by
dismissing the Zink litigation based on the second prong.
Ringo argues that the district court order dismissing nine claims
in the Zink litigation, but letting the tenth claim survive for two weeks
before the court ultimately dismissed it in a later order, supports the
argument that he is entitled to a stay of execution. It does not. Ringo is
arguing that because the district court dismissed the Eighth
Amendment claim in the Zink litigation based on the second prong of In
re Lombardi, rather than the first, he is entitled to a stay of execution
because he has a significant possibility of success on the first prong, and
in his view the district court misunderstands the second prong. In order
to survive a motion to dismiss a claim must merely be plausible. Walker
v. Barrett, 650 F.3d 1198, 1203 (8th Cir. 2011). But the claim must have
a significant possibility of success on the merits to be part of the support
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for a stay of execution. Hill, 547 U.S. at 584. This Court vacated
Franklins stay of execution and denied Nicklassons stay motion based
on essentially the same evidence Ringo presents, before In re Lombardi
was decided. The thrust of those decisions was that Franklin and
Nicklasson did not meet what is now the first prong of the In re
Lombardi test. The fact that the district court dismissed the Zink
litigation based on the second prong of the In re Lombardi test does not
change that. Additionally, Winfield, Middleton, and Worthington were
executed in June, July, and August 2014, after the district court
analysis Ringo alleges justifies a stay.
D. Alleged difficulties in Arizona, Ohio, and Oklahoma
executions do not support the stay of a Missouri execution
when Missouri executions using pentobarbital have been
uniformly rapid and painless.
Missouri has carried out nine executions using pentobarbital as
the lethal chemical since November 2013. All those executions have
been rapid and painless. Defendants Exhibit 1 to this pleading contains
nearly 200 witness statements from the nine executions many from
members of the media. None indicate any inmate suffered any
discomfort at all. The witness statements from the most recent
executions, the executions of Middleton and Worthington, indicate that
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within seconds of the injection of the lethal chemical, pentobarbital, a
conscious inmate rapidly fell asleep.
E. Ringos allegation of a conflict interest by counsel does not
change the elements of a viable Eighth Amendment claim.
Ringo argues the pleading requirements for an Eighth
Amendment claim set out in In re Lombardi must be changed because
pleading a viable claim may have consequences that are not to his
advantage, and, therefore, his counsel allegedly has a conflict of interest
that prevents counsel from pleading a viable claim. Specifically, he
alleges if counsel does plead the existence of a viable more humane
method of execution, the State might use it, increasing his chances of
being executed, over a system in which he has the possibility of having
a method of execution condemned with no viable alternative in place.
But it is Ringo who must choose whether to bring an Eighth
Amendment claim challenging the method of execution. He must make
that choice knowing that bringing the suit may have disadvantages as
well as advantages. What Ringo is really saying is that he should be
able to tailor the required elements of a claim so that there are no
potential disadvantages in bringing the claim, because if he cannot,
counsel who represents him in the suit necessarily has a conflict of
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interest. That is not the law. A civil suit challenging the
constitutionality of a method of execution is not a habeas corpus action
seeking to prevent the execution itself. Counsel does not have conflict of
interest because pleading requirements do not allow him to change one
into the other, which is what Ringo is really arguing. Additionally,
Missouri has carried out seven executions since the In re Lombardi
decision. Nothing relevant on this issue has changed since those seven
executions.
F. The fact that Missouri inmates have received pre-
execution sedatives to help them remain calm does not
make Ringos execution violate the Eighth Amendment.

Counsel in this Zink v Lombardi lawsuit challenging Missouris
lethal injection procedures, in which Ringo is a plaintiff, deposed Dave
Dormire, Director of the Division of Adult Institutions, on January 15,
2014 (Def. Ex. 3). Counsel for the plaintiffs asked Director Dormire
about a chemical log showing the use of Versed (midazolam), which had
been previously disclosed to plaintiffs in discovery (Def. Ex. 3 at 88-89).
Director Dormire testified that the Versed may be used as a sedative
either at the inmates request or if determined necessary by the doctor
with the Directors approval (Def. Ex. 3 at 88-89).
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In a separate portion of the deposition, Director Dormire testified
that the Department had purchased midazolam and hydromorphone as
potential lethal chemicals, but had not adopted a protocol for their use
(Def. Ex. 3 at 141-46). He then testified that the Department does not at
this time plan to use hydromorphone and midazolam as lethal
chemicals in executions, and that he believed using those drugs as the
lethal chemicals in executions would require a new protocol (Def. Ex. 3
at 6-7). Nothing has changed.
It is unfair for Ringo to take Director Dormires answers about not
using midazolam and hydromorphone as part of a two-lethal-chemical
execution protocol, which was considered but not adopted by the
Department, and apply those answers to the use of Versed (midazolam)
as a pre-execution sedative. This is particularly true when he discussed
the use of Versed (midazolam) as a pre-execution sedative, in an
entirely different part of the deposition.
Counsel in the Zink v. Lombardi suit deposed George Lombardi,
Director of the Department of Corrections, on January 17, 2014 (Def.
Ex. 4). Counsel questioned Director Lombardi about the chemical logs
from the Nicklasson and Franklin executions, both of which mentioned
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Versed (Def. Ex. 4 at 52). Director Lombardi testified that Versed
(midazolam) is given as a pre-execution sedative, either based on an
inmates request or if the doctor decides it should be used (Def. Ex. 4 at
52-53).
In an entirely different portion of the deposition, counsel asked
Director Lombardi about a draft execution protocol, which was not
adopted, using midazolam and hydromorphone, as a two-lethal-
chemical execution method (Def. Ex. 4 at 20-21). Director Lombardi
testified that Missouri had never carried out an execution with
hydromorphone and midazolam (Def. Ex. 4 at 20). The Director testified
that Missouri would not use midazolam in an execution because the
Department has pentobarbital (Def. Ex. 4 at 21). He specifically stated
we will not use those drugs. (Def. Ex. 4 at 21).
Ringo quotes the portion of Director Lombardis testimony about
not using midazolam and hydromorphone in a two-lethal-chemical
execution protocol and claims it is contradicted by drug logs showing its
use as a pre-execution sedative. Director Lombardi testified that Versed
(midazolam) had been used as a pre-execution sedative in the
Nicklasson and Franklin executions, and that Missouri procedures
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called for its use either at the request of the inmate or the doctor. It is
unfair for Ringo to accuse Director Lombardi of giving inaccurate
testimony based on taking his answers on one subject (an alternative
execution protocol, which was not adopted) out of context and applying
them to questions on another subject (the use of Versed as a pre-
execution sedative), particularly when in another part of the deposition
he clearly explained that Versed (midazolam) has been used as a pre-
execution sedative, and may be so used in the future.
Furthermore, Ringo has long known that valium may be used as a
pre-execution sedative. In fact, he lost a challenge to its use as a pre-
execution sedative on a summary judgment motion in 2011 in Ringo v.
Lombardi (Def. Ex. 6, Order Granting Summary Judgment in Ringo v.
Lombardi, 09-4095, Document 263). The United States District Court
for the Western District of Missouri denied the claim for failing to state
an injury in fact (Def. Ex. 6, Order Granting Summary Judgment in
Ringo v. Lombardi, 09-4095, Document 263).
Also, Ringo has long been aware that Missouri uses lidocaine to
numb the injection site before inserting an intravenous line in lethal
injection cases. The United States District Court for the Western
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District of Missouri dismissed a challenge by Ringo and his co-plaintiffs
to the use of lidocaine in the original complaint in Zink v. Lombardi in
2011, finding they had not shown an injury in fact from their claim
challenging the use of lidocaine to numb the injection site (Def. Ex. 5,
Zink v. Lombardi, Order Granting in Part Motion to Dismiss, Document
31 at 7-9).
Because Ringo has long known that Missouri uses Versed
(midazolam) as a pre-execution sedative, that Missouri uses valium as a
pre-execution sedative, and that Missouri uses lidocaine to avoid
injection-site pain, he has no plausible argument that he is now
surprised by this information. Ringo has taken portions of depositions
out of context, and has strategically decided to classify pre-execution
procedures as, in his view, part of the execution itself in order to create
the appearance of contradiction. But there is no contradiction.
Ringo has also long been aware that Missouri uses Versed and
valium as pre-execution sedatives before executions, at the inmates
request or at the discretion of the anesthesiologist. In addition, he has
also long been aware that Missouri has used lidocaine to numb the
injection site before insertion of the intravenous line, at the discretion of
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the anesthesiologist. Versed, valium, and lidocaine are not used as
lethal chemicals and are not part of the execution itself.
As mentioned above, the district court dismissed Ringos claim
under the standard for failure to state a claim on which relief can be
granted. Further, in granting a writ of mandamus preventing certain
discovery, this Court found the Eighth Amendment claim then
presented was not viable. The claim has not become any more viable
because Ringo now also complains that he may be given pre-execution
sedatives to calm him before his execution, and that he may be given
lidocaine at the injection site so the insertion of an intravenous line
does not cause him discomfort. But, if Ringo were to establish a
demonstrated risk of severe pain, which he has not, and successfully
propose as a feasible alternative constitutional method of execution
foregoing pre-execution sedatives and lidocaine, which he has not, the
proper remedy would be an order to the Department carry out his
execution without the use of pre-execution sedatives, unless Ringo
requests them, not an order to cancel the execution, as Ringo asks.


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III. Ringos failed Due Process Clause, Equal Protection Clause,
and deliberate indifference to medical needs claims do not
become meritorious based on other inmates receipt of a
sedative to help calm them before there executions.
The district court found Ringos Due Process Clause, Equal
Protection Clause, and deliberate indifference to medical needs claims
do not state a plausible claim on which relief can be granted, let alone
reach the higher level of having the significant possibility of success on
the merits required for a stay (Def. Ex. 8). The claims do not become
more viable because inmates have received pre-execution sedatives to
help calm them before executions. If the claims did become viable,
which they do not, the remedy would be for this Court to order the
Department not to give sedatives unless Ringo requests them, not to
cancel his execution.
IV. Conclusion
This Court should deny the motion for a stay of execution.






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Respectfully submitted,
CHRIS KOSTER
Attorney General
/s/Michael J. Spillane
MICHAEL J. SPILLANE
Assistant Attorney General
Counsel of Record
Missouri Bar No. 40704
P.O. Box 899
Jefferson City MO 65102
Phone: 573.751.1307
Fax: 573.751.3825
mike.spillane@ago.mo.gov
ATTORNEYS FOR DEFENDANTS
CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing is emailed
this day, the 9th day of September, and will be mailed, postage prepaid,
the 10th day of September, to this Court and to counsel for Earl Ringo
who are listed below:

John William Simon
Constitutional Advocacy, L.L.C.
7201 Delmar Blvd. Suite 201
St. Louis, MO 63130-4106
(314) 604-6982
simonjw1@yahoo.com

Richard H. Sindel & Kay Parish
Sindel Sindel & Noble, P.C.
8000 Maryland, Suite 350
Clayton, MO 63105
(314) 721-6040
kparish@sindellaw.com
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/s/Michael J. Spillane
MICHAEL J. SPILLANE
Assistant Attorney General