IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION DAVID ZINK, et al., Plaintiffs, v.

GEORGE LOMBARDI et al., Defendants. ) ) ) ) ) ) ) ) )

No. 12-4209-BP

SUGGESTIONS IN OPPOSITION TO PLAINTIFF TAYLORS MOTION FOR STAY OF EXECUTION I. Missouri intends to execute Taylor using pentobarbital, the chemical used in the rapid and painless executions of Plaintiffs Franklin, Nicklasson, and Smulls. Taylor alleges that a pharmacy he claims has supplied pentobarbital to Missouri for executions in the past has declined to do so for his execution, and he provides a newspaper article as support for that assertion (Document 353 at 1). Taylor then argues that Missouri has no useable pentobarbital for his execution and that therefore Missouri must plan to execute him using midazolam and hydromorphone, which he argues he needs more time to review in light of an Ohio execution using those chemicals that he criticizes (Document 353 at 2-4).

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In fact, Taylor, through counsel, wrote a threatening letter to the pharmacy Taylor alleges provided pentobarbital to Missouri for past executions (Ex. 7). Taylor then sued the pharmacy he alleges has been supplying pentobarbital for Missouri executions for in excess of $75,000 in damages (Ex. 8). In reality, what Taylor has done is sue the pharmacy he alleges supplied the pentobarbital for the Franklin, Nicklasson, and Smulls executions in attempt to stop that pharmacy from providing a chemical that all witness accounts indicate resulted in rapid and painless executions of Franklin, Nicklasson, and Smulls (Ex. 4, 5, and 6 witness statements from the Franklin, Nicklasson, and Smulls executions). Taylor now complains that Missouri will be forced to use the combination of midazolam and hydromorphone in his execution, and that the combination, in his view, did not work well in an Ohio execution. In short, Taylor has tried to force Missouri to use a combination of chemicals he argues is less safe, so that he may complain about it. But Taylor has failed. Defendants do not admit nor deny the pharmacy Taylor threatened, then sued, has supplied pentobarbital to Missouri. However, Missouri has now arranged with a pharmacy, that is not the pharmacy Taylor threatened and sued, to supply pentobarbital for Taylors execution. There is no reason to believe that the execution will not, like previous Missouri executions using pentobarbital, be rapid and painless. 2
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II. Taylor must meet the Hill v. McDonough standard to receive a stay of execution. In Hill v. McDonough, 547 U.S. 573 (2006), the United States Supreme 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 583-4. The 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. The Court cited Mazvrek 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 clear showing, carries the burden of persuasion. Hill, 547 U.S. at 584. Taylor does not carry that burden. III. Taylors Due Process Clause claim fails as a matter of law. Taylor alleges that Missouri would violate the Due Process Clause by either executing him using midazolam and hydromorphone, or by purchasing pentobarbital from a different pharmacist than the pharmacist Taylor alleges supplied the pentobarbital for the Franklin, Nicklasson, and Smulls executions. Missouri will execute Taylor with pentobarbital, as it executed Franklin, Nicklasson, and Smulls. It is not logical for Taylor to make his best 3
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effort to cut off the supply of pentobarbital from the pharmacist he alleges supplied the chemical for the Franklin, Nicklasson and Smulls executions, then express dismay that Missouri allegedly has been forced to purchase the chemical from a different pharmacist. The defendants are not required to identify the pharmacist who will provide the pentobarbital for Taylors execution. See In re Lombardi, 2014 WL 288937 (8th Cir. 2014) (en banc)(granting writ of mandamus protecting the identity of the pharmacist who provides execution chemicals from disclosure). But it is not necessary to reach that level of analysis, because the claim fails as a matter of law and would do so even had Taylor not tried to cut off the pentobarbital supply shortly before his execution. The United States Court of Appeals for the Eighth Circuit rejected a similar claim in Williams v. Hobbs, 658 F.3d 942, 851-52 (8th Cir. 2011) (rejecting Due Process Clause and access to courts claims, noting claims about alleged inability to discover information or litigate claims effectively are not plausible Due Process Clause or access to courts claims). The section of Williams that deals with the Due Process Clause access to courts claim rejects the claim as a matter of law. Williams, 658 F.3d at 852 (the prisoners argument is grounded in an inability to discover potential claims, which courts have held does not constitute a due process clause violation) (emphasis in original). The prisoners do not assert that they are unable to 4
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file an Eighth Amendment claim, only that they are unable to discover a potential Eighth Amendment violation. Id. Williams is directly on point and Taylors Due Process claim, like the claim in Williams, fails as a matter of law. See Lewis v. Casey, 518 U.S. 343, 354 (1996) (Court explicitly disclaims the idea that states must enable inmates to discover grievances and litigate effectively once in court). IV. Conclusion This Court should deny the motion for stay of execution. Respectfully submitted, CHRIS KOSTER Attorney General /s/ Michael J. Spillane MICHAEL J. SPILLANE Assistant Attorney General Missouri Bar No. 40704 PO Box 899 Jefferson City MO 65102 Phone: 573.751.0967 Fax: 573.751.3825 mike.spillane@ago.mo.gov ATTORNEYS FOR RESPONDENT

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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was electronically filed by using the CM/ECF system on February 19, 2014. This Courts electronic filing system should serve counsel for the plaintiffs, as all are electronic filers. /s/ Michael J. Spillane MICHAEL J. SPILLANE

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