172222P.pdf   04/01/2020  Ernest Johnson  v.  Anne L. Precythe
   U.S. Court of Appeals Case No:  17-2222
   U.S. District Court for the Western District of Missouri - Jefferson City   
   [PUBLISHED] [Colloton, Author, with Smith, Chief Judge, and Beam, Circuit 
   Judge] 
   Prisoner case - Death Penalty. For the court's prior opinion in the 
   matter, see Johnson v. Precythe, 901 F.3d 973 (8th Cir. 2018). On remand 
   from the Supreme Court for further consideration in light of Bucklew v. 
   Precythe, 139 S. Ct. 1112 (2019). To prove a claim under the Eighth 
   Amendment, a prisoner must prove two elements: first, that the State's 
   method of execution presents a risk that is sure or very likely to cause 
   serious illness or needless suffering, and give rise to sufficiently 
   imminent dangers and, second, a feasible and readily implemented 
   alternative method of execution that would significantly reduce a 
   substantial risk of severe pain and that the state has refused to adopt 
   without a legitimate penological reason; here, in light of Bucklew, 
   Johnson fails to meet the second element because his claim falls squarely 
   within the alternative holding of Bucklew that the Eighth Amendment does 
   not require a state to adopt an untried and untested method of execution 
   (nitrogen-induced hypoxia); as a result, the district court's judgment 
   dismissing the case for failure to state a claim is affirmed. 
  
172222P.pdf   08/27/2018  Ernest Johnson  v.  Anne L. Precythe
   U.S. Court of Appeals Case No:  17-2222
   U.S. District Court for the Western District of Missouri - Jefferson City   
   [PUBLISHED] [Colloton, Author, with Smith, Chief Judge, and Beam, Circuit 
   Judge] 
   Prisoner case - Death Penalty Matter. The district court erred in 
   dismissing for failure to state a claim plaintiff's challenge to the 
   constitutionality of Missouri's method of execution as applied to him; 
   plaintiff's complaint and his medical doctor's attached affidavit include 
   factual allegations that a seizure will occur when the State injects 
   pentobarbital and that such a seizure causes great pain; these allegations 
   are not legal conclusions, but statements of fact, and more detailed 
   factual allegations are not required under Fed. R. Civ. P. 12; 
   additionally, plaintiff pleaded the second element of an Eighth Amendment 
   claim - that there is an alternative method of execution that is feasible, 
   readily implemented and which would, in fact, significantly reduce a 
   substantial risk of pain; his claim that the use of nitrogen hypoxia would 
   ameliorate the risk of severe pain because it would not trigger the 
   seizures associated with pentobarbital was sufficient to state a claim 
   that the alternative method would significantly reduce a substantial risk 
   of sever pain for him in his particular circumstances; complaint was not 
   subject to dismissal under Rule 12(b)(6) based on the statute of 
   limitations. Reversed and remanded for further proceedings.