court has that adequately briefed and in pleadings what i want to talk about specifically are two arguments related to the district court's order of dismissal on a rule twelve b six a motion to dismiss the district court erred in this case on two basis one that the court held that mr johnson to a higher pleading standard than is required by the supreme court precedent and ball and twamley and then second the district court erred by adding an element to the glossop standards for lethal injection claims that are simply not required and ruled in part on that basis in dismissing mr johnson's claim the glossop standards are fairly clear in order to prove a case an eighth amendment violation mr johnson and other plaintiffs would have to prove that there's a substantial risk of serious harm that is sure or very likely to occur as a result of the execution protocol and then second they have to plead and prove an alternative method of execution that's feasible readily implementable and significantly reduces the harm to the inmate we think we've done that in this case on multiple occasions but we're here on the second amended petition that was for a complaint that was filed in the district court for the western district of missouri and let me address the two arguments that were addressed by the district court one is related to the substantial risk of serious harm as this court is well aware of the pleading standards and that's what we're here and i kind of want to emphasize that we're here not on summary judgment standard but we're here on simply whether mr johnson adequately pled the claims and offered a sufficient factual basis for the court to find that his lethal injection claims are plausible the court this record agreed that doctors of it who was the expert that mr johnson relied on along with the affidavit that he provided was qualified to give the opinions that he that he stated to the mr johnson was in is that severe or serious risk of seizures as a result of his medical condition and his medical condition being that he has a malignant brain tumor that that opinion was pretty iffy wasn't it which had been in your opinion you're talking about doctors if it's a been here i don't believe it was what he said and what he said throughout his affidavit was he walked through one the history of mr johnson's medical condition starting in two thousand and eight when he had the tumor partially respected in two thousand and eleven there was an m that was conducted that showed that he had scarring tissue and he had a compressed portion of his brain the result of which after looking at his medical records show that he had a history of seizures and as  he what he talked about was looking at his record of and history of seizures along with his use of anti seizure medication combining that with the use of pentobarbital a a substance that used are the sole similar structural compound and that the use of that was actually a seizure inducing medicine and that given his heightened risk of seizures that was his opinion right that's correct and that's the only opinion before the court i mean there is nothing rebut that because the state hasn't answered he characterized the rich slow as a significant risk rather than something that was likely or very likely to curves at their career and that's one of the things he said he also said in paragraph fifteen that the missouri execution protocol will increase the likelihood of a seizure with a very high degree of probability what is that me i mean what does that mean when i think that he's using his medical terminology that says that the combination the pen to barbara tall the introduction of pentobarbital to mr johnson given his unique medical condition increases the likelihood to a very substantial probability that it's why does me just say that then i mean we're familiar with doctors of it  and why doesn't he just say what you just said if that's what he means what he said is it will increase the likelihood of a seizure with a very high degree of probability now a normal english that sounds like it's highly probable that it will increase the likelihood of a seizure but it never says how likely the seizure is i you know in terms of a percentage in terms of whether it's sure very likely to occur or it just said only increase the likelihood move it increases the likelihood from five percent to ten percent and then it's not sure very likely to occur so i don't understand why is it apparently he can't say that it will make it sure very likely to occur or he would say that right well i think those are legal terms and not necessarily medical terms he's using medical terminology the legal terms are what the court has used in terms of sure very likely i think the opinion is pretty iffy like i said the beginning and you said no but what the district court position you prevail if there is any possibility then of this trauma occurring or do we evaluate that to see how strong your case  i don't i don't believe that there if there is any possibility i don't think that's the standard and that's not what we plaid and i that certainly wouldn't meet the glossop standards to do that again where at the pleading stage we would have to prove ultimate plea if we get into that if we are given that the process that we've asked is we would have to prove that it is short or very likely all we will have to do at this point is whether we are pleading is sufficient and the factual support is insufficient to demonstrate that it is plausible that mr johnson can ultimately support his claims and we think that that's sufficient based on what we have plotted and also point out to this to the court that doctors evidence because it was just politan it alluded to is very familiar with doctors of it doctors it was also he's been the expert in a number of cases the mcgee cases out of arkansas but also most notably out of the buckelew case that was recently before this court just a couple of months ago in that case and that case came before this court twice in the initial one in the a pleadings that ultimately survived a motion to dismiss in the very same courtroom or courthouse  that this case emanates from doctors if it said it was a substantial risk and a great risk that's all he said in his affidavit as to mr buck lose probability that he would suffer an eighth amendment violation as a result of has actually said has provided an additional factual basis stronger factual basis in which we've pled to support his his findings so i think that and the district court talks about this in terms of probabilities of johnson and kill mr buckley it'll kill all of them the question is so there's not there's on the ability to test or to demonstrate through medical testing whether you know what the reaction will be for an individual equally because mister because mr johnson has this unique medical condition it's the combination of the two that doctors it says raises the possibility to a not the possibility but the probability to a great degree and that's that given his seizure history given the seizure inducing medication and then also the impact of pain to barber tall being a pain inducing medication the combination of all of those which we have all plaid and again this is a lot of motion to dismiss stage makes it plausible that that mr johnson can ultimately prove his eighth amendment violation the court gave an alternative or gave it a second basis which was on the alternative method of execution and they said that you know it has to be readily available injection is authorized by missouri statutes and we provided the court with a basis to find that the use of nitrogen gas one is allowed under missouri law is readily implementable meaning the the doesn't require the use of a new facility doesn't require the use of special effects or methods the the things to implemented are easily available nitrogen gases and  gas that is available on the open market and the use of a hood or a mask would allow for a simple process and then finally we've alleged that the use of lethal gas because it is nitrogen gas specifically because it is not a seizure inducing substance that that alone would allow him to pass the twelve b sixty age and then we have alleged a readily available feasible and readily implementable alternative at the district court that added some things one they said that that we didn't plead or mr johnson failed to plea that missouri was willing to implement nitrogen gas as an alternative that's not an element in the lawsuit that's not something we have to prove and in fact it would be something that would be impossible to prove that the that the defendant in a case if they say that they're not willing to implement it then they win that's not something requires and that's not something that we should be held to the district court also sort of added affirmative defenses an affirmative facts that were outside of the record they talked about protocol training time to develop rooms etc all of which might be if we get into a factual scenario where we're discussing after discovery those might be defenses that would be put up by the defense in this case or by the state saying that their protocol would take too long and it would take additional training but those are all facts that are outside of the record and shouldn't be considered by the court all we have to look at in all this court should look at is whether mr johnson provided a plausible alternative that's readily available and easily implementable i note that again going back to the baku case the specificity of information provided in the pleading in mr johnson's case far outweighs the specificity provided by mr buck lose lawyers again in the same courthouse different courtroom but same courthouse that had survived a motion to dismiss he just said that nitrogen gas was readily available and easily implementable took two paragraphs and that was it we have provided substantially more facts to support mr johnson's plausibility of his claim in this particular case and finally i'd say that it's notable in this case while i don't that this is the third time that this case has been before has has been played in the district court on the first time that the state acknowledged even pleading if you are facts and what we have here the state acknowledge that mr johnson had been had provided an adequate and standards there are not higher pleading standards for people but a shooting in lethal injection cases it ball verse and both apply we have met the notice pleading standards of the rule eight and the district court's decision to dismiss the case under what we have pled and what we've provided to the court at this stage of the litigation is more than sufficient to meet the pleading standards and if there'd be no additional questions all my time good morning i may or please the court the district court's decision in this case should be affirmed because the district court properly applied this court's precedent when finding that mr johnson failed to play to plead facts that would  panel hold this case until the court has evaluated that case does that have any connection with his it does not you are there are four question and the court should not hold this case there are four questions in buckelew three of which relate to discovery or summary judgment issues and the third question relates to the second prong of glossop but the district court in this case properly found that mr johnson failed to plead facts on either prong so even if mr bloch buckelew prevails at the at the ny state supreme court which the department doesn't believe he will but if he were to prevail on his arguing about the second clung mr johnson's case time this case was before the court and the court denied the motion for stay and then the supreme court granted to stay pending appeal in the you with that history i am your honor now you think that the standard for granting a stay pending appeal is something like significant possibility of success on the merits yes ro so what do you make of the supreme court's order from november of two thousand and fifteen they granted a stay pending appeal citing doctors of its affidavit and the part where doctors of it says as a result  why isn't that a pretty strong signal that he's at least cleared the pleading standard because your honor the two thousand and fifteen stay from the united states supreme court said that this court should decide if the complaint was properly dismissed for failing to state a claim or if the case should be allowed to proceed to summary judgment it's the department's position that if the united states supreme court had wanted the state to take effect until the case it proceeded through summary judgment or through a trial that the court would have said so in the stay instead of providing this court with the opportunity to they're not going to get into that they're not going to say it should persist it should prevail through summary judgment when the case was only on a motion state's position that mr johnson is going to be or has been able to plead and the facts to prove sure are very likely i do acknowledge that the fact that there was a united states supreme court stay in the case is unusual and i understand it that the interface between that the district court decision will weigh on this court's mind when it when it looks to mr johnson's second amended complaint but what about paragraph fourteen of the exhibit affidavit why isn't that enough to at least get over the pleading standard and paragraph fourteen your honor and i don't have a copy of the affidavit and fun to me my recollection is that that's the paragraph that discuss ejection generalized seizures such as the one that would occur in mr johnson are severely painful right why isn't that enough to get over the pleading standard and require you to then challenge divots credibility or accurate reliability this court in mcgee he found that that language significant possibility was not enough to meet the rigorous standard of shore very likely sounding doesn't even say what will happen if metal hex it off is given to mr johnson he says that there's in his view a likelihood that the rate of seizures will go up i think the court's earlier questions to opposing counsel know he does say that you're right about that but then he says generalized seizures such as the one that would occur in mr johnson are severely painful isn't that a statement that it would occur i think your honor my understanding of that paragraph is that that is the type of seizure that mr johnson experiences elsewhere in the affidavit talks about how it's a full body seizure that's the typical seizure he experienced begins and his legs and progresses to a full seizure where he loses consciousness that's a different then you know some other type of seizure or grand mal seizure or or some other type so that's my understanding of doctors about affidavit with respect to that particular portion you mean you think he's referring to a seizure well say that again you think he's not referring to the kind of seizure the johnson would suffer i think here he is roof go ahead i'm sorry your honor i didn't mean to interrupt i think he's referring to the type of that's not my understanding from that paragraph your honor i think the court's earlier questions if doctors of god was able to say that the application of pentobarbital to honest johnson would cause a seizure he would have said the court's earlier question about the probability i think the court's exactly right that that refers to the confidence that doctor's if it has with respect to his belief that the that there is an increased likelihood for a seizure i don't think that that language explains how much more likely a seizure would be in mr johnson's particular case and the court this court i think very aptly points out the rationale behind the shore the very likely requirement which is that it's designed to prevent embroiling the state's a never ending litigation concerning the adequacy of the execution procedures and that's the situation that the state has found itself in here and so without mcgee he also then continues on to the next page and says without a scientific consensus and with a lack or a small amount of reliable scientific evidence a challenger might never be able to prove that method execution is sure or very likely under the eighth amendment and that's the situation that mr n it's a legal conclusion and there has to be facts that support that conclusion doctors or is if it's affidavit never explains why or to what extent will increase the likelihood f of pleading by analogy doesn't allow an individual to survive a motion to dismiss he needs to plead facts about pentobarbital and he has not done so in this case your opinion your position the test is very not possible sure or very likely yes wrong with respect to the second prong of gossip what is the state's position on whether nitrogen  would not characterize it that way i think that the state's position in discovery in the buckley case was that because there was so little evidence on the other prongs we didn't need to engage in the additional discovery for the way that nitrogen would be applied in this case there are no facts that talk about the implementation which i would describe as the process of getting the nitrogen from the tank to the prisoner there are no facts in this case that have been pled that establishes how that would happen there are there is a report but the district court pointed out that the report is full of cautionary statements that talk about the risks and the dangers and the fact that states are going to need to have  a more advanced a more detailed protocol as opposed to just putting a bag or a hood over someone's head because oklahoma actually implement a protocol they have not your honor my understanding is that the oklahoma legislature adapt rather adopted a statute that authorizes the use of nitrogen hypoxia the department of corrections in oklahoma had a press conference saying that they were going to start investigating to create a protocol but they have not completed that yet and indeed so why isn't the pleasing enough to raise the question whether he can prove that it's readily implementable because he has to plead facts your honor that talk about the way in which the nitrogen of oxy a would be implemented and the reason for that i think one of the reasons is that imagine that an inmate pleads or doesn't plead any to any facts about the way in which nitrogen could be implemented in this case there's a wide range of possibilities and i think it's safe to say that as soon as the state were to pick one then there would be a new complaint alleging that there's a better way to implement it  additionally i think the fact that oklahoma report talk about even a small amount of oxygen that enters the environment has a serious chance to disrupt the entire execution that's the reason why the united states supreme court imposed that the language about a feasible and vitally implemented alternative and immediately this court talked about how there has to be access to the alternative that the state has to be able to carry out the alternative method relatively easily and reasonably quickly i just wonder whether you're requiring too many detailed facts i think your honor there's a point at which that the nitrogen gas is feasible and readily implemented including use of a hood mask or some other type of medically enclosed device i just wonder whether you're asking too much to say well he's also got to give all the details about how that would actually work whether that's something for possible summary judgment or bench trial and i understand the court's concern because there has to be a level rule a level of respect between the requirement to plead allegations and and the potential for the plea requirement to go overboard in twamley and it by all the i states supreme court talks about how it will aid is a departure from the prior very high pleading standards but the united supreme court in a says that it does not relate does not unlock the doors to discovery for a plain ash who only has conclusions what we have in this case is a lack of facts to talk about from tank to offender i think it would be unfair and certainly not what the department's trying to do in this case to say that the offender must plead and entire protocol open and closed at the very beginning of the case that would  be the protocol that the court is seen in various other cases there's not the department's position is not the entire protocol needs to be played in the opening complete but there need to be some facts that talk about how the gas moves from a tank  to the offender and that even set aside the fact although it's not directly played here there are different types of knowledge there is medical grade nitrogen is not used in welding or cooking it's used in medical applications but even setting aside that that might be a closer question judge calls into requiring an offender to plead a particular grade of nitrogen that might be over the line what do you mean by how it gets from the tank to the offender he says use mask you mean he needs to put distances as the gas would go through a tube from the tank to the mask and that would be enough well and a better description or more information about a mask there are several types of masks and the oklahoma report talks about the very real dangers in using a mask you know the oklahoma report talks about how one to two breaths might be enough but that's  pure nitrogen but that if there is any oxygen that invades that that breathing then things begin to go awry and so this isn't a situation where you know  talking about the existence of a mask what does that mean a gas mask does it mean the type of mass that they might use at a dentist office is it some other option more specificity there is necessary for a court to be able or for the department to be able to talk about or make a decision about whether that is feasible and readily implemented we're going to read the pleading stage here yes you're on and since the federal courts except notice to do is i'm at your fault and that was enough to get into the proceeding and discovery and the evidence and so forth and it's not the department's position that the court should go all the way to fact leading the department disagrees with mr johnson's position that there's some sort of heightened plating requirement here but merely saying a hood or a mask or some other delivery method is not enough to have a method of as an alternative method of execution that is feasible and readily implemented that needs to be something more and we don't quite have that in this case that the district court talked about the fact that the  department might need to have a protocol that the department need to address the risk of the oxygen contamination which is what we've just discussed and that people would need to be trent do you defend this says the johnson didn't plead missouri's willing to perform this type of execution i disagree with the way that mr johnson has presented that i think that's on page nine of the district court's decision where the district court talks about comments by a former attorney general in relation to a gas chamber martin and i understand the sentence says johnson is not pled facts in the kidding missouri is willing to perform this type of execution which suggests it may not be feasible that means that missouri's unwillingness to do it makes it not feasible i wonder whether that's correct and that's not how i understand that that sentence to read my understanding your honor is that that is a recognition of this court's opinion in the earlier buckley case where the department of corrections had made a statement saying we won't use indigo blue or indigo  this court found that that was an indication about feasibility i think that the court's skepticism about if a state just says we refuse to ever do anything other than this current method that that that does raise some very legitimate concerns and i see that i'm almost out of time so i would just ask the court to affirm the district court's decision because mr johnson has failed to plead facts established either prong of of costs as he's required to do under twelve b six you just a couple of things that i wanted to address that came up in the state's argument one judge beam you asked about the buckley case and we filed a motion with the court to stay at least the argument in this case on that basis  court took four questions three of which were proposed by mr buckley himself and one was added by the court two of the questions specifically go to prong two of the glossop standards which is whether he is required in and has applied claim one of their any plaintiff has applied claim is required to plead their own specific alternative method of execution setting aside the difference between a facial challenge like this court faced in zinc to missouri's execution that plane of having to prove or come up with their own bespoke execution protocol and as applied claim was not required under or shouldn't be required under supreme court precedent if the supreme court holds in in that in mr buckley is case that it is not required then at least one of the basis for the district court's dismissal would go away if assuming this case is still pending an active so of the we think on that basis it would be worthwhile to to hold this case until the buckelew is decided but i also want to address a lot of the arguments that the state made talked more about proving the allegations which undoubtably are challenging i think the supreme court has talked a long with this court have talked about the challenge and ultimately maybe proving a basis if they get to a trial or an adversarial proceeding but that's again not the stage we're at we're at this simply the pleading stage so while there may be challenges in terms of ultimately finding an expert in proving whether proving the ultimate claims that's not what we're here to decide we're here simply to decide whether the district court properly applied the supreme court precedent and rule twelve b six to the pleadings that were before the court and we think they did not we talk about negate he in the state relied on mcgahee a lot again he was an interesting case for one it was after a four day hearing adversarial hearing in the district court of arkansas and it came to this court that as judge call it a noted on a motion for stay of execution the standards by that were really hard to meet and in the court's opinion the the court talked about one the dilatory nature of the plaintiff bringing their claims to the equivocal nature of the evidence that was presented at the district court that's not of what we have here and in fact when we look at  the first time that this case came before this court the stay of execution or at least the stay pending the completion of the appeal was at a much higher standard than what we have even as we stand here today we met that meaning at least from the supreme court's present perspective the affidavit was presented the prior affidavit was presented by doctors if it was substantial enough to meet the pleading standards or at least meet the standards to obtain a stay of execution well i think it's only the latter if they didn't say it was enough to meet the pleading standard you said the court of appeals would be required to decide whether the complaint was properly dismissed that's correct and i think in all very facts correct you just said they met the pleading standard or at least they met enough first day meeting the standards to show success and likelihood of success on appeal is much more challenging than meeting the pleading standards that we that we can show that that we have at least alleged a plausible lethal injection clime so in a court the judge loken acknowledged that in the second buckle opinion in the buckley opinion on reversal after the stay of execution said that acknowledge that mr  standards and that they require the court to reconsider the whether the motion to dismiss was properly granted at the district court stage and he acknowledged that that that stay was important in the court's mind in terms of evaluating whether the pleading standards were you know if they could meet that standard in the pleading standards probably met as well we think that the district court erred the district court required too much and it requires a pleading standard that's way beyond what is required by a ball and twamley we think that we've met that we've asked the court to reverse an artist does have you have you pled plausibility correct thank you  the next case for argument is march first that's phelps county