United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 10-1573

___________

Marcel Wayne Williams, *

*

Petitioner/Appellant, *

*

v. *

*

Ray Hobbs, Interim Director, *

Arkansas Department of Correction, *

in his official capacity, *

*

Respondent/Appellee. *

___________

Appeals from the United States

No. 10-2899 District Court for the 

___________ Eastern District of Arkansas.

Jack Harold Jones, Jr., *

*

Plaintiff/Appellant, *

*

Don William Davis; Alvin Bernal *

Jackson; Stacey Eugene Johnson; *

Kenneth Dewayne Williams; Jason *

Farrell McGehee; Bruce Earl Ward, *

*

Intervenor Plaintiffs/Appellants, *

*

v. *

*

Ray Hobbs, in his official capacity *

as Acting Director of the Arkansas *
1

The Honorable J. Leon Holmes, United States District Judge for the Eastern

District of Arkansas.

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Department of Correction, *

*

Defendant/Appellee. *

 ___________

 Submitted: September 20, 2011

Filed: October 7, 2011

___________

Before LOKEN, BEAM, and MURPHY, Circuit Judges.

___________

MURPHY, Circuit Judge.

Several Arkansas prisoners on death row challenged the state's Method of

Execution Act (the Act) under 42 U.S.C. § 1983 arguing that it violates the ex post

facto clause and their due process right to access the courts. The district court1

dismissed the prisoners' claims, finding that their arguments were merely speculative,

that they had access to Arkansas's current execution protocol, and that they could

submit a FOIA request to obtain information on future protocols. In this consolidated

appeal the prisoners argue that the district court erred in dismissing their ex post facto

clause and due process claims. Appellant Williams also appeals individually

contending that the district court erred in denying his habeas petition as second or

successive and by refusing to exercise supplemental jurisdiction over a state law

claim. Appellant Jones and the prisoners that intervened in his suit appeal the denial

of their motion to vacate the judgment. We affirm.

I.

Arkansas statutorily adopted lethal injection as its method of execution in 1983.

Ark. Code Ann. § 5-4-617. As originally drafted, the statute required an inmate to be
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anesthetized before the injection of lethal chemicals. Ark. Code. Ann. § 5-4-

617(a)(1). It also required the Director of the Arkansas Department of Correction

(Director) to “determine the substances to be uniformly administered and the

procedures to be used in any execution.” Ark. Code. Ann. § 5-4-617(a)(2).

Additionally, the lethal injection statute was interpreted as requiring "a minimum of

thirty-days notice prior to any execution of any changes in the protocol." Jones v.

Hobbs, 604 F.3d 580, 582 (8th Cir. 2010) (Melloy, J., dissenting); see Ark. Code Ann.

§ 25-15-204(a)(1).

In May 2008 the Director adopted a lethal injection protocol known as AD 08-

28, which immediately faced legal challenges. First, an Arkansas prisoner on death

row challenged the adoption of this protocol for failure to comply with the notice and

comment provisions of Arkansas's Administrative Procedures Act (APA). See Ark.

Dep't of Corr. v. Williams, 2009 Ark. 523, at 2, 2009 WL 4545103, at *2. Second,

several inmates challenged AD 08-28 in federal court arguing that it violated the

Eighth Amendment. Nooner v. Norris, 2008 WL 3211290 (E.D. Ark. Aug. 5, 2008).

As part of the federal suit, the government made the protocol available to the public

in a court filing. The federal district court found that it did not violate the Eighth

Amendment. Id. at * 15. We affirmed, holding that AD 08-28 was substantially

similar to other execution protocols that had been upheld by our circuit and the

Supreme Court. Nooner v. Norris, 594 F.3d 592, 608 (8th Cir. 2010).

While the challenges to AD 08-28 were moving through the state and federal

courts, the Director lobbied the Arkansas General Assembly to amend Ark. Code Ann.

§ 5-4-617 . In response, the Assembly passed the Act in April 2009 to "clarify" the

procedures for capital punishment by lethal injection. 2009 Ark. Acts 1296.

Attributes of the Act include:

(1) It gives the Director “discretion” to determine the kind and amount of chemicals

that will be used in an execution, including an ultra short acting barbiturate, a
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chemical paralytic agent, potassium chloride, or “[a]ny other chemical.” Ark. Code

Ann. § 5-4-617(a)(1)–(2).

(2) It no longer includes any statutory requirement that the Director use anesthesia

before giving the lethal cocktail to the prisoner.

(3) It gives the Director “discretion” to determine “any and all procedures and policies

to be applied in connection with carrying out the sentence of death” including

logistics, security, injection preparations, injection implementation, and arrangements

for disposing of the body. Ark. Code Ann. § 5-4-617(a)(4)(A)–(E).

(4) It does not designate a time by which the Director must determine the lethal

injection protocol.

(5) It specifically exempts the policies and procedures for carrying out the death

sentence from Arkansas’s APA. Ark. Code Ann. § 5-4-617(a)(5)(A). It also does not

subject the policies and procedures for carrying out the sentence of death to the FOIA,

“except for the choice of chemical or chemicals that may be injected, including the

quantity, method, and order of the administration of the chemical or chemicals.” Ark.

Code Ann. § 5-4-617(a)(5)(B).

The present appeal is a consolidation of two federal cases that Arkansas

prisoners (collectively prisoners) initiated to challenge the Act. Marcel Williams, an

Arkansas prisoner under a sentence of death, is the sole named plaintiff in one of the

cases. After Williams was convicted of capital murder and had exhausted his claims

on direct appeal, see Williams v. State, 991 S.W.2d 565 (Ark. 1999), he filed a

petition for writ of habeas corpus in the United States District Court for the Eastern

District of Arkansas, alleging, among other claims, ineffective assistance of counsel

during his death penalty phase. The district court granted his petition. Williams v.

Norris, 2007 WL 1100417 (E.D. Ark. Apr. 11, 2007). We reversed after finding that
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the evidence presented by Williams was insufficient for the writ. Williams v. Norris,

576 F.3d 850, 858-63 (8th Cir. 2009).

Williams then filed the present action seeking a writ of habeas corpus,

declaratory and injunctive relief under 42 U.S.C. § 1983, and asking the court to

exercise its supplemental jurisdiction to declare the Act unconstitutional under Article

IV of the Arkansas Constitution. The district court found that Williams had not

obtained proper authorization from the Eighth Circuit to file a second or successive

habeas petition. Williams v. Hobbs, 2010 WL 749563, at *1 (E.D. Ark. Mar. 2,

2010). The district court also dismissed Williams's § 1983 claim for failure to state

a claim upon which relief could be granted because he had access to Arkansas's

current lethal injection protocol, he could obtain any future lethal injection protocols

by making a FOIA request, and his assertion that the Director would unilaterally

change the protocol was speculative. Id. at *3-4. The district court then declined to

exercise supplemental jurisdiction over the remaining state law claims because it had

dismissed all of his federal claims. Id. at *4. 

After Williams's case was dismissed, Jack Harold Jones, another prisoner

sentenced to death in Arkansas, challenged the Act on the same grounds that Williams

had. Several similarly situated prisoners intervened in Jones's suit. The district court

dismissed their case, basing its decision on the same grounds on which it had

dismissed Williams's suit. Jones v. Hobbs, 2010 WL 1417976, at *1 (E.D. Ark. Apr.

5, 2010). The district court granted a stay of execution to the two inmates who had

execution dates set so that they could appeal the ruling. Jones, 2010 WL 1417976, at

*4. We vacated the stays, holding that the two inmates had failed to demonstrate a

"significant possibility of success on the merits" because it was "purely speculative"

that Arkansas would adopt a different, unconstitutional protocol. Jones v. Hobbs, 604

F.3d 580, 581-82 (8th Cir. 2010) (per curiam). 
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Jones and the prisoners who intervened in his suit then moved to vacate

pursuant to Federal Rule of Civil Procedure 59(e) on the ground that they had found

newly discovered evidence showing that the Director believed he had "flexibility"

under the Act and that there is a worldwide shortage of anesthesia. The district court

denied this motion. Jones v. Hobbs, 745 F. Supp. 2d 886, 894 (E.D. Ark. 2010). 

The prisoners appeal the dismissal of their § 1983 claims for failure to state a

claim upon which relief can be granted. Williams individually appeals the denial of

his habeas petition and the district court's decision not to exercise supplemental

jurisdiction over his state law claims. Appellants in Jones's case appeal the denial of

their Rule 59(e) motion to vacate the judgment.

During the pendency of the federal litigation, the prisoners have continued to

challenge the Act in state court. A state circuit court recently granted partial relief to

the prisoners, ruling from the bench that the portion of the Act granting the Director

the ability to use "[a]ny other chemical or chemicals, including but not limited to" is

unconstitutional. Jones v. Hobbs, No. 2010-CV-1118 (Pulaski Cnty. Aug. 15, 2011).

The court struck this language, leaving the part of the Act governing choice of

chemicals as follows: 

(a)(1) The sentence of death is to be carried out by intravenous lethal

injection of one (1) or more chemicals, as determined in kind and

amount in the discretion of the Director of the Department of Correction.

(2) The chemical or chemicals injected may include one (1) or more of

the following substances: 

(A) One (1) or more ultra-short-acting barbiturates; 

(B) One (1) or more chemical paralytic agents; 
2

Prior to the state court's modification the word saline was preceded by the

following language: "Any other chemical or chemicals, including but not limited to

. . . ."

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(C) Potassium chloride; or 

(D) Saline solution.2

Ark. Code Ann. § 5-4-617(a). Both parties have indicated their intention to appeal

portions of the state court's decision in that case. Due to the ongoing state

proceedings, the Arkansas Supreme Court has granted six stays of execution to

prisoners in this case. See, e.g., Davis v. Hobbs, 2010 Ark. 168. The prisoners moved

this court to hold the present appeal in abeyance due to the state court proceedings.

We declined to do so because the issues remain ripe for appeal in spite of the

modifications made to the statute by the Arkansas circuit court. 

II.

The prisoners first argue that the district court erred in dismissing their § 1983

claim because the Act violates the ex post facto clause of the United States

Constitution. U.S. Const. art. I, § 10, cl. 1. We review de novo a district court's

dismissal pursuant to rule 12(b)(6), accepting as true the plaintiff's well pleaded

allegations. Parkhurst v. Tabor, 569 F.3d 861, 865 (8th Cir. 2009). Surviving a

motion to dismiss requires that the complaint contain factual allegations sufficient "to

raise a right to relief above the speculative level." Id. (quoting Bell Atlantic v.

Twombly, 550 U.S. 544, 555 (2007)).

The ex post facto clause prohibits states from "retroactively alter[ing] the

definition of crimes or increas[ing] the punishment for criminal acts." Collins v.

Yongblood, 497 U.S. 37, 43 (1990). To sustain a claim under the ex post facto clause,
3

While an Arkansas circuit court has stricken the portion of the Act affording

the Director discretion to use "any other chemical or chemicals" in the execution

protocol, the Director retains the discretion to omit anesthesia from the protocol

because the statute still provides that he "may" use "ultra-short-acting barbiturates"

(anesthesia), but does not require him to do so. 

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the prisoners must allege that a law creates "a significant risk" of increased

punishment. Garner v. Jones, 529 U.S. 244, 255 (2000). Such a showing must be

more than a "speculative and attenuated risk of increasing the measure of punishment

attached to the covered crimes," Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 514

(1995), and the ex post facto clause does not "forbid[] any legislative change that has

any conceivable risk of affecting a prisoner's punishment." Id. at 508. 

The prisoners advance three theories as to how the Act violates the ex post facto

clause. First, it creates the risk of a more painful execution by eliminating the

requirement that the Director use anesthesia during an execution; second, it increases

the prisoners' mental anxiety in the time leading up to the execution; and third, it

makes execution protocols less humane by exempting them from the notice and

comment requirements of the Arkansas APA. We address each of these theories in

turn. 

The prisoners first argue that the Act creates a significant risk of more painful

execution because it grants the Director the ability to omit anesthesia from the

protocol. They allege that the Director will likely omit anesthesia because he lobbied

the legislature to make the changes embodied in the current Act, doing so would save

money, and it would decrease the record keeping burden on the Director because he

would no longer have to document the use of anesthesia.3

 The prisoners cite evidence

to support that a person being executed without anesthesia would feel as though he

was "being buried alive in a chemical tomb." 
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The state responds that the prisoners cannot state a claim for a violation of the

ex post facto clause because they only speculate that the Director will someday choose

not to use anesthesia. See Twombly, 550 U.S. at 555. The state further contends that

the Director could not eliminate anesthesia because doing so would run afoul of the

Eighth Amendment and the Arkansas Constitution. The Director should be assumed

to act in accordance with the constitution because of the presumption that "public

officers act rightly." Pendleton Cnty. v. Amy, 80 U.S. 297, 305 (1871). Moreover,

the state urges that because the Director has previously amended the lethal injection

protocol to "reduce" the possibility that "a condemned inmate would experience

unnecessary pain during an execution," Nooner, 2008 WL 3211290, at *3, any future

elimination of anesthesia is highly unlikely. 

We agree with the state that the prisoners can do no more than speculate on this

point. They cannot concretely show that the Director is likely to eliminate anesthesia

at the time of execution. Rather, they only show that the Act makes it "conceivable"

that he will do so. Morales, 514 U.S. at 508. This is not the "significant risk" of

increased punishment needed for a violation of the ex post facto clause. Garner, 529

U.S. at 255. The speculative nature of the prisoners' theory is compounded by the fact

that the Arkansas legislature passed the Act over two years ago and the Director has

yet to eliminate the use of anesthesia. 

The prisoners next contend that they have demonstrated a facially plausible

claim that the Act violates the ex post facto clause because it increases mental anxiety

before execution since the prisoners cannot know the manner in which they will be

executed. They ground this argument in nineteenth century case law indicating that

mental anxiety is a cognizable claim under the ex post facto clause. See In re Medley,

134 U.S. 160 (1890). Medley was a habeas case involving a statute enacted after the

prisoner committed his offense. That statute prohibited the warden from

communicating to the prisoner the date and time of execution, and the Supreme Court

held that it violated the ex post facto clause because it created "an immense mental

anxiety amounting to a great increase of the offender's punishment." Id. at 172. 
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The state counters that this argument is speculative and that anxiety is the

inevitable result of incarceration on death row. Moreover, the prisoners will not suffer

increased anxiety because they already have access to the current execution protocol

through previous litigation and they can access any necessary information by a FOIA

request. 

The prisoners also argue that the Act's FOIA provision is insufficient to calm

their anxiety because while allowing for disclosure of the chemical or chemicals that

may be injected, it does not allow for the disclosure of "the quantity, method, and

order of the administration" of those chemicals. They further contend that the FOIA

clause does not allow them to obtain access to key information, such as whether the

Director will determine that a prisoner is unconscious before the execution proceeds

and whether a person with medical training will give the injection. Additionally, they

urge that the FOIA provision is illusory because the Act neither requires a written

protocol nor that any protocol be finalized a certain number of days prior to the

execution. The Director could thus change the protocol shortly before the execution

so that a prisoner would lack time to obtain the information through a FOIA request.

Or he could merely provide a list of all chemicals that "may" be used at the execution

without specifying which chemical will in fact be used.

Because the arguments surrounding mental anxiety focus on the FOIA

provision of the Act, we analyze that provision in more detail. It provides:

The policies and procedures for carrying out the sentence of death and

any and all matters related to the policies and procedures for the sentence

of death are not subject to [FOIA], except for the choice of chemical or

chemicals that may be injected, including the quantity, method, and order

of the administration of the chemical or chemicals.

Ark. Code Ann. § 5-4-617(a)(5)(B) (emphasis added). The district court found and

the state contends that this section of the Act specifically allows the prisoners to
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obtain information about the Director's choice of chemicals, quantity of chemicals,

method of injection, and order of the administration of chemicals.

The plain language of the statute defeats the prisoners' argument that the FOIA

provision prohibits disclosure of "the quantity, method, and order of administration"

of the chemicals because it expressly indicates that such information will be available

through a FOIA request. See Jones, 604 F.3d at 583 (Melloy, J., dissenting). The

argument that the Director might provide a list of all possible drugs rather than the

specific drugs that will actually be used is speculative. 

The prisoners' contention that a FOIA request will be ineffective because the

Director may change the protocol too close to the date of execution to allow them time

to make such a request is more troublesome. One can imagine a situation occurring

where the prisoners must submit a FOIA request every day in order to be sure that the

protocol has not changed prior to the execution date. The state's counsel stated at oral

argument that he could not imagine a situation in which he would not be able to call

the prisoners' counsel personally to inform them of a change in the protocol. This at

least provides the prisoners with some assurance that they will receive a timely

response to their request for information regarding a new protocol. 

While presenting a closer case than their argument regarding omission of

anesthesia, the prisoners do not present a plausible ex post facto claim based on

increased anxiety. Medley is distinguishable from the present case because the court

there was concerned about the secrecy surrounding the date of execution. 134 U.S.

at 172. That secrecy was a concrete harm because the prisoners had no way of

discovering when the execution would take place. Here, the prisoners' execution will

take place on a date certain. What troubles them is not being sure they will have

advance notice about the details surrounding the execution. Another circuit has

recently rejected the argument that Medley provides prisoners a broad right to know

the details of their execution to "avoid uncertainty that unnecessarily creates anxiety."

Powell v. Thomas, 641 F.3d 1255, 1258 (11th Cir. 2011) (per curiam). 
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The prisoners in this case have access to the current protocol, the ability to

make a FOIA request, and assurances by the state's counsel that he will provide them

with any new execution protocol upon request. Thus the information the prisoners

require to ease their anxiety is discoverable, unlike the date of execution in Medley.

The prisoners therefore have not pled facts showing the "significant risk" of increased

punishment necessary to make out an ex post facto violation. Garner, 529 U.S. at 255.

The prisoners finally argue that the Act violates the ex post facto clause because

it removed the protections of Arkansas's APA. Before the Act was passed, an

Arkansas circuit court determined that AD 08-28 was invalid because the Director had

failed to follow the APA. See Ark. Dep't of Corr. v. Williams, 2009 Ark. 523, at 3,

2009 WL 4545103, at *3. The passage of the Act while the appeal in that case was

pending rendered moot the issue of APA compliance. Id. at 6-7. According to the

prisoners, a more humane protocol would have been established had the Director been

forced to comply with the rigorous notice and comment requirements of the APA.

The state counters that because the Arkansas Supreme Court never reached the issue

it is unclear whether the APA applied to execution protocols prior to the Act. The

district court concluded that the prisoners merely speculate that their punishment

would be more humane had AD 08-28 been subject to the APA. 

The prisoners' argument based on the removal of APA protections was properly

rejected by the district court. Even if the APA did apply to execution protocols before

the Act, the prisoners produced no evidence that public opinion in Arkansas would

have been against AD 08-28 or that people would have spoken out against the

protocol. Rather, the prisoners merely cite general language from cases suggesting

that the notice and comment process provides the public an "opportunity to

participate" and allows an agency to be "educated about the impact of a proposed

rule." See, e.g., Wagnon v. Arkansas Health Svcs. Agency, 40 S.W.3d 849, 852 (Ark.

App. 2001) (quoting 2 Am. Jur. 2d Administrative Law § 166 (1994)). They thus

again fail to plead facts showing the "significant risk" of increased punishment

needed to make out an ex post facto violation. Garner, 529 U.S. at 255. 
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Under all three theories the prisoners fail "to raise a right to relief above the

speculative level." Twombly, 550 U.S. at 555. We conclude that the district court

properly dismissed the § 1983 claim based on violation of the ex post facto clause.

III.

The prisoners next contend that the district court erred in dismissing their §

1983 claim because they provided facts sufficient to show that the Act denies them

their due process right to access the courts. Because this is a challenge to the district

court's dismissal of their claim, our review is again de novo. Parkhurst, 569 F.3d at

865.

Those in prison "have a constitutional right of access to the courts." Bounds v.

Smith, 430 U.S. 817, 821 (1977). We have held that to state this claim, "a prisoner

must establish the state has not provided an opportunity to litigate a claim challenging

the prisoner's sentence or conditions of confinement in a court of law, which resulted

in actual injury, that is, the hindrance of a nonfrivolous and arguably meritorious

underlying legal claim." Hartsfield v. Nichols, 511 F.3d 826, 831 (8th Cir. 2008).

Access to the courts claims typically result from deficiencies in a prison's law library

or legal assistance program that hinder an inmate's ability to bring a claim. See Lewis

v. Casey, 518 U.S. 343, 351 (1996). By contrast, the due process clause is not meant

to "enable the prisoner to discover grievances, and to litigate effectively once in

court." Id. at 354 (emphasis in original). The Fourth Circuit has ruled that a prisoner

cannot sustain a due process access to the courts claim where the prison system has

refused to give him access to its medical protocol. Giarratano v. Johnson, 521 F.3d

298, 305–06 (4th Cir. 2008). The court there determined that the refusal to provide

that information did not make it impossible for the prisoner to challenge the medical

protocol, it just made it more difficult for him to discover legal claims. Id.
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The prisoners argue that the Act violates the due process clause because the

secrecy encompassed in it denies them "an opportunity to litigate" their nonfrivolous

claim that the execution protocol violates the Eighth Amendment. Hartsfield, 511

F.3d at 831. Because the Director can deviate from the established protocol at any

moment, they contend that they will be unable to challenge the protocol in court.

Similar to their ex post facto arguments, the prisoners assert that the FOIA clause in

the Act is insufficient to protect their rights.

These arguments fail to state a plausible due process access to the courts claim.

First, the prisoners argument is grounded in an inability to discover potential claims,

which courts have held does not constitute a due process violation. Lewis, 518 U.S.

at 354; Giarratano, 521 F.3d at 305–06. The prisoners do not assert that they are

physically unable to file an Eighth Amendment claim, only that they are unable to

obtain the information needed to discover a potential Eighth Amendment violation.

Secondly, the prisoners do not demonstrate "actual injury" because they cannot show

that litigating an execution protocol first requires access to the protocol. Indeed, the

prisoners argument is belied by the fact that they brought an Eighth Amendment

challenge to the then unknown AD 08-28 while asserting in their court filings that the

lethal injection proceedings are "top secret." Nooner, 2008 WL 3211290. 

Furthermore, we have held that AD 08-28 satisfies the Eighth Amendment

requirements, Nooner, 594 F.3d at 608, and the prisoners have not demonstrated that

the Director has departed from this protocol. Rather they speculate the he might

depart from it in the future. Until the prisoners can put forth evidence that the

Director has deviated from the approved protocol, they have no "nonfrivolous" Eighth

Amendment claim to bring and thus suffer no "actual injury" by being unable to bring

such a claim. Hartsfield, 511 F.3d at 831. The district court was thus correct to

dismiss the prisoners' § 1983 claim based on lack of access to the courts.
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IV.

Appellant Williams argues in his individual appeal that the district court erred

in declining to exercise supplemental jurisdiction over his state law claim that the Act

violates Article IV of the Arkansas Constitution. He contends that because the state

never objected to the supplemental jurisdiction, it waived any objection to such

jurisdiction. We review a district court's decision not to exercise supplemental

jurisdiction for an abuse of discretion. Johnson v. City of Shorewood, 360 F.3d 810,

819 (8th Cir. 2004). 

A federal district court has discretionary power to decline jurisdiction where it

has "dismissed all claims over which it has original jurisdiction." 28 U.S.C. §

1367(c)(3). "[I]n the usual case in which all federal-law claims are eliminated before

trial, the balance of factors to be considered under the pendent jurisdiction doctrine

. . . will point toward declining to exercise jurisdiction over the remaining state-law

claims." Johnson, 360 F.3d at 819 (quoting Carnegie-Mellon Univ. v. Cohill, 484

U.S. 343, 350 n.7 (1988)). The district court here did not abuse its discretion when

it dismissed Williams's state law claim after it had dismissed all of his federal claims.

Williams also argues in his individual appeal that the district court erred in

denying his habeas petition as a second or successive petition. We review de novo

a district court's dismissal of a habeas petition as second or successive. Williams v.

Norris, 461 F.3d 999, 1001 (8th Cir. 2006).

A "second or successive" habeas petition requires authorization from a federal

court of appeals prior to filing. 28 U.S.C. § 2244(b)(3)(A). "Second or successive"

is a term of art and not every habeas petition that is second in time requires

preauthorization. Crouch v. Norris, 251 F.3d 720, 723–25 (8th Cir. 2001). Where a

claimant could not have raised a claim in his first habeas petition because it had not

yet arisen, he will be allowed to seek a second habeas petition without first obtaining

our authorization. Singleton v. Norris, 319 F.3d 1018, 1023 (8th Cir. 2003). Williams
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contends that because his first petition was fully adjudicated by the district court in

2007 and the Act was not passed until 2009, it would have been impossible for him

to raise the claims regarding the Act in his first petition. He claims that our

authorization was therefore not needed prior to filing.

While we agree that the district court erred in classifying Williams's habeas

petition as "second or successive" because he could not have raised his current claims

at the time of his first petition, the dismissal of the petition was harmless error. To be

reversible, an error "must affect a substantial right of the objecting party, and the

burden of showing prejudice rests on that party." Crane v. Crest Tankers, 47 F.3d

292, 296 (8th Cir. 1995). Here, Williams can show no prejudice through dismissal of

his habeas petition because he sought identical relief in his habeas petition and his §

1983 claims. The district court properly analyzed his claims under § 1983, as we have

done in other instances. See, e.g., Clemons v. Crawford, 585 F.3d 1119, 1122 (8th

Cir. 2009). We conclude that the district court's error is harmless.

V.

Following the dismissal of their claims, appellant Jones and the prisoners who

intervened in his case moved to vacate the judgment under Federal Rule of Civil

Procedure 59(e) because they had discovered new evidence to support their § 1983

claims. The district court denied this motion determining that even if the complaints

were amended to include the new evidence, they would "still fail to raise the right to

relief above a speculative level." Jones, 745 F. Supp. 2d at 889. We review the denial

of a Rule 59(e) motion for an abuse of discretion. Anderson v. Family Dollar Stores

of Ark., 579 F.3d 858, 861 (8th Cir. 2009).

Rule 59(e) motions based on new evidence are analyzed in the same manner as

Rule 60(b)(2) motions. United States v. Metro. St. Louis Sewer Dist., 440 F.3d 930,

933 n.3 (8th Cir. 2006). To prevail on such a motion the movant must show "(1) that

the evidence was discovered after the court's order, (2) that the movant exercised
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diligence to obtain the evidence before entry of the order, (3) that the evidence is not

merely cumulative or impeaching, (4) that the evidence is material, and (5) that the

evidence would probably have produced a different result." Miller v. Baker

Implement Co., 439 F.3d 407, 414 (8th Cir. 2006) (emphasis added). In support of

the Rule 59(e) motion, the prisoners offered a news article stating that a public

information officer believed the Act gave the Arkansas Department of Correction

"flexibility in case one of the chemicals used in lethal injections became unavailable,

was improved or a more effective substitute emerged." Hobbs, 745 F. Supp. 2d at

888. The prisoners also offered an article from an Ohio newspaper discussing a

worldwide shortage of the anesthetic used in lethal injections. Id. 

The prisoners are unable to meet the requirements for a Rule 59(e) motion

because the new evidence they offered does not add anything concrete to the evidence

provided in their complaint. The public information officer's statement regarding the

flexibility afforded by the Act is merely speculation that the Director might one day

change the chemicals used in the protocol. This is no different than what the prisoners

were able to show prior to discovering the new evidence. Similarly, the fact that

anesthesia is in short supply worldwide does not indicate that the Arkansas

Department of Correction is in short supply of the drug. This evidence only indicates

that a future shortage of anesthesia might cause the Director to exclude it from the

protocol. The prisoners thus cannot meet the required showing that this evidence

would have produced a different result. Miller, 439 F.3d at 414. The district court did

not abuse its discretion in denying the Rule 59(e) motion. 

VII.

We affirm the judgment of the district court and its order denying the motion

to vacate the judgment.

______________________________