United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-1397

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Michael Anthony Taylor,

Appellant,

v.

Larry Crawford, Director, MO

Dept. of Corrections; James D.

Purkett, Superintendent, Eastern

Reception Diagnostic &

Correctional Center,

Appellees.

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Appeal from the United States

District Court for the

Western District of Missouri. 

[PUBLISHED]

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Submitted: April 18, 2006

 Filed: April 27, 2006

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Before RILEY, BEAM, and HANSEN, Circuit Judges. 

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PER CURIAM.

Michael Anthony Taylor appeals the district court's judgment denying his

claim, brought pursuant to 42 U.S.C. § 1983, that the State of Missouri's current lethal

injection protocol violates the Eighth Amendment's ban on cruel and unusual
1

Taylor's complaint also included claims that the lethal injection protocol

violates the Thirteenth Amendment as a badge of slavery and that the State unlawfully

uses physicians to carry out essential steps in an execution in violation of medical

ethics. At oral argument before this court, Taylor's attorneys explicitly abandoned

those claims. We therefore will not address them in this opinion, and they may not

be reasserted before the district court on remand. 

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punishment. We remand for further proceedings consistent with this opinion but

retain appellate jurisdiction. 

I.

Michael Taylor was sentenced to death after pleading guilty to first degree

murder, armed criminal action, kidnapping, and forcible rape for the abduction, abuse

and brutal murder of 15-year-old Ann Harrison. See State v. Taylor, 929 S.W.2d 209

(Mo. 1996) (en banc), cert. denied, 519 U.S. 1152 (1997). The United States District

Court for the Western District of Missouri denied his petition for a writ of habeas

corpus, and we affirmed. See Taylor v. Bowersox, 329 F.3d 963 (8th Cir. 2003), cert.

denied, 541 U.S. 947 (2004). There is no question that Taylor's convictions and

sentence of death are valid, and the State has a significant interest in the prompt

execution of its judgments. See Nelson v. Campbell, 541 U.S. 637, 644 (2004) ("[A]

State retains a significant interest in meting out a sentence of death in a timely

fashion").

No death warrant had yet been issued on June 3, 2005, when Taylor filed the

instant § 1983 action in the district court challenging the method of his execution.

Taylor sought a declaratory judgment that the State's existing lethal injection

procedure violates the Eighth and Fourteenth Amendments to the United States

Constitution by creating a substantial and unnecessary risk that Taylor will suffer the

wanton infliction of gratuitous pain.1

 Another Missouri death row inmate, Richard D.

Clay, intervened in the lawsuit asserting the same claim. The State's lethal injection
2

The Honorable Scott O. Wright, United States District Judge for the Western

District of Missouri.

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protocol, which is not mandated by statute, involves administering (1) a 5-gram

injection of sodium pentothal (also known as thiopental), (2) a 60-milligram injection

of pancuronium bromide, and (3) a 240-milliequivalent injection of potassium

chloride, with each injection separated by a saline flush. The injections are

administered by an IV catheter that a board-certified surgeon has inserted into the

femoral vein. Taylor alleges that the State's three-chemical protocol creates a

foreseeable likelihood that he might be conscious but paralyzed and unable to indicate

that he is suffering gratuitous and torturous pain before death, and that the placement

and use of the femoral vein access causes the gratuitous infliction of pain.

Taylor moved for expedited discovery on August 1, 2005. The court denied the

motion but assured Taylor that he would be given sufficient time for discovery and a

decision prior to his execution. (See App. at A-52.) Discovery went forward, but the

State objected to certain interrogatories that sought the identity of the doctor and nurse

who had attended previous executions. Magistrate Judge Knox issued a protective

order requiring the State to provide responses concerning its practices and the

qualifications of any medical personnel who have participated in executions, without

disclosing their identities or any confidential information. 

The State filed a motion to dismiss the action for failure to state a claim and

alternatively argued that the case should be recharacterized as a habeas petition and

dismissed as second or successive. On December 28, 2005, the district court2

 denied

the motion to dismiss. On January 3, 2006, the Supreme Court of Missouri set the

date for Taylor's execution as February 1, 2006, providing nearly a month within

which the district court could and should have held an evidentiary hearing in this case,

resolved the issues and entered a judgment, and we could have entertained any appeal.
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Not until January 18, 2006, did the district court set a date for an evidentiary

hearing. The court set the hearing for February 21, 2006, and ordered a temporary

injunction staying the February 1 execution until further order of the court after the

hearing. Judge Wright gave no reason to justify the injunction other than that his

calendar was unable to accommodate an evidentiary hearing prior to February 21. The

State appealed the injunction on January 23, 2006. We reversed the stay (see Order,

No. 06-1278, Jan. 29, 2006) after concluding that the State's strong interest in the

prompt execution of its judgment was not outweighed by the district court's

scheduling difficulty. In recognition of Mr. Taylor's equally strong interest in having

an evidentiary hearing on his claims prior to his execution, we ordered that the case

be reassigned to a district court judge who could immediately hold an evidentiary

hearing and issue a ruling prior to 12:00 noon on February 1. Our order also stayed

the execution until 11:59 p.m. on Friday, February 3, 2006, which provided a window

of time for an appeal of the merits to this court prior to execution.

On remand, the chief judge of the United States District Court for the Western

District of Missouri reassigned the case to the Honorable Fernando J. Gaitan, Jr.,

United States District Judge for the Western District of Missouri, who promptly held

a telephonic evidentiary hearing on January 30 and 31, 2006. Judge Gaitan made it

clear to the parties that the hearing would be concluded within the time frame set by

this court, and the intervenor withdrew from the case. At the hearing, Taylor

presented the expert opinion testimony of Dr. Mark J. S. Heath, an anesthesiologist,

and Dr. Jonathan Groner, a pediatric surgeon. Taylor requested the State to produce

John Doe Numbers One and Two (the doctor and nurse who participated in the most

recent execution), but the district court denied this request. The State presented the

testimony of Dr. Mark Dershwitz, an anesthesiologist, and Terry Moore, the Director

of the Adult Institutions Division of the Missouri Department of Corrections. At the

close of the hearing, Taylor sought to present the expert testimony of Dr. Sri Melethil,

a pharmacokineticist, to rebut the State's expert witness, but Dr. Melethil had been out

of town and was unable to appear until the morning of February 1. The district court
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did not permit this delay, and Taylor's attorney was unable to make an offer of proof

due to the scientific nature of the testimony and the limited time within which the

district court was required to hold the hearing and make a decision. In good faith

compliance with this court's order, Judge Gaitan heard and considered the testimony

presented on January 30 and 31 and issued an order denying all claims on the

afternoon of January 31. 

The State then moved to vacate the stay of execution issued by this panel on

January 29, 2006. In recognition that the district court had completed the required

hearing and entered an order denying Taylor's claims on the merits, our panel

modified the stay to provide that it would expire at 5 p.m. on February 1, 2006, rather

than on February 3, bringing it within the 24-hour window created by the Supreme

Court of Missouri's death warrant. Judge Beam dissented on the ground that he would

have vacated the stay in its entirety. (See Order, No. 06-1278, Jan. 31, 2006). 

Taylor immediately appealed the district court's adverse order, asserting that the

expedited and truncated hearing before the district court denied him of due process,

that the district court abused its discretion by not permitting him to call medical

witnesses John Doe Numbers One and Two or Dr. Melethil, and that the district court

erred in denying his claims on the merits. Taylor also sought a stay of execution. The

panel denied the stay. (See Order, No. 06-1397, Feb. 1, 2006) (Hansen, J. dissenting).

The same day, the en banc court voted (9-1) to grant Taylor's petition for rehearing

and application for a stay. (See Order, No. 06-1397, Feb. 1, 2006) (en banc) (Riley,

J. dissenting). The en banc court then returned the case to this panel for disposition

following briefing and oral argument. 

II. 

Having now thoroughly considered the arguments of the parties and having read

the transcript of the record developed before the district court in the telephonic
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hearing, we conclude that we will be somewhat more comfortable as we consider and

determine the merits of the case if the district court has had an opportunity to expand

or supplement the record. We mean no criticism of Judge Gaitan; in fact, we

commend him for his excellent management of the hearing and the issuance of an

order on such short notice and within the extreme time constraints created by the first

district judge's failure to give the matter the expedited consideration it required and

by our attempt to accommodate both sides within the remaining time established by

the expiration date of the state supreme court's death warrant. Having reviewed the

record made before the district court, we now realize the burdensome strain that our

order imposed upon the district court as well as upon the parties as they made

extraordinary efforts to comply. We hereby offer our mea culpa–this panel attempted

to accommodate two significant and important competing interests, but unfortunately

failed in both respects. As a result, the enforcement of the State's judgment has been

postponed, and Taylor was unable to make the record he felt necessary for the full and

fair consideration of the merits of his case. We simply asked the district court and the

parties to do too much in too little time.

Several existing circumstances inform our decision to remand. The United

States Supreme Court is presently considering the issue of whether a § 1983 complaint

brought by an inmate sentenced to death and challenging a state's lethal injection

procedure is properly recharacterized as a habeas corpus petition. See Hill v. Crosby,

126 S. Ct. 1189 (2006) (granting an application for a stay of execution and granting

the petition for a writ of certiorari on this issue). Because the Supreme Court did not

grant a stay in the present case (see S. Ct. Order, No. 05-8919, Feb. 1, 2006), we will

permit the case to continue in its present form unless the Court's forthcoming decision

in Hill at some point mandates a different course of action. 

Additionally, the en banc court of this circuit granted a stay. In view of the

existing record, the importance of the issue to this plaintiff as well as others, and the

likelihood of the recurrence of these identical issues in future Missouri death penalty
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cases, we remand for the limited purpose of permitting a continuation of the hearing

held on January 30-31, 2006, before Judge Gaitan. While we conclude that some

further opportunity for discovery may be warranted, we leave all matters of what

further discovery may be warranted to Judge Gaitan, confident that if he feels it

necessary he will employ the assistance of Magistrate Judge Knox, in light of Judge

Knox's extensive prior experience with the pretrial issues in this case. 

III. 

Accordingly, we remand the case with instructions that the hearing be

reconvened before Judge Gaitan. The parties shall have 30 days from this order to

engage in any further discovery that the district court in its discretion deems warranted

and an additional 30 days within which the hearing shall be completed and for the

district court to enter its order amending, modifying, or restating its present judgment,

and certifying the same to us. We will then establish an expedited briefing schedule

and an expedited oral argument. We choose this 60-day time period based on the

representations of counsel made at oral argument that such a period is sufficient to

complete the task already begun, and we will strictly enforce it. We also choose it

because we conclude such a period will accommodate the significant interests of both

sides, which we have identified. 

The case is remanded for further proceedings consistent with this opinion. 

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