United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-3486

___________

Samuel Lee McDonald, *

*

Appellant, *

*

Charles W. Armentrout, III, *

* Appeal from the United

States

Plaintiff, * District Court for the

* Eastern District of

Missouri.

v. * [PUBLISHED]

*

Mel Carnahan; Jay Nixon; Duane *

Benton, Chief Justice, Missouri State *

Supreme Court; Dora Schriro; Michael *

Bowersox, *

*

Appellees. *

____________

Submitted: September 22, 1997

 Filed: September 22,

1997

_____________

Before McMILLIAN, WOLLMAN, and MAGILL, Circuit Judges.

___________

PER CURIAM.

Samuel Lee McDonald is a Missouri state prisoner

scheduled to be executed on September 24, 1997, at 12:01

a.m. for the capital murder of off-duty police officer 
The Honorable Cathleen D. Perry, United States District Judge for the Eastern 1

District of Missouri.

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Robert Jordan. On September 17, 1997, McDonald filed a

pro se 42 U.S.C. § 1983 action challenging provisions of

the Missouri Prison Litigation Reform Act, 1997 Mo.

Legis. Serv. S.B. No. 56 (Vernon's) (Missouri PLRA), and

the Department of Corrections Locker Policy. The

district court dismissed McDonald's claims as speculative

1

and frivolous, see McDonald v. Carnahan, No. 4:97-CV1927-CDP, slip op. at 5-6 (E.D. Mo. Sept. 19, 1997), and

denied McDonald's request for a stay of execution. See

id. at 6.

McDonald has now filed a pro se notice of appeal with

this Court and has moved pro se for a stay of execution.

Immediately prior to filing the instant motion for a stay

of execution, McDonald, through counsel, also moved this

Court for permission to file a successive habeas corpus

petition under 28 U.S.C.A. § 2244(b) (West Supp. 1997)

and for a stay of execution. We have denied these prior

motions. See McDonald v. Bowersox, No. 97-8201 (8th Cir.

Sept. 22, 1997) (per curiam). We similarly deny

McDonald's instant motion for a stay of execution.

We have explained that:

The death penalty is the ultimate penalty, but

that fact alone does not require a stay of

execution when legal challenges are raised.

After completion of direct review, a presumption

of finality and legality attaches to the

conviction and sentence. A stay of execution

pending disposition of a § 1983 suit should be

granted only if there are substantial grounds on
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which relief might be granted. The burden is on

the movant to make this showing.

Perry v. Brownlee, No. 97-3101, slip op. at 4 (8th Cir.

Aug. 4, 1997) (quotations and citations omitted)

(emphasis added). McDonald has failed to meet this

burden. 
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In his § 1983 complaint, McDonald contends that the

Missouri PLRA constitutes a violation of McDonald's

constitutional rights because he was "told that [inmates]

cannot file any state habeas corpus, or petitions

challenging their convictions unless they submit copies

of their prison account and pay the full cost . . . ."

Notice and Pet. for Temporary Restraining Order,

Requesting Preliminary Injunction, and and (sic) Order to

Show Cause Why the Injunction Should Not be Made

Permanent Requesting Appointment of Counsel Giving Notice

to the Defs. at 4, ¶ 9 (referencing the Missouri PLRA)

(Notice). As the district court noted, "plaintiff

McDonald does not even state that he has even attempted

to file an action with the Missouri Supreme Court. He

only states that he has 'been told' that he cannot file

a state habeas unless he [complies with the Missouri PLRA

and] submits copies of his prison account statement and

pay[s] the full cost. This claim is purely speculative

as this Court does not know how Missouri courts will

interpret the [Missouri PLRA] or what they would even

require from a death row inmate facing execution to file

a writ of habeas corpus." McDonald, No. 4:97-CV-1927-

CDP, slip op. at 5.

McDonald also contends that the Department of

Corrections Locker Policy requires that inmates keep

their personal possessions in "t[w]o very small tubs, and

that aside from all their state clothing, and

necessities, they will be given disciplinary violations

for having any legal files in their possession that will

not fit in the tub[s.]" Notice at 4, ¶ 8. As the

district court noted, McDonald does "not allege that [he

has] suffered an actual injury to pending or contemplated
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legal claims because of" the Department of Corrections

Locker Policy. McDonald, No. 4:97-CV-1927-CDP, slip op. at 6.

Because McDonald has failed to demonstrate that

"there are substantial grounds on which relief might be

granted," Perry, No. 97-3101, slip op. at 4, we deny his

motion for a stay of execution. Because McDonald's §

1983 action is frivolous, we summarily dismiss his appeal

of the district court's dismissal of his § 1983 action.

See
Charles W. Armentrout, III raised § 1983 claims along with McDonald in

2

McDonald's suit in the district court. See McDonald, No. 4:97-CV-1927-CDP, slip

op. at 1. It does not appear that McDonald's notice of appeal includes Armentrout, see

Mot. for Leave to File an Appeal In Forma Pauperis and Request for Emergency Stay

at 1 (Sept. 20, 1997), and it appears that Armentrout's factual predicate for his claims

differs somewhat from McDonald's. See McDonald, No. 4:97-CV-1927-CDP, slip op.

at 5. Accordingly, our dismissal of McDonald's appeal is without prejudice as to any

appeal Armentrout may bring.

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8th Cir. R. 47A(a) ("The court will dismiss the appeal if

it is . . . frivolous and entirely without merit.").2

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.