United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-3486

___________ Samuel Lee McDonald, * * Appellant, * * Charles W. Armentrout, III, * * Appeal from the Unite d States Plaintiff, * District Court for the * Eastern District o f 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 prisone r scheduled to be executed on September 24, 1997, at 12:01 a.m. for the capital murder of off-duty police officerThe Honorable Cathlee n D. Perry, United States District Judge for the Eastern 1 District of Missouri. -2- 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. Ser v. S.B. No. 56 (Vernon's) (Missouri PLRA), and the Department of Corrections Locker Policy. Th e district court dismissed McDonald's claims as speculativ e 1 and frivolous, see McDonald v. Carnahan , No. 4:97-CV

1927-CDP, slip op. at 5-6 (E.D. Mo. Sept. 19, 1997), and denied McDonald's request for a stay of execution. Se e id. at 6.

McDonald has now filed a pro se notice of appeal wit h this Court and has moved pro se for a stay of execution. Immediately prior to filing the instant motio n for a stay of executi on, McDonald, through counsel, also moved this Court for permission to file a successive habeas corpu s peti tion 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. 97-82 01 (8th Cir. Sept. 22, 1997) (per curiam). We similarly den y McDonald's instant motion for a stay of execution.
We have explained that:

The d eath penalty is the ultimate penalty, bu t that fact alone does not require a stay o f execution when legal challenges are raised

. After completion of direct rev iew, a presumption of f inality and legality attaches to th e convi ction and sentence. A stay of executio n pending disposition of a § 1983 suit should b e granted only if there are subs tantial grounds on-3-

which relief might be granted. The burden is on the movant to make this showing.
Perry v. B rownlee , No. 97-3101, slip op. at 4 (8th Cir. Aug. 4, 1997) (quotations and citations omitted ) (emph asis added). McDonald has failed to meet thi s burden.-4-

In his § 1983 complaint, McDonald contends that th e Mis souri PLRA constitutes a violation of McDonald' s constitutional rights because he was "told th at [inmates]
cann ot file any state habeas corpus, or petition s challenging their convictions unless they submit copie s of their prison account and pay the full cost . . . . " Notice and Pet. for Temporary Restraining Order , Requesting Preliminary Injunction, and and (s ic) Order to Show C ause Why the Injunction Should Not be Mad e Permanent Requesting Appointment of Counsel G iving Notice to the Defs. at 4, ¶ 9 (referencing the Missouri PLRA ) (Not ice). As the district court noted, "plaintif f McDonal d does not even state that he has even attempte d to file an action with the Missouri Supreme Court. H e only states that he has 'been told' that he cannot fil e a state habeas unless he [complies with the M issouri PLRA and] submits copies of his prison account statement an d pay[s] the full cost. This claim is purely speculativ e as t his Court does not know how Missouri courts wil l interpr et the [Missouri PLRA] or what they would eve n require fr om a death row inmate facing execution to file
a wr it of habeas corpus." McDonald , No. 4:97-CV-1927

- CDP, slip op. at 5.

McD onald also contends that the Department o f Corr ections Locker Policy requires that inmates kee p their personal possessions in "t[w]o very sma ll tubs, and that aside from all their state clothing, an d necessities, they will be given disciplinary violation s for having any legal files in their possession that will not f it in the tub[s.]" Notice at 4, ¶ 8. As th e district c ourt noted, McDonald does "not allege that [he has] suffered an actual injury to pending or contemplated-5-

lega l claims because of" the Department of Correction s Locker Policy. McDonald , No. 4:97-CV-1927-CDP, slip op. at 6.

Becau se McDonald has failed to demonstrate tha t "there are substantial grounds on which relief might b e granted," Perry , No. 97-3101, slip op. at 4, we deny his motio n for a stay of execution. Because McDonald's § 1983 action is frivolous, we summarily dismis s his appeal of the district court's dismissal of his § 1983 action

. SeeCharles W. Armentrout, III raised § 1983 claims along with McDonald i n 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 Fi le an Appeal In Forma Pauperis and Request for Emergency Stay at 1 (Sept. 2 0, 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. Accor dingly, our dismissal of McDonald's appeal is without prejudice as to any appeal Armentrout may bring. -6- 8th Cir. R. 47A(a) ("The court will dismiss t he appeal if it is . . . frivolous and entirely without merit."). 2

A true copy.

Attest:

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