United States Court of Appeals
                      For the Eighth Circuit
                  ___________________________

                          No. 14-2220
                  ___________________________

                                David Zink,

                 lllllllllllllllllllll Plaintiff - Appellant,

              Michael S. Worthington; John E. Winfield,

                        lllllllllllllllllllll Plaintiffs

     Leon Taylor; Walter T. Storey; Earl Ringo; Roderick Nunley,

                lllllllllllllllllllll Plaintiffs - Appellants,

                           John C. Middleton,

                        lllllllllllllllllllll Plaintiff,

Paul T. Goodwin; Andre Cole; Reginald Clemons; Cecil Clayton; Mark
            Christeson; Russell Bucklew; David Barnett,

                lllllllllllllllllllll Plaintiffs - Appellants,

               Richard Strong; Marcellus S. Williams,

                       lllllllllllllllllllllIntervenors,

                                      v.

George A. Lombardi; David R. Dormire; Terry Russell; John Does, 2-40,

                lllllllllllllllllllll Defendants - Appellees.
                                 ____________
                      Appeal from United States District Court
                for the Western District of Missouri - Jefferson City
                                  ____________

                           Submitted: September 9, 2014
                              Filed: March 6, 2015
                                   [Published]
                                 ____________

Before RILEY, Chief Judge, WOLLMAN, LOKEN, MURPHY, BYE, SMITH,
COLLOTON, GRUENDER, SHEPHERD, and KELLY, Circuit Judges, En Banc.
                            ____________

PER CURIAM.1

       Several prisoners sentenced to death in Missouri appeal the district court’s2
dismissal of their complaint challenging the lethal-injection protocol of the Missouri
Department of Corrections. The prisoners sued state officials who are charged with
planning, supervising, and carrying out executions, and two independent contractors
who allegedly have prescribed, produced, or tested the compounded pentobarbital
used in the State’s current lethal-injection protocol. They sought a declaratory
judgment that the lethal-injection protocol violates the Constitution of the United
States, the Missouri Constitution, several provisions of state law, and Missouri
common law, and an injunction that prevents the defendants from executing them in
accordance with the protocol.




      1
        Chief Judge Riley and Judges Wollman, Loken, Smith, and Gruender join this
opinion. Judge Colloton joins all but Part II.A of this opinion. Judge Shepherd joins
all but Part II.B of this opinion.
      2
        The Honorable Beth Phillips, United States District Judge for the Western
District of Missouri.

                                         -2-
                                            I.

       This litigation commenced in 2012 when the prisoners challenged what was
then a new lethal-injection protocol. In prior years, Missouri’s lethal-injection
protocol involved the administration of three drugs: “[S]odium thiopental to
anesthetize the prisoner and render him unconscious, pancuronium bromide to
paralyze him and stop his breathing, and potassium chloride to stop the prisoner’s
heart.” Ringo v. Lombardi, 

, 795 (8th Cir. 2012). In May 2012, after
sodium thiopental became unavailable, the State revised its protocol to use a single
drug—propofol—as the lethal agent.

       In June 2012, the prisoners sued in state court to challenge the new protocol.
State officials removed the case to federal court and promptly moved to dismiss the
petition for failure to state a claim. The district court denied the motion in part and
granted it in part, ruling as relevant here that the plaintiffs had adequately pleaded that
the protocol presented a risk of harm that violated the Eighth Amendment and that the
prisoners were not required to plead a reasonable alternative method of execution to
the use of propofol. The court also ruled that the allegedly higher risk of pain posed
by the protocol, compared to the State’s prior methods of execution, sufficed to state
a claim of unconstitutional ex post facto punishment.

       In October 2013, the State informed the district court that it had revised its
protocol to use pentobarbital, rather than propofol, as the lethal agent. In late 2013,
after a discovery dispute, the district court ordered the State to disclose to counsel for
the prisoners the identities of the physician who prescribes the pentobarbital used in
Missouri executions, the pharmacist who compounds it, and the laboratory that tests
the compounded drug. In re Lombardi, 

, 892 (8th Cir.) (en banc), reh’g
denied, 

(8th Cir.), cert. denied, 

(2014). This court
issued a writ of mandamus vacating the district court’s order requiring disclosure. 

897. We determined that the complaint then pending failed to state any claim to
which the identities of those parties was relevant. 

       In February 2014, the plaintiffs filed a second amended complaint. That
complaint alleges ten separate claims, seven of which are at issue in this appeal: (1)
that the State’s use of compounded pentobarbital constitutes cruel and unusual
punishment, in violation of the United States Constitution; (2) that the defendants are
deliberately indifferent to the plaintiffs’ medical need for their executions not to inflict
gratuitous pain; (3) that the State’s use of compounded pentobarbital creates a
significant risk of increased punishment over previous methods and accordingly
amounts to ex post facto punishment, in violation of the United States Constitution;
(4) that the defendants have deprived them of due process under the United States
Constitution by not providing timely and adequate notice of the lethal injection
methods; (5) that the defendants have deprived them of equal protection under the
United States Constitution by deviating from the execution protocol in certain
instances; (6) that the defendants have violated their First Amendment rights under the
United States Constitution by refusing to disclose the identities of the pharmacy that
compounds the pentobarbital and its suppliers; and (7) that the defendants have
violated a number of federal laws by soliciting and using the compounded
pentobarbital in executions, all allegedly reviewable under Missouri’s Administrative
Procedure Act, Mo. Rev. Stat. § 536.150.

       In May 2014, the district court granted the State’s motion to dismiss the
complaint. The court dismissed all claims except for that alleging “cruel and unusual
punishment” in violation of the Eighth Amendment and its Missouri constitutional
analog. As for the remaining claim, the court ruled that the prisoners’ concession that
“other methods of lethal injection . . . would be constitutional” did not suffice to state
a claim under the Eighth Amendment. But the court allowed the prisoners seven days
to amend the claim and address that deficiency by presenting “factual allegations
permitting the Court to determine whether the alleged alternative method [of

                                            -4-
execution] is reasonably available and less likely to create a substantial risk of harm.”
The prisoners responded that they did not intend to plead an alternative method of
execution, because they believed the law did not require them to do so. In light of that
response, the district court dismissed the remaining claim and entered a final
judgment. This appeal followed.

                                           II.

       The prisoners’ lead argument on appeal is that they stated a claim under the
Eighth Amendment that Missouri’s lethal-injection protocol violates the prohibition
on cruel and unusual punishment.3 As in Lombardi, our analysis must begin with a
basic proposition: “[C]apital punishment is constitutional. It necessarily follows that
there must be a means of carrying it out.” Baze v. Rees, 

, 47 (2008)
(plurality opinion) (internal citation omitted). Any allegation that all methods of
execution are unconstitutional, therefore, does not state a plausible claim under the
Eighth Amendment. 

.

      Baze addressed an Eighth Amendment challenge to a lethal-injection protocol,
and our opinion in Lombardi summarized the rule of Baze as follows:

      Where, as here, there is no assertion that the State acts purposefully to
      inflict unnecessary pain in the execution process, the Supreme Court
      recognized only a limited right under the Eighth Amendment to require
      a State to change from one feasible method of execution to another. The
      controlling opinion of the Chief Justice in Baze provides that if a State
      refuses to adopt a readily available alternative method of execution that
      would significantly reduce a substantial risk of severe pain, then “a
      State’s refusal to change its method can be viewed as ‘cruel and unusual’
      under the Eighth 

(plurality opinion)


      3
        The prisoners do not develop an argument on appeal concerning the dismissal
of their claim alleging cruel and unusual punishment under the Missouri Constitution.

                                          -5-
      (emphasis added). In sum: “A stay of execution may not be granted on
      grounds such as those asserted here unless the condemned prisoner
      establishes that the State’s lethal injection protocol creates a
      demonstrated risk of severe pain. He must show that the risk is
      substantial when compared to the known and available alternatives.” 

(emphasis 

.

       The district court, relying on Lombardi, concluded that the second amended
complaint adequately alleged that the protocol creates a substantial risk of severe pain.
The court ruled, however, that the prisoners failed to allege sufficiently the second
essential element of an Eighth Amendment claim—i.e., that there exists a feasible
alternative method of execution that would substantially reduce the risk of harm.
Although the prisoners conceded in the second amended complaint that “other
methods of lethal injection the Department could choose would be constitutional,” the
court reasoned that this “naked assertion” was insufficient to allege that an alternative
method is reasonably available and less likely to create a substantial risk of harm.

        To state a claim under the Federal Rules of Civil Procedure, a complaint must
contain “a short and plain statement of the claim showing that the pleader is entitled
to relief.” Fed. R. Civ. P. 8(a)(2). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 

, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 

, 570 (2007)). A pleading need not include “detailed
factual allegations,” but it is not sufficient to tender “naked assertion[s]” that are
“devoid of further factual enhancement.” 

marks omitted). A
complaint must do more than allege “labels and conclusions” or “a formulaic
recitation of the elements of a cause of action.” 

       We first address whether the second amended complaint adequately alleges that
Missouri’s lethal-injection protocol creates a substantial risk of severe pain. We
review a district court’s grant of a motion to dismiss for failure to state a claim under
Rule 12(b)(6) de novo. United States ex rel. Raynor v. Nat’l Rural Utils. Coop. Fin.,
Corp., 

, 955 (8th Cir. 2012). We assume all facts in the complaint to be
true, and draw all reasonable inferences in favor of the non-moving party. 

and “threadbare recitations of the elements of a cause of
action supported by mere conclusory statements” are not entitled to a presumption of
truth when considering the sufficiency of a complaint. 

. A
complaint must be plausible on its face and “‘[a] claim has facial plausibility when the
pleaded factual content allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’” Magee v. Trustees of Hamline Univ.,
Minn., 

, 535 (8th Cir. 2014) (quoting 

). Making
a plausibility determination is a “‘context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.’” 

556
U.S. at 679).

       Stating a plausible Eighth Amendment claim in the context of the prisoners’
attack upon Missouri’s execution protocol first requires the prisoners to plead
sufficient facts indicating that the protocol creates a “substantial risk of serious harm.”
 See 

(“We have explained that to prevail on such a claim there
must be a ‘substantial risk of serious harm,’ an ‘objectively intolerable risk of harm’
that prevents prison officials from pleading that they were ‘subjectively blameless for
purposes of the Eighth Amendment.’” (quoting Farmer v. Brennan, 

,
842, 846 & n.9 (1994))). Indeed, the prisoners allege the lethal-injection protocol
creates a substantial risk of serious harm in that it inflicts a “substantial risk of severe
pain.” See 

However, successfully pleading facts to demonstrate a

                                            -7-
substantial risk of severe pain requires the prisoners to plead more than just a
hypothetical possibility that an execution could go wrong, resulting in severe pain to
a prisoner. The Eighth Amendment prohibits an “‘objectively intolerable risk’” of
pain, rather than “simply the possibility of pain.” 

-62 (quoting 

). The plurality opinion in Baze acknowledged that the nature of
executions necessarily involves the risk of pain: “Some risk of pain is inherent in any
method of execution—no matter how humane—if only from the prospect of error in
following the required procedure.” 

But “the Constitution does not demand
the avoidance of all risk of pain in carrying out executions.” 

Eighth
Amendment requires that the prisoners show the intended protocol is “‘sure or very
likely to cause serious illness and needless suffering.’” 

(quoting Helling v.
McKinney, 

, 33 (1993)).

      Relying on this court’s decision in Lombardi, the district court found the
prisoners’ second amended complaint adequately alleged that the protocol created a
substantial risk of severe pain:

          The Eighth Circuit specifically referenced the language used in
          Plaintiffs’ previous complaints regarding the risk and level of pain
          necessary to plead an Eighth Amendment violation, and gave no
          indication such language was insufficient. Based on that fact and
          the case law cited by Plaintiffs, the Court concludes Plaintiffs
          sufficiently plead an Eighth Amendment claim regarding the risk
          and level of pain that the current execution protocol carries.

R. Doc. 437, at 8. Our decision in Lombardi addressed the pleading requirement of
a feasible alternative to the current lethal-injection protocol. It did not address the
sufficiency of the complaint regarding the allegation of a substantial risk of severe
pain. Because the district court relied upon our decision in Lombardi as the basis for
finding the prisoners had satisfied this pleading burden, a determination of the
sufficiency of the prisoners’ complaint regarding the allegation of a substantial risk
of severe pain now requires a more thorough analysis.

                                          -8-
      When reviewing the sufficiency of a complaint, we review the complaint itself
and any exhibits attached to the complaint. Meehan v. United Consumers Club
Franchising Corp., 

, 913 (8th Cir. 2002) (“‘[M]aterials attached to the
complaint as exhibits may be considered in construing the sufficiency of the
complaint.’” (quoting Morton v. Becker, 

, 187 (8th Cir. 1986))). The
prisoners filed a second amended complaint with 32 exhibits attached, including
declarations and affidavits from medical professionals.

                                           1.

       In the second amended complaint the prisoners rely on analysis from a
pharmacology expert and an anesthesiologist in alleging that the use of a
compounding pharmacy to produce the execution drug creates an “objectively
intolerable risk of pain.” It is alleged that “[c]ompounding pharmacy products do not
meet the requirements for identity, purity, efficacy, and safety that pharmaceuticals
produced under FDA regulations must meet.” R. Doc. 338, at 44. The prisoners
identify four distinct potential risks which they believe could result from the State’s
use of compounded pentobarbital. First, they allege that the compounded
pentobarbital could be sub- or super-potent. According to the second amended
complaint, sub-potent pentobarbital could fail to cause the death of the prisoner,
leaving him unconscious with a lower rate of respiration, causing irreversible brain
damage. R. Doc. 338, at Ex. 5. Super-potent pentobarbital could result in suffocation
and difficulty breathing before losing consciousness. R. Doc. 338, at Ex. 5. Second,
the prisoners allege that the pentobarbital could easily be contaminated with allergens,
toxins, bacteria, or fungus. The prisoners allege that the injection of pentobarbital so
contaminated could cause a painful allergic reaction in the blood. R. Doc. 338, at 45.
Third, the prisoners allege that foreign particles could contaminate the compounded
pentobarbital, creating the risk that a prisoner could experience serious pain upon
injection or could suffer from a pulmonary embolism. R. Doc. 338, at 45. Finally, the



                                          -9-
prisoners allege that the drug may not maintain the proper pH,4 potentially resulting
in numerous complications, most notably severe burning upon injection or a
pulmonary embolism. R. Doc. 338, at 45. The prisoners also allege that improper
storage of the pentobarbital and use beyond its expiration date could exacerbate the
potential for these harms. R. Doc. 338, at 49-51.

        Asserting that compounding pharmacies commonly lack oversight and
regulation, it is alleged that the use of compounding pharmacies “often results in drugs
which are contaminated, sub-potent or super-potent, or which do not have the
strength, quality or purity” of FDA-regulated drugs. R. Doc. 338, at. Ex. 6. These
compounding pharmacies are alleged to be an “emerging, substandard drug industry”
that are responsible for the creation of “large quantities of unregulated, unpredictable
and potentially unsafe drugs.” R. Doc. 338, at Ex. 6. Noting that the lack of
regulation allows compounding pharmacies to obtain ingredients from countries with
little pharmaceutical oversight, it is alleged that it is impossible to trace the origin of
the drugs, resulting in no guarantee that the drugs are what they purport to be. It is
alleged that Missouri’s current compounded pentobarbital lethal-injection protocol is
“replete with flaws that present a substantial risk of causing severe and unacceptable
levels of pain and suffering during the execution.” R. Doc. 338, at Ex. 5.

      The prisoners also allege that the State might administer the execution drugs via
central venous access rather than peripheral venous access.5 R. Doc. 338, at 30. The


      4
       pH is a measure of the acidity or basicity of a solution. See Taber’s Cyclopedic
Medical Dictionary 1377 (Clayton L. Thomas ed., 16th ed. 1989). According to the
affidavits attached to the prisoners’ second amended complaint, maintaining a proper
pH is an important aspect of a properly produced drug. If a drug is too acidic or too
basic, it may be incompatible with human blood, causing various unintended
reactions. See R. Doc. 338, at Ex. 6.
      5
       Central venous access involves the insertion of a catheter into a large vein in
a person’s neck, chest, or groin. Peripheral venous access involves the placement of

                                           -10-
prisoners allege that the use of a central line carries a higher risk of complication in
following the lethal-injection protocol, increases the length of the execution, and is
more invasive and painful than peripheral venous access. R. Doc. 338, at 32.
Notably, the prisoners make no mention of the central vein issues in their briefing
before this court, instead focusing on alleged issues relating to the use of compounded
pentobarbital. Because the prisoners have failed to brief this issue before our court,
we decline to consider it here. See Neb. State Legislative Bd., United Transp. Union
v. Slater, 

, 658 n.3 (8th Cir. 2001) (explaining that claims not raised in
an initial brief are waived).

                                           2.

       None of the alleged potentialities the prisoners identify in the second amended
complaint relating to compounded pentobarbital rises to the level of “sure or very
likely” to cause serious harm or severe pain. The prisoners’ allegations are limited to
descriptions of hypothetical situations in which a potential flaw in the production of
the pentobarbital or in the lethal-injection protocol could cause pain. This speculation
is insufficient to state an Eighth Amendment claim. See Brewer v. Landrigan, 

, 445 (2010) (“[S]peculation cannot substitute for evidence that the use of
the drug is ‘sure or very likely to cause serious illness and needless suffering.’”
(quoting 

)). By noting that the use of compounding pharmacies
“often results” in “potentially unsafe drugs,” the experts whose views have been
incorporated into the second amended complaint underscore that the harms they have
identified are hypothetical and not “sure or very likely” to occur. R. Doc. 338, at Ex.
6. The prisoners rely on allegations of generalized harms resulting from the use of a
compounding pharmacy to produce the pentobarbital and have failed to provide




a catheter in a peripheral vein, most commonly in the hand or arm. See 6 The Gale
Encyclopedia of Medicine 4571-72 (Laurie J. Fundukian ed., 4th ed. 2011).

                                         -11-
anything more than speculation that the current protocol carries a substantial risk of
severe pain.

       Even if one of the harms the prisoners identify were to occur, the prisoners offer
nothing in their pleading to support the allegation that it would be more than an
isolated incident. The prospect of an isolated incident does not satisfy the requirement
that prisoners adequately plead a substantial risk of severe pain to survive a motion
to dismiss their Eighth Amendment claim. See 

(“[A]n isolated
mishap alone does not give rise to an Eighth Amendment violation, precisely because
such an event, while regrettable, does not suggest cruelty, or that the procedure at
issue gives rise to a ‘substantial risk of serious harm.’” (quoting 

)). Accepting as true the factual matter alleged in the second amended complaint,
if any of the hypothetical situations the prisoners identify came to pass, it would
amount to an “isolated mishap” that, “while regrettable,” would not result in an Eighth
Amendment violation.

                                           3.

       Case law from other circuits also supports our conclusion that the prisoners’
allegation of a substantial risk of severe pain is inadequate. At least one court has
found that an Eighth Amendment challenge to an execution protocol was properly
dismissed after the plaintiff-prisoner failed to sufficiently plead a plausible claim that
the lethal-injection protocol was sure or very likely to create a substantial risk of
severe pain. See Cook v. Brewer, 

, 1008 (9th Cir. 2011). In Cook, the
Ninth Circuit considered a challenge to Arizona’s lethal-injection protocol, a three
drug protocol involving the use of sodium thiopental. 

found that the
prisoner’s “reliance on speculative and conclusory allegations [was] insufficient to
state a facially plausible claim” when he alleged that the use of non-FDA approved
sodium thiopental created a substantial risk of severe pain. 

alleged
that the unregulated drug could be ineffective, contaminated, and could differ greatly

                                          -12-
in potency, quality, and formation from other FDA regulated drugs. 

The
court rejected these claims as “speculative and overly generalized,” finding that the
prisoner failed to make any specific factual allegations regarding the alleged harms
arising from the use of an unregulated drug. 

only identified
hypothetical harms that would be “applicable to every drug produced outside the
United States.” 

thus held that the bare allegations that the sodium
thiopental was imported and non-FDA approved did not plausibly show that the drug
was “sure or very likely to cause serious illness and needless suffering,” and the
district court had properly dismissed the prisoner’s Eighth Amendment claim. 

       The same prisoner mounted a second challenge to Arizona’s use of sodium
thiopental in its three drug lethal-injection protocol, alleging that the drug created a
substantial risk of severe pain because there had been 12 adverse drug reaction
reports, the drug had been manufactured for use on animals, it had caused problems
in three executions in the United States, and the State obtained it unlawfully. Cook
v. Brewer, 

, 917 (9th Cir. 2011). The Ninth Circuit again upheld the
dismissal of the prisoner’s complaint, finding that he had failed to satisfy the pleading
requirements to state an Eighth Amendment claim. 

“Because Cook’s
four new allegations do not support the drawing of any non-speculative conclusions,
Cook has failed to state a facially plausible claim that Arizona’s planned execution is
‘sure or very likely to cause . . . needless suffering.’” Id. (quoting 

).

      Other circuits have also denied prisoners relief when challenging a compounded
pentobarbital lethal-injection protocol. See Whitaker v. Livingston, 

, 468
(5th Cir.), cert. denied, 

(2013) (affirming denial of motion for
preliminary injunction when plaintiff-prisoners failed to show state’s execution
protocol of compounded pentobarbital caused a substantial risk of severe pain when
they had “pointed to only hypothetical possibilities” and were unable to “point to

                                          -13-
some hypothetical situation, based on science and fact, showing a likelihood of severe
pain”); Wellons v. Comm’r Ga. Dep’t of Corr., 

, 1265 (11th Cir. 2014)
(affirming the denial of injunctive relief and declaratory judgment and denying a stay
of execution when prisoner did not sufficiently allege that the use of compounded
pentobarbital in the state’s execution protocol amounted to an Eighth Amendment
violation because “speculation that a drug that has not been approved will lead to
severe pain or suffering ‘cannot substitute for evidence that the use of the drug is sure
or very likely to cause serious illness and needless suffering’” (quoting Mann v.
Palmer, 

, 1315 (11th Cir. 2013)).

                                            4.

       The prisoners have failed to include factual allegations in the second amended
complaint which permit the reasonable inference that Missouri’s lethal-injection
protocol is “sure or very likely” to create a substantial risk of severe pain. Accepting
the factual allegations in the complaint as true, the prisoners fail to satisfy their burden
under the Eighth Amendment because they rely entirely on hypothetical and
speculative harms that, if they were to occur, would only result from isolated mishaps.
Like the prisoner in Cook, the prisoners here fail to make any specific factual
allegations regarding the production of the pentobarbital that would lead to its
contamination, potency problems, or improper pH, and instead rely on general risks
associated with compounding pharmacies. Without such specific allegations, the
prisoners’ complaint contains no more than speculative and hypothetical generalized
assertions about the nature of compounding pharmacies. Likewise, the prisoners’
allegation describing concerns arising from the method of venous access selected by
the State amounts to no more than speculation. In sum, the prisoners have failed to
plead sufficient factual matter, consistent with Twombly and Iqbal, necessary to state
a plausible claim for relief. We conclude, therefore, that their claim regarding the
substantial risk of severe pain allegedly imposed by Missouri’s execution protocol is
inadequately pled as a matter of law.

                                           -14-
                                           B.

      Prisoners challenging a method of execution must do more than allege a
substantial risk of serious harm to state a claim under the Eighth Amendment. As we
explained in 

-96, to establish a constitutional violation, an
inmate ultimately must prove that another execution procedure exists that is feasible
and readily implemented, and that the alternative method will significantly reduce a
substantial risk of severe pain. 

-96; see 

(plurality opinion); 

(Alito, J., concurring); Raby v. Livingston, 

, 560-61 (5th Cir. 2010); Cooey v. Strickland, 

, 220 (6th Cir. 2009).
The existence of such an alternative method of execution, therefore, is a necessary
element of an Eighth Amendment claim, and this element—like any element of a
claim—must be pleaded adequately.

       To address this point, the prisoners’ second amended complaint merely
“concede[s] that other methods of lethal injection the Department could choose to use
would be constitutional.” R. Doc. 338, at 148. In our view, this “concession” is
insufficient to allege the second element of an Eighth Amendment claim that
challenges a method of lethal injection. The complaint does not assert that the “other
methods of lethal injection” it references are feasible and readily implemented, or that
they would significantly reduce a substantial risk of severe pain allegedly caused by
the present method. Even a barebones allegation to that effect, moreover, would not
be adequate: a “formulaic recitation of the elements of a cause of action” is
insufficient to state a claim under Rule 8(a)(2). 

. The pleading
must include “sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” 

marks omitted). The second amended
complaint includes no factual matter that even hints at how the State—drawing on
feasible and readily implemented alternatives—could modify its lethal-injection
protocol to reduce significantly the alleged substantial risk of severe pain. We
therefore agree with the district court that the prisoners’ “naked assertion” that other

                                          -15-
methods would be constitutional, devoid of further factual enhancement, fails to state
a claim under the Eighth Amendment.

       The prisoners respond that the Supreme Court’s decision in Hill v. McDonough,

(2006), illustrates the sufficiency of their complaint. The issue in Hill
was whether a prisoner’s challenge to the constitutionality of Florida’s lethal-injection
protocol could proceed as an action for relief under 42 U.S.C. § 1983, or whether it
must be brought as an action for a writ of habeas corpus under 28 U.S.C. § 2254. 

Hill’s complaint conceded that “other methods of lethal injection the
Department could choose to use would be constitutional,” and the State had not
argued that enjoining the present method “would leave the State without any other
practicable, legal method of executing Hill by lethal injection.” 

The Court
held under those circumstances that the action could proceed under § 1983, because
“Hill’s action if successful would not necessarily prevent the State from executing him
by lethal injection.” 

      In reaching that conclusion, the Hill Court rejected a suggestion from the
United States that a prisoner seeking to proceed under § 1983 rather than through
habeas corpus must identify an alternative, authorized method of execution. 

The Court explained that it would not impose a “heightened pleading
requirement[]” as a prerequisite to the prisoner proceeding under § 1983, because
“[s]pecific pleading requirements are mandated by the Federal Rules of Civil
Procedure, and not, as a general rule, through case-by-case determinations of the
federal courts.” 

(citing Fed. R. Civ. P. 8, 9; Swierkiewicz v. Sorema N.A.,

, 512-14 (2002)).

      The Hill opinion’s references to Rule 8 and Swierkiewicz, and a later citation
of Hill in Jones v. Bock, 

, 213 (2007), have prompted our careful
consideration. We think the better reading, however, is that Hill did not address the
elements of a successful claim under the Eighth Amendment or establish that Hill’s

                                          -16-
complaint stated a claim that would survive a motion to dismiss. The question
decided in Hill concerned only the cognizability of a complaint under § 1983, as
opposed to habeas corpus. The Court said specifically that “the merits of Hill’s
underlying action are . . . not before us.” 

. Whether Hill’s
complaint stated a claim for relief under Rule 8 and the Eighth Amendment is a
question that “goes to the merits” of the underlying action. Bond v. United States, 

, 2362 (2011). It was not until two years after Hill, in Baze, when the
Court eventually addressed the substance of the Eighth Amendment and the elements
of a claim challenging a lethal-injection protocol. Jones, also decided before Baze,
simply reaffirmed a proposition with which we do not quarrel—i.e., that specific
pleading requirements are mandated by the federal rules and generally not through
case-by-case determinations of the 

. We disagree with Judge
Shepherd, post, at 44, and the dissenting judges, post, at 38-40, that requiring a
plaintiff to plead the elements of an Eighth Amendment claim as defined in Baze is
a “heightened pleading requirement” that exceeds the requirements of Rule 8 as
explained in Iqbal and Twombly.6

      The inference that Hill did not address the sufficiency of Hill’s complaint is
strengthened by the opinions in Baze, where two Justices opined that “a method of
execution violates the Eighth Amendment only if it is deliberately designed to inflict


      6
       Judge Bye, post, at 40-41, suggests incorrectly that this court’s order denying
rehearing in Lombardi established that a prisoner could state an Eighth Amendment
claim without identifying a feasible alternative if he merely conceded that other
methods of lethal injection the State could choose to use would be constitutional. The
Lombardi order simply recited the concession made by the plaintiffs in Hill, and
observed that the plaintiffs in Lombardi did not make such an allegation. In re
Lombardi, 

, 905 (8th Cir. 2014). The order declared that “[w]e were not
required to address whether alleging that the current method of execution creates a
substantial risk of harm when compared to known and available alternatives, without
specifying an alternative, would be sufficient to state a claim in light of Hill and
Baze.” 

                                         -17-
pain.” 

(Thomas, J., concurring). Hill alleged only that Florida’s
method of execution created a risk of severe pain and that other unspecified methods
of execution would be constitutional; there is no indication in the opinion that he
alleged a deliberate design by the State of Florida to inflict pain during an execution.
That Hill was a unanimous opinion—joined by the concurring Justices in
Baze—fortifies our view that the decision addressed only cognizability under § 1983,
not the plausibility of the prisoner’s claim under Rule 8 and the Eighth Amendment.

       The prisoners contend alternatively that the rule announced in Baze applies only
where—as in Baze itself—a prisoner alleges that a lethal-injection protocol is
unconstitutional because the State easily could change to an alternative method of
execution that is likely to reduce a significant risk of pain. We think that is an
implausible reading of the Baze plurality opinion. On the prisoners’ view, a plaintiff
who alleges a significant risk of severe pain and an alternative that would reduce the
risk must satisfy the Baze standard for an alternative method of execution, but a
prisoner who alleges only a significant risk of severe pain need not propose an
alternative method. The suggested rule would render the Baze plurality’s extensive
discussion of alternative methods superfluous, and we are loathe to assume that the
plurality engaged in such a meaningless exercise. See 

.

      The prisoners also urge that the Supreme Court’s grant of a stay of execution
in Bucklew v. Lombardi, 

(2014), “repudiates the rule of Lombardi,”
and shows that a prisoner need not allege an alternative method of execution to state
a claim under the Eighth Amendment. In May 2014, the Court granted a stay of
Russell Bucklew’s execution pending appeal in an order that stated as follows:

      Application for stay of execution of sentence of death presented to
      Justice ALITO and by him referred to the Court treated as an application
      for stay pending appeal in the United States Court of Appeals for the
      Eighth Circuit. Application granted pending disposition of petitioner’s


                                         -18-
      appeal. We leave for further consideration in the lower courts whether
      an evidentiary hearing is necessary.

brief order does not address the substance of Bucklew’s appeal or
the basis for possible success on the merits. Although Bucklew urged that the district
court erred in requiring him to allege a feasible and more humane method of
execution, he also asserted that “[t]o the extent that this Court, or any lower court,
believes that pleading an ‘alternative method’ is necessary, Mr. Bucklew has indeed
proposed an ‘alternative.’” App. 821-22. The unexplained order in Bucklew thus does
not resolve whether the prisoners must plead the existence of an alternative method
of execution that meets the criteria of Baze.

       The prisoners further contend that they cannot propose a reasonably available
alternative method of execution without discovery of information about the State’s
present suppliers of lethal drugs, so the Lombardi rule is unworkable in practice. We
doubt the rule is as “unworkable” as the prisoners suggest. Their complaint is
accompanied by affidavits from experts who criticize the use of compounded
pentobarbital as a lethal drug. These or similar experts presumably are in a position
to know and to inform the prisoners whether some other lethal drug exists that would
significantly reduce the alleged risk of pain arising from the current method. In any
event, the Supreme Court has rejected the notion that discovery must be available to
a plaintiff who cannot allege sufficient factual matter to suggest plausibly an
entitlement to relief. See 

. “Rule 8 marks a notable and
generous departure from the hyper-technical, code-pleading regime of a prior era, but
it does not unlock the doors of discovery for a plaintiff armed with nothing more than
conclusions.” 

-79.




                                        -19-
        Although policy reasons do not justify imposing a heightened pleading
requirement, see 

, “the practical significance of the Rule
8 entitlement requirement” should not be ignored. 

. In
Twombly, the Court illustrated the practical significance of the Rule 8 requirement by
adverting to the high cost of discovery in antitrust cases and the modest success of
judicial supervision in checking discovery abuse. 

In this capital
litigation, it should be remembered that one stated objective of the prisoners’ lawsuit
is to pressure the State’s suppliers and agents to discontinue providing the drugs and
other assistance necessary to carry out lawful capital sentences. The second amended
complaint alleges that confidentiality of the States’ drug manufacturers and suppliers
“prevents the . . . suppliers’ associations, customers, and prescribing or referring
physicians from censuring or boycotting them,” and that protecting the identity of the
State’s health care professionals unreasonably restricts their “associations and
colleagues from de-certifying or otherwise censuring them or boycotting them.” R.
Doc. 338, at 140-41.

       In this very case, after the State’s former drug supplier was identified through
information in the public domain, a Missouri prisoner sued the supplier in Oklahoma.
The supplier then elected to discontinue providing drugs to the State rather than
endure the expense and burdens of litigation. R. Doc. 353, at 1-2, 10-13, 190-93. As
for the possibility of protecting the confidentiality of sensitive identities after
discovery in litigation, counsel for the prisoners expressed concern that it could be
very difficult to investigate the physician, pharmacist, and laboratory without
disclosing their roles in the execution process, and suggested there were “many ways
in which investigating the pharmacy might place the pharmacy’s identity, status, and
role at issue before whoever we would be talking to.” R. Doc. 224, at 12-16. The
district court acknowledged that “it may be that there’s just no way given the
circumstances to keep it confidential because of the central nature of these people to
the current dispute.” 

                                         -20-
       The real potential that unwarranted discovery would serve as a back-door means
to frustrate the State’s ability to carry out executions by lethal injection counsels in
favor of careful adherence to the requirements of Rule 8, as explicated in Iqbal and
Twombly. A groundless Eighth Amendment claim should not be permitted to achieve
indirectly a de facto injunction against a lawful method of execution.

       For these reasons, we adhere to our conclusion in Lombardi that without a
plausible allegation of a feasible alternative method of execution that would
significantly reduce a substantial risk of serious pain, or a purposeful design by the
State to inflict unnecessary pain, the prisoners have not stated an Eighth Amendment
claim based on the State’s use of compounded pentobarbital in executions. We further
conclude that the allegation in the second amended complaint that “other methods of
lethal injection the Department could choose would be constitutional” does not
contain sufficient factual matter to state a claim to relief that is plausible on its face.
The district court thus properly dismissed the prisoners’ Eighth Amendment claim.7




      7
        Judge Shepherd, while voting to affirm, also files a “dissenting” opinion on the
ground that Part II.B is unnecessary to the decision. It is not uncommon for courts to
decide cases on alternative grounds, e.g., United States v. Farlee, 

, 820
(8th Cir. 2014), and the Supreme Court recently noted the “unremarkable proposition”
that a court’s decision to rely on one of two possible alternative grounds does not strip
it of power to decide the second question, particularly when the court’s decree is
subject to review by the Supreme Court. Already, LLC v. Nike, Inc., 

,
729 (2013). Given our conclusion in Part II.B, moreover, it could just as well be said
that Part II.A concerning the complaint’s allegations of a substantial risk of severe
pain is unnecessary. Indeed, this court in Lombardi (joined by Judge Shepherd)
concluded that a previous complaint filed by the prisoners failed to state a claim solely
because the prisoners did not make a sufficient allegation about an alternative method
of 

.
                                           -21-
                                           III.

       The prisoners next argue that they have a serious medical need to be free from
gratuitous pain during their executions, and that the state officials act with deliberate
indifference to their need by using compounded pentobarbital as the lethal drug in the
State’s execution procedure. The district court rejected this claim on two grounds: (1)
that the officials are not addressing medical needs of the prisoners in carrying out
executions, and (2) that the prisoners have not pleaded adequately that the State’s
lethal-injection protocol inflicts unnecessary pain in violation of the Eighth
Amendment.

       Assuming without deciding that an Eighth Amendment deliberate-indifference
claim based on medical needs is not limited to cases involving medical procedures,
see Nelson v. Campbell, 

, 644-45 (2004); 

, we
agree with the district court that the prisoners have not stated a claim. The Eighth
Amendment protects against the “unnecessary and wanton infliction of pain.” Estelle
v. Gamble, 

, 104 (1976). A prisoner must allege both that a deprivation
of rights is “objectively, sufficiently serious,” and that a state official is deliberately
indifferent to inmate health or safety. 

(internal quotation
omitted). For reasons discussed in Part II, the prisoners have not pleaded that the use
of compounded pentobarbital will result in the unnecessary and wanton infliction of
pain.

                                           IV.

       The prisoners contend that the state officials violated the Ex Post Facto Clause
of the federal Constitution when they changed the execution protocol to provide for
the use of compounded pentobarbital, because the change allegedly increased the risk
of a painful execution. The Ex Post Facto Clause forbids enactment of a “law that
changes the punishment, and inflicts a greater punishment, than the law annexed to

                                           -22-
the crime, when committed.” Cal. Dep’t of Corr. v. Morales, 

, 516
(1995) (quoting Calder v. Bull, 

, 390 (1798)). The prisoners’ claim fails
in light of Lombardi, where this court held that an identical ex post facto claim
asserted in an earlier complaint failed to state a 

. We
reasoned that “[t]he manner of punishment for capital murder in Missouri at all
relevant times . . . has been death by lethal injection or lethal gas.” 

(citing Mo. Rev. Stat. § 546.720.1). Where, as here, “only the mode of
producing death has changed, with no allegation of superadded punishment or
superior alternatives, the Ex Post Facto Clause[ is] not implicated.” 

(internal quotation mark omitted).

        The prisoners also complain that they did not have fair notice that Director
Lombardi could change the method of execution to include compounded
pentobarbital, because that method allegedly violates the federal Food, Drug, and
Cosmetics Act and the Controlled Substances Act. The prisoners note Lombardi’s
statement that when the prisoners committed their crime, they “had fair notice” that
death was the prescribed punishment, and fair notice “of the Director’s discretion to
determine the method of 

. The Ex Post Facto Clause,
however, is concerned with “lack of fair notice and governmental restraint when the
legislature increases punishment beyond what was prescribed when the crime was
consummated.” Weaver v. Graham, 

, 30 (1981). Whether the prisoners
had specific notice that the Director might select a particular lethal drug is not
dispositive, so long as the State has not increased the punishment for the offenses of
conviction. We therefore adhere to our conclusion in Lombardi that the prisoners fail
to state a plausible ex post facto claim because the punishment—death—has remained
the same; “only the mode of producing death has changed,” and the prisoners have not
alleged “superadded punishment or superior 

(internal
quotation mark omitted).




                                        -23-
                                           V.

       The prisoners next contend that the Missouri state officials violated their right
of access to the courts under the Due Process Clause by failing to provide them with
the timely and adequate notice of the proposed execution method needed to litigate
the lawfulness of the execution protocol. We agree with the district court that the
prisoners failed to state a claim based on alleged infringement of their right to access
the courts. State prisoners have a constitutional “right of access to the courts,” Lewis
v. Casey, 

, 350 (1996) (emphasis omitted), but this right does not
guarantee the ability “to discover grievances, and to litigate effectively once in court.”

The right of access to the courts is satisfied if the prisoner has “the
capability of bringing contemplated challenges to sentences or conditions of
confinement before the courts.” 

. The prisoners’ claim that
they are unable to discover information regarding the execution protocol is thus
insufficient as a matter of law to state a due process claim. 

;
Williams v. Hobbs, 

, 851-52 (8th Cir. 2011); Giarratano v. Johnson, 

, 306 (4th Cir. 2008). “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.” 

.

       On appeal, the prisoners present a new argument—that their “life interest
entitles them to notice of material information about the lethal drug with which they
will be executed.” They rely on the procedural due process decision of Mathews v.
Eldridge, 

(1976), and urge that the private interests served by disclosure
and the risk of an erroneous deprivation of rights without disclosure outweigh the
State’s interest in avoiding disclosure of details about the lethal drug and its
provenance.




                                          -24-
       The prisoners did not develop an argument based on Mathews in the district
court, and it is too late to raise it for the first time on appeal. In any event, the analogy
to Mathews is inapt. Mathews involved an undisputed deprivation of a property
interest (denial of social security benefits), and the question was whether the claimant
was entitled by the Due Process Clause to a pre-deprivation hearing as opposed to
merely a post-deprivation hearing. 

The prisoners in this case already
have received due process for the deprivation of their life interests: They were
convicted and sentenced to death after a trial in Missouri court, and their convictions
and sentences were upheld on appeal.

       At this point, the prisoners seek to discover information about the State’s lethal-
injection protocol in order to determine whether the protocol violates the Eighth
Amendment. The prisoners, however, have not pleaded a deprivation of rights under
the Eighth Amendment. This is not a case like Mathews, therefore, where there was
an undisputed deprivation of an interest protected by the Due Process Clause, and the
question was what process is due before the State may accomplish the deprivation.

prisoners here—like the plaintiffs in 

, and
Sepulvado v. Jindal, 

, 419-20 (5th Cir. 2013)—claim a freestanding right
to detailed disclosure about Missouri’s execution protocol. We agree with the
Eleventh and Fifth Circuits that the Constitution does not require such disclosure.

; 

. A prisoner’s “assertion
of necessity—that [the State] must disclose its protocol so he can challenge its
conformity with the Eighth Amendment—does not substitute for the identification of
a cognizable liberty interest.” 

.

                                            VI.

      The prisoners next press a claim that the Missouri officials violate the Equal
Protection Clause by executing prisoners while legal activity seeking to stay their
executions is pending, because the practice contravenes the State’s written

                                            -25-
Chronological Sequence of Execution policy. They cite the executions of Joseph
Franklin, Alan Nicklasson, and Herbert Smulls, which were carried out while a
pleading was pending in the district court, the court of appeals, or the Supreme Court.
The prisoners’ theory is that forestalling executions until all litigation is finished is a
“core” provision of the execution protocol, and that deviating from a “core” provision
violates their rights to equal protection of the laws.

      The relevant portion of the execution policy provides that at 11:15 p.m. on the
eve of an execution:

      Director of the Department of Corrections/designee advises (ERDCC
      Warden) that (Inmate Name) may be escorted to the execution room if
      no stay is in place and no legal activity is in progress to prevent the
      execution.

      If there is pending legal activity to halt the execution process, (Inmate
      Name) will remain in his holding cell and there will be no IV or line
      established until authority is granted to do so by the Director of the
      Department of Corrections/designee.

App. 335-36.

       The prisoners contend that the policy permits the Director to grant the Warden
authority to escort a prisoner from his cell to the execution chamber only if there is no
legal activity in progress designed to halt the execution. They reason that if the
second paragraph of the policy allowed the Director to initiate an execution procedure
even while legal proceedings were pending, then the first paragraph concerning
actions taken when “no legal activity is in progress” would be superfluous.

       The prisoners’ reading of the policy is unlikely: It would allow an inmate to
thwart the State’s ability to carry out a lawful sentence simply by making repeated
court filings designed to prevent an execution during the 24-hour period designated

                                           -26-
by the Supreme Court of Missouri for carrying out the sentence. One can imagine
counsel for a prisoner even asserting an ethical obligation to ensure that some legal
activity remains in progress for a full twenty-four hours. We are skeptical of an
interpretation of the State’s policy that could effectively foreclose the State’s ability
to carry out lawful sentences.

       The policy is not a model of clarity, but it should not be understood to forbid
an execution whenever there is pending legal activity designed to stop the execution.
The policy does not expressly require the Director to refrain from carrying out a
sentence until legal activity has ceased. To the contrary, the second paragraph quoted
above contemplates that the Director may grant the Warden authority to begin
preparations for an execution even when legal activity is ongoing. The first quoted
provision—that the Director may advise the Warden to escort the inmate to the
execution room if no legal activity is in progress—applies by its terms only at 11:15
p.m. on the eve of a date of execution. The chronology does not address a
circumstance in which legal activity delays an execution until later in the 24-hour
period. The second quoted paragraph implies that the Director retains authority to
begin preparations for an execution at a later time despite ongoing legal activity. The
prisoners do not allege that the officials have escorted inmates to the execution room
on the eve of the execution while legal activity is pending: In the cases of Franklin,
Nicklasson, and Smulls, a district court or a panel of this court entered a stay of
execution that was later vacated, and the State eventually proceeded later in the 24-
hour period authorized for the execution. We therefore conclude that the prisoners
have not stated a claim under the Equal Protection Clause based on alleged violations
of the Department’s execution policy.

       Assuming for the sake of analysis, however, that the state officials deviate from
the execution protocol by carrying out sentences while legal activity is pending, the
practice does not violate the Constitution. “The Equal Protection Clause of the
Fourteenth Amendment commands that no State shall ‘deny to any person within its

                                          -27-
jurisdiction the equal protection of the laws,’ which is essentially a direction that all
persons similarly situated should be treated alike.” City of Cleburne v. Cleburne
Living Ctr., 

, 439 (1985). “If a legislative classification or distinction
neither burdens a fundamental right nor targets a suspect class, we will uphold it so
long as it bears a rational relation to some legitimate end.” Vacco v. Quill, 

, 799 (1997) (internal quotation marks and brackets omitted).

        The prisoners apparently invoke the “fundamental right” strand of equal
protection analysis. They argue that it is unconstitutional for the State to disregard a
“core provision” of its execution protocol, and that a prohibition on executions before
legal activity has ceased is a “core provision.” The prisoners draw the term “core
provision” from two decisions of a district court concerning Ohio’s execution
protocol. See Cooey v. Kasich, 

(S.D. Ohio 2011); In re Ohio
Execution Protocol Litig., 

(S.D. Ohio), aff’d, 

(6th
Cir. 2012). The Ohio district court reasoned that because certain “core” provisions
of the State’s execution protocol were the “precise procedural safeguards” that had
been “heralded in prior discussions of Eighth Amendment claims” in the same
litigation, “core deviations” from the protocol burdened a prisoner’s “fundamental
right” for purposes of equal protection analysis. 

.
The court thought certain “core deviations . . . subverted the key constitutional
principles that control the execution process.” In re Ohio Execution Protocol 

. See also Arthur v. Thomas, 

, 1263 (11th Cir.
2012) (concluding that an inmate stated an equal protection claim by alleging that the
State of Alabama substantially deviated from an execution protocol, because
“[s]ignificant deviations from a protocol that protects inmates from cruel and unusual
punishment can violate the Eighth Amendment”).

       Whatever the merits of the Ohio district court’s analysis with regard to the
execution protocol at issue in those decisions, the prisoners here have not stated a
claim that Missouri’s alleged deviations from its protocol burden a fundamental right.

                                          -28-
There is no “fundamental right” to avoid execution while no judicial stay is in effect
but legal activity is pending. E.g., Hamilton v. Texas, 

(1990) (denying
stay of execution despite four votes to grant writ of certiorari). Fundamental rights
consist of only those rights that are “explicitly or implicitly guaranteed by the
Constitution.” San Antonio Indep. Sch. Dist. v. Rodriguez, 

, 32-34 (1973).
The State’s decision to carry out a lawful sentence when there is no judicial stay in
place does not burden a prisoner’s rights under the Eighth Amendment or other
constitutional provision. If a prisoner advances an eleventh-hour challenge to an
execution, the courts have authority to enter temporary administrative stays of
execution when necessary and appropriate to allow consideration of constitutional
claims. The State may deem it prudent to delay an execution while litigation is
pending, especially when final resolution is likely to occur before time expires for
carrying out the sentence on the appointed date. But the Constitution does not require
the State to implement a self-imposed stay when a state or federal court has declined
to act.

                                        VII.

       The prisoners also argue that they stated a claim that the First Amendment
entitles them to information regarding the source of the drug to be used in their
executions. A Missouri statute, Mo. Rev. Stat. § 546.720.2, provides that “[t]he
identities of members of the execution team, as defined in the execution protocol of
the department of corrections, shall be kept confidential.” The prisoners contend that
the statute violates their First Amendment rights insofar as it permits Missouri to
conceal the identity of the compounding pharmacy that provides the pentobarbital and
the identities of the pharmacy’s suppliers of ingredients for the compounding process.
The prisoners argue that concealing this information violates their right of access to
records associated with governmental execution proceedings and constitutes an
impermissible content-based restriction on access to information.



                                        -29-
      A divided panel of the Ninth Circuit, considering a comparable First
Amendment claim, recently enjoined the execution of an Arizona inmate until the
State provided him with the name and provenance of drugs to be used in his
execution. The Supreme Court promptly vacated the injunction without dissent.
Wood v. Ryan, 

, 1088 (9th Cir.), vacated, 

(2014). The
Eleventh Circuit has ruled that the First Amendment does not grant a prisoner a right
“to know where, how, and by whom the lethal injection drugs will be manufactured.”

. See also Owens v. Hill, 

, 805-06 (Ga.
2014). We agree with the Eleventh Circuit and the dissenting opinion in the Ninth
Circuit and conclude that the prisoners failed to state a claim under the First
Amendment.

        The Supreme Court held in Press-Enterprise Co. v. Superior Court, 

, 8-13 (1986), that the public enjoys a qualified right of access to certain criminal
proceedings. The Court has recognized this right of access in preliminary hearings,

criminal trials, Richmond Newspapers, Inc. v. Virginia, 

, 579-80
(1980), and voir dire, Press-Enterprise Co. v. Superior Court, 

, 505-11
(1984). This court has held that the First Amendment right of access applies to some
records filed in criminal proceedings—specifically, documents filed in support of
search warrant applications—see In re Search Warrant for Secretarial Area Outside
Office of Gunn, 

, 572-73 (8th Cir. 1988), but unlike the Ninth Circuit, we
have not ruled that an execution constitutes the kind of criminal proceeding to which
the public enjoys a qualified right of access under the First Amendment. Cf. Cal. First
Amendment Coal. v. Woodford, 

, 877 (9th Cir. 2002).

      Assuming for the sake of analysis, however, that the Press-Enterprise analysis
applies to executions, and even to information regarding the source of drugs to be
used in lethal injections, the prisoners fail to state a claim for a qualified right of
public access. To determine whether a First Amendment public right of access
attaches to a particular proceeding, courts consider “whether the place and process

                                         -30-
have historically been open to the press and general public” and “whether public
access plays a significant positive role in the functioning of the particular process in
question.” 

. In Press-Enterprise, the Court evaluated
whether the preliminary hearings at issue had a “tradition of accessibility” under the
first prong of the analysis, and concluded that from the early nineteenth century “until
the present day, the near uniform practice of state and federal courts has been to
conduct preliminary hearings in open 

.

       The prisoners assert that they have a similar right to know the identities of the
pharmacy that compounds the pentobarbital and of its suppliers of chemicals, yet they
fail to allege a “tradition of accessibility” to that information. We have reserved
judgment about whether even an execution itself must be made public, Rice v.
Kempker, 

, 678 n.2 (8th Cir. 2004), and the prisoners have not alleged
facts or cited authority establishing that the particulars of execution methods have
“historically been open to the press and general public.” 

. The prisoners have alleged only that Missouri did not include the suppliers of
drugs for lethal injections as members of the confidential execution team before
October 2013. That the identities of the drug suppliers were not made confidential by
statute or regulation before October 2013 falls well short of the required “tradition of
accessibility” that might give rise to a right of access. Indeed, the prisoners do not
even allege that the information was accessible to the public before October 2013.
Even if the prisoners can show, moreover, that Missouri “at one time voluntarily
disclosed such information, it does not a tradition make.” 

(Bybee, J., dissenting). In sum, the prisoners fail to state a claim of a qualified right
of public access to information regarding the source of the compounded pentobarbital
to be used in their executions because they do not plausibly allege a history of
openness to the general public. The complaint likewise provides no basis to conclude
that public access to detailed information about execution protocols plays a significant
positive role in the functioning of the process in question, given that the practical



                                          -31-
effect of public disclosure would likely be frustration of the State’s ability to carry out
lawful sentences.

       The prisoners also argue that the confidentiality requirements of § 546.720.2
constitute a content-based restriction on access to information that merits strict
scrutiny. They rely on Sorrell v. IMS Health Inc., 

(2011), where the
Court held that a Vermont law prohibiting the sale and use of pharmaceutical
prescriber-identifying information was a restriction on “speech with a particular
content,” because sale of that information was permitted in certain exceptional
situations “based in large part on the content of a purchaser’s speech,” and subsequent
use of the information was limited to non-marketing purposes. 

The
Missouri statute challenged by the prisoners is different. The statute does not limit the
dissemination of identities of execution team members based on the identity of the
individual seeking that information and the likely content of that individual’s speech,
and the law does not limit the use of any such information to certain types of speech.
The prisoners thus fail to state a claim that § 546.720.2 is a content-based restriction
on access to information that merits strict scrutiny.

                                          VIII.

       The prisoners complain that the use of compounded pentobarbital as a lethal
drug in executions violates the federal Food, Drug, and Cosmetic Act, 21 U.S.C.
§§ 301, et seq., and the Controlled Substances Act. 21 U.S.C. §§ 801, et seq. They
acknowledge, however, that there is no private right of action under federal law to
enforce these alleged violations. 23 U.S.C. § 337(a); Buckman Co. v. Plaintiffs’ Legal
Comm., 

, 349 n.4 (2001); Durr v. Strickland, No. 2:10-cv-288, 

, at *2-3 (S.D. Ohio), aff’d, 

, 789 (6th Cir. 2010) (affirming
district court’s holding that no private right of action exists under the Controlled
Substances Act). Instead, they assert that the Missouri Administrative Procedure Act



                                           -32-
gives them a private right of action to sue for alleged violations of the federal statutes.
The district court ruled that the prisoners failed to state a claim.

      Under the Missouri APA, where there is no formal hearing before a state
agency in a contested case, a court may review a decision of an administrative officer
or body that “determin[es] the legal rights, duties or privileges of any person.” Mo.
Rev. Stat. § 536.150.1; see City of Valley Park v. Armstrong, 

, 506-07
(Mo. 2009) (en banc); State ex rel. Yarber v. McHenry, 

, 327-28 (Mo.
1995) (en banc). The court may determine whether the decision is “unconstitutional,
unlawful, unreasonable, arbitrary, or capricious or involves an abuse of discretion.”
Mo. Rev. Stat. § 536.150.1.

       The prisoners fail to state a claim under the Missouri APA because they have
not alleged that the decision of corrections officials to adopt the execution protocol
determines their “legal rights, duties or privileges.” “Section 536.150 pertains only
to review of decisions affecting private rights and interests.” St. Louis Cnty v. State
Tax Comm’n, 

, 414 (Mo. 1980) (en banc). “[T]o make a prima facie
case under Section 536.150, an individual must plead facts that, if true, would show
that he has been denied some legal right or entitlement to a privilege.” McIntosh v.
LaBundy, 

, 416 (Mo. Ct. App. 2005). The plaintiff must thus identify
a “rule, statute, or other authority creating a legal right or entitlement.” 

       The prisoners allege a right not to “be executed in a manner that violates federal
laws protecting the end-users of regulated pharmaceuticals.” They fail, however, to
identify a statute or other authority that creates a private legal right or entitlement.
The federal statutes cited in the complaint do not create private rights of action. The
prisoners cannot employ the Missouri APA to allege the denial of a private legal right
under the federal statutes when the federal statutes themselves do not create such a
private legal right.



                                           -33-
                                    *       *       *

      The judgment of the district court is affirmed.

BYE, Circuit Judge, with whom MURPHY and KELLY, Circuit Judges, join,
dissenting.

      The constitutionality of the death penalty itself is not before us in this case, and
we proceed on the assumption the death penalty is constitutional. While it follows
there must be a constitutional means of carrying out a death sentence, it has not been
determined that Missouri's current execution protocol is constitutional. The district
court erred in dismissing the death-row inmates' suit, and the death-row inmates
should have the opportunity to conduct discovery and fully litigate their claims. I
therefore respectfully dissent.

                                            I

       I disagree with the entirety of Part II of the majority's opinion, which dismisses
the death-row inmates' Eighth Amendment claim. The majority provides two
alternative reasons for dismissing the suit: (1) as a matter of law, the death-row
inmates' claim regarding the substantial risk of severe pain imposed by Missouri's
execution protocol is inadequately pled; and (2) the death-row inmates have failed to
adequately plead a readily-available alternative method of execution.

                                            A

      The majority first holds the death-row inmates have failed to plead sufficient
factual matter on the risk of harm to state a plausible claim of relief. Federal Rule of
Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim
showing that the pleader is entitled to relief." To withstand the State's Rule 12(b)(6)


                                          -34-
motion, the complaint must contain sufficient factual allegations to "state a claim to
relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 

, 547
(2007). "Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice." Ashcroft v. Iqbal, 

, 678 (2009)
(citing 

).

       "[T]aking all facts alleged in the complaint as true, and making reasonable
inferences in favor of the nonmoving party," the death-row inmates have sufficiently
pled their Eighth Amendment claim. Smithrud v. City of St. Paul, 

, 397
(8th Cir.) cert. denied, 

(2014). The death-row inmates' complaint
alleges the compounded pentobarbital used by Missouri creates a substantial risk of
harm and inflicts a substantial risk of severe pain. The death-row inmates have also
shown the risk of pain is objectively intolerable.

       The death-row inmates' second amended complaint includes thirty-two attached
exhibits, including declarations and affidavits from medical professionals. The
pleadings demonstrate substantial concerns with compounded pentobarbital, including
potency levels, contamination, pH levels, and shelf-life. Despite such pleadings, the
majority concludes these potentialities are hypothetical and do not "rise[] to the level
of 'sure or very likely' to cause serious harm or severe pain." The majority takes
offense at the death-row inmates' "allegations of generalized harms" from
compounded pentobarbital, but such allegations are exactly what must be pled to
survive a Rule 12(b)(6) motion to dismiss. Rule 8 only requires "a short and plain
statement" showing the death-row inmates are entitled to relief. No higher pleading
standard is applicable to this suit. Cf. Fed. R. Civ. P. 9(b) (establishing heightened
pleading standards in certain cases, such as fraud or mistake). The death-row inmates
could not possibly include allegations more specific to the compounding done for or
by Missouri without the benefit of discovery. To know about Missouri's particular
compounding procedure and the particular dangers of such a procedure, the death-row
inmates need discovery about the various sources of the drugs, how the drugs are


                                         -35-
compounded, whether the compounded drugs are tested for potency, contamination,
or pH levels, and how and for how long the compounded drugs are stored. Missouri
has steadfastly refused to disclose any information related to the compounded
pentobarbital. See e.g., In re Lombardi, 

, 889 (8th Cir.), reh'g denied,

(8th Cir.) and cert. denied sub nom. Zink v. Lombardi, 

(2014) (ruling in favor of Missouri in an appeal "to prohibit the district court from
enforcing orders that [the State] must disclose in civil discovery, for use by opposing
counsel, the identities of (1) the physician who prescribes the chemical used in
Missouri executions, (2) the pharmacist who compounds the chemical, and (3) the
laboratory that tests the chemical for potency, purity, and sterility"). It is not the
death-row inmates' burden at the pleading stage to show their claims are "sure or very
likely;" the death-row inmates must merely show they have stated a claim for relief.

       The majority is unconcerned with expert opinions and a host of other evidence
which shows improperly compounded pentobarbital would "sure or very likely" cause
unconstitutionally painful deaths. The majority acknowledges this evidence exists but
focuses on the one thing the death-row inmates cannot know at this stage: "specific
factual allegations regarding the production of the pentobarbital" to be used in their
executions. Because the death-row inmates have adequately pled that improperly
compounded pentobarbital is sure or very likely to cause pain and suffering at an
unconstitutional level, the death-row inmates have pled enough to survive a motion
to dismiss under Rule 12(b)(6). Thus, the death-row inmates should be allowed to
utilize discovery in the normal course of litigation to determine the actual process used
by Missouri's current compounding pharmacies.

                                           B

       In an alternative holding on the death-row inmates' Eighth Amendment claim,
the majority finds the death-row inmates failed to plead a specific readily-available
alternative method of execution and finds such a failure fatal to this suit. I disagree.


                                          -36-
        In Hill v. McDonough, 

, 576 (2006), the Supreme Court examined
whether a death-row inmate challenging Florida's execution protocol had a cognizable
suit under 42 U.S.C. § 1983, or whether such a claim needed to be brought under 28
U.S.C. § 2254. The Supreme Court clarified that a challenge to a state's execution
procedure may proceed under § 1983, particularly when a "[c]omplaint does not
challenge the lethal injection sentence as a general matter but seeks instead only to
enjoin [the State] from executing [the plaintiff] in the manner they currently intend."

(internal quotation marks omitted). In explaining the
requirements for a § 1983 challenge to execution protocols, the Supreme Court
considered and rejected the proposition that "a capital litigant's § 1983 action can
proceed [only] if . . . the prisoner identified an alternative, authorized method of
execution." 

In rejecting that proposition, the Supreme Court explained
"[i]f the relief sought would foreclose execution, recharacterizing a complaint as an
action for habeas corpus might be proper." 

heightened pleading
requirements, however, is quite a different matter. Specific pleading requirements are
mandated by the Federal Rules of Civil Procedure, and not, as a general rule, through
case-by-case determinations of the federal courts." 

R. Civ. P. 8 and
9; Swierkiewicz v. Sorema N.A., 

, 512-14 (2002)).

        A year later, the Supreme Court addressed the pleading requirements of
exhaustion under the Prison Litigation Reform Act in Jones v. Bock, 

(2007). The Supreme Court, relying on the Federal Rules of Civil Procedure and
rejecting a heightened pleading requirement, found the usual practice under the
Federal Rules should be followed in § 1983 suits. The Supreme Court thereafter
reaffirmed the pleading requirements for death-row inmates: "And just last Term, in
Hill . . . , we unanimously rejected a proposal that § 1983 suits challenging a method
of execution must identify an acceptable alternative." 

In addressing the
pleading requirements for death-row inmates challenging a method of execution, the
Supreme Court has been clear: there is no heightened pleading rule requiring inmates
to identify any alternative method of execution.


                                         -37-
        The majority dismisses these clear statements by the Supreme Court, and
instead relies on Baze v. Rees, 

(2008), to justify the imposition of a
heightened pleading standard. The Baze challenge to Kentucky's three-drug execution
protocol came to the Supreme Court in a declaratory judgment action after "[t]he trial
court held extensive hearings and entered detailed findings of fact and conclusions of
law." 

The death-row inmates in Baze, challenging Kentucky's execution
protocol, alleged a readily-available alternative. The Supreme Court held "a
condemned prisoner cannot successfully challenge a State's method of execution
merely by showing a slightly or marginally safer alternative." 

Rather, the
Supreme Court established that when an alternative method of execution is proposed,
"the proffered alternatives must effectively address a substantial risk of serious harm."

(internal quotation marks omitted). And, if a death-row inmate puts forward
such a proposed alternative, it must be "feasible, readily implemented, and . . .
significantly reduce a substantial risk of severe pain." 

not establish the standard for all execution-protocol challenges.
Instead, Baze establishes that when death-row inmates can show a readily-available
alternative with sufficient documented advantages, "a State's refusal to change its
method can be viewed as 'cruel and unusual' under the Eighth 

. Baze reaches no further than this holding. Baze did not purport to limit Eighth
Amendment challenges of execution protocols to only those cases where death-row
inmates propose an alternative method, and Baze did not change the pleading
requirements for Eighth Amendment cases.

       Despite the limited nature of Baze, the majority relies on Baze to establish that
death-row inmates must plead a feasible and readily-available alternative method of
execution. It is troubling the majority relies on Baze when Baze does not mention
pleading requirements or the Federal Rules of Civil Procedure. Webster v. Fall, 

, 511 (1925) ("Questions which merely lurk in the record, neither brought to
the attention of the court nor ruled upon, are not to be considered as having been so


                                          -38-
decided as to constitute precedents."). But perhaps most troubling is the majority's
reliance on Baze when Baze does not even mention Hill or Jones. Shalala v. Ill.
Council on Long Term Care, Inc., 

, 18 (2000) ("Th[e Supreme Court] does
not normally overturn . . . earlier authority sub silentio . . . .").

      The Supreme Court warns "that courts should generally not depart from the
usual practice under the Federal Rules on the basis of perceived policy concerns."

. Despite this rule, the majority bases its decision on policy
considerations: whether discovery and litigation would pressure Missouri's suppliers
and agents to discontinue providing the drugs for executions. The question of whether
discovery is appropriate or necessary is not currently before this court. Neither is the
question of an injunction about the potential harm the State might suffer from
disclosure of drug providers. The majority appears to impose a heightened pleading
standard for fear that this suit would otherwise eventually require the disclosure of
information which it fears would hamper Missouri's ability to carry out executions.
This is not a reason to impose a heightened pleading standard in opposition to
Supreme Court precedent and the Federal Rules of Civil Procedure.

       If policy concerns were relevant to the establishment of case-by-case pleading
standards, policy concerns would weigh in favor of allowing this suit to proceed. It
is troubling that under the majority's rule, the constitutionality of an execution method
is determined not by the pain and suffering caused by that method, but rather by what
resources a death-row inmate can garner to show an available alternative. If the
manufacturers of safer drugs were willing to provide Missouri with execution drugs,
Missouri's current execution protocol would likely be held unconstitutional. See

(discussing requirements for a § 1983 suit when an alternative
method of execution is readily available). In no other area do the private acts of third-
parties so influence the determination of whether a government act is unconstitutional.
Making it even more difficult for death-row inmates, they now must surpass these



                                          -39-
barriers at the pleading stage, rather than at the summary judgment stage after the
completion of discovery.

       Simply put, neither the Constitution nor the Federal Rules of Civil Procedure
require a plaintiff challenging the constitutionality of government actions to
simultaneously suggest a remedy–a remedy which cannot be to simply stop the
unconstitutional activity. Such a heightened pleading standard has not been required
in other constitutional cases, and should not be required here. Based on the foregoing
reasons, I dissent from the imposition of any heightened pleading standards when
death-row inmates challenge a state's method of execution.

                                           C

       Although I believe the pleading requirement imposed by the majority is an
incorrect application of the law, I recognize my position in the minority and therefore
find it prudent to comment on the resolution of this case. Even if the majority is
correct in imposing this additional pleading requirement, it is improper to dismiss the
death-row inmates' suit at this juncture. Rather, the matter should be remanded for the
death-row inmates to amend their complaint because the death-row inmates' second
amended complaint does, in fact, satisfy the pleading requirements previously
suggested by the Eighth Circuit.

       In my view, in denying rehearing in the case of In re Lombardi the Eighth
Circuit clarified that death-row inmates alleging an Eighth Amendment violation
based on the method of execution must, in their pleadings, (1) "concede[] that 'other
methods of lethal injection the Department could choose to use would be
constitutional,'" In re Lombardi, 

, 905 (8th Cir. 2014) (en banc) (quoting

); and (2) "allege[] 'that the challenged procedure presents a risk
of pain the State can avoid while still being able to enforce the sentence ordering a
lethal injection,'" 

, 547 U.S. at 581). In their second amended


                                         -40-
complaint, the death-row inmates "concede that other methods of lethal injection the
Department could choose to use would be constitutional." Zink v. Lombardi, No. 12-
4209, Doc. 338 at 202 (W.D. Mo. Feb. 2, 2014). Thus, the death-row inmates pleaded
exactly what In re Lombardi required of them: a concession "that other methods of
lethal injection the Department could choose to use would be 

(internal quotation marks omitted).

       The Eighth Circuit now changes, once again, the pleading requirements for an
Eighth Amendment claim. Because the death-row inmates complied with In re
Lombardi, and because the Eighth Circuit is for the first time imposing a stricter
pleading requirement, a remand is proper. The death-row inmates should have the
opportunity to plead a named alternative method before the complaint is dismissed.
However, in light of today's ruling dismissing the complaint, the death-row inmates,
if they choose to do so, will have to settle for initiating new litigation in the district
court and filing a complaint which complies with the newly-established pleading
standards. For example, if the death-row inmates desire, the death-row inmates could
propose as an available alternative an execution protocol using pentobarbital which
was properly compounded at an FDA-approved compounding pharmacy, and has
thereafter been tested for identity, potency, purity, and contamination.

                                            D

       The majority also extends the imposition of a heightened pleading requirement
beyond the death-row inmates' Eighth Amendment claims. Without an explanation
of this extension, the majority resolves the death-row inmates' medical needs claim
"[f]or reasons discussed in Part II." The majority also dismisses the death-row
inmates' due process claim at least in part based on the death-row inmates' failure to
"plead[] a deprivation of rights under the Eighth Amendment." I disagree with any
extension of the heightened pleading requirement, and dissent from these portions of
the majority's opinion.


                                          -41-
                                          III

      The majority opinion establishes heightened pleading requirements for death-
row inmates challenging a state's method of execution under the Eighth Amendment.
This imposition is in opposition to governing Supreme Court precedent and the
Federal Rules of Civil Procedure. In other words, the Eighth Circuit now prevents
death-row inmates from truly accessing the federal courts: a death-row inmate cannot
benefit from discovery and is prohibited from challenging even a truly unconscionable
method of execution if no other methods are readily available and obvious at the
pleading stage.

       The death-row inmates have established the risk of using alleged compounded
pentobarbital to carry out an execution, and have conceded other forms of execution
are constitutional. Therefore, I would reverse the district court, stay the executions
of the death-row inmates pending resolution of the suit, and remand for the district
court to conduct discovery in its usual and normal course of business.

SHEPHERD, Circuit Judge, dissenting in part.

       In Lombardi, because the prisoners had not conceded that other methods of
lethal injection which the state of Missouri could choose would be constitutional,
“[w]e were not required to address whether alleging that the current method of
execution creates a substantial risk of harm when compared to known and available
alternatives, without specifying an alternative, would be sufficient to state a claim in
light of Hill and Baze.” In re Lombardi, 

, 905 (8th Cir. 2014). The
court now holds, in Part II.B. of this opinion, that even with such a concession the
prisoners must indeed identify an alternative method of execution that is feasible, can
be readily implemented, and will significantly reduce a substantial risk of severe pain
in order to state an Eighth Amendment claim. I cannot agree with this conclusion.



                                         -42-
       First, it is not necessary for the court to reach this issue. In Part II.A. of this
opinion we explain that the second amended complaint’s Eighth Amendment
challenge to Missouri’s method of execution by lethal injection fails to state a claim
because it does not include the requisite plausible allegations that the lethal execution
protocol creates a substantial risk of severe pain. So holding, we need not reach the
issue of the sufficiency of the second amended complaint’s allegation of an alternative
method of execution. See Raby v. Livingston, 

, 560-61 (5th Cir. 2010)
(“Because we find that Raby has failed to establish that the Texas lethal injection
protocol creates a demonstrated risk of severe pain, we do not reach the second step
of the Baze test, whether the risk created by the current protocol is substantial when
compared to the known and available alternatives.”).

       Second, if in fact the issue is be addressed, I disagree substantively with the
court’s holding. In Hill v. McDonough, the Supreme Court considered whether a
prisoner’s Eighth Amendment challenge to Florida’s lethal-injection protocol could
proceed as a § 1983 action or must proceed as a habeas action. 

, 576
(2006). In finding that the action could proceed under § 1983, the Court rejected the
government’s contention that the prisoner must plead an alternative means of
execution to state a § 1983 claim. 

The Hill Court noted that “[s]pecific
pleading requirements are mandated by the Federal Rules of Civil Procedure, and not,
as a general rule, through case-by-case determinations of the federal court.” 

v. Sorema N.A., 

, 512-14 (2002)).

       Lest there be any confusion about underpinnings of the holding, in its very next
term, in Jones v. Bock, the Supreme Court explained, “[J]ust last Term, in Hill v.
McDonough, we unanimously rejected a proposal that § 1983 suits challenging a
method of execution must identify an acceptable alternative.” 

, 213
(2007) (internal citation omitted).




                                          -43-
       Reading Hill and Jones together, I cannot conclude that the Supreme Court has
mandated a heightened pleading standard requiring identification of an alternative
method of execution in this § 1983 action asserting an Eighth Amendment claim. The
Supreme Court explicitly rejected such a requirement in Jones, and I take the Court
to mean what it says. In Part II.B., this court attempts to confine Hill to its holding
that an Eighth Amendment challenge to a lethal injection protocol may proceed under
§ 1983 action rather than a decision relating to the sufficiency of a complaint under
the Federal Rules. In Jones, however, the Supreme Court addresses the adequacy of
a complaint under Rule 8 and rejects court devised heightened pleading requirements.

       Finally, in Part II.B., the court identifies the risk that allowing protracted
discovery could have the practical effect of thwarting the State’s ability to carry out
any executions. Although I am cognizant of such a possibility, the Federal Rules of
Civil Procedure govern the sufficiency of the second amended complaint rather than
policy considerations. See 

(“[C]ourts should generally not
depart from the usual practice under the Federal Rules on the basis of perceived policy
concerns.”).

       For the reasons set forth in Part II.A. of the court’s opinion, the second
amended complaint’s Eighth Amendment challenge to Missouri’s lethal injection
protocol must be dismissed because it does not include the requisite plausible
allegations that the protocol creates the substantial risk of severe pain. However, I
cannot agree with the court’s conclusion that the prisoners must also identify an
alternative method of execution in the complaint.

      Accordingly, I join in all but Part II.B. of this opinion.
                       ______________________________




                                         -44-