IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

RUSSELL BUCKLEW, )
Plaintiff, )
) Case No. 14-2163
v. ) Capital Case
) Scheduled for Execution
GEORGE LOMBARDI, et al., ) May 21, 2014
Defendants. )

RESPONSE IN OPPOSITION TO PETITION FOR REHEARING
AND REHEARING EN BANC

Mr. Bucklew, by and through his counsel, hereby responds in opposition to
Defendants Petition for Rehearing and Rehearing En Banc.
This Court should deny the Petition, which presents no basis in law or logic
for rejecting the well-reasoned, 17-page decision issued by the panel. First of all,
Defendants do not accurately represent Mr. Bucklews position. Mr. Bucklews
stated stated in his complaint: Absent a thorough physical examination and
complete imaging studies, it is not even possible to state whether a constitutional
method of executing Mr. Bucklew by lethal injection exists. (Doc. 1 at 22, 79).
Thus, Mr. Bucklew alleged the difficulty though not impossibility -- of
identifying a feasible alternative, given the lack of current imaging studies to
determine the size and location of his numerous and extensive vascular tumors.
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The reason such imaging studies do not exist is the fault of Defendants.
Although having the constitutional obligation to provide adequate medical care
which includes monitoring Mr. Bucklews very rare and severe condition which
is even today is causing extreme pain, slurred speech and the need for extra
medication prior to his scheduled execution -- Defendants have failed to obtain
any up-to-date imaging studies. This is inexplicable, given that the last imaging
study, an MRI in J une 2010, noted a large complex right facial mass that
extended from the top of the nasal cavity deep into the throat. The radiologists
report is extremely detailed and lengthy, filled with sentences such as: [t]he mass
fills the masticator space and extends into the submandibular region inferiorly. In
the pharynx, the mass occupies a large space within the oropharynx and
hypopharynx. The report noted that the airway is severely compromised and
that Mr. Bucklew had had a tracheostomy in the past. The report noted facial
burning and pain. (Exh. 1)
Defendants first turned their attention to the subject of imaging only last
week, initially suggesting a venous study of Mr. Bucklews arms perhaps useful,
but not relevant to the large vascular tumors that fill his head and throat. It was
only later in the week that Defendants seemed to recognize that an MRI might be
necessary and discussed that possibility with Mr. Bucklews counsel. However,
once they discovered that Mr. Bucklews imaging needs were too extensive and
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complex to accomplish in a day or two, they abandoned interest in seeking an MRI
or CT scan.
Mr. Bucklews counsel have worked for years, with no monetary resources,
to investigate this condition. Indeed, their efforts have been stymied by
Defendants counsel, the Attorney Generals office, who opposed their requests for
funding.
Now, Defendants claim, when Mr. Bucklews condition is clearly at an
advanced stage, requiring heavy daily medication to control pain and other
symptoms, that he is, essentially, no different than anyone else and should be able
to propose a feasible, alternative method of execution even those it is Defendants
counsel who have repeatedly thwarted investigation by Mr. Bucklews counsel into
Mr. Bucklews medical condition.
No one can seriously suggest that there are not some individuals in prison
who are medically frail or who suffer from grave or debilitating conditions.
Indeed, many prisons these days have hospices to treat inmates in advanced stages
of cancer or other diseases. Certainly an individual with pancreatic cancer like
the prisoner in Siebert v. Allen, 506 F.3d 1047, 1049-50 (11
th
Cir. 2007) would
not be in a position to propose a feasible, alternative method of execution. Some
people are simply too ill or have conditions such as drug allergies, bleeding
Appellate Case: 14-2163 Page: 3 Date Filed: 05/20/2014 Entry ID: 4156143
disorders, seizure disorders, vascular diseases, past trauma to their airways that
making attempting to execute them an extremely risky venture.
In essence, the panels opinion recognizes that Mr. Bucklew is unique he
suffers from a severe form of a rare disorder, and it presently makes him prone to
hemorrhaging, choking, suffocating and/or suffering a loss of his airway during the
execution procedure. It is difficult to imagine any other prisoner who would fit
this description.
In the end, most people will become frail and old. No one would suggest
that a 95-year-old would be as fit for a feasible execution alternative as a 30
year old. A person of any age could be suffering from stage IV cancer or an auto-
immune disease that ravages the body. The panel opinion merely recognizes the
reality that one prisoners severe medical condition may create great risks in the
execution chamber, and that those risks could give rise to bleeding, choking or
suffocating during the execution.
There is nothing in the law that requires denying reality. The facts
concerning Mr. Bucklews medical condition are uncontroverted, and Defendants
have presented no evidence that contradicts Mr. Bucklews experts.
Finally, it is clear that Mr. Bucklew has fulfilled the Baze standard
adequately alleging (and supporting with affidavits) a grave risk of excruciating or
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tortuous pain, along with the undeniable fact that lack of current medical
information makes proposing an alternative method difficult at this time. Mr.
Bucklew has repeatedly sought funds for experts, and should be permitted to
develop his claims through further proceedings.
Respectfully submitted,
/s/ Cheryl A. Pilate
Cheryl A. Pilate, Mo. No. 42266
Lindsay J . Runnels, Mo. No. 62075
MORGAN PILATE LLC
926 Cherry Street
Kansas City, MO 64106
Phone: 816-471-6694
Fax: 816-472-3516
Email: cpilate@morganpilate.com
Email: lrunnels@morganpilate.com

CERTIFICATE OF SERVICE
I, Cheryl A. Pilate do hereby certify that a copy of the above and foregoing was
served on the Court and opposing counsel via the electronic filing system on this
20
th
day May, 2014.
/s/ Cheryl A. Pilate

Appellate Case: 14-2163 Page: 5 Date Filed: 05/20/2014 Entry ID: 4156143
AFS923A
DOC ID OFFENDER
00990137 RUSSELL E BUCKLEW
***** OBJECTIVE CONTINUATION FROM PREVIOUS PAGE *****
N(Y/N) RETURNED WITH DRESSING OR ASSISTIVE DEVICES
EXPLAIN:
Y(Y/N) RECEIVED RECOMMENDATIONS FROM OFF-SITE SPECIALIST
LIST OF RECOMMENDATIONS: POSSIBLE TX
0:: :MOR :: End of: MEDICAL OUT COUNT RETURN
ASSESSMENT
A: (MOR) MEDICAL OUT COUNT RETURN
ASSESSMENT
A:: :MOR :: End of: MEDICAL OUT COUNT RETURN
PLAN
P: (MOR) MEDICAL OUT COUNT RETURN
Y(Y/N) RECOMMENDATIONS REVIEWED WITH PRIMARY CARE PHYSICIAN
Y(Y/N) ORDERS RECEIVED
Y(Y/N) EDUCATED ON PLAN OF CARE
N(Y/N) FOLLOW-UP APPOINTMENT SCHEDULED WITH SITE PHYSICIAN
N(Y/N) FOLLOW-UP NURSING ENCOUNTER SCHEDULED
P:: :MOR .. End of: MEDICAL OUT COUNT RETURN
NURSE 12327 KIM A KLEIN
SPECIFIC CHARTING INFORMATION
06/02/2010
Nurse encounter MSR filed
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20100602 181617
MSR DATE TIME COMPLAINT ***********************************************
06/03/2010 .06:45 A ENT OUTCOUNT UPDATE
DOCTOR ENCOUNTER APPOINTMENT DATE 06/03/2010 TIME 06:45 A SHOW UP Y PCC
SUBJECTIVE
***NONENCOUNTER NOTE*** Pt had ENT eval per Dr. zitch
at UMMC 6/2/10 re cavernous hemangioma c increasing
frequency of bleeding oral cavity and nose. .
Prior scleral Rx 2000 for cavernous hemangioma and
eval per Dr. Zitch.
ASSESSMENT
-Per ENT: some progression of vascular malformation of
face/neck.
PLAN
-ENT rec: MRI of head/neck with flu for treatment
discussion. (MRI to go c pt for ENT F/U.)
-Referral for MRI and ENT flu c MRI.
DOCTOR WDMOO#EM WILLIAM D MCKINNEY
REFERRAL REQUEST DATE 06/03/2010
REQUEST REASON
sip PRIOR SCLERAL RX FOR CAVERNOUS HEMANGIOMA 2000. NOW
20100603 065315
20100603 065315
20100603 065315
20100603 065315
20100603 065315
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20100603 065315
20100603 065315
20100603 065315
PCC
20100603 065108
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AFS923A PAGE:
DOC ID OFFENDER
00990137 RUSSELL E BUCKLEW
***** REQUEST REASON CONTINUATION FROM PREVIOUS PAGE *****
PROGRESSING C INCREASED FREQUENCY OF ORAL CAVITY AND NASAL
BLEED. ENT EVAL DR. ZITCH 6/2/10 REC ABOVE TO EVAL THEN-
F/U FOR TREATMENT DISCUSSION. (WILL FAX DR. NOTE.)THANKS, WDM
20100603 065108
20100603 065108
20100603 065108
REQUEST COMMENTS
AWAITING FAX FOR REFERRAL REVIEW. CLP 060310
YES PER RMD CONLEY FOR MRI FACE/NECK. CLP 061510
REFER TO: MRI FACE/NECK
REQUESTOR WDMOO#EM WILLIAM D MCKINNEY
APPROVED
20100603 075603
20100615 095914
Y
SPEC. ENCOUNTER APPOINTMENT DATE 07/14/2010 TIME 08:30 A SHOW UP Y PCC
SPEC. CONTACTS
KNOWN VASCULAR TUMOR SLIGHT PROGRESSION OVER PAST
SEVERAL YEARS
1. DISCUSSED SURGICAL OPTIONS WITH LARGE CONCOMITA
NT DISABILITY PT REFUSED
2. DISCUSSED OTHER OPTIONS INCLUDING OBSERVATION V
S RADIATION THERAPY PT WOULD LIKE CONSIDERATION R
.T PLEASE ARRANGE RT CONSULT
3. CONSIDER TREATMENT OF NEUROPATHIC PAIN GABAPENT
IN?
SPECIALIST ZITSCH ROBERT P ZITSCH
SPECIFIC CHARTING INFORMATION
06/03/2010
Doctor/Dentist encounter MSR filed
Request for Referral was submitted
07/14/2010
Appointment with Specialist scheduled
20100729
20100729
20100729
20100729
20100729
20100729
20100729
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20100729
135139
135139
135139
135139
135139
135139
135139
135139
135139
20100603 064543
20100603 065108
20100615 134058
MSR DATE TIME COMPLAINT ***********************************************
06/03/2010 06:53 A ENT F/U FOR CAVERNOUS HEMANGIOMA
REFERRAL REQUEST DATE 06/03/2010
REQUEST REASON
SEEN IN F/U PER DR. ZITCH 6/2/10. HX AS PER REFERRAL FOR
MRI. PT WILL NEED F/U AS ABOVE P MRI.
THANKS, WDM.
REQUEST COMMENTS
AWAITING FAX FOR REFERRAL REVIEW. CLP 060310
YES PER RMD CONLEY FORF/U #1 ENT. CLP 060310
REFER TO: ENT F/U CDR. ZITCH FOR TREATMENT OPTS. APPROVED
REQUESTOR WDMOO#EM WILLIAM D MCKINNEY
PCC
20100603 065545
20100603 065545
20100603 065545
20100603 075622
20100603 133650
Y
SPEC. ENCOUNTER APPOINTMENT DATE 06/23/2010 TIME 08:00 A SHOW UP Y PCC
ASSESSMENT
MRI NECK WITHOUT CONTRAST AND FACE 20100812 083408
CLINICAL DATA: RIGHT SIDED FACIAL MASS, FACIAL BURNING AND P 20100812 083408
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PC001462
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AFS923A
r",
MEDICAL RECORD HIS:?-Y
DOC ID OFFENDER
00990137 RUSSELL E BUCKLEW
***** ASSESSMENT CONTINUATION FROM PREVIOUS PAGE *****
AIN
TECHNIQUE: MULTIPLANAR MULTISEQUENTIAL I.MAGING WAS PERFORMED
OF THE NECK AND FACE WITHOUT CONTRAST. THE STUDY WAS ORDERE
D WITH AND WITHOUT IV CONTRAST. HOWEVER, THE PATIENT REFUSED
CONTRAST.
FINDINGS: HTEER IS A LARGE COMPLEX RIGH FACIAL .MASS. THE .MAS
S INVOLVES THE RIGHT PHARYNGEAL WALL, EXTENDS INTO THE PARAP
HARYNGEAL SPEACE ADJACENT TO THE RIGHT SIDE FO THE MANDIBLE
INFERIORLY THE .MASS EXTENDS FROM TEH HYPOPHARYNX JUST ABOVE
THE TIP OF THE EPIGLOTTIS. SUPERIORLY, THE .MASS EXTENDS TOWA
RD AND POSSIBLE INTO THE POSTERIOR LEFT NASAL CAVITY AT THE
LEVEL OF THE INFERIOR LEFT ETHMOID AND RIGHT MIDDLE MEATUS.
THE MASSS SURROUNDS THE RIGHT PTERYGOID MUSCULATURE. I DO NO
T IDENTIFY A DEFINITE RIGHT BUCCINATOR OR .MASTICATOR MUSCLE.
THE .MASS FILLS THE MASTICATOR SPACE AND EXTENDS INTO THE SU
BMANDIBULAR REGION INFERIORLY.
IN THE PHARYNX, HE MASS OCCUPIES A LARGE SPACE IWTHIN THE OR
OPHARYNX AND HYPOPHARYNX. THE AIRWAY IS SEVERELY COMPROMISED
AT THIS SITE, A TRACHEOSTOMY IS NOTED IN THE UPPER THORAX.
THE .MASS MEASURES UP TO 6.5 CM TRANSVERSE DIAMETER BY 4.4CM
AP DIAMETER BY 8.1CM IN CRANIOCAUDAL LENGTH. THERE IS TUMOR
TISSUE INVOLVING THE RIGHT MAXILLARY BONE ROOF AND EXTENDING
INTO THE RIGHT NASAL CAVITY. ABOVE THE .MASS WITHIN THE NASA
L CAVITY, THERE IS OPACIFICATION OF THE RIGHT ETHMOID AIR CE
LLS WHICH ARE LLIKELY INCLUDED.
CORONAL IMAGES DEMONSTRATE AN ELONGATED EXTENSION OF THE .MAS
S WIHTIN THE OROPHHARYNX AND HYPOPHARYNX AGAIN JUST TO ABOVE
THE EPIGLOTTIS
IMPRESSION:
1. COMPLEX RIGHT SIDED FACIAL .MASS INVOLVING MULTIPLE PHARYN
GEAL AND PARAPHNGENGEAL INVOLVING THE RIGHT MAXILLARY BONE A
ND RIGHT NASAL CAVITY AND EXTENDIGN INTO THE OROPHARYNX AND
HYPOPHARYNX. AT HTE JUNCTION OF THE OROPHARYNX AND HYPOPHARY
NX, THERE IS A LARGE AMOUNT OF TUMOR TISSUE WITHIN THE PHARY
NGEAL CAVITY. THE AIRWAY IS SIGNIFICANTLY COMPROMISED AT THI
S SITE
2. TRACHEOSTOMY IS PRESENT IN THE UPPER THORAX
SPECIALIST VISTA . VISTA
SPECIFIC CHARTING INFORMATION
06/03/2010
Request for Referral Initiation filed
06/23/2010
Appointment with Specialist scheduled
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2 010 0 8 G.:2, 0 8 3 4 0 8
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083408
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20100812 083408
20100603 065545
20100615 134114
MSR DATE TIME COMPLAINT ***********************************************
06/03/2010 09:50 A QMHP - CHRONIC CARE ENCOUNTER
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