INTRODUCTION - HuffPostbig.assets.huffingtonpost.com/clayotn.pdf · He is sentenced to death, ......

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI

Cecil Clayton, )

) Plaintiff, )

) v. )

) No. ____________ )

GEORGE A. LOMBARDI, ) Director, Missouri Department of ) Corrections, ) ) TROY STEELE, ) Warden, Eastern Reception Diagnostic ) And Correctional Center )

) Defendants. )

COMPLAINT UNDER 42 U.S.C. §1983

Plaintiff Cecil Clayton, scheduled to be executed on March 17, 2015, seeks both

emergency and permanent relief, requesting this Court declare and enforce his rights

under the Eighth and Fourteenth Amendments to the United States Constitution and issue

an injunction under 42 U.S.C. §1983 commanding defendants not to carry out any lethal

injection on Mr. Clayton because Missouri’s execution protocol and procedures will lead

to a prolonged and excruciating execution because of substantial risks unique to Mr.

Clayton.

INTRODUCTION

Cecil Clayton is seventy-four years old and is missing a large portion of his frontal

lobe as a result of a sawmill accident. He has dementia, major depression, and a history

of psychosis. Three experts have opined that Mr. Clayton is legally incompetent. His IQ

Case: 4:15-cv-00470-AGF Doc. #: 1 Filed: 03/13/15 Page: 1 of 20 PageID #: 1

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and adaptive deficits meet the standards for a finding of intellectual disability, formerly

known as mental retardation. The issue of his competence to be executed is currently

before the Missouri Supreme Court in a separate action under Rule 91. State ex rel.

Clayton v. Griffith, No. SC94841. This action addresses the issue that even if Mr. Clayton

were to be found competent to be executed, he is still subject to cruel and unusual

punishment because his brain injury and resulting confusion will subject him to unusual

and unnecessary pain and suffering during the execution process.

Under the current practice of the Missouri Department of Corrections, the drug

used to cause death is pentobarbital. However, prior to the administration of the

pentobarbital, it has been the practice of the Missouri Department of Corrections to offer

and administer midazolam and valium to the prisoner, ostensibly to mitigate the pain and

anxiety of the execution process. According to Board Certified Anesthesiologist Dr.

Mark Heath, whose affidavit is attached as Exhibit 30, beginning at Appendix p. A98,

Mr. Clayton’s extensive brain damage renders him unable to competently decide whether

to accept the corrections department’s ostensible offer of midazolam and valium as a

precursor to its protocol. These impairments make it impossible for him to rationally

choose whether to accept midazolam prior to his execution.

Mr. Clayton’s brain damage also significantly elevates the risk of an atypical

reaction to the midazolam and valium, causing Mr. Clayton to become agitated and

confused and to decompensate. In such a state, there is a heightened likelihood that

obtaining intravenous access will be very difficult. However, withholding from Mr.

Clayton the choice of accepting a sedative as he faces his death simply because of his


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disability would violate Mr. Clayton’s right equal protection of the law as well as his

right to be free from cruel and unusual punishment.

Moreover, given Mr. Clayton’s brain damage, an underdose of pentobarbital—

made more likely by Missouri’s use of compounding pharmacies instead of FDA-

approved drugs—heightens the risk that Mr. Clayton will survive the execution, but only

exist in a permanent vegetative state. In sum, Mr. Clayton’s severe brain damage, where

he is missing one fifth of his frontal lobe, is undisputable.

Image of Mr. Clayton’s Brain, Ex. 16.

Mr. Clayton’s brain damage and resultant dementia also render his execution cruel

and unusual punishment. Mr. Clayton’s claims rest not on the inherent dangers of

Missouri’s execution protocol, or on the inherent risks in the use of compounded drugs

generally, but on the unique facts of Mr. Clayton’s medical condition.


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JURISDICTION AND VENUE

1. Jurisdiction is conferred by 28 U.S.C. §1331 and §1343, which provide for

original jurisdiction of this Court in suits based respectively on federal questions and

authorized by 42 U.S.C. §1983, which provides a cause of action for the protection of

rights, privileges or immunities secured by the Constitution of the United States.

Jurisdiction is further conferred by 28 U.S.C. §2201 and §2202, which authorize actions

for declaratory and injunction relief.

2. Venue is proper in the Eastern District of Missouri under 18 U.S.C.

§1391(b)(1)-(3) in that defendant Steele resides in the territorial jurisdiction of this

district, and defendant Steele’s decisions regarding Missouri’s execution protocol are

made within this Court’s territorial jurisdiction, and Mr. Clayton’s execution, if it occurs,

will occur in this Court’s territorial jurisdiction.

PARTIES

3. Plaintiff Cecil Clayton is a resident of the State of Missouri and presently

resides at Eastern Reception Diagnostic and Correctional Center, Bonne Terre, Missouri.

He is sentenced to death, and is scheduled to die by lethal injection on March 17, 2015.

Mr. Clayton is presently incompetent to utilize the Department of Corrections grievance

procedure.

4. Defendant George Lombardi is the director of the Missouri Department of

Corrections. His office is located at 2729 Plaza Drive, Jefferson City, Missouri. Mr.


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Lombardi is sued in his official capacity. Mr. Lombardi, by Mo. Rev. Stat. §536.720, has

overall responsibility for carrying out the execution of Mr. Clayton.

5. Defendant Troy Steele is the warden of Eastern Reception Diagnostic and

Correctional Center (ERDCC), Bonne Terre, Missouri. He is sued in his official capacity.

Because Mr. Clayton’s execution is scheduled to occur at ERDCC, Mr. Steele has

immediate responsibility for the execution.

6. All actions of defendants Lombardi and Steele are taken under color of state

law.

FACTUAL BACKGROUND

A. A Sawmill Injury Caused Mr. Clayton Severe Brain Damage and Related Impairments, Including dementia. 7. Mr. Clayton suffered a head injury as a result of a sawmill accident in 1972

when he was 32 years old. Clayton v. State, 63 S.W.3d 201, 204 (Mo. banc 2001). A

piece of wood broke off the log he was working on and pierced his head. The piece

became imbedded inside his skull and could only be removed surgically. Due to his brain

injury, Mr. Clayton lost 7.7 percent of the brain, which equaled 20 percent of the frontal

lobe. As a result, a defense expert testified at trial that Mr. Clayton was incapable of

deliberating or otherwise coolly reflecting on a murder when agitated. Although Mr.

Clayton spent a considerable amount of time recuperating in the hospital after the

accident, he did not receive any long-term therapy.

8. Mr. Clayton desperately sought help. Medical and mental health records

document Mr. Clayton’s attempts to obtain help for his psychiatric issues resulting from


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the accident, which included: anxiety and nervousness, depression, irritability and

agitation, hallucinations and delusions, difficulty with impulse control, paranoia, and

confusion. (Ex. 6, 7, 8, 10, 11, 12, 13, 14). The records list various medications

prescribed to Mr. Clayton (including Phenobarbital, Triavil, Dilantin, Thorazine) . (Ex.

10, 11, 13, 15).

9. Five years after the accident, in 1978, a doctor treating Mr. Clayton found that

his “basic neurologic problem is stable and would not be expected to improve.” (Ex. 9).

Another doctor who saw Mr. Clayton in 1979 noted that “He has severe ideas of

reference and borderline paranoid delusions. At present he is disabled for any type of

gainful employment and is just barely making it outside of an institution.” (Ex. 8,

emphasis added). In 1983, testing completed in connection with social security disability

placed Mr. Clayton in the range of Intellectual Disability, revealing a full scale score of

76 and a memory quotient of 62. His 1983 testing put him at a fourth grade reading level

and a third grade spelling level. (Ex. 12, emphasis added). In 1984, yet another doctor

opined that Mr. Clayton was “totally disabled.” (Ex. 14).

B. Mr. Clayton’s mental impairments increasingly disable him.

10. Since his arrest and sentencing, Mr. Clayton’s mental capacity has continued

to deteriorate. In 2004, IQ tests administered by a clinical psychologist for the Bureau of

Prisons revealed a full scale score of 71. Testing further revealed that Mr. Clayton’s

reading level was that of a fourth grade child. The psychologist who performed the

testing believed, “His current WAIS-III score of 71 likely reflects a decrease in


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intellectual efficiency secondary to the traumatic brain injury.” Ex. 20, p. 20.

Neuropsychological testing “results indicate severe executive dysfunction.” Specifically,

“During a simpler test of concept formation, the Wisconsin Card Sorting Test. He was

unable to complete even one category correctly. Rather, he perseverated on an incorrect

response 125 times in a row, despite feedback that his responses were incorrect. This

score is considered severely impaired.” Ex. 20, pp. 22-23. (Emphasis added.)

11. Tasked by the district court with administering a competency evaluation,

government psychologists observed Mr. Clayton over the course of months at the United

States Medical Center for Federal Prisoners in Springfield, Missouri. Dr. Lea Ann

Preston presented a report to the district court in which she concluded that Mr. Clayton

was not competent to proceed in habeas. (Ex. 20). Dr. Preston found that “Mr. Clayton’s

tangential speech, impaired judgment, and impaired reasoning abilities, will negatively

affect his ability to communicate effectively with his counsel, testify relevantly, and make

rational decisions regarding his habeas proceedings.” (Ex. 20, p. 32, emphasis added).

Dr. Preston noted that, since the accident, Mr. Clayton had auditory and visual

hallucinations and believed that sometimes Satan spoke to him. On the Mac-CAT-CA, a

test that measures understanding relevant to competence to stand trial, the result:

was indicative of impaired reasoning abilities. Two types of items comprise the Reasoning measure: recognizing relevance and evaluating alternatives. Mr. Clayton’s performance on these items indicated that he was able to recognize relevant information. However, he displayed significant difficulty in being able to reason between two legal options. Mr. Clayton obtained a score of 3 out of a possible 12 on items which assessed the concept of Appreciation. This score is indicative of significant impairment.

(Ex. 20 p. 27.


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12. Over the past seven years, other psychologists have evaluated Mr. Clayton. Dr.

William Logan, M.D., evaluated Mr. Clayton in 2008, 2013 and 2015. Dr. Logan

concluded each time that Mr. Clayton is incompetent. He found that Mr. Clayton suffers

from dementia and brain damage resulting in significant memory impairment, decreased

judgment, decreased ability to process information or to grasp abstract concepts, a

disorganized thought process, and delusions. (Ex. 1). Dr. Daniel Foster, Psy.D., also

examined Mr. Clayton in 2008, 2013 and 2015. Like Dr. Logan, Dr. Foster found Mr.

Clayton incompetent each time he saw him. He also found that Mr. Clayton suffered from

significant frontal lobe damage, which caused subsequent cognitive impairment with

significant deficits in judgment, problem solving, mental flexibility, processing speed,

and verbal disinhibition. Additionally, he noted that Mr. Clayton suffered from

depressive episodes, insomnia, visual and auditory hallucinations, delusions, and

paranoia. (Ex. 2). Both doctors found Mr. Clayton’s delusions surrounding his execution

to be noteworthy. Specifically, Mr. Clayton believes that he was convicted because of a

conspiracy against him and that he will be spared the death penalty when God intervenes

on his behalf, after which time he will travel the country playing the piano and preaching

the gospel. (Ex. 21, 22, 24, 25).

13. The doctors’ findings are corroborated by other prisoners incarcerated with

Mr. Clayton who observe him daily. Two former cellmates of Mr. Clayton, John Johnson,

149663, and Brandon Swallow, 1140694, both have witnessed Mr. Clayton’s repeated

inability to follow simple directions in the prison. For example, both have observed Mr.


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Clayton’s inability to order commissary from a kiosk on his own. Mr. Clayton needed to

remember to enter his DOC number, hit “okay,” then enter a four-digit PIN number, but

he could not follow the prompts and complete these steps. Mr. Johnson showed Mr.

Clayton several times how to use the system, however, Mr. Clayton remains unable to

use the system. Both prisoners also noted that Mr. Clayton had severe memory problems.

He was very impulsive and would change subjects frequently when he spoke. He would

forget they were watching a movie and would change the television channel.

15. Both men also observed Mr. Clayton’s delusions. When they talked about

other inmates who had been executed, Mr. Clayton would tell Mr. Johnston that God

would free him. Mr. Clayton would sit and think daily about how God would get him out

of prison. Mr. Clayton told Mr. Johnston that he planned to come back to the prison and

minister and sing to the inmates.

C. Missouri’s Lethal Injection Procedure

16. Missouri’s written lethal injection protocol calls for the administration of 5

grams of pentobarbital, administered through an IV line into the execution chamber,

where the prisoner is alone and strapped to a gurney. No medical personnel are close at

hand, and the prisoner is monitored remotely from the “execution support room.”

Although medical personnel insert the IV lines at the outset, the lethal drug itself is

injected by non-medical personnel pushing syringes into the IV line at a pre-determined

flow rate.

17. Prior to the insertion of the IV lines, the prisoner may be offered oral Valium

as a sedative.


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18. The procedure itself begins with the insertion of the IV lines – one in each arm

(or a central line in the femoral, jugular or subclavian vein if venous access in the arms is

limited). The gurney is positioned so medical personnel can remotely observe the

prisoner’s face, directly, “or with the aid of a mirror.” Medical personnel “monitor” the

prisoner remotely during the execution.

19. After the IV lines are inserted, according to prison officials, the prisoner, at the

discretion of the medical doctor supervising the execution, is offered midazolam as a

sedative. Since the execution of Earl Ringo on September 10, 2014, the department of

corrections has maintained that the midazolam injection is voluntary and may be rejected

by the prisoner. If accepted, the midazolam is administered intravenously, in dosages far

higher than normally given for sedation.

20. Non-medical personnel administer the lethal drug through syringes into the IV

lines. After the administration of the initial 5 grams of pentobarbital, the non-medical

personnel flush the IV lines with saline and Methylene Blue. Shortly thereafter, the

execution chamber’s curtains are closed and medical personnel check the prisoner to see

if he is dead.

21. If the prisoner is not dead, the non-medical personnel then inject an additional

5 grams of pentobarbital through two additional syringes.

22. As a result of his severe brain damage, Mr. Clayton is not competent to

comply with Missouri’s execution protocol and make a rational decision on whether to

accept midazolam and valium. His intellectual disability makes it likely that he will not

cognitively understand the ramifications of his decision. The severe impairments in


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speech and disorganization of thought, resulting from his brain damage, strip him of the

ability to effectively understand and communicate about the decision. His delusional

disorder further complicates the issue. Mr. Clayton may believe that he should not take

the drug because divine intervention is going to rescue him at the last minute. On the

other hand, he could be directed by an auditory hallucination to take the midazolam.

Regardless, he would not be making a competent, rational, and informed decision.

23. Dr. Mark Heath, a board-certified anesthesiologist, explains that the altered

structure of Mr. Clayton’s brain complicates this further. Exhibit 26, Affidavit of Dr.

Mark Heath with Curriculum Vitae, at ¶12, p. A98. Leading up to the execution, the

prison will offer Mr. Clayton valium and midazolam. These drugs are of a similar class,

benzodiazepine. This class of drugs produces “axiolytic, sedative, and amnestic effects.

Because [valium and midazolam] are both benzodiazepines and because they bind to the

same receptors of the brain, [valium, also known as] diazepam and midazolam are

additive in their effects.” (Ex. 26 ¶14.).

24. Moreover, both midazolam and valium act on the very part of the brain where

Mr. Clayton has severe damage. That is, they will cause Mr. Clayton’s frontal lobe to be

“depressed or completely silenced.” Ex. 26 ¶16. Because Mr. Clayton’s abnormalities are

focused in the area where these drugs act, Mr. Clayton is likely to experience an atypical

response to the midazolam. He is likely to experience effects associated with frontal lobe

decompensation. Such a response, coupled with his facing his imminent death, “could

produce extreme psychological—disarray, disinhibition, and behavioral

decompensation.” (Ex. 26 ¶17.)


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25. The use of midazolam and valium also increases the risk of difficulty

establishing access to Mr. Clayton’s veins, “If Mr. Clayton is unable to maintain self-

control during the process, it is likely that he will not be able to cooperate and remain still

during the attempted insertion of intravenous catheters. It is foreseeable that the process

of obtaining intravenous access may become an arduous battle requiring extreme restraint

and multiple painful failed attempts.” (Ex. 26 ¶22.)

26. There are common clinical responses to mitigate the risks associated with

sedating a person with injuries like Mr. Clayton’s; however, the Department of

Corrections will not take any of these readily available steps. In “the clinical setting . . .

prior to inducing anesthesia, the anesthesiologist has the option of administering

intramuscular sedatives and/or relaxants to sedate the patient and provide conditions that

are amenable to obtaining IV access.” (Ex. 26 ¶23.) Even if the Department of

Corrections had such drugs at their disposal, “intramuscular sedation is not included as an

option in the current protocol. Further, if Mr. Clayton was to require sedation in order to

obtain IV access, it would render him into a state in which he would not be competent to

be executed, assuming that he currently is.” (Ex. 26 ¶23.)

27. Likewise, in the clinical setting, “the presence of a parent or friend or familiar

caregiver in the operating room prior to and during the induction of anesthesia can be

extremely valuable in assuaging fear and agitation in these patient groups.” (Ex. 26 ¶20.)

The Department of Corrections, by contrast, will cut Mr. Clayton off from such

caregivers, and he “will be surrounded by people who are organized to harm him, who

are restraining him, and who are inserting needles into his arms or legs or groin or neck.”


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(Ex. 26 ¶21.) This stress “will likely inflame his documented paranoid and delusional

ideation, and will further increase the risk that he will enter into a cruelly terrified state of

psychological disintegration.” (Ex. 26 ¶21.)

28. Given Mr. Clayton’s significant deficits already present, his potential

decompensation makes it impossible for him to meaningfully assess the risks associated

with accepting or rejecting the valium and midazolam. Fundamentally, it is unfair that

Mr. Clayton, saddled with a crippling brain injury, should be required to make the

difficult choice of whether to face his death fully lucid, and experience the full extent of

the suffering associated with it, or, to opt for midazolam and valium, drugs that could

cause him to psychologically decompensate and expose him to extreme suffering. Other

drugs and clinical techniques are readily available that would not create such risk, and

Mr. Clayton’s execution would violate the Eighth Amendment. See U.S. Const. amend.

VIII; Baze v. Rees, 553 U.S. 35 (2008).

29. Depriving Mr. Clayton the option of midazolam or valium would not alleviate

these problems. To do so would deprive Mr. Clayton of the option of a sedative because

of his disability, something our constitution does not tolerate. U.S. Const. amend. XIV;

New York City Transit Authority v. Beazer, 440 U.S. 568 (1979). Mr. Clayton’s very low

intellectual functioning, together with his profound brain damage makes Missouri’s

current method of execution unconstitutional, as applied to him.

30. Mr. Clayton’s brain damage makes him uniquely susceptible to an atypical

response to valium and midazolam. Even if the Department of Corrections’

administration of midazolam would not render a person with a normal brain


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incompetent—and assuming for sake of argument Mr. Clayton is currently competent—

Mr. Clayton’s adverse reaction to the midazolam would render him incompetent to be

executed. Midazolam and valium are both benzodiazepines. They act on the same

receptors in the brain. (Ex. 26 ¶14.) For this reason, if both are administered, they will

have an additive effect. (Ex. 26 ¶14.)

31. Benzodiazepines “can demonstrate atypical effects when administered to

patients with a history of brain damage.” (Ex. 26 ¶15.) Because of Mr. Clayton’s damage

to his frontal lobe, the parts of that portion of his brain that are “partially functional will

likely be depressed or completely silenced by benzodiazepine administration.” (Ex. 26

¶16.) “In combination with his impaired and abnormal cognitive processing of his

imminent death, any derangement caused by [benzodiazepines] could produce extreme

psychological disarray, disinhibition, and behavioral decompensation.” (Ex. 26 ¶17.) He

would “not understand why he is being executed or even that he is being executed.” (Ex.

26 ¶17.)

32. The Eighth Amendment bars executing a person who does not know that he is

being executed or does not rationally understand why he is being executed. See Panetti v.

Quarterman, 551 U.S. 930, 959 (2007). Missouri law prohibits the execution of a person

who “lacks capacity to understand the nature and purpose of punishment about to be

imposed upon him or matters in extenuation.” Mo. Rev. Stat. §552.060.1. Mr. Clayton’s

brain damage, together with the benzodiazepines, would render him unable to

“understand why he is being executed or even that he is being executed.” (Ex. 26 ¶17.)

Thus, his execution under such circumstances would violate state and federal law.


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33. Missouri is not using FDA approved pentobarbital, instead using pentobarbital

from a secret compounding pharmacy. “Because of this provenance, this pentobarbital is

more likely than FDA-approved pentobarbital to be defective.” (Ex. 26 ¶25.) “Because

of existing damage to [Mr. Clayton’s] brain, he is particularly vulnerable and sensitive

effects” of the risks of using compounded pentobarbital. (Ex. 26 27.)

34. Defective pentobarbital is a growing problem. “Defective pentobarbital,

obtained from a cryptic compounding source, has caused a postponed execution in

Georgia.” (Ex. 26 ¶26.) There, the Department of Corrections described their

compounded pentobarbital “cloudy” and “announced it was postponing [all] the

executions . . . ‘while an analysis is conducted of the drugs.’” Mark Berman, Georgia

Postpones Executions Indefinitely So It Can Examine Lethal Injection Drugs,

Washington Post (Mar. 3, 2015) available at http://www.washingtonpost.com/news/post-

nation/wp/2015/03/03/georgia-postpones-executions-indefinitely-so-it-can-examine-

lethal-injection-drugs/. “The exact nature of the problem with the pentobarbital and its

preparation has not yet been divulged.” (Ex. 26 ¶24.) Missouri has no known plans to

review its compounded pentobarbital following the problems in Georgia. Using FDA

approved pentobarbital is a readily available alternative to Missouri’s current protocol

that would avoid this problem.

35.“If defective pentobarbital fails to kill [Mr. Clayton,] but instead exposes him

to a period of reduced or absent breathing, the resulting further damage to his brain could

leave him in a profoundly neurologically damaged or destroyed state.” (Ex. 26 ¶ 27.) Dr.


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Heath is familiar with Missouri’s protocol and regularly administers the drugs it uses. He

says,

Mr. Clayton, by dint of the traumatic injury to his frontal lobe, presents unique challenges and risks to the Missouri DOC and its process for executing him. His impaired faculties increase the risk of him requiring pre-procedure sedation, but the only drugs available to the anesthesiologist (midazolam and diazepam) hold a high risk of causing atypical agitation and confusion. . . . There is a high likelihood that agitation and fear will render him unable to cooperate with the IV insertion process, and this will foreseeably result in a spiraling cycle of failed access, repeated needling, and uncontrolled struggling, panic, and disarray. The use of non-FDA-approved pentobarbital amplifies this risk of further injury to his already vulnerable and fragile brain.

(Ex. 26 ¶28.)

36. Mr. Clayton’s impairments, and the well-known medical reactions to these

drugs Missouri will use, makes it “foreseeable that deploying the current rigid and

inadequate procedures and protocol will, in Mr. Clayton’s case, lead inexorably to a

cruelly botched debacle of an execution.” (Ex. 26 ¶29.) This debacle will likely result in

extreme pain. As such, it violates the Eighth Amendment for Missouri to use its current

lethal injection protocol to execute Mr. Clayton. See U.S. Const. amend. VIII; Baze v.

Rees, 553 U.S. 35 (2008).

37. Missouri could significantly reduce the risk of unreasonable pain and suffering

to Mr. Clayton by making the following alterations to its protocol:

a. Disallow the use of compounded pentobarbital, and instead require

pharmaceutical grade pentobarbital from an FDA-approved manufacturer.


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b. Permit a friend or family member of Mr. Clayton to be present with him in the

execution chamber.

c. Amend the execution procedures to include a treating physician, who can

determine the correct medications to be administered in the event that Mr. Clayton

becomes agitated after the administration of midazolam.

COUNT I

VIOLATION OF CRUEL AND UNUSUAL PUNISHMENT CLAUSE

Mr. Clayton realleges the foregoing facts and further states as follows:

38. Defendants’ flawed execution protocol, its use of secret, unregulated drugs,

and its failure to provide for steps for evaluating whether or how Mr. Clayton can be

constitutionally executed will cause extreme and needless suffering to Mr. Clayton,

including but not limited to extreme anxiety and fear, pain from attempts to start IV lines

when he is struggling, and assaults by prison personnel in an effort to complete the

execution protocol.

39. If Missouri proceeds with its scheduled execution of Mr. Clayton, it will be

conducting an unregulated experiment on a human subject, as there are no studies that

support Defendants’ use of Missouri’s lethal injection protocol on an individual suffering

from severe brain damage.

40. Missouri’s lethal injection procedures, as applied to Mr. Clayton, are sure or

very likely to cause excruciating or tortuous pain and needless suffering.


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41. Defendants’ intended actions as set forth in this Complaint will inflict extreme,

tortuous and unnecessary pain and therefore violate the Cruel and Unusual Punishments

Clause of the Eighth Amendment of the United States Constitution.

PRAYER FOR RELIEF

Mr. Clayton requests the following relief:

1. That this Court issue a declaratory judgment declaring and enforcing the rights

of Mr. Clayton, as alleged above, and further issue a temporary restraining order or

preliminary or permanent injunction to enforce Mr. Clayton’s rights under the Eighth and

Fourteenth Amendments to the United States Constitution, directing the defendants not to

carry out any lethal injection on Mr. Clayton until such time as adequate procedures are

in place to prevent a violation of Mr. Clayton’s Eighth Amendment rights as alleged

above.

2. That this Court award Mr. Clayton a reasonable attorney’s fee and costs

pursuant to 42 U.S.C. §1988.

3. For such other relief as this Court deems just and proper.

Respectfully submitted, /s Elizabeth Unger Carlyle Elizabeth Unger Carlyle 41930MO 6320 Brookside Plaza #516 Kansas City, MO 64113 (816)525-6540 FAX (866) 764-1249 e-mail: [email protected] ATTORNEY FOR CECIL CLAYTON


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LIST OF EXHIBITS

Ex. 1, 2009 report of William S. Logan, M.D. Ex. 2, 2009 report of Dr. Daniel V. Foster Ex. 3, Report of Dr. John Tsang, January 24, 1972 Ex. 4, Report of Dr. John Tsang, January 26, 1972 Ex. 5, St. John’s Hospital Discharge Summary, Feb. 3, 1972 Ex. 6, Letter from Dr. George Klinkerfuss, Jan. 30, 1978 Ex. 7, Statement of Dr. Klinkerfuss, April 24, 1978 Ex. 8, Psychiatric Evaluation, Ozark Psych. Clinic, Jan. 24, 1979 Ex. 9, Letter from Dr. Klinkerfuss, January 31, 1980 Ex. 10, Letter from Dr. Klinkerfuss, July 16, 1980 Ex. 11, Letter from Dr. Klinkerfuss, Sept. 1, 1983 Ex. 12, Letter from Dr. Douglas A. Stevens, Oct. 31, 1983 Ex. 13, Psychiatric Evaluation, February 9, 1984 Ex. 14, Letter from Dr. James A. Bright, March 20, 1984 Ex. 15, US DHS determination, April 6, 1984 Ex. 16, copy of MRI scan Ex. 17, Affidavit of Julie Eilers, Investigator Ex. 18, Affidavit of Attorney Laura Martin Ex. 19, Affidavit of Rebecca Kurz, Attorney Ex. 20, Forensic evaluation, Dr. Lea Ann Preston Ex. 21, Updated findings by William S. Logan, M.D., Aug. 28, 2013


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Ex. 22, Updated findings by Daniel V. Foster, Psy. D., Nov. 24, 2013 Ex. 23, Purdy School Records Ex. 24, Updated findings by William S. Logan, M.D., Jan. 7, 2015 Ex. 25, Updated findings by Daniel v. Foster, Psy.D, Jan. 7, 2015 Ex. 26, Declaration and CV of Dr. Mark Heath


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