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Clayton v. Lombardi

United States Court of Appeals, Eighth Circuit

March 17, 2015

Cecil Clayton, Plaintiff - Appellant
v.
George Lombardi; David R. Dormire; Terry Russell; Richard Williams, Defendants - Appellees

Submitted March 16, 2015

Appeal from United States District Court for the Western District of Missouri - Kansas City.

For Cecil Clayton, Plaintiff - Appellant: Elizabeth Unger Carlyle, Kansas City, MO; Susan M. Hunt, LAW OFFICE OF SUSAN M. HUNT, Kansas City, MO.

For George Lombardi, David R. Dormire, Terry Russell, Richard Williams, Defendants - Appellees: Stephen David Hawke, Assistant Attorney General, Michael Joseph Spillane, Assistant Attorney General, ATTORNEY GENERAL'S OFFICE, Jefferson City, MO.

Before LOKEN, BYE, and SMITH, Circuit Judges.

OPINION

PER CURIAM.

Cecil Clayton moves for stay of his execution scheduled for March 17, 2015, at 6:00 p.m., pending full briefing and argument of his appeal from the district court's[1] dismissal of his complaint, brought under 42 U.S.C. § 1983, asserting that he was incompetent to be executed. The district court dismissed without prejudice Clayton's complaint for failure to utilize available state remedies, specifically Missouri Supreme Court Rule 91.

Clayton argues, among other things, that he is likely to succeed on the merits of his appeal of the district court's order dismissing his complaint without prejudice[2] for failure to utilize available state

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remedies. See Motion for Stay at 19. We disagree. The district court's order was in accordance with our prior directives in the Middleton line of cases. See Middleton v. Roper, 759 F.3d 833 (8th Cir. 2014) (" Middleton I ); Middleton v. Roper, 759 F.3d 867 (8th Cir. 2014) (" Middleton II " ). As a result, Clayton is not likely to prevail on the merits of his appeal of the district court's order.

Accordingly, we deny Clayton's motion for stay of execution pending appeal.


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