PUBLISH

FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS

November 15, 2016

FOR THE TENTH CIRCUIT
_________________________________
THE ESTATE OF CLAYTON LOCKETT,
by and through its personal representative
Gary Lockett,
Plaintiff - Appellant,
v.

No. 15-6134

GOVERNOR MARY FALLIN, in her
individual capacity; ROBERT C.
PATTON, in his individual capacity;
ANITA TRAMMELL, in her individual
capacity; DOCTOR JOHN DOE,
Defendants - Appellees.
-----------------------------AMERICAN CIVIL LIBERTIES UNION;
AMERICAN CIVIL LIBERTIES UNION
OF OKLAHOMA; DOCTORS FOR THE
ETHICAL PRACTICE OF MEDICINE:
DR. LUCAS RESTREPO, Clinical
Assistant Professor of Neurology at the
University of California, DR. STEVEN
MILES, Professor of Medicine and
Bioethics at the University of Minnesota
Medical School in Minneapolis, DR.
ROBERT L. COHEN, Clinical Assistant
Professor of Medicine, NYU; Member,
New York City Board of Correction, DR.
JOHN P. MAY, Regional Medical Director
of Florida Region for Wexford Health
Sources, and Consultant on Correctional
Healthcare to the U.S. Department of
Justice, Civil Rights Division; DR. MARC

Elisabeth A. Shumaker
Clerk of Court

 STERN, Affiliate Assistant Professor,
Health Services at the University of
Washington, formerly the Health Services
Director for the Washington State
Department of Corrections; DR. SCOTT
ALLEN, Professor of Medicine, Associate
Dean of Academic Affairs, University of
California Riverside School of Medicine;
DR. JOSIAH D. RICH, Professor of
Medicine and Epidemiology, Brown
University and Director of the Center for
Prisoner Health and Human Rights; DR.
ROBERT GREIFINGER, Professor
(Adjunct) of Health and Criminal Justice
and Distinguished Research Fellow at John
Jay College of Criminal Justice in New
York City and correctional health care
policy and quality management consultant;
DR. COLEMAN PRATT, Chief Medical
Officer, Health Center in Florida, former
Medical Director for Prison Health
Services; DR. DAVID NICHOLL,
Consultant Neurologist at Sandwell and
West Birmingham Hospital, UK; DR.
JOHN HENNING SCHUMANN,
Gussman Family Associate Professor of
Medicine, University of Oklahoma-Tulsa,
Amici Curiae.
_________________________________
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 5:14-CV-01119-HE)
_________________________________
Alan Chen, University of Denver, Sturm College of Law, Denver, Colorado (David A.
Lane and Amy Kapoor, Kilmer, Lane & Newman, LLP, Denver, Colorado, and Justin F.
Marceau, University of Denver, Sturm College of Law, Denver, Colorado, with him on
the briefs), for Plaintiff-Appellant.

2

 Aaron J. Stewart (Richard Mann, with him on the brief), Assistant Attorneys General,
Oklahoma Attorney General’s Office, Litigation Division, Oklahoma City, Oklahoma,
for Mary Fallin, Robert Patton and Anita Trammell, Defendants-Appellees.
David W. Lee (Stephen L. Geries, with him on the brief), Collins Zorn & Wagner, P.C.,
Oklahoma City, Oklahoma, with him on the brief), for Doctor John Doe, DefendantAppellee.
Ryan D. Kiesel, and Brady R. Henderson, American Civil Liberties Union of Oklahoma
Foundation, Oklahoma City, Oklahoma, A. Katherine Toomey, Lewis Baach PLLC,
Washington, D.C., filed Amici Curiae briefs.
_________________________________
Before GORSUCH, PHILLIPS, and MORITZ, Circuit Judges.
_________________________________
PHILLIPS, Circuit Judge.
_________________________________
The Estate of Clayton Lockett, through its personal representative Gary
Lockett, filed suit against Mary Fallin, Governor of Oklahoma, in her individual
capacity; Robert Patton, Director of the Department of Corrections of Oklahoma, in
his individual capacity; Anita Trammell, Warden of the Oklahoma State Penitentiary,
in her individual capacity; Dr. Doe, in his official and individual capacities; John Doe
EMT, in his individual capacity; three John Doe executioners, in their individual
capacities; two John Doe drug manufacturers, in their individual and official
capacities; and two John Doe compounding pharmacies,1 in their individual and

1

Lockett’s Estate has abandoned his claims against the compounding
pharmacies because Appellees assert that no compounded drugs were used in
Lockett’s execution. See Appellees’ Resp. Br. at 26; Appellant’s Reply Br. at 6 n.5.
Thus, we have not recited the facts relating to compounding pharmacies.

3

 official capacities. The Estate asserts several constitutional violations related to
Lockett’s execution. We affirm the district court’s dismissal of the case.
I.

Facts2
In 1999, Lockett kidnapped, assaulted, and killed nineteen-year-old Stephanie

Neiman. Lockett shot young Ms. Neiman with a shotgun and then had an accomplice
bury her alive. In 2000, a jury found Clayton Lockett guilty of 19 felonies arising
from the same incident, including the murder, rape, forcible sodomy, kidnapping, and
assault and battery of Ms. Neiman. The jury recommended that the court impose the
death penalty on Lockett’s murder conviction.
From 1990 to 2010, as detailed in Oklahoma’s Field Memorandum, a manual
setting execution procedures, Oklahoma used a common drug protocol previously
administered in at least 93 Oklahoma executions. Under this protocol, Oklahoma
administered three drugs—the first, sodium thiopental, to render the condemned
inmate unconscious; the second, pancuronium bromide, to paralyze the inmate; and
2

Because this appeal is from a motion to dismiss, we accept as true all facts as
sufficiently alleged in the complaint. Georgacarakos v. United States, 420 F.3d 1185,
1186 (10th Cir. 2005). This standard, while deferential, does not require us to accept
hyperbole or legal conclusions as true. See Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’
of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” (citations
omitted) (alteration in original)). The Amended Complaint leaves unmentioned many
facts a reader might be curious to know. But we are limited to the facts set out in the
Amended Complaint. In Lockett’s Estate’s briefing to this court, it asks us to take
judicial notice of news articles that add facts to those in the Amended Complaint. As
discussed below, we decline this invitation and thus recite only those facts that
appear in the Amended Complaint.
4

 the third, potassium chloride, to induce cardiac arrest and stop the inmate’s heart. In
2010, facing difficulty obtaining sodium thiopental, Oklahoma officials amended the
Field Memorandum to substitute in its place pentobarbital.3
On March 21, 2014, Oklahoma officials again amended the Field
Memorandum to allow a number of new alternate procedures for use in executions by
lethal injection. As one of these new procedures, officials substituted midazolam as
the first drug used in the protocol. Before Lockett’s execution, Oklahoma had not
used midazolam during an execution. Warden Trammell and Director Patton chose
this new protocol. Neither of them had any independent medical training.
On April 1, 2014, Warden Trammell and Director Patton notified Lockett that
he would be executed using midazolam, pancuronium bromide, and potassium
chloride, with the first two drugs being manufactured by a compounding pharmacy.4
On April 4, 2014, they notified Lockett that the midazolam would not in fact be from
a compounding pharmacy. On April 11, 2014, they notified Lockett that vecuronium
bromide would be used instead of pancuronium bromide.
On April 14, 2014, Warden Trammell and Director Patton amended the Field
Memorandum’s execution procedures by increasing the concentration of midazolam

3

The problems States have had in procuring execution drugs are widely
known. See, e.g., Glossip v. Gross, 135 S. Ct. 2726, 2733–34 (describing the
unavailability of execution drugs that led to Oklahoma using midazolam).
4

Compounding pharmacies produce drugs specifically tailored to the
individual patient.

5

 from 50mg/100ml to 50mg/10ml, a tenfold increase. Thus, Warden Trammell and
Director Patton did not notify Lockett of the final drug protocol until April 14, 2014
(15 days before his execution). On April 25, 2014, Oklahoma officials again
amended the Field Memorandum, but the Amended Complaint does not specify what
changed, simply noting that the change was made “with an addendum.” Appellant’s
App. vol. 1 at 160. When Lockett was executed, the Field Memorandum did not
require a backup IV line, a visible and uncovered IV line, or continuous observation
of the IV insertion site. Nor did it require that backup dosages of the drugs be
available or that the personnel involved in the execution have any specific level of
training.
Ultimately, Lockett was executed under one of the Field Memorandum’s
newly amended protocols: 100mg of midazolam (to render Lockett unconscious),5
40mg of vecuronium bromide (to paralyze Lockett), and 200 milliequivalents of
potassium chloride (to stop Lockett’s heart). Until Lockett’s execution, no State had
ever used that protocol. Unless the dosage of midazolam renders the prisoner

5

Lockett’s Estate alleges that midazolam is ineffective in this role. See
Appellant’s App. vol. 1 at 164–65. But we do not need to accept this as a fact.
Asserting that midazolam is ineffective in rendering an inmate unconscious
essentially asserts that the use of midazolam is constitutionally deficient, a legal
conclusion that we need not credit. Cf. Zink v. Lombardi, 783 F.3d 1089, 1102 (8th
Cir. 2015) (noting that the court did not need to accept speculative facts on the
potential deficiencies in compounded pentobarbital as an execution drug because the
complaint did not show that the lethal-injection protocol was “sure or very likely” to
create a substantial risk of severe pain (quoting Baze v. Rees, 553 U.S. 35, 50 (2008)
(plurality opinion))).

6

 unconscious, the second and third drugs will cause immense pain. Vecuronium
bromide will asphyxiate the prisoner, and potassium chloride will cause “burning and
intense pain” until death follows cardiac arrest. Id. at 163–64.
On April 29, 2014, Oklahoma brought Lockett to the execution chamber, and
Dr. Doe6 and the EMT ultimately selected a vein in his groin area as the injection
site.7 To shield any view of Lockett’s naked groin from witnesses in the execution
chamber, someone placed a cloth over the injection site. After Dr. Doe and the EMT
placed the IV, prison officials raised the curtain separating the viewing area from the
execution chamber.
At 6:23 p.m., the executioners administered the first drug, midazolam. At 6:33
p.m., Lockett was declared unconscious. After this, the executioners administered the
second drug (vecuronium bromide) and the third drug (potassium chloride).
Unexpectedly, at 6:36 p.m., Lockett began “twitching and convulsing” on the table.
Id. at 152. At 6:37 p.m., he tried to rise from the table but was able only to raise his
head and say, “Oh, man,” and “I’m not . . . .” Id. According to some observers,
Lockett also said, “something’s wrong.” Id. Soon afterward, Lockett “began to buck
and writhe, as if he was trying to raise himself from the gurney[,] . . . [and he] next
6

We note that the State withdrew its motion to maintain the seal on Dr. Doe’s
name imposed by the district court. But Lockett’s Estate and Amici have failed to
provide sealed copies of the complaint and other documents to this court, instead
submitting only redacted copies. Thus, nowhere does Dr. Doe’s real name appear in
our record. We will continue to use the pseudonym throughout.
7

The Amended Complaint does not reveal what Dr. Doe’s assigned duties
were before he entered the execution chamber.
7

 tried to raise his head and shoulders away from th[e] gurney [while] clench[ing] his
teeth and grimac[ing] in pain.” Id. at 160.
In response, Dr. Doe examined the IV site and saw that the injection vein had
collapsed, preventing some of the drugs from reaching Lockett’s circulatory system.
Responding to a question from Director Patton, Dr. Doe advised him that he believed
insufficient drugs had entered Lockett’s system to cause death. Dr. Doe also told
Director Patton that no other vein was available and that insufficient drugs remained
to complete the execution even if Dr. Doe could find another vein. Dr. Doe did not
consider or was unaware that the State had a second set of the execution drugs
available to execute condemned prisoner Charles Warner later that night. As events
soon proved, Dr. Doe was mistaken that the drugs in Lockett’s system might not
cause death. At 7:06 p.m., Dr. Doe declared Lockett dead, 43 minutes after the
executioners administered the first drug. In the 19 Oklahoma executions preceding
Lockett’s execution, doctors had pronounced the condemned prisoner dead between 6
and 12 minutes (as we understand it, from administering the first drug).
The Amended Complaint alleges that the autopsy report says the “execution
was halted” at 6:56 p.m., 33 minutes after Lockett was injected with the midazolam
(not saying who halted it or how). Id. at 153. A later report noted that “an IV
insertion problem” prevented at least some of the drugs from entering Lockett’s
system. Id. No one knows how much of each drug entered Lockett’s system. The
report concluded that the cloth over Lockett’s groin, which blocked the execution

8

 team’s view of the IV insertion site, was the “major reason” for the problems with the
execution. Id. at 174.
In its Amended Complaint, Lockett’s Estate alleges seven claims: (1) “Eighth
Amendment violation—Torture,” against all defendants, id. at 161; (2) “Eighth
Amendment—Using Untested Drugs and Human Medical Experimentation,” against
all defendants, id. at 163; (3) “Eighth Amendment—Use of Compounded Drugs in
Human Medical Experimentation,” against all defendants, id. at 166; (4) “Eighth
Amendment—Human Medical Experimentation on Unwilling Prisoners,” against all
defendants, id. at 168; (5) “Eighth Amendment—Failure to Train and Supervise,”
against Warden Trammell and Director Patton, id. at 172; (6) Fourteenth
Amendment—“Failure to Protect State-Created Rights Procedural Due Process
Violation,” against all defendants, id. at 176; and (7) “Sixth Amendment Right to
Counsel and First Amendment Access to the Court Violation,” against Warden
Trammell and Director Patton, id. at 177.
In response, Governor Fallin, Director Patton, and Warden Trammell filed a
motion to dismiss under Fed. R. Civ. P. 12(b)(6), as did Dr. Doe. Both motions
asserted qualified immunity among other defenses. The district court granted both
motions to dismiss on qualified-immunity grounds and sua sponte dismissed the
claims against the other Doe defendants.8 The district court reasoned that Lockett’s

8

These Doe defendants were the EMT, executioners, compounding
pharmacies, and drug manufacturers. Plaintiff never identified them by name (or, so
far as we can tell, served them with process).
9

 Estate had failed to show that the defendants had violated clearly established law. We
agree. Thus, exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
II.

Analysis
We review de novo a district court’s grant of a motion to dismiss. Ridge at Red

Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). To survive a
motion to dismiss, a complaint must contain “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Mere “labels and conclusions” and “a formulaic recitation of the elements of a cause
of action” are insufficient. Id. at 555. But we need not accept legal conclusions
contained in the complaint as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A. Qualified Immunity
All Appellees claim that they are entitled to qualified immunity. Qualified
immunity protects government officials from suit, not just from liability. Mitchell v.
Forsyth, 472 U.S. 511, 527 (1985). “In resolving a motion to dismiss based on
qualified immunity, a court must consider whether the facts that a plaintiff has
alleged make out a violation of a constitutional right, and whether the right at issue
was clearly established at the time of defendant’s alleged misconduct.” Brown v.
Montoya, 662 F.3d 1152, 1164 (10th Cir. 2011) (quoting Leverington v. City of Colo.
Springs, 643 F.3d 719, 732 (10th Cir. 2011)). When determining whether qualified
immunity applies, we may choose “which of the two prongs of the qualified
immunity analysis should be addressed first.” Pearson v. Callahan, 555 U.S. 223,

10

 236 (2009). Although Lockett’s Estate urges us to decide each of the constitutionalviolation questions first, we decline to do so.
“The doctrine of qualified immunity shields officials from civil liability so
long as their conduct ‘does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’” Mullenix v. Luna, 136
S. Ct. 305, 308 (2015) (quoting Pearson, 555 U.S. at 231). “A Government official’s
conduct violates clearly established law when, at the time of the challenged conduct,
the contours of a right are sufficiently clear that every reasonable official would have
understood that what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S.
731, 741 (2011) (alterations and quotation marks omitted). It is undisputed that
qualified immunity “do[es] not require a case directly on point, but existing
precedent must have placed the statutory or constitutional question beyond debate.”
Mullenix, 136 S. Ct. at 308 (quoting al-Kidd, 563 U.S. at 741); see Hope v. Pelzer,
536 U.S. 730, 741 (2002) (“[O]fficials can still be on notice that their conduct
violates established law even in novel factual circumstances.”); McInerney v. King,
791 F.3d 1224, 1236–37 (10th Cir. 2015) (“For a right to be clearly established there
must be a Tenth Circuit or Supreme Court precedent close enough on point to make
the unlawfulness of the officers’ actions apparent.”). In the Tenth Circuit, “[w]e have
. . . adopted a sliding scale to determine when law is clearly established. The more
obviously egregious the conduct in light of prevailing constitutional principles, the
less specificity is required from prior case law to clearly establish the violation.”
Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir. 2007) (quotation marks
11

 omitted). Clearly established law should “not [be] define[d] . . . at a high level of
generality.” Al-Kidd, 536 U.S. at 742. Thus, “broad history and purposes of the
Fourth Amendment” was an insufficient basis for a finding of clearly established law
in al-Kidd. Id. (quotation marks omitted).
1. Dr. Doe’s Qualified Immunity
Lockett’s Estate argues that Dr. Doe is not entitled to qualified immunity.
Because Dr. Doe is a private party, rather than a government employee, we must add
an additional step to his qualified-immunity analysis. For private parties, courts “look
both to history and to the purposes that underlie government employee immunity” to
determine whether qualified immunity applies. Richardson v. McKnight, 521 U.S.
399, 404 (1997). Richardson held that qualified immunity does not apply to private
prison officials. In so holding, the Court “found no conclusive evidence of a
historical tradition of immunity for private parties carrying out” prison-management
activities. Id. at 407. In evaluating whether qualified immunity was warranted by the
purposes of governmental immunity, the Court found it relevant that a private prison
is subject to competitive market pressures. Id. at 409.
Earlier precedent described immunity as protecting the public from
unwarranted timidity on the part of public officials by, for example,
encouraging the vigorous exercise of official authority, by contributing
to principled and fearless decision-making, and by responding to the
concern that threatened liability would, in Judge Hand’s words,
“dampen the ardour of all but the most resolute, or the most
irresponsible,” public officials.
Id. at 408 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982)) (quotation marks
and

citations

omitted).

Qualified

immunity’s
12

purpose

lies

in

“protecting

 ‘government’s ability to perform its traditional functions’ by providing immunity
where ‘necessary to preserve’ the ability of government officials ‘to serve the public
good or to ensure that talented candidates were not deterred by the threat of damages
suits from entering public service.’” Id. at 407–08 (quoting Wyatt v. Cole, 504 U.S.
158, 167 (1992)). Qualified immunity for private individuals is, as Lockett’s Estate
points out, fact-specific.
More recently, in Filarsky v. Delia, 132 S. Ct. 1657 (2012), the Court
characterized Richardson as “a self-consciously ‘narrow[]’ decision.” Filarsky, 132
S. Ct. at 1667 (alteration in original) (quoting Richardson, 521 U.S. at 413). In
Filarsky, the Court concluded that an attorney who was temporarily retained by a city
to assist in investigating potential wrongdoing was entitled to qualified immunity,
partly because “[t]here is no dispute that government employees performing such
work are entitled to seek the protection of qualified immunity” and because “[t]he
common law . . . did not draw such distinctions [between permanent, full-time
government employees and temporary ones like the retained attorney], and we see no
justification for doing so under § 1983.” Id. at 1667–68.
Dr. Doe is entitled to assert qualified immunity because the purposes of
qualified immunity support its application here: carrying out criminal penalties is
unquestionably a traditional function of government, exactly the sort of activities that
Richardson reasoned qualified immunity was meant to protect. If participants in an
execution could be held liable for problems during the execution, that would
necessarily implicate Filarsky’s concerns about “[t]he public interest in ensuring
13

 performance of government duties free from the distractions that can accompany
even routine lawsuits,” which the Court noted “is also implicated when individuals
other than permanent government employees discharge these duties.” Filarsky, 132
S. Ct. at 1666. The attorney in Filarsky received qualified immunity largely because
a permanent government attorney doing the same acts would receive it. The Filarsky
Court determined that denying a temporarily retained attorney the same defense as a
full-time government attorney would undermine the purposes of the doctrine. The
same is true here—for instance, had a state employee performed the same duties as
Dr. Doe did here, qualified immunity would apply. We see no sense in depriving a
private doctor the same protection. Here, Dr. Doe stands in the same position as the
attorney in Filarsky—he was a private party hired to do a job for which a permanent
government employee would have received qualified immunity. Thus, we conclude
that qualified immunity applies to Dr. Doe.
2. Torture and Deliberate Indifference
In its Amended Complaint, Lockett’s Estate labels its first claim for relief as
“Eighth Amendment violation—Torture.” Appellant’s App. vol. 1 at 161. And that
claim indeed repeatedly references torture and asserts that “Clayton Lockett had a
right under the Eighth Amendment to not be tortured to death by the Defendants.” Id.
at 163. In the midst of the torture allegations, though, we see that this claim makes a
single isolated reference to deliberate indifference: “The Defendants have acted with
deliberate indifference to the risk of torture being inflicted on Clayton Lockett.” Id.
at 162. At oral argument, we questioned whether this pleading language limits
14

 Lockett’s Estate’s claims here to a torture claim rather than its broader appellate
claim that Defendants were deliberately indifferent to Lockett’s suffering during the
execution. Oral Argument 7:58–9:05; Appellant’s Opening Br. at 21. In response to
the panel’s expressed doubts, Lockett’s Estate has submitted a Fed. R. App. P. 28(j)
letter arguing that the deliberate-indifference claim was “fairly included in the
Amended Complaint’s factual allegations.” Rule 28(j) Letter at 1.
While “[g]enerally, failure to set forth in the complaint a theory upon which
the plaintiff could recover does not bar a plaintiff from pursuing a claim,” McBeth v.
Himes, 598 F.3d 708, 716 (10th Cir. 2010) (quoting Elliott Indus. Ltd. P’ship v. BP
Am. Prod. Co., 407 F.3d 1091, 1121 (10th Cir. 2005)), “[i]f the new theory
prejudices the other party in maintaining its defense . . . courts will not permit the
plaintiff to change her theory,” id. (citing Ahmad v. Furlong, 435 F.3d 1196, 1202
(10th Cir. 2006)). Although Lockett’s Estate’s first claim needs some stretching to
raise a deliberate-indifference claim rather than a claim solely for torture, we will do
so. Importantly, we note that Appellees have alleged no prejudice from this liberal
construction.
Lockett’s Estate alleges that Appellees violated Lockett’s clearly established
right to be free from cruel and unusual punishment. But in its analysis, Lockett’s
Estate does not account for how cruel-and-unusual-punishment claims operate in the
execution context. A good starting place in our analysis is to recognize—as did the
Baze plurality—that because capital punishment is constitutional, lawful means must
exist to carry it out. Baze, 553 U.S. at 47 (citing Gregg v. Georgia, 428 U.S. 153, 177
15

 (1976)). And in evaluating alternative execution methods, we must further recognize
that “[s]ome 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.” Id.
Simply put, the Eighth Amendment does not require “the avoidance of all risk of pain
in carrying out executions.” Id. The Baze Court cited cases disallowing under the
Eighth Amendment “punishments of torture . . . and all others in the same line of
unnecessary cruelty.” Id. at 48 (quoting Wilkerson v. Utah, 99 U.S. 130, 136 (1879)).
By this measure, the Baze Court meant “the deliberate infliction of pain for the sake
of pain—‘superadd[ing]’ pain to the death sentence through torture and the like.” Id.
(alteration in original). This view tracks In re Kemmler, 136 U.S. 436 (1890), where
the Court concludes that “[p]unishments are cruel when they involve torture or a
lingering death; but the punishment of death is not cruel within the meaning of that
word as used in the constitution. It implies there something inhuman and barbarous,
—something more than the mere extinguishment of life.” Id. at 447; see Baze, 553
U.S. at 48–49 (discussing In re Kemmler).
The Supreme Court’s death-penalty opinions recognize that executions can go
awry. Thus, the Baze plurality notes that “[s]imply because an execution method may
result in pain, either by accident or as an inescapable consequence of death, does not
establish the sort of objectively intolerable risk of harm that qualifies as cruel and
unusual.” Baze, 553 U.S. at 50 (quotation marks omitted). As a situation exceeding
these bounds, the Court has raised the prospect of a case with “a series of abortive
attempts at electrocution”: “such a situation—unlike an ‘innocent misadventure’—
16

 would demonstrate an ‘objectively intolerable risk of harm’ that officials may not
ignore.” Id. (quoting Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 470 (1947)
and Farmer v. Brennan, 511 U.S. 825, 846 (1994)) (citations omitted). Ultimately,
“an 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.” Id. (quotation
marks omitted).
Everyone acknowledges that Lockett suffered during his execution. But that
alone does not make out an Eighth Amendment claim. Here, the Amended Complaint
describes exactly the sort of “innocent misadventure” or “isolated mishap” that the
Baze plurality excuses from the definition of cruel and unusual punishment. Id. Thus,
Lockett’s suffering did not run afoul of the Eighth Amendment. While Lockett’s
Estate takes issue with the three-drug protocol and the midazolam amount used in
Lockett’s execution, everyone agrees9 that Lockett’s suffering arose from IV
infiltration: the drugs leaked into the surrounding tissue rather than into his
bloodstream, keeping Lockett from receiving full doses of the drugs. Nowhere does
Lockett’s Estate allege that the execution team placed the IV or covered Lockett’s
groin area to cause Lockett pain. Rather, concerns for Lockett’s dignity and privacy

9

See, e.g., Appellant’s Reply Br. at 18 (“Defendants knew that once it was
clear that the midazolam had not entered Mr. Lockett’s body he was not
unconscious.”); id. at 19–20 (“One does not need a medical degree to comprehend
that when a condemned prisoner is not successfully rendered unconscious, the
administration of paralytic drugs will cause him unbearable, excruciating pain.”).
17

 led to the covering and to no one in the execution chamber seeing that not all of the
execution drugs had entered Lockett’s bloodstream. Any holding that this mistake
would convert an otherwise-constitutional execution into an Eighth Amendment
violation could not withstand Baze’s reasoning, as later reaffirmed in Glossip v.
Gross, 135 S. Ct. 2726 (2015). Thus, the only clearly established law we have on this
topic at least strongly indicates that Lockett’s Estate has no claim for torture or
deliberate indifference.
3. Efforts to Establish an IV
Lockett’s Estate argues that repeated attempts to establish an IV before the
execution constituted cruel and unusual punishment in violation of the Eighth
Amendment. But unlike Lockett’s appellate briefing, his Amended Complaint does
not allege that he was “repeatedly stab[bed]” with a needle or any of the other facts
Lockett’s Estate uses to support this claim. Appellant’s Opening Br. at 17. The
Amended Complaint alleges only that Dr. Doe and the EMT placed the central IV
line “despite the ample availability of sites that could have provided peripheral
venous-access.” Appellant’s App. vol. 1 at 173. For supporting facts, Lockett’s Estate
asks us to take judicial notice of news articles and Justice Sotomayor’s dissent in
Glossip discussing Lockett’s execution.
Under the Federal Rules of Evidence, courts may take judicial notice of a fact
“that is not subject to reasonable dispute because it: (1) is generally known within the
trial court’s territorial jurisdiction; or (2) can be accurately and readily determined
from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid.
18

 201(b). “Care must be taken that the requisite notoriety exists. Every reasonable
doubt upon the subject should be resolved promptly in the negative.” Brown v. Piper,
91 U.S. 37, 43 (1875).
We will not take judicial notice of the news articles to which Lockett’s Estate
directs us because this is not the appropriate setting for judicial notice. Judicial notice
is proper when a fact is beyond debate, for instance, what time the sun sets on a given
day. When courts have taken judicial notice of contents of news articles, they have
done so for proof that something is publically known, not for the truth of the article’s
other assertions. See Benak ex rel. All. Premier Growth Fund v. All. Cap. Mgmt. L.P.,
435 F.3d 396, 401 n.15 (3d Cir. 2006) (“The[ articles] serve only to indicate what
was in the public realm at the time, not whether the contents of those articles were in
fact true.”). Here, Lockett’s Estate asks us to accept as true the contents of the
articles. We decline to do so.
We also will not take judicial notice of the discussion of Lockett’s execution
in Glossip. “On a Rule 12(b)(6) motion to dismiss, when a court takes judicial notice
of another court’s opinion, it may do so ‘not for the truth of the facts recited therein,
but for the existence of the opinion, which is not subject to reasonable dispute over
its authenticity.’” Lee v. City of L.A., 250 F.3d 668, 690 (9th Cir. 2001) (quoting S.
Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Grp. Ltd., 181 F.3d 410, 426
(3d Cir. 1999)).
Based on the facts alleged in the Amended Complaint, nothing supports
Lockett’s Estate’s claim relating to the efforts to establish the IV. Even so, we doubt
19

 that attempting to place an IV for an hour would violate the Eighth Amendment
under Baze. See Baze, 553 U.S. at 55 (finding no violation where the execution
protocol allowed the IV team one hour to establish an IV). Regardless, because no
factual basis supports this claim, it fails.
4. Deliberate Indifference to Serious Medical Needs
Lockett’s Estate asserts in its fourth claim that Appellees violated the Eighth
Amendment by being deliberately indifferent to “Lockett’s serious medical need to
not have a lingering death” and “to die as quickly and painlessly as was humanly
possible.” Appellant’s Opening Br. at 21; Appellant’s App. vol. 1 at 168. In support
of its position that Appellees acted with deliberate indifference to Lockett’s serious
medical needs, the Estate argues that Appellees “had the ability to administer a fatal
dosage and put [Lockett] out of his apparent misery, but made the deliberate and
callous decision to not use the available drugs to relieve [him] from his unnecessary
and wanton pain.” Appellant’s Opening Br. at 23.
At the same time, the Estate acknowledges that the EMT and later Dr. Doe had
difficulty locating and placing the IV. The Estate recounts that these two people tried
but were unable to insert the IV, “all over [Lockett’s] body,” including in his neck,
arms, and feet, before placing it in a vein in Lockett’s leg. Id. at 17-18. The Estate
also states that Dr. Doe, after discovering that the vein had collapsed, advised the
director that no other suitable vein was available. Id. at 8. So in making this claim,
the Estate assumes that Dr. Doe could have readily found another vein for the IV, and
that the drugs for Warner’s impending execution were nearby to use. The Estate
20

 doesn’t argue that Appellees intentionally set the IV to collapse the vein to cause
Lockett’s suffering. Instead, it argues that Appellees “had no plan to respond, and did
nothing to prevent Mr. Lockett from a lingering, tortured death.”10 Id. at 23 (citing
Appellant’s App. vol. 1 at 153-54).
“Prison officials violate the Eighth Amendment’s prohibition against cruel and
unusual punishment when they act deliberately and indifferently to serious medical
needs of prisoners in their custody.” Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir.
1999). “Deliberate indifference has both an objective and subjective component.” Id.
To meet the objective component, “[t]he medical need must be sufficiently serious.”
Id. A medical need is sufficiently serious “if the condition ‘has been diagnosed by a
physician as mandating treatment or is so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention.’” Al-Turki v. Robinson, 762 F.3d
1188, 1192–93 (10th Cir. 2014) (quoting Oxendine v. Kaplan, 241 F.3d 1272, 1276
(10th Cir. 2001)). To satisfy the subjective component, the plaintiff must show that
the defendant knew that the plaintiff “faced a substantial risk of harm and
disregarded that risk, ‘by failing to take reasonable measures to abate it.’” Hunt, 199
F.3d at 1224 (quoting Farmer, 511 U.S. at 847). The substantial-harm requirement
“may be satisfied by lifelong handicap, permanent loss, or considerable pain.”
Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001).

10

Though providing no record cite, the Estate also asserts that “[d]espite
obvious resistance, John Doe Executioners pushed the drugs into the tissue and
muscles.” Appellant’s Opening Br. at 18.
21

 In resolving this claim, we do not decide the Eighth Amendment issue.
Instead, we affirm the district court’s decision that Appellees’ actions and inactions
did not violate a clearly established Eighth Amendment right. The Estate has failed to
show “that the official[s] violated a statutory or constitutional right that was ‘clearly
established’ at the time of the challenged conduct.” Plumhoff v. Rickard, 134 S. Ct.
2012, 2023 (2014) (quoting al-Kidd, 563 U.S. at 735). “And a defendant cannot be
said to have violated a clearly established right unless the right’s contours were
sufficiently definite that any reasonable official in the defendant’s shoes would have
understood he was violating it.” Id. at 2023. “In other words, ‘existing precedent
must have placed the statutory or constitutional question’ confronted by the official
‘beyond debate.’” Id. (citation omitted). “Ordinarily, in order for the law to be clearly
established, there must be a Supreme Court or Tenth Circuit decision on point, or the
clearly established weight of authority from other courts must have found the law to
be as the plaintiff maintains.” Morris v. Noe, 672 F.3d 1185, 1196 (10th Cir. 2012)
(quoting Klen v. City of Loveland, Colo., 6641 F.3d 498, 511 (10th Cir. 2011)). But
because cases almost never have exactly the same circumstances, we require less that
way as conduct becomes more obviously egregious. Id. Here, we see no cases
announcing clearly established law that the Eighth Amendment commands, in these
circumstances, that Appellees hasten Lockett’s death more quickly than the 30
minutes it took. Again, as did the district court, we choose to affirm the dismissal of
this claim on the clearly-established-law prong.
5. Prolonged Execution
22

 Lockett’s Estate’s fourth claim for deliberate indifference to Lockett’s serious
medical needs fairly includes a claim for an Eighth Amendment violation based on
Lockett’s “prolonged, painful, and torturous execution.” Appellant’s Opening Br. at
1. We now analyze that claim separately. The Supreme Court has determined that, in
the execution context, “torture” and “cruel and unusual punishment” require that
executing officials mean to choose an execution method that will cause extra pain
beyond that necessary to carry out the death sentence. See Baze, 553 U.S. at 48
(noting that the bar on “torture” bans “the deliberate infliction of pain for the sake of
pain—‘superadd[ing]’ pain to the death sentence through torture and the like”).
Although we accept that Lockett’s execution was “unnecessarily prolonged and
horribly painful,” Appellant’s Opening Br. at 17, the problems during Lockett’s
execution fit under Baze’s “isolated mishap” exception for events that, “while
regrettable, do[] not suggest cruelty, or that the procedure at issue gives rise to a
substantial risk of serious harm.” Baze, 553 U.S. at 50 (quotation marks omitted).
Thus, Appellees violated no clearly established law despite Lockett suffering pain
during his execution. The IV infiltration was an “isolated mishap,” not something
designed to cause additional pain. Because Oklahoma has changed its execution
protocol to incorporate several procedures Baze spoke favorably about,11 we likely

11

See Glossip, 135 S. Ct. at 2734–35 (noting that Oklahoma now lists four
possible drug combinations and has enacted safeguards, including these six: “(1) the
insertion of both a primary and backup IV catheter, (2) procedures to confirm the
viability of the IV site, (3) the option to postpone an execution if viable IV sites
cannot be established within an hour, (4) a mandatory pause between administration
23

 will never confront another Oklahoma execution presenting the same circumstances
as Lockett’s execution.
6. New Drug Combination
Lockett’s Estate challenges Oklahoma’s using a new drug protocol in
Lockett’s execution. Lockett’s Estate alleges that Appellees should have been on
notice that midazolam “could cause unnecessary pain and a lingering death” because
the midazolam levels were too low and the Oklahoma Supreme Court had issued a
stay due to lack of information about the drug. Appellant’s Opening Br. at 25. But
this mischaracterizes the Oklahoma Supreme Court’s holding, which did not rest its
stay on a lack of information about midazolam. Instead, the court held that, because
Lockett had no information about the execution drugs, a stay was warranted. See
Lockett v. Evans, 356 P.3d 58, 59 (Okla. 2014). The Oklahoma Supreme Court lifted
the stay two days later when Lockett had been “provided with the identity of the drug
or drugs to be used in the execution[] and with the dosages to be injected.” Lockett v.
Evans, 330 P.3d 488, 491 (Okla. 2014). Those opinions did not concern midazolam
or midazolam levels.
Additionally, Lockett’s Estate fails to state a claim based on the use of
uncompounded midazolam; rather, the paragraphs of the Amended Complaint

of the first and second drugs, (5) numerous procedures for monitoring the offender’s
consciousness, including the use of an electrocardiograph and direct observation, and
(6) detailed provisions with respect to the training and preparation of the execution
team”).

24

 Lockett’s Estate relies on complain that compounded drugs, specifically midazolam,
can be impure or lack potency. See Appellant’s App. vol. 1 at 167; Appellant’s
Opening Br. at 25. And Lockett’s Estate has abandoned claims relating to
compounded drugs. See Appellant’s Reply Br. at 6 n.5.
Even if the Amended Complaint did sufficiently allege that midazolam was a
constitutionally unacceptable execution drug, Glossip would defeat that argument. In
Glossip, the Court noted that because capital punishment is constitutional, “‘[i]t
necessarily follows that there must be a [constitutional] means of carrying it out.’”
Glossip, 135 S. Ct. at 2732–33 (alterations in original) (quoting Baze, 553 U.S. at
47). The Glossip Court also concluded that the district court had not clearly erred in
finding that “sodium thiopental and pentobarbital are now unavailable to Oklahoma’s
Department of Corrections.” Id. at 2738. The Court further held that “[t]he District
Court did not commit clear error when it found that midazolam is highly likely to
render a person unable to feel pain during an execution.” Id. at 2739. Based on the
Court’s acknowledgment that states were having difficulties acquiring execution
drugs, see id. at 2733, we can follow the Court’s logic to say that if sodium thiopental
and pentobarbital are unavailable, some other method, potentially including a new
drug combination, must be constitutional. Oklahoma did not switch to midazolam in
an effort to inflict additional pain. Thus, we conclude that Oklahoma’s use of
midazolam comports with the Eighth Amendment. See Baze, 553 U.S. at 103
(Thomas, J., concurring) (“But absent malevolence or a purpose to inflict
unnecessary pain, the Court [in Resweber] concluded that the Constitution did not
25

 prohibit Louisiana from subjecting the petitioner to [the risks of electrocution] a
second time in order to carry out his death sentence.” (quotation marks omitted));
Furman v. Georgia, 408 U.S. 238, 326 (1972) (Marshall, J., concurring) (noting that
the Resweber Court held “that the legislature adopted electrocution for a humane
purpose, and that its will should not be thwarted because, in its desire to reduce pain
and suffering in most cases, it may have inadvertently increased suffering in one
particular case”). Thus, any claim based solely on the use of midazolam fails.
7. Failure to Adequately Train and Supervise Personnel
Lockett’s Estate claims that “Defendants Patton and Trammell did not
promulgate the policies necessary to prevent Mr. Lockett from being executed in a
way that violated the Eighth Amendment.” Appellant’s Opening Br. at 27. Lockett’s
Estate lists eight procedural failures:
Defendants’ [sic] failed to (1) consult with experts, (2) require the
attempted placement of a peripheral IV access line before placing a
central line, (3) require establishment of a backup IV line, (4) require
observation of the IV access site by an execution team member, (5)
require a backup dosage of medications, (6) require a specific level of
experience and training for personnel, (7) limit their own discretion, and
(8) vest ultimate decision-making in someone with medical training or
establish other checks and balances.
Id. Although Lockett’s Estate “does not suggest that there is a ‘clearly established’
list of the aforementioned requirements of which Defendants should have been
aware,” it directs us to procedures approved by the Baze plurality. Id. But Baze did
not impose those approved procedures as a constitutional floor, so Lockett’s Estate
cannot prevail simply by noting that Lockett’s execution lacked some of those
26

 procedures. And it’s worth noting that Oklahoma has now adopted some of these
procedural measures. See Glossip, 135 S. Ct. at 2753 (noting that Oklahoma now
requires a backup IV and monitoring of the IV site, and Oklahoma now sets out
“detailed provisions” on the training and preparation of the execution team).
Lockett’s Estate claims that “a reasonable officer would have been on notice
that the failure to promulgate basic policies to protect against painful, barbaric, and
torturous executions violate[s] the Eighth Amendment.” Appellant’s Opening Br. at
27. But this provides nothing beyond the “high level of generality” that the Supreme
Court has concluded will not suffice to show clearly established law. Al-Kidd, 563
U.S. at 742. As in al-Kidd, where the plaintiff tried to rely on the “broad history and
purposes of the Fourth Amendment” as clearly established law, Lockett’s Estate’s
general pronouncement is too broad to show clearly established law. Id. (quotation
marks omitted).
In addition, in its fifth claim, Lockett’s Estate argues that Warden Trammell
and Director Patton are liable under the Eighth Amendment for failure to train
execution-team members on how to properly carry out an execution. In this regard, it
cites City of Canton v. Harris, 489 U.S. 378 (1989), which provides § 1983 liability
on this basis, but “only where the failure to train amounts to deliberate indifference
to the rights of persons with whom the police come into contact.” City of Canton, 489
at 388. Lockett’s Estate cites no cases supporting such liability in our context.
Even if we were to accept the City of Canton standard here, the claim would
fail. Although Oklahoma did not employ every safeguard possible, it did employ
27

 some: for example, a doctor and EMT placed the IV, and a doctor remained present
in the execution chamber to declare when Lockett became unconscious. Lockett’s
execution likely would have gone smoother if Oklahoma had required a backup IV
line and required an unobstructed view of the IV site by the medical personnel. But
these deficiencies were not so likely to result in a violation of the Eighth Amendment
that they amount to deliberate indifference.
Under Baze, “an inmate cannot succeed on an Eighth Amendment claim
simply by showing one more step the State could take as a failsafe for other,
independently adequate measures.” Baze, 553 U.S. at 60–61. And Baze also tells us
that “[a] State with a lethal injection protocol substantially similar to the protocol we
uphold today would not create a risk that meets” the standard for a stay of execution
based on an unconstitutional method of execution. Id. at 61. This comment responded
to Justice Stevens’s concerns that Baze might confuse other states. See id.; id. at 71
(Stevens, J., concurring). Certainly, in Baze, Kentucky’s protocol bettered
Oklahoma’s as used here. For instance, Kentucky required a primary and backup IV,
two sets of lethal-injection drugs, and an execution team that had participated in at
least ten practice sessions per year. Id. at 55 (plurality opinion). The first two
requirements would likely solve any problem resulting from an insufficient dose of
sodium thiopental. See id. (“These redundant measures ensure that if an insufficient
dose of sodium thiopental is initially administered through the primary line, an
additional dose can be given through the backup line before the last two drugs are
injected.” (emphasis added)). At most, Appellees were on notice that properly
28

 declaring the inmate unconscious had constitutional import. Because Appellees have
violated no clearly established law, this claim fails.
Appellees point to Hooper v. Jones, 491 F. App’x 928, 930 (10th Cir. 2012)
(unpublished), as proof that the Tenth Circuit had approved of Oklahoma’s execution
protocol. But that case is not precedential and has little persuasive value because its
facts markedly differ from ours. Perhaps most importantly, Oklahoma was then using
pentobarbital. In Hooper, we approved of Oklahoma’s protocols, which did not
require backup doses. But we found meritless the inmate’s concerns about potential
IV problems, partly because two IV lines were placed. See id. at 930 n.2. Thus,
Hooper provides little help here, where midazolam was used and the execution’s
main flaw was using a single IV line and not checking that it was delivering the drugs
into Lockett’s system.
8. Aggregate Eighth Amendment Claim
Lockett’s Estate argues that “[e]ven if none of Mr. Lockett’s individual
allegations rise to the level of misconduct required under the Eighth Amendment, the
aggregate of these allegations amounts to an Eighth Amendment violation based on
the totality of the circumstances.” Appellant’s Opening Br. at 28 (citation omitted).
In support, Lockett’s Estate cites to a Fourth Amendment case, United States v.
Arvizu, 534 U.S. 266 (2002), an Eighth Amendment Excessive Fines Clause case,
United States v. One Parcel Property Located at Lot 85, 100 F.3d 740 (10th Cir.
1996), and an Eighth Amendment prison-conditions case, Clay v. Miller, 626 F.2d
345 (4th Cir. 1980). Lockett’s Estate provides us with no case suggesting that an
29

 aggregate Eighth Amendment claim exists in this context. We decline to establish
such a claim now. Because there is no clearly established law that Appellees could
have violated, this claim fails.
B. Procedural Due Process
Lockett’s Estate argues in its sixth claim that Lockett had a liberty interest12 in
the use of an ultrashort-acting barbiturate during his execution. Before November
2011, Oklahoma in fact required this. 22 Okla. Stat. § 1014(A) (2010). But in
November 2011, the Oklahoma legislature amended the statute to instead require
only “the administration of a lethal quantity of a drug or drugs.” 22 Okla. Stat. §
1014(A) (2016).
“States may under certain circumstances create liberty interests which are
protected by the Due Process Clause.” Sandin v. Conner, 515 U.S. 472, 483–84
(1995). “But these interests will be generally limited to freedom from restraint which,
while not exceeding the sentence in such an unexpected manner as to give rise to
protection by the Due Process Clause of its own force, nonetheless imposes atypical
12

Lockett’s Estate also asserts a procedural-due-process violation based on a
life interest. But the only supporting argument it offers is that “[i]t is probably that in
the context of protecting a life interest under due process, as in this case, more robust
procedural protections than those specified in [Sandin v. Conner, 515 U.S. 472
(1995)] might apply.” Appellant’s Opening Br. at 31 n.9. Lockett’s Estate then notes
that “this court doesn’t need to reach that question because as explained above, even
under Sandin the Appellant is entitled to reversal.” Id. Because Lockett’s Estate
offers us nothing beyond the Sandin standard for liberty interests, we analyze that
argument alone. Even if Lockett’s Estate had presented this argument more
thoroughly, we doubt that Lockett’s Estate has pleaded a claim for deprivation of
Lockett’s life interest here—he was afforded due process, a jury trial and numerous
appeals, before his execution.
30

 and significant hardship on the inmate in relation to the ordinary incidents of prison
life.” Id. at 484 (citations omitted).
As the district court discussed in its order dismissing Lockett’s Estate’s case,
this sort of claim is potentially viable under Pavatt v. Jones, 627 F.3d 1336 (10th Cir.
2010). See id. at 1340–41. But we decided Pavatt under the previous version of
section 1014(A), which, as noted, required an ultrashort-acting barbiturate. Whatever
persuasive value Pavatt has is lessened by Oklahoma’s having repealed this
requirement before Lockett’s execution. In addition, we are uncertain how Sandin’s
“atypical and significant hardship” language would even fit in the execution realm. If
it were an atypical and significant hardship to be executed without sodium thiopental,
no further lethal-injection executions could happen since sodium thiopental is now
unavailable. Additionally, a death sentence is by its nature an atypical and significant
hardship. Regardless, even if Lockett’s Estate could establish a liberty interest in the
use of a certain category of execution drugs, any such interest was certainly not
clearly established.
Nor did Pavatt reach the ultimate issue of whether the inmate had a liberty
interest in an ultrashort-acting barbiturate being used. Nothing in the record indicated
“that defendants ha[d] denied [the inmate] the opportunity to challenge the protocol
either administratively or in the Oklahoma state courts.” Pavatt, 627 F.3d at 1341.
When we decided Pavatt, the inmate had three weeks until his execution date. See id.
at 1337–38 (opinion published on December 14, 2010, and execution scheduled for
January 4, 2011). Here, Lockett had two weeks. During that time, he was able to
31

 obtain two opinions from the Oklahoma Supreme Court. See Lockett v. Evans, 356
P.3d 58 (Okla. 2014) (April 21); Lockett v. Evans, 330 P.3d 488 (Okla. 2014) (April
23). Because Lockett had the opportunity to exercise his Due Process rights to
challenge the drug protocol and failed to do so, Lockett’s Estate cannot now
complain of a liberty-interest violation.
C. Right to Counsel During an Execution
Lockett’s Estate attempts to assert a constitutional right to counsel throughout
an execution. It asks this court to recognize a constitutional right to counsel “when an
execution procedure is producing unexpected and painful results.” Appellant’s
Opening Br. at 33 n.11. Lockett’s Estate points to no law that would support a right
to counsel throughout an execution, and we struggle to envision what such a right
would look like in practice. Thus, Appellees have violated no clearly established law.
D. Quasi-Judicial Immunity
Dr. Doe also asserts that he is entitled to quasi-judicial immunity because
Lockett’s death sentence “was issued and carried out pursuant to statutes and judicial
authority.” Doe Resp. Br. at 31. Because we find that Dr. Doe is entitled to qualified
immunity, we do not reach this argument.
III.

Conclusion
For the reasons stated above, we affirm the district court.

32

 No. 15-6134, Estate of Clayton Lockett v. Fallin, et al.
MORITZ, J., concurring.
I join much of the majority’s well-reasoned opinion, including its ultimate
decision to affirm the district court’s dismissal of the Estate’s complaint. See Maj. Op.
33. I write separately, however, because I question the accuracy of—or at the very least,
the necessity of reaching—some of the majority’s interim conclusions.
At the outset, I note that the majority commits to narrowly resolving the many
qualified-immunity issues presented in this appeal by focusing, as the district court did,
solely on the Estate’s failure to show that defendants violated clearly established law. See
Maj. Op. 11 (expressly “declin[ing] . . . to decide each of the constitutional-violation
questions first”); Maj. Op. 9-10 (noting agreement with, and affirmance of, district
court’s dismissal based on failure to show defendants violated clearly established law).
But as I read the majority opinion, it repeatedly, and in my view, unnecessarily, decides
the constitutional questions. See, e.g. Maj. Op. 17 (“Lockett’s suffering did not run afoul
of the Eighth Amendment.”); Maj. Op. 20 (suggesting repeated needle sticks would not
violate Eighth Amendment); Maj. Op. 26 (“Thus, we conclude that Oklahoma’s use of
midazolam comports with the Eighth Amendment.”).
As more fully discussed below, while I agree with the majority’s professed intent
to resolve the qualified immunity issues on the clearly-established prong, I do not agree
with those portions of the opinion that conflict with that professed intent.

 1.

Defendants’ Use of Midazolam

First, I respectfully part ways with my colleagues in evaluating whether
defendants violated Lockett’s constitutional rights by using a “[n]ew [d]rug
[c]ombination.” Maj. Op. 24 (addressing App. vol. 1, 163-165). In resolving what
remains of this claim,1 the majority affirmatively holds that “Oklahoma’s use of
midazolam comports with the Eighth Amendment.” Maj. Op. 26. But I see no reason to
reach this constitutional question. As I read its opening brief, the Estate has abandoned its
general midazolam claim.
The Estate did allege below that defendants’ general use of midazolam violated
Lockett’s Eighth Amendment rights. In support, the Estate asserted that midazolam is
“incapable of producing a state of unawareness” and that “it cannot relieve pain.”2 App.

1

As the majority correctly notes, the Estate’s opening brief also alleges that
defendants violated Lockett’s Eighth Amendment rights by using compounded drugs.
Aplt. Br. 24-26. But as the majority points out, the Estate has since withdrawn that
allegation in light of defendants’ statement that “no compounded drugs were used in
Lockett’s execution.” Maj. Op. 4 n.1.
2
The majority declines to accept these allegations as true, and therefore doesn’t
address them in analyzing this claim. Maj. Op. 6 n.5, 24-26. Again, while I wouldn’t
reach this abandoned claim, if I were to analyze it I would find the majority’s analysis
flawed and I would accept these allegations as true. According to the majority,
“[a]sserting that midazolam is ineffective in rendering an inmate unconscious essentially
asserts that the use of midazolam is constitutionally deficient, a legal conclusion that we
need not credit.” Id. at 6 n.5. I respectfully disagree. To be sure, the Estate’s factual
allegations about midazolam’s efficacy may have legal implications—as all relevant
factual allegations in a complaint surely must. But that doesn’t necessarily make them
legal conclusions. And nothing in Zink v. Lombardi, 783 F.3d 1089 (8th Cir.), cert.
denied, 135 S. Ct. 2941 (2015), indicates otherwise. Contrary to the majority’s
suggestion, see Maj. Op. 6 n.5, the Zink court didn’t refuse to accept as true plaintiffs’
factual allegations about the potential risks of using compounded pentobarbital. See 783
F.3d at 1099-1103. It simply found those potential risks too hypothetical to demonstrate
2

 vol. 1, 164. But on appeal, the Estate has pursued a much narrower course. Rather than
arguing that defendants violated Lockett’s Eighth Amendment rights by using midazolam
generally, the Estate argues only that defendants violated Lockett’s Eighth Amendment
rights by using an insufficient dosage of midazolam. See Aplt. Br. 25.
It appears that the Estate strategically shifted its argument in an effort to
distinguish this case from Warner v. Gross, 776 F.3d 721, 726, 736 (10th Cir.) (affirming
district court’s denial of preliminary injunction and denying plaintiffs’ emergency motion
for stay of execution despite Oklahoma’s proposed use of midazolam as execution drug),
aff’d sub nom. Glossip v. Gross, 135 S. Ct. 2726 (2015). In affirming this court’s decision
in Warner, the Supreme Court distinguished between Oklahoma’s current execution
protocol (which calls for 500 milligrams of midazolam) and the execution protocol in
place when Oklahoma executed Lockett (which instead “called for the administration of
100 milligrams of midazolam”). See Glossip, 135 S. Ct. at 2734. Thus, the Estate argues
on appeal, the district court erred in relying on our opinion in Warner “to justify its
dismissal of [the Estate’s] claim pertaining to . . . use of an insufficient level of”
midazolam, as opposed to the use of midazolam generally. Aplt. Br. 26.
Whatever the Estate’s motive for making this strategic switch, the result is clear:
the Estate has abandoned its claim that defendants violated Lockett’s Eighth Amendment
rights by using midazolam in favor of an argument that defendants violated Lockett’s
Eighth Amendment rights by using an insufficient amount of midazolam. Accordingly, I

that the drug was “‘sure or very likely’ to cause serious harm or severe pain.” Id. at 1101
(citation omitted).
3

 would find the former argument waived and, unlike the majority, I would decline to
address it.3
Moreover, I would decline to address the Estate’s current formulation of this
argument—i.e., that defendants violated Lockett’s Eighth Amendment rights by using an
insufficient dosage of midazolam—because the Estate didn’t advance that argument
below. Instead, the complaint asserts that midazolam is inherently incapable of
“producing a state of unawareness” or of “reliev[ing] pain.” App. vol. 1, 164 (“One of the
characteristics of midazolam is that it cannot relieve pain.”). But the complaint never
suggests that midazolam’s ability to produce unawareness or relieve pain varies
depending on the dosage administered.

3

Even if defendants’ general-use-of-midazolam claim is properly before us, I
question the majority’s emphasis, in resolving that claim, on the Estate’s failure to allege
that defendants chose to use midazolam in order to inflict pain. See Maj. Op. 25-26
(“Oklahoma did not switch to midazolam in an effort to inflict additional pain. Thus, we
conclude that Oklahoma’s use of midazolam comports with the Eighth Amendment.”
(citing Baze v. Rees, 553 U.S. 35, 103 (2008) (Thomas, J., concurring))).
That intent to cause pain is an element of any successful method-of-execution
claim was, of course, the view of two concurring Justices in Baze. See 553 U.S. at 94
(Thomas, J., concurring) (“A method of execution violates the Eighth Amendment only if
it is deliberately designed to inflict pain.”). But the controlling plurality opinion in Baze
indicates that something less than the intentional infliction of pain may suffice, at least in
the context of a pre-execution Eighth Amendment claim: a showing that a prison official
is aware that the chosen execution method poses a “substantial risk of serious harm,” but
nevertheless adopts that method in the face of a known and feasible alternative that will
significantly reduce that risk. Id. at 52 (plurality opinion) (citation and internal quotation
marks omitted). See Glossip, 135 S. Ct. at 2738 n.2 (explaining that “THE CHIEF
JUSTICE’s opinion in Baze sets out the holding of the case,” while only “Justices
SCALIA and THOMAS took the broader position that a method of execution is
consistent with the Eighth Amendment unless it is deliberately designed to inflict pain”).
Accordingly, I question whether the Estate’s failure to allege that defendants chose
midazolam in order to cause Lockett’s suffering is dispositive of this claim.
4

 In fact, to the extent the complaint discusses the constitutional import of the
dosage that defendants used in Lockett’s execution at all, it suggests that the dosage was
unconstitutionally high, not unconstitutionally low. See, e.g., id. at 165 (“As used in the
procedure the high dosage of midazolam carries a substantial risk of producing tonicclonic seizures and convulsions.”); (“There is a substantial risk of a paradoxical reaction
when midazolam is administered in high doses to individuals with a history of aggression
or impulsivity.”).
Because the complaint neither explicitly asserts that the defendants violated
Lockett’s constitutional rights by administering an insufficient dosage of midazolam, nor
contains factual allegations that would support such a claim, I would decline to consider
whether defendants’ failure to use a higher dosage of midazolam violated Lockett’s
Eighth Amendment rights. Accordingly, I do not join the portion of the majority opinion
addressing the Estate’s midazolam claim.
2.

Torture

Likewise, I decline to join the portion of the majority opinion evaluating Lockett’s
torture claim. See Maj. Op. 14-18 (discussing App. vol. 1, 161-63). “[I]t is safe to affirm
that punishments of torture” violate the Eighth Amendment. Baze, 553 U.S. at 48
(citation and internal quotation marks omitted). But the question here isn’t whether, “as a
broad general proposition,” torture violates the Eighth Amendment. Mullenix v. Luna,
136 S. Ct. 305, 308 (2015) (citation and internal quotation marks omitted). Rather, “[t]he
dispositive question is ‘whether the violative nature of [the defendants’] particular
conduct is clearly established.’” Id. (citation omitted).
5

 The Estate makes no effort to identify any “existing precedent” that might place
the question of whether defendants’ “particular conduct” in this case violated the Eighth
Amendment’s ban on torture “beyond debate.” Id. (citation and internal quotation marks
omitted). Instead, the Estate relies solely on “broad general proposition[s].” Id. (citation
and internal quotation marks omitted). For instance, the Estate notes that the Eighth
Amendment proscribes “torture[] and other barbar(ous) methods of punishment” and “the
unnecessary and wanton infliction of pain,” Estelle v. Gamble, 429 U.S. 97, 102, 103
(1976) (citations and internal quotation marks omitted), and that “[p]unishments are cruel
when they involve torture or a lingering death.” In re Kemmler, 136 U.S. 436, 447
(1890). See Aplt. Br. 15-17.
While it’s true that there need not be a “case directly on point,” the Supreme Court
has repeatedly warned us “not to define clearly established law at a high level of
generality.” Mullenix, 136 S. Ct. at 308 (citation and internal quotation marks omitted).4
And that is precisely what the Estate’s citations to Estelle and Kemmler invite us to do
here. Because the Estate cites no authority that would have put defendants on notice that
their particular conduct violated the Eighth Amendment’s prohibition on torture, the
Estate fails to satisfy the clearly-established prong of the qualified-immunity analysis.
Accordingly, I would affirm the district court’s conclusion that defendants are entitled to
qualified immunity on the Estate’s torture claim on that basis alone, without addressing
4

Mullenix is a Fourth Amendment case, and the Court has explained that
“specificity is especially important in [that] context.” 136 S. Ct. at 308. Nevertheless, this
court has applied the same specificity requirement in the Eighth Amendment context.
See, e.g., Cox v. Glanz, 800 F.3d 1231, 1245 n.6 (10th Cir. 2015); Henderson, 813 F.3d at
953.
6

 whether defendants violated Lockett’s Eighth Amendment right to be free from torture. I
therefore do not join the portion of the majority opinion addressing the Estate’s torture
claim.
3.

Deliberate Indifference

Similarly, while I agree with the majority that the language of the Estate’s
“torture” claim is broad enough to alternatively allege that defendants were deliberately
indifferent to a risk of substantial harm, I would again find it unnecessary to resolve
whether the Estate’s allegations are sufficient to establish that defendants violated
Lockett’s constitutional rights. See Maj. Op. 14-18 (addressing App. vol. 1, 161-63).
In its opening brief, the Estate relies primarily on its allegations of repeated needle
sticks to support this alternative theory. Aplt. Br. 18-20. But like the majority, I would
decline to consider these allegations because (1) they don’t appear in the complaint and
(2) they are not subject to judicial notice. See Maj. Op. 18-19.
The only remaining factual allegation the Estate relies on in advancing this claim
on appeal is its assertion that defendants obscured the injection site with a towel. Aplt.
Br. 18. But even assuming that Lockett had a constitutional right to have defendants
monitor the injection site for the duration of his execution, that right wasn’t clearly
established at the time. See Henderson, 813 F.3d at 953 (noting that while a case on point
isn’t required, existing precedent must place constitutional question beyond debate).
Accordingly, I would affirm solely on that basis, without addressing whether defendants
were deliberately indifferent to a “substantial risk of serious harm” in failing to monitor

7

 the injection site. See Baze, 553 U.S. at 50 (citation and internal quotation marks
omitted).5
Moreover, even if I reached the constitutional question, I would confine my
analysis to the factual allegations that are properly before us. Because I agree that we
shouldn’t take judicial notice of facts that don’t appear in the complaint, I would—unlike
the majority—decline to speculate as to whether those same facts might establish an
Eighth Amendment violation. Compare Maj. Op. 18 (declining to take judicial notice of
Estate’s allegation that defendants “repeatedly stab[bed]” Lockett with a needle), with

5

The majority acknowledges that the Estate’s first claim for relief is sufficient to
allege deliberate indifference under Baze. See Rule 28(j) Letter, 1 (arguing that complaint
asserts deliberate-indifference claim under Baze); Maj. Op. 15 (acknowledging letter and
agreeing that complaint alleges deliberate-indifference claim). Yet—at least as far as I
can tell—the majority neither discusses nor applies the Baze plurality’s test for deliberate
indifference in evaluating this claim. Instead, the majority opinion appears to suggest that
because defendants didn’t “place[] the IV or cover[] Lockett’s groin area to cause
Lockett pain,” the Estate “has no claim for . . . deliberate indifference.” Maj. Op.18. But
as discussed above, see supra note 3, intent to inflict pain is not an element of a
deliberate-indifference claim under Baze. Compare Baze, 553 U.S. at 94 (Thomas, J.,
concurring), with Baze, 553 U.S. at 49-52 (plurality opinion). This conclusion likewise
calls into question the majority’s treatment of the Estate’s “[p]rolonged [e]xecution”
claim. See Maj. Op. 23 (indicating that Supreme Court precedent “require[s] that
executing officials mean to choose an execution method that will cause extra pain”); Maj.
Op. 23 (citing Baze plurality’s substantial-risk language, but nevertheless focusing on
fact that “IV infiltration was . . . not something designed to cause additional pain”).
Relatedly, I question the majority’s suggestion that defendants weren’t deliberately
indifferent to Lockett’s serious medical needs simply because they didn’t “intentionally
set the IV to collapse the vein to cause Lockett’s suffering.” Maj. Op. 21. True,
“deliberate indifference entails something more than mere negligence.” Farmer v.
Brennan, 511 U.S. 825, 835 (1994). But “the cases are . . . clear that it is satisfied by
something less than acts or omissions for the very purpose of causing harm.” Id.

8

 Maj. Op. 20 (nevertheless opining, “[W]e doubt that attempting to place an IV for an
hour would violate the Eighth Amendment under Baze”).
Finally, even if I were to consider whether repeated needle sticks amount to a
constitutional violation, I question whether Baze would necessarily resolve the matter, as
the majority suggests. See Maj. Op. 20 (describing Baze as “finding no violation where
the execution protocol allowed the IV team one hour to establish an IV”). In Baze, the
plurality rejected the petitioners’ assertion that that using an IV inserted after “more than
ten or fifteen minutes of unsuccessful attempts is dangerous because the IV is almost
certain to be unreliable.” 553 U.S. at 55 (plurality opinion) (citation and internal
quotation marks omitted). The Baze plurality didn’t address whether—as the Estate
alleges here, see Aplt. Br. 17-20—repeated needle sticks in and of themselves might at
some point raise constitutional concerns.
4.

Oklahoma’s Revised Execution Protocol

As a final matter, I am puzzled by the majority’s repeated references to
Oklahoma’s recent efforts to revise its execution protocol. See, e.g., Maj. Op. at 23-24, 24
n.11 (noting that “[b]ecause Oklahoma has changed its execution protocol,” this court
will likely “never confront another Oklahoma execution presenting the same
circumstances”); Maj. Op. 27 (“And it’s worth noting that Oklahoma has now adopted
some [new] procedural measures.”).
The question before us on appeal is whether defendants violated Lockett’s clearly
established constitutional rights. And Oklahoma’s recent remedial efforts cannot
retroactively influence the constitutional character of defendants’ past actions.
9

 Accordingly, Oklahoma’s efforts to revise its execution protocol have played no role in
my analysis of the legal issues in this case.

10