Clayton v. Lombardi

780 F.3d 899, 2015 U.S. App. LEXIS 4682, 2015 WL 1222275

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’s¹ 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 prejudice² for failure to utilize available state 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.

1 . The Honorable Nanette K. Laughrey, United States District Judge for the Western District of Missouri.

2 . On March 13, 2015, Clayton filed another § 1983 complaint in the Eastern District of Missouri after having filed in the Missouri Supreme Court a petition for writ of habeas corpus under Missouri Supreme Court Rule 91, which the Missouri Supreme Court denied on March 14, 2015.