UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) In the Matter of the ) Federal Bureau of Prisons’ Execution ) Protocol Cases, ) ) LEAD CASE: Roane, et al. v. Barr ) Case No. 19-mc-145 (TSC) ) THIS DOCUMENT RELATES TO: ) ) Roane, et al. v. Barr, 05-cv-2337 ) )
MEMORANDUM OPINION
Defendants have moved to dismiss Plaintiff Dustin Higgs’ as-applied Eighth Amendment
challenge in Count IV of his Complaint for failure to state a claim. Higgs’ Complaint contains
claims that are nearly identical to the claims pressed by the other plaintiffs in this consolidated
action except for Count IV, in which Higgs alleges that his asthma and his likely exposure to
COVID-19 while housed at USP Terre Haute make it especially likely that he will suffer from
severe and immediate flash pulmonary edema—a rapid accumulation of fluid in the lungs,
“which produces sensations of drowning and asphyxia.” (ECF No. 229-1, Higgs Compl. ¶¶ 81–
82.) Thus, he argues, Defendants are deliberately indifferent to the substantial risk of severe pain
brought about by “his asthma and likely exposure to COVID-19,” in violation of the Eighth
Amendment. (Id. ¶ 171.) Because this claim fails to present a non-speculative injury,
Defendants’ motion to dismiss Count IV for failure to state a claim will be GRANTED.
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim “tests the
legal sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). “To
survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
1 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible
when the factual content allows the court to “draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. A plaintiff’s factual allegations need not be “detailed,”
but “the Federal Rules demand more than ‘an unadorned, the-defendant-unlawfully-harmed-me
accusation.’” McNair v. District of Columbia, 213 F. Supp. 3d 81, 86 (D.D.C. 2016) (quoting
Iqbal, 556 U.S. at 678).
The Eighth Amendment forbids “long disused (unusual) forms of punishment that
intensif[y] the sentence of death with a (cruel) ‘superadd[ition]’ of ‘terror, pain, or disgrace,’”
Bucklew v. Precythe, 139 S. Ct. 1112, 1124 (2019) (quoting Baze v. Rees, 553 U.S. 35, 48
(2008)), but “[it] ‘does not demand the avoidance of all risk of pain in carrying out executions,’”
id. at 1125 (quoting Baze, 553 U.S. at 47). The Supreme Court requires inmates challenging a
method of execution to establish initially that the method “is ‘sure or very likely to cause serious
illness and needless suffering,’ and give[s] rise to ‘sufficiently imminent dangers.’” Glossip v.
Gross, 576 U.S. 863, 877 (2015) (quoting Baze, 553 U.S. at 50). “[T]here must be ‘a substantial
risk of serious harm,’ an ‘objectively intolerable risk of harm’ that prevents prison officials from
pleading that they were ‘subjectively blameless for purposes of the Eighth Amendment.’” Id.
(quoting Baze, 553 U.S. at 50); see also In re Fed. Bureau of Prisons’ Execution Protocol Cases,
980 F.3d 123, 133 (D.C. Cir. 2020) (finding that “[b]y pleading that the federal government’s
execution protocol involves a ‘virtual medical certainty’ of severe and torturous pain that is
unnecessary to the death process and could readily be avoided by administering a widely
2 available analgesic first, the Plaintiffs’ complaint properly and plausibly states an Eighth
Amendment claim”). 1
Taking the allegations in the Complaint as true, the court finds that Higgs has failed to
state a claim for relief. Higgs suffers from severe asthma, a condition for which he uses an
inhaler several times each day in order to breathe properly. (Higgs Compl. ¶ 99.) But he does
not claim that his asthma alone will increase the likelihood that he will suffer from flash
pulmonary edema. Rather, relying on the declaration of Dr. Joel Zivot, an associate professor at
the Emory University School of Medicine, he alleges that his “likely exposure to COVID-19
while in BOP custody increases the risk that he will have lung damage that augments the
sensations of drowning and suffocation caused by pentobarbital injection.” (Id. ¶ 102
(referencing Higgs Compl. Ex. C, Zivot Decl. at 5).) In fact, Higgs claims that, given his
underlying respiratory condition and his confinement in a facility with a growing COVID-19
outbreak, “executing him pursuant to the 2019 Protocol is ‘virtually certain to cause extreme
pain and suffering.’” (Id. ¶ 103 (quoting Zivot Decl. at 6.) He also presents evidence indicating
the prevalence of COVID-19 in correctional facilities, particularly USP Terre Haute. (See id.
¶¶ 94–95.)
Assuming all these statements are true, Higgs’ as-applied claim rests on two assumptions:
first, that he will contract COVID-19, and second, that if he contracts COVID-19, he is likely to
have lung damage that augments the sensations of drowning and suffocation caused by
pentobarbital injection. But these assumptions are insufficient to state a plausible, as-applied
1 Plaintiff must also “plead and prove a known and available alternative,” Glossip, 576 U.S. at 880, that is “‘feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain,’” id. at 877 (quoting Baze, 553 U.S. at 52). The court need not reach this issue given its finding that Higgs has failed to state a non-speculative claim for relief. 3 Eighth Amendment claim, let alone to meet the pleading standards of Fed. R. Civ. P. 8, which
require “a short and plain statement of the claim showing that the pleader is entitled to relief.”
See Twombly, 550 U.S. at 555 (quoting 5 C. Wright & A. Miller, Federal Practice and
Procedure § 1216 (3d. 2004)) (““[T]he pleading must contain something more . . . than . . . a
statement of facts that merely creates a suspicion [of] a legally cognizable right of action.”). It is
axiomatic that “[f]actual allegations must be enough to raise a right to relief above the
speculative level.” Id.
Higgs has not alleged facts establishing an injury—he has proffered only a hypothetical
injury. Indeed, if he does not contract COVID-19, his Count IV as-applied challenge fails. He
acknowledges that he has not tested positive for COVID-19, nor has he any reason to believe that
he contracted the virus aside from that fact that he is incarcerated. (See Higgs Compl. ¶ 102.)
Thus, given the speculative nature of the allegations in the Complaint, the court is unable to find
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) In the Matter of the ) Federal Bureau of Prisons’ Execution ) Protocol Cases, ) ) LEAD CASE: Roane, et al. v. Barr ) Case No. 19-mc-145 (TSC) ) THIS DOCUMENT RELATES TO: ) ) Roane, et al. v. Barr, 05-cv-2337 ) )
MEMORANDUM OPINION
Defendants have moved to dismiss Plaintiff Dustin Higgs’ as-applied Eighth Amendment
challenge in Count IV of his Complaint for failure to state a claim. Higgs’ Complaint contains
claims that are nearly identical to the claims pressed by the other plaintiffs in this consolidated
action except for Count IV, in which Higgs alleges that his asthma and his likely exposure to
COVID-19 while housed at USP Terre Haute make it especially likely that he will suffer from
severe and immediate flash pulmonary edema—a rapid accumulation of fluid in the lungs,
“which produces sensations of drowning and asphyxia.” (ECF No. 229-1, Higgs Compl. ¶¶ 81–
82.) Thus, he argues, Defendants are deliberately indifferent to the substantial risk of severe pain
brought about by “his asthma and likely exposure to COVID-19,” in violation of the Eighth
Amendment. (Id. ¶ 171.) Because this claim fails to present a non-speculative injury,
Defendants’ motion to dismiss Count IV for failure to state a claim will be GRANTED.
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim “tests the
legal sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). “To
survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
1 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible
when the factual content allows the court to “draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. A plaintiff’s factual allegations need not be “detailed,”
but “the Federal Rules demand more than ‘an unadorned, the-defendant-unlawfully-harmed-me
accusation.’” McNair v. District of Columbia, 213 F. Supp. 3d 81, 86 (D.D.C. 2016) (quoting
Iqbal, 556 U.S. at 678).
The Eighth Amendment forbids “long disused (unusual) forms of punishment that
intensif[y] the sentence of death with a (cruel) ‘superadd[ition]’ of ‘terror, pain, or disgrace,’”
Bucklew v. Precythe, 139 S. Ct. 1112, 1124 (2019) (quoting Baze v. Rees, 553 U.S. 35, 48
(2008)), but “[it] ‘does not demand the avoidance of all risk of pain in carrying out executions,’”
id. at 1125 (quoting Baze, 553 U.S. at 47). The Supreme Court requires inmates challenging a
method of execution to establish initially that the method “is ‘sure or very likely to cause serious
illness and needless suffering,’ and give[s] rise to ‘sufficiently imminent dangers.’” Glossip v.
Gross, 576 U.S. 863, 877 (2015) (quoting Baze, 553 U.S. at 50). “[T]here must be ‘a substantial
risk of serious harm,’ an ‘objectively intolerable risk of harm’ that prevents prison officials from
pleading that they were ‘subjectively blameless for purposes of the Eighth Amendment.’” Id.
(quoting Baze, 553 U.S. at 50); see also In re Fed. Bureau of Prisons’ Execution Protocol Cases,
980 F.3d 123, 133 (D.C. Cir. 2020) (finding that “[b]y pleading that the federal government’s
execution protocol involves a ‘virtual medical certainty’ of severe and torturous pain that is
unnecessary to the death process and could readily be avoided by administering a widely
2 available analgesic first, the Plaintiffs’ complaint properly and plausibly states an Eighth
Amendment claim”). 1
Taking the allegations in the Complaint as true, the court finds that Higgs has failed to
state a claim for relief. Higgs suffers from severe asthma, a condition for which he uses an
inhaler several times each day in order to breathe properly. (Higgs Compl. ¶ 99.) But he does
not claim that his asthma alone will increase the likelihood that he will suffer from flash
pulmonary edema. Rather, relying on the declaration of Dr. Joel Zivot, an associate professor at
the Emory University School of Medicine, he alleges that his “likely exposure to COVID-19
while in BOP custody increases the risk that he will have lung damage that augments the
sensations of drowning and suffocation caused by pentobarbital injection.” (Id. ¶ 102
(referencing Higgs Compl. Ex. C, Zivot Decl. at 5).) In fact, Higgs claims that, given his
underlying respiratory condition and his confinement in a facility with a growing COVID-19
outbreak, “executing him pursuant to the 2019 Protocol is ‘virtually certain to cause extreme
pain and suffering.’” (Id. ¶ 103 (quoting Zivot Decl. at 6.) He also presents evidence indicating
the prevalence of COVID-19 in correctional facilities, particularly USP Terre Haute. (See id.
¶¶ 94–95.)
Assuming all these statements are true, Higgs’ as-applied claim rests on two assumptions:
first, that he will contract COVID-19, and second, that if he contracts COVID-19, he is likely to
have lung damage that augments the sensations of drowning and suffocation caused by
pentobarbital injection. But these assumptions are insufficient to state a plausible, as-applied
1 Plaintiff must also “plead and prove a known and available alternative,” Glossip, 576 U.S. at 880, that is “‘feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain,’” id. at 877 (quoting Baze, 553 U.S. at 52). The court need not reach this issue given its finding that Higgs has failed to state a non-speculative claim for relief. 3 Eighth Amendment claim, let alone to meet the pleading standards of Fed. R. Civ. P. 8, which
require “a short and plain statement of the claim showing that the pleader is entitled to relief.”
See Twombly, 550 U.S. at 555 (quoting 5 C. Wright & A. Miller, Federal Practice and
Procedure § 1216 (3d. 2004)) (““[T]he pleading must contain something more . . . than . . . a
statement of facts that merely creates a suspicion [of] a legally cognizable right of action.”). It is
axiomatic that “[f]actual allegations must be enough to raise a right to relief above the
speculative level.” Id.
Higgs has not alleged facts establishing an injury—he has proffered only a hypothetical
injury. Indeed, if he does not contract COVID-19, his Count IV as-applied challenge fails. He
acknowledges that he has not tested positive for COVID-19, nor has he any reason to believe that
he contracted the virus aside from that fact that he is incarcerated. (See Higgs Compl. ¶ 102.)
Thus, given the speculative nature of the allegations in the Complaint, the court is unable to find
that Higgs has plausibly stated a claim that his execution “is ‘sure or very likely to cause serious
illness and needless suffering.’” Glossip, 576 U.S. at 877 (quoting Baze, 553 U.S. at 50).
Like the other plaintiffs in this case, Higgs has also alleged that the 2019 Protocol is
likely to cause flash pulmonary edema resulting in severe pain, a claim the D.C. Circuit has
found sufficient to survive a motion to dismiss. Execution Protocol Cases, 980 F.3d at 133
(finding that plaintiffs in this litigation have met the pleading standard for an Eighth Amendment
claim). Higgs still has the opportunity to seek relief on this claim before his execution—indeed,
he has already moved for a preliminary injunction.
The court does not mean to minimize the threat COVID-19 presents to inmates who are
confined in poorly ventilated facilities where social distancing is not possible, protective
equipment is scarce, and large-scale testing is often not available. However, a plaintiff cannot
4 state a plausible claim for relief on the theory that a COVID-19 infection will render his
execution cruel and unusual where he has not contracted COVID-19 in the first instance.
Accordingly, Defendants’ motion to dismiss Count IV of Higgs’ Complaint will be
GRANTED. The court will issue an order accordingly.
Date: December 9, 2020
Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge