United States v. Bryan Boneshirt

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-1573
___________
Marcel Wayne Williams, *
*
Petitioner/Appellant, *
*
v. *
*
Ray Hobbs, Interim Director, *
Arkansas Department of Correction, *
in his official capacity, *
*
Respondent/Appellee. *
___________
Appeals from the United States
No. 10-2899 District Court for the
___________ Eastern District of Arkansas.
Jack Harold Jones, Jr., *
*
Plaintiff/Appellant, *
*
Don William Davis; Alvin Bernal *
Jackson; Stacey Eugene Johnson; *
Kenneth Dewayne Williams; Jason *
Farrell McGehee; Bruce Earl Ward, *
*
Intervenor Plaintiffs/Appellants, *
*
v. *
*
Ray Hobbs, in his official capacity *
as Acting Director of the Arkansas *

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1The Honorable J. Leon Holmes, United States District Judge for the Eastern
District of Arkansas.
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Department of Correction, *
*
Defendant/Appellee. *
___________
Submitted: September 20, 2011
Filed: October 7, 2011
___________
Before LOKEN, BEAM, and MURPHY, Circuit Judges.
___________
MURPHY, Circuit Judge.
Several Arkansas prisoners on death row challenged the state's Method of
Execution Act (the Act) under 42 U.S.C. § 1983 arguing that it violates the ex post
facto clause and their due process right to access the courts. The district court1
dismissed the prisoners' claims, finding that their arguments were merely speculative,
that they had access to Arkansas's current execution protocol, and that they could
submit a FOIA request to obtain information on future protocols. In this consolidated
appeal the prisoners argue that the district court erred in dismissing their ex post facto
clause and due process claims. Appellant Williams also appeals individually
contending that the district court erred in denying his habeas petition as second or
successive and by refusing to exercise supplemental jurisdiction over a state law
claim. Appellant Jones and the prisoners that intervened in his suit appeal the denial
of their motion to vacate the judgment. We affirm.
I.
Arkansas statutorily adopted lethal injection as its method of execution in 1983.
Ark. Code Ann. § 5-4-617. As originally drafted, the statute required an inmate to be

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anesthetized before the injection of lethal chemicals. Ark. Code. Ann. § 5-4-
617(a)(1). It also required the Director of the Arkansas Department of Correction
(Director) to “determine the substances to be uniformly administered and the
procedures to be used in any execution.” Ark. Code. Ann. § 5-4-617(a)(2).
Additionally, the lethal injection statute was interpreted as requiring "a minimum of
thirty-days notice prior to any execution of any changes in the protocol." Jones v.
Hobbs, 604 F.3d 580, 582 (8th Cir. 2010) (Melloy, J., dissenting); see Ark. Code Ann.
§ 25-15-204(a)(1).
In May 2008 the Director adopted a lethal injection protocol known as AD 08-
28, which immediately faced legal challenges. First, an Arkansas prisoner on death
row challenged the adoption of this protocol for failure to comply with the notice and
comment provisions of Arkansas's Administrative Procedures Act (APA). See Ark.
Dep't of Corr. v. Williams, 2009 Ark. 523, at 2, 2009 WL 4545103, at *2. Second,
several inmates challenged AD 08-28 in federal court arguing that it violated the
Eighth Amendment. Nooner v. Norris, 2008 WL 3211290 (E.D. Ark. Aug. 5, 2008).
As part of the federal suit, the government made the protocol available to the public
in a court filing. The federal district court found that it did not violate the Eighth
Amendment. Id. at * 15. We affirmed, holding that AD 08-28 was substantially
similar to other execution protocols that had been upheld by our circuit and the
Supreme Court. Nooner v. Norris, 594 F.3d 592, 608 (8th Cir. 2010).
While the challenges to AD 08-28 were moving through the state and federal
courts, the Director lobbied the Arkansas General Assembly to amend Ark. Code Ann.
§ 5-4-617 . In response, the Assembly passed the Act in April 2009 to "clarify" the
procedures for capital punishment by lethal injection. 2009 Ark. Acts 1296.
Attributes of the Act include:
(1) It gives the Director “discretion” to determine the kind and amount of chemicals
that will be used in an execution, including an ultra short acting barbiturate, a

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chemical paralytic agent, potassium chloride, or “[a]ny other chemical.” Ark. Code
Ann. § 5-4-617(a)(1)–(2).
(2) It no longer includes any statutory requirement that the Director use anesthesia
before giving the lethal cocktail to the prisoner.
(3) It gives the Director “discretion” to determine “any and all procedures and policies
to be applied in connection with carrying out the sentence of death” including
logistics, security, injection preparations, injection implementation, and arrangements
for disposing of the body. Ark. Code Ann. § 5-4-617(a)(4)(A)–(E).
(4) It does not designate a time by which the Director must determine the lethal
injection protocol.
(5) It specifically exempts the policies and procedures for carrying out the death
sentence from Arkansas’s APA. Ark. Code Ann. § 5-4-617(a)(5)(A). It also does not
subject the policies and procedures for carrying out the sentence of death to the FOIA,
“except for the choice of chemical or chemicals that may be injected, including the
quantity, method, and order of the administration of the chemical or chemicals.” Ark.
Code Ann. § 5-4-617(a)(5)(B).
The present appeal is a consolidation of two federal cases that Arkansas
prisoners (collectively prisoners) initiated to challenge the Act. Marcel Williams, an
Arkansas prisoner under a sentence of death, is the sole named plaintiff in one of the
cases. After Williams was convicted of capital murder and had exhausted his claims
on direct appeal, see Williams v. State, 991 S.W.2d 565 (Ark. 1999), he filed a
petition for writ of habeas corpus in the United States District Court for the Eastern
District of Arkansas, alleging, among other claims, ineffective assistance of counsel
during his death penalty phase. The district court granted his petition. Williams v.
Norris, 2007 WL 1100417 (E.D. Ark. Apr. 11, 2007). We reversed after finding that

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the evidence presented by Williams was insufficient for the writ. Williams v. Norris,
576 F.3d 850, 858-63 (8th Cir. 2009).
Williams then filed the present action seeking a writ of habeas corpus,
declaratory and injunctive relief under 42 U.S.C. § 1983, and asking the court to
exercise its supplemental jurisdiction to declare the Act unconstitutional under Article
IV of the Arkansas Constitution. The district court found that Williams had not
obtained proper authorization from the Eighth Circuit to file a second or successive
habeas petition. Williams v. Hobbs, 2010 WL 749563, at *1 (E.D. Ark. Mar. 2,
2010). The district court also dismissed Williams's § 1983 claim for failure to state
a claim upon which relief could be granted because he had access to Arkansas's
current lethal injection protocol, he could obtain any future lethal injection protocols
by making a FOIA request, and his assertion that the Director would unilaterally
change the protocol was speculative. Id. at *3-4. The district court then declined to
exercise supplemental jurisdiction over the remaining state law claims because it had
dismissed all of his federal claims. Id. at *4.
After Williams's case was dismissed, Jack Harold Jones, another prisoner
sentenced to death in Arkansas, challenged the Act on the same grounds that Williams
had. Several similarly situated prisoners intervened in Jones's suit. The district court
dismissed their case, basing its decision on the same grounds on which it had
dismissed Williams's suit. Jones v. Hobbs, 2010 WL 1417976, at *1 (E.D. Ark. Apr.
5, 2010). The district court granted a stay of execution to the two inmates who had
execution dates set so that they could appeal the ruling. Jones, 2010 WL 1417976, at
*4. We vacated the stays, holding that the two inmates had failed to demonstrate a
"significant possibility of success on the merits" because it was "purely speculative"
that Arkansas would adopt a different, unconstitutional protocol. Jones v. Hobbs, 604
F.3d 580, 581-82 (8th Cir. 2010) (per curiam).

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Jones and the prisoners who intervened in his suit then moved to vacate
pursuant to Federal Rule of Civil Procedure 59(e) on the ground that they had found
newly discovered evidence showing that the Director believed he had "flexibility"
under the Act and that there is a worldwide shortage of anesthesia. The district court
denied this motion. Jones v. Hobbs, 745 F. Supp. 2d 886, 894 (E.D. Ark. 2010).
The prisoners appeal the dismissal of their § 1983 claims for failure to state a
claim upon which relief can be granted. Williams individually appeals the denial of
his habeas petition and the district court's decision not to exercise supplemental
jurisdiction over his state law claims. Appellants in Jones's case appeal the denial of
their Rule 59(e) motion to vacate the judgment.
During the pendency of the federal litigation, the prisoners have continued to
challenge the Act in state court. A state circuit court recently granted partial relief to
the prisoners, ruling from the bench that the portion of the Act granting the Director
the ability to use "[a]ny other chemical or chemicals, including but not limited to" is
unconstitutional. Jones v. Hobbs, No. 2010-CV-1118 (Pulaski Cnty. Aug. 15, 2011).
The court struck this language, leaving the part of the Act governing choice of
chemicals as follows:
(a)(1) The sentence of death is to be carried out by intravenous lethal
injection of one (1) or more chemicals, as determined in kind and
amount in the discretion of the Director of the Department of Correction.
(2) The chemical or chemicals injected may include one (1) or more of
the following substances:
(A) One (1) or more ultra-short-acting barbiturates;
(B) One (1) or more chemical paralytic agents;

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2Prior to the state court's modification the word saline was preceded by the
following language: "Any other chemical or chemicals, including but not limited to
. . . ."
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(C) Potassium chloride; or
(D) Saline solution.2
Ark. Code Ann. § 5-4-617(a). Both parties have indicated their intention to appeal
portions of the state court's decision in that case. Due to the ongoing state
proceedings, the Arkansas Supreme Court has granted six stays of execution to
prisoners in this case. See, e.g., Davis v. Hobbs, 2010 Ark. 168. The prisoners moved
this court to hold the present appeal in abeyance due to the state court proceedings.
We declined to do so because the issues remain ripe for appeal in spite of the
modifications made to the statute by the Arkansas circuit court.
II.
The prisoners first argue that the district court erred in dismissing their § 1983
claim because the Act violates the ex post facto clause of the United States
Constitution. U.S. Const. art. I, § 10, cl. 1. We review de novo a district court's
dismissal pursuant to rule 12(b)(6), accepting as true the plaintiff's well pleaded
allegations. Parkhurst v. Tabor, 569 F.3d 861, 865 (8th Cir. 2009). Surviving a
motion to dismiss requires that the complaint contain factual allegations sufficient "to
raise a right to relief above the speculative level." Id. (quoting Bell Atlantic v.
Twombly, 550 U.S. 544, 555 (2007)).
The ex post facto clause prohibits states from "retroactively alter[ing] the
definition of crimes or increas[ing] the punishment for criminal acts." Collins v.
Yongblood, 497 U.S. 37, 43 (1990). To sustain a claim under the ex post facto clause,

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3While an Arkansas circuit court has stricken the portion of the Act affording
the Director discretion to use "any other chemical or chemicals" in the execution
protocol, the Director retains the discretion to omit anesthesia from the protocol
because the statute still provides that he "may" use "ultra-short-acting barbiturates"
(anesthesia), but does not require him to do so.
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the prisoners must allege that a law creates "a significant risk" of increased
punishment. Garner v. Jones, 529 U.S. 244, 255 (2000). Such a showing must be
more than a "speculative and attenuated risk of increasing the measure of punishment
attached to the covered crimes," Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 514
(1995), and the ex post facto clause does not "forbid[] any legislative change that has
any conceivable risk of affecting a prisoner's punishment." Id. at 508.
The prisoners advance three theories as to how the Act violates the ex post facto
clause. First, it creates the risk of a more painful execution by eliminating the
requirement that the Director use anesthesia during an execution; second, it increases
the prisoners' mental anxiety in the time leading up to the execution; and third, it
makes execution protocols less humane by exempting them from the notice and
comment requirements of the Arkansas APA. We address each of these theories in
turn.
The prisoners first argue that the Act creates a significant risk of more painful
execution because it grants the Director the ability to omit anesthesia from the
protocol. They allege that the Director will likely omit anesthesia because he lobbied
the legislature to make the changes embodied in the current Act, doing so would save
money, and it would decrease the record keeping burden on the Director because he
would no longer have to document the use of anesthesia.3 The prisoners cite evidence
to support that a person being executed without anesthesia would feel as though he
was "being buried alive in a chemical tomb."

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The state responds that the prisoners cannot state a claim for a violation of the
ex post facto clause because they only speculate that the Director will someday choose
not to use anesthesia. See Twombly, 550 U.S. at 555. The state further contends that
the Director could not eliminate anesthesia because doing so would run afoul of the
Eighth Amendment and the Arkansas Constitution. The Director should be assumed
to act in accordance with the constitution because of the presumption that "public
officers act rightly." Pendleton Cnty. v. Amy, 80 U.S. 297, 305 (1871). Moreover,
the state urges that because the Director has previously amended the lethal injection
protocol to "reduce" the possibility that "a condemned inmate would experience
unnecessary pain during an execution," Nooner, 2008 WL 3211290, at *3, any future
elimination of anesthesia is highly unlikely.
We agree with the state that the prisoners can do no more than speculate on this
point. They cannot concretely show that the Director is likely to eliminate anesthesia
at the time of execution. Rather, they only show that the Act makes it "conceivable"
that he will do so. Morales, 514 U.S. at 508. This is not the "significant risk" of
increased punishment needed for a violation of the ex post facto clause. Garner, 529
U.S. at 255. The speculative nature of the prisoners' theory is compounded by the fact
that the Arkansas legislature passed the Act over two years ago and the Director has
yet to eliminate the use of anesthesia.
The prisoners next contend that they have demonstrated a facially plausible
claim that the Act violates the ex post facto clause because it increases mental anxiety
before execution since the prisoners cannot know the manner in which they will be
executed. They ground this argument in nineteenth century case law indicating that
mental anxiety is a cognizable claim under the ex post facto clause. See In re Medley,
134 U.S. 160 (1890). Medley was a habeas case involving a statute enacted after the
prisoner committed his offense. That statute prohibited the warden from
communicating to the prisoner the date and time of execution, and the Supreme Court
held that it violated the ex post facto clause because it created "an immense mental
anxiety amounting to a great increase of the offender's punishment." Id. at 172.

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The state counters that this argument is speculative and that anxiety is the
inevitable result of incarceration on death row. Moreover, the prisoners will not suffer
increased anxiety because they already have access to the current execution protocol
through previous litigation and they can access any necessary information by a FOIA
request.
The prisoners also argue that the Act's FOIA provision is insufficient to calm
their anxiety because while allowing for disclosure of the chemical or chemicals that
may be injected, it does not allow for the disclosure of "the quantity, method, and
order of the administration" of those chemicals. They further contend that the FOIA
clause does not allow them to obtain access to key information, such as whether the
Director will determine that a prisoner is unconscious before the execution proceeds
and whether a person with medical training will give the injection. Additionally, they
urge that the FOIA provision is illusory because the Act neither requires a written
protocol nor that any protocol be finalized a certain number of days prior to the
execution. The Director could thus change the protocol shortly before the execution
so that a prisoner would lack time to obtain the information through a FOIA request.
Or he could merely provide a list of all chemicals that "may" be used at the execution
without specifying which chemical will in fact be used.
Because the arguments surrounding mental anxiety focus on the FOIA
provision of the Act, we analyze that provision in more detail. It provides:
The policies and procedures for carrying out the sentence of death and
any and all matters related to the policies and procedures for the sentence
of death are not subject to [FOIA], except for the choice of chemical or
chemicals that may be injected, including the quantity, method, and order
of the administration of the chemical or chemicals.
Ark. Code Ann. § 5-4-617(a)(5)(B) (emphasis added). The district court found and
the state contends that this section of the Act specifically allows the prisoners to

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obtain information about the Director's choice of chemicals, quantity of chemicals,
method of injection, and order of the administration of chemicals.
The plain language of the statute defeats the prisoners' argument that the FOIA
provision prohibits disclosure of "the quantity, method, and order of administration"
of the chemicals because it expressly indicates that such information will be available
through a FOIA request. See Jones, 604 F.3d at 583 (Melloy, J., dissenting). The
argument that the Director might provide a list of all possible drugs rather than the
specific drugs that will actually be used is speculative.
The prisoners' contention that a FOIA request will be ineffective because the
Director may change the protocol too close to the date of execution to allow them time
to make such a request is more troublesome. One can imagine a situation occurring
where the prisoners must submit a FOIA request every day in order to be sure that the
protocol has not changed prior to the execution date. The state's counsel stated at oral
argument that he could not imagine a situation in which he would not be able to call
the prisoners' counsel personally to inform them of a change in the protocol. This at
least provides the prisoners with some assurance that they will receive a timely
response to their request for information regarding a new protocol.
While presenting a closer case than their argument regarding omission of
anesthesia, the prisoners do not present a plausible ex post facto claim based on
increased anxiety. Medley is distinguishable from the present case because the court
there was concerned about the secrecy surrounding the date of execution. 134 U.S.
at 172. That secrecy was a concrete harm because the prisoners had no way of
discovering when the execution would take place. Here, the prisoners' execution will
take place on a date certain. What troubles them is not being sure they will have
advance notice about the details surrounding the execution. Another circuit has
recently rejected the argument that Medley provides prisoners a broad right to know
the details of their execution to "avoid uncertainty that unnecessarily creates anxiety."
Powell v. Thomas, 641 F.3d 1255, 1258 (11th Cir. 2011) (per curiam).

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The prisoners in this case have access to the current protocol, the ability to
make a FOIA request, and assurances by the state's counsel that he will provide them
with any new execution protocol upon request. Thus the information the prisoners
require to ease their anxiety is discoverable, unlike the date of execution in Medley.
The prisoners therefore have not pled facts showing the "significant risk" of increased
punishment necessary to make out an ex post facto violation. Garner, 529 U.S. at 255.
The prisoners finally argue that the Act violates the ex post facto clause because
it removed the protections of Arkansas's APA. Before the Act was passed, an
Arkansas circuit court determined that AD 08-28 was invalid because the Director had
failed to follow the APA. See Ark. Dep't of Corr. v. Williams, 2009 Ark. 523, at 3,
2009 WL 4545103, at *3. The passage of the Act while the appeal in that case was
pending rendered moot the issue of APA compliance. Id. at 6-7. According to the
prisoners, a more humane protocol would have been established had the Director been
forced to comply with the rigorous notice and comment requirements of the APA.
The state counters that because the Arkansas Supreme Court never reached the issue
it is unclear whether the APA applied to execution protocols prior to the Act. The
district court concluded that the prisoners merely speculate that their punishment
would be more humane had AD 08-28 been subject to the APA.
The prisoners' argument based on the removal of APA protections was properly
rejected by the district court. Even if the APA did apply to execution protocols before
the Act, the prisoners produced no evidence that public opinion in Arkansas would
have been against AD 08-28 or that people would have spoken out against the
protocol. Rather, the prisoners merely cite general language from cases suggesting
that the notice and comment process provides the public an "opportunity to
participate" and allows an agency to be "educated about the impact of a proposed
rule." See, e.g., Wagnon v. Arkansas Health Svcs. Agency, 40 S.W.3d 849, 852 (Ark.
App. 2001) (quoting 2 Am. Jur. 2d Administrative Law § 166 (1994)). They thus
again fail to plead facts showing the "significant risk" of increased punishment
needed to make out an ex post facto violation. Garner, 529 U.S. at 255.

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Under all three theories the prisoners fail "to raise a right to relief above the
speculative level." Twombly, 550 U.S. at 555. We conclude that the district court
properly dismissed the § 1983 claim based on violation of the ex post facto clause.
III.
The prisoners next contend that the district court erred in dismissing their §
1983 claim because they provided facts sufficient to show that the Act denies them
their due process right to access the courts. Because this is a challenge to the district
court's dismissal of their claim, our review is again de novo. Parkhurst, 569 F.3d at
865.
Those in prison "have a constitutional right of access to the courts." Bounds v.
Smith, 430 U.S. 817, 821 (1977). We have held that to state this claim, "a prisoner
must establish the state has not provided an opportunity to litigate a claim challenging
the prisoner's sentence or conditions of confinement in a court of law, which resulted
in actual injury, that is, the hindrance of a nonfrivolous and arguably meritorious
underlying legal claim." Hartsfield v. Nichols, 511 F.3d 826, 831 (8th Cir. 2008).
Access to the courts claims typically result from deficiencies in a prison's law library
or legal assistance program that hinder an inmate's ability to bring a claim. See Lewis
v. Casey, 518 U.S. 343, 351 (1996). By contrast, the due process clause is not meant
to "enable the prisoner to discover grievances, and to litigate effectively once in
court." Id. at 354 (emphasis in original). The Fourth Circuit has ruled that a prisoner
cannot sustain a due process access to the courts claim where the prison system has
refused to give him access to its medical protocol. Giarratano v. Johnson, 521 F.3d
298, 305–06 (4th Cir. 2008). The court there determined that the refusal to provide
that information did not make it impossible for the prisoner to challenge the medical
protocol, it just made it more difficult for him to discover legal claims. Id.

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The prisoners argue that the Act violates the due process clause because the
secrecy encompassed in it denies them "an opportunity to litigate" their nonfrivolous
claim that the execution protocol violates the Eighth Amendment. Hartsfield, 511
F.3d at 831. Because the Director can deviate from the established protocol at any
moment, they contend that they will be unable to challenge the protocol in court.
Similar to their ex post facto arguments, the prisoners assert that the FOIA clause in
the Act is insufficient to protect their rights.
These arguments fail to state a plausible due process access to the courts claim.
First, the prisoners argument is grounded in an inability to discover potential claims,
which courts have held does not constitute a due process violation. Lewis, 518 U.S.
at 354; Giarratano, 521 F.3d at 305–06. The prisoners do not assert that they are
physically unable to file an Eighth Amendment claim, only that they are unable to
obtain the information needed to discover a potential Eighth Amendment violation.
Secondly, the prisoners do not demonstrate "actual injury" because they cannot show
that litigating an execution protocol first requires access to the protocol. Indeed, the
prisoners argument is belied by the fact that they brought an Eighth Amendment
challenge to the then unknown AD 08-28 while asserting in their court filings that the
lethal injection proceedings are "top secret." Nooner, 2008 WL 3211290.
Furthermore, we have held that AD 08-28 satisfies the Eighth Amendment
requirements, Nooner, 594 F.3d at 608, and the prisoners have not demonstrated that
the Director has departed from this protocol. Rather they speculate the he might
depart from it in the future. Until the prisoners can put forth evidence that the
Director has deviated from the approved protocol, they have no "nonfrivolous" Eighth
Amendment claim to bring and thus suffer no "actual injury" by being unable to bring
such a claim. Hartsfield, 511 F.3d at 831. The district court was thus correct to
dismiss the prisoners' § 1983 claim based on lack of access to the courts.

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IV.
Appellant Williams argues in his individual appeal that the district court erred
in declining to exercise supplemental jurisdiction over his state law claim that the Act
violates Article IV of the Arkansas Constitution. He contends that because the state
never objected to the supplemental jurisdiction, it waived any objection to such
jurisdiction. We review a district court's decision not to exercise supplemental
jurisdiction for an abuse of discretion. Johnson v. City of Shorewood, 360 F.3d 810,
819 (8th Cir. 2004).
A federal district court has discretionary power to decline jurisdiction where it
has "dismissed all claims over which it has original jurisdiction." 28 U.S.C. §
1367(c)(3). "[I]n the usual case in which all federal-law claims are eliminated before
trial, the balance of factors to be considered under the pendent jurisdiction doctrine
. . . will point toward declining to exercise jurisdiction over the remaining state-law
claims." Johnson, 360 F.3d at 819 (quoting Carnegie-Mellon Univ. v. Cohill, 484
U.S. 343, 350 n.7 (1988)). The district court here did not abuse its discretion when
it dismissed Williams's state law claim after it had dismissed all of his federal claims.
Williams also argues in his individual appeal that the district court erred in
denying his habeas petition as a second or successive petition. We review de novo
a district court's dismissal of a habeas petition as second or successive. Williams v.
Norris, 461 F.3d 999, 1001 (8th Cir. 2006).
A "second or successive" habeas petition requires authorization from a federal
court of appeals prior to filing. 28 U.S.C. § 2244(b)(3)(A). "Second or successive"
is a term of art and not every habeas petition that is second in time requires
preauthorization. Crouch v. Norris, 251 F.3d 720, 723–25 (8th Cir. 2001). Where a
claimant could not have raised a claim in his first habeas petition because it had not
yet arisen, he will be allowed to seek a second habeas petition without first obtaining
our authorization. Singleton v. Norris, 319 F.3d 1018, 1023 (8th Cir. 2003). Williams

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contends that because his first petition was fully adjudicated by the district court in
2007 and the Act was not passed until 2009, it would have been impossible for him
to raise the claims regarding the Act in his first petition. He claims that our
authorization was therefore not needed prior to filing.
While we agree that the district court erred in classifying Williams's habeas
petition as "second or successive" because he could not have raised his current claims
at the time of his first petition, the dismissal of the petition was harmless error. To be
reversible, an error "must affect a substantial right of the objecting party, and the
burden of showing prejudice rests on that party." Crane v. Crest Tankers, 47 F.3d
292, 296 (8th Cir. 1995). Here, Williams can show no prejudice through dismissal of
his habeas petition because he sought identical relief in his habeas petition and his §
1983 claims. The district court properly analyzed his claims under § 1983, as we have
done in other instances. See, e.g., Clemons v. Crawford, 585 F.3d 1119, 1122 (8th
Cir. 2009). We conclude that the district court's error is harmless.
V.
Following the dismissal of their claims, appellant Jones and the prisoners who
intervened in his case moved to vacate the judgment under Federal Rule of Civil
Procedure 59(e) because they had discovered new evidence to support their § 1983
claims. The district court denied this motion determining that even if the complaints
were amended to include the new evidence, they would "still fail to raise the right to
relief above a speculative level." Jones, 745 F. Supp. 2d at 889. We review the denial
of a Rule 59(e) motion for an abuse of discretion. Anderson v. Family Dollar Stores
of Ark., 579 F.3d 858, 861 (8th Cir. 2009).
Rule 59(e) motions based on new evidence are analyzed in the same manner as
Rule 60(b)(2) motions. United States v. Metro. St. Louis Sewer Dist., 440 F.3d 930,
933 n.3 (8th Cir. 2006). To prevail on such a motion the movant must show "(1) that
the evidence was discovered after the court's order, (2) that the movant exercised

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diligence to obtain the evidence before entry of the order, (3) that the evidence is not
merely cumulative or impeaching, (4) that the evidence is material, and (5) that the
evidence would probably have produced a different result." Miller v. Baker
Implement Co., 439 F.3d 407, 414 (8th Cir. 2006) (emphasis added). In support of
the Rule 59(e) motion, the prisoners offered a news article stating that a public
information officer believed the Act gave the Arkansas Department of Correction
"flexibility in case one of the chemicals used in lethal injections became unavailable,
was improved or a more effective substitute emerged." Hobbs, 745 F. Supp. 2d at
888. The prisoners also offered an article from an Ohio newspaper discussing a
worldwide shortage of the anesthetic used in lethal injections. Id.
The prisoners are unable to meet the requirements for a Rule 59(e) motion
because the new evidence they offered does not add anything concrete to the evidence
provided in their complaint. The public information officer's statement regarding the
flexibility afforded by the Act is merely speculation that the Director might one day
change the chemicals used in the protocol. This is no different than what the prisoners
were able to show prior to discovering the new evidence. Similarly, the fact that
anesthesia is in short supply worldwide does not indicate that the Arkansas
Department of Correction is in short supply of the drug. This evidence only indicates
that a future shortage of anesthesia might cause the Director to exclude it from the
protocol. The prisoners thus cannot meet the required showing that this evidence
would have produced a different result. Miller, 439 F.3d at 414. The district court did
not abuse its discretion in denying the Rule 59(e) motion.
VII.
We affirm the judgment of the district court and its order denying the motion
to vacate the judgment.
______________________________

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