More post-Baze cleanup work from the Eighth Circuit today in Middleton v. Crawford, No. 08-2807:
Missouri's new protocol specifically requires a physician, nurse, or pharmacist to prepare the chemicals used at the execution, and requires a physician, nurse, or EMT to carry out the remaining medical aspects of the execution and supervise the non-medical members of the execution team. In Taylor, we emphasized "it is imperative for the State to employ personnel who are properly trained to competently carry out each medical step of the procedure." Taylor, 487 F.3d at 1084. In the absence of contrary supporting factual allegations, we will not assume or infer Missouri intends to disregard its own protocol, and this court's instructions, by employing medical personnel who are "incompetent" or "unqualified" to perform their assigned duties. The prisoners have not alleged a sufficiently substantial risk of serious harm or a sufficiently imminent danger to support an Eighth Amendment claim. We therefore conclude the district court did not err by determining, as a matter of law, the prisoners failed to state a claim for violation of the Eighth Amendment.