Opinion
No. 15–1508.
2015-03-17
Cecil CLAYTON, Plaintiff–Appellant v. George LOMBARDI; David R. Dormire; Terry Russell; Richard Williams, Defendants–Appellees.
Appeal from United States District Court for the Western District of Missouri–Kansas City. Elizabeth Unger Carlyle, Susan M. Hunt, Kansas City, MO, for appellant. Stephen D. Hawke, Michael J. Spillane, Asst. Attys. Gen., Jefferson City, MO (Chris Koster, Atty. Gen., on the brief), for appellees.
Appeal from United States District Court for the Western District of Missouri–Kansas City.
Elizabeth Unger Carlyle, Susan M. Hunt, Kansas City, MO, for appellant. Stephen D. Hawke, Michael J. Spillane, Asst. Attys. Gen., Jefferson City, MO (Chris Koster, Atty. Gen., on the brief), for appellees.
Before LOKEN, BYE, and SMITH, Circuit Judges.
[Published]
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's 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.
The Honorable Nanette K. Laughrey, United States District Judge for the Western District of Missouri.
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 prejudice 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.
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.
Accordingly, we deny Clayton's motion for stay of execution pending appeal.