Page:Russell Bucklew v. Anne L. Precythe, Director, Missouri Department of Corrections.pdf/40

2 the clear command of the Eighth Amendment.

I begin with a factual question: whether Bucklew has established that, because of his rare medical condition, the State’s current method of execution risks subjecting him to excessive suffering. See Glossip v. Gross, 576 U. S. ___, ___ (2015) (slip op., at 13) (requiring “a demonstrated risk of severe pain”); see also Baze v. Rees, 553 U. S. 35, 50 (2008) (plurality opinion) (requiring “a substantial risk of serious harm” (internal quotation marks omitted)).

There is no dispute as to the applicable summary judgment standard. Because the State moved for summary judgment, it can prevail if, but only if, it “shows that there is no genuine dispute as to any material fact.” Fed. Rule Civ. Proc. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 248 (1986). On review, we examine the record as a whole, which includes “depositions, documents, [and] affidavits or declarations.” Rule 56(c). And we must construe the evidence in the light most favorable to Bucklew and draw every justifiable inference in his favor. See Tolan v. Cotton, 572 U. S. 650, 651 (2014) (per curiam).

Bucklew has easily established a genuine issue of material fact regarding whether an execution by lethal injection would subject him to impermissible suffering.

The record indicates that Bucklew suffers from a congenital condition known as cavernous hemangioma that causes tumors filled with blood vessels to grow throughout his body, including in his head, face, neck, and oral cavity. The condition is rare. One study estimates that hemangiomas in the oral cavity occur in less than one percent of the population, and that hemangiomas like Bucklew’s have been identified in five cases. See Wang, Chen, Mojica, & Chen, Cavernous Hemangioma of the Uvula, 8 N.