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West v. Parker

United States District Court, M.D. Tennessee, Nashville Division

June 3, 2019

STEPHEN MICHAEL WEST, Plaintiff,
v.
TONY PARKER, et al., Defendants

          MEMORANDUM OPINION

          WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE.

         Stephen Michael West, an inmate on death row in Riverbend Maximum Security Institution, brings this action for injunctive relief challenging his upcoming execution pursuant to 42 U.S.C. § 1983. Defendants Tony Parker, the Commissioner of the Tennessee Department of Correction (TDOC), and Tony Mays, Warden of Riverbend, move under Rule 12 of the Federal Rules of Civil Procedure to dismiss the amended complaint for lack of jurisdiction and failure to state a claim for which relief can be granted. (Doc. No. 12.) For the following reasons, Defendants' motion will be granted, and this action will be dismissed in its entirety.

         I. Legal Standards

         Rule 12(b)(1) governs dismissal for lack of subject matter jurisdiction. “Rule 12(b)(1) motions to dismiss...generally come in two varieties: a facial attack or a factual attack.” Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007). “When reviewing a facial attack, a district court takes the allegations in the complaint as true, which is a similar safeguard employed under 12(b)(6) motions to dismiss.” Id. “When considering a factual attack upon the court's jurisdiction, the court may weigh the evidence, and no presumption of truth applies to the plaintiff's factual allegations.” Hickam v. Segars, 905 F.Supp.2d 835, 838 (M.D. Tenn. 2012) (citing Gentek, 491 F.3d at 330). “In its review, the district court has wide discretion to allow affidavits, documents, and even a limited evidentiary hearing to resolve jurisdictional facts.” Gentek, 491 F.3d at 330.

         To survive a Rule 12(b)(6) motion, “‘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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 557). “If the plaintiffs do not nudge their claims across the line from conceivable to plausible, their complaint must be dismissed.” Lutz v. Chesapeake Appalachia, L.L.C., 717 F.3d 459, 464 (6th Cir. 2013) (citation and brackets omitted). Dismissal is likewise appropriate where the complaint, however factually detailed, fails to state a claim as a matter of law. Mitchell v. McNeil, 487 F.3d 374, 379 (6th Cir. 2007). In deciding a motion to dismiss, the Court is not required to accept summary allegations, legal conclusions, or unwarranted factual inferences. Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir. 1999); Lillard v. Shelby Cty. Bd. of Educ., 76 F.3d 716, 726 (6th Cir. 1996).

         As a general rule, “matters outside the pleadings may not be considered in ruling on a 12(b)(6) motion to dismiss unless the motion is converted to one for summary judgment under [Federal Rule of Civil Procedure] 56.” Weiner v. Klais & Co., 108 F.3d 86, 88 (6th Cir. 1997). The term “pleadings” encompasses both the complaint and the answer, Fed.R.Civ.P. 7(a), and any exhibit thereto. Fed.R.Civ.P. 10(c). However, the Court of Appeals has held that “[d]ocuments attached to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to the plaintiff's claim.” Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999), abrogated on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002); see also Commercial Money Ctr., Inc. v. Ill. Union Ins. Co., 508 F.3d 327, 335 (6th Cir. 2007) (holding that a district court may consider documents referenced in the pleadings that are “integral to the claims” in deciding motion to dismiss); Wyser-Pratte Mgmt. Co., Inc. v. Telxon Corp., 413 F.3d 553, 560 (6th Cir. 2005) (noting that in deciding a motion to dismiss “the court may also consider other materials that are integral to the complaint, are public records, or are otherwise appropriate for the taking of judicial notice”).

         Plaintiff sues under 42 U.S.C. § 1983 to vindicate alleged violations of his federal constitutional rights. Section 1983 confers a private federal right of action against any person who, acting under color of state law, deprives an individual of any right, privilege or immunity secured by the Constitution or federal laws. Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 583 (6th Cir. 2012). Thus, to state a § 1983 claim, a plaintiff must allege two elements: (1) a deprivation of rights secured by the Constitution and laws of the United States, and (2) that “the deprivation was caused by a person acting under color of state law.” Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir. 2003) (citations omitted); 42 U.S.C. § 1983.

         II. Facts and Procedural Background

         In 1986, when Plaintiff committed the crimes for which he was convicted and sentenced to death, see State v. West, 767 S.W.2d 387, 389 (Tenn. 1989), Tennessee law provided, as it had since at least 1932, that inmates sentenced to death would be executed by means of electrocution:

Whenever any person is sentenced to the punishment of death, the court shall direct that the person be put to death by electrocution, and that the body be subjected to shock by a sufficient current of electricity until dead.

Tenn. Code Ann. § 40-23-114 (1982). In keeping with this law, at the conclusion of Plaintiff's sentencing hearing, the trial judge announced that “[i]n accordance with the verdict of the jury, it is the judgment of the Court that the defendant be sentenced to death by electrocution at a time to be fixed by the Supreme Court of this State.” (Doc. No. 11-46 at 2.)

         In 1998, the Tennessee legislature revised the relevant statute to provide that the method of execution for anyone who was sentenced to death for an offense committed on or after January 1, 1999, would be lethal injection, and that inmates sentenced to death for offenses committed before that date could elect to be executed by lethal injection by signing a written waiver of the right to be executed by electrocution:

(a) For any person who commits an offense prior to January 1, 1999, for which such person is sentenced to the punishment of death, the court shall direct that the person be put to death by electrocution, and that the body be subjected to shock by a sufficient current of electricity until dead.
(b) For any person who commits an offense on or after January 1, 1999, for which such person is sentenced to the punishment of death, the court shall direct that the person be put to death by lethal injection.
(c) Any person who commits an offense prior to January 1, 1999, for which such person is sentenced to the punishment of death may elect to be executed by lethal injection by signing a written waiver waiving the right to be executed by the method of execution in effect at the time the offense was committed.
(d) The department of correction is authorized to promulgate necessary rules and regulations to facilitate the implementation of subsections (b) and (c).
(e) If the method of execution established by subsections (b) and (c) is for any reason determined by a court of competent jurisdiction to be unconstitutional, the law establishing the method of execution as death by electrocution is revived and electrocution shall be the method of execution in this state. All statutory procedures, rules and departmental policy enacted or promulgated to effectuate a sentence of death by electrocution shall also be revived and shall be in full force and effect.

Tenn. Code Ann. § 40-23-114 (1998); 1998 Tennessee Laws Pub. Ch. 982 (H.B. 2085).

         The legislature amended the statute again in 2000 to reverse the presumptive method of execution for older convictions, providing that the default method of execution for all inmates sentenced to death is lethal injection, but that inmates whose offenses predate January 1, 1999, may elect to be executed by electrocution by signing a written waiver of the right to lethal injection:

(a) For any person who commits an offense prior to January 1, 1999, for which such person is sentenced to the punishment of death, the method for carrying out this sentence shall be by lethal injection.
(b) For any person who commits an offense on or after January 1, 1999, for which such person is sentenced to the punishment of death, the method for carrying out this sentence shall be by lethal injection.
(c) Any person who commits an offense prior to January 1, 1999, for which such person is sentenced to the punishment of death may elect to be executed by electrocution by signing a written waiver waiving the right to be executed by lethal injection.
(d) The department of correction is authorized to promulgate necessary rules and regulations to facilitate the implementation of this section.
(e) If lethal injection or electrocution is held to be unconstitutional by the Tennessee supreme court under the Constitution of Tennessee, or held to be unconstitutional by the United States supreme court under the United States Constitution, or if the United States supreme court declines to review any judgment holding lethal injection or electrocution to be unconstitutional under the United States Constitution made by the Tennessee supreme court or the United States court of appeals that has jurisdiction over Tennessee, or if the Tennessee supreme court declines to review any judgment by the Tennessee court of criminal appeals holding lethal injection or electrocution to be unconstitutional under the United States or Tennessee Constitution, all persons sentenced to death for a capital crime shall be executed by any constitutional method of execution. No. sentence of death shall be reduced as a result of a determination that a method of execution is declared unconstitutional under the Constitution of Tennessee or the Constitution of the United States. In any case in which an execution method is declared unconstitutional, the death sentence shall remain in force until the sentence can be lawfully executed by any valid method of execution.

Tenn. Code Ann. § 40-23-114 (2000); 2000 Tennessee Laws Pub. Ch. 614 (H.B. 2978).

         And finally, in 2014, the legislature added a provision to the statute about defaulting to electrocution if the ingredients to carry out a lethal injection are unavailable:

(a) For any person who commits an offense for which the person is sentenced to the punishment of death, the method for carrying out this sentence shall be by lethal injection.
(b) Any person who commits an offense prior to January 1, 1999, for which the person is sentenced to the punishment of death may elect to be executed by electrocution by signing a written waiver waiving the right to be executed by lethal injection.
(c) The department of correction is authorized to promulgate necessary rules and regulations to facilitate the implementation of this section.
(d) If lethal injection or electrocution is held to be unconstitutional by the Tennessee supreme court under the Constitution of Tennessee, or held to be unconstitutional by the United States supreme court under the United States Constitution, or if the United States supreme court declines to review any judgment holding lethal injection or electrocution to be unconstitutional under the United States Constitution made by the Tennessee supreme court or the United States court of appeals that has jurisdiction over Tennessee, or if the Tennessee supreme court declines to review any judgment by the Tennessee court of criminal appeals holding lethal injection or electrocution to be unconstitutional under the United States or Tennessee constitutions, all persons sentenced to death for a capital crime shall be executed by any constitutional method of execution. No. sentence of death shall be reduced as a result of a determination that a method of execution is declared unconstitutional under the Constitution of Tennessee or the Constitution of the United States. In any case in which an execution method is declared unconstitutional, the death sentence shall remain in force until the sentence can be lawfully executed by any valid method of execution.
(e) For any person who commits an offense or has committed an offense for which the person is sentenced to the punishment of death, the method of carrying out the sentence shall be by lethal injection unless subdivision (e)(1) or (e)(2) is applicable. If subdivision (e)(1) or (e)(2) is applicable, the method of carrying out the sentence shall be by electrocution. The alternative method of execution shall be used if:
(1) Lethal injection is held to be unconstitutional by a court of competent jurisdiction in the manner described in subsection (d); or
(2) The commissioner of correction certifies to the governor that one (1) or more of the ingredients essential to carrying out a sentence of death by lethal injection is unavailable through no fault of the department.

Tenn. Code Ann. § 40-23-114 (2014); 2014 Tennessee Laws Pub. Ch. 1014 (S.B. 2580). This version of the statute remains in effect today.

         Pursuant to every version of the statute in effect since 1998, the TDOC devised a series of protocols to carry out executions in Tennessee. As relevant to this case, the lethal injection protocols adopted in 2013, 2014, and 2015 all called for execution by a lethal dose of the barbiturate pentobarbital. West v. Schofield, 519 S.W.3d 550, 552 (Tenn. 2017), cert. denied sub nom. West v. Parker, 138 S.Ct. 476 (2017), and cert. denied sub nom. Abdur'Rahman v. Parker, 138 S.Ct. 647 (2018), reh'g denied, 138 S.Ct. 1183 (2018). A group of death row inmates including Plaintiff filed suit in state court alleging, among other things, that the pentobarbital protocol constituted cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution by exposing them to a substantial risk of serious harm or lingering death. Id., 519 S.W.3d at 563. The state courts concluded after trial that the inmates' Eighth Amendment claims failed on their merits, id., and the United States Supreme Court denied certiorari on January 8, 2018. Abdur'Rahman, 138 S.Ct. 647.

         On the same day that the Supreme Court denied certiorari in the challenge to pentobarbital, TDOC revised its lethal injection protocol to provide for two alternative methods of execution: Protocol A, comprised of a lethal dose of pentobarbital; and Protocol B, comprised of a dose of midazolam, followed by vecuronium bromide, and then potassium chloride, in that order. (Doc. No. 11-3 at 34.) Plaintiff and dozens of his fellow death row inmates again filed suit in state court “seeking a declaration that the new, January 8, 2018 Lethal Injection Protocol, Protocol B, violates their constitutional and statutory rights.” (Doc. No. 13-1 at 7.) They alleged, among other things, that the three-drug execution method constituted cruel and unusual punishment in violation of the Eighth Amendment. Abdur'Rahman v. Parker, 558 S.W.3d 606, 610 (Tenn. 2018), cert. denied sub nom. Zagorski v. Parker, 139 S.Ct. 11 (2018), and cert. denied sub nom. Miller v. Parker, 139 S.Ct. 626 (2018), petition for cert. filed, (U.S. March 7, 2019) (No. 18-8332). On July 5, 2018, while that lawsuit was still pending in the trial court and two days after the plaintiffs filed their second and final amended complaint, TDOC revised its lethal injection protocol to eliminate the pentobarbital option and leave the three-drug protocol as the sole method of lethal injection. (Doc. No. 11-4 at 34.)

         Trial started on the inmates' claims on July 9, 2018. Abdur'Rahman, 558 S.W.3d at 612. During his opening statement, counsel for Plaintiff and several other inmates in the state case asserted that the issue before the court was still the January protocol and that he “intend[ed] to go forward with claims against their new protocol, the newly ripe claims” through “either an amended pleading or a new pleading.” Response-Attachment A at 3-9, Miller v. Parker, No. 3:18-781 (M.D. Tenn. filed Oct. 4, 2018) (Miller Doc. No. 18-1 at 3-9). He acknowledged, however, that relevant provisions of the protocols were the same and that the pending causes of action “address[ed] the same issues, but not the same protocol.” Id. at 4. He asserted that the pending claims were not moot and that “we can't completely start over.” Id. The trial proceeded and lasted ten days. Abdur'Rahman, 558 S.W.3d at 612.

         At the conclusion of the trial, the state court denied the plaintiffs' motion to amend their complaint to conform to the proof with regard to an alternative lethal injection method that was not alleged in the complaint but about which witnesses had testified.[1] Order Applying Tennessee Civil Procedure Rule 15.02, Abdur'Rahman, et al. v. Parker, No. 18-183-II(III) (Davidson Chancery Jul. 19, 2018).[2] In a written order, the state court explained that:

Denial of the Plaintiffs' Rule 15.02 motion to amend on the Glossip alternative, however, is separate from and does not affect that by express consent of the parties . . . the pleadings have been amended to conform to the filing on July 5, 2018 and the proof at trial that the protocol in issue and on which declaratory judgment is sought is the Lethal Injection Execution Manual, Execution Procedures For Lethal Injection, Revised July 5, 2018.

Id. at 2-3. Plaintiff and three others filed a motion seeking “reconsideration of that portion of the Court's order which adds consideration of Defendant's July 5, 2018 [protocol] to those matters presently pending before the court.” Motion of Plaintiffs, Abdur'Rahman, et al. v. Parker, No. 18-183-II(III) (Davidson Chancery filed Jul. 20, 2018).[3] In their memorandum in support of the motion, the inmates argued that allowing them to bring separate claims against the July protocol would not mean the recently concluded trial was “for naught, ” because “under principles of res judicata and collateral estoppel/issue preclusion, the results of this Court's judgment as to each issue relevant to its determination of the constitutionality of the January 8th Protocol will bind the parties in a subsequent litigation.” Memorandum in Support at 10, Abdur'Rahman, et al. v. Parker, No. 18-183-II(III) (Davidson Chancery Jul. 20, 2018). Specifically, they asserted that:

the following disputed factual issues and/or mixed questions of law and fact will be resolved by this Court's resolution of Plaintiffs' pending challenge of the January 8th Protocol and will become binding on the parties:
(1) Does Tennessee's midazolam, vecuronium bromide, and potassium chloride lethal injection protocol create an intolerable risk of unnecessary pain and suffering on its face and without considering their individual characteristics?
(2) If so, is Tennessee's former default method of execution, the one-drug pentobarbital lethal injection protocol first adopted in 2013, a feasible and readily available alternative method of execution and/or are Plaintiffs required to demonstrate such an alternative under the facts of this case?
(3) Did Defendants' adopting and implementing Tennessee's midazolam, vecuronium bromide, and potassium chloride lethal injection protocol despite actual knowledge it would cause unnecessary and severe pain and suffering shock the conscience, i.e., have Defendants deliberately chosen to inflict severe pain and suffering?
Upon the conclusion of these proceedings, the parties to this action will never litigate these issues again. The resolution of these issue [sic] raised by the current pleadings and proof may not resolve every claims [sic] as to the July 5th Protocol. However, they will resolve some of those claims. As importantly, they will resolve critical factual issues that are applicable to both the January 8th and the July 5th Protocol. The vast majority of resources expended to date have been expended on those very issues.

Id. at 11-12 (emphasis added). The state court denied the motion to reconsider and expressly held that the “July 5, 2018 revision to the January 8, 2018 Lethal Injection Execution Manual did not constitute a substantial change to which new causes of action accrued.” Memorandum and Order Denying Motion at 4, Abdur'Rahman, et al. v. Parker, No. 18-183-II(III) (Davidson Chancery Jul. 26, 2018).

         Hours after denying the motion to reconsider, the state court ruled in favor of the defendants on the plaintiffs' claims. (Doc. No. 13-2). The Tennessee Supreme Court assumed jurisdiction over the inmates' appeal and affirmed on October 8, 2018. Abdur'Rahman v. Parker, 558 S.W.3d 606, 613 (Tenn. 2018). The United States Supreme Court has denied three petitions for certiorari arising from the state court's decision. Abdur'rahman v. Parker, No. 18-8332, 2019 WL 2078094 (U.S. May 13, 2019); Miller v. Parker, 139 S.Ct. 626 (2018) (denying certiorari and denying stay of execution); Zagorski v. Parker, 139 S.Ct. 11 (2018) (same).

         Plaintiff and three other inmates-the same group who joined in the motion to reconsider in state court discussed above-filed suit in this Court on November 2, 2018, alleging violations of their constitutional rights in connection with their anticipated executions and seeking a temporary restraining order or preliminary injunction. Complaint for Injunctive Relief, Miller, et al. v. Parker, No. 3:18-1234 (M.D. Tenn. Nov. 2, 2018). On November 15, 2018, the Court enjoined Defendants from proceeding with any Plaintiff's execution without providing telephone access to his attorney-witness, but held that Plaintiffs had insufficient likelihood of success on their Ex Post Facto, Eighth Amendment, and coerced-waiver claims to warrant further preliminary relief. Memorandum and Order, Miller, et al. v. Parker, No. 3:18-1234 (M.D. Tenn. Nov. 15, 2018) (Campbell, J.), (Miller Doc. No. 20). The United States Court of Appeals affirmed that ruling. Miller v. Parker, 910 F.3d 259, 260 (6th Cir. 2018), cert. denied, 139 S.Ct. 399 (2018). After Mr. Miller's execution on December 6, 2018, the Court severed the claims of the remaining three inmates, Order, Miller, et al. v. Parker, No. 3:18-1234 (M.D. Tenn. Jan. 1, 2019) (Campbell, J.), (Miller Doc. No. 47), and Plaintiff West's case was assigned to the undersigned for further proceedings. Plaintiff filed an Amended Complaint for Injunctive Relief on February 7, 2019 (Doc. No. 11), which is the subject of Defendants' pending Motion to Dismiss. (Doc. No. 12.)

         III. Discussion

         Plaintiff sues Tony Parker, the Commissioner of the TDOC, in his official capacity as the official who seeks to execute Plaintiff pursuant to the current execution protocol and will oversee the execution. He also sues Tony Mays, the Warden of Riverbend Maximum Security Institution, in his official capacity as the official who is “directly in charge” of Plaintiff's execution. (Doc. No. 11 at 5.) He seeks a preliminary and permanent injunction preventing Defendants from executing him by the current lethal injection protocol, executing him by electrocution, executing him in any manner that violates the Ex Post Facto clause and is contrary to the sentence imposed on him, and executing him in any manner without allowing him to have two attorney witnesses with immediate ...


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