United States District Court, M.D. Tennessee, Nashville Division
RICHARDSON UNITED STATES DISTRICT JUDGE.
Todd Sutton, an inmate on death row in Riverbend Maximum
Security Institution, brings this action for injunctive
relief challenging the method of 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 subject-matter jurisdiction and
failure to state a claim upon which relief can be granted.
(Doc. No. 12.) For the following reasons, Defendants'
motion will be granted, and this action will be dismissed in
purposes of a motion to dismiss, the Court must take all of
the factual allegations in the complaint as true.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face. Id. A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged. Id. Threadbare recitals of the elements of
a cause of action, supported by mere conclusory statements,
do not suffice. Id. When there are well-pleaded
factual allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an
entitlement to relief. Id. at 1950. A legal
conclusion, including one couched as a factual allegation,
need not be accepted as true on a motion to dismiss, nor are
mere recitations of the elements of a cause of action
sufficient. Id.; Fritz v. Charter Township of
Comstock, 592 F.3d 718, 722 (6th Cir. 2010), cited
in Abriq v. Hall, 295 F.Supp.3d 874, 877 (M.D. Tenn.
2018). Moreover, factual allegations that are merely
consistent with the defendant's liability do not
satisfy the claimant's burden, as mere consistency does
not establish plausibility of entitlement to relief
even if it supports the possibility of relief.
Iqbal, 556 U.S. at 678.
determining whether a complaint is sufficient under the
standards of Iqbal and its predecessor and
complementary case, Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007), it may be appropriate to “begin
[the] analysis by identifying the allegations in the
complaint that are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 680. This can be
crucial, as no such allegations count toward the
plaintiff's goal of reaching plausibility of relief. To
reiterate, such allegations include “bare assertions,
” formulaic recitation of the elements, and
“conclusory” or “bold” allegations.
Id. at 681. The question is whether the remaining
allegations - factual allegations, i.e., allegations
of factual matter - plausibly suggest an entitlement to
relief. Id. If not, the pleading fails to meet the
standard of Federal Rule of Civil Procedure 8 and thus must
be dismissed pursuant to Rule 12(b)(6). Id. at 683.
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”).
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.
FACTS AND PROCEDURAL BACKGROUND
1985, when Plaintiff committed the murder for which he was
convicted and sentenced to death, see State v.
Sutton, 761 S.W.2d 763, 764 (Tenn. 1988), Tennessee law
provided, as it had since at least 1932, that inmates
sentenced to death would be executed by means of
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.
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
finding of the jury that the punishment for the defendant,
Nicholas Todd Sutton, shall be death, the Court sentences
you, Nicholas Todd Sutton, to be put to death by
electrocution.” (Doc. No. 11-46 at 2-3.)
Court recently described in detail the intervening changes to
Tennessee law regarding methods of execution. West v.
Parker, No. 3:19-CV-00006, 2019 WL 2341406, at *2-4
(M.D. Tenn. June 3, 2019) (Crenshaw, C.J.),
aff'd, No. 19-5585, 2019 WL 3564476 (6th Cir.
Aug. 6, 2019). Under current law, the presumptive method of
execution is lethal injection, but inmates condemned for
crimes they committed before January 1, 1999, can choose to
be electrocuted instead by signing a written waiver. Tenn.
Code Ann. § 40-23-114(a) and (b). Electrocution is also
the default method of execution if lethal injection is
declared unconstitutional or the TDOC Commissioner certifies
that lethal injection drugs are unavailable. §
40-23-114(e). And finally, state law provides that if the
method to be used is declared unconstitutional, an execution
shall be carried out “by any constitutional method of
execution.” § 40-23-114(c).
background this Court recently recited of the TDOC's
lethal injection protocols and litigation over those
protocols applies equally to Plaintiff, as he was
consistently part of the group of death row inmates involved
in the relevant state-court litigation. Specifically, he
shared counsel with Stephen Michael West, and all arguments
and motions made on West's behalf in state court were
made on Plaintiff's behalf as well. Accordingly, the
Court adopts the background previously set forth:
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). 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. [FN1 omitted] Order Applying
Tennessee Civil Procedure Rule 15.02, Abdur'Rahman,
et al. v. Parker, No. 18-183-II(III) (Davidson Chancery
Jul. 19, 2018). [FN2 omitted] 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).
FN3 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
(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
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).
FN3 The motion was filed on behalf of
state-court plaintiffs David Earl Miller, Nicholas Todd
Sutton, Stephen Michael West, and Larry McKay. It expressly
noted that “[r]econsideration is not sought by any
Plaintiff not so joined.” Id. at 2 n.2.
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).
West v. Parker, No. 3:19-CV-00006, 2019 WL 2341406,
at *4-6 (M.D. Tenn. June 3, 2019), aff'd, No.
19-5585, 2019 WL 3564476 (6th Cir. Aug. 6, 2019).
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'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.)
Court dismissed West's materially identical lawsuit on
June 3, 2019, and the Sixth Circuit affirmed that dismissal
on August 6, 2019. West, 2019 WL 2341406,
aff'd, 2019 WL 3564476. The Supreme Court denied
certiorari on August 15, 2019, West v. Parker, No.
16-5561, 2019 WL 3821757 (Aug. 15, 2019), and West was
executed by electrocution that same day.
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 access to a telephone and
each other throughout the execution. (Id. at
146-47.) Defendants move to dismiss all claims on the grounds
of lack of jurisdiction and/or failure to state a claim.
(Doc. No. 12.)
the parties in West, the parties here disagree about
whether the doctrine of res judicata applies to this case in
light of the state-court litigation. Res judicata, in its
narrowest sense, is “the preclusion of claims that have
once been litigated or could have been litigated” in a
previous lawsuit. Hutcherson v. Lauderdale Cty.,
Tenn., 326 F.3d 747, 758 n.3 (6th Cir. 2003). It
“rests at bottom upon the ground that the party to be
affected, or some other with whom he is in privity, has
litigated or had an opportunity to litigate the same matter
in a former action in a court of competent
jurisdiction.” Richards v. Jefferson Cty.,
Ala., 517 U.S. 793, 797 n.4 (1996).
has dictated that state court judicial proceedings
“shall have the same full faith and credit in every
court within the United States . . . as they have by law or
usage in the courts of such State . . . from which they are
taken.” 28 U.S.C.A. § 1738. Accordingly, federal
courts are required to apply res judicata in a manner
“to give the same effect to the Tennessee state court
judgment as would another Tennessee state court.”
Hutcherson, 326 F.3d at 758. “Indeed, though
the federal courts may look to the common law or to the
policies supporting res judicata and collateral estoppel in
assessing the preclusive effect of decisions of other federal
courts, Congress has specifically required all federal courts
to give preclusive effect to state-court judgments whenever
the courts of the State from which the judgments emerged
would do so[.]” Allen v. McCurry, 449 U.S. 90,
96 (1980). This policy “not only reduce[s] unnecessary
litigation and foster[s] reliance on adjudication, but also
promote[s] the comity between state and federal courts that
has been recognized as a bulwark of the federal
system.” Id. at 95-96.
courts have “a long-standing tradition in upholding
judgments” pursuant to res judicata. Regions Fin.
Corp. v. Marsh USA, Inc., 310 S.W.3d 382, 400 (Tenn. Ct.
App. 2009). In rejecting a party's arguments for adopting
several exceptions to res judicata, the Tennessee Court of
Appeals quoted the Tennessee Supreme Court regarding the
policy in favor of a strong res judicata doctrine:
The policy rationale in support of Res Judicata is not based
upon any presumption that the final judgment was right or
just. Rather, it is justifiable on the broad grounds of
public policy which requires an eventual end to litigation.
Akin to statutes of limitations, the doctrine of Res judicata
is a ‘rule of rest' and ‘private peace'.
. . . It is not material on this point whether the finding of
the jury was Right or not in the former suit. That cannot be
questioned any more between the same parties or their
privies. Right or wrong the question was finally closed,
unless a new trial had been obtained in the same suit. This
rule is not alone for the benefit of the parties litigant, to
put an end to strife and contention between them, and produce
certainty as to individual rights, but it is also intended to
give dignity and respect to judicial proceedings, and relieve
society from the expense and annoyance of indeterminable
litigation about the same matter.
Id. at 400-01 (quoting Moulton v. Ford Motor
Co., 533 S.W.2d 295, 296 (Tenn. 1976)).
courts use the term “res judicata” broadly to
include both claim preclusion, as just described, and issue
preclusion (also known as collateral estoppel). Regions
Fin. Corp., 310 S.W.3d at 393. The Sixth Circuit has
summarized the elements of the claim-preclusion type of res
judicata defense in Tennessee:
The state of Tennessee bars under res judicata “all
claims that were actually litigated or could have been
litigated in the first suit between the same parties.”
Am. Nat'l Bank & Trust Co. of Chattanooga v.
Clark, 586 S.W.2d 825, 826 (Tenn. 1979). Four elements
must be established before res judicata can be asserted as a
defense: (1) the underlying judgment must have been rendered
by a court of competent jurisdiction; (2) the same parties
were involved in both suits; (3) the same cause of action was
involved in both suits; and (4) the underlying judgment was
on the merits. Collins v. Greene Cty. Bank, 916
S.W.2d 941, 945 (Tenn. Ct. App. 1995) (citing Lee v.
Hall, 790 S.W.2d 293, 294 (Tenn. Ct. App. 1990)).
Id. The corollary doctrine of issue preclusion
dictates that “[w]hen an issue of fact or law is
actually litigated and determined by a valid and final
judgment . . . the determination is conclusive in a
subsequent action between the parties, whether on the same or
a different claim.” In re
Bridgestone/Firestone, 286 S.W.3d 898, 904 (Tenn.
Ct. App. 2008) (quoting Restatement (Second) of Judgments
§ 27 (1982)). The elements of the issue-preclusion
type of Tennessee's res judicata doctrine are:
(1) that the issue to be precluded is identical to an issue
decided in an earlier proceeding, (2) that the issue to be
precluded was actually raised, litigated, and decided on the
merits in the earlier proceeding, (3) that the judgment in
the earlier proceeding has become final, (4) that the party
against whom collateral estoppel is asserted was a party or
is in privity with a party to the earlier proceeding, and (5)
that the party against whom collateral estoppel is asserted
had a full and fair opportunity in the earlier proceeding to
contest the issue now sought to be precluded.
Bowen ex rel. Doe v. Arnold, 502 S.W.3d 102, 107
assert that several of Plaintiff's claims are barred by
the doctrine of res judicata as a result of the
Abdur'Rahman litigation in state court and
should be dismissed for lack of subject matter jurisdiction.
(Doc. No. 13 at 1, 12-19.) Plaintiff responds that res
judicata does not apply to this case at all for four reasons:
(1) Plaintiff filed suit in state court about the January 8,
2018 execution protocol and was not really a party to
litigation of the July 5, 2018 protocol he challenges now
(Doc. No. 17 at 7); (2) the Davidson County Chancery Court
lacked authority to stay Plaintiff's execution
(id. at 11); (3) Plaintiff was denied the
opportunity to be heard in state court (id. at 15);
and (4) Plaintiff now relies on new facts that could not have
been presented in state court. (Id. at 21.)
Court thoroughly analyzed and rejected each of
Plaintiff's arguments in its recent opinion in
West, which the Sixth Circuit has affirmed on the
merits. Accordingly, the Court adheres to its previous
1. Whether Plaintiff Has Litigated the Constitutionality of
the July 5 Protocol The state-court plaintiffs' central
claim in Abdur'Rahman was that the TDOC's
midazolam-based three-drug lethal injection protocol,
originally known as “Protocol B, ” violated their
constitutional and statutory rights in a host of different
ways, because the three-drug protocol would cause severe and
unnecessary pain and suffering. (Doc. No. 13-1 at 7, 24,
29-51). They alleged pages of facts about midazolam,
vecuronium bromide, and potassium chloride to support their
chief position that midazolam was “scientifically
incapable” of preventing the “constitutionally
intolerable pain” that would be caused by the
three-drug protocol. (Id. at 29-51, 81). Defendants
argue that the July 5 revision to the lethal injection
protocol was not a substantial change with regard to the
three-drug protocol at issue in both these cases and that
Plaintiff's attempt to distinguish the protocols by date
is “a red herring.” (Doc. No. 13 at 16.)
The Sixth Circuit has repeatedly considered whether a new
lethal injection protocol gives rise to a new cause of action
in the context of determining how to apply a statute of
limitations. In Cooey v. Strickland, 479 F.3d 412
(6th Cir. 2007) (“Cooey II”), the inmate
argued that his cause of action did not accrue until Ohio
revised its lethal injection protocol with respect to the
timing and duration of executions, medical examinations prior
to executions, and the procedures for establishing and
maintaining intravenous lines. Id. at 424. But the