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Sutton v. Parker

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

September 5, 2019

TONY PARKER, et al., Defendants



         Nicholas 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 its entirety.


         For 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.

         In 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.

         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.


         In 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 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 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.)[1]

         The 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).

         The 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 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).

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).

         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'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.)

         The 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.

         III. ANALYSIS

         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 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.)

         A. RES JUDICATA

         As did 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).

         Congress 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.

         Tennessee 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)).

         Tennessee 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;[2] (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 (Tenn. 2016).

         Defendants 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.)

         The 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 analysis:

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 Sixth ...

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