Opinion
NO. 3:18-cv-01234
04-29-2020
Terry Lynn KING, Plaintiff, v. Tony PARKER, et al., Defendants.
Stephen M. Kissinger, Federal Defender Services of Eastern TN, Inc., Knoxville, TN, for Plaintiff. Charlotte M. Davis, Miranda H. Jones, Robert W. Mitchell, Scott C. Sutherland, Tennessee Attorney General's Office, Nashville, TN, for Defendants.
Stephen M. Kissinger, Federal Defender Services of Eastern TN, Inc., Knoxville, TN, for Plaintiff.
Charlotte M. Davis, Miranda H. Jones, Robert W. Mitchell, Scott C. Sutherland, Tennessee Attorney General's Office, Nashville, TN, for Defendants.
MEMORANDUM OPINION
WILLIAM L. CAMPBELL, JR., UNITED STATES DISTRICT JUDGE
Terry Lynn King, a Tennessee inmate sentenced to death for first-degree murder, filed his Amended Complaint for Injunctive Relief on January 25, 2019. (Doc. No. 51.) Plaintiff challenges the constitutionality of Tennessee's method of execution and sues Tony Parker, the Commissioner of the Tennessee Department of Correction (TDOC), and Tony Mays, the Warden of Riverbend Maximum Security Institution, where Plaintiff is incarcerated on death row. The Court previously granted Defendants’ Rule 12(b) motion to dismiss the amended complaint except with respect to Count 3, in which Plaintiff alleges that Tennessee's current lethal-injection protocol violates the Eighth Amendment. (Doc. No. 71.) That is the only claim remaining in this lawsuit.
Defendants have each filed an answer to the amended complaint (Doc. Nos. 72, 73) and now move pursuant to Rule 12(c) for judgment on the pleadings. (Doc. No. 87.) Plaintiff has responded in opposition to the motion (Doc. No. 92), and Defendants have replied in support of it. (Doc. No. 95.) The matter is fully briefed and ripe for the Court's review. For the reasons explained below, Defendants’ motion will be denied.
I. LEGAL STANDARDS
"After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). The standard for evaluating a motion for judgment on the pleadings is the same as that applicable to a motion to dismiss under Rule 12(b)(6) for failure to state a claim. Hayward v. Cleveland Clinic Found. , 759 F.3d 601, 608 (6th Cir. 2014). "In reviewing a motion for judgment on the pleadings, we construe the complaint in the light most favorable to the plaintiff, accept all of the complaint's factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of the claims that would entitle [him to] relief." Id. (internal quotation marks and citations omitted). Thus, the court must determine whether the allegations establish the movant is entitled to judgment as a matter of law. Depositors Ins. Co. v. Estate of Ryan , 637 F. App'x. 864, 868 (6th Cir. 2016). "A party's Rule 12(c) motion is properly granted ‘when no material issue of fact exists and the party making the motion is entitled to judgment as a matter of law.’ " Id. (quoting JPMorgan Chase Bank, N.A. v. Winget , 510 F.3d 577, 582 (6th Cir. 2007), and Paskvan v. City of Cleveland Civil Service Commission , 946 F.2d 1233, 1235 (6th Cir. 1991) ).
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 Section 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.
To prevail on a claim that a state's method of execution violates the Eighth Amendment, a "plaintiff must: (1) show that the intended method of execution is ‘sure or very likely to cause serious illness and needless suffering,’ and (2) ‘identify an alternative [method] that is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain.’ " See In re Ohio Execution Protocol Litig. (Henness v. DeWine) , 946 F.3d 287, 289 (6th Cir. 2019) (quoting Glossip v. Gross , 576 U.S. 863, 135 S. Ct. 2726, 2737, 192 L.Ed.2d 761 (2015) ).
II. BACKGROUND
The Court detailed the history of Tennessee's methods of execution and this litigation in its previous Memorandum Opinion (Doc. No. 70 at 3–7), most of which does not bear repeating here. Suffice it to say that Tennessee's current presumptive method of execution is lethal injection, Tenn. Code Ann. § 40-23-114(a), and that its current lethal-injection protocol consists of a 3-drug combination beginning with a 500 milligram dose of the sedative midazolam, followed by 100 milligrams of the paralytic vecuronium bromide, and then 240 milliequivalents of the heart-stopping agent potassium chloride. (See Doc. No. 1-4 at 34.) Plaintiff alleges in Count 3 that midazolam will not prevent him from experiencing the constitutionally unacceptable pain of the other two drugs and that there are alternative methods of execution available that pose substantially lower risk of pain and suffering. (Doc. No. 51 at 106–07.)
III. DISCUSSION
A. Midazolam
Defendants argue that they are entitled to judgment as a matter of law based on the December 2019 opinion by the United States Court of Appeals for the Sixth Circuit in In re Ohio Execution Protocol Litig. (Henness v. DeWine) , 946 F.3d 287 (6th Cir. 2019), in which the Sixth Circuit affirmed the denial of a preliminary injunction against the use of Ohio's lethal-injection protocol. According to Defendants, Henness forecloses Plaintiff's challenge to Tennessee's lethal-injection protocol because Henness involved a materially identical 3-drug protocol. (Doc. No. 88 at 4.) A discussion of other legal opinions involving 3-drug midazolam-based protocols is pertinent here.
In 2015, the United States Supreme Court considered a challenge to the constitutionality of Oklahoma's 3-drug protocol, which consisted of 500 milligrams of midazolam, followed by a paralytic (either pancuronium bromide, vecuronium bromide, or rocuronium bromide ), and potassium chloride. Glossip v. Gross , 576 U.S. 863, 135 S. Ct. 2726, 2734, 192 L.Ed.2d 761 (2015). The district court in that case held a 3-day evidentiary hearing and denied the plaintiffs’ motion for preliminary injunction against executions using the protocol. Id. at 2735–36. In addition to finding that the plaintiffs had not established a better available alternative, the court found that plaintiffs had not established that Oklahoma's method was sure or very likely to cause needless suffering:
The District Court supported its decision with findings of fact about midazolam. It found that a 500–milligram dose of midazolam "would make it a virtual certainty that any individual will be at a sufficient level of unconsciousness to resist the noxious stimuli which could occur from the application of the second and third drugs." App. 77. Indeed, it found that a 500-milligram dose alone would likely cause death by respiratory arrest within 30 minutes or an hour.
Id. at 2736. The Supreme Court reviewed that factual finding for clear error and affirmed. Id. at 2739. In doing so, it emphasized the fact that "numerous other courts have concluded that the use of midazolam as the first drug in a three-drug protocol is likely to render an inmate insensate to pain that might result from administration of the paralytic agent and potassium chloride." Id. at 2739–40 (collecting cases). The Court then summarized the relevant expert testimony about midazolam's effectiveness as a sedative, said that the plaintiffs’ "own experts effectively conceded that they lacked evidence to prove their case beyond dispute," and concluded that "[b]ased on the evidence that the parties presented to the District Court, we must affirm." Id. at 2741.
The Glossip decision—bound as it was to the evidence in that case—was not seen by lower courts as a bar to all litigation of midazolam-based protocols. See Grayson v. Warden, Comm'r, Alabama Doc , 869 F.3d 1204, 1215–17 (11th Cir. 2017) (observing that district court had denied motion to dismiss based on Glossip ’s rejection of "virtually identical claims about midazolam's effectiveness"). In fact, the Sixth Circuit expressly held that it was not:
[W]e reject the State's argument that the Supreme Court's holding in Glossip categorically bars the plaintiffs’ claim here. The Court's holding—that the district court there "did not commit clear error when it found that midazolam is highly likely to render a person unable to feel pain during an execution[,]" 135 S. Ct. at 2739 —is couched expressly in terms of a standard of review that cuts the other way here.
In re Ohio Execution Protocol (Fears v. Morgan) , 860 F.3d 881, 886 (6th Cir. 2017). Litigation over the constitutionality of midazolam-based protocols thus continued in this circuit unabated, though unsuccessful.
In Fears , for example, the Sixth Circuit—after finding that Glossip did not dispose of the case as a matter of law—summarized the testimony in the record and found that the plaintiffs had "fallen well short" of establishing that Ohio's protocol, which includes a 500 milligram dose of midazolam, was " ‘sure or very likely’ to cause serious pain." Id. at 890. Accordingly, it held that the district court's determination that the plaintiffs’ likelihood of success on their claims supported stays of execution was "seriously flawed" and vacated the preliminary injunction. Id. at 886, 892. Still, that decision did not end the dispute. Litigation over whether midazolam presented an unconstitutional risk of pain continued in the district court on remand, where the district court heard new evidence and found that the plaintiffs had failed to satisfy the first prong of Glossip. In re Ohio Execution Protocol Litig. (Campbell v. Kasich) , 881 F.3d 447, 449 (6th Cir. 2018). The Sixth Circuit affirmed, observing that it reviewed the district court's factual findings for clear error. Id. at 451. Even still, litigation over the constitutionality of Ohio's protocol continued in the district court, which brings us to Henness. Henness argued in district court "that the drug protocol Ohio intended to use to carry out his death sentence—which is composed of 500 milligrams of midazolam, a paralytic agent, and potassium chloride—was likely to cause him to suffer a painful death, and that, given the availability of significantly less painful alternative methods of execution, the use of that protocol would violate the Eighth Amendment's prohibition on cruel and unusual punishment." Henness , 946 F.3d at 288–89. He offered expert testimony in the district court in support of his claim. Id. at 289. Although it denied a preliminary injunction based on Henness's failure to establish an available alternative method of execution, the district court found that he established a likelihood of success on the first prong of Glossip —that Ohio's protocol was sure or very likely to cause needless suffering. Id.
On appeal, the Sixth Circuit could have avoided the issue of Glossip ’s first prong entirely and affirmed simply on Henness's failure to meet his burden on the second prong. But it nevertheless opined that the district court had erred in two ways when it found Henness had satisfied the first prong. Id. at 289–91. First, it found that even accepting as true Henness's assertions that midazolam itself would cause pulmonary edema and associated suffering from "chest tightness, chest pain, and sensations of drowning, suffocating, and dying" those sensations do not constitute unconstitutional suffering. Id. at 289–90. Second, the Sixth Circuit found that "[w]ithout evidence showing that a person deeply sedated by a 500 milligram dose of midazolam is ‘sure or very likely’ to experience an unconstitutionally high level of pain [from the second and third drugs], Henness has not met his burden on this prong, and the district court clearly erred in concluding otherwise." Id. at 290. The court observed that it had reached that same conclusion in Fears "[a]fter considering the testimony of several medical experts, as well as reports from numerous executions carried out using the three-drug protocol," and that "Henness offers no good reason for reaching a different outcome today." Id. at 290–91.
Those two holdings are legally distinct. In the first, the court accepts the plaintiff's facts—the pain and suffering caused by midazolam itself—as true but holds that they are insufficient as a matter of law to support a claim under Glossip. Thus, it would be legally impossible for anyone alleging only sensations of drowning or suffocating to establish an Eighth Amendment violation in connection with a method of execution. But in the second holding, the court's conclusion is based on the lack of evidence to support a finding of severe and excessive pain, as opposed to "some pain." Id. at 290. The court found that Henness's claim was "[w]ithout evidence," that he "ha[d] not met his burden," and "offer[ed] no good reason" why he should prevail when Fears had not. But that is not the same as holding that it would be legally impossible for him, or any other plaintiff, to do so. Id. at 290–91. That possibility, therefore, remains open to Plaintiff.
Defendants argue that Plaintiff is bound by the outcome in Henness because he alleged in his amended complaint that his evidence would be materially similar to the evidence offered in that case. (Doc. No. 88 at 6.) But Plaintiff correctly responds that he alleged that his evidence would be materially similar to that in Henness "and/or" another recent case in Tennessee court. (Doc. No. 92 at 6–7.) But more importantly, Plaintiff's amended complaint includes factual allegations that clearly satisfy Glossip ’s first prong, including his allegations that midazolam will not prevent him from experiencing "the severe pain caused by potassium chloride as it passes through his circulatory system and ignites nerve cells throughout the body," that there is a substantial risk that he will experience "the pain and suffering caused by potassium chloride as it passes through [his] veins and the pain and suffering caused by cardiac arrest," and that such pain will be at a level that is "constitutionally unacceptable." (Doc. No. 51 at 24, 107 (emphasis added).) He alleges that "[m]idazolam has no analgesic effects, i.e., it does not stop an individual from feeling pain." (Id. at 108.) In essence, therefore, Plaintiff alleges that all the pain associated with the administration of the last two drugs of the protocol—or at least enough of it to be constitutionally unacceptable—will be experienced despite the administration of midazolam. Whether his evidence will prove the truth of that allegation remains to be seen, but his allegations are sufficient to entitle him to try.
As the Sixth Circuit has observed, the question of whether midazolam "protect[s] against the serious pain of the second and third drugs" is "already well-worn ground," Campbell , 881 F.3d at 452, but it has never been answered as a matter of law. Defendants offer no reason to believe that Henness did so when Glossip and Fears did not. Accordingly, Henness does not dictate judgment as a matter of law in this case.
B. Risk of Improper Administration
Plaintiff also alleges as part of Count 3 that Tennessee's protocol allows for the risk of improper drug delivery exacerbated by lack of proper training, obstruction, paradoxical effect of midazolam, the use of unnecessary restraints, failure to prepare a contingency dose of midazolam, improper transportation and storage of lethal-injection chemicals, and allowing a too-rapid injection rate. (Doc. No. 51 at 113–30.) Defendants move for judgment on the pleadings with respect to those allegations on the basis that "allegations of maladministration" are "all but foreclosed" by applicable case law. (Doc. No. 88 at 6–11.)
Defendants are correct that some risk of accidents in the execution of a death sentence does not violate the Eighth Amendment, even when that risk is evidenced by previous accidents. Cooey v. Strickland , 589 F.3d 210, 223–25 (6th Cir. 2009). But, couched as they are within Count 3 of the amended complaint, the allegations in question do not appear to the Court to assert an independent claim for relief based on the risks of maladministration. Instead, those allegations simply assert facts Plaintiff believes to be relevant to his burden to show that execution with midazolam is sure or very likely to cause needless pain and suffering. Whether the alleged facts support Plaintiff's claim or are even relevant to it are matters to be determined at a later date. The Court sees no need at this time to proceed paragraph by paragraph through Plaintiff's surviving claim to determine the legal viability of each allegation.
IV. CONCLUSION
For the reasons set forth above, Defendants’ motion for judgment on the pleadings will be denied.
An appropriate Order will enter.