West v. Parker

STEPHEN MICHAEL WEST, Plaintiff-Appellant, v. TONY PARKER, Commissioner of Tennessee Department of Correction, and TONY MAYS,Warden of Riverbend Maximum Security Institution, Defendants-Appellees.

No. 19-5585

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

August 6, 2019

NOT RECOMMENDED FOR PUBLICATION

File Name: 19a0410n.06

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE

BEFORE: BOGGS, MOORE, and COOK, Circuit Judges.

BOGGS, Circuit Judge.

Stephen West, an inmate on death row in the Riverbend Maximum Security Institution in Tennessee, appeals from a district-court order dismissing his 42 U.S.C. § 1983 civil-rights action challenging Tennessee's lethal-injection protocol. We affirm the district court's order.

FACTUAL AND PROCEDURAL HISTORY

A Tennessee jury convicted West of first-degree premeditated murder, aggravated kidnapping, and aggravated rape in the deaths of Wanda Romines and her daughter, Sheila Romines. He was sentenced to death for each murder. See State v. West, 767 S.W.2d 389, 390 (Tenn. 1989). The Tennessee Supreme Court affirmed his convictions and death sentence. Id. at 403. We previously affirmed the district court's denial of West's federal habeas petition, West v. Bell, 550 F.3d 542 (6th Cir. 2008), and denied him permission to file a successive habeas petition, In re West, 402 F. App'x 77 (6th Cir. 2010).

At the time West was sentenced to death, Tennessee had selected electrocution as its method of execution. See Tenn. Code Ann. § 40-23-114 (1982). In 2000, Tennessee adopted lethal injection as its default method of execution. See Tenn. Code Ann. § 40-23-114(a). A person sentenced to death for an offense committed before January 1, 1999, "may elect to be executed by electrocution by signing a written waiver waiving the right to be executed by lethal injection." Id. (b). In the event that lethal injection is held unconstitutional, or one or more of the essential ingredients for carrying out a death sentence is unavailable through no fault of the Tennessee Department of Corrections (TDOC), a death sentence shall be carried out by electrocution. Id. (e)(1)-(2).

In 2013, West and other capital prisoners filed suit in state court, challenging amendments to Tennessee's lethal-injection protocol, which at that time provided that inmates would be executed through the injection of a lethal dose of pentobarbital. West v. Schofield, 519 S.W.3d 550, 552-53 (Tenn. 2017), cert. denied sub nom. West v. Parker, 138 S. Ct. 476, and Abdur'Rahman v. Parker, 138 S. Ct. 647 (2018). The trial court denied relief, and the Tennessee Supreme Court affirmed. Id. at 552.

TDOC revised its lethal-injection protocol in January 2018 to provide for two alternative methods of execution. Protocol A called for a lethal dose of pentobarbital. Protocol B is a three-drug protocol comprised of successive doses of midazolam, vecuronium bromide, and potassium chloride. See West v. Parker, No. 3:19-cv-00006, 2019 WL 2341406, at *4 (M.D. Tenn. June 3, 2019). West and other inmates filed a declaratory-judgment action in the Davidson County Chancery Court asserting facial challenges to the constitutionality of the January 2018 protocol.Abdur'Rahman v. Parker, 558 S.W.3d 606, 612 (Tenn. 2018). In their second amended complaint, filed in July 2018, the plaintiffs identified pentobarbital as an alternative method of execution for the three-drug protocol. Ibid. Two days after the plaintiffs amended their complaint, TDOC revised its lethal-injection protocol to eliminate the use of pentobarbital, so that the three-drug protocol was the "exclusive method of execution by lethal injection in Tennessee." Ibid. After a trial, the chancery court dismissed the complaint, ruling that the plaintiffs failed to prove both that an available alternative method of execution existed, and that the three-drug protocol created a demonstrated risk of severe pain. Id. at 613. The chancery court also denied the plaintiffs relief on their other constitutional claims "that included substantive due process, procedural due process, and access to the courts." Ibid.

The Tennessee Supreme Court affirmed the trial court's dismissal of the action. Id. at 625. The Supreme Court denied certiorari in three petitions arising from that decision. See Abdur'Rahman v. Parker, 139 S. Ct. 1533 (2019); Miller v. Parker, 139 S. Ct. 626 (2018); Zagorski v. Parker, 139 S. Ct. 11 (2018).

West and three other inmates then filed suit in federal district court alleging violations of their constitutional rights in connection with their pending executions. They sought a temporary restraining order or preliminary injunction. See West, 2019 WL 2341406, at *6. The district court barred defendants from proceeding with an execution without providing the plaintiff's attorney-witness access to a telephone, but denied any preliminary relief because the plaintiffs had not shown a likelihood of success on the merits of their various claims. Ibid. This court affirmed that ruling. See Miller v. Parker, 910 F.3d 259, 260 (6th Cir. 2018), cert. denied, 139 S. Ct. 399. After Earl Miller was executed, the district court severed the claims of the remaining three plaintiffs.West, 2019 WL 2341406, at *6. West's amended complaint in federal district court asserted seven grounds for relief:

Count One: Death by lethal injection as required by Tennessee's July 5, 2018 Protocol violates the Ex Post Facto Clause of the United States Constitution, Article II;

Count Two: Tennessee's Electrocution Protocol constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments;

Count Three: Tennessee's July 5, 2018 lethal injection protocol violates the Eighth and Fourteenth Amendments under Wilkerson v. Utah, 99 U.S. 130 (1878), Baze v. Rees, 553 U.S. 35 (2008); Glossip v. Gross, ___ U.S. ___, 135 S. Ct. 2726 (2015);

Count Four: Execution by the July 5th Protocol violates Plaintiff's due process rights because it will alter the sentence imposed by the court, in violation of the Fourteenth Amendment.

Count Five: Regardless of the constitutionality of Plaintiff West's sentence, the actual infliction of any punishment which causes Plaintiff West's death violates the Eighth and Fourteenth Amendments because it is "cruel and unusual" under the meaning of the term intended by the drafters of the Eighth Amendment;

Count Six: The July 5th Protocol deprives Plaintiff West of the opportunity to challenge the constitutionality of electrocution because he must elect electrocution to avoid the harsher punishment of lethal injection, in violation of the Fourteenth Amendment;

Count Seven: Tennessee law violates Plaintiff West's rights to access courts and counsel by prohibiting the presence of more than one attorney at an execution and denying that attorney access to a telephone during the execution, contrary to the First, Eighth and Fourteenth Amendments.

Am. Compl. at i-ii, West v. Parker (No. 3:19-cv-00006 Feb. 7, 2019). West sought preliminary and permanent injunctive relief.

The defendants moved to dismiss under Fed. R. Civ. P. 12(b)(1) and (b)(6) for lack of jurisdiction and failure to state a claim upon which relief can be granted. West, 2019 WL 2341406,at *1. The district court granted the defendants' motion. Ibid. It ruled that West's claims under Counts One, Three, and Four were precluded from consideration by the doctrine of res judicata. See id. at *7-13. It also held that West's arguments concerning Counts Five and Six were foreclosed by Supreme Court precedent. See id. at *20-22. The district court concluded that Count Two, concerning the constitutionality of electrocution, was not ripe, id. at *15-17, and that Count Seven was moot because the defendants had agreed to provide telephone access to West's attorney-witness during his execution, and West had not identified any "factual or constitutional basis" why West needed two witnesses. Id. at *22.

This appeal followed.

ANALYSIS

Standard of Review

We review de novo a district court's dismissal of a complaint under Fed. R. Civ. P. 12(b)(1) for lack of subject-matter jurisdiction, McCormick v. Miami Univ., 693 F.3d 654, 658 (6th Cir. 2012), and Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted, Girl Scouts of Middle Tenn., Inc. v. Girl Scouts of the U.S.A., 770 F.3d 414, 418 (6th Cir. 2014). "We construe the complaint in the light most favorable to the plaintiff, accept all well-pleaded factual allegations as true, and examine whether the complaint contains 'sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Hill v. Snyder, 878 F.3d 193, 203 (6th Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

The Parties' Arguments

West asserts that the district court improperly determined that the Tennessee Supreme Court's decision in Abdur'Rahman v. Parker, 558 S.W.3d 606 (Tenn. 2018), was entitled to preclusive effect and therefore res judicata bars West's claims for relief. West offers three primaryreasons why res judicata is not applicable. First, West argues that he could not obtain the relief he sought from the Tennessee chancery court because it lacked jurisdiction to stay his execution. Second, he contends that res judicata should not apply because the final judgment in Abdur'Rahman "was rendered without due process." Brief of Petitioner-Appellant at 14-15, West v. Parker, No. 19-5585 (6th Cir. June 24, 2019). Third, West asserts that the state court lacked jurisdiction to "enter a judgment against him on a complaint to which he was not a party . . . ." Id. at 14. Finally, West argues that the district court erred in its analysis of alternate grounds for dismissing Counts Five, Six, and Seven of his federal complaint.¹

Defendants argue that we should affirm the district court's ruling that the majority of West's claims are barred by res judicata. The Defendants contend that all of West's claims were or could have...