Middlebrooks v. Parker

• Citation: 15 F.4th 784
• Decision Date: 15 October 2021
• Docket Number: No. 20-5419,20-5419
• Parties: Donald Ray MIDDLEBROOKS, Plaintiff-Appellant, v. Tony PARKER, in his official capacity as Tennessee's Commissioner of Correction; Tony Mays, in his official capacity as Warden of Riverbend Maximum Security Institution, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

15 F.4th 784

Donald Ray MIDDLEBROOKS, Plaintiff-Appellant,

v.Tony PARKER, in his official capacity as Tennessee's Commissioner of Correction; Tony Mays, in his official capacity as Warden of Riverbend Maximum Security Institution, Defendants-Appellees.

No. 20-5419

United States Court of Appeals, Sixth Circuit.

Argued: February 9, 2021

Decided and Filed: October 15, 2021

ARGUED: Richard Lewis Tennent, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE MIDDLE DISTRICT OF TENNESSEE, Nashville, Tennessee, for Appellant. Miranda Jones, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee. ON BRIEF: Richard Lewis Tennent, Kelley J. Henry, James O. Martin, III, Amy D. Harwell, Katherine Dix, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE MIDDLE DISTRICT OF TENNESSEE, Nashville, Tennessee, for Appellant. Miranda Jones, Scott Sutherland, Rob Mitchell, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.

Before: MOORE, CLAY, and WHITE, Circuit Judges.

HELENE N. WHITE, Circuit Judge.

Donald Ray Middlebrooks appeals the district court's order dismissing, as barred by res judicata, his 42 U.S.C. § 1983 action asserting facial and as-applied challenges to the constitutionality of Tennessee's lethal-injection protocol. We AFFIRM IN

PART, REVERSE IN PART, and REMAND.

I.

In 1989, a jury convicted Middlebrooks of felony murder and aggravated kidnapping and sentenced him to death. See State v. Middlebrooks , 840 S.W.2d 317 (Tenn. 1992). His death sentence was vacated by the Tennessee Supreme Court, id. at 347, but on remand, the jury resentenced him to death. See State v. Middlebrooks , 995 S.W.2d 550 (Tenn. 1999). After a lengthy procedural history that is not relevant to this appeal, Middlebrooks's conviction and death sentence were upheld on direct and collateral review. See Middlebrooks v. Carpenter , 843 F.3d 1127, 1129-34 (6th Cir. 2016) (setting forth the procedural history in Middlebrooks's case). In this suit, Middlebrooks challenges Tennessee's chosen method for carrying out his death sentence.

When Middlebrooks was resentenced to death, electrocution was Tennessee's only method of execution. In 2000, Tennessee adopted lethal injection as the default method of execution. Tenn. Code § 40-23-114 (2000). Under current law, electrocution is still an option for execution, but only if (1) an inmate sentenced to death before 1999 chooses execution by electrocution; (2) lethal injection is declared unconstitutional; or (3) the Commissioner of the Tennessee Department of Correction (TDOC) certifies that a necessary lethal-injection ingredient is unavailable. Tenn. Code § 40-23-114(a) - (e). Middlebrooks has attested that he will not choose execution by electrocution. In 2013, the TDOC, responsible for implementing lethal injection, adopted a single dose of pentobarbital

as the lethal-injection protocol. On January 8, 2018, it adopted a three-drug protocol of midazolam, vecuronium bromide, and potassium chloride as an alternative to pentobarbital. In February 2018, Middlebrooks and other death row inmates filed a declaratory action in the state chancery court asserting a facial challenge to the constitutionality of the three-drug protocol. See

Abdur'Rahman v. Parker , 558 S.W.3d 606 (Tenn. 2018).

The inmates designated pentobarbital as an alternative means of execution. Id . at 612. Tennessee then eliminated the pentobarbital protocol on July 5, 2018, leaving the three-drug protocol as its only lethal-injection protocol. Id . The state trial court held a ten-day trial in July 2018 and dismissed the complaint because the plaintiffs "failed to prove that their proposed alternative method of execution, a one-drug protocol using pentobarbital, is available to the Defendants." Id . at 623. The Tennessee Supreme Court affirmed, concluding that the plaintiffs failed to meet their burden of proving that pentobarbital was available as an alternative means of execution, even though other states used pentobarbital in executions:

We will not judge the reasonableness of Tennessee's efforts to obtain lethal injection drugs by the ability of other states to do so. See Arthur v. Comm'r, Ala. Dep't of Corr. , 840 F.3d 1268, 1302 (11th Cir. 2016) ("We expressly hold that the fact that other states in the past have procured a compounded drug and pharmacies in Alabama have the skills to compound the drug does not make it available to the ADOC for use in lethal injections in executions."), cert. denied sub nom. Arthur v. Dunn , ––– U.S. ––––, 137 S.Ct. 725, 197 L.Ed.2d 225 (2017), reh'g denied , ––– U.S. ––––, 137 S.Ct. 1838, 197 L.Ed.2d 777 (2017). Proof that lethal injection drugs are available with ordinary transactional effort requires more than mere speculation, more than just a showing of hypothetical availability. See In re Ohio Execution Protocol , [860 F.3d 881, 891 (6th Cir. 2017) ] (discounting testimony that the witness "believed ‘there are pharmacists in the United States that are able to compound pentobarbital for use in lethal injections because other states have been reported to have obtained compounded pentobarbital for use in executions,’ " because "that is quite different from saying that any given state can actually locate those pharmacies and readily obtain the drugs"). The fact that other states have or can obtain pentobarbital for executions is not proof that Tennessee can do so with ordinary transactional effort. See id.

The trial court ruled that the Plaintiffs failed to prove that their proposed alternative method of execution, a one-drug protocol using pentobarbital, is available to the Defendants. The Plaintiffs offered no direct proof as to availability of this alternative method of execution. All of the Plaintiffs’ expert witnesses confirmed that they were not retained to identify a source for pentobarbital and that they had no knowledge of where TDOC could obtain it. The Plaintiffs attempted to prove availability of pentobarbital by discrediting the testimony of the following witnesses for the Defendants: the TDOC Commissioner, the TDOC Deputy Commissioner for Administration, and the Warden of Riverbend Maximum Security Institution who is responsible for carrying out executions.

The trial court found nothing in the demeanor of these TDOC officials, nor the facts to which they testified, to overcome the presumption that they had discharged their duties in good faith and in accordance with the law. See West v. Schofield , [460 S.W.3d 113, 131 (Tenn. 2015) ]. The trial court found convincing their testimony that TDOC would use pentobarbital if it were available, because this Court recently upheld the one-drug protocol using pentobarbital. See West v. Schofield , [519 S.W.3d 550, 552 (Tenn. 2017) ]. We agree with the trial court that the Plaintiffs’ argument—that TDOC would not make a good-faith effort to locate pentobarbital—defies common sense. Moreover, the trial court accredited the testimony of the TDOC officials, finding them all to be credible. We will not second-guess the trial court's credibility determinations without clear and convincing evidence to the contrary, which this record does not contain. See King v. Anderson Cnty. , 419 S.W.3d 232, 246 (Tenn. 2013).

The Commissioner and the Deputy Commissioner provided testimony regarding TDOC's unsuccessful efforts to obtain pentobarbital for use in the lethal injection protocol. The trial court found that "they proceeded reasonably as department heads to delegate the task of investigating supplies of pentobarbital to a member of their staff." A PowerPoint presentation, introduced as part of trial exhibit 105, detailed those unsuccessful efforts. The trial court found "that trial exhibit 105 and the testimony of the TDOC officials establish that Tennessee does not have access to and is unable to obtain [pentobarbital] with ordinary transactional effort." Our review of this finding of fact is accompanied by a presumption of correctness, unless the preponderance of the evidence is otherwise. See Tenn. R. App. P. 13(d) ("Unless otherwise required by statute, review of findings of fact by the trial court in civil actions shall be de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise.").

The Plaintiffs assert that uncontroverted proof shows pentobarbital was available for purchase in 2017 and would still be good for use in executions in 2019 and 2020. They also contend that the Defendants have (1) a physician willing to write a prescription for pentobarbital, (2) a pharmacy and pharmacist with the proper licensing to obtain pentobarbital, and (3) two contracts with two different compounding pharmacists to compound pentobarbital for executions. None of this evidence is relevant, however, if pentobarbital is not now available. The Plaintiffs’ argument—that the Defendants acted in bad faith by choosing not to obtain pentobarbital when it was feasible and readily available—is totally inconsistent with the trial court's credibility determinations. We conclude that the evidence does not preponderate against the trial court's finding that Tennessee does not have access to and is unable to obtain pentobarbital with ordinary transactional effort for use in lethal injections.

In summary, we agree with the trial court's finding that pentobarbital—the only alternative method of execution that the Plaintiffs sufficiently pleaded—is not available for use in executions in Tennessee. Therefore, the Plaintiffs failed to carry their burden of showing availability of their proposed alternative method of execution, as required under the Glossip [v. Gross , 576 U.S. 863, 135 S.Ct. 2726, 192 L.Ed.2d 761 (2015),] standard set forth by the United States Supreme Court and recently adopted in West v. Schofield for state constitutional purposes. As we noted earlier, this requirement is an independent requirement, separate and apart from the requirement

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