Miller v. Parker

• Decision Date: 03 December 2018
• Docket Number: No. 18-6222,18-6222
• Citation: 910 F.3d 259
• Parties: David E. MILLER ; Nicholas Todd Sutton; Stephen Michael West; Terry Lynn King, Plaintiffs-Appellants, v. Tony PARKER, Commissioner, Riverbend Maximum Security Institution, in His Official Capacity; Tony Mays, Warden, Riverbend Maximum Security Institution, in His Official Capacity, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

910 F.3d 259

David E. MILLER ; Nicholas Todd Sutton; Stephen Michael West; Terry Lynn King, Plaintiffs-Appellants,

v.Tony PARKER, Commissioner, Riverbend Maximum Security Institution, in His Official Capacity; Tony Mays, Warden, Riverbend Maximum Security Institution, in His Official Capacity, Defendants-Appellees.

No. 18-6222

United States Court of Appeals, Sixth Circuit.

Decided and Filed: December 3, 2018

ON BRIEF: Stephen M. Kissinger, FEDERAL PUBLIC DEFENDER, Knoxville, Tennessee, for Appellants. Jennifer L. Smith, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellees.

Before: SILER, GIBBONS, and WHITE, Circuit Judges.

The court delivered an order. WHITE, J. (pp. 262–66), delivered a separate dissenting opinion.

ORDER

David Miller, a Tennessee death penalty prisoner, appeals from the district court’s judgment denying his motion for a preliminary injunction. For the reasons set forth below, we affirm the district court’s judgment.

On November 2, 2018, Miller and other Tennessee capital prisoners sued Tony Parker, Commissioner of the Riverbend Maximum Security Institution, and Tony Mays, Warden of the Riverbend Maximum Security Institution, seeking injunctive relief preventing the defendants from implementing a recently-adopted lethal-injection protocol. On the same date, Miller moved for a preliminary injunction enjoining the defendants from carrying out his execution, currently scheduled for December 6, 2018. The district court subsequently denied the request for a preliminary injunction to the extent that it sought to prevent use of the lethal-injection protocol, Miller v. Parker , No. 3:18-CV-01234, 2018 WL 6003123 (M.D. Tenn. Nov. 15, 2018), and the court denied the plaintiffs’ motion for reconsideration. Miller v. Parker , No. 3:18-CV-01234, 2018 WL 6069181 (M.D. Tenn. Nov. 20, 2018). The plaintiffs appealed this decision, and Miller moved this court for a stay of his execution, which we denied. Miller v. Parker , No. 18-6222, 2018 WL 6191350 (6th Cir. Nov. 28, 2018) (order).

Miller also requested an expedited briefing schedule, which we granted, and the parties have completed briefing. Further, while this appeal has been pending, Miller elected to be executed by electrocution.

Upon review, we conclude that the district court properly denied Miller’s motion for a preliminary injunction. We review the district court's denial of a preliminary injunction for an abuse of discretion. McGirr v. Rehme , 891 F.3d 603, 610 (6th Cir. 2018). In considering whether to issue a preliminary injunction, courts balance four factors: (1) whether the movant has demonstrated a strong likelihood of success on the merits; (2) whether he will suffer irreparable injury in the absence of equitable relief; (3) whether the injunction will cause substantial harm to others; and (4) whether the public interest is best served by issuing the injunction. Jolivette v. Husted , 694 F.3d 760, 765 (6th Cir. 2012) ; Cooey v. Strickland , 604 F.3d 939, 943 (6th Cir. 2010). This standard is the same one that we used in reviewing Miller’s motion for a stay. See Miller , 2018 WL 6191350, at *1. As this court recently noted in another capital case, "[w]hile the obvious harm weighs in [the movant’s] favor, it is not dispositive when there is no likelihood of success on the merits of the challenge, and in execution protocol challenges, likelihood of success is often the determinative factor." Zagorski v. Haslam , 741 F. App'x 320, 321 (6th Cir. 2018), petition for cert. filed (No. 18-6530) (U.S. Nov. 1, 2018). We review Miller’s likelihood of success on the merits de novo. City of Pontiac Retired Emps. Ass’n v. Schimmel , 751 F.3d 427, 430 (6th Cir. 2014). In order to challenge successfully the State’s chosen method of execution, Miller must "establish that the method presents a risk that is sure or very likely to cause" serious pain and needless suffering. In re Ohio Execution Protocol , 860 F.3d 881, 886 (6th Cir.) (en banc) (emphasis in original), cert. denied , ––– U.S. ––––, 137 S.Ct. 2238, 198 L.Ed.2d 761 (2017).

In arguing that the district court erred in denying his motion for a preliminary injunction, Miller essentially raises the same arguments that he presented in his motion seeking a stay of execution. As with that motion, Miller has not shown a likelihood of success on the merits. Miller first contends that the State’s switch of its method of execution from electrocution to the current three-drug protocol violates his rights under the Ex Post Facto Clause. A change in a State’s method of execution will not constitute an ex post facto violation if the evidence shows the new method to be more humane. Weaver v. Graham , 450 U.S. 24, 32 n.17, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) ; Malloy v. South Carolina , 237 U.S. 180, 185, 35 S.Ct. 507, 59 L.Ed. 905 (1915). While Miller argues that Tennessee’s change in its method of execution potentially results in greater harm, we rejected this argument in our previous order and concluded that Miller had not shown that the new protocol is "sure or very likely" to be less humane than electrocution. See Miller , 2018 WL 6191350, at *1.

Miller next argues that Tennessee improperly compelled him to choose between two unconstitutional methods of execution, electrocution and the three-drug protocol. However, we also rejected this argument because this court has concluded that neither of these methods violates the Constitution. See id. at *1-2. In his brief, Miller relies on evidence and testimony presented in a state Chancery Court proceeding regarding the alleged ineffectiveness of large doses of midazolam as part of the lethal-injection protocol. However, this court has rejected a challenge to a similar Ohio lethal-injection protocol that, like the current Tennessee protocol, utilizes a large dose of the sedative midazolam as the first drug to render the prisoner unconscious. See In re Ohio Execution Protocol Litig. , 881 F.3d 447, 449-53 (6th Cir.), cert. denied sub nom ., Tibbetts v. Kasich , ––– U.S. ––––, 139 S.Ct. 216, ––– L.Ed.2d –––– (2018) ; In re Ohio Execution Protocol , 860 F.3d at 887-90.

Lastly, because Miller has elected to be executed by electrocution, he has waived any challenge to his execution by that method. See Zagorski , 741 F. App'x at 321. Regardless of that waiver, this court repeatedly has upheld the constitutionality of electrocution as a method of execution. See Williams v. Bagley , 380 F.3d 932, 965 (6th Cir. 2004) ; Smith v. Mitchell , 348 F.3d 177, 214 (6th Cir. 2003) ; Buell v. Mitchell , 274 F.3d 337, 370 (6th Cir. 2001).

Accordingly, we AFFIRM the district court’s judgment.

DISSENT

HELENE N. WHITE, Circuit Judge, dissenting.

I dissent for the same reasons set forth in the order denying Miller’s motion for stay of execution, 2018 WL 6193150, at *2-5 (6th Cir. Nov. 28, 2018) (White, J., dissenting). That dissenting statement is set forth below:

Because Miller has shown a substantial likelihood of success on the merits of his claims and it is beyond doubt that the other three injunction factors weigh strongly in his favor, I would grant the stay of execution to allow the district court to conduct an evidentiary hearing on the merits of Miller’s claims prior to his execution date, now set for December 6.

This appeal concerns the two alternative methods of execution currently used by the State of Tennessee: (1) lethal injection by a three-drug protocol using midazolam (a benzodiazepine sedative) followed by vecuronium bromide (a paralytic agent) and potassium chloride (a heart-stopping agent); and (2) electrocution. Under Tennessee law, "[f]or any person who commits an offense for which the person is sentenced to the punishment of death, the method for carrying out this sentence shall be by lethal injection." Tenn. Code Ann. § 40-23-114(a). But persons (like Miller) sentenced to death for offenses committed before January 1, 1999, may elect to be executed by electrocution. Tenn. Code Ann. § 40-23-114(b). Electrocution will also be utilized if lethal injection is held unconstitutional or if a drug essential to carrying out execution by lethal injection is unavailable. Tenn. Code Ann. § 40-23-114(e).

Miller’s 125-page complaint alleges and provides facts supporting that both electrocution and lethal injection using the three-drug protocol violate the Constitution and that the three-drug protocol is the harsher and less humane of the two methods of execution. Because, according to Miller, electrocution is cruel and unusual punishment, and execution using the three-drug protocol would cause even more suffering than electrocution, forcing him to choose between the two methods, as Tennessee has here, leaves him only a choice between two unconstitutional alternatives: be executed by electrocution in violation of the Eighth Amendment, or be executed by lethal injection in violation of the Ex Post Facto clause and the Eighth Amendment.¹ Assuming that electrocution violates the Eighth Amendment, and that lethal injection violates either the Ex Post Facto clause or the Eighth Amendment, Miller has a strong likelihood of success on his claim that Tennessee violated the Constitution by forcing him to choose between two unconstitutional alternatives. See, e.g. , Arizona v. Fulminante , 499 U.S. 279, 288, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (holding that a confession is coerced when the defendant was presented with a credible threat of legally unjustified violence from a government agent).

Thus, Miller’s likelihood of success on his coerced-waiver claim also depends on the likelihood of success on his claims that (1) electrocution is unconstitutional; and (2) lethal injection using the three-drug protocol violates either the Eighth Amendment or the Ex Post Facto clause.

Miller has shown a substantial likelihood of success on his claim that electrocution violates the Constitution as a cruel and unusual punishment. It is true that our earlier cases, as recently as 2004,

...