15 F.4th 784
6th Cir.2021Background
- Middlebrooks was convicted of murder, ultimately resentenced to death; Tennessee adopted lethal injection as the default execution method in 2000.
- TDOC used a single-dose pentobarbital protocol (2013); in January 2018 TDOC adopted a three-drug protocol (midazolam, vecuronium, potassium chloride); pentobarbital protocol was eliminated July 5, 2018.
- In Abdur’Rahman (Tenn. 2018), state plaintiffs challenged the three-drug protocol; the Tennessee Supreme Court held they failed to prove pentobarbital was available to Tennessee, and rejected the Eighth Amendment challenge on that basis.
- Middlebrooks filed a federal § 1983 suit (Dec. 2019) asserting facial and as-applied Eighth Amendment challenges, proposing pentobarbital and nitrogen hypoxia as alternatives and relying on post-2018 developments (Bucklew, a May 2019 OLC opinion, federal/state pentobarbital use or import applications).
- The district court dismissed under res judicata; the Sixth Circuit affirmed dismissal of the as-applied claim (precluded/ripe earlier), reversed dismissal of the facial claim (plausible new facts about pentobarbital availability), and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preclusion of facial challenge (availability element) | Middlebrooks alleges post-Abdur’Rahman facts (federal pentobarbital purchases, OLC opinion, states obtaining import licenses, TN emails) showing pentobarbital is now available to Tennessee | Abdur’Rahman already decided availability; new facts are conclusory or insufficient; OLC has no legal effect; Sutton supports preclusion | Reversed: alleged post-2018 facts plausibly show pentobarbital availability and can overcome res judicata at the pleading stage |
| Effect of Bucklew on pleading burden | Bucklew permits pointing to well-established protocols in other states to satisfy availability pleading | Bucklew does not eliminate state-specific availability requirement | Court treated Bucklew as supportive that other states’ protocols can be pleaded as plausibly showing availability, but Bucklew alone is not dispositive |
| Ripeness of as-applied challenge based on mental/physical conditions | As-applied claim not ripe until execution is imminent; could not have been brought in Abdur’Rahman | Conditions and lethal injection were present earlier; claim could have been raised in Abdur’Rahman | Affirmed dismissal: as-applied claim was ripe in 2018 and is precluded by Abdur’Rahman |
| Legal significance of May 2019 OLC opinion and Cook tension | OLC authorizes importation and aids availability; supports new factual showing | OLC has no binding legal effect and conflicts with Cook; practical procurement obstacles remain | OLC is relevant to plausibility of allegations but does not, by itself, resolve preclusion; combined alleged facts suffice to plausibly plead availability |
Key Cases Cited
- Glossip v. Gross, 576 U.S. 863 (Eighth Amendment method-of-execution framework requiring feasible, readily implemented alternatives)
- Bucklew v. Precythe, 139 S. Ct. 1112 (an inmate may point to well-established protocols in other States as potential alternatives)
- Abdur’Rahman v. Parker, 558 S.W.3d 606 (Tenn. 2018) (Tennessee Supreme Court: plaintiffs failed to prove pentobarbital availability)
- West v. Schofield, 460 S.W.3d 113 (Tenn. 2015) (ripeness/justiciability principles and deference to official credibility)
- West v. Schofield, 468 S.W.3d 482 (Tenn. 2015) (ripeness analysis for execution-method claims)
- Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (Full Faith and Credit Act requires federal courts to give state judgments the same preclusive effect)
- Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (change-in-circumstances can permit reexamination of previously decided issues)
- Panetti v. Quarterman, 551 U.S. 930 (timing of competency claims; courts often wait until execution is imminent)
- Ford v. Wainwright, 477 U.S. 399 (it is unconstitutional to execute the insane)
- Ashcroft v. Iqbal, 556 U.S. 662 (Rule 12(b)(6) plausibility pleading standard)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (pleading must state a plausible claim to survive dismissal)