David E. Miller; Nicholas Todd Sutton; Stephen Michael West; Terry Lynn King, Plaintiffs-Appellants,
Tony Parker, Commissioner, Riverbend Maximum Security Institution, in his official capacity; Tony Mays, Warden, Riverbend Maximum Security Institution, in his official capacity, Defendants-Appellees.
from the United States District Court for the Middle District
of Tennessee at Nashville. No. 3:18-cv-01234-William Lynn
Campbell, Jr., District Judge.
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.
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.
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
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 Fed.Appx. 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, 137 S.Ct. 2238 (2017).
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 (1981); Malloy v. South Carolina, 237 U.S. 180,
185 (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.
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, 139 S.Ct. 216 (2018); In re Ohio Execution
Protocol, 860 F.3d at 887-90.
because Miller has elected to be executed by electrocution,
he has waived any challenge to his execution by that method.
See Zagorski, 741 Fed.Appx. 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).
we AFFIRM the district court's judgment.
N. WHITE, Circuit ...