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Miller v. Parker

United States Court of Appeals, Sixth Circuit

December 3, 2018

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.

          Appeal 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.

         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.

          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 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).

         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 (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.

         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, 139 S.Ct. 216 (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 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).

         Accordingly, we AFFIRM the district court's judgment.

         DISSENT

          HELENE N. WHITE, Circuit ...


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