Nichols v. Skrmetti et al

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
HAROLD WAYNE NICHOLS, 	)
)
Plaintiff, 	)
) 	CASE NO.: 3:25-cv-442
v. 	)
) 	JUDGE RICHARDSON
JONATHAN SKRMETTI, ET AL., 	)
)
Defendants. 	)
MEMORANDUM OPINION
Pending before the Court is a motion to dismiss (Doc. No. 27, “Motion”) filed by
Defendants Jonathan Skrmetti, Frank Strada, and Kenneth Nelsen (hereinafter, “Defendants”).1
Via the Motion, Defendants ask this Court to dismiss the complaint (Doc. No. 1, “Complaint”) of
Plaintiff, Harold Nichols (“Plaintiff”). In support of the Motion, Defendants filed a memorandum
of law (Doc. No. 28, “Memorandum”). Plaintiff filed a response to the Motion (Doc. No. 37,
“Response”). Defendants filed a reply. (Doc. No. 40, “Reply”).
For the reasons discussed herein, Defendants’ Motion will be GRANTED in its entirety.
PERTINENT ALLEGED FACTS2
1 As the Motion makes clear, the other persons named as defendants in this case, the “John Doe
Participants,” whoever they may actually be, are not “Defendants” (as defined herein as the defendants who
filed the Motion) and are not represented by counsel for Defendants. (Doc. No. 27 at 1 n.1).
2 The facts contained herein come from Plaintiff’s Complaint. (Doc. No. 1). For purposes of the instant
Motion and pursuant to the typical protocol for assessing motions under Federal Rule of Civil Procedure
12(b)(6), the Court accepts as true the facts in the Complaint, except to the extent that they are qualified
herein (as, for example, by “Plaintiff alleges” or “Plaintiff asserts”) to denote that they are not being taken
as true (because, for example, they are not really facts at all but legal conclusions or subjective verbal
characterizations of a given set of circumstances) and instead indicate what Plaintiff claims to be true.
Throughout this Memorandum Opinion, the Court forgoes any such qualifiers for any fact that it is
accepting as true, stating those facts without qualification, while remaining aware that any such alleged fact
ultimately may prove to be false.
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Plaintiff is currently on death row at Riverbend Maximum Security Institution (“RMSI”)
and is scheduled to be executed on December 11, 2025. (Doc. No. 1 at ¶¶ 1, 10). Although
Plaintiff’s Complaint says nothing about the nature or timing of the conviction that led to his death
sentence, the Court can and does take judicial notice that: (a) Plaintiff pled guilty to charges of
felony murder, aggravated rape, and first-degree burglary committed on September 30, 1988
against Karen Pulley;3 (b) Plaintiff was sentenced to death on the conviction for felony murder;
and (c) direct review of that conviction ended in 1995,4 and not years later when (or after) Nichols
v. State [Nichols II], 90 S.W.3d 576 (Tenn. 2002) (denying Plaintiff post-conviction relief), was
decided.
The Court notes that it has included herein, for context, some facts that relate primarily to claims that
Plaintiff is abandoning.
3 Plaintiff also was convicted of numerous other crimes, committed in December 1988 and January 1989
against four other victims, including aggravated rape and first-degree burglary. Nichols II, 90 S.W.3d at
583.
4 The Tennessee Supreme Court noted in Nichols II that it was in 1994 that it “affirmed the convictions and
the sentence of death on direct appeal.” Nichols II, 90 S.W.3d at 585 (citing State v. Nichols [Nichols I],
877 S.W.2d 722 (Tenn. 1994)). It is clear that after that affirmance, Plaintiff petitioned the United States
Supreme Court for a writ of certiorari and that that petition was denied on January 17, 1995. See Nichols v.
Tennessee, 115 S. Ct. 909 (1995). So direct review of Plaintiff’s convictions and death sentence (which
includes the U.S. Supreme Court’s consideration of Plaintiff’s petition for certiorari) concluded in 1995.
For some reason, Defendants maintain that “[Plaintiff’s] state court direct review ended in 2002,” when
Nichols II was decided. (Doc. No. 28 at 19) (citing Nichols II). But Nichols II was not a decision on direct
review, but rather on review of state post-conviction proceedings. As just noted, it was the 1995 denial of
Plaintiff’s petition for a writ of certiorari in connection with Nichols I that concluded direct review.
On the other hand, even if Defendants were correct that the direct review ended in 2002, that ultimately
would make no material difference here. The date of conclusion of direct review matters herein because it
is relevant to when the limitations period began running on Plaintiff’s Count III. As indicated below, on a
method-of-execution claim under Section 1983, if that date is later than the time when the particular method
of execution was adopted by the state, then that date is the date on which the limitations period begins to
run; otherwise, the limitations period begins to run when the particular method of execution is adopted by
the state. Here, it does not matter whether that date (the date of conclusion of direct review) was 1995 or
2002, because either date is so long ago that Plaintiff obviously cannot prevail unless he can instead use the
alternative (the date when the particular method of execution was adopted by the state) to show that the
limitations period began within one year prior to the filing of this action on April 18, 2025. As discussed
below, Plaintiff does seek to use this alternative and claims that the applicable date under this alternative
(which Plaintiff but not the Court pegs as the date of the adoption of the Revised Protocol) was within the
one-year limitations period.
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Tennessee intends to use a single drug pentobarbital 100 ml of a 50 mg/ml solution (a total of 5
grams) to execute Plaintiff. (Id. at ¶ 22)5. Pentobarbital causes flash (acute) pulmonary edema as
it enters the blood stream and passes through the lungs and burns the membranes of the lungs. (Id.
at ¶ 22(a)). Fluid then enters the lungs, causing a drowning sensation akin to waterboarding; the
drowning sensation is “one of the most powerful, excruciating feelings known to man.” (Id.; Doc.
No. 1-7 at 16). Pentobarbital can “cause extreme pain upon [] injection.” (Doc. No. 1 at ¶ 22(b)).
It also can “damage the veins in the body, causing the drug to leak into the surrounding tissues,”
causing “significant excruciating pain.” (Doc. No. 1-7 at 14–15). The Complaint not only asserts
that Tennessee’s chosen (default) method of execution—i.e., lethal injection of pentobarbital
alone—is cruel and unusual punishment in violation of the Eighth Amendment,6 but also raises
other alleged violations of Plaintiff’s constitutional rights in connection with his upcoming
execution, namely First Amendment rights, Fourteenth Amendment rights to due process and equal
protection, and supposedly implicated Fifth Amendment rights to due process.7 As relief, Plaintiff
5 When citing to a page in a document filed by one of the parties, the Court endeavors to cite to the page
number (“Page __ of __”) added by the Clerk’s Office as part of the pagination process associated with
Electronic Case Filing if such page number differs from the page number originally provided by the
author/filer of the document. In addition, where the Complaint is cited herein without including a paragraph
symbol, the citation is not to a paragraph number but rather to a page that contains the cited content outside
the boundaries of any paragraph.
6 The Eighth Amendment protects inmates serving sentences of imprisonment after conviction, as Plaintiff
is. See Richmond v. Huq, 885 F.3d 928 937 (6th Cir. 2018) (“The Eighth Amendment provides an inmate
the right to be free from cruel and unusual punishment.”). In the case of state actors like Defendants, Eighth
Amendment protections are applicable (when they are applicable) specifically by way of the Fourteenth
Amendment. See Crawford v. Tilley, 15 F.4th 752, 760 (6th Cir. 2021). In these situations, courts generally
speak in terms of “Eighth Amendment” protection without any reference (beyond an initial reference) to
the Fourteenth Amendment. The Court herein does likewise.
7 For reasons the Court cannot fathom, Plaintiff refers to the Fifth Amendment as a source of due process
rights implicated in this case. In just one example of this, Plaintiff asserts that he “is entitled to due process
and equal protection under the Fifth and Fourteenth Amendments to the United States Constitution and
Article I of the Tennessee Constitution.” (Doc. No. 1 at p. 3). However, the Court fails to see how the Fifth
Amendment would apply here. “[T]he Fifth Amendment applies to the federal government, not state or
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asks the Court to make a number of particular declarations and to “issue a permanent injunction
against use of the revised lethal injection protocol.” (Doc. No. 1 at pp. 56-58). The Complaint also
asserts that Defendants should be temporarily enjoined from executing Plaintiff pending final
resolution of the issues presented by the challenges to the lethal injection protocol in King v.
Strada, et al., No. 3:18-cv-01234 (M.D. Tenn.) (“King”) and Middlebrooks v. Strada, et al., No.
3:19-cv-01139 (M.D. Tenn.) (“Middlebrooks”), (id. at ¶¶ 103, 110), and Plaintiff has since filed a
motion for preliminary injunction seeking such relief (Doc. No. 47).
A. “Similarly Situated” Claim
As came to light amidst litigation in King, “Defendant’s history of error and malfeasance
regarding the Tennessee lethal injection protocol,” (Doc. No. 1 at ¶ 1111), includes:
• 	Attempting to acquire drugs for lethal injection from a veterinarian;
• 	Searching for other drug suppliers when one supplier restricted the sale of
their drugs for use in lethal injection;
• 	Exploring the possibility of using other drugs, including Ketamine, as a
replacement for the restricted lethal injection drugs;
local governments.” Mahan v. Shoupe, No. CIV. 2:15-00001, 2015 WL 4693026, at *2 (M.D. Tenn. Aug.
6, 2015) (quoting Myers v. Village of Alger, Ohio, 102 F. App’x 931, 933 (6th Cir. 2004). The Fifth
Amendment “cannot support a claim against state [or local] actors.” Buchanan v. Metz, 6 F.Supp.3d. 730,
757 n. 5 (E.D. Mich. 2014); see Scott v. Clay Cnty., Tenn., 205 F.3d 867, 873 n.8 (6th Cir. 2000) (“The
Fourteenth Amendment’s Due Process Clause restricts the activities of the states and their instrumentalities;
whereas the Fifth Amendment’s Due Process Clause circumscribes only the actions of the federal
government”). True, Plaintiff does assert violations of his rights under the Fourteenth Amendment, and
many rights in the Bill of Rights (the first ten Amendments) are deemed to be incorporated into the
Fourteenth Amendment; to this extent, a right found in the Bill of Rights (which is directly applicable only
to the federal government) is implicated by a Fourteenth Amendment claim (which can be brought only
against state actors and not federal actors). But the Court does not see how any of the Fourteenth
Amendment rights on which Plaintiff relies—i.e., the rights to equal protection of the laws and of due
process—are (or would need to be) incorporated into the Fourteenth Amendment from the Fifth
Amendment; those rights are all plainly stated in the Fourteenth Amendment itself.
Since Plaintiff brings claims only against state officials, the Fifth Amendment claim(s) must and will be
dismissed on this basis (alternatively to any other applicable basis for dismissal). That is to say, Plaintiff’s
counts—every one of which asserts (in a manner that, regrettably, effectively turns a single count into
multiple counts) violations of multiple provisions of law, at least one federal and one state, and most of
which assert violations of multiple federal constitutional amendments—will be dismissed from the outset
to the extent that they allege a violation of the Fifth Amendment. For the sake of simplicity and brevity, the
Court below omits any reference to the Fifth Amendment or Plaintiff’s claims thereunder.
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• 	Discussing ways to creatively compound the drugs to save the State of
Tennessee money;
• 	Failing to consult the Pharmacist about the lethal injection protocol. In fact,
former TDOC General Counsel Debbie Inglis drafted the protocol without
reviewing medical articles, talking to pharmacists, doctors, or other experts,
or consulting with other states;
• 	Regularly deviating from the lethal injection protocol;
• 	Failing to properly train the personnel enlisted to carry out lethal injection;
• 	Preparing expired drugs in the executions of Donnie Johnson and Billy Ray
Irick;
• 	Failing to follow written instructions related to the drugs used for execution;
• 	Personally transporting lethal injection drugs across state lines to RMSI;
• 	Utilizing a Pharmacist who was fined by a state board of pharmacy for
failing to ensure that pharmacy technicians under his supervision possessed
valid licenses;
• 	Failing to compound lethal injection drugs in accordance with United States
Pharmacopeia guidelines; and failing at least one test or not subjecting the
drugs to tests required by United States Pharmacopeia
• 	Failing to test for endotoxins in every batch of drugs;
• 	Failing to properly test for potency of lethal injection drugs;
• 	Failing to follow compounding recipes for lethal injection drugs;
• 	Receiving compounded lethal injection drugs prior to receiving test results
from a third-party laboratory;
• 	Failing to properly store lethal injection drugs according to the protocol;
and
• 	Failing to conduct biannual inventory of lethal injection drugs and failing
to dispose of expired drugs
(Doc. No. 1 at ¶ 13 & n.3).
On the afternoon of April 21, 2022—less than one hour before the scheduled execution of
Oscar Franklin Smith by lethal injection—Tennessee Governor Bill Lee issued a temporary
reprieve due to “an oversight in preparation.” (Doc. No. 1 at 2). This reprieve led to an independent
review (“Independent Review”) of Tennessee’s lethal injection protocol (ordered by Governor
Lee). (Id.; Doc. No. 1-2 at 1).
Shortly after Governor Lee’s order, the defendants in King and Middlebrooks submitted an
unopposed motion to stay the respective proceedings in those cases “until the conclusion of the
independent investigation that Governor Lee has ordered of the lethal injection process in
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Tennessee and the timely completion of related corrective action.” (Doc. Nos. 1 at 2; 1-3 at 4).
That motion to stay proceedings contemplated and proposed that upon its being granted, there
would go into effect an agreement (“Agreement”),8 which stated in pertinent part:
A motion to set King’s execution date will not be filed pursuant to Tenn. Sup. Ct.
R. 12(4)(A) until a judgment is entered by the district court in case number 3:18-
cv-01234 (M.D. Tenn.) or, in the event of an appeal from that judgment, until an
opinion is issued by a panel of the United States Court of Appeals for the Sixth
Circuit. . .
In the event Middlebrooks’s execution date is reset before the conclusion of a trial
or other disposition of his complaint in case number 3:19-cv01139 (M.D. Tenn.),
Defendants will not oppose a motion for stay of execution for Middlebrooks filed
in that district court case until a judgment is entered by the district court in that case
or, in the event of an appeal, a motion for stay of execution filed under the relevant
case number in the Sixth Circuit until an opinion is issued by a panel of the Sixth
Circuit. If such a motion for stay is denied, Defendants also agree to advocate for
another reprieve from the Governor until a judgment is entered by the district court
or, in the event of an appeal, an opinion has been issued by a panel of the Sixth
Circuit.
(Doc. Nos. 1 at 2-3; 1-3 at 3).
The Independent Review resulted in a report (“Independent Review report”) by the law
firm of Butler Snow, LLP dated December 13, 2022, which was filed on the docket in King (Case
No. 3:18-cv-1234, Doc. No. 225-1). (Doc. No. 1 at 11 n.23). The Independent Review report
provided: “the investigative findings are primarily based upon the information gleaned through
witness interviews as well as an extensive review of thousands of pages of documents and/or data.
While the interviews were very insightful, they further showed an absence of adequate expertise,
guidance, and counsel either enlisted by or provided to TDOC in connection with Tennessee’s
lethal injection process. Instead, TDOC operated in a task-oriented, tunnel-vision manner that
8 The Agreement (Doc. No. 1-3) was a single document that was dual captioned, i.e., captioned for both
King and Middlebrooks. It appears from the language of the Complaint that the same is true of the
unopposed motion, although the Court is unable to say for sure because the unopposed motion (unlike the
Agreement) was not attached as an exhibit to the Complaint.
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failed to appreciate the interwoven nature of the lethal injection process as a whole.” (Case No.
3:18-cv-1234, Doc. No. 225-1 at 51-52) (emphasis added).9
The Independent Review report also acknowledged the above-listed errors and identified
additional errors, including:
• 	The pharmacy that tested Tennessee’s lethal injection chemicals only tested
the chemicals for potency and sterility, not endotoxins, because the
pharmacy followed United States Pharmacopeia testing guidelines, not
Tennessee’s lethal injection protocol;
• 	The chemicals used in the execution of Billy Ray Irick in August 2018 were
not tested for endotoxins, and the Midazolam used during Irick’s execution
was not tested for potency;
• 	The chemicals to be used in the event that Edmund Zagorski opted for lethal
injection in November 2018 were not tested for endotoxins and failed
potency testing;
• 	The chemicals used in the May 2019 execution of Donnie Edward Johnson
were not tested for endotoxins;
• 	The chemicals to be used in the event that Stephen West opted for lethal
injection in August 2019 were not tested for endotoxins;
• 	The chemicals to be used in the event that Lee Hall opted for lethal injection
in December 2019 were not tested for endotoxins; and
• 	The chemicals to be used in the event that Nicholas Sutton opted for lethal
injection in February 2020 were not tested for endotoxins.
(Doc. No. 1 at ¶ 14).
Approximately 28 months after the release of the Independent Review report, this Court
(with the Honorable Waverly D. Crenshaw presiding) granted an unopposed stay of execution in
Middlebrooks, pursuant to the Agreement. (Doc. Nos. 1 at p. 3; 1-4).
As a person similarly situated to the plaintiffs in King and Middlebrooks (i.e., being a death
row inmate who is scheduled for execution), and invoking his due process and equal protection
under the Fourteenth Amendment to the United States Constitution and Article I of the Tennessee
9 The italicized words from this quote were quoted in the Complaint. (Doc. No. 1 at ¶15). To the extent that
the Court herein refers to content in the Independent Review report, the Court can and does take judicial
notice of the existence (though not the truth) of such content.
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Constitution, Plaintiff alleges that he is entitled to an injunction staying his execution pending
resolution of the lawsuits in King and Middlebrooks and the instant lawsuit. (Doc. No. 1 at pp. 3-
4).
B. Issues with the Revised Protocol, in General and as it relates to Plaintiff in
particular10
Effective January 8, 2025, Tennessee implemented a revised Lethal Injection Execution
Protocol (“Revised Protocol”), which prescribes the use of a single-drug protocol (using only
pentobarbital), in place of the former three-drug protocol (using sodium pentothal, pancuronium
bromide, and potassium chloride), to effectuate lethal injections. (Doc. Nos. 1-7 at 26; 28 at 7).
Plaintiff alleges that the Revised Protocol fails to ameliorate the deficiencies within the lethal
injection protocol as identified by the Independent Review. (Doc. No. 1 at ¶ 16).
Plaintiff also takes issue with the language of the Revised Protocol for being (in his view)
vague in that, for example, it vaguely describes safe transportation of the lethal injection chemicals
across state lines and safe storage of pentobarbital and vaguely refers to “quality assurance and
quality control testing.” (Id. at ¶¶ 25-27)). Plaintiff likewise takes issue with the Revised Protocol
being (in his view) subject to change “on the whim of the Commissioner ‘when deemed necessary
to effectuate the purpose’ of the [Revised Protocol].” (Id. at ¶ 20) (apparently quoting the Revised
10 A redacted version of the Revised Protocol was filed at Docket No. 28-1 as an attachment to Defendants’
Memorandum. The Revised Protocol can be considered in this Court’s review of the Motion because the
Revised Protocol is referred to in the Complaint and is central to Plaintiff’s claims. Surely, an unredacted
version conceivably could be more consistent with Plaintiff’s claims than the redacted version attached for
the Court’s review, which the Court will keep in mind in its assessment of the viability of the Complaint.
Notably, the Court does not accept as true any subjective verbal characterization regarding the Revised
Protocol (such as, for example, that it is “vague” in this sense or that sense). But the Court does accept as
true purely factual statements about the Revised Protocol’s contents—what it actually says—unless it is
contradicted by Doc. No. 28-1 and such contradiction plainly could not even conceivably be resolved by
viewing the unredacted version (i.e., it is plain from the redacted version that Plaintiff’s factual statements
about the contents of the Revised Protocol is just wrong, and that there is no chance that the wrongness is
actually illusory, or that the illusion would be revealed by removing the redactions). The Court does not
perceive any such contradictions.
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Protocol). Likewise, Plaintiff asserts that the Revised Protocol is “devoid of detail” because (as
the Court accepts as true) it fails to “state the source of the supplier, the procurement process or
method—whether legitimate or through the gray or black market, or whether the pentobarbital is
compounded or manufactured.” (Id. at ¶¶ 19, 24).
Moreover, Plaintiff highlights a few scheduling conflicts within the Revised Protocol as it
relates to his case in particular. First, the Revised Protocol requires Plaintiff to select his method
of execution thirty (30) days prior to his scheduled execution (which would be November 11,
2025), but an order from the Tennessee Supreme Court requires RMSI’s Warden to notify Plaintiff
of the method of execution no later than November 26, 2025.11 (Id. at ¶ 28; Doc. No. 1-6 at p. 2).
Per the Tennessee Supreme Court’s order, the RMSI Warden is to “notify Mr. Nichols no later than
November 26, 2025, of the method the Tennessee Department of Correction (TDOC) will use to
carry out the execution and any decision by the Commissioner of TDOC to rely upon the Capital
Punishment Enforcement Act. See Tenn. Code Ann. § 40-23-114,” (Doc. No. 1-6 at 2), whereas
the Revised Protocol provides no requirement that the warden notify the inmate of the method to
be used to carry out the execution.12 The issue, according to Plaintiff, is that the Revised Protocol
requires Plaintiff to select his method of execution (i.e., turn in his Affidavit for Method of
execution to the Warden 30 days before execution, or November 11, 2025): before the Warden has
informed Plaintiff whether Defendants have pentobarbital available for Plaintiff’s execution;
11 The Court does not perceive that any reason has been provided by either party as to why the Warden
would notify the inmate of any method of execution than lethal injection. In any event, the fact that the
Tenneessee Supreme Court’s order instructs the Warden to notify Plaintiff of his method of execution does
not appear to change the fact that lethal injection is the default method in Tennessee. Moreover, Plaintiff
neither makes an issue about the Warden’s responsibility to notify Plaintiff of the method of execution, nor
refutes that lethal injection is the default method.
12 The Revised Protocol only mentions a warden notifying an inmate in relation to “changes to the
conditions of confinement over the next 30 days” prior to the execution date. (Doc. No. 28-1 at 16, ¶ 5).
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before he has been told whether the pentobarbital has expired; and before he has been told whether
the pentobarbital has been tested. (Doc. No. 1 at ¶ 30; 28-1 at 15). Second, the Revised Protocol
allows an inmate to rescind his waiver of his right to carry out his execution by lethal injection13
up to fourteen (14) days before his execution date, which for Plaintiff means that he would have
to rescind his wavier no later than November 27, 2025, Thanksgiving Day. (Doc. No. 1 at ¶¶ 28,
29). According to Plaintiff, (i) he would have just one day (between November 26 and 27) between
learning the method of execution selected by the RMSI warden to decide whether to rescind his
waiver consider the Warden’s selection, if the Warden waited until the last day to notify Plaintiff;
and (ii) the Revised Protocol does not address the mechanics of how Plaintiff would withdraw his
waiver on the day his deadline expires, when his deadline to do so falls on a state holiday. (Id.).
The Revised Protocol also does not take into account any unique physical characteristics
of the condemned prisoner (here, of course, Plaintiff) that may affect the efficacy of, or the risk of
harm to that particular prisoner caused by, the Revised Protocol. (Id. at ¶ 54). In Plaintiff’s case,
13 As written at the top of the “Affidavit for Method of Execution” in the Revised Protocol:
Under Tennessee law, you have the right to have your execution carried out by lethal
injection. You also have the option of waiving this right, and choosing electrocution as the
method of your execution. The purpose of this affidavit is to allow you an opportunity to
either waive your right to have your execution carried out by lethal injection or to decline
to waive that right. Failure to complete this form will result in the execution being carried
out by lethal injection. You will not be given another opportunity to waive your right to
have your execution carried out by lethal injection. If you waive your right to have your
execution carried out by lethal injection, you may rescind that waiver by contacting the
Warden no later than 14 days before the date of the execution and signing a new affidavit
to that effect.
(Doc. No. 28-1 at 26) (emphasis in original). Put more simply, an inmate scheduled to be executed has the
right to select between the two available methods of execution in Tennessee (lethal injection with
pentobarbital or electrocution). The default method of execution is lethal injection, which an inmate can
waive so as to opt instead for execution by electrocution. If the inmate changes his mind regarding that
waiver—i.e., if the inmate wishes to “rescind” (i.e. take back) any waiver of being executed via lethal
injection—then he must contact the warden no later than 14 days before the date of the execution to “rescind
his wavier” and revert to the default method of lethal injection.
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those unique characteristics include (but are not limited to) his advanced age, lung disease and
scarring, obesity, fatty deposits on his liver, cholecystitis, and Type 2 diabetes (“Medical
Conditions”), and his Medical Conditions make it significantly more difficult to achieve and/or
maintain peripheral IV access on Plaintiff that is needed to ensure proper delivery of the
pentobarbital. (Id. at ¶¶ 46, 48). Plaintiff alleges that his Medical Conditions make it sure or very
likely that serious illness and needless suffering will occur as Defendants attempt to achieve
peripheral IV access on Plaintiff during the execution process and are unable to maintain peripheral
IV access on him, which will interfere with the proper delivery of the pentobarbital causing serious
illness and needless suffering. (Id. at ¶ 49). According to Plaintiff, “[i]mproper delivery of the
pentobarbital [generally], including, but not limited to, vein damage and leakage,14 presents a risk
that is certain or at least very likely to cause serious illness, needless suffering, and/or prolonged
death.” (Id. at ¶ 50). Moreover, Plaintiff’s Medical Conditions—as listed above—make it certain
or at least very likely that there is a substantial risk that due to the pentobarbital he will suffer flash
(acute) pulmonary edema, i.e., begin to suffocate and experience a drowning sensation, while he
remains aware or sensate. (Id. at ¶¶ 51, 80, 120).
Finally, Plaintiff alleges that the Revised Protocol did not undergo agency rulemaking as
prescribed in the Tennessee Uniform Administrative Procedures Act. (Id. at ¶ 17).
PLAINTIFF’S CLAIMS
On April 18, 2025, Plaintiff filed the Complaint to initiate the instant action. The Complaint
comprises eleven (11) counts, which the Court discusses below as thoroughly or briefly as
necessary. As for requested relief, the Complaint asks this Court to enjoin Defendants to enter an
14 Plaintiff does not clearly indicate what he means by “leakage.” Presumably, Plaintiff means here that
improper delivery of pentobarbital can lead to vein damage and leakage of the drug (i.e., not being
transported properly and directly in Plaintiff’s vein).
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agreement with Plaintiff (i.e., to stay Plaintiff’s execution pending outcome of litigation) like those
into which Defendants entered with the plaintiffs in King and Middlebrooks, or to issue a temporary
(i.e., preliminary) injunction preventing Defendants from executing 	Plaintiff prior to the
completion of the litigation in King, Middlebrooks, and the instant lawsuit. (Id. at p. 56).
Additionally, Plaintiff asks this Court to declare (among other things) that: Tennessee’s Revised
Protocol is unconstitutional under Tennessee Code Annotated § 29-14-101 et seq., Tennessee Code
Annotated § 4-5-101 et seq., Article I, §§ 2, 3, 8, 16, 17 of the Tennessee Constitution, Article VI,
§ 2 of the United States Constitution, and the Fourteenth Amendment to the United States
Constitution; as applied to Plaintiff, the Revised Protocol inflicts cruel and unusual punishment in
violation of the Eighth Amendment; the Revised Protocol violates the Tennessee Uniform
Administrative Procedures Act (“TUAPA”); and Tennessee’s secrecy laws and redaction of the
Revised Protocol violate the First Amendment to the United States Constitution. (Id. at pp. 56-58).
Plaintiff also seeks a permanent injunction against the use of the Revised Protocol. (Id. at p. 58).
LEGAL STANDARD
In all of their filings made in connection with the Motion, Defendants refer only once to
the rule(s) under which the Motion is made. There, Defendants indicate that they are moving under
Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. No. 28 at p. 12-
13). The former rule contemplates dismissal for lack of subject-matter jurisdiction over the
Plaintiff’s claims, and the latter rule contemplates dismissal due to the Plaintiff’s failure to state a
claim. Fed. R. Civ. P. 12(b)(1), (b)(6). The Court will discuss in turn each of these rules and the
standards and concepts associated with them.
Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994). In other words, federal courts “have only the power that is authorized
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by Article III of the Constitution and the statutes enacted by Congress pursuant thereto.” Bender
v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). Therefore, subject-matter jurisdiction
is a threshold issue that the Court must address and resolve prior to reaching the merits of the
case. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998); see also Fed. R. Civ. P.
12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court
must dismiss the action.”). “Moreover, ‘where subject matter jurisdiction is challenged under Rule
12(b)(1), . . . the plaintiff has the burden of proving jurisdiction in order to survive the motion.’”
Wayside Church v. Van Buren Cnty., 847 F.3d 812, 817 (6th Cir. 2017) (quoting Rogers v. Stratton
Indus., 798 F.2d 913, 915 (6th Cir. 1986)).
Rule 12(b)(1) motions fall into two categories: facial attacks and factual attacks. Id. at 816.
A facial attack is a challenge to the sufficiency of the pleading itself, requiring the Court to take
allegations in the complaint as true and construing those allegations in the light most favorable to
the non-moving party. See id. A factual attack, on the other hand, is a challenge to the factual
existence of subject-matter jurisdiction. See id. at 817. In considering whether jurisdiction has been
proved as a matter of fact, a trial court has wide discretion to allow affidavits, documents, and a
limited evidentiary hearing to resolve disputed jurisdictional facts. Ohio Nat’l Life Ins. Co. v.
United States, 922 F.2d 320, 325 (6th Cir. 1990). In evaluating a factual attack, no presumptive
truthfulness applies to the factual allegations, and the court is free to weigh the evidence to arrive
at its decision of whether it has power to hear the case. See United States v. Chattanooga-Hamilton
Cnty. Hosp. Auth., 782 F.3d 260, 265 (6th Cir. 2015).
Regrettably, Defendants do not make clear what aspect of the Motion they view as
implicating Rule 12(b)(1), so the Court was left to figure that out for itself. As far as the Court can
tell, the Motion implicates Rule 12(b)(1) only to the extent that it challenges (in part) Plaintiff’s
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standing, which is a question of subject-matter jurisdiction. State by & through Tennessee Gen.
Assembly v. United States Dep't of State, 931 F.3d 499, 507 (6th Cir. 2019) (“Standing is a
jurisdictional requirement. If no plaintiff has standing, then the court lacks subject-matter
jurisdiction.”) (citation omitted). And although Defendants indicate that their challenges to
standing are factual attacks, (Doc. No. 28 at 12-13, 26 at n.6), the Court perceives that all such
challenges are actually facial attacks and thus accepts as true all of Plaintiff’s factual allegations
that bear on standing.
As indicated below, the Motion challenges Plaintiff’s standing in two ways. First, the
Motion challenges Plaintiff’s standing to sue Attorney General Skrmetti in particular. (Doc. No.
28 at 17). Second, the Motion challenges Counts V, VI, VII and VIII based on an alleged lack of
“ripeness,” (Doc. No. 28 at 25), which in recent times has been recognized as not a stand-alone
ground for challenging subject-matter jurisdiction but rather merely one aspect (or at least a
potential aspect, depending on the case at issue) of a challenge based on an alleged lack of standing.
Kiser v. Reitz, 765 F.3d 601, 606 (6th Cir. 2014)
When reviewing a motion to dismiss for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6), the Court must take all factual allegations in the Complaint as true.15 Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). A complaint that survives a motion to dismiss under Rule
12(b)(6) must contain sufficient allegations of factual matter, that when accepted as true, state a
facially plausible claim. Id. Facially plausible claims are those that have sufficient factual content
such that a court may draw the reasonable inference that the defendant is liable for the misconduct
alleged. Id. Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, will not suffice. Id.
15 The Court has done exactly that when discussing the material factual allegations in the Complaint, as
indicated above.
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On the other hand, well-pled factual allegations allow the court to assume their veracity
and then determine whether they plausibly give rise to an entitlement of relief. Id. at 679. A legal
conclusion, including one couched as a factual allegation, need not be accepted as true on a motion
to dismiss, nor are mere recitations of the elements of a cause of action sufficient. Id.; Fritz v.
Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010) (cited in Abriq v. Hall, 295 F. Supp.
3d 874, 877 (M.D. Tenn. 2018)). Moreover, factual allegations that are merely consistent with the
defendant’s liability do not satisfy the plaintiff’s burden, as mere consistency does not establish
the plausibility of entitlement to relief even if it supports the possibility of relief. Iqbal, 556 U.S.
at 678.
In determining whether a complaint is sufficient under the standards of Iqbal and its
predecessor and complementary case, Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), it may be
appropriate to “begin [the] analysis by identifying the allegations in the complaint that are not
entitled to the assumption of truth.” Iqbal, 556 U.S. at 680. This can be crucial, as no such
allegations count toward the plaintiff’s goal of reaching plausibility of relief, including any “bare
assertions,” formulaic recitation of the elements, and “conclusory” or “bald” allegations. Id. at
681. Then, the question is whether the remaining allegations plausibly suggest an entitlement to
relief. Id. If not, the pleading fails to meet the standard of Federal Rule of Civil Procedure 8 and
must be dismissed pursuant to Rule 12(b)(6). Id. at 683.
In general, matters outside the pleadings may not be considered in ruling on a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6) unless the motion is converted to one for
summary judgment under Rule 56. Fed. R. Civ. P. 12(d). When a document is referred to in the
pleadings and is central to plaintiff’s claims, it may be considered without converting a motion to
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dismiss into one for summary judgment. Doe v. Ohio State Univ., 219 F. Supp. 3d 645, 652-653
(S.D. Ohio 2016); Blanch v. Trans Union, LLC, 333 F. Supp. 3d 789, 791-792 (M.D. Tenn. 2018).
As an initial matter, as announced in the Response, Plaintiff stipulates to dismissal without
prejudice of Counts V, VI, VII, and VIII. (Doc. No. 37 at 23-24). Accordingly, these counts will
be dismissed without prejudice, and therefore the Court will not delve into Counts V, VI, VII, and
VIII.
Additionally, the Court finds that Count II must be dismissed. Count II lays out grounds
only for an injunction (albeit while inaptly invoking the Declaratory Judgment Act, 28 U.S.C. §
2201 et seq., which does not provide an injunctive remedy), which “is an equitable remedy, not an
independent cause of action.” Reschke v. CitiMortgage, Inc., No. 11-12639, 2013 WL 625755, at
*5 (E.D. Mich. Feb. 20, 2013) (quoting Terlecki v. Stewart, 278 Mich. App. 644, 663, 754 N.W.2d
899 (2008)). See also Morrison v. Wells Fargo Bank, N.A., No. 4:18-CV-2873, 2019 WL 885701,
at *3 (S.D. Tex. Feb. 1, 2019), report and recommendation adopted, No. 4:18-CV-2873, 2019 WL
859781 (S.D. Tex. Feb. 22, 2019) (citing Ballard v. Ditech Fin. LLC, No. CV H-17-2159, 2018
WL 4103228, at *4 (S.D. Tex. Aug. 8, 2018)). Therefore, Count II will be dismissed because it
fails to state a claim for relief (as opposed to stating grounds for a particular remedy based on other
claims for relief).
Accordingly, the remaining pending claims are as follows: (1) Count I, seeking an
“[i]Injunction under 28 U.S.C. §§ 2201–02 for violations of the . . . Due Process and Equal
Protection Clauses of the Fourteenth Amendment and Article I of the Tennessee Constitution”;16
16 	The invocation here under 28 U.S.C. §2201-02 is off the mark, as those statutes (the Declaratory
Judgment Act) provide for the remedy of a judicial declaration, not an injunction. See Perez v. Ledesma,
401 U.S. 82, 125–26 (1971) (Brennan, J., concurring in part) (noting that “a declaratory judgment . . . is a
much milder form of relief than an injunction.”).
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(2) Count III, which asserts that the Revised Protocol “is unconstitutional under the Eighth
Amendment to the United States Constitution, 42 U.S.C. § 1983, and Article I of the Tennessee
Constitution”;17 (3) Count IV, which asserts that the Revised Protocol “as applied to Plaintiff is
unconstitutional under the Eighth Amendment to the United States Constitution and Article I of
the Tennessee Constitution”; (4) Count IX, which asserts that (a) “[r]equiring selection of
execution by electrocution violates the Plaintiff’s rights under the First,…Eighth, and Fourteenth
Amendments to the United States Constitution”, and (b) “execution by electrocution constitutes
cruel and unusual punishment in violation of the Eighth Amendment to the United States
Constitution”; (5) Count X, which asserts that “Tennessee’s Secrecy Law violates the First
Amendment, the Due Process Clauses of the Fourteenth Amendment, and the Equal Protection
Clause of the Fourteenth Amendment to the United States Constitution and Article I of the
Tennessee Constitution, and Tennessee Code Annotated § 10-7-501 et seq; and (6) Count XI,
which asserts that the Revised Protocol “violates the Tennessee Uniform Administrative
Procedures Act, the Fourteenth Amendment to the United States Constitution, and Article I of the
Tennessee Constitution.” (Doc. No. 1).
The Court will now address each of the remaining Counts separately in turn below.
DISCUSSION
(A) Plaintiff is not constitutionally entitled to the same agreement and access to the
Revised Protocol as the plaintiffs in King and Middlebrooks (Count I).
17 Plaintiff’s reference here to a “violation” of Section 1983 is inapt, because Section 1983 provides only
remedies for violations of federal law and (unsurprisingly, since it is a statute rather than a constitutional
provision) sets forth absolutely no standards for what is or is not unconstitutional. Indeed, it creates no
substantive rights (of any kind) and thus substantive rights that could be “violated.” Flint v. Kentucky Dep't
of Corr., 270 F.3d 340, 351 (6th Cir. 2001) (noting that Section 1983 “creates no substantive rights, but
merely provides remedies for deprivations of rights established elsewhere.”). So the Court will not analyze
whether the revised protocol “violates” Section 1983 in particular.
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The Court begins its analysis by addressing Defendants’ skeletal argument that Defendant
Skrmetti (who is a defendant with respect to Count I and only Count I)18 must be dismissed because
of a lack of standing to sue him and because he enjoys sovereign immunity. In their briefing, all
that Defendants say in connection with that argument is this, from their Memorandum:
Plaintiff only alleges that General Skrmetti entered the King/Middlebrooks
agreement and has refused to enter a similar one with Plaintiff. (Dkt. 1, ¶ 2.)
Plaintiff cannot establish standing against General Skrmetti or evade his sovereign
immunity on any other claim. Doe v. Lee, 102 F.4th 330, 335 (6th Cir. 2024); Block
v. Canepa, 74 F.4th 400, 406 (6th Cir. 2023).
(Doc. No. 28 at 17).19 In his response, Plaintiff addressed only standing and not sovereign
immunity. 	Regarding standing, Plaintiff stated only, “Defendant Skrmetti, through his agents,
successors, and assigns, is a party to the [Agreement] and is therefore a necessary party here.”20
(Doc. No. 37 at 14 n.8). The Court perceives that Plaintiff’s argument here is suspect (due to being
just as underdeveloped as Defendants’ argument), but it is colorable. And Defendants undertook
no effort to rebut that argument in their Reply. Ultimately, the Court is unpersuaded that Plaintiff
lacks standing to sue Defendant Skrmetti. As for the argument that Defendant Skrmetti is shielded
by sovereign immunity, which is not necessarily a matter of subject-matter jurisdiction, the Court
is likewise unpersuaded. Any defendant who is serious about establishing sovereign immunity in
18 At least, that is Defendants’ take on the Complaint. (Doc. No. 28 at 17). Plaintiff does not disagree with
that assessment, and this assessment does have a basis considering what the Complaint does and does not
say about Defendant Skrmetti. Therefore, the Court accepts that assessment and for present purposes treats
Defendant Skrmetti as a defendant only with respect to Count I.
19 Notably, Defendants’ challenge here to standing is made only with respect to Defendant Skrmetti;
Defendants do not challenge standing here with respect to any other Defendant. This approach is
permissible because “standing is defendant-specific.” Ashe v. Hargett, No. 3:23-CV-01256, 2024 WL
923771, at *5 (M.D. Tenn. Mar. 4, 2024) (citing Universal Life Church Monastery Storehouse v. Nabors,
35 F.4th 1021, 1031 (6th Cir. 2022)).
20 The Agreement was signed by Robert W. Mitchell as a representative of the “Tennessee Attorney
General’s Office,” counsel for defendants in the King and Middlebrooks cases. (Doc. No. 1-3 at 5).
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a case like this one, which—especially given the kind of injunctive relief requested—raises the
possibility of an exception to sovereign immunity under the well-known principles of Ex Parte
Young, 209 U.S. 123 (1908),21 needs to do substantially more than what Defendants did in their
briefing. And so the Court declines to dismiss Defendant Skrmetti based on sovereign immunity.
Turning to the merits of Count I, Plaintiff argues that by giving the plaintiffs in King and
Middlebrooks the benefit of the Agreement (i.e., not opposing a stay of their execution due to
pending litigation), but not giving the same to other similarly situated persons on death row in the
custody of TDOC (such as Plaintiff), Defendants have violated Plaintiff’s rights under the
Fourteenth Amendment to the United States Constitution.22 (Doc. No. 1 at ¶ 95). In their
Memorandum, Defendants argue that “[Plaintiff] has no constitutional right to force a litigation
position, 	particularly 	where rational 	distinctions 	exist 	between 	his 	suit 	and 	the suits of
King/Middlebrooks.”23 (Doc. No. 28 at p. 14)
21 “[T]he Supreme Court announced an exception to Eleventh Amendment sovereign immunity in Ex parte
Young for claims for injunctive relief against individual state officials in their official capacities.” Diaz v.
Michigan Dep’t of Corr., 703 F.3d 956, 964 (6th Cir. 2013) “In order to fall within the Ex parte Young
exception, a claim must seek prospective relief to end a continuing violation of federal law.” Id. It is far
from self-evident that this exception would not apply to the claim in Count I against Defendant Skrmetti,
and Defendants have done absolutely nothing to show that it does not apply.
22 Notably, what Plaintiff does not allege is that entering into the Agreement (with the plaintiffs in King and
Middlebrooks) is unconstitutional, or that Defendants have refused to enter into the Agreement with
Plaintiff for some nefarious reason.
23 Alternatively, Defendants argue that that “[e]ven if [Plaintiff] were similarly situated, his equal-protection
claim still fails. The Supreme Court has recognized that ‘[t]here are some forms of state action . . . which
by their nature involve discretionary decisionmaking [sic] based on a vast array of subjective, individualized
assessments.’” (Doc. No. 28 at 15) (quoting Engquist v. Oregon Dep’t of Agr., 553 U.S. 591, 604 (2008)).
The Court realizes that the Supreme Court concluded in Engquist that there may be certain “forms of state
action . . . which by their nature involve discretionary decisionmaking [sic] based on a vast array of
subjective, individualized assessments,” just as Defendants here contend. Engquist, 553 U.S. at 603.
However, the Supreme Court also stated in Engquist that “[w]hen those who appear similarly situated are
nevertheless treated differently, the Equal Protection Clause requires at least a rational reason for the
difference, to ensure that all persons subject to legislation or regulation are indeed being “treated alike,
under like circumstances and conditions.” Id. Thus, when it appears that an individual is being singled out
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The Equal Protection Clause provides that “[n]o State shall . . . deny to any person within
its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.4. Its purpose “is to
secure 	every 	person 	within 	the 	state’s 	jurisdiction 	against 	intentional 	and 	arbitrary
discrimination[.]” Sunday Lake Iron Co. v. Wakefield Twp., 247 U.S. 350, 352 (1918). It prohibits
governmental discrimination that “burdens a fundamental right, targets a suspect class, or
intentionally treats one differently than others similarly situated without any rational basis for the
difference.” TriHealth, Inc. v. Bd. of Comm’rs, 430 F.3d 783, 788 (6th Cir. 2005) (citation
omitted).
Defendants characterize Plaintiff’s equal protection claim as one based on a “class-of-one”
theory. (Doc. No. 28 at 14). A class-of-one theory describes the situation where a plaintiff brings
an equal protection claim alleging some sort of discrimination against him or her as an individual;
this is to be contrasted with the standard theory for an equal protection claim, where a plaintiff
alleges discrimination against him or her based on his or her status as a member of a particular
protected class (historically, a particular racial group or sex). See William D. Araiza, Flunking the
Class-of-One / Failing Equal Protection, 55 Wm. & Mary L. Rev. 435, 438 (2013). The idea
behind the term “class of one” is that the plaintiff relying on the theory is going outside the standard
theory (which involves viewing the plaintiff as part of a class rather than solely as an individual
person) unless one perceives of the plaintiff alone as comprising a class; this is relevant because,
as discussed below, a plaintiff going this non-standard route bears a non-standard (higher) burden
than one going the standard route.
by the government, the specter of arbitrary classification is fairly raised, and the Equal Protection Clause
requires a “rational basis for the difference in treatment.” Id. (quoting Vill. of Willowbrook v. Olech, 528
U.S. 562, 564 (2000)). Another way of putting it is to say that even where discretionary decisionmaking is
involved, the discretion can be abused if there is no rational basis for the differential treatment that results
from the decisionmaking. So, Defendants cannot erase Plaintiff’s Equal Protection claim simply by
suggesting that the complained-of state actions in this case amount to “discretionary decisionmaking.”
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Plaintiff does not expressly state in his Complaint that his equal-protection claim is based
on a class-of-one theory. However, in his Response, Plaintiff does not challenge Defendants’ claim
that it is. (Doc. No. 37 at 6, 10). And it is clear to the Court that is; Plaintiff plainly bases his equal-
protection claim on a class-of-one theory. As Defendants point out, Plaintiff did not plead, or make
any factual allegations to suggest, that he is a member of a protected group (or, for that matter, that
he was discriminated against based on his membership in that class).
Plaintiff “must overcome a ‘heavy burden’ to prevail based on the class-of-one theory.”
Project Reflect, Inc. v. Metro. Nashville Bd. of Pub. Educ., 947 F. Supp. 2d 868, 881 (M.D. Tenn.
2013) (quoting Loesel v. City of Frankenmuth, 692 F.3d 452, 462 (6th Cir. 2012) (citing TriHealth,
Inc. v. Bd. of Comm’rs, Hamilton Cnty., Ohio, 430 F.3d 783, 791 (6th Cir. 2005))). Plaintiffs
bringing a class-of-one theory
must show that they were treated differently than those similarly situated in all
material respects. In addition, they must show that the adverse treatment they
experienced was so unrelated to the achievement of any combination of legitimate
purposes that the court can only conclude that the government’s actions were
irrational. This showing is made either by negativing every conceivable reason for
the government’s actions or by demonstrating that the actions were motivated by
animus or ill-will.
Id. (internal citation omitted) (emphasis added). Put more simply, to succeed under a class-of-one
theory, Plaintiff must show that (1) he has “been intentionally treated differently from others
similarly situated” and (2) “there is no rational basis for the difference in treatment.” United States
v. Green, 654 F.3d 637, 651 (6th Cir. 2011) (quoting Vill. of Willowbrook v. Olech, 528 U.S. 562,
564 (2000)). Regarding the first of these requirements, “Plaintiffs alleging class-of-one equal
protection claims do not need to identify specific examples of similarly situated persons in their
complaints.” Capra v. Cook Cnty. Bd. of Review, 733 F.3d 705, 717 (7th Cir. 2013); see Geinosky
v. City of Chicago, 675 F.3d 743, 748 n. 3 (7th Cir. 2012) (“Even in a case where a plaintiff would
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need to identify a similarly situated person to prove his case, . . . we see no basis for requiring the
plaintiff to identify the person in the complaint.”) (emphasis added). But in any event, Plaintiff
does allege that he is similarly situated to two particular inmates, who sit on death row with
pending litigation and received the benefit of Defendants agreeing not to oppose a motion to stay
their respective executions, and so the first element of a class-of-one claim is satisfied here.
On the second element, however, Plaintiff falls short. There is no allegation in the
Complaint that Defendants lack a rational basis for not entering into the Agreement with Plaintiff.
And still less is there any factual matter in the Complaint that plausibly suggest the lack of a
rational basis. Rather, Plaintiff’s Complaint merely alleges that he did not receive (and wishes to
receive) the benefit of the Agreement into which Defendants entered with the plaintiffs in King
and Middlebrooks because he “is a similarly situated person to the plaintiffs in King and
Middlebrooks.”24 (Doc. No. 1 at ¶¶ 92, 93). To reiterate, the quoted part of this allegation plausibly
24 As noted, Plaintiff did not address the lack of a rational basis in the Complaint. Instead, the first time
Plaintiff discusses a lack of rational basis is in his Response, after Defendants in their Memorandum
provided their basis for not entering the Agreement with Plaintiff as follows:
The State [of Tennessee] entered into the King/Middlebrooks agreement in a context
unique to the litigation of those consolidated cases. At the time of the King/Middlebrooks
agreement, Defendants did not know (1) the duration of Governor Lee’s pause on
executions, (2) the results of the independent investigation, (3) whether and to what extent
the execution protocol would be amended, (4) what new staff, training, or resources might
be needed to implement any changes to the protocol, and (5) what legal challenges a new
protocol might face. But Defendants have answers to those questions now. And in
King/Middlebrooks, Defendants faced the pressure of continued litigation and potentially
intrusive discovery over a protocol that might never have been used again could they not
reach an agreement on a stay.
(Doc. No. 28 at 15). Notably, the Court does not accept Defendants’ factual assertions (regarding what
Defendants did not previously know) underlying their purported rational basis; such acceptance would be
inappropriate on the instant Motion. The Court likewise does not accept as true Defendants’ conclusion that
their purported basis is in fact rational as Defendants claim. That is not to say that the Court begrudges
Defendants making these factual assertions or offering this conclusion regarding rational basis; Defendants
may have provided their purported rational basis for not entering into the Agreement with Plaintiff (and the
supposed facts underlying that rational basis) because they knew that Plaintiff is obligated to show a lack
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suggests the first element for a claim based on a “class-of-one” theory, but nothing about this
allegation plausibly suggest the existence of the second element.
In summary, Plaintiff failed to plead a viable “class-of-one” theory because—although he
is similarly situated to King and Middlebrooks—he did not allege in his Complaint any factual
matter to support the notion that Defendants have no rational basis for entering into the Agreement
with King and Middlebrooks, but not other inmates, including Plaintiff. Therefore, the Court will
grant the Motion as to Count I.
of a rational basis as part of a “class-of-one” theory. And it is fair for the Court treat Defendants’ above
quoted explanation as highlighting the legally valid principle that the Court is not to assume that there is no
rational basis.
In his Response, Plaintiff argues
[t]here is no conceivable basis that rationally supports the Defendants’ decision to allow
some prisoners the ability to challenge the revised lethal injection protocol, and other
prisoners not to do so.…Defendants here have deliberately singled out two prisoners as
deserving of the right to challenge the revised lethal injection protocol, while the rest are
denied that right, or are forced to do so under the threat of execution. Stated another way,
granting Mr. Nichols “mere access to the courthouse doors does not by itself assure a proper
functioning of the adversary process.”
(Doc. No. 37 at 9). Plaintiff conceivably could complain that the reason he did not say anything in the
Complaint about Defendants’ lack of rational basis is that he did not know what rational basis Defendants
claimed to have had, and therefore, could not very well show something of which he was unaware. But
even if assertions in the Response (as opposed to in the Complaint) could be used in an attempt to plausibly
suggest a lack of rational basis on the part of Defendants, the attempt would fail because the above-quoted
assertions (except for the last sentence, which is accurate as far as it goes but does not really get Plaintiff
anywhere) are wholly conclusory. Moreover, as shown above, Defendants teed up multiple asserted facts
to illustrate the existence of a rational basis for their decision to enter the Agreement with King and
Middlebrook but not Plaintiff, and yet Plaintiff responded to none of these asserted facts in his Response.
Defendants contend that Plaintiff’s actual argument is that Defendants are treating King and
Middlebrooks differently not only from him, but also from the other forty-two inmates on death row
(including Plaintiff). (Doc. No. 40 at 1-2). The Court agrees. In what was (as far as the Complaint indicates)
an exception to the treatment generally afforded death-row inmates, two death-row inmates received the
benefit of an agreement with the State that is not normally extended to inmates on death row; the Court
concludes that this does not create an equal protection violation. Ross Learning, Inc. v. Riley, 960 F. Supp.
1238, 1245 (E.D. Mich. 1997) (“Carving out exceptions to generally applied policies is not enough to raise
an equal protection claim”). “The Equal Protection Clause does not promise equal results to all. Instead, it
provides that the government cannot discriminate against a person on an impermissible basis.” Id.
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(B) Plaintiff’s General Allegation That the Lethal Injection Execution Method in
Tennessee is Unconstitutional is Time Barred (Count III).
Plaintiff asserts in Count III that “Tennessee’s lethal injection protocol is unconstitutional
because the infliction of any punishment that causes a substantial and unjustifiable risk of serious
pain and needless suffering is cruel and unusual punishment under the original meaning of the
Eighth Amendment.” (Doc. No. 1 at ¶ 116).
Early in Count III, Plaintiff asserts that “[e]xecution by poisoning is unconstitutional
because it was not a method of execution at the founding of our country or when Tennessee joined
the Union,” and “[e]volving standards of decency do not permit the adoption of a method of
execution considered barbarous at the founding of our country.” (Id. at ¶ 119). Understandably
enough, Defendants clearly took this to mean that Plaintiff was challenging the constitutionality
of lethal injection generally. (Doc. No. 28 at 18). Despite this assertion, it is apparent from Count
III as a whole (and from Plaintiff’s Response) that Plaintiff actually is challenging not the
constitutionality of lethal injection generally, but rather the constitutionality (generally, rather than
as applied to him)25 of execution via single drug pentobarbital in particular.26
As to the challenge that he is making, Plaintiff alleges (and the Court accepts as true) that
pentobarbital causes flash (acute) pulmonary edema as it enters the blood stream and passes
25 Plaintiff makes clear in his Response that this challenge is general (i.e., “facial”) rather than as applied.
(Doc. No. 37 at 14). His as-applied challenge is set forth in Count IV.
26 It is equally apparent that if Plaintiff were challenging the constitutionality of lethal injection generally,
such a challenge would be time-barred because (consistent with the limitations analysis below regarding
the untimeliness of Plaintiff’s challenge to lethal injection via single drug pentobarbital in particular), a
claim of unconstitutionality of lethal injection generally would have accrued many years too early to have
been timely brought in the instant action. And even if considered on the merits, such a challenge would
have failed. See Adams v. Bradshaw, 826 F.3d 306, 318 (6th Cir. 2016) (noting that “lethal injection does
not violate the Constitution”) (citing Scott v. Houk, 760 F.3d 497, 512 (6th Cir. 2014)).
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through the lungs and burns the membranes of the lungs,27 (Id. at ¶ 22(a)), and that when fluid
enters the lungs it causes a drowning sensation akin to waterboarding—“one of the most powerful,
excruciating feelings known to man.” (Id.; Doc. No. 1-7).
Defendants contend that a general complaint by Plaintiff concerning the constitutionality
of lethal injection is time-barred based on the applicable statute of limitations. (Doc. No. 28 at 18).
The Court agrees, for the reasons set forth in a footnote above. However, since Plaintiff’s challenge
in Count III is to the constitutionality of lethal injection by single drug pentobarbital in particular,
the Court will assess whether that challenge is time-barred—an assessment that largely (though
not completely) tracks the limitations analysis that would be applicable to a challenge to the
constitutionality of lethal injection generally.
27 For this allegation, Plaintiff relies on the “Review of the Federal Execution Protocol Addendum and
Manner of Execution.” (Doc. No. 1-7). True, that pamphlet provides that “some medical experts have
concluded that the use of pentobarbital may risk inflicting painful pulmonary edema,” but the part of the
pamphlet from which that excerpt is taken itself casts doubt on the notion that the risk of painful pulmonary
edema is a sufficient basis for relief. Specifically, referring to a July 2021 memorandum instituting a (since-
revoked) moratorium on federal executions pending the Department of Justice’s (Department) review of
certain policies and procedures, the pamphlet states:
Regarding the review of the federal execution protocol addendum, which provides that an
injection of a single drug – pentobarbital – is the sole manner of federal execution,
memorandum stated in part:
Although 	some 	medical 	experts 	have 	concluded 	that 	the 	use 	of
pentobarbital may risk inflicting painful pulmonary edema, the Supreme
Court found that this risk was insufficient “to justify last-minute
intervention by a Federal Court” shortly before an execution was
scheduled to occur. Barr v. Lee, 140 S. Ct. 2590, 2591 (2020) (per curiam).
A risk need not meet the Court’s high threshold for such relief, or violate
the 	Eighth 	Amendment, 	to 	raise 	important 	questions 	about 	our
responsibility to treat individuals humanely and avoid unnecessary pain
and suffering.
(Doc. No. 1-7 at 3). The quoted portion of Barr indicates that the risk of pulmonary edema is not (or at least
is not necessarily) sufficient to justify “last-minute” relief, and as touched on below Barr also raises serious
questions as to whether such risk is sufficient to justify relief that is not “last-minute.”
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“The statute of limitations applicable to a § 1983 action is the state statute of limitations
applicable to personal injury actions under the law of the state in which the § 1983 claim arises.”
Eidson v. Tenn. Dep’t of Children’s Servs., 510 F.3d 631, 634 (6th Cir. 2007). In Tennessee,
actions under 42 U.S.C. § 1983 are restricted by Tennessee Code Annotated § 28-3-104(a), which
is “Tennessee’s one-year statute of limitations for civil rights claims.” Thomas v. Copeland, 758
F. App’x 377, 380 (6th Cir. 2018).
Although the one-year limitations period is borrowed from state law, “[t]he date on which
the statute of limitations begins to run in a § 1983 action is a question of federal law.” Eidson, 510
F.3d at 635. Under federal law, the limitations period generally is triggered when a plaintiff “knows
or has reason to know of the injury” giving rise to the plaintiff’s cause of action. Thomas, 758 F.
App’x at 381 (quoting Sevier v. Turner, 742 F.2d 262, 273 (6th Cir. 1984)).
“[Plaintiff] does not dispute that a one-year statute of limitations applies to his claims.”
(Doc. No. 37 at 16) (citing Irick v. Ray, 628 F.3d 787, 788 (6th Cir. 2010)). Rather, Plaintiff argues
that the Sixth Circuit, under Cooey v. Strickland, 479 F.3d 412 (6th Cir. 2007) (“Cooey”),28 “leaves
28 The plaintiff in Cooey argued that the fluid nature of Ohio’s execution protocol requires imminency of
execution to be a key factor in the accrual calculus. The Sixth Circuit rejected that argument:
In Alley [v. Little, 186 F. App’x 604, (6th Cir.), reh’g en banc denied, 452 F.3d 621 (6th
Cir.), cert. denied, 548 U.S. 921, 126 S. Ct. 2975, 165 L.Ed.2d 982 (2006)], a Tennessee
inmate also argued that his § 1983 claim challenging Tennessee’s lethal injection protocol
was not ripe until an execution date was imminent. In rejecting this argument we stated:
Alley’s brief cites Stewart v. Martinez–Villareal, 523 U.S. 637 (1998) as
prohibiting courts from considering challenges such as the one in our case before
a petitioner’s execution reaches imminence. We reject this reading of this
precedent. In that case, unlike in ours, the defendant’s claim under Ford v.
Wainwright, 477 U.S. 399 (1986), had originally been dismissed without prejudice.
The Supreme Court’s ruling merely allowed the claim to proceed in a habeas
petition at a later date. The Court noted that the lower courts had specifically left
open the possibility that the defendant’s Ford claim could proceed in a future filing.
Id. at 640 ... No such procedural history informs the posture of the § 1983 claim in
our case. Moreover, we note that claims involving mental competency are
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open the possibility that the limitations period resets where changes to a protocol are substantial
and relate to a plaintiff’s core complaints.” 29 (Doc. No. 37 at 17).
Cooey is an important case, but it is meandering and thus requires some explication. There,
the Sixth Circuit addressed what was the appropriate accrual date for a plaintiff challenging Ohio’s
lethal-injection protocol (but not the general notion of execution by lethal injection) under Section
inherently different from the § 1983 petition before us in at least one respect:
mental competency is subject to variance over time. It is indeed possible that last-
minute first-instance Ford petitions could be justified by a change in a defendant’s
mental health.
[Alley, 186 F. App’x] at 607.
In contrast, while the lethal injection protocol in this case is subject to change, there was
no evidence, until recently, that the protocol had ever been changed. And, furthermore, the
recent changes do not relate to Cooey’s core complaints.
Cooey, 479 F.3d at 423 (internal citations cleaned up) (emphasis added). From the above, it is clear to the
Court that Plaintiff blurred a few statements in order to argue that Cooey “leaves open the possibility that
the limitations period resets where changes to a protocol are substantial and relate to a plaintiff’s core
complaints.” (Doc. No. 37 at 17).
The court in Cooey noted that the Supreme Court in Stewart specifically allowed a particular claim to
proceed in habeas at a later date and then distinguished between claims involving mental competency and
a section 1983 petition. Indeed, Cooey appears to conclude there is no open possibility to “reset” the statute
of limitations for challenges to the constitutionality of a lethal injection, and moreover, that any such
consideration would only occur on a case-by-case basis—e.g., as above where the Supreme Court allowed
a claim of insanity filed via a habeas corpus petition, see Ford v. Wainwright, 477 U.S. 399, 410 (2007), to
be filed at a later date (i.e., not a claim challenging a lethal injection protocol) and where a court, as in
Cooey, considers the execution protocol of a particular state.
29 Plaintiff also argues that Cooey and its predecessors were concerned primarily with last-minute, dilatory
and speculative lawsuits. (Doc. No. 37 at 16) (citing Cooey, 479 F.3d at 421). The Court disagrees. True,
Cooey did use the term “dilatory or speculative suits,” noting that the phrase originally came from Hill v.
McDonough, 547 U.S. 573, 585 (2006). Cooey, 479 F.3d at 421 (quoting Rutherford v. McDonough, 466
F.3d 970, 974 (11th Cir. 2006) (quoting Hill, 547 U.S. at 585)). In Hill, the Supreme Court stated that “[t]he
federal courts can and should protect States from dilatory or speculative suits . . . .” Hill, 547 U.S. at 585.
But Cooey’s mere use of that term does not mean that Cooey was “primarily” concerned with last-minute,
dilatory and speculative lawsuits. To the contrary, Cooey thoroughly discussed timeliness in general and
established that in general, the “most appropriate accrual date [i.e., date on which the one-year limitations
period begins to run] should mirror that found in the AEDPA: upon conclusion of direct review in the state
court or the expiration of time for seeking such review.” Cooey, 479 F.3d at 422 (citing 28 U.S.C. §
2244(d)(1)(A) (1996)). That said, as indicated above, Cooey prescribed an alternative accrual date for
method-of-execution claims. As clarified later by the Sixth Circuit, the alternative accrual date is the date
when the particular method of execution was adopted by the state. See Irick, 628 F.3d at 788.
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1983. Cooey, 479 F.3d at 415. At one point, summarizing an earlier discussion, the court stated
that as an accrual date, “the ‘date’ the lethal injection protocol is imposed is infeasible . . .” Id. at
421. In referring there to the “date the lethal injection protocol is imposed,” the court appeared
(based on its earlier discussion) to refer to the date “when the actual harm is inflicted, i.e., at the
point of execution,” id. at 418, 421; this indeed would be an “infeasible” date of accrual because
it would mean that the method-of-execution claim “would not accrue until he was executed, at
which time it would also be simultaneously moot.” Id at 418. As part of that discussion, the court
noted, “[i]f the point of infliction is not a viable option, the most logical choice of a triggering
event is the point when the death penalty is ordered, upon judgment of conviction and sentence.”
Id. at 418. The court embraced choosing that date, calling it “attractive” because that date “marks
the point at which the state has rendered its criminal judgment final and, absent collateral civil
proceedings, the point at which the state sets the execution date” and would leave time for “the
death-sentenced inmate [to] file suit and obtain relief.” Id. at 419.
Next, the court rejected the view of the district court below that “the accrual date occurs
when execution is imminent and all state and federal remedies have been exhausted. . ..” Id. Then,
after noting that the plaintiff’s method-of-execution challenge—though cognizable under Section
1983—“fall[s] at the margins of habeas,” (id. at 421) (quoting Nelson v. Campbell, 541 U.S. 637,
646 (2004)), the court embraced the accrual rules that, under the Antiterrrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), apply to habeas corpus actions. Specifically, after making
its above-quoted observation that “the ‘date’ the lethal injection protocol is imposed is infeasible,”
id., the court stated, “[I]t stands to reason that the next most appropriate accrual date should mirror
that found in the AEDPA: upon conclusion of direct review in the state court or the expiration of
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time for seeking such review.”30 Id. at 422. The court clearly embraced this as the general standard
and noted that under that standard the plaintiff‘s claim would have accrued in 1991, after the
United States Supreme Court denied direct review. Id.
Then, however, the court noted that in the plaintiff’s particular case (a method-of-execution
case), “the accrual date must be adjusted because Cooey obviously could not have discovered the
‘injury’ until one of two later dates,” namely, when Ohio adopted lethal injection in 1993, or when
Ohio made it the exclusive method of execution in 2001. Id. Although Cooey did not come right
out and say it, what it called an “adjust[ment]” to the accrual date is actually a recognition of an
alternative accrual date that applies in method-of-execution cases in particular; the alternative
date—which applies if it is later that the date under general rule (the date of conclusion on direct
review or the expiration of time seeking such review), is the date when the particular method of
execution is adopted by the state. As the Sixth Circuit later put it, Cooey teaches that for Section
1983 method-of-execution claims (like Plaintiff’s Count III), the limitations period starts running
either “upon the conclusion of direct review in the state court” or “when the particular method of
execution is adopted by the state,” whichever is later. Irick, 628 F.3d at 788.
As noted above, Plaintiff asserts that Cooey (which Plaintiff calls “Cooey II”) “leaves open
the possibility that the limitations period resets where changes to a protocol are substantial and
relate to a plaintiff’s core complaints.” (Doc. No. 37 at 17). For this assertion, Plaintiff relies solely
on the following language in Cooey: “In contrast, while the lethal injection [protocol] is subject to
change, there was no evidence, until recently, that the protocol had ever been changed. And,
furthermore, the recent changes do not relate to [the plaintiff]’s core complaints.” (Id.) (quoting
30 In the instant case, Plaintiff’s time for seeking direct review did not expire; instead, he timely requested
and received direct review. Therefore, the alternative accrual date under this standard of “expiration of time
for seeking [direct] review,” 479 F.3d at 421 is inapplicable in Plaintiff’s case and generally need not be
referred to herein.
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Cooey, 479 F.3d at 423). But Plaintiff fails to put this language into its context. Immediately before
the above-quoted passage, the court in Cooey was contrasting the lethal injection protocol at issue
in Cooey with mental competency, which was at issue in the case (Stewart v. Martinez–
Villareal, 523 U.S. 637 (1998)) on which the plaintiff in Cooey relied upon for the proposition that
“the fluid nature of Ohio’s execution protocol requires imminency of execution to be a key factor
in the accrual calculus.” 479 F.3d 412, 423 (6th Cir. 2007). In rejecting that proposition, the court
in Cooey first noted in effect that Stewart involved a particular kind of claim: a so-called Ford
claim, which challenges the prisoner’s competence to be executed; the court then noted in effect
that issues with mental competency potentially could support a very late filing of a Section 1983
action if there had been a late change in the plaintiff’s competency. Id. (quoting Alley v. Little, 186
F. Appx. 604, 607 (6th Cir. 2006)). The court in Cooey then contrasted that scenario (a late change
in the plaintiff’s mental competency) with the scenario before the court in Cooey (which did not
involve a change in the thing that was at issue, Ohio’s lethal injection protocol); the court did so
by making the statement on which Plaintiff here relies: “In contrast, while the lethal injection
[protocol] is subject to change, there was no evidence, until recently, that the protocol had ever
been changed. And, furthermore, the recent changes do not relate to [the plaintiff]’s core
complaints.” 479 F.3d at 423.
Considered by itself, that quoted statement itself may “leave[ ] open the possibility that the
limitations period resets where changes to a protocol are substantial and relate to a plaintiff’s core
complaints,” just as Plaintiff claims. (Doc. No. 37 at 17). After all, nothing about that statement,
viewed in isolation, forecloses the possibility that the limitations period resets where changes to a
protocol are substantial and relate to a plaintiff’s core complaints. But neither does that statement
affirmatively suggest that the limitations period resets under those circumstances. All that it
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affirmatively suggests is that in Cooey the plaintiff’s particular reliance on Stewart missed the
mark because Stewart was addressing claims based on something (mental competence, or lack
thereof) that could undergo late changes close in time to the scheduled execution date, while
Cooey’s claim did not actually involve late changes to the thing (Ohio’s lethal injection protocol)
upon which his claim was based. In summary, the Court concludes that the language on which
Plaintiff here relies served merely to distinguish Cooey from Stewart, and not to set forth yet a
third alternative for setting (or re-setting) the limitations period.
Relatedly, but perhaps even more to the point, Irick made no mention of a third alternative
for (re-)setting the accrual date on a method-of-execution claim. Instead, it noted that Cooey had
set forth two alternatives: “upon the conclusion of direct review in the state court” or “when the
particular method of execution is adopted by the state,” whichever is later. Irick, 628 F.3d at 788.
If a third alternative—whereby the date of accrual is re(set) to the effective date of “substantial”
changes to a protocol that relate to a plaintiff’s “core” complaints—had been created or recognized
by Cooey, surely the court in Cooey would have made that clear and Irick would have mentioned
it. But that did not happen.
Additionally, the overall tenor of Cooey is inconsistent with the notion that the limitations
period resets where changes to a protocol (other than the adoption of a new “particular method of
execution” is adopted by the state) are “substantial” and relate to the plaintiff’s “core” complaints.
Cooey spoke at length about the AEDPA’s recognition (in the habeas context) of the importance
of federal-state comity, finality of judgments, and the state’s ability to carrying out its (death)
sentences without perpetual delays caused by lawsuits filed close in time to a scheduled date of
execution; Cooey also noted that these imperatives “apply with equal force in [the plaintiff’s
Section 1983] case [because it] falls at the margins of habeas.” Cooey, 479 F.3d at 420-21 (internal
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quotation marks omitted). All of these imperatives would be frustrated if a condemned prisoner
was able to reset the limitations period merely by alleging some change in the state’s execution
protocol (other than the adoption of a new “particular method of execution” by the state, which as
Irick noted can reset the limitations period) that could be deemed “substantial” and then making
that change in the protocol the “core” of the complaint. That is to say, allowing the use a subjective
and malleable notion of “substantial” changes to an execution protocol as grounds to reset a
limitations period would imperil the very state and societal interests touted in Cooey. So the Court
declines to find that Cooey supports resetting the limitations period where changes to a protocol
are substantial and relate to a plaintiff’s core complaints
The Court finds instead that the only cognizable scenario for “resetting” in a method-of-
execution case is the one that Irick identified: the limitations period can reset upon the state’s
adoption of a new “particular method of execution.” Irick, 628 F.3d at 788. So, the question for
this Court is whether the implementation of the Revised Protocol constituted the adoption of a new
“particular method of execution.” Cooey indicates that with respect to lethal injection, an adoption
of a new particular method occurs either when lethal injection is adopted as a method of execution
or when the state makes it the exclusive method of execution. See 479 F.3d at 422. It follows that
not just any change(s) to a lethal-injection protocol constitutes an adoption of a new “particular
method of execution.”
Defendants argue that the one-year limitation period for Plaintiff to challenge generally the
constitutionality of his method of execution lapsed over twenty (20) years ago, given when
Plaintiff’s state court direct review concluded (which was in 2002 according to Defendants and
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1995 according to the Court) 31 and when lethal injection became the default method of execution
in Tennessee (which was in 2000, pursuant to 2000 Tenn. Pub. Acts, c. 614, § 4). (Doc. No. 28 at
19). Based on its view of what Cooey indicates, the Court does not find that the Revised Protocol
is to be treated as a new “particular method of execution,” and agrees with Defendants that the
limitations period for a claim by Plaintiff to make a general (“facial”) challenge to anything about
his execution by lethal injection expired in early 2000.32
Alternatively, though, the Court will assume arguendo that a new “particular method of
execution” is adopted whenever a state that uses lethal injection changes the drug(s) it uses in
lethal injections. Even then, the Court concludes that prior to the filing of this action, the limitations
period expired on Plaintiff’s claim that use of single-drug pentobarbital violates the Eighth
Amendment.
In so concluding, the Court first notes that Tennessee’s choice of drug(s) for lethal injection
has changed multiple times over the years, as Defendants outlined in their Memorandum:
2000: Three-drug lethal injection protocol adopted as default method of
execution in Tennessee. See State v. Morris, 24 S.W.3d 788, 797 (Tenn. 2000);
Abdur’Rahman v. Bredesen, 181 S.W.3d 292 (Tenn. 2005), cert. denied, 547
U.S. 1147 (2006).
• 	2013: TDOC adopted single-drug (pentobarbital) lethal injection protocol. See
West v. Schofield, 519 S.W.3d 550, 552 (Tenn. 2017), cert. denied sub nom.
West v. Parker, 583 U.S. 1000, (2017).
• 	2018: TDOC returned to a three-drug lethal injection protocol, as an alternative
to the one-drug pentobarbital protocol.
• 	2025: TDOC returns to the use of singe-drug pentobarbital.
31 As noted in a footnote above, Defendants peg this to have occurred in 2002, but actually it was 1995,
which if anything is just that much better for Defendants, who (as the ones asserting a limitations defense)
naturally would prefer the earliest possible accrual date, all other thing being equal.
32 The Court pegs the date (year) as 2000, which is the later of when direct review of his conviction and
sentence was concluded (1995) and when lethal injection became the default method of execution in
Tennessee (2000).
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(Doc. No. 28 at pp. 6-9). The Court concludes that given this timeline, Plaintiff’s claim challenging
the use of single-drug pentobarbital in particular accrued in 2013, when Tennessee first adopted a
single-drug pentobarbital lethal injection. It was at that time that Plaintiff could have challenged
the constitutionality33 of single-drug pentobarbital lethal injection; whether or not such a challenge
would have been meritorious, all circumstances (including but not limited to Plaintiff’s alleged
injury from single-drug pentobarbital sufficient to support standing and the substantive “injury”
element of a Section 1983 action) were in place for Plaintiff to make such a challenge. But Plaintiff
did not make one at that time, and the one-year limitations period then expired years before
Tennessee moved away from single drug pentobarbital. And the Court simply does not see a basis
for the limitations period on a facial (as opposed to as applied) challenge to reset merely because
the state has gone back to single-drug pentobarbital.
For all of these reasons, the Court finds that Plaintiff’s Count III is time-barred. The
Court—albeit based on a more thorough and perhaps more nuanced analysis than was provided by
Defendants (who, in their defense, were dealing with page limitations that do not apply to the Court
and the above-referenced understandable confusion about the nature of the constitutional challenge
in Count III)—therefore will grant the Motion as to Count III.
The Court further notes (albeit only as dicta) that even had Plaintiff’s general challenge not
been time-barred, it would have faced great obstacles on the merits. It would be an understatement
to say the U.S. Supreme Court has expressed skepticism that use of pentobarbital necessarily
violates the Eight Amendment. In particular, in vacating a district court’s preliminary injunction
33 The Court emphasizes that Count III presents a facial challenge to the Revised Protocol, with its single-
drug (pentobarbital) lethal injection. The Court realizes that Plaintiff alleges in Count IV that Tennessee’s
Revised Protocol as applied to him is unconstitutional under the Eighth Amendment to the United States
Constitution, and the Court reviews Count IV in the next section.
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that was based on the district court’s finding that the use of pentobarbital likely constitutes cruel
and unusual punishment prohibited by the Eighth Amendment, the Supreme Court noted:
[f]ar from seeking to superadd terror, pain, or disgrace to their executions, the States
have often sought more nearly the opposite, developing new methods, such as lethal
injection, thought to be less painful and more humane than traditional methods, like
hanging, that have been uniformly regarded as constitutional for centuries. The
Federal Government followed this trend by selecting a lethal injection protocol—
single-dose pentobarbital—that has become a mainstay of state executions.
Pentobarbital:
Has been adopted by five of the small number of States that currently implement
the death penalty.
Has been used to carry out over 100 executions, without incident.
Has been repeatedly invoked by prisoners as a less painful and risky alternative to
the lethal injection protocols of other jurisdictions.
Was upheld by this Court last year, as applied to a prisoner with a unique medical
condition that could only have increased any baseline risk of pain associated with
pentobarbital as a general matter.
Has been upheld by numerous Courts of Appeals against Eighth Amendment
challenges similar to the one presented here.
Bar v. Leer, 591 U.S. 979, 980–81 (2020) (citations and internal quotation marks omitted). For
various reasons (including the fact that by now executions via single drug pentobarbital may well
have involved “incident[s]”), Barr would not be conclusive in the present case, but it does suggest
major obstacles Count III would have had to surmount in order to succeed on the merits.
(C) Plaintiff Has Not Alleged Factual Matter Plausibly Suggesting that Tennessee’s
Revised Protocol as Applied to Him Is Unconstitutional under the Eighth Amendment
to the United States Constitution (Count IV).
Plaintiff argues that even if the Revised Protocol is not found to be unconstitutional
generally, it should be found unconstitutional as applied to Plaintiff because his “individual
physical characteristics that include, but are not limited to his advanced age, lung disease and
scarring, obesity, fatty deposits on his liver, cholecystitis, and Type 2 diabetes make it sure or very
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likely that there is a substantial risk that he will experience unnecessary and serious pain and
needless suffering of the type alleged throughout this complaint if subjected to execution by the
[R]evised [P]rotocol.” (Doc. No. 1 at ¶¶ 128, 129). Additionally, Plaintiff argues that “Defendants’
history of error, negligence, and malfeasance in carrying out lethal injections in Tennessee is sure
or very likely to cause the Plaintiff a substantial and unjustifiable risk of serious pain and needless
suffering.” (Id. at ¶ 136). More specifically, Plaintiff alleges that “Defendants’ lack of training and
lack of appropriate qualifications to carry out lethal injections in Tennessee are sure or very likely
to cause the Plaintiff a substantial and unjustifiable risk of serious pain and needless suffering.”
(Id. at ¶ 134).
Plaintiff faces an exceedingly high bar to succeed on his method-of-execution claim,
because the Supreme Court “‘has yet to hold that a State’s method of execution qualifies as cruel
and unusual.’” Bucklew v. Precythe, 587 U.S. 119, 134 (2019). And as noted above, the Supreme
Court has expressed substantial and detailed skepticism that use of pentobarbital would ever
violate the Eighth Amendment. These principles make clear that the Court cannot except mere
conclusory allegations that use of pentobarbital on Plaintiff rises to the level of an Eighth
Amendment violation. The Supreme Court in Glossip summarized what Plaintiff would need to
establish a successful method-of-execution claim under the Eighth Amendment as follows34:
The controlling opinion in Baze [v. Rees, 553 U.S. 35 (2008)] first concluded that
prisoners cannot successfully challenge a method of execution unless they establish
that the method presents a risk that is “‘sure or very likely to cause serious illness
34 Classifying a challenge as facial or as-applied affects the extent to which the invalidity of the challenged
law must be demonstrated and the corresponding “breadth of the remedy,” but it does not speak at all to the
substantive rule of law necessary to establish a constitutional violation. Bucklew, 587 U.S. at 138–39
(quoting Citizens United v. Federal Election Comm'n, 558 U.S. 310, 331 (2010)). Surely it would be strange
for the same words of the Constitution to bear entirely different meanings depending only on how broad a
remedy the plaintiff chooses to seek. See Gross v. United States, 771 F.3d 10, 14–15 (D.C. Cir. 2014)
(“‘[T]he substantive rule of law is the same for both [facial and as-applied] challenges’”). These principles
apply to all method-of-execution claims, whether identified as “facial” or “as applied.”
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and needless suffering,’ and give rise to ‘sufficiently imminent dangers.’” Id., at 50
(quoting Helling v. McKinney, 509 U.S. 25, 33, 34–35 (1993)). To prevail on such
a claim, “there must be a ‘substantial risk of serious harm,’ an ‘objectively
intolerable risk of harm’ that prevents prison officials from pleading that they were
‘subjectively blameless for purposes of the Eighth Amendment.’” 553 U.S., at 50,
(quoting Farmer v. Brennan, 511 U.S. 825, 846, and n. 9 (1994)). The controlling
opinion also stated that prisoners “cannot successfully challenge a State’s method
of execution merely by showing a slightly or marginally safer alternative.” 553
U.S., at 51. Instead, prisoners must identify an alternative that is “feasible, readily
implemented, and in fact significantly reduce[s] a substantial risk of severe pain.”
Id., at 52.
Glossip v. Gross, 576 U.S. 863, 877 (2015) (internal citations cleaned up).35 Put another way, a
plaintiff bringing a method-of-execution claim under the Eighth Amendment needs to show two
elements: (1) that the State’s chosen method of execution presents a risk that is sure or very likely
to cause serious illness and needless suffering and give rise to sufficiently imminent dangers (i.e.,
substantial risk of severe pain), and (2) a State’s chosen method cruelly “superadds” pain to the
death sentence, something a plaintiff can establish by showing that (a) there is existence of a
feasible and readily implemented alternative method that would significantly reduce a substantial
risk of severe pain and (b) that the State has refused to adopt that alternative without a legitimate
penological reason or such refusal. Bucklew, 587 U.S. at 133-34.
The proposed alternative method of execution need not be “presently authorized by a
particular State’s law.” Id. at 139–40. But to show that the alternative method of execution is a
feasible alternative, an inmate is “required to do more than simply offer the testimony of a few
experts or a few studies. Instead, an inmate challenging a method of execution should point to a
well-established scientific consensus. Only if a State refused to change its method in the face of
35 In the Court’s view, the reference to “illness” in the context of a rapidly occurring event like an execution
is inapt. It seems to the Court that few persons would refer to a condemned prisoner as experiencing
“illness”—as opposed to suffering and dying—during or as a result of an execution. Herein, the Court at
times speaks in terms just of suffering and not “illness,” with the understanding that references to “illness”
would not make any analytical difference or add any weight to Plaintiff’s claims.
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such evidence would the State’s conduct be comparable to circumstances that the Court has
previously held to be in violation of the Eighth Amendment.” Baze v. Rees, 553 U.S. 35, 67 (2008)
(Alito, J., concurring) (citing Farmer v. Brennan, 511 U.S. 825, 836 (1994)).36
The plurality in Baze noted that its “cases recognize that subjecting individuals to a risk of
future harm—not simply actually inflicting pain—can qualify as cruel and unusual punishment.”
Baze, 553 U.S. 35, 49–50 (2008). Plaintiff needs to show that the “State’s lethal injection protocol
creates a demonstrated risk of severe pain. [And] [h]e must show that the risk is substantial when
compared to the known and available alternatives.” Id. at 61.
Applying these principles to the instant case, Plaintiff must show that (a) his specific
Medical Conditions make it sure or very likely that he would experience “serious illness and
needless suffering” if executed by Tennessee’s chosen method (i.e., lethal injection using single
drug pentobarbital) and (b) a feasible, readily implemented, and significantly less painful
alternative method of execution exists. Defendants contend that Plaintiff “speculates that the
[Revised] Protocol’s failure ‘to account for unique physical’ and mental characteristics ‘may affect
the efficacy’ of the execution process. But [Plaintiff] fails to show that his specific Medical
Conditions are ‘sure or very likely’ to cause pain above any other execution under the [Revised]
Protocol.” (Doc. No. 28 at 21-22) (quoting Doc. No. 1. at ¶¶ 130-31).37 However, Plaintiff does
make the following allegations:
36 The Court realizes that neither the plurality opinion nor Justice Alito’s concurrence in Baze is binding
authority, but it concludes that they each accurately state the applicable law.
37 Defendants’ argument is unclear, as it seems to inadvertently combine the first and second prong of what
Plaintiff must show. However, it is clear that in support of their contention that Plaintiff’s allegations are
too speculative to state a claim, Defendants primarily rely upon four decisions—Baze; Cooey; Jackson v.
Danberg, 594 F.3d 210 (3d Cir. 2010); Brewer v. Landrigan, 562 U.S. 996 (2010). But none of those
decisions involved a motion to dismiss, whereon the plaintiff’s factual allegations are assumed to be true.
Each of those cases, except Baze, reviewed the condemned inmate’s Eighth Amendment claim under
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1. 	Upon information and belief, the Plaintiff presents with individual physical
characteristics that include, but are not limited to his advanced age, lung disease
and scarring, obesity, fatty deposits on his liver, cholecystitis, and Type 2
diabetes. (Doc. No. 1 at ¶ 46).
2. 	The Plaintiff’s physical characteristics of his advanced age, lung disease and
scarring, obesity, fatty deposits on his liver, cholecystitis, and Type 2 diabetes
make it significantly more difficult to achieve and/or maintain peripheral IV
access on the Plaintiff that is needed to ensure proper delivery of the
pentobarbital. (Id. at ¶ 48).
3. 	The Plaintiff’s individual physical characteristics of his advanced age, lung
disease and scarring, obesity, fatty deposits on his liver, cholecystitis, and Type
2 diabetes make it sure or very likely that there is a substantial risk that he will
be subjected to unnecessary and serious pain and needless suffering as the
Defendants attempt to achieve peripheral IV access on him during the execution
process, and when the Defendants are unable to maintain peripheral IV access
on him, make it sure or very likely that there is a substantial risk that the
Plaintiff’s individual physical characteristics will interfere with the proper
delivery of the pentobarbital causing serious illness and needless suffering. (Id.
at ¶ 49).
4. 	“The Plaintiff’s physical characteristics of his advanced age, lung disease and
scarring, obesity, fatty deposits on his liver, cholecystitis, and Type 2 diabetes
make it sure or very likely that there is a substantial risk that he will begin to
suffocate and experience a drowning sensation while he remains aware or
sensate.” (Id. at ¶ 51).
5. 	The Plaintiff’s individual physical characteristics that include, but are not
limited to his advanced age, lung disease and scarring, obesity, fatty deposits
on his liver, cholecystitis, and Type 2 diabetes make it sure or very likely that
there is a substantial risk that he will experience unnecessary and serious pain
and needless suffering of the type alleged throughout this complaint if subjected
to execution by the revised protocol. (Id. at ¶ 129).
These allegations go beyond merely offering a formulaic recitation of the elements of a
cause of action and set forth pertinent factual matter, which the Court must accept as true on
standards governing a preliminary injunction, a temporary restraining order, or summary judgment.
Consequently, Defendants’ cited authority offers little in support of their argument that Plaintiff has failed
to plead factually matter that, when accepted as true as required at this stage, plausibly suggest that his
Medical Conditions will make it sure or very likely that he will experience a substantial risk of serious
illness or needless pain when executed by lethal injection.
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Defendant’s Rule 12(b)(6) challenge. Moreover, Plaintiff cites (and attaches to the Complaint)
reports that support the notion that injection of pentobarbital causes flash (acute) pulmonary edema
creating a drowning sensation akin to waterboarding that is “one of the most powerful, excruciating
feelings known to man.” (Doc. No. 1-7 at 14). The factual allegations in the Complaint (and
incorporated attachments) are sufficient to plausibly suggest that Plaintiff is sure or very likely to
experience “needless suffering.”38 This is enough for the Court to find that Plaintiff has made an
adequate showing of the first requirement (i.e., that the State’s chosen method of execution
presents a risk that is sure or very likely to cause serious illness and needless suffering).39
38 The Court notes that it is unsure what is meant in this context by “needless” suffering. In view of the
Court, the term is problematic because surely whether suffering is “needless” depends on whether there are
acceptable alternatives that would avoid such suffering. And yet the requirement of “needless[ness]” of the
suffering is referenced only in the first of the two above-stated elements for this claim, before the second
element (the one that addresses alternatives) is even reached. For this reason, it would seem that in order to
find the first element satisfied, the Court would have to conclude that there are no acceptable alternatives
to single drug pentobarbital, even before reaching the (only) element whereon the existence of acceptable
alternatives is supposed to be addressed. But the Court need not conclusively resolve this tension, because
it is finding the first element satisfied in any event (based on equating “needless suffering” with, essentially,
“dreadful suffering” in order to avoid this tension for present purposes).
39 Plaintiff is not required at this stage to make a more detailed or elaborate showing of how his Medical
Conditions make it sure or very likely that he will experience serious illness or needless pain. Based on its
review of other court decision, the Court concludes that at this stage, Plaintiff need only allege factual
matter suggesting that he could experience serious illness or needless if he is executed by lethal injection.
Cf Nance v. Comm’r, Georgia Dep’t of Corr., 59 F.4th 1149, 1156 (11th Cir. 2023) (finding that the plaintiff
plausibly pled where the plaintiff alleged via his complaint that taking gabapentin made his brain less
receptive to pentobarbital, specifically alleging that “[p]rolonged gabapentin use alters a person’s brain
chemistry and makes the person’s brain less responsive, or even unresponsive, to other drugs, including
pentobarbital.”); Wilson v. Hamm, No. 2:24-CV-111-ECM, 2025 WL 794447, at *8 (M.D. Ala. Mar. 12,
2025) (finding that the plaintiff plausibly alleged a substantial risk of severe pain in pleading that his
“pulmonary conditions cause him to regularly cough up fluid, and if he coughs during the execution, the
gas mask may become dislodged, thereby introducing oxygen into the system and extending the time to
unconsciousness (and death), which would be further exacerbated by his constricted airways. If the mask
becomes dislodged, [the plaintiff] will experience ‘severe pain and suffering associated with a pulmonary
attack and asphyxiation,’” quoting from the plaintiff’s complaint)); Smith v. Hamm, No. 2:23-CV-656-
RAH, 2024 WL 116303, at *9 (M.D. Ala. Jan. 10, 2024), adhered to, No. 2:23-CV-656-RAH, 2024 WL
262867 (M.D. Ala. Jan. 24, 2024), and aff’d sub nom. Smith v. Comm’r, Alabama Dep’t of Corr., No. 24-
10095, 2024 WL 266027 (11th Cir. Jan. 24, 2024), cert. denied sub nom. Smith v. Hamm, 144 S. Ct. 414
(2024) (where the plaintiff alleged via his complaint several imminent dangers—improper fit of the mask;
the potential for the mask to dislodge from its sealed position for a variety of reasons such as speaking,
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But the analysis does not end there. Plaintiff must also show that the State’s chosen method
cruelly “superadds” pain to the death sentence; he can do this by both presenting a feasible and
readily implemented alternative method that would significantly reduce a substantial risk of severe
pain, and showing the State has refused to adopt Plaintiff’s alternative method without a legitimate
penological reason for such refusal. Bucklew, 587 U.S. at 133-34.
(1) Plaintiff Has Not Shown a Feasible and Readily Implemented Alternative Method
Plaintiff offered two alternative methods of execution (a firing squad or a single bullet to
the back of the head), as well as an alternative theory (Tennessee’s recent history of erred
executions by lethal injection), to support his claim that Tennessee’s current protocol—single-drug
(pentobarbital) 	lethal 	injection—would 	superadd 	pain, 	causing 	Plaintiff 	a substantial 	and
unjustifiable risk of serious pain and needless suffering. (Doc. No. 1 at pp. 25-28; ¶ 136).
First, the Court cannot find it plausible that either method presented by Plaintiff is “feasible
and readily implemented.” Neither the firing squad nor a single bullet to the back of the head is
currently a valid or lawful method of execution in Tennessee. See Tenn. Code Ann. § 40-23-114
(2024). Therefore, a court would be without any authority to order [Plaintiff] to be executed by
either method proposed by Plaintiff. True, Bucklew states that a proposed alternative method of
execution need not be “presently authorized by a particular State’s law.” Bucklew, 587 U.S. at
139–40. On the other hand, Bucklew also provides that an “inmate’s proposal must be sufficiently
detailed to permit a finding that the State could carry it out relatively easily and reasonably
quickly.” Id. at 141 (internal quotations omitted). Tennessee would have to hastily amend its
praying, or vomiting; vomiting; the introduction of oxygen into the mask; and the lack of monitoring of the
pulse oximeters during the execution—that present risks that are sure or very likely to increase the time for
the plaintiff to reach a state of unconsciousness and “would expose [him] to a severe risk of a persistent
vegetative state, a stroke, or the painful sensation of suffocation, i.e., superadded pain.”).
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execution statute to allow Plaintiff’s proposed alternatives, and this surely cuts at least
substantially against those alternatives being deemed “readily implemented.”
Moreover, neither the firing squad nor a single bullet to the back of the head has ever been
used as a method of execution in Tennessee, and there is no suggestion that any TDOC personnel
have been trained to carry out an execution by firing squad or a single bullet to the back of the
head. Tennessee has not developed a protocol to carry out an execution by firing squad or a single
bullet to the back of the head. And the Court cannot assume that TDOC would readily be able to
find enough qualified persons to serve on a firing squad or find a qualified person willing to shoot
someone point-blank in the head (a task that for multiple reasons is very different from—and even
more grim than—serving as just one member of a firing squad shooting from some distance way).
“The reality is that formulating a new protocol and locating the people and resources necessary to
carry out such an alternative . . . would take considerable time and would, inevitably, lead to an
entire new round of legal challenges [whether timely and meritorious or otherwise] regarding the
details of the protocols for constitutionally conducting an execution by firing squad.” Arthur v.
Cmm’r, Ala. Dep’t of Corr., 840 F.3d 1268, 1319-20 (11th Cir. 2016), abrogated on other grounds
by Bucklew, 587 U.S. 119) The lack of currently available resources and inevitable delay that
would accompany the implementation of Plaintiff’s proposed new methods of execution
necessarily 	undercut 	any 	argument 	that 	those 	alternatives 	presently 	feasible 	or 	readily
implemented.
Even if the Court were to determine that the firing squad is a “known and available” as
well as “feasible, [and] readily implemented” method of execution in Tennessee, it would conclude
that Plaintiff has failed to adequately allege factual matter supporting that this method is
“significantly [likely to] reduce[ ] a substantial risk of severe pain.” Glossip, 576 U.S. at 877
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(citations omitted). The Court (as noted above) accepts as true that Plaintiff is “sure or very likely”
to experience the sensation of drowning if he were to be executed via lethal injection. But now the
Court must answer a narrow question: has Plaintiff plausibly alleged facts suggesting that a firing
squad or single bullet to the back of the head significantly reduces a substantial risk of experiencing
severe pain?
Plaintiff asserts that a firing squad would avoid unnecessary and severe pain when
compared with execution via pentobarbital under the Revised Protocol, (Doc. No. 1 at ¶ 80), while
in the same proverbial breath offers a second alternative (a single bullet to the back of the head in
close range) because of the “error rate in firing-squad executions” Id. at ¶ 87).40 But Plaintiff does
nothing to substantiate the conclusory assertion that execution via a shooting (a firing squad or
single bullet to the back of the head) would result in significantly less pain than execution via
pentobarbital.41 As acknowledged by Plaintiff, the potential for human error still exists (especially
as to a firing squad), as the inmate could flinch or the executioners could miss their mark. There
is no way for the Court to weigh a risk of human error in a not-yet-adopted firing squad or single
bullet protocol against any harm that Plaintiff might face if the pentobarbital does not render him
fully unconscious and insensate. Moreover, while one might speculate that death via a firing squad
40 The allegation that there is an error rate in firing-squad executions raises the same possibility of human
error in his first alternative that Plaintiff speculates would lead to severe pain in the maladministration of
pentobarbital under the Revised Protocol. (See Doc. No. 1 at ¶ 136) (“The Defendants’ history of error,
negligence, and malfeasance in carrying out lethal injections in Tennessee is sure or very likely to cause the
Plaintiff a substantial and unjustifiable risk of serious pain and needless suffering.”) (emphasis added). This
fact cuts against Plaintiff’s argument that execution via pentobarbital in unconstitutional because (among
other things) such an execution is subject to a high error rate.
41 To be clear, the undersigned certainly can imagine the execution via pentobarbital inflicting more pain
than a shooting (given how pentobarbital operates), according to Plaintiff’s allegations (accepted as true).
But it is not enough that a plaintiff’s overarching conclusion in support of a claim is easily conceivable.
Rather, under Iqbal and Twombly, such conclusion must be plausible (and not merely possible) based on
underlying alleged factual matter.
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or single bullet to the head as being so quick as to minimize pain as compared to death via single
drug pentobarbital, the Court is unpersuaded that such speculation is reasonably inferable for
purposes of Iqbal and Twombly; although such a shooting (especially a single shot to the head),
seems to portend a quicker death, that is not obviously or necessarily true in any particular case,
and even if it were, that would not mean that the overall amount of suffering would be less. Plaintiff
alleges no facts (such as facts regarding the body’s physiological response to a shooting)
suggesting that a shooting would result in overall less suffering as compared to single-drug
pentobarbital. And the reality that the Court cannot simply accept that suggestion without any
support is undercut by multiple statements from the Supreme Court quoted above to the effect that
lethal injection (and lethal injection via single drug pentobarbital in particular) is at least arguably
relatively humane (and more humane than a firing squad). Bucklew, 587 U.S. at 134; Barr, 591
U.S. at 980.
“A minor reduction in risk is insufficient; the difference must be clear and considerable.”
Bucklew, 587 U.S. at 134. Furthermore, just as “traditionally accepted methods of execution - such
as hanging, the firing squad, electrocution, and lethal injection - are [not] necessarily rendered
unconstitutional as soon as an arguably more humane method like lethal injection becomes
available[,]”42 id. at 134, execution via single drug pentobarbital is not necessarily rendered
unconstitutional as soon as an allegedly more humane form of execution (shooting) becomes
available.
In his Complaint, Plaintiff highlights Tennessee’s history of deficiencies in conducting
execution by lethal injection, (Doc. No. 1 at ¶ 136). To the extent that Plaintiff does so as support
42 It is not lost on the Court that seemingly contrary to this quoted statement from the Supreme Court,
Plaintiff’s position is that execution via lethal injection using only pentobarbital is less humane than
execution via a firing squad.
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for the proposition that he is “sure or very likely” to experience needless suffering, Plaintiff does
not need to rely on this history, because the Court has already found him to have satisfied this
element of his claim in Count IV. But to the extent that Plaintiff relies on this history to otherwise
support that claim—by suggesting the satisfaction of the second element or the claim as a whole—
such reliance is misplaced. As Defendants argue, “[a] method-of-execution challenge ‘based on
speculative injuries and the possibility of negligent administration is not only unsupported by
Supreme Court precedent but is also beyond the scope of [that court’s] judicial authority.’” (Doc.
No. 28 at 22-23) (quoting Cooey v. Strickland, [Cooey II] II, 589 F.3d 210,225 (6th Cir. 2009)).
It is true that Plaintiff has alleged an alarming “history of error and malfeasance” regarding
the Tennessee lethal injection protocol, which is supported by the Independent Review. For
example:
• 	August 2018: the chemicals used in the execution of Billy Ray Irick
were not tested for endotoxins, and the Midazolam used was not tested
for potency;
• 	November 2018: the chemicals to be used in the event that Edmund
Zagorski opted for lethal injection were not tested for endotoxins and
failed potency testing;
• 	May 2019: the chemicals used in the execution of Donnie Edward
Johnson were not tested for endotoxins;
• 	August 2019: the chemicals to be used in the event that Stephen West
opted for lethal injection were not tested for endotoxins;
• 	December 2019: the chemicals to be used in the event that Lee Hall
opted for lethal injection were not tested for endotoxins; and
• 	February 2020: the chemicals to be used in the event that Nicholas
Sutton opted for lethal injection were not tested for endotoxins.
(Doc. No. 1 at ¶ 14). But Plaintiff’s allegations of medical negligence or negligent administration,
even when taken as true, do not implicate any sure or very likely infliction of objectively
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intolerable, superadded pain. Why? First, “Speculations, or even proof, of medical negligence in
the past or in the future are not sufficient to render a facially constitutionally sound protocol
unconstitutional [as applied to the plaintiff].” See Cooey II, 589 F.3d at 225. Second, Plaintiff has
alleged no connection between the errs cited in previous executions between 2018 and 2020 and
the Revised Protocol governing his own pending execution. Indeed, every flawed lethal injection
to which Plaintiff cites above involved failure to test for endotoxins (or failed potency tests) in
chemicals that will not be used at Plaintiff’s execution, because each execution cited above
occurred at a time when Tennessee used a three-drug lethal injection protocol. Alleging that the
flaws above would occur before or during Plaintiff’s execution under the Revised Protocol (which
uses a single-drug pentobarbital lethal injection) would be conjectural or hypothetical at this point.
As far as the Court can surmise, the above-identified errors have no connection with the single
drug (pentobarbital) or the administration of that drug. Therefore, Plaintiff has not shown that his
execution using Tennessee’s current protocol (the Revised Protocol) creates “wanton exposure to
‘objectively intolerable risk,’ not simply the possibility of pain.” Baze, 553 U.S. at 61-62 (quoting
Farmer, 511 U.S. at 846, and n.9); see also Brewer v. Landrigan, 562 U.S. 996 (2010)
(“[S]peculation cannot substitute for evidence that the drug is sure or very likely to cause serious
illness and needless suffering.”) (internal quotations marks omitted).
Consequently, Plaintiff has not carried his burden of proposing an alternative method of
execution that is “significantly [likely to] reduce a substantial risk of severe pain.” Glossip, 576
U.S. at 877 (quotations omitted) (emphasis added).
(2) Plaintiff Has Not Shown the State has Refused to Adopt Plaintiff’s Alternative Method
Without a Legitimate Penological Reason for Such Refusal.
Even if the Court were to assume that one or both of Plaintiff’s alternative methods of
execution (firing squad or bullet to the back of the head) would significantly reduce a substantial
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risk of severe pain brought by lethal injection via pentobarbital, Count IV still does not survive the
Motion, because Plaintiff has not alleged facts plausibly suggesting that Tennessee refused to
adopt 	either 	alternative 	method 	without 	a 	legitimate 	penological 	reason—an 	additional
requirement for this claim beyond the two above-referenced elements.
The Complaint alludes to no experts and no studies (let alone a scientific consensus)
indicating that his proposed alternative methods would significantly reduce a risk of pain, and in
any event, as indicated above, an inmate is required “to do more than simply offer the testimony
of a few experts or a few studies.” Baze, 553 U.S. at 67 (Alito, J., concurring). “Instead, an inmate
challenging a method of execution should point to a well-established scientific consensus. Only if
a State refused to change its method in the face of such evidence would the State’s conduct be
comparable to circumstances that the Court has previously held to be in violation of the Eighth
Amendment.” Id. (emphasis added).
Moreover, as in Bucklew, 52 U.S. at 141-42, where the proposed alternative method (the
lethal gas nitrogen hypoxia) had never been used, execution by single bullet to the back of the head
has (as far as the Complaint indicates) never been used (in Tennessee or, as is more relevant,
indeed anywhere in the United States). And Defendants’ “choosing not to be the first to experiment
with a new method of execution is a legitimate reason to reject it.” Price v. Dunn, 385 F. Supp. 3d
1215, 1232 (S.D. Ala.) (quoting Bucklew, 587 U.S. at 142), aff’d on other grounds sub nom. Price
v. Comm’r, Dep’t of Corr., 920 F.3d 1317 (11th Cir. 2019).
For these reasons, Plaintiff has failed to alleged facts plausibly suggesting that Tennessee
lacked a legitimate penological reason for refusing his two proposed alternative methods of
execution. Accordingly, Plaintiff’s Count IV fails on the merits as a matter of law. See Creech v.
Tewalt, No. 1:20-CV-00114-AKB, 2024 WL 756356, at *7 (D. Idaho Feb. 23, 2024).
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For the reasons set forth above, the Court will grant the Motion as Count IV.
(D) Plaintiff Lacks Standing to Challenge Execution by Electrocution (Count IX).
In connection with Count IX, Plaintiff essentially raises three separate arguments: (1) if he
selects electrocution as his method of execution, Defendants will treat Plaintiff as having “waived”
his right to raise any issues to the policies, practices, or equipment used in electrocution; (2) the
Revised Protocol presents a scheduling conflict that impacts Plaintiff’s timeline to make his
selection of execution; and (3) the Revised Protocol provides no maintenance and testing for the
electric chair. (Doc. No. 1 at ¶¶ 194-210).
As for the second of these, the Court takes judicial notice of Plaintiff’s declination to
choose between the electric chair and lethal injection for his December 11 execution; meaning the State
will default to lethal injection. See Travis Loller, Tennessee death row inmate declines to choose between
electric 	chair 	and 	lethal 	injection, 	Assoc. 	Press 	(Nov. 	26, 	2025, 	at 	13:58 	CST)
https://apnews.com/article/execution-death-row-tennessee-death-penalty-
5e3ab4d2bafe83f9518d404a8e34b80c (Lasted visited on November 19, 2025). So, to the extent that
Plaintiff alleges that being forced to select an execution method, or that the schedule for making or
withdrawing a selection violates his constitutional rights, those allegations are moot at this time.
That leaves the first and third of these arguments. Though couching their argument in terms
of “ripeness,”43 Defendants essentially argue that Plaintiff lacks standing to bring Count IX
43 “Whether the question is viewed as one of standing or ripeness, the Constitution mandates that prior to
our exercise of jurisdiction there exist a constitutional ‘case or controversy,’ that the issues presented are
‘definite and concrete, not hypothetical or abstract.’” Thomas v. Anchorage Equal Rts. Comm’n, 220 F.3d
1134, 1139 (9th Cir. 2000) (quoting Railway Mail Ass’n v. Corsi, 326 U.S. 88, 93 (1945)) (cleaned up). To
have standing to sue under Article III, a plaintiff must possess “a personal stake in the outcome of the
controversy.” Baker v. Carr, 369 U.S. 186, 204 (1962). “To demonstrate the ‘personal stake’ in the litigation
necessary to satisfy the Constitution, the party must suffer “a distinct and palpable injury . . . ”” Gladstone
Realtors v. Village of Bellwood, 441 U.S. 91, 120 (1979) (Rehnquist, J., dissenting) (quoting Warth v.
Seldin, 422 U.S. 490, 501 (1975)). This requirement is reflected in the first of the below-identified three
elements of standing.
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because he will not be subject to electrocution unless lethal injection is held to be unconstitutional
or lethal injection chemicals are unavailable to TDOC, i.e., that Plaintiff has not suffered some
actual or threatened injury because lethal injection is a constitutional and available method of
execution. (Doc. No. 28 at 30). Defendants do not specifically address Plaintiff’s first argument
(that if Plaintiff selects electrocution as his method of execution whether Defendants will treat
Plaintiff as having “waived” his right to raise any issues to the policies, practices, or equipment
used in execution). However, the Court views Defendants’ standing argument as generally
applying to all of Count IX, and therefore, will evaluate Plaintiff’s first augment in the context of
determining whether Plaintiff has standing to bring any claim in relation to execution by
electrocution.
To have standing a plaintiff must show that: (1) he suffered an injury, which means “an
invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or
imminent, not conjectural or hypothetical[;]” (2) the injury was caused by the person sued; and (3)
a court likely can redress the injury. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). The Court
The Ninth Circuit’s words from Kerr-McGee Chemical Corp. v. Department of the Interior, 709 F.2d
597, 600 (9th Cir. 1983) are still valid today:
Both standing and ripeness require some demonstration of injury. Standing requires that
the plaintiff show that the challenged action has caused it threatened or actual injury. See
Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S. Ct. 1601, 1607, 60
L.Ed.2d 66 (1979).
To determine ripeness, the court assesses the appropriateness of the issue for judicial
resolution and the hardship that will result from the denial of relief at this stage. Toilet
Goods Association v. Gardner, 387 U.S. 158, 162, 87 S. Ct. 1520, 1523–24, 18 L.Ed.2d
697 (1967).
Kerr-McGee Chem. Corp., 709 F.2d 597, 600. Thus, the constitutional part of ripeness “is subsumed into
the Article III requirement of standing.” Doe v. Pompeo, 451 F. Supp. 3d 100, 114 (D.D.C. 2020) (quoting
Am. Petroleum Inst. v. EPA, 683 F.3d 382, 386 (D.C. Cir. 2012)). Put another way, if Plaintiff had established
the elements of standing—including injury—this case is “constitutionally ripe.” So the Court does not
address whether Plaintiff’s challenges here are “ripe.”
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finds that Plaintiff lacks standing to bring any of the above subclaims because Plaintiff has not
selected electrocution. As Defendants point out, Tennessee’s default method of execution (lethal
injection) remains constitutional and available, meaning Plaintiff would face immediate danger by
electrocution only if he chose it, and he has not done so.44
Since there is no possibility that Plaintiff will personally suffer some actual or threatened
injury by the electric chair (i.e., has no stake in the outcome of a controversy regarding the electric
chair), Plaintiff lacks standing with respect to this claim. Therefore, the Court will grant the
Motion as to Count IX.
(E) Plaintiff has not plausibly suggested that (either facially or as applied to him),
Tennessee’s Secrecy Law (or Defendants’ Actions Based on Their Interpretation of
that law) Violate the First Amendment or the Due Process or Equal Protection
Clauses of the Fourteenth Amendment to the United States Constitution. (Count X).
In Count X, Plaintiff asserts that his right to due process and equal protection of the laws
under the Fourteenth Amendment has been violated because (1) that the Revised Protocol is
intentionally vague and hides details in relation to pentobarbital and the lethal injection process
(such as source of supplier, procurement process, quality control testing, safe transportation and
storage, selection criteria of members for execution team, and a vague reference to a “central line”)
44 Moreover, simply alleging that the fourteen-day window for Plaintiff to withdraw his waiver falls on a
holiday hardly alleges an injury. Plaintiff does not allege that he has no way of communicating a waiver to
the Warden on Thanksgiving Day, and any such allegation would seem to premised on the notion that RMSI
closes for the holiday and all prison staff goes home such that no messages can be given to the staff and
then conveyed to the Warden that day; this premise seems implausible, since it would seem that Plaintiff
on a holiday would have contact with at least one staff member to whom he could convey a withdrawal of
waiver and that staff up the chain would be able and motivated to convey such an important message to the
Warden (or be treated legally as having received the waiver as agents of the Warden). But to be clear,
Plaintiff has not asked the Court to assume this unlikely premise, because he has in no way alleged that he
cannot have a waiver communicated to the Warden on Thanksgiving Day.
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and (2) Defendants, relying on Tennessee Code Annotated § 10-7-504(h),45 provided Plaintiff a
heavily redacted version of the Revised Protocol. (Doc. No. 1 at ¶¶ 211-221). The caption to Count
IV makes some reference to a violation of the First Amendment, but the content says nothing at
all about the First Amendment.
Defendants argue that “there is no free-standing constitutional right for death row inmates”
to access the information that Plaintiff seeks here. (Doc. No. 28 at 31) (quoting Irick v. Mays, No.
3:18-CV-00737, 2018 WL 3753208, at *3 (M.D. Tenn. Aug. 8, 2018)). Defendants also contend
that Tennessee Code Annotated § 10-7-504(h)(1) affords the State the ability to make confidential
any record identifying any individual who “has been or may in the future be” involved in an
execution and anyone “involved in the procurement or provision of chemicals, equipment, supplies
and other items.” (Doc. No. 28 at 31) (quoting Tenn. Code Ann. § 10-7-504(h)(1)).
The Court sympathizes with Plaintiff’s desire to have as much information as possible
when making such an important decision. However, Plaintiff is simply not constitutionally entitled
to the sort of information that he seeks here. See Phillips v. DeWine, 841 F.3d 405, 420 (6th Cir.
2016) (affirming a district court that dismissed the plaintiffs’ Equal–Protection, Due–Process, and
Right–of–Court–Access Claims where the plaintiffs argued that House Bill 663—which addresses
45 Plaintiff also challenges Tennessee’s adoption of the execution secrecy provisions in Tennessee Code
Annotated § 10-7-504(h), claiming—in a conclusory fashion without any supporting factual allegations—
that Tennessee’s adoption of the execution secrecy provisions violates Plaintiff’s right to due process. (Doc.
No. 1 at ¶ 216). This pleading fails to satisfy the Iqbal and Twombly standard, and therefore, the Court will
deny Plaintiff’s allegation concerning Tennessee’s adoption of the execution secrecy provisions in
Tennessee Code Annotated § 10-7-504(h).
To the extent that Plaintiff is challenging the constitutionality of Tenn. Code Ann. § 10-7-504(h), it is
well-established in Tennessee that when considering the constitutionality of a statute, the Court must start
with a strong presumption that acts passed by the legislature are constitutional. Davis v. Parris, No. 217-
CV-02846MSNTMP, 2021 WL 9638643, at *13 (W.D. Tenn. Aug. 6, 2021) (citing Osborn v. Marr, 127
S.W.3d 737, 740–41 (Tenn. 2004)). The Court must “indulge every presumption and resolve every doubt
in favor of constitutionality.” Vogel v. Wells Fargo Guard Servs., 937 S.W.2d 856, 858 (Tenn. 1996). Given
this strong presumption, and the fact that Plaintiff has substantiated in any way his claim that Tennessee’s
use of a constitutional law violates his right to due process, the Court will deny this claim within Count X.
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the confidentiality of information related to lethal injection in Ohio—prevented them from
bringing an effective challenge to Ohio's execution procedures) (citing Jones v. Comm’r, Georgia
Dep’t of Corr., 812 F.3d 923 (11th Cir. 2016) (Marcus, J., concurring in the denial of rehearing en
banc) (rejecting an “abstract and inchoate due process right to discover the identity of the source
of the drugs and the name of the executioner so that [an inmate] may challenge [a state’s] execution
protocol”)).
Moreover, “not only has [the] legislature declared the public policy of Tennessee to favor
the anonymity of those involved in carrying out capital punishment, but there is neither a statutory
nor a constitutional barrier to the adoption of a common-law privilege that would prohibit the
disclosure in civil litigation of the identities of those persons involved in the execution of
condemned inmates.” West v. Schofield, 460 S.W.3d 113, 124–25 (Tenn. 2015). This is a point
that Plaintiff concedes in his Response (Doc. No. 37 at 28).
Plaintiff argues that West did not go so far as to allow Tennessee Code Annotated § 10-7-
50(h) to “prohibit disclosure of any information regarding Tennessee’s lethal injection process.”
(Id.) (emphasis in original). Plaintiff asserts that Defendants interpret the secrecy law (overbroadly
and incorrectly) as protecting “any disclosure of materials related to executions in any way.”46
(Id.). But the federal constitutional issue here does not turn on how broadly the disclosure
prohibitions of Tennessee Code Annotated § 10-7-50(h) should be construed, which is obviously
a question of state law. The federal constitutional question is whether there is a cognizable federal
constitutional right to the disclosure of whatever information regarding the lethal-injection process
46 Though the Court finds that argument unpersuasive; the fact that Defendants have provided Plaintiff with
a redacted version of the Revised Protocol shows that Defendants do not interpret the secrecy law as
protecting any disclosure of materials related to executions in any way.
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the Tennessee statute (as properly construed) prohibits disclosure of. The Court cannot find that
there is such a right, in either the First or the Fourteenth Amendment.
As for the First Amendment, as noted above the Complaint fails to illuminate in any way
how Plaintiff’s First Amendment rights were violated. And “[a]s a general rule, citizens have no
first amendment right of access to traditionally nonpublic government information.” McGehee v.
Casey, 718 F.2d 1137, 1147 (D.C. Cir. 1983). Open meetings laws, such as the Government in the
Sunshine Act, 5 U.S.C. § 552b, and public records acts, such as the Freedom of Information Act,
5 U.S.C. § 552, provide persons with a broad, statutory right of access to government proceedings
and documents. But, in general, the right of access is statutory, not constitutional, in nature: “[The
Supreme] Court has repeatedly made clear that there is no constitutional right to obtain all the
information provided by FOIA laws.” McBurney v. Young, 569 U.S. 221, 232 (2013). See also
Ryan v. Wood, 573 U.S. 976 (2014) (where the Supreme affirmed the rule above in reversing of
an appellate court’s finding that a district judge abused his discretion in denying a motion for a
preliminary injunction, wherein an inmate sought information about how the State chose the
amounts to be used of both drugs, the name and manufacturer of both drugs, the source of the
drugs, and the credentials of those who would administer them.) (case below, Wood v. Ryan, 759
F.3d 1076, 1078 (9th Cir. 2014)).
As for Plaintiff’s invocation of the Fourteenth Amendment in Count X, Plaintiff alleges
that “[t]he vagueness of the revised protocol makes any challenge prohibitive and violates the
Plaintiff’s right to due process under the Fourteenth Amendment to the United States Constitution
and Article I of the Tennessee Constitution.” (Doc. No. 1 at ¶ 221). As an example, Plaintiff points
to a “vague reference to ‘central line’” in the Revise Protocol. (Id. at ¶¶ 34, 215(f)).
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Plaintiff is raising a constitutional challenge based on the vagueness of certain terms within
the Revised Protocol. Plaintiff has cited no legal authority suggesting that any such vagueness in
this kind of document is a matter of constitutional concern. And in the Court’s view, weighing in
on purported vagueness of the Revised Protocol would result in precisely what the Baze plurality
warned against: “transform[ing] courts into boards of inquiry charged with determining ‘best
practices’ for executions, with each ruling supplanted by another round of litigation touting a new
and improved methodology.” Baze, 553 U.S. at 51. Thus, the Court declines to grant relief on
Plaintiff’s vagueness challenge.
Finally, as to equal protection, Plaintiff alleges that “Defendants’ refusal to provide counsel
for the Plaintiff anything but a heavily redacted protocol violates the Plaintiff’s right to equal
protection [because] Defendants have provided similarly situated prisoners residing in this District,
in Nashville, Davidson County, Tennessee with an unredacted copy of the revised protocol.” (Doc.
No. 1 at ¶ 213, 214). This is a class-of-one equal protection claim, and it fails for the same reason
his class-of-one claim failed in Count I.
In sum, the Court cannot find legal precedent supporting that Plaintiff has suffered any
violations of any constitutional rights or that, even if he did, he is entitled as a remedy to the
information he seeks here (source of supplier, procurement process, quality control testing, safe
transportation and storage, selection criteria of members for execution team). Moreover, the Court
is aware of no legal authority that (a) compels this Court to decide (or even merely counsels in
favor of the Court deciding) the extent to which terms within the Revised Protocol are vague; or
(b) would grant a plaintiff the kind of relief Plaintiff seeks (or indeed any relief at all) based on
any such vagueness. Accordingly, this Court will grant the Motion as to Count X.
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(F) 	Tennessee’s 	Revised 	Protocol 	Does 	Not 	Violate 	the 	Tennessee 	Uniform
Administrative Procedures Act, the Fourteenth Amendment to the United States
Constitution, or Article I of the Tennessee Constitution (Count XI).
In his last Count, Plaintiff argues that TDOC intentionally avoided compliance with
Tennessee’s Uniform Administrative Procedures Act (“UAPA”) in the course of promulgating the
Revised Protocol, thereby violating Plaintiff’s right to due process. (Doc. No. 1 at ¶¶ 222, 230).
Defendants argue that the Revised Protocol “is not a rule as defined by the UAPA.” (Doc. No. 28
at 33) (quoting Abdur’Rahman v. Bredesen, 181 S.W.3d 292, 311 (Tenn. 2005) (citing Tenn. Code
Ann. § 4–5–102(10)). Rather, Defendants argue that the Revised Protocol “fits squarely within
two exceptions to the meaning of ‘rule’: statements concerning only the internal management of
state government and not affecting private rights privileges or procedures available to the public,”
and “statements concerning inmates of a correctional or detention facility[.]” Id. (citations
omitted).
In his Response, Plaintiff argues that Abdur’Rahman, 181 S.W.3d at 311 (holding that “the
lethal injection protocol is not subject to the requirements of the UAPA”), was “wrongly decided,”
and in so doing he compares this ruling to a Kentucky decision that held that the manner of carrying
out an execution is not an issue with which only the department of corrections (and not the greater
public) is concerned. (Doc. No. 37 at 30). Thus, according to Plaintiff, the promulgation of an
execution protocol should comply with legal requirements for rulemaking. (Id.) (citing Bowling v.
Ky. Dep’t of Corr., 301 S.W.3d 478, 489–90 (Ky. 2009)).
The UAPA requires a state agency in Tennessee to follow specified uniform procedures
when making rules. Abdur’Rahman, 181 S.W.3d 311 (citing Tenn. Code Ann. § 4–5–201 et seq.
(1998 & Supp. 2004)). These detailed procedures govern public hearings on the content of
proposed rules, the conduct of those hearings, approval of the rules by the Attorney General, filing
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of the rules with the Secretary of State, and publication in the administrative register. Id. Under
the UAPA, an “agency” refers to a “state board, commission, committee, department, officer, or
any such unit of state government authorized or required by any statute or constitutional provision
to make rules….” Tenn. Code Ann. § 4–5–102(2). A “rule” is an agency statement of general
applicability “that implements or prescribes a law or policy or describes the procedures or practice
requirements of any agency….” Tenn. Code Ann. § 4–5–102(12)(B). However, a “rule” includes
neither “[s]tatements concerning only the internal management of state government and not
affecting private rights, privileges or procedures available to the public,” Tenn. Code Ann. § 4–5–
102(10), nor “statements concerning inmates of a correctional facility.” Tenn. Code Ann. § 4–5–
102(12)(vi).
As Defendants stated, the Revised Protocol is not subject to the requirements of the UAPA,
because the Revised Protocol is not a rule as defined by the UAPA. See Tenn. Code Ann. § 4–5–
102(10), 4-5-102(12). The protocol instead fits squarely within two exceptions to the meaning of
“rule”: statements concerning only the internal management of state government and not affecting
private rights privileges or procedures available to the public, Tenn. Code Ann. § 4–5–102(10)(A),
and statements concerning inmates of a correctional or detention facility, Tenn. Code Ann. § 4–5–
102(12)(vi).47
47 Plaintiff attempts to counter this by pointing to a Tennessee Attorney General opinion, wherein the
Tennessee Attorney General provided that “[c]hanges to the [Tennessee Corrections Institute (“TCI”)]
minimum standards for local correctional facilities must comply with the rule-making provisions of the
UAPA.” See Tenn. Op. Att’y Gen. No. 11-63 at 1 (Aug. 26, 2011). In that opinion, the Tennessee Attorney
General was addressing the “TCI’s establishment of minimum standards for local correctional facilities
implements or prescribes law,” and found that those standards “triggers the UAPA due process
requirements of notice and hearing to those whose relationships with the government will be impacted by
the adoption of such standards.” Id. at 3.
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Further, even if the Court found Plaintiff’s argument persuasive, this Court “must defer”
to a particular state’s “interpretation[] of [its] law.” (Doc. No. 28 at 33) (quoting Chapman v.
Brentlinger Enters., 124 F.4th 382, 406 (6th Cir. 2024)). And it is evident to this Court from the
statutory language of Tennessee Code Annotated of § 4–5–102(10), 4-5-102(12), and the
interpretation of that language by Tennessee courts, what the State intended to qualify as a “rule”
within the meaning of the UAPA.
Therefore, the Court will grant the Motion as to Count XI.
(G) This Court Declines to Exercise Supplemental Jurisdiction Over All of Plaintiff’s
State Law Claims.
Finally, the Court addresses Plaintiff’s remaining state law claims, which Plaintiff vexingly
jumbled together within his several federal claims, generally alleging both violations of federal
law and state law (the Tennessee Constitution or Tenneessee statutes) in the same count.
Regrettably, the Complaint says nothing about the basis for subject-matter jurisdiction over the
state-law claims. 	Perceiving no basis for original (i.e., diversity) jurisdiction over the state-law
claims, the Court assumes that Plaintiff’s purported basis for subject-matter jurisdiction over these
claims is supplemental jurisdiction under 28 U.S.C. § 1367.48 The Court takes no issue with the
fact that supplemental jurisdiction exists in this case.
48 That statute provides, in pertinent part:
Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal
statute, in any civil action of which the district courts have original jurisdiction, the district
courts shall have supplemental jurisdiction over all other claims that are so related to claims
in the action within such original jurisdiction that they form part of the same case or
controversy under Article III of the United States Constitution. . . .
28 U.S.C. § 1367(a).
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A district court may decline to exercise supplemental jurisdiction over claims if: (1) the
state claims raise “novel or complex” issues of State law, (2) those claims substantially
predominate over the claims where federal original jurisdiction exists, (3) the district court has
dismissed all claims over which it has original jurisdiction, or (4) “exceptional circumstances,”
offer “compelling reasons for declining jurisdiction.” 28 U.S.C. § 1367(c). As relevant here, then,
the court can dismiss claims falling solely within its supplemental jurisdiction, once it has
dismissed all claims over which it has original jurisdiction (generally meaning federal claims or
state-law claims where there is diversity of citizenship).49 28 U.S.C. § 1367(c)(3). See also
Martinez v. City of Cleveland, 700 F. App'x 521, 523 (6th Cir. 2017) (holding that upon dismissal
of the plaintiff’s federal claims, the federal court will not retain jurisdiction over the state law
claims because, pursuant to 28 U.S.C. § 1367(c)(3), there is a “strong presumption in favor of
declining to exercise jurisdiction over supplemental state-law claims after dismissing federal
anchor claims[.]”).
Here, the Court perceives no basis for overcoming the “strong presumption” of declination
of supplemental jurisdiction. Accordingly, the Court declines to exercise supplemental jurisdiction
over the state-law claims alleged by Plaintiff via the Complaint, and those claims will be dismissed
without prejudice.
49 In some cases, a court has original (subject-matter) jurisdiction over state-law claims under 28 U.S.C. §
1332, which provides for original jurisdiction where there is so-called diversity of citizenship. But this is
not one of those cases. Plaintiff does not allege diversity of citizenship and instead alleges original
jurisdiction only in the form of federal-question jurisdiction under 28 U.S.C. § 1331. (Doc. No. 1 at ¶ 6).
Jurisdiction over all of Plaintiffs’ state-law claims is premised solely on supplemental jurisdiction, and not
original jurisdiction.
Relatedly, the Court makes the general observation that if a federal court lacks original (subject-matter)
jurisdiction over a claim, then that claim must be a state-law claim (because if it was a federal claim, the
Court would have jurisdiction over it)—but not all state-law claims are ones of which a federal court lacks
original jurisdiction (because a federal court does have original jurisdiction over state-law claims where
diversity of citizenship exists).
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CONCLUSION
The Court fully understands the basis for numerous concerns expressed in the Complaint
and Plaintiff’s briefing. But it cannot find that Plaintiff has a plausible claim to relief on any of his
counts. For the reasons provided herein, the Court will GRANT Defendants’ Motion (Doc. No.
27) in its entirety.50 An appropriate corresponding order will be entered separately.51
____________________________________
ELI RICHARDSON
UNITED STATES DISTRICT JUDGE
50 The Court is aware that Plaintiff has embedded in his Complaint a request to stay his execution. (Doc.
No. 1 at 3-4) (“Plaintiff hereby moves this Court for an injunction staying his execution pending resolution
of the lawsuits in King v. Strada, et al., No. 3:18-cv-01234 (M.D. Tenn.), Middlebrooks v. Strada, et al.,
No. 3:19-cv01139 (M.D. Tenn.), and this challenge.”). If Plaintiff wishes to obtain a stay of execution, he
must move for it in a separate filing.
To obtain a stay of execution, Plaintiff cannot simply ask for it; he must satisfy a four-requirement test,
as he would when moving for an injunction: (1) a likelihood of success on the merits; (2) he will suffer
irreparable harm absent a stay; (3) the stay will not cause substantial harm to others; and (4) the stay would
serve the public interest. Workman v. Bell, 484 F.3d 837, 839 (6th Cir. 2007). A stay of execution is an
equitable remedy. Hill, 547 U.S. at 584. A stay is not available as a matter of right, and the Court must be
sensitive to the State's strong interest in enforcing its criminal judgments without undue interference from
the federal court. Id.
51 The Complaint takes the metaphorical kitchen-sink approach, alleging (often in the most cursory of
fashions) a dizzying array of constitutional violations. As a result, it would be easy for someone to claim
that some kind of claim went unaddressed herein. The Court has done its level best to address herein all of
what it perceives to be Plaintiff’s claims (or at least those they were raised in the Complaint to a sufficient
extent as to warrant resolution by the Court).
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