                                           No. 18-6145
                                                                                       FILED
                                                                                 Oct 31, 2018
                           UNITED STATES COURT OF APPEALS                   DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT


EDMUND ZAGORSKI,                                      )
                                                      )
       Plaintiff-Appellant,                           )
                                                      )
v.                                                    )
                                                      )               ORDER
BILL HASLAM, in his official capacity as              )
Governor; TONY PARKER, in his official                )
capacity as Commissioner of Tennessee                 )
Department of Corrections; TONY MAYS, in his          )
official capacity as Warden of Riverbend              )
Maximum Security Prison,                              )
                                                      )
       Defendants-Appellees.                          )
                                                      )


       BEFORE: COLE, Chief Judge; COOK and GRIFFIN, Circuit Judges.

       The plaintiff, Edmund Zagorski, is a Tennessee capital prisoner whose execution is

scheduled to proceed on Thursday, November 1, 2018, at 7:00 pm. He brought this prisoner civil

rights action challenging his imminent execution, pleading three counts: 1) that the state of

Tennessee has coerced him into choosing a cruel and unusual method of punishment, in violation

of the Eighth and Fourteenth Amendments; 2) that death in Tennessee’s electric chair is cruel

and unusual, in violation of the Eighth Amendment; and 3) that the state of Tennessee violates

his right to access the court by permitting only one attorney to be present and restricting that

attorney’s telephone access during the execution. In initial screening, the district court granted

Zagorski pauper status and dismissed Counts I and II as frivolous pursuant to 28 U.S.C.

§ 1915(e)(2). With respect to the third count, the district court directed the state to respond, and
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subsequently ordered that the execution not proceed unless the attorney-witness is provided

immediate access to a telephone during the time preceding and during the execution.

        The district court denied Zagorski’s motion to reconsider the dismissal of Counts I and II

and certified that judgment as final under Federal Rule of Civil Procedure 54(b). Zagorski

appealed and filed an emergency motion to stay his execution along with an appellate brief. The

state defendants respond in opposition to the motion to stay and, under extremely truncated

circumstances, have filed their appellee brief at the direction of this court. They have not cross-

appealed the district court’s order with respect to Count III. When presented with a situation

such as this, our rules permit us to address and decide the merits of a case on a motion to stay.

6th Cir. R. 22(c)(3)(B).

        The motion to stay the execution is governed by the usual injunctive criteria, in which the

court assesses four factors. Nken v. Holder, 556 U.S. 418, 434 (2009). The factors guiding the

court’s consideration are: (1) whether the movant has a likelihood of success on the merits; (2)

whether the movant will suffer irreparable harm in the absence of a stay; (3) whether the

requested stay will substantially injure other interested parties; and (4) where the public interest

lies.   Id.   The stay factors “are not prerequisites that must be met, but are interrelated

considerations that must be balanced together.” Serv. Emps. Int’l Union Local 1 v. Husted, 698

F.3d 341, 343 (6th Cir. 2012) (per curiam) (citation omitted).

        While the obvious harm weighs in Zagorski’s favor, it is not dispositive when there is no

likelihood of success on the merits of the challenge, and in execution protocol challenges,

likelihood of success is often the determinative factor. In re Ohio Execution Protocol Litig.

(Campbell v. Kasich), 881 F.3d 447, 449 (6th Cir. 2018). Here, there is no likelihood of success.
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       We have carefully reviewed the district court’s sua sponte dismissal of these claims,

Zagorski’s motion, and the parties’ respective briefing, and find this late-hour appeal to be

meritless. To prevail on his coercion claim (count I), Zagorski would have to show that he was

coerced to waive his constitutional right against electrocution—and a challenge to the

constitutionality of electrocution is precisely the one we are bound to conclude Zagorski waived.

See Stanford v. Parker, 266 F.3d 442, 462 (6th Cir. 2001) (“[W]e need not consider whether

electrocution is cruel and unusual punishment because, for that issue to be relevant, Stanford

would first have to waive it.”) (citing Stewart v. LaGrand, 526 U.S. 115 (1999)). His standalone

Eighth Amendment challenge to his electrocution (count II) fails for the same reason. Id.

       For these reasons, we deny the motion to stay the execution and affirm the district court’s

judgment.

       COOK, Circuit Judge, concurring. We review a district court’s dismissal under 28

U.S.C. § 1915(e)(2) de novo. Hill v. Lappin, 630 F.3d 468, 470 (6th Cir. 2010). A frivolous

complaint under Section 1915(e)(2) “lacks an arguable basis either in law or in fact.” Neitzke v.

Williams, 490 U.S. 319, 325 (1989).

       With respect to Count I of his complaint, Zagorski alleged that Tennessee “coerced and

compelled” him to choose between two unconstitutional choices: electrocution or lethal

injection. On its face, this presents exactly the sort of “clearly baseless” factual contention that

Section 1915(e) permits us to dismiss. Id. at 324–25. Tennessee’s lethal injection protocol

comports with what the Supreme Court blessed as constitutional in Glossip v. Gross, 135 S. Ct.

2726, 2739–40 (2015). See also In re Ohio Execution Protocol Litig., 881 F.3d 447, 449 (6th

Cir. 2018). Thus, Zagorski could not have been forced to choose “between two unconstitutional

choices.” Recognizing this, the district court correctly dismissed this count.
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       As to Count II, the district court noted that Stewart v. LaGrand, 526 U.S. 115 (1999),

foreclosed Zagorski from challenging the constitutionality of his chosen manner of execution.

Zagorski’s contention that Glossip altered LaGrand’s rule has “no arguable basis . . . in law” and

presents a similarly frivolous argument. Neitzke, 490 U.S. at 325.

       For these reasons, I would dismiss the appeal outright.



                                             ENTERED BY ORDER OF THE COURT




                                             Deborah S. Hunt, Clerk
