                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 10a0688n.06

                                           No. 10-6196

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


STEPHEN MICHAEL WEST,                                    )                         FILED
                                                         )                      Nov 04, 2010
          Petitioner-Appellant,                          )                 LEONARD GREEN, Clerk
                                                         )
v.                                                       )
                                                         )
GAYLE RAY, in her official capacity as Tennessee’s       )
Commissioner of Correction; RICKY BELL, Warden,          )
in his official capacity as Warden of Riverbend          )
Maximum Security Institution; DAVID MILLS, in his        )    On Appeal from the United States
official capacity as Deputy Commission of Tennessee      )    District Court for the Middle
Department of Correction; MARK LUTTRELL,                 )    District of Tennessee
Director, in his official capacity as Assistant          )
Commissioner of Operations; JOHN DOE, Physicians         )
1-100; JOHN DOE, Pharmacists 1-100; JOHN DOE,            )
Medical Personnel 1-100; JOHN DOE, Executioners          )
1-100; JOHN DOES, 1-100; REUBEN HODGE,                   )
Warden,                                                  )
                                                         )
          Respondents-Appellees.                         )



Before:          BOGGS, NORRIS, and MOORE, Circuit Judges.

          BOGGS, Circuit Judge. Stephen Michael West is scheduled to be executed by the State of

Tennessee on November 9, 2010. West challenged the state’s lethal injection protocol in district

court, and we affirm the district court’s dismissal of his complaint.

                                                  I

          On August 19, 2010, West filed a complaint in district court and made two categories of

claims. First, West brought a number of specific claims under 42 U.S.C. § 1983, all alleging that
No. 10-6196
West v. Ray, et al.

Tennessee's lethal injection protocol violates his rights under the Eighth and Fourteenth

Amendments. Second, West requested a declaratory judgment that the state's lethal injection

protocol violates the Federal Controlled Substances Act and the Federal Food, Drug, and Cosmetic

Act.

        On September 23, 2010, Defendants filed a motion to dismiss pursuant to Rule 12(b)(6) of

the Federal Rules of Civil Procedure. Defendants argued that West lacked standing to challenge

Tennessee’s lethal injection protocol because, on February 21, 2001, he signed an affidavit in which

he chose to be executed by electrocution. Defendants also argued that West’s complaint was barred

by the statute of limitations.

        On September 24, 2010, the district court dismissed West's § 1983 claim. In reaching its

conclusion, the court did not consider Defendants’ standing argument because that argument relied

on the existence of an affidavit which was not part of the complaint. Instead, the court considered

only the statute-of-limitations issue in disposing of the claim. Tennessee has a one-year statute of

limitations for civil actions brought under federal civil-rights statutes and the district court applied

this court's decision in Cooey II to hold that West's petition was time-barred by the Tennessee statute.

See Cooey v. Strickland (Cooey II), 479 F.3d 412 (6th Cir. 2007); TENN . CODE § 28-3-104(a)(3).

        West made two arguments against this conclusion. First, West argued that the Supreme

Court's decision in Baze v. Rees, 553 U.S. 35 (2008), abrogated Cooey II. The district court rejected

this argument, noting that this court has continued to apply Cooey II after Baze, and that in Getsy v.

Strickland, this court rejected the argument that Baze affects Cooey II. See Getsy, 577 F.3d 309, 312



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(6th Cir. 2009. Second, West argued that Cooey II was wrongly decided. The district court rejected

this argument as well, noting that it was bound by Cooey II.

        The district court also dismissed West's declaratory judgment claim and, accordingly,

dismissed the case. West filed this timely appeal on September 29, 2010. In his brief, West argues

only that the district court erred in dismissing his § 1983 claim. Appellant's Br. at 2. The dismissal

of West's declaratory judgment claim is therefore not at issue in this appeal. Marks v. Newcourt

Credit Group, Inc., 342 F.3d 444, 462 (6th Cir. 2003) (“An appellant waives an issue when he fails

to present it in his initial briefs before this court.”).

        Since West filed his appeal, the parties have taken a number of steps that have combined to

complicate the procedural history of this case. Accordingly, a step-by-step summary of those steps

is necessary.

        On October 6, 2010, West filed his opening appellate brief, in which he argued that Cooey

II was not good law.

        On October 12, West executed a rescission of his 2001 affidavit and presented that rescission

to the prison warden. The warden apparently did not accept the validity of West’s rescission.

        The next day, Defendants filed their appellate brief, in which they responded to West’s Cooey

II arguments and also raised two alternate grounds for dismissal, that West lacks standing to

challenge the lethal injection protocol because he chose to be electrocuted, and that binding

precedent has established the constitutionality of Tennessee’s lethal injection protocol.

        That same day, West requested that the Tennessee Department of Corrections (“TDOC”)

confirm that West’s execution was to be carried out by electrocution.

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         On October 15, TDOC confirmed that it considered his 2001 affidavit to be in full effect.

         On October 18, West filed suit in state court, challenging the validity of the 2001 affidavit.

         That same day, West filed his reply brief, in which he argued that this appeal must be held

in abeyance until the state court resolved the affidavit issue, that the last-minute confusion

demonstrates that Cooey II was wrongly decided, and that this case is distinguishable from the cases

that Defendants rely on. West also filed a motion in this court, requesting that we hold this case in

abeyance and stay his execution, pending the resolution of the state court proceedings.

         On October 20, Defendants reversed course and accepted West’s rescission of the affidavit

and stated that, because of West’s rescission, his execution will be carried out by lethal injection.

As a result, West withdrew his state court challenge to the validity of the affidavit.

         On October 26, West filed another motion in this court. West moved to withdraw his

previous motion and, more significantly, requested that we vacate the district court’s order for lack

of jurisdiction and remand with instructions to dismiss without prejudice so that he can file his claim

again.

         West’s briefs and motions suggest that he relies on the following multi-step argument. First,

because the state intended to electrocute him, in compliance with his 2001 affidavit, West lacked

standing to bring his challenge to the state’s lethal injection protocol. Second, because he lacked

standing, the district court lacked jurisdiction to dismiss his complaint on statute-of-limitations

grounds. And because the district court lacked jurisdiction to dismiss his complaint, this court must

vacate that dismissal. Third, because Defendants accepted his rescission of the 2001 affidavit on

October 20, he now–for the first time–has standing to challenge the state’s lethal injection protocol.

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West v. Ray, et al.

And fourth, because he now has standing, this court should order the district court to dismiss his

claim without prejudice so that he can refile the same claim now that he has standing to do so and,

presumably, Cooey II will no longer bar his complaint. We disagree with this theory of the case and

affirm the decision of the district court.

                                                     II

        We hold that the district court properly exercised its jurisdiction to dismiss West’s complaint.

Although a district court–like all federal courts–must first determine its own jurisdiction before

proceeding to the merits, the scope of the required jurisdictional inquiry may be limited by the

procedural posture of the case. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). When

deciding a 12(b)(6) motion to dismiss, the court must accept all allegations in the pleadings as true,

and in this case, West’s pleading–which repeatedly alleges that Defendants plan to execute him by

lethal injection– clearly supports a finding that he had standing to challenge the protocol. Ibid.;

Kardules v. City of Columbus, 95 F.3d 1335, 1346-47 (6th Cir. 1996) (holding that, when

determining whether standing exists when considering a 12(b)(6) motion to dismiss, the court “must

accept as true all material allegations of the complaint”) (citing Warth v. Seldin, 422 U.S. 490, 501

(1975)); Complaint, R. 1 at 1 (“Stephen Michael West is a condemned inmate scheduled to be

executed by lethal injection . . . .”); id. at 10 (“The State of Tennessee . . . seeks to execute Mr. West

. . . by lethal injection.”). Accordingly, the district court properly exercised its jurisdiction to dismiss

West’s complaint pursuant to Rule 12(b)(6). If the law were otherwise–that a district court were

required to resolve conflicting outside evidence to ensure that it had jurisdiction every time it ruled

on a Rule 12(b)(6) motion–then the economy provided by Rule 12(b)(6) would be entirely lost.

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West v. Ray, et al.

        Further, even if the district court should have considered the entire record, there was–and

remains–insufficient evidence in the record to conclude that West lacked standing to challenge the

lethal injection protocol. Although Defendants maintained that West’s 2001 affidavit was valid,

West argued otherwise. Although the point is now moot as Defendants have since accepted West’s

rescission, the state court never had the opportunity to determine whether the affidavit did, in fact,

remain valid. Accordingly, there is no factual basis to support a conclusion that, even considering

the entire record, the district court was without jurisdiction to dismiss West’s complaint. And

significantly, there is also no clear legal basis to support such a conclusion, as this circuit has never

held that a death row inmate lacks Article III standing to challenge a particular method of execution

where he has chosen an alternative method. It is not obvious that such a holding would be correct,

and in any case, we need not decide that issue here. But see Fierro v. C.A. Terhune, 147 F.3d 1158,

1160 (9th Cir. 1998) (holding that an inmate lacks standing to challenge a method of execution if

he has elected to be executed by another method).

                                                   III

        The district court properly applied Cooey II to dismiss West’s complaint. Cooey II ruled that

the accrual date for method-of-execution claims is when the inmate “knew or should have known

[of the method of execution] based upon a reasonable inquiry, and could have filed suit and obtained

relief,” which will ordinarily be the date of conclusion of direct review. 479 F.3d at 421-22.

Because Cooey’s direct review had concluded before the method of execution was established, the

court held that an alternative accrual date was required, and that the alternative date could have been

either the date the method of execution was established or the date that the method of execution

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West v. Ray, et al.

became the sole method. Id. at 422. The court did not decide which of these two possibilities was

the correct alternative accrual date because Cooey's complaint would have been time-barred either

way. Ibid.

       Here, direct review of West’s death sentence and underlying conviction concluded on June

25, 1990, when the Supreme Court denied West's petition for a writ of certiorari. West v. Tennessee,

497 U.S. 1010 (1990). Tennessee adopted lethal injection as a method of execution on May 18,

1998. TENN . CODE § 40-23-114; 1998 TENN . PUB. ACTS 982. Two years later, Tennessee adopted

lethal injection as the presumptive method of execution, on March 30, 2000. TENN . CODE §

40-23-114; 2000 TENN . PUB. ACTS 614. See Henley v. Little, 308 F. App’x 989 (6th Cir. 2009).

       Applying Cooey II, the district court correctly concluded that West's complaint was

time-barred. Because West's direct review concluded before Tennessee established lethal injection

as a method of execution, that date can not be the accrual date. Cooey II, 479 F.3d at 422. Here, the

two alternative accrual dates are May 18, 1998, when Tennessee established lethal injection as a

method of execution, and March 30, 2000, when Tennessee established lethal injection as its

presumptive method of execution. Henley, 308 F. App’x at 989. And, as was the case in Cooey II,

this panel need not decide which of these possible alternative dates was the accrual date here, as

either way, West's complaint is time-barred by Tennessee’s one-year statute of limitations.1


       1
         The dissent’s timeliness analysis, whatever its wisdom, is simply not that established by
Cooey II. Although Cooey II and Getsy both acknowledge the possibility that a revised protocol
could reset the accrual date, both held that–at the very least–the plaintiff must make some showing
that the “protocol modifications might create undue suffering.” Getsy, 577 F.3d at 313; Cooey II,
479 F.3d at 424. West made no claim that the 2007 modifications–or any other change in
practice–somehow related to his “core complaints” and is therefore in the exact same position as

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       The district court also correctly concluded that Baze did not abrogate Cooey II, as this court

has already rejected that argument. In Getsy v. Strickland, this court held that “Baze’s freshly

clarified standards” do not trigger a new accrual date because

       in determining when the cause of action accrues in § 1983 cases, we look to the event
       that should have alerted the typical lay person to protect his or her rights. Cooey II
       held, rightly or wrongly, that the relevant date is the later of either (1) the conclusion
       of direct review . . . , or (2) . . . when Ohio adopted lethal injection as the sole method
       of execution. Nothing in Baze gives us cause to question Cooey II's determination
       of when the statute-of-limitations clock begins to tick.

577 F.3d at 312 (internal quotations and citations omitted). In his brief, West argues that the district

court's reliance on Getsy was misplaced. West notes that, in Getsy, the court rejected the appellant's

argument that Baze created a new cause of action, and that here, West does not make that same

argument. Appellant's Br. at 13-14. True enough. But the Getsy court also held that Baze did not

disrupt Cooey II’s accrual test. 577 F.3d at 312. West makes no attempt to address this aspect of

the Getsy decision–upon which the district court explicitly relied–and, like the district court, we are




were Cooey and Getsy. See Cooey II, 479 F.3d at 424. And, of course, even if he had made such
a showing and we were to hold that the accrual date reset to the date of the modifications, then the
one-year statute of limitations would have still expired. Cf. Workman v. Bredesen, 486 F.3d 896,
899 (6th Cir. 2007) (holding that Tennessee’s 2007 protocol modifications were not material and do
not reset the statute of limitations). The dissent goes much further than the possibility suggested by
Cooey II and Getsy, however, and argues that the accrual date should reset not to the date of the
revisions, and not even to the date of the first troubling autopsy, but to the date of the second
troubling autopsy. This approach looks to the strength of the evidence in support of a claim, and not
when direct review concluded or the method was established–thereby forming the claim–which was
this court’s holding in Cooey II. 479 F.3d at 421-22. Further, the “death by suffocution” claim is
not new. See Workman, 486 F.3d at 925-26. Because a plaintiff may always be able to point to a
new piece of evidence in support of a preexisting claim, as West does here, the dissent’s attempted
distinction would seriously undermine Cooey II’s holding in most cases.
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bound by the Getsy panel’s decision. Similarly, we can not consider West’s argument that Cooey

II was wrongly decided. Getsy, 577 F.3d at 314; Wilson v. Rees, 620 F.3d 699, 701 (6th Cir. 2010).

                                                   IV

        We further hold that a dismissal without prejudice would serve no purpose here, as even if

West could demonstrate that he lacked standing to challenge the protocol from the time he executed

his affidavit on February 21, 2001, until October 20, 2010, when Defendants accepted his rescission

of the affidavit, the statute of limitations would still bar his complaint. Whether or not West lacked

standing–due to his own actions–simply does not speak to the question of when the statute of

limitations accrued, or once it accrued, when time expired.

        West argues that he lost his standing to challenge the lethal injection protocol when he chose

to be executed by electrocution in 2001, and, when he revoked that selection less than three weeks

before his execution date, his standing sprang back to life. We need not decide whether this theory

of springing standing accurately reflects this law in the circuit, but we do hold that any related theory

of a springing statute of limitations is foreclosed by Cooey II.

        Cooey II held that the statute of limitations clock begins ticking on the date of conclusion of

direct review or, if later, when the method of execution is established. 479 F.3d at 422. An inmate

cannot stop or reset that clock by later choosing an alternate method of execution, as such a choice

does not impact the question of whether, on the accrual date, he knew or should have known whether

the method of execution was in existence and could have chosen to seek relief.2 See ibid. Here, the


        2
        Even if West’s choice in 2001 stripped him of standing to challenge lethal injection, had he
wished to challenge the constitutionality of lethal injection, he could have simply not chosen to be
executed by electrocution and proceeded with his suit. Therefore, West “could have filed suit and
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statute of limitations on a § 1983 challenge to Tennessee’s lethal injection protocol began to accrue

either on May 18, 1998–in which case West’s claim became time-barred nearly two years before he

selected electrocution as his method of execution–or on March 30, 2000, when lethal injection

became Tennessee’s presumptive method of execution. As in Cooey II, we need not decide which

is the correct accrual date, as even if the later date is used, then whatever choices West made

subsequent to that date cannot change the fact that the statute of limitations had already begun to

accrue. See Getsy, 577 F.3d at 313-14 (holding that post-accrual vacation and reinstatement of

conviction “is irrelevant to the accrual of Getsy’s § 1983 claim”). Therefore, West’s suit became

time-barred no later than March 30, 2001, five weeks after West elected to be executed by

electrocution. Because West’s complaint is time-barred even if his theory of standing is accepted,

his request for a dismissal without prejudice would serve no purpose.

                                                  V

       For the foregoing reasons, we AFFIRM the district court’s dismissal of West’s complaint and

DENY West’s request for a dismissal without prejudice.




obtained relief” within one year of the accrual date. Ibid. That he instead chose a path that may have
stripped him of standing to challenge the protocol does not speak to the question of whether he could
have–had he chosen to do so–filed suit and obtained relief.
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       KAREN NELSON MOORE, Circuit Judge, dissenting. Until this year, it was impossible

for West to have learned that Tennessee’s lethal-injection protocol has become, in practice, death

by suffocation. His claim is timely even under the unduly restrictive standard articulated in Cooey

II v. Strickland, 479 F.3d 412 (6th Cir. 2007). Because West’s claim is timely, I respectfully dissent.

       After holding that the Cooey II time bar remained in effect following the Supreme Court’s

decision in Baze, this court in Getsy proceeded to analyze the Ohio “protocol modifications” that

Getsy alleged would “create undue suffering.” Getsy v. Strickland, 577 F.3d 309, 313 (6th Cir.

2009). That analysis was not superfluous. Developments in execution protocol or practice after the

Cooey II dates can be the basis for later method-of-execution claims. We held for the Ohio warden

because “Getsy [did] not ma[k]e a prima facie showing that the . . . modifications will likely subject

him to extreme pain based on . . . new evidence.” Id.

       West has accomplished what Getsy did not. After Tennessee’s protocol change, the autopsy

of Phillip Workman revealed inadequate post-mortem sodium thiopental levels. This single

occurrence might have been “an isolated mishap alone,” which “does not give rise to an Eighth

Amendment violation.” Baze v. Rees, 553 U.S. 35, 50 (2008) (Roberts, J., plurality op.). But on

March 10, 2010, the state released the autopsy results for its next-executed inmate, Steven Henley.

Henley, too, had deficient sodium thiopental levels, giving West a basis to allege that, as

implemented, the lethal-injection protocol violates the Eighth Amendment. Until Henley’s autopsy

confirmed the problem, West did not have a cause of action because “the conditions presenting the

risk” of suffocation were not “sure or very likely to cause serious illness and needless suffering.”

Baze, 553 U.S. at 50. And prior to the autopsy, “the typical lay person,” Getsy, 577 F.3d at 312,

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West v. Ray, et al.

could not have been alerted that the standard three-drug cocktail would suffocate its recipients. The

key feature of this case is that West has alleged new evidence showing that the practice of the lethal-

injection method in Tennessee has caused extreme pain and suffering, constituting a violation of the

Eighth Amendment.

        That Getsy left the Cooey II accrual test intact is of no consequence to this case. Even under

Cooey II, West’s challenge is timely because he could not have challenged the practice of the lethal-

injection method until evidence became available that it constituted cruel and unusual punishment.

This approach is fully consistent with Cooey II and, indeed, is required by the Eighth Amendment.

        West should prevail under Cooey II. He has challenged the constitutionality of death by

suffocation, the possibility of which was unknown both at the close of direct review and when lethal

injection became the presumptive method of execution in Tennessee. The majority improperly

requires death-row inmates to challenge the constitutionality of every method of execution that the

state may use—far in advance of newly developing evidence that the method of execution in practice

results in cruel and unusual punishment in violation of the Eighth Amendment. I respectfully dissent

from this incorrect application and extension of Cooey II.

        For these reasons, I would grant a stay of execution and also dissent from the majority’s

denial of a stay.




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