                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0069n.06

                                            No. 19-6135

                           UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

 NICHOLAS T. SUTTON,                                      )                    FILED
                                                          )                 Jan 31, 2020
         Plaintiff-Appellant,                             )             DEBORAH S. HUNT, Clerk
                                                          )
 v.                                                       )
                                                          )
                                                                  ON APPEAL FROM THE
 TONY PARKER, Commissioner of Tennessee                   )
                                                                  UNITED STATES DISTRICT
 Department of Correction, and TONY MAYS,                 )
                                                                  COURT FOR THE MIDDLE
 Warden of Riverbend Maximum Security                     )
                                                                  DISTRICT OF TENNESSEE
 Institution,                                             )
                                                          )
         Defendants-Appellees.                            )
                                                          )



BEFORE:        BOGGS, BATCHELDER, and KETHLEDGE, Circuit Judges.

       BOGGS, Circuit Judge.

       Nicholas Sutton, a death-row inmate at Tennessee’s Riverbend Maximum Security

Institution, appeals a district-court order dismissing his claim challenging Tennessee’s lethal-

injection protocol as unconstitutional under the Eighth Amendment. He contends that the district

court erred when it ruled that Abdur’Rahman v. Parker, 558 S.W.3d 606 (Tenn. 2018)—a case in

which the Tennessee Supreme Court held that the state’s lethal-injection protocol did not violate

the Eighth Amendment, and in which Sutton was a co-plaintiff—was entitled to preclusive effect

under the doctrine of res judicata. We affirm the district court’s order.

                         FACTUAL AND PROCEDURAL HISTORY

       A Tennessee jury convicted Sutton of first-degree murder for the January 15, 1985 killing

of Carl Estep, Sutton’s fellow inmate at Morgan County Regional Correctional Facility. The jury
No. 19-6135, Sutton v. Parker


sentenced Sutton to death based on three aggravating circumstances: (1) Sutton had previously

been convicted of one or more violent felonies (he was already serving a life sentence for

murdering his grandmother); (2) the murder was especially heinous, atrocious, or cruel; and

(3) Sutton committed the murder while he was in lawful custody. See State v. Sutton, 761 S.W.2d

763, 764, 767 n.2 (Tenn. 1988). The Tennessee Supreme Court affirmed his conviction and death

sentence. Id. at 770. Sutton then filed state and federal habeas petitions, both of which were

denied. See Sutton v. State, No. 03C01-9702-CR-00067, 1999 WL 423005, at *5 (Tenn. Crim.

App. June 25, 1999), perm. appeal denied (Tenn. 1999), and cert. denied, 530 U.S. 1216 (2000);

Sutton v. Bell, 645 F.3d 752, 754 (6th Cir. 2011), cert. denied, 566 U.S. 938 (2012).

        At the time that Sutton was sentenced to death, electrocution was the default method of

execution in Tennessee. See Tenn. Code Ann. § 40-23-114 (1982). In 2000, Tennessee replaced

electrocution with a lethal-injection protocol, which has since been modified several times.1 See

id. § 40-23-114(a). The original three-drug protocol involved the injection of successive doses of

sodium thiopental, pancuronium bromide, and potassium chloride. See Workman v. Bredesen, 486

F.3d 896, 902 (6th Cir. 2007), cert. denied, 550 U.S. 930 (2007). However, by 2011, sodium

thiopental had become unavailable after its “sole American manufacturer . . . was persuaded to

cease production of the drug.” Glossip v. Gross, 135 S. Ct. 2726, 2733 (2015). Tennessee thus

amended its protocol in 2013 to provide that inmates would be executed through the injection of a

lethal dose of a single drug: pentobarbital. West v. Schofield, 519 S.W.3d 550, 552 (Tenn. 2017),

cert. denied sub nom. West v. Parker, 138 S. Ct. 476 (2017), and Abdur’Rahman v. Parker, 138 S.

Ct. 647 (2018). In November 2013, Sutton and other death-row inmates filed suit in state court,


1
  Tennessee still permits an inmate who has been sentenced to death for an offense committed before January 1, 1999,
to elect to be executed by electrocution. See Tenn. Code Ann. § 40-23-114(b). On January 21, 2020, Sutton waived
his statutory right to be executed by lethal injection and has chosen to be executed by electrocution. This decision
does not moot this appeal because Sutton retains the ability to rescind his waiver. See Docket No. 14.

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No. 19-6135, Sutton v. Parker


challenging the constitutionality of the pentobarbital protocol. The court denied relief, and the

Tennessee Supreme Court affirmed. Id. at 572.

         In January 2018, Tennessee again revised its lethal-injection protocol after pentobarbital

became difficult to obtain following a decision by the Danish manufacturer of the drug to stop

selling it for use in executions. Glossip, 135 S. Ct. at 2733. The amended protocol retained the

pentobarbital option if the drug were available but also added a new three-drug protocol as a second

option, comprising successive doses of midazolam (a sedative), vecuronium bromide (a paralytic

agent), and potassium chloride (a heart-stopping agent). See Abdur’Rahman, 558 S.W.3d at 611.

         In February 2018, Sutton, along with thirty-two other death-row inmates, filed suit in

Tennessee chancery court, challenging the constitutionality of the state’s new midazolam-based

protocol. The plaintiffs’ second amended complaint, filed on July 3, 2018, identified pentobarbital

as an alternative that would reduce the risk of substantial pain and suffering posed by the

midazolam-based protocol. On July 5, 2018, Tennessee again amended its execution protocol to

eliminate the use of pentobarbital entirely, leaving the midazolam-based option as the “exclusive

method of execution by lethal injection in Tennessee.” Id. at 612. Following a ten-day trial, the

court dismissed the plaintiffs’ complaint, citing the lack of a feasible alternative method of

execution as required by the Supreme Court’s decision in Glossip.2 The Tennessee Supreme Court

affirmed. Id. at 625. This case is the basis upon which the district court concluded that Sutton’s

claims were precluded by res judicata.




2
  Glossip held that to succeed on an Eighth Amendment claim against a state’s execution protocol, a plaintiff must:
“(1) show that the intended method of execution is ‘sure or very likely to cause serious illness and needless suffering,’
and (2) ‘identify an alternative [method] that is feasible, readily implemented, and in fact significantly reduces a
substantial risk of severe pain.’” In re Ohio Execution Protocol Litig., 946 F.3d 287, 289 (6th Cir. 2019) (quoting
Glossip, 135 S. Ct. at 2737).

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No. 19-6135, Sutton v. Parker


       On November 3, 2018, Sutton and three other death-row inmates sued Tennessee again,

this time in federal court. They sought, in part, to enjoin the state from implementing the

midazolam-based protocol. The district court denied the plaintiffs’ request, holding that they had

failed to establish a likelihood of success on the merits. We affirmed the district court’s ruling.

Miller v. Parker, 910 F.3d 259, 260 (6th Cir. 2018) (order), cert. denied, 139 S. Ct. 399 (2018).

After one of Sutton’s co-plaintiffs was executed in December 2018, the district court severed the

suits of the remaining plaintiffs. On February 7, 2019, Sutton filed an amended complaint in his

(now separate) lawsuit, asserting seven grounds for relief. Tennessee filed a motion to dismiss the

amended complaint in its entirety. While the motion to dismiss was pending, this court decided

the appeal of one of Sutton’s former co-plaintiffs from his November 2018 suit—Stephen Michael

West. See West v. Parker, 783 F. App’x 508, 509 (6th Cir. 2019). West had also filed an amended

complaint in his case and had alleged essentially the same claims as Sutton. See id. at 509–10.

We affirmed the district court’s ruling that West’s claims were precluded by res judicata, as he was

“effectively seeking to relitigate the same issues that [the Tennessee Supreme Court in]

Abdur’Rahman decided.” Id. at 513. On September 5, 2019, the district court, relying heavily on

West v. Parker, concluded that res judicata precluded Sutton from relitigating his Eighth

Amendment claim and granted Tennessee’s motion to dismiss. This appeal followed.

                                           DISCUSSION

       Although the district court dismissed Sutton’s amended complaint in its entirety, Sutton

appeals only the court’s ruling on count three: that res judicata precluded his claim that Tennessee’s

midazolam-based protocol violated the Eighth Amendment.

       We review a district court’s dismissal of a complaint and its application of res judicata de

novo. See Buck v. Thomas M. Cooley Law Sch., 597 F.3d 812, 816 (6th Cir. 2010). “To survive a



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No. 19-6135, Sutton v. Parker


motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

       Res judicata, or claim preclusion, prevents parties from raising arguments that either have

been, or could have been, fully litigated in a prior legal proceeding. The doctrine does not presume

that the prior final judgment was right or just; rather, “[t]he primary purposes of the doctrine are

to promote finality in litigation, prevent inconsistent or contradictory judgments, conserve legal

resources, and protect litigants from the cost and vexation of multiple lawsuits.” Creech v.

Addington, 281 S.W.3d 363, 376 (Tenn. 2009). Under the Full Faith and Credit Act, 28 U.S.C. §

1738, federal courts must give the same preclusive effect to a state-court judgment as that judgment

would be entitled to in another court of that state. Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,

544 U.S. 280, 293 (2005); see also Abbott v. Michigan, 474 F.3d 324, 330 (6th Cir. 2007). Under

Tennessee law, a party asserting res judicata must demonstrate:

               (1) that the underlying judgment was rendered by a court of
               competent jurisdiction, (2) that the same parties or their privies were
               involved in both suits, (3) that the same claim or cause of action was
               asserted in both suits, and (4) that the underlying judgment was final
               and on the merits.

Jackson v Smith, 387 S.W.3d 486, 491 (Tenn. 2012) (citing Lien v. Couch, 993 S.W.2d 53, 56

(Tenn. Ct. App. 1998)). However, res judicata “does not prevent a re-examination of the same

question between the same parties where in the interval the facts have changed or new facts have

occurred which may alter the legal rights or relations of the litigants.” Creech, 281 S.W.3d at 381

(quoting Banks v. Banks, 77 S.W.2d 74, 76 (Tenn. Ct. App. 1934)). Once new facts emerge that

alter the legal rights at the heart of a case, the case can no longer be considered the “same” as the

one that occurred before.



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No. 19-6135, Sutton v. Parker


       Sutton contends that two new facts have emerged after the Tennessee Supreme Court

decided Abdur’Rahman that render the district court’s application of res judicata inappropriate.

First, an Office of Legal Counsel (OLC) opinion issued on May 3, 2019, concluded that the federal

Food and Drug Administration (FDA) does not have authority to regulate the importation of drugs

for use in executions. See Whether the Food and Drug Administration Has Jurisdiction Over

Articles Intended for Use in Lawful Executions, 43 Op. O.L.C. ___ (May 3, 2019), slip op., 2019

WL 2235666. Second, the federal government announced on July 25, 2019, that it intended to

resume executions, and that they were to be carried out with a one-drug pentobarbital injection.

See Federal Government to Resume Capital Punishment After Nearly Two Decade Lapse, D.O.J.

19-807 (July 25, 2019), 2019 WL 3338225. Sutton contends that, together, these facts indicate the

increased availability of pentobarbital and that, had the Abdur’Rahman court been aware of these

circumstances, its conclusion that pentobarbital was not a feasible alternative method of execution

may have been different.

       We disagree. The OLC opinion does not shift the regulatory landscape surrounding

pentobarbital so considerably as to permit Tennessee to obtain the drug through “ordinary

transactional effort,” as required by Glossip. In re Ohio Execution Protocol, 860 F.3d 881, 891

(6th Cir. 2017) (en banc), cert. denied sub nom. Otte v. Morgan, 137 S. Ct. 2238 (2017); see also

Abdur’Rahman, 558 S.W.3d at 623. The OLC opinion has no legal effect upon prior injunctions

issued by federal courts. See Comm. on Judiciary, U.S. House of Representatives v. Miers, 558 F.

Supp. 2d 53, 104 (D.D.C. 2008). Thus, a 2012 injunction affirmed by the U.S. Court of Appeals

for the District of Columbia Circuit that required the FDA to block the importation of another




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No. 19-6135, Sutton v. Parker


lethal-injection drug, sodium thiopental, remains in significant tension with the OLC opinion.3

See Beaty v. FDA., 853 F. Supp. 2d 30 (D.D.C. 2012), aff’d sub nom. Cook v. FDA., 733 F.3d 1

(D.C. Cir. 2013). There is no basis to conclude that the OLC opinion lifts the injunction or will

enhance Tennessee’s ability to procure pentobarbital for use in executions in the immediate future.

Furthermore, even if pentobarbital may be available for sale internationally, that would not ensure

that it will be made available for use in executions in Tennessee. The reason that pentobarbital

became difficult to obtain in the first place was because advocates had successfully lobbied the

drug’s manufacturer to stop selling it for use in executions. See Glossip, 135 S. Ct. at 2733.

Nothing about the OLC opinion or the federal government’s announcement changes this dynamic.

        Finally, in the evidentiary proceedings in state court, Sutton “offered no direct proof as to

availability” of pentobarbital and could not identify a single manufacturer of the drug that could

have provided it for use in executions at the time. Abdur’Rahman, 558 S.W.3d at 623–24. Neither

of the new facts proffered by Sutton changes this underlying reality, and we have held that failure

to show “evidence that the vendor [of a lethal-injection drug] would be willing to supply” the drug

for executions precludes a plaintiff from meeting the available-alternative prong of Glossip. See

In re Ohio Execution Protocol, 946 F.3d at 291. To succeed, Sutton must prove “more than just a

showing of hypothetical availability.” Abdur’Rahman, 558 S.W.3d at 623. He has not done so.

He has therefore failed to demonstrate how the new facts may have affected the state courts’ prior

adjudication of his Eighth Amendment claim. The district court properly invoked res judicata.

        We therefore AFFIRM the judgment of the district court.




3
 The 2012 injunction concluded that the FDA policy of permitting states to import sodium thiopental from foreign
manufacturers violated the Federal Food, Drug, and Cosmetics Act on the grounds that imported drugs were
unapproved and often misbranded. Beaty v. FDA., 853 F. Supp. 2d 30, 35–38 (D.D.C. 2012).

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