UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ DONALD RAY MIDDLEBROOKS, │ Plaintiff-Appellant, │ > No. 20-5419 │ v. │ │ TONY PARKER, in his official capacity as Tennessee’s │ Commissioner of Correction; TONY MAYS, in his │ official capacity as Warden of Riverbend Maximum │ Security Institution, │ Defendants-Appellees. │ ┘

Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 3:19-cv-01139—William Lynn Campbell, Jr., District Judge.

Argued: February 9, 2021

Decided and Filed: October 15, 2021

Before: MOORE, CLAY, and WHITE, Circuit Judges.

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COUNSEL ARGUED: Richard Lewis Tennent, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE MIDDLE DISTRICT OF TENNESSEE, Nashville, Tennessee, for Appellant. Miranda Jones, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee. ON BRIEF: Richard Lewis Tennent, Kelley J. Henry, James O. Martin, III, Amy D. Harwell, Katherine Dix, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE MIDDLE DISTRICT OF TENNESSEE, Nashville, Tennessee, for Appellant. Miranda Jones, Scott Sutherland, Rob Mitchell, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee. No. 20-5419 Middlebrooks v. Parker, et al. Page 2

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OPINION _________________

HELENE N. WHITE, Circuit Judge. Donald Ray Middlebrooks appeals the district court’s order dismissing, as barred by res judicata, his 42 U.S.C. § 1983 action asserting facial and as-applied challenges to the constitutionality of Tennessee’s lethal-injection protocol. We AFFIRM IN PART, REVERSE IN PART, and REMAND.

I.

In 1989, a jury convicted Middlebrooks of felony murder and aggravated kidnapping and sentenced him to death. See State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992). His death sentence was vacated by the Tennessee Supreme Court, id. at 347, but on remand, the jury resentenced him to death. See State v. Middlebrooks, 995 S.W.2d 550 (Tenn. 1999). After a lengthy procedural history that is not relevant to this appeal, Middlebrooks’s conviction and death sentence were upheld on direct and collateral review. See Middlebrooks v. Carpenter, 843 F.3d 1127, 1129-34 (6th Cir. 2016) (setting forth the procedural history in Middlebrooks’s case). In this suit, Middlebrooks challenges Tennessee’s chosen method for carrying out his death sentence.

When Middlebrooks was resentenced to death, electrocution was Tennessee’s only method of execution. In 2000, Tennessee adopted lethal injection as the default method of execution. Tenn. Code § 40-23-114 (2000). Under current law, electrocution is still an option for execution, but only if (1) an inmate sentenced to death before 1999 chooses execution by electrocution; (2) lethal injection is declared unconstitutional; or (3) the Commissioner of the Tennessee Department of Correction (TDOC) certifies that a necessary lethal-injection ingredient is unavailable. Tenn. Code § 40-23-11