RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0378p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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BILLY R. IRICK,
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Plaintiff-Appellant,
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No. 10-6436
v.
,
>
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GAYLE RAY, in her official capacity as
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Tennessee’s Commissioner of Correction;
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RICKY J. BELL, in his official capacity as
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warden of Riverbend Maximum Security
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Institution; REUBEN HODGE, Warden, in his
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official capacity as Deputy Commissioner of
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Tennessee Department of Correction; MARK
H. LUTTRELL, JR., in his official capacity as -
Assistant Commissioner of Operations; JOHN -
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DOE PHYSICIANS 1-100; JOHN DOE
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PHARMACISTS 1-100; JOHN DOE MEDICAL
PERSONNEL 1-100; JOHN DOE EXECUTIONERS -
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Defendants-Appellees. -
1-100; JOHN DOES 1-100,
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Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 10-01004—Todd J. Campbell, Chief District Judge.
Decided and Filed: December 15, 2010
Before: BATCHELDER, Chief Judge; SILER and GILMAN, Circuit Judges.
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COUNSEL
ON BRIEF: C. Eugene Shiles, SPEARS, MOORE, REBMAN & WILLIAMS,
Chattanooga, Tennessee, for Appellant. Mark A. Hudson, OFFICE OF THE
TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellees.
BATCHELDER, C.J., delivered the opinion of the court, in which SILER, J.,
joined. GILMAN, J. (pp. 4–5), delivered a separate concurring opinion.
1
No. 10-6436 Irick v. Ray, et al. Page 2
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OPINION
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ALICE M. BATCHELDER, Chief Judge. Plaintiff-Appellant Billy Ray Irick,
a Tennessee death-row prisoner represented by counsel, appeals the district court’s
judgment denying his 42 U.S.C. § 1983 claim alleging that the state of Tennessee’s
lethal injection execution protocol violates the Eighth Amendment’s prohibition against
cruel and unusual punishment.1 The district court dismissed Plaintiff’s claim, finding
that it is time-barred by the applicable statute of limitations. For the reasons stated in
the district court’s opinion, we AFFIRM the judgment of the district court.2
In Cooey v. Strickland (Cooey II), 479 F.3d 412, 421-22 (6th Cir. 2007), reh’g
denied en banc, 489 F.3d 775 (6th Cir. 2007), we held that the statute of limitations for
a constitutional challenge to the method of execution, brought under 42 U.S.C. § 1983,
begins to run either 1) upon the conclusion of direct review in the state court or the
expiration of time for seeking such review, or 2) when the particular method of
execution is adopted by the state. We have since reaffirmed Cooey II’s holding and
clarified that it remains the law of this circuit even after the Supreme Court’s holding in
Baze v. Rees, 553 U.S. 35 (2008). Getsy v. Strickland, 577 F.3d 309, 312 (6th Cir.
2009). Furthermore, we have declined to broaden Cooey II’s analysis to allow for the
accrual date to reset to the date of any new piece of evidence in support of a preexisting
claim. See West v. Ray, No. 10-6196, 2010 WL 4576585, at *4 n. 1 (6th Cir. Nov. 4,
2010).
1
Plaintiff raised several claims in the district court. In addition to his § 1983 claim, he alleged
a due process and equal protection violation, and he sought a declaratory judgment that the state of
Tennessee’s lethal injection protocol violates the Federal Controlled Substances Act, 21 U.S.C. §§ 801,
et. seq. On appeal, Plaintiff challenges only the district court’s determination that his § 1983 claim is time-
barred. We therefore do not address the other aspects of the district court’s judgment.
2
We are aware that there has been a recent flurry of activity in the Tennessee state courts which
pertains to Plaintiff’s pending execution. See Tennessee v. Irick, No. 24527 (Tenn. Nov. 29, 2010). None
of those proceedings is relevant to the single issue before us in this appeal—whether Plaintiff’s § 1983
claim is time-barred—and we therefore do not discuss those proceedings here.
No. 10-6436 Irick v. Ray, et al. Page 3
The district court properly applied our analysis in Cooey II to determine that the
statute of limitations began to run either in 1989 when Plaintiff’s direct review process
was final, or in 2000 when lethal injection became the presumptive method of execution
in Tennessee. Regardless of which date we use, Plaintiff’s claim is time-barred. In
Tennessee, civil actions for compensatory damages or injunctive relief brought under the
federal civil rights statutes must be commenced within one year of the accrual of the
cause of action. Tenn. Code. Ann. § 28-3-104(a)(3); Cox v. Shelby State Cmty. Coll., 48
F. App’x 500, 506-07 (6th Cir. 2002). Plaintiff brought the current action on October
25, 2010, more than one year after his cause of action accrued. The statute of limitations
therefore bars review of his § 1983 claims.
Accordingly, we affirm the judgment of the district court.
No. 10-6436 Irick v. Ray, et al. Page 4
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CONCURRENCE
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RONALD LEE GILMAN, concurring. Constrained by the rule announced in
Cooey v. Strickland, 479 F.3d 412, 421-22 (6th Cir. 2007) (Cooey II), I reluctantly
concur in the lead opinion. I write separately, however, to express my continuing belief
that Cooey II was wrongly decided. Irick alleges that the state of Tennessee’s lethal-
injection protocol violates the Eighth Amendment’s prohibition against cruel and
unusual punishment because the current protocol—even if properly administered—has
become death by suffocation while the prisoner is insufficiently anesthetized. As a
practical matter, Irick’s argument was not viable until evidence became available that
substantiated the claim, which did not occur until March 10, 2010. Judge Moore’s
dissent in West v. Ray, No. 10-6196, 2010 WL 4576585, at *6 (6th Cir. Nov. 4, 2010)
(unpublished opinion), explains why:
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, 128 S. Ct. 1520, 170 L. Ed. 2d 420 (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, 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.
(Emphases in original.)
No. 10-6436 Irick v. Ray, et al. Page 5
Irick’s plausible claim is thus foreclosed by the rigid—and in my opinion
unrealistic—rule on when the statute of limitations begins to run in these cases. But
because Cooey II is the governing law in this circuit, I have no choice but to concur.