Cooey v. Kasich
| Decision Date | 08 July 2011 |
| Docket Number | 2:10–cv–27.,2:09–cv–823,2:09–cv–242,Case Nos. 2:04–cv–1156 |
| Citation | 801 F.Supp.2d 623 |
| Parties | Richard COOEY, et al., Plaintiffs, v. John KASICH, et al., Defendants.Brett Hartman, Plaintiff, v. John Kasich, et al., Defendants.Romell Broom, Plaintiff, v. John Kasich, et al., Defendants.Lawrence Reynolds, Plaintiff, v. John Kasich, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
OPINION TEXT STARTS HERE
David C. Stebbins, Allen L. Bohnert, Gregory William Meyers, Federal Public Defenders Office, S. Adele Shank, Columbus, OH, Michael J. Benza, Chagrin Falls, OH, Timothy F. Sweeney, Cleveland, OH, for Plaintiffs.
Charles L. Wille, Thomas E. Madden, Justin M. Lovett, Office of the Ohio Attorney General, Columbus, OH, for Defendants.
It is the policy of the State of Ohio that the State follows its written execution protocol, except when it does not. This is nonsense.
This matter is before the Court for consideration of Plaintiff Kenneth Smith's motion for a temporary restraining order and a preliminary injunction (ECF No. 908), Defendants' memorandum in opposition (ECF No. 920), Plaintiff's reply memorandum (ECF No. 923), Defendants' incorporated motion for summary judgment (ECF No. 919), Plaintiff's incorporated summary judgment memorandum in opposition (ECF No. 925), and Plaintiff's supplemental memorandum related to the June 29, 2011 hearing (ECF No. 944).1 The issue presented by this briefing is relatively simple: has Plaintiff demonstrated that he is likely to succeed in establishing that the Ohio has an unconstitutional execution policy so that he deserves a stay of execution that will afford him the chance to prove his case? Because Plaintiff has demonstrated a substantial likelihood of succeeding on his Equal Protection claim, this Court finds the motion for injunctive relief well taken. Thus, it is ORDERED, ADJUDGED, and DECREED that the State of Ohio, and any person acting on its behalf, is hereby STAYED from implementing an order for the execution of Kenneth Smith issued by any court of the State of Ohio until further Order from this Court.
The captioned consolidated cases are 42 U.S.C. § 1983 civil rights actions that challenge multiple facets of the lethal injection protocol used by the State of Ohio. Plaintiff Kenneth Smith is an inmate on Ohio's death row who is set to be executed on July 19, 2011. On May 10, 2011, Plaintiff filed a motion for leave to file an amended complaint (ECF No. 907) and a motion for a temporary restraining order and preliminary injunction to stay his execution (ECF No. 908). Pursuant to S.D. Ohio Civ. R. 65.1(a), the Court therefore held an informal preliminary conference with the parties on May 11, 2011, at which the Court set a hearing date. (ECF No. 911.) This Court subsequently granted Plaintiff's unopposed motion for leave to file his second amended complaint. (ECF No. 912.) In that pleading, Plaintiff asserts Eighth Amendment and Fourteenth Amendment challenges to Ohio's lethal injection practices via § 1983. (ECF No. 913.)
On June 29, 2011, the Court held a hearing on Plaintiff's motion for injunctive relief. Both sides presented testimony, which the Court summarizes below. By order of this Court and by continuing agreement of the parties, all references to Ohio's execution team members are again by generic identifiers established by the parties and employed to address anonymity and safety concerns.
Prior to the commencement of the hearing on June 29, 2011, the parties submitted a series of stipulations. The stipulations, which were admitted into evidence at the hearing as Joint Exhibit 1, are as follows:
The parties agree and stipulate to the following.
1. The modifications for Plaintiff Kenneth Smith's scheduled execution include:
a. that the head of the “lethal injection bed” will be modified to include a 60–degree wedge-shaped cushion, ( see Attachment 1), so that Smith's upper body will be elevated;
b. that a soft cuff will be used to restrain Smith's arm where primary IV access is obtained, because the wedge-shaped cushion on the modified “lethal injection bed” prevents the ususal arm restraint;
c. that Smith will have the wedge-shaped cushion available to him for the bed in the holding cell in the Death House prior to his execution and while he is located at Southern Ohio Correctional Facility (“SOCF”);
d. that Smith will have available to him, for his optional use, a second wedge-shaped cushion, ( see Attachment 2), or a mattress pad with a built in pillow, ( see Attachment 3), that elevates him at a smaller angle, both of which have already been procured by and are available at SOCF;
e. that SOCF will provide an operational, portable suctioning machine to Smith, and said machine will be available at hand to Smith while at SOCF, including while in his holding cell in the Death House and in the execution chamber during the execution;
f. that Smith's trachea-esophageal prosthesis will be replaced sometime within seven days before his scheduled execution, and this is being done to accommodate Smith's request, which he made upon representation that such action will help prevent leakage or other issues;
g. that a microphone will be held near Smith's head throughout the execution process in order for him to access counsel if necessary by speaking into the microphone; and
h. that during the process of establishing IV access Smith will be permitted to have one hand free to enable him to talk and regulate his breathing through his stoma.
2. Counsel for Kenneth Smith, Attorney Carol Wright, has inspected the wedge-shaped cushion, ( see Attachment 1), the second wedge, ( see Attachment 2), and the mattress pad with a built-in pillow, ( see Attachment 3), finding each and every one suitable.
3. Since the execution of John Fautenberry on July 14, 2009, the medical team personnel involved in establishing peripheral IV access has consisted of TM # 9, TM # 17, and TM # 21, or some combination thereof.
4. It is currently planned that TM # 9, TM # 17, and TM # 21, or some combination thereof, will comprise the medical team personnel to establish [ ] peripheral IV access during the scheduled execution of Kenneth Smith on July 19, 2011.
5. During the execution of Kenneth Biros on December 8, 2009, approximately 30 minutes transpired from the initial attempt to the actual establishing of peripheral IV access.
6. TM # 9's participation has been and almost certainly will continue to be limited to establishing peripheral IV access in the condemned prisoner.
7. Before the execution of Vernon Smith, TM # 17 was hospitalized as a result of a vehicle accident. Consequently, TM # 17 was not present the day before or the day of Vernon Smith's execution.
8. TM # 21 and TM # 9 were in the equipment room during the administration of the lethal drugs to Vernon Smith.
9. When TM # 21 exited the equipment room to enter the execution chamber after administration of the lethal drugs to Vernon Smith, TM # 9 remained in the equipment room.
10. TM # 9 never entered the execution chamber during Vernon Smith's execution.
11. In addition to Carol Reeder, two persons signed the document entitled “Order for Execution Medications” related to Vernon Smith's execution.
12. Former SOCF Warden Edwin Voorhies does not meet the qualifications set forth in the current policy to be considered a member of the medical team.
13. Charles G. Miller does not meet the qualifications set forth in the current policy to be considered a member of the medical team.
14. TM # 10 does not meet the qualifications set forth in the current policy to be considered a member of the medical team.
15. TM # 10 does not have an individual DEA Registration Number or an Ohio license number equivalent.
16. A EA Individual Registration Number authorizes the individual registrant to receive, order, possess, and distribute controlled substances.
17. Dr. Carmelita Bautista is not and never has been a member of the execution team.
18. Dr. Bautista has never participated in any execution rehearsal sessions for any inmates.
19. There is no institutional pharmacy or pharmacist physically located at SOCF.
20. TM # 10 signed the Order for Execution Medications document before the Spisak execution.
21. Nancy D. Behn is an account clerk at SOCF.
22. Nancy D. Behn does not meet the qualifications set forth in the current policy to be considered a member of the medical team.
23. Nancy D. Behn does not have an individual DEA Registration Number or an Ohio license number equivalent.
24. ODRC officials obtained sodium thiopental from corrections officials in Indiana.
25. ODRC officials obtained sodium thiopental from corrections officials in Kentucky.
26. TM # 10 obtained sodium thiopental from Southern Ohio Medical Center in May, 2010, and September, 2010.
27. Warden Morgan does not meet the qualifications set forth in the current policy to be considered a member of the medical team.
28. Warden Morgan does not have an individual DEA Registration Number or an Ohio license number equivalent.
29. Former Warden Kerns does not meet the qualifications set forth in the current policy to be considered a member of the medical team.
30. Former Warden Kerns does not have an individual DEA Registration Number or an Ohio license number equivalent.
31. TM # 9, as a phlebotomist, is not qualified under Ohio law to administer intravenous and intramuscular injections.
(J. Ex. 1.)
Following preliminary remarks concerning discovery and opening statements by counsel, Plaintiff called Team Member 310, who testified behind a screen that shielded his identity. Team Member # 10, who is now the leader of the execution team, has served on the team for every execution that Ohio has conducted since resuming executions in 1999.
Plaintiff proceeded to ask Team Member # 10 about several stipulations that the parties submitted to the Court just before the hearing commenced....
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