Cooey v. Strickland

Decision Date02 March 2007
Docket NumberNo. 05-4057.,05-4057.
PartiesRichard Wade COOEY, II, Plaintiff-Appellee, v. Ted STRICKLAND, Governor; Terry J. Collins, Director; E.C. Voorhies, Warden, Defendants-Appellants.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: Michael L. Collyer, Office of the Attorney General, Cleveland, Ohio, for Appellants. Gregory W. Meyers, Public Defender's Office, Columbus, Ohio, for Appellee. ON BRIEF: Michael L. Collyer, Kelley A. Sweeney, Office of the Attorney General, Cleveland, Ohio, for Appellants. Gregory W. Meyers, Kelly L. Culshaw, Kimberly S. Rigby, Public Defender's Office, Columbus, Ohio, for Appellee.

Before: SUHRHEINRICH, SILER, and GILMAN, Circuit Judges.

SUHRHEINRICH, J., delivered the opinion of the court, in which SILER, J., joined.

GILMAN, J. (pp. 424-31), delivered a separate dissenting opinion.


SUHRHEINRICH, Circuit Judge.

Richard Cooey, an Ohio inmate under sentence of death, filed this action against Ted Strickland, Governor, Terry J. Collins, Director, and E.C. Voorhies, Warden (collectively "Defendants" or "State") pursuant to 42 U.S.C. § 1983, challenging the constitutionality of Ohio's lethal injection protocol. The issues before us in this interlocutory appeal are (1) whether a death row inmate's claim against lethal injection itself—as opposed to a precursor procedure—is properly considered to be a habeas action or one brought pursuant to 42 U.S.C. § 1983, (2) whether a death row inmate's § 1983 method-of-execution challenge accrues, for statute of limitations purposes, when execution is imminent or at some earlier stage in state and federal proceedings, and (3) whether res judicata is a bar to a death row inmate's claim concerning the means and methods of execution when similar issues were raised, or the specific claim could have been raised, in a previous habeas action.

I. Background

In 1986, an Ohio three-judge panel convicted Cooey of two counts of aggravated murder, and the panel sentenced him to death. The Ohio Supreme Court affirmed Cooey's convictions and sentence on direct appeal. See State v. Cooey, 46 Ohio St.3d 20, 544 N.E.2d 895 (1989), and the United States Supreme Court denied certiorari on April 1, 1991, see Cooey v. Ohio, 499 U.S. 954, 111 S.Ct. 1431, 113 L.Ed.2d 482 (1991). Cooey unsuccessfully sought post-conviction relief pursuant to Ohio Rev. Code Ann. § 2953.21. See State v. Cooey, 1994 WL 201009 (Ohio Ct.App. May 25, 1994). The Ohio Supreme Court declined jurisdiction over his further appeal from this decision. Cooey subsequently sought to reopen his direct appeal on the basis of ineffective assistance of appellate counsel. The Ohio Court of Appeals denied his request to reopen on the basis of procedural default because Cooey had not established good cause for not filing his application to reopen within ninety days of the July 1, 1993, effective date of Ohio App. R. 26(B). The Ohio Supreme Court affirmed. See State v. Cooey, 73 Ohio St.3d 411, 653 N.E.2d 252 (1995).

In October 1996, Cooey filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. The district court denied the petition on September 4, 1997. See Cooey v. Anderson, 988 F.Supp. 1066 (N.D.Ohio 1997). This Court granted a certificate of appealability as to two issues and denied relief as to both. See Cooey v. Coyle, 289 F.3d 882 (6th Cir.2002). The United States Supreme Court denied certiorari on March 31, 2003. Ohio originally set Cooey's execution date for July 24, 2003.

On July 21, 2003, Cooey filed a motion for relief from judgment pursuant to Fed. R.Civ.P. 60(b) and a motion for stay of execution. On July 23, 2003, the district court granted Cooey's motion for a stay of execution and deferred ruling on the Rule 60(b) motion. Both the Sixth Circuit and the Supreme Court denied the Warden's motions to vacate the stay of execution. The district court ultimately denied the Rule 60(b) motion, and this Court denied Cooey's application for a certificate of appealability from the denial of his Rule 60(b) motion and his motion for leave to file a second or successive habeas petition.

On June 10, 2004, Cooey and another inmate, Adremy Dennis, filed a complaint alleging that the lethal injection protocol constitutes cruel and unusual punishment in violation of the Eighth Amendment. Ohio utilizes three drugs in performing lethal injection: sodium thiopental, pancurionium bromide, and potassium chloride. The sodium thiopental is designed to anesthetize the prisoner and render him unconscious. Next, the pancuronium bromide paralyzes all of the prisoner's voluntary muscles but does not affect his sensation, consciousness, or ability to feel pain. Finally, the potassium chloride induces cardiac arrest. Dennis and Cooey asserted that if the sodium thiopental is not administered properly and in sufficient dosage, the prisoner could experience intense pain after being injected with the potassium chloride, but would be unable to convey the sensation due to the paralyzing agent in pancuronium bromide. They also maintained that to subject the prisoner to such excruciating pain while he is still conscious would amount to cruel and unusual punishment. They also alleged that the personnel attending to the executions are inadequately trained and, as such, Defendants' execution methods would violate a prisoner's constitutional rights.

The district court dismissed the complaint because Cooey failed to exhaust his administrative remedies. After exhausting them, Cooey re-filed his complaint on December 8, 2004.1 On January 4, 2005, Defendants moved to dismiss the complaint based on the statute of limitations and res judicata, in addition to arguing that Cooey's complaint should be construed as a successive habeas petition. On March 28, 2005, the district court denied the defendants' motion but granted them permission to pursue this interlocutory appeal. On March 30, 2005, Defendants asked the district court to certify for immediate appeal the three arguments made in their motion to dismiss. On April 13, 2005, the district court granted the motion, in part, as to the issue of whether Cooey's claims are barred by the statute of limitations. Defendants then sought permission to appeal the three issues pursuant to 28 U.S.C. § 1292(b). This Court granted the request as to all three issues.

We later granted a stay pending the Supreme Court's decision in Hill v. McDonough, ___ U.S. ____, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006), which was decided on June 12, 2006. After that decision, the parties filed supplemental briefs addressing its impact on this case. The parties also submitted second supplemental briefs discussing the impact of recent changes in Ohio's lethal injection protocol on the issues pending before this Court. The matter was argued before this Court on December 7, 2006.

II. Analysis

This Court reviews de novo the district court's grant or denial of a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir.2005), cert. denied, ___ U.S. ____, 126 S.Ct. 1911, 164 L.Ed.2d 663 (2006). In this analysis, we must construe the complaint in the light most favorable to the plaintiff, accept all of his factual allegations, and determine whether he undoubtedly can prove no set of facts in support of his claims that would entitle him to relief. Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir.1995).

A. § 1983 vs. § 2254

Cooey sought relief pursuant to 42 U.S.C. § 1983, alleging that the proposed lethal injection protocol would constitute cruel and unusual punishment in violation of the Eighth Amendment. In their motion to dismiss, Defendants argued that Cooey's claim should have been presented in a petition for a writ of habeas corpus under 28 U.S.C. § 2254, rather than as a § 1983 claim. In Hill, the Supreme Court addressed this same issue and concluded that a death penalty plaintiff could raise his challenge in a § 1983 action. Relying on its earlier decision in Nelson v. Campbell, 541 U.S. 637, 645-47, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004), the Court concluded that the plaintiff's action was properly brought under § 1983 because it did not present a general challenge to his execution by lethal injection, but rather limited the challenge to the specific protocol currently used by the defendants. Hill, 126 S.Ct. at 2101-02. In their supplemental brief, Defendants acknowledge that Hill defeats their argument.

B. Timeliness

Defendants also argue that Cooey's § 1983 action is barred by the statute of limitations. The Supreme Court has held that § 1983 claims are best characterized as tort actions for the recovery of damages for personal injury and that federal courts must borrow the statute of limitations governing personal injury actions from the state where the § 1983 action was brought. Wilson v. Garcia, 471 U.S. 261, 275-76, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). If a state has more than one statute of limitations for personal injuries, the state's residual or general statute of limitations governing personal injury actions is applied to all § 1983 actions brought in that state. Owens v. Okure, 488 U.S. 235, 249-50, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989). This Court has held that a two-year statute of limitations applies to § 1983 claims in Ohio. Banks v. City of Whitehall, 344 F.3d 550, 553 (6th Cir.2003) (citing Browning v. Pendleton, 869 F.2d 989 (6th Cir.1989) (en banc)).

On the other hand, as the Supreme Court recently made clear, federal law determines when the statute of limitations for a civil rights action begins to run. Wallace v. Kato, No. 05-1240, ___ U.S. ___, ___, 127 S.Ct. 1091, ___ L.Ed.2d ___, 2007 WL 517122, at *3 (Feb. 21, 2007). "Under those principles, it is `the standard rule that [accrual occurs] when the plaintiff has complete and present cause of action.'" Wallace, ___ U.S. at ___, 127 S.Ct. 1091, 2007 WL 517122, at *3 (quoting Bay Area Laundry & Dry Cleaning...

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