Cooey v. Strickland

• Decision Date: 12 May 2010
• Docket Number: No. 10-3598.,10-3598.
• Citation: 604 F.3d 939
• Parties: Richard COOEY, Plaintiff,Michael Beuke, Plaintiff-Intervenor-Appellant,v.Ted STRICKLAND, Governor, State of Ohio; Ernie L. Moore, Director, Ohio Department of Rehabilitation and Correction; Donald Morgan, Warden, Southern Ohio Correctional Facility, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

604 F.3d 939

Richard COOEY, Plaintiff,Michael Beuke, Plaintiff-Intervenor-Appellant,v.Ted STRICKLAND, Governor, State of Ohio; Ernie L. Moore, Director, Ohio Department of Rehabilitation and Correction; Donald Morgan, Warden, Southern Ohio Correctional Facility, Defendants-Appellees.

No. 10-3598.

United States Court of Appeals Sixth Circuit.

Submitted: May 11, 2010.

Decided and Filed: May 12, 2010.

COPYRIGHT MATERIAL OMITTED

ON BRIEF: Charles L. Wille, Thomas E. Madden, Office of the Ohio Attorney General, Columbus, Ohio, for Appellees.

Before: BATCHELDER, Chief Judge; MARTIN and NORRIS, Circuit Judges.

BATCHELDER, C.J., delivered the opinion of the court, in which NORRIS, J., joined. MARTIN, J. (pp. 947-49), delivered a separate dissenting opinion.

OPINION

ALICE M. BATCHELDER, Chief Judge.

Intervenor-Plaintiff Michael Beuke, an Ohio death row inmate, appeals from the order of the United States District Court for the Southern District of Ohio, Eastern Division, denying both his motion for injunctive relief filed pursuant to 42 U.S.C. § 1983, and his oral request to stay his execution pending appeal of the decision. On appeal, Beuke also requests, in the alternative, that a single judge issue a stay enjoining his execution while he appeals the district court's decision, pursuant to Federal Rule of Appellate Procedure 8(a)(2)(A)(ii) and (a)(2)(D). For the reasons that follow, we affirm the opinion of the district court denying Beuke's motion for injunctive relief, and further deny his request for a stay enjoining his execution.

I.

Beuke is scheduled to be executed on May 13, 2010. The district court permitted him to intervene for a second time in the present lawsuit on March 23, 2010, and on May 6, 2010, he filed a motion for injunctive relief to enjoin the State of Ohio from utilizing its alternative execution plan (“Plan B”) under its current lethal injection protocol. The district court held a hearing on May 10, 2010, during which it heard testimony from Beuke's two experts, Dr. Edward D. French and Dr. Mark J.S. Heath. Defendants called no witnesses but requested that the district court incorporate previous testimony of Dr. Mark Dershwitz, who has testified on numerous prior occasions on behalf of defendants in this lawsuit. On May 11, 2010, the district court denied Beuke's motion for injunctive relief and his motion for a stay pending appeal.

Michael Beuke was convicted in October 1983 of one count of aggravated murder, two counts of attempted aggravated murder, three counts of aggravated robbery, three counts of kidnapping, and one count of carrying a concealed weapon. The aggravated murder charge also included two specifications, either of which alone-if proven beyond a reasonable doubt-would make him eligible for the death penalty: (1) committing aggravated murder as part of a course of conduct involving the purposeful attempt to kill two or more persons, and (2) committing aggravated murder in the course of an aggravated robbery. The jury found that both specifications were proven beyond a reasonable doubt. At the penalty hearing, the jury also found beyond a reasonable doubt that the aggravating factors outweighed the mitigating factors and recommended the death penalty. The trial court adopted the recommendation and imposed the death penalty.

Having completed and failed in his direct appeal, two petitions for post-conviction relief, and two habeas attempts, in November 2007, Beuke moved the District Court for the Southern District of Ohio to allow him to intervene in a lawsuit challenging the constitutionality of Ohio's then applicable lethal injection protocol Cooey v. Strickland., No. 04-CV-01156, 2010 WL 1882263 (S.D.Ohio May 11, 2010). The district court granted the motion to intervene on February 15, 2008, and Beuke filed his intervenor complaint the same day. However, the district court dismissed his action on August 25, 2008, on the ground that the decision in Cooey v. Strickland, 479 F.3d 412 (6th Cir.2007), required dismissal, on statute of limitations grounds, of Beuke's 42 U.S.C. § 1983 claims. Beuke did not appeal.

The remaining plaintiffs in the Cooey action continued to litigate their challenge to the lethal injection process, and in the meantime, Ohio changed its execution protocol, making changes which were designed to make the State's capital punishment protocol more humane. The new protocol, which took effect on November 30, 2009, utilizes a one-drug, IV injection (“Plan A”) with a two-drug, intramuscular injection back-up procedure if the execution team fails to locate veins suitable for IV transmittal (“Plan B”). See Cooey (Biros) v. Strickland, 589 F.3d 210, 217 (6th Cir.2009). Given the change of policy, the statute of limitations to challenge the new procedure began to run anew.

But it was not until March 17, 2010, that Beuke filed a motion to intervene once again in the pending lawsuit in the district court, despite knowing that his execution date of May 13, 2010 (scheduled by the State of Ohio on November 4, 2009), was drawing near. The district court granted the motion to intervene on March 23, 2010, and Beuke filed his new intervenor complaint the same day. Defendants filed a motion to dismiss the complaint on April 6, 2010. A month later, on May 3, 2010, Beuke filed a motion for leave to untimely file a response in opposition to the motion to dismiss. The district court granted the motion. On May 7, 2010, Beuke filed a motion to amend his complaint to include claims challenging the State's use of Plan B as a back-up execution plan, arguing that his anti-seizure medication would interact with and reduce the effects of the drugs utilized in Plan B. He also sought to enjoin the defendants from using Plan B to carry out his execution.

The district court held a hearing on Beuke's amended complaint on May 10, 2010, at 2:00 p.m., and at the conclusion of that hearing, counsel for Beuke orally requested a stay of his execution pending appeal should his motion for injunctive relief be denied. On May 11, 2010, the district court denied the motion for injunctive relief, as well as his request for a stay pending appeal. Beuke filed a timely notice of appeal the same day.

We extensively described Ohio's new execution protocol in the Biros case. But in a nutshell, Plan A, which Beuke does not challenge, involves intravenous injection of five grams of thiopental sodium. The back-up plan, Plan B, which Beuke is challenging, is used only if a prisoner's veins prove too difficult to access. Plan B involves a two-drug injection of 10 milligrams of midazolam and 40 milligrams of hydromorphone, which are administered in a single syringe intramuscularly. A medical team member, after administering the injection and waiting five minutes, will examine the inmate for signs of breathing. Then, if necessary, a second injection of the same mixture will be administered, and the inmate will be re-examined after five more minutes for signs of breathing. Then only if there are continued signs of breathing will a final injection of 60 milligrams of hydromorphone be administered. See Cooey (Biros), 589 F.3d at 220.

Beuke's challenge to the use of Plan B is premised on the allegation that its use will be unconstitutional as applied to him because he takes anti-seizure medication daily that will interact with the midazolam in such a way as to produce various undesirable effects. Because of a seizure disorder, Beuke takes 120 milligrams per day of the drug phenobarbital, and has been taking the drug daily for approximately five years. (R. 751-4, Amend. Compl. at ¶¶ 5, 7). Phenobarbital is a barbiturate that acts as an anticonvulsant to depress one's central nervous system. ( Id. at ¶ 5). Likewise, midazolam produces depressant effects such as sedation, anti-anxiety, and unconsciousness. ( Id. at ¶ 6). Because of his chronic intake of phenobarbital, there is a high likelihood, Beuke claims, that he will have an increased tolerance to the amount of midazolam given during Plan B, and because of this increased tolerance, the rate at which he descends into unconsciousness would be slowed, resulting in an increased chance of his experiencing the effects of hydromorphone. ( Id. at ¶ 8). Thus, he may consciously experience the side effects of hydromorphone, which can include inter alia, nausea, vomiting, disinhibited speech, delirium, anxiety, or disorientation. ( Id.). The increased risk of this type of experience if he is subjected to Plan B, Beuke argues, violates both his right to be free from cruel and unusual punishments under the Eighth Amendment, and a claimed “liberty, life, and property” interest arising under Ohio Rev.Code § 2949.22(A) that is ultimately protected under the due process clause of the Fourteenth Amendment, that entitles him to a “quick and painless death.” ( Id. at ¶¶ 11, 13, 16).¹

II.

In his appeal from the district court's decision denying injunctive relief, Beuke requests that we enjoin the State from utilizing Plan B to carry out his execution because seizure medications that he is taking, namely phenytoin and phenobarbital, may interact with the Plan B drugs so as to violate his constitutional rights under the Eighth and Fourteenth Amendments. In reviewing the denial of the motion for injunctive relief, we consider four factors: “(1) whether [Beuke] has demonstrated a strong likelihood of success on the merits; (2) whether he will suffer irreparable injury in the absence of equitable relief; (3) whether the stay will cause substantial harm to others; and (4) whether the public interest is best served by granting the stay.” Cooey (Biros), 589 F.3d at 218 (citing Workman v. Bredesen, 486 F.3d 896, 905 (6th Cir.2007)). “These factors are not prerequisites that must be met, but are interrelated considerations that must be balanced together.” Id. (quoting Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir.1991)). We review the district court's...