In re McGuire
| Decision Date | 13 January 2014 |
| Docket Number | Case No. 2:11–cv–1016. |
| Citation | 994 F.Supp.2d 906 |
| Court | U.S. District Court — Southern District of Ohio |
| Parties | In re OHIO EXECUTION PROTOCOL LITIGATION. This document relates to: Dennis McGuire. |
OPINION TEXT STARTS HERE
John Juhasz, Lynn A. Maro, Youngstown, OH, Spiros P. Cocoves, Toledo, OH, Gary Wayne Crim, Lawrence Joseph Greger, Greger Law Office, Kirstie N. Young, Bieser, Greer & Landis, James P. Fleisher, Dayton, OH, John B. Gibbons, David L. Doughten, Robert Aloysius Dixon, Timothy F. Sweeney, Alan M. Freedman, Carol R. Heise, Evanston, IL, Jeffrey F. Kelleher, Jeffry F. Kelleher & Assoc., James H. Schuster, McCarthy, Lebit, Crystal & Liffman, Alan C. Rossman, Lori Riga, Vicki Ruth Adams Werneke, Federal Public Defender, Cleveland, OH, Michael J. Benza, Chagrin Falls, OH, Allen L. Bohnert, Office of the Federal Public Defender, Carol Ann Wright, Sharon A. Hicks, Federal Public Defenders Office, Kimberly S. Rigby, Randall Lee Porter, David C. Stebbins, Ohio Public Defender Office, W. Joseph Edwards, S. Adele Shank, John Patrick Parker, William Sheldon Lazarow, Lisa M. Lagos, Office of the Ohio Public Defender, Columbus, OH, Laurence E. Komp, Ballwin, MO, Kathleen McGarry, Glorieta, NM, James A. King, Morris, AR, David Jan Graeff, Westerville, OH, Dana C. Hansen Chavis, Stephen A. Ferrell, Stephen M. Kissinger, Federal Defender Services of Eastern Tennessee, Inc., Knoxville, TN, for Plaintiff.
Thomas E. Madden, Charles L. Wille, Office of the Ohio Attorney General, Criminal Justice Section Capital Crimes Unit, Christopher L. Bagi, Christopher P. Conomy, OH Attorney General, David M. Henry, State of Ohio Office of the Attorney General, Columbus, OH, for Defendant.
This matter is before the Court for consideration of an amended motion for a stay of execution, a temporary restraining order, and a preliminary injunction filed by Plaintiff Dennis McGuire (ECF No. 383) and a memorandum in opposition filed by Defendants (ECF No. 385). The motion presents the question of whether this Court believes that Ohio will not fulfill its duties under the Constitution so that the Court should stop the scheduled January 16, 2014 execution of McGuire. Because he has failed to meet his burden of proving that a stay is warranted, Ohio can proceed to fulfill its lawful duty to execute McGuire.
This litigation is a 42 U.S.C. § 1983 civil rights action brought by multiple inmates who challenge various facets of the execution protocol used by the State of Ohio. Although this litigation originated as a challenge to the protocol under the Eighth Amendment, the primary focus of the action in recent years has been on claims that Ohio's execution protocol and practices violate the Equal Protection Clause of the United States Constitution.2 Today's challenge returns the focus to the Eighth Amendment so that the question is not whether Ohio can be trusted to do what it says it will do, but whether following the protocol will subject McGuire to an unconstitutional substantial risk of severe pain that constitutes cruel and unusual punishment.
McGuire is scheduled to be executed on January 16, 2014. On January 6, 2014, he filed a motion for a stay of that execution (ECF No. 379), which led this Court to conduct an informal preliminary telephone conference with the parties on January 7, 2014, pursuant to S.D. Ohio Civ. R. 65.1(a) (ECF Nos. 381, 382). McGuire then filed an amended motion on January 7, 2014 (ECF No. 383), and Defendants filed a memorandum in opposition on January 9, 2014 (ECF No. 385).3 The amended motion came on for an evidentiary hearing that took place on Friday, January 10, 2014, and, to accommodate Defendants' expert witness, on Sunday, January 12, 2014. At the conclusion of the evidentiary hearing, this Court took the matter under advisement.4
In considering whether injunctive relief staying McGuire's execution is warranted, this Court must consider (1) whether McGuire has demonstrated a strong likelihood of success on the merits; (2) whether McGuire will suffer irreparable injury in the absence of equitable relief; (3) whether a stay would cause substantial harm to others; and (4) whether the public interest is best served by granting a stay. Cooey v. Strickland (Biros), 589 F.3d 210, 218 (6th Cir.2009) ). The Sixth Circuit has explained that “ ‘[t]hese 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)).
Before reaching the merits of McGuire's grounds for a stay, this Court must first address a number of threshold issues. Defendants raised these issues as grounds for this Court denying the stay request, but the issues do not prove dispositive.
The evidence establishes that McGuire has had breathing issues since at least 2009, when prison doctors began to prescribe him inhalers. Subsequent prescriptions support the contention that the underlying breathing issues continued into at least 2011, with the logical inference presented by the evidence that McGuire still has breathing issues today. This begs the question of why McGuire failed to assert his individualized, breathing-centric challenge to the use of midazolam and hydromorphone when those drugs first appeared in Ohio's protocol in late 2009 as what this Court and the parties have routinely designated “Plan B” in this litigation. The Plan B scenario contemplates an intramuscular injection of these drugs, while the current “Plan A” scenario now employs the same drugs and same dosages in intravenous administration.
Defendants argue that a procedural bar to a stay exists. Because McGuire failed to raise this specific medical challenge to the use of midazolam and hydromorphone in his supplemental individual complaint, Defendants reason, he is seeking relief on a theory not embodied in any claim currently before this Court. Certainly, neither the 2011 omnibus complaint (ECF No. 4) nor the 2013 amended omnibus complaint (ECF No. 158) explicitly plead this issue. This is understandable. Such a claim, turning on McGuire's individual medical condition, was not intended for the omnibus pleading; rather, by agreement of the parties and with the approval of this Court, McGuire can plead the claim via a supplemental individual complaint. McGuire in fact filed such a pleading in January 2013. (ECF No. 188.) Construed generously, that supplemental pleading presents his individualized claim in general terms and without expressly pleading the particularized facts upon which his amended motion for a stay relies.
But as with almost everything in this litigation, things then get messy. On October2013, Ohio adopted its current protocol. (ECF No. 323.) This led to the filing of the second amended omnibus complaint, which again failed to present the precise issue and facts involved in today's inquiry. (ECF No. 378.) McGuire now has until January 27, 2014, to file an amended supplemental individual complaint. (ECF No. 372.)
This Court will not decline to consider the merits of McGuire's individualized argument when the deadline for pleading that argument has not yet arrived. The Court is cognizant that this puts the amended motion for a stay in the nonsensical position of presenting a likelihood of success argument on a claim that is arguably not even fully before this Court. At the same time, however, the alternative route is equally odd. The Court can not tell McGuire that he has time yet in which to plead his claim more sufficiently and then refuse to consider the merits of the claim when he is relying on that permission. In light of this pleading issue—partially self-inflicted by McGuire and approved by this Court, even if perhaps none of these actors sufficiently appreciated the effect of the timing issues involved as they apply to today's motion-neither considering nor declining to consider McGuire's individualized medical challenge is fully palatable to this Court. As inherently distasteful as it is, the Court will therefore err if at all on the side of considering the merits and not letting a stay request turn unnecessarily on a procedural morass.
Defendants also assert that an equitable bar to a stay exists. By waiting until only ten days prior to his execution to file his initial motion for a stay, Defendants argue, McGuire has delayed unnecessarily in bringing a claim that he could have asserted as far back as late 2009. Defendants argue that McGuire's timing falls within the “strong equitable presumption” against a stay discussed in Workman v. Bredesen, 486 F.3d at 911. This is not an argument without some traction. Plaintiffs' counsel seem to be increasingly intent on pushing the boundaries of when they can file a motion for a stay before either an evidentiary hearing or even the possibility of a stay become unavailable based on simple equitable considerations. The Court will not deny McGuire consideration of his merits arguments today, but the parties and counsel in this litigation long ago all but exhausted the patience of this Court. Other plaintiffs seeking a stay in the future should note this point and make informed litigation choices accordingly.
One final comment on Defendants' “too little, too late” arguments is warranted. This Court would perhaps consider Defendants' arguments dispositive if only Plan B were involved. Because the amount and not the administration of the protocol drugs is at issue today, McGuire could certainly have raised his individualized medical challenge to the effect of these drugs as part of Plan B as far back as late 2009. He failed to do so and instead elected to wait until nearly...
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In re Ohio Execution Protocol Litig.
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