In re Ohio Execution Protocol Litigation, 020118 FED6, 17-4221
|Opinion Judge:||ALICE M. BATCHELDER, CIRCUIT JUDGE.|
|Party Name:||In re: Ohio Execution Protocol Litigation. v. John Kasich, et al., Defendants-Appellees. Alva E. Campbell, Jr.; Raymond Tibbetts, Plaintiffs-Appellants,|
|Attorney:||Erin G. Barnhart, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE SOUTHERN DISTRICT OF OHIO, Columbus, Ohio, for Appellants. Peter T. Reed, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees. Erin G. Barnhart, Allen L. Bohnert, David C. Stebbins, Adam M. Rusnak, Carol A. Wright, OFF...|
|Judge Panel:||Before: BATCHELDER, ROGERS, and THAPAR, Circuit Judges.|
|Case Date:||February 01, 2018|
|Court:||United States Courts of Appeals, Court of Appeals for the Sixth Circuit|
Argued: January 25, 2018
Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 2:11-cv-01016-Michael R. Merz, Magistrate Judge.
Erin G. Barnhart, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE SOUTHERN DISTRICT OF OHIO, Columbus, Ohio, for Appellants.
Peter T. Reed, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees.
Erin G. Barnhart, Allen L. Bohnert, David C. Stebbins, Adam M. Rusnak, Carol A. Wright, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE SOUTHERN DISTRICT OF OHIO, Columbus, Ohio, James A. King, PORTER, WRIGHT, MORRIS & ARTHUR LLP, Columbus, Ohio, for Appellants.
Peter T. Reed, Eric E. Murphy, Michael J. Hendershot, Hannah C. Wilson, Jocelyn K. Lowe, Zoe A. Saadey, Charles L. Wille, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees.
Before: BATCHELDER, ROGERS, and THAPAR, Circuit Judges.
ALICE M. BATCHELDER, CIRCUIT JUDGE.
Two death-row inmates, Raymond Tibbetts and Alva Campbell, moved to enjoin their pending executions, claiming that Ohio's midazolam-based, three-drug execution protocol presents a constitutionally unacceptable risk of pain and suffering. The district court considered the proffered evidence, determined that the inmates had not met their burden, and denied the requested injunctions. We AFFIRM.
To obtain a preliminary injunction, a plaintiff must meet a four-factor test, Glossip v. Gross, 135 S.Ct. 2726, 2736-37 (2015), though the "likelihood of success on the merits" factor is determinative here. The merits determination in this case is based on a two-part test in which Tibbetts and Campbell must first show that Ohio's execution protocol "presents a risk that is sure or very likely to cause serious pain and needless suffering." In re Ohio Execution Protocol (Fears v. Morgan), 860 F.3d 881, 886 (6th Cir. 2017) (en banc), cert. denied, 137 S.Ct. 2238 (2017) (quotation marks and citations omitted). If they can satisfy that first part, they must also "prove that an alternative method of execution is available, feasible, and can be readily implemented, among other things." Id. at 890 (citing Glossip, 135 S.Ct. at 2737 (quotation marks omitted)). "[P]risoners cannot successfully challenge a State's method of execution merely by showing a slightly or marginally safer alternative[;] [they] must identify an alternative that is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain." Glossip, 135 S.Ct. at 2737 (quotation marks, editorial marks, and citation omitted)).
Because this appeal arises from the Fears remand, we can begin by recognizing that the Fears plaintiffs (which included Tibbetts but not Campbell) had "shown some risk that Ohio's execution protocol may cause some degree of pain, at least in some people, " though Fears noted that "some risk of pain is inherent in any method of execution[, ] no matter how humane[, ] [a]nd the Constitution does not guarantee a pain-free execution." Fears, 860 F.3d at 890 (quotation marks and citation omitted). But in Fears we held that the plaintiffs had "fallen well short" of proving a risk that Ohio's execution protocol is sure or very likely to cause serious pain and needless suffering and they, therefore, "failed to demonstrate a likelihood of success on their claims." Id. at 890, 892.
Facing this new motion after remand, the district court considered whether Tibbetts and Campbell had "added sufficient evidence" to reach the level of certainty of "sure or very likely, " which the Fears plaintiffs had failed to meet. See In re Ohio Execution Protocol ("Campbell"), No. 2:11-CV-1016, 2017 WL 5020138, at *12 (S.D. Ohio Nov. 3, 2017). After carefully recounting their new evidence, the court concluded that they had not. The court also evaluated their proposed alternative method of execution and found that it was lacking. The court denied the motion.
In this appeal, Tibbetts and Campbell claim that the "serious pain and needless suffering" at issue in the Fears standard includes psychological pain and suffering, but that the district court "permit[ted] relief only in cases of severe physical pain" and "refused to consider the significant evidence of mental and psychological suffering." To be clear, in that part of its opinion the district court was considering psychological pain unaccompanied by physical pain, and explained: Psychological pain or mental suffering is a likely result of being sentenced to death and anticipating the execution, but that experience of psychological suffering could not by itself make a method of execution unconstitutional. Presumably all death row inmates suffer that pain, but the death penalty is not per se unconstitutional. Unless accompanied by serious physical pain, the mental suffering associated with being under a sentence of death is not ...
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