In re Ohio Execution Protocol Litig., Case No. 2:11-cv-1016
| Decision Date | 08 September 2017 |
| Docket Number | Case No. 2:11-cv-1016 |
| Parties | In re: OHIO EXECUTION PROTOCOL LITIGATION, This Order relates to Plaintiff Gary Otte |
| Court | U.S. District Court — Southern District of Ohio |
This § 1983 capital case is before the Court on Plaintiff Gary Otte's Motion for Stay of Execution, Temporary Restraining Order, and a Preliminary Injunction (ECF No. 1168). The State Actor1 Defendants have filed a Memorandum in Opposition (ECF No. 1182). Plaintiffs Tibbetts and Campbell eventually sought to join in the Motion and all three Plaintiffs filed a Joint Reply in Support (ECF No. 1190).
Tibbetts and Campbell were denied leave to join by separate order (ECF No. 1200). However, the Court has set a hearing on Campbell's Motion for Stay of Execution, Temporary Restraining Order, and Preliminary Injunction (ECF No. 1163) and Tibbetts' impending motion for the same relief for October 23, 2017 (Minutes of Scheduling Conference, ECF No. ).
The Court separately denied the temporary restraining order portion of the Motion as unnecessary in light of the time available for a preliminary injunction hearing (ECF No. 1178).
Plaintiff Otte and the Defendants have consented to plenary magistrate judge jurisdiction under 28 U.S.C. § 636(c) and Chief Judge Sargus has referred the matter on that basis (ECF Nos. 732, 734, 938, 943).
The findings of fact and conclusions of law required by Fed. R. Civ. P. 52 for a preliminary injunction decision are embodied in this Decision. They are not binding at trial on the merits. United States v. Edward Rose & Sons, 384 F.3d 258, 261 (6th Cir. 2014), citing Univ. of Texas v. Camenisch, 451 U.S.390, 395 (1981). In preparing them, the Court has considered the Proposed Findings of Fact and Conclusions of Law filed by both parties (ECF Nos. 1213, 1217).
(Motion, ECF No. 1168, PageID 44125-46.) Although Otte references carrying out "any part" of the Execution Protocol, his actual claims in the Motion are limited to the consciousness assessment provided for in § VI.H.1.c.ii. of Ohio's Execution Protocol (01-COM-11) adopted October 7, 2016 (ECF No. 711-1, PageID 21467-68). Otte claims that the consciousnessassessment intended to be used in his execution, assuming it is the same or close to the same as that used in the execution of Ronald Phillips on July 26, 2017, will be "ineffective" and will therefore "create[] a sure or very likely, substantial risk of serious harm to him . . ., and ignore[s] alternatives that are known, readily available, and able to substantially reduce the risk that is inherent in the execution protocol." (Motion, ECF No. 1168, PageID 44127.) This claim, the only one litigated at the September 6, 2017, hearing, will be referred to herein as the "Ineffective Consciousness Assessment Claim."
Ohio adopted lethal injection as its sole method of execution in November 2001.2 This case and its predecessor, Case No. 2:04-cv-1156, now captioned Cooey v. Kasich, have been pending continuously since shortly after the Supreme Court authorized using 42 U.S.C. § 1983 to challenge methods of execution in Nelson v. Campbell, 541 U.S. 637 (2004). Most of Ohio's death row inmates have been plaintiffs and there has been strong continuity of representation on both sides. District Judge Gregory Frost managed both cases until his retirement in May 2016. The Magistrate Judge reference in the case was transferred to the undersigned in September 2015 in anticipation of Judge Frost's retirement and parallel to the reference of most of the District's capital habeas corpus cases.3
After the execution of Dennis McGuire in January 2014, there was a hiatus for several years as Ohio considered alternatives to the thiopental sodium or pentobarbital that had been used prior to McGuire's execution and to the particular method used in his execution. At a status conference on October 3, 2016, however, Ohio announced that it would shortly adopt a new execution protocol and would resume executions using that protocol4 (Minute Entry, ECF No. 655). Judge Frost had stayed these proceedings pending appeal of his grant of a protective order to Defendants (ECF No. 629). After the status conference, the Court vacated the stay as to Plaintiffs Phillips, Tibbetts, and Otte and adopted a schedule to prepare for a preliminary injunction hearing (ECF No. 658). The new protocol was announced October 7, 2016 (ECF No. 667). The stay of proceedings was subsequently vacated as to all Plaintiffs (ECF No. ___).
After a five-day hearing in January 2017, this Court enjoined the executions of Plaintiffs Phillips, Tibbetts, and Otte. In re Ohio Exec. Protocol Litig., 235 F. Supp. 3d 892, 2017 U.S. Dist. LEXIS 11019 (S.D. Ohio 2017). That decision was upheld by a panel of the Sixth Circuit, Fears v. Morgan (In re Ohio Execution Protocol), 853 F.3d 822 (6th Cir. 2017), but later reversed by the en banc court. Fears v. Morgan (In re Ohio Execution Protocol), 860 F.3d 881 (6th Cir. 2017)("Fears v. Morgan en banc".) Phillips was executed on July 26, 2017, and the instant Motion followed on August 22, 2017 (ECF No. 1168).
General Standard for Preliminary Injunctive Relief in a Capital § 1983 Case
42 U.S.C. § 1983, R.S. § 1979, was adopted as part of the Act of April 20, 1871, and reads, as amended:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
The statute creates a cause of action sounding essentially in tort on behalf of any person deprived of a constitutional right by someone acting under color of state law. City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 709 (1999); Memphis Community School District v. Stachura, 477 U.S. 299 (1986); Carey v. Piphus, 435 U.S. 247 (1978). "The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails." Wyatt v. Cole, 504 U.S. 158, 161 (1992). In order to be granted relief, a plaintiff must establish that the defendant deprived or intends to deprive him of a right secured by the U.S. Constitution and the laws of the United States and that the deprivation occurred under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Parratt v. Taylor, 451 U.S. 527, 535 (1981); Flagg Brothers Inc. v. Brooks, 436 U.S. 149, 155 (1978).
Otte's Fourth Amended Complaint (ECF No. 695), the operative pleading for present purposes, alleges that, unless restrained, the Defendants, acting on behalf of the State of Ohio and indeed under the compulsion of death warrants from the Ohio Supreme Court, will deprive him of his life in violation of the United States Constitution by executing him pursuant to Ohio's extant Execution Protocol, 01-COM-11 (10/07/2016).
In determining whether preliminary injunctive relief is merited in a capital § 1983 case, a trial or appellate court must apply the following established standards:
(1) whether [plaintiff] 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. Workman v. Bredesen, 486 F.3d 896, 905 (6th Cir. 2007); [N.E.]. Ohio Coal. for Homeless & Serv. Employees Int'l Union, Local 1199 v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006). "These factors are not prerequisites that must be met, but are interrelated considerations that must be balanced together." Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991).
Cooey (Biros) v. Strickland, 589 F.3d 210, 218 (6th Cir. 2009). These same criteria were applied by Judge Frost in a prior preliminary injunction decision in this case. In re: Ohio Execution Protocol Litig. (Lorraine), 840 F. Supp. 2d 1044, 1048 (S.D. Ohio 2012). They are consistently applied by the Sixth Circuit to preliminary injunctive relief requests across subject matter areas, Overstreet v. Lexington-Fayette Urban Co. Gov't, 305 F.3d 566, 573 (6th Cir. 2002); Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 888 (6th Cir. 2000); Washington v. Reno, 35 F.3d 1093, 1099 (6th Cir. 1994); NAACP v. City of Mansfield, 866 F.2d 162, 166 (6th Cir. 1989); Frisch's Restaurant, Inc. v. Shoney's, Inc., 759 F.2d 1261, 1263 (6th Cir. 1985); In re DeLorean Motor Co., 755 F.2d 1223, 1228 (6th Cir. 1985).
Supreme Court case law is consistent:
A plaintiff seeking a preliminary injunction must establish that he is likely to succeed...
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