In re Ohio Execution Protocol Litig.
Decision Date | 06 March 2018 |
Docket Number | Case No. 2:11-cv-1016 |
Parties | In re: OHIO EXECUTION PROTOCOL LITIGATION, This Report relates to Plaintiff Robert Van Hook |
Court | U.S. District Court — Southern District of Ohio |
This method-of-execution case, brought pursuant to 42 U.S.C. § 1983, is before the Court on Defendants' Motion to Dismiss Plaintiffs' Fourth Amended Omnibus Complaint ("Motion," ECF No. 1379). Plaintiffs oppose the Motion ("Memo in Opp.," ECF No. 1406) and Defendants have filed a Reply in Support ("Reply," ECF No. 1408). The moving Defendants are Ohio Governor John Kasich; Gary C. Mohr, Director of the Ohio Department of Rehabilitation and Correction (ODRC); Ronald Erdos, Donald Morgan, Stephen Gray, Edwin Voorhies, Richard Theodore, Charlotte Jenkins, and John Coleman, employees of the ODRC; and un-named and anonymous "execution team members (the "Moving" or "State" Defendants).
On February 22, 2018, the Magistrate Judge filed a Report and Recommendations recommending the Motion be granted in part and denied in part as to all Plaintiffs except Alva Campbell, Raymond Tibbetts, and Robert Van Hook (the "Report," ECF No. 1429). That Report is now pending on objections. Campbell has died and been dismissed as a party (ECF No. 1443). Tibbetts is not a party to the Fourth Amended Omnibus Complaint. Van Hook has consented to plenary magistrate judge jurisdiction and Chief Judge Sargus has referred his portion of the case on that basis (ECF No. 951). Therefore as to Van Hook the instant Motion is before the Magistrate Judge for decision rather than report and recommendations.
Dismissal is sought (1) under Fed. R. Civ. P. 12(b)(1) for lack of jurisdiction of the subject matter or based on sovereign immunity under the Eleventh Amendment, or (2) under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted or on the basis of the affirmative defense of qualified immunity (Motion, ECF No. 1379, PageID 51913). Because qualified immunity applies only to claims against state actor Defendants in their individual capacities and no such claims are at issue in the instant Motion, there is no discussion of qualified immunity in what follows.
Ordinarily, a motion under Fed. R. Civ. P. 12 must be made before an answer is filed. Nevertheless, a new motion to dismiss is proper in response to a new amended complaint. Plaintiff does not question the appropriateness of Defendants' filing a motion to dismiss at this stage of the case.
Subject Matter Jurisdiction (Fed. R. Civ. P. 12(b)(1))
Fed. R. Civ. P. 12(b)(1) authorizes motions to dismiss for lack of subject matter jurisdiction. Because federal courts are courts of limited jurisdiction, the burden of persuasion on a Rule 12(b)(1) motion is on the party asserting jurisdiction. Thomson v. Gaskill, 315 U.S. 442 (1942); Moir v. Greater Cleveland Regional Transit Authority, 895 F.2d 266 (6th Cir. 1990); 5A Wright and Miller, Federal Practice and Procedure, Civil 2d §1350 (1990).
Plaintiff asserts Defendants are raising a "facial" as opposed to a "factual" subject matter jurisdiction claim (Memo in Opp., ECF No. 1406, PageID 52316). Defendants do not disagree in their Reply and the Magistrate Judge agrees with Plaintiff on this point.1
The Supreme Court has held that district courts lack subject matter jurisdiction of claims that are "so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as to not involve a federal controversy." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998), quoting Oneida Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661, 666 (1974). At the same place in Steel Co., however, the Court noted that "the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction, i.e., the courts' statutory or constitutional power to adjudicate the case." Id. citing Wright and Miller, supra. Given that the Fourth Amended Omnibus Complaint purports to plead claims for violation of federal constitutional rights and arising under 42 U.S.C. § 1983, this Court concludes it has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343.
Jurisdiction under either of those statutes can be defeated by the bar of the Eleventh Amendment to the United States Constitution which provides:
The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State or by Citizens or Subjects of any Foreign State.
The Amendment has been construed to bar suits against a State by its own citizens. Papasan v. Allain, 478 U.S. 265, 276 (1986); Hans v. Louisiana, 134 U.S. 1 (1890); Edelman v. Jordan, 415 U.S. 651 (1974); Florida Dep't. of State v. Treasure Salvors, Inc., 458 U.S. 670 (1982).
The Eleventh Amendment does not bar an action for injunctive relief against a state officer for violations of the United States Constitution. Ex parte Young, 209 U.S. 123 (1908); Cory v. White, 457 U.S. 85 (1982); Thomson v. Harmony, 65 F.3d 1314, 1320 (6th Cir. 1995). However, the Amendment does bar an action to enjoin state officials from violating state law. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984); Ernst v. Rising, 427 F.3d 351 (6th Cir. 2005)(en banc); Turker v. Ohio Dep't of Rehab. & Corr., 157 F.3d 453 (6th Cir. 1998); In re: Ohio Execution Protocol Litig. (Otte), 2017 U.S. App. LEXIS 17436 (6th Cir. Sept. 7, 2017), affirming In re: Ohio Execution Protocol Litig. (Tibbetts & Otte), 2017 U.S. Dist. LEXIS 107468 (S.D. Ohio July 12, 2017)(Merz, M.J.).
Sovereign immunity bars a plaintiff from using state law to enjoin state officials from carrying out their official responsibilities even when the officials are sued in their individual capacities. In re: Ohio Execution Protocol Litig. (Otte), 2017 U.S. App. LEXIS 17436 (6th Cir. Sept. 7, 2017), citing Williams v. Kentucky, 24 F.3d 1526, 1531, 1543 (6th Cir. 1994).
The Eleventh Amendment is a jurisdictional bar which federal courts are required to raise sua sponte if the parties fail to do so. Fairport Int'l Exploration, Inc., v. Shipwrecked VesselKnown as the Captain Lawrence, 105 F.3d 1078, 1082 (6th Cir. 1997); Wilson-Jones v. Caviness, 99 F.3d 203 (6th Cir. 1996).
Claims Upon Which Relief May Be Granted (Fed. R. Civ. P. 12(b)(6))
"The purpose of a motion under Rule 12(b)(6) is to test the formal sufficiency of the statement of the claim for relief; it is not a procedure for resolving a contest about the facts or merits of the case." Wright & Miller, FEDERAL PRACTICE AND PROCEDURE: Civil 2d §1356 at 294 (1990); see also Gex v. Toys "R" Us, 2007 U.S. Dist. LEXIS 73495, *3-5 (S.D. Ohio, Oct. 2, 2007); Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993), citing Nishiyama v. Dickson County, Tennessee, 814 F.2d 277, 279 (6th Cir. 1987). Stated differently, a motion to dismiss under Fed.R.Civ.P. 12(b)(6) is designed to test only the sufficiency of the complaint. Riverview Health Institute LLC v. Medical Mutual of Ohio, 601 F.3d 505, 512 (6th Cir. 2010).
The test for dismissal under Fed. R. Civ. P. 12(b)(6) was significantly restated by the Supreme Court in 2007:
Factual allegations must be enough to raise a right to relief above the speculative level, see 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed.2004)("[T]he pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action"), on the assumption that all the allegations in the complaint are true (even if doubtful in fact), see, e.g., Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508, n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989)("Rule 12(b)(6) does not countenance ... dismissals based on a judge's disbelief of a complaint's factual allegations"); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) ( ).
Bell Atl. Corp. v. Twombly, 550 U.S.544, 555 (2007).
[W]hen the allegations in a complaint, however true, could not raise a claim of entitlement to relief, "'this basic deficiency should ... be exposed at the point of minimum expenditure of time and money by the parties and the court.'" 5 Wright & Miller § 1216, at 233-234 (quoting Daves v. Hawaiian Dredging Co., 114 F. Supp. 643, 645 (D. Hawaii 1953) ); see also Dura [Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005)], at 346, 125 S.Ct. 1627, 161 L. Ed. 2d 577; Asahi Glass Co. v. Pentech Pharmaceuticals, Inc ., 289 F. Supp. 2d 986, 995 (N.D.Ill.2003) ( )("[S]ome threshold of plausibility must be crossed at the outset before a patent antitrust case should be permitted to go into its inevitably costly and protracted discovery phase").
Twombly, 550 U.S. at 558 ( ). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its fact,'" Doe v. Miami University, ___ F.3d ___, 2018 U.S. App. LEXIS 3075, *12-13 (6th Cir. Feb. 9, 2018), quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), in turn quoting Twombly, 550 U.S. at 570.
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