In re Ohio Execution Protocol Litig.

• Decision Date: 22 February 2018
• Docket Number: Case No. 2:11-cv-1016
• Parties: In re: OHIO EXECUTION PROTOCOL LITIGATION, This Report relates to all Plaintiffs except Alva Campbell, Jr., Raymond Tibbetts, and Robert Van Hook
• Court: U.S. District Court — Southern District of Ohio

In re: OHIO EXECUTION PROTOCOL LITIGATION, This Report relates to all Plaintiffs except Alva Campbell, Jr., Raymond Tibbetts, and Robert Van Hook

Case No. 2:11-cv-1016

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION AT COLUMBUS

February 22, 2018

Chief Judge Edmund A. Sargus, Jr.

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

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).

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.

Motions to dismiss involuntarily are dispositive pre-trial motions on which an assigned Magistrate Judge must render a report and recommendations for disposition. Plaintiffs Raymond Tibbetts and Robert Van Hook are excluded from this Report because they, and the State Defendants with respect to them, have unanimously consented to plenary magistrate jurisdiction under 28 U.S.C. § 636(c)(ECF Nos. 732, 951, respectively) and Chief Judge Sargus has referred their cases on that basis (ECF Nos. 734, ). The Magistrate Judge will decide separately the Motion as it relates to them. Plaintiff Alva Campbell, Jr., is excluded from this Report because he has filed a superseding Fifth Amended Complaint (ECF No. 1407) which is subject to a separate motion to dismiss (ECF No. 1409) and he has also consented to plenary Magistrate Judge jurisdiction (ECF No. 938).

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. Plaintiffs do not question the appropriateness of Defendant's filing a motion to dismiss at this stage of the case.

Generally Applicable Law

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 (6^th Cir. 1990); 5A Wright and Miller, Federal Practice and Procedure, Civil 2d §1350 (1990).

Plaintiffs assert 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 Plaintiffs 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 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 (6^th 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 (6^th Cir. 2005)(en banc); Turker v. Ohio Dep't of Rehab. & Corr., 157 F.3d 453 (6^th Cir. 1998); In re: Ohio Execution Protocol Litig. (Otte), 2017 U.S. App. LEXIS 17436 (6^th 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 (6^th Cir. Sept. 7, 2017), citing Williams v. Kentucky, 24 F.3d 1526, 1531, 1543 (6^th 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 Vessel Known as the Captain Lawrence, 105 F.3d 1078, 1082 (6^th Cir. 1997); Wilson-Jones v. Caviness, 99 F.3d 203 (6^th 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 (6^th Cir. 1993), citing Nishiyama v. Dickson County, Tennessee, 814 F.2d 277, 279 (6^th 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 (6^th 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) (a well-pleaded complaint may proceed even if it appears "that a recovery is very remote and unlikely").

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) (Posner, J., sitting by designation) ("[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 (overruling Conley v. Gibson, 355 U.S. 41, 45-46 (1957), and specifically disapproving of the proposition from Conley that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief"). "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 (6^th Cir. Feb. 9, 2018), quoting Ashcroft v. Iqbal, 556 U.S. 662,...