In re Ohio Execution Protocol Litig.

• Decision Date: 26 January 2017
• Docket Number: Case No. 2:11–cv–1016
• Citation: 235 F.Supp.3d 892
• Parties: IN RE: OHIO EXECUTION PROTOCOL LITIGATION This Order relates to Plaintiffs Phillips, Tibbetts, and Otte.
• Court: U.S. District Court — Southern District of Ohio

235 F.Supp.3d 892

IN RE: OHIO EXECUTION PROTOCOL LITIGATION

This Order relates to Plaintiffs Phillips, Tibbetts, and Otte.

Case No. 2:11–cv–1016

United States District Court, S.D. Ohio, Eastern Division, at Columbus .

Signed January 26, 2017

Michael R. Merz, United States Magistrate Judge

DECISION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTIONS FOR PRELIMINARY INJUNCTION

This consolidated case under 42 U.S.C. § 1983 is brought by Ohio inmates under a sentence of death and seeks relief from a number of asserted constitutional deficiencies in Ohio's new lethal injection protocol adopted October 7, 2016.

The above-named inmates and the State of Ohio unanimously consented to plenary magistrate judge jurisdiction over their cases (ECF No. 732) and Chief Judge Sargus referred these three cases on that basis (ECF No. 734). Hence the Magistrate Judge is authorized to decide the pending motions for temporary injunctive relief even though they are classified as "dispositive" motions under 28 U.S.C. § 636(b)(1)(A).

This Decision and Order embodies the findings of fact and conclusions of law required for a preliminary injunction decision under Fed. R. Civ. P. 52. They are not binding at trial on the merits. United States v. Edward Rose & Sons , 384 F.3d 258, 261 (6th Cir. 2004), citing Univ. of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981).

In the most recent preliminary injunction decision in this case, Judge Frost wrote:

The recent history of this litigation and its often frustrating factual developments can be found in the following Opinion and Orders, which this Court expressly incorporates herein by reference: In re Ohio Execution Protocol Litigation (Phillips) , No. 2:11–cv–1016, 2013 U.S. Dist. LEXIS 159680, 2013 WL 5963150 (S.D. Ohio Nov. 7, 2013) ; In re Ohio Execution Protocol Litigation (Hartman) , 906 F.Supp.2d 759 (S.D. Ohio 2012), In re Ohio Execution Protocol Litigation (Wiles), 868 F.Supp.2d 625 (S.D. Ohio 2012), In re Ohio Execution Protocol Litigation (Lorraine) , 840 F.Supp.2d 1044 (S.D. Ohio 2012), Cooey (Brooks) v. Kasich , Nos. 2:04–cv–1156, 2:09–cv–242, 2:09–cv–823, 2:10–cv–27, 2011 U.S. Dist. LEXIS 128192, 2011 WL 5326141 (S.D. Ohio Nov. 4, 2011), and Cooey (Smith) v. Kasich, 801 F.Supp.2d 623 (S.D. Ohio 2011).

In re Ohio Execution Protocol Litigation , 994 F.Supp.2d 906, 908, n.2 (S.D. Ohio 2014).

Rather than incorporate by reference another judge's writing, this Court states it considers itself bound by the law of the case stated in these decisions and by decisions of the Sixth Circuit in prior appeals in this case and 2:04–cv–1156.

Current Litigation Context

Most Ohio death row inmates are Plaintiffs in this case which has been pending under the above case number since 2011 and under the prior caption Cooey v. Strickland, 2:04–cv–1156, since shortly after the Supreme Court authorized use of § 1983 to attack methods of execution in Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004).

Each of the above-named three Plaintiffs has an execution date set between February 15 and April 12, 2017. Although execution dates for these three Plaintiffs were first set some time ago, they have been extended by action of Governor John Kasich several times, most recently by Warrants of Reprieve as to Plaintiffs Phillips and Tibbetts (ECF No. 848).

The intention of the State of Ohio to proceed with three executions in the first quarter of 2017 was announced to Plaintiffs' counsel in open court on October 3, 2016. At that time the State also announced its intention to promulgate, on October 7, 2016, the protocol by which the executions would be carried out (see Minute Entry, ECF No. 655; Transcript, ECF No. 672).

Based on this announcement, the Court vacated the stay of these proceedings as to the three named Plaintiffs and set a schedule for the filing of a Fourth Amended Complaint to reflect the new protocol and the briefing of motions for preliminary injunctive relief (Order Partially Vacating Stay and Setting Schedule, ECF No. 658). In compliance with that schedule, each of these Plaintiffs filed a motion for preliminary injunctive relief, including a stay of execution (ECF Nos. 714, 715, 718). As required by the same scheduling order, Defendants filed their consolidated memorandum in opposition a week later (ECF No. 730).

To protect the decisional process of the Sixth Circuit on the then-pending interlocutory appeal in this case, the Court entered a preliminary injunction pendente lite (ECF No. 834) which was appealed by the State (ECF No. 841). The Sixth Circuit then decided the interlocutory appeal on Judge Frost's protective order. Fears v. Kasich , 845 F.3d 231 (6th Cir. 2016). This obviated the reason for the pendente lite stay and it was dissolved (ECF No. 910). The Court commenced a five-day evidentiary hearing on the preliminary injunction motions January 3, 2017.

The Pending Motions for Injunctive Relief

As provided in the Court's scheduling order, each of the above-named Plaintiffs filed a Fourth Amended Complaint on October 26, 2016, to address Ohio's newly revised execution protocol (ECF Nos. 691, 692, 695).¹ Complying with the same Order, they each filed Motions for Preliminary Injunction and concomitant stays of execution in November (ECF Nos. 714, 715, 718).²

Plaintiffs claim that their executions under the new Ohio protocol would violate their constitutional rights as follows:

1. Under the Cruel and Unusual Punishment Clause of the Eighth Amendment because the new protocol embodies a reversion to a "more primitive, less humane execution method" than Ohio has heretofore used. (E.g., Plaintiff Raymond Tibbetts' First Claim for Relief, denominated Wilkerson –Kemmler Claim and relying on Wilkerson v. Utah , 99 U.S. 130 [25 L.Ed. 345 (1878) ] (1879) ; In re Kemmler , 136 U.S. 436 [10 S.Ct. 930, 34 L.Ed. 519] (1890) ; and Trop v. Dulles, 356 U.S. 86 [78 S.Ct. 590, 2 L.Ed.2d 630] (1958). Plaintiffs argue separate Eighth Amendment claims in their Proposed Findings as an "evolving standards of decency"/"devolution" claim under Trop and an Eighth Amendment claim under Wilkerson –Kemmler in which they are not required to prove an available alternative method of execution.

2. Under the Cruel and Unusual Punishment Clause of the Eighth Amendment because a three-drug execution method which includes midazolam, a paralytic, and potassium chloride creates a substantial risk of serious harms (E.g., Plaintiff Raymond Tibbetts' Third and Fourth Claims for Relief, denominated Baze –Glossip Claims and relying on Baze v. Rees, 553 U.S. 35 [128 S.Ct. 1520, 170 L.Ed.2d 420] (2008), and Glossip v. Gross, 576 U.S. ––––, 135 S.Ct. 2726, 192 L.Ed.2d 761 (2015).)

3. Under the Equal Protection Clause on a class-of-one theory and relying on the State of Ohio's alleged violations of prior execution protocols (E.g., Plaintiff Raymond Tibbetts' Eighth Claim for Relief).

4. On claims under the doctrines of judicial admissions, judicial estoppel, and promissory estoppel (E.g., Plaintiff Raymond Tibbetts' Sixth Claim for Relief).

Standard for Preliminary Injunctive Relief

In determining whether preliminary injunctive relief is merited in a capital § 1983 case, a trial or appellate court applies the following established standards:

(1) whether [petitioner] 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). Judge Frost applied these same criteria 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 on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of the equities tips in his favor, and that an injunction is in the public interest.

Winter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008), citing Munaf v. Geren , 553 U.S. 674, 689–90, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008) ; Amoco Prod. Co. v. Gambell , 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) ; Weinberger v. Romero–Barcelo , 456 U.S. 305, 311–12, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). The Court notes the Supreme Court statement of the standard does not attempt to quantify the degree of likelihood of success.

The purpose of a preliminary injunction is to preserve a court's power to render a meaningful decision after a trial on the merits. Alabama v. U.S. Army Corps of Engineers , 424 F.3d 1117, 1128 (11th Cir. 2005), quoting Wright, Miller & Kane, Federal Practice and Procedure: Civil, § 2946.

Although the fundamental fairness of preventing irremediable harm to a party is an

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