In re Ohio Execution Protocol Litig.
| Decision Date | 08 May 2018 |
| Docket Number | Case No. 2:11-cv-1016 |
| Parties | In re: OHIO EXECUTION PROTOCOL LITIGATION, This Report relates to all Plaintiffs Except Raymond Tibbetts and Robert Van Hook |
| Court | U.S. District Court — Southern District of Ohio |
This capital § 1983 case is before the Court on Objections by Defendants (ECF No. 1450) and by Plaintiffs (ECF No. 1459) to the Magistrate Judge's Report and Recommendations ("Report," ECF No. 1429) recommending a disposition of Defendants' Motion to Dismiss the Fourth Amended Omnibus Complaint (ECF No. 1379). Plaintiffs have responded to Defendants' Objections (ECF No. 1457), Defendants have responded to Plaintiffs' Objections (ECF No. 1562), and Chief Judge Sargus has recommitted the matter for reconsideration in light of the Objections (ECF No. 1452).
The parties do not object to the Report's statement of the standard of review for motions to dismiss under either Fed. R. Civ. P. 12(b)(1) or 12(b)(6), although at several points Plaintiffs' object to how the Twombly/Iqbal standard is applied. The parties also correctly state that review of a Magistrate Judge's recommendation on a dispositive motion, such as the instant Motion to Dismiss, is for clear error as to facts and de novo as to the law.
In their Third Cause of Action, Plaintiffs complain of limitations on their ability to consult with counsel and counsel's ability to communicate with the courts or other relevant authorities, particularly the Governor, during the course of an execution (Fourth Amended Omnibus Complaint ("4AOC"), ECF No. 1252, PageID 45728-35, ¶¶ 1295-1328). Defendants sought dismissal on the basis of Judge Frost's decision in Cooey v. Strickland, 2011 U.S. Dist. LEXIS 8336, *39 (S.D. Ohio Jan. 29, 2011). The Report concluded that Judge Frost's decision was based on the then-existing record on access and that telephone access had been changed since then, but without development of an adequate record as yet. (ECF No. 1429, PageID 55227.)
In their Objections, Defendants again rely on Judge Frost's January 2011 decision cited above and the Magistrate Judge's Decision of November 14, 2017, denying leave to amend to add a new access claim to the claims of then-Plaintiff Alva Campbell, who was set to be executed the next day (ECF No. 1375). The proposed amendment would have addressed changes in access implemented after the Gary Otte execution, but before the attempted Campbell execution. The Magistrate Judge denied the amendment because the access being provided after the changes wasstill more than the access Judge Frost found to be constitutional. Defendants rely on the logic of this decision.
As Plaintiffs point out in response, Judge Frost's January 2011 summary judgment decision on the basis of the record then before him is not inconsistent with his prior decision that Plaintiffs' access claims did state a claim upon which relief could be granted, that is, that they survived the Rule 12(b)(6) test even if ultimately they could not pass the Rule 56 test. Plaintiffs also note that the Magistrate Judge's November 14, 2017, decision was, as it states on its face, issued in the haste necessary when a motion is made within twenty-four hours of a scheduled execution.
It is therefore again respectfully recommended that the Motion to Dismiss be denied as to the Third Cause of Action.
In their Fourth Cause of Action, Plaintiffs allege that they have been or will be treated differently from other similarly situated individuals in violation of the Equal Protection Clause of the Fourteenth Amendment (4AOC, ECF No. 1252, PageID 45735-78, ¶¶ 1329-1495). This Cause of Action comprises eighteen sub-claims, set out verbatim in the Report (ECF No. 1429, PageID 55228-30) which recommends dismissing all of the sub-claims except sub-claims A.1, A.10, B.1, and B.8.
Sub-claim A.1.
The Report concluded that while Sub-claim A.1 does not currently plead a threatened deviation from the Execution Protocol, it pleads "an equal protection theory which has been accepted by this Court in the past and resulted in the issuance of preliminary injunctive relief, towit, that deviations from at least some provisions of the Execution Protocol burden an inmate's right to be free of cruel and unusual punishment." (Report, ECF No. 1429, PageID 55244.) Defendants object that the pleading is too speculative and the Court has not found an equal protection violation on this theory since 2012 (Objections, ECF No. 1450, PageID 55398). Plaintiffs respond that they obtained relief on this theory in this case in the past (Response, ECF No. 1457, PageID 55427-31).
The current standard for evaluating whether a complaint states a claim turns on plausibility. "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 face.'" Doe v. Miami University, 882 F.3d 579 (6th Cir. 2018), quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), in turn quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Given that some Plaintiffs have obtained injunctive relief from this Court under this theory but on the facts that existed at the time of their imminent executions, it is not implausible that similar circumstances might be presented with future executions. In this sense, plausibility is about possible future facts. The Court could, therefore, dismiss Sub-claim A-1 for lack of present facts and then allow amendment if the facts change. The Magistrate Judge believes the better course is to leave Sub-claim A-1 stand as pleading an appropriate legal theory without appearing to repudiate it by dismissal at this stage.
Sub-claim A-10.
As to this sub-claim, the Report reads:
(Report, ECF No. 1429, PageID 55251.)
Defendants object essentially on the same basis as they objected on sub-claim A-1, to wit, that the sub-claim is "premised on [a] mere possibility of speculative intentional action and injury." (ECF No. 1450, PageID 55399.) Not so. Removal of the required drug concentrations from the Execution Protocol is undoubtedly an intentional action by Defendants: the Protocol did not amend itself. The question is the effect of that amendment. Defendants emphasize what the Report noted, to wit, that there has been no evidence on this claim presented in the three preliminary injunction hearings held since the amendment. But a preliminary injunction hearing is not a trial on all issues. If at the time of summary judgment practice the Plaintiffs have no evidence to support this claim, it will be time enough for dismissal.
Sub-claim B-1.
This is the first of eight equal protection sub- claims grounded in the class-of-one theory. The Report found that, as of yet, Defendants have not made or threatened any arbitrary classification of any one of the Plaintiffs that would support relief on that theory (ECF No. 1429, PageID 55253). Nonetheless, the Magistrate Judge recommended keeping this sub-claim in the Fourth Amended Omnibus Complaint on the same theory as sub-claim A-1 with the caveat "thatany particular Plaintiff will need to amend or supplement his individual complaint if he is threatened with particular deviations from the Execution Protocol at the time his execution becomes imminent." Id. at PageID 55254.
Defendants object that Plaintiffs have not in fact pleaded any actionable arbitrary classification. While that is true, it is the law of the case and consistent with equal protection theory generally that a class-of-one claim is cognizable in a § 1983 case. Plaintiffs' position on this sub-claim is less tenable than their position on sub-claim A-1 because there has been relief granted on that theory ("deviation from the Protocol") in the past, whereas no relief has been granted in this case on the class-of-one theory. Nevertheless, the Magistrate Judge adheres to his prior recommendation because the theory is sound if facts are eventually pleaded to support such a claim for relief.
Sub-claim B-8.
The Report recommended allowing sub-claim B-8 (removal of required drug concentrations) to stand on the same basis as sub-claim A-10 (ECF No. 1429, PageID 55255). Here again there has been no evidence yet presented to suggest that the removal of the concentrations was arbitrarily directed at any one Plaintiff and the generality of the amendment to remove the concentrations cuts strongly against that claim. Therefore, sub-claim B-8 is less plausible than sub-claim A-10. However, there is no prejudice to Defendants in allowing this claim to be tested in summary judgment rather than on a motion to dismiss.
In their Second Cause of Action Plaintiffs assert they have state-created life, liberty, and property interests created by the Ohio execution statute (Ohio Revised Code § 2949.22(A)) and the Ohio Execution Protocol (ODRC Policy 01-COM-11) which are protected by the Fourteenth Amendment Due Process Clause. (4AOC, ECF No. 1252, PageID 45722-28, ¶¶...
To continue reading
Request your trial