In re Ohio Execution Protocol Litig., Case No. 2:11-cv-1016

• Decision Date: 11 December 2018
• Docket Number: Case No. 2:11-cv-1016
• Parties: In re: OHIO EXECUTION PROTOCOL LITIGATION
• Court: U.S. District Court — Southern District of Ohio

In re: OHIO EXECUTION PROTOCOL LITIGATION

Case No. 2:11-cv-1016

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

December 11, 2018

Chief Judge Edmund A. Sargus, Jr.

Magistrate Judge Michael R. Merz

OPINION AND ORDER

This method-of-execution case, brought pursuant to 42 U.S.C. § 1983, is before the Court on the Defendants' Objection (ECF No. 1450) and the Plaintiffs' Objection (ECF No. 1457) to the Magistrate Judge's Report and Recommendation Granting in Part and Denying in Part the Defendants' Motion to Dismiss ("Report") (ECF No. 1429), and the Defendants' Objection (ECF No. 1767) and the Plaintiffs' Objection (ECF No. 1795) to the Magistrate Judge's Supplemental Report and Recommendation Granting in Part and Denying in Part Defendants' Motion to Dismiss ("Supplemental Report") (ECF No. 1620). For the reasons that follow, the Court OVERRULES all of the Objections, ADOPTS the Magistrate Judges Report and Supplemental Report, and GRANTS IN PART AND DENIES IN PART the Defendant's Motion to Dismiss. (ECF No. 1379.)

I.

The Plaintiffs in this consolidated action are death row inmates in the Ohio prison system who raise multiple constitutional challenges to the manner in which Ohio carries out executions. On November 20, 2017, the following Defendants filed a Motion to Dismiss the Plaintiffs' Fourth Amended Omnibus Complaint: Ohio Governor John Kasich; Director of the Ohio Department of Rehabilitation and Correction ("ODRC") Gary C. Mohr; employees of the ODRC Ronald Erdos, Donald Morgan, Stephen Gray, Edwin Voorhies, Richard Theodore, Charlotte Jenkins, and John Coleman; and un-named and anonymous execution team members ("Moving Defendants"). (ECF No. 1379.) The Plaintiffs filed a Memorandum in Opposition on December 27, 2017 (ECF No. 1406), and on January 10, 2018, the Moving Defendants filed a Reply in Support (ECF No. 1408).

On February 22, 2018, the Magistrate Judge issued his Report, in which he recommended granting in part and denying in part the Moving Defendants' Motion to Dismiss. (ECF No. 1429.) On March 8, 2018, the Moving Defendants filed their Objection to the Report. (ECF No. 1450), to which the Plaintiffs filed a response on March 19, 2018 (ECF No. 1457). On April 2, 2018, the Plaintiffs filed their Objection to the Report (ECF No. 1459), to which the Moving the Moving Defendants filed a response on April 5, 2018 (ECF No. 1462). In light of these Objections, this Court recommitted the matter to the Magistrate Judge for reconsideration. (ECF No. 1452.)

On May 8, 2018, the Magistrate Judge issued a Supplemental Report, in which he recommended granting in part and denying in part the Moving Defendants' Motion to Dismiss. (ECF No. 1620.) On May 22, 2018, the Moving Defendants Objected to the Supplemental Report (ECF No. 1767.) On June 11, 2018, the Plaintiffs' Objected to the Supplemental Report (ECF No. 1795), to which the Moving Defendants responded on June 25, 2018 (ECF No. 1808). The Objections to the Report and the Supplemental Report are ripe for review.

II.

In the Report and the Supplemental Report, the Magistrate Judge granted in part and denied in part the Moving Defendants' request for dismissal of the Plaintiffs' claims (1) under Federal Rule of Civil Procedure 12(b)(1) for lack of jurisdiction of the subject matter or based on sovereign immunity under the Eleventh Amendment, or (2) under Federal Rule of CivilProcedure 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.

A. Reports and Recommendations

"Any dispositive report and recommendation by a magistrate judge is subject to de novo review 'of those portions of the report or specified proposed findings or recommendations to which objection is made.' " Render v. Warden, S. Ohio Correctional Facility, 889 F. Supp. 2d 1014, 1019 (S.D. Ohio 2012) (citing Tuggle v. Seabold, 806 F.2d 87, 92 (6th Cir. 1986); 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(3)). The de novo review of a magistrate judge's report and recommendation is nondeferential and requires the district court to "give fresh consideration to those issues to which specific objection has been made." United States v. Raddatz, 447 U.S. 667, 675 (1980) (citation omitted).

B. Subject Matter Jurisdiction

Federal Rule of Civil Procedure 12(b)(1) governs dismissal for lack of subject matter jurisdiction. Generally, Rule 12(b)(1) motions fall into two general categories: facial attacks and factual attacks. Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007). The parties agree that Moving Defendants mount a facial attack, which is a challenge to the sufficiency of the pleading itself. On such a motion, the court must take the material allegations of the petition as true and construed in the light most favorable to the nonmoving party. Progressive Health and Rehab Corp. v. Strategy Anesthesia, LLC, 271 F. Supp. 3d 941, 945 (S.D. Ohio 2017) (citing Scheuer v. Rhodes, 416 U.S. 232, 235-37 (1974)).

C. Claims Upon Which Relief Can Be Granted

In evaluating a complaint to determine whether it states a claim upon which relief can be granted, the Court must construe it in favor of the plaintiff, accept the factual allegationscontained in it as true, and determine whether the factual allegations present any plausible claim. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-5570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (clarifying the plausibility standard articulated in Twombly). The factual allegations of a pleading "must be enough to raise a right to relief above the speculative level . . . ." Twombly, 550 U.S. at 555 (citation omitted).

D. Claims Under 42 U.S.C. § 1983

To state a claim under § 1983, the Plaintiffs must plead two elements: "(1) deprivation of a right secured by the Constitution or laws of the United States (2) caused by a person acting under color of state law." Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., 542 F.3d 529, 534 (6th Cir. 2008) (citing McQueen v. Beecher Cmty. Sch., 433 F.3d 460, 463 (6th Cir. 2006)).

III.

In the Moving Defendants' Motion to Dismiss, they request dismissal of eleven claims for relief filed by the Plaintiffs' in the Fourth Omnibus Complaint. The Court addresses each seriatim, utilizing the same titles for the claims as do the parties.

A. Second Cause of Action: Fourteenth Amendment Due Process Violations

In their Second Cause of Action, the Plaintiffs assert that they possess life, liberty, and property interests that were created by the Ohio Execution Statute (Ohio Revised Code § 2949.22(A)) and the Ohio Execution Protocol (ODRC Policy 01-COM-11), and that these state-created rights are protected by the Fourteenth Amendment Due Process Clause. Specifically, the Plaintiffs argue that the Ohio Execution Statute creates interests in expecting and receiving aquick and painless execution, and that the Ohio Execution Protocol creates interests in expecting and receiving a humane and dignified execution.

The Moving Defendants asserted that dismissal of this claim is required based on prior decisions in the instant litigation. Specifically, the Moving Defendants rely upon Cooey (Biros) v. Strickland, 589 F.3d 210, 234 (6th Cir. 2009), followed by Cooey (Henderson) v. Strickland, 2010 U.S. Dist. LEXIS 81841 (S.D. Ohio Aug. 12, 2010), as well as the rationale given in In re: Ohio Execution Protocol Litig. (Tibbetts & Otte), 2017 U.S. Dist. LEXIS 107468 (S.D. Ohio July 12, 2017), and In re: Ohio Execution Protocol Litig. (Campbell), 2017 WL 3479589 (S.D. Ohio Aug. 14, 2017). The Magistrate Judge agreed with the Moving Defendants and recommended dismissal of this claim for relief.

The Plaintiffs object to the Magistrate Judge's recommendation for two reasons. First, while the Plaintiffs concede Cooey (Biros) is binding precedent as to the Execution Statute, they object to preserve their right to appeal because they believe it was wrongly decided. As the Magistrate Judge correctly pointed out, however, this Court is bound by the precedent set by the Sixth Circuit in Cooey (Biros), in which the appellate court stated that "[Ohio Revised Code] § 2949.22 creates no cause of action to enforce any right to a quick and painless death." Cooey (Biros), 589 F.3d at 234. Therefore, the Court OVERRULES this Objection.

In the Plaintiffs' second argument, they contend that the Cooey (Biros) court did not expressly consider whether the Execution Protocol created enforceable due process rights, and Plaintiffs argue separately that it does. The Magistrate Judge recommended dismissal of this portion of the Second Cause of Action based on the rationale given in Tibbetts & Otte and Campbell. In Tibbetts and Otte the Court explained the rationale as to why the Execution Protocol did not create enforceable rights, addressing first the property interest, stating that

the notion of having a property interest in a humane and dignified execution is completely foreign to § 1983 jurisprudence. One can have a property interest in certain government benefits which is protected by procedural due process, but it is difficult to conceptualize an execution as something in which one could have a property interest.

In re Ohio Execution Protocol Litig. (Tibbetts & Otte), 1027 U.S. Dist. LEXIS 107468, at *36-37. With regard to a liberty or life interest, the Court in Tibbetts and Otte stated:

A liberty or life interest is easier to conceptualize under these circumstances. The logic appears to be that, since the Execution Protocol creates a duty, there must be a correlative right. . . . [S]o far as the undersigned is aware, neither the Sixth Circuit nor the Supreme Court has used the right-duty correlation to infer generally the existence of a state-created right protected under

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