In re Ohio Execution Protocol Litig., Case No. 2:11-cv-1016
| Decision Date | 14 January 2019 |
| Docket Number | Case No. 2:11-cv-1016 |
| Parties | IN RE: OHIO EXECUTION PROTOCOL LITIGATION This document relates to: Plaintiff Warren Henness |
| 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 for decision of Plaintiff Warren Keith Henness's Motion for a Stay of Execution and a Preliminary Injunction (ECF No. 19291). Defendants oppose the Motions (ECF No. 1934) and Plaintiff has filed a Reply in support (ECF No. 1942). The Court heard testimony on the Motions December 11-14, 2018, and received written closing arguments (ECF Nos. 2105, 2106). Transcripts of the hearing are at ECF Nos. 2112, 2113, 2117, and 2120.
The findings of fact and conclusions of law required by Fed.R.Civ.P.52 are embodied in this Decision and Order. They are not binding at trial on the merits or at future preliminary injunction proceedings in this consolidated case. United States v. Edward Rose & Sons, 384 F.3d 258, 261 (6th Cir. 2014), citing Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981).
Defendants' Position on the First Glossip Prong 22
Defendants' Position on the Second Glossip Prong 136
Expert Opinion on the Second Prong of Glossip 137
Court's Evaluation of the Evidence on the Second Prong of Glossip 144
The Court has subject matter jurisdiction of this case under 28 U.S.C. §§ 1331 and 1343. Henness and the Defendants have consented to plenary magistrate judge jurisdiction under 28 U.S.C. § 636(c) for purposes of the preliminary injunction motion and ancillary practice, and Chief Judge Sargus has referred the Motion on that basis (ECF No. 1912).
The relevant pleadings are Plaintiffs' Fourth Amended Omnibus Complaint (ECF No. 1252) and Henness's Second Amended Individual Supplemental Complaint (ECF No. 1494). Without denominating which of the numbered claims in those pleadings he is pursuing, Henness argues for injunctive relief on Eighth Amendment claims recognized in Glossip v. Gross, 135 S.Ct. 2726 (2015). Glossip was authoritatively interpreted in this consolidated case by the Sixth Circuit in Fears v. Morgan (In re: Ohio Execution Protocol), 860 F.3d 881 (6th Cir. 2017) (en banc), reversing 853 F.3d 822 (6th Cir. Apr. 6, 2017) and vacating preliminary injunction granted at In re Ohio Execution Protocol Litig. (Otte, Phillips, Tibbetts), 235 F. Supp. 3d 892 (S.D. Ohio 2017) (Merz, Mag. J.). Henness also argues a separate Eighth Amendment claim purportedly recognized in Baze v. Rees, 553 U.S. 35 (2008), requiring Ohio to adopt one of his alternative methods (ECF No. 1929, PageID 74975.)
This case and its predecessors,2 brought by most of Ohio's death row inmates, have been pending in this Court since very shortly after the Supreme Court allowed method-of-execution claims to be brought under § 1983. Nelson v. Campbell, 541 U.S. 637 (2004). District Judge Gregory Frost managed this litigation from its inception until his retirement in May 2016.
On December 5, 2011, with the agreement of counsel, Judge Frost consolidated all lethal injection method-of-execution § 19833 cases in this District, ordering:
Nature of agreement. In light of the then-anticipated filing of new complaints by numerous additional Ohio death row inmates who were not currently involved in the existing litigation, counsel for many of the plaintiffs proposed adopting procedures culled from multidistrict litigation, class action litigation, and mass tort litigation. Given the sheer number of plaintiffs that were either going to attempt intervention or file a new case, the parties and the Court therefore agreed to the filing of a new case and bifurcated pleading in which the majority of the new plaintiffs would file one omnibus complaint that sets forth all common factual allegations and claims and individualized supplemental complaints that set forth individualized factual allegations and individualized claims. It was agreed that the Court would then consolidate all the execution protocol cases under that new case number and close the four original cases on the docket so that the parties would be able to proceed under only one case. This led to the November 2011 filing that created Case No. 2:11-cv-1016.
Cooey v. Kasich, Case No. 2:04-cv-1156, ECF No. 1067, PageID 31061.
In the same Order, Judge Frost set a bench trial date of August 13, 2012, but no trial has ever been held in this case or its predecessors. Id. at PageID 31064. Over time since 2004, Judge Frost granted injunctive relief to some Plaintiffs and denied it to others, with varying results on appeal.4 The pattern has been of hurried litigation of preliminary injunction motions, with executions when relief was denied either in this Court or on appeal, rendering moot the claims of those executed. (See, e.g., ECF Nos. 675, 1130, and 1251.) There has never been a final judgment in the case5; appeals have all been on the grant or denial of preliminary injunctive relief, except for the interlocutory protective order appeal mentioned below.
There was a hiatus in Ohio executions after that of Dennis McGuire on January 16, 2014. Concerned about obtaining drugs for use in executions, the Ohio General Assembly, at the urging of then-Attorney General (now Governor) R. Michael DeWine, adopted H.B. 663 (codified at Ohio Revised Code §§ 2949.221 and 2949.222) to provide confidentiality to suppliers of execution drugs and sought a protective order in this case for that information. Judge Frost upheld the constitutionality of the new statutes, Phillips v. DeWine, 92 F. Supp. 3d 702 (S.D. Ohio 2015), granted the protective order (ECF No. 629, PageID 19409), certified that order for interlocutory appeal, and stayed this litigation pending appeal. Id. at PageID 19411-12.
Without awaiting the results of either of those appeals, Ohio announced a new execution protocol October 7, 2016, and scheduled executions at approximately one-month intervals to begin in January 2017 with former Plaintiff Ronald Phillips.6 (ECF No. 667.) The Court7 then vacated the litigation stay as to Plaintiffs Phillips, Tibbetts, and Otte and set an aggressive schedule to prepare for a preliminary injunction hearing on those three Plaintiffs' motions in early January 2017.
On November 2, 2016, the Sixth Circuit held death row inmates lacked standing to attack H.B. 663, affirming Judge Frost's dismissal of the attack on that legislation. Phillips v. DeWine, 841 F.3d 405 (6th Cir. 2016), cert den. sub nom. Tibbetts v. DeWine, 138 S.Ct.301 (2017). The circuit court upheld Judge Frost's protective order. Fears v. Kasich, 845 F.3d 231 (6th Cir. 2016), cert. den. 138 S.Ct. 191 (2017).
After hearing five days of testimony in January 2017, this Court preliminarily enjoined the executions of Phillips, Tibbetts, and Otte. In re Ohio Execution Protocol Litig., 235 F. Supp. 3d 892. Although affirmed by the hearing panel, that decision was reversed by the en banc Sixth Circuit, Fears v. Morgan, 860 F.3d 881. Phillips was executed the day after certiorari was denied. This Court denied Otte's renewed preliminary injunction motion. (ECF No. 1168, denied at ECF No. 1226.) He took no appeal and was executed September 13, 2017. (ECF No. 1251.)
Plaintiffs Alva Campbell, Jr. and Raymond Tibbetts then moved for preliminary injunctive relief (ECF Nos. 1261 and 1262).8 The Court denied those motions November 3, 2017 (ECF No. 1362; reported at In re Ohio Execution Protocol Litig, 2017 U.S. Dist. LEXIS 182406 (Merz, Mag. J.), aff'd Campbell v. Kasich, 881 F.3d 447 (6th Cir. 2018), cert den. sub nom. Tibbetts v. Kasich, 139 S.Ct. 216 (2018).
Plaintiff Warren Henness being the next plaintiff set for execution, the Court adopted in August 2018 a schedule for preliminary injunctive proceedings. (ECF No. 1914.)
The Court forebears any discussion of Henness's underlying crime. The appropriateness of punishing that crime capitally is committed to a jury and the Ohio courts, which have all found a death sentence appropriate. State v. Henness, 79 Ohio St. 3d 53 (1997). The constitutionality of that conclusion has been finally litigated in habeas corpus in the federal courts. Henness v. Bagley, No. 2:01-cv-43, 2007 U.S. Dist. LEXIS 80647 (S.D. Ohio Oct. 31, 2007) (Merz, Mag. J.), aff'd 644 F.3d 308 (6th Cir. 2011). What is pertinent to the instant case is the method of execution. The Constitution prohibits a cruel and unusual method of execution without regard to the heinousness of the crime.
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