In re Ohio Execution Protocol Litig.

• Decision Date: 21 November 2020
• Docket Number: Case No. 2:11-cv-1016
• Parties: IN RE: OHIO EXECUTION PROTOCOL LITIGATION This document relates to Plaintiff Gregory Lott.
• Court: U.S. District Court — Southern District of Ohio

IN RE: OHIO EXECUTION PROTOCOL LITIGATION This document relates to Plaintiff Gregory Lott.

Case No. 2:11-cv-1016

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

November 21, 2020

District Judge Edmund A. Sargus, Jr.

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS: DEFENDANTS' MOTION TO DISMISS SHOULD BE GRANTED TO THE EXTENT IT CHALLENGES CLAIMS ALREADY DISMISSED FROM THE FOURTH AMENDED OMNIBUS COMPLAINT

This consolidated § 1983 method of execution case is before the Court on the Defendants' Motion to Dismiss (ECF No. 2706) the Fourth Amended Individual Supplemental Complaint of Plaintiff Gregory Lott ("ISC" ECF No. 2694). After the filing of a memorandum contra (ECF No. 2728) and a reply in support (ECF No. 2837), this Court heard oral argument on August 20, 2020 (Minute Entry, ECF No. 3170; Hrg. Tr., ECF No. 3259). For the reasons set forth below, Defendants' Motion should be GRANTED to the extent it challenges claims already dismissed from the Fourth Amended Omnibus Complaint ("4AOC") and DENIED in all other respects.

I. Background

A. Motion and Briefing

Defendants' briefing focuses largely on Plaintiff's claims concerning the three-drug method of execution and his allegations that this protocol produces constitutionally-prohibited pain, claims that Defendants argue have been rejected repeatedly and, thus, failed as matters of law (Lott Motion, ECF No. 2706, PageID 133832-33, citing Glossip v. Gross, 576 U.S. 863 (2015); . Henness v. DeWine, 946 F.3d 287 (6^th Cir. 2019) ("Henness II"), cert. denied, ___ S.Ct. ___, 208 L.Ed.2d 146 (2020) (copy at ECF No. 3355); Campbell v. Kasich, 881 F.3d 447 (6^th Cir. 2018); Fears v. Morgan, 860 F.3d 811 (6^th Cir. 2017) (en banc)). Defendants also claimed that "Lott does not allege specifically that any of his 'individual characteristics,' which include such things as his age, high cholesterol, obesity, past alcohol abuse, etc. are physical or medical conditions that in and of themselves will cause severe pain which Defendants' procedures would not remedy." This lack of plausible connection, Defendants argued, is fatal to Lott's "as-applied" claims. Id. at PageID 133834-35, citing Bucklew v. Precythe, 131 S.Ct. 1112, 1129 (2019); Glossip, 576 U.S. 863; Baze v. Rees, 553 U.S. 35 (2008). Moreover, Defendants argue that Lott's Twelfth, Twenty-Third, Twenty-Eighth, Twenty-Ninth, Thirty-Fifth through Forty-Second, and Forty-Fifth Causes of Action are not individual claims at all, as they "on their face do not allege anything 'unique' or 'individual' to Lott." Id. at PageID 133836, citing Lott ISC, ECF No. 2694, PageID 133334-90, 133360-63, 133388-98, 133406-61, ¶¶ 2275-90, 2368-78, 2470-97, 2532-2655, 2658-2725. Thus, Plaintiffs are left with nothing more than the facial challenges to a protocol that has been upheld repeatedly. Id. at PageID 133836-37 (citations omitted). Finally, they argue that Lott's proposed alternative methods—the second prong of Glossip—are immaterial in light of his inability to meet the first prong. Id. at PageID 133837, citing Lott ISC, ECF No. 2694, PageID 133258-133332, ¶¶ 1927-2263.

In his memorandum in opposition, Lott argues that Henness II¹ cannot serve as the basis toforeclose his claims as matters of law. First, he notes that Henness II was decided in overruling a motion for preliminary injunction, and thus, is not an adjudication on the merits (Lott MIO, ECF No. 2728, PageID 135134, quoting Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981); Hubbard Feeds, Inc. v. Animal Feed Supp., Inc., 182 F.3d 598, 603 (8th Cir. 1999); Thomas v. Blocker, No. 4:18-cv-812, 2019 U.S. Dist. LEXIS 45662, *3 n.14 (M.D. Pa. Mar. 20, 2019).) Second, Lott claims that contrary to Defendants' argument, no case, has ever foreclose challenges to the protocol as matters of law, and Henness II is no different. Id. at PageID 135135-36, citing Glossip, 576 U.S. 863; Campbell, 881 F.3d 447; Fears, 860 F.3d at 886. Rather, the relevant question was the "level of certainty" that unconstitutional pain and suffering would occur—not the degree of pain—and these cases simply held that the movants had failed to present sufficient evidence that the three-drug protocol was sure or likely to cause unconstitutional pain and 8suffering. Id. at PageID 135137-39, quoting Campbell, 881 F.3d at 449, 450-51; citing Glossip, 576 U.S. at 881; Fears, 860 F.3d at 890, 892.

Lott claims that the Defendants took the Henness II decision out of context, extrapolating from Warren K. Henness's factual failure to meet prong of Glossip a legal impossibility that a plaintiff could ever do so. This extrapolation was improper, as Henness II stated that it reached "the same conclusion" as Fears, and in Fears, the Sixth Circuit rejected Defendants' entreaties to bar categorically any challenge to the protocol. (Lott MIO, ECF No. 2728, PageID 135140, citing Henness II, 946 F.3d at 290-91; Campbell, 881 F.3d at 449-51; Fears, 860 F.3d at 886, 890, 892). Similarly, Lott claims that the Sixth Circuit's rejection of Henness's claim that midazolam-induced pulmonary edema constituted unconstitutional pain was "speculation on the court's part, illustrating that an inmate like Lott must present more robust evidence to more clearly demonstratethe degree of risk and degree of pain and suffering inflicted by acute, non-cardiogenic pulmonary edema." Id. at PageID 135143. Lott argues that if Henness II did hold that pain from pulmonary edema could never be unconstitutional, then that holding was contrary to Supreme Court and Sixth Circuit precedent. Id. at n.2, citing Baze, 553 U.S. 35; Campbell, 881 F.3d 447; Fears, 860 F.3d 881.

Third, Lott claims that Defendants' argument regarding his individual characteristics not themselves causing severe pain is immaterial (Lott MIO, ECF No. 2728, PageID 135155-56, citing Lott Motion, ECF No. 2706, PageID 133835, 133836). The relevant issue is whether those individual characteristics are likely to cause him severe pain when the protocol is administered, and Lott argues that he has alleged sufficient nexus between his characteristic and the likelihood that they will cause severe pain. Id. at PageID 135156-58.

As to Defendants' argument that "many of Lott's claims asserted in his individual supplemental complaint 'do not allege anything "unique" or "individual" to Lott[,]'" (Lott MIO, ECF No. 2728, PageID 135157, quoting Lott Motion, ECF No. 2706, PageID 133836), as immaterial and "simply incorrect. Indeed, that position fundamentally misunderstands the entire point of the ISC's [sic] in this case, which was to allow claims that required individual considerations to be pleaded in addition to those claims alleged in the omnibus complaint." Id. at PageID 135157-58.² Finally, Lott argues that the pleaded alternatives were not intended to be causes of action themselves, but as a necessary component of section 1983 claims in light of Glossip, and to enable the Court to conduct the required comparative analysis that, he claims, the Sixth Circuit failed to conduct in Henness II. Id. at PageID 135158-59, citing Bucklew, 139 S.Ct.at 1129-33; Henness II, 946 F.3d at 291; Lott Motion, ECF No. 2706, PageID 133837.

Lott claims that, for four reasons, his ISC is plausible under that comparative analysis, as his proposed alternatives, accepted as true, are feasible, readily implemented, and substantially reduce the risk of severe pain (Lott MIO, ECF No. 2728, PageID 135159, citing Bucklew, 139 S.Ct. at 1136 (Kavanaugh, J., concurring); Arthur v. Dunn, 137 S.Ct. 725, 733-734 (2017) (Sotomayor, J., dissenting from denial of certiorari); Lott Motion for Prelim. Inj., ECF No. 2695, ECF No. 2696, PageID 133643-92; 133737-79). First, "absent a sufficiently protective initiatory drug" to protect the inmate, the paralytic and potassium chloride will produce severe pain. Id. at PageID 135126-27; Baze, 553 U.S. at 53; Fears, 860 F.3d at 885-86; Campbell, 881 F.3d at 450-51. Second, midazolam not only causes severe pain and terror akin to suffocation and waterboarding, it also does not and cannot attenuate the pain of the second and third drugs. Id. at PageID 135160. Third, Lott's alternatives are available, feasible, and readily implemented. Fourth, Defendants have offered no legitimate reason not to use the alternative methods. Id. at PageID 135161, citing Baze, 553 U.S. at 50. Lott argues that because his claims are legally well-founded, and Defendants do not argue that his factual allegations are insufficient, Defendants' Motion should be denied. Id. at PageID 135162, quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

In their Reply, Defendants claim that Lott's argument that Henness II, Campbell, and Fears were "just preliminary injunctions" is disingenuous, given that Henness II held categorically that the pain associated with midazolam-induced pulmonary edema did not violate the Eighth Amendment, and that Fears was an en banc decision vacating a panel decision, an action undertaken "'only in the most compelling circumstances,' and simple disagreement with the panel's decision normally doesn't fit the bill." (Lott Reply, ECF No. 2837, PageID 152270-71,quoting Mitts v. Bagley, 626 F.3d 366, 370 (6^th Cir. 2010) (Kethledge, J., concurring); citing Air Line Pilots Ass'n Int'l v. E. Air Lines, Inc., 863 F.2d 891, 925, (D.C. Cir. 1988) (Ginsburg, J., concurring in the denial of rehearing en banc). Moreover, the Sixth Circuit's categorical bar to Henness's claim in Henness II was "consistent with the approach taken by Chief Justice [John G.] Roberts[, Jr.] in Baze[,]" id. at PageID 152271, in which the Court rejected challenges to Kentucky's three-drug protocol and Chief Justice Roberts, in his plurality opinion, stated that "[a] State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard." Id. at PageID 152271-72, quoting Baze, 553 U.S. at 61; citing Cooey (Biros) v. ...