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

In re: OHIO EXECUTION PROTOCOL LITIGATION,

This Order relates to Plaintiffs Alva Campbell and Raymond Tibbetts

Case No. 2:11-cv-1016

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

November 3, 2017

Chief Judge Edmund A. Sargus, Jr.

Magistrate Judge Michael R. Merz

Execution Scheduled 11/15/2017

Execution Scheduled 02/13/2018

DECISION AND ORDER

This method-of-execution case, brought pursuant to 42 U.S.C. § 1983, is before the Court for decision of Plaintiff Tibbetts's Second Motion for a Stay of Execution, a Temporary Restraining Order, and a Preliminary Injunction (ECF No. 1261) and Plaintiff Campbell's Amended Motion for a Stay of Execution, a Temporary Restraining Order, and a Preliminary Injunction (ECF No. 1262). Defendants oppose the Motions (ECF Nos. 1282 & 1283) and Plaintiffs have filed a Joint Reply in support (ECF No. 1289). The Court heard testimony on the Motions October 23-27, 2017, and received written closing arguments (ECF Nos. 1354, 1355).

Jurisdictional Statement

The Court has subject matter jurisdiction of this case under 28 U.S.C. §§ 1331 and 1343. Tibbetts and Campbell have each consented to plenary magistrate judge jurisdiction under 28 U.S.C. § 636(c)(ECF Nos. 732. 938); the Defendants have also consented as to these two Plaintiffs (ECF Nos. 732, 942), and Chief Judge Sargus has referred the case on that basis (ECF Nos. 734, 943).

The relevant pleadings are Tibbetts's Fourth Amended Complaint ("Tibbetts 4AC", ECF No. 691) and Campbell's Fourth Amended Complaint ("Campbell 4AC", ECF No. 978).¹ Tibbetts pleads forty-eight Causes of Action, but his Motion is limited to seeking relief on his Fourth (Equal Protection), and Twentieth, Twenty-Second, Fortieth, and Forty-First (Eighth Amendment) claims. Campbell pleads forty-seven Causes of Action, but seeks relief in his Motion only on his Fourth (Equal Protection), and Twentieth and Twenty-First (Eighth Amendment) claims. At the end of the hearing on the motions, Campbell sought to add claims based on his individual physical characteristics (ECF No. 1350) which the Court has denied by separate order (ECF No. 1356)

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. United States v. Edward Rose & Sons, 384 F.3d 258, 261 (6^th Cir. 2014), citing Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981). Because of the prolixity of filings (ninety-five with 7,392 pages since the motions for preliminary injunction were filed) and the need for extreme haste in preparing this decision, it lacks the precision of reference to the record which this Magistrate Judge is accustomed to providing the reader.

Litigation History

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 31061-62.

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. 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 case;⁵ 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 Attorney General 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), certified that order for interlocutory appeal, and stayed the case 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 The Court⁷ then vacated the 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 (6^th Cir. 2016), cert den. sub nom. Tibbetts v. Dewine, 2017 U.S. LEXIS 5564 (Oct. 2, 2017). The circuit court upheld the protective order. Fears v. Kasich, 845 F.3d 231 (6^th Cir. 2016), cert. den. 2017 U.S. LEXIS 5875 (Oct. 2, 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 (S.D. Ohio, Jan. 26, 2017). Although affirmed by the hearing panel, that decision was reversed by the en banc Sixth Circuit, Fears v. Morgan, 860 F.3d 881 (6^th Cir. 2017); cert den. sub nom. Otte v. Morgan, ___ U.S. ___, 137 S. Ct. 2238 (2017). 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. The instant Motions were then filed on behalf of the next two Plaintiffs scheduled to be executed.⁸

General Standard for Preliminary Injunctive Relief and Stay of Execution

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

(1) whether [plaintiff] 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 (6^th Cir. 2009). Judge Frost applied these criteria when granting relief to Plaintiff Charles Lorraine. In re: Ohio Execution Protocol Litig.(Lorraine), 840 F. Supp. 2d 1044, 1048 (S.D. Ohio 2012). The Sixth Circuit consistently applies these criteria to preliminary injunctive relief requests across subject matter areas, Overstreet v. Lexington-Fayette Urban Co. Gov't, 305 F.3d 566, 573 (6^th 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 (6^th Cir. 1989); Frisch's Restaurant, Inc. v. Shoney's, Inc., 759 F.2d 1261, 1263 (6^th 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 (2008), citing Munaf v. Geren, 553 U.S. 674, 689-90 (2008); Amoco Prod. Co. v. Gambell, 480 U.S. 531, 542 (1987); Weinberger v. Romero-Barcelo, 456 U.S. 305, 311-12 (1982).

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...