In re Ohio Execution Protocol Litig.

In re: OHIO EXECUTION PROTOCOL LITIGATION,

This Order relates to Plaintiff Alva Campbell, Jr.

Case No. 2:11-cv-1016

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

August 14, 2017

Chief Judge Edmund A. Sargus, Jr.

Magistrate Judge Michael R. Merz

DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS PLAINTIFF CAMPBELL'S FOURTH AMENDED COMPLAINT

This case is before the Court on Motion of Defendants (ECF No. 998) to Dismiss the Fourth Amended Complaint of Plaintiff Alva Campbell (ECF No. 978). Plaintiff Campbell opposes the Motion (ECF No. 1021) and Defendants have filed a Reply in Support (ECF No. 1043).

A motion to dismiss involuntarily is a dispositive motion ordinarily excluded from Magistrate Judge decisional authority by 28 U.S.C. § 636(b)(1)(A). However, Plaintiff Campbell and the Defendants as it relates to this Plaintiff have unanimously consented to plenary magistrate judge jurisdiction under 28 U.S.C. § 636(c) and the case has been referred by Chief Judge Sargus on that basis (ECF Nos. 935, 943).

The Motion is made on behalf of Defendants other than the Unknown Pharmacies, Unknown Pharmacists, Unknown Drug Suppliers, and John Does who are not represented by counsel from the Ohio Attorney General's Office.

By separate order the Court has already dismissed Campbell's Forty-Sixth Cause of Action and certified that Order for final judgment so that appellate consideration of Campbell's claims under the Ohio Corrupt Practices Act can be coordinated with the appeal of Plaintiffs Tibbetts and Otte on their parallel claims (ECF No. 1138, 1139).

The Motion is made pursuant to Fed. R. Civ. P. 12(b)(1) to dismiss for lack of subject matter jurisdiction and Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted.

Subject Matter Jurisdiction

Because federal courts are courts of limited jurisdiction, they are empowered to hear only those cases which are within the judicial power of the United States as defined in the United States Constitution and as further granted to them by Act of Congress. Finley v. United States, 490 U.S. 545, 550 (1989); Aldinger v. Howard, 427 U.S. 1, 15 (1976). Therefore there is a presumption that a federal court lacks jurisdiction until it has been demonstrated. Turner v. President, Directors and Co. of the Bank of North America, 4 U.S. 8 (1799). Facts supporting subject matter jurisdiction must be affirmatively pleaded by the person seeking to show it. Bingham v. Cabot, 3 U.S. 382 (1798). The burden of proof is on the party asserting jurisdiction if it is challenged. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182-83 (1936). A federal court is further obliged to note lack of subject matter jurisdiction sua sponte.Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908); Capron v. Van Noorden, 6 U.S. 126 (1804); Answers in Genesis of Ky., Inc. v. Creation Ministries Int'l, Ltd., 556 F.3d 459, 465 (6^th Cir. 2009); Clark v. United States, 764 F.3d 653 (6^th Cir. 2014).

The burden of persuasion on a Rule 12(b)(1) motion is on the party asserting jurisdiction. Thomson v. Gaskill, 315 U.S. 442 (1942); Moir v. Greater Cleveland Regional Transit Authority, 895 F.2d 266 (6^th Cir. 1990); 5A Wright and Miller, Federal Practice and Procedure, Civil 2d §1350 (1990).

A facial attack is proper under rule 12(b)(1) and requires the Court to assume the truth of all allegations made by a plaintiff. DLX, Inc., v. Kentucky, 381 F.3d 511, 516 (6^th Cir. 2004), citing RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1133-35 (6^th Cir. 1996); United States v. Ritchie, 15 F.3d 592, 598 (6^th Cir. 1994); and Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6^th Cir. 1990).

"Because at issue in a factual [as opposed to facial] 12(b)(1) motion is the trial court's jurisdiction -- its very power to hear the case -- there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Mortensen v. First Federal Savings and Loan Ass'n, 549 F.2d 884, 890 (3^rd Cir. 1977), quoted in RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125 (6^th Cir. 1996); Rogers v. Stratton Industries, Inc., 798 F.2d 913 (6^th Cir. 1986).

The Court reads the Motion to Dismiss as raising a facial as opposed to a factual objection to subject matter jurisdiction. Moving Defendants argue that Plaintiff's claims are "so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as to not involve a federal controversy." (Motion, ECF No. 998, PageID 38226-27, quoting Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 (1998), quoting inturn Oneida Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661, 666 (1974).) Plaintiff does not respond to Defendants' Fed. R. Civ. P. 12(b)(1) argument.

In Steel Co., the Court rejected the practice of some lower courts of assuming jurisdiction and deciding a case's merits as violating the jurisdictional limits of Article III. Although they lacked Article III standing, the Citizens Association had pleaded a sufficiently substantial claim to satisfy that jurisdictional requirement. The Court held

It is firmly established in our cases that the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction, i.e., the courts' statutory or constitutional power to adjudicate the case. See generally 5A C. Wright & A. Miller, Federal Practice and Procedure § 1350, p. 196, n. 8 and cases cited (2d ed. 1990). As we stated in Bell v. Hood, 327 U.S. 678, 682, 90 L. Ed. 939, 66 S. Ct. 773 (1946), "jurisdiction . . . is not defeated . . . by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover." Rather, the District Court has jurisdiction if "the right of petitioners to recover under their complaint will be sustained if the Constitution and laws of the United States are given one construction and will be defeated if they are given another," id., at 685, unless the claim "clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous." Id., at 682-683; see also Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 285, 122 L. Ed. 2d 34, 113 S. Ct. 753 (1993); The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 57 L. Ed. 716, 33 S. Ct. 410 (1913). Dismissal for lack of subject-matter jurisdiction because of the inadequacy of the federal claim is proper only when the claim is "so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy." Oneida Indian Nation of N. Y. v. County of Oneida, 414 U.S. 661, 666, 39 L. Ed. 2d 73, 94 S. Ct. 772 (1974); see also Romero v. International Terminal Operating Co., 358 U.S. 354, 359, 3 L. Ed. 2d 368, 79 S. Ct. 468 (1959).

523 U.S. at 89. Certainly some if not all of Plaintiff's claims are arguable under the Constitution: a claim, for example, that a method of execution violates the Eighth Amendment is plainly cognizable in a proceeding under 42 U.S.C. § 1983. See Nelson v. Campbell, 541 U.S. 637 (2004), and Hill v. McDonough, 547 U.S. 573 (2006). There is thus federal question jurisdiction over this case. Defendants' general subject-matter jurisdiction defense is rejected (Motion, ECF No. 998, PageID 38226-27). Their Eleventh Amendment immunity defense id. at PageID 38227-30, is considered below with the relevant Causes of Action.

Cognizability

Moving Defendants seek dismissal under Fed. R. Civ. P. 12(b)(6) on the ground that many of Plaintiff's Causes of Action do not state a claim upon which relief can be granted. "The purpose of a motion under Rule 12(b)(6) is to test the formal sufficiency of the statement of the claim for relief; it is not a procedure for resolving a contest about the facts or merits of the case." Wright & Miller, FEDERAL PRACTICE AND PROCEDURE: Civil 2d §1356 at 294 (1990); see also Mayer v. Mylod, 988 F.2d 635, 638 (6^th Cir. 1993), citing Nishiyama v. Dickson County, Tennessee, 814 F.2d 277, 279 (6^th Cir. 1987); Gex v. Toys "R" Us, 2007 U.S. Dist. LEXIS 73495, *3-5 (S.D. Ohio, Oct. 2, 2007). Stated differently, a motion to dismiss under Fed. R. Civ. P. 12(b)(6) is designed to test the sufficiency of the complaint. Riverview Health Institute LLC v. Medical Mutual of Ohio, 601 F.3d 505, 512 (6^th Cir. 2010).

The test for dismissal under Fed. R. Civ. P. 12(b)(6) has been re-stated by the Supreme Court:

Factual allegations must be enough to raise a right to relief above the speculative level, see 5 C. Wright & A. Miller, FederalPractice and Procedure § 1216, pp. 235-236 (3d ed.2004)("[T]he pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action"), on the assumption that all the allegations in the complaint are true (even if doubtful in fact), see, e.g., Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508, n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989)("Rule 12(b)(6) does not countenance ... dismissals based on a judge's disbelief of a complaint's factual allegations"); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (a well-pleaded complaint may proceed even if it appears "that a recovery is very remote and unlikely").

[W]hen the allegations in a complaint, however true, could not raise a claim of entitlement to relief, "'this basic deficiency should ... be exposed at the point of minimum expenditure of time and money by the parties and the court.'" 5 Wright & Miller § 1216, at 233-234 (quoting Daves v. Hawaiian Dredging Co., 114 F. Supp. 643, 645 (D. Hawaii 1953) ); see also Dura [Pharmaceuticals, Inc. v.

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