The opinion of the court was delivered by: Chief Magistrate Judge Michael R. Merz
District Judge Susan J. Dlott
DECISION AND ORDER GRANTING MOTION TO AMEND
This capital habeas corpus case is before the Court on Petitioner's Motion to Contemporaneously Receive Grant of the Court to File and Submit and File his First Amended Petition for the Writ of Habeas Corpus (Doc. No. 18). Respondent objects only to the effect of the amendment in dismissing the Tenth Ground for Relief which challenges Ohio's method of execution by lethal injection (Doc. No. 19).
Petitioner's counsel reads the Supreme Court's recent decision in Hill v. McDonough, 547 U.S. ___, 2006 U. S. LEXIS 4674 (June 12, 2006), following Nelson v. Campbell, 541 U.S. 637; 124 S.Ct. 2117; 158 L.Ed. 2d 924 (2004) , as requiring that such challenges be brought by way of an action for injunctive relief under 42 U.S.C. § 1983. The Court believes Respondent's competing reading of McDonough is correct: a §1983 action is a permissible, not mandatory, means of challenging the method of execution. This Court stands ready in the course of these habeas proceedings to litigate the constitutionality of Ohio's method of execution by lethal injection as it would be applied to Petitioner.
Nevertheless, in the absence of compulsion from the Supreme Court, there is no good reason to force Petitioner to litigate the claim in this proceeding. Where the law allows a choice of remedies, that choice is ordinarily left to the party seeking the remedy.
Respondent notes the caution from the Supreme Court that "federal courts can and should protect States from dilatory or speculative suits." Hill, 2006 U.S. LEXIS 4674 at *22. Respondent seeks this protection here, stating
The state's primary concern is that should the Court grant Fitzpatrick's motion, Fitzpatrick will subsequently attempt to construe the Court's order as authorization for him to delay pursuing what he maintains is his exclusive remedy -- an action under § 1983 -- until the completion of his habeas proceedings. The state therefore respectfully requests that in the event the Court grants Fitzpatrick's motion, the Court's order of dismissal explicitly provides that Fitzpatrick exercise diligence in pursuing relief via § 1983 or any other avenues for relief, and that the Court's order of dismissal does not constitute authorization for Fitzpatrick to delay pursuit of other avenues for relief pending the adjudication of the habeas corpus petition. (Response, Doc. No. 19, at 3.) To allay this concern, the Court notes that nothing in its granting of the instant Motion should be construed as authorizing Petitioner to delay pursuing any other remedy which may be available to him with respect to challenging the planned method of his execution.
On the other hand, it would be inappropriate for this Court to order Petitioner to "exercise diligence in pursuing relief via § 1983 or any other avenues for relief." While such relief might arguably be available under Fed. R. Civ. P. 41 if Petitioner were dismissing the entire action, that is not the case here. Rather, Petitioner seeks to amend the Petition before a responsive pleading is filed, which he can ordinarily do under 28 U.S.C. § 2242 and Fed. R. Civ. P. 15. Whether Petitioner has been diligent in pursuing his remedies will appropriately affect the outcome of any suit for equitable relief. See Pomeroy, A Treatise on Equity Jurisprudence §§ 418-419 (5th ed. 1941).*fn1 The State will have ample opportunity to protect its interests in any such litigation.*fn2
Accordingly, Petitioner's Motion to Amend is granted. Petitioner may file his First Amended Petition in the form attached to the Motion.
Michael R. Merz Chief United States ...