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Cooey v. Taft

November 9, 2006

RICHARD COOEY, ET AL., PLAINTIFF,
v.
ROBERT TAFT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Gregory L. Frost

Magistrate Judge Mark R. Abel

OPINION AND ORDER

Richard Cooey, a state prisoner sentenced to death by the State of Ohio, is the original plaintiff in a civil rights action pending before this Court that challenges multiple facets of the lethal injection protocol used by the State of Ohio. This matter is before the Court for consideration of movant Jerome Henderson's second amended emergency motion to intervene (Doc. # 104) and motion for a preliminary injunction (Doc. #106). For the reasons that follow, the Court GRANTS the former and DENIES the latter.

I. Second Amended Emergency Motion to Intervene

A. Statute of Limitations

Defendants first argue that it would be futile to allow Henderson to intervene because his § 1983 claims are time-barred. On March 28, 2005, this Court issued an Opinion and Order denying Defendants' motion to dismiss Cooey's civil rights action challenging multiple facets of Ohio's lethal injection protocol. (Doc. # 14.) In so doing, the Court stated the following about when the statute of limitations begins to run on such claims:

[T]he statute of limitations begins to run on method-of-execution challenges raised in a § 1983 action when two conditions are met: the execution becomes imminent and the plaintiff knows or has reason to know of the facts giving rise to his specific method-of-execution challenge. In terms of defining when an execution becomes imminent, this Court is of the view that an execution becomes imminent not necessarily when an execution date is set, but when all other legal challenges to the validity of a death sentence come to an end, i.e., when the plaintiff has exhausted all of his state and federal avenues of relief. In this Court's view, that occurs when the United States Supreme Court denies certiorari in the plaintiff's habeas corpus proceeding or otherwise issues a decision foreclosing federal habeas corpus relief. (Doc. # 14, at 11.) Defendants argue that Henderson's § 1983 claims began to accrue on April 25, 2002, when the United States Supreme Court denied certiorari in Henderson's habeas corpus appeal. Defendants insist that "[w]hile Henderson litigated a collateral Rule 60(b) action after that point in time, his execution date was 'imminent' at the moment the Supreme Court denied certiorari." (Doc. # 111, at 5.) Defendants reason that "if collateral litigation successfully staying an execution date changed the analysis, then this Court would have found that the statute of limitations never began for Cooey, who similarly avoided execution through collateral Rule 60(b) litigation before he resorted to filing the instant § 1983 action." (Doc. # 111, at 5.) Defendants conclude, therefore, that Henderson's two-year statute of limitations ran out on April 25, 2004. Defendants' arguments miss the mark and, for the reasons that follow, this Court finds that Henderson's § 1983 method-of-execution challenge is not time-barred.

The Court rejects Defendants' dubious argument that this Court's language defining when the statute of limitations begins to run on a § 1983 method-of-execution challenge forecloses the possibility that Henderson's collateral Rule 60(b) litigation tolled the statute in his case. Defendants' reason that "if collateral litigation successfully staying an execution date changed the analysis, then this Court would have found that the statute of limitations never began for Cooey, who similarly avoided execution through collateral Rule 60(b) litigation before he resorted to filing the instant § 1983 action." (Doc. # 111, at 5.) Fatal to Defendants' argument is that the fact of Cooey's collateral Rule 60(b) litigation was never before this Court for consideration when it issued its March 28, 2005 Opinion and Order (Doc. # 14) defining when a § 1983 method-of-execution claim accrues. This is the first that the Court has heard anything about Cooey's collateral Rule 60(b) litigation. Therefore, the language from this Court's March 28, 2005 order cannot be construed as expressing an opinion one way or the other about whether, or to what extent, collateral Rule 60(b) litigation may toll the statute of limitations on a § 1983 method-of-execution challenge. Defendants will not be heard to argue otherwise.

This Court's language in its March 28, 2005 decision defining when the statute of limitations begins to run on § 1983 method-of-execution challenges, as well as the reasoning supporting that definition, make it clear that the imminency of a plaintiff's execution is one of two paramount conditions that trigger the statute of limitations. (The other condition is when the plaintiff knows or has reason to know of the facts giving rise to his specific method-of-execution challenge.) The Court attempted, based on the limited facts it had before it at the time, to define when that usually occurs as to individuals under sentence of death, but the United States Supreme Court denying certiorari in the plaintiff's habeas corpus proceeding was but one occurrence that this Court offered that usually signals the imminency of a plaintiff's execution. The Court preceded that example by explaining that "an execution becomes imminent not necessarily when an execution date is set, but when all other legal challenges to the validity of a death sentence come to an end, i.e., when the plaintiff has exhausted all of his state and federal avenues of relief." (Doc. # 14, at 11.) That the Court did not then speculate about all of the various means by which a plaintiff could legitimately challenge the validity of his death sentence, staving off execution so that his execution is not imminent, should not now result in the absurd conclusion that Henderson's execution became imminent when the United States Supreme Court denied certiorari in his habeas corpus appeal in April 2002 and remained so even when, on July 10, 2003, the district court conditionally granted habeas corpus relief that invalidated Henderson's death sentence.

Defendants' argument assumes that, had this Court been aware of Cooey's collateral Rule 60(b) litigation, it would have found that the statute of limitations on Cooey's § 1983 method-of-execution challenge had never began to run. That is not necessarily the case. The Court made no such finding when it first considered the statute of limitations as to Cooey's § 1983 method-of-execution challenge, and the Court need not now say what effect, if any, Cooey's collateral Rule 60(b) litigation might have had on the running of his statute of limitations because the Court still has too few facts before it about that Rule 60(b) litigation.

With respect to Jerome Henderson, however, the Court has sufficient facts before it to say the following. Consistent with this Court's March 28, 2005 Opinion and Order (Doc. # 14), the statute of limitations could have began to run on Henderson's § 1983 method-of-execution challenge no earlier than April 15, 2002. That is when Henderson's execution became imminent by virtue of the United States Supreme Court's decision denying certiorari in his habeas corpus appeal. If Henderson knew or had reason to know of the facts giving rise to his specific method-of-execution challenge by that date, then the limitations period would have started to run.

But even assuming arguendo that both of the foregoing conditions were satisfied as of April 15, 2002, Henderson's claim is still not time-barred. The letter and spirit of this Court's March 28, 2005 Opinion and Order compel the conclusion that the statute of limitations on Henderson's § 1983 claim was equitably tolled on July 10, 2003, when the district court issued its decision conditionally granting habeas corpus relief that invalidated Henderson's death sentence. At that point, Henderson's execution was no longer imminent; it is absurd to suggest otherwise. And at that point, just over one year of Henderson's two-year statute of limitations had run, which means that Henderson was within the statute of limitations when he filed the instant motion to intervene.*fn1 The appellate mandate in those proceedings just issued in October 2006, and the filings indicate that Henderson is currently preparing to seek review from the United States Supreme Court. Having found that Henderson's § 1983 method-of-execution challenge is not time-barred, the Court rejects Defendants' argument that allowing Henderson to intervene would be futile.

B. Permissive Intervention

Having determined that Henderson's § 1983 method-of-execution challenge is not time-barred, the Court turns now to the question of whether intervention is warranted. As it did with respect to John Hicks, Jeffrey Hill, Johnnie Baston, Arthur Tyler, and Jeffrey Lundgren, the Court concludes that permissive intervention is warranted pursuant to Fed. R. Civ. P. 24(b)(2). That rule provides in relevant part:

Upon timely application anyone may be permitted to intervene in an action: ... (2) when an applicant's claim or defense and the main action have a question of law or fact in common. ... In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

Fed. R. Civ. P. 24(b)(2).

The Court must first determine whether the application to intervene is timely. In addressing ...


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