The opinion of the court was delivered by: Judge Gregory L. Frost
Magistrate Judge Mark R. Abel
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 on the emergency motion of Kenneth Biros for a preliminary injunction or an order under the All Writs Act staying his execution, scheduled for January 23, 2007 (Doc. # 144). For the reasons that follow, this Court finds the motion well taken. Thus, it is ORDERED, ADJUDGED, and DECREED that the State of Ohio, and any person acting on its behalf, is hereby STAYED from implementing an order for the execution of Kenneth Biros issued by any court of the State of Ohio until further Order from this Court.
On November 9, 2006, this Court issued an order granting Plaintiff Kenneth Biros permission to intervene. (Doc. # 126.) On November 30, 2006, at the State's request, the Supreme Court of Ohio set an execution date for Biros of January 23, 2007. (Doc. # 126, at 1.) Accordingly, Biros filed the instant Emergency Motion for Preliminary Injunction on December 5, 2006. Also before the Court are the Defendants' brief in opposition (Doc. # 148) and Plaintiff's reply memorandum (Doc. # 149). On December 11, 2006, this Court conducted an informal telephone conference in accordance with S.D. Ohio Civ. R. 65.1. The motion is therefore now ripe for disposition.*fn1
It is well settled that "[t]he purpose of a preliminary injunction is always to prevent irreparable injury so as to preserve the court's ability to render a meaningful decision on the merits." United Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Regional Transit Authority, 163 F.3d 341, 348 (6th Cir. 1998) (quoting Stenberg v. Cheker Oil Co., 573 F.2d 921, 925 (6th Cir. 1978)). The decision of whether to issue a preliminary injunction rests within the discretion of the district court. See, e.g., N.A.A.C.P. v. City of Mansfield, 866 F.2d 162, 166 (6th Cir. 1989). In determining whether to exercise its discretion to grant a preliminary injunction, a district court must balance the following factors:
(1) whether the movant has a "strong" likelihood of success on the merits; (2) whether the movant would otherwise suffer irreparable injury; (3) whether issuance of a preliminary injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of a preliminary injunction.
McPherson v. Michigan High Sch. Athletic Ass'n, Inc., 119 F.3d 453, 459 (6th Cir. 1997) (en banc) (quoting Sandison v. Michigan High Sch. Athletic Ass'n, Inc., 64 F.3d 1026, 1030 (6th Cir. 1995)). This Court finds that each factor favors Biros's request for a preliminary injunction.
On October 17, 2006, this Court issued an opinion and order granting Jeffrey Lundgren's motion to intervene and motion for a preliminary injunction staying his execution. (Doc. # 92.) The Court incorporates that order by reference and attaches it for convenience.
Defendants appealed this Court's decision to the Sixth Circuit Court of Appeals. Following a denial by the En Banc Court of Defendants' request for an en banc hearing, the appeal was assigned under Internal Operating Rule 22 of the appellate rules of the Sixth Circuit to a panel consisting of Judges Merritt, Daughtrey, and Clay--the panel that ruled on Lundgren's habeas corpus appeal. That panel issued an order on October 23, 2006 transferring the appeal to a panel consisting of Judges Surheinrich, Siler, and Gilman--the panel assigned to case No. 05-4057, Cooey v. Taft. In so doing, the former panel reasoned that "[i]t would be grossly unfair for different panels of this Court to reach opposite conclusions on the issue of the constitutionality of Ohio's method of lethal injection so that some capital defendants are put to death by lethal injection while others similarly situated are spared." (Doc. # 107, at 2.)
Thereafter, on October 23, 2006, the "Cooey panel" issued a one-page, summary order vacating Lundgren's stay of execution. (Doc. # 123.) That order informed this Court that it had erred in granting Lundgren a preliminary injunction. Unfortunately, as this Court has previously lamented, the appellate order simply did not tell the Court how it had erred. Judge Gilman dissented, stating that he would have upheld the stay of execution issued by this Court because he found no abuse of discretion on this Court's part in its evaluation of the factors governing the grant of Lundgren's emergency motion for a preliminary injunction.
Construing the Sixth Circuit's Lundgren order as the law of this case, this Court on November 9, 2006 denied Plaintiff-Intervenor Jerome Henderson's motion for a preliminary injunction staying his execution (Doc. # 124), and on November 22, 2006 denied Plaintiff-Intervenor John Spirko's motion for a preliminary injunction staying his execution (Doc. # 137). The Court incorporates those orders by reference and attaches them for convenience. This Court stated unmistakably in both orders that although it was of the view that both plaintiffs were entitled to preliminary injunctions, the law of this case appeared to preclude this Court from granting their motions for preliminary injunctions.
A subsequent development punctured this law-of-the-case interpretation. On December 4, 2006, a panel of the Sixth Circuit consisting of Judges Norris, Batchelder, and Clay--the panel that previously ruled on Henderson's habeas corpus appeal and Rule 60(b) appeal--issued a summary order granting Henderson's motion for an emergency stay of execution, sparing Henderson from his execution that was scheduled for December 5, 2006.*fn2 (Doc. # 142.) Judge Batchelder dissented, stating in relevant part that she could not "reconcile the majority's decision to grant this stay with our prior decision to vacate the district court's grant of a stay to Jeffrey Lundgren less than six weeks ago." (Doc. # 142, at 1.)
Faced with two different orders by two different panels reaching two different conclusions, this Court is left with the task of determining what the law of this case is. Because neither order provides any reasoning for its outcome, this Court can only conclude that the law of the case is that this Court should evaluate individually and on a case-by-case basis each motion for a preliminary injunction that comes before it.*fn3
In other words, there is apparently no substantive law of the case as to all intervening plaintiffs here because there is no apparent consistency to the appellate ...