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Richard Cooey, et al v. John Kasich

November 4, 2011

RICHARD COOEY, ET AL., PLAINTIFFS,
v.
JOHN KASICH, ET AL., DEFENDANTS.
BRETT HARTMAN, PLAINTIFF,
v.
JOHN KASICH, ET AL., DEFENDANTS.
ROMELL BROOM, PLAINTIFF,
v.
JOHN KASICH, ET AL., DEFENDANTS.
LAWRENCE REYNOLDS, PLAINTIFF,
v.
JOHN KASICH, ET AL., DEFENDANTS.



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

Magistrate Judge Mark R. Abel

Magistrate Judge E.A. Preston Deavers

Magistrate Judge Mark R. Abel

Magistrate Judge Mark R. Abel

OPINION AND ORDER

This litigation has too often supported the inherent truth of the adage that those who cannot learn from history are doomed to repeat it. With some caution, the Court today reaches the conclusion that the State of Ohio has apparently learned the lessons of its prior embarrassments and corrected its course in order to pursue court-ordered implementation of its latest written execution protocol.

The captioned cases are before the Court for consideration of Plaintiff Reginald Brooks' motion for a temporary restraining order and a preliminary injunction (ECF No. 1022) and Defendants' memorandum in opposition (ECF No. 1042).*fn1 Similar to those filings related to inmates who previously sought to stay scheduled execution dates, the issue presented by the briefing sub judice is relatively simple: has Plaintiff demonstrated that he is likely to succeed in establishing that the Ohio has an unconstitutional execution policy so that he deserves a stay of execution that will afford him the chance to prove his case? Because Plaintiff has failed to demonstrate a substantial likelihood of succeeding on his Equal Protection claim, this Court finds the motion for injunctive relief not well taken.

I. Background*fn2

The captioned consolidated cases are 42 U.S.C. § 1983 civil rights actions that challenge multiple facets of the execution protocol used by the State of Ohio. Plaintiff Reginald Brooks is an inmate on Ohio's death row who is set to be executed on November 15, 2011. On September 29, 2011, Plaintiff filed a motion for leave to file an amended complaint (ECF No. 1021) and his motion for a temporary restraining order and preliminary injunction to stay his execution (ECF No. 1022). Pursuant to S. D. Ohio Civ. R. 65.1(a), the Court therefore held an informal preliminary conference with the parties on that same day, at which the Court set a briefing schedule on intervention and scheduled a hearing date if the injunctive relief issue became ripe. (ECF No. 1023.) This Court subsequently granted Plaintiff's opposed motion to intervene and permitted the filing of his complaint. (ECF No. 1038.) In that pleading, Plaintiff asserts Eighth Amendment and Fourteenth Amendment challenges to Ohio's execution practices via § 1983. (ECF No. 1039.)

From October 31, 2011 through November 2, 2011, the Court held a hearing on Plaintiff's motion for injunctive relief. Both sides presented testimony and submitted written closing statements to supplement their briefing. The Court took the issue of injunctive relief under advisement.

II. Analysis

A. Standard involved

In considering whether injunctive relief staying Plaintiff's execution is warranted, this Court must consider (1) whether Plaintiff has demonstrated a strong likelihood of success on the merits; (2) whether Plaintiff will suffer irreparable injury in the absence of equitable relief; (3) whether a stay would cause substantial harm to others; and (4) whether the public interest is best served by granting a stay. Cooey v. Strickland, 589 F.3d 210, 218 (6th Cir. 2009) (citing Workman v. Bredesen, 486 F.3d 896, 905 (6th Cir. 2007); Ne. Ohio Coal. for Homeless & Serv. Employees Int'l Union, Local 1199 v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006)). As the Sixth Circuit has explained, " '[t]hese factors are not prerequisites that must be met, but are interrelated considerations that must be balanced together.' " Id. (quoting Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991)).

B. Likelihood of success*fn3

On July 8, 2011, this Court issued a decision in which the Court set forth at length numerous deviations by state actors from the state execution protocol then in effect, including core deviations that subverted the key constitutional principles that control the execution process. This Court found that [t]he perplexing if not often shocking departures from the core components of the execution process that are set forth in the written protocol not only offend the Constitution based on irrationality but also disturb fundamental rights that the law bestows on every individual under the Constitution, regardless of the depraved nature of his or her crimes.

(ECF No. 947, at 59.) Consequently, this Court enjoined Ohio and any person acting on its behalf from implementing an order for the execution of Plaintiff Kenneth Smith until further Order from this Court.

Defendants did not appeal the Smith decision and instead set about revising Ohio's execution protocol. This resulted in the current iteration of the state's execution protocol, which became effective on September 18, 2011. In the interim period between the Smith decision and today, no scheduled execution proceeded. Defendant Kasich granted Plaintiff Brett Hartman a reprieve (ECF No. 955), Plaintiff Billy Slagle a reprieve (ECF No. 982), and commuted former plaintiff Joseph Murphy's sentence to life in prison without the possibility of parole (ECF No. 1006).

Bringing Defendants back before this Court, Plaintiff argues that little has changed--and that the protocol and its implementation may have become even worse--since the Smith decision. Defendants in contrast present themselves as, essentially, having found religion in the vernacular, appropriately secular sense. Invoking a new protocol and a convenient but nonetheless credible newfound conversion (or at least return) to following their own rules and the Constitution, Defendants attempt to hit the reset button on this litigation. They assert that they get the message, that they recognize the constitutional principles that apply to their actions, and that they more than ever regard the new and improved protocol as binding and not advisory or aspirational. To support these contentions, they have presented testimony from key decisionmakers who control the state execution process, some of whom have laudably reversed course in their approach both to the protocol and the obligations the Constitution imposes.

Now, bereft of testimony revealing Ohio's execution protocol to be merely advisory guidelines subject to being disregarded at whim, Plaintiff has essentially presented a two-track narrative most easily summarized as do not believe Defendants and do not credit their meaningless protocol revisions. These are perhaps not unreasonable positions given Defendants' history in this litigation, which is not to say that these are prevailing positions. Plaintiff's theory of the case is that having been burned in the Smith decision for truthfully if no doubt inadvertently characterizing their protocol as a compilation of ultimately meaningless guidelines, Defendants have figured out that paying lip service to what is important to this Court (i.e., what is important to the Constitution) is the better strategy. Plaintiff also posits that what Ohio has presented as salvaging changes to the protocol are at best cosmetic glosses that do not resolve core problems and are at worst conflicting words that serve only to introduce additional and perhaps even greater problems than those recognized in the Smith decision.

Plaintiff's arguments fall under his fourth claim, which asserts an Equal Protection violation under 42 U.S.C. § 1983.*fn4 Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

42 U.S.C. § 1983. Thus, in order to prevail on a § 1983 claim, Plaintiff must show that, while acting under color of state law, Defendants deprived or will deprive him of a right secured by the Federal Constitution or laws of the United States. See Alkire v. Irving, 330 F.3d 802, 813 (6th Cir. 2003). Plaintiff's Second Amended Complaint asserts that "Defendants' overarching execution policy, including their wholly discretionary approach to their written execution protocol and their informal policies, violates [his] rights to equal protection under the law as guaranteed by the Fourteenth Amendment." (ECF No. 1039 ΒΆ 475.) He contends that the September 18, 2011 protocol is facially invalid because it codifies disparate treatment of similarly situated individuals without sufficient justification so as to be arbitrary, ...


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