United States District Court, S.D. Ohio, Eastern Division, Columbus
In re OHIO EXECUTION PROTOCOL LITIGATION This relates to Plaintiffs Alva Campbell and Raymond Tibbetts
A. Sargus, Jr., Chief Judge
DECISION AND ORDER
Michael R. Merz, United States Magistrate Judge
method-of-execution case, brought pursuant to 42 U.S.C.
§ 1983, is before the Court for decision of Plaintiff
Tibbetts's Second Motion for a Stay of Execution, a
Temporary Restraining Order, and a Preliminary Injunction
(ECF No. 1261) and Plaintiff Campbell's Amended Motion
for a Stay of Execution, a Temporary Restraining Order, and a
Preliminary Injunction (ECF No. 1262). Defendants oppose the
Motions (ECF Nos. 1282 & 1283) and Plaintiffs have filed
a Joint Reply in support (ECF No. 1289). The Court heard
testimony on the Motions October 23-27, 2017, and received
written closing arguments (ECF Nos. 1354, 1355).
Court has subject matter jurisdiction of this case under 28
U.S.C. §§ 1331 and 1343. Tibbetts and Campbell have
each consented to plenary magistrate judge jurisdiction under
28 U.S.C. § 636(c)(ECF Nos. 732. 938); the Defendants
have also consented as to these two Plaintiffs (ECF Nos. 732,
942), and Chief Judge Sargus has referred the case on that
basis (ECF Nos. 734, 943).
relevant pleadings are Tibbetts's Fourth Amended
Complaint (“Tibbetts 4AC”, ECF No. 691) and
Campbell's Fourth Amended Complaint (“Campbell
4AC”, ECF No. 978).Tibbetts pleads forty-eight Causes of
Action, but his Motion is limited to seeking relief on his
Fourth (Equal Protection), and Twentieth, Twenty-Second,
Fortieth, and Forty-First (Eighth Amendment) claims. Campbell
pleads forty-seven Causes of Action, but seeks relief in his
Motion only on his Fourth (Equal Protection), and Twentieth
and Twenty-First (Eighth Amendment) claims. At the end of the
hearing on the motions, Campbell sought to add claims based
on his individual physical characteristics (ECF No. 1350)
which the Court has denied by separate order (ECF No. 1356)
findings of fact and conclusions of law required by
Fed.R.Civ.P. 52 are embodied in this Decision and Order. They
are not binding at trial on the merits or at future
preliminary injunction proceedings. United States v.
Edward Rose & Sons, 384 F.3d 258, 261
(6th Cir. 2014), citing Univ. of Texas v.
Camenisch, 451 U.S. 390, 395 (1981). Because of the
prolixity of filings (ninety-five with 7, 392 pages since the
motions for preliminary injunction were filed) and the need
for extreme haste in preparing this decision, it lacks the
precision of reference to the record which this Magistrate
Judge is accustomed to providing the reader.
case and its predecessors,  brought by most of Ohio's
death row inmates, have been pending in this Court since very
shortly after the Supreme Court allowed method-of-execution
claims to be brought under § 1983. Nelson v.
Campbell, 541 U.S. 637 (2004). District Judge Gregory
Frost managed this litigation from its inception until his
retirement in May 2016.
December 5, 2011, with the agreement of counsel, Judge Frost
consolidated all lethal injection method-of-execution §
cases in this District, ordering:
In light of the then-anticipated filing of new complaints by
numerous additional Ohio death row inmates who were not
currently involved in the existing litigation, counsel for
many of the plaintiffs proposed adopting procedures culled
from multidistrict litigation, class action litigation, and
mass tort litigation. Given the sheer number of plaintiffs
that were either going to attempt intervention or file a new
case, the parties and the Court therefore agreed to the
filing of a new case and bifurcated pleading in which the
majority of the new plaintiffs would file one omnibus
complaint that sets forth all common factual allegations and
claims and individualized supplemental complaints that set
forth individualized factual allegations and individualized
claims. It was agreed that the Court would then consolidate
all the execution protocol cases under that new case number
and close the four original cases on the docket so that the
parties would be able to proceed under only one case. This
led to the November 2011 filing that created Case No.
Cooey v. Kasich, Case No. 2:04-cv-1156, ECF No.
1067, PageID 31061-62.
same Order, Judge Frost set a bench trial date of August 13,
2012, but no trial has ever been held in this case or its
predecessors. Over time since 2004, Judge Frost granted
injunctive relief to some Plaintiffs and denied it to others,
with varying results on appeal. The pattern has been of hurried
litigation of preliminary injunction motions, with executions
when relief was denied either in this Court or on appeal,
rendering moot the claims of those executed (See,
e.g., ECF Nos. 675, 1130, and 1251). There has never
been a final judgment in the case;appeals have all been on the
grant or denial of preliminary injunctive relief, except for
the interlocutory protective order appeal mentioned below.
was a hiatus in Ohio executions after that of Dennis McGuire
on January 16, 2014. Concerned about obtaining drugs for use
in executions, the Ohio General Assembly, at the urging of
Attorney General DeWine, adopted H.B. 663 (codified At Ohio
Revised Code §§ 2949.221 and 2949.222) to provide
confidentiality to suppliers of execution drugs and sought a
protective order in this case for that information. Judge
Frost upheld the constitutionality of the new statutes
(Phillips v. DeWine, 92 F.Supp.3d 702 (S.D. Ohio
2015), granted the protective order (ECF No. 629), certified
that order for interlocutory appeal, and stayed the case
pending appeal. Id. at PageID 19411-12.
awaiting the results of either of those appeals, Ohio
announced a new execution protocol October 7, 2016, and
scheduled executions at approximately one-month intervals to
begin in January 2017 with former Plaintiff Ronald
Phillips. The Court then vacated the stay as to
Plaintiffs Phillips, Tibbetts, and Otte and set an aggressive
schedule to prepare for a preliminary injunction hearing on
those three Plaintiffs' motions in early January 2017.
November 2, 2016, the Sixth Circuit held death row inmates
lacked standing to attack H.B. 663, affirming Judge
Frost's dismissal of the attack on that legislation.
Phillips v. DeWine, 841 F.3d 405 (6th
Cir. 2016), cert den. sub nom. Tibbetts v.
Dewine, 2017 U.S. LEXIS 5564 (Oct. 2, 2017). The circuit
court upheld the protective order. Fears v. Kasich,
845 F.3d 231 (6th Cir. 2016), cert. den.
2017 U.S. LEXIS 5875 (Oct. 2, 2017).
hearing five days of testimony in January 2017, this Court
preliminarily enjoined the executions of Phillips, Tibbetts,
and Otte. In re: Ohio Execution Protocol Litig., 235
F.Supp.3d 892 (S.D. Ohio, Jan. 26, 2017). Although affirmed
by the hearing panel, that decision was reversed by the
en banc Sixth Circuit, Fears v. Morgan, 860
F.3d 881 (6th Cir. 2017); cert den. sub nom.
Otte v. Morgan, ___ U.S. ___, 137 S.Ct. 2238
(2017). Phillips was executed the day after certiorari was
denied. This Court denied Otte's renewed preliminary
injunction motion (ECF No. 1168, denied at ECF No. 1226). He
took no appeal and was executed September 13, 2017. The
instant Motions were then filed on behalf of the next two
Plaintiffs scheduled to be executed.
Standard for Preliminary Injunctive Relief and Stay of
determining whether preliminary injunctive relief is merited
in a capital § 1983 case, a trial or appellate court
must apply the following established standards:
(1) whether [plaintiff] has demonstrated a strong likelihood
of success on the merits; (2) whether he will suffer
irreparable injury in the absence of equitable relief; (3)
whether the stay will cause substantial harm to others; and
(4) whether the public interest is best served by granting
the stay. Workman v. Bredesen, 486 F.3d 896, 905
(6th Cir. 2007); [N.E.]. Ohio Coal. for Homeless &
Serv. Employees Int'l Union, Local 1199 v.
Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006).
"These factors are not prerequisites that must be met,
but are interrelated considerations that must be balanced
together." Mich. Coal. of Radioactive Material
Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir.
Cooey (Biros) v. Strickland, 589 F.3d 210, 218
(6th Cir. 2009). Judge Frost applied these
criteria when granting relief to Plaintiff Charles Lorraine.
In re: Ohio Execution Protocol Litig. (Lorraine),
840 F.Supp.2d 1044, 1048 (S.D. Ohio 2012). The Sixth Circuit
consistently applies these criteria to preliminary injunctive
relief requests across subject matter areas, Overstreet
v. Lexington-Fayette Urban Co. Gov't, 305 F.3d 566,
573 (6th Cir. 2002); Nightclubs, Inc. v. City of
Paducah, 202 F.3d 884, 888 (6th Cir. 2000);
Washington v. Reno, 35 F.3d 1093, 1099 (6th Cir.
1994); NAACP v. City of Mansfield, 866 F.2d 162, 166
(6th Cir. 1989); Frisch's Restaurant, Inc.
v. Shoney's, Inc., 759 F.2d 1261, 1263 (6th Cir.
1985); In re DeLorean Motor Co., 755 F.2d 1223, 1228
(6th Cir. 1985).
Court case law is consistent:
A plaintiff seeking a preliminary injunction must establish
that he is likely to succeed on the merits, that he is likely
to suffer irreparable harm in the absence of preliminary
relief, that the balance of the equities tips in his favor,
and that an injunction is in the public interest.
Winter v. Natural Res. Def. Council, Inc., 555 U.S.
7, 20 (2008), citing Munaf v. Geren, 553 U.S. 674,
689-90 (2008); Amoco Prod. Co. v. Gambell, 480 U.S.
531, 542 (1987); Weinberger v. Romero-Barcelo, 456
U.S. 305, 311-12 (1982).
purpose of a preliminary injunction is to preserve a
court's power to render a meaningful decision after a
trial on the merits. Alabama v. U.S. Army Corps of
Engineers, 424 F.3d 1117, 1128 (11th Cir. 2005),
quoting Wright, Miller & Kane, Federal Practice
and Procedure: Civil, § 2946.
Although the fundamental fairness of preventing irremediable
harm to a party is an important factor on a
preliminary-injunction application, the most compelling
reason in favor of entering a Rule 65(a) order is the need to
prevent the judicial process from being rendered futile by
defendant's action or refusal to act. . . . [T]he
preliminary injunction is appropriate whenever the policy of
preserving the court's power to decide the case
effectively outweighs the risk of imposing an interim
restraint before it has done so.
Id. at § 2947.
to enjoin an imminently pending execution will obviously
render the case moot as to that inmate long before any trial
can be held. As noted above, there has never been a trial in
this case; Plaintiffs who failed to obtain preliminary
injunctive relief have had their cases rendered moot by their
stays of execution are not to be granted routinely. A court
must weigh the interest of a State in carrying out a lawful
death sentence and its parallel interest in finality of
criminal judgments. Workman v. Bredesen, 486 F.3d
896, 912-13 (6th Cir. 2007).
reversing this Court's prior grant of preliminary
injunctive relief to Phillips, Tibbetts, and Otte, the Sixth
Circuit held the Plaintiffs failed to demonstrate likelihood
of success on the merits, the first branch of the preliminary
injunction test. Fears v. Morgan, 860 F.3d 881, 892
(6th Cir. 2017). This Court found for the
Plaintiffs on the irreparable harm, balance of equities, and
public interest branches. In re Ohio Execution Protocol
Litig., 235 F.Supp.3d 892, 959-60 (S.D. Ohio Jan. 26,
2017). The Sixth Circuit did not disturb those conclusions on
appeal and they apply here precisely as they did in the
earlier decision. Therefore this Decision addresses only the
likelihood of success on the merits branch of the test.
Standard for 42 U.S.C. § 1983 Relief
U.S.C. § 1983, R.S. § 1979, was adopted as part of
the Act of April 20, 1871, and reads in pertinent part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, 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 . . . .
statute creates a cause of action sounding essentially in
tort on behalf of any person deprived of a constitutional
right by someone acting under color of state law. City of
Monterey v. Del Monte Dunes at Monterey, Ltd.,
526 U.S. 687, 709 (1999); Memphis Community School
District v. Stachura, 477 U.S. 299 (1986);
Carey v. Piphus, 435 U.S. 247 (1978). “The
purpose of § 1983 is to deter state actors from using
the badge of their authority to deprive individuals of their
federally guaranteed rights and to provide relief to victims
if such deterrence fails.” Wyatt v. Cole, 504
U.S. 158, 161 (1992). In order to be granted relief, a
plaintiff must establish that the defendant deprived him of a
right secured by the Constitution and the laws of the United
States and that the deprivation occurred under color of state
law. See West v. Atkins, 487 U.S. 42, 48 (1988);
Parratt v. Taylor, 451 U.S. 527, 535 (1981);
Flagg Brothers Inc. v. Brooks, 436 U.S. 149, 155
and served as Defendants in this case are Ohio Governor John
Kasich, Ohio Department of Rehabilitation and Corrections
(“ODRC”) Director Gary Mohr, and Director
Mohr's subordinates in the ODRC Ronald Erdos, Donald
Morgan, Stephen Gray, Edwin Voorhies, Richard Theodore,
Charlotte Jenkins, John Coleman, and anonymous members of the
Execution Team. These Defendants are referred to herein
collectively as the State Defendants. Each of them is sued in his
or her official capacity and for acts done under color of
state law (See, e.g., Campbell 4AC, ¶ 27, ECF
No. 978, PageID 36356.)
against state officials in their official capacities are
deemed actions against the State itself. Kentucky v.
Graham, 473 U.S. 159, 165 (1985). A State is not a
person within the meaning of § 1983. Will v.
Michigan Dept. of State Police, 491 U.S. 58 (1989). An
action against a state official in his official capacity for
injunctive relief is not barred by the Eleventh Amendment.
Ex parte Young, 209 U.S. 123 (1908); Cory v.
White, 457 U.S. 85 (1982); Thomson v. Harmony,
65 F.3d 1314, 1320 (6th Cir. 1995), but
declaratory relief regarding past conduct is barred by that
Amendment, Green v. Mansour, 474 U.S. 64 (1985).
impose liability on a governmental entity for the acts of one
of its agents, a plaintiff must prove that the agent acted
pursuant to custom or policy. Monell v. New York City
Dept. of Social Services, 436 U.S. 658, 690
(1978). An unconstitutional governmental policy can be
inferred from a single decision by the highest officials
responsible for setting policy in a particular area of the
government's business. Owen v. City of
Independence, 445 U.S. 622 (1980); Pembaur v. City
of Cincinnati, 475 U.S. 469 (1986). On the other hand,
official policy cannot be inferred from the single
unauthorized act of a subordinate government agent, e.g., an
unauthorized shooting by a police officer. Oklahoma City
v. Tuttle, 471 U.S. 808 (1985); Radvansky v. City of
Olmsted Falls, 395 F.3d 291, 311 (6th Cir.
2005)(“By itself, ‘the wrongful conduct of a
single officer without any policy-making authority did not
establish municipal policy.'" quoting Collins v.
City of Harker Heights, 503 U.S. 115');">503 U.S. 115, 121 (1992)).
of the Case Doctrine
this is a consolidated case with a long history, there have
been many prior rulings, both of this Court and the Sixth
Circuit, which may be applicable under law of the case
doctrine. Both parties have relied on that doctrine in
arguing the instant Motions.
the doctrine of law of the case, findings made at one point
in litigation become the law of the case for subsequent
stages of that same litigation. United States v.
Moored, 38 F.3d 1419, 1421 (6th Cir. 1994),
citing United States v. Bell, 988 F.2d 247, 250
(1st Cir. 1993). "As most commonly defined,
the doctrine [of law of the case] posits that when a court
decides upon a rule of law, that decision should continue to
govern the same issues in subsequent stages in the same
case." Arizona v. California, 460 U.S. 605, 618
(1983), citing 1B Moore's Federal Practice
¶0.404 (1982); Patterson v. Haskins, 470 F.3d
645, 660-61 (6th Cir. 2006); United States v.
City of Detroit, 401 F.3d 448, 452 (6th Cir.
2005). Judge Sutton recently gave the rationale: “If it
is important for courts to treat like matters alike in
different cases, it is indispensable that they ‘treat
the same litigants in the same case the same way throughout
the same dispute.'” United States v.
Charles, 843 F.3d 1142, 1145 (6th Cir. 2016)
quoting Bryan A. Garner, et al., The Law of Judicial
Precedent 441 (2016).
"law of the case directs a court's discretion, it
does not limit the tribunal's power." Southern
R. Co. v. Clift, 260 U.S. 316, 319 (1922); Messenger
v. Anderson, 225 U.S. 436 (1912)(Holmes, J.); see
also Gillig v. Advanced Cardiovascular Sys., Inc., 67
F.3d 586, 589-90 (6th Cir. 1995). “At the
trial level, the doctrine of the law of the case is little
more than a management practice to permit logical progression
toward judgment. Prejudgment orders remain interlocutory and
can be reconsidered at any time.” Moore's Federal
Practice at ¶0.404.
Sixth Circuit has recently written about occasions when
following the law of the case may be inappropriate.
We generally will not disturb these [prior holdings] unless
there is '(1) an intervening change of controlling law;
(2) new evidence available; or (3) a need to correct a clear
error or prevent manifest injustice.'"
Entm't Prods., Inc. v. Shelby Cnty., 721 F.3d
729, 742 (6th Cir. 2013), cert. denied, 134 S.Ct.
906, 187 L.Ed.2d 778 (2014) (quoting Louisville/Jefferson
Cnty. Metro Gov't v. Hotels.com, L.P., 590 F.3d 381,
389 (6th Cir. 2009))
Howe v. City of Akron, 801 F.3d 718, 741
(6th Cir. 2015). These factors mirror those used
in deciding a motion for reconsideration. Meekison v.
Ohio Dep't of Rehabilitation & Correction, 181
F.R.D. 571, 572 (S.D. Ohio 1998)(Marbley, J.).
mandate rule is a specific application of the law-of-the-case
doctrine. The basic tenet of the mandate rule is that a
district court is bound to the scope of the remand issued by
the court of appeals. United States v. Campbell, 168
F.3d 263, 265 (6th Cir. 1999). The mandate rule is
a distinct concept which preserves the hierarchy of the court
system. Scott v. Churchill, 377 F.3d 565, 570
(6th Cir. 2004). Trial courts are obliged to
follow precedent set by Supreme Court and Courts of Appeals.
"Unless we wish anarchy to prevail within the federal
judicial system, a precedent of this Court must be followed
by the lower federal courts no matter how misguided the
judges of those courts may think it to be." Hutto v.
Davis, 454 U.S. 370, 375 (1982).
consolidated case which has had over one hundred Plaintiffs,
each with his life at stake, over 2, 400 filings (comprising
over 80, 000 pages), twelve preliminary injunction hearings,
and twenty appeals, the law of the case doctrine should play
an important part. Soon after being assigned management of
this case in October 2016, the Magistrate Judge sought the
views of the parties and stated his own understanding of the
law of the case doctrine (Notice, ECF No. 728, PageID
23044-46, relying largely on Westside Mothers v.
Olszewski, 454 F.3d 532, 538 (6th Cir.
2006).) The Magistrate Judge has recently applied the
doctrine to the shifting law in capital litigation in the
Sixth Circuit. Sheppard v. Jenkins, 2017 U.S. Dist.
LEXIS 170666, *4-5 (S.D. Ohio Oct. 16, 2017). The gist of
this Court's present understanding is that prior rulings
in the case, just like precedent from other courts, should be
understood based on the context in which they were made and
therefore applied with a great deal of nuance, and not like
that context is the speed with which decisions have
necessarily been made. Many of the prior District Court and
Sixth Circuit decisions in this case, like this one, have
required more speed and less deliberation than far less
weighty decisions facing judges. The speed with which
decisions must be made and opinions written inevitably
affects their utility in deciding future cases. See
Daniel Kahneman, Thinking, Fast and Slow, for which Kahneman
was awarded the Nobel Prize in economics.
of the case is analyzed and applied separately below to the
Eighth Amendment and Equal Protection claims litigated in
this preliminary injunction proceeding.
Pending Motions for Injunctive Relief
Tibbetts was a movant in the January 2017 preliminary
injunctive proceedings where he sought relief on his Fourth,
Thirty-Fifth, Thirty-Sixth, Thirty-Seventh, Thirty-Eighth,
Fortieth, Forty-First, Forty-Third, and Forty-Fifth Causes of
Action. He now seeks preliminary injunctive relief on his
Fourth (Equal Protection), Twentieth, Twenty-Second,
Fortieth, and Forty-First Causes of Action (Cruel and Unusual
Punishment). Defendants have not questioned his procedural
right to move for preliminary injunctive relief a second
was not a movant in the January 2017 preliminary injunction
proceedings which were limited to those Plaintiffs who had
consented to Magistrate Judge jurisdiction prior to the
hearing. Campbell now seeks preliminary injunctive relief on
his Fourth, Twentieth, and Twenty-Second Causes of Action
which read identically to Tibbetts's Fourth, Twentieth,
and Twenty-Second Causes of Action.
Plaintiffs argue their Eighth Amendment claims first, the
Court will follow their order of presentation.
AMENDMENT CRUEL AND UNUSUAL PUNISHMENT CLAIMS
their Twentieth and Twenty-Second Causes of Action, Campbell
and Tibbetts assert that their executions pursuant to
Ohio's current execution protocol, 01-COM-11 (revised
October 7, 2016, hereinafter the “Execution
Protocol”) will subject them to cruel and unusual
punishment in violation of the Eighth Amendment to the United
States Constitution. Those claims read
Twentieth Cause of Action: Eighth Amendment
Violation Based On Substantial Risk Of Serious Harm In The
Form Of Severe, Needless Physical Pain And Suffering Due To
The Identity Of The Drugs In The Execution Protocol.
Twenty-Second Cause of Action: Eighth
Amendment Violation Based On Substantial Risk Of Serious Harm
In The Form Of Severe Mental Or Psychological Pain, Suffering
And Torturous Agony Due To The Identity Of The Drugs In The
(Tibbetts 4AC, ECF No. 691, PageID 20025; Campbell 4AC, ECF
No. 978, PageID 36344-45).
additional Eighth Amendment claims read:
Fortieth Cause of Action: Eighth Amendment
Violation Based On DRC Defendants' Use Of A Three-Drug
Execution Method With Midazolam As The First Of The Three
Forty-First Cause of Action: Eighth
Amendment Violation Based On DRC Defendants' Use Of
Midazolam In The Execution Protocol.
(Tibbetts 4AC, ECF No. 691, PageID 20026.)
Eighth Amendment Standard
Branch: Serious Pain and Needless Suffering
prevail on an Eighth Amendment challenge to a method of
execution, Plaintiffs must prove that the challenged method
“presents a risk that is sure or very likely to cause
serious pain and needless suffering.” Fears v.
Morgan, supra, at 886.
Fears the Sixth Circuit criticized this Court's
reliance on language from Baze as stating the
Yet here the district court's opinion was seriously
flawed nonetheless. To begin with, that opinion did not apply
the relevant legal standard, which by now the Supreme Court
and our court have recited a total of four times.
Specifically, to challenge successfully a State's chosen
method of execution, the plaintiffs must "establish that
the method presents a risk that is sure or very likely to
cause" serious pain and "needless
suffering[.]" Glossip, 135 S.Ct. at 2737
(emphasis in original) (internal quotations marks omitted);
see also Baze, 553 U.S. at 50 (same); Cooey v.
Strickland (Cooey II), 604 F.3d 939, 944 (6th Cir. 2010)
(same); Cooey v. Strickland (Cooey I), 589 F.3d 210,
220 (6th Cir. 2009) (same). Instead, the district court
addressed only whether Ohio's procedure presents a
"substantial risk of serious harm, " Baze,
553 U.S. at 50 (internal quotation marks omitted). That
standard is correct so far as it goes; but it elides the more
rigorous showing-that the method of execution is sure or very
likely to cause serious pain- that the Supreme Court and our
court have repeatedly said is necessary to satisfy the
"substantial risk" standard in the particular
context present here. Accord McGehee, 854 F.3d at
Fears, supra, at 886. This standard is now
undoubtedly the law of this case and was so before
Fears since the Cooey I and Cooey
II appeals in this consolidated case.
appear to acknowledge that “sure or very likely to
cause severe pain and needless suffering” is the
standard they must meet (Tibbetts's Motion, ECF No. 1261,
PageID 46111, n. 3; Campbell's Motion, ECF No. 1262,
PageID 46227-78). However, they continually use language to
describe their claims which is confusingly similar but does
not have the same meaning. For example, at the very beginning
of his Eighth Amendment argument, Tibbetts asserts
“[i]f subjected to Defendants' 2016 Execution
Protocol, Tibbetts is sure or very likely to face a risk of
serious harm - indeed, it is all but certain.” (ECF No.
1261, PageID 46104.) Campbell uses identical language at the
same place in his Motion (ECF No. 1262, PageID 46220).
“Serious risk of harm” is, of course, the
standard this Court used in the January 2017 decision which
the circuit court rejected as not strict enough.
PageID 46111, Tibbetts asserts he will suffer “mental
pain.” On the same page he asserts he must prove the
Execution Protocol is sure or likely “to cause serious
illness. . . .” At PageID 46113, he asserts that any
drug used before the paralytic and the potassium chloride
must render him “unconscious, unaware, and
insensate” and keep him that way until he is dead.
Without that effect from the first drug, the “death
caused by one or both of these drugs will be agonizingly
painful and torturous to Tibbetts, both physically and
psychologically.” Id. at PageID 46114. The
pain and suffering from the paralytic alone “is nothing
less than ‘inhuman and barbarous' torture.”
Id. at PageID 46115, quoting In re:
Kemmler, 136 U.S. 436, 447 (1890)(finding execution in
the electric chair was not cruel or unusual).
Motion (ECF No. 1262) parallels Tibbetts's, using the
same selection of words which are asserted to be synonymous
with “serious pain” and “needless
suffering, ” but are not. See, e.g., PageID
46220, PageID 46227.
different ways of expressing the standard are not
defines torture as “[t]he infliction of intense pain to
the body or mind to punish, to extract a confession or
information, or to obtain sadistic pleasure.”
Torture, Black's Law Dictionary (10th
ed. 2014). The definition implies the required mental state -
the torturer must be acting intentionally. Although the
Eighth Amendment does not mention torture, torture as here
defined, if inflicted by a State as punishment, is prohibited
by the Cruel and Unusual Punishment Clause. Hudson v.
McMillian, 503 U.S. 1, 4 (1992); Wilkins v.
Gaddy, 559 U.S. 34 (2010). A claim that an execution
protocol will inflict “torturous pain” would be
cognizable under the Eighth Amendment, but the Court heard no
evidence of any action by any Defendant to torture any death
row inmate, in the past or intended for the future. Dr.
Ashish Sinha gave it as his opinion that subjecting
an inmate to a procedure that causes air hunger is equivalent
to the torture technique called “waterboarding.”
However, while waterboarding is a form of torture within the
Black's Law dictionary definition, air hunger that is the
incidental consequence of an execution procedure is not. Use
of the word “torturous” to describe an execution
method adds nothing to the constitutional analysis, however
powerful the rhetoric.
pain or mental suffering is a likely result of being
sentenced to death and anticipating the execution, but that
experience of psychological suffering could not by itself
make a method of execution unconstitutional. Presumably all
death row inmates suffer that pain, but the death penalty is
not per se unconstitutional. In re Campbell, ___
F.3d ___, 2017 U.S. App. LEXIS 21094 *5, citing
Baze v. Rees, 553 U.S. 35, 47 (2008). Unless
accompanied by serious physical pain, the
mental suffering associated with being under a sentence of
death is not material to the Eighth Amendment inquiry under
Baze and Glossip. It is not clear to this
Court how a plaintiff could segregate anxiety from
anticipated execution in general from anxiety about execution
by a particular method. In any event, no evidence was offered
to support a claim that either Campbell or Tibbetts suffers
particular psychological pain associated with the Execution
Unaware, and Insensate
asked various witnesses whether midazolam would render an
inmate “unconscious, unaware, and insensate.”
Those adjectives, according to Plaintiffs' expert
witnesses Craig Stevens, Laura Depas, and Ashish Sinha,
describe the state of a person under General
Anesthesia, defined as that state of human
consciousness in which the subject is unconscious, unaware,
and insensate to pain (Stevens Opinion, PX 45, ECF No.
1323-15; Sinha Corrected Opinion, ECF No. 1295-1, PageID
47331). Plaintiffs repeat their assertion that an inmate must
be “insensate to pain” in their Written Closing
Arguments (ECF No. 1355, PageID 50422).
the Court is not aware of any precedent requiring that an
inmate be in the state of General Anesthesia before
injections of rocuronium bromide or potassium chloride, the
second and third drugs in the Execution Protocol. In fact,
the Supreme Court has recognized that some pain is incidental
to any lethal injection procedure, but a person who is
“insensate” would not experience any pain.
Baze v. Rees, 553 U.S. 35, 47-48 (2008); Glossip
v. Gross, 135 S.Ct. 2726, 2739-40 (2015); see also
Phillips v. Robinson, 2013 U.S. Dist. LEXIS 108820
(N.D. Ohio 2013).
is Serious Pain?
Medical Dictionary (28th edition, 1994) defines
pain as “a more or less localized sensation of
discomfort, distress, or agony, resulting from the
stimulation of specialized nerve endings.” It has no
definition of “serious” or “severe”
Sinha opined on “assessing pain objectively using
physiological markers.” (Corrected Expert Opinion, ECF
No. 1295-1, PageID 47342, et seq.) He notes that standards
for basic anesthetic monitoring require monitoring heart
rate, electrocardiogram, and blood pressure. Id.,
¶ 37, citing Miller's Anesthesia 1395
(8th ed. 2015). He then reports what various
outputs of these monitoring devices tell a trained observer
about whether a patient is experiencing pain, but he does not
suggest they tell what level of pain a person is suffering.
Sixth Circuit accepted in Fears this Court's
finding that injection of a fully conscious person with
rocuronium bromide and potassium chloride would cause severe
pain sufficient to meet the Eighth Amendment standard. 860
F.3d at 886. But it is clear that a person given even a
clinical dose of midazolam is not “fully
Sinha criticized the en banc court's discussion
of consciousness and clarified Dr. Bergese's January
testimony, noting that the concept of consciousness is indeed
a spectrum, but the concept of sensitivity to pain is not:
“I think it's sensation that's binary. I mean,
either the person's going to feel it or not feel
it” and “that's a separate consideration from
whether the person is conscious or unconscious” (Quoted
at Written Closing Arguments, ECF No. 1355, PageID 50427).
the Execution Protocol calls for what it denominates as
“consciousness checks, ” the checks actually used
by ODRC Medical Team members were a focus of the preliminary
injunction hearing for former Plaintiff Gary Otte in
September 2017. In denying injunctive relief, the Court wrote
that “[c]onsciousness' is not a term of art in
medicine or capital punishment law.” (ECF No. 1226,
PageID 45251). The Court relied on the caution about use of
the term in Miller's Anesthesia that consciousness is a
person's subjective experience, to be distinguished from
responsiveness: “An individual may fully experience a
stimulus (e.g., the command “Open your eyes!”)
but not be able to respond (as when a patient is paralyzed
but conscious during surgery).” (8th ed.
2015 at p. 283). The Court concluded
Neither the Supreme Court nor the Sixth Circuit has defined
the term in any way that relates it to the medical use of the
term in the expert testimony this Court has heard. And
neither court has adopted any particular degree of
unconsciousness as constitutionally required in a lethal
(ECF No. 1226, PageID 45251). That result was not changed by
any medical testimony the Court heard in the October 23-27
the Eighth Amendment test is “sure or very likely to
cause serious pain and needless suffering.” Proof of
other perhaps associated phenomena, e.g., psychological pain
or serious illness, is immaterial.
on the Likelihood of Severe Pain and Needless Suffering
the law of the case that the evidence presented to this
Court in January 2017 is insufficient to prove that there is
a strong likelihood or probability Plaintiffs will prevail at
a trial on the merits in showing that their executions
pursuant to the Execution Protocol will cause them to suffer
severe pain and needless suffering. There was disagreement by
Plaintiffs' experts with the medical science reflected in
that decision, but the Sixth Circuit's conclusions are
binding on this Court in the most conclusive way a precedent
can be binding; it is a published en banc circuit
court decision in the same case and on which the Supreme
Court denied review.
circuit court did not just conclude this Court applied the
wrong Eighth Amendment standard to the evidence before it.
Had it done that, it should have remanded for application of
the correct standard. Instead, it concluded the evidence was
insufficient to satisfy the correct standard, ...