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In re Ohio Execution Protocol Litigation

United States District Court, S.D. Ohio, Eastern Division, Columbus

November 3, 2017

In re OHIO EXECUTION PROTOCOL LITIGATION This relates to Plaintiffs Alva Campbell and Raymond Tibbetts

          Edmund A. Sargus, Jr., Chief Judge

          DECISION AND ORDER

          Michael R. Merz, United States Magistrate Judge

         This 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).

         Jurisdictional Statement

         The 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).

         The relevant pleadings are Tibbetts's Fourth Amended Complaint (“Tibbetts 4AC”, ECF No. 691) and Campbell's Fourth Amended Complaint (“Campbell 4AC”, ECF No. 978).[1]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)

         The 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.

         Litigation History

         This case and its predecessors, [2] 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.

         On December 5, 2011, with the agreement of counsel, Judge Frost consolidated all lethal injection method-of-execution § 1983[3] cases in this District, ordering:

         Nature of agreement.

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. 2:11-cv-1016.

Cooey v. Kasich, Case No. 2:04-cv-1156, ECF No. 1067, PageID 31061-62.

         In the 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.[4] 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;[5]appeals have all been on the grant or denial of preliminary injunctive relief, except for the interlocutory protective order appeal mentioned below.

         There 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.

         Without 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.[6] The Court[7] 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.

         On 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).

         After 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.[8]

         General Standard for Preliminary Injunctive Relief and Stay of Execution

         In 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. 1991).

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).

         Supreme 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).

         The 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.

         Failure 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 executions.

         Nevertheless, 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).

         In 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.

         General Standard for 42 U.S.C. § 1983 Relief

         42 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 . . . .

         The 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 (1978).

         Named 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[9]. 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.)

         Actions 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).

         To 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)).

         Law of the Case Doctrine

         Because 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.

         Under 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).

         However, "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.

         The 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.).

         The 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).

         In a 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 proof-texts.[10]

         Part of 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.

         The law of the case is analyzed and applied separately below to the Eighth Amendment and Equal Protection claims litigated in this preliminary injunction proceeding.

         The Pending Motions for Injunctive Relief

         Plaintiff 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 time.

         Campbell 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.

         Because Plaintiffs argue their Eighth Amendment claims first, the Court will follow their order of presentation.

         EIGHTH AMENDMENT CRUEL AND UNUSUAL PUNISHMENT CLAIMS

         In 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 Execution Protocol.

(Tibbetts 4AC, ECF No. 691, PageID 20025; Campbell 4AC, ECF No. 978, PageID 36344-45).

         Tibbetts's 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 Drugs.
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.)

         The Eighth Amendment Standard

         First Branch: Serious Pain and Needless Suffering Requirement

         To 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.

         In Fears the Sixth Circuit criticized this Court's reliance on language from Baze as stating the standard:

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 492.

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.

         Plaintiffs 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.

         At 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).

         Campbell's 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.

         These different ways of expressing the standard are not linguistically equivalent.

         Torture

         Black's 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[11] 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.

         Psychological Pain

         Psychological 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 Protocol.

         Unconscious, Unaware, and Insensate

         Plaintiffs 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[12], 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).

         However, 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).

         What is Serious Pain?

         Dorland's 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” pain.

         Dr. 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.

         The 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 conscious.”

         Dr. 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).

         Because 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)[13]. 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 injection execution.

(ECF No. 1226, PageID 45251). That result was not changed by any medical testimony the Court heard in the October 23-27 hearing.

         In sum, 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.

         Evidence on the Likelihood of Severe Pain and Needless Suffering Requirement

         It is the law of the case[14] 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.[15]

         The 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, ...


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