United States District Court, S.D. Ohio, Eastern Division, Columbus
A. Sargus, Jr. Chief Judge
ORDER ON MOTIONS TO INTERVENE
Michael R. Merz Magistrate Judge
consolidated capital case under 42 U.S.C. § 1983 is
before the Court on Motions to Intervene of Ohio death row
inmates Caron Montgomery (ECF No. 1416), Ashford Thompson
(ECF No. 1417), and Anthony Sowell (ECF No. 1423). A motion
to intervene is a non-dispositive pre-trial motion committed
to the decisional authority of an assigned Magistrate Judge
in the first instance.
Montgomery asserts he is a “true party in interest
because he is similarly situated [to] and asserts the same
causes of action as the Plaintiffs, ” referencing the
extant Fourth Amended Omnibus Complaint (ECF No. 1416, PageID
53148, attaching a copy of ECF No. 1252). He asserts he meets
the criteria for intervention enunciated in Jansen v.
Cincinnati, 904 F.2d 336 (6th Cir. 1990), to
wit, that the application is timely, that the applicant has a
significant legal interest in the subject matter of the
pending litigation, that disposition of that litigation in
the applicant's absence may impair or impede the
movant's ability to protect his interests, and that the
existing parties cannot adequately protect the movant's
interest. Id. at 340. Movants Thompson's and
Sowell's Motions closely parallel Montgomery's.
compliance with S. D. Ohio Civ. R. 7.3, counsel for
Montgomery and Thompson sought consent from Defendants'
counsel which was declined. Accordingly the Court ordered
Defendants to respond by February 9, 2018,  and said it would
presume consent by Plaintiffs if they did not object by the
same date (ECF No. 1418). Plaintiffs have made no objection.
withdrew their opposition but “request that the Court
issue an order directing the plaintiffs to explain the basis
for pursuing some claims as individual rather than in an
omnibus fashion.” (Response, ECF No. 1424, PageID
55147.) They note that the Fourth Amended Omnibus Complaint
reserves for separate pleading in individual supplemental
complaints “many claims . . . including the facial
Eighth Amendment challenge to the use of midazolam that has
been the focus of three evidentiary hearings presented to
this Court and two appeals to the Sixth Circuit.”
Id. at PageID 55148. Defendants conclude that
“[t]he portions of this case that are not
consolidated should be limited to those claims that are
dependent on the individual's characteristics, e.g.,
Plaintiff Campbell's allegations of difficulty obtaining
intravenous access.” Id. at PageID 55149.
Defendants' concern is that by allowing the Plaintiffs to
separate out the most litigated portions of the case, this
method of supplemental pleading allows Plaintiffs to
“repeatedly litigate the same claim based on the same
set of facts, ” thereby turning “a
method-of-execution challenge into a decades-long ad hoc
‘board of inquiry.'”
and Plaintiffs responded jointly (ECF No. 1426). They assert
that the Supreme Court's decision in Glossip v.
Gross, 135 S.Ct. 2726 (2015), which requires § 1983
challengers of methods of execution to plead an alternative
execution method requires an “intensely individualized
decision” by each Plaintiff. In addition,
individualized physical and mental health characteristics
give rise to “individualized claims, ” as
Defendants concede is appropriate. Finally, they note that
particular Plaintiffs may have individualized claims
regarding religious issues.
concerns are not appropriately addressed in deciding the
instant Motions. Clearly the Movants meet the criteria for
intervention enunciated in Jansen, supra. Just as
clearly, each of the Movants could file a separate §
1983 action in this Court which would then be appropriately
consolidated with this case. The question of which issues to
try separately for each Plaintiff or indeed to try only
tentatively on preliminary injunction is a separate issue on
which the Court is prepared to entertain proposals from the
parties and has already once addressed by insisting that the
2016 preliminary injunction motions of Plaintiffs Phillips,
Otte, and Tibbetts be heard together in January 2017. Case
management proposals are welcome, but the Court will not
attempt to prescribe them on Motions to Intervene. While not
proposing to be or become a board of inquiry, this Court is
charged by 28 U.S.C. §§ 1331 and 1391 to be the
court that decides constitutional challenges to Ohio's
method of execution.
Motions to Intervene are GRANTED. Counsel for Plaintiff
Sowell will take note of Mr. Bohnert's role as Liaison
Counsel for all Plaintiffs.
 The Court apologizes for the short
deadline which was occasioned by the fact that when the
Motions were filed, the parties were expecting the execution
of Raymond Tibbetts to proceed as ...