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In re Ohio Execution Protocol Litigation

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

February 22, 2018

In re OHIO EXECUTION PROTOCOL LITIGATION, This Report relates to all Plaintiffs except Alva Campbell, Jr., Raymond Tibbetts, and Robert Van Hook

          Edmund A. Sargus, Jr. Chief Judge.

          REPORT AND RECOMMENDATIONS

          Michael R. Merz United States Magistrate Judge.

         This method-of-execution case, brought pursuant to 42 U.S.C. § 1983, is before the Court on Defendants' Motion to Dismiss Plaintiffs' Fourth Amended Omnibus Complaint (“Motion, ” ECF No. 1379). Plaintiffs oppose the Motion (“Memo in Opp., ” ECF No. 1406) and Defendants have filed a Reply in Support (“Reply, ” ECF No. 1408). The moving Defendants are Ohio Governor John Kasich; Gary C. Mohr, Director of the Ohio Department of Rehabilitation and Correction (ODRC); Ronald Erdos, Donald Morgan, Stephen Gray, Edwin Voorhies, Richard Theodore, Charlotte Jenkins, and John Coleman, employees of the ODRC; and un-named and anonymous “execution team members (the “Moving” or “State” Defendants).

         Dismissal is sought (1) under Fed.R.Civ.P. 12(b)(1) for lack of jurisdiction of the subject matter or based on sovereign immunity under the Eleventh Amendment, or (2) under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted or on the basis of the affirmative defense of qualified immunity (Motion, ECF No. 1379, PageID 51913). Because qualified immunity applies only to claims against state actor Defendants in their individual capacities and no such claims are at issue in the instant Motion, there is no discussion of qualified immunity in what follows.

         Motions to dismiss involuntarily are dispositive pre-trial motions on which an assigned Magistrate Judge must render a report and recommendations for disposition. Plaintiffs Raymond Tibbetts and Robert Van Hook are excluded from this Report because they, and the State Defendants with respect to them, have unanimously consented to plenary magistrate jurisdiction under 28 U.S.C. § 636(c)(ECF Nos. 732, 951, respectively) and Chief Judge Sargus has referred their cases on that basis (ECF Nos. 734, ). The Magistrate Judge will decide separately the Motion as it relates to them. Plaintiff Alva Campbell, Jr., is excluded from this Report because he has filed a superseding Fifth Amended Complaint (ECF No. 1407) which is subject to a separate motion to dismiss (ECF No. 1409) and he has also consented to plenary Magistrate Judge jurisdiction (ECF No. 938).

         Ordinarily, a motion under Fed.R.Civ.P. 12 must be made before an answer is filed. Nevertheless, a new motion to dismiss is proper in response to a new amended complaint. Plaintiffs do not question the appropriateness of Defendant's filing a motion to dismiss at this stage of the case.

         Generally Applicable

         Law Subject Matter Jurisdiction (Fed. R. Civ. P. 12(b)(1))

         Fed. R. Civ. P. 12(b)(1) authorizes motions to dismiss for lack of subject matter jurisdiction. Because federal courts are courts of limited jurisdiction, the burden of persuasion on a Rule 12(b)(1) motion is on the party asserting jurisdiction. Thomson v. Gaskill, 315 U.S. 442 (1942); Moir v. Greater Cleveland Regional Transit Authority, 895 F.2d 266 (6th Cir. 1990); 5A Wright and Miller, Federal Practice and Procedure, Civil 2d §1350 (1990).

         Plaintiffs assert Defendants are raising a “facial” as opposed to a “factual” subject matter jurisdiction claim (Memo in Opp., ECF No. 1406, PageID 52316). Defendants do not disagree in their Reply and the Magistrate Judge agrees with Plaintiffs on this point.[1]

         The Supreme Court has held that district courts lack subject matter jurisdiction of claims that are “so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as to not involve a federal controversy.” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998), quoting Oneida Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661, 666 (1974). At the same place in Steel Co., however, the Court noted that “the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction, i.e., the courts' statutory or constitutional power to adjudicate the case.” Id. citing Wright and Miller, supra. Given that the Fourth Amended Complaint purports to plead claims for violation of federal constitutional rights and arising under 42 U.S.C. § 1983, this Court concludes it has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343.

         Jurisdiction under either of those statutes can be defeated by the bar of the Eleventh Amendment to the United States Constitution which provides:

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State or by Citizens or Subjects of any Foreign State.

         The Amendment has been construed to bar suits against a State by its own citizens. Papasan v. Allain, 478 U.S. 265, 276 (1986); Hans v. Louisiana, 134 U.S. 1 (1890); Edelman v. Jordan, 415 U.S. 651 (1974); Florida Dep't. of State v. Treasure Salvors, Inc., 458 U.S. 670 (1982).

         The Eleventh Amendment does not bar an action for injunctive relief against a state officer for violations of the United States Constitution. 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). However, the Amendment does bar an action to enjoin state officials from violating state law. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984); Ernst v. Rising, 427 F.3d 351 (6th Cir. 2005)(en banc); Turker v. Ohio Dep't of Rehab. & Corr., 157 F.3d 453 (6th Cir. 1998); In re: Ohio Execution Protocol Litig. (Otte), 2017 U.S. App. LEXIS 17436 (6th Cir. Sept. 7, 2017), affirming In re: Ohio Execution Protocol Litig. (Tibbetts & Otte), 2017 U.S. Dist. LEXIS 107468 (S.D. Ohio July 12, 2017)(Merz, M.J.).

         Sovereign immunity bars a plaintiff from using state law to enjoin state officials from carrying out their official responsibilities even when the officials are sued in their individual capacities. In re: Ohio Execution Protocol Litig. (Otte), 2017 U.S. App. LEXIS 17436 (6th Cir. Sept. 7, 2017), citing Williams v. Kentucky, 24 F.3d 1526, 1531, 1543 (6th Cir. 1994).

         The Eleventh Amendment is a jurisdictional bar which federal courts are required to raise sua sponte if the parties fail to do so. Fairport Int'l Exploration, Inc., v. Shipwrecked Vessel Known as the Captain Lawrence, 105 F.3d 1078, 1082 (6th Cir. 1997); Wilson-Jones v. Caviness, 99 F.3d 203 (6th Cir. 1996).

         Claims Upon Which Relief May Be Granted (Fed. R. Civ. P. 12(b)(6))

         “The purpose of a motion under Rule 12(b)(6) is to test the formal sufficiency of the statement of the claim for relief; it is not a procedure for resolving a contest about the facts or merits of the case.” Wright & Miller, Federal Practice and Procedure: Civil 2d §1356 at 294 (1990); see also Gex v. Toys “R” Us, 2007 U.S. Dist. LEXIS 73495, *3-5 (S.D. Ohio, Oct. 2, 2007); Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993), citing Nishiyama v. Dickson County, Tennessee, 814 F.2d 277, 279 (6th Cir. 1987). Stated differently, a motion to dismiss under Fed.R.Civ.P. 12(b)(6) is designed to test only the sufficiency of the complaint. Riverview Health Institute LLC v. Medical Mutual of Ohio, 601 F.3d 505, 512 (6th Cir. 2010).

         The test for dismissal under Fed.R.Civ.P. 12(b)(6) was significantly restated by the Supreme Court in 2007:

Factual allegations must be enough to raise a right to relief above the speculative level, see 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed.2004)(“[T]he pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action”), on the assumption that all the allegations in the complaint are true (even if doubtful in fact), see, e.g., Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508, n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989)(“Rule 12(b)(6) does not countenance ... dismissals based on a judge's disbelief of a complaint's factual allegations”); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (a well-pleaded complaint may proceed even if it appears “that a recovery is very remote and unlikely”).

Bell Atl. Corp. v. Twombly, 550 U.S.544, 555 (2007).

[W]hen the allegations in a complaint, however true, could not raise a claim of entitlement to relief, “‘this basic deficiency should ... be exposed at the point of minimum expenditure of time and money by the parties and the court.'” 5 Wright & Miller § 1216, at 233-234 (quoting Daves v. Hawaiian Dredging Co., 114 F.Supp. 643, 645 (D. Hawaii 1953)); see also Dura [Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005)], at 346, 125 S.Ct. 1627, 161 L.Ed.2d 577; Asahi Glass Co. v. Pentech Pharmaceuticals, Inc ., 289 F.Supp.2d 986, 995 (N.D.Ill.2003) (Posner, J., sitting by designation) (“[S]ome threshold of plausibility must be crossed at the outset before a patent antitrust case should be permitted to go into its inevitably costly and protracted discovery phase”).

Twombly, 550 U.S. at 558 (overruling Conley v. Gibson, 355 U.S. 41, 45-46 (1957), and specifically disapproving of the proposition from Conley that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its fact, '” Doe v. Miami University, __F.3d__, 2018 U.S. App. LEXIS 3075, *12-13 (6th Cir. Feb. 9, 2018), quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), in turn quoting Twombly, 550 U.S. at 570.

         The Impact of Precedent

         Defendants' Motion relies heavily on precedent of various types (See, e.g., Motion, ECF No. 1379, Table of Contents, PageID 51915-17). In response, Plaintiffs make the strong and broad claim “[h]owever defined and applied by the Court and Defendants, the doctrine of stare decisis provides no basis to dismiss any of Plaintiff's [sic] claims.” (Memo in Opp., ECF No. 1406, PageID 52310.) In support of this broad claim, Plaintiffs recite various maxims from the law of precedent which must each be evaluated.

         First of all, Plaintiffs assert one District Judge's decision is not binding on any other District Judge, even in the same district. The Magistrate Judge agrees. See Chinn v. Jenkins, 2018 U.S. Dist. LEXIS 8548 (S.D. Ohio Jan. 19, 2018), citing, inter alia, Threadgill v. Armstrong World Industries, Inc., 928 F.2d 1366, 1371 (3rd Cir. 1991); Colby v. J.C. Penney Co., Inc., 811 F.2d 1119, 1124 (7th Cir. 1987); United States v. Articles of Drug Consisting of 203 Paper Bags, 818 F.2d 569, 572 (7th Cir. 1987); Starbuck v. City and County of San Francisco, 556 F.2d 450, 457 n.13 (9th Cir. 1977 (same). An exception would be where a judgment bars relitigation of a claim or issue under the doctrines of res judicata or collateral estoppel.

         Second, Plaintiffs assert that the district courts in this circuit are bound by the published decisions of the Sixth Circuit Court of Appeals. The Magistrate Judge also agrees with this proposition of law. A prior decision of the Sixth Circuit remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or the Sixth Circuit en banc overrules the prior decision. United States v. Elbe, 774 F.3d 885, 891 (6th Cir. 2014); Darrah v. City of Oak Park, 255 F.3d 301, 309 (6th Cir. 2001); Salmi v. Secretary of HHS, 774 F.2d 685, 689 (6th Cir. 1985); accord 6th Cir. R. 206(c). A panel of the Sixth Circuit may not overrule the published decision of another panel. Hinchman v. Moore, 312 F.3d 198, 203 (6th Cir. 2002); Neuman v. Rivers, 125 F.3d 315 (6th Cir. 1997).

         However, what is binding in a prior published circuit court decision is the holding of the case, and not dicta included in the opinion. A panel of the Sixth Circuit is not bound by dicta in a previously published panel opinion. Re/Max Int'l, Inc. v. Realty One, Inc., 271 F.3d 633, 643 (6th Cir. 2001); United States v. Burroughs, 5 F.3d 192, 194 (6th Cir. 1993). “Dicta is the ‘[o]pinion[] of a judge which do[es] not embody the resolution or determination of the specific case before the court.'” Hinchman v. Moore, 312 F.3d 198 (6th Cir. 2002)(quoting Black's Law Dictionary 454 (6th ed.1990).

[I]t is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the Court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.

Cohens v. Virginia, 19 U.S. 264, 399-400 (1821)(Marshall, C. J.). See also United States v. Rubin, 609 F.2d 51, 69 n.2 (2nd Cir. 1979) (Friendly, J., concurring).

         The doctrine of precedent or stare decisis, however, is much broader than the question of which prior decisions by which courts are binding on subsequent courts. Part of the doctrine of precedent is the law of the case. Under that doctrine, findings made at one point in the 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 (1stCir. 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). “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)(Sutton, J.), quoting Bryan A. Garner, et al., The Law of Judicial Precedent 441 (2016).

         Law of the case is persuasive, not binding. "Law of the case directs a court's discretion, it does not limit the tribunal's power." Id., citing Southern R. Co. v. Clift, 260 U.S. 316, 319 (1922); Messenger v. Anderson, 225 U.S. 436 (1912); see also Gillig v. Advanced Cardiovascular Sys., Inc., 67 F.3d 586, 589-90 (6th Cir. 1995). "While the 'law of the case' doctrine is not an inexorable command, a decision of a legal issue establishes the 'law of the case' and must be followed in all subsequent proceedings in the same case in the trial court or on a later appeal in the appellate court, unless the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision of the law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice." White v. Murtha, 377 F.2d 428 (5th Cir. 1967), quoted approvingly in Association of Frigidaire Model Makers v. General Motors Corp., 51 F.3d 271 (6th Cir. 1995). The purpose of the doctrine is twofold: (1) to prevent the continued litigation of settled issues; and (2) to assure compliance by inferior courts with the decisions of superior courts. United States v. Todd, 920 F.2d 399 (6th Cir. 1990), citing Moore's Federal Practice.

The doctrine of law of the case provides that the courts should not "reconsider a matter once resolved in a continuing proceeding." 18B Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and Procedure: Jurisdiction and Related Matters § 4478 (4th ed. 2015). "The purpose of the law-of-the-case doctrine is to ensure that 'the same issue presented a second time in the same case in the same court should lead to the same result.'" Sherley v. Sebelius, 689 F.3d 776, 780, 402 U.S.App.D.C. 178 (D.C. Cir. 2012) (quoting LaShawn A. v. Barry, 87 F.3d 1389, 1393, 318 U.S.App.D.C. 380 (D.C. Cir. 1996)). For a prior decision to control, the prior tribunal must have actually decided the issue. Wright et al., supra, § 4478. "A position that has been assumed without decision for purposes of resolving another issue is not the law of the case." Id. "An alternate holding, however, does establish the law of the case." Id. Unlike claim preclusion, the law of the case does not apply to issues that a party could have raised, but did not. Id. The law-of-the-case doctrine is a prudential practice; a court may revisit earlier issues, but should decline to do so to encourage efficient litigation and deter "indefatigable diehards." Id.

Howe v. City of Akron, 801 F.3d 718, 739-740 (6th Cir. 2015).

         The law of the case doctrine is not an appropriate basis for denying relief when the statement of the law in an appellate opinion is both dictum and in error. Landrum v. Anderson, 813 F.3d 330 n.1 (6th Cir. 2016), citing United States v. McMurray, 653 F.3d 367 (6th Cir. 2011).

         In sum, only the holdings of published Sixth Circuit decisions or the unpublished mandates of that Court in this case are binding on this Court. However, judges have an ethical duty to decide like cases alike which is strong rights-based support for stare decisis and a compelling judicial economy rationale for not re-deciding every issue de novo.

         Analysis

         First Cause of Action: Eighth and Fourteenth Amendment Violations

         With regard to this claim for relief, the Fourth Amended Complaint reads:

1269. The First Cause of Action was previously moved from the Third Amended Omnibus Complaint to be, as applicable, re-alleged in parts or in whole in the various Plaintiffs' Amended Individual Supplemental Complaints. Claims alleging violations of the Eighth Amendment as incorporated against the states by the Fourteenth Amendment will be alleged in the Plaintiffs' Amended Individual Supplemental Complaints to be filed in this case in accordance with the court's scheduling order.

(ECF No. 1252, PageID 45721-22.) This Report accordingly does not address the First Cause of Action.

         Second Cause of Action: Fourteenth Amendment Due Process Violations

         In their Second Cause of Action, Plaintiffs assert they have state-created life, liberty, and property interests protected from deprivation without due process by the Due Process Clause of the Fourteenth Amendment (Fourth Amended Complaint, ECF No. 1252, PageID 45722-28, ¶¶ 1270-94). Specifically, Plaintiffs assert that Ohio Revised Code § 2949.22(A) creates their right to a quick and painless execution and ODRC Policy 01-COM-11 (the “Execution Protocol”) creates their right to a humane and dignified execution, id., see also Memo in Opp. ECF No. 1406, PageID 52334.

         Defendants assert the Second Cause should be dismissed on the basis of precedent. (Motion, ECF No. 1379, PageID 51932, citing In re Ohio Execution Protocol Litig. (Wiles), 868 F.Supp.2d 625 (S.D. Ohio 2012)(Frost, D.J.); In re: Ohio Execution Protocol Litig. (Tibbetts & Otte), 2017 U.S.Dist. LEXIS 107468 (S.D. Ohio, July 12, 2017)(Merz, M.J.); In re: Ohio Execution Protocol Litig. (Campbell), 2017 WL 3479589 (Aug. 14, 2017)(Merz, M.J.); and Cooey v. Strickland (Henderson), 2010 U.S. Dist. LEXIS 81841 (S.D. Ohio Aug. 12, 2010)(Frost D.J.).

         In his Henderson decision, Judge Frost relied in part on Cooey (Biros) v. Strickland, 589 F.3d 210, 234 (6th Cir. 2009). Plaintiffs acknowledge that that case rejected a claim by death row inmate Biros that Ohio Revised Code § 2949.22(A) created a right to a quick and painless execution, but argue that “Cooey (Biros) and its progeny were wrongly decided. . .” (Memo in Opp., ECF No. 1406, PageID 52335). The Sixth Circuit considered this claim on appeal from a decision of Judge Frost denying Biros a stay of execution. As to this particular claim, Judge Gibbons wrote:

Biros also claims that the planned execution will violate his right to a "quick and painless death." R. 610 at 9. He cites Ohio Revised Code § 2949.22(A), the statute that provides for a death caused by "a lethal injection of a drug . . . of sufficient dosage to quickly and painlessly cause death." But § 2949.22 creates no cause of action to enforce any right to a quick and painless death. See State v. Rivera, 2009 Ohio 1428, 2009 WL 806819, at *7 (Ohio Ct. App. 2009) ("There is no 'action' for a quick and painless death" under Ohio Reg. Code Ann. § 2949.22(A).). We are not persuaded by Biros's assertion that § 2949.22 creates a federal right because the statute creates "liberty and property interests in a 'quick and painless execution'" protected by the substantive component of the Due Process Clause of the Fourteenth Amendment. R. 610 at 9. Biros is unlikely to show that the reach of any such right extends beyond the incorporation of the Eighth Amendment. Cf. Furman v. Georgia, 408 U.S. 238, 359 n.141, 92 S.Ct. 2726, 33 L.Ed.2d 346 (Marshall, J., concurring).

589 F.3d at 234.

         Plaintiffs correctly argue that States can create liberty and property interests which are then protected from deprivation without due process by the Fourteenth Amendment, as enforceable through 42 U.S.C. § 1983 (Memo in Opp. ECF No. 1406, PageID 52336, citing Board of Regents v. Roth, 408 U.S. 564 (1972). Plaintiffs also correctly read Cooey (Biros) as concluding that Ohio Revised Code § 2949.22(A) does not create the right Biros asserted because Ohio law does not create a private cause of action for enforcing that right. Id. at PageID 52337.

         Plaintiffs argue the Cooey (Biros) court wrongly conflated creation of rights with creation of private causes of action to enforce rights. Id., relying on Neal v. Dist. Of Columbia, 131 F.3d 172, 174-75 (D.C. Cir. 1997). Plaintiffs also argue that the mandatory duty-creating language of Ohio Revised Code § 2949.22(A) must create a correlative right, relying on the dissenting opinion of Ohio Chief Justice Brown in Scott v. Houk, 127 Ohio St.3d 317, 325 n.1(2010), who in turn relied on Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L. J. 16, 33 (1913). Whatever the precise reasoning behind Biros, it is clear that the holding is that Ohio Revised Code § 2949.22(A) does not create a right in inmates who are to be executed. And whatever the attractiveness of Professor Hohfeld's analysis, Chief Justice Brown wrote in dissent.

         The Cooey (Biros) court did not expressly consider whether the Execution Protocol created enforceable rights, and Plaintiffs argue separately that it does, largely reprising the argument as to the statute (Memo in Opp., ECF No. 1406, PageID 52430-45). Plaintiffs particularly critique the manner in which this Court analyzed their assertion that the Execution Protocol creates property rights. Id. at PageID 42432, criticizing the analysis in In re Ohio Execution Protocol Litig. (Tibbetts & Otte), 1027 U.S. Dist. LEXIS 107468 (S.D. Ohio July 12, 2017), where the Court wrote:

Aside from the Cooey (Biros) precedent, Plaintiffs' argument is unpersuasive. First of all, the notion of having a property interest in a humane and dignified execution is completely foreign to § 1983 jurisprudence. One can have a property interest in certain government benefits which is protected by procedural due process, but it is difficult to conceptualize an execution as something in which one could have a property interest.
A liberty or life interest is easier to conceptualize under these circumstances. The logic appears to be that, since the Execution Protocol creates a duty, there must be a correlative right. Plaintiffs' cite Chief Justice Brown's reliance in his dissent in Scott v. Houk, 127 Ohio St.3d 317, 2010 Ohio 5805, 939 N.E.2d 835 (2010), on Wesley Newcomb Hohfeld's Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L. J. 16 (1913). Influential as Hohfeld's work has been in general jurisprudence and particularly the right-duty correlation, it has never been constitutionalized. That is, so far as the undersigned is aware, neither the Sixth Circuit nor the Supreme Court has used the right-duty correlation to infer generally the existence of a state-created right protected under § 1983 from the existence of a state-created duty. Indeed, the logic of recent Supreme Court decisions cuts in the opposite direction. See Town of Castle Rock v. Gonzales, 545 U.S. 748, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005).

Id. at *36-37.

         Plaintiffs respond that they have

substantive property rights in the performance of non-discretionary duties that provide to Plaintiff[s] those tangible benefits. Notably, these are not property interests in an execution itself, contrary to this Court's previous observation [in Tibbetts & Otte]. Rather, these are property rights in expectations and receiving certain government benefits in the type of execution that Plaintiff will receive. And for the same reasons, the same also applies to liberty or life interests created by the same state laws.

(Memo in Opp., ECF No. 1406, PageID 52342.)

         In Tibbetts & Otte, this Court characterized the claimed right as one to a “humane and dignified execution” and questioned how that could be a property right, but Plaintiffs attempt to cover that conceptual gap by throwing in “life and liberty” interests as well. Id. They also assert that Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005), is not to the contrary.

         The Magistrate Judge believes Plaintiffs read Castle Rock too narrowly. There the plaintiff claimed a property interest in having the police arrest her estranged husband who had taken her children in violation of a protection order. Because police typically have discretion in whether or not to make an arrest, even with proof of probable cause, the Court held plaintiff's interest in the arrest did not rise to the level of an entitlement because Colorado law did not make enforcement mandatory. The Court also questioned how the plaintiff's interest in question could be a property interest since it had no ascertainable monetary value.

         The same logic applies here. A “humane and dignified” execution, although undoubtedly valuable, has no ascertainable monetary value. More importantly, the mandatory language in the Execution Protocol on which Plaintiffs rely does not mandate that an inmate be given a humane and dignified execution. Rather, it provides “[a]ll execution processes shall be performed in a professional, humane, sensitive, and dignified manner.” (Execution Protocol, ECF No. 711-1, §V, PageID 21453). That language does not create a life, liberty, or property interest under Ohio law that is protectable under 42 U.S.C. § 1983.

         The undersigned dismissed Plaintiff Alva Campbell's parallel claims under Ohio Revised Code § 2949.22(A) and the Execution Protocol “on the authority of Cooey (Biros) and stare decisis, ” noting that he had previously dismissed parallel claims of Plaintiffs Raymond Tibbetts and Gary Otte. Campbell, supra, at *5. Having reconsidered the claims in the Second Cause of Action in light of Plaintiffs' argument, the Magistrate Judge recommends they be dismissed with prejudice on the authority of Cooey (Biros) and the rationale offered in Campbell and Tibbetts & Otte. The argument made by Plaintiffs does not persuade the Magistrate Judge that those decisions were in error.

         Third Cause of Action: Violations of Rights of Access

         In their Third Cause of Action, Plaintiffs complain of limitations on their ability to consult with counsel and counsel's ability to communicate with the courts or other relevant authorities, particularly the Governor, during the course of an execution (Fourth Amended Complaint, ECF No. 1252, PageID 45728-35, ¶¶ 1295-1328).

         Defendants argue for dismissal on the basis of Judge Frost's prior decision in this case, Cooey v. Strickland, 2011 U.S. Dist. LEXIS 8336 (S.D. Ohio Jan. 28, 2011). Examination of that decision on a portion of Defendants' motion for summary judgment shows Judge Frost did not find that Plaintiffs had not stated a constitutional claim, but that

the unwritten custom and practices surrounding the protocol again salvage a portion of Ohio's execution process. The practice of providing counsel with access to a telephone through which counsel can contact a court or the governor proves dispositive of this last aspect of Plaintiffs' counsel/access claims. There is no basis on this record to conclude that the existing access is insufficient or that greater access . . . is constitutionally compelled.

Id. at *39. The record now is different from the record before Judge Frost in January 2011. During the preliminary injunction hearing in October 2017 the Court heard evidence about difficulties of access during the Otte execution. ODRC made some changes in advance of the interrupted execution of Alva Campbell which have not yet been the subject of testimony. On the basis of the current record, the Magistrate Judge cannot say that the Third Cause of Action fails to state a claim upon which relief can be granted. The Motion should be denied as to the Third Cause of Action.

         Fourth Cause of Action: Equal Protection Violations

         In their Fourth Cause of Action, Plaintiffs allege that they have been or will be treated differently from other similarly situated individuals in violation of the Equal Protection Clause of the Fourteenth Amendment (Fourth Amended Complaint, ECF No. 1252, PageID 45735-78, ¶¶ 1329-1495). This Cause of Action comprises eighteen sub-claims:

A. Violations of Equal Protection by Burdening Fundamental Rights
1. Equal Protection violation based on burdening of Plaintiff's fundamental rights by Defendants' deviations from the Execution Protocol.
2. Equal Protection violation based on burdening of Plaintiff's fundamental rights by Defendants' deviations from Ohio's execution statute.
3. Equal Protection violation based on burdening of Plaintiff's fundamental rights by Defendants' deviations from Ohio's Constitution.
4. Equal Protection violation based on burdening of Plaintiff's fundamental rights by Defendants' failing to follow federal and Ohio state laws related to imported drugs, unapproved drugs, misbranded drugs, adulterated drugs, controlled substances, and compounded drugs, including compounding sterile injectable controlled substances to be used as execution drugs.
5. Equal Protection violation based on burdening of Plaintiff's fundamental rights by Defendants' deviations from Ohio's definition-of-death law.
6. Equal Protection violation based on burdening of Plaintiff's fundamental rights by Defendants' deviations from federal and Ohio state laws prohibiting non-consenting human experimentation.
7. Equal Protection violation based on burdening of Plaintiff's fundamental rights by Defendants' use of an Execution Protocol and policies by which Defendants deny necessary medical and resuscitative care and permit a lingering death.
8. Equal Protection violation based on burdening Plaintiff's fundamental rights by Defendants' use of midazolam and the unavoidable variation inherent in midazolam's efficacy on individual people.
9. Equal Protection violation based on burdening Plaintiff's fundamental rights by Defendants' use of compounded execution drugs and the unavoidable variation inherent in compounded drugs.
10. Equal Protection violation based on burdening Plaintiff's fundamental rights by Defendants' intentional removal of the drug concentrations from the Execution Protocol which creates a great likelihood that Defendants will inject Plaintiff with lesser or greater than the required amount of execution drugs.
B. Equal Protection-“Class of One” Disparate Treatment
1. Equal Protection violation based on Defendants' unequal application of the Execution Protocol to Plaintiff as a class of one.
2. Equal Protection violation based on Defendants' unequal application of Ohio's execution statute to Plaintiff as a class of one.
3. Equal Protection violation based on Defendants' unequal application to Plaintiff, as a class of one, of federal and Ohio state laws related to imported drugs, unapproved drugs, misbranded drugs, adulterated drugs, controlled substances, or compounded drugs, including compounding sterile injectable controlled substances to be used as execution drugs.
4. Equal Protection violation based on Defendants' unequal application of Ohio's definition-of-death law to Plaintiff as a class of one.
5. Equal Protection violation based on Defendants' unequal application of federal and Ohio state laws prohibiting non-consenting human experimentation to Plaintiff as a class of one.
6. Equal Protection violation based on Defendants' disparate denial of necessary medical care and permitting a lingering death.
7. Equal Protection violation based on Defendants' use of midazolam and the unavoidable variation inherent in midazolam's efficacy on individuals, which treats Plaintiff unequally as a class of one.
8. Equal Protection violation based on Defendants' removal of any required concentration of the execution drugs which treats Plaintiff unequally as a class of one.

(ECF No. 1252, passim.)

         The parties have extensively briefed this portion of the Motion (Motion, ECF No. 1379, PageID 51934-49; Memo in Opp., ECF No. 1406, PageID 52350-97; Reply, ECF No. 53036-37). Having considered that briefing, the Magistrate Judge believes the following analysis correctly states the law applicable to this Cause of Action.

         The Equal Protection Standard

         The Equal Protection Clause of the Fourteenth Amendment commands that no State shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. Amend. XIV, § 1. The Supreme Court has stated that this language "embodies the general rule that States must treat like cases alike but may treat unlike cases accordingly." Vacco v. Quill, 521 U.S. 793, 799 (1997). The States cannot make distinctions which either burden a fundamental right, target a suspect class, or intentionally treat one person differently from others similarly situated without any rational basis for the difference. Id.; Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam); Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir. 2005). When the disparate treatment burdens a fundamental right, strict scrutiny applies. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973); Bible Believers v. Wayne County, 805 F.3d 228, 256 (6th Cir. 2015)(en banc); Miller v. City of Cincinnati, 622 F.3d 524, 538 (6th Cir. 2010).

         Burden on Fundamental Rights

         Plaintiffs' first ten Equal Protection sub-claims at issue here assert that the State Defendants impose a burden on their fundamental rights when they deviate from the Execution Protocol (Sub-claim A.1), deviate from Ohio's execution statute (Sub-claim A.2), deviate from the Ohio Constitution (Sub-claim A.3), fail to follow federal and Ohio laws related to drugs (Sub-claim A.4), deviate from Ohio's definition of death law (Sub-claim A.5), deviate from federal and Ohio laws prohibiting experimentation on non-consenting humans (Sub-claim A.6), deny necessary medical and resuscitative care to inmates being executed (Sub-claim A.7); use midazolam (Sub-claim A.8), use compounded execution drugs (Sub-claim A.9), and removed required drug concentrations from the Execution Protocol (Sub-claim A.10).

         The fundamental rights protected from state-imposed burdening by the Equal Protection Clause are those rights from the Bill of Rights incorporated into the Fourteenth Amendment Due Process Clause as “inherent in the concept of liberty.” Rotunda & Nowak, Treatise on Constitutional Law (4th ed.) § 18.39. Although not all of the Bill of Rights has been thus incorporated, the Eighth Amendment protection against cruel and unusual punishment has. McDonald v. Chicago, 561 U.S. 742 (2010), citing Robinson v. California, 370 U.S. 660 (1962). Thus the right to be free from cruel and unusual punishment is a fundamental right protected from state-imposed burdens that treat similarly situated persons differently without proper justification.

         A requisite for an Equal Protection claim is that a plaintiff show that he or she has been treated disparately from someone who is similarly situated. Richland Bookmart, Inc., v. Nichols, 278 F.3d 570, 574 (6th Cir. 2002). Defendants assert that Plaintiffs cannot show that they are similarly situated with all other Ohio capital inmates because they will be alleging, in individual supplemental complaints, that they have specific physical and mental characteristics that differ from other death row inmates (Motion, ECF No. 1379, PageID 51938). This is said to be fatal to the Equal Protection claims because “Plaintiffs cannot have it both ways.” Id. at PageID 51939.

         The Magistrate Judge disagrees. All Plaintiffs are subject to a sentence of death imposed by an Ohio court and all are subject to being executed under the Execution Protocol. While this Court has not found any Equal Protection violations since 2012, it is at least imaginable that one might be threatened, e.g., this particular inmate gets ...


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