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In re Ohio Execution Protocol Litigation

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

June 28, 2018

In re OHIO EXECUTION PROTOCOL LITIGATION, This relates to All Plaintiffs

          Edmund A. Sargus, Jr. Chief Judge.

          DECISION AND ORDER DENYING MOTION FOR STAY WITHOUT PREJUDICE

          Michael R. Merz United States Magistrate Judge.

         This capital § 1983 case is before the Court on Plaintiffs' Motion to Stay Pleading, Briefing, Consideration and Adjudication “of pending and forthcoming dispositive motions in this litigation” pending a decision of the United States Supreme Court in Bucklew v. Precythe, No. 17-8151. Certiorari was granted in that case on April 30, 2018, for the October 2018 term. The instant Motion was then filed May 31, 2018; and is now opposed by Defendants (Memo in Opp., ECF No. 1807). The Magistrate Judge heard oral argument during the status conference of June 26, 2018, making the matter ripe for decision.

         The Motion was filed on behalf of all Plaintiffs (ECF No. 1774, PageID 72258).

         The Motion is a nondispositive matter which the Magistrate Judge is authorized to decide in the first instance, subject to appeal to the District Court.

         Plaintiffs do not list what motions they consider to be covered by their Motion, but currently pending for consideration by Chief Judge Sargus are the Magistrate Judge's Report and Recommendations (ECF No. 1429) and Supplemental Report and Recommendations (ECF No. 1620) on Defendants' Motion to Dismiss the Fourth Amended Omnibus Complaint (ECF No. 1379). Both Plaintiffs and Defendants have objected (ECF Nos. 1767, 1795) and those Objections are, or soon will be, ripe for consideration. Also pending is the Magistrate Judge's Report and Recommendations to Dismiss the unserved Drug Source Defendants (ECF No. 1798) to which objections will be due on June 28, 2018. Finally, the Magistrate Judge has scheduled the filing of summary judgment motions in the case for sixty days after Chief Judge Sargus decides the Motion to Dismiss.

         The term “dispositive” ordinarily means an order dismissing a claim or terminating a party's participation in the case. See Fed.R.Civ.P. 54(b). “Dispositive” has a specialized meaning in describing motions on which a Magistrate Judge must render a report and recommendations, rather than a decision. These are the motions listed by name in 28 U.S.C. § 636(b)(1)(A) and other matters the Sixth Circuit has decided are functionally equivalent, e.g., a motion to remand a removed case. Plaintiffs made clear in oral argument that they are referring to the currently pending Reports and Recommendations on dismissal of the drug source Defendants and dismissal in part of the Fourth Amended Omnibus Complaint, and to the impending motions for summary judgment.

         As grounds for the stay, Plaintiffs say it will “avoid the possibility that this case may be adjudicated under what the Supreme Court may soon clarify to be the incorrect standards of proof.” (ECF No. 1774, PageID 72251.)

         The issues on which the Supreme Court granted certiorari in Bucklew are:

Should a court evaluating an as-applied challenge to a state's method of execution based on an inmate's rare and severe medical condition assume that medical personnel are competent to manage his condition and that the procedure will go as intended?
Must evidence comparing a state's proposed method of execution with an alternative proposed by an inmate be offered via a single witness, or should a court at summary judgment look to the record as a whole to determine whether a factfinder could conclude that the two methods significantly differ in the risks they pose to the inmate?
Does the Eighth Amendment require an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state's proposed method of execution based on his rare and severe medical condition?

Petition for a Writ of Certiorari, No. 17-8151, page i.

         In addition to these three questions, the Court directed the parties to brief ...


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