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In re Ohio Execution Protocol Litigation

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

August 29, 2019

In re OHIO EXECUTION PROTOCOL LITIGATION, This Decision and Opinion relates to Plaintiffs Cleveland Jackson, James Hanna, and Melvin Bonnell

          Edmund A. Sargus, Jr.Chief Judge.



         This case is before the Court on the Objections of Plaintiff Melvin Bonnell (ECF No. 2403) to, and Appeal of Plaintiff James Hanna (ECF No. 2405) from, the Scheduling Order of August 20, 2019 (ECF No. 2378) as well as the Motion for Reconsideration of that Order by Plaintiff Cleveland Jackson (ECF No. 2400).

         In contrast to the case of Cleveland Jackson, there is not unanimous consent to plenary Magistrate Judge jurisdiction in the Hanna and Bonnell cases. The Scheduling Order is therefore appealable to Chief Judge Sargus by those two Plaintiffs. The Objections and Appeal relate to a Magistrate Judge decision of a non-dispositive pretrial Matter - scheduling - and therefore have the same legal effect and are subject to the same standard of review: clearly erroneous for matters of fact and contrary to law for legal conclusions. Chief Judge Sargus has recommitted the Hanna and Bonnell matters for reconsideration by the Magistrate Judge in light of the Objections/Appeal (ECF No. 2409).

As a general principle, motions for reconsideration are looked upon with disfavor unless the moving party demonstrates: (1) a manifest error of law; (2) newly discovered evidence which was not available previously to the parties; or (3) intervening authority. Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3rd Cir. 1985), cert. denied, 476 U.S. 1171, 90 L.Ed.2d 982 (1986).

Meekison v. Ohio Dep't of Rehabilitation & Correction, 181 F.R.D. 571, 572 (S.D. Ohio 1998)(Marbley, J.). Given the mixed nature of this Supplemental Memorandum and in order to avoid if possible any appealable error, the Magistrate Judge will review the prior Scheduling Order de novo for any error of fact or law asserted by any of these Plaintiffs.

         Scheduling History of the Cleveland Jackson Case

         Plaintiff Cleveland Jackson is scheduled to be executed by the State of Ohio on November 13, 2019.[1] He is to be followed at roughly one-month intervals by Plaintiffs James Hanna on December 11, 2019; Kareem Jackson on January 16, 2020; and Melvin Bonnell on February 12, 2020.

         This Court denied preliminary injunctive relief to Plaintiff Warren Hennes on January 14, 2019 (ECF No. 2133), reported at In re Ohio Execution Protocol Litig. (Henness), 2019 U.S. Dist. LEXIS 8200, 2019 WL244488 (S.D. Ohio Jan. 14, 2019). As of two weeks later, Cleveland Jackson's execution was scheduled for May 29, 2019, and the Magistrate Judge sua sponte set a schedule with thirteen separate and detailed deadlines to prepare for a preliminary injunction hearing on April 11, 2019 (ECF No. 2154)(i.e., approximately sixty days to complete all steps through the hearing, then forty-five days for this Court to issue a decision, the Sixth Circuit to review that decision, and the Supreme Court to decide on certiorari).

         However, on February 19, 2019, Governor DeWine, having instructed the ODRC to prepare a new execution protocol in light of the Henness decision, announced that there would be no more executions in Ohio until a new protocol had been adopted, legally challenged, and then found to be constitutional by the courts (ECF No. 2165, citing Andrew J. Tobias, Gov. Mike DeWine freezes all Ohio executions while new method developed, Cleveland Plain-Dealer (Feb. 19, 2019).[2])

         On March 7, 2019, the Court conducted an in-person scheduling conference at which Defendants announced the reprieve of Cleveland Jackson's execution to November 13, 2019, but declined to accept the Court's suggestion that this consolidated case be stayed pending promulgation of the new protocol (ECF No. 2182). The parties were instructed to propose a new schedule for Cleveland Jackson. Id.

         As of May 7, 2019, there was no new protocol and the Defendants had suggested in the Henness appeal that the existing protocol might be used to execute Henness. The Magistrate Judge accordingly entered a new detailed Scheduling Order setting, as requested by Plaintiff Cleveland Jackson, a two-day preliminary injunction hearing for September 24-25, 2019, the schedule that has been followed since May (ECF No. 2206)(i.e. about 130 days for all steps).

         The parties' disclosures of lay and expert witnesses began on July 10, 2019 (ECF No. 2257). Because there was still no agreement for a stay pendente lite or reprieves for Hanna, Kareem Jackson, or Bonnell, the Court on August 16, 2019, directed those Plaintiffs to file proposed schedule for litigating their own motions for preliminary injunction[3] by 5:00 p.m. on August 19, 2019, in anticipation of the status conference set for the next day (ECF No. 2363). Both Hanna and Bonnell objected, [4] citing the differences in their physical and mental characteristics from Cleveland Jackson and the compressed time frame in which they would be required to prepare (ECF Nos. 2372, 2373).

         The Magistrate Judge overruled those objections, noting that neither Plaintiff had yet filed a motion for preliminary injunction, but that their currently scheduled execution dates had been set September 1, 2017 (ECF No. 2378). In the same Order the Court expanded the ...

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