United States District Court, S.D. Ohio, Eastern Division, Columbus
In re OHIO EXECUTION PROTOCOL LITIGATION, This Decision and Opinion relates to Plaintiffs Cleveland Jackson, James Hanna, and Melvin Bonnell
A. Sargus, Jr.Chief Judge.
DECISION ON PLAINTIFF CLEVELAND JACKSON'S MOTION
FOR RECONSIDERATION AND SUPPLEMENTAL MEMORANDUM ON OBJECTIONS
BY PLAINTIFFS HANNA AND BONNELL
MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE.
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).
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.
History of the Cleveland Jackson Case
Cleveland Jackson is scheduled to be executed by the State of
Ohio on November 13, 2019. 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.
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).
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,
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.
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).
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 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,
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).
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 ...