United States District Court, S.D. Ohio, Eastern Division, Columbus
In re: OHIO EXECUTION PROTOCOL LITIGATION, This Report relates to Warren Henness
A. Sargus, Jr. District Judge
ORDER DENYING MOTION WITHOUT PREJUDICE
Michael R. Merz United States Magistrate Judge
consolidated capital § 1983 case is before the Court on
Plaintiff Warren Keith Henness's renewed Motion for Stay
and Preliminary Injunction (ECF No. 2636). Henness is
scheduled to be executed on May 14, 2020. In accordance
with this Court's Order (ECF No. 2636), Henness and
Plaintiff Melvin Bonnell filed the pending Motion for Stay and
Preliminary Injunction on December 2, 2019 (ECF No. 2669).
Although a motion for preliminary injunction is
“dispositive” within the meaning of 28 U.S.C.
§ 636(b). Henness and the Defendants have unanimously
consented to plenary Magistrate Judge jurisdiction under 28
U.S.C. § 636(c) and Henness's case has been referred
to the Magistrate Judge on that basis (ECF No. 1912).
appealed this Court's denial of his previous Motion for
Preliminary Injunction (Order, ECF No. 2133, citing Motion,
ECF No. 1929), and while the United States Court of Appeals
for the Sixth Circuit affirmed this Court's denial of
that Motion, In re: Ohio Execution Protocol Litig.
(Henness), __ F.3d__, 2019 WL 6873693 (Dec. 17, 2019),
Henness intends to petition for rehearing and rehearing
en banc of that latter decision (6th Cir.
Case No. 19-3064, ECF No. 60). In any event, the Sixth
Circuit has not issued a mandate.
of the mandate formally marks the end of appellate
jurisdiction. Jurisdiction returns to the tribunal to which
the mandate is directed, for such proceedings as may be
appropriate[.]” Johnson v. Bechtel Assoc.
Prof'l Corp., D.C., 801 F.2d 412, 415 (D.C. Cir.
1986). The burden of demonstrating subject matter
jurisdiction rests with the party asserting jurisdiction,
Metro Hydroelectric Co., LLC v. Metro Parks, 541
F.3d 605, 610 (6th Cir. 2008) (internal quotation
marks and citation omitted), and Henness concedes that
“this Court apparently cannot yet address this second
motion for injunctive relief[.]” (Motion, ECF No. 2669,
PageID 132522). Nonetheless, he asks this Court to inform the
Sixth Circuit “that this Court ‘would grant the
motion if the court of appeals remands for that purpose or
that the motion raises a substantial issue.'”
Id., quoting Fed.R.Civ.P. 62.1(a)(3); citing
Fed.R.Civ.P. 62.1(b); Fed.R.App.P. 12.1(a)). Such a course of
action is imprudent in light of Henness's forthcoming
petitions for rehearing and rehearing en banc, in
which he seeks to change binding precedent. Henness even
states that “[s]hould the Sixth Circuit grant
rehearing, it may be prudent for this Court to await a Sixth
Circuit ruling [up]on rehearing[.]” Id. n.3.
In light of the procedural posture of Henness's appeal,
the Court's best course of action is to deny the motion
without prejudice. Fed.R.Civ.P. 62.1(a)(2).
Court, as discussed above, ordered Henness to file the
instant Motion by December 2, 2019 (Order, ECF No. 2636),
prior to the Sixth Circuit's issuing the amended decision
for which Henness seeks rehearing and rehearing en
banc. Therein, the Court noted that “[f]or all
persons whose executions are set after June 17, 2020, the
Court has mandated filing at least six months before the
execution; the same logic applies to Henness.”
Id. at 131559. By filing on the ordered date,
Henness has satisfied his obligation to put Defendants on
notice of the gravamen of his Motion, and Defendants will not
be prejudiced upon its renewal once jurisdiction is returned
to this Court.
as to Henness, the Motion for Preliminary Injunction (ECF No.
2669) is DENIED WITHOUT PREJUDICE to renewal within ten days
of the issuance of the mandate by the Sixth Circuit or, in
the event Henness receives further reprieves from the
Governor, six months prior to his scheduled execution date,
whichever occurs later.
https://drc.ohio.gov/execution-schedule (last accessed Jan.
 After the Motion was filed, Governor
R. Michael DeWine issued a Warrant of Reprieve, delaying the
execution of Bonnell from February 20, 2020, until March 18,
2021 (ECF No. 2692-1). Unlike with Henness (Order of
Reference, ECF No. 1912), the parties did not consent to
plenary Magistrate Judge jurisdiction under 28 U.S.C. §
636(c) as to Bonnell's Motions for Preliminary Injunction
(ECF Nos. 2664, 2669). Consequently, the Magistrate Judge has
issued Reports and Recommendations recommending that