Tibbetts v. Warden Chillicothe Correctional Institution

Filing 31

REPORT AND RECOMMENDATIONS ON MOTION TO DISMISS; DECISION AND ORDER ON MOTION TO AMEND - The Warden's Motion to Dismiss is technically moot because Tibbetts proposes to replace the Petition with an Amended Petition and it is respectfully recomme nded that the Motion to Dismiss be DENIED on that basis. The Motion for Leave to File an Amended and Supplemental Petition is DENIED without prejudice to its renewal not later than October 9, 2015. Objections to R&R due by 10/13/2015. Signed by Magistrate Judge Michael R. Merz on 9/23/2015. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
RAYMOND TIBBETTS,
Petitioner,

:

- vs -

Case No. 1:14-cv-602
District Judge Susan J. Dlott
Magistrate Judge Michael R. Merz

WARDEN, Chillicothe
Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS ON MOTION TO DISMISS;
DECISION AND ORDER ON MOTION TO AMEND

This capital habeas corpus case is before the Court on Respondent’s Motion to Dismiss
(ECF No. 22). Tibbetts opposes the Motion (ECF No. 25) and the Warden has filed a Reply in
support (ECF No. 28). The case is also before the Court on Tibbetts’ Motion for Leave to File
an Amended Petition (ECF No. 26) which the Warden opposes (ECF No. 29); Tibbetts has filed
a Reply in support (ECF No. 30).
Because a motion to dismiss is dispositive within the meaning of 28 U.S.C. § 636(b), it
requires a recommendation from an assigned Magistrate Judge, rather than a decision. However,
a motion to amend is a non-dispositive matter on which a Magistrate Judge has decisional
authority in the first instance. However, a motion to amend under Fed. R. Civ. P. 15 is nondispositive and therefore within the initial decisional authority of a Magistrate Judge.
The Warden bases her Motion to Dismiss on the recent decision of the United States
Supreme Court in Glossip v. Gross, 576 U.S. ___, 135 S. Ct. 2726 (2015), where the Justice
Alito wrote for the majority:
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Petitioners contend that the requirement to identify an alternative
method of execution contravenes our pre-Baze decision in Hill v.
McDonough, 547 U.S. 573, 126 S. Ct. 2096, 165 L. Ed. 2d 44
(2006), but they misread that decision. The portion of the opinion
in Hill on which they rely concerned a question of civil procedure,
not a substantive Eighth Amendment question. In Hill, the issue
was whether a challenge to a method of execution must be brought
by means of an application for a writ of habeas corpus or a civil
action under §1983. Id., at 576, 126 S. Ct. 2096, 165 L. Ed. 2d 44.
We held that a method-of-execution claim must be brought under
§1983 because such a claim does not attack the validity of the
prisoner’s conviction or death sentence. Id., at 579-580, 126 S. Ct.
2096, 165 L. Ed. 2d 44.
135 S. Ct. at 2738.
The Warden argues that this passage from Glossip “contradicts” the reading of Hill which
the Sixth Circuit gave that case in Adams v. Bradshaw, 644 F.3d 481 (6th Cir. 2011), when it held
that a challenge to a lethal injection protocol can be brought in a habeas corpus case under 28
U.S.C. § 2254. As the Warden notes, this Court has read Adams expansively to allow death row
inmates to pursue challenges to Ohio’s lethal injection protocols simultaneously in habeas corpus
and in a civil rights action under 42 U.S.C. § 1983. Gapen v. Bobby, 2012 U.S. Dist. LEXIS
121036, * 3-8 (S.D. Ohio 2012); Waddy v. Coyle, 2012 U.S. Dist. LEXIS 94103, *7 (S.D. Ohio
2012); Sheppard v. Robinson, 2012 U.S. Dist. LEXIS 121829, *1 (S.D. Ohio 2012); Bethel v.
Bobby, 2012 U.S. Dist. LEXIS 154041, *1-2 (S.D. Ohio 2012); Sheppard v. Warden, 2013 U.S.
Dist. LEXIS 5560, *21-22 (S.D. Ohio 2013); Turner v. Bobby, 2013 U.S. Dist. LEXIS 39470,
*3-4 (S.D. Ohio 2014).
This Court has persisted in this expansive reading of Adams despite refusals by the Sixth
Circuit to remand habeas cases for discovery on a lethal injection claim where the petitioner has
a pending § 1983 case in which he can receive the discovery necessary to support that claim.
Scott v. Houk, 760 F.3d 497 (6th Cir. 2014); accord, Frazier v. Jenkins, 770 F.3d 485 (6th Cir.

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2014). The Court has reasoned that neither Scott nor Frazier purported to overrule Adams,
which remained (and indeed remains) a published and unreversed decision of the circuit court.

Procedural History

Raymond Tibbetts brought his first habeas corpus petition to challenge his death sentence
in Case No. 1:03-cv-114 on February 18, 2003. The Petition in that case was dismissed with
prejudice on March 31, 2006. The dismissal was affirmed Tibbetts v. Bradshaw, 633 F.3d 436
(6th Cir. 2011), cert den. sub nom. Tibbetts v. Bobby, 132 S. Ct. 238 (2011). Tibbetts filed the
instant second-in-time Petition July 23, 2014 (ECF No. 2). The Warden moved to dismiss for
lack of jurisdiction on the grounds the Petition was second or successive (ECF No. 7). The
Magistrate Judge recommended denying that Motion on the basis of Adams (ECF No. 11) and
that recommendation was adopted by District Judge Dlott on March 5, 2015 (ECF No. 20),
several months before Glossip was decided.

ANALYSIS

The Warden’s Motion to Dismiss is directed to Tibbetts’ original Petition. The Motion is
technically moot because Tibbetts proposes to replace the Petition with an Amended Petition and
it is respectfully recommended that the Motion to Dismiss be DENIED on that basis.
The Warden repeats in her opposition to the Motion to Amend the arguments based on
Glossip, supra, that she makes in Motion to Dismiss (Opposition, ECF No. 29). For the reasons
already given in other recently-decided motions calling for application of Glossip, the Magistrate
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Judge concludes that Tibbetts’ Proposed Amended Petition does not adequately plead claims
cognizable in habeas corpus in light of the fact that Tibbetts is also a plaintiff in In re Ohio
Execution Protocol Litig., Case No. 2:11-cv-1016. See Landrum v. Robinson, 2015 U.S. Dist.
LEXIS 116914 (S.D. Ohio Sept. 2, 2015); Turner v. Hudson, 2015 U.S. Dist. LEXIS 119882
(S.D. Ohio Sept. 9, 2015); Franklin v. Robinson, 2015 U.S. Dist. LEXIS 120595 (S.D. Ohio
Sept. 10, 2015); and O’Neal v. Jenkins, 2015 U.S. Dist. LEXIS 121376 (S.D. Ohio Sept. 11,
2015). In summary, the Magistrate Judge has concluded that the expansive reading of Adams he
previously relied on is no longer tenable in light of Glossip, but that death row petitioners may
still be able to properly plead habeas claims related to lethal injection protocols.
Based on the reasoning in those decisions, the Motion for Leave to File an Amended and
Supplemental Petition is DENIED without prejudice to its renewal not later than October 9,
2015. In any renewed motion, Tibbetts must show clearly how any proposed new claims differ
from claims made or proposed to be made in the In re Ohio Execution Protocol Litig. case and
relate them to Ohio’s lethal injection protocol as amended June 29, 2015. For reasons already
given in the prior decisions, the Court hopefully requests Petitioner’s counsel to avoid using the
label “LI-habeas claims.”
For the reasons given in Landrum, supra., in any renewed motion to amend, Tibbetts
must restate his position on why this case is not a second or successive application under 28
U.S.C. § 2244(b)

September 23, 2015.
s/ Michael R. Merz
United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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