Cooey v. Kasich et al
ORDER denying (1022) Motion for TRO and Preliminary Injunction in case 2:04-cv-01156-GLF-MRA. Signed by Judge Gregory L Frost on 11/4/11. Associated Cases: 2:04-cv-01156-GLF-MRA, 2:09-cv-00242-GLF-EPD, 2:09-cv-00823-GLF-MRA, 2:10-cv-00027-GLF-MRA (sem1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
RICHARD COOEY, et al.,
Case No. 2:04-cv-1156
JUDGE GREGORY L. FROST
Magistrate Judge Mark R. Abel
JOHN KASICH, et al.,
Case No. 2:09-cv-242
JUDGE GREGORY L. FROST
Magistrate Judge E.A. Preston Deavers
JOHN KASICH, et al.,
Case No. 2:09-cv-823
JUDGE GREGORY L. FROST
Magistrate Judge Mark R. Abel
JOHN KASICH, et al.,
Case No. 2:10-cv-27
JUDGE GREGORY L. FROST
Magistrate Judge Mark R. Abel
JOHN KASICH, et al.,
OPINION AND ORDER
This litigation has too often supported the inherent truth of the adage that those who
cannot learn from history are doomed to repeat it. With some caution, the Court today reaches
the conclusion that the State of Ohio has apparently learned the lessons of its prior
embarrassments and corrected its course in order to pursue court-ordered implementation of its
latest written execution protocol.
The captioned cases are before the Court for consideration of Plaintiff Reginald Brooks’
motion for a temporary restraining order and a preliminary injunction (ECF No. 1022) and
Defendants’ memorandum in opposition (ECF No. 1042).1 Similar to those filings related to
inmates who previously sought to stay scheduled execution dates, the issue presented by the
briefing sub judice is relatively simple: has Plaintiff demonstrated that he is likely to succeed in
establishing that the Ohio has an unconstitutional execution policy so that he deserves a stay of
execution that will afford him the chance to prove his case? Because Plaintiff has failed to
demonstrate a substantial likelihood of succeeding on his Equal Protection claim, this Court
finds the motion for injunctive relief not well taken.
For ease of reference, the Court shall refer to any filing by its docket number in Case
No. 2:04-cv-1156. The references in this Opinion and Order also apply to each corresponding
document filed in each consolidated case. Additionally, all pinpoint references to documents
filed on the electronic docket shall be to the original page numbers of the documents involved,
not to the page numbers assigned by the electronic filing system.
The captioned consolidated cases are 42 U.S.C. § 1983 civil rights actions that challenge
multiple facets of the execution protocol used by the State of Ohio. Plaintiff Reginald Brooks is
an inmate on Ohio’s death row who is set to be executed on November 15, 2011. On September
29, 2011, Plaintiff filed a motion for leave to file an amended complaint (ECF No. 1021) and his
motion for a temporary restraining order and preliminary injunction to stay his execution (ECF
No. 1022). Pursuant to S. D. Ohio Civ. R. 65.1(a), the Court therefore held an informal
preliminary conference with the parties on that same day, at which the Court set a briefing
schedule on intervention and scheduled a hearing date if the injunctive relief issue became ripe.
(ECF No. 1023.) This Court subsequently granted Plaintiff’s opposed motion to intervene and
permitted the filing of his complaint. (ECF No. 1038.) In that pleading, Plaintiff asserts Eighth
Amendment and Fourteenth Amendment challenges to Ohio’s execution practices via § 1983.
(ECF No. 1039.)
From October 31, 2011 through November 2, 2011, the Court held a hearing on
Plaintiff’s motion for injunctive relief. Both sides presented testimony and submitted written
closing statements to supplement their briefing. The Court took the issue of injunctive relief
The findings of fact related to this Opinion and Order are not conclusive given that
“findings of fact and conclusions of law made by a district court in granting a preliminary
injunction are not binding at a trial on the merits.” United States v. Edward Rose & Sons, 384
F.3d. 258, 261 (6th Cir. 2004) (citing University of Texas v. Camenisch, 451 U.S. 390 395
A. Standard involved
In considering whether injunctive relief staying Plaintiff’s execution is warranted, this
Court must consider (1) whether Plaintiff has demonstrated a strong likelihood of success on the
merits; (2) whether Plaintiff will suffer irreparable injury in the absence of equitable relief; (3)
whether a stay would cause substantial harm to others; and (4) whether the public interest is best
served by granting a stay. Cooey v. Strickland, 589 F.3d 210, 218 (6th Cir. 2009) (citing
Workman v. Bredesen, 486 F.3d 896, 905 (6th Cir. 2007); Ne. Ohio Coal. for Homeless & Serv.
Employees Int'l Union, Local 1199 v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006)). As the
Sixth Circuit has explained, “ ‘[t]hese factors are not prerequisites that must be met, but are
interrelated considerations that must be balanced together.’ ” Id. (quoting Mich. Coal. of
Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991)).
B. Likelihood of success3
On July 8, 2011, this Court issued a decision in which the Court set forth at length
numerous deviations by state actors from the state execution protocol then in effect, including
core deviations that subverted the key constitutional principles that control the execution
process. This Court found that
[t]he perplexing if not often shocking departures from the core components of the
execution process that are set forth in the written protocol not only offend the
Constitution based on irrationality but also disturb fundamental rights that the law
bestows on every individual under the Constitution, regardless of the depraved nature
of his or her crimes.
By order of this Court and by continuing agreement of the parties, all references to
Ohio’s execution team members are again by generic identifiers established by the parties and
employed to address anonymity and safety concerns.
(ECF No. 947, at 59.) Consequently, this Court enjoined Ohio and any person acting on its
behalf from implementing an order for the execution of Plaintiff Kenneth Smith until further
Order from this Court.
Defendants did not appeal the Smith decision and instead set about revising Ohio’s
execution protocol. This resulted in the current iteration of the state’s execution protocol, which
became effective on September 18, 2011. In the interim period between the Smith decision and
today, no scheduled execution proceeded. Defendant Kasich granted Plaintiff Brett Hartman a
reprieve (ECF No. 955), Plaintiff Billy Slagle a reprieve (ECF No. 982), and commuted former
plaintiff Joseph Murphy’s sentence to life in prison without the possibility of parole (ECF No.
Bringing Defendants back before this Court, Plaintiff argues that little has changed–and
that the protocol and its implementation may have become even worse–since the Smith decision.
Defendants in contrast present themselves as, essentially, having found religion in the
vernacular, appropriately secular sense. Invoking a new protocol and a convenient but
nonetheless credible newfound conversion (or at least return) to following their own rules and
the Constitution, Defendants attempt to hit the reset button on this litigation. They assert that
they get the message, that they recognize the constitutional principles that apply to their actions,
and that they more than ever regard the new and improved protocol as binding and not advisory
or aspirational. To support these contentions, they have presented testimony from key
decisionmakers who control the state execution process, some of whom have laudably reversed
course in their approach both to the protocol and the obligations the Constitution imposes.
Now, bereft of testimony revealing Ohio’s execution protocol to be merely advisory
guidelines subject to being disregarded at whim, Plaintiff has essentially presented a two-track
narrative most easily summarized as do not believe Defendants and do not credit their
meaningless protocol revisions. These are perhaps not unreasonable positions given Defendants’
history in this litigation, which is not to say that these are prevailing positions. Plaintiff’s theory
of the case is that having been burned in the Smith decision for truthfully if no doubt
inadvertently characterizing their protocol as a compilation of ultimately meaningless guidelines,
Defendants have figured out that paying lip service to what is important to this Court (i.e., what
is important to the Constitution) is the better strategy. Plaintiff also posits that what Ohio has
presented as salvaging changes to the protocol are at best cosmetic glosses that do not resolve
core problems and are at worst conflicting words that serve only to introduce additional and
perhaps even greater problems than those recognized in the Smith decision.
Plaintiff’s arguments fall under his fourth claim, which asserts an Equal Protection
violation under 42 U.S.C. § 1983.4 Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or other proper proceeding for redress
42 U.S.C. § 1983. Thus, in order to prevail on a § 1983 claim, Plaintiff must show that, while
acting under color of state law, Defendants deprived or will deprive him of a right secured by the
Federal Constitution or laws of the United States. See Alkire v. Irving, 330 F.3d 802, 813 (6th
Cir. 2003). Plaintiff’s Second Amended Complaint asserts that “Defendants’ overarching
Plaintiff has narrowed the grounds on which he currently seeks injunctive relief to the
core deviations portion of this specific claim.
execution policy, including their wholly discretionary approach to their written execution
protocol and their informal policies, violates [his] rights to equal protection under the law as
guaranteed by the Fourteenth Amendment.” (ECF No. 1039 ¶ 475.) He contends that the
September 18, 2011 protocol is facially invalid because it codifies disparate treatment of
similarly situated individuals without sufficient justification so as to be arbitrary, irrational, and
capricious. Plaintiff also asserts that he is a class of one subject to treatment that burdens his
fundamental rights in a manner that is not rationally related in any way to a legitimate state
Both of these equal protection arguments are cognizable under § 1983. The Sixth Circuit
has explained that
“[t]he Equal Protection Clause of the Fourteenth Amendment commands that
no state shall ‘deny to any person within its jurisdiction the equal protection of the
laws.’ U.S. Const. amend. XIV, § 1. The Supreme Court has stated that this
language ‘embodies the general rule that States must treat like cases alike but may
treat unlike cases accordingly.’ ” Radvansky v. City of Olmsted Falls, 395 F.3d 291,
312 (6th Cir. 2005) (quoting Vacco, 521 U.S. at 799, 117 S.Ct. 2293). To establish
a claim for relief under the Equal Protection Clause, a plaintiff must demonstrate that
the government treated the plaintiff disparately as compared to similarly situated
persons and that such disparate treatment either burdens a fundamental right, targets
a suspect class, or has no rational basis. Id.; see also TriHealth, Inc., 430 F.3d at
Club Italia Soccer & Sports Org., Inc. v. Charter Twp. of Shelby, Mich., 470 F.3d 286, 298 (6th
Cir. 2006). When the disparate treatment burdens a fundamental right, strict scrutiny applies.
Miller v. City of Cincinnati, 622 F.3d 524, 538 (6th Cir. 2010). This means that any core
deviations from the protocol are permissible only if they are narrowly tailored to a compelling
governmental interest. Does v. Munoz, 507 F.3d 961, 964 (6th Cir. 2007).
Plaintiff points to his fundamental right to be free from cruel and unusual punishment.
As they did with Smith’s similar claim, Defendants attempt to transform Plaintiff’s Fourteenth
Amendment claim into a pure Eighth Amendment claim. But the former claim sufficiently
targets that sweeping core deviations would at least burden Plaintiff’s fundamental right by
negating some of the precise procedural safeguards that this Court and the Sixth Circuit heralded
in prior discussions of Eighth Amendment claims in this same litigation. For present purposes, it
does not matter whether there is a qualifying risk of severe pain–a conclusion rejected by the
only medical expert who testified–but only the creation of unequal treatment impacting the
fundamental protection involved.
As noted, Plaintiff also argues that he constitutes a “class of one” and that a pattern and
practice of core deviations exist that are impermissible because they lack any rational basis. The
Sixth Circuit has explained the class of one approach:
When a plaintiff does not allege that the government’s actions burden a
fundamental right or target a suspect class, the plaintiff is said to proceed on a socalled “class of one” theory and must prove that the government’s actions lacked any
rational basis. Radvansky, 395 F.3d at 312. Under rational basis scrutiny,
government action amounts to a constitutional violation only if it “is so unrelated to
the achievement of any combination of legitimate purposes that the court can only
conclude that the government's actions were irrational.” Warren v. City of Athens,
411 F.3d 697, 710 (6th Cir. 2005). A “plaintiff may demonstrate that the government
action lacks a rational basis . . . either by negativing every conceivable basis which
might support the government action, or by demonstrating that the challenged
government action was motivated by animus or ill-will.” Id. at 711; see also
TriHealth, Inc., 430 F.3d at 788 (citing Warren, 411 F.3d at 710).
Under rational basis review, the defendant “has no obligation to produce
evidence to sustain the rationality of its actions; its choice is presumptively valid
and ‘may be based on rational speculation unsupported by evidence or empirical
data.’ ” Id. at 790 (quoting Fed. Comm. Comm’n v. Beach Comm., Inc., 508 U.S.
307, 315, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993)). The burden falls squarely to
the plaintiff, who must overcome the presumption of rationality by alleging that
the defendant acted in a manner clearly contrary to law. Id.
Club Italia Soccer & Sports Org., Inc., 470 F.3d at 298. Similar to Smith, Plaintiff also asserts
that the only rationale for core deviations that eliminate safeguards and introduce greater
uncertainty into the execution process is to merely complete the executions at all or nearly all
In contrast to Smith, Plaintiff brings his arguments amid an analytic landscape that has
changed significantly and to Defendants’ benefit. Because the execution protocol and
Defendants’ approach to the protocol has by all appearances matured, Plaintiff now confronts an
execution context in which Defendants have addressed the key concerns that provided the
animus underlying the Smith decision.
In that prior Opinion and Order, this Court noted that “[t]he core components of the
written protocol as set forth in the [then applicable] incarnation of the execution protocol are
adequate even if capable of further refinement. It is only Ohio’s implementation of these core
components that is often grossly and inexplicably inadequate.” (ECF No. 947, at 52.) Such
flawed implementation manifested itself in what this Court described as four core deviations: (1)
Ohio fails to document the preparation of the execution drugs, (2) Ohio fails to follow
formalized procedures designed to ensure adequate preparation for the administration of drugs
by IV, (3) Ohio fails to adhere to systemic redundancies that would minimize if not eliminate the
possibility of human error, (4) Ohio fails to exercise control over who participates in an
execution. The overarching issue underlying all of these problems was that Defendants
perceived that they were free to ignore their own protocol due to convenience, pragmatism, or
incompetence, which meant that Ohio would ignore the constitutional restraints on state actors’
Things have changed. It does not matter to this Court whether Ohio has acted motivated
by admirable intent or whether it has been begrudgingly dragged toward respectability. What
matters is that as a result of state action, the written protocol is now binding, the possibility of
variations from less core components has been curtailed and such variations now run to one
decisionmaker, and the possibility of variations from the most essential or core components now
lies outside the discretion of any decisionmaker because they are not possible. Moreover,
Defendants have tightened procedures and have implemented checklists and safeguards extrinsic
to the protocol that, effectively employed, will serve to reinforce the protocol requirements.
Warden Donald Morgan correctly described the checklists as a checks and balances system that
is not mentioned in the written protocol but assists in maintaining compliance with that protocol.
Such practices that technically exist outside the written protocol constitute the same type of
unwritten practices that in the past served to prop up inferior execution protocol versions. Ohio
would be foolish to now abandon them, and the state’s implementation of these practices
warrants positive recognition.
The net effect of Ohio’s revised practices and revised protocol is essentially twofold.
First, there is a return to viewing the protocol and unwritten practices as linked. Like other
courts entertaining challenges to lethal injection protocols under § 1983, this Court followed for
much of this litigation the parties’ lead in “us[ing] the term ‘protocol’ to encompass not only the
quantities, preparation, injection, and the actual drugs administered during the execution process,
but also all policies, procedures, and staff qualification requirements.” Walker v. Epps, 587 F.
Supp. 2d 763, 766 n.3 (N.D. Miss. 2008). In the Smith decision, this Court discontinued use of
the blanket term “protocol” in such a manner because it failed to capture the division that
Defendants’ Smith-era approach presented. The Smith evidence previously suggested an
overarching execution policy and a notably subordinate written execution protocol. The
contemporary evidence now supports that Defendants have returned to a protocol that embodies
an expression of an overall concern for constitutional conduct. Moreover, the evidence indicates
that unwritten policies and practices once again support the constitutionality of Ohio’s execution
practices, rendering the protocol more sound.
The second effect of Ohio’s recent efforts is that Plaintiff has failed to meet his burden of
proof. Plaintiff sought in his motion to assert the law of the case doctrine as a sword so that
Defendants would bear the burden of rebutting a presumption of injunctive relief based on the
Smith decision. This Court wholly rejected that proposition at the outset of the hearing. The
burden remains on Plaintiff, especially in light of the fact that the relevant facts have changed
since the Smith decision.
One such changed fact is that the written protocol is no longer a set of guidelines that can
be set aside regardless of the constitutional effect of such action. This fact is perhaps best
captured in the testimony of Regional Director Edwin Voorhies, who has changed his position
once again, but this time to a position that favorably addresses constitutional concerns.
Previously in this litigation, he testified that the written execution protocol carries the force of
administrative law. The SOCF warden is required to follow the protocol, Voorhies testified in
2009, and former DRC Director and former SOCF warden Terry J. Collins, his then-supervisor,
agreed. At the Smith hearing, Morgan, the latest SOCF warden, testified that the written
protocol in effect at that time was merely a set of guidelines. Voorhies surprisingly agreed. This
led the Court to conclude that Ohio’s execution protocol was (and might have always been) an
advisory compilation of guidelines subject to being ignored.
The Brooks hearing presented a different story. Ohio Department of Rehabilitation and
Correction Director Gary Mohr’s testimony in particular indicated a rejection of the pervasive
bureaucratic ennui that this Court has long targeted as notably troubling. He described the Smith
decision as difficult to read, which concerned this Court and its law clerks until Mohr explained
that he did not mean there was inept writing presenting a confusing Opinion and Order. Rather,
Mohr testified, what he meant was that the criticism leveled at Ohio was troubling or
uncomfortable. He explained that the new protocol and approach was intended to embrace a
policy of strict compliance. Mohr also clarified protocol language so that the protocol’s use of
“variation” and “deviation” were revealed to mean the same thing–departures from the written
protocol–and he testified that only he could approve a “variation of a substantial nature,” or as he
defined it, a variation that would have an impact on the execution itself. Mohr described
variations from requisite training as intolerable.
Morgan and Voorhies largely echoed Mohr. The new protocol strips the warden of much
of his execution-related discretion in a sense, and Morgan evinced an understanding that he
cannot delegate his execution duties to a team member. Like Mohr, Morgan testified that there
is no difference in the written protocol between a variation and a deviation. Unlike Mohr,
Morgan also testified that there is no difference between a substantial variation, or a variation of
a substantial nature, and the terms “variation” or “deviation.” In other words, Morgan
understood the protocol to mean that a departure is a departure, and he explained that they all fall
above his pay grade. Morgan testified that Mohr has made it clear that the protocol is to be
faithfully, consistently, and strictly applied.
Voorhies now agrees. He testified that although Section II of the written protocol still
uses the term “guidelines,” his approach is now quite different than the approach he expressed in
the Smith hearing. He agreed that the protocol went from binding administrative law to advisory
to binding again. Voorhies also testified that a deviation is the same as a variation under the
protocol and that a team member cannot vary from the protocol.
The Court notes that Mohr testified that he understood the protocol to permit the warden
to authorize protocol deviations. This is of course incorrect. It appears Mohr was crediting only
Section V, the second unnumbered paragraph of which provides that “[a]ny variation of a
substantial nature must be approved by the Director as described in this policy.” Section
VI(A)(6) expressly provides, however, that “[o]nly the Director may authorize a deviation from
the procedures in this policy directive.” Thus, one protocol provision leaves substantial
variations only to the Director, and another provision leaves any variation or deviation to the
Director. The end result is that all departures from the written protocol are up to the Director.
The error on Mohr’s part in recognizing the full scope of his responsibility does little for
Plaintiff’s cause for two reasons.
First, the only example non-substantial variation or deviation Mohr suggested (and the
only one mentioned throughout the hearing) was when a warden would adjust inmate visitation.
Mohr correctly recognized this as falling within the warden’s purview, even if he failed to
explain or recognize why it is within the warden’s ability. Section VI(E)(7) specifically provides
the warden with the discretion to increase visiting opportunities in the manner Mohr and others
contemplated. Increasing visitation time or frequency is therefore actually not a deviation from
the written protocol, but is instead a commendable part of that protocol. There can be no
constitutional violation in giving an inmate more visitation and, more important for present
purposes, there is technically no written protocol departure when a warden does so.
Second, both Morgan and Voorhies testified that variations or deviations were left to the
Director. Team Member # 10, the execution team leader, testified multiple times that he lacks
the authority to authorize deviations. Even if Mohr thought that select subordinates could
authorize protocol departures, the subordinates do not, and any possible departure would
consequently flow upward to the only decisionmaker empowered under the protocol to authorize
or deny the departure. The end result is the same: as the protocol contemplates, only the
Director ultimately passes judgment on protocol departures. The Court also notes its suspicion
that Mohr will no doubt recognize the mandate of Section VI(A)(6) following the filing of
Given the foregoing, core deviations are once again outside Defendants’ approach to the
written protocol, rendering applicable again this Court’s prior analysis from its April 21, 2009
Opinion and Order:
[T]here is no evidentiary basis for concluding that those parts of the written protocol
related to the preparation for administering and the actual administration of drugs
would be disregarded. Collins, for example, testified that a warden asked him for
permission to deviate from the written execution policy regarding when an inmate’s
visitors would be allowed access to the condemned. Collins granted the warden
permission to deviate from the written protocol and the warden did so, permitting
late-arriving individuals time with an inmate despite their having arrived at SOCF
technically too late for visitation. This is a laudable deviation viewed from the
standpoint of simple humanity. It also suggests that despite testimony that the
written protocol stands as the law, deviation at the election of the state actors
involved in the system is possible.
The next obvious question is how far this deviation extends. Could, for
example, the warden request and the director approve deviation from the written
policy of using sodium thiopental? Such an irrational deviation is unlikely but
theoretically possible if the scope of the ability to depart from the written policies
and procedures is truly unlimited. This illustrative deviation would naturally be
problematic from a constitutional standpoint, but there is no basis on this record for
concluding by inference or otherwise that such deviations from the core execution
procedures [are] likely or even possible. Moreover, concluding that deviation from
the core execution procedures is likely would require an impermissible drawing of
an unwarranted inference upon an inference: first, that deviation from any provision
of the written protocol is possible, and second, that the actors involved would or are
likely to deviate from the substantive core procedures. Accordingly, absent evidence
to the contrary, this Court cannot conclude that the remote, theoretical possibility of
deviation from the core procedures presents a likely substantial risk of substantive
Cooey (Biros) v. Strickland, 610 F. Supp. 2d 853, 928 (S.D. Ohio 2009).
Absent evidence that a policy and practice of permissible core deviations continues to
exist, the conclusion of subjective adherence that proved so damaging to Defendants in Smith is
absent here. This leaves Plaintiff with his assertion of a parade of horribles by which he seeks to
ensnare Defendants in a web of unconstitutionality.
One component of Plaintiff’s parade is his argument targeting shoddy or careless
recordkeeping and drug handling. Testimony and other evidence pointed to the fact that
unexpired drugs remain in the prison safe. Pharmacy manager Denise Dean explained that these
drugs remained in the safe at least in part in case there was a need to prove that Ohio still had the
expired drugs and had not used them in an execution. There is no evidence that Ohio has used
expired drugs as part of an execution, and the Court accepts Mohr’s testimony that Ohio will not
use expired drugs even if the written protocol does not explicitly preclude such action.
This last portion of testimony is another unwritten practice or policy that serves to
supplement the written protocol, and Ohio is now bound by the representation its agent has made
to this Court. The same applies to Mohr’s representation that Ohio will not use imported drugs.
Granted, Mohr testified that there were no unwritten policies that were part of the execution
policy, but this subjective assessment turns on perhaps a different use of terminology than that
applied by this Court. Mohr also testified that the use of expired drugs is “unconscionable” to
him and would fly in the face of every policy behind the protocol. Numerous instances of state
practices described herein qualify as such unwritten policies to this Court, some of which aid
Defendants. Whether Mohr labels them unwritten policies is not important. What matters is that
Ohio follows them and that they serve the interests of constitutionality, not detract from these
In light of the fact that the issue of Ohio’s past use of expired drugs has been laid to rest
and the binding concession presented to this Court, it would make sense for Ohio to promptly
destroy the expired drugs and wholly obviate the risk that human error in recordkeeping or
action will render this drugs of future concern in this or similar litigation.
Moreover, the recordkeeping issues Plaintiff raises target either conduct under old
protocols and more permissive execution policies or conduct related to rehearsal issues to which
the protocol does not apply in the same way as during an execution. Neither the Constitution nor
the protocol require a perfect or near perfect rehearsal. The protocol demands appropriately
trained and qualified members and mandates rehearsals, but it does not micromanage the
rehearsals. Voorhies correctly testified to this, explaining that the protocol does not define the
full content of the rehearsal and that a deviation from the protocol in a rehearsal is not
necessarily violating the protocol. A rehearsal is a working laboratory for training and
improvement; it is not intended as a gotcha opportunity that strictly construed can serve only to
impede valuable experimentation and learning that could serve to improve Ohio’s execution
practices. Prudence dictates and encourages making mistakes when they do not matter so as to
increase the chance of avoiding mistakes when they do matter. Nothing in the protocol
establishes more than broad rehearsal content and absolutely nothing imposes the avoidance of
any and all rehearsal errors that Plaintiff seeks to enforce.
This is not to say that rehearsals should be sloppy or that they cannot be improved. It
would make sense for at least the team leader if not his chain-of-command superiors to review
rehearsal results more than they do, perhaps, for example, by reviewing the practice timelines for
inaccuracies so that any issue can be addressed and the actual execution timelines will present a
greater degree of reliability than they currently do.
Nor does the protocol require strict attendance at all rehearsals by all team members.
Plaintiff argues that absences are impermissible, but the testimony supports that select absences
are approved. More communication regarding absences between the subordinate supervisors and
Mohr would further the aims of the protocol process and better support the fourth core
component set forth in Section V of the protocol. But Plaintiff overreaches when he argues that
Ohio has abandoned oversight principles regarding attendance. The Constitution does not
preclude vacation and it does not preclude a policy of minimal permissible absences for reasons
that are wholly unconnected to any particular inmate. It does preclude ignored absences that
would render an execution team member insufficiently trained or unqualified. There is no
evidence establishing a likelihood of proving such results here.
The Court shares Plaintiff’s concern over records that do not reflect Morgan as having
removed drugs from the prison safe. This concern is not dispositive. Evidence explained the
circumstances by which this occurred, with the person who should have removed the drugs
thinking that the execution involved had been called off. Departures from procedure are always
concerning, but they are not always of constitutional dimension and do not always support an
encompassing inference of greater disregard for the protocol, especially in the post-Smith
protocol context. Additionally, Dean testified that she would be reporting to the prison on
scheduled execution regardless of reports that an execution has been stayed by a court. Such
unwritten prophylactic practices present a change in conduct that addresses the circumstances of
which Plaintiff complains.
More favorable at first blush to Plaintiff is Ohio’s handling of his pre-execution physical
and mental evaluations. The new protocol calls for an assessment of an inmate within a
specified number of days prior to his or her execution. Belatedly disclosed hearing evidence
indicates that Ohio conducted such evaluations, even if at least one of the individuals examining
Plaintiff did not know the reasons for the evaluation until after the fact and even he only fulfilled
the requirements of the assessment essentially by luck. The physician who conducted the handson examination of Plaintiff testified that he performed the IV assessment of Plaintiff’s veins as a
matter of course because he routinely does so in many physical evaluations. Ohio thus fell into
compliance with this protocol requirement. It would have made much more sense the doctor had
been told beforehand that Ohio needed a pre-execution protocol for Plaintiff. Inexplicably, he
was not, despite the fact that the doctor opined that as part of his duty to care for inmates, he
believes that he could ethically perform such an assessment. Regardless, the requisite
assessment was completed.
Plaintiff questions the sufficiency of the assessment. He argues that the protocol requires
that the execution team be informed of his physical condition, including high blood pressure that
testimony indicated could result in Plaintiff’s demise at nearly any moment. Plaintiff perhaps
places more demands than either the protocol or the Constitution compel. Full information
sharing would certainly make sense, even if not compelled by Ohio’s rules or the Constitution.
But in making the argument he does, Plaintiff overlooks a key fact: he is refusing to take his
medication. Any risk related to his high blood pressure is in part self-inflicted, and Plaintiff has
directed this Court to no authority supporting the proposition that a state violates equal
protection when it fails to communicate every potential medical roadblock an inmate voluntarily
creates to being healthy enough to execute. Other record evidence similarly supports the
conclusion that Ohio conducted the requisite mental health evaluation, even if the conclusions
reached did not necessarily agree with older conclusions reached prior to Plaintiff entering the
system as a death-sentenced individual. It would make sense for the execution team to know as
much detail as possible about an inmate’s physical and mental condition. It does not violate the
Constitution if they know less than everything.
While on the topic of medical activities, the Court also recognizes that Ohio has added
additional team members to the execution team in an effort to now avoid having an insufficient
number of medical team members at any execution. Mohr testified that there have been
instances in which less than three medical team members were present at an execution and that
this will not happen again. The September 18, 2011 protocol expressly provides, without a
possibility of variation, that three medical team members shall be present at every execution and
that two of the three be authorized to administer drugs under state law. This implementation of a
binding systemic redundancy helps minimize the possibility of human error, a key concern in the
Smith decision. This Court previously and expressly relied upon the built-in systemic
redundancy check on drug administration that sufficient medical team members provide,
Ohio has a system of redundancies in place in which no actor is left alone
without observation. One medical team member mixes the drugs while watched by
at least one additional state actor. Two medical team members are present in the
holding cell while establishing heparin locks. The warden and the team leader
together check for sufficient inmate unconsciousness and IV infiltration in the death
chamber. One medical team member pushes the drugs while another medical team
member is present in the equipment room, in addition to the narrator and other
individuals. In short, there are specific safeguards in addition to the general
observations of team members by one another and by the warden that protect against
a team member underperforming in a manner that creates a likely risk of serious
harm. These protections guard against one unchecked individual deviating from
permissible procedures as a result of medical issues. And although the protections
may not be foolproof, none could be; there is always the risk of human error whether
caused by inadvertence, misfeasance, or medical issues. What is important is that
the risk is acceptably mitigated here so as to not rise to a constitutionally
Cooey v. Strickland, 610 F. Supp. 2d 853, 929 (S.D. Ohio 2009) (vacating preliminary injunction
staying the execution of Kenneth Biros). See also Cooey v. Strickland, No. 2:04-cv-1156, 2009
WL 4842393, at *90 (S.D. Ohio Dec. 7, 2009) (denying Biros a temporary restraining order).
Additionally, although Section VI(A)(5)(d) of the protocol permits recruitment of an
advising physician or medical personnel, it limits such an individual’s role to providing
consultation or advice. Such restriction negates letting into the execution chamber such an
individual who could then attempt to start an IV or perform any form of procedure, addressing
another key event in this litigation’s history that continues to trouble this Court.
Plaintiff argues that the protocol is unconstitutional because of the methods by which
Ohio has obtained execution drugs. This Court did not reach this issue in the Smith decision
because the core deviations that the Court addressed in that analysis proved dispositive of
Smith’s motion for injunctive relief. On the record evidence now before the Court, there is no
basis for concluding that Plaintiff is likely to prove that the new protocol and state practices
violate the Constitution. Ohio has obtained a second DEA license to validate (if necessary) its
drug procurement and has obtained an Ohio Board of Pharmacy resolution that approves of the
protocol drug procurement. The past practices upon which Plaintiff relies were done under an
old protocol and without the benefit of the second license and the newest, arguably much more
expansive resolution. With an implicit we all know what went on here wink and nudge, Plaintiff
asks this Court to reject the Ohio Board of Pharmacy’s action because Defendants allegedly told
the separate state agency what they wanted and the Ohio Board of Pharmacy simply complied.
There is no basis on this limited record to reach that conclusion or to hold that the resolution
This leaves for discussion Plaintiff’s reliance on how Ohio proceeded toward the planned
execution of Slagle.5 Plaintiff points to various errors and asserted mistakes that purportedly
violate the September 18, 2011 protocol as evidence of Ohio’s inability or unwillingness to
adhere to the new protocol, no matter what Defendants say. But the Slagle evidence actually
cuts against Plaintiff. For the sake of argument, the Court shall credit every asserted protocol
violation that Plaintiff asserts occurred, such as Ohio having blown the mandated pre-execution
Pointing to this Court’s recognition in the Smith decision that other issues aside from
the four core deviations exist, Plaintiff asserts in his motion that the September 18, 2011 protocol
fails to remedy these issues. Plaintiff’s conclusory argument fails to inform this Court of his
specific contentions and thus fails to persuade. Similarly, Plaintiff’s assertion in his written
closing statement that injunctive relief is warranted because the protocol restricts his last words
hardly arises from the hearing evidence or the motion briefing and is simply unpersuasive. Such
an argument-by-kitchen sink approach mirrors at least one aspect of Plaintiff’s motion in which
he attempts to persuade by referencing without detail numerous filings, including “all hearing
and deposition transcripts and other evidentiary materials previously filed on the docket for any
of these consolidated cases.” (ECF No. 1022, at 4.) Two comments are appropriate. First, the
docket in Case No. 2:04-cv-1156 alone presents nearly one thousand fifty filings spread out over
seven years. Second, given this first point and given that this Court is in the business of
resolving disputes and not charged with fashioning arguments from nearly random asides, some
might argue that informing the Court of the specific arguments asserted and providing supporting
authority for the positions taken would be a more prudent litigation strategy.
vein assessment and medical evaluation, in addition to conducting an insufficient mental health
evaluation (which Morgan conceded did not comply with the new protocol). This Court can then
conclude only that the system worked. After consultation with key actors, including a ninetyminute meeting with Mohr, Defendant Kasich stepped in and gave Ohio more time to get it
right–more time to hone the new protocol practices and more time to honor the Constitution’s
requirements. Rather than constituting systemic failure that damns the execution process, the
events surrounding Slagle are a testament to Ohio’s willingness to stop the march toward an
execution and start over if and when necessary. Such action is to be commended, not derided.
Of little importance to any of the foregoing is the protocol addition of a special assistant.
Various witnesses made much of this position and the quality assurance review she is to conduct
in connection with each execution. Defendants offer the special assistant as evidence of their
commitment to a constitutional process. Plaintiff in turn questions the qualifications and
objectivity of the special assistant, who as yet has had no perceivable impact on Ohio’s
execution process. The Court notes the parties’ dispute here merely for the sake of completeness
and concludes that neither the testimony related to this position nor the testimony given by the
special assistant informed the issues in any meaningful way.
The dispositive questions before this Court today have been whether Plaintiff is correct
that Defendants routinely deviate from mandated or core provisions set forth in the written
protocol and whether Plaintiff has sufficiently proved that the protocol fails to address
sufficiently varied constitutional concerns. The answer to both questions is no. After the Smith
rebuke, it appears that the state officials involved have finally recognized that subject adherence
to the protocol and too much discretion to depart from core provisions or safeguards are neither
laudable nor constitutionally permissible approaches. Thus, “the perplexing if not often
shocking departures from the core components of the execution process that are set forth in the
written protocol” appear to be relegated to the past, obviating the conclusion that Ohio’s
execution practices offend the Constitution based on irrationality and disturb fundamental rights
that the law bestows on every individual regardless of the depraved nature of his or her crimes.
(ECF No. 947, at 59.)
The first injunctive factor does not weigh in Plaintiff’s favor.
C. Irreparable injury, substantial harm to others, and the public interest
The Sixth Circuit has explained that in regard to the issue of whether injunctive relief
should stay an execution date, “the absence of any meaningful chance of success on the merits
suffices to resolve this matter.” Workman, 486 F.3d at 911. Because this Court has concluded
that the first factor weighs against the issuance of injunctive relief, the Court need not and shall
not address the remaining factors.
As in prior injunctive relief decisions, the Court does not conclusively hold today that
Ohio’s method of execution practices are constitutional or unconstitutional. Today’s decision
merely recognizes that based on all of the record evidence, Plaintiff has not met his burden of
persuading this Court that he is substantially likely to prove unconstitutionality and prevail in
this litigation. This is not to say, however, that the Court is without concern over the successful
implementation of and adherence to the September 18, 2011 protocol.
Ohio has time and again struggled with competence and consistency, and the Court
remains wary. There are competing inferences involved here. Past bad behavior does not
invariably serve as a conclusive predictor of future poor conduct. At the same time, assertions of
Ohio has changed, just give the state one more chance are not wholly effective at purging past
sins. The Court is cognizant of the significant measures that Ohio has implemented to improve
its protocol and the practices surrounding that protocol. The Court also recognizes the
commitment of the individual state actors involved to lawfully, competently, and humanely
discharge their execution-related duties. If the revised protocol aligned with the professionalism
of the execution team and its supervisors meets with truly effective implementation, the lessons
of the past will have produced a learned result that escapes the unconstitutional infirmities that
have long plagued Ohio.
Based on the record evidence before this Court, there is no reason to conclude that
Defendants will fail and that Plaintiff is likely to prevail on his § 1983 claims. Accordingly, the
Court DENIES Plaintiff’s motion for a temporary restraining order and a preliminary injunction.
(ECF No. 1022.)
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE
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