Turner v. Warden

Filing 251

REPORT AND RECOMMENDATIONS re 246 MOTION to Dismiss RENEWED MOTION TO DISMISS filed by Warden Warren Correctional Institution Objections to R&R due by 9/28/2015. Signed by Magistrate Judge Michael R. Merz on 9/9/2015. (srb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
MICHAEL R. TURNER,
:
Petitioner,

Case No. 2:07-cv-595
:

District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

-vsSTUART HUDSON, Warden,
:
Respondent.

REPORT AND RECOMMENDATIONS

This capital habeas case is before the Court on the Warden’s Renewed Motion to Dismiss
in Light of Glossip v. Gross (ECF No. 246). Turner opposes the Motion (ECF No. 248) and the
Warden has filed a Reply in support (ECF No. 250).
Motions to dismiss involuntarily are "dispositive" within the meaning of 28 U.S.C. §
636(b)(1)(A) and Fed. R. Civ. P. 72, requiring a report of proposed findings and
recommendations for decision from an assigned Magistrate Judge.
The Motion is directed to Turner’s Third Amended Petition (ECF No. 244, “3rd AP”) and
particularly to the lethal injection claims pled therein, which Turner represents as beginning at
Ground for Relief XV. Id. at PageID 10654, n. 1. Those claims are as follows:
Ground XV. Michael Turner’s execution by lethal injection under
Ohio law will violate the Supremacy Clause.
1

Ground XVI. Michael Turner’s execution by lethal injection
under Ohio law will violate the Eighth Amendment because any
drug DRC [Ohio Department of Rehabilitation and Correction] can
procure for use in lethal injections has a substantial, objectively
intolerable risk of causing unnecessary, severe pain, suffering,
degradation, humiliation, and/or disgrace.
Ground XVII. Michael Turner’s execution by lethal injection
under Ohio law will violate the Eighth Amendment because it
causes a lingering death.
Ground XVIII. Michael Turner’s execution by lethal injection
under Ohio law will violate the Eighth Amendment because lack of
legally available, effective drugs to conduct lethal-injection
executions will result in the arbitrary and capricious imposition of
the death penalty.
Ground XIX. Michael Turner’s execution by lethal injection will
be a human experiment on a nonconsenting prisoner in violation of
the Fourteenth Amendment.
Ground XX. Michael Turner’s execution by lethal injection under
Ohio law will violate the Eighth Amendment because the lack of
legally obtainable, effective drugs to conduct lethal-injection
executions will cause psychological torture, pain and suffering.
Ground XXI. Michael Turner’s execution by lethal injection
under Ohio law will violate the Eighth Amendment because of the
substantial, objectively intolerable risk of serious harm due to
DRC’s maladministration of Ohio’s execution protocol.
Ground XXII. Michael Turner’s execution by lethal injection
under Ohio law will violate the Equal Protection Clause of the
Fourteenth Amendment.
Ground XXIII. Michael Turner’s execution by lethal injection
under Ohio law will violate the Due Process Clause of the
Fourteenth Amendment.
Ground XXIV. Michael Turner’s execution by lethal injection
under Ohio law will violate the Eighth Amendment because of his
unique, individual physical and/or mental characteristics.
(3rd AP, ECF No. 244, PageID 10659-60.)
2

Turner acknowledges that the claims in his 3rd Amended Petition were pled pursuant to
Ohio’s January 9, 2015, lethal injection protocol which has now been superseded by a new
protocol filed June 29, 2015, and indicates he will move to amend to reflect that fact once the
instant Motion is decided.
Turner is a co-plaintiff in In re Ohio Lethal Injection Litigation, Case No. 2:11-cv-01016,
a consolidated action by death row inmates under 42 U.S.C. § 1983 pending before District
Judge Frost of this Court. When Turner first moved to amend to add lethal injection claims to
his habeas petition, he acknowledged that fact and stated:
The 1983 litigation now renamed In re Ohio Execution Protocol
Litigation remains ongoing, including extensive document and
deposition discovery. Much of the evidence developed in In re
Ohio Execution Protocol Litigation is relevant to the claims in this
petition, although the claims here are not the same claims as in the
§ 1983 litigation.

(ECF No. 155, PageID 4426.) Thus Turner claims a difference between his claims in habeas and
those in the § 1983 litigation, but does not explain what those differences are.
The Warden’s instant Motion directly challenges this rationale for proceeding
simultaneously in habeas and under 42 U.S.C. § 1983, relying on the Supreme Court’s recent
decision in Glossip v. Gross,

U.S.

, 135 S. Ct. 2726, 192 L. Ed. 2d 761 (2015). In Glossip

Oklahoma death row inmates brought a § 1983 action seeking to enjoin the use of midazolam
(specified at 500 mg.) as the first drug to be administered in a three-drug lethal injection
protocol. As the Supreme Court explains, Oklahoma had previously used the three-drug protocol
(sodium thiopental, a paralytic agent, and potassium chloride) found constitutional by a plurality
of the Court in Baze v. Rees, 553 U.S. 35 (2008). Because sodium thiopental and a substitute,

3

pentobarbital, have become unavailable, Oklahoma substituted midazolam. Glossip was brought
under 42 U.S.C. § 1983 and sought injunctive relief prohibiting the use of a 500 mg. dose of
midazolam in conjunction with the other two drugs. The Supreme Court affirmed the lower
courts' denial of a preliminary injunction on two bases:
For two independent reasons, we also affirm. First, the prisoners
failed to identify a known and available alternative method of
execution that entails a lesser risk of pain, a requirement of all
Eighth Amendment method-of-execution claims. See Baze v. Rees,
553 U. S. 35, 61, 128 S. Ct. 1520, 170 L. Ed. 2d 420 (2008)
(plurality opinion). Second, the District Court did not commit clear
error when it found that the prisoners failed to establish that
Oklahoma's use of a massive dose of midazolam in its execution
protocol entails a substantial risk of severe pain.

135 S. Ct. at 2731.
In the course of reaching these conclusions, the Court made this interpretation of Hill v.
McDonough, 547 U.S. 573 (2006):
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 579580, 126 S. Ct. 2096, 165 L. Ed. 2d 44.

Id. at 2738.
In Adams v. Bradshaw, 644 F.3d 481 (6th Cir. 2011), the circuit court was faced with
Ohio's claim, relying on Hill, that the district court lacked jurisdiction in habeas corpus over a
lethal injection claim. The court held:
The Warden's contention that Hill "holds that a challenge to the
particular means by which a lethal injection is to be carried out is
4

non-cognizable in habeas" is too broad. Nowhere in Hill or Nelson
does the Supreme Court state that a method-of-execution challenge
is not cognizable in habeas or that a federal court "lacks
jurisdiction" to adjudicate such a claim in a habeas action. Whereas
it is true that certain claims that can be raised in a federal habeas
petition cannot be raised in a § 1983 action, see Preiser, 411 U.S.
at 500, it does not necessarily follow that any claim that can be
raised in a § 1983 action cannot be raised in a habeas petition, see
Terrell v. United States, 564 F.3d 442, 446 n.8 (6th Cir. 2009).
Moreover, Hill can be distinguished from this case on the basis
that Adams has not conceded the existence of an acceptable
alternative procedure. See 547 U.S. at 580. Thus, Adams's lethalinjection claim, if successful, could render his death sentence
effectively invalid. Further, Nelson's statement that "method-ofexecution challenges[] fall at the margins of habeas," 541 U.S. at
646, strongly suggests that claims such as Adams's can be brought
in habeas.

Id. at 483. Relying on that language from Adams, this Court has consistently held it has
jurisdiction in habeas over method-of-execution claims. 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 2013).
In the Motion to Dismiss, the Warden argues he has won in Glossip what he lost in
Adams. First he notes the ways in which the Amended Petition attacks the specific lethal
injection protocol Ohio had in place at the time the Third Amended Petition was filed (Motion,
ECF No. 246, PageID 10847). The Warden concludes “if Adams stands for the expansive
proposition that inmates can challenge the specifics of Ohio’s method of execution in habeas
corpus or how it is administered, then it contradicts Glossip, and is overruled.” Id. at PageID
5

10846.

The Warden also relies on Scott v. Houk, 760 F.3d 497 (6th Cir. 2014), and Frazier v.

Jenkins, 770 F.3d 485 (6th Cir. 2014), in both of which the circuit court refused to remand habeas
cases for development of lethal injection claims on the grounds any needed development could
take place in pending § 1983 cases which would adequately protect death row inmates’ interests.
This Court has previously declined to read Scott and Frazier that broadly because they
did not purport to overrule Adams and indeed could not do so since it is a published circuit
opinion. See Tibbetts v. Warden, 2015 U.S. Dist. LEXIS 27066 (S.D. Ohio 2015); Raglin v.
Mitchell, 2014 U.S. Dist. LEXIS 155634 (S.D. Ohio 2014); Turner v. Hudson, 2014 U.S. Dist.
LEXIS 155270 (S.D. Ohio 2014).
Turner opposes the Motion, but makes an important admission:
Nevertheless, the language from Glossip demonstrates that Turner
may have been using imprecise terminology. Turner has used the
terms “method-of-execution claim” and “lethal-injection habeas
claim” interchangeably. Under Glossip it appears that “method-ofexecution” claims refer to §1983 challenges. Turner shall
henceforth more precisely refer to challenges in his petition as
lethal injection habeas claims.

(ECF No. 248, PageID 10861, n.2.)
This Court’s former application of Adams to allow death row inmates such as Turner to
proceed simultaneously in § 1983 and habeas cannot stand in light of Glossip. Putting the label
“lethal injection habeas claims” on whatever claims happen to have been filed in a habeas corpus
case and the label “method-of-execution” claims on whatever claims happen to have been made
in a § 1983 case is not a substitute for analysis. Indeed, Turner acknowledges “the focus must
remain on the substance of the claim and the remedy sought, rather than the name ascribed to it.”
Id. at PageID 10861.
6

The same imprecision of language which Turner concedes he has used in the past is also
present in Adams where the court held that some method-of-execution claims which can be
brought in 1983 can also be brought in habeas. This Court has concluded it can no longer read
Adams that expansively:
Glossip at the very least renders that statement of the law inexact.
Under Glossip's reading of Hill, a method-of-execution claim must
be brought under § 1983 if, but only if, (1) success on the claim
would not invalidate the death sentence and (2) the prisoner can
"identify a known and available alternative method of execution
that entails a lesser risk of pain."

Landrum v. Robinson, 2015 U.S. Dist. LEXIS 116914, *7 (S.D. Ohio 2015).
Turner asserts his currently pled claims are cognizable in habeas corpus because they
“attack the validity of his death sentence, because Turner demonstrates1 that the State cannot
constitutionally execute him using any execution protocol or procedures.”

(ECF No. 248,

PageID 10862.) The relevant language from those claims is as follows:
Ground XV
550) Because under Ohio law DRC may only execute someone by
lethal injection, and all ways in which DRC can possibly procure
drugs and carry out lethal-injection executions contravene federal
law, Michael Turner’s death sentence cannot be carried out legally,
necessarily rendering it an invalid sentence. Michael Turner must
therefore be granted habeas relief from his sentence of death.
3rd AP, ECF No. 244 at PageID 10808.

Ground XVI
611) Because under Ohio law DRC may only execute someone by
lethal injection, and because DRC cannot legally carry out a lethal1

Pleadings rarely “demonstrate” entitlement to relief. The Court reads the word here as synonymous with “asserts”
or “alleges.”

7

injection execution, Michael Turner’s death sentence cannot be
carried out, necessarily rendering it an invalid sentence. Michael
Turner must therefore be granted habeas relief from his sentence of
death.
Id. at PageID 10822.
Ground XVII
635) Because there is no possible DRC lethal-injection Execution
Protocol that would prevent Michael Turner from experiencing a
lingering death, his lethal-injection execution constitutes cruel and
unusual punishment prohibited by the Eighth Amendment.
Id. at PageID 10825.
Ground XVIII
650) Because there is no possible DRC lethal-injection Execution
Protocol that would prevent the death penalty from being imposed
against Michael Turner in an arbitrary and capricious manner, his
lethal-injection execution constitutes cruel and unusual punishment
prohibited by the Eighth Amendment.
651) Because under Ohio law DRC may only execute someone by
lethal injection, Michael Turner’s death sentence cannot be carried
out, necessarily rendering it an invalid sentence. Turner must
therefore be granted habeas relief from his sentence of death.
Id. at PageID 10827-28.
Ground XIX
665) Because there is no possible DRC lethal-injection Execution
Protocol that would not constitute a human experiment without
voluntary consent, using unapproved investigational new drugs
compounded by an ethically compromised pharmacist, the lethalinjection execution of Michael Turner violates the Fourteenth
Amendment. See In re Cincinnati Radiation Litig., 874 F. Supp. at
818.
666) Because under Ohio law DRC may only execute someone by
lethal injection, Michael Turner’s death sentence cannot be carried

8

out, necessarily rendering it an invalid sentence. Michael Turner
must therefore be granted habeas relief from his sentence of death.
Id. at PageID 10830.
Ground XX
670) Because there is no possible DRC lethal-injection Execution
Protocol that would not cause anxiety and anguish, the lethalinjection execution of Michael Turner will violate the Eighth
Amendment.
671) Because under Ohio law DRC may only execute someone by
lethal injection, Michael Turner’s death sentence cannot be carried
out, necessarily rendering it an invalid sentence. Michael Turner
must therefore be granted habeas relief from his sentence of death.
Id. at PageID 10831.
Ground XXI
677) Because there is no possible DRC lethal-injection Execution
Protocol, as written and/or as administered, that would prevent
Michael Turner from experiencing a substantial risk of serious
harm based on DRC’s maladministration of its Execution Protocol
or Turner’s individual characteristics, his lethal-injection execution
constitutes cruel and unusual punishment prohibited by the Eighth
Amendment.
678) Because under Ohio law DRC may only execute someone by
lethal injection, Michael Turner’s death sentence cannot be carried
out, necessarily rendering it an invalid sentence. Michael Turner
must therefore be granted habeas relief from his sentence of death.
Id. at PageID 10832-33.
Ground XXII
698) In sum, DRC’s pattern and ongoing history of noncompliance
with § 2949.22(A) and (C) and the Execution Protocols is
irrational and/or unrelated to any conceivable legitimate State
interest. It is also not narrowly tailored and necessary to carrying
out a compelling State interest.

9

699) Because DRC intentionally and arbitrarily treats each
condemned inmate differently and such disparate treatment is not
rationally related to a legitimate, compelling state interest, and
because DRC’s protocol noncompliance substantially burdens
Turner’s fundamental rights, regardless of the lethal-injection
Execution Protocol in place, the lethal-injection execution of
Michael Turner violates his Fourteenth Amendment right to equal
protection as a class of one and as member of the group of
individuals whose fundamental rights are burdened.
700) Because under Ohio law DRC may only execute someone by
lethal injection, Michael Turner’s death sentence cannot be carried
out, necessarily rendering it an invalid sentence. Michael Turner
must therefore be granted habeas relief from his sentence of death.
Id. at PageID 10836.
Ground XXIII
706) Because there is no possible DRC lethal-injection Execution
Protocol that would prevent the denial of Turner’s interests in
expecting and receiving a quick and painless death, his lethalinjection execution constitutes a denial of his rights to due process
guaranteed by the Fourteenth Amendment.
707) Because under Ohio law DRC may only execute someone by
lethal injection, Michael Turner’s death sentence cannot be carried
out, rendering it an invalid sentence. Michael Turner must
therefore be granted habeas relief from his sentence of death.
Id. at PageID 10837.
Ground XXIV
714) Michael Turner’s lethal-injection execution will violate the
Eighth and Fourteenth Amendments due to his unique physical and
mental characteristics.
715) Because under Ohio law DRC may only execute someone by
lethal injection, Michael Turner’s death sentence cannot be carried
out, rendering it an invalid sentence. Michael Turner must
therefore be granted habeas corpus relief with respect to his death
sentence.

10

Id. at PageID 10839.
As to each relevant Ground for Relief, Turner has claimed that finding in his favor would
result in invalidation of his death sentence. When the assertions behind these conclusions are
read, however, it is not clear that the required distinction between habeas and § 1983 claims is
maintained. In his lengthy “Factual and Procedural Background for Lethal Injection Claims,”
Turner discusses the current status of lethal injection executions and problems with carrying
them out in ways that suggest he is about to plead method-of-execution claims (ECF No. 244,
PageID 10772-10807). In Ground for Relief XV, just to take the first lethal injection claim, he
uses language that suggests seeking injunctive relief and expected or ongoing State conduct. For
example, at ¶ 542 he complains that Ohio lethal injection executions “as administered” violate
the Supremacy Clause. Id. at PageID 10807. At ¶ 545 he complains of the Ohio Department of
Rehabilitation and Correction’s “practice” in carrying out executions. Id. At ¶ 549 he pleads the
risk that drugs hereafter acquired for lethal injections will have deleterious effects. Id. at
PageID 10808.

Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Third Amended
Petition be dismissed without prejudice for failure to plead a claim cognizable in habeas corpus
with sufficient clarity to distinguish it from the claims Turner has made in In re Ohio Lethal
Injection Protocol Litig. Turner is granted leave to move to file a fourth amended petition not
later than September 30, 2015, relating his claims to the Ohio lethal injection protocol adopted

11

June 29, 2015, and showing clearly the distinction from any parallel claims being made in the
Lethal Injection Protocol case.2

September 9, 2015.
s/ Michael R. Merz
United States Magistrate Judge

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).

2

When the claims are re-pled, the Court pleads with counsel to avoid the clumsy neologism “LI-habeas claims.”
Distinction might be made between “lethal injection validity claims” in habeas and “lethal injection method claims”
in § 1983.

12

13