In Re: Ohio Execution Protocol Litigation

Filing 1088

DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS - Defendants' Motion to Dismiss the Fourth Amended Complaints of Plaintiffs Tibbetts and Otte is GRANTED IN PART AND DENIED IN PART. In each case where a Cause of Action was dismissed, the Court has acted under Fed. R. Civ. P. 12(b)(6). It has not found any claim made by Plaintiffs to be so insubstantial as to deprive it of subject matter jurisdiction. Signed by Magistrate Judge Michael R. Merz on 7/12/2017. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
In re: OHIO EXECUTION
PROTOCOL LITIGATION,

:

Case No. 2:11-cv-1016
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Michael R. Merz

This Order relates to Plaintiffs
Tibbetts and Otte

DECISION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS’ MOTION TO DISMISS

This case is before the Court on Motion of Defendants Kasich, Mohr, Erdos, Morgan,
Gray, Vorhies, Theodore, Jenkins, Coleman, and the un-named and anonymous execution team
members (“Moving Defendants”) to dismiss in part Plaintiffs’ Fourth Amended and
Supplemental Complaints (ECF No. 691 as to Mr. Tibbetts; ECF No. 695 as to Mr. Otte) and the
Joint Ohio Corrupt Practice Act (“OCPA”) Supplement to Tibbetts’ and Otte’s Fourth Amended
Complaints (ECF No. 954). The Motion is filed at ECF No. 981; Plaintiffs’ Memorandum in
Opposition is at ECF No. 1018; Defendants Reply is at ECF No. 1033.
The Moving Defendants1 seek dismissal under Fed. R. Civ. P. 12(b)(1) and 12(b)(6) or,
in the alternative, judgment on the pleadings under Fed. R. Civ. P. 12(c). The Motion is

1

Counsel for the Moving Defendants do not represent any of the other parties in the case, none of whom have yet
been identified or served with process. Therefore the Motion is made only on behalf of the Moving Defendants.

1

therefore a “dispositive” motion within the meaning of Fed. R. Civ. P. 72. However, these two
Plaintiffs and the Defendants as respects these two Plaintiffs have unanimously consented to
plenary magistrate judge jurisdiction under 28 U.S.C. § 636(c)(ECF No. 734).

Subject Matter Jurisdiction

Defendants seek dismissal on the grounds this Court lacks subject matter jurisdiction of
the controversy.
Because federal courts are courts of limited jurisdiction, they are empowered to hear only
those cases which are within the judicial power of the United States as defined in the United
States Constitution and as further granted to them by Act of Congress. Finley v. United States,
490 U.S. 545, 550 (1989); Aldinger v. Howard, 427 U.S. 1, 15 (1976). Therefore there is a
presumption that a federal court lacks jurisdiction until it has been demonstrated. Turner v.
President, Directors and Co. of the Bank of North America, 4 U.S. 8 (1799). Facts supporting
subject matter jurisdiction must be affirmatively pleaded by the person seeking to show it.
Bingham v. Cabot, 3 U.S. 382 (1798). The burden of proof is on the party asserting jurisdiction
if it is challenged. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182-83 (1936). A
federal court is further obliged to note lack of subject matter jurisdiction sua sponte. Louisville &
Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908); Capron v. Van Noorden, 6 U.S. 126
(1804); Answers in Genesis of Ky., Inc. v. Creation Ministries Int’l, Ltd., 556 F.3d 459, 465 (6th
Cir. 2009); Clark v. United States, 764 F.3d 653 (6th Cir. 2014).
The burden of persuasion on a Rule 12(b)(1) motion is on the party asserting jurisdiction.
Thomson v. Gaskill, 315 U.S. 442 (1942); Moir v. Greater Cleveland Regional Transit Authority,

2

895 F.2d 266 (6th Cir. 1990); 5A Wright and Miller, Federal Practice and Procedure, Civil 2d
§1350 (1990).
A facial attack is proper under rule 12(b)(1) and requires the Court to assume the truth of
all allegations made by a plaintiff. DLX, Inc., v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004),
citing RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1133-35 (6th Cir. 1996);
United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994); and Ohio Nat'l Life Ins. Co. v. United
States, 922 F.2d 320, 325 (6th Cir. 1990).
"Because at issue in a factual [as opposed to facial] 12(b)(1) motion is the trial court's
jurisdiction -- its very power to hear the case -- there is substantial authority that the trial court is
free to weigh the evidence and satisfy itself as to the existence of its power to hear the case."
Mortensen v. First Federal Savings and Loan Ass'n., 549 F.2d 884, 890 (3rd Cir. 1977), quoted in
RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125 (6th Cir. 1996); Rogers v. Stratton
Industries, Inc., 798 F.2d 913 (6th Cir. 1986).
The Court reads the Motion to Dismiss as raising a facial as opposed to a factual
objection to subject matter jurisdiction. Moving Defendants argue that Plaintiffs’ claims are “so
insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely
devoid of merit as to not involve a federal controversy.” (Motion, ECF No. 981, PageID 3699937000, quoting Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 (1998), quoting in
turn Oneida Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661, 666 (1974).) Plaintiffs do
not respond to Defendants’ Fed. R. Civ. P. 12(b)(1) argument.
In Steel Co., the Court rejected the practice of some lower courts of assuming jurisdiction
and deciding a case’s merits as violating the jurisdictional limits of Article III. Although they

3

lacked Article III standing, the Citizens Assn. had pleaded a sufficiently substantial claim to
satisfy that jurisdictional requirement. The Court held
It is firmly established in our cases that the absence of a valid (as
opposed to arguable) cause of action does not implicate subjectmatter jurisdiction, i.e., the courts' statutory or constitutional power
to adjudicate the case. See generally 5A C. Wright & A. Miller,
Federal Practice and Procedure § 1350, p. 196, n. 8 and cases cited
(2d ed. 1990). As we stated in Bell v. Hood, 327 U.S. 678, 682, 90
L. Ed. 939, 66 S. Ct. 773 (1946), "jurisdiction . . . is not defeated . .
. by the possibility that the averments might fail to state a cause of
action on which petitioners could actually recover." Rather, the
District Court has jurisdiction if "the right of petitioners to recover
under their complaint will be sustained if the Constitution and laws
of the United States are given one construction and will be
defeated if they are given another," id., at 685, unless the claim
"clearly appears to be immaterial and made solely for the purpose
of obtaining jurisdiction or where such a claim is wholly
insubstantial and frivolous." Id., at 682-683; see also Bray v.
Alexandria Women's Health Clinic, 506 U.S. 263, 285, 122 L. Ed.
2d 34, 113 S. Ct. 753 (1993); The Fair v. Kohler Die & Specialty
Co., 228 U.S. 22, 25, 57 L. Ed. 716, 33 S. Ct. 410 (1913).
Dismissal for lack of subject-matter jurisdiction because of the
inadequacy of the federal claim is proper only when the claim is
"so insubstantial, implausible, foreclosed by prior decisions of this
Court, or otherwise completely devoid of merit as not to involve a
federal controversy." Oneida Indian Nation of N. Y. v. County of
Oneida, 414 U.S. 661, 666, 39 L. Ed. 2d 73, 94 S. Ct. 772 (1974);
see also Romero v. International Terminal Operating Co., 358
U.S. 354, 359, 3 L. Ed. 2d 368, 79 S. Ct. 468 (1959).
523 U.S. at 89.

Certainly some if not all of Plaintiffs’ claims are arguable under the

Constitution. There is thus federal question jurisdiction over this case – a claim, for example,
that a method of execution violates the Eighth Amendment is plainly cognizable in a proceeding
under 42 U.S.C. § 1983. See Nelson v. Campbell, 541 U.S. 637 (2004), and Hill v. McDonough,
547 U.S. 573 (2006). Defendants’ general subject-matter jurisdiction defense is rejected. Their

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Eleventh Amendment immunity defense (Motion, ECF No. 981, PageID 37000-002) is
considered below with the relevant Causes of Action.

Cognizability

Moving Defendants seek dismissal under Fed. R. Civ. P. 12(b)(6) or judgment on the
pleadings under Fed. R. Civ. P. 12(c) on the ground that many of Plaintiffs’ Causes of Action do
not state a claim upon which relief can be granted. The parties agree the same standard of
cognizability applies under both Rules. See Tucker v. Middleburg-Legacy Place, 539 F.3d 545,
549 (6th Cir. 2008); EEOC v. J. H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir. 2001).
“The purpose of a motion under Rule 12(b)(6) is to test the formal sufficiency of the
statement of the claim for relief; it is not a procedure for resolving a contest about the facts or
merits of the case.” Wright & Miller, FEDERAL PRACTICE AND PROCEDURE: Civil 2d §1356 at
294 (1990); see also Gex v. Toys “R” Us, 2007 U.S. Dist. LEXIS 73495, *3-5 (S.D. Ohio, Oct.
2, 2007); Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993), citing Nishiyama v. Dickson
County, Tennessee, 814 F.2d 277, 279 (6th Cir. 1987). Stated differently, a motion to dismiss
under Fed.R.Civ.P. 12(b)(6) is designed to test the sufficiency of the complaint. Riverview
Health Institute LLC v. Medical Mutual of Ohio, 601 F.3d 505, 512 (6th Cir. 2010).
The test for dismissal under Fed. R. Civ. P. 12(b)(6) has been re-stated by the Supreme
Court:
Factual allegations must be enough to raise a right to relief above
the speculative level, see 5 C. Wright & A. Miller, Federal
Practice and Procedure § 1216, pp. 235-236 (3d ed.2004)(“[T]he
pleading must contain something more ... than ... a statement of
facts that merely creates a suspicion [of] a legally cognizable right
of action”), on the assumption that all the allegations in the
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complaint are true (even if doubtful in fact), see, e.g., Swierkiewicz
v. Sorema N. A., 534 U.S. 506, 508, n. 1, 122 S.Ct. 992, 152
L.Ed.2d 1 (2002); Neitzke v. Williams, 490 U.S. 319, 327, 109
S.Ct. 1827, 104 L.Ed.2d 338 (1989)(“Rule 12(b)(6) does not
countenance ... dismissals based on a judge's disbelief of a
complaint's factual allegations”); Scheuer v. Rhodes, 416 U.S. 232,
236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (a well-pleaded
complaint may proceed even if it appears “that a recovery is very
remote and unlikely”).
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
[W]hen the allegations in a complaint, however true, could not raise a
claim of entitlement to relief, “‘this basic deficiency should ... be
exposed at the point of minimum expenditure of time and money by the
parties and the court.’” 5 Wright & Miller § 1216, at 233-234 (quoting
Daves v. Hawaiian Dredging Co., 114 F. Supp. 643, 645 (D. Hawaii
1953) ); see also Dura [Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336,
125 S.Ct. 1627, 161 L.Ed.2d 577 (2005)], at 346, 125 S.Ct. 1627, 161
L. Ed. 2d 577; Asahi Glass Co. v. Pentech Pharmaceuticals, Inc ., 289
F. Supp. 2d 986, 995 (N.D.Ill.2003) (Posner, J., sitting by designation)
(“[S]ome threshold of plausibility must be crossed at the outset before a
patent antitrust case should be permitted to go into its inevitably costly
and protracted discovery phase”).

Twombly, 550 U.S. at 558 (overruling Conley v. Gibson, 355 U.S. 41, 45-46 (1957), and
specifically disapproving of the proposition from Conley that “a complaint should not be
dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to relief”); see also Association of
Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545 (6th Cir. 2007). In Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009), the Supreme Court made it clear that Twombly applies in all
areas of federal law and not just in the antitrust context in which it was announced.
“[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
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will not do.” Twombly, 550 U.S. at 555, citing Papasan v. Allain, 478 U.S. 265, 286 (1986)(on a
motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a factual
allegation.”)
To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to "state a claim to relief that is
plausible on its face." [Twombly], at 570, 127 S. Ct. 1955, 167 L. Ed.
2d 929. A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. Id., at 556, 127 S. Ct.
1955, 167 L. Ed. 2d 929. The plausibility standard is not akin to a
"probability requirement," but it asks for more than a sheer possibility
that a defendant has acted unlawfully. Ibid. Where a complaint pleads
facts that are "merely consistent with" a defendant's liability, it "stops
short of the line between possibility and plausibility of 'entitlement to
relief.'" Id., at 557, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (brackets
omitted).
Two working principles underlie our decision in Twombly. First, the
tenet that a court must accept as true all of the allegations contained in
a complaint is inapplicable to legal conclusions. Threadbare recitals of
the elements of a cause of action, supported by mere conclusory
statements, do not suffice. Id., at 555, 127 S. Ct. 1955, 167 L. Ed. 2d
929 (Although for the purposes of a motion to dismiss we must take all
of the factual allegations in the complaint as true, we "are not bound to
accept as true a legal conclusion couched as a factual allegation"
(internal quotation marks omitted)). Rule 8 marks a notable and
generous departure from the hyper-technical, code-pleading regime of a
prior era, but it does not unlock the doors of discovery for a plaintiff
armed with nothing more than conclusions. Second, only a complaint
that states a plausible claim for relief survives a motion to dismiss. Id.,
at 556, 127 S. Ct. 1955, 167 L. Ed. 2d 929. Determining whether a
complaint states a plausible claim for relief will, as the Court of
Appeals observed, be a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense. 490 F.3d at
157-158. But where the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has

7

alleged -- but it has not "show[n]" -- "that the pleader is entitled to
relief." Fed. Rule Civ. Proc. 8(a)(2).
In keeping with these principles a court considering a motion to dismiss
can choose to begin by identifying pleadings that, because they are no
more than conclusions, are not entitled to the assumption of truth.
While legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations. When there are wellpleaded factual allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an entitlement to
relief.
Iqbal, 556 U.S. at 678; see also Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir. 2008), citing
League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007)(stating
allegations in a complaint “must do more than create speculative or suspicion of a legally
cognizable cause of action; they must show entitlement to relief”); see further Delay v. Rosenthal
Collins Group, LLC, 585 F.3d 1003, 1005 (6th Cir. 2009); Tam Travel, Inc. v. Delta Airlines, Inc.
(In re Travel Agent Comm’n Antitrust Litig.), 583 F.3d 896, 903 (6th Cir. 2009); New Albany
Tractor v. Louisville Tractor, 650 F.3d 1046 (6th Cir. 2011) (holding a plaintiff is not entitled to
discovery to obtain the necessary plausible facts to plead.)
Under Iqbal, a civil complaint will only survive a motion to dismiss if it “contain[s]
sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. . .
. Exactly how implausible is "implausible" remains to be seen, as such a malleable standard will
have to be worked out in practice.” Courie v. Alcoa Wheel & Forged Prods., 577 F.3d 625, 629630 (6th Cir. 2009).
For purposes of the motion to dismiss, the complaint must be construed in the light most
favorable to the plaintiff and its allegations taken as true. Scheuer v. Rhodes, 416 U.S. 232
(1974); Westlake v. Lucas, 537 F.2d 857 (6th Cir. 1976); Craighead v. E.F. Hutton & Co., 899
F.2d 485 (6th Cir. 1990). A pro se litigant is entitled to liberal construction of his or her
8

pleadings. Haines v. Kerner, 404 U.S. 519 (1972); Urbina v. Thoms, 270 F.3d 292, 295 (6th Cir.
2001). To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), “a ... complaint must
contain either direct or inferential allegations respecting all the material elements to sustain a
recovery under some viable legal theory.” Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d
434, 436 (6th Cir. 1988); followed Allard v. Weitzman (In re DeLorean Motor Co.), 991 F.2d
1236 (6th Cir. 1993); Columbia Natural Resources, Inc. v. Tatum, 58 F.3d 1101 (6th Cir. 1995).
The Court “need not accept as true legal conclusions or unwarranted factual inferences.”
Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). Bare assertions of legal
conclusions are not sufficient. Rondigo L.L.C. v. Twp. of Richmond, 641 F.3d 673, 684 (6th Cir.
2011); Hensley Mfg. v. ProPride, Inc., 579 F.3d 603 (6th Cir. 2009); Lillard v. Shelby County Bd.
of Educ., 76 F.3d 716, 726 (6th Cir. 1996); Sogevalor, S.A. v. Penn Central Corp., 771 F. Supp.
890, 893 (S.D. Ohio 1991). It is only well-pleaded facts which are construed liberally in favor of
the party opposing the motion to dismiss. Id., citing Scheuer v. Rhodes, 416 U.S. 232, 236
(1974); see also Wright & Miller, FEDERAL PRACTICE AND PROCEDURE: Civil 2d §1357 at 311318 (1990).
A court “need not accept as true legal conclusions or unwarranted factual inferences and
conclusory allegations or legal conclusions masquerading as factual allegations will not suffice.”
Terry v. Tyson Farms, Inc., 604 F.3d 272, 275-76 (6th Cir. 2010). “[A] formulaic recitation of
the elements of a cause of action will not do.” Republic Bank & Trust Co. v. Bear Stearns & Co.,
Inc., 683 F.3d 239, 246-47 (6th Cir. 2012)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)).

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Analysis

Moving Defendants seek dismissal only of certain claims made by Plaintiffs. Those
claims are discussed seriatim below.

First Cause of Action2

Withdrawn from Fourth Amended Complaint (ECF No. 691, PageID 20273-74).

Second Cause of Action

Plaintiffs’ Second Cause of Action alleges violation of the Due Process Clause of the
Fourteenth Amendment as follows:
999. As to each of the Due Process Clause violations alleged
below, Plaintiff incorporates by reference each and every statement
and allegation set forth throughout this Fourth Amended
Complaint as if fully rewritten here.
1000. An execution carried out using the drugs contemplated in the
Execution Protocol will not be “quick,” nor will it be “painless,”
physically and/or mentally.
1001. Defendants are aware that an execution using the Execution
Protocol will almost certainly take more than thirty minutes
2

Pleading claims as “causes of action” was replaced in 1938 by “claims for relief.” Fed. R. Civ. P. 8(a).
Nonetheless, many plaintiffs’ counsel continue to use the phrase “cause of action.” It took the British Navy almost
200 years after it was learned that citrus would prevent scurvy to institute the practice of distributing limes to its
sailors. The British Board of Trade took another seventy years to introduce the practice in the merchant marine.
See Everett M. Rogers, DIFFUSION OF INNOVATIONS (5th ed.2003) at 7-8.

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following the injection of the execution drugs until the inmate is
dead in accordance with Ohio law set forth in Ohio Revised Code
§ 2108.40, but they willingly and knowingly disregard this risk.
1002. Defendants are aware than an execution using the Execution
Protocol will produce a lingering death as the condemned inmate
slowly suffocates to death or suffers a heart attack over a period
that is likely to be 10-15 minutes or more, but they willingly and
knowingly disregard this risk.
1003. Defendants are aware that an execution using intravenously
injected paralytic drug and/or potassium chloride will subject the
condemned inmate to searing, unconstitutionally painful burning
sensations upon injection if the inmate has not been sufficiently
rendered unaware and unable to feel and experience pain, and they
are aware of the significant risk/certainty that midazolam is
incapable of doing just that, but they willingly and knowingly
disregard those risks.
1004. Defendants are aware that an execution using improperly
compounded drug(s) will subject the condemned inmate to painful
burning sensations upon injection intravenously, and they are
aware of the significant risk of obtaining improperly compounded
drug(s) to use in an execution, but they willingly and knowingly
disregard this risk.
1005. Defendants are aware that at least a not-insignificant number
of Plaintiffs, including Plaintiff here, possess individual
mental/psychological conditions and characteristics which make
such them substantially likely to suffer from a paradoxical effect
upon injection of the Execution Protocol’s drugs, but Defendants
willingly and knowingly disregard this risk.
1006. DRC Defendants have created, maintained, and administered
an overarching execution policy and written Execution Protocol
that, if used to execute Plaintiff’s death sentence, will violate his
constitutionally protected liberty, life, and property interests (as
arising from Ohio Rev. Code § 2949.22(A) and DRC Policy 01COM-11) in expecting and receiving a “quick and painless death”
and/or a humane and dignified execution.
11

1007. Ohio Revised Code § 2949.22(A) creates valid liberty, life,
and property interests vested in Plaintiff in expecting a “quick and
painless” death.
1008. Ohio Revised Code § 2949.22(A) also creates valid liberty,
life, and property interests vested in Plaintiff in receiving a “quick
and painless” death.
1009. DRC Policy 01-COM-11 is binding state law, and creates
valid liberty, life, and property interests vested in Plaintiff in
expecting a humane and dignified death.
1010. DRC Policy 01-COM-11 is binding state law, and creates
valid liberty, life, and property interests vested in Plaintiff in
receiving a humane and dignified death.
1011. These interests are rights vested in a small class of
individuals that have a legitimate claim of entitlement to expect
and receive a quick, painless, humane and dignified death.
1012. Plaintiff, as a death row inmate, is a member of the only
group that is the intended beneficiary of these guarantees.
1013. Under the express terms of § 2949.22(A) and DRC Policy
01-COM-11, Defendants have no discretion in whether to provide
a quick, painless, humane and dignified death to Plaintiff or some
kind of death other than a quick, painless, humane and dignified
one.
1014. These interests arising under state law are protected as rights
under the substantive and procedural elements of the Due Process
Clause of the Fourteenth Amendment.
1015. Having granted Plaintiff interests in expecting and receiving
a quick, painless, humane and dignified execution, Defendants
may not deprive him of those rights in violation of procedural and
substantive due process under the Fourteenth Amendment.

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1016. Defendants’ denial of Plaintiff’s rights to expect and receive
a quick, painless, humane and dignified death is arbitrary and
conscience-shocking.
1017. The pattern of deviations and/or variations from Defendants’
execution policy and written Execution Protocol engaged in by
many of the actors involved, intentional or otherwise, combined
with the amount of discretion that Defendants claim under their
overarching execution policy and under the written protocol, along
with substantial evidence of incompetence or inability to perform
in the execution context, cumulatively point to an unacceptable
risk of violating Plaintiff’s rights.
1018. DRC Defendants’ most recent discretionary, and
unconscionable, choice to resurrect an even worse version of the
original three-drug method for use in their Execution Protocol,
after renouncing that method in November 2009 and representing
that it would never be used again, and after discarding midazolam
after three highly publicized botched executions using that drug, is
only the latest, and perhaps most egregious, of the many of
deviations and/or variations they have made. In making those
representations in November 2009, DRC Defendants assured the
Court, the Sixth Circuit, the public, and the Plaintiffs that the
paralytic drug and potassium chloride would not be used in Ohio
executions going forward. They also knowingly rejected any
further use of midazolam as an execution drug. Those drugs, in
other words, shall no longer be among the drugs authorized by the
execution policy, and their use would thus be a violation of Core
Element # 2.
1019. Yet now, seven years later, and in order to expeditiously
execute at least three of Plaintiffs, DRC Defendants have
intentionally deviated from those binding representations, and have
rewritten the policy to “authorize” the use of the very drugs DRC
Defendants had previously renounced, as more fully alleged earlier
throughout this Fourth Amended Complaint.
1020. Defendants manifest deliberate indifference towards, or
intentional deprivation of, Plaintiff’s statutorily created liberty,
life, and property interests in expecting and receiving a quick,
13

painless, humane and dignified death, interests protected as rights
by the substantive and procedural elements of the Fourteenth
Amendment’s Due Process Clause in the following ways:
by what DRC Defendants include and exclude from their
overarching execution policy;
by their procedures and considerations for development of the
written Execution Protocol;
by their discretionary and faulty administration of the execution
policy and the Execution Protocol; and
by their willingness to shade or color the official record to keep
secret critical details about an execution and those who acted
outside the law to facilitate it.
1021. Matters that DRC Defendants include or exclude from their
overarching execution policy include, but are not limited to, the
following:
Defendants’ contemplated use of execution drugs they had
previously renounced or rejected for good cause
Defendants’ contemplated use of execution drugs manufactured
and/or otherwise supplied by the Drug Source Defendants using
compounding or illegally imported or otherwise sourced drugs;
Defendants’ intended use of the specific drugs in the Execution
Protocol despite their knowledge of the risks those drugs create;
Defendants’ continued refusal to adequately prepare for and
provide medical assistance as necessary in the execution context,
even with full notice of that necessity.
1022. Plaintiff’s statutorily created liberty, life, and property
interests in expecting and receiving a quick, painless, humane and
dignified death that are protected as rights are separate and distinct
from the rights protecting Plaintiff against cruel and unusual
punishment as provided in the Eighth Amendment.
14

1023. In all the foregoing ways, Defendants violate 42 U.S.C. §
1983 and Plaintiff’s rights protected by the Fourteenth Amendment
to the United States Constitution.
(Fourth Amended Complaint, ECF No. 691, PageID 20273-79; ECF No. 695, PageID 20959-63.)
Moving Defendants assert this Second Cause of Action is foreclosed by controlling
precedent (Motion, ECF No. 981, PageID 37003-04, citing Cooey v Strickland, 2010 U.S. Dist.
LEXIS 81841 (S.D. Ohio Aug 12, 2010)(Frost, J.)). Judge Frost in turn relied on Reynolds
(Brown) v. Strickland, 363 Fed. Appx. 394 (6th Cir. 2010); Reynolds v. Strickland, 598 F.3d 300
(6th Cir. 2010); and Cooey (Biros) v. Strickland, 589 F.3d 210 (6th Cir. 2009). Defendants also
rely on Cooey (Beuke) v. Strickland, 604 F.3d 939 (6th Cir. 2010).
Plaintiffs acknowledge that Cooey (Biros) rejected a parallel claim in that case that Ohio
Revised Code § 2949.22(A) created a life, liberty, or property interest protectable under the Due
Process Clause of the Fourteenth Amendment (Memo Opp., ECF No. 1018, PageID 29680).
They argue that “Cooey (Biros) and its progeny were wrongly decided . . . .” Id.
Because Cooey (Biros) is a published decision of the Sixth Circuit, it is binding on this
Court in the absence of an en banc reversal or a Supreme Court decision to the contrary. United
States v. Elbe, 774 F.3d 885, 891 (6th Cir. 2014); Darrah v. City of Oak Park, 255 F.3d 301, 309
(6th Cir. 2001); Salmi v. Secretary of HHS, 774 F.2d 685, 689 (6th Cir. 1985); accord 6th Cir. R.
206(c). There has been neither.
Plaintiffs note that the “second part of [their] Second Causes of Action alleged Due
Process Clause violations related to the denial of state-created life, liberty [,] and property
interests in expecting and receiving a humane and dignified execution” which they say does not
depend on Ohio Revised Code § 2949.22(A)(Memo Opp., ECF No. 1018, PageID 39686). They

15

assert the Motion to Dismiss as to the “’humane and dignified’ rights-creating language” should
be denied.
Although not cited in the Memorandum in Opposition, the Fourth Amended Complaint
cites Ohio’s execution policy, Policy 01-COM-11, as requiring “that all execution processes
must be performed in a professional, humane, sensitive, and dignified manner.” (ECF No. 691,
PageID 20047, ¶ 78.) It later claims that this Policy creates “constitutionally protected liberty,
life, and property interests. . . .” Id. at PageID 20275, ¶¶ 1006, 1009-1010. Defendants reply
that this amounts to a mere “artful parsing” of the claim because, under Cooey (Biros)
“Defendants’ execution policy does not create any individually enforceable rights.” (Reply, ECF
No. 1033, PageID 40378.)
Although Cooey (Biros) did not address the claim made here for constitutional protection
of a right to a humane and dignified execution, it did address the parallel claim of a
constitutionally protected right to a quick and painless death embodied in Ohio Revised Code §
2949.22(A). Rejecting that claim, the Sixth Circuit wrote:
We are not persuaded by Biros's assertion that § 2949.22 creates a
federal right because the statute creates "liberty and property
interests in a 'quick and painless execution'" protected by the
substantive component of the Due Process Clause of the
Fourteenth Amendment. R. 610 at 9. Biros is unlikely to show that
the reach of any such right extends beyond the incorporation of the
Eighth Amendment.

589 F.3d at 234. While the conclusion is summary, there is no reason why its logic would not
extend to a claim of rights created by the Execution Protocol.
Aside from the Cooey (Biros) precedent, Plaintiffs’ argument is unpersuasive. First of
all, the notion of having a property interest in a humane and dignified execution is completely

16

foreign to § 1983 jurisprudence. One can have a property interest in certain government benefits
which is protected by procedural due process, but it is difficult to conceptualize an execution as
something in which one could have a property interest.
A liberty or life interest is easier to conceptualize under these circumstances. The logic
appears to be that, since the Execution Protocol creates a duty, there must be a correlative right.
Plaintiffs’ cite Chief Justice Brown’s reliance in his dissent in Scott v. Houk, 127 Ohio St. 3d 317
(2010), on Wesley Newcomb Hohfeld’s Some Fundamental Legal Conceptions as Applied in
Judicial Reasoning, 23 Yale L. J. 16 (1913). Influential as Hohfeld’s work has been in general
jurisprudence and particularly the right-duty correlation, it has never been constitutionalized.
That is, so far as the undersigned is aware, neither the Sixth Circuit nor the Supreme Court has
used the right-duty correlation to infer generally the existence of a state-created right protected
under § 1983 from the existence of a state-created duty. Indeed, the logic of recent Supreme
Court decisions cuts in the opposite direction. See Town of Castle Rock v. Gonzales, 545 U.S.
748 (2005).
In sum, the Court agrees with Defendants that Ohio’s Execution Protocol does not create
a right to a humane and dignified execution which is enforceable in a § 1983 action. The Second
Causes of Action are therefore ordered DISMISSED for failure to state a claim upon which relief
can be granted.

Third Cause of Action

These Causes of Action were withdrawn in the Fourth Amended Omnibus Complaint
(ECF No. 691, PageID 20279).

17

Fourth Cause of Action

Plaintiffs’ Fourth Cause of Action pleads claims under the Equal Protection Clause
(Fourth Amended Complaint (Tibbetts), ECF No. 691, PageID 20279-321); (Otte, ECF No. 695,
PageID 20964-998).
Defendants’ Motion to Dismiss the Fourth Causes of Action is DENIED on the basis of
the law of the case cited in Plaintiffs’ Memorandum in Opposition.

Fifth Cause of Action

In their Fifth Causes of Action, Plaintiffs Tibbetts and Otte seek to redress “violations of
fundamental rights arising under the principles of liberty and/or natural law which are protected
by the Ninth Amendment.” (Fourth Amended Complaint (Tibbetts), ECF No. 691, PageID
20321, et seq.); (Otte, ECF No. 695, PageID 20998 et seq.).
Defendants assert the Fifth Causes of Action should be dismissed on the basis of
controlling precedent (Motion, ECF No. 981, PageID 37015-16).
Plaintiffs respond that they are not claiming rights arising from the Ninth Amendment
itself but
fundamental but unenumerated rights arising from the principles of
liberty and natural law, such as the right to privacy, the right to
personal dignity, the right to bodily integrity, his right to not be the
unwilling subject of forced, involuntary human experimentation
conducted by Defendants, and others inherent in the concepts of
liberty and/or natural law.
(Memo Opp., ECF No. 1018, PageID 39716.)

18

The Court agrees with Defendants that the Fifth Cause of Action is precluded by the
Sixth Circuit’s decision in Gibson v. Matthews, 926 F.2d 532 (6th Cir. 1991). While Plaintiffs
offer a technical distinction in that the rights they assert are not claimed to arise directly from the
Ninth Amendment, 42 U.S.C. § 1983 provides procedural due process protection for rights either
created directly by the Constitution or for life, liberty, or property interests created by state law,
not by natural law or the “concept of liberty.”
The Fifth Causes of Action are DISMISSED for failure to state a claim upon which relief
can be granted under 42 U.S.C. § 1983.

Sixth Cause of Action

Plaintiffs’ Sixth Causes of Action assert violations of the First Amendment in the
restrictions placed on the length and content of their last statements:
1200. As to each of the constitutional violations alleged below,
Plaintiff incorporates by reference each and every statement and
allegation set forth throughout this Fourth Amended Complaint as
if fully rewritten here.
1201. Defendants’ written protocol places restrictions on the length
and content of an inmate’s last statement, and those restrictions are
not necessary or the least restrictive means to achieve a
governmental interest.
1202. The restrictions will have a chilling effect on an inmate’s
expressive speech because the written protocol gives the Warden
discretionary but unguided authority to impose restrictions on the
length of an inmate’s last statement, and to terminate a statement
based on content, i.e., to terminate a statement if the Warden
subjectively believes it is intentionally offensive to others, without
any further explanation on how those restrictions are to be applied.

19

1203. Plaintiff has a fundamental right protected by the First
Amendment, the Ninth Amendment, and the Fourteenth
Amendment to the federal constitution to make a final statement
free of the restrictions contained in Defendants’ written protocol.
1204. The restrictions in Defendants’ written protocol related to an
inmate’s last words violate well-established First Amendment
prohibitions on content-based discrimination in regulating speech.
1205. The restrictions in Defendants’ written protocol related to an
inmate’s last words violate well-established First Amendment
prohibitions related to the public forum and/or limited public
forum doctrines.
1206. The restrictions in the written protocol related to an inmate’s
last words discriminate against an inmate’s expressive speech on
the basis of viewpoint, because the Warden may impose
restrictions the Warden subjectively believes to be intentionally
offensive.
1207. The restrictions in the written protocol related to an inmate’s
last words are not reasonable in light of the purpose of an
execution, and Plaintiff is provided no alternative way to
communicate the entirety of his last words if the Warden restricts
Plaintiff’s speech.
1208. There are no governmental interests to justify the restrictions
on an inmate’s expressive speech provided in the written protocol.
1209. The written protocol, facially and as applied to him, violates
Plaintiff’s freedom of speech rights protected by the First, Ninth
and Fourteenth Amendments.
1210. Upon information and belief, the restrictions in Defendants’
written protocol related to an inmate’s last words also violate the
terms of a settlement agreement to which some of the original
Defendants in these lethal injection cases, and at least one former
Plaintiff in this action, Frederick Treesh, were a party, in Treesh v.
Taft, No. 99-624, S.D. Ohio.

20

1211. Upon information and belief, under the terms of the
settlement agreement, Defendants’ protocol would place no
restrictions on the content and/or the duration of an inmate’s last
statement.
1212. In all the foregoing ways, Defendants violate Plaintiff’s
rights to free speech protected by the First Amendment to the
United States Constitution and 42 U.S.C. § 1983.
(Fourth Amended Complaint (Tibbetts), ECF No. 691, PageID 20325, et seq.); (Otte, ECF No.
695, PageID 21001, et seq).)
Defendants asserts this claim should be dismissed because the Court, per Judge Frost,
already considered and rejected an identical claim (Motion, ECF No. 981, PageID 37016-17,
relying on In re: Ohio Execution Protocol Litig. (Wiles), 868 F. Supp. 2d 625, 649 (S.D. Ohio
2012)).
Plaintiffs distinguish Wiles by pointing out that Judge Frost was there deciding an equal
protection claim. While that is correct, the equal protection claim being made there was that the
regulation of last words burdened a fundamental right, the right to freedom of speech. Judge
Frost analyzed the parameters of that right in the last words context and found that the regulation
in question was reasonable in the execution context and therefore not a violation of the First
Amendment.
Plaintiffs also distinguish Wiles on the ground that Wiles did not challenge that portion of
the last words regulation that allows the Warden to impose reasonable restrictions on the content
and length of the last statement. Judge Frost noted that Wiles was not challenging that portion of
the Protocol. Wiles, 868 F. Supp 2d at 651. Although Tibbetts and Otte are challenging that
portion of the Protocol, the evidence they cite of likely restrictions which might be imposed by
Warden Erdos (ECF No. 1018, PageID 39719) are not unreasonable regulations in this context.

21

The Sixth Causes of Action are therefore DISMISSED.

Seventh Cause of Action

In their Seventh Causes of Action, Plaintiffs assert their Fourteenth Amendment due
process rights are violated by Defendants as follows:
1213. Plaintiff incorporates by reference each and every statement
and allegation set forth throughout this Fourth Amended
Complaint as if fully rewritten here.
1214. DRC Defendants have failed to definitively inform Plaintiff
about which method of execution they intend to apply to him in
such a way that Plaintiff can be sure of which execution method
Defendants will use on him, whether Plan 1, Plan 2 or Plan 3.
1215. DRC Defendants have not provided Plaintiff with the
identification information of any of the Drug Source Defendants
from whom they will obtain the execution drugs to be used at the
Plaintiff’s execution.
1216. Indeed, DRC Defendants were actively involved, in late
2014, in efforts to persuade the Ohio General Assembly to
introduce and enact legislation, i.e., HB 663, that would cause the
identification information of Drug Source Defendants and others to
be: (a) classified as confidential, privileged under law, and not
subject to disclosure by any person, state agency, governmental
entity, board, or commission or any political subdivision as a
public record under section 149.43 of the Ohio Revised Code or
otherwise; (b) no longer subject to disclosure by or during any
judicial proceeding, inquiry, or process, except as otherwise
provided in the new law; and (c) no longer subject to discovery,
subpoena, or any other means of legal compulsion for disclosure to
any person or entity, except as otherwise provided in the new law.
1217. These efforts resulted in the enactment of HB 663, which
became effective March 23, 2015, and the pertinent provisions
22

referenced here are codified at Ohio Revised Code §§
149.43(A)(1)(cc), 2949.221, and 2949.222.
1218. Under the purported authority of the referenced provisions of
HB 663, DRC Defendants have refused to provide Plaintiff with
the identification information of any of the Drug Source
Defendants from whom DRC Defendants will obtain the execution
drugs to be used at the Plaintiff’s execution.
1219. “The fundamental requisite of due process of law is the
opportunity to be heard. This right to be heard has little reality or
worth unless one is informed that the matter is pending . . . .”
Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314
(1950) (internal citations omitted).
1220. “The right to be heard before being condemned to suffer
grievous loss of any kind . . . is a principle basic to our society.”
Joint Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 168 (1951
(Frankfurter, J., concurring).
1221. The only meaningful time when Plaintiff can challenge the
method of his own execution is before he is executed.
1222. “Fundamental fairness, if not due process, requires that the
execution protocol that will regulate a prisoner’s death be
forwarded to him in prompt and timely fashion.” Oken v. Sizer,
321 F. Supp. 2d 658, 664 (D. Md. 2004), stay vacated, 542 U.S.
916 (2004).
1223. The Execution Protocol purports to provide timely notice to
an inmate of the manner in which he or she will be executed
including the execution drugs to be used, but that assurance is
merely illusory.
1224. There is no definitive deadline in the written protocol by
which the Warden must inform the inmate of what the Warden has
decided, and the Medical Team can make a different determination
at any time— including even the morning of a scheduled
execution—without any further notice to the inmate required.

23

1225. Plaintiff’s due process rights are violated when Defendants
provide information about their Execution Protocol but then carry
out the execution in a manner that differs from those
representations.
1226. DRC Defendants fail and refuse to provide critically relevant
information concerning the identification information of the Drug
Source Defendants and their experience, training, qualifications,
credentials, and performance history.
1227. By failing to require and provide adequate notice of exactly
which method of execution the Defendants will use, and of the
identification information of the Drug Source Defendants,
Defendants are depriving Plaintiff of his right to notice and an
opportunity to be heard in the form of a constitutional challenge to
Defendants’ execution method, in violation of the Due Process
Clause of the Fourteenth Amendment.
1228. Furthermore, because there is no requirement for
background checks, credentialing, or anything of the sort related to
which Drug Source Defendants with whom the DRC Defendants
will work to manufacture execution drug(s), or Drug Source
Defendants’ drug manufacturing facilities, and because there is no
mechanism by which any assessments or quality-control
inspections, testing, analysis, or other similar procedures of any
kind are done to ensure strict compliance with all relevant federal
and State of Ohio laws and Core Elements ## 1, 2, and 3,
Defendants are depriving Plaintiff of his right to notice and an
opportunity to be heard, in violation of the Due Process Clause of
the Fourteenth Amendment.
1229. Plaintiff will have no meaningful opportunity to challenge
the involvement of Drug Source Defendants in a critical aspect of
the written execution protocol if he is not informed in advance
about the source of the execution drug(s) to be used for his
execution, the specific involvement of each and every Drug Source
Defendant, and the identification information of such Drug Source
Defendants.

24

1230. Nor will he have a meaningful opportunity to challenge the
use of execution drugs manufactured for the sole purpose of killing
him which have a substantial, objectively intolerable risk of being
something other than the pure, sterile, unadulterated, not
expired/not past their use-by date, not-imported drugs of the proper
potency, content, pH level and other relevant characteristics, as
required to be used by the 2016 Execution Protocol and
Defendants’ execution policies.
1231. Defendants’ history of their misadventures in carrying out
executions and their history of making representations and then
reneging on those representations, coupled with the essentially
unlimited discretion the Execution Protocol purports to invest in
the DRC Director, means that Defendants’ ad hoc application of its
Execution Protocol violates Plaintiff’s right to due process.
1232. In all the foregoing ways, Defendants violate Plaintiff’s
rights to due process protected by the Fourteenth Amendment to
the United States Constitution and 42 U.S.C. § 1983.
(Fourth Amended Complaint (Tibbetts), ECF No. 691, PageID 20328, et seq.); (Otte, ECF No.
695, PageID 21003 et seq.)
Defendants read the Seventh Causes of Action as attempts to privately enforce the Food,
Drug, and Cosmetic Act (FDCA) and Controlled Substances Act (CSA) through the Eighth
Amendment, but Plaintiffs disclaim that reading (Memo Opp., ECF No. 1018, PageID 39722).
Instead, Plaintiffs claim they are raising in this Cause of Action only a pure notice and
opportunity to be heard procedural due process claim under the Fourteenth Amendment. Id.,
citing Mathews v. Eldridge, 424 U.S. 319 (1976). Of course, in the extensive introductory
material in the Fourth Amended Complaint, Plaintiffs write at length of how the possible use of
compounding pharmacies will violate both federal and state drug control laws (See, e.g., ECF
No. 691 at ¶ 474, et seq.)

25

These two Plaintiffs have had notice since October 7, 2016, of the Execution Protocol
under which Ohio plans to execute them. They have had ample opportunity to contest the
constitutional validity of the Protocol in this Court. To the extent they are arguing they should
have had a pre-adoption opportunity to contest the Protocol or an opportunity to contest it in
some other forum, they provide no authority for that proposition.3
Plaintiffs also assert they have a right to know the identity of the sources of execution
drugs and in particular of those entities they have named in that capacity as Defendants.
Although the parties do not cite the decision, it appears this claim is barred by the Sixth Circuit’s
decision in In re: Ohio Execution Protocol Litig. (Fears v. Kasich), 845 F.3d 231 (6th Cir. 2016).
Plaintiffs’ Seventh Causes of Action are therefore DISMISSED for failure to state a
claim upon which relief can be granted.

Eighth Cause of Action

In their Eighth Causes of Action, Plaintiffs assert a claim for unlawful bodily
experimentation on them without their consent in violation of the Due Process Clause of the
Fourteenth Amendment, as follows:
1233. Plaintiff incorporates by reference each and every statement
and allegation set forth throughout this Fourth Amended
Complaint as if fully rewritten here.
1234. The Fourteenth Amendment protects the liberty and privacy
right one has in the integrity of one’s body. See Rochin v.
California, 342 U.S. 165, 169 (1952); Hurtado v. People of
California, 110 U.S. 516, 536 (1884).
3

Plaintiffs cite Wood v. Ryan, 2016 U.S. Dist. LEXIS 66116 (D. Ariz. May 18, 2016). Running that citation in
Lexis produces Berkley v. Midfirst Bank from Mississippi. Running Wood v. Ryan in the same database for
decisions after May 1, 2016, produces no results.

26

1235. “[N]eedlessly severe intrusions of an individual’s body, even
if that individual [i]s a felon and stripped of most of his liberty,
[are] impermissible under the Due Process Clause of the
Constitution.” In re Cincinnati Radiation Litig., 874 F. Supp. 796,
818 (S.D. Ohio 1995).
1236. Within the basic protections of individual liberty
encapsulated in the Fourteenth Amendment are also the principles
established in the Nuremberg Code. Id. at 819–22.
1237. The Nuremberg Code, developed to create universal
standards for carrying out human experimentation, explicitly states
that “[t]he voluntary consent of the human subject is absolutely
essential. This means that the person involved should have legal
capacity to give consent; should be so situated as to be able to
exercise free power of choice . . . .” United States of America v.
Brandt (the Medical Case), II Trials of War Criminals Before the
Nuremberg Military Tribunals Under Control Council Law No. 10,
at 181 (1949).
1238. Ohio state administrative law prohibits administration of
experimental or investigational drugs to an inmate unless that drug
is the only option to treat a medical condition and written approval
has been obtained from the DRC Bureau of Medical Services State
Medical Director and the DRC Human Subjects Review
Committee. See ODRC Policy 68-MED-11, Protocol Number E-4,
Pharmacy Distribution and Dispensing Operations, ¶ III.D,
Experimental or Investigational Drugs.
1239. Ohio state administrative law also prohibits participation of
offenders in medical or pharmaceutical testing purely for
experimental purposes. ODRC Policy 06-RES-02, Human Subjects
Research Policy, ¶ VI.C.1.
1240. Ohio state administrative law also prohibits investigational
or experimental projects “that represent a risk to offenders.” Id. at
¶ VI.A.5.c.

27

1241. Other portions of Ohio administrative law in the form of
ODRC policies likewise prohibit Defendants from subjecting
Plaintiff to execution using experimental or investigational drugs
without Defendants’ having gone through the required, nondiscretionary procedures to engage in experimental or
investigational processes. See, e.g., DRC Policy 06-RES-01.
1242. Upon information and belief, no written approval to
administer experimental or investigational drugs to an inmate in
the context of an execution has ever been sought or obtained from
the DRC Bureau of Medical Services State Medical Director and
the DRC Human Subjects Review Committee.
1243. The written application for approval to use experimental or
investigational drugs must include the justification for use of the
drug(s), as well as an informed consent statement signed by the
inmate.
1244. Plaintiff has not signed an informed consent statement
authorizing Defendants to use investigational or experimental
drug(s) on him during a lethal-injection execution, nor is carrying
out his death sentence reasonably considered a “medical condition”
for which use of experimental or investigational drug(s) might be
permissibly considered.
1245. Because of the lack of data, studies, physician expertise, and
the variability of human response, every lethal injection that
Defendants conduct is a human experiment. See In re: Ohio
Execution Protocol Litig., 994 F. Supp. 2d 906, 913 (S.D. Ohio
Jan. 13, 2014).
1246. The timing of scheduled executions in Ohio, when compared
with the use-by date mandated under Ohio law for compounded
sterile injectables, means that Defendants—if they will not be
using expired drugs/drugs past their use-by date—will typically
need to obtain a new order of compounded execution drugs before
each execution.
1247. Each execution conducted with a new batch of compounded
execution drugs will be an experimental execution, because there is
28

no guarantee that the drugs involved will be identical from
execution to execution.
1248. Any compounded execution drugs are also unapproved
investigational New Drugs prohibited by the federal FDCA and
Ohio state law, and thus experimental by definition.
1249. Any imported execution drugs unapproved investigational
New Drugs prohibited by the federal FDCA and Ohio state law,
and thus experimental by definition.
1250. Any manufactured drugs that are ordinarily considered
“approved” drugs by the federal FDA are “unapproved” for
purposes of using those drugs to carry out a human execution.
1251. The experimental nature of each execution that Defendants
conduct is amplified exponentially due to the element of variability
added by use of compounded execution drugs, and amplified even
further because those compounded execution drugs are made by
pharmacists or other Drug Source Defendants who are, by
definition, ethically compromised by virtue of being willing to
violate their professional ethical standards to provide drugs to be
used in a human execution, and amplified further still if any of said
Drug Source Defendants are permitted to remain anonymous
thereby preventing Plaintiff and the Court from reasonable inquiry
into and verification of the Drug Source Defendants’ experience,
training, qualifications, credentials, performance history, and
adherence to the applicable federal and state laws.
1252. Similarly, the experimental nature of each execution that
Defendants conduct is amplified exponentially due to the element
of variability added by use of imported and/or misbranded
execution drugs, and amplified even further because those
imported and/or misbranded drugs were manufactured in facilities
that do not comply with U.S. manufacturing standards and
exported and imported by persons who are, by definition, ethically
compromised by virtue of being willing to use subterfuge and other
nefarious methods to smuggle unapproved, misbranded drugs
illegally into Defendants’ possession, and amplified further still if
any of said Drug Source Defendants are permitted to remain
29

anonymous thereby preventing Plaintiff and the Court from
reasonable inquiry into and verification of the Drug Source
Defendants’ experience, training, qualifications, credentials,
performance history, and adherence to the applicable federal and
state laws.
1253. Prisoners cannot give voluntary consent to human
experimentation because they lack the free power of choice.
1254. Plaintiff is a prisoner unable to exercise the free power of
choice.
1255. Even if he could give consent, he does not: Plaintiff does not
consent to being experimented on like a human guinea pig by
Defendants’ use of experimental lethal injection execution drugs.
1256. Defendants have no clinical basis for believing any drug
combination that Defendants use to execute Plaintiff will cause
death without a substantial, objectively intolerable risk of severe,
unnecessary pain or suffering.
1257. Defendants have no clinical basis for believing any drug
combination that Defendants use to execute Plaintiff will not cause
a lingering death.
1258. Defendants have no clinical basis for believing any drug
combination that Defendants use to execute Plaintiff will not cause
a humiliating, degrading spectacle.
1259. Any execution of the Plaintiff conducted by Defendants
under the Execution Protocol will constitute a human experiment
without voluntary consent, using unapproved investigational new
drugs illegally compounded and dispensed by an ethically
compromised pharmacist, or unapproved, misbranded drugs
manufactured in substandard facilities and exported and illegally
imported by ethically compromised Drug Source Defendants, all in
violation of Fourteenth Amendment. See In re Cincinnati
Radiation Litig., 874 F. Supp. 796, 818 (S.D. Ohio Jan. 11, 1995).

30

(Fourth Amended Complaint (Tibbetts), ECF No. 691, PageID 20332, et seq.); (Otte, ECF No.
695, PageID 21007 et seq.)
Defendants assert this Cause of Action does not state a claim under either the Eighth
Amendment or customary international law (Motion ECF No. 981, PageID 37020-23). Plaintiffs
respond that they are raising instead both procedural and substantive due process claims in this
Cause of Action (Memo Opp., ECF No. 1018, PageID 39723-31). Defendants reply that this
claim must be considered under the Eighth Amendment and is foreclosed by the decision in
Cooey (Biros) v. Strickland, supra (Reply, ECF No. 1033, PageID 40386). The Biros court
treated his claims as made under the Eighth Amendment alone, so it is not clear that it requires
that only Eighth Amendment analysis be applied when a substantive due process claim is
pleaded. 589 F.3d at 215. There is no doubt that the substantive branch of the Due Process
Clause does impose limitations on bodily intrusions by government entities. See Rochin v.
California, 342 U.S. 165 (1952).
However, the Court believes Plaintiffs have not successfully pleaded a substantive due
process claim. The flaw in their argument arises from their treating “experiment” as if it meant
the same thing in all the contexts from which they quote it. Our revulsion from the so-called
medical “experiments” conducted by the Nazis and indeed from the notorious syphilis
experiments on African-American men in this country has led to strict controls of medical
experimentation, including the requirement of informed consent.

But that is not what

Defendants are engaged in, although they have appropriately considered the results of the use of
particular drugs in planning future executions.
Rather, Defendants are engaged in carrying out executions of death sentences in the only
way allowed by Ohio law – lethal injection. Judge Frost’s observation that the use of a new

31

protocol for that process “presents an experiment” and “to pretend otherwise . . . would be
disingenuous” is correct. In re: Ohio Execution Protocol Litig., 994 F. Supp. 2d 906, 913 (S.D.
Ohio 2014). But changing the protocol in the way that Ohio has done does not amount to a
violation of Plaintiff’s substantive due process rights.
The Eighth Causes of Action are DISMISSED.

Ninth Cause of Action

In their Ninth Causes of Action, Plaintiffs claim their executions under Ohio’s execution
policy and Protocol would violate their unenumerated right as American citizens not to be
subjected to nonconsensual medical experimentation, allegedly protected from infringement by
the Privileges or Immunities Clause of the Fourteenth Amendment:
1260. Plaintiff incorporates by reference each and every statement
and allegation set forth throughout this Fourth Amended
Complaint as if fully rewritten here.
1261. Defendants’ application of their execution policy and written
execution protocol, as demonstrated through previous executions
such as Clark, Newton, Biros, Berry, McGuire, and the failed
execution of Broom, and as alleged above, along with the facts
alleged above related to executions of inmates in other states using
execution protocols similar or identical to Defendants’ protocol
and procedures and Defendants’ connection to those executions,
will violate Plaintiff’s fundamental, unenumerated rights protected
against infringement by the Privileges or Immunities Clause of the
Fourteenth Amendment.
1262. These rights include rights such as Plaintiff’s right to not be
the unwilling subject of forced, involuntary human
experimentation conducted by Defendants, which is a right secured
for the citizens of the United States based on citizenship of the
United States because it is a right secured by international treaties.
32

Slaughter-House Cases, 83 U.S. 36, 80 (1873); see also McDonald
v. City of Chicago, 561 U.S. 742, 851–855 (2010) (Thomas, J.,
concurring).
1263. The right against being subject to involuntary human
experimentation is clear, established as it is in numerous
international treaties to which the United States is a party,
including the Universal Declaration of Human Rights, G.A. Res.
217A, U.N. Doc A/810, at 71 (1947); the International Covenant
on Civil and Political Rights, G.A. Res. 2200A, 21 U.N. GAOR,
Supp. (No. 16) 49, 52, U.N. Doc. A/6316 (1966); the Geneva
Convention, 6 U.S.T. 3316, T.I.A.S. 3364, 75 U.N.T.S. 135, Aug.
12, 1949; the Declaration on the Protection of all Persons from
Being Subjected to Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, G.A. Res. 3452, Annex Art.
1 Agenda Item 74), 30 U.N.GAOR, Supp. (No. 34) 91, U.N. Doc.
A/10408 (1975); and the Nuremberg Code, G.A. Res. 161, U.N.
Doc. A/PV55, at 2244 (1946).
1264. Defendants’ Execution Protocol constitutes a forced,
involuntary human experimentation conducted by Defendants
because this Court has explicitly characterized it as such: “There is
absolutely no question that Ohio’s current [lethal- injection]
protocol presents an experiment in lethal injection processes. The
science involved, the new mix of drugs employed at doses based
on theory but understandably lacking actual application in studies,
and the unpredictable nature of human response make today’s
inquiry at best a contest of probabilities.” In re Ohio Execution
Protocol Litig., No. 2:11-cv-1016, 2014 WL 130609, at *6 (S.D.
Ohio Jan. 13, 2014).
1265. Defendants’ Execution Protocol also constitutes a forced,
involuntary human experimentation conducted by Defendants
because Defendants intend to administer pentobarbital, or
thiopental sodium, or midazolam followed by a paralytic drug and
potassium chloride, to Plaintiff to cause his death. This
administration falls outside any of those drugs’ marketed, FDAapproved purposes and outside the course of medical practice, and
therefore constitutes the use of “New Drugs” under the FDCA. See
21 U.S.C. § 321(p).
33

1266. The FDCA “generally prohibits access to new drugs unless
and until they have been approved by the Food and Drug
Administration.”
Abigail Alliance for Better Access to
Developmental Drugs v. von Eschenbach, 495 F.3d 695, 697 (D.C.
Cir. 2007) (en banc) (citing 21 U.S.C. § 355(a)).
1267. Before FDA approval, a new drug may only be used in
humans through a clinical investigation. A “clinical investigation”
is “any experiment in which a drug is administered or dispensed to,
or used involving, one or more human subjects. For the purposes
of this part, an experiment is any use of a drug except for the use of
a marketed drug in the course of medical practice.” 21 C.F.R. §
312.3(b).
1268. Defendants’ Execution Protocol’s experimental use of
pentobarbital, thiopental sodium, or midazolam followed by a
paralytic drug and potassium chloride, to kill inmates constitutes a
“clinical investigation”—that is, an experiment.
1269. Plaintiff will be one of the involuntary, unwilling human
“subjects” of Defendants’ human experimentation as a recipient of
the forcible application to him of the experimental execution drugs.
21 C.F.R. § 312.3(b).
1270. Plaintiff will also be an involuntary, non-consenting human
experimentation subject under Ohio’s binding administrative law.
See ODRC Policy 68-MED-11, Protocol Number E-4, Pharmacy
Distribution and Dispensing Operations, ¶ III.D, Experimental or
Investigational Drugs; ODRC Policy 06-RES-01, Research
Approval Process; ODRC Policy 06-RES-02, Human Subjects
Research Policy.
1271. Because Plaintiff will be an involuntary, non-consenting
subject of human experimentation based on (1) this Court’s
characterization of Defendants’ Execution Protocol; (2) the federal
regulatory scheme for approving investigational or experimental
new drugs; and (3) Ohio’s regulatory scheme for administering
experimental or investigational drugs to inmates in DRC custody,
and because Plaintiff’s right against being the unwilling subject of
34

forced, involuntary human experimentation is a fundamental
right—a privilege or immunity— guaranteed to him by virtue of
being a United States citizen though numerous international
treaties to which the United States is a party, Defendants’
application of the Execution Protocol to him will violate Plaintiff’s
rights protected by the Privileges or Immunities Clause of the
Fourteenth Amendment even under the most restrictive reading of
that clause.

(Fourth Amended Complaint(Tibbetts), ECF No. 691, PageID 20338, et seq.); (Otte, ECF No.
695, PageID 21012, et seq.)
The Court agrees with Defendants that this Cause of Action is precluded by the Supreme
Court’s decision in the Slaughter-House Cases, 83 U.S. 36 (1873)4, as reaffirmed in McDonald
v. Chicago, 561 U.S. 742 (2010). However correct Mr. Justice Field in dissent may have been in
his view of the intention of the Framers of the Fourteenth Amendment, the majority opinion is
still the law. The Ninth Causes of Action are DISMISSED.

Tenth Cause of Action

In their Tenth Causes of Action, Plaintiffs assert that the changes in Ohio’s lethal
injection protocol from the one effective before the October 10, 2013, amendment (to wit, those
effective October 10, 2013; April 28, 2014; January 9, 2015; June 29, 2015; and October 7,
2016) violate the Ex Post Facto Clause because they are more onerous (more likely to cause
pain) than the prior protocols and, conversely, less likely to provide a “quick and painless” death
as required by Ohio Revised Code § 2949.22. (Fourth Amended Complaint (Tibbetts), ECF No.
691, PageID 20342, et seq.); (Otte, ECF No. 695, PageID 21016, et seq.)
4

Incorrectly cited by Defendants as 1872. The case was decided April 14, 1873, during the December 1872 term of
the Court.

35

Defendants argue this claim is precluded by precedent, citing Malloy v. South Carolina,
237 U.S. 180 (1915)(finding the change from hanging to electrocution did not violate the Ex Post
Facto Clause). Plaintiffs respond that evidence from prior executions in Ohio and in other States
demonstrates that use of the three-drug protocol presently intended to be used by Ohio to execute
these Plaintiffs will in fact add pain and therefore will violate the Ex Post Facto Clause.
Although it was only the reversal of a preliminary injunction, the Court believes the
decision in Fears v. Morgan (In re: Ohio Execution Protocol), ___ F.3d ___, 2017 U.S. App.
LEXIS 11491 (6th Cir. Jun 28, 2017)(en banc), precludes this claim. The Tenth Causes of Action
are DISMISSED.

Eleventh Cause of Action

In their Eleventh Causes of Action, Plaintiffs claim their executions will violate the Bill
of Attainders Clause (Fourth Amended Complaint, (Tibbetts), ECF No. 691, PageID 20346, et
seq.); (Otte, ECF No. 695, PageID 21019, et seq.)
The relevant contemporary authority, cited by both parties, is Selective Service System v.
Minnesota Public Interest Research Group, 468 U.S. 841 (1984), which defined a bill of
attainder as “a law that legislatively determines guilt and inflicts punishment upon an identifiable
individual without provision of the protections of a judicial trial.” Id. at 846-47, quoting Nixon v.
Administrator of General Services, 433 U.S. 425, 468 (1977).
Plaintiffs argue that the current Execution Protocol imposes a punishment in addition to
that which has been imposed by a judge upon an “identifiable group.” (Memo Opp., ECF No.
1018, PageID 39738.)

36

In the Court’s judgment, the current Execution Protocol does not constitute a bill of
attainder because it does not single out an identifiable individual for punishment as required by
Selective Service System. Death row inmates in Ohio are there pursuant to individual criminal
trials by the judiciary; that is how they become members of the class of persons subject to
execution, not by individual selection by the legislature (the historic target of the Bill of
Attainders Clause) or by the executive. Death row inmates are, as Plaintiffs insist at various
points they must be, dealt with as a class. Selective Service System rejected the notion that
persons dealt with as a class and subjected to a detriment thereby had a claim for relief under the
Bill of Attainders Clause. Whether any identifiable group of persons could have such a claim is
doubtful.
The Eleventh Causes of Action are DISMISSED for failure to state a claim upon which
relief can be granted.

Twelfth and Thirteenth Causes of Action

In their Twelfth and Thirteenth Causes of Actions, Plaintiffs claim their executions under
the current Execution Protocol will involve deliberate indifference to, and reckless disregard of,
their serious medical needs, in violation of the Eighth Amendment (Fourth Amended Complaint
(Tibbetts), ECF No. 691, PageID 20348, et seq.); (Otte, ECF No. 595, PageID 21020, et seq.)
Defendants’ argument, as the Court understands it, is that these claims are implausible on
their face because “[t]he lawfully-imposed sentence to be carried out is death, therefore, the
intended result of Defendants’ execution procedures is death.” (Motion, ECF No. 981, PageID
37026.)

37

It appears to be common ground at this point in this case that injection of one of the
paralytic agents specified as the second drug in the current three-drug protocol or injection of
potassium chloride would cause an unconstitutional amount of pain even if either one of them or
both together would cause death, unless they were preceded by the prior injection of a drug
rendering the inmate insensate to pain. See Fears v. Morgan, supra, at *7. If an inmate were
given the first drug, then the second and third drugs, and then exhibited symptoms of severe
pain, it is not clear that the Eighth Amendment would not require the executioners to do
something to alleviate that pain, particularly if it continued for some time. On the other hand,
any claim that the executioners are under an Eighth Amendment duty to resuscitate any inmate
who has not yet died when the first assessment of death is made is implausible, given that capital
punishment is constitutional.
These Causes of Action, as the Court reads them, test the limits of the Eighth
Amendment obligation to provide medical care in the execution context. The Court cannot say
that they are implausible on their face.

Defendants’ Motion to Dismiss the Twelfth and

Thirteenth Causes of Action are DENIED.

Fourteenth Causes of Action

In their Fourteenth Causes of Action, Plaintiffs rely on their substantive due process right
to be free from governmental actions that shock the conscience and they alleged that the nonconsensual human experimentation involved in changing the Execution Protocol and the various
violations of federal and state drug laws which are or will be involved in carrying out executions

38

under the Protocol shock the conscience. (Fourth Amended Complaint, (Tibbetts), ECF No. 691,
PageID 20354, et seq.); (Otte, ECF No. 695, PageID 21025, et seq.)
Defendants seek dismissal of the Fourteenth Cause of Action on the grounds that
(1) any claim of this sort, i.e., a challenge to a State’s method of execution, must be made
under the Eighth Amendment; and
(2) “[i]f a constitutional claim is covered by a specific constitutional provision, it must be
analyzed under the standard appropriate to that provision and not under the “rubric of
substantive due process.”
(Motion, ECF No. 981, PageID 37028, citing Glossip v. Gross, 135 S. Ct. 2726, 2736-38 (2015),
and County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998)).
Plaintiffs rejoin that the Eighth Amendment does not apply because the Plaintiffs’ death
sentences do not include that they will be subject to non-consensual human experimentation or
violation of state and federal law (Memo Opp., ECF No. 1018, PageID 39746).
In County of Sacramento, supra, the Supreme Court wrote:
Just last Term, we explained that Graham [v. Connor, 490 U.S.
386, 394 (1989)]
"does not hold that all constitutional claims relating to
physically abusive government conduct must arise under
either the Fourth or Eighth Amendments; rather, Graham
simply requires that if a constitutional claim is covered by
a specific constitutional provision, such as the Fourth or
Eighth Amendment, the claim must be analyzed under the
standard appropriate to that specific provision, not under
the rubric of substantive due process." United States v.
Lanier, 520 U.S. 259, 272, n. 7, 1997 U.S. LEXIS 2079,
*23, 137 L. Ed. 2d 432, 117 S. Ct. 1219, (1997) (slip op.,
at 13).

39

Substantive due process analysis is therefore inappropriate in this
case only if respondents' claim is "covered by" the Fourth
Amendment. It is not.
County of Sacramento, supra, at 843.
County of Sacramento and Lanier appear to support Plaintiffs’ position that a claim of
physically abusive government conduct could be brought under the Fourteenth Amendment.
Moreover, this Court has had ample reason to regret reading the Glossip decision too
expansively, i.e., by concluding it required all method-of-execution claims to be brought in §
1983 cases rather than in habeas corpus. See Adams v. Bradshaw, 826 F.3d 306 (6th Cir. 2016).
Defendant’s theory that the Fourteenth Causes of Action must be analyzed under the Eighth
Amendment is rejected.
However, as held above, the use of a new Execution Protocol does not constitute human
experimentation so as to “shock the conscience” within the legal meaning of that term.5 That is
to say, while the so-called medical experiments in Nazi concentration camps and the Tuskegee
syphilis study both shock the conscience of civilized society, the use of new execution drugs
when older ones become unavailable does not per se shock the conscience.
Plaintiffs cite no authority for the proposition that, in general, violations of state or
federal law by state actors attempting to carry out state court judgments are substantive due
process violations.

In fact, violations of state laws do not ordinarily rise to the level of

procedural due process violations.

“A state cannot be said to have a federal due process

obligation to follow all of its procedures; such a system would result in the constitutionalizing of
every state rule, and would not be administrable.” Levine v. Torvik, 986 F.2d 1506, 1515 (6th Cir.

5

The Court is of course aware that capital punishment by any method offends the conscience of many. Justice
Frankfurter, who provided us with the phrase as part of substantive due process analysis in Rochin, supra. would
also have been quick to remind us of the separate roles of legal and moral analysis.

40

1993), cert. denied, 509 U.S. 907 (1993). Nor does a State have a due process obligation to
follow every federal statute which would have the same effect: constitutionalizing every federal
statute.
While Defendants’ Eighth Amendment argument is unavailing, the Court finds the
Fourteenth Causes of Action fail to state a claim upon which relief can be granted and they are
DISMISSED.

Fifteenth through Nineteenth Causes of Action

Because the Fifteenth through Nineteenth Causes of Action purport to state claims for
relief only against Defendants who are as yet unidentified and unserved, the Court declines to
adjudicate the Motion to Dismiss these claims as this time.

Twenty-First and Twenty-Third Causes of Action

In their Twenty-First and Twenty-Third Causes of Action, Plaintiffs purport to plead
Eighth Amendment claims arising out of Defendants possible use of compounded drugs or
illegally imported drugs in their executions (Fourth Amended Complaint (Tibbetts), ECF No.
691, PageID 20400, et seq. and PageID 20408, et seq.); (Otte, ECF No. 695, PageID 21064, et
seq. and PageID 21070, et seq.)
Defendants assert these claims are speculative, but rely on Brewer v. Landrigan, 562 U.S.
996 (2010). Brewer overruled a stay of execution based on speculation “that obtaining nonFDA-approved” drugs could” result in an Eighth Amendment violation. But at this juncture we

41

are dealing with a complaint, not a preliminary injunction. Plaintiffs’ Twenty-First and TwentyThird Causes of Action are sufficiently pleaded and the motion to dismiss them is DENIED.

Twenty-Fourth and Twenty-Fifth Causes of Action

In their Twenty-Fourth and Twenty-Fifth Causes of Action, Plaintiffs allege that there is
a substantial risk that their executions under the current protocol will result in a lingering death
or an “undignified spectacle execution” which will violate the Eighth Amendment (Fourth
Amendment Complaint (Tibbetts), ECF No. 691, PageID 20409, et seq.); (Otte, ECF No. 695,
PageID 21071, et seq.)
Defendants move to dismiss on the basis that the sole question under the Eighth
Amendment is whether the method of execution creates “a substantial risk of severe pain” and
they note that executions by firing squad and the electric chair “undoubtedly have greater
observable effects on the inmate than lethal injection.” Defendants further note that the Supreme
Court in Glossip did not retreat from its precedent sanctioning those two modes of execution
(Motion, ECF No. 981, PageID 37058). Plaintiffs respond that the Supreme Court in Baze v.
Rees, 553 U.S. 35 (2008), held a punishment could be cruel within the meaning of the Eighth
Amendment if it involved torture or “a lingering death.”
The jurisprudence on “lingering death” is not well developed. It is certainly possible to
imagine a painless but lingering death. Imagine, for example, a crucifixion with a fully-effective
morphine drip which would presumably take hours to cause death6 but would, I believe, violate
the Eighth Amendment.

6

Compare John 20:31-34. Traditionally, Jesus’ crucifixion took three hours to result in death, while the two men
crucified with him were still alive after three hours.

42

The motion to dismiss the Twenty-Fourth and Twenty-Fifth Causes of Action is
DENIED.

Twenty-Sixth Cause of Action

In their Twenty-Sixth Causes of Action, Plaintiffs reassert their claims about human
experimentation in the use of a new protocol, this time as an Eighth Amendment violation. This
claim is no more viable under the Eighth Amendment than under the Fourteenth. The TwentySixth Causes of Action will be DISMISSED.

Twenty-Seventh Cause of Action

In their Twenty-Seventh Causes of Action, Plaintiffs allege that maladministration or
arbitrary administration of the Execution Protocol will present risks of suffering which violate
the Eighth Amendment (Fourth Amended Complaint (Tibbetts), ECF No. 691, PageID 20423, et
seq.); (Otte, ECF No. 695, PageID 21082, et seq.)
Defendants seek dismissal on the grounds his claim is precluded by Cooey (Biros), supra.
Plaintiffs respond that “Biros is largely predicated on the absence of any specific allegations in
Biros’s complaint” (Memo Opp., ECF No. 1018, citing 589 F.3d at 224-25).
While the Sixth Circuit in Biros did mention that his maladministration claims were
“general” and not sufficiently distinguished from the risk of maladministration claims rejected in
Baze, it also quoted as a holding of Baze that “Eighth Amendment challenges to lethal injection
protocols on the grounds that the protocol could be improperly administered are insufficient to

43

demonstrate a violation.” 589 F.3d at 223, citing Baze, 128 S.Ct. at 1537-38. That holding is
fatal to Plaintiffs’ Twenty-Seventh Causes of Action, which will be DISMISSED.

Twenty-Eighth Cause of Action

In their Twenty-Eighth Causes of Action, Plaintiffs assert an Eighth Amendment
violation because they claim that they suffer a “substantial risk of serious harm” by being subject
to an execution protocol that is facially unconstitutional because it does not preclude execution
of persons categorically exempt from execution under the Constitution.

The categorical

exemptions to which Plaintiffs specifically refer are those for mental incompetence and
intellectual disability, rather than having committed a crime other than murder or having been
under eighteen at the time the crime was committed.
The absence of any allegation in the Fourth Amended Complaint that either Tibbetts or
Otte is exempt from execution by reason of mental incompetence or intellectual disability is fatal
to these Causes of Action. There is no constitutional right to be exempt from execution under a
protocol that does not provide appropriate screening procedures to determine if an inmate is
mentally incompetent to be executed or intellectually disabled unless the plaintiff is a person
who claims membership in one of those categories. The Twenty-Eighth Causes of Action will be
DISMISSED.

44

Twenty-Ninth Cause of Action

In their Twenty-Ninth Causes of Action, Plaintiffs assert that the existence of the present
Execution Protocol causes them a present harm, to wit, “torturous mental or psychological pain,
suffering, horrific anxiety, terror [,] and anguish.” (Memo Opp., ECF No. 1018, PageID 39770,
citing Fourth Amended Complaint (Tibbetts), ECF No. 691, PageID 20439, et seq.) and ;Otte,
ECF No. 695, PageID 21096, et seq.)
Plaintiffs present no authority recognizing any present compensable or enjoinable harm
that flows from the existence of an execution protocol that is separate from the future harm
cognizable under Baze, supra. That is to say, the Court recognizes the distinction Plaintiffs are
making, but concludes the asserted present harm is not cognizable under 42 U.S.C. § 1983.
Plaintiffs’ Twenty-Ninth Causes of Action will be DISMISSED.

Thirtieth Cause of Action

In the Thirtieth Causes of Action, Plaintiffs allege they will be deprived of their life
interests by being executed pursuant to an execution protocol which permits the use of execution
drugs which do not meet the new drug requirements of the Federal Pure Food, Drug, and
Cosmetics Act (FDCA).7 (Fourth Amended Complaint (Tibbetts), ECF No. 691, PageID 20440,
et seq.); (Otte, ECF No. 695, PageID 21096, et seq.)

7

While Plaintiffs reference the federal Controlled Substances Act (CSA) in their opposition, the Fourth Amended
Complaint does not discuss the CSA in the Thirtieth Cause of Action.

45

Defendants seek dismissal of these Causes of Action because, they assert, the Sixth
Circuit has held there is no private right of action to enforce the FDCA or, indeed, the CSA
(Motion, ECF No. 981, citing Durr v. Strickland, 602 F.3d 788 (6th Cir. 2010)).
Plaintiffs respond that Durr was a declaratory judgment action seeking a judgment that
Ohio’s use of certain drugs for executions violated the FDCA and/or the CSA (Memo Opp., ECF
No. 1018, PageID 39771). In contrast, Plaintiffs say, this is a § 1983 action in which they claim
deprivation of due process by the State’s not complying with those statutes. Id. They also
contend Defendants’ cited authority, Jones v. Union County, Tennessee, 296 F.3d 417 (6th Cir.
2002), supports liability here.
The Court agrees that the question whether there is a private right of action to enforce
either the FDCA or the CSA is separate from the question whether the procedures required by
those acts give rise to a constitutional right enforceable under 42 U.S.C. § 1983. But, as noted
above, there is no constitutional due process right to have the procedures that are a part of a state
or federal statute enforced through a § 1983 action. Levine v. Torvik, supra.
Jones is not to the contrary. There the Sixth Circuit discussed whether various county
policies deprived a plaintiff of her undoubted constitutional rights to access to the courts, to
equal protection, and to due process by not protecting her from the torts of her non-state-actor
ex-husband. Here the question is whether § 1983 provides a right of action to enforce, through
the Due Process Clause, the “rights” of Plaintiffs not to be subject to experimentation by the use
of drugs which do not comply with the FDCA or the CSA. Because there is no private right of
action to enforce either of those statutes, a fortiori there is no constitutional due process right to
enforce those statutes through § 1983. That is to say, there is no constitutional right to the

46

statutory protections provided by the FDCA or CSA. The Thirtieth Causes of Action will
therefore be DISMISSED.

Thirty-First Cause of Action

In their Thirty-First Causes of Action, Plaintiffs recast their Thirtieth Causes of Action in
equal protection terms (Fourth Amended Complaint (Tibbetts), ECF No. 691, PageID 20447, et
seq.); (Otte, ECF No. 695, PageID 21103, et seq.)
Although Plaintiffs are correct that the lack of a private right of action is not
determinative, they offer no authority for the proposition that violations of state or federal
statutory provisions give rise to Equal Protection claims enforceable under 42 U.S.C. § 1983.
The Thirty-First Causes of Action are DISMISSED on the same basis as the Thirtieth.

Thirty-Second Cause of Action

In their Thirty-Second Causea of Action, Plaintiffs claim that the authority the Execution
Protocol gives the Warden to limit their last words statement if it contains language intentionally
offensive to the witnesses violates their constitutional rights under the Free Exercise Clause and
their statutory rights under the Religious Land Use and Institutionalized Persons Act
(RLUIPA)(Fourth Amended Complaint, (Tibbetts), ECF No. 691, PageID 20448, et seq.); (Otte,
ECF No. 695, PageID 21104 et seq.) Plaintiffs speculate that their “last words may include [a]
prayer for atonement recounting details of his actions [and that] the witnesses might find this
speech offensive either because of the content or because their religion is different from

47

Plaintiff[s’].” (Fourth Amended Complaint, (Tibbetts), ECF No. 691, PageID 20448, et seq.);
(Otte, ECF No. 695, PageID 21104 et seq.)
Defendants assert these Causes of Action are barred by the Court’s prior decision in In re
Ohio Execution Protocol Litig. (Wiles), 868 F. Supp. 2d 625 (S.D. Ohio 2012)(Frost, J.)
Plaintiffs respond that Wiles was concerned with equal protection and free speech, but did not
address any claim under RLUIPA or the Free Exercise Clause.
The Court concludes that the principles enunciated by Judge Frost in Wiles control
resolution of this claim. He wrote:
[A]n inmate retains only "those First Amendment rights that are
not inconsistent with his status as a prisoner or with legitimate
penological objectives of the corrections system." Pell v.
Procunier, 417 U.S. 817, 822, 94 S. Ct. 2800, 41 L. Ed. 2d 495
(1974). Thus, state regulations in the prison context are subject to a
"lesser standard" of review than strict scrutiny. Turner v. Safley,
482 U.S. 78, 81, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987). Such
regulations are valid if they are reasonable related to legitimate
penological interests. Id. at 89. See also Brown v. City of
Pittsburgh, 586 F.3d 263, 283 n.22 (3d Cir. 2009) (noting that if
every regulation that burdened constitutionally protected speech
were subject to strict scrutiny, the varying degrees of scrutiny that
the First Amendment requires in different contexts would be
"rendered obsolete").
Four factors are relevant to the "lesser" reasonableness standard
that applies here. Turner, 482 U.S. at 89-90. The governmental
objective underlying the regulation must be legitimate and neutral,
and the regulation must be rationally related to that objective. Id. at
89-90. See also Thornburgh v. Abbott, 490 U.S. 401, 415, 109 S.
Ct. 1874, 104 L. Ed. 2d 459 (1989) (holding that, where prison
officials drew distinctions between publications "solely on the
basis of their potential implications for prison security," the
regulations were "neutral" despite the fact that the determination
"turn[ed], to some extent, on content"). Prison officials can and
should exercise their discretion in applying these objectives. See
Thornburgh, 490 U.S. at 416 (noting that where incoming
48

publications could potentially "exacerbate tensions and lead
indirectly to disorder . . . a regulation which gives prison
authorities broad discretion is appropriate"). The Turner Court
also considered whether alternative means of exercising the
inmate's First Amendment rights remained available and whether
accommodation of the asserted right would impact the guards,
other inmates, or allocation of prison resources generally. Turner,
482 U.S. at 89-90. Finally, the Turner Court considered whether
ready alternatives to the regulation were available, and if so,
whether the challenged regulation was an "exaggerated response to
prison concerns." Id. at 90.
Here, Ohio undoubtedly has an interest in maintaining prison
security and performing executions in an orderly manner. See, e.g.,
Thornburgh, 490 U.S. at 411 (analyzing regulations in light of the
proposed threat to "prison order and security"). An inmate's last
words that the warden interprets as "intentionally offensive to the
witness" are likely to cause disorder and disrupt the execution
process. Cf. Kirkland v. Luken, 536 F. Supp. 2d 857, 876 (S.D.
Ohio 2008) (holding that the use of an offensive term during a city
council meeting, directed at the audience, "was likely to incite the
members of the audience during the meeting, cause disorder, and
disrupt the meeting"). Allowing the warden to turn off the inmate's
microphone is rationally related to Ohio's interest in preserving
order. Cf. id. (explaining that when a state official turned off an
individual's microphone after he made offensive statements at a
city council meeting, the act was "narrowly tailored to achieve the
compelling interest of preventing the [individual] from inciting
those in attendance at the meeting to become unruly and to prevent
the meeting from becoming disorderly"). The state's action in
Kirkland satisfied strict scrutiny, see id. at 874-75, and the
regulation here that permits a nearly identical action satisfies the
lesser standard.
The remaining Turner factors further suggest that the challenged
section of the protocol is reasonable. The challenged regulation
applies to a specific time and place—the death chamber—and does
not preclude the inmate from expressing any type of
communication during his tenure at the prison. Allowing the
inmate to speak offensively via microphone in the death chamber
49

could also necessitate increased security (and a reallocation of
resources) during the execution. Finally, where the state could
presumably forego last words entirely, allowing the warden to
terminate an inmate's last words that are intentionally offensive to
witnesses is not an exaggerated response to the goal of performing
orderly executions. The Court concludes that the challenged
regulation is reasonable and appropriately vests necessary
discretion in the warden.
Id. at 649-51.
While Plaintiffs state generally that the protections provided by RLUIPA are greater than
those provided directly by the Free Exercise Clause, they have not pleaded a standard for judging
such claims that is different from the standard suggested in Wiles. In addition, neither of these
Plaintiffs has pleaded that he personally has a religious belief that would compel him to say
anything in a last statement that would be offensive to a witness or indeed to make a last
statement at all. While last statements have traditionally been a part of executions in the AngloAmerican tradition, nothing in the Constitution compels honoring that tradition.

In the

contemporary Ohio context, the means of communication between the inmate in the death
chamber and witnesses in the witness room is by way of a microphone provided by the State.
Even if the Constitution protects – on free speech or free exercise grounds – the right of an
inmate to speak, it does not compel the State to furnish him with a means to ensure that speech is
heard by certain people. Because speech that is intentionally offensive to certain witnesses is, as
Judge Frost found, likely to incite disruption of the execution, the State has a strong interest in
interrupting that speech once it has begun.
Therefore the Thirty-Second Causes of Action are DISMISSED for failure to state a
claim upon which relief can be granted. The Court declines to conclude that the claims are so
insubstantial that the Court lacks subject matter jurisdiction to decide it.

50

Thirty-Third and Thirty-Fourth Causes of Action

In their Thirty-Third Causes of Action, each of these Plaintiffs pleads that his unique
individual physical and mental characteristics will result in a substantial risk of serious harm in
the form of severe, needless physical or mental/psychological pain from application to him of the
Execution Protocol (Fourth Amended Complaint (Tibbetts), ECF No. 691, PageID 20450, et
seq.); (Otte, ECF No. 695, PageID 21105). In the Thirty-Fourth Causes of Action, Plaintiffs rely
on the same unspecified unique characteristics to plead an Equal Protection violation.
Defendants seek dismissal of these Causes of Action on the ground that they plead only
legal conclusions, not facts, and are therefore insufficient under Iqbal and Twombly. Plaintiffs
respond that they have been specific enough to satisfy that standard, citing Skinner v. Switzer,
562 U.S. 521 (2011). Skinner, however, held that Fed. R. Civ. P. 8(a)(2) “generally requires
only a plausible ‘short and plain’ statement of the plaintiff’s claim, not an exposition of his legal
argument.” Id. at 530, citing 5 C. Wright & A. Miller, Federal Practice & Procedure § 1219.
Defendants’ Motion complains not about a lack of legal theory, but a lack of pleaded plausible
facts. What are the “unique individual physical and mental characteristics” of each of these
Plaintiffs which make the Protocol as applied to him a violation of the Eighth Amendment? At
some level of granularity, evert human being has individual physical characteristics which
distinguish him from every other human being. For example, one person’s right forearm will be
.0001 inch longer or shorter than some other person’s right forearm. It seems highly unlikely,
however, that this particular individual characteristic would be in any way relevant to the impact
on the two different persons of Ohio’s Execution Protocol. Until each of these Plaintiffs makes

51

some claim about which of his characteristics is relevant, there is no plausible claim on which to
conduct discovery or even an opportunity for Defendants to adjust the Protocol or its
administration to account for the individual characteristics.
Defendants note that this Court has held similar pleading insufficient in Bays v. Warden,
2016 WL 792015 (S.D. Ohio 2016).

Although Bays was applying the stricter pleading

requirements of Habeas Corpus Rule 2(c), the logic is still applicable. The Court noted that
This claim is virtually identical to claims being made by other
Ohio capital habeas petitioners. See, e.g., Chinn v. Warden, Case
No. 3:02-cv-512, ECF No. 133, PageID 9701-3; Raglin v. Mitchell,
Case No. 1:00-cv-767, ECF No. 247, PageID 3405-7; Sheppard v.
Robinson, Case No. 1:12-cv-198, ECF No. 70-1, PageID 1103-5.
Every human being has unique physical and mental characteristics,
at least when considered in combination and when expressed in the
individual person. Bays fails to allege which of his physical or
mental characteristics makes it impossible to execute him by lethal
injection. Is it hallucinations or heart disease or anxiety or a liver
ailment, or what? The claim cannot be defended against or
adjudicated without knowing what the alleged individual
characteristics are.
Id. at *8. A pleading that claims “there is something unique to me” that makes the Protocol
unconstitutional does not say enough to satisfy the Iqbal and Twombly standard. The ThirdThird and Thirty-Fourth Causes of Action are DISMISSED WITHOUT PREJUDICE to a
subsequent amendment that provides sufficient detail about what unique characteristics are
asserted to be relevant.

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Thirty-Eighth Cause of Action

In their Thirty-Eighth Causes of Action, Plaintiffs assert Ohio’s three-drug protocol for
executions is unconstitutional because it represents a devolution to a more primitive form of
execution (Fourth Amended Complaint (Tibbetts), ECF No. 691, PageID 20467 et seq.); (Otte,
ECF No. 695, PageID 21119, et seq.)
In deciding these Plaintiffs’ Motions for Preliminary Injunction, the Court declined to
grant relief on this theory because it did not believe either the Sixth Circuit or the Supreme Court
was prepared to recognize this theory (ECF No. 948, PageID 32135-36).8 Plaintiffs re-state their
theory in their Memorandum in Opposition: “Ohio is categorically prohibited from adopting a
lethal-injection method of execution that is a devolution away from a method of execution Ohio
had previously claimed to be a more-humane method.” (ECF No. 1018, PageID 39784.) While
Plaintiffs did not appeal the denial of this portion of their motion for preliminary injunction and
thus the Sixth Circuit did not address it, the Sixth Circuit’s express rejection of the Plaintiffs’
judicial estoppel claim suggests strongly that the circuit court would not adopt the devolution
claim. The only authority for the devolution claim is Justice Sotomayor’s dissent in Glossip and
even she disclaimed a conclusion that a devolution would necessarily be unconstitutional.
Plaintiffs’ Thirty-Eighth Causes of Action are DISMISSED for failure to state a claim
upon which relief can be granted.

8

The Court acknowledges that its preliminary injunction decision can be read as misconstruing the breadth of this
devolution claim.

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Thirty-Ninth Cause of Action

In their Thirty-Ninth Causes of Action, Plaintiffs contend that any Ohio three-drug
execution method will be unconstitutional regardless of the identity of the first drug used (Fourth
Amended Complaint (Tibbetts), ECF No. 691, PageID 20469, et seq.); (Otte, ECF No. 695,
PageID 21121, et seq.)
This claim is barred by binding precedent. Fears v. Morgan (In re: Ohio Execution
Protocol), ___ F.3d ___, 2017 U.S. App. LEXIS 11491 (6th Cir. 2017)(en banc).

It is

accordingly dismissed.

Forty-Second Cause of Action

In their Forty-Second Causes of Action, Plaintiffs assert that removal from the Ohio
Execution Protocol of required concentrations of execution drugs removes, in violation of the
Eighth Amendment, a safeguard that obviated a substantial risk that they would experience
severe pain and suffering (Fourth Amended Complaint (Tibbetts), ECF No. 691, PageID 20493,
et seq.); (Otte, ECF No. 695, PageID 21140, et seq.)
Based on prior decisions of Judge Frost cited in Plaintiffs’ Memorandum in Opposition,
the motion to dismiss the Forty-Second Causes of Action is DENIED.

Forty-Fourth Cause of Action

In their Forty-Fourth Causes of Action, Plaintiffs assert

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Ohio’s Execution Protocol is unlawful because it was not
promulgated as a rule and because The Ohio Department of
Rehabilitation and Correction (DRC) exceeded its delegated
authority in enacting it. If viewed as a departmental policy, the
protocol’s enactment constitutes arbitrary and capricious action
because it does not comply with the Department’s own Directive
on enacting Policies.
(Fourth Amended Complaint (Tibbetts), ECF No. 691, PageID 20500, et seq. quoting ¶ 1904);
(Otte, ECF No. 695, PageID 21147, et seq.)9 Defendants seek dismissal of these Causes of
Action because they are based entirely on state law which does not create a private right of
action (Motion ECF No. 981, PageID 37071). Having captioned this claim as “Administrative
Procedures Act Claims” (ECF No. 691, PageID 20500), Plaintiffs recaption it in their
Memorandum in Opposition as “Equal Protection Violations Arising from Administrative
Procedures Act Violations” (ECF No. 1018, PageID 39791).10
In defending the Forty-Fourth Causes of Action, Plaintiffs rely on the law of the case as
set forth in Judge Frost’s decision in Cooey v. Kasich (Smith), 801 F. Supp. 2d 623 (S.D. Ohio
2011)(ECF No. 1018, PageID 39792).11 Having read that decision, the Court finds that it does
not adopt an equal protection theory that would sustain the Forty-Fourth Causes of Action.
Essentially the claim is an Ohio Administrative Procedures Act claim which Plaintiffs have
failed to elevate to a constitutional level. The Forty-Fourth Causes of Action are DISMISSED
on this basis.

9

It is emblematic of the close coordination of Plaintiffs’ counsel in these two cases that Forty-Fourth is identically
misspelled as “Forth-Fourth” in both ECF No. 691 and 695.
10
Plaintiffs acknowledge that the pleading “could have been clearer.” ECF No. 1018, PageID 39793.
11
Plaintiffs mention a decision in “Lorraine,” but fail to give any citation.

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Forty-Fifth Cause of Action

In their Forty-Fifth Causes of Action, Plaintiffs assert a claim that a three-drug method of
execution which starts with midazolam violates the prohibition on cruel and unusual punishment
because it no longer comports with prevailing standards of decency (Fourth Amended
Complaint, (Tibbetts), ECF No. 691, PageID 20525 et seq.); (Otte, ECF No. 695, PageID 21167,
et seq.)
Defendants seek dismissal on the basis of authority refusing to enjoin the use of
midazolam as the first drug in a three-drug execution protocol (Motion, ECF No. 981, PageID
37072-73, citing Jordan v. Fisher, 823 F.3d 805 (5th Cir. 2016), and Arthur v. Alabama Dept. of
Corr., 840 F.3d 1268 (11th Cir. 2016)). To this authority must be added the Sixth Circuit’s
recent decision in this case, Fears v. Morgan, supra.
However, what is before the Court at this point is a pleading question, not a proof
question. The United States Supreme Court has relied on the “evolving standards of decency”
interpretation of the Eighth Amendment since Trop v. Dulles, 356 U.S. 86 (1958). It has
expressly relied on it in categorically barring the execution of the intellectually disabled (Atkins
v. Virginia, 536 U.S. 304 (2002)) and juvenile murderers (Roper v. Simmons, 543 U.S. 551
(2005)). As the evidence presented at the preliminary injunction here showed, attitudes about
midazolam as an execution drug in particular have evolved since Dennis McGuire’s execution in
January 2014. This Court based its decision in part on the abandonment of midazolam by
Florida and Arizona even since October 2016 when Ohio readopted it. That evidence was
insufficient to persuade the Sixth Circuit to uphold the preliminary injunction, but the en banc

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court did not decide the pleading question.12 The relevant society whose evolving standards of
decency counts for Eighth Amendment purposes is our national society. Its standards must be
evaluated by the Supreme Court which that Court cannot do if the relevant claims are dismissed
at the pleading stage.
The motion to dismiss the Forty-Fifth Causes of Action is DENIED.

Forty-Ninth Cause of Action

In addition to seeking dismissal of various Causes of Action in the Fourth Amended
Complaints, Defendants also seek dismissal of the Forty-Ninth Cause of Action which Plaintiffs
Tibbetts and Otte pleaded jointly (ECF No. 981 at PageID 37073 et seq.), seeking dismissal of
Joint OCPA [Ohio Corrupt Practices Act] Supplement to Tibbetts’ and Otte’s Fourth Amended
Complaint for Injunctive and Declaratory Relief against Individual Defendants, [the “Joint
Supplement”] ECF No. 954).
In the Joint Supplement Plaintiffs seek relief under the OCPA as to Defendants Richard
Theodore and Execution Team members 17, 21, 31, and 32 in their individual capacities (ECF
No. 954, ¶ 2135, PageID 32343).13 Collectively these Defendants will be referred to as the
“OCPA Defendants.”

12

Of course, the preliminary injunction was not entered on the theory advanced in the Forty-Fifth Causes of Action,
but it is obviously a closely-related matter.
13
The Court commends Plaintiffs’ counsel for using continuous numbering for both the Forty-Ninth cause of action
and the paragraphs of the Joint Supplement. In this complex litigation, this is a “best practice” which facilitates
reference by the Court.

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Subject Matter Jurisdiction

Defendants characterize this as a pendent state law claim and assert this Court does not
have subject matter jurisdiction to adjudicate the claim because the Ohio Court of Claims has not
yet decided whether the complained-of acts of these OCPA Defendants were “manifestly outside
the scope of their employment.” (Motion, ECF No. 981, PageID 37074, relying on Haynes v.
Marshall, 887 F.2d 700 (6th Cir. 1989), and McCormick v. Miami Univ., 693 F.3d 654 (6th Cir.
2012), as well as other unpublished authority.)
Plaintiffs respond that the state statute in question14 directly conflicts with 28 U.S.C. §
1367 and is therefore unconstitutional under the Supremacy Clause (ECF No. 1018, PageID
39797). Defendants reply that the Ohio statutes in question are not attempts to limit federal court
jurisdiction, but “set forth the very limited circumstances under which Ohio has agreed to waive
Eleventh Amendment immunity.” (ECF No. 1033, citing Haynes, supra.)
In Haynes the Sixth Circuit explained how federal courts are to analyze claims brought
under state law but in federal court against a state employee where it is alleged that the
employee’s conduct is “manifestly outside the scope of employment.” As to such claims, Ohio
has waived its sovereign immunity, but only upon adjudication by the Ohio Court of Claims.
The court held
A federal court exercising pendent jurisdiction sits as a court of the
forum state and is bound to apply its substantive law. See Guaranty
Trust Co. v. York, 326 U.S. 99, 108-09, 89 L. Ed. 2079, 65 S. Ct.
1464 (1945). Ohio law requires that, as a condition precedent to
asserting a cause of action against a state employee in his
individual capacity, the Court of Claims must first determine that
the employee is not entitled to the immunity provided for in
14

Plaintiffs do not cite a particular statute, but Defendants indicate they are relying on Ohio Revised Code §
2743.02(F)(ECF No. 981, PageID 37074).

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Revised Code section 9.86. Prior to that condition being satisfied,
then, there is no claim under Ohio law upon which relief may be
granted against state employees in their individual capacities. In
that regard, the only recognized cause of action lies, initially,
against the State of Ohio in the Court of Claims. Ohio Rev.Code
Ann. § 2743.02(F) (Anderson Supp. 1988). Accordingly, the
district court may not assert pendent jurisdiction over plaintiff's
wrongful death claim until such time as a cause of action against
defendants is recognized under Ohio law.
Id. at 705.
Haynes was decided under the common law pendent jurisdiction recognized by United
Mine Workers v. Gibbs, 383 U.S. 715 (1966). That common law jurisdiction was codified in the
Federal Courts Improvement Act of 1990 in 28 U.S.C. § 1367, but, contrary to Plaintiffs’
position, § 1367 did not displace the analysis given in Haynes.
Davet v. City of Cleveland, 456 F.3d 549 (6th Cir. 2006), relied on by Plaintiffs, is not to
the contrary. The defendants there, although state actors for purposes of direct liability under 42
U.S.C. § 1983, were not state employees arguably entitled to immunity under Ohio Revised
Code § 9.86. Williams v. Duke Energy Int’l, Inc., 681 F.3d 788 (6th Cir. 2012), is also
distinguishable in that none of the defendants there were state employees.
Plaintiffs infer from the codification of pendent15 jurisdiction that Haynes no longer
applies. The codification made important changes to this jurisdictional law, most importantly by
expanding the coverage to any claim within the same case or controversy as the federal question
jurisdiction on which original jurisdiction was based. But it did not purport to give federal courts
the authority to decide that a state-created cause of action was broader than state law allowed.
Any such attempt to expand our jurisdiction would have been arguably unconstitutional under
Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).
15

According to Black’s, “pendent” rather than “pendant” is the correct spelling.

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Accordingly, the Forty-Ninth Cause of Action is DISMISSED WITHOUT PREJUDICE
to its assertion in the Ohio Court of Claims.

Conclusion

Defendants’ Motion to Dismiss the Fourth Amended Complaints of Plaintiffs Tibbetts
and Otte is GRANTED IN PART AND DENIED IN PART as set forth above. In each case
where a Cause of Action was dismissed, the Court has acted under Fed. R. Civ. P. 12(b)(6). It
has not found any claim made by Plaintiffs to be so insubstantial as to deprive it of subject matter
jurisdiction.

July 12, 2017.
s/ Michael R. Merz
United States Magistrate Judge

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