In Re: Ohio Execution Protocol Litigation
***WITHDRAWN PER 1100*** DECISION AND ORDER ON RECONSIDERATION OF DECISION ON MOTION TO DISMISS AS TO FORTY-NINTH CAUSE OF ACTION (ECF No. 1090) - Having reconsidered the Decision as to the Forty-Ninth Cause of Action, the order dismissing that clai m without prejudice to its reassertion in the Ohio Court of Claims is WITHDRAWN. In place of that portion of the Decision, the Court now orders that the Forty-Ninth Cause of Action be dismissed without prejudice for lack of subject matter jurisdiction by virtue of the Eleventh Amendment. Signed by Magistrate Judge Michael R. Merz on 7/17/2017. (kpf) Modified on 7/17/2017 (kpf).
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
In re: OHIO EXECUTION
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 ON RECONSIDERATION OF DECISION
ON MOTION TO DISMISS AS TO FORTY-NINTH CAUSE OF
On Defendants’ Motion (ECF No. 954), this Court dismissed, without prejudice to its
assertion in the Ohio Courts of Claims, the Forty-Ninth Cause of Action pleaded in the Joint
OCPA Supplement (ECF No. 954(to the Fourth Amended Complaints of Plaintiffs Raymond
Tibbetts and Gary Otte (ECF No. 1088, reported at In re: Ohio Execution Protocol Litigation
(Tibbetts & Otte), 2017 U.S. Dist. LEXIS 107468 (S.D. Ohio Jul 12, 2017)(the “Decision”).
Plaintiffs Tibbetts and Otte have moved the Court to reconsider that decision (ECF No. 1090).
Because the Decision is interlocutory, the Court has authority to reconsider it, even
though it constitutes the law of the case unless modified.
Prejudgment orders remain
interlocutory and can be reconsidered at any time. Moore’s Federal Practice at ¶0.404.
In the Joint Supplement Plaintiffs seek injunctive and declaratory relief under the Ohio
Corrupt Practices Act as to Defendants Richard Theodore and Execution Team Members 17, 21,
31, and 32 in their individual capacities (ECF No. 954, ¶ 2135, PageID 32343).
Defendants are referred to in the Decision and hereinafter as the “OCPA Defendants.”
In their Joint Supplement, Plaintiffs allege that, in carrying out their assigned duties
under Ohio’s Execution Protocol, 01-COM-11, the OCPA Defendants will violate the federal
Controlled Substances Act (ECF No. 954, PageID 32344, ¶ 2138). In doing so, Plaintiffs allege
the OCPA Defendants will violate the Ohio Corrupt Practices Act, Ohio Revised Code §
2923.31, et seq., which they claim provides them with a private cause of action to enjoin such
violations. Id. This Court is asserted to have jurisdiction under 28 U.S.C. § 1367, supplemental
to its jurisdiction over Plaintiffs’ original claims under 42 U.S.C. § 1983. Id. at ¶ 2139.
The State Actor Defendants1 sought dismissal of the Forty-Ninth Cause of Action on the
grounds that (1) “pendent state law claims cannot be maintained against state actors unless and
until the Ohio Court of Claims determines that the state actor’s conduct was manifestly outside
the scope of their employment”; (2) the OCPA Defendants are entitled to qualified immunity; (3)
the Eleventh Amendment precludes assertion of this claim; and (4) the OCPA Defendants are
entitled to quasi-judicial immunity for the duties they are assigned in the Execution Protocol
(ECF No. 981, PageID 37073-78).
In dismissing the Forty-Ninth Cause of Action, the Court relied on the Moving
Defendants’ first argument (Decision, ECF No. 1088, PageID 42382-85, citing principally
Haynes v. Marshall, 887 F.3d 700 (6th Cir. 1989). The other arguments were not discussed.
Referred to sometimes in the Decision as Moving Defendants because they are the only Defendants thus far served
with process in this case
Cognizability and the Ohio Court of Claims
Plaintiffs’ request for reconsideration is largely based on their claim that Execution Team
Members 21, 31, and 32 are not state employees, but rather contractors with the State to perform
the work required of them under the Execution Protocol (Motion ECF No. 1090, PageID 4239899). Plaintiffs rely on Cameron v. Children’s Hosp. Med. Center, 131 F.3d 1167 (6th Cir. 1997),
in which the court held that a district court has authority, in deciding whether it has subject
matter jurisdiction, to consider the threshold question of whether defendants are state employees
for purposes of Ohio Revised Code § 2743.02(F). “If the defendants are state ‘employees’ for
purposes of this case, then the plaintiffs must present their claim to the Ohio Court of Claims
before proceeding in a court of general jurisdiction.” Id. at 1170.
The Cameron court, however, noted that contractors can also be employees within the
meaning of the Ohio Court of Claims statute. Ohio Revised Code § 109.36, cited by the
Cameron court, provides that the term “employee” includes
(b) A person that, at the time a cause of action against the person,
partnership, or corporation arises, is rendering medical, nursing,
dental, podiatric, optometric, physical therapeutic, psychiatric, or
psychological services pursuant to a personal services contract or
purchased service contract with a department, agency, or
institution of the state.
The Court presently has no evidence before it from which it could determine whether Execution
Team Member 21, 31, or 32 has a contract with the State of Ohio which fits or arguably fits that
This Court had relied on Haynes, supra., to insist that Plaintiffs must first obtain a ruling
from the Ohio Court of Claims before proceeding here. The Court had distinguished Davet v.
City of Cleveland, 456 F.3d 549 (6th Cir. 2006), and Williams v. Duke Energy Int’, Inc., 681 F.3d
788 (6th Cir. 2012), relied on by Plaintiffs, on the grounds that defendants in those cases
“although state actors for purposes of direct liability under 42 U.S.C. § 1983, were not arguably
entitled to immunity under Ohio Revised Code § 9.86.” (Decision, ECF No. 1088, PageID
In their Motion for Reconsideration, Plaintiffs again argue Davet and Williams are
pertinent, but they miss the point of the distinction the Decisions makes. The defendants in
Davet were the City of Cleveland, its Building & Housing Department, and a city employee.
These were all “state actors” – i.e., persons acting under color of state law for § 1983 purposes,
but plainly they were not even arguably employees of the State of Ohio. Similarly, none of the
parties in Williams was allegedly an employee of the State.
Haynes remains controlling law and was expressly followed in McCormick v. Miami
Univ., 693 F.3d 654 (6th Cir. 2012).
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 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.
693 F.3d at 665, quoting Haynes, 887 F.2d at 705. Reading Cameron and Haynes together, this
Court may determine, when appropriate evidence is offered, whether Team Members 21, 31, and
32 are state employees for purposes of the Ohio immunity statute. If they are so situated, the
Plaintiffs must first obtain a decision from the Ohio Court of Claims before proceeding. As it is
undisputed that Defendant Theodore is a state employee, Plaintiffs must certainly proceed agains
him in the Court of Claims. This seems likely to be a futile gesture, since the acts the OCPA
Defendants are expected to perform in carrying out executions under 01-COM-11 are
commanded by the Protocol.
Plaintiffs also claim filing in the Court of Claims would be futile because that court
cannot grant injunctive relief. Haynes contemplates that once a plaintiff has obtained a decision
by the Court of Claims that a state employee’s acts are outside the scope of employment, the
plaintiff can pursue individual liability claims in a court of general jurisdiction.
In support of their claims, Plaintiffs cite Wright & Miller, 17A Fed. Prac. & Proc.
Jurisdiction § 4211 for the proposition that “If a state closes its door to a particular class of
litigants or claims, a federal court, exercising diversity jurisdiction, cannot entertain as suit by
such a litigant or such a claim.” (Motion, ECF No. 1090, PageID 42401). But when a federal
court exercises supplemental jurisdiction under 28 U.S.C. § 1367, it must apply state law just as
if its original jurisdiction were in diversity. And Ohio law provides a cause of action under the
Corrupt Practices Act against state employees only if the Court of Claims has held they are not
The Eleventh Amendment
There is, however, a deeper problem with the Forty-Ninth Cause of Action, not discussed
in the Decision and that is the bar of the Eleventh Amendment to the United States Constitution
The judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State or by
Citizens or Subjects of any Foreign State.
It was adopted to overrule the very unpopular decision in Chisholm v. Georgia, 2 Dall. 419
(1793). It has been construed to bar suits against a State by its own citizens. Papasan v. Allain,
478 U.S. 265, 276 (1986); Hans v. Louisiana, 134 U.S. 1 (1890); Edelman v. Jordan, 415 U.S.
651 (1974); Florida Dep't. of State v. Treasure Salvors, Inc., 458 U.S. 670 (1982). The
Amendment also bars actions against state agencies where the State is the real party in interest.
Estate of Ritter v. University of Michigan, 851 F.2d 846, 848 (6th Cir. 1988); Ford Motor
Company v. Dep't. of Treasury of State of Indiana, 323 U.S. 459 (1945); Quern v. Jordan, 440
U.S. 332 (1979).
The Eleventh Amendment does not bar an action for injunctive relief against a state
officer for violations of the United States Constitution. Ex parte Young, 209 U.S. 123 (1908);
Cory v. White, 457 U.S. 85 (1982); Thomson v. Harmony, 65 F.3d 1314, 1320 (6th Cir. 1995).
However, the Amendment does bar an action to enjoin state officials from violating state law.
Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984).
Plaintiffs do not avoid the Eleventh Amendment bar by suing the Moving Defendants in
their individual capacities because in carrying out their duties under 01-COM-11, they will not
be acting in their individual capacities, but rather as agents of the State.
When suit is commenced against state officials, even if they are
named and served as individuals, the State itself will have a
continuing interest in the litigation whenever state policies or
procedures are at stake. This commonsense observation of the
State's real interest when its officers are named as individuals has
not escaped notice or comment from this Court, either before or
after Young. See, e.g., Osborn v. Bank of United States, 22 U.S.
738, 6 L. Ed. 204, 9 Wheat. 738, 846-847 (1824) (stating that
the State's interest in the suit was so "direct" that "perhaps no
decree ought to have been pronounced in the cause, until the State
was before the court") (Marshall, C. J.); Pennhurst State School
and Hospital v. Halderman, 465 U.S. 89, 114, n. 25, 79 L. Ed.
2d 67, 104 S. Ct. 900 (1984) (noting that Young rests on a
fictional distinction between the official and the State).
Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 269 (1997).
Because the Forty-Ninth Cause of Action seeks to enjoin the Moving Defendants, on the
basis of state law, from carrying out executions, this Court is barred by the Eleventh Amendment
from exercising jurisdiction over it.
Because the Eleventh Amendment bar prevents this Court from exercising jurisdiction
over the Forty-Ninth Cause of Action, the Court will not discuss the Moving Defendants
qualified immunity and quasi-judicial immunity defenses to the Forty-Ninth Cause of Action.
Having reconsidered the Decision as to the Forty-Ninth Cause of Action, the order
dismissing that claim without prejudice to its reassertion in the Ohio Court of Claims is
WITHDRAWN. In place of that portion of the Decision, the Court now orders that the FortyNinth Cause of Action be dismissed without prejudice for lack of subject matter jurisdiction by
virtue of the Eleventh Amendment.
In the Motion for Reconsideration, Plaintiffs Tibbetts and Otte ask the Court to certify the
relevant portion of its Order on the Forty-Ninth Cause of Action for an interlocutory appeal. 28
U.S.C. § 1292(b) provides that a district judge who is of the opinion that an order involves a
controlling question of law as to which there is a substantial ground for difference of opinion and
that an immediate appeal from the order may materially advance the ultimate termination of the
litigation may state that opinion in the order and the circuit court may then allow an appeal. The
undersigned assumes this authority extends to a Magistrate Judge exercising plenary jurisdiction
under 28 U.S.C. § 636(c).
The Court does not have the opinion required by § 1292(b), but is prepared to enter a
judgment on the Forty-Ninth Cause of Action under Fed. R. Civ. P. 54 if requested by a party.
July 17, 2017.
s/ Michael R. Merz
United States Magistrate Judge
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