In Re: Ohio Execution Protocol Litigation

Filing 1120

DECISION AND ORDER ON SECOND RECONSIDERATION OF DECISION ON MOTION TO DISMISS AS TO FORTY-NINTH CAUSE OF ACTION. Signed by Magistrate Judge Michael R. Merz on 7/25/2017. (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 ON SECOND RECONSIDERATION OF
DECISION ON MOTION TO DISMISS AS TO FORTY-NINTH
CAUSE OF ACTION

This case is before the Court on the oral motion of Plaintiffs Tibbetts and Otte that the
Court reconsider a second time its Decision and Order (ECF No. 1088)1 dismissing the FortyNinth Cause of Action pleaded in the Joint OCPA Supplement (ECF No. 954) (the “Decision”).
Plaintiffs filed a memorandum in support of reconsideration (ECF No. 1110) and Defendants
have responded (ECF No. 1116).
Defendants assert the request to reconsider again does not meet the standards of either
Fed. R. Civ. P. 59(e) or of Fed. R. Civ. P. 60. Those Rules do not apply because the decision is
interlocutory, i.e., not post-judgment.

The Court therefore has authority to reconsider it.

Prejudgment orders remain interlocutory and can be reconsidered at any time. Moore’s Federal
Practice at ¶0.404.

1

Reported at In re: Ohio Execution Protocol Litigation (Tibbetts & Otte), 2017 U.S. Dist. LEXIS 107468 (S.D.
Ohio Jul 12, 2017)

1

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, PageID 32343, ¶ 2135).

These

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). Plaintiffs allege that by doing
so, 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 over the Forty-Ninth Cause of Action
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 Defendants 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 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.

2

Cognizability and the Ohio Court of Claims

Plaintiffs’ first request for reconsideration was 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 42398-99). 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 parties have presented additional argument and evidence on the question whether
Team Members 21, 31, and 32 are immune from liability because they come within this statute.
First Plaintiffs note that all three are undisputedly acting under personal service contracts (ECF
No. 1110, PageID 42943). Noting their deposition testimony about the capacities in which they
3

perform under the Execution Protocol, Plaintiffs argue these persons cannot be performing
medical services. Plaintiffs proceed to attempt to prove that what these team members do is not
the provision of medical services because it is not intended for the “prevention, alleviation, [or]
cure of disease,” i.e., it is not therapeutic. Id. at 42944. Further, these team members admit that
what they do during an execution does not serve a therapeutic purpose and they are not
practicing their respective professions in participating in executions. Id. at 42945-46. They cite
expert testimony from earlier in this case for what is a self-evident proposition: a lethal injection
execution is not a “medical” procedure within the dictionary or professional definition of
medicine.
The Court disagrees with Plaintiffs’ interpretation of the statute. While no one should
pretend that a lethal injection execution is in any way therapeutic, there are obvious “medical”
aspects to it that are better performed by persons with skill and training that is more accurately
called “medical” than anything else.

Certainly the establishing and maintenance of an

intravenous line and the administration of drugs through that line are processes likely to benefit
from the experience and training of EMT’s or paramedics. The State’s obligation to administer
lethal injections pursuant to 01-COM-11 as interpreted by prior orders of this Court makes the
use of persons with those skills and that training prudent if not mandatory.
In interpreting a statute a court should:
1. Decide what purpose ought to be attributed to the statute and to
any subordinate provision of it which may be involved; and then
2. Interpret the words of the statute immediately in question so as
to carry out the purpose as best it can, making sure, however, that
it does not give the words either (a) a meaning they will not bear,
or (b) a meaning which would violate any established policy of
clear statement.

4

Hart and Sacks, THE LEGAL PROCESS (Eskridge & Frickey ed. 1994), p. 1169. “It is one of the
surest indexes of a mature and developed jurisprudence not to make a fortress out of the
dictionary; but to remember that statutes always have some purpose or object to accomplish,
whose sympathetic and imaginative discovery is the surest guide to their meeting.” Cabell v.
Markham, 148 F.2d 737, 739 (2nd Cir. 1945)(L. Hand, J.) The Court can discern no arguable
purpose of the General Assembly to exclude persons performing services such as Team
Members 21, 31, and 32 are contracted to perform from the reach of Ohio Revised Code §
109.36.
In the Decision, the Court relied on Haynes, supra., to insist that Plaintiffs must first
obtain a ruling from the Ohio Court of Claims before proceeding here. The Court 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
42384.)
In their Motion for Reconsideration, Plaintiffs again argued Davet and Williams were
pertinent, but missed the point of the distinction the Court made: 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).

5

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 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 and
Team Member 17 are state employees, Plaintiffs must certainly proceed against them 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 which would have
equity power.
In support of their claims, Plaintiffs cite Wright & Miller, 17A Fed. Prac. & Proc.
Jurisdiction § 4211 for the proposition that “[i]f a state closes its door to a particular class of
litigants or claims, a federal court, exercising diversity jurisdiction, cannot entertain a 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
6

Corrupt Practices Act against state employees only if the Court of Claims has held they are not
immune.
The Court concludes that Team Members 21, 31, and 32 are employees of the State of
Ohio for purposes of Ohio Revised Code § 109.36(B) who are not liable to Plaintiffs under the
Ohio Corrupt Practices Act without a prior ruling from the Ohio Court of Claims. Plaintiffs
concede that Defendants Theodore and Team Member 17 are state employees. They are also not
liable under OCPA without a prior ruling from the Court of Claims.

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. The Court first made an
Eleventh Amendment analysis in the Decision and Order on Reconsideration which elicited the
second request for reconsideration (ECF No. 1099).
The Eleventh Amendment to the United States Constitution provides:
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
7

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 OCPA 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 OCPA Defendants, on the
basis of state law, from carrying out executions, this Court is barred by the Eleventh Amendment
from exercising jurisdiction over that claim for relief.

8

Because the Eleventh Amendment bar prevents this Court from exercising jurisdiction
over the Forty-Ninth Cause of Action, the Court will not discuss the OCPA Defendants’
qualified immunity and quasi-judicial immunity defenses to the Forty-Ninth Cause of Action.
In their Supplemental Briefing, Plaintiffs rely on Hafer v. Melo, 502 U.S. 21 (1991), and
Hardin v. Straub, 954 F. 2d 1193 (6th Cir. 1992), for the proposition that, in deciding the
Eleventh Amendment issue, the Court must focus on the capacity in which the OCPA
Defendants are sued and not the capacity in which they act “when they violate the law.” (ECF
No. 1110, PageID 42930.) In Hafer the Supreme Court held that state officials sued in their
individual capacities could be held liable under 42 U.S.C. § 1983 and the Eleventh Amendment
did not bar such a suit. Hardin is to the same effect. But in the Forty-Ninth Cause of Action,
Plaintiffs do not seek relief against state officials in their individual capacity for violations of the
Constitution as in a § 1983 case, but for violations of the Ohio Corrupt Practices Act.
In their prior filings, Plaintiffs emphasized their need for injunctive relief on this claim;
in their most recent filings, they have spoken of damages as well. Any claim they might have for
damages has plainly not yet arisen because they have not yet been executed by a method they
claim is criminal.2
Of course, Plaintiffs have not backed away from their prayer for injunctive relief. The
Court held previously that injunctive relief to enforce a state statute, the OCPA, was barred by
Pennhurst, supra. Plaintiffs assert this was error and that Pennhurst only bars injunctive relief
against the OCPA Defendants in their official capacities (Supplemental Briefing, ECF No. 1110,
PageID 42932). The distinction is not there. The Pennhurst Court held
A federal court's grant of relief against state officials on the basis
of state law, whether prospective or retroactive, does not vindicate
2

The Court offers no opinion on whether a damages claim would survive the execution.

9

the supreme authority of federal law. On the contrary, it is difficult
to think of a greater intrusion on state sovereignty than when a
federal court instructs state officials on how to conform their
conduct to state law. Such a result conflicts directly with the
principles of federalism that underlie the Eleventh Amendment.
465 U.S. at 106. The Court expressly refused, over Justice Stevens’ dissent, to extend the legal
fiction of Ex Parte Young to the situation where injunctive relief was sought on the basis of
violation of state law. Id. at 107. The Pennhurst Court also disposes of Plaintiffs’ claim that
pendent or supplemental jurisdiction overcomes the bar of the Eleventh Amendment.
The Decision on Reconsideration also relied on Idaho v. Coeur d’Alene Tribe of Idaho,
521 U.S. 261 (1997). Plaintiffs attempt to distinguish Coeur d’Alene on the ground that it
requires a finding that a case implicates special sovereign interests (Supplemental Briefing, ECF
No. 1110, PageID 42935, et seq., citing Martin v. Taft, 222 F. Supp. 2d 940 (S.D. Ohio
2002)(Smith, J.)). Plaintiffs conclude “[n]one of the special sovereign interests recognized by
the courts and enumerated in Martin are implicated in this entire case . . .,” and Plaintiffs . . . are
not asking the Court to enjoin the State from carrying out executions on the basis of these
claims.” (ECF No. 1110, PageID 42937.)
To the contrary, it is difficult to imagine an action more directly implicating a State’s
sovereignty than carrying out an execution pursuant to a court’s judgment. Of course none of the
special sovereign state interests in real property enumerated in Martin are involved here. One
would hardly have expected a listing of the carrying out of executions in a case involving
property interests.
Plaintiffs’ position would have the Court exalt form over fiction. The gravamen of
Plaintiffs’ claims in the Forty-Ninth Cause of Action is that the five OCPA Defendants by
carrying out an execution in conformity to 01-COM-11 will have violated the OCPA by violating
10

federal law. The claim is not focused on any expected aberrant behavior of these five individuals
taken as individuals. For example, there is no allegation that Team Member X always does IV
lines wrong. Thus if these five Defendants were enjoined on Plaintiffs’ theory, it might well be
expected that exactly the same claim would be asserted against Team Member Y when he took
Team Member X’s place. It is thus disingenuous to assert that it is not the State which is sought
to be enjoined here.

Conclusion

Having reconsidered the matter twice, the Court adheres to its prior conclusions:
1.

Plaintiffs cannot proceed against the OCPA Defendants on their Forty-Ninth Cause of

Action without first obtaining permission from the Ohio Court of Claims. Absent permission
from that Court, their Forty-Ninth Cause of Action is dismissed without prejudice for failure to
state a claim upon which relief can be granted.
2.

Plaintiffs’ Forty-Ninth Cause of Action is barred by the Eleventh Amendment and is

therefore dismissed without prejudice for lack of subject matter jurisdiction.

Entry of Judgment
Plaintiffs request that if the Forty-Ninth Cause of Action is dismissed, “the Court enter a
judgment on that claim” (Supplemental Briefing, ECF No. 1110, PageID 42950). Defendants
oppose entry of judgment, relying on Corrosioneering, Inc., v. Thyssen Environmental Systems,
Inc., 807 F.2d 1279 (6th Cir. 1986). That court wrote:
A nonexhaustive list of factors which a district court should
consider when making a Rule 54(b) determination includes:
11

(1) the relationship between the adjudicated and
unadjudicated claims; (2) the possibility that the need for
review might or might not be mooted by future
developments in the district court; (3) the possibility that
the reviewing court might be obliged to consider the same
issue a second time; (4) the presence or absence of a
claim or counterclaim which could result in set-off against
the judgment sought to be made final; (5) miscellaneous
factors such as delay, economic and solvency
considerations, shortening the time of trial, frivolity of
competing claims, expense, and the like. Depending upon
the facts of the particular case, all or some of the above
factors may bear upon the propriety of the trial court's
discretion in certifying a judgment as final under Rule
54(b).
Id. at 1283.
Applying the listed factors, the Court finds that the two issues decided herein – the
requirement of an Ohio Court of Claims’ decision before proceeding against the OCPA
Defendants and the Eleventh Amendment bar – are separate from the unadjudicated claims
which are constitutional claims being litigated under 42 U.S.C. § 1983.
These two Plaintiffs are set for execution on September 13, 2017 (Otte) and October 18,
2017 (Tibbetts). They were co-movants with Plaintiff Ronald Phillips for preliminary injunctive
relief from those executions, which relief was denied in In re: Ohio Execution Protocol Litig.
(Otte v. Morgan), ___ F. 3d ___, 2017 U.S. App. LEXIS 11491 (6th Cir. Jun. 28, 2017)(en
banc).3 The Forty-Ninth Cause of Action does not overlap with claims made in the prior
preliminary injunction motion and apparently represents a major intended thrust of Plaintiffs’
litigation strategy to prevent their execution. Thus the claim will become moot if they are both
executed in the next three months, but it is not likely to be mooted by further action in this Court.
3

As of this writing, a request for stay of execution and for a writ of certiorari is pending before the United States
Supreme Court, Case No. 17-5198.

12

Since Plaintiffs’ Forty-Ninth Cause of Action is not particular to these two Plaintiffs or to
the particular persons who fill the positions in the execution team which they occupy, it is
entirely possible, indeed likely since the same counsel are involved, that the same claims will be
made on behalf of other plaintiffs. Thus the reviewing court may have to decide the issues again.
However, a decision upholding the dismissal may dissuade other plaintiffs from pleading these
claims; a decision either way will be instructive for this Court.
Defendants oppose certification because they say there is doubt whether a ruling would
“necessarily bind the other Plaintiffs under the law-of-the-case doctrine.” (Response, ECF No.
1116, PageID 43027.) That is because this is a consolidated case. Be that as it may, a circuit
court ruling on these two issues, even if not technically binding in a law-of-the-case or res
judicata sense, will nonetheless be very instructive. Defendants assert the claim is frivolous, but
that has not prevented the parties from filing hundreds of pages of briefing just to resolve these
two issues. A circuit court ruling would or at least could substantially reduce the burden of
dealing with these claims when made on behalf of other co-plaintiffs.
Accordingly, the Clerk is directed to enter judgment dismissing the Forty-Ninth Cause of
Action without prejudice for failure to state a claim upon which relief can be granted and for lack
of subject matter jurisdiction. The Court expressly determines that there is no just reason to
delay that judgment and the consequent expected appeal.4
July 25, 2017.
s/ Michael R. Merz
United States Magistrate Judge

4

Because Plaintiffs Otte and Tibbetts and the Ohio Defendants with respect to those two Plain tiffs have
unanimously consented to plenary magistrate judge jurisdiction under 28 U.S.C. § 636(c), the undersigned has
authority to order the entry of judgment.

13