In Re: Ohio Execution Protocol Litigation

Filing 1128

DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR A SCHEDULING ORDER 1047 signed by Magistrate Judge Michael R. Merz on 7/31/2017. (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 all Plaintiffs
except Tibbetts, Otte, and Campbell

DECISION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS’ MOTION FOR A SCHEDULING ORDER

This case is before the Court on Motion of Defendants for a Scheduling Order (ECF No.
1047), Plaintiffs’ Response (ECF No. 1058), Defendants’ Reply (ECF No. 1063), and Plaintiffs’
Sur-Reply (ECF No. 1084).
A draft of this order was circulated early on July 31, 2017, to the attorneys who have been
participating in regular telephonic scheduling conferences in this case since October 3, 2016.
Lead Plaintiffs’ attorney Allen Bohnert made the point that not all Plaintiffs’ counsel would have
received the draft, but only those expected to participate in the conference. The Court notes that
all counsel have been served with Defendants’ Motion and there have been no filings in response
except those noted above. Nonetheless, it is hereby ORDERED that any Plaintiff whose counsel
did not participate in the status conference may file objections to the Order not later than noon on
August 3, 2017.
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Since Defendants’ Motion was filed on May 23, 2017, the following events of significance to
scheduling have occurred:
1. On June 26, 2017, the Sixth Circuit decided Fears v. Morgan (In re: Ohio Execution
Protocol), 860 F.3d 881 (6th Cir. 2017)(en banc), which vacated this Court’s preliminary
injunction enjoining the executions of Ronald Phillips, Gary Otte, and Raymond Tibbetts.
The Supreme Court denied certiorari, Otte v. Morgan, 2017 U.S. LEXIS 4327 (July 25,
2017), and Phillips was executed on July 26, 2017.
2. This Court has granted in part and denied in part Defendants’ Motion to Dismiss the
Fourth Amended Complaint of Plaintiffs Tibbetts and Otte, albeit without entering
judgment (ECF No. 1088).
3. This Court has also dismissed Plaintiffs Tibbetts and Otte’s Joint Supplemental
Complaint raising their Forty-Ninth Cause of Action under the Ohio Corrupt Practices
Act. Here the Court did enter judgment, on Plaintiffs’ request and over Defendants’
objections (ECF No. 1120).
4. The Sixth Circuit has, in a divided opinion, found Plaintiff Tibbetts’ second-in-time
habeas corpus petition to be second-or-successive and dismissed it. In re: Raymond
Tibbetts, Case No. 17-3609, 2017 U.S. App. LEXIS 13664 (6th Cir. July 24, 2017). Both
the majority and dissenting opinions have language which is relevant to the interpretation
of Adams v. Bradshaw, 826 F.3d 306 (6th Cir. 2016)(“Adams III”) and its application to
this case and the habeas corpus proceedings most of the Plaintiffs have pending.

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In light of these developments, the Court finds it appropriate to enter a scheduling order,
albeit on dates which represent compromises between the dates proposed by the parties. It is
hereby ORDERED:
1. Plaintiffs other than Tibbetts, Otte, and Campbell shall file their Fourth Amended
Omnibus Complaint not later than September 1, 2017. With respect to each claim for
relief pleaded therein, Plaintiffs shall indicate to which claims made in the Fourth
Amended Complaints of Plaintiffs Tibbetts, Otte, and Campbell the particular claim is
parallel. Plaintiffs shall file their amended individual supplemental complaints related to
the October 7, 2016, execution protocol not later than October 1, 2017. (If Defendants
have not provided the “supplemental medical and mental health records in Ohio’s
possession” referred to at EFC No. 1058, PageID 40684 by September 25, 2017, the
Court will consider an extension of time.)
2. As soon as they reasonably become available and in any event not later than 210 days
before any Plaintiff’s scheduled execution, Defendants shall provide to that Plaintiff’s
counsel any supplemental medical and mental health records of that Plaintiff not
theretofore produced.

Each such Plaintiff shall then file his motion to amend or

supplement his individual complaint not later than thirty days after such records are
produced.
3. Nothing herein shall be construed to contravene the holding of the Sixth Circuit in Cooey
v. Strickland, 479 F.3d 412 (6th Cir. 2007), and Cooey v. Strickland, 588 F.3d 921 (6th
Cir. 2009), that any claim based on changes in Ohio’s execution protocol will arise on the
date those changes are made and that the two-year statute of limitations for claims under
42 U.S.C. § 1983 will run from that date.

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4. Defendants shall file their answer to the Fourth Amended Omnibus Complaint not later
than October 1, 2017. Answers to any other amended or supplemental complaints herein
shall be filed within the time provided in Fed. R. Civ. P. 15(a)(3).
5. Any party may file a motion for summary judgment not later than November 1, 2017.
Memoranda in opposition and reply memoranda in support shall be filed on the schedule
set in S.D. Ohio Civ. R. 7.2.

July 31, 2017.
s/ Michael R. Merz
United States Magistrate Judge

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