In Re: Ohio Execution Protocol Litigation

Filing 1200

ORDER -. Signed by Magistrate Judge Michael R. Merz on 9/3/2017. (MRM)

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
Otte, Tibbetts, and Campbell

DECISION AND ORDER DENYING PLAINTIFFS TIBBETTS AND
CAMPBELL LEAVE TO JOIN PLAINTIFF OTTE’S PRELIMINARY
INJUNCTION MOTIION

This § 1983 capital case is before the Court on Plaintiffs Tibbets and Campbell’s Notice
of Joining Plaintiff Otte’s Preliminary Injunction Motion (ECF No. 1190). In that document,
Tibbetts and Campbell tell the Court first that they “will jointly present evidence in support of
that motion at the hearing this Court has scheduled for September 6, 2017,” and then announce
that by joining Otte’s motion, “they do not waive their right to assert other arguments in favor of
a preliminary injunction, including those already raised (see Campbell’s Preliminary Injunction
Motion, ECF No. 1163).
Tibbetts has already had a hearing on a prior motion for preliminary injunction. When
asked at the telephone scheduling conference of August 29, 2017, whether he was going to file
another such motion, his counsel essentially said he had not yet made up his mind. He certainly
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did not seek leave of court to join in Otte’s motion or to reserve for himself some part of the one
day set aside for this hearing to present evidence on how own behalf.
From the way the Notice of Joining is written, the Court infers that Tibbetts is seeking, by
joining Otte’s Motion to obtain injunctive relief for himself. This the Court will not permit.
Tibbetts has not filed a second motion for preliminary injunction nor has he sought a hearing
date for such a motion. He cannot by “notice” commandeer part of a one-day hearing set for
another inmate on less than a week’s notice. Nor can he, by joining in Otte’s motion, thereby
acquire some leverage to extend the hearing or present evidence of his own. The Court, of
course, has no objection to Tibbetts’ saying that he supports Otte’s request for relief, but he is
simply too late to just “join in” on his own behalf. Because the Governor reprieved Tibbets’
execution date from October 2017 to February 2018, he will have an opportunity to file his own
second preliminary injunction motion, the deadline for which the Court will set shortly.
Part of the Court’s concern relates to time. Assuming the Otte hearing concludes as
planned at 5:00 p.m. on Wednesday, September 6, 2017 (the earliest date requested by Otte’s
counsel), there will be only 161 hours left until Otte’s scheduled execution. The entire judicial
decision process – district court decision plus appellate process plus application fo certiorari –
must be compressed into that time. Adding additional parties, evidence, and claims to that
process is completely unworkable with that time frame. The fact that Otte’s co-counsel, Ms.
Werneke, has signed the Notice of Joining has no impact on this time compression issue.
Alva Campbell was not a party to the preliminary injunction proceeding in January 2017.
Although he has filed his own separate Motion for Preliminary Injunction (ECF No. 1163) in
anticipation of his scheduled execution date of November 15, 2017, he has not yet sought or been
given a hearing date on that Motion. In joining Otte’s Motion, he has expressly said he wants to

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be heard further on his own arguments (ECF No. 1190, PageID 44465). He is not entitled to two
preliminary injunction hearings. He also may not commandeer a part of Otte’s short hearing by
presenting evidence on his own behalf.
Tibbetts and Campbell are free to support Otte’s bid for injunctive relief. Because Otte’s
claims are directed to the Execution Protocol in a way that would impact Tibbetts and Campbell
as well, so a victory for him would redounded to their benefit. But they may not piggyback on
Otte’s hearing to seek relief for themselves.

September 3, 2017.
s/ Michael R. Merz
Michael R. Merz
United States Magistrate Judge

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