In Re: Ohio Execution Protocol Litigation

Filing 1238

MEMORANDUM AND OPINION denying ex parte motion for temporary restraining order. Signed by Magistrate Judge Michael R. Merz on 09/16/2017. (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 Plaintiff Otte

MEMORANDUM MEMORIALIZING EX PARTE MOTION FOR
TEMPORARY RESTRAINING ORDER AND DECISION DENYING
THE MOTION

The execution of Plaintiff Gary Otte was scheduled to commence at 10:00 A.M. on
Wednesday, September 13, 2017. At 10:48 A.M., the following colloquy occurred between the
Court and Attorneys Allen Bohnert and Carol Wright:
THE COURT: We're on the record in Case Number 2-11-cv-1016.
The Court is in receipt of a telephone call from Allen Bohnert,
counsel for the petitioner and Plaintiff, Gary Otte 1. The execution,
Mr. Bohnert reports, is in progress. Mr. Bohnert, you're on the
record.
MR. BOHNERT: Yes, your Honor. I'm getting reports from Carol
Wright who is witnessing that she was prevented for at least one
and a half minutes from actually making the phone call to the
family waiting room from the death house. I am in the family
waiting room. She is witnessing in the death house. She is

1

Mr, Otte was a Plaintiff in this case. The Court referred to him as a “petitioner” because he was undoubtedly a
petitioner in a habeas corpus case challenging his conviction and death sentence, albeit not in this Court.

1

reporting that there were signs that Mr. Otte was conscious, crying,
clenching of the hands, heaving at the stomach.
MS. WRIGHT: Heaving (inaudible) at his sides.
MR. BOHNERT: That was Ms. Wright. Things of that nature. Like
I said, she was prevented from making a phone call to this room to
this number for at least a minute and a half. At this point it's not
known whether the paralytic has already been injected. At this
point we would ask the Court enter an emergency TRO prohibiting
the State from further injecting any other drugs, particularly if
they've not injected the paralytic already.
MS. WRIGHT: Judge, this is Carol Wright. What I'm seeing now
is no movement of the stomach, no movement of the hands, no
movement at all. The left hand is unclenched and somewhat
relaxed. I'm not certain whether the paralytic, I'm guessing the
paralytic has been put on board. The curtain has not been closed
yet though.
THE COURT: There's no one from the Ohio Department of
Rehabilitation and Correction on the line, either counsel or one of
the Defendants in the case, is that correct?
MR. BOHNERT: That is correct, your Honor. We are not
permitted that ability. We are only provided a telephone line from
the death house, a dedicated line specifically to the family waiting
room where I had to call you from a different phone.
THE COURT: The motion for emergency Temporary Restraining
Order is denied. Anything else for the record?
MR. BOHNERT: It's not clear to me whether the consciousness
checks were in fact done.
MS. WRIGHT: I believe that they were coming in to do the
consciousness checks as I was trying to get someone to let me out.
We were locked in the witness room. They now are bringing
someone in to check for heart and lung signs. The curtain is still
open.
2

MR. BOHNERT: Your Honor, if I might ask, is there a particular
basis on which the Court denied the request?
THE COURT: Opinion may follow.
MS. WRIGHT: They're still checking. One man is checking for the
lung sounds with a stethoscope. I'm still on the outside looking
through the window. The man is just leaving. I'm going to hang up
and go back in if they'll let me in. Are they going to let me? Thank
you. Okay.
MR. BOHNERT: Okay. At this point I don't know whether we
need to remain on the line with your Honor or if your Honor would
-THE COURT: I am prepared to keep a line open, Allen, if you
wish or to allow you to attend to other matters without being on the
line. Your choice.
MR. BOHNERT: We'll hang up for the time being but if other
matters present themselves, then we would be immediately in
touch with your Honor, I guess.

(Unfiled transcript prepared by Official Court Reporter Debra Futrell from stenographic notes
made during the telephone call.)
During a telephone conference call with counsel for both sides later on September 13, the
Court advised Defendants of the above colloquy and Mr. Bohnert and Ms. Wright adopted their
statements to the Court under oath. Mr. Bohnert made it clear that his statements had been
hearsay, reporting to the Court what he had heard from Ms. Wright, who was actually witnessing
the execution.
Fed. R. Civ. P. 65(b) provides in pertinent part:
(b) TEMPORARY RESTRAINING ORDER.

3

(1) Issuing Without Notice. The court may issue a temporary
restraining order without written or oral notice to the adverse party
or its attorney only if:
(A) specific facts in an affidavit or a verified complaint clearly
show that immediate and irreparable injury, loss, or damage will
result to the movant before the adverse party can be heard in
opposition; and
(B) the movant's attorney certifies in writing any efforts made to
give notice and the reasons why it should not be required.

Under the exigent circumstances in which they were acting, Mr. Bohnert and Ms. Wright
complied with Fed. R. Civ. P. 65(b) to the maximum extent possible. They obviously could not
take the time to reduce their testimony to written form and the arrangements at SOCF precluded
their bringing Defendants’ counsel into the matter.
The Court denied the requested temporary restraining order for two reasons.
First of all, the facts as recited by Mr. Bohnert did not provide evidence that Mr. Otee
was experiencing unconstitutionally severe pain beyond the evidence heard by the Court at the
January 2017 preliminary injunction hearing in this case of what occurred in other executions
since January 2014 where midazolam was used as the first drug in a three-drug execution
protocol. While this Court, a panel majority at the Sixth Circuit, and Supreme Court Justices
Sotomayor and Ginsburg believed that evidence was sufficient to warrant a preliminary
injunction pending trial on the merits, a majority of the en banc Sixth Circuit disagreed. Fears v.
Morgan (In re: Ohio Execution Protocol), 860 F.3d 881 (6th Cir. Jun. 28, 2017)(en banc). The
law of the case is thus that the type of behavior of a person who has been injected with
midazolam reported here by Ms. Wright through Mr. Bohnert is not sufficient to warrant
preliminary injunctive relief.
4

Second, it appeared to the Court that granting Plaintiff’s motion would be a vain act.
From Ms. Wright report, it appeared that Mr. Otte’s behavior alleged to evidence suffering had
ceased and therefore either the midazolam had had its intended effect or the paralytic drug had
already been injected. Assuming its accuracy, the Otte Execution Timeline confirms this timing.
According to the timeline, Syringe #3, the first syringe with the paralytic drug, was started to be
administered at 10:43:23 and was completed about a minute later; Syringe #4 was started at
10:44:34 and completed about a minute after that. Thus the acts sought to be enjoined had
already been completed before Plaintiff sought to enjoin them. While the Court did not have the
timeline until the afternoon of September 13, its content supports the inference the Court drew
from Ms. Wright’s report.

September 16, 2017.
s/ Michael R. Merz
United States Magistrate Judge

5