In Re: Ohio Execution Protocol Litigation

Filing 316

ORDER memorializing the 8/8/12 Telephone Status Conference: terminating 220 Motion to Dismiss for Failure to State a Claim; terminating 221 Motion to Dismiss for Failure to State a Claim; terminating 222 Motion to Dismiss for Failure to State a Claim; terminating 223 Motion to Dismiss for Failure to State a Claim; terminating 225 Motion to Dismiss for Failure to State a Claim; terminating 226 Motion to Dismiss for Failure to State a Claim; terminating 227 Motion to Dismiss for Failure to State a Claim; terminating 228 Motion to Dismiss for Failure to State a Claim; terminating 229 Motion to Dismiss for Failure to State a Claim; terminating 230 Motion to Dismiss for Failure to State a Claim; terminating 233 Motion for Judgment on the Pleadings; withdrawing 234 Motion for Judgment on the Pleadings; terminating 235 Motion for Judgment on the Pleadings; terminating 236 Motion for Judgment on the Pleadings; terminating 237 Motion for Judgment on the Pleadings; terminating 239 Motion for Judgment on the Pleadings; terminating 240 Motion for Judgment on the Pleadings; terminating 243 Motion for Judgment on the Pleadings; terminating 244 Motion for Judgment on the Pleadings; terminating 246 Motion for Judgment on the Pleadings; granting 315 Motion to Stay; terminating 194 Motion to Dismiss for Failure to State a Claim; terminating 195 Motion to Dismiss for Failure to State a Claim; terminating 196 Motion to Dismiss for Failure to State a Claim; terminating 197 Motion to Dismiss for Failure to State a Claim; terminating 198 Motion to Dismiss for Failure to State a Claim; terminating 199 Motion to Dismiss for Failure to State a Claim; terminating 200 Motion to Dismiss for Failure to State a Claim; terminating 201 Motion to Dismiss for Failure to State a Claim; terminating 202 Motion to Dismiss for Failure to State a Claim; terminating 203 Motion to Dismiss for Failure to State a Claim; terminating 204 Motion to Dismiss for Failure to State a Claim; terminating 205 Motion to Dismiss for Failure to State a Claim; terminating 206 Motion to Dismiss for Failure to State a Claim; terminating 207 Motion to Dismiss for Failure to State a Claim; terminating 208 Motion to Dismiss for Failure to State a Claim; terminating 209 Motion to Dismiss for Failure to State a Claim; terminating 210 Motion to Dismiss for Failure to State a Claim; terminating 211 Motion to Dismiss for Failure to State a Claim; terminating 212 Motion to Dismiss for Failure to State a Claim; terminating 213 Motion to Dismiss for Failure to State a Claim; terminating 214 Motion to Dismiss for Failure to State a Claim; terminating 215 Motion to Dismiss for Failure to State a Claim; terminating 216 Motion to Dismiss for Failure to State a Claim; terminating 217 Motion to Dismiss for Failure to State a Claim; terminating 218 Motion to Dismiss for Failure to State a Claim; terminating 219 Motion to Dismiss for Failure to State a Claim. Signed by Judge Gregory L Frost on 8/12/13. (sem1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

IN RE: OHIO EXECUTION
PROTOCOL LITIGATION

Case No. 2:11-cv-1016
JUDGE GREGORY L. FROST
Magistrate Judge Mark R. Abel

This document relates to: All Parties.

ORDER
On August 8, 2013, this matter came on for a telephone status conference at the request
of Defendants. During this conference, Defendants’ counsel informed both this Court and
Plaintiffs’ liaison counsel, as well as other counsel for various plaintiffs, that the State of Ohio
would likely adopt an amended execution protocol no later than October 4, 2014. Defendants
indicated that this new protocol will therefore not apply to the September 25, 2013 scheduled
execution of Harry D. Mitts, Jr., who is not a party to this litigation.1 Defendants stated that the
new protocol would apply to the November 14, 2013 scheduled execution of Ronald Phillips,
who is a plaintiff in this litigation. The Court commends Defendants for their candor.

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Mitts was a named plaintiff in the original omnibus complaint. (ECF No. 4 ¶¶ 322-28.)
The amended omnibus complaint, however, dropped Mitts as a named plaintiff in this litigation.
(ECF No. 158.) Despite his lack of inclusion in the operative omnibus complaint, Defendants
included him in their motion to dismiss the amended omnibus complaint. (ECF No. 194, at Page
ID # 7200.) This apparent scrivener’s error unfortunately matches the Court’s electronic docket,
which has failed to reflect that Mitts is longer a party to this action. The Clerk shall correct the
docket and designate Mitts as no longer a party to this action as of the date of the filing of the
amended omnibus complaint, January 7, 2013.
The Court notes that the Clerk has also incorrectly retained the designation of Stephen
Gray as the lead attorney for Defendants on the docket, despite the May 8, 2013 Notice of
Substitution of Lead and Trial Counsel and Termination of Counsel. (ECF No. 295.) The Clerk
shall correct the docket to reflect the changes effectuated by the notice of substitution.

This information raises the issue of what is to be done, if anything, with the pending
motions to dismiss and motions for judgment on the pleadings. (ECF Nos. 194, 195, 196, 197,
198, 199, 200, 201, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216,
217, 218, 219, 220, 221, 222, 223, 225, 226, 227, 228, 229, 230, 233, 234, 235, 236, 237, 239,
240, 241, 243, 244, 246.) All of these motions target complaints that relate to the current
protocol. Previously, Plaintiffs sought to obtain a stay of consideration of these motions on the
grounds that “there is indisputably a substantial likelihood that Ohio will need to adopt [a new
protocol] . . . [a]nd that, in turn, will ultimately require amendment of Plaintiffs’ complaints in
this action, making it unnecessary of the Court to devote valuable judicial time and resources to
considering and adjudicating Defendants’ pending dispositive motions at this time.” (ECF No.
296, at Page ID # 8879-80.) Although this Court suspected that Plaintiffs were correct, the Court
was not inclined to delay consideration of the motions absent something more concrete than a
probability, however likely, that a new protocol would be adopted. The Court therefore denied
Plaintiffs’ motion for a stay. (ECF No. 307.)
Plaintiffs have now filed a renewed motion to stay consideration of Defendants’ motions,
arguing that Defendants’ statements regarding a new protocol present changed circumstances
that warrant revisiting the stay decision. (ECF No. 315.) It appears that Defendants take no
position on this request. (Id. at Page ID # 9080.)
Time and again throughout the various permutations of this protocol litigation, each new
protocol has given rise to new allegations and often new pleading, generally followed by new
motions seeking the dismissal of or judgment on the new pleading. In the four main predecessor
cases to the captioned case, for example, the adoption of a new protocol rendered moot various

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motions for summary judgment. (ECF No. 970 in Case No. 2:04-1156, at Page ID # 26356.)
Consequently, the Court recognized the motions as moot, declined to address them, and
permitted new motions practice following adoption of that new protocol. (Id. at 26356-57.)
This same rationale informs the current situation. Rather than continuing to work on the
pending motions, the Court elects to stay consideration of Defendants’ motions. To do otherwise
in the face of an upcoming protocol change would be a waste of time and resources given the
likelihood of new pleading and new motions practice; filing decisions on the motions now would
essentially provide Plaintiffs with advisory opinions on how to plead their next round of
amended complaints. Accordingly, the Court GRANTS the renewed motion for a stay of
consideration. (ECF No. 315.) With one exception, the Clerk shall therefore designate
Defendants’ pending motions under Federal Rule of Civil Procedure 12 as terminated on the
docket at this time. (ECF Nos. 194, 195, 196, 197, 198, 199, 200, 201, 202, 203, 204, 205, 206,
207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 225, 226,
227, 228, 229, 230, 233, 235, 236, 237, 239, 240, 241, 243, 244, 246.)
Following the adoption of the new protocol, the parties shall request a status conference
with this Court. At that conference, the Court will address with the parties whether new pleading
is necessary (likely leading to new motions) or whether the Court can simply reactivate the
terminated motions and proceed to dispose of them on their merits.
The one motion by Defendants not included in the list of terminated motions is the
motion targeting the pleading of Plaintiff Billy Slagle. (ECF No. 234.) In addition to discussing
the adoption of a new protocol during the August 8, 2013 telephone conference, the Court and
the parties also addressed the circumstances related to Slagle. Counsel for Defendants made an

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oral motion to withdraw their pending motion for judgment on the pleadings (ECF No. 234) that
targets Slagle’s seventh amended complaint (ECF No. 13). The Court GRANTS the oral motion
and DIRECTS the Clerk to designate the motion for judgment on the pleadings as withdrawn.
(ECF No. 234.) Counsel for Slagle indicated during the conference that they would be filing a
notice of death to memorialize Slagle’s recent demise, and they have since filed such a
suggestion of death. (ECF No. 313.) The filing indicates that Slagle passed away on August 4,
2013. Because this extinguishes his claims, the Clerk shall terminate Slagle as a party to this
litigation.
Counsel has also filed a suggestion of death for Brett Hartman. (ECF No. 314.) This
filing indicates that Hartman passed away on November 13, 2012, which extinguishes Hartman’s
claims. The Clerk shall therefore also terminate Hartman as a party to this litigation.
In light of the foregoing, one motion remains pending on the docket, the April 26, 2013
motion to intervene filed by Gregory Lott. (ECF No. 291.) Lott’s proffered complaint targets
the current protocol, which leads to at least two possibilities. First, the motion may essentially
be moot given the forthcoming new protocol, which would mean that Lott would need to file a
new motion targeting the new protocol after its adoption if he is not permitted to intervene
beforehand. Second, even if Lott’s proffered complaint would remain viable, Defendants’
opposition to his intervention, largely predicated on a statute of limitations argument, may have
no application to the new protocol depending on the content of that protocol. In light of Lott’s
March 19, 2014 scheduled execution date, the Court is reluctant to decide the merits of
intervention at this time or to terminate the motion, but this Court also recognizes that time is of
the essence to Lott. The Court reschedules the motion to intervene for a non-oral hearing on

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October 7, 2013, and encourages the parties to discuss and then advise the Court whether it can
proceed to address the motion before that date or whether it would be a waste of resources given
the forthcoming new protocol.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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