In Re: Ohio Execution Protocol Litigation

Filing 834

DECISION AND ORDER STAYING THE EXECUTIONS OF PLAINTIFFS PHILLIPS, TIBBETTS, AND OTTE PENDENTE LITE. Signed by Magistrate Judge Michael R. Merz on 12/19/2016. (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
Phillips, Tibbetts, and Otte

DECISION AND ORDER STAYING THE EXECUTIONS OF
PLAINTIFFS PHILLIPS, TIBBETTS, AND OTTE PENDENTE LITE

This capital § 1983 case is before the Court on Motions for Preliminary Injunction of
Plaintiffs Ronald Phillips, Raymond Tibbetts, and Gary Otte (ECF Nos. 714, 718, and 715). Part
of the relief sought in those Motions is a stay of execution pending final resolution of this
litigation.
Plaintiffs Phillips, Tibbetts, and Otte and the State of Ohio Defendants have unanimously
consented to plenary magistrate judge jurisdiction under 28 U.S.C. § 636(c) and the cases of
these three Plaintiffs have been referred on that basis (ECF No. 734).
This Decision embodies the findings of fact and conclusions of law required by Fed. R.
Civ. P. 52(a)(2).

1

Recent Procedural History

As of September 1, 2016, Ohio had twenty-six inmates on death row with scheduled
execution dates as early as January 12, 2017. At that time, the execution drugs specified in
Ohio’s Execution Protocol (01-COM-11, eff. 06/29/2015; ECF No. 521-1) were pentobarbital
and thiopental sodium only, each as an alternative to the other. Id. at PageID 14167. As best
Plaintiffs knew, the Ohio Department of Rehabilitation and Corrections (ODRC) was still trying
to obtain a supply of either of those drugs, possibly from a compounding pharmacy, to use in a
single-drug lethal injection.
Because there were executions scheduled for the first quarter of 2017 and Plaintiffs had
no notice of whether the State was going to be able to proceed, they requested and the Court
conducted a status conference on October 3, 2016 (Minutes, ECF No. 655).1 During the course
of that conference, the State of Ohio announced its intention to proceed with the scheduled
executions of Messrs. Phillips, Tibbetts, and Otte in the first quarter of 2017 using a new threedrug method and stated that it would promulgate a revised protocol on October 7, 2016.
A year earlier, Judge Frost had granted Ohio a protective order (“Protective Order”)
requiring
that any information or record in Defendants’ possession, custody,
or control that identifies or reasonably would lead to the
identification of any person or entity who participates in the
acquisition or use of the specific drugs, compounded or not, that
Ohio indicates in its execution protocol it will use or will
potentially seek to use to carry out executions is protected and not
subject to discovery.4 This protective order is intended to extend to
those persons who or entities that have not waived or forfeited its
protection and who manufacture, compound, import, transport,
1

This was the first proceeding at which Chief Judge Sargus and the undersigned presided, having assumed
management of the case upon the retirement of District Judge Gregory Frost in May 2016.

2

distribute, supply, prescribe, prepare, administer, use, or test the
compounding equipment or components, the active pharmaceutical
ingredients, the execution protocol drugs or combination of drugs,
the medical supplies, or the medical equipment used in carrying
out any execution under Ohio Revised Code § 2949.22.
4

At this time, “the specific drugs, compounded or not,
that Ohio indicates in its execution protocol it will use or
will potentially seek to use to carry out executions” means
pentobarbital and thiopental sodium, compounded or not.
If Ohio alters its execution protocol to include or
substitute other drugs, those drugs would fall under the
scope of this protective order unless Plaintiffs persuade
this Court that the new drug(s) present some specific
necessity for the source-and[-]identity information
Plaintiffs would seek.
(ECF No. 629, PageID 19409-10, reported at 2015 U.S. Dist. LEXIS 144926.) Judge Frost then
certified the Protective Order decision for interlocutory appeal under 28 U.S.C. § 1292(b) and
stayed all further proceedings in the case pending appeal. Id. at PageID 19411.
By the time of the October 3, 2016, status conference, the Sixth Circuit had accepted the
appeal sub nomine Fears v. Kasich, Case No. 16-3149, but had not yet decided it. The Court
perceived that the first order of business would be discovery in preparation for a preliminary
injunction hearing. It vacated the stay as to the above-named Plaintiffs and ordered them to file,
by October 28, 2016, “a detailed description of all discovery sought to prepare for a preliminary
injunction hearing for these three Plaintiffs.” (Order Vacating Stay, ECF No. 658, PageID
19732.)

Defendants were ordered to respond by November 4, 2016, “indicating what

information it [sic] is willing to produce, in what form, and by what date.” Id.
In the same Order, the Court noted the pendency before the Sixth Circuit of Phillips v.
DeWine, Case No. 15-3238, and of Fears v. Kasich. In Phillips the plaintiffs appealed District
Judge Gregory Frost's decision in Phillips v. DeWine, 92 F. Supp. 3d 702 (S.D. Ohio Feb. 17,
3

2015), dismissing their First Amendment attack on Ohio’s execution confidentiality statute (H.B.
663, codified at Ohio Rev. Code § 2949.221 and .222) for lack of standing and failure to state a
claim. In the Order Vacating Stay, this Court found that resolution of those two appeals would
probably need to be completed before this Court could decide the preliminary injunction motions
(ECF No. 658, PageID 19734).
Since the stayed was vacated, the Sixth Circuit upheld Judge Frost’s decision in Phillips,
concluding Plaintiffs lacked standing to bring some of their constitutional claims and that their
remaining claims failed to state constitutional claims for relief. Phillips v. DeWine, 841 F.3d 405
(6th Cir. Nov. 2, 2016).
Fears v. Kasich was orally argued on November 18, 2016, but no decision has issued as
of the date of this Order, even though the presiding judge indicated at the end of the oral
argument that the court was aware of the imminence of executions.
Plaintiff Phillips filed as ordered his Notice of Discovery Topics listing twenty-three
paragraphs of information, including by reference any Plaintiffs Tibbetts or Otte might seek that
would be relevant to his case (ECF No. 697). Plaintiffs Tibbetts and Otte filed jointly and listed
thirty-five paragraphs of information, mostly paralleling Phillips’ list (ECF No. 698). Both
documents list probable deponents and discovery to be sought from third parties.
Defendants responded to both lists with the general comment that “Plaintiffs’ overarching
discovery plans are an obvious attempt to circumvent [Ohio Revised Code §] 2949.221, Judge
Frost’s Protective Order [ECF No. 629, reported at In re: Ohio Execution Protocol Litigation,
2015 U.S. Dist. LEXIS 144926 (S.D. Ohio Oct. 26, 2015)], and overwhelm and bog down the
Defendants with oral and written discovery that is unduly burdensome, overbroad, and
unnecessary . . . .” (ECF Nos. 706 at PageID 21402; 707 at PageID 21420.) Defendants

4

expressly say they “will not provide discovery that would contravene [Ohio Revised Code] §§
2949.221 and 2949.222. Nor will they provide discovery that has been the subject of any
Protective Order previously issued by this Court.” (ECF No. 706 at PageID 21402.) They also
assert that “much of the information sought is protected by the attorney-client and/or common
interest and/or common defense privilege and/or by the attorney work product doctrine.” Id.
In the Order Vacating Stay, the Court noted the importance of the pending appeal:
Judge Frost expressly found that his Order of October 26, 2015
(the "Protective Order"), "involve[d] a controlling question of law
as to which there is substantial ground for difference of opinion
and that an immediate appeal from the order may materially
advance the ultimate termination of the litigation." (ECF No. 629,
PageID 19411, quoting 28 U.S.C. § 1292(b).) Based on that
finding, he certified the Protective Order for interlocutory appeal
and "STAY[ED] this Opinion and Order and all further
proceedings before this Court pursuant to § 1292(b) .... " Id.
Requested to accept jurisdiction under 28 U.S .C. § 1292(b), the
Sixth Circuit concluded that
[T]he pendency of the appeal in Phillips v. DeWine, No.
15-3238, coupled with the seriousness of the issues at
stake, constitute exceptional circumstances that justify a
departure from the final judgment rule. The district court's
ruling involves controlling questions of law on which
there is substantial ground for difference of opinion.
Because resolving these questions will materially advance
the ultimate termination of this litigation, furthermore,
judicial and party economy will be served by this appeal.
In re: Ohio Execution Protocol Litigation; Angelo Fears, et al.,
Case No. 15-0305 (6th Cir. Feb. 22, 2016)(unreported, copy at ECF
No. 643, PageID 19571-72).

(Order Partially Vacating Stay, ECF No. 658, PageID 19733-34.) Thus in October, this Court
adopted the earlier conclusion of Judge Frost and the Sixth Circuit that a decision in Fears v.
5

Kasich was important to govern the discovery conducted before the preliminary injunction
hearing set for January 3-5, 2017.
That conclusion has not wavered. Hoping to avoid the present situation, the Court urged
the parties to consult and attempt to agree on a stay of execution pendente lite to allow careful
consideration of the preliminary injunction motions in light of whatever discovery would be
permitted after considering the circuit court’s decision in Fears v. Kasich.

In email

correspondence prior to the status conference on November 28, 2016, Assistant Attorney General
Madden reported to the Court that his “clients are not willing to consider a stay in any form, but
provided – have provided us with the authority to examine what the potential contours of a
proposed unilateral issuance of a gubernatorial reprieve would entail.” (Transcript, ECF No.
763, PageID 23585-86.) Such a reprieve could only be for a slight delay and would only be
considered if plaintiffs were “willing to offer concessions of sufficient value. . .” Id. at PageID
23586. Before any reprieve were granted, Mr. Madden represented that the Governor would
have to call the victims’ families and explain why he was doing so. Id. at PageID 23586-87. At
that point no discussions had occurred between the parties about what “a short definite delay
would be.” Id. at PageID 23590.
Based on that lack of agreement, the Court understood that an agreed2 reprieve was
unlikely and it needed to set dates for a preliminary injunction hearing in sufficient time before
the scheduled January 12, 2017, execution of Ronald Phillips to permit a decision which could
be appealed. Id. at PageID 23591. The Court then issued a Scheduling Order setting the
necessary dates and reminding counsel of their agreement to continue to talk (ECF No. 746,
PageID 23300-01).

2

I.e., unilateral legally, but with Plaintiffs having made concessions as a condition of the reprieve.

6

The Court’s next status conference was held on December 6, 2016. The day before,
Defendants’ counsel filed a lengthy account of negotiations, including that “they did not think a
decision in Fears v. Kasich was necessary for a response to, or decision on, any of these
motions,” including in particular the motions for preliminary injunction (ECF No. 764, PageID
23620).

Defendants indicated they had “formally rejected Plaintiffs’ proposal regarding a

possible agreed-to gubernatorial reprieve because it failed to meet the parameters set forth in the
Defendants’ initial email on the matter.” Id.
Thus informed that there would be no agreement, the Court issued its order to show cause
the next day, specifically providing:
The parties have been unable to negotiate agreed stays of
executions to permit a more deliberate consideration of the issues
raised in the Preliminary Injunction Motions (See ECF No. 764
and attached email correspondence[ )]. Rather than the procedure
suggested in ¶ 7 of Mr. Sweeney’s email and to attempt to ensure a
prompter resolution of this issue, Defendants are ORDERED to
show cause in writing not later than December 9, 2016, why this
Court should not stay/enjoin the executions of Messrs. Phillips,
Tibbetts, and Otte pending completion of the preliminary
injunction proceedings. The Court particularly invites comment on
any jurisdictional questions and on why this matter should not be
stayed pending a decision by the Sixth Circuit in Fears v. Kasich,
as contemplated by the Order of October 4, 2016 (ECF No. 658).
Plaintiffs shall respond to Defendants’ filing not later than
Monday, December 12, 2016.
(ECF No. 767, PageID 23647-48.)

Positions of the Parties

Defendants assert that entering a stay is the legal and functional equivalent of “granting
Plaintiffs’ motion[s] for preliminary injunction.” (Response, ECF No. 803, PageID 24023.)
7

Therefore Plaintiffs must meet the usual standard for preliminary injunctive relief, including
showing a “strong likelihood of success on the merits” which they cannot do. Id. at PageID
24023, citing Cooey (Biros) v. Strickland, 589 F.3d 210, 218 (6th Cir. 2009). Any stay order
must also satisfy the Prison Litigation Reform Act of 1995 Title VIII of P.L. 104-134, 110 Stat.
1321(effective April 26, 1996)(the "PLRA"). Id. at PageID 24024.3
Functionally, Defendants claim, a stay will not achieve the Court’s purpose because it
will require new execution dates which can only be set by the Ohio Supreme Court and will
moot the preliminary injunction proceedings. Id. at PageID 24024, citing Workman v. Bredesen,
486 F.3d 896, 904 (6th Cir. 2007), and University of Texas v. Camenisch, 451 U.S. 390, 398
(1981).
Finally, Defendants argue that Plaintiffs have not demonstrated how receiving the
information covered by the Protective Order, characterized by Judge Frost as “source
information,” would help them prove their case (Response, ECF No. 803, PageID 24026, citing
ECF No. 629, PageID 19407).
Plaintiffs respond that the Court has authority to stay the executions pendente lite without
deciding the preliminary injunction motions (Reply, ECF No. 814, PageID 24353-54). They
emphasize how different this case is from the usual time-constrained preliminary injunction
execution case because here the timing has been entirely in control of the Defendants. They note
again the inconsistent positions taken by Defendants regarding the scope of the Protective Order.
Id. at PageID 24350-52.

3

The referenced provision of the PLRA, 18 U.S.C. § 3626(a)(1), applies only to prospective relief in prison
conditions cases and thus does not apply to these methods of execution cases.

8

Analysis

1.

The interpretation of the Protective Order is properly on appeal to the Sixth Circuit

Judge Frost certified the Protective Order as appealable upon concluding, as required by
28 U.S.C. § 1292(b), that the Protective Order “involves a controlling question of law as to
which there is substantial ground for difference of opinion and that an immediate appeal from the
order may materially advance the ultimate termination of the litigation.” (Order, ECF No. 629,
PageID 19411, quoting Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 110-11 (2009).) The
Sixth Circuit’s jurisdiction over such an interlocutory appeal is discretionary; those with long
experience in Sixth Circuit practice know how rarely it is accepted. The Sixth Circuit not only
accepted jurisdiction, but explained why it was justified in doing so:
The district court’s ruling involves controlling questions of law on
which there is substantial ground for difference of opinion.
Because resolving these questions will materially advance the
ultimate termination of this litigation, furthermore, judicial and
party economy will be served by this appeal. See Little v.
Louisville Gas & Elec. Co., 805 F.3d 695, 699 (6th Cir.
2015)(“[P]ermitting appellate courts to timely resolve disputed,
controlling legal questions when doing so might avoid the need for
protracted and expensive litigation serves the twin aims of judicial
and party economy.”) (hyphen omitted).

In re: Ohio Execution Protocol Litigation: Angelo Fears, et al., No. 15-0305, ECF 22-1 (Feb.
22, 2016)(unreported, copy at ECF No. 643 in this case). That appeal has now been fully briefed
and was argued on November 18, 2016, but has not yet been decided. This Court and the Sixth
Circuit have already decided that that appeal should be decided before this case proceeds.
9

Simple respect for the decisional process of the Court of Appeals strongly suggests waiting on its
decision.
While the pendency of the appeal does not impede our jurisdiction as an appeal from a
final judgment would,4 the Sixth Circuit has jurisdiction to review the entire Protective Order
and not just some certified question of law. Morse/Diesel, Inc. v. Trinity Industries, Inc., 859
F.2d 242, 249 (2nd Cir. 1988); Cipollone v. Liggett Group, Inc., 789 F.2d 181, 187-88 (3rd Cir.
1986); Ducre v. Executive Officers of Halter Marine, 752 F.2d 976, 983-84 (5th Cir. 1985); and
Little v. Louisville Gas & Elec. Co., 805 F.3d 695 (6th Cir. 2015). As this Court has said to
counsel before, the Sixth Circuit’s ruling on the validity of the Protective Order may also involve
interpreting the scope of the Order, a matter much in contention between the parties.
Defendants’ responses to discovery in this case since the stay was partially vacated
evince reliance on a much broader scope of protected information than just the “source
information” that Defendants say is irrelevant. For example, Interrogatory No. 1 asks for the
identity of “all compounding pharmacies and pharmacists contacted by you or anyone on your
behalf, from [sic] the time period January 1, 2010, to present, in an effort to obtain compounded
execution drugs.” (Reproduced at ECF No. 814-1, PageID 24364.) Defendant Mohr, Director of
ODRC, responds “Mohr objects because Plaintiffs seek information protected from disclosure by
the District Court’s Protective Order (See ECF No. 629 and 632) and by applicable Ohio law.”
Id. Does the Protective Order apply to entities contacted who declined to participate? Does H.B.
663 apply to them? Arguably the scope of both the Protective Order and the statute apply

4

See Ex Parte Nat’l Enameling & Stamping Co., 201 U.S. 156, 161-62 (1906) (observing that when “an appeal is
allowed from an interlocutory order . . . it is given precedence in the appellate court, [but] that the other proceedings
in the lower court are not to be stayed.” In addition, “that which is contemplated is a review of the interlocutory
order, and of that only. It was not intended that the cause as a whole should be transferred to the appellate court
prior to the final decree. The case, except for the hearing on the appeal from the interlocutory order, is to proceed in
the lower court as though no such appeal had been taken, unless otherwise specially ordered.”

10

because entities contacted are possible or potential participants in the execution process, but
whether the Protective Order is valid or applies is within the scope of the pending appeal.
Less likely to fit is Request for Production 1 which asks for “any and all reports or other
documentation created by explicit or implicit mandate of 01-COM-11 created from January 1,
2010 to present. This includes but is not limited to any reports related to the availability of
sufficient quantities of Execution Drugs.” Director Mohr makes the same objection. Id. at
PageID 24366. The same objection language is incorporated in almost all of the Supplemental
Responses to discovery. Id. at PageID 24367-81. The discovery requests seek a great deal more
than “source information,” but Defendants claim the Protective Order and the statute protect that
broader scope of information.5
It would be disrespectful of the § 1292(b) process for this Court to decide questions of
interpretation of the Protective Order while those questions are pending before the circuit court.
For that reason, the Court has postponed those questions pending a decision in Fears v. Kasich in
a number of orders. But time has become very short. It is now less than a month from the nextscheduled (Phillips) execution. Discovery is heavily underway and will present questions about
the scope of the Protective Order and H.B. 663. In the absence of a stay of execution, those
questions will have to be answered without guidance from the Sixth Circuit and with the risk that
Phillips will be denied information that might have made a difference in his case.

2.

5

The Court has Authority to Stay the Execution Pendente Lite

The Court presumes it is H.B. 663 which is being referred to in that phrase “applicable Ohio law.”

11

On a basic level, this Court’s authority to stay the executions is hardly doubtful. Federal
courts as equity courts have always exercised equity jurisdiction to maintain the status quo
pending a decision on the merits of a case. 1 Story’s Commentaries on Equity Jurisprudence §
57 (10th ed. 1870). The question, rather, is when it is proper to exercise that jurisdiction to enjoin
an execution to permit the Court time to adjudicate a matter.
Defendants argue it is not proper to grant a stay pendente lite without concluding that
Plaintiffs meet the substantive standard for a preliminary injunction set forth in Cooey (Biros) v.
Strickland, 589 F.3d 210, 218 (6th Cir. 2009). Defendants argue “[t]hese standards apply even if
the intent of the stay is to permit additional time for litigation because the effect of that order
would be an injunction preventing Ohio from executing its judgment.” (ECF No. 803, citing
Workman v. Bredesen, 486 F.3d 896, 904 (6th Cir. 2007), and Alley v. Little, 181 Fed. Appx. 509
(6th Cir. 2006)).
A stay of execution pendente lite would indeed operate as an injunction, but it would not
necessarily vacate the execution date set by the Ohio Supreme Court and re-set by the
Governor’s reprieve. This Court’s sole intention is to stay the execution of Phillips beyond
January 12, 2017, if, but only if, the decision in Fears v. Kasich is not handed down in time to
apply it to this case. By staying the execution now in a preliminary injunction immediately
appealable under 28 U.S.C. § 1291(a), this Court again respects the decisional process of the
Court of Appeals. If that Court decides a stay pendente lite is inappropriate, entering it now
gives that Court almost a month to decide that question, as opposed to the three days the
appellate court had in Workman. If a decision is issued in Fears in time to apply it before the

12

preliminary injunction hearing set for January 3, 2017,6 this Court will immediately dissolve the
stay, apply Fears, and render any interlocutory appeal moot.
Workman is apposite, but its facts are critically distinguishable. In that case, the district
court entered a temporary restraining order and set a preliminary injunction hearing for May 14,
five days after Workman’s scheduled execution with the practical effect of sending the State of
Tennessee back to the Tennessee Supreme Court for a new date. That will only happen here if
this Court is unable to apply a decision in Fears to this case before it reaches a decision on the
preliminary injunction motions after the hearing scheduled for January 3-5, 2017. In other
words, instead of granting a stay which extends past the execution date to the preliminary
injunction hearing date, which is what happened in Workman, this Court has set a preliminary
injunction hearing before the execution date and enters a stay only to allow appropriate appellate
litigation.
Entering a temporary restraining order at this point would have no utility. Because the
scheduled execution is more than twenty days in the future, any temporary restraining order
entered now would have been converted in effect to a preliminary injunction if it extended
beyond January 4, 2017. Sampson v. Murray, 415 U.S. 61, 85-86 (1974).
Workman does not hold that any stay pendente lite must meet the substantive standards
for preliminary injunctive relief. Instead, it holds that Workman’s failure to show likely success
on the merits was fatal to injunctive relief when coupled with his extraordinary dilatoriness in
moving for relief.
Alley v. Little, supra, is to the same effect: Alley was unlikely to succeed on the merits
and “was on notice as to both the particulars of the protocol and the availability of making a

6

This Order does not vacate the January 3-5, 2017, setting. In order to protect Plaintffs’ interests in litigating all the
claims in their Preliminary Injunction Motions before January 12, 2017, that setting remains in place.

13

claim such as the one he now raises for several years before he filed his last-minute complaint.”
181 Fed. Appx. 509, 513. The district court had stayed Alley’s execution pending a decision by
the Supreme Court as to whether a challenge to method of execution could be brought in a 42
U.S.C. § 1983 action as opposed to habeas corpus; Hill v. McDonough, 547 U.S. 573 (2006), was
then pending before the Supreme Court. In vacating the stay, the Sixth Circuit noted that the
Supreme Court itself had refused stays pending that decision and indeed vacated stays issued by
lower courts for the same purpose.
Plaintiffs rely on the stay of execution pending appeal entered by the Supreme Court in
the case of Russell Bucklew, reported in the opinion of the Eighth Circuit in Bucklew v.
Lombardi, 783 F.3d 1120, 1122-23 (8th Cir. 2014), and also reported at 572 U.S. ___, 134 S. Ct.
2333 (2014).

Defendants argue that stays of execution by the Supreme Court are not

precedential (ECF No. 803, PageID 24025, citing Schwab v. Sec’y, Dept. of Corr., 507 F.3d 1297
(11th Cir. 2007)). That is a fair reading of Supreme Court practice as this Court understands it.
But an unexplained grant of a stay of execution at least implies there is power to grant that relief,
even if it does not tell the lower courts what standard to apply.
The Court believes the present circumstances of this case are unique. The Court is not
aware of another case in which a §1292(b) appeal is pending on an outcome-determinative
question in which a defendant was determined to proceed without awaiting a decision. Under
those circumstances, a preliminary injunction is warranted, including a stay of execution if
ultimately needed, to protect the integrity of the appellate process, without any conclusion on the
usual four factors ordinarily needed for preliminary injunctive relief.

14

3.

In the Alternative, Plaintiffs Meet the Usual Standard for Preliminary Injunctive
Relief

In determining whether preliminary injunctive relief is merited in a capital § 1983 cases,
a trial or appellate court applies
the following established standards (1) whether [petitioner] has
demonstrated a strong likelihood of success on the merits; (2)
whether he will suffer irreparable injury in the absence of equitable
relief; (3) whether the stay will cause substantial harm to others;
and (4) whether the public interest is best served by granting the
stay. Workman v. Bredesen, 486 F.3d 896, 905 (6th Cir. 2007);
[N.E.]. Ohio Coal. for Homeless & Serv. Employees Int'l Union,
Local 1199 v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006).
"These factors are not prerequisites that must be met, but are
interrelated considerations that must be balanced together." Mich.
Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d
150, 153 (6th Cir. 1991).
Cooey (Biros) v. Strickland, 589 F.3d 210, 218 (6th Cir. 2009). Judge Frost applied these same
criteria in a prior preliminary injunction decision in this case. In re: Ohio Execution Protocol
Litig., 840 F. Supp. 2d 1044, 1048 (S.D. Ohio 2012). They are consistently applied by the Sixth
Circuit to preliminary injunctive relief requests across subject matter areas, Overstreet v.
Lexington-Fayette Urban Co. Gov't, 305 F.3d 566, 573 (6th Cir. 2002); Nightclubs, Inc. v. City of
Paducah, 202 F.3d 884, 888 (6th Cir. 2000); Washington v. Reno, 35 F.3d 1093, 1099 (6th Cir.
1994); NAACP v. City of Mansfield, 866 F.2d 162, 166 (6th Cir. 1989); Frisch's Restaurant, Inc.
v. Shoney's, Inc., 759 F.2d 1261, 1263 (6th Cir. 1985); In re DeLorean Motor Co., 755 F.2d 1223,
1228 (6th Cir. 1985).

15

3.1.

Plaintiffs have shown a substantial likelihood of success on their judicial estoppel7

claim.
In his Sixth Claim for Relief, Plaintiff Phillips alleges that the State of Ohio permanently
renounced the use of pancuronium bromide and potassium chloride in lethal injection executions
(Fourth Amended Complaint, ECF No. 692, PageID 20637-43). Plaintiffs Tibbetts and Otte
raise the same claims (ECF No. 691, PageID 20496-500; ECF No. 695, PageID 21143-47).
The newly adopted version of the Execution Protocol adds a paralytic agent (vecuronium
bromide, pancuronium bromide, or rocuronium bromide8) as the second drug and potassium
chloride as the third drug in the three-drug protocol Ohio has announced it intends to use to
execute Plaintiffs Phillips, Tibbetts, and Otte.
In 2009 death-row inmate Ronald Biros was scheduled to be executed under a three-drug
protocol in which thiopental sodium was the first drug, followed by a pancuronium bromide and
potassium chloride. Ohio had set his execution date for December 8, 2009. Cooey (Biros) v.
Strickland, 588 F.3d 921 (6th Cir. 2009). On October 19, 2009, Judge Frost stayed Biros’
execution pending further order (Case No. 2:04-cv-1156, ECF No. 590).

However, on

November 13, 2009, the State changed its protocol to shift to a one-drug protocol: five grams of
thiopental sodium administered intravenously. Id. The State then moved to vacate the stay,
Judge Frost refused, and the State appealed. The Sixth Circuit accepted the representation of the
ODRC’s then-director Terry Collins that “pancuronium bromide . . . [and] potassium chloride
will no longer be used as part of that process. . . .” 588 F.3d at 923. This representation,
repeated by counsel in the State’s filings in that case, persuaded the Sixth Circuit that the
7

Phillips’ Sixth Claim for Relief combines claims for judicial estoppel, judicial admission, and/or promissory
estoppel. Only the judicial estoppel claim is being considered here.
8
Since each of these drugs is apparently intended to achieve the same result, the Court makes no further distinction
among them at this time, without prejudice to any evidence to the contrary to be offered at the preliminary
injunction hearing.

16

asserted9 constitutional violations implicit in the old procedure would not be repeated. This
rendered moot Biros’ challenges to the old protocol and led the circuit court to vacate the stay.
The doctrine of judicial estoppel forbids a party from taking a position inconsistent with
one successfully and unequivocally asserted by that same party in an earlier proceeding.
Mirando v. U.S. Dept. of the Treasury, 766 F.3d 540, 545 (6th Cir. 2014), citing New Hampshire
v. Maine, 532 U.S. 742, 748 (2001); Warda v. Commissioner of Internal Revenue, 15 F.3d 533,
538 (6th Cir. 1994).
The doctrine of judicial estoppel "forbids a party 'from taking a position
inconsistent with one successfully and unequivocally asserted by the same party
in a prior proceeding.'" Griffith v. Wal-Mart Stores, 135 F.3d 376, 380 (6th Cir.
1998), quoting Teledyne Indus., Inc. v. Nat'l Labor Relations Bd., 911 F.2d 1214,
1217 (6th Cir. 1990). Courts apply judicial estoppel in order to "preserve[] the
integrity of the courts by preventing a party from abusing the judicial process
through cynical gamesmanship, achieving success on one position, then arguing
the opposing to suit an exigency of the moment." Id. quoting Teledyne, 911 F.2d
at 1218. The doctrine applies only when a party shows that his opponent: (1) took
a contrary position; (2) under oath in a prior proceeding; and (3) the prior position
was accepted by the court. Id.
Wells Fargo Bank, N.A. v. La Salle Bank, N.A., 643 F. Supp. 2d 1014, 1029 (S.D. Ohio
2009)(Merz, M.J.).
The position the State of Ohio now takes – that it will execute Phillips, Tibbetts, and Otte
under a three-drug protocol using a paralytic agent and potassium chloride -- is completely
inconsistent with the position it took on appeal in Cooey (Biros) and on remand from that
decision before Judge Frost. Ohio prevailed on its contrary position and are now judicially
estopped from re-adopting a paralytic agent and potassium chloride as part of the Execution
Protocol.

9

The court made it clear that the unconstitutionality of the old protocol was “by no means clear.” Id.

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3.2.

Irreparable Injury Absent Stay

Absent a stay, Phillips, Tibbetts, and Otte will be executed without being able to obtain
the information which may be useful to them and may be permitted by the impending decision in
Fears v. Kasich. That constitutes irreparable harm.

3.3.

Harm to Others (Balance of Equities)

Unlike the death row plaintiffs in many of these cases, the named Plaintiffs did not delay
at all in bringing their claims. As the Sixth Circuit emphasized in Workman and Alley, for
example, those plaintiffs had ample prior opportunities to challenge their method of execution
before filing “last minute” § 1983 actions. Although this consolidated case has been pending for
many years, it was only on October 7, 2016, that Ohio amended its Execution Protocol to
reintroduce a paralytic and potassium chloride, drugs which had been abandoned on November
13, 2009. The first knowledge Plaintiffs had of the reintroduction of these drugs was when they
were named in open court during the October 3, 2016, status conference. Plaintiffs then had to
re-plead by filing their Fourth Amended Complaint and motions for preliminary injunction on a
short schedule set by the Court and not objected to by the State.
The State of Ohio has been in complete control of the timing of this matter. It obtained
reprieves and the Protective Order ostensibly to obtain compounded pentobarbital for future
executions. Plaintiffs have presented evidence from Defendants’ privilege log that they may

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have acquired the reintroduced drugs10 as early as July 2016, but no notice of intent to amend the
Protocol was given to either the Plaintiffs or the Court until October 3, 2016. Thus to the extent
there is a short time to litigate the issues here, it is because the State has shortened it, not because
Plaintiffs have delayed.
Defendants emphasize the interest of the State, both as sovereign and as representative
for the victims and their families, in the prompt execution of judicial sentences, including death
sentences. But the State has failed to show a compelling interest in executing these Plaintiffs
before the Sixth Circuit can decide Fears and this Court can apply that decision. Defendants
have not shown they will suffer any more than minor inconvenience in asking the Ohio Supreme
Court for new death warrants for these three Plaintiffs.

3.4.

The Public Interest

The public is vitally interested in the integrity of the judicial process implicit in waiting
on a decision in Fears. The public interest is even more vitally concerned with enforcing judicial
estoppel.

Conclusion

Accordingly, it is hereby ORDERED that the Defendants and all persons in concert with
them are ENJOINED from executing Ronald Phillips, Raymond Tibbetts, or Garry Otte pending

10

Midazolam is not covered by the judicial estoppel finding above, but had been apparently abandoned by the State
after the execution of Dennis McGuire in January 2014. Plaintiffs thus had no reason to believe midazolam was
coming back until October 3, 2016.

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further order of this Court. It is the Court’s intention to vacate this stay as soon as it can apply
the impending decision in Fears v. Kasich to this case.

December 19, 2016.

s/ Michael R. Merz
United States Magistrate Judge

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