Chinn v. Warden Mansfield

Filing 103

DECISION AND ORDER; REPORT AND RECOMMENDATIONS - The Motion to extend Chinn's time to plead is GRANTED and his time to amend to add lethal injection claims directed to the then-current Ohio lethal injection protocol is EXTENDED to April 13, 2015 . However, the Motion to Stay Consideration of his lethal injection claims to that date is DENIED and it is respectfully recommended that those claims as presently pleaded be dismissed without prejudice as MOOT because directed to a lethal injection protocol which has been superseded. Signed by Magistrate Judge Michael R Merz on 11/5/2014. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DAVEL CHINN,
:
Petitioner,

Case No. 3:02-cv-512
:

District Judge Edmund A. Sargus, Jr.
Magistrate Judge Michael R. Merz

-vs-

WARDEN, Mansfield Correctional
Institution,
:
Respondent.

DECISION AND ORDER; REPORT AND RECOMMENDATIONS

This capital habeas corpus case is before the Court on Petitioner’s Motion to Extend the
Stay of Consideration of his lethal injection method-of-execution claims until April 13, 2015,
which is projected to be approximately sixty days after the scheduled execution of Ronald
Phillips, presently scheduled for January 2015 (Doc. No. 99). The Warden opposes the Motion
(Doc. No. 101) and Chinn has filed a Reply in support (Doc. No. 102).

Relevant Procedural History

The Magistrate Judge has filed a Report and Recommendations (Doc. No. 60) and,
following recommital, a Supplemental Report and Recommendations (Doc. No. 86) on the
merits of Chinn’s claims other than those related to Ohio’s lethal injection protocol. In the
meantime, the Court permitted Chinn to amend his Petition to raise lethal injection claims
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(Grounds for Relief Twenty-One and Twenty-Two) under authority of Adams v. Bradshaw, 644
F.3d 481 (6th Cir. 2011)(Order, Doc. No. 71, objections overruled, Opinion, Doc. No. 77).
On March 24, 2014, Chinn filed an unopposed motion to stay consideration of his lethal
injection claims and extend his time to amend the Petition with new lethal injection claims until
sixty days after the State of Ohio released its official report regarding the problematic execution
of Dennis McGuire on January 16, 2014 (Doc. No. 95). That motion was granted and on June
24, 2014, the time was extended without objection to and including October 2, 2014 (Notation
Order granting Doc. No. 98). On September 25, 2014, Chinn moved again to extend, filing the
instant Motion (Doc. No. 99). To preserve the right of the parties to be heard, the Court on
September 29, 2014, suspended Chinn’s obligation to amend until a date to be set in deciding
that Motion.

The Position of the Parties:

Chinn seeks an additional extension to April 13, 2015, on the same rationale as prior
extensions, to wit, the need to direct his lethal injection claims to whatever lethal injection
protocol is in place when the State finally sets his execution date.
The Warden now opposes further extension on the basis of Scott v. Houk, 760 F.3d 497
(6th Cir. 2014), which it claims “clarifies that method-of-execution claims should be pursued
through Title 42 U.S.C. Section 1983 litigation.” (Memo in Opp., Doc. No. 101, PageID 1540.)
The Warden notes that Chinn, like Scott, is a plaintiff in In re Ohio Execution Protocol, Case
No. 2:11-cv-1016, pending before Judge Gregory Frost of this Court, and should be compelled to
pursue his constitutional claims in that case rather than further delay these habeas corpus

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proceedings. Id. at PageID 1541.
Chinn has filed a lengthy Reply arguing that Scott does not overrule Adams. Chinn’s
arguments directed to the overlap, if any, between his § 1983 lethal injection claims and claims
he might make in habeas are “premature at this pleading amendment stage.” (Reply, Doc. No.
102.)

Analysis

For approximately the past year, the Magistrate Judge has dealt with requests for
extensions of time to re-plead lethal injection claims on a blanket basis, in part because the State
of Ohio has not opposed them. Because many of the pleading dates were extended to the same
date – October 2, 2014, many motions to extend further have become ripe at virtually the same
time in late October 2014. For reasons of judicial economy, the Magistrate Judge had decided to
differentiate among the cases depending on the stage of consideration of the non-lethal-injection
claims. In Turner v. Hudson, 2014 U.S. Dist. LEXIS 155270 (S.D. Ohio Oct. 30, 2014), the
extension was granted because of the expressed preference of District Judge Black to deal with
all claims at the same time. In Raglin v. Mitchell, 2014 U.S. Dist. LEXIS 155634 (S.D. Ohio
Nov. 3, 2014), District Judge Barrett has already ruled on the non-lethal-injection claims and it
seemed unnecessary to delay finality on those claims while waiting for the lethal injection claims
to reach ripeness. The same considerations applied to warrant denial of the extension in Bays v.
Warden, Case No. 3:08-cv-076, 2014 U.S. Dist. LEXIS ______ (S.D. Ohio Nov. 5, 2014), where
District Judge Rose has already adjudicated the non-lethal-injection claims.
In this case, various factors suggest granting the extension. Although recommendations

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on the merits are pending, District Judge Sargus has not yet reached them for decision.
Furthermore, Judge Sargus has already granted a similar extension request in Lindsey v. Jenkins,
Case No. 1:03-cv-702 (Order of Sept. 16, 2014).
Accordingly, the Motion to extend Chinn’s time to plead is GRANTED and his time to
amend to add lethal injection claims directed to the then-current Ohio lethal injection protocol is
EXTENDED to April 13, 2015.
However, the Motion to Stay Consideration of his lethal injection claims to that date is
DENIED and it is respectfully recommended that those claims as presently pleaded be dismissed
without prejudice as MOOT because directed to a lethal injection protocol which has been
superseded.
November 5, 2014.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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