The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
IN RE: OHIO EXECUTION : Case No. 2:11-cv-1016
PROTOCOL LITIGATION
Chief Judge Edmund A. Sargus, Jr.
: Magistrate Judge Michael R. Merz
This document relates to:
Plaintiff James Hanna, :
DECISION AND ORDER DENYING MOTION TO TRANSPORT
This § 1983 method of execution case is before the Court on Petitioner James Hanna’s
Motion to Transport and for Order Authorizing Neuroimaging (ECF No. 2436). Defendants have
filed a memorandum contra (ECF No. 2477), and Hanna has filed a reply in support (ECF No.
2484).
The Motion was filed after Douglas Scharre, M.D., Director of the Division of Cognitive
Neurology and a Professor of Clinical Neurology and Psychiatry at The Ohio State University,
reviewed Hanna’s neurological history. His declaration (ECF No. 2436-3) and curriculum vitae
are attached to the Motion (ECF No. 2436-4). Hanna states that “[t]he Office of the Federal Public
Defender for the Southern District of Ohio will be responsible for all costs related to this testing
and subsequent interpretation.” (Motion, ECF No. 2436, PageID 117180-81).
As a non-dispositive pre-trial matter, the Motion is within the initial decisional authority
of an assigned Magistrate Judge.
Jurisdiction
As authority for the requested order, Hanna argues that through his Third Amended
Individual Supplemental Complaint, in which he alleges that his brain damage will cause a
“paradoxical reaction” to the 500 mg of midazolam in the State’s lethal injection protocol (ECF
No. 2396, PageID 115223-24, ¶¶ 1899-1901), he has shown the requested neuroimaging “to be
relevant to the issues now pending before this Court.” (Motion, ECF No. 2436, PageID 117185,
citing Fed.R.Civ.P. 35(a)(1).). Yet, multiple Courts of Appeals have held a party may not use Rule
35 to order a physical examination upon himself, Berg v. Prison Health Servs., 376 F. App’x 723,
724 (9th Cir. 2010), citing Schlagenhauf v. Holder, 379 U.S. 104, 118-19 (1964); Brown v. United
States, 74 F. App’x 611, 614 (7th Cir. 2003), and Hanna has cited no authority to the contrary.
Alternatively, Hanna argues that the Court has authority under the All Writs Act, 28 U.S.C.
§ 1651, to order his transport (Motion, ECF No. 2436, PageID 117185). In support, he notes that
in Elmore v. Shoop, the undersigned concluded that under the All Writs Act this Court could order
the transport of Petitioner Philip Elmore (who is also a Plaintiff in this case) as a matter ancillary
to its undisputed jurisdiction to adjudicate his capital habeas corpus petition. Id., citing 28 U.S.C.
§ 2241; No. 1:07-cv-776, 2019 U.S. Dist. LEXIS 84144, at *2 (S.D. Ohio May 20, 2019) (Merz,
Mag. J.). Yet Elmore is a habeas case, and in a relatively recent, unpublished decision, a court in
this District declined to order transport of a plaintiff in support of his section 1983 claim, holding
that such an order “is not authorized by either the habeas corpus statute or the All Writs Act.”
Wilson v. Hill, No. 2:08-cv-552, 2011 U.S. Dist. LEXIS 45717, at *5 (S.D. Ohio Apr. 27, 2011)
(King, Mag. J.), citing Ivey v. Harney, 47 F.3d 181 (7th Cir. 1995).
Petitioner argues that Wilson is itself inapposite, noting that it “was a decision on a motion
to quash a subpoena after finding that the expense to be borne by [the Ohio Department of
Rehabilitation and Corrections] would be an undue burden” (Reply, ECF No. 2484, PageID
127435, citing Fed.R.Civ.P. 45(c)(3)(A)(iv); Wilson, 2011 U.S. Dist. LEXIS 45717, at *4-5).
However, nothing in the Wilson opinion suggested that the analysis was limited to the Rule 45
context, and in Ivey, the Defendant Illinois “Department of Corrections . . . appealed, as a custodian
ordered to produce its prisoner may do even though the litigation between the parties continues.”
47 F.3d at 183. The Wilson Court’s narrow analysis is consistent with the Supreme Court’s
jurisprudence since the case of United States v. New York Telephone Co., 434 U.S. 159 (1977):
“Since New York Telephone, however, the Supreme Court has limited the scope of the All Writs
Act.” Hodges v. Bell, 170 F. App’x 389, 394 (6th Cir. 2006), citing Syngenta Crop Protection,
Inc., 537 U.S. 28 (2002); Penn. Bureau of Corr. v. United States Marshals Serv., 474 U.S. 34
(1985).1 Finally, Hanna cites no case in which a transport order under the All Writs Act was
granted (or in the case of Ivey, upheld) for a section 1983 plaintiff.
In light of the above, and mindful that a district court should not lightly infer any implicit
expansion of its limited jurisdiction, see Baze v. Parker, 632 F.3d 338, 341 (6th Cir. 2011), the
Court concludes that it is without jurisdiction to order transport, and denies the Motion.
1 Moreover, in the recent lethal injection case of Irick v. Mays, the district court denied Plaintiff’s motion for leave to
serve a subpoena duces tecum, pursuant to the All Writs Act, to compel “independent testing of the compounded lethal
injection chemicals and . . . discovery of the results.” No. 3:18-cv-737, 2018 WL 3753208 (M.D. Tenn. Aug. 8, 2018).
Undue Delay
In their memorandum contra, Defendants claim that because Hanna’s trial attorneys
“presented the testimony of a psychologist who opined that [Hanna] has brain damage and
neurological disorders, . . . he has had knowledge of this potential medical claim for approximately
twenty years,” yet he has never before sought requested testing. (ECF No. 2477, PageID 127413).
Moreover, they argue that Hanna’s “brain damage Eighth Amendment claim” is not new, but
rather, was set forth in his Second Amended Individual Supplemental Complaint (“SAISC:”), filed
on April 28, 2018. Id., citing SAISC, ECF No. 1501. Given the Supreme Court’s recent statement
in Bucklew v. Precythe that district courts must “police carefully against” unjustified delays in
death penalty motion practice, they argue that Hanna’s Motion should be denied on the basis of
undue delay as well. Id., quoting 139 S.Ct. 1112, 1134 (2019).
In his reply, Hanna states that he will disclose the results of the neuroimaging to Defendants
as soon as possible after the testing is conducted, likely before the end of September. Thus, he
argues, Defendants will have plenty of time to evaluate the results in preparation for litigating
Hanna’s Motion for Preliminary Injunction, as his execution date “is still three months away[,]”
(Reply, ECF No. 2484, PageID 127436). Further, he claims that “[a]ny argument that Defendants
might make about the timing of Hanna’s submission of neuroimaging evidence to this Court is an
argument to be made later (if at all), after Hanna has received the neuroimaging.” Id. (emphasis
in original). Moreover, he argues that Defendants’ undue delay argument is “disingenuous at
best[,]” as it “ignores the practical realities of how the litigation in this complex, consolidated
litigation has been conducted by both sides[,]” id. at PageID 127437 (emphasis in original), and
that “Defendants’ timeliness argument here is essentially arguing that any inmate who claims
medical issues that might require testing must request transport and testing at the time he files an
amended complaint.” Id. “That [added complexity], too, militates against accepting Defendants’
timeliness arguments here.” Id. at PageID 127438.
In the SAISC, Hanna alleged a history of brain damage that renders him sure or very likely
to experience the serious harms alleged throughout the SAISC as a result of the State’s current
protocol (ECF No. 1501, PageID 61322, ¶¶ 1899-1900). He even alleged that “his
mental/psychological characteristics alleged above create a sure or very likely risk that Plaintiff
will have a paradoxical reaction to the execution drug(s).” Id. at PageID 61323, at ¶ 1901. The
allegations in the Third Amended Individual Supplemental Complaint (ECF No. 2396, PageID
115223-24, ¶¶ 1899-1901), go into greater detail about the nature of Hanna’s brain injury and why
he believes a paradoxical reaction will occur, but do not differ in substance. Yet, Hanna does not
explain why he did not know or should not have reasonably known of the need for neuroimaging
when the SAISC was filed in April 2018.
Moreover, Hanna is correct that this litigation does not occur in a vacuum. Philip Elmore,
Hanna’s co-Plaintiff in this case and also represented by Paul Bottei and the Federal Public
Defender, filed his Motion to Transport on February 28, 2019 (Case No. 1:07-cv-776, ECF No.
169). In his Supplemental Briefing, Elmore stated that he would be examined by Dr. Scharre, who
had been retained by the Federal Public Defender evaluate his brain injury (Case No. 1:07-cv-776,
ECF No. 171, PageID 13064). In other words, Hanna’s testing would be done by the same doctor
who was contracted to do the testing for Elmore, and who would be paid from the same source for
the testing on both of them. Yet, Hanna did not file his Motion until almost six months after
Elmore filed his similar motion; Hanna gives no reason for that delay, either. Finally, Hanna
argues that, unlike the petitioner in Bucklew, “the merits of this case have not been reached because
the parties and the Court have been entirely occupied litigating injunctive relief matters over a
seemingly never-ending string of execution dates—dates that are controlled by Defendants alone.”
(Reply, ECF No. 2484, PageID 127438). Yet, Hanna has known of his execution date since
September 1, 2017 (Warrant of Reprieve, ECF No. 1193-1, PageID 44498). In sum, Hanna has
not shown good cause as to why he has waited so long to move for leave to obtain new evidence,
and even if this Court would be found to have jurisdiction, his Motion would be denied on the
grounds of undue delay as well.2
Conclusion
Based on the foregoing analysis, the Motion to Transport is DENIED.
September 17, 2019.
s/ Michael R. Merz
United States Magistrate Judge
2 Moreover, although not raised by the parties, the recent decision in In re Ohio Execution Protocol Litig. (Henness)
upholding the use of midazolam in the State’s lethal injection protocol, --- F.3d ----, 2019 U.S. App. LEXIS 27365
(6th Cir. Sept. 11, 2019), renders dubious any claim by Hanna that the evidence sought will be useful in adjudicating
his Motion for Preliminary Injunction.