The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
IN RE: OHIO EXECUTION : Case No. 2:11-cv-1016
PROTOCOL LITIGATION
District Judge Edmund A. Sargus, Jr.
: Magistrate Judge Michael R. Merz
This document relates to:
Plaintiffs Cleveland Jackson, James Hanna, :
Kareem Jackson, and Melvin Bonnell
DECISION AND ORDER VACATING EVIDENTIARY HEARING
This consolidated § 1983 method of execution case was set for evidentiary hearing from
September 24, 2019, through October 3, 2019, on the Motions for Preliminary Injunction of
Plaintiffs Cleveland Jackson (ECF Nos. 2242, 2437), James Hanna (ECF No. 2435), Kareem
Jackson (ECF No. 2470), and Melvin Bonnell (ECF No. 2438).1
On September 11, 2019, the United States Court of Appeals for the Sixth Circuit issued In
re: Ohio Execution Protocol Litig. (Henness), No. 19-3064, ___ F.3d ____, 2019 U.S. App.
LEXIS 27365 (6th Cir. Sept. 11, 2019), affirming this Court’s denial of Plaintiff Warren Henness’s
motion for preliminary injunction. Id. at *2; 2019 U.S. Dist. LEXIS 8200 (S.D. Ohio Jan. 14,
2019) (Merz, Mag. J.). However, the appellate court also found that this Court had clearly erred
1 Cleveland Jackson’s hearing was set first for these dates because his is the next scheduled Ohio execution
(11/13/2019). The consolidation of preliminary injunction hearings happened at a point in time when there was no
decision in the Henness case and this Court did not know when to expect one. Defendants were unwilling to agree to
a stay pending that decision, and the scheduled execution dates of James Hanna (12/11/2019), Kareem Jackson
(01/16/2020), and Melvin Bonnell (02/12/2020) were sufficiently close that providing separate hearings (and writing
separate opinions) in all four cases appeared impracticable.
in finding that Henness had “met his ‘heavy burden to show that’ the State's chosen method of
execution will cause serious pain that the inmate ‘is sure or very likely to be conscious enough to
experience.’” Id. at *3-4, quoting Campbell v. Kasich, 881 F.3d 447, 450 (6th Cir. 2018), cert.
denied sub nom. Tibbetts v. Kasich, 139 S.Ct. 216 (2018).
As an initial matter, neither pulmonary edema nor the symptoms
associated with it qualify as the type of serious pain prohibited by
the Eighth Amendment. Consider: midazolam may cause Henness
to suffocate. But the Eighth Amendment only prohibits forms of
punishment that seek to intensify an inmate's death by
“superadd[ing]” feelings of “terror, pain, or disgrace.” . . .
Consistent with this understanding, the Supreme Court recently
reasoned that the fact that an inmate sentenced to death by hanging
might slowly suffocate to death is not constitutionally problematic.
Id. Because suffocation does not qualify as “severe pain and
needless suffering,” it follows that Ohio's use of midazolam—which
could cause pulmonary edema, i.e., suffocation—is not
constitutionally inappropriate. The district court therefore clearly
erred in concluding to the contrary.
Further, the district court erred in finding that Henness met his
burden of proving that midazolam is incapable of suppressing his
consciousness enough to prevent him from experiencing—at a
constitutionally problematic level—the pain caused by the
combination of the paralytic agent and potassium chloride. . . . [T]he
relevant inquiry is whether an inmate injected with 500 milligrams
of midazolam would subjectively experience unconstitutionally
severe pain—an inquiry that Henness has failed to prove should be
answered in his favor. . . . Without evidence showing that a person
deeply sedated by a 500 milligram dose of midazolam is still “sure
or very likely” to experience an unconstitutionally high level of
pain, Henness has not met his burden on this prong, and the district
court clearly erred in concluding otherwise.
* * *
Henness's failure to satisfy Glossip’s first prong necessarily means
that he cannot demonstrate a likelihood of success on the second
prong. . . . In other words, because Henness has not shown that
Ohio's existing method of execution causes severe pain (discussed
above), it is impossible for him to show that the existence of an
alternative method of execution would “significantly reduce [the]
substantial risk of severe pain” caused by the existing method.
Id. at *4-8, quoting Bucklew v. Precythe, 139 S.Ct. 1112, 1124, 1128-30 (2019); Fears v. Morgan,
860 F.3d 881, 890 (6th Cir.) (en banc), cert. denied, 137 S.Ct. 2238 (2017); citing Glossip v. Gross,
135 S.Ct. 2726, 2737 (2015); Fears, 860 F.3d at 886, 888.
In light of this decision, the Court ordered the parties to show why the evidentiary hearing
should not be vacated, given the expected focus of the evidence on midazolam and on Glossip’s
second prong (ECF No. 2478). Plaintiffs Cleveland Jackson (ECF No. 2490), James Hanna (ECF
No. 2491), and Melvin Bonnell (ECF No. 2489) responded to the Order; Kareem Jackson did not.
Hanna (ECF No. 2491, PageID 127695) and Bonnell (ECF No. 2489, PageID 127464) incorporate
and adopt Cleveland Jackson’s response as it pertains to common issues. Therefore, the Court’s
analysis of Cleveland Jackson’s response also applies to Hanna and Bonnell except where
otherwise expressly stated.
Cleveland Jackson
Cleveland Jackson raises four primary arguments as to why the evidentiary hearing should
proceed: (1) the Henness decision is not final, as no mandate has issued from the Sixth Circuit;
(2) he can still meet the first prong of Glossip even in light of Henness; (3) Henness does not
preclude him from offering evidence in attempting to meet the second prong of Glossip; and (4)
Henness was wrongly decided and contravened Supreme Court precedent (C. Jackson Response,
ECF No. 2490, PageID 127568-70). None of these arguments is persuasive.
The Henness Decision Is Not Final
As Cleveland Jackson concedes, the reason the mandate has not yet issued in Henness is
because “[t]he time to file a petition for rehearing and rehearing en banc has not expired and will
not expire until September 25.” Id. at PageID 127571 (citing Fed.R.App.P. 41). Yet, the fact that
a mandate has not yet issued, as Defendants put it, “is not a reasonable basis for the Court to
proceed as if the decision did[ not] exist.” (Reply, ECF No. 2498, PageID 127771). If positions
were reversed and the Sixth Circuit had ordered his execution enjoined, Henness would surely not
have argued the decision was not binding until the mandate issued, even though this Court could
not issue an injunction until that date.
Cleveland Jackson’s authority for his position is not in point. In Mason v. Mitchell, 729
F.3d 545 (6th Cir. 2013), Judge Moore makes the point that a federal appellate judgment becomes
final when the mandate issues. Id. at 551. But the court makes no suggestion that a published
decision of the Court of Appeals has no stare decisis effect prior to issuance of the mandate.
Youghiogheny & Ohio Coal Co. v. Milliken, 200 F.3d 942 (6th Cir. 1999), is to the same effect as
Mason. This Court -- the court that entered judgment in the Henness case at the trial level -- fully
understands it has no jurisdiction in that case until the mandate issues.2 But that is a different issue
2 Warren Henness is also part of this consolidated § 1983 method of execution case. But cases consolidated
under Fed. R. Civ. P. 42(a) retain their separate identity. Patton v. Aeroject Ordnance Co., 765
F.2d 604 (6th Cir. 1985); 9 Wright & Miller, FEDERAL PRACTICE AND PROCEDURE: CIVIL 3D §
2382. “[C]onsolidation is permitted as a matter of convenience and economy in administration,
but does not merge the suits into a single cause, or change the rights of the parties, or make those
who are parties in one suit parties in another.” Johnson v. Manhattan Ry. Co., 289 U.S. 479 (1933);
Lewis v. ACB Business Servs., Inc., 135 F.3d 389 (6th Cir. 1998). This Court is therefore not
precluded from acting in the Cleveland Jackson, James Hanna, Kareem Jackson or Melvin Bonnell
matters by the absence of a mandate in Henness. The parties implicitly recognize this and no one
has argued to the contrary.
from the stare decisis effect of the published opinion in Henness.3
Cleveland Jackson also cites the undersigned’s opinion in Campbell v. Jenkins, 2016 U.S.
Dist. LEXIS 194460 (S.D. Ohio Apr. 27, 2016). The question at issue in that case at the time that
decision was filed was whether to rely on a decision of the Sixth Circuit in a case in which the
Attorney General’s motion for clarification was still pending before the circuit court. As citing
counsel know full well, this Court’s caution was appropriate, given what the Sixth Circuit
eventually did on the motion for clarify.
It is certainly possible that Henness will be reversed, modified, or further explained by the
Sixth Circuit en banc or the Supreme Court, but those are the only two institutions with power or
authority to do so, but until or unless they do so, we are bound by Henness as published.
Cleveland Jackson Can Meet the First Prong of Glossip
Cleveland Jackson argues that, even if Henness is binding precedent, he can meet its
“newly-articulated test” for the first prong of Glossip. To that point, he quotes significant portions
of his experts’ proffered reports which, he argues, contain evidence sufficient to meet the first and
second prongs of Glossip (Response, ECF No. 2490 PageID 127579-127657, 127667-75). These
expert reports are all declarations compliant with 28 U.S.C. § 1746 and the legal equivalent of
sworn affidavits. A District Court may decide a preliminary injunction motion on the basis of
affidavits and other documentary evidence, without holding an evidentiary hearing: In re Eagle-
Picher Indus., Inc., 973 F.3d 855, 858-59 (6th Cir. 1992) (emphasis added), quoting Sec. and Exch.
3 The Court pretermits any discussion at this point of the law-of-the-case doctrine impact of Henness in these four
consolidated cases. But see discussion of this point in In re Ohio Execution Protocol Litig. (Henness), 2019 U.S. Dist.
LEXIS 8200, *29-35, 2019 WL244488 (S.D. Ohio Jan. 14, 2019)
Comm’n v. G. Weeks Sec., Inc., 678 F.2d 649, 651 (6th Cir. 1982); citing Fed. Sav. and Loan Ins.
Corp. v. Dixon, 835 F.2d 554, 558 (5th Cir. 1987); Wright, Miller, & Kane, Federal Practice and
Procedure, Civil 3d, § 2949.
As Cleveland Jackson’s Response makes clear and as was expected from prior preliminary
injunction hearings in this consolidated case, the factual questions to be decided on the motion for
preliminary injunction are largely questions of weighing the opinions of experts on the use of
midazolam as the initiatory drug in Ohio’s execution protocol. The Court scheduled the production
of expert reports so that there would be ample time for the parties to respond to one another’s
experts. Those reports are very detailed and, from past experience, the expert testimony would
very likely be repetitious of the reports.
An oft-cited reasons for deciding matters on the basis of live testimony is the ability of the
fact finder to evaluate the credibility of witnesses. Many of Cleveland Jackson’s experts have
testified before this Court in previous hearings on the first prong of Glossip, and the Court had
ample opportunity to evaluate their credibility insofar as that evaluation might be based on
demeanor. See, e.g., In re Ohio Execution Protocol Litig. (Henness), 2019 U.S. Dist. LEXIS 8200.
More importantly, the credibility of these experts is very largely based on their curricula vitae, all
of which have been supplied. Additionally, Doctors Antognini and Edgar were each subjected to
a day-long in-court Daubert hearing September 9-10, 2019, allowing an additional opportunity to
assess their demeanor, particularly their candor.
In addition to the execution eyewitness accounts made a part of the record in the Henness
hearing, Cleveland Jackson seeks to present additional eyewitness reports from lethal injection
executions in 2019 that used midazolam (Response, ECF No. 2490, PageID 127659-61). Having
reviewed summaries of their expected testimony, the Court finds they are not are not substantially
different from the eyewitness accounts of prior midazolam-initiated executions so that their
testimony would be cumulative. Finally, their accounts have been furnished to experts and form
the basis of expert opinions.
Henness Does Not Preclude a Hearing on Cleveland Jackson’s Proposed Alternative
Methods of Execution
Cleveland Jackson’s third argument for not vacating the evidentiary hearing is that he has
evidence on his proposed alternative methods of execution which has never been heard by this
Court in prior preliminary injunction hearings.
As to Cleveland Jackson’s third argument, the Court is bound by the Sixth Circuit’s holding
that an inmate’s “failure to satisfy Glossip’s first prong necessarily means that he cannot
demonstrate a likelihood of success on the second prong.” Henness, 2019 U.S. App. LEXIS 27365
at *8. Thus, taking oral testimony on the Cleveland Jackson’s proposed alternatives would
“result[] in inefficient management of judicial resources and impose[] unnecessary expense.”
Eagle-Picher, 953 F.3d at 859. Moreover, the Court has evidence in the form of deposition
testimony and expert reports which it can consider if it finds for Cleveland Jackson on the first
Glossip prong.
Henness Was Wrongly Decided
During a telephone status conference on September 17, 2019, counsel for Cleveland
Jackson expounded on his fourth argument—that Henness contravened Bucklew and Glossip, and
that this Court is bound by those two Supreme Court decisions (Transcript Pending). The latter
point is true, but ignores the reality that the Court is bound by the Sixth Circuit’s interpretation of
Bucklew and Glossip—specifically, the interpretation set forth in Henness. As the Sixth Circuit
reminded this Court in Fears, Supreme Court precedent may be binding on lower courts in ways
broader than a narrowly-construed holding. 860 F.3d at 886. The place to argue that Henness
contravenes established Sixth Circuit or Supreme Court precedent is in seeking an en banc review
or a writ of certiorari. This Court declines to hear live testimony offered only on the premise that
Henness may be reversed.
James Hanna
Hanna’s alternative argument in support of an evidentiary hearing is premised solely on
his claim that he “will have a paradoxical reaction to the midazolam, which will heighten his
sensation of pain, creating even greater pain and suffering with a protocol that already causes
extreme, unconstitutional pain and suffering.” (Response, ECF No. 2491, PageID 127696-97,
citing Third Amended Indiv. Supp. Compl., ECF NO. 2396, PageID 115223-24, ¶¶ 1899-1901).
He lists four experts whom he intends to offer as witnesses at an evidentiary hearing, each of whom
he identified in his Motion for Preliminary Injunction: Howard Fradkin, Ph.D.; David Lubarsky,
M.D.; Douglas Scharre, M.D.; and Craig Stevens Ph.D. Id. at PageID 127698 (citing Motion for
Preliminary Injunction, ECF No. 2435, PageID 117022-24; Fradkin Report, ECF No. 2435-1,
PageID 117034-914; Scharre Decl., ECF No. 2435-4, PageID 117121-23).
However, Hanna has intended to bring a paradoxical reaction claim since filing his Second
Amended Individual Supplemental Complaint on April 12, 2018 (ECF No. 1501, PageID 61322-
4 The Court notes that Dr. Fradkin’s Report is undated, and thus, does not qualify as acceptable evidence under 28
U.S.C. § 1746.
23, ¶¶ 1899-1901). Yet, there is no indication that he attempted to develop any evidence prior to
August 3, 2019 (Scharre Decl., ECF No. 2435-4, PageID 117123). Indeed, Drs. Lubarsky and
Stevens have not yet filed reports as to the paradoxical reaction issue, and Hanna intimates that
they cannot testify before October 1, 2019 (Motion for Preliminary Injunction, ECF No. 2435,
PageID 117023-24). Absent neuroimaging, Hanna has not stated that Dr. Scharre would testify
about any paradoxical reaction that Hanna would likely experience. Finally, while Dr. Fradkin
has conducted interviews of Hanna (Fradkin Report, ECF No. 2435-1, PageID 117041, ¶ 79),
Hanna does not claim that Dr. Fradkin can offer any evidence in support of Hanna’s underlying
claim that midazolam will cause a paradoxical reaction due to the drug’s pharmacology and
Hanna’s neurological issues; nor could he reasonably do so. As none of Hanna’s proposed
evidence would be properly before the Court, the Court finds that Hanna has not shown good cause
to hold an evidentiary hering.
Melvin Bonnell
“In the alternative, Bonnell requests that if this Court sees fit to vacate Cleveland Jackson’s
hearing at this time, Plaintiff Bonnell would request that his Motion for Preliminary Injunction, a
Stay of Execution, and an Evidentiary Hearing be denied without prejudice[.]” (Response, ECF
No. 2489, PageID 127475). Bonnell argues that, because his execution date is not until February
12, 2020, he should “allowed to litigate, in his own hearing, these same, or similar, issues at a later
date.” Id.
Absent an intervening change of law, there is not good cause for Bonnell to have a hearing
on any issues that he has in common with Cleveland Jackson, for the reasons set forth above.
However, he also claims that “this Court should still hold a separate evidentiary hearing on whether
Bonnell can prove that, due to his subjective individual characteristics, the level of pain that he
would experience would be ‘unconstitutionally severe,’ pursuant to the recent decision in
Henness.” (Motion, ECF No. 2489, PageID 127476). Given that there is almost five months’ time
until Bonnell’s execution, the Court does not find, as Defendants assert, that Bonnell’s “‘individual
characteristics’ claim is dilatory[,]” (Reply, ECF No. 2499, PageID 127779), such that the Court
would be precluded from considering those subjective characteristics in a renewed motion. Thus,
the Court vacates the hearing as to Bonnell and intends to deny his Motion for Preliminary
Injunction5 without prejudice to refiling as to any claim arising out of his subjective individual
characteristics. However, any such motion must be filed not later than December 1, 2019, and be
mindful of the heavy burden Bonnell must meet on prong one of Glossip post-Henness.
Kareem Jackson
As stated above, Kareem Jackson did not respond to the Court’s Order. Accordingly, the
Court vacates the hearing as to Kareem Jackson
CONCLUSION
For the foregoing reasons, the evidentiary hearing scheduled September 24, 2019, for
Plaintiffs Cleveland Jackson, James Hanna, Kareem Jackson, and Melvin Bonnell is VACATED.
The Court will convene on September 24, 2019, at 9:30 a.m. to hear motions to admit into evidence
5 Dismissal awaits certification from Defendants that Ohio’s existing supply of execution drugs has been destroyed
(See Defendants’ Motion for Permission to Remove and Destroy (ECF No. 2487) and Notation Order granting (ECF
No. 2488).
exhibits the parties intended to introduce at the hearing and to hear oral arguments on the motions
for preliminary injunction of Cleveland Jackson and James Hanna.
The Hanna and Bonnell cases are referred to the undersigned under 28 U.S.C. § 636(b)
rather than under § 636(c) as is the case with Cleveland Jackson. Thus Hanna and Bonnell have
the right to appeal this Order to Judge Sargus; any such appeal must be filed no later than 5:00
p.m. on Thursday, September 19, 2019; any response thereto must be filed no later than 5:00 p.m.
on Friday, September 20, 2019. Hanna and Bonnell are reminded that Magistrate Judge orders on
non-dispositive pre-trial matters remain effective unless stayed or reversed.
September 19, 2019.
s/ Michael R. Merz
United States Magistrate Judge