# In Re: Ohio Execution Protocol Litigation

> District Court, S.D. Ohio · October 7, 2019

URL: https://www.frixlaw.com/law-library/cases/10374038

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** October 7, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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
James Hanna and Melvin Bonnell :

SUPPLEMENTAL OPINION ON PLAINTIFF BONNELL AND
HANNA’S APPEALS FROM ORDER VACATING EVIDENTIARY
HEARING AND MODIFICATION OF THAT ORDER

This consolidated § 1983 method-of-execution action is before the Court on Objections by
Plaintiffs James Hanna (ECF No. 2515) and Melvin Bonnell (ECF No. 2514) to the Magistrate
Judge’s Decision and Order Vacating Evidentiary Hearing (ECF No. 2507). Also before the Court
are Defendants’ Responses (ECF Nos. 2523 and 2524), and the Reply and Supplemental
Memorandum of Hanna (ECF Nos. 2557 and 2558). District Judge Sargus has recommitted the
matter for reconsideration in light of the objections (ECF No. 2555).

Overview

The litigation history regarding Bonnell and Hanna’s Motions for Preliminary Injunction
is important. On January 14, 2019, the Court denied preliminary injunctive relief for Warren K.
Henness who was then the next Plaintiff scheduled to be executed (ECF No. 2133). On January
25, 2019, Governor Mike DeWine reprieved Henness’s execution until September 12, 2019
(Reprieve of Warren Henness, ECF No. 2146-3, PageID 105826), at which time Plaintiff
Cleveland Jackson’s became the next scheduled execution, then set for May 29, 2019. On
February 6, 2019, slightly less than six months before that scheduled execution date, Jackson had
not yet filed a motion for preliminary injunction, and the Court ordered that he do so by February

14, 2019 (Scheduling Order, ECF No. 2154). The same Order scheduled events through an
evidentiary hearing to be held on April 9, 2019.
In response to this Court’s decision in the Henness case, Governor DeWine ordered the
Department of Rehabilitation and Corrections to prepare a new lethal injection protocol. On March
7, 2019, in conjunction with that order, the Governor reprieved Cleveland Jackson’s execution to
November 13, 2019; Kareem Jackson’s to January 16, 2020; and Gregory Lott’s to March 12, 2020
(Warrants of Reprieve, ECF No. 2180). James Hanna’s date of December 11, 2019, and Melvin
Bonnell’s of February 12, 2020, had been set on September 1, 2017 (Warrants of Reprieve, ECF
No. 1193-1). Thus, the order of executions that prevailed from March 7, 2019, until September

30, 2019, was in place: Cleveland Jackson, James Hanna, Kareem Jackson, Melvin Bonnell,
Gregory Lott, and John Stumpff.1 Given those reprieves and the promise that a new protocol was
in the offing, the Court vacated the dates set for Cleveland Jackson on February 6 and then set a
new complete schedule on May 7, 2019 (Opinion and Scheduling Order, ECF No. 2206). At this
point, Hanna was approximately seven months from execution and had not yet filed a motion for
preliminary injunction.

1 Excluding Warren Henness because he had already had a preliminary injunction hearing. Also excluding Angelo
Fears, whose execution had been set for October 17, 2019, but who was resentenced to life imprisonment on May 22,
2019 (Unopposed Motion to Dismiss, ECF No. 2238, PageID 108020).

2
Despite Defendants’ counsel’s representation on March 7, 2019, that a new protocol would
likely be issued within thirty days (Tr., ECF No. 2183, PageID 106724), as the year wore on, it
began to appear less and less likely that the State would adopt a new execution protocol any time
soon. On July 17, 2019, the Court noted the “relative imminence” of execution dates for Henness,
Hanna, Bonnell, and the two Jackson plaintiffs. The Magistrate Judge noted that, unlike the cases

of former Plaintiffs Phillips, Otte, Tibbetts, Campbell, and Van Hook, and Plaintiffs Henness and
Cleveland Jackson, there was no unanimous consent for plenary Magistrate Judge jurisdiction for
any of the other plaintiffs. Consequently, any preliminary injunction motions would have to be
handled on a report and recommendation basis, adding time to the schedule to allow for objections.
Fed.R.Civ.P. 72(b). The Magistrate Judge therefore ordered Bonnell, Hanna, and Kareem Jackson
to file any motion for preliminary injunction by September 3, 2019, which in Hanna’s case would
only be 99 days before his scheduled execution (ECF No. 2275).
From then until September 11, 2019, the Court proceeded on the basis that the preliminary
injunction hearing set for eight days beginning September 24, 2019, would be for Hanna, Bonnell,

Cleveland Jackson, and Kareem Jackson. Throughout that period, the Magistrate Judge expected
that the protocol in suit was the version of 01-COM-11 adopted on October 7, 2016; whether or
not a new protocol would be adopted before Cleveland Jackson’s preliminary injunction hearing
was unknown to the Court and Plaintiffs and Defendants’ counsel continued to advise throughout
the period that they had no knowledge about when a new protocol might be adopted.
On September 11, 2019, the United States Court of Appeals for the Sixth Circuit decided
the Henness appeal. In re: Ohio Execution Protocol Litig. (Henness), No. 19-3064, ___ F.3d
____, 2019 U.S. App. LEXIS 27365 (6th Cir. Sept. 11, 2019). In light of that decision, the

3
Magistrate Judge ordered the parties to show cause why the evidentiary hearing should not be
vacated (Order to Show Cause, ECF No. 2478) and, after considering the Responses of Bonnell,
Hanna, and Cleveland Jackson (ECF Nos. 2489-2491), vacated the presentation of live testimony
at the hearing (Order Vacating Evidentiary Hearing, ECF No. 2507, filed September 19, 2019).
Bonnell and Hanna filed their respective Appeals the same day (ECF Nos. 2514 and 2515).2

As a non-dispositive pre-trial order, the Order remained effective in the absence of a stay.
S.D. Ohio Civ.R. 72.3. Neither Bonnell nor Hanna sought a stay either from the Magistrate Judge
or District Judge Sargus. On September 24, 2019, the Court heard oral argument on Plaintiffs’
Motions for Preliminary Injunction and admitted, over Defendants’ general objection, all exhibits
proffered by Bonnell, Hanna, and Cleveland Jackson (Minute Entry, ECF No. 2559). Thus the
hearing went forward on the basis set forth in the Order.
During argument, counsel for Bonnell indicated his intent to voluntarily withdraw his
preliminary injunction motion as it pertained to his individual characteristics without prejudice to
refiling on or before December 1, 2019. The Court construed counsel’s statement as an oral motion

and orally granted it (Trans. Pending). After argument, Hanna filed a supplemental memorandum
in support of his appeal to address issues raised for the first time at argument (ECF No. 2558).

2 The parties unanimously consented to the Magistrate Judge’s plenary jurisdiction as to Plaintiff Cleveland Jackson;
thus, the hearing as to Cleveland Jackson is vacated. Kareem Jackson never responded to the Show Cause order that
the Magistrate Judge issued before vacating the evidentiary hearing; thus, the Order remains unchanged as to Kareem
Jackson.

4
Standard of Review

When a party appeals a Magistrate Judge’s non-dispositive order, the district court must
“modify or set aside any part of the order that is clearly erroneous or is contrary to law.”
Fed.R.Civ.P. 72(a). Likewise, 28 U.S.C. § 636(b)(1)(A) provides: “A judge of the court may

reconsider any pretrial matter … where it has been shown that the magistrate judge’s order is
clearly erroneous or contrary to law.” The “clearly erroneous” standard applies to factual findings
and the “contrary to law” standard applies to legal conclusions. Gandee v. Glaser, 785 F. Supp.
684, 686 (S.D. Ohio 1992) (Kinneary, J.). “A finding is clearly erroneous when the reviewing
court on the entire evidence is left with the definite and firm conviction that a mistake has been
committed.” Heights Cmty. Cong. v. Hilltop Realty, Inc., 774 F.2d 135, 140 (6th Cir. 1985). “A
magistrate judge’s decision is ‘contrary to law’ when the magistrate judge has ‘misinterpreted or
misapplied applicable law.’” Hood v. Midwest Savings Bank, Case No. 2:97-cv-218, 2001 U.S.
Dist. LEXIS 24512, at *2 (S.D. Ohio Mar. 22, 2001) (Holschuh, J.), aff’d 95 F. App’x 768 (6th Cir.
2004), quoting Pharm. Sales and Consulting Corp. v. J.W.S. Delayau Co., Inc., 106 F. Supp. 2d

761, 764 (D.N.J. 2000).

James Hanna

Hanna argues that “even under Henness, he can satisfy the required showing to warrant
injunctive relief.” (Hanna Appeal, ECF No. 2515, PageID 128382). Hanna continues: “Live
testimony, including from some of the world’s foremost experts in their fields, should be taken to
add to the sworn declarations and other paper evidence already in the record in support of their
5
motions.” Id. Hanna raises four distinct objections to the denial of live testimony, some with
several sub-points.

First Objection: Plaintiff Hanna will present evidence at an evidentiary hearing that
will directly answer the questions Henness found unanswered. (Hanna Appeal,
ECF No. 2515, PageID 128384-97).

In support of this objection, Hanna quotes at length from his experts’ reports on the issue
of whether an inmate injected with 500 milligrams of midazolam would still be likely to experience
severe pain. Yet, the detailed expert reports, from which Hanna quotes at length, have been
admitted in evidence (Minute Entry, ECF No. 2559), and nowhere within the objection does Hanna
explain what live testimony would have added3. Moreover, as stated in the Order, past expert
testimony on prior preliminary injunction motions in this consolidated case has often been
repetitive of the expert reports, and undersigned has had ample opportunity to assess the credibility
and demeanor of most of the plaintiffs’ experts when have appeared live during those hearings.
(ECF No. 2507, PageID 127897-98). Hanna’s Appeal does not address that point. As Hanna has
not explained how he is prejudiced, the objection is not well-taken.

Second Objection: The Magistrate Judge’s order vacating an evidentiary hearing
should be reviewed de novo because it is clearly erroneous and contrary to law.
(ECF No. 2515, PageID 12897-904).

One argument that Hanna offers in support of his objection urging de novo review is that
“[a]n evidentiary hearing is needed on a preliminary injunction motion if ‘material facts are [] in
dispute.’” (Hanna Appeal, ECF No. 2515, PageID 128398, quoting Certified Restoration Dry

3 Although this opinion is being rendered after the hearing was concluded, if a compelling case of live testimony
were made, the hearing could be reconvened.
6
Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 553 (6th Cir. 2007)). But Certified
Restoration proceeds to quote the Weeks case that the Magistrate Judge cited in the Order vacating
the hearing. (ECF No. 2507, PageID 127896-97, citing S.E.C. v. G. Weeks Sec., Inc., 678 F.2d
649, 651 (6th Cir. 1982)). Specifically, Certified Restoration termed Weeks “the leading case on
the subject,” and relied on it for the proposition that “where resolution of questions surrounding

whether to issue injunctive relief turns on legal rather than factual determinations, the taking o[f]
oral testimony is not a prerequisite to a fair hearing.” Certified Restoration, 511 F.3d at 553,
quoting Weeks, 678 F.2d at 651. The evidence set forth in Cleveland Jackson’s Response (ECF
No. 2490, PageID 127579-636), which Hanna and Bonnell incorporated by reference (Bonnell
Response, ECF No. 2489, PageID 127464; Hanna Response, ECF No. 2491, PageID 127695), is
not substantively different than that offered by Plaintiff Warren Henness in support of his motion
for preliminary injunction. The Sixth Circuit considered that evidence and concluded, contrary to
this Court, that Henness had not satisfied the first prong of Glossip v. Gross, 135 S.Ct. 2726 (2015).
Henness, 2019 U.S. App. LEXIS 27365, at *4-7. Accordingly, the material dispute for Hanna is

one of law—whether Henness was correctly decided—rather than of fact, and the decision not to
hold a hearing with live testimony comports with Certified Restoration.
Hanna also asserts in urging de novo review that if the Magistrate Judge read Henness as
precluding any further challenge to Ohio’s midazolam execution protocol, then that was an error
of law. (Hanna Appeal, ECF No. 2515, PageID 128398-400). To that point, Hanna additionally
asserts that if the Magistrate Judge concluded that the records for Hanna and Cleveland Jackson
would be identical to the record established by Henness, then that is also clearly erroneous. Id. at
PageID 128400-01. Yet, nowhere did the Magistrate Judge state that Henness precluded any

7
further attack on Ohio’s midazolam execution protocol, or that the reason no hearing is necessary
is because the record that Hanna would create would be identical to that of Henness.
Hanna further asserts that Henness actually weighs in favor of holding an evidentiary
hearing with live testimony because the decision in Henness was rooted in a determination that
there was insufficient evidence to support the Magistrate Judge’s factual findings, and because the

allegations offered by Hanna, as well as Cleveland Jackson and Bonnell, go well beyond the record
Henness created (Hanna Appeal, ECF No. 2515, PageID 128401-02). Hanna also argues that the
Magistrate Judge’s decision to vacate the hearing was in error “because of the reasons further
articulated in the responses to the Magistrate Judge’s Show Cause Order.” Id. at PageID 128402.
Yet, the Magistrate Judge admitted and is carefully considering the reports, declarations, affidavits,
and other paper evidence offered by Plaintiffs. Hanna’s second objection is also not well taken.

Third Objection: This Court should reinstate the long-planned evidentiary hearing
because it is crucial to permit Hanna to develop a complete record on his subject
claims, particularly when the decision in Henness was so wrongly decided and thus
vulnerable to further appellate review. (ECF No. 2515, PageID 128404-07).

The Magistrate Judge construes Hanna’s arguments about Henness’s being wrongly
decided and not being final as an effort to preserve those arguments for appeal. The Magistrate
Judge rejects as unsupported and untenable any argument that Henness is not binding just because
it is not final4. Further, as discussed above, the Magistrate Judge’s decision did not foreclose any
development of the record except for preventing live testimony by experts whose reports were all

4That is, Henness is not final in that there is still the possibility of a rehearing en banc or the grant of certiorari by the
Supreme Court. Moreover, the mandate has not yet issued in Henness to return jurisdiction of that case to this
Court. But Henness is a published opinion of the Sixth Circuit binding on this Court, other district courts in the
Sixth Circuit, and other panels of the Sixth Circuit unless it is vacated or reversed.
8
admitted.
As for Hanna’s arguments for why Henness was wrongly decided, those arguments are
properly addressed in the first instance to the Sixth Circuit and/or to the Supreme Court. To that
point, the Magistrate Judge is of the view that it would be a profound waste of time and resources
to conduct an eight-day live hearing before legal issues so significant as to be viewed as threshold

issues are resolved by the Sixth Circuit and/or Supreme Court. It seems disingenuous to argue that
the sought-after hearing can on the one hand be “long-planned” and on the other be precisely
attuned to precedent only eight days old when the objections were filed.

Fourth Objection: Hanna appeals the Magistrate Judge’s conclusions regarding his
individualized paradoxical reaction claim because his counsel cannot be reasonably
described as less than diligent for not asserting the injunctive relief claim earlier.
(ECF No. 2515, PageID 128407-23).

Hanna has complied with the Magistrate Judge’s scheduling orders, but he still has not
adequately explained why he waited fifteen months to begin developing expert evidence on his
paradoxical reaction claim. Hanna has known about his paradoxical reaction claim since at least
April 12, 2018 (Second Am. Indiv. Supp. Compl., ECF No. 1501, PageID 61322-23, ¶¶ 1899-
1901). Since September 1, 2017, Hanna has known that he has a December 11, 2019, execution
date (Warrant of Reprieve of James Hanna, ECF No. 1193-1, PageID 44498), while Cleveland
Jackson, until September 30, 2019, had a November 13, 2019 execution date (Warrants of
Reprieve of Cleveland Jackson, ECF Nos. 2180-1, 2571-1). At the time the Magistrate Judge
issued his Order, Hanna was on the same timeline as Cleveland Jackson, given that the Magistrate
Judge needs to issue a report and recommendations on his motion for preliminary injunction after
9
it is ripe5. Thus, contrary to Hanna’s argument (Hanna Appeal, ECF No. 2515, PageID 128415),
and notwithstanding any uncertainty surrounding whether Ohio will in fact seek to execute Hanna
using the October 7, 2016, protocol, Hanna’s execution is certainly now imminent for purposes of
litigating his motion for preliminary injunction. Further, Hanna and Cleveland Jackson have the
same counsel, and despite Hanna’s emphasis that his counsel has been focused on Cleveland

Jackson as the “next man up[,]” (Hanna Supp. Appeal, ECF No. 2558, PageID 129635-36), that
focus does not excuse any failure to ensure that evidence had been developed in support of Hanna’s
paradoxical reaction claim.
The Magistrate Judge is not unsympathetic to the time and funding constraints
encumbering Hanna’s legal team, and is acutely aware both that litigating this case one preliminary
injunction at a time has undoubtedly strained the litigants and Court and that the need to do so has
come from Defendants’ intransigence—specifically, their persistent refusal to agree to a stay
pendente lite and/or a stay pending the implementation of a new execution protocol—or from their
decision to schedule twenty-nine executions between December 11, 2019, and March 14, 2024

(Hanna Supp. Appeal, ECF No. 2558, PageID 129636). Yet, as for any argument that Hanna’s
claims for injunctive relief are timely under “longstanding custom and practice in this case,”
(Hanna Appeal, ECF No. 2515, PageID 124817), that this case has been litigated in a pants-on-
fire manner in the past is not a good argument that it should continue to be litigated that way going
forward.
Out of an abundance of caution and in keeping with the Magistrate Judge’s willingness to

5 A motion for preliminary injunctive relief is expressly made a dispositive matter by 28 U.S.C. § 636(b)(1)(A)
requiring a report and recommendations. Fed.R.Civ.P. 72(b) provides, unless modified by court order, a roughly
one month period for objections and responses to a Magistrate Judge report, adding at least thirty days to the time
before a decision on such a motion is ripe for appeal to the circuit court.
10
accept and consider expert reports, declarations, affidavits, and other filed evidence, Hanna will
have until 5:00 p.m. on October 15, 2019, to file any compliant reports, declarations, and
supporting affidavits as identified in his September 3, 2019 Motion for Stay of Execution,
Preliminary Injunction, and Evidentiary Hearing. (ECF No. 2435). That includes filing a
corrected expert report from Howard Fradkin, Ph.D., which, contrary to Hanna’s assertion (Hanna

Appeal, ECF No. 2515, PageID 128411, n.3), does not comport with 28 U.S.C. § 1746. The date
reflected on Dr. Fradkin’s Declaration reads “August __j__, 2019” (ECF No. 2435-1, PageID
117085). That date appears to be the letter “j,” and that does not comply with § 1746.
Finally, Hanna argues that “in the controlling scheduling order, the Magistrate Judge did
not require Hanna to present expert reports with his motion for preliminary injunction. Indeed,
that has never been the requirement in any of the many injunctive relief proceedings in this
consolidated litigation.” (Hanna Appeal, ECF No. 2515, PageID 128413). Yet, “paradoxical
reaction” is a novel claim, which Defendants could not fairly be ordered to defend armed with
nothing more than the precis of expected testimony. For these reasons, Hanna’s objection is not

persuasive.

First Supplemental Objection: [T]here is an inherent contradiction in denying
Hanna any review at all of his paradoxical reaction injunction (sic) relief claim
based on the notion that review of such issues is of such great importance that more
than three months for review is desirable (ECF No. 2558, PageID 129636-37
(emphasis in original)).

As discussed above, the Order does not foreclose any review of Hanna’s paradoxical
reaction claim. Indeed, this Opinion expressly authorizes Hanna to submit evidence, including
expert reports, on that paradoxical reaction claim, including but not limited to reports from Dr.
11
Fradkin, David A. Lubarsky, M.D., and Craig W. Stevens, Ph.D (See Hanna Appeal, ECF No.
2515, PageID 128413 (stating his intent to secure reports from Drs. Lubarsky and Stevens after
October 1, 2019)).

Second Supplemental Objection: Hanna was not on notice that the rules for seeking
injunctive relief in this case would be changed for the first time for his case, and
that he would be faulted for not having presciently filed earlier his motion for
injunctive relief on the paradoxical reaction claim. . . . That disparate treatment
significantly burdens his right to review of alleged violations of his Eighth
Amendment right against cruel and unusual punishment, and arbitrarily treats him
differently as a class of one (ECF No. 2558, PageID 129637-38).

Without conceding the correctness of Hanna’s argument that the Magistrate Judge changed
“the rules for seeking injunctive relief,” Hanna’s objection is still unavailing. As discussed above,
other than his counsel’s being occupied with Cleveland Jackson’s injunctive relief motion, Hanna
does not explain why he waited fifteen months from the first time the paradoxical reaction claim
was raised to develop evidence in support. Further, the Court will consider evidence submitted in
support of that claim, so long as it is submitted on or before October 15, 2019. Thus, Hanna is
being provided a meaningful opportunity to be heard on his individual claim, which is what due
process requires. Armstrong v. Manzo, 380 U.S. 545, 552 (1965). Due process does not, as Hanna
would seem to urge, require the Court to allow him to file his Motion for Preliminary Injunction
“just days or weeks before a scheduled execution date” (Hanna Appeal, ECF No. 2515, PageID
128417 (emphasis in original)), simply because former plaintiffs in this case have done so.
Notably, Hanna does not cite any caselaw for the proposition that requiring him to file at a time
farther out from his execution date than some former plaintiffs somehow violates due process or
can form the basis for a viable “class of one” Equal Protection claim.
12
Finally, Hanna concedes that he was required to file his motion for preliminary injunction
ninety-nine days before his scheduled execution date (Supp. Appeal, ECF No. 2558, PageID
129639). Yet, the Magistrate Judge required Plaintiff Henness to file a motion for preliminary
injunction no later than September 28, 2018 (Scheduling Order, ECF No. 1914, PageID 74799)—
138 days before his then-scheduled execution date of February 13, 2019 (Reprieve of Warren

Henness, ECF No. 1193-1, PageID 44496). Thus, even if a class of one claim were viable in
theory, it is not a viable claim for Hanna.
Hanna overstates his case by claiming that the Magistrate Judge has “changed the rules for
seeking injunctive relief.” There is no prior ruling in this case that preliminary injunction motions
are timely if they are brought at some specific time before a scheduled execution. The Magistrate
Judge has explained at some length application of the law of the case doctrine to this consolidated
case, concluding:
Like cases should be decided alike, and Henness’s case is very like
those of former Plaintiffs Phillips, Otte, Tibbetts, and Campbell.
Therefore, prior rulings in this consolidated case, including those
made by Judge Frost, will be treated as very persuasive precedent,
but not binding under the law of the case doctrine. Prior rulings in
the case, just like precedent from other courts, will be analyzed and
applied based on the context in which they were made and therefore
applied with appropriate nuance, and not like proof-texts.

(ECF No. 2133, PageID 105134-35.) But again there is no prior ruling, at least none cited in the
instant motion papers, that a certain amount of time prior to execution counts as “imminent.” To
show irreparable harm, a “[p]laintiff must show that, absent an injunction, he will suffer ‘actual
and imminent harm rather than harm that is speculative or unsubstantiated.’’ Pettus-Brown v.
Phelps, No. 2:18-cv-82, 2018 U.S. DIst. LEXIS 193703, at *10 (S.D. Ohio Nov. 14, 2018) (Jolson,
Mag. J.), quoting Abney v. Amgen, Inc., 443 F.3d 540, 552 (6th Cir. 2006). But Wright & Miller
13
tie “imminence” to the question whether the harm will be suffered before a trial can be held. 11A
CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND
PROCEDURE, CIVIL § 2948.1 (3d ed. 1998).
The context in which Hanna is now being forced to litigate his preliminary injunction
motion is unique: there has never before in this case been a situation where the State projected a

new protocol to be imminent but then did not perform in accordance with that expectation, but also
declined to agree to a stay pending adoption of the projected new protocol. Nonetheless, Hanna
is not being treated disparately in any “class of one” sense.

Third Supplemental Objection: The Magistrate Judge also stated in court that
Hanna has always known the protocol that would be used and therefore should have
litigated the issues sooner. Not so. The midazolam protocol that is the subject of
his amended complaint has been repudiated by the Governor, and a new protocol
has been drafted at the Governor’s order. . . . It is unfair to fault Hanna for not
prematurely spending thousands of taxpayer dollars on litigating a protocol that
apparently will never be used (ECF No. 2558, PageID 129638).

As Hanna and Henness also have the same counsel, Hanna has been on notice since at least
March 18, 2019, that the State was reserving its right to use the October 7, 2016, protocol “even if
the State develops an alternative protocol rather than an additional one[.]” (State Appellees’
Response to Motion to Extend Briefing Schedule, Henness v. DeWine, 6th Cir. No. 19-3064, ECF
No. 22, Page 2 (emphasis in original)). Moreover, while Charles Schneider, Defendants’ trial
attorney, represented during a March 7, 2019, in-person conference that he anticipated a new
protocol’s being announced “within approximately 30 days” (Tr., ECF No. 2183, PageID 106724),
at numerous subsequent telephonic status conferences, Mr. Schneider repeatedly stated that he had
no information about a new protocol, and that the parties had no choice but to litigate preliminary
14
injunction motions under the existing protocol.

Fourth Supplemental Objection: Moreover, the evidence admitted by the
Magistrate Judge at the September 24, 2019 hearing demonstrates, inter alia, that
his alleged alternative of a firing squad—because it causes nearly instantaneous
lack of sensation and death, unlike the midazolam protocol which causes severe
pain and suffering over the course of many minutes—is “a feasible and readily
implemented alternative method of execution the State refused to adopt without a
legitimate reason, even though it would significantly reduce a substantial risk of
severe pain.” (ECF No. 2558, PageID 129640, quoting Bucklew v. Precythe, 139
S. Ct. 1112, 1129 (2019)).

Despite the Sixth Circuit’s reviewing and affirming this Court’s determination that
Henness had not met the second prong of Glossip, Henness, 2019 U.S. App. LEXIS 27365 at *8-
9, the appellate court appears to view the second prong of Glossip as relevant only if a plaintiff can
satisfy the first prong: “[B]ecause 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 . . . substantial risk of severe
pain’ caused by the existing method.” Id. at *7-8, quoting Bucklew, 139 S.Ct. at 1129. Thus, the
Court need not consider this objection until and unless it finds that Hanna has met his “burden to
show” that the existing protocol presents “a substantial risk of severe pain[,]” Glossip, 135 S.Ct.
at 2740, in light of the decisions in Bucklew and Henness.
As Hanna’s objections are unavailing, premature, or otherwise not well-taken, the Order
Vacating Evidentiary Hearing should not be modified with respect to him, except for the proviso
that expert reports and other documentary evidence may be submitted in support of his paradoxical
reaction claim on or before October 15, 2019.

15
Melvin Bonnell

Bonnell objects “to the vacation of the September 24, 2019 – October 3, 2019, preliminary
injunction hearing as to the issues that Plaintiff Bonnell holds in common with Plaintiffs Cleveland
Jackson and Hanna.” (Bonnell Appeal, ECF No. 2514, PageID 128367). In support of a single
objection to the Magistrate Judge’s Decision and Order vacating the evidentiary hearing, id., citing
ECF No. 2507, Bonnell raises two arguments, the second of which contains multiple sub-parts.
First, Bonnell urges this Court to conduct de novo review because the Magistrate Judge’s
decision to foreclose an evidentiary hearing is “the functional equivalent of a dismissal of the
action, and thus is dispositive.” (Bonnell Appeal, ECF No. 2514, PageID 128368). To the extent
that this objection is not mooted by the Recommittal Order (ECF No. 2555), it distorts the import

of the order vacating evidentiary hearing. Contrary to Bonnell’s argument, “the Magistrate Judge’s
decision to foreclose any evidentiary hearing” did not preclude Bonnell “from adducing evidence
to meet” what Bonnell characterizes as Henness’s “newly articulated standard[.]” (Bonnell
Appeal, ECF No. 2514, PageID 128368). The Magistrate Judge admitted the thorough
documentary evidence offered by Plaintiffs over the global objection of Defendants (Notation
Order, ECF No. 2568). To that end, Bonnell’s reliance on the excerpts from the Plaintiffs’ experts’
reports on the issue of whether an inmate administered 500 milligrams of midazolam will
nonetheless experience unconstitutionally severe pain (Bonnell Appeal, ECF No. 2514, PageID
128368-74) suffers from the same deficiency as Hanna’s Appeal. That is, Bonnell does not

explain, and it is not otherwise clear to the Court, what live testimony would have added to the
numerous and thorough expert reports that have been filed and will be considered.
Bonnell also argues that the Magistrate Judge erred in relying on Henness to vacate a
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hearing as to Glossip’s second prong, to wit: a showing of a readily available alternative method
of execution that would significantly reduce a substantial risk of severe pain vis-à-vis the existing
protocol (Bonnell Appeal, ECF No. 2514, PageID 128374-79). Relying on Hutto v. Davis, Bonnell
asserts that because there are multiple points where Henness is in direct conflict with the Supreme
Court’s decisions in Bucklew and Glossip, it is the Supreme Court’s word that is final. Id. at

PageID 128374, quoting Hutto, 454 U.S. 370, 375 (1982) (per curiam). Again, any arguments by
Bonnell that Henness misconstrued or misapplied Glossip or Bucklew are properly addressed to
the Sixth Circuit en banc and/or Supreme Court. To that point, the undersigned also reiterates his
rejection of any argument that Henness is not binding just because it is not yet “final.” After all,
Bonnell cannot really be arguing that had Henness reversed this Court’s denial of a preliminary
injunction, Bonnell would have acquiesced to a request by Defendants to allow executions with
the midazolam-based protocol to proceed as planned because Henness was wrongly decided or
was not final.
Bonnell accurately asserts “that the Baze-Glossip test’s second prong has two subparts: (1)

a prisoner must ‘carry his burden of showing a readily available alternative’; and (2) he must ‘show
that [the alternative] would significantly reduce a substantial risk of severe pain’ that the prisoner
alleges the current protocol poses.” (Bonnell Appeal, ECF No. 2514, PageID 128375 (emphasis
in original), quoting Bucklew, 139 S.Ct. at 1130). Further, Bonnell is correct that the evidence
regarding the firing squad alternative has never been presented to the Court in any preliminary
injunction proceeding, and thus, is “new.” Id. at PageID 128378-79. Yet, contrary to Bonnell’s
argument, id. at PageID 128377-79, Bonnell is not necessarily entitled to present evidence on that
second prong. Bonnell, Cleveland Jackson, and Hanna have argued at length that, following

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Bucklew, the first prong of Glossip (substantial risk of severe, unnecessary pain) must always be
assessed in comparison with available alternatives (i.e., the second prong of Glossip). Again, the
Magistrate Judge returns to the Sixth Circuit’s statement that:
[H]enness’s failure to satisfy Glossip’s first prong necessarily means that he cannot
demonstrate a substantial 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.

Henness, 2019 U.S. App. LEXIS 27365, at *7-8, citing Bucklew, 139 S.Ct. at 1128-30 (internal
citations omitted); Fears v. Morgan, 860 F.3d 881, 890 (6th Cir. 2017) (per curiam). As Henness
is binding authority, any argument that Henness misconstrued or misapplied Bucklew is properly
presented in the first instance to the Sixth Circuit and/or the Supreme Court. Bonnell suggests that
this particular holding in Henness is dicta (Hanna Appeal, ECF No. 2514, PageID 128378 n.1).
But the statement set forth above does not read like dicta to this Court.
Notwithstanding the foregoing, as noted throughout this decision, the Magistrate Judge did
not foreclose the presentation of evidence, just the presentation at this time of live testimony in the
absence of any substantive explanation of what live testimony would add to the documentary
evidence of record. The evidence that the Magistrate Judge will consider includes evidence about
the firing squad as a pleaded alternative via Dr. Williams’s report and the Fed.R.Civ.P. 30(b)(6)
deposition of the Utah Department of Corrections. Defendants offered very little evidence in
opposition, which further undercuts any need for live testimony.
Finally, Bonnell does not object to the Magistrate Judge’s recommendation that Bonnell’s
motion, as it pertained to his individual claims, be denied without prejudice to his refiling it no
later than December 1, 2019—no doubt because it was Bonnell who suggested that action
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(Response, ECF No. 2489, PageID 127475).

Conclusion

For the foregoing reasons, the Magistrate Judge’s Order Vacating Evidentiary Hearing
(ECF No. 2507) is modified to allow Hanna to submit evidence in support of his paradoxical
reaction claim no later than October 15, 2019. In all other respects, Hanna and Bonnell’s
objections should be overruled

October 7, 2019.

s/ Michael R. Merz
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10374038. Public record. Not legal advice.