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 Plaintiff
Gregory Lott. :
REPORT AND RECOMMENDATIONS: DEFENDANTS’ MOTION TO
DISMISS SHOULD BE GRANTED TO THE EXTENT IT
CHALLENGES CLAIMS ALREADY DISMISSED FROM THE
FOURTH AMENDED OMNIBUS COMPLAINT
This consolidated § 1983 method of execution case is before the Court on the Defendants’
Motion to Dismiss (ECF No. 2706) the Fourth Amended Individual Supplemental Complaint of
Plaintiff Gregory Lott (“ISC” ECF No. 2694). After the filing of a memorandum contra (ECF No.
2728) and a reply in support (ECF No. 2837), this Court heard oral argument on August 20, 2020
(Minute Entry, ECF No. 3170; Hrg. Tr., ECF No. 3259). For the reasons set forth below,
Defendants’ Motion should be GRANTED to the extent it challenges claims already dismissed
from the Fourth Amended Omnibus Complaint (“4AOC”) and DENIED in all other respects.
I. Background
A. Motion and Briefing
Defendants’ briefing focuses largely on Plaintiff’s claims concerning the three-drug
method of execution and his allegations that this protocol produces constitutionally-prohibited
pain, claims that Defendants argue have been rejected repeatedly and, thus, failed as matters of
law (Lott Motion, ECF No. 2706, PageID 133832-33, citing Glossip v. Gross, 576 U.S. 863 (2015);
. Henness v. DeWine, 946 F.3d 287 (6th Cir. 2019) (“Henness II”), cert. denied, ___ S.Ct. ____,
208 L.Ed.2d 146 (2020) (copy at ECF No. 3355); Campbell v. Kasich, 881 F.3d 447 (6th Cir. 2018);
Fears v. Morgan, 860 F.3d 811 (6th Cir. 2017) (en banc)). Defendants also claimed that “Lott does
not allege specifically that any of his ‘individual characteristics,’ which include such things as his
age, high cholesterol, obesity, past alcohol abuse, etc. are physical or medical conditions that in
and of themselves will cause severe pain which Defendants’ procedures would not remedy.” This
lack of plausible connection, Defendants argued, is fatal to Lott’s “as-applied” claims. Id. at
PageID 133834-35, citing Bucklew v. Precythe, 131 S.Ct. 1112, 1129 (2019); Glossip, 576 U.S.
863; Baze v. Rees, 553 U.S. 35 (2008). Moreover, Defendants argue that Lott’s Twelfth, Twenty-
Third, Twenty-Eighth, Twenty-Ninth, Thirty-Fifth through Forty-Second, and Forty-Fifth Causes
of Action are not individual claims at all, as they “on their face do not allege anything ‘unique’ or
‘individual’ to Lott.” Id. at PageID 133836, citing Lott ISC, ECF No. 2694, PageID 133334-90,
133360-63, 133388-98, 133406-61, ¶¶ 2275-90, 2368-78, 2470-97, 2532-2655, 2658-2725. Thus,
Plaintiffs are left with nothing more than the facial challenges to a protocol that has been upheld
repeatedly. Id. at PageID 133836-37 (citations omitted). Finally, they argue that Lott’s proposed
alternative methods—the second prong of Glossip—are immaterial in light of his inability to meet
the first prong. Id. at PageID 133837, citing Lott ISC, ECF No. 2694, PageID 133258-133332, ¶¶
1927-2263.
In his memorandum in opposition, Lott argues that Henness II1 cannot serve as the basis to
1 Lott refers to this case throughout his memorandum as “Henness III”, in a seeming acknowledgment that the decision
at 946 F.2d 287 was a superseding opinion of In re Ohio Execution Protocol Litig., 937 F.3d 759 (6th Cir. 2019); the
foreclose his claims as matters of law. First, he notes that Henness II was decided in overruling a
motion for preliminary injunction, and thus, is not an adjudication on the merits (Lott MIO, ECF
No. 2728, PageID 135134, quoting Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981);
Hubbard Feeds, Inc. v. Animal Feed Supp., Inc., 182 F.3d 598, 603 (8th Cir. 1999); Thomas v.
Blocker, No. 4:18-cv-812, 2019 U.S. Dist. LEXIS 45662, *3 n.14 (M.D. Pa. Mar. 20, 2019).)
Second, Lott claims that contrary to Defendants’ argument, no case, has ever foreclose challenges
to the protocol as matters of law, and Henness II is no different. Id. at PageID 135135-36, citing
Glossip, 576 U.S. 863; Campbell, 881 F.3d 447; Fears, 860 F.3d at 886. Rather, the relevant
question was the “level of certainty” that unconstitutional pain and suffering would occur—not the
degree of pain—and these cases simply held that the movants had failed to present sufficient
evidence that the three-drug protocol was sure or likely to cause unconstitutional pain and
8suffering. Id. at PageID 135137-39, quoting Campbell, 881 F.3d at 449, 450-51; citing Glossip,
576 U.S. at 881; Fears, 860 F.3d at 890, 892.
Lott claims that the Defendants took the Henness II decision out of context, extrapolating
from Warren K. Henness’s factual failure to meet prong of Glossip a legal impossibility that a
plaintiff could ever do so. This extrapolation was improper, as Henness II stated that it reached
“the same conclusion” as Fears, and in Fears, the Sixth Circuit rejected Defendants’ entreaties to
bar categorically any challenge to the protocol. (Lott MIO, ECF No. 2728, PageID 135140, citing
Henness II, 946 F.3d at 290-91; Campbell, 881 F.3d at 449–51; Fears, 860 F.3d at 886, 890, 892).
Similarly, Lott claims that the Sixth Circuit’s rejection of Henness’s claim that midazolam-induced
pulmonary edema constituted unconstitutional pain was “speculation on the court’s part,
illustrating that an inmate like Lott must present more robust evidence to more clearly demonstrate
Court began referring to this earlier decision as Henness II shortly after it was filed. However, because that decision
has been superseded, the case at 946 F.3d 287 is properly termed Henness II.
the degree of risk and degree of pain and suffering inflicted by acute, non-cardiogenic pulmonary
edema.” Id. at PageID 135143. Lott argues that if Henness II did hold that pain from pulmonary
edema could never be unconstitutional, then that holding was contrary to Supreme Court and Sixth
Circuit precedent. Id. at n.2, citing Baze, 553 U.S. 35; Campbell, 881 F.3d 447; Fears, 860 F.3d
881.
Third, Lott claims that Defendants’ argument regarding his individual characteristics not
themselves causing severe pain is immaterial (Lott MIO, ECF No. 2728, PageID 135155-56, citing
Lott Motion, ECF No. 2706, PageID 133835, 133836). The relevant issue is whether those
individual characteristics are likely to cause him severe pain when the protocol is administered,
and Lott argues that he has alleged sufficient nexus between his characteristic and the likelihood
that they will cause severe pain. Id. at PageID 135156-58.
As to Defendants’ argument that “many of Lott’s claims asserted in his individual
supplemental complaint ‘do not allege anything “unique” or “individual” to Lott[,]’” (Lott MIO,
ECF No. 2728, PageID 135157, quoting Lott Motion, ECF No. 2706, PageID 133836), as
immaterial and “simply incorrect. Indeed, that position fundamentally misunderstands the entire
point of the ISC’s [sic] in this case, which was to allow claims that required individual
considerations to be pleaded in addition to those claims alleged in the omnibus complaint.” Id. at
PageID 135157-58.2 Finally, Lott argues that the pleaded alternatives were not intended to be
causes of action themselves, but as a necessary component of section 1983 claims in light of
Glossip, and to enable the Court to conduct the required comparative analysis that, he claims, the
Sixth Circuit failed to conduct in Henness II. Id. at PageID 135158-59, citing Bucklew, 139 S.Ct.
2 Defendants do not address this issue in their reply. For the reasons set forth below, the Court agrees with Plaintiffs
that the Twenty-Third, Twenty-Eighth, Twenty-Ninth, Thirty-Fifth through Forty-Second, and Forty-Fifth Causes of
Action were sufficiently pleaded to avoid dismissal.
at 1129-33; Henness II, 946 F.3d at 291; Lott Motion, ECF No. 2706, PageID 133837.
Lott claims that, for four reasons, his ISC is plausible under that comparative analysis, as
his proposed alternatives, accepted as true, are feasible, readily implemented, and substantially
reduce the risk of severe pain (Lott MIO, ECF No. 2728, PageID 135159, citing Bucklew, 139
S.Ct. at 1136 (Kavanaugh, J., concurring); Arthur v. Dunn, 137 S.Ct. 725, 733-734 (2017)
(Sotomayor, J., dissenting from denial of certiorari); Lott Motion for Prelim. Inj., ECF No. 2695,
ECF No. 2696, PageID 133643–92; 133737–79). First, “absent a sufficiently protective initiatory
drug” to protect the inmate, the paralytic and potassium chloride will produce severe pain. Id. at
PageID 135126-27; Baze, 553 U.S. at 53; Fears, 860 F.3d at 885-86; Campbell, 881 F.3d at 450-
51. Second, midazolam not only causes severe pain and terror akin to suffocation and
waterboarding, it also does not and cannot attenuate the pain of the second and third drugs. Id. at
PageID 135160. Third, Lott’s alternatives are available, feasible, and readily implemented.
Fourth, Defendants have offered no legitimate reason not to use the alternative methods. Id. at
PageID 135161, citing Baze, 553 U.S. at 50. Lott argues that because his claims are legally well-
founded, and Defendants do not argue that his factual allegations are insufficient, Defendants’
Motion should be denied. Id. at PageID 135162, quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
In their Reply, Defendants claim that Lott’s argument that Henness II, Campbell, and Fears
were “just preliminary injunctions” is disingenuous, given that Henness II held categorically that
the pain associated with midazolam-induced pulmonary edema did not violate the Eighth
Amendment, and that Fears was an en banc decision vacating a panel decision, an action
undertaken “‘only in the most compelling circumstances,’ and simple disagreement with the
panel’s decision normally doesn’t fit the bill.” (Lott Reply, ECF No. 2837, PageID 152270-71,
quoting Mitts v. Bagley, 626 F.3d 366, 370 (6th Cir. 2010) (Kethledge, J., concurring); citing Air
Line Pilots Ass’n Int’l v. E. Air Lines, Inc., 863 F.2d 891, 925, (D.C. Cir. 1988) (Ginsburg, J.,
concurring in the denial of rehearing en banc). Moreover, the Sixth Circuit’s categorical bar to
Henness’s claim in Henness II was “consistent with the approach taken by Chief Justice [John G.]
Roberts[, Jr.] in Baze[,]” id. at PageID 152271, in which the Court rejected challenges to
Kentucky’s three-drug protocol and Chief Justice Roberts, in his plurality opinion, stated that “[a]
State with a lethal injection protocol substantially similar to the protocol we uphold today would
not create a risk that meets this standard.” Id. at PageID 152271-72, quoting Baze, 553 U.S. at 61;
citing Cooey (Biros) v. Strickland, 589 F.3d 210, 220 (6th Cir. 2009). As Ohio’s three-drug
protocol is substantially similar to that of Kentucky, “the court need not and should not entertain
a succession of like challenges based on the possibility of new or better evidence.” Id. at PageID
152272.
Lott’s as-applied claims fare no better, Defendants argue, because they are nothing more
than “legal conclusions piled onto the heap of legal conclusions set out in his complaint.” (Lott
Reply, ECF No. 2837, PageID 152273.) Merely pleading the elements of a claim is insufficient
in light of Iqbal. Id., quoting 556 U.S. 678-79. As Lott cannot meet the first prong of Glossip, his
proposed alternatives—the second prong of Glossip—are immaterial, and the ISC should be
dismissed, Id. at PageID 152273-74.
B. Oral Argument
At oral argument, Defendants argued that decisions rendered over the sixteen years of
litigation over Ohio’s lethal injection protocol3, when taken together, have foreclosed as
3 Both in the instant case and its predecessor, Cooey v. Kasich, 2:04-cv-1156.
implausible any Eighth Amendment challenge to the protocol (Hrg. Tr., ECF No. 3259, PageID
156886-87). They claimed that twenty-two of the causes of action in Plaintiffs’ ISCs4 were Eighth
Amendment claims, and thus, were foreclosed by Henness II; that the gravamen of those claims
was presented by an individual plaintiff in a motion for preliminary injunction, rather than in a
merits trial, is immaterial. Id. at PageID 156903-05. Defendants noted that King is an unpublished,
out-of-state decision and that Plaintiffs have had eleven years to research and develop claims with
respect to a three-drug protocol. Yet, unlike the particularized allegation set forth by the Plaintiff
in Bucklew, Plaintiffs merely offer “a laundry list of conclusory allegations[.]” Id. at PageID
156905-06, citing 139 S.Ct. 1112. They claimed that if this Court concluded that the myriad health
concerns presented by individual Plaintiffs, including Lott, added up to plausible claims for relief,
then “not only will you have to go past 12(b)(6) but you also ultimately end up with 79 trials[.] . .
. The litigation would . . . never end.” Id. at PageID 156907. Defendants argued, both as a matter
of common sense and to avoid the absurd outcome described above, that if a claim was dismissed
in a previous iteration of this litigation, said claim should be dismissed in this iteration. Id. at
PageID 156934-35. Defendants stated that seventeen claims in the ISCs met that classification,
but did not identify them at oral argument or anywhere else. Id. at PageID 156935. Defendants
further stated that six claims raised in the ISC were subsequently withdrawn, but again, did not
identify those claims at oral argument or anywhere else. Id.
Plaintiffs argued that the only issue properly presented in Defendants’ Motion and Reply
was whether Henness II forecloses any Eighth Amendment “Baze/Glossip” challenge to the
protocol. They claimed that only six of the forty-seven causes of action—Nos. 20 through 23,
4 The gravamen of the claims in the majority of Plaintiffs’ ISCs (ECF Nos. 2732, 2734-58, 2760-64, 2766-71, 2773-
83, 2786-93, 2796-2808, 2811-12, 2815-17, 2821-30) are largely identical. Defendants treated the ISCs as largely
identical during oral argument, and Allen Bohnert and Adam Rusnak, attorneys of record for several of the Plaintiffs,
argued on behalf of all Plaintiffs during oral argument (Hrg. Tr., ECF No. 3259, PageID 156938-39).
“potentially” 27, and 33—fit within that category, and noted that King, the case most directly on
point, had already rejected that argument at the Rule 12 stage (Hrg. Tr., ECF No. 3259, PageID
156909-10, 156928). Arguing that Henness II’s adjudication of Eighth Amendment claims
forecloses all claims, without more, is not enough to satisfy Fed.R.Civ.P. 7, “which requires that
a motion be particular and state the particular bases for a motion.” Id. at PageID 156910-11,
156915-16. Plaintiffs claimed that arguments made by Defendants as to non-Baze/Glossip claims
have been forfeited for the purposes of the instant Motions; raising them at oral argument is not
enough for them to be fairly as grounds for dismissal. Id. at PageID 156911-13.
This limited scope was Defendants’ choice, Plaintiffs argued:
[I]f the State wanted to seek summary judgment, then certainly they
could have done that. They chose not to. They chose to seek
dismissal under 12(b)(6) and so without additional evidence being
brought into the picture, Your Honor, or even the chance to bring
additional evidence into the picture it would be wholly inappropriate
in this situation for Your Honor to go ahead and just sort of
unilaterally or sua sponte convert these into summary judgment
motions without giving the Plaintiffs any opportunity to address
that.
(Hrg. Tr., ECF No. 3259, PageID 156919-20). Plaintiffs argued that while the Sixth Circuit found
that the pain from pulmonary edema was not itself constitutionally prohibited, that “is not the same
as saying that the pain and suffering inflicted by pulmonary edema from the Midazolam (sic) does
not matter.” Id. at PageID 156922, 156923, citing Campbell, 881 F.3d 447; Fears, 860 F.3d 881.
They also claimed that there was no reasonable argument that the pain from the second and third
drugs was “constitutionally insufficient,” as it has been the law since Baze that the pain from a
paralytic and potassium chloride is “constitutionally problematic. Id at PageID 156925. Further,
Plaintiffs argued, the King court’s interpretation of Henness II—that Henness’s failure to present
sufficient evidence to meet prong one of Glossip was not the same as Henness’ being legally
unable to present sufficient facts to meet that burden—was correct. Id. at PageID 156926-27. The
facts alleged in the ISCs, far from being a “laundry list,” established nexus between their individual
characteristics (e.g., paradoxical reaction, hyperalgesia) and the unconstitutional pain and
suffering resulting from the protocol drugs. Id. at PageID 156928-29.
Additionally, Lott’s counsel argued that in their Motion, Defendants appeared to argue that
Henness II used Bucklew to draw a bright line: as a matter of law, any method of execution that
was acceptable when the Eighth Amendment was ratified in 1791 cannot constitute constitutional
cruel and unusual punishment, and thus, cannot be the subject of a constitutional challenge (Hrg.
Tr., ECF No. 3259, PageID 156940-41, citing Lott Motion, ECF No. 2910, PageID 153086-87;
Bucklew, 139 S.Ct. at 1124; Henness II, 946 F.3d at 290). This massive constriction of what is
considered cruel and unusual “cannot be the correct rule of law” and is “without a basis in logic.”
Id. at PageID 156941, 156943. If it were, then drawing-and-quartering, poisoning with carbon
monoxide, and suffocating an inmate with a plastic bag would all be acceptable methods of
execution, since neither those methods nor their analogues were impermissible in 1791. Id. at
PageID 156941-42. Lott conceded that the Henness II panel may well have intended to draw a
bright line at 1791 for Eighth Amendment challenges. However, he stated that such a decision
would contravene Baze, Glossip, and Bucklew. Id. at PageID 156943-45. Consequently, Lott
argued, this Court need not follow Henness II, despite its being a published decision. Id. at PageID
156944-45.
In response, Defendants again took no position on whether Henness II derived a new
bright-line rule from Bucklew, or whether any such rule complied with or contravened Baze,
Glossip, or Bucklew (Hrg. Tr., ECF No. 3259, Page 156954-55). However, they denied relying
solely on Henness II, instead arguing that the decision was the latest in a long line of cases going
back to Cooey (Biros) v. Strickland. Id. at PageID 156955, citing 589 F.3d 210 (6th Cir. 2009).
Moreover, Defendants claimed that “[t]his Court has agreed that the holding that we cited in
Henness essentially did amount to a holding that as a matter of law the complained-of discomfort
caused by Midazolam was not constitutionally prohibited. The Court concluded that from the claim
language of Henness and the Court concluded correctly.” Id. at PageID 156954.
C. King v. Parker
After the briefing was completed, the first district court decision to opine on a three-drug
protocol post-Henness II was handed down, in which the State of Tennessee Defendants moved
for judgment on the pleadings under Fed.R.Civ.P. 12(c). King v. Parker, No. 3:18-cv-1234, ___
F. Supp. 3d ____, 2020 U.S. Dist. LEXIS 148269 at *2, 4-5, 6 (M.D. Tenn. Apr. 29, 2020). The
court in King noted that no court had interpreted Glossip as foreclosing as a matter of law
challenges to lethal injection protocols—and indeed, that argument had been rejected by multiple
appellate courts. King, 2020 U.S. Dist. LEXIS 148269 at *6-8, quoting Grayson v. Warden,
Comm’r Ala. Dep’t of Corr., 869 F.3d 1204, 1216 (11th Cir. 2017); Fears, 860 F.3d at 886, 890;
citing Campbell v. Kasich, 881 F.3d 447, 449, 451 (6th Cir. 2018); Grayson, 869 F.3d at 1215-17.
Henness II did nothing to change that analysis, King concluded. 2020 U.S. Dist. LEXIS
148269 at *9-10. The King court noted that “the Sixth Circuit could have avoided the issue of
Glossip's first prong entirely and affirmed simply on Henness's failure to meet his burden on the
second prong. But it nevertheless opined that the district court had erred in two ways when it found
Henness had satisfied the first prong.” Id. at *9, citing Henness II, 946 F.3d at 289-91. First,
Henness II found that the undersigned erred in not concluding that the pain resulting from
pulmonary edema caused by the 500 mg dose of midazolam was “insufficient as a matter of law
to support a claim under Glossip. Thus, it would be legally impossible for anyone alleging only
sensations of drowning or suffocating to establish an Eighth Amendment violation in connection
with a method of execution.” Id. at *9-10, citing Henness II, 946 F.3d at 290. Second:
Without evidence showing that a person deeply sedated by a 500
milligram dose of midazolam is “sure or very likely” to experience
an unconstitutionally high level of pain [from the second and third
drugs], Henness has not met his burden on this prong, and the district
court clearly erred in concluding otherwise.
Id. at *9 (emphasis added and brackets in original), quoting Henness II, 946 F.3d at 290. But this
holding, King concluded, “is not the same as holding that it would be legally impossible for him,
or any other plaintiff, to do so. That possibility, therefore, remains open to Plaintiff.” Id. at *10,
citing Henness II, 946 F.3d at 290-91.
Rejecting the Defendants’ argument that King “is bound by the outcome in Henness [II]
because he alleged in his amended complaint that his evidence would be materially similar to the
evidence offered in that case[,]” the trial court noted that, while the Sixth Circuit has expressed
fatigue over repeatedly addressing the issue of whether and to what extent midazolam can shield
inmates from the pain of the second and third drugs, the question “has never been answered as a
matter of law.” King, 2020 U.S. Dist. LEXIS 148269 at *12, citing Campbell, 881 F.3d at 452.
The Tennessee court further concluded that King’s allegations, taken as true, could plausibly
satisfy the first prong of Glossip. Id. at *10-11. Specifically, King’s allegations that midazolam’s
lack of analgesic properties meant that he would not be shielded from the pain and suffering from
the second and third drugs and the consequent cardiac arrest—which are themselves so severe as
to be “constitutionally unacceptable”—were sufficient to allow his claims to proceed to discovery.
“Whether his evidence will prove the truth of that allegation remains to be seen, but his allegations
are sufficient to entitle him to try.” Id. at *12.
II. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) allows a party to move for dismissal of a
complaint on the basis that it “fail[s] to state a claim upon which relief can be granted.” The
moving party “has the burden of showing that the opposing party has failed to adequately state a
claim for relief.” DirecTV, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007), citing Carver v.
Bunch, 946 F.2d 451, 454-55 (6th Cir. 1991). The purpose of a Rule 12(b)(6) motion to dismiss
“is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief
even if everything alleged in the complaint is true.” Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.
1993). In ruling on a Rule 12(b)(6) motion, the Court must “construe the complaint in the light
most favorable to the plaintiff, accept its [well-pleaded] allegations as true, and draw all reasonable
inferences in favor of the plaintiff.” Handy-Clay v. City of Memphis, 695 F.3d 531, 538 (6th Cir.
2012) (quoting Treesh, 487 F.3d at 476).
Nevertheless, to survive a Rule 12(b)(6) motion to dismiss, the complaint must contain
“enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007). Unless the facts alleged show that the plaintiff's claim crosses “the line
from conceivable to plausible, [the] complaint must be dismissed.” Id. Although this standard
does not require “detailed factual allegations,” it does require more than “labels and conclusions”
or “a formulaic recitation of the elements of a cause of action.” Id. at 555. Legal conclusions
“must be supported by well-pleaded factual allegations ... [that] plausibly give rise to an
entitlement of relief.” Id. at 679. “Although for the purposes of this motion to dismiss we must
take all the factual allegations in the complaint as true, we are not bound to accept as true a legal
conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).
III. Analysis
A. Claims Duplicative of those Raised in the 4AOC
This consolidated action under 42 U.S.C. § 1983 and its predecessors in this Court have
been pending since shortly after the Supreme Court authorized bringing method-of-execution
claims in 42 U.S.C. § 1983 actions in Nelson v. Campbell, 541 U.S. 637 (2004). On September
22, 2017, the Plaintiffs filed the 4AOC, pleading forty-seven causes of action (ECF No. 1252).
Defendants filed a Motion to Dismiss the 4AOC in toto on November 20, 2017 (ECF No. 1379),
and during the pendency of that motion, its scope was narrowed such that only the Second through
Tenth, Fourteenth, Thirtieth, and Thirty-First Causes of Action were under consideration (Report
and Recommendations, ECF No. 1429, PageID 55221-22, 55265-70 (explaining that various
causes of action were not subject to the Motion or were to be repleaded elsewhere)). Then-Chief
Judge Sargus subsequently adopted the undersigned’s Reports and Recommendations5, granting
in part and denying in part Defendants’ Motion (ECF No. 2104, reported at In re Ohio Execution
Protocol Litig., 2018 U.S. Dist. LEXIS 209769 (S.D. Ohio Dec. 12, 2018)). In doing so, he
dismissed the following claims:
Second Cause of Action: Fourteenth Amendment Due Process violations;
Fourth Cause of Action: Fourteenth Amendment Equal Protection violations
through burdening of fundamental rights—Sub-claims:
o A.2: Deviations from Ohio’s execution statute;
o A.3: Deviations from Ohio Constitution;
o A.4: Failure to follow federal and Ohio laws related to imported drugs,
unapproved drugs, misbranded drugs, adulterated drugs, controlled
substances, and compounded drugs, including compounding sterile
injectable controlled substances to be used as execution drugs;
o A.5: Deviations from Ohio’s definition-of-death law;
5 Those Reports and Recommendations did not pertain to the claims of Plaintiffs Alva Campbell, Jr., Raymond
Tibbets, or Robert Van Hook, for whom there was unanimous consent to plenary Magistrate Judge jurisdiction (Report
and Recommendations, ECF No. 1429, PageID 55213 (citations omitted)). During the pendency of Defendants’
Motion, Campbell died in prison, Van Hook was executed, and then-Governor John R. Kasich, Jr., commuted
Tibbets’s sentence to life without parole.
o A.6: Deviations from Ohio and federal law prohibiting non-consensual
human experimentation;
o A.7: Use of an Execution Protocol and policies by which Defendants
deny necessary medical and resuscitative care and permit a lingering
death;
o A.8: Use of midazolam and the unavoidable variation inherent in
midazolam’s efficacy on individual people;
o A.9: Use of compounded execution drugs and the unavoidable variation
inherent in compounded drugs;
Fourth Cause of Action—Fourteenth Amendment Equal Protection violations
through “Class of One” disparate treatment
o B.2: Unequal application of Ohio’s execution statute to Plaintiff as a class
of one;
o B.3: Unequal application to Plaintiff, as a class of one, of federal and
Ohio state laws related to imported drugs, unapproved drugs, misbranded
drugs, adulterated drugs, controlled substances, or compounded drugs,
including compounding sterile injectable controlled substances to be used
as execution drugs;
o B.4: Unequal application of Ohio’s definition-of-death law to Plaintiff as
a class of one;
o B.5: Unequal application of federal and Ohio state laws prohibiting non-
consenting human experimentation to Plaintiff as a class of one;
o B.6: Disparate denial of necessary medical care and permitting a lingering
death;
o B.7: Use of midazolam and the unavoidable variation inherent in
midazolam’s efficacy on individuals, which treats Plaintiff unequally as a
class of one;
Fifth Cause of Action—Violations of Fundamental Rights Arising Under The
Principles Of Liberty and/or Natural Law Which Are Protected By The Ninth
Amendment;
Sixth Cause of Action—First Amendment Free Speech Clause Violations;
Seventh Cause of Action—Fourteenth Amendment Due Process Violation for
Failure to Identify Drug Source Defendants;
Eighth Cause of Action—Fourteenth Amendment Due Process Clause Violations
For Experimenting On Non-Consenting Prisoners ;
Ninth Cause of Action—Fourteenth Amendment Privileges or Immunities Clause
Violations For Experimenting on Non-Consenting Prisoners;
Tenth Cause of Action—Ex Post Facto Violation;
Fourteenth Cause of Action—Fourteenth Amendment Due Process Violation
through Arbitrary and Capricious Government Action that Shocks the
Conscience;
Thirtieth Cause of Action—Fourteenth Amendment Due Process Violation for
Failure to Comply with Federal Investigational New Drug Application
Regulations with Respect to the Method and Choice of Drug to be Used in
Plaintiff’s Execution; and
Thirty-First Cause of Action—Equal Protection Violations Related To
Defendants’ Failures To Comply With The [Investigational New Drug]
Application Laws.
2018 U.S. Dist. LEXIS 209769 at *46-49, 52-53; 4AOC, ECF No. 1252, PageID 45412-14, 45416-
17.
Despite this dismissal, the ISC contains claims which are covered by the dismissal order.
Lott’s Twelfth Cause of Action —Eighth Amendment violation by Deliberately Indifferent and/or
Reckless Denial of Resuscitative Health Care after the Execution is to be Completed (Lott ISC,
ECF No. 2694, PageID 133334-39)—is virtually identical to sub-claim A.7 in the Fourth Cause of
Action in the 4AOC. Without further explanation, Lott’s ISC also incorporates by reference from
the 4AOC the Second, Fourth through Tenth, Fourteenth, Thirtieth, and Thirty-First Causes of
Action (among others). Id. at PageID 133333-34, 133342, 133398.
When Judge Sargus entered the dismissal, the Magistrate Judge offered the parties an
opportunity to seek circuit review and thus obtain some finality on these claims:
Although the Order determines with finality which claims made in
the Fourth Amended Omnibus Complaint can proceed, it is not
appealable without entry of judgment with an express determination
by the Court that there is no just reason for delay. Fed. R. Civ. P.
54(b). Although this consolidated case and its predecessors have
been pending for fourteen years, there has never been a trial and no
trial date is presently set. Thus there is no likelihood of a final
judgment on all claims in the near future.
Given that status of the case, the Magistrate Judge urges the parties
to consider moving for a partial judgment under Fed. R. Civ. P. 54
so that a decision of the Sixth Circuit on the many issues raised in
Defendants’ Motion to Dismiss can be obtained.
(Scheduling Order, ECF No. 2109, PageID 103627-28). None of the parties accepted this
invitation, so there has as yet been no circuit review of this Court’s analysis of the listed claims in
the 4AOC. Lott (and the other Plaintiffs) therefore cannot be faulted for repeating these claims in
his ISC to preserve them for eventual appeal.
Nevertheless, the viability of the listed claims under Fed.R.Civ.P. 12(b)(6), applying what
the Magistrate Judge continues to believe is the correct standard for Rule 12(b)(6) motions, has
already been decided by this Court. Failure of the Defendants to specify these claims in the Motion
to Dismiss does not deprive this Court of authority to stand on its prior decision and imposes no
unfairness on Lott, who had adequate opportunity to litigate the viability of these claims under
Fed.R.Civ.P. 12(b)(6) in the 2017-18 proceedings. The Magistrate Judge elects to decide the
Motion to Dismiss as to those claims on the basis of the law of the case.
Under the law of the case doctrine, findings made at one point in litigation become the law
of the case for subsequent stages of that same litigation. United States v. Moored, 38 F.3d 1419,
1421 (6th Cir. 1994), citing United States v. Bell, 988 F.2d 247, 250 (1st Cir. 1993). “As most
commonly defined, the doctrine posits that when a court decides upon a rule of law, that decision
should continue to govern the same issues in subsequent stages in the same case.” Arizona v.
California, 460 U.S. 605, 618 (1983), citing 1B J. MOORE & T. CURRIER, MOORE’S FEDERAL
PRACTICE ¶0.404 (2nd ed. 1980); Patterson v. Haskins, 470 F.3d 645, 660-61 (6th Cir. 2006);
United States v. City of Detroit, 401 F.3d 448, 452 (6th Cir. 2005), citing Moored, 38 F.3d at 1421.
“If it is important for courts to treat like matters alike in different cases, it is indispensable that
they ‘treat the same litigants in the same case the same way throughout the same dispute.’” United
States v. Charles, 843 F.3d 1142, 1145 (6th Cir. 2016) (Sutton, J.), quoting BRYAN A. GARNER,
ET AL. THE LAW OF JUDICIAL PRECEDENT 441 (2016).
In deciding the motion for preliminary injunction of Warren Henness, the Court analyzed
how law of the case doctrine should apply here. It noted that the Sixth Circuit had approved a
slightly different standard for law of the case in consolidated cases and stated the approach it would
follow:
Based on these discussions in the circuit court, this Court concludes
it is not bound by the law of the case doctrine to decide issues in
Warren Henness’s § 1983 case as it decided the same issues in the
Phillips, Otte, Tibbetts, and Campbell cases. On the other hand,
applying general principles of precedent, Henness’s § 1983 case is
very similar to those prior cases, about as similar as any five such
cases could be: all are being decided by the same Court, all are
parties to the same or very similar omnibus complaints, all attack
the same method of execution and seek to enjoin the same state
officials, all have been litigated by the same institutional litigators
within two years of one another, subject to review by the same
appellate court. Very few distinguishing facts among the Plaintiffs
are relevant to their § 1983 cases.
Although the Court is not bound by law of the case doctrine to
decide issues the same way, it would destroy the economy of
consolidation as well as raise serious equal justice considerations to
decide the issues differently. 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.
In re Ohio Execution Protocol Litig. (Henness) (“Henness I”), 2019 U.S. Dist. LEXIS 8200, at *
33-34 (S.D. Ohio, Jan. 14, 2019) (Merz, Mag. J) (emphasis in original), citing GMAC Mortg., LLC
v. McKeever, 651 F. App’x 332, 338-39 (6th Cir. 2016), rev’d on other grounds at In re: Ohio
Execution Protocol Litig., 937 F.3d 759, substituted decision at Henness II, 946 F.3d 287, cert.
denied, Case No. 20-3243 ___ S.Ct. ____, 2020 WL 5880254 (Mem.) (Aug. 3, 2020). This portion
of the Henness I decision received no criticism from the United States Court of Appeals for the
Sixth Circuit in Henness II, and will continue to be followed here. Although application of the
law of the case doctrine in prisoner cases has been much disputed, the Sixth Circuit has just now
applied it to deny a Certificate of Appealability (“COA”) on a claim in a capital case because it
had previously denied a COA on the same claim. Cunningham v. Shoop, Nos. 11-3005, 20-3429,
2020 U.S. App. LEXIS 26947, at *4 (6th Cir. Aug. 24, 2020), citing Dillingham v. Jenkins, No.
17-3813, 2017 WL 5438882, at *1 (6th Cir. Nov. 8, 2017).
The relationship between claims made by Lott in the 4AOC which have been dismissed
under Fed.R.Civ.P. 12(b)(6) and parallel claims made in the ISC is even closer than the parallels
between Warren Henness’s claims and those made by former Plaintiffs Ron Phillips, Gary Otte,
Tibbetts, and Campbell. On the basis of the prior decision, it is respectfully recommended that
Lott’s Second, Fourth (with the exception of Sub-Claims A.1, A.10, B.1, and B.8) through Tenth,
Twelfth, Fourteenth, Thirtieth and Thirty-First Causes of Action be dismissed.
B. Novel Claims in the ISC
The Magistrate Judge must emphasize that this consolidated litigation is unique in his
experience. Despite being pending for sixteen years, none of the constituent cases has ever reached
trial or a summary judgment adjudication. During his twelve-year management of the case,
District Judge Gregory L. Frost several times expressed frustration at the pace and sequencing of
the litigation, but apparently never had second thoughts about the consolidation. The consolidation
has indeed brought many benefits. It has kept the capital method-of-execution matters together on
one docket, which promotes continuity and consistency of judicial attention. It has prevented the
last-minute filings in capital cases so common across the country which have exasperated both the
circuit and Supreme Courts. It has produced a common schedule for these cases which enhances
predictability and deliberate consideration of each case.
Although there has never been a trial, the Court has expended many days in hearing
evidence, but always pertinent to a preliminary injunction motion. In hearing that evidence, this
Court has compiled one of the most extensive factual records in the country on the effects of very
large doses of midazolam on the human body. But in making findings based on that evidence and
other evidence, this Court has always emphasized that they are not conclusive findings of fact.
The findings of fact and conclusions of law required by
Fed.R.Civ.P.52 are embodied in this Decision and Order. They are
not binding at trial on the merits or at future preliminary injunction
proceedings in this consolidated case. United States v. Edward Rose
& Sons, 384 F.3d 258, 261 (6th Cir. 2014), citing Univ. of Texas v.
Camenisch, 451 U.S. 390, 395 (1981).
Henness II, 2019 U.S. Dist. LEXIS 8200 at *19. This language duplicates what Judge Frost did
in his preliminary injunction decisions in the consolidated cases, see. e.g., Cooey v. Strickland, No.
2:04-cv-1156, 2009 U.S. Dist. LEXIS 122025, at *7 n.1 (S.D. Ohio Dec. 7, 2009) (Frost, J.), and
what the undersigned has done with each such motion since he assumed management of the case
in October 2016. See, e.g., In re Ohio Execution Protocol Litig. (Phillips, Tibbets, and Otte), 235
F. Supp. 3d 892, 894 (S.D. Ohio 2017) (Merz, Mag. J.), vacated and remanded on other grounds
in Fears, 860 F.3d 881.6 Neither party has challenged this language in this Court or on appeal, nor
has any party asked the Court to advance the trial on the merits under Fed.R.Civ.P. 65(a)(2). Nor
6 As in Henness I, Plaintiffs Gary Otte, Ron Phillips, and Raymond Tibbets and Defendants unanimously consented
to plenary Magistrate Judge jurisdiction (Order of Reference, ECF No. 734).
indeed has any party ever moved for summary judgment.
In federal litigation, conclusive findings of fact are made only in the trial court at trial or
on summary judgment. Appellate affirmance of findings of fact on preliminary injunction does
not make those findings final7. Defendants essentially seek summary judgment on the basis of
appellate review in Henness II. That is not a permissible way to proceed, even in this unusual
litigation.
As King discussed, Henness II made two key holdings with respect to the first prong in
Glossip. Neither holding helps Defendants. True, the Henness II panel held unambiguously that
the pain from midazolam-induced pulmonary edema was not constitutionally prohibited, 946 F.3d
at 290, and had Defendants moved to dismiss the ISC to the extent Lott was alleging that the pain
from pulmonary edema constituted an Eighth Amendment violation, such a motion might have
been viable. But Defendants did not do that, and their argument that all claims are foreclosed,
even at the motion to dismiss stage, is too broad a reading of Henness II.
As to the other holding, that Henness had failed to demonstrate that the three-drug
combination was likely to cause him substantial pain and suffering, 946 F.3d at 290-91, the opinion
in King, while certainly not binding, is instructive. That court correctly notes that Henness II did
not hold that there was no possibility that the pain from the three-drug protocol could form the
basis of an Eighth Amendment violation; Henness II simply held that no plaintiff had yet made
such a showing. King, 2020 U.S. Dist. LEXIS 148269 at *7-8, 10, citing Henness II, 948 F.3d at
290-91; Campbell, 881 F.3d at 449, 451; Fears, 860 F.3d at 886, 890, 892.
The issue, then, is whether Lott’s allegations add up to potentially plausible claims for
relief. In addition to his general allegations as to the pain resulting from the three-drug protocol
7 Of course in this consolidated case and in many other capital cases across the country, failure on preliminary
injunction usually results in an execution, rendering the case moot as to that particular inmate.
(Lott ISC, ECF No. 2694, PageID 133250-53, ¶¶ 1893-1908)—pain that has been accepted as true
repeatedly, see, e.g., Baze, 553 U.S. at 49-50 (paralytic and potassium chloride); Henness II, 946
F.3d at 290-91 (midazolam)—Lott claims that his “peripheral vascular disease, chronic venous
insufficiency, critical limb ischema, bilateral lower extremity edema and hypertension,” obesity,
age, sex, history of alcohol abuse and impulsive actions, and symptoms of obstructive sleep apnea
(Lott ISC, ECF No. 2694, PageID 133254-55, ¶¶ 1909-15) will likely cause him to have a
“paradoxical reaction” to the drugs—i.e., the overdose of midazolam, far from sedating or
anesthetizing him, will send him into a state of hyperalgesia, making the pain from the second and
third drugs worse than if he received no midazolam at all. Id. at PageID 133255-56, ¶¶ 1917-18.
Accepting these allegations as true, as the Court must at this stage, the undersigned
concludes that they support plausible claims that Lott is sure or likely to suffer severe and needless
pain and suffering, in violation of the Eighth Amendment. Moreover, Lott has alleged a sufficient
nexus between those individual characteristics and how the execution drugs will allegedly
exacerbate and cause him severe pain, such that any as-applied challenge is similarly plausible.
“Whether his evidence will prove the truth of that allegation remains to be seen, but his allegations
are sufficient to entitle him to try.” King, 2020 U.S. Dist. LEXIS 148269 at *12.
In their reply memorandum and at oral argument, Defendants expressly declined to opine
whether Henness II articulated a new rule as to what pain resulting from an execution constitutes
“cruel and unusual punishment” for Eighth Amendment purposes. As the movants do not argue
that this Court should draw such a conclusion, and Henness II does not compel such a conclusion
from the undersigned’s reading, the Court will not reach Lott’s argument that Henness II may have
articulated a new rule and that such a rule contravenes a wide scope of Supreme Court precedent
(Lott MIO, ECF No. 2728, PageID 135143 n.8). Defendants are correct that Henness II
unambiguously held that the evidence presented by Henness of nearly certain pain and suffering
from midazolam-induced pulmonary edema was not constitutionally prohibited pain. In light of
Henness II, the undersigned is dubious that any Eighth Amendment challenge to the pain of
midazolam itself would succeed. Yet, as discussed above, Lott alleged significantly more than
that, such that the Henness II does not foreclose his claims as matters of law at the motion to
dismiss stage.
At oral argument, Defendants expressly declined to opine whether Henness II articulated a
new rule as to what pain resulting from an execution constitutes “cruel and unusual punishment”
for Eighth Amendment purposes. As the movants do not argue that this Court should draw such a
conclusion, and Henness II does not compel such a conclusion from the undersigned’s reading, the
Court will not reach Lott’s argument that Henness II may have articulated a new rule and that such
a rule contravenes a wide scope of Supreme Court precedent. Defendants are correct that Henness
II unambiguously held that the evidence presented by Henness of nearly certain pain and suffering
from midazolam-induced pulmonary edema was not constitutionally prohibited pain. In light of
Henness II, the undersigned is dubious that any Eighth Amendment challenge to the pain of
midazolam itself would succeed. Yet, as discussed above, Lott alleged significantly more than
that, such that the Henness II does not foreclose his claims as matters of law at the motion to
dismiss stage.
After oral argument, Defendants submitted as additional authority (ECF No. 3177-1) the
case of In re Fed. Bureau of Prisons Execution Protocol Cases (Roane v. Barr), No. 19-mc-145
(TSC), 2020 U.S. Dist. LEXIS 153354 (D.D.C. Aug. 15, 2020). Therein, Judge Tanya S. Chutkan,
who had previously enjoined the federal government’s execution of Daniel Lewis Lee and Dustin
Lee Honkin, noted that the Supreme Court had vacated that injunction and allowed the executions
to proceed. Id. at *10, citing Barr v. Lee, 140 S.Ct. 2590 (2020) (per curiam). The Supreme Court
vacated the injunction despite accepting the district “court’s conclusion that pulmonary edema and
excruciating pain was very likely to occur” from the administration of pentobarbital. Id. at *11.
From that decision, Judge Chutkan concluded that “[s]o long as pentobarbital is widely used, Lee
suggests that no amount of new evidence will suffice to prove that the pain pentobarbital causes
reaches unconstitutional levels.” Id. at *13.
Defendants argue that Lee and Roane “powerfully validate Defendants’ core contention
that the plausibility of Plaintiffs’ Eighth Amendment claims must be assessed in light of the
controlling precedents of the Supreme Court and the Sixth Circuit which do address the three-drug
method used by Ohio.” (Reply, ECF No. 3260, PageID 156969 (emphasis in original)).
Defendants’ argument is correct but irrelevant in light of the overbreadth of their Motion. As
Plaintiffs correctly argue, executions via pentobarbital versus a three-drug protocol are quite
different for the purposes of the ISC:
As this Court is aware, pentobarbital is a barbiturate, while
midazolam is a sedative. A sufficient dose of the barbiturate
pentobarbital will eventually cause anesthesia and insensation to
pain. Plaintiffs have alleged that because midazolam is a sedative
and not a barbiturate anesthetic, they will experience the full brunt
of the pain inflicted by Defendants’ protocol—the horrific pain and
terror of pulmonary edema and the excruciating pain from the
paralytic and potassium chloride.
(Resp. to Supp. Auth., ECF No. 3256-1, PageID 156848-49 (emphasis in original)).
Had Defendants specifically moved to dismiss ISC claims as they relate to pulmonary
edema or any challenges to the protocol’s permitting the use of pentobarbital8, Lee and Roane
would be persuasive even at the motion to dismiss stage. But Defendants did not do that; they
8 Ohio’s current protocol, 01-COM-11, authorizes a one-drug pentobarbital execution, That alternative method has
not been used since 01-COM-11 was adopted in its present from in October 2016 (ECF No. 965-13, PageID 34253).
moved to dismiss in toto. Consequently, Lee and Roane do not provide any basis to dismiss the
ISC.
For the foregoing reasons, Defendants’ Motion to Dismiss is granted as to the Second,
Fourth (with the exception of Sub-Claims A.1, A.10, B.1, and B.8), Fifth through Tenth, Twelfth,
Fourteenth, Thirtieth and Thirty-First Causes of Action, and denied as to all other causes of action.
November 21, 2020.
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 no later than December 29, 2020. 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. 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. Any response to said objections must be served and filed
no later than January 19, 2021. #
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