In re: Ohio Execution Protocol Litigation.
John Kasich, et al., Defendants-Appellees. Alva E. Campbell, Jr.; Raymond Tibbetts, Plaintiffs-Appellants,
Argued: January 25, 2018
from the United States District Court for the Southern
District of Ohio at Columbus. No. 2:11-cv-01016-Michael R.
Merz, Magistrate Judge.
G. Barnhart, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE
SOUTHERN DISTRICT OF OHIO, Columbus, Ohio, for Appellants.
T. Reed, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio,
G. Barnhart, Allen L. Bohnert, David C. Stebbins, Adam M.
Rusnak, Carol A. Wright, OFFICE OF THE FEDERAL PUBLIC
DEFENDER FOR THE SOUTHERN DISTRICT OF OHIO, Columbus, Ohio,
James A. King, PORTER, WRIGHT, MORRIS & ARTHUR LLP,
Columbus, Ohio, for Appellants.
T. Reed, Eric E. Murphy, Michael J. Hendershot, Hannah C.
Wilson, Jocelyn K. Lowe, Zoe A. Saadey, Charles L. Wille,
OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for
Before: BATCHELDER, ROGERS, and THAPAR, Circuit Judges.
M. BATCHELDER, CIRCUIT JUDGE.
death-row inmates, Raymond Tibbetts and Alva Campbell, moved
to enjoin their pending executions, claiming that Ohio's
midazolam-based, three-drug execution protocol presents a
constitutionally unacceptable risk of pain and suffering. The
district court considered the proffered evidence, determined
that the inmates had not met their burden, and denied the
requested injunctions. We AFFIRM.
obtain a preliminary injunction, a plaintiff must meet a
four-factor test, Glossip v. Gross, 135 S.Ct. 2726,
2736-37 (2015), though the "likelihood of success on the
merits" factor is determinative here. The merits
determination in this case is based on a two-part test in
which Tibbetts and Campbell must first show that Ohio's
execution protocol "presents a risk that is sure or
very likely to cause serious pain and needless
suffering." In re Ohio Execution Protocol (Fears v.
Morgan), 860 F.3d 881, 886 (6th Cir. 2017) (en banc),
cert. denied, 137 S.Ct. 2238 (2017) (quotation marks
and citations omitted). If they can satisfy that first part,
they must also "prove that an alternative method of
execution is available, feasible, and can be readily
implemented, among other things." Id. at 890
(citing Glossip, 135 S.Ct. at 2737 (quotation marks
omitted)). "[P]risoners cannot successfully challenge a
State's method of execution merely by showing a slightly
or marginally safer alternative[;] [they] must identify an
alternative that is feasible, readily implemented, and in
fact significantly reduces a substantial risk of severe
pain." Glossip, 135 S.Ct. at 2737 (quotation
marks, editorial marks, and citation omitted)).
this appeal arises from the Fears remand, we can
begin by recognizing that the Fears plaintiffs
(which included Tibbetts but not Campbell) had "shown
some risk that Ohio's execution protocol may cause some
degree of pain, at least in some people, " though
Fears noted that "some risk of pain is inherent
in any method of execution[, ] no matter how humane[, ] [a]nd
the Constitution does not guarantee a pain-free
execution." Fears, 860 F.3d at 890 (quotation
marks and citation omitted). But in Fears we held
that the plaintiffs had "fallen well short" of
proving a risk that Ohio's execution protocol is sure
or very likely to cause serious pain and needless
suffering and they, therefore, "failed to demonstrate a
likelihood of success on their claims." Id. at
this new motion after remand, the district court considered
whether Tibbetts and Campbell had "added sufficient
evidence" to reach the level of certainty of "sure
or very likely, " which the Fears plaintiffs
had failed to meet. See In re Ohio Execution Protocol
("Campbell"), No. 2:11-CV-1016, 2017 WL
5020138, at *12 (S.D. Ohio Nov. 3, 2017). After carefully
recounting their new evidence, the court concluded that they
had not. The court also evaluated their ...