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In re Ohio Execution Protocol Litigation

United States Court of Appeals, Sixth Circuit

February 1, 2018

In re: Ohio Execution Protocol Litigation.
v.
John Kasich, et al., Defendants-Appellees. Alva E. Campbell, Jr.; Raymond Tibbetts, Plaintiffs-Appellants,

          Argued: January 25, 2018

         Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 2:11-cv-01016-Michael R. Merz, Magistrate Judge.

         ARGUED:

          Erin G. Barnhart, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE SOUTHERN DISTRICT OF OHIO, Columbus, Ohio, for Appellants.

          Peter T. Reed, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees.

         ON BRIEF:

          Erin 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.

          Peter 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 Appellees.

          Before: BATCHELDER, ROGERS, and THAPAR, Circuit Judges.

          OPINION

          ALICE M. BATCHELDER, CIRCUIT JUDGE.

         Two 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.

         To 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)).

         Because 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 890, 892.

         Facing 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 ...


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