In re Ohio Execution Protocol Litigation

          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.

          ON BRIEF: Allen L. Bohnert, David C. Stebbins, Lisa M. Lagos, Paul R. Bottei, Adam M. Rusnak, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE SOUTHERN DISTRICT OF OHIO, Columbus, Ohio, Randall R. Porter, OFFICE OF THE OHIO PUBLIC DEFENDER, Columbus, Ohio, James A. King, PORTER, WRIGHT, MORRIS & ARTHUR, Columbus, Ohio, for Appellants.

          Benjamin M. Flowers, Michael J. Hendershot, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees. Sarah K. Campbell, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Amicus Curiae.

          Before: BOGGS, SILER, and SUTTON, Circuit Judges.

          AMENDED OPINION

          SILER, Circuit Judge.

         Warren Keith Henness appeals the district court's decision denying his request for injunctive relief and for a stay of execution. We AFFIRM.

         I.

         Henness was convicted of several offenses, including aggravated murder, from conduct occurring in 1992. State v. Henness, 679 N.E.2d 686, 691, 698 (Ohio 1997). Upon conviction, the court sentenced Henness to death. Id. at 691.

         Henness subsequently filed suit challenging Ohio's method of execution under 42 U.S.C. § 1983, claiming that it violated his constitutional rights. As his execution date approached, Henness moved the district court to stay his execution and to preliminarily enjoin Ohio from executing him. Specifically, he argued that the drug protocol Ohio intended to use to carry out his death sentence-which is composed of 500 milligrams of midazolam, a paralytic agent, and potassium chloride-was likely to cause him to suffer a painful death, and that, given the availability of significantly less painful alternative methods of execution, the use of that protocol would violate the Eighth Amendment's prohibition on cruel and unusual punishment. Though Henness presented expert testimony in support of his claim, the district court denied relief. Henness now appeals certain of the court's conclusions.

         II.

         We review a district court's decision to grant or deny a preliminary injunction for abuse of discretion. Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 664 (2004). "Under this standard, [we] review[] the district court's legal conclusions de novo and its factual findings for clear error." Babler v. Futhey, 618 F.3d 514, 520 (6th Cir. 2010) (citation omitted).

         "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Glossip v. Gross, 135 S.Ct. 2726, 2736 (2015) (citation omitted).

         Here, the district court's decision focused on the question whether Henness demonstrated a likelihood of success on the merits of his Eighth Amendment claim. Thus, our review is limited to that question.

         In Glossip, the Supreme Court held that, to demonstrate a likelihood of success on the merits of an Eighth Amendment challenge to a state's method of execution, the plaintiff must: (1) show that the intended method of execution is "sure or very likely to cause serious illness and needless suffering," and (2) "identify an alternative [method] that is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe ...