In re: Ohio Execution Protocol Litigation.
Mike DeWine, et al., Defendants-Appellees. Bennie Adams, et al., Plaintiffs, Warren K. Henness, Plaintiff-Appellant,
from the United States District Court for the Southern
District of Ohio at Columbus. No. 2:11-cv-01016-Michael R.
Merz, Magistrate Judge.
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.
Keith Henness appeals the district court's decision
denying his request for injunctive relief and for a stay of
execution. We AFFIRM.
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.
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.
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).
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)
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.
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