Case No. 2:04-cv-1156 (S.D. Ohio May. 31, 2007)

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Cooey v. Taft

United States District Court, S.D. Ohio, Eastern Division

May 31, 2007

Case No. 2:04-cv-1156 (S.D. Ohio May. 31, 2007)

Opinion

Case No. 2:04-cv-1156.

May 31, 2007

OPINION AND ORDER

GREGORY FROST, District Judge

Richard Cooey, a state prisoner sentenced to death by the State of Ohio, is the original plaintiff in a civil rights action pending before this Court that challenges multiple facets of the lethal injection protocol used by the State of Ohio. This matter is before the Court on the emergency motion of Clarence Carter for a preliminary injunction or an order under the All Writs Act staying his execution, scheduled for July 10, 2007. (Doc. # 170.) For the reasons that follow, this Court finds the motion well taken. Thus, it is ORDERED, ADJUDGED, and DECREED that the State of Ohio, and any person acting on its behalf, is hereby STAYED from implementing an order for the execution of Clarence Carter issued by any court of the State of Ohio until further Order from this Court.

On February 20, 2007, this Court issued an order granting Plaintiff Clarence Carter permission to intervene. (Doc. # 160.) On March 28, 2007, at the State's request, the Supreme Court of Ohio set an execution date for Carter of July 10, 2007. (Doc. # 170, at 51.) Accordingly, Carter filed on April 19, 2007 the instant emergency motion for preliminary injunction, or at the very least for an order under the All Writs Act, to stay his execution. Also before the Court are the Defendants' brief in opposition (Doc. # 183) and Plaintiff's amended reply memorandum (Doc. # 189). On April 20, 2007, this Court conducted an informal telephone conference in accordance with S.D. Ohio Civ. R. 65.1(a). The parties should note that "findings of fact and conclusions of law made by a district court in granting a preliminary injunction are not binding at a trial on the merits." United States v. Edward Rose Sons, 384 F.3d. 258, 261 (6th Cir. 2004) (citing University of Texas v. Camenisch, 451 U.S. 390 395 (1981)).

"The purpose of a preliminary injunction is always to prevent irreparable injury so as to preserve the court's ability to render a meaningful decision on the merits." United Food Commercial Workers Union, Local 1099 v. Sw. Ohio Reg'l Transit Auth., 163 F.3d 341, 348 (6th Cir. 1998) (quoting Stenberg v. Cheker Oil Co., 573 F.2d 921, 925 (6th Cir. 1978)). The decision of whether to issue a preliminary injunction rests within the discretion of the district court. See, e.g., N.A.A.C.P. v. City of Mansfield, 866 F.2d 162, 166 (6th Cir. 1989). In determining whether to exercise its discretion to grant a preliminary injunction, a district court must balance the following factors:

(1) whether the movant has a "strong" likelihood of success on the merits; (2) whether the movant would otherwise suffer irreparable injury; (3) whether issuance of a preliminary injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of a preliminary injunction.

McPherson v. Michigan High Sch. Athletic Ass'n, Inc., 119 F.3d 453, 459 (6th Cir. 1997) (en banc) (quoting Sandison v. Michigan High Sch. Athletic Ass'n, Inc., 64 F.3d 1026, 1030 (6th Cir. 1995)). This Court finds that each factor favors Carter's request for a preliminary injunction, even after recent developments in this case that might, at first glance, suggest that the injunction should not issue.

On December 21, 2006, this Court issued an opinion and order granting Kenneth Biros's emergency motion for a preliminary injunction staying his execution. (Doc. # 151.) The Court incorporates that order by reference and attaches it for convenience. For purposes of the instant order, the most germane point to be taken from the Biros order is the Court's conclusion therein that the law of this case is that this Court should evaluate individually and on a case-by-case basis any motion for a preliminary injunction that comes before it.

Thus, in evaluating Carter's emergency motion for a preliminary injunction, the Court notes first that principals of equity weigh in Carter's favor, insofar as he was diligent in filing his motion to intervene and filing the instant emergency motion for a preliminary injunction. As noted above, this Court issued an order on February 20, 2007 granting Carter's request for permission to intervene in this action. (Doc. # 160.) Pursuant to the reasoning set forth in this Court's March 28, 2005 Opinion and Order (Doc. # 14), the statute of limitations on Carter's § 1983 claim did not begin to run until his execution became imminent ( i.e., when the United States Supreme Court declined to review his habeas corpus case or when the time for seeking United States Supreme Court review expired) and when he knew or had reason to know of the facts giving rise to his claim. On April 6, 2006, the Sixth Circuit affirmed the trial court's decision denying Carter's habeas corpus petition, Carter v. Mitchell, 443 F.3d 517 (6th Cir. 2006), and on July 25, 2006, the Sixth Circuit rejected Carter's petition for a rehearing and suggestion for a rehearing en banc. On January 8, 2007, the United States Supreme Court denied Carter's petition for certiorari. Carter filed his motion to intervene in this case the next day.

As Carter points out, when he filed his motion to intervene on January 9, 2007, he did not have an execution date. Further, when this Court granted him permission to intervene on February 20, 2007, he still did not have an execution date. However, on March 28, 2007, the Supreme Court of Ohio, at the State's request and even though provided with notice of Carter's intervention in this case, scheduled Carter's execution by lethal injection for July 10, 2007. (Doc. # 170, at 5.) On April 19, 2007, Carter filed the instant emergency motion for a preliminary injunction or an order under the All Writs Act. Pursuant to this Court's definition of the statute of limitations, which was and is in full force and effect at all times relevant to Carter's endeavor to intervene in this case, Carter proceeded in a timely and diligent manner.

This Court is well aware, of course, that a Sixth Circuit panel has since issued an opinion that would overrule this Court's definition of the statute of limitations for method-of-execution challenges raised under 42 U.S.C. § 1983. That March 2, 2007 opinion states that the appropriate date for commencement of the limitations period for a § 1983 challenge on Eighth Amendment grounds to a state's execution protocol is upon conclusion of direct review of the death sentence in the state court or the expiration of time for seeking such review, and that the limitations period applicable to the instant action, (in connection with which Plaintiff-Intervenor Carter now seeks an order staying his execution), commenced no later than when the challenged protocol became Ohio's exclusive method of execution, i.e., 2001. Cooey v. Strickland, 479 F.3d 412, 422 (6th Cir. 2007). Whatever effect that opinion eventually has on this case, the most dramatic of which would compel the dismissal of most if not all of the plaintiffs, the opinion can not control this Court's analysis of whether Carter proceeded in a timely and diligent manner when he filed his motion to intervene and subsequent motion for a preliminary injunction. Given the law that was in effect at all times relevant to Carter's pursuit to intervene in this case — and given that until the appellate opinion is controlling this Court's interpretation of that law remains in effect-the Court concludes that Carter was timely in filing his motion to intervene in this case.

The Sixth Circuit has still not yet ruled on the request for a rehearing and suggestion for rehearing en banc, which the Plaintiff filed on March 13, 2007. That being so, the Sixth Circuit has not yet issued its mandate in this case. See Fed.R.App.P. 41(d)(1) ("The timely filing of a . . . petition for rehearing en banc . . . stays the mandate until disposition of the petition or motion, unless the court orders otherwise."). The March 2, 2007 appellate opinion can therefore be of no effect at this time.

Returning to the four factors that this Court must evaluate and balance, see McPherson, 119 F.3d at 459, given the evidence that Jeffrey Hill first produced and which is now part of the record; additional anecdotal evidence that Plaintiff-Intervenor Biros produced regarding the suspension of executions in Florida (Doc. # 149-9) and a finding by the Northern District of California that California's three-drug protocol violates the Eighth Amendment (Doc. # 149-10); and additional, more recent evidence that Carter has produced in the form of a research article published on April 24, 2007 raising questions about the efficacy of the three-drug protocol (Doc. # 187-2), the Court is satisfied that Carter has demonstrated at least as strong a likelihood of success on the merits as Biros before him. That the Sixth Circuit recently issued a decision overruling this Court's definition of the statute of limitations applicable to Cooey's challenge does not undermine the Court's conclusion on this factor.

The notably limited record before this Court reflects a growing body of evidence calling the lethal injection protocol like the one Ohio uses increasingly into question. This Court stated unequivocally in its order granting Hill's request for a preliminary injunction that it can not and will not turn a blind eye to the evidence presented in the cases of Brown v. Beck in North Carolina and Morales v. Hickman in California appearing to contradict the opinion of Dr. Mark Dershwitz that virtually all persons given the dose of sodium thiopental prescribed under Ohio's lethal-injection protocol would be rendered unconscious and would stop breathing within one minute. (Doc. # 45, at 6-9.) This Court reiterated that position when it granted Plaintiff-Intervenor Biros's request for a preliminary injunction, noting additionally that multiple states had, by that point, recently placed executions on hold due to serious concerns about various aspects of their respective lethal injection protocols. (Doc. # 11, at 7 n. 5.) Carter has provided a research article published on April 24, 2007 questioning, among other things, whether any reliable medical research ever supported the formation of the three-drug protocol first devised by Oklahoma and then essentially copied by every other state seeking to use lethal injection as a method of execution, whether the administration of the first drug, thiopental, is alone fatal or sufficient to anesthetize the inmate for the duration of the execution, and whether the administration of the third drug, potassium chloride, reliably induces cardiac arrest. (Doc. # 187-2.)

Defendants continue to take this Court to task for its conclusion in this regard, arguing that evidence from hearings in other cases regarding lethal injection protocols employed by other states is insufficient to establish a strong likelihood of success on the merits and that the Court's conclusion effectively lowers the standard in McPherson. The Court continues to disagree with Defendants' assertion that it has lowered the McPherson standard, for it bears reminding that the four factors identified in McPherson are "factors to be balanced, not prerequisites that must be met." Six Clinics Holding Corp., II v. Cafcomp Systems, 119 F.3d 393, 400 (6th Cir. 1997). Viewed in this context, Defendants have not cited, and the Court is not aware of, any cases holding that demonstrating a strong likelihood of success on the merits requires the movant to produce a certain quantum or quality of evidence. Regarding Defendants' argument that " McPherson does not provide for an incrementally better showing than previous litigants" (Doc. # 183, at 8), the Court notes that McPherson was not dealing with the decision of whether to stay the movant's execution by means involving an unacceptable and unnecessary risk that the movant could suffer excruciating pain in violation of the Eighth Amendment; this Court is. And that fact, in this Court's view, is entitled to some weight when viewing whether Carter has demonstrated a strong likelihood of success on the merits. Regarding Defendants' attack of this Court's reliance on evidence produced in other cases around the country and anecdotal evidence regarding problems that have occurred during recent executions in Ohio and other states, the Court notes that although such evidence is not ideal, it is nonetheless persuasive regarding the first factor in McPherson and is arguably is the best evidence that the plaintiffs in this case could produce, given the fact that this case was stayed before any discovery, expert testimony, or other fact-finding could commence.

This Court is well aware that some "more recent decisions have found no likelihood of success on the merits." (Doc. # 183, at 13.) But those cases involved different circumstances, procedural postures, and evidence than the case before this Court, and rejected "showings" of the likelihood of success on the merits that this Court has never required. For example, in Patton v. Jones, 193 F. App'x 785 (10th Cir. 2006), the Court of Appeals for the Tenth Circuit, in concluding that the plaintiff had failed to establish a significant possibility of success on the merits, had the benefit not only of evidence and findings from an evidentiary hearing conducted by the district court, but also of a revision by the State of the execution protocol during the pendency of the plaintiff's appeal to the Tenth Circuit. The Tenth Circuit went on to note, as the district court had, that the Eighth Amendment did not entitle the plaintiff to that which would be "optimally desirable" in a "surgical setting." Patton, 193 F. App'x at 790. Respectfully, this Court's conclusion that Carter has demonstrated a strong likelihood of success on the merits in no way turns on a belief, or amounts to a finding, that the Eighth Amendment entitles Carter to an "optimally desirable" execution.

Furthermore, this Court is not entirely persuaded that the relevant inquiry is satisfied by looking only, if at all, at prior cases finding little chance of success on the merits. As Judge Martin recently pointed out, "[i]f this was the primary relevant inquiry, as the panel opinions suggest, no challenge to a method of execution would ever go forward, no matter how indifferent a state became to the pain and suffering inflicted by the process, simply because nobody elese has successfully challenged the procedure before." Alley v. Little, 452 F.3d 621, 623 (6th Cir. 2006) (Martin, J., dissenting from order denying petition for rehearing en banc). It defies logic to outright reject a constitutional challenge on the muddled rationale that such a challenge had not previously prevailed. Under that approach, no statute or practice would ever be — or have been — found unconstitutional. It does not matter if one believes in original intent or a living Constitution to accept this fundamental premise of jurisprudence.

In addressing whether Carter has established a strong likelihood of success on the merits, this Court would be remiss if it did not mention the Sixth Circuit's March 2, 2007 opinion that would overrule this Court's definition of the statute of limitations for method-of-execution challenges raised under 42 U.S.C. § 1983. Cooey v. Strickland, 479 F.3d 412, 422 (6th Cir. 2007). That opinion's rationale could require dismissal of Carter's complaint. But that possibility cannot cut against Carter in his effort to demonstrate a strong likelihood of success on the merits. Crediting an opinion that may or may not result in binding precedent at this time would transform what is at this point a non-binding opinion into the law. Rather, this Court is guided, if not bound by law-of-the-case considerations, by the Sixth Circuit's own decision on March 19, 2007 not to vacate Plaintiff-Intervenor Biros's preliminary injunction despite the March 2, 2007 opinion contrary to this Court's definition of the statute of limitations and directing this Court to dismiss the case. After the Sixth Circuit issued that March 2, 2007 opinion, the State filed a motion asking the Sixth Circuit to vacate Biros's preliminary injunction so that his execution scheduled for March 20, 2007 could proceed. The Sixth Circuit declined, stating that Biros was an intervenor in the case who had joined in the petition for rehearing with suggestion for rehearing en banc that was still pending before the Sixth Circuit and that the State was free to renew its motion to vacate following the Sixth Circuit's resolution of that petition. (Doc. # 170-4, at 6.) Guided by the Sixth Circuit's decision in this regard, this Court finds that Carter is entitled to the same — namely, the opportunity to continue litigating his Eighth Amendment challenge to Ohio's lethal injection protocol by way of the pending petition for rehearing with suggestion for rehearing en banc.

For the same reason — i.e., the Sixth Circuit's March 19, 2007 decision denying the State's motion to vacate Biro's preliminary injunction — this Court is constrained to conclude that it is not bound by the Sixth Circuit's decision in Workman v. Bredesen, ___ F.3d. ___, 2007 WL 1311330 (6th Cir. May 7, 2007), reversing the district court's decision granting a preliminary injunction and finding, among other things, an "absence of any meaningful chance of success on the merits. . . ." Id. at *13. Workman was not issued as part of this litigation on appeal and cannot logically serve to undo the law of the case that has been developed by the appellate panels involved in this litigation. Moreover, Workman involved distinguishing factors important to its appellate majority, including extensive state procedures and a governor-initiated review of the state protocol. There is no record of such Ohio procedures or review here.

Returning to the four factors set forth in McPherson, the Court concludes that the second factor also weighs in Carter's favor. The evidence that continues to mount calling multiple conclusions by Dr. Dershwitz into question also persuades this Court that there is an unacceptable and unnecessary risk that Carter will be irreparably harmed absent the injunction, i.e., that Carter could suffer unnecessary and excruciating pain while being executed in violation of his Eighth Amendment right not to be subjected to cruel and unusual punishment.

Regarding the third factor, the Court is not persuaded that issuance of the preliminary injunction will cause substantial harm to the State by comparison. Without diminishing in any way the State's significant interest in enforcing its criminal judgments in a timely fashion, it appears to this Court — even without a fully developed record — that the potential flaws identified in Ohio's lethal injection protocol giving rise to the unacceptable risk of violating the Eighth Amendment's proscription against cruel and unusual punishment are readily fixable. Thus, any delay in carrying out Carter's execution should and can be minimal. Any argument that the granting of an injunction would harm the State's interest in fulfilling the judgment against Plaintiff Carter in a timely manner is somewhat disingenuous, considering that but for the State's interlocutory appeal, many if not all of the underlying issues would in all likelihood have been resolved by now. The fact that the state-obtained stay has prevented such resolution qualifies the weight to be afforded Defendants' asserted harm, because such harm is ultimately self-inflicted. Self-inflicted harm that could result from issuance of preliminary injunctive relief should not necessarily preclude an injunction. Cf. Pappan Enter. v. Hardee's Food Sys., Inc., 143 F.3d 800, 806 (3d Cir. 1998) (holding in trademark infringement case that "a party's self-inflicted harm by choosing to stop its own performance under the contract and thus effectively terminating the agreement is outweighed by the immeasurable damage done to the franchiser of the mark"); Midwest Guar. Bank v. Guaranty Bank, 270 F. Supp. 2d 900, 924 (E.D. Mich. 2003) (holding that a party "cannot place itself in harms way, and then later claim that an injunction should not issue because of costs which it must incur in order to remedy its own misconduct").

Contrary to Defendants' argument, this Court is not penalizing them for attempting to vindicate their defenses in the interlocutory appeal. (Doc. # 183, at 16-18.) But their request for the interlocutory appeal and the resulting stay in these proceedings are factors the Court must weigh. Logically, these factors mitigate any assertion by Defendants of irreparable harm stemming from the issuance of a preliminary injunction.

Finally, this Court is persuaded that the public interest is served only by enforcing constitutional rights and by the prompt and accurate resolution of disputes concerning those constitutional rights. By comparison, the public interest has never been and could never be served by rushing to judgment at the expense of a condemned inmate's constitutional rights.

This Court remains mindful of other cases raising the same or similar challenges in which courts have denied motions for a preliminary injunction. See, e.g., Smith v. Johnson, 440 F.3d 262, 263 (5th Cir. 2006); Bieghler v. Donahue, 163 F. App'x 419 (7th Cir. 2006), vacated, 126 S.Ct. 1190 (2006); Vinson v. Johnson, 126 S.Ct. 1908, 2006 WL 1109748 (U.S. Apr. 27, 2006); Alley v. Little, 181 F. App'x 509 (6th Cir. 2006). In those cases, however, the plaintiffs' undue delay in bringing their § 1983 actions was a factor weighing against them relative to the State's strong interest in enforcing its criminal judgments. For example, in Smith v. Johnson, the Fifth Circuit remarked that, "we have made clear that waiting to file such a challenge days before a scheduled execution constitutes unnecessary delay. Smith, 440 F.3d at 263 (citations omitted). In this Court's view, there has been no such delay on Carter's part.

For the foregoing reasons, the Court GRANTS Plaintiff Carter's motion for an emergency preliminary injunction. (Doc. # 170.) This Court, having considered the matter pursuant to S.D. Ohio Civ. R. 67.1, declines to require a security bond. Moltan Co. v. Eagle-Picher Indus., Inc., 55 F.3d 1171, 1176 (6th Cir. 1995) (explaining that whether to require a bond is within the discretion of the court).

Because this Court finds that Plaintiff Carter is entitled to a preliminary injunction staying his execution, it is not necessary to address Biros's alternative argument urging the Court to issue an order under the All Writs Act staying his execution.

Thus, it is ORDERED, ADJUDGED, and DECREED that the State of Ohio, and any person acting on its behalf, is hereby STAYED from implementing an order for the execution of Clarence Carter issued by any court of the State of Ohio until further Order from this Court.

IT IS SO ORDERED.

OPINION AND ORDER

Richard Cooey, a state prisoner sentenced to death by the State of Ohio, is the original plaintiff in a civil rights action pending before this Court that challenges multiple facets of the lethal injection protocol used by the State of Ohio. This matter is before the Court on the emergency motion of Kenneth Biros for a preliminary injunction or an order under the All Writs Act staying his execution, scheduled for January 23, 2007 (Doc. # 144). For the reasons that follow, this Court finds the motion well taken. Thus, it is ORDERED, ADJUDGED, and DECREED that the State of Ohio, and any person acting on its behalf, is hereby STAYED from implementing an order for the execution of Kenneth Biros issued by any court of the State of Ohio until further Order from this Court.

On November 9, 2006, this Court issued an order granting Plaintiff Kenneth Biros permission to intervene. (Doc. # 126.) On November 30, 2006, at the State's request, the Supreme Court of Ohio set an execution date for Biros of January 23, 2007. (Doc. # 126, at 1.) Accordingly, Biros filed the instant Emergency Motion for Preliminary Injunction on December 5, 2006. Also before the Court are the Defendants' brief in opposition (Doc. # 148) and Plaintiff's reply memorandum (Doc. # 149). On December 11, 2006, this Court conducted an informal telephone conference in accordance with S.D. Ohio Civ. R. 65.1. The motion is therefore now ripe for disposition.

The parties should note that "findings of fact and conclusions of law made by a district court in granting a preliminary injunction are not binding at a trial on the merits." United States v. Edward Rose Sons, 384 F.3d. 258, 261 (6th Cir. 2004) (citing University of Texas v. Camenisch, 451 U.S. 390 395 (1981)).

It is well settled that "[t]he purpose of a preliminary injunction is always to prevent irreparable injury so as to preserve the court's ability to render a meaningful decision on the merits." United Food Commercial Workers Union, Local 1099 v. Southwest Ohio Regional Transit Authority, 163 F.3d 341, 348 (6th Cir. 1998) (quoting Stenberg v. Cheker Oil Co., 573 F.2d 921, 925 (6th Cir. 1978)). The decision of whether to issue a preliminary injunction rests within the discretion of the district court. See, e.g., N.A.A.C.P. v. City of Mansfield, 866 F.2d 162, 166 (6th Cir. 1989). In determining whether to exercise its discretion to grant a preliminary injunction, a district court must balance the following factors:

(1) whether the movant has a "strong" likelihood of success on the merits; (2) whether the movant would otherwise suffer irreparable injury; (3) whether issuance of a preliminary injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of a preliminary injunction.

On October 17, 2006, this Court issued an opinion and order granting Jeffrey Lundgren's motion to intervene and motion for a preliminary injunction staying his execution. (Doc. # 92.) The Court incorporates that order by reference and attaches it for convenience. Defendants appealed this Court's decision to the Sixth Circuit Court of Appeals. Following a denial by the En Banc Court of Defendants' request for an en banc hearing, the appeal was assigned under Internal Operating Rule 22 of the appellate rules of the Sixth Circuit to a panel consisting of Judges Merritt, Daughtrey, and Clay — the panel that ruled on Lundgren's habeas corpus appeal. That panel issued an order on October 23, 2006 transferring the appeal to a panel consisting of Judges Surheinrich, Siler, and Gilman — the panel assigned to case No. 05-4057, Cooey v. Taft. In so doing, the former panel reasoned that "[i]t would be grossly unfair for different panels of this Court to reach opposite conclusions on the issue of the constitutionality of Ohio's method of lethal injection so that some capital defendants are put to death by lethal injection while others similarly situated are spared." (Doc. # 107, at 2.)

Thereafter, on October 23, 2006, the " Cooey panel" issued a one-page, summary order vacating Lundgren's stay of execution. (Doc. # 123.) That order informed this Court that it had erred in granting Lundgren a preliminary injunction. Unfortunately, as this Court has previously lamented, the appellate order simply did not tell the Court how it had erred. Judge Gilman dissented, stating that he would have upheld the stay of execution issued by this Court because he found no abuse of discretion on this Court's part in its evaluation of the factors governing the grant of Lundgren's emergency motion for a preliminary injunction.

Construing the Sixth Circuit's Lundgren order as the law of this case, this Court on November 9, 2006 denied Plaintiff-Intervenor Jerome Henderson's motion for a preliminary injunction staying his execution (Doc. # 124), and on November 22, 2006 denied Plaintiff-Intervenor John Spirko's motion for a preliminary injunction staying his execution (Doc. # 137). The Court incorporates those orders by reference and attaches them for convenience. This Court stated unmistakably in both orders that although it was of the view that both plaintiffs were entitled to preliminary injunctions, the law of this case appeared to preclude this Court from granting their motions for preliminary injunctions.

A subsequent development punctured this law-of-the-case interpretation. On December 4, 2006, a panel of the Sixth Circuit consisting of Judges Norris, Batchelder, and Clay — the panel that previously ruled on Henderson's habeas corpus appeal and Rule 60(b) appeal — issued a summary order granting Henderson's motion for an emergency stay of execution, sparing Henderson from his execution that was scheduled for December 5, 2006. (Doc. # 142.) Judge Batchelder dissented, stating in relevant part that she could not "reconcile the majority's decision to grant this stay with our prior decision to vacate the district court's grant of a stay to Jeffrey Lundgren less than six weeks ago." (Doc. # 142, at 1.)

The Henderson majority's order did not address the original Lundgren panel's concerns over consistency that had prompted transfer to the " Cooey panel." It appears that despite the existence of the Cooey panel, the diverse initial panel assignments might be because the Sixth Circuit considers each plaintiff's § 1983 claims to be "incidental and collateral matters" to the plaintiff's death penalty cases. See 6th Cir. I.O.P. 22(a)(1) ("The [death penalty] panel shall be assigned the case and all matters pertaining to the motion to stay, application for certificate of appealability, the merits, second or successive petitions, remands from the Supreme Court of the United States, and all incidental and collateral matters, including any separate proceedings questioning the conviction or sentence.").

Faced with two different orders by two different panels reaching two different conclusions, this Court is left with the task of determining what the law of this case is. Because neither order provides any reasoning for its outcome, this Court can only conclude that the law of the case is that this Court should evaluate individually and on a case-by-case basis each motion for a preliminary injunction that comes before it. In other words, there is apparently no substantive law of the case as to all intervening plaintiffs here because there is no apparent consistency to the appellate decisions that have arisen from this litigation.

In this regard, the Court distinguishes the order that it issued on December 6, 2006 denying Plaintiff Spirko's motion for reconsideration of the Court's order denying his motion for a preliminary injunction. (Doc. # 145.) Spirko had argued that the Sixth Circuit's decision in Henderson should control over the Sixth Circuit's decision in Lundgren. The Court rejected Spirko's motion for reconsideration because granting it would have required the Court to find that it had erred in previously denying his motion for a preliminary injunction. Given the Sixth Circuit's lack of clarity (as detailed in the Court's prior Opinion and Order), the Court could not reach that conclusion. And having concluded that the law of this case is simply that the Court must evaluate each motion for a preliminary injunction on its own merits and on a case-by-case basis, the Court still cannot say that it erred as a matter of law at the time that it denied Spirko's motion for a preliminary injunction.
It is the hope of this Court that, absent an intervening, dispositve decision from the Cooey panel on the interlocutory appeal that was argued on December 7, 2006, whatever panel entertains the likely appeal of the instant decision will explain its rationale in affirming or reversing this Court. Absent Spirko's recent appeal (Doc. # 150), such an expressed rationale might have afforded this Court cause to sua sponte revisit the interlocutory decision denying Spirko reconsideration and to order additional briefing on the matter. It would afford the lower courts of this Circuit the necessary guidance that has thus far proved curiously elusive.

This Court notes that the Lundgren decision was unreported, which means that it was not binding on the Henderson panel pursuant to 6th Cir. Rule 206(c). An unpublished decision can, however, present the controlling law of the case. Kidd v. Commissioner of Social Security Administration, 7 Fed. Appx. 483 (6th Cir. 2001) (citing pre-December 2006 6th Cir. Rule 28(g) in explaining that although "unpublished authority is without precedential value . . . `[c]itation of unpublished decisions in briefs and oral arguments in [the court of appeals] and in the district courts within this Circuit is disfavored . . . except for the purpose of establishing . . . the law of the case'"). Apart from Judge Batchelder, there is no indication that anyone on either panel regarded or intended the Lundgren decision to be controlling except as to Lundgren. This non-binding approach is notable, given that "[g]enerally, a decision of a court of appeals in one stage of the case constitutes the law of the case for subsequent appeals in the same case" and that "[o]ne panel of an appellate court will not reconsider questions that another panel has previously decided in the same case." 18 James W. Moore, Moore's Federal Practice § 134.22[2][c], at 134-54.5 (3d ed. 2006). The factual similarities between Lundgren and Henderson — both parties to different appeals in the same case presenting the same legal issue — would suggest that the Lundgren decision falls within this law-of-the-case approach, but the Henderson decision makes clear that it somehow does not.

Thus, in evaluating Biros's emergency motion for a preliminary injunction, the Court notes first that principals of equity weigh in Biros's favor, insofar as he was more than diligent in filing his motion to intervene and filing the instant emergency motion for a preliminary injunction. As noted above, this Court issued an order on November 9, 2006 granting Biros's request for permission to intervene in this action. (Doc. # 126.) Pursuant to the reasoning set forth in this Court's March 28, 2005 Opinion and Order (Doc. # 14), the statute of limitations on Biros's § 1983 claim did not begin to run until his execution became imminent ( i.e., when the United States Supreme Court declined to review his habeas corpus case or when the time for seeking United States Supreme Court review expired) and when he knew or had reason to know of the facts giving rise to his claim.

It appears from the record that after the district court originally granted Biros's petition for a writ of habeas corpus (Doc. # 110, at 3), the Sixth Circuit reversed that decision on September 9, 2005 and denied habeas relief. Biros v. Bagley, 422 F.3d 379 (6th Cir. 2005). According to Defendants, the Sixth Circuit denied Biros's petition for a rehearing en banc on January 23, 2006, after which the United States Supreme Court denied his certiorari petition on October 2, 2006. (Doc. # 110, at 3.) Biros filed his motion to intervene on October 18, 2006, before the expiration of his time for filing a petition for rehearing in the United States Supreme Court.

As Biros points out, when he filed his motion to intervene on October 18, 2006, he did not have an execution date. Further, when this Court granted him permission to intervene on November 9, 2006, he still did not have an execution date. However, on November 30, 2006, "the Ohio Supreme Court, at the State's request an even though provided with notice of Biros's intervention in this case, scheduled Biros's execution by lethal injection for January 23, 2007." (Doc. # 144, at 1.) Biros filed the instant emergency motion for a preliminary injunction, or an order under the All Writs Act, staying his execution on December 5, 2006.

Returning to the four factors that this Court must evaluate and balance, see McPherson, 119 F.3d at 459, and given the evidence that Jeffrey Hill first produced and that is now part of the record, as well as additional, more recent anecdotal evidence that Biros has produced regarding the suspension of executions in Florida (Doc. # 149-9) and a finding by the Northern District of California that California's three-drug protocol violates the Eighth Amendment, (Doc. # 149-10), the Court concludes that Biros at the very least has demonstrated a stronger likelihood of success on the merits than some of the plaintiffs who preceded him. This supports an injunction.

The limited record before this Court now includes a growing body of evidence calling Ohio's lethal injection protocol increasingly into question. This Court stated unequivocally in its order granting Hill's request for a preliminary injunction that it can not and will not turn a blind eye to the evidence presented in the cases of Brown v. Beck in North Carolina and Morales v. Hickman in California appearing to contradict the opinion of Dr. Mark Dershwitz that virtually all persons given the dose of sodium thiopental prescribed under Ohio's lethal-injection protocol would be rendered unconscious and would stop breathing within one minute. (Doc. # 45, at 6-9.)

The Court takes judicial notice that multiple states have recently placed executions on hold due to serious concerns over their lethal injection protocols.

Defendants take this Court to task for its conclusion in this regard, arguing that evidence from hearings in other cases is insufficient to establish a strong likelihood of success on the merits and that the Court's conclusion effectively lowers the standard in McPherson. The Court disagrees with Defendants' assertion that it has lowered the McPherson standard and reminds Defendants that the four factors identified in McPherson are "factors to be balanced, not prerequisites that must be met." Six Clinics Holding Corp., II v. Cafcomp Systems, 119 F.3d 393, 400 (6th Cir. 1997). Viewed in this context, Defendants have not cited, and the Court is not aware of, any cases holding that demonstrating a strong likelihood of success on the merits requires the movant to produce a certain quantum or quality of evidence.

Regarding Defendants' argument that " McPherson does not provide for an incrementally better showing than previous litigants," (Doc. # 148, at 8), the Court notes that McPherson was not dealing with the decision of whether to stay the movant's execution by means involving an unacceptable and unnecessary risk that the movant could suffer excruciating pain in violation of the Eighth Amendment. But this Court is. And that fact, in this Court's view, is entitled to some weight when determining whether Biros has demonstrated a strong likelihood of success on the merits.

Regarding Defendants' attack on this Court's reliance on evidence produced in other cases around the country and anecdotal evidence regarding problems that have occurred during recent executions in Ohio and other states, the Court notes that although such evidence is not ideal, it is nonetheless persuasive regarding the first factor in McPherson and is arguably the best evidence that the plaintiffs in this case could produce, given the fact that this case was stayed before any discovery or other fact-finding could commence.

The evidence that has begun to emerge calling multiple conclusions by Dr. Dershwitz into question also persuades this Court that there is an unacceptable and unnecessary risk that Biros will be irreparably harmed absent the injunction, i.e., that Biros could suffer unnecessary and excruciating pain while being executed in violation of his Eighth Amendment right not to be subjected to cruel and unusual punishment.

Any argument that the granting of an injunction would harm the State's interest in fulfilling the judgment against Plaintiff Biros in a timely manner is somewhat disingenuous, considering that but for the State's interlocutory appeal, many if not all of the underlying issues would in all likelihood have been resolved by now. The fact that the state-obtained stay has prevented such resolution qualifies the weight to be afforded Defendants' asserted harm, because such harm is ultimately self-inflicted. Self-inflicted harm that could result from issuance of preliminary injunctive relief should not necessarily preclude an injunction. Cf. Pappan Enter. v. Hardee's Food Sys., Inc., 143 F.3d 800, 806 (3d Cir. 1998) (holding in trademark infringement case that "a party's self-inflicted harm by choosing to stop its own performance under the contract and thus effectively terminating the agreement is outweighed by the immeasurable damage done to the franchiser of the mark"); Midwest Guar. Bank v. Guaranty Bank, 270 F. Supp. 2d 900, 924 (E.D. Mich. 2003) (holding that a party "cannot place itself in harms way, and then later claim that an injunction should not issue because of costs which it must incur in order to remedy its own misconduct").

To be clear: This Court is not penalizing Defendants for attempting to vindicate their defenses in the interlocutory appeal, despite Defendants' assertion to the contrary. (Doc. # 148, at 12-15.) But their request for the interlocutory appeal and the resulting consequent stay in these proceedings are factors that must be weighed, and, logically, they mitigate any assertion by Defendants of irreparable harm stemming from the issuance of a preliminary injunction. To conclude otherwise is to ignore the realities of this litigation and the parties' actions.

Finally, this Court is persuaded that the public interest only is served by enforcing constitutional rights and by the prompt and accurate resolution of disputes concerning those constitutional rights. By comparison, the public interest has never been and could never be served by rushing to judgment at the expense of a condemned inmate's constitutional rights.

This Court is mindful of the many cases raising the same or similar challenges in which courts have denied motions for a preliminary injunction. See, e.g., Smith v. Johnson, 440 F.3d 262, 263 (5th Cir. 2006); Bieghler v. Donahue, No. 06-1300, 2006 WL 229027 (7th Cir. Jan. 26, 2006), vacated, 126 S.Ct. 1190 (2006); Vinson v. Johnson, 126 S.Ct. 1908, 2006 WL 1109748 (U.S. Apr. 27, 2006); Alley v. Little, 181 Fed. Appx. 509, 2006 WL 1313365 (6th Cir. May 12, 2006). In those cases, however, the plaintiff's undue delay in bringing his § 1983 action was a factor weighing against him relative to the State's strong interest in enforcing its criminal judgments. For example, in Smith v. Johnson, the Fifth Circuit remarked that "we have made clear that waiting to file such a challenge days before a scheduled execution constitutes unnecessary delay. Smith, 440 F.3d at 263 (citations omitted). In this Court's view, there has been no such delay on Biros's part.

For the foregoing reasons, Plaintiff Biros's motion for an emergency preliminary injunction is GRANTED. This Court, having considered the matter pursuant to S.D. Ohio Civ. R. 67.1, declines to require a security bond. Moltan Co. v. Eagle-Picher Indus., Inc., 55 F.3d 1171, 1176 (6th Cir. 1995) (explaining that whether to require a bond is within the discretion of the court).

Because this Court finds that Biros is entitled to a preliminary injunction staying his execution, the Court need not and does not address Biros's alternative, moot argument urging the Court to issue an order under the All Writs Act staying his execution.

Thus, it is ORDERED, ADJUDGED, and DECREED that the State of Ohio, and any person acting on its behalf, is hereby STAYED from implementing an order for the execution of Kenneth Biros issued by any court of the State of Ohio until further Order from this Court.

IT IS SO ORDERED.

OPINION AND ORDER

I. Second Amended Emergency Motion to Intervene

A. Statute of Limitations

Defendants first argue that it would be futile to allow Henderson to intervene because his § 1983 claims are time-barred. On March 28, 2005, this Court issued an Opinion and Order denying Defendants' motion to dismiss Cooey's civil rights action challenging multiple facets of Ohio's lethal injection protocol. (Doc. # 14.) In so doing, the Court stated the following about when the statute of limitations begins to run on such claims:

[T]he statute of limitations begins to run on method-of-execution challenges raised in a § 1983 action when two conditions are met: the execution becomes imminent and the plaintiff knows or has reason to know of the facts giving rise to his specific method-of-execution challenge. In terms of defining when an execution becomes imminent, this Court is of the view that an execution becomes imminent not necessarily when an execution date is set, but when all other legal challenges to the validity of a death sentence come to an end, i.e., when the plaintiff has exhausted all of his state and federal avenues of relief. In this Court's view, that occurs when the United States Supreme Court denies certiorari in the plaintiff's habeas corpus proceeding or otherwise issues a decision foreclosing federal habeas corpus relief.

(Doc. # 14, at 11.) Defendants argue that Henderson's § 1983 claims began to accrue on April 25, 2002, when the United States Supreme Court denied certiorari in Henderson's habeas corpus appeal. Defendants insist that "[w]hile Henderson litigated a collateral Rule 60(b) action after that point in time, his execution date was `imminent' at the moment the Supreme Court denied certiorari." (Doc. # 111, at 5.) Defendants reason that "if collateral litigation successfully staying an execution date changed the analysis, then this Court would have found that the statute of limitations never began for Cooey, who similarly avoided execution through collateral Rule 60(b) litigation before he resorted to filing the instant § 1983 action." (Doc. # 111, at 5.) Defendants conclude, therefore, that Henderson's two-year statute of limitations ran out on April 25, 2004. Defendants' arguments miss the mark and, for the reasons that follow, this Court finds that Henderson's § 1983 method-of-execution challenge is not time-barred.

The Court rejects Defendants' dubious argument that this Court's language defining when the statute of limitations begins to run on a § 1983 method-of-execution challenge forecloses the possibility that Henderson's collateral Rule 60(b) litigation tolled the statute in his case. Defendants' reason that "if collateral litigation successfully staying an execution date changed the analysis, then this Court would have found that the statute of limitations never began for Cooey, who similarly avoided execution through collateral Rule 60(b) litigation before he resorted to filing the instant § 1983 action." (Doc. # 111, at 5.) Fatal to Defendants' argument is that the fact of Cooey's collateral Rule 60(b) litigation was never before this Court for consideration when it issued its March 28, 2005 Opinion and Order (Doc. # 14) defining when a § 1983 method-of-execution claim accrues. This is the first that the Court has heard anything about Cooey's collateral Rule 60(b) litigation. Therefore, the language from this Court's March 28, 2005 order cannot be construed as expressing an opinion one way or the other about whether, or to what extent, collateral Rule 60(b) litigation may toll the statute of limitations on a § 1983 method-of-execution challenge. Defendants will not be heard to argue otherwise.

This Court's language in its March 28, 2005 decision defining when the statute of limitations begins to run on § 1983 method-of-execution challenges, as well as the reasoning supporting that definition, make it clear that the imminency of a plaintiff's execution is one of two paramount conditions that trigger the statute of limitations. (The other condition is when the plaintiff knows or has reason to know of the facts giving rise to his specific method-of-execution challenge.) The Court attempted, based on the limited facts it had before it at the time, to define when that usually occurs as to individuals under sentence of death, but the United States Supreme Court denying certiorari in the plaintiff's habeas corpus proceeding was but one occurrence that this Court offered that usually signals the imminency of a plaintiff's execution. The Court preceded that example by explaining that "an execution becomes imminent not necessarily when an execution date is set, but when all other legal challenges to the validity of a death sentence come to an end, i.e., when the plaintiff has exhausted all of his state and federal avenues of relief." (Doc. # 14, at 11.) That the Court did not then speculate about all of the various means by which a plaintiff could legitimately challenge the validity of his death sentence, staving off execution so that his execution is not imminent, should not now result in the absurd conclusion that Henderson's execution became imminent when the United States Supreme Court denied certiorari in his habeas corpus appeal in April 2002 and remained so even when, on July 10, 2003, the district court conditionally granted habeas corpus relief that invalidated Henderson's death sentence.

Defendants' argument assumes that, had this Court been aware of Cooey's collateral Rule 60(b) litigation, it would have found that the statute of limitations on Cooey's § 1983 method-of-execution challenge had never began to run. That is not necessarily the case. The Court made no such finding when it first considered the statute of limitations as to Cooey's § 1983 method-of-execution challenge, and the Court need not now say what effect, if any, Cooey's collateral Rule 60(b) litigation might have had on the running of his statute of limitations because the Court still has too few facts before it about that Rule 60(b) litigation.

With respect to Jerome Henderson, however, the Court has sufficient facts before it to say the following. Consistent with this Court's March 28, 2005 Opinion and Order (Doc. # 14), the statute of limitations could have began to run on Henderson's § 1983 method-of-execution challenge no earlier than April 15, 2002. That is when Henderson's execution became imminent by virtue of the United States Supreme Court's decision denying certiorari in his habeas corpus appeal. If Henderson knew or had reason to know of the facts giving rise to his specific method-of-execution challenge by that date, then the limitations period would have started to run.

But even assuming arguendo that both of the foregoing conditions were satisfied as of April 15, 2002, Henderson's claim is still not time-barred. The letter and spirit of this Court's March 28, 2005 Opinion and Order compel the conclusion that the statute of limitations on Henderson's § 1983 claim was equitably tolled on July 10, 2003, when the district court issued its decision conditionally granting habeas corpus relief that invalidated Henderson's death sentence. At that point, Henderson's execution was no longer imminent; it is absurd to suggest otherwise. And at that point, just over one year of Henderson's two-year statute of limitations had run, which means that Henderson was within the statute of limitations when he filed the instant motion to intervene. The appellate mandate in those proceedings just issued in October 2006, and the filings indicate that Henderson is currently preparing to seek review from the United States Supreme Court. Having found that Henderson's § 1983 method-of-execution challenge is not time-barred, the Court rejects Defendants' argument that allowing Henderson to intervene would be futile.

The Court notes the possibility — a dearth of sufficient facts prevents the Court from saying with certainty — that the statute of limitations on Henderson's § 1983 method-of-execution challenge was tolled far earlier when the district court refused to lift its already-issued stay of execution. Both parties reference the fact that the Warden asked the district court to lift its stay of execution and that the district court apparently refused. (Doc. # 111, at 3; Doc. # 117, at 5.) Thus, there may well be a stay of execution that continued until a date unknown to this Court and perhaps still exists. That said, this Court is in no position, based on the limited record before it, to express any opinion as to what effect the district court's action or inaction in this regard had on the tolling of Henderson's statute of limitations. The existing stay order is an alternative ground that this Court need not and does not reach.

B. Permissive Intervention

Having determined that Henderson's § 1983 method-of-execution challenge is not time-barred, the Court turns now to the question of whether intervention is warranted. As it did with respect to John Hicks, Jeffrey Hill, Johnnie Baston, Arthur Tyler, and Jeffrey Lundgren, the Court concludes that permissive intervention is warranted pursuant to Fed.R.Civ.P. 24(b)(2). That rule provides in relevant part:

Upon timely application anyone may be permitted to intervene in an action: . . . (2) when an applicant's claim or defense and the main action have a question of law or fact in common. . . . In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

Fed.R.Civ.P. 24(b)(2).

The Court must first determine whether the application to intervene is timely. In addressing timeliness, the Court must consider:

(1) the point to which the suit has progressed; (2) the purpose for which intervention is sought; (3) the length of time preceding the application during which the proposed intervenor knew or reasonably should have known of his interest in the case; (4) the prejudice to the original parties due to the proposed intervenor's failure, after he or she knew or reasonably should have known of his interest in the case, to apply promptly for intervention; and (5) the existence of unusual circumstances militating against or in favor of intervention.

United States v. Tennessee, 260 F.3d 587, 592 (6th Cir. 2001) (quoting Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir. 1989)).

Pursuant to the reasoning set forth in this Court's March 28, 2005 Opinion and Order (Doc. # 14), the statute of limitations on Henderson's § 1983 claim does not begin to run until his execution becomes imminent ( i.e., when the United States Supreme Court declined to review his habeas corpus case or when the time for seeking United States Supreme Court review expired) and when he knows or has reason to know of the facts giving rise to his claim. It appears from the record that the district court granted Henderson's original petition for a writ of habeas corpus as to his death sentence on August 4, 1999. Henderson v. Collins, 101 F. Supp. 2d 866, 913-918 (S.D. Ohio 1999). After both parties appealed, the Sixth Circuit reversed that decision and reinstated Henderson's capital conviction and death sentence. Henderson v. Collins, 262 F.3d 615 (6th Cir. 2001). The United States Supreme Court denied Henderson's certiorari petition on April 15, 2002. Henderson v. Collins, 535 U.S. 1002 (2002).

It appears that the United States Supreme Court denied Henderson's certiorari petition on April 15, 2002. However, Defendants later assert that Henderson's certiorari petition was denied on April 25, 2002. (Doc. # 111, at 5.) Moreover, Henderson later asserts that his certiorari petition was denied on April 23, 2002. (Doc. # 117, at 3.)

On April 24, 2002, the Warden asked the district judge to lift the stay of execution in Henderson's case. (Doc. # 111, at 3.) Henderson opposed that request and filed a motion for relief from judgment pursuant to Fed.R.Civ.P. 60(b). It appears that substantial litigation transpired in the district court in connection with Henderson's Rule 60(b) motion, including some DNA testing. Initially, the district court issued a decision denying Henderson's Rule 60(b) motion. (Doc. # 117, at 3.) Subsequently, however, on July 10, 2003, the district court issued an order reconsidering its previous dismissal of the Rule 60(b) motion and conditionally issuing a writ of habeas corpus on Henderson's acquittal first jury instruction claim. (Doc. # 117, at 4.) Both parties appealed, ultimately resulting in a decision by the Sixth Circuit on June 9, 2006 reversing the district court's decision to grant relief and essentially reinstating Henderson's capital conviction and death sentence. Henderson filed a pro se petition for rehearing, which was denied on July 26, 2006. Henderson's counsel filed a petition for rehearing and a suggestion for rehearing en banc, which was denied on October 2, 2006. The Sixth Circuit issued its mandate on October 10, 2006. (Doc. # 111, at 4.) According to Henderson's current counsel, a petition for certiorari is presently being prepared. (Doc. # 117, at 4.) Following the State's request for an execution date, on October 23, 2006, the Ohio Supreme Court scheduled Henderson's execution for December 5, 2006. (Doc. # 106-2.)

Henderson, proceeding pro se, first sought to intervene in this action on August 21, 2006. (Doc. # 60.) This Court denied that motion without prejudice due to Henderson's failure to exhaust his administrative remedies as required by the Prison Litigation Reform Act. (Doc. # 100.) Represented by counsel, Henderson filed the instant motion to intervene on October 25, 2006. (Doc. # 104.)

In determining whether Henderson's application is timely, the first factor the Court must consider is the point to which the suit has progressed. United States v. Tennessee, 260 F.3d at 592. It is beyond dispute that this litigation remains in its early stages. On April 13, 2005, this Court issued an order granting Defendants' request for an interlocutory appeal. (Doc. # 21.) This litigation has not even reached the discovery stage. Thus, by the time Henderson filed the instant motion to intervene, this Court had long before stayed the instant litigation, which has not progressed since.

The second factor this Court must consider is the purpose for which intervention is sought. The Court finds that this factor also militates in favor of finding that Henderson's motion to intervene is timely because it is obvious from the record that Henderson has a significant interest in the adjudication of this lawsuit, as well as shared questions of law and fact.

The third factor for this Court to weigh in determining whether the instant application is timely is the length of time preceding the application during which the proposed intervenor knew or reasonably should have known of his interest in the case. Although it could be suggested that Henderson reasonably should have known about the Cooey lawsuit for at least the last two years, the Court does not see how this factor tilts against finding that Henderson's motion is timely. Two years ago, when Cooey first filed this lawsuit, Henderson was still actively litigating a Rule 60(b) motion for relief from judgment — a motion that from July 10, 2003 until the Sixth Circuit's decision resulted in a conditional writ of habeas corpus invalidating Henderson's death sentence. Thus, to extent that Henderson had reason to be aware of Cooey's lawsuit for the last two years, he had no reason to recognize and act upon his own significant interest in the outcome of Cooey's lawsuit until his pursuit of habeas corpus relief was foreclosed, which technically speaking, has not occurred yet. As noted earlier, a certiorari petition stemming from Henderson's Rule 60(b) litigation is not due until December 31, 2006. (Doc. # 117, at 6.)

The fifth and final factor for this Court to weigh in assessing the timeliness of Henderson's motion to intervene is the existence of any unusual circumstances militating against or in favor of intervention. Defendants have not alleged any other unusual factors militating against intervention and none are apparent to the Court.

Having found that Henderson's motion to intervene is timely, the Court turns to the issue of whether Henderson's proffered complaint and the main action have a question of law or fact in common. The Court concludes that they do. At the core of Henderson's complaint is the same method-of-execution challenge that the other plaintiffs assert, and Defendants do not appear to argue otherwise. That said, Defendants advance several reasons for why this Court should not permit Henderson to intervene in this case. First, Defendants reiterate, merely to preserve the arguments, that intervention improperly circumvents class action rules and that the intervenors had other, less intrusive ways of protecting their rights. (Doc. # 111, at 6.) The Court continues to find those arguments unpersuasive for the reasons previously expressed. Defendants further argue that this Court should not permit Henderson to intervene because of his failure to explain how the other parties to this case will not protect his rights through their litigation. (Doc. # 111, at 6-7.) The Court rejects this argument.

Henderson has a significant interest in this case that cannot adequately be protected by the other plaintiffs because of the time-sensitive nature of his claims and the independent schedule that Henderson faces. If there were to be no executions by the specific lethal injection protocol at the heart of this lawsuit until this litigation were resolved, then the Court might accept Defendants' argument that Henderson's rights, as well as the rights of all other similarly-situated inmates, could adequately be protected by Cooey and the other plaintiffs. But it is ridiculous to suggest that Cooey can adequately protect Henderson's rights when Henderson faces an execution date of December 5, 2006, and Cooey faces no execution date at this point. It is this factor that distinguishes the unreported decisions offered by Defendants supporting their argument, i.e., Donald Hall's motion to intervene in Johnston v. Crawford, Case No. 4:04CV1075, pp. 2-3 (E.D. Missouri 2005), and Victor French's motion to intervene in Brown v. Beck, Case No. 5:06-CT-3018, p. 2 (E.D. N.C. 2006). (Doc. # 110, at 8.) That is, it is not apparent from the decisions cited by Defendants in which the Courts denied motions to intervene in a pending § 1983 suit challenging the lethal injection protocol, the point to which those lawsuits had progressed or whether the proposed intervenors faced imminent execution dates such that the existing plaintiffs could not adequately protect the interests of the proposed intervenors. For the foregoing reasons, the Court is persuaded that Henderson's motion to intervene is well taken. The Clerk shall detach the proffered complaint and file it on the docket.

II. Motion for Preliminary Injunction

Henderson also moves for entry of an emergency preliminary injunction preventing Defendants from using their current procedures of execution on him until his § 1983 claims are adjudicated. For the reasons that follow, this Court is constrained to deny his motion.

For the reasons discussed more fully in that opinion and order, this Court is of the view that Henderson, too, is entitled to a preliminary injunction staying his execution. If anything, Henderson's circumstances are even more compelling than Lundgren's situation, given that Henderson's efforts to raise his claims at the earliest possible opportunity cannot be characterized as anything but diligent. Unfortunately for Henderson, the law of this case now appears to preclude this Court from granting his motion for a preliminary injunction to stay his execution.

On October 23, 2006, the Court of Appeals for the Sixth Circuit issued a one-page, summary order vacating Lundgren's stay of execution. The brevity of the Sixth Circuit's order permits this Court with ease to reproduce the order in its entirety:

SUHRHEINRICH, SILER, and GILMAN, Circuit Judges

Defendants-Appellants move this Court to vacate the order of the district court allowing Plaintiff-Appellee/Intervenor Jeffrey Lundgren to intervene as well as granting a preliminary injunction, i.e., a stay of the execution scheduled for October 24, 2006. The matter is currently before this panel after being transferred by the original panel by order dated October 23, 2006.

The panel having considered the motion and the response in opposition thereto, and having found the motion to be well taken, it is

ORDERED that the motion be, and it hereby is, GRANTED, and the stay of execution is hereby vacated.

GILMAN, Circuit Judge, dissenting. I would uphold the stay of execution granted by the district court because I find no abuse of discretion in its evaluation of the factors governing the grant of Lundgren's emergency motion for a preliminary injunction. Furthermore, any harm to the State or to the public interest in extending the stay would be greatly ameliorated by this Court substantially advancing our hearing in pending case No. 05-4057, Cooey v. Taft, which the panel intends to reset sua sponte.

(Doc. # 123, Court of Appeals Order, Case No. 06-4374.) The Sixth Circuit did not issue any subsequent expanded opinion.

From the Sixth Circuit's October 23, 2006 Order, this Court now knows that it erred in granting Lundgren's motion to intervene and/or for a preliminary injunction. This Court just has no idea how it erred.

Two observations regarding the Sixth Circuit's October 23, 2006 Order are necessary. First, the appellate order apparently does not preclude the intervention that this Court found permissible above. Second, the appellate order clearly compels a denial of the injunctive relief sought here but does not enable this Court to explain why a denial is warranted and just.

The Sixth Circuit's Order vacating the preliminary injunction that this Court issued as to Plaintiff Lundgren purported to address "the order of the district court allowing [intervention] . . . as well as granting a preliminary injunction, i.e., a stay of the execution." The decision on its face therefore targeted an appeal not only of this Court's decision granting the preliminary injunction, but also of the Court's decision allowing Lundgren to intervene. Despite this stated purpose, however, the appellate order stated that the panel "found the motion to be well taken" in a single sentence granting relief that was confined only to vacating the preliminary injunction. It is thus unclear whether the two-judge majority intended to find the motion well taken in regard only to the specific action taken (vacating the stay) or in regard to all possible action (overturning both the intervention order and the stay).

This Court assumes that the appellate majority did not vacate the Court's decision allowing Lundgren to intervene. The majority's order provides little to no guidance in this regard, other than arguably the majority's specific and limited action, but the dissent helps define the contours of what the majority actually held. The dissenting judge states that he would uphold the stay and does not mention the intervention issue. If the majority had addressed intervention, the dissent would have also had to address that threshold issue, because if the dissenting judge agreed that intervention was improper, Lundgren would be out of the case, there would be no jurisdiction supporting the stay order, and there would have been no need for the dissent to address the stay. If, however, the majority did not address intervention but instead addressed only the stay, then the dissent is appropriately confined.

Because the dissenting judge was obviously part of the panel's discussion and privy to the intent of the majority, this Court reads the narrow nature of the dissenting opinion to reflect a narrow nature of the majority opinion. The Court is generally notably hesitant to read any appellate dissent as helping define a majority holding — such a situation risks contravening the axiomatic principle that a holding must be read for what it actually says and not by the characterization of a dissenting voice — but this is an unusual case insofar as the appellate majority has offered no reasoning whatsoever to support a decision that at best curiously addresses only one of two issues before it and at worst creates confusion by overturning both intervention and the stay, the former implicitly and the latter expressly.

In other words, this Court is left with the unenviable task of construing a holding that is a conclusion with no expressed rationale. The Court therefore reads the majority's decision to reach no further than its explicit holding — i.e., no stay was warranted — because reading the decision to mean anything more would mean that this Court is simply expansively guessing at what the appellate majority meant to hold. If the majority intended to overturn both intervention and the stay, simply granting the appellants' motion would have done this. But by expressly and specifically stating that the stay of execution was vacated, the majority was apparently narrowing the scope of its granting of the appellant's motion; to conclude otherwise would mean that by "repeating" the vacation of the stay, the majority was engaging in surplusage. The spartan nature of the majority decision suggests that this was not a majority with a proclivity toward such verbosity.

The Sixth Circuit's October 23, 2006 Order therefore targeted only the injunction staying the execution. The clear conclusion of the Order was that this Court erred in issuing a stay. And in the absence of any stated rationale by the appellate majority, this Court cannot now conduct any meaningful discussion as to how Henderson's circumstances fall inside or outside the hidden rationale of the Sixth Circuit majority.

For purposes of appellate review, this Court notes that it would grant injunctive relief in the absence of the controlling appellate order. In determining whether to exercise its discretion to grant a preliminary injunction, a district court must balance the following factors:

(1) whether the movant has a "strong" likelihood of success on the merits; (2) whether the movant would otherwise suffer irreparable injury; (3) whether issuance of a preliminary injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of a preliminary injunction.

McPherson v. Michigan High Sch. Athletic Ass'n, Inc., 119 F.3d 453, 459 (6th Cir. 1997) (en banc) (quoting Sandison v. Michigan High Sch. Athletic Ass'n, Inc., 64 F.3d 1026, 1030 (6th Cir. 1995)). This Court remains as convinced now as it was when it issued its decision as to Lundgren that every factor that this Court is bound to consider in determining whether a preliminary injunction is warranted favors an intervenor such as Henderson.

Given the evidence that Jeffrey Hill first produced and which Henderson, too, has offered, at the very least, Henderson has demonstrated a stronger likelihood of success on the merits than some of the plaintiffs who preceded him, in view of the growing body of evidence calling Ohio's lethal injection protocol increasingly into question. This Court stated unequivocally in its order granting Hill's request for a preliminary injunction that it can not and will not turn a blind eye to the evidence presented in the cases of Brown v. Beck in North Carolina and Morales v. Hickman in California appearing to contradict the opinion of Dr. Mark Dershwitz that virtually all persons given the dose of sodium thiopental prescribed under Ohio's lethal-injection protocol would be rendered unconscious and would stop breathing within one minute. (Doc. # 45, at 6-9.) The evidence that has begun to emerge calling this and other conclusions by Dr. Dershwitz into question also persuades this Court that there is an unacceptable and unnecessary risk that Henderson will be irreparably harmed absent the injunction, i.e., that Henderson could suffer unnecessary and excruciating pain while being executed in violation of his Eighth Amendment right not to be subjected to cruel and unusual punishment.

The Court is not persuaded that issuance of the preliminary injunction would cause substantial harm to the State by comparison. Without diminishing in any way the State's significant interest in enforcing its criminal judgments in a timely fashion, it appears to this Court — even without a fully developed record — that the potential flaws identified in Ohio's lethal injection protocol giving rise to the unacceptable risk of violating the Eighth Amendment's proscription against cruel and unusual punishment are readily fixable. Thus, any delay in carrying out Henderson's execution should and can be minimal. Any argument that the granting of an injunction would harm the State's interest in fulfilling the judgment against Henderson in a timely manner is somewhat disingenuous, considering that but for the State's interlocutory appeal, many if not all of the underlying issues would in all likelihood have been resolved by now. The fact that the state-obtained stay has prevented such resolution qualifies the weight to be afforded Defendants' asserted harm, because such harm is ultimately self-inflicted. Self-inflicted harm that could result from issuance of preliminary injunctive relief should not necessarily preclude an injunction. Cf. Pappan Enter. v. Hardee's Food Sys., Inc., 143 F.3d 800, 806 (3d Cir. 1998) (holding in trademark infringement case that "a party's self-inflicted harm by choosing to stop its own performance under the contract and thus effectively terminating the agreement is outweighed by the immeasurable damage done to the franchiser of the mark"); Midwest Guar. Bank v. Guaranty Bank, 270 F. Supp. 2d 900, 924 (E.D. Mich. 2003) (holding that a party "cannot place itself in harms way, and then later claim that an injunction should not issue because of costs which it must incur in order to remedy its own misconduct").

This Court is mindful of the many cases raising the same or similar challenges in which courts have denied motions for a preliminary injunction. See, e.g., Smith v. Johnson, 440 F.3d 262, 263 (5th Cir. 2006); Bieghler v. Donahue, No. 06-1300, 2006 WL 229027 (7th Cir. Jan. 26, 2006), vacated, 126 S.Ct. 1190 (2006); Vinson v. Johnson, 126 S.Ct. 1908, 2006 WL 1109748 (U.S. Apr. 27, 2006). In those cases, however, the plaintiff's undue delay in bringing his § 1983 action was a factor weighing against him relative to the State's strong interest in enforcing its criminal judgments. For example, in Smith v. Johnson, the Fifth Circuit remarked that "we have made clear that waiting to file such a challenge days before a scheduled execution constitutes unnecessary delay." Smith, 440 F.3d at 263 (citations omitted). In this Court's view, there was no such delay on Henderson's part.

As noted, for the reasons set forth above and discussed more fully in its opinion and order granting Lundgren's motion to intervene and motion for a preliminary injunction, this Court is of the view that Henderson's motion for a preliminary injunction should be granted. But, as also noted, this Court is bound by the Sixth Circuit's October 23, 2006 Order. That being so, the Court is constrained by that decision to deny Henderson's motion for a preliminary injunction to stay his execution. (Doc. # 106.) That the Court cannot tell Henderson substantively why his request for injunctive relief fails is unfortunate.

III. Conclusion

For the foregoing reasons, the Court GRANTS Jerome Henderson's second emergency motion to intervene (Doc. # 104) and DENIES Henderson's motion for a preliminary injunction (Doc. # 106). The Clerk shall detach the proffered complaint attached to Doc. # 104 and file it on the docket.

The Court STRIKES Henderson's pro se motion for a preliminary injunction (Doc. # 121) because he has no right to file such a motion in addition to a motion submitted by counsel. Cf. McMeans v. Brigano, 228 F.3d 674, 684 (6th Cir. 2000).
The Court also GRANTS the motion to supplement (Doc. # 109) and the motion to withdraw as counsel filed in regard to Henderson (Doc. # 118).

IT IS SO ORDERED.

RICHARD COOEY, and JEFFREY D. HILL, Plaintiffs, v. ROBERT TAFT, Governor, REGINALD WILKINSON, Director, and JAMES HAVILAND, Warden, Defendants.

ORDER GRANTING PRELIMINARY INJUNCTION

Jeffrey Hill, a state prisoner sentenced to death by the State of Ohio, is a plaintiff in a civil rights action pending before this Court that challenges multiple facets of the lethal injection protocol used by the State of Ohio. This matter is before the Court on Plaintiff Hill's emergency motion for a preliminary injunction, i.e., a stay of execution. (Doc. # 37.) For the reasons that follow, the Court finds the motion well taken. Thus, it is ORDERED, ADJUDGED, and DECREED that the State of Ohio, and any person acting on its behalf, is hereby STAYED from implementing an order for the execution of Jeffrey D. Hill issued by any court of the State of Ohio until further Order from this Court.

Plaintiff Richard Cooey initiated in this Court a civil rights action challenging multiple facets of Ohio's lethal injection protocol as violating the Eighth Amendment's prohibition against cruel and unusual punishment. These proceedings have been stayed since April 13, 2005, when the Court issued an order granting Defendants' motion for an order certifying an interlocutory appeal to the United States Court of Appeals for the Sixth Circuit concerning the issue of whether Plaintiffs' action is time-barred. (Doc. # 21.) On August 24, 2005, the Sixth Circuit issued an order expanding the scope of the interlocutory appeal to include the issues of whether Plaintiffs' action is barred by res judicata and whether Plaintiffs' action should be construed as a habeas corpus action pursuant to 28 U.S.C. § 2254 instead of a civil rights action pursuant to 42 U.S.C. § 1983. (Doc. # 22.)

On January 19, 2006, this Court issued an order granting Plaintiff Jeffrey Hill permission to intervene. (Doc. # 35.) On April 12, 2006, the Supreme Court of Ohio set an execution date for Plaintiff Hill, i.e., June 15, 2006. (Plaintiff's Emergency Motion for Preliminary Injunction, Doc. # 37, at 1.) Accordingly, Plaintiff Hill filed the instant Emergency Motion for Preliminary Injunction on April 14, 2006. Also before the Court are the Defendants' brief in opposition (Doc. # 39) and Plaintiff's reply memorandum (Doc. # 42).

On April 28, 2006, this Court conducted an informal telephone conference in accordance with S.D. Ohio Civ. R. 65.1. During that conference, the parties agreed to forego a hearing and have this Court resolve the preliminary injunction motion on their briefs.

"The purpose of a preliminary injunction is always to prevent irreparable injury so as to preserve the court's ability to render a meaningful decision on the merits." United Food Commercial Workers Union, Local 1099 v. Southwest Ohio Regional Transit Authority, 163 F.3d 341, 348 (6th Cir. 1998) (quoting Stenberg v. Cheker Oil Co., 573 F.2d 921, 925 (6th Cir. 1978)). The decision of whether to issue a preliminary injunction rests within the discretion of the district court. See, e.g., N.A.A.C.P. v. City of Mansfield, 866 F.2d 162, 166 (6th Cir. 1989). In determining whether to exercise its discretion to grant a preliminary injunction, a district court must balance the following factors:

(1) whether the movant has a "strong" likelihood of success on the merits; (2) whether the movant would otherwise suffer irreparable injury; (3) whether issuance of a preliminary injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of a preliminary injunction.

McPherson v. Michigan High Sch. Athletic Ass'n, Inc., 119 F.3d 453, 459 (6th Cir. 1997) (en banc) (quoting Sandison v. Michigan High Sch. Athletic Ass'n, Inc., 64 F.3d 1026, 1030 (6th Cir. 1995)). The parties should note that "findings of fact and conclusions of law made by a district court in granting a preliminary injunction are not binding at a trial on the merits." United States v. Edward Rose Sons, 384 F.3d. 258, 261 (6th Cir. 2004) (citing University of Texas v. Camenisch, 451 U.S. 390 395 (1981)).

Addressing the stay-of-execution issue in the context of a method-of-execution challenge, the Supreme Court of the United States in Nelson v. Campbell, 124 S.Ct. 2117, 2125-26 (2004), observed that, "the mere fact that an inmate states a cognizable § 1983 claim does not warrant the entry of a stay as a matter of right." The Supreme Court pointed to its decision in Gomez v. United States Dist. Court for Northern Dist. of California, 503 U.S. 653 (1992) ( per curiam), where it left open the question of whether an inmate's claim was cognizable under § 1983, but vacated the stay of execution nonetheless because the inmate "waited until the 11^th hour to file his challenge despite the fact that California's method of execution had been in place for years." Nelson, 124 S.Ct. at 2126 (discussing Gomez, 503 U.S. at 654). The Supreme Court emphasized:

Thus, before granting a stay, a district court must consider not only the likelihood of success on the merits and the relative harms to the parties, but also the extent to which the inmate has delayed unnecessarily in bringing the claim. Given the State's significant interest in enforcing its criminal judgments, see Blodgett, 502 U.S., at 239, 112 S.Ct. 674; McCleskey, 499 U.S., at 491, 111 S.Ct. 1454, there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.

Nelson, 124 S.Ct. at 2126.

In connection with this civil rights action and similar actions that have since been dismissed, this Court has twice considered and denied motions for a preliminary injunction staying the execution of a movant. In the case of Adremy Dennis, the Court was constrained to deny that plaintiff's motion for a preliminary injunction because, given the State's strong interest in enforcing its criminal judgments, along with the plaintiffs' inexcusable delay in pursuing a civil rights action challenging Ohio's lethal injection protocol, "there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay." Dennis v. Taft, 2:04-cv-532, Doc. # 14, at 14 (quoting Nelson v. Campbell, 124 S.Ct. 2117 (2004)). Following the United States Supreme Court's reasoning in Nelson and Gomez, this Court concluded that:

If the instant action cannot be characterized as an 11^th hour challenge, given the fact that Petitioner Dennis was not facing an execution date when he filed his complaint, it can certainly be characterized as a 9^th or 10^th hour challenge, given the fact that he had exhausted all of his other available remedies and the State had requested an execution date to be set.

(Dennis, 2:04-cv-532, Doc. # 14, at 12.)

In the case of John R. Hicks, who was granted permission on November 23, 2005 to intervene in the instant action, the Court observed that:

The situation here is perhaps even more egregious than that in Dennis. Here, although the Ohio Supreme Court set Hicks's execution date on October 5, 2005, Hicks waited until November 23, 2005 to pursue a stay. This exceeds the eleven days separating the establishment of an execution date and the motion for injunctive relief involved in Dennis. In both instances, the movant delayed unnecessarily.

(Doc. # 26, at 4.)

Plaintiff Jeffrey Hill's case is readily distinguishable from those of Dennis and Hicks. First, Plaintiff Hill, when he moved to intervene in the instant action, initiated his civil rights action challenging Ohio's lethal injection protocol in a timely fashion as specifically outlined by this Court in its Opinion and Order of March 28, 2005. (Doc. # 14.) There, the Court concluded that "the statute of limitations on claims raising specific challenges to a method of execution, but otherwise conceding that the execution can be carried out in a constitutional manner if the specific challenges are addressed, begins to run when the execution becomes imminent and the plaintiff knows or has reason to know of the facts giving rise to his specific challenges." (Doc. # 14, at 12.) This Court has reasoned that those two conditions are met when the plaintiff has exhausted all of his state and federal avenues of relief, i.e., when the United States Supreme Court denies certiorari in the plaintiff's habeas corpus proceedings or otherwise issues a decision foreclosing federal habeas corpus relief. (Doc. # 14, at 11.) When Plaintiff Hill filed his emergency motion to intervene on December 11, 2005, he avers, the United States Supreme Court had "recently denied [his] petition for a writ of certiorari and the time for filing the rehearing petition has not yet run." (Hill's Emergency Motion to Intervene, Doc. # 29, at 2.) Thus, unlike Dennis and Hicks, Plaintiff Hill was not within days of his execution. He did not sit on his laurels. He did not wait until the State had set or even requested an execution date. Rather, immediately after the occurrence in his case of the preconditions identified by this Court in its March 28, 2005 for the accrual of his cause of action, Plaintiff Hill moved to intervene in the instant action.

The Court takes note of Crawford v. Taylor, 126 S.Ct. 1192 (2006), a case highlighted by Plaintiff Hill in his reply memorandum in which the Supreme Court of the United States refused to interfere with the entry of a stay of execution in a case challenging the State of Missouri's lethal injection protocol. (Reply Memorandum, Doc. # 42, at 4.) As Plaintiff Hill points out, and as review of the attached docket confirms, the plaintiff had commenced his federal litigation challenging the lethal injection protocol years before his execution date had been set. (Doc. # 42, at 4-5; App. A, at 7-10.) Thus, to the extent that anything can be gleaned from non-action on the part of the Supreme Court of the United States, it would appear that the Court seems poised to let stand an entry of a stay of execution in cases raising lethal-injection challenges wherein the plaintiff had not engaged in undue delay in bringing his challenge.

A second factor distinguishing Plaintiff Hill's case from those of Dennis and Hicks is the mounting evidence calling Ohio's lethal injection protocol, and the same or similar protocols employed by other states, increasingly into question. In Morales v. Hickman, 415 F. Supp. 2d 1037 (N.D. Cal. 2006), the district court took note of "evidence of a kind that was not presented in earlier cases," id. at 1043, purporting to demonstrate that inmates recently executed in California under its lethal-injection protocol may have continued breathing more than a minute after the administration of sodium thiopental, in contravention of the opinion of Dr. Mark Dershwitz that the amount of sodium thiopental prescribed under California's lethal-injection protocol, i.e., 5 mg, would cause an inmate to lose consciousness and stop breathing within one minute. Id. at 1043-44. Although the State subsequently submitted a supplemental affidavit by Dr. Dershwitz opining that the "respirations" observed by witnesses may have been "chest wall movements" and not respirations at all, the district court, while duly considering Dr. Dershwitz's opinion in that regard, concluded that "evidence from eyewitnesses tending to show that many inmates continue to breathe long after they should have ceased to do so cannot simply be disregarded on its face." Id. at 1045.

Less than two months later, in Brown v. Beck, No. 5:06-CT-3018-H, the District Court for the Eastern Division of North Carolina, Western Division, also had the benefit of "evidence of a kind that is different from that presented in the cases previously considered by this and other courts." (Doc. # 37-2, at 8.) Specifically, the district court had before it toxicology data following four recent executions in North Carolina showing post-mortem levels of sodium pentothal contradicting the opinion of Dr. Dershwitz as to the expected concentration that would be present in a man of average size after having been given a dose of 3000 mg of sodium pentothal. (Doc. # 37-2, at 8-9.) As in Morales, the defendants submitted a supplemental affidavit from Dr. Dershwitz offering possible explanations for the post-mortem levels of sodium pentothal. The district court in Brown stated that, "[w]hile Dr. Dershwitz's explanation may be correct, the Court cannot ignore the serious questions raised by this [toxicology] data." (Doc. # 37-2, at 9.) The district court in Brown also had before it affidavits from attorneys present at recent executions who had witnessed the condemned inmates "writhing, convulsing, and gagging when executed." (Doc. # 37-2, at 9.) The district court noted that, according to an affidavit by Dr. Mark J.S. Heath, such witness accounts of writhing and convulsing would be inconsistent with a sufficient dose of sodium pentothal having been successfully delivered to the brain such that the condemned inmate" would not feel pain. (Doc. # 37-2, at 10.)

This Court has no evidence before it of the kind that the district courts in Morales and Brown had before them. The reason is not due to a lack of diligence on the part of the plaintiffs, but because this case has been stayed since April 13, 2005, when this Court granted Defendants' motion for an order to certify an interlocutory appeal. (Doc. # 21.) The parties in this case have also relied, preliminarily, on affidavits by Drs. Mark J.S. Heath and Mark Dershwitz. That being so, this Court would be remiss if it did not take note of the evidence that the district courts in Morales and Brown considered. And that evidence raises grave concerns about whether a condemned inmate would be sufficiently anesthetized under Ohio's lethal-injection protocol prior to and while being executed, especially considering that the dose of sodium thiopental prescribed under Ohio's lethal-injection protocol (2 grams) is less than that prescribed under California's protocol (5 grams) and that prescribed under North Carolina's protocol (3000 mg). Compounding the gravity of the risk that Plaintiff Hill will not be properly anesthetized prior to and while being executed, as the district courts in Morales and Brown noted, is the absence prior to and during the execution process of certified medical personnel capable of ensuring, among other things, that the drugs are properly prepared and delivered, and that the condemned inmate has been rendered unconscious prior to and during the administration of the pancuronium bromide and potassium chloride. In short, the growing body of evidence calling Ohio's lethal injection protocol increasingly into question distinguishes Plaintiff Hill's case from previous cases that this Court has considered.

The defendants have also submitted an affidavit by Dr. Carl Rosow agreeing with various observations by Dr. Dershwitz and disagreeing with several observations by Dr. Mark J.S. Heath. (Doc. # 39-7.)

As the foregoing demonstrates, principles of equity do not militate against Plaintiff Hill regarding undue delay versus the State's substantial interest in enforcing its criminal judgments. Turning to the four factors that must be balanced, McPherson, 119 F.3d at 459, this Court is persuaded that Plaintiff Hill is entitled to a preliminary injunction staying his execution. At the very least, Plaintiff has demonstrated a stronger likelihood of success on the merits than the plaintiffs who preceded him, given the growing body of evidence calling Ohio's lethal injection protocol increasingly into question. This Court can not and will not turn a blind eye to the evidence presented in the cases of Brown v. Beck in North Carolina and Morales v. Hickman in California appearing to contradict the opinion of Dr. Mark Dershwitz that virtually all persons given the dose of sodium thiopental prescribed under Ohio's lethal-injection protocol would be rendered unconscious and would stop breathing within one minute. (Doc. # 39-6, at ¶ 8.) Given the evidence that has begun to emerge calling this and other conclusions by Dr. Dershwitz into question, the Court is persuaded that there is an unacceptable and unnecessary risk that Plaintiff Hill will be irreparably harmed absent the injunction, i.e., that Plaintiff Hill could suffer unnecessary and excruciating pain while being executed in violation of his Eighth Amendment right not to be subjected to cruel and unusual punishment.

The Court is not persuaded that issuance of the preliminary injunction will cause substantial harm to the State by comparison. Without diminishing in any way the State's significant interest in enforcing its criminal judgments in a timely fashion, it appears to this Court — even without a fully developed record — that the potential flaws identified in Ohio's lethal injection protocol giving rise to the unacceptable risk of violating the Eighth Amendment's proscription against cruel and unusual punishment are readily fixable. Thus, any delay in carrying out Plaintiff's execution should and can be minimal. Additionally, in regard to Defendants' argument that the granting of an injunction would harm the State's interest in fulfilling the judgment against Plaintiff Hill in a timely manner, the Court notes that but for the State's interlocutory appeal, many if not all of the underlying issues would in all likelihood have been resolved by now. The fact that the state-obtained stay has prevented such resolution qualifies the weight to be afforded Defendants' asserted harm, because such harm is ultimately self-inflicted. Self-inflicted harm that could result from issuance of preliminary injunctive relief should not necessarily preclude an injunction. Cf. Pappan Enter. v. Hardee's Food Sys., Inc., 143 F.3d 800, 806 (3d Cir. 1998) (holding in trademark infringement case that "a party's self-inflicted harm by choosing to stop its own performance under the contract and thus effectively terminating the agreement is outweighed by the immeasurable damage done to the franchiser of the mark"); Midwest Guar. Bank v. Guaranty Bank, 270 F. Supp. 2d 900, 924 (E.D. Mich. 2003) (holding that a party "cannot place itself in harms way, and then later claim that an injunction should not issue because of costs which it must incur in order to remedy its own misconduct"). Finally, as noted by counsel for Plaintiff Hill during the informal telephone conference, it bears noting in regard to the extent to which issuance of the preliminary injunction would cause substantial harm to others that the victim's family in this case, who are also Plaintiff Hill's family, do not want him to be executed at all.

Finally, this Court is in agreement with Plaintiff Hill that the public interest only is served by enforcing constitutional rights and by the prompt and accurate resolution of disputes concerning those constitutional rights. By comparison, the public interest has never been and could never be served by rushing to judgment at the expense of a condemned inmate's constitutional rights.

This Court is mindful of the many cases raising the same or similar challenges in which motions for a preliminary injunction have been denied. See, e.g., Smith v. Johnson, 440 F.3d 262, 263 (5th Cir. 2006); Bieghler v. Donahue, No. 06-1300, 2006 WL 229027 (7th Cir. Jan. 26, 2006), vacated, 126 S.Ct. 1190 (2006); Vinson v. Johnson, No. 05A971, 2006 WL 1109748 (U.S. Apr. 27, 2006). In those cases, however, the plaintiff's undue delay in bringing his § 1983 action was a factor weighing against him relative to the State's strong interest in enforcing its criminal judgments. For instance, in Smith v. Johnson, the Fifth Circuit remarked, "we have made clear that waiting to file such a challenge days before a scheduled execution constitutes unnecessary delay." 440 F.3d at 263 (citations omitted). Further, in Vinson v. Johnson, it appears that the plaintiff filed his § 1983 action within one month of his scheduled execution. (Doc. # 44-1.) As discussed more fully above, Plaintiff Hill does not, in this Court's view, have that factor weighing against him.

The Court is also mindful that in the cases upon which it has relied in finding that petitioner has demonstrated a stronger likelihood of success on the merits than any plaintiff before him, Morales and Brown, the district courts conditionally denied the plaintiffs' respective motions for a preliminary injunction, choosing instead to fashion remedies under which the States of California and North Carolina, respectively, could carry out the planned executions without violating the plaintiffs' Eighth Amendment rights. Morales, 415 F. Supp. 2d at 1047; Brown, No. 5:06-CT-3018-H, at * 13-15 (Doc. # 37-2). In view of the lack of development of the record in this case, this Court does not feel that it is in a position to avoid the issuance of a preliminary injunction by fashioning a remedy by which Ohio could carry out the execution of Plaintiff Hill within the confines of the Eighth Amendment.

For the foregoing reasons, Plaintiff Hill's motion for an emergency preliminary injunction is GRANTED. (Doc. # 37.) This Court declines to require a security bond. Moltan Co. v. Eagle-Picher Indus., Inc., 55 F.3d 1171, 1176 (6th Cir. 1995) (explaining that whether to require a bond is within the discretion of the court).

Thus, it is ORDERED, ADJUDGED, and DECREED that the State of Ohio, and any person acting on its behalf, is hereby STAYED from implementing an order for the execution of Jeffrey D. Hill issued by any court of the State of Ohio until further Order from this Court.

IT IS SO ORDERED.

OPINION AND ORDER

I. Second Amended Emergency Motion to Intervene

As it did with respect to John Hicks, Jeffrey Hill, Johnnie Baston, and Arthur Tyler, the Court concludes that permissive intervention is warranted pursuant to Fed.R.Civ.P. 24(b)(2). That rule provides in relevant part:

Upon timely application anyone may be permitted to intervene in an action: . . . (2) when an applicant's claim or defense and the main action have a question of law or fact in common. . . . In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

Fed.R.Civ.P. 24(b)(2).

The Court must first determine whether the application to intervene is timely. In addressing timeliness, the Court must consider:

(1) the point to which the suit has progressed; (2) the purpose for which intervention is sought; (3) the length of time preceding the application during which the proposed intervenor knew or reasonably should have known of his interest in the case; (4) the prejudice to the original parties due to the proposed intervenor's failure, after he or she knew or reasonably should have known of his interest in the case, to apply promptly for intervention; and (5) the existence of unusual circumstances militating against or in favor of intervention.

United States v. Tennessee, 260 F.3d 587, 592 (6th Cir. 2001) (quoting Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir. 1989)).

Pursuant to the reasoning set forth in this Court's March 28, 2005 Opinion and Order (Doc. # 14), the statute of limitations on Lundgren's § 1983 did not begin to run until his execution became imminent ( i.e., when the United States Supreme Court declined to review his habeas corpus case or when the time for seeking United States Supreme Court review expired) and when he knew or had reason to know of the facts giving rise to his claim. It appears from the record that the United States Court of Appeals for the Sixth Circuit issued a decision affirming the denial of Lundgren's habeas corpus petition on March 13, 2006, Lundgren v. Mitchell, 440 F.3d 754 (6th Cir. 2006), and that the Sixth Circuit issued its mandate on April 4, 2006 (Doc. # 89, at 3). It does not appear that Lundgren ever filed a petition for a writ of certiorari.

By the time Lundgren's time for seeking review from the Supreme Court had expired in July, this Court had long since stayed the instant action in an April 13, 2005 Order granting an interlocutory appeal. (Doc. # 21.) This litigation therefore remains in its early stages. The parties, for example, had not even reached the discovery deadline when the Court granted an interlocutory appeal and consequent stay. The Court therefore finds no basis for concluding that intervention at this stage will prejudice the original parties to this litigation. Further, the Court finds that there are few unusual circumstances militating for or against intervention beyond those that are subsumed in the foregoing factors.

Although Lundgren could have filed his motion to intervene earlier, it does not now present sufficient prejudice to any other party to warrant a denial of intervention. Under the specific circumstances of this case, which involve an interlocutory appeal and a stay of the proceedings, the Court concludes that Lundgren's delayed filing is nonetheless timely.

Turning to the issue of whether Lundgren's proffered complaint and the main action have a question of law or fact in common, the Court concludes that they do. At the core of Lundgren's complaint is the same method-of-execution challenge that the other plaintiffs allege. However, Lundgren's proffered complaint presents an additional claim that sets him apart from the main action. Specifically, Lundgren avers that he is at even greater risk than the other plaintiffs of experiencing excruciating pain and suffering in violation of his Eighth Amendment right to be free from cruel and unusual punishment due to the fact that he is obese, diabetic, and hypertensive. (Doc.# 85, at 3; Doc. # 85-9 ¶¶ 3, 20.)

Lundgren did not exhaust his administrative remedies as to his additional claim. The grievances that he filed through the prison system pursuant to Ohio Administrative Code § 5120-9-31 included only Lundgren's "general" attack on Ohio's lethal injection protocol. Nowhere in any grievance did Lundgren include his "specific" attack as it relates to his various medical conditions. The Court is not of the view, however, that this requires denial of his motion for the failure to exhaust administrative remedies or that it militates against allowing Lundgren to intervene. The Sixth Circuit has adopted a "partial exhaustion" rule allowing a district court faced with a prisoner civil rights complaint that includes both administratively exhausted and unexhausted claims to review the exhausted claims and dismiss the unexhausted claims. See Spencer v. Bouchard, 449 F.3d 721, 725-26 (6th Cir. 2006) (discussing Hartsfield v. Vidor, 199 F.3d 305 (6th Cir. 1999), and Burton v. Jones, 321 F.3d 569 (6th Cir. 2003)).

Glaringly absent from either of the parties' filings is any mention of the Spencer decision. Defendants rely on the decision of Julian-Bey v. Crowley, 24 Fed. App'x 393, 395 (6th Cir. 2001), to support their argument that Lundgren's failure to exhaust his administrative remedies as to each of his claims renders intervention futile. In addition to their failure to even mention the Spencer decision, Defendants' reliance on an unreported decision is that much more curious, considering that there is a reported decision by the Sixth Circuit that offers arguably better support for their argument. See Jones Bey v. Johnson, 407 F.3d 801, 806 (6th Cir. 2005) (holding that the PLRA requires total exhaustion of administrative remedies). This Court is of the view that the Spencer rationale is correct — i.e., that the Sixth Circuit has a partial exhaustion rule as opposed to a total exhaustion rule — because Spencer simply restates controlling law. See Bell v. Konteh, 450 F.3d 651, 655 n. 5 (6th Cir. 2006) ("As we recently explained, we are bound to follow the partial-exhaustion rule applied in Hartsfield (1999) and reaffirmed in Burton (2003) rather than the contrary total-exhaustion rule endorsed by subsequent panels, e.g., Bey v. Johnson, 407 F.3d 801, 805 (6th Cir. 2005)" (subsequent history omitted)).

This Court is aware of several decisions by district courts rejecting Spencer's recognition of the partial exhaustion rule and enforcing the total exhaustion rule advanced by Jones Bey v. Johnson. See, e.g., Alexander v. Jackson, 440 F. Supp. 2d 682, 685-88 (E.D. Mich. 2006) (rejecting Spencer); McClendon v. Lafler, No. 05-74795, 2006 WL 2792341, at * 1-2 (E.D. Mich. July 31, 2006) (rejecting Spencer); Beedle v. Demasi, No. CIVA 05-70430, 2006 WL 2700753, at *4 (E.D. Mich. Sept. 18, 2006) (noting debate over total exhaustion rule). Having concluded both that Spencer correctly states the binding precedent and that the partial-exhaustion rule subjects the only claim distinguishing Lundgren's proffered complaint from the "core" complaint at the heart of this action to dismissal, the Court rejects Defendants' argument that Lundgren's additional claim renders intervention futile or otherwise militates against allowing Lundgren to intervene.

The Court recognizes both that various Sixth Circuit panels continue to disagree and that the issue is currently before the United States Supreme Court. See Williams v. Overton, 136 Fed. Appx. 859, 2005 U.S. App. Lexis 12277 (6th Cir. June 22, 2005), cert. granted, ___ U.S. ___, 126 S.Ct. 1463 (2006); Jones v. Bock, 135 Fed. Appx. 837, 2005 U.S. App. Lexis 11572 (6th Cir. June 16, 2005), cert. granted, ___ U.S. ___, 126 S.Ct. 1462 (2006).

Given the procedural posture of this stayed litigation, the Court concludes that permitting intervention here will neither unduly delay nor prejudice the adjudication of the rights of the original parties. Rather, permitting intervention here will facilitate the expeditious resolution of the original parties. See Secretary of Dept. of Labor v. King, 775 F.2d 666, 669 (6th Cir. 1985) (affirming allowance of permissive intervention on such grounds). Accordingly, the Court in its discretion hereby GRANTS Lundgren's second amended emergency motion to intervene. (Doc. # 85.) The Clerk shall detach the proffered complaint and file it on the docket.

II. Amended Emergency Motion for Preliminary Injunction

Lundgren also moves for entry of an emergency preliminary injunction preventing Defendants from using their current procedures of execution on him until adjudication of his § 1983 claims.

"The purpose of a preliminary injunction is always to prevent irreparable injury so as to preserve the court's ability to render a meaningful decision on the merits." United Food Commercial Workers Union, Local 1099 v. Southwest Ohio Reg'l Transit Auth., 163 F.3d 341, 348 (6th Cir. 1998) (quoting Stenberg v. Cheker Oil Co., 573 F.2d 921, 925 (6th Cir. 1978)). The decision whether to issue a preliminary injunction rests within the discretion of the district court. See, e.g., N.A.A.C.P. v. City of Mansfield, 866 F.2d 162, 166 (6th Cir. 1989). In determining whether to exercise its discretion to grant a preliminary injunction, a district court must balance the following factors:

(1) whether the movant has a "strong" likelihood of success on the merits; (2) whether the movant would otherwise suffer irreparable injury; (3) whether issuance of a preliminary injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of a preliminary injunction.

Addressing the issue in the context of a method-of-execution challenge, the United States Supreme Court has observed that "the mere fact that an inmate states a cognizable § 1983 claim does not warrant the entry of a stay as a matter of right." Nelson v. Campbell, 541 U.S. 637, 649 (2004). The Supreme Court pointed to its decision in Gomez v. United States District Court for the Northern District of California, 503 U.S. 653 (1992) ( per curiam), where it had left open the question of whether the inmate's claim was cognizable under § 1983, but vacated the stay of execution nonetheless because the inmate had "waited until the 11th hour to file his challenge despite the fact that California's method of execution had been in place for years." Nelson, 541 U.S. at 649 (discussing Gomez, 503 U.S. at 654). The Supreme Court emphasized:

[B]efore granting a stay, a district court must consider not only the likelihood of success on the merits and the relative harms to the parties, but also the extent to which the inmate has delayed unnecessarily in bringing the claim. Given the State's significant interest in enforcing its criminal judgments, see Blodgett, 502 U.S., at 239, 112 S.Ct. 674; McCleskey, 499 U.S., at 491, 111 S.Ct. 1454, there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.

Nelson, 541 U.S. at 649-50.

In connection with this civil rights action and similar actions that have since been dismissed, this Court has twice considered and denied motions seeking to stay the execution of a movant. In the case of Adremy Dennis, the Court was constrained to deny the plaintiff's motion for a preliminary injunction because, given the State's strong interest in enforcing its criminal judgments and Dennis's inexcusable delay in pursuing a civil rights action challenging Ohio's lethal injection protocol, "there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay." ( Dennis v. Taft, 2:04-cv-532, Doc. # 14, at 14 (quoting Nelson v. Campbell, 541 U.S. 637 (2004).) Further, the limited record before the Court at that time included virtually no evidence from which Dennis could demonstrate a likelihood of success on the merits of his § 1983 claim. ( Dennis, 2:04-cv-532, Doc. # 14, at 14.) Following the United States Supreme Court's reasoning in Nelson and Gomez, this Court concluded:

If the instant action cannot be characterized as an 11th hour challenge, given the fact that Petitioner Dennis was not facing an execution date when he filed his complaint, it can certainly be characterized as a 9th or 10th hour challenge, given the fact that he had exhausted all of his other available remedies and the State had requested an execution date to be set.

( Dennis, 2:04-cv-532, Doc. # 14, at 12.) The Sixth Circuit thereafter also denied Dennis's request for a stay of execution. ( Dennis v. Taft, No. 04-4184 (6th Cir. Oct. 7, 2004).)

In the case of John R. Hicks, who obtained permission on November 23, 2005 to intervene in the instant action, the Court observed:

The situation here is perhaps even more egregious than that in Dennis. Here, although the Ohio Supreme Court set Hicks's execution date on October 5, 2005, Hicks waited until November 23, 2005 to pursue a stay. This exceeds the eleven days separating the establishment of an execution date and the motion for injunctive relief involved in Dennis. In both instances, the movant delayed unnecessarily.

(Doc. # 26, at 4.) The Sixth Circuit thereafter also denied Hicks's request for a stay of execution. ( Hicks v. Taft, No. 05-4489 (6th Cir. Dec. 15, 2005).)

Subsequently, the Court had cause to consider a request for a preliminary injunction filed by Plaintiff Jeffrey Hill. Finding that Hill's case was readily distinguishable from those of Dennis and Hicks, the Court granted the request and issued a preliminary injunction staying Hill's execution. First, the Court found that Hill, when he had moved to intervene in the instant action, had already initiated his civil rights action challenging Ohio's lethal injection protocol in a timely fashion as specifically outlined by this Court in its Opinion and Order of March 28, 2005. (Doc. # 14.) Thus, this Court found that, unlike Dennis and Hicks, Plaintiff Hill had not been within days of his execution. He had not sat on his laurels, and he had not waited until the State had set or even requested an execution date. Rather, immediately after the occurrence in his case of the preconditions identified by this Court in its March 28, 2005 Order for the accrual of his cause of action, Hill had moved to intervene in the instant action.

Second, the Court found that the growing body of evidence calling Ohio's lethal injection protocol increasingly into question distinguished Hill's case from previous cases that this Court had considered, and that in light of both that evidence and the fact that this litigation was stayed due to the State's pursuit of an interlocutory appeal, the balance of the four factors set forth in McPherson unquestionably favored Hill's request for a preliminary injunction. Specifically, the Court concluded that given the growing body of evidence calling Ohio's lethal injection protocol increasingly into question, Hill had demonstrated both a stronger likelihood of success on the merits than the plaintiffs who preceded him and an unacceptable and unnecessary risk that he would be irreparably harmed absent the injunction; that the issuance of a preliminary injunction would not cause substantial harm to the State by comparison, because but for the State's interlocutory appeal, many if not all of the underlying issues in this case might have been resolved by now; and that the public interest is served only by enforcing constitutional rights and by the prompt and accurate resolution of disputes concerning those constitutional rights. (Doc. # 45, at 9-10.) The Court incorporates by reference its decision granting Hill's request for a preliminary injunction and attaches the decision for convenience. (Doc. # 45.)

See Doc. # 45, at 6-9 (discussing the decisions of Morales v. Hickman, 415 F. Supp. 2d 1037 (N.D. Cal. 2006), and Brown v. Beck, No. 5:06-CT-3018-H (E.D.N.C. Apr. 7, 2006)).

After careful consideration, this Court concludes that Lundgren is entitled to a preliminary injunction staying his execution. In so holding, the Court does not mean to minimize the curious delay on Lundgren's part in seeking permission to intervene in this action and requesting a preliminary injunction. If that delay were the sole factor informing this Court's decision whether to issue a preliminary injunction, the Court could only conclude that Lundgren's case more closely resembled those of Dennis and Hicks before him and that he was not entitled to a stay. But balanced against his delay in seeking permission to intervene and in requesting a preliminary injunction are the four factors set forth in McPherson. For the reasons discussed more fully in the Court's order granting Hill's request for a preliminary injunction (Doc. # 45, at 9-10), all four of those factors weigh heavily in Lundgren's favor. At the time Dennis and Hicks requested preliminary injunctions, the limited record before this Court did not support a similar finding, especially when balanced against their delay in bringing their claims.

The Sixth Circuit issued its decision affirming the denial of Lundgren's habeas corpus petition on March 13, 2006. Lundgren v. Mitchell, 440 F.3d 754 (6th Cir. 2006). The Sixth Circuit issued its mandate on April 4, 2006 (Doc. # 89, at 3), and it does not appear from the filings before this Court that Lundgren ever sought review by the Supreme Court of the United States. According to Defendants, the State of Ohio filed a motion on August 1, 2006 requesting the Ohio Supreme Court to set an execution date, which motion Lundgren did not oppose. On August 25, 2006, the Ohio Supreme Court issued an order scheduling Lundgren's execution for October 24, 2006. One week later, on September 1, 2006, Lundgren filed his first motion to intervene in this action. (Doc. # 65.)

The Court is not comfortable with this sequence of events. Months passed between the time that Lundgren's execution became imminent and the date that he filed his first motion to intervene. It was only after the Ohio Supreme Court set Lundgren's execution date that he sought to intervene. Still, the Supreme Court's language in Nelson suggests to this Court that it is not mere delay alone on the part of the movant that, under the principles of equity, militates against granting a preliminary injunction. Rather, what is critical is whether that delay prevented the Court from addressing the merits of the movant's claim "without requiring entry of a stay." Nelson, 541 U.S. at 650. In this case, any delay on Lundgren's part was not solely or even primarily the reason that this Court could not address the merits of his claim without requiring the entry of a stay; contributing to, if not primarily responsible for, this Court's inability to reach the merits of Lundgren's claims without requiring the entry of a stay is the State's request for an interlocutory appeal that has resulted in this case being stayed since April 13, 2005. (Doc. # 21.)

Turning to the four factors that must be balanced, McPherson, 119 F.3d at 459, this Court is persuaded that Lundgren is entitled to a preliminary injunction staying his execution. Given the evidence that Hill produced that is now a part of this record, Lundgren has demonstrated a stronger likelihood of success on the merits than the plaintiffs who preceded him. The growing body of evidence calling Ohio's lethal injection protocol increasingly into question compels this conclusion. This Court stated unequivocally in its order granting Hill's request for a preliminary injunction that it can not and will not turn a blind eye to the evidence presented in the cases of Brown v. Beck in North Carolina and Morales v. Hickman in California appearing to contradict the opinion of Dr. Mark Dershwitz that virtually all persons given the dose of sodium thiopental prescribed under Ohio's lethal-injection protocol would be rendered unconscious and would stop breathing within one minute. (Doc. # 45, at 6-9.) The evidence that has begun to emerge calling this and other conclusions by Dr. Dershwitz into question also persuades this Court that there is an unacceptable and unnecessary risk that Lundgren will be irreparably harmed absent the injunction, i.e., that Lundgren could suffer unnecessary and excruciating pain while being executed in violation of his Eighth Amendment right not to be subjected to cruel and unusual punishment.

The Court is not persuaded that issuance of the preliminary injunction will cause substantial harm to the State by comparison. Without diminishing in any way the State's significant interest in enforcing its criminal judgments in a timely fashion, it appears to this Court — even without a fully developed record — that the potential flaws identified in Ohio's lethal injection protocol giving rise to the unacceptable risk of violating the Eighth Amendment's proscription against cruel and unusual punishment are readily fixable. Thus, any delay in carrying out Lundgren's execution should and can be minimal. Any argument that the granting of an injunction would harm the State's interest in fulfilling the judgment against Plaintiff Lundgren in a timely manner is somewhat disingenuous, considering that but for the State's interlocutory appeal, many if not all of the underlying issues would in all likelihood have been resolved by now. The fact that the state-obtained stay has prevented such resolution qualifies the weight to be afforded Defendants' asserted harm because such harm is ultimately self-inflicted. Self-inflicted harm that could result from issuance of preliminary injunctive relief should not necessarily preclude an injunction. Cf. Pappan Enter. v. Hardee's Food Sys., Inc., 143 F.3d 800, 806 (3d Cir. 1998) (holding in trademark infringement case that "a party's self-inflicted harm by choosing to stop its own performance under the contract and thus effectively terminating the agreement is outweighed by the immeasurable damage done to the franchiser of the mark"); Midwest Guar. Bank v. Guaranty Bank, 270 F. Supp. 2d 900, 924 (E.D. Mich. 2003) (holding that a party "cannot place itself in harms way, and then later claim that an injunction should not issue because of costs which it must incur in order to remedy its own misconduct").

This Court is mindful of the many cases raising the same or similar challenges in which courts have denied motions for a preliminary injunction. See, e.g., Smith v. Johnson, 440 F.3d 262, 263 (5th Cir. 2006); Bieghler v. Donahue, No. 06-1300, 2006 WL 229027 (7th Cir. Jan. 26, 2006), vacated, 126 S.Ct. 1190 (2006); Vinson v. Johnson, 126 S.Ct. 1908, 2006 WL 1109748 (U.S. Apr. 27, 2006). In those cases, however, the plaintiff's undue delay in bringing his § 1983 action was a factor weighing against him relative to the State's strong interest in enforcing its criminal judgments. For example, in Smith v. Johnson, the Fifth Circuit remarked that "we have made clear that waiting to file such a challenge days before a scheduled execution constitutes unnecessary delay." Smith, 440 F.3d at 263 (citations omitted). Although Lundgren did not act as quickly as he could have, the delay on his part does not warrant denying a preliminary injunction because the State is largely responsible for delay in the resolution of this case and because of the troubling evidence calling Ohio's lethal injection protocol increasingly into question. In this Court's view, those factors distinguish Lundgren's case from the cases cited above.

The Court emphasizes that today's holding should not be read to mean that there can be no set of circumstances in which principles of equity would fail to overcome egregious untimeliness, thereby precluding issuance of injunctive relief. Rather, today's stay is predicated on a weighing of factors and the specific circumstances before the Court.

For the foregoing reasons, the Court GRANTS Lundgren's amended emergency motion for a preliminary injunction. (Doc. # 84.) Accordingly, it is ORDERED, ADJUDGED, and DECREED that the State of Ohio, and any person acting on its behalf, is hereby STAYED from implementing an order for the execution of Jeffrey Don Lundgren issued by any court of the State of Ohio.

IT IS SO ORDERED.

OPINION AND ORDER

I. Emergency Motion to Intervene

As it did with respect to John Hicks, Jeffrey Hill, Johnnie Baston, Arthur Tyler, Jeffrey Lundgren, Jerome Henderson, and Kenneth Biros, the Court concludes that permissive intervention is warranted pursuant to Fed.R.Civ.P. 24(b)(2). That rule provides in relevant part:

Upon timely application anyone may be permitted to intervene in an action: . . . (2) when an applicant's claim or defense and the main action have a question of law or fact in common. . . . In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

Fed.R.Civ.P. 24(b)(2).

The Court must first determine whether the application to intervene is timely. In addressing timeliness, the Court must consider:

(1) the point to which the suit has progressed; (2) the purpose for which intervention is sought; (3) the length of time preceding the application during which the proposed intervenor knew or reasonably should have known of his interest in the case; (4) the prejudice to the original parties due to the proposed intervenor's failure, after he or she knew or reasonably should have known of his interest in the case, to apply promptly for intervention; and (5) the existence of unusual circumstances militating against or in favor of intervention.

United States v. Tennessee, 260 F.3d 587, 592 (6th Cir. 2001) (quoting Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir. 1989)).

Pursuant to the reasoning set forth in this Court's March 28, 2005 Opinion and Order (Doc. # 14), the statute of limitations on Spirko's § 1983 claim did not begin to run until his execution became imminent ( i.e., when the United States Supreme Court declined to review his habeas corpus case or when the time for seeking United States Supreme Court review expired) and when he knew or had reason to know of the facts giving rise to his claim. The United States District Court for the Northern District of Ohio denied Spirko's habeas corpus petition on July 11, 2000. (Doc. # 119, at 2.) The Court of Appeals for the Sixth Circuit affirmed the denial of habeas corpus relief on May 17, 2004. Spirko v. Mitchell, 368 F.3d 603, 614 (6th Cir. 2004). The United States Supreme Court denied certiorari on March 28, 2005. Additionally, Spirko filed in the district court on April 27, 2005 a motion for relief from judgment pursuant to Fed.R.Civ.P. 60(b), litigation of which concluded on December 22, 2005, when the Sixth Circuit affirmed the district court's decision denying relief. (Doc. # 130, at 3.) Further, the clemency application that Spirko began litigating simultaneously with his Rule 60(b) litigation is still unresolved and has five times resulted in reprieves, all of which the Attorney General requested to allow for the completion of DNA testing. ( Id. at 3-4) Most recently, Governor Taft granted Spirko a reprieve on October 20, 2006, delaying Spirko's execution date until April 17, 2007. ( Id. at 4.) Spirko filed the instant emergency motion to intervene on November 20, 2006.

In determining whether Spirko's application is timely, the first factor the Court must consider is the point to which the suit has progressed. United States v. Tennessee, 260 F.3d at 592. It is beyond dispute that this litigation remains in its early stages. On April 13, 2005, this Court issued an order granting Defendants' request for an interlocutory appeal. (Doc. # 21.) This litigation has not even reached the discovery stage. Thus, by the time Spirko filed the instant motion to intervene, this Court had long before stayed the instant litigation, which has not progressed since.

The second factor this Court must consider is the purpose for which intervention is sought. In this regard, Defendants argue that "this Court should recognize that Spirko is attempting to join this lawsuit for one reason: he knew that it was his best chance at obtaining delay." (Doc. # 128, at 4.) The Court respectfully disagrees and finds that this factor also militates in favor of finding that Spirko's motion to intervene is timely. Defendants' argument, while perhaps plausible, is nonetheless purely speculative and ignores the significant interest that Spirko has in the adjudication of this lawsuit, as well as the shared questions of law and fact that are obvious from the record and require no speculation.

The third factor for this Court to weigh in determining whether the instant application is timely is the length of time preceding the application during which the proposed intervenor knew or reasonably should have known of his interest in the case. Defendants argue that "it is beyond peradventure that Spirko reasonably should have known about the Cooey lawsuit for at least the last two years." (Doc. # 128, at 4.) Although the Court agrees that Spirko reasonably should have known about the Cooey lawsuit for at least the last two years, the Court does not see how this factor tilts against finding that Spirko's motion is timely. Two years ago, when Cooey first filed this lawsuit, Spirko was still actively litigating his habeas corpus action. In fact, litigation on Spirko's Rule 60(b) motion for relief from judgment only concluded on December 22, 2005, and proceedings on his clemency application — proceedings that have five times resulted in reprieves to allow for DNA testing — has yet to conclude. Thus, to extent that Spirko had reason to be aware of Cooey's lawsuit for the last two years, he had no reason to recognize his own significant interest in the outcome of Cooey's lawsuit until his pursuit of habeas corpus relief was foreclosed. That occurred when the United States Supreme Court denied his certiorari petition on March 28, 2005. Spirko filed the instant motion to intervene on November, 2, 2006, well within the statute of limitations that this Court defined in its March 28, 2005 Opinion and Order (Doc. # 14, at 11).

The fourth factor this Court must consider in determining whether the instant application is timely is the prejudice to the original parties due to the proposed intervenor's failure, after he knew or reasonably should have known of his interest in the case, to apply promptly for intervention. In this regard, Defendants take issue with this Court's determination on previous motions to intervene that there has been no prejudice to the State because the proceedings have been stayed. (Doc. # 110, at 4.) Defendants argue that they have been prejudiced "because we have undertaken additional and expedited litigation tasks due to the delay." (Doc. # 128, at 4.) Defendants' argument that they have been prejudiced by the expedited briefing schedule on Spirko's motion to intervene requires this Court to accept the premise that Spirko could and should have filed his motion to intervene earlier, thereby obviating the need for an expedited briefing schedule. This the Court cannot do. For the reasons discussed more fully above, this Court simply is not persuaded that Spirko should have recognized and acted upon his interest in Cooey's litigation any earlier than he did, i.e., when his pursuit of habeas corpus relief was essentially foreclosed. Further, Defendants have not alleged, and it is not otherwise apparent to the Court, what undue or needless burden the original parties will suffer if Spirko is permitted to join this lawsuit now. Given the procedural posture of this stayed litigation, the Court concludes that permitting intervention here will neither unduly delay nor prejudice the adjudication of the rights of the original parties. Rather, permitting intervention here will facilitate the expeditious resolution of the rights of the original parties. See Secretary of Dept. of Labor v. King, 775 F.2d 666, 669 (6th Cir. 1985) (affirming allowance of permissive intervention on such grounds).

The fifth and final factor for this Court to weigh in assessing the timeliness of Spirko's motion to intervene is the existence of any unusual circumstances militating against or in favor of intervention. In this regard, Defendants argue that "because intervention may equal injunction . . . that is an unusual circumstance that should warrant denial of intervention under the fifth factor." (Doc. # 128, at 4.) The Court does not agree with Defendants' view that "intervention may equal injunction." Although the analysis and explanation of the Court's rationale are often the same in regard to every intervenor, this Court has dealt with every motion for a preliminary injunction to stay an execution that has been filed in connection with this proceeding on a case-by-case, fact-specific basis. Further, the Sixth Circuit vacated the preliminary injunction that this Court issued as to Plaintiff-Intervenor Lundgren (Doc. # 102). And, on November 9, 2006, this Court issued an Opinion and Order granting Jerome Henderon's motion to intervene and denying his motion for a preliminary injunction. (Doc. # 124.) It therefore tests the limits of credulity for Defendants to suggest that "intervention may equal injunction." Beyond that, Defendants have not alleged any other unusual factors militating against intervention, and none are apparent to the Court.

Having found that Spirko's motion to intervene is timely, the Court turns to the issue of whether Spirko's proffered complaint and the main action have a question of law or fact in common. The Court concludes that they do. At the core of Spirko's complaint is the same method-of-execution challenge that the other plaintiffs assert, and Defendants do not appear to argue otherwise. That said, Defendants advance several reasons for why this Court should not permit Spirko to intervene in this case. First, Defendants reiterate, merely to preserve the arguments, that intervention improperly circumvents class action rules and that the intervenors had other, less intrusive ways of protecting their rights. (Doc. # 128, at 5.) The Court continues to find those arguments unpersuasive for the reasons previously expressed. Defendants further argue that this Court should not permit Spirko to intervene because of his failure to explain how the other parties to this case will not protect his rights through their litigation. (Doc. # 128, at 5.) The Court rejects this argument.

Spirko has a significant interest in this case that cannot adequately be protected by the other plaintiffs because of the time-sensitive nature of his claims and the independent schedule that Spirko faces. If there were to be no executions by the specific lethal injection protocol at the heart of this lawsuit until this litigation were resolved, then the Court might accept Defendants' argument that Spirko's rights, as well as the rights of all other similarly-situated inmates, could adequately be protected by Cooey and the other plaintiffs. But it is ridiculous to suggest that Cooey can adequately protect Spirko's rights when Spirko might very well face an execution date before Cooey. It is this factor that distinguishes the unreported decisions offered by Defendants supporting their argument, i.e., Donald Hall's motion to intervene in Johnston v. Crawford, Case No. 4:04CV1075, pp. 2-3 (E.D. Missouri 2005). (Doc. # 128, at 5.) That is, it is not apparent from the decision cited by Defendants the point to which that lawsuit had progressed or whether the proposed intervenor faced an imminent execution date such that the existing plaintiffs could not adequately protect the interests of the proposed intervenor. For the foregoing reasons, the Court is persuaded that Spirko's motion to intervene is well taken.

II. Motion for Preliminary Injunction

Spirko also moves for entry of an emergency preliminary injunction preventing Defendants from using their current procedures of execution on him until his § 1983 claims are adjudicated. For the reasons that follow, this Court is constrained to deny his motion.

For the reasons discussed more fully in that opinion and order, this Court is of the view that Spirko, too, is entitled to a preliminary injunction staying his execution. If anything, Spirko's circumstances are even more compelling than Lundgren's situation, given that Spirko's efforts to raise his claims at the earliest possible opportunity cannot be characterized as dilatory. Unfortunately for Spirko, the law of this case now appears to preclude this Court from granting his motion for a preliminary injunction to stay his execution. The Court first explained its rationale in a November 9, 2006 Opinion and Order denying Jerome Henderson's motion for preliminary injunction (Doc. # 124) and repeats that rationale verbatim below.

October 23, 2006, the Court of Appeals for the Sixth Circuit issued a one-page, summary order vacating Lundgren's stay of execution. The brevity of the Sixth Circuit's order permits this Court with ease to reproduce the order in its entirety:

BEFORE: SUHRHEINRICH, SILER, and GILMAN, Circuit Judges

Defendants-Appellants move this Court to vacate the order of the district court allowing Plaintiff-Appellee/Intervenor Jeffrey Lundgren to intervene as well as granting a preliminary injunction, i.e., a stay of the execution scheduled for October 24, 2006. The matter is currently before this panel after being transferred by the original panel by order dated October 23, 2006.

The panel having considered the motion and the response in opposition thereto, and having found the motion to be well taken, it is

ORDERED that the motion be, and it hereby is, GRANTED, and the stay of execution is hereby vacated.

GILMAN, Circuit Judge, dissenting. I would uphold the stay of execution granted by the district court because I find no abuse of discretion in its evaluation of the factors governing the grant of Lundgren's emergency motion for a preliminary injunction. Furthermore, any harm to the State or to the public interest in extending the stay would be greatly ameliorated by this Court substantially advancing our hearing in pending case No. 05-4057, Cooey v. Taft, which the panel intends to reset sua sponte.

(Doc. # 123, Court of Appeals Order, Case No. 06-4374.) The Sixth Circuit did not issue any subsequent expanded opinion.

Two observations regarding the Sixth Circuit's October 23, 2006 Order are necessary. First, the appellate court apparently does not preclude the intervention that this Court found permissive above. Second, the appellate order clearly compels a denial of the injunctive relief sought here but does not enable this Court to explain why a denial is warranted and just.

The Sixth Circuit's Order vacating the preliminary injunction that this Court issued as to Plaintiff Lundgren purported to address "the order of the district court allowing [intervention] . . . as well as granting a preliminary injunction, i.e., a stay of execution." The decision on its face therefore targeted an appeal not only of this Court's decision granting the preliminary injunction, but also of the Court's decision allowing Lundgren to intervene. Despite this stated purpose, however, the appellate order stated that the panel "found the motion to be well taken" in a single sentence granting relief that was confined only to vacating the preliminary injunction. It is thus unclear whether the two-judge majority intended to find the motion well taken in regard only to the specific action taken (vacating the stay) or in regard to all possible action (overturning both the intervention order and the stay).

In other words, this Court is left with the unenviable task of construing a holding that is a conclusion with no expressed rationale. The Court therefore reads the majority's decision to reach no further than its explicit holding — i.e., no stay was warranted — because reading the decision to mean anything more would mean that this Court is simply expansively guessing at what the appellate majority meant to hold. If the majority intended to overturn both intervention and the stay, simply granting the appellants' motion would have done this. But by expressly and specifically stating that the stay of execution was vacated, the majority was apparently narrowing the scope of its granting of the appellants' motion; to conclude otherwise would mean that by "repeating" the vacation of the stay, the majority was engaging in surplusage. The spartan nature of the majority decision suggests that this was not a majority with a proclivity toward such verbosity.

The Sixth Circuit's October 23, 2006 Order therefore targeted only the injunction staying the execution. The clear conclusion of the Order was that this Court erred in issuing a stay. And in the absence of any stated rationale by the appellate majority, this Court cannot now conduct any meaningful discussion as to how Spirko's circumstances fall inside or outside the hidden rationale of the Sixth Circuit majority.

(1) whether the movant has a "strong" likelihood of success on the merits; (2) whether the movant would otherwise suffer irreparable injury; (3) whether issuance of a preliminary injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of a preliminary injunction.

McPherson v. Michigan High Sch. Athletic Ass'n, Inc., 119 F.3d 453, 459 (6th Cir. 1997) (en banc) (quoting Sandison v. Michigan High Sch. Athletic Ass'n, Inc., 64 F.3d 1026, 1030 (6th Cir. 1995)). This Court remains as convinced now as it was when it issued its decision as to Lundgren that every factor that this Court is bound to consider in determining whether a preliminary injunction is warranted favors an intervenor such as Spirko.

Given the evidence that Jeffrey Hill and Jerome Henderson first produced, as well as anecdotal evidence that Spirko included demonstrating problems that occurred during Ohio's execution of inmate Joseph Clark on May 2, 2006, Spirko has demonstrated a stronger likelihood of success on the merits than some of the plaintiffs who preceded him, in view of the growing body of evidence calling Ohio's lethal injection protocol increasingly into question. This Court stated unequivocally in its order granting Hill's request for a preliminary injunction that it can not and will not turn a blind eye to the evidence presented in the cases of Brown v. Beck in North Carolina and Morales v. Hickman in California appearing to contradict the opinion of Dr. Mark Dershwitz that virtually all persons given the dose of sodium thiopental prescribed under Ohio's lethal-injection protocol would be rendered unconscious and would stop breathing within one minute. (Doc. # 45, at 6-9.) The evidence that has begun to emerge calling this and other conclusions by Dr. Dershwitz into question also persuades this Court that there is an unacceptable and unnecessary risk that Spirko will be irreparably harmed absent the injunction, i.e., that Spirko could suffer unnecessary and excruciating pain while being executed in violation of his Eighth Amendment right not to be subjected to cruel and unusual punishment.

The Court is not persuaded that issuance of the preliminary injunction will cause substantial harm to the State by comparison. Without diminishing in any way the State's significant interest in enforcing its criminal judgments in a timely fashion, it appears to this Court — even without a fully developed record — that the potential flaws identified in Ohio's lethal injection protocol giving rise to the unacceptable risk of violating the Eighth Amendment's proscription against cruel and unusual punishment are readily fixable. Thus, any delay in carrying out Spirko's execution should and can be minimal. Any argument that the granting of an injunction would harm the State's interest in fulfilling the judgment against Plaintiff Spirko in a timely manner is somewhat disingenuous, considering that but for the State's interlocutory appeal, many if not all of the underlying issues would in all likelihood have been resolved by now. The fact that the state-obtained stay has prevented such resolution qualifies the weight to be afforded Defendants' asserted harm, because such harm is ultimately self-inflicted. Self-inflicted harm that could result from issuance of preliminary injunctive relief should not necessarily preclude an injunction. Cf. Pappan Enter. v. Hardee's Food Sys., Inc., 143 F.3d 800, 806 (3d Cir. 1998) (holding in trademark infringement case that "a party's self-inflicted harm by choosing to stop its own performance under the contract and thus effectively terminating the agreement is outweighed by the immeasurable damage done to the franchiser of the mark"); Midwest Guar. Bank v. Guaranty Bank, 270 F. Supp. 2d 900, 924 (E.D. Mich. 2003) (holding that a party "cannot place itself in harms way, and then later claim that an injunction should not issue because of costs which it must incur in order to remedy its own misconduct").

This Court is mindful of the many cases raising the same or similar challenges in which courts have denied motions for a preliminary injunction. See, e.g., Smith v. Johnson, 440 F.3d 262, 263 (5th Cir. 2006); Bieghler v. Donahue, No. 06-1300, 2006 WL 229027 (7th Cir. Jan. 26, 2006), vacated, 126 S.Ct. 1190 (2006); Vinson v. Johnson, 126 S.Ct. 1908, 2006 WL 1109748 (U.S. Apr. 27, 2006). In those cases, however, the plaintiff's undue delay in bringing his § 1983 action was a factor weighing against him relative to the State's strong interest in enforcing its criminal judgments. For example, in Smith v. Johnson, the Fifth Circuit remarked that "we have made clear that waiting to file such a challenge days before a scheduled execution constitutes unnecessary delay. Smith, 440 F.3d at 263 (citations omitted). In this Court's view, there has been no such delay on Spirko's part.

As noted, for the reasons set forth above and discussed more fully in its Opinion and Order granting Lundgren's motion to intervene and motion for a preliminary injunction, this Court is of the view that Spirko's motion for a preliminary injunction should be granted. But, as also noted, this Court is bound by the Sixth Circuit's October 23, 2006 Order. That being so, the Court is constrained by that decision to deny Spirko's motion for a preliminary injunction to stay his execution. (Doc. # 120.) That the Court cannot tell Spirko substantively why his request for injunctive relief fails is unfortunate.

III. Conclusion

For the foregoing reasons, the Court GRANTS John Spirko's emergency motion to intervene (Doc. # 119) and DENIES Spirko's motion for a preliminary injunction (Doc. # 120). The Clerk shall detach the proffered complaint attached to Doc. # 119 and file it on the docket.

Cooey v. Taft

Opinion

OPINION AND ORDER

Thus, it is ORDERED, ADJUDGED, and DECREED that the State of Ohio, and any person acting on its behalf, is hereby STAYED from implementing an order for the execution of Clarence Carter issued by any court of the State of Ohio until further Order from this Court.

OPINION AND ORDER

Thus, it is ORDERED, ADJUDGED, and DECREED that the State of Ohio, and any person acting on its behalf, is hereby STAYED from implementing an order for the execution of Kenneth Biros issued by any court of the State of Ohio until further Order from this Court.

OPINION AND ORDER

I. Second Amended Emergency Motion to Intervene

B. Permissive Intervention

II. Motion for Preliminary Injunction

III. Conclusion

ORDER GRANTING PRELIMINARY INJUNCTION

Thus, it is ORDERED, ADJUDGED, and DECREED that the State of Ohio, and any person acting on its behalf, is hereby STAYED from implementing an order for the execution of Jeffrey D. Hill issued by any court of the State of Ohio until further Order from this Court.

OPINION AND ORDER

I. Second Amended Emergency Motion to Intervene

II. Amended Emergency Motion for Preliminary Injunction

IT IS SO ORDERED.

OPINION AND ORDER

I. Emergency Motion to Intervene

II. Motion for Preliminary Injunction

III. Conclusion

IT IS SO ORDERED.

Cooey v. Taft

Cooey v. Taft

Case Details

Citations

Cooey v. Taft

Opinion

OPINION AND ORDER

Thus, it is ORDERED, ADJUDGED, and DECREED that the State of Ohio, and any person acting on its behalf, is hereby STAYED from implementing an order for the execution of Clarence Carter issued by any court of the State of Ohio until further Order from this Court.

OPINION AND ORDER

Thus, it is ORDERED, ADJUDGED, and DECREED that the State of Ohio, and any person acting on its behalf, is hereby STAYED from implementing an order for the execution of Kenneth Biros issued by any court of the State of Ohio until further Order from this Court.

OPINION AND ORDER

I. Second Amended Emergency Motion to Intervene

B. Permissive Intervention

II. Motion for Preliminary Injunction

III. Conclusion

ORDER GRANTING PRELIMINARY INJUNCTION

Thus, it is ORDERED, ADJUDGED, and DECREED that the State of Ohio, and any person acting on its behalf, is hereby STAYED from implementing an order for the execution of Jeffrey D. Hill issued by any court of the State of Ohio until further Order from this Court.

OPINION AND ORDER

I. Second Amended Emergency Motion to Intervene

II. Amended Emergency Motion for Preliminary Injunction

IT IS SO ORDERED.

OPINION AND ORDER

I. Emergency Motion to Intervene

II. Motion for Preliminary Injunction

III. Conclusion

IT IS SO ORDERED.

Cooey v. Taft

Cooey v. Taft

Case Details

CitationsCopy Citation

Citations