Case 2:04-cv-01156-GLF-MRA Document 2-1 Filed 12/08/2004 Page 1 of 26

DEC J ~-.

IN THE UNITED STATES DISTRJCT COURT

FOR C .•~c·~··""

SOUTHERN

DISTRJCT

OF

OHIO,

EASTERN

DIVISION
£UU1l

DEC

-8

ii

RlCHARD COOEY Inmate Number 194-016 Post Office Box 788 Mansfield Correctional Inst Mansfield, Ohio 44091,
Plaintiff,

C2 04 1156
Case Number Judge

vs.
ROBERT TAFT, Governor State of Ohio 77 South High Street, 301h Floor Columbus, Ohio 43215,
and
REGINALD A. WILKINSON, Director Ohio Dept. of Rehabilitation & Correction 1050 Freeway Drive North Columbus, Ohio 43229,
and
JAMES HAVILAND, Warden Southern Ohio Correctional Facility 1724 State Route 728 Lucasville, Ohio 45699,
Defendants.

Plaintiff's Original Complaint for Injunctive and Declaratory Relief, Attorney Fees, and Costs of Suit Pursuant to 42 U.S.C. § 1983

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COMPLAINT I. Nature of Action 1. This action is brought under 42 U.S.C. § 1983 for violations and threatened violations of Plaintiffs right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution, and Plaintiff's rights to be free from violations of his substantive and procedural due process rights under the Fourteenth Amendment to the United States Constitution. Plaintiff seeks equitable, injunctive, and declaratory relief. 2. Plaintiff has exhausted his administrative remedies under O.A.C 5120-9-31, Inmate Grievance Procedure (Ex. 1). On August 4, 2004, Plaintiff filed a grievance with the Inspector of Institutional Services, alleging that the method and means of execution used in Ohio would subject him to a violation of his rights to substantive and procedural due process and to be free from cruel and unusual punishment. (Ex. 2) On August 9, 2004, the Inspector of Institutional Services disposed of Plaintiffs grievance by concluding that it was not grievable under O.A.C. 5120-9-31. (Ex. 3) On August 18, 2004, Plaintiff appealed this decision to the Chief Inspector. (Ex. 4) Per the Chieflnspector's response (Ex. 5), Plaintiff directly grieved these issues to the Chief Inspector. (Ex. 6) On November 9, 2004, the Chief Inspector dismissed the grievance. (Ex. 7). O.A.C. 5120-9-31(1)(3) and (L) state that "[t]he decision of the chief inspector or designee is final." Therefore, Plaintiff has exhausted his administrative remedies. 3. This complaint was originally filed on June 10, 2004, as Case No. 2:04-cv-00532. (Ex. 8, Docket) The complaint was filed two months before the Ohio Supreme Court set an execution date for prior co-plaintiff, Adremy Dennis. As shown on the docket, on August
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24, 2004, Plaintiff Dennis filed a motion for preliminary injunction to stay execution (doc. 9). With the motion for preliminary injunction, Plaintiff filed exhibits demonstrating that Plaintiff took all measures to expedite the proceedings and avoid needless delay, including sending a letter to Defendants' counsel which (A) made reference to Plaintiffs desire to expedite the adjudication of the complaint by reference to Nelson v. Campbell; (B) asked them to acknowledge service of Plaintiffs complaint on their clients; (C) asked them if they would be able to file an Answer by July 26, 2004; (D) asked them to agree to a Rule 26(f) discovery meeting between counsel for the parties by July 26, 2004; (E) asked them if they would agree to comply with Rule 26(a) by July 26, 2004; (f) included a draft of a first set of requests for production of documents to expedite the adjudication of the merits, even though Plaintiff could not yet formally engage in discovery; and (G) asked Defendants' counsel to respond to the letter as soon as possible. (doc. 9) Plaintiff also filed motions to set trial date on or before Oct. 8, 2004 (doc. 16), to compel Defendants to answer the complaint (doc. 17), and to compel discovery (doc. 19). On September 16,2004, the district court issued an opinion concluding that Plaintiff's complaint was properly filed as a § 1983 action, but denying the motion for preliminary injunction to stay the execution. (doc. 14). On September 24, 2004, the district court granted Defendants' motion to dismiss the complaint under Fed. R. Civ. P. 12(b)(6). In its opinion, the district court concluded that Plaintiffs had not exhausted administrative remedies, and dismissed the action without prejudice. (doc. 20).
4. In this action, Plaintiff claims that Defendants' current method of lethal injection can and will, in effect, cause him to be tortured to death. No government within the United States
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can intentionally or negligently use an arbitrary, cruel, and/or unreliable method of execution. 5. Defendants intend to violate Plaintiffs constitutional rights by executing him with drugs that include a paralyzing agent veterinarians will not use for the euthanasia of cats and dogs. This paralyzing drug can and will cast a chemical veil over the excruciatingly painful effects of death by suffocation and heart attack. Defendants' lethal injection protocol includes an unreliable ultrashort-acting anesthetic that can and will leave Plaintiff conscious but trapped in a paralyzed body wracked with the pain of suffocation and a heart attack. Defendants intend to execute Plaintiff with unreliable and arbitrary drugs, administered by inadequately trained personnel, who use inappropriate equipment and methods to cause death by lethal injection. 6. The claims in this complaint are cognizable under 42 U.S.C. § 1983; they need not be brought in a habeas action. This lawsuit is not and should not be treated as being a successor habeas corpus petition. See Nelson v. Campbell, 541 U.S._, 2004 U.S. LEXIS 3680 (2004). Plaintiff is not challenging his underlying capital conviction or death sentence in this present action; nor is he saying that Defendants could never execute him. Plaintiff could be executed if (1) no separate legal challenge overturns his capital conviction or death sentence; (2) he is not granted executive clemency; and (3) Defendants design a constitutionally acceptable method for executing him. 7. Plaintiff seeks a preliminary and permanent injunction preventing Defendants from executing him by the means currently employed for carrying out an execution by lethal injection in the State of Ohio. Plaintiff also seeks an Order declaring that Defendants'
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current methods for conducting an execution by lethal injection violates the Eighth and Fourteenth Amendments to the United States Constitution.
II. Plaintiff 8. Richard Cooey is a United States citizen and a resident of the State of Ohio. He is currently
a death-sentenced inmate in the custody of Defendants, and under the control and supervision of the State of Ohio Department of Rehabilitation and Correction, who have him incarcerated in the Mansfield Correctional Institution in Mansfield, Ohio, under Inmate #194-016. IfPlaintiffCooey's capital conviction and/or death sentence is not overturned in another judicial proceeding or through executive clemency, then Defendants will execute him. Upon information and belief, it is the intention of Defendants, acting in concert with other state officials not named as defendants herein, to use the lethal injection methods described herein to execute Richard Cooey in the death house located on the grounds of the Southern Ohio Correctional Facility, which is operated and controlled by the Defendants.
III. Defendants 9. Defendant Robert Taft is, and at all times relevant was, the Governor of the State of Ohio.
He is the final executive authority in the state, statutorily and constitutionally responsible for the execution of all sentences of death in Ohio and the manner in which those sentences are performed.
10. Defendant Reginald A. Wilkinson is, and at all times relevant was, the Director of the State of Ohio Department of Rehabilitation and Correction (DRC), a department of the State of Ohio created and maintained under O.R.C. § 5120. As such, O.R.C. § 5120.01 charges and authorizes Defendant Wilkinson is to prescribe and direct the promulgation of rules and regulations for the DRC, including the rules and regulations for the conduct of prison 5

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operations and execution procedures. He is sued here in his individual and official capacity for the purpose of obtaining declaratory and injunctive relief. 11. Defendant James Haviland is, and at all times relevant was, Warden of the Southern Ohio Correctional Facility at Lucasville (SOCF), a correctional institution of the DRC that was created and is maintained under O.R.C. § 5120.05, and which is the prison where sentences of death are executed in the State of Ohio. Under O.R.C. § 5120.38, Defendant Haviland, as the Warden ofSOCF, is charged with management ofSOCF and the oversight and conduct of operations there. This includes the oversight and conduct of executions carried out there. He is sued here in his individual and official capacity for the purpose of obtaining declaratory and injunctive relief. 12. Defendants, and each of them at all times relevant hereto, were acting in their respective official capacities with respect to all acts described herein, and were in each instance acting under the color and authority of state law. Upon information and belief, unless preliminarily and permanently enjoined, the Defendants, and each of them, intend to act in their respective official capacities and under the authority of state law by executing Plaintiff by utilizing lethal injection methods that will violate his constitutional rights.
IV. Jurisdiction and Venue 13. P1aintiffbrings this action to enforce and protect rights conferred by the Eighth Amendment
to the United States Constitution, as incorporated by the Fourteenth Amendment to the United States Constitution, and to enforce and protect rights conferred by the Fourteenth Amendment to the United States Constitution. 14. This Court has jurisdiction over this matter under 28 U.S.C. § 1331, in that it arises under the Constitution of the United States; under 28 U.S.C. § 1343(a)(3), in that it is brought to
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redress deprivations, under color of state authority, of rights, privileges, and immunities secured by the United States Constitution; under 28 U.S.C. § 1343(a)(4), in that it seeks to secure equitable relief under an act of Congress, specifically 42 U.S.C. § 1983, which provides a cause of action for the protection of civil rights; under 28 U.S.C. § 220l(a), in that, one purpose of this action is to secure declaratory relief; and under 28 U.S.C. § 2202, in that one purpose of this action is to secure preliminary and permanent injunctive relief. 15. This Court has supplemental jurisdiction over any state statutory claim asserted by Plaintiff under 28 U.S.C. § 1367, in that, the state and federal claims are derived from a common nucleus of operative facts. 16. This Court has venue under 28 U.S.C. § 139l(b)(l) in that all of the Defendants are situated within the State of Ohio and each of them resides within the Southern District of Ohio, and under 28 U.S.C. § 139l(b)(2) in that all of the events described herein have and will transpire (absent judicial relief) within this judicial district. Defendant Taft exercises his final authority over the other Defendants in the seat of Ohio's government, located in Franklin County, Ohio; the lethal injection execution procedures were promulgated by Defendant Wilkinson in Franklin County, Ohio; and Warden Haviland has executed other Ohio imnates and intends to execute Plaintiff in Scioto County, Ohio, by the method of lethal injection described herein.
V. Facts Common to All Claims and Relief Sought 17. Plaintiff incorporates by reference all facts and allegations described throughout this
complaint as if fully re-written herein. 18. If Plaintiff's capital conviction and/or death sentence are not overturned in another judicial
proceeding or through executive clemency, then Defendants will execute Plaintiff. 7

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19. Defendants intend to execute Plaintiff by employing the same means and methods oflethal injection as have been used since Ohio resumed executions in 1999. As of 2001, Ohio's sole means of execution has been lethal injection.
20. According to a letter written by Defendant Haviland dated April 19, 2002 (Ex. 9), and two letters written by Vince Lagana, one dated May 30, 2002 (Ex. 1OA), the other dated January 30, 2004 (Ex. 1OB), a staff attorney for the DRC, Defendants have executed others and, upon information and belief, Defendants intend to execute Plaintiff by the following means. Three drngs will be administered: two grams of thiopental sodium in normal saline concentration; one hundred milligrams of pancuronium bromide ill normal saline concentration; and 100 milliequivalents of potassium chloride ill normal saline concentration. At least the following equipment will be utilized: Angiocath Abbocath-T; primary IV Set No. 1820 (70 inch); and 0.9% sodium chloride, 1000 mi.
21. According to the letter dated May 30, 2002 authored by attorney Lagana (Ex. lOA), Defendants contend that they do not have to release all information descriptive of the lethal injection procedures, including but not limited to information regarding any other equipment used; the personnel involved in the execution procedures; the education, training, expertise, and experience of the personnel involved; or any other details surrounding this procedure.
22. Upon information and belief, neither Defendants nor their agents have publicly disclosed all material and relevant details surrounding the process by which Defendants chose the method of lethal injection they use; nor have Defendants or their agents publicly disclosed all material and relevant details pertaining to the personnel involved in the lethal injection execution procedure, including but not limited to any education, credentials, training,
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expertise, or other factors that qualify or disqualify them from being involved in Ohio's lethal injection execution procedures. 23. Upon information and belief, Defendants and/or their agents simply copied lethal injection procedures from another state or other states without investing meaningful and independent efforts designed to ensure that Ohio's lethal injection execution procedures comply with contemporary medical standards and long-standing constitutional standards that forbid the infliction of excruciating, cruel, and unusual pain and punishment. 24. Upon information and belief, Defendants' intended means of executing Plaintiff are inadequate, unreliable, and arbitrary; and Defendants' lethal injection execution procedures will cause Plaintiff to suffer excruciating pain and cruel and unusual punishment. Expert Opinion on Ohio's Lethal Injection Drugs 25. According to the attached affidavit of Mark J.S. Heath (Ex. II), a medical doctor board certified in anesthesiology, Defendants' lethal injection execution procedure will, upon information and belief, violate Plaintiffs constitutional rights. Dr. Heath's affidavit was prepared for previous litigation wherein two Ohio death row inmates (Lewis Williams and John Glenn Roe) filed a complaint similar to the instant complaint to challenge the constitutionality of Ohio's execution procedures. That earlier lawsuit pre-dated the United States Supreme Court's decision in Nelson v. Campbell (decided May 24, 2004). As a result, the court treated that lawsuit as a successor habeas petition and dismissed it; and Defendants executed Williams and Roe. Upon information and belief, Dr. Heath's position as set forth in his attached affidavit remains substantially the same; and he or a similarly qualified expert can and will provide testimony in support of the instant lawsuit by
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providing expert testimony to show that Defendants' execution procedures violate Plaintiffs
constitutional rights for reasons that include but are not limited to the following:
A) The letters by Warden Haviland and attorney Lagana state that as part of its protocol for lethal injection Ohio uses the drugs sodium thiopental (also know as "thiopental sodium" and "pentothal"), pancuronium bromide (also know as "pancuronium" and "Pavulon"), and potassium chloride (also known as "KCI"). Heath Affidavit ~ 6.
B) A major concern about the protocol relates to the use of the drug pancuronium bromide. Pancuronium paralyzes all voluntary muscles, but does not affect sensation, consciousness, cognition, or the ability to feel pain and suffocation. If the thiopental and potassium are to be given in doses sufficient to cause death, then it is my opinion held to a reasonable degree of medical certainty that there would be no rational or medically justifiable place in the protocol for pancuronium. Heath Affidavit~ 8.
C) If thiopental is not properly administered in a dose sufficient to cause death or at least the loss of consciousness for the duration of the execution procedure, then it is my opinion held to a reasonable degree of medical certainty that the use of pancuronium places the condemned inmate at risk for consciously experiencing paralysis, suffocation, and the excruciating pain of the intravenous injection of high dose potassium chloride. Heath Affidavit~ 9.
D) Based on the information available to me, it is my opinion held to a reasonable degree of medical certainty that Ohio's lethal injection protocol creates an unacceptable risk that the inmate will not be anesthetized to the point of being unconscious and unaware of pain for the duration of the execution procedure. If the inmate is not frrst successfully anesthetized, then it is my opinion to a reasonable degree of medical certainty that the pancuronium will paralyze all voluntary muscles and mask external, physical indications of the excruciating pain being experienced by the inmate during the process of suffocating (caused by the pancuronium) and having a cardiac arrest (caused by the potassium chloride). Heath Affidavit~ 10.
E) If administered alone, a lethal dose of pancuronium would not immediately cause a condemned inmate to lose consciousness. It would totally immobilize the inmate by paralyzing all voluntary muscles and the diaphragm, causing the inmate to suffocate to death while experiencing an intense, conscious desire to inhale. Ultimately, consciousness would be lost, but it would not be lost as an immediate and direct result of the pancuronium. Rather, the loss of consciousness would be due to suffocation, and would be preceded by the torment and agony caused by suffocation. Heath Affidavit ~ 11.
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F) It is my understanding that Ohio's execution protocol requires the presence of media witnesses to the execution, and permits the presence of witnesses chosen by the inmate and chosen by the victim's surviving family members. It is my opinion based on a reasonable degree of medical certainty that the use of pancuronium effectively nullifies the ability of witnesses to discern whether or not the condenmed prisoner is experiencing a peaceful or agonizing death. Regardless of the experience of the condenmed prisoner, whether he or she is deeply unconscious or experiencing the excruciation of suffocation, paralysis, and potassium injection, he or she will appear to witnesses to be serene and peaceful due to the relaxation and immobilization of the facial and other skeletal muscles. Heath Affidavit~ 13. G) Based on my research into issues related to lethal execution, I know that there was a time when pancuronium was an acceptable drug for use by veterinarians in the euthanasia of household pets such as dogs and cats; but that the use of pancuronium is now prohibited by many veterinary guidelines in this and other countries for precisely the reasons outlined above. Veterinary standards forbid creating the risk that household pets would die while pancuronium masks the type of excruciating pain human beings are exposed to in Ohio's execution protocol. The use of pancuronium fails to comport with the evolving "standard of decency" regarding the ending of life in household pets. In my medical opinion, based on a reasonable degree of medical certainty, the use of pancuronium in the lethal injection protocol for executing human beings violates standards of decency designed to prevent the infliction of excruciating pain and suffering on human beings. Heath Affidavit~ 14. H) Another major concern I have based on what I know about Ohio's lethal injection protocol relates to the use of sodium thiopental. Sodium thiopental is an ultrashort-acting barbiturate with a very short shelf life in liquid form. Thiopental is distributed in powder form to increase its shelf life; it must be mixed into a liquid solution by trained personal before it can be injected. Heath Affidavit~ 15. I) When anesthesiologists use sodium thiopental, we do so for the purposes of temporarily anesthetizing patients for sufficient time to intubate the trachea and institute mechanical support of ventilation and respiration. Once this has been achieved, additional drugs are administered to maintain a "surgical depth" or "surgical plane" of anesthesia (i.e., a level of anesthesia deep enough to ensure that a surgical patient feels no pain and is unconscious for the duration of the surgical procedure). The medical utility of thiopental derives from its ultrashortacting properties: if unanticipated obstacles hinder or prevent successful intubation, patients will quickly regain consciousness and will resume ventilation and respiration on their own. Heath Affidavit~ 16. J) The benefits of thiopental in the operating room engender serious risks in the execution chamber. Based on the information I have available to me
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concerning Ohio's execution protocol, a two (2) gram dose of sodium thiopental is apparently administered in a single injection from a single syringe. By contrast, based on my research and the research of others into the procedures for executing human beings by means of lethal injection, the original design of the lethal injection protocol called for the continuous intravenous administration of an ultrashort-acting barbiturate. Based on my research and the research of others, the central elements of the lethal-injection procedure used in Ohio is similar to the one adopted many years ago in Oklahoma (which, it appears, many states used as a model without substantive independent research). Oklahoma requires the "continuous intravenous administration of an ultrashort-acting barbiturate" (Oklahoma Statutes, Title 22 Criminal Procedure, Chapter 17 part 1014 A). It does not appear that Ohio's protocol includes this "continuous" requirement. The use of a continuous administration of the ultrashort-acting barbiturate is essential to ensure continued and sustained unconsciousness during the administration of pancuronium and potassium chloride. It is my opinion based on a reasonable degree of medical certainty that the failure to require a continuous infusion of thiopental places the condemned inmate at a needless and significant risk for the conscious experience of paralysis during the excruciating pain of both suffocation and the intravenous injection of potassium chloride. Heath Affidavit ~ 17.
K) Based on my research into lethal injection, the dose of pentothal described in the Ohio protocol, 2 grams, is considerably lower than the doses described in the protocols of many states and the Federal Government. It is my opinion based on a reasonable degree of medical certainty that Ohio's relatively low dose of thiopental amplifies the concern relating to the single injection (as opposed to continuous infusion) of this ultrashort-acting barbiturate, thereby further elevating the risk that the condemned person will suffer excruciating pain masked by the pancuronium. Heath Affidavit~ 18.
L) Above and beyond my concerns stated above about the drugs used in Ohio, the details of Ohio's lethal injection protocol that I have been made aware of do not account for procedures designed to ensure the proper preparation of the drugs used. I have not seen details regarding the credentials, certification, experience, or proficiency of the persounel who will be responsible for the mixing of the thiopental from powder form, or for the drawing up of the drugs into the syringes. Preparation of drugs, particularly for intravenous use, is a technical task requiring significant training in pharmaceutical concepts and calculations. It is my opinion based on a reasonable degree of medical certainty, and based on my review of lethal execution procedures in states that have disclosed more detailed information that what I have seen about Ohio's procedures, that there exist many risks associated with drug preparation that, if not properly accounted for, further elevate the risk that an inmate will consciously experience excruciating pain during the lethal injection procedures. Heath Affidavit~ 20.
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M) The information available to me provides inadequate detail regarding the training, credentials, certification, experience, or proficiency of any prison employee, nurse or paramedic who performs the execution procedure. The absence of such detail raises critical questions about the degree to which condemned inmates risk suffering excruciating pain during the lethal injection procedure. It is my opinion based on a reasonable degree of medical certainty that the correct and safe management of intravenous drug and fluid administration requires a significant level of professional acumen, and can not be adequately performed by personnel lacking the requisite training and experience. The great majority of nurses are not trained in the use of ultrashort-acting barbiturates; indeed, this class of drugs is essentially only used by nurses who have significant experience in intensive care units and as nurse anesthetists. Very few paramedics are trained or experienced in the use of ultrashort-acting barbiturates. Based on my medical training and experience, and based upon my research of lethal injection procedures and practices, inadequacies in these areas elevate the risk that the lethal injection procedure will cause the condenmed to suffer excruciating pain during the execution process. Heath Affidavit~ 22.
N) Based on my research into methods of lethal injection used by various states and the federal government, and based on my training and experience as a medical doctor specializing in anesthesiology, it is my opinion based on a reasonable degree of medical certainty that, given the apparent absence of a central role for a properly trained medical or veterinary professional in Ohio's execution procedure, it can and should be presumed that the lethal injection procedure Ohio employs creates medically unacceptable risks of infliction excruciating pain and suffering on inmates during the lethal injection procedure. Heath Affidavit ~ 26.
Firsthand Account of Adverse Effects of Drug Failure
26. Dr. Heath's opinions and observations are corroborated by the experience of persons like
eye-surgery patient Carol Weihrer. During Ms. Weihrer's surgery, the sedative she received
was ineffectual, leaving Ms. Weihrer conscious during her surgery. Due to the
administration of a neuromuscular blocking agent like pancuronium bromide, however, she
was unable to tell her doctors she was awake and in terrible pain: "I therefore experienced
what has come to be known as Anesthesia Awareness, in which I was able to think lucidly,
hear, perceive and feel everything that was going on during the surgery, but I was unable to
move. It burnt like the fires of hell. It was the most terrifying, torturous experience you can
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imagine. The experience was worse than death." (Ex. 12) The paralytic agent made Ms. Weihrer appear sedated even though she was experiencing intense pain as the doctors removed her eyeball. The combination of the kinds of chemicals Defendants use during Ohio's lethal injection procedures resulted in tills horrifYing experience. 27. Defendants cannot rule out the possibility that the thiopental sodium (the short-acting sedative, which is the first drug administered during the lethal injection procedure) will fail to adequately sedate Plaintiff. 28. Defendants' lethal injection protocol fails to require that a person with adequate medical training be present to witness the execution, to employ the medical monitoring equipment necessary to detect failures in the procedure, and to take appropriate steps if and when it becomes evident that the condemned imnate is suffering excruciating pain. 29. Defendants' lethal injection protocol does not include nor require the use of any medical equipment designed to monitor the condemned person's heart beat, pulse, or brain waves during the execution (i.e., from the point at which the condemned person is strapped to the execution table in the execution chamber until death is pronounced). Statements by Dr. Mark Dershwitz 30. On September 16, 2004, a New York Times article quoted Dr. Mark Dershwitz, a professor of anesthesiology at the Unversity of Massachusetts, expressing concern about the efficacy of similar if not identical lethal injection protocols in other states where post-execution blood tests showed much lower levels of the anesthetic than Dr. Dershwitz says is necessary to ensure sedation. Adam Liptak, On Death Row, A Battle Over the Fatal Cocktail, The New York Times (Sept. 16, 2004) (Ex. 13). Dr. Dershwitz found that the levels of barbiturate found in three blood samples from executed Kentucky inmate Edward Harper's
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body were potentially troubling. Levels varied from 3 to 6.5 milligrams, when they should be much higher than 7 (the level at which about 50 percent of people are conscious and 50 percent are unconscious), according to Dr. Dershwitz. Executions in South Carolina and North Carolina also caused concern. Under Dr. Dershwitz's standards, lawyers for Kentucky inmates argue, there was a 50 percent or greater chance that eight of the condemned men were conscious throughout their executions. In one of the cases, the likelihood was 90 percent. In four, it was I00 percent. Improper Chemical Veil 31. Upon information and belief, Defendants have no medically justified reason for using pancuronmm (or any other neuromuscular blocking agent) during the lethal injection procedures. 32. Upon information and belief, using pancuronium or any other neuromuscular blocking agent in the lethal injection protocol serves no purpose other than to place Plaintiff into a state of "chemical entombment" while he consciously experiences suffocation, and the pain of potassium chloride and cardiac arrest. 33. Upon information and belief, Defendants intend to use pancuromum or any other neuromuscular blocking agent for the sole but unconstitutional purpose of wrapping Plaintiff in a chemical veil to hide the muscular convulsions otherwise evident in human beings fighting suffocation and experiencing cardiac arrest. 34. Upon information and belief, Defendants can offer no rational, non-arbitrary justification for using pancuronium. At best, Defendants' use of this drug creates unconstitutional risks in service of the unjustifiable purpose offered by Georgia Medical Examiner Dr. Sperry, who said, when testifying about a similar lethal injection method, that a neuromuscular blocking
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agent is used "to paralyze ali the muscles such that those outwardly aesthetically unpleasant things are not seen and do not occur." State v. Michael Wavne Nance, Gwinnett County Superior Court, Indictment No. 95-B-2461-4, Tr. 39-40, July 30, 2002. Dr. Sperry may have meant that, even when properly sedated, a condemned person's body may convulse while dying during an execution by lethal injection. And, these convulsions would be "aesthetically unpleasant" for executioners and witnesses. This is not a constitutionally valid purpose. 35. Once paralyzed, neither the Defendants nor the witnesses could tell if the sedative failed, leaving Plaintiff in horrific but undetectable pain. Witnesses viewing the lethal injection procedure and the general public will never realize the cruel fraud perpetrated upon them: instead of witnessing an inmate quiet and motionless, euphemistically thought of as being "put to sleep," they are in fact witnessing the chemical cover-up of an act of excruciating torture. 36. Upon information and belief, Defendants fail to include in their execution methods readily available medical equipment which, if used by properly trained personnel, would alert Defendants and their executioner agents to the fact that the sedative failed but the paralytic agent took effect, thus leaving Plaintiff conscious but experiencing extreme pain as would be manifest by bodily functions monitored by the medical equipment. Defendants' methods of execution violate Plaintiff's constitutional rights by reason of the failure to put in place procedures for the use of medical monitoring equipment and other such necessary procedures and properly trained execution personnel to respond appropriately to the information revealed by the medical equipment. Inadequate Training of Execution Personnel
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37. Upon information and belief, Defendants' lethal injection protocol fails to provide a person or persons with adequate medical training to witness the execution and stand ready to take appropriate steps if and when it becomes evident that the condemned inmate is suffering excruciating pain, and/or the drugs are not being properly delivered into the condemned inmate's body, and/or the drugs are not having their intended effect.
38. Upon information and belief, Defendants' failure to provide rational, reliable directions or standards for the requisite training, education, and expertise of the personnel who carry out executions by lethal injection in Ohio leads to the conclusion that Defendants' execution methods violates Plaintiff's constitutional rights.
39. Upon information and belief, Defendants' lethal injection execution procedures fail to address all factors necessary to ensure compliance with constitutional requirements, including but not limited to the following factors. If some or all of these factors have been addressed, then Defendants have violated Plaintiff's constitutional rights by failure to disclose them: A) the minimum qualifications, expertise, and training required for the different personnel performing the tasks involved in the lethal injection procedure after the catheter is inserted; B) the methods for obtaining, storing, mixing, and appropriately labeling the drugs, the minimum qualifications and expertise required for the person who will be determining the concentration and dosage of each drug to give, and the criteria that shall be used in exercising this discretion; C) the manner in which the IV tubing, three-way valve, saline solution, and other apparatus shall be modified or fixed in the event it is malfunctioning during the execution process, the minimum qualifications and expertise required of the person who shall have the discretion to decide to attempt such action, and the criteria that shall be used in exercising this discretion;
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D) the manner in which a heart monitoring system shall be installed and utilized to ensure that the inmate is deeply sedated while dying, and the qualifications and expertise required for the person who operates this equipment; E) the manner in which the IV catheters shall be inserted into the condenmed prisoner, the minimum qualifications and expertise required for the person who is given the responsibility and discretion to decide when efforts at inserting the IV catheters should be abandoned in favor of some other constitutionally acceptable procedure, and the manner in which the condition of the condenmed prisoner will be monitored to confirm that proceeding to the next procedure would not inflict severe and unnecessary pain and suffering on the condenmed prisoner; F) the minimum qualifications and expertise required of the person who is given the responsibility and discretion to order the staff to divert from the established protocols if necessary to avoid inflicting severe and unnecessary pain and suffering on the condemned prisoner, and the criteria that shall be used in exercising this discretion; and G) the minimum qualifications and expertise required of the person who is given the responsibility and discretion to ensure that appropriate procedures are followed in response to unanticipated problems or events arising during the lethal injection procedure, and the criteria that shall be used in exercising this discretion.
Veterinarians Cannot Euthanize House Pets with the Drugs Defendants Use to Execute Human Beings 40. Defendants intend to execute Plaintiff by using drugs veterinarians cannot use during the
euthanasia of house pets. Specifically, using a paralyzing, neuromuscular blocking agent violates veterinarians' ethical standards. 41. Using paralyzing agents violates veterinarians' ethical standards. The leading professional association of veterinarians prohibits the use of paralyzing agents during the euthanasia of house pets. The American Veterinarian Medical Association's (AVMA) year 2000 Report on Euthanasia clearly declares that " [a] combination of pentobarbital [an anesthetic in the same category of drugs as thiopental] with a neuro-muscular blocking agent [like
18

Case 2:04-cv-01156-GLF-MRA Document 2-1 Filed 12/08/2004 Page 19 of 26
pancuronium] is not an acceptable euthanasia agent." (Ex. 14) It is not acceptable because the paralytic agent may mask the failure of the other drugs, resulting in a painful death. 42. Since 1981, many states have passed laws governing the euthanasia of pets that preclude the use of a sedative in conjunction with a neuromuscular blocking agent. Texas, Tex. Health & Safety Code, § 821.052(a); Florida, Fla. Stat. §§ 828.058 and 828.065 (enacted in 1984); Georgia, Ga. Code Ann. § 4-11-5.1 (enacted in 1990); Maine, Me. Rev. Stat. Ann., Tit. 17, § 1044 (enacted in 1987); Maryland, Md. Code Ann., Criminal Law, § 10-611 (enacted in 2002); Massachusetts, Mass. Gen. Laws § 140: ISlA (enacted in 1985); New Jersey, N.J.S.A. 4:22-19.3 (enacted in 1987); New York, N.Y.Agric. & Mkts § 374 (enacted in 1987); Oklahoma, Okla. Stat., Tit. 4, § 501 (enacted in 1981); Tennessee, Tenn.Code Ann.§ 44-17-303 (enacted in 2001). Other states have implicitly banned such practices. See Illinois, 510 ll1. Comp. Stat., ch. 70, § 2.09; Kansas, Kan. Stat. Ann. § 47-1718(a); Louisiana, La. Rev. Stat. Ann. § 3:2465; Missouri, 2 CSR 30-9.020(F)(5); Rhode Island, R.I. Gen. Laws § 4-1-34, Connecticut, Conn. Gen.Stat. § 22-344a; Delaware, Del.Code Ann., Tit. 3, § 8001; Kentucky, Ky.Rev.Stat. Ann. § 321.181(17) and 201 KAR 16:090, § 5(1); South Carolina, S.C.Code Ann.§ 47-3-420. (See Ex. 15 (chart outlining statutes)) 43. These statutory declarations, which embody societal values for the euthanasia of house pets, underscore the inhumanity of methods by which Defendants intend to execute Plaintiff. Euthanasia techniques banned as cruel to dogs and cats by definition violate standards of decency regarding the execution of human beings. The discordance between standards for pet euthanasia and Ohio's lethal execution procedures proves that Defendants' lethal injection procedures fall far outside contemporary standards of decency. Compare Atkins v. Virginia, 536 U.S. 304,315 (2002) ("It is not so much the number of these States [that have
19

Case 2:04-cv-01156-GLF-MRA Document 2-1 Filed 12/08/2004 Page 20 of 26
banned executing those with retardationJ that IS significant, but the consistency of the
direction of change."). Plaintiff's Counsel Should Have The Right To Witness The Execution 44. Plaintiff has a right to select three persons who are not confined in any state institution to
witness their executions; plus they can ask the clergy-person in attendance to witness their executions. O.R.C. § 2949.25(A)(5). 45. Defendants' execution procedures do not provide an automatic right for counsel for Plaintiff to be a witness to those parts of the execution process that are seen by those who are witnesses to an execution. Instead, Defendants' execution procedures permit counsel for Plaintiff to be a witness to the execution only if Plaintiff nominates counsel to be one of the three witnesses allotted by O.R.C. § 2949.25(A)(5), and by Defendants' customs and practices governing who actually witnesses an execution. 46. Defendants execution procedures and O.R.C. § 2949.25(A)(2) permit the sheriff of the county where a condenmed person was tried and convicted to be a witness to an execution. Defendants' practices, routines, and formal and informal procedures and customs governing executions permit a prosecutor from the county where the condenmed inmate was tried and convicted to witness the execution without requiring representatives of the victim to yield one of the three witness positions they are entitled to select under O.R.C. § 2949.25(A)(6). 47. Plaintiff should have the right to have their counsel witness their executions, just as representatives of the State, law enforcement, and the prosecuting authority have a right to witness the execution. Plaintiff should be able to exercise this right without being forced to choose between having his counsel be a witness in lieu of one of the three persons he can otherwise choose to be witnesses under O.R.C. § 2949.25(A)(5). Plaintiff is entitled to have
20

Case 2:04-cv-01156-GLF-MRA Document 2-1 Filed 12/08/2004 Page 21 of 26
his counsel witness Plaintiffs execution in order to ensure that Plain~iff has an advocate present to represent his interests in the event something goes wrong during the execution process. 46. Defendants have the power and authority to provide Plaintiff with the right to have his counsel witness Plaintiffs execution without forcing Plaintiff to use one of the three witness slots allotted by O.R.C. § 2949.25(A)(5). The fact that Defendants have this power and authority is illustrated and proven by the fact that Defendants have permitted and/or have expressed a willingness to permit persons to witness executions even if those persons do not fit squarely into one of the categories described in O.R.C. § 2949.25, including but not limited to allowing a prosecutor from the county where the condemned person was tried and convicted to witness an execution without taking one of the three witness slots allotted to the victim's family by O.R.C. § 2949.25(A)(6); allowing persons to witness an execution on behalf of the victim when they were not chosen to be a witness by an immediate member of the victim's family; and/or allowing persons to witness an execution when those persons were representatives of a victim whose murder did not lead to the death sentence underlying the execution. Injunctive Relief Warranted 47. Plaintiff is entitled to a preliminary injunction stopping Defendants from executing him with the methods and procedures described herein because (I) there is a significant likelihood that he will prevail on the merits; (2) he will suffer irreparable harm if he is executed; (3) there is a great impact on the public's interest in making sure our govermnent does not behave like those of other nations we roundly condemn for utilizing execution methods that violate our nation's constitutional proscription against cruel and unusual punishment; and (4) there is a
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Case 2:04-cv-01156-GLF-MRA Document 2-1 Filed 12/08/2004 Page 22 of 26
substantial possibility that others under a sentence of death in Ohio will suffer unconstitutional executions unless this Court requires Defendants to design constitutionally acceptable execution procedures. Vittitow v. City of Upper Arlington, 43 F. 3d llOO, ll081109 (6th Cir. 1995); Basicomputer Com. v. Scott, 973 F. 2d 507, 5ll (6th Cir. 1992). 48. Plaintiff does not seek injunctive relief under 42 U.S.C. § 1983 as a means of attacking his underlying conviction or death sentence; rather, he simply seeks to utilize 42 U.S.C. § 1983 as a legitimate means to stop Defendants from executing him in a manner that violates his constitutional rights. If Defendants implement execution procedures that do not violate Plaintiff's constitutional rights, then Defendants will be entitled to execute Plaintiff barring relief granted through some other judicial or clemency proceeding. 49. 42 U.S.C. § 1983 provides, in pertinent part, for the protection of "any rights, privileges, or immunities secured by the Constitution and laws" against infringement by the states. When these rights are violated, 42 U.S.C. § 1983 creates an action for damages and injunctive relief for the benefit of "any citizen of the United States" against the state actor responsible for the violation. In accordance with the remedial nature of the statute, the coverage of 42 U.S.C. § 1983 must be "liberally and beneficently construed." Dennis v. Higgins, 498 U.S. 439, 443 (1991) (quoting Monell v. New York City Dept. of Social Services, 436 U.S. 658, 684 (1978)). In order to effect this liberal construction, the Court has "given full effect to [the statute's] broad language" by recognizing that 42 U.S.C. § 1983 provides a remedy "against all forms of official violation of federally protected rights." Id. at 444. 50. The Eighth Amendment's proscription against cruel and unusual punishment forbids the infliction of unnecessary pain in the execution of a death sentence. Louisiana ex rei. Francis v. Resweber, 329 U.S. 459, 463 (1947) (opinion of Reed, J.). A pnnishment is particularly
22

Case 2:04-cv-01156-GLF-MRA Document 2-1 Filed 12/08/2004 Page 23 of 26
constitutionally offensive if it involves the foreseeable infliction of suffering. Furman v. Georgia, 408 U.S. 238, 273 (1973) (citing Resweber, supra (had failed execution been intentional and not unforeseen, punishment would have been, like torture, "so degrading and indecent as to amount to a refusal to accord the criminal human status")). State officials cannot use methods of execution that demonstrate deliberate indifference towards rights protected by the Eighth and Fourteenth Amendments. See generally Nelson v. Campbell, 541 U.S._, 2004 U.S. LEXIS 3680 (2004). 51. It is foreseeable that death by lethal injection under the methods employed by Defendants will cause Plaintiff to suffer gratuitous pain. Far from producing a rapid and sustained loss of consciousness and a humane death, Defendants' means and methods of lethal injection can and will cause Plaintiff to consciously suffer a painful and protracted death. 52. Defendants have failed to demonstrate that they have in place procedures and protocols to guard against equipment failure, drug failure, or other things that can and predictably will go wrong during the lethal injection process. Defendants have failed to demonstrate that they have installed equipment to monitor Plaintiffs bodily functions so that they can immediately detect any failure in the drug regimen used to sedate and then kill Plaintiff. Defendants have failed to demonstrate that they have chosen and plan to use drugs that will achieve the stated purpose of causing Plaintiffs death in compliance with constitutional requirements.
VI. First Claim: Eighth Amendment Violation 53. Plaintiffincorporates all preceding paragraphs as if fully rewritten herein. 54. Defendants have created, maintained, and implemented lethal injection procedures, practices,
customs, and methods that they intend to use to execute Plaintiff. Defendants' lethal injection methods manifest their deliberate indifference towards Plaintiffs constitutional
23

Case 2:04-cv-01156-GLF-MRA Document 2-1 Filed 12/08/2004 Page 24 of 26
rights, both by what Defendants include and what they exclude from their methods of execution by lethal injection. These execution methods will violate Plaintiff's constitutional rights to be free from arbitrary, capricious, cruel, and unusually painful punishment, which rights are secured and guaranteed to him by the Eighth Amendment of the United States Constitution, as incorporated by the Fourteenth Amendment of the United States Constitution to limit Defendants' powers while acting individually or under the color and authority of state law.
VII. Second Claim: Fourteenth Amendment Due Process Violation 55. Plaintiff incorporates all preceding paragraphs as if fully rewritten herein. 56. Defendants have created, maintained, and implemented lethal injection procedures, practices,
customs, and methods that they intend to use to execute Plaintiff. Defendants' lethal injection methods manifest their deliberate indifference towards Plaintiff's constitutional rights, both by what Defendants include and what they exclude from their methods of execution by lethal injection. These execution methods will violate Plaintiff's constitutional rights to substantive and procedural due process as secured and guaranteed to him by the Fourteenth Amendment of the United States Constitution, which limits Defendants' powers while acting individually or under the color and authority of state law.
VIII. Prayer for Relief A. Plaintiff requests that this Court grant him injunctive relief by granting a permanent
injunction barring Defendants from executing Plaintiff in the manner by which Defendants currently intend to execute Plaintiff, in order to prevent Defendants from violating Plaintiff's federal constitutional rights under the Eighth and Fourteenth Amendments to the United States Constitution.
24

Case 2:04-cv-01156-GLF-MRA Document 2-1 Filed 12/08/2004 Page 25 of 26
B. Plaintiff requests that this Court grant him declaratory relief by issuing an Order declaring that the Defendants' current means, methods, practices, procedures, and customs regarding execution by lethal injection violate the Eighth and Fourteenth Amendments to the United States Constitution.
C. Plaintiff requests that this Court grant him injunctive relief by granting a preliminary and permanent injunction barring Defendants from executing Plaintiff unless Defendants first give Plaintiff the right to choose to have one of their attorneys witness Plaintiffs execution without forcing Plaintiff to choose to have counsel witness at the cost of using one of the three witness slots allotted by O.R.C. § 2949.25(A)(5).
D. Plaintiff requests that this Court grant him reasonable attorney fees under 42 U.S.C. § 1988 and the laws of the United States.
E. Plaintiff requests that this Court grant such further relief as it deems just and proper. Respectfully submitted,
K
Kelly Culshaw (0066394) Supervisor, Death Penalty Division Office of the Ohio Public Defender 8 East Long Street, 11th Floor Columbus, Ohio 43215 Phone: (614) 466-5394 Facsimile: (614) 644-0708 25

Case 2:04-cv-01156-GLF-MRA Document 2-1 Filed 12/08/2004 Page 26 of 26 Counsel For Plaintiff
CERTIFICATE OF SERVICE Plaintiff, through counsel, have served courtesy copies of this pleading by U.S. mail and by email on Defendants' counsel in Case No. 2:04-cv-532, including Michael Collyer, Marianne Pressman, and Kelley A. Sweeney, Assistant Attorneys General, Corrections Litigation Section,
.J~day of~;,:;~ 615 W. Superior Ave., 11'h Floor, Cleveland Ohio 44113-1899 on this
2004.
208545
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OH ADC 5120-9-31 OAC 5120-9-31 Ohio Adrnin. Code§ 5120-9-31

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restriction, include an restriction.

and the length explanation of

of time of the how they may

restriction, (conditional upon their pursue issues that could present a

compliance). The notice substantial risk of hann

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{G) Failure of the inmate initi:tte disciplinary action. comrllaint, a grievance, or chief inspector or designee,

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stcd(WheJle)airshsvsiesigTcnpin5heeracsoevt,aceetoedriisnofsfbmnte.hy,aaesSttIhiernubeemclaeghcsa,rhotienefiinseovtfmrahmsinehancstasfeelpolsrechpmcnoartomooliltscrpebbtlbodaeeeuiiunnrrsrtegeseeqarusfsesohhioqrraounelueeadlaslbdtctlbeoyhedb.seaatcdevrovpaemi.issloOapelbrnvialsleeyedsd.fttoaaotofrfmiftnhmsmethedamrelteoseibewgse4er1crs,.eoatgontesatsdthreedecbplruyetpsitthvsohaesensoicfsbhttlhetieehpe. sefTiiinrnhfssuepdplrelieeyscccttiioospdrrleiasnmoc.fsaarpriybybesebctdiseifttiauucbttsueiefoslodonrwoaminlr. (I) The filing of an informal complaint-step one: gfcwiprduoicSc\inunooVrlaofo'oasJeiomfomydmi.ermpdibdvdd.cesaepj1pipeeerptcdclilscteolnniutaaheattahor.auidei"snformnnfnSsohpcoutettoduauo.ooerir.aintftruslInotntiw.tfalefiecgthodnprTeiitettrsepthohnoomihhtsreiemiffnoetcartuatpfumdtiahlhhonntirllieineeedeerirmocaemsndinoi5tcpcandisneaamo1taetpfamlleo2tcmesrapestcr0cauchloldepmoi-taytpafrrael9imiYvasaoey'n-cosliin0nsptocnnfct.3licenohotasosiostTetniotfomSamnestrhrtrcthapthpetpaeti5coacweltlfattut1eaffiifhidistiiot2itsnietvnhalhnohh0itettiean,enaein-drupngtla9bealostrslfae-okotporof0iasesmecuerwtf4fesneehcrfaaprrs,steaovtcisomopintsiai.fcerntoucfeelavAtdneeobimnhalenssnslnfeninifybtrdnvyoyasiteeAanehnr.swrgwrpmsdat,pitTtiardlmavooiaaoilttahitinlltuvirinytetensntrheasgcrdeiiigdke.onisoesnrpe.ktnfImwiirarsosfasaorppoepIistlfat.mtnreu.lifh.nsota"vcfreopei"ooeimte,ntnnrohnsrhtevcmtprCpyhs-neiicetostectmoaooivesnemaldccftmesascaeaaooenyitclp,nfmenisofoilcpyiistbisptnmnmataaheidlrjnlrntapeueeetiauocirorl~lnrmgnteeaetyridirtvcioanbep,aanbttianneroprlttvyno_ayshrhedwtulvterdwsahrried(restyideeiHiseatensitseipphffrnp)mgtdaovfhgoiori.oninasiat.bnfc"ehotfstytserevaieartreissanhaslbstcrldenhihlsedwesnuetebsahia,et.r.pharlesa-tefitluliteooolthnnlrltfrnuoorgeedeeimall,mrnpfetdbcroihooti1enoohrnafer~rgemenrtenstueesdpifhttptpioifdliiaeotnalnlmorbunearrftffntycoiiooeooincsost,torunetuhtpmttnatrnhhaleeihtafiasaeeanhrnselfrll

(2) The filing of the notification of grievance-step No:
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(3) Tne filing of an appeal of the disposition cf griev-ance-step three:

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.i'
of;'

(lalrTtiiKohnenmhcecs)dtaeiolittromAeiiwunnrdptmsagicpoprteolrodnenoor:.ceardsptneltaoCrcitprssahtiehriotavoreoannveplsfglierceearrciesetmcnosystsnie.pttosoc:doehtneitunaecrirdnls.nsil)iposntpIftneogiofcratrouiltttfhhvthivieecisoedaenrilertgeniaovdsrsltiiopocetpglehevuortcesahti,ltienieooicvcrntniaoheemonefostffcaofietcioiaensnetr'hsssgtseopprihctierfuewaooctvltcmthialoaoeernprdnbdcluaeecaoelrnhiepfniossferetr,ooifrnrpvv(tisoFhiinttcdhreiosetteepriusdoiet.w.enicrwonxtaPointparthorlamhdeetliemterpnhnenlseeo'etefsnif,oratr,avauelaitpirp:sctrpioecoeenrreonsmootnrvtreotsaeowcdhflcai,aitetlntilhemsholeeninowmndswdauttaiorphabfyrioemdcdtlahiasieinycetctnicsioo,e.ltipusnhrtTe.d(h.!mooheaor,ertafftdimbpeia.n.'idu-urss'slo~tt.apchncapleaougecpcrdrsdcreeitouotosyurvarntenanhooostldet,..ff

warden's decision.

I
'

c(tosthLhhhree)iapelwGlotfilmiarrineirceedssyvppe,aoiennoncntcrodowerprwsheivniria.cstsrghhoiptaihnenitiacnnolttslohttyrhriertihasotrypntefyodciwnncakdaslanetlrienodftnoudvedrtan.iiarongrondgordaaloyalyidnyssassecpopraopvefurfcirosctteehovec,esreedwiowepvifotaterhsoinncfptsnotetgoihnrtitesudvioctioginneonrgainetleoadrlvyilsastesnahuencectrodehv.iitmkaTchnenehvosaiecwotmeocli.amnhutgTisipeoltnlyfnabei.ieninnTdstvfephiocSleeeilcusvdctcieoohhddrnliegorinfreoriciefdnatvlestyavhpsniieetgococnlectaesohttheirimo(eeosnfu)orsiofmndtffseisacpslhyaeieogwcewont?xoeftrterethu(hnoaslede)tr

designee is fmal.

CREDIT(S)

HISTORY: 1999-2000

200!-02 OMR 1596 (R-E), eff 1-1-02; 2000-2001 OMR 1213 (RRD); 1986-87 OMR 1251 (A), eff.

OMR 1182 (RRD); 2000- 2001 6-!- 87; 1979-80 OMR 4-1028

OMR 494 (RRD); (A), eff 7-10-80;

1977-78 OMR 3-!028 (A), eff. 2-20-78; prior rule 845(b)

Copr. ©West 2004 No Claim to Orig. U.S. Govt. Works

http://printwestlaw.com/de!ivery.html?dest=atp&dataid=B00558000000080800049881 07BB... 8/19/04

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 4 of 55

NOTIFICATION' OF GRIEVANCE

Name

Number·
Al94-0lo
Housing ASSignment·
DR-4 -

2015

lnst:tut1on ~lan.C-I.
Gnevance No_ (To be completeC 'oy insp_ ot inst. Services}
Dare:
_----------- __ J\U_,j_t>S ~-4_,__20_0_4_ ___ _

A. The nature of this Grievance is: (BE SPECIFIC and include what would solve your complaint.)

and

The nature of u~y Grievance i3 that Governor Taft1 Directoc Wilkinson 1 tha Southern Oi1io Correctional Facility Warden Haviland have created,

maintained, anC implemented means and a method of execution (i.e. Lethal

Inj<lction) that will subject cowplaintant to a de~rivation of his Consti-

tutional Rights.

My Grievance can be resolved by these means an<! OH:thods ~f execution be excised.

Resactfully Submitted/

,.2kw~¥!!/BhO!"'
R1thard w. Cooey,I~l94 016
Unit 5 I Death RoY I DR-4 2016

B. I attempted to solve th1.s problem .mformally by contactm. g !1r. Ron Pawlus
Name
(Attach informal complaint resolution or other correspondence material).

Deatl'l ROii Unit Manege
Position

C. I have read Administrative Regulation 5120-9-31.

~Yes

D No

D. I do not want the Inspector to ·solicit opinions from employees and inmates concerning my grievance. D

E.

\ : ' ' <,\, \ I will experience a substantial
resolved immediately.

risk

of

personal injury ~'- \

or

serious,
-~- ~

irreparable
D Yes r:;:...

harm if
D

this No

grievance

is

not

DRC 4088 {Rev. 7/97)

DIST

\ \
PINK - Inmate

EXHIBIT 2

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 5 of 55

I DISPOSITION OF GRIEVANCE
INMATE: RJCHARD COOEY
NUMBER:~A~\9~4~0~1~6_ _ _ _ _ _ _ __ _

GRIEVANCE CODE: -Vll4- - - - - -
RESOLUTION CODE: :;:_82~-----INSTITUTION: _O,;_!an::cC.:cl:_'__________
GRIEVANCE NUMBER: -08--04-~8- - - - DATE: 8/9/2004

0

The disposition of this grievance will be delayed longer than 14 calendar days for the following reason(s):

~

Your grievance,

filed

on

_ _.:o0:::.8:.::/0;;:6o,:/2:;.:0:.::0:..:4_~

-

date

has

been

reviewed

and

disposed

of as

follows:

In this grievance you state the method created, maintained, and implemented

and (i.e.

means lethal

ionfjeecxteiocnu)tiwonillthsautbGjeocvt eyronuortoTdaeftp,rDiviarteicotnoroWf yiolkuirncsoonns, taitnudtioWnaarldreignhHtsa. viland

have

wawadsArupehheRcpcoihieoc5ssaohea1ilots2fspnea0ulrlxeh-lboc9g,ajcl-ieiseus3nclsbd1taspeetmaIidefnvronatumer,trutatweaehdcntrioeetdtiisrhsoeGetinrhenriesxiiss,dtecshpvulpbeuoaeayssnlsriicaccvcogoeeierernplPaasyteprrcaaolowtLnlicfoidoetpnfhddfasiuierncwraceegti.hh.sr(iieaBcoOpjhn)uhtsasrhi(rloesaArredfte)maitschdo:ateyfitTottaiehnnhdricuessollfturtihundtpahlmeaeteraaaaoctnrneloeeduagoarpriotunpisettehpvogaoaarrlrrinmoeitcttvwyeeha,ceipbjbtrurhl:eaondigncliileecnstndihcmaculilsuirbepdepserea.wyorcociaColenglmoedrodmapotiphlnptaheglsiawsneiinrtnaisvsltnltesuidbtnwauersstheeicalionaocnnttnheaeansldpdicldrdtieeenoivstrgieeieonnlodnstorattaoricltlowuoltehmtrhigeosepaunrelteaibaxoilstannetlitsinflsfiltenl,ttaehley

Ohio's metlmd Governor Taft, of the courts.

oDfierexcetcourtiWonilkisindseotenr,mWinaerddebnyHleagviisllaantdiv, eleagcitsiolaiLtivTe haicstioofnfsi,ceorissuobojteicnt

a position to respond to grievances about matter that is exclusively within the jurisdiction

This issue is not grievable pursuant to AR 5120-9-31.

EXHIBIT
I 3

If you office

wofisthh,eyIonuspmeactyoar popf eInasl ttihtuistiodneaclisSioenrvticoetsh.e

Chief

Inspector

within

14

calendar

days.

Appeal forms are available in the

DRC4089 (REV 7191)

I Se<vlces
Page 1 of 1

y /

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 6 of 55

Appeal to the Chief Inspector

TO Chief Inspector

: 1\lar,e.

! Number:

1.1S[!tuuon
______Man._C
I am appealing

rhe

decision

of

the

: Gnevance No.
__Q_8:-04:::008
Y1anaging Officer and/or

the

AJ.Q:1_-:(llii__________ ,
' Date:
.A,!;!g]J§t _ l~8Lt__,2004~..___ __ Inspector of Institutional Services concerning

my Grievance, which they made on __00/09/~------- for the following reasons:

INSTRUCTIONS: Complere Appeal form Disposition of grievance and Supplemental

and attach CANARY copy Disposition of Grievance,

INSPECTOR, 1050 Freeway Dr. North, Columbus, Ohio; 43229.

of
if

the Notification uf used and submit

Grievartce. to: CHIEF

NOTE: Farm is

The submirted

Chief Inspector reserves without all the necessary

rhe right to return the Appeal Form, unanswered, documents as directed by the above instrucrions.

if

the

Appeal

The Inspector of Institutional Services has refused to resolve ana/or exhaust the Grievance that I submitted to her office simply because of her reliance on AR 5120-9-31.

EXHIBIT 4

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 7 of 55
DECISION OF THE CHIEF INSPECTOR ON A GRIEVANCE APPEAL

NAME:

RICHARD COOEY

NUMBER; -'A:..::1:::9::..4-.:_::0..=1-=6_ _ _ _ _ _ _ _ __

DATE:

OCTOBER 28, 2004

INSTITUTION:

MANCI

GRIEVANCE NUMBER (S): 08-04-008

sITgnerhsireepvveiaoccnfetfcoiscer.e, isaonfhdethyreoebuyrCalMlpieOpfeDaInIlFstpIoEetcDhtoiswr oiistffhicinen. orAecfrueeirvptitehweorfoayfocyutoirounrnoarptiepfiqceaualtiirohenadsobbfyegenrtihecveoamnincpesle,pteethdce.toTrdhiseopfdoesincitisisotinoitnuotofioftnthhaaelt

In reaching this decision, I and your attachments, and

reviewed your your appeal.

grievance,

which

was

received

by

the

inspector

on

August

6,

2004

toTinhhfjeeethcmetinioesinnapsneitsscittucooatrifrorinsiee,xdcetohcoreuruettoiocintsnlytahislpsarotnotnophoteertgfgwraireacieyvt vattahbobelealedDbdteoerpectaashusretsmtehineissnlettiitsthuosatufiloeRninieasjhletaoicnbtsifiolioiltneaetcyiiostoonurara, gnmardsiaeiCtvttaeoisnrrrcaeoecfmtdisoiartneattcteeutrlsyeolastuwotls.etihdthHiesaoltowhifnfeitcjehaeceu.ttiohlenothriaatysl

Accordingly, the inspector has been instructed to provide
directly to this office. You should briefly state on the form injection. You will then be provided with a response to your

you with a "Notification of Grievance" form what it is you are challenging as it relates to grievance.

to file lethal

Cheryl Martinez Chief Inspector

EXHIBIT 5

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 8 of 55

N

O

T
'

I

F.

I

C

A

T

I

O

N

OF

GRIEVANCE

Name R;C.HAR b CJ;oe;
Ncmbec. JCJ '-/ _ D/4;
Housing Ass1gnmenL
UNIT S- - DRJ/ Q6JU:>

c.z Institution

fY74A.t.

Gr~evance No. (To 'oe completed by ir.sp of lnst. Serv1ces)

Date:
;Uov. <!; ;Joo';l

A. The nature of this Grievance is: (BE SPECIFIC and include what would solve your complaint.)

~::~~ ~~~~~~~us~~~~~i¥Q,SJ~~~~t=~~~$.of ~~~;~c~fi~n~~~. ofraldytuota((eoihoEnEvoinlfgstuerlrexxuhephtamr..sugoatSstryuhsrTtRbOiiOsDlBOoahenmeehnr)in)oulhdebiedgtibrniirgyeApAtoleaejushothOau(tur'ueorpeTsxhettnrnftggychxeslrcfhaiuuyTntdcsa,AecratsishnumuecftattotumcdoDiauayrctfgnchgrr2ti4tstieuishru,ieagersi6,nssnepai.nuter,tttegiRcorim2.ltbrnveoot,f120ieseevgammNtcf080gttodnmaaleoh0at4,(ieyccnEncnyo4n,hwgomoaecd2dax,ttpaootfe0lile.I/isvwdlovayta0lAhiOeobnAietr4faenonaryuos.di,)hgncndlufafiemloadWurdgcnmonIugdtodlOilrreredisuiedaidannneoalmeeessotppakentclnvhsfgiAsrpilrianwfsuaeetsoagseuheabssd.docrlaignoecasailtitelfuenenhdheretiAtfdsvsnuTegc,diidtunimasojn.hernreeoanan9xttriaemncc1sshmhftce,telhdl9hytSealicuadi8poeifsd2etuoadtoJ3deaDwup0ttabnelaUdreiet0imelieaoollttre4otnnmaehaclenhfp,cwniywsadwtrbiibupzenesossuitteasydHi:haxreilscrsunoetahreeeteairgsoanSn1cndcstvaul.4stuoIItiydldfagnnlt,ittyazsfroniwtarssuonohei2ing(ppnigeEdcnsodty0Orleegovalx.io0rcch,ceice.ttu.t4titniaa-vaoyoo.o.oatngGnoia()trrenncTehub)wbnatni.oheoi(loidnnaEseet(iffnundEstxfflgdvetrusfdx.(IIowaEemneen.nnmhaexCtctsdssiavenie.Eeu)telttotri,eal)firibtiorntFmtesronjucuca)OtratemaahaaOttllc.itrwaiutAlsenttooieyttscaeta.tnsCnieOmrrancamoua.aeccspmydrelltkctr5oeitlhwhcne.orS1Sbeaeovtea2eeeiomntciangrl0rroOdltvvsl-icbulv2ic9tihiayngec8isca-iintoe3ol,eleouytns1tsl'vatso2a.tinbule0todeysiy0infoe4olOwaunu~Jl.'
Bmc2bain.ly0veea0itmhdl1lIaeoe,enaTdtnwIqhtOsdfcuatteyahfavmom,iiltton,yf.epTt~lt,eeWsdynladneo;jefiedtlatvttlhoecr,kt~athatisimiWon\lonossle,nveioeieal.enidntnxknjs,\teiehenpc,iccoasesun-otefrtpidnse~oroei,o~nsHxmnba~eenlanaencAvemosdwuli.l,tiaiaHit~tnoonhwhf"andvvohv'eorueimhir~lnnbaatuar~utnselseelredteylnnnbi.dbewaei;ynedubinsat.lcloeeipol~ndlnpe~eeatrahsnxxo~ciadeettpn~aiccnrcj4luuigueaatt>ieedrmtnOWebimemjchieeetieiRocrq.a"abtul"iyrri1oepypsnmPeruom.dMmecrnp.eIuehtlde(gonSdayseeni,iDnnexdtgg?ae-amdc1'toutm0eth4rtah-iie-ctno>othJinhsdtsear=sstm~ode<u/iertfngpoeYImahdA1gc.eA9eeaba.sJ9xuyn/s9se.1fe.coauJndrCtdAie,vrcsasefotohanUfa/''nt){)dJ

Name
(Attach informal complaint resolution or other correspondence material).

Pos1l1on

~/

C. I have read Administrative Regulation 5120-9-31.

}81 Yes

D No

D. I do not want the Inspector to solicit opinions from employees and inmates concerning my grievance. ~

E.

I will experience a substantial resolved immediately.

risk

of

personal

injury

or

serious,

irreparable
(Z Yes

harm if
D

this No

grievance

is

not

EXHIBIT
I 6

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 9 of 55
(Grievance con't)
Letters written by Haviland and Vince Lagana, a staff attorney for the Ohio Department of Rehabilitation and Correction, demonstrate that Taft, Wilkinson, and Haviland have executed others and intend to execute me by the following means. Three drugs will be administered: two grams of thiopental sodium in normal saline concentration; one hundred milligrams of pancuronium bromide in normal saline concentration; <L'ld I 00 milliequivalents of potassium chloride in normal saline concentration. At least the following equipment will be utilized: Angiocath Abbocath-T; primary IV Set No. 1820 (70 inch); and 0.9% sodium chloride, 1000 mi.
According to the letter dated May 30, 2002 authored by attorney Lagana, Taft, Wilkinson, and Haviland contend that they do not have to release all information descriptive of the lethal injection procedures. This includes, but is not limited to, information regarding any other equipment used; the personnel involved in the execution procedures; the education, training, expertise and experience of the personnel involved; or any other details surrounding this procedure.
Neither Taft, Wilkinson, and Haviland nor their agents have publicly disclosed all material and relevant details surrounding the process by which Taft, Wilkinson, and Haviland chose the method of lethal injection they use. Nor have Taft, Wilkinson, and Haviland or their agents publicly disclosed all material and relevant details pertaining to the personnel involved in the lethal injection execution procedure. This includes, but is not limited to, any education, credentials, training, expertise, or other factors that qualify or disqualify them from being involved in Ohio's lethal injection execution procedures.
Taft, Wilkinson, and Haviland and/or their agents simply copied lethal injection procedures from another state or other states. They did not invest meaningful and independent efforts

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 10 of 55
designed to ensure that Ohio's lethal injection execution procedures comply with contemporary medical standards and long-standing constitutional standards that forbid the infliction of excruciating, cruel, and unusual pain and punishment
Taft, Wilkinson, and Haviland intended means of executing me are inadequate, umeliable, and arbitrary; and Taft, Wilkinson, and Haviland's lethal injection execution procedures will cause me to suffer excruciating pain and cruel and unusual punishment Expert Opinion on Ohio's Lethal Injection Drugs
According to the attached affidavit of Mark J.S. Heath, a medical doctor board certified m anesthesiology, Taft, Wilkinson, and Haviland's lethal injection execution procedure will violate my constitutional rights. Dr. Heath's affidavit was prepared for previous litigation wherein two Ohio death row inmates (Lewis Williams and John Glenn Roe) filed a complaint similar to this grievance to challenge the constitutionality of Ohio's execution procedures. Dr. Heath's position as set forth in his attached affidavit remains substantially the same; that Taft, Wilkinson, and Haviland's execution procedures violate my constitutional rights for reasons that include but are not limited to the following:
Ha"Aitsps)eaap"nttrchhouitAoroTfopcfhneoieinldutaflmaoevltri"ttesla~oresntd6hdib.auyl"mPiW"najveaaucrndltdoieonnn""p)HOe, nahatvoinoitdl.alu}npsadoel"tsaa),nsthsdpeiuaamndtrctouucgrrhnsolenosyirouiLddmieaugmb(aarnlotsahmoisoitkdpaneteeonw(ttaahnllasot(aasalkss"onKpokaCwrntlo"oaw)s.f tpncpsBhuaaoa)aufnnttfsccoeatuuchfrradfeooeterAninceaoiittunuhwmm.ms,oeIat.nuhfjbosleHtdrahrnoteeimbiaoctettonihhidns,nieoAcom.cfepofreyrnnianPdosttaicaapoanivlibnocniaoauutinluors~dontno8nerp.htishuoesmem,tldaescdptspooiircaguoaranmtaloilrltycyeiaooazrjnsleeuo,sstnrtoeoiaafllrbiablalteetebvhslogdeelieuvtpgaonerlbntaeaictelrhiieynteoyifdmnutmooustsheesecdfeselioecespslaufr,loffpttbchioaceueciirtneotanlddiatronfuneottogdysr
2

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 11 of 55
C) If thiopental is not properly administered in a dose sufficient to cause death or at least the loss of consciousness for the duration of the execution procedure, then it is my opinion held to a reasonable degree of medical certainty that the use of pancuronium places the condemned inmate at risk for consciously experiencing paralysis, suffocation, and the excruciating pain of the intravenous injection of high dose potassium chloride. Heath Affidavit 1]9. D) Based on the information available to me, it is my opinion held to a reasonable degree of medical certainty that Ohio's lethal injection protocol creates an unacceptable risk that the inmate will not be anesthetized to the point of being unconscious and unaware of pain for the duration of the execution procedure. If the inmate is not first successfully anesthetized, then it is my opinion to a reasonable degree of medical certainty that the pancuronium will paralyze all voluntary muscles and mask external, physical indications of the excruciating pain being experienced by the inmate during the process of suffocating (caused by the pancuronium) and having a cardiac arrest (caused by the potassium chloride). Heath Affidavit 1]1 0. E) If administered alone, a lethal dose of pancuronium would not immediately cause a condemned inmate to lose consciousness. It would totally immobilize the inmate by paralyzing all voluntary muscles and the diaphragm, causing the inmate to suffocate to death while experiencing an intense, conscious desire to inhale. Ultimately, consciousness would be lost, but it would not be lost as an immediate and direct result of the pancuronium. Rather, the loss of consciousness would be due to suffocation, and would be preceded by the torment and agony caused by suffocation. Heath Affidavit 1]11. F) It is my understanding that Ohio's execution protocol requires the presence of media witnesses to the execution, and permits the presence of witnesses chosen by the inmate and chosen by the victim's surviving family members. It is my opinion based on a reasonable degree of medical certainty t'lat the use of pancuronium effectively nullifies the ability of witnesses to discern whether or not the condew..ned prisoner is experiencing a peaceful or agonizing death. Regardless of the experience of the condemned prisoner, whether he or she is deeply unconscious or experiencing the excruciation of suffocation, paralysis, and potassium injection, he or she will appear to witnesses to be serene and peaceful due to the relaxation and immobilization of the facial and other skeletal muscles. Heath Affidavit 1]13. G) Based on my research into issues related to lethal execution, I know that there was a time when pancuronium was an acceptable drug for use by veterinarians in the euthanasia of household pets such as dogs and cats; but that the use of pancuronium is now prohibited by many veterinary guidelines in this and other countries for precisely the reasons outlined above. Veterinary standards forbid creating the risk that household pets would die while pancuronium masks
3

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 12 of 55

the type of excruciating pain human beings are exposed to in Ohio's execution protocol. The use of pancuronium fails to comport with the evolving "standard of decency" regarding the ending of life in household pets. In my medical opinion, based on a reasonable degree of medical certainty, the use of pancuronium in the lethal injection protocol for executing human beings violates standards of decency designed to prevent the infliction of excruciating pain and suffering on human· beings. Heath Affidavit ~ 14.

H) Another major concern I have based on what I know about Ohio's lethal injection protocol relates to the use of sodium thiopental. Sodium thiopental is an ultrashort-acting barbiturate with a very short shelf life in liquid form. Thiopental is distributed in powder form to increase its shelf life; it must be mixed into a liquid solution by trained personal before it can be injected. Heath Affidavit~ 15.

I)

When anesthesiologists use sodium thiopental, we do so for the purposes

oftemporarily anesthetizing patients for sufficient time to intubate the trachea and

institute mechanical support of ventilation and respiration. Once this has been

achieved, additional drugs are administered to maintain a "surgical depth" or

"surgical plane" of anesthesia (i.e., a level of anesthesia deep enough to ensure

that a surgical patient feels no pain and is unconscious for the duration of the

surgical procedure). The medical utility of thiopental derives from its ultrashort-

acting properties: if unanticipated obstacles hinder or prevent successful

intubation, patients will quickly regain consciousness and will resume ventilation

and respiration on their own. Heath Affidavit~ 16.

J)

The benefits of thiopental in the operating room engender serious risks in

the execution chamber. Based on the information I have available to me

concerning Ohio's execution protocol, a two (2) gram dose of sodium thiopental

is apparently administered in a single injection from a single syringe. By contrast,

based on my research and the research of others into the procedures for executing

human beings by means of lethal injection, the original design of the. lethal

injection protocol called for the continuous intravenous administration of an

ultrashort-acting barbiturate. Based on my research and the research of others, the

central elements of the lethal-injection procedure used in Ohio is similar to the

one adopted many years ago in Oklahoma (which, it appears, many states used as

a model without substantive independent research). Oklahoma requires the

"continuous intravenous administration of an ultrashort-acting barbiturate"

(Oklahoma Statutes, Title 22 Criminal Procedure, Chapter 17 part 1014 A). It

does not appear that Ohio's protocol includes this "continuous" requirement. The

use of a continuous administration of the ultrashort-acting barbiturate is essential

to ensure continued and sustained unconsciousness during the administration of

pancuronium and potassium chloride. It is my opinion based on a reasonable

degree of medical certainty that the failure to require a continuous infusion of

thiopental places the condemned inmate at a needless and significant risk for the

4

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 13 of 55

conscious experience of paralysis during the excruciating pain of both suffocation and the intravenous injection of potassium chloride. Heath Affidavit~ 17.

K) Based on my research into lethal injection, the dose of pentothal described in the Ohio protocol, 2 grams, is considerably lower than the doses described in the protocols of many states and the Federal Government. It is my opinion based· on a reasonable degree of medical certainty that Ohio's relatively low dose of thiopental amplifies the concern relating to the single injection (as opposed to continuous infusion) of this ultrashort-acting barbiturate, thereby further elevating the risk that the condemned person will suffer excruciating pain masked by the pancuronium. Heath Affidavit ~ 18.

L) Above and beyond my concerns stated above about the drugs used in

Ohio, the details of Ohio's lethal injection protocol that I have been made aware

of do drugs

not account for used. I have

procedures designed to ensure the not seen details regarding the

proper preparation of the credentials, certification,

experience, or proficiency of the personnel who will be responsible for the mixing

of the thiopental from powder form, or for the drawing up of the drugs into the

syringes. Preparation of drugs, particularly for intravenous use, is a technical task

requiring significant training in pharmaceutical concepts and calculations. It is

my opinion based on a reasonable degree of medical certainty, and based on my

review of lethal execution procedures in states that have disclosed more detailed

information that what I have seen about Ohio's procedures, that there exist many

risks associated with drug preparation that, if not properly accounted for, further

elevate the risk that an innaate will consciously experience excruciating pain

during the lethal injection procedures. Heath Affidavit~ 20.

M) The information available to training, credentials, certification,

me provides experience,

inadequate detail regarding the or proficiency of any prison

employee, nurse or paramedic who performs the execution procedure. The

absence of condemned

such detail inmates risk

raises critical questions about the degree to which suffering excruciating pain during the lethal injection

procedure. It is my opinion based on a reasonable degree of medical certainty

that the correct and safe management of intravenous drug and fluid administration

requires a significant level of professional acumen, and can not be adequately

performed by personnel lacking the requisite training and experience. The great

majority of nurses are not trained in the use of ultrashort-acting barbiturates;

indeed, this class of drugs is essentially only used by nurses who have significant

experience in intensive care units and as nurse anesthetists. Very few paramedics

are trained or experienced in the use of ultrashort-acting barbiturates. Based on

my medical training and experience, and based upon my injection procedures and practices, inadequacies in these areas the lethal injection procedure will cause the condemned to

research of lethal elevate the risk that suffer excruciating

pain during the execution process. Heath Affidavit~ 22.

5

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 14 of 55
N) Based on my research into methods of lethal injection used by various states and the federal government, and based on my training and experience as a medical doctor specializing in anesthesiology, it is my opinion based on a reasonable degree of medical certainty that, given the apparent absence of a central role for a properly trained medical or veterinary professional in Ohio's execution procedure, it can and should be presumed that the lethal injection procedure Ohio employs creates medically unacceptable risks of infliction excruciating pain and suffering on inmates during the lethal injection procedure. Heath Affidavit ~ 26.
Firsthand Account of Adverse Effects of Drug Failure
Dr. Heath's opinions and observations are corroborated by the experience of persons like eye-surgery patient Carol Weihrer. During Ms. Weihrer's surgery, the sedative she received was ineffectual, leaving Ms. Weihrer conscious. Due to the administration of a neuromuscular blocking agent like pancuronium bromide, however, she was unable to tell her doctors she was awake and in terrible pain: "I therefore experienced what has come to be known as Anesthesia Awareness, in which I was able to think lucidly, hear, perceive and feel everything that was going on during the surgery, but I was unable to move. It burnt like the fires of hell. It was the most terrifying, torturous experience you can imagine. The experience was worse than death." The paralytic agent made Ms. Weihrer appear sedated even though she was experiencing intense pain as the doctors removed her eyeball. The combination of the kinds of chemicals Taft, Wilkinson, and Haviland use during Ohio's lethal injection procedures resulted in this horrifying expenence.
Taft, Wilkinson, and Haviland cannot rule out the possibility that the thiopental sodium (the short-acting sedative, which is the first drug administered during the lethal injection procedure) will fail to adequately sedate me.
Taft, Wilkinson, and Haviland's lethal injection protocol fails to require that a person with adequate medical training be present to witness the execution, to employ the medical monitoring
6

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 15 of 55
equipment necessary to detect failures in the procedure, and to take appropriate steps if and when it becomes evident that the condemned inmate is suffering excruciating pain.
Taft, Wilkinson, and Haviland's lethal injection protocol does not include nor require the use of any medical equipment designed to monitor the condemned person's heart beat, pulse, or brain waves during the execution (i.e., from the point at which the condemned person is strapped to the execution table in the execution chamber until death is pronounced). Statements by Dr. Mark Dershwitz
On September 16, 2004, a New York Times article quoted Dr. Mark. Dershwitz, a professor of anesthesiology at the University of Massachusetts, expressing concern about the efficacy of similar if not identical lethal injection protocols in other states where post-execution blood tests showed much lower levels of the anesthetic than Dr. Dershwitz says is necessary to ensure sedation. Adam Liptak, On Death Row, A Battle Over the Fatal Cocktail, The New York Times (Sept. 16, 2004) Dr. Dershwitz found that the levels of barbiturate found in three blood samples from executed Kentucky inmate Edward Harper's body were potentially troubling. Levels varied from 3 to 6.5 milligrams, when they should be much higher than 7 (the level at which about 50 percent of people are conscious and 50 percent are unconscious), according to Dr. Dershwitz. Executions in South Carolina and North Carolina also caused concern. Under Dr. Dershwitz' s standards, lawyers for Kentucky inmates argue, there was a 50 percent or greater chance that eight of the condemned men were conscious throughout their executions. In one of the cases, the likelihood was 90 percent. In four, it was I 00 percent. Improper Chemical Veil
Taft, Wilkinson, and Haviland have no medically justified reason for using pancuronium (or any other neuromuscular blocking agent) during the lethal injection procedures.
7

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 16 of 55
Using pancuromum or any other neuromuscular blocking agent in the lethal injection protocol serves no purpose other than to place me into a state of "chemical entombment" while he consciously experiences suffocation, the pain of potassium chloride, and the pain of cardiac arrest
Taft, Wilkinson, and Haviland intend to use pancuronium or any other neuromuscular blocking agent for the sole but unconstitutional purpose of wrapping me in a chemical veil to hide the muscular convulsions otherwise evident in human beings fighting suffocation and experiencing cardiac arrest.
Taft, Wilkinson, and Haviland can offer no rational, non-arbitrary justification for using pancuronium. At best, Taft, Wilkinson, and Haviland's use of this drug creates unconstitutional risks in service of the unjustifiable purpose offered by Georgia Medical Examiner Dr. Sperry, who said, when testifying about a similar lethal injection method, that a neuromuscular blocking agent is used "to paralyze all the muscles such that those outwardly aesthetically unpleasant things are not seen and do not occur." State v. Michael Wayne Nance, Gwinnett County Superior Court, Indictment No. 95-B-2461-4, Tr. 39-40, July 30, 2002. Dr. Sperry may have meant that, even when properly sedated, a condemned person's body may convulse while dying during an execution by lethal injection, and these convulsions would be "aesthetically unpleasant" for executioners and witnesses. This is not a constitutionally valid purpose.
Once paralyzed, neither Taft, Wilkinson, and Haviland nor the witnesses could tell if the sedative failed, leaving me in horrific but undetectable pain. Witnesses viewing the lethal injection procedure and the general public will never realize the cruel fraud perpetrated upon them: instead of witnessing an inmate quiet and motionless, euphemistically thought of as being "put to sleep," they are in fact witnessing the chemical cover-up of an act of excruciating torture.
8

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 17 of 55
Taft, Wilkinson, and Haviland fail to include in their execution methods readily available medical equipment which, if used by properly trained personnel, would alert Taft, Wilkinson, and Haviland and their executioner agents to the fact that the sedative failed but the paralytic agent took effect, thus leaving me conscious but experiencing extreme pain as would be manifest by bodily functions monitored by the medical equipment. Taft, Wilkinson, and Haviland's methods of execution violate my constitutional rights by reason of the failure to put in place procedures for the use of medical monitoring equipment and other such necessary procedures and properly trained execution personnel to respond appropriately to the information revealed by the medical equipment. Inadequate Training of Execution Personnel
Taft, Wilkinson, and Haviland's lethal injection protocol fails to provide a person or persons with adequate medical training to witness the execution and stand ready to take appropriate steps if and when it becomes evident that the condemned inmate is suffering excruciating pain, and/or the drugs are not being properly delivered into the condemned inmate's body, and/or the drugs are not having their intended effect.
Taft, Wilkinson, and Haviland's failure to provide rational, reliable directions or standards for the requisite training, education, and expertise of the personnel who carry out executions by lethal injection in Ohio leads to the conclusion that Taft, Wilkinson, and Haviland's execution methods violate my constitutional rights.
Taft, Wilkinson, and Haviland's lethal injection execution procedures fail to address all factors necessary to ensure compliance with constitutional requirements, including but not limited to the following factors. If some or all of these factors have been addressed, then Taft, Wilkinson, and Haviland have violated my constitutional rights by failure to disclose them:
9

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 18 of 55
A) the minimum qualifications, expertise, and training required for the different personnel performing the tasks involved in the lethal injection procedure after the catheter is inserted; B) the methods for obtaining, storing, mixing, and appropriately labeling the drugs, the minimum qualifications and expertise required for the person who will be determining the concentration and dosage of each drug to give, and the criteria that shall be used in exercising this discretion; C) the manner in which the IV tubing, three-way valve, saline solution and other apparatus shall be modified or fixed in the event it is malfunctioning during the execution process, the minimum qualifications and expertise required of the person who shall have the discretion to decide to attempt such action, and the criteria that shall be used in exercising this discretion; D) the manner in which a heart monitoring system shall be installed and utilized to ensure that the inmate is deeply sedated while dying; and the qualifications and expertise required for the person who operates this equipment; E) the manner in which the IV catheters shall be inserted into the condemned prisoner, the minimum qualifications and expertise required for the person who is given the responsibility and discretion to decide when efforts at inserting the IV catheters should be abandoned in favor of some other constitutionally acceptable procedure; and the manner in which the condition of the condemned prisoner will be monitored to confirm that proceeding to the next procedure would not inflict severe and unnecessary pain and suffering on the condemned prisoner; F) the minimum qualifications and expertise required of the person who is given the responsibility and discretion to order the staff to divert from the established protocols if necessary to avoid inflicting severe and unnecessary pain and suffering on the condemned prisoner, and the criteria that shall be used in exercising this discretion; and G) the minimum qualifications and expertise required of the person who is given the responsibility and discretion to ensure that appropriate procedures are followed in response to unanticipated problems or events arising during the lethal injection procedure, and the criteria that shall be used in exercising this discretion.
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Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 19 of 55
Veterinarians Cannot Euthanize House Pets with the Drugs Defendants Use to Execute Human Beings
Taft, Wilkinson, and Haviland intend to execute me by using drugs veterinarians cailllot use during the euthanasia of house pets. Specifically, using a paralyzing, neuromuscular bfocking agent violates veterinarians' ethical standards.
Using paralyzing agents violates veterinarians' ethical standards. The leading professional association of veterinarians prohibits the use of paralyzing agents during the euthanasia of house pets. The American Veterinarian Medical Association's (AVMA) year 2000 Report on Euthanasia clearly declares that "[a] combination of pentobarbital [an anesthetic in the same category of drugs as thiopental] with a neuro-muscular blocking agent [like pancuronium] is not an acceptable euthanasia agent." It is not acceptable because the paralytic agent may mask the failure of the other drugs, resulting in a painful death.
Since 1981, many states have passed laws governing the euthanasia of pets that preclude the use of a sedative in conjunction with a neuromuscular blocking agent. Texas, Tex. Health & Safety Code, § 821.052(a); Florida, Fla. Stat. §§ 828.058 and 828.065 (enacted in 1984); Georgia, Ga. Code Ann. § 4-11-5.1 (enacted in 1990); Maine, Me. Rev. Stat. Ann., Tit. 17, § 1044 (enacted in 1987); Maryland, Md. Code Ann., Criminal Law,§ 10-611 (enacted in 2002); Massachusetts, Mass. Gen. Laws§ 140:151A (enacted in 1985); New Jersey, N.J.S.A 4:22-19.3 (enacted in 1987); New York, N.Y.Agric. & Mkts § 374 (enacted in 1987); Oklahoma, Okla. Stat., Tit. 4, § 501 (enacted in 1981); Tennessee, Tenn. Code Ann.§ 44-17-303 (enacted in 2001). Other states have implicitly banned such practices. See Illinois, 510 IlL Camp. Stat., ch. 70, § 2.09; Kansas, Kan. Stat. Ann.§ 47-1718(a); Louisiana, La. Rev. Stat. Ann.§ 3:2465; Missouri, 2 CSR 30-9.020(F)(5); Rhode Island, R.I. Gen. Laws§ 4-1-34, Connecticut, Conn. Gen.Stat. § 22-
II

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 20 of 55
344a; Delaware, Del. Code Ann., Tit. 3, § 8001; Kentucky, Ky.Rev.Stat. Ann. § 321.181 (17) and 201 KAR 16:090, § 5(1); South Carolina, S.C.Code Ann.§ 47-3-420.
These statutory declarations, which embody societal values for the euthanasia of house pets, underscore the inhumanity of methods by which Taft, Wilkinson, and Haviland intend to execute me. Euthanasia techniques banned as cruel to dogs and cats by definition violate standards of decency regarding the execution of human beings. The discordance between standards for pet euthanasia and Ohio's lethal execution procedures proves that Taft, Wilkinson, and Haviland's lethal injection procedures fall far outside contemporary standards of decency. Compare Atkins v. Virginia, 536 U.S. 304, 315 (2002) ("It is not so much the number of these States [that have
banned executing those with retardationJ that is significant, but the consistency of the direction
of change."). Cooey's Counsel Should Have The Right To Witness The Execution
I have a right to select three persons who are not confined in any state institution to witness their executions; plus they can ask the clergy person in attendance to witness their executions. O.R.C. § 2949.25(A)(5).
Taft, Wilkinson, and Haviland's execution procedures do not provide an automatic right for my counsel to be a witness to those parts of the execution process that are seen by those who are witnesses to an execution. Instead, Taft, Wilkinson, and Haviland's execution procedures permit my counsel to be a witness to the execution only if I nominate counsel to be one of the three witnesses allotted by O.R.C. § 2949.25(A)(5), and by Taft, Wilkinson, and Haviland's customs and practices governing who actually witnesses an execution.
Taft, Wilkinson, and Haviland's execution procedures and O.R.C. § 2949.25(A)(2) permit the sheriff of the county where a condemned person was tried and convicted to be a witness to an
12

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 21 of 55
execution. Taft, Wilkinson, and Haviland's practices, routines, and formal and informal procedures and customs governing executions, pennit a prosecutor from the county where the condemned inmate was tried and convicted to witness the execution without requiring representatives of the victim to yield one of the three witness positions they are entitled to select under O.R.C. § 2949.25(A)(6).
I should have the right to have my counsel witness my execution, just as representatives of the State, law enforcement, and the prosecuting authority have a right to witness the execution. I should be able to exercise this right without being forced to choose between having my counsel be a witness in lieu of one of the three persons he can othenvise choose to be witnesses under O.R.C. § 2949.25(A)(5). I am entitled to have my counsel witness my execution in order to ensure that he has an advocate present to represent my interests in the event something goes wrong during the execution process.
Taft, Wilkinson, and Haviland have the power and authority to provide me with the right to have my counsel witness my execution without forcing him to use one of the three witness slots allotted by O.R.C. § 2949.25(A)(5). The fact that Taft, Wilkinson, and Haviland have this power and authority is illustrated and proven by the fact that Taft, Wilkinson, and Haviland have permitted and/or have expressed a willingness to permit persons to witness executions even if those persons do not fit squarely into one of the categories described in O.R.C. § 2949.25, including but not limited to allowing a prosecutor from the county where the condemned person was tried and convicted to witness an execution without taking one of the three witness slots allotted to the victim's family by O.R.C. § 2949.25(A)(6); allowing persons to witness an execution on behalf of the victim when they were not chosen to be a witness by an immediate member of the victim's family; and/or allowing persons to witness an execution when those
13

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 22 of 55
persons were representatives of a victim whose murder did not lead to the death sentence underlying the execution.
The Eighth Amendment's proscription against cruel and unusual punishment forbids the infliction of unnecessary pain in the execution of a death sentence. Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463 (1947) (opinion of Reed, J.). A punislu-nent is pa.-ticularly constitutionally offensive if it involves the foreseeable infliction of suffering. Furman v. Georgia, 408 U.S. 238, 273 (1973), citing Resweber, supra (had failed execution been intentional and not unforeseen, punishment would have been, like torture, "so degrading and indecent as to amount to a refusal to accord the criminal human status"). State officials cannot use methods of execution that demonstrate deliberate indifference towards rights protected by the Eighth and Fourteenth Amendments. See generally Nelson v. Campbell, 541 U.S. _ , 2004 U.S. LEXIS 3680 (2004).
It is foreseeable that death by lethal injection under the methods employed by Taft, Wilkinson, and Haviland will cause me to suffer gratuitous pain. Far from producing a rapid and sustained loss of consciousness and a humane death, Taft, Wilkinson, and Haviland's means and methods of lethal injection can and will cause me to consciously suffer a painful and protracted death.
Taft, Wilkinson, and Haviland have failed to demonstrate that they have in place procedures and protocols to guard against equipment failure, drug failure, or other things that can and predictably will go wrong during the lethal injection process. Taft, Wilkinson, and Haviland have failed to demonstrate that they have installed equipment to monitor my bodily functions so that they can immediately detect any failure in the drug regimen used to sedate and then kill me. Taft, Wilkinson, and Haviland have failed to demonstrate that they have chosen and plan to use drugs
14

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 23 of 55
that will achieve the stated purpose of causing my death in compliance with constitutional requirements.
Taft, Wilkinson, and Haviland have created, maintained, and implemented lethal injection procedures, practices, customs, and methods that they intend to use to execute me. Taft, Wilkinson, and Haviland's lethal injection methods manifest their deliberate indifference towards my constitutional rights, both by what Taft, Wilkinson, and Haviland include and what they exclude from their methods of execution by lethal injection. These execution methods will violate my constitutional rights to be free from arbitrary, capricious, cruel, and unusually painful punishment, which rights are secured and guaranteed to him by the Eighth Amendment of the United States Constitution, as incorporated by the Fourteenth Amendment of the United States Constitution to limit Taft, Wilkinson, and Haviland's powers while acting individually or under the color and authority of state law.
Taft, Wilkinson, and Haviland have created, maintained and implemented lethal injection procedures, practices, customs, and methods that they intend to use to execute me. Taft, Wilkinson, and Haviland's lethal injection methods manifest their deliberate indifference towards my constitutional rights, both by what Taft, Wilkinson, and Haviland include and what they exclude from their methods of execution by lethal injection. These execution methods will violate my constitutional rights to substantive and procedural due process as secured and guaranteed to him by the Fourteenth Amendment of the United States Constitution, which limits Taft, Wilkinson, and Haviland's powers while acting individually or under the color and authority of state law.
15

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 24 of 55

DECISION OF THE CHIEF INSPECTOR ON A GRIEVANCE

NAME: NUMBER: DATE:

RICHARD COOEY 194-016 NOVEMBER 9, 2004

INSTITUTION: MANCI GRIEVANCE NO.: CI-04-463

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Cheryl Jorgensen-Martinez Chief Inspector

EXHIBIT
I 7

..

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 25 of 55

U.S. District Court Southern District of Ohio (Columbus) CIVIL DOCKET FOR CASE#: 2:04-cv-00532-GLF-MRA

Adremy Dennis et al v. Taft et al Assigned to: Gregory L Frost Referred to: Mark R. Abel Demand:$
Lead Docket: None Related Cases: None Case in other court: None Cause: 42:1983 Prisoner Civil Rights

Date Filed: 06/ l0/04

Jury Demand: None

Nature of Suit: 550 Prisoner: Civil Riahts

Jurisdiction: Federal Question

"'

Plaintiff

Adremy Dennis
Richard W Cooey, II
V.

represented by Gregory William Meyers Ohio Public Defender's Office - 2 8 E Long Street 11th Floor Columbus, OH 43215-0587 614-466-5394 Email: greg.meyers @opd.state.oh.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda E Prucha Ohio Public Defender's Office - 2 8 E Long Street II th Floor Columbus, OH 43215-0587 614-466-5394 Fax: 614-466-5394 Email: linda.prucha@opd.state.oh.us ATTORNEY TO BE NOTICED
represented by Gregory William Meyers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda E Prucha (See above for address) ATTORNEY TO BE NOTICED

Def'endant

EXHIBIT
' 8

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 26 of 55

Robert Taft
Reginald Wilkinson James Haviland

represented by Kelley Ann Sweeney Ohio Attorney General - 2 615 W Superior Avenue II th Floor Cleveland, OH 44113-1899 216-787-3030 Fax : 2!6-787-3480 Email: ksweeney@ag.state.oh.us ATTORNEY TO BE NOTICED
Marianne Pressman Ohio Attorney General - 2 Corrections Litigation Section 441 Vine Street Suite 1600 Cincinnati, OH 45202-2809 513-852-3497 Email: mpressman @ag.state.oh.us ATTORNEY TO BE NOTICED
Michael L Collyer Assistant Attorney General 615 W Superior Avenue II th Floor Cleveland, OH 44113 216-787-3030 Fax: 216-787-3480 Email: mcollyer@ag.state.oh.us ATTORNEY TO BE NOTICED
represented by Kelley Ann Sweeney (See above for address) ATTORNEY TO BE NOTICED
Marianne Pressman (See above for address) ATTORNEY TO BE NOTICED
Michael L Collyer (See above for address) ATTORNEY TO BE NOTICED
represented by Kelley Ann Sweeney (See above for address) ATTORNEY TO BE NOTICED
Marianne Pressman (See above for address) ATTORNEY TO BE NOTICED

Michael L Collyer (See abO\·e for address)

.. Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 27 of 55
AITORNEY TO BE NOTICED

Filing Date 06/10/2004 06/10/2004
06/18/2004 06/30/2004 07/12/2004 07113/2004 08/05/2004 08/23/2004
08/24/2004

#

Docket Text

l

MOTION for Leave Richard W Cooey II.

to Proceed in forma pauperis by Plaintiffs Adremy (Attachments: # l Cooey IFP App)Uh, ) (Entered:

Dennis, 06/17/2004)

2

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4

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5

NOTICE of Appearance by Wilkinson, James Haviland

Marianne Pressman Defendants (Pressman, Marianne) (Entered:

Robert Taft, 07/12/2004)

Reginald

Q

NOTICE of Appearance by Wilkinson, James Haviland

Michael L Collyer (Collyer, Michael)

DCfendants Robert Taft, (Entered: 07/1 3/2004)

Reginald

1

MOTION Haviland.

to Dismiss Responses

by Defendants Robert Taft, Reginald Wilkinson, James due by 8/30/2004 (Sweeney, Kelley) (Entered: 08/05/2004)

·

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. Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 28 of 55 '

#I I Exhibit Eight, Part Three: Exhibit to Memo Contra I2(b)(6)# 12 Exhibit Part Four: Exhibit to Memo Contra 12(b)(6))(Meyers, Gregory) (Entered:

Eight,

08/24/2004)

08/30/2004

.ill

REPLY to Response to Motion re 1 MOTION to Dismiss filed by
Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: (Sweeney, Kelley) (Entered: 08/30/2004)

Defendants # I Exhibit)

09/0112004
-
09/0112004

lJ RESPONSE in Opposition re 9 MOTION for Preliminary Injunction To Stay
0EJAa9xfm1ef0iced1usa1tvi2Hoi0tan0vo4Oif)laDfnPedlr.ash(iAnwttiitftafzcD#hem,3_neEnnixsthsf:iibl#ietdIAbEfyfxihdDiabevfiitetnAodffafRnidtosasvRoitwobo)(efCrWtoTlalarydfete,rn,RMHegiacivnhiaalalednl)dW#(Ei2lnktEienxrsehodinb: ,it

12

HSSuuappvppilllaeenmmdee,nnRttaaollbEMerxtehmTibaoiftrta,fniRldeedugmibnyaOlDdppeWfoesinilndkgainnrsteos 1nR,1oJRbaemerstepsToaHnfsate,vRiinlaenOgdipn.pa(olCdsoiWtliloyinlekrti,onMsMoincoh,tiaJoaenml), es

(Entered: 09/0112004)

09/03/2004

ll

REPLY to Execution

Response to Motion re 9 MOTION for Preliminary Injunction Of PlaintiffDennis filed by Plaintiff Adremy Dennis. (Meyers,

To Stay Gregory)

(Entered: 09/03/2004)

09/16/2004 09/20/2004 09/20/2004
09/20/2004 09/20/2004

14

ORDER Gregory

denying 9 L Frost on

Petitioner's Motion for Preliminary Injunction. 9/16/04. (sem, ) (Entered: 09/16/2004)

Signed

by

Judge

15

NOTICE OF APPEAL by Plaintiff Kyle) (Entered: 09/20/2004)

Adremy

Dennis.

Filing

fee$

255.

(Timken,

!_() MOTION for Order to set Trial Date on or before October 8, 2004 by Plaintiffs

Adremy Dennis, Richard Times article quoting Dr.

W Cooey II. (Attachments: # l
Dershwitz)(Meyers, Gregory)

Exhibit 9- I6-04 New (Entered: 09/20/2004)

York

l7

MOTION for Order to Compel Defendants to Answer Complaint by Plaintiffs Adremy Dennis, Richard W Cooey II. (Meyers, Gregory) (Entered: 09/20/2004) ,.

.
''
I

18

MOTION to by Plaintiffs 09/20/2004)

Expedite Ruling Adremy Dennis,

On D4endants' Pending Rule 12b Motion to Dismiss Richard W Cooey II. (Meyers, Gregory) (Entered:

09/21/2004 09/23/2004

I<) MOTION to Compel DiscOFery If' Trial Date Is Set On Or Bej(H·e 10-8-04 by 2PPI43llaa--ii00nn44ttiifLRfffesestq'tACeurdeosrtuotenmFsPeoyllar'DsiPne7rtoin-f1dnf4usis'-cC,0tiRo4ouinLcnhesoateftrledD)r(oMWtoceuDCymeoeerfosnee,ntysdG#aIrLn3etg(sEoA'xrCtyhto)iabuc(inEht smnCetlee#Drnee2tdsf:E:e#nx0dh9Iai/Eb2ni1xtts/h'2BiC0b0Piot4ulaA)nisnetli'fsfs7' -7Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re I:'

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 29 of 55

09/24/2004 09/24/2004

Notice of Appeal. (dms) (Entered: 09/23/2004)
20 ORDER granting 7_ Respondents' Motion to Dismiss and denying as moot .LS
Petitioner's Motion to Expedite ruling on the Motion to Dismiss; This action is DISMISSED WITHOUT PREJUDICE. Signed by Judge Gregory L Frost on 9/24/04. (sem, ) (Entered: 09/24/2004)
.2J JUDGMENT entered pursuant to the Opinion and Order signed by Judge Gregory L Frost on 9/24/04, (sem,) (Entered: 09/24/2004)

I

PACER Service Center

I

I

Transaction Receipt

I

I

09/25/2004 15:34:43

I

[PACER Logm:

lloh0003

IClient Code: lrruchaldennis

I

Description:

Docket Report

lmnable Pages: 113

Case Number:
I cost:

I 12:Q4,cv,Q0532-GLF-
MRA

110.21

I

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 30 of 55

l '

Ohio Department of Rehabilitation and Correction

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Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 31 of 55

Ohio Department of Rehabilitation and Correction

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EXHIBIT lOA

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 32 of 55 .. -- ·-··--·--
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Ohio Department of Rehabilitation and Con-eci:iOJ

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Bob Tc.ft, Governor

WWYJ.drc.state.oh.us

1050 Free\'12y Drive Nor
Columbus, Ohio ,;3?;
Reginald A. Wilkinson, o·1rect

Kelly Culshaw Esq. Office oft.!,e Ohio Public Defender 8 East Long Stree·, Columbus, Ohio 43215-2998
Ref: Your Letter dated January 16, 2004
Dear Ms. Cui shaw:

Ja_nuary 30, 2004

DtheecleemthbaIelar.i'Tn2Ij3er,ec2sti0po0onn3pd. rinoPgcleetasoss.ethnYeooatuebolivnoednircleyaftreeercetheneicverededqJuyeetotseutrr.iJsaTanl1ufoearlrelyoyw1o6uu"p'alsetkottfeyoro.ruar

synopsis of letter dated

coionhtffhatuemhsreiboacennShr.n.eamlTiAisnhifcueetaselclerosdhtc.heikseosaipacnrraaieicssohpnelaadreceretoihdnafesiunasbceeehadeclnohincptokloa.fctobTendeheepoanmrcihs1tleo.1menleifecrtx.'a1selecsauraamtrrimeopnarbdibeomecrdoint,moitsueetbsenirtuneengdrianfvvogiaraitlthhaheabenldedde,ealttihhveer·\'

isbnorodnmiourimmdeTainlihnsenanodlorirnmrumegasaJcloasnrasecalielnainndetemrcacoitnoinonicsncet.eennrtertardatitioinonnt;h;eoannfoedlhl1ou0wn0idnmrgeidldloimesqialugliiegvsra:alemtnwstsooofgfprapamnoctsausorsofinuthimuiomcphelnotrailde

Sincerely,

. ·'
Copies: Assistant Director Warden, SOCF Chief Counsel

Vincent Laga.-.a Staff Counsel
EXHIBIT lOB

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 34 of 55 '

FOR

THE

1"1 THE LM'lTED ST,o_ TES DISTRICT COURT SOUTHER.:'i DISTRICT OF OHIO, EASTERN DIVIS

IOl\

LEWIS W!LU.-'1.'\IS, JR .. ~nd J0n01 G. ROE,

Plilinti tfs,

Y.

ROBERT TA.fT, REGINALD WILKINSON, and JAM:ES HA VILAN'D,
Defendants.

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BAOF.F-'!.RD..D-'1.CVEITRTOIFFI\ElADRAK"iJE. SST. HHEESAlTOHL.OMG.IDS.T.

1, lvlc.rk J. S. Heath.. af~.er being duly S\'-'O:TI and camioned, he1eby affiffi'l as follows:

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EXHIBIT 11

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 35 of 55

which

3.

tvly qualitications 2re funher dct::1iled in my curriculum \·it~e. J. copy of

is ottilched hereto as E~hibit A and incorporoted by refecence os if fully rewrinen

herem.

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6. its protocol "thiopental ··oancuroniu

The letters by \Varden for letb~l injection Ohio

Haviland uses the

and aaomey Lagana state that as pc.rt drugs sodiuTn thiopema\ (als0 know

sodium" and "pentothal"), pancuronium bromide (also know

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erioab\e.mxdx\y2:'cmlyr.trc.rg.it..h:.he:e-ee.lsencdidsSii:1aa:tpat2s!t~hnoi:.e.rnetdle2gyd.h.rSepcapsaaatIrihruiuiftnomes, rretiatatqswoakwueoiiloctncuhouknlt:lddrldeyaapiTvlobco.(eLtaenbal.Jueeus.tsd,tsct:e:iodun.tmaahmolrpntpo.alIlciuneeimh2ngtllhe.fm.hotlaueyrlelitddhtcomeeiadaraoltdavoess!neksle.:yaye1ec)odvocuaicorsfsaa7inunbesspsdslycoeetsitott2tsdhe.u.imea.mgssatnsndtih\eesutV_tosweoosc.utfthl>pdlcebfIahtldilhepuoeewapr2tnoior.odrcriutveu,laeodrg2cntw.onnlhfondiieo~ou,ysdbkmtorcde2nac,.r.wuia,:neusneesooorideetrtf

~
. ';
'
_j

·opcpeetwffhrpahxr~ie~c~ioict.snissn.raoc.eiu~e.lonon.nsc.encanstiiernaed1bvbtsde3elyilsao.myoosttfenonethnxhtdemeo!pbedlfoeelierIintrsdnsfpriusikirneeifeaaiesnasfrsltoceroeweercmnintl,n"2aa2ieietteSygl.nrino2,moeaad.n.unsb'w1upa~nsdcisbhieehdpciplosaeteelasvceter:rh:teassd:aoo:efct.Jelaur.efygtnlfbshhrwudieoeyesliiert.nJLoedag1zo~rxugneefeesosdtmcsvhhnelltpaeice!soz~ttodiiiitUtoisnto"aOchn.gsad\e,hds:led:iiicrecueos.esepncam'ulrsdteltarhayrvxii.np.eina.u-rxej.t1Rnw.eire.toicymcechnontgugeiitncotthtaisfshrnaoancde,l.ntidrlrhohnetheuiseoiplesrsyrrropoumoomnrrtsfeorotseeosttchehmebooextenifhlblppcwiee2eezer.xirra.elTcsiptlqoe.JioeCuonafnr5nUpcIidwertipreenQno)eis~gcts.fa-nJe,rimtettnehhhostmdoyeeesf

'.

htlptShhoree:ucrnseeioeuswwhteholam1yls4pd2t.ra.h.oSpethieiaimrlbesoBieatf2sweh.wo.dSoonheuudseblsndoyo•nuhpdtmoamliinlenmdyceupwydrr•ehosatvinseble2ieosutruvemcpcerbih.onwniaa2nVc.rs.tSuyoedrtaoeoignsnrgsuiisauniudceammcesryeldripmnestcletaaaoasbsttneksldei;dsnabdtrtoudrhtuthselgietfshtothfayor>tabprlntiehuddeesxoceeoufrcbetsuheeaytex:ioirvconferngutcp,ecoatrIihiunonkenctanitu.rnr.oir-igsjoewaksnnpitwshuof"2oiimtann.rtt

Affid:tvit ofivh.rk J.S. HeJ.th, M.D. h.gc::; of7

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 37 of 55

•,\'

bhfcbp<ue:oel1fniiiuli"nsn<s'lg:aetainsonhntodvycblo,iedsoimtnu!h2JpfPetf:eseoetsurrstJis.n.ser\teg.nvoIinoetnfhdxnappmthr<hoduey:ssnmecedmoauvnrfeo\od0dknbiecieiiucnn2inmeg!gnO"scoihns.ypti2iotnd.h·neisedosnneilrex.gdtnehb~<cood:uflsteidtioodnencjpeeoicpnnetrc\io·oyaetn"oncrtrpeoetralhgo.seatoornTdicnaoihnbflelgliecfuotthisdroeeenegeoxrnoefedcfepuie<ntxo!ig.cn.fnmgocmcfuhireclouid:fn1miecitui:<nJmi:nng!

sidunolitjslertu?rcti.tib.iooSunhnt1oebr)dt.py-r~itoc:1rtto~inipcAgnooenlwbdoudtrphbeeeleirratrsutfoemrosn2rtamtlttjlo:obr.1..e,t0_chf·oioetihnrneccuaresieret2vnc.eSo~rIeynfhinbsstosvheedoisirnbuhtjameessclheftedetlhldifoif.oenl:pife\eiVnt htiJnm:;lt.ulIisqktSunboiodedwifuronmaribmxo.t.~uhdtioTOipnhhetionoiotpaa'eslnl1tiieasqtluh:iJaid.n~l

I I

oauoacinrdnootbf:isdenslttistipsietatttcyaimuhcoiitelnonepeos1uaosim6afsalr.nnaedh(tderchiriis.huilnesioysag.d,pVanseucneci.r..ncn'nadhlacreteeeawolosnvltirsiaeh1aludlslednpcpmtoreeripiezcrsefiosintuivvarhuneistnesregmt~soesf:teiso:fportvrfvaehl1esotdeetoimlhgnselmteiitcnoiasjlctltadsaesmdituttseisiufarsooeoasifpnnnertduitoalaesastnnonnriuinadddonfsofriuhrraiuufgeceobmshis"tnaephpsi:nituet:i-roihrtzr2oagisc.nettotuitniii,cipoomrsnng1ennglep1in.carodteOattpndeiolenr,tpt:ehopt1hw.iahp:ntre:ts"etoeiutrncahbdoeiovi:oSer:sd.w.·ls.ui!ts'hl:'e.nlors:age.us)it)frcfhq.ogba'er.ile.ulcT.teSinathcnrhJlakea2enla.cpytptichlemiuahcnernritieapeepedfovga"eiasecta'nedeodaiddnssl,f

I
1 T ;~

iO2tr(mrmuprr2t1oinchewseheedrl7dohefesysatqore~hamnreeisnuhtcipcaoisoa.aJmhieereiicsoScan'rrnernissdhhcciotennie2ssionus,hhoomspeex1.tetubrv)tinnae71eefixrea.nelserttn-.r.c0ae1!eniucaenetu1t1aeuctahdcdLicodolt.x4soul.tileuOupeJptiontimTgahnAspi?dnseTknltoreeglhorolid)ehain2iianciea.nnfreebcneIhhtejsnjaetrppuoesaeos,~hIrabcsOasircremc:btefv:enreo~.ntam:ti'tiie:gimsblndiwharnoooocrunlrcaeooeeenrueenrfcfohrnefe2sdrr,.olapusoyceoi.etiiotsslstnaocanqfec,Bhnfajrac.n"ioSpauoseea2cuolocldoinoii.fc2(hLymtSmnrteotctO.tr-h:ttsei2tmicewre2·shni.idoiekisoisarln..isug.nprosnaltfrnouosaa·Jioiperudpd.2unenohiieudf(tsLsnuermdatal2~otosope.ronttrlrJf)2mihydtiioret21o.cnd"tLaettr_t.adgtahchhi"oela.s-otlaonmrianelJsh,snS2nsaoi2rtatd.isen·tifhmtgttor1oianoeshOieaunttprftitdirieh.unmhsmsnrahacedeoetmotgeuutni.xroe:ccfolos:a"Qcsfcese.oateuud'ttat,henrasidpidh.soiuoJloTintsrleeupotnrlncoyujneri.r.a:rtr:e2itlirreafel-eilfaIlnodei.e:d·tdOesS"nt.tisthf;.eilernhhttg¥o2ne.fo.atol:ogiameo.hdse2"ouctvvrlh.sromeirtneerIom-uCeplionctaeuuenamqaaBcroooix:ynljnivuinittensumeintmydaricnscsscstaryilgmhutilcoeussuec2ineoibihtoif:baodyo.onaaiagsbfonrannebplugtdisnrcrasotegoetsPemtpbrihonp-nntfnaartrit2hhenitiietohogtsodnuincacutstcviomtieisli,mtlssrmoseneoieuzratncdb.utinitf"r.tes"snhogufaaeoci'd1eroanltr.bscoubiriuacelOdes2oobnsica-p2rB,koedSninekartiptni2puCibenicllinn2.ajnfldooesiegShfeeoo.tu!gnnnruehucdaerfroonsddosit.rpn2isuinmiet,tmfttbnoo.ohnhkaonseltngnnyyyd2neesae"rrt

18. described in

Based the Ohio

on my research protocol, 2 grams,

into leth2l injection, is considerably ]ower

the than

dose of the doses

pentothal described

AfTiC.:J.vir ofM~rk J.S. He::d1, M.D. Pog<.; of7

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 38 of 55

\tnbVertr.haeu.d2'rees\rit~ce:rnsivZnJeti~rs1nusrihcrscgf;woikha~:r;hntwto:iJe-ontnfsahdg:colhaetatpaeitcnrvhx:aBtg.aepihmnlaeesbseridiaengidte.rdknj!ibnerctiifchicsnoirte:cguinl.:olra:tmanrhmteiTetepnyshreje;loeexxrccmpe~ietngiecieddronrudeueientJeicdii.ceno:ldaScnp,olmerrapto:ntihr!nrcdojieaosdcxiirpnnuepicrtistre~lyneseacrng.itsoesisiwncfavecnoiensledf.ludGrdisetcnrreixoeuanspudgueses2enrtqrhiiueieles~sntchnceiaeuoesenst,ssdecetaoniarnnosnt~iddiftanhneluele;buydrnsalsentseorieena~ndadsrlnhtyeehosul~eotnpuh-oeseualenstscediuevtsfim~tfnbot~e~vo.~fr

tp\svriettshheoenurtre2bnt3oye. eledanlcesksTusihrnersg·.utfihifnnaeftr0i:.rn:t.mhngye.ataiposlsnaucrpearmnocevenidt ethdoZJftinthtcheleudinneresrc8ne.vosesnaexorhyuasuestcqiau·t~ihp·eemte"erenqtcu2ii.lnpnmdbeesnutppelpirlsfiteo''s,rmaanerdde

1
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ecilnpnc'..ixh:lro!e-tOo1iia2dE;srmH.;·t.:zsr:b1-peb2m:sCde:e.~locsy2'areii,fcn4f:daio:yit.c.dnhri;omrlJjreeiene.idtsnccifkoittlwTioilsnsnoyhw~yfsno2eebi..rrTSrryieee.snaIIvgogtlnpf2ciuaoiyeei.rsltcrwoiad.miotm?tnienonaldtoyerrrgt,cfiwhoopstaltepinhrehntnoiteheh1nopcwiilweh.no!lshrastnhel2rveyteadteb-xtvruthaeIuaenpsecgnb.ehurisoodnato,tuuivehfooistdeennnOtctinsuhlaupheeu~breicrditooennehiic2'ngsnese.asg,StdbarluotatuerohsnhyvtreueahoeetbasesnsolleqteOofoiiuundnhdptisehjpeicsesoegmotcib'arzcsteeeatinkenqeogpesstunrdoioohotppfhtrcafmromaesoitdnefeccbiujnczheueeirtudaicieecdsvutnnseaiseer,ol,cesdn=tecdehsptte:ishpa:rs2n.Ouetot.ch.apr!vlit..io:-hldSnydasertneeioyrtpddsoer,

plwph:btpcrrt:e.rhhreoruerahtoeaveogihnmienctenacadoprrtgiareileeinceendndcimoirokgineeunsn2labsnborj2g5dit,leeec.nlnae1.ecideo1tntitqrtdhhanrni•iuiaerdoaPeltsec.aav.ldne.x:wtt.iemT"lreipnTlipbannhlhivsaeyirytsojoofnreeoetoouni:eoriactewnrsoiyo~dprnnntgoicitc.cfo~or,nhoui:.oe;en.n:i:feell:c,:doicsdxfmdnpleen2trpg.tsreprhreay.sue'et~pe>elt;ordprgii>h:ccriaocis:eabieOabef.e.ncr2nd:rlLaoshr.ceucStilaeiJ~Nocelireooanyneai,d·tostnligpsheo.mllfob2lpcxaet.unee.en:hheup.btsqa""h1eacsieblomuScoartierblusiaflnteyptfkayric2tosmciiot.ddroertnn.eceiheoe,jnrfmosdeeginaweceusetcdrnte:2rt.un2net1eid.ioes."citeradol!cesrbileenfphlononoenottsrgfhhuttriotupf.henmieatwcpratraattoheipolOelianspdtet"dlrho,hgirlucdmiee.cefci.cur:s.oottaov'eea"thh"or-'lre.Llssfeae,td!rn·goilc.sso,ftl.rnfe.leiei(woeceoirpntpgrntaahenrBjeae.tertba"sr:iiracilllenoafcssetIpeovntiinieay2ronre,cdtlo.mnjnhtbiote.cvrh.oel'oircJcepeearnuintsudperitgisnomcurosamociairn.esar'slneefc1tcutyitdfyceaucciitoeuxntnourirmanserreegctb.sen-nacl,eesidlsacuctdfaesaocotrytbiatiniowecfafonloocomsatendnneeasrfl,

'.

csmpdotreaenogtdper~iesecneradlaly2ons6ddfht.o;omactulhtenloedderBidcfbsaepaemsdleepeecdcrrdiaeeaiolrslcitnuazagmliimonneovgtydyrerivrtnnthehemostaa1eeten,zrtneirhnstgce,taihhvrlaeyeeirs1ntnihdptooar·tllbohomfaeigensyesjea,tesdphciipoottioandoirnassnelnommpitfnryyoaleOcbottespThhdeia2innuoliicnr'oieseinnnjOgeoebxhcfaaetisinoacoeudndectimeeouonxpnsntpelroapedaylrrioebrereecyonaesicsdveceouarnrfreaeoiaaos,rbtueliaaesst

Afiid::vit of Marl: J.S. H:::1rb, M.D. P:1ge 6 of7

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 39 of 55

nedically unaccept:J.ble risks of inlltction during the leth"l injection procedure.

excntciating

p:1in

ar1d

suffering

on

mn:2 :ts

Fu-RTHER AFFLA.?'H S..o.YETH NAl'GHT

' I

1 C.ec'tare under penally of perjury that C\·e~y1hing I have SZI!C In the :J.bove docume~i:

l
.}

c<.ptioned AFFID..WIT OF iVI.A...R..K J. S. HE:HH, 0-i.D., A;-.IESTHES!OLOG lST is true to the best of my knowledge.

BO.A...R.D

CER.TlFlcD

1
J

"l

Mark J. S. He:e.th, M.D., AFFlAN 1

j

1

l

Swo!7l to 2.lld subscribed before me on this _ _ dt:l:,· ofDec:mber, 2003

] j

Li< Pascale, J.D., l"OT.A...l\.Y PUBLIC

'_.)

Aflu:i::Jvt! of Mil:-k J.S. He:nh, M.D. '?::Jge 7 of7

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 40 of 55

Curriculum Vit2e

1)

Cate of preparation: October 6, 2003

2}

Name:

Mark J. S. Heath

j

Sir<h date:

March 28. 1950

Birthplace:

New York, NY

Citizenship:

United States. United Kingdom

3l

Academic Training: .

j '

Hzr;ard Unrversity

S.A., Biology, 1983

University of North Ca;-o!in2. Chaoel Hill

M.D .. 1987

1 •

MeCica! License

New York: 177101-1

J .::!,

Traineeship:

}

i 987- 1988 !r,\Stilsh:p. lnierilal !V1edicine. George V\'2shingt:)n University Hospital,

VVashingtor., DC.

1
J

~~sss -1991 Residency. Anesthesiology, Cclurr~bic College of Physicians 2nd Surgeons, New York. NY

1991 - 1993 Fellowship, Anesthesiology, Columbi2 College of Physicians 2nd Su~eons, New York, NY

5)

Board Oualiiicaticn:

Di;:;lomcte. American Soard of Anesthesiology, October 1991.

6)

Military Service:

None

"f)

Professional q~,;anizations:

_j

American Society of Anesthesiologists

International Anesthesia Research Society

..·--, I

Society of Ccirdiovascular Anesthesiology

5)

Academic Appoin.tments~.

1993-2002

Assistant Professor of Anesthesiology, Columbia University, New York, NY

2002- present

Assistant Professor of Clinical Anesthesiology, Columbia University, New York. NY

9)

Hospital/Clinical Appointments:

EXHIBIT

•\:
3

P.

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 41 of 55

i 0) Honors:

i 993- present

Assistant Altending Anesthesiologist. Presbyterian Hospital, New York. NY.

!>/~agn2 curT! laude. Harvard University

Alpha Omega Alpha, University of North Carolina at Chapel Hill

Fiest Prize. New Yo;< Pr:sentations. 1991

State

Society

of

Anesthesiologists

Resicent

i 1) Fellowship and Grant Support:

GForaunntdaAtwioanrdf.orPArinnecsipta!llesIniaveEsdtiLg:aczto.trio. nfuannddinRg e7s/e9a2rc- h7,/9R3e, sSe1a5rc.0h00S.tarter

Foundation for Anesthesia Education
Award. Principal Investigator. funding

and Research Young
7/S3- 7/96, S70,000.

Investigator

NIH KOS "Inducible kr.ocl<out of the NK1 recepto('

1:
1

Principal Investigator. K08 funding ·,2/98 - i 1102, S.c,.31 ,94 7 over three ye2rs (no-cost extension to continue through 1.!130/2002)

NlH R01 "Tachykinin regulation of 2nxiety and stress respo~:ses" Principal lnvestisator, fundinQ sr:/2002- 5/30/2007 S1 ,2e7,000 ovar 5 years

1

Jj

12) Depart.'T1ental 2:--.0 University Commir.ees:

Research Allocation Panel (1996- 2001)

Institutional Review (2003- present)

Board

(Alternate

Boards

1-2.

futl

me!'iiber B02id

3)

13)

tlec~urer and clinical
Columbia Universi:y

teac!ler: Anesthesrolos-y Restdency rrogram.
and Presby:erian Hospital. New York. NY

Advanced C~rdiac l.:ife Support Training

Invited Lecturer:

NK1 receptor functions University" December 1994

in

pain

and

neural

develooment.

Comell

Anxiety, stress, and the NK1 receptor, University Department of Anesthesia and Critical Care, July 2000

of

Chicago,

ChicagoA, nDeespthaerttimc eCnot nosfidAenreast.itohnessioa faLnVdACOriItmicapllaCnatarteio. nJ,ulUyn2iv0e0r0sity of

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 42 of 55
NKI receptor function in stress and anxiety, St. John's University Depzrtro1enl oi 1•/iecicinal Chero1istry, lv1arch 2002
Making a brave mouse (end meking a mouse brave), lvll.Sinai School of tvledicine, May 2002
Anesthetic considerations ot LVAO implantation. Recurrent lecture ot Columbia University LVAD imp!cnt2tion course. 14) Grant Review Committees: None
j '
J
1 j
] -

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 43 of 55

iS) Publications

Oriainal oeer reviewed articles

' '

• Santarelli, L.. Gobbi. G .. Debs, P.C.. Sibille. E. L.. Genetic end phar;nccologiccf disruption of neurokinin 1 related behaviors and incr:ascs serotcnergic iunclion. 1917.

Blier. P .. Hen, R., recspi.or function Proc. Nat. Aced.

Heath, M.J.S. (2001). decreases anxietySci., 98("). 1912 _

,
f
j

King, T.E. develo:tma:nt of Ne·~ro;eport:,11

'.Heath M. nociceptive (3), 587-91

J. S' .. Debs, P, Davis, MB Hen. R, Barr, G. (2000).
responses in neurokinin-1 receptor knockout mice. .o authors contributed equally to this work

The

l

Heath, M. J_ S., Lints. T .. Lee, C. J., tachykinin NK, receptor by fioor plate cells Journal of Physiotooy ~e6.1, 139-148.

Dodd, in the

J. (1995). erc.bryonic

Functional express1cn otthe rat spinal cord and brainstem.

iJnotruarcn2Halieluaolctfhr ,NcMoe!u.criJuo.roiSlh.i,:v-1Wsbioootmlhoao1cv1ke7uM2ro(.n3Ds)..a.inM1d9agc2lD'-.ae1l r1cm9=o7llst.t,~rAo.r.ilB.th(e19d9o4r)s.alShuobrsnaonfcteheP

elevates soinal cDrd.

McGehee, D. S., Heath, M. J. S., Gelber. S.. DeVey, enhancement of fast exci~ztory syncpt"1c transmission Science 269, 1592- 't6S5.

P.. Role. L.W. in the CNS by

(1995) Nicotine presyn2ptic receptors.

st(vihl9oor9c,9;kle)..sCRDirec.v-~eJlriesatcaioil gnba.v-nJVuJ2.i2SCQcu8;1lrlie0ns0as(n3ine):2oS2f, 6iCn-9thr.aecntaJb. lHe ehaytpho,teM;.;sJio. nS.i,nOthzeMla. tOe l

iver JA. Landry DVV. phcse of her:1on-h2aic
-

--,

LaTurco. J. J.,
and gluta1112te 1298.

Owens. D. depolaiiz.e

F.. Heath, M. J. S., Davis, M_ B. E., Krigstein, A. R. (1995). cor',ical progenitor cells and inhibit DNA synthesis. Neuron

GABA 15, 1287-

.;

snKueyburoprzooinpssuA.la.,JtioGounorlondfsaAtletvoilnPf...PPA..hrAv:.:s,cieoHplteooaort&vh..,4rMt8._5~.sJ2e.,nsS3i.~7,:3zMe-da3cn8De1eig.r,mhb-:Oo•rti.ng.~.:N8M. D(iAS9r5e}c.epCtoarlcsiuinmraetndtroyrstharlohuOarhn a

_j

MMpacerGcahfeoahlnieciesum,laDro.cSfee.l,lsxA_trladJceoerusllrbunelaarrgl ,CoMfaP'.'-,hreLviscuei,opK!to.o-oPrv·s.:•f1H5ms0uu2lia,n1tge, d,3S1h.o,-rH4m4eo.anteh,reMle.Ja.sSe.,frToammsirh,eHe.p

(1997). thyroid

KJNB_aoioSowl..oy,JgaB.r,ircoeHadtot,l.uRCJc..hk,, e,GSmKtre.ei,rsenFtn,rabvDne,.2rg6Y(19,.,9,S9H2_4,a5)KE.1{u0hCan6nhe-gla2,,r5LaW,1c1Lt.eJi9gr...iuzLtateit,iuoSnn.go,Kf.D,a.KWnaoy.v.toeHnl a,tuyMmw.aoLrrd.-,d, GeJr.riivRkes.d,chKceyisittoie,l<lT,.i.nW.eC...hJHaobeuoartt,nhJ,a.Ml, o. f

CcDuyottdaodnc,ehJoe.um, sJicasahelrn,esnCad.tiEop.n,h.HyCsaiomolldoiltgoSincoa, rlPinp.Naro.,pHeHarertibaeosthro,SfMvs.meJn.oSso.o,sriyMaaaonttfdhQedwuo,rasWnatl.iDtha.ot.irvJneensBeseuiolrlol.onTgs.Myth.48;t(,1t69ra88n35s)-m.69it5.

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 44 of 55

c.. pHe-~y,dnnosetl<hsye,,lRiOa..lJ0.c..a.NllHaWekaae.tihbY,e..iiv-P1L.iaJa.loSa.d..HeL.a.CwO>oszco.ienHs...CJ0o.A.u..r.WnSca\elgrnonef.r.DCD.lliv.nl.DicH.a.ylMplnoavxyeiaasd-1ian'1sd.oucTct.eioNdn.e.9xJ7oo(c2hy)n.tso~os9nis3. -oRi.500.

Case reoorts

none

Rev'1ew. chao'i.ers. edHori2ls

Heath, M. J. S., Dickstein. ventr'1cular ass·,st device recipient.

M. L. (2000). Perioperalive management Prog Cardiovasc Dis.;43(1):47-54.

of

the

left

)
J
.J

Dickstein, ventricular assist

M.L .. ivlets B. Heath device implcntation.

M.J.S. (200CJ). Cardiac Assist

l'.nesthelic considerations Devices pp-63- 74.

during

left

J

Heath, M. J. S. Bioloov 5.9, 997-999.

and

Hen.

R.

(1995).

Genetic

insights

into

serotonin

function.

Current

,

Heath, M.J.S., fvlathews D. {1990). 3, 34.:::.-348.

Care of the Or~an Donor.

Anesthesio!oav Reoort

J •

A

n

es

Heath, M. thes·lolocv

J. S., Basic physiology and p~armecology Clinics of North America i5(3). ~73- 485.

of

the

central

sy:'1apse.

(1993)

Abstr2cts

Heath: ?v!.J.s.~ Davi;, tvr., S2ntar:lli
blocks so;:re:ss-evoked induction ofc-F Congress A-15.

L., os

Hen H. (2002). G~::Je targ:::ting of the NK.J r:::ceptoc in the wu.-ine·lcc•.:..s coeruleus. IP2-..S .A.Jntricz.i1-J2.p2.n

He~th,
blocks 95 :.-".-3

M.J .S., Davis, M., Santarelli L.,
si:ress-evoked induction of c-Fos ll.

Hen H. (2002). in the murine bc

Gene targeting of the NKl receptor us coeruleus . .Anesthesiology

He~th, !YLJ.S., Receptor in the 93; S-212

DMauvriinse;' ML.o,cSuos..'1Ctaoreelrlui lLe.u,sHaenndHD.or(s2a0l0R2)a.oEhve;:Nceuscslteou"so. Af Snuebssthtaensciae
.

P and NKl and Analoesia
-

•.

1

Heath, M.J.S., Receptor in the 93; S-212.

DMauvrisin,eML.,ocSuasntCaoreelrliulle..usHeanndH.Do(2rs0a0l2R).aEohxpereNsusciolenuso.f

Substance Artesthesia

P and NK1 and Analoesia

-

AeHxnepaarlteghse,ssMiioa.nJ9.o2Sf;.,cS-S2Fa3or3stl.ainretlhlieL,paHreanve·Hn.tr(i2c0u0la1rjnTuchleeuNsKo1f

receptor is necessary for the stress-evoked the hypothalamus_ Anesthesia and

mHeicaethla, cMki.nJg.St.h, eSaNnKt1arreellci eLp, tDore.b.s'lnPe,sHtheensiHo.lo(g20y0903):.

Reduced 3A A-755.

anxiety

and

stress

responses

in

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 45 of 55

rle2th, 1\U.S., King. T., Debs, P.C., Davis M, Hen R.. Barr G. (2000). NKl receptoc aene
disrup~ion clters the development of nociception. Anesthesia end Analgesia; 90; S315.

Heath, M.J.S., Lee, J.H .. Debs. P.C .. Davis. lvL ("1997). Der,neation of spinal cord glial subpopulations expcessing the NK1 receptoc. Anesthesiology; 87: 3A; A639.

Heath, M.J.S., MacDerClolt A.B. (1992). Substance P elevates intracellular calcium in dorsal horn cells witr.. neurone! and glial properties. Society for Neurosc·12nce Abstracts: "18: 123.1.

He2th, M.J.S., Lee C.J .. Dodd J. (1994). Ontogeny of NK1 receptor-Eke immunorcactivit'/ in tho

rat spinal cord. ~-ociety for Neuroscience Abstcacts; 20; 1'15.16.

· -

He2th, r'li.J.S.,_Berr.1an M.F:(1991) tsoflur2ne rTlOdulation of c2icium channel currents in spinal :ord dorsal horn neurons. An_esthesio!ogy 75; 3A: A1037.

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Ohio Depari.ment of Rehabilitation and Correction

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Ohio Department of Rehabilitation and Correction
c"'o
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Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 48 of 55
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Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 49 of 55

AfFIDAVJT OF CAROL WEIHRER

IN THE COUNTY OF FAIRFAX

THE STATE OF VIRGINIA

l

and

BEFORE ME, the undersigned authority, did having been duly swore, did state upon her oath

personally appear tile following:

Carol

Weihrer,

J '
l

eI"tezhxMnxwippenayesekstrrlniillueeeuannnsmciacciadbeeelldwyyieso,awtCusohheaacamardatoronm,hlvap\iienmVse.ircesacItoitgeehmibirrnveeueeedrr..ntaoOTtInuhuldbtienektfdeheekeexetnrlhpowbeeewrevrafnnieiierntrenayasscs1ncehoArie\afnnvymhgaeeessbtlothllwh.ipaneoeItgstrriwaswadteairaAosutshnwggatsohainniwernedwgemnerhaeooetsinshcsnt.h,dotietunfrureriwlfilnffhgeygiciectnthnhigvee,Iersa.twuolIrragttsuhereraoyrbue,lfesboutroet

To the best of my knowledge, all of the foregoing is true and correct."

Signed:

I

Carol Weihrer

President and Founder

Anesthesia Awareness Campaign, Inc.

http://wv,w.anesthesiaawareness.com

'':

SWORN AND SUBSCRIBED BEFO I

, ..

EXHIBIT 12

•

ThCe Naseew 2Y:0or4k-cTvim-0e1s1>5N6-aGtioLnFa-lM>ROAn

DeaDthocRuomw,eantB2a-tt2le

Filed 12/08/2004
Over the Fatal Cocktail

Page 50 of 55
Page 1 of3

Q]Jr ;:ir\tl 2Jork _Q:imr.s
nyt1nles.corn

PRI~T'S~·FRI£!1DLY FQC:,~.l1GA,R!)EN STATE
SP"'""SO~t:J er I+CIWPUYit'IGIHTllU.Te'.:l

September 16, 2004

On Death Row, a Battle Over the Fatal Cocktail
By ADAM LIPTAK

-.l•i

FtsheerinesadRiocAehf.NetOhmKrbeiFsceeOarclRvhueTesrm,sedKiocniyanl.ts-hroaiEnatdtdsowpsrhaairlintdmg, Lt-eo.vasHetbnoaaiprnrpbgheiitrisu,nrhtah1ete9ae9rltta9.osstmamiadaknehehtolimoboekueenxdceotccrutasntceqidouuiilns,atsthhiaesnnsetaaxtpeeac, rutaotlioyokznien1r2gpmaugmienpnuett,edasantdo

I

dtThiheinedg.nsIe,txtshtaamidt o,Mr"nrW.inHhgo,asrapoesetrva'seterhhmeaaesrdttihwciaeslisgehhxaealdlmn4ion2te0rsguprfeafremfrosermatenerdndatalhnafitarehu.et"owpsays.wSehaerinnogteadc, laomthosncgampualnayr

other when

he

I

The examiner's report also drawn from three places in

determined his corpse.

the

levels

of

the

lethal-injection

chemicals

in

Mr.

Harper's

blood,

I I

hbmHNauaoelttrawupnt,nheinraeasbgiwrlttaecwhsletoioetoonomrtttthshuo'eervererextdKweocteorounstdtdpiuoreecuanakgtskhys.a.ssIiTnnucmhbarejuaeysetcueltsiseaatdynffaidhltcehieumdanetiuxtntosheueCcsauuidlrtfricpfuouougnicnt,amiCtsthiheooemanuinrretatlnnathtodw.ermyseeeaairknsreisnAahguyimgptuahuisontns,cewtohnhneuisylmechibhoaeeuvrsewsdaapissrdkowenvdioedtatehwjaauotwdrMkga,kere.to .

i

eidKOtxrsepuepnplgeftosr.ut'nsceekfanyfstessacu.ot'1rsdef, dtaahnbtehdoedujmeut ad3ttg0hheaopsttethhnhaeaevrltefsyitrdashtiteassmdvreiiunsfgsireleewdcdaemscnhatcnayelyrelteaaonrisfng.tehtBsoeutmpotrtotohhdnoeuspctehreorcuecaeens-deccsuohrnweasmlecrgiieocruoabsulanncsedeosdsms oobarninnbdsaeptpcieeoacrunuhslaueapstmesiodebndeinaiclbeaotlhuatlthe

WdTehhbeaaittnehfaoodvrmebraettfhiooernehiubnmetehanneoiHtnyalyorpfaethrtheaeusottroaepntisdcyaarladncldoentihncaeslrinimn, jitelhacertyidocanotanchtfereonmmdi,cttauwlrson, sloaotwhueytretosrstabfteeosrprtrhoadeviacibn.almlelyaftaeccsht.ahnegreessathye.

David Smith, an assistant response in court.

attorney

general,

declined

to

comment

on

the

suit.

The

state

has

not

yet

filed

a

There is inmates

no serious dispute that unconscious for hours.

the

first

drug,

if administered

properly,

should

be

adequate

to

render

"If we have a working LV. and that there is no suffering," said Massachusetts and an expert in

the Dr. the

MerifgfaehrctktdsDrouegfrssdhrawurgeistzg. ,i"vaTephnreoinrfeetcshisepoerriiogthfsetalnoferidssethmr,eesIdicoicaloanlglayybasaotbltsuhoteleulUtyenlgiyvuseaorrsauinnttyde.eo"f

But doctors are forbidden to participate in executions in Kentucky and many other states; and prison

file://C:ITEMP\The%20New%20York%20Times%20%20National%20%200n%20Death'

6fi-•Ex•HIIIIII!IBIIIIIIT~.
b

.

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•

ThCeaNseew2:Y0o4r-kcTv-i0m1e1s>56N-GatLioFn-aMl>ROAn

Document
Death Row, a

2-2
Battle

Filed 12/08/2004
Over the Fatal Cocktail

Page

51 of 55
Page 2

of3

personnel are generally untrained in preparing and injecting drugs.

bpfaIinytorswCaptndoedrlearusrufom;fgnipbdnpriaeoravolbiUplitenensmtrueilvysnpe.dpwrAiosniirtmgtthyino,tiognnwtgutrrhsaoteevhteeeKitnmtehof,onaurDttsutprcth.uukeHbryrpeeeosian;wstemhaesnrawedoterfctsohos,tueeuD,bnprsato.ltreasMesnssimcaberwiiklsaiattJbayy.uksSstehfe.soa.H"ritnpe"amtrhitshieox, ndianrngpuegatrhnsmeeosandtynhrueeblgsei,toodwlioflhaugiiticleshdttowiosdhrseodtloiitvvreeeeadrrctehtahdseesa

rpEeaamrralailiyenrzsecschoathnllesecnsigkoeeuslsehtbaaulvtmecaufonsccnuloestsemdbuootvnedtohoeers ssnpeoectaoknafdafsedchrtuetghseuinfbftrohaceianttyeospr.incaelrvseesq.uAenpceer,spoannicnujreocnteidumonblryowmiitdhe.itI t

Nineteen states prohibit the chemical in the euthanasia of animals.

i I

'They couldn't
inmates, Ralph Bowling killed

kaBicallozmeupaylneddoaTngdhHohumunrattsetrhCte.hiBirsoiwnwfaalyinntigns.oKMnerin.ntBu1ad9z:9ye0,.k" isllaeidd

Ted Shouse, a sheriff and

a a

lawyer deputy

for the two in 1992. Mr.

dacSanehpoadepmtmehaea.circjcuaseldeprg"teasenbeserlevhbeatusvotenscoosoaculiiedledgtytihit"niemybthayaetremoerpaytusrorkmpuinoabsgslkeet"dhineibntyeseontxusheenecdpuusastiieanon.nodsLfspaaesnatnid=ycieusearsuro,snteahiduaTmtoeonnbflntyreeontsmosaeimcdeceajo,ukmwdegphtehaicnewhmyrmoe"vtameeknotehrspaeatthpitneahlleieanstmasbaltee

osotB"hohntuhidyotReippurtoohemcbtnehhetjetearuhmttliid,coGigmacp.elaea,ClnaksEnoteaddleslli,edmihennextemhHetreaaceoiptcubrehetsbweyisvdusoeinLricdkncyao.fllTe,in"ressonctbfinehoCecausadhssuaerswneeecnhietdnihrleeye2re0tfChdi0reo0shut,pirmdtathrrieaunulgjynNu,zcdaaiongsnshgehsvcowaiirglortleo-euant,sects,tadainpnioddrgeosopbvbriaetojrsdebbcwtaithtbiuoaolrrtynaktst.khetiAeolclnfeatidlhvaleeeuhdticgomhsrpoaesbmdmyeisiufccomooarnlfedwtuhecerteed

.--·

cstKBhtooueenpntsdpttcueheiacoedtkuhlhyesirvswioenwhlhmeiolaialefrtlitesh-.soneTadsthsiaeuuyesmf.hvfUoeatcrhrseyaiinotisengpadgeysnantttanuhandmeldrffbaeeoreluditrsnsstdahsaeur6ienb7pmabMpiainerstr.teccedHaedunaobstrnepytodetahrb'Iepsy0rtb0ohtohsrpedeeeecyrtuhcdtteeiiirflondlfntsedcraeerhxundapgtinef,bcfrpeeltoroiteonthnadasottsstsaiMhtumoemrrrp.yclH,ceahlssaa.lerowspr,yeidleraerwws, aywfsoehrristchfheor

loDintre,.rs,Daweidresrthehwepiolteztev,nethltsieaolplfyrobtsareorbcuuibttuliironangte.exfopuenrtdwinhoMdre. vHealorppeerd'sthbeodsyta,nwdahridchs

that the Kentucky inmates now varied from 3 to 6.5 milligrams

rely per

w"Thhicehblaoboodutle5v0elpesrhcoeunltdobfepaeoloptlehiagrehecrotnhsacniosuesveann,d"

Dr. Dershwitz 50 percent are

said. That is the unconscious.

level,

he

said,

at

whHeeeakrstanibodlwoho,edthnmaeteandyeuodmrmbmeoraryiesnijnouftsothruamvnaeitnibtoeenrepanrbeootabubttalihen.o"ewd

the and

autopsies were processed in a

conducted. "The level of 6.5 for state-of-the-art way," he said. "Until

Executions in two examiners after 23

other states executions

ihnavSeouatlhsoCraarioselidnacoanncder1n1s.inANutoorpthsieCsarwoelirneac. oUnndduecrteDdrb. yDsetrasthewmitezd'sical

fi le://C: \TEMP\The%2 ON ew%20Y ork%20Times%20%20National%20%200n%20Death%2... 9/20/04

,

ThCe aNseew2Y:0o4rk-cTvi-m01e1s >56N-aGtiLoFna-lM>ROAn

Document Death Row. a

2-2 Battle

Filed 12/08/2004 Over the Fatal Cocktail

Page 52 of 55 Page 3 of3

9cst0oannpddeearmcrdennse,t.dthImne efKnoeuwnr,teuirtcekwcyaosinnsImc0ia0otuepsse'rtlhcaerwonuty.gehrsousatyt,hethirereexewcaustiaon5s0.

percent or greater chance In one of those cases, the

that eight of the likelih';od was

Dr. Dershwitz noted required two grams.

that

the

drug

is

typically

put

into

500

miliigram

syringes,

with

four

needed

for

the

"One of the Some legal meant to be

possibilities is experts say the painfuL

that instead debate over

of injecting four lethal injections

of these misses a

scyrruicnigaelsptohienyt-intjheacttesdomoenep,"unhieshsmaiden. t

is

·c"hIosentschtoietnrudeteisomonmnaele?dt"hhiaanssgkeisndhteoRnrottibooefnrtatolBlrytlueicrnekf-leirca,tepadanipnroafufinels,dstehoear tachto-Nntdheewamt YcnaeondrkbdeLeasaecwrcveSepcsthaabolqoelu.mic"kMorbayullatynpsaawnindefruilsdyeeast.h.W" here

i I

sWayhathteevtehrrtehee-crheeamsoincaflocrothmeblionwatiboanrbisitnueraetdelelessvleylscoinmMplri.caHteadrpaenr'ds

blood, risky.

opponents

of the

death

penalty

Veterinarians, by barbiturate called

contrast, typically euthanize sodium pentobarbital.

animals

with

a

single

large

dose

of a

longer-acting

BSuarsraonnB, raellfiueste, dwthoosaalysowrheeptrheesrenthtse Mvert.erBinazaeryamndetMhor.dBwoaws lminogr,eahlounmgawneit.h a third lawyer, David M.

"It's not our job to try to figure something that is not cruel and
lawsuit.''

out how unusual

ptounkiislhl mouernct luienndtesr,"thMesE. iBgahltlhieAt msaeidn.d"mIefntht,eywecowmilel

up with settle this

! j Co;:wrioht 2004 The New York Times Company \ Home Privacy Poncy \ Search \ Corrections ) ~ J::j!tlQ J Back to Top

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file://C:ITEMP\The%20New%20York%20Times%20%20National%20%200n%20Death%2... 9/20/04

-· Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 53 of 55

-

2000

Report of the

AVMA Panel on Euthanasia

.
j

JA.VMA. Vol 218. No.5. March 1. 2001

'· .

EXHIBIT 14

Repon of the AVMA Panel o~ Euth.:ll'l.!sia

569

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 54 of 55

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1
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580 Re;>ort of the 1-.VMt.. Pane! on Eult12.nzs!a
JAVMA. VOl Z18. No.5. Ma1ct'l 1. 2001

Case 2:04-cv-01156-GLF-MRA Document 2-2 Filed 12/08/2004 Page 55 of 55
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JA\'MA. Vel 218. No. 5. f:'J~rch 1, 2001

Repon. or the AVMA P~nel on Euthartasia

581

 
 Case 2:04-cv-01156-GLF-MRA Document 37 Filed 04/14/2006 Page 1 of 16
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

RICHARD COOEY, et al. Plaintiff,
v. ROBERT TAFT, Governor, et al.
Defendants.

Case No. 2:04-cv-01156 Judge Frost Magistrate Judge Abel

Jeffrey D. Hill‘s Emergency Motion for Preliminary Injunction

GARY W. CRIM (0020252) 943 Manhattan Avenue Dayton, Ohio 45406-5141 (937) 276-5770 Trial Attorney for Jeffrey D. Hill
and
DAVID BODIKER (0016590) Ohio Public Defender
TIMOTHY R. PAYNE (0069329) Assistant State Public Defender Office of the Ohio Public Defender 8 East Long Street Columbus, Ohio 43215-2998

Case 2:04-cv-01156-GLF-MRA Document 37 Filed 04/14/2006 Page 2 of 16

Cooey et al. v. Taft, et al.

Case No. 2:04-cv-01156

Table of Contents
Table of Contents.................................................................................................... i
Table of Authorities ................................................................................................ii
Jeffrey D. Hill’s Emergency Motion for Preliminary Injunction................. 1
Jeffrey D. Hill’s Memorandum in Support of Emergency Motion for Preliminary Injunction ........................................................................ 1
I. Introduction ........................................................................................................... 1 II. Background .......................................................................................................... 2 III. Discussion or Preliminary Injunction................................................................ 3
A. Mr. Hill has a strong likelihood of success on the merits......................................................................................... 4
B. Mr. Hill would suffer irreparable injury without the injunction................................................................................... 8
C. Issuing an injunction would not cause substantial harm to others............................................................................ 9
D. The public interest would be served by issuance of the injunction................................................................................... 9
IV. Discussion of Schedule ................................................................................... 10 Conclusion ........................................................................................................... 11
Certificate of Service ............................................................................................ 12

Emergency Motion for Preliminary Injunction

Page i

Case 2:04-cv-01156-GLF-MRA Document 37 Filed 04/14/2006 Page 3 of 16

Cooey et al. v. Taft, et al.

Case No. 2:04-cv-01156

Table of Authorities
FEDERAL CASES
Blount v. Societe Anonyme du Filtre Chamberland Systeme Pasteur, 53 F. 98 (6th Cir.1892) ............................................................................... 3
Blue Cross & Blue Shield Mutual of Ohio v. Blue Cross and Blue Shield Association, 110 F.3d 318 (6th Cir. 1997) ...................................................................... 3
Chabad of Southern Ohio & Congregation Lubavitch v. City of Cincinnati, 363 F.3d 427 (6th Cir. 2004) ...................................................................... 3
In re DeLorean Motor Co., 755 F.2d 1223 (6th Cir. 1985) .......................................................... 3, 4, 10
Gregg v. Georgia, 428 U.S. 153 (1976) ................................................................................... 9
Hope v. Pelzer, 536 U.S. 730 (2002) ................................................................................... 9
In re Kemmler, 136 U.S. 436, 10 S. Ct. 930, 34 L. Ed. 2d 519 (1890) ................................. 9
Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S. Ct. 374, 91 L. Ed. 422 (1947) ...................................... 9
Morales v. Hickman, 415 F. Supp. 2d 1037 (N.D. Cal. 2006) ................................................... 5, 7
Performance Unlimited, Inc. v. Questar Publishers, Inc., 52 F.3d 1373 (6th Cir. 1995) ...................................................................... 3
Roth v. Bank of the Commonwealth, 583 F.2d 527 (6th Cir. 1978) .................................................................... 10
Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353 (4th Cir. 1991) ...................................................................... 9
Sandison v. Michigan High School Athletic Association, Inc., 64 F.3d 1026 (6th Cir. 1995) ...................................................................... 3
St. Thomas-St. John Hotel & Tourism Association, Inc. v. Government of U.S. St. Thomas-St. John Hotel & Tourism Association, Inc. v. Government of U.S. Virgin Islands ex rel. Virgin Islands Department of Labor, 1999 WL. 376873 (VI)................................................................................. 9
USACO Coal Co. v. Carbomin Energy, Inc., 689 F.2d 94 (6th Cir. 1982) ........................................................................ 3
Washington v. Reno, 35 F.3d 1093 (6th Cir. 1994) ............................................................ 3, 4, 10
Wilkerson v. Utah, 99 U.S. 130 (1879) ..................................................................................... 9
DOCKETED CASES
Brown v. Beck, et al., No. 5:06-CT-3018-H ................................................................................... 8
Dennis v. Taft, et al., No. 2:04-cv-00532...................................................................................... 8

Emergency Motion for Preliminary Injunction

Page ii

Case 2:04-cv-01156-GLF-MRA Document 37 Filed 04/14/2006 Page 4 of 16

Cooey et al. v. Taft, et al.

Case No. 2:04-cv-01156

Dennis v. Taft, et al., No. 2:04-cv-00920...................................................................................... 8
Hill v. Mitchell, Case No. 1:99-cv-00382 ............................................................................. 2
FEDERAL STATUTES
42 U.S.C. § 1983......................................................................................... 1, 9 28 U.S.C. § 1292(b) ................................................................................... 1, 10 FED R. CIV. P. 65(a) .......................................................................................... 1

Emergency Motion for Preliminary Injunction

Page iii

Case 2:04-cv-01156-GLF-MRA Document 37 Filed 04/14/2006 Page 5 of 16

Cooey et al. v. Taft, et al.

Case No. 2:04-cv-01156

Jeffrey D. Hill’s Emergency Motion for Preliminary Injunction
Pursuant to FED R. CIV. P. 65(a), Jeffrey D. Hill moves this Court for a preliminary injunction barring his June 15, 2006 execution by the defendants. Or, in the alternative, Mr. Hill moves this Court for an order lifting the Government-sought stay and setting an expedited discovery schedule and a trial date prior to the execution date.
Jeffrey D. Hill’s Memorandum in Support of Emergency Motion for Preliminary Injunction
I. Introduction Jeffrey Hill is before this Court upon the Court’s order in December 2005 allowing him to intervene in this litigation under 42 U.S.C. § 1983 challenging the method chosen by the state to execute him. At the Government’s request,1 this litigation has been stayed for a year.2 Mr. Hill received an execution date for June 15, 2006, from the Ohio Supreme Court, faxed to counsel on April 12, 2006. With an eminent execution date, the Ohio Parole Commission will begin the clemency process when a person is within 45 days of an execution date. Once begun, the Ohio Parole Commission will continue the clemency process to its conclusion.

1 Defendant’s Motion to Certify for Appeal Pursuant to 28 U.S.C. § 1292(b) the Denial of Defendant’s Motion to Dismiss, p. 3, Dkt. 16, March 30, 2005. 2 Order Certifying Interlocutory Appeal, p. 9, Dkt. XX, April 13, 2005.

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II. Background Jeff Hill is a death row inmate. Mr. Hill was convicted and sentenced to death in Hamilton County, Ohio in June 1992, for killing his mother. After exhausting state court appeals, Mr. Hill initiated habeas proceedings in the U.S. District Court for the Southern District of Ohio in the late 1990’s.3 As in Mr. Cooey’s case, Mr. Hill did not raise an Eighth Amendment challenge to death by lethal injection in his habeas petition. The District Court denied Mr. Hill’s petition in 2003. Mr. Hill appealed to the Sixth Circuit, which affirmed in a panel decision in March 2005. This litigation began in December 2004. The Government has delayed the resolution of this matter by seeking an interlocutory appeal.4 This Court has stayed the proceedings.5 But for this appeal the factual development similar to what has occurred in other states would have occurred. Mr. Hill joined this litigation soon after his Petition for a Writ of Certiorari was denied, and he has no further legal challenges to his death sentence. After this Court allowed Mr. Hill’s intervention in this litigation, an Assistant Attorney General from the Capital Crimes Unit signed, filed and served a motion on behalf of the Hamilton County Prosecutor to set an execution date. The Ohio Supreme Court granted the government’s motion yesterday, setting an execution for Mr. Hill in approximately 60 days.

3 Hill v. Mitchell, Case No. 1:99-cv-00382. 4 Motion for Certificate of Appealability, Dkt. 16, April 4, 2005. 5 Order granting in part and denying in part, etc., Dkt 21, April 14, 2005.

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III. Discussion or Preliminary Injunction Mr. Hill seeks a preliminary injunction barring the defendants from executing him, while this action remains unresolved. The object and purpose of a preliminary injunction is to preserve the existing state of things until the rights of the parties can be fairly and fully investigated.6 In order to grant an injunction, this Court must balance four factors: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction.7 The four considerations applicable to preliminary injunction decisions are factors to be balanced, not prerequisites that must be met. Accordingly, the

6 Blount v. Societe Anonyme du Filtre Chamberland Systeme Pasteur, 53 F. 98, 101 (6th Cir.1892); Performance Unlimited, Inc. v. Questar Publishers, Inc., 52 F.3d 1373, 1378 (6th Cir. 1995) (reversing denial of preliminary injunction even when there was a mandatory arbitration clause in the agreement); In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985) (holding that the other three factors outweighed the limited showing of likelihood to succeed). 7 Chabad of Southern Ohio & Congregation Lubavitch v. City of Cincinnati, 363 F.3d 427, 431 (6th Cir. 2004) (upholding a preliminary injunction preventing the defendant from enforcing a statute violating the Plaintiffs’ First Amendment rights); Blue Cross & Blue Shield Mut. of Ohio v. Blue Cross and Blue Shield Ass’n, 110 F.3d 318, 322 (6th Cir. 1997) (upholding a preliminary injunction preventing the defendants from using the Blue Cross and Blue Shield service marks); Sandison v. Michigan High School Athletic Ass’n, Inc., 64 F.3d 1026, 1030 (6th Cir. 1995) (upholding a preliminary injunction preventing the high school from sanctioning plaintiff for allowing a player who did not meet defendant’s criteria to run in races); Washington v. Reno, 35 F.3d 1093, 1099 (6th Cir. 1994) (upholding an injunction banning non-statutorily approved expenditures from a fund and dissolving the order regarding telephone system); USACO Coal Co. v. Carbomin Energy, Inc., 689 F.2d 94, 98 (6th Cir. 1982) (upholding a preliminary injunction preventing the defendants from transferring assets).

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degree of likelihood of success required to support a grant of a preliminary injunction may depend on the strength of the other factors considered.8
A. Mr. Hill has a strong likelihood of success on the merits. This litigation has been in hiatus since, and because, the Government initi-
ated the interlocutory appeal about a year ago. The issue of lethal injection has not been in hiatus in other states, particularly California but also Florida, North Carolina, and Tennessee.
The concern centers on the method of execution chosen. We expect the government to follow the same process that it has used in earlier executions. Three drugs will be administered: two grams of thiopental sodium in a normal saline concentration, 100 hundred milligrams of pancuronium bromide in normal saline solution, and 100 milliequivalents of potassium chloride in normal saline concentration.9 The first drug anesthetizes the person, the second drug paralyzes the person, and the third drug causes a heart attack. After being paralyzed there is way for non-medically trained to person to tell if the person is anesthetized or is in excruciating pain. This three-drug cocktail is used in various state execution protocols. It is the implementation of this three-drug cocktail that has attracted attention, particularly the discrepancy between the descriptions of how it is supposed to work and how it actually works. Troubling is that the three-drug cocktail is administered by non-medical personnel.

8 Washington v. Reno, 35 F.3d 1093, 1099 (6th Cir. 1994): In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir.1985). 9 Cooey Complaint, ¶ 20, Dkt. 2, December 8, 2004; admitted Answer, ¶ 14, Dkt. 20, April 11, 2005.

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This discrepancy between the way things were supposed to work and the
way they actually work was apparent in the California litigation. There Judge
Fogel noted that the record before him was very different from what had been
before the courts in earlier cases.10 There the declaration by the government
medical expert opined that over 99.999999999999% of the population would
be unconscious within 60 seconds of the administration of the thiopental so-
dium and that virtually all persons would stop breathing within a minute of
drug administration.11 The judge examined the details of a number of execu-
tions:
• Jaturun Siripongs: administration of sodium thiopental began at 12:04 a.m. and the administration of pancuronium bromide began at 12:08 a.m., yet respirations did not cease until 12:09 a.m., four minutes after the administration of sodium thiopental began and one minute after the administration of pancuronium bromide began.
• Manuel Babbitt: administration of sodium thiopental began at 12:28 a.m. and the administration of pancuronium bromide began at 12:31 a.m., yet respirations did not cease until 12:33 a.m., five minutes after the administration of sodium thiopental began and two minutes after the administration of pancuronium bromide began, and brief spasmodic movements were observed in the upper chest at 12:32 a.m. He maintained a steady heart rate of 95 or 96 beats per minute for seven minutes after he was injected with sodium thiopental. Dr. Heath states that this fact raises concerns about whether Babbitt was properly sedated.
• Darrell Keith Rich: administration of sodium thiopental began at 12:06 a.m. and the administration of pancuronium bromide began at 12:08 a.m., yet respirations did not cease until 12:08 a.m., when pancuronium bromide was injected, two minutes after the administration of sodium thiopental began. Chest movements were observed from 12:09 a.m. to 12:10 a.m. According to Dr. Heath, this evidence is consistent with a conscious attempt to fight the paralytic effect of the pancuronium bromide rather than with unconsciousness due to the successful administration of the sodium thiopental, particularly in light of Rich’s apparently iatrogenic rapid heart rate of 110 beats per minute as the chest movements were occurring. Rich’s heart rate was 130 beats per minute when the administration of potassium chloride began.

10 Morales v. Hickman, 415 F.Supp.2d 1037, 1042 (N.D. Cal. 2006). 11 Id. 415 F.Supp.2d at 1043-44.
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• Stephen Wayne Anderson: administration of sodium thiopental began at 12:17 a.m. and the administration of pancuronium bromide began at 12:19 a.m., yet respirations did not cease until 12:22 a.m., five minutes after the administration of sodium thiopental began and three minutes after the administration of pancuronium bromide began.
• Stanley Tookie Williams: administration of sodium thiopental began at 12:22 a.m., the administration of pancuronium bromide began at 12:28 a.m., and the administration of potassium chloride began at 12:32 a.m. or 12:34 a.m., yet respirations did not cease until either 12:28 a.m. or 12:34 a.m.—that is, either six or twelve minutes after the administration of sodium thiopental began, either when or six minutes after the administration of pancuronium bromide began, and either four minutes before or when the administration of potassium chloride began. Defendants’ records are inconsistent in this regard: the formal execution log suggests that Williams stopped breathing at 12:28 a.m. and indicates that potassium chloride was injected at 12:32 a.m. whereas the execution team’s log states that Williams stopped breathing at 12:34 a.m. when the potassium chloride was injected. It appeared that the formal log had been altered without any indication as to who made the alteration. Similarly to Rich, Williams apparently experienced an iatrogenic rapid heart rate of 115 beats per minute when he was injected with pancuronium bromide.
• Clarence Ray Allen: administration of sodium thiopental began at 12:18 a.m., yet respirations did not cease until 12:27 a.m., when pancuronium bromide was injected, nine minutes after the administration of sodium thiopental began. In a new declaration filed in the that action on February 6, 2006, Dr. Dershwitz, the government expert, opined that the “respirations” reported in the execution logs may be not be respirations at all, hypothesizing that they are no more than “chest wall movements.” However, he proposed this hypothesis with considerably less certainty than was evident in his discussion of the pharmacokinetics and pharmacodynamics of sodium thiopental, which are his principal areas of expertise. While Dr. Dershwitz’s explanation may be correct, 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. In rejecting the plaintiffs’ claims on the merits in Cooper and Beardslee, the California Court relied on Dr. Dershwitz’s opinion that the amount of sodium thiopental used in California’s lethal-injection protocol should both stop breathing and cause unconsciousness within a minute after administration begins. While there is no direct evidence that any condemned inmate actually was conscious when pancuronium bromide was injected, evidence from Defendants’ own execution logs that the inmates’ breathing may not have ceased as expected in at least six out of thirteen executions by lethal injection in California raises at least some doubt as to whether the protocol actually is functioning as intended, and because of the paralytic effect of pancuronium bromide, evidence that an inmate was conscious at some point after that drug was injected would be imperceptible to anyone other than a person with training and experience in anesthesia.

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These details from the government records contradicted the government medi-
cal expert’s opinion that the three-drug cocktail was a painless way to execute
someone.12
These same concerns were apparent to Judge Howard in North Carolina
when he issued a preliminary injunction barring an execution in North Caro-
lina. On April 7, 2006, he issued a preliminary injunction barring a scheduled
April 21 execution unless there were personnel with sufficient medical training
to ensure that the Plaintiff would be unconscious prior to and during the ad-
ministration of pancuronium bromide or potassium chloride. In North Carolina
the government had done blood tests after execution which contradicted the
government’s expert assertions:
While the Court does not fashion its order based solely on Morales, the Court does find the Morales decision persuasive. As in Morales, Plaintiff here has presented evidence of a kind that is different from that presented in the cases previously considered by this and other courts. Among this evidence is toxicology data from four recent North Carolina executions showing post-mortem levels of sodium pentothal ranging from 1.5 mg/L to 42 mg/L. At the very least, this evidence appears contrary to Dr. Dershwitz’s opinion that a man of average size injected with 3000 mg of sodium pentothal would have an expected concentration of 40 mg/L ten minutes later and a concentration of 33 mg/L twenty minutes later. In response, Defendants have filed an affidavit of Dr. Dershwitz in which it is stated that the discrepancies between the post-mortem toxicology results and his predictions may be explained by a number of factors, including the following: (i) that his predictions are based on arterial blood concentrations, whereas the post-mortem samples may not have been arterial blood samples; (ii) that sodium pentothal is subject to postmortem redistribution, causing a decrease in the blood concentration with time lapse; (iii) that due to the administration of the potassium chloride, blood circulation may have stopped prior to equilibration of the sodium pentothal concentrations between the arterial and venous circulatory systems; and (iv) there would be a systematic decrease in the reported concentrations due to delays in obtaining and shipping the samples and improper storage of the samples. While Dr. Dershwitz’s explanation may be correct, the Court cannot ignore the serious questions raised by this

12 Morales v. Hickman, 415 F.Supp.2d 1037, 1044-46 (N.D. Cal. 2006) (The specific descriptions are not quotes but paraphrases from the opinion.)

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data. This is especially true considering that the blood samples of which Dr. Dershwitz complains were collected, shipped, stored and analyzed at Defendants’ direction by agents of the State for the express purpose of determining whether inmates executed under Defendants’ protocol are receiving sufficient anesthesia prior to the administration of the pancuronium bromide and potassium chloride.13 In addition to the medical evidence contradicting the expert assertions, the
Court relied on anecdotal evidence from witnesses to North Carolina execu-
tions.14
In denying a motion for preliminary injunction in 2004, this Court dis-
cussed Dr. Dershwitz’s affidavit addressing the Ohio protocol. There he made
assertions similar to his assertions in California and North Carolina.15 The af-
fidavit was filed in a case that was dismissed because of a failure to exhaust
administrative remedies.16 The difference now is that Dr. Dershwitz’s asser-
tions, as noted above, have been contradicted by the factual development in
two states—California and North Carolina.

B. Mr. Hill would suffer irreparable injury without the injunction. Mr. Hill will be dead—possibly dying in excruciating agony. Given the fac-
tual development that has occurred in other states concerning the actual administration of the three-drug cocktail, Mr. Hill could easily suffer an agonizing and torturous death without anyone knowing.

13 Brown v. Beck, et al., No. 5:06-CT-3018-H, slip opinion at 8-9 (W.D. N.C. April 7, 2006) (footnotes omitted). 14 Id., at 9-10. 15 Dennis v. Taft, et al., No. 2:04-cv-00920, slip opinion at 8 (S.D. Ohio September 29, 2004). 16 Dennis v. Taft, et al., No. 2:04-cv-00532, slip opinion at 14 (S.D. Ohio September 16, 2004).

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The inability to obtain damages from the State in a § 1983 action reduces the showing necessary to establish irreparable harm.17

C. Issuing an injunction would not cause substantial harm to others. No one will be harmed by delaying this execution.

D. The public interest would be served by issuance of the injunction.
The public interest is served by enforcing constitutional rights. The unnec-
essary and wanton infliction of pain constitutes cruel and unusual punish-
ment.18
In the earliest cases raising Eighth Amendment claims, the Court focused on particular methods of execution to determine whether they were too cruel to pass constitutional muster. The constitutionality of the sentence of death itself was not at issue, and the criterion used to evaluate the mode of execution was its similarity to “torture” and other “barbarous” methods. See Wilkerson v. Utah, 99 U.S. 130, 136 (1879) (“(I)t is safe to affirm that punishments of torture . . . and all others in the same line of unnecessary cruelty, are forbidden by that amendment . . .”); In re Kemmler, 136 U.S. 436, 447, 10 S.Ct. 930, 933, 34 L.Ed.2d 519 (1890) (“Punishments are cruel when they involve torture or a lingering death . . .”). See also Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464, 67 S.Ct. 374, 376, 91 L.Ed. 422 (1947) (second attempt at electrocution found not to violate Eighth Amendment, since failure of initial execution attempt was “an unforeseeable accident” and “(t)here (was no purpose to inflict unnecessary pain nor any unnecessary pain involved in the proposed execution”).19
The public interest is also served by a prompt resolution of these rights.
This case began over a year ago. This Court set a discovery completion date for
May 6, 2005 and a trial date for August 1, 2005. These dates were stricken be-
cause the Government sought a stay of all proceedings in this case while seek-

17 Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 360 (4th Cir. 1991); St. Thomas-St. John Hotel & Tourism Ass’n, Inc. v. Government of U.S. St. Thomas-St. John Hotel & Tourism Ass’n, Inc. v. Government of U.S. Virgin Islands ex rel. Virgin Islands Dept. of Labor, 1999 WL 376873, p. 10 (D.Virgin Islands). 18 Hope v. Pelzer, 536 U.S. 730, 737 (2002). 19 Gregg v. Georgia, 428 U.S. 153, 170-71 (1976).

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ing an interlocutory review.20 Had the Government not delayed the case, Mr. Hill would be able to rely upon the facts developed in the last year. The Government cannot ask the Court to delay the factual development and at the same time continue to seek execution of defendants using the three-drug cocktail. The factual development regarding the actual implementation of the threedrug cocktail in other states shows the problems of this protocol. The Government sought this delay and now seeks to take advantage of that delay to execute Mr. Hill.

Because these four factors are not prerequisites, the stronger likelihood of success changes the balance of the weighing from what may have occurred in earlier cases.21 The change in the factual development over the last year changes this balancing that the Court must do.
IV. Discussion of Schedule There is time to litigate this matter before the Government executes Mr. Hill; however, it will require an expedited discovery and a hearing date in late-May or early-June.

20 Defendant’s Motion to Certify for Appeal Pursuant to 28 U.S.C. § 1292(b) the Denial of Defendant’s Motion to Dismiss, p. 3, Dkt. 16, March 30, 2005. 21 Washington v. Reno, 35 F.3d 1093, 1099 (6th Cir. 1994); In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir.1985); Roth v. Bank of the Commonwealth, 583 F.2d 527, 537-38 (6th Cir. 1978).

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Conclusion
For all of the foregoing reasons, the Court should grant emergency motion
for a preliminary injunction barring defendants from executing Mr. Hill until
the conclusion of this litigation.
s/Gary W. Crim GARY W. CRIM (0020252) Trial Attorney for Jeffrey D. Hill 943 Manhattan Avenue Dayton, Ohio 45406-5141 (937) 276-5770
DAVID BODIKER (0016590) Ohio Public Defender
TIMOTHY R. PAYNE (0069329) Assistant State Public Defender Office of the Ohio Public Defender 8 East Long Street Columbus, Ohio 43215-2998

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Certificate of Service
I, Gary W. Crim, counsel for Jeffrey D. Hill, certify that on April 14, 2006, I served a copy of this Emergency Motion for Preliminary Injunction by emailing it to the following email addresses:

Michael L Collyer Assistant Attorney General 615 W Superior Avenue 11th Floor Cleveland, OH 44113 216-787-3030 Fax: 216-787-3480 Email: mcollyer@ag.state.oh.us

Kelley Ann Sweeney Assistant Attorney General 615 W Superior Avenue 11th Floor Cleveland, OH 44113-1899 216-787-3030 Fax: 216-787-3480 Email: ksweeney@ag.state.oh.us

s/Gary W. Crim GARY W. CRIM

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

RICHARD COOEY, et al. Plaintiff,
v. ROBERT TAFT, Governor, et al.
Defendants.

Case No. 2:04-cv-01156 Judge Frost Magistrate Judge Abel

Jeffrey D. Hill‘s Reply Memorandum in Support of Emergency Motion for Preliminary Injunction

GARY W. CRIM (0020252) 943 Manhattan Avenue Dayton, Ohio 45406-5141 (937) 276-5770 Trial Attorney for Jeffrey D. Hill
and
DAVID BODIKER (0016590) Ohio Public Defender
TIMOTHY R. PAYNE (0069329) Assistant State Public Defender Office of the Ohio Public Defender 8 East Long Street Columbus, Ohio 43215-2998

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Table of Contents
Table of Contents.................................................................................................... i Table of Authorities ................................................................................................ii Jeffrey D. Hill’s Reply Memorandum in Support of Emergency Motion for
Preliminary Injunction ........................................................................ 1 I. Introduction ........................................................................................................... 1 II. Argument .............................................................................................................. 1 Conclusion ............................................................................................................. 6 Certificate of Service .............................................................................................. 7

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Table of Authorities
FEDERAL CASES
Chabad of Southern Ohio & Congregation Lubavitch v. City of Cincinnati, 363 F.3d 427 (6th Cir. 2004) ...................................................................... 1
Crawford v. Taylor, 126 S. Ct. 1192 (2006) ............................................................................... 4
In re DeLorean Motor Co., 755 F.2d 1223 (6th Cir.1985) ..................................................................... 1
Hill v. Cosby, 437 F.3d 1084 (11th Cir. 2006) .................................................................. 4
Hill v. Florida, 528 U.S. 1087 (2000) ................................................................................. 4
Hill v. Moore, 175 F.3d 915 (11th Cir. 1999) .................................................................... 4
Morales v. Hickman, 415 F. Supp. 2d 1037 (N.D. Cal. 2006) ................................................... 2, 5
Nelson v. Campbell, 541 U.S. 637 (2004) ................................................................................... 3
Washington v. Reno, 35 F.3d 1093 (6th Cir. 1994) ...................................................................... 1
STATE CASES
Hill v. State, 921 So. 2d 579 (Fla. 2006) ......................................................................... 4
DOCKETED CASES
Brown v. Beck, et al., No. 5:06-CT-3018-H ................................................................................... 3
Taylor, el al. v. Crawford, et al., Case No. 2:05-cv-04173 ......................................................................... 4, 5
Taylor v. Crawford, et al., Case No. 06-1397....................................................................................... 5
FEDERAL STATUTES
42 U.S.C. § 1983......................................................................................... 1, 4 28 U.S.C. § 1292(b) ......................................................................................... 1

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Jeffrey D. Hill’s Reply Memorandum in Support of Emergency Motion for Preliminary Injunction
I. Introduction Jeffrey Hill is before this Court upon the Court’s order in December 2005 allowing him to intervene in this litigation under 42 U.S.C. § 1983 challenging the method chosen by the state to execute him. At the Government’s request,1 this litigation has been stayed for a year.2 Mr. Hill recently received an execution date for June 15, 2006, from the Ohio Supreme Court, which prompted this Motion for Preliminary Injunction.
II. Argument To determine whether to issue a preliminary injunction, this Court must balance four factors: the strong likelihood of success on the merits; irreparable injury to moving party without the injunction; substantial harm to others; and the public interest served by issuance of the injunction.3 These are not prerequisites and must be balanced.4 The likelihood of success has increased since the cases cited by the Government. Litigation in other states has shown discrepancies between the theoretical explanations of the Government expert in this case, Dr. Dershwitz, and the actual practice of executing prisoners. The harm to Mr. Hill is of the most

1 Defendant’s Motion to Certify for Appeal Pursuant to 28 U.S.C. § 1292(b) the Denial of Defendant’s Motion to Dismiss, p. 3, Dkt. 16, March 30, 2005. 2 Order Certifying Interlocutory Appeal, p. 9, Dkt. 21, April 13, 2005. 3 Chabad of Southern Ohio & Congregation Lubavitch v. City of Cincinnati, 363 F.3d 427, 431 (6th Cir. 2004). 4 Washington v. Reno, 35 F.3d 1093, 1099 (6th Cir. 1994): In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir.1985).

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extreme—death in possibly a most painful manner. The Government’s asserted interest in a quick execution did not prevent it from delaying Mr. Cooey’s case by taking an interlocutory appeal. No public interest is served by a quick execution that violates Mr. Hill’s right to be free from cruel and unusual punishment.
We will address two matters in more detail: the discrepancy between the theoretical assertions about how prisoners should die and the facts of how they actually die and the position of the United States Supreme Court on allowing delay where the complaint about lethal injection is filed after completion of the federal habeas process.

The Government does not address the discrepancies between what should occur, according to their expert’s theoretical explanations, and what has actually occurred in California and North Carolina. In both of these states, Dr. Dershwitz’s expert opinion that the three-drug cocktail would work painlessly has been shown to be highly suspect. Yet the Government merely proffers a two-year-old affidavit from Dr. Dershwitz discussing Ohio procedures, a discussion that does not mention the discrepancies. In federal litigation in California and North Carolina, the courts were presented with the government records about the details of executions. In California the logs maintained by the prison authorities contradicted the theoretical explanations offered; prisoners were breathing when theoretically they should have been paralyzed by the anesthesia.5 And in North Carolina the blood analysis showed lower post-mortem levels of sodium pentothal than the theoretical amounts suggested by the Gov5 Morales v. Hickman, 415 F.Supp.2d 1037, 1044-46 (N.D. Cal. 2006).

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ernment’s expert.6 In North Carolina the blood analysis was done specifically to determine the level of anesthesia of those executed.
The Government’s Brief in Opposition does not address any of the problems of proof coming from the discrepancies between the theoretical explanations offered by its experts and the actual experiences from executions in California and North Carolina. Things do not work out in practice as clearly as they do in theory. Prisoners are breathing when theoretically they should not be breathing. And executed prisoners are showing lower levels of sodium pentothal than Dr. Dershwitz’s theory provides. These discrepancies between the theoretical explanations and the actual experiences change the balancing that this Court must follow in evaluation of Mr. Hill’s Motion for a Preliminary Injunction.

The United States Supreme Court has not taken the extreme position suggested by the Government about when a prisoner can raise the issue of lethal injection and has allowed delays in executions.
The Government relies heavily on Nelson v. Campbell, 541 U.S. 637 (2004), to support its argument that this Court should not issue a preliminary injunction. Justice O’Connor begins that opinion saying, “Three days before his scheduled execution by lethal injection, petitioner David Nelson filed a civil rights action in District Court . . . .”7 Nelson does not prevent this Court from acting. In fact, since Nelson, the Supreme Court has granted a certiorari peti-

6 Brown v. Beck, et al., No. 5:06-CT-3018-H, slip opinion at 8-9 (W.D. N.C. April 7, 2006). 7 Nelson, 541 U.S. at 639.

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Cooey et al. v. Taft, et al.

Case No. 2:04-cv-01156

tion by Clarence Hill of Florida, a prisoner who began his litigation after receiving an execution date, later than Jeffrey Hill.
If the Government’s logic held, Clarence Hill’s petition would have been denied because the Petitioner had not filed his 42 U.S.C. § 1983 action soon enough. Instead the Supreme Court will be hearing argument later this month. Clarence Hill’s petition for certiorari from the habeas proceeding was dismissed in 2000.8 In November 2005, Clarence Hill received an execution date for January 24, 2006. He then began his litigation on lethal injection in state court. The state court disposed of the matter on January 17, 2006.9 Clarence Hill began his federal litigation based on 42 U.S.C. § 1983 on January 20, 2006.10 The Eleventh Circuit had rejected his case on the theory that his civil complaint under 42 U.S.C. § 1983 was the functional equivalent of a successor habeas petition and that the claim did not meet the requirements for a successor habeas petition.11
The Supreme Court has also refused to interfere with the delaying of an execution in the Missouri lethal-injection litigation.12 There the federal litigation began long before an execution date was set. But very soon after the government lost its motion to dismiss in federal court,13 Mr. Taylor received an execu-

8 Hill v. Florida, 528 U.S. 1087 (2000). See also Hill v. Moore, 175 F.3d 915 (11th Cir. 1999). 9 Hill v. State, 921 So. 2d 579 (Fla. 2006). 10 Hill v. Cosby, 437 F.3d 1084, 1085 (11th Cir. 2006). 11 Id. 12 Crawford v. Taylor, 126 S. Ct. 1192 (2006). 13 Taylor, el al. v. Crawford, et al., Case No. 2:05-cv-04173, Dkts. 54, 55 (W.D. Mo, December 28, 2005 & January 3, 2006). This litigation has not resulted in any reported decisions, so we attach the Docket of the underlying District Court case, Appendix A; the Eighth Circuit panel decision in the government’s

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Cooey et al. v. Taft, et al.

Case No. 2:04-cv-01156

tion date from the state supreme court. On January 19, 2006, the District Judge set the matter for a hearing in February and entered an order prohibiting Mr. Taylor’s execution.14 The Government immediately appealed.15 On January 29, 2006—a Sunday—the panel lifted the stay and ordered a new judge to complete a hearing by noon on Friday, February 3, 2006. The new judge completed the hearing by Wednesday, February 1, 2006.16 Mr. Taylor lost this truncated hearing and appealed.17 The Eighth Circuit, en banc with a single dissent, delayed the execution, allowing a more orderly resolution, and the Supreme Court denied the Government’s application to vacate the stay.18 The matter has been briefed and was argued on April 19. It is now waiting a decision of an Eighth Circuit panel.
In two other cases, federal district courts have set conditions on the use of the three-drug cocktail. In Brown, the execution went forward and in Morales the matter awaits a hearing.
Thus the Supreme Court has rejected the extreme view of the Government. The Supreme Court permits federal courts to delay state-scheduled executions. These delays are allowed where the prisoner has timely filed his lethal-injection action, so that the issue of the three-drug cocktail can be litigated in an orderly manner.

initial appeal, Appendix B; and the docket in the pending Eighth Circuit case, Appendix C. 14 Id. Dkt. 62 (January 19, 2006) 15 Id. Dkt. 63 (January 19, 2006); Eighth Circuit Case No. 06-1278. 16 Appendix B. 17 Id. Dkt. 76 (February 1, 2006); Eighth Circuit Case No. 06-1397. 18 Taylor v. Crawford, et al., Case No. 06-1397, Docket.

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Case No. 2:04-cv-01156

Conclusion
Mr. Hill’s motion requires a balancing of factors. Two key developments
change the way this Court should balance his motion from the way this Court
has struck that balance in the past. The first difference is the discrepancy be-
tween the theory relied on by the Government of how prisoners die and the
now-developed facts of how they actually die. The second difference is the
United States Supreme Court allowing execution dates to be delayed because of
the lethal injection issue.
For all of the foregoing reasons, the Court should grant the emergency mo-
tion for a preliminary injunction barring defendants from executing Mr. Hill
until the conclusion of this litigation.
s/Gary W. Crim GARY W. CRIM (0020252) Trial Attorney for Jeffrey D. Hill 943 Manhattan Avenue Dayton, Ohio 45406-5141 (937) 276-5770
DAVID BODIKER (0016590) Ohio Public Defender
TIMOTHY R. PAYNE (0069329) Assistant State Public Defender Office of the Ohio Public Defender 8 East Long Street Columbus, Ohio 43215-2998

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Cooey et al. v. Taft, et al.

Case No. 2:04-cv-01156

Certificate of Service
I, Gary W. Crim, counsel for Jeffrey D. Hill, certify that on April 25, 2006, I served a copy of this Reply Memorandum in Support of Emergency Motion for Preliminary Injunction by e-mailing it to the following email addresses:

Michael L Collyer Assistant Attorney General 615 W Superior Avenue 11th Floor Cleveland, OH 44113 216-787-3030 Fax: 216-787-3480 Email: mcollyer@ag.state.oh.us

Kelley Ann Sweeney Assistant Attorney General 615 W Superior Avenue 11th Floor Cleveland, OH 44113-1899 216-787-3030 Fax: 216-787-3480 Email: ksweeney@ag.state.oh.us

s/Gary W. Crim GARY W. CRIM

Reply Memorandum in Support of Emergency Motion for Preliminary Injunction

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 Case 2:04-cv-01156-GLF-MRA Document 45 Filed 04/28/2006 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

RICHARD COOEY,

and

JEFFREY D. HILL,

Plaintiffs,

v.

ROBERT TAFT, Governor, REGINALD WILKINSON, Director,

Case No. 2:04-cv-1156 JUDGE GREGORY L. FROST Magistrate Judge Abel

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

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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
2

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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, 212526 (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 11th 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:
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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 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.)
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.
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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
5

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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
6

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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.)
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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.1 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.
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.

1

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.)

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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
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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 selfinflicted 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
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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
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Case 2:04-cv-01156-GLF-MRA Document 45 Filed 04/28/2006 Page 12 of 12 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.
s/ Gregory L. Frost GREGORY L. FROST UNITED STATES DISTRICT JUDGE
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 Case 2:04-cv-01156-GLF-MRA Document 137 Filed 11/22/2006 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

RICHARD COOEY, et al.,

Plaintiff,

v. ROBERT TAFT, et al.,

Case No. 2:04-cv-1156 JUDGE GREGORY L. FROST Magistrate Judge Mark R. Abel

Defendants.

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 John

Spirko’s emergency motion to intervene (Doc. # 119) and motion for a preliminary injunction

(Doc. # 120). For the reasons that follow, the Court GRANTS the former and DENIES the

latter.

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).

Case 2:04-cv-01156-GLF-MRA Document 137 Filed 11/22/2006 Page 2 of 14
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
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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
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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
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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 caseby-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
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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
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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. 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. 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
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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.
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 court apparently does not preclude the intervention that this Court found
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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).
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.
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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 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
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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.
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 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
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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. Selfinflicted 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
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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, 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). 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
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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.

IT IS SO ORDERED.

/s/ Gregory L. Frost GREGORY L. FROST UNITED STATES DISTRICT JUDGE

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 Case 2:04-cv-01156-GLF-MRA Document 145 Filed 12/06/2006 Page 1 of 7

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

RICHARD COOEY, et al.,

Plaintiffs, v.

Case No. 2:04-cv-1156 JUDGE GREGORY L. FROST Magistrate Judge Mark R. Abel

ROBERT TAFT, et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court for consideration of a December 5, 2006 motion for reconsideration filed by intervenor John G. Spirko, Jr. (Doc. # 143.) Previously, in a November 22, 2006 Opinion and Order, this Court permitted Spirko to intervene in this litigation but denied a stay of his scheduled execution. (Doc. # 137.)

Spirko bases his motion for reconsideration on the fact that after this Court denied his motion for a preliminary injunction (Doc. #120), which would have stayed his scheduled execution, a panel of the Sixth Circuit reversed this Court and granted a stay in regard to intervenor Jerome Henderson. This Court’s reasoning in regard to Henderson and Spirko was essentially identical: that because the Sixth Circuit has reversed without explanation a stay granted to intervenor Jeffrey Lundgren, this Court was mandated to deny stays in analogous situations. (Docs. # 124, 137.) Thus, Spirko posits, the Henderson appellate decision should control over the Lundgren appellate decision.

Before addressing directly the effect of the Henderson grant of a stay on the Lundgren denial of a stay, this Court must place the issue in its proper context. This is because the Sixth
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Circuit has placed its lower courts generally, and this Court specifically, in an unusual position that ultimately dictates the disposition of the reconsideration motion.
The captioned case involves a constitutional challenge to Ohio’s lethal injection protocol and has been before this Court since 2004. The case has been stayed while an appeal involving the original plaintiff, Richard Cooey, is pending before the Sixth Circuit. During this stay, a number of death row inmates have sought to intervene in this litigation. They have succeeded in intervening, although the specific circumstances of each intervenor have dictated whether the intervenor could obtain a stay of his scheduled execution.
The Sixth Circuit has addressed some of the issues involved in this litigation only to a limited degree. For example, the appellate court addressed many of the same issues in decisions involving Sedley Alley, who had brought a similar 42 U.S.C. § 1983 challenge to Tennessee’s lethal injection protocol earlier this year. See Alley v. Little, 452 F.3d 621 (6th Cir. 2006); Alley v. Little, 186 Fed. Appx. 604 (6th Cir. 2006); Alley v. Little, 447 F.3d 976 (6th Cir. 2006); Alley v. Little, 181 Fed. Appx. 509 (6th Cir. 2006).
This Court can draw little guidance from the Alley decisions, however, beyond their reiterating the same standards that this Court has endeavored to apply in considering stay requests; the core issue in Alley’s case–the protocol’s constitutionality–was never ultimately addressed. Moreover, because Alley’s case was predicated on limited and often apparently different evidence than that involved in the present litigation (in which there has been some limited development of the evidence generally favoring the intervenors), Alley’s failure to demonstrate a likelihood of success on the merits has provided no dispositive rule for addressing the numerous intervenors’ stay requests with which this Court has dealt.
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More recent developments have not clarified the state of the law on the issues involved. In an October 17, 2006 Opinion and Order, this Court permitted Jeffrey Lundgren to intervene in this action; the Court also stayed his execution. (Doc. # 92.) Defendants appealed that decision on October 18, 2006. (Doc. # 94.) In an October 23, 2006 Order, the Sixth Circuit declined en banc consideration of that appeal and, apparently pursuant to an internal operating rule of the appellate court, the appeal was assigned to the panel that had considered Lundgren’s habeas appeal. (Doc. # 102.) Later that same day, the Sixth Circuit recognized that the appeal involving original plaintiff Cooey existed and issued a second order, which stated in part:
In order to insure the consistent, uniform and fair application of federal law in all such lethal injection cases before the Court, and in deference to the first panel heretofore assigned to decide the issue, we transfer this case to the aforementioned panel, subject to that panel’s acceptance of the case for decision along with other similar cases raising the constitutionality of Ohio’s method of imposing capital punishment by lethal injection. It 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 other similarly situated are spared.
(Doc. # 107, at 2.) The Sixth Circuit therefore transferred the case to the Cooey panel.
Without providing an explanation of any sort, a majority of the Cooey-Lundgren panel reversed this Court’s decision in a third October 23, 2006 Order. (Doc. # 123.) Lacking guidance, this Court was left only with a conclusion: that this Court had erred in granting a stay of execution. Because the Sixth Circuit panel majority did not explain how this Court erred, this Court and any other court in this circuit that would have to address the issue is left in the dark as to how to avoid error in future cases. This was an unfortunate development, because while a lack of clarity in the law in any case is troubling (even if at times unavoidable), a lack of clarity
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when the death penalty is involved is of the utmost concern. What is clear is that our system of law provides that an appellate court trumps a district
court. Accordingly, given the Lundgren appellate decision, this Court was constrained to deny intervenors Jerome Henderson and John Spirko stays of their executions without being able to provide an explanation. (Docs. # 124, 137.)
Henderson appealed this Court’s decision on his preliminary injunction stay request on November 28, 2006. (Doc. # 141.) In a December 1, 2006 Order, a Sixth Circuit panel reversed this Court and granted a stay of Henderson’s execution. (Doc. # 142.) This appellate decision is interesting for two reasons.
The first interesting aspect of the Henderson decision is the panel that issued the decision. As noted above, the Lundgren appeal was originally assigned to the appellate panel that had considered Lundgren’s habeas appeal. That panel transferred the appeal to the Cooey panel, in part because the original panel was concerned about the potential for inconsistent decisions. Henderson’s habeas appellate panel kept his new appeal, however, without mentioning the prior Lundgren panel transfer or the issues that had motivated that transfer.
The second interesting aspect of the Henderson decision is that the new panel reversed this Court and stayed Henderson’s execution. The Henderson majority opinion reads in its spartan entirety:
Plaintiff, Jerome Henderson, asks this court to grant an emergency stay of execution of his death sentence which is set to take place at 10:00 a.m. on December 5, 2006.
Having considered the motion and the response in opposition, and having found the motion to be well-taken, it is
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ORDERED that the motion is GRANTED, and a stay of execution will issue. (Doc. # 142, at 1.) Like the Lundgren appellate panel, the Henderson panel was split. And like in the Lundgren decision, the Henderson majority issued a conclusory decision that provided no guidance whatsoever to the lower courts. The dissenting judge in the Henderson appeal opined 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.) This Court agrees and cannot fathom how the appellate court’s earlier concern over how “[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 other similarly situated are spared” meshes with what has transpired in regard to Lundgren and Henderson. In the words of the Sixth Circuit, there is no “consistent, uniform and fair application of federal law in all such lethal injection cases before the [appellate court].” (Doc. # 107, at 2.) Certainly, Henderson will not complain about the inconsistency, but Lundgren, who was executed on October 24, 2006, would no doubt have been interested in the Henderson panel’s unexpressed rationale. The dissenting judge in Henderson noted that “the integrity of the judicial system demands that courts of law adhere to [prior] decisions or else provide a reasoned explanation for the refusal to do so.” (Doc. # 142, at 2.) That axiomatic principle proves troubling here, where this Court is now confronted with two different unreported decisions by two different appellate panels, both concerned with the same issues of law and both reaching wholly opposite,
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unexplained results. It is difficult to discern principled distinctions justifying divergent outcomes in a vacuum.
It is thus unclear which appellate decision controls. It is also unclear what the relevant substantive law is. Such lack of clarity is most troubling because when our system of law includes unexplained decisionmaking, it loses the legitimacy that must guide the state-sanctioned taking of any human life. Although it is not this Court’s intent to find fault with any panel or judge of the higher court, it is this Court’s intent to respectfully request clarification on the serious issues involved in this litigation. This Court’s inability to discern the appellate rationale for denying or granting a stay does not promote confidence in the system, does not promote consistency in court decisions, and does not promote the fundamental value of fairness that underlies any conception of justice.
This brings the Court to Spirko’s pending motion for reconsideration. (Doc. # 143.) To grant this motion, the Court must recognize that it erred in previously denying his motion for a stay. But in light of conflicting, unexplained decisions, the Court simply cannot say what the law is in this Circuit on the issues involved, and multiple panels of the appellate court have declined opportunities to explain the state of the law. The end result is a morass of deadly ambiguity. Accordingly, the Court cannot reasonably conclude that it erred in denying Spirko’s motion for a preliminary injunction and must therefore DENY the motion for reconsideration. (Doc. # 143.)
The Court currently has on its docket a motion for a preliminary injunction/motion to stay his execution filed by intervenor Kenneth Biros. (Docs. # 144.) That motion will require issuance of a prompt decision in light of his scheduled January 23, 2007 execution date. The
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Case 2:04-cv-01156-GLF-MRA Document 145 Filed 12/06/2006 Page 7 of 7 Sixth Circuit is set to entertain oral argument regarding this lethal injection litigation on December 7, 2006. It is the hope of this Court that all counsel involved will respectfully urge the appellate court to issue a prompt decision providing this and other courts with much-needed guidance on the issues involved in this litigation.
IT IS SO ORDERED. /s/ Gregory L. Frost
GREGORY L. FROST UNITED STATES DISTRICT JUDGE
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 Case 2:04-cv-01156-GLF-MRA Document 24 Filed 11/23/2005 Page 1 of 8

IN THE UNITED STATES DISTRICf COURT
FOR THE SOUTHERN DISTRICf OF OHIO ZOOl NOV 23 A \(): I 0
EASTERN DIVISION

RICHARD COOEY, Plaintiff,
v.
ROBERT TAFT, Governor, et al.

Case No.: 2:04cv1156
JUDGE FROST Magistrate Judge Abel

Defendants.

PLIAINTIFF-INTERVENOR'S MOTION FORA TEMPRORARY RESTRAINING ORDER AND PRELIMINARY INJUNCfION TO STAY
HIS EXECUTION PENDING ADJUDICATION OF 42 U.S.C. § 1983 CLAIMS CHALLENGING DEFENDANTS' CRUEL AND UNUSUAL
EXECUTION PROCEDURES

NOW COMES Plaintiff-Intervenor, John R. Hicks, through counsel, and moves this Court for a temporary restraining order and preliminary injunction preventing defendants from using their current procedures for carrying out executions by lethal injection to execute him before the merits of his pending civil rights complaint are fully adjudicated. Plaintiff-Intervenor, John R. Hicks is scheduled to be executed by the challenged execution procedures on November 29, 2005. Accordingly, irreparable harm will be suffered if the requested relief is denied.

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Case 2:04-cv-01156-GLF-MRA

Document 24

Filed 11/23/2005

Page 2 of 8

MARC D. MEZIBOV (Ohio Bar No. 0019316) CHRISTIAN A. JENKINS (Ohio Bar No. 0070674) MEZIBOV & JENKINS, LLP 1726 Young Street Cincinnati, Ohio 45202 Telephone: (513) 723-1600 Telecopier: (513) 723-1600 Attorney for John R. Hicks

Case 2:04-cv-01156-GLF-MRA Document 24 Filed 11/23/2005 Page 3 of 8
MEMORANDUM I. Introduction
This action challenges the State of Ohio's official policy of executing prisoners by lethal injection. The Court denied defendants' motion to dismiss this action in March 2005. (Doc. No. 14). The Court has certified an interlocutory appeal of its decision on defendants' motion to dismiss to the Sixth Circuit, which remains pending at this time. Accordingly, it remains possible that plaintiffs will prevail on the § 1983 claims presented in this case and that the state's official method of execution, which according to the complaint constitutes torture and cruel and inhuman punishment, will be found unconstitutional.
Plaintiff-Intervenor John R. Hicks has joined in this action and stated claims under 42 U.S.C. § 1983. He is scheduled to be executed by lethal injection on November 29, 2005. Thus, unless his execution is stayed by this Court, he will be deprived of his right to have this Court decide his claims on their merits.
Like Mr. Cooey, Mr. Hicks initiated his habeas action in 1994 -- prior to the State of Ohio's adoption of lethal injection as the official method of execution. Mr. Hicks' execution became "imminent" within the meaning of this Court's March 28, 2005 Order (Doc. No. 14), and the statute oflimitations began to run on Mr. Hicks' § 1983 claims, on August 1, 2005, when the Supreme Court denied rehearing of his petition for certiorari. (See Supreme Court Docket attached as Ex. A). This action has been brought only a few months thereafter. Accordingly, Mr. Hicks has presented timely and potentially

Case 2:04-cv-01156-GLF-MRA Document 24 Filed 11/23/2005 Page 4 of 8
meritorious claims. In the absence of preliminary injunctive relief, he will be irreparably deprived of his right to have these claims adjudicated on their merits. II. Facts
John Hicks is a death row inmate scheduled to die on November 29, 2005. Mr. Hicks was convicted and sentenced to death in Hamilton County, Ohio in February 1986. After exhausting state court appeals, Hicks initiated habeas proceedings in the U.S. District Court for the Southern District of Ohio on March 10, 1994 (Case No. C-l94-177). As in Mr. Cooey's case, Mr. Hicks did not raise an Eighth Amendment challenge to death by lethal injection in his habeas petition because the State of Ohio had not yet adopted it as the method of execution. The district court denied Mr. Hicks' petition on April 17, 2001.
Mr. Hicks appealed to the Sixth Circuit, which affirmed in a panel decision with one judge dissenting on September 15, 2004. The U.S. Supreme Court denied Mr. Hicks' petition for a writ of certiorari on May 16, 2005. Mr. Hicks sought rehearing before the Supreme Court based on its decision in Rompilla v. Beard, 125 S.Ct. 2456 (2005). The Supreme Court denied his petition for rehearing on August 1, 2005. From that day forward including the date of this filing, Plaintiffs counsel has vigorously pursued a recommendation for executive clemency pursuant to Ohio law. It was not until November 15, 2005 that the Ohio Parole Board issued its negative recommendation to Governor Taft. The Governor has not yet acted on that recommendation.

Case 2:04-cv-01156-GLF-MRA Document 24 Filed 11/23/2005 Page 5 of 8
On August 12, 2005, the Sixth Circuit issued the mandate to carry out Mr. Hicks' sentence. Thereafter, Ohio's Department of Corrections scheduled his execution for November 29, 2005. Mr. Hicks' request for clemency remains pending before the Governor of the State of Ohio, however, the Parole Board has issued a recommendation against the grant of clemency. Accordingly, his execution is imminent. III. Discussion
Mr. Hicks' claims are clearly cognizable, as demonstrated by this Court's denial of the defendants' motion to dismiss. Moreover, the Eighth Amendment's proscription against cruel and unusual punishment forbids the infliction of unnecessary pain in the execution of a sentence of death. Louisiana ex rei. Francis v. Resweber, 329 U.S. 459, 463 (1947) (opinion of Reed, J.); Fierro v. Gomez, 865 F.Supp. 1387, 1413 (N.D.Cal. 1994) (bolding execution by lethal gas in California to be unconstitutional because of suffering during fifteen seconds to one minute of consciousness); affd, 77 F.3d 301, 308 (9th Cir. 1996), vacated on other grounds, 519 U.S. 918 (1996). Punishments are "cruel when they involve ... a lingering death." In re Kemmier, 136 U.S. 436, 447 (1890). Indeed, a punishment is especially offensive to the Eighth Amendment if it involves foreseeable infliction of suffering. See Furman v. Georgia, 408 U.S. 238, 273 (1973).
Under the foregoing principles, and based on the facts alleged in the pleadings which remain uncontroverted at this stage of the proceedings, plaintiffs contend that the State of Ohio's official policy of executing prisoners by lethal injection violates the Eighth Amendment's proscription against cruel and unusual punishment. Pursuant to

Case 2:04-cv-01156-GLF-MRA Document 24 Filed 11/23/2005 Page 6 of 8
42 U.S.C. § 1983, the Court may grant equitable relief for such violations of the Constitution and laws. Preliminary injunctive relief such as that sought in this case is appropriate under Rule 65 where: 1) there is a likelihood of plaintiffs success on the merits; 2) the plaintiff will suffer irreparable harm without the injunction; 3) issuance of the injunction would not cause substantial harm to others; and, 4) the injunction would serve the public interest. See Ohio Asphalt Paving, Inc. v. Board of Commissioners of Coshocton County, Ohio, 2005 WL 1705140 (S.D. Ohio) (attached) (citing Chabad ofS. Ohio & Congregation Lubavitch v. City of Cincinnati, 363 F.3d 427, 432 (6th Cir. 2004). "[T]he four considerations applicable to preliminary injunctions are factors to be balanced and not prerequisites that must be satisfied. These factors simply guide the discretion ofthe court; they are not meant to be rigid and unbending requirements." In re Eagle-Picher Industries, Inc., 963 F.2d 855 (6th Cir. 1992) (citations omitted). Further, no single factor is dispositive of the outcome and a court may view each factor in light of the compelling circumstances of the case. See Frisch's Restaurant v. Shoney's, Inc., 759 F.2d 1261 (6th Cir. 1985).
It cannot be disputed that, in the absence of preliminary injunctive relief, plaintiff will suffer irreparable harm. This element weighs heavily in favor of granting the requested relief. The requested relief will harm no one. Moreover, the public interest is served by avoiding irreparable constitutional violations. Finally, plaintiff has raised truly weighty constitutional claims that cannot be easily dismissed. Indeed, defendants have not even tried to dismiss the claims raised in this action on their merits preferring

Case 2:04-cv-01156-GLF-MRA Document 24 Filed 11/23/2005 Page 7 of 8
to raise statute of limitations and res judicata defenses, thereby tacitly recognizing the potential merit of plaintiffs' claims. On balance, therefore, the factors to be considered by the Court strongly favor the issuance of the requested relief. IV. Conclusion
For all of the foregoing reasons, movant John R. Hicks respectfully requests that the Court grant the preliminary injunctive relief requested herein and allow him to adjudicate his § 1983 claims on their merits.
MARC D. MEZIBOV (Ohio Bar No. 0019316) CHRISTIAN A. JENKINS (Ohio Bar No. 0070674) MEZIBOV & JENKINS, LLP 1726 Young Street Cincinnati, Ohio 45202 Telephone: (513) 723-1600 Telecopier: (513) 723-1600 Attorney for John R. Hicks CERTIFICATE OF SERVICE I hereby certify that this document was provided via facsimile and overnight mail to, Charles L. Willie, Asst. Attorney General Capital Crimes Section, State Office Tower, 30 East Broad Street, Twenty-Third Floor, Columbus, OH day of November, 2005.
MARC D. MEZIBOV (Ohio Bar No. 0019316)

Case 2:04-cv-01156-GLF-MRA Document 24 Filed 11/23/2005 Page 8 of 8

• Docket for 04-9053

Page 1 of I

No. 04-9053

*•• CAPITAL CASE **.

Title:

John R. Hicks, Petitioner

v.

Terry Collins, Warden

Docketed:

March 11,2005

Lower Ct:

United States Court of AppeaJs for the Sixth Circuit

Case Nos.:

(01-3764)

Decision Date: September 15, 2004

Rehearing Denied: December 7,2004

-Date--- ---Proceedings and Orders---·--~ Mar 3 2005 Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed.
(Response due April 11, 2005) Apr II 2005 Brief of respondent Terry Collins, Warden in opposition filed. Apr 27 2005 DISTRIBUTED for Conference of May 12,2005. May 162005 Petition DENIED. Jnn 3 2005 Petition for Rehearing filed. Jul 7 2005 DISTRIBUTED. Aug 1 2005 Rehearing DENIED.

-Name~----------------
Attorneys for Petitioner: Marc D. Mezibov
Party name: John R. Hicks

~-Address
Mezibov & Jenkins, L.L.P. 1726 Young Street Cincinnati, OH 45202

Attorneys for Respondent: Douglas R. Cole
Party name: Terry Collins, Warden

State Solicitor General 30 East Broad St. 17th Floor Columbus,OH 43215

-Phone--(513) 723-1600
(614) 466-8980

.htrn

1

 
 Case 2:04-cv-01156-GLF-MRA Document 23 Filed 11/23/2005 Page 1 of 15

UNITED STATES DISTRICf COURT SOUTHERN DISTRICf OF OHIO EASTERN DIVISION
RICHARD COOEY,

1005 NOV 23 A 10: I 1
".')",

Plaintiff,

Case No.: 2:04cv1156

v.
ROBERT TAFT, Governor, et al.

JUDGE FROST Magistrate Judge Abel

Defendants.

EMERGENCY MOTION TO INTERVENE

NOW COMES movant, John R. Hicks, through counsel, and moves this Court pursuant to Rule 24 of the Federal Rules of Civil Procedure for leave to intervene in the above-captioned action as a plaintiff-intervenor. Movant's pleading setting forth the claim upon which intervention is sought pursuant to Rule 24(b) and (c) is attached hereto as Exhibit A. The grounds for this motion are set forth i herewith.

MARC D. MEZIBOV (OhIO

o. 0019316)

CHRISTIAN A. JENKINS (Ohio Bar No. 0070674)

MEZIBOV & JENKINS, LLP

1726 Young Street

Cincinnati, Ohio 45202

Telephone: (513) 723-1600

Telecopier: (513) 723-1600

Attorney for John R. Hicks

Case 2:04-cv-01156-GLF-MRA Document 23 Filed 11/23/2005 Page 2 of 15
MEMORANDUM I. Introduction
Movant, John R. Hicks, seeks leave to intervene because his Eighth Amendment claim, detailed in the pleading attached hereto, involves precisely the same issues of law and fact as are presented in this action - the constitutionality of execution by lethal injection pursuant to official protocol adopted by the state of Ohio. II. Background
John Hicks is a death row inmate scheduled to die on November 29, 2005. Mr. Hicks was convicted and sentenced to death in Hamilton County, Ohio in February 1986. After exhausting state court appeals, Hicks initiated habeas proceedings in the U.S. District Court for the Southern District of Ohio on March 10, 1994 (Case No. C-l94-177). As in Mr. Cooey's case, Mr. Hicks did not raise an Eighth Amendment challenge to death by lethal injection in his habeas petition because the state of Ohio had not yet adopted it as the method of execution. The district court denied Mr. Hicks' petition on April 17, 200l.
Mr. Hicks appealed to the Sixth Circuit, which affirmed in a panel decision with one judge dissenting on September 15, 2004. The U.S. Supreme Court denied Hicks' petition for a writ of certiorari and request for rehearing on August 1, 2005. On August 12, 2005, the Sixth Circuit issued the mandate to carry out Mr. Hicks' sentence. Thereafter, Ohio's Department of Corrections scheduled his execution for November 29, 2005. Mr. Hicks' request for clemency remains pending before the Governor of the
2

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state of Ohio, however, the Parole Board has issued a recommendation against the grant of clemency. III. Discussion
Mr. Hicks seeks leave to intervene pursuant to Rule 24(b)(2) because he is asserting precisely the same Eighth Amendment claim asserted by Mr. Cooey in this action. Thus, Mr. Hicks' "claim ... and the main action have a question oflaw or fact in common" within the meaning of Rule 24(b)(2).
Rule 24 is to be liberally construed in favor of intervenors. See Purnell v. Akron, 925 F.2d 941, 950 (6th Cir. 1991). The "rule requires only that [the intervenor's] claim or defense and the main action have a question of law or fact in common." 7C Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d, § 1911, p. 358. "So long as the motion for intervention is timely and there is at least one common question of law or fact, the balancing of undue delay, prejudice to the original parties, and any other relevant factors" is within the discretion of the Court. See Michigan State AFL-CIO v. Miller, 103 F.3d 1240 (6th Cir. 1997). Intervention has been held appropriate in cases such as this where the intervenor seeks to challenge the constitutionality of the same statute or practice challenged in the main action and in which the same constitutional rights are at issue. See e.g. Marte v. Immigration & Naturalization Serv., 562 F.Supp. 92 (S.D.N.Y. 1983); Swift v. Toia, 450 F.Supp. 983 (S.D.N.Y. 1978); affd 598 F.2d 312 (2d Cir. 1979); Dawson v. Vance, 329 F.Supp. 1320 (S.D.Tex. 1971).
3

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In this case, Mr. Hicks seeks to vindicate precisely the same rights as are at issue in the main action. Both he and Mr. Cooey are to be executed under the state of Ohio's official policy of death by lethal injection. Accordingly, the requirement of common issues of fact and law is satisfied. The remaining factors are easily fulfilled in this case. The Cooey action is in its early stages with no discovery having been taken. Indeed, the only matter yet addressed has been Defendants' motion to dismiss, the denial of which is pending before the Sixth Circuit on an interlocutory appeal. Accordingly, the motion to intervene is both timely and will not unduly delay the proceedings.
Finally, no prejudice will inure to either party if intervention is allowed. The issues raised in the Cooey case have the potential to dramatically impact the administration ofthe death penalty in Ohio. Indeed, given the significance ofthe issues the presence of additional parties to ensure that the issues are fully and vigorously presented will redound to the benefit of the parties, the Court and the public in general. IV. Conclusion
For all of the foregoing reasons, movant John R. Hicks respectfully requests that the Court grant his emergency motion for leave
MA: CD. MEZIBOV (0 I ar No. 0019316) CHRISTIAN A. JENKINS (Ohio Bar No. 0070674) MEZIBOV & JENKINS, LLP 1726 Young Street Cincinnati, Ohio 45202 Telephone: (513) 723-1600 Telecopier: (513) 723-1600
4

Case 2:04-cv-01156-GLF-MRA Document 23 Filed 11/23/2005 Page 5 of 15

Attorney for John R. Hicks CERTIFICATE OF SERVICE I hereby certify that this document was provided via facsimile and overnight mail to, Charles L. Willie, Asst. Attorney General Capital Crimes Section, State Office Tower, 30 East Broad Street, Twenty-Third Floor, Columbus, OH 43215-3429 on this the 2nd day of November, 2005.

MA D. MEZIBOV(O

.0019316)

5

Case 2:04-cv-01156-GLF-MRA Document 23 Filed 11/23/2005 Page 6 of 15

EXHIBIT A

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

JOHN R. HICKS, Inmate #189-423 Mansfield Correctional Institution P.O. Box 788 Mansfield, Ohio 44091,

Plaintiff,

v.

ROBERT E. TAFf, JR., GOVERNOR, State Of Ohio 77 S. High Street 30th Floor Columbus, Ohio 43215
and

PLAINTIFF'S COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

REGINALD A. WILKINSON, DIRECTOR Ohio Department of Rehabilitation and Correction 1050 Freeway Drive North Columbus, Ohio 43229

and

JAMES HAVILAND, WARDEN Southern Ohio Correctional Facility
1724 St. Route 728 Lucasville, Ohio 45699,

Defendants.

Case 2:04-cv-01156-GLF-MRA Document 23 Filed 11/23/2005 Page 7 of 15
Plaintiff, John R. Hicks, for his Complaint for Injunctive and Declaratory Relief states as follows:
INTRODUCfION 1. Plaintiff is a death row inmate awaiting execution of his death sentence which is scheduled for November 29, 2005. This action is brought under 42 U.S.C. §1983 for violations and threatened violations of Plaintiff's right to be free from cruel and unusual punishment under the Eight and Fourteenth Amendments of the United States Constitution. More particularly, Plaintiff believes and therefore asserts that he will be subjected to torture by means of lethal injection if his death sentence is carried out in accordance with current methods of execution employed by the state of Ohio. Plaintiff seeks declaratory and injunctive relief sparing him from death in an unconstitutional manner. 2. In this action Plaintiff asserts that Ohio's current method of lethal injection can and will, in effect, cause him to be tortured to death. It is impermissible for Ohio or any state under the United States Constitution to intentionally, negligently or otherwise, use methods of execution that are inherently unreliable and which therefore raise an unreasonable risk of causing death in an exceedingly painful way. 3. To the best of Plaintiff's present information and belief, Ohio intends to execute him on November 29, 2005 by means of drugs that include a paralyzing agent that can and will cast a chemical veil over the exceedingly painful effects of death by suffocation and heart attack. Ohio's lethal injection protocol includes an ultra-short
2

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acting anesthetic that, if used to execute Plaintiff, will leave him conscious and able to experience the process of suffocation and heart failure. Ohio's lethal injection protocol utilizes unreliable and arbitrary selection of drugs administered by personnel who are not sufficiently qualified or trained in the humane administration of lethal injections so as to prevent Plaintiff from suffering excessive pain during the process of his execution.
4. Plaintiff seeks temporary, preliminary and permanent injunctive relief preventing the state of Ohio from executing him by means currently employed for carrying out a sentence of death by lethal injection. Plaintiff further seeks a declaration from this Court that Ohio's current method for conducting a sentence of death by means of lethal injection violates the Eighth and Fourteenth Amendments of the United States Constitution.
JURISDICfION AND VENUE 5. Plaintiff brings this action to enforce and protect rights conferred by the Eighth and Fourteenth Amendments of the United States Constitution. This action to vindicate these rights is brought pursuant to 42 U.S.C. §1983. 6. This Court has jurisdiction over the subject matter of this complaint pursuant to 28 U.S.C. §1331 and 28 U.S.C. §1343 (a)(3)(4) as well as 28 U.S.C. §2201(a) and 28 U.S.C. §2202 providing for, respectively, declaratory and injunctive relief. 7. This Court is the appropriate venue for this matter because all decisions and procedures affecting the administration of death sentences in the state of Ohio by
3

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means oflethal injection occur in Columbus, Franklin County, Ohio, which is the seat of state government.
ADMINISTRATIVE REMEDIES 8. The precondition to this lawsuit of exhaustion of administrative remedies under the Ohio Administrative Code §5120-9-31 pursuant to the Prison Litigation Reform Act, 42 U.S.C. §1997(e)(a), is inapplicable or in these circumstances futile. The precise grounds for relief sought by this action, the unconstitutionality of Ohio's system of lethal injection has been rejected by state officials in a parallel administrative procedure. See Cooey v. Robert Taft, et al Case No. 2-04cv1156, United States District Court, Southern District of Ohio, Eastern Division. There is no reasonable basis to conclude, therefore, that exhaustion of administrative remedies in this instance will result in a different decision. Moreover, the time frame established by state regulations for exhaustion of administrative remedies is such that it is unlikely that that process can be concluded prior to Plaintiffs scheduled execution date. Nevertheless, Plaintiff has initiated a grievance pursuant to §521O-9-31. On November 22, 2005 the DRC waived the informal complaint step and informed Plaintiffs counsel that Plaintiff could file a formal written complaint to the Inspector of Institutional Services. As of the time and date of the filing of this Complaint, Plaintiff has not received a written response to his grievance.
4

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PARTIES 9. Plaintiff is a death-sentenced inmate in the custody of the state of Ohio and under the control and supervision of the Ohio Department of Rehabilitation and Correction. (DRC). DRC maintains the Mansfield Correctional Institution in Mansfield, Ohio where Plaintiff is currently confined. 10. Defendant Robert Taft, Jr. is the duly elected Governor of Ohio. Governor Taft has final executive authority over all departments, agencies and offices of the state of Ohio. Governor Taft has statutory and constitutional responsibility for the execution of all sentences of death in Ohio including the manner and means in which those sentences are carried out. 11. Defendant Reginald A. Wilkinson is the duly appointed and acting director of the Department of Rehabilitation and Correction (DRC). DRC is a department of the state of Ohio created and maintained under RC 5120 et. seq. Defendant Wilkinson is responsible for the administration of rules and regulations of the DRC including those involving the operations and procedures for the execution of death sentences. 12. Defendant James Haviland is the duly appointed Warden of the Southern Ohio Correctional Facility (SOCF) located in Lucasville, Ohio. According to rules and procedures of DRC, the sentences of death are carried out at SOCF. Under Ohio Statute, ORC §5120.38, Warden Haviland is in charge with management of SOCF including the execution of death sentences carried out at that facility. (All of the named defendants
5

,-----------------------
Case 2:04-cv-01156-GLF-MRA Document 23 Filed 11/23/2005 Page 11 of 15
are sued solely in their official capacities; accordingly defendants are referred to herein collectively as the state of Ohio.)
STATEMENT OF THE CASE 13. To the best of Plaintiffs present information and belief the state of Ohio intends to execute Plaintiff by employing the same means and methods of lethal injection as has been used in Ohio since it resumed executions in 1999. 14. To the best of Plaintiffs present information and belief the state of Ohio intends to execute Plaintiff by injection of the following drugs: two grams of Thiopental Sodium in normal saline concentration; 100 mg of Pancuronium Bromide in normal saline concentration; and 100 miIli equivalents of Potassium Chloride in normal saline concentration. At least the following equipment will be utilized: angiocath abbocath-T; Primary IV set No. 1820 (70 inch); and 0.9% Sodium Chloride, 1000 ml. 15. To the best of Plaintiffs present information and belief, the state of Ohio has consistently deferred to publicly disclose all material details surrounding the process by which an inmate sentenced to die will be executed pursuant to lethal injection; nor has the state of Ohio published details surrounding the qualifications and training of the personnel involved in the administration of lethal injection. 16. Plaintiff is unaware of any efforts by or assurances from the state of Ohio with respect to the adoption and implementation of methods of lethal injection that are in keeping with contemporary medical, community and constitutional standards that
6

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proscribe the infliction of cruel and unusual punishment in the administration of the death sentence by lethal injection.
17. According to the opinions of qualified medical experts and other reliable sources detailed at length in pleadings filed in Cooey v. Taft, supra. it cannot be established to a reasonable degree of medical certainty that the drugs administered in the lethal injection process will adequately sedate Plaintiff so as to spare him the excruciating pain and suffering that attends death by suffocation and heart failure. More particularly, Plaintiff alleges that Ohio's lethal injection protocol creates an unacceptable risk that he will not be anesthetized to the point of being unconscious and unaware of pain for the duration of the execution procedure.
18. Likewise, the lethal injection protocol adopted by the state of Ohio does not require that a person with adequate medical training administer and monitor the execution so as to detect whether a condemned inmate is suffering pain and if so to determine whether and what appropriate medical steps may be taken to alleviate that pain.
19. To the best of Plaintiffs present information and belief the state of Ohio's lethal injection protocol does not include or require the use of medical equipment designed to effectively and accurately monitor a condemned person's heartbeat, pulse rate or brain waves during the execution. The absence of such equipment from the protocol suggests that the procedures employed by the state of Ohio to cause death by lethal injection are inadequate and indifferent to whether a condemned person
7

Case 2:04-cv-01156-GLF-MRA Document 23 Filed 11/23/2005 Page 13 of 15
experiences extreme pain and suffering during the course of his or her execution by reasons of any number of factors including but most especially due to the injection of inappropriate drugs or the injection of inadequate doses or combinations of drugs or the improper delivery of drugs into the condemned inmate's body.
20. Plaintiff believes and therefore avers that the means intended by the state of Ohio to execute him are inadequate, unreliable and arbitrary such that the lethal injection process will likely cause Plaintiff to suffer excruciating pain and cruel and unusual punishment in the course of his death.
21. Under the circumstances set forth in this Complaint, Plaintiff faces the risk of irreparable harm in the form of excruciating pain and suffering in the course of his execution for which there is no adequate remedy at law in the absence of temporary, preliminary and permanent injunctive relief enjoining the state of Ohio from utilizing methods of execution that cause cruel and unusual punishment in violation of the Constitution.
CLAIMS FOR REliEF 22. Plaintiff incorporates paragraphs 1 through 21 as if fully rewritten herein. 23. For the reasons previously stated, the official policies, procedures and protocols adopted by the state of Ohio governing the execution of death sentences by means of lethal injection manifest a callous and deliberate indifference to Plaintiffs constitutional rights to be free from the infliction of cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution.
8

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PRAYER FOR RELIEF 1. Plaintiff requests an Order from this Court declaring that the official policies, procedures and protocols employed by the state of Ohio to execute the sentence of death pursuant to lethal injection violate the Eighth and Fourteenth Amendment of the United States Constitution prohibiting the infliction of cruel and unusual punishment. 2. Plaintiff requests an Order of the Court temporarily, preliminarily and permanently enjoining the state of Ohio, its agents, officials, representatives and employees or others working in concert or cooperation with them from conducting further executions in the state of Ohio, including the execution of Plaintiff, pending a determination by the federal courts that the procedures employed by the state of Ohio in executing inmates condemned to death by lethal injection satisfy contemporary medical, community and constitutional standards that do not raise an unreasonable risk of inflicting cruel and unusual punishment. 3. Plaintiff requests that the Court award him his reasonable attorney fees and costs pursuant to 42 U.S.C. §1988; 4. Plaintiff requests that the Court grant such further relief as it deems just and appropriate in the premises.
9

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--

Case 2:04-cv-01156-GLF-MRA

Document 23

Filed 11/23/2005

Page 15 of 15

Respectfully submitted,

CD. MEZIBOV (Ohio Bar No. 0019315) MEZIBOV & JENKINS, LLP 1726 Young Street Cincinnati, OH 45202 Telephone: (513) 723-1600 Telephone: (513) 723-1620
Trial Counsel for John R. Hicks

10

 
 Cooey v. Taft, Not Reported in F.Supp.2d (2005)
2005 WL 5253337 Only the Westlaw citation is currently available.
United States District Court, S.D. Ohio, Eastern Division. Richard COOEY, Plaintiff,
v. Robert TAFT, Governor, Reginald Wilkinson, Director, and James Haviland, Warden, Defendants.
No. 2:04 CV 1156. | March 28, 2005.
Attorneys and Law Firms Gregory William Meyers, Kelly Leann Culshaw, Ohio Public Defender’s Office, Columbus, OH, for Plaintiff. Michael L. Collyer, Assistant Attorney General, Kelley Ann Sweeney, Ohio Attorney General, Cleveland, OH, Heather L. Gosselin, Assistant Attorney General, Columbus, OH, Marianne Pressman, Ohio Attorney General, Corrections Litigation Section, Cincinnati, OH, for Defendants. Opinion
OPINION AND ORDER
FROST, J. *1 Plaintiff, Richard Cooey, a state prisoner sentenced to death by the State of Ohio, has pending before this Court a civil rights action pursuant to 42 U.S.C. § 1983 challenging multiple facets of the lethal injection protocol used by Ohio. This matter is before the Court on defendants’ motion to dismiss, (doc.no.8), plaintiff’s response, (doc.no.12), and defendants’ reply, (doc.no.13).
I. Overview The complaint alleges that Ohio’s lethal injection protocol risks torturing a conscious inmate to death by suffocation. Defendants move, pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss the complaint on grounds that the complaint is barred by the statute of limitations, barred by res judicata, and/or constitutes an unauthorized successive habeas corpus petition in violation of 28 U.S.C. § 2244(b).
II. Background In his complaint, plaintiff seeks preliminary and permanent injunctive relief barring defendants from executing him in the manner by which defendants plan to execute him, as well as a declaratory judgment that the current means by which defendants carry out executions violate the Eighth and Fourteenth Amendments. Specifically, plaintiff contends that defendants intend to violate plaintiff’s constitutional rights because the current method of execution used by defendants-a lethal injection protocol that includes a short-acting anesthetic that will leave plaintiff paralyzed but conscious during suffocation and death-will cause plaintiff to be tortured to death. Plaintiff also raises challenges about alleged failures on the part of defendants to disclose sufficient details about the lethal injection protocol and certification of the equipment and chemicals to be used, and to ensure that properly trained medical personnel are on hand with appropriate cardiac monitoring equipment. Finally, plaintiff also seeks preliminary and permanent injunctive relief barring defendants from executing him
1

Cooey v. Taft, Not Reported in F.Supp.2d (2005)
unless defendants first give plaintiff the right to choose to have one of his attorneys witness his execution without being forced to choose counsel at the cost of one of the three witnesses condemned inmates are permitted to choose under R.C. § 2949.25(A)(5).
According to defendants, Plaintiff Cooey was convicted and sentenced to death by a three-judge panel in Summit County on December 9, 1986. (Defendants’ Motion to Dismiss, doc.no. 8, at 2). Defendants further state that, in 1993, lethal injection was adopted by Ohio as a method of execution, and that, in 2001, lethal injection became the sole method of execution in Ohio. (Id.). According to defendants, plaintiff filed his habeas corpus petition on October 2, 1996, which petition was denied by the district court on September 4, 1997. (Id.). The Court of Appeals for the Sixth Circuit affirmed that decision on April 16, 2002 and, on March 31, 2003, the Supreme Court of the United States denied plaintiff’s petition for a writ of certiorari. (Id.).
Plaintiff, along with another death-sentenced inmate, Adremy Dennis, initially filed a complaint under § 1983 challenging aspects of Ohio’s lethal injection protocol on June 10, 2004. (Case No. 2:04cv532). On September 16, 2004, this Court denied plaintiffs’ motion for a preliminary injunction but otherwise found that their claims had been properly raised in a § 1983 action. On September 24, 2004, this Court dismissed plaintiffs’ complaint without prejudice for the failure to exhaust administrative remedies.1
*2 Subsequently, on September 27, 2004, Adremy Dennis filed another § 1983 complaint in this Court raising the same challenges that he and Cooey had raised in their initial complaint. (Case No. 2:04cv920). Plaintiff Cooey did not join in that action. On October 6, 2004, this Court issued a decision denying the defendants’ motion, pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss the complaint. (Case No. 2:04cv920, doc.no. 18). Ultimately, Dennis’s § 1983 complaint was dismissed as moot, following his execution.
III. Analysis
In their motion to dismiss filed on January 4, 2005, defendants argue, pursuant to Fed.R.Civ.P. 12(b)(6), that this complaint must be dismissed because the statute of limitations has expired, the claims are barred by res judicata, and/or the complaint constitutes an unauthorized successive habeas corpus petition in violation of 28 U.S.C. § 2244(b). Defendants argue that this Court’s decisions on the motions for a preliminary injunction in Dennis, et al. v. Taft, et al., 2:04cv532, and Dennis v. Taft, et al., 2:04cv920 produced two definitive bars to plaintiff’s instant action. First, according to defendants, this Court’s determination that Dennis was actually aware of the facts giving rise to his claims, at the latest, in May of 2002, means that plaintiff, who is similarly situated, is time-barred from filing the instant complaint. Second, this Court’s determination that Dennis could have included these specific claims in his federal habeas corpus petition means that plaintiff is barred by res judicata from raising his claims in the instant action because he, too, raised them or could have raised them in his federal habeas corpus petition.
Dismissal is warranted under Fed.R.Civ.P. 12(b)(6) “ ‘only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” ’ Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir.1996)(quoting Hishon v. King & Spaulding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)), cert. denied, 520 U.S. 1251 (1997). The focus is not on whether plaintiff will ultimately prevail, but rather on whether he has offered “ ‘either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.” ’ Rippy ex rel. Rippy v. Hattaway, 270 F.3d 416, 419 (6th Cir.2001)(quoting Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.1988)). In making such a determination, the Court must “ ‘construe the complaint liberally in the plaintiff’s favor and accept as true all factual allegations and permissible inferences therein.” ’ Sistrunk, 99 F.3d at 197 (quoting Gazette v. City of Pontiac, 41 F.3d 1061, 1064 (6th Cir.1994)). The Court need not, however, accept conclusions of law or unwarranted inferences of fact. Perry v. American Tobacco Co., Inc., 324 F.3d 845, 848 (6th Cir.2003). The Court may also consider matters of public record, orders, items appearing in the record of the case, and exhibits attached to the Complaint. Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir.2001). With these principles in mind, the Court will consider each of defendants’ arguments as to why plaintiff’s complaint should be dismissed.
A. Statute of Limitations
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Cooey v. Taft, Not Reported in F.Supp.2d (2005)
*3 Defendants argue that plaintiff has failed to assert his § 1983 claim within the two-year statute of limitations applicable to such claims. See Trzebuckowski v. City of Cleveland, 319 F.3d 853, 855-56 (6th Cir.2003)(two-year statute of limitations period found in O.R.C. § 2305.10 applies to § 1983 actions). Citing Dixon v. Anderson, 928 F.2d 212, 215 (6th Cir.1991), defendants argue that, “In determining when the cause of action accrues in section 1983 actions, we have looked to what event should have alerted the typical lay person to protect his or her rights.” Defendants insist that under the law in the Sixth Circuit, it is the issuance of the government order in question-not the carrying out of that order-that starts the statute of limitations. See Tolbert v. Ohio D.O.T., 172 F.3d 934, 939 (6th Cir.1999). Under this reasoning, defendants argue that plaintiff was required to file his § 1983 action at the earliest in 1993, when lethal injection was first authorized as a method of execution in Ohio. In the alternative, defendants argue that plaintiff was required to file his action certainly in 2001, when lethal injection became the sole method of execution in Ohio. For reasons discussed in this Court’s Opinion and Order of December 6, 2004 in Dennis v. Taft, et al., Case No. 2:04cv920, doc.no. 18, as well as plaintiff’s Memorandum Contra, (doc.no.12), this Court rejects both arguments.
In its Opinion and Order of December 6, 2004, this Court concluded that Tolbert “provides little support for [defendants’] argument.” (Opinion and Order, Case No. 2:04cv920, doc.no. 18, at 4). Specifically, this Court noted that while the plaintiffs in Tolbert suffered their injury when the government denied their request for the erection of sound barriers, no constitutional injury had yet occurred in Plaintiff Dennis’s case. (Id.). The Court based its holding on the “unique context of the § 1983 action at issue here: a method-of-execution case in which the complainant concedes that execution by other means would be constitutional.” (Id. at 5). The Court noted that Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004) arguably opened the door to death-sentenced inmates filing § 1983 actions to raise method-of-execution challenges before the actual violation, i.e., execution by the means they challenge, takes place, and that under such reasoning, it would defy common sense to bar on the basis of statute of limitations the assertion of a claim challenging the future infliction of injury. (Id. at 5-6).
Defendants herein challenge the aspect of this Court’s decision in Dennis distinguishing the Sixth Circuit’s Tolbert decision. Specifically, defendants challenge this Court’s reasons for rejecting Tolbert’ s reach in Dennis’s case-namely, that (1) the Nelson v. Campbell decision indicated a belief on the part of the Supreme Court that method-of-execution claims raised in § 1983 actions ought to be heard on the merits; and that (2) logic and common sense dictated that the statute of limitations should not run on claims challenging a constitutional injury that has not occurred yet. First, defendants argue that the Nelson decision did not give death-sentenced inmates carte blanche to use § 1983 actions for raising method-of-execution challenges. Defendants argue that the facts in the Nelson case are distinguishable from the facts in Dennis’s case and plaintiff’s case herein, insofar as Nelson was precluded from filing his method-of-execution challenge in his habeas corpus petition because lethal injection was not authorized as a method of execution at the time he filed his habeas corpus petition. Defendants’ argument is not well taken because, in this Court’s view, Plaintiff Cooey was similarly prevented from raising in his habeas corpus petition the precise method-of-execution challenge he presents in the instant § 1983 action. The record before this Court does not support defendants’ assumption that the facts giving rise to plaintiff’s claim were known to him when he filed his habeas corpus petition in 1996. Although Ohio first authorized lethal injection as a method of execution in 1993, and made it the sole method of execution in 2001, it appears from the limited record before this Court, i.e., exhibits attached in support of the complaint, that the exact procedures to be utilized by defendants in executing Plaintiff Cooey were not known to him until May of 2002. See also Opinion and Order of September 16, 2004 in Dennis, et al. v. Taft, et al., Case No. 2:04cv532, doc.no. 14, at 9-10. Thus, for purposes of the only inquiry stemming from a statute of limitations challenge, i.e., when was plaintiff required to raise his claim-this Court is constrained to reject defendants’ suggestion that Plaintiff Cooey, unlike the plaintiff in Nelson, could have raised his method-of-execution challenge in his 1996 habeas corpus petition.
*4 Defendants also argue that the Supreme Court’s actions in vacating stays of execution issued in numerous post-Nelson cases undermine this Court’s assumption that the Supreme Court in Nelson conveyed a belief that method-of-execution claims raised in § 1983 actions ought to be heard on the merits.2 Defendants’ argument in this regard misses the mark. As plaintiff notes in his memorandum contra, legal principles governing the equitable relief of a preliminary injunction differ from legal principles governing the propriety of a cause of action. Thus, a court’s rationale for rejecting a preliminary injunction cannot be construed necessarily to convey anything with respect to the underlying propriety of the cause of action in connection with which the preliminary injunction was sought. Nothing illustrates that point more vividly than the fact that this Court, in Dennis, et al. v. Taft, et al., Case No. 2:04cv532, and Dennis v. Taft, et al., Case No. 2:04cv920, was constrained under the legal principles governing the equitable relief of preliminary injunctions to deny the plaintiffs’ motions for a preliminary injunction. However, the Court otherwise concluded that the plaintiffs had properly raised their method-of-execution challenges in a § 1983 action. Thus, the Court’s rationale in rejecting their motions for a preliminary injunction conveyed nothing about the Court’s view of the propriety of the plaintiffs’ underlying cause of action.
Defendants also take issue with the Court’s conclusion in Dennis v. Taft, et al., Case No. 2:04cv920, (Opinion and Order of
3

Cooey v. Taft, Not Reported in F.Supp.2d (2005)
October 6, 2004, doc.no. 18), that the plaintiff had not yet suffered the constitutional injury forming the basis of his § 1983 action. Under that reasoning, defendants argue, the plaintiff’s claim would not be ripe until after he was executed, in which case he would never be able to raise his claim because it would be moot. Defendants argue that the principles and facts for raising the method-of-execution challenge raised by plaintiff herein arguably have been available for years. This Court, based on the record as it exists, has already rejected that argument. This Court continues to adhere to its view that Nelson implicitly teaches that a party such as plaintiff is not precluded from raising in a § 1983 action a specific method-of-execution challenge as a potential violation of constitutional rights before the actual violation, i.e., execution by the means challenged by plaintiff, takes place. That is, a plaintiff so situated should not be precluded on statute of limitations grounds from asserting a claim to prevent future injury.
Defendants further argue that plaintiff cannot continue to assert that he was prevented by Sixth Circuit precedent, i.e., In re Sapp, 118 F.3d 460 (6th Cir.1997)(holding that a method-of-execution challenge raised in a § 1983 action was properly construed as a habeas corpus action), from filing his § 1983 action until after the Supreme Court cleared the way for such actions with its Nelson v. Campbell decision. Defendants reason that the plaintiff in Nelson, who was similarly barred by circuit precedent, successfully filed a § 1983 action, and that so long as there remains the possibility of en banc reconsideration and Supreme Court review, circuit precedent cannot be construed as foreclosing an avenue for relief. (Defendants’ Motion to Dismiss, doc.no. 8, at 9). To illustrate their point, defendants note that two inmates on Ohio’s death row, Lewis Williams and John Glenn Roe, defied In re Sapp and filed their § 1983 actions before the Supreme Court issued its Nelson v. Campbell decision. Defendants’ argument is not well taken. In fact, their illustration lends more support to Plaintiff Cooey’s argument that, prior to the Supreme Court’s Nelson decision, death-sentenced inmates in the Sixth Circuit effectively were precluded from raising method-of-execution challenges in § 1983 actions. Defendants are correct that Williams and Roe tried. Defendants neglect to point out, however, that Williams and Roe failed. Their § 1983 action, consistent with In re Sapp, was construed as an unauthorized successive habeas corpus petition and was never fully heard on the merits. In re Williams, 359 F.3d 811 (6th Cir.2004). Thus, even assuming the Court were willing to assume that plaintiff could have tried to file his § 1983 action prior to the Supreme Court’s Nelson decision, the Court is not willing to hold, for statute of limitations purposes, that plaintiff was required to try to file his § 1983 action prior to the Supreme Court’s Nelson decision.
*5 In sum, the Court rejects defendants’ arguments that the statute of limitations on the method-of-execution challenge raised by plaintiff in this § 1983 action began to run either in 1993, when Ohio first adopted lethal injection as a method of execution, or in 2001, when Ohio made lethal injection the sole method of execution. That is not to say, however, that the Court accepts plaintiff’s assertion that because execution is a unique circumstance, a complaint of the nature he has raised can never be time-barred. The Court is persuaded that the correct answer lies somewhere in between, and that the key factors in the accrual of this cause of action are the imminency of the plaintiff’s execution combined with knowledge of the facts giving rise to his specific method-of-execution challenge.
Defendants complain that plaintiff ignores controlling Sixth Circuit case law, Dixon v. Anderson, 928 F.2d 212, 215 (6th Cir.1991)(“in determining when the cause of action accrues in section 1983 actions, we have looked to what event should have alerted the typical lay person to protect his or her rights.”), insofar as plaintiff “points to no certain event that has now alerted him to protect his rights.” (Defendants’ Reply, doc.no. 13, at 2). The Court does not agree. Plaintiff has suggested that it would be nonsensical and wasteful to require those recently sentenced to death to immediately file § 1983 actions raising a method-of-execution challenge, when such inmates could see their convictions or death sentences reversed eight or ten years down the road or the defendants could change the execution protocol that was in place when the inmates filed their § 1983 actions. Thus, plaintiff appears to be suggesting that the limitations period begins to run on a § 1983 action raising a method-of-execution claim when the execution becomes imminent. The Court is inclined to agree, and there is some authority lending support to that position.
Logically, and consistent with Sixth Circuit precedent holding that the cause of action accrues in § 1983 actions at the occurrence of an event that would alert the typical lay person to protect his or her rights, the 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. As for when a plaintiff knows or has reason to know the facts giving rise to his specific method-of-execution claim, the limited record before the Court suggests that the specific protocol challenged by Plaintiff Cooey herein, and thus the facts giving rise to his claim, derived not from a statute or administrative regulation, but
4

Cooey v. Taft, Not Reported in F.Supp.2d (2005)
from officials with the Ohio Department of Rehabilitation and Correction. (Complaint, doc.no. 3, at Exhs. 9, 10A, and 10B). That being so, it appears that the protocol is subject to alteration until the time of execution. Accordingly, requiring a death-sentenced plaintiff to file his method-of-execution challenge any sooner strikes this Court as potentially wasteful and possibly absurd, given the possibility that, prior to his execution becoming imminent, a plaintiff could see his conviction or death sentence reversed, or the alteration of the precise execution protocol that plaintiff might seek to challenge as unconstitutional.
*6 The Court’s position finds some support in recent and analogous case law. In Beardslee v. Woodford, 395 F.3d 1064, 1069 (9th Cir.), cert. denied, 543 U.S. 1096, 125 S.Ct. 982, 160 L.Ed.2d 910 (2005), the Court of Appeals for the Ninth Circuit, in discussing whether the plaintiff therein had acted promptly in raising his method-of-execution claim, seemed to endorse imminency of execution as a key factor in determining when a method-of-execution claim ought to be filed, remarking, “Beardslee correctly points out that the precise execution protocol is subject to alteration until the time of execution.” The Court went on to note that it had not yet resolved the question of when method-of-execution challenges become ripe, but again discussed cases endorsing imminency of execution as a key factor in resolving that question.
To date, we have not resolved the question of when challenges to execution methods are ripe. In Stewart v. Martinez-Villareal, 523 U.S. 637, 644-45, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998), the Supreme Court held that an inmate’s competency challenge was properly dismissed as unripe because “his execution was not imminent and therefore his competency to be executed could not be determined at that time.” The Court held that the inmate’s claim was “unquestionably ripe” only after it was clear that he “would have no federal habeas relief for his conviction or his death sentence, and the Arizona Supreme Court issued a warrant for his execution.” Id. at 643, 523 U.S. 637, 118 S.Ct. 1618, 140 L.Ed.2d 849. We have suggested that a constitutional challenge to an execution method becomes ripe when the execution method is chosen. LaGrand v. Stewart, 170 F.3d 1158, 1159 (9th Cir.1999). However, because the execution protocol is subject to change, Beardslee argues that his challenge to the protocol, as opposed to a generic challenge to the statutorily specified method, did not become ripe until his execution was imminent as described in Martinez-Villareal. We need not, and do not resolve this question.
Beardslee, 395 F.3d at 1069, n. 6.
For the foregoing reasons, this Court is of the view 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. When these two conditions have been met, a death-sentenced inmate is on notice of the need to protect his or her rights. Dixon v. Anderson, supra, 928 F.2d at 215 (“in determining when the cause of action accrues in section 1983 actions, we have looked to what event should have alerted the typical lay person to protect his or her rights.”). In the instant case, Plaintiff Cooey knew or had reason to know of the facts giving rise to the specific allegations he has presented in the instant complaint in May 2002. Plaintiff Cooey’s execution became imminent when the United States Supreme Court denied certiorari as to his habeas corpus proceedings on March 31, 2003. (Defendants’ Motion to Dismiss, doc.no. 8, at 2). Thus, on March 31, 2003, plaintiff’s execution was imminent and he knew or had reason to know of the facts giving rise to his claim; plaintiff had two years from that date to file his method-of-execution claim. Plaintiff filed the instant action on December 8, 2004, three months before the expiration of the statute of limitations.
*7 Having determined when method-of-execution claims must be raised for statute of limitations purposes, this Court cautions plaintiffs that nothing about the Court’s determination in this regard should be construed as guaranteeing or even suggesting that a plaintiff who waits too long to file his § 1983 action raising a method-of-execution claim will be entitled to a preliminary injunction. As the Court noted in its Opinion and Order of October 6, 2004 in Dennis v. Taft, et al., Case No. 2:04cv920, doc.no. 18, at 6, “common sense also dictates vigilance on the part of a plaintiff. A plaintiff who waits too long to assert his or her claim-such as here-risks possessing a potentially valid claim while lacking any right to a stay.” This Court has explained that legal principles governing the equitable relief of a preliminary injunction differ from legal principles governing the propriety of a cause of action. As noted supra, in Dennis, et al. v. Taft, et al., Case No. 2:04cv532, and Dennis v. Taft, et al., Case No. 2:04cv920, this Court concluded that the plaintiffs had properly raised their method-of-execution challenges in a § 1983 action, but was constrained under the legal principles governing the equitable relief of preliminary injunctions to deny the plaintiffs’ motions for a preliminary injunction. Plaintiff Dennis was executed before the merits of his otherwise valid § 1983 action could be heard. Similarly situated plaintiffs are duly warned.
In sum, having squarely rejected the only two arguments raised by defendants, i.e., that plaintiff’s cause of action began to accrue in 1993 or 2001 at the latest, and determining that plaintiff’s cause of action began to accrue when the United States Supreme Court denied certiorari, i.e., March 31, 2003, the Court denies defendants’ motion, pursuant to Fed.R.Civ.P.
5

Cooey v. Taft, Not Reported in F.Supp.2d (2005)
12(b)(6), to dismiss the instant complaint as time-barred.
B. Res Judicata
Defendants argue in their second ground for dismissal that plaintiff’s § 1983 action is barred by the doctrine of res judicata. This doctrine would bar re-litigation in this § 1983 action of those claims that plaintiff raised or could have raised in his prior habeas corpus petition. See Jackson v. Kinkela, 187 F.3d 636, 1999 WL 623672, at *2 (6th Cir.1999) (unpublished table decision).
As in Dennis, this Court concludes that res judicata is inapplicable to the instant complaint for two reasons. First, contrary to defendants’ assertion, plaintiff did not raise in his 1996 habeas corpus petition the specific arguments he raises herein challenging the lethal injection protocol by which defendants intend to execute him. According to defendants, the following claim raised by plaintiff in his habeas corpus petition constitutes the same claim he raises herein:
Based on the evidence of the cruelty and barbarism involved in executions, Petitioner Cooey’s rights as guaranteed to him by the Due Process Clause of the Fifth Amendment to the United States Constitution, the prohibition against Cruel and Unusual Punishment as guaranteed by the Eighth Amendment to the United States Constitution, and the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution will be violated if he is executed by electrocution or any other means.
*8 (Defendants’ Motion to Dismiss, doc.no. 8, at 10). Defendants argue that the “any other means” refers to lethal injection and that plaintiff therefore raised in his habeas corpus petition the challenge he seeks to raise in the instant § 1983 action. Since the argument raised by plaintiff in his habeas corpus petition was addressed and rejected, defendants argue that plaintiff is barred by res judicata from re-litigating the claim now. In short, it tests the limits of credulity to suggest that the general argument plaintiff raised in his habeas corpus petition and the specific arguments he raises herein are one and the same. See, e.g, Beardslee v. Woodford, supra, 395 F.3d at 1068 (holding that generic challenge to California’s statutory methods of execution raised in earlier habeas corpus petition did not preclude plaintiff from raising specific challenge to lethal injection protocol in § 1983 action). Defendants’ argument in this regard must be rejected.
Second, defendants have not persuaded this Court that plaintiff could have raised in his habeas corpus petition the specific arguments he raises herein challenging the lethal injection protocol by which defendants intend to execute him. Citing Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), and a 1993 book by Dr. Jack Kevorkian titled Prescription: Medicide, defendants argue that there are reasons to believe that both the standards of decency and the scientific knowledge were in place for the litigation of plaintiff’s specific challenge by 1996, when he filed his habeas corpus petition. The Court disagrees. As the Court noted in Dennis, “The limited record before the Court indicates that Plaintiff could have and should have challenged the specific lethal injection protocol involved shortly after May 2002-a fact that precluded the preliminary injunctions sought in both this action and the earlier § 1983 case-but not that Plaintiff knew or had reason to know that his specific constitutional claim existed at the time of the filing of his habeas petition in 1998.” Opinion and Order of October 6, 2004, Case No. 2:04cv920, doc.no. 18, at 7. That is, the facts giving rise to Plaintiff Dennis’s specific challenge were not known to him prior to May 2002; Plaintiff Cooey is similarly situated in that regard. Defendants have asserted nothing new in the instant motion to dismiss to persuade the Court otherwise. Construing the complaint liberally in plaintiff’s favor and accepting as true all factual allegations and permissible inferences therein, this Court cannot conclude that plaintiff could have raised in his 1996 habeas corpus petition the specific arguments he raises herein challenging the lethal injection protocol by which defendants intend to execute him.
Nor could plaintiff, given the constraints on filing successive habeas corpus petitions set forth in 28 U.S.C. § 2244(b)(2), have been expected to raise these allegations in a successive habeas corpus petition once he became aware of them. Defendants, while seeming to concede that plaintiff would have had trouble satisfying all of the conditions in § 2244(b)(2), assert nonetheless that plaintiff could have tried. The Court disagrees and is not persuaded that the theoretical existence of such a longshot is sufficient to justify a holding that plaintiff could have raised his allegations in a successive habeas corpus petition and, therefore, that plaintiff is barred by res judicata from raising his allegations in the instant § 1983 action. For the foregoing reasons and consistent with this Court’s Opinion and Order of October 6, 2004 in Dennis v. Taft, et al., Case No. 2:04cv920, doc.no. 18, the Court denies defendants’ motion, pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss the instant complaint on the basis of res judicata.
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Cooey v. Taft, Not Reported in F.Supp.2d (2005)

C. Successive Habeas Corpus Petition
*9 Finally, defendants assert that plaintiff’s § 1983 action must fail because it is an unauthorized second or successive habeas corpus petition in violation of 28 U.S.C. § 2244(b). This Court rejected that argument in Dennis, et al. v. Taft, et al., Case No. 2:04cv532, doc.no. 14, and in Dennis v. Taft, et al., 2:04cv920, doc.no. 10. For the reasons that follow, this Court concludes that defendants have presented no new rationale for disturbing those prior decisions.
Defendants argue that the two factors cited by the Supreme Court for concluding in Nelson v. Campbell that the plaintiff’s method-of-execution challenge was properly construed as a § 1983 action instead of a habeas corpus petition-i.e., (1) the severability of the “cut-down” procedure challenged by Nelson from the execution itself; and (2) Nelson’s explicit concession that a specifically identified alternative would remedy his complaint-are absent from Plaintiff Cooey’s case. The Court disagrees. A careful reading of the complaint reveals that Plaintiff Cooey challenges specific facets of the lethal injection protocol by which defendants intend to execute him, but does not challenge lethal injection itself or his execution in general. Defendants’ argument to the contrary is belied by the face of the complaint. Defendants further argue that plaintiff has offered no alternative for how his execution can be carried out. Again, the Court disagrees. Plaintiff has conceded that an alternative is possible, even if he has neglected at this point to offer specifics. (Complaint, doc.no. 3, at p. 4, ¶ 6). Further, the expert upon which plaintiff relies, Dr. Mark J.S. Heath, has offered alternatives in his affidavit. (Complaint, doc.no. 3, at Exhibit 11). The Court is not persuaded that plaintiff’s failure to offer a specific alternative to the lethal injection protocol established by defendants requires the Court to construe the instant § 1983 action as a second or successive habeas corpus petition.
Finally, defendants argue that habeas corpus is the more likely label for the instant suit because the relief plaintiff requests, i.e., an order enjoining his execution as opposed to an order enjoining just the allegedly unconstitutional facets of his execution, is overbroad for § 1983 purposes. Again, a careful reading of the complaint belies defendants’ argument. None of plaintiff’s requests for declaratory or injunctive relief seek to bar defendants from executing him in general; rather, they seek to prevent defendants from executing him “in the manner by which Defendants currently intend to execute” him. (Complaint, doc.no. 3, at ¶ 56A). That being so, the Court is not willing to construe the relief requested by plaintiff as overbroad for § 1983 purposes sufficient to compel this Court to construe the instant suit as a habeas corpus petition.
For the foregoing reasons, this Court again concludes that plaintiff properly filed his action pursuant to § 1983 and rejects defendants’ contention that the complaint must be construed as a second or successive habeas corpus petition.

IV. Conclusion *10 For the foregoing reasons, defendants’ motion to dismiss the complaint, pursuant to Fed.R.Civ.P. 12(b)(6), is DENIED.

Footnotes

1

Plaintiff avers that he has exhausted his administrative remedies. Exhibits 1-7 attached to his complaint support his assertion and

defendants do not argue otherwise.

2

“In vacating the stays of execution issued by the lower courts subsequent to its decision in Nelson, the Supreme Court did not rule

on the ‘merits’ of the prisoners’ Eighth Amendment claims where the lower courts granting stays had not ruled on the ‘merits.’

Seee.g.,Johnson v. Reid, 2004 U.S. LEXIS 4914 (Sept. 9, 2004); Sizer v. Oken, 542 U.S.916, 124 S.Ct. 2868, 159 L.Ed.2d 290,

2004 U.S. LEXIS 4381 (U.S.2004)(vacating stay of execution). * * * This leaves no doubt whatsoever that the Supreme Court did

not intend its Nelson decision to be interpreted as establishing an absolute right for death row prisoners to litigate the ‘merits’ of

challenges to the methods of their executions via actions under Section 1983.” (Defendant’s Motion to Dismiss, doc.no. 8, at 7-8).

7

 
 Collyer, Michael Leonard, Attorney and Judge Profiles

Contact Information Michael Leonard Collyer Organization: The United States Attorney’s Office, Northern District of Ohio

Phone: (216) 622-3744 Website: http://www.justice.gov/usao/ohn/index.html

United States Court House 801 West Superior Avenue; Suite 400 Cleveland, Ohio 44113-1852 Cuyahoga County U.S.A.

Position: Assistant United States Attorney
Education: Ohio State University Michael E. Moritz College of Law, Columbus, Ohio, United States of America
Admitted: Ohio, 1993
Total Firm Size: 51-100
Office Size: 51-100 This constitutes the most current information Thomson Reuters Westlaw has on record for this listing. If you wish to update this information, please use the “Update Your Profile” link under Related Tools.

1

 
 Cooey v. Taft, Not Reported in F.Supp.2d (2006)
2006 WL 2709775 Only the Westlaw citation is currently available.
United States District Court, S.D. Ohio,
Eastern Division.
Richard COOEY, et al., Plaintiffs, v.
Robert TAFT, et al., Defendants.
No. 2:04-CV-1156. | Sept. 20, 2006.
Attorneys and Law Firms
Gregory William Meyers, Kelly Leann Culshaw, Ohio Public Defender’s Office, Columbus, OH, for Plaintiff Richard Cooey.
Michael L. Collyer, Heather L. Gosselin, Assistant Attorneys General, Kelley Ann Sweeney, Ohio Attorney General, Cleveland, OH, for Defendants.
Opinion
OPINION AND ORDER
GREGORY L. FROST, District Judge.
*1 This matter is before the Court for consideration of an emergency motion to intervene (Doc. # 65-1) filed by Jeffrey Lundgren, Defendants’ memorandum in opposition (Doc. # 69), and Lundgren’s reply (Doc. # 71). For the reasons that follow, the Court DENIES WITHOUT PREJUDICE the motion to intervene.
I. Discussion
Richard Cooey, a state prisoner sentenced to death by the State of Ohio, is the original plaintiff in the captioned civil rights action pending before this Court that challenges multiple facets of the lethal injection protocol used by the State of Ohio. On November 23, 2005, John R. Hicks was permitted to intervene in the action.1 (Doc. # 26.) On January 9, 2006, Jeffrey D. Hill was permitted to intervene in the action. (Doc. # 35.) On June 16, 2006, Johnnie Baston and Arthur Tyler were permitted to intervene in the action. (Doc. # 54.) On September 1, 2006, Jeffrey Lundgren filed an emergency motion to intervene. (Doc. # 65-1.)
The original complaint alleges that Ohio’s lethal injection protocol risks torturing a conscious inmate to death by suffocation. Defendants oppose Lundgren’s motion to intervene, not only on the basis of his failure to exhaust administrative remedies, but also because, in Defendants’ view, Lundgren is attempting to circumvent rules governing class actions and Lundgren’s obesity, diabetes, and hypertension present unique medical problems not accounted for by the current protocol. (Doc. # 69, at 3, 6.) Regarding Defendants’ exhaustion argument, the record before this Court does not reflect that Lundgren, before attempting to intervene in this action, exhausted his administrative remedies by filing a grievance challenging the lethal injection protocol. However, Lundgren avers in his reply that “[s]teps are being taken to exhaust those remedies....” (Doc. # 71, at 2.)
The Prison Litigation Reform Act (“PLRA”) provides in relevant part that:
No action shall be brought with respect to prison conditions under section 1983 of this title, or any 1

Cooey v. Taft, Not Reported in F.Supp.2d (2006)
other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.
42 U.S.C. § 1997e(a). The Sixth Circuit has explained that “[t]he Act was passed to reduce frivolous prisoner lawsuits and to reduce the intervention of federal courts into the management of the nation’s prison systems.” Freeman v. Francis, 196 F.3d 641, 643 (6th Cir.1999).
It is now well settled that complete exhaustion of administrative remedies, while not jurisdictional, is a mandatory pre-condition to the filing of an action in federal court challenging prison conditions. Thomas v. Woolum, 337 F.3d 720, 725 (6th Cir.2003); Knuckles El v. Toombs, 215 F.3d 640, 640 (6th Cir.2000); Freeman, 196 F.3d at 645; Brown v. Toombs, 139 F.3d at 1103-04. In order to demonstrate that he or she has completely exhausted his or her administrative remedies, a plaintiff must attach to the complaint in federal court a copy of the administrative dispositions. Knuckles El, 215 F.3d at 640; Brown, 139 F.3d at 1104. If it does not appear that a plaintiff has completely exhausted his or her administrative remedies, the federal court should dismiss the complaint without prejudice. Brown, 139 F.3d at 1104.
*2 The exhaustion requirement set forth in the PLRA applies only to claims challenging “prison conditions.” However, the PLRA does not define “prison conditions.” Accordingly, the Sixth Circuit held “that the scope of § 1997e(a)’s exhaustion requirement is determined by the definition of a ‘civil action with respect to prison conditions’ as set forth in [42 U.S.C.] § 3626(g)(2).” Freeman, 196 F.3d at 644. That section, in turn, provides:
The term “civil action with respect to prison conditions” means any civil proceeding arising under federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include habeas corpus proceedings challenging the fact or duration of confinement in prison.
42 U.S.C. § 3626(g)(2).
In a related complaint filed by Richard Cooey and Adremy Dennis, this Court concluded that the complaint filed by the plaintiffs challenging Ohio’s lethal injection protocol was an action “with respect to prison conditions” within the meaning of 42 U.S.C. §§ 1997e(a) and 3626(g)(2), and that the plaintiffs had available to them under O.A.C. 5120-9-31 the prison administrative remedy of a grievance filed directly with the Office of the Chief Inspector of the Ohio Department of Rehabilitation and Correction. (Case No. 2:04-cv-532, Doc. # 20.) The Court went on to dismiss the complaint without prejudice, due to the plaintiffs’ failure to exhaust the administrative remedies available to them.
Cooey and Dennis subsequently exhausted their administrative remedies by filing grievances directly to the Office of the Chief Inspector, and thereafter filed new complaints in this Court (Case Nos. 2:04-cv-1156 and 2:04-cv-920, respectively). The Chief Inspector issued nearly identical decisions dismissing those grievances. Specifically, the decision in Cooey’s case was as follows:
The Office of the Chief Inspector is in receipt of your Notification of Grievance. In your grievance, you challenge the means by which lethal injection is conducted as it relates to an execution. You also challenge not being able to have your attorney present during the execution unless the attorney attends as one of the three witnesses you are allowed.
In regards to witnesses this is controlled by statute, which is not within the control of the director or warden. O.R.C. 2949.25 states “only the following persons may be present:” It goes on to list the warden and any other person selected by the director to ensure that the death sentence is executed, the sheriff, the director or director’s agent, physicians, “the clergy person in attendance upon the prison, and not more than three other persons to be designated by the prisoner, who are not confined in any state institution;” not more than three persons to be designated by the immediate family of the victim, and representatives of the news media. Any prosecutor that is present would be a designee of the immediate family of the victim and one of their three permitted witnesses. Accordingly because there is no specific provision to permit your attorney to be present, your attorney can only attend as one of your designated witnesses.
*3 As it relates to the means used to carry out the lethal injection: DRC Policy # 01-COM-11 states that it is the policy of the department to carry-out the process in a professional, humane, sensitive and dignified manner. Each person involved in administering the lethal injection is required to be appropriately qualified under Ohio law to perform the task they are required to perform i.e. administer medications, prepare the intravenous injection, etc. This policy and procedure was developed and designed based upon research and information received from various sources, including other states that perform lethal injections. It is also noted this matter is currently the subject of litigation, therefore a proper court of law will ultimately decide the legality of the methods used.
2

Cooey v. Taft, Not Reported in F.Supp.2d (2006)
This grievance is DISMISSED.
(Case No. 2:04-cv-1156, Doc. # 2-2, at 24.) Cooey’s action remains pending; he is the primary named plaintiff in the action in which Lundgren seeks to intervene. Dennis’s action ultimately was dismissed, following his execution. (Case No. 2:04-cv-920, Doc. # 25.)
On November 23, 2005, this Court issued an order allowing John R. Hicks to intervene in the instant action. Hicks had asserted that exhaustion of his administrative remedies was futile, but had in any event attempted to exhaust his remedies by the time he had sought to intervene. Because he had received no response to his grievance despite the immediacy of his pending execution date, the Court allowed his claim to proceed. (Case No. 2:04-cv-1156, Doc. # 35, at 7.) Ultimately, the Court concluded that Hicks was not entitled to a preliminary injunction staying his execution, and he was dismissed as a party from this action on January 4, 2006, following his execution. (Doc. # 34.)
On January 9, 2006, this Court issued an order allowing Jeffrey D. Hill to intervene in the instant action. (Doc. # 35.) Regarding the prerequisite of exhausting his available administrative remedies, Hill averred in his proffered complaint that the requirement was inapplicable to him because of the decision that had been issued by the Chief Inspector dismissing Cooey’s grievance. (Id. at 4.) This Court agreed. Specifically, the Court concluded that the Chief Inspector had provided no reason for denying Cooey’s grievance that spoke to the core issue of his grievance: the protocol used in executing the inmate. (Id. at 5-6.) The Court also concluded that the only portion of the Chief Inspector’s decision that did touch upon the core issue amounted to a non-decision that effectively evaded the merits of the issue so long as they were part of a litigation pending in federal court. (Id. at 6-7.) Ultimately, the Court concluded “that based on the limited information in the record, Ohio does not-on the narrow method-of-execution issue and at least during the litigation forming the captioned case-have an ‘available’ administrative grievance process as federal law requires.” (Id. at 8.) To be clear, regarding Defendants’ argument that exhaustion of administrative remedies is mandatory, even if it is a foregone conclusion that pursuit of those remedies will be futile, the Court concluded that the administrative remedy at issue was unavailable, not futile. (Id. at 7-8.)
*4 On June 16, 2006, this Court issued an order allowing Johnnie Baston and Arthur Tyler to intervene in the instant action. (Doc. # 54.) Whether these parties had exhausted their administrative remedies was not an issue, because Defendants raised no new arguments concerning the exhaustion requirement following the conclusions this Court had reached as to Hill. (Doc. # 50, at 3; Doc. # 51, at 3.)
On August 21, 2006, Jerome Henderson filed a pro se motion to intervene in the instant action. (Doc. # 60.) On September 8, 2006, Defendants filed a memorandum in opposition. (Doc. # 68.) Henderson has not yet filed a reply. His motion to intervene remains pending.
On September 1, 2006, Lundgren filed an emergency motion to intervene in the instant action. (Doc. # 65.) Defendants filed a response in opposition on September 8, 2006. (Doc. # 69.) Lundgren filed a reply on September 14, 2006. (Doc. # 71.) This matter is now before the Court on the question of whether Lundgren should be permitted to intervene. The Court is constrained to answer that question in the negative.
Regarding the mandatory pre-condition of complete exhaustion of administrative remedies, Defendants argue in opposing Lundgren’s motion to intervene that, subsequent to this Court’s conclusion as to Hill’s motion to intervene that administrative remedies were not available on the narrow method-of-execution issue, “intervening changes in both law and the facts warrant reconsideration of that position.” (Doc. # 69, at 3.) Specifically, Defendants note that a decision issued by the Chief Inspector on June 23, 2006 dismissing the grievance filed by Johnnie Baston conflicts with this Court’s prior interpretations, insofar as it directly addressed the core issue of Baston’s grievance: the protocol used in executing the inmate. (Doc. # 69, at 4-5.) Defendants assert that “[t]here is now evidence then that the administrative review process is an available remedy.” (Id. at 5.) The Court agrees.
A review of the Decision of the Chief Inspector as to Johnnie Baston’s grievance (Doc. # 69) reveals a one-hundred-eighty-degree turn on the part of the Chief Inspector with respect to addressing the core issue of grievances challenging the protocol used in executing the inmate. In dismissing the grievances filed by Cooey and Dennis, the Chief Inspector did not provide a reason that spoke to the core issue of the grievance; rather, the Chief Inspector simply noted the policy underlying executions in Ohio, the qualifications of the people involved, and the development of the policy. (See Doc. # 35, at 5-6.) To the extent that the Chief Inspector did touch upon the core issue of the grievance, he “punted the issue to the judicial branch” (Doc. # 35, at 6), thereby serving notice, in this Court’s view, that the administrative remedy was unavailable during the pendency of this litigation on the specific method-of-execution claim involved here. The decision issued by the Chief Inspector dismissing Johnnie Baston’s grievance, on the other hand, addressed the core issue head on. Citing an
3

Cooey v. Taft, Not Reported in F.Supp.2d (2006)
affidavit by Dr. Mark Dershwitz, the Chief Inspector concluded, among other things, that “[t]o the extent that your grievance alleges that the department’s method of execution will result in unnecessary pain and suffering, your allegation is without merit and your grievance must be denied.” (Doc. # 69-2, at 2.) That being the case, the Court is constrained to find that, as to Jeffrey Don Lundgren, the administrative remedy of a grievance directly to the Office of the Chief Inspector pursuant to O.A.C. 5120-9-31 is an available remedy within the meaning PLRA. See 42 U.S.C. § 1997e(a).
*5 The Court’s conclusion in this regard does not reach back retroactively to plaintiffs Hill, Baston, or Tyler. The limited information available to the Court at the time they filed their motions to intervene demonstrated that Ohio did not have an available administrative grievance process on the narrow method-of-execution issue and at least during the litigation forming the captioned case. That the landscape in this regard has now apparently changed does not and should not impact Hill, Baston, or Tyler.
In sum, the Court is constrained to deny Lundgren’s emergency motion to intervene (Doc. # 65-1), without prejudice, due to Lundgren’s failure to exhaust administrative remedies available to him in violation of 42 U.S.C. § 1997e(a). Because the Court is denying Lundgren’s motion on the basis of his failure to exhaust administrative remedies, the Court need not address Defendants’ additional arguments against allowing Lundgren to intervene.
In his reply, Lundgren states that “[s]teps are being taken to exhaust [administrative] remedies however, it is imperative that a stay be granted and the ultimate sentence held in abeyance pending the grievance process exhaustion.” (Doc. # 71.) There is no motion before the Court for a preliminary injunction to stay Lundgren’s execution. Assuming that Lundgren intends to exhaust his administrative remedies and attempt to intervene in this action following complete exhaustion, he is advised that, in addition to filing any motion to intervene in this action, he must also file a separate motion for a preliminary injunction to stay his execution.
The Court hastens to add what should be readily apparent to all parties involved: Time is of the essence. Lundgren faces an execution date of October 24, 2006. Lundgren can do his part by taking the necessary steps to promptly and properly pursue his administrative remedies, steps that he avers are already being taken. The Court can only hope that prison officials will do their part by taking prompt action on any administrative grievance filed by Lundgren.

II. Conclusion
For the foregoing reasons, Jeffrey Don Lundgren’s emergency motion to intervene is DENIED WITHOUT PREJUDICE. (Doc. # 65-1.)
IT IS SO ORDERED.

Footnotes

1

Hicks thereafter was dismissed as a plaintiff on January 4, 2006, following his November 29, 2005 execution. (Doc. # 34.)

4

 
 Cooey v. Taft, Not Reported in F.Supp.2d (2006)
2006 WL 3043116 Only the Westlaw citation is currently available.
United States District Court, S.D. Ohio,
Eastern Division.
Richard COOEY, et al., Plaintiff, v.
Robert TAFT, et al., Defendants.
No. 2:04-cv-1156. | Oct. 24, 2006.
Attorneys and Law Firms
Gregory William Meyers, Kelly Leann Culshaw, Ohio Public Defender’s Office, Columbus, OH, for Plaintiff.
Michael L. Collyer, Assistant Attorney General, Kelley Ann Sweeney, Ohio Attorney General, Cleveland, OH, Heather L Gosselin, Assistant Attorney General, Columbus, OH, for Defendants.
Opinion
OPINION AND ORDER
GREGORY L. FROST, District Judge.
*1 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 upon Jerome Henderson’s emergency motion to intervene (Doc. # 60), Defendants’ brief in opposition (Doc. # 68), and Henderson’s reply (Doc. # 76).1 For the reasons that follow, Henderson’s motion is
DENIED WITHOUT PREJUDICE. On September 20, 2006, this Court issued an opinion and order denying without prejudice Jeffrey Lundgren’s emergency motion to intervene, explaining that Lundgren had failed to exhaust administrative remedies-namely, a direct grievance to the Office of the Chief Inspector pursuant to Ohio Administrative Code § 5120-9-31-as required by the Prison Litigation Reform Act (“PLRA”), i.e., 42 U.S.C. § 1997e(a). The Court incorporates by reference that decision and attaches it for convenience. (Doc. # 73.) On October 5, 2006, this Court issued an opinion and order denying without prejudice Lundgren’s amended emergency motion to intervene, this time because of Lundgren’s failure to demonstrate complete exhaustion of his administrative remedies with evidence of the administrative disposition of his grievance, i.e., a decision by the Chief Inspector. The Court incorporates by reference that decision and attaches it for convenience. (Doc. # 86 .)
Turning to Henderson’s emergency motion to intervene in this action, it does not appear from the face of that motion that Henderson has exhausted his administrative remedies as required by the PLRA. That is, it does not appear that, at the time that Henderson filed his motion to intervene, he had filed a grievance directly to the Office of the Chief Inspector and had received a decision by the Chief Inspector disposing of that grievance. It appears that, on August 28, 2006, Henderson filed both an appeal to the Office of the Chief Inspector (Doc. # 76-4) and a grievance directly to the Office of the Chief Inspector (Doc. # 76-5). It does not appear that the Chief Inspector has issued a decision on either. Thus, at the time he filed his emergency motion to intervene, Henderson had not completely exhausted his administrative remedies as required by the PLRA. See, e.g., Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir.1998) (“A prisoner should attach to his § 1983 complaint the administrative decision, if it is available, showing the administrative disposition of his complaint.”); see also Knuckles El v. Toombs, 215 F.3d 640, 642 (6th Cir.2000) (“a prisoner must plead his claims with specificity and show that they have been exhausted by attaching a copy of the applicable administrative dispositions to the complaint or, in the absence of written
1

Cooey v. Taft, Not Reported in F.Supp.2d (2006)
documentation, describe with specificity the administrative proceeding and its outcome.”).
Henderson urges this Court to issue an order deeming his administrative remedies to have been exhausted due to the failure of the Chief Inspector to issue a decision on his grievance within thirty days of receipt of that grievance or to demonstrate good cause, with notice to Henderson, for extending the thirty-day limit. (Doc. # 88.) It is true, as Henderson points out, that Ohio Administrative Code § 5120-9-31(L) requires the Chief Inspector to respond within thirty calendar days of receipt of the grievance or to demonstrate good cause, with notice to the inmate, for extending the time in which to respond. Henderson is also correct that, under controlling Sixth Circuit law, “administrative remedies are exhausted when prison officials fail to timely respond to a properly filed grievance.” Boyd v. Corr. Corp. of Am., 380 F.3d 989, 996 (6th Cir.2004). These facts are of no avail to Henderson, however, because exhaustion of his administrative remedies must be complete at the time that he files his complaint. At the time that Henderson filed his emergency motion to intervene and proposed complaint, exhaustion of his administrative remedies-i.e., the filing of a grievance directly to the Chief Inspector and either a decision by the Chief Inspector or the expiration of the thirty-day limit for issuing a decision without a demonstration of good cause and notice to Henderson-was not complete. Under the PLRA and Sixth Circuit law, an inmate is not permitted to file his § 1983 complaint and then exhaust his administrative remedies. Rather, he must completely exhaust his administrative remedies before he files his § 1983 complaint. See, e.g., 42 U.S.C. § 1997e(a); Brown v. Toombs, supra, 139 F.3d at 1104; White v. McGinnis, 131 F.3d 593, 595 (6th Cir.1997).
*2 In sum, the Court is constrained to deny Henderson’s emergency motion to intervene (Doc. # 60), without prejudice, due to Henderson’s failure to exhaust administrative remedies available to him in violation of 42 U.S.C. § 1997e(a). Although Henderson could argue that exhaustion of his administrative remedies is now complete, given the fact that it does not appear that the Chief Inspector, within thirty days of receiving Henderson’s grievance, issued a response or demonstrated good cause with notice to Henderson for extending that thirty-day time limit, that was not the case at the time that Henderson filed his motion to intervene and proposed complaint. Therefore, this Court is constrained to dismiss his emergency motion to intervene for want of exhaustion.
For the foregoing reasons, Jerome Henderson’s emergency motion to intervene (Doc. # 60) is DENIED WITHOUT PREJUDICE for the failure to exhaust administrative remedies. The Court DENIES AS MOOT all of Henderson’s related motions (Docs.# 62, 78, 88).
IT IS SO ORDERED.

Footnotes

1

Also before the Court are Henderson’s motion to supplement the pleadings (Doc. # 62), amended complaint for injunctive and

declaratory relief (Doc. # 63), motion to supplement the pleadings (Doc. # 78), and motion to deem administrative remedies

exhausted (Doc. # 88).

2

 
 Cooey v. Taft, Not Reported in F.Supp.2d (2006)
2006 WL 3793308 Only the Westlaw citation is currently available.
United States District Court, S.D. Ohio,
Eastern Division.
Richard COOEY, et al., Plaintiff, v.
Robert TAFT, et al., Defendants.
No. 2:04-cv-1156. | Nov. 9, 2006.
Attorneys and Law Firms
Gregory William Meyers, Kelly Leann Culshaw, Ohio Public Defender’s Office, Columbus, OH, for Plaintiff.
Michael L. Collyer, Assistant Attorney General, Kelley Ann Sweeney, Ohio Attorney General, Cleveland, OH, Heather L. Gosselin, Assistant Attorney General, Columbus, OH, Marianne Pressman, Ohio Attorney General, Cincinnati, OH, for Defendants.
Opinion
OPINION AND ORDER
GREGORY L. FROST, United States District Judge.
*1 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 for consideration of movant Jerome Henderson’s second amended emergency motion to intervene (Doc. # 104) and motion for a preliminary injunction (Doc. # 106). For the reasons that follow, the Court GRANTS the former and DENIES the latter.
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.
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Cooey v. Taft, Not Reported in F.Supp.2d (2006)
(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.
*2 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.
*3 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.1 The appellate mandate in those proceedings just issued in October 2006, and the filings indicate
2

Cooey v. Taft, Not Reported in F.Supp.2d (2006)
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.
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).2
*4 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
3

Cooey v. Taft, Not Reported in F.Supp.2d (2006)
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.)
*5 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. The Court finds no prejudice or undue burden in the expedited briefing that Defendants were required to endure in connection with this motion to intervene, and the Court finds no undue or needless burden that the original parties might subsequently suffer if Henderson 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 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
4

Cooey v. Taft, Not Reported in F.Supp.2d (2006)
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
*6 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.
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.
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.
*7 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
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Cooey v. Taft, Not Reported in F.Supp.2d (2006)
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.
*8 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
6

Cooey v. Taft, Not Reported in F.Supp.2d (2006)
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”).
*9 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). 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).3 The Clerk shall detach the proffered complaint attached to Doc. # 104 and file it on the docket.
IT IS SO ORDERED.

Footnotes

1

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

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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.

2

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.)

3

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).

8

 
 Cooey v. Taft, Not Reported in F.Supp.2d (2006)
2006 WL 3762133 Only the Westlaw citation is currently available.
United States District Court, S.D. Ohio,
Eastern Division.
Richard COOEY, et al., Plaintiff, v.
Robert TAFT, et al., Defendants.
No. 2:04-CV-1156. | Dec. 21, 2006.
Attorneys and Law Firms
Gregory William Meyers, Kelly Leann Culshaw, Ohio Public Defender’s Office, Columbus, OH, for Plaintiff.
Michael L. Collyer, Assistant Attorney General, Kelley Ann Sweeney, Ohio Attorney General, Cleveland, OH, Heather L. Gosselin, Assistant Attorney General, Columbus, OH, Marianne Pressman, Ohio Attorney General, Cincinnati, OH, for Defendants.
Opinion
OPINION AND ORDER
GREGORY L. FROST, United States District Judge.
*1 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.1
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.
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Cooey v. Taft, Not Reported in F.Supp.2d (2006)
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 Biros’s request for 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.)
*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, 2006.2 (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.)
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.3 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.4
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.
*3 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.
2

Cooey v. Taft, Not Reported in F.Supp.2d (2006)
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.5 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.)
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.
*4 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.
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 Biros’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 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
3

Cooey v. Taft, Not Reported in F.Supp.2d (2006)
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”).
*5 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.6 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).
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.

Footnotes

1

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)).

2

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.”).

3

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.

4

Cooey v. Taft, Not Reported in F.Supp.2d (2006)

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.

4

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 nonbinding 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.

5

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

injection protocols.

6

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.

5

 
 Cooey v. Taft, Not Reported in F.Supp.2d (2007)
2007 WL 582490 Only the Westlaw citation is currently available.
United States District Court, S.D. Ohio,
Eastern Division.
Richard COOEY, et al., Plaintiffs, v.
Robert TAFT, Governor, et al., Defendants.
No. 2:04-cv-1156. | Feb. 20, 2007.
Attorneys and Law Firms
Gregory William Meyers, Kelly Leann Culshaw, Ohio Public Defender’s Office, Columbus, OH, for Plaintiffs.
Michael L. Collyer, Assistant Attorney General, Kelley Ann Sweeney, Ohio Attorney General, Cleveland, OH, Heather L. Gosselin, Assistant Attorney General, Columbus, OH, Marianne Pressman, Ohio Attorney General, Corrections Litigation Section, Cincinnati, OH, for Defendants.
Opinion
OPINION AND ORDER
GREGORY L. FROST, United States District Judge.
*1 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 Nicole Diar’s motion to intervene as a plaintiff-intervenor (Doc. # 154).
Without conceding any issues previously argued in response to other inmates who have moved to intervene in this lawsuit or waiving any arguments with respect to the issue of “ripeness,” Defendants do not oppose Nicole Diar’s intervention in this case (Doc. # 157).
Diar, who was sentenced to death on November 2, 2005, seeks to intervene in this case as of right pursuant to Fed.R.Civ.P. 24(a)(2), and in the alternative, for permissive intervention under Fed.R.Civ.P. 24(b)(2). Because the Court decides, as it has with respect to every other motion to intervene that has been filed in this case, that Diar has demonstrated that permissive intervention is warranted, it is unnecessary for the Court to determine whether Diar has demonstrated that she is entitled to intervention of right under Fed.R.Civ.P. 24(a)(2). See Secretary of Department of Labor v. King, et al., 775 F.2d 666, 668 (6th Cir.1985) (“Since we hold that the District Court did not abuse its discretion in allowing the Bank to intervene under Fed.R.Civ.P. 24(b)(2), we need not consider whether Fed.R.Civ.P. 24(a)(2) gave the Bank the right to intervene.”).
Upon review of Diar’s motion to intervene and accompanying exhibits, and because Defendants do not object, the Court concludes that Diar has demonstrated that permissive intervention is warranted. Rule 24(b)(2) governing permissive intervention 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). First, the Court concludes that Diar’s application is timely. Because this litigation remains in its early stages, intervention at this point will not prejudice the original parties to this litigation. See, e.g., United States v. Tennessee,
1

Cooey v. Taft, Not Reported in F.Supp.2d (2007) 260 F.3d 587, 592 (6th Cir.2001) (quoting Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir.1989)). The Court further concludes that because Diar’s proffered complaint and the main action involve the same method-of-execution challenge, they have questions of law and facts in common. For the foregoing reasons, the Court in its discretion hereby GRANTS Nicole Diar’s motion to intervene as plaintiff-intervenor (Doc. # 154). The Clerk shall detach the proffered complaint and file said pleading on the docket. IT IS SO ORDERED.
2

 
 Cooey v. Taft, Not Reported in F.Supp.2d (2007)
2007 WL 1202718 Only the Westlaw citation is currently available.
United States District Court, S.D. Ohio,
Eastern Division. Richard COOEY, et al., Plaintiff,
v. Robert TAFT, et al., Defendants. No. 2:04-cv-1156. | April 23, 2007.
Attorneys and Law Firms Gregory William Meyers, Kelly Leann Culshaw, Ohio Public Defender’s Office, Columbus, OH, for Plaintiff. Michael L. Collyer, Assistant Attorney General, Kelley Ann Sweeney, Ohio Attorney General, Cleveland, OH, Heather L. Gosselin, Assistant Attorney General, Columbus, OH, Marianne Pressman, Ohio Attorney General, Cincinnati, OH, for Defendants. Opinion
OPINION AND ORDER
GREGORY L. FROST, United States District Judge. *1 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 for consideration of potential intervenor James J. Filiaggi’s motion to intervene (Doc. # 171) and motion for a preliminary injunction (Doc. # 172), Defendants’ memorandum in opposition1 (Doc. # 177), and Filiaggi’s reply memorandum (Doc. # 176). For the following reasons, the Court must deny Filiaggi’s motion to intervene without prejudice and deny the motion for a preliminary injunction as moot.
I. The Prison Litigation Reform Act (“PLRA”) provides in relevant part:
No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.
42 U.S.C. § 1997e(a). It is well settled that under this statute, the proper exhaustion of available administrative remedies, while not jurisdictional, is a mandatory pre-condition to the filing of an action in federal court challenging prison conditions. Woodford v.. Ngo, 126 S.Ct. 2378, 2382-83 (2006).
Thus, this Court has required exhaustion in this and related litigation, dating back to the first pleadings by Richard Cooey and Adremy Dennis. (Doc. # 20 in Case No. 2:04-cv-532.) Other plaintiffs, such as John Hicks, had exhausted or attempted to exhaust their administrative remedies prior to filing in this Court. (Doc. # 26.)
A notable issue arose with Jeffrey Hill. There, the Court had reviewed the Chief Inspector’s disposition of Hill’s
1

Cooey v. Taft, Not Reported in F.Supp.2d (2007)
lethal-injection grievance and had to conclude that there was no administrative grievance process available. Thus, the Court permitted intervention in the absence of exhaustion. (Doc. # 35.) This rationale informed the Court’s decision on the motions to intervene of Johnnie Baston and Arthur Tyler. (Doc. # 54.)
Things had changed by September 20, 2006, when this Court issued an Opinion and Order denying without prejudice Jeffrey Lundgren’s emergency motion to intervene. (Doc. # 73 in Case No. 2:04-cv-1156.) That decision explained that because the Court had before it new evidence that the Chief Inspector was now addressing the merits of method-of-execution grievances, the Court had to conclude that an administrative remedy was now available. Therefore, because Lundgren had failed to exhaust administrative remedies-namely, a direct grievance to the Office of the Chief Inspector pursuant to Ohio Administrative Code § 5120-9-31-he had failed to comply with the PLRA and could not intervene. (Doc. # 73.) On October 5, 2006, this Court then issued an Opinion and Order denying without prejudice Lundgren’s amended emergency motion to intervene, this time because of Lundgren’s failure to properly exhaust completely his administrative remedies. (Doc. # 86.) Following proper exhaustion, Lundgren successfully intervened. (Doc. # 92.)
*2 Thereafter, on October 24, 2006, this Court denied without prejudice a motion to intervene filed by Jerome Henderson, finding that he, too, had failed to exhaust his administrative grievance. (Doc. # 100.) After proper exhaustion, Henderson also successfully intervened. (Doc. # 124.)
Against this backdrop, Filiaggi attempts to intervene, despite the fact that he has never filed a grievance and exhausted his administrative remedies. Filiaggi in fact admits that at the time that he filed his motion to intervene, he had not filed a grievance directly to the Office of the Chief Inspector and had not received a decision by the Chief Inspector disposing of any such grievance. Thus, at the time he filed his emergency motion to intervene, Filiaggi had not properly exhausted his administrative remedies as required by the PLRA.2
Filiaggi attempts to evade his failure to exhaust in several ways. Citing the proceedings surrounding Jeffrey Hill, Filiaggi first argues that this Court has already found that there is no administrative remedy available to exhaust. This argument overlooks, however, this Court’s recognition in subsequent proceedings in this very litigation that post-Hill, the Chief Inspector apparently altered policy and has since considered administrative grievances involving method-of-execution claims. The administrative landscape has changed. Filiaggi’s argument is therefore no longer correct based on the facts before the Court.
Filiaggi next argues that if administrative remedies do indeed exist, he has exhausted them because other parties to the litigation exhausted such a remedy.3 Not surprisingly, he cites no precedent directly supporting this proposition. This Court is aware of no case law following Filiaggi’s excessively broad and fundamentally incorrect reading of the PLRA. There is no textual basis for reading the statute to permit one inmate to evade the exhaustion requirement by bootstrapping another inmate’s actions into his own compliance; the PLRA does not permit exhaustion by proxy. Moreover, it is not material that the end result of any such grievance is likely a denial. Under controlling Sixth Circuit law, the PLRA requires inmates to exhaust their administrative remedies, even where doing so appears futile. See, e.g., Hartsfield v. Vidor, 199 F.3d 305, 308-10 (6th Cir.1999).
The Court also recognizes that Filiaggi attempts to defeat Defendants’ argument by asserting that it is premature. Because exhaustion of administrative remedies is an affirmative defense and not a jurisdictional bar, Filiaggi contends, Defendants can only properly assert exhaustion after a complaint is filed. Moreover, the argument asks this Court to perform a perfunctory act: allow intervention in light of a certain dismissal. The apparent rationale behind the request is that the Court will inevitably stay Filiaggi’s execution date while considering briefing on a subsequent dispositive motion predicated on exhaustion, but Filiaggi’s request again treats a statutory requirement as irrelevant to the intervention analysis.
*3 But the relevance of a mandated dismissal is apparent because it informs a threshold issue in the intervention analysis. In addressing both intervention as of right and permissive intervention, the Court must first determine whether the application to intervene is timely. Federal Rule of Civil Procedure 24(a) requires that the motion to intervene be timely, stating:
Upon timely application, anyone shall be permitted to intervene in an action: ...
(2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
Fed.R.Civ.P. 24(a). Rule 24(b)(2) also includes a timeliness component, providing:
2

Cooey v. Taft, Not Reported in F.Supp.2d (2007)
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 timeliness component requires the Court to 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)). Filiaggi cannot succeed under this inquiry.
Considering the second factor, the Court is cognizant that Filiaggi’s seeking intervention in light of a certain dismissal conveys an intent to delay his execution, not for purposes of receiving consideration of the substantive merits of his claims-because he could not for failure to exhaust-but simply for the sake of delay. There can be no other result from filing a complaint that must be dismissed.
In regard to the third factor, the Court notes Filiaggi’s concession in his reply memorandum:
Filiaggi cannot and does not deny that he either knew about or should have known about the existence of this case well in advance of moving to intervene. He cannot deny that it would have been the wiser practice to have opposed the State’s motion, in the Supreme Court of Ohio, to set an execution date so that he could pursue remedies through this litigation. He cannot deny that it would have been better to have sought intervention at an earlier date.
*4 (Doc. # 176, at 1.) This acknowledgment accurately summarizes why Filiaggi’s motion to intervene is untimely under the third factor the Court must consider.
The foregoing two factors weigh against intervention. The first and fourth factors favor intervention, for the reasons this Court has repeatedly explained throughout the course of this litigation. Given the procedural posture of this stayed litigation, the case is still in its early stages and permitting intervention here would neither unduly delay nor prejudice the adjudication of the rights of the original parties.
Recognizing that the test is not simply an equation in which the Court counts the factors-the Court instead must weigh the factors-the Court finds that the remaining fifth factor also argues against intervention. To permit intervention in light of an assured prompt dismissal would both engage in Pyrrhic inanity and would run counter to the Court’s prior, consistent application of exhaustion in the intervention analysis. The factors point against allowing intervention and defeat Filiaggi’s request that the Court ignore the realities of the facts he brings to this forum. Filiaggi argues that “the issues before this Court do not concern what might have been better; they concern what is to be done.” (Doc. # 176, at 2.) But to use Filiaggi’s own words, “It’s not that simple.” (Doc. # 176, at 2.) Rather, what happened (or did not happen) in the past controls what must be done now.
To be certain, today’s decision no doubts provides fodder for the argument that the law often follows form over substance. But this argument rings hollow given that this litigation has so often been about, or at least should have been about at every level of review, the application of the law in a consistent manner, free from subjectivity or whim and guided only by reasoned adherence to stated objective rules. One such rule is the exhaustion requirement, and another is the timeliness requirement. Filiaggi has failed to satisfy these requirements and has instead presented this Court with a proffered complaint that cannot stand via an untimely motion to intervene. The Court is therefore constrained to deny without prejudice Filiaggi’s motion to intervene. (Doc. # 171.) Absent his presence in this litigation, Filiaggi is not entitled to obtain and this Court is without authority to impose injunctive or other relief staying his scheduled April 24, 2007 execution.
3

Cooey v. Taft, Not Reported in F.Supp.2d (2007)

II.
For the foregoing reasons, the Court DENIES WITHOUT PREJUDICE James Filiaggi’s motion to intervene (Doc. # 171) and DENIES AS MOOT Filiaggi’s related motion for a preliminary injunction or a stay under the All Writs Act (Doc. # 172).
IT IS SO ORDERED.

Footnotes

1

Pursuant to this Court’s scheduling order (Doc. # 173), Defendants had to file their memorandum in opposition by midnight on

April 21, 2007. The Court’s electronic filing system was unavailable due to technical issues, however, which necessitated

Defendants emailing the document to Filiaggi’s counsel and the Court, which also received a faxed copy. The Court noted that

Defendants satisfied the Court’s order, accepted the memorandum as properly filed, and instructed the Clerk to place the document

on the docket.

2

Previously, the Sixth Circuit required a prisoner to plead exhaustion. See, e.g., Brown v. Toombs, 139 F.3d 1102, 1104 (6th

Cir.1998) (“A prisoner should attach to his § 1983 complaint the administrative decision, if it is available, showing the

administrative disposition of his complaint.”); see also Knuckles El v. Toombs, 215 F.3d 640, 642 (6th Cir.2000) (“a prisoner must

plead his claims with specificity and show that they have been exhausted by attaching a copy of the applicable administrative

dispositions to the complaint or, in the absence of written documentation, describe with specificity the administrative proceeding

and its outcome.”). It is important to note that although the Supreme Court has now clarified that prisoners are not required to plead

and demonstrate exhaustion in a complaint, Filiaggi concedes in his briefing that he did not file an administrative grievance. See

Jones v. Bock, 127 S.Ct. 910, 919 (2007) (reversing Sixth Circuit and holding that a prisoner need not plead exhaustion).

3

Filiaggi’s situation is thus distinguishable from Kenneth Biros, whom this Court had found to have fully exhausted his

administrative remedies when the Chief Inspector failed, within thirty days of receiving Biros’s grievance, to respond or to show

good cause, with notice to Biros, for extending the time to respond.

4

 
 CM/ECF LIVE - U.S. District Court:OHSD - Docket Report

https://ecf.ohsd.uscourts.gov/cgi-bin/DktRpt.pl?240120831368243-L_3...

APPEAL, JURY
U.S. District Court Southern District of Ohio (Columbus) CIVIL DOCKET FOR CASE #: 2:04-cv-01156-GLF-MRA

Cooey v. Taft et al Assigned to: Gregory L Frost Referred to: Mark R. Abel Case in other court: Sixth Circuit, 07-03488 Cause: 42:1983 Civil Rights Act Plaintiff Richard Cooey
Intervenor Plaintiff John R Hicks TERMINATED: 01/04/2006

Date Filed: 12/08/2004 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Gregory William Meyers Ohio Public Defender's Office - 2 8 E Long Street 11th Floor Columbus, OH 43215-0587 614-466-5394 Email: greg.meyers@opd.state.oh.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly Leann Culshaw Ohio Public Defender's Office - 2 8 E Long Street 11th Floor Columbus, OH 43215-0587 614-466-5394 Fax: 614-644-0708 Email: Culshawk@opd.state.oh.us ATTORNEY TO BE NOTICED
represented by Marc David Mezibov Mezibov & Jenkins Co., LPA 401 East Court Street Suite 600 Cincinnati, OH 45202 513-723-1600 Fax: 513-723-1620 Email: mmezibov@mezibovjenkins.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christian A Jenkins Mezibov & Jenkins Co., LPA 401 East Court Street

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CM/ECF LIVE - U.S. District Court:OHSD - Docket Report
Intervenor Plaintiff Jeffrey D Hill
Intervenor Plaintiff Johnnie Baston
Intervenor Plaintiff Arthur Tyler
2 of 33

https://ecf.ohsd.uscourts.gov/cgi-bin/DktRpt.pl?240120831368243-L_3...
Suite 600 Cincinnati, OH 45202 513-723-1600 Fax: 513-723-1620 Email: cjenkins@mezibovjenkins.com ATTORNEY TO BE NOTICED
represented by Gary Wayne Crim 943 Manhattan Ave Dayton, OH 45406-5141 937-276-5770 Email: gwcrim@ameritech.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Bodiker Ohio Public Defender's Office - 2 8 E Long Street 11th Floor Columbus, OH 43215-0587 614-466-5394 Email: bodiker@opd.state.oh.us ATTORNEY TO BE NOTICED
Timothy R Payne Ohio Public Defender's Office - 2 8 E Long Street 11th Floor Columbus, OH 43215-0587 614-466-5394 Email: paynet@opd.state.oh.us ATTORNEY TO BE NOTICED
represented by Kyle Edward Timken Ohio Public Defender's Office - 2 8 E Long Street 11th Floor Columbus, OH 43215-0587 614-466-5394 Email: timkenk@opd.state.oh.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Richard M Kerger Kerger & Kerger 33 S Michigan Street
9/10/2007 11:28 AM

CM/ECF LIVE - U.S. District Court:OHSD - Docket Report
Intervenor Plaintiff Jerome Henderson
Intervenor Plaintiff Jeffrey Don Lundgren Intervenor Plaintiff

https://ecf.ohsd.uscourts.gov/cgi-bin/DktRpt.pl?240120831368243-L_3...
Suite 201 Toledo, OH 43602 419-255-5990 Email: rickkerger@kergerkerger.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn L Sandford Ohio Public Defender's Office - 2 8 E Long Street 11th Floor Columbus, OH 43215-0587 614-466-5394 Email: kathryn.sandford@opd.state.oh.us ATTORNEY TO BE NOTICED
represented by Carol Ann Wright 1450 Liberty Center 1001 Liberty Avenue Pittsburgh, PA 15222 412-894-0780 Fax: 412-355-2505 Email: Carol_Wright@fd.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Clark Stebbins 400 South Fifth Street - 2 Suite 202 Columbus, OH 43215 614-228-9058 Email: david@dstebbins.com TERMINATED: 11/09/2006 ATTORNEY TO BE NOTICED
represented by James A Jenkins 2000 Standard Building 1370 Ontario Street Cleveland, OH 44113 216-363-6003 Fax: 216-363-6013 Email: jajenkins49@hotmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Kenneth Biros
Intervenor Plaintiff John Spirko

https://ecf.ohsd.uscourts.gov/cgi-bin/DktRpt.pl?240120831368243-L_3...
represented by Timothy F Sweeney 820 Superior Avenue NW Suite 430 Cleveland, OH 44113-1800 216-241-5003 Fax: 216-241-3138 Email: tim@timsweeneylaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Patrick Parker 4403 St. Clair Avenue Cleveland, OH 44103 216-881-0900 Fax: 216-881-3928 Email: johnpparker@earthlink.net ATTORNEY TO BE NOTICED
represented by David Clark Stebbins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alison B Rousseau Pillsbury Winthrop Shaw Pittman, LLP 2300 N Street NW Washington, DC 20037 Email: alison.rousseau@pillsburylaw.com ATTORNEY TO BE NOTICED
Alvin Dunn Pillsbury Winthrop Shaw Pittman, LLP 2300 N Street NW Washington, DC 20037 202-663-8355 Fax: 202-354-5442 Email: alvin.dunn@pillsburylaw.com ATTORNEY TO BE NOTICED
Ashley McDonald Pillsbury Winthrop Shaw Pittman, LLP 2300 N Street NW Washington, DC 20037 202-663-8732 Email: ashley.mcdonald@pillsburylaw.com ATTORNEY TO BE NOTICED
Thomas C Hill

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Intervenor Plaintiff Nicole Diar
Intervenor Plaintiff Clarence Carter
Intervenor Plaintiff Mark W Wiles
Intervenor Plaintiff Kevin Keith
5 of 33

https://ecf.ohsd.uscourts.gov/cgi-bin/DktRpt.pl?240120831368243-L_3...
Pillsbury Winthrop Shaw Pittman, LLP 2300 N Street NW Washington, DC 20037 202-663-8073 Fax: 202-663-8007 Email: thomas.hill@pillsburylaw.com ATTORNEY TO BE NOTICED
represented by Ruth L Tkacz Ohio Public Defender's Office - 2 8 E Long Street 11th Floor Columbus, OH 43215-0587 614-466-5394 Email: tkaczr@opd.state.oh.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Linda E Prucha Ohio Public Defender's Office - 2 8 E Long Street 11th Floor Columbus, OH 43215-0587 614-466-5394 Fax: 614-466-5394 Email: linda.prucha@opd.state.oh.us ATTORNEY TO BE NOTICED
represented by Mark W Wiles 189-200 Ohio State Penitentiary 878 Coitsville-Hubbard Rd. PO Box 1436 Youngstown, OH 44505 PRO SE
represented by Harry R Reinhart Reinhart Law Office - 1 400 S Fifth Street Suite 202 Columbus, OH 43215-5430 614-228-7771 Email: hreinhart@compuserve.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
9/10/2007 11:28 AM

CM/ECF LIVE - U.S. District Court:OHSD - Docket Report

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Intervenor Plaintiff James J. Filiaggi TERMINATED: 04/23/2007
Intervenor Plaintiff Billy Slagle Intervenor Plaintiff Romell Broom
Intervenor Plaintiff Jason Getsy
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Carol Ann Wright (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey M Gamso Legal Director, ACLU of Ohio 4506 Chester Avenue Cleveland, OH 44103 216-514-1100 Fax: 216-514-0030 Email: jmgamso@acluohio.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Spiros P Cocoves 610 Adams Street Second Floor Toledo, OH 43604 419-241-5506 Fax: 419-242-3442 Email: scocoves@gmail.com ATTORNEY TO BE NOTICED
represented by Kelly Leann Culshaw (See above for address) ATTORNEY TO BE NOTICED
represented by Timothy F Sweeney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
S Adele Shank 3380 Tremont Road 2nd Floor Columbus, OH 43221 614-326-1217 Fax: 614-326-1231 Email: shanklaw@att.net ATTORNEY TO BE NOTICED
represented by David Clark Stebbins (See above for address) LEAD ATTORNEY
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Intervenor Plaintiff Jonathon D. Monroe Intervenor Plaintiff Grady L. Brinkley Intervenor Plaintiff Marvin G. Johnson
Intervenor Plaintiff Daniel A Wilson
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https://ecf.ohsd.uscourts.gov/cgi-bin/DktRpt.pl?240120831368243-L_3...
ATTORNEY TO BE NOTICED
Michael J Benza 4403 St. Clair Avenue Cleveland, OH 44103 216-361-1026 Fax: 216-881-3928 Email: michael_benza@route61.com ATTORNEY TO BE NOTICED
represented by David Clark Stebbins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Timothy F Sweeney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kimberly S Rigby Ohio Public Defender 8 East Long Street 11th Floor Columbus, OH 43215 614-224-2747 Email: rigbyk@opd.state.oh.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Pamela J Prude-Smithers Ohio Public Defender's Office - 2 8 E Long Street 11th Floor Columbus, OH 43215-0587 614-466-5394 Email: Prude-SP@opd.state.oh.us ATTORNEY TO BE NOTICED
represented by David L Doughten 4403 St. Clair Avenue Cleveland, OH 44103-1125 216-361-1112 Email: ddoughten@yahoo.com ATTORNEY TO BE NOTICED
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Intervenor Plaintiff James T. Conway
Intervenor Plaintiff Darryl M Durr
Intervenor Plaintiff Michael R Turner V. Defendant

https://ecf.ohsd.uscourts.gov/cgi-bin/DktRpt.pl?240120831368243-L_3...
represented by Randall Lee Porter Ohio Public Defender Office 8 E Long Street Columbus, OH 43215 614-466-5394 Fax: 614-644-0703 Email: randall.porter@opd.state.oh.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Bodiker (See above for address) ATTORNEY TO BE NOTICED
Kathryn L Sandford (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis Lyle Sipe Buell and Sipe Co. LPA - 2 322 Third Street Marietta, OH 45750 740-373-3219 Fax: 740-373-2892 Email: dennis@buellsipe.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen McGarry PO Box 310 Glorieta, NM 87535 505-757-3989 Fax: 888-470-6313 Email: kate@kmcgarrylaw.com ATTORNEY TO BE NOTICED
represented by David Clark Stebbins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Governor Robert Taft Govenor of the State of Ohio

https://ecf.ohsd.uscourts.gov/cgi-bin/DktRpt.pl?240120831368243-L_3...
represented by Charles L Wille Principal Assistant Attorney General Capital Crimes 30 E Broad Street, 23rd Floor Columbus, OH 43215 614-728-7055 Fax: 614-728-8600 Email: cwille@ag.state.oh.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael L Collyer Assistant Attorney General 615 W Superior Avenue 11th Floor Cleveland, OH 44113 216-787-3030 Fax: 216-787-3480 Email: mcollyer@ag.state.oh.us TERMINATED: 05/15/2007 LEAD ATTORNEY
Brian J Laliberte Ohio Attorney General 30 East Broad Street 17th Floor Columbus, OH 43215 614-728-5470 Fax: 614-466-5087 Email: blaliberte@ag.state.oh.us ATTORNEY TO BE NOTICED
Carol Ann Ellensohn Ohio Attorney General - 2 30 E Broad Street 23rd Floor Columbus, OH 43215-3428 614-728-7055 Email: cellensohn@ag.state.oh.us ATTORNEY TO BE NOTICED
Heather L Gosselin Assistant Attorney General State Office Tower 30 E. Broad St., 26th Floor Columbus, OH 43215-3428 614/728/7055 Email: hgosselin@ag.state.oh.us TERMINATED: 06/13/2007

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Defendant Director Reginald Wilkinson Director Ohio Department of Rehabilitation and Correction

https://ecf.ohsd.uscourts.gov/cgi-bin/DktRpt.pl?240120831368243-L_3...
ATTORNEY TO BE NOTICED
Janet R Hill Arbogast Ohio Attorney General - 2 150 East Gay Street 16 Floor Columbus, OH 43215 614-644-7233 Fax: 614-728-9327 Email: jarbogast@ag.state.oh.us ATTORNEY TO BE NOTICED
Kelley Ann Sweeney Ohio Attorney General - 2 615 W Superior Avenue 11th Floor Cleveland, OH 44113-1899 216-787-3030 Fax: 216-787-3480 Email: ksweeney@ag.state.oh.us TERMINATED: 06/13/2007 ATTORNEY TO BE NOTICED
Marianne Pressman Ohio Attorney General - 2 Corrections Litigation Section 441 Vine Street Suite 1600 Cincinnati, OH 45202-2809 513-852-3497 Email: mpressman@ag.state.oh.us TERMINATED: 06/13/2007 ATTORNEY TO BE NOTICED
represented by Charles L Wille (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael L Collyer (See above for address) TERMINATED: 05/15/2007 LEAD ATTORNEY
Brian J Laliberte (See above for address) ATTORNEY TO BE NOTICED

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Defendant James Haviland Warden Southern Ohio Correctional Facility

https://ecf.ohsd.uscourts.gov/cgi-bin/DktRpt.pl?240120831368243-L_3...
Heather L Gosselin (See above for address) TERMINATED: 06/13/2007 ATTORNEY TO BE NOTICED
Janet R Hill Arbogast (See above for address) ATTORNEY TO BE NOTICED
Kelley Ann Sweeney (See above for address) TERMINATED: 06/13/2007 ATTORNEY TO BE NOTICED
Marianne Pressman (See above for address) TERMINATED: 06/13/2007 ATTORNEY TO BE NOTICED
represented by Charles L Wille (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael L Collyer (See above for address) TERMINATED: 05/15/2007 LEAD ATTORNEY
Brian J Laliberte (See above for address) ATTORNEY TO BE NOTICED
Heather L Gosselin (See above for address) TERMINATED: 06/13/2007 ATTORNEY TO BE NOTICED
Janet R Hill Arbogast (See above for address) ATTORNEY TO BE NOTICED
Kelley Ann Sweeney (See above for address) TERMINATED: 06/13/2007 ATTORNEY TO BE NOTICED
Marianne Pressman

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Defendant Director Terry Collins Ohio Department of Rehabilitation and Correction
Defendant Warden Edwin Voorhies Southern Ohio Correctional Facility
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https://ecf.ohsd.uscourts.gov/cgi-bin/DktRpt.pl?240120831368243-L_3...
(See above for address) TERMINATED: 06/13/2007 ATTORNEY TO BE NOTICED
represented by Charles L Wille (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael L Collyer (See above for address) TERMINATED: 05/15/2007 LEAD ATTORNEY
Brian J Laliberte (See above for address) ATTORNEY TO BE NOTICED
Heather L Gosselin (See above for address) TERMINATED: 06/13/2007 ATTORNEY TO BE NOTICED
Janet R Hill Arbogast (See above for address) ATTORNEY TO BE NOTICED
Marianne Pressman (See above for address) TERMINATED: 06/13/2007 ATTORNEY TO BE NOTICED
represented by Charles L Wille (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael L Collyer (See above for address) TERMINATED: 05/15/2007 LEAD ATTORNEY
Brian J Laliberte (See above for address) ATTORNEY TO BE NOTICED
Heather L Gosselin
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https://ecf.ohsd.uscourts.gov/cgi-bin/DktRpt.pl?240120831368243-L_3...

(See above for address) TERMINATED: 06/13/2007 ATTORNEY TO BE NOTICED
Janet R Hill Arbogast (See above for address) ATTORNEY TO BE NOTICED
Marianne Pressman (See above for address) TERMINATED: 06/13/2007 ATTORNEY TO BE NOTICED

Date Filed 12/08/2004 12/08/2004
12/09/2004
12/13/2004 12/13/2004 12/13/2004 12/17/2004 12/28/2004 01/04/2005
01/05/2005
01/10/2005

#

Docket Text

1 MOTION filed by Plaintiff Richard Cooey for Leave to Proceed in forma pauperis. (dms) (Entered: 12/08/2004)
2 COMPLAINT filed by Plaintiff Richard Cooey against Defendants Robert Taft, Reginald Wilkinson, and James Haviland. (Attachments: # 1 Exhibits to Complaint)(dms ) (Entered: 12/08/2004)
3 ORDER granting 1 Motion for Leave to Proceed in forma pauperis. Plaintiff is required to pay the full amount of the Court's $150 filing fee. It is ORDERED that the US Marshal is to serve each Defendant. Each Defendant is ORDERED to respond to the Complaint within 45 days after being served. Signed by Judge Mark R. Abel on 12/8/04. (dms ) (Entered: 12/09/2004)
4 Summons Issued as to James Haviland. (dms ) (Entered: 12/14/2004)
5 Summons Issued as to Reginald Wilkinson. (dms ) (Entered: 12/14/2004)
6 Summons Issued as to Robert Taft. (dms ) (Entered: 12/14/2004)
Filing fee: $ 13.56, receipt number 200 244563. (dms) (Entered: 12/20/2004)
7 SUMMONS Returned Executed Robert Taft served on 12/15/2004, answer due 1/4/2005. (dms ). (Entered: 12/29/2004)
8 MOTION to Dismiss by Defendants Robert Taft, Reginald Wilkinson, James Haviland. Responses due by 1/28/2005 (Attachments: # 1 Exhibit Cooey's Federal Habeas Petition# 2 Exhibit Dennis v. Taft Order# 3 Exhibit Buffalo News Article)(Collyer, Michael) (Entered: 01/04/2005)
9 ORDER re 8 MOTION to Dismiss filed by Reginald Wilkinson,, James Haviland, & Robert Taft; Non-oral hearing on said motion set for 2/24/2005. Signed by Judge Gregory L Frost on 1/5/05. (sem, ) (Entered: 01/05/2005)
10 SUMMONS Returned Executed Reginald Wilkinson served on 12/15/2004, answer due 1/4/2005. (dms ). (Entered: 01/11/2005)

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01/10/2005 01/10/2005 01/14/2005
01/25/2005 03/09/2005 03/28/2005 03/28/2005 03/28/2005
03/30/2005 04/04/2005 04/04/2005
04/06/2005 04/11/2005 04/12/2005 04/13/2005

11 SUMMONS Returned Executed James Haviland served on 12/20/2004, answer due 1/10/2005. (dms ) . (Entered: 01/11/2005)
Filing fee: $ 8.16, receipt number 200 244810 (dms ) (Entered: 01/11/2005)
12 RESPONSE in Opposition re 8 MOTION to Dismiss filed by Plaintiff Richard Cooey. (Attachments: # 1 Exhibit A - 10/16/04 Opinion & Order# 2 Exhibit B Order Denying Prelim Inj# 3 Exhibit B- Appendix to Order)(Culshaw, Kelly). (Entered: 01/14/2005)
13 REPLY to Response to Motion re 8 MOTION to Dismiss filed by Defendants Robert Taft, Reginald Wilkinson, James Haviland. (Collyer, Michael) (Entered: 01/25/2005)
Filing fee: $ 11.60, receipt number 200 245695. (dms ) (Entered: 03/11/2005)
14 ORDER denying 8 Defendants' Motion to Dismiss . Signed by Judge Gregory L Frost on 3/28/05. (sem, ) (Entered: 03/28/2005)
Minute Entry for proceedings held before Judge Gregory L Frost : Status Conference held on 3/28/2005. (statistical purposes (ksh, ) . (Entered: 03/28/2005)
15 SCHEDULING ORDER: Discovery due by 5/6/2005. Dispositive Motions due by 5/27/2005. Trial to the Court set for 8/1/2005 09:00 AM in Courtroom 4 before Gregory L Frost. Non-oral hearing on dispositive motions set for 6/24/2005. Final Pretrial Conference set for 7/26/2005 12:00 PM in chambers before Gregory L Frost.. Signed by Judge Gregory L Frost on 3/28/05. (sem, ). (Entered: 03/28/2005)
16 MOTION for Certificate of Appealability by Defendants Robert Taft, Reginald Wilkinson, James Haviland. (Sweeney, Kelley) (Entered: 03/30/2005)
17 RESPONSE in Opposition re 16 MOTION for Certificate of Appealability filed by Plaintiff Richard Cooey. (Culshaw, Kelly) (Entered: 04/04/2005)
18 First MOTION for Order to Plaintiff's Motion For Discovery Orders Consistent With This Court's Scheduling Order by Plaintiff Richard Cooey. (Attachments: # 1 Exhibit Plaintiff's First Request For Production Of Documents# 2 Exhibit Plaintiff's First Request To Enter Upon Land And Property For Inspection And Other Purposes)(Meyers, Gregory) (Entered: 04/04/2005)
19 REPLY in Support re 16 MOTION for Certificate of Appealability filed by Defendants Robert Taft, Reginald Wilkinson, James Haviland. (Collyer, Michael) (Entered: 04/06/2005)
20 ANSWER to Complaint with Jury Demand by Defendants Robert Taft, Reginald Wilkinson, James Haviland.(Sweeney, Kelley) (Entered: 04/11/2005)
Filing fee: $ 8.60, receipt number 200 246170 (dms ) (Entered: 04/13/2005)
21 ORDER granting in part and denying in part 16 Defendants' Motion to certify an interlocutory appeal and denying as moot 18 Plaintiff's Motion for Discovery; These proceedings are hereby STAYED pending the outcome of the interlocutory appeal . Signed by Judge Gregory L Frost on 4/13/05. (sem, ) (Entered:

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05/11/2005 06/15/2005 07/14/2005 08/26/2005
09/06/2005 09/07/2005 10/07/2005 11/07/2005 11/23/2005 11/23/2005
11/23/2005
11/23/2005
11/23/2005
11/23/2005
11/25/2005 12/11/2005 12/13/2005

04/13/2005)
Filing fee: $ 10.60, receipt number 200 246562. (dms ) (Entered: 05/12/2005)
Filing fee: $ 7.10, receipt number 247021 (jk) (Entered: 06/16/2005)
Filing fee: $ 23.20, receipt number 247428 (jk) (Entered: 07/14/2005)
22 USCA ORDER - It is ORDERED that the petition for permission to appeal is GRANTED and the matter is hereby transferred to the general docket of the court and assigned docket number 05-4057. Signed by Circuit Judges Suhrheinrich, Siler and Gilman on 08/24/05. (lg) (Entered: 08/26/2005)
Filing fee for appeal USCA case no 05-4057: $ 255, receipt number 248089 (lg) (Entered: 09/06/2005)
Filing fee: $ 22.16, receipt number 248108 (jk) (Entered: 09/07/2005)
Filing fee: $ 17.38, receipt number 248573 (jk) (Entered: 10/07/2005)
Filing fee: $ 23.96, receipt number 200 248926 (jr) (Entered: 11/08/2005)
23 EMERGENCY MOTION to Intervene filed by Movant John R Hicks. (sem, ) (Entered: 11/23/2005)
24 MOTION for Temporary Restraining Order and MOTION for Preliminary Injunction to Stay his Execution filed by Movant John R Hicks. (sem, ) (Entered: 11/23/2005)
25 Amended MOTION to Amend/Correct Plaintiff-Intervenor's Motion for A Temporary Restraining Order and Preliminary Injunction to Stay His Execution Pending Adjudication of 42 USC Sec. 1983 Claims Challenging Defendants' Cruel and Unusual Execution Procedures by Movant John R Hicks. (Mezibov, Marc) (Entered: 11/23/2005)
26 ORDER granting 23 Movant John R. Hicks's Motion to Intervene and denying 24 Motion for Temporary Restraining Order . Signed by Judge Gregory L Frost on 11/23/05. (Attachments: # 1 Exhibit 9/16/04 Decision in Dennis v. Taft) (sem, ) (Entered: 11/23/2005)
28 NOTICE OF APPEAL as to 26 Order on Motion to Intervene, Order on Motion for TRO, Order on Motion to Amend/Correct by Intervenor Plaintiff John R Hicks. Filing fee $ 255. (Mezibov, Marc) (Entered: 11/23/2005)
27 Intervenor COMPLAINT filed by Intervenor Plaintiff John R Hicks against Defendants Robert Taft, Reginald Wilkinson, James Haviland.(sem, ) (Entered: 11/28/2005)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 27 Notice of Appeal (jr) (Entered: 11/25/2005)
29 Emergency MOTION to Intervene as a Plaintiff. (Attachments: # 1 Exhibit Claims being litigated)(Crim, Gary) (Entered: 12/11/2005)
30 ORDER re 29 Emergency MOTION to Intervene as a Plaintiff filed by Jeffrey D Hill; Defendants' shall file any memorandum in opposition by 12/23/05; Non-oral hearing on said motion set for 12/27/2005. Signed by Judge Gregory L Frost on

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12/16/2005 12/16/2005 12/23/2005 01/04/2006 01/09/2006 01/09/2006 04/14/2006 04/18/2006
04/21/2006
04/24/2006 04/25/2006 04/25/2006

12/13/05. (sem, ) (Entered: 12/13/2005)
31 USCA INFORMATION COPY re 28 Notice of Appeal: The request for a stay of execution is DENIED. (jr) (Entered: 12/19/2005)
32 USCA JUDGMENT as to 28 Notice of Appeal filed by John R Hicks, it is ORDERED that the request for a stay of execution is DENIED. (jr) (Entered: 12/19/2005)
33 RESPONSE in Opposition re 29 Emergency MOTION to Intervene as a Plaintiff filed by Defendants Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 Exhibit unreported case# 2 Exhibit unreported case# 3 Exhibit unreported case)(Sweeney, Kelley) (Entered: 12/23/2005)
34 ORDER dismissing Intervenor Plaintiff John R. Hicks as a party to this litigation. Signed by Judge Gregory L Frost on 1/4/06. (sem, ) (Entered: 01/04/2006)
35 ORDER granting 29 Jeffrey D. Hill's Emergency Motion to Intervene; The Clerk shall detach the proferred complaint and file said pleading . Signed by Judge Gregory L Frost on 1/29/06. (sem, ) (Entered: 01/09/2006)
36 Intervenor COMPLAINT filed by Intervenor Plaintiff Jeffrey D Hill against Defendants Robert Taft, Reginald Wilkinson & James Haviland.(sem, ) (Entered: 01/09/2006)
37 Emergency MOTION for Preliminary Injunction by Intervenor Plaintiff Jeffrey D Hill. (Attachments: # 1 Appendix Unreported decision, Brown v. Beck)(Crim, Gary) (Entered: 04/14/2006)
38 ORDER re 37 Emergency MOTION for Preliminary Injunction filed by Jeffrey D Hill; Defendants shall have until 4/21/06 to any memorandum in opposition to said motion; Plaintiff Hill shall have until 4/26/06 to file any reply; An Informal Preliminary Conference is set for 4/28/2006 09:00 AM in teleconference before Gregory L Frost (Plaintiff Hill's counsel shall initiate the call). Signed by Judge Gregory L Frost on 4/18/06. (sem1, ) (Entered: 04/18/2006)
39 RESPONSE in Opposition re 37 Emergency MOTION for Preliminary Injunction filed by Defendants Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 Order Denying Dennis Injunction# 2 Order Re Hicks Intervention and Injunction# 3 Morales v. Hickman# 4 Brown v. Beck# 5 Affidavit of Dr. Dershwitz# 6 Affidavit of Dr. Rosow)(Collyer, Michael) (Entered: 04/21/2006)
40 MOTION to Participate in Preliminary Conference re 38 Order, Set Hearings,, by Plaintiff Richard Cooey. (Culshaw, Kelly) (Entered: 04/24/2006)
41 ORDER granting 40 Plaintiff Cooey's Motion to Participate in the 4/28/06 Telephone Status Conference . Signed by Judge Gregory L Frost on 4/25/06. (sem, ) (Entered: 04/25/2006)
42 REPLY in Support re 37 Emergency MOTION for Preliminary Injunction filed by Intervenor Plaintiff Jeffrey D Hill. (Attachments: # 1 Appendix Docket from Distirct Court, Western District of Missouri# 2 Appendix Decision of Eigth Circuit in Government Appeal# 3 Appendix Docket from Eigjth Circuit, Plaintiff's Appeal)(Crim, Gary) (Entered: 04/25/2006)

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04/28/2006 04/28/2006
04/28/2006 04/28/2006
05/26/2006 05/26/2006 05/30/2006 05/30/2006
06/02/2006 06/02/2006 06/08/2006 06/09/2006 06/16/2006

Minute Entry for proceedings held before Judge Gregory L Frost : Status Conference held on 4/28/2006. (statistical purposes only) (ksh, ) (Entered: 04/28/2006)
43 NOTICE by Defendant Robert Taft re 39 Response in Opposition to Motion, Supplemental Authority (Attachments: # 1 Fourth Circuit Decision Affirming Dismissal of Case and Denial of Stay in Vinson v. Johnson 4-25-06# 2 Supreme Court Denial of Stay in Vinson v. Johnson 4-27-06)(Collyer, Michael) (Entered: 04/28/2006)
44 Supplemental Memorandum Supporting re 37 Emergency MOTION for Preliminary Injunction Notice of Additional Authority filed by Intervenor Plaintiffs Jeffrey D Hill, Jeffrey D Hill. (Attachments: # 1 Supplement Docket from Distirct Court, Eastern District of Virginia)(Crim, Gary) (Entered: 04/28/2006)
45 ORDER granting 37 Plaintiff Hill's Motion for an Emergency Preliminary Injunction; 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 . Signed by Judge Gregory L Frost on 4/28/06. (sem, ) (Entered: 04/28/2006)
46 MOTION to Intervene filed by Johnnie Baston. (Attachments: # 1 Exhibit Proposed Complaint)(Timken, Kyle) (Entered: 05/26/2006)
47 Emergency MOTION to Intervene filed by Arthur Tyler. (Kerger, Richard) (Entered: 05/26/2006)
48 MOTION to Intervene (Corrected) by Intervenor Plaintiff Arthur Tyler. (Kerger, Richard) (Entered: 05/30/2006)
49 ORDER re 46 MOTION to Intervene filed by Johnnie Baston and 48 MOTION to Intervene (Corrected) filed by Arthur Tyler; Defendants shall file any memoranda in opposition by 6/5/06; Movants Baston and Tyler shall file any reply memoranda by 6/9/06; Non-oral hearing on said motions set for 6/12/2006. Signed by Judge Gregory L Frost on 5/30/06. (sem, ) (Entered: 05/30/2006)
50 RESPONSE in Opposition re 46 MOTION to Intervene by Johnnie Baston filed by Defendants Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 Santos v. Camacho)(Collyer, Michael) (Entered: 06/02/2006)
51 RESPONSE in Opposition re 48 MOTION to Intervene (Corrected) by Arthur Tyler filed by Defendants Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 Santos v. Camacho)(Collyer, Michael) (Entered: 06/02/2006)
52 REPLY to Response to Motion re 48 MOTION to Intervene (Corrected) filed by Intervenor Plaintiff Arthur Tyler. (Kerger, Richard) (Entered: 06/08/2006)
53 REPLY to Response to Motion re 46 MOTION to Intervene filed by Intervenor Plaintiff Johnnie Baston. (Prude-Smithers, Pamela) (Entered: 06/09/2006)
54 ORDER granting 46 Baston's Motion to Intervene and granting 48 Tyler's Motion to Intervene . Signed by Judge Gregory L Frost on 6/16/06. (sem, ) (Entered: 06/16/2006)

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06/16/2006 06/16/2006 06/19/2006 07/31/2006 08/08/2006 08/21/2006 08/22/2006 08/28/2006 08/31/2006
09/01/2006 09/01/2006 09/05/2006 09/05/2006 09/08/2006

55 Intervenor COMPLAINT filed by Intervenor Plaintiff Johnnie Baston against Defendants Robert Taft, Reginald Wilkinson, James Haviland.(sem, ) (Entered: 06/16/2006)
56 Intervenor COMPLAINT filed by Intervenor Plaintiff Arthur Tyler against Defendants Robert Taft, Reginald Wilkinson, James Haviland.(sem, ) (Entered: 06/16/2006)
57 NOTICE of Appearance by Kathryn L Sandford for Intervenor Plaintiff Arthur Tyler (Sandford, Kathryn) (Entered: 06/19/2006)
58 NOTICE of Appearance by Heather L Gosselin Defendants Robert Taft, Reginald Wilkinson, James Haviland (Gosselin, Heather) (Entered: 07/31/2006)
59 NOTICE of Appearance by Heather L Gosselin of Defendants Robert Taft, Reginald Wilkinson, James Haviland (Gosselin, Heather) (Entered: 08/08/2006)
60 MOTION to Intervene by Intervenor Plaintiff Jerome Henderson. (Attachments: # 1 Exhibit A - B)(srj, ) (Entered: 08/21/2006)
61 ORDER re 60 MOTION to Intervene filed by Jerome Henderson; Non-oral hearing on said motion set for 10/13/2006. Signed by Judge Gregory L Frost on 8/22/06. (sem1, ) (Entered: 08/22/2006)
62 MOTION to Supplement the Pleadings by Intervenor Plaintiff Jerome Henderson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(jr) (Entered: 08/29/2006)
63 AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF filed by Intervenor Plaintiff Jerome Henderson against Terry Collins, Edwin Voorhies, Defendant Robert Taft. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(jr) (Entered: 09/01/2006)
64 MOTION for Leave to Appear pro hac vice for attorney James A. Jenkins by Intervenor Plaintiff Jeffrey Don Lundgren. Filing fee $ 50. (srj, ) (Entered: 09/01/2006)
65 EMERGENCY MOTION to Intervene by Intervenor Plaintiff Jeffrey Don Lundgren. (Attachments: # 1 Complaint for Injunctive and Declaratory Relief)(srj, ). (Entered: 09/01/2006)
66 NOTICE of Hearing: Telephone Conference set for 9/8/2006 11:00 AM before Gregory L Frost (the Court will initiate the call). (sem1, ) (Entered: 09/05/2006)
67 ORDER granting 64 Motion for Leave for James A. Jenkins to Appear pro hac vice on behalf of Jeffrey Don Lundgren. Signed by Judge Mark R. Abel on 9/5/06. (jr) (Entered: 09/05/2006)
68 RESPONSE in Opposition re 60 MOTION to Intervene by Jerome Henderson filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 Exhibit Chief Inspector Decision re Baston# 2 Exhibit Brown v. Beck# 3 Johnston v. Crawford# 4 Exhibit Doc. 35 Order Granting Hill Intervention# 5 Exhibit Order Denying Motion to Dismiss)(Collyer, Michael) (Entered: 09/08/2006)

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09/08/2006
09/08/2006 09/08/2006 09/14/2006 09/20/2006 09/20/2006 09/20/2006 09/25/2006 09/25/2006 09/27/2006
09/27/2006 10/02/2006
10/03/2006 10/04/2006

69 RESPONSE in Opposition re 65 MOTION to Intervene by Jeffrey Lundgren filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 Exhibit Chief Inspector's Decision re Baston# 2 Exhibit Doc. 35 - Order Granting Hill Intervention)(Collyer, Michael) (Entered: 09/08/2006)
70 SCHEDULING ORDER Non oral hearing on Motion to Intervene set for 9/15/2006 08:00 AM . Signed by Judge Gregory L Frost on 9/8/06. (ksh, ) (Entered: 09/08/2006)
Minute Entry for proceedings held before Judge Gregory L Frost : Status Conference held on 9/8/2006. (statistical purposes only) (ksh, ) (Entered: 09/08/2006)
71 REPLY to Response to Motion re 65 MOTION to Intervene filed by Intervenor Plaintiff Jeffrey Don Lundgren. (jr) (Entered: 09/15/2006)
72 NOTICE of Appearance by David Clark Stebbins for Intervenor Plaintiff Jerome Henderson (Stebbins, David) (Entered: 09/20/2006)
73 ORDER denying without prejudice the 65 Emergency Motion to Intervene filed Jeffrey Lundgren . Signed by Judge Gregory L Frost on 9/20/06. (sem1, ) (Entered: 09/20/2006)
74 Certificate of Good Standing filed by James Allen Jenkins, per doc 67 Order on Motion for Leave to Appear Pro Hac Vice. (kch) (Entered: 09/20/2006)
75 MOTION to Appoint Counsel by Intervenor Plaintiff Jerome Henderson. (Attachments: # 1 Exhibit I)(jr) (Entered: 09/26/2006)
76 REPLY to Response to Motion re 60 MOTION to Intervene filed by Intervenor Plaintiff Jerome Henderson. (Attachments: # 1 Exhibit D, # 2 Exhibit E, # 3 Exhibit F, # 4 Exhibit G, # 5 Exhibit H)(jr) (Entered: 09/26/2006)
77 ORDER re 75 MOTION to Appoint Counsel filed by Jerome Henderson; The Court DIRECTS Henderson, within 15 days of the date of this order, to notify this Court whether he is willing to allow Mr. Stebbins to represent him in this matter . Signed by Judge Gregory L Frost on 9/27/06. (sem1, ) (Entered: 09/27/2006)
78 MOTION to supplement the pleadings by Intervenor Plaintiff Jerome Henderson. (Attachments: # 1 Exhibit H # 2 Exhibit I # 3 Exhibit J)(sr) (Entered: 09/28/2006)
79 MOTION in Opposition to Entry of Appearance of Counsel David C. Stebbins of Columbus, Ohio by Intervenor Plaintiff Jerome Henderson. (Attachments: # 1 Exhibit K, # 2 Exhibit L, # 3 Exhibit M, # 4 Exhibit N, # 5 Exhibit O)(jr) (Entered: 10/03/2006)
80 Emergency MOTION for Preliminary Injunction to Stay Execution by Intervenor Plaintiff Jeffrey Don Lundgren. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit)(Jenkins, James) (Entered: 10/03/2006)
81 MOTION to Amend/Correct Emergency Motion to Intervene by Intervenor Plaintiff Jeffrey Don Lundgren. (Attachments: # 1 # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit # 7 Exhibit)(Jenkins, James) (Entered: 10/04/2006)

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10/04/2006 10/05/2006 10/05/2006
10/05/2006 10/05/2006 10/05/2006 10/10/2006 10/10/2006 10/11/2006 10/11/2006
10/13/2006 10/17/2006

82 Emergency MOTION for Preliminary Injunction to Stay Execution by Intervenor Plaintiff Jeffrey Don Lundgren. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit)(Jenkins, James) (Entered: 10/04/2006)
Minute Entry for proceedings held before Judge Gregory L Frost : Telephone Conference held on 10/5/2006 (docketed for statistical purposes only). (sem1, ) (Entered: 10/05/2006)
83 ORDER memorializing the 10/5/06 Status Conference; Lundgren's New Motion to Intervene and his New Motion for Injunctive Relief to Stay shall be filed by 10/5/06; Defendants' Memorandum in Opposition to said motions shall be filed by 10/11/06; Lundgren's Reply in Support of said motions shall be filed by 10/13/06. Signed by Judge Gregory L Frost on 10/5/06. (sem1, ) (Entered: 10/05/2006)
84 Emergency Motion for a Preliminary Injunction to Stay Execution by Intervenor Plaintiff Jeffrey Don Lundgren. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit # 7 Exhibit)(Jenkins, James) (Entered: 10/05/2006)
85 Second MOTION to Amend/Correct Emergency Motion to Intervene by Intervenor Plaintiff Jeffrey Don Lundgren. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit # 7 Exhibit # 8)(Jenkins, James) (Entered: 10/05/2006)
86 ORDER denying as moot 80 Emergency Motion for Preliminary Injunction, denying without prejudice 81 Emergency Motion to Intervene and denying without prejudice 82 Emergency Motion for Preliminary Injunction . Signed by Judge Gregory L Frost on 10/5/06. (sem1, ) (Entered: 10/05/2006)
87 NOTICE by Intervenor Plaintiff Jerome Henderson re 77 Order. (jr) (Entered: 10/11/2006)
88 MOTION in Request that Administrative Remedies Be Deemed Exhausted When Prison Officials Fail to Respond by Intervenor Plaintiff Jerome Henderson. (jr) (Entered: 10/11/2006)
89 RESPONSE in Opposition re 85 Second MOTION to Amend/Correct Emergency Motion to Intervene by Jeffrey Lundgren filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 Unreported Case)(Collyer, Michael) (Entered: 10/11/2006)
90 RESPONSE in Opposition re 84 MOTION to Amend/Correct Emergency Motion for a Preliminary Injunction to Stay Execution of Jeffrey Lundgren filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 Hill v. McDonough# 2 Order 4/28/06# 3 Order 9/16/04# 4 Order 11/23/05# 5 Brown v. Beck# 6 Dershwitz Affidavit# 7 Rosow Affidavit)(Collyer, Michael) (Entered: 10/11/2006)
91 REPLY to Defendants' Response to their 85 Emergency Motion to Intervene filed by Intervenor Plaintiff Jeffrey Don Lundgren. (Jenkins, James) (Entered: 10/13/2006)
92 ORDER granting 84 Lundgren's Amended Emergency Motion for a Preliminary Injunction and granting 85 Lundgren's Amended Emergency Motion to Intervene.

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10/17/2006 10/18/2006 10/18/2006
10/18/2006 10/19/2006 10/20/2006 10/23/2006 10/24/2006
10/24/2006 10/24/2006

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. Signed by Judge Gregory L Frost on 10/17/06. (Attachments: # 1 copy of 4/28/06 Order) (sem1, ) (Entered: 10/17/2006)
93 Intervenor COMPLAINT, per this Court's 10/17/06 Order, filed by Intervenor Plaintiff Jeffrey Don Lundgren, Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland.(sem1, ) (Entered: 10/18/2006)
94 NOTICE OF APPEAL as to 92 10/17/06 Opinion and Order filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. Filing fee $ 455. (Attachments: # 1 Opinion and Order# 2 Attachment to Opinion and Order)(Collyer, Michael) (Entered: 10/18/2006)
95 MOTION to Intervene in this Action as Plaintiff-Intervenor filed by Kenneth Biros. (Attachments: # 1 Exhibit A: Proposed Complaint# 2 Exhibit A-1: Grievance of 9/10/06# 3 Exhibit A-2: Grievance of 9/12/06# 4 Exhibit A-3: Letter to Director Collins of 09/10/06# 5 Exhibit A-4: Letter from Chief Inspector of 09/18/06# 6 Exhibit A-5: Letter from Chief Inspector of 10/12/06# 7 Exhibit A-6: DRC Execution Protocol effective 7/10/06)(Sweeney, Timothy) (Entered: 10/18/2006)
Filing fee: $ 455, receipt number 253486 (notice of appeal 94) (jr) (Entered: 10/19/2006)
96 NOTICE re Representation by Intervenor Plaintiff Jerome Henderson (jr) (Entered: 10/20/2006)
97 ORDER re 95 MOTION to Intervene in this Action as Plaintiff-Intervenor filed by Kenneth Biros; Non-oral hearing on said motion set for 12/6/2006. Signed by Judge Gregory L Frost on 10/20/06. (sem1, ) (Entered: 10/20/2006)
98 NOTICE of Appearance by Carol Ann Wright for Intervenor Plaintiff Jerome Henderson (Wright, Carol) (Entered: 10/23/2006)
99 ORDER granting 75 Movant Henderson's Motion to Appoint Counsel and the Court hereby appoints Carol Ann Wright. The Court denies as moot 79 Henderson's Motion in Opposition to the entry of appearance by David C. Stebbins . Signed by Judge Gregory L Frost on 10/24/06. (sem1, ) (Entered: 10/24/2006)
100 ORDER denying without prejudice 60 Movant Henderson's Emergency Motion to Intervene. The Court denies as moot all of Henderson's related Motions 62 78 88 . Signed by Judge Gregory L Frost on 10/24/06. (Attachments: # 1 9/20/06 Opinion and Order # 2 10/5/06 Opinion and Order) (sem1, ) (Entered: 10/24/2006)
101 MOTION to Expedite This Court's Ruling on Kenneth Biros's Pending Motion to Intervene in This Action, With Notice that the State of Ohio Has Today Moved in the Ohio Supreme Court to Set an Execution Date for Kenneth Biros by Intervenor Plaintiff Kenneth Biros. (Attachments: # 1 Exhibit A: State's Motion to Set Execution Date# 2 Exhibit B: Chief Inspector Denial dated 09/27/06)(Sweeney, Timothy) (Entered: 10/24/2006)

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10/24/2006 10/24/2006 10/25/2006
10/25/2006 10/25/2006 10/25/2006 10/26/2006 10/26/2006 10/27/2006
10/27/2006 10/27/2006 10/30/2006
11/01/2006

102 ORDER of USCA as to 94 Notice of Appeal, filed by Terry Collins, Reginald Wilkinson, James Haviland, Robert Taft, Edwin Voorhies. (jr) (Entered: 10/25/2006)
123 ORDER of USCA granting the Defendants' Motion to Vacate the Order of the District Court allowing Plaintiff Lundgren to intevene as well as granting a preliminary injunction (sem1, ) (Entered: 11/09/2006)
103 ORDER granting 101 Movant Biros's Motion to Expedite Ruling on his pending Motion to Intervene; Defendants shall file any memorandum in opposition to said Motion by 10/30/06; Movant Biros shall file any reply by 11/3/06; The Court resets the Motion to Intervene for a 11/8/06 non-oral hearing. Signed by Judge Gregory L Frost on 10/25/06. (sem1, ) (Entered: 10/25/2006)
Set Deadlines/Hearings: Non-oral hearing on Movant Biros's Motion to Intervene is reset for 11/8/2006. (sem1, ) (Entered: 10/25/2006)
104 Second MOTION to Intervene by Intervenor Plaintiff Jerome Henderson. (Attachments: # 1 Proposed Complaint# 2 Grievance# 3 Grievance# 4 Letter# 5 Letter# 6 DRC Execution Protocol)(Wright, Carol) (Entered: 10/25/2006)
107 ORDER of USCA as to 94 Notice of Appeal, filed by Terry Collins, Reginald Wilkinson, James Haviland, Robert Taft, Edwin Voorhies. (jr1) (Entered: 10/26/2006)
105 MOTION to Expedite Ruling on Second Emergency Motion to Intervene by Intervenor Plaintiff Jerome Henderson. (Wright, Carol) (Entered: 10/26/2006)
106 MOTION for Preliminary Injunction to Stay Execution by Intervenor Plaintiff Jerome Henderson. (Attachments: # 1 Exhibit A)(Wright, Carol) (Entered: 10/26/2006)
108 ORDER granting 105 Movant Henderson's Motion to Expedite Ruling on his pending Motion to Intervene; Defendants shall file any memoranda in opposition to said motion by 11/1/06; Henderson shall file any reply memoranda by 11/6/06; The Court sets a non-oral hearing on the pending motions for 11/8/06 . Signed by Judge Gregory L Frost on 10/27/06. (sem1, ) (Entered: 10/27/2006)
109 MOTION Supplement re 104 Second MOTION to Intervene by Intervenor Plaintiff Jerome Henderson. (Attachments: # 1 Exhibit A)(Wright, Carol) (Entered: 10/27/2006)
Minute Entry for proceedings held before Judge Gregory L Frost : Telephone Conference held on 10/27/2006 (docketed for statistical purposes only). (sem1, ) (Entered: 10/27/2006)
110 RESPONSE in Opposition re 95 MOTION to Intervene in this Action as Plaintiff-Intervenor filed by Kenneth Biros filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 Brown v Beck# 2 Johnston v Crawford# 3 Conn v Wilkinson)(Collyer, Michael) (Entered: 10/30/2006)
111 RESPONSE in Opposition re 104 Henderson's Second MOTION to Intervene filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald

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11/01/2006 11/02/2006 11/03/2006
11/03/2006 11/06/2006 11/06/2006 11/06/2006 11/07/2006

Wilkinson, James Haviland. (Attachments: # 1 unreported case# 2 unreported case# 3 unreported case# 4 unreported case)(Collyer, Michael) (Entered: 11/01/2006)
112 RESPONSE in Opposition re 106 MOTION for Preliminary Injunction to Stay Execution for Henderson filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 unreported case# 2 unreported case)(Collyer, Michael) (Entered: 11/01/2006)
113 NOTICE by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland re 110 Response in Opposition to Motion, of Chief Inspector's Biros Decision (Attachments: # 1 Chief Inspector's Decision)(Collyer, Michael) (Entered: 11/02/2006)
114 Supplemental Memorandum Supporting re 95 MOTION to Intervene in this Action as Plaintiff-Intervenor filed by Kenneth Biros and (1) INCLUDING IN THE RECORD THE CHIEF INSPECTOR'S FORMAL WRITTEN DENIAL OF BIROS'S GRIEVANCE; AND (2) SUBMITTING WITH HIS MOTION TO INTERVENE A REVISED PROFFERED INTERVENOR COMPLAINT (EXHIBIT A HERETO AND ITS EXHIBITS A-1 TO A-8) REFLECTING THE FORMAL DENIAL OF HIS GRIEVANCE by Intervenor Plaintiff Kenneth Biros. (Attachments: # 1 Exhibit A: Proffered Intervenor Complaint# 2 Exhibit A-1: Grievance# 3 Exhibit A-2: Grievance# 4 Exhibit A-3: Biros letter to T. Collins dated 09/10/06# 5 Exhibit A-4: Chief Inspector letter to Biros of 09/18/06# 6 Exhibit A-5: Chief Inspector letter to Biros of 10/12/06# 7 Exhibit A-6: Biros letter to Chief Inspector dated 10/18/06# 8 Exhibit A-7: Chief Inspector's decision of 10/30/06 denying Biros's grievance# 9 Exhibit A-8: DRC Execution Protocol# 10 Exhibit B: Chief Inspector's decision of 10/30/06 denying Biros's grievance)(Sweeney, Timothy) (Entered: 11/03/2006)
115 REPLY to Response to Motion re 95 MOTION to Intervene in this Action as Plaintiff-Intervenor filed by Kenneth Biros filed by Intervenor Plaintiff Kenneth Biros. (Attachments: # 1 Exhibit 1: Order of E.D. Mo. dated 06/22/05# 2 Exhibit 2: Hall's Motion to Intervene# 3 Exhibit 3: French's Motion to Intervene# 4 Exhibit 4: Order of E.D.N.C. dated 04/21/06)(Sweeney, Timothy) (Entered: 11/03/2006)
116 REPLY to Response to Motion re 106 MOTION for Preliminary Injunction to Stay Execution filed by Intervenor Plaintiff Jerome Henderson. (Attachments: # 1 Exhibit A-Motion to Set Date# 2 Exhibit B-Memo In Opposition# 3 Exhibit C-Sixth Circuit Order# 4 Exhibit D-Execution Order# 5 Exhibit E-Henderson v. Collins)(Wright, Carol) (Entered: 11/06/2006)
117 REPLY to Response to Motion re 104 Second MOTION to Intervene filed by Intervenor Plaintiff Jerome Henderson. (Attachments: # 1 Exhibit A-Judge Spiegel Order)(Wright, Carol) (Entered: 11/06/2006)
121 EMERGENCY MOTION for Preliminary Injunction by Intervenor Plaintiff Jerome Henderson. (jr) (Entered: 11/07/2006)
118 MOTION to Withdraw as Attorney by Intervenor Plaintiff Jerome Henderson. (Stebbins, David) (Entered: 11/07/2006)

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11/07/2006 11/07/2006 11/08/2006
11/09/2006
11/09/2006 11/09/2006 11/09/2006 11/15/2006 11/15/2006 11/20/2006 11/20/2006 11/20/2006 11/20/2006

119 MOTION to Intervene. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13 # 14)(Stebbins, David) (Entered: 11/07/2006)
120 MOTION for Preliminary Injunction by Intervenor Plaintiff John Spirko. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11)(Stebbins, David) (Entered: 11/07/2006)
122 ORDER re 119 MOTION to Intervene filed by John Spirko and 120 MOTION for Preliminary Injunction filed by John Spirko; Defendants' shall file any memoranda in opposition by 11/15/06; Movant Spirko shall file any reply memoranda by 11/20/06; Non-oral hearing on the Motion to Intervene is set for 11/21/2006. Signed by Judge Gregory L Frost on 11/8/06. (sem1, ) (Entered: 11/08/2006)
124 ORDER granting 104 Henderson's Motion to Intervene, denying 106 Motion for Preliminary Injunction, granting 109 Motion to Supplement, granting 118 Motion to Withdraw as Attorney by David Stebbins and striking 121 Henderson's Pro Se Motion for Preliminary Injunction . Signed by Judge Gregory L Frost on 11/9/06. (Attachments: # 1 4/28/06 Opinion and Order# 2 10/17/06 Opinion and Order) (sem1, ) (Entered: 11/09/2006)
125 Intervenor COMPLAINT filed (per the Court's 11/9/06 Order) by Intervenor Plaintiff Jerome Henderson against Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland.(sem1, ) (Entered: 11/09/2006)
126 ORDER granting 95 Biros's Motion to Intervene in this action . Signed by Judge Gregory L Frost on 11/9/06. (sem1, ) (Entered: 11/09/2006)
127 Intervenor COMPLAINT filed by Intervenor Plaintiff Kenneth Biros against Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland.(sem1, ) (Entered: 11/09/2006)
128 RESPONSE in Opposition re 119 MOTION to Intervene by John G. Spirko, Jr. filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 Johnston v. Crawford)(Collyer, Michael) (Entered: 11/15/2006)
129 RESPONSE in Opposition re 120 MOTION for Preliminary Injunction by John G. Spirko, Jr. filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 # 2)(Collyer, Michael) (Entered: 11/15/2006)
130 REPLY to Response to Motion re 119 MOTION to Intervene filed by Intervenor Plaintiff John Spirko. (Stebbins, David) (Entered: 11/20/2006)
131 REPLY to Response to Motion re 120 MOTION for Preliminary Injunction filed by Intervenor Plaintiff John Spirko. (Attachments: # 1 # 2 # 3 # 4 # 5)(Stebbins, David) (Entered: 11/20/2006)
132 First MOTION for Limited Admission Thomas Hill by Intervenor Plaintiff John Spirko. (Attachments: # 1)(Stebbins, David) (Entered: 11/20/2006)
133 Second MOTION for Limited Admission Alvin Dunn by Intervenor Plaintiff John Spirko. (Attachments: # 1)(Stebbins, David) (Entered: 11/20/2006)

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11/20/2006 11/20/2006 11/21/2006
11/21/2006 11/21/2006 11/21/2006 11/21/2006 11/22/2006
11/22/2006 11/26/2006 11/27/2006 11/28/2006
11/29/2006 12/04/2006 12/05/2006 12/05/2006

134 Third MOTION for Limited Admission Allison Rousseau by Intervenor Plaintiff John Spirko. (Attachments: # 1)(Stebbins, David) (Entered: 11/20/2006)
135 Fourth MOTION for Limited Admission Ashley McDonald by Intervenor Plaintiff John Spirko. (Attachments: # 1)(Stebbins, David) (Entered: 11/20/2006)
136 ORDER granting 132, 133, 134, & 135 Motions for Admission of Thomas C. Hill, Alvin Dunn, Alison B. Rousseau, and Ashley McDonald pro hac vice to appear as counsel for Plaintiff/Intervenor John G. Spirko. Signed by Judge Mark R. Abel on 11/21/06. (jr) (Entered: 11/21/2006)
Filing fee: $ 50, receipt number 253931 (phv for Hill) (jr) (Entered: 11/22/2006)
Filing fee: $ 50, receipt number 253930 (phv for Rousseau) (jr) (Entered: 11/22/2006)
Filing fee: $ 50, receipt number 253929 (phv for McDonald) (jr) (Entered: 11/22/2006)
Filing fee: $ 50, receipt number 253928 (phv for Dunn) (jr) (Entered: 11/22/2006)
137 ORDER granting 119 Spirko's Motion to Intervene and denying 120 Spirko's Motion for Preliminary Injunction . Signed by Judge Gregory L Frost on 11/22/06. (Attachments: # (1) Hill Order# 2 Lundgren Order) (sem1, ) (Entered: 11/22/2006)
138 Intervenor COMPLAINT filed by Intervenor Plaintiff John Spirko against Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland.(sem1, ) (Entered: 11/22/2006)
139 MOTION for Leave to Proceed in forma pauperis by Intervenor Plaintiff Jerome Henderson. (Attachments: # 1 Affidavit)(Wright, Carol) (Entered: 11/26/2006)
140 ORDER granting 139 Plaintiff Intervenor Henderson's Motion for Leave to Proceed in forma pauperis on appeal. Signed by Judge Gregory L Frost on 11/27/06. (sem1, ) (Entered: 11/27/2006)
141 NOTICE OF APPEAL as to 124 Order on Motion to Intervene, Order on Motion for Preliminary Injunction, Order on Motion for Miscellaneous Relief, Order on Motion to Withdraw as Attorney, by Intervenor Plaintiff Jerome Henderson. (Wright, Carol) (Entered: 11/28/2006)
USCA Case Number 06-4527 for 141 Notice of Appeal filed by Jerome Henderson. (jr) (Entered: 11/29/2006)
142 ORDER of USCA as to 141 Notice of Appeal filed by Jerome Henderson: It is Ordered that the motion is Granted, and a stay of execution will issue. (jr) (Entered: 12/05/2006)
143 MOTION for Reconsideration re 137 Order on Motion to Intervene, Order on Motion for Preliminary Injunction by Intervenor Plaintiff John Spirko. (Dunn, Alvin) (Entered: 12/05/2006)
144 Emergency MOTION for Preliminary Injunction , or, at the Very Least, for an Order Under the All Writs Act Staying Biros's Execution By Defendants and the State of Ohio by Intervenor Plaintiff Kenneth Biros. (Attachments: # 1 Exhibit 1

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12/06/2006 12/07/2006
12/07/2006 12/12/2006 12/15/2006
12/20/2006 12/20/2006 12/21/2006 12/22/2006

(Biros's Memo in Opposition to State's Motion to Set Execution Date)# 2 Exhibit 2 (Biros's Notice to Ohio Supreme Court of His Intervention in This Action)# 3 Exhibit 3 (Order of Ohio Supreme Court dated 11/30/06 Setting Execution Date))(Sweeney, Timothy) (Entered: 12/05/2006)
145 ORDER denying 143 Petitioner Spirko's Motion for Reconsideration of the 11/22/06 Opinion and Order . Signed by Judge Gregory L Frost on 12/6/06. (sem1, ) (Entered: 12/06/2006)
146 ORDER re 144 Emergency MOTION for Preliminary Injunction , or, at the Very Least, for an Order Under the All Writs Act Staying Biros's Execution By Defendants and the State of Ohio filed by Kenneth Biros; Defendants' Memorandum in Opposition is due by 12/12/06; Biros's Reply shall be filed by 12/15/06; Non-oral hearing on said Motion set for 12/18/2006. Signed by Judge Gregory L Frost on 12/7/06. (sem1, ) (Entered: 12/07/2006)
147 NOTICE of Hearing: Telephone Conference set for 12/11/2006 10:00 AM before Gregory L Frost (The Court will initiate the call). (sem1, ) (Entered: 12/07/2006)
148 RESPONSE in Opposition re 144 Emergency MOTION for Preliminary Injunction , or, at the Very Least, for an Order Under the All Writs Act Staying Biros's Execution By Defendants and the State of Ohio filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 # 2 # 3)(Collyer, Michael) (Entered: 12/12/2006)
149 REPLY to Response to Motion re 144 Emergency MOTION for Preliminary Injunction , or, at the Very Least, for an Order Under the All Writs Act Staying Biros's Execution By Defendants and the State of Ohio filed by Intervenor Plaintiff Kenneth Biros. (Attachments: # 1 Exhibit 1 (ND CAL Docket)# 2 Exhibit 2 (9th Cir Docket)# 3 Exhibit 3 (News article, Gainesville Sun)# 4 Exhibit 4 (News article, Hartford Courant)# 5 Exhibit 5 (News Article, Miami Herald)# 6 Exhibit 6 (News article, St. Petersburg Times)# 7 Exhibit 7 (Aff of N. Dupree)# 8 Exhibit 8 (News article, New York Times)# 9 Exhibit 9 (N.D. Cal. Memo of Intended Decision)# 10 Exhibit 10 (Defendants' App to Vacate Stay))(Sweeney, Timothy) (Entered: 12/15/2006)
Filing fee for apppeal: $ 455.00, receipt number 254347. (kch) (Entered: 12/20/2006)
150 NOTICE OF APPEAL as to 137 Order on Motion to Intervene, Order on Motion for Preliminary Injunction by Intervenor Plaintiff John Spirko. Filing fee $ 455. (Dunn, Alvin) (Entered: 12/20/2006)
151 ORDER granting 144 Intervenor Plaintiff Biros's Emergency Motion for Preliminary Injunction; The Court hereby STAYS the execution of Intervenor Plaintiff Biros. Signed by Judge Gregory L Frost on 12/21/06. (sem1, ) Additional attachment(s) added on 12/21/2006 (sem1, ). (Entered: 12/21/2006)
152 NOTICE OF APPEAL as to 151 Order on Motion for Preliminary Injunction, by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. Filing fee $ 455. (Attachments: # 1 Doc. 151 - Biros Injunction Order)(Collyer, Michael) (Entered: 12/22/2006)

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12/26/2006 12/26/2006 12/28/2006 01/03/2007
01/09/2007 01/17/2007 01/24/2007 01/30/2007 02/20/2007 02/20/2007 02/20/2007 02/20/2007 02/20/2007 02/20/2007 02/22/2007

USCA Case Number 06-4660 for 152 Notice of Appeal. (er ) (Entered: 12/26/2006)
Filing fee: $ 455, receipt number 254378 (appeal 152) (jr) (Entered: 12/26/2006)
153 TRANSCRIPT REQUEST by Intervenor Plaintiff John Spirko re 150 Notice of Appeal (Dunn, Alvin) (Entered: 12/28/2006)
154 MOTION to Intervene as Plaintiff by Nicole Diar. (Attachments: # 1 Exhibit Proposed Complaint# 2 Exhibit Grievance Designation# 3 Exhibit Grievance Decision# 4 Exhibit DRC Execution Protocol)(Tkacz, Ruth) (Entered: 01/03/2007)
155 MOTION to Intervene filed by Clarence Carter (Attachments: # 1 Exhibit A Proposed Complaint# 2 A-1# 3 A-2# 4 A-3# 5 A-4# 6 A-5)(Prucha, Linda) (Entered: 01/09/2007)
156 ORDER of USCA as to 152 Notice of Appeal, filed by Terry Collins, Reginald Wilkinson, James Haviland, Robert Taft, Edwin Voorhies. (jr) (Entered: 01/18/2007)
157 RESPONSE to Motion re 154 MOTION to Intervene as Plaintiff by Nicole Diar filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Gosselin, Heather) (Entered: 01/24/2007)
158 RESPONSE in Opposition re 155 MOTION to Intervene by Clarence Carter filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Collyer, Michael) (Entered: 01/30/2007)
159 MOTION to Expedite Ruling on His Motion to Intervene In this Action by Intervenor Plaintiff Clarence Carter. (Attachments: # 1 Exhibit A - Set Execution Date# 2 Exhibit B - Response)(Prucha, Linda) (Entered: 02/20/2007)
160 ORDER granting 155 Movant Clarence Carter's Motion to Intervene as Plaintiff-Intervenor . Signed by Judge Gregory L Frost on 2/20/07. (sem1, ) (Entered: 02/20/2007)
161 Intervenor COMPLAINT filed by Intervenor Plaintiff Clarence Carter against Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson and James Haviland. (Attachments: # 1 # 2 # 3 # 4 # 5)(sem1, ) (Entered: 02/20/2007)
162 ORDER granting 154 Movant Nicole Diar's Motion to Intervene as a Plaintiff-Intervenor . Signed by Judge Gregory L Frost on 2/20/07. (sem1, ) (Entered: 02/20/2007)
163 Intervenor COMPLAINT filed by Intervenor Plaintiff Nicole Diar against Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 # 2 # 3)(sem1, ) (Entered: 02/20/2007)
164 MOTION to Intervene by Intervenor Plaintiff Mark W Wiles. (Attachments: # 1 Exhibit)(jr) Additional attachment(s) added on 2/22/2007 (sem1, ). (Entered: 02/21/2007)
Notice of Correction re 164 Wiles's MOTION to Intervene: Per Judge Frost's instructions, document # 165 was deleted and attached to the Motion to Intervene

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03/06/2007 03/06/2007 03/14/2007 03/22/2007 04/07/2007 04/19/2007 04/19/2007 04/19/2007
04/20/2007 04/20/2007
04/20/2007
04/20/2007

164 (sem1, ) (Entered: 02/22/2007)
165 USCA Information Copy re 22 USCA Order. (sr) (Entered: 03/07/2007)
166 USCA Judgment re 22 USCA Order. It is ORDERED that the Judgment of the District Court is REMANDED w/instructions to DISMISS Plaintiff's complaint w/prejudice as barred by the statute of limitations. (sr) (Entered: 03/07/2007)
167 RESPONSE in Opposition re 164 MOTION to Intervene of Mark W. Wiles filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 Holmes v. Boal# 2 State Farm v. US# 3 Cooey v. Strickland)(Collyer, Michael) (Entered: 03/14/2007)
168 ORDER of USCA as to 152 Notice of Appeal filed filed by Terry Collins, Reginald Wilkinson, James Haviland, Robert Taft & Edwin Voorhies. The petition for rehearing has been referred to the original panel. The issues were fully considered. It is ordered that the petition be DENIED. (sr) (Entered: 03/23/2007)
169 Emergency MOTION to Intervene as party plaintiff by Kevin Keith. (Attachments: # 1 Exhibit Keith's Proposed Complaint)(Reinhart, Harry) (Entered: 04/07/2007)
170 MOTION for Preliminary Injunction by Intervenor Plaintiff Clarence Carter. (Attachments: # 1 Exhibit 1 - Notice of Intervention# 2 Exhibit 2 - Entry Execution Date# 3 Exhibit 3 - Motion Stay Execution Date# 4 Exhibit 4 Response Opposing Motion)(Prucha, Linda) (Entered: 04/19/2007)
171 MOTION to Intervene of James J. Filiaggi. (Attachments: # 1)(Gamso, Jeffrey) (Entered: 04/19/2007)
175 ORDER of USCA as to 152 Notice of Appeal filed by Terry Collins, Reginald Wilkinson, James Haviland, Robert Taft, Edwin Voorhies & Order 151. The application to vacate the stay of execution of sentence of death entered by the U.S. District Court, Southern District of Ohio on 12/21/2006, presented to Justice Stevens and by him referred to the Court, is denied. (sr) (Entered: 04/20/2007)
172 MOTION for Preliminary Injunction by Intervenor Plaintiff James J. Filiaggi. (Attachments: # 1)(Gamso, Jeffrey) (Entered: 04/20/2007)
173 ORDER re 171 MOTION to Intervene of James J. Filiaggi filed by James J. Filiaggi; Defendants shall file a memorandum in opposition by 4/21/07; Movant Filiaggi shall file any reply memorandum by 4/22/07; Non-oral hearing on said motion set for 4/23/2007. Signed by Judge Gregory L Frost on 4/20/07. (sem1, ) (Entered: 04/20/2007)
174 ORDER re 170 MOTION for Preliminary Injunction or a Stay under the All Writs Act filed by Clarence Carter; Defendants shall file any memorandum in opposition by 4/27/07; Plaintiff Carter shall file any reply memoranda by 5/2/07; Non-oral hearing on said motion set for 5/3/2007. Signed by Judge Gregory L Frost on 4/20/07. (sem1, ) (Entered: 04/20/2007)
Minute Entry for proceedings held before Judge Gregory L Frost : Telephone Conferences held on 4/20/2007 re Carter & Filiaggi (docketed for statistical purposes only). (sem1, ) (Entered: 04/20/2007)

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04/22/2007 04/23/2007 04/23/2007 04/23/2007 04/23/2007 04/25/2007 04/25/2007 04/25/2007 04/27/2007 04/27/2007 04/29/2007 05/01/2007 05/02/2007

176 REPLY to Response to Motion re 172 MOTION for Preliminary Injunction, 171 MOTION to Intervene of James J. Filiaggi filed by Intervenor Plaintiff James J. Filiaggi. (Gamso, Jeffrey) (Entered: 04/22/2007)
177 RESPONSE in Opposition re 172 MOTION for Preliminary Injunction filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 Exhibit 1 # 2 Exhibit 2 # 3 Exhibit 3) (kch) (Entered: 04/23/2007)
178 ORDER denying 171 Filiaggi's Motion to Intervene without prejudice and denying as moot 172 Filiaggi's Motion for Preliminary Injunction. Signed by Judge Gregory L Frost on 4/23/07. (ksh, ) (Entered: 04/23/2007)
179 NOTICE OF APPEAL as to 178 Order on Motion to Intervene, Order on Motion for Preliminary Injunction by James J. Filiaggi. Appeal Record due by 5/23/2007. (Gamso, Jeffrey) (Entered: 04/23/2007)
USCA Case Number 07-3488 for 179 Notice of Appeal filed by James J. Filiaggi. (kch) (Entered: 04/23/2007)
180 First MOTION to Intervene of Billy Slagle. Motions referred to Mark R. Abel. (Attachments: # 1 Exhibit A - Complaint# 2 Exhibit A-1# 3 Exhibit A-2# 4 Exhibit A-3# 5 Exhibit A-4# 6 Exhibit A-5) (Culshaw, Kelly) (Entered: 04/25/2007)
181 MOTION to Intervene with Memorandum in Support filed by Romell Broom. Motions referred to Mark R. Abel. (Attachments: # 1 Exhibit A, Proposed Intervenor Complaint (with Exhibits 1 to 6)) (Sweeney, Timothy) (Entered: 04/25/2007)
186 ORDER of USCA as to 179 Notice of Appeal filed by James J. Filiaggi in that the Emergency Motion for Stay of Execution is DENIED (sem1, ) (Entered: 05/01/2007)
182 RESPONSE in Opposition re 169 Emergency MOTION to Intervene as party plaintiff by Kevin Keith filed by Defendants Terry Collins, Edwin Voorhies, romell broom, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 # 2) (Collyer, Michael) (Entered: 04/27/2007)
183 RESPONSE in Opposition re 170 MOTION for Preliminary Injunction of Clarence Carter filed by Defendants Terry Collins, Edwin Voorhies, romell broom, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 # 2) (Collyer, Michael) (Entered: 04/27/2007)
184 REPLY to Response to Motion re 169 Emergency MOTION to Intervene as party plaintiff Plaintiff's Reply to Defendants' Doc. #182 filed by Intervenor Plaintiff Kevin Keith. (Reinhart, Harry) (Entered: 04/29/2007)
185 MOTION to Intervene by Movant Jason Getsy. (Attachments: # 1 Proposed Complaint# 2 Exhibits) (Stebbins, David) (Entered: 05/01/2007)
187 REPLY to the Response to re 170 MOTION to Intervene to motion for preliminary injunction or order under the All Writs Act filed by Intervenor Plaintiff Clarence Carter. (Attachments: # 1 Exhibit no.1# 2 Exhibit no.2) (Prucha,

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05/02/2007 05/02/2007 05/15/2007 05/16/2007 05/16/2007 05/22/2007 05/22/2007 05/23/2007 05/30/2007 05/31/2007
06/04/2007 06/06/2007

Linda) (Entered: 05/02/2007)
188 MOTION to Intervene filed by Movant Jonathon Monroe. (Attachments: # 1 Proposed Complaint# 2 Exhibit # 3 Exhibit # 4) (Stebbins, David) (Entered: 05/02/2007)
189 AMENDED REPLY to Response to Motion re 170 MOTION for Preliminary Injunction or order under the All Writs Act filed by Intervenor Plaintiff Clarence Carter. (Attachments: # 1 Exhibit no.1# 2 Exhibit no.2) (Prucha, Linda) (Entered: 05/02/2007)
190 NOTICE of Appearance by Charles L Wille for Defendant Robert Taft (Wille, Charles) (Entered: 05/15/2007)
191 RESPONSE in Opposition re 181 MOTION to Intervene by Romell Broom with Memorandum in Support filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 05/16/2007)
192 RESPONSE in Opposition re 180 First MOTION to Intervene of Billy Slagle filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 05/16/2007)
193 RESPONSE in Opposition re 185 Jason Getsy's MOTION to Intervene filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, James Haviland. (Wille, Charles) (Entered: 05/22/2007)
194 RESPONSE in Opposition re 188 Jonathon Monroe's MOTION to Intervene filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 05/22/2007)
195 REPLY to Response to Motion re 180 First MOTION to Intervene of Billy Slagle filed by Intervenor Plaintiff Billy Slagle. (Culshaw, Kelly) (Entered: 05/23/2007)
196 REPLY to Response to Motion re 181 MOTION to Intervene with Memorandum in Support filed by Movant Romell Broom. (Attachments: # 1 Exhibit A) (Sweeney, Timothy) (Entered: 05/30/2007)
197 ORDER granting 170 Plaintiff Clarence Carter's Emergency Motion for Preliminary Injunction. The State of Ohio 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. Signed by Judge Gregory L Frost on 5/31/07. (Attachments: # 1 Biros Order# 2 Henderson Order# 3 Hill Order# 4 Lundgren Order# 5 Spirko Order) (sem1, ) (Entered: 05/31/2007)
198 ORDER of USCA as to Notice of Appeal filed by John R Hicks. The panel has further reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of the case. Accordingly, the petition is denied. (sr) (Entered: 06/05/2007)
199 MOTION to Expedite Ruling on Pending Motion to Intervene with Notice that the Ohio Supreme Court has Today Set Broom's Execution Date for October 18, 2007 by Movant Romell Broom. (Attachments: # 1 Exhibit 1 (Order setting execution date) (Sweeney, Timothy) (Entered: 06/06/2007)

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06/13/2007 06/13/2007
06/19/2007 06/25/2007
06/25/2007 06/25/2007 06/25/2007 06/25/2007 06/25/2007 06/25/2007 06/28/2007 06/29/2007

200 NOTICE of Appearance by Janet R Hill Arbogast Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland (Arbogast, Janet) (Entered: 06/13/2007)
201 ORDER of USCA as to Notice of Appeal filed by John R Hicks. Upon consideration of appellee's motion to stay mandate, It is ORDERED that the mandate be stayed to allow appellee time to file a petition for a writ of certiorari, and thereafter until the Supreme Court disposes of the case, but shall promptly issue if the petition is not filed within 90 days from the date of final judgment by this court. (sr) (Entered: 06/13/2007)
202 MOTION to Expedite Ruling on Motion to Intervene (Dkt. 180) by Intervenor Plaintiff Billy Slagle. (Culshaw, Kelly) (Entered: 06/19/2007)
203 ORDER granting 164 Wiles's Motion to Intervene; granting 169 Keith's Motion to Intervene; granting 180 Slagle's Motion to Intervene; granting 181 Broom's Motion to Intervene; granting 185 Getsy's Motion to Intervene; granting 188 Monroe's Motion to Intervene; denying as moot 199 202 Motions to Expedite Rulings. Signed by Judge Gregory L Frost on 6/25/07. (sem1, ) (Entered: 06/25/2007)
204 Intervenor COMPLAINT filed by Intervenor Plaintiff Mark W Wiles against Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 # 2) (sem1, ) (Entered: 06/25/2007)
205 Intervenor COMPLAINT filed by Intervenor Plaintiff Kevin Keith against Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (sem1, ) (Entered: 06/25/2007)
206 Intervenor COMPLAINT filed by Intervenor Plaintiff Billy Slagle against Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 # 2 # 3 # 4 # 5) (sem1, ) (Entered: 06/25/2007)
207 Intervenor COMPLAINT filed by Intervenor Plaintiff Romell Broom against Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (sem1, ) (Entered: 06/25/2007)
208 Intervenor COMPLAINT filed by Intervenor Plaintiff Jason Getsy against Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1) (sem1, ) (Entered: 06/25/2007)
209 Intervenor COMPLAINT filed by Intervenor Plaintiff Jonathon D. Monroe against Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 # 2 # 3) (sem1, ) (Entered: 06/25/2007)
210 NOTICE of Appearance by Carol Ann Ellensohn for Defendant Robert Taft (Ellensohn, Carol) (Entered: 06/28/2007)
211 NOTICE of Appearance by Brian J Laliberte for Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland (Laliberte, Brian) (Entered: 06/29/2007)

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06/29/2007
06/29/2007 07/02/2007 07/20/2007
07/23/2007 07/23/2007 07/31/2007
08/01/2007 08/08/2007 08/09/2007 08/15/2007 08/15/2007

212 Emergency MOTION for Preliminary Injunction , Or, at the Very Least, for an Order Under the All Writs Act Staying Broom's Execution (currently scheduled for October 18, 2007) by Intervenor Plaintiff Romell Broom. (Attachments: # 1 Exhibit 1, Broom's Filing in Ohio Supreme Court# 2 Exhibit 2, Order Setting Execution Date# 3 Exhibit 3, Newspaper Article# 4 Exhibit 4, Newspaper Article# 5 Exhibit 5, PLoS Study# 6 Exhibit 6, Newspaper Article) (Sweeney, Timothy) (Entered: 06/29/2007)
213 MOTION to Intervene of Proposed Intervenor Grady L. Brinkley. (Attachments: # 1 Exhibit A, Proposed Intervenor Complaint (with Exhibits 1-4)) (Sweeney, Timothy) (Entered: 06/29/2007)
214 MOTION to Intervene as Plaintiff by Marvin Johnson. (Attachments: # 1 Exhibit A - Complaint# 2 Exhibit A-1# 3 Exhibit A-2# 4 Exhibit A-3# 5 Exhibit A-4# 6 Exhibit A-5) (Rigby, Kimberly) (Entered: 07/02/2007)
215 RESPONSE in Opposition re 212 Emergency MOTION for Preliminary Injunction , Or, at the Very Least, for an Order Under the All Writs Act Staying Broom's Execution (currently scheduled for October 18, 2007)Emergency MOTION for Preliminary Injunction , Or, at the Very Least, for an Order Under the All Writs Act Staying Broom's Execution (currently scheduled for October 18, 2007) filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 07/20/2007)
216 RESPONSE to Motion re 213 MOTION to Intervene of Proposed Intervenor Grady L. Brinkley filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 07/23/2007)
217 RESPONSE to Motion re 214 MOTION to Intervene as Plaintiff by Marvin Johnson filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 07/23/2007)
218 MOTION to Intervene as Plaintiff by Daniel A. Wilson. (Attachments: # 1 Exhibit A: Proposed Complaint# 2 Exhibit A-1: Informal Complaint# 3 Exhibit A-2: Formal Grievance# 4 Exhibit A-3: Disposition of Formal Grievance# 5 Exhibit A-4: Appeal to Chief Inspector# 6 Exhibit A-5: Decision of Chief Inspector) (Doughten, David) (Entered: 07/31/2007)
219 MOTION to Intervene as Plaintiff James T. Conway. (Attachments: # 1 Exhibit A - A-4# 2 Exhibit A-5 - A-10) (Porter, Randall) (Entered: 08/01/2007)
220 MOTION to Intervene By Darryl Durr. (Attachments: # 1 Exhibit A-Proposed Complaint# 2 Exhibit A-1--A-6 Lethal Injection Administrative Exhaustion Documents) (McGarry, Kathleen) (Entered: 08/08/2007)
221 NOTICE of Appearance by Randall Lee Porter for Intervenor Plaintiff James T. Conway (Porter, Randall) (Entered: 08/09/2007)
222 RESPONSE in Opposition re 219 MOTION to Intervene as Plaintiff James T. Conway filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 08/15/2007)
223 RESPONSE in Opposition re 220 MOTION to Intervene By Darryl Durr filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson,

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08/15/2007 09/05/2007
09/07/2007

James Haviland. (Wille, Charles) (Entered: 08/15/2007)
224 RESPONSE in Opposition re 218 MOTION to Intervene as Plaintiff by Daniel A. Wilson filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (lvw1, ) (Entered: 08/15/2007)
225 ORDER granting 212 Broom's Emergency Motion for Preliminary Injunction; The State of Ohio and any person acting on its behalf are hereby STAYED from implementing an order for the execution of Romell Broom issued by any court of the State of Ohio until further Order from this Court. Signed by Judge Gregory L Frost on 9/5/07. (Attachments: # 1 12/21/06 Opinion and Order) (sem1, ) (Entered: 09/05/2007)
226 MOTION to Intervene by Michael Turner. (Attachments: # 1 Proposed Complaint# 2 Greivance# 3 Reply) (Stebbins, David) (Entered: 09/07/2007)

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 Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 1 of 114
CLOSED,CONSOL
U.S. District Court Southern District of Ohio (Columbus) CIVIL DOCKET FOR CASE #: 2:04−cv−01156−GLF−MRA

Cooey v. Kasich et al Assigned to: Judge Gregory L Frost Referred to: Magistrate Judge Mark R. Abel Case in other court: Sixth Circuit, 07−03488
6th Circuit Court of Appeals, 08−04177 6th Circuit Court of Appeals, 08−04197 6th Circuit Court of Appeals, 08−04198 6th Circuit Court of Appeals, 08−04199 6th Circuit Court of Appeals, 08−04200 6th Circuit Court of Appeals, 08−04201 6th Circuit Court of Appeals, 08−04203 6th Circuit Court of Appeals, 08−04205 6th Circuit Court of Appeals, 08−04206 Sixth Circuit, 08−04387 6th Circuit, 09−03604 Sixth Circuit Court of Appeals, 09−04300 6th Circuit, 10−03467 6th Circuit, 10−03598 Cause: 42:1983 Civil Rights Act Plaintiff

Date Filed: 05/27/2009 Date Terminated: 12/05/2011 Jury Demand: Defendant Nature of Suit: 535 Death Penalty − Habeas Corpus Jurisdiction: Federal Question

Richard Cooey TERMINATED: 07/07/2008

represented by Gregory William Meyers Ohio Public Defender's Office − 2 250 E. Broad Street Suite 1400 Columbus, OH 43215−0587 614−466−5394 Email: greg.meyers@opd.state.oh.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Allen L. Bohnert Office of the Federal Public Defender 10 West Broad Street Suite 1020 Columbus, OH 43215−3419 614−469−2999 Fax: 614−469−5999 Email: Allen_Bohnert@fd.org ATTORNEY TO BE NOTICED

Kelly Leann Schneider Arizona Federal Public Defender 850 West Broad Street Suite 201 Phoenix, AZ 85007 602−382−2816 Fax: 602−382−2800 Email: Kelly_Schneider@fd.org TERMINATED: 01/26/2011 ATTORNEY TO BE NOTICED

Plaintiff John Drummond

represented by

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 2 of 114

Allen L. Bohnert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol Ann Wright Federal Public Defenders Office 10 W Broad Street Suite 1020 Columbus, OH 43215 614−469−2999 Fax: 614−469−5999 Email: Carol_Wright@fd.org ATTORNEY TO BE NOTICED

Plaintiff Danny Hill

represented by Allen L. Bohnert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol Ann Wright (See above for address) ATTORNEY TO BE NOTICED

Plaintiff George Skatzes

represented by Allen L. Bohnert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol Ann Wright (See above for address) ATTORNEY TO BE NOTICED

Plaintiff David Sneed

represented by Allen L. Bohnert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol Ann Wright (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Raymond A Twyford, III

represented by Allen L. Bohnert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol Ann Wright (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Andre Williams

represented by Allen L. Bohnert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol Ann Wright

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 3 of 114
(See above for address) ATTORNEY TO BE NOTICED

V. Intervenor Plaintiff John R Hicks TERMINATED: 01/04/2006
Intervenor Plaintiff Jeffrey D Hill TERMINATED: 08/25/2008
Intervenor Plaintiff Johnnie Baston TERMINATED: 09/25/2008

represented by Marc David Mezibov Law Office of Marc Mezibov 401 East Court Street Suite 600 Cincinnati, OH 45202 513/621−8800 Fax: 513/621−8833 Email: mmezibov@mezibov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christian A Jenkins Minnillo &Jenkins Co., LPA 2712 Observatory Avenue Cincinnati, OH 45208 513−723−1600 Fax: 513−723−1620 Email: cjenkins@minnillojenkins.com ATTORNEY TO BE NOTICED
represented by Gary Wayne Crim 943 Manhattan Ave Dayton, OH 45406−5141 937−276−5770 Email: gary_crim@ameritech.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Bodiker Ohio Public Defender's Office − 2 8 E Long Street 11th Floor Columbus, OH 43215−0587 614−466−5394 Email: bodiker@opd.state.oh.us TERMINATED: 01/26/2011
Timothy R Payne Ohio Public Defender's Office − 2 8 E Long Street 11th Floor Columbus, OH 43215−0587 614−466−5394 Email: paynet@opd.state.oh.us TERMINATED: 08/25/2008
represented by Gregory William Meyers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kyle Edward Timken Ohio Public Defender's Office − 2 8 E Long Street

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 4 of 114

11th Floor Columbus, OH 43215−0587 614−466−5394 Email: timkenk@opd.state.oh.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pamela J Prude−Smithers Ohio Public Defender's Office − 2 250 E. Broad Street Suite 1400 Columbus, OH 43215−0587 614−466−5394 Fax: 614−644−0708 Email: Prude−SP@opd.state.oh.us TERMINATED: 05/21/2009 LEAD ATTORNEY

Kimberly S Rigby Ohio Public Defender 250 East Broad Street Suite 1400 Columbus, OH 43215 614−466−5394 Email: kim.rigby@opd.ohio.gov TERMINATED: 05/21/2009

Tyson L Fleming Office of the Ohio Public Defender 250 E. Broad Street Suite 1400 Columbus, OH 43215 614−466−5394 Fax: 614−644−0708 Email: tyson.fleming@opd.ohio.gov TERMINATED: 01/26/2011 ATTORNEY TO BE NOTICED

Robert Brady Barnhart Ohio Public Defender 250 E. Broad St Suite 1400 Columbus, OH 43215 614−466−5394 Fax: 614−644−0708 Email: robert.barnhart@opd.ohio.gov ATTORNEY TO BE NOTICED

Intervenor Plaintiff
Arthur Tyler TERMINATED: 08/25/2008

represented by Richard M Kerger Kerger &Kerger 33 S Michigan Street Suite 201 Toledo, OH 43602 419−255−5990 Email: rickkerger@kergerkerger.com TERMINATED: 08/25/2008 LEAD ATTORNEY

Kathryn L Sandford Ohio Public Defender's Office 250 E Broad Street Suite 1400 Columbus, OH 43215

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 5 of 114

614−466−5394 Fax: 614−644−9972 Email: kathryn.sandford@opd.state.oh.us TERMINATED: 05/21/2009

Robert Brady Barnhart (See above for address) ATTORNEY TO BE NOTICED

Intervenor Plaintiff Jerome Henderson

represented by Carol Ann Wright (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David C. Stebbins Federal Public Defenders Office Capital Habeas Unit 10 West Broad Street Suite 1020 Columbus, OH 43215 614−469−2999 Email: David_Stebbins@fd.org TERMINATED: 11/09/2006 ATTORNEY TO BE NOTICED

Intervenor Plaintiff
Jeffrey Don Lundgren TERMINATED: 06/23/2009

represented by James A Jenkins 2000 Standard Building 1370 Ontario Street Cleveland, OH 44113 216−363−6003 Fax: 216−363−6013 Email: jajenkins49@hotmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Plaintiff
Kenneth Biros TERMINATED: 04/23/2010

represented by Timothy F Sweeney 820 Superior Avenue NW Suite 430 Cleveland, OH 44113−1800 216−241−5003 Fax: 216−241−3138 Email: tim@timsweeneylaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Patrick Parker 988 East 185th Street Cleveland, OH 44119 216−881−0900 Fax: 216−881−3928 Email: johnpparker@earthlink.net ATTORNEY TO BE NOTICED

Intervenor Plaintiff
John Spirko TERMINATED: 01/22/2008

represented by David C. Stebbins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 6 of 114

Alison B Rousseau Pillsbury Winthrop Shaw Pittman, LLP 2300 N Street NW Washington, DC 20037 Email: alison.rousseau@pillsburylaw.com

Alvin Dunn Pillsbury Winthrop Shaw Pittman, LLP 2300 N Street NW Washington, DC 20037 202−663−8355 Fax: 202−354−5442 Email: alvin.dunn@pillsburylaw.com

Ashley McDonald Pillsbury Winthrop Shaw Pittman, LLP 2300 N Street NW Washington, DC 20037 202−663−8732 Email: ashley.mcdonald@pillsburylaw.com

Thomas C Hill Pillsbury Winthrop Shaw Pittman, LLP 2300 N Street NW Washington, DC 20037 202−663−8073 Fax: 202−663−8007 Email: thomas.hill@pillsburylaw.com

Intervenor Plaintiff
Nicole Diar TERMINATED: 05/20/2009

represented by Ruth L Tkacz Ohio Public Defender's Office 250 E. Broad Street Suite 1400 Columbus, OH 43215−0587 614−466−5394 Email: ruth.tkacz@opd.ohio.gov TERMINATED: 05/20/2009 LEAD ATTORNEY

Intervenor Plaintiff
Clarence Carter TERMINATED: 04/13/2011

represented by Gregory William Meyers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelly Leann Schneider (See above for address) TERMINATED: 01/26/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph E Wilhelm Federal Public Defender's Office Capital Habeas Unit 1660 W. 2nd Street Suite 750 Cleveland, OH 44113 216−522−4856 Fax: 216−522−1951 Email: joseph_wilhelm@fd.org TERMINATED: 01/26/2011 ATTORNEY TO BE NOTICED

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 7 of 114

Linda E Prucha Ohio Public Defender's Office − 2 250 E. Broad Street Suite 1400 Columbus, OH 43215−0587 614−466−5394 Fax: 614−644−0708 Email: linda.prucha@opd.state.oh.us TERMINATED: 01/26/2011 ATTORNEY TO BE NOTICED

Randall Lee Porter Ohio Public Defender Office 250 East Broad St., Ste. 1400 Columbus, OH 43215 614−466−5394 Fax: 614−644−0708 Email: randall.porter@opd.state.oh.us ATTORNEY TO BE NOTICED

Robert Brady Barnhart (See above for address) ATTORNEY TO BE NOTICED

Intervenor Plaintiff
Mark W Wiles TERMINATED: 09/25/2008

represented by Allen L. Bohnert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael William Krumholtz Bieser, Greer &Landis − 3 6 North Main Street 400 PNC Center Dayton, OH 45402 937−223−3277 Fax: 937−223−6339 Email: mwk@bgllaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kirstie N. Young Bieser, Greer &Landis − 3 6 North Main Street 400 National City Center Dayton, OH 45402 937−223−3277 Fax: 937−223−6339 Email: knb@bgllaw.com ATTORNEY TO BE NOTICED

Lawrence Joseph Greger Greger Law Office 120 W Second Street Suite 1100 Dayton, OH 45402 937−223−3153 Email: LGreger912@aol.com ATTORNEY TO BE NOTICED

Randall Lee Porter (See above for address) ATTORNEY TO BE NOTICED

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 8 of 114

Intervenor Plaintiff
Kevin Keith TERMINATED: 08/25/2008

represented by Carol Ann Wright (See above for address) TERMINATED: 12/18/2007

Harry Robert Reinhart Reinhart Law Office − 1 400 S Fifth Street Suite 301 Columbus, OH 43215−5430 614−228−7771 Fax: 614−221−8601 Email: harry@hreinhartlaw.com TERMINATED: 12/18/2007

Rachel Troutman Ohio Public Defender Death Penalty Division 250 East Broad Street Suite 1400 Columbus, OH 43215 614−466−9323 Fax: 614−644−0708 Email: rachel.troutman@opd.ohio.gov TERMINATED: 05/21/2009

Tyson L Fleming (See above for address) TERMINATED: 01/26/2011 ATTORNEY TO BE NOTICED

Intervenor Plaintiff
James J. Filiaggi TERMINATED: 04/23/2007

represented by Jeffrey M Gamso GAMSO, HELMICK &HOOLAHAN 1119 Adams Street Second Floor Toledo, OH 43604 419−243−3800 Fax: 419−243−4046 Email: jeff.gamso@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Spiros P Cocoves 610 Adams Street Second Floor Toledo, OH 43604 419−241−5506 Fax: 419−242−3442 Email: scocoves@gmail.com ATTORNEY TO BE NOTICED

Intervenor Plaintiff Billy Slagle

represented by Allen L. Bohnert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory William Meyers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 9 of 114

Carol Ann Wright (See above for address) ATTORNEY TO BE NOTICED

Joseph E Wilhelm (See above for address) TERMINATED: 01/26/2011 ATTORNEY TO BE NOTICED

Kelly Leann Schneider (See above for address) TERMINATED: 01/26/2011 ATTORNEY TO BE NOTICED

Randall Lee Porter (See above for address) ATTORNEY TO BE NOTICED

Robert Brady Barnhart (See above for address) ATTORNEY TO BE NOTICED

Intervenor Plaintiff
Romell Broom TERMINATED: 08/25/2008

represented by Timothy F Sweeney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

S Adele Shank 3380 Tremont Road 2nd Floor Columbus, OH 43221−2112 614−326−1217 Fax: 614−326−1028 Email: shanklaw@att.net ATTORNEY TO BE NOTICED

Robert Brady Barnhart (See above for address) ATTORNEY TO BE NOTICED

Intervenor Plaintiff
Jason Getsy TERMINATED: 08/26/2008

represented by David C. Stebbins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J Benza 17850 Geauga Lake Road Chagrin Falls, Oh 44023 216−319−1247 Fax: 440−708−2627 Email: michael.benza@case.edu ATTORNEY TO BE NOTICED

Intervenor Plaintiff Jonathon D. Monroe

represented by David C. Stebbins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Allen L. Bohnert (See above for address)

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 10 of 114

ATTORNEY TO BE NOTICED

Intervenor Plaintiff Grady L. Brinkley

represented by Timothy F Sweeney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Plaintiff
Marvin G. Johnson TERMINATED: 01/11/2010

represented by Gregory William Meyers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pamela J Prude−Smithers (See above for address) TERMINATED: 01/26/2011 LEAD ATTORNEY

Kelly Leann Schneider (See above for address) TERMINATED: 01/26/2011 ATTORNEY TO BE NOTICED

Kimberly S Rigby (See above for address) TERMINATED: 05/21/2009

Randall Lee Porter (See above for address) ATTORNEY TO BE NOTICED

Timothy Young Ohio Public Defender 250 E. Broad Street Suite 1400 Columbus, OH 43215 614−466−5394 Fax: 614−644−9972 Email: tim.young@opd.ohio.gov TERMINATED: 01/26/2011 ATTORNEY TO BE NOTICED

Intervenor Plaintiff
Daniel A Wilson TERMINATED: 08/25/2008

represented by Alan C Rossman Federal Public Defender, Northern District of Ohio Capital Habeas Unit 1660 W. 2nd Street Suite 750 Cleveland, OH 44113 216−522−4856 Fax: 216−522−1951 Email: alan_rossman@fd.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

David L Doughten 4403 St. Clair Avenue Cleveland, OH 44103−1125 216−361−1112 Email: ddoughten@yahoo.com ATTORNEY TO BE NOTICED

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 11 of 114

Intervenor Plaintiff James T. Conway
Intervenor Plaintiff Darryl M Durr TERMINATED: 04/23/2010
Intervenor Plaintiff Michael R Turner TERMINATED: 08/25/2008

represented by Gregory William Meyers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Pamela J Prude−Smithers (See above for address) TERMINATED: 01/26/2011 LEAD ATTORNEY
David Bodiker (See above for address) TERMINATED: 01/26/2011
Kathryn L Sandford (See above for address) TERMINATED: 05/21/2009
Kelly Leann Schneider (See above for address) TERMINATED: 01/26/2011 ATTORNEY TO BE NOTICED
Randall Lee Porter (See above for address) ATTORNEY TO BE NOTICED
Timothy Young (See above for address) TERMINATED: 01/26/2011 ATTORNEY TO BE NOTICED
Robert Brady Barnhart (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis Lyle Sipe Buell and Sipe Co. LPA − 2 322 Third Street Marietta, OH 45750 740−373−3219 Fax: 740−373−2892 Email: dennis@buellsipe.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen McGarry PO Box 310 Glorieta, NM 87535 505−757−3989 Fax: 888−470−6313 Email: kate@kmcgarrylaw.com ATTORNEY TO BE NOTICED
represented by David C. Stebbins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 12 of 114

Intervenor Plaintiff
Melvin Bonnell TERMINATED: 08/25/2008

represented by Kimberly S Rigby (See above for address) TERMINATED: 05/21/2009

Intervenor Plaintiff
Maurice Mason TERMINATED: 08/25/2008

represented by David C. Stebbins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Plaintiff
Michael Beuke TERMINATED: 05/17/2010

represented by Dale Andrew Baich Office of the Federal Public Defender 850 West Adams Suite 201 Phoenix, AZ 85007 602−382−2816 Fax: 602−889−3960 Email: dale_baich@fd.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kenneth Foye Murray Office of the Public Defender 850 West Adams Suite 201 Phoenix, AZ 85007 602−382−2816 Email: ken_murray@fd.org ATTORNEY TO BE NOTICED

Robin C. Konrad 850 West Adams Street Suite 201 Phoenix, AZ 85007 602−382−2816 Fax: 602−889−3960 PRO HAC VICE ATTORNEY TO BE NOTICED

Intervenor Plaintiff
Michael W Benge TERMINATED: 10/19/2010

represented by Gregory William Meyers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelly Leann Schneider (See above for address) TERMINATED: 01/26/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randall Lee Porter (See above for address) ATTORNEY TO BE NOTICED

Intervenor Plaintiff
Richard Nields TERMINATED: 05/26/2010

represented by Carol Ann Wright (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 13 of 114

Intervenor Plaintiff 'Abdul Hakiym Zakiy TERMINATED: 08/25/2008 Intervenor Plaintiff Brett Hartmann TERMINATED: 08/25/2008
Intervenor Plaintiff Nathaniel E Jackson TERMINATED: 02/24/2011
Intervenor Plaintiff

Allen L. Bohnert (See above for address) ATTORNEY TO BE NOTICED
Randall Lee Porter (See above for address) ATTORNEY TO BE NOTICED
represented by David C. Stebbins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David C. Stebbins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Allen L. Bohnert (See above for address) ATTORNEY TO BE NOTICED
Michael J Benza (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory William Meyers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Pamela J Prude−Smithers (See above for address) TERMINATED: 01/26/2011 LEAD ATTORNEY
John Patrick Parker (See above for address) ATTORNEY TO BE NOTICED
Kelly Leann Schneider (See above for address) TERMINATED: 01/26/2011 ATTORNEY TO BE NOTICED
Randall Lee Porter (See above for address) ATTORNEY TO BE NOTICED
Timothy Young (See above for address) TERMINATED: 01/26/2011 ATTORNEY TO BE NOTICED
Robert Brady Barnhart (See above for address) ATTORNEY TO BE NOTICED

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 14 of 114

Robert W. Bethel

represented by Gregory William Meyers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pamela J Prude−Smithers (See above for address) TERMINATED: 01/26/2011 LEAD ATTORNEY

Kelly Leann Schneider (See above for address) TERMINATED: 01/26/2011 ATTORNEY TO BE NOTICED

Rachel Troutman (See above for address) TERMINATED: 05/21/2009

Randall Lee Porter (See above for address) ATTORNEY TO BE NOTICED

Timothy Young (See above for address) TERMINATED: 01/26/2011 ATTORNEY TO BE NOTICED

Robert Brady Barnhart (See above for address) ATTORNEY TO BE NOTICED

Intervenor Plaintiff Phillip L Elmore

represented by Kathleen McGarry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Sheldon Lazarow 400 S Fifth Street Suite 301 Columbus, OH 43215 614−228−9058 Fax: 614−221−8601 Email: billlazarow@aol.com ATTORNEY TO BE NOTICED

Intervenor Plaintiff Donald E Ketterer

represented by Gregory William Meyers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pamela J Prude−Smithers (See above for address) TERMINATED: 01/26/2011 LEAD ATTORNEY

Kelly Leann Schneider (See above for address) TERMINATED: 01/26/2011 ATTORNEY TO BE NOTICED

Randall Lee Porter

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 15 of 114

(See above for address) ATTORNEY TO BE NOTICED

Timothy Young (See above for address) TERMINATED: 01/26/2011 ATTORNEY TO BE NOTICED

Robert Brady Barnhart (See above for address) ATTORNEY TO BE NOTICED

Intervenor Plaintiff
William Garner TERMINATED: 07/22/2010

represented by Gregory William Meyers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelly Leann Schneider (See above for address) TERMINATED: 01/26/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randall Lee Porter (See above for address) ATTORNEY TO BE NOTICED

Intervenor Plaintiff
Shawn Hawkins TERMINATED: 06/16/2011

represented by Gregory William Meyers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelly Leann Schneider (See above for address) TERMINATED: 01/26/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randall Lee Porter (See above for address) ATTORNEY TO BE NOTICED

Robert Brady Barnhart (See above for address) ATTORNEY TO BE NOTICED

Intervenor Plaintiff
Sidney Cornwell TERMINATED: 02/01/2011

represented by Gregory William Meyers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelly Leann Schneider (See above for address) TERMINATED: 01/26/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randall Lee Porter (See above for address) ATTORNEY TO BE NOTICED

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 16 of 114

Intervenor Plaintiff Kenneth W Smith
Intervenor Plaintiff Daniel Lee Bedford TERMINATED: 05/18/2011 Intervenor Plaintiff Joseph Murphy OHIO STATE PENITENTIARY 878 Coitsville−Hubbard Road Youngstown, OH 44505 TERMINATED: 09/28/2011
Intervenor Plaintiff Reginald Brooks TERMINATED: 12/05/2011 Intervenor Plaintiff James O'Neal

represented by Allen L. Bohnert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carol Ann Wright (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sharon A Hicks Federal Public Defender Capital Habeas Unit 10 West Broad Street Suite 1020 Columbus, OH 43215 614−469−2999 Fax: 614−469−5999 Email: sharon_hicks@fd.org ATTORNEY TO BE NOTICED
represented by Carol Ann Wright (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Allen L. Bohnert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gregory William Meyers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carol Ann Wright (See above for address) ATTORNEY TO BE NOTICED
Randall Lee Porter (See above for address) ATTORNEY TO BE NOTICED
Robert Brady Barnhart (See above for address) ATTORNEY TO BE NOTICED
represented by Allen L. Bohnert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael William Krumholtz (See above for address) LEAD ATTORNEY

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 17 of 114

ATTORNEY TO BE NOTICED

Kirstie N. Young (See above for address) ATTORNEY TO BE NOTICED

Lawrence Joseph Greger (See above for address) ATTORNEY TO BE NOTICED

Intervenor Plaintiff Ahmad Fawzi Issa

represented by Michael William Krumholtz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kirstie N. Young (See above for address) ATTORNEY TO BE NOTICED

Lawrence Joseph Greger (See above for address) ATTORNEY TO BE NOTICED

Intervenor Plaintiff Gerald Robert Hand

represented by Jennifer M Kinsley Sirkin Kinsley &Nazzarine 810 Sycamore Street, Second Floor Cincinnati, OH 45202 513−721−4876 Fax: 513−721−0876 Email: jennifer@sirkinkinsley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Governor Robert Taft Governor of the State of Ohio TERMINATED: 02/07/2011

represented by Charles L Wille Office of the Ohio Attorney General Criminal Justice Section Capital Crimes Unit 150 E. Gay St., 16th Floor Columbus, OH 43215 614−728−7055 Fax: 614−728−8600 Email: charles.wille@ohioattorneygeneral.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Michael Van Ho Office of the Ohio Attorney General Criminal Justice Section Capital Crimes Unit 216 W. Superior Ave., 11th Floor Cleveland, OH 44113 216−787−3030 Fax: 216−787−3480 Email: adam.vanho@ohioattorneygeneral.gov TERMINATED: 01/26/2011
Brian J Laliberte

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 18 of 114
Axelrod Laliberte LLC 137 E. State Street Columbus, OH 43215 614−546−6312 Fax: 614−545−6356 Email: brian@axelrodohio.com TERMINATED: 01/08/2008
Carol Ann Ellensohn Ohio Board of Nursing Compliance 17 South High Street, Suite 400 Columbus, OH 43215−7410 614−466−1264 Email: cellensohn@nursing.ohio.gov TERMINATED: 12/06/2007
Heather L Gosselin Assistant Attorney General State Office Tower 30 E. Broad St., 26th Floor Columbus, OH 43215−3428 614/728/7055 Email: hgosselin@ag.state.oh.us TERMINATED: 06/13/2007
J Eric Holloway Ohio Attorney General's Office Bureau of Criminal Identification and Investigation 1560 SR 56, SW London, OH 43140 740−845−2000 Fax: 866−459−6675 Email: Eric.Holloway@ohioattorneygeneral.gov TERMINATED: 01/26/2011 ATTORNEY TO BE NOTICED
Janet R Hill Arbogast Columbus City Attorney Civil Division 90 W. Broad St. Room 200 Columbus, OH 43215 614−645−7385 Fax: 614−645−6949 Email: jrhillarbogast@columbus.gov TERMINATED: 01/15/2008
Justin M Lovett Office of the Ohio Attorney General Criminal Justice Section Capital Crimes Unit 150 East Gay Street, 16th Floor Columbus, OH 43215 614−728−7055 Fax: 614−728−8600 Email: justin.lovett@ohioattorneygeneral.gov ATTORNEY TO BE NOTICED
Kelley Ann Sweeney Ohio Attorney General − 2 615 W Superior Avenue 11th Floor Cleveland, OH 44113−1899

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 19 of 114

216−787−3030 Fax: 216−787−3480 Email: ksweeney@ag.state.oh.us TERMINATED: 06/13/2007

Lisa M Eschbacher Ohio Attorney General's Office Health and Human Services Section 30 East Broad Street, 26th Floor Columbus, OH 43215 (614) 466−8600 Fax: (614) 466−6090 Email: Lisa.Eschbacher@ohioattorneygeneral.gov TERMINATED: 07/22/2008

Marianne Pressman 9209 Elizabeth Mason, OH 45040 513−531−3441 Email: mpressman@cinci.rr.com TERMINATED: 06/13/2007

Matthew A Kanai Office of the Ohio Attorney General Criminal Justice Section Capital Crimes Unit 150 E. Gay St., 16th Floor Columbus, OH 43215 614−728−7055 Fax: 614−728−8600 Email: matthew.kanai@ohioattorneygeneral.gov TERMINATED: 02/19/2010

Michael L Collyer Assistant Attorney General 615 W Superior Avenue 11th Floor Cleveland, OH 44113 216−787−3030 Fax: 216−787−3480 Email: mcollyer@ag.state.oh.us TERMINATED: 05/15/2007

Thomas E Madden Office of the Ohio Attorney General Criminal Justice Section Capital Crimes Unit 150 E. Gay St., 16th Floor Columbus, OH 43215 614−728−7055 Fax: 614−728−8600 Email: thomas.madden@ohioattorneygeneral.gov ATTORNEY TO BE NOTICED

Defendant
Director Reginald Wilkinson Director Ohio Department of Rehabilitation and Correction

represented by Charles L Wille (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam Michael Van Ho (See above for address) TERMINATED: 01/26/2011

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 20 of 114

Brian J Laliberte (See above for address) TERMINATED: 01/08/2008

Carol Ann Ellensohn (See above for address) TERMINATED: 12/06/2007

Heather L Gosselin (See above for address) TERMINATED: 06/13/2007

Janet R Hill Arbogast Ohio Attorney General − 2 150 East Gay Street 16 Floor Columbus, OH 43215 614−644−7233 Fax: 614−728−9327 Email: jarbogast@ag.state.oh.us TERMINATED: 01/15/2008

Justin M Lovett (See above for address) ATTORNEY TO BE NOTICED

Kelley Ann Sweeney (See above for address) TERMINATED: 06/13/2007

Lisa M Eschbacher (See above for address) TERMINATED: 07/22/2008

Marianne Pressman (See above for address) TERMINATED: 06/13/2007

Matthew A Kanai (See above for address) TERMINATED: 02/19/2010

Michael L Collyer (See above for address) TERMINATED: 05/15/2007

Thomas E Madden (See above for address) ATTORNEY TO BE NOTICED

Defendant
James Haviland Warden Southern Ohio Correctional Facility

represented by Charles L Wille (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam Michael Van Ho (See above for address) TERMINATED: 01/26/2011

Brian J Laliberte (See above for address) TERMINATED: 01/08/2008

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 21 of 114

Carol Ann Ellensohn (See above for address) TERMINATED: 12/06/2007

Heather L Gosselin (See above for address) TERMINATED: 06/13/2007

J Eric Holloway (See above for address) TERMINATED: 01/26/2011 ATTORNEY TO BE NOTICED

Janet R Hill Arbogast (See above for address) TERMINATED: 01/15/2008

Justin M Lovett (See above for address) ATTORNEY TO BE NOTICED

Kelley Ann Sweeney (See above for address) TERMINATED: 06/13/2007

Lisa M Eschbacher (See above for address) TERMINATED: 07/22/2008

Marianne Pressman (See above for address) TERMINATED: 06/13/2007

Matthew A Kanai (See above for address) TERMINATED: 02/19/2010

Michael L Collyer (See above for address) TERMINATED: 05/15/2007

Thomas E Madden (See above for address) ATTORNEY TO BE NOTICED

Defendant
Director Terry Collins Ohio Department of Rehabilitation and Correction TERMINATED: 02/07/2011

represented by Charles L Wille (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam Michael Van Ho (See above for address) TERMINATED: 01/26/2011

Brian J Laliberte (See above for address) TERMINATED: 01/08/2008

Carol Ann Ellensohn (See above for address) TERMINATED: 12/06/2007

Heather L Gosselin

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 22 of 114

(See above for address) TERMINATED: 06/13/2007

J Eric Holloway (See above for address) TERMINATED: 01/26/2011 ATTORNEY TO BE NOTICED

Janet R Hill Arbogast (See above for address) TERMINATED: 01/15/2008

Justin M Lovett (See above for address) ATTORNEY TO BE NOTICED

Lisa M Eschbacher (See above for address) TERMINATED: 07/22/2008

Marianne Pressman (See above for address) TERMINATED: 06/13/2007

Matthew A Kanai (See above for address) TERMINATED: 02/19/2010

Michael L Collyer (See above for address) TERMINATED: 05/15/2007

Thomas E Madden (See above for address) ATTORNEY TO BE NOTICED

Defendant
Warden Edwin Voorhies Southern Ohio Correctional Facility

represented by Charles L Wille (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam Michael Van Ho (See above for address) TERMINATED: 01/26/2011

Brian J Laliberte (See above for address) TERMINATED: 01/08/2008

Carol Ann Ellensohn (See above for address) TERMINATED: 12/06/2007

Heather L Gosselin (See above for address) TERMINATED: 06/13/2007

J Eric Holloway (See above for address) TERMINATED: 01/26/2011 ATTORNEY TO BE NOTICED

Janet R Hill Arbogast

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 23 of 114

(See above for address) TERMINATED: 01/15/2008

Justin M Lovett (See above for address) ATTORNEY TO BE NOTICED

Lisa M Eschbacher (See above for address) TERMINATED: 07/22/2008

Marianne Pressman (See above for address) TERMINATED: 06/13/2007

Matthew A Kanai (See above for address) TERMINATED: 02/19/2010

Michael L Collyer (See above for address) TERMINATED: 05/15/2007

Thomas E Madden (See above for address) ATTORNEY TO BE NOTICED

Defendant
John Kasich Governor of Ohio

represented by Charles L Wille (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas E Madden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Justin M Lovett (See above for address) ATTORNEY TO BE NOTICED

Defendant
Gary Mohr Director of ODRC

represented by Charles L Wille (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas E Madden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Justin M Lovett (See above for address) ATTORNEY TO BE NOTICED

Defendant
Donald Morgan Warden of SOCF

represented by Charles L Wille (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 24 of 114
Thomas E Madden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin M Lovett (See above for address) ATTORNEY TO BE NOTICED

Date Filed 12/08/2004 12/08/2004
12/09/2004
12/13/2004 12/13/2004 12/13/2004 12/17/2004 12/28/2004 01/04/2005
01/05/2005
01/10/2005 01/10/2005 01/10/2005 01/14/2005
01/25/2005
03/09/2005 03/28/2005 03/28/2005

# Docket Text
1 MOTION filed by Plaintiff Richard Cooey for Leave to Proceed in forma pauperis. (dms) (Entered: 12/08/2004)
2 COMPLAINT filed by Plaintiff Richard Cooey against Defendants Robert Taft, Reginald Wilkinson, and James Haviland. (Attachments: # 1 Exhibits to Complaint)(dms ) (Entered: 12/08/2004)
3 ORDER granting 1 Motion for Leave to Proceed in forma pauperis. Plaintiff is required to pay the full amount of the Court's $150 filing fee. It is ORDERED that the US Marshal is to serve each Defendant. Each Defendant is ORDERED to respond to the Complaint within 45 days after being served. Signed by Judge Mark R. Abel on 12/8/04. (dms ) (Entered: 12/09/2004)
4 Summons Issued as to James Haviland. (dms ) (Entered: 12/14/2004)
5 Summons Issued as to Reginald Wilkinson. (dms ) (Entered: 12/14/2004)
6 Summons Issued as to Robert Taft. (dms ) (Entered: 12/14/2004)
Filing fee: $ 13.56, receipt number 200 244563. (dms) (Entered: 12/20/2004)
7 SUMMONS Returned Executed Robert Taft served on 12/15/2004, answer due 1/4/2005. (dms ). (Entered: 12/29/2004)
8 MOTION to Dismiss by Defendants Robert Taft, Reginald Wilkinson, James Haviland. Responses due by 1/28/2005 (Attachments: # 1 Exhibit Cooey's Federal Habeas Petition# 2 Exhibit Dennis v. Taft Order# 3 Exhibit Buffalo News Article)(Collyer, Michael) (Entered: 01/04/2005)
9 ORDER re 8 MOTION to Dismiss filed by Reginald Wilkinson,, James Haviland, &Robert Taft; Non−oral hearing on said motion set for 2/24/2005. Signed by Judge Gregory L Frost on 1/5/05. (sem, ) (Entered: 01/05/2005)
10 SUMMONS Returned Executed Reginald Wilkinson served on 12/15/2004, answer due 1/4/2005. (dms ). (Entered: 01/11/2005)
11 SUMMONS Returned Executed James Haviland served on 12/20/2004, answer due 1/10/2005. (dms ) . (Entered: 01/11/2005)
Filing fee: $ 8.16, receipt number 200 244810 (dms ) (Entered: 01/11/2005)
12 RESPONSE in Opposition re 8 MOTION to Dismiss filed by Plaintiff Richard Cooey. (Attachments: # 1 Exhibit A − 10/16/04 Opinion &Order# 2 Exhibit B − Order Denying Prelim Inj# 3 Exhibit B− Appendix to Order)(Culshaw, Kelly). (Entered: 01/14/2005)
13 REPLY to Response to Motion re 8 MOTION to Dismiss filed by Defendants Robert Taft, Reginald Wilkinson, James Haviland. (Collyer, Michael) (Entered: 01/25/2005)
Filing fee: $ 11.60, receipt number 200 245695. (dms ) (Entered: 03/11/2005)
14 ORDER denying 8 Defendants' Motion to Dismiss . Signed by Judge Gregory L Frost on 3/28/05. (sem, ) (Entered: 03/28/2005)
Minute Entry for proceedings held before Judge Gregory L Frost : Status Conference held on 3/28/2005. (statistical purposes (ksh, ) . (Entered: 03/28/2005)

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03/28/2005
03/30/2005 04/04/2005 04/04/2005
04/06/2005 04/11/2005 04/12/2005 04/13/2005
05/11/2005 06/15/2005 07/14/2005 08/26/2005
09/06/2005 09/07/2005 10/07/2005 11/07/2005 11/23/2005 11/23/2005 11/23/2005
11/23/2005

15 SCHEDULING ORDER: Discovery due by 5/6/2005. Dispositive Motions due by 5/27/2005. Trial to the Court set for 8/1/2005 09:00 AM in Courtroom 4 before Gregory L Frost. Non−oral hearing on dispositive motions set for 6/24/2005. Final Pretrial Conference set for 7/26/2005 12:00 PM in chambers before Gregory L Frost.. Signed by Judge Gregory L Frost on 3/28/05. (sem, ). (Entered: 03/28/2005)
16 MOTION for Certificate of Appealability by Defendants Robert Taft, Reginald Wilkinson, James Haviland. (Sweeney, Kelley) (Entered: 03/30/2005)
17 RESPONSE in Opposition re 16 MOTION for Certificate of Appealability filed by Plaintiff Richard Cooey. (Culshaw, Kelly) (Entered: 04/04/2005)
18 First MOTION for Order to Plaintiff's Motion For Discovery Orders Consistent With This Court's Scheduling Order by Plaintiff Richard Cooey. (Attachments: # 1 Exhibit Plaintiff's First Request For Production Of Documents# 2 Exhibit Plaintiff's First Request To Enter Upon Land And Property For Inspection And Other Purposes)(Meyers, Gregory) (Entered: 04/04/2005)
19 REPLY in Support re 16 MOTION for Certificate of Appealability filed by Defendants Robert Taft, Reginald Wilkinson, James Haviland. (Collyer, Michael) (Entered: 04/06/2005)
20 ANSWER to Complaint with Jury Demand by Defendants Robert Taft, Reginald Wilkinson, James Haviland.(Sweeney, Kelley) (Entered: 04/11/2005)
Filing fee: $ 8.60, receipt number 200 246170 (dms ) (Entered: 04/13/2005)
21 ORDER granting in part and denying in part 16 Defendants' Motion to certify an interlocutory appeal and denying as moot 18 Plaintiff's Motion for Discovery; These proceedings are hereby STAYED pending the outcome of the interlocutory appeal . Signed by Judge Gregory L Frost on 4/13/05. (sem, ) (Entered: 04/13/2005)
Filing fee: $ 10.60, receipt number 200 246562. (dms ) (Entered: 05/12/2005)
Filing fee: $ 7.10, receipt number 247021 (jk) (Entered: 06/16/2005)
Filing fee: $ 23.20, receipt number 247428 (jk) (Entered: 07/14/2005)
22 USCA ORDER − It is ORDERED that the petition for permission to appeal is GRANTED and the matter is hereby transferred to the general docket of the court and assigned docket number 05−4057. Signed by Circuit Judges Suhrheinrich, Siler and Gilman on 08/24/05. (lg) (Entered: 08/26/2005)
Filing fee for appeal USCA case no 05−4057: $ 255, receipt number 248089 (lg) (Entered: 09/06/2005)
Filing fee: $ 22.16, receipt number 248108 (jk) (Entered: 09/07/2005)
Filing fee: $ 17.38, receipt number 248573 (jk) (Entered: 10/07/2005)
Filing fee: $ 23.96, receipt number 200 248926 (jr) (Entered: 11/08/2005)
23 EMERGENCY MOTION to Intervene filed by Movant John R Hicks. (sem, ) (Entered: 11/23/2005)
24 MOTION for Temporary Restraining Order and MOTION for Preliminary Injunction to Stay his Execution filed by Movant John R Hicks. (sem, ) (Entered: 11/23/2005)
25 Amended MOTION to Amend/Correct Plaintiff−Intervenor's Motion for A Temporary Restraining Order and Preliminary Injunction to Stay His Execution Pending Adjudication of 42 USC Sec. 1983 Claims Challenging Defendants' Cruel and Unusual Execution Procedures by Movant John R Hicks. (Mezibov, Marc) (Entered: 11/23/2005)
26 ORDER granting 23 Movant John R. Hicks's Motion to Intervene and denying 24 Motion for Temporary Restraining Order . Signed by Judge Gregory L Frost on 11/23/05. (Attachments: # 1 Exhibit 9/16/04 Decision in Dennis v. Taft) (sem, ) (Entered: 11/23/2005)

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11/23/2005 11/23/2005 11/25/2005 12/11/2005 12/13/2005
12/16/2005 12/16/2005 12/23/2005
01/04/2006 01/09/2006 01/09/2006 04/14/2006 04/18/2006
04/21/2006
04/24/2006 04/25/2006 04/25/2006

28 NOTICE OF APPEAL as to 26 Order on Motion to Intervene, Order on Motion for TRO, Order on Motion to Amend/Correct by Intervenor Plaintiff John R Hicks. Filing fee $ 255. (Mezibov, Marc) (Entered: 11/23/2005)
27 Intervenor COMPLAINT filed by Intervenor Plaintiff John R Hicks against Defendants Robert Taft, Reginald Wilkinson, James Haviland.(sem, ) (Entered: 11/28/2005)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 27 Notice of Appeal (jr) (Entered: 11/25/2005)
29 Emergency MOTION to Intervene as a Plaintiff. (Attachments: # 1 Exhibit Claims being litigated)(Crim, Gary) (Entered: 12/11/2005)
30 ORDER re 29 Emergency MOTION to Intervene as a Plaintiff filed by Jeffrey D Hill; Defendants' shall file any memorandum in opposition by 12/23/05; Non−oral hearing on said motion set for 12/27/2005. Signed by Judge Gregory L Frost on 12/13/05. (sem, ) (Entered: 12/13/2005)
31 USCA INFORMATION COPY re 28 Notice of Appeal: The request for a stay of execution is DENIED. (jr) (Entered: 12/19/2005)
32 USCA JUDGMENT as to 28 Notice of Appeal filed by John R Hicks, it is ORDERED that the request for a stay of execution is DENIED. (jr) (Entered: 12/19/2005)
33 RESPONSE in Opposition re 29 Emergency MOTION to Intervene as a Plaintiff filed by Defendants Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 Exhibit unreported case# 2 Exhibit unreported case# 3 Exhibit unreported case)(Sweeney, Kelley) (Entered: 12/23/2005)
34 ORDER dismissing Intervenor Plaintiff John R. Hicks as a party to this litigation. Signed by Judge Gregory L Frost on 1/4/06. (sem, ) (Entered: 01/04/2006)
35 ORDER granting 29 Jeffrey D. Hill's Emergency Motion to Intervene; The Clerk shall detach the proferred complaint and file said pleading . Signed by Judge Gregory L Frost on 1/29/06. (sem, ) (Entered: 01/09/2006)
36 Intervenor COMPLAINT filed by Intervenor Plaintiff Jeffrey D Hill against Defendants Robert Taft, Reginald Wilkinson &James Haviland.(sem, ) (Entered: 01/09/2006)
37 Emergency MOTION for Preliminary Injunction by Intervenor Plaintiff Jeffrey D Hill. (Attachments: # 1 Appendix Unreported decision, Brown v. Beck)(Crim, Gary) (Entered: 04/14/2006)
38 ORDER re 37 Emergency MOTION for Preliminary Injunction filed by Jeffrey D Hill; Defendants shall have until 4/21/06 to any memorandum in opposition to said motion; Plaintiff Hill shall have until 4/26/06 to file any reply; An Informal Preliminary Conference is set for 4/28/2006 09:00 AM in teleconference before Gregory L Frost (Plaintiff Hill's counsel shall initiate the call). Signed by Judge Gregory L Frost on 4/18/06. (sem1, ) (Entered: 04/18/2006)
39 RESPONSE in Opposition re 37 Emergency MOTION for Preliminary Injunction filed by Defendants Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 Order Denying Dennis Injunction# 2 Order Re Hicks Intervention and Injunction# 3 Morales v. Hickman# 4 Brown v. Beck# 5 Affidavit of Dr. Dershwitz# 6 Affidavit of Dr. Rosow)(Collyer, Michael) (Entered: 04/21/2006)
40 MOTION to Participate in Preliminary Conference re 38 Order, Set Hearings,, by Plaintiff Richard Cooey. (Culshaw, Kelly) (Entered: 04/24/2006)
41 ORDER granting 40 Plaintiff Cooey's Motion to Participate in the 4/28/06 Telephone Status Conference . Signed by Judge Gregory L Frost on 4/25/06. (sem, ) (Entered: 04/25/2006)
42 REPLY in Support re 37 Emergency MOTION for Preliminary Injunction filed by Intervenor Plaintiff Jeffrey D Hill. (Attachments: # 1 Appendix Docket from

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04/28/2006 04/28/2006
04/28/2006
04/28/2006
05/26/2006 05/26/2006 05/30/2006 05/30/2006
06/02/2006 06/02/2006 06/08/2006 06/09/2006 06/16/2006 06/16/2006 06/16/2006 06/19/2006

Distirct Court, Western District of Missouri# 2 Appendix Decision of Eigth Circuit in Government Appeal# 3 Appendix Docket from Eigjth Circuit, Plaintiff's Appeal)(Crim, Gary) (Entered: 04/25/2006)
Minute Entry for proceedings held before Judge Gregory L Frost : Status Conference held on 4/28/2006. (statistical purposes only) (ksh, ) (Entered: 04/28/2006)
43 NOTICE by Defendant Robert Taft re 39 Response in Opposition to Motion, Supplemental Authority (Attachments: # 1 Fourth Circuit Decision Affirming Dismissal of Case and Denial of Stay in Vinson v. Johnson 4−25−06# 2 Supreme Court Denial of Stay in Vinson v. Johnson 4−27−06)(Collyer, Michael) (Entered: 04/28/2006)
44 Supplemental Memorandum Supporting re 37 Emergency MOTION for Preliminary Injunction Notice of Additional Authority filed by Intervenor Plaintiffs Jeffrey D Hill, Jeffrey D Hill. (Attachments: # 1 Supplement Docket from Distirct Court, Eastern District of Virginia)(Crim, Gary) (Entered: 04/28/2006)
45 ORDER granting 37 Plaintiff Hill's Motion for an Emergency Preliminary Injunction; 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 . Signed by Judge Gregory L Frost on 4/28/06. (sem, ) (Entered: 04/28/2006)
46 MOTION to Intervene filed by Johnnie Baston. (Attachments: # 1 Exhibit Proposed Complaint)(Timken, Kyle) (Entered: 05/26/2006)
47 Emergency MOTION to Intervene filed by Arthur Tyler. (Kerger, Richard) (Entered: 05/26/2006)
48 MOTION to Intervene (Corrected) by Intervenor Plaintiff Arthur Tyler. (Kerger, Richard) (Entered: 05/30/2006)
49 ORDER re 46 MOTION to Intervene filed by Johnnie Baston and 48 MOTION to Intervene (Corrected) filed by Arthur Tyler; Defendants shall file any memoranda in opposition by 6/5/06; Movants Baston and Tyler shall file any reply memoranda by 6/9/06; Non−oral hearing on said motions set for 6/12/2006. Signed by Judge Gregory L Frost on 5/30/06. (sem, ) (Entered: 05/30/2006)
50 RESPONSE in Opposition re 46 MOTION to Intervene by Johnnie Baston filed by Defendants Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 Santos v. Camacho)(Collyer, Michael) (Entered: 06/02/2006)
51 RESPONSE in Opposition re 48 MOTION to Intervene (Corrected) by Arthur Tyler filed by Defendants Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 Santos v. Camacho)(Collyer, Michael) (Entered: 06/02/2006)
52 REPLY to Response to Motion re 48 MOTION to Intervene (Corrected) filed by Intervenor Plaintiff Arthur Tyler. (Kerger, Richard) (Entered: 06/08/2006)
53 REPLY to Response to Motion re 46 MOTION to Intervene filed by Intervenor Plaintiff Johnnie Baston. (Prude−Smithers, Pamela) (Entered: 06/09/2006)
54 ORDER granting 46 Baston's Motion to Intervene and granting 48 Tyler's Motion to Intervene . Signed by Judge Gregory L Frost on 6/16/06. (sem, ) (Entered: 06/16/2006)
55 Intervenor COMPLAINT filed by Intervenor Plaintiff Johnnie Baston against Defendants Robert Taft, Reginald Wilkinson, James Haviland.(sem, ) (Entered: 06/16/2006)
56 Intervenor COMPLAINT filed by Intervenor Plaintiff Arthur Tyler against Defendants Robert Taft, Reginald Wilkinson, James Haviland.(sem, ) (Entered: 06/16/2006)
57 NOTICE of Appearance by Kathryn L Sandford for Intervenor Plaintiff Arthur Tyler (Sandford, Kathryn) (Entered: 06/19/2006)

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07/31/2006 08/08/2006 08/21/2006 08/22/2006 08/28/2006 08/31/2006
09/01/2006 09/01/2006 09/05/2006 09/05/2006 09/08/2006
09/08/2006
09/08/2006 09/08/2006 09/14/2006 09/20/2006 09/20/2006 09/20/2006

58 NOTICE of Appearance by Heather L Gosselin Defendants Robert Taft, Reginald Wilkinson, James Haviland (Gosselin, Heather) (Entered: 07/31/2006)
59 NOTICE of Appearance by Heather L Gosselin of Defendants Robert Taft, Reginald Wilkinson, James Haviland (Gosselin, Heather) (Entered: 08/08/2006)
60 MOTION to Intervene by Intervenor Plaintiff Jerome Henderson. (Attachments: # 1 Exhibit A − B)(srj, ) (Entered: 08/21/2006)
61 ORDER re 60 MOTION to Intervene filed by Jerome Henderson; Non−oral hearing on said motion set for 10/13/2006. Signed by Judge Gregory L Frost on 8/22/06. (sem1, ) (Entered: 08/22/2006)
62 MOTION to Supplement the Pleadings by Intervenor Plaintiff Jerome Henderson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(jr) (Entered: 08/29/2006)
63 AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF filed by Intervenor Plaintiff Jerome Henderson against Terry Collins, Edwin Voorhies, Defendant Robert Taft. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(jr) (Entered: 09/01/2006)
64 MOTION for Leave to Appear pro hac vice for attorney James A. Jenkins by Intervenor Plaintiff Jeffrey Don Lundgren. Filing fee $ 50. (srj, ) (Entered: 09/01/2006)
65 EMERGENCY MOTION to Intervene by Intervenor Plaintiff Jeffrey Don Lundgren. (Attachments: # 1 Complaint for Injunctive and Declaratory Relief)(srj, ). (Entered: 09/01/2006)
66 NOTICE of Hearing: Telephone Conference set for 9/8/2006 11:00 AM before Gregory L Frost (the Court will initiate the call). (sem1, ) (Entered: 09/05/2006)
67 ORDER granting 64 Motion for Leave for James A. Jenkins to Appear pro hac vice on behalf of Jeffrey Don Lundgren. Signed by Judge Mark R. Abel on 9/5/06. (jr) (Entered: 09/05/2006)
68 RESPONSE in Opposition re 60 MOTION to Intervene by Jerome Henderson filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 Exhibit Chief Inspector Decision re Baston# 2 Exhibit Brown v. Beck# 3 Johnston v. Crawford# 4 Exhibit Doc. 35 − Order Granting Hill Intervention# 5 Exhibit Order Denying Motion to Dismiss)(Collyer, Michael) (Entered: 09/08/2006)
69 RESPONSE in Opposition re 65 MOTION to Intervene by Jeffrey Lundgren filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 Exhibit Chief Inspector's Decision re Baston# 2 Exhibit Doc. 35 − Order Granting Hill Intervention)(Collyer, Michael) (Entered: 09/08/2006)
70 SCHEDULING ORDER Non oral hearing on Motion to Intervene set for 9/15/2006 08:00 AM . Signed by Judge Gregory L Frost on 9/8/06. (ksh, ) (Entered: 09/08/2006)
Minute Entry for proceedings held before Judge Gregory L Frost : Status Conference held on 9/8/2006. (statistical purposes only) (ksh, ) (Entered: 09/08/2006)
71 REPLY to Response to Motion re 65 MOTION to Intervene filed by Intervenor Plaintiff Jeffrey Don Lundgren. (jr) (Entered: 09/15/2006)
72 NOTICE of Appearance by David Clark Stebbins for Intervenor Plaintiff Jerome Henderson (Stebbins, David) (Entered: 09/20/2006)
73 ORDER denying without prejudice the 65 Emergency Motion to Intervene filed Jeffrey Lundgren . Signed by Judge Gregory L Frost on 9/20/06. (sem1, ) (Entered: 09/20/2006)
74 Certificate of Good Standing filed by James Allen Jenkins, per doc 67 Order on Motion for Leave to Appear Pro Hac Vice. (kch) (Entered: 09/20/2006)

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09/25/2006 09/25/2006 09/27/2006 09/27/2006 10/02/2006 10/03/2006 10/04/2006 10/04/2006 10/05/2006 10/05/2006
10/05/2006 10/05/2006 10/05/2006 10/10/2006 10/10/2006 10/11/2006

75 MOTION to Appoint Counsel by Intervenor Plaintiff Jerome Henderson. (Attachments: # 1 Exhibit I)(jr) (Entered: 09/26/2006)
76 REPLY to Response to Motion re 60 MOTION to Intervene filed by Intervenor Plaintiff Jerome Henderson. (Attachments: # 1 Exhibit D, # 2 Exhibit E, # 3 Exhibit F, # 4 Exhibit G, # 5 Exhibit H)(jr) (Entered: 09/26/2006)
77 ORDER re 75 MOTION to Appoint Counsel filed by Jerome Henderson; The Court DIRECTS Henderson, within 15 days of the date of this order, to notify this Court whether he is willing to allow Mr. Stebbins to represent him in this matter . Signed by Judge Gregory L Frost on 9/27/06. (sem1, ) (Entered: 09/27/2006)
78 MOTION to supplement the pleadings by Intervenor Plaintiff Jerome Henderson. (Attachments: # 1 Exhibit H # 2 Exhibit I # 3 Exhibit J)(sr) (Entered: 09/28/2006)
79 MOTION in Opposition to Entry of Appearance of Counsel David C. Stebbins of Columbus, Ohio by Intervenor Plaintiff Jerome Henderson. (Attachments: # 1 Exhibit K, # 2 Exhibit L, # 3 Exhibit M, # 4 Exhibit N, # 5 Exhibit O)(jr) (Entered: 10/03/2006)
80 Emergency MOTION for Preliminary Injunction to Stay Execution by Intervenor Plaintiff Jeffrey Don Lundgren. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit)(Jenkins, James) (Entered: 10/03/2006)
81 MOTION to Amend/Correct Emergency Motion to Intervene by Intervenor Plaintiff Jeffrey Don Lundgren. (Attachments: # 1 # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit # 7 Exhibit)(Jenkins, James) (Entered: 10/04/2006)
82 Emergency MOTION for Preliminary Injunction to Stay Execution by Intervenor Plaintiff Jeffrey Don Lundgren. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit)(Jenkins, James) (Entered: 10/04/2006)
Minute Entry for proceedings held before Judge Gregory L Frost : Telephone Conference held on 10/5/2006 (docketed for statistical purposes only). (sem1, ) (Entered: 10/05/2006)
83 ORDER memorializing the 10/5/06 Status Conference; Lundgren's New Motion to Intervene and his New Motion for Injunctive Relief to Stay shall be filed by 10/5/06; Defendants' Memorandum in Opposition to said motions shall be filed by 10/11/06; Lundgren's Reply in Support of said motions shall be filed by 10/13/06. Signed by Judge Gregory L Frost on 10/5/06. (sem1, ) (Entered: 10/05/2006)
84 Emergency Motion for a Preliminary Injunction to Stay Execution by Intervenor Plaintiff Jeffrey Don Lundgren. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit # 7 Exhibit)(Jenkins, James) (Entered: 10/05/2006)
85 Second MOTION to Amend/Correct Emergency Motion to Intervene by Intervenor Plaintiff Jeffrey Don Lundgren. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit # 7 Exhibit # 8)(Jenkins, James) (Entered: 10/05/2006)
86 ORDER denying as moot 80 Emergency Motion for Preliminary Injunction, denying without prejudice 81 Emergency Motion to Intervene and denying without prejudice 82 Emergency Motion for Preliminary Injunction . Signed by Judge Gregory L Frost on 10/5/06. (sem1, ) (Entered: 10/05/2006)
87 NOTICE by Intervenor Plaintiff Jerome Henderson re 77 Order. (jr) (Entered: 10/11/2006)
88 MOTION in Request that Administrative Remedies Be Deemed Exhausted When Prison Officials Fail to Respond by Intervenor Plaintiff Jerome Henderson. (jr) (Entered: 10/11/2006)
89 RESPONSE in Opposition re 85 Second MOTION to Amend/Correct Emergency Motion to Intervene by Jeffrey Lundgren filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 Unreported Case)(Collyer, Michael) (Entered: 10/11/2006)

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10/11/2006
10/13/2006 10/17/2006
10/17/2006 10/18/2006 10/18/2006
10/18/2006 10/19/2006 10/20/2006 10/23/2006 10/24/2006 10/24/2006 10/24/2006
10/24/2006

90 RESPONSE in Opposition re 84 MOTION to Amend/Correct Emergency Motion for a Preliminary Injunction to Stay Execution of Jeffrey Lundgren filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 Hill v. McDonough# 2 Order 4/28/06# 3 Order 9/16/04# 4 Order 11/23/05# 5 Brown v. Beck# 6 Dershwitz Affidavit# 7 Rosow Affidavit)(Collyer, Michael) (Entered: 10/11/2006)
91 REPLY to Defendants' Response to their 85 Emergency Motion to Intervene filed by Intervenor Plaintiff Jeffrey Don Lundgren. (Jenkins, James) (Entered: 10/13/2006)
92 ORDER granting 84 Lundgren's Amended Emergency Motion for a Preliminary Injunction and granting 85 Lundgren's Amended Emergency Motion to Intervene. 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. Signed by Judge Gregory L Frost on 10/17/06. (Attachments: # 1 copy of 4/28/06 Order) (sem1, ) (Entered: 10/17/2006)
93 Intervenor COMPLAINT, per this Court's 10/17/06 Order, filed by Intervenor Plaintiff Jeffrey Don Lundgren, Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland.(sem1, ) (Entered: 10/18/2006)
94 NOTICE OF APPEAL as to 92 10/17/06 Opinion and Order filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. Filing fee $ 455. (Attachments: # 1 Opinion and Order# 2 Attachment to Opinion and Order)(Collyer, Michael) (Entered: 10/18/2006)
95 MOTION to Intervene in this Action as Plaintiff−Intervenor filed by Kenneth Biros. (Attachments: # 1 Exhibit A: Proposed Complaint# 2 Exhibit A−1: Grievance of 9/10/06# 3 Exhibit A−2: Grievance of 9/12/06# 4 Exhibit A−3: Letter to Director Collins of 09/10/06# 5 Exhibit A−4: Letter from Chief Inspector of 09/18/06# 6 Exhibit A−5: Letter from Chief Inspector of 10/12/06# 7 Exhibit A−6: DRC Execution Protocol effective 7/10/06)(Sweeney, Timothy) (Entered: 10/18/2006)
Filing fee: $ 455, receipt number 253486 (notice of appeal 94 ) (jr) (Entered: 10/19/2006)
96 NOTICE re Representation by Intervenor Plaintiff Jerome Henderson (jr) (Entered: 10/20/2006)
97 ORDER re 95 MOTION to Intervene in this Action as Plaintiff−Intervenor filed by Kenneth Biros; Non−oral hearing on said motion set for 12/6/2006. Signed by Judge Gregory L Frost on 10/20/06. (sem1, ) (Entered: 10/20/2006)
98 NOTICE of Appearance by Carol Ann Wright for Intervenor Plaintiff Jerome Henderson (Wright, Carol) (Entered: 10/23/2006)
99 ORDER granting 75 Movant Henderson's Motion to Appoint Counsel and the Court hereby appoints Carol Ann Wright. The Court denies as moot 79 Henderson's Motion in Opposition to the entry of appearance by David C. Stebbins . Signed by Judge Gregory L Frost on 10/24/06. (sem1, ) (Entered: 10/24/2006)
100 ORDER denying without prejudice 60 Movant Henderson's Emergency Motion to Intervene. The Court denies as moot all of Henderson's related Motions 62 78 88 . Signed by Judge Gregory L Frost on 10/24/06. (Attachments: # 1 9/20/06 Opinion and Order # 2 10/5/06 Opinion and Order) (sem1, ) (Entered: 10/24/2006)
101 MOTION to Expedite This Court's Ruling on Kenneth Biros's Pending Motion to Intervene in This Action, With Notice that the State of Ohio Has Today Moved in the Ohio Supreme Court to Set an Execution Date for Kenneth Biros by Intervenor Plaintiff Kenneth Biros. (Attachments: # 1 Exhibit A: State's Motion to Set Execution Date# 2 Exhibit B: Chief Inspector Denial dated 09/27/06)(Sweeney, Timothy) (Entered: 10/24/2006)
102 ORDER of USCA as to 94 Notice of Appeal, filed by Terry Collins, Reginald Wilkinson, James Haviland, Robert Taft, Edwin Voorhies. (jr) (Entered:

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10/24/2006 10/25/2006
10/25/2006 10/25/2006 10/25/2006 10/26/2006 10/26/2006 10/27/2006
10/27/2006 10/27/2006 10/30/2006
11/01/2006 11/01/2006 11/02/2006 11/03/2006

10/25/2006)
123 ORDER of USCA granting the Defendants' Motion to Vacate the Order of the District Court allowing Plaintiff Lundgren to intevene as well as granting a preliminary injunction (sem1, ) (Entered: 11/09/2006)
103 ORDER granting 101 Movant Biros's Motion to Expedite Ruling on his pending Motion to Intervene; Defendants shall file any memorandum in opposition to said Motion by 10/30/06; Movant Biros shall file any reply by 11/3/06; The Court resets the Motion to Intervene for a 11/8/06 non−oral hearing. Signed by Judge Gregory L Frost on 10/25/06. (sem1, ) (Entered: 10/25/2006)
Set Deadlines/Hearings: Non−oral hearing on Movant Biros's Motion to Intervene is reset for 11/8/2006. (sem1, ) (Entered: 10/25/2006)
104 Second MOTION to Intervene by Intervenor Plaintiff Jerome Henderson. (Attachments: # 1 Proposed Complaint# 2 Grievance# 3 Grievance# 4 Letter# 5 Letter# 6 DRC Execution Protocol)(Wright, Carol) (Entered: 10/25/2006)
107 ORDER of USCA as to 94 Notice of Appeal, filed by Terry Collins, Reginald Wilkinson, James Haviland, Robert Taft, Edwin Voorhies. (jr1) (Entered: 10/26/2006)
105 MOTION to Expedite Ruling on Second Emergency Motion to Intervene by Intervenor Plaintiff Jerome Henderson. (Wright, Carol) (Entered: 10/26/2006)
106 MOTION for Preliminary Injunction to Stay Execution by Intervenor Plaintiff Jerome Henderson. (Attachments: # 1 Exhibit A)(Wright, Carol) (Entered: 10/26/2006)
108 ORDER granting 105 Movant Henderson's Motion to Expedite Ruling on his pending Motion to Intervene; Defendants shall file any memoranda in opposition to said motion by 11/1/06; Henderson shall file any reply memoranda by 11/6/06; The Court sets a non−oral hearing on the pending motions for 11/8/06 . Signed by Judge Gregory L Frost on 10/27/06. (sem1, ) (Entered: 10/27/2006)
109 MOTION Supplement re 104 Second MOTION to Intervene by Intervenor Plaintiff Jerome Henderson. (Attachments: # 1 Exhibit A)(Wright, Carol) (Entered: 10/27/2006)
Minute Entry for proceedings held before Judge Gregory L Frost : Telephone Conference held on 10/27/2006 (docketed for statistical purposes only). (sem1, ) (Entered: 10/27/2006)
110 RESPONSE in Opposition re 95 MOTION to Intervene in this Action as Plaintiff−Intervenor filed by Kenneth Biros filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 Brown v Beck# 2 Johnston v Crawford# 3 Conn v Wilkinson)(Collyer, Michael) (Entered: 10/30/2006)
111 RESPONSE in Opposition re 104 Henderson's Second MOTION to Intervene filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 unreported case# 2 unreported case# 3 unreported case# 4 unreported case)(Collyer, Michael) (Entered: 11/01/2006)
112 RESPONSE in Opposition re 106 MOTION for Preliminary Injunction to Stay Execution for Henderson filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 unreported case# 2 unreported case)(Collyer, Michael) (Entered: 11/01/2006)
113 NOTICE by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland re 110 Response in Opposition to Motion, of Chief Inspector's Biros Decision (Attachments: # 1 Chief Inspector's Decision)(Collyer, Michael) (Entered: 11/02/2006)
114 Supplemental Memorandum Supporting re 95 MOTION to Intervene in this Action as Plaintiff−Intervenor filed by Kenneth Biros and (1) INCLUDING IN THE RECORD THE CHIEF INSPECTOR'S FORMAL WRITTEN DENIAL OF BIROS'S GRIEVANCE; AND (2) SUBMITTING WITH HIS MOTION TO INTERVENE A

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11/03/2006
11/06/2006
11/06/2006 11/06/2006 11/07/2006 11/07/2006 11/07/2006 11/08/2006
11/09/2006
11/09/2006 11/09/2006 11/09/2006 11/15/2006

REVISED PROFFERED INTERVENOR COMPLAINT (EXHIBIT A HERETO AND ITS EXHIBITS A−1 TO A−8) REFLECTING THE FORMAL DENIAL OF HIS GRIEVANCE by Intervenor Plaintiff Kenneth Biros. (Attachments: # 1 Exhibit A: Proffered Intervenor Complaint# 2 Exhibit A−1: Grievance# 3 Exhibit A−2: Grievance# 4 Exhibit A−3: Biros letter to T. Collins dated 09/10/06# 5 Exhibit A−4: Chief Inspector letter to Biros of 09/18/06# 6 Exhibit A−5: Chief Inspector letter to Biros of 10/12/06# 7 Exhibit A−6: Biros letter to Chief Inspector dated 10/18/06# 8 Exhibit A−7: Chief Inspector's decision of 10/30/06 denying Biros's grievance# 9 Exhibit A−8: DRC Execution Protocol# 10 Exhibit B: Chief Inspector's decision of 10/30/06 denying Biros's grievance)(Sweeney, Timothy) (Entered: 11/03/2006)
115 REPLY to Response to Motion re 95 MOTION to Intervene in this Action as Plaintiff−Intervenor filed by Kenneth Biros filed by Intervenor Plaintiff Kenneth Biros. (Attachments: # 1 Exhibit 1: Order of E.D. Mo. dated 06/22/05# 2 Exhibit 2: Hall's Motion to Intervene# 3 Exhibit 3: French's Motion to Intervene# 4 Exhibit 4: Order of E.D.N.C. dated 04/21/06)(Sweeney, Timothy) (Entered: 11/03/2006)
116 REPLY to Response to Motion re 106 MOTION for Preliminary Injunction to Stay Execution filed by Intervenor Plaintiff Jerome Henderson. (Attachments: # 1 Exhibit A−Motion to Set Date# 2 Exhibit B−Memo In Opposition# 3 Exhibit C−Sixth Circuit Order# 4 Exhibit D−Execution Order# 5 Exhibit E−Henderson v. Collins)(Wright, Carol) (Entered: 11/06/2006)
117 REPLY to Response to Motion re 104 Second MOTION to Intervene filed by Intervenor Plaintiff Jerome Henderson. (Attachments: # 1 Exhibit A−Judge Spiegel Order)(Wright, Carol) (Entered: 11/06/2006)
121 EMERGENCY MOTION for Preliminary Injunction by Intervenor Plaintiff Jerome Henderson. (jr) (Entered: 11/07/2006)
118 MOTION to Withdraw as Attorney by Intervenor Plaintiff Jerome Henderson. (Stebbins, David) (Entered: 11/07/2006)
119 MOTION to Intervene. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13 # 14)(Stebbins, David) (Entered: 11/07/2006)
120 MOTION for Preliminary Injunction by Intervenor Plaintiff John Spirko. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11)(Stebbins, David) (Entered: 11/07/2006)
122 ORDER re 119 MOTION to Intervene filed by John Spirko and 120 MOTION for Preliminary Injunction filed by John Spirko; Defendants' shall file any memoranda in opposition by 11/15/06; Movant Spirko shall file any reply memoranda by 11/20/06; Non−oral hearing on the Motion to Intervene is set for 11/21/2006. Signed by Judge Gregory L Frost on 11/8/06. (sem1, ) (Entered: 11/08/2006)
124 ORDER granting 104 Henderson's Motion to Intervene, denying 106 Motion for Preliminary Injunction, granting 109 Motion to Supplement, granting 118 Motion to Withdraw as Attorney by David Stebbins and striking 121 Henderson's Pro Se Motion for Preliminary Injunction . Signed by Judge Gregory L Frost on 11/9/06. (Attachments: # 1 4/28/06 Opinion and Order# 2 10/17/06 Opinion and Order) (sem1, ) (Entered: 11/09/2006)
125 Intervenor COMPLAINT filed (per the Court's 11/9/06 Order) by Intervenor Plaintiff Jerome Henderson against Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland.(sem1, ) (Entered: 11/09/2006)
126 ORDER granting 95 Biros's Motion to Intervene in this action . Signed by Judge Gregory L Frost on 11/9/06. (sem1, ) (Entered: 11/09/2006)
127 Intervenor COMPLAINT filed by Intervenor Plaintiff Kenneth Biros against Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland.(sem1, ) (Entered: 11/09/2006)
128 RESPONSE in Opposition re 119 MOTION to Intervene by John G. Spirko, Jr. filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 Johnston v. Crawford)(Collyer,

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11/15/2006
11/20/2006 11/20/2006 11/20/2006 11/20/2006 11/20/2006 11/20/2006 11/21/2006
11/21/2006 11/21/2006 11/21/2006 11/21/2006 11/22/2006 11/22/2006 11/26/2006 11/27/2006 11/28/2006
11/29/2006 12/04/2006 12/05/2006

Michael) (Entered: 11/15/2006)
129 RESPONSE in Opposition re 120 MOTION for Preliminary Injunction by John G. Spirko, Jr. filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 # 2)(Collyer, Michael) (Entered: 11/15/2006)
130 REPLY to Response to Motion re 119 MOTION to Intervene filed by Intervenor Plaintiff John Spirko. (Stebbins, David) (Entered: 11/20/2006)
131 REPLY to Response to Motion re 120 MOTION for Preliminary Injunction filed by Intervenor Plaintiff John Spirko. (Attachments: # 1 # 2 # 3 # 4 # 5)(Stebbins, David) (Entered: 11/20/2006)
132 First MOTION for Limited Admission Thomas Hill by Intervenor Plaintiff John Spirko. (Attachments: # 1)(Stebbins, David) (Entered: 11/20/2006)
133 Second MOTION for Limited Admission Alvin Dunn by Intervenor Plaintiff John Spirko. (Attachments: # 1)(Stebbins, David) (Entered: 11/20/2006)
134 Third MOTION for Limited Admission Allison Rousseau by Intervenor Plaintiff John Spirko. (Attachments: # 1)(Stebbins, David) (Entered: 11/20/2006)
135 Fourth MOTION for Limited Admission Ashley McDonald by Intervenor Plaintiff John Spirko. (Attachments: # 1)(Stebbins, David) (Entered: 11/20/2006)
136 ORDER granting 132 , 133 , 134 , &135 Motions for Admission of Thomas C. Hill, Alvin Dunn, Alison B. Rousseau, and Ashley McDonald pro hac vice to appear as counsel for Plaintiff/Intervenor John G. Spirko. Signed by Judge Mark R. Abel on 11/21/06. (jr) (Entered: 11/21/2006)
Filing fee: $ 50, receipt number 253931 (phv for Hill) (jr) (Entered: 11/22/2006)
Filing fee: $ 50, receipt number 253930 (phv for Rousseau) (jr) (Entered: 11/22/2006)
Filing fee: $ 50, receipt number 253929 (phv for McDonald) (jr) (Entered: 11/22/2006)
Filing fee: $ 50, receipt number 253928 (phv for Dunn) (jr) (Entered: 11/22/2006)
137 ORDER granting 119 Spirko's Motion to Intervene and denying 120 Spirko's Motion for Preliminary Injunction . Signed by Judge Gregory L Frost on 11/22/06. (Attachments: # 1 Hill Order# 2 Lundgren Order) (sem1, ) (Entered: 11/22/2006)
138 Intervenor COMPLAINT filed by Intervenor Plaintiff John Spirko against Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland.(sem1, ) (Entered: 11/22/2006)
139 MOTION for Leave to Proceed in forma pauperis by Intervenor Plaintiff Jerome Henderson. (Attachments: # 1 Affidavit)(Wright, Carol) (Entered: 11/26/2006)
140 ORDER granting 139 Plaintiff Intervenor Henderson's Motion for Leave to Proceed in forma pauperis on appeal. Signed by Judge Gregory L Frost on 11/27/06. (sem1, ) (Entered: 11/27/2006)
141 NOTICE OF APPEAL as to 124 Order on Motion to Intervene, Order on Motion for Preliminary Injunction, Order on Motion for Miscellaneous Relief, Order on Motion to Withdraw as Attorney, by Intervenor Plaintiff Jerome Henderson. (Wright, Carol) (Entered: 11/28/2006)
USCA Case Number 06−4527 for 141 Notice of Appeal filed by Jerome Henderson. (jr) (Entered: 11/29/2006)
142 ORDER of USCA as to 141 Notice of Appeal filed by Jerome Henderson: It is Ordered that the motion is Granted, and a stay of execution will issue. (jr) (Entered: 12/05/2006)
143 MOTION for Reconsideration re 137 Order on Motion to Intervene, Order on Motion for Preliminary Injunction by Intervenor Plaintiff John Spirko. (Dunn,

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12/05/2006
12/06/2006 12/07/2006
12/07/2006 12/12/2006
12/15/2006
12/20/2006 12/20/2006 12/21/2006 12/22/2006 12/26/2006 12/26/2006 12/28/2006 01/03/2007

Alvin) (Entered: 12/05/2006)
144 Emergency MOTION for Preliminary Injunction , or, at the Very Least, for an Order Under the All Writs Act Staying Biros's Execution By Defendants and the State of Ohio by Intervenor Plaintiff Kenneth Biros. (Attachments: # 1 Exhibit 1 (Biros's Memo in Opposition to State's Motion to Set Execution Date)# 2 Exhibit 2 (Biros's Notice to Ohio Supreme Court of His Intervention in This Action)# 3 Exhibit 3 (Order of Ohio Supreme Court dated 11/30/06 Setting Execution Date))(Sweeney, Timothy) (Entered: 12/05/2006)
145 ORDER denying 143 Petitioner Spirko's Motion for Reconsideration of the 11/22/06 Opinion and Order . Signed by Judge Gregory L Frost on 12/6/06. (sem1, ) (Entered: 12/06/2006)
146 ORDER re 144 Emergency MOTION for Preliminary Injunction , or, at the Very Least, for an Order Under the All Writs Act Staying Biros's Execution By Defendants and the State of Ohio filed by Kenneth Biros; Defendants' Memorandum in Opposition is due by 12/12/06; Biros's Reply shall be filed by 12/15/06; Non−oral hearing on said Motion set for 12/18/2006. Signed by Judge Gregory L Frost on 12/7/06. (sem1, ) (Entered: 12/07/2006)
147 NOTICE of Hearing: Telephone Conference set for 12/11/2006 10:00 AM before Gregory L Frost (The Court will initiate the call). (sem1, ) (Entered: 12/07/2006)
148 RESPONSE in Opposition re 144 Emergency MOTION for Preliminary Injunction , or, at the Very Least, for an Order Under the All Writs Act Staying Biros's Execution By Defendants and the State of Ohio filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 # 2 # 3)(Collyer, Michael) (Entered: 12/12/2006)
149 REPLY to Response to Motion re 144 Emergency MOTION for Preliminary Injunction , or, at the Very Least, for an Order Under the All Writs Act Staying Biros's Execution By Defendants and the State of Ohio filed by Intervenor Plaintiff Kenneth Biros. (Attachments: # 1 Exhibit 1 (ND CAL Docket)# 2 Exhibit 2 (9th Cir Docket)# 3 Exhibit 3 (News article, Gainesville Sun)# 4 Exhibit 4 (News article, Hartford Courant)# 5 Exhibit 5 (News Article, Miami Herald)# 6 Exhibit 6 (News article, St. Petersburg Times)# 7 Exhibit 7 (Aff of N. Dupree)# 8 Exhibit 8 (News article, New York Times)# 9 Exhibit 9 (N.D. Cal. Memo of Intended Decision)# 10 Exhibit 10 (Defendants' App to Vacate Stay))(Sweeney, Timothy) (Entered: 12/15/2006)
Filing fee for apppeal: $ 455.00, receipt number 254347. (kch) (Entered: 12/20/2006)
150 NOTICE OF APPEAL as to 137 Order on Motion to Intervene, Order on Motion for Preliminary Injunction by Intervenor Plaintiff John Spirko. Filing fee $ 455. (Dunn, Alvin) (Entered: 12/20/2006)
151 ORDER granting 144 Intervenor Plaintiff Biros's Emergency Motion for Preliminary Injunction; The Court hereby STAYS the execution of Intervenor Plaintiff Biros. Signed by Judge Gregory L Frost on 12/21/06. (sem1, ) Additional attachment(s) added on 12/21/2006 (sem1, ). (Entered: 12/21/2006)
152 NOTICE OF APPEAL as to 151 Order on Motion for Preliminary Injunction, by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. Filing fee $ 455. (Attachments: # 1 Doc. 151 − Biros Injunction Order)(Collyer, Michael) (Entered: 12/22/2006)
USCA Case Number 06−4660 for 152 Notice of Appeal. (er ) (Entered: 12/26/2006)
Filing fee: $ 455, receipt number 254378 (appeal 152 ) (jr) (Entered: 12/26/2006)
153 TRANSCRIPT REQUEST by Intervenor Plaintiff John Spirko re 150 Notice of Appeal (Dunn, Alvin) (Entered: 12/28/2006)
154 MOTION to Intervene as Plaintiff by Nicole Diar. (Attachments: # 1 Exhibit Proposed Complaint# 2 Exhibit Grievance Designation# 3 Exhibit Grievance

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 35 of 114

01/09/2007 01/17/2007 01/24/2007 01/30/2007 02/20/2007 02/20/2007 02/20/2007 02/20/2007 02/20/2007 02/20/2007 02/22/2007 03/06/2007 03/06/2007 03/14/2007
03/22/2007
04/07/2007 04/19/2007

Decision# 4 Exhibit DRC Execution Protocol)(Tkacz, Ruth) (Entered: 01/03/2007)
155 MOTION to Intervene filed by Clarence Carter (Attachments: # 1 Exhibit A − Proposed Complaint# 2 A−1# 3 A−2# 4 A−3# 5 A−4# 6 A−5)(Prucha, Linda) (Entered: 01/09/2007)
156 ORDER of USCA as to 152 Notice of Appeal, filed by Terry Collins, Reginald Wilkinson, James Haviland, Robert Taft, Edwin Voorhies. (jr) (Entered: 01/18/2007)
157 RESPONSE to Motion re 154 MOTION to Intervene as Plaintiff by Nicole Diar filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Gosselin, Heather) (Entered: 01/24/2007)
158 RESPONSE in Opposition re 155 MOTION to Intervene by Clarence Carter filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Collyer, Michael) (Entered: 01/30/2007)
159 MOTION to Expedite Ruling on His Motion to Intervene In this Action by Intervenor Plaintiff Clarence Carter. (Attachments: # 1 Exhibit A − Set Execution Date# 2 Exhibit B − Response)(Prucha, Linda) (Entered: 02/20/2007)
160 ORDER granting 155 Movant Clarence Carter's Motion to Intervene as Plaintiff−Intervenor . Signed by Judge Gregory L Frost on 2/20/07. (sem1, ) (Entered: 02/20/2007)
161 Intervenor COMPLAINT filed by Intervenor Plaintiff Clarence Carter against Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson and James Haviland. (Attachments: # 1 # 2 # 3 # 4 # 5)(sem1, ) (Entered: 02/20/2007)
162 ORDER granting 154 Movant Nicole Diar's Motion to Intervene as a Plaintiff−Intervenor . Signed by Judge Gregory L Frost on 2/20/07. (sem1, ) (Entered: 02/20/2007)
163 Intervenor COMPLAINT filed by Intervenor Plaintiff Nicole Diar against Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 # 2 # 3)(sem1, ) (Entered: 02/20/2007)
164 MOTION to Intervene by Intervenor Plaintiff Mark W Wiles. (Attachments: # 1 Exhibit)(jr) Additional attachment(s) added on 2/22/2007 (sem1, ). (Entered: 02/21/2007)
Notice of Correction re 164 Wiles's MOTION to Intervene: Per Judge Frost's instructions, document # 165 was deleted and attached to the Motion to Intervene 164 (sem1, ) (Entered: 02/22/2007)
165 USCA Information Copy re 22 USCA Order. (sr) (Entered: 03/07/2007)
166 USCA Judgment re 22 USCA Order. It is ORDERED that the Judgment of the District Court is REMANDED w/instructions to DISMISS Plaintiff's complaint w/prejudice as barred by the statute of limitations. (sr) (Entered: 03/07/2007)
167 RESPONSE in Opposition re 164 MOTION to Intervene of Mark W. Wiles filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 Holmes v. Boal# 2 State Farm v. US# 3 Cooey v. Strickland)(Collyer, Michael) (Entered: 03/14/2007)
168 ORDER of USCA as to 152 Notice of Appeal filed filed by Terry Collins, Reginald Wilkinson, James Haviland, Robert Taft &Edwin Voorhies. The petition for rehearing has been referred to the original panel. The issues were fully considered. It is ordered that the petition be DENIED. (sr) (Entered: 03/23/2007)
169 Emergency MOTION to Intervene as party plaintiff by Kevin Keith. (Attachments: # 1 Exhibit Keith's Proposed Complaint)(Reinhart, Harry) (Entered: 04/07/2007)
170 MOTION for Preliminary Injunction by Intervenor Plaintiff Clarence Carter. (Attachments: # 1 Exhibit 1 − Notice of Intervention# 2 Exhibit 2 − Entry Execution Date# 3 Exhibit 3 − Motion Stay Execution Date# 4 Exhibit 4 − Response Opposing Motion)(Prucha, Linda) (Entered: 04/19/2007)

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04/19/2007 04/19/2007
04/20/2007 04/20/2007
04/20/2007
04/20/2007 04/22/2007 04/23/2007 04/23/2007 04/23/2007 04/23/2007 04/25/2007 04/25/2007 04/25/2007 04/27/2007 04/27/2007

171 MOTION to Intervene of James J. Filiaggi. (Attachments: # 1)(Gamso, Jeffrey) (Entered: 04/19/2007)
175 ORDER of USCA as to 152 Notice of Appeal filed by Terry Collins, Reginald Wilkinson, James Haviland, Robert Taft, Edwin Voorhies &Order 151 . The application to vacate the stay of execution of sentence of death entered by the U.S. District Court, Southern District of Ohio on 12/21/2006, presented to Justice Stevens and by him referred to the Court, is denied. (sr) (Entered: 04/20/2007)
172 MOTION for Preliminary Injunction by Intervenor Plaintiff James J. Filiaggi. (Attachments: # 1)(Gamso, Jeffrey) (Entered: 04/20/2007)
173 ORDER re 171 MOTION to Intervene of James J. Filiaggi filed by James J. Filiaggi; Defendants shall file a memorandum in opposition by 4/21/07; Movant Filiaggi shall file any reply memorandum by 4/22/07; Non−oral hearing on said motion set for 4/23/2007. Signed by Judge Gregory L Frost on 4/20/07. (sem1, ) (Entered: 04/20/2007)
174 ORDER re 170 MOTION for Preliminary Injunction or a Stay under the All Writs Act filed by Clarence Carter; Defendants shall file any memorandum in opposition by 4/27/07; Plaintiff Carter shall file any reply memoranda by 5/2/07; Non−oral hearing on said motion set for 5/3/2007. Signed by Judge Gregory L Frost on 4/20/07. (sem1, ) (Entered: 04/20/2007)
Minute Entry for proceedings held before Judge Gregory L Frost : Telephone Conferences held on 4/20/2007 re Carter &Filiaggi (docketed for statistical purposes only). (sem1, ) (Entered: 04/20/2007)
176 REPLY to Response to Motion re 172 MOTION for Preliminary Injunction, 171 MOTION to Intervene of James J. Filiaggi filed by Intervenor Plaintiff James J. Filiaggi. (Gamso, Jeffrey) (Entered: 04/22/2007)
177 RESPONSE in Opposition re 172 MOTION for Preliminary Injunction filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 Exhibit 1 # 2 Exhibit 2 # 3 Exhibit 3) (kch) (Entered: 04/23/2007)
178 ORDER denying 171 Filiaggi's Motion to Intervene without prejudice and denying as moot 172 Filiaggi's Motion for Preliminary Injunction. Signed by Judge Gregory L Frost on 4/23/07. (ksh, ) (Entered: 04/23/2007)
179 NOTICE OF APPEAL as to 178 Order on Motion to Intervene, Order on Motion for Preliminary Injunction by James J. Filiaggi. Appeal Record due by 5/23/2007. (Gamso, Jeffrey) (Entered: 04/23/2007)
USCA Case Number 07−3488 for 179 Notice of Appeal filed by James J. Filiaggi. (kch) (Entered: 04/23/2007)
180 First MOTION to Intervene of Billy Slagle. Motions referred to Mark R. Abel. (Attachments: # 1 Exhibit A − Complaint# 2 Exhibit A−1# 3 Exhibit A−2# 4 Exhibit A−3# 5 Exhibit A−4# 6 Exhibit A−5) (Culshaw, Kelly) (Entered: 04/25/2007)
181 MOTION to Intervene with Memorandum in Support filed by Romell Broom. Motions referred to Mark R. Abel. (Attachments: # 1 Exhibit A, Proposed Intervenor Complaint (with Exhibits 1 to 6)) (Sweeney, Timothy) (Entered: 04/25/2007)
186 ORDER of USCA as to 179 Notice of Appeal filed by James J. Filiaggi in that the Emergency Motion for Stay of Execution is DENIED (sem1, ) (Entered: 05/01/2007)
182 RESPONSE in Opposition re 169 Emergency MOTION to Intervene as party plaintiff by Kevin Keith filed by Defendants Terry Collins, Edwin Voorhies, romell broom, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 # 2) (Collyer, Michael) (Entered: 04/27/2007)
183 RESPONSE in Opposition re 170 MOTION for Preliminary Injunction of Clarence Carter filed by Defendants Terry Collins, Edwin Voorhies, romell broom, Robert

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04/29/2007 05/01/2007 05/02/2007 05/02/2007 05/02/2007 05/15/2007 05/16/2007 05/16/2007 05/22/2007 05/22/2007 05/23/2007 05/30/2007 05/31/2007
06/04/2007 06/06/2007

Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 # 2) (Collyer, Michael) (Entered: 04/27/2007)
184 REPLY to Response to Motion re 169 Emergency MOTION to Intervene as party plaintiff Plaintiff's Reply to Defendants' Doc. #182 filed by Intervenor Plaintiff Kevin Keith. (Reinhart, Harry) (Entered: 04/29/2007)
185 MOTION to Intervene by Movant Jason Getsy. (Attachments: # 1 Proposed Complaint# 2 Exhibits) (Stebbins, David) (Entered: 05/01/2007)
187 REPLY to the Response to re 170 MOTION to Intervene to motion for preliminary injunction or order under the All Writs Act filed by Intervenor Plaintiff Clarence Carter. (Attachments: # 1 Exhibit no.1# 2 Exhibit no.2) (Prucha, Linda) (Entered: 05/02/2007)
188 MOTION to Intervene filed by Movant Jonathon Monroe. (Attachments: # 1 Proposed Complaint# 2 Exhibit # 3 Exhibit # 4) (Stebbins, David) (Entered: 05/02/2007)
189 AMENDED REPLY to Response to Motion re 170 MOTION for Preliminary Injunction or order under the All Writs Act filed by Intervenor Plaintiff Clarence Carter. (Attachments: # 1 Exhibit no.1# 2 Exhibit no.2) (Prucha, Linda) (Entered: 05/02/2007)
190 NOTICE of Appearance by Charles L Wille for Defendant Robert Taft (Wille, Charles) (Entered: 05/15/2007)
191 RESPONSE in Opposition re 181 MOTION to Intervene by Romell Broom with Memorandum in Support filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 05/16/2007)
192 RESPONSE in Opposition re 180 First MOTION to Intervene of Billy Slagle filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 05/16/2007)
193 RESPONSE in Opposition re 185 Jason Getsy's MOTION to Intervene filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, James Haviland. (Wille, Charles) (Entered: 05/22/2007)
194 RESPONSE in Opposition re 188 Jonathon Monroe's MOTION to Intervene filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 05/22/2007)
195 REPLY to Response to Motion re 180 First MOTION to Intervene of Billy Slagle filed by Intervenor Plaintiff Billy Slagle. (Culshaw, Kelly) (Entered: 05/23/2007)
196 REPLY to Response to Motion re 181 MOTION to Intervene with Memorandum in Support filed by Movant Romell Broom. (Attachments: # 1 Exhibit A) (Sweeney, Timothy) (Entered: 05/30/2007)
197 ORDER granting 170 Plaintiff Clarence Carter's Emergency Motion for Preliminary Injunction. The State of Ohio 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. Signed by Judge Gregory L Frost on 5/31/07. (Attachments: # 1 Biros Order# 2 Henderson Order# 3 Hill Order# 4 Lundgren Order# 5 Spirko Order) (sem1, ) (Entered: 05/31/2007)
198 ORDER of USCA as to Notice of Appeal filed by John R Hicks. The panel has further reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of the case. Accordingly, the petition is denied. (sr) (Entered: 06/05/2007)
199 MOTION to Expedite Ruling on Pending Motion to Intervene with Notice that the Ohio Supreme Court has Today Set Broom's Execution Date for October 18, 2007 by Movant Romell Broom. (Attachments: # 1 Exhibit 1 (Order setting execution date) (Sweeney, Timothy) (Entered: 06/06/2007)

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06/13/2007 06/13/2007
06/19/2007 06/25/2007
06/25/2007 06/25/2007 06/25/2007 06/25/2007 06/25/2007 06/25/2007 06/28/2007 06/29/2007 06/29/2007
06/29/2007 07/02/2007 07/20/2007

200 NOTICE of Appearance by Janet R Hill Arbogast Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland (Arbogast, Janet) (Entered: 06/13/2007)
201 ORDER of USCA as to Notice of Appeal filed by John R Hicks. Upon consideration of appellee's motion to stay mandate, It is ORDERED that the mandate be stayed to allow appellee time to file a petition for a writ of certiorari, and thereafter until the Supreme Court disposes of the case, but shall promptly issue if the petition is not filed within 90 days from the date of final judgment by this court. (sr) (Entered: 06/13/2007)
202 MOTION to Expedite Ruling on Motion to Intervene (Dkt. 180) by Intervenor Plaintiff Billy Slagle. (Culshaw, Kelly) (Entered: 06/19/2007)
203 ORDER granting 164 Wiles's Motion to Intervene; granting 169 Keith's Motion to Intervene; granting 180 Slagle's Motion to Intervene; granting 181 Broom's Motion to Intervene; granting 185 Getsy's Motion to Intervene; granting 188 Monroe's Motion to Intervene; denying as moot 199 202 Motions to Expedite Rulings. Signed by Judge Gregory L Frost on 6/25/07. (sem1, ) (Entered: 06/25/2007)
204 Intervenor COMPLAINT filed by Intervenor Plaintiff Mark W Wiles against Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 # 2) (sem1, ) (Entered: 06/25/2007)
205 Intervenor COMPLAINT filed by Intervenor Plaintiff Kevin Keith against Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (sem1, ) (Entered: 06/25/2007)
206 Intervenor COMPLAINT filed by Intervenor Plaintiff Billy Slagle against Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 # 2 # 3 # 4 # 5) (sem1, ) (Entered: 06/25/2007)
207 Intervenor COMPLAINT filed by Intervenor Plaintiff Romell Broom against Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (sem1, ) (Entered: 06/25/2007)
208 Intervenor COMPLAINT filed by Intervenor Plaintiff Jason Getsy against Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1) (sem1, ) (Entered: 06/25/2007)
209 Intervenor COMPLAINT filed by Intervenor Plaintiff Jonathon D. Monroe against Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 # 2 # 3) (sem1, ) (Entered: 06/25/2007)
210 NOTICE of Appearance by Carol Ann Ellensohn for Defendant Robert Taft (Ellensohn, Carol) (Entered: 06/28/2007)
211 NOTICE of Appearance by Brian J Laliberte for Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland (Laliberte, Brian) (Entered: 06/29/2007)
212 Emergency MOTION for Preliminary Injunction , Or, at the Very Least, for an Order Under the All Writs Act Staying Broom's Execution (currently scheduled for October 18, 2007) by Intervenor Plaintiff Romell Broom. (Attachments: # 1 Exhibit 1, Broom's Filing in Ohio Supreme Court# 2 Exhibit 2, Order Setting Execution Date# 3 Exhibit 3, Newspaper Article# 4 Exhibit 4, Newspaper Article# 5 Exhibit 5, PLoS Study# 6 Exhibit 6, Newspaper Article) (Sweeney, Timothy) (Entered: 06/29/2007)
213 MOTION to Intervene of Proposed Intervenor Grady L. Brinkley. (Attachments: # 1 Exhibit A, Proposed Intervenor Complaint (with Exhibits 1−4)) (Sweeney, Timothy) (Entered: 06/29/2007)
214 MOTION to Intervene as Plaintiff by Marvin Johnson. (Attachments: # 1 Exhibit A − Complaint# 2 Exhibit A−1# 3 Exhibit A−2# 4 Exhibit A−3# 5 Exhibit A−4# 6 Exhibit A−5) (Rigby, Kimberly) (Entered: 07/02/2007)
215 RESPONSE in Opposition re 212 Emergency MOTION for Preliminary Injunction , Or, at the Very Least, for an Order Under the All Writs Act Staying Broom's

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07/23/2007 07/23/2007 07/31/2007
08/01/2007 08/08/2007 08/09/2007 08/15/2007 08/15/2007 08/15/2007 09/05/2007
09/07/2007 09/12/2007 09/12/2007 09/12/2007 09/12/2007

Execution (currently scheduled for October 18, 2007)Emergency MOTION for Preliminary Injunction , Or, at the Very Least, for an Order Under the All Writs Act Staying Broom's Execution (currently scheduled for October 18, 2007) filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 07/20/2007)
216 RESPONSE to Motion re 213 MOTION to Intervene of Proposed Intervenor Grady L. Brinkley filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 07/23/2007)
217 RESPONSE to Motion re 214 MOTION to Intervene as Plaintiff by Marvin Johnson filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 07/23/2007)
218 MOTION to Intervene as Plaintiff by Daniel A. Wilson. (Attachments: # 1 Exhibit A: Proposed Complaint# 2 Exhibit A−1: Informal Complaint# 3 Exhibit A−2: Formal Grievance# 4 Exhibit A−3: Disposition of Formal Grievance# 5 Exhibit A−4: Appeal to Chief Inspector# 6 Exhibit A−5: Decision of Chief Inspector) (Doughten, David) (Entered: 07/31/2007)
219 MOTION to Intervene as Plaintiff James T. Conway. (Attachments: # 1 Exhibit A − A−4# 2 Exhibit A−5 − A−10) (Porter, Randall) (Entered: 08/01/2007)
220 MOTION to Intervene By Darryl Durr. (Attachments: # 1 Exhibit A−Proposed Complaint# 2 Exhibit A−1−−A−6 Lethal Injection Administrative Exhaustion Documents) (McGarry, Kathleen) (Entered: 08/08/2007)
221 NOTICE of Appearance by Randall Lee Porter for Intervenor Plaintiff James T. Conway (Porter, Randall) (Entered: 08/09/2007)
222 RESPONSE in Opposition re 219 MOTION to Intervene as Plaintiff James T. Conway filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 08/15/2007)
223 RESPONSE in Opposition re 220 MOTION to Intervene By Darryl Durr filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 08/15/2007)
224 RESPONSE in Opposition re 218 MOTION to Intervene as Plaintiff by Daniel A. Wilson filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (lvw1, ) (Entered: 08/15/2007)
225 ORDER granting 212 Broom's Emergency Motion for Preliminary Injunction; The State of Ohio and any person acting on its behalf are hereby STAYED from implementing an order for the execution of Romell Broom issued by any court of the State of Ohio until further Order from this Court. Signed by Judge Gregory L Frost on 9/5/07. (Attachments: # 1 12/21/06 Opinion and Order) (sem1, ) (Entered: 09/05/2007)
226 MOTION to Intervene by Michael Turner. (Attachments: # 1 Proposed Complaint# 2 Greivance# 3 Reply) (Stebbins, David) (Entered: 09/07/2007)
227 ORDER granting 213 Brinkley's Motion to Intervene; granting 214 Johnson's Motion to Intervene; granting 218 Wilson's Motion to Intervene; granting 219 Conway's Motion to Intervene; granting 220 Durr's Motion to Intervene. Signed by Judge Gregory L Frost on 9/12/07. (sem1, ) (Entered: 09/12/2007)
228 Intervenor COMPLAINT filed by Intervenor Plaintiff Grady L. Brinkley against Defendants Terry Collins, Edwin Voorhies, Robert Taft, James Haviland. (sem1, ) (Entered: 09/12/2007)
229 Intervenor COMPLAINT filed by Intervenor Plaintiff Marvin G. Johnson against Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 a1# 2 a2# 3 a3# 4 a4# 5 a5) (sem1, ) (Entered: 09/12/2007)
230 Intervenor COMPLAINT filed by Intervenor Plaintiff Daniel A Wilson against Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 a1# 2 a2# 3 a3# 4 a4# 5 a5) (sem1, ) (Entered:

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09/12/2007 09/12/2007 09/12/2007
09/12/2007
09/27/2007 09/27/2007 09/28/2007 10/18/2007 10/18/2007 11/06/2007 11/19/2007 11/29/2007 12/05/2007 12/06/2007 12/17/2007 12/18/2007 12/19/2007

09/12/2007)
231 Intervenor COMPLAINT filed by Intervenor Plaintiff James T. Conway against Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 Exhibit 1) (sem1, ) (Entered: 09/12/2007)
232 Intervenor COMPLAINT filed by Intervenor Plaintiff Darryl M Durr against Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 Exhibit) (sem1, ) (Entered: 09/12/2007)
233 NOTICE FROM U.S. SUPREME COURT re 22 USCA Order − Notice of Appeal : Assignment of Case # 07−6243. The Petition for a writ of certiorari in the above case was filed on 08/29/2007 and placed on the docket 09/04/2007. (sr) Additional attachment(s) added on 9/14/2007 (srj, ). (Entered: 09/13/2007)
234 NOTICE FROM U.S. SUPREME COURT re 22 USCA Order − Notice of Appeal : Assignment of Case # 07−6234. The Petition for writ of certiorari in the above case was filed on 08/30/2007 and placed on the docket 09/05/2007. (sr) (Entered: 09/13/2007)
235 MOTION to Intervene as Plaintiff by Melvin Bonnell. (Attachments: # 1 Exhibit A − Complaint# 2 Exhibit A−1# 3 Exhibit A−2# 4 Exhibit A−3# 5 Exhibit A−4# 6 Exhibit A−5) (Rigby, Kimberly) (Entered: 09/27/2007)
236 MOTION to Intervene as Plaintiff by Maurice Mason. (Attachments: # 1 Attachment A Proposed Complaint # 2 Attachment A1 # 3 Attachment A2) (Stebbins, David) (Entered: 09/27/2007)
237 RESPONSE in Opposition re 226 MOTION to Intervene by Michael Turner filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 09/28/2007)
238 RESPONSE in Opposition re 235 MOTION to Intervene as Plaintiff by Melvin Bonnell filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 10/18/2007)
239 RESPONSE in Opposition re 236 MOTION to Intervene by Maurice Mason filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 10/18/2007)
240 MOTION to Intervene as Plaintiff−Intervenor. (Attachments: # 1 Exhibit Index of Attachments to Motion to Intervene as Plaintiff−Intervenor) (Murray, Kenneth) (Entered: 11/06/2007)
241 RESPONSE in Opposition re 240 MOTION to Intervene as Plaintiff−Intervenor Michael Beuke filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 11/19/2007)
242 MOTION to Intervene as Plaintiff−Intervenor by Michael Benge. (Attachments: # 1 Exhibit A−Proposed Complaint) (Porter, Randall) (Entered: 11/29/2007)
243 MOTION to Withdraw as Attorney by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Ellensohn, Carol) (Entered: 12/05/2007)
244 ORDER granting 243 Motion to Withdraw as Attorney. Attorney Carol Ann Ellensohn terminated. Signed by Judge Mark R. Abel on 12/6/07. (jcw) (Entered: 12/06/2007)
245 MOTION to Substitute Attorney filed by Intervenor Plaintiff Kevin Keith. (jcw) (Entered: 12/17/2007)
246 ORDER granting 245 Intervenor Keith's Motion to Substitute Attorneys. Attorney Harry R Reinhart and Carol Ann Wright terminated. Signed by Judge Mark R. Abel on 12/18/07. (jcw) (Entered: 12/18/2007)
247 RESPONSE in Opposition re 242 MOTION to Intervene as Plaintiff−Intervenor by Michael Benge filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 12/19/2007)

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12/19/2007 12/27/2007 12/27/2007 01/07/2008 01/07/2008 01/08/2008 01/09/2008
01/15/2008 01/16/2008
01/16/2008
01/18/2008 01/18/2008 01/22/2008 02/15/2008
02/15/2008 02/15/2008 02/15/2008 02/15/2008

248 MOTION to Intervene filed by Intervenor Plaintiff Richard Nields. (Attachments: # 1 Exhibit A−1 # 2 Exhibit A−2 # 3 Exhibit A−3 # 4 Exhibit A−4 # 5 Exhibit A−5 # 6 Complaint). (jcw) (Entered: 12/19/2007)
249 MOTION to Intervene. (Attachments: # 1) (Stebbins, David) (Entered: 12/27/2007)
250 MOTION to Intervene. (Attachments: # 1) (Stebbins, David) (Entered: 12/27/2007)
251 MOTION to Withdraw as Attorney by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Laliberte, Brian) (Entered: 01/07/2008)
252 NOTICE by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland Designation of Lead and Trial Counsel (Wille, Charles) (Entered: 01/07/2008)
253 ORDER granting # 251 Motion to Withdraw as Attorney. Attorney Brian J Laliberte terminated Signed by Judge Mark R. Abel on 1/08/08. (rew ) (Entered: 01/08/2008)
254 RESPONSE in Opposition re 248 MOTION to Intervene The Defendant's Memorandum in Opposition to the Motion to Intervene by Richard Nields filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 01/09/2008)
255 MOTION to Withdraw as Attorney by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Arbogast, Janet) (Entered: 01/15/2008)
256 RESPONSE in Opposition re 249 MOTION to Intervene The Defendant's Memorandum in Opposition to the Motion to Intervene by 'Abdul Hakiym Zakie (AKA Roderick Davie) filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 01/16/2008)
257 RESPONSE in Opposition re 250 MOTION to Intervene The Defendant's Memorandum in Opposition to the Motion to Intervene by Brett Hartman filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 01/16/2008)
258 ORDER granting 255 Motion to Withdraw as Attorney. Janet R. Arbogast withdraws her appearance as co−counsel for defendants. Signed by Judge Mark R. Abel on 1/18/08. (kch) (Entered: 01/18/2008)
259 Mail Returned # 253 as Undeliverable − Returned To Sender Unable To Forward. Mail sent to Alan C. Rossman on 01/08/2008. (sr) (Entered: 01/18/2008)
260 NOTICE of Voluntary Dismissal by Intervenor Plaintiff John Spirko (Dunn, Alvin) (Entered: 01/22/2008)
261 ORDER granting 226 Turner's Motion to Intervene; granting 235 Bonnell's Motion to Intervene; granting 236 Mason's Motion to Intervene; granting 240 Beuke's Motion to Intervene; granting 242 Benge's Motion to Intervene; granting 248 Nields' Motion to Intervene; granting 249 Zakiy's Motion to Intervene; granting 250 Hartmann's Motion to Intervene. Signed by Gregory L Frost on 2/15/08. (sem1, ) (Entered: 02/15/2008)
262 Intervenor COMPLAINT filed by Michael R Turner against all Defendants. (Attachments: # 1 exhibit 1, # 2 exhibit 2) (sem1, ) (Entered: 02/15/2008)
263 Intervenor COMPLAINT filed by Melvin Bonnell against all Defendants. (Attachments: # 1 exhibit 1, # 2 exhibit 2, # 3 exhibit 3, # 4 exhibit 4, # 5 exhibit 5) (sem1, ) (Entered: 02/15/2008)
264 Intervenor COMPLAINT filed by Maurice Mason against all Defendants. (Attachments: # 1 exhibit 1, # 2 exhibit 2) (sem1, ) (Entered: 02/15/2008)
265 Intervenor COMPLAINT filed by Michael Beuke against all Defendants. (sem1, ) (Entered: 02/15/2008)

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02/15/2008 02/15/2008 02/15/2008 02/15/2008 02/19/2008 04/28/2008 04/28/2008 06/13/2008
06/20/2008 07/03/2008
07/07/2008 07/07/2008 07/09/2008
07/09/2008 07/10/2008 07/10/2008 07/10/2008 07/10/2008

266 Intervenor COMPLAINT filed by Michael W Benge against all Defendants. (sem1, ) (Entered: 02/15/2008)
267 Intervenor COMPLAINT filed by Richard Nields against all Defendants. (Attachments: # 1 exhibit 1, # 2 exhibit 2, # 3 exhibit 3, # 4 exhibit 4, # 5 exhibit 5) (sem1, ) (Entered: 02/15/2008)
268 Intervenor COMPLAINT filed by Abdul Hakiym Zakiy against all Defendants. (sem1, ) (Entered: 02/15/2008)
269 Intervenor COMPLAINT filed by Brett Hartmann against all Defendants. (sem1, ) (Entered: 02/15/2008)
270 NOTICE by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland of Appearance of Co−Counsel (Eschbacher, Lisa) (Entered: 02/19/2008)
271 Notice from the U.S. Supreme Court: The petition for a writ of certiorari is DENIED. (er ) (Entered: 04/29/2008)
272 Notice from the U.S. Supreme Court: The motion of Brian Keith Moore, et al for leave to file a brief as amici curiae is GRANTED. The petition for writ of certiorari is DENIED. (er ) (Entered: 04/29/2008)
273 MOTION to Dismiss Intervenor Complaints by Defendant Ted Strickland, Governor and by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. Responses due by 7/7/2008 (Wille, Charles) (Entered: 06/13/2008)
274 Notice from the US Supreme Court: The petition for rehearing is denied. (er1 ) (Entered: 06/20/2008)
276 MANDATE of USCA issued on 6/12/08 as to 179 Notice of Appeal filed by James J. Filiaggi, 150 Notice of Appeal filed by John Spirko, 94 Notice of Appeal, filed by Edwin Voorhies, James Haviland, Terry Collins, Robert Taft, Reginald Wilkinson, 28 Notice of Appeal filed by John R Hicks, 141 Notice of Appeal filed by Jerome Henderson, 152 Notice of Appeal, filed by Edwin Voorhies, James Haviland, Terry Collins, Robert Taft, Reginald Wilkinson (sem1, ) (Entered: 07/07/2008)
275 NOTICE of Change of Address by Carol Ann Wright (Wright, Carol) (Entered: 07/07/2008)
277 ORDER denying 273 Motion to Dismiss. Signed by Gregory L Frost on 7/7/08. (ksh, ) (Entered: 07/07/2008)
278 ORDER of USCA as to 152 Notice of Appeal. It is ORDERED that this appeal is remanded to the district court in order to permit that court to address the issue of whether the preliminary injunction issued on 12/21/06 should be vacated in light of the Baze decision. (jcw) (Entered: 07/09/2008)
279 MOTION to Dismiss Jefferey Hill Intervenor Complaint by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. Responses due by 8/4/2008 (Wille, Charles) (Entered: 07/09/2008)
280 MOTION to Dismiss Johnnie Baston's Intervenor Complaint by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. Responses due by 8/4/2008 (Wille, Charles) (Entered: 07/10/2008)
281 MOTION to Dismiss Clarence Carter's Intervenor Complaint by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. Responses due by 8/4/2008 (Wille, Charles) (Entered: 07/10/2008)
282 MOTION to Dismiss Jerome Henderson's Intervenor Complaint by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. Responses due by 8/4/2008 (Wille, Charles) (Entered: 07/10/2008)
283 MOTION to Dismiss Kevin Keith's Intervenor Complaint by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. Responses due by 8/4/2008 (Wille, Charles) (Entered: 07/10/2008)

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07/10/2008 07/10/2008 07/10/2008 07/11/2008 07/11/2008 07/11/2008 07/11/2008 07/11/2008 07/11/2008 07/14/2008 07/14/2008 07/14/2008 07/14/2008
07/14/2008 07/14/2008 07/14/2008 07/21/2008

284 MOTION to Dismiss Billy Slagle's Intervenor Complaint by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. Responses due by 8/4/2008 (Wille, Charles) (Entered: 07/10/2008)
285 MOTION to Dismiss Arthur Tyler's Intervenor Complaint by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. Responses due by 8/4/2008 (Wille, Charles) (Entered: 07/10/2008)
286 MOTION to Dismiss Mark Wiles' Intervenor Complaint by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. Responses due by 8/4/2008 (Wille, Charles) (Entered: 07/10/2008)
287 MOTION to Dismiss Romell Broom's Intervenor Complaint by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. Responses due by 8/4/2008 (Wille, Charles) (Entered: 07/11/2008)
288 MOTION to Dismiss Darryl Durr's Intervenor Complaint by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. Responses due by 8/4/2008 (Wille, Charles) (Entered: 07/11/2008)
289 MOTION to Dismiss Jason Getsy's Intervenor Complaint by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. Responses due by 8/4/2008 (Wille, Charles) (Entered: 07/11/2008)
290 MOTION to Dismiss Michael Turner's Intervenor Complaint by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. Responses due by 8/4/2008 (Wille, Charles) (Entered: 07/11/2008)
291 MOTION to Dismiss Melvin Bonnell's Intervenor Complaint by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. Responses due by 8/4/2008 (Wille, Charles) (Entered: 07/11/2008)
292 MOTION to Dismiss Daniel Wilson's Intervenor Complaint by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. Responses due by 8/4/2008 (Wille, Charles) (Entered: 07/11/2008)
293 MOTION to Dismiss Michael Benge's Intervenor Complaint by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. Responses due by 8/7/2008 (Wille, Charles) (Entered: 07/14/2008)
294 MOTION to Dismiss Michael Beuke's Intervenor Complaint by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. Responses due by 8/7/2008 (Wille, Charles) (Entered: 07/14/2008)
295 MOTION to Dismiss Kenneth Biros' Intervenor Complaint by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. Responses due by 8/7/2008 (Wille, Charles) (Entered: 07/14/2008)
296 MOTION to Dismiss 'Abdul Hakiym Zakie's (aka Roderick Davie) Intervenor Complaint by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. Responses due by 8/7/2008 (Wille, Charles) (Entered: 07/14/2008)
297 MOTION to Dismiss Brett Hartman's Intervenor Complaint by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. Responses due by 8/7/2008 (Wille, Charles) (Entered: 07/14/2008)
298 MOTION to Dismiss Maurice Mason's Intervenor Complaint by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. Responses due by 8/7/2008 (Wille, Charles) (Entered: 07/14/2008)
299 MOTION to Dismiss Richard Nields' Intervenor Complaint by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. Responses due by 8/7/2008 (Wille, Charles) (Entered: 07/14/2008)
300 RESPONSE in Opposition re 288 MOTION to Dismiss Darryl Durr's Intervenor Complaint filed by Intervenor Plaintiff Darryl M Durr. (Attachments: # 1 Exhibit) (McGarry, Kathleen) (Entered: 07/21/2008)

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07/21/2008 07/21/2008 07/21/2008 07/21/2008 07/21/2008 07/21/2008 07/21/2008 07/21/2008 07/21/2008 07/21/2008 07/21/2008 07/21/2008 07/21/2008 07/21/2008 07/21/2008

301 RESPONSE in Opposition to 289 MOTION to Dismiss Jason Getsy's Intervenor Complaint filed by Intervenor Plaintiff Jason Getsy. (Attachments: # 1 Exhibit Rivera Order, # 2 Exhibit Heath Testimony) (Stebbins, David) Modified text on 7/22/2008 (er1 ). (Entered: 07/21/2008)
302 RESPONSE in Opposition to 297 MOTION to Dismiss Brett Hartman's Intervenor Complaint filed by Intervenor Plaintiff Brett Hartmann. (Attachments: # 1 Exhibit Rivera Order, # 2 Exhibit Heath Testimony) (Stebbins, David) Modified text on 7/22/2008 (sr). (Entered: 07/21/2008)
303 RESPONSE in Opposition to 298 MOTION to Dismiss Maurice Mason's Intervenor Complaint filed by Intervenor Plaintiff Maurice Mason. (Attachments: # 1 Exhibit Rivera Order, # 2 Exhibit Heath Testimony) (Stebbins, David) Modified text on 7/22/2008 (sr). (Entered: 07/21/2008)
304 RESPONSE in Opposition to 290 MOTION to Dismiss Michael Turner's Intervenor Complaint filed by Intervenor Plaintiff Michael R Turner. (Attachments: # 1 Exhibit Rivera Order, # 2 Exhibit Heath Testimony) (Stebbins, David) Modified text on 7/22/2008 (sr). (Entered: 07/21/2008)
305 RESPONSE in Opposition to 296 MOTION to Dismiss 'Abdul Hakiym Zakie's (aka Roderick Davie) Intervenor Complaint filed by Intervenor Plaintiff 'Abdul Hakiym Zakiy. (Attachments: # 1 Exhibit) (Stebbins, David) Modified text on 7/22/2008 (sr). (Entered: 07/21/2008)
306 RESPONSE in Opposition re 281 MOTION to Dismiss Clarence Carter's Intervenor Complaint filed by Intervenor Plaintiff Clarence Carter. (Attachments: # 1 Exhibts to Opposition to Mt. Dismiss) (Prucha, Linda) (Entered: 07/21/2008)
307 RESPONSE in Opposition re 291 MOTION to Dismiss Melvin Bonnell's Intervenor Complaint filed by Intervenor Plaintiff Melvin Bonnell. (Attachments: # 1 Exhibits to Response in Opposition to Motion to Dismiss) (Rigby, Kimberly) (Entered: 07/21/2008)
308 RESPONSE in Opposition re 284 MOTION to Dismiss Billy Slagle's Intervenor Complaint filed by Intervenor Plaintiff Billy Slagle. (Attachments: # 1 Exhibit) (Schneider, Kelly) (Entered: 07/21/2008)
309 RESPONSE in Opposition re 293 MOTION to Dismiss Michael Benge's Intervenor Complaint filed by Intervenor Plaintiff Michael W Benge. (Attachments: # 1 Exhibits to Memo. Contra) (Porter, Randall) (Entered: 07/21/2008)
310 RESPONSE in Opposition re 292 MOTION to Dismiss Daniel Wilson's Intervenor Complaint filed by Intervenor Plaintiff Daniel A Wilson. (Attachments: # 1 Exhibit A: Rivera Decision) (Rossman, Alan) (Entered: 07/21/2008)
311 RESPONSE in Opposition re 283 MOTION to Dismiss Kevin Keith's Intervenor Complaint filed by Intervenor Plaintiff Kevin Keith. (Attachments: # 1 Exhibits to Opposition) (Troutman, Rachel) (Entered: 07/21/2008)
312 RESPONSE in Opposition re 295 MOTION to Dismiss Kenneth Biros' Intervenor Complaint filed by Intervenor Plaintiff Kenneth Biros. (Attachments: # 1 Exhibit 1, Lorain County court decision, # 2 Exhibit 2, SOL tolling table 1, # 3 Exhibit 3, SOL tolling table 2) (Sweeney, Timothy) (Entered: 07/21/2008)
313 RESPONSE in Opposition re 282 MOTION to Dismiss Jerome Henderson's Intervenor Complaint filed by Intervenor Plaintiff Jerome Henderson. (Attachments: # 1 Exhibit Rivera Order Granting Rrelief, # 2 Exhibit Testimony of Dr Heath) (Wright, Carol) (Entered: 07/21/2008)
314 RESPONSE in Opposition re 285 MOTION to Dismiss Arthur Tyler's Intervenor Complaint filed by Intervenor Plaintiff Arthur Tyler. (Attachments: # 1 Exhibit) (Kerger, Richard) (Entered: 07/21/2008)
315 RESPONSE in Opposition re 294 MOTION to Dismiss Michael Beuke's Intervenor Complaint filed by Intervenor Plaintiff Michael Beuke. (Murray, Kenneth) (Entered: 07/21/2008)

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 45 of 114

07/21/2008 07/21/2008 07/22/2008 07/24/2008 07/24/2008 07/24/2008 07/24/2008 07/24/2008 07/24/2008 07/24/2008 07/24/2008 07/24/2008 07/24/2008 07/24/2008 07/24/2008 07/24/2008

316 RESPONSE in Opposition re 287 MOTION to Dismiss Romell Broom's Intervenor Complaint filed by Intervenor Plaintiff Romell Broom. (Attachments: # 1 Exhibit 1, Lorain County decision, # 2 Exhibit 2, Copy of Heath Declaration) (Sweeney, Timothy) (Entered: 07/21/2008)
317 RESPONSE to Motion re 279 MOTION to Dismiss Jefferey Hill Intervenor Complaint filed by Intervenor Plaintiff Jeffrey D Hill. (Attachments: # 1 Exhibits Accompanying Memorandum Opposing Motion to Dismiss) (Crim, Gary) (Entered: 07/21/2008)
318 NOTICE by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland of Withdrawal of Defendants' Co−Counsel (AAG Eschbacher may be terminated from the docket) (Eschbacher, Lisa) (Entered: 07/22/2008)
319 Reply To Response To Motion re 309 Response in Opposition to Motion to Dismiss Benge's Intervenor Complaint by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) Text Modified on 7/25/2008 (sr). (Entered: 07/24/2008)
320 Reply To Response To Motion re 315 Response in Opposition to Motion to Dismiss Michael Beuke's Intervenor Complaint by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) Text Modified on 7/25/2008 (sr). (Entered: 07/24/2008)
321 Reply To Response To Motion re 312 Response in Opposition to Motion, to Dismiss Kenneth Biros' Intervenor Complaint by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) Text Modified on 7/25/2008 (sr). (Entered: 07/24/2008)
322 REPLY to Response to Motion re 291 MOTION to Dismiss Melvin Bonnell's Intervenor Complaint filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 07/24/2008)
323 REPLY to Response to Motion re 287 MOTION to Dismiss Romell Broom's Intervenor Complaint filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 07/24/2008)
324 REPLY to Response to Motion re 281 MOTION to Dismiss Clarence Carter's Intervenor Complaint filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 07/24/2008)
325 REPLY to Response to Motion re 296 MOTION to Dismiss 'Abdul Hakiym Zakie's (aka Roderick Davie) Intervenor Complaint filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 07/24/2008)
326 REPLY to Response to Motion re 288 MOTION to Dismiss Darryl Durr's Intervenor Complaint filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 07/24/2008)
327 REPLY to Response to Motion re 289 MOTION to Dismiss Jason Getsy's Intervenor Complaint filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 07/24/2008)
328 REPLY to Response to Motion re 297 MOTION to Dismiss Brett Hartman's Intervenor Complaint filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 07/24/2008)
329 REPLY to Response to Motion re 282 MOTION to Dismiss Jerome Henderson's Intervenor Complaint filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 07/24/2008)
330 REPLY to Response to Motion re 279 MOTION to Dismiss Jefferey Hill Intervenor Complaint filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 07/24/2008)
331 REPLY to Response to Motion re 283 MOTION to Dismiss Kevin Keith's Intervenor Complaint filed by Defendants Terry Collins, Edwin Voorhies, Robert

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07/24/2008 07/24/2008 07/24/2008 07/24/2008 07/24/2008 07/30/2008 07/30/2008 07/31/2008 07/31/2008 08/11/2008 08/19/2008 08/19/2008
08/25/2008 08/25/2008 08/25/2008 08/25/2008 08/25/2008 08/25/2008

Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 07/24/2008)
332 REPLY to Response to Motion re 298 MOTION to Dismiss Maurice Mason's Intervenor Complaint filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 07/24/2008)
333 REPLY to Response to Motion re 284 MOTION to Dismiss Billy Slagle's Intervenor Complaint filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 07/24/2008)
334 REPLY to Response to Motion re 290 MOTION to Dismiss Michael Turner's Intervenor Complaint filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 07/24/2008)
335 REPLY to Response to Motion re 285 MOTION to Dismiss Arthur Tyler's Intervenor Complaint filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 07/24/2008)
336 REPLY to Response to Motion re 292 MOTION to Dismiss Daniel Wilson's Intervenor Complaint filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 07/24/2008)
337 Letter to the Court from Richard Nields (sem1, ) (Entered: 07/31/2008)
338 Letter to the Court from Mark Wiles (sem1, ) (Entered: 07/31/2008)
339 MOTION to Amend/Correct 337 Letter, 299 MOTION to Dismiss Richard Nields' Intervenor Complaint by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 07/31/2008)
340 MOTION to Amend/Correct 338 Letter, 286 MOTION to Dismiss Mark Wiles' Intervenor Complaint by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 07/31/2008)
341 RESPONSE in Opposition re 340 MOTION to Amend/Correct 338 Letter, 286 MOTION to Dismiss Mark Wiles' Intervenor Complaint filed by Intervenor Plaintiff Mark W Wiles. (jcw) (Entered: 08/11/2008)
342 NOTICE of Appearance by Randall Lee Porter Intervenor Plaintiff Richard Nields (Porter, Randall) (Entered: 08/19/2008)
343 RESPONSE in Opposition re 339 MOTION to Amend/Correct 337 Letter, 299 MOTION to Dismiss Richard Nields' Intervenor Complaint filed by Intervenor Plaintiff Richard Nields. (Attachments: # 1 Exhibit to Memo Contra to Amended Motion to Dismiss) (Porter, Randall) (Entered: 08/19/2008)
344 ORDER granting 279 Defendants' Motion to Dismiss as to Plaintiff Jeffrey Hill. Signed by Gregory L Frost on 8/25/08. (sem1, ) (Entered: 08/25/2008)
345 ORDER granting 281 Defendants' Motion to Dismiss as to Plaintiff Clarence Carter. Signed by Gregory L Frost on 8/25/08. (Attachments: # 1 Hill decision) (sem1, ) (Entered: 08/25/2008)
346 ORDER granting 283 Defendants' Motion to Dismiss as to Plaintiff Kevin Keith. Signed by Gregory L Frost on 8/25/08. (Attachments: # 1 Hill decision) (sem1, ) (Entered: 08/25/2008)
347 ORDER granting 284 Defendants' Motion to Dismiss as to Plaintiff Billy Slagle. Signed by Gregory L Frost on 8/25/08. (Attachments: # 1 Hill decision) (sem1, ) (Entered: 08/25/2008)
348 ORDER granting 285 Defendants' Motion to Dismiss as to Plaintiff Arthur Tyler. Signed by Gregory L Frost on 8/25/08. (Attachments: # 1 Hill decision) (sem1, ) (Entered: 08/25/2008)
349 ORDER granting 287 Defendants' Motion to Dismiss as to Plaintiff Romell Broom. Signed by Gregory L Frost on 8/25/08. (Attachments: # 1 Hill decision) (sem1, ) (Entered: 08/25/2008)

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 47 of 114

08/25/2008 08/25/2008 08/25/2008 08/25/2008 08/25/2008 08/25/2008 08/25/2008 08/25/2008 08/25/2008 08/25/2008 08/26/2008 08/26/2008
08/26/2008 08/26/2008 09/02/2008 09/03/2008 09/03/2008

350 ORDER granting 288 Defendants' Motion to Dismiss as to Plaintiff Darryl Durr. Signed by Gregory L Frost on 8/25/08. (Attachments: # 1 Hill decision) (sem1, ) (Entered: 08/25/2008)
351 ORDER granting 290 Defendants' Motion to Dismiss as to Plaintiff Michael Turner. Signed by Gregory L Frost on 8/25/08. (Attachments: # 1 Hill decision) (sem1, ) (Entered: 08/25/2008)
352 ORDER granting 291 Defendants' Motion to Dismiss as to Plaintiff Melvin Bonnell. Signed by Gregory L Frost on 8/25/08. (Attachments: # 1 Hill decision) (sem1, ) (Entered: 08/25/2008)
353 ORDER granting 292 Defendants' Motion to Dismiss as to Plaintiff Daniel Wilson. Signed by Gregory L Frost on 8/25/08. (Attachments: # 1 Hill decision) (sem1, ) (Entered: 08/25/2008)
354 ORDER granting 293 Defendants' Motion to Dismiss as to Plaintiff Michael Benge. Signed by Gregory L Frost on 8/25/08. (Attachments: # 1 Hill decision) (sem1, ) (Entered: 08/25/2008)
355 ORDER granting 294 Defendants' Motion to Dismiss as to Plaintiff Michael Beuke. Signed by Gregory L Frost on 8/25/08. (Attachments: # 1 Hill decision) (sem1, ) (Entered: 08/25/2008)
356 ORDER granting 296 Defendants' Motion to Dismiss as to Plaintiff Abdul Hakiym Zakiy (aka Roderick Davie). Signed by Gregory L Frost on 8/25/08. (Attachments: # 1 Hill decision) (sem1, ) (Entered: 08/25/2008)
357 ORDER granting 297 Defendants' Motion to Dismiss as to Plaintiff Brett Hartmann. Signed by Gregory L Frost on 8/25/08. (Attachments: # 1 Hill decision) (sem1, ) (Entered: 08/25/2008)
358 ORDER denying 282 Defendants' Motion to Dismiss as to Jerome Henderson. Signed by Gregory L Frost on 8/25/08. (Attachments: # 1 Hill decision) (sem1, ) (Entered: 08/25/2008)
359 ORDER granting 298 Defendants' Motion to Dismiss as to Plaintiff Maurice Mason. Signed by Gregory L Frost on 8/25/08. (Attachments: # 1 Hill decision) (sem1, ) (Entered: 08/25/2008)
360 ORDER granting 289 Defendants' Motion to Dismiss as to Plaintiff Jason Getsy. Signed by Gregory L Frost on 8/26/08. (Attachments: # 1 Hill decision) (sem1, ) (Entered: 08/26/2008)
361 ORDER denying 295 Defendants' Motion to Dismiss as to Plaintiff Kenneth Biros; The Court schedules an In−Court Hearing on 12/15/08 at 9:00 a.m. in Courtroom #5. Signed by Gregory L Frost on 8/26/08. (Attachments: # 1 Hill decision) (sem1, ) (Entered: 08/26/2008)
Set/Reset Hearings: In−Court Hearing set for 12/15/2008 09:00 AM in Courtroom 5 before Gregory L Frost. (sem1, ) (Entered: 08/26/2008)
362 NOTICE of Change of Address by John Patrick Parker (Parker, John) (Entered: 08/26/2008)
363 NOTICE of Appearance by Randall Lee Porter Intervenor Plaintiff Mark W Wiles (Porter, Randall) (Entered: 09/02/2008)
364 NOTICE of Appearance by Pamela J Prude−Smithers Intervenor Plaintiff Johnnie Baston (Prude−Smithers, Pamela) (Entered: 09/03/2008)
365 ORDER denying as moot the letters that Nields and Wiles filed on 7/30/08; denying as moot 299 286 Defendants' Original Motions to Dismiss as to Plaintiffs Nields and Wiles; Plaintiffs Wiles and Baston shall have until 9/10/08 to respond to Defendants' remaining motions to dismiss; Defendants' shall have until 9/15/08 to file any reply to their motions to dismiss; A non−oral hearing on said motions is scheduled for 9/17/08. Signed by Gregory L Frost on 9/3/08. (sem1, ) (Entered: 09/03/2008)

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 48 of 114

09/04/2008 09/04/2008 09/08/2008 09/09/2008
09/09/2008 09/10/2008 09/10/2008 09/10/2008
09/15/2008 09/15/2008 09/15/2008 09/17/2008 09/22/2008 09/22/2008 09/22/2008
09/22/2008
09/22/2008

366 NOTICE of Appearance by Matthew A Kanai Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland (Kanai, Matthew) (Entered: 09/04/2008)
367 MOTION to Dismiss Petitioner's Amended Complaint by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. Responses due by 9/29/2008 (Kanai, Matthew) (Entered: 09/04/2008)
368 MOTION to Intervene Nathaniel E. Jackson as Plaintiff−Intervenor. (Attachments: # 1 Exhibit A − Complaint, # 2 Exhibits to Complaint) (Porter, Randall) (Entered: 09/08/2008)
369 ORDER re 368 MOTION to Intervene Nathaniel E. Jackson as Plaintiff−Intervenor filed by Nathaniel E Jackson; Non−oral hearing on said motion set for 10/31/2008. Signed by Gregory L Frost on 9/9/08. (sem1, ) (Entered: 09/09/2008)
370 MOTION to Withdraw 367 MOTION to Dismiss Petitioner's Amended Complaint by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Kanai, Matthew) (Entered: 09/09/2008)
371 ORDER granting 370 Defendants' Motion to Withdraw the Motion to Dismiss. Signed by Gregory L Frost on 9/10/08. (sem1, ) (Entered: 09/10/2008)
372 Response re 365 Order on Motion to Dismiss by Intervenor Plaintiff Mark W Wiles. (Porter, Randall) (Entered: 09/10/2008)
373 RESPONSE in Opposition re 280 MOTION to Dismiss Johnnie Baston's Intervenor Complaint filed by Intervenor Plaintiff Johnnie Baston. (Attachments: # 1 Exhibit to Response in Opposition to Motion to Dismiss) (Prude−Smithers, Pamela) (Entered: 09/10/2008)
374 NOTICE of Change of Address by Charles L Wille (Wille, Charles) (Entered: 09/15/2008)
375 REPLY to Response to Motion re 286 MOTION to Dismiss Mark Wiles' Intervenor Complaint filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 09/15/2008)
376 REPLY to Response to Motion re 280 MOTION to Dismiss Johnnie Baston's Intervenor Complaint filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 09/15/2008)
377 MOTION to Intervene. (Attachments: # 1 Complaint, # 2 Exhibit to complaint) (Troutman, Rachel) (Entered: 09/17/2008)
378 MOTION for Leave to Proceed in forma pauperis on appeal by Intervenor Plaintiff Brett Hartmann. (Attachments: # 1 Exhibit) (Stebbins, David) (Entered: 09/22/2008)
379 NOTICE OF APPEAL as to 357 Order on Motion to Dismiss by Intervenor Plaintiff Brett Hartmann. (Stebbins, David) (Entered: 09/22/2008)
380 MOTION for Protective Order by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Attachments: # 1 Exhibit 1, Sweeney Letter of 9/11/08, # 2 Exhibit 2, Draft Protective Order, # 3 Exhibit 3, Maryland Case, Evans v. Saar, et. al.) (Wille, Charles) (Entered: 09/22/2008)
381 MOTION to Intervene by Plaintiff Phillip L. Elmore. (Attachments: # 1 Exhibit Attachment 1 Administrative filings, # 2 Exhibit Attachment 2 Proposed Complaint, # 3 Exhibit Exhibts to Complaint part 1, # 4 Exhibit Exhibits to Complaint Part 2, # 5 Exhibit Exhibits to Complaint Part 3) (McGarry, Kathleen) (Entered: 09/22/2008)
382 MOTION for Leave to Proceed in forma pauperis by Intervenor Plaintiff Michael W Benge. (Attachments: # 1 Exhibit A − Affidavit to Mt. Proceed IFP) (Porter, Randall) (Entered: 09/22/2008)

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 49 of 114

09/22/2008
09/22/2008 09/22/2008 09/22/2008 09/22/2008 09/22/2008 09/22/2008 09/22/2008 09/23/2008 09/23/2008 09/23/2008 09/24/2008 09/24/2008 09/24/2008 09/24/2008 09/24/2008 09/24/2008 09/24/2008 09/24/2008 09/24/2008

383 ORDER memorializing the recent Telephone Status Conference regarding the upcoming 12/15/08 hearing: Motion for a Protective Order shall be filed by 9/22/08; Memorandum in Opposition to said motion shall be filed by 9/25/08; Non−oral hearing on said motion set for 9/26/2008. Signed by Gregory L Frost on 9/22/08. (sem1, ) (Entered: 09/22/2008)
384 MOTION for Leave to Proceed in forma pauperis by Intervenor Plaintiff Billy Slagle. (Attachments: # 1 Affidavit Indigency affidavit) (Schneider, Kelly) (Entered: 09/22/2008)
385 NOTICE OF APPEAL as to 347 Order on Motion to Dismiss by Intervenor Plaintiff Billy Slagle. (Schneider, Kelly) (Entered: 09/22/2008)
USCA Case Number 08−4177 for 385 Notice of Appeal filed by Billy Slagle, 379 Notice of Appeal filed by Brett Hartmann. (kch1) (Entered: 09/22/2008)
386 MOTION for Leave to Proceed in forma pauperis on appeal by Intervenor Plaintiff Jason Getsy. (Attachments: # 1 Exhibit) (Stebbins, David) (Entered: 09/22/2008)
387 NOTICE OF APPEAL as to 360 Order on Motion to Dismiss by Intervenor Plaintiff Jason Getsy. (Stebbins, David) (Entered: 09/22/2008)
388 NOTICE OF APPEAL as to 350 Order on Motion to Dismiss by Intervenor Plaintiff Darryl M Durr. (McGarry, Kathleen) (Entered: 09/22/2008)
389 MOTION for Leave to Proceed in forma pauperis on appeal by Intervenor Plaintiff Darryl M Durr. (Attachments: # 1 Affidavit to Proceed in forma pauperis) (McGarry, Kathleen) (Entered: 09/22/2008)
390 NOTICE OF APPEAL as to 354 Order on Motion to Dismiss by Intervenor Plaintiff Michael W Benge. (Porter, Randall) (Entered: 09/23/2008)
391 NOTICE OF APPEAL as to 349 Order on Motion to Dismiss by Intervenor Plaintiff Romell Broom. (Sweeney, Timothy) (Entered: 09/23/2008)
392 MOTION for Leave to Proceed in forma pauperis on Appeal by Intervenor Plaintiff Romell Broom. (Attachments: # 1 Exhibit In Forma Pauperis Affidavit) (Sweeney, Timothy) (Entered: 09/23/2008)
393 MOTION for Leave to Proceed in forma pauperis by Intervenor Plaintiff Arthur Tyler. (Attachments: # 1 Exhibit A − Affidavit to IFP Motion) (Sandford, Kathryn) (Entered: 09/24/2008)
394 NOTICE OF APPEAL as to 348 Order on Motion to Dismiss by Intervenor Plaintiff Arthur Tyler. (Sandford, Kathryn) (Entered: 09/24/2008)
395 MOTION for Leave to Proceed in forma pauperis by Intervenor Plaintiff Clarence Carter. (Attachments: # 1 Exhibit A − Affidavit to IFP) (Wilhelm, Joseph) (Entered: 09/24/2008)
396 NOTICE OF APPEAL as to 345 Order on Motion to Dismiss by Intervenor Plaintiff Clarence Carter. (Wilhelm, Joseph) (Entered: 09/24/2008)
397 MOTION for Leave to Proceed in forma pauperis for appeal by Intervenor Plaintiff Maurice Mason. (Attachments: # 1 Exhibit) (Stebbins, David) (Entered: 09/24/2008)
398 NOTICE OF APPEAL as to 359 Order on Motion to Dismiss by Intervenor Plaintiff Maurice Mason. (Stebbins, David) (Entered: 09/24/2008)
399 NOTICE of Appearance by Gregory William Meyers Intervenor Plaintiff James T. Conway (Meyers, Gregory) (Entered: 09/24/2008)
400 NOTICE of Appearance by Gregory William Meyers Intervenor Plaintiff Marvin G. Johnson (Meyers, Gregory) (Entered: 09/24/2008)
401 MOTION for Discovery by Joining Biros Fact−development Proceedings by Intervenor Plaintiff James T. Conway. (Attachments: # 1 Exhibit) (Meyers, Gregory) (Entered: 09/24/2008)

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 50 of 114

09/24/2008 09/25/2008
09/25/2008 09/25/2008 09/25/2008 09/25/2008 09/25/2008 09/25/2008 09/25/2008 09/25/2008 09/25/2008 09/25/2008 09/25/2008 09/25/2008 09/25/2008 09/25/2008 09/25/2008 09/26/2008
09/26/2008

402 MOTION for Discovery by Joining Biros Fact−development Proceedings by Intervenor Plaintiff Marvin G. Johnson. (Attachments: # 1 Exhibit) (Meyers, Gregory) (Entered: 09/24/2008)
403 OPINION AND ORDER granting Defendants' Motion to Dismiss Richard Nields' Intervenor Complaint (Doc. # 339 ). Signed by Gregory L Frost on 9/25/2008. (Attachments: # 1 Opinion and Order of August 25, 2008) (pes) (Entered: 09/25/2008)
404 NOTICE by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland re 361 Order on Motion to Dismiss Defendants' Notice of Witnesses (Wille, Charles) (Entered: 09/25/2008)
405 OPINION AND ORDER granting # 280 Motion to Dismiss Johnnie Baston's Intervenor Complaint. Signed by Gregory L Frost on 9/25/2008. (Attachments: # 1 Opinion and Order of August 25, 2008) (pes) (Entered: 09/25/2008)
406 OPINION AND ORDER granting # 340 Motion to Dismiss Mark Wiles' Intervenor Complaint. Signed by Gregory L Frost on 9/25/2008. (Attachments: # 1 Opinion and Order of August 25, 2008) (pes) (Entered: 09/25/2008)
USCA Case Number 08−4177 for 379 Notice of Appeal filed by Brett Hartmann. (sr) (Entered: 09/25/2008)
USCA Case Number 08−4197 for 385 Notice of Appeal filed by Billy Slagle. (sr) (Entered: 09/25/2008)
USCA Case Number 08−4198 for 390 Notice of Appeal filed by Michael W Benge. (sr) (Entered: 09/25/2008)
USCA Case Number 08−4199 for 387 Notice of Appeal filed by Jason Getsy. (sr) (Entered: 09/25/2008)
USCA Case Number 08−4200 for 391 Notice of Appeal filed by Romell Broom. (sr) (Entered: 09/25/2008)
USCA Case Number 08−4201 for 388 Notice of Appeal filed by Darryl M Durr. (sr) (Entered: 09/25/2008)
USCA Case Number 08−4203 for 394 Notice of Appeal filed by Arthur Tyler. (sr) (Entered: 09/25/2008)
USCA Case Number 08−4205 for 396 Notice of Appeal filed by Clarence Carter. (sr) (Entered: 09/25/2008)
USCA Case Number 08−4206 for 398 Notice of Appeal filed by Maurice Mason. (sr) (Entered: 09/25/2008)
407 RESPONSE to Motion re 380 MOTION for Protective Order filed by Intervenor Plaintiff Kenneth Biros. (Attachments: # 1 Exhibit 1, Biros's Proposed Protective Order) (Sweeney, Timothy) (Entered: 09/25/2008)
408 Witness List by Intervenor Plaintiff Kenneth Biros. (Sweeney, Timothy) (Entered: 09/25/2008)
410 RESPONSE in Opposition re 380 MOTION for Protective Order filed by Intervenor Plaintiff Kenneth Biros. (Attachments: # 1 Exhibit 1) (sr) (Entered: 09/26/2008)
409 ORDER denying 401 402 Motions to Participate in Plaintiff Biros' Preliminary Injunction Discovery and Evidentiary Hearing Proceedings filed by Plaintiffs James Conway and Marvin Johnson. Signed by Gregory L Frost on 9/26/08. (sem1, ) (Entered: 09/26/2008)
Notice of Correction: Former # 407 (Response To Motion) filed by Timothy Sweeney was deleted by Clerk's office and re−filed as current document # 410 (Response In Opposition To Motion)in order to correct ECF filing event. (sr) (Entered: 09/26/2008)

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09/26/2008 09/26/2008
10/08/2008 10/09/2008 10/09/2008 10/10/2008 10/17/2008
10/21/2008 10/21/2008 10/23/2008 10/24/2008 10/24/2008 10/28/2008 10/29/2008 10/30/2008 10/30/2008 10/30/2008

411 RESPONSE in Opposition re 368 MOTION to Intervene Nathaniel E. Jackson as Plaintiff−Intervenor filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 09/26/2008)
412 ORDER granting 378 Motion for Leave to Proceed in forma pauperis; granting 382 Motion for Leave to Proceed in forma pauperis; granting 384 Motion for Leave to Proceed in forma pauperis; granting 386 Motion for Leave to Proceed in forma pauperis; granting 389 Motion for Leave to Proceed in forma pauperis; granting 392 Motion for Leave to Proceed in forma pauperis; granting 393 Motion for Leave to Proceed in forma pauperis; granting 395 Motion for Leave to Proceed in forma pauperis; granting 397 Motion for Leave to Proceed in forma pauperis. Signed by Gregory L Frost on 9/26/08. (sem1, ) (Entered: 09/26/2008)
413 ORDER granting in part 380 Defendants' Motion for Protective Order, but declines to adopt fully either side's proffered order. Signed by Gregory L Frost on 10/8/08. (sem1, ) (Entered: 10/08/2008)
414 RESPONSE to Motion re 377 MOTION to Intervene (by Robert Bethel) filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 10/09/2008)
415 RESPONSE to Motion re 381 MOTION to Intervene by Plaintiff Phillip L. Elmore filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 10/09/2008)
416 REPLY to Response to Motion re 368 MOTION to Intervene Nathaniel E. Jackson as Plaintiff−Intervenor filed by Intervenor Plaintiff Nathaniel E Jackson. (Attachments: # 1 Exhibit to Reply) (Porter, Randall) (Entered: 10/10/2008)
417 Joint MOTION for Order to Extend Dates and Adjust the Schedule for the Biros Preliminary Injunction Proceedings by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland, Intervenor Plaintiff Kenneth Biros. (Sweeney, Timothy) (Entered: 10/17/2008)
418 ORDER granting 417 Joint Motion to Alter the Case Schedule; The In−Court Preliminary Injunction Hearing is rescheduled for 3/2/09 at 9:00 a.m. in Courtroom #5. Signed by Gregory L Frost on 10/21/08. (sem1, ) (Entered: 10/21/2008)
Set/Reset Hearings: Preliminary Injunction Hearing reset for 3/2/2009 09:00 AM in Courtroom 5 before Gregory L Frost. (sem1, ) (Entered: 10/21/2008)
419 MOTION to Intervene Donald E. Ketterer as Plaintiff−Intervenor. (Attachments: # 1 Exhibit A − Complaint, # 2 Exhs to Complaint) (Porter, Randall) (Entered: 10/23/2008)
420 NOTICE OF APPEAL as to 405 Order on Motion to Dismiss by Intervenor Plaintiff Johnnie Baston. (Rigby, Kimberly) . (Entered: 10/24/2008)
421 MOTION for Leave to Appeal in forma pauperis by Intervenor Plaintiff Johnnie Baston. (Attachments: # 1 Affidavit of Indigency) (Rigby, Kimberly) (Entered: 10/24/2008)
USCA Case Number 08−4387 for 420 Notice of Appeal filed by Johnnie Baston. (kch1) (Entered: 10/28/2008)
422 MOTION for Order to Modify the Existing Protective Order by Intervenor Plaintiffs Marvin G. Johnson, James T. Conway. (Schneider, Kelly) (Entered: 10/29/2008)
423 NOTICE OF WITHDRAWAL OF DOCUMENT by Intervenor Plaintiffs Marvin G. Johnson, James T. Conway re 422 MOTION for Order to Modify the Existing Protective Order (Schneider, Kelly) (Entered: 10/30/2008)
424 MOTION for Order to Modify Protective Order by Intervenor Plaintiffs Marvin G. Johnson, James T. Conway. (Schneider, Kelly) (Entered: 10/30/2008)
425 ORDER denying 424 Motion to Modify the existing Protective Order. Signed by Gregory L Frost on 10/30/08. (sem1, ) (Entered: 10/30/2008)

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11/03/2008
11/03/2008
11/03/2008
11/10/2008 12/02/2008
12/02/2008 12/02/2008 12/02/2008 12/02/2008 12/04/2008 12/04/2008 12/05/2008 12/05/2008 12/05/2008 12/05/2008 12/05/2008 12/08/2008
12/08/2008

426 NOTICE by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland re 413 Order on Motion for Protective Order Filing of Document Under Seal for In Camera Inspection (Execution Team) (Attachments: # 1 Affidavit of Terry J. Collins) (Wille, Charles) (Entered: 11/03/2008)
427 NOTICE by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland re 413 Order on Motion for Protective Order of Manual Filing of Document Under Seal for In Camera Inspection (personnel/employment files of possible relevance) (Attachments: # 1 Affidavit of Terry J. Collins) (Wille, Charles) (Entered: 11/03/2008)
428 NOTICE by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland re 413 Order on Motion for Protective Order of Manual Filing of Documents Under Seal for In Camera Inspection (personnel/employment files) (Attachments: # 1 Affidavit of Terry J. Collins) (Wille, Charles) (Entered: 11/03/2008)
429 RESPONSE in Opposition re 419 MOTION to Intervene Donald E. Ketterer as Plaintiff−Intervenor filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 11/10/2008)
430 ORDER granting 368 Jackson's Motion to Intervene; granting 377 Bethel's Motion to Intervene; granting 381 Elmore's Motion to Intervene; granting 419 Ketterer's Motion to Intervene. Signed by Gregory L Frost on 12/2/08. (sem1, ) (Entered: 12/02/2008)
431 Intervenor COMPLAINT filed by Nathaniel E Jackson. (Attachments: # 1 part 2) (sem1, ) (Entered: 12/02/2008)
432 Intervenor COMPLAINT filed by Robert W. Bethel. (Attachments: # 1 part 2) (sem1, ) (Entered: 12/02/2008)
433 Intervenor COMPLAINT filed by Phillip L Elmore. (Attachments: # 1 part 2, # 2 part 3, # 3 part 4) (sem1, ) (Entered: 12/02/2008)
434 Intervenor COMPLAINT filed by Donald E Ketterer. (Attachments: # 1 part 2) (sem1, ) (Entered: 12/02/2008)
435 ORDER granting 421 Plaintiff−Intervenor Baston's Motion for Leave to Appeal in forma pauperis. Signed by Gregory L Frost on 12/4/08. (sem1, ) (Entered: 12/04/2008)
Minute Entry for proceedings held before Gregory L Frost: Telephone Conference held on 12/4/2008 (docketed for statistical purposes only). (sem1, ) (Entered: 12/05/2008)
436 MOTION for Order to Certify Under R. 54 by Intervenor Plaintiff Clarence Carter. (Wilhelm, Joseph) (Entered: 12/05/2008)
437 MOTION for Order to Certify Under R. 54 by Intervenor Plaintiff Michael W Benge. (Porter, Randall) (Entered: 12/05/2008)
438 MOTION for Order to certify under R. 54 by Intervenor Plaintiff Johnnie Baston. (Fleming, Tyson) (Entered: 12/05/2008)
439 MOTION for Order to Certify Under R. 54 by Intervenor Plaintiff Arthur Tyler. (Sandford, Kathryn) (Entered: 12/05/2008)
440 MOTION for Order to Certify Under R. 54 by Intervenor Plaintiff Billy Slagle. (Schneider, Kelly) (Entered: 12/05/2008)
442 ORDER that the Court amends the Identified Orders Nunc Pro Tunc to include a Rule 54(b) certification that there is no just reason for the delay of an appeal. All pending motions on the docket that seek a Rule 54(b) certification are deemed resolved. Signed by Gregory L Frost on 12/8/08. (sem1, ) (Entered: 12/08/2008)
443 JUDGMENT entered pursuant to the various Opinion and Orders issued by Judge Gregory L. Frost which dismissed certain Plaintiffs from this action. (sem1, ) (Entered: 12/08/2008)

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12/09/2008 12/09/2008 12/23/2008
12/23/2008
12/23/2008 01/06/2009 01/07/2009
01/21/2009 02/03/2009
02/04/2009 02/05/2009 02/11/2009 02/21/2009 02/23/2009 02/27/2009
02/27/2009 03/13/2009

444 NOTICE of Appearance by J Eric Holloway for Defendants Terry Collins, Edwin Voorhies, Robert Taft and James Haviland (Holloway, J) (Entered: 12/09/2008)
445 ORDER regarding personnel/employment files reviewed by the Court. Signed by Gregory L Frost on 12/9/08. (sem1, ) (Entered: 12/09/2008)
446 NOTICE by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland re 413 Order on Motion for Protective Order Manual Filing of Documents under Seal for In Camera Inspection (Wille, Charles) (Entered: 12/23/2008)
447 NOTICE by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland re 413 Order on Motion for Protective Order Manual Filing of Documents under Seal for In Camera Inspection (Wille, Charles) (Entered: 12/23/2008)
Documents re 446 &447 manually filed in the Clerk's Office. (kch1) (Entered: 12/23/2008)
448 ORDER regarding the personnel/employment files of Former Team Members #19 and #20. Signed by Gregory L Frost on 1/6/09. (sem1, ) (Entered: 01/06/2009)
449 ORDER memorializing the 1/7/09 telephone conference which GRANTS the Joint Oral Motion to the Alter the Case Schedule; Non−oral hearing on the Motion to Compel is set for 2/5/2009. Oral Hearing on the Motion for a Preliminary Injunction is reset for 3/23/2009 09:00 AM in Courtroom 5 before Gregory L Frost. Signed by Gregory L Frost on 1/7/09. (sem1, ) (Entered: 01/07/2009)
450 SEALED MOTION to Compel Discovery by Intervenor Plaintiff Kenneth Biros. (Attachments: # 1 Exhibit) (er1 ) (Entered: 01/22/2009)
451 NOTICE OF MANUAL FILING OF MEMORANDUM IN OPPOSITION TO BIROS MOTION TO COMPEL DISCOVERY UNDER SEAL re 450 SEALED MOTION to Compel Discovery filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) Modified on 2/4/2009 to correct text. (kch1) (Entered: 02/03/2009)
452 Sealed Document. Memorandum in Opposition to Biros' 450 motion to compel discovery under Seal. (rew ) (Entered: 02/04/2009)
453 NUNC PRO TUNC ORDER re 1/7/09 Order and the 450 MOTION to Compel; Non−oral hearing on said motion set for 2/12/2009. Signed by Gregory L Frost on 2/5/09. (sem1, ) (Entered: 02/05/2009)
454 Sealed Document. Plaintiffs Reply Memorandum Re Motion to Compel Discovery. (rew ) (Entered: 02/11/2009)
456 Unopposed MOTION to Continue Date for Filing Brief in Support of Preliminary Injunction until 2−27−09 by Intervenor Plaintiff Kenneth Biros. (Parker, John) (Entered: 02/21/2009)
457 ORDER granting 456 Plaintiff Biros' Motion for an Extension of Time, until 2/27/09, to file his Brief in Support of his Preliminary Injunction. Signed by Judge Gregory L Frost on 2/23/09. (sem1, ) (Entered: 02/23/2009)
458 Unopposed MOTION Unopposed Motion to Serve Brief in Support of Preliminary Injunction on Defendants via Confidential E−mail Today and the Original Under Seal with the Court on Monday March2, 2009 and/or via Confidential E−mail Today by Intervenor Plaintiff Kenneth Biros. (Parker, John) (Entered: 02/27/2009)
459 ORDER granting 458 Biros' Motion to Serve and File his Brief via confidential email. Signed by Judge Gregory L Frost on 2/27/09. (sem1, ) (Entered: 02/27/2009)
461 NOTICE of Manual Filing of Defendants' Memorandum in Opposition by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) Modified on 3/16/2009 to correct text. (kch1) (Entered: 03/13/2009)

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03/13/2009 03/23/2009
03/24/2009 03/25/2009 03/26/2009 03/27/2009
04/09/2009 04/21/2009 05/11/2009

462 NOTICE of Manual Filing of Confidential Documents under Seal by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland re 461 Notice. (Wille, Charles) Modified on 3/16/2009 to correct text. (kch1) (Entered: 03/13/2009)
465 Minute Entry for proceedings held before Judge Gregory L Frost: Oral Hearing held on 3/23/2009 re 144 MOTION for Preliminary Injunction filed by Kenneth Biros; Plaintiff counsel: T Sweeney &J Parker; Defendants counsel: C Wille; C/D: S Miller; Defendants counsel submitted three oral motions in limine in which the Court heard oral argument on each motion; The Court denies each motion; Witnesses who testified: Team Member # 19, Team Member #12 and Team Member #10. (Court Reporter Denise Errett.) (sem1, ) (Entered: 03/24/2009)
466 Minute Entry for proceedings held before Judge Gregory L Frost: Oral Hearing (Day Two) held on 3/24/2009 re 144 Emergency MOTION for Preliminary Injunction filed by Kenneth Biros; Plaintiff counsel: T Sweeney &J Parker; Defendants counsel: C Wille; C/D: S Miller; Witnesses who testified Team Member #10, Stephen Huffman, James Haviland &Edwin Voorhies. (Court Reporter Denise Errett.) (sem1, ) (Entered: 03/25/2009)
467 Minute Entry for proceedings held before Judge Gregory L Frost: Oral Hearing held on 3/25/2009 (Day Three) re 144 Emergency MOTION for Preliminary Injunction filed by Kenneth Biros; Plaintiff counsel: T Sweeney &J Parker; Defendants counsel: C Wille; C/D: S Miller; Witnesses who testified: Dr. Daniel Badenhop, Dr. Richard Baumgartner, Phillip Kerns, Team Member 19 and Team Member 17. (Court Reporter Denise Errett.) (sem1, ) (Entered: 03/26/2009)
468 Minute Entry for proceedings held before Judge Gregory L Frost: Oral Hearing (Day Four) held on 3/26/2009 re 144 MOTION for Preliminary Injunction filed by Kenneth Biros; Plaintiff counsel: T Sweeney &J Parker; Defendants counsel: C Wille; C/D: S Miller; Witnesses who testified: Team Member #18, Robert Lowe and Dr. Mark Heath. (Court Reporter Denise Errett.) (sem1, ) (Entered: 03/27/2009)
469 Minute Entry for proceedings held before Judge Gregory L Frost: Motion Hearing (Day Five) held on 3/27/2009 re 144 MOTION for Preliminary Injunction filed by Kenneth Biros; Plaintiff's counsel: T Sweeney &J Parker; Defendant's counsel: C Wille; C/D: S Miller; Witnesses who testified: Dr. Mark Heath, Dr. Dirshwitz &Terry Collins; The Court admitted evidence; The Court will take the matter under advisement and issue a decision in due course. (Court Reporter Denise Errett.) (sem1, ) (Entered: 03/30/2009)
470 ORDER regarding related cases 2:09−cv−271 and 2:04−cv−1156. Signed by Judge Gregory L Frost and Judge Algenon L. Marbley and on 4/9/2009. We agree that the cases are related and the subject case should be transferred to the docket of Judge Frost. Case 2:09−cv−271 reassigned to Judge Gregory L Frost and Magistrate Judge Mark R. Abel for all further proceedings. (pes1) (Entered: 04/09/2009)
471 ORDER vacating the preliminary injunction staying Biros' execution. Signed by Judge Gregory L Frost on 4/21/09. (ksh, ) (Entered: 04/21/2009)
472 Transcript of Proceedings of Testimony of Team Member 12 held on March 23, 2009, before Judge Gregory L Frost. Court Reporter/Transcriber Denise N. Errett, Telephone number 614−719−3029. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms − Electronic Availability of Transcripts). Please read this policy carefully.

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 6/1/2009. Redacted Transcript Deadline set for 6/11/2009. Release of Transcript Restriction set for 8/10/2009. (kk2) (Entered:

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05/11/2009 05/11/2009 05/11/2009 05/11/2009

05/11/2009)
473 Transcript of Proceedings of Testimony of Edwin Voorhies held on March 24, 2009, before Judge Gregory L Frost. Court Reporter/Transcriber Denise N. Errett, Telephone number 614−719−3029. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms − Electronic Availability of Transcripts). Please read this policy carefully.
For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 6/1/2009. Redacted Transcript Deadline set for 6/11/2009. Release of Transcript Restriction set for 8/10/2009. (kk2) (Entered: 05/11/2009)
474 Transcript of Proceedings of Testimony of Team Member 17 held on March 25, 2009, before Judge Gregory L Frost. Court Reporter/Transcriber Denise N. Errett, Telephone number 614−719−3029. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms − Electronic Availability of Transcripts). Please read this policy carefully.
For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 6/1/2009. Redacted Transcript Deadline set for 6/11/2009. Release of Transcript Restriction set for 8/10/2009. (kk2) (Entered: 05/11/2009)
475 Transcript of Proceedings of Testimony of Daniel Badenhop, MD held on March 25, 2009, before Judge Gregory L Frost. Court Reporter/Transcriber Denise N. Errett, Telephone number 614−719−3029. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms − Electronic Availability of Transcripts). Please read this policy carefully.
For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 6/1/2009. Redacted Transcript Deadline set for 6/11/2009. Release of Transcript Restriction set for 8/10/2009. (kk2) (Entered: 05/11/2009)
476 Transcript of Proceedings of Testimony of Richard Bumgartner, MD held on March 25, 2009, before Judge Gregory L Frost. Court Reporter/Transcriber Denise N. Errett, Telephone number 614−719−3029. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the

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05/11/2009 05/11/2009 05/11/2009 05/11/2009

party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms − Electronic Availability of Transcripts). Please read this policy carefully.
For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 6/1/2009. Redacted Transcript Deadline set for 6/11/2009. Release of Transcript Restriction set for 8/10/2009. (kk2) (Entered: 05/11/2009)
477 Transcript of Proceedings of Testimony of Team Member 18 held on March 26, 2009, before Judge Gregory L Frost. Court Reporter/Transcriber Denise N. Errett, Telephone number 614−719−3029. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms − Electronic Availability of Transcripts). Please read this policy carefully.
For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 6/1/2009. Redacted Transcript Deadline set for 6/11/2009. Release of Transcript Restriction set for 8/10/2009. (kk2) (Entered: 05/11/2009)
478 Transcript of Proceedings of Testimony of Mark Heath, MD (Volume I) held on March 26, 2009, before Judge Gregory L Frost. Court Reporter/Transcriber Denise N. Errett, Telephone number 614−719−3029. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms − Electronic Availability of Transcripts). Please read this policy carefully.
For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 6/1/2009. Redacted Transcript Deadline set for 6/11/2009. Release of Transcript Restriction set for 8/10/2009. (kk2) (Entered: 05/11/2009)
479 Transcript of Proceedings of Continued Testimony of Mark Heath, MD (Volume II) held on March 27, 2009, before Judge Gregory L Frost. Court Reporter/Transcriber Denise N. Errett, Telephone number 614−719−3029. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms − Electronic Availability of Transcripts). Please read this policy carefully.
For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 6/1/2009. Redacted Transcript Deadline set for 6/11/2009. Release of Transcript Restriction set for 8/10/2009. (kk2) (Entered: 05/11/2009)
480 Transcript of Proceedings of Testimony of Terry Collins held on March 27, 2009, before Judge Gregory L Frost. Court Reporter/Transcriber Denise N. Errett,

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05/11/2009
05/11/2009 05/20/2009 05/20/2009 05/20/2009 05/20/2009 05/20/2009 05/20/2009 05/21/2009

Telephone number 614−719−3029. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms − Electronic Availability of Transcripts). Please read this policy carefully.
For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 6/1/2009. Redacted Transcript Deadline set for 6/11/2009. Release of Transcript Restriction set for 8/10/2009. (kk2) (Entered: 05/11/2009)
481 Transcript of Proceedings of Testimony of Mark Derschwitz, MD held on March 27, 2009, before Judge Gregory L Frost. Court Reporter/Transcriber Denise N. Errett, Telephone number 614−719−3029. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms − Electronic Availability of Transcripts). Please read this policy carefully.
For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 6/1/2009. Redacted Transcript Deadline set for 6/11/2009. Release of Transcript Restriction set for 8/10/2009. (kk2) (Entered: 05/11/2009)
482 ORDER: Preliminary Pretrial Conference set for 6/23/2009 09:00 AM in Courtroom 5 − Columbus before Judge Gregory L Frost. Rule 26 (f) Report due by 6/16/2009. Defendants shall file either separate answers to each complaint or a combined answer to all of the complaints by 6/1/09. Signed by Judge Gregory L Frost on 5/11/09. (sem1, ) (Entered: 05/11/2009)
483 NOTICE OF APPEAL as to 471 Order by Intervenor Plaintiff Kenneth Biros. (Sweeney, Timothy) (Entered: 05/20/2009)
484 NOTICE by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland FIRST INITIAL CIVIL RULE 26(A) DISCLOSURE DISCOVERY (Attachments: # 1 Exhibit DRC Protocol) (Wille, Charles) (Entered: 05/20/2009)
485 MOTION for Leave to Proceed in forma pauperis on Appeal by Intervenor Plaintiff Kenneth Biros. (Attachments: # 1 Affidavit Biros's Affidavit of Indigency) (Sweeney, Timothy) (Entered: 05/20/2009)
486 MOTION for Order to Restore Preliminary Injunction Pending Appeal to the Sixth Circuit by Intervenor Plaintiff Kenneth Biros. (Attachments: # 1 Exhibit 1, State's Motion to Set Execution Date, # 2 Exhibit 2, Biros's Opposition to State's Motion) (Sweeney, Timothy) (Entered: 05/20/2009)
487 NOTICE of Voluntary Dismissal by Intervenor Plaintiff Nicole Diar (Tkacz, Ruth) (Entered: 05/20/2009)
488 ORDER denying 486 Plaintiff Biros' Motion to Restore his Preliminary Injunction Pending Appeal. Signed by Judge Gregory L Frost on 5/20/09. (sem1, ) (Entered: 05/20/2009)
489 NOTICE of Appearance by Kelly Leann Schneider Intervenor Plaintiffs Nathaniel E Jackson, Robert W. Bethel, Donald E Ketterer, Marvin G. Johnson, James T. Conway (Schneider, Kelly) (Entered: 05/21/2009)

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05/22/2009 05/27/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/04/2009 06/08/2009 06/08/2009 06/09/2009 06/09/2009 06/09/2009 06/09/2009

490 NOTICE of Appearance by Allen L. Bohnert Intervenor Plaintiff Jonathon D. Monroe (Bohnert, Allen) (Entered: 05/22/2009)
491 ORDER granting 485 Biros' Motion for Leave to Proceed in forma pauperis on Appeal. Signed by Judge Gregory L Frost on 5/27/09. (sem1, ) (Entered: 05/27/2009)
492 Defendant's ANSWER to 432 Intervenor Complaint of Robert Bethel by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 06/01/2009)
493 Defendants ANSWER to 127 Intervenor Complaint of Kenneth Biros by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 06/01/2009)
494 Defendants' ANSWER to 228 Intervenor Complaint of Grady Brinkley by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 06/01/2009)
495 Defendants' ANSWER to 231 Intervenor Complaint of James T. Conway, III by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 06/01/2009)
496 Defendants' ANSWER to 433 Intervenor Complaint of Phillip Elmore by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 06/01/2009)
497 Defendants' ANSWER to 125 Intervenor Complaint of Jerome Henderson by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 06/01/2009)
498 Defendants' ANSWER to 431 Intervenor Complaint of Nathaniel Jackson by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 06/01/2009)
499 Defendants' ANSWER to 229 Intervenor Complaint of Marvin Johnson by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 06/01/2009)
500 Defendants' ANSWER to 434 Intervenor Complaint of Donald Ketterer by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 06/01/2009)
501 Defendants' ANSWER to 209 Intervenor Complaint of Jonathon Monroe by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 06/01/2009)
USCA Case Number 09−3604 for 483 Notice of Appeal filed by Kenneth Biros. (er1 ) (Entered: 06/04/2009)
502 Proposed Agreed Entry submitted by Intervenor Plaintiffs Nathaniel E Jackson, Robert W. Bethel, Donald E Ketterer, Marvin G. Johnson and James T. Conway. (Schneider, Kelly) Modified on 6/9/2009 (sem1, ). (Entered: 06/08/2009)
503 Proposed Pretrial Order Agreed Entry Submitted for Court Approval by Intervenor Plaintiff Phillip L Elmore. (McGarry, Kathleen) (Entered: 06/08/2009)
504 Proposed Agreed Entry submitted by Intervenor Plaintiff Jerome Henderson. (Wright, Carol) Modified on 6/9/2009 (sem1, ). (Entered: 06/09/2009)
505 Proposed Agreed Entry submitted by Intervenor Plaintiff Jonathon D. Monroe. (Bohnert, Allen) Modified on 6/9/2009 (sem1, ). (Entered: 06/09/2009)
506 Agreed Entry regarding the Protective Order for Plaintiff Phillip Elmore and Defendants. Signed by Judge Gregory L Frost on 6/9/09. (sem1, ) (Entered: 06/09/2009)
507 Agreed Entry regarding the Protective Order for Plaintiff Jerome Henderson and Defendants. Signed by Judge Gregory L Frost on 6/9/09. (sem1, ) (Entered: 06/09/2009)

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06/09/2009 06/09/2009 06/16/2009 06/16/2009
06/23/2009 06/23/2009
06/29/2009
06/29/2009
06/30/2009 07/15/2009 07/15/2009 07/15/2009 07/15/2009 07/15/2009 07/22/2009 07/28/2009 07/29/2009

508 Agreed Entry regarding the Protective Order of Plaintiff Jonathan Monroe and Defendants. Signed by Judge Gregory L Frost on 6/9/09. (sem1, ) (Entered: 06/09/2009)
509 Agreed Entry regarding the Protective Order of Plaintiffs Marvin Johnson, James Conway, Nathaniel Jackson, Robert Bethel, Donald Ketterer and the Defendants. Signed by Judge Gregory L Frost on 6/9/09. (sem1, ) (Entered: 06/09/2009)
510 RULE 26(f) REPORT of Defendants and Plaintiffs Monroe and Henderson by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Holloway, J) (Entered: 06/16/2009)
511 RULE 26(f) REPORT of Eight Plaintiffs by Intervenor Plaintiffs Nathaniel E Jackson, Robert W. Bethel, Phillip L Elmore, Donald E Ketterer, Kenneth Biros, Grady L. Brinkley, Marvin G. Johnson, James T. Conway. (Schneider, Kelly) (Entered: 06/16/2009)
Minute Entry for proceedings held before Judge Gregory L Frost: Preliminary Pretrial Conference held on 6/23/2009 (docketed for statistical purposes only). (sem1, ) (Entered: 06/23/2009)
512 PRELIMINARY PRETRIAL SCHEDULING ORDER: Plaintiffs shall file any Motion to Amend the Pleadings and/or Join Other Parties by 7/22/09. Non−oral hearing on all Motions to Amend is set for 7/31/09; Discovery due by 8/21/2009. Parties shall provide their Expert Witness List due by 7/15/2009. Dispositive Motions due by 8/28/2009. Trial to the Court set for 10/26/2009 09:00 AM in a courtroom to be determined before Judge Gregory L Frost. Non−oral hearing on all dispositive motions set for 9/21/2009. Final Pretrial Conference set for 10/19/2009 09:00 AM in Chambers before Judge Gregory L Frost.). Signed by Judge Gregory L Frost on 6/23/09. (sem1, ) (Entered: 06/23/2009)
513 NOTICE by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland re 512 Order, Set Deadlines/Hearings,,,, 413 Order on Motion for Protective Order Notice of Manual Filing of Documents Under Seal (Wille, Charles) (Entered: 06/29/2009)
514 NOTICE by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland re 512 Order, Set Deadlines/Hearings,,,, 413 Order on Motion for Protective Order Notice of Manual Filing of Documents Under Seal (Wille, Charles) (Entered: 06/29/2009)
516 ORDER regarding the personnel/employment file of Team Member #21. Signed by Judge Gregory L Frost on 6/30/09. (sem1, ) (Entered: 06/30/2009)
517 NOTICE by Intervenor Plaintiffs Nathaniel E Jackson, Robert W. Bethel, Donald E Ketterer, Marvin G. Johnson, James T. Conway of primary expert disclosure (Schneider, Kelly) (Entered: 07/15/2009)
518 NOTICE by Intervenor Plaintiff Jerome Henderson of Primary Expert Designation (Wright, Carol) (Entered: 07/15/2009)
519 NOTICE by Intervenor Plaintiffs Kenneth Biros, Grady L. Brinkley of Primary Expert Designations (Sweeney, Timothy) (Entered: 07/15/2009)
520 NOTICE by Intervenor Plaintiff Jonathon D. Monroe of Primary Expert (Stebbins, David) (Entered: 07/15/2009)
521 NOTICE by Intervenor Plaintiff Phillip L Elmore of Primary Expert Designation (Lazarow, William) (Entered: 07/15/2009)
522 Joint MOTION to Expedite Release of Transcript by Intervenor Plaintiff Jerome Henderson. (Attachments: # 1 Text of Proposed Order) (Wright, Carol) (Entered: 07/22/2009)
523 ORDER denying 522 Joint Motion to Release Transcripts. Signed by Judge Gregory L Frost on 7/28/09. (sem1, ) (Entered: 07/28/2009)
524 ORDER of USCA as to 483 Notice of Appeal: The appeal is dismissed pursuant to the appellant's motion to voluntarily dismiss the appeal. (er1 ) (Entered:

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08/14/2009 08/17/2009 08/18/2009 08/18/2009 08/25/2009
08/25/2009
08/25/2009 08/25/2009 09/02/2009 09/02/2009 09/03/2009
09/03/2009 09/03/2009 09/03/2009 09/03/2009 09/03/2009 09/03/2009 09/03/2009 09/03/2009 09/03/2009 09/03/2009

07/29/2009)
525 USCA INFORMATION COPY re 387 Notice of Appeal: The 6th Circuit Court of Appeals AFFIRMS the judgment of the District Court. (sr) (Entered: 08/14/2009)
526 USCA JUDGMENT as to 387 Notice of Appeal: The Judgment of the District Court is Affirmed. (er1 ) (Entered: 08/17/2009)
527 ORDER of USCA as to 387 Notice of Appeal: The motion of the appellant to stay execution is denied. (er1 ) (Entered: 08/18/2009)
528 MANDATE of USCA as to 387 Notice of Appeal: The Judgment of the District Court is Affirmed. No costs taxed. (er1 ) (Entered: 08/18/2009)
529 Unopposed MOTION for Extension of Time to File New date requested 9/4/2009. Joint Unopposed Motion by Plaintiff Richard Cooey. (Attachments: # 1 Text of Proposed Order Proposed Order Granting Motion for Extension of Time) (Bohnert, Allen) (Entered: 08/25/2009)
530 ORDER granting 529 Joint Motion for Extension of Time to File Dispositive Motions. Signed by Judge Gregory L Frost on 8/25/09. (sem1, ) (Entered: 08/25/2009)
Set/Reset Deadlines: Dispositive Motions now due by 9/4/2009. (sem1, ) (Entered: 08/25/2009)
531 NOTICE of filing corrected pages from the decision originally sent to the court on 8/17/09 filed by Leonard Green. (rew ) (Entered: 08/27/2009)
532 ORDER of USCA as to 391 Notice of Appeal: The Sixth Circuit AFFIRMS the judgment of the District Court. (er1 ) (Entered: 09/02/2009)
533 USCA JUDGMENT as to 391 Notice of Appeal: The Sixth Circuit AFFIRMS the judgment of the District Court. (er1 ) (Entered: 09/02/2009)
534 MOTION for Summary Judgment by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. Responses due by 9/28/2009 (Wille, Charles) (Entered: 09/03/2009)
535 DEPOSITION of Roseanna Clagg taken on 9/14/2009 by Intervenor Plaintiff Jonathon D. Monroe. (Stebbins, David) (Entered: 09/03/2009)
536 DEPOSITION of Terry Collins taken on 8/19/2009 by Intervenor Plaintiff Jonathon D. Monroe. (Stebbins, David) (Entered: 09/03/2009)
537 DEPOSITION of Phillip Kerns taken on 8/14/2009 by Intervenor Plaintiff Jonathon D. Monroe. (Stebbins, David) (Entered: 09/03/2009)
538 DEPOSITION of Ramon Perez taken on 8/19/2009 by Intervenor Plaintiff Jonathon D. Monroe. (Stebbins, David) (Entered: 09/03/2009)
539 DEPOSITION of Richard Thodore taken on 8/13/2009 by Intervenor Plaintiff Jonathon D. Monroe. (Stebbins, David) (Entered: 09/03/2009)
540 NOTICE by Intervenor Plaintiff Jonathon D. Monroe Notice of Manual Filing (Stebbins, David) (Entered: 09/03/2009)
541 Sealed Document. Deposition of Current Team Member No. 9 taken on 8/13/09 at 1:35 pm. (rew ) (Entered: 09/04/2009)
542 Sealed Document. Deposition of current Team Member No. 10 taken on 8/13/09 at 10:12 am. (rew ) (Entered: 09/04/2009)
543 Sealed Document. Deposition of current Team Member No. 17 taken on 8/19/09 at 11:21 am. (rew ) (Entered: 09/04/2009)
544 Sealed Document. Deposition of current Team Member No. 21 taken on 8/19/09 at 4:29 pm. (rew ) (Entered: 09/04/2009)

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09/04/2009 09/08/2009 09/09/2009 09/09/2009 09/11/2009 09/11/2009 09/16/2009 09/17/2009
09/17/2009 09/17/2009
09/17/2009
09/18/2009 09/18/2009
09/21/2009 09/21/2009 09/22/2009 09/22/2009

545 MOTION for Partial Summary Judgment by Intervenor Plaintiff Jonathon D. Monroe. Responses due by 9/28/2009 (Bohnert, Allen) (Entered: 09/04/2009)
546 NOTICE of Appearance by Pamela J Prude−Smithers Intervenor Plaintiffs Nathaniel E Jackson, Robert W. Bethel, Donald E Ketterer, Marvin G. Johnson, James T. Conway (Prude−Smithers, Pamela) (Entered: 09/08/2009)
547 AGREED ORDER modifying the Protective Order signed by Judge Gregory L Frost on 9/9/09. (sem1, ) (Entered: 09/09/2009)
548 RESPONSE in Opposition re 545 MOTION for Partial Summary Judgment filed by Defendants Terry Collins, Edwin Voorhies, Robert Taft, Reginald Wilkinson, James Haviland. (Wille, Charles) (Entered: 09/09/2009)
549 NOTICE by Intervenor Plaintiff Jonathon D. Monroe Notice of Manual Filing of Memorandum iin Opposition (Stebbins, David) (Entered: 09/11/2009)
550 Sealed Document. Intervenor− Plaintiffs Memorandum in Opposition to Defendants Motion for Summary Judgment (doc. 534 ). (rew ) Modified on 9/14/2009 to add link to motion. (pes1). (Entered: 09/11/2009)
551 ORDER of USCA as to 379 Notice of Appeal &385 Notice of Appeal: The district court's judgment is affirmed. (kk2) (Entered: 09/16/2009)
552 MOTION to Stay re 545 MOTION for Partial Summary Judgment, 534 MOTION for Summary Judgment, 550 Sealed Document, 548 Response in Opposition to Motion, MOTION for Order to Reopen Discovery, MOTION for Discovery, MOTION to Continue Consideration of Dispositive Motions by Intervenor Plaintiff Jonathon D. Monroe. (Bohnert, Allen) (Entered: 09/17/2009)
Minute Entry for proceedings held before Judge Gregory L Frost: Telephone Conference held on 9/17/2009 (docketed for statistical purposes only). (sem1, ) (Entered: 09/17/2009)
553 ORDER granting 552 Plaintiffs' motion to stay consideration of the pending dispositive motions, to reopen discovery, and to allow the filing of amended dispositive motions. Signed by Judge Gregory L Frost on 9/17/09. (sem1, ) (Entered: 09/17/2009)
Set Deadlines/Hearings: Any Amended Summary Judgment Motions are due by 10/14/2009. Non−oral hearing on all pending Summary Judgment Motions is set for 10/26/2009. Final Pretrial Conference set for 10/19/2009 09:00 AM in Chambers before Judge Gregory L Frost. Jury Trial set for 11/2/2009 09:00 AM (courtroom to be determined) before Judge Gregory L Frost. (sem1, ) (Entered: 09/17/2009)
554 REPLY to Response to Motion re 534 MOTION for Summary Judgment filed by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. (Wille, Charles) (Entered: 09/18/2009)
555 NOTICE by Intervenor Plaintiff Jonathon D. Monroe re 545 MOTION for Partial Summary Judgment, 554 Reply to Response to Motion, 548 Response in Opposition to Motion, 553 Order on Motion to Stay, Order on Motion for Order to, Order on Motion for Discovery, Order on Motion to Continue (Bohnert, Allen) (Entered: 09/18/2009)
556 MOTION for Preliminary Injunction by Intervenor Plaintiff Jonathon D. Monroe. (Bohnert, Allen) (Entered: 09/21/2009)
557 NOTICE of Hearing: Rule 65.1 Telephone Conference set for 9/22/2009 08:30 AM before Judge Gregory L Frost. (sem1) (Entered: 09/21/2009)
Minute Entry for proceedings held before Judge Gregory L Frost: Rule 65.1 Conference held on 9/22/2009 (docketed for statistical purposes only). (sem1) (Entered: 09/22/2009)
558 ORDER memorializing the 9/22/09 Rule 65.1 Conference and re 556 MOTION for Preliminary Injunction filed by Plaintiffs'; Preliminary Injunction Hearing set for 9/28/2009 09:00 AM (courtroom to be determined) before Judge Gregory L Frost.

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09/22/2009 09/22/2009 09/24/2009 09/28/2009 10/06/2009 10/07/2009 10/07/2009
10/09/2009 10/13/2009 10/13/2009 10/13/2009 10/13/2009
10/13/2009 10/14/2009 10/14/2009 10/14/2009 10/14/2009

Signed by Judge Gregory L Frost on 9/22/09. (sem1) (Entered: 09/22/2009)
559 ORDER adopting the briefing scheduled in C2−09−823. Signed by Judge Gregory L Frost on 9/22/09. (sem1) (Entered: 09/22/2009)
560 NOTICE of Hearing re 556 MOTION for Preliminary Injunction : Oral Hearing on said motion reset for 11/30/2009 09:00 AM (courtroom to be determined) before Judge Gregory L Frost. (sem1) (Entered: 09/22/2009)
561 ORDER of USCA as to 394 Notice of Appeal filed by Arthur Tyler − The judgment of the district court is AFFIRMED. (jr) (Entered: 09/24/2009)
562 MANDATE of USCA as to 391 Notice of Appeal: The Sixth Circuit AFFIRMS the judgment of the District Court. No taxes costs. (er1) (Entered: 09/28/2009)
563 NOTICE of Hearing: Telephone Conference set for 10/7/2009 09:00 AM before Judge Gregory L Frost (Parties will be provided a call in number and passcode via email). (sem1) (Entered: 10/06/2009)
Minute Entry for proceedings held before Judge Gregory L Frost: Telephone Conference held on 10/7/2009 (docketed for statistical purposes). (sem1) (Entered: 10/07/2009)
564 ORDER memorializing the 10/7/09 Telephone Conference; Plaintiffs shall file under seal a Motion to Compel by 10/13/09; Defendants shall file under seal a Memorandum in Opposition by 10/19/09; Non−oral hearing on said motion set for 10/20/2009. Signed by Judge Gregory L Frost on 10/7/09. (sem1) (Entered: 10/07/2009)
565 NOTICE FROM U.S. SUPREME COURT re 379 Notice of Appeal: Petition for a writ of certiorari was filed on 9/22/2009 and placed on the docket 9/28/2009 with Case # 09−6679. (er1) (Entered: 10/09/2009)
566 DEPOSITION of Terry Collins taken on 10/7/2009 by Intervenor Plaintiff Jerome Henderson. (Wright, Carol) (Entered: 10/13/2009)
567 NOTICE by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson Notice of Final Civil Rule 26(a)(3) Disclosures by Defendants (Wille, Charles) (Entered: 10/13/2009)
568 NOTICE by Intervenor Plaintiff Jerome Henderson of Manual Filing of Confidential Documents Under Seal (Wright, Carol) (Entered: 10/13/2009)
569 NOTICE by Intervenor Plaintiffs Robert W. Bethel, Kenneth Biros, Grady L. Brinkley, James T. Conway, Phillip L Elmore, Jerome Henderson, Nathaniel E Jackson, Marvin G. Johnson, Donald E Ketterer, Jonathon D. Monroe re 512 Order, Set Deadlines/Hearings,,,, Of Filing Their Consolidated Final Pretrial Order with Rule 26(a)(3) Materials (Attachments: # 1 Exhibit A. Plaintiffs' Trial Witness List, # 2 Exhibit B. Plaintiffs' Trial Exhbit List, # 3 Exhibit C. Plaintiffs List of Trial Witnesses Whose Testimony May Be Offered, in Whole or in Part, by Deposition And/or by Presenting the Witnesss Prior Testimony from the March 2009 Preliminary Injunction Hearing) (Sweeney, Timothy) (Entered: 10/13/2009)
570 Sealed Motion. Invtervenor−Plaintiffs Joint Motion to Compel Deposition of Defendant Governor Strickland. (rew) Modified on 10/15/2009 to refile as sealed motion.(pes1). (Entered: 10/14/2009)
571 Amended MOTION to Amend/Correct 534 MOTION for Summary Judgment by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. (Wille, Charles) (Entered: 10/14/2009)
572 DEPOSITION of Terry Collins taken on 10/07/2009 by Intervenor Plaintiff Jonathon D. Monroe. (Stebbins, David) (Entered: 10/14/2009)
573 DEPOSITION of Carmelita Bautista taken on 10/01/2009 by Intervenor Plaintiff Jonathon D. Monroe. (Stebbins, David) (Entered: 10/14/2009)
574 DEPOSITION of Phillip Kerns taken on 10/02/2009 by Intervenor Plaintiff Jonathon D. Monroe. (Stebbins, David) (Entered: 10/14/2009)

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10/14/2009 10/14/2009 10/14/2009 10/14/2009 10/14/2009 10/14/2009 10/14/2009 10/14/2009 10/14/2009 10/14/2009 10/14/2009 10/14/2009 10/14/2009 10/14/2009 10/14/2009 10/19/2009 10/19/2009
10/19/2009 10/20/2009 10/20/2009

575 DEPOSITION of Roseanna Clagg taken on 10/02/2009 by Intervenor Plaintiff Jonathon D. Monroe. (Stebbins, David) (Entered: 10/14/2009)
576 DEPOSITION of Charles Miller taken on 10/07/2009 by Intervenor Plaintiff Jonathon D. Monroe. (Stebbins, David) (Entered: 10/14/2009)
577 DEPOSITION of T. Austin Stout taken on 10/06/2009 by Intervenor Plaintiff Jonathon D. Monroe. (Stebbins, David) (Entered: 10/14/2009)
578 DEPOSITION of Edwin Voorhies taken on 10/06/2009 by Intervenor Plaintiff Jonathon D. Monroe. (Stebbins, David) (Entered: 10/14/2009)
579 DEPOSITION of Julie Walburn taken on 10/06/2009 by Intervenor Plaintiff Jonathon D. Monroe. (Stebbins, David) (Entered: 10/14/2009)
580 Sealed Document. Deposition of Romell Broom taken on 10/05/09. (rew) (Entered: 10/14/2009)
581 Sealed Document. Deposition of CURRENT TEAM MEMBER NO 21 Taken on 10/02/09. (rew) (Entered: 10/14/2009)
582 Sealed Document. Deposition of CURRENT TEAM MEMBER NO 17 taken on 10/02/09. (rew) (Entered: 10/14/2009)
583 NOTICE by Intervenor Plaintiff Jonathon D. Monroe Notice of Filing Confidential Depositions Under Seal (Stebbins, David) (Entered: 10/14/2009)
584 NOTICE by Intervenor Plaintiff Jonathon D. Monroe Notice of Filing Amended Motion for Summary Judgment Under Seal (Stebbins, David) (Entered: 10/14/2009)
585 Sealed Document. Deposition of CURRENT TEAM MEMBER NO 11 taken on 9/30/09. (rew) (Entered: 10/14/2009)
586 Sealed Document. Deposition of Team Member 10 taken on 10/01/09. (rew) (Entered: 10/14/2009)
587 Sealed Document. Deposition of Team Member 9 taken on 10/07/09. (rew) (Entered: 10/14/2009)
588 Sealed Document. Deposition of Current Team Member No 8 taken on 9/30/09. (rew) (Entered: 10/14/2009)
589 Sealed Motion. Intervenor − Plaintiffs Motion for Partial Summary Judgment. (rew) Modified on 10/15/2009 to refile as sealed motion. (pes1). (Entered: 10/15/2009)
Minute Entry for proceedings held before Judge Gregory L Frost: Final Pretrial Conference held on 10/19/2009 (docketed for statistical purposes only). (sem1) (Entered: 10/19/2009)
590 ORDER memorializing the 10/19/09 Final Pretrial Conference: All remaining discovery due by 6/30/2010. Trial to the Court RESET for 7/12/2010 09:00 AM in Courtroom 5 − Columbus before Judge Gregory L Frost. 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. Signed by Judge Gregory L Frost on 10/19/09. (sem1) (Entered: 10/19/2009)
591 NOTICE of Hearing: Telephone Conference set for 10/20/2009 10:30 AM before Judge Gregory L Frost. (sem1) (Entered: 10/19/2009)
Minute Entry for proceedings held before Judge Gregory L Frost: Telephone Conference held on 10/20/2009 (docketed for statistical purposes only). (sem1) (Entered: 10/20/2009)
592 NOTICE of Hearing: Telephone Conference set for 10/23/2009 01:30 PM before Judge Gregory L Frost. (sem1) (Entered: 10/20/2009)

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10/21/2009 10/23/2009 10/23/2009 10/23/2009 10/27/2009 10/27/2009 10/27/2009 10/29/2009 11/10/2009 11/12/2009 11/13/2009 11/13/2009
11/13/2009
11/18/2009 11/24/2009 11/24/2009

593 ORDER of USCA as to 396 Notice of Appeal filed by Clarence Carter − We AFFIRM the decision of the District Court. (No cost taxed) (sc1, ) (Entered: 10/21/2009)
594 NOTICE by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson re 590 Order, Set Deadlines/Hearings,, Notice of Consideration by Defendants of Changes to Defendants' Policies and Procedures for the Execution of Condemned Prisoners (Wille, Charles) (Entered: 10/23/2009)
595 MANDATE of USCA as to 394 Notice of Appeal: The judgment of the district court is AFFIRMED. No costs taxed. (er1) (Entered: 10/23/2009)
Minute Entry for proceedings held before Judge Gregory L Frost: Telephone Conference held on 10/23/2009 (docketed for statistical purposes only). (sem1) (Entered: 10/26/2009)
596 NOTICE OF APPEAL as to 590 Order, Set Deadlines/Hearings,, by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Filing fee $ 455. (Attachments: # 1 Exhibit Order Doc. 590, # 2 Filing Fee Receipt Rec. # 200COL009838) (Wille, Charles) (Entered: 10/27/2009)
USCA Case Number 09−4300 for 596 Notice of Appeal, filed by Edwin Voorhies, James Haviland, Terry Collins, Robert Taft, Reginald Wilkinson. (sct1) (Entered: 10/27/2009)
USCA Appeal Fees received $ 455 receipt number COL9838 re 596 Notice of Appeal, filed by Edwin Voorhies, James Haviland, Terry Collins, Robert Taft, Reginald Wilkinson (pes1) (Entered: 10/28/2009)
597 ORDER further memorializing the 10/19/09 Final Pretrial Conference in that the Court ORDERS that all future conferences, except for those dealing with protected discovery material, shall be held in open court and on the record. Signed by Judge Gregory L Frost on 10/29/09. (sem1) (Entered: 10/29/2009)
598 NOTICE by Intervenor Plaintiff Jonathon D. Monroe re 580 Sealed Document Notice of Manual Filing Under Seal of Substitute Transcript of Deposition of Romell Broom (Bohnert, Allen) (Entered: 11/10/2009)
600 NOTICE of Hearing: Telephone Conference set for 11/13/2009 09:00 AM before Judge Gregory L Frost (parties provided the call in number and passcode). (sem1) (Entered: 11/12/2009)
Minute Entry for proceedings held before Judge Gregory L Frost: Telephone Conference held on 11/13/2009 (docketed for statistical purposes only). (sem1) (Entered: 11/13/2009)
601 Second MOTION for Summary Judgment Defendants Second Motion For Summary Judgment With Request For Expedited Briefing Schedule by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 12/7/2009 (Attachments: # 1 Exhibit A) (Wille, Charles) (Entered: 11/13/2009)
602 ORDER denying the Request for Expedited Briefing re 601 Second MOTION for Summary Judgment Defendants Second Motion For Summary Judgment With Request For Expedited Briefing Schedule filed by Edwin Voorhies, James Haviland, Terry Collins, Robert Taft &Reginald Wilkinson; Non−oral hearing on said motion set for 12/31/2009. Signed by Judge Gregory L Frost on 11/13/09. (sem1) (Entered: 11/13/2009)
603 MANDATE of USCA as to 396 Notice of Appeal: We AFFIRM the decision of the District Court. No costs taxed. (er1) (Entered: 11/18/2009)
604 NOTICE FROM U.S. SUPREME COURT re 391 Notice of Appeal, Assignment of Case # 09−6553: Petition for writ of certiorari was filed 9/18/2009 and placed on the docket 9/18/2009. (er1) (Entered: 11/24/2009)
605 NOTICE FROM U.S. SUPREME COURT re 391 Notice of Appeal, Assignment of Case # 09−6553: The petition for a writ of certiorari is denied. (er1) (Entered: 11/24/2009)

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11/27/2009 11/30/2009 12/02/2009 12/03/2009
12/03/2009 12/03/2009
12/03/2009 12/04/2009
12/04/2009
12/04/2009 12/04/2009 12/04/2009 12/04/2009 12/04/2009 12/04/2009

606 ORDER of USCA as to 596 Notice of Appeal: The Sixth Circuit VACATES the 10/19/2009 stay issued by the District Court. (er1) (Entered: 11/27/2009)
607 NOTICE by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson Notice of Supplemental Civil Rule 26(e) Disclosure by Defendants (Attachments: # 1 Exhibit Exhibit A) (Wille, Charles) (Entered: 11/30/2009)
608 MOTION for Leave to File amended complaint Instanter under FRCP 15(a); in the alternative, Motion to supplement Instanter under FRCP 15(d) by Intervenor Plaintiff Kenneth Biros. (Attachments: # 1 Exhibit, # 2 Supplement) (Parker, John) (Entered: 12/02/2009)
609 ORDER re 608 MOTION for Leave to File amended complaint Instanter under FRCP 15(a); in the alternative, Motion to supplement Instanter under FRCP 15(d) filed by Kenneth Biros; Defendants shall file a memorandum in opposition, if any, by 9:00 a.m. on 12/4/09; Non−oral hearing on said motion set for 12/4/2009 at 09:00 AM before Judge Gregory L Frost. Signed by Judge Gregory L Frost on 12/3/09. (sem1) (Entered: 12/03/2009)
610 Emergency MOTION for Temporary Restraining Order or at the very least for an order under the all writs act staying his execution by defendants and the State of Ohio by Intervenor Plaintiff Kenneth Biros. (Attachments: # 1 Exhibit, # 2 Exhibit) (Parker, John) (Entered: 12/03/2009)
611 RESPONSE in Opposition re 608 MOTION for Leave to File amended complaint Instanter under FRCP 15(a); in the alternative, Motion to supplement Instanter under FRCP 15(d) Defendants' Memorandum in Opposition to Biros' Motion to Amend Complaint filed by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. (Attachments: # 1 Exhibit A) (Wille, Charles) (Entered: 12/03/2009)
612 Unopposed MOTION to Continue 12−9−09 Hearing to 1−11−10 by Plaintiff Richard Cooey. (Meyers, Gregory) (Entered: 12/03/2009)
613 NOTICE of Hearing re 610 Emergency MOTION for Temporary Restraining Order or at the very least for an order under the all writs act staying his execution by defendants and the State of Ohio : Oral Hearing set for 12/4/2009 02:30 PM (courtroom to be determined) before Judge Gregory L Frost. (sem1) (Entered: 12/04/2009)
614 RESPONSE in Opposition re 610 Emergency MOTION for Temporary Restraining Order or at the very least for an order under the all writs act staying his execution by defendants and the State of Ohio DEFENDANTS' MEMORANDUM IN OPPOSITION TO BIROS MOTION FOR A TEMPORARY RESTRAINING ORDER filed by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (Wille, Charles) (Entered: 12/04/2009)
Minute Entry for proceedings held before Judge Gregory L Frost: 65.1 Telephone Conference held on 12/4/2009 (docketed for statistical purposes only). (sem1) (Entered: 12/04/2009)
615 ORDER memorializing the 12/4/09 65.1 Telephone Conference. Signed by Judge Gregory L Frost on 12/4/09. (sem1) (Entered: 12/04/2009)
616 ORDER denying 612 Plaintiff's Motion to Continue the 12/9/09 hearing. Signed by Judge Gregory L Frost on 12/4/09. (sem1) (Entered: 12/04/2009)
617 ORDER granting 608 Plaintiff Biros' Motion to Amend his Complaint. Signed by Judge Gregory L Frost on 12/4/09. (sem1) (Entered: 12/04/2009)
618 AMENDED COMPLAINT against Terry Collins, James Haviland, Robert Taft, Edwin Voorhies and Reginald Wilkinson filed by Kenneth Biros. (Attachments: # 1 Exhibit) (sem1) (Entered: 12/04/2009)
619 ORDER of USCA as to 483 Notice of Appeal filed by Kenneth Biros: His petition for rehearing and rehearing enbanc does not provide a basis for staying his December 8th execution. The petition is denied. (er1) (Entered: 12/06/2009)

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 66 of 114

12/04/2009 12/04/2009
12/07/2009 12/07/2009 12/07/2009 12/07/2009

620 REVISED ORDER of USCA as to 483 Notice of Appeal filed by Kenneth Biros: His petition for rehearing and rehearing enbanc does not provide a basis for staying his December 8th execution. The petition is denied. (er1) (Entered: 12/06/2009)
623 Minute Entry for proceedings held before Judge Gregory L Frost: Oral Hearing held on 12/4/2009 re 610 Emergency MOTION for Temporary Restraining Order or at the very least for an order under the all writs act staying his execution by defendants and the State of Ohio filed by Kenneth Biros; Plaintiff Counsel: T Sweeney &J Parker; Defendant Counsel: C Wille, A Van Ho &E Holloway; C/D: S Miller; Witness who testified Dr. Mark Heath &Dr. Mark Dershwitz; The Court will take the matter under advisement and issue a decision in due course. (Court Reporter Denise Errett.) (sem1) (Entered: 12/07/2009)
621 ORDER denying 610 Intervenor Plaintiff Biros' Motion for TRO. Signed by Judge Gregory L Frost on 12/7/09. (sem1) (Entered: 12/07/2009)
622 NOTICE of Appearance by Adam Michael Van Ho for Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson (Van Ho, Adam) (Entered: 12/07/2009)
624 NOTICE OF APPEAL as to 621 Order on Motion for TRO by Intervenor Plaintiff Kenneth Biros. (Sweeney, Timothy) (Entered: 12/07/2009)
625 Transcript of Motion Hearing Proceedings held on 12/4/2009, before Judge Gregory L. Frost. Court Reporter/Transcriber Denise N. Errett, Telephone number 614−719−3029. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms − Electronic Availability of Transcripts). Please read this policy carefully.

12/07/2009 12/07/2009
12/07/2009
12/08/2009 12/08/2009 12/08/2009

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 12/28/2009. Redacted Transcript Deadline set for 1/7/2010. Release of Transcript Restriction set for 3/8/2010. (kjm1) (Entered: 12/07/2009)
626 MOTION for Leave to Appeal in forma pauperis with affidavit of indigency by Intervenor Plaintiff Kenneth Biros. (Sweeney, Timothy) (Entered: 12/07/2009)
627 ORDER granting 626 Plaintiff−Intervenor Biros' Motion for Leave to Appeal in forma pauperis and the Court cannot certify that there is no arguable factual or legal basis for Plaintiff's claims, that his appeal would be frivolous, or that his appeal is not taken in good faith. Signed by Judge Gregory L Frost on 12/7/09. (sem1) (Entered: 12/07/2009)
628 MOTION to Stay re 590 Order, Set Deadlines/Hearings,, 602 Order, Set Hearings,, 601 Second MOTION for Summary Judgment Defendants Second Motion For Summary Judgment With Request For Expedited Briefing Schedule, 589 SEALED MOTION, 594 Notice (Other), Notice (Other) Stay consideration of Previously Filed Dispositive Motions Under Rule 56(f) by Intervenor Plaintiffs Robert W. Bethel, Kenneth Biros, Grady L. Brinkley, James T. Conway, Phillip L Elmore, Jerome Henderson, Nathaniel E Jackson, Marvin G. Johnson, Donald E Ketterer, Jonathon D. Monroe. (Bohnert, Allen) (Entered: 12/07/2009)
629 Appeal Remark re 483 Notice of Appeal− Correction Page for 620 Order filed 12/4/2009: Page 8 Judge Martin dissent ruling. (er1) (Entered: 12/08/2009)
630 ORDER of USCA as to 624 Notice of Appeal: The Sixth Circuit Affirms the decision of the District Court. (er1) (Entered: 12/08/2009)
631 MOTION for Leave to File Instanter First Amended Complaint Instanter by Intervenor Plaintiff Jonathon D. Monroe. (Bohnert, Allen) (Entered: 12/08/2009)

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12/08/2009 12/09/2009 12/10/2009 12/10/2009 12/10/2009 12/10/2009
12/17/2009 12/21/2009 12/22/2009

632 MOTION for Leave to File Amended Complaint by Intervenor Plaintiff Jerome Henderson. (Wright, Carol) (Entered: 12/08/2009)
Minute Entry for proceedings held before Judge Gregory L Frost: Oral Hearing held on 12/9/2009 (docketed for statistical purposes only). (Court Reporter Denise Errett.) (sem1) (Entered: 12/09/2009)
633 Appeal Remark re 483 Notice of Appeal: Corrections on 2 pages for doc 620 . (er1) (Entered: 12/10/2009)
634 ORDER &JUDGMENT of USCA as to 624 Notice of Appeal: It is ORDERED that the motion for stay of execution is DENIED and the judgment of the District Court is AFFIRMED. (er1) (Entered: 12/10/2009)
635 ORDER of USCA as to 624 Notice of Appeal: The petition for rehearing en banc is denied. (er1) (Entered: 12/10/2009)
636 ORDER memorializing the 12/9/09 Oral Hearing: The Court was advised by the parties that they were withdrawing 534 Motion for Summary Judgment; withdrawing 545 Motion for Partial Summary Judgment; The Court denied 556 Motion for Preliminary Injunction; the Court denied 570 Motion to Compel; withdrawing 571 Motion to Amend/Correct; withdrawing 589 Motion for Summary Judgment; withdrawing 601 Motion for Summary Judgment; withdrawing 628 Motion to Stay; withdrawing 631 Motion for Leave to File Amended Complaint; withdrawing 632 Motion for Leave to File Amended Complaint; Plaintiffs' shall file Amended Complaints by 1/8/10.. Signed by Judge Gregory L Frost on 12/10/09. (sem1) (Entered: 12/10/2009)
637 ORDER of USCA as to 150 Notice of Appeal: It is ordered that the appeal be Dismissed. (er1) (Entered: 12/17/2009)
638 MANDATE of USCA as to 624 Notice of Appeal: It is ORDERED that the motion for stay of execution is DENIED and the judgment of the District Court is AFFIRMED. No costs taxed. (er1) (Entered: 12/21/2009)
639 Transcript of Proceedings held on 12/9/2009, before Judge Frost. Court Reporter/Transcriber Denise N. Errett, Telephone number 614−719−3029. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms − Electronic Availability of Transcripts). Please read this policy carefully.

12/30/2009 01/08/2010 01/08/2010 01/08/2010

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 1/12/2010. Redacted Transcript Deadline set for 1/22/2010. Release of Transcript Restriction set for 3/22/2010. (pes1) (Entered: 12/22/2009)
640 Appeal Remark re 483 Notice of Appeal: OPINION CORRECTION LETTER sent indicating revisions on pages 26, 27 and 31 to published opinion filed with the Sixth Circuit on December 7, 2009. (er1) (Entered: 12/30/2009)
641 AMENDED COMPLAINT against Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson, filed by Jerome Henderson. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit) (Wright, Carol) (Entered: 01/08/2010)
642 AMENDED COMPLAINT against Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson, filed by Jonathon D. Monroe. (Attachments: # 1 Exhibit November 30, 2009 written execution policy) (Bohnert, Allen) (Entered: 01/08/2010)
643 AMENDED COMPLAINT against Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson, filed by Robert W. Bethel. (Attachments: # 1 Exhibit 11/30 protocol) (Schneider, Kelly) (Entered: 01/08/2010)

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 68 of 114

01/08/2010 01/08/2010 01/08/2010 01/08/2010 01/08/2010
01/08/2010
01/11/2010 01/14/2010 01/22/2010 01/22/2010 01/22/2010 01/22/2010 01/22/2010 01/22/2010 01/22/2010 01/22/2010 01/25/2010

644 AMENDED COMPLAINT against Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson, filed by James T. Conway. (Attachments: # 1 Exhibit 11/30 protocol) (Schneider, Kelly) (Entered: 01/08/2010)
645 AMENDED COMPLAINT against Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson, filed by Nathaniel E Jackson. (Attachments: # 1 Exhibit 11/30 protocol) (Schneider, Kelly) (Entered: 01/08/2010)
646 AMENDED COMPLAINT against Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson, filed by Donald E Ketterer. (Attachments: # 1 Exhibit 11/30 protocol) (Schneider, Kelly) (Entered: 01/08/2010)
647 NOTICE of Voluntary Dismissal by Intervenor Plaintiff Marvin G. Johnson (Schneider, Kelly) (Entered: 01/08/2010)
648 AMENDED COMPLAINT against Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson, filed by Phillip L Elmore. (Attachments: # 1 Exhibit November 30, 2009 written execution policy) (Lazarow, William) (Entered: 01/08/2010)
649 AMENDED COMPLAINT against Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson, filed by Grady L. Brinkley. (Attachments: # 1 Exhibit 11/30/09 written execution policy) (Sweeney, Timothy) (Entered: 01/08/2010)
650 ORDER construing Marvin G. Johnson's Notice of Voluntary Dismissal as a Rule 41(a)(2) Motion.. Signed by Judge Gregory L Frost on 1/11/10. (sem1) (Entered: 01/11/2010)
651 NOTICE of Appearance by Thomas E Madden for Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson (Madden, Thomas) (Entered: 01/14/2010)
652 MOTION to Dismiss Amended Complaint by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 2/16/2010 (Wille, Charles) (Entered: 01/22/2010)
653 MOTION to Dismiss Amended Complaint by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 2/16/2010 (Wille, Charles) (Entered: 01/22/2010)
654 MOTION to Dismiss Amended Complaint by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 2/16/2010 (Wille, Charles) (Entered: 01/22/2010)
655 MOTION to Dismiss Amended Complaint by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 2/16/2010 (Wille, Charles) (Entered: 01/22/2010)
656 MOTION to Dismiss Amended Complaint by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 2/16/2010 (Wille, Charles) (Entered: 01/22/2010)
657 MOTION to Dismiss Amended Complaint by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 2/16/2010 (Wille, Charles) (Entered: 01/22/2010)
658 MOTION to Dismiss Amended Complaint by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 2/16/2010 (Wille, Charles) (Entered: 01/22/2010)
659 MOTION to Dismiss Amended Complaint by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 2/16/2010 (Wille, Charles) (Entered: 01/22/2010)
660 ORDER re 659 MOTION to Dismiss Amended Complaint filed by Edwin Voorhies, James Haviland, Terry Collins, Robert Taft, Reginald Wilkinson, 653 MOTION to Dismiss Amended Complaint filed by Edwin Voorhies, James Haviland, Terry Collins, Robert Taft, Reginald Wilkinson, 652 MOTION to

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 69 of 114

01/28/2010 02/16/2010 02/16/2010 02/16/2010 02/16/2010 02/16/2010 02/16/2010 02/16/2010 02/16/2010 02/19/2010 02/22/2010 02/23/2010 02/26/2010 03/01/2010 03/02/2010

Dismiss Amended Complaint filed by Edwin Voorhies, James Haviland, Terry Collins, Robert Taft, Reginald Wilkinson, 658 MOTION to Dismiss Amended Complaint filed by Edwin Voorhies, James Haviland, Terry Collins, Robert Taft, Reginald Wilkinson, 656 MOTION to Dismiss Amended Complaint filed by Edwin Voorhies, James Haviland, Terry Collins, Robert Taft, Reginald Wilkinson, 657 MOTION to Dismiss Amended Complaint filed by Edwin Voorhies, James Haviland, Terry Collins, Robert Taft, Reginald Wilkinson, 655 MOTION to Dismiss Amended Complaint filed by Edwin Voorhies, James Haviland, Terry Collins, Robert Taft, Reginald Wilkinson, 654 MOTION to Dismiss Amended Complaint filed by Edwin Voorhies, James Haviland, Terry Collins, Robert Taft, Reginald Wilkinson; Non−oral hearing on said motions set for 3/16/2010. Signed by Judge Gregory L Frost on 1/25/10. (sem1) (Entered: 01/25/2010)
661 ORDER of USCA as to 398 Notice of Appeal filed by Maurice Mason: The appeal is dismissed pursuant to voluntary dismissal of the appeal by the appellant. (er1) (Entered: 01/28/2010)
662 RESPONSE in Opposition re 659 MOTION to Dismiss Amended Complaint filed by Intervenor Plaintiff Donald E Ketterer. (Schneider, Kelly) (Entered: 02/16/2010)
663 RESPONSE in Opposition re 656 MOTION to Dismiss Amended Complaint filed by Intervenor Plaintiff Nathaniel E Jackson. (Schneider, Kelly) (Entered: 02/16/2010)
664 RESPONSE in Opposition re 655 MOTION to Dismiss Amended Complaint filed by Intervenor Plaintiff James T. Conway. (Schneider, Kelly) (Entered: 02/16/2010)
665 RESPONSE in Opposition re 653 MOTION to Dismiss Amended Complaint filed by Intervenor Plaintiff Robert W. Bethel. (Schneider, Kelly) (Entered: 02/16/2010)
666 RESPONSE in Opposition re 654 MOTION to Dismiss Amended Complaint filed by Intervenor Plaintiff Jonathon D. Monroe. (Stebbins, David) (Entered: 02/16/2010)
667 RESPONSE in Opposition re 652 MOTION to Dismiss Amended Complaint filed by Intervenor Plaintiff Jerome Henderson. (Wright, Carol) (Entered: 02/16/2010)
668 RESPONSE in Opposition re 658 MOTION to Dismiss Amended Complaint filed by Intervenor Plaintiff Grady L. Brinkley. (Sweeney, Timothy) (Entered: 02/16/2010)
669 RESPONSE in Opposition re 657 MOTION to Dismiss Amended Complaint filed by Intervenor Plaintiff Phillip L Elmore. (Lazarow, William) (Entered: 02/16/2010)
670 NOTICE by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson Notice of Termination of Counsel (Kanai, Matthew) (Entered: 02/19/2010)
671 MOTION to Amend/Correct 642 Amended Complaint, 666 Response in Opposition to Motion by Intervenor Plaintiff Jonathon D. Monroe. (Stebbins, David) (Entered: 02/22/2010)
672 ORDER granting 671 Plaintiff Monroe's Motion to Amend the 1/8/10 Amended Complaint. Signed by Judge Gregory L Frost on 2/23/10. (sem1) (Entered: 02/23/2010)
673 MOTION to Amend/Correct 669 Response in Opposition to Motion, 648 Amended Complaint by Intervenor Plaintiff Phillip L Elmore. (Attachments: # 1 Exhibit A) (Lazarow, William) (Entered: 02/26/2010)
674 ORDER granting 673 Plaintiff Elmore's Motion to Amend. Signed by Judge Gregory L Frost on 3/1/10. (sem1) (Entered: 03/01/2010)
675 Unopposed MOTION to Amend/Correct 649 Amended Complaint by Intervenor Plaintiff Grady L. Brinkley. (Attachments: # 1 Exhibit Wille letter) (Sweeney, Timothy) (Entered: 03/02/2010)

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03/02/2010
03/02/2010 03/02/2010 03/02/2010
03/02/2010 03/02/2010 03/02/2010
03/02/2010 03/02/2010 03/02/2010
03/02/2010
03/02/2010
03/02/2010
03/02/2010

676 REPLY to Response to Motion re 653 MOTION to Dismiss Amended Complaint Defendants Memorandum in Reply to Bethel's Memorandum in Opposition to Defendants' Motion to Dismiss Amended Complaint filed by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. (Wille, Charles) (Entered: 03/02/2010)
677 MOTION to Intervene by Intervenor Plaintiff Michael W Benge. (Attachments: # 1 Exhibit Complaint) (Schneider, Kelly) (Entered: 03/02/2010)
678 MOTION to Intervene by Intervenor Plaintiff Billy Slagle. (Attachments: # 1 Exhibit Complaint) (Schneider, Kelly) (Entered: 03/02/2010)
679 REPLY to Response to Motion re 658 MOTION to Dismiss Amended Complaint Defendants Memorandum in Reply to Brinkley's Memorandum in Opposition to Defendants' Motion to Dismiss Amended Complaint filed by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. (Wille, Charles) (Entered: 03/02/2010)
680 MOTION to Intervene by Intervenor Plaintiff William Garner. (Attachments: # 1 Exhibit Complaint) (Schneider, Kelly) (Entered: 03/02/2010)
681 Unopposed MOTION to Amend/Correct Complaint by Intervenor Plaintiffs Robert W. Bethel, James T. Conway, Nathaniel E Jackson, Donald E Ketterer. (Attachments: # 1 Exhibit A) (Schneider, Kelly) (Entered: 03/02/2010)
682 REPLY to Response to Motion re 655 MOTION to Dismiss Amended Complaint Defendants Memorandum in Reply to Conway's Memorandum in Opposition to Defendants' Motion to Dismiss Amended Complaint filed by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. (Wille, Charles) (Entered: 03/02/2010)
683 ORDER granting 675 Plaintiff Brinkley's Motion to Amend to the 1/8/10 Amended Complaint to delete Claims Five and Six. Signed by Judge Gregory L Frost on 3/2/10. (sem1) (Entered: 03/02/2010)
684 Unopposed MOTION to Amend/Correct 641 Amended Complaint by Intervenor Plaintiff Jerome Henderson. (Attachments: # 1 Exhibit) (Wright, Carol) (Entered: 03/02/2010)
685 REPLY to Response to Motion re 657 MOTION to Dismiss Amended Complaint Defendants Memorandum in Reply to Elmore's Memorandum in Opposition to Defendants' Motion to Dismiss Amended Complaint filed by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. (Wille, Charles) (Entered: 03/02/2010)
686 REPLY to Response to Motion re 652 MOTION to Dismiss Amended Complaint Defendants Memorandum in Reply to Henderson's Memorandum in Opposition to Defendants' Motion to Dismiss Amended Complaint filed by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. (Wille, Charles) (Entered: 03/02/2010)
687 REPLY to Response to Motion re 656 MOTION to Dismiss Amended Complaint Defendants Memorandum in Reply to Jackson's Memorandum in Opposition to Defendants' Motion to Dismiss Amended Complaint filed by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. (Wille, Charles) (Entered: 03/02/2010)
688 REPLY to Response to Motion re 659 MOTION to Dismiss Amended Complaint Defendants Memorandum in Reply to Ketterer's Memorandum in Opposition to Defendants' Motion to Dismiss Amended Complaint filed by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. (Wille, Charles) (Entered: 03/02/2010)
689 REPLY to Response to Motion re 654 MOTION to Dismiss Amended Complaint Defendants Memorandum in Reply to Monroe's Memorandum in Opposition to Defendants' Motion to Dismiss Amended Complaint filed by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. (Wille, Charles) (Entered: 03/02/2010)

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 71 of 114

03/03/2010 03/03/2010 03/03/2010 03/04/2010 03/10/2010 03/11/2010 03/12/2010
03/17/2010 03/17/2010
03/17/2010 03/19/2010 03/19/2010 03/23/2010
03/23/2010 03/23/2010 03/23/2010 03/23/2010 03/23/2010 03/25/2010 03/25/2010

690 ORDER granting 681 Plaintiff Conway, Bethel, Jackson and Ketterer's Motion to Amend the 1/8/10 Amended Complaint to delete Claim Five. Signed by Judge Gregory L Frost on 3/3/10. (sem1) (Entered: 03/03/2010)
691 ORDER granting 684 Plaintiff Henderson's Motion to Amend the 1/8/10 Amended Complaint to delete Claims Five and Six. Signed by Judge Gregory L Frost on 3/3/10. (sem1) (Entered: 03/03/2010)
692 ORDER of USCA as to 388 Notice of Appeal: The 6th Circuit having reviewed the appellees' motion and appellant Durr's response, the Court GRANTS the motion to dismiss. (er1) (Entered: 03/03/2010)
693 ORDER of USCA as to 420 Notice of Appeal: The Court GRANTS the motion to dismiss. (er1) (Entered: 03/04/2010)
694 ORDER of USCA as to 385 Notice of Appeal: The Court GRANTS the motion to dismiss. (er1) (Entered: 03/10/2010)
695 MOTION to Stay Discovery by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. (Wille, Charles) (Entered: 03/11/2010)
696 ORDER re 695 MOTION to Stay Discovery filed by Edwin Voorhies, James Haviland, Terry Collins, Robert Taft, Reginald Wilkinson; Plaintiffs shall file any Memoranda in Opposition by 3/17/10; No reply memorandum is permitted; Non−oral hearing on said motion set for 3/18/2010. Signed by Judge Gregory L Frost on 3/12/10. (sem1) (Entered: 03/12/2010)
697 ORDER of USCA as to 390 Notice of Appeal: The Court GRANTS the motion to dismiss. (er1) (Entered: 03/17/2010)
698 RESPONSE in Opposition re 695 MOTION to Stay Discovery Joint Brief in Opposition filed by Intervenor Plaintiffs Jerome Henderson, Jonathon D. Monroe. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4) (Bohnert, Allen) (Entered: 03/17/2010)
699 MOTION to Intervene /Michael Beukes Motion To Intervene As Plaintiff−Intervenor by Intervenor Plaintiff Michael Beuke. (Attachments: # 1 Exhibit A) (Murray, Kenneth) (Entered: 03/17/2010)
700 ORDER denying 695 Defendants' Motion to Stay Discovery. Signed by Judge Gregory L Frost on 3/19/10. (sem1) (Entered: 03/19/2010)
701 MOTION to Intervene by Intervenor Plaintiff Darryl M Durr. (Attachments: # 1 Exhibit Proposed Complaint) (McGarry, Kathleen) (Entered: 03/19/2010)
702 ORDER granting 677 Benge's Motion to Intervene; granting 678 Slagle's Motion to Intervene; granting 680 Garner's Motion to Intervene; granting 699 Beuke's Motion to Intervene; granting 701 Durr's Motion to Intervene. Signed by Judge Gregory L Frost on 3/23/10. (sem1) (Entered: 03/23/2010)
703 Intervenor COMPLAINT filed by Michael W Benge against all defendants. (sem1) (Entered: 03/23/2010)
704 Intervenor COMPLAINT filed by Billy Slagle against all defendants. (sem1) (Entered: 03/23/2010)
705 Intervenor COMPLAINT filed by Michael Beuke against all defendants. (sem1) (Entered: 03/23/2010)
706 Intervenor COMPLAINT filed by Darryl M Durr against all defendants. (sem1) (Entered: 03/23/2010)
707 Intervenor COMPLAINT filed by William Garner against all defendants. (sem1) (Entered: 03/23/2010)
708 MOTION to Intervene by Intervenor Plaintiff Clarence Carter. (Attachments: # 1 Exhibit A) (Schneider, Kelly) (Entered: 03/25/2010)
709 MOTION to Intervene by Intervenor Plaintiff Shawn Hawkins. (Attachments: # 1 Exhibit A) (Schneider, Kelly) (Entered: 03/25/2010)

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03/26/2010 03/26/2010 03/29/2010 04/05/2010 04/06/2010 04/06/2010 04/06/2010 04/06/2010 04/06/2010 04/06/2010 04/07/2010 04/07/2010 04/07/2010
04/08/2010 04/15/2010 04/15/2010

710 NOTICE by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson Defendants Notice of Manual Filing Under Seal (Wille, Charles) (Entered: 03/26/2010)
711 NOTICE by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson Defendants Notice of Manual Filing Under Seal (Wille, Charles) (Entered: 03/26/2010)
712 ORDER. Signed by Judge Gregory L Frost on 3/29/10. (kn) (Entered: 03/29/2010)
713 MOTION to Appoint Expert Mark Heath by Intervenor Plaintiff Darryl M Durr. (Attachments: # 1 Appendix Gary Order, # 2 Appendix E−mail from Expert) (McGarry, Kathleen) (Entered: 04/05/2010)
714 MOTION to Dismiss Defendants Motion to Dismiss and Motion for an Expedited Briefing Schedule by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 4/30/2010 (Wille, Charles) (Entered: 04/06/2010)
715 RESPONSE in Opposition re 713 MOTION to Appoint Expert Mark Heath Defendants Memorandum in Opposition to Durr's Motion to Appoint Expert filed by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. (Wille, Charles) (Entered: 04/06/2010)
716 MOTION to Dismiss Defendants' Motion to Dismiss by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 4/30/2010 (Wille, Charles) (Entered: 04/06/2010)
717 MOTION to Dismiss Defendants' Motion to Dismiss by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 4/30/2010 (Wille, Charles) (Entered: 04/06/2010)
718 MOTION to Dismiss Defendants' Motion to Dismiss by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 4/30/2010 (Wille, Charles) (Entered: 04/06/2010)
719 MOTION to Dismiss Defendants' Motion to Dismiss by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 4/30/2010 (Wille, Charles) (Entered: 04/06/2010)
720 ORDER denying 714 Motion for an Expedited Briefing Schedule filed by Edwin Voorhies, James Haviland, Terry Collins, Robert Taft, Reginald Wilkinson. Signed by Judge Gregory L Frost on 4/7/10. (sem1) (Entered: 04/07/2010)
721 OPINION AND ORDER granting 713 Intervenor Plaintiff Durr's Motion to Appoint Expert Dr. Mark Heath. Signed by Judge Gregory L Frost on 4/7/10. (sem1) (Entered: 04/07/2010)
722 ORDER re 718 MOTION to Dismiss Defendants' Motion to Dismiss filed by Edwin Voorhies, James Haviland, Terry Collins, Robert Taft, Reginald Wilkinson, 717 MOTION to Dismiss Defendants' Motion to Dismiss filed by Edwin Voorhies, James Haviland, Terry Collins, Robert Taft, Reginald Wilkinson, 716 MOTION to Dismiss Defendants' Motion to Dismiss filed by Edwin Voorhies, James Haviland, Terry Collins, Robert Taft, Reginald Wilkinson, 719 MOTION to Dismiss Defendants' Motion to Dismiss filed by Edwin Voorhies, James Haviland, Terry Collins, Robert Taft, Reginald Wilkinson; Non−oral hearing on said motions set for 5/24/2010. Signed by Judge Gregory L Frost on 4/7/10. (sem1) (Entered: 04/07/2010)
723 ORDER re 714 Defendants Motion to Dismiss filed by Edwin Voorhies, James Haviland, Terry Collins, Robert Taft, Reginald Wilkinson; Non−oral hearing on said motion set for 5/24/2010. Signed by Judge Gregory L Frost on 4/8/10. (sem1) (Entered: 04/08/2010)
724 MOTION for Temporary Restraining Order or Preliminary Injunction by Intervenor Plaintiff Darryl M Durr. (McGarry, Kathleen) (Entered: 04/15/2010)
725 MOTION to Seal, MOTION for Leave to File Documents under seal by Intervenor Plaintiff Darryl M Durr. (McGarry, Kathleen) (Entered: 04/15/2010)

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04/15/2010 04/15/2010 04/16/2010 04/16/2010
04/16/2010 04/16/2010 04/16/2010 04/16/2010 04/19/2010 04/20/2010 04/20/2010 04/20/2010 04/23/2010 04/23/2010 04/23/2010 04/23/2010 04/23/2010 04/27/2010 04/27/2010 04/27/2010

726 ORDER granting 725 Motion for Leave to File Documents Under Seal. Signed by Judge Gregory L Frost on 4/15/10. (sem1) (Entered: 04/15/2010)
Minute Entry for proceedings held before Judge Gregory L Frost: 65.1 Telephone Conference held on 4/15/2010 (docketed for statistical purposes only). (sem1) (Entered: 04/16/2010)
727 ORDER memoralizing the Court's 65.1 conference. Signed by Judge Gregory L Frost on 4/16/10. (kn) (Entered: 04/16/2010)
728 RESPONSE in Opposition re 724 MOTION for Temporary Restraining Order or Preliminary Injunction filed by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. (Attachments: # 1 Affidavit Greg Trout Affidavit, # 2 Appendix Durr Medical Record) (Wille, Charles) (Entered: 04/16/2010)
730 REPLY to Response to Motion re 724 MOTION for Temporary Restraining Order or Preliminary Injunction filed by Intervenor Plaintiff Darryl M Durr. (McGarry, Kathleen) (Entered: 04/16/2010)
731 ORDER denying 724 Intervenor Plaintiff Durr's Motion for TRO or Preliminary Injunction. Signed by Judge Gregory L Frost on 4/16/10. (sem1) (Entered: 04/16/2010)
732 NOTICE OF APPEAL as to 731 Order on Motion for TRO by Intervenor Plaintiff Darryl M Durr. (Attachments: # 1 Appendix Order on TRO) (McGarry, Kathleen) (Entered: 04/16/2010)
733 MOTION for Leave to Proceed in forma pauperis on appeal by Intervenor Plaintiff Darryl M Durr. (Attachments: # 1 Affidavit to proceed in forma pauperis) (McGarry, Kathleen) (Entered: 04/16/2010)
734 ORDER granting 733 Plaintiff's Motion for Leave to Proceed in forma pauperis on appeal. Signed by Judge Gregory L Frost on 4/19/10. (sem1) (Entered: 04/19/2010)
735 MOTION to Intervene by Intervenor Plaintiff Sidney Cornwell. (Attachments: # 1 Exhibit A − Complaint) (Schneider, Kelly) (Entered: 04/20/2010)
USCA Case Number 10−3467 for 732 Notice of Appeal filed by Darryl M Durr. (er1) (Entered: 04/20/2010)
736 ORDER of USCA as to 732 Notice of Appeal: The Sixth Circuit AFFIRMS the opinion and order of Judge Frost for the reasons stated in his opinion dated 4/16/2010. (er1) (Entered: 04/20/2010)
737 ORDER regarding Intervenor Plaintiffs' Kenneth Biros and Darryl Durr. Signed by Judge Gregory L Frost on 4/23/10. (sem1) (Entered: 04/23/2010)
738 ORDER granting 708 Carter's Motion to Intervene; granting 709 Hawkins' Motion to Intervene and granting 735 Cornwell's Motion to Intervene. Signed by Judge Gregory L Frost on 4/23/10. (sem1) (Entered: 04/23/2010)
739 Intervenor COMPLAINT against all defendants filed by Clarence Carter. (sem1) (Entered: 04/23/2010)
740 Intervenor COMPLAINT against all defendants filed by Shawn Hawkins. (sem1) (Entered: 04/23/2010)
741 Intervenor COMPLAINT against all defendants filed by Sidney Cornwell. (sem1) (Entered: 04/23/2010)
742 RESPONSE in Opposition re 716 MOTION to Dismiss filed by Intervenor Plaintiff Michael W Benge. (Schneider, Kelly) (Entered: 04/27/2010)
743 RESPONSE in Opposition re 718 MOTION to Dismiss filed by Intervenor Plaintiff William Garner. (Schneider, Kelly) (Entered: 04/27/2010)
744 RESPONSE in Opposition re 717 MOTION to Dismiss filed by Intervenor Plaintiff Billy Slagle. (Schneider, Kelly) (Entered: 04/27/2010)

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 74 of 114

04/28/2010
04/29/2010 04/29/2010 05/03/2010 05/03/2010 05/04/2010 05/04/2010 05/06/2010 05/06/2010 05/07/2010 05/07/2010 05/07/2010
05/07/2010 05/07/2010

745 Joint NOTICE Regarding Discovery re 700 Order on Motion to Stay by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson &Intervenor Plaintiffs Brett Hartmann, Jerome Henderson, Jonathon D. Monroe (Attachments: # 1 Exhibit 2010.04.05 Letter to Plaintiffs' Counsel, # 2 Exhibit 2010.04.08 Letter to Defendants' Counsel, # 3 Exhibit 2010.04.09 Letter to Plaintiff's Counsel, # 4 Exhibit 2010.04.19 Letter to Plaintiff's Counsel, # 5 Exhibit 2010.04.21 Letter to Defendants' Counsel, # 6 Exhibit 2010.04.22 Letter to Plaintiffs' Counsel, # 7 Exhibit 2010.04.23 Letter to Defendants' Counsel, # 8 Exhibit 2010.04.23 Letter to Plaintiffs' Counsel, # 9 Exhibit 2010.04.08 Letter to Defendants' Counsel, # 10 Exhibit 2010.04.09 Letter to Plaintiff's Counsel) (Bohnert, Allen) Modified on 4/29/2010 to clarify text (kk2). (Entered: 04/28/2010)
Minute Entry for proceedings held before Judge Gregory L Frost: Telephone Conference held on 4/29/2010 (docketed for statistical purposes only). (sem1) (Entered: 04/29/2010)
746 ORDER memorializing the 4/29/10 Telephone Status Conference. Signed by Judge Gregory L Frost on 4/29/10. (sem1) (Entered: 04/29/2010)
747 NOTICE of Appearance by Dale Andrew Baich for Intervenor Plaintiff Michael Beuke (Baich, Dale) (Entered: 05/03/2010)
748 MOTION for Leave to File /Michael Beukes Motion for Leave to Untimely File Response in Opposition to Defendants Motion to Dismiss by Intervenor Plaintiff Michael Beuke. (Attachments: # 1 Exhibit Response in Opposition to Defendants' Motion to Dismiss) (Baich, Dale) (Entered: 05/03/2010)
749 ORDER granting 748 Plaintiff Bueke's Motion for Leave to File Memorandum in Opposition to Defendants' Motion to Dismiss. Signed by Judge Gregory L Frost on 5/4/10. (sem1) (Entered: 05/04/2010)
750 RESPONSE in Opposition re 719 Defendants' Motion to Dismiss filed by Intervenor Plaintiff Michael Beuke (per the Court's 5/4/10 Order). (sem1) (Entered: 05/04/2010)
751 MOTION for Leave to File Amended Complaint by Intervenor Plaintiff Michael Beuke. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit) (Baich, Dale) (Entered: 05/06/2010)
752 MOTION for Temporary Restraining Order or a Preliminary Injunction and Request for a Hearing by Intervenor Plaintiff Michael Beuke. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit) (Baich, Dale) (Entered: 05/06/2010)
753 NOTICE of Hearing: 65.1 Telephone Conference set for 5/7/2010 11:15 AM before Judge Gregory L Frost (parties provided call in number and passcode). (sem1) (Entered: 05/07/2010)
Minute Entry for proceedings held before Judge Gregory L Frost: 65.1 Telephone Conference held on 5/7/2010 (docketed for statistical purposes only). (sem1) (Entered: 05/07/2010)
754 ORDER memorializing the 5/7/10 Rule 65.1 Conference: The Court grants 751 Plaintiff Beuke's Motion for Leave to File Amended Complaint; Defendants' shall file a Memorandum in Opposition to Plaintiff's Motion for Injunctive Relief; No Reply Memorandum is permitted; Oral hearing on said motion scheduled for 5/10/10 at 3:00 p.m. in Courtroom # 5. Signed by Judge Gregory L Frost on 5/7/10. (sem1) (Entered: 05/07/2010)
Set/Reset Hearings: Oral Hearing set for 5/10/2010 03:00 PM in Courtroom 5 − Columbus before Judge Gregory L Frost re Plaintiff Beuke's Motion for Injunctive Relief. (sem1) (Entered: 05/07/2010)
755 AMENDED COMPLAINT against all Defendants filed by Michael Beuke. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (sem1) (Entered: 05/07/2010)

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05/07/2010 05/07/2010 05/07/2010 05/10/2010
05/10/2010 05/10/2010 05/10/2010 05/10/2010
05/10/2010
05/11/2010 05/11/2010 05/12/2010 05/12/2010 05/12/2010

756 MOTION to Intervene by Intervenor Plaintiff Richard Nields. (Attachments: # 1 Exhibit) (Wright, Carol) (Entered: 05/07/2010)
757 MOTION to Reset May 10, 2010 Hearing Time re Set/Reset Hearings by Intervenor Plaintiff Michael Beuke. (Baich, Dale) (Entered: 05/07/2010)
758 MOTION for Leave to Appear Pro Hac Vice of Robin C. Konrad (Filing fee $ 200) by Intervenor Plaintiff Michael Beuke. (Attachments: # 1 Certificate of Good Standing) (Baich, Dale) (Entered: 05/07/2010)
759 RESPONSE in Opposition re 752 MOTION for Temporary Restraining Order or a Preliminary Injunction and Request for a Hearing Defendants Memorandum in Opposition to Beukes Motion for a Temporary Restraining Order or Preliminary Injunction filed by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. (Wille, Charles) (Entered: 05/10/2010)
760 ORDER granting 757 Plaintiff Beuke's Motion to Reset the 5/10/10 Oral Hearing to 2:00 p.m.. Signed by Judge Gregory L Frost on 5/10/10. (sem1) (Entered: 05/10/2010)
761 ORDER granting 756 Plaintiff Nields' Motion to Intervene. Signed by Judge Gregory L Frost on 5/10/10. (sem1) (Entered: 05/10/2010)
762 Intervenor COMPLAINT against all defendants filed by Richard Nields. (sem1) (Entered: 05/10/2010)
763 ORDER granting 758 Motion for Leave to Appear Pro Hac Vice of Robin C Konrad on behalf of defendant Michael Beuke. The fee for admission of Ms. Konrad pro hac vice is WAIVED. Signed by Magistrate Judge Mark R. Abel on 5/10/10. (rew) (Entered: 05/10/2010)
764 Minute Entry for proceedings held before Judge Gregory L Frost: Oral Hearing held on 5/10/2010 re 752 MOTION for Temporary Restraining Order or a Preliminary Injunction and Request for a Hearing filed by Michael Beuke; Plaintiff counsel: D Baich, R Konrad, A Bohnert &A McDonald; Defendants counsel: C Wille &T Madden; C/D: S Miller; Witnesses who testified for Plaintiff: Dr. Edward French &Dr. Mark Heath; Evidence admitted; Closing arguments by counsel; The Court will take the matter under advisement and issue a decision in due course. (Court Reporter Denise Errett.) (sem1) (Entered: 05/11/2010)
765 ORDER denying 752 Plaintiff Beuke's Motion for Injunctive Relief and his contingent Oral Request to Stay his Execution Pending Appeal of this decision. Signed by Judge Gregory L Frost on 5/11/10. (sem1) (Entered: 05/11/2010)
766 NOTICE OF APPEAL by Intervenor Plaintiff Michael Beuke. (Baich, Dale) (Entered: 05/11/2010)
USCA Case Number 10−3598 for 766 Notice of Appeal. (er1) (Entered: 05/12/2010)
767 MOTION for Leave to Proceed in forma pauperis /Motion for Pauper Status by Intervenor Plaintiff Michael Beuke. (Attachments: # 1 Affidavit) (Baich, Dale) (Entered: 05/12/2010)
768 Transcript of Motion Hearing Proceedings re Michael Beuke held on May 10, 2010, before Judge Gregory L Frost. Court Reporter/Transcriber Denise N. Errett, Telephone number 614−719−3029. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms − Electronic Availability of Transcripts). Please read this policy carefully.

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 76 of 114

05/13/2010 05/14/2010 05/14/2010 05/14/2010 05/17/2010 05/18/2010 05/18/2010 05/18/2010 05/18/2010 05/20/2010 05/21/2010 05/21/2010 05/21/2010 05/21/2010 05/24/2010

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 6/2/2010. Redacted Transcript Deadline set for 6/14/2010. Release of Transcript Restriction set for 8/10/2010. (kk2) (Entered: 05/12/2010)
769 NOTICE of Appearance by Allen L. Bohnert for Intervenor Plaintiff Richard Nields (Bohnert, Allen) (Entered: 05/13/2010)
770 NOTICE by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson Defendants Notice of Manual Filing Under Seal (Wille, Charles) (Entered: 05/14/2010)
771 Unopposed MOTION for Extension of Time New date requested 5/21/2010. Defendants Unopposed Motion for a Seven Day Extension of Time by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. (Wille, Charles) (Entered: 05/14/2010)
773 Mail Returned as Forward Time Exp return to Sender. Order 763 mailed to Timothy Young. (Attachments: # 1 Exhibit) (rew) (Entered: 05/17/2010)
772 ORDER finding as moot 719 Defendants' Motion to Dismiss Beuke's Complaint; finding as moot 767 Plaintiff Beuke's Motion for Leave to Proceed in forma pauperis. Signed by Judge Gregory L Frost on 5/17/10. (sem1) (Entered: 05/17/2010)
774 NOTICE by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson of Privilege Log (Attachments: # 1 Supplement Privilege Log) (Madden, Thomas) (Entered: 05/18/2010)
775 ORDER of USCA as to 766 Notice of Appeal: The Sixth Circuit AFFIRMS the judgment of the District Court and DENIES the motion for injunctive relief.(er1) (Entered: 05/18/2010)
776 MANDATE of USCA as to 732 Notice of Appeal: The Sixth Circuit AFFIRMS the opinion and order of Judge Frost for the reasons stated in his opinion dated 4/16/2010. No costs taxed. (er1) (Entered: 05/18/2010)
777 NOTICE by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson of filing additional privileged documents (Attachments: # 1 Supplement Defendant's Supplemental Privilege Log) (Wille, Charles) Modified on 5/18/2010 (sem1). (Entered: 05/18/2010)
778 ORDER of USCA as to 766 Notice of Appeal filed by Michael Beuke. Corrections to 775 . (jr1) (Entered: 05/20/2010)
779 MOTION to Dismiss re: Richard Nields by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 6/14/2010 (Wille, Charles) Modified on 5/24/2010 to clarify text (kk2). (Entered: 05/21/2010)
780 MOTION to Dismiss re: Sidney Cornwell by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 6/14/2010 (Wille, Charles) Modified on 5/24/2010 to clarify text (kk2). (Entered: 05/21/2010)
781 MOTION to Dismiss re: Shawn Hawkins by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 6/14/2010 (Wille, Charles) Modified on 5/24/2010 to clarify text (kk2). (Entered: 05/21/2010)
782 MOTION to Dismiss re: Clarence Carter by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 6/14/2010 (Wille, Charles) Modified on 5/24/2010 to clarify text (kk2). (Entered: 05/21/2010)
783 ORDER re 780 MOTION to Dismiss filed by Edwin Voorhies, James Haviland, Terry Collins, Robert Taft, Reginald Wilkinson, 779 MOTION to Dismiss filed by Edwin Voorhies, James Haviland, Terry Collins, Robert Taft, Reginald Wilkinson, 781 MOTION to Dismiss filed by Edwin Voorhies, James Haviland, Terry Collins,

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 77 of 114

05/26/2010 05/26/2010 05/27/2010 05/27/2010 06/02/2010 06/10/2010 06/10/2010 06/11/2010 06/11/2010 06/11/2010 06/25/2010
06/25/2010
06/28/2010

Robert Taft, Reginald Wilkinson, 782 MOTION to Dismiss filed by Edwin Voorhies, James Haviland, Terry Collins, Robert Taft, Reginald Wilkinson; Non−oral hearing on said motions set for 7/9/2010. Signed by Judge Gregory L Frost on 5/24/10. (sem1) (Entered: 05/24/2010)
784 STIPULATION of Dismissal of Complaint (ECF No. 762) by Intervenor Plaintiff Richard Nields &All Defendants. (Bohnert, Allen) Modified on 5/27/2010 to correct text &filers (kk2). (Entered: 05/26/2010)
785 Unopposed MOTION for Extension of Time to File Response to Defendants' Claims of Privilege and/or Protection by Intervenor Plaintiffs Jerome Henderson &Jonathon D. Monroe. New date requested 7/28/2010. (Bohnert, Allen) Modified on 5/27/2010 to clarify text (kk2). (Entered: 05/26/2010)
786 ORDER granting in part 785 Plaintiffs' Motion for Extension of Time, 6/28/10, to File Response to Privilege Log. Signed by Judge Gregory L Frost on 5/27/10. (sem1) (Entered: 05/27/2010)
Set/Reset Hearings: Non−oral hearing on privilege log dispute reset for 6/29/2010. (sem1) (Entered: 05/27/2010)
787 MANDATE of USCA as to 766 Notice of Appeal: The Sixth Circuit AFFIRMS the judgment of the District Court and DENIES the motion for injunctive relief. No cost taxed. (kjm1) (Entered: 06/02/2010)
788 NOTICE by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson Defendants Notice of Manual Filing Under Seal (Wille, Charles) (Entered: 06/10/2010)
789 *Sealed* Document for In Camera Inspection filed Manually in the Clerk's Office by Defendants. (Attachments: # 1 Disc) (kjm1) Modified on 6/14/2010 to add filers (kk2). (Entered: 06/11/2010)
790 RESPONSE in Opposition re 781 MOTION to Dismiss filed by Intervenor Plaintiff Shawn Hawkins. (Schneider, Kelly) (Entered: 06/11/2010)
791 RESPONSE in Opposition re 780 MOTION to Dismiss filed by Intervenor Plaintiff Sidney Cornwell. (Schneider, Kelly) (Entered: 06/11/2010)
792 RESPONSE in Opposition re 782 MOTION to Dismiss filed by Intervenor Plaintiff Clarence Carter. (Schneider, Kelly) (Entered: 06/11/2010)
793 ORDER terminating as moot (34) Motion for Extension of Time in case 2:09−cv−00242−GLF −EPD; granting (49) Motion to Consolidate Cases in case 2:10−cv−00027−GLF −TPK; terminating as moot (771) Motion for Extension of Time in case 2:04−cv−01156−GLF −MRA; The Court VACATES the 7/12/10 Trial Date. Signed by Judge Gregory L Frost on 6/25/10. Associated Cases: 2:04−cv−01156−GLF −MRA, 2:09−cv−00242−GLF −EPD, 2:10−cv−00027−GLF −TPK (sem1) (Entered: 06/25/2010)
Set/Reset Deadlines: Discovery due by 8/20/2010. Dispositive Motions due by 9/10/2010. Bench Trial set for 2/28/2011 09:00 AM in Courtroom 5 − Columbus before Judge Gregory L Frost. Non−oral hearing on all Dispositive Motions set for 11/5/2010. Final Pretrial Conference set for 2/11/2011 09:00 AM in Courtroom 5 − Columbus before Judge Gregory L Frost. Associated Cases: 2:04−cv−01156−GLF −MRA, 2:09−cv−00242−GLF −EPD, 2:10−cv−00027−GLF −TPK (sem1) (Entered: 06/25/2010)
794 Response re (788 in 2:04−cv−01156−GLF −MRA) Notice (Other), (746 in 2:04−cv−01156−GLF −MRA) Order, (789 in 2:04−cv−01156−GLF −MRA) Sealed Document, (774 in 2:04−cv−01156−GLF −MRA) Notice (Other), (33 in 2:09−cv−00242−GLF −EPD) Notice (Other), (32 in 2:09−cv−00242−GLF −EPD) Order, (36 in 2:09−cv−00242−GLF −EPD) Notice (Other), Notice (Other), (770 in 2:04−cv−01156−GLF −MRA) Notice (Other), (39 in 2:09−cv−00242−GLF −EPD) Notice (Other), Notice (Other), (35 in 2:09−cv−00242−GLF −EPD) Notice (Other), Notice (Other), (745 in 2:04−cv−01156−GLF −MRA) Notice (Other), Notice (Other), Notice (Other), Notice (Other), (777 in 2:04−cv−01156−GLF −MRA) Notice (Other), Notice (Other), (31 in 2:09−cv−00242−GLF −EPD)

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07/21/2010 08/02/2010
08/03/2010 08/04/2010
08/06/2010 08/06/2010 08/12/2010 08/12/2010 08/12/2010 08/12/2010 08/12/2010 08/12/2010 08/12/2010 08/12/2010 08/13/2010 08/13/2010 08/13/2010 08/13/2010

Notice (Other), Notice (Other), Notice (Other), Notice (Other) Memo in Opposition to Defendants' Privilege Log and Claims by Plaintiff Brett Hartman, Intervenor Plaintiffs Jerome Henderson, Jonathon D. Monroe. Associated Cases: 2:04−cv−01156−GLF −MRA, 2:09−cv−00242−GLF −EPD, 2:10−cv−00027−GLF −MRA (Bohnert, Allen) (Entered: 06/28/2010)
795 NOTICE by Intervenor Plaintiff William Garner executed July 13, 2010 (Schneider, Kelly) (Entered: 07/21/2010)
796 ORDER that renders as moot 718 MOTION to Dismiss filed by Edwin Voorhies, James Haviland, Terry Collins, Robert Taft and Reginald Wilkinson. Signed by Judge Gregory L Frost on 8/2/10. Associated Cases: 2:04−cv−01156−GLF −MRA, 2:09−cv−00242−GLF −EPD, 2:10−cv−00027−GLF −MRA (sem1) (Entered: 08/02/2010)
797 MOTION to Intervene by Intervenor Plaintiff Kenneth W Smith. (Attachments: # 1 Exhibit A) (Wright, Carol) (Entered: 08/03/2010)
798 RESPONSE to Motion re (797 in 2:04−cv−01156−GLF −MRA) MOTION to Intervene Defendants Response to Kenneth Smiths Motion to Intervene as Plaintiff−Intervenor filed by Defendants Terry J. Collins, Execution Team Members ##1−21, Phillip Kerns, Ted Strickland, Anonymous Execution Team Members #1−21, David Bobby, Terry J. Collins, Execution Team Member #10, Execution Team Member #17, Execution Team Member #18, Phillip Kerns, Ted Strickland, Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Associated Cases: 2:04−cv−01156−GLF −MRA, 2:09−cv−00242−GLF −EPD, 2:10−cv−00027−GLF −MRA (Wille, Charles) (Entered: 08/04/2010)
799 ORDER granting 797 Intervenor Kenneth Smith's Motion to Intervene. Signed by Judge Gregory L Frost on 8/6/10. (sem1) (Entered: 08/06/2010)
800 Intervenor COMPLAINT filed by Kenneth W Smith. (sem1) (Entered: 08/06/2010)
801 ORDER granting in part and denying in part 652 Motion to Dismiss. The Court dismisses Claims One and Two. Claims Three and Four remain pending. Signed by Judge Gregory L Frost on 8/12/10. (kn) (Entered: 08/12/2010)
802 ORDER granting in part and denying in part 653 Motion to Dismiss. Signed by Judge Gregory L Frost on 8/12/10. (kn) (Entered: 08/12/2010)
803 ORDER granting in part and denying in part 654 Motion to Dismiss. Signed by Judge Gregory L Frost on 8/12/10. (kn) (Entered: 08/12/2010)
804 ORDER granting in part and denying in part 655 Motion to Dismiss. Signed by Judge Gregory L Frost on 8/12/10. (kn) (Entered: 08/12/2010)
805 ORDER granting in part and denying in part 656 Motion to Dismiss. Signed by Judge Gregory L Frost on 8/12/10. (kn) (Entered: 08/12/2010)
806 ORDER granting in part and denying in part 657 Motion to Dismiss. Signed by Judge Gregory L Frost on 8/12/10. (kn) (Entered: 08/12/2010)
807 ORDER granting in part and denying in part 658 Motion to Dismiss. Signed by Judge Gregory L Frost on 8/12/10. (kn) (Entered: 08/12/2010)
808 ORDER granting in part and denying in part 659 Motion to Dismiss. Signed by Judge Gregory L Frost on 8/12/10. (kn) (Entered: 08/12/2010)
809 ORDER granting in part and denying in part 716 Motion to Dismiss. Signed by Judge Gregory L Frost on 8/13/10. (kn) (Entered: 08/13/2010)
810 ORDER granting in part and denying in part 717 Motion to Dismiss. Signed by Judge Gregory L Frost on 8/13/10. (kn) (Entered: 08/13/2010)
811 ORDER granting in part and denying in part 780 Motion to Dismiss. Signed by Judge Gregory L Frost on 8/13/10. (kn) (Entered: 08/13/2010)
812 ORDER granting in part and denying in part 781 Motion to Dismiss. Signed by Judge Gregory L Frost on 8/13/10. (kn) (Entered: 08/13/2010)

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08/13/2010 08/16/2010 08/17/2010
08/17/2010
08/20/2010 08/30/2010 09/03/2010 09/10/2010 09/10/2010 09/10/2010 09/10/2010

813 ORDER granting in part and denying in part 782 Motion to Dismiss. Signed by Judge Gregory L Frost on 8/13/10. (kn) (Entered: 08/13/2010)
814 ORDER regarding the Defendants' Privilege Log. Signed by Judge Gregory L Frost on 8/16/10. Associated Cases: 2:04−cv−01156−GLF −MRA, 2:09−cv−00242−GLF −EPD, 2:10−cv−00027−GLF −MRA (sem1) (Entered: 08/16/2010)
815 MOTION to Dismiss Kenneth Smith's Complaint by Defendants Terry J. Collins, Execution Team Members ##1−21, Phillip Kerns, Ted Strickland, Anonymous Execution Team Members #1−21, David Bobby, Terry J. Collins, Execution Team Member #10, Execution Team Member #17, Execution Team Member #18, Phillip Kerns, Ted Strickland, Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 9/10/2010 Associated Cases: 2:04−cv−01156−GLF −MRA, 2:09−cv−00242−GLF −EPD, 2:10−cv−00027−GLF −MRA (Wille, Charles) (Entered: 08/17/2010)
816 ORDER re (815 in 2:04−cv−01156−GLF −MRA, 47 in 2:09−cv−00242−GLF −EPD, 62 in 2:10−cv−00027−GLF −MRA) MOTION to Dismiss Kenneth Smith's Complaint filed by Execution Team Member #18, James Haviland, Anonymous Execution Team Members #1−21, Terry Collins, Ted Strickland, Phillip Kerns, Execution Team Member #17, David Bobby, Edwin Voorhies, Terry J. Collins, Execution Team Member #10, Execution Team Members ##1−21, Reginald Wilkinson, Robert Taft; Plaintiff Smith's memorandum in opposition due by 9/3/10; Defendants reply due by 9/10/10; Non−oral hearing on said motion set for 9/13/2010. Signed by Judge Gregory L Frost on 8/17/10. Associated Cases: 2:04−cv−01156−GLF −MRA, 2:09−cv−00242−GLF −EPD, 2:10−cv−00027−GLF −MRA (sem1) (Entered: 08/17/2010)
817 NOTICE by Intervenor Plaintiff Kenneth W Smith Joint Status Notice Regarding Discovery (Attachments: # 1 Affidavit Affidavit from Director Moore) Associated Cases: 2:04−cv−01156−GLF −MRA, 2:09−cv−00242−GLF −EPD, 2:10−cv−00027−GLF −MRA (Bohnert, Allen) (Entered: 08/20/2010)
818 ORDER that the Court sua sponte consolidates case C2−09−823 with C2−04−1156, C2−09−242 and C2−10−27. Signed by Judge Gregory L Frost on 8/30/10. Associated Cases: 2:04−cv−01156−GLF −MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF −MRA, 2:10−cv−00027−GLF −MRA (sem1) (Entered: 08/30/2010)
819 RESPONSE in Opposition re (815 in 2:04−cv−01156−GLF −MRA, 47 in 2:09−cv−00242−GLF −EPD, 62 in 2:10−cv−00027−GLF −MRA) MOTION to Dismiss Kenneth Smith's Complaint filed by Intervenor Plaintiff Kenneth W Smith. Associated Cases: 2:04−cv−01156−GLF −MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF −MRA, 2:10−cv−00027−GLF −MRA (Bohnert, Allen) (Entered: 09/03/2010)
820 MOTION for Summary Judgment on Broom's remaining claims by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 10/4/2010 (Attachments: # 1 Affidavit Ernie Moore, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3) (Madden, Thomas) (Entered: 09/10/2010)
821 MOTION for Summary Judgment on Baston's remaining claims by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 10/4/2010 (Attachments: # 1 Affidavit Ernie Moore, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3) (Madden, Thomas) (Entered: 09/10/2010)
822 MOTION for Summary Judgment on Benge's remaining claims by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 10/4/2010 (Attachments: # 1 Affidavit Ernie Moore, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3) (Madden, Thomas) (Entered: 09/10/2010)
823 MOTION for Summary Judgment on Bethel's remaining claims by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 10/4/2010 (Attachments: # 1 Affidavit Ernie Moore, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3) (Madden, Thomas) (Entered: 09/10/2010)

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824 MOTION for Summary Judgment on Brinkley's remaining claims by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 10/4/2010 (Attachments: # 1 Affidavit Ernie Moore, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3) (Madden, Thomas) (Entered: 09/10/2010)
825 MOTION for Summary Judgment on Carter's remaining claims by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 10/4/2010 (Attachments: # 1 Affidavit Ernie Moore, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3) (Madden, Thomas) (Entered: 09/10/2010)
826 MOTION for Summary Judgment on Conway's remaining claims by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 10/4/2010 (Attachments: # 1 Affidavit Ernie Moore, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3) (Madden, Thomas) (Entered: 09/10/2010)
827 MOTION for Summary Judgment on Cornwell's remaining claims by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 10/4/2010 (Attachments: # 1 Affidavit Ernie Moore, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3) (Madden, Thomas) (Entered: 09/10/2010)
828 MOTION for Summary Judgment on Elmore's remaining claims by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 10/4/2010 (Attachments: # 1 Affidavit Ernie Moore, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3) (Madden, Thomas) (Entered: 09/10/2010)
829 MOTION for Summary Judgment on Hartman's remaining claims by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 10/4/2010 (Attachments: # 1 Affidavit Ernie Moore, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3) (Madden, Thomas) (Entered: 09/10/2010)
830 MOTION for Summary Judgment on Hawkins' remaining claims by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 10/4/2010 (Attachments: # 1 Affidavit Ernie Moore, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3) (Madden, Thomas) (Entered: 09/10/2010)
831 MOTION for Summary Judgment on Henderson's remaining claims by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 10/4/2010 (Attachments: # 1 Affidavit Ernie Moore, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3) (Madden, Thomas) (Entered: 09/10/2010)
832 MOTION for Summary Judgment on Jackson's remaining claims by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 10/4/2010 (Attachments: # 1 Affidavit Ernie Moore, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3) (Madden, Thomas) (Entered: 09/10/2010)
833 MOTION for Summary Judgment on Ketterrer's remaining claims by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 10/4/2010 (Attachments: # 1 Affidavit Ernie Moore, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3) (Madden, Thomas) (Entered: 09/10/2010)
834 MOTION for Summary Judgment on Monroe's remaining claims by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 10/4/2010 (Attachments: # 1 Affidavit Ernie Moore, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3) (Madden, Thomas) (Entered: 09/10/2010)
835 MOTION for Summary Judgment on Slagle's remaining claims by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 10/4/2010 (Attachments: # 1 Affidavit Ernie Moore, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3) (Madden, Thomas) (Entered: 09/10/2010)
836 MOTION for Summary Judgment on Tyler's remaining claims by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 10/4/2010 (Attachments: # 1 Affidavit Ernie Moore, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3) (Madden, Thomas) (Entered: 09/10/2010)
837 REPLY to Response 819 to Motion to Dismiss Kenneth Smith's Complaint filed by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies &Reginald Wilkinson. (Madden, Thomas) Modified text and created link on

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09/17/2010 09/20/2010
09/20/2010 09/22/2010
09/22/2010 09/28/2010 10/05/2010 10/15/2010 10/15/2010

9/15/2010 (er1). (Entered: 09/10/2010)
838 Unopposed MOTION for Extension of Time New date requested 10/18/2010. and request to reschedule deadlines by Plaintiff Brett Hartman. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 09/17/2010)
839 ORDER granting (838) Motion for Extension of Time in case 2:04−cv−01156−GLF−MRA regarding the summary judgment briefing deadlines; Plaintiffs' Memoranda in Opposition are due by 10/18/10; Defendants' Reply Memoranda are due by 11/4/10; Non−oral hearing on motion is rescheduled for 11/12/10. Signed by Judge Gregory L Frost on 9/20/10. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 09/20/2010)
840 MOTION to Appoint New Counsel by Intervenor Plaintiff Romell Broom. (sem1) (Entered: 09/22/2010)
841 ORDER granting in part and denying in part (815) Defendants' Motion to Dismiss Kenneth Smith's Complaint in case 2:04−cv−01156−GLF−MRA; The Court dismisses Claims One and Two; Claims Three and Four remain pending. Signed by Judge Gregory L Frost on 9/22/10. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 09/22/2010)
Minute Entry for proceedings held before Judge Gregory L Frost: Telephone Conference held on 9/22/2010 (docketed for statistical purposes only). Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 09/22/2010)
842 MOTION for Summary Judgment in Defendants' Favor on Plaintiff Kenneth Smith's Remaining Claims by Defendants Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 10/22/2010 (Wille, Charles) (Entered: 09/28/2010)
Minute Entry for proceedings held before Judge Gregory L Frost: Telephone Discovery Conference held on 10/5/2010 (docketed for statistical purposes only). Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 10/05/2010)
844 NOTICE by Intervenor Plaintiff Michael W Benge to the Court of Suggestion of Death of Proposed Plaintiff−Intervenor Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Schneider, Kelly) (Entered: 10/15/2010)
845 Unopposed MOTION for Extension of Time to File Response/Reply as to (827 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment on Cornwell's remaining claims, (831 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment on Henderson's remaining claims, (826 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment on Conway's remaining claims, (823 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment on Bethel's remaining claims, (834 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment on Monroe's remaining claims, (842 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment in Defendants' Favor on Plaintiff Kenneth Smith's Remaining Claims, (835 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment on Slagle's remaining claims, (833 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment on Ketterrer's remaining claims, (832 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment on Jackson's remaining claims, (820 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment on Broom's remaining claims, (821 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment on Baston's

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 82 of 114

10/15/2010 10/19/2010 10/19/2010 10/20/2010

remaining claims, (828 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment on Elmore's remaining claims, (824 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment on Brinkley's remaining claims, (825 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment on Carter's remaining claims, (836 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment on Tyler's remaining claims, (829 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment on Hartman's remaining claims, (830 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment on Hawkins' remaining claims New date requested 10/20/2010. by Intervenor Plaintiff Kenneth W Smith. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 10/15/2010)
846 ORDER granting Plaintiffs' 845 Motion for an Extension of Time to respond to Defendants' Motions for Summary Judgment; Responses due by 10/20/2010; Replies due by 11/8/2010. Signed by Judge Gregory L Frost on 10/15/10. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 10/15/2010)
847 ORDER finding as moot (54) Motion for Summary Judgment in case 2:09−cv−00242−GLF −EPD; finding as moot (54) Motion for Summary Judgment in case 2:09−cv−00823−GLF−MRA; finding as moot (70) Motion for Summary Judgment in case 2:10−cv−00027−GLF−MRA; finding as moot (822) Motion for Summary Judgment in case 2:04−cv−01156−GLF−MRA regarding the claims of Plaintiff Benge. Signed by Judge Gregory L Frost on 10/19/10. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 10/19/2010)
848 ORDER denying (72) Motion to Appoint Counsel in case 2:09−cv−00242−GLF −EPD; denying (70) Motion to Appoint Counsel in case 2:09−cv−00823−GLF−MRA; denying (88) Motion to Appoint Counsel in case 2:10−cv−00027−GLF−MRA; denying (840) Motion to Appoint Counsel in case 2:04−cv−01156−GLF−MRA as to Plaintiff Broom. Signed by Judge Gregory L Frost on 10/19/10. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 10/19/2010)
849 RESPONSE in Opposition re (827 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment on Cornwell's remaining claims, (831 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment on Henderson's remaining claims, (826 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment on Conway's remaining claims, (823 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment on Bethel's remaining claims, (834 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment on Monroe's remaining claims, (842 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment in Defendants' Favor on Plaintiff Kenneth Smith's Remaining Claims, (835 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment on Slagle's remaining claims, (822 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment on Benge's remaining claims, (833 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment on Ketterrer's remaining claims, (832 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment on Jackson's remaining claims, (820 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment on Broom's remaining claims, (821 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment on Baston's remaining claims, (828 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment on Elmore's remaining claims, (824 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment on Brinkley's remaining claims, (825 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment on Carter's remaining claims, (836 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment on Tyler's remaining claims, (829 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment on Hartman's remaining claims, (830 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment on Hawkins' remaining claims Consolidated Memo in Opposition to Defendants Motions for

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Summary Judgment filed by Intervenor Plaintiff Kenneth W Smith. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 10/20/2010)
850 RESPONSE in Opposition re (842 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment in Defendants' Favor on Plaintiff Kenneth Smith's Remaining Claims Exhibits 6−16 to Plaintiffs' Consolidated Memo in Opposition to Defendants' Motions for Summary Judgment filed by Intervenor Plaintiff Kenneth W Smith. (Attachments: # 1 Exhibit Exhibit 6, # 2 Exhibit Exhibit 7, # 3 Exhibit Exhibit 8, # 4 Exhibit Exhibit 9, # 5 Exhibit Exhibit 10, # 6 Exhibit Exhibit 11, # 7 Exhibit Exhibit 12, # 8 Exhibit Exhibit 13, # 9 Exhibit Exhibit 14, # 10 Exhibit Exhibit 15, # 11 Exhibit Exhibit 16) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 10/20/2010)
851 RESPONSE in Opposition re (842 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment in Defendants' Favor on Plaintiff Kenneth Smith's Remaining Claims Exhibit 17−18 to Plaintiffs Consolidated Memorandum in Opposition to Defendants' Motions for Summary Judgment filed by Intervenor Plaintiff Kenneth W Smith. (Attachments: # 1 Exhibit Exhibit 17, # 2 Exhibit Exhibit 18) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 10/20/2010)
852 RESPONSE in Opposition re (842 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment in Defendants' Favor on Plaintiff Kenneth Smith's Remaining Claims Exhibits 20−21 and 28 in support of Plaintiffs Consolidated Memorandum in Opposition to Defendants' Motions for Summary Judgment filed by Intervenor Plaintiff Kenneth W Smith. (Attachments: # 1 Exhibit Exhibit 20, # 2 Exhibit Exhibit 21, # 3 Exhibit Exhibit 28) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 10/20/2010)
853 RESPONSE in Opposition re (842 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment in Defendants' Favor on Plaintiff Kenneth Smith's Remaining Claims Exhibits 29−43 in support of Plaintiffs' Consolidated Memorandum in Opposition to Defendants' Motions for Summary Judgment filed by Intervenor Plaintiff Kenneth W Smith. (Attachments: # 1 Exhibit Exhibit 29, # 2 Exhibit Exhibit 30, # 3 Exhibit Exhibit 31, # 4 Exhibit Exhibit 32, # 5 Exhibit Exhibit 33, # 6 Exhibit Exhibit 34, # 7 Exhibit Exhibit 35, # 8 Exhibit Exhibit 36, # 9 Exhibit Exhibit 37, # 10 Exhibit Exhibit 38, # 11 Exhibit Exhibit 39, # 12 Exhibit Exhibit 40, # 13 Exhibit Exhibit 41, # 14 Exhibit Exhibit 42, # 15 Exhibit Exhibit 43) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 10/21/2010)
854 RESPONSE in Opposition re (842 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment in Defendants' Favor on Plaintiff Kenneth Smith's Remaining Claims Exhibit 19 in support of Plaintiffs' Consolidated Memorandum in Opposition to Defendants' Motions for Summary Judgment filed by Intervenor Plaintiff Kenneth W Smith. (Attachments: # 1 Exhibit Exhibit 19−Part A, # 2 Exhibit Exhibit 19−Part B, # 3 Exhibit Exhibit 19−Part C, # 4 Exhibit Exhibit 19−Part D, # 5 Exhibit Exhibit 19−Part E, # 6 Exhibit Exhibit 19−Part F, # 7 Exhibit Exhibit 19−Part G) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 10/21/2010)
855 RESPONSE in Opposition re (845 in 2:04−cv−01156−GLF−MRA, 76 in 2:09−cv−00823−GLF−MRA, 93 in 2:10−cv−00027−GLF−MRA, 77 in 2:09−cv−00242−GLF −EPD) Unopposed MOTION for Extension of Time to File Response/Reply as to (827 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment on Cornwell's remaining claims, (831 in

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 84 of 114

10/21/2010 10/21/2010 10/22/2010 11/01/2010 11/04/2010 11/08/2010
11/12/2010

2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment on Henders Exhibit 22 in support of Plaintiffs' Consolidated Memorandum in Opposition to Defendants' Motions for Summary Judgment filed by Intervenor Plaintiff Kenneth W Smith. (Attachments: # 1 Exhibit Exhibit 22−Part A, # 2 Exhibit Exhibit 22−Part B) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 10/21/2010)
856 RESPONSE in Opposition re (842 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment in Defendants' Favor on Plaintiff Kenneth Smith's Remaining Claims Exhibit 23 and 24 in support of Plaintiffs' Consolidated Memorandum in Opposition to Defendants' Motions for Summary Judgment filed by Intervenor Plaintiff Kenneth W Smith. (Attachments: # 1 Exhibit Exhibit 23, # 2 Exhibit Exhibit 24−Part A, # 3 Exhibit Exhibit 24−Part B, # 4 Exhibit Exhibit 24−Part C) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 10/21/2010)
857 RESPONSE in Opposition re (842 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment in Defendants' Favor on Plaintiff Kenneth Smith's Remaining Claims Exhibits 25−27 in support of Plaintiffs' Consolidated Memorandum in Opposition to Defendants' Motions for Summary Judgment filed by Intervenor Plaintiff Kenneth W Smith. (Attachments: # 1 Exhibit Exhibit 25, # 2 Exhibit Exhibit 26−Part A, # 3 Exhibit Exhibit 26−Part B, # 4 Exhibit Exhibit 27−Part A, # 5 Exhibit Exhibit 27−Part B) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 10/21/2010)
858 Supplemental Memorandum Supporting re (840 in 2:04−cv−01156−GLF−MRA) MOTION to Appoint Counsel (72 in 2:09−cv−00242−GLF −EPD) (88 in 2:10−cv−00027−GLF−MRA) filed by Plaintiff Romell Broom (filed in companion cases per Judge Frost's chambers direction). Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 10/25/2010)
859 MOTION to Appoint New Counsel filed by Plaintiff Romell Broom. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 11/02/2010)
860 ORDER granting in part and denying in part (91) Plaintiff Broom's Motion to Appoint New Counsel; Attorney Gregory W. Meyers of the Ohio Public Defender has agreed to represent Broom in this consolidated action. Signed by Judge Gregory L Frost on 11/4/10. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 11/04/2010)
861 REPLY to Response to Motion re (90 in 2:10−cv−00027−GLF−MRA) MOTION for Summary Judgment Defendants Motion for Summary Judgment in Defendants' Favor on Plaintiff Kenneth Smith's Remaining Claims Defendants Memorandum In Reply To "Plaintiff's Consolidated Memorandum In Opposition To Defendants' Motions For Summary Judgment" filed by Defendants Terry J. Collins, Execution Team Members ##1−21, Phillip Kerns, Ted Strickland, Anonymous Execution Team Members #1−21, David Bobby, Terry J. Collins, Execution Team Member #10, Execution Team Member #17, Execution Team Member #18, Phillip Kerns, Ted Strickland, Terry Collins, John/Jane Doe #1, John/Jane Doe #10, John/Jane Doe #11, John/Jane Doe #12, John/Jane Doe #2, John/Jane Doe #3, John/Jane Doe #4, John/Jane Doe #5, John/Jane Doe #6, John/Jane Doe #7, John/Jane Doe #8, John/Jane Doe #9, Phil Kerns, Ted Strickland, Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. (Attachments: # 1 Affidavit Affidavit and Attachments) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Wille, Charles) (Entered: 11/08/2010)
862 MOTION for Leave to File Instanter Sur−reply to Defendants' Motions for Summary Judgment by Intervenor Plaintiff Kenneth W Smith. (Attachments: # 1

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01/25/2011

Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 11/12/2010)
863 ORDER granting 862 Plaintiffs' Motion for Leave to File Sur−Reply regarding Defendants' Motions for Summary Judgment. Signed by Judge Gregory L Frost on 11/15/10. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 11/15/2010)
864 Plaintiffs' Sur−Reply filed regarding Defendants' Motions for Summary Judgment. (Attachments: # 1 Exhibit in support of Sur−Reply) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 11/15/2010)
865 NOTICE by Defendants Terry J. Collins, Execution Team Members ##1−21, Phillip Kerns, Ted Strickland Defendants Notice of Modification of O.D.R.C. Written Directive 01−Com−11, Effective November 15, 2010 (Attachments: # 1 Exhibit Modified O.D.R.C. Written Directive 01−Com−11) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Wille, Charles) (Entered: 11/18/2010)
Minute Entry for proceedings held before Judge Gregory L Frost: Telephone Conference held on 1/20/2011 (docketed for statistical purposes only). (Court Reporter Denise Errett.) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 01/21/2011)
866 Unopposed MOTION for Extension of Time New date requested 2/4/2011. Plaintiffs' Motion for Extension of Time and/or Stay of Deadline to File Motions in Limine by Intervenor Plaintiff Kenneth W Smith. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 01/21/2011)
867 MOTION in Limine Plaintiffs' Consolidated Motion in Limine by Intervenor Plaintiff Kenneth W Smith. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 01/21/2011)
868 MOTION for Leave to File Defendants Motion for Leave to File Answer Instanter to Plaintiffs Amended Complaint by Defendants Terry J. Collins, Execution Team Members ##1−21, Phillip Kerns, Ted Strickland, Anonymous Execution Team Members #1−21, David Bobby, Terry J. Collins, Execution Team Member #10, Execution Team Member #17, Execution Team Member #18, Phillip Kerns, Ted Strickland, Terry Collins, John/Jane Doe #1, John/Jane Doe #10, John/Jane Doe #11, John/Jane Doe #12, John/Jane Doe #2, John/Jane Doe #3, John/Jane Doe #4, John/Jane Doe #5, John/Jane Doe #6, John/Jane Doe #7, John/Jane Doe #8, John/Jane Doe #9, Phil Kerns, Ted Strickland, Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. (Attachments: # 1 Exhibit 1−Baston Answer, # 2 Exhibit 2−Bethel Answer, # 3 Exhibit 3−Brinkley Answer, # 4 Exhibit 4−Broom Answer, # 5 Exhibit 5−Carter Answer, # 6 Exhibit 6−Conway Answer, # 7 Exhibit 7−Cornwell Answer, # 8 Exhibit 8−Elmore Answer, # 9 Exhibit 9−Harman Answer, # 10 Exhibit 10−Hawkins Answer, # 11 Exhibit 11−Henderson Answer, # 12 Exhibit 12−Jackson Answer, # 13 Exhibit 13−Ketterer Answer, # 14 Exhibit 14−Monroe Answer, # 15 Exhibit 15−Slagle Answer, # 16 Exhibit 16−Smith Answer, # 17 Exhibit 17−Tyler Answer) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Wille, Charles) (Entered: 01/24/2011)
869 ORDER re (116 in 2:10−cv−00027−GLF−MRA, 868 in 2:04−cv−01156−GLF−MRA, 99 in 2:09−cv−00823−GLF−MRA, 100 in 2:09−cv−00242−GLF −EPD) MOTION for Leave to File Defendants Motion for

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 86 of 114

01/26/2011 01/27/2011 01/28/2011
01/28/2011

Leave to File Answer Instanter to Plaintiffs Amended Complaint filed by Execution Team Member #18, Anonymous Execution Team Members #1−21, Phil Kerns, Terry Collins, Ted Strickland, John/Jane Doe #8, Execution Team Member #17, John/Jane Doe #1, David Bobby, John/Jane Doe #2, John/Jane Doe #9, Terry J. Collins, John/Jane Doe #12, John/Jane Doe #3, John/Jane Doe #10, Execution Team Members ##1−21, John/Jane Doe #11, Robert Taft, James Haviland, Phillip Kerns, John/Jane Doe #7, Edwin Voorhies, John/Jane Doe #6, Execution Team Member #10, John/Jane Doe #5, Reginald Wilkinson and John/Jane Doe #4; Plaintiffs shall file any memoranda in opposition by 1/27/11; Defendants shall file a reply memorandum by 1/28/11; Non−oral hearing on said motion set for 1/31/2011. Signed by Judge Gregory L Frost on 1/25/11. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 01/25/2011)
870 NOTICE of Hearing: Status Conference set for 2/1/2011 12:00 PM in Chambers before Judge Gregory L Frost. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 01/26/2011)
871 RESPONSE in Opposition re (116 in 2:10−cv−00027−GLF−MRA) MOTION for Leave to File Defendants Motion for Leave to File Answer Instanter to Plaintiffs Amended Complaint filed by Intervenor Plaintiff Kenneth W Smith. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 01/27/2011)
872 REPLY to Response to Motion re (116 in 2:10−cv−00027−GLF−MRA, 868 in 2:04−cv−01156−GLF−MRA, 99 in 2:09−cv−00823−GLF−MRA, 100 in 2:09−cv−00242−GLF −EPD) MOTION for Leave to File Defendants Motion for Leave to File Answer Instanter to Plaintiffs Amended Complaint Defendants Memorandum in Reply to Memorandum in Opposition to Defendants' Motion for Leave to File Answer Instanter filed by Defendants Terry J. Collins, Execution Team Members ##1−21, Phillip Kerns, Ted Strickland, Anonymous Execution Team Members #1−21, David Bobby, Terry J. Collins, Execution Team Member #10, Execution Team Member #17, Execution Team Member #18, Phillip Kerns, Ted Strickland, Terry Collins, John/Jane Doe #1, John/Jane Doe #10, John/Jane Doe #11, John/Jane Doe #12, John/Jane Doe #2, John/Jane Doe #3, John/Jane Doe #4, John/Jane Doe #5, John/Jane Doe #6, John/Jane Doe #7, John/Jane Doe #8, John/Jane Doe #9, Phil Kerns, Ted Strickland, Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Wille, Charles) (Entered: 01/28/2011)
873 ORDER granting in part and denying in part (52) Motion for Summary Judgment; granting in part and denying in part (53) Motion for Summary Judgment; granting in part and denying in part (55) Motion for Summary Judgment; granting in part and denying in part (56) Motion for Summary Judgment; granting in part and denying in part (57) Motion for Summary Judgment; granting in part and denying in part (58) Motion for Summary Judgment; granting in part and denying in part (59) Motion for Summary Judgment; granting in part and denying in part (60) Motion for Summary Judgment; granting in part and denying in part (61) Motion for Summary Judgment; granting in part and denying in part (62) Motion for Summary Judgment; granting in part and denying in part (63) Motion for Summary Judgment; granting in part and denying in part (64) Motion for Summary Judgment; granting in part and denying in part (65) Motion for Summary Judgment; granting in part and denying in part (66) Motion for Summary Judgment; granting in part and denying in part (67) Motion for Summary Judgment; granting in part and denying in part (68) Motion for Summary Judgment; granting in part and denying in part (74) Motion for Summary Judgment; granting (98) Motion for Extension of Time; denying (99) Motion in Limine; granting (100) Motion for Leave to File in case 2:09−cv−00242−GLF −EPD; granting in part and denying in part (52) Motion for Summary Judgment; granting in part and denying in part (53) Motion for Summary Judgment; granting

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01/28/2011 01/28/2011

in part and denying in part (55) Motion for Summary Judgment; granting in part and denying in part (56) Motion for Summary Judgment; granting in part and denying in part (57) Motion for Summary Judgment; granting in part and denying in part (58) Motion for Summary Judgment; granting in part and denying in part (59) Motion for Summary Judgment; granting in part and denying in part (60) Motion for Summary Judgment; granting in part and denying in part (61) Motion for Summary Judgment; granting in part and denying in part (62) Motion for Summary Judgment; granting in part and denying in part (63) Motion for Summary Judgment; granting in part and denying in part (64) Motion for Summary Judgment; granting in part and denying in part (65) Motion for Summary Judgment; granting in part and denying in part (66) Motion for Summary Judgment; granting in part and denying in part (67) Motion for Summary Judgment; granting in part and denying in part (68) Motion for Summary Judgment; granting in part and denying in part (73) Motion for Summary Judgment; granting (97) Motion for Extension of Time; denying (98) Motion in Limine; granting (99) Motion for Leave to File in case 2:09−cv−00823−GLF−MRA; granting in part and denying in part (68) Motion for Summary Judgment; granting in part and denying in part (69) Motion for Summary Judgment; granting in part and denying in part (71) Motion for Summary Judgment; granting in part and denying in part (72) Motion for Summary Judgment; granting in part and denying in part (73) Motion for Summary Judgment; granting in part and denying in part (74) Motion for Summary Judgment; granting in part and denying in part (75) Motion for Summary Judgment; granting in part and denying in part (76) Motion for Summary Judgment; granting in part and denying in part (77) Motion for Summary Judgment; granting in part and denying in part (78) Motion for Summary Judgment; granting in part and denying in part (79) Motion for Summary Judgment; granting in part and denying in part (80) Motion for Summary Judgment; granting in part and denying in part (81) Motion for Summary Judgment; granting in part and denying in part (82) Motion for Summary Judgment; granting in part and denying in part (83) Motion for Summary Judgment; granting in part and denying in part (84) Motion for Summary Judgment; granting in part and denying in part (90) Motion for Summary Judgment; granting (114) Motion for Extension of Time; denying (115) Motion in Limine; granting (116) Motion for Leave to File in case 2:10−cv−00027−GLF−MRA; granting in part and denying in part (820) Motion for Summary Judgment; granting in part and denying in part (821) Motion for Summary Judgment; granting in part and denying in part (823) Motion for Summary Judgment; granting in part and denying in part (824) Motion for Summary Judgment; granting in part and denying in part (825) Motion for Summary Judgment; granting in part and denying in part (826) Motion for Summary Judgment; granting in part and denying in part (827) Motion for Summary Judgment; granting in part and denying in part (828) Motion for Summary Judgment; granting in part and denying in part (829) Motion for Summary Judgment; granting in part and denying in part (830) Motion for Summary Judgment; granting in part and denying in part (831) Motion for Summary Judgment; granting in part and denying in part (832) Motion for Summary Judgment; granting in part and denying in part (833) Motion for Summary Judgment; granting in part and denying in part (834) Motion for Summary Judgment; granting in part and denying in part (835) Motion for Summary Judgment; granting in part and denying in part (836) Motion for Summary Judgment; granting in part and denying in part (842) Motion for Summary Judgment; granting (866) Motion for Extension of Time or a Stay of the Motions in Limine; denying (867) Motion in Limine; granting (868) Motion for Leave to File Answers Instanter in case 2:04−cv−01156−GLF−MRA. Signed by Judge Gregory L Frost on 1/28/11. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 01/28/2011)
874 ANSWER to 55 Baston's Intervenor Complaint filed by All Defendants. (sem1) (Entered: 01/28/2011)
875 ANSWER to 643 Bethel's Intervenor Complaint filed by All Defendants. (sem1) (Entered: 01/28/2011)

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 88 of 114

01/28/2011 01/28/2011 01/28/2011 01/28/2011 01/28/2011 01/28/2011 01/28/2011 01/28/2011 01/28/2011 01/28/2011 01/28/2011 01/28/2011 01/28/2011 01/28/2011 01/28/2011 02/01/2011
02/01/2011
02/07/2011

876 ANSWER to 649 Brinkley's Intervenor Complaint filed by All Defendants. (sem1) (Entered: 01/28/2011)
877 ANSWER to 207 Broom's Intervenor Complaint filed by All Defendants. (sem1) (Entered: 01/28/2011)
878 ANSWER to 739 Carter's Intervenor Complaint filed by All Defendants. (sem1) (Entered: 01/28/2011)
879 ANSWER to 644 Conway's Intervenor Complaint filed by All Defendants. (sem1) (Entered: 01/28/2011)
880 ANSWER to 741 Cornwell's Intervenor Complaint filed by All Defendants. (sem1) (Entered: 01/28/2011)
881 ANSWER to 648 Elmore's Intervenor Complaint filed by All Defendants. (sem1) (Entered: 01/28/2011)
882 ANSWER to 269 Hartman's Intervenor Complaint filed by All Defendants. (sem1) (Entered: 01/28/2011)
883 ANSWER to 740 Hawkins' Intervenor Complaint filed by All Defendants. (sem1) (Entered: 01/28/2011)
884 ANSWER to 641 Henderson's Intervenor Complaint filed by All Defendants. (sem1) (Entered: 01/28/2011)
885 ANSWER to 645 Jackson's Intervenor Complaint filed by All Defendants. (sem1) (Entered: 01/28/2011)
886 ANSWER to 646 Ketterer's Intervenor Complaint filed by All Defendants. (sem1) (Entered: 01/28/2011)
887 ANSWER to 642 Monroe's Intervenor Complaint filed by All Defendants. (sem1) (Entered: 01/28/2011)
888 ANSWER to 704 Slagle's Intervenor Complaint filed by All Defendants. (sem1) (Entered: 01/28/2011)
889 ANSWER to 800 Smith's Intervenor Complaint filed by All Defendants. (sem1) (Entered: 01/28/2011)
890 ANSWER to 56 Tyler's Intervenor Complaint filed by All Defendants. (sem1) (Entered: 01/28/2011)
Minute Entry for proceedings held before Judge Gregory L Frost: In−Court Status Conference held on 2/1/2011 (docketed for statistical purposes only). (Court Reporter Denise Errett.) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 02/01/2011)
891 ORDER memorializing the 2/1/11 In−Court Status Conference: Discovery due by 5/6/2011. Dispositive Motions due by 5/27/2011. Bench Trial set for 10/31/2011 09:00 AM in Courtroom 5 − Columbus before Judge Gregory L Frost. Non−oral hearing on all Dispositive Motions set for 7/8/2011. Final Pretrial Conference set for 10/14/2011 12:00 PM in Chambers before Judge Gregory L Frost. Signed by Judge Gregory L Frost on 2/1/11. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 02/01/2011)
892 NOTICE by Defendants Terry J. Collins, Execution Team Members ##1−21, Phillip Kerns, Ted Strickland, Anonymous Execution Team Members #1−21, David Bobby, Terry J. Collins, Execution Team Member #10, Execution Team Member #17, Execution Team Member #18, Phillip Kerns, Ted Strickland, Terry Collins, John/Jane Doe #1, John/Jane Doe #10, John/Jane Doe #11, John/Jane Doe #12, John/Jane Doe #2, John/Jane Doe #3, John/Jane Doe #4, John/Jane Doe #5, John/Jane Doe #6, John/Jane Doe #7, John/Jane Doe #8, John/Jane Doe #9, Phil Kerns, Ted Strickland, Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson Defendants Notice of Substitution of Parties Under Fed. R. Civ. P. 25(d) Associated Cases: 2:04−cv−01156−GLF−MRA,

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 89 of 114

02/07/2011
02/11/2011
02/18/2011 02/18/2011 02/24/2011 02/25/2011 02/25/2011 03/03/2011

2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Wille, Charles) (Entered: 02/07/2011)
893 NOTICE by Defendants Terry J. Collins, Execution Team Members ##1−21, Phillip Kerns, Ted Strickland, Anonymous Execution Team Members #1−21, David Bobby, Terry J. Collins, Execution Team Member #10, Execution Team Member #17, Execution Team Member #18, Phillip Kerns, Ted Strickland, Terry Collins, John/Jane Doe #1, John/Jane Doe #10, John/Jane Doe #11, John/Jane Doe #12, John/Jane Doe #2, John/Jane Doe #3, John/Jane Doe #4, John/Jane Doe #5, John/Jane Doe #6, John/Jane Doe #7, John/Jane Doe #8, John/Jane Doe #9, Phil Kerns, Ted Strickland, Terry Collins, James Haviland, Robert Taft, Edwin Voorhies, Reginald Wilkinson Defendants Notice of Modification of O.D.R.C. Written Directive 01−COM−11, Effective March 9, 2011 (Attachments: # 1 Exhibit A−Revised Directive 01−COM−11) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Wille, Charles) (Entered: 02/07/2011)
894 Transcript of Telephone Conference held on 1/20/11, before Judge Gregory L Frost. Court Reporter/Transcriber Denise N Errett, Telephone number 614−719−3029. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms − Electronic Availability of Transcripts). Please read this policy carefully.
For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 3/4/2011. Redacted Transcript Deadline set for 3/14/2011. Release of Transcript Restriction set for 5/12/2011. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (jr1) (Entered: 02/11/2011)
895 AMENDED COMPLAINT against All Defendants, filed by Johnnie Baston, Romell Broom, Shawn Hawkins, Arthur Tyler, Billy Slagle, Donald E Ketterer, Robert W. Bethel, Clarence Carter, Nathaniel E Jackson, James T. Conway.Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Barnhart, Robert) (Entered: 02/18/2011)
896 AMENDED COMPLAINT against All Defendants, filed by Brett Hartman, Jerome Henderson, Grady L. Brinkley, Phillip L Elmore, Kenneth W Smith, Jonathon D. Monroe.Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF −EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 02/18/2011)
897 NOTICE of Voluntary Dismissal by Intervenor Plaintiff Nathaniel E Jackson Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Porter, Randall) (Entered: 02/24/2011)
898 Defendants Answer to the Amended Complaint on Behalf of Plaintiffs Smith, Hartman, Henderson, Monroe, Elmore and Brinkley ANSWER to 896 Amended Complaint, filed by All Defendants. (Wille, Charles) (Entered: 02/25/2011)
899 Defendants Answer to Amended Complaint on Behalf of Plaintiffs Johnnie Baston, Robert Bethel, Romell Broom, Clarence Carter, James Conway, Shawn Hawkins, Donald Ketterer, Billy Slagle, and Arthur Tyler ANSWER to 895 Amended Complaint, filed by All Defendants. (Wille, Charles) (Entered: 02/25/2011)
900 Joint MOTION Order dismissing Carter with prejudice to be effective 12:01 am April 13, 2011 by Intervenor Plaintiff Clarence Carter. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD,

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 90 of 114

03/03/2011 03/04/2011 03/22/2011
05/06/2011 05/09/2011 05/10/2011

2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Meyers, Gregory) Modified text on 3/3/2011 (sem1). (Entered: 03/03/2011)
901 Joint MOTION for Order dismissing Baston with prejudice effective at 12:01 a.m. March 11, 2011 by Intervenor Plaintiff Johnnie Baston. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Meyers, Gregory) Modified text on 3/3/2011 (sem1). (Entered: 03/03/2011)
902 ORDER granting (900)(901) Joint Motions to dismiss all claims by Plaintiffs Carter and Baston in case 2:04−cv−01156−GLF−MRA; The Clerk shall terminate Baston as a party to this litigation effectice 12:01 a.m. on March 11, 2011; The Clerk shall terminate Carter as a party to this litigation effective 12:01 a.m. on April 13, 2011. Signed by Judge Gregory L Frost on 3/4/11. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 03/04/2011)
903 NOTICE by Defendants Terry J. Collins, Execution Team Members ##1−21, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Anonymous Execution Team Members #1−21, David Bobby, Terry J. Collins, Execution Team Member #10, Execution Team Member #17, Execution Team Member #18, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, John/Jane Doe #1, John/Jane Doe #10, John/Jane Doe #11, John/Jane Doe #12, John/Jane Doe #2, John/Jane Doe #3, John/Jane Doe #4, John/Jane Doe #5, John/Jane Doe #6, John/Jane Doe #7, John/Jane Doe #8, John/Jane Doe #9, John Kasich, Phil Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, James Haviland, John Kasich, Gary Mohr, Donald Morgan, Robert Taft, Edwin Voorhies, Reginald Wilkinson DEFENDANTS NOTICE OF MODIFICATION OF O.D.R.C. WRITTEN DIRECTIVE 01−COM−11, EFFECTIVE April 11, 2011 (Attachments: # 1 Exhibit WRITTEN DIRECTIVE 01−COM−11) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Madden, Thomas) (Entered: 03/22/2011)
904 MOTION for Extension of Time to Complete Discovery New date requested 5/27/2011. by Intervenor Plaintiff Kenneth W Smith. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 05/06/2011)
905 ORDER re (153 in 2:10−cv−00027−GLF−MRA) MOTION for Extension of Time to Complete Discovery filed by Kenneth W Smith; Defendants response to said motion due by 5/11/11; Non−oral hearing on said motion set for 5/12/2011. Signed by Judge Gregory L Frost on 5/9/11. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 05/09/2011)
906 RESPONSE in Opposition re (153 in 2:10−cv−00027−GLF−MRA) MOTION for Extension of Time to Complete Discovery New date requested 5/27/2011. Defendants Memorandum in Opposition to Plaintiff Smith's Motion for Enlargement of Time to Conduct Discovery filed by Defendants Terry J. Collins, Execution Team Members ##1−21, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Anonymous Execution Team Members #1−21, David Bobby, Terry J. Collins, Execution Team Member #10, Execution Team Member #17, Execution Team Member #18, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, John/Jane Doe #1, John/Jane Doe #10, John/Jane Doe #11, John/Jane Doe #12, John/Jane Doe #2, John/Jane Doe #3, John/Jane Doe #4, John/Jane Doe #5, John/Jane Doe #6, John/Jane Doe #7, John/Jane Doe #8, John/Jane Doe #9, John Kasich, Phil Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, James Haviland, John Kasich, Gary Mohr, Donald Morgan, Robert Taft, Edwin Voorhies, Reginald Wilkinson. (Attachments: # 1 Exhibit A−Letter Dated 8−20−10, # 2 Exhibit B−Letter Dated 4−11−11, # 3 Exhibit C−Letter Dated 4−22−11, # 4 Exhibit D−Letter Dated 4−27−11, # 5 Exhibit E−Declaration of Dr. Mark Heath, # 6 Exhibit F−Settlement

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 91 of 114

05/10/2011 05/10/2011 05/10/2011 05/11/2011 05/11/2011
05/11/2011
05/13/2011

Agreement) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Wille, Charles) (Entered: 05/10/2011)
907 MOTION for Leave to File Second Amended Complaint by Intervenor Plaintiff Kenneth W Smith. (Attachments: # 1 Exhibit Proposed Second Amended Complaint, # 2 Exhibit DRC Policy 01−COM−11 effective April 11, 2011) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 05/10/2011)
908 MOTION for Temporary Restraining Order and Preliminary Injunction staying execution by Intervenor Plaintiff Kenneth W Smith. (Attachments: # 1 Exhibit Informal report from Dr. Paul Spring, # 2 Exhibit Timeline for Baston execution, # 3 Exhibit Timeline for Carter execution) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 05/10/2011)
909 NOTICE of Hearing: Telephone Conference set for 5/11/2011 08:00 AM before Judge Gregory L Frost (parties provided with call−in number and passcode). Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 05/10/2011)
Minute Entry for proceedings held before Judge Gregory L Frost: Telephone Conference held on 5/11/2011 (docketed for statistical purposes only). (Court Reporter Denise Errett.) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 05/11/2011)
910 RESPONSE to Motion re (156 in 2:10−cv−00027−GLF−MRA) MOTION for Leave to File Second Amended Complaint Defendants' Memorandum in Response to Plaintiff Smith's Motion for Leave to File a Second Amended Complaint filed by Defendants Terry J. Collins, Execution Team Members ##1−21, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Anonymous Execution Team Members #1−21, David Bobby, Terry J. Collins, Execution Team Member #10, Execution Team Member #17, Execution Team Member #18, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, John/Jane Doe #1, John/Jane Doe #10, John/Jane Doe #11, John/Jane Doe #12, John/Jane Doe #2, John/Jane Doe #3, John/Jane Doe #4, John/Jane Doe #5, John/Jane Doe #6, John/Jane Doe #7, John/Jane Doe #8, John/Jane Doe #9, John Kasich, Phil Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, James Haviland, John Kasich, Gary Mohr, Donald Morgan, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Wille, Charles) (Entered: 05/11/2011)
911 ORDER memorializing the 5/11/11 Telephone Conference re MOTION for Leave to File Second Amended Complaint filed by Kenneth W Smith and MOTION for Temporary Restraining Order and Preliminary Injunction staying execution filed by Kenneth W Smith; Defendants' Memorandum in Opposition to the Motion to Amend shall be filed by 5/12/11; No reply will be permitted; Non−oral hearing on the Motion to Amend set for 5/13/2011. Oral Hearing on the Motion for Temporary Restraining Order and Preliminary Injunction set for 6/29/2011 09:00 AM in Courtroom 5 − Columbus before Judge Gregory L Frost.. Signed by Judge Gregory L Frost on 5/11/11. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 05/11/2011)
912 ORDER denying (904) Plaintiff Smith's Motion for Extension of Time to Complete Discovery and granting (907) Plaintiff Smith's Motion for Leave to File Second Amended Complaint in case 2:04−cv−01156−GLF−MRA. Signed by Judge Gregory L Frost on 5/13/11. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 05/13/2011)

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 92 of 114

05/13/2011 05/17/2011 05/18/2011 05/20/2011 05/27/2011
05/27/2011
05/27/2011
05/31/2011

913 SECOND AMENDED COMPLAINT against All Defendants filed by Kenneth W Smith per the Court's 5/13/11 Order. (Attachments: # 1 Exhibit A)Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 05/13/2011)
914 MOTION to Intervene by Intervenor Plaintiff Daniel Lee Bedford. (Attachments: # 1 Exhibit Proposed Complaint) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Wright, Carol) Modified on 5/18/2011 to modify text (sem1). (Entered: 05/17/2011)
915 ORDER finding as moot (914) Bedford's Motion to Intervene in case 2:04−cv−01156−GLF−MRA. Signed by Judge Gregory L Frost on 5/18/11. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 05/18/2011)
916 Defendants' ANSWER to 913 Amended Complaint, Defendants' Answer to the Plaintiff Kenneth Smith's Second Amended Complaint filed by All Defendants. (Wille, Charles) (Entered: 05/20/2011)
917 MOTION for Summary Judgment Defendants' Motion for Summary Judgment in Defendants' Favor on Amended Complaint of Plaintiffs Bethel, Broom, Conway, Hawkins, Ketterer, Slagle and Tyler by Defendants Terry Collins, James Haviland, John Kasich, Gary Mohr, Donald Morgan, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 6/20/2011 (Attachments: # 1 Exhibit 1− Execution Protocol 01−Com−11, # 2 Exhibit 2−Settlement Agreement, # 3 Exhibit 3−Expert Report of Mark Dershwitz, # 4 Exhibit 4−Affidivat of Edwin C. Voorhies, Jr.) (Wille, Charles) (Entered: 05/27/2011)
918 MOTION for Summary Judgment Defendants' Motion for Summary Judgment in Defendants' Favor on Amended Complaint of Plaintiffs Brett Hartman, Jerome Henderson, Jonathon Monroe, Phillip L. Elmore, and Grady L. Brinkley by Defendants Terry Collins, James Haviland, John Kasich, Gary Mohr, Donald Morgan, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 6/20/2011 (Attachments: # 1 Exhibit 1− Execution Protocol 01−Com−11, # 2 Exhibit 2−Settlement Agreement, # 3 Exhibit 3−Expert Report of Mark Dershwitz, # 4 Exhibit 4−Affidivat of Edwin C. Voorhies, Jr.) (Wille, Charles) (Entered: 05/27/2011)
919 MOTION for Summary Judgment Defendants' Motion for Summary Judgment in Defendants' Favor on Amended Complaint of Plaintiff Kenneth W. Smith by Defendants Terry Collins, James Haviland, John Kasich, Gary Mohr, Donald Morgan, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Responses due by 6/20/2011 (Attachments: # 1 Exhibit 1− Execution Protocol 01−Com−11, # 2 Exhibit 2−Settlement Agreement, # 3 Exhibit 3−Expert Report of Mark Dershwitz, # 4 Exhibit 4−Affidivat of Edwin C. Voorhies, Jr.) (Wille, Charles) (Attachment 1 replaced on 6/17/2011) (ss). (Attachment 2 replaced on 6/17/2011) (ss). (Attachment 3 replaced on 6/17/2011) (ss). (Attachment 4 replaced on 6/17/2011) (ss). (Entered: 05/27/2011)
920 RESPONSE in Opposition re (157 in 2:10−cv−00027−GLF−MRA) MOTION for Temporary Restraining Order and Preliminary Injunction staying execution of Inmate Kenneth Smith filed by Defendants Terry J. Collins, Execution Team Members ##1−21, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Anonymous Execution Team Members #1−21, David Bobby, Terry J. Collins, Execution Team Member #10, Execution Team Member #17, Execution Team Member #18, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, John/Jane Doe #1, John/Jane Doe #10, John/Jane Doe #11, John/Jane Doe #12, John/Jane Doe #2, John/Jane Doe #3, John/Jane Doe #4, John/Jane Doe #5, John/Jane Doe #6, John/Jane Doe #7, John/Jane Doe #8, John/Jane Doe #9, John Kasich, Phil Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, James Haviland, John Kasich, Gary Mohr, Donald Morgan, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Madden, Thomas)

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 93 of 114

05/31/2011 06/16/2011 06/17/2011
06/20/2011 06/20/2011 06/20/2011 06/20/2011
06/20/2011

(Entered: 05/31/2011)
921 NOTICE of Appearance by Sharon A Hicks for Intervenor Plaintiff Kenneth W Smith Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Hicks, Sharon) (Entered: 05/31/2011)
922 STIPULATION of Dismissal by Intervenor Plaintiff Shawn Hawkins. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Barnhart, Robert) (Entered: 06/16/2011)
923 REPLY to Response to Motion re (157 in 2:10−cv−00027−GLF−MRA) MOTION for Temporary Restraining Order and Preliminary Injunction staying execution filed by Intervenor Plaintiff Kenneth W Smith. (Attachments: # 1 Exhibit Letter between counsel dated 2011.04.08, # 2 Exhibit Letter between counsel dated 2011.04.21, # 3 Exhibit Letter between counsel dated 2011.04.22, # 4 Exhibit Letter between counsel dated 2011.04.26, # 5 Exhibit Letter between counsel dated 2011.04.27, # 6 Exhibit Letter between counsel dated 2011.05.19, # 7 Exhibit Letter between counsel dated 2011.05.24, # 8 Exhibit Letter between counsel dated 2011.05.27, # 9 Exhibit Letter between counsel dated 2011.06.02, # 10 Exhibit Letter between counsel dated 2011.06.06, # 11 Exhibit Letter between counsel dated 2011.06.08) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 06/17/2011)
924 RESPONSE in Opposition re (166 in 2:10−cv−00027−GLF−MRA) MOTION for Summary Judgment filed by Defendants 5−27−11 filed by Intervenor Plaintiffs Robert W. Bethel, Romell Broom, James T. Conway, Donald E Ketterer, Billy Slagle, Arthur Tyler. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Barnhart, Robert) (Entered: 06/20/2011)
925 RESPONSE in Opposition re (919 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment Defendants' Motion for Summary Judgment in Defendants' Favor on Amended Complaint of Plaintiff Kenneth W. Smith filed by Intervenor Plaintiff Kenneth W Smith. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 06/20/2011)
926 RESPONSE in Opposition re (918 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment Defendants' Motion for Summary Judgment in Defendants' Favor on Amended Complaint of Plaintiffs Brett Hartman, Jerome Henderson, Jonathon Monroe, Phillip L. Elmore, and Grady L. Brinkley filed by Intervenor Plaintiff Jonathon D. Monroe. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 06/20/2011)
927 RESPONSE in Opposition re (918 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment Defendants' Motion for Summary Judgment in Defendants' Favor on Amended Complaint of Plaintiffs Brett Hartman, Jerome Henderson, Jonathon Monroe, Phillip L. Elmore, and Grady L. Brinkley, (919 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment Defendants' Motion for Summary Judgment in Defendants' Favor on Amended Complaint of Plaintiff Kenneth W. Smith Joint Exhibits 1−10 filed by Intervenor Plaintiff Kenneth W Smith. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6, # 7 Exhibit Exhibit 7, # 8 Exhibit Exhibit 8, # 9 Exhibit Exhibit 9, # 10 Exhibit Exhibit 10) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 06/20/2011)
928 RESPONSE in Opposition re (918 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment Defendants' Motion for Summary Judgment in Defendants' Favor on Amended Complaint of Plaintiffs Brett Hartman, Jerome Henderson, Jonathon Monroe, Phillip L. Elmore, and Grady L. Brinkley, (919 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment Defendants'

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 94 of 114

06/20/2011 06/20/2011 06/20/2011 06/21/2011

Motion for Summary Judgment in Defendants' Favor on Amended Complaint of Plaintiff Kenneth W. Smith Joint Exhibits 11−20 filed by Intervenor Plaintiff Kenneth W Smith. (Attachments: # 1 Exhibit Exhibit 11, # 2 Exhibit Exhibit 12, # 3 Exhibit Exhibit 13, # 4 Exhibit Exhibit 14, # 5 Exhibit Exhibit 15, # 6 Exhibit Exhibit 16, # 7 Exhibit Exhibit 17, # 8 Exhibit Exhibit 18, # 9 Exhibit Exhibit 19, # 10 Exhibit Exhibit 20) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 06/20/2011)
929 RESPONSE in Opposition re (918 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment Defendants' Motion for Summary Judgment in Defendants' Favor on Amended Complaint of Plaintiffs Brett Hartman, Jerome Henderson, Jonathon Monroe, Phillip L. Elmore, and Grady L. Brinkley, (919 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment Defendants' Motion for Summary Judgment in Defendants' Favor on Amended Complaint of Plaintiff Kenneth W. Smith Joint Exhibits 21−30 filed by Intervenor Plaintiff Kenneth W Smith. (Attachments: # 1 Exhibit Exhibit 21, # 2 Exhibit Exhibit 22, # 3 Exhibit Exhibit 23, # 4 Exhibit Exhibit 24, # 5 Exhibit Exhibit 25, # 6 Exhibit Exhibit 26, # 7 Exhibit Exhibit 27, # 8 Exhibit Exhibit 28, # 9 Exhibit Exhibit 29, # 10 Exhibit Exhibit 30) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 06/20/2011)
930 RESPONSE in Opposition re (918 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment Defendants' Motion for Summary Judgment in Defendants' Favor on Amended Complaint of Plaintiffs Brett Hartman, Jerome Henderson, Jonathon Monroe, Phillip L. Elmore, and Grady L. Brinkley, (919 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment Defendants' Motion for Summary Judgment in Defendants' Favor on Amended Complaint of Plaintiff Kenneth W. Smith Joint Exhibits 31−40 filed by Intervenor Plaintiff Kenneth W Smith. (Attachments: # 1 Exhibit Exhibit 31, # 2 Exhibit Exhibit 32, # 3 Exhibit Exhibit 33, # 4 Exhibit Exhibit 34, # 5 Exhibit Exhibit 35, # 6 Exhibit Exhibit 36, # 7 Exhibit Exhibit 37, # 8 Exhibit Exhibit 38, # 9 Exhibit Exhibit 39, # 10 Exhibit Exhibit 40) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 06/20/2011)
931 RESPONSE in Opposition re (918 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment Defendants' Motion for Summary Judgment in Defendants' Favor on Amended Complaint of Plaintiffs Brett Hartman, Jerome Henderson, Jonathon Monroe, Phillip L. Elmore, and Grady L. Brinkley, (919 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment Defendants' Motion for Summary Judgment in Defendants' Favor on Amended Complaint of Plaintiff Kenneth W. Smith Joint Exhibits 41−50 filed by Intervenor Plaintiff Kenneth W Smith. (Attachments: # 1 Exhibit Exhibit 41, # 2 Exhibit Exhibit 42, # 3 Exhibit Exhibit 43, # 4 Exhibit Exhibit 44, # 5 Exhibit Exhibit 45, # 6 Exhibit Exhibit 46, # 7 Exhibit Exhibit 47, # 8 Exhibit Exhibit 48, # 9 Exhibit Exhibit 49, # 10 Exhibit Exhibit 50) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 06/21/2011)
932 RESPONSE in Opposition re (918 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment Defendants' Motion for Summary Judgment in Defendants' Favor on Amended Complaint of Plaintiffs Brett Hartman, Jerome Henderson, Jonathon Monroe, Phillip L. Elmore, and Grady L. Brinkley, (919 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment Defendants' Motion for Summary Judgment in Defendants' Favor on Amended Complaint of Plaintiff Kenneth W. Smith Joint Exhibits 51−60 filed by Intervenor Plaintiff Kenneth W Smith. (Attachments: # 1 Exhibit Exhibit 51, # 2 Exhibit Exhibit 52, # 3 Exhibit Exhibit 53, # 4 Exhibit Exhibit 54, # 5 Exhibit Exhibit 55, # 6 Exhibit Exhibit 56, # 7 Exhibit Exhibit 57, # 8 Exhibit Exhibit 58, # 9 Exhibit Exhibit 59, # 10 Exhibit Exhibit 60) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 06/21/2011)

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 95 of 114

06/21/2011 06/21/2011 06/21/2011 06/21/2011 06/24/2011 06/27/2011

933 RESPONSE in Opposition re (918 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment Defendants' Motion for Summary Judgment in Defendants' Favor on Amended Complaint of Plaintiffs Brett Hartman, Jerome Henderson, Jonathon Monroe, Phillip L. Elmore, and Grady L. Brinkley, (919 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment Defendants' Motion for Summary Judgment in Defendants' Favor on Amended Complaint of Plaintiff Kenneth W. Smith Joint Exhibit 61−70 filed by Intervenor Plaintiff Kenneth W Smith. (Attachments: # 1 Exhibit Exhibit 61, # 2 Exhibit Exhibit 62, # 3 Exhibit Exhibit 63, # 4 Exhibit Exhibit 64, # 5 Exhibit Exhibit 65, # 6 Exhibit Exhibit 66, # 7 Exhibit Exhibit 67, # 8 Exhibit Exhibit 68, # 9 Exhibit Exhibit 69, # 10 Exhibit Exhibit 70) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 06/21/2011)
934 RESPONSE in Opposition re (918 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment Defendants' Motion for Summary Judgment in Defendants' Favor on Amended Complaint of Plaintiffs Brett Hartman, Jerome Henderson, Jonathon Monroe, Phillip L. Elmore, and Grady L. Brinkley, (919 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment Defendants' Motion for Summary Judgment in Defendants' Favor on Amended Complaint of Plaintiff Kenneth W. Smith Joint Exhibits 71−80 filed by Intervenor Plaintiff Kenneth W Smith. (Attachments: # 1 Exhibit 71, # 2 Exhibit 72, # 3 Exhibit 73, # 4 Exhibit 74, # 5 Exhibit 75, # 6 Exhibit 76, # 7 Exhibit 77, # 8 Exhibit 78, # 9 Exhibit 79, # 10 Exhibit 80) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 06/21/2011)
935 RESPONSE in Opposition re (918 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment Defendants' Motion for Summary Judgment in Defendants' Favor on Amended Complaint of Plaintiffs Brett Hartman, Jerome Henderson, Jonathon Monroe, Phillip L. Elmore, and Grady L. Brinkley, (919 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment Defendants' Motion for Summary Judgment in Defendants' Favor on Amended Complaint of Plaintiff Kenneth W. Smith Joint Exhibits 81−90 filed by Intervenor Plaintiff Kenneth W Smith. (Attachments: # 1 Exhibit 81, # 2 Exhibit 82, # 3 Exhibit 83, # 4 Exhibit 84, # 5 Exhibit 85, # 6 Exhibit 86, # 7 Exhibit 87, # 8 Exhibit 88, # 9 Exhibit 89, # 10 Exhibit 90) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 06/21/2011)
936 RESPONSE in Opposition re (918 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment Defendants' Motion for Summary Judgment in Defendants' Favor on Amended Complaint of Plaintiffs Brett Hartman, Jerome Henderson, Jonathon Monroe, Phillip L. Elmore, and Grady L. Brinkley, (919 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment Defendants' Motion for Summary Judgment in Defendants' Favor on Amended Complaint of Plaintiff Kenneth W. Smith Joint Exhibits 91−100 filed by Intervenor Plaintiff Kenneth W Smith. (Attachments: # 1 Exhibit 91, # 2 Exhibit 92, # 3 Exhibit 93, # 4 Exhibit 94, # 5 Exhibit 95, # 6 Exhibit 96, # 7 Exhibit 97, # 8 Exhibit 98, # 9 Exhibit 99, # 10 Exhibit 100) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 06/21/2011)
937 NOTICE by Intervenor Plaintiff Kenneth W Smith re (932 in 2:04−cv−01156−GLF−MRA) Response in Opposition to Motion,,, (926 in 2:04−cv−01156−GLF−MRA) Response in Opposition to Motion, (925 in 2:04−cv−01156−GLF−MRA) Response in Opposition to Motion, Redacted Exhibit 53 (Attachments: # 1 Exhibit 53 to Doc. Nos. 925, 926) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 06/24/2011)
938 MOTION Permission to Issue and Serve Subpoena Without Tendering Witness Fees and Mileage Costs For June 29, 2011 TRO Hearing by Intervenor Plaintiff Kenneth W Smith. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA,

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 96 of 114

06/28/2011 06/28/2011
06/28/2011 06/29/2011
06/30/2011
07/01/2011

2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 06/27/2011)
939 ORDER granting 938 Plaintiff Smith's Motion to Issue and Serve a Subpoena Without Tendering Witness Fees and Mileage Costs in case 2:04−cv−01156−GLF−MRA. Signed by Judge Gregory L Frost on 6/28/11. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 06/28/2011)
940 NOTICE of Appearance by Justin M Lovett for Defendants Terry J. Collins, Execution Team Members ##1−21, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Anonymous Execution Team Members #1−21, David Bobby, Terry J. Collins, Execution Team Member #10, Execution Team Member #17, Execution Team Member #18, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, John/Jane Doe #1, John/Jane Doe #10, John/Jane Doe #11, John/Jane Doe #12, John/Jane Doe #2, John/Jane Doe #3, John/Jane Doe #4, John/Jane Doe #5, John/Jane Doe #6, John/Jane Doe #7, John/Jane Doe #8, John/Jane Doe #9, John Kasich, Phil Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, James Haviland, John Kasich, Gary Mohr, Donald Morgan, Robert Taft, Edwin Voorhies, Reginald Wilkinson Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Lovett, Justin) (Entered: 06/28/2011)
Minute Entry for proceedings held before Judge Gregory L Frost: Telephone Conference held on 6/28/2011 (docketed for statistical purposes only). Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 06/29/2011)
941 Minute Entry for proceedings held before Judge Gregory L Frost: Oral Hearing held on 6/29/2011 re (908 in 2:04−cv−01156−GLF−MRA, 139 in 2:09−cv−00823−GLF−MRA, 140 in 2:09−cv−00242−GLF−EPD, 157 in 2:10−cv−00027−GLF−MRA) MOTION for Temporary Restraining Order and Preliminary Injunction staying execution filed by Kenneth W Smith; Plaintiff's Counsel: A Bohnert &C Wright; Defendants Counsel: C Wille &T Madden; C/D: S Miller; Opening Statements by Counsel; Witnesses called by the Plaintiff: Team Member #10 &Donald Morgan; Evidence offered and admitted; Plaintiff rests; Witnesses called by the Defendants: Richard Theodore &Edwin Voorhies; Evidence offered and admitted; Closing arguments by Counsel; The Court will take the matter under advisement and issue its decision in dur course. (Court Reporter Denise Errett.) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 06/30/2011)
942 Unopposed MOTION to Continue deadline for Reply (Summary Judgment) by Defendants Terry J. Collins, Execution Team Members ##1−21, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Anonymous Execution Team Members #1−21, David Bobby, Terry J. Collins, Execution Team Member #10, Execution Team Member #17, Execution Team Member #18, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, John/Jane Doe #1, John/Jane Doe #10, John/Jane Doe #11, John/Jane Doe #12, John/Jane Doe #2, John/Jane Doe #3, John/Jane Doe #4, John/Jane Doe #5, John/Jane Doe #6, John/Jane Doe #7, John/Jane Doe #8, John/Jane Doe #9, John Kasich, Phil Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, James Haviland, John Kasich, Gary Mohr, Donald Morgan, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Madden, Thomas) (Entered: 06/30/2011)
943 ORDER granting (173) Motion to Continue in case 2:09−cv−00242−GLF−EPD; granting (172) Motion to Continue in case 2:09−cv−00823−GLF−MRA; granting (190) Motion to Continue in case 2:10−cv−00027−GLF−MRA; granting (942) Motion to Continue in case 2:04−cv−01156−GLF−MRA. Signed by Judge Gregory L Frost on 7/1/11. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA,

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 97 of 114

07/01/2011 07/07/2011
07/08/2011 07/08/2011 07/08/2011 07/08/2011

2:10−cv−00027−GLF−MRA (kn) (Entered: 07/01/2011)
944 Supplemental Memorandum Supporting re (908 in 2:04−cv−01156−GLF−MRA, 157 in 2:10−cv−00027−GLF−MRA, 139 in 2:09−cv−00823−GLF−MRA, 140 in 2:09−cv−00242−GLF−EPD) MOTION for Temporary Restraining Order and Preliminary Injunction staying execution filed by Intervenor Plaintiff Kenneth W Smith. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 07/01/2011)
945 Transcript of Hearing held on June 29, 2011, before Judge Gregory L Frost. Court Reporter/Transcriber Denise N Errett, Telephone number 614−719−3029. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms − Electronic Availability of Transcripts). Please read this policy carefully.
For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 7/28/2011. Redacted Transcript Deadline set for 8/8/2011. Release of Transcript Restriction set for 10/5/2011. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (rew) (Entered: 07/07/2011)
946 Joint and Unopposed MOTION to Incorporate Additional Factual Materials re Memos in Opposition to Summary Judgment (924, 925 &926 in 2:04−cv−01156−GLF−MRA) by Intervenor Plaintiff Kenneth W Smith. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) Modified text on 7/12/2011 (er1). (Entered: 07/08/2011)
947 ORDER granting (140) Motion for TRO in case 2:09−cv−00242−GLF−EPD; granting (139) Motion for TRO in case 2:09−cv−00823−GLF−MRA; granting (157) Motion for TRO in case 2:10−cv−00027−GLF−MRA; granting (908) Motion for TRO in case 2:04−cv−01156−GLF−MRA. Signed by Judge Gregory L Frost on 7/8/11. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (kn) (Entered: 07/08/2011)
948 REPLY to Response to Motion re (168 in 2:10−cv−00027−GLF−MRA) MOTION for Summary Judgment as to Plaintiff Smith filed by Defendants Terry J. Collins, John Kasich, Phillip Kerns, Gary Mohr. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Wille, Charles) (Entered: 07/08/2011)
949 REPLY to Response to Motion re (167 in 2:10−cv−00027−GLF−MRA) MOTION for Summary Judgment Defendants Memorandum in Reply to Plaintiffs' Memorandum in Opposition to Defendants Motions for Summary Judgment on the Amended Complaints of Brett Hartman, Jerome Henderson, Jonathon Monroe, Phillip L. Elmore And Grady L. Brinkley filed by Defendants Terry J. Collins, Execution Team Members ##1−21, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Anonymous Execution Team Members #1−21, David Bobby, Terry J. Collins, Execution Team Member #10, Execution Team Member #17, Execution Team Member #18, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, John/Jane Doe #1, John/Jane Doe #10, John/Jane Doe #11, John/Jane Doe #12, John/Jane Doe #2, John/Jane Doe #3, John/Jane Doe #4, John/Jane Doe #5, John/Jane Doe #6, John/Jane Doe

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 98 of 114

07/08/2011
07/08/2011
07/20/2011 07/20/2011 07/20/2011 07/21/2011 07/21/2011

#7, John/Jane Doe #8, John/Jane Doe #9, John Kasich, Phil Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, James Haviland, John Kasich, Gary Mohr, Donald Morgan, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Wille, Charles) (Entered: 07/08/2011)
950 REPLY to Response to Motion re (166 in 2:10−cv−00027−GLF−MRA) MOTION for Summary Judgment Defendants' Memorandum in Reply to Plaintiffs' Robert Bethel, Romell Broom, James Conway, Donald Ketterer, Billy Slagle, and Arthur Tylers Memorandum in Opposition to Defendants' Motions for Summary Judgment filed by Defendants Terry J. Collins, Execution Team Members ##1−21, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Anonymous Execution Team Members #1−21, David Bobby, Terry J. Collins, Execution Team Member #10, Execution Team Member #17, Execution Team Member #18, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, John/Jane Doe #1, John/Jane Doe #10, John/Jane Doe #11, John/Jane Doe #12, John/Jane Doe #2, John/Jane Doe #3, John/Jane Doe #4, John/Jane Doe #5, John/Jane Doe #6, John/Jane Doe #7, John/Jane Doe #8, John/Jane Doe #9, John Kasich, Phil Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, James Haviland, John Kasich, Gary Mohr, Donald Morgan, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Wille, Charles) (Entered: 07/08/2011)
951 Consolidated MOTION for Stay of Consideration of Previously Filed Dispositive Motions, to Reopen Discovery Under Federal Rule of Civil Procedure 56(d), and to Allow Amended Pleadings and/or Supplemental Briefing Under Federal Rule of Civil Procedure 15 re (917, 918, 919, 924, 925 &926 in 2:04−cv−01156−GLF−MRA) by Intervenor Plaintiff Kenneth W Smith. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Affidavit July 8, 2011 Hicks Affidavit) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) Modified text on 7/12/2011 (er1). (Entered: 07/08/2011)
952 MOTION for Leave to File Second Amended Complaint by Plaintiff Brett Hartman. (Attachments: # 1 Exhibit Second Amended Complaint on behalf of Plaintiff Brett Hartman) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 07/20/2011)
953 MOTION for Preliminary Injunction , MOTION for Temporary Restraining Order , MOTION to Stay of execution by Plaintiff Brett Hartman. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 07/20/2011)
Minute Entry for proceedings held before Judge Gregory L Frost: Telephone Conference held on 7/20/2011 (docketed for statistical purposes only). (Court Reporter Denise Errett.) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 07/20/2011)
954 MOTION to Intervene by Intervenor Plaintiffs Joseph Murphy, Joseph Murphy, Joseph Murphy, Joseph Murphy. (Attachments: # 1 Exhibit Complaint) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Barnhart, Robert) (Entered: 07/21/2011)
955 NOTICE by Defendants Terry J. Collins, Execution Team Members ##1−21, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Anonymous Execution Team Members #1−21, David Bobby, Terry J. Collins, Execution Team Member #10, Execution Team Member #17, Execution Team Member #18, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, John/Jane Doe #1, John/Jane Doe #10, John/Jane Doe #11, John/Jane Doe #12,

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 99 of 114

07/22/2011
07/22/2011
07/22/2011 07/22/2011 07/22/2011 07/27/2011

John/Jane Doe #2, John/Jane Doe #3, John/Jane Doe #4, John/Jane Doe #5, John/Jane Doe #6, John/Jane Doe #7, John/Jane Doe #8, John/Jane Doe #9, John Kasich, Phil Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, James Haviland, John Kasich, Gary Mohr, Donald Morgan, Robert Taft, Edwin Voorhies, Reginald Wilkinson of Governor's Warrant of Reprieve to November 13, 2012 (Attachments: # 1 Exhibit Governor Kasich's Warrant of Reprieve to November 13, 2012) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Madden, Thomas) (Entered: 07/21/2011)
956 MOTION to Withdraw (201 in 2:10−cv−00027−GLF−MRA, 201 in 2:10−cv−00027−GLF−MRA, 201 in 2:10−cv−00027−GLF−MRA, 184 in 2:09−cv−00242−GLF−EPD, 184 in 2:09−cv−00242−GLF−EPD, 184 in 2:09−cv−00242−GLF−EPD, 953 in 2:04−cv−01156−GLF−MRA, 953 in 2:04−cv−01156−GLF−MRA, 953 in 2:04−cv−01156−GLF−MRA, 183 in 2:09−cv−00823−GLF−MRA, 183 in 2:09−cv−00823−GLF−MRA, 183 in 2:09−cv−00823−GLF−MRA) MOTION for Preliminary Injunction MOTION for Temporary Restraining Order MOTION to Stay of execution by Plaintiff Brett Hartman. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Stebbins, David) (Entered: 07/22/2011)
957 ORDER terminating (184) Motion for Preliminary Injunction; terminating (184) Motion for TRO; terminating (184) Motion to Stay; granting (187) Motion to Withdraw in case 2:09−cv−00242−GLF−EPD; terminating (183) Motion for Preliminary Injunction; terminating (183) Motion for TRO; terminating (183) Motion to Stay; granting (186) Motion to Withdraw in case 2:09−cv−00823−GLF−MRA; terminating (201) Motion for Preliminary Injunction; terminating (201) Motion for TRO; terminating (201) Motion to Stay; granting (204) Motion to Withdraw in case 2:10−cv−00027−GLF−MRA; terminating (953) Motion for Preliminary Injunction; terminating (953) Motion for TRO; terminating (953) Motion to Stay; granting (956) Motion to Withdraw in case 2:04−cv−01156−GLF−MRA. Signed by Judge Gregory L Frost on 7/22/11. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 07/22/2011)
958 MOTION for Temporary Restraining Order , MOTION for Preliminary Injunction , MOTION to Stay Execution by Intervenor Plaintiff Billy Slagle. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Barnhart, Robert) (Entered: 07/22/2011)
959 MOTION for Leave to File Second Amended Complaint by Intervenor Plaintiff Billy Slagle. (Attachments: # 1 Exhibit Second Amended Complaint) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Barnhart, Robert) (Entered: 07/22/2011)
960 NOTICE of Hearing: Rule 65.1 Telephone Conference set for 7/27/2011 01:30 PM before Judge Gregory L Frost (parties provided call in number and passcode). Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 07/22/2011)
961 RESPONSE in Opposition re (182 in 2:09−cv−00242−GLF−EPD, 199 in 2:10−cv−00027−GLF−MRA, 951 in 2:04−cv−01156−GLF−MRA, 181 in 2:09−cv−00823−GLF−MRA) MOTION Stay consideration of summary judgment motions, reopen discovery, and allow amended pleading and/or supplemental briefing re (917 in 2:04−cv−01156−GLF−MRA) MOTION for Summary Judgment Defendants' Motion for Summary Judgment in Defe Defendants' Memorandum in Response and Opposition to "Plaintiffs' Consolidated Motion for Stay of Consideration of Previously Filed Dispositive Motions, to Reopen Discovery Under Federal Rule of Civil Procedure 56(D), and to Allow Amended Pleadings and/or Supplemental Briefing Under Federal Rule of Civil Procedure 15" filed by Defendants Terry J. Collins, Execution Team Members ##1−21, John Kasich,

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 100 of 114

07/27/2011 07/27/2011
07/27/2011 07/28/2011 07/28/2011 07/29/2011 08/09/2011

Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Anonymous Execution Team Members #1−21, David Bobby, Terry J. Collins, Execution Team Member #10, Execution Team Member #17, Execution Team Member #18, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, John/Jane Doe #1, John/Jane Doe #10, John/Jane Doe #11, John/Jane Doe #12, John/Jane Doe #2, John/Jane Doe #3, John/Jane Doe #4, John/Jane Doe #5, John/Jane Doe #6, John/Jane Doe #7, John/Jane Doe #8, John/Jane Doe #9, John Kasich, Phil Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, James Haviland, John Kasich, Gary Mohr, Donald Morgan, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Wille, Charles) (Entered: 07/27/2011)
Minute Entry for proceedings held before Judge Gregory L Frost: Telephone Status Conference held on 7/27/2011 (docketed for statistical purposes only). Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 07/27/2011)
962 ORDER memorializing the 7/27/11 Rule 65.1 Conference: Oral Hearing regarding Plaintiff Slagle's Motion for TRO and Preliminary Injunction set for 9/13/2011 09:00 AM in Courtroom 5 − Columbus before Judge Gregory L Frost. Signed by Judge Gregory L Frost on 7/27/11. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 07/27/2011)
963 Unopposed MOTION to Appoint Counsel by Intervenor Plaintiff Billy Slagle. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 07/27/2011)
964 ORDER granting (963) Motion to Appoint New Trial (Lead) Counsel and Co−Counsel for Plaintiff Slagle in case 2:04−cv−01156−GLF−MRA. Signed by Judge Gregory L Frost on 7/28/11. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 07/28/2011)
965 NOTICE of Appearance by Allen L. Bohnert for Intervenor Plaintiff Billy Slagle Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 07/28/2011)
966 NOTICE of Appearance by Carol Ann Wright for Intervenor Plaintiff Billy Slagle Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Wright, Carol) (Entered: 07/29/2011)
967 RESPONSE in Opposition re (202 in 2:10−cv−00027−GLF−MRA) MOTION to Intervene by Inmate Joseph Murphy filed by Defendants Terry J. Collins, Execution Team Members ##1−21, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Anonymous Execution Team Members #1−21, David Bobby, Terry J. Collins, Execution Team Member #10, Execution Team Member #17, Execution Team Member #18, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, John/Jane Doe #1, John/Jane Doe #10, John/Jane Doe #11, John/Jane Doe #12, John/Jane Doe #2, John/Jane Doe #3, John/Jane Doe #4, John/Jane Doe #5, John/Jane Doe #6, John/Jane Doe #7, John/Jane Doe #8, John/Jane Doe #9, John Kasich, Phil Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, James Haviland, John Kasich, Gary Mohr, Donald Morgan, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Madden, Thomas) (Entered: 08/09/2011)

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 101 of 114

08/12/2011 08/15/2011
08/22/2011 08/23/2011 08/25/2011 08/25/2011 08/25/2011 08/26/2011

968 REPLY to Response to Motion re (185 in 2:09−cv−00242−GLF−EPD, 202 in 2:10−cv−00027−GLF−MRA, 184 in 2:09−cv−00823−GLF−MRA, 954 in 2:04−cv−01156−GLF−MRA) MOTION to Intervene filed by Intervenor Plaintiff Joseph Murphy. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Barnhart, Robert) (Entered: 08/12/2011)
969 RESPONSE in Opposition re (207 in 2:10−cv−00027−GLF−MRA) MOTION for Leave to File Second Amended Complaint, (206 in 2:10−cv−00027−GLF−MRA, 206 in 2:10−cv−00027−GLF−MRA, 206 in 2:10−cv−00027−GLF−MRA) MOTION for Temporary Restraining Order MOTION for Preliminary Injunction MOTION to Stay Execution Defendants' Memorandum in Response and Opposition to Plaintiff Slagle's Motion for Leave to File Second Amended Complaint and Motion for a Temporary Restraining Order and Preliminary Injunction filed by Defendants Terry J. Collins, Execution Team Members ##1−21, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Anonymous Execution Team Members #1−21, David Bobby, Terry J. Collins, Execution Team Member #10, Execution Team Member #17, Execution Team Member #18, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, John/Jane Doe #1, John/Jane Doe #10, John/Jane Doe #11, John/Jane Doe #12, John/Jane Doe #2, John/Jane Doe #3, John/Jane Doe #4, John/Jane Doe #5, John/Jane Doe #6, John/Jane Doe #7, John/Jane Doe #8, John/Jane Doe #9, John Kasich, Phil Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, James Haviland, John Kasich, Gary Mohr, Donald Morgan, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Wille, Charles) (Entered: 08/15/2011)
Minute Entry for proceedings held before Judge Gregory L Frost: Telephone Conference held on 8/22/2011 (docketed for statistical purposes only). Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 08/22/2011)
970 ORDER memorializing the 8/22/11 Telephone Status Conference. Signed by Judge Gregory L Frost on 8/23/11. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 08/23/2011)
971 NOTICE by Intervenor Plaintiff Billy Slagle Joint Notice of Defendants' Express Waiver of Exhaustion Defenses Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 08/25/2011)
972 AMENDED COMPLAINT Third Amended Complaint against All Defendants, filed by Billy Slagle. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 08/25/2011)
973 Amended MOTION for Temporary Restraining Order and stay of execution, Amended MOTION for Preliminary Injunction and stay of execution by Intervenor Plaintiff Billy Slagle. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 08/25/2011)
974 MOTION to Intervene by Intervenor Plaintiff Joseph Murphy. (Attachments: # 1 Exhibit Complaint, # 2 Exhibit Exhibit 1 to Attached Complaint, # 3 Exhibit Exhibit 2 to Attached Complaint, # 4 Exhibit Exhibit 3 to Attached Complaint, # 5 Exhibit Exhibit 4 to Attached Complaint, # 6 Exhibit Exhibit 5 to Attached Complaint, # 7 Exhibit Exhibit 6 to Attached Complaint, # 8 Exhibit Exhibit 7 to Attached Complaint) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Barnhart, Robert) (Entered: 08/26/2011)

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 102 of 114

08/30/2011
08/30/2011
08/31/2011 08/31/2011 08/31/2011 09/01/2011 09/01/2011 09/01/2011

975 MOTION to Continue deadline for filing addendum to Dr. Dershwitz's previously filed report by Defendants Terry J. Collins, Execution Team Members ##1−21, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Anonymous Execution Team Members #1−21, David Bobby, Terry J. Collins, Execution Team Member #10, Execution Team Member #17, Execution Team Member #18, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, John/Jane Doe #1, John/Jane Doe #10, John/Jane Doe #11, John/Jane Doe #12, John/Jane Doe #2, John/Jane Doe #3, John/Jane Doe #4, John/Jane Doe #5, John/Jane Doe #6, John/Jane Doe #7, John/Jane Doe #8, John/Jane Doe #9, John Kasich, Phil Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, James Haviland, John Kasich, Gary Mohr, Donald Morgan, Robert Taft, Edwin Voorhies, Reginald Wilkinson. (Attachments: # 1 Appendix Dr. Dershwitz's Report (pentobarbital)) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Madden, Thomas) (Entered: 08/30/2011)
976 RESPONSE in Opposition re (222 in 2:10−cv−00027−GLF−MRA) MOTION to Intervene by Joseph Murphy filed by Defendants Terry J. Collins, Execution Team Members ##1−21, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Anonymous Execution Team Members #1−21, David Bobby, Terry J. Collins, Execution Team Member #10, Execution Team Member #17, Execution Team Member #18, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, John/Jane Doe #1, John/Jane Doe #10, John/Jane Doe #11, John/Jane Doe #12, John/Jane Doe #2, John/Jane Doe #3, John/Jane Doe #4, John/Jane Doe #5, John/Jane Doe #6, John/Jane Doe #7, John/Jane Doe #8, John/Jane Doe #9, John Kasich, Phil Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, James Haviland, John Kasich, Gary Mohr, Donald Morgan, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Madden, Thomas) (Entered: 08/30/2011)
977 ORDER granting (975) Motion to Permit the 9/1/11 filing of an addendum to Dr. Dershwitz's report in case 2:04−cv−01156−GLF−MRA. Signed by Judge Gregory L Frost on 8/31/11. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 08/31/2011)
978 REPLY to Response to Motion re (222 in 2:10−cv−00027−GLF−MRA, 974 in 2:04−cv−01156−GLF−MRA, 205 in 2:09−cv−00242−GLF−EPD, 204 in 2:09−cv−00823−GLF−MRA) MOTION to Intervene filed by Intervenor Plaintiff Joseph Murphy. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Barnhart, Robert) (Entered: 08/31/2011)
Minute Entry for proceedings held before Judge Gregory L Frost: Telephone Conference held on 8/31/2011 (docketed for statistical purposes only). Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 09/01/2011)
Minute Entry for proceedings held before Judge Gregory L Frost: Telephone Conferences (two) held on 9/1/2011 (docketed for statistical purposes only). Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 09/01/2011)
979 NOTICE by Defendant John Kasich , et. al. (Attachments: # 1 Appendix) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Madden, Thomas) (Entered: 09/01/2011)
980 MOTION for Extension of Time to File Answer New date requested 9/2/2011. by Defendants Terry J. Collins, Execution Team Members ##1−21, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Anonymous Execution Team Members #1−21, David Bobby, Terry J. Collins, Execution Team Member

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 103 of 114

09/02/2011 09/02/2011 09/02/2011
09/02/2011 09/06/2011 09/06/2011 09/07/2011 09/07/2011 09/07/2011

#10, Execution Team Member #17, Execution Team Member #18, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, John/Jane Doe #1, John/Jane Doe #10, John/Jane Doe #11, John/Jane Doe #12, John/Jane Doe #2, John/Jane Doe #3, John/Jane Doe #4, John/Jane Doe #5, John/Jane Doe #6, John/Jane Doe #7, John/Jane Doe #8, John/Jane Doe #9, John Kasich, Phil Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, James Haviland, John Kasich, Gary Mohr, Donald Morgan, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Lovett, Justin) (Entered: 09/01/2011)
981 ORDER granting Defendants' 980 Motion for a One Day Extension of Time. Signed by Judge Gregory L Frost on 9/2/11. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 09/02/2011)
982 NOTICE by Defendant John Kasich of Plaintiff Slagle's Reprieve (Attachments: # 1 Appendix Governor Kasich's grant of Reprieve) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Madden, Thomas) (Entered: 09/02/2011)
983 MOTION to Withdraw (973 in 2:04−cv−01156−GLF−MRA, 973 in 2:04−cv−01156−GLF−MRA) Amended MOTION for Temporary Restraining Order and stay of executionAmended MOTION for Preliminary Injunction and stay of execution by Intervenor Plaintiff Billy Slagle. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 09/02/2011)
Minute Entry for proceedings held before Judge Gregory L Frost: Telephone Status Conference held on 9/2/2011 (docketed for statistical purposes only). Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 09/06/2011)
984 ORDER granting the Motion to Withdraw (983) as to (973) Plaintiff Slagle's Motion for TRO and Preliminary Injunction in case 2:04−cv−01156−GLF−MRA. Signed by Judge Gregory L Frost on 9/6/11. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 09/06/2011)
985 ORDER memorializing the 9/2/11 Telephone Status Conference. Signed by Judge Gregory L Frost on 9/6/11. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 09/06/2011)
986 Unopposed MOTION to Appoint Counsel by Intervenor Plaintiff Joseph Murphy. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 09/07/2011)
987 ORDER granting (974) Intervenor Plaintiff Murphy's Motion to Intervene; granting (986) Intervenor Plaintiff Murphy's Motion to Apoint New Trial (Lead) Counsel and Co−Counsel in case 2:04−cv−01156−GLF−MRA. Signed by Judge Gregory L Frost on 9/7/11. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 09/07/2011)
988 Intervenor COMPLAINT filed by Joseph Murphy against all Defendants. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 09/07/2011)

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 104 of 114

09/08/2011 09/08/2011 09/08/2011 09/09/2011
09/09/2011 09/09/2011 09/12/2011 09/12/2011 09/12/2011
09/14/2011 09/16/2011

989 NOTICE of Appearance by Allen L. Bohnert for Intervenor Plaintiff Joseph Murphy Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 09/08/2011)
990 NOTICE of Appearance by Carol Ann Wright for Intervenor Plaintiff Joseph Murphy Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Wright, Carol) (Entered: 09/08/2011)
991 MOTION for Temporary Restraining Order Staying Execution, MOTION for Preliminary Injunction Staying Execution by Intervenor Plaintiff Joseph Murphy. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 09/08/2011)
992 NOTICE of Hearing re (991 in 2:04−cv−01156−GLF−MRA, 222 in 2:09−cv−00242−GLF−EPD, 239 in 2:10−cv−00027−GLF−MRA, 221 in 2:09−cv−00823−GLF−MRA) MOTION for Temporary Restraining Order Staying Execution MOTION for Preliminary Injunction Staying Execution : Rule 65.1 Telephone Conference set for 9/12/2011 10:00 AM before Judge Gregory L Frost (parties have been provided with call in number and passcode). Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 09/09/2011)
993 Unopposed MOTION to Appoint Counsel by Intervenor Plaintiffs Reginald Brooks, Reginald Brooks, Reginald Brooks, Reginald Brooks. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 09/09/2011)
994 NOTICE by Intervenor Plaintiff Joseph Murphy of Submission to the Court of Deposition Transcripts and Exhibits Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 09/09/2011)
Minute Entry for proceedings held before Judge Gregory L Frost: Telephone Status Conference held on 9/12/2011 (docketed for statistical purposes only). Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 09/12/2011)
995 ORDER granting (993) Motion to Appoint Counsel on Behalf of Reginald Brooks in case 2:04−cv−01156−GLF−MRA. Signed by Judge Gregory L Frost on 9/12/11. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 09/12/2011)
996 ORDER memorializing the 9/12/11 Rule 65.1 Telephone Conference and re (991 in 2:04−cv−01156−GLF−MRA, 991 in 2:04−cv−01156−GLF−MRA MOTION for Temporary Restraining Order Staying Execution MOTION for Preliminary Injunction Staying Execution filed by Joseph Murphy; Oral Hearing on said motion set for 9/29/2011 08:30 AM in Courtroom 5 − Columbus before Judge Gregory L Frost. Signed by Judge Gregory L Frost on 9/12/11. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 09/12/2011)
997 MOTION for Protective Order by Defendant Execution Team Member #17. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Madden, Thomas) (Entered: 09/14/2011)
998 RESPONSE in Opposition re (245 in 2:10−cv−00027−GLF−MRA) MOTION for Protective Order filed by Intervenor Plaintiff Joseph Murphy. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD,

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 105 of 114

09/16/2011
09/16/2011 09/16/2011
09/19/2011 09/19/2011 09/20/2011 09/20/2011 09/20/2011 09/27/2011

2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Wright, Carol) (Entered: 09/16/2011)

999 NOTICE by Defendants Terry J. Collins, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Anonymous Execution Team Members #1−21, David Bobby, Terry J. Collins, Execution Team Member #10, Execution Team Member #17, Execution Team Member #18, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, John/Jane Doe #1, John/Jane Doe #10, John/Jane Doe #11, John/Jane Doe #12, John/Jane Doe #2, John/Jane Doe #3, John/Jane Doe #4, John/Jane Doe #5, John/Jane Doe #6, John/Jane Doe #7, John/Jane Doe #8, John/Jane Doe #9, John Kasich, Phil Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, James Haviland, John Kasich, Gary Mohr, Donald Morgan, Robert Taft, Edwin Voorhies, Reginald Wilkinson Defendants' Notice of Filing of Documents Under Seal (Attachments: # 1 Affidavit of Greg Trout) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Wille, Charles) (Entered: 09/16/2011)

1000 **SEALED** Defendants' Notice of Filing of Documents Under Seal. (Attachments: # 1 Exhibit (1) Draft copies of written directive reflecting comments−suggestions of TM 17# 2 Exhibit (2) Draft Written Directives Including ODRC Counsels Notations) (sr1) (Entered: 09/16/2011)

1001

NOTICE by Defendants Terry J. Collins, Execution Team Members ##1−21, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, David Bobby, Terry J. Collins, Execution Team Member #10, Execution Team Member #17, Execution Team Member #18, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, John/Jane Doe #1, John/Jane Doe #10, John/Jane Doe #11, John/Jane Doe #12, John/Jane Doe #2, John/Jane Doe #3, John/Jane Doe #4, John/Jane Doe #5, John/Jane Doe #6, John/Jane Doe #7, John/Jane Doe #8, John/Jane Doe #9, John Kasich, Phil Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, James Haviland, John Kasich, Gary Mohr, Donald Morgan, Robert Taft, Edwin Voorhies, Reginald Wilkinson Defendants' Notice of Filing of Documents Under Seal (Attachments: # 1 Exhibit A−Defendents' Priviledge Log Re: September Written Directive, # 2 Exhibit B−Defendents' Privilege Log) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Wille, Charles) (Entered: 09/16/2011)

1002 ORDER issued regarding privilege logs submitted by Defendants. Signed by Judge Gregory L Frost on 9/19/11. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 09/19/2011)

Minute Entry for proceedings held before Judge Gregory L Frost: Telephone Status Conference held on 9/19/2011 (docketed for statistical purposes only). (Court Reporter Denise Errett.) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 09/19/2011)

1003 NOTICE by Defendant Execution Team Member #17 of Affidavit Filed Under Seal Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Madden, Thomas) (Entered: 09/20/2011)

1004 **SEALED** Document. Affidavit of Current Execution Team Member #17 (sr1) Modified on 9/21/2011 to correct docket entry text. (pes1). (Entered: 09/20/2011)

1005

ORDER denying (997) Defendants' Motion for Protective Order in case 2:04−cv−01156−GLF−MRA. Signed by Judge Gregory L Frost on 9/20/11. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 09/20/2011)

1006 NOTICE by Defendants Terry J. Collins, Execution Team Members ##1−21, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Anonymous Execution Team Members #1−21, David Bobby, Terry J. Collins, Execution Team

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 106 of 114

09/27/2011 09/28/2011 09/28/2011 09/28/2011 09/28/2011 09/28/2011

Member #10, Execution Team Member #17, Execution Team Member #18, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, John/Jane Doe #1, John/Jane Doe #10, John/Jane Doe #11, John/Jane Doe #12, John/Jane Doe #2, John/Jane Doe #3, John/Jane Doe #4, John/Jane Doe #5, John/Jane Doe #6, John/Jane Doe #7, John/Jane Doe #8, John/Jane Doe #9, John Kasich, Phil Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, James Haviland, John Kasich, Gary Mohr, Donald Morgan, Robert Taft, Edwin Voorhies, Reginald Wilkinson Defendants' Notice of Commutation for Joseph D. Murphy (Attachments: # 1 Exhibit A−Governor's Commutation) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Wille, Charles) (Entered: 09/27/2011)

1007

MOTION to Withdraw (991 in 2:04−cv−01156−GLF−MRA, 991 in 2:04−cv−01156−GLF−MRA) MOTION for Temporary Restraining Order Staying Execution MOTION for Preliminary Injunction Staying Execution, (988 in 2:04−cv−01156−GLF−MRA) Intervenor Complaint, and Notice of Dismissal of Complaint by Intervenor Plaintiff Joseph Murphy. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 09/27/2011)

1008

ORDER granting (1007) Motion to Withdraw in case 2:04−cv−01156−GLF−MRAin that the (991) Motion for TRO and for Preliminary Injunction is withdrawn. Signed by Judge Gregory L Frost on 9/28/11. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 09/28/2011)

1009

AMENDED COMPLAINT Seventh Amended Complaint of Kenneth W. Smith against All Defendants, filed by Kenneth W Smith. (Attachments: # 1 Exhibit 1 − September 18, 2011 written execution protocol, # 2 Exhibit 2 − Article re execution of Eddie Powell, # 3 Exhibit 3 − Affidavit of Christine Freeman, # 4 Exhibit 4 − Affidavit of Matt Schulz, # 5 Exhibit 5 − Article 1 re execution of Roy Blankenship, # 6 Exhibit 6 − Article 2 re execution of Roy Blankenship, # 7 Exhibit 7 − Pages of transcript of deposition of Dr. Dershwitz)Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 09/28/2011)

1010

AMENDED COMPLAINT Seventh Amended Complaint of Billy Slagle against All Defendants, filed by Billy Slagle. (Attachments: # 1 Exhibit 1 − September 18, 2011 written execution protocol, # 2 Exhibit 2 − Article re execution of Eddie Powell, # 3 Exhibit 3 − Affidavit of Christine Freeman, # 4 Exhibit 4 − Affidavit of Matt Schulz, # 5 Exhibit 5 − Article 1 re execution of Roy Blankenship, # 6 Exhibit 6 − Article 2 re execution of Roy Blankenship, # 7 Exhibit Pages of transcript of deposition of Dr. Dershwitz)Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 09/28/2011)

1011

AMENDED COMPLAINT (SEVENTH AMENDED) against All Defendants, filed by Grady L. Brinkley. (Attachments: # 1 Exhibit 1, September 18, 2011, written execution policy, # 2 Exhibit 2, Article re execution of Eddie Powell, # 3 Exhibit 3, Affidavit of Christine Freeman, # 4 Exhibit 4, Affidavit of Matt Schulz, # 5 Exhibit 5, Article 1 re execution of Roy Blankenship, # 6 Exhibit 6, Article 2 re execution of Roy Blankenship, # 7 Exhibit 7, Pages of transcript of deposition of Dr. Dershwitz)Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Sweeney, Timothy) (Entered: 09/28/2011)

1012

AMENDED COMPLAINT Seventh Amended Complaint of Jonathan Monroe against All Defendants, filed by Jonathon D. Monroe. (Attachments: # 1 Exhibit 1 − September 18, 2011 written execution protocol, # 2 Exhibit 2 − Article re execution of Eddie Powell, # 3 Exhibit 3 − Affidavit of Christine Freeman, # 4 Exhibit 4 − Affidavit of Matt Schulz, # 5 Exhibit 5 − Article 1 re execution of Roy

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 107 of 114

09/28/2011 09/28/2011 09/28/2011 09/28/2011 09/28/2011 09/28/2011

Blankenship, # 6 Exhibit 6 − Article 2 re execution of Roy Blankenship, # 7 Exhibit 7 − Pages of transcript of deposition of Dr. Dershwitz)Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 09/28/2011)

1013

AMENDED COMPLAINT Seventh Amended Complaint of Brett Hartman against All Defendants, filed by Brett Hartman. (Attachments: # 1 Exhibit 1 − September 18, 2011 written execution protocol, # 2 Exhibit 2 − Article re execution of Eddie Powell, # 3 Exhibit 3 − Affidavit of Christine Freeman, # 4 Exhibit 4 − Affidavit of Matt Schulz, # 5 Exhibit 5 − Article 1 re execution of Roy Blankenship, # 6 Exhibit 6 − Article 2 re execution of Roy Blankenship, # 7 Exhibit 7 − Pages of transcript of deposition of Dr. Dershwitz)Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 09/28/2011)

1014

AMENDED COMPLAINT Seventh Amended Complaint of Jerome Henderson against All Defendants, filed by Jerome Henderson. (Attachments: # 1 Exhibit 1 − September 18, 2011 written execution protocol, # 2 Exhibit 2 − Article re execution of Eddie Powell, # 3 Exhibit 3 − Affidavit of Christine Freeman, # 4 Exhibit 4 − Affidavit of Matt Schulz, # 5 Exhibit 5 − Article 1 re execution of Roy Blankenship, # 6 Exhibit 6 − Article 2 re execution of Roy Blankenship, # 7 Exhibit 7 − Pages of transcript of deposition of Dr. Dershwitz)Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Wright, Carol) (Entered: 09/28/2011)

1015

AMENDED COMPLAINT Seventh Amended Complaint of Romell Broom against All Defendants, filed by Romell Broom. (Attachments: # 1 Exhibit 1 − September 18, 2011 written execution protocol, # 2 Exhibit 2 − Article re execution of Eddie Powell, # 3 Exhibit 3 − Affidavit of Christine Freeman, # 4 Exhibit 4 − Affidavit of Matt Schulz, # 5 Exhibit 5 − Article 1 re execution of Roy Blankenship, # 6 Exhibit 6 − Article 2 re execution of Roy Blankenship, # 7 Exhibit 7 − Pages of transcript of deposition of Dr. Dershwitz)Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Barnhart, Robert) (Entered: 09/28/2011)

1016

AMENDED COMPLAINT Seventh Amended Complaint of Robert W. Bethel against All Defendants, filed by Robert W. Bethel. (Attachments: # 1 Exhibit 1 − September 18, 2011 written execution protocol, # 2 Exhibit 2 − Article re execution of Eddie Powell, # 3 Exhibit 3 − Affidavit of Christine Freeman, # 4 Exhibit 4 − Affidavit of Matt Schulz, # 5 Exhibit 5 − Article 1 re execution of Roy Blankenship, # 6 Exhibit 6 − Article 2 re execution of Roy Blankenship, # 7 Exhibit 7 − Pages of transcript of deposition of Dr. Dershwitz)Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Barnhart, Robert) (Entered: 09/28/2011)

1017

AMENDED COMPLAINT Seventh Amended Complaint of James T. Conway against All Defendants, filed by James T. Conway. (Attachments: # 1 Exhibit 1 − September 18, 2011 written execution protocol, # 2 Exhibit 2 − Article re execution of Eddie Powell, # 3 Exhibit 3 − Affidavit of Christine Freeman, # 4 Exhibit 4 − Affidavit of Matt Schulz, # 5 Exhibit 5 − Article 1 re execution of Roy Blankenship, # 6 Exhibit 6 − Article 2 re execution of Roy Blankenship, # 7 Exhibit 7 − Pages of transcript of deposition of Dr. Dershwitz)Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Barnhart, Robert) (Entered: 09/28/2011)

1018

AMENDED COMPLAINT Seventh Amended Complaint of Donald Ketterer against All Defendants, filed by Donald E Ketterer. (Attachments: # 1 Exhibit 1 − September 18, 2011 written execution protocol, # 2 Exhibit 2 − Article re execution of Eddie Powell, # 3 Exhibit 3 − Affidavit of Christine Freeman, # 4 Exhibit 4 − Affidavit of Matt Schulz, # 5 Exhibit 5 − Article 1 re execution of Roy

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 108 of 114

09/28/2011
09/28/2011 09/29/2011 09/29/2011 09/29/2011 09/29/2011 10/04/2011

Blankenship, # 6 Exhibit 6 − Article 2 re execution of Roy Blankenship, # 7 Exhibit 7 − Pages of transcript of deposition of Dr. Dershwitz)Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Barnhart, Robert) (Entered: 09/28/2011)

1019

AMENDED COMPLAINT Seventh Amended Complaint of Arthur Tyler against All Defendants, filed by Arthur Tyler. (Attachments: # 1 Exhibit 1 − September 18, 2011 written execution protocol, # 2 Exhibit 2 − Article re execution of Eddie Powell, # 3 Exhibit 3 − Affidavit of Christine Freeman, # 4 Exhibit 4 − Affidavit of Matt Schulz, # 5 Exhibit 5 − Article 1 re execution of Roy Blankenship, # 6 Exhibit 6 − Article 2 re execution of Roy Blankenship, # 7 Exhibit 7 − Pages of transcript of deposition of Dr. Dershwitz)Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Barnhart, Robert) (Entered: 09/28/2011)

1020

AMENDED COMPLAINT Seventh Amended Complaint of Phillip Elmore against All Defendants, filed by Phillip L Elmore. (Attachments: # 1 Exhibit Exhibit 1 Execution Protocol, effective 9−18−11, # 2 Exhibit Exhibit 2 Article re Execution of Eddie Powell, # 3 Exhibit Exhibit 3 Freeman Affidavit, # 4 Exhibit Exhibit 4 Schulz Affidavit, # 5 Exhibit Exhibit 5 Cook Article, # 6 Exhibit Exhibit 6 Bluestein Article, # 7 Exhibit Exhibit 7 Partial Transcript of Dr. Dershwitz)Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (McGarry, Kathleen) (Entered: 09/28/2011)

1021

MOTION to Intervene by Intervenor Plaintiff Reginald Brooks. (Attachments: # 1 Exhibit 1 − Complaint of Reginald Brooks, # 2 Exhibit 1 to Complaint, # 3 Exhibit 2 to Complaint, # 4 Exhibit 3 to Complaint, # 5 Exhibit 4 to Complaint, # 6 Exhibit 5 to Complaint, # 7 Exhibit 6 to Complaint, # 8 Exhibit 7 to Complaint) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 09/29/2011)

1022

MOTION for Temporary Restraining Order and, MOTION for Preliminary Injunction by Intervenor Plaintiff Reginald Brooks. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 09/29/2011)

Minute Entry for proceedings held before Judge Gregory L Frost: Telephone Status Conference held on 9/29/2011 (docketed for statistical purposes only). Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 09/29/2011)

1023

ORDER memorializing the 9/29/11 Telephone Conference and re MOTION to Intervene filed by Reginald Brooks and MOTION for Temporary Restraining Order and MOTION for Preliminary Injunction filed by Reginald Brooks; Non−oral hearing on the Motion to Intervene set for 10/7/2011. Oral Hearing on the Motion for TRO and Preliminary Injunction set for 10/31/2011 09:00 AM in Courtroom 5 − Columbus before Judge Gregory L Frost. Signed by Judge Gregory L Frost on 9/29/11. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 09/29/2011)

1024

RESPONSE in Opposition re (269 in 2:10−cv−00027−GLF−MRA) MOTION to Intervene Defendants' Opposition to Inmate Brooks Intervention filed by Defendants Terry J. Collins, Execution Team Members ##1−21, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Anonymous Execution Team Members #1−21, David Bobby, Terry J. Collins, Execution Team Member #10, Execution Team Member #17, Execution Team Member #18, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, John/Jane Doe #1, John/Jane Doe #10, John/Jane Doe #11, John/Jane Doe #12, John/Jane Doe #2, John/Jane Doe #3, John/Jane Doe #4, John/Jane Doe #5,

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 109 of 114

10/05/2011
10/05/2011 10/05/2011 10/05/2011 10/05/2011 10/05/2011 10/05/2011 10/05/2011 10/05/2011 10/05/2011 10/05/2011 10/05/2011 10/05/2011 10/07/2011

John/Jane Doe #6, John/Jane Doe #7, John/Jane Doe #8, John/Jane Doe #9, John Kasich, Phil Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, James Haviland, John Kasich, Gary Mohr, Donald Morgan, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Madden, Thomas) (Entered: 10/04/2011)

1025

REPLY to Response to Motion re (251 in 2:09−cv−00823−GLF−MRA, 252 in 2:09−cv−00242−GLF−EPD, 269 in 2:10−cv−00027−GLF−MRA, 1021 in 2:04−cv−01156−GLF−MRA) MOTION to Intervene filed by Intervenor Plaintiff Reginald Brooks. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 10/05/2011)

1026 Defendants' Answer to the Seventh Amended Complaint on Behalf of Plaintiff Kenneth Smith ANSWER to 1009 Amended Complaint,, filed by All Defendants. (Wille, Charles) (Entered: 10/05/2011)

1027 Defendants'Answer to the Seventh Amended Complaint on Behalf of Plaintiff Billy Slagle ANSWER to 1010 Amended Complaint,, filed by All Defendants. (Wille, Charles) (Entered: 10/05/2011)

1028 Defendants' Answer to the Seventh Amended Complaint on Behalf of Plaintiff Grady Brinkley ANSWER to 1011 Amended Complaint,, filed by All Defendants. (Wille, Charles) (Entered: 10/05/2011)

1029 Defendants' Answer to the Seventh Amended Complaint on Behalf of Plaintiff Jonathan Monroe ANSWER to 1012 Amended Complaint,, filed by All Defendants. (Wille, Charles) (Entered: 10/05/2011)

1030 Defendants' Answer to the Seventh Amended Complaint on Behalf of Plaintiff Brett Hartman ANSWER to 1013 Amended Complaint,, filed by All Defendants. (Wille, Charles) (Entered: 10/05/2011)

1031 Defendants' Answer to the Seventh Amended Complaint on Behalf of Plaintiff Jerome Henderson ANSWER to 1014 Amended Complaint,, filed by All Defendants. (Wille, Charles) (Entered: 10/05/2011)

1032 Defendants' Answer to the Seventh Amended Complaint on Behalf of Plaintiff Romell Broom ANSWER to 1015 Amended Complaint,, filed by All Defendants. (Wille, Charles) (Entered: 10/05/2011)

1033 Defendants' Answer to the Seventh Amended Complaint on Behalf of Plaintiff Robert Bethel ANSWER to 1016 Amended Complaint,, filed by All Defendants. (Wille, Charles) (Entered: 10/05/2011)

1034 Defendants' Answer to the Seventh Amended Complaint on Behalf of Plaintiff James Conway ANSWER to 1017 Amended Complaint,, filed by All Defendants. (Wille, Charles) (Entered: 10/05/2011)

1035 Defendants' Answer to the Seventh Amended Complaint on Behalf of Plaintiff Donald Ketterer ANSWER to 1018 Amended Complaint,, filed by All Defendants. (Wille, Charles) (Entered: 10/05/2011)

1036 Defendants' Answer to the Seventh Amended Complaint on Behalf of Plaintiff Arthur Tyler ANSWER to 1019 Amended Complaint,, filed by All Defendants. (Wille, Charles) (Entered: 10/05/2011)

1037 Defendants' Answer to the Seventh Amended Complaint on Behalf of Plaintiff Phillip Elmore ANSWER to 1020 Amended Complaint,, filed by All Defendants. (Wille, Charles) (Entered: 10/05/2011)

1038

ORDER granting (1021) Brooks' Motion to Intervene in case 2:04−cv−01156−GLF−MRA. Signed by Judge Gregory L Frost on 10/7/11. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 10/07/2011)

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 110 of 114

10/07/2011 10/11/2011 10/13/2011 10/24/2011
10/24/2011 10/27/2011 10/31/2011
11/01/2011

1039

Intervenor COMPLAINT filed by Reginald Brooks against all Defendants. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 10/07/2011)

1040

NOTICE of Hearing: In−Court Status Conference set for 10/24/2011 01:00 PM in Courtroom 5 − Columbus before Judge Gregory L Frost. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 10/11/2011)

1041 Defendants' Answer to Complaint on Behalf of Plaintiff Reginald Brooks ANSWER to 1039 Intervenor Complaint, filed by All Defendants. (Wille, Charles) (Entered: 10/13/2011)

1042

RESPONSE in Opposition re (270 in 2:10−cv−00027−GLF−MRA, 270 in 2:10−cv−00027−GLF−MRA) MOTION for Temporary Restraining Order and MOTION for Preliminary Injunction Defendants' Memorandum in Response and Opposition to Brook's Motion for a Temporary Restraining Order and Preliminary Injunction filed by Defendants Terry J. Collins, Execution Team Members ##1−21, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Anonymous Execution Team Members #1−21, David Bobby, Terry J. Collins, Execution Team Member #10, Execution Team Member #17, Execution Team Member #18, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, John/Jane Doe #1, John/Jane Doe #10, John/Jane Doe #11, John/Jane Doe #12, John/Jane Doe #2, John/Jane Doe #3, John/Jane Doe #4, John/Jane Doe #5, John/Jane Doe #6, John/Jane Doe #7, John/Jane Doe #8, John/Jane Doe #9, John Kasich, Phil Kerns, Gary Mohr, Donald Morgan, Ted Strickland, Terry Collins, James Haviland, John Kasich, Gary Mohr, Donald Morgan, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Wille, Charles) (Entered: 10/24/2011)

Minute Entry for proceedings held before Judge Gregory L Frost: In−Court Status Conference held on 10/24/2011 (docketed for statistical purposes only). (Court Reporter Denise Errett.) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 10/24/2011)

Minute Entry for proceedings held before Judge Gregory L Frost: Status Conference held on 10/27/2011 (docketed for statistical purposes only). Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 10/27/2011)

1043

Minute Entry for proceedings held before Judge Gregory L Frost: Oral Hearing held on 10/31/2011 (Day One) re (1022 in 2:04−cv−01156−GLF−MRA, 1022 in 2:04−cv−01156−GLF−MRA, 253 in 2:09−cv−00242−GLF−EPD, 253 in 2:09−cv−00242−GLF−EPD, 270 in 2:10−cv−00027−GLF−MRA, 270 in 2:10−cv−00027−GLF−MRA, 252 in 2:09−cv−00823−GLF−MRA, 252 in 2:09−cv−00823−GLF−MRA) MOTION for Temporary Restraining Order and MOTION for Preliminary Injunction filed by Reginald Brooks; Plaintiff's counsel: A Bohnert, C Wright &R Porter; Defendants counsel: C Wille, T Madden &J Lovett; C/D: S Miller; Opening Statements by counsel; Plaintiff's witnesses who testified: Gary Mohr &Don Morgan (as on cross examination); Defendants' witness who testified: Gary Mohr. (Court Reporter Denise Errett.) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 11/01/2011)

1044

Minute Entry for proceedings held before Judge Gregory L Frost: Oral Hearing held on 11/1/2011 (Day Two) re (1022 in 2:04−cv−01156−GLF−MRA, 1022 in 2:04−cv−01156−GLF−MRA, 253 in 2:09−cv−00242−GLF−EPD, 253 in 2:09−cv−00242−GLF−EPD, 270 in 2:10−cv−00027−GLF−MRA, 270 in 2:10−cv−00027−GLF−MRA, 252 in 2:09−cv−00823−GLF−MRA, 252 in

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 111 of 114

11/02/2011
11/04/2011 11/04/2011 11/08/2011 11/08/2011 11/08/2011 11/08/2011

2:09−cv−00823−GLF−MRA) MOTION for Temporary Restraining Order and MOTION for Preliminary Injunction filed by Reginald Brooks; Plaintiff's counsel: A Bohnert, C Wright &R Porter; Defendants' counsel: C Wille, T Madden &J Lovett; C/D: S Miller; Plaintiff's witnesses who testified: Dr. Martin Escobar, Dr. Steven Bigley, Team Member 10 &Edwin Voorhies (all as on cross examination); Defendants witnesses who testified: Dr. Martin Escobar, Dr. Steven Bigley, Team Member 10, Dr. Mark Dershwitz, Edwin Voorhies, Team Member 21 &Juli Walburn. (Court Reporter Denise Errett.) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 11/02/2011)

1045

Minute Entry for proceedings held before Judge Gregory L Frost: Oral Hearing held on 11/2/2011 (Day Three) re (1022 in 2:04−cv−01156−GLF−MRA, 1022 in 2:04−cv−01156−GLF−MRA, 253 in 2:09−cv−00242−GLF−EPD, 253 in 2:09−cv−00242−GLF−EPD, 270 in 2:10−cv−00027−GLF−MRA, 270 in 2:10−cv−00027−GLF−MRA, 252 in 2:09−cv−00823−GLF−MRA, 252 in 2:09−cv−00823−GLF−MRA) MOTION for Temporary Restraining Order and MOTION for Preliminary Injunction filed by Reginald Brooks; Plaintiff counsel: A Bohnert, C Wright &R Porter; Defendants counsel: C Wille, T Madden &J Lovett; C/D: S Miller; Defendants witness who testified: William Winsley; Plaintiff witness who testified: Denise Dean; Evidence admitted; Counsel submitted closing arguments in writing and presented to the Court; The Court will take the matter under advisement and issue its decision in due course. (Court Reporter Denise Errett.) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Additional attachment(s) added on 11/4/2011: # 1 Supplement closing arguments) (sem1). (Entered: 11/02/2011)

1046

ORDER denying (1022) Motion for TRO and Preliminary Injunction in case 2:04−cv−01156−GLF−MRA. Signed by Judge Gregory L Frost on 11/4/11. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 11/04/2011)

1047

ORDER memorializing 10/24/11 Status Conference in that the Court VACATES the 11/4/11 Summary Judgment Deadline and the 12/19/11 Non−oral hearing date on Dispositive Motions. Signed by Judge Gregory L Frost on 11/4/11. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 11/04/2011)

1048

MOTION to Appoint Counsel on Behalf of James O'Neal by Defendants James O'Neal, James O'Neal, James O'Neal, James O'Neal. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Krumholtz, Michael) (Entered: 11/08/2011)

1049

MOTION to Intervene as Plaintiff−Intervenor by Defendant James O'Neal. (Attachments: # 1 Exhibit Exhibit 1, Part 1, # 2 Exhibit Exhibit 1, Part 2) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Krumholtz, Michael) (Entered: 11/08/2011)

1050

MOTION to Appoint Counsel by Intervenor Plaintiff Mark W Wiles, Plaintiffs John Drummond, John Drummond, John Drummond, John Drummond, Danny Hill, Danny Hill, Danny Hill, Danny Hill, George Skatzes, George Skatzes, George Skatzes, George Skatzes, David Sneed, David Sneed, David Sneed, David Sneed, Raymond A Twyford, III, Raymond A Twyford, III, Raymond A Twyford, III, Raymond A Twyford, III, Andre Williams, Andre Williams, Andre Williams, Andre Williams. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Bohnert, Allen) (Entered: 11/08/2011)

1051 MOTION to Appoint Counsel on Behalf of Ahmad Issa by Defendants Ahmad Fawzi Issa. Associated Cases: 2:04−cv−01156−GLF−MRA,

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 112 of 114

11/08/2011 11/09/2011 11/10/2011
11/10/2011 11/10/2011

2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Krumholtz, Michael) (Entered: 11/08/2011)

1052

MOTION to Intervene as Plaintiff−Intervenor by Defendant Ahmad Fawzi Issa. (Attachments: # 1 Exhibit Exhibit 1, part 1, # 2 Exhibit Exhibit 1, part 2) Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Krumholtz, Michael) (Entered: 11/08/2011)

1053

ORDER granting (1048) (1050) (1051) Motions to Appoint Attorneys Michael William Krumholtz, Kristie Young and Lawrence Greger for James O'Neal and Ahmad Issa; Attorneys Allen Bohnert and Carol Wright are appointed for John Drummond, Danny Hill, George Skatzes, David Sneed, Raymond Twyford, Mark Wiles and Andre Williams in case 2:04−cv−01156−GLF−MRA. Signed by Judge Gregory L Frost on 11/9/11. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) Modified text on 11/9/2011 (sem1). (Entered: 11/09/2011)

1054

Transcript of Motion for Temporary Restraining Order and Preliminary Injunction Proceedings (Volume I) held on October 31, 2011 before Judge Gregory L Frost. Court Reporter/Transcriber Denise N Errett, Telephone number 614−719−3029. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms − Electronic Availability of Transcripts). Please read this policy carefully.

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 12/1/2011. Redacted Transcript Deadline set for 12/12/2011. Release of Transcript Restriction set for 2/8/2012. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (kk2) (Entered: 11/10/2011)

1055

***SEALED*** Sealed Discussion − Pages 60 &61 re Transcript of Motion for Temporary Restraining Order and Preliminary Injunction Proceedings (Volume I) held on October 31, 2011 before Judge Gregory L Frost. Court Reporter/Transcriber Denise N Errett, Telephone number 614−719−3029. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (kk2) (Entered: 11/10/2011)

1056

Transcript of Motion for Temporary Restraining Order and Preliminary Injunction Proceedings (Volume II) held on November 1, 2011 before Judge Gregory L Frost. Court Reporter/Transcriber Denise N Errett, Telephone number 614−719−3029. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms − Electronic Availability of Transcripts). Please read this policy carefully.

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 12/1/2011. Redacted Transcript Deadline set for 12/12/2011. Release of Transcript Restriction set for 2/8/2012. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (kk2) (Entered: 11/10/2011)

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 113 of 114

11/10/2011

1057

Transcript of Motion for Temporary Restraining Order and Preliminary Injunction Proceedings (Volume III) held on November 2, 2011 before Judge Gregory L Frost. Court Reporter/Transcriber Denise N Errett, Telephone number 614−719−3029. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms − Electronic Availability of Transcripts). Please read this policy carefully.

11/11/2011 11/11/2011 11/14/2011 11/21/2011
11/28/2011

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 12/1/2011. Redacted Transcript Deadline set for 12/12/2011. Release of Transcript Restriction set for 2/8/2012. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (kk2) (Entered: 11/10/2011)

1058 MOTION to Intervene by Proposed Intervenor Plaintiff Gerald Robert Hand. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Kinsley, Jennifer) Modified text on 11/14/2011 (sem1). (Entered: 11/11/2011)

1059

Intervenor COMPLAINT , filed by Gerald Robert Hand. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6, # 7 Exhibit Exhibit 7)Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Kinsley, Jennifer) (Entered: 11/11/2011)

1060

ORDER re 1049 1052 1058 Motions to Intervene filed by Gerald Robert Hand, James O'Neal and Ahmad Fawzi; Defendants' shall file Memoranda in Opposition by 11/21/11; Movants shall file Reply Memoranda by 11/28/11; Non−oral hearing on said motions set for 11/29/11. Signed by Judge Gregory L Frost on 11/14/11. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 11/14/2011)

1061

RESPONSE in Opposition re (284 in 2:10−cv−00027−GLF−MRA) MOTION to Intervene as Plaintiff−Intervenor, (287 in 2:10−cv−00027−GLF−MRA) MOTION to Intervene as Plaintiff−Intervenor, (293 in 2:10−cv−00027−GLF−MRA) MOTION to Intervene by James Derrick O'Neal, Ahmad Fawzi Issa, &Gerald Hand filed by Defendants Terry J. Collins, Execution Team Members ##1−21, Gerald Robert Hand, Ahmad Fawzi Issa, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, James O'Neal, Ted Strickland, Anonymous Execution Team Members #1−21, David Bobby, Terry J. Collins, Execution Team Member #10, Execution Team Member #17, Execution Team Member #18, Gerald Robert Hand, Ahmad Fawzi Issa, John Kasich, Phillip Kerns, Gary Mohr, Donald Morgan, James O'Neal, Ted Strickland, Terry Collins, Gerald Robert Hand, Ahmad Fawzi Issa, John/Jane Doe #1, John/Jane Doe #10, John/Jane Doe #11, John/Jane Doe #12, John/Jane Doe #2, John/Jane Doe #3, John/Jane Doe #4, John/Jane Doe #5, John/Jane Doe #6, John/Jane Doe #7, John/Jane Doe #8, John/Jane Doe #9, John Kasich, Phil Kerns, Gary Mohr, Donald Morgan, James O'Neal, Ted Strickland, Terry Collins, James Haviland, John Kasich, Gary Mohr, Donald Morgan, Robert Taft, Edwin Voorhies, Reginald Wilkinson. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Madden, Thomas) (Entered: 11/21/2011)

1062

REPLY to Response to Motion re (284 in 2:10−cv−00027−GLF−MRA) MOTION to Intervene as Plaintiff−Intervenor filed by Defendant James O'Neal. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Krumholtz, Michael) (Entered: 11/28/2011)

Case: 2:04-cv-01156-GLF-MRA As of: 03/10/2012 04:29 PM EST 114 of 114

11/28/2011 11/30/2011 11/30/2011 11/30/2011 12/05/2011

1063

REPLY to Response to Motion re (287 in 2:10−cv−00027−GLF−MRA) MOTION to Intervene as Plaintiff−Intervenor filed by Defendant Ahmad Fawzi Issa. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (Krumholtz, Michael) (Entered: 11/28/2011)

1064

ORDER granting (1049) Plaintiff O'Neil's Motion to Intervene; granting (1052) Plaintiff Issa's Motion to Intervene; granting (1058) Plaintiff Hand's Motion to Intervene in case 2:04−cv−01156−GLF−MRA. Signed by Judge Gregory L Frost on 11/30/11. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 11/30/2011)

1065

Intervenor COMPLAINT filed by James O'Neal against all Defendants. (Attachments: # 1 Exhibit part two)Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 11/30/2011)

1066

Intervenor COMPLAINT filed by Ahmad Fawzi Issa against all Defendants. (Attachments: # 1 Exhibit part two)Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 11/30/2011)

1067

ORDER ADMINISTRATIVELY CLOSING CASE and consolidating these actions to C2−11−1016. Signed by Judge Gregory L Frost on 12/5/11. Associated Cases: 2:04−cv−01156−GLF−MRA, 2:09−cv−00242−GLF−EPD, 2:09−cv−00823−GLF−MRA, 2:10−cv−00027−GLF−MRA (sem1) (Entered: 12/05/2011)

 
 RECEIVED

JUN 1 0 2004

F I L E D ' IN THE UNITED STATES DISTRICT COURT

JAMES

BONINI,

FOR CLERK

SOUTHERN

DISTRICT

OF

OHIO,

EASTERN

iJ'f¥fio;..I~,~O"'~"N",;"-'::.-"'~','1'""11'-,-,'."......1""1:

2 8

COLUMBUS, OHIO

'
-- '-

'
----<:~- ~,::.- --..,.

t~f;~_':~~,-~,fr~;'j]'~ ~~;,:Jt:-:::'

ADREMY DENNIS Inmate Number 306-133 Post Office Box 788 Mansfield Correctional Inst Mansfield, Ohio 44091,
and
RICHARD W, COOEY, II, Inmate Number 194-016 Post Office Box 788 Mansfield Correctional Inst, Mansfield, Ohio 44091,

Plaintiffs,

vs.

-.

ROBERT TAFT, Governor State of Ohio 77 South High Street, 30th Floor Columbus, Ohio 43215,

C2.q Case Numbe.l;·

{)4 ~'53 2

Judge

,

,

JUDGE FROST I

Magistrate Jud~ MAGISTRATE .JUDGE AGEL

Plaintiffs' Original Complaint for Injunctive and Declaratory Relief, Attorney Fees, and Costs of Suit Pursuant to 42 U.S.C. § 1983

and

REGINALD A. WILKINSON, Director Ohio Dept. of Rehabilitation & Correction 1050 Freeway Drive North Columbus, Ohio 43229,

and

JAMES HAVILAND, Warden Southern Ohio Correctional Facility 1724 State Route 728 Lucasville, Ohio 45699,

Defendants.

COMPLAINT I. Nature of Action 1. This action is brought pursuant to 42 U.S.C. § 1983 for violations and threatened violations of Plaintiffs' rights to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution, and Plaintiffs' rights to be free from violations of their substantive and procedural due process rights under the Fourteenth Amendment to the United States Constitution. Plaintiffs seek equitable, injunctive, and declaratory relief. 2. In this action, Plaintiffs claim that Defendants' current method oflethal injection can and will, in effect, cause them to be tortured to death. No government within the United States can intentionally or negligently use an arbitrary, cruel, and/or unreliable method of execution. 3. Defendants intend to violate Plaintiffs' constitutional rights by executing them with drugs that include a paralyzing agent veterinarians will not use for the euthanasia of cats and dogs. This paralyzing drug can and will cast a chemical veil over the excruciatingly painful effects of death by suffocation and heart attack. Defendants' lethal injection protocol includes an unreliable ultrashort-acting anesthetic that can and will leave Plaintiffs conscious but trapped in a paralyzed body wracked with the pain of suffocation and a heart attack. Defendants intend to execute Plaintiffs with unreliable and arbitrary drugs, administered by inadequately trained personnel, who use inappropriate equipment and methods to cause death by lethal injection. 4. The claims in this complaint are cognizable under 42 U.S.c. § 1983; they need not be brought in a habeas action. This lawsuit is not and should not be treated as being a successor habeas corpus petition. See Nelson v. Campbell, 541 U.S. _ , 2004 U.S. LEXIS 3680 (2004). Plaintiffs are not challenging their underlying capital convictions or death sentences in this
2

present action; nor are they saying that Defendants could never execute them. Plaintiffs could be executed if (1) no separate legal challenge overturns their capital convictions or death sentences; (2) they are not granted executive clemency; and (3) Defendants design a constitutionally acceptable method for executing them. 5. Plaintiffs seek a preliminary and permanent injunction preventing Defendants from executing them by the means currently employed for carrying out an execution by lethal injection in the State of Ohio. Plaintiffs also seek an Order declaring that Defendants' current methods for conducting an execution by lethal injection violates the Eighth and Fourteenth Amendments to the United States Constitution.
II. Plaintiffs 6. Adremy Dennis is a United States citizen and a resident of the State of Ohio. He is currently
a death-sentenced inmate in the custody of Defendants, and under the control and supervision of the State of Ohio Department of Rehabilitation and Correction, who have him incarcerated in the Mansfield Correctional Institution in Mansfield, Ohio, under Inmate #306-133. If Plaintiff Dennis's capital conviction and/or death sentence is not overturned in another judicial proceeding or through executive clemency, then Defendants will execute him. Upon information and belief, it is the intention of Defendants, acting in concert with other state officials not named as defendants herein, to use the lethal injection methods described herein to execute Adremy Dennis in the death house located on the grounds of the Southern Ohio Correctional Facility, which is operated and controlled by the Defendants. 7. Richard W. Cooey, II, is a United States citizen and a resident of the State of Ohio. He is currently a death-sentenced inmate in the custody of Defendants, and under the control and
3

supervision ofthe State of Ohio Department of Rehabilitation and Correction, who have him incarcerated in the Mansfield Correctional Institution in Mansfield, Ohio, under Inmate #194016. IfPlaintiffCooey's capital conviction and/or death sentence is not overturned in another judicial proceeding or through executive clemency, then Defendants will execute him. Upon information and belief, it is the intention of Defendants, acting in concert with other state officials not named as defendants herein, to use the lethal injection methods described herein to execute Richard W. Cooey, II, in the death house located on the grounds of the Southern Ohio Correctional Facility, which is operated and controlled by the Defendants.
III. Defendants 8. Defendant Robert Taft is, and at all times relevant was, the Governor of the State of Ohio. He
is the final executive authority in the state, statutorily and constitutionally responsible for the execution of all sentences of death in Ohio and the manner in which those sentences are executed. 9. Defendant Reginald A. Wilkinson is, and at all times relevant was, the Director of the State of Ohio Department of Rehabilitation and Correction ("DRC"), a department of the State of Ohio that was created and is maintained pursuant to Ohio Revised Code Section 5120. As such, Defendant Wilkinson is charged and authorized under Ohio Revised Code Section 5120.01 to prescribe and direct the promulgation of rules and regulations for the DRC, including the rules and regulations for the conduct ofprison operations and execution procedures. He is sued here in his individual and official capacity for the purpose of obtaining declaratory and injunctive relief.
4

10. Defendant James Haviland is, and at all times relevant was, Warden of the Southern Ohio Correctional Facility at Lucasville ("SOCF"), a correctional institution of the DRC that was created and is maintained pursuant to Ohio Revised Code Section 5120.05, and which is the prison at which sentences of death are executed in the State of Ohio. Pursuant to Ohio Revised Code Section 5120.38, Defendant Haviland, as the Warden of SOCF, is charged with management of SOCF and the oversight and conduct of operations there, including the oversight and conduct of executions carried out there. He is sued here in his individual and official capacity for the purpose of obtaining declaratory and injunctive relief.
11. Defendants, and each of them at all times relevant hereto, were acting in their respective official capacities with respect to all acts described herein, and were in each instance acting under the color and authority of state law. Upon information and belief, unless preliminarily and permanently enjoined, the Defendants, and each of them, intend to act in their respective official capacities and under the authority of state law by executing Plaintiffs by utilizing lethal injection methods that will violate their constitutional rights. IV. Jurisdiction and Venue
12. Plaintiffs bring this action to enforce and protect rights conferred by the Eighth Amendment to the United States Constitution, as incorporated by the Fourteenth Amendment to the United States Constitution, and to enforce and protect rights conferred by the Fourteenth Amendment to the United States Constitution.
13. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331, in that it arises under the Constitution of the United States; under 28 U.S.C. § 1343(a)(3), in that it is brought to redress deprivations, under color of state authority, ofrights, privileges, and immunities secured 5

by the United States Constitution; under 28 U.S.c. § 1343(a)(4), in that it seeks to secure equitable relief under an act of Congress, specifically 42 U.S.C. § 1983, which provides a cause of action for the protection of civil rights; under 28 U.S.C. § 2201(a), in that, one purpose of this action is to secure declaratory relief; and under 28 U.S.c. § 2202, in that one purpose ofthis action is to secure preliminary and pennanent injunctive relief. 14. This Court has supplemental jurisdiction over any state statutory claim asserted by Plaintiffs pursuant 28 U.s.C. § 1367, in that, the state and federal claims are derived from a common nucleus of operative facts. 15. This Court has venue under 28 U.S.C. § 1391(b)(1) in that all of the Defendants are situated within the State of Ohio and each of them resides within the Southern District of Ohio, and under 28 U.S.C. § 1391(b)(2) in that all of the events described herein have and will transpire (absent judicial relief) within this judicial district. Defendant Taft exercises his final authority over the other Defendants in the seat of Ohio's government, located in Franklin County, Ohio; the lethal injection execution procedures were promulgated by Defendant Wilkinson in Franklin County, Ohio; and Warden Haviland has executed other Ohio inmates and intends to execute Plaintiffs in Scioto County, Ohio, by the method oflethal injection described herein.
V. Facts Common to All Claims and Relief Sought 16. Plaintiffs incorporate by reference all facts and allegations described throughout this complaint
as if fully re-written herein. 17. If Plaintiffs' capital convictions and/or death sentences are not overturned in another judicial
proceeding or through executive clemency, then Defendants will execute Plaintiffs on a date yet to be fixed by the Ohio Supreme Court.
6

18. Defendants intend to execute Plaintiffs by employing the same means and methods oflethal injection as have been used since Ohio resumed executions in 1999. As of2001, Ohio's sole means of execution has been lethal injection.
19. According to a letter written by Defendant Haviland dated April 19, 2002 (Exhibit I), and two letters written by Vince Lagana, one dated May 30, 2002 (Exhibit 2(A)), the other dated January 30, 2004 (Exhibit 2(B)), a staff attorney for the Ohio Department of Rehabilitation and Correction, Defendants have executed others and, upon information and belief, Defendants intend to execute Plaintiffs by the following means. Three drugs will be administered: two grams of thiopental sodium in normal saline concentration; one hundred milligrams of pancuronium bromide in normal saline concentration; and 100 milliequivalents of potassium chloride in normal saline concentration. At least the following equipment will be utilized: Angiocath Abbocath-T; primary IV Set No. 1820 (70 inch); and 0.9% sodium chloride, 1000 m!.
20. According to the letter dated May 30, 2002 authored by attorney Lagana (Exhibit 2(A)), Defendants contend that they do not have to release all information descriptive of the lethal injection procedures, including but not limited to information regarding any other equipment used; the personnel involved in the execution procedures; the education, training, expertise and experience of the personnel involved; or any other details surrounding this procedure.
21. Upon information and belief, neither Defendants nor their agents have publicly disclosed all material and relevant details surrounding the process by which Defendants chose the method oflethal injection they use; nor have Defendants or their agents publicly disclosed all material and relevant details pertaining to the personnel involved in the lethal injection execution 7

- - - - - - - - - - - - - - - - - - - ----
procedure, including but not limited to any education, credentials, training, expertise, or other factors that qualify or disqualify them from being involved in Ohio's lethal injection execution procedures. 22. Upon infonnation and belief, Defendants and/or their agents simply copied lethal injection procedures from another state or other states without investing meaningful and independent efforts designed to ensure that Ohio's lethal injection execution procedures comply with contemporary medical standards and long-standing constitutional standards that forbid the infliction of excruciating, cruel, and unusual pain and punishment. 23. Upon infonnation and belief, Defendants' intended means of executing Plaintiffs are inadequate, unreliable, and arbitrary; and Defendants' lethal injection execution procedures will cause Plaintiffs to suffer excruciating pain and cruel and unusual punishment. Expert Opinion on Ohio's Lethal Injection Drugs 24. According to the attached affidavit of Mark J.S. Heath (Exhibit 3), a medical doctor board certified in anesthesiology, Defendants' lethal injection execution procedure will, upon infonnation and belief, violate Plaintiffs' constitutional rights. Dr. Heath's affidavit was prepared for previous litigation wherein two Ohio death row inmates (Lewis Williams and John Glenn Roe) filed a complaint similar to the instant complaint to challenge the constitutionality of Ohio's execution procedures. That earlier lawsuit pre-dated the United States Supreme Court's decision in Nelson v. Campbell (decided May 24, 2004). As a result, that lawsuit was treated as a successor habeas petition and dismissed; and Defendants executed Mr. Williams and Mr. Roe. Upon infonnation and belief, Dr. Heath's position as set forth in his attached affidavit remains substantially the same; and he or a similarly qualified expert can and will
8

provide testimony in support of the instant lawsuit by providing expert testimony to show that
Defendants' execution procedures violate Plaintiffs' constitutional rights for reasons that
include but are not limited to the following:
A) The letters by Warden Haviland and attorney Lagana state that as part of its protocol for lethal injection Ohio uses the drugs sodium thiopental (also know as "thiopental sodium" and "pentothal',), pancuronium bromide (also know as "pancuronium" and "Pavulon"), and potassium chloride (also known as "KCI"). Heath Affidavit ~ 6.
B) A major concern about the protocol relates to the use of the drug pancuronium bromide. Pancuronium paralyzes all voluntary muscles, but does not affect sensation, consciousness, cognition, or the ability to feel pain and suffocation. Ifthe thiopental and potassium are to be given in doses sufficient to cause death, then it is my opinion held to a reasonable degree of medical certainty that there would be no rational or medically justifiable place in the protocol for pancuronium. Heath Affidavit ~ 8.
C) If thiopental is not properly administered in a dose sufficient to cause death or at least the loss of consciousness for the duration of the execution procedure, then it is my opinion held to a reasonable degree of medical certainty that the use of pancuronium places the condemned inmate at risk for consciously experiencing paralysis, suffocation, and the excruciating pain of the intravenous injection of high dose potassium chloride. Heath Affidavit ~ 9.
D) Based on the information available to me, it is my opinion held to a reasonable degree of medical certainty that Ohio's lethal injection protocol creates an unacceptable risk that the inmate will not be anesthetized to the point of being unconscious and unaware of pain for the duration of the execution procedure. Ifthe inmate is not first successfully anesthetized, then it is my opinion to a reasonable degree ofmedical certainty that the pancuronium will paralyze all voluntary muscles and mask external, physical indications of the excruciating pain being experienced by the inmate during the process of suffocating (caused by the pancuronium) and having a cardiac arrest (caused by the potassium chloride). Heath Affidavit ~ 10.
E) If administered alone, a lethal dose of pancuronium would not immediately cause a condemned inmate to lose consciousness. It would totally immobilize the inmate by paralyzing all voluntary muscles and the diaphragm, causing the inmate to suffocate to death while experiencing an intense, conscious desire to inhale. Ultimately, consciousness would be lost, but it would not be lost as an inunediate and direct result of the pancuronium. Rather, the loss of consciousness would be due to
9

suffocation, and would be preceded by the tonnent and agony caused by suffocation. Heath Affidavit ~ 11.
F) It is my understanding that Ohio's execution protocol requires the presence of media witnesses to the execution, and pennits the presence of witness chosen by the inmate and chosen by the victim's surviving family members. It is my opinion based on a reasonable degree of medical certainty that the use of pancuronium effectively nullifies the ability of witnesses to discem whether or not the condemned prisoner is experiencing a peaceful or agonizing death. Regardless of the experience of the condenmed prisoner, whether he or she is deeply unconscious or experiencing the excruciation of suffocation, paralysis, and potassium injection, he or she will appear to witnesses to be serene and peaceful due to the relaxation and immobilization of the facial and other skeletal muscles. Heath Affidavit ~ 13.
G) Based on my research into issues related to lethal execution, I know that there was a time when pancuronium was an acceptable drug for use by veterinarians in the euthanasia of household pets such as dogs and cats; but that the use of pancuronium is now prohibited by many veterinary guidelines in this and other countries for precisely the reasons outlined above. Veterinary standards forbid creating the risk that household pets would die while pancuronium masks the type of excruciating pain human beings are exposed to in Ohio's execution protocol. The use of pancuronium fails to comport with the evolving "standard of decency" regarding the ending of life in household pets. In my medical opinion, based on a reasonable degree of medical certainty, the use of pancuronium in the lethal injection protocol for executing human beings violates standards of decency designed to prevent the infliction of excruciating pain and suffering on human beings. Heath Affidavit ~ 14.
H) Another major concern I have based on what I know about Ohio's lethal injection protocol relates to the use of sodium thiopental. Sodium thiopental is an ultrashort-acting barbiturate with a very short shelf life in liquid fonn. Thiopental is distributed in powder fonn to increase its shelf life; it must be mixed into a liquid solution by trained personal before it can be injected. Heath Affidavit ~ 15.
I) When anesthesiologists use sodium thiopental, we do so for the purposes of temporarily anesthetizing patients for sufficient time to intubate the trachea and institute mechanical support of ventilation and respiration. Once this has been achieved, additional drugs are administered to maintain a "surgical depth" or "surgical plane" of anesthesia (i.e., a level of anesthesia deep enough to ensure that a surgical patient feels no pain and is unconscious for the duration of the surgical procedure). The medical utility of thiopental derives from its ultrashort-acting properties: if unanticipated obstacles hinder or prevent successful intubation, patients will quickly regain consciousness and will resume ventilation and respiration on their own. Heath Affidavit ~ 16.
10

J) The benefits of thiopental in the operating room engender serious risks in the execution chamber. Based on the information I have available to me concerning Ohio's execution protocol, a two (2) gram dose of sodium thiopental is apparently administered in a single injection from a single syringe. By contrast, based on my research and the research of others into the procedures for executing human beings by means oflethal injection, the original design of the lethal injection protocol called for the continuous intravenous administration of an ultrashort-acting barbiturate. Based on my research and the research of others, the central elements of the lethalinjection procedure used in Ohio is similar to the one adopted many years ago in Oklahoma (which, it appears, many states used as a model without substantive independent research). Oklahoma requires the "continuous intravenous administration of an ultrashort-acting barbiturate" (Oklahoma Statutes, Title 22 Criminal Procedure, Chapter 17 part 1014 A). It does not appear that Ohio's protocol includes this "continuous" requirement. The use of a continuous administration of the ultrashort-acting barbiturate is essential to ensure continued and sustained unconsciousness during the administration of pancuronium and potassium chloride. It is my opinion based on a reasonable degree of medical certainty that the failure to require a continuous infusion of thiopental places the condemned inmate at a needless and significant risk for the conscious experience of paralysis during the excruciating pain of both suffocation and the intravenous injection of potassium chloride. Heath Affidavit, 17.
K) Based on my research into lethal injection, the dose of pentothal described in the Ohio protocol, 2 grams, is considerably lower than the doses described in the protocols of many states and the Federal Government. It is my opinion based on a reasonable degree of medical certainty that Ohio's relatively low dose ofthiopental amplifies the concern relating to the single injection (as opposed to continuous infusion) of this ultrashort-acting barbiturate, thereby further elevating the risk that the condemned person will suffer excruciating pain masked by the pancuronium. Heath Mfidavit, 18.
L) Above and beyond my concerns stated above about the drugs used in Ohio, the details of Ohio's lethal injection protocol that I have been made aware of do not account for procedures designed to ensure the proper preparation of the drugs used. I have not seen details regarding the credentials, certification, experience, or proficiency of the personnel who will be responsible for the mixing of the thiopental from powder form, or for the drawing up of the drugs into the syringes. Preparation of drugs, particularly for intravenous use, is a technical task requiring significant training in pharmaceutical concepts and calculations. It is my opinion based on a reasonable degree of medical certainty, and based on my review oflethal execution procedures in states that have disclosed more detailed information that what I have seen about Ohio's procedures, that there exist many risks associated with drug
11

preparation that, if not properly accOlmted for, further elevate the risk that an inmate will consciously experience excruciating pain during the lethal injection procedures. Heath Affidavit, 20.
M) The information available to me provides inadequate detail regarding the training, credentials, certification, experience, or proficiency ofany prison employee, nurse or paramedic who performs the execution procedure. The absence of such detail raises critical questions about the degree to which condemned inmates risk suffering excruciating pain during the lethal injection procedure. It is my opinion based on a reasonable degree of medical certainty that the correct and safe management ofintravenous drug and fluid administration requires a significant level ofprofessional acumen, and can not be adequately performed by personnel lacking the requisite training and experience. The great majority ofnurses are not trained in the use of ultrashort-acting barbiturates; indeed, this class ofdrugs is essentially only used by nurses who have significant experience in intensive care units and as nurse anesthetists. Very few paramedics are trained or experienced in the use of ultrashortacting barbiturates. Based on my medical training and experience, and based upon my research of lethal injection procedures and practices, inadequacies in these areas elevate the risk that the lethal injection procedure will cause the condemned to suffer excruciating pain during the execution process. Heath Affidavit, 22.
N) Based on my research into methods oflethal injection used by various states and the federal government, and based on my training and experience as a medical doctor specializing in anesthesiology, it is my opinion based on a reasonable degree ofmedical certainty that, given the apparent absence of a central role for a properly trained medical or veterinary professional in Ohio's execution procedure, it can and should be presumed that the lethal injection procedure Ohio employees creates medically unacceptable risks ofinfliction excruciating pain and suffering on inmates during the lethal injection procedure. Heath Affidavit, 26.
Firsthand Account of Adverse Effects of Drug Failure
25. Dr. Heath's opinions and observations are corroborated by the experience of persons like eye-
surgery patient Carol Weihrer. During Ms. Weihrer's surgery, the sedative she received was
ineffectual, leaving Ms. Weihrer conscious during her surgery. Due to the administration of a
neuromuscular blocking agent like pancuronium bromide, however, she was unable to tell her
doctors she was awake and in terrible pain: "I therefore experienced what has come to be
known as Anesthesia Awareness, in which I was able to think lucidly, hear, perceive and feel
12

everything that was going on during the surgery, but I was unable to move. It burnt like the fires of hell. It was the most terrifying, torturous experience you can imagine. The experience was worse than death." (Exhibit 4.) The paralytic agent made Ms. Weihrer appear sedated even though she was experiencing intense pain as the doctors removed her eyeball. The combination ofthe kinds of chemicals Defendants use during Ohio's lethal injection procedures resulted in this horritying experience. 26. Defendants cannot rule out the possibility that the thiopental sodium (the short-acting sedative, which is the first drug administered during the lethal injection procedure) will fail to adequately sedate Plaintiffs. 27. Defendants' lethal injection protocol fails to require that a person with adequate medical training be present to witness the execution, to employ the medical monitoring equipment necessary to detect failures in the procedure, and to take appropriate steps if and when it becomes evident that the condemned inmate is suffering excruciating pain. 28. Defendants' lethal injection protocol does not include nor require the use of any medical equipment designed to monitor the condemned person's heart beat, pulse, or brain waves during the execution (i.e., from the point at which the condemned person is strapped to the execution table in the execution chamber until death is pronounced). Improper Chemical Veil 29. Upon information and belief, Defendants have no medically justified reason for using pancuroruum (or any other neuromuscular blocking agent) during the lethal injection procedures.
13

30. Upon infonnation and belief, using pancuronium or any other neuromuscular blocking agent in the lethal injection protocol serves no purpose other than to place Plaintiffs into a state of "chemical entombment" while they consciously experience suffocation, the pain of potassium chloride, and the pain of cardiac arrest.
31. Upon infonnation and belief, Defendants intend to use pancuronium or any other neuromuscular blocking agent for the sole but unconstitutional purpose of wrapping Plaintiffs in a chemical veil to hide the muscular convulsions otherwise evident in human beings fighting suffocation and experiencing cardiac arrest.
32. Upon infonnation and belief, Defendants can offer no rational, non-arbitrary justification for using pancuronium. At best, Defendants' use of this drug creates unconstitutional risks in service of the unjustifiable purpose offered by Georgia Medical Examiner Dr. Sperry, who said, when testifYing about a similar lethal injection method, that a neuromuscular blocking agent is used "to paralyze all the muscles such that those outwardly aesthetically unpleasant things are not seen and do not occur." State v. Michael Wayne Nance, Gwinnett County Superior Court, Indictment No. 95-B-2461-4, Tr. 39-40, July 30, 2002. Dr. Sperry may have meant that, even when properly sedated, a condemned person's body may convulse while dying during an execution by lethal injection, and these convulsions would be "aesthetically unpleasant" for executioners and witnesses. This is not a constitutionally valid purpose.
33. Once paralyzed, neither the Defendants nor the witnesses could tell if the sedative failed, leaving Plaintiffs in horrific but undetectable pain. Witnesses viewing the lethal injection procedure and the general public will never realize the cruel fraud perpetrated upon them:
14

instead ofwitnessing an inmate quiet and motionless, euphemistically thought of as being "put to sleep," they are in fact witnessing the chemical cover-up of an act of excruciating torture. 34. Upon information and belief, Defendants fail to include in their execution methods readily available medical equipment which, if used by properly trained personnel, would alert Defendants and their executioner agents to the fact that the sedative failed but the paralytic agent took effect, thus leaving Plaintiffs conscious but experiencing extreme pain as would be manifest by bodily functions monitored by the medical equipment. Defendants' methods of execution violate Plaintiffs' constitutional rights by reason of the failure to put in place procedures for the use of medical monitoring equipment and other such necessary procedures and properly trained execution personnel to respond appropriately to the information revealed by the medical equipment. Inadequate Training of Execution Personnel 35. Upon information and belief, Defendants' lethal injection protocol fails to provide a person or persons with adequate medical training to witness the execution and stand ready to take appropriate steps if and when it becomes evident that the condemned inmate is suffering excruciating pain, and/or the drugs are not being properly delivered into the condemned inmate's body, and/or the drugs are not having their intended effect. 36. Upon information and belief, Defendants' failure to provide rational, reliable directions or standards for the requisite training, education, and expertise of the personnel who carry out executions by lethal injection in Ohio leads to the conclusion that Defendants' execution methods violates Plain~iffs' constitutional rights.
15

37. Upon infonnation and belief, Defendants' lethal injection execution procedures fail to address
all factors necessary to ensure compliance with constitutional requirements, including but not
limited to the following factors. If some or all of these factors have been addressed, then
Defendants have violated Plaintiffs' constitutional rights by failure to disclose them:
A) the minimum qualifications, expertise, and training required for the different personnel perfonning the tasks involved in the lethal injection procedure after the catheter is inserted;
B) the methods for obtaining, storing, mixing, and appropriately labeling the drugs, the minimum qualifications and expertise required for the person who will be determining the concentration and dosage of each drug to give, and the criteria that shall be used in exercising this discretion;
C) the manner in which the N tubing, three-way valve, saline solution and other apparatus shall be modified or fixed in the event it is malfunctioning during the execution process, the minimum qualifications and expertise required of the person who shall have the discretion to decide to attempt such action, and the criteria that shall be used in exercising this discretion;
D) the manner in which a heart monitoring system shall be installed and utilized to ensure that the inmate is deeply sedated while dying; and the qualifications and expertise required for the person who operates this equipment;
E) the manner in which the IV catheters shall be inserted into the condenmed prisoner, the minimum qualifications and expertise required for the person who is given the responsibility and discretion to decide when efforts at inserting the N catheters should be abandoned in favor of some other constitutionally acceptable procedure; and the manner in which the condition of the condenmed prisoner will be monitored to confinn that proceeding to the next procedure would not inflict severe and unnecessary pain and suffering on the condemned prisoner;
F) the minimum qualifications and expertise required ofthe person who is given the responsibility and discretion to order the staff to divert from the established protocols if necessary to avoid inflicting severe and unnecessary pain and suffering on the condemned prisoner, and the criteria that shall be used in exercising this discretion; and
16

G) the minimum qualifications and expertise required ofthe person who is given the responsibility and discretion to ensure that appropriate procedures are followed in response to unanticipated problems or events arising during the lethal injection procedure, and the criteria that shall be used in exercising this discretion.
Veterinarians Cannot Eutbanize House Pets witb tbe Drugs Defendants Use to Execute Human Beings 38. Defendants intend to execute Plaintiffs by using drugs veterinarians cannot use during the
euthenasia of house pets. Specifically, using a paralyzing, neuromuscular blocking agent violates veterinarians' ethical standards. 39. Using paralyzing agents violates veterinarians' ethical standards. The leading professional association of veterinarians prohibits the use ofparalyzing agents during the euthanasia of house pets. The American Veterinarian Medical Association's (AVMA) year 2000 Report on Euthanasia clearly declares that "[a] combination of pentobarbital [an anesthetic in the same category of drugs as thiopental] with a nuero-muscular blocking agent [like pancuronium] is not an acceptable euthanasia agent." (Exhibit 5.) It is not acceptable because the paralytic agent may mask the failure of the other drugs, resulting in a painful death. 40. Since 1981, many states have passed laws governing the euthanasia ofpets that preclude the use of a sedative in conjunction with a neuromuscular blocking agent. Texas, Tex. Health & Safety Code, § 821.052(a); Florida, Fla. Stat. §§ 828.058 and 828.065 (enacted in 1984); Georgia, Ga Code Ann. § 4-11-5.1 (enacted in 1990); Maine, Me. Rev. Stat. Ann., Tit. 17, § 1044 (enacted in 1987); Maryland, Md. Code Ann., Criminal Law, § 10-611 (enacted in 2002); Massachusetts, Mass. Gen. Laws § 140:151A (enacted in 1985); New Jersey, N.J.S.A. 4:22-19.3 (enacted in 1987); New York, N.Y.Agric. & Mkts § 374 (enacted in 1987); Oklahoma, Okla. Stat., Tit. 4,
17

§ 501 (enacted in 1981); Tennessee, Tenn.Code Ann. § 44-17-303 (enacted in 2001). Other states have implicitly banned such practices. See Illinois, 510 Ill. Compo Stat., ch. 70, § 2.09; Kansas, Kan. Stat. Ann. § 47-1718(a); Louisiana, La. Rev. Stat. Ann. § 3:2465; Missouri, 2 CSR 30-9.020(F)(5); Rhode Island, R.1. Gen. Laws § 4-1-34, Connecticut, Conn. Gen.Stat. § 22-344a; Delaware, Del.Code Ann., Tit. 3, § 8001; Kentucky, Ky.Rev.Stat. Ann. § 321.181(17) and 201 KAR 16:090, § 5(1); South Carolina, S.C.Code Ann. § 47-3-420. See Exhibit 6 (chart outlining statutes). 41. These statutory declarations, which embody societal values for the euthenasia of house pets, underscore the inhumanity of methods by which Defendants intend to execute Plaintiffs. Euthanasia techniques banned as cruel to dogs and cats by definition violate standards of decency regarding the execution of human beings. The discordance between standards for pet euthenasia and Ohio's lethal execution procedures proves that Defendants' lethal injection procedures fall far outside contemporary standards of decency. Compare Atkins V. Virginia, 536 U.S. 304, 315 (2002) ("It is not so much the number of these States [that have banned executing those with retardation] that is significant, but the consistency of the direction of change."). Plaintiffs' Counsel Should Have The Right To Witness The Execution 42. Plaintiffs have a right to select three persons who are not confined in any state institution to witness their executions; plus they can ask the ciergyperson in attendance to witness their executions. O.R.C. § 2949.25(A)(5). 43. Defendants' execution procedures do not provide an automatic right for counsel for Plaintiffs to be a witness to those parts of the execution process that are seen by those who are witnesses
18

to an execution. Instead, Defendants' execution procedures pennit counsel for Plaintiffs to be a witness to the execution only if Plaintiffs nominate counsel to be one of the three witnesses allotted by O.R.C. § 2949.25(AX5), and by Defendants' customs and practices governing who actually witnesses an execution. 44. Defendants execution procedures and O.R.C. § 2949.25(A)(2) pennit the sheriffof the county where a condenmed person was tried and convicted to be a witness to an execution. Defendants practices, routines, and fonnal and infonnal procedures and customs governing executions, pennit a prosecutor from the county where the condemned inmate was tried and convicted to witness the execution without requiring representatives of the victim to yield one ofthe three witness positions they are entitled to select pursuant to O.R.C. § 2949.25(A)(6). 45. Plaintiffs should have the right to have their counsel witness their executions, just as representatives of the State, law enforcement, and the prosecuting authority have a right to witness the execution. Plaintiffs should be able to exercise this right without being forced to choose between having their counsel be a witness in lieu of one ofthe three persons they can otherwise choose to be witnesses pursuant to O.R.C. § 2949.25(A)(5). Plaintiffs are entitled to have their counsel witness Plaintiffs' executions in order to ensure that Plaintiffs have an advocate present to represent their interests in the event something goes wrong during the execution process. 46. Defendants have the power and authority to provide Plaintiffs with the right to have their counsel witness Plaintiffs' executions without forcing Plaintiffs to use one of the three witness slots allotted by O.R.C. § 2949.25(A)(5). The fact that Defendants have this power and authority is illustrated and proven by the fact that Defendants have pennitted and/or have expressed a
19

willingness to permit persons to witness executions even if those persons do not fit squarely into one of the categories described in O.R.C. § 2949.25, including but not limited to allowing a prosecutor from the county where the condemned person was tried and convicted to witness an execution without taking one of the three witness slots allotted to the victim's family by O.R.C. § 2949.25(A)(6); allowing persons to witness an execution on behalf of the victim when they were not chosen to be a witness by an immediate member ofthe victim's family; and/or allowing persons to witness an execution when those persons were representatives of a victim whose murder did not lead to the death sentence underlying the execution. Injunctive Relief Warranted 47. Plaintiffs are entitled to a preliminary injunction stopping Defendants from executing them with the methods and procedures described herein because (I) there is a significant likelihood that they will prevail on the merits; (2) they will suffer irreparable harm ifthey are executed; (3) there is a great impact on the public's interest in making sure our government does not behave like those of other nations we roundly condemn for utilizing execution methods that violate our nation's constitntional proscription against cruel and unusual punishment; and (4) there is a substantial possibility that others under a sentence ofdeath in Ohio will suffer unconstitutional executions unless this Court requires Defendants to design constitutionally acceptable execution procedures. Vittitow v. City of Upper Arlington, 43 F. 3d 1l00, 1l08-1109 (6th Cir. 1995); Basicomputer Corp. v. Scott, 973 F. 2d 507, 511 (6th Cir. 1992). 48. Plaintiffs do not seek injunctive relief under 42 U.S.C. § 1983 as a means of attacking their underlying convictions or death sentences; rather, they simply seek to utilize 42 U.S.C. § 1983 as a legitimate means to stop Defendants from executing them in a manner that violates their
20

constitutional rights. If Defendants implement execution procedures that do not violate Plaintiffs' constitutional rights, then Defendants will be entitled to execute Plaintiffs barring relief granted through some other judicial or clemency proceeding. 49.42 U.S.c. § 1983 provides, in pertinent part, for the protection of "any rights, privileges, or immunities secured by the Constitution and laws" against infringement by the states. When these rights are violated, 42 U.S.C. § 1983 creates an action for damages and injunctive relief for the benefit of "any citizen of the United States" against the state actor responsible for the violation. In accordance with the remedial nature of the statute, the coverage of 42 U.S.C. § 1983 must be "liberally and beneficently construed." Dennis v. Higgins, 498 U.S. 439, 443 (1991) (quoting Monell v. New York City Dept. of Social Services, 436 U.S. 658, 684 (1978». In order to effect this liberal construction, the Court has "given full effect to [the statute's] broad language" by recognizing that 42 U.S.C. § 1983 provides a remedy "against all forms ofofficial violation of federally protected rights." Id. at 444. 50. The Eighth Amendment's proscription against cruel and unusual punishment forbids the infliction of unnecessary pain in the execution of a death sentence. Louisiana ex reI. Francis v. Resweber, 329 U.S. 459, 463 (1947) (opinion of Reed, J.). A punishment is particularly constitutionally offensive if it involves the foreseeable infliction of suffering. Furman v. Georgia, 408 U.S. 238, 273 (1973), citing Resweber, supra (had failed execution been intentional and not unforeseen, punishment would have been, like torture, "so degrading and indecent as to amount to a refusal to accord the criminal human status')' State officials cannot use methods of execution that demonstrate deliberate indifference towards rights protected by
21

the Eighth and Fourteenth Amendments. See generally Nelson v. Campbell, 541 U.S. _ , 2004 U.S. LEXIS 3680 (2004). 51. It is foreseeable that death by lethal injection under the methods employed by Defendants will cause Plaintiffs to suffer gratuitous pain. Far from producing a rapid and sustained loss of consciousness and a humane death, Defendants' means and methods oflethal injection can and will cause Plaintiffs to consciously suffer a painful and protracted death. 52. Defendants have failed to demonstrate that they have in place procedures and protocols to guard against equipment failure, drug failure, or other things that can and predictably will go wrong during the lethal injection process. Defendants have failed to demonstrate that they have installed equipment to monitor Plaintiffs' bodily functions so that they can immediately detect any failure in the drug regimen used to sedate and then kill Plaintiffs. Defendants have failed to demonstrate that they have chosen and plan to use drugs that will achieve the stated purpose of causing Plaintiffs' deaths in compliance with constitutional requirements.
VI. First Claim: Eighth Amendment Violation 53. Plaintiffs incorporate all preceding paragraphs as if fully rewritten herein. 54. Defendants have created, maintained and implemented lethal injection procedures, practices,
customs, and methods that they intend to use to execute Plaintiffs. Defendants' lethal injection methods manifest their deliberate indifference towards Plaintiffs' constitutional rights, both by what Defendants include and what they exclude from their methods of execution by lethal injection. These execution methods will violate Plaintiffs' constitutional rights to be free from arbitrary, capricious, cruel, and unusually painful punishment, which rights are secured and guaranteed to them by the Eighth Amendment ofthe United States Constitution, as incorporated
22

by the Fourteenth Amendment of the United States Constitution to limit Defendants' powers while acting individually or under the color and authority of state law.
VII. Second Claim: Fourteenth Amendment Due Process Violation 55. Plaintiffs incorporate all preceding paragraphs as if fully rewritten herein. 56. Defendants have created, maintained and implemented lethal injection procedures, practices,
customs, and methods that they intend to use to execute Plaintiffs. Defendants' lethal injection methods manifest their deliberate indifference towards Plaintiffs' constitutional rights, both by what Defendants include and what they exclude from their methods of execution by lethal injection. These execution methods will violate Plaintiffs' constitutional rights to substantive and procedural due process as secured and guaranteed to them by the Fourteenth Amendment ofthe United States Constitution, which limits Defendants' powers while acting individually or under the color and authority of state law.
VIII. Prayer for Relief A. Plaintiffs request that this Court grant then injunctive relief by granting a preliminary and
permanent injunction barring Defendants from executing Plaintiffs in the manner by which Defendants currently intend to execute Plaintiffs, in order to prevent Defendants from violating Plaintiffs' federal constitutional rights under the Eighth and Fourteenth Amendments to the United States Constitution. B. Plaintiffs request that this Court grant them declaratory reliefby issuing an Order declaring that the Defendants' current means, methods, practices, procedures, and customs regarding execution by lethal injection violate the Eighth and Fourteenth Amendments to the United States Constitution.
23

C. Plaintiffs request that this Court grant them injunctive relief by granting a preliminary and permanent injunction barring Defendants from executing Plaintiffs unless Defendants first give Plaintiffs the right to choose to have one of their attorneys witness Plaintiffs' executions without forcing Plaintiffs to choose to have counsel witness at the cost of using one of the three witness slots allotted by ORC. § 2949.25(A)(5).
D. Plaintiffs request that this Court grant them reasonable attorney fees pursuant to 42 U.S.C. § 1988 and the laws ofthe United States.
E. Plaintiffs request that this Court grant such further relief as it deems just and proper. Respectfully submitted, DAVID BODIKER
~~
LINDA E. PRUCHA (0040689) Assistant Public Defender Office of the Ohio Public Defender 8 East Long Street, 11th Floor Columbus, Ohio 43215 Phone: (614) 466-5394 Facsimile: (614) 644-0708 COUNSEL FOR PLAINTIFFS
24

NOTICE OF INTENT TO REQUEST DEFENDANTS TO WAIVE SERVICE OF SUMMONS PURSUANT TO F. R. Civ. P. 4(d)(2)
Notice is hereby given that Plaintiffs, through counsel, intend to ask Defendants to waive service ofsurnmons pursuant to Federal Rule of Civil Procedure 4(d)(2). In addition, Plaintiffs, though counsel, will hand deliver a courtesy copy oftheir complaint and exhibits to the Office of the Ohio Attorney General, attention Senior Deputy Attorney General Timothy D. Prichard, Capital Crimes Section, 30 East Broad Street, 23rd Floor, Columbus, Ohio, on this 10th day of June, 2004.
25

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

ADREMY DENNIS, et al. Plaintiff,
v. BOB TAFT, et al.,
Defendants.

:

:

:

CASE NO. C2-04-532

:

:

:

JUDGE FROST

:

MAGISTRATE JUDGE ABEL

:

:

DEFENDANTS’ MOTION TO DISMISS

Now come Defendants Bob Taft, Governor of the State of Ohio; Reginald

Wilkinson, Director of the Ohio Department of Rehabilitation and Correction; and James

Haviland, Warden of Southern Ohio Correctional Facility (SOCF), by and through

counsel, and pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, move this

Court for dismissal. The basis for Defendants’ motion is fully set forth in the attached

memorandum of law.

Respectfully submitted,

JIM PETRO (0022096) Attorney General

S/ Kelley A. Sweeney MICHAEL COLLYER (0061719) MARIANNE PRESSMAN (0059512) KELLEY A. SWEENEY (0068857) Assistant Attorneys General Corrections Litigation Section 615 W. Superior Ave., 11th Floor Cleveland, Ohio 44113-1899 (216) 787-3030 (216) 787-3480 fax mcollyer@ag.state.oh.us mpressman@ag.state.oh.us ksweeney@ag.state.oh.us Counsel for Defendants

MEMORANDUM I. STATEMENT OF FACTS
Plaintiffs Adremy Dennis and Richard W. Cooey, II, are inmates of the State of Ohio, currently incarcerated at Mansfield Correctional Institution. Both Plaintiffs are housed on Death Row pursuant to their respective death sentences.
On June 18, 2004, Plaintiffs filed a Complaint pursuant to 42 U.S.C. § 1983, for injunctive and declaratory relief, attorneys’ fees and costs. Plaintiffs allege that, in the future, Defendants will violate their rights under the Eighth Amendment to the United States Constitution to be free from cruel and unusual punishment. Plaintiffs also allege future violations of their rights to substantive and procedural due process under the Fourteenth Amendment to the United States Constitution. (Complaint, p. 2, ¶ 1).
More specifically, according to Plaintiffs, Defendants’ lethal injection protocol includes an unreliable and short-acting anesthetic that will “leave Plaintiffs conscious but trapped in a paralyzed body wracked with the pain of suffocation and a heart attack.” (Complaint, p. 2, ¶ 3). Plaintiffs allege that the current method of lethal injection will cause Plaintiffs to be tortured to death. (Complaint, p. 2, ¶ 2-3). Plaintiffs also allege that the personnel attending to the executions are inadequately trained, and as such, Defendants’ execution methods violate Plaintiffs’ Constitutional rights. (Complaint, p. 15, ¶ 35-36). Additionally, Plaintiffs also complain that if they desire to have their respective attorneys view their executions, the attorneys must count as one of their three (3) witnesses permitted by O.R.C. §2949.25(A)(5). (Complaint, p. 18-19, ¶ 42-46).
Defendants herein move the Court for dismissal of the instant Complaint for failure to exhaust administrative remedies prior to filing suit.
2

II. LAW AND ARGUMENT

A. STANDARD OF REVIEW

A motion to dismiss for failure state a claim under Fed. R. Civ. P. 12(b)(6) tests

the sufficiency of the complaint. For purposes of the motion, the court must presume that

all factual allegations of the complaint are true and make all reasonable inferences in favor of the nonmoving party. Roth Steel Products v. Sharon Steel Co. (6th Cir. 1983),

705 F.2d 134, 155. In order for a court to dismiss a complaint for failure to state a claim

upon which relief can be granted, it must appear beyond doubt from the complaint that

the plaintiff can prove no set of facts entitling him to recovery. Conley v. Gibson (1957),

355 U.S. 41, 45-46.

B.

PLAINTIFFS FAILED TO EXHAUST THEIR ADMINISTRATIVE REMEDIES

PRIOR TO FILING THIS ACTION, AS REQUIRED BY THE PRISON

LITIGATION REFORM ACT.

The Prison Litigation Reform Act of 19951 (“PLRA”), applies to persons

incarcerated in prison who bring civil actions or appeals against a government entity or

employee. Certain requirements must be satisfied prior to and contemporaneously with

the filing of a lawsuit. Plaintiffs failed to comply with the PLRA prior to commencing

this suit which mandates dismissal of the Complaint.

Under 42 U.S.C. §1997e(a), a prisoner confined in any jail, prison or other

correctional facility may not bring an action challenging “prison conditions” under 42

U.S.C. § 1983 or any other federal law “until such administrative remedies as are available are exhausted.” White v. McGinnis (6th Cir. 1997), 131 F.3d 593, 595. To

define “prison conditions,” courts have utilized the definition of “a civil action with

1 Pub. L. No. 104-134, 110 Stat. 1321. 3

respect to prison conditions” set forth in 18 U.S.C. § 3626(g). This statute defines a conditions suit as (emphasis added):
Any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison… Plaintiffs’ Complaint concerning alleged cruel and unusual punishment qualifies as a “conditions” suit as Plaintiffs complain of the “effects of actions by government officials.” 18 U.S.C. § 3626(g). In Brown v. Toombs (6th Cir. 1998), 139 F.3d 1102, 1104, the court set forth what an inmate’s complaint must contain to satisfy the exhaustion requirement of § 1997e(a) and survive dismissal. Inmates who file lawsuits challenging the conditions of their confinement pursuant to 42 U.S.C. §1983 “must allege and show that they have exhausted all available state administrative remedies…a prisoner should attach to his §1983 complaint the administrative decision, if it is available, showing the administrative disposition of his complaint.” Brown v. Toombs, supra. Where the record fails to disclose that the inmate has complied with the exhaustion requirement, the case should be dismissed. Id. The administrative remedy is provided to Ohio prisoners in the extensive grievance procedure set forth in O.A.C. 5120-9-31. Any prisoner may use this system no matter what his or her security or disciplinary status is. O.A.C. 5120-9-31(B). The system provides for the prompt resolution of informal complaints and a more structured procedure for dealing with formal grievances. O.A.C. 5120-9-31(E) and (H). The procedure for dealing with formal grievances includes neutral, third-party investigation and set time schedules for evaluation of grievances. O.A.C. 5120-9-31(H). It also provides for input by the grieving prisoner into the scope and manner of that
4

investigation, O.A.C. 5120-9-31(H)(3), and provides a right of appeal to the Chief Inspector of the ODRC and protection against reprisals. O.A.C. 5120-9-31(H)(8), (L), (M), and (N).
Furthermore, O.A.C. 5120-9-31 includes provisions for the expedited determination of grievances involving danger to prison inmates’ personal well-being and requires that inmates be provided with written and verbal instructions on how to utilize the grievance process. O.A.C. 5120-9-31(E) and (G). The Ohio Supreme Court ruled that O.A.C. 5120-9-31 provides a sufficiently adequate remedy that must be exhausted before inmates seek to involve the judiciary in the day-to-day operations of Ohio’s prisons. State ex rel. Humphrey v. Jago, 74 Ohio St.3d 675, 676 (1996). That holding is consistent with the Sixth Circuit’s requirement that federal prisoners exhaust their administrative remedies before bringing their complaints about the conditions of their confinement to the courts. Davis v. Keohane, 835 F.2d 1147, 1148-1149 (6th Cir. 1987); Little v. Hopkins, 638 F.2d 953-954 (6th Cir. 1981).
Informal complaints must be sent to the department or supervisor most directly related to the matter at issue no later than fourteen calendar days after the date of the matter complained of. ODRC Policy 203-01 VI(D). Formal grievance forms must be filed no later than thirty calendar days after the date of the matter complained of. ODRC Policy 203-01 VI(D). Appeals to the Chief Inspector must be sent no later than twenty working days after the inmate’s receipt of the written Disposition of Grievance. O.A.C. 5120-9-31(H)(8).
As applied to the instant case, Plaintiffs have not exhausted their administrative remedies as to each claim they bring. Furthermore, Plaintiffs name multiple Defendants
5

in their Complaint. Plaintiffs are required to exhaust their administrative remedies as to the claim they bring against each Defendant they named. There are a number of Sixth Circuit cases that support this proposition.
Curry v. Scott, 249 F.3d 493 (6th Cir. 2001) requires that "a prisoner file a grievance against the person he ultimately seeks to sue," Id. at 505. Similarly, in Hartsfield v. Vidor, 199 F.3d 305 (6th Cir. 1999), the appellate court ruled that an inmate who named three officers in his grievance, and who could have but did not name two additional officers, did not exhausted his administrative remedies with respect to the two unnamed officers. Hartsfield, 199 F.3d at 308-09. He thus did not "administratively exhaust his . . . claim as to each defendant associated with the claim." Also see Burton v. Jones, 321 F.3d 569, 574 (6th Cir. 2003); Thomas v. Woolum, 337 F.3d 720 (6th Cir. 2003). Thus, Plaintiffs must exhaust their administrative remedies as to each Defendant-each person they intend to sue. Curry v. Scott, supra.
Plaintiffs did not fully comply with the grievance process by filing an informal complaint, formal grievance and appeal to the Chief Inspector on each claim that they bring against each Defendant that they name. ODRC Policy 203-01 VI(D); O.A.C. 51209-31. The PLRA, 42 U.S.C. §1997e(a), and White v. McGinnis, supra, mandate complete exhaustion as a precondition to bringing a suit on federal claims and require dismissal if exhaustion has not occurred before filing. Per Brown v. Toombs, supra, Plaintiffs must also show proof of exhaustion. They have not done so. Consequently, Plaintiffs’ Complaint should be dismissed.
6

CONCLUSION
Based on the foregoing, Defendants respectfully move this honorable Court for
dismissal of Plaintiffs’ Complaint and any other relief deemed necessary and just.
Respectfully submitted, JIM PETRO (0022096) Attorney General
S/ Kelley A. Sweeney MICHAEL COLLYER (0061719) MARIANNE PRESSMAN (0059512) KELLEY A. SWEENEY (0068857) Assistant Attorneys General Corrections Litigation Section 615 W. Superior Ave., 11th Floor Cleveland, Ohio 44113-1899 (216) 787-3030 (216) 787-3480 fax mcollyer@ag.state.oh.us mpressman@ag.state.oh.us ksweeney@ag.state.oh.us Counsel for Defendants
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of Defendants’
Motion to Dismiss was filed electronically this 5th day of August 2004. Notice of this
filing will be sent to all parties by operation of the Court’s electronic filing system.
Parties may access this filing through the Court’s system.
S/ Kelley A. Sweeney KELLEY A. SWEENEY Assistant Attorney General
7

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

ANDREMY DENNIS,

and

RICHARD COOEY, II,

Petitioners,

v. ROBERT TAFT, Governor,

Case No. C-2-04-532 JUDGE FROST Magistrate Judge Abel

REGINALD WILKINSON, Director,

and

JAMES HAVILAND, Warden,

Respondents.

OPINION AND ORDER

Petitioners, Andremy Dennis and Richard Cooey, have been sentenced to death by the

State of Ohio. Petitioner Dennis faces an execution date of October 13, 2004. This matter is

before the Court on petitioners' original complaint for injunctive relief, declaratory relief, and

reasonable attorneys fees pursuant to 42 U.S.C. §1983, (doc.no. 3), as well as petitioners' motion

for a preliminary injunction, (doc.no. 9).

In their complaint, petitioners seek preliminary and permanent injunctive relief barring

respondents from executing them in the manner by which respondents plan to execute them, as

well as a declaratory judgment that the current means by which respondents carry out executions

violate the Eighth and Fourteenth Amendments. Specifically, petitioners contend that

respondents intend to violate petitioners' constitutional rights because the current method of

execution used by respondents -- a lethal injection protocol that includes a short-acting anesthetic that will leave petitioners paralyzed but conscious during suffocation and death -- will cause petitioners to be tortured to death. Petitioners also raise challenges about alleged failures on the part of respondents to disclose sufficient details about the lethal injection protocol and certification of the equipment and chemicals to be used, and to ensure that properly trained medical personnel are on hand with appropriate cardiac monitoring equipment. Finally, petitioners also seek preliminary and permanent injunctive relief barring respondents from executing them unless respondents first give petitioners the right to choose to have one of their attorneys witness their executions without being forced to choose counsel at the cost of one of the three witnesses condemned inmates are permitted to choose under R.C. §2949.25(A)(5).
I. In In re Sapp, 118 F.3d 460 (6th Cir.), cert. denied, McQueen v. Sapp, 521 U.S. 1130 (1997), and cert. denied, McQueen v. Patton, 521 U.S. 1130 (1997), the Sixth Circuit held that a challenge to the method of execution brought as a civil rights claim under 42 U.S.C. §1983 was properly construed as a habeas corpus petition, and was therefore subject to the rules governing second or successive habeas corpus petitions. Citing Gomez v. District Court, 503 U.S. 653 (1992), the Sixth Circuit explained that petitioner could not circumvent the requirements for a successive petition by styling his challenge as a §1983 action. In re Sapp, 118 F.3d at 462-63. In In re Williams, 359 F.3d 811, 813 (6th Cir. 2004), the Sixth Circuit relied on In re Sapp in affirming the district court’s conclusion that a similar claim challenging Ohio’s lethal injection protocol set forth in a §1983 action was actually an unauthorized second or successive habeas corpus action. In so holding, the Sixth Circuit noted that Petitioner Williams had conceded that
2

his action was a second habeas corpus action. Id. at 812. Although the Sixth Circuit also took into consideration that the United States Supreme Court had granted certiorari in Nelson v. Campbell, 124 S.Ct. 835 (2003), to consider the question of whether a complaint brought under 42 U.S.C. §1983 by a death-sentenced state prisoner, who seeks to stay his execution in order to pursue a challenge to the procedures for carrying out his execution, is properly recharacterized as a habeas corpus petition under 28 U.S.C. §2254, the Sixth Circuit concluded, based on actions taken by the United States Supreme Court in other similar cases1 while Nelson was still pending, “that this Circuit is free to follow its prior precedent with regard to this question until the Supreme Court issues its decision in Nelson.” Williams, 359 F.3d at 813.
In Nelson v. Campbell, 124 S.Ct. 2117 (2004), decided on May 24, 2004, the Supreme Court noted that “We have not yet had occasion to consider whether civil rights suits seeking to enjoin the use of a particular method of execution – e.g., lethal injection or electrocution – fall within the core of federal habeas corpus or, rather, whether they are properly viewed as challenges to the conditions of a condemned inmate’s death sentence.” Nelson, 124 S.Ct. at t 2122. Nevertheless, the Supreme Court left open “the difficult question of how to categorize method-of-execution claims generally.” Id., at 2123. The Supreme Court later remarked that, “because we do not here resolve the question of how to treat method-of-execution claims generally, our holding is extremely limited.” Id. at 2125.

1

The Sixth Circuit cited Rowsey v. Beck, No. 04-6073 (4th Cir. Jan. 8, 2004), motion to vacate

granted, Beck v. Rowsey, — U.S. — , 124 S.Ct. 980, 157 L.Ed.2d 811 (2004)(Supreme Court vacated the stay

granted by the Fourth Circuit); Reid v.Johnson, No. 03-7916 (4th cir. Dec. 17, 2003), motion to vacate stay denied,

Johnson v. Reid, — U.S. — , 124 S.Ct. 980, 157 L.Ed.2d 810 (2003)(Supreme Court denied state’s motion to vacate

stay granted by the district court and affirmed by the Fourth Circuit); Zimmerman v. Johnson, — U.S. — , 124 S.Ct.

979, 157 L.Ed.2d 792 (2003)((Supreme Court denied stay in case where district court had dismissed claim

challenging execution protocol on procedural ground that §1983 was not appropriate vehicle for challenges to the

method of execution).

3

The Supreme Court found that Petitioner Nelson’s method-of-execution challenge, alleging that the use of a “cut-down” procedure to access his depleted veins would violate the Eighth Amendment, was properly raised in a §1983 action. Noting that respondents had conceded at oral argument that §1983 would be an appropriate vehicle for an inmate not facing a death sentence to challenge the “cut-down” procedure if used for purposes of medical treatment, the Supreme Court observed, “We see no reason on the face of the complaint to treat petitioner’s claim differently solely because he has been condemned to die.” Id.. The Supreme Court further clarified, with respect to respondents’ argument that petitioner’s challenge was a challenge to the fact of his execution for the reason that the cut-down was part of the execution procedure, that “Merely labeling something as part of an execution procedure is insufficient to insulate it from a §1983 attack.” Id. Specifically, the Supreme Court rejected respondents’ argument that a victory by petitioner would call into question the death sentence itself because as a legal matter, the cutdown procedure was not a statutorily mandated part of the lethal injection protocol, and as a factual matter, petitioner had not demonstrated an inability or indicated an unwillingness to accept alternatives for gaining access to his veins. Id. at 2123-24.
Petitioners question the validity of In re Sapp, and insist this action should be construed not as an unauthorized successive habeas corpus petition, but as a properly filed civil rights action pursuant to 42 U.S.C. §1983, on the basis of the United States Supreme Court’s recent decision of Nelson v. Campbell. Petitioners’ question is not easily dismissed. On the one hand, the Supreme Court declined to resolve the broad question of how to characterize method-of-execution claims generally, and characterized its holding as “extremely limited.” Nelson, 124 S.Ct. at 2125. On the other hand, under the language throughout Nelson, it is reasonable to construe the instant
4

challenge as indistinguishable from the challenge raised by Petitioner Nelson – namely, a challenge to only a particular aspect of Ohio’s lethal injection protocol, which aspect does not appear either to be mandated by statute or regulation or to be without alternatives, as opposed to a challenge to lethal injection generally or to the fact of the death sentence itself.
Were this Court to construe Nelson in the most conservative and limited light, this Court would be forced to conclude that petitioners' action, as one seeking to interfere with their sentences, must be construed as a habeas corpus petition pursuant to In re Sapp. So construed, the action would be an unauthorized second or successive habeas corpus petition over which this Court would have no jurisdiction, see 28 U.S.C. §2244(b)(3), and would have to be transferred to the Sixth Circuit pursuant to In re Sims, 111 F.3d 45, 47 (6th Cir. 1997)("when a second or successive petition for habeas corpus or §2255 motion is filed in the district court without §2244(b)(3) authorization from this Court, the district court shall transfer the document to this Court pursuant to 28 U.S.C. §1631."). This Court would be without jurisdiction to determine whether petitioners could satisfy the conditions set forth in 28 U.S.C. §2244(b)(2) for filing a second or successive petition. That determination would have to be made by the Sixth Circuit.
Under a more liberal interpretation of Nelson, it would be difficult for this Court to conclude that In re Sapp is still controlling or that petitioners’ instant action is anything but a properly filed civil rights action pursuant to 42 U.S.C. §1983. Four decisions issued after Nelson are instructive.
In Harris v. Johnson, 376 F.3d 414, (5th Cir 2004)(per curiam), the Fifth Circuit recently declined to determine whether the petitioner, whose method-of-execution claim was virtually indistinguishable from petitioners’ primary claim herein, had properly stated a claim under §1983,
5

“because even if he does, he is not entitled to the equitable relief [of a stay of execution] he seeks.” Id. at 417.
In Bryan v. Mullin, 100 Fed.Appx. 801, 2004 WL 1249856 (10th Cir. Jun. 8, 2004), the Tenth Circuit construed the petitioner’s §1983 action challenging his execution on the basis that he was incompetent as an unauthorized second or successive habeas corpus petition. Id. at 802, **1. That court concluded that Nelson was not applicable since the petitioner was challenging the fact of his execution – on the ground that he was incompetent – as opposed to a narrow method in which the execution was to be carried out. Id. at 803, **1. The Supreme Court denied certiorari on June 8, 2004 following the court of appeals’ decision denying a stay. Bryan v. Mullin, 124 S.Ct. 2834 (2004).
In Reid v. Johnson, 2004 WL 1730317 (4th Cir. Aug. 2, 2004), the Fourth Circuit recently concluded that under Nelson, petitioner’s method-of-execution claim, also virtually indistinguishable from petitioners’ primary claim herein, was properly raised in a §1983 action because the petitioner in Reid was not challenging lethal injection generally, but rather, was asserting only that the particular protocol that the state planned to use, which protocol was not required by statute and was not without alternatives, was constitutionally impermissible. Id. at *2. On August 11, 2004, the United States Supreme Court vacated the stay entered by the Fourth Circuit. Johnson v. Reid, — S.Ct. — , 2004 WL 1784349 (U.S. Aug. 11, 2004).
Finally, in Oken v. Sizer, 321 F.Supp.2d 658, 661-62 (D. Maryland 2004), the district court, faced with a method-of-execution claim challenging the recently-altered manner in which the IV protocol was to be administered, concluded that Nelson was dispositive and that the petitioner’s claim was properly brought in a §1983 action. Like the Supreme Court in Nelson, the
6

district court concluded that there was little difference between a challenge to the planned administration of the IV in a death setting and such a challenge in a non-death setting. Id. On June 16, 2004, the United States Supreme Court vacated the stay of execution that had been granted. Sizer v. Oken, 124 S.Ct. 2868 (2004).
Of the four decisions cited above, only one construed the §1983 action before it as an unauthorized second or successive habeas corpus petition, and that decision did so on the basis that the petitioner was challenging the fact of his execution on the ground of his alleged incompetency, as opposed to a particular aspect of the manner in which he was to be executed. See Bryan v. Mullin supra. After careful consideration, this Court concludes that the method-ofexecution claim raised by petitioners herein is properly before this Court in the instant §1983 action.
Like the petitioners’ challenges in Harris v. Johnson, Reid v. Johnson, and Oken v. Sizer, petitioners’ herein seek to challenge not lethal injection generally, nor the validity of their death sentences, but only particular aspects of the lethal injection protocol, which aspects do no appear to be required either by statute or by administrative regulation, but rather, are a matter of policy on the part of the Department of Rehabilitation and Correction. (Complaint, doc.no. 3, Exhibits 2A, B). Petitioners’ central complaint is that respondents’ protocol includes a paralyzing agent that will cast a chemical veil over the painful effects of death by suffocation and heart attack, and that there is a substantial risk that petitioners will experience those effects because of the use of an unreliable ultra short-acting anesthetic that can and will leave petitioners conscious but trapped in a paralyzed body. (Complaint, doc.no. 3, at ¶ 3; Exh. 3, at ¶¶ 8-11, 15-18). As noted above, petitioners also raise challenges about alleged failures on the part of respondents to disclose
7

sufficient details about the lethal injection protocol and certification of the equipment and chemicals to be used, and to ensure that properly trained medical personnel are on hand with appropriate cardiac monitoring equipment.
As evidence that petitioners challenge only particular aspects of the lethal injection protocol, as opposed to lethal injection in general, petitioners appear to acknowledge that there are alternatives to the aspects of the protocol they challenge – namely, a continuous administration of the short-acting barbiturate, as opposed to a single, two-gram dose; cessation of the use of pancuronium bromide to veil the involuntary reflexes associated with death by suffocation and heart attack; disclosure by respondents of more details about the lethal injection protocol and certification of the equipment and chemicals to be used; and assurance that properly trained medical personnel will be on hand with appropriate cardiac monitoring equipment – by which the execution could be carried out in a constitutional manner. (Complaint, doc.no. 3, at Exh. 3, at ¶¶ 17, 34). Petitioners expressly do not contend that respondents could never execute them. (Complaint, doc.no. 3, at ¶¶ 4, 48).
For all of these reasons, the Court is satisfied that the instant action was properly filed as a §1983 action, and should not be construed as a second or successive habeas corpus action. Regrettably, the inquiry does not end here.
II. The Supreme Court in Nelson noted 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, 124 S.Ct. At 212526 (citing Gomez v. United States Dist. Court for Northern Dist. Of Cal., 503 U.S. 653 (1992)(per curiam)). Petitioner Dennis, who faces an execution date of October 13, 2004, has filed a motion
8

for a preliminary injunction to stay his execution pending the adjudication of the merits of his §1983 challenge to respondents’ execution procedures. The following facts are relevant to Petitioner Dennis’s request.
Petitioner Dennis was convicted and sentenced to death in 1994. (Petitioner’s motion for preliminary injunction, doc.no. 9, at Exh. 7, “Motion to Set Execution Date”). Mr. Dennis unsuccessfully appealed this judgment through the state courts and, on June 30, 1998, filed a habeas corpus petition in the district court for the Northern District of Ohio. The district court denied Mr. Dennis’s petition on September 29, 1999, and the Sixth Circuit affirmed that decision on December 29, 2003. Mr. Dennis’s habeas corpus proceedings concluded on May 24, 2004, when the United States Supreme Court denied his request for certiorari. Dennis v. Mitchell, 124 S.Ct. 2400 (2004). On June 10, 2004, the Sixth Circuit issued its mandate and the state filed a motion requesting the Ohio Supreme Court to set an execution date. On that same day, Petitioners Dennis and Cooey filed this §1983 action. On August 13, 2004, the Ohio Supreme Court set Petitioner Dennis’s execution date for October 13, 2004, prompting Petitioner Dennis, on August 24, 2004, to file the instant motion for a preliminary injunction to stay his execution. (Motion for preliminary injunction, doc.no. 9, at 2).
In 1993, Ohio adopted lethal injection as a method of execution. In 2001, the Ohio legislature designated lethal injection as the sole method of execution. Based on exhibits attached to Petitioners’ complaint, the exact procedures, including procedures and details petitioners were unable to glean, that petitioners challenge herein were known to them at the very latest in May, 2002. Exhibit 1 to the complaint is a letter dated April 19, 2002 from Warden James Haviland purporting to enclose DRC Policy 001-09, “Executions,” and providing information regarding the
9

gurney/bed and restraints, the IV equipment, the generic names of the drugs, and information about the absence of any cardiac monitoring equipment other than a stethoscope. Exhibit 2A to the complaint is a letter dated May 30, 2002 from DRC staff counsel Vincent Lagana setting forth information that the DRC believed to fall outside the scope of a public records request; setting forth generally the execution team practice schedule and more specifically the execution day procedures; and setting forth the dosages of the drugs to be administered. Exhibit 2B to the complaint is a letter dated January 30, 2004 from Mr. Lagana setting forth information that was included in his letter of May 30, 2002 regarding the saline locks, tubing, and the administration and dosages of the drugs. Exhibit 3 is a photocopy of an undated December 2003 affidavit by Mark J.S. Heath, M.D., the board certified anesthesiologist upon whose observations petitioners based their complaint. In his affidavit, Dr. Heath averred that the materials he reviewed regarding the lethal injection protocol that petitioners challenge were the letter dated April 19, 2002 from warden James Haviland and the letter dated May 30, 2002 from DRC staff counsel Vincent Lagana. Although the exhibits establish that the information forming the basis of petitioners’ complaint was known to them at the very latest in May 2002, there is no reason to believe that this information was not available to them as early as 1994, when Petitioner Dennis was sentenced to death and one year after Ohio adopted lethal injection as a method of execution.
In support of his motion for a preliminary injunction to stay his execution, Petitioner Dennis cites Nelson v. Campbell, supra, 124 S.Ct. 2117 in arguing that he “filed his complaint as promptly as possible after the United States Supreme Court cleared the way for using 42 U.S.C. § 1983 to challenge a state’s execution methods without having the complaint treated as a successor habeas petition, and then dismissed for failing to satisfy the conditions for filing a successor
10

habeas petition under 28 U.S.C. §2244(b).” (Motion for preliminary injunction, doc.no. 9, at 2). Petitioner argues that he is entitled to the equitable relief he seeks, i.e., a stay of execution, because his claims are cognizable under 42 U.S.C. §1983 and because he satisfies the four-part test set forth in Vittitow v. City of Upper Arlington, 43 F.3d 1100, 1108-09 (6th Cir. 1995). Petitioner argues that (1) his claims are weighty and he has demonstrated a likelihood of succeeding on the merits; (2) he will be irreparably harmed absent the injunction; (3) respondents will not be substantially harmed by an injunction because they will be free to carry out his execution if they prevail on the merits or if they bring their execution methods into compliance with petitioner’s complaint; and (4) the public has an interest in punishments being meted out in a constitutional manner. (Motion for preliminary injunction, doc.no. 9, at 4-5). Petitioner insists that controlling case law, i.e., In re Sapp, supra, prevented him from filing this complaint sooner, and that he and Petitioner Cooey have made every effort expedite this complaint, only to be met with resistance from respondents. (Motion for preliminary injunction, doc.no. 9, at 6).
Respondents argue that Nelson v. Campbell does not open the door to injunctive relief because that holding was limited to its facts and because the United States Supreme Court continues to deny or vacate stays even for inmates with otherwise properly-filed §1983 actions. Respondents insist that Sixth Circuit precedent still dictates that injunctive relief is not warranted because, under In re Sapp, supra, petitioners’ claims cannot be viewed as cognizable, and because, under In re Williams and Roe, supra, petitioners’ claims are weak on the merits. Respondents further argue that Petitioner Dennis could have raised these challenges years ago, either in a §1983 action between 1994 and 1997, or in his 1998 habeas corpus action, after the Sixth Circuit set forth in In re Sapp in 1997 that such challenges should be raised in habeas
11

corpus. Finally, respondents argue that Petitioner Dennis’s request is overbroad, insofar as he
does not specify lethal injection procedures that would pass constitutional muster. As noted above, the Supreme Court in Nelson remarked, “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, supra, 124 S.Ct. at 2125-26. The Supreme Court pointed to its decision in Gomez v. United States Dist. Court for Northern Dist. Of Cal., supra, 503 U.S. 653, where it left open the question
of whether the inmate’s claim was cognizable under § 1983, but vacated the stay of execution
nonetheless because the inmate “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, 124 S.Ct. at 2126, discussing Gomez, supra, 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 the instant case, the Court is constrained, based on the facts before it and the language in Nelson, to deny Petitioner Dennis’s motion for a preliminary injunction. 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.
Petitioner Dennis was sentenced to death in 1994, one year after Ohio adopted lethal
12

injection as a method of execution. Petitioner could have challenged Ohio’s procedure at any time after being sentenced to death, arguably in a § 1983 action between 1994 and 1997 or in his habeas corpus petition in 1998, as respondents argue in their memorandum in opposition. Even assuming that information concerning Ohio’s lethal injection procedures was unavailable to petitioner prior to May, 2002 – an assumption that seems highly unlikely – when letters from warden James Haviland and staff counsel Vincent Lagana set forth in detail the procedures that Petitioner Dennis now seeks to challenge, the facts establish that Petitioner Dennis was aware at least as of May, 2002 of the facts underlying his complaint and yet, he failed to raise this challenge until June 10, 2004 – the date on which all of his other legal challenges came to an end and his execution seemed imminent.
To the extent petitioner argues that he was prevented from filing his complaint until the Nelson decision opened the door and that he filed his complaint as soon as possible after the Nelson decision was issued, his argument must fail. The Fifth Circuit considered and rejected similar arguments in Harris v. Johnson, supra, 376 F.3d 414. Specifically, the Fifth Circuit noted not only that the petitioner in Nelson, like Petitioner Dennis herein, appeared to have been foreclosed by Fifth Circuit precedent from presenting his method-of-execution claim in a §1983 action, but that “[s]o long as there remains the possibility of en banc consideration and Supreme Court review, circuit law does not completely foreclose all avenues of relief.” Harris, 376 F.3d at 419. The Court agrees with the Fifth Circuit’s reasoning, and finds it all the more persuasive when one considers the Sixth Circuit’s decision in In re Williams, supra, 359 F.3d 811. In that decision, the majority affirmed the district court’s decision construing the §1983 action as a successive habeas corpus action and transferring it to the Sixth Circuit for authorization, but did
13

so by the slimmest of margins – one judge filed a concurring opinion recommending that the alternatives recommended by petitioners’ experts simply be utilized and another judge filed a dissenting opinion – and with considerable debate among the judges about whether en banc review and a stay of execution should have been granted. Williams, 359 F.3d at 817-820.
Considering the four-part test set forth in Vittitow for whether a preliminary injunction is warranted, the Court can only conclude that Petitioner Dennis is not entitled to a preliminary injunction. Although the observations voiced by petitioners’ expert, Dr. Heath, in his affidavit give cause for concern, they are disputed virtually point-for-point by respondents’ experts in their affidavits. (Memorandum in Opposition, doc.no. 11, “Affidavit of Dr. Mark Dershwitz, M.D., PH.D”; “Affidavit of Dr. Carl Rosow, M.D., PH.D.”). Thus, it is somewhat difficult to say that Petitioner Dennis has demonstrated a likelihood of success on the merits. Although Petitioner Dennis will be irreparably harmed absent the injunction, the third and fourth parts of the Vittitow test fall in respondents’ favor for the reasons emphasized by the Supreme Court in Nelson. Petitioner reasons that respondents will not be substantially harmed by the issuance of the injunction because they will be able to execute him if they prevail on the merits or if they bring their procedures into compliance with his complaint. Petitioner further reasons that the public has an interest in punishments being meted out in a constitutional manner. Petitioner’s arguments ignore the admonition by the Supreme Court in Nelson that the State has a significant interest in enforcing its criminal judgments and that “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.
For the foregoing reasons, Petitioner Dennis’s motion for a preliminary injunction must be
14

DENIED on grounds that this claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay. See Nelson v. Campbell, 124 S.Ct. at 2126.
IT IS SO ORDERED. /s/ Gregory L. Frost
GREGORY L. FROST United States District Judge
15

 
 No. 04-4149
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

f I LED
SEP 30 2004

ADREMY DENNIS,

)

Plaintiff - Appellant

)

v.

)

- - - - - -ROBERT TAFT, et aI.,

)

Defendants - Appellees

)

JONARD GREEN, Clerk
/'V', f~ A-
~-
\

Before: SUHRHEINRICH, SILER, and DAUGHTREY, Circuit Judges
This matter comes before the court upon the motion of the appellant to dismiss the appeal as moot pursuant to Rule 42(b), Fed.R.App.P. The appellant filed a petition asking the court to grant initial hearing of the appeal en bane, which petition was circulated to the active judges of the court'. No judge having asked for a poll on the petition, the matter is thereby referred to this panel.
Upon consideration of the motion to dismiss, which the court finds well taken, it is i~R~9~:!J,~P that the appeal be, and it hereby is, DISMISSED.
ENTERED BY ORDER OF THE COURT
leonard~een, Clerk
*Hon. Deborah L. Cook has recused in the matter.

 
 479 F.3d 412 (2007)
Richard Wade COOEY, II, Plaintiff-Appellee, v.
Ted STRICKLAND, Governor; Terry J. Collins, Director; E.C. Voorhies, Warden, Defendants-Appellants.
No. 05-4057.
United States Court of Appeals, Sixth Circuit.
Argued: December 7, 2006. Decided and Filed: March 2, 2007.
413 *413 ARGUED: Michael L. Collyer, Office of the Attorney General, Cleveland, Ohio, for Appellants. Gregory W. Meyers, Public Defender's Office, Columbus, Ohio, for Appellee. ON BRIEF: Michael L. Collyer, Kelley A. Sweeney, Office of the Attorney General, Cleveland, Ohio, for Appellants. Gregory W. Meyers, Kelly L. Culshaw, Kimberly S. Rigby, Public Defender's Office, Columbus, Ohio, for Appellee.
Before: SUHRHEINRICH, SILER, and GILMAN, Circuit Judges.
SUHRHEINRICH, J., delivered the opinion of the court, in which SILER, J., joined.
GILMAN, J. (pp. 424-31), delivered a separate dissenting opinion.
OPINION
SUHRHEINRICH, Circuit Judge.
Richard Cooey, an Ohio inmate under sentence of death, filed this action against Ted Strickland, Governor, Terry J. Collins, Director, and E.C. Voorhies, Warden (collectively "Defendants" or "State") pursuant to 42 U.S.C. § 1983, challenging the constitutionality of Ohio's lethal injection protocol. The issues before us in this interlocutory appeal are (1) whether a death row inmate's claim against lethal injection itself as 0907 opposed to a precursor procedure is 0907 properly considered to be a habeas action or one brought pursuant to 42 U.S.C. § 1983, (2) whether a death row inmate's § 1983 method-of-execution challenge accrues, for statute of limitations purposes, 414 when execution is imminent or *414 at some earlier stage in state and federal proceedings, and (3) whether res judicata is a bar to a death row inmate's claim concerning the means and methods of execution when similar issues were raised, or the specific claim could have been raised, in a previous habeas action.
I. Background
In 1986, an Ohio three-judge panel convicted Cooey of two counts of aggravated murder, and the panel sentenced him to death. The Ohio Supreme Court affirmed Cooey's convictions and sentence on direct appeal. See State v. Cooey, 46 Ohio St.3d 20, 544 N.E.2d 895 (1989), and the United States Supreme Court denied certiorari on April 1, 1991, see Cooey v. Ohio, 499 U.S. 954, 111 S.Ct. 1431, 113 L.Ed.2d 482 (1991). Cooey unsuccessfully sought post-conviction relief pursuant to Ohio Rev. Code Ann. § 2953.21. See State v. Cooey, 1994 WL 201009 (Ohio Ct.App. May 25, 1994). The Ohio Supreme Court declined jurisdiction over his further appeal from this decision. Cooey subsequently sought to reopen his direct appeal on the basis of ineffective assistance of appellate counsel. The Ohio Court of Appeals denied his request to reopen on the basis of procedural default because Cooey had not established good cause for not filing his application to reopen within ninety days of the July 1, 1993, effective date of Ohio App. R. 26(B). The Ohio Supreme Court affirmed. See State v. Cooey, 73 Ohio St.3d 411, 653 N.E.2d 252 (1995).

In October 1996, Cooey filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. The district court denied the petition on September 4, 1997. See Cooey v. Anderson, 988 F.Supp. 1066 (N.D.Ohio 1997). This Court granted a certificate of appealability as to two issues and denied relief as to both. See Cooey v. Coyle, 289 F.3d 882 (6th Cir.2002). The United States Supreme Court denied certiorari on March 31, 2003. Ohio originally set Cooey's execution date for July 24, 2003.
On July 21, 2003, Cooey filed a motion for relief from judgment pursuant to Fed. R.Civ.P. 60(b) and a motion for stay of execution. On July 23, 2003, the district court granted Cooey's motion for a stay of execution and deferred ruling on the Rule 60(b) motion. Both the Sixth Circuit and the Supreme Court denied the Warden's motions to vacate the stay of execution. The district court ultimately denied the Rule 60(b) motion, and this Court denied Cooey's application for a certificate of appealability from the denial of his Rule 60(b) motion and his motion for leave to file a second or successive habeas petition.
On June 10, 2004, Cooey and another inmate, Adremy Dennis, filed a complaint alleging that the lethal injection protocol constitutes cruel and unusual punishment in violation of the Eighth Amendment. Ohio utilizes three drugs in performing lethal injection: sodium thiopental, pancurionium bromide, and potassium chloride. The sodium thiopental is designed to anesthetize the prisoner and render him unconscious. Next, the pancuronium bromide paralyzes all of the prisoner's voluntary muscles but does not affect his sensation, consciousness, or ability to feel pain. Finally, the potassium chloride induces cardiac arrest. Dennis and Cooey asserted that if the sodium thiopental is not administered properly and in sufficient dosage, the prisoner could experience intense pain after being injected with the potassium chloride, but would be unable to convey the sensation due to the paralyzing agent in pancuronium bromide. They also maintained that to subject the prisoner to such excruciating pain while 415 he is still conscious would amount to cruel and unusual punishment. They also alleged that the personnel *415 attending to the executions are inadequately trained and, as such, Defendants' execution methods would violate a prisoner's constitutional rights.
The district court dismissed the complaint because Cooey failed to exhaust his administrative remedies. After exhausting them, Cooey re-filed his complaint on December 8, 2004.[1] On January 4, 2005, Defendants moved to dismiss the complaint based on the statute of limitations and res judicata, in addition to arguing that Cooey's complaint should be construed as a successive habeas petition. On March 28, 2005, the district court denied the defendants' motion but granted them permission to pursue this interlocutory appeal. On March 30, 2005, Defendants asked the district court to certify for immediate appeal the three arguments made in their motion to dismiss. On April 13, 2005, the district court granted the motion, in part, as to the issue of whether Cooey's claims are barred by the statute of limitations. Defendants then sought permission to appeal the three issues pursuant to 28 U.S.C. § 1292(b). This Court granted the request as to all three issues.
We later granted a stay pending the Supreme Court's decision in Hill v. McDonough, ___ U.S. ____, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006), which was decided on June 12, 2006. After that decision, the parties filed supplemental briefs addressing its impact on this case. The parties also submitted second supplemental briefs discussing the impact of recent changes in Ohio's lethal injection protocol on the issues pending before this Court. The matter was argued before this Court on December 7, 2006.
II. Analysis
This Court reviews de novo the district court's grant or denial of a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir.2005), cert. denied, ___ U.S. ____, 126 S.Ct. 1911, 164 L.Ed.2d 663 (2006). In this analysis, we must construe the complaint in the light most favorable to the plaintiff, accept all of his factual allegations, and determine whether he undoubtedly can prove no set of facts in support of his claims that would entitle him to relief. Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir.1995).

A. § 1983 vs. § 2254
Cooey sought relief pursuant to 42 U.S.C. § 1983, alleging that the proposed lethal injection protocol would constitute cruel and unusual punishment in violation of the Eighth Amendment. In their motion to dismiss, Defendants argued that Cooey's claim should have been presented in a petition for a writ of habeas corpus under 28 U.S.C. § 2254, rather than as a § 1983 claim. In Hill, the Supreme Court addressed this same issue and concluded that a death penalty plaintiff could raise his challenge in a § 1983 action. Relying on its earlier decision in Nelson v. Campbell, 541 U.S. 637, 645-47, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004), the Court concluded that the plaintiff's action was properly brought under § 1983 because it did not present a general challenge to his execution by lethal injection, but rather limited the challenge to the specific protocol currently used by the defendants. Hill, 126 S.Ct. at 2101-02. In their supplemental brief, Defendants acknowledge that Hill defeats their argument.
416 *416 B. Timeliness
Defendants also argue that Cooey's § 1983 action is barred by the statute of limitations. The Supreme Court has held that § 1983 claims are best characterized as tort actions for the recovery of damages for personal injury and that federal courts must borrow the statute of limitations governing personal injury actions from the state where the § 1983 action was brought. Wilson v. Garcia, 471 U.S. 261, 275-76, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). If a state has more than one statute of limitations for personal injuries, the state's residual or general statute of limitations governing personal injury actions is applied to all § 1983 actions brought in that state. Owens v. Okure, 488 U.S. 235, 249-50, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989). This Court has held that a two-year statute of limitations applies to § 1983 claims in Ohio. Banks v. City of Whitehall, 344 F.3d 550, 553 (6th Cir.2003) (citing Browning v. Pendleton, 869 F.2d 989 (6th Cir.1989) (en banc)).
On the other hand, as the Supreme Court recently made clear, federal law determines when the statute of limitations for a civil rights action begins to run. Wallace v. Kato, No. 05-1240, ___ U.S. ___, ___, 127 S.Ct. 1091, ___ L.Ed.2d ___, 2007 WL 517122, at *3 (Feb. 21, 2007). "Under those principles, it is `the standard rule that [accrual occurs] when the plaintiff has complete and present cause of action.'" Wallace, ___ U.S. at ___, 127 S.Ct. 1091, 2007 WL 517122, at *3 (quoting Bay Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal, 522 U.S. 192, 201, 118 S.Ct. 542, 139 L.Ed.2d 553 (1997)). This occurs "when `the plaintiff can file suit and obtain relief.'" Id. (quoting Bay Area Laundry, 522 U.S. at 201, 118 S.Ct. 542).
This Court has previously stated that "[u]nder federal law, as developed in this Circuit, the statute of limitations period begins to run when the plaintiff knows or has reason to know that the act providing the basis of his or her injury has occurred." (6th Cir.2001); Collyer v. Darling, 98 F.3d 211, 220 (6th Cir.1996); Ruff v. Runyon, 258 F.3d 498, 500-01 (6th Cir. 2001) (same); Sevier v. Turner, 742 F.2d 262, 273 (6th Cir.1984). Stated differently, "[i]n determining when the cause of action accrues in § 1983 cases, we look to the event that should have alerted the typical lay person to protect his or her rights." Trzebuckowski v. City of Cleveland, 319 F.3d 853, 856 (6th Cir.2003). We must therefore look at when the harm in question occurred, guided by the principle that "[a] plaintiff has reason to know of his injury when he should have discovered it through the exercise of reasonable diligence." Sevier, 742 F.2d at 273.
Defendants have the burden of demonstrating that the statutory period had run before Cooey filed his action. Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir.2002). We review de novo the district court's conclusion that Cooey's complaint was filed within the applicable statutory period. Kelly v. Burks, 415 F.3d 558, 560 (6th Cir.2005).
Cooey was sentenced to death in 1986. His conviction and sentence were affirmed by the Ohio Supreme Court on direct appeal in 1989, and the United States Supreme Court affirmed in 1991. Lethal injection became 417 available as a means of execution in Ohio in 1993. In 2001, it became Ohio's sole method of execution.[2]*417 This Court denied federal habeas relief in 2002, and the United States Supreme Court denied certiorari on March 31, 2003. Cooey's execution date was set for July 24, 2003.

The record also reflects that, at least as early as April 2002, information about the protocol was available upon request. Attached to Cooey's complaint is a letter dated April 19, 2002, from Warden Haviland disclosing the chemical mixture and equipment to be used.[3]See also Deborah W. Denno, When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal Injection and What it Says About Us, 63 Ohio St. L.J. 63, 146 (2002) (explaining that as of 2001, Ohio had a vague written policy, but that more specific information was available upon request); Mary Beth Lane, "How State Plans to Kill Berry; Execution to Take About Six Minutes" Cleveland Plain Dealer (February 17, 1999) (describing the three drugs in the lethal injection protocol, which a nine-page DRC policy and state officials explained). A follow-up letter from staff counsel for the Ohio Department of Rehabilitation and Correction dated May 30, 2002, further describes the procedures used by prison personnel in performing lethal injection and the quantities used under this formulation.[4]
The district court concluded that Cooey's claim accrued when his execution became imminent and he knew or had reason to know of the facts that gave rise to his specific method-of-execution challenge. In defining when an execution becomes imminent, the district court stated that it was "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 418 relief." This occurs "when the United States Supreme Court *418 denies certiorari in the plaintiff's habeas corpus proceeding or otherwise issues a decision foreclosing federal habeas corpus relief." In determining when a plaintiff knows or has reason to know the facts giving rise to his specific method-of-execution claim, the district court stated that because Ohio's protocol is a creation of the Ohio Department of Rehabilitation and Correction, and therefore subject to change until the time of execution,
requiring a death-sentenced plaintiff to file his method-of-execution challenge any sooner . . . [would be] wasteful and possibly absurd, given the possibility that, prior to his execution becoming imminent, a plaintiff could see his conviction or death sentence reversed, or the alteration of the precise execution protocol that plaintiff might seek to challenge as unconstitutional.
Applying this test to Cooey, the district court concluded that "Cooey knew or had reason to know of the facts giving rise to the specific allegations he has presented in the instant complaint in May 2002" when he received information about the protocol, and that his execution became imminent when the United States Supreme Court denied certiorari as to his habeas corpus proceedings on March 31, 2003; "[thus, Cooey] had two years from that date to file his method-of-execution claim." Because Cooey filed the instant action on December 8, 2004, three months before the expiration of the statute of limitations, the district court deemed his cause of action was timely.
The district court also commented that, as the protocol was not established by statute or administrative rule, it was subject to change at any time before the execution. Because Defendants could change the protocol up to the time of an inmate's execution, the district court believed that it would be premature to challenge the protocol until the execution was imminent.
On appeal, Defendants argue that the statute of limitations began to run in 1993, when lethal injection became available as a means of execution in Ohio, or alternatively in 2001, when lethal injection became Ohio's sole method of execution. Defendants assert that it is the issuance of a government order, in this case the protocol, rather than the carrying out of that order, which starts the clock. Cooey urges us to affirm the district court's conclusion that his claim accrued on March 31, 2003, when the United States Supreme Court denied certiorari as to Cooey's first habeas petition and after his execution date was set.
Setting an accrual date at the point when the actual harm is inflicted, i.e., at the point of execution, is problematic in this context because the death-sentenced inmate's claim would not accrue until he was executed, at which time it would also be simultaneously moot. In any event, both Nelson and Hill establish inferentially that § 1983 method-of-execution challenges may be brought before the execution is carried out. Neither case, however, addressed the appropriate accrual date. Thus, the relevant "event that should have alerted a lay person to protect his rights" must be redefined here.
If the point of infliction is not a viable option, the most logical choice of a triggering event is the point when the death penalty is ordered, upon judgment of conviction and sentence. At least one Court has set the accrual date

at the conclusion of direct review by the state. See Neville v. Johnson, 440 F.3d 221, 222 (5th Cir. 2006) (per curiam) (holding, in reliance on a concession by the state, that a challenge to a method of execution may be filed 419 any time after the plaintiff's conviction has become *419 final on direct review).[5] This is also an attractive choice because it marks the point at which the state has rendered its criminal judgment final and, absent collateral civil proceedings, the point at which the state sets the execution date. Furthermore, the death-sentenced inmate can file suit and obtain relief.

The district court's conclusion that the accrual date occurs when execution is imminent and all state and federal remedies have been exhausted is problematic for several reasons. First, it subverts the purpose of statutes of limitations, which are designed to "promote judicial economy and protect defendants' rights." John Hancock Fin. Servs., Inc. v. Old Kent Bank, 346 F.3d 727, 734 (6th Cir.2003) (and also noting that the discovery rule "has been applied to prevent unjust results when a plaintiff would otherwise be denied a reasonable opportunity to bring suit due to the latent nature of the injury or the inability to discover the causal connection between the injury and the defendant's action" (internal quotation marks omitted)). As the Supreme Court noted in Wallace:

"Under the traditional rule of accrual . . . the tort cause of action accrues, and the statute of limitations commences to run, when the wrongful act or omission results in damages. The cause of action accrues even though the full extent of the injury is not then known or predictable." 1 C. Corman, Limitation of Actions § 7.4.1, pp. 526-527 (1991) (footnotes omitted); see also 54 C.J.S., Limitations of Actions § 112, p. 150 (2005). Were it otherwise, the statute would begin to run only after a plaintiff became satisfied that he had been harmed enough, placing the supposed statute of repose in the sole hands of the party seeking relief.

Wallace, ___ U.S. at ____, 127 S.Ct. 1091, 2007 WL 517122, at *4.

More fundamentally, setting an accrual date at the point of imminency plus exhaustion of federal collateral remedies adds a significant period of delay to a state's ability to exercise its sovereign power and to finalize its judgments, which disrupts the vital yet delicate balance between state and federal relations. "Our federal system recognizes the independent power of a State to articulate societal norms through criminal law; but the power of a State to pass laws means little if the State cannot enforce them." McCleskey v. Zant, 499 U.S. 467, 492, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). Furthermore, "a State retains a significant interest in meting out a sentence of death in a timely fashion." Nelson, 541 U.S. at 644, 124 S.Ct. 2117.

Of course, "[f]ederal habeas review of state convictions frustrates both the States' sovereign power to punish offenders and their good faith-attempts to honor constitutional rights." Calderon v. Thompson, 523 U.S. 538, 555-56, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998) (internal quotation marks omitted). For this reason, federal habeas review of state court judgments is limited. As the Supreme Court observed in Calderon:

420

*420 In light of "the profound societal costs that attend the exercise of habeas jurisdiction," Smith

v. Murray, 477 U.S. 527, 539, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986), we have found it necessary

to impose significant limits on the discretion of federal courts to grant habeas relief. See, e.g.,

McCleskey v. Zant, 499 U.S. 467, 487, 111 S.Ct. 1454, 113 L.Ed.2d 517 . . . (1991) (limiting "a

district court's discretion to entertain abusive petitions"); Wainwright v. Sykes, 433 U.S. 72, 90-91,

97 S.Ct. 2497, 53 L.Ed.2d 594 . . . (1977) (limiting courts' discretion to entertain procedurally

defaulted claims); Teague v. Lane, 489 U.S. 288, . . . 308-10, 109 S.Ct. 1060, 103 L.Ed.2d 334

(1989) (plurality opinion of O'CONNOR, J.) (limiting courts' discretion to give retroactive

application to "new rules" in habeas cases); Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113

S.Ct. 1710, 123 L.Ed.2d 353 . . . (1993) (limiting courts' discretion to grant habeas relief on the

basis of "trial error").

Id. at 554-55, 118 S.Ct. 1489. The Court added that "[t]hese limits reflect our enduring respect for "the State's interest" in the finality of convictions that have survived direct review within the state court system." Id. at 555, 118 S.Ct. 1489 (citation omitted).

The Antiterrrorism and Effective Death Penalty Act of 1996 reflects Congress's desire to restore and maintain the proper balance between state criminal adjudications and federal collateral proceedings. See generally Rhines v.

Weber, 544 U.S. 269, 274, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005) (stating that "[t]he enactment of AEDPA in 1996 dramatically altered the landscape for federal habeas corpus petitions").
There is no doubt Congress intended AEDPA [the Antiterrorism and Effective Death Penalty Act of 1996] to advance [the] doctrines [of comity, finality, and federalism]. Federal habeas corpus principles must inform and shape the historic and still vital relation of mutual respect and common purpose existing between the States and the federal courts. In keeping this delicate balance we have been careful to limit the scope of federal intrusion into state criminal adjudications and to safeguard the States' interest in the integrity of their criminal and collateral proceedings.
Williams v. Taylor, 529 U.S. 420, 436, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000); see also Woodford v. Garceau, 538 U.S. 202, 206, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003) ("Congress enacted AEDPA to reduce delays in the execution of state and federal criminal sentences, particularly in capital cases, . . . and to further the principles of comity, finality, and federalism." (internal quotes omitted)); Williams v. Taylor, 529 U.S. 362, 386, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (Stevens, J.,) (stating that "Congress wished to curb delays, to prevent `retrials' on federal habeas, and to give effect to state convictions to the extent possible under law"); see also id. at 404, 120 S.Ct. 1495 (majority opinion). In addition to revising the standards for evaluating the merits of a habeas application, see 28 U.S.C. § 2254(d) (1996) (providing that a writ of habeas corpus shall not be granted to a state prisoner unless the state court proceedings "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law," or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings"), the AEDPA created a one-year statute of limitations for filing a federal habeas petition, running from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such 421 review." *421 28 U.S.C. § 2244(d)(1)(A) (1996). See generally Day v. McDonough, 547 U.S.198, ___ n. 1, 126 S.Ct. 1675, 1680 n. 1, 164 L.Ed.2d 376 (2006) (noting that "[u]ntil AEDPA took effect in 1996, no statute of limitations applied to habeas petitions"). The one-year limitation period "quite plainly serves the well-recognized interest in the finality of state court judgments . . . [and] reduces the potential for delay on the road to finality by restricting the time that a prospective federal habeas petitioner has in which to seek federal habeas review." Duncan v. Walker, 533 U.S. 167, 179, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (internal citation omitted); see also Acosta v. Artuz, 221 F.3d 117, 123 (2d Cir.2000) ("The AEDPA statute of limitation promotes judicial efficiency and conservation of judicial resources, safeguards the accuracy of state court judgments by requiring resolution of constitutional questions while the record is fresh, and lends finality to state court judgments within a reasonable time.") (quoted with approval in Day v. McDonough)).
The concerns articulated by the Supreme Court both pre- and post-AEDPA, and by Congress in the AEDPA itself, apply with equal force in this case, which "fall[s] at the margins of habeas." Nelson, 541 U.S. at 646, 124 S.Ct. 2117 (noting that the method-of-injection challenges "fall at the margins of habeas"). Indeed, the Court's recent decisions in Hill and Nelson reflect this core concern that federal habeas should not displace a state's authority to execute its judgments. In Nelson, the Supreme Court stated that "method-of-execution" challenges should be "brought at such a time as to allow consideration of the merits, without requiring the entry of a stay." 541 U.S. at 650, 124 S.Ct. 2117; see also Gomez v. U.S. Dist. Court, 503 U.S. 653, 654, 112 S.Ct. 1652, 118 L.Ed.2d 293 (1992) (criticizing inmate for filing "method-of-execution" challenge pursuant to 42 U.S.C. § 1983 more than a decade after the completion of his direct appeal, and shortly before his execution); White v. Johnson, 429 F.3d 572, 574 (5th Cir.2005) (per curiam) (rejecting an inmate's § 1983 "method-of-execution" challenge where the inmate had "been on death row for more than six years"). Most recently, in Hill, the Supreme Court emphasized that filing a § 1983 action challenging the constitutionality of certain aspects of a state's execution does not "entitle the complainant to an order staying [his] execution as a matter of course." Hill, 126 S.Ct. at 2104. The Court added that "[b]oth the State and the victims of [the] crime have an important interest in the timely enforcement of [the] sentence." Id. Thus, an inmate intending to assert such a challenge generally must file his suit in sufficient time to "allow consideration of the merits, without requiring entry of a stay" of execution. Id. (quoting Nelson, 541 U.S. at 650, 124 S.Ct. 2117). The Nelson Court also stated "flat out" that "[t]he federal courts can and should protect States from dilatory or speculative suits." Rutherford v. McDonough, 466 F.3d 970, 974 (11th Cir.2006) (quoting Hill, 126 S.Ct. at 2104). This Court adheres to these principles. See, e.g., Hicks v. Taft, 431 F.3d 916 (6th Cir.2005) (pre-Hill, cited with approval in Hill; ruling that a last-minute petition by a death row inmate, filed six days before his scheduled execution, was not entitled to a stay of execution even though the

district court had allowed him to intervene if a fellow inmate's § 1983 challenge to Ohio's lethal injection protocol); Alley v. Little, 186 Fed.Appx. 604, (6th Cir.), reh'g en banc denied, 452 F.3d 621 (6th Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 2975, 165 L.Ed.2d 982 (2006).
422 Thus, since the "date" the lethal injection protocol is imposed is infeasible, *422 it stands to reason that the next most appropriate accrual date should mirror that found in the AEDPA: upon conclusion of direct review in the state court or the expiration of time for seeking such review. See 28 U.S.C. § 2244(d)(1)(A) (1996).[6] All of the same concerns articulated by the Supreme Court and as reflected in the AEDPA are relevant here. Like federal habeas actions, a § 1983 method-of-execution challenge "implicates values beyond the concerns of the parties." See Acosta, 221 F.3d at 123 (and noting that the AEDPA statute of limitation was Congress' primary vehicle for streamlining the habeas review process and lending finality to state convictions).
Thus, under this standard, Cooey's claim would have accrued in 1991, after the United States Supreme Court denied direct review. However, Ohio did not adopt lethal injection until 1993, or make it the exclusive method of execution until 2001, so the accrual date must be adjusted because Cooey obviously could not have discovered the "injury" until one of those two dates. We need not pinpoint the accrual date in this case, however, because even under the later date, 2001, Cooey's claim exceeds the two-year statute of limitations deadline because his claim was not filed until December 8, 2004.
Cooey asserts, and the district court found, that Cooey did not have actual knowledge of Ohio's protocol until May 2002 when he received responses to his inquiries from the Warden. Actual knowledge, however, is not the appropriate measure; the test is whether he knew or should have known based upon reasonable inquiry, and could have filed suit and obtained relief. Cooey should have known of his cause of action in 2001 after amendments to the law required that he be executed by lethal injection, and the information was publicly available upon request. Yet, even if we accepted (and we would not) May 2002, the date when he received the Warden's response, Cooey's complaint is still untimely.
Cooey also argues that the statute of limitations did not begin to run until the Nelson decision made a § 1983 action a possible remedy for Cooey. Prior to that 2004 decision, this Court precluded a death row inmate from filing a § 1983 action challenging his method of execution. See In re Sapp, 118 F.3d 460, 464 (6th Cir. 1997); In re Williams, 359 F.3d 811 (6th Cir.2004). Indeed, in Williams, the plaintiff attempted to bring a § 1983 action raising the same argument now presented by Cooey, and this Court concluded that the claim must be raised in a § 2254 habeas action. Nonetheless, "the plaintiff in Nelson was similarly barred by circuit precedent at the time he filed his suit. So long as there remains the possibility of en banc reconsideration and Supreme Court review, circuit law does not completely foreclose all avenues for relief." Harris v. Johnson, 376 F.3d 414, 418-19 (5th Cir. 2004). This Circuit's precedent did not prevent Lewis Williams and John Roe from filing their lethal injection § 1983 actions. See In re Williams, 359 F.3d 811 (6th Cir.2004).[7]
423 *423 Lastly, Cooey argues, and the district court found, that the fluid nature of Ohio's execution protocol requires imminency of execution to be a key factor in the accrual calculus, citing Stewart v. Martinez-Villareal, 523 U.S. 637, 644-45, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998). We recently rejected a similar argument in Alley. In Alley, a Tennessee inmate also argued that his § 1983 claim challenging Tennessee's lethal injection protocol was not ripe until an execution date was imminent. In rejecting this argument we stated:
Alley's brief cites Stewart v. Martinez-Villareal, 523 U.S. 637, 118 S.Ct. 1618, 140 L.Ed.2d 849 . . . (1998) as prohibiting courts from considering challenges such as the one in our case before a petitioner's execution reaches imminence. We reject this reading of this precedent. In that case, unlike in ours, the defendant's claim under Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 . . . (1986), had originally been dismissed without prejudice. The Supreme Court's ruling merely allowed the claim to proceed in a habeas petition at a later date. The Court noted that the lower courts had specifically left open the possibility that the defendant's Ford claim could proceed in a future filing. Id. at 640, 118 S.Ct. 1618. . . . No such procedural history informs the posture of the § 1983 claim in our case. Moreover, we note that claims involving mental competency are inherently different from the § 1983 petition before us in at least one respect:

mental competency is subject to variance over time. It is indeed possible that last-minute firstinstance Ford petitions could be justified by a change in a defendant's mental health.
Id. at 607.
In contrast, while the lethal injection protocol in this case is subject to change, there was no evidence, until recently, that the protocol had ever been changed. And, furthermore, the recent changes do not relate to Cooey's core complaints.
During the pendency of this appeal, indeed while the matter was stayed, Cooey moved to expand supplemental briefing or to remand to the district court to further address Ohio's recent changes in its execution protocol, which he claimed is consistent with his claim that the malleable nature of Ohio's lethal injection protocol means that a § 1983 action cannot be imminent until close to the date of execution. In support, Cooey attached a memo written by Ohio Department of Rehabilitation and Correction Director Terry Collins, dated June 27, 2006. In that memo Collins adopted five "recommendations and process changes" regarding Ohio's execution protocol.
Ohio's recent amendments to its lethal injection protocol resulted from difficulties encountered during the execution of Joseph Clark on May 2, 2006. When preparing Clark for execution, prison officials could find only one accessible vein in Clark's arms to establish a heparin lock, through which the lethal drugs are administered. (Two locks usually are inserted.) However, once the execution began and the drugs were being administered, this 424 vein collapsed, and Clark repeatedly advised *424 officials that the process was not working. Officials stopped the lethal injection procedure, and after a significant period of time, were able to establish a new intravenous site. The process then was restarted, and Clark was executed.
To avoid similar difficulties in future executions, Ohio made several changes to its lethal injection protocol. First, officials removed time deadlines that previously dictated executions begin by a certain hour, and be completed within a narrow time frame. Second, prisoners are given more in-depth medical examinations prior to execution. Third, correctional personnel will make every effort to obtain two sites for heparin locks before proceeding to the execution chamber. Fourth, personnel will no longer use "high pressure" saline injections to check the viability of the intravenous lines. Instead, a "low pressure" drip of saline will be used to keep the line open and confirm its ongoing viability. Fifth, correctional personnel will observe each inmate's arms and check for signs of intravenous incontinence while the drugs are being administered to the inmate.
As Defendants assert, none of these changes relates to Cooey's core complaints. Further, none of these areas were implicated as a basis for Cooey's expert's conclusion that the process presents a risk that Cooey will experience pain. Rather, Dr. Heath, Cooey's expert, criticized the use of pancuronium bromide, the use and dosage of sodium thiopental, the failure to provide a continuous dose of an ultra-short-acting barbiturate, and the lack of information regarding prison personnel's training to prepare and administer the drugs. Cooey cannot prevail on this basis either.
In sum, we hold that the district court erred in ruling that the statute of limitations had not run on Cooey's methodof-execution claim because it used an improper test for establishing the accrual date for § 1983 method-ofinjection challenges.
C. Res Judicata
Because we conclude that Cooey's claim fails on limitations grounds, we need not address the State's res judicata argument.
III. Conclusion
For the foregoing reasons, we REMAND this matter to the district court with instructions to DISMISS Cooey's § 1983 complaint with prejudice as barred by the statute of limitations.
RONALD LEE GILMAN, Circuit Judge, dissenting.

The majority sets forth two rationales for its conclusion that the two-year statute of limitations on Cooey's 42 U.S.C. § 1983 claim accrued at the end of the direct review of his conviction and sentence by the Ohio Supreme Court. First, the majority expresses concern that the district court's accrual date at 0907 the point when the inmate's execution is imminent and all state and federal remedies, including post-conviction proceedings, have been exhausted,0907"subverts the purpose of statutes of limitations, which are designed to promote judicial economy and protect defendants' rights." (Maj. Op. at 419) (citation and quotation marks omitted). The majority's other rationale is that the district court's accrual date "adds a significant period of delay to a state's ability to exercise its sovereign power and to finalize its judgments, which disrupts the vital yet delicate balance between state and federal relations." (Maj. Op. at 419). In essence, however, I believe that these two reasons boil down to the single assertion that the habeas process "takes too long." I find this rationale disturbing for the following reasons:
425 *425 A. Justice and judicial efficiency
Timeliness is important, but justice is more important. Although the common saying is that "justice delayed is justice denied," there are situations in which the adage does not hold true. I believe that this is one of those situations. Judges in criminal cases are allowed to apply the "ends of justice" exclusion to permit certain delays in a criminal prosecution, notwithstanding the defendant's right to a speedy trial. 18 U.S.C. § 3161(h)(8)(A); see also United States v. Monger, 879 F.2d 218, 221-22 (6th Cir.1989) (finding that the magistrate judge properly granted an "ends of justice" continuance in a complex criminal trial involving a large quantity of wiretap evidence and multiple coconspirators). I believe that the "ends of justice" principle is equally applicable to Cooey's § 1983 challenge.
Cooey and the intervenors in his complaint allege that the lethal-injection protocol used in Ohio will violate their Eighth Amendment right to be free of cruel and unusual punishment. Specifically, they contend that the ultra-short acting anesthetic, thiopental sodium, may fail to induce unconsciousness and that, as a result, they may be conscious when the paralytic agents, pancuronium bromide and potassium chloride, are administered. They assert that if that happens, they will likely suffer excruciating pain from the resulting death by suffocation and a chemically induced heart attack, but that, because the pancuronium bromide paralyzes their voluntary muscles, they will be unable to move or speak.
The interests of justice are great where, as here, the § 1983 claimants challenge only the method by which their death sentences are carried out, not the validity of their sentences. Ensuring that executions comply with the Constitution of the United States is a paramount duty for the courts, despite the human and financial costs of protracted postconviction litigation. "[W]hile justice delayed may be justice denied, prompt injustice is not the answer." Haitian Refugee Ctr. v. Smith, 676 F.2d 1023, 1040 n. 43 (5th Cir.1982) (emphasis added).
The majority looks to AEDPA in its analysis of the statute-of-limitations question. I think this blurs the distinction between federal habeas proceedings and § 1983 actions, and misapprehends the distinction between the two causes of action. AEDPA imposes a one-year statute of limitations for filing a federal habeas petition. 28 U.S.C. § 2244(d)(1)(A). This one-year period promotes finality in state-court judgments. Duncan v. Walker, 533 U.S. 167, 179, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) ("This provision reduces the potential for delay on the road to finality by restricting the time that a prospective federal habeas petitioner has in which to seek federal habeas review."). But a § 1983 action is not an attack on the validity of the death-sentenced inmate's conviction or sentence. Cooey concedes in his complaint that he "does not seek injunctive relief . . . as a means of attacking his underlying conviction or death sentence." His sentence became final on March 31, 2003, when the Supreme Court declined to review this court's denial of Cooey's federal habeas petition. Cooey v. Coyle, 538 U.S. 947, 123 S.Ct. 1620, 155 L.Ed.2d 489 (2003). Instead, he raises a claim that the state's method for executing the death sentence will violate his constitutional rights.
The majority faults Cooey for failing to bring his method-of-execution challenge earlier, such as in 1993, when Ohio made lethal injection one of the methods of execution used in the state, or in 2001, when Ohio made lethal 426 injection the sole method of execution. But prior to the Supreme Court's decision in Nelson v. Campbell, *426 541 U.S. 637, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004), method-of-execution challenges under § 1983 were barred in this circuit. See In re Sapp, 118 F.3d 460 (6th Cir.) (holding that a method-of-execution challenge sounded in habeas, not as a civil rights action), cert. denied sub nom., McQueen v. Sapp, 521 U.S. 1130, 117 S.Ct. 2536,

138 L.Ed.2d 1035 (1997). In fact, this court reiterated that position shortly before the Supreme Court decided Nelson. See In re Williams, 359 F.3d 811 (6th Cir.2004) (concluding that a § 1983 method-of-execution challenge should be construed as an motion for leave to file a successive habeas petition, which was denied).
Despite the above caselaw, the majority in the present case asserts that "[t]his Circuit's precedent did not prevent Lewis Williams and John Roe from filing their lethal injection § 1983 actions." Maj. Op. at 9. I agree with the district court's response to this line of argument: "[The majority] is correct that Williams and Roe tried [to bring a § 1983 claim. The majority] neglect[s] to point out, however, that Williams and Roe failed. Their § 1983 action, consistent with In re Sapp, was construed as an unauthorized successive habeas petition and was never fully heard on the merits." Williams and Roe unsuccessfully sought rehearing en banc before this court and their request for review by the United States Supreme Court was denied. Williams v. Taft, 540 U.S. 1206, 124 S.Ct. 1478, 158 L.Ed.2d 129 (2004).
In the present case, the district court declined the State's invitation to hold that Cooey was required to bring his § 1983 method-of-execution challenge prior to Nelson. I agree. Even if Cooey could have brought his civil rights complaint before 2004, which I find dubious, I see no justification for holding that he was required to do so.
I am of the opinion that the district court's analysis of Cooey's complaint and of the State's motion to dismiss is thorough, compelling, and frankly more persuasive than the majority's analysis. After carefully considering the evidence before it, the district court articulated a reasoned basis for setting the accrual point for statute-oflimitations purposes at the time when a prisoner's execution becomes imminent and the prisoner knows or has reason to know of the facts giving rise to his § 1983 claim. The district court fixed the point at which an execution becomes imminent as the time "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."
A death-sentenced inmate knows or has reason to know of the facts of his method-of-execution challenge when he learns the details of the protocol that will be used for his execution. Collyer v. Darling, 98 F.3d 211, 220 (6th Cir.1996) ("Under federal law as developed in this Circuit, the statute of limitations period begins to run when the plaintiff knows or has reason to know that the act providing the basis of his or her injury has occurred."). This latter consideration poses a greater difficulty for ensuring judicial efficiency and stability in Ohio because the lethal-injection protocol is a creature of the Ohio Department of Rehabilitation and Correction (ODRC) and is not established by statute or administrative rule or regulation. The ODRC can change the protocol at any time, regardless of whether an inmate is scheduled for execution.
This concerns me because, as has been evidenced in the aftermath of the Joseph Clark execution, Ohio is free to periodically change its lethal-injection protocol. See Reginald Fields, Ohio revamps lethal-injection procedure, 427 Cleveland Plain Dealer, *427 June 29, 2006, at B 1 (describing the extended effort to execute Joseph Clark after prison officials were unable to find a vein in one arm, the vein in the other arm collapsed shortly after the execution began, and Clark informed correctional staff that "this isn't working"). No statutory framework determines when or how such changes may occur. Nor is there a framework governing when, or even if, such changes will be publicized.
The majority asserts that the protocol changes resulting from the Clark execution do not relate to Cooey's "core complaints" and were not implicated as a basis for his assertion that he may experience pain. Ohio law, however, does not require the ODRC to publish any changes to the lethal-injection protocol. The ODRC deems some information about the protocol to be public information and on that basis will provide it to the public upon request. But the ODRC considers other information nonpublic.
Moreover, I am not convinced that Ohio's 2006 protocol changes were merely "refinements" to the procedure as the state describes them. The switch from high-pressure saline injections to a low-pressure saline drip to flush the IV tubing and maintain its "viability" raises concerns about adequately flushing the tubing between injections so that the drugs do not react with one another before they reach the inmate's arm. I see nothing in the protocol or its amendments that addresses the risk of such an occurrence, or what steps would be taken to prevent or remedy it. As we have learned from reading the sometimes voluminous literature that accompanies even the simplest prescription, drug interactions can dramatically alter the efficacy or safety of pharmaceuticals. Without any further evidence in the record regarding how the changes affect the risk of violating a death-sentenced

inmate's constitutional rights, I am unwilling to agree with the majority that the recent protocol changes do not relate to Cooey's core complaint.
B. When Cooey had reason to know of the grounds for his claim
The majority also contends that Cooey was aware of the lethal-injection drug combination and the equipment that would be used as of at least 2002. This assertion rests on the inclusion with Cooey's complaint of a letter dated April 19, 2002 from James S. Haviland, then the Warden of the Southern Ohio Correctional Facility, where Ohio's only death chamber is located, disclosing information about the lethal-injection protocol. Haviland's letter, however, is addressed to no one and carries no address information for any recipient. From my reading of the letter, I cannot ascertain to whom it was addressed or when Cooey might have learned of its contents.
In the April 19, 2002 letter, Warden Haviland provided the names of the intravenous equipment used in executions and the generic names of the pharmaceuticals used to execute the inmate. He did not disclose the amounts of the drugs to be used, or any information about the form in which they were purchased, stored, or administered. Further, he did not state whether the drugs were administered individually or all at once, and, if individually, in what sequence. There was also no information provided about the length of the IV tubing used, whether any death-chamber personnel monitored the tubing for kinks or blockages, or whether the tubing was flushed between the drugs.
In a letter dated May 30, 2002, Vincent Lagana, ODRC Staff Counsel, responded to an unidentified recipient's 428 request for additional information about the lethal-injection protocol by noting that "information *428 about [lethal-
injection] training, procedures, and procurement. . . . falls outside the scope" of the Ohio Public Record Law. Nonetheless, Lagana provided some information about the procedure because "the Department recognizes [that] the public has legitimate interests in this subject." This information revealed that the three drugs in the lethalinjection protocol were administered in "normal saline concentration," that the thiopental sodium and pancuronium bromide were purchased from "a local pharmacy" by the correctional institution pharmacy, and that the drugs were kept by the Warden in accordance with procedures developed by the Ohio State Board of Pharmacy and the Drug Enforcement Agency.
I note, however, that the letter also includes potentially misleading information. For example, it states that "[a] Medical Doctor has pronounced death." Although this might be true to the extent that a medical doctor pronounced the death of an inmate at some point after the execution was completed, it fails to acknowledge that several associations of medical professionals, including the American Medical Association (AMA) and the Society of Correctional Physicians (SCP), direct their members not to be involved in a legally authorized execution. The AMA permits physicians to "certify[] death, provided that the condemned has been declared dead by another person." Am. Med. Ass'n, Code of Ethics E-2.06 (2000). Under the SCP Code of Ethics, "[t]he correctional health professional shall not be involved in any aspect of execution of the death penalty." Soc'y of Corr. Physicians, Code of Ethics (1998), http://www. corrdocs.org/ethics.html (last visited Feb. 16, 2007).
I take the facts in the light most favorable to Cooey, as I must when reviewing a denial of a motion to dismiss under the de novo standard. See Miller v. Currie, 50 F.3d 373, 377 (6th Cir.1995). After reviewing the letters from ODRC officials, which purport to set out the lethal-injection policy that was in place in 2002, I am unable to conclude that Cooey had reason to know of the facts underlying his claim prior to that time. The ODRC's response to requests for information has been grudging and incomplete, and it apparently has unfettered discretion in determining whether the requested information is or is not to be made public.
Even having read the letters, I can see how a reasonable person would still be uninformed as to Ohio's deathpenalty protocol or how it might support a civil rights action. At best, Cooey's knowledge of the protocol as of May of 2002 would have been murky; it would have been totally opaque at any time prior to that date. The point of all this is that the majority's assertion that Cooey had reason to know of the basis for his complaint in the 1990s is not supported by the record. And although I recognize that May of 2002 represents a point more than two years before Cooey in fact filed his § 1983 complaint, this is only one part of the necessary analysis. The other part is to determine when Cooey's execution date became imminent. This did not occur until March 31, 2003, when the Supreme Court denied his petition for certiorari in his habeas proceeding. He filed his present complaint on December 8, 2004, which was 21 months later.

C. When Cooey's execution became imminent
Almost every death-sentenced inmate challenges his or her conviction and sentence through habeas proceedings. Under the majority's rationale, however, virtually every death-sentenced litigant will be barred from 429 bringing a § 1983 action challenging *429 the constitutionality of the method of execution chosen by the State. Habeas proceedings have become, for good or for ill, a routine part of the process of carrying out a death sentence in our criminal justice system. To require a petitioner to file a § 1983 action three to five years before his or her execution in order to obtain legal review of the lethal-injection protocol strikes me as counterintuitive, unduly harsh, and just plain wrong. Yet that is what the majority's rationale will require.
Moreover, both the petitioners and the courts will have to manage the cognitive dissonance and inefficiency of simultaneously deciding (1) habeas petitions attacking the validity of the conviction and sentence, and (2) § 1983 actions challenging the constitutionality of the procedure used to carry out the sentence. The majority will thus force death-sentenced prisoners to pursue their habeas claims that assert their lack of culpability or, in some instances, their actual innocence, while simultaneously implying their guilt by requesting that the sentence imposed upon them be carried out in a constitutionally compliant manner.
Statutes of limitations are intended to "promote judicial economy and protect defendants' rights." John Hancock Fin. Servs., Inc. v. Old Kent Bank, 346 F.3d 727, 734 (6th Cir.2003). But the concept of judicial economy contemplates more than just the minimization of temporal delay between the imposition of a capital sentence and an inmate's execution. Although the Fifth Circuit has held that a method-of-execution challenge can be raised at any time after an inmate's sentence became final on direct review, Neville v. Johnson, 440 F.3d 221, 222 (5th Cir.2006) (per curiam), this analysis is incomplete. The majority defends its adoption of the Neville accrual point as "the most logical," but I consider even more logical the analysis of the district court in the present case that fixes the statute of limitations accrual date at the point when a petitioner's execution becomes imminent and he has reason to know of the facts giving rise to his claim.
This accrual date provides clarity and certainty to both the death-sentenced inmate and the State that the sentence is final and not susceptible to attack, that the execution date is set, and that the protocol for that execution is likely fixed. Such clarity also aids the judicial process and increases the efficiency of judicial proceedings by ensuring that the federal courts are not overseeing simultaneous but contradictory arguments from the parties.
Contrary to the majority, I see nothing in the Supreme Court's February 21, 2007 opinion in Wallace v. Kato, ___ U.S. ___, 127 S.Ct. 1091, ___ L.Ed.2d ___ (2007), that bears on the issue of when the statute of limitations should accrue in the case before us. Wallace is a civil rights case that turned on the well-recognized point that "[t]he cause of action accrues even though the full extent of the injury is not then known or predictable." Id. at 1097. Here, Cooey had no reasonable basis to know if he would have any injury at all (in terms of the lethalinjection protocol) until his execution date became imminent. I therefore conclude that Cooey's § 1983 action is not barred by Ohio's two-year statute of limitations.
D. Equitable arguments to forestall delay
Because I believe that the statute of limitations should not begin to run until an execution becomes imminent, and because Ohio will almost always move promptly to set an execution date, I would envision that the statute of 430 limitations would rarely, if ever, be an issue in these § 1983 cases. The crucial issue for federal courts to decide, *430 then, is not the statute of limitations, but whether equitable considerations should bar a prisoner from bringing a last-minute § 1983 claim. This is a concern that Ohio makes much of in the present case. Although there is undoubtedly some merit to this concern, I see no reason to diverge from the Supreme Court's position in Hill v. McDonough, ___ U.S. ___, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006), that "inmates seeking time to challenge the manner in which the State plans to execute them must satisfy all of the requirements for a stay, including a showing of a significant possibility of success on the merits." Id. at 2104. This includes applying "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 v. Campbell, 541 U.S. 637, 650, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004).

The district court, with its ability to hear and weigh the evidence, necessarily has the greatest information available to it from which to balance the equities when considering a death-sentenced prisoner's request for a stay of execution. As we have seen in the present case, the district court has capably engaged in that very task, despite the sometimes inconsistent guidance received from this court. Compare Cooey (Lundgren) v. Taft, No. 06-4374 (6th Cir. Oct. 23, 2006) (summarily vacating the stay of execution for Jeffrey Lundgren, who had an execution date of October 24, 2006), with Cooey (Henderson) v. Taft, No. 06-4527 (6th Cir. Dec. 1, 2006) (reversing the district court's denial of Jerome Henderson's motion to stay his execution).
The district court also considered and addressed the concern that death-sentenced inmates might seek to use § 1983 actions as a delaying tactic, cautioning would-be plaintiffs that "nothing . . . should be construed as guaranteeing or even suggesting that a plaintiff who waits too long to file his § 1983 action raising a method-ofexecution claim will be entitled to a preliminary injunction." This concern about excessive delay was underscored by the Supreme Court's decision in Hill, which stated that equity requires that inmates seeking a stay of execution to raise a § 1983 claim must meet all the requirements for a stay. 126 S.Ct. at 2104. "[E]quity must be sensitive to the State's strong interest in enforcing its criminal judgments without undue interference from the federal courts." Id.
Factors that may play a persuasive or even dispositive role in a court's determination of whether to grant a stay of execution might include such considerations as (1) whether the protocol has recently been changed, (2) whether the petitioner has been diligent in pursuing his or her claim, (3) whether the petitioner has taken reasonable steps to ascertain what the protocol is (and I note that past ODRC letters in response to requests for information about the protocol have been shown to be incomplete and terse to the point of being uninformative), and (4) whether the traditional factors involved in the balancing test for granting a preliminary injunction weigh in favor of a stay. A conclusory statement by a petitioner with no factual support or development is unlikely to result in the entry of a stay in this or any other matter. Petitioners who have been diligently pursuing their method-of-execution claims, in contrast, will likely include affidavits from a medical expert in support of their arguments. If reasonable jurists could debate whether a well-documented claim could result in the relief that the petitioner seeks, then equitable considerations, barring other persuasive evidence to the contrary, would weigh in favor of granting a stay.
431 *431 I again wish to emphasize that the relief sought here is not to be spared the death penalty, but rather to be spared from cruel and unusual punishment in the administration thereof. Because I am convinced that Cooey brought his § 1983 claim within the two-year statute of limitations period as properly defined, I respectfully dissent.
[1] Dennis re-filed his complaint on September 27, 2004. Cooey did not join in this filing. Dennis also re-filed his request for a preliminary injunction, which the district court denied on September 29, 2004. This Court upheld the denial of the injunction and Dennis was subsequently executed.
[2] In 1993, a bill was passed into law granting prisoners the option to choose between death by electrocution or lethal injection, with electrocution as the "default" method. See Ohio Rev.Code § 2949.22(A)-(B) (2000). In 2001, Ohio made lethal injection the sole method of execution. See Ohio Rev.Code § 2949.22(A) (amending Ohio Rev.Code Ann. § 2949.22(A) (West 2000)).
[3] The letter states in relevant part:
The intravenous equipment was purchased from a commercial source and consisted of:
01). Angiocath Abbocath-7
02). Primary IV Set No. 1820 (70 inch)
03). 0.9?) Sodium Chloride, 1000m.
The generic names of the pharmaceuticals used are:
01). Pancuronium Bromide

02). Potassium Chloride
03). Thiopental Sodium
There is no cardiac monitoring equipment used other than a stethoscope.
[4] The May 30, 2002 letter from the Ohio Department of Rehabilitation and Correction provides in pertinent part:
The execution team begins rehearsing the procedure thirty days from the execution date. On the day of the execution, saline locks are placed in each of the prisoner's arms prior to entering the death chamber. After the prisoner has been placed on the execution bed, tubing for the delivery of the chemicals is attached to each lock. The chemicals are administered via hand infusion. Persons performing these functions have been certified as either a licensed practical nurse, paramedic or phlebotomy technician. The chemicals are infused into one arm. If the arm becomes unavailable, the other arm would be used. A Medical Doctor has pronounced death.
The drugs are administered in the following dosages: two grams of thiopental sodium in normal saline concentration; one hundred milligrams of pancuronium bromide in normal saline concentration; and 100 milliequivalents of potassium chloride in normal saline concentration. The thiopental sodium and pancuronium bromide are purchased from a local pharmacy. The institution pharmacy purchases the drugs. It turns the drugs over to the Warden and keeps a record of receipt and usage. Purchase and record keeping procedures have been coordinated with the Drug Enforcement Agency and the Ohio State Board of Pharmacy.
[5] Neville cites White v. Johnson, 429 F.3d 572, 574 (5th Cir.2005) (per curiam), as support for this proposition. However, the reference to White is merely a concession by the state that when an inmate's conviction became final on direct review, his challenge to the method of execution would have been appropriately filed at any time thereafter. See White, 429 F.3d at 574 ("The State concedes that when Harris's conviction became final on direct review, his challenge to the State's method of execution, in the absence of dramatic changes to the State's protocol0907would have been appropriately filed at any time thereafter and need not await an imminent execution date.").
[6] Direct review of conviction includes review by the United States Supreme Court. Bell v. Maryland, 378 U.S. 226, 232, 84 S.Ct. 1814, 12 L.Ed.2d 822 (1964). The one-year statute of limitations for habeas review under AEDPA does not begin to run until the ninety-day time period for direct review in the United States Supreme Court has expired. Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir.2000); Isham v. Randle, 226 F.3d 691, 694-95 (6th Cir.2000).
[7] The Sixth Circuit decided in In re Williams on January 12, 2004. The petitioner in that case, whose claim is identical to Cooey's, based his request for a stay of execution on the Supreme Court having granted certiorari in Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004). The majority decided that it would continue to adhere to Sixth Circuit precedent, namely In re Sapp, 118 F.3d 460, 464 (6th Cir.1997). At the same time, while the majority affirmed the district court's decision construing the § 1983 action as a successive habeas corpus action and transferring it to this Court for authorization, it was by a slim margin. See Williams, 359 F.3d at 814-17 (one judge concurring on different grounds, one judge dissenting, and a close split among the judges in denying the petition for en banc review).
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 489 F.3d 775 (2007)
Richard Wade COOEY, II, Plaintiff-Appellee, v.
Ted STRICKLAND, Governor; Terry J. Collins, Director; E.C. Voorhies, Warden, Defendants-Appellants.
No. 05-4057.
United States Court of Appeals, Sixth Circuit.
June 1, 2007.
Kelly L. Culshaw, Gregory W. Meyers, Kimberly S. Rigby, Public Defender's Office, Columbus, OH, for PlaintiffAppellee.
Marianne Pressman, Kelley A. Sweeney, Asst. Atty. General, Michael L. Collyer, Office of the Attorney General, 776 Cleveland, *776 OH, Heather L. Gosselin, Attorney General's Office, Columbus, OH, for Defendants-Appellants.
Before: SUHRHEINRICH, SILER, and GILMAN, Circuit Judges.
ORDER
The court having received a petition for rehearing en banc, and the petition having been circulated not only to the original panel members but also to all other active[*] judges of this court, and less than a majority of the judges having favored the suggestion, the petition for rehearing has been referred to the original panel.
The panel has further reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of the case. Accordingly, the petition is denied.
RONALD LEE GILMAN, Circuit Judge, with whom MARTIN, DAUGHTREY, MOORE, COLE, and CLAY, Circuit Judges, join, dissenting from the denial of rehearing en banc.
I write because I firmly believe that the opinion of the panel majority is wrongly decided and that we should have taken this case up for consideration en banc. The fact that five of my colleagues joined me in voting in favor of rehearing demonstrates that I am not alone in my view. Accordingly, I dissent from the denial of rehearing this case en banc.
This case presents an issue of exceptional importance: When does the statute of limitations begin to run on a 42 U.S.C. § 1983 challenge to a lethal-injection protocol? The panel's majority opinion, looking to the standard set forth in the Antiterrorism and Effective Death Penalty Act of 1996 for habeas cases, held that the limitations period begins at the conclusion of direct review of a death-sentenced inmate's conviction and sentence. Cooey v. Strickland, No. 05-4057, at 9 (concluding that the actual execution date will not suffice for limitations purposes, but that "it stands to reason that the next most appropriate accrual date should mirror that found in the AEDPA: upon conclusion of direct review in the state court or the expiration of time for seeking such review"). According to the majority, this would "promote judicial economy and protect defendants' rights" while protecting against "a significant period of delay to a state's ability to exercise its sovereign power and to finalize its judgments." (Id. at 7) There are two significant problems with the majority's analysis: first, under the present scheme, a deathsentenced prisoner will have to bring a new § 1983 claim each time the protocol changes in a way that implicates constitutional concerns, and second, a death-sentenced prisoner might not know when his cause of action accrues because Ohio's lethal-injection protocol can change at any time during the pendency of his postconviction and habeas proceedings.
The Supreme Court ruled in Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004), and confirmed in Hill v. McDonough, ___ U.S. ___, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006), that § 1983 proceedings

are the proper means of challenging a lethal-injection protocol. These are not claims that sound in habeas. See Nelson, 541 U.S. at 647, 124 S.Ct. 2117. Accordingly, the accrual date of the statute of limitations should be determined by looking to "when the plaintiff knows or has reason to know" of his injury. See, e.g., Collyer v. 777 Darling, 98 F.3d 211, 220 (6th *777 Cir.1996). The district court, to my mind, properly determined that the statute of limitations accrues at the time that the prisoner's execution becomes imminent and the prisoner knows or has reason to know of the facts giving rise to his § 1983 claim. See Cooey, No. 05-4057, at 13 (Gilman, J., dissenting). Moreover, these are factors over which the state can exercise significant control by promptly requesting that the Ohio Supreme Court set a date of execution, and by publishing the details of the lethalinjection protocol so that a death-sentenced inmate has timely notice of the procedure that will be used to execute him. Applying the district court's compelling reasoning will also avoid the inefficient litigation of multiple and inconsistent claims.
The majority's opinion, in contrast, will lead to simultaneous, and contradictory, proceedings in state and federal court. Death-sentenced inmates will bring habeas petitions attacking the validity of their conviction and sentence at the same time they pursue § 1983 actions challenging the constitutionality of the lethal-injection protocol chosen by the state. To be sure, Ohio argues that this inefficiency will obtain only long enough for one properly filed § 1983 action to be tried to completion. But this argument assumes far too much. Under Ohio law, the Ohio Department of Rehabilitation and Correction has virtually unlimited discretion over the lethal-injection protocol used, as well as over whether to release information relating to the protocol. There is no guarantee, and Ohio does not suggest otherwise, that a single § 1983 challenge will resolve all constitutional issues relating to Ohio's lethal-injection protocol.
Both the majority and Ohio express a legitimate concern about the State's "significant interest in meting out a sentence of death in a timely fashion." Nelson, 541 U.S. at 644, 124 S.Ct. 2117. An unrealistic commencement date based upon AEDPA's one-year statute of limitations, however, is not the appropriate way to address this concern. The Supreme Court recently confronted this issue in Hill v. McDonough, ___ U.S. ___, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006). Hill, who was facing execution by lethal injection, brought a § 1983 claim that Florida's lethal-injection protocol violated the Eighth Amendment's prohibition on cruel and unusual punishment. Id. at 2100. Finding that Hill's claim did not challenge his sentence as a general matter, but rather the method by which it would be carried out, the Court held that the claim was properly brought as a § 1983 civil rights action under Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004). But the Court also held that plaintiffs such as Hill are not entitled to automatic stays of execution. Hill, 126 S.Ct. at 2104 ("It is not available as a matter of right, and equity must be sensitive to the State's strong interest in enforcing its criminal judgments without undue interference from the federal courts.") Instead, "like other stay applicants, inmates seeking time to challenge the manner in which the State plans to execute them must satisfy all of the requirements for a stay, including a showing of a significant possibility of success on the merits." Id.
The district court in the present case has held likewise and has appropriately denied injunctive relief to some intervenors in this case who failed to satisfy those requirements. See, e.g., Cooey (Hicks) v. Taft, No. 04-CV-1156 (S.D.Ohio Nov. 23, 2005) (granting Hicks's motion to intervene but denying his motion for a preliminary injunction because Hicks unduly delayed in bringing his claim).
Finally, I note that the reasoning of the majority was recently rejected in a factually similar lethal-injection 778 challenge brought by an Alabama prisoner. See *778 Jones v. Allen, 483 F.Supp.2d 1142, 1146-48 (M.D.Ala.),
aff'd, 485 F.3d 635 (11th Cir.), cert. denied ___ U.S. ___, 127 S.Ct. 2160, 167 L.Ed.2d 887 (2007). The district court in Jones concluded that the Cooey majority erred in its statute-of-limitations analysis by using the backward-looking model of a § 1983 claim seeking damages for a constitutional violation that had already occurred, "whereas a method-of-execution lawsuit seeks injunctive relief for an allegedly unconstitutional act that has not yet occurred," but for which there can be no "after-the-fact" remedy. Jones, 483 F.Supp.2d at 1147. This serves to support my view that the panel opinion in our case was wrongly decided.
I believe that en banc review would have been appropriate in the present case to ensure that the law in this Circuit conforms with Supreme Court precedent and to prevent the judicial inefficiency of juggling repetitive, simultaneous, and contradictory litigation from death-sentenced prisoners.

[*] Judge Cook is recused in this case.
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