RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 19a0299p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

IN RE: OHIO EXECUTION PROTOCOL LITIGATION.

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BENNIE ADAMS, et al.,

Plaintiffs,

WARREN K. HENNESS,

Plaintiff-Appellant,

v.

MIKE DEWINE, et al.,

Defendants-Appellees.

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No. 19-3064

Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 2:11-cv-01016—Michael R. Merz, Magistrate Judge.

Decided and Filed: December 17, 2019

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

_________________

COUNSEL

ON BRIEF: Allen L. Bohnert, David C. Stebbins, Lisa M. Lagos, Paul R. Bottei, Adam M. 

Rusnak, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE SOUTHERN 

DISTRICT OF OHIO, Columbus, Ohio, Randall R. Porter, OFFICE OF THE OHIO PUBLIC 

DEFENDER, Columbus, Ohio, James A. King, PORTER, WRIGHT, MORRIS & ARTHUR, 

Columbus, Ohio, for Appellants. Benjamin M. Flowers, Michael J. Hendershot, OFFICE OF 

THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees. Sarah K. Campbell, 

OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Amicus 

Curiae.

>
No. 19-3064 In re Ohio Execution Protocol Litig. Page 2

_____________________

AMENDED OPINION

_____________________

SILER, Circuit Judge. Warren Keith Henness appeals the district court’s decision 

denying his request for injunctive relief and for a stay of execution. We AFFIRM.

I.

Henness was convicted of several offenses, including aggravated murder, from conduct 

occurring in 1992. State v. Henness, 679 N.E.2d 686, 691, 698 (Ohio 1997). Upon conviction, 

the court sentenced Henness to death. Id. at 691. 

Henness subsequently filed suit challenging Ohio’s method of execution under 42 U.S.C. 

§ 1983, claiming that it violated his constitutional rights. As his execution date approached, 

Henness moved the district court to stay his execution and to preliminarily enjoin Ohio from 

executing him. Specifically, he argued that the drug protocol Ohio intended to use to carry out 

his death sentence—which is composed of 500 milligrams of midazolam, a paralytic agent, and 

potassium chloride—was likely to cause him to suffer a painful death, and that, given the 

availability of significantly less painful alternative methods of execution, the use of that protocol 

would violate the Eighth Amendment’s prohibition on cruel and unusual punishment. Though 

Henness presented expert testimony in support of his claim, the district court denied relief. 

Henness now appeals certain of the court’s conclusions.

II.

We review a district court’s decision to grant or deny a preliminary injunction for abuse 

of discretion. Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 664 (2004). “Under this 

standard, [we] review[] the district court's legal conclusions de novo and its factual findings for 

clear error.” Babler v. Futhey, 618 F.3d 514, 520 (6th Cir. 2010) (citation omitted).

“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed 

on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that 
No. 19-3064 In re Ohio Execution Protocol Litig. Page 3

the balance of equities tips in his favor, and that an injunction is in the public interest.” Glossip 

v. Gross, 135 S. Ct. 2726, 2736 (2015) (citation omitted). 

Here, the district court’s decision focused on the question whether Henness demonstrated 

a likelihood of success on the merits of his Eighth Amendment claim. Thus, our review is 

limited to that question.

In Glossip, the Supreme Court held that, to demonstrate a likelihood of success on the 

merits of an Eighth Amendment challenge to a state’s method of execution, the plaintiff must: 

(1) show that the intended method of execution is “sure or very likely to cause serious illness and 

needless suffering,” and (2) “identify an alternative [method] that is feasible, readily 

implemented, and in fact significantly reduces a substantial risk of severe pain.” Glossip, 135 S. 

Ct. at 2737 (citations, brackets, internal quotations, and original emphasis omitted). 

Applying this framework, the district court found that Henness met his burden on 

Glossip’s first prong but failed to propose a viable alternative method of execution as required by 

the second. We review each prong separately.

A. Glossip’s First Prong: Needless Pain and Suffering

With respect to Glossip’s first prong, the “relevant question” is whether the inmate has 

met his “heavy burden to show that” the state’s chosen method of execution will cause serious 

pain that the inmate “is sure or very likely to be conscious enough to experience.” Campbell v. 

Kasich, 881 F.3d 447, 450 (6th Cir. 2018) (quoting Fears v. Morgan, 860 F.3d 881, 886 (6th 

Cir.) (en banc), cert. denied, 137 S. Ct. 2238 (2017)). 

Here, the district court determined that Henness satisfied this burden. In reaching that 

conclusion, the court first explained that Ohio’s protocol was sure or very likely to cause 

Henness serious pain for two reasons. First, the court reasoned that the 500 milligram dose of 

midazolam—the protocol’s initiatory drug—was likely to cause pulmonary edema (i.e., “chest 

tightness, chest pain, and sensations of drowning, suffocating, and dying”), which, in the district 

court’s view, qualifies as the type of serious pain prohibited by the Eighth Amendment. Second, 

the court noted that the combination of the paralytic agent and potassium chloride would 
No. 19-3064 In re Ohio Execution Protocol Litig. Page 4

certainly cause a fully conscious person to endure needless suffering. The court then concluded 

that, “[b]ecause midazolam has no analgesic properties,” it could not suppress Henness’s 

consciousness deeply enough to prevent him from experiencing either of the identified types of 

pain. 

We disagree. Glossip’s first prong, to begin, presents a high bar. Because the U.S. 

Constitution does not guarantee “a painless death,” prisoners must show more than a risk of pain. 

Bucklew v. Precythe, 139 S. Ct. 1112, 1124 (2019). To be constitutionally cognizable, the pain has 

to be “severe.” Id. at 1130, 1133 n.4; Glossip, 135 S. Ct. at 2737. How severe? Bucklew tells us that 

earlier modes of execution offer “instructive” examples, both of what qualifies as too severe 

(“[b]reaking on the wheel, flaying alive, rending asunder with horses”) and what does not (hanging). 

Bucklew, 139 S. Ct. at 1123 (quoting Benjamin Oliver, The Rights of an American Citizen 186 

(1832)). Take death by hanging. “Many and perhaps most hangings were evidently painful for the 

condemned person,” Bucklew observed, “because they caused death slowly,” namely through 

suffocation over several minutes. Id. at 1124. Despite that risk of pain, despite indeed the near 

certainty of that pain, hangings have been considered constitutional for as long as the United States 

have been united. All of this puts Henness’s claims about risks of pain in context. Yes, he points to 

the risks of chest tightness and chest pain. But that pales in comparison to the pain associated with 

hanging. And yes, he points to the risks of sensations of drowning and suffocation. But that looks a 

lot like the risks of pain associated with hanging, and indeed may present fewer risks in the typical 

lethal-injection case. 

Further, the district court erred in finding that Henness met his burden of proving that 

midazolam is incapable of suppressing his consciousness enough to prevent him from 

experiencing—at a constitutionally problematic level—the pain caused by the combination of the 

paralytic agent and potassium chloride. The relevant inquiry is whether an inmate injected with 

500 milligrams of midazolam would subjectively experience unconstitutionally severe pain—an 

inquiry that Henness has failed to prove should be answered in his favor. To be sure, the bulk of 

Henness’s evidence focuses on the fact that midazolam is incapable of rendering an inmate 

insensate to pain. But “the Eighth Amendment does not guarantee a prisoner a painless death,” 

so it is immaterial whether the inmate will experience some pain—as noted, the question is 

whether the level of pain the inmate subjectively experiences is constitutionally excessive. 
No. 19-3064 In re Ohio Execution Protocol Litig. Page 5

See Bucklew, 139 S. Ct. at 1124. And the fact that midazolam may not prevent an inmate from 

experiencing pain is irrelevant to whether the pain the inmate might experience is 

unconstitutional. Without evidence showing that a person deeply sedated by a 500 milligram 

dose of midazolam is still “sure or very likely” to experience an unconstitutionally high level of 

pain, Henness has not met his burden on this prong, and the district court clearly erred in 

concluding otherwise.

The point is not new. We reached the same conclusion, as an en banc court, in Fears. 

See 860 F.3d at 884-86. There (as here) the defendant claimed that the 500-milligram dose of 

midazolam used in Ohio’s three-drug protocol could not adequately allay the risk of serious pain. 

Id. After considering the testimony of several medical experts, as well as reports from numerous 

executions carried out using the three-drug protocol, we rejected the suggestion that the protocol 

was “‘sure or very likely’ to cause serious pain.” Id. at 886-90 (quoting Glossip, 135 S. Ct. at 

2737). To the contrary, we reasoned, doses of midazolam were “sometimes used alone for 

intubation” during medical procedures without causing meaningful distress. Id. at 888. Henness 

offers no good reason for reaching a different outcome today.

B. Glossip’s Second Prong: Existence of Available Alternative

Though we disagree with the district court’s analysis on Glossip’s first prong, we agree 

that Henness failed to meet his burden on Glossip’s second prong. The second prong requires an 

inmate to: (1) identify “an alternative method of execution” that is “‘available,’ ‘feasible,’ . . . 

can be ‘readily implemented,’” Fears, 860 F.3d at 890 (quoting Glossip, 135 S. Ct. at 2737), and 

that will “‘significantly reduce [the] substantial risk of severe pain’” associated with the state’s 

existing method, and (2) prove that the state lacks a “‘legitimate’ reason for declining to switch 

from its current method of execution” to the proposed alternative, Bucklew, 139 S. Ct. at 1128-

30 (citations omitted). To meet this burden, “the inmate’s proposal must be sufficiently detailed 

to permit a finding that the State could carry it out ‘relatively easily and reasonably quickly.’” 

Id. at 1129 (citation omitted). 

Under this standard, Henness’s failure to satisfy Glossip’s first prong necessarily means 

that he cannot demonstrate a likelihood of success on the second prong. Fears, 860 F.3d at 890. 
No. 19-3064 In re Ohio Execution Protocol Litig. Page 6

In other words, because Henness has not shown that Ohio’s existing method of execution causes 

severe pain (discussed above), it is impossible for him to show the existence of an alternative 

method of execution that would “significantly reduce [the] substantial risk of severe pain” 

caused by the existing method. Bucklew, 139 S. Ct. at 1128-30 (citations omitted).

But even if we were to agree with Henness that Ohio’s method of execution is very likely 

to cause either of the types of severe pain identified by Henness and the district court, we would 

still find that Henness has failed to carry his burden under Glossip’s second prong. This is 

because Henness’s proposed alternative method—death by secobarbital (Appellant Br. at 14, 43-

67)—is not a viable alternative. As the Supreme Court recently explained, a state may decline to 

utilize an alternative method of execution—even if it is otherwise feasible and capable of being 

readily implemented—so long as the state has a legitimate reason for doing so, and “choosing 

not to be the first [state] to experiment with a new method of execution is a legitimate reason to 

reject it.” Bucklew, 139 S. Ct. at 1128-30. (internal quotation marks omitted). It follows that, 

because no other state uses secobarbital to carry out an execution, Ohio may decline to 

implement it.

Henness’s proposed alternative independently fails because he has not shown it is 

“feasible.” Glossip, 135 S. Ct. at 2737. It comes with a host of complications. Henness for one 

failed to show that Ohio could obtain secobarbital with an “ordinary transactional effort.” Fears, 

860 F.3d at 891. He pointed to a single vendor but offered no evidence that the vendor would be 

willing to supply secobarbital for executions as opposed to assisted suicides. Henness offered no 

evidence that the vendor met the requirements for a license to distribute dangerous drugs in 

Ohio. Even if the State could obtain the drug, carrying out the execution would raise still more 

complications. Because secobarbital has never been used in an execution, all medical evidence 

about it comes from assisted suicides. It is fair to wonder whether there is a difference between 

inserting a secobarbital feeding tube into the stomach of a patient who wants to die and an 

inmate who does not. Inmate resistance could make the procedure next to impossible or at the 

least unseemly. See Baze, 553 U.S. at 57 (recognizing that States have “an interest in preserving 

the dignity of the [execution] procedure”). Through it all, at least one more risk remains. 

Secobarbital could take over two days to cause death or might not cause death at all, a 
No. 19-3064 In re Ohio Execution Protocol Litig. Page 7

contingency and risk that Henness does not account for. For all these reasons, the district court 

correctly found that Henness failed to show secobarbital was a feasible alternative. 

III.

As a final point, we note that Henness’s last-minute motion to dismiss on mootness and 

ripeness grounds is without merit. Contrary to his contentions, Ohio has said that it intends to 

resume executions with this protocol if we approve. See, e.g., Andrew J. Tobias, Gov. Mike 

DeWine Freezes All Ohio Executions While New Method Developed, Cleveland.com (February 

19, 2019), https://perma.cc/2HUL-HBUG (last accessed August 9, 2019). Thus, his challenge is 

not moot. And his challenge is ripe—notwithstanding the fact that his execution has been 

delayed. 

IV.

In sum, though we disagree with the district court’s analysis regarding Glossip’s first 

prong, we nonetheless AFFIRM its decision denying Henness’s requests to stay his execution 

and temporarily enjoin Ohio from executing him. Further, we DENY Henness’s motion to 

dismiss.