RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0146p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

RICHARD COOEY, et al.,

Plaintiffs,

JAMES J. FILIAGGI,

Proposed Intervenor-Appellant,

v.

TED STRICKLAND, Governor, REGINALD

WILKINSON, Director, TERRY COLLINS, Director,

EDWARD VOORHIES, Warden, JAMES HAVILAND,

Warden,

Defendants-Appellees.

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No. 07-3488

Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 04-01156—Gregory L. Frost, District Judge.

Decided and Filed: April 23, 2007 

Before: BATCHELDER, COLE, and GIBBONS, Circuit Judges. 

_________________

OPINION _________________

ALICE M. BATCHELDER, Circuit Judge. Ohio inmate James J. Filiaggi is scheduled to

be executed on Tuesday, April 24, 2007. On Thursday, April 19, 2007, Filiaggi filed a motion to

intervene in Richard Cooey’s civil suit challenging Ohio’s lethal injection protocol. On Friday,

April 20, 2007, Filiaggi filed an emergency motion for a preliminary injunction, or an order under

the All Writs Act, 28 U.S.C. § 165l(a), staying his execution. On Monday, April 23, 2007, the

district court denied Filiaggi’s motion to intervene and denied as moot his motion for injunctive

relief. Filiaggi immediately filed both a notice of appeal from the district court’s order and an

emergency motion for stay of execution to permit him to pursue that appeal. 

Filiaggi seeks an order from this Court staying his execution so that he may continue his

quest to intervene in Cooey v. Strickland, 479 F.3d 412 (6th Cir. 2007), by appealing the district

court’s order denying his motion to intervene in that case. “[A] stay of execution is an equitable

remedy. 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.” Hill

v. McDonough, 126 S. Ct. 2096, 2104 (2006). “[T]he Supreme Court [has] 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.’” Cooey, 479 F.3d at 421 (quoting Nelson v. Campbell,

1
No. 07-3488 Cooey (Filiaggi), et al. v. Strickland, et al. Page 2

541 U.S. 637, 650 (U.S. 2004)). Moreover, the Supreme Court recently concluded that “[f]iling an

action that can proceed under § 1983 does not entitle the complainant to an order staying an

execution as a matter of course.” Hill, 126 S. Ct. at 2104.

The district court denied Filiaggi’s motion to intervene because it found that Filiaggi has not

– and Filiaggi concedes that he has not – exhausted his administrative remedies as is required under

the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a); that failure to exhaust is not

excused by Cooey’s having exhausted his own administrative remedies; that Filiaggi’s attempt to

intervene is untimely as a matter of law; and because Filiaggi’s motion to intervene in this § 1983

action must therefore be denied, the court had no basis upon which to stay the execution. 

We have carefully reviewed the law and the facts underlying Filiaggi’s motion to intervene

and for a stay of execution, the district court’s Opinion and Order denying the motion, and the briefs

of Filiaggi and the State with regard to Filiaggi’s Emergency Motion. We conclude that, for the

reasons stated by the district court, Filiaggi has not demonstrated any likelihood that he could

succeed on the merits of his motion to intervene. Further, we conclude that because Filiaggi has not

demonstrated a likelihood of success with regard to his attempt to intervene, and in light of the

State’s strong interest in proceeding with its judgment and the patent untimeliness of Filiaggi’s

motion, he has not demonstrated any basis upon which this court should exercise its equitable power

to stay his execution. See Nelson v. Campbell, 541 U.S. 637, 649-50 (2004). 

Accordingly, the Emergency Motion for Stay of Execution is DENIED.