In Re: Ohio Execution Protocol Litigation, No. 2:2011cv01016 - Document 3255 (S.D. Ohio 2020)
Court Description: ORDER GRANTING DEFENDANTS' MOTION TO THE EXTENT IT CHALLENGES CLAIMS ALREADY DISMISSED FROM THE FOURTH AMENDED OMNIBUS COMPLAINT. Signed by Magistrate Judge Michael R. Merz on 9/10/2020. (kpf)
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ge urges the parties to consider moving for a partial judgment under Fed. R. Civ. P. 54 so that a decision of the Sixth Circuit on the many issues raised in Defendants’ Motion to Dismiss can be obtained. (Scheduling Order, ECF No. 2109, PageID 103627-28). None of the parties accepted this invitation, so there has as yet been no circuit review of this Court’s analysis of the listed claims in 6 Case: 2:11-cv-01016-EAS-MRM Doc #: 3255 Filed: 09/10/20 Page: 7 of 9 PAGEID #: 156841 the 4AOC. Hand (and the other Plaintiffs) therefore cannot be faulted for repeating these claims in his ISC to preserve them for eventual appeal. Nevertheless, the viability of the listed claims under Fed.R.Civ.P. 12(b)(6), applying what the Magistrate Judge continues to believe is the correct standard for Rule 12(b)(6) motions, has already been decided by this Court. Failure of the Defendants to specify these claims in the Motion to Dismiss does not deprive this Court of authority to stand on its prior decision and imposes no unfairness on Hand, who had adequate opportunity to litigate the viability of these claims under Fed.R.Civ.P. 12(b)(6) in the 2017-18 proceedings. The Magistrate Judge elects to decide the Motion to Dismiss as to those claims on the basis of the law of the case. Under the law of the case doctrine, findings made at one point in litigation become the law of the case for subsequent stages of that same litigation. United States v. Moored, 38 F.3d 1419, 1421 (6th Cir. 1994), citing United States v. Bell, 988 F.2d 247, 250 (1st Cir. 1993). “As most commonly defined, the doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” Arizona v. California, 460 U.S. 605, 618 (1983), citing 1B J. MOORE & T. CURRIER, MOORE’S FEDERAL PRACTICE ¶0.404 (2nd ed. 1980); Patterson v. Haskins, 470 F.3d 645, 660-61 (6th Cir. 2006); United States v. City of Detroit, 401 F.3d 448, 452 (6th Cir. 2005), citing Moored, 38 F.3d at 1421. “If it is important for courts to treat like matters alike in different cases, it is indispensable that they ‘treat the same litigants in the same case the same way throughout the same dispute.’” United States v. Charles, 843 F.3d 1142, 1145 (6th Cir. 2016) (Sutton, J.), quoting BRYAN A. GARNER, ET AL. THE LAW OF JUDICIAL PRECEDENT 441 (2016). In deciding the motion for preliminary injunction of Warren Henness, the Court analyzed how law of the case doctrine should apply here. It noted that the Sixth Circuit had approved a 7 Case: 2:11-cv-01016-EAS-MRM Doc #: 3255 Filed: 09/10/20 Page: 8 of 9 PAGEID #: 156842 slightly different standard for law of the case in consolidated cases and stated the approach it would follow: Based on these discussions in the circuit court, this Court concludes it is not bound by the law of the case doctrine to decide issues in Warren Henness’s § 1983 case as it decided the same issues in the Phillips, Otte, Tibbetts, and Campbell cases. On the other hand, applying general principles of precedent, Henness’s § 1983 case is very similar to those prior cases, about as similar as any five such cases could be: all are being decided by the same Court, all are parties to the same or very similar omnibus complaints, all attack the same method of execution and seek to enjoin the same state officials, all have been litigated by the same institutional litigators within two years of one another, subject to review by the same appellate court. Very few distinguishing facts among the Plaintiffs are relevant to their § 1983 cases. Although the Court is not bound by law of the case doctrine to decide issues the same way, it would destroy the economy of consolidation as well as raise serious equal justice considerations to decide the issues differently. Like cases should be decided alike, and Henness’s case is very like those of former Plaintiffs Phillips, Otte, Tibbetts, and Campbell. Therefore, prior rulings in this consolidated case, including those made by Judge Frost, will be treated as very persuasive precedent, but not binding under the law of the case doctrine. Prior rulings in the case, just like precedent from other courts, will be analyzed and applied based on the context in which they were made and therefore applied with appropriate nuance, and not like proof-texts. In re Ohio Execution Protocol Litig. (Henness) (“Henness I”), 2019 U.S. Dist. LEXIS 8200, at * 33-34 (S.D. Ohio, Jan. 14, 2019) (Merz, Mag. J) (emphasis in original), citing GMAC Mortg., LLC v. McKeever, 651 F. App’x 332, 338-39 (6th Cir. 2016), rev’d on other grounds at In re: Ohio Execution Protocol Litig. (Henness v. DeWine), 937 F.3d 759 (6th Cir. 2019), substituted decision at Henness v. DeWine, 946 F.3d 287 (6th Cir. 2019) (“Henness II”), petition for cert. filed, Case No. 20-3243 (Aug. 3, 2020, copy at ECF No. 3159). This portion of the Henness I decision received no criticism from the United States Court of Appeals for the Sixth Circuit in Henness II, 8 Case: 2:11-cv-01016-EAS-MRM Doc #: 3255 Filed: 09/10/20 Page: 9 of 9 PAGEID #: 156843 and will continue to be followed here. Although application of the law of the case doctrine in prisoner cases has been much disputed, the Sixth Circuit has just now applied it to deny a Certificate of Appealability (“COA”) on a claim in a capital case because it had previously denied a COA on the same claim. Cunningham v. Shoop, Nos. 11-3005, 20-3429, 2020 U.S. App. LEXIS 26947, at *4 (6th Cir. Aug. 24, 2020), citing Dillingham v. Jenkins, No. 17-3813, 2017 WL 5438882, at *1 (6th Cir. Nov. 8, 2017). The relationship between claims made by Hand in the 4AOC which have been dismissed under Fed.R.Civ.P. 12(b)(6) and parallel claims made in the ISC is even closer than the parallels between Warren Henness’s claims and those made by former Plaintiffs Ron Phillips, Gary Otte, Tibbetts, and Campbell. On the basis of the prior decision, it is ORDERED that Hand’s Second through Tenth, Twelfth, Fourteenth, Thirtieth and Thirty-First Causes of Action be dismissed. September 10, 2020. s/ Michael R. Merz United States Magistrate Judge 9
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