Twо death-row inmates, Raymond Tib-betts and Alva Campbell, moved to enjoin their pending executions, claiming that Ohio’s midazolam-based, three-drug execution protocol presents a constitutionally unacceptable risk of pain and suffering. The district court considered the proffered evidence, determined that the inmates had not met their burden, and denied the requested injunctions. We AFFIRM.
To obtain a preliminary injunction, a plaintiff must meet a four-factor test, Glossip v. Gross, — U.S. —,
Because this appeal arises from the Fears remand, we can begin by recognizing that the Fears plaintiffs (which included Tibbetts but not Campbell) had “shown some risk that Ohio’s execution protocol may cause some degree of pain, at least in some people,” though Fears noted that “some risk of pain is inherent in any method of execution^] no matter how humane[,] ■[a]nd the Constitution does not guarantee a pain-free execution.” Fears,
Facing this new motion after remand, the district court considered whether Tib-betts and Campbell had “added sufficient evidence” to reach the level of certainty of “sure or very likely,” which the Fears plaintiffs had failed to meet. See In re Ohio Execution Protocol (“Campbell”), No. 2:11-CV-1016,
In this appeal, Tibbetts and Campbell' claim that the “serious pain and needless suffering” at issue in the Fears standard includes psychological pain and suffering, but that the district court “permit[ted] relief only in cases of sеvere physical pain” and “refused to consider the significant evidence of mental and psychological suffering.” To be clear, in that part of its opinion the district court was considering psychological- pain unaccompanied . by physical pain, and explained:
Psychological pain or mental suffering is a likely result of being sentenced to death and anticipating the execution, but that experience of psychological suffering could not' by itself make a method of execution unconstitutional. Presumably 'all death row inmates suffer that pain, but the. death penalty is not per se unconstitutional. Unless accompanied by serious physical pain, the mental suffering associated with being under a sentence of death is not material to the Eighth Amendment inquiry under Baze and Glоssip.[1 ] It is not clear to this Court how a plaintiff could segregate anxiety from anticipated execution in general from anxiety about execution by a particular method. In any event, no evidence was offeréd to support a claim that either Campbell or Tibbetts suffers particular psychological pain associated with the Execution Protocol.
Campbell,
Recall that Tibbetts and Campbell must prove that Ohio’s protocol “presents a risk that is sure or very likely to cause-serious pain and needless suffering.” Fears,
Tibbetts and Campbell’s claim that the possible pain is far more (and more serious) than previously anticipated is immaterial, given that we had already accepted that the physical pain alone was sufficiently serious. That they anticipate more pain does not mean that they are “sure or very likely to be conscious,” such that they would even feel that pain. The question
Tibbetts and Campbell contend that they can -prove this level of certainty (“that an inmate who receives a 500-milligram dose of midazolam is sure or very likely to bе conscious enough”) by showing “uncertainty,” and argue: “Of course, to show .that a method is ‘very likely
Regardless, Tibbetts and Campbell argue that they did, in fact, prove their claim and the district court was mistaken in finding that they did not. We review such findings of fact for clear error, by which we may reverse only if the evidence, taken from the entire record, produces a “definite and firm conviction” that the district court was mistaken. Fears,
Tibbetts and Campbell’s theory is that “if an inmate given only midazolam ... cаn feel any pain, then they will feel all the pain from the second and third drugs, which aré known to be excruciatingly painful and deeply psychologically traumatic.” Relying on this theory, they argue that they proved three key facts: (1) that “mi-dazolam[] is incapable of rendering an inmate impervious to this pain—or to ameliorate it or diminish it even slightly”; (2) that “even if midazolam could induce such a state, the hastе with which Ohio administers the paralytic [second drug] .,. [makes it] impossible for midazolam to have reached full effectiveness before the painful second and third drugs are administered, regardless of the massive dose [of midazolam] that Ohio uses”; and (3) that the empirical evidence shows that inmates are feeling pain in spite of the midazolam, as proven by witness accounts of Gary Otte’s struggle to. breаthe (“air hunger”) .and tears, and Torrey- McNabb’s body movements, such as raising -his arm, contorting his face, and turning his -head.
With regard to the third point, the district court did not agree that these involuntary bodily responses (i.e., air hunger, tears, and movement) necessarily proved that the inmates were feeling serious pain in spite of the midazolam. Campbell,
It is of course a commonplace of human experience that people cry when they are in physical pain, but they аlso cry for many other reasons. Plaintiffs were careful to elicit testimony from eyewitnesses that they did not see Mr. Otte cry during his last statement, hymn, and prayer. But there was no scientific evidence to tie the tear production to the experience of severe pain.
Campbell,
This leads back to Tibbetts and Campbell’s first asserted fact—that midazolam does not protect against the serious pain of the second and third drugs. This was already well-worn ground as we had rejected this claim based on the evidence produced in Fears,
As mentioned, Tibbetts and Campbell’s experts opined “that midazolam is not capable of producing General Anesthesia, [which is] defined as that state of human consciousness in which the subject is unconscious, unaware, and insensate to pain,” meaning that an inmate given that drug is not completely insensate to pain. Id. But, as the court explained later, “the fact that [an inmate] was not insensate to pain does not prove he was experiencing pain or what level of pain he was experiencing.” Id. at *16. More importantly, “General Anesthesia, particularly in the sense of rendering a subject completely insensate to pain, is not constitutionally required.” Id. at *18. These experts offered no new evidence to overcome the prior rejections of this approach.
Tibbetts and Campbell’s expert pharmacologist testified that midazolam has no analgesic (painkilling) properties. Id. at *17. But this expert acknowledged that his opinion disagreed with that оf the State’s expert and “also acknowledged on cross-examination that there are no clinical studies of the effects of midazolam in doses anywhere near the 500 mg Ohio uses; that dose is so far above any clinical dose ever used that experimentation with such doses would be unethical.” Id. at *12. The court
[T]he dose of midazolam in use here, a multiple of the highest recommended сlinical dose, appears to be sufficient to suppress consciousness to the extent that an inmate will not respond to the consciousness checks used by emergency medical technicians and used by Ohio, most recently on Mr. Otte. There is literature to which [the expert pharmacologist] testified that shows a rank ordering of responses to such consciousness checks (i.e., somе will elicit responses that others would not elicit). Ultimately, however, the presented science does not prove conclusively the inference Plaintiffs’ experts drew that it was certain or very likely Mr. Otte experienced serious or severe pain.
Id. at *17 (footnote omitted). To summarize: because Tibbetts and Campbell could produce no scientific evidence about the unseеn effects of a 500-mg dose of midazo-lam, they could only speculate but could not prove that its use is sure or very likely to fail to prevent serious pain, and hence, they could not prove that its use presents a risk that the protocol as a whole is sure or very likely to cause serious pain.
Finally, Tibbetts and Campbell insist that even if the 500-mg dose of midazo-lam would render the inmate insensate tо serious pain, Ohio administers the painful second drug before the midazolam has sufficient time to take effect. The court explained that, while the scientific documentation reports that midazolam takes effect within minutes, regardless of dose,. id. at *13, the Ohio protocol does not operate on strict time frame; it operates on “consciousness checks.” The court then citеd four prior iterations of this case in which it had rejected plaintiffs’ claims that the consciousness checks were inadequate, and repeated that “attempting to regulate those checks would involve the Court in micromanagement of the execution process.” Id. at *18. We agree with this determination and find that, as with the prior claim, Tibbetts.and Campbell’s inability to produce scientific evidence about the unseen effects of a 500-mg dose of midazolam leave them unable to prove that the execution protocol as a whole is sure or very likely to cause -serious pain.
Tibbetts and Campbell have not shown that the district court’s findings were mistaken, let alone proven that the district court committed clear error in deciding that they had failed to satisfy the first part of thе test.
Even if Tibbetts and Campbell could prevail on the first part of the test by proving the risk of serious pain and needless suffering, they must still satisfy the second part, which is to identify an available, feasible, and readily implemented alternative that will significantly reduce that risk. Glossip,
Fatal to this alternative is that it contradicts their argument with respect to the first part of the Glossip and Fears test. This proposed alternative would be viable only if, in fact, midazolam actually protects the inmate from feeling the serious pain caused by the potassium chloride. More to the point, this alternative would be viable only if Tibbetts and Campbell are wrong about their claims that midazolam does rnot work. If midazolam works, then
But if Tibbetts and Campbell werе correct' that midazolam would not protect them from feeling serious pain—as would have been necessary for them to prevail on the first part of the test—then this “alternative” method of execution would do nothing to reduce the risk of serious.pain and needless suffering that was established in the first part, but would insteqd ensure it. This led the district court to comment that “[i]t is difficult to credit this proposal as bеing in good faith.” Campbell,
Beyond this conceptual problem with this proposal, the district court actually rejected it because Tibbetts and Campbell had failed to support it, explaining, for example, that: •'
The Court had expected a good deal morе testimony on the use of monitoring devices and particularly on interpretation of their output by persons not members -of the medical professions. Although [their experts] testified about the standard, indeed professionally required, use of such devices in a clinical setting, neither testified that the results of using those devices could be readily interpreted by an EMT or anyone else not prohibited ethically from participating in executions.
Id. at *22 (footnote omitted). Tibbetts and Campbell argue here, with some citation to select testimony, that the proposed monitoring devices are not difficult to use, that even a person with no medical experience could be taught easily to operate and read them, and that they often involve little more than reading a' number from a displаy.
But Tibbetts and Campbell have not produced evidence to show, at a minimum, that non-medical personnel could necessarily be trained to: interpret and apply the cumulative readings .from all of those devices, including inconsistent or contradictory readings; troubleshoot or adjust for varying conditions or circumstances; apply the readings in the execution setting; or determine from all of this that the inmate is sufficiently unconscious that he would not feel serious pain or needless suffering, even if he would .feel some (constitutionally acceptable) pain.
Tibbetts and Campbell bore the burden of proof on this issue and they have produced nothing on appeal to convince us that that the district court was mistaken, let alone prove to us that the district court committed clеar error in deciding that they failed to satisfy this second part of the test.
For all of the foregoing reasons, we AFFIRM the judgment of the district court.
Notes
. Baze v. Rees,
. Ohio’s "eyewitnesses differed in their observations of Mr. Otte’s breathing,” id. at *15, and "ODRC staff who were present saw one tear or maybe only a ’wetness’ or ’moisture’ at the corner of the left eye.” id. at *16.
. The district court also addressed the fact that Otte’s struggle to breathe mаy have been due to or affected by his morbid obesity, which would have warranted a medical accommodation if it had been requested. Such an accommodation (a wedge-shaped pillow to elevate the body) has been offered to Campbell, thereby disproving any claim that Ohio’s protocol includes a prohibition on or refusal to make reasonable accommodations.