Lead Opinion
GILMAN, J. (pp. 424-31), delivered a separate dissenting opinion.
OPINION
Richard Cooey, an Ohio inmate under sentence of death, filed this action against Ted Strickland, Governor, Terry J. Collins, Director, and E.C. Yoorhies, 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 opposed to a precursor procedure — is 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, when execution is imminent or
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,
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,
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 ap-pealability 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, pancu-rionium 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 he is still conscious would amount to cruel and unusual punishment. They also alleged that the person
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.
We later granted a stay pending the Supreme Court’s decision in Hill v. McDonough, - U.S. -,
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,
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,
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,
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. -, -,
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,
Defendants have the burden of demonstrating that the statutory period had run before Cooey filed his action. Griffin v. Rogers,
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 available as a means of execution in Ohio in 1993. In 2001, it became Ohio’s sole method of execution.
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 Havi-land disclosing the chemical mixture and equipment to be used.
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, ie., when the plaintiff has exhausted all of his state and federal avenues of relief.” This occurs “when the United States Supreme Court
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,
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,
“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-,
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,
Of course, “[fjederal 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,
*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 ha-beas relief on the basis of “trial error”).
Id. at 554-55,
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,
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,
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,
Thus, since the “date” the lethal injection protocol is imposed is infeasible,
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,
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 first-instance 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 vein collapsed, and Clark repeatedly ad
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 method-of-execution claim because it used an improper test for establishing the accrual date for § 1983 method-of-injection 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.
Notes
. 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.
. 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
. 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.
. 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 milliequi-valents 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.
. Neville cites White v. Johnson,
. Direct review of conviction includes review by the United States Supreme Court. Bell v. Maryland,
. 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
Dissenting Opinion
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 the point when the inmate’s execution is imminent and all state and federal remedies, including post-conviction proceedings, have been exhausted, — “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:
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,
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 § 1988 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. “[Wjhile justice delayed may be justice denied, prompt injustice is not the answer.” Haitian Refugee Ctr. v. Smith,
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,
The majority faults Cooey for fading 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 injection the sole method of execution. But prior to the Supreme Court’s decision in Nelson v. Campbell,
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,
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-of-limitations 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,
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, Cleveland Plain Dealer,
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 drags.
In a letter dated May 30, 2002, Vincent Lagaña, ODRC Staff Counsel, responded to an unidentified recipient’s request for additional information about the lethal-injection protocol by noting that “informa-.
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 “certifyf] 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,
Even having read the letters, I can see how a reasonable person would still be uninformed as to Ohio’s death-penalty 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 bringing a § 1983 action chai-
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) § 1988 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,
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.-,
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 limitations would rarely, if ever, be an issue in these § 1983 cases. The crucial issue for federal courts to de
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 Gooey (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-of-execution 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.
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.