REPORT AND RECOMMENDATIONS

MICHAEL R. MERZ, Magistrate Judge.

This method-of-execution case, brought pursuant to 42 U.S.C. § 1983, is before the Court on Defendants' Motion to Dismiss Plaintiffs' Fourth Amended Omnibus Complaint ("Motion," ECF No. 1379). Plaintiffs oppose the Motion ("Memo in Opp.," ECF No. 1406) and Defendants have filed a Reply in Support ("Reply," ECF No. 1408). The moving Defendants are Ohio Governor John Kasich; Gary C. Mohr, Director of the Ohio Department of Rehabilitation and Correction (ODRC); Ronald Erdos, Donald Morgan, Stephen Gray, Edwin Voorhies, Richard Theodore, Charlotte Jenkins, and John Coleman, employees of the ODRC; and un-named and anonymous "execution team members (the "Moving" or "State" Defendants).

Dismissal is sought (1) under Fed. R. Civ. P. 12(b)(1) for lack of jurisdiction of the subject matter or based on sovereign immunity under the Eleventh Amendment, or (2) under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted or on the basis of the affirmative defense of qualified immunity (Motion, ECF No. 1379, PageID 51913). Because qualified immunity applies only to claims against state actor Defendants in their individual capacities and no such claims are at issue in the instant Motion, there is no discussion of qualified immunity in what follows.

Motions to dismiss involuntarily are dispositive pre-trial motions on which an assigned Magistrate Judge must render a report and recommendations for disposition. Plaintiffs Raymond Tibbetts and Robert Van Hook are excluded from this Report because they, and the State Defendants with respect to them, have unanimously consented to plenary magistrate jurisdiction under 28 U.S.C. § 636(c)(ECF Nos. 732, 951, respectively) and Chief Judge Sargus has referred their cases on that basis (ECF Nos. 734,). The Magistrate Judge will decide separately the Motion as it relates to them. Plaintiff Alva Campbell, Jr., is excluded from this Report because he has filed a superseding Fifth Amended Complaint (ECF No. 1407) which is subject to a separate motion to dismiss (ECF No. 1409) and he has also consented to plenary Magistrate Judge jurisdiction (ECF No. 938).

Ordinarily, a motion under Fed. R. Civ. P. 12 must be made before an answer is filed. Nevertheless, a new motion to dismiss is proper in response to a new amended complaint. Plaintiffs do not question the appropriateness of Defendant's filing a motion to dismiss at this stage of the case.

Generally Applicable Law

Subject Matter Jurisdiction (Fed. R. Civ. P. 12(b)(1))

Fed. R. Civ. P. 12(b)(1) authorizes motions to dismiss for lack of subject matter jurisdiction. Because federal courts are courts of limited jurisdiction, the burden of persuasion on a Rule 12(b)(1) motion is on the party asserting jurisdiction. Thomson v. Gaskill, 315 U.S. 442 (1942); Moir v. Greater Cleveland Regional Transit Authority, 895 F.2d 266 (6th Cir. 1990); 5A Wright and Miller, Federal Practice and Procedure, Civil 2d §1350 (1990).

Plaintiffs assert Defendants are raising a "facial" as opposed to a "factual" subject matter jurisdiction claim (Memo in Opp., ECF No. 1406, PageID 52316). Defendants do not disagree in their Reply and the Magistrate Judge agrees with Plaintiffs on this point.1

The Supreme Court has held that district courts lack subject matter jurisdiction of claims that are "so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as to not involve a federal controversy." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998), quoting Oneida Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661, 666 (1974). At the same place in Steel Co., however, the Court noted that "the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction, i.e., the courts' statutory or constitutional power to adjudicate the case." Id. citing Wright and Miller, supra. Given that the Fourth Amended Complaint purports to plead claims for violation of federal constitutional rights and arising under 42 U.S.C. § 1983, this Court concludes it has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343.

Jurisdiction under either of those statutes can be defeated by the bar of the Eleventh Amendment to the United States Constitution which provides:

The Amendment has been construed to bar suits against a State by its own citizens. Papasan v. Allain, 478 U.S. 265, 276 (1986); Hans v. Louisiana, 134 U.S. 1 (1890); Edelman v. Jordan, 415 U.S. 651 (1974); Florida Dep't. of State v. Treasure Salvors, Inc., 458 U.S. 670 (1982).

The Eleventh Amendment does not bar an action for injunctive relief against a state officer for violations of the United States Constitution. Ex parte Young, 209 U.S. 123 (1908); Cory v. White, 457 U.S. 85 (1982); Thomson v. Harmony, 65 F.3d 1314, 1320 (6th Cir. 1995). However, the Amendment does bar an action to enjoin state officials from violating state law. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984); Ernst v. Rising, 427 F.3d 351 (6th Cir. 2005)(en banc); Turker v. Ohio Dep't of Rehab. & Corr., 157 F.3d 453 (6th Cir. 1998); In re: Ohio Execution Protocol Litig. (Otte), 2017 U.S. App. LEXIS 17436 (6th Cir. Sept. 7, 2017), affirming In re: Ohio Execution Protocol Litig. (Tibbetts & Otte), 2017 U.S. Dist. LEXIS 107468 (S.D. Ohio July 12, 2017)(Merz, M.J.).

Sovereign immunity bars a plaintiff from using state law to enjoin state officials from carrying out their official responsibilities even when the officials are sued in their individual capacities. In re: Ohio Execution Protocol Litig. (Otte), 2017 U.S. App. LEXIS 17436 (6th Cir. Sept. 7, 2017), citing Williams v. Kentucky, 24 F.3d 1526, 1531, 1543 (6th Cir. 1994).

The Eleventh Amendment is a jurisdictional bar which federal courts are required to raise sua sponte if the parties fail to do so. Fairport Int'l Exploration, Inc., v. Shipwrecked Vessel Known as the Captain Lawrence, 105 F.3d 1078, 1082 (6th Cir. 1997); Wilson-Jones v. Caviness, 99 F.3d 203 (6th Cir. 1996).

Claims Upon Which Relief May Be Granted (Fed. R. Civ. P. 12(b)(6))

"The purpose of a motion under Rule 12(b)(6) is to test the formal sufficiency of the statement of the claim for relief; it is not a procedure for resolving a contest about the facts or merits of the case." Wright & Miller, FEDERAL PRACTICE AND PROCEDURE: Civil 2d §1356 at 294 (1990); see also Gex v. Toys "R" Us, 2007 U.S. Dist. LEXIS 73495, *3-5 (S.D. Ohio, Oct. 2, 2007); Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993), citing Nishiyama v. Dickson County, Tennessee, 814 F.2d 277, 279 (6th Cir. 1987). Stated differently, a motion to dismiss under Fed.R.Civ.P. 12(b)(6) is designed to test only the sufficiency of the complaint. Riverview Health Institute LLC v. Medical Mutual of Ohio, 601 F.3d 505, 512 (6th Cir. 2010).

The test for dismissal under Fed. R. Civ. P. 12(b)(6) was significantly restated by the Supreme Court in 2007:

Bell Atl. Corp. v. Twombly, 550 U.S.544, 555 (2007).

Twombly, 550 U.S. at 558 (overruling Conley v. Gibson, 355 U.S. 41, 45-46 (1957), and specifically disapproving of the proposition from Conley that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief"). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its fact,'" Doe v. Miami University, ___ F.3d ___, 2018 U.S. App. LEXIS 3075, *12-13 (6th Cir. Feb. 9, 2018), quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), in turn quoting Twombly, 550 U.S. at 570.

The Impact of Precedent

Defendants' Motion relies heavily on precedent of various types (See, e.g., Motion, ECF No. 1379, Table of Contents, PageID 51915-17). In response, Plaintiffs make the strong and broad claim "[h]owever defined and applied by the Court and Defendants, the doctrine of stare decisis provides no basis to dismiss any of Plaintiff's [sic] claims." (Memo in Opp., ECF No. 1406, PageID 52310.) In support of this broad claim, Plaintiffs recite various maxims from the law of precedent which must each be evaluated.

First of all, Plaintiffs assert one District Judge's decision is not binding on any other District Judge, even in the same district. The Magistrate Judge agrees. See Chinn v. Jenkins, 2018 U.S. Dist. LEXIS 8548 (S.D. Ohio Jan. 19, 2018), citing, inter alia, Threadgill v. Armstrong World Industries, Inc., 928 F.2d 1366, 1371 (3rd Cir. 1991); Colby v. J.C. Penney Co., Inc., 811 F.2d 1119, 1124 (7th Cir. 1987); United States v. Articles of Drug Consisting of 203 Paper Bags, 818 F.2d 569, 572 (7th Cir. 1987); Starbuck v. City and County of San Francisco, 556 F.2d 450, 457 n.13 (9th Cir. 1977 (same). An exception would be where a judgment bars relitigation of a claim or issue under the doctrines of res judicata or collateral estoppel.

Second, Plaintiffs assert that the district courts in this circuit are bound by the published decisions of the Sixth Circuit Court of Appeals. The Magistrate Judge also agrees with this proposition of law. A prior decision of the Sixth Circuit remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or the Sixth Circuit en banc overrules the prior decision. United States v. Elbe, 774 F.3d 885, 891 (6th Cir. 2014); Darrah v. City of Oak Park, 255 F.3d 301, 309 (6th Cir. 2001); Salmi v. Secretary of HHS, 774 F.2d 685, 689 (6th Cir. 1985); accord 6th Cir. R. 206(c). A panel of the Sixth Circuit may not overrule the published decision of another panel. Hinchman v. Moore, 312 F.3d 198, 203 (6th Cir. 2002); Neuman v. Rivers, 125 F.3d 315 (6th Cir. 1997).

However, what is binding in a prior published circuit court decision is the holding of the case, and not dicta included in the opinion. A panel of the Sixth Circuit is not bound by dicta in a previously published panel opinion. Re/Max Int'l, Inc. v. Realty One, Inc., 271 F.3d 633, 643 (6th Cir. 2001); United States v. Burroughs, 5 F.3d 192, 194 (6th Cir. 1993). "Dicta is the `[o]pinion[] of a judge which do[es] not embody the resolution or determination of the specific case before the court.'" Hinchman v. Moore, 312 F.3d 198 (6th Cir. 2002)(quoting Black's Law Dictionary 454 (6th ed. 1990).

Cohens v. Virginia, 19 U.S. 264, 399-400 (1821)(Marshall, C. J.). See also United States v. Rubin, 609 F.2d 51, 69 n.2 (2nd Cir. 1979) (Friendly, J., concurring).

The doctrine of precedent or stare decisis, however, is much broader than the question of which prior decisions by which courts are binding on subsequent courts. Part of the doctrine of precedent is the law of the case. Under that doctrine, findings made at one point in the 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 [of law of the case] 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 Moore's Federal Practice ¶0.404 (1982); 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). "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).

Law of the case is persuasive, not binding. "Law of the case directs a court's discretion, it does not limit the tribunal's power." Id., citing Southern R. Co. v. Clift, 260 U.S. 316, 319 (1922); Messenger v. Anderson, 225 U.S. 436 (1912); see also Gillig v. Advanced Cardiovascular Sys., Inc., 67 F.3d 586, 589-90 (6th Cir. 1995). "While the `law of the case' doctrine is not an inexorable command, a decision of a legal issue establishes the `law of the case' and must be followed in all subsequent proceedings in the same case in the trial court or on a later appeal in the appellate court, unless the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision of the law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice." White v. Murtha, 377 F.2d 428 (5th Cir. 1967), quoted approvingly in Association of Frigidaire Model Makers v. General Motors Corp., 51 F.3d 271 (6th Cir. 1995). The purpose of the doctrine is twofold: (1) to prevent the continued litigation of settled issues; and (2) to assure compliance by inferior courts with the decisions of superior courts. United States v. Todd, 920 F.2d 399 (6th Cir. 1990), citing Moore's Federal Practice.

Howe v. City of Akron, 801 F.3d 718, 739-740 (6th Cir. 2015).

The law of the case doctrine is not an appropriate basis for denying relief when the statement of the law in an appellate opinion is both dictum and in error. Landrum v. Anderson, 813 F.3d 330 n.1 (6th Cir. 2016), citing United States v. McMurray, 653 F.3d 367 (6th Cir. 2011).

In sum, only the holdings of published Sixth Circuit decisions or the unpublished mandates of that Court in this case are binding on this Court. However, judges have an ethical duty to decide like cases alike which is strong rights-based support for stare decisis and a compelling judicial economy rationale for not re-deciding every issue de novo.

Analysis

First Cause of Action: Eighth and Fourteenth Amendment Violations

With regard to this claim for relief, the Fourth Amended Complaint reads:

(ECF No. 1252, PageID 45721-22.) This Report accordingly does not address the First Cause of Action.

Second Cause of Action: Fourteenth Amendment Due Process Violations

In their Second Cause of Action, Plaintiffs assert they have state-created life, liberty, and property interests protected from deprivation without due process by the Due Process Clause of the Fourteenth Amendment (Fourth Amended Complaint, ECF No. 1252, PageID 45722-28, ¶¶ 1270-94). Specifically, Plaintiffs assert that Ohio Revised Code § 2949.22(A) creates their right to a quick and painless execution and ODRC Policy 01-COM-11 (the "Execution Protocol") creates their right to a humane and dignified execution, id., see also Memo in Opp. ECF No. 1406, PageID 52334.

Defendants assert the Second Cause should be dismissed on the basis of precedent. (Motion, ECF No. 1379, PageID 51932, citing In re Ohio Execution Protocol Litig. (Wiles), 868 F.Supp.2d 625 (S.D. Ohio 2012)(Frost, D.J.); In re: Ohio Execution Protocol Litig. (Tibbetts & Otte), 2017 U.S.Dist. LEXIS 107468 (S.D. Ohio, July 12, 2017)(Merz, M.J.); In re: Ohio Execution Protocol Litig. (Campbell), 2017 WL 3479589 (Aug. 14, 2017)(Merz, M.J.); and Cooey v. Strickland (Henderson), 2010 U.S. Dist. LEXIS 81841 (S.D. Ohio Aug. 12, 2010)(Frost D.J.).

In his Henderson decision, Judge Frost relied in part on Cooey (Biros) v. Strickland, 589 F.3d 210, 234 (6th Cir. 2009). Plaintiffs acknowledge that that case rejected a claim by death row inmate Biros that Ohio Revised Code § 2949.22(A) created a right to a quick and painless execution, but argue that "Cooey (Biros) and its progeny were wrongly decided. . ." (Memo in Opp., ECF No. 1406, PageID 52335). The Sixth Circuit considered this claim on appeal from a decision of Judge Frost denying Biros a stay of execution. As to this particular claim, Judge Gibbons wrote:

589 F.3d at 234.

Plaintiffs correctly argue that States can create liberty and property interests which are then protected from deprivation without due process by the Fourteenth Amendment, as enforceable through 42 U.S.C. § 1983 (Memo in Opp. ECF No. 1406, PageID 52336, citing Board of Regents v. Roth, 408 U.S. 564 (1972). Plaintiffs also correctly read Cooey (Biros) as concluding that Ohio Revised Code § 2949.22(A) does not create the right Biros asserted because Ohio law does not create a private cause of action for enforcing that right. Id. at PageID 52337.

Plaintiffs argue the Cooey (Biros) court wrongly conflated creation of rights with creation of private causes of action to enforce rights. Id., relying on Neal v. Dist. Of Columbia, 131 F.3d 172, 174-75 (D.C. Cir. 1997). Plaintiffs also argue that the mandatory duty-creating language of Ohio Revised Code § 2949.22(A) must create a correlative right, relying on the dissenting opinion of Ohio Chief Justice Brown in Scott v. Houk, 127 Ohio St.3d 317, 325 n.1(2010), who in turn relied on Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L. J. 16, 33 (1913). Whatever the precise reasoning behind Biros, it is clear that the holding is that Ohio Revised Code § 2949.22(A) does not create a right in inmates who are to be executed. And whatever the attractiveness of Professor Hohfeld's analysis, Chief Justice Brown wrote in dissent.

The Cooey (Biros) court did not expressly consider whether the Execution Protocol created enforceable rights, and Plaintiffs argue separately that it does, largely reprising the argument as to the statute (Memo in Opp., ECF No. 1406, PageID 52430-45). Plaintiffs particularly critique the manner in which this Court analyzed their assertion that the Execution Protocol creates property rights. Id. at PageID 42432, criticizing the analysis in In re Ohio Execution Protocol Litig. (Tibbetts & Otte), 1027 U.S. Dist. LEXIS 107468 (S.D. Ohio July 12, 2017), where the Court wrote:

Id. at *36-37.

Plaintiffs respond that they have

(Memo in Opp., ECF No. 1406, PageID 52342.)

In Tibbetts & Otte, this Court characterized the claimed right as one to a "humane and dignified execution" and questioned how that could be a property right, but Plaintiffs attempt to cover that conceptual gap by throwing in "life and liberty" interests as well. Id. They also assert that Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005), is not to the contrary.

The Magistrate Judge believes Plaintiffs read Castle Rock too narrowly. There the plaintiff claimed a property interest in having the police arrest her estranged husband who had taken her children in violation of a protection order. Because police typically have discretion in whether or not to make an arrest, even with proof of probable cause, the Court held plaintiff's interest in the arrest did not rise to the level of an entitlement because Colorado law did not make enforcement mandatory. The Court also questioned how the plaintiff's interest in question could be a property interest since it had no ascertainable monetary value.

The same logic applies here. A "humane and dignified" execution, although undoubtedly valuable, has no ascertainable monetary value. More importantly, the mandatory language in the Execution Protocol on which Plaintiffs rely does not mandate that an inmate be given a humane and dignified execution. Rather, it provides "[a]ll execution processes shall be performed in a professional, humane, sensitive, and dignified manner." (Execution Protocol, ECF No. 711-1, §V, PageID 21453). That language does not create a life, liberty, or property interest under Ohio law that is protectable under 42 U.S.C. § 1983.

The undersigned dismissed Plaintiff Alva Campbell's parallel claims under Ohio Revised Code § 2949.22(A) and the Execution Protocol "on the authority of Cooey (Biros) and stare decisis," noting that he had previously dismissed parallel claims of Plaintiffs Raymond Tibbetts and Gary Otte. Campbell, supra, at *5. Having reconsidered the claims in the Second Cause of Action in light of Plaintiffs' argument, the Magistrate Judge recommends they be dismissed with prejudice on the authority of Cooey (Biros) and the rationale offered in Campbell and Tibbetts & Otte. The argument made by Plaintiffs does not persuade the Magistrate Judge that those decisions were in error.

Third Cause of Action: Violations of Rights of Access

In their Third Cause of Action, Plaintiffs complain of limitations on their ability to consult with counsel and counsel's ability to communicate with the courts or other relevant authorities, particularly the Governor, during the course of an execution (Fourth Amended Complaint, ECF No. 1252, PageID 45728-35, ¶¶ 1295-1328).

Defendants argue for dismissal on the basis of Judge Frost's prior decision in this case, Cooey v. Strickland, 2011 U.S. Dist. LEXIS 8336 (S.D. Ohio Jan. 28, 2011). Examination of that decision on a portion of Defendants' motion for summary judgment shows Judge Frost did not find that Plaintiffs had not stated a constitutional claim, but that

Id. at *39. The record now is different from the record before Judge Frost in January 2011. During the preliminary injunction hearing in October 2017 the Court heard evidence about difficulties of access during the Otte execution. ODRC made some changes in advance of the interrupted execution of Alva Campbell which have not yet been the subject of testimony. On the basis of the current record, the Magistrate Judge cannot say that the Third Cause of Action fails to state a claim upon which relief can be granted. The Motion should be denied as to the Third Cause of Action.

Fourth Cause of Action: Equal Protection Violations

In their Fourth Cause of Action, Plaintiffs allege that they have been or will be treated differently from other similarly situated individuals in violation of the Equal Protection Clause of the Fourteenth Amendment (Fourth Amended Complaint, ECF No. 1252, PageID 45735-78, ¶¶ 1329-1495). This Cause of Action comprises eighteen sub-claims:

A. Violations of Equal Protection by Burdening Fundamental Rights

B. Equal Protection—"Class of One" Disparate Treatment

(ECF No. 1252, passim.)

The parties have extensively briefed this portion of the Motion (Motion, ECF No. 1379, PageID 51934-49; Memo in Opp., ECF No. 1406, PageID 52350-97; Reply, ECF No. 53036-37). Having considered that briefing, the Magistrate Judge believes the following analysis correctly states the law applicable to this Cause of Action.

The Equal Protection Standard

The Equal Protection Clause of the Fourteenth Amendment commands that no State shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. Amend. XIV, § 1. The Supreme Court has stated that this language "embodies the general rule that States must treat like cases alike but may treat unlike cases accordingly." Vacco v. Quill, 521 U.S. 793, 799 (1997). The States cannot make distinctions which either burden a fundamental right, target a suspect class, or intentionally treat one person differently from others similarly situated without any rational basis for the difference. Id.; Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam); Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir. 2005). When the disparate treatment burdens a fundamental right, strict scrutiny applies. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973); Bible Believers v. Wayne County, 805 F.3d 228, 256 (6th Cir. 2015)(en banc); Miller v. City of Cincinnati, 622 F.3d 524, 538 (6th Cir. 2010).

Burden on Fundamental Rights

Plaintiffs' first ten Equal Protection sub-claims at issue here assert that the State Defendants impose a burden on their fundamental rights when they deviate from the Execution Protocol (Sub-claim A.1), deviate from Ohio's execution statute (Sub-claim A.2), deviate from the Ohio Constitution (Sub-claim A.3), fail to follow federal and Ohio laws related to drugs (Sub-claim A.4), deviate from Ohio's definition of death law (Sub-claim A.5), deviate from federal and Ohio laws prohibiting experimentation on non-consenting humans (Sub-claim A.6), deny necessary medical and resuscitative care to inmates being executed (Sub-claim A.7); use midazolam (Sub-claim A.8), use compounded execution drugs (Sub-claim A.9), and removed required drug concentrations from the Execution Protocol (Sub-claim A.10).

The fundamental rights protected from state-imposed burdening by the Equal Protection Clause are those rights from the Bill of Rights incorporated into the Fourteenth Amendment Due Process Clause as "inherent in the concept of liberty." Rotunda & Nowak, Treatise on Constitutional Law (4th ed.) § 18.39. Although not all of the Bill of Rights has been thus incorporated, the Eighth Amendment protection against cruel and unusual punishment has. McDonald v. Chicago, 561 U.S. 742 (2010), citing Robinson v. California, 370 U.S. 660 (1962). Thus the right to be free from cruel and unusual punishment is a fundamental right protected from state-imposed burdens that treat similarly situated persons differently without proper justification.

A requisite for an Equal Protection claim is that a plaintiff show that he or she has been treated disparately from someone who is similarly situated. Richland Bookmart, Inc., v. Nichols, 278 F.3d 570, 574 (6th Cir. 2002). Defendants assert that Plaintiffs cannot show that they are similarly situated with all other Ohio capital inmates because they will be alleging, in individual supplemental complaints, that they have specific physical and mental characteristics that differ from other death row inmates (Motion, ECF No. 1379, PageID 51938). This is said to be fatal to the Equal Protection claims because "Plaintiffs cannot have it both ways." Id. at PageID 51939.

The Magistrate Judge disagrees. All Plaintiffs are subject to a sentence of death imposed by an Ohio court and all are subject to being executed under the Execution Protocol. While this Court has not found any Equal Protection violations since 2012, it is at least imaginable that one might be threatened, e.g., this particular inmate gets only thirty seconds for his last statement or that inmate's lawyer gets no telephone access.

The Law of this Case on Equal Protection

In defending against the instant Motion, Plaintiffs rely heavily on the law of the case doctrine, including the mandate rule (Memo in Opp., ECF No. 1406, PageID 52354-80). Therefore it is important to determine what prior treatment has been given to Equal Protection claims in prior decisions in this case.

Earlier in this litigation, Judge Gregory Frost, to whom this case and its predecessors were assigned from 20042 to 2016, recognized the distinction Plaintiffs make between a pure Eighth Amendment claim and an Equal Protection burden-on-fundamental-rights claim where the asserted underlying fundamental right is the Eighth Amendment right to be free from cruel and unusual punishment. In Cooey (Smith) v. Kasich, 801 F.Supp.2d 623 (S.D. Ohio July 8, 2011), in granting preliminary injunctive relief, Judge Frost wrote that

Id. at 642-43. "Although everything in the written protocol is important, not everything in that protocol is of equal importance for purposes of scrutiny in light of the Constitution." Id. at 644. Judge Frost then proceeded to find "at least four deviations from the core components of the written protocol" Id.

In In re: Ohio Execution Protocol Litig.(Brooks), 2011 WL 5316141 (S.D. Ohio Nov. 4, 2011), Judge Frost denied preliminary injunctive relief on the same two Equal Protection claims which had been successful in Smith, but adhered to the same Equal Protection analysis: deviations from Core Elements of the Execution Protocol would be found to be constitutional violations, but Brooks had not proven such deviations were likely to happen at his execution. In In re: Ohio Execution Protocol Litig. (Lorraine), 840 F.Supp.2d 1044 (S.D. Ohio 2012), Judge Frost again employed the same Equal Protection analysis, noting that the Equal Protection claim made by Lorraine sufficiently targets that sweeping core deviations3 would at least burden Plaintiff's fundamental right by negating some of the precise procedural safeguards that this Court and the Sixth Circuit heralded in prior discussions of Eighth Amendment claims in this same litigation. Id. at 1054, quoting Cooey v. Strickland (Smith), 801 F.Supp.2d 623 at 653 (S.D. Ohio 2011). Judge Frost granted Lorraine preliminary injunctive relief on finding constitutionally significant deviations from the protocol had happened during the Brooks execution: "Defendants have failed to present this Court with any evidence that the non-core deviations were presented to [ODRC Director] Mohr," as required by the protocol. 840 F. Supp. 2d at 1058.

In In re: Ohio Execution Protocol Litig.(Wiles), 868 F.Supp.2d 625 (S.D. Ohio Apr. 4, 2012), Judge Frost reiterated the same Equal Protection framework, but added a nuance, derived from Towery v. Brewer, 672 F.3d 650 (9th Cir. 2012), that the deviations on which various plaintiffs had focused "were more likely to create a risk of cruel and unusual punishment than executions without the deviations. Id. at 638-39. He read this as reinforcing the distinction he had been drawing between full-blown Eighth Amendment violations and state actions which increased the risk of an Eighth Amendment violation by removing a protection against one. He found Wiles was unlikely to prevail on his Equal Protection claims and denied injunctive relief. Wiles did not appeal and was executed.

In In re: Ohio Execution Protocol Litig. (Hartman), 906 F.Supp.2d 759 (S.D. Ohio Nov. 5, 2012), Judge Frost employed the same Equal Protection analysis as in Wiles, but concluded that "the asserted deviations of which Hartman complains . . . fail to constitute problems that present a strong likelihood of his succeeding on the merits." Hartman did not appeal and was executed.

In In re: Ohio Execution Protocol Litig. (Phillips), 2013 U.S. Dist. LEXIS 159680 (S.D. Ohio Nov. 7, 2013), Judge Frost again maintained the distinction between Eighth Amendment violations and state actions which burden the fundamental right to be free from cruel and unusual punishment. Again, however, Judge Frost found no equal protection violations and denied Phillips4 injunctive relief. Phillips did not appeal.

Three preliminary injunction hearings have been held in this case since Judge Frost's retirement, all for Plaintiffs who unanimously consented to plenary Magistrate Judge jurisdiction. In In re Ohio Execution Protocol Litig. (Phillips, Tibbetts, & Otte), 235 F.Supp.2d 892 (S.D. Jan. 26, 2017), the Plaintiffs raised four Equal Protection claims. The Court found they were unlikely to prevail on those claims and refused relief. Id. at 954-56.5 The Plaintiffs did not appeal.

In In re Ohio Execution Protocol Litig. (Otte), 2017 U.S. Dist. LEXIS 145432 (S.D. Ohio Sept. 8, 2017), Otte did not seek to litigate any Equal Protection claims.

In In re Ohio Execution Protocol Litig. (Campbell & Tibbetts), 2017 U.S. Dist. LEXIS 182406, 2017 WL 5020138 (S.D. Ohio Nov. 3, 2017), the Plaintiffs sought relief, inter alia, on Equal Protection sub-claims that alleged they would be "treated disparately due to Defendants' deviations from their Execution Protocol, . . . sub-claim A.1" Id. at *71-72.

This Court then treated at length Campbell and Tibbetts' Equal Protection claims

(ECF No. 1355, PageID 50474).

Id. at *77-84. The Court then analyzed at length Campbell and Tibbetts' evidence for the asserted deviations from the Protocol and denied preliminary injunctive relief on their Equal Protection claims. Id. at *84-98.

Despite how vigorously Plaintiffs' counsel have litigated this consolidated case (over thirty thousand pages of filings since October 3, 2016), they did not appeal the holding on their Equal Protection claims. If they disagreed with this Magistrate Judge's view of what the Equal Protection law of this case is, they had a perfect opportunity to test their view of it on appeal in Campbell & Tibbetts and declined to do so. Nor have they anywhere in their Memorandum in Opposition on the instant Motion discussed this decision.7 This Court's Campbell & Tibbetts decision has now been affirmed without any mention of the Equal Protection Clause. In re Ohio Execution Protocol Litig. (Campbell & Tibbetts), ___ F.3d ___, 2018 U.S. App. LEXIS 2464 (6th Cir. Feb. 1, 2018). Thus this Court's equal protection analysis in Campbell & Tibbetts, supra, has now become part of the law of this case without disturbance by the Sixth Circuit.

In their briefing on the instant Motion, Plaintiffs have not wavered from their very broad view of what the law of the case requires as to their Equal Protection claims.

First of all, they claim the Sixth Circuit's decision in Lorraine, supra, is binding precedent and controlling under the mandate rule as well (Memo in Opp., ECF No. 1406, PageID 52355). As noted above, the Magistrate Judge agrees that Lorraine is binding precedent for what it decides, to wit, that Judge Frost did not err in preliminarily enjoining Lorraine's execution on the basis of the proof that the State was likely, based on what happened during the Brooks execution, to deviate from the then-operative protocol in ways that would violate Lorraine's Equal Protection rights by burdening his fundamental right to be free from cruel and unusual punishment.

Plaintiffs, however, attempt to expand the Lorraine holding in a number of ways.

First, they assert, "Lorraine establishes, as a matter of law, that Plaintiff's Equal Protection claims are distinct, legally and analytically, from Eighth Amendment claims, because that was the core issue before the appellate court on Defendants' motion to vacate the preliminary junction [sic] order." (Memo in Opp., ECF No. 1406, PageID 52356.) In his motion for preliminary injunctive relief, Lorraine had claimed the then-operative execution protocol was facially invalid under the Equal Protection Clause and a claim that conflated the class-of-one and burden on fundamental rights claims. In re Ohio Execution Protocol Litig. (Lorraine), 840 F.Supp.2d 1044, 1049 (S.D. Ohio Jan. 11, 2012). Whatever the Equal Protection claims as pleaded were, however, Judge Frost's analysis was of claimed deviations from the protocol, claims of the type now made in Sub-claim A.1, infra, and not any of Plaintiffs' other Equal Protection claims.

Second, Plaintiffs assert the Sixth Circuit "adopted [Judge Frost's] analysis and reasoning from the orders granting injunctive relief to Plaintiffs Smith and Lorraine" and therefore "the analysis and reasoning in those Smith and Lorraine district court orders is likewise binding circuit authority, controlling under the mandate rule," . . . (Memo in Opp., ECF No. 1406, PageID 52356-57). The Sixth Circuit did not say it was adopting Judge Frost's analysis. Rather it said, "[w]e agree with the district court that the State should do what it agreed to do in other words, it should adhere to the execution protocol it adopted.[8]" In re Ohio Execution Protocol Litig., 671 F.3d 601, 602 (6th Cir. 2012).

The mandate rule is a specific application of the law-of-the-case doctrine. The basic tenet of the mandate rule is that a district court is bound to the scope of the remand issued by the court of appeals. United States v. Campbell, 168 F.3d 263, 265 (6th Cir. 1999). The mandate rule is a distinct concept which preserves the hierarchy of the court system. Scott v. Churchill, 377 F.3d 565, 570 (6th Cir. 2004). But what was the scope of the remand in Lorraine? Examination of the Sixth Circuit docket in Case No. 12-3035 shows that no mandate ever issued.

A. Equal Protection Claims of Imposing Burdens on Fundamental Rights

Failure to abide by state law is not itself a constitutional violation. Roberts v. City of Troy, 773 F.2d 720 (6th Cir. 1985). Violation by a State of its own procedural rules, for example, does not necessarily constitute a violation of due process. Bates v. Sponberg, 547 F.2d 325 (6th Cir. 1976); Ryan v. Aurora City Bd. of Educ., 540 F.2d 222, 228 (6th Cir. 1976). "A state cannot be said to have a federal due process obligation to follow all of its procedures; such a system would result in the constitutionalizing of every state rule, and would not be administrable." Levine v. Torvik, 986 F.2d 1506, 1515 (6th Cir. 1993), cert. denied, 509 U.S. 907 (1993), overruled in part on other grounds by Thompson v. Keohane, 516 U.S. 99 (1995).

Faced with these precedents, Plaintiffs have attempted to do with the Equal Protection Clause what the case law holds cannot be done with the Due Process Clause, to wit, to constitutionalize state procedural law, e.g., by arguing it is a violation of Equal Protection to deviate from the Protocol, the state execution statute, Ohio's definition of death, etc. But the Equal Protection Clause no more constitutionalizes state procedural law than the Due Process Clause does. As Judge Frost held in Wiles, supra, to plead an Equal Protection claim that is distinct from a straight Eighth Amendment claim, Plaintiffs must plead a deviation from or violation of a state law or regulation that increases the risk of an Eighth Amendment violation where the state law itself was created to protect Eighth Amendment interests, e.g., the Execution Protocol.

Each of Plaintiffs' ten burden on fundamental rights sub-claims must be reviewed with this standard in mind.

Sub-claim A.1

Although Plaintiffs could theoretically and have in the past pleaded deviations from the Execution Protocol that, if proved, would violate their Equal Protection rights, the present Fourth Amended Omnibus Complaint in sub-claim A.1 does not do so. For example, in ¶¶ 1360-62, they complain of the return of midazolam, a paralytic drug, and potassium chloride to the Execution Protocol, but amending the Protocol is not deviating from it.9

Nevertheless, sub-claim A.1 pleads in general terms an equal protection theory which has been accepted by this Court in the past and resulted in the issuance of preliminary injunctive relief, to wit, that deviations from at least some provisions of the Execution Protocol burden an inmate's right to be free of cruel and unusual punishment. There are many dozens of Plaintiffs in this case, some with execution dates as far in the future as April 21, 2022, some with no execution date at all. If Defendants should threaten deviations from the five core principles of the Execution Protocol in the future, Plaintiffs will be required to specify what those threats are sufficiently in advance of an execution to permit adjudication of the claim(s). Therefore, Defendants' Motion to Dismiss as to sub-claim 4.A.1 should be denied.

Sub-claim A.2

In their second sub-claim, Plaintiffs assert their Equal Protection rights will be violated by Ohio's deviation from its execution statute, Ohio Revised Code § 2949.22(A)(Fourth Amended Omnibus Complaint, ECF No. 1252, PageID 45747-49, ¶¶ 1372-80). They then list various hypothetical ways in which Defendants might fail to comply with that statute.

The theory under which the Equal Protection Clause is said to apply here is that there are one or more provisions of Ohio Revised Code § 2949.22(A) which protect Plaintiffs' rights to be free from Eighth Amendment harm. Under that theory, ¶¶ 1375 and 1376 do not state a claim under 42 U.S.C. § 1983 because there is no federal constitutional right to a "quick" or "painless" execution. Paragraphs 1377 and 1378 fail because there is no threat of Defendants "failing to continue application of the lethal injection drug(s) until a Plaintiff is dead" or of "failing to administer a sufficient dosage of the lethal injection drug(s)." That is to say, the Defendants have not expressly threatened either of these courses of conduct, nor have they engaged in these practices in the past so as to have made an implicit threat of repeating them.

Paragraph 1379 in its first phrase speaks of the use of illegally sourced drugs, but does not plead that Ohio has acquired execution drugs from illegal sources or has threatened to do so. Paragraph 1379 in its second phrase complains Ohio will use "drugs that are inappropriate and incapable of sufficiently protecting Plaintiff from experiencing the horrific pain and suffering of the paralytic and potassium chloride in the revised three-drug method." However, Ohio's use of a 500 milligram dose of midazolam as the initiatory drug has now survived two tests on appeal and there is no threat of use of any other drug as the first drug.

Under Twombly and Iqbal, supra, a plaintiff must plead a claim which is at least factually plausible; merely pleading legal conclusions will not suffice. Under this standard, sub-claim A.2 should be dismissed.

Sub-claim A.3.

In sub-claim A.3, Plaintiffs speculate that the Ohio constitution's prohibition on cruel and unusual punishments "may accord greater civil liberties and protections to individuals and groups than its federal counterpart." (ECF No. 1252, PageID 45749, ¶ 1383.) But nowhere in their Memorandum in Opposition do they so much as mention the Ohio Constitution, much less any decisions by Ohio courts that indicate it is more protective than the Eighth Amendment. Sub-claim A.3 is purely speculative and does not meet the Twombly/Iqbal pleading standard; it should be dismissed.

Sub-claim A.4.

In their fourth Equal Protection fundamental rights sub-claim, Plaintiffs assert Defendants will violate their Equal Protection rights by using execution drugs that do not comply with "various federal and Ohio state laws . . . ." (ECF No. 1252, PageID 45750, ¶ 1388.)

This is evidently an effort by Plaintiffs to constitutionalize — i.e., enforce through the Equal Protection Clause — various laws related to the importation and/or compounding of various drugs which might be used for executions. The theoretical difficulty with this claim is that Plaintiffs do not plead and cannot show that any of these drug laws were adopted, even in part, to protect those to be executed from cruel and unusual punishment, unlike the Execution Protocol on which they rely for sub-claim A.1. Sub-claim A.4 should therefore be dismissed.

Sub-claim A.5.

In their fifth Equal Protection sub-claim, Plaintiffs claim that their Equal Protection rights are violated by Defendants' unspecified "deviations" from Ohio's definition of death statute, Ohio Revised Code § 2108.40 (ECF No. 1252, PageID 45752-53, ¶¶ 1393-97). That statute provides:

Plaintiffs have not pleaded that Defendants have ever declared an inmate dead when he was not dead by this definition. In fact, none of the Defendants pronounce an inmate dead; the Execution Protocol requires that this be done by "an appropriate medical professional." (Protocol, ECF No. 711-1, PageID 21469.) Nor do Plaintiffs plead that Defendants have threatened to adopt a process of declaration of death not specified in the Execution Protocol.

More to the point, Plaintiffs do not suggest that Ohio Revised Code § 2108.40 was adopted to protect inmates from invasion of their right to be free from cruel and unusual punishment, a required first step in their Equal Protection argument. Therefore sub-claim A.5 should be dismissed.

Sub-claim A.6.

In their sixth Equal Protection burden on fundamental rights sub-claim, Plaintiffs assert that there exist state and federal laws as well as several ODRC policies prohibiting experimentation on non-consenting humans, and that Defendants will use drugs for execution experimentally.

Plaintiffs do not define what they mean by "experiment." The scientific meaning of the term requires beginning with some type of hypothesis that can be experimentally tested, devising a test, applying that test to a number of subjects, then collecting and analyzing the results to come to a conclusion about the truth or falsity of the hypothesis. Out of horror over the concentration camp "medical" experiments carried out by doctors during the Nazi regime in Germany and some similar incidents in this country, the law now prohibits such experiments on non-consenting humans. Research institutions usually have institutional review boards to approve the design of experiments beforehand.

Ohio executions are certainly not experiments of that sort. Each time a new drug or combination of drugs is used in a lethal injection, it may be that the results are unexpected. Certainly the January 2014 execution of Dennis McGuire by Defendants appears to have produced sufficiently problematic and unexpected results that the lethal injection protocol used on that occasion was abandoned. McGuire's execution was the first time that particular combination of drugs was used, but the result was not a decision by Defendants to try the same combination of a number of other inmates to see if a different reaction would be obtained.

Not every use of a new method of execution can properly be called an "experiment" within the meaning of the prohibition on experimenting on non-consenting humans. If Ohio, for example, would adopt the firing squad as a method of execution, the first use of that method could not properly be called an experiment. It is a fact of human physiology, known to a reasonable degree of medical certainty, that if a number of bullets are fired into a human heart at short range,10 the result will inevitably be death.

Neither Ohio nor the federal government adopted laws against experimenting on non-consenting humans as a protection against cruel and unusual punishment in executions. Therefore the Equal Protection Clause does not prohibit "deviations" from the laws referenced in this sub-claim, which should be dismissed for failure to state a claim upon which relief can be granted.

Sub-claim A.7.

In their seventh Equal Protection sub-claim, Plaintiffs allege Defendants will treat them disparately from other persons in ODRC custody who require medical care by failing to provide that care after a Plaintiff has been injected with lethal drugs and declared dead, but when he is in fact not dead under Ohio Revised Code § 2108.40.

The difficulty with this claim is that Defendants have a completely rational basis for distinguishing between inmates who have been lethally injected pursuant to a death warrant but are not yet dead within the meaning of Ohio Revised Code § 2108.40 and other inmates: the Defendants are obliged as a matter of law to carry out a death warrant by lethally injecting a death-sentenced inmate whereas they are prohibited by the Ohio criminal code from lethally injecting anyone else. To put it another way, a death-sentenced inmate who has been injected with sufficient drugs to cause his death has no right to resuscitative medical treatment. If, of course, it is determined that the execution cannot be completed, as was the case with Defendants' inability to achieve IV access with Mr. Campbell, the inmate would be entitled to medical care necessary to restore or maintain his health, as is any inmate. But that does not imply a duty to start an execution and then stop it at some point and "resuscitate" the inmate.

Sub-claim A.7 should be dismissed for failure to state a claim on which relief can be granted.

Sub-claim A.8.

In their eighth Equal Protection sub-claim, Plaintiffs assert Defendants will violate their Equal Protection rights by using midazolam at the initiatory drug because of its different effects on different people. This claim is precluded by precedent. Fears v. Morgan (In re: Ohio Execution Protocol), 860 F.3d 881 (6th Cir. Jun 28, 2017)(en banc); In re Ohio Execution Protocol Litig. (Campbell & Tibbetts), ___ F.3d ___, 2018 U.S. App. LEXIS 2464 (6th Cir. Feb. 1, 2018). Sub-claim 8 should be dismissed on this basis.

Sub-claim A.9.

In their ninth Equal Protection sub-claim, Plaintiffs allege that variations in compounded drugs make them unconstitutional to use in executions because the regulatory mechanisms involved with manufactured drugs will not be applied and the unwillingness of reputable pharmacies to compound drugs for execution purposes increases the risks of an unconstitutional execution, indeed creates "a substantial, objectively intolerable risk." (ECF No. 1252, PageID 45759, ¶ 1424.)

Plaintiffs do not plead and cannot show that regulations on compounded drugs were adopted to prevent violations of the Eighth Amendment. It may be that the risks with use of compounded drugs are sufficiently high that using them for executions, at least in the absence of adequate testing in advance, would violate the Eighth Amendment. But Plaintiffs have not pleaded an adequate basis for an Equal Protection claim regarding compounded drugs. That is to say, there is no demonstrated threat of disparate treatment with the use of such drugs.

Sub-claim A.10.

In their tenth Equal Protection sub-claim, Plaintiffs contend that the removal of required drug concentrations from the Execution Protocol violates their Equal Protection rights.

Although that amendment to the Protocol precedes the last three preliminary injunction hearings in this case, the Court has not yet heard any evidence in support of this claim. It is not unconstitutional to amend the Execution Protocol, but it is at least conceivable that this particular amendment might be shown to have reduced the safeguards of Plaintiffs' Eighth Amendment rights. The Motion to Dismiss sub-claim 10 should be denied.

B. Equal Protection — "Class of One" Disparate Treatment

The Supreme Court has recognized that an equal protection claim can be brought on behalf of a class of one "where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000), citing Sioux City Bridge Co. v. Dakota County, 260 U.S. 441 (1923); Allegheny Pittsburgh Coal Co. v. Commission of Webster Cty., 488 U.S. 336 (1989).

The class-of-one doctrine does not apply to forms of state action that "by their nature involve discretionary decision making based on a vast array of subjective, individualized assessments." Engquist v. Oregon Dep't of Agric., 553 U.S. 591, 603 (2008).

Id.

Judge Frost previously analyzed Plaintiffs class-of-one claims in this case:

In re: Ohio Execution Protocol Litigation (Hartman), 2012 U.S. Dist. LEXIS 158199 (S.D. Ohio Nov. 5, 2012), quoting Towery v. Brewer, 672 F.3d 650 (9th Cir. 2012).

In evaluating Equal Protection class-of-one claims, the courts apply rational basis review to disparate treatment situations, rather than strict scrutiny. Johnson v. Bredesen, 624 F.3d 742 (6th Cir. 2010).

Defendants assert that a class-of-one claim requires an allegation of intentional discrimination (Motion, ECF No. 1379, PageID 51948). Plaintiffs respond that they have alleged intentional discrimination, citing the Fourth Amended Omnibus Complaint, ECF No. 1252, at ¶¶ 1441, 1446, 1463, 1466, 1468, 1469, 1471, 1473, 1476, 1479, 1483, 1486, 1490, 1491, and 1494.

Nevertheless, although they have alleged intentional conduct, Plaintiffs assert there is no scienter requirement for an Equal Protection violation (Memo in Opp., ECF No. 1406, PageID 52382, relying on Davis v. Prison Health Serv's., 670 F.3d 433, 441 (6th Cir. 2012); Bible Believers v. Wayne County, 805 F.3d 228, 256 (6th Cir. 2015)(en banc); and Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 379 (6th Cir. 2011).) Relying on Engquist, supra, Plaintiffs argue that the core concern of the Equal Protection Clause is protection against arbitrary classifications, measured against a clear standard. They conclude

(Memo in Opp., ECF No. 1406, PageID 52385.)

Plaintiffs correctly posit that recent Equal Protection jurisprudence undercuts prior case law which required showing an improper motive on the part of a government actor. Rather, it is sufficient to show that the disparate treatment burdens a fundamental right, targets a suspect class, or has no rational basis. Club Italia Soccer & Sports Org. v. Shelby, 470 F.3d 286, 297 (6th Cir. 2006).

Sub-claim B.1

In sub-claim B.1 of their class-of-one Equal Protection claims, Plaintiffs assert that they have been or will be singled out arbitrarily and irrationally for deprivation of some of the protections provided by the Execution Protocol (Fourth Amended Complaint, ECF No. 1252, ¶ 1446, PageID 45766-67). This claim is made now on behalf of the dozens of death row inmates who are Plaintiffs in this action. Sub-claim B.1 does not aver any particular present or threatened future arbitrary classification of any one or more of the Plaintiffs and this Court has not found a deviation for the Protocol Equal Protection violation since 2012. At this point the Twombly/Iqbal plausibility requirement comes up against the time horizon of a case which, if history demonstrates anything, will continue to be litigated into the indefinite future.

This sub-claim is sufficiently parallel to that made in sub-claim A.1 as to come within the law of the case cited above. The Magistrate Judge respectfully recommends that sub-claim B.1 not be dismissed, subject to the requirement that any particular Plaintiff will need to amend or supplement his individual complaint if he is threatened with particular deviations from the Execution Protocol at the time his execution becomes imminent.

Sub-claim B.2

The Magistrate Judge recommends sub-claim B.2 be dismissed on the same basis as sub-claim A.2.

Sub-claim B.3

The Magistrate Judge recommends sub-claim B.3 be dismissed on the same basis as sub-claim A.4.

Sub-claim B.4.

The Magistrate Judge recommends sub-claim B.4 be dismissed on the same basis as sub-claim A.5.

Sub-claim B.5.

The Magistrate Judge recommends sub-claim B.5 be dismissed on the same basis as sub-claim A.6.

Sub-claim B.6.

The Magistrate Judge recommends sub-claim B.6 be dismissed on the same basis as sub-claim A.7.

Sub-claim B.7.

The Magistrate Judge recommends sub-claim B.7 be dismissed on the same basis as sub-claim A.8.

Sub-claim B.8.

The Magistrate Judge recommends the Motion to Dismiss sub-claim B.8 be denied on the same basis as sub-claim A.10.

Fifth Cause of Action: Ninth Amendment Violations

In their Fifth Cause of Action, Plaintiffs allege that their executions will violate their "fundamental, unenumerated rights arising under the principles of liberty and/or natural law that are secured by the Ninth Amendment," including their right to privacy, personal dignity, bodily integrity, and not to be the subject of forced involuntary human experimentation (ECF No. 1252, PageID 45778-79, ¶¶ 1497-98).

In In re Ohio Execution Protocol Litig. (Tibbetts & Otte), the Magistrate Judge dismissed a parallel claim made by those two Plaintiffs. On the basis of the authority relied on there, it is recommended that the Fifth Cause of Action be dismissed.

Sixth Cause of Action: First Amendment Freedom of Speech Violation

In their Sixth Cause of Action, Plaintiffs claim that the restrictions placed on their "last words" violate their rights under the First, Ninth, and Fourteenth Amendments (ECF No. 1252, PageID 45782-84, ¶¶ 1506-19). Defendants seek dismissal of these claims on the basis of precedent, citing In re Ohio Execution Protocol Litig. (Wiles), 868 F.Supp.2d 625, 649-50 (S.D. Ohio 2012); In re: Ohio Execution Protocol Litig. (Tibbetts & Otte), 2017 U.S.Dist. LEXIS 107468 (S.D. Ohio, July 12, 2017); and In re: Ohio Execution Protocol Litig. (Campbell), 2017 WL 3479589 (Aug. 14, 2017).

In Wiles Judge Frost confronted an Equal Protection challenge to the portion of the Execution Protocol which empowered the Warden to turn off the inmate's microphone if a portion of his last words became offensive. Judge Frost concluded the underlying First Amendment claim did not provide a basis for preliminary injunctive relief because it imposed a reasonable restriction. 868 F. Supp. 2d at 649-50, relying on Turner v. Saffley, 482 U.S. 78 (1987). Judge Frost did not reach the other portions of the "last words" regulation — the length and content portions — because it did not appear Wiles was challenging them. Id.

In Tibbetts & Otte, supra, and in Campbell, supra, Plaintiffs did attack the length and content portions of the Execution Protocol. This Court dismissed the parallel First Amendment claims in those cases upon finding that "the evidence they cite of likely restrictions which might be imposed by Warden Erdos (ECF No. 1018, PageID 39179) are not unreasonable regulations in this context." (Tibbetts & Otte, 2-17 U.S. Dist. LEXIS 107468 at *42; Campbell, 2017 WL 3479589 at *6). The evidence in question was deposition testimony of Warden Erdos about length and content restrictions he would be prepared to impose. Plaintiffs cite no other evidence beyond what they cited in these prior cases.

As with the two prior decisions, the question is here before the Court on a motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Thus the Twombly/Iqbal plausibility standard applies. It is possible to imagine content and length restrictions on a last statement which would offend the Constitution, e.g., if an inmate were not permitted to say anything unless he first confessed to the crime or if he were limited to ten words. But Plaintiffs do not claim they are threatened with anything like a plausibly unconstitutional limitation on their last words. Therefore the Sixth Cause of Action should be dismissed.

Seventh Cause of Action — Fourteenth Amendment Due Process Violation

In their Seventh Cause of Action, Plaintiffs claim they have a due process right to notice of the method of execution Defendants intend to employ as to each Plaintiff in turn, including identification of the source of any execution drugs (Fourth Amended Omnibus Complaint, ECF No. 1252, PageID 45784-89, ¶¶ 1520-40).

Defendants assert this claim should be dismissed on the basis of the Court's dismissal of the parallel claims by Tibbetts and Otte (Motion, ECF No. 1379, PageID 51952). Plaintiffs divide their defense of this Cause of Action into two parts.

First, they discuss a right to have notice of the manner of execution including the execution drugs. The Court dismissed this claim in Tibbetts & Otte, finding there was no authority to support the claim because the citation Plaintiffs gave did not produce the case for which it was given. Plaintiffs now concede a citation error and direct the Court to First Amendment Coal. Of Ariz., Inc. v. Ryan, 188 F.Supp.3d 940 (D. Ariz. May 18, 2016).

In Ryan, the court recognized that death row inmates have an interest in predictability of method of execution which "must be weighed against the State's interest in flexibility." Id. at 953. "In some cases, the State's change to an inmate's execution method may be so significant, so near the date of execution, and so unsupported by state interests, that it denies the inmate the process he is due in order to raise an Eighth Amendment challenge." Id. On its face the current Execution Protocol provides Defendants with discretion to make some changes in method close to the executions in question. In practice, however, the ODRC Defendants have given Plaintiffs ample notice of changes to permit Eighth Amendment challenges. The most recent protocol change on October 7, 2016, coupled with reprieves in January 2017 allowed a five-day evidentiary hearing in January, a one-day hearing in September 2017, and another five-day hearing in October 2017. The Defendants' history of deviations from Core Principles of the Execution Protocol, which led to injunctive relief in the past, has not been the occasion for any injunctive relief in this Court since 2012.

This Court agrees with the Ryan court that Plaintiffs are entitled to sufficient notice of changes in Ohio's method of execution to permit them to litigate such changes as threaten their Eighth Amendment rights, but their assertion that the Execution Protocol is unconstitutional because it does not provide a firm deadline for any variations on the Protocol does not state a claim for relief under the Fourteenth Amendment.

The second portion of this claim about the identity of drug sources is precluded by Fears v. Kasich, 845 F.3d 231 (6th Cir. 2016).

The Seventh Cause of Action should therefore be dismissed for failure to state a claim upon which relief can be granted.

Eighth Cause of Action: Fourteenth Amendment Due Process Violations for Experimenting on Non-Consenting Prisoners

In their Eighth Cause of Action, Plaintiffs assert that their executions pursuant to the Execution Protocol will constitute unconstitutional human experiments in violation of the substantive portion of the Due Process Clause of the Fourteenth Amendment (ECF No. 1252, PageID 45789-95, ¶¶ 1541-69). They assert "[b]ecause of the lack of data, studies, physician expertise, and the variability of human response, every lethal injection that Defendants conduct is a human experiment." Id. at ¶ 1553.

Defendants seek dismissal on the basis of this Court's prior decision dismissing the same claims as made by Raymond Tibbetts and Gary Otte. (Motion, ECF No. 1379, PageID 51954.) See In re: Ohio Execution Protocol Litig. (Tibbetts & Otte), 2017 U.S. Dist. LEXIS 107468 *49 (S.D. Ohio July 12, 2017)(Merz, M.J.).

Plaintiffs acknowledge this prior dismissal, but claim it is inconsistent with Judge Frost's description of the impending execution of Dennis McGuire as an "experiment" (In re: Ohio Execution Protocol Litig. (McGuire), 994 F.Supp.2d 906, 913 (S.D. Ohio Jan. 13, 2014)), and the Sixth Circuit's affirmance of this Court's conclusion that paramedics and EMT's provide "medical" services in the execution context. Otte v. Kasich (In re Ohio Execution Protocol Litig.), 2017 U.S. App. LEXIS 17436 (6th Cir. Sept. 17, 2017), affirming In re Ohio Execution Protocol Litig., 2017 U.S. Dist. LEXIS 115583 (S.D. Ohio July 25, 2017).

Plaintiffs' counsel's reliance on these two citations is symptomatic of their repeated proof-texting11 in this case: treating words as if they were unequivocal in meaning, ripping them from the context in which they were used, and inserting them in completely different contexts. Judge Frost did indeed refer to the protocol about to be used on Dennis McGuire in January 2014 as an "experiment," but reading even the small portion of that opinion in which the word is used makes it plain he was not writing about experiments in the sense in which Plaintiffs now use that word. The two-drug method used on McGuire had never been used before. But its use in McGuire's execution was not an experiment in the sense in which the Due Process Clause prohibits medical experiments on non-consenting human subjects. Similarly, in Otte v. Kasich, supra, the Sixth Circuit upheld this Court's reading of Ohio Revised Code § 109.36(b) as meaning that persons such as paramedics and EMT's providing services under contract are "employees" of the State of Ohio for immunity purposes.

Equivocation, or the tendency to assume the same word means the same thing in different contexts "has all the tenacity of original sin," but nevertheless it "must constantly be guarded against." Walter Wheeler Cook, The Logical and Legal Basis of the Conflict of Laws at 159 (1942). It is a semantic or informal logical fallacy which should be outside the practice of anyone trained in the law. Perhaps the turn to computer assisted legal research, which treats a word as a string of letters rather than as standing for a concept, has caused this fallacy to proliferate. Whatever the cause, the fallacy does not persuade this Court and should not persuade anyone. Counsel are strongly urged to avoid this fallacy in future argument in this case.

Because the conduct of executions in the various ways permitted by 01-COM-11 do not constitute experiments on non-consenting human subject of the sort condemned by the laws cited by Plaintiffs or by the Due Process Clause of the Fourteenth Amendment, the Eighth Cause of Action should be dismissed.

Ninth Cause of Action: Violations of the Privileges or Immunities Clause by Experimenting on Non-Consenting Prisoners

In their Ninth Cause of Action, Plaintiffs allege that their executions pursuant to the Execution Protocol will violated their rights under the Privileges or Immunities Clause of the Fourteenth Amendment (Fourth Amended Omnibus Complaint, ECF No. 1252, PageID 45795-45799, ¶¶ 1570-83). Acknowledging the narrow scope of that Clause after the decision in Slaughter-House Cases, 83 U.S. 36 (1873), Plaintiffs assert the Clause still protects the rights of an American citizen secured by treaties with foreign nations. Id. at ¶ 1574. They then list the treaties which protect American citizens from being the unconsenting subject of medical experimentation. Id. at ¶ 1575.

Defendants seek dismissal on the basis of this Court's dismissal of a parallel claim made by Plaintiffs Tibbetts and Otte (Motion, ECF No. 1379, PageID 51955), citing In re Ohio Execution Protocol Litig. (Tibbetts & Otte), 2017 U.S. Dist. LEXIS 107468 (S.D. Ohio July 12, 2017). They also rely on Buell v. Mitchell, 274 F.3d 337, 370-76 (6th Cir. 2001), for the proposition that Ohio's imposition of the death penalty does not violate any international agreements the United States has made.

Plaintiffs point out that their claim is made under the Privileges or Immunities Clause of the Fourteenth Amendment and not the Privileges and Immunities Clause of Article IV, § 2 of the Constitution. They also correctly note that Buell, supra, is inapposite.

Plaintiffs correctly assert that Slaughter-House Cases did recognize that a right accruing to national citizenship protected by the Privileges or Immunities Clause is any right secure to an American citizen by international treaty. However, none of the treaties cited in ¶ 1575 purports to prevent an American State from executing an American citizen by using lethal drugs "experimentally" in the way alleged by Plaintiffs. In other words, the Ninth Cause of Action represents another equivocal use of the word "experiment" that was rejected as to the First Cause of Action, Sub-claim A.6, and the Eighth Cause of Action. On that basis, the Ninth Cause of Action should be dismissed.

Tenth Cause of Action: Violation of the Ex Post Facto Clause

In their Tenth Cause of Action, Plaintiffs claim the Execution Protocol violates the Ex Post Facto Clause, Art I, §§ 9 & 10 of the Constitution (Fourth Amended Omnibus Complaint, ECF No. 1252, PageID 45800-04, ¶¶ 1584-1606).

Defendants seek dismissal on the basis of In re Ohio Execution Protocol Litig. (Tibbetts & Otte), 2017 U.S. Dist. LEXIS 107468 *63 (S.D. Ohio July 12, 2017), which found the claim precluded by Fears v. Morgan (In re: Ohio Execution Protocol), 860 F.3d 881 (6th Cir. 2017)(en banc). Defendants also rely on Malloy v. South Carolina, 237 U.S. 180, 185 (1915).

Plaintiffs are correct that Fears v. Morgan, supra, had no discussion of the Ex Post Facto Clause. Plaintiffs Phillips, Tibbetts, and Otte did not seek preliminary injunctive relief on the basis of their Ex Post Facto claim (Third Amended Complaint, ECF No. 546, PageID 14939-42) and thus this Court had no occasion to discuss that issue in its opinion that was on appeal.

The gravamen of the Tenth Cause is that the "DRC Defendants have changed the law by adopting new and greater punishment than that which first applied to Plaintiff." (ECF 1252, PageID 45802, v ¶ 1597.) This is so, Plaintiffs say, because the October 7, 2016, version of 01-COM-11 as applied will not cause a quick and painless death, as provided in Ohio Revised Code § 2949.22(A), because of the use of midazolam as the initiatory drug. That will cause an inmate's death to be "significantly more than quick and painless, a substantially greater punishment than that imposed by the statute that first adopted lethal-injection as a manner of execution." Id. at PageID 45804, ¶ 1604.

In Malloy, supra, the Supreme Court held South Carolina's switch from hanging to electrocution as a method of execution did not violate the Ex Post Facto Clause (Motion, ECF No. 1379, PageID 51956-57). The change in the law complained of was as follows:

Id. at 183. Citing prior case law back to Justice Chase's opinion in Calder v. Bull, 3 U.S. 386 (1798), the Court upheld the South Carolina law because it did not increase the penalty — death — for the crime of murder, "but only the mode of producing this . . . ." Id. at 185. In In re Medley, 134 U.S. 160 (1890), the Court found a requirement that condemned inmates be kept in solitary confinement increased the punishment for murder violated the Ex Post Facto Clause because it increased the punishment for the crime. In the opinion Justice Miller recites the history of solitary confinement, beginning largely with the Walnut Street Penitentiary in Philadelphia which confined all inmates in solitary on the model of monasteries and drove many inmates mad.

Plaintiffs also rely on two out-of-circuit decisions. In Poland v. Stewart, 117 F.3d 1094 (9th Cir. 1997), the court noted that the Ex Post Facto Clause applies only to the legislative branch of government, but it has "a due process counterpart which prevents retroactive enlargement of the reach of criminal statutes." Id. at 1099, citing Bouie v. Columbia, 378 U.S. 347 (1964). In In re Lombardi, 741 F.3d 888 (8th Cir. 2014), following Malloy, supra, the court held that a change in method of execution did not violate the Ex Post Facto Clause: "That a former method of execution is no longer available does not mean that adoption of the next best method is an unconstitutional increase in punishment." Id. at 897.

Plaintiffs Tenth Cause of Action is not directed at any legislative change applied retroactively. Instead, it posits that midazolam is less likely to prevent an inmate from experiencing severe pain and needless suffering than the sodium thiopental or pentobarbital previously used but no longer available to Ohio. It is here that Fears v. Morgan, supra, has its impact, for the en banc court plainly held Plaintiffs Phillips, Otte, and Tibbetts had not proved that point. In the later case of In re Ohio Execution Protocol Litig. (Campbell & Tibbetts), ___ F.3d ___, 2018 U.S. App. LEXIS 2464 (6th Cir. Feb. 1, 2018), decided after briefing was complete on the instant Motion, the court held the additional evidence from the Otte execution, including tearing, also was insufficient to show an Eighth Amendment violation. It is in this sense that Fears v. Morgan is preclusive: it cuts the factual premise from under Plaintiffs' midazolam claim.

More fundamentally, Plaintiffs present no authority for the proposition that a particular mode of lethal injection which on its face does not increase the punishment for murder can be found to operate ex post facto because of changes in the drugs used. That is, Plaintiffs cannot eventually prevail on their Ex Post Facto claim by producing increased evidence of midazolam's deleterious effects, however successful they may eventually be in an Eighth Amendment attack on the drug.

The Execution Protocol does not increase the punishment for aggravated murder in Ohio as compared with its predecessor protocols. The Tenth Cause of Action should therefore be dismissed. Eleventh Cause of Action: Violation of the Bill of Attainder Clause

This cause of action has been withdrawn.

Twelfth Cause of Action: Eighth Amendment Violation

To be pleaded in individual complaints.

Thirteenth Cause of Action: Eighth Amendment Violation

To be pleaded in individual complaints.

Fourteenth Cause of Action: Substantive Due Process Violation

In their Fourteenth Cause of Action, Plaintiffs claim their executions under the Execution Protocol will violate their substantive right under the Fourteenth Amendment to be free from government actions that shock the conscience or are arbitrary and capricious, particularly government actions that violate federal or state drug law and human experimentation law. (Fourth Amended Omnibus Complaint, ECF No. 1252, PageID 45805-09, ¶¶1610-33).

Violations of state and federal law do not per se rise to the level of Due Process violations. Campbell & Tibbetts, supra, citing Levine v. Torvik, 986 F.2d 1506, 1515 (6th Cir. 1993). On this basis the Fourteenth Cause of Action should be dismissed for failure to state a claim upon which relief can be granted.

Fifteenth Cause of Action: Violation of RICO

The Fifteenth Cause of Action is pled only against the Drug Source Defendants and is not the subject of the instant Motion.

Sixteenth Cause of Action: Violation of the Ohio Corrupt Practices Act

The Sixteenth Cause of Action is pled only against the Drug Source Defendants and is not the subject of the instant Motion.

Seventeenth Cause of Action: Claims for Declaratory Judgment Under Ohio Law Against All Defendants, and for Injunctive Relief Under Ohio Law Against Drug Source Defendants For Violations of Ohio Law.

The Seventeenth Cause of Action is pled only against the Drug Source Defendants12 and is not the subject of the instant Motion.

Eighteenth Cause of Action: Violation of Ohio Product Liability Act (Ohio Revised Code § 2307.71 et seq.)

The Eighteenth Cause of Action is pled only against the Drug Source Defendants and is not the subject of the instant Motion.

Nineteenth Cause of Action: Violation of Ohio Consumer Sales Practices Act (Ohio Revised Code § 1345.01 et seq.) Against Drug Source Defendants

The Nineteenth Cause of Action is pled only against the Drug Source Defendants and is not the subject of the instant Motion.

Twentieth through Twenty-Ninth Causes of Action

These Causes of Action will be pleaded separately in Plaintiffs' Amended Individual Supplemental Complaints.

Thirtieth Cause of Action: Fourteenth Amendment Due Process Violation For Failure To Comply With Federal Investigational New Drug Application Regulations With Respect To The Method And Choice Of Drug To Be Used In Plaintiff's Execution.

In their Thirtieth Cause of Action, Plaintiffs alleged Defendants violated Plaintiffs due process rights under the Fourteenth Amendment when they failed to comply with federal investigational new drug application regulations in choosing drugs for use in executions. (Fourth Amended Omnibus Complaint, ECF No. 1252, PageID 45852-59, ¶¶ 1827-1868.)

Moving Defendants assert this cause of action is barred by the Court's prior decisions (Motion, ECF No. 1379, PageID 51965, citing In re: Ohio Execution Protocol Litig. (Tibbetts & Otte), 2017 U.S. Dist. LEXIS 107468 (S.D. Ohio July 12, 2017), and In re: Ohio Execution Protocol Litig. (Campbell), 2017 WL 3479589 (S.D. Ohio Aug. 14, 2017).

On the basis of the analysis in those two decisions, the Thirtieth Cause of Action should be dismissed for failure to state a claim upon which relief can be granted.

Thirty-First Cause of Action: Equal Protection Violations Related To Defendants' Failures To Comply With The IND Application Laws.

The Thirty-First Cause of Action should be dismissed on the same basis as the Thirtieth.

Thirty-Second Cause of Action: First Amendment Free Exercise Clause and RLUIPA Violation.

To be pleaded in the individual supplemental complaints.

Thirty-Third Cause of Action: Eighth Amendment Violations Based On Sure Or Very Likely Exposure To Severe Needless Physical Or Mental/Psychological Pain And Suffering Due To Plaintiff's Unique, Individual Characteristics And Application Of The Execution Protocol.

To be pleaded in the individual supplemental complaints.

Thirty-Fourth Cause of Action: Equal Protection Violations Related To Plaintiff's Unique, Individual Characteristics And Application Of The Law, Including DRC Defendants' Execution Protocol and Ohio's Execution Statute.

To be pleaded in the individual supplemental complaints.

Thirty-Fifth Cause of Action: Eighth Amendment Violation Based On Purposeful or Knowing Adoption of a Lethal Injection Protocol Using A Three-Drug Method With Midazolam As The First Drug That Will Cause Severe Physical Pain and Torturous Mental Anguish and Suffering.

To be pleaded in the individual supplemental complaints.

Thirty-Sixth Cause of Action: Eighth Amendment Violation Based On Purposeful or Knowing Adoption of a Lethal Injection Protocol Using Midazolam That Will Cause Severe Physical Pain and Torturous Mental Anguish and Suffering.

To be pleaded in the individual supplemental complaints.

Thirty-Seventh Cause of Action: Eighth Amendment Violations Based on DRC Defendants Resurrecting Their Abandoned Three-Drug Method Even Though They Know It Causes Needless Pain And Suffering, And Had Abandoned It, At Least In Part, For That Reason.

To be pleaded in the individual supplemental complaints.

Thirty-Eighth Cause of Action: Eighth Amendment Violation Based On Devolving Standards of Decency

To be pleaded in the individual supplemental complaints.

Thirty-Ninth Cause of Action: Eighth Amendment Violation Based On DRC Defendants' Use Of A Three-Drug Execution Method, Regardless Of The Identity Of The First Drug.

To be pleaded in the individual supplemental complaints.

Fortieth Cause of Action: Eighth Amendment Violation Based On DRC Defendants' Use Of A Three-Drug Execution Method With Midazolam As The First Of The Three Drugs.

To be pleaded in the individual supplemental complaints.

Forty-First Cause of Action: Eighth Amendment Violation Based On DRC Defendants' Use Of Midazolam In The Execution Protocol.

To be pleaded in the individual supplemental complaints.

Forty-Second Cause of Action: Eighth Amendment Violation Based On DRC Defendants [sic] Removal Of Any Required Concentration Of The Execution Drugs Which Is Removal Of A Safeguard That Makes It Sure Or Very Likely That Plaintiff Will Experience Severe Pain And Suffering.

To be pleaded in the individual supplemental complaints.

Forty-Third Cause of Action: The Doctrines Of Judicial Estoppel And/Or Judicial Admission Bar DRC Defendants From Using The Three-Drug Method Against Plaintiff.

Plaintiffs do not plead a Forty-Third Cause of Action. Plaintiffs prior judicial estoppel claim was found to be without merit by the Sixth Circuit. Fears v. Morgan (In re: Ohio Execution Protocol), 860 F.3d 881 (6th Cir. Jun 28, 2017)(en banc).

Forty-Fourth Cause of Action: Administrative Procedures Act Claims

Plaintiffs do not plead a Forty-Fourth Cause of Action.

Forty-Fifth Cause of Action: Eighth and Fourteenth Amendment Violations—A three-drug midazolam method of execution violates the Eighth Amendment's prohibition against cruel and usual punishment because it no longer comports with prevailing standards of decency, and thus its use as a method of execution must be categorically barred.

To be pleaded in the individual supplemental complaints.

Forty-Sixth Cause of Action: Ohio Corrupt Practices Act Claims Against Individual Defendants in Their Individual Capacity

Plaintiffs do not allege a Forty-Sixth Cause of Action.

Forty-Seventh Cause of Action: Equal Protection Clause Violation based on violations of Administrative Procedures Act

Plaintiffs do not allege a Forty-Seventh Cause of Action.

Conclusion

The Magistrate Judge respectfully recommends the Motion to Dismiss be granted in part and denied in part as set forth above.