Otte v. Kasich

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0519n.06

Nos. 17-3800/3834

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

In re: OHIO EXECUTION PROTOCOL )
LITIGATION )
) FILED
——————————————————- ) Sep 07, 2017
) DEBORAH S. HUNT, Clerk
GARY OTTE; RAYMOND TIBBETTS; and )
ALVA CAMPBELL, JR., )
)
Plaintiffs-Appellants, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
v. ) THE SOUTHERN DISTRICT OF
) OHIO
JOHN KASICH, Governor, State of Ohio; GARY )
C. MOHR, Director, ODRC; DONALD )
MORGAN, Warden, Southern Ohio Correctional )
Facility; ANONYMOUS EXECUTION TEAM )
MEMBERS 1-50, c/o Southern Ohio Correctional )
Facility; WARDEN, FRANKLIN MEDICAL )
CENTER; STEPHEN GRAY, Chief Counsel, )
ODRC; CHARLOTTE JENKINS; WARDEN, )
OHIO STATE PENITENTIARY; RICHARD )
THEODORE, Pharmacist, c/o ODRC; EDWIN C. )
VOORHIES, JR., Managing Director of )
Operations, ODRC, )
)
Defendants-Appellees. )

Before: COLE, Chief Judge; SUTTON and GRIFFIN, Circuit Judges.

PER CURIAM.
Introduction. In this § 1983 action, three death-penalty inmates challenged Ohio’s
execution protocol under the Eighth and Fourteenth Amendments and added a pendent state-law
claim alleging that the five defendants (all involved in implementing Ohio’s capital-punishment
system) will violate the Ohio Corrupt Practices Act by using controlled substances without a
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prescription in the next execution. This court, sitting en banc, recently rejected the federal
constitutional challenge to the protocol. See In re: Ohio Execution Protocol, 860 F.3d 881 (6th
Cir.) (en banc), cert denied, 137 S. Ct. 2238 (2017).
At issue today is the state law claim. The district court did not reach the merits of this
claim and dismissed it for lack of jurisdiction and failure to state a claim, leaving the plaintiffs
free to pursue relief under state law in the state courts. We agree and affirm the dismissal of the
claim.
The first reason for not exercising jurisdiction over this state law claim is sovereign
immunity. “[A] claim that state officials violated state law in carrying out their official
responsibilities is a claim against the [s]tate that is protected by the Eleventh Amendment.”
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121 (1984). That is today’s claim.
Plaintiffs argue that individuals employed or hired by the state will violate state law in carrying
out core responsibilities on behalf of the state, namely the implementation of Ohio’s system of
capital punishment. In word and deed, Pennhurst bars the claim, as the district court correctly
held.
Nor do any of the exceptions to the states’ sovereign immunity apply here. The states,
like the federal government, are free to set their own terms for suing and being sued. To
preserve the supremacy of federal law, however, the United States Supreme Court has created
two pertinent exceptions to these principles (and without regard to any waiver of immunity) for
cases involving state action, most notably by allowing injunction actions against state officials,
see Ex Parte Young, 209 U.S. 123 (1908), and by allowing money-damages against state officials
for violating clearly established principles of federal law, see Monroe v. Pape, 365 U.S. 167, 172
(1961); cf. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). But these exceptions to
the normal rules—that the states and federal government may set their own terms for being
sued—do not apply to a federal court action to vindicate state law. The plaintiffs cite no waiver
of Ohio’s immunity from suit that would allow this action in federal court, and Supreme Court
precedents do not create one.
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The plaintiffs’ claim for money damages comes with its own limitation—that any such
claim must first proceed through the state court of claims. The plaintiffs have filed no such
action. All of this requires the dismissal of the case.
Even if all of this were not true, 28 U.S.C. § 1367 does not require federal courts to hear
pendent state law claims. For many of the reasons just given and many others elaborated below,
this is an appropriate setting for dismissing the state law claim (without prejudice) and permitting
the plaintiffs to refile it in state court.
Background. Plaintiffs Gary Otte, Raymond Tibbetts, and Alva Campbell, Jr., are Ohio
death-penalty inmates. Otte has an execution date set for September 13, 2017. Campbell has an
execution date of November 15, 2017. And Tibbetts’s execution is scheduled for February 13,
2018.
These appeals are the latest in a series of challenges to Ohio’s lethal injection protocol.
Most recently, this court rejected an Eighth Amendment challenge to the current version of the
protocol. See In re: Ohio Execution Protocol, 860 F.3d 881. In 2016, Otte and Tibbetts each
filed Fourth Amended Complaints and a Joint Supplement to the Fourth Amended Complaints,
which raised a claim under the Ohio Corrupt Practices Act, the Forty-Ninth Cause of Action.
The district court subsequently dismissed a number of claims from these complaints, including
this state law claim, for lack of subject matter jurisdiction and failure to state a claim. In re:
Ohio Execution Protocol Litigation, No. 2:11-cv-1016, 2017 WL 2964901 (S.D. Ohio July 12,
2017). Otte and Tibbetts moved the court to reconsider its dismissal of the state law claim, but
the court denied their motion. In re: Ohio Execution Protocol Litigation, No. 2:11-cv-1016,
2017 WL 3027956 (S.D. Ohio July 17, 2017). Otte and Tibbetts moved the court to reconsider
its decision a second time. The court again denied their motion to reconsider but granted their
request to enter its final judgment regarding the state law claim, thereby allowing their current
appeal (No. 17-3800). In re: Ohio Execution Protocol Litigation, No. 2:11-cv-1016, 2017 WL
3167650 (S.D. Ohio July 25, 2017).
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In a separate Fourth Amended Complaint, Campbell raised a similar state law claim as
his Forty-Sixth Cause of Action. Relying on the same reasoning that formed the basis of its
dismissal of Otte and Tibbetts’s state law claims, the district court dismissed Campbell’s similar
claim. In re: Ohio Execution Protocol Litigation, No. 2:11-cv-1016 (S.D. Ohio Aug. 2, 2017).
As with Otte and Tibbetts’s case, the court entered final judgment for this claim, and Campbell
has filed a timely appeal (No. 17-3834). We consolidated the appeals.
Discussion. Seeking monetary, declaratory, and injunctive relief, the plaintiffs sued
Richard Theodore (a pharmacist who will release the lethal injection drugs to the Execution
Team) and Execution Team Members 17, 21, 31, and 32 (who are paramedics or EMTs) in their
individual capacities. The plaintiffs alleged that the defendants’ participation in their executions
would violate the Ohio Corrupt Practices Act. The district court concluded that the plaintiffs’
injunction and declaratory claims were barred by the Eleventh Amendment and that the money-
damages claim had to be presented in the first instance to the Ohio Court of Claims.
The district court properly determined that the plaintiffs’ claims for declaratory and
injunctive relief were barred by the Eleventh Amendment. That Amendment prohibits suits
naming the state or one of its agencies or departments as the defendant, regardless of the nature
of the relief sought. Pennhurst, 465 U.S. at 100. This immunity from suit extends to state
officials when the lawsuit is in fact against the state. Will, 491 U.S. at 71; Pennhurst, 465 U.S. at
101-02. Under Ex Parte Young, 209 U.S. 123 (1908), a federal court may issue prospective
injunctive and declaratory relief compelling a state official to comply with federal law. See
Edelman v. Jordan, 415 U.S. 651, 664 (1974). But that exception does not extend to prospective
injunctive or declaratory relief based on alleged violations of state law. As the Court observed in
Pennhurst, 465 U.S. at 106:
A federal court’s grant of relief against state officials on the basis of state law,
whether prospective or retroactive, does not vindicate the supreme authority of
federal law. On the contrary, it is difficult to think of a greater intrusion on state
sovereignty than when a federal court instructs state officials on how to conform
their conduct to state law. Such a result conflicts directly with the principles of
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federalism that underlie the Eleventh Amendment. We conclude that Young and
Edelman are inapplicable in a suit against state officials on the basis of state law.

See also Ernst v. Rising, 427 F.3d 351, 368 (6th Cir. 2005) (en banc) (“[T]he states’
constitutional immunity from suit prohibits all state-law claims filed against a [s]tate in federal
court, whether those claims are monetary or injunctive in nature.”); Turker v. Ohio Dep’t of
Rehab. & Corr., 157 F.3d 453, 456-57 (6th Cir. 1998) (“It is . . . well-established that a federal
court cannot entertain a lawsuit against state officials for violations of state law unless the state
has waived its immunity under the Eleventh Amendment. Ohio has not waived that immunity.”
(internal citations omitted)). This conclusion applies even if, as in the present case, supplemental
jurisdiction otherwise exists. McNeilus Truck & Mfg., Inc. v. Ohio ex rel. Montgomery, 226 F.3d
429, 438 (6th Cir. 2000). Because the plaintiffs sought to obtain injunctive and declaratory relief
based on the Ohio Corrupt Practices Act, a state law, the district court properly concluded that
sovereign immunity barred their claims.
The plaintiffs try to distinguish Pennhurst on the ground that they are suing the
defendants in their individual, not official, capacities. But Pennhurst explained that, when
plaintiffs sue state officials for violations of state law, “relief sought nominally against an officer
is in fact against the sovereign if the decree would operate against the latter” and when “the state
is the real, substantial party in interest.” 465 U.S. at 101 (citations omitted). This is also the case
when the plaintiffs “claim that state officials violated state law in carrying out their official
responsibilities.” Id. at 121. Sovereign immunity thus bars a plaintiff from using state law to
enjoin state officials from carrying out official responsibilities even when the officials are sued in
their individual capacities. Williams v. Kentucky, 24 F.3d 1526, 1531, 1543 (6th Cir. 1994).
The plaintiffs do not contend that the officials committed any wrong against the plaintiffs
independent of their implementation of state law. Their requested relief as a practical matter
would prohibit the state from carrying out its execution procedures by prohibiting its employees
from administering the execution drugs. Where, as here, “the relief sought . . . has an impact
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directly on the [s]tate itself,” the plaintiffs’ lawsuit against the state officers should be treated as
a suit against the state. Pennhurst, 465 U.S. at 117.
Under the plaintiffs’ theory—that the Eleventh Amendment does not apply so long as
plaintiffs sue state officials in their individual capacity—“the Eleventh Amendment would have
force only in the rare case in which a plaintiff foolishly attempts to sue the [s]tate in its own
name” or state officials in their “official” capacity. Pennhurst, 465 U.S. at 116. The plaintiffs’
“exception . . . would swallow the general rule that a suit is against the [s]tate if the relief will
run against it.” Id. The Court rejected a similar end run in Pennhurst. Id.
The plaintiffs argue that Pennhurst distinguished between individual and official capacity
suits. That is true but not helpful. Pennhurst “distinguished . . . cases seeking money damages
against the individual officer in tort, and those seeking injunctive relief against the officer in his
official capacity.” 465 U.S. at 111 n.21. The latter “sought relief against the sovereign, while
the former might not.” Id. Whether one seeks relief against the officer in his official capacity
(and hence the sovereign), the Court explained, “turns on whether the defendant state official
was empowered to do what he did, i.e., whether, . . . [the challenged action] was action within
the scope of his authority.” Id. at 112 n.22. The opinion shows that immunity turns on
functional reality, not labels, and thus does not turn on whether the plaintiffs label their claim as
an official-capacity or individual-capacity suit.
The plaintiffs demur. Hafer v. Melo, 502 U.S. 21 (1991), they say, explained that the
phrase “‘acting in their official capacities’ is best understood as a reference to the capacity in
which the state officer is sued, not the capacity in which the officer inflicts the alleged injury.”
Id. at 26. But Hafer addressed whether officers sued in their individual capacities are “persons”
subject to suit under § 1983. It did not mention Pennhurst or for that matter address when a
state-law action against a state official is functionally an action against the state.
The plaintiffs claim that several circuit court cases lead to a different conclusion. But
none is on point. Some deal with violations of federal law. See Spruyette v. Walters, 753 F.2d
498 511–14 (6th Cir. 1985); Ying Jing Gang v. City of New York, 996 F.2d 522, 529 (2d Cir.
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1993). Others deal with damages. See Guillemard-Ginorio v. Contreras-Gomez, 585 F.3d 508,
532 (1st Cir. 2009); Pena v. Gardner, 976 F.2d 469, 473 (9th Cir. 1992). None of these cases
holds that federal courts may enjoin state officials for violating state law while carrying out
official state law duties.
The plaintiffs’ separate request for monetary relief under state law does not fix these
problems or otherwise allow the action to proceed. When faced with a claim of immunity to a
supplemental state claim, a federal court must look to the appropriate state law to ascertain the
nature of the immunity. Cullinan v. Abramson, 128 F.3d 301, 312 (6th Cir. 1997). And Ohio
has not consented to state law actions against the State of Ohio and state officials outside of its
own courts. See Jones v. Hamilton Cty. Sheriff, 838 F.3d 782, 786 (6th Cir. 2016). Ohio Rev.
Code § 9.86 provides that no “employee shall be liable in any civil action that arises under the
law of this state for damage or injury caused in the performance of his duties, unless the . . .
employee’s actions were manifestly outside the scope of his employment or official
responsibilities, or unless the officer or employee acted with malicious purpose, in bad faith, or
in a wanton or reckless manner.” Ohio Revised Code § 2743.02(F), in turn, establishes that
lawsuits alleging damages against state employees “shall first be filed against the state in the
court of claims that has exclusive, original jurisdiction to determine, initially, whether the officer
or employee is entitled to personal immunity under section 9.86.” Thus, “Ohio law requires that,
as a condition precedent to asserting a cause of action against a state employee in his individual
capacity, the Court of Claims must first determine that the employee is not entitled to the
immunity provided for in Revised Code section 9.86.” Haynes v. Marshall, 887 F.2d 700, 704
(6th Cir. 1989); see also McCormick v. Miami Univ., 693 F.3d 654, 665 (6th Cir. 2012).
The plaintiffs counter that some of the defendants are not entitled to immunity under
Ohio law because they do not qualify as state employees. While the plaintiffs acknowledge that
defendants Theodore and Execution Team Member 17 are state employees, they maintain that
Team Members 21, 31, and 32 do not have the same status. Not so. Under Ohio Revised Code
§ 109.36(A)(1)(b), a “person that, at the time a cause of action against the person . . . arises, is
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rendering medical . . . services pursuant to a personal services contract or purchased service
contract with a department, agency, or institution of the state” is an “employee.” The defendants
qualify as “employees” under § 109.36(A)(1)(b) because they render medical services. Section
109.36 does not define the term “medical,” but the services that the defendants provide as EMTs
and paramedics qualify as “medical” under any reasonable sense of the term. The defendants,
for example, are responsible for “the establishing and maintenance of an intravenous line and the
administration of drugs through that line.” And Ohio law considers the administration of drugs
and intravenous fluids “emergency medical services.” See Ohio Rev. Code. § 4765.39.
The plaintiffs also invoke the general proposition that a state cannot hinder a federal
court’s jurisdiction over a cause of action that otherwise restricts jurisdiction to a specialized
state court. See Marshall v. Marshall, 547 U.S. 293, 314 (2006); Williams v. Duke Energy Int’l,
Inc., 681 F.3d 788, 798 (6th Cir. 2012); Davet v. City of Cleveland, 456 F.3d 549, 554 (6th Cir.
2006); Superior Beverage Co. v. Schieffelin & Co., 448 F.3d 910, 917 (6th Cir. 2006). But none
of these cases involved a state’s invocation of its sovereign immunity. Ohio has not attempted
(by statute, court decision, or otherwise) to restrict the ability of federal courts to hear certain
types of cases. It has just set forth the terms for its limited waiver of immunity for actions by its
employees.
Last but not least, we are free to affirm the district court’s decision on alternative
grounds. Much of what we have said so far explains why it makes little sense for the federal
courts to entertain this state law claim concerning a core matter of state law. Section 1367
permits federal courts to entertain jurisdiction over pendent state law claims. But it does not
require them to do so, least of all after the core federal claim already has been rejected on the
merits. See 28 U.S.C. § 1367(c). Even if sovereign immunity and Ohio law did not bar the
plaintiffs’ claim, we would decline to exercise supplemental jurisdiction over the claim. See Doe
v. Sundquist, 106 F. 3d 702, 708 (6th Cir. 1997).
For these reasons, we affirm the dismissal of the plaintiffs’ state law claim without
prejudice, permitting them to refile the claim in state court.
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SUTTON, Circuit Judge, concurring. I concur in full in the per curiam opinion, but write

separately to make one point.

Williams v. Kentucky, 24 F.3d 1526, 1543 (6th Cir. 1994), seems to say that federal

courts may order state officials to conform to state law through a lawsuit for money damages if

the lawsuit names the state employees in their individual capacities and without regard to

whether the State has consented to the lawsuit. I say “seems” because it is not clear from the rest

of Williams that the plaintiffs sought money damages, as opposed to injunctive relief, under state

law. I am skeptical about this statement in Williams, whether dictum or not, and skeptical of the

statements of a few other courts of appeals to the same effect, see, e.g., Guillemard-Ginorio v.

Contreras-Gomez, 585 F.3d 508 (1st Cir. 2009); Wilson v. UT Health Center, 973 F.2d 1263 (5th

Cir. 1992); Pena v. Gardner, 976 F.2d 469 (9th Cir. 1992).

A core feature of sovereignty is the state’s authority to decide when and where it can be

sued. Alden v. Maine, 527 U.S. 706, 713 (1999). Ohio has not consented to allow its employees

to be sued in federal court for actions taken in the scope of their employment. We know that a

claimant cannot evade that bar by seeking injunctive or declaratory relief against a state official

acting within the scope of his authority, whether the action names the state employee in their

individual or official capacity. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,

106 (1984).

Pennhurst, it’s true, did not address today’s setting: an individual capacity money

damages action. But I see no reason why the rationale of the decision does not apply equally, if

not more forcefully, to a state law money damages action against a state employee. The essential

insight of the decision is that federal courts do not have authority to command the States to

follow their own laws. Id. at 100. “When a suit is brought only against state officials,” it says,
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we apply a functional test to see whether “the state is the real, substantial party in interest.” Id. at

101 (quotation omitted). That functional test covers today’s case. The plaintiffs have not sued

these individuals for causing a car accident on their way to fetching a gallon of milk. They have

sued them for actions taken under state law, which is why the Ohio Attorney General represents

them. When it comes to the comity and sovereignty considerations of Pennhurst, the State

surely is the real party in interest when the plaintiff sues the state official for actions taken within

the scope of his authority. Id. at 121.

When a federal court enjoins a state official from doing his job, Pennhurst says that the

State is the real party in interest because the lawsuit will prevent the state employees from

performing their official duties. The same principle applies when a federal court tells a state

official that he owes damages under state law for doing his job. Doctrines that turn on

“individual capacity” and “official capacity” make sense in the context of actions designed to

require the States and their employees to comply with federal law. See, e.g., Kentucky v.

Graham, 473 U.S. 159, 167–68 (1985); Hafer v. Melo, 502 U.S. 20, 30 (1991). But they make

far less sense, indeed little sense, in the context of federal-court actions designed to bring States

to heel under their own law.

A state official who violates the United States Constitution, Ex parte Young says, is not

acting on behalf of the State because States cannot authorize unconstitutional action. 209 U.S.

123, 160 (1908). For that reason, an official who acts unconstitutionally is “stripped of his

official or representative character and is subjected in his person to the consequences of his

individual conduct.” Id. (emphasis added). But Pennhurst explains that the “entire basis” for the

Ex parte Young fiction “disappears” when a plaintiff alleges that a state official has violated state

(rather than federal) law. 465 U.S. at 106. “Entire basis” exactly. That’s because the Ex parte
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Young fiction serves only to “vindicate federal rights and hold state officials responsible to ‘the

supreme authority of the United States.’” Id. at 105 (emphasis added). In marked contrast, the

“need to reconcile competing [federal and state] interests is wholly absent . . . when a plaintiff

alleges that a state official has violated state law.” Id. at 106.

Accordingly, when a plaintiff alleges that a state official has violated state law, there’s no

reason to assume (as we do when a plaintiff alleges that a state official has violated federal law)

that an “individual capacity” suit is one against the official in his person rather than one against

the State. As in Pennhurst, then, so too here: When a state employee acts within the scope of

his authority, a state-law suit against him in federal court is functionally a lawsuit against the

State for sovereign immunity purposes, regardless of whether the suit seeks damages or

injunctive relief.

This straightforward approach leads to a straightforward rule and exception. The rule: If

the plaintiff sues a state official under state law in federal court for actions taken within the scope

of his authority, sovereign immunity bars the lawsuit regardless of whether the action seeks

monetary or injunctive or declaratory relief. The exception: If the plaintiff sues the official for

actions beyond the official’s authority, the State’s sovereign immunity does not apply. The rule,

not the exception, applies here.