                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                    File Name: 19a0235p.06

                   UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT



 IN RE: OHIO EXECUTION PROTOCOL LITIGATION.             ┐
  ___________________________________________           │
                                                        │
 BENNIE ADAMS, et al.,                                  >      No. 19-3064
                                          Plaintiffs,   │
                                                        │
                                                        │
 WARREN K. HENNESS,                                     │
                                 Plaintiff-Appellant,   │
                                                        │
        v.                                              │
                                                        │
                                                        │
 MIKE DEWINE, et al.,                                   │
                              Defendants-Appellees.     │
                                                        ┘

                         Appeal from the United States District Court
                        for the Southern District of Ohio at Columbus.
                   No. 2:11-cv-01016—Michael R. Merz, Magistrate Judge.

                          Decided and Filed: September 11, 2019

                   Before: BOGGS, SILER, and SUTTON, Circuit Judges.
                                 _________________

                                        COUNSEL

ON BRIEF: Allen L. Bohnert, David C. Stebbins, Lisa M. Lagos, Paul R. Bottei, Adam M.
Rusnak, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE SOUTHERN
DISTRICT OF OHIO, Columbus, Ohio, Randall R. Porter, OFFICE OF THE OHIO PUBLIC
DEFENDER, Columbus, Ohio, James A. King, PORTER, WRIGHT, MORRIS & ARTHUR,
Columbus, Ohio, for Appellants. Benjamin M. Flowers, Michael J. Hendershot, OFFICE OF
THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees. Sarah K. Campbell,
OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Amicus
Curiae.
 No. 19-3064                     In re Ohio Execution Protocol Litig.                         Page 2


                                        _________________

                                             OPINION
                                        _________________

       SILER, Circuit Judge.       Warren Keith Henness appeals the district court’s decision
denying his request for injunctive relief and for a stay of execution. We AFFIRM.

                                                  I.
       Henness was convicted of several offenses, including aggravated murder, from conduct
occurring in 1992. State v. Henness, 679 N.E.2d 686, 691, 698 (Ohio 1997). Upon conviction,
the court sentenced Henness to death. Id. at 691.

       Henness subsequently filed suit challenging Ohio’s method of execution under 42 U.S.C.
§ 1983, claiming that it violated his constitutional rights. As his execution date approached,
Henness moved the district court to stay his execution and to preliminarily enjoin Ohio from
executing him. Specifically, he argued that the drug protocol Ohio intended to use to carry out
his death sentence—which is composed of 500 milligrams of midazolam, a paralytic agent, and
potassium chloride—was likely to cause him to suffer a painful death, and that, given the
availability of significantly less painful alternative methods of execution, the use of that protocol
would violate the Eighth Amendment’s prohibition on cruel and unusual punishment. Though
Henness presented expert testimony in support of his claim, the district court denied relief.
Henness now appeals certain of the court’s conclusions.

                                                  II.

       We review a district court’s decision to grant or deny a preliminary injunction for abuse
of discretion. Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 664 (2004). “Under this
standard, [we] review[] the district court’s legal conclusions de novo and its factual findings for
clear error.” Babler v. Futhey, 618 F.3d 514, 520 (6th Cir. 2010) (citation omitted).

       “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on
the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the
 No. 19-3064                     In re Ohio Execution Protocol Litig.                      Page 3


balance of equities tips in his favor, and that an injunction is in the public interest.” Glossip v.
Gross, 135 S. Ct. 2726, 2736 (2015) (citation omitted).

       Here, the district court’s decision focused on the question whether Henness demonstrated
a likelihood of success on the merits of his Eighth Amendment claim. Thus, our review is
limited to that question.

       In Glossip, the Supreme Court held that, to demonstrate a likelihood of success on the
merits of an Eighth Amendment challenge to a state’s method of execution, the plaintiff must:
(1) show that the intended method of execution is “sure or very likely to cause serious illness and
needless suffering,” and (2) “identify an alternative [method] that is feasible, readily
implemented, and in fact significantly reduces a substantial risk of severe pain.” Id. at 2737
(citations, brackets, internal quotations, and original emphasis omitted).

       Applying this framework, the district court found that Henness met his burden on
Glossip’s first prong but failed to propose a viable alternative method of execution as required by
the second. We review each prong separately.

       A.      Glossip’s First Prong: Needless Pain and Suffering

       With respect to Glossip’s first prong, the “relevant question” is whether the inmate has
met his “heavy burden to show that” the state’s chosen method of execution will cause serious
pain that the inmate “is sure or very likely to be conscious enough to experience.” Campbell v.
Kasich, 881 F.3d 447, 450 (6th Cir. 2018) (quoting Fears v. Morgan, 860 F.3d 881, 886 (6th
Cir.) (en banc), cert. denied, 137 S. Ct. 2238 (2017)).

       Here, the district court determined that Henness satisfied this burden. In reaching that
conclusion, the court first explained that Ohio’s protocol was sure or very likely to cause
Henness serious pain for two reasons. First, the court reasoned that the 500 milligram dose of
midazolam—the protocol’s initiatory drug—was likely to cause pulmonary edema (i.e., “chest
tightness, chest pain, and sensations of drowning, suffocating, and dying”), which, in the district
court’s view, qualifies as the type of serious pain prohibited by the Eighth Amendment. Second,
the court noted that the combination of the paralytic agent and potassium chloride would
 No. 19-3064                     In re Ohio Execution Protocol Litig.                    Page 4


certainly cause a fully conscious person to endure needless suffering. The court then concluded
that, “[b]ecause midazolam has no analgesic properties,” it could not suppress Henness’s
consciousness deeply enough to prevent him from experiencing either of the identified types of
pain.

        We disagree. As an initial matter, neither pulmonary edema nor the symptoms associated
with it qualify as the type of serious pain prohibited by the Eighth Amendment. Consider:
midazolam may cause Henness to suffocate. But the Eighth Amendment only prohibits forms of
punishment that seek to intensify an inmate’s death by “superadd[ing]” feelings of “terror, pain,
or disgrace.” Bucklew v. Precythe, 139 S. Ct. 1112, 1124 (2019) (citations and internal quotation
marks omitted). Consistent with this understanding, the Supreme Court recently reasoned that
the fact that an inmate sentenced to death by hanging might slowly suffocate to death is not
constitutionally problematic. Id. Because suffocation does not qualify as “severe pain and
needless suffering,” it follows that Ohio’s use of midazolam—which could cause pulmonary
edema, i.e., suffocation—is not constitutionally inappropriate.     The district court therefore
clearly erred in concluding to the contrary.

        Further, the district court erred in finding that Henness met his burden of proving that
midazolam is incapable of suppressing his consciousness enough to prevent him from
experiencing—at a constitutionally problematic level—the pain caused by the combination of the
paralytic agent and potassium chloride. Indeed, though we have concluded that the combination
of those two substances “would cause severe pain to a person who is fully conscious,” we have
also recognized that midazolam is capable of altering an inmate’s ability to subjectively
experience pain.    See Fears, 860 F.3d at 886, 888 (noting that “experts . . . agree[] that
midazolam is sometimes used alone for intubation”). That said, the relevant inquiry is whether
an inmate injected with 500 milligrams of midazolam would subjectively experience
unconstitutionally severe pain—an inquiry that Henness has failed to prove should be answered
in his favor. To be sure, the bulk of Henness’s evidence focuses on the fact that midazolam is
incapable of rendering an inmate insensate to pain. But “the Eighth Amendment does not
guarantee a prisoner a painless death,” so it is immaterial whether the inmate will experience
some pain—as noted, the question is whether the level of pain the inmate subjectively
 No. 19-3064                      In re Ohio Execution Protocol Litig.                     Page 5


experiences is constitutionally excessive. See Bucklew, 139 S. Ct. at 1124. And the fact that
midazolam may not prevent an inmate from experiencing pain is irrelevant to whether the pain
the inmate might experience is unconstitutional. Without evidence showing that a person deeply
sedated by a 500 milligram dose of midazolam is still “sure or very likely” to experience an
unconstitutionally high level of pain, Henness has not met his burden on this prong, and the
district court clearly erred in concluding otherwise.

       B.      Glossip’s Second Prong: Existence of Available Alternative

       Though we disagree with the district court’s analysis on Glossip’s first prong, we agree
that Henness failed to meet his burden on Glossip’s second prong. The second prong requires an
inmate to: (1) identify “an alternative method of execution” that is “‘available,’ ‘feasible,’ . . .
can be ‘readily implemented,’” Fears, 860 F.3d at 890 (quoting Glossip, 135 S. Ct. at 2737), and
that will “significantly reduce [the] substantial risk of severe pain” associated with the state’s
existing method, and (2) prove that the state lacks a “‘legitimate’ reason for declining to switch
from its current method of execution” to the proposed alternative, Bucklew, 139 S. Ct. at 1128-
30 (citations omitted). To meet this burden, “the inmate’s proposal must be sufficiently detailed
to permit a finding that the State could carry it out ‘relatively easily and reasonably quickly.’”
Id. at 1129 (citation omitted).

       Under this standard, Henness’s failure to satisfy Glossip’s first prong necessarily means
that he cannot demonstrate a likelihood of success on the second prong. Fears, 860 F.3d at 890.
In other words, because Henness has not shown that Ohio’s existing method of execution causes
severe pain (discussed above), it is impossible for him to show that the existence of an
alternative method of execution would “significantly reduce [the] substantial risk of severe pain”
caused by the existing method. Bucklew, 139 S. Ct. at 1128-30 (citations omitted).

       But even if we were to agree with Henness that Ohio’s method of execution is very likely
to cause either of the types of severe pain identified by Henness and the district court, we would
still find that Henness has failed to carry his burden under Glossip’s second prong. This is
because Henness’s proposed alternative method—death by secobarbital—is not a viable
alternative. As an initial matter, the record demonstrates that death by secobarbital is not
 No. 19-3064                    In re Ohio Execution Protocol Litig.                     Page 6


“feasible” because secobarbital can, in some instances, take days to cause death and Henness has
failed to propose any procedures detailing how an execution team might deal with such a
prolonged execution.    Setting that deficiency aside, Henness’s proposal still fails.   As the
Supreme Court recently explained, a state may decline to utilize an alternative method of
execution—even if it is otherwise feasible and capable of being readily implemented—so long as
the state has a legitimate reason for doing so, and “choosing not to be the first [state] to
experiment with a new method of execution is a legitimate reason to reject it.” Bucklew, 139 S.
Ct. at 1128-30 (internal quotation marks omitted). It follows that, because no other state uses
secobarbital to carry out an execution, Ohio may decline to implement it.

                                               III.

       As a final point, we note that Henness’s last-minute motion to dismiss on mootness and
ripeness grounds is without merit. Contrary to his contentions, Ohio has said that it intends to
resume executions with this protocol if we approve. See, e.g., Andrew J. Tobias, Gov. Mike
DeWine Freezes All Ohio Executions While New Method Developed, Cleveland.com (February
19, 2019), https://perma.cc/2HUL-HBUG (last accessed August 9, 2019). Thus, his challenge is
not moot. And his challenge is ripe—notwithstanding the fact that his execution has been
delayed.

                                               IV.

       In sum, though we disagree with the district court’s analysis regarding Glossip’s first
prong, we nonetheless AFFIRM its decision denying Henness’s requests to stay his execution
and temporarily enjoin Ohio from executing him. Further, we DENY Henness’s motion to
dismiss.
