\\ca6cin5\opinions\opins.txt\08a0368p-06.txt

RECOMMENDED FOR FULL-TEXT PUBLICATION UNITED STATES COURT OF APPEALS
Appeal from the United States District Court for the Southern District of Ohio at Columbus.
No. 08-00747—Gregory L. Frost, District Judge.
Before: SUHRHEINRICH, SILER, and GILMAN, Circuit Judges.
ON BRIEF: Kelly L. Schneider, Gregory William Meyers, Kimberly S. Rigby, OHIO PUBLIC
DEFENDER’S OFFICE, Columbus, Ohio, for Appellant. Matthew A. Kanai, Charles L. Wille,
OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
SUHRHEINRICH, J., delivered the opinion of the court, in which SILER, J., joined.
GILMAN, J. (p. 4), delivered a separate concurring opinion.
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The state of Ohio has scheduled the execution of Richard Cooey for 10:00 a.m. on Tuesday, October 14, 2008. On August 1, 2008, Cooey filed a § 1983 action in the district court, challengingOhio’s lethal-injection protocol. On September 30, 2008, the district court, Frost, J., issued an ordergranting the State’s motion to dismiss Cooey’s § 1983 action as time barred under this Court’sdecision in Cooey v. Strickland, 479 F.3d 412 (6th Cir. 2007). See Cooey v. Strickland, No. 2:08-cv-747, 2008 U.S. Dist. LEXIS 75630 (S.D. Ohio Sept. 30, 2008). Cooey timely appeals from thatdecision. We affirm the decision of the district court.
In 1986, Cooey was convicted of two counts of aggravated murder and sentenced to death.
See State v. Cooey, 544 N.E.2d 895 (Ohio 1989). Cooey sought state post-conviction relief withoutsuccess. See State v. Cooey, 1994 WL 201009 (Ohio Ct. App. May 25, 1994); State v. Cooey, 653N.E.2d 252 (Ohio 1995); and State v. Cooey, 655 N.E.2d 742 (1995). In October 1996, Cooey filed a § 2254 habeas petition. The district court denied the petition on September 4, 1997. See Cooey v. Anderson, 988 F. Supp. 1066 (N.D. Ohio 1997). This Courtgranted a COA on two issues and denied relief for both. Cooey v. Coyle, 289 F.3d 882 (6th Cir.),cert. denied, 123 S.Ct. 1620 (2003) (“Cooey I”). On June 10, 2004, Cooey filed a § 1983 challenge, alleging that the lethal-injection protocol constituted cruel and unusual punishment. The district court dismissed Cooey’s claims for failureto exhaust his administrative remedies. After exhausting them, Cooey re-filed his complaint onDecember 8, 2004. On March 28, 2005, the district court granted the State permission to pursue aninterlocutory appeal on the issue of the district court’s denial of the State’s motion to dismissCooey’s § 1983 claims.
On March 2, 2007, we issued Cooey v. Strickland, 479 F.3d 412 (6th Cir. 2007) (“Cooey II”) holding that Cooey’s claim was cognizable under § 1983, that the statute of limitations for such aclaim began to run upon conclusion of direct review of the death sentence, and that the limitationsperiod in Cooey’s case began no later than the date when the challenged protocol became the state’sexclusive execution method. A petition for rehearing en banc was denied. 489 F.3d 775 (6th Cir.
2007). The Supreme Court denied certiorari. See Biros v. Strickland, 128 S. Ct. 2047 (Apr. 21,2008). On August 1, 2008, Cooey filed another § 1983 action in district court, alleging that executing him under the established execution protocol, without deviating from it out ofconsideration of his particular medical conditions, will violate his Eighth and FourteenthAmendment rights. Specifically, he claims that: (1) Ohio’s lethal-injection protocol will violate hisright to be free from cruel and unusual punishment by failing to adequately address the asserteddifficulty in accessing his veins, (2) the Ohio protocol will violate his Eight Amendment rights byfailing to account for potential dosage insufficiency, and (3) the protocol will violate his right to dueprocess by unconstitutionally depriving him of a property interest in a quick and painless death. On the first issue, Cooey claims he had previously faced an execution date in July 2003, and that in preparation for that execution, medical staff at the correctional facility noted that “Cooey’sveins are ‘sparce’ [sic]” but that he “has good vein to right hand.” (Compl. 6.) Cooey furtherasserts that his medical expert noted that Cooey is morbidly obese and that if he has gained weightsince the 2003 execution date, “‘the single “good” vein on his right hand [] may now be obscured.’”Id. On the second issue, Cooey explains that he is taking Topamax, a treatment for clusterheadaches, which decreases his sensitivity to sodium thiopental (the anesthetic component of Ohio’sinjection protocol) and increases the risk that Cooey will be aware during the execution process.
(Compl. 7.) Cooey concedes in his complaint that if “a ‘full dose of thiopental [was] successfullydelivered into his circulation’ Plaintiff would be deeply anesthetized regardless of his treatment withTopamax,” but “it is also likely that his use of Topamax decreases the margin of safety and thereforemakes him more vulnerable to the consequences of a partially failed thiopental administration.” Id. Cooey also asserts that the dosage of sodium thiopental administered per the injection protocolmay be insufficient to adequately anesthetize him in light of his significant weight. Id. The state moved for dismissal under Fed. R. Civ. P. 12(b)(6), alleging that Cooey’s challenge was time barred under the Sixth Circuit’s construction of the statute of limitations for such § 1983claims established in Cooey II., 479 F.3d 412. In Cooey II, 479 F.3d 412, this Court held that a two-year statute of limitations applies to § 1983 claims in Ohio, and that such § 1983 claims began toaccrue upon conclusion of direct review in the state courts and when the plaintiff knew or had reasonto know about the act providing the basis of his or her injury. Id. at 422. As for when the plaintiffknew or should have known about the act providing the basis for injury, this Court offered possibledates: 1993, when Ohio adopted lethal injection as a method of execution, or 2001, when Ohio madelethal injection the exclusive method of execution. Id. This Court did not definitively resolve that question “because even under the later date, 2001, Cooey’s claim exceeds the two-year statute oflimitations deadline because his claim was not filed until December 8, 2004.” Id. The district court ruled that Cooey’s first claim respecting vein access was time barred under Cooey II. Cooey, 2008 U.S. Dist. LEXIS 75630, at *4. The district court noted that in July 2003,Cooey had advised prison personnel that he had an issue accessing his veins. Thus, the district courtconcluded that Cooey knew or should have known of the vein issue in July 2003, and the two yearstatute of limitations on the vein issue correspondingly expired by July 2005. Cooey argued that thevein issue was not time barred because he has gained weight since 2003, and that weight gain hasmade accessing his veins more difficult. The district court concluded, however, that the core ofCooey’s claim was still vein access, “and the fact that there may be less access today does notmitigate the fact that Cooey still knew of and could have filed suit over vein access prior to July2005.” Id. As to Cooey’s second claim, that his use of Topamax may decrease his sensitivity to sodium thiopental and cause him to be aware during the execution, the district court ruled that it was also
time-barred because the claim was contingent on his previously asserted claim of faulty
administration, which Cooey II found untimely. Id. at *7. 1 The district court reasoned that Cooey
is not claiming that the presence of Topamax itself creates a violation, but rather pleaded that “the
presence of Topamax in the inquiry . . . as an aggravating factor to faulty administration or
insufficient dosing.” Id. at *8. As such, Cooey’s claim was a challenge to the injection protocol
“that at its core is simply a reassertion of his 2004 challenge to the procedures and drug amount the
state employs.” Id.; see also Cooey II, 479 F.3d at 424 (explaining that among the “core complaints”
of Cooey’s 2004 case was “the use and dosage of sodium thiopental”). Thus, Cooey’s claims simply
added to the time-barred precursor claims that failed previously. Consequently, the district court
dismissed Cooey’s claims without reaching the merits, though the court expressed doubt whether
Cooey could demonstrate a likelihood of success on the claims. Cooey, 2008 U.S. Dist. LEXIS
75630, at *9.
Finally, the district court determined that Cooey’s statutory claim that he is entitled to a “quick and painless death” under Ohio Rev. Code § 2949.22(A) was time-barred, because § 2949.22contained the “quick and painless death” component since 1993, and therefore the time to challengeit expired at least at the same time his Eighth Amendment § 1983 claim did. Id. at *6 n.1. Having reviewed the parties’ briefs, the record, and the applicable precedent, most notably our decision in Cooey II, we conclude that the district court correctly held that each of Cooey’s“new” claims is time barred for the reasons stated in its opinion dated September 30, 2008. SeeCooey, 2008 U.S. Dist. LEXIS 75630. We therefore AFFIRM the decision of the district courtgranting Defendant’s motion to dismiss and denying Cooey’s motion for a preliminary injunctionas moot. 1The district court noted that the record did not disclose when Cooey began to take Topamax, but that the claim
was time-barred irrespective of when he started taking the drug. ______________________
CONCURRENCE
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RONALD LEE GILMAN, Circuit Judge, concurring. I join in the conclusion that the district court correctly applied the rule announced by a majority of this panel in Cooey v. Strickland, 479F.3d 412, 422 (6th Cir. 2007) (Cooey II ). That rule compels the conclusion that the statute oflimitations has expired on Cooey’s current as-applied challenges under 42 U.S.C. § 1983, as thedistrict court carefully explained in its opinion. I write separately, however, to reiterate my beliefthat Cooey II was wrongly decided for the reasons articulated in my dissent to that opinion.
Borrowing statute-of-limitations principles from the law of habeas corpus and applying them to the wholly distinct body of law surrounding § 1983 challenges creates anomalous results. Section1983 claims may well expire before they have properly ripened for careful review on the merits.
Cooey’s case provides a perfect example of why this is so. The Supreme Court has made clear thatdetails matter in assessing the constitutionality of a state’s lethal-injection method. See Baze v. Rees,128 S. Ct. 1520, 1533-34 (2008) (plurality opinion) (discussing various safeguards employed by thestate of Kentucky to ensure that adequate anesthesia is administered in advance of the lethal drugsthat would otherwise cause extreme pain, including the professional qualifications of the IV team,extensive practice sessions, and the insertion of back-up IV lines). Because details in the proceduremight interact with the medical condition of the specific condemned prisoner in constitutionallysignificant ways, and because the nature of these details may not be known when the prisoner’s stateappeals are exhausted, I continue to believe that the Cooey II rule is erroneous and unjust. Cooey’s§ 1983 challenges deserve a hearing on their merits. But because I am constrained by theprecedential law of the case, I nonetheless concur.

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