Full opinion text
OPINION AND ORDER GREGORY L. FROST, District Judge. It is the policy of the State of Ohio that the State follows its written execution protocol, except when it does not. This is nonsense. This matter is before the Court for consideration of Plaintiff Kenneth Smith’s motion for a temporary restraining order and a preliminary injunction (ECF No. 908), Defendants’ memorandum in opposition (ECF No. 920), Plaintiffs reply memorandum (ECF No. 923), Defendants’ incorporated motion for summary judgment (ECF No. 919), Plaintiffs incorporated summary judgment memorandum in opposition (ECF No. 925), and Plaintiffs supplemental memorandum related to the June 29, 2011 hearing (ECF No. 944). The issue presented by this briefing is relatively simple: has Plaintiff demonstrated that he is likely to succeed in establishing that the Ohio has an unconstitutional execution policy so that he deserves a stay of execution that will afford him the chance to prove his case? Because Plaintiff has demonstrated a substantial likelihood of succeeding on his Equal Protection claim, this Court finds the motion for injunctive relief well taken. Thus, it is ORDERED, ADJUDGED, and DECREED that the State of Ohio, and any person acting on its behalf, is hereby STAYED from implementing an order for the execution of Kenneth Smith issued by any court of the State of Ohio until further Order from this Court. I. Background The captioned consolidated cases are 42 U.S.C. § 1983 civil rights actions that challenge multiple facets of the lethal injection protocol used by the State of Ohio. Plaintiff Kenneth Smith is an inmate on Ohio’s death row who is set to be executed on July 19, 2011. On May 10, 2011, Plaintiff filed a motion for leave to file an amended complaint (ECF No. 907) and a motion for a temporary restraining order and preliminary injunction to stay his execution (ECF No. 908). Pursuant to S.D. Ohio Civ. R. 65.1(a), the Court therefore held an informal preliminary conference with the parties on May 11, 2011, at which the Court set a hearing date. (ECF No. 911.) This Court subsequently granted Plaintiffs unopposed motion for leave to file his second amended complaint. (ECF No. 912.) In that pleading, Plaintiff asserts Eighth Amendment and Fourteenth Amendment challenges to Ohio’s lethal injection practices via § 1983. (ECF No. 913.) On June 29, 2011, the Court held a hearing on Plaintiffs motion for injunctive relief. Both sides presented testimony, which the Court summarizes below. By order of this Court and by continuing agreement of the parties, all references to Ohio’s execution team members are again by generic identifiers established by the parties and employed to address anonymity and safety concerns. A. Stipulations Prior to the commencement of the hearing on June 29, 2011, the parties submitted a series of stipulations. The stipulations, which were admitted into evidence at the hearing as Joint Exhibit 1, are as follows: The parties agree and stipulate to the following. 1. The modifications for Plaintiff Kenneth Smith’s scheduled execution include: a. that the head of the “lethal injection bed” will be modified to include a 60-degree wedge-shaped cushion, (see Attachment 1), so that Smith’s upper body will be elevated; b. that a soft cuff will be used to restrain Smith’s arm where primary IV access is obtained, because the wedge-shaped cushion on the modified “lethal injection bed” prevents the ususal arm restraint; c. that Smith will have the wedge-shaped cushion available to him for the bed in the holding cell in the Death House prior to his execution and while he is located at Southern Ohio Correctional Facility (“SOCF”); d. that Smith will have available to him, for his optional use, a second wedge-shaped cushion, (see Attachment 2), or a mattress pad with a built in pillow, (see Attachment 3), that elevates him at a smaller angle, both of which have already been procured by and are available at SOCF; e. that SOCF will provide an operational, portable suctioning machine to Smith, and said machine will be available at hand to Smith while at SOCF, including while in his holding cell in the Death House and in the execution chamber during the execution; f. that Smith’s trachea-esophageal prosthesis will be replaced sometime within seven days before his scheduled execution, and this is being done to accommodate Smith’s request, which he made upon representation that such action will help prevent leakage or other issues; g. that a microphone will be held near Smith’s head throughout the execution process in order for him to access counsel if necessary by speaking into the microphone; and h. that during the process of establishing IV access Smith will be permitted to have one hand free to enable him to talk and regulate his breathing through his stoma. 2. Counsel for Kenneth Smith, Attorney Carol Wright, has inspected the wedge-shaped cushion, (see Attachment 1), the second wedge, (see Attachment 2), and the mattress pad with a built-in pillow, (see Attachment 3), finding each and every one suitable. 3. Since the execution of John Fautenberry on July 14, 2009, the medical team personnel involved in establishing peripheral IV access has consisted of TM # 9, TM # 17, and TM # 21, or some combination thereof. 4. It is currently planned that TM # 9, TM # 17, and TM # 21, or some combination thereof, will comprise the medical team personnel to establish! ] peripheral IV access during the scheduled execution of Kenneth Smith on July 19, 2011. 5. During the execution of Kenneth Biros on December 8, 2009, approximately 30 minutes transpired from the initial attempt to the actual establishing of peripheral IV access. 6. TM # 9’s participation has been and almost certainly will continue to be limited to establishing peripheral IV access in the condemned prisoner. 7. Before the execution of Vernon Smith, TM # 17 was hospitalized as a result of a vehicle accident. Consequently, TM # 17 was not present the day before or the day of Vernon Smith’s execution. 8. TM # 21 and TM # 9 were in the equipment room during the administration of the lethal drugs to Vernon Smith. 9. When TM #21 exited the equipment room to enter the execution chamber after administration of the lethal drugs to Vernon Smith, TM # 9 remained in the equipment room. 10. TM # 9 never entered the execution chamber during Vernon Smith’s execution. 11. In addition to Carol Reeder, two persons signed the document entitled “Order for Execution Medications” related to Vernon Smith’s execution. 12. Former SOCF Warden Edwin Voorhies does not meet the qualifications set forth in the current policy to be considered a member of the medical team. 13. Charles G. Miller does not meet the qualifications set forth in the current policy to be considered a member of the medical team. 14. TM # 10 does not meet the qualifications set forth in the current policy to be considered a member of the medical team. 15. TM # 10 does not have an individual DEA Registration Number or an Ohio license number equivalent. 16. A EA Individual Registration Number authorizes the individual registrant to receive, order, possess, and distribute controlled substances. 17. Dr. Carmelita Bautista is not and never has been a member of the execution team. 18. Dr. Bautista has never participated in any execution rehearsal sessions for any inmates. 19. There is no institutional pharmacy or pharmacist physically located at SOCF. 20. TM # 10 signed the Order for Execution Medications document before the Spisak execution. 21. Nancy D. Behn is an account clerk at SOCF. 22. Nancy D. Behn does not meet the qualifications set forth in the current policy to be considered a member of the medical team. 23. Nancy D. Behn does not have an individual DEA Registration Number or an Ohio license number equivalent. 24. ODRC officials obtained sodium thiopental from corrections officials in Indiana. 25. ODRC officials obtained sodium thiopental from corrections officials in Kentucky. 26. TM # 10 obtained sodium thiopental from Southern Ohio Medical Center in May, 2010, and September, 2010. 27. Warden Morgan does not meet the qualifications set forth in the current policy to be considered a member of the medical team. 28. Warden Morgan does not have an individual DEA Registration Number or an Ohio license number equivalent. 29. Former Warden Kerns does not meet the qualifications set forth in the current policy to be considered a member of the medical team. 30. Former Warden Kerns does not have an individual DEA Registration Number or an Ohio license number equivalent. 31. TM # 9, as a phlebotomist, is not qualified under Ohio law to administer intravenous and intramuscular injections. (J. Ex. 1.) B. Team Member # 10 Following preliminary remarks concerning discovery and opening statements by counsel, Plaintiff called Team Member 310, who testified behind a screen that shielded his identity. Team Member # 10, who is now the leader of the execution team, has served on the team for every execution that Ohio has conducted since resuming executions in 1999. Plaintiff proceeded to ask Team Member # 10 about several stipulations that the parties submitted to the Court just before the hearing commenced. Examining a copy of those stipulations, Team Member # 10 confirmed that he does not meet the qualifications in the current written protocol to be considered a member of the medical team on the execution team; that he does not have an individual DEA Registration Number or an Ohio license number equivalent; that he signed the “Order for Execution Medications” document prior to the execution of inmate Spisak; that he obtained sodium thiopental from the Southern Ohio Medical Center (“SOMC”) in May 2010 and September 2010; and that Team Member # 9, as a phlebotomist, is not qualified under Ohio law to administer intravenous and intramuscular injections. Team Member # 10 also agreed that he often speaks with the condemned inmate before the inmate is executed, both while the inmate waits in the holding cell and when the inmate lies in the execution chamber, and that, as the team leader, he remains in the execution chamber along with the warden, while inmates are executed. Team Member # 10 testified that he is not qualified under Ohio law to administer intravenous or intramuscular injections. Referencing the most recent version of the written execution protocol — DRC Policy Number Ol-COM-11, effective April 11, 2011 — Team Member # 10 agreed that Section VI.B.7.b of the written protocol states that the person who receives the execution medications at the institution on the day of an execution, documents the receipt, and delivers them to the Death House must be qualified to administer medications. Team Member # 10 testified that it is usually the Health Care Administrator (“HCA”), Registered Nurse Rosie Clagg, who takes possession of the execution medications on the day of an execution, but that recently, another registered nurse, Carol Reeder, has performed that job. Turning to Section VI.B.7.C of the written protocol, Team Member # 10 testified about the procedures and requirements for the preparation of the execution medications and the documentation of the same. Team Member # 10 agreed that under the written protocol, documentation of the transfer of the execution medications to the Death House requires the signatures of three people qualified under Ohio law to administer intravenous and intramuscular injections: the person who delivers the medications to the Death House, and two additional people qualified to administer medications. Team Member # 10 proceeded to testify about the section of the written protocol governing the preparation of the execution medications: Section VI.B.7.d That section, Team Member # 10 confirmed, requires not only that the person who prepares the execution medications be qualified under Ohio law to administer intravenous and intramuscular injections, but also that a second person qualified under Ohio law to administer intravenous and intramuscular injections independently verify the mixtures and doses. Team Member # 10 testified that it was his understanding that the same section requires three signatures, on the same form as that documenting the transfer, although Team Member # 10 was not able to testify with certainty as to his understanding of which three people could sign the form. When Plaintiff asked whether, despite the fact that Team Member # 10 was not qualified to perform any of the tasks set forth above, Team Member # 10 had in fact signed the receipt, Team Member # 10 answered, “correct.” When asked whether he had signed the receipt documenting completion of those tasks for the May 17 execution of Daniel Bedford, Team Member # 10 answered, “correct.” Team Member # 10 then explained that he is present with the HCA and two “qualified” team members when the execution medications arrive at the Death House and that once they are all inside the control room or equipment room, he secures the door from the inside. Team Member # 10 testified that, once the HCA and other two team members inspect all of the medications and materials, prepare the injections, and verify the preparations, Team Member # 10 signs the document described in Section VI.B.7.d to verify that all of the tasks were performed. Team Member # 10 testified that there was no separate form that he or anyone else signed documenting the mixing of the drugs and the preparation of the injections. When asked whether the omission of a separate form documenting the preparation of the drugs constituted a deviation from Section VI.B.7.d of the written protocol, Team Member # 10 answered that “it could be ... correct.” Team Member # 10 then confirmed that he had signed the document described in Section VI.B.7.d for the Daniel Bedford execution on May 17, 2011, and the Kenneth Biros execution on December 8, 2009. Team Member # 10 proceeded to testify that he believed he had signed that document for every execution over the past four years. Team Member # 10 attempted to explain that, in his mind, he signed those documents not because he was one of the required signatories described in Section VI.B.7.d, but for purposes of accountability. When asked whether his signing of those documents in lieu of one of the three signatories described constituted deviations from the written protocol, Team Member # 10 answered, “correct.” Plaintiff next questioned Team Member # 10 about the execution of Vernon Smith. Team Member # 10 confirmed that Team Member # 17, a medical team member qualified under Ohio law to administer intravenous and intramuscular injections, was not present for the execution of Vernon Smith. Team Member # 10 testified that he was one of two signatories on the form described in Section VI.B.7.d documenting the receipt and mixing of the drugs at the Death House. When Plaintiff asked whether the written protocol required two signatories to be qualified under Ohio law to administer medications and whether anything less constituted a deviation from the written protocol, Team Member # 10 answered, “yes.” After testifying that he signed not in place of someone qualified under Ohio law to administer medications but only for purposes of accountability, Team Member # 10 agreed that it would be a deviation from the written protocol to have only one signature of someone so qualified, as was the case with the Vernon Smith execution. To that point, Team Member # 10 confirmed that for the Vernon Smith execution, Team Member # 21 was the only person present who was qualified under Ohio law to administer medications. When Plaintiff asked whether, in light of the fact that the written protocol requires the presence of at least two people qualified under Ohio law to administer medications, it was a deviation from the protocol that only one was present during the Vernon Smith execution, Team Member # 10 answered, “correct.” Team Member # 10 then confirmed that under the written protocol as it existed for the Vernon Smith execution, with an effective date of November 30, 2009, he was present in the death chamber and could see who entered the death chamber to verify the visibility of the two IV lines, one in each of Vernon Smith’s arms. Specifically, Section VI.B.8.a of the November 30, 2009 protocol required the warden, two medical team members, and the team leader to verify in the death chamber the visibility of the IV lines. Team Member # 10 confirmed that Team Member # 17 was not present that day and that Team Member # 9 never entered the death chamber for the Vernon Smith execution. When asked whether it constituted a deviation from the then-effective protocol to have fewer than two medical team members verify in the death chamber the visibility of the IV lines, Team Member # 10 answered, “correct.” Team Member # 10 then confirmed that no one substituted for Team Member # 17 for the Vernon Smith execution. Team Member # 10 testified that Section VI.B.l.d of the current version of the written protocol, with an effective date of April 11, 2011, requires the team leader, prior to the commencement of the initial training or rehearsal session, to verify and document the inclusion of the requisite number of persons qualified under Ohio law to administer medications and those team members’ certifications. When Plaintiff asked whether that section of the written protocol required verification and documentation of the qualifications, Team Member # 10 answered, “correct.” Team Member # 10 confirmed that no such documents were generated at the time that he testified in 2008 but that he now keeps copies of all of the medical team members’ certifications and checks them before each execution. Team Member # 10 confirmed that he verifies the medical team members’ certifications but does nothing to document that verification. When Plaintiff asked whether the omission of documentation of the verification process constituted a deviation from the written protocol, Team Member # 10 answered, “correct.” Plaintiff then questioned Team Member # 10 about his role in the acquisitions in March 2010 and September 2010 of sodium thiopental from SOMC. Team Member # 10 confirmed that he authored an email, dated March 26, 2010, to Edwin Voorhies and Warden Donald Morgan acknowledging his awareness that the institution possessed enough sodium thiopental only for the executions scheduled for March and April of that year, inquiring whether there existed any policy governing from where they could acquire the drug, and indicating that he knew the pharmacist at SOMC and was willing to initiate contact with that pharmacist for the purpose of trying to acquire more sodium thiopental. Team Member # 10 testified that he offered his assistance in this regard of his own volition, not because anyone prompted him or because he felt “pressure” to acquire more sodium thiopental. Team Member # 10 confirmed that, after receiving approval from Morgan, Team Member # 10 initiated contact with the pharmacist two or three times, with the contacts culminating in Team Member # 10 on May 10, 2010, taking possession of sodium thiopental at SOMC and transporting it back to the Southern Ohio Correctional Facility (“SOCF”). Team Member # 10 testified that although he assumed that he would be involved in the acquisition, he also assumed that the transfer of sodium thiopental would be not to him “personally,” but pharmacy to pharmacy, and that the DRC legal authorities or other authorities “higher up” had approved the transaction. Team Member # 10 confirmed that a receipt for 500 mg of sodium thiopental, dated May 10, 2011 (Pl.’s Ex. 46), contained both a DEA number and a “TD” number. When Plaintiff pointed out that SOCF did not have its own DEA number at the time, Team Member # 10 testified that he was not aware of that fact and that he assumed that the numbers belonged to the DRC central office. (Team Member # 10 later confirmed on redirect examination that SOCF received its own DEA number on March 9, 2011.) Team Member # 10 then testified that on the day of the transaction, he drove to SOMC, signed for and took possession of the thiopental from an assistant pharmacist, and called Morgan when Team Member # 10 was en route back to SOCF. Team Member # 10 testified that he had no involvement in generating a purchase order for the sodium thiopental and that he assumed DRC had been responsible for a formal purchase order. Regarding the provision in Section VI.B.7 referencing the acquisition of the required execution drugs from the institution’s pharmacy, Team Member # 10 confirmed that SOCF does not have pharmacy on site. When asked whether Team Member # 10’s actions leading to and including the acquisition of sodium thiopental on May 10, 2010, constituted deviations from the written protocol, Team Member # 10 answered that he did not know. Team Member # 10 confirmed that his regular job duties at the institution do not include the ordering, receiving, or transporting of medications. Team Member # 10 denied that, prior to the execution of Michael Beuke scheduled for May 13, 2010, Team Member # 10 felt “pressure” to locate sodium thiopental. Team Member # 10 confirmed that he picked up sodium thiopental from SOMC in the manner described above twice: once in May 2010 for the Beuke execution and again in September 2010 for the October 6, 2010 Michael Benge execution. Team Member # 10 denied repeatedly that he had had any role in ordering or approving funds for the sodium thiopental on behalf of DRC. Team Member # 10 could not explain why a bill for the purchase of sodium thiopental (Pl.’s Ex. 51) had a notation directing the bill to Team Member # 10’s attention. Team Member # 10 also testified as to his awareness that various DRC officials, such as former DRC director Ernie Moore and SOCF Warden Morgan, had been making telephone calls to locate and acquire more thiopental, including to a warden in Kentucky named Phil Parker and to a medical facility in Chillicothe called Adena. Team Member # 10 confirmed his understanding that Adena was not willing to sell the drug directly to SOCF, but was willing to sell it to SOMC for the purpose of SOMC then selling it to SOCF, which culminated in Team Member # 10’s September 2010 acquisition of the drug from SOMC. Team Member # 10 testified that he had no involvement in acquiring sodium thiopental other than the May 2010 and September 2010 acquisitions from SOMC. Plaintiffs counsel proceeded to question Team Member # 10 about a file that Team Member # 10 recently had begun maintaining and that he had disclosed to Defendants just days before testifying. Defendants in turn disclosed the file to Plaintiff the day before the hearing. Team Member # 10 testified that around January 2011, he began keeping a file documenting training and rehearsal sessions for executions. The file, Team Member # 10 explained, contains such materials as applications for membership on the execution team, team members’ certifications, and sign-in sheets for the training/rehearsal sessions. Team Member # 10 proceeded to recount the various occasions on which he excused certain team members from attending a rehearsal for reasons such as job-related conflicts, inclement weather, and health issues. Team Member # 10 testified that he had never experienced a team member simply failing to appear for a rehearsal session. Plaintiff proceeded to ask Team Member # 10 about a particular rehearsal session preceding the Frank Spisak execution for which neither Team Member # 17 nor Team Member # 21— the only team members qualified under Ohio law to administer intravenous and intramuscular injections — were present. In response to Plaintiffs question as to how the team could conduct a rehearsal without the presence of the requisite number of medical team members and without any member qualified to actually administer the execution drugs, Team Member # 10 testified that the execution team ran through a “play by play” of the execution for the benefit of the team members who were there and that Team Member # 9 — a medical team member not qualified to administer medications — performed some dual roles only for the purpose of keeping the rehearsal going. Team Member # 10 denied that he was in possession of any other documents or materials required by this Court’s discovery order to be disclosed. Plaintiff next asked a series of questions about Plaintiffs Exhibit 189 — a collection of “Order for Execution Medications” forms for executions ranging from April 2007 to October 2010. The top half of the forms at issue consists of an order for the release of execution medications, signed by the SOCF warden, while the bottom half of the form documents receipt of the execution medications authorized to be released, with one signature line to document receipt of the execution medications at the institution from the pharmacy that released them and three signature lines to document the delivery of those drugs to the Death House. With respect to the latter set of signature lines, Team Member # 10 confirmed that he was one of the three signatories, along with HCA Nurse Clagg or another registered nurse, on many of the forms submitted as Plaintiffs Exhibit 189. Plaintiff then asked Team Member # 10 questions about the procurement of execution medications for the May 2, 2006 execution of Joseph Clark. The questions, testimony, and accompanying exhibits— Plaintiffs Exhibits 34 and 35, the execution time line and a controlled substance accountability record, respectively — suggest that four units, or two grams, of sodium thiopental were received at the institution on May 1, 2006 at 2:00 p.m.— the day before Clark’s scheduled execution. Team Member # 10 testified that he was not aware of and could not explain why that drug was delivered a day early. Team Member # 10 further testified that on the morning of the execution at approximately 10:45 a.m., (while the execution team was endeavoring to reestablish IV lines following the failure due to infiltration of the single line through which they had begun to administer the two (2) grams of sodium thiopental), a former HCA exited the Death House to obtain more sodium thiopental — but only two (2) units, or one (1) gram. On cross-examination by Defendants, Team Member # 10 confirmed that none of Defendants’ counsel had instructed him not to tell the truth. Regarding the fact that several forms purporting to document the receipt and preparation of the execution medications contained the signatures of only Team Member # 10 and one medical team member qualified under Ohio law to administer intravenous and intramuscular medications, Team Member # 10 testified that it was his understanding of the written protocol that so long as two qualified medical team members were present — one to prepare the drugs and the other to independently verify the preparation and dosages — it was not necessary for both of the medical team members to actually sign the form. Team Member # 10 clarified that he never intentionally violated the requirements of the written protocol in this regard and never intentionally acted as a person qualified under Ohio law to administer intravenous and intramuscular injections. Team Member # 10 testified generally that during the preparation of the execution medications in the equipment room of the Death House, always present were Team Member # 10, a registered nurse (usually HCA Nurse Clagg), and two medical team members. Team Member # 10 also testified that he now keeps copies of the medical team members’ licenses and verifies those licenses before each execution. Regarding the requirement set forth in Section IV. B.l.d that the warden or team leader verify and document the certification status, qualification, and experience of the designated medical team members, Team Member # 10 testified that he believed that the steps he takes before each execution of reviewing the licenses and maintaining copies of them satisfied the requirements in Section IV.B.l.d. Team Member # 10 next testified on cross-examination about the procedures for performing vein assessments on an inmate who arrives at SOCF for execution. Team Member # 10 testified that the inmate’s veins are first assessed for viability at intake, when the inmate arrives at SOCF the morning before his scheduled execution. Team Member # 10 testified that a second vein assessment is performed at 8:30 p.m. the evening prior to the scheduled execution and that the third and final vein assessment is performed the morning of the scheduled execution, immediately after visitations have ended. Team Member # 10 testified that he has been on the execution team for every execution since 1999, and that to the best of his knowledge, the vein assessment procedure described above has been followed for each execution. During redirect examination, however, Plaintiff called upon Team Member # 10 to revisit deposition testimony that he had provided in October 2009 concerning the failed attempt to execute Romell Broom. Team Member # 10 suggested during that testimony that no vein assessment was performed on Broom on the morning of his scheduled execution. Team Member # 10 testified that if he had testified as such, and if it were true, he could not offer an explanation for why that morning vein assessment would not have been performed. When confronted during his 2009 deposition testimony with the fact that the time line for the Broom execution did not reflect that a morning vein assessment had been performed, Team Member # 10 then testified in his deposition that if it was not reflected on the time line then it must not have happened. Although agreeing that vein assessments were critical, Team Member # 10 allowed in the instant hearing that perhaps the omission of the vein assessment from the time line did not mean that the vein assessment did not occur. Team Member # 10 speculated that documentation in the time line of the vein assessments was required only where someone suspected a possible problem. Team Member # 10 nonetheless agreed that all of the vein assessments — problematic or not — should have been documented; Team Member # 10 insisted that that “was our practice.” Team Member # 10 also explained on redirect examination that the morning of the failed Romell Broom execution was hectic and that any omissions in documentation were inadvertent. Team Member # 10 conceded that without the documentation, there existed no way to ensure that an event — such as a morning vein asséssment — did occur. Team Member # 10 testified that he, as well as every member of the execution team, has a full-time job within DRC apart from their duties as members of the execution team. Team Member # 10 testified that all execution team members are volunteers. Team Member # 10 testified that because the team performs one rehearsal per week for four weeks prior to a scheduled execution, and Ohio has commenced carrying out executions at a rate of nearly one every four to six weeks, the execution team has been training almost weekly for the past two years. Team Member # 10 confirmed that execution team members have occasionally been excused from rehearsals, due to scheduled vacation or for medical reasons. Team Member # 10 also testified that the members of the execution team not designated or qualified as medical team members are considered security team members. Because most of the security team members are active corrections officers, performance of their daily job duties is considered the equivalent of training daily for their duties as security members of the execution team. Team Member # 10 testified that security team members never perform the tasks assigned to medical team members and that he, as team leader, will ensure that is always the case. With respect to the receipt and preparation of the execution drugs, as well as the actual administration of the execution drugs, Team Member # 10 testified that Team Members # 17 and Team Member # 21 alternate not only between preparing the drugs and independently verifying the preparation, but also between administering the execution drugs and monitoring the administration of the execution drugs. Team Member # 10 testified that Team Member # 9 has been present during the preparation of the execution drugs and in the equipment room during the carrying out of the execution on the occasions when Team Member # 17 was not. Team Member # 10 clarified, however, that neither Team Member # 9 nor the HCA registered nurse have ever prepared the execution drugs or ever administered the execution drugs. Team Member # 10 reitei'ated that during the Vernon Smith execution in January 2010 and during the Michael Beuke execution in May 2010, when Team Member # 17 was not present due to a car accident and a necessary doctor’s appointment, respectively, Team Member # 9 was present for the receipt and preparation of the execution drugs, as well as in the equipment room with Team Member # 21 while Team Member # 21 was administering the execution drugs. On redirect examination, Team Member # 10 agreed that according to the written execution protocol, the only persons who are authorized to do anything with the execution drugs are those authorized under Ohio law to administer intravenous and intramuscular injections. Team Member # 10 insisted that aside from the two executions for which Team Member # 17 was absent, there have been no other executions during which any of the three medical team members was not present. Team Member # 10 also confirmed that no one “substituted” for Team Member # 17 during the two executions for which he was absent. Concerning the periods during which there was a nationwide shortage of sodium thiopental, Team Member # 10 confirmed on cross examination that he was aware of the shortage, but emphasized that no one from DRC had ever directed him to attempt to acquire any sodium thiopental and that any efforts he made in that regard were of his own volition in an effort to solve a known problem. Team Member # 10 testified that on the two occasions that he acquired sodium thiopental from the pharmacy at SOMC, he had done so not for his personal use but with the authorization by Morgan. C. Donald Morgan Plaintiff next called Donald Morgan, who testified that he has been the warden of SOCF for the past year and a half and serves as such to date. Morgan testified that prior to becoming the warden at SOCF, he was the deputy warden there. Morgan confirmed that he was a former execution team member. Concerning the nationwide shortage of sodium thiopental, Morgan confirmed that beginning in April 2010, Team Member # 10 was involved, acting as Morgan’s designee, in obtaining some packages of sodium thiopental. Morgan testified that he became aware from discussions that DRC was exploring the possibility of obtaining sodium thiopental from local sources, the possibility of importing the drug from overseas, and the option of using doses that went through a re-issuance process after expiring. Morgan testified that then-Direetor Ernie Moore vetoed the latter two options. Morgan testified that in September 2010, he had contacted other states, pharmacies, and correctional facilities in an effort to locate more sodium thiopental. Regarding the reluctance of a medical facility in Chillieothe named Adena to sell the drug directly to SOCF for use in an execution, Morgan confirmed that it was he who suggested a number of options, including the option that was employed: Adena sold the drug to SOMC, which in turn sold it to SOCF. Concerning the acquisition of sodium thiopental from SOMC, Morgan testified that Denise Dean of the DRC Central Office was aware of the transaction but never had direct contact or involvement with Team Member # 10. When Plaintiff asked whether Dean ever expressly authorized the transaction that occurred, Morgan testified that it was his view that her awareness of the transaction was one and the same as her authorization of it. With respect to the fact that SOCF obtained its own DEA license in March, 2011, authorizing it to receive and otherwise handle Schedule II controlled substances, Morgan testified that Dean thought SOCF should obtain such a license because of Ohio’s recent switch from the use of sodium thiopental to pentobarbital. Morgan explained that pentobarbital is a Schedule II controlled substance. When Plaintiff asked whether hydromorphone, which has been procured as part of Ohio’s written execution protocol since November 30, 2009, was also a Schedule II controlled substance, Morgan answered that he did not know. Morgan testified that when it is time to request execution medications, he sometimes directs the request to his institution’s HCA and sometimes directs it to Dean. Morgan testified that he did not know whether any DEA forms were generated with the purchase orders for the execution medications. Morgan testified that it was his understanding that, prior to SOCF obtaining its own DEA license, the DEA license possessed by DRC’s central pharmacy provided sufficient authority for SOCF to acquire execution medications. Morgan confirmed that he was the warden of SOCF during the Michael Beuke execution in May 2010. When questioned about the fact that the execution took place without the presence of one of the two required medical team members authorized under Ohio law to administer intravenous and intramuscular injections, Morgan testified that he had been aware of the fact, that they had not had in depth discussions about it because they had done the same thing in January 2010 (for the Vernon Smith execution), and that he thought they were in compliance with the written protocol. To that point, Morgan referenced the section within the written protocol that, in his view, allows him to make whatever adjustments are necessary to carry out an execution. Morgan testified that he thought that the team members that were on hand for the Beuke and Vernon Smith executions were sufficient. Relying on his authority to make adjustments, Morgan testified that the absence of one of the two required medical team members authorized to administer medications did not constitute a deviation from the written protocol. When Plaintiff asked whether the fact that Team Member # 9 was not qualified to administer medications, leaving only Team Member #21 as the sole person with the requisite authorization, amounted to a deviation from the written protocol, Morgan answered that because of the warden’s authority to make alterations, it did not amount to a deviation. Morgan testified that he believed that the alterations he made in allowing for the executions of Beuke and Vernon Smith to proceed without the presence of one of the two required medical team members authorized to administer medications, but with the presence of Team Member # 9, were calculated to complete the executions in a humane manner. He characterized the alterations as “slight.” When asked what, in his view, constituted “non-negotiable” aspects of the written protocol — without which an execution could not proceed — Morgan answered “the drugs.” Beyond that, Morgan explained, he could not offer what he would regard as non-negotiable. Morgan further explained that when problems arise, he discusses them and deals with them. When asked what he would do if both Team Members # 17 and Team Member #21 were unavailable on the day of an execution, Morgan answered that he would be open to the possibility of postponing the execution, especially because he does not know whether he would be able to locate someone on the day of an execution qualified to perform the tasks that Team Members # 17 and Team Member # 21 are required and authorized to perform. Morgan confirmed that he would never ask a team member who was not qualified as a medical team member to perform medical team member tasks. Morgan testified that, as the warden, he is to be next to the inmate in the death chamber during the execution. In response to questioning whether, following the December 2009 execution of Kenneth Biros, the execution team has ever encountered any trouble carrying out executions, Morgan answered that he was aware of no problems. Defendants began their cross examination by establishing that Morgan had been a corrections officer for eighteen years, was highly decorated with awards and honors, and represents the first corrections officer to hold every institutional position within the corrections system. Morgan proceeded to testify that in his view, the written protocol (or policy) is a guideline. Morgan explained that every execution cannot be perfect and that flexibility is essential. Morgan reiterated that the fundamental consideration informing every execution is that it be carried out humanely. Morgan testified that if a critical occurrence arose, he would consult with his team before making any alterations. When asked about the alteration from the written protocol’s requirement of the presence of two medical team members qualified to administer medications, Morgan insisted that was done in furtherance of carrying out humane executions. Morgan testified that he saw no need to halt an execution under that scenario. The cross examination next turned to the issue of acquiring, storing, and administering execution drugs. Morgan testified that SOCF has a pharmacy license that allows it to store drugs. Morgan also testified that DRC’s central pharmacy is the licensed pharmacy for SOCF. Morgan testified that his process for paying for execution drugs is to get billed and then to approve the funds to pay that bill. Morgan also testified that he believed that the central pharmacy’s authority provided him with the authority to search for and obtain execution drugs. Morgan testified that all of SOCF’s acquisitions of execution drugs involved a licensed pharmacist during the process. Morgan next testified that he understood Team Member # 9’s qualifications and duties during an execution. Morgan insisted that Team Member # 9 has never been asked to administer the execution drugs and never would be asked to do anything for which Team Member # 9 was not qualified. When asked whether Team Member # 9 was functioning outside qualifications by observing from the equipment room the administration of drugs (that she was not qualified to administer), Morgan answered that Team Member # 9 was qualified to observe the inmate’s veins and the flow of drugs and that that was what she did. Team Member # 9’s presence in the equipment room during the execution was not as a substitution for a medical team member qualified to administer medications. On redirect examination, Morgan confirmed that in his view, Ohio may go forward with an execution with the presence of only one medical team member qualified under Ohio law to administer medications. Finally, Morgan confirmed that he became the warden of SOCF in April 2010, but that he has been involved in executions in Ohio since 1999. D. Richard Theodore Defendants called as their first witness Richard Theodore. Up until the day before the instant hearing, Theodore was employed by DRC as a pharmacy supervisor at the Oakwood facility in Lima, Ohio. Theodore testified that he was somewhat familiar with SOCF and confirmed that SOCF does not have its own pharmacy at the institution and has not since 2007. Theodore explained that the Ohio Department of Mental Health contracts as a pharmacy for SOCF. Regarding the relevant regulatory authority governing SOCF’s acquisition of execution medications, Theodore referenced Defendant’s Exhibit A: a 1994 letter from the Ohio Board of Pharmacy to SOCF concerning the documentation necessary to carry out executions. Theodore testified that he believed that the SOCF wardens have relied on that documentation as authority to obtain the execution drugs. Theodore proceeded to testify that he was requested by DRC to contact the Ohio Board of Pharmacy last year concerning any requirements or procedures for obtaining sodium thiopental from out of state. Theodore testified that the board members wanted an invoice to document the origin and transfer of any sodium thiopental. Theodore confirmed that he contacted someone in the State of Kentucky and arranged for Kentucky to transport three grams of thiopental to Theodore himself at the Oakwood facility. Theodore testified that an invoice was prepared and that he signed for the receipt. Theodore testified that he also arranged to acquire five grams of sodium thiopental from the State of Indiana, but that on that occasion, he personally picked up the package from Indiana, transported it to Oakwood, and then prepared an invoice to transfer it to SOCF. Pursuant to the same 1994 Board of Pharmacy letter, Theodore also obtained a copy of the death warrant. Defendants’ Exhibit B documented Theodore’s transfer of the sodium thiopental from Oakwood to SOCF, Defendants’ Exhibit C documented the transfer of sodium thiopental from Indiana to Ohio, and Defendants’ Exhibit D documented the transfer of sodium thiopental from Kentucky to Ohio. Theodore testified that he believed that the transactions he described where in full compliance with the Ohio Board of Pharmacy. Theodore proceeded to testify about his contacts with the DEA and Ohio’s Board of Pharmacy concerning Ohio’s January 2011 switch from sodium thiopental, which is a Schedule III controlled substance, to pentobarbital, which is a Schedule II controlled substance. Theodore explained that he contacted these regulatory agencies for the purpose of determining what, if any, additional documentation was necessary following the switch in order for Ohio and SOCF to be in compliance in the acquisition of pentobarbital and in carrying out executions using that drug. Theodore confirmed that hydromorphone is a Schedule II controlled substance. Theodore testified that he was aware both that hydromorphone was a component of Ohio’s “back-up” execution plan and that it to date had never been used. Theodore proceeded to testify that after learning from the DEA officials within the State of Ohio that any communication concerning Ohio’s acquisition and use of pentobarbital would have to come from DEA officials in Washington, D.C., Theodore had no further contact with any DEA officials. As for the Ohio Board of Pharmacy, Theodore testified that it referred him to the same 1994 letter and stated that although the letter mentioned a Schedule III controlled substance, the letter nonetheless constituted authority for the acquisition and use of a Schedule II controlled substance such as pentobarbital. Theodore testified that the Board also informed him to inquire of the pharmacy supplying the pentobarbital regarding any concerns it might have or additional documentation it might require. Theodore testified that he believed that the Board of Pharmacy’s 1994 letter gives the SOCF warden the authority to procure drugs for executions. On cross examination, Theodore confirmed that all of his contacts with regulatory agencies described above were conducted over the phone and were not documented. Theodore testified that, to his knowledge, no further inquiries occurred to the national DEA officials following or as a result of Theodore’s contact with Ohio DEA officials. Theodore also testified that SOCF had been in possession since 2007 of a “contingency stock license” concerning its authority to possess and dispense medications. Regarding the fact that the Board of Pharmacy letters referred to SOCF’s pharmacy and that SOCF had not had a pharmacy on site since 2007, Theodore explained that pharmacy services at corrections institutions change, are sometimes in house, are sometimes provided for regionally, and are sometimes provided for centrally. Theodore testified that the pharmacy tasked with providing services to an institution essentially qualifies as the institution’s pharmacy as if it were on site. Theodore testified that the Ohio Board of Pharmacy informed him that even with the change in status of SOCF’s pharmacy services, the original letter still provided sufficient authority for the procurement of execution drugs. Theodore confirmed that he obtained that information through conversation, not documentation. Theodore also testified on cross examination that the reason that he took possession of the sodium thiopental packages from Kentucky and Indiana respectively at Oakwood, rather than having those packages transported directly to SOCF, was because DRC had requested that he arrange for those acquisitions, he felt it necessary to be “hands on” in the acquisitions. Theodore testified that the shipments could have been sent directly to SOCF. When Plaintiff asked about instances when SOCF procured sodium thiopental from other medical facilities within the state, Theodore testified that he believed that SOCF’s contingency stock license authorizes it to undertake such a transaction. Theodore also testified that in his view, if DRC’s central pharmacy had knowledge of a medication transaction, that medication was essentially central pharmacy’s property no matter who acquired the medication or how it was acquired. Theodore testified that he has never been involved in the procurement of hydromorphone for Ohio’s “back-up plan.” Theodore testified, albeit without certainty, that he would expect a “DEA 222” form be prepared for every purchase of pentobarbital. On redirect examination by Defendants, Theodore testified that he believed that Ohio is in full compliance with relevant regulations governing the procurement and use of execution drugs. On re-cross examination, Theodore testified that the reason that he did not follow up with national DEA officials after Ohio DEA officials informed him that any communication regarding Ohio’s use of pentobarbital would have to come from national DEA officials was because he did not have authorization to do so. Theodore explained that he passed on to DRC officials the information that Ohio DEA officials had related to him. Theodore also explained that Ohio DEA officials never suggested to him that he should contact national DEA officials. E. Edwin Voorhies Former Noble Correctional Institution and SOCF warden and current DRC Deputy Director/South Regional Director Edwin Voorhies was the final witness to testify. He explained that as SOCF warden, he had presided over ten executions and that in his new role, he continues to attend each execution that occurs. Voorhies testified that he is present in the equipment room during the execution with various other supervisors and medical team members, as well as legal counsel. Early in his testimony, Voorhies testified that Ohio’s written protocol does not set out mandated regulations but instead provides general guidelines, a theme he returned to more than once. He explained that the department employs general guidelines in other situations, such as in hostage scenarios. Voorhies testified that he had been involved in every modification of the written protocol and identified as the two most significant modifications a provision inserting additional steps into the execution process (for example, pausing during the three-drug protocol executions to determine an inmate’s level of consciousness) and the provision that switched Ohio from the three-drug protocol to its current one-drug protocol. Questioning turned to the written protocol provision calling for the involvement of persons who are qualified under Ohio law to administer drugs intravenously and intramuscularly. When questioned about the role the second medical team member who is qualified to administer drugs plays in the execution, Voorhies testified that this individual provides a redundancy, a second set of eyes, and watches for signs of infiltration while the medical team member who actually administers the execution drug watches the syringe and the IV line. Voorhies explained that the second medical team member also serves as an available individual who could administer the execution drugs if the first medical team member assigned to administer the drugs is unavailable. If this second person is not available for an execution, Voorhies testified, it was still okay to proceed with an execution if there is a medical team member who can serve as a second set of eyes watching for infiltration. Therefore, Voorhies opined, it was fine that Ohio conducted the execution of Vernon Smith without the presence of Team Member # 17 because Team Member # 9 fulfilled the role of observer. Voorhies also explained that the nurse present during an execution is qualified to administer drugs, although she is not part of the actual execution team. Voorhies then testified concerning the preparation of the execution drugs. He stated that two people sign a document indicating that they witnessed the preparation. Voorhies admitted that Team Member # 10 signing the form violates a literal interpretation of the written protocol, but not its spirit. Voorhies noted that Team Member # 10 does not prepare the drugs. He testified that he knows Team Member #10 takes great care to monitor the preparation process each time. Voorhies stated that he personally takes responsibility for Team Member # 10 signing the forms because Voorhies is the one who “drilled home the issue” of accountability for the drugs. Voorhies rejected the proposition that the lack of sufficient signatures presented a risk of an improper execution because he knows who is present when the drugs are prepared. He stated that he had personally witnessed the process on four successive occasions to ensure his satisfaction and testified that he was “so satisfied, I’m willing to assume responsibility for it.” When questioned in regard to the Clark execution, Voorhies testified that he was aware that the IV line had failed during that execution. He denied that the fact that the execution team had obtained an extra gram of sodium thiopental during the course of the execution meant that Clark received an insufficient dose of the drug. He attempted to explain that the most plausible explanation for the apparent issue was that the medical team member administering the drug might have had one syringe left from the primary dose and that the medical team member might have needed only the additional one gram to administer a full dose. Questioning then turned to the procedures Ohio has employed to obtain sodium thiopental for executions. Voorhies pointed to Defendants’ Exhibit A as giving a warden knowledge of his authority to obtain the execution drug. He explained the procurement process and its paperwork and then turned to the fact that Ohio had considered and rejected various alternatives for obtaining additional drugs. One such avenue was using imported drugs due to the concern that the drugs would lack FDA approval. He also testified that Ohio had also rejected the option of compounding drugs or using expired drugs that had been given an extended expiration date. Voorhies testified that Ohio had explored obtaining sodium thiopental from other states with capital punishment. He indicated that he was unaware that any such state could not transfer the drugs to Ohio due to legal concerns, and he explained that states had been reluctant to be known publically as a state that provided Ohio with the drugs. Voorhies conceded that, as a public official, he considers public opinion in every decision. He noted that at any given moment, he could lose his job if he makes a poor decision. Voorhies also testified that Ohio pursued obtaining the necessary drug from pharmacies. Voorhies testified that he is satisfied with how Ohio has obtained execution drugs. He stated that the most important aspect of the execution procedure and the policy guidelines is to promote a humane execution. Voorhies also testified in regard to the failed Broom execution. When questioned about the doctor brought in during the IV access problems, Voorhies testified that this was based on his advice. A warden can bring in a doctor as a responsible act during an execution, he explained, and he noted that he would do it again even with the benefit of hindsight. Voorhies emphasized that he sought to obtain the doctor’s advice. Later in his testimony, questioning returned to this issue, and Voorhies again emphasized that the doctor had been involved as an advisor. He initially denied that she was actively involved in the execution proceedings, but upon additional questioning, Voorhies recognized that she had attempted to start an IV He explained that he would rather that the doctor has not done this and stated that she did so of her own volition. Voorhies testified that her involvement was not inconsistent with the execution protocol. Other questioning addressed various suggested deviations from that protocol. Plaintiffs counsel inquired as to an apparent discrepancy between a summary judgment affidavit that Voorhies had submitted in which Voorhies addressed the completeness and reliability of execution timelines. His hearing testimony indicated that not everything that occurs during the execution process is recorded on the timeline. Pressed to answer whether vein assessment is a significant even during the execution process, Voorhies eventually admitted that it was. Counsel suggested that Voorhies’ testimony regarding the time-lines had shifted from deposition testimony that Voorhies had given earlier in this litigation. When questioned regarding his October 2010 deposition testimony in which Voorhies stated that vein assessment would be in a timeline, Voorhies stated that its absence pointed to a quality control issue and stated that he would take additional, unidentified measures to address the issue. Similarly, Voorhies was questioned about issues surrounding SOCF’s drug inventory records, documented in Controlled Substance Accountability Record sheets. Counsel walked Voorhies through various entries on these sheets that counsel proposed as suggesting that during the Clark execution, it was mathematically impossible for Ohio to have injected Clark with a sufficient drug dosage based on the amount of the drugs delivered to the execution. There were also entries suggesting that the drugs had been delivered to the execution one or even two days prior to executions. In later testimony on this topic, Voorhies stated that the Clark drug records could just be errors. He testified that he has never observed evidence of the administration of an improper dosage. Voorhies did agree, however, that sixty-two errors in the drug inventory records were a lot of errors. In other testimony, Voorhies stated in response to a question as to whether reducing the level of protection and eliminating redundancy set forth in the protocol was necessary to ensure a humane execution. He answered that he does not believe that redundancies were eliminated. The written protocol is a set of guidelines, he testified. Voorhies also stated in response to a question from the bench that there had been no deviations since Ohio went to the one-drug protocol. II. Analysis A. Standard involved In considering whether injunctive relief staying Plaintiffs execution is warranted, this Court must consider (1) whether Plaintiff has demonstrated a strong likelihood of success on the merits; (2) whether Plaintiff will suffer irreparable injury in the absence of equitable relief; (3) whether a stay would cause substantial harm to others; and (4) whether the public interest is best served by granting a stay. Cooey v. Strickland, 589 F.3d 210, 218 (6th Cir.2009) (citing Workman v. Bredesen, 486 F.3d 896, 905 (6th Cir.2007); Ne. Ohio Coal. for Homeless & Serv. Employees Int’l Union, Local 1199 v. Blackwell, 467 F.3d 999, 1009 (6th Cir.2006)). As the Sixth Circuit has explained, “ ‘[tjhese factors are not prerequisites that must be met, but are interrelated considerations that must be balanced