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IN RE: OHIO EXECUTION PROTOCOL.

___________________________________________
ANGELO FEARS, et al.,
Plaintiffs,

GARY OTTE; RONALD PHILLIPS; RAYMOND TIBBETTS,
Plaintiffs-Appellees,
v.
DONALD MORGAN, et al.,
Defendants-Appellants.
   No. 17-3076
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.
Argued: March 7, 2017
Decided and Filed: April 6, 2017
Before: MOORE, KETHLEDGE, and STRANCH, Circuit Judges.


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OPINION
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KAREN NELSON MOORE, Circuit Judge. Ohio’s current execution protocol allows for execution by lethal injection using a three-drug combination of (1) midazolam; (2) either vecuronium bromide, pancuronium bromide, or rocuronium bromide, which are paralytics; and (3) potassium chloride, which stops the heart. R. 667-1 (Ohio DRC Execution Protocol, 01- COM-11 at 2) (Page ID #19813). The purpose of the first drug is to ensure that the person being executed is insensate to the pain that the second two drugs cause. It is undisputed that if the first drug does not “render the prisoner unconscious,” then “there is a substantial, constitutionally unacceptable risk of suffocation . . . and pain” from the second two drugs. Baze v. Rees, 553 U.S. 35, 53 (2008) (plurality op.). The ultimate question in this case is whether use of midazolam as the first drug in this three-drug protocol “entails a substantial risk of severe pain” as compared to “a known and available alternative.” Glossip v. Gross, 135 S. Ct. 2726, 2731 (2015). The question before us at this preliminary stage, however, is much narrower. We ask only whether the district court abused its discretion by granting a preliminary injunction to allow for further litigation regarding midazolam’s efficacy before Ohio executes Ronald Phillips, Raymond Tibbetts, and Gary Otte. For the reasons discussed below, we AFFIRM the judgment of the district court granting the preliminary injunction.