State urges dismissal of lawsuit filed by family of executed Ohio inmate who gasped, snorted

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FILE - In this Jan. 17, 2014, file photo, Amber McGuire, left, and her brother, Dennis McGuire, right, flank Dennis' wife, Missie, at a news conference Friday, Jan. 17, 2014, in Dayton, Ohio, where they announced their planned lawsuit against the state over the unusually slow Jan. 16, 2014 execution of their father, also named Dennis McGuire. In a court filing Tuesday, July 8, 2014, the State of Ohio is asking a federal judge to dismiss the family's lawsuit, claiming it was improperly filed since McGuire's son isn’t arguing any violations of his own constitutional rights. (AP Photo/Kantele Franko, File)

FILE - This undated file photo provided by the Ohio Department of Rehabilitation and Correction shows Dennis McGuire. In a court filing Tuesday, July 8, 2014, the State of Ohio is asking a federal judge to dismiss a lawsuit filed by the family of McGuire, claiming he endured needless pain and suffering during his 26-minute execution on Jan. 16, 2014. (AP Photo/Ohio Department of Rehabilitation and Correction, File)

COLUMBUS, Ohio — A lawsuit alleging an executed inmate endured needless pain and suffering should be dismissed, the state said in a court filing that argues the prisoner is the only one who could have argued a violation of constitutional rights.

The lawsuit also failed to identify specific acts that members of Ohio's execution team committed that violated the constitution, the state said.

Condemned killer Dennis McGuire repeatedly gasped and snorted during his Jan. 16 execution, the longest — at 26 minutes — since Ohio resumed putting people to death in 1999.

McGuire's family including his adult son sued 10 days later, seeking to have Ohio's two-drug method declared unconstitutional as well as financial damages above $75,000.

The Department of Rehabilitation and Correction denies McGuire suffered but also changed its policy afterward to boost the dosages of execution drugs used in the future.

The family's lawsuit should be dismissed because McGuire's son, Dennis R. McGuire, "does not allege that any of his constitutional rights were violated," the state said in Tuesday's court filing.

The lawsuit also doesn't provide evidence — beyond listing the individuals who carried out the execution — to support the family's claims that state officials were responsible for the denial of federal rights, the state said.

Instead, the lawsuits presents "nothing more than legal conclusions that are unsupported by factual allegations," according to the state.

The lawyer representing the McGuire family said Thursday he believes many claims raised in the lawsuit will be upheld.

"The McGuire family is still of the belief there was an injustice done and a remedy is necessary for that injustice," said attorney Jon Paul Rion.

Executions have been on hold in Ohio since McGuire's death thanks to reprieves granted while the state updated its execution policies and in one case a decision by Gov. John Kasich to spare an inmate for reasons unrelated to McGuire.

The next execution is scheduled for Sept. 18, when Ronald Phillips is set to die for raping and killing his girlfriend's 3-year-old daughter in Akron in 1993.

Phillips' execution was previously delayed by his unsuccessful request to be allowed to donate organs to family members.

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