Barbee v. Collier

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
Citation566 F.Supp.3d 726
Docket NumberCIVIL ACTION NO. 4:21-CV-3077
Parties Stephen BARBEE, Plaintiff, v. Bryan COLLIER and Bobby Lumpkin and Dennis Crowley, Defendants.
Decision Date07 October 2021

Allen Richard Ellis, Attorney at Law, Mill Valley, CA, for Plaintiff.

Stephen Matthew Hoffman, Edward Larry Marshall, Office of the Attorney General, Austin, TX, for Defendants.


Kenneth M. Hoyt, United States District Judge

On February 23, 2006, a jury in Tarrant County, Texas convicted Stephen Dale Barbee of capital murder for killing his pregnant girlfriend and her seven-year-old son. Pursuant to the jury's answers to Texas’ special issue questions, the convicting court sentenced him to death. Barbee has unsuccessfully availed himself of state and federal post-conviction remedies. The State of Texas has set Barbee's execution for October 12, 2021.

On September 21, 2021, Barbee filed this lawsuit under 42 U.S.C. § 1983 claiming that Texas will carry out his execution in a manner that will violate his religious rights. (Docket Entry No. 1). Specifically, Barbee complains that the Texas Department of Criminal Justice (TDCJ) will prevent his chosen spiritual advisor from having physical contact and praying with him during the execution process. Barbee argues that these limitations will violate the First Amendment's Free Exercise Clause and substantially burden the exercise of his religion in violation of the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C. § 2000cc et seq.

With the fast-approaching date, Barbee has moved for a stay of execution. (Docket Entry No. 6). The Defendants oppose any stay. (Docket Entry No. 9). For the reasons discussed below, the Court stays Barbee's execution.

I. Background

Texas adopted lethal injection as its sole method of execution in 1982. In 1985, Texas promulgated an official execution policy in which a TDCJ-employed chaplain attended to the condemned inmate's spiritual needs during an execution. During that time, a prison chaplain could have physical contact and pray with the condemned as the execution proceeded. For over thirty years, no inmate asked for an outside spiritual advisor to be present in his execution.

In early 2019, Texas inmate Patrick Henry Murphy sued because TDCJ protocol would not allow the spiritual advisor of his choice—a Pure Land Buddhist priest—in the execution chamber. Murphy v. Collier , 4:19-cv-1106 (S.D. Tex.). The United States Supreme Court stayed Murphy's execution on March 28, 2019. Murphy v. Collier , ––– U.S. ––––, 139 S. Ct. 1475, 203 L.Ed.2d 633 (2019). That same day, Justice Kavanaugh entered a concurring statement which proposed that "there would be at least two possible equal-treatment remedies available to the State going forward: (1) allow all inmates to have a religious adviser of their religion in the execution room; or (2) allow inmates to have a religious adviser, including any state-employed chaplain, only in the viewing room, not the execution room." Id. (Kavanaugh, J., concurring). Five days later, TDCJ revised its execution protocol to exclude all spiritual advisors, even prison-employed chaplains, from the execution chamber.

On September 26, 2019, Ruben Gutierrez filed a civil-rights lawsuit claiming that TDCJ's new policy violated his religious rights by barring his spiritual advisor from the execution chamber. Gutierrez v. Saenz , 1:19-cv-185 (S.D. Tex.). The Supreme Court ultimately stayed Gutierrez's execution. Along with the stay, the Supreme Court assigned the District Court a task: "promptly determine, based on whatever evidence the parties provide, whether serious security problems would result if a prisoner facing execution is permitted to choose the spiritual adviser the prisoner wishes to have in his immediate presence during the execution." Gutierrez v. Saenz , ––– U.S. ––––, 141 S. Ct. 127, 128, 207 L.Ed.2d 1075 (2020) (emphasis added).

After the submission of evidence on the question of security, the District Court in Gutierrez entered an order specifically "finding that the extensive evidence submitted by the Parties does not demonstrate that serious security concerns would result from allowing inmates the assistance of a chosen spiritual advisor in their final moments." Gutierrez v. Saenz , 1:19-cv-185 (S.D. Tex.), (Docket Entry No. 124). The Supreme Court subsequently accepted the findings and remanded the Gutierrez case for adjudication of claims regarding the presence of a spiritual advisor in the execution chamber. Gutierrez v. Saenz , ––– U.S. ––––, 141 S. Ct. 1260, 1261, 209 L.Ed.2d 4 (2021).

On April 21, 2021, TDCJ adopted a new execution protocol which, with certain preliminary requirements, will allow an inmate's chosen spiritual advisor to accompany him during an execution. The new protocol gives precise details about the qualifications, background check, and training of an inmate's spiritual advisor. The protocol also specifies that the spiritual advisor "will be escorted into the execution chamber" and may be "present in the execution chamber." (Docket Entry No. 1, Exh. B).1 The 2021 execution protocol is silent about a spiritual advisor's role inside the execution chamber. The written policy does not say that a spiritual advisor will have any constraint placed on the spiritual assistance he or she may provide the inmate as the execution proceeds.

TDCJ officials have apparently placed informal limitations on what the advisor may do upon entry to the death chamber. As inmates have submitted their requests for a spiritual advisor to attend their execution, prison officials have sent letters or other communications indicating that they would not allow the spiritual advisor to pray with or touch the inmate as the execution proceeds. Texas inmates have recently filed lawsuits complaining that TDCJ's implementation of its new policy violates their religious rights.

Parallel litigation has arisen in Alabama. One Alabama inmate sued because he wanted his spiritual advisor "to pray with [him], hold his hand, and otherwise touch [him] at the moment of his death." Smith v. Dunn , 516 F.Supp.3d 1310 (M.D. Ala. 2021). The Eleventh Circuit entered an order staying the inmate's execution based on his religious-liberty claims. See Smith v. Commissioner, Alabama Department of Corrections , 844 F. App'x 286, 295 (11th Cir. 2021). The Eleventh Circuit specifically found that the inmate had made a prima facie showing that the exercise of his religion would be substantially burdened because he "will be unable to hold [his spiritual advisor's] hand and pray with him in his final moments. This required change in the way [the inmate] carries out his religious practices ...." Smith v. Commissioner, Alabama Department of Corrections , 844 F. App'x 286, 291 (11th Cir. 2021). The Supreme Court denied Alabama's motion to vacate the stay. See Dunn v. Smith , ––– U.S. ––––, 141 S. Ct. 725, 209 L.Ed.2d 30 (2021).

The Supreme Court's stay of execution in Smith prompted the Alabama prison system to accommodate the inmate's religious requests. The parties subsequently filed a joint motion to dismiss the Smith litigation when the prison agreed to allow the "Plaintiff's chosen spiritual advisor into the execution chamber and will permit him to anoint Plaintiff, hold Plaintiff's hand, and pray with him ...." Smith v. Dunn , 2:20-CV-1026-RAH (M.D. Ala. June 17, 2021) (Order granting Joint Motion to Dismiss, Docket Entry No. 58).2

Like Alabama, Texas now allows an inmate's chosen spiritual advisor into the execution chamber. Texas inmates, however, are currently litigating what assistance a spiritual advisor may provide during the execution process. Recently, another Texas death row inmate, John H. Ramirez, sued because of those limitations. While TDCJ had approved Ramirez's request for a chosen spiritual advisor to be by his side, prison officials informed him that his spiritual advisor could neither touch him nor engage in audible prayer during the execution. Ramirez v. Collier , 4:21-cv-2609 (S.D. Tex.). The United States Supreme Court recently stayed Ramirez's execution. Ramirez v. Collier , ––– U.S. ––––, 142 S.Ct. 50, 50, 210 L.Ed.2d 1019 (2021). In briefing that the parties will complete by November 1, 2021, the Supreme Court instructed as follows:

The parties are directed to submit briefs that address whether petitioner adequately exhausted his audible prayer claim under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). The parties are also directed to address whether petitioner has satisfied his burden under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) to demonstrate that a sincerely held religious belief has been substantially burdened by restrictions on either audible prayer or physical contact. The parties are further directed to address whether the government has satisfied its burden under RLUIPA to demonstrate its policy is the least restrictive means of advancing a compelling government interest. Finally, the parties [are] directed to address the type of equitable relief petitioner is seeking, the appropriate standard for this relief, and whether that standard has been met here. See Hill v. McDonough , 547 U.S. 573, 584, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006) (setting forth a four-factor test for equitable relief). The parties may address other relevant issues, avoiding repetition of discussion in prior briefing.

Ramirez v. Collier , ––– U.S. ––––, 142 S.Ct. 53, 53, 210 L.Ed.2d 1021 (2021). In short, the Ramirez proceedings may clarify what technical requirements an inmate must meet in filing such litigation, what burden he must satisfy in showing an imposition on his religious worship, whether TDCJ has sufficiently justified its limitation on its new policy, and what relief is available in similar situations.3

II. Barbee's Lawsuit

With that background, Barbee filed this lawsuit on September 21, 2021. (Docket Entry No. 1)....

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