Marcelle Ray v. Commissioner, Alabama Department of Corrections, 020619 FED11, 19-10405

Docket Nº:19-10405
Opinion Judge:MARCUS, CIRCUIT JUDGE
Party Name:DOMINEQUE HAKIM MARCELLE RAY, Plaintiff - Appellant, v. COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, Defendant-Appellee.
Judge Panel:Before MARCUS, WILSON and MARTIN, Circuit Judges.
Case Date:February 06, 2019
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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DOMINEQUE HAKIM MARCELLE RAY, Plaintiff - Appellant,

v.

COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, Defendant-Appellee.

No. 19-10405

United States Court of Appeals, Eleventh Circuit

February 6, 2019

Appeal from the United States District Court for the Middle District of Alabama D.C. Docket No. 2:19-cv-00088-WKW-CSC

Before MARCUS, WILSON and MARTIN, Circuit Judges.

MARCUS, CIRCUIT JUDGE

Petitioner Domineque Ray has moved this Court for an emergency stay of his execution, scheduled to take place at 6:00 p.m. (CST) on February 7, 2019 at the Holman Correctional Facility ("Holman") in Atmore, Alabama, for the 1995 rape, robbery, and murder of fifteen-year-old Tiffany Harville. He also appeals from the determination of the district court denying his emergency motion for a stay and dismissing two of his claims under the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C. § 2000cc et seq., and under § 1983 and the Establishment Clause of the First Amendment.

I.

Precious little in the way of evidence has been adduced at this late hour. Based on our review of the amended complaint, the responses each party has made to a series of questions posed to them by the district court, and the short hearing held by the trial court on January 31, we know this much: Domineque Ray has been a committed Muslim since at least 2006. He has been meeting with his current Imam, Yusef Maisonet of Masjid As Salaam, who has provided religious ministry to Muslim prisoners in Holman since 2015. Ray's Imam has stated that Ray was a devout Muslim when the Imam began his ministry at Holman and that Ray continues to be committed to Islam to this day. Moreover, the Commissioner of the Alabama Department of Corrections ("ADOC") does not dispute the sincerity of Ray's religious beliefs.

On January 23, 2019, Ray met with the Warden of Holman, Cynthia Stewart, who, apparently for the first time, explained to Ray the practices and policies that were followed by the ADOC during the administration of the death penalty. Among other things, the Warden explained that Chaplain Chris Summers would be in the execution chamber during the administration of the lethal injection. The state1 has further explained that since 1997 Chaplain Summers has witnessed nearly every execution conducted in the state of Alabama as part of his official duties. During the execution, Chaplain Summers, a Christian, will kneel at the side of the prisoner and pray with him if the inmate requests prayer. If the inmate does not want pastoral care from Chaplain Summers, he will remain in the execution chamber standing unobtrusively by the wall. The inmate's designated witnesses, limited to six, along with any spiritual advisor other than Chaplain Summers, may be seated in a witness room, separated from the death chamber by a large window.

During the January 23 meeting with the Warden, Ray made three requests for the accommodation of his religious beliefs: first, that his Imam be present in order to provide spiritual guidance for him at the time of his death; second, that the institutional Christian Chaplain be excluded from the chamber; and, finally, that he not be required to undergo an autopsy because it conflicted with his religious beliefs. The Warden denied the first two requests and explained that she had no decisional authority over the autopsy.

On the same day, Ray also met with Chaplain Summers and again requested the presence of an imam and that Chaplain Summers not be present in the execution chamber during his execution. The Chaplain told Ray that his requests could not be honored due to ADOC policy. When Ray asked both Warden Stewart and Chaplain Summers if he could see a copy of the prison's policy that dictated these arrangements, he was told that he could not.

We also know that Ray has met with his Imam in a contact visit at Holman as recently as January 29, and had another such visit scheduled for January 30. Moreover, according to the state, his Imam may visit with him in the days leading up to and on the execution day itself. Further, his Imam may accompany him to a holding cell adjacent to the execution chamber and remain with him until the inmate makes the final walk to the chamber.

Ray filed his civil rights complaint and emergency motion for stay of execution in the United States District Court for the Middle District of Alabama on January 28, 2019, and lodged an amended complaint on January 31. Ray's amended complaint makes four claims. First, Ray says that excluding his Imam from the execution chamber at the time of his execution in favor of a Christian chaplain violates his rights under the Religious Land Use and Institutionalized Persons Act. Second, he claims that requiring the presence of a Christian chaplain in the execution chamber at the time of his execution also violates his rights under RLUIPA. Third, Ray alleges that Alabama's practice of requiring a Christian chaplain in the execution chamber, while forbidding clerics of other faiths, violates the Establishment Clause of the First Amendment.2 Finally, Ray submits that refusing to honor his late election for nitrogen hypoxia as the method of his execution, where his lateness resulted from his religious beliefs, also violates RLUIPA. Setting aside the final claim, which he has not preserved for our present purposes, Ray's amended complaint seeks two basic accommodations: that the state not allow the presence of Holman's Christian Chaplain and that his Imam be allowed in the execution chamber so that he may receive spiritual guidance and comfort from a cleric of his own faith.

The district court set a hearing for January 31 and issued an order to show cause to the state asking why the procedures Ray challenged were permissible. The order also directed the Commissioner to answer a series of questions about Ray, the Chaplain, and ADOC procedures, and to file under seal the prison's relevant written policies or procedures. On January 31, 2019, Alabama responded and moved to dismiss Ray's complaint.

The state's response included further details about ADOC policies and procedures as well as a thoroughly redacted version of the prison's relevant procedures, filed under seal. The state further explained that Chaplain Summers has been an ADOC employee since 1990 and is "familiar with the technicalities of the execution protocol." If an inmate wishes, he "will kneel at [the inmate's] side and pray with him" during the execution. The state explained that it "ha[d] not previously accommodated any prisoner's request that the institutional Chaplain not be present in the execution chamber." Nor had it "executed a prisoner by lethal injection without a chaplain attending the execution."

The state added that Ray would be allowed visitation with his spiritual advisor on the day of execution. Citing the confidential procedures, the state explained that "shortly before his execution, a condemned inmate is permitted to meet with the spiritual advisor of his choosing." The spiritual advisor may then observe the execution from the viewing room, along with the inmate's relatives, friends, and members of the media.

Although Alabama expressly disclaimed any constitutional defect in requiring the presence of the prison's Christian Chaplain, the state agreed to accommodate Ray's request and exempt the institution's Chaplain from the execution chamber. Alabama reiterated, though, that it would not permit Ray's Imam to take the Chaplain's place. The state explained that it "will not permit a non-ADOC employee, someone unfamiliar with the execution process and with the practices and safety concerns of the prison, to be in the chamber in the chaplain's place." Having made this concession, Alabama responded to the show cause order's inquiries about the lawfulness of its practices by alleging that the issues had become moot.

The district court took oral argument on January 31. Beyond the answers that were given in the parties' written responses, no additional facts were adduced at the hearing. Ray requested, however, a "quick evidentiary hearing," and specifically suggested that, among other things, the prison Chaplain could "testify by telephone" within the next few days and be asked "what training he received and how difficult it would be for him to walk Mr. Ray's Imam through that training." The state, although it did not request a hearing, said that, if appropriate, it could offer evidence supporting its position.

The following day, the district court issued an order denying the motion to stay execution and dismissing Counts 2 and 3 of Ray's complaint. At the heart of its holding, the court found Ray "guilty of inexcusable delay," which, it said, yielded a "strong equitable presumption against granting a stay." The trial court explained that "Ray has had ample opportunity in the...

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