Murphy v. Collier

• Decision Date: 24 June 2020
• Docket Number: Civil Action No. H-19-1106
• Citation: 468 F.Supp.3d 872
• Parties: Patrick Henry MURPHY, Plaintiff, v. TDCJ Executive Director, Bryan COLLIER, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

468 F.Supp.3d 872

Patrick Henry MURPHY, Plaintiff,

v.TDCJ Executive Director, Bryan COLLIER, et al., Defendants.

Civil Action No. H-19-1106

United States District Court, S.D. Texas, Houston Division.

Signed June 24, 2020

David R. Dow, Jeffrey R. Newberry, University of Houston Law Center, Houston, TX, for Plaintiff.

Edward Larry Marshall, Leah Jean O'Leary, Amy L. Hunsucker Prasad, Gwendolyn S. Vindell, Matthew Dennis Ottoway, Office of the Attorney General of Texas, Austin, TX, for Defendants.

ORDER ON MOTION FOR RECONSIDERATION

GEORGE C. HANKS, JR., UNITED STATES DISTRICT JUDGE

Patrick Henry Murphy, an inmate on Texas’ death row, filed suit under 42 U.S.C. § 1983 because the defendants will limit access to his chosen spiritual advisor before and during his execution. This Court has denied summary judgment. (Dkt. 57). This case was scheduled for trial. The defendants have moved for reconsideration and seek summary judgment on Murphy's claims involving his religious rights in the execution chamber. (Dkt. 78). For the reasons discussed below, the Court denies the defendants’ motion for reconsideration.

Background

Murphy's original complaint challenged Texas Department of Criminal Justice ("TDCJ") protocol that would allow a prison-employed chaplain, but not his chosen Buddhist spiritual advisor, to accompany him during the execution of his death sentence. (Dkt. 1). Murphy's execution-chamber claims relied on (1) the First Amendment's Establishment Clause; (2) the First Amendment's Free Exercise Clause; and (3) the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc, et seq. ("RLUIPA"). (Dkt. 1).

Murphy filed this lawsuit in 2019 while facing an execution date.

Murphy filed this lawsuit in 2019 while facing an execution date. When the Supreme Court stayed Murphy's execution on March 28, 2019, Justice Kavanaugh entered a concurring statement which counseled Texas on how it could change its execution protocol. Justice Kavanaugh 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." Murphy v. Collier , ––– U.S. ––––, 139 S. Ct. 1475, 203 L.Ed.2d 633 (2019) (Kavanaugh, J., concurring).

TDCJ revised its execution policy on April 2, 2019. The relevant portion of the TDCJ procedure now states that the Correctional Institutions Director (or her designee) and the Huntsville Unit Warden (or his designee) are the only two employees who may be inside the execution chamber during an execution. (Dkt. 22, Ex. A at 8). Members the drug team enter and exit the execution chamber during the time immediately prior to administration of the execution drugs. Texas state law shields the identity of the drug team members. See Tex. Code Crim. Pro. art. 43.14 ; Tex. Dep't of Crim. Just. v. Levin , 572 S.W.3d 671, 680–85 (2019) (concluding that disclosing the identity of people or companies involved in the execution-drug process would cause them a substantial risk of harm). No spiritual advisors, not even the TDCJ employees who formerly could provide spiritual comfort to the condemned, are now allowed at the inmate's side during an execution.

After TDCJ changed its policy, members of the Supreme Court issued two statements. First, Justice Alito (joined by Justices Thomas and Gorsuch) entered a May 13, 2019, statement dissenting from the Supreme Court's earlier order. Justice Alito's dissent argued that the Supreme Court should not have stayed Murphy's execution because he had not filed his section 1983 lawsuit in a timely manner. Justice Alito, however, went on to opine that the First Amendment issues in the case were not easily decided. Justice Alito highlighted that the "flimsy record" precluded any decision about whether Texas could safely accommodate Murphy's request to have his spiritual advisor in the execution chamber. Justice Alito stated "that the prison setting justifies important adjustments in the rules that apply outside prison walls. Determining just how far those adjustments may go is a sensitive question requiring an understanding of many factual questions that cannot be adequately decided on the thin record before us." Additionally, "unresolved factual issues" remained about whether the current policy furthers TDCJ's "compelling interest in security," "is narrowly tailored to serve that interest," and "can be sustained on that basis ...." Murphy , 139 S. Ct. at 1484 (Alito, J., dissenting from grant of application for stay).

In response to Justice Alito's dissent, Judge Kavanaugh authored a statement which Chief Judge Roberts joined. Justice Kavanaugh recounted that "Texas changed its unconstitutional policy, and it did so effective immediately. Texas now allows all religious ministers only in the viewing room and not in the execution room." Justice Kavanaugh went on to opine:

The new policy solves the equal-treatment constitutional issue. And because States have a compelling interest in controlling access to the execution room, as detailed in the affidavit of the director of the Texas Correctional Institutions Division and as indicated in the prior concurring opinion in this case, the new Texas policy likely passes muster under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U.S.C. § 2000cc et seq., and the Free Exercise Clause.

Put simply, this Court's stay facilitated the prompt resolution of a significant religious equality problem with the State's execution protocol and should alleviate any future litigation delays or disruptions that otherwise might have occurred as a result of the State's prior discriminatory policy.

Murphy , 139 S. Ct. at 1476 (statement of Kavanaugh, J.).

The changes to TDCJ policy did not end legal challenges to its execution protocol. After TDCJ revised its policy to bar all spiritual advisors from the death chamber, Murphy amended his complaint and added additional arguments about limitations on access to his spiritual advisor in the hours before an execution. The parties moved for summary judgment. (Dkts. 38, 39). The State of Texas obtained a death warrant setting a new execution date. This Court entered an order denying summary judgment and staying Murphy's execution. (Dkt. 57). This Court's order focused on factual issues needing development regarding pre-execution access to Murphy's spiritual advisor. The Fifth Circuit affirmed the stay of execution. See Murphy v. Collier , 942 F.3d 704, 706 (5th Cir. 2019).

The defendants have now filed a Motion for Reconsideration of the Court's Order. (Dkt. 78). The defendants argue that this Court should grant summary judgment on Murphy's execution-chamber claims.

The concerns raised by this lawsuit have impacted the rights of other death-row imitates. In a separate lawsuit, Texas death-row inmate Ruben Gutierrez sued because he wanted a TDCJ-employed chaplain to accompany him in the execution chamber. Gutierrez v. Saenz , 1:19-cv-00185 (S.D. Tex.). Gutierrez alleged that TDCJ violated his rights under the First Amendment and RLUIPA by taking away from him what it had long allowed other inmates: the right to spiritual comfort in his final moments. In that on-going litigation, the District Court recently denied TDCJ's motion to dismiss and stayed Gutierrez's execution. After the Fifth Circuit reversed, see Gutierrez v. Saenz , 818 Fed.Appx. 309, 311–12, (5th Cir. 2020), the Supreme Court stayed Gutierrez's execution and issued a short order on June 16, 2020. The Supreme Court ordered that "[t]he District Court should 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. ––––, ––– S.Ct. ––––, 207 L.Ed.2d 1075, (2020).

Summary Judgment Standard

The defendants have renewed their motion for summary judgment on both Murphy's RLUIPA and First Amendment claims. Summary judgment should be granted when the moving party conclusively establishes that there is no genuine issue of material fact. Fed. R. Civ. P. 56(c) ; Celotex Corp. v. Catrett , 477 U.S. 317, 323-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Fed. R. Civ. P. 56(c) precludes summary judgment when there is a genuine dispute involving facts that might affect the outcome of the lawsuit. Anderson , 477 U.S. at 248, 106 S.Ct. 2505.

Analysis

The parties’ briefing on the motion for reconsideration relies heavily on the earlier summary judgment briefing. (Dkts. 38-41).¹ In addition to reurging arguments from the summary judgment motion, the defendants argue that Murphy has waived any execution-chamber claim. (Dkt. 89 at 2-3). The Court will first address the defendants’ waiver agreement before turning to the other issues raised in the motion for reconsideration.

I. Waiver

For the first time in their reply, the defendants argue that Murphy has waived his execution-chamber claims. (Dkt. 89 at 2-3). Murphy's briefing relating to summary judgment extensively discussed his execution-chamber claims. This Court did not grant summary judgment on the execution-chamber claims and Murphy has not affirmatively abandoned those claims.² The defendants’ argument rests on how Murphy briefed a motion to stay. Murphy's motion for a stay briefly mentioned, but did not extensively address, his execution-chamber arguments. (Dkt. 55 at 5-6). The defendants state that "Murphy was granted a stay of execution only as to his claims related to the pre-execution holding area. [ECF No. 57]. Murphy then failed to assert, on appeal, that he was entitled to a stay of...