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Murphy v. Collier

United States Court of Appeals, Fifth Circuit

November 12, 2019

PATRICK HENRY MURPHY, Plaintiff - Appellee

          Appeal from the United States District Court for the Southern District of Texas

          Before DENNIS, ELROD, and HIGGINSON, Circuit Judges.


         Five days ago, the Southern District of Texas granted a motion from Texas death row inmate Patrick Henry Murphy seeking to stay his execution. Officials of the Texas Department of Criminal Justice (TDCJ) now move in this court to vacate the district court's order so that Murphy may be executed tomorrow, November 13, 2019. For the following reasons, the TDCJ's motion is DENIED.


         Earlier this year, two days before his then-scheduled execution, Texas death row inmate Patrick Henry Murphy, a Buddhist, filed the instant lawsuit under 42 U.S.C. § 1983 and a motion for stay of execution in the Southern District of Texas. He alleged that the State of Texas's execution policy allowing only TDCJ employees in the execution chamber violated the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA). At the time of Murphy's scheduled execution, all the TDCJ-employed chaplains were Christian and Muslim, and execution protocol did not provide any accommodation for inmates, such as Murphy, who wished for the presence of a spiritual advisor of a different religion in the execution chamber. Under this policy, Murphy alleged that Christian and Muslim death row inmates could have a spiritual advisor of the same religion in the execution chamber with them, while inmates of other religions, like Murphy, could not.

         The district court denied Murphy's motion for a stay of execution as untimely. Murphy appealed to this court the day before his scheduled execution, and we affirmed, explaining that "the proper time for raising such claims has long since passed." Murphy v. Collier, 919 F.3d 913, 915 (5th Cir. 2019).

         The Supreme Court granted Murphy's motion for a stay mere hours before Texas had planned to execute him. Justice Kavanaugh authored a concurrence wherein he "conclude[d] that Murphy made his request to the State in a sufficiently timely manner, one month before the scheduled execution." Murphy v. Collier, 139 S.Ct. 1475, 1476 n.* (2019) (Kavanaugh, J., concurring). Justice Kavanaugh also offered "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. at 1475.


         Five days after the Supreme Court's order, the TDCJ revised its execution procedure, implementing the second of Justice Kavanaugh's suggestions; its new policy prohibits the presence of any chaplain or spiritual advisor in the execution chamber. About two weeks after the TDCJ revised its policy, on April 18, 2019, Murphy filed an amended complaint in the district court that incorporated arguments made in his earlier pleadings while adding arguments directed to the changes in the new TDCJ policy. Murphy's amended complaint still alleged violations of the Establishment Clause, Free-Exercise Clause, and RLUIPA, but the focus of the amended complaint shifted to the interaction an inmate has with his spiritual advisor before entering the execution chamber.

         The parties conducted discovery for several months, which revealed the following: All inmates have access to their spiritual advisor during regular business hours in the two and a half days leading up to the execution. On the day of the execution, however, access is restricted. An inmate may only meet with a non-TDCJ spiritual advisor in the holding area (generally referred to as the "death house") between 3:00 and 4:00 p.m. on the day of his execution. The inmate may make phone calls, including to his spiritual advisor, until 5:00 p.m. Thereafter, only TDCJ personnel may interact with the inmate. The policy, however, does not place any limitation on visits by TDCJ-employed clergy, who appear to have access to an inmate until the moment he enters the execution chamber.

         Murphy argued that the amended policy still favors some religions over others because TDCJ-employed chaplains-who apparently are all Christian or Muslim-have greater access to the condemned than non-TDCJ employee spiritual advisors.[1] Murphy urged that "the defect Justice Kavanaugh identified in the Supreme Court's March order has simply not been eradicated by [the new TDCJ] policy" because "the disparate treatment of different religions continues to exist in the holding area where a condemned inmate is held in the hours before he is executed."

         On July 19, the TDCJ and Murphy filed cross motions for summary judgment. On August 12, before the district court ruled on these motions and while the litigation was ongoing, the state trial court rescheduled Murphy's execution for November 13 at the State's request. On November 4, while awaiting the district court's resolution of the dueling summary-judgment motions, Murphy filed a motion for a stay of execution in the district court.

         On November 7, the district court denied both motions for summary judgment and granted Murphy's motion to stay his execution. In a thorough 14-page decision, the district court explained its reasons for granting a stay. The district court explained that, in practice, the TDCJ policy allows chaplains to "provide spiritual support only to inmates of certain faith groups." TDCJ argued in the district court that TDCJ clergy serve a primarily secular role in the execution process, providing comfort and consolation to inmates facing imminent execution. The district court found, however, that TDCJ clergy "may serve as more to inmates of certain faiths." TDCJ clergy indicated that they would pray with Christian inmates during the time before their execution but would not pray with a prisoner of a different faith if doing so did not accord with the chaplain's personal religious faith. The district court concluded that "serious issues remain unresolved about the TDCJ-employed clergy's mission and how they will carry it out, specifically in relation to inmates not of their faith." The district court also concluded that, at the litigation's current juncture, it was unclear why the State must accomplish its secular purpose of calming and comforting inmates through a chaplain rather than a trained professional "whose position does not carry with it the imprimatur of a specific religion."

         The district court also suggested the State's procedure may not be the least restrictive means of accomplishing its goals of maintaining security and the confidentiality of the drug team, its proffered compelling state interest. The court stated that "some alternative arrangement may be possible to preclude interaction between outside clergy and the process of preparing for an execution," such as allowing the condemned inmate to "be held in a location where his spiritual advisor would be unable to view the execution preparations," remedying the State's security concerns.

         Ultimately, the district court concluded that "[t]he concerns raised by the amended complaint's focus on the pre-execution procedure are as compelling as those in the original complaint." "If Murphy were Christian, he would have the benefit of faith-specific spiritual support until he entered the execution chamber; as a Buddhist he is denied that benefit." Finding the State's justifications for the disparate treatment wanting based on the discovery thus far, the district court determined that "[a] stay will allow the Court time to explore and resolve serious factual concerns about the balance between Murphy's religious rights and the prison's valid concerns for security."


         The TDCJ appeals, arguing that the district court erred in granting Murphy's motion for a stay. "We review a district court's grant of a stay of execution for abuse of discretion." Adams v. Thaler, 679 F.3d 312, 318 (5th Cir. 2012).

         We conclude that the district court did not abuse its discretion in granting Murphy's stay. We agree with the district court's implicit finding that Murphy has a strong likelihood of success on the merits of his claim that the TDCJ policy violates his rights by allowing inmates who share the same faith as TDCJ-employed clergy greater access to a spiritual advisor in the death house.[2]

         The TDCJ argues that Murphy's claim is untimely. We made the mistake of agreeing with the TDCJ on this point in March based on Murphy's original complaint, in which he made his request for religious accommodations to the State one month before his scheduled execution and filed his § 1983 suit two days before his execution. The Supreme Court disagreed.[3] Here, the TDCJ's argument is even weaker than before, as Murphy raised his current claim in April, before the State of Texas even scheduled his execution.

         The dissent contends[4] that "the Supreme Court's stay has no bearing on whether claims raised after that stay grant are timely" because at the time of the Supreme Court's order, Murphy had yet to raise the holding-area claims he brings in his amended complaint. We cannot agree that the Supreme Court's stay has no bearing on this case. In granting the stay of Murphy's execution in March, the Supreme Court ruled implicitly that Murphy's claims were timely. In his concurrence, Justice Kavanaugh made this finding explicit, "conclud[ing] that Murphy made his request to the State in a sufficiently timely manner, one month before the scheduled execution." Murphy, 139 S.Ct. at 1476 n.* (Kavanaugh, J., concurring) (emphasis added).[5] The Supreme Court's finding that this claim was timely bears directly ...

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