Pizzuto v. Tewalt et al

Filing 75

MEMORANDUM DECISION AND ORDER - IT IS ORDERED that Defendants' Motion to Dismiss Amended Complaint [DKT 23 ] (Dkt. 70 ) is GRANTED. This case is DISMISSED WITHOUT PREJUDICE. Signed by Senior Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (ac)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
GERALD ROSS PIZZUTO, JR.,
Plaintiff,

Case No. 1:21-cv-00267-BLW
MEMORANDUM DECISION
AND ORDER

v.
JOSH TEWALT, Director, Idaho
Department of Correction; TIMOTHY
RICHARDSON, Warden, Idaho
Maximum Security Institution; and
Unknown Employees, Agents or
Contractors of the Idaho Department
of Correction,
Defendants.

Before the Court is Defendants’ Superseding Motion to Dismiss Amended
Complaint [DKT 23] (Dkt. 70). For the reasons explained below, the Court will
grant the Motion and dismiss this case.
BACKGROUND
1.

This Lawsuit
Plaintiff Gerald Ross Pizzuto, Jr. is a death-row inmate in the custody of the

Idaho Department of Correction (IDOC) and housed at the Idaho Maximum
Security Institution (IMSI). A professing Christian, Pizzuto wishes to have his
spiritual advisor in the execution chamber during his execution. Am. Comp. ¶¶ 37
MEMORANDUM DECISION AND ORDER - 1

& 43, Dkt. 23. Pizzuto also wants his spiritual advisor to say an audible prayer and
maintain physical contact with him during the execution. Id. ¶ 45. Pizzuto believes
that his spiritual advisor’s presence, touch, and prayer will provide him with
“spiritual fortitude and well-being” in his final moments. Id. ¶ 43.
In April of 2021, Pizzuto submitted a formal request for these
accommodations. Young Decl., Exs. 1–3, Dkt. 26-3. The IMSI Warden promptly
denied his request, Answer ¶ 42, Dkt. 16, citing IDOC Standard Operating
Procedure 135.02.01.001 (“SOP 135”), Young Decl., Ex. 1 & 3, Dkt. 26-3. That
protocol identifies the five categories of individuals who are permitted in the
execution chamber during an execution. See SOP 135, Dkt. 61-2. Spiritual advisors
are not on the list.
When his request was denied, Pizzuto filed this lawsuit against Josh Tewalt,
Director of the IDOC, and Tyrell Davis, then-Warden of the IMSI. 1 Compl., Dkt.
1; Am. Compl., Dkt. 23. Pizzuto claims that excluding his spiritual advisor from the
execution chamber would violate his rights under the Religious Land Use and
Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc et seq.,
Idaho’s Free Exercise of Religion Protected Act (FERPA), Idaho Code § 73-402,
and, pursuant to 42 U.S.C. § 1983, the Free Exercise Clause of the First

1

Timothy Richardson is now the Warden of the IMISI and a defendant in this case.

MEMORANDUM DECISION AND ORDER - 2

Amendment to the United States Constitution. By way of remedy, Pizzuto seeks a
declaratory judgment invalidating the defendants’ exclusionary policy, and an
injunction requiring the defendants to revise their execution protocols so as to
“allow the presence of Mr. Pizzuto’s spiritual advisor in the execution chamber
during the execution, allow the spiritual advisor to share an audible prayer with
Mr. Pizzuto before the execution commences, and allow the spiritual advisor to
physically contact Mr. Pizzuto during his execution until he passes[.]” Am. Compl.
¶ 118(a)–(d), Dkt. 23.
2.

Defendants Approve Pizzuto’s Religious Accommodations
In March of 2022, the United States Supreme Court issued a decision in the

case of Ramirez v. Collier, 595 U.S. 411 (2022). The Court held that Texas’
categorical ban on audible prayer and pastoral touch by spiritual advisors during
executions violated the Religious Land Use and Institutionalized Persons Act
(RLUIPA). Id. at 430, 433. Although Texas had a compelling interest in preventing
disruptions and preserving solemnity and decorum in the execution chamber, the
Court concluded that there are less restrictive means of achieving those ends. Id.
For example, Texas could “allow touch on a part of the body away from IV lines,”
“require that the pastor undergo training,” or “limit[] the volume of any prayer” to
avoid disruption. Id. at 430, 432.

MEMORANDUM DECISION AND ORDER - 3

Shortly after the Supreme Court decided Ramirez, the parties in this case
“reached an agreement regarding . . . the presence of Mr. Pizzuto’s spiritual
advisor, pastoral touching, audible prayer and use of certain religious objects
during Mr. Pizzuto’s execution.” Dkt. 48 at 2. Namely, “in light of the Supreme
Court’s opinion in Ramirez,” Defendant Tewalt reversed course and “approved Mr.
Pizzuto’s religious requests.” Tewalt Decl. ¶¶ 1–14, Dkt. 56-1. Thus, under the
parties’ agreement, Pizzuto’s spiritual advisor will be allowed to be present in the
execution chamber, to say an audible prayer, and to maintain physical contact with
Pizzuto during the execution. 2
3.

Defendants’ Motion to Dismiss
The parties agree that the substantive dispute in this case has now been

resolved. Pl.’s Suppl. Br. at 2, Dkt. 50; Def.’s Suppl. Br. at 2–3, Dkt. 51. The
remaining question, then, is what is left of this litigation.
According to the defendants, this case must now be dismissed as moot
because Pizzuto “has received the substantive relief he seeks.” Def.’s Memo. in
Supp. at 8, Dkt. 70-1. Pizzuto disagrees. Despite Defendant Tewalt’s promise to
provide him with religious accommodations, Pizzuto argues that this case will not

2

Pursuant to the parties’ agreement, Pizzuto will also be permitted to wear a scapular during the
execution, and his spiritual advisor will be allowed to possess and retain a rosary. Tewalt Decl. ¶
10, Dkt. 56-1.
MEMORANDUM DECISION AND ORDER - 4

be fully resolved until the defendants have modified their written execution
protocols to reflect the principles set forth in Ramirez.
LEGAL STANDARDS
Under Rule 12(b)(1), a lawsuit must be dismissed when a court lacks subject
matter jurisdiction over the action. FED. R. CIV. P. 12(b)(1).3 “The exercise of
judicial power under Art. III of the Constitution depends on the existence of a case
or controversy.” Preiser v. Newkirk, 422 U.S. 395, 401 (1975). Accordingly, “an
actual controversy must be extant at all stages of review, not merely at the time the
[amended] complaint is filed.” Id. “[I]f a plaintiff’s stake in a lawsuit falls away, so
too does [the court’s] subject-matter jurisdiction.” Shemwell v. City of McKinney,
Texas, 63 F.4th 480, 483 (5th Cir. 2023); see also Friends of the Earth, Inc. v.
Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 170 (2000) (“Courts
have no license to retain jurisdiction over cases in which one or both of the parties
plainly lacks a continuing interest[.]”); Pitts v. Terrible Herbst, Inc., 653 F.3d
1081, 1087 (9th Cir. 2011) (“[I]f events subsequent to the filing of the case resolve

3

Where, as here, a defendant raises a factual challenge to jurisdiction, the court “may consider
the evidence presented with respect to the jurisdictional issue and rule on that issue, resolving
factual disputes if necessary[.]” San Diego Cnty. Credit Union v. Citizens Equity First Credit
Union, 65 F.4th 1012, 1028 (9th Cir. 2023); see also Mecinas v. Hobbs, 30 F.4th 890, 896 (9th
Cir. 2022).
MEMORANDUM DECISION AND ORDER - 5

the parties' dispute, we must dismiss the case as moot . . . because [we] do not have
the constitutional authority to decide moot cases.”) (cleaned up).
“A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’
for purposes of Article III—when the issues presented are no longer live or the
parties lack a legally cognizable interest in the outcome.” Already, LLC v. Nike,
Inc., 568 U.S. 85, 91 (2013) (cleaned up). But “a defendant cannot
automatically moot a case simply by ending its unlawful conduct once
sued.” Id. (citing City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289
(1982)). “Otherwise, a defendant could engage in unlawful conduct, stop when
sued to have the case declared moot, then pick up where he left off, repeating this
cycle until he achieves all his unlawful ends.” Id. Rather, a party who asserts
mootness after voluntarily ceasing the challenged conduct “has the heavy burden
of persuading the court that the challenged conduct cannot reasonably be expected
to start up again.” Fikre v. Federal Bureau of Investigation, 904 F.3d 1033, 1037
(9th Cir. 2018) (cleaned up). This principle is known as the “voluntary cessation
doctrine.”4

4

Courts often refer to the voluntary cessation doctrine as an “exception” to mootness. See, e.g.,
Fikre, 904 F.3d at 1039. But that characterization is somewhat confusing, because the presence
of voluntary cessation merely heightens the burden on the defendant rather than precluding a
finding of mootness altogether. This Court prefers thinking of the voluntary cessation doctrine as
the Third Circuit described it in Hartnett v. Pennsylvania State Education Association:

MEMORANDUM DECISION AND ORDER - 6

Government officials are presumed to be acting in good faith when they
assert mootness through voluntary cessation. Id.; Brach v. Newsom, 38 F.4th 6, 12
(9th Cir. 2022), cert. denied, 143 S. Ct. 854 (2023) (“Although we hold the
government to the same burden as private litigants in making this determination,
we nonetheless treat the voluntary cessation of challenged conduct by government
officials with more solicitude.”). In other words, a court should not impute
improper motives to a government official who ceases the challenged conduct
while litigation is pending. Nevertheless, to establish mootness, “the government
must still demonstrate that the change in its behavior is ‘entrenched’ or
‘permanent.’” Fikre, 904 F.3d at 1037 (quoting McCormack v. Herzog, 788 F.3d
1017, 1025 (9th Cir. 2015)). Especially when the change is not codified in a
statute, but merely a change of policy, stance, or behavior. Such a
change “moots an action only when it is absolutely clear to the court, considering
the procedural safeguards insulating the new state of affairs from arbitrary reversal
and the government's rationale for its changed practice(s), that the activity
complained of will not reoccur.” Id. at 1039 (cleaned up).
Though voluntary or volitional cessation is often described as an exception to
mootness, that is not quite right. The burden always lies on the party claiming
mootness, whether the case involves voluntary cessation or not. Voluntary
cessation is just a recurring situation in which courts are particularly skeptical of
mootness arguments. That is why, in voluntary-cessation cases, defendants’
burden of showing mootness is heavy.
963 F.3d 301, 307 (cleaned up).
MEMORANDUM DECISION AND ORDER - 7

The Ninth Circuit has identified several factors to consider when a
government actor asserts mootness through voluntary cessation. Rosebrock v.
Mathis, 745 F.3d 963, 972 (9th Cir. 2014). These include: whether (1) the change
is evidenced by language that is “broad in scope and unequivocal in tone;” (2) the
change fully addresses the “objectionable measures” previously taken against the
plaintiff; (3) the case in question was the catalyst for the government’s change of
stance or behavior; (4) the new policy has been in place for a long time; and (5)
officials have engaged in conduct similar to that challenged by the plaintiff since
the policy change’s implementation. Id. This is not an “exhaustive or definite list”
of elements that the government must satisfy. Id. at 972 n.10. These are, instead,
helpful factors that courts may consider. See Am. Diabetes Ass'n v. U.S. Dep't of
the Army, 938 F.3d 1147, 1153 (9th Cir. 2019) (describing Rosebrock factors as a
“loose framework”).
ANALYSIS
The key question is whether this case is moot now that the defendants have
approved Pizzuto’s requested religious accommodations. 5 The answer turns on
whether it is absolutely clear that the defendants will follow through on their

5

The defendants offer additional grounds for dismissal under Federal Rules of Civil Procedure
12(b)(6) and 56. See Memo. in Supp. at 14–20, Dkt. 70-1. However, because the Court dismisses
this case as moot, it need not address those alternative grounds for dismissal.
MEMORANDUM DECISION AND ORDER - 8

promise. See Fikre, 904 F.3d at 1037. Based on the presumption of good faith for
government officials and the Rosebrock factors, the Court concludes that the
defendants have satisfied their “heavy burden” of showing that Pizzuto will receive
his religious accommodations. Accordingly, there is no longer any case or
controversy and this action must be dismissed.
1.

This case is moot.
Pizzuto no longer has a personal stake in the outcome of this litigation. He

brought this lawsuit to obtain religious accommodations during his execution. This
is not a class action lawsuit, nor is Pizzuto seeking to vindicate the rights of third
parties. Pl.’s Resp. at 4, Dkt. 73. He “is concerned here with protecting his own
rights at his own execution,” id., and he alleges only that “Executing Mr. Pizzuto
Without His Spiritual Advisor in the Execution Chamber” would violate his rights,
Am. Compl. at 9, 11 & 13, Dkt. 23 (emphasis added).
Initially, the defendants denied Pizzuto’s requests. But soon after the United
States Supreme Court issued its decision in Ramirez, Defendant Tewalt reversed
course and approved each of Pizzuto’s accommodations. Tewalt Decl. ¶ 4, Dkt. 561 (“[I]n light of the Supreme Court’s opinion in Ramirez v. Collier, I have
approved Mr. Pizzuto’s religious requests and revised SOP 135 as set forth
herein.”). While the parties still disagree on whether the defendants’ written
policies should be revised in light of Ramirez, that debate is separate and apart
MEMORANDUM DECISION AND ORDER - 9

from the underlying controversy surrounding the spiritual advisor’s involvement in
Pizzuto’s execution. In other words, although Pizzuto believes that the defendants
should enshrine the principles of Ramirez in the State’s written execution
protocols, he no longer has a personal stake in that facet of this case because his
accommodation requests have been approved. For that simple reason, this case is
moot.
2.

The voluntary cessation doctrine does not preclude a finding of
mootness.
But the inquiry does not end there. When a defendant’s voluntary conduct

appears to moot a case, the Court must go further and determine whether the
defendant has carried its “heavy burden” under the voluntary cessation doctrine.
Friends of the Earth, 528 U.S. at 189. That is, the Court must decide whether it is
“absolutely clear” that the defendant will not resume the challenged conduct after
the case is dismissed. Id.
Defendants have made that showing. After applying the Rosebrock factors,
the Court is confident that Pizzuto will not be denied his religious
accommodations. First, in two sworn affidavits filed with this Court, Defendant
Tewalt has guaranteed and carefully described the promised religious
accommodations in broad and unequivocal terms. Dkts. 56-1 & 63-1. In doing so,
he has detailed precisely what will be allowed and what will be expected of the

MEMORANDUM DECISION AND ORDER - 10

spiritual advisor. Tewalt Decl. ¶¶ 5–12, Dkt. 56-1; Tewalt Decl. ¶¶ 6–13, Dkt. 631. Pizzuto notes that “much can change” before his execution; for example, “it is
possible that Director Tewalt will no longer be with IDOC.” Pl.’s Resp. at 3, Dkt.
73. That is a valid point that might be a salient if there was any indication that
Defendant Tewalt will be leaving the IDOC in the near future, or if he had reversed
course in an unexplained exercise of discretion. But, as explained below, that is not
the case. Rather, to the extent that the possibility of Defendant Tewalt leaving the
IDOC diminishes the value of his promise to Pizzuto, the Court finds that the other
Rosebrock factors provide adequate assurances that Pizzuto will receive his
religious accommodations.6 See Brach, 38 F.4th at 14 (rejecting possibility of
reversal in public health situation as a “speculative contingency” insufficient to
“skirt mootness”).
Second, the defendants addressed all of the allegedly “objectionable
measures” previously taken against Pizzuto by granting all three of Pizzuto’s
original requests: pastoral presence, prayer, and touch. Indeed, Defendant Tewalt
has gone even further than that, approving two additional accommodation requests

6

Of course, Pizzuto could regain standing and revive this claim in the future if a new IDOC
director is appointed and retracts Defendant Tewalt’s approval of Pizzuto’s religious
accommodations.
MEMORANDUM DECISION AND ORDER - 11

that Pizzuto raised while this case was pending. Tewalt Decl. ¶ 10, Dkt. 56-1
(approving the use of a scapular and rosary).
Next, Defendant Tewalt has clearly identified the Supreme Court’s opinion
in Ramirez as the catalyst for his decision to reverse course and approve Pizzuto’s
requests. Id. ¶ 4 (“[I]n light of the Supreme Court’s opinion in Ramirez v. Collier,
I have approved Mr. Pizzuto’s religious requests and revised SOP 135 as set forth
herein.”) (emphasis added). That independent basis for the defendants’ change in
stance lends credence to their assurance that Pizzuto will receive the
accommodations. See Public Utilities Comm’n of State of Cal. V. F.E.R.C., 100
F.3d 1451, 1460 (9th Cir. 1996) (finding case moot where external factors
motivated the government’s policy change); see also id. (“[I]n order for [the
voluntary cessation] to apply, the defendant's voluntary cessation must have arisen
because of the litigation.”).
Third, Defendant Tewalt’s commitment to provide Pizzuto’s requested
accommodations has remained in place and undisturbed for over a year and a half.
See American Diabetes Ass’n, 938 F.3d at 1153 (noting that a new policy instituted
two years prior had been in place for “a relatively long time”). During that time,
the issuance of death warrants for Pizzuto has triggered execution preparations on
two separate occasions, yet the defendants have apparently remained committed to

MEMORANDUM DECISION AND ORDER - 12

providing Pizzuto’s religious accommodations. See Pizzuto v. Tewalt, Case No.
1:23-cv-00081-BLW, 2023 WL 4901992, at *1–2 (D. Idaho Aug. 1, 2024).
Finally, the defendants’ conduct since approving Pizzuto’s requests lends
further credence to their guarantee of accommodation. In February of 2024, the
IDOC attempted to execute another death-row inmate, Thomas Creech. At
Creech’s request, the defendants approved and provided religious accommodations
nearly identical to the ones Pizzuto seeks. Def.’s Reply at 2–3, Dkt. 74 (citing Case
No. 1:20-cv-00114-AKB, Dkt. 145). That recent course of conduct demonstrates
the defendants’ capability and willingness to accommodate pastoral presence,
prayer, and touch in the execution chamber. It also credits Defendant Tewalt’s
explanation that his decision to reconsider and approve Pizzuto’s requests was
based on the Supreme Court’s March 2022 decision in Ramirez, and was not
merely a calculated attempt to duck this litigation.
The Ninth Circuit has found cases to be moot under similar circumstances.
In Picrin-Peron v. Rison, for example, the Immigration and Naturalization Service
(INS) released a prisoner to parole while the prisoner had a habeas corpus appeal
pending. 930 F.2d 773, 774 (9th Cir. 1991). According to the government, the
prisoner’s release on parole mooted the habeas appeal, through which the prisoner
was seeking release from confinement. The prisoner disagreed, invoking the
voluntary cessation doctrine and arguing that the government might simply revoke
MEMORANDUM DECISION AND ORDER - 13

his parole and reincarcerate him once the habeas case was dismissed. In response,
the government stated that, absent further criminal conduct, the prisoner’s parole
would not be revoked. Id. at 776. When the Ninth Circuit asked the government to
provide “authority for its promise,” the government filed an affidavit from the INS
Director “who reiterated under oath” that the prisoner’s parole would not be
revoked. Id. “Based on that declaration,” the Ninth Circuit was “satisfied that the
alleged wrong [i.e. imprisonment] would not recur,” and the court therefore
dismissed the habeas appeal as moot. Id.
Here, as in Picrin-Peron, the defendants have done more than make bare
assertions of mootness. In both cases, the government-defendants offered sworn,
unequivocal assurances that the challenged conduct would not occur in the future.
And here, as in Picrin-Peron, although the defendants have not codified their new
stance in a statute or regulation, the Court is satisfied based on their sworn
assurances and the other Rosebrock factors that Pizzuto will be provided his
religious accommodations. See Rosebrock, 745 F.3d at 974 (finding mootness
despite the lack of any “procedural safeguards in place preventing [the
government-defendants] from changing course”); see also Lee v. Biloxi School
Dist., 963 F.2d 837 (5th Cir. 1992) (finding mootness based on the governmentdefendant’s “express commitment” to provide plaintiff’s child with the requested
educational accommodations).
MEMORANDUM DECISION AND ORDER - 14

Conversely, this case differs from those in which courts have rejected
assertions of mootness under the voluntary cessation doctrine. See, e.g., Planned
Parenthood Greater Northwest v. Labrador, 684 F.Supp.3d 1062, 1092 (D. Idaho
2023) (rejecting mootness under voluntary cessation doctrine where government’s
purported letter of cessation “[did] not indicate that [the government official had]
changed his position”). In Fikre v. Federal Bureau of Investigation, for example, a
plaintiff challenged the FBI’s decision to place him on the No Fly List. 904 F.3d at
1039–40. Shortly after Fikre filed his lawsuit, the FBI removed him from the No
Fly List, and the government moved to dismiss the case as moot. On appeal, the
Ninth Circuit considered the voluntary cessation doctrine and rejected the
government’s assertion of mootness for three reasons. Id. at 1039. First, the FBI’s
decision to remove Fikre from the No Fly List was not “[]tethered to any
explanation or change in policy, much less an abiding change in policy.” Id. at
1040. The timing and lack of any external catalyst for the change made the
removal seem “more like[] an exercise of discretion than a decision arising from a
broad change in agency policy or procedure.” Id. Second, the Ninth Circuit
emphasized that the FBI “ha[d] not assured Fikre that he [would] not be banned
from flying for the same reasons that prompted the government to add him to the
list in the first place[.]” Id. at 1040. And finally, since the government had not
publicly acknowledge that its original decision to place Firke on the list was a
MEMORANDUM DECISION AND ORDER - 15

mistake, merely removing him would not “completely and irrevocably irradicate[]”
the stigmatizing effects of the alleged violations. Id.
In stark contrast to the FBI in Fikre, Defendant Tewalt has identified an
external catalyst for his decision to reconsider and approve Pizzuto’s requests—
namely, the Supreme Court’s decision in Ramirez. Moreover, unlike the
government officials in Fikre, Defendant Tewalt has offered repeated, sworn
assurances that Pizzuto will not be denied the religious accommodations at the
time of his execution. In short, the reasons the Ninth Circuit rejected the
government’s assertion of mootness in Fikre are simply not applicable in this case.
3.

Conclusion
Pizzuto brought this lawsuit to ensure that his spiritual advisor will be

allowed in the execution chamber to say an audible prayer and maintain physical
contact with him during his execution. Following the United States Supreme
Court’s decision in Ramirez, the defendants approved each of Pizzuto’s requests in
specific and unequivocal terms. Still, Pizzuto is not satisfied. He asks the Court to
keep this case alive until the defendants formally enshrine the principles of
Ramirez into the State’s written execution protocols. To do so, however, would be
to venture beyond the Court’s constitutionally limited role of deciding cases and
controversies. At this stage, Pizzuto no longer has any personal stake in this case.
And because the defendants have made absolutely clear that they will provide
MEMORANDUM DECISION AND ORDER - 16

Pizzuto with his requested accommodations, the Court is left without jurisdiction
to opine on whether the State ought to modify its written policies to reflect the
principles set forth in Ramirez.
This case is moot.
ORDER
IT IS ORDERED that Defendants’ Motion to Dismiss Amended
Complaint [DKT 23] (Dkt. 70) is GRANTED. This case is DISMISSED
WITHOUT PREJUDICE.

DATED: June 4, 2024
_________________________
B. Lynn Winmill
U.S. District Court Judge

MEMORANDUM DECISION AND ORDER - 17