Barbee v. Collier et al

Filing 36

ORDER to Provide Briefs Brief due by 9/25/2022(Signed by Judge Kenneth M Hoyt) Parties notified.(jguajardo, 4)

Case 4:21-cv-03077 Document 36 Filed on 09/15/22 in TXSD Page 1 of 3
United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

STEPHEN BARBEE,
Plaintiff,
VS.
BRYAN COLLIER, et al.,
Defendants.

September 15, 2022
Nathan Ochsner, Clerk

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§ CIVIL ACTION NO. 4:21-CV-03077
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ORDER

In 2005, Stephen Barbee murdered his pregnant ex-girlfriend and her seven-yearold son by suffocation. A jury convicted him of capital murder and he received a death
sentence. 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). Barbee’s complaint alleges 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 requests a preliminary
and permanent injunction prohibiting Defendants from executing him until they allow his
spiritual advisor to pray with him and touch him, including holding his hand, during the
execution. (Docket Entry No. 1 at 13).
The Court stayed an earlier execution date. (Docket Entry No. 14). The Court
specifically ordered: “The State may not carry out Barbee’s execution until the State allows
his chosen spiritual advisor in the execution chamber, authorizes contact between Barbee
and his spiritual advisor, and allows his spiritual advisor to pray during the execution.”
(Docket Entry No. 14).
Barbee now faces an execution date of November 16, 2022. Defendants have
moved to dismiss this case. (Docket Entry No. 28).
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Defendants argue that “Barbee is

Case 4:21-cv-03077 Document 36 Filed on 09/15/22 in TXSD Page 2 of 3

being provided with all the relief he seeks in this lawsuit” because they have agreed to
accommodate Barbee’s religious requests. (Docket Entry No. 28 at 6). Defendants have
attached to the motion to dismiss an affidavit by Bobby Lumpkin, Director of the
Correctional Institutions Division of the Texas Department of Criminal Justice, one of the
named defendants in this lawsuit. Director Lumpkin states that he had “reevaluated the
requests made by Stephen Barbee that his spiritual advisor be permitted to lay hands on
him when he is in the execution chamber and to audibly pray during the execution process”
and that “Barbee’s spiritual advisor will be permitted to lay hands on Barbee on a lower
extremity after Barbee is secured to the gurney in the execution chamber and the IV lines
are in place.” Affidavit of Bobby Lumpkin, Director of the Texas Dept. of Criminal Justice,
Correctional Institutions Division, Ex. A to Defendants’ Motion (Docket Entry No. 28, Ex.
A). On August 26, 2022, Defendants filed a second affidavit in which Director Lumpkin
affirms that “Barbee’s spiritual advisor will be permitted to hold Barbee’s hand . . . .”
(Docket Entry No. 33).
It appears that Defendants have agreed to accommodate all Barbee’s religious
requests relating to his execution. The Defendants will allow Barbee’s spiritual advisor in
the execution chamber, allow contact between Barbee and his spiritual advisor—including
handholding, and allow his spiritual advisor to pray. Barbee has not identified any religious
request that the Defendants have not agreed to accommodate.

In other words, the

Defendants will comply with the stipulations contained in the order staying the earlier
execution. Barbee, however, opposes dismissal of this case because the prison policy
currently in place still does not provide official protection for an inmate’s rights during the
execution.
In Ramirez v. Collier, the United States Supreme Court determined under a
preliminary-injunction standard that a condemned inmate raising similar issues would
likely succeed on the merits of his RLUIPA claim. ––– U.S. ––––, 142 S Ct 1264, 128081 (2022). The Supreme Court also encouraged States to “adopt clear rules” regarding
religious expression in the execution chamber that would prevent “last-minute resort to the
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federal courts.” Id. at 1283. The Supreme Court further instructed: “If States adopt clear
rules in advance, it should be the rare case that requires last-minute resort to the federal
courts. If such cases do arise and a court determines that relief is appropriate under
RLUIPA, the proper remedy is an injunction ordering the accommodation, not a stay of the
execution. This approach balances the State’s interest in carrying out capital sentences
without delay and the prisoner’s interest in religious exercise.” Id.
Texas has not yet adopted a policy which fully protects an inmate’s religious rights
in the execution chamber. TDCJ, however, has indicated that it will accommodate
Barbee’s requests. As the earlier stay order has already found that Barbee has met the
preliminary requirements for an injunction, the Court questions whether issuing an
injunction—rather than dismissing the case as the Defendants request—is the better
approach under the current circumstances. The Court, therefore, ORDERS the parties to
provide briefing in ten (10) days which discusses whether issuing an injunction in this case,
as requested by Barbee in his complaint, would be appropriate. The parties will also submit
a proposed order granting an injunction, if either parties believes one is necessary.
SIGNED on September 15, 2022, at Houston, Texas.

_______________________________
Kenneth M. Hoyt
United States District Judge

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