Petition for Writ of Certiorari — Ruben Gutierrez, Petitioner v. Luis V. Saenz, et al.

Supreme Court briefJun 15, 2020

Ask Donna

What actually matters in this document.

Text

OCTOBER TERM 2019

No. _____

_______________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________________________

RUBEN GUTIERREZ,

Petitioner,

v.

BRYAN COLLIER, Executive Director, Texas Department of Criminal Justice;

LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional

Institutions Division; BILLY LEWIS, Warden, Texas Department of Criminal Justice,

Huntsville Unit,

Respondents.

______________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

______________________________

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

______________________________

--- CAPITAL CASE --EXECUTION SCHEDULED FOR AFTER

7:00 P.M. EASTERN TIME, TUESDAY, JUNE 16, 2020

Matthew C. Lawry*

Peter Walker

Assistant Federal Defenders

Federal Community Defender Office

for the Eastern District of Pennsylvania

601 Walnut Street, Suite 545 West

Philadelphia, PA 19106

(215) 928-0520

matthew_lawry@fd.org

*Counsel of Record for Petitioner

Member of the Bar of the Supreme Court

Counsel for Petitioner, Ruben Gutierrez

Richard W. Rogers, III

3636 S. Alameda St., Ste. B,

#191

Corpus Christi, TX 78411

(361) 779-5281

rwrogersiii@aol.com

Index to Appendix

Appendix A - Panel Order of the United States Court of Appeals for the

Fifth Circuit Granting Defendants’ Motion to Vacate Stay of Execution

(June 12, 2020) .................................................................................................. A1

Appendix B – Memorandum and Order of the United States District Court for

the Southern District of Texas Granting in Part and Denying in Part

Defendants’ Motion to Dismiss Amended Complaint (June 2, 2020) ............. A9

Appendix C - Order of the United States District Court for the Southern

District of Texas Granting Plaintiff’s Motion to Stay Execution (June 9,

2020) ................................................................................................................ A40

Appendix D - 42 U.S.C. §§ 2000cc-2000cc-5, Religious Land Use and

Institutionalized Persons Act (Sept. 22, 2000) .............................................. A43

Case: 20-70009

Document: 00515451509

Page: 1

Date Filed: 06/12/2020

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 20-70009

United States Court of Appeals

Fifth Circuit

FILED

June 12, 2020

Lyle W. Cayce

Clerk

RUBEN GUTIERREZ,

Plaintiff - Appellee

v.

LUIS V. SAENZ; FELIX SAUCEDA, Chief, Brownsville Police Department;

BRYAN COLLIER, EXECUTIVE DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE; LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT

OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION;

BILLY LEWIS, Warden, Texas Department of Criminal Justice, Huntsville

Unit,

Defendants - Appellants

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:19-CV-185

Before SOUTHWICK, HAYNES, and HIGGINSON, Circuit Judges.

PER CURIAM:*

On June 9, 2020, the district court granted Texas inmate Ruben

Gutierrez’s stay of execution.

The Texas Attorney General’s Office has

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

CIR. R. 47.5.4.

A1

Case: 20-70009

Document: 00515451509

Page: 2

Date Filed: 06/12/2020

No. 20-70009

appealed and moves this court to vacate the stay so that Gutierrez may be

executed as scheduled on June 16, 2020. The State’s motion is GRANTED.

FACTUAL AND PROCEDURAL BACKGROUND

In 1999, Gutierrez was convicted of the murder of Escolastica Harrison

and was sentenced to death. Details of the offense are set out in Gutierrez v.

Stephens, 590 F. App’x 371, 373 (5th Cir. 2014). Important for one of our issues

is that there was evidence that Gutierrez was one of two men inside the

decedent’s home when she was murdered, and Gutierrez could be found guilty

of capital murder even if he was only an accomplice. Id. at 373. Gutierrez’s

conviction was affirmed on direct appeal. Gutierrez v. State, No. AP-73,462

(Tex. Crim. App. Jan. 16, 2002) (not designated for publication). The Court of

Criminal Appeals’ most recent denial of post-conviction relief was on June 12,

2020, when it rejected an application to file a second subsequent writ

application and also denied a stay of execution. Ex parte Gutierrez, No. WR59,552-05 (Tex. Crim. App. June 12, 2020) (not designated for publication).

On September 26, 2019, Gutierrez filed a complaint under 42 U.S.C.

§ 1983, in the United States District Court for the Southern District of Texas.

He sought DNA testing of certain evidence. The operative amended complaint

was filed on April 22, 2020. He challenged the constitutionality of Chapter 64

of the Texas Code of Criminal Procedure, and of the protocols under which it

was applied. He also sought to override the Texas Department of Criminal

Justice’s policy refusing to allow chaplains to accompany inmates into the

execution chamber itself. The State filed a motion to dismiss, which was

granted only in part. That court later entered a stay of execution. The State

appealed.

2

A2

Case: 20-70009

Document: 00515451509

Page: 3

Date Filed: 06/12/2020

No. 20-70009

DISCUSSION

In granting the stay, the district court concluded that Gutierrez made a

showing of likelihood of success on the merits “of at least one of his DNA or

[chaplain] claims.” We review a district court’s grant of a stay of execution for

abuse of discretion. Sepulvado v. Jindal, 729 F.3d 413, 420 (5th Cir. 2013).

When deciding whether to stay an execution, the district court is to

consider four factors: “(1) whether the stay applicant has made a strong

showing that he is likely to succeed on the merits; (2) whether the applicant

will be irreparably injured absent a stay; (3) whether issuance of the stay will

substantially injure the other parties interested in the proceeding; and

(4) where the public interest lies.” Green v. Thaler, 699 F.3d 404, 411 (5th Cir.

2012) (quoting Nken v. Holder, 556 U.S. 418, 434 (2009)). The first two factors

are the most significant for deciding a stay. Nken, 556 U.S. at 434.

On appeal, the State argues the district court abused its discretion in

granting a stay because Gutierrez’s DNA claims are time-barred and meritless

and Gutierrez’s chaplain claims are meritless.

I.

DNA claims

The parties dispute whether Gutierrez’s DNA claims are timely. We

need not answer that question because of our conclusion that the DNA claims

are unlikely to succeed on the merits.

There is no constitutional right for a convicted person to obtain evidence

for postconviction DNA testing, but a right to obtain DNA testing may be

created by state law. District Attorney’s Office for the Third Judicial Dist. v.

Osborne, 557 U.S. 52, 67–73 (2009). Because Texas has created such a right,

its procedures for a convicted defendant to obtain this right must satisfy due

process. Id. at 72–74.

3

A3

Case: 20-70009

Document: 00515451509

Page: 4

Date Filed: 06/12/2020

No. 20-70009

Texas’s procedure for inmates to obtain DNA testing includes a

requirement that they show by a preponderance of the evidence that they

would not have been convicted if exculpatory results had been obtained

through DNA testing. TEX. CODE CRIM. P. ch. 64.03(a)(2)(A). Gutierrez argues

Chapter 64 is facially violative of due process. According to Gutierrez, this

preponderance-of-the-evidence standard is “unusually and unreasonably

high.” He argues the materiality standard should be lower. Although the

Court in Osborne did not resolve the appropriate materiality standard, it did

approve of Alaska’s postconviction procedures, as applied to DNA testing,

requiring that defendants seeking access to DNA evidence must show the

evidence is “sufficiently material.” Osborne, 557 U.S. at 70. States use varying

materiality standards. We see no constitutionally relevant distinction between

what was approved in Osborne — sufficiently material — and requiring an

inmate to show materiality by a preponderance of the evidence.

Gutierrez further argues that Chapter 64 is fundamentally unfair as

applied by the Court of Criminal Appeals. According to Gutierrez, that court

interprets Chapter 64 to preclude DNA testing if the proposed testing would

simply “muddy the waters.” Gutierrez contends this interpretation heightens

the fundamental unfairness of the statutory standard itself. Yet the Supreme

Court allowed denial of DNA testing unless the results were likely to be

“conclusive.” Id. at 65, 70.

The problem for Gutierrez is that he was convicted without jurors

needing to decide whether he was the actual murderer or an accomplice. He

confessed to being inside the home. The jury was permitted to find Gutierrez

guilty “of capital murder if, among other things, it found that appellant ‘acting

alone or as a party’ with the accomplice intentionally caused the victim’s

death.” Gutierrez, 590 F. App’x at 374. A search for DNA on the victim’s

clothing and elsewhere would not reasonably lead to evidence that would

4

A4

Case: 20-70009

Document: 00515451509

Page: 5

Date Filed: 06/12/2020

No. 20-70009

exclude Gutierrez as an accomplice. In his briefing before this court, he wholly

failed to show how the DNA testing he requests would be “sufficiently

material” to negate his guilt thus justifying the pursuit of DNA testing at this

late date. Therefore, because Gutierrez has not shown by a preponderance of

the evidence that he would not have been convicted if exculpatory results were

obtained, he cannot prevail.

Gutierrez failed to show that the Court of Criminal Appeals’ application

of Chapter 64 as to him was fundamentally unfair. We conclude that Chapter

64 both facially and as applied by the Court of Criminal Appeals comports with

the Supreme Court’s decision in Osborne. Consequently, this claim is likely to

fail on the merits and cannot justify a stay of execution.

II.

Chaplain claims

Gutierrez challenges the TDCJ’s policy disallowing chaplains and

spiritual advisors in the execution room itself. The policy, revised in 2019,

provides that on the day of execution the death row inmate may visit with a

TDCJ chaplain and a minister or spiritual advisor “who has the appropriate

credentials,” but chaplains and spiritual advisors are not permitted in the

execution chamber. As part of the 2019 revised execution policy, “[o]nly TDCJ

security personnel shall be permitted in the execution chamber.” According to

Gutierrez, this policy violates his rights under the Establishment Clause, the

Free Exercise Clause, and the Religious Land Use and Institutionalized

Persons Act (“RLUIPA”). We will follow that order in our analysis.

A.

Establishment Clause claim

In his complaint, Gutierrez argues TDCJ’s execution policy prohibiting

a chaplain from being present in the execution chamber violates the

Establishment Clause because it is not neutral between religion and nonreligion and inhibits the practice of religious beliefs.

5

A5

Case: 20-70009

Document: 00515451509

Page: 6

Date Filed: 06/12/2020

No. 20-70009

The parties do not on agree as to which constitutional standard is

applicable.

Gutierrez argues this policy should be reviewed under strict

scrutiny. The State argues we should apply a test of reasonableness derived

from Turner v. Safley, 482 U.S. 78 (1987). In Turner, the Supreme Court held

that “when a prison regulation impinges on inmates’ constitutional rights, the

regulation is valid if it is reasonably related to legitimate penological

interests.” Turner, 482 U.S. at 89. The regulations reviewed by the Turner

Court included restrictions on inmate-to-inmate mail and inmates’ right to

marry. Id. at 81. We conclude Turner applies.

Under Turner, we consider:

(1) whether a “valid, rational connection [exists] between the

prison regulation and the legitimate governmental interest put

forward to justify it,” (2) whether there exist “alternative means of

exercising the fundamental right that remain open to prison

inmates,” (3) what “impact accommodation of the asserted

constitutional right will have on guards and other inmates, and on

the allocation of prison resources generally,” and (4) whether there

is an “absence of ready alternatives” to the regulation in question.

Adkins v. Kaspar, 393 F.3d 559, 564 (5th Cir. 2004) (quoting Turner, 482 U.S.

at 89–90). Gutierrez fails to make a strong showing of a likelihood of success

in establishing that TDCJ’s execution policy is not “reasonably related to

legitimate penological interests.” Turner, 482 U.S. at 89.

B.

Free Exercise Clause claim

Gutierrez’s claim that TDCJ’s execution policy violates the Free Exercise

Clause is largely a recitation of his Establishment Clause claim.

Again,

Gutierrez argues TDCJ’s policy cannot survive strict scrutiny.

Circuit

precedent, as the district court agreed in this case, requires application of

Turner to a Free Exercise claim. See Brown, 929 F.3d at 232–42. We have

identified the factors in our discussion of the Establishment Clause, and they

similarly prevent success for Gutierrez’s Free Exercise claim.

6

A6

Case: 20-70009

Document: 00515451509

Page: 7

Date Filed: 06/12/2020

No. 20-70009

Among Gutierrez’s arguments is that the prior policy, which would

satisfy his interest, allowed only Christian or Muslim spiritual advisors into

the execution chamber. See Murphy v. Collier, 139 S. Ct. 1475 (2019). There

was a suggestion by one justice that what would end the Equal Protection claim

would be to prohibit any ministers or religious advisors into the execution

chamber itself but permit all to be in the viewing room.

Id. at 1475–76

(Kavanaugh, J., concurring to grant of a stay). The TDCJ decided to take that

advice.

One justice’s views are not precedent, but we conclude that the

concurring opinion made a valid appraisal of the issue. Gutierrez is unlikely

to establish that TDCJ’s execution policy is not “reasonably related to

legitimate penological interests.” Turner, 482 U.S. at 89.

Having denied the legal argument, we acknowledge the strong religious

arguments made by Gutierrez and also in an amicus brief from the Texas

Catholic Conference of Bishops. We can apply only the legal standards and

have concluded that what the State has done here satisfies those.

C.

RLUIPA claim

The RLUIPA provides that the government shall not “impose a

substantial burden” on an inmate’s religious exercise, unless the government

demonstrates that imposition of the burden on that person “(1) is in

furtherance of a compelling governmental interest; and (2) is the least

restrictive means of furthering that compelling governmental interest.” 42

U.S.C. § 2000cc-1(a). Gutierrez bears the burden of demonstrating the policy

imposes a “substantial burden” on his religious exercise. Adkins, 393 F.3d at

567.

Gutierrez argues that TDCJ’s policy disallowing chaplains and spiritual

advisors in the execution chambers is a substantial burden on his religious

exercise because the policy prohibits him from receiving a Christian chaplain’s

guidance just before death. Yet Gutierrez has failed to show that this policy

7

A7

Case: 20-70009

Document: 00515451509

Page: 8

Date Filed: 06/12/2020

No. 20-70009

“creates a ‘substantial burden’ on a religious exercise [that] truly pressures the

adherent to significantly modify his religious behavior and significantly violate

his religious beliefs.” Id. at 570. Perhaps Gutierrez is being denied the final

measure of spiritual comfort that might be available. As important as that is,

government action does not rise to the level of a substantial burden on religious

exercise if it merely prevents the adherent from enjoying some benefit that is

not otherwise generally available. Id.

We conclude that Gutierrez does not have a reasonable likelihood of

success on any of his First Amendment claims or under RLUIPA.

III.

Remaining stay factors

Because Gutierrez fails to show likelihood of success on the merits as to

his DNA and chaplain claims, he fails to satisfy the first factor warranting a

stay of execution. As to the second factor, the possibility of irreparable injury

in a capital case weighs heavily in the movant’s favor. O’Bryan v. Estelle, 691

F.2d 706, 708 (5th Cir. 1982). Nevertheless, there comes a time when the legal

issues “have been sufficiently litigated and relitigated so that the law must be

allowed to run its course.” Id. Given the extent of Gutierrez’s litigation and

re-litigation of claims in both state and federal court, we conclude he has not

made a showing of irreparable injury. Because the first two, and most critical

factors do not weigh in Gutierrez’s favor, and neither do the remaining two, we

conclude the district court abused its discretion in granting Gutierrez’s motion

to stay his execution.

The motion to vacate the stay of execution is GRANTED.

8

A8

Case 1:19-cv-00185 Document 48 Filed on 06/02/20 in TXSD Page 1 of 31

United States District Court

Southern District of Texas

ENTERED

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

RUBEN GUTIERREZ,

June 02, 2020

David J. Bradley, Clerk

§

§

§

§ CIVIL NO. 1:19-CV-00185

§

§

§

§

Plaintiff,

VS.

LUIS V SAENZ, et al,

Defendants.

MEMORANDUM AND ORDER

The Court is in receipt of Defendant’s Motion to Dismiss for Lack of Subject

Matter Jurisdiction and Failure to State a Claim Upon which Relief can be Granted,

Dkt. No. 46. The Court is also in receipt of Plaintiff Ruben Gutierrez’s (Gutierrez’s)

Response in Opposition to the Motion to Dismiss and Motion for Stay of Execution,

Dkt. No. 47. This memorandum is divided into two parts, one considering the

motion to dismiss the DNA claims the other considering the motion to dismiss the

execution-chamber claims.

For the reasons stated below the Court GRANTS IN PART and DENIES IN

PART Defendants’ Motion to dismiss, Dkt. No. 46. The Court does not address the

motion to stay execution in this Memorandum and Order and will consider that

motion in a separate order.

I.

Jurisdiction

This action arises under 42 U.S.C. § 1983. This Court has jurisdiction under 28

U.S.C. §§ 1331, 1343. Additionally, the Supreme Court determined in Skinner v.

Switzer that a § 1983 action is the proper vehicle for a suit challenging a state DNA

testing statute. Skinner v. Switzer, 562 U.S. 521, 534 (2011).

II.

Background

Gutierrez is incarcerated at the Allan B. Polunsky Unit of the Texas Department

of Criminal Justice (“TDCJ”) in Livingston, Texas. Dkt. No. 45 at 4-5. Pursuant to

1 / 31

A9

Case 1:19-cv-00185 Document 48 Filed on 06/02/20 in TXSD Page 2 of 31

February 28, 2020 Order Setting Execution Date he is scheduled to be executed on

June 16, 2020 after 6:00 p.m. Id. Gutierrez was indicted along with Rene Garcia

and Pedro Garcia for the robbery and murder of Escolastica Harrison (“Ms.

Harrison”). Id. at 6. Pedro Garcia was released on bond and absconded. Id. Rene

Garcia pleaded guilty and was sentenced to life imprisonment. Id. Gutierrez

pleaded not guilty, was tried by a jury, convicted, and sentenced to death in 1999.

Id. at 7. In this suit, Gutierrez has named as Defendants Luis V. Saenz (“Saenz”),

District Attorney for the 107th Judicial District; Felix Sauceda, Jr. (“Sauceda”),

Chief of the Brownsville Police Department; Bryan Collier (Collier”), Executive

Director of the TDCJ; Lorie Davis (“Davis”), director of the Correctional Institutions

Division of the TDCJ and Billy Lewis (“Lewis”), the senior warden of the Huntsville

Unit where inmates are executed. Dkt. No. 45.

On August 27, 2010, Judge Benjamin Euresti, Jr., the presiding judge of the

107th District Court, denied Gutierrez DNA testing under Chapter 64 of the Texas

Code of Criminal Conduct and Procedure (“Chapter 64”). Dkt. No. 45 at 9; Tex.

Crim. Proc. Code art. 64. The Texas Court of Criminal Appeals (“CCA”) affirmed a

denial of testing on the merits in 2011. Dkt. No. 45 at 9; Ex parte Gutierrez, 337

S.W.3d 883, 886 (Tex. Crim. App. 2011). On June 14, 2019, Gutierrez again sought

DNA testing under a revised version of the statute. Dkt. No. 45 at 12-13. Judge

Euresti granted the request on June 20, 2019 and his order was filed at 9:09 a.m.

On June 27, 2019, two events occurred: at 11:10 a.m. Judge Euresti withdrew his

order granting testing and at 11:13 a.m. he denied the motion for testing. Dkt. Nos.

1-1 at 3-5; 45 at 13; Ex parte Gutierrez, No. 98-CR-1391- A, Order (Tex. 107th

Judicial Dist. Ct. June 20, 2019).1 The CCA affirmed the 2019 denial of testing on

the merits in 2020. Dkt. No. 45 at 13; Gutierrez v. State, No. AP-77,089, 2020 WL

918669, at *1 (Tex. Crim. App. Feb. 26, 2020).

1

The Court takes judicial notice of the proceedings in Ex Parte Ruben Gutierrez, 98-CR-1391-A (Tex. 107th

Judicial Dist. Ct.).

2 / 31

A10

Case 1:19-cv-00185 Document 48 Filed on 06/02/20 in TXSD Page 3 of 31

A. Complaint

This action arises under 42 U.S.C. § 1983 and challenges the constitutionality of

Chapter 64. Dkt. No. 45 at 3; Tex. Crim. Proc. Code art. 64. Gutierrez challenges

the constitutionality of post-conviction DNA testing section on its face and as it has

been applied to him. Id. He claims the statute violates procedural due process

because it denies a movant the ability to test evidence that would demonstrate he is

innocent of the death penalty and it is unequally and unfairly applied to someone

who is convicted under the law of parties. He also claims its different outcome

standard is overbroad. Dkt. No. 45 at 25-26.

Gutierrez also claims a violation of his First Amendment right to access the

courts, and his Eighth Amendment right to be free from cruel and unusual

punishment. Id. at 31. He seeks a declaratory judgment holding Chapter 64

unconstitutional. Id. at 37.

Gutierrez challenges the State’s refusal to release biological evidence for testing

and requests an order declaring that the withholding of evidence for testing violates

his rights and requests a preliminary and permanent injunction requiring the

evidence be released for testing. Id. at 38. Gutierrez seeks testing of:

blood sample taken from Ms. Harrison and retained by the Texas DPS

McAllen Laboratory, pending pick up by the District Attorney;

nightgown belonging to Ms. Harrison that may have touch DNA from her

assailant(s);

shirt belonging to Ms. Harrison’s nephew and housemate, Avel Cuellar,

containing apparent blood stains; retained by the Texas DPS McAllen

Laboratory pending pick up by the District Attorney;

nail scrapings in which “[a]pparent blood was detected” were taken from

Ms. Harrison during autopsy and submitted to Det. Hernandez as part of

rape examination kit;

blood samples collected from a bathroom, from a raincoat located in or

just outside Avel Cuellar’s bedroom, and from the sofa in the front room

of Ms. Harrison’s house; and

3 / 31

A11

Case 1:19-cv-00185 Document 48 Filed on 06/02/20 in TXSD Page 4 of 31

a single loose hair found around the third digit of the victim’s left hand

recovered during autopsy and submitted to Det. Hernandez as part of

rape examination kit.

Dkt. No. 45 at 17-18.

Gutierrez claims he will be executed under conditions that violate the First

Amendment’s Free Exercise and Establishment Clauses and that substantially

burden the exercise of his religious beliefs protected by the Religions Land Use and

Institutionalized Persons Act (“RLUIPA”) of 2000, 42 U.S.C. § 2000cc et seq. Id. at

15. He claims relief is necessary to ensure he is executed in way that does not

unfairly burden the exercise of his religious beliefs. Id. at 4.

Gutierrez requested a TDCJ-employed chaplain to accompany him during his

final moments in the execution chamber. His request was denied based on the

TDCJ execution procedure adopted on April 2, 2019, which prohibits all religious or

spiritual advisors from entering the execution chamber. That TDCJ policy now

states: “TDCJ Chaplains and Ministers/Spiritual Advisors designated by the

offender may observe the execution only from the witness rooms.” Facing an

execution date, Gutierrez filed this lawsuit requesting “a reasonable accommodation

to have a Christian chaplain in the execution chamber when he is executed . . . .”

Dkt. No. 45 at 3.

Gutierrez maintains “having a Christian chaplain present in the chamber would

help to ensure his path to the afterlife.” Dkt. No. 45 at 14. Gutierrez alleges that

TDCJ previously had a policy which “allowed a TDCJ-approved chaplain to be

present inside the execution chamber at the time of execution, and that both TDCJ

Chaplains J. Guy and Wayne Moss have indicated that they are willing to be

present in the chamber at his execution (but for TDCJ’s April 2019 Execution

Procedure).” Dkt. No. 45 at 14. Gutierrez argues that TDCJ’s new execution protocol

violates (1) the First Amendment’s Establishment Clause because it is not neutral

between religions (claim four); (2) his Free Exercise rights by interfering with his

ability to practice his religion (claim five); and (3) the Religious Land Use and

4 / 31

A12

Case 1:19-cv-00185 Document 48 Filed on 06/02/20 in TXSD Page 5 of 31

Institutionalized Persons Act, 42 U.S.C. § 2000cc, et seq. (“RLUIPA”) (claim six). 2

Gutierrez requests a declaratory judgment that TDCJ’s current policy violates the

First Amendment and RLUIPA.

Gutierrez also requests a preliminary and permanent injunction prohibiting his

execution until it can proceed in a manner that does not violate his rights.

III.

Motion to Dismiss

Defendants filed a motion to dismiss for lack of subject matter jurisdiction and

failure to state a claim on which relief can be granted. Dkt. No. 46; See Fed. R. Civ.

P. 12. Defendants argue in their motion that:

Gutierrez is requesting mandamus relief for DNA testing, something it

does not have jurisdiction to order. Id. at 17.

Gutierrez’s complaint is also a collateral attack on a state court decision

rather than the Texas DNA testing statute and that the claims fail under

the Rooker-Feldman doctrine for lack of jurisdiction. Id. at 30.

They are entitled to Eleventh Amendment immunity to the extent

Gutierrez seeks anything beyond declaratory and injunctive relief. Id. at

26.

The DNA testing claim is untimely. Id. at 33.

Gutierrez’s due process claims are barred by issue preclusion. Id. 37.

Gutierrez’s DNA challenge to his execution is only cognizable in habeas

corpus. Id. at 38.

Gutierrez’s claims are “patently meritless” and the Texas DNA testing

statutory framework protects inmates’ rights. Id. at 39-61.

The testing framework as written and applied by the CCA does not offend

fundamental fairness and Gutierrez’s claim fails as a matter of law. Id. at

46.

2

Gutierrez’s execution-chamber claims only apply to Defendants Davis, Collier, and Lewis.

5 / 31

A13

Case 1:19-cv-00185 Document 48 Filed on 06/02/20 in TXSD Page 6 of 31

This Court should dismiss Gutierrez’s execution-chamber claims because

he did not exhaust remedies by completing the prison grievance process.

Id. at 22.

Gutierrez’s execution-chamber claims fail to state a claim upon which

relief can be granted. Id. at 77.

Gutierrez’s response to the motion to dismiss also includes a motion for stay of

execution. Dkt. No. 47. He avers that he does not seek mandamus relief and that his

claims are not subject to dismissal on jurisdictional grounds. Id. at 12, 22. Gutierrez

argues his claims are not barred by the statute of limitations and issue preclusion

does not bar his due process claims. Id. at 38. Gutierrez generally argues the Court

has jurisdiction to consider his claims and that he states claims upon which relief

can be granted. Id.; see Fed. R. Civ. P. 12. Gutierrez contends that his religion

claims are exhausted and that he states a claim upon which relief can be granted.

Dkt. No. 47 at 71-72. Gutierrez argues he may seek declaratory and injunctive relief

from Defendants and that he names appropriate defendants for his lawsuit. Id. at

22.

IV.

Motion to Dismiss Legal Standard

A. 12(b)(1) Lack of Subject Matter Jurisdiction

Federal Rule of Civil Procedure 12(b)(1) allows a defendant to assert a “lack

of subject-matter jurisdiction” defense. Fed. R. Civ. P. 12(b)(1). In Paterson v.

Weinberger, the Fifth Circuit distinguished between Rule 12(b)(1) facial and factual

attacks: [I]f the defense merely files a Rule 12(b)(1) motion [and thereby makes a

“facial attack”], the trial court is required merely to look to the sufficiency of the

allegations in the complaint because they are presumed to be true. If those

jurisdictional allegations are sufficient, the complaint stands. If a defendant makes

a “factual attack” upon the court’s subject matter jurisdiction over the lawsuit, the

defendant submits affidavits, testimony, or other evidentiary materials. Paterson v.

Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). A Rule 12(b)(1) motion should be

granted when “it appears certain that the plaintiff cannot prove a plausible set of

6 / 31

A14

Case 1:19-cv-00185 Document 48 Filed on 06/02/20 in TXSD Page 7 of 31

facts that establish subject-matter jurisdiction.” Carroll v. Abide, 788 F.3d 502, 504

(5th Cir. 2015).

B. 12(b)(6) Failure to State a Claim Upon Which Relief Can be

Granted

Federal Rule of Civil Procedure 12(b)(6) authorizes a defendant to move to

dismiss for “failure to state a claim upon which relief can be granted.” Fed. R. Civ.

P. 12(b)(6). When performing a Rule 12(b)(6) analysis, all well-pleaded facts in the

complaint must be accepted as true, and the complaint must be construed in a light

most favorable to the plaintiff. SEC v. Cuban, 620 F.3d 551, 553 (5th Cir. 2010). To

prevail past a motion to dismiss “[f]actual allegations must be enough to raise a

right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007). “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to

relief’ requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Id. A complaint does not need detailed

factual allegations. Id. A claim survives a motion to dismiss when the plaintiff

“pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009). The standard is one of plausibility not probability. Id. The court is not

ruling on whether it is likely the plaintiff will prevail but rather whether the

plaintiff may proceed to offer evidence in support of its claims. See id. In evaluating

a plaintiff’s complaint in light of a defendant’s motion to dismiss under Rule

12(b)(6), a court may “begin by identifying pleadings that, because they are no more

than conclusions, are not entitled to the assumption of truth.” Id. at 679. It is not

the duty of this Court to create a claim which has not been spelled out in the

pleading. Case v. State Farm Mut. Auto. Ins. Co., 294 F.2d 676, 678 (5th Cir. 1961).

7 / 31

A15

Case 1:19-cv-00185 Document 48 Filed on 06/02/20 in TXSD Page 8 of 31

DNA TESTING CLAIMS

V.

Legal Standard

A. Section 1983 DNA Testing Challenge: Osborne and Skinner

The U.S. Supreme Court stated in Osborne and then in Skinner that challenges

to DNA testing procedures may be brought in a § 1983 action because requesting

access to testing does not necessarily imply the guilt or innocence of a defendant as

the defendant is not yet in possession of exculpatory evidence. Skinner v. Switzer,

562 U.S. 521, 534 (2011); Dist. Attorney's Office for Third Judicial Dist. v. Osborne,

557 U.S. 52, 55, (2009).

Such § 1983 actions are limited but not barred by the Rooker-Feldman doctrine.

Skinner, 562 U.S. at 532. A challenge to the constitutional adequacy of state-law

procedures for post-conviction DNA testing is not within Rooker-Feldman’s ambit.

Id. So long as the Plaintiff does not challenge the adverse state court decisions

themselves “it is not an impediment to the exercise of federal jurisdiction that the

‘same or a related question’ was earlier aired between the parties in state court.”

Skinner, 562 U.S. at 532.

DNA testing is a powerful tool in the criminal justice system and states are

experimenting with the challenges and opportunities posed by DNA evidence. Dist.

Attorney's Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 62 (2009). The

Supreme Court decided in Osborne to not constitutionalize the area of DNA testing

so as to not “short-circuit what looks to be a prompt and considered legislative

response” from the states. Id. Accordingly, there is no “freestanding” substantive

due process right to access DNA evidence, and federal courts should not presume

that state criminal procedures are inadequate to deal with DNA evidence. Osborne,

557 U.S. at 73-74. Post-conviction DNA testing claims are not “parallel” to a trial

right and are not analyzed under the Brady framework. Id. at 69; see Brady v.

Maryland, 373 U.S. 83 (1963).

Yet, a state’s DNA testing procedures must still comply with some baseline

constitutional protections. Osborne, 557 U.S. at 69. The questions a court asks are

8 / 31

A16

Case 1:19-cv-00185 Document 48 Filed on 06/02/20 in TXSD Page 9 of 31

1) whether the state has granted a liberty interest in demonstrating innocence with

new evidence; and 2) whether the procedures for vindicating that liberty interest

are adequate. Id. Such procedures must not “‘offend[] some principle of justice so

rooted in the traditions and conscience of our people as to be ranked as

fundamental,’ or ‘transgress[] any recognized principle of fundamental fairness in

operation.’” Id. (citing Medina v. California, 505 U.S. 437, 446 (1992)). Federal

courts may only disturb a State’s postconviction procedures if they are

“fundamentally inadequate to vindicate the substantive rights provided.” Id. To

determine if a procedure violates procedural due process a court looks to the

standards of the common law as they existed at the time of adoption of the Fifth

and Fourteenth Amendment. Patterson v. New York, 432 U.S. 197, 202 (1977).

Additionally, a procedure should not offend “some principle of justice so rooted in

the traditions and conscience of our people as to be ranked as fundamental.” Id.

Widespread acceptance or rejection among the states may indicate whether

procedure is contrary to the conscience of the people. Id.

The Court in Osborne found “nothing inadequate” with Alaska’s postconviction

DNA testing procedures. Osborne, 557 U.S. at 69-70. The Court noted that Alaska’s

procedures requiring evidence to be newly available, diligently pursued and

sufficiently material are similar to federal law and the law of other states and are

not inconsistent with the conscience of the people or fundamental fairness. Id. at 70.

The Court stated Alaska’s constitutionally created right of DNA access provided

additional protection to parties who may not be able to seek testing under statute.

Id. The Osborne Court noted that exhaustion of a state law remedy is not required

but can be useful to demonstrate that the procedures do not work in practice. Id. at

71.

Circuit courts addressing 1983 DNA complaints have encountered facial and

“as-applied” procedural Due Process claims. An as-applied challenges is not

permissible if used to collaterally attack the state court judgment. McKithen v.

Brown, 481 F.3d 89, 98–99 (2d Cir. 2007) (“by bringing an as-applied challenge,

[Plaintiff] is asking the federal district court to review the validity of the state court

9 / 31

A17

Case 1:19-cv-00185 Document 48 Filed on 06/02/20 in TXSD Page 10 of 31

judgment”); Alvarez v. Attorney Gen. for Fla., 679 F.3d 1257, 1263 (11th Cir. 2012)

(holding that the Rooker-Feldman doctrine bars Plaintiff’s as applied procedural

due process attack on the state court judgment); Wade v. Monroe Cty. Dist. Attorney,

800 F. App'x 114, 119 (3d Cir. 2020) (reversing because “the state court entered a

ruling based upon Wade’s situation, and made no broad pronouncement about how

the statute should be construed in all cases”).

Instead, an as-applied challenge is permissible so far as it illuminates the

authoritative construction of a state law to determine constitutional adequacy.

Morrison v. Peterson, 809 F.3d 1059, 1070 (9th Cir. 2015) (finding plaintiff’s as

applied challenge is permissible and “merely argues a defect that is not apparent

from the face of the statute.”) The Second Circuit approved of a plaintiff’s as-applied

challenge and reinstated a jury verdict which determined plaintiff was deprived of

procedural due process by the city’s poor evidence handling system. Newton v. City

of New York, 779 F.3d 140, 159 (2d Cir. 2015).

In unpublished opinions, the Fifth Circuit has repeatedly identified Article 64

of the Texas Code of Criminal Procedure as a substantive right created by the state

for post-conviction DNA testing. “Texas has created a right to post-conviction DNA

testing in Article 64 of the Texas Code of Criminal Procedure. Thus, ‘[w]hile there is

no freestanding right for a convicted defendant to obtain evidence for postconviction DNA testing, Texas has created such a right, and, as a result, the state[]provided procedures must be adequate to protect the substantive rights provided.’”

Emerson v. Thaler, 544 F. App'x 325, 327–28 (5th Cir. 2013) (quoting Elam v. Lykos,

470 F. App’x. 275, 276 (5th Cir.2012)).

B. Eleventh Amendment Immunity and Proper Defendants

The Eleventh Amendment provides state officials immunity from suit in

federal court. An exception exists when a state actor enforces an unconstitutional

law. K.P. v. LeBlanc, 627 F.3d 115, 124 (5th Cir. 2010). “Immunity does not bar

suits against defendants in their official capacities.” Johnson v. Kegans, 870 F.2d

992, 998 (5th Cir. 1989). To be a proper defendant in such a declaratory/injunctive

action a defendant must have a connection to the enforcement of the disputed act.

10 / 31

A18

Case 1:19-cv-00185 Document 48 Filed on 06/02/20 in TXSD Page 11 of 31

K.P., 627 F.3d at 124. In Skinner, the Court found the plaintiff had properly stated

a claim against Lynn Switzer, a district attorney, whose office had custody of the

evidence plaintiff sought to have tested. Skinner v. Switzer, 562 U.S. at 529; see also

Emerson, 544 F. App'x at 328 n. 2.

C. Access to the Courts

Prisoners have a right to some legal assistance to have meaningful access to the

Courts. Lewis v. Casey, 518 U.S. 343, 350, 116 S. Ct. 2174, 2179, 135 L. Ed. 2d 606

(1996). But access to the Courts does not encompass the ability to discover

grievances. Id.

VI.

DNA Testing Analysis

A. Subject Matter Jurisdiction and Rooker-Feldman

This Court does not have jurisdiction to consider a challenge to the CCA’s

decisions on Gutierrez’s DNA testing motion itself, as it is barred by the RookerFeldman doctrine. See Lance, 546 U.S. at 463 (noting the “aggrieved litigant cannot

be permitted to do indirectly what he no longer can do directly”). Such a challenge,

if successful, would effectively nullify a state court judgment, and only the Supreme

Court is vested with jurisdiction for appeals from final state-court judgments. See

id. The Court additionally does not have subject matter jurisdiction over Gutierrez’s

as-applied challenge to the extent it seeks to relitigate his state DNA testing

complaint, as it also falls under the ambit of Rooker-Feldman as well. See id;

Alvarez., 679 F.3d at 1263; Wade v. Monroe Cty. Dist. Attorney, 800 F. App'x 114,

119 (3d Cir. 2020).

Gutierrez states in his response that he does not seek mandamus relief to

compel a different outcome from the one he received from the CCA. Dkt. No. 47 at

19. Yet, Gutierrez also asks the Court in his complaint to issue a “preliminary and

permanent injunction requiring Defendants to produce and release for DNA testing”

evidence he desires tested. Dkt. No. 46 at 38. The Court does not have jurisdiction

to order such testing because it runs aground on a Rooker-Feldman shoal. See

Lance, 546 U.S. at 463; Skinner, 562 U.S. at 532.

11 / 31

A19

Case 1:19-cv-00185 Document 48 Filed on 06/02/20 in TXSD Page 12 of 31

Accordingly, the Court GRANTS Defendant’s motion to dismiss for lack of

subject matter jurisdiction for claims which seek direct relief of a state court

judgment, as barred by the Rooker-Feldman doctrine. See Lance, 546 U.S. at 463;

Carroll, 788 F.3d at 504; Skinner v. Switzer, 562 U.S. at 532.

Yet just because some claims may be barred by the narrow Rooker-Feldman

doctrine, that does not mean all causes of action relating to a state-court proceeding

are barred. Lance, 546 U.S. at 464. This Court does have subject matter jurisdiction

to consider federal questions, such as those brought within a § 1983 civil action for

the deprivation of rights. Osborne, 557 U.S. at 69-70; Skinner, 562 U.S. at 532.

Gutierrez’s complaint articulates numerous federal grounds of relief regarding the

DNA testing statute itself, for example: “a declaratory judgment that Article 64 of

the Texas Code of Criminal Procedure, as applied by the CCA, is unconstitutional.”

See id.; Dkt. No. 45 at 36. Accordingly, just as the Courts in Osborne and Skinner

had jurisdiction, this Court has jurisdiction to consider those questions and

DENIES Defendants’ motion to dismiss for lack of jurisdiction. See id.; Carroll, 788

F.3d at 504; Osborne, 557 U.S. at 69-70; Skinner, 562 U.S. at 532; Elam v. Lykos,

470 F. App’x. 275, 276 (5th Cir. 2012).

B. Eleventh Amendment and Proper Defendants

The Court must consider whether suit against defendants in this action is

barred by the Eleventh Amendment. In DNA testing challenges district attorneys

have been accepted as an appropriate defendant under the declaratory relief

exception to Eleventh Amendment immunity because of their custodianship of the

evidence at issue and role in the statute itself. Skinner, 562 U.S. at 529; see also,

Morrison v. Peterson, 809 F.3d 1059, 1070 (9th Cir. 2015); McKithen v. Brown, 481

F.3d 89, 98–99 (2d Cir. 2007); Wade v. Monroe Cty. Dist. Attorney, 800 F. App'x 114,

119 (3d Cir. 2020).

Here, Saenz and Sauceda are the parties who have custody over the evidence

Gutierrez seeks to have tested under the DNA statute. Because of their connection

to the statute, its constitutionality directly implicates their duties under it. See Tex.

Crim. Proc. Code art. 64. This Court again follows the path laid down by the

12 / 31

A20

Case 1:19-cv-00185 Document 48 Filed on 06/02/20 in TXSD Page 13 of 31

Supreme Court in Skinner and concludes the Eleventh Amendment does not bar

suit against Sauceda and Saenz for purposes of this DNA testing challenge for

declaratory and injunctive relief. See id.

Defendants’ argument that Saenz is absolutely immune from suit is

misplaced as Saenz is being sued in his official capacity. Just as in Skinner, where a

District Attorney was properly subject to suit in a DNA testing challenge, Saenz

and Sauceda are proper parties here. See Skinner, 562 U.S. at 529; Johnson, 870

F.2d at 998 n.5.

Gutierrez states that the other Defendants are party to this suit for his

religion claims, therefore it would be improper to dismiss them for a lack of

connection to his DNA claims. See Dkt. No. 47 at 31. Accordingly, the Court

DENIES Defendants’ motion to dismiss on Eleventh Amendment grounds.

C. Stating a DNA Claim Under Osborne and Skinner

Gutierrez’s claims challenge the constitutionality of the DNA testing statute

on its face and as applied. Dkt. No. 45. He claims the statute violates procedural

due process because: it denies a movant the ability to seek testing of evidence that

would demonstrate he is innocent of the death penalty and it is unequally and

unfairly applied to people who are convicted as a party. He argues the “different

outcome” standard is overbroad. Dkt. No. 45 at 25-26. These claims are emblematic

of claims upon which relief can be granted as they clearly state the alleged harm

and relief requested. Indeed, this challenge tracks precisely the bounds of a DNA

statute challenge the Supreme Court set out in Osborne and Skinner. See Osborne,

557 U.S. at 69-70; Skinner, 562 U.S. at 529.

As opposed to other claims that have been dismissed as frivolous or masked

collateral attacks on state court judgments, Gutierrez descriptively identifies how

Chapter 64 and its authoritative interpretation by the CCA may be denying a

constitutional right. See Elam, 470 F. App’x. at 276; Morrison, 809 F.3d at 1070;

McKithen, 481 F.3d at 98–99; Wade, 800 F. App'x at 119; Alvarez., 679 F.3d at 1263.

The Court DENIES Defendants’ motion to dismiss for failure to state a claim

regarding Gutierrez’s claims challenging the constitutionality of Chapter 64.

13 / 31

A21

Case 1:19-cv-00185 Document 48 Filed on 06/02/20 in TXSD Page 14 of 31

D. DNA Testing Statute of Limitations

The CCA considered Gutierrez’s Chapter 64 DNA testing motion on the

merits on February 26, 2020. Gutierrez v. State, No. AP-77,089, 2020 WL 918669, at

*1 (Tex. Crim. App. Feb. 26, 2020). The CCA’s 2020 opinion was also the first time it

considered Gutierrez’s claims under a revised version of the DNA testing statute.

Id. Therefore, the CCA’s decision began a new accrual period that was distinct from

Gutierrez’s 2009 petition under a prior version of the statute. See Ex parte

Gutierrez, 337 S.W.3d 883, 886 (Tex. Crim. App. 2011). February 26, 2020 is the

date Gutierrez would have reason to know of his alleged injury, and he filed his

amended complaint April 22, 2020, well within the two-year statute of limitations

period. See Dkt. No. 45; Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993);

Piotrowski, 237 F.3d at 576.

The Court DENIES Defendants’ motion to dismiss for failure to state a claim

on statute of limitations grounds.

E. DNA Testing Issue Preclusion

A § 1983 challenge for the deprivation of a constitutional right is not the

same as a Chapter 64 motion for DNA testing, nor was the DNA testing motion

litigated or ruled on as a deprivation of right challenge. See Dkt. No. 45; Gutierrez v.

State, No. AP-77,089, 2020 WL 918669, at *1 (Tex. Crim. App. Feb. 26, 2020).

Gutierrez cannot know of, or challenge how a court will interpret and apply the

statute to form the basis of a § 1983 suit for deprivation of constitutional right

before such an interpretation is issued. See id. There is no record before the Court

that Gutierrez litigated the constitutionality of the CCA’s 2020 interpretation of the

DNA testing statute in any other forum. Accordingly, issue preclusion does not

apply. See Weaver v. Texas Capital Bank N.A., 660 F.3d 900, 906 (5th Cir. 2011).

The Court DENIES Defendants’ motion to dismiss for failure to state a claim

on issue preclusion grounds.

F. Eighth Amendment Claims

Gutierrez’s Eighth Amendment claim, that the DNA statute allows an

execution to be carried out in a cruel and unusual way because it permits the

14 / 31

A22

Case 1:19-cv-00185 Document 48 Filed on 06/02/20 in TXSD Page 15 of 31

execution of an innocent person, does not fall within the bounds of Osborne and

Skinner. See Dkt. No. 45 at 37-38; Skinner, 562 U.S. 521. DNA statute claims are

allowed to proceed under § 1983 because they do not challenge the guilt or

innocence of the defendant. Osborne, 557 U.S. at 69-70; Skinner, 562 U.S. at 532.

An essential element of Gutierrez’s Eighth Amendment challenge is his purported

innocence; therefore, the Court finds this claim necessarily implies the invalidity of

the conviction and a remedy is not available in this § 1983 action. Heck v.

Humphrey, 512 U.S. 477, 487 (1994); Skinner, 562 U.S. 521. The Court GRANTS

Defendants’ motion to dismiss Gutierrez’ Eighth Amendment DNA testing claims

for failure to state a claim upon which relief can be granted.

G. Access to Courts

Gutierrez’s complaint does not state facts demonstrating a denial of

mandated legal assistance, or other access to court issues. See Dkt. No. 45. A denial

of DNA testing on the merits does not create an access to the courts claim as he has

access to the Courts to litigate his grievances. See Dkt. No. 45 at 37; Lewis v. Casey,

518 U.S. 343, 350, 354 (1996). Accordingly, the Court GRANTS Defendants’ motion

to dismiss Gutierrez’s access to the courts claim for failure to state a claim.

H. Merit of Gutierrez DNA Statute Claims

Defendants argue Gutierrez’s DNA statute claims fail on the merits because

nothing in the statute or the CCA’s opinions violates procedural due process. Dkt.

No. 46 at 39. Defendants correctly identify the Medina test that governs criminal

procedural due process for DNA claims. Dkt. No. 46 at 60. However, Defendants fail

to apply the Medina factors to Gutierrez’s complaint. Id. Defendants do not cite

binding authority as to why Texas’ DNA testing statute is constitutional on its face

and as applied by the CCA. Dkt. No. 46 at 73. The legal waters become murkier

when Defendants improperly state the DNA standard under review in Osborne,3

and cite the CCA’s own opinion for the proposition that Gutierrez is not entitled to

DNA testing for evidence that could show he is innocent of the death penalty. Id.

3

The standard cited by Defendants, Dkt. No. 46 at 58, is the post-conviction relief standard in Alaska, not the

standard for access to DNA testing. Osborne, 557 U.S. at 65.

15 / 31

A23

Case 1:19-cv-00185 Document 48 Filed on 06/02/20 in TXSD Page 16 of 31

In Gutierrez’s complaint and response, he argues for relief based on several

legal claims that the Court is dismissing in this opinion. Neither party has

demonstrated a success or failure on the merits of Gutierrez’s complaint and the

fundamental adequacy of the process provided under Texas’ DNA testing statute.

See Osborne, 557 U.S. at 69; Medina v. California, 505 U.S. 437, 446; Patterson v.

New York, 432 U.S. 197, 202; see e.g., Harris v. Lykos, No. 12-20160, 2013 WL

1223837, at *1 (5th Cir. Mar. 27, 2013). The Court expects the narrowing of issues

will focus the legal briefing as this case progresses.

EXECUTION-CHAMBER CLAIMS

VII.

Legal Standard

A. PLRA Exhaustion

Section 1997(e) of the Prison Litigation Reform Act (PLRA) provides that

“[n]o action shall be brought with respect to prison conditions under section 1983 of

this title, or any other Federal law, by a prisoner confined in any jail, prison, or

other correctional facility until such administrative remedies as are available are

exhausted.” 42 U.S.C. § 1997e(a). TDCJ’s grievance procedures require inmates to

complete a two-step grievance process before a claim is exhausted. See Rosa v.

Littles, 336 F. App’x 424, 428 (5th Cir. 2009) (citing Johnson v. Johnson, 385 F.3d

503, 515 (5th Cir. 2004)). Inmates must first file a Step One grievance within fifteen

days of any alleged incident. See Rosa, 336 F. App’x at 428. Inmates may then

appeal the Warden’s decision on the Step One grievance by filing a Step Two

grievance. Id. The Fifth Circuit “has held that, pursuant to the TDCJ’s grievance

process, a prisoner must pursue a grievance through both steps for it to be

exhausted.” Id.; see also Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001)

(stating that a prisoner must “pursue the grievance remedy to conclusion”).

The PLRA’s exhaustion requirement only requires a prisoner to complete

“administrative remedies as are available . . . .” 42 U.S.C. § 1997e(a) (emphasis

added). The Supreme Court has instructed that an inmate is only required to

16 / 31

A24

Case 1:19-cv-00185 Document 48 Filed on 06/02/20 in TXSD Page 17 of 31

exhaust those “grievance procedures that are ‘capable of use’ to obtain ‘some relief

for the action complained of.’” Ross v. Blake, ___ U.S. ___, 136 S. Ct. 1850, 1859

(2016) (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)) (emphasis added). An

inmate is not required to exhaust “an administrative remedy, although officially on

the books, [which] is not capable of use to obtain relief.” Ross, 136 S. Ct. at 1859; but

see Valentine v. Collier, 956 F.3d 797, 804 (5th Cir 2020) (“[S]o long as the State’s

administrative procedure grants authority to take some action in response to a

complaint, that procedure is considered available, even if it cannot provide the

remedial action an inmate demands.”) (emphasis added).

B. First Amendment

Regarding regulation of First Amendment rights, the Supreme Court has

“repeatedly emphasized [its] unwillingness to be confined to any single test or

criterion in this sensitive area.” Lynch v. Donnelly, 465 U.S. 668, 679 (1984).

Accordingly, the Supreme Court has provided different considerations in First

Amendment cases that depend on the context, including the Turner standard for

some constitutional claims in the prison context. Under Turner, a federal court

considers: (1) whether a “valid, rational connection exists between the prison

regulation and the legitimate governmental interest put forward to justify it,” (2)

whether there exist “alternative means of exercising the fundamental right that

remain open to prison inmates,” (3) what “impact accommodation of the asserted

constitutional right will have on guards and other inmates, and on the allocation of

prison resources generally,” and (4) whether there is an “absence of ready

alternatives” to the regulation in question. Turner v. Safley, 482 U.S. 78, 89 (1987).

In Lemon, the Supreme Court set out the general test for determining

whether a government practice violates the Establishment Clause. Lemon v.

Kurtzman, 403 U.S. 602, 612-13 (1971). Under Lemon, a court deciding whether

government policy or practice violates the Establishment Clause asks “(1) whether

the government activity in question has a secular purpose, (2) whether the activity’s

primary effect advances or inhibits religion, and (3) whether the government

17 / 31

A25

Case 1:19-cv-00185 Document 48 Filed on 06/02/20 in TXSD Page 18 of 31

activity fosters an excessive entanglement with religion.” Van Orden v. Perry, 351

F.3d 173, 177 (5th Cir. 2003).

C. RLUPIA

RLUIPA provides in part: “No government shall impose a substantial burden

on the religious exercise of a person residing in or confined to an institution,” unless

the burden furthers “a compelling governmental interest,” and does so by “the least

restrictive means.” RLUIPA “alleviates exceptional government-created burdens on

private religious exercise.” Cutter v. Wilkinson, 544 U.S. 709, 720 (2005).

Specifically, RLUPA states:

No government shall impose a substantial burden on the religious

exercise of a person residing in or confined to an institution, as defined

in section 1997 of this title, even if the burden results from a rule of

general applicability, unless the government demonstrates that

imposition of the burden on that person(1)

is in furtherance of a compelling governmental

interest; and

(2)

is the least restrictive means of furthering that

compelling governmental interest.

42 U.S.C. § 2000cc-1(a).

VIII.

Legal Analysis

A. PLRA Exhaustion

Gutierrez alleges he initially requested the presence of a TDCJ-employed

chaplain through informal means. Dkt. No. 45 at 15. Gutierrez states that he spoke

with TDCJ employees, filed an I-60 “Offender Request to Official” form, and had his

attorneys email TDCJ’s General Counsel on July 30, 2019 requesting a reasonable

accommodation. Dkt. No. 1-1 at 16-17. When those efforts were unsuccessful,

Gutierrez followed the formal grievance procedure by filing a Step One grievance on

August 19, 2019. Id. at 18. Prison officials did not respond to Gutierrez’s Step One

grievance. Gutierrez filed this lawsuit on September 26, 2019, and no further action

through the prison process has occurred. Dkt. No. 1.

18 / 31

A26

Case 1:19-cv-00185 Document 48 Filed on 06/02/20 in TXSD Page 19 of 31

Defendants argue that Gutierrez has failed to exhaust his administrative

remedies. According to Defendants, even though Gutierrez received no response he

should have proceeded to file a Step Two grievance and thus did not “satisfy even

the ‘spirit’ of the exhaustion rule.” Dkt. No. 46 at 22 n.10. Defendants support their

argument by citing cases in which the Fifth Circuit has found a lack of exhaustion

because an inmate failed to proceed to Step Two when he did not receive a response

from prison officials at Stage One. Dkt. No. 46 at 24-25 (collecting cases).

Gutierrez argues that his “inability to complete TDCJ’s grievance process,

however, was the direct result of Defendants’ own design.” Dkt. No. 47 at 15.

Gutierrez emphasizes that “TDCJ’s grievance procedures require the prison to

answer a Step 1 grievance before a prisoner can file a Step 2 appeal of that decision.

That requirement is made clear by TDCJ’s Offender Orientation Handbook, which

sets forth the grievance procedures.” Dkt. No. 47 at 15. With the execution date of

June 16, 2020, which was set on February 28, 2020, prison officials have not

responded to Gutierrez’s official requests.4

Gutierrez alleges that TDCJ

stonewalled to extinguish his complaints through the execution of his death

sentence. Gutierrez argues that the exhaustion requirement cannot require him to

disregard prison grievance procedure by filing a Step Two grievance without having

received a response from prison officials, particularly when his execution could

interrupt the grievance process. Dkt. No. 47 at 21-29.

Gutierrez also argues that a recent case indicates that exhaustion should be

forgiven here. Facing an execution date, Patrick Henry Murphy asked TDCJ

officials to allow his Buddhist spiritual advisor to accompany him in the execution

chamber. Unable to resolve the case through informal means, Murphy filed suit in

federal court without having filed a prison grievance. Murphy v. Collier, 423 F.

Supp. 3d 355, 361 (S.D. Tex. 2019). Notwithstanding his failure to exhaust, the U.S.

Supreme Court stayed Murphy’s execution. When the State of Texas again sought

an execution date during the pendency of Murphy’s litigation, the U.S. District

4

According to his pleadings, TDCJ general counsel informed Gutierrez’s attorneys by email

that his request for a spiritual adviser in the execution chamber was denied. Dkt. No. 45 at 14.

19 / 31

A27

Case 1:19-cv-00185 Document 48 Filed on 06/02/20 in TXSD Page 20 of 31

Court found exhaustion unnecessary because TDCJ already had made clear it

would not change its policy. Murphy v. Collier, No. 4:19-cv-1106, Order Staying

Execution, Dkt. No. 57 at 5 n.1 (S.D. Tex. Nov. 7, 2019). On appeal, the Fifth Circuit

rejected TDCJ’s arguments based on exhaustion:

The TDCJ also argues that the district court abused its discretion in

granting the stay because Murphy’s claims are unexhausted and

therefore unlikely to succeed. Again, the Supreme Court implicitly

rejected this argument in March. At every stage of the March 2019

proceedings, the TDCJ argued that Murphy’s claims were

unexhausted. The Supreme Court could not have permitted Murphy’s

case to proceed if it accepted the TDCJ’s exhaustion argument.

Because the Supreme Court has already rejected this argument, we

reject it as well.

Murphy v. Collier, 942 F.3d 704, 709 (5th Cir. 2019).

Defendants attempt to distinguish the circumstances of the Murphy case

because it came before the courts in a stay-of-execution context, rather than a Rule

12(b)(6) motion as in the instant case. Even with that distinction, Defendants refuse

to recognize a common element between the two cases: an important factual

question exists of whether Texas prison officials will take any action through the

general grievance process regarding an inmate’s execution-chamber concerns.

Gutierrez gave notice of his claims through the formal process which halted

when prison officials did not respond to his grievance. Dkt. No. 1-1 at 18. Gutierrez

made even greater efforts to avail himself of the prison grievance procedure than

those in Murphy where the Fifth Circuit and Supreme Court refused to stay an

execution based on similar exhaustion arguments. See Murphy, 942 F.3d at 709;

Dkt. No. 45 at 15. The lack of clarity created by Murphy regarding the exhaustion

doctrine mirrors the lack of clarity on the exhaustion question in this case. A factual

question exists about whether relief—which in this case presumably means a

change to, or accommodation from, TDCJ policy—is actually available through the

prison grievance process to death row inmates requesting the presence of a spiritual

advisor in the execution chamber. Given the unresolved factual issue about the

20 / 31

A28

Case 1:19-cv-00185 Document 48 Filed on 06/02/20 in TXSD Page 21 of 31

applicability of the PLRA exhaustion standard in this case, the Court DENIES

Defendants’ motion to dismiss on those grounds. See 42 U.S.C. § 1997e(a).

Before turning to the specific arguments that Defendants advance in the

motion to dismiss, the Court discusses two fundamental concerns about their

arguments. First, Defendants treat Supreme Court precedent regarding the

application of the First Amendment in the prison context as settled when important

constitutional issues remain unclear. See Dkt. No. 46 at 77. Second, Defendants

treat a recent statement by a Supreme Court Justice as settled law when his

comments do not have the precedential effect necessary to prove that Gutierrez’s

claims fail as a matter of law, as discussed infra. See id. at 83.

B. Debate Over Legal Standard

Gutierrez’s complaint argues that both the Free Exercise and Establishment

Clauses of the First Amendment guarantee that a TDCJ-employed chaplain may

accompany him into the execution chamber. Dkt. No. 45. The parties debate which

standard should govern Gutierrez’s First Amendment Claims. Gutierrez bases his

arguments on Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). Defendants, on the

other hand, argue that this Court instead should consider the claims under Turner

v. Safley, 482 U.S. 78, 89 (1987). Supreme Court and Fifth Circuit law is not clear

on which standard should govern Gutierrez’s First Amendment claims. The Fifth

Circuit has broadly stated that Turner is “the standard for establishing a First

Amendment violation in the prison context.” Sossamon v. Lone Star State of Texas,

560 F.3d 316, 335 (5th Cir. 2009); see also Omran v. Prator, 674 F. App’x 353, 355

(5th Cir. 2016) (citing Turner and stating that “[p]rison policies that impinge on

fundamental constitutional rights are reviewed under the deferential standard that

a prison regulation is valid if it is reasonably related to legitimate penological

interests”); see also Baranowski v. Hart, 486 F.3d 112, 120 (5th Cir. 2007) (“This

court reviews prison policies that impinge on fundamental constitutional rights

under the deferential standard set forth in Turner . . . .”). The Fifth Circuit has

repeatedly applied the Turner framework to free-exercise claims in the prison

setting. See Triplett v. LeBlanc, 642 F. App’x 457, 461 (5th Cir. 2016); Mayfield v.

21 / 31

A29

Case 1:19-cv-00185 Document 48 Filed on 06/02/20 in TXSD Page 22 of 31

Texas Dept. Of Criminal Justice, 529 F.3d 599, 607 (5th Cir. 2008); Freeman v.

Texas Dept. of Criminal Justice, 369 F.3d 854, 860 (5th Cir. 2004); Adkins v.

Kaspar, 393 F.3d 559, 564 (5th Cir. 2004).

The U.S. Supreme Court, however, has not used Turner in every case arising

from the prison system. See Johnson v. California, 543 U.S. 499, 510 (2005) (listing

cases in which the Supreme Court has applied the Turner analysis). In fact, the

Supreme Court has never used Turner to decide an Establishment Clause case

brought by inmates. Fifth Circuit law is also not settled on whether Turner applies

to Establishment Clause claims brought by inmates.5 The question of which First

Amendment test will govern Gutierrez’s claims is not determinative to the matters

presently before the Court. As this case progresses, however, the Court will require

additional briefing from the Parties with relevant law from this and other circuits

related to which constitutional test governs the Establishment Clause claim.

C. Statements by Justice Kavanaugh

The Court notes that Defendants rely extensively on statements Justice

Kavanaugh entered respecting the granting of the stay in the Murphy case. When

the Supreme Court stayed Murphy’s execution on March 28, 2019, Justice

Kavanaugh entered a concurring statement which led to Texas’ change in execution

protocol. Justice Kavanaugh commented on equal-access aspects of Murphy’s claim,

5

Defendants point to a recent case in which a Fifth Circuit panel considered whether to apply

Lemon’s strict scrutiny or Turner to an Establishment Clause case in the prison setting. In Brown v.

Collier, 929 F.3d 218, 228-29 (5th Cir. 2019), Circuit Judge Priscilla Owen authored an opinion that

was mostly joined by Judge Carolyn King. Judge King, however, did not join in the portion of the

opinion endorsing the application of Turner to Establishment Clause cases. While Defendants rely on

Brown to argue that Turner applies to all First Amendment claims, an opinion by one circuit judge is

an insufficient basis to hold that Gutierrez’s First Amendment claims fail as a matter of law. Other

courts have been reluctant to use the Turner test in Establishment Clause cases. See Americans

United for Separation of Church and State v. Prison Fellowship Ministries, Inc., 509 F.3d 406, 426

(8th Cir. 2007) (“This court has consistently analyzed Establishment claims without mentioning the

Turner standard, even when applying that standard to Free Exercise claims in the same case.”);

Kaufman v. McCaughtry, 419 F.3d 678, 684 (7th Cir. 2005) (considering an Establishment Clause

claim under Lemon test); Scott v. Pierce, 2012 WL 12535442, at *3 (S.D. Tex. 2012) (“[T]he Supreme

Court has never held that Turner should be applied to cases raising Establishment Clause issues.”);

but see Rauser v. Horn, 241 F.3d 330, 334 (3d Cir. 2001) (using the Turner standard in claim of

retaliation against an inmate exercising Establishment Clause rights); Maye v. Klee, 915 F.3d 1076,

1085 (6th Cir. 2019) (“This circuit has not yet resolved the question of whether we look to Turner to

determine whether prison officials violated the Establishment Clause . . . .”).

22 / 31

A30

Case 1:19-cv-00185 Document 48 Filed on 06/02/20 in TXSD Page 23 of 31

proposing 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, 139 S. Ct. 1475 (2019) (Kavanaugh, J.,

concurring),

On April 2, 2019, TDCJ followed Justice Kavanaugh’s recommendation and

changed its execution policy. Dkt. No. 1-1 at 8. On May 13, 2019, Justice Alito,

joined by Justices Thomas and Gorsuch, entered 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 that 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, Justice Kavanaugh authored a

statement in 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

23 / 31

A31

Case 1:19-cv-00185 Document 48 Filed on 06/02/20 in TXSD Page 24 of 31

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.).

Defendants argue that “the litigation in Murphy’s case has little, if any,

bearing on Plaintiff’s Chaplain claim,” Dkt. No. 46 at 69 n.32, but then repeatedly

rely on Justice Kavanaugh’s two statements as having established law that binds

this Court. Defendants particularly use Justice Kavanaugh’s statements to argue

that Turner should apply to all Gutierrez’s First Amendment claims and that

Gutierrez has not pleaded a claim upon which relief can be granted. However, a

statement by a Supreme Court Justice does not carry binding precedential effect.

See Ramos v. Louisiana, ___ S. Ct. ___, 2020 WL 1906545, at *7 (2020) (examining

the precedential effect of an opinion by a single Supreme Court Justice and

remarking that “no case has before suggested that a single Justice may overrule

precedent”). Even if Justice Kavanaugh’s statements could be construed as an

indication of how the Supreme Court may rule in the future, this Court’s role at the

pleading stage is not to prognosticate the ultimate decision on an inmate’s claim.

The ultimate question in a Rule 12(b)(6) motion is whether, when viewed in a light

most favorable to the plaintiff, the complaint states a valid claim. See Great Plains

Trust Co. v. Morgan Stanley Dean Witter, 313 F.3d 305, 312 (5th Cir. 2002). This

review does not question the plaintiff’s likelihood of success; instead, it only decides

whether he has pleaded a legally cognizable claim. See United States ex rel. Riley v.

St. Luke’s Episcopal Hosp., 355 F.3d 370, 376 (5th Cir. 2004). Statements by less

24 / 31

A32

Case 1:19-cv-00185 Document 48 Filed on 06/02/20 in TXSD Page 25 of 31

than a majority of the Supreme Court are an insufficient basis to show that, as a

matter of law, Gutierrez has not made a claim on which relief can be granted.

Having addressed those two fundamental concerns about Defendants’

arguments, the Court turns to the question of whether Gutierrez has sufficiently

pleaded claims that survive the motion to dismiss.

D. Establishment Clause

Gutierrez argues that the TDCJ policy excluding his chosen spiritual advisor

violates the Establishment Clause. Under the First Amendment, “Congress shall

make no law respecting an establishment of religion.” U.S. Const., amend. I. The

Establishment Clause prohibits the governmental entities from preferring one

religion over others, but also prevents the creation of laws that demonstrate

hostility toward religion. See American Legion v. American Humanist Association,

___ U.S. ___, 139 S. Ct. 2067, 2074 (2019); Rosenberger v. Rector and Visitors of

Univ. of Va., 515 U.S. 819, 845-46 (1995); Larson v. Valente, 456 U.S. 228, 246

(1982). Prior to April 2, 2019, Gutierrez would have been entitled to the presence of

a chaplain in his final moments. Gutierrez claims that the revocation of that policy

was an act hostile to religion. Dkt. No. 45 at 35.

Defendants primarily rely on the Turner standard and argue that “the

deferential standard applied by the Supreme Court and Fifth Circuit to

Establishment Clause claims leads to the conclusion that TDCJ’s protocol is plainly

permissible.” Dkt. No. 46 at 71. Applying the Turner factors, Defendants argue that:

(1) the new protocol is rationally connected to its security interests; (2) excluding a

spiritual advisor from the execution chamber does not prevent an inmate from

exercising his religion the during his execution; (3) allowing Gutierrez to have

TDCJ approved chaplains would require the same right to be extended to inmates of

all denominations and some inmates would request a spiritual advisor who was not

a TDCJ approved chaplain;6 and (4) no ready alternatives exist to allowing an

6

Defendants premise these arguments on Turner which instructed that “[w]hen

accommodation of an asserted right will have a significant ‘ripple effect’ on fellow inmates or on

prison staff, courts should be particularly deferential to the informed discretion of corrections

officials.” Turner, 482 U.S. at 90.

25 / 31

A33

Case 1:19-cv-00185 Document 48 Filed on 06/02/20 in TXSD Page 26 of 31

outsider into the execution chamber. Dkt. No. 46 at 71-72. Accordingly, Defendants

argue that “there are no ready alternatives that would alleviate the security risks of

allowing such an outsider into the execution chamber during an execution.” Dkt.

No. 46 at 72.

Gutierrez primarily bases his response on the Lemon test. Gutierrez argues

that the new TDCJ policy is not neutral between religion and non-religion and is

inherently suspect. Gutierrez does not dispute the fact that TDCJ has a compelling

interest in security throughout an execution. Neither does the State dispute that

Texas has long allowed inmates to have TDCJ-employed chaplains in the execution

chamber. According to Gutierrez, the removal of that accommodation signals

hostility toward religion.7

Alternatively addressing Defendants’ arguments under the Turner standard,

Gutierrez contends that the Supreme Court “has ‘found it important to inquire

whether prison regulations restricting inmates’ First Amendment rights operated in

a neutral fashion, without regard to the content of the expression.’” Dkt. No. 47 at

68 (quoting Turner, 482 U.S. at 90 (emphasis added)). Gutierrez contends that the

new TDCJ policy restricts his First Amendment rights in a non-neutral fashion that

is hostile toward religion. Dkt. No. 47 at 78.

Further, Gutierrez argues that Defendants’ arguments about security

concerns are speculative. Defendants do not suggest that the relief Gutierrez

requests—the presence of a TDCJ chaplain as has been allowed many times

before—will pose any security threat in his own execution. The concerns Defendants

raise are those that may occur in other executions, such as that of Patrick Henry

7

Parties debate TDCJ’s intent in the change of its policy. Defendants premise their arguments

on the assumption that “TDCJ’s revision of its protocol regarding the presence of chaplains during

an execution was in response to the Supreme Court’s action in Murphy.” Dkt. No. 46 at 72. Given the

timing of the policy change and the fact that there was no official statement or justification by TDCJ

that would explain why it began disallowing the presence of TDCJ-employed clergy, it could be

reasonable to infer that Defendants acted in response to Justice Kavanaugh’s statement in Murphy.

See McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844, 861 (2005)

(emphasizing “the intuitive importance of official purpose to the realization of Establishment Clause

values”). At this point, it appears that TDCJ acted with an “obvious secular motivation of

maintaining a safe and orderly execution process,” but at the pleadings stage that speculation is

insufficient to dismiss Gutierrez’s complaint. Dkt. No. 46 at 72.

26 / 31

A34

Case 1:19-cv-00185 Document 48 Filed on 06/02/20 in TXSD Page 27 of 31

Murphy who requested the attendance of a spiritual advisor unaffiliated with the

prison system. At the pleadings stage, the Court lacks information about how the

requested relief would impact the way Texas conducts the execution of other

inmates. This lawsuit has still not developed factual information relating to how

many other faith groups are represented on death row, what security risks exist for

allowing non-TDCJ spiritual advisors into the death chamber, and what rigor must

attend training clergy for the execution process. Assuming that granting relief to

Gutierrez would force Defendants to allow access to chaplains from all faith groups

represented on death row, the pleadings do not give insight into what security

concerns exists, how pervasive those risks may be, and why TDCJ cannot easily

accommodate any rights while still maintaining security. Defendants’ arguments

about secondary ripples from the Gutierrez’s rights are too speculative and

undeveloped to dismiss this case on the pleadings.

Simply, Defendants’ cursory arguments about security concerns do not show

that Gutierrez has failed to plead a claim on which relief can be granted. The Court

DENIES Defendants’ motion to dismiss Gutierrez’ Establishment Clause claim. See

Twombly, 550 U.S. at 555.

E. Free Exercise Clause

Unlike the Establishment Clause claim, Fifth Circuit law shows that the

Turner framework governs Gutierrez’s Free Exercise Claim. To state a free exercise

claim under the First Amendment, a plaintiff must allege sufficient facts showing a

sincere religious belief that the official action or regulation substantially burdens.

Hernandez v. Comm’r, 490 U.S. 680, 699 (1989). A prison policy that substantially

burdens an inmate’s ability to practice his religion withstands a First Amendment

challenge when it is “reasonably related to legitimate penological interests.” O’Lone

v. Estate of Shabazz, 482 U.S. 342, 349 (1987) (quoting Turner, 482 U.S. at 89). The

Parties rely on the same discussion relating to Gutierrez’s Establishment Clause

claim to address his Free Exercise claim. The Court concludes that Gutierrez has

sufficiently pleaded his claim that the current TDCJ policy precludes his sincere

desire to have a spiritual advisor present during his execution. The Court DENIES

27 / 31

A35

Case 1:19-cv-00185 Document 48 Filed on 06/02/20 in TXSD Page 28 of 31

the motion to dismiss the Free Exercise claim for the same reasons as the

Establishment Clause claim.

F. RLUIPA

Gutierrez argues that the absence of a chaplain in the execution chamber

violates his rights under the Religious Land Use and Institutionalized Persons Act

of 2000 (RLUIPA or Act), 114 Stat. 804, 42 U.S.C. § 2000cc-1(a)(1)-(2).

As an initial matter, Defendants argue that Gutierrez has not “assert[ed]

that the physical presence of a chaplain in the execution chamber is required for

him to exercise his religion or to ‘guide[]’ [him] at the time of the execution.” Dkt.

No. 46 at 64 (emphasis added). Defendants have not identified any law sanctioning

the dismissal of a RLUIPA claim based on religious devotion preferred by an inmate

rather than compelled by his religion.8 In his amended complaint, Gutierrez states

he believes that “having a Christian chaplain present in the chamber would help to

ensure his path to the afterlife.” Dkt. No. 45 at 14. Gutierrez’s statement that

prohibiting him “from being guided at the time of death by a Christian chaplain is

an explicit and substantial burden on religious exercise” provides a sufficient basis

for his RLUIPA claim. Dkt. No 45 at 35-36.

Defendants also dispute the sincerity of Gutierrez’s belief insofar as they

argue that he “provides no support for his conclusory assertion that the presence of

a TDCJ chaplain in the witness room—rather than the execution chamber and

during visitation on the day of the execution—is a substantial burden on his

exercise of his religion.” Dkt. No. 46 at 64. Initially, “it falls to the plaintiff to

demonstrate that the government practice complained of imposes a ‘substantial

burden’ on his religious exercise.” Adkins v. Kaspar, 393 F.3d 559, 567 (5th Cir.

2004) (citing 42 U.S.C. § 2000cc-2); see also Holt v. Hobbs, 574 U.S. 352, 360 (2015).

“[W]hether the government action or regulation in question imposes a substantial

burden on an adherent’s religious exercise” requires “a case-by-case, fact-specific

8

The Supreme Court has “not addressed whether . . . there is a difference between a State’s

interference with a religious practice that is compelled and a religious practice that is merely

preferred.” Murphy, 139 S. Ct. at 1484 (Alito, J., dissenting from grant of application for stay).

28 / 31

A36

Case 1:19-cv-00185 Document 48 Filed on 06/02/20 in TXSD Page 29 of 31

inquiry.” Adkins, 393 F.3d at 571. Defendants argue that Gutierrez “fails to

demonstrate that TDCJ’s policy would truly force him to ‘substantially modify his

religious behavior’” by having his spiritual advisor in the viewing room, rather than

the execution chamber. Dkt. No. 46 at 64 (quoting Adkins, 393 F.3d at 570). At the

pleadings stage, however, Gutierrez is not required to establish that he is entitled to

relief. His burden is only to plead sufficient facts to state a claim for relief that is

plausible on its face. See Twombly, 550 U.S. at 570. Gutierrez has made that

showing.

Defendants further argue that they have a valid security interest in

preventing clergy from being present in the execution chamber. To reach this

conclusion, Defendants do not argue that their previous policy that allowed TDCJ

clergy to be present created a security risk, nor could they given its long history.

Instead, Defendants argue that “[w]hile Plaintiff frames the relief he requests as

straightforward—because TDCJ has in the past permitted its chaplains to attend

executions—he ignores the inevitable consequences of that relief.” Dkt. No. 46 at 67.

Defendants argue that granting Gutierrez the relief he requests creates the

constitutional concern which in Murphy “the Supreme Court signaled . . . was

impermissible because spiritual advisors not employed by TDCJ could not be

present in the execution chamber.” Dkt. No. 46 at 66. Defendants’ argument,

however, rests on giving Justice Kavanaugh’s statements precedential effect. See

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

statements do not have the precedential effect necessary to prove that a RUILPA

claim fails as a matter of law. See Ramos v. Louisiana, ___ S. Ct. ___, 2020 WL

1906545, at *7 (2020)

Throughout the motion to dismiss, Defendants express concerns about the

security problems that may result in the execution of other inmates if the Court

grants Gutierrez the relief he requests. Security is a paramount consideration in the

assessment of an RLUIPA claim. Defendants correctly argue that “it is indisputable

that TDCJ’s penological interest in security is a compelling interest.” Dkt. No. 46 at

65. However, RLUIPA does not require “unquestioning deference” to prison

29 / 31

A37

Case 1:19-cv-00185 Document 48 Filed on 06/02/20 in TXSD Page 30 of 31

administrators. Holt, 574 U.S. at 864. A prison must “prove that denying the

exemption is the least restrictive means of furthering a compelling governmental

interest.” Id. At this stage of litigation, the Court has no specific facts before it

concerning future security concerns possibly caused by future executions.

Conclusion Regarding Execution-Chamber Claims

IX.

In Murphy, three dissenting Supreme Court Justices commented that the

issues raised by similar claims “are not simple, and they require a careful

consideration of the legitimate interests of both prisoners and prisons.” Murphy,

139 S. Ct. at 1485 (Alito, J., dissenting from grant of application for stay).

Defendants’ motion to dismiss may raise issues needing resolution as the case

progresses, but those issues do not decide the matter immediately before the Court,

which is whether Gutierrez pleaded a valid legal claim that survives a motion to

dismiss. See Fed. R. Civ. P. 12(b); Twombly, 550 U.S. at 555. The Court DENIES

Defendants’ motion to dismiss Gutierrez’s execution-chamber claims.

X.

Conclusion

For the foregoing reasons and after examining the briefs, pleading and relevant

law the Court GRANTS IN PART and DENIES IN PART Defendants Motion to

Dismiss, Dkt. No. 46. The Court hereby:

GRANTS Defendants’ motion to dismiss for lack of subject matter

jurisdiction all claims which seek relief or relitigation of the CCA’s

denial of DNA testing as barred by the Rooker-Feldman doctrine.

GRANTS

Defendants’

motion

to

dismiss

Gutierrez’s

Eighth

Amendment Claims for failure to state a claim upon which relief can

be granted in a § 1983 action.

GRANTS Defendants’ motion to dismiss Gutierrez’s access to the

courts claim for failure to state a claim upon which relief can be

granted.

DENIES Defendants’ motion to dismiss for lack of subject matter

jurisdiction Gutierrez’s claims which challenge the constitutionality of

30 / 31

A38

Case 1:19-cv-00185 Document 48 Filed on 06/02/20 in TXSD Page 31 of 31

Texas’ DNA testing statute on its face and as authoritatively construed

by the CCA.

DENIES Defendants’ motion to dismiss due to Eleventh Amendment

immunity.

DENIES Defendants’ motion to dismiss Gutierrez’s constitutional

challenge to the Texas DNA testing statute for failure to state a claim.

DENIES Defendants’ motion to dismiss due to the statute of

limitations.

DENIES Defendants’ motion to dismiss due to issue preclusion.

DENIES Defendants’ motion to dismiss Gutierrez’s Texas DNA

statute challenge on the merits without additional briefing.

DENIES Defendants’ motion to dismiss Gutierrez’s execution-chamber

claims for failure to state a claim.

SIGNED this 2nd day of June, 2020.

___________________________________

Hilda Tagle

Senior United States District Judge

31 / 31

A39

Case 1:19-cv-00185 Document 57 Filed on 06/09/20 in TXSD Page 1 of 3

United States District Court

Southern District of Texas

ENTERED

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

RUBEN GUTIERREZ,

§

§

§

§

§

§

§

§

Plaintiff,

VS.

LUIS V SAENZ, et al,

Defendants.

June 09, 2020

David J. Bradley, Clerk

CIVIL NO. 1:19-CV-185

ORDER

The Court is in receipt of Plaintiff Ruben Gutierrez’s (“Gutierrez”) motion for

stay of execution, Dkt. No. 47, 56. The Court is also in receipt of Defendants’

opposition to the stay, Dkt. No. 55. For the foregoing reasons the Court GRANTS

Plaintiff’s motion, Dkt. No. 47.

This action arises under 42 U.S.C. § 1983 and Gutierrez challenges the

constitutionality of Texas’ DNA testing statute. Dkt. No. 45 at 3; Tex. Crim. Proc.

Code art. 64. Gutierrez claims the statute violates procedural due process because it

denies a movant the ability to test evidence that would demonstrate he is innocent

of the death penalty, and it is unequally and unfairly applied to someone who is

convicted under the law of parties. He also claims its different outcome standard is

overbroad. Dkt. No. 45 at 25-26. Gutierrez seeks a declaratory judgment holding

Chapter 64 unconstitutional. Id. at 37.

Gutierrez also claims he will be executed under conditions that violate the

First

Amendment’s

Free

Exercise

and

Establishment

Clauses

and

that

substantially burden the exercise of his religious beliefs protected by the Religions

Land Use and Institutionalized Persons Act (“RLUIPA”) of 2000, 42 U.S.C. § 2000cc

et seq. Id. at 15.

Gutierrez requested a Texas Department of Criminal Justice (“TDCJ”)

employed chaplain to accompany him during his final moments in the execution

1/3

A40

Case 1:19-cv-00185 Document 57 Filed on 06/09/20 in TXSD Page 2 of 3

chamber. His request was denied based on the TDCJ execution procedure adopted

on April 2, 2019, which prohibits all religious or spiritual advisors from entering the

execution chamber. That TDCJ policy now states: “TDCJ Chaplains and

Ministers/Spiritual Advisors designated by the offender may observe the execution

only from the witness rooms.” Facing an execution date, Gutierrez filed this lawsuit

requesting “a reasonable accommodation to have a Christian chaplain in the

execution chamber when he is executed[.]” Dkt. No. 45 at 3. Gutierrez claims relief

is necessary to ensure he is executed in way that does not unfairly burden the

exercise of his religious beliefs. Id. at 4.

On June 2, 2020, after extensive analysis, this Court granted in part and

denied in part Defendants’ motion to dismiss Gutierrez’s complaint for failure to

state a claim and for lack of jurisdiction. Dkt. No. 48 at 30-31 (granting dismissal on

three grounds and denying dismissal all other grounds). The Court reserved the

question of whether to stay Gutierrez’s June 16, 2020 execution for determination

in a separate order. Dkt. 48 at 1. The briefing before the Court is adequate to decide

whether Gutierrez is entitled to a stay of execution.

When considering a motion to stay a court should determine

“(1) whether the movant has made a showing of likelihood of success on the

merits, (2) whether the movant has made a showing of irreparable injury if

the stay is not granted, (3) whether the granting of the stay would

substantially harm the other parties, and (4) whether the granting of the stay

would serve the public interest.”

In re Campbell, 750 F.3d 523, 534 (5th Cir. 2014) (citing Nken v. Holder, 556 U.S.

418, 433-34 (2009)).

A person condemned to death has no automatic entitlement to a stay of

execution. McFarland v. Scott, 512 U.S. 849, 858 (1994). A stay of execution is an

equitable remedy, not available as a matter of right. Wood v. Collier, 836 F.3d 534,

538 (5th Cir. 2016). A stay is an exercise of judicial discretion, dependent on the

circumstances of the particular case. Nken, 556 U.S. at 433. In a capital case, the

movant must show a substantial case on the merits and show the balance of

equities weighs heavily in favor of granting the stay. Celestine v. Butler, 823 F.2d

2/3

A41

Case 1:19-cv-00185 Document 57 Filed on 06/09/20 in TXSD Page 3 of 3

74, 77 (5th Cir. 1987). The court must consider a state’s strong interest in

proceeding with judgement and attempts at unnecessary delay or manipulation in

bringing a claim. Nelson v. Campbell, 541 U.S. 637, 649 (2004).

The Court’s analysis in this case demonstrates there are outstanding,

substantial, and novel legal and factual questions raised by Gutierrez that have

survived a motion to dismiss. Dkt. No. 45. The Court concludes that Gutierrez has

made a showing of likelihood of success on the merits of at least one of his DNA or

execution-chamber claims. See Dkt. No. 45. While the public has a strong interest

in the execution of a valid criminal judgment, the public interest will also be served

by fair adjudication of the important issues raised by Gutierrez’s lawsuit. Weighing

those factors, as well as the potential irreparable injury Gutierrez will suffer if his

execution were to go forward, against any harm the state may experience through

delay in executing his death sentence, the Court concludes that a stay is warranted

in this case. See Nken, 556 U.S. at 433-34; In re Campbell, 750 F.3d at 534. A stay

will allow this Court to resolve the serious factual and legal issues that remain

pending. See Murphy v. Collier, 942 F.3d 704, 709 (5th Cir. 2019) (staying the

execution of an inmate raising a similar execution-chamber claims “to explore and

resolve serious factual concerns about the balance between . . . religious rights and

the prison’s valid concerns for security”).

The Court ORDERS that Gutierrez’s motion, Dkt. No. 47, for stay of

execution is GRANTED, and his execution scheduled for June 16, 2020 after 6:00

p.m. is STAYED pending resolution of this § 1983 action.

SIGNED this 9th day of June, 2020.

___________________________________

Hilda Tagle

Senior United States District Judge

3/3

A42

§ 2000cc. Protection of land use as religious exercise, 42 USCA § 2000cc

KeyCite Yellow Flag - Negative Treatment

Unconstitutional or PreemptedLimited on Constitutional Grounds by Lighthouse Institute for Evangelism, Inc. v. City of Long Branch, 3rd Cir.(N.J.), Nov.

27, 2007

United States Code Annotated

Title 42. The Public Health and Welfare

Chapter 21C. Protection of Religious Exercise in Land Use and by Institutionalized Persons

42 U.S.C.A. § 2000cc

§ 2000cc. Protection of land use as religious exercise

Effective: September 22, 2000

Currentness

(a) Substantial burdens

(1) General rule

No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious

exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the

burden on that person, assembly, or institution-(A) is in furtherance of a compelling governmental interest; and

(B) is the least restrictive means of furthering that compelling governmental interest.

(2) Scope of application

This subsection applies in any case in which-(A) the substantial burden is imposed in a program or activity that receives Federal financial assistance, even if the burden

results from a rule of general applicability;

(B) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations,

among the several States, or with Indian tribes, even if the burden results from a rule of general applicability; or

(C) the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations,

under which a government makes, or has in place formal or informal procedures or practices that permit the government

to make, individualized assessments of the proposed uses for the property involved.

(b) Discrimination and exclusion

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

A43 1

§ 2000cc. Protection of land use as religious exercise, 42 USCA § 2000cc

(1) Equal terms

No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution

on less than equal terms with a nonreligious assembly or institution.

(2) Nondiscrimination

No government shall impose or implement a land use regulation that discriminates against any assembly or institution on

the basis of religion or religious denomination.

(3) Exclusions and limits

No government shall impose or implement a land use regulation that-(A) totally excludes religious assemblies from a jurisdiction; or

(B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.

CREDIT(S)

(Pub.L. 106-274, § 2, Sept. 22, 2000, 114 Stat. 803.)

Notes of Decisions (244)

42 U.S.C.A. § 2000cc, 42 USCA § 2000cc

Current through P.L. 116-142.

End of Document

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

A44 2

§ 2000cc-1. Protection of religious exercise of institutionalized..., 42 USCA § 2000cc-1

KeyCite Yellow Flag - Negative Treatment

Unconstitutional or PreemptedLimited on Constitutional Grounds by Lovelace v. Lee, 4th Cir.(Va.), Dec. 29, 2006

United States Code Annotated

Title 42. The Public Health and Welfare

Chapter 21C. Protection of Religious Exercise in Land Use and by Institutionalized Persons

42 U.S.C.A. § 2000cc-1

§ 2000cc-1. Protection of religious exercise of institutionalized persons

Effective: September 22, 2000

Currentness

(a) General rule

No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution,

as defined in section 1997 of this title, even if the burden results from a rule of general applicability, unless the government

demonstrates that imposition of the burden on that person-(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.

(b) Scope of application

This section applies in any case in which-(1) the substantial burden is imposed in a program or activity that receives Federal financial assistance; or

(2) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among

the several States, or with Indian tribes.

CREDIT(S)

(Pub.L. 106-274, § 3, Sept. 22, 2000, 114 Stat. 804.)

Notes of Decisions (375)

42 U.S.C.A. § 2000cc-1, 42 USCA § 2000cc-1

Current through P.L. 116-142.

End of Document

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

A45 1

§ 2000cc-2. Judicial relief, 42 USCA § 2000cc-2

KeyCite Yellow Flag - Negative Treatment

Unconstitutional or PreemptedLimited on Constitutional Grounds by Lovelace v. Lee, 4th Cir.(Va.), Dec. 29, 2006

United States Code Annotated

Title 42. The Public Health and Welfare

Chapter 21C. Protection of Religious Exercise in Land Use and by Institutionalized Persons

42 U.S.C.A. § 2000cc-2

§ 2000cc-2. Judicial relief

Effective: September 22, 2000

Currentness

(a) Cause of action

A person may assert a violation of this chapter as a claim or defense in a judicial proceeding and obtain appropriate relief against

a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under

article III of the Constitution.

(b) Burden of persuasion

If a plaintiff produces prima facie evidence to support a claim alleging a violation of the Free Exercise Clause or a violation

of section 2000cc of this title, the government shall bear the burden of persuasion on any element of the claim, except that

the plaintiff shall bear the burden of persuasion on whether the law (including a regulation) or government practice that is

challenged by the claim substantially burdens the plaintiff's exercise of religion.

(c) Full faith and credit

Adjudication of a claim of a violation of section 2000cc of this title in a non-Federal forum shall not be entitled to full faith and

credit in a Federal court unless the claimant had a full and fair adjudication of that claim in the non-Federal forum.

(d) Omitted

(e) Prisoners

Nothing in this chapter shall be construed to amend or repeal the Prison Litigation Reform Act of 1995 (including provisions

of law amended by that Act).

(f) Authority of United States to enforce this chapter

The United States may bring an action for injunctive or declaratory relief to enforce compliance with this chapter. Nothing in

this subsection shall be construed to deny, impair, or otherwise affect any right or authority of the Attorney General, the United

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

A46 1

§ 2000cc-2. Judicial relief, 42 USCA § 2000cc-2

States, or any agency, officer, or employee of the United States, acting under any law other than this subsection, to institute

or intervene in any proceeding.

(g) Limitation

If the only jurisdictional basis for applying a provision of this chapter is a claim that a substantial burden by a government on

religious exercise affects, or that removal of that substantial burden would affect, commerce with foreign nations, among the

several States, or with Indian tribes, the provision shall not apply if the government demonstrates that all substantial burdens on,

or the removal of all substantial burdens from, similar religious exercise throughout the Nation would not lead in the aggregate

to a substantial effect on commerce with foreign nations, among the several States, or with Indian tribes.

CREDIT(S)

(Pub.L. 106-274, § 4, Sept. 22, 2000, 114 Stat. 804.)

Notes of Decisions (207)

42 U.S.C.A. § 2000cc-2, 42 USCA § 2000cc-2

Current through P.L. 116-142.

End of Document

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

A47 2

§ 2000cc-3. Rules of construction, 42 USCA § 2000cc-3

KeyCite Yellow Flag - Negative Treatment

Unconstitutional or PreemptedLimited on Constitutional Grounds by Lovelace v. Lee, 4th Cir.(Va.), Dec. 29, 2006

United States Code Annotated

Title 42. The Public Health and Welfare

Chapter 21C. Protection of Religious Exercise in Land Use and by Institutionalized Persons

42 U.S.C.A. § 2000cc-3

§ 2000cc-3. Rules of construction

Effective: September 22, 2000

Currentness

(a) Religious belief unaffected

Nothing in this chapter shall be construed to authorize any government to burden any religious belief.

(b) Religious exercise not regulated

Nothing in this chapter shall create any basis for restricting or burdening religious exercise or for claims against a religious

organization including any religiously affiliated school or university, not acting under color of law.

(c) Claims to funding unaffected

Nothing in this chapter shall create or preclude a right of any religious organization to receive funding or other assistance from a

government, or of any person to receive government funding for a religious activity, but this chapter may require a government

to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.

(d) Other authority to impose conditions on funding unaffected

Nothing in this chapter shall-(1) authorize a government to regulate or affect, directly or indirectly, the activities or policies of a person other than a

government as a condition of receiving funding or other assistance; or

(2) restrict any authority that may exist under other law to so regulate or affect, except as provided in this chapter.

(e) Governmental discretion in alleviating burdens on religious exercise

A government may avoid the preemptive force of any provision of this chapter by changing the policy or practice that results in

a substantial burden on religious exercise, by retaining the policy or practice and exempting the substantially burdened religious

exercise, by providing exemptions from the policy or practice for applications that substantially burden religious exercise, or

by any other means that eliminates the substantial burden.

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

A48 1

§ 2000cc-3. Rules of construction, 42 USCA § 2000cc-3

(f) Effect on other law

With respect to a claim brought under this chapter, proof that a substantial burden on a person's religious exercise affects, or

removal of that burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, shall not

establish any inference or presumption that Congress intends that any religious exercise is, or is not, subject to any law other

than this chapter.

(g) Broad construction

This chapter shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the

terms of this chapter and the Constitution.

(h) No preemption or repeal

Nothing in this chapter shall be construed to preempt State law, or repeal Federal law, that is equally as protective of religious

exercise as, or more protective of religious exercise than, this chapter.

(i) Severability

If any provision of this chapter or of an amendment made by this chapter, or any application of such provision to any person

or circumstance, is held to be unconstitutional, the remainder of this chapter, the amendments made by this chapter, and the

application of the provision to any other person or circumstance shall not be affected.

CREDIT(S)

(Pub.L. 106-274, § 5, Sept. 22, 2000, 114 Stat. 805.)

Notes of Decisions (1)

42 U.S.C.A. § 2000cc-3, 42 USCA § 2000cc-3

Current through P.L. 116-142.

End of Document

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

A49 2

§ 2000cc-4. Establishment Clause unaffected, 42 USCA § 2000cc-4

KeyCite Yellow Flag - Negative Treatment

Unconstitutional or PreemptedLimited on Constitutional Grounds by Lovelace v. Lee, 4th Cir.(Va.), Dec. 29, 2006

United States Code Annotated

Title 42. The Public Health and Welfare

Chapter 21C. Protection of Religious Exercise in Land Use and by Institutionalized Persons

42 U.S.C.A. § 2000cc-4

§ 2000cc-4. Establishment Clause unaffected

Effective: September 22, 2000

Currentness

Nothing in this chapter shall be construed to affect, interpret, or in any way address that portion of the first amendment to the

Constitution prohibiting laws respecting an establishment of religion (referred to in this section as the “Establishment Clause”).

Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, shall not

constitute a violation of this chapter. In this section, the term “granting”, used with respect to government funding, benefits, or

exemptions, does not include the denial of government funding, benefits, or exemptions.

CREDIT(S)

(Pub.L. 106-274, § 6, Sept. 22, 2000, 114 Stat. 806.)

42 U.S.C.A. § 2000cc-4, 42 USCA § 2000cc-4

Current through P.L. 116-142.

End of Document

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

A50 1

§ 2000cc-5. Definitions, 42 USCA § 2000cc-5

KeyCite Yellow Flag - Negative Treatment

Unconstitutional or PreemptedLimited on Constitutional Grounds by Lovelace v. Lee, 4th Cir.(Va.), Dec. 29, 2006

United States Code Annotated

Title 42. The Public Health and Welfare

Chapter 21C. Protection of Religious Exercise in Land Use and by Institutionalized Persons

42 U.S.C.A. § 2000cc-5

§ 2000cc-5. Definitions

Effective: September 22, 2000

Currentness

In this chapter:

(1) Claimant

The term “claimant” means a person raising a claim or defense under this chapter.

(2) Demonstrates

The term “demonstrates” means meets the burdens of going forward with the evidence and of persuasion.

(3) Free Exercise Clause

The term “Free Exercise Clause ” means that portion of the first amendment to the Constitution that proscribes laws

prohibiting the free exercise of religion.

(4) Government

The term “government”-(A) means-(i) a State, county, municipality, or other governmental entity created under the authority of a State;

(ii) any branch, department, agency, instrumentality, or official of an entity listed in clause (i); and

(iii) any other person acting under color of State law; and

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

A51 1

§ 2000cc-5. Definitions, 42 USCA § 2000cc-5

(B) for the purposes of sections 2000cc-2(b) and 2000cc-3 of this title, includes the United States, a branch, department,

agency, instrumentality, or official of the United States, and any other person acting under color of Federal law.

(5) Land use regulation

The term “land use regulation” means a zoning or landmarking law, or the application of such a law, that limits or restricts

a claimant's use or development of land (including a structure affixed to land), if the claimant has an ownership, leasehold,

easement, servitude, or other property interest in the regulated land or a contract or option to acquire such an interest.

(6) Program or activity

The term “program or activity” means all of the operations of any entity as described in paragraph (1) or (2) of section

2000d-4a of this title.

(7) Religious exercise

(A) In general

The term “religious exercise” includes any exercise of religion, whether or not compelled by, or central to, a system of

religious belief.

(B) Rule

The use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious

exercise of the person or entity that uses or intends to use the property for that purpose.

CREDIT(S)

(Pub.L. 106-274, § 8, Sept. 22, 2000, 114 Stat. 806.)

Notes of Decisions (38)

42 U.S.C.A. § 2000cc-5, 42 USCA § 2000cc-5

Current through P.L. 116-142.

End of Document

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

A52 2

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.