Case 4:22-cv-01168 Document 3 Filed on 04/12/22 in TXSD Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

CARL WAYNE BUNTION §

§
Plaintiff, §
§
vs. § Civil No. 4:22-cv-1168
§
BRYAN COLLIER, et al., §
§
Defendants. §

MOTION TO DISMISS PLAINTIFF’S COMPLAINT FILED

PURSUANT TO 28 U.S.C. § 2201 WITHOUT PREJUDICE

For the reasons explained below, Plaintiff Carl Wayne Buntion

respectfully requests this Court enter an order dismissing his

Complaint filed pursuant to 28 U.S.C. § 2201 without prejudice.

As Counsel made clear in the Complaint, they had not been

provided a copy of Defendants’ response to Buntion’s Step 2 Grievance

(and were therefore unaware TDCJ had taken any action concerning it).

ECF No. 1 at para. 28. This morning, Mr. Edward Marshall, the Chief

of the Criminal Appeals Division of the Office of the Attorney General of

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Texas, emailed a copy of Defendants’ response to Buntion’s Step 2

Grievance, which was apparently given to Buntion on April 6. A copy of

that response is attached as Exhibit 1 to this motion.

With respect to whether the spiritual advisor will be allowed to

audibly pray over Buntion in the chamber, Defendants’ response to

Buntion’s grievance indicates the spiritual advisor will be able to

“[p]ray aloud at a reasonable volume when prompted by the Warden.”

See Exhibit 1. The response also made clear that the spiritual advisor

would not be able to pray aloud when Mr. Lumpkin (the Director of

TDCJ’s Correctional Institution Division), Mr. Crowley (the Warden of

the Huntsville Unit), or Mr. Buntion were speaking. See Exhibit 1.

On its own, the Defendants’ response to Buntion’s grievance did

not appear to Counsel to provide Buntion all he requested, and what

Counsel believe he is entitled to under RLUIPA. However, in an email

to Counsel, Mr. Marshall has assured Counsel that “[a]t all other

times in the execution chamber, Buntion’s spiritual advisor will

be permitted to pray aloud at a reasonable volume.” See Exhibit 2

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(Marshall’s April 12 email to Counsel) (emphasis in original).1

With respect to whether the spiritual advisor will be allowed to

touch Buntion in the execution chamber, the response to Buntion’s

grievance indicates the spiritual advisor will be allowed to “[s]tand at

the foot of the gurney and touch [Buntion’s] foot.” See Exhibit 1. By

itself, Counsel do not believe this would be sufficient to satisfy

Buntion’s request and alleviate their concern. However, Mr. Marshall

made clear in his email that “[t]here is no limit on the timing of

that touch,” meaning the spiritual advisor will be allowed to remain in

contact with Buntion for the entire time he is in the execution chamber.

See Exhibit 2 (emphasis in original).

Based on Defendants’ Response (i.e., Exhibit 1) and Mr.

Marshall’s email (i.e., Exhibit 2), Counsel respectfully requests this

Court dismiss Buntion’s Complaint without prejudice to refile should

Defendants’ position change.

Counsel has included Mr. Marshall’s email as an exhibit with Mr.

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Marshall’s consent.
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Respectfully submitted,

/s/ David R. Dow /s/ Jeffrey R. Newberry

__________________________
David R. Dow
Texas Bar No. 06064900
University of Houston Law Center
4170 Martin Luther King Blvd.
Houston, Texas 77204-6060
Tel. (713) 743-2171
Fax (713) 743-2131
Email ddow@central.uh.edu
___________________________
Jeffrey R. Newberry
Texas Bar No. 24060966
University of Houston Law Center
4170 Martin Luther King Blvd.
Houston, Texas 77204-6060
Tel. (713) 743-6843
Fax (713) 743-2131
Email jrnewber@central.uh.edu

Counsel for Carl Buntion, Plaintiff

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Certificate of Service

I certify that on April 12, 2022, I served the foregoing pleading

and attachments on Counsel for Defendants, Cara Hanna.

s/ Jeffrey R. Newberry
____________________
Jeffrey R. Newberry

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From: Edward Marshall Edward.Marshall@oag.texas.gov

Subject: RLUIPA complaint
Date: April 12, 2022 at 10:03 AM
To: jrnewber@central.uh.edu
Cc: Cara Hanna Cara.Hanna@oag.texas.gov

Jeff, your client’s Step 2 grievance was resolved in his favor last week (see a=ached), and he was
provided no?ce. In TDCJ’s response, it was stated that Bun?on’s spiritual advisor may “[p]ray
aloud at a reasonable volume when prompted by the Warden,” and “[p]ray silently at all other
?mes.” TDCJ has clarified to me, and I am now represen?ng to you, that Bun?on’s spiritual
advisor need only be silent when the CID Director or the Warden are speaking to facilitate the
execu?on process and when Bun?on is giving his last statement. At all other *mes in the
execu*on chamber, Bun*on’s spiritual advisor will be permi:ed to pray aloud at a reasonable
volume. Bun?on’s spiritual advisor may sing at a reasonable volume rather than merely speak, if
he so chooses.

With regard to touch, TDCJ’s response to Bun?on’s Step 2 grievance is very clear. There is no limit
on the *ming of that touch.

I apologize that you were not provided with a copy of the Step 2 grievance response sooner. It
was my belief that you were, and that your client would communicate as much to you, but I was
obviously wrong. You now know the limits to be placed on audible prayer and touch prior to and
during Bun?on’s execu?on are minimal, and comport with the explicit sugges?ons in the
Supreme Court’s Ramirez v. Collier opinion. See, e.g., id., --- S.Ct. ---, 2022 WL 867311, *10
(“Prison officials could impose reasonable restric?ons on audible prayer in the execu?on
chamber—such as limi?ng the volume of any prayer so that medical officials can monitor an
inmate's condi?on, requiring silence during cri?cal points in the execu?on process (including
when an execu?on warrant is read or officials must communicate with one another), allowing a
spiritual advisor to speak only with the inmate, and subjec?ng advisors to immediate removal for
failure to comply with any rule.”), *11 (“For example, Texas could allow touch on a part of the
body away from IV lines, such as a prisoner's lower leg.”).

I respecbully request that you amend your RLUIPA complaint to reflect that you are now aware,
more than a week before Bun?on’s execu?on, of these accommoda?ons and “clear rules.” If you
require further clarifica?on, please do not hesitate to ask.


Edward L. Marshall
Chief, Criminal Appeals Division
Office of the A=orney General
P.O. Box 12548
Aus?n, Texas 78711-2548
(512) 936-1400

S2 Grievance
Buntio…08.pdf
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S2 Grievance
Buntio…08.pdf