Petition for Writ of Certiorari — Gregory Thomas, Petitioner v. Tom Corbett, et al.

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gregory Thomas,

.

Petitioner

v.

No. 458 M.D. 2013

Submitted: October 26, 2018

Tom Corbett, et al., Governor of

Pennsylvania, John E. Wetzel,

et al., Secretary of Corrections

Shirley R. Moore Smeal,

Deputy Secretary of Corrections,

His Policy Executive Board Makers

Sued m Their Individual Capacities

and Official Capacities,

Respondents

BEFORE:

honorable Sssrr

honorable elle^eTeIS^6

OPINION NOT REPORTED

memorandum opinion

BY JUDGE BROBSON

FILED: March 22,2019

This is a matter in the Court’s

original jurisdiction. Presently before

the Court for consideration i

is an application for summary relief filed by former

Governor Tom Corbett, Secretary of Corrections John E: Wetzel, and Deputy

Secretary of Corrections Shirley R. Moore Smeal (collectively, DOC) with respect

V.

to a petition for review (Petition) filed by Petitioner Gregory Thomas (Thomas).1

In his Petition, Thomas seeks injunctive and declaratory relief concerning specific

DOC policies that allegedly infringe on constitutional rights arising under the First

Amendment to the United States Constitution2 and violate the Religious Land Use

and Institutionalized Persons Act of 2000 (RLUIPA).3 For the reasons set forth

below, we now grant, in part, and deny, in part, DOC’s motion for summary relief.

This action began on July 26, 2013, when Thomas filed the Petition

with this Court. Thomas raised several claims in the Petition identifying three of

DOC’s policies—namely, its conjugal visits policy, prayer oil policy, and phone

policy—as infringing on his constitutional rights under the First, Eighth, and

Fourteenth Amendments4 and violating the RLUIPA. On August 19, 2013, DOC

filed preliminary objections to the Petition, challenging the legal sufficiency of

Thomas’s claims. On April 29, 2014, this Court overruled, in part, and sustained, in

part, DOC’s preliminary objections. As a result of our decision, four of Thomas’s

claims remained: (1) DOC’s policy concerning conjugal visits violates the RLUIPA;

(2) DOC’s policy concerning prayer oil violates the RLUIPA; (3) DOC’s policy

concerning prayer oil violates Thomas’s constitutional rights under the First

Amendment; and (4) DOC’s policy concerning phone lists violates Thomas’s

constitutional rights under the First Amendment. DOC now requests summary relief

Petitioner titled his initial filing as a complaint, and DOC filed what it referred to as a

motion for summary judgment. Consistent with Chapter 15 of the Pennsylvania Rules of Appellate

Procedure, the Court shall treat the filings as a petition for review and an application for summary

relief, respectively.

2 U.S. Const, amend. I.

3 42 U.S.C §§ 2000cc to 2000cc-5.

4 U.S. Const, amends. I, VIII, XIV.

2

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on all four claims, alleging that there are no material facts in dispute with respect to

each claim.5 DOC also argues that Thomas’s religious claims—i.e., Thomas’s

claims with respect to the conjugal visit and prayer oil policies—are barred under

Pennsylvania’s statute of limitations for personal injury actions.6 Lastly, DOC seeks

to have former Governor Thomas Corbett dismissed from th e case.

We will first address DOC’s request for summary relief on the claims

that DOC’s conjugal visit and prayer oil policies violate the RLUIPA. Under

Pennsylvania Rule of Civil Procedure No. 1035.2, a party may move for summary

relief where there is “ no genuine issue of any material fact as to a necessary element

of the cause of action or defense.” Material facts are considered to be facts that

could have an effect on the outcome of the case. Marcellus Shale Coalition v. Dep

’t

ofEnvtl. Prof, 193 A.3d447, 459 (Pa. Cmwlth. 2018).

. In our 2014 opinion, ruling on DOC’s preliminary objections

, we

engaged in a thorough discussion of the framework and applicability of Section 3 of

the RLUIPA, 42 U.S.C. § 2000cc-l:

42 U.S.C. § 2000cc-l . . . creates statutory protection for

inmates in the exercise of their religion, providing, in

relevant part, that “[n]o government shall impose a

substantial burden on the religious exercise of a person

residing in or confined to an institution ... even if the

This Court may take judicial notice of administrative policies, as we have done with

respect to one of the three policies discussed in this opinion. See Figueroa v Pa Bd ofProb &

Parole, 900 A 2d 949, 950 n.l (Pa. Cmwlth. 2006) (taking judicial no^ce of infonnalff^d on

DOC website). The parties have not, however, submitted the administrative policies at issue into

evidence. This makes it difficult for this Court to be absolutely certain as to the contents of the

policies, especially with respect to the conjugal visit and phone policies.

65 The Court need not consider DOC s argument that it is entitled to summary relief on

Thomas s rehgtous claims due to Thomas's alleged failure to file his action prior to the expiration

^ ^ ^ S“ma°'

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iD faVOT °f °0C “

burden results from a rule of general applicability” unless

the government establishes that the burden on religion

furthers a “compelling governmental interest” through the

“least restrictive means of furthering that compelling

government interest.” 42 U.S.C. § 2000cc-l(a)(l)-(2). In

Cutter v. Wilkinson, 544 U.S. 709 , . . (2005), the United

States Supreme Court, in addressing a facial First

Amendment Establishment Clause[7] challenge to this

provision of RLUIPA, observed that this provision was

“the latest of long-running congressional efforts to accord

religious exercise heightened protection from

government-imposed burdens.” Id. at 714..........The

Supreme Court also noted that governmental

accommodation of religious exercise does not necessarily

constitute an improper governmental establishment of

religion in violation of the First Amendment. Id. at 713-14

.... RLUIPA, as compared to the Establishment Clause,

thereby imposes a greater burden on institutional entities

in the defense of regulations and policies that impose

burdens on an individual’s desire to practice his or her

religion while incarcerated.

Thomas v. Corbett, 90 A.3d 789, 794 (Pa. Cmwlth. 2014) (!Thomas I) (footnote

omitted). The RLUIPA, therefore, provides protection for all exercises of religion,

regardless of whether the exercise is compelled by the religious belief or central to

it. Holt v. Hobbs,

U.S.

.5 ___ 5135 S. Ct. 853, 862 (2015). In order to prevail

on a claim under Section 3 of the RLUIPA, an inmate must first show that “an

institutional policy or regulation has substantially burdened his sincerely held

religious beliefs.” Thomas I, 90 A.3d at 794. Once the inmate makes such a

showing, “the institution must demonstrate that the burden is the least restrictive

means of furthering a compelling governmental interest.” Id. at 794-95. The United

States Supreme Court has stated that this standard is “exceptionally demanding” and

calls for the institution to show that “it lacks other means of achieving its desired

7 U.S. Const, amend. I. Pursuant to the Establishment Clause, “Congress shall make no

law respecting an establishment of religion, or prohibiting the free exercise thereof.”

4

goal without imposing a substantial burden on the exercise of religion by the

objecting party.” Holt.

U.S. at

. Further, the institution’s burden is inmate-

and situation-specific, meaning that courts are required to ‘“scrutinize the asserted

harm of granting specific exemptions to particular religious claimants' and ‘to look

to the marginal interest in enforcing’ the challenged government action in that

particular context”. Id. at 863 (emphasis added) (quoting Burnell v. Hobby Lobby

Stores, Inc., 573 U.S. 682, 727,134 S. Ct. 2751,2779 (2014)).

In Holt, the United States Supreme Court examined whether an

institution violated the RLUIPA where the institution forbade an inmate from

growing a half-inch beard in accordance with his Muslim faith. The policy at issue

prohibited inmates from growing beards unless the inmate had a dermatological

condition. The institution did not question the sincerity of the inmate’s belief, but it

argued that the policy furthered the institution ’s compelling interest in curtailing

transportation of contraband. According to the institution, it feared that inmates

would conceal contraband in their beards. The Supreme Court agreed that the

institution had a compelling interest in curtailing transportation of contraband, but it

did not agree that the interest could be compromised by allowing an inmate to grow

a half-inch beard. The institution already searched all prisoners’ hair and clothing

and could do the same with the inmate. Denying the exemption to the inmate was,

therefore, not the least restrictive means of furthering the institution’s compelling

interest.

Here, DOC first seeks summary relief on Thomas’s claim that DOC’s

policy concerning conjugal visits violates the RLUIPA. DOC appears to focus

the second prong of the RLUIPA and does not mention whether the

on

conjugal visit

policy substantially burdens Thomas’s religious beliefs. Further, we decline to make

5

such a ruling. Assuming, arguendo, that there is a substantial burden on Thomas’s

religious beliefs, we must determine whether DOC has met its burden under the

second prong of the RLUIPA.

In support of its motion, DOC offers allegations of fact contained in its

new matter. DOC asserts that, to the extent that Thomas responded to certain

averments in the new matter with general denials, pursuant to Pennsylvania Rule of

Civil Procedure No. 1029(b),8 those general denials must have the effect of an

admission. The averments at issue are as follows:

48. This [DOC] policy exists because conjugal visits risk

the security of the prison and the health of inmates and

staff.

49. Given the need/desire for privacy to engage in

conjugal visits, the administration has a compelling

interest in prohibiting such visits where at least one of the

participants is a known criminal often of a violent crime.

50. The prohibition also cuts down on the spread of

communicable diseases including, but not limited to, those

that are sexually transmitted.

51. With prison overcrowding there is also limited space

where conjugal visits for the numerous inmates who

would no doubt like them could be accommodated.

52. In this particular case, to permit conjugal visits would

appear to require the [DOC], a criminal justice agency, to

place its imprimatur of approval on a situation that may

well constitute a crime, i. e., bigamy, if [Thomas] indeed is

married to several women simultaneously.

Pennsylvania Rule of Civil Procedure No. 1029(b) provides: “Averments in a pleading

to which a responsive pleading is required are admitted when not denied specifically or by

necessary implication. A general denial or a demand for proof. . . shall have the effect of an

admission. Pa. R.C.P. No. 1029(b). There are exceptions to this general rule; however , none are

applicable in this case.

6

53. The limited non-sexual contact policy reduces the

opportunity to pass contraband to inmates.

67. [Thomas] is not legally married to anyone.

(Respondents’ Answer to Petition for Review and New Matter at 8-9.) In the above

averments, DOC asserts that its conjugal visit policy furthers its interests in health

and safety and the abatement of criminal activity. DOC further asserts that relaxing

restrictions on conjugal visits would lead to the spread of sexually transmitted

infections and increase the*likelihood that inmates would receive contraband items.

In response to these allegations, Thomas merely provided general denials, which

asserted that DOC’s allegations are conclusions of law. (Petitioner’s Response to

Respondents’ New Matter.)9

Pursuant to Rule 1029(b), we accept DOC’s

allegations as undisputed fact. We, therefore, conclude that there are no facts in

dispute as to DOC’s claim that its conjugal visit policy furthers its compelling

interest in ensuring the health and safety of inmates and abating criminal activity.

Our inquiry, however, does not end here. DOC must also show that

there are no genuine issues of material fact concerning its allegation that an outright

ban on conjugal visits is the least restrictive means of furthering DOC’s health and

safety interest and its interest in abating criminal activity. Thomas argues that

an

outright ban is not the least restrictive means because the institution allegedly has

movable homes on its property. On the other hand, DOC contends that the nature of

conjugal visits requires a complete ban instead of a restriction because these visits

require privacy, could spread communicable diseases, create an opportunity to bring

in contraband, and may allow for the commission of crimes. Despite Thomas’s

contentions, we see no dispute concerning any material facts as to the least restrictive

9 Thomas did not include page numbers in this pleading.

7

means prong. DOC has a clear responsibility to

ensure the health and safety of

inmates and to ensure that criminal activity is abated. DOC cannot abate crime and

ensure the health and safety of inmates by permitting conjugal visits, even in a

restricted manner. Any conceivable restriction, due to the inherently private nature

of a conjugal visit, would still result in health and safety concerns. Accordingly

we

will grant summary relief in DOC’s favor with respect to the conjugal visit policy.

DOC also seeks summary relief on Thomas’s claim that DOC’s prayer

oil policy violates the RLUIPA. The prayer oil policy permits prison staff to apply

a small amount of prayer oil to the wrists of inmates of the Muslim faith before

attending “Jumu’ah. „io The policy also provides that these inmates may have the oil

applied to their wrists when the inmates enter Jumu’ah. DOC’s prayer oil policy,

therefore, operates as a limitation on the use of prayer oil and as an outright ban

on

the possession of prayer oil. DOC argues that the policy does not substantially

burden Thomas’s practice of his faith. Further, DOC contends that, even if the policy

substantially burdened Thomas’s religious exercise, the policy is the least restrictive

means of furthering DOC’s interest in ensuring a safe environment. According to

DOC, the prayer oil may be flammable and could be used to mask the scent of drugs.

10 Neither Thomas nor DOC define the term Jumu’ah.

noMi , i T T . ,

ln O’Lone v. Estate ofShabazz, 482

U.S. 342 (1987),

the United States Supreme Court considered a First Amendment challenge to a

prison po icy that restricted an inmate’s rights to attend Jumu’ah. and described Jumu’ah as “the

central religious ceremony of Muslims, ‘comparable to the Saturday service of the Jewish faith

and the Sunday service of the various Christian sects.’” Id. at 360 (Brennan, J„ dissenting)

V',o«rvl95 R SUPP' 928i 930 (DNJ- ,984>’

other grounds. 782

P,2d, 4 6/3d C‘r- 986,)' The Umted States District Court for the District of New Jersey in

Stahozr determined that “Jumu’ah is . . . regarded as the central service of the Muslim religion

and the obligation to attend is commanded by the Qur’an, the central book of the Muslim religion ”

«.(,uo„ng^a2z 595F.Supp.at930.)Thus,whilewedonotmakeafacmalfindi„7

this term, it appears that Jumu’ah refers to a type of mandatory congregational service. regarding

8

Concerning the question of whether the prayer oil policy imposes

i

a

substantial burden on Thomas’s religious beliefs, Thomas claims that the

use of

prayer oil is integral to his religious practice not just when attending Jumu’ah but

when praying by himself. Thomas alleges that he must possess prayer oil because

he prays five times daily, and the prayer oil must be used each time he

prays.

(Petitioner’s Br. at 2, 6, and 11.) Further, he states that the

use of prayer oil for five

daily prayers is “compelled by his understanding of the Prophet Muhammad’s

teachings.” (Petitioner’s Br. at 6.) DOC responds by arguing that according to

Thomas’s Petition, his faith requires the use but not possession of prayer oil. DOC

further argues that because the prayer oil policy permits use of the prayer oil, Thomas

has not suffered a substantial burden to his religious beliefs, We agree with DOC

on this point. Though the prayer oil policy d oes act as an outright ban on possession

of prayer oil, the policy permits inmates to use

the prayer oil at certain religious

ceremonies. Due to the fact that prayer oil is available for his use, Thomas has not

suffered a substantial burden on the exercise of his religion.11

As to whether the prayer oil policy is the least restrictive means of

ensuring the safety of the inmates, DOC’s proffered reason for not allowing the

possession of prayer oil is that such oils are flammable and may be used to mask the

scent of drugs. Thomas disputes that such oils are flammable in his brief. DOC

included these allegations of fact in its new matter. Thomas responded to DOC’s

averments with general denials.

Pursuant to Pennsylvania Rule of Civil

Procedure No. 1029(b), the general denials operate as admissions. Thus, we accept

his relil^bdTe^r T ^ bwden of provingthat the 1W* oil policy substantially burdens

s religious beliefs, therefore, we may end our analysis at this point. Even if Thomas met this

»

n0t SUCTOd ^1116 Se“nd

- * evident from our continued

9

those averments as undisputed fact. There are, therefore, no material facts in dispute

concerning the allegation that the prayer oil policy is the least restrictive means of

furthering DOC’s compelling interest. Accordingly, we will grant summary relief

on the above grounds.

Next, we will address DOC’s request for summary relief on the claim

that DOC’s prayer oil and phone policies violate Thomas’s constitutional rights

under the First Amendment. Where constitutional challenges are concerned, this

Court applies a two-step approach. Bussinger v. Dep ’t of Corr., 29 A.3d 79, 83 (Pa.

Cmwlth. 2011), aff’d, 65 A.3d 289 (Pa. 2013); Brown v. Pa. Dep’t of Corr.,

932 A.2d 316, 318 (Pa. Cmwlth. 2007). The first inquiry focuses on whether the

policy at issue infringes on the inmate’s constitutional rights. Bussinger, 29 A.3d at

83. Where an inmate has a free exercise of religion claim, as part of addressing the

first inquiry we must determine whether the inmate’s beliefs are sincerely held and

religious in nature. Meggett v. Pa. Dep’t of Corr., 892 A.2d 872, 880 (Pa. Cmwlth.

2006). Further, where telephone communication is concerned, this Court has stated

that such communication “triggers constitutional concerns.” Thomas I, 90 A.3d at

798.

If we find infringement, we move on to the second inquiry, which is to

determine whether the policy is reasonably related to legitimate penological

interests. Id.

In order to resolve the second inquiry, this Court considers the

following factors:

(1) whether there is a “valid, rational connection” between

the prison regulation!12! and the legitimate governmental

It appears that case law developing these factors makes no distinction between the

treatment of challenges to prison regulations and challenges to prison policies or administrative

directives. See Smith v. Beard, 26 A.3d 551 (Pa. Cmwlth. 2011) (applying case law from cases

where inmates challenge prison regulations, policies, and administrative directives, without

making distinctions between challenges in each case); see also Brittain v. Beard, 91A A.2d 479

(Pa. 2009) (usmg “regulation” and “policy” interchangeably when applying case law).

10

interest asserted to justify it; (2) whether alternative means

are open to inmates to exercise the asserted right; (3) what

impact an accommodation of the asserted constitutional

right wiH have on guards, inmates, and prison resourcesand, (4) whether there are “ready alternatives” to the rule

that would accommodate prisoners’ rights at de minimus

[sicj cost to penological interests.

Brittain v. Beard, 974 A.2d 479, 486 (Pa. 2009) (emphasis in original). Prison

regulations or policies are considered to be valid ‘“if [they are] reasonably related to

legitimate penological interests,’”

Smith v. Beard, 26 A.3d 551, 557 (Pa.

Cmwlth. 2011) (quoting Turner v. Sqfley, 482 U.S, 78, 89 (1987)). When applying

these factors to determine whether there is a connection between the policy and the

penological interest, we must “accord substantial deference to the professional

judgment of prison administrators, who bear a significant responsibility for defining

the legitimate goals of a corrections system and for determining th e most appropriate

means to accomplish them.” Overton v. Bazzetta, 539 U.S. 126, 132 (2003); accord

Smith, 26 A.3d at 557. In hght of this deferential standard, the burden to p

rove a

valid connection between the policy and the penological interest is not on the

institution. Smith, 26 A.3d at 557. Rather, the iinmate must bear the burden of

proving that no valid connection exists between the policy and a legitimate

penological interest. Id. In Bussinger, this Court listed a number of interests that

our courts have recognized as legitimate penological interests:

(a) maintaining internal security for the protection of

prison employers, prisoners, and visitors; (b) deterring the

use of drugs and alcohol in prisons; (c) preventing future

crime; (d) the rehabilitation of inmates; (e) fair and

appropriate treatment among inmates; (f) curbing

sexually-offensive behavior in the prison; and

(g) controlling/eliminating the flow of contraband into

prisons.

Bussinger, 29 A.3d at 87.

11

Although Thomas does not specify the clause under the First

Amendment that DOC’s prayer oil policy violates, a fair reading of the pleadings

indicates that Thomas s claim is a free exercise of religion claim., DOC’s. argument

focuses on the second prong of the above test; it posits that the prayer oil policy has

a valid connection to the legitimate penological goal of ensuring safety within the

prison. DOC argues that allowing inmates to possess prayer oil within their cells

would cause safety concerns due to the allegedly flammable nature of the oil.

Further, DOC contends that prayer oil, if possessed by inmates, could be used to

cover smells of contraband, Thomas argues that the policy is not connected to a

legitimate penological interest because he alleges that prayer oil is not flammable

and cannot, therefore, undermine the safety of the prison. As we discussed earlier

in this opinion, DOC included these averments in its new matter, to which Thomas

responded in general denials.

Pursuant to Pennsylvania Rule of Procedure

No. 1029(b), Thomas’s general denials operate as admissions. Accordingly, we will

grant DOC summary relief on the claim that DOC’s prayer oil policy violates

Thomas’s constitutional rights under the First Amendment.

DOC further seeks summary relief on Thomas’s claim that DOC’s

\

phone policy13 violates his constitutional rights under the First Amendment. Thomas

13 We take judicial notice of DOC policy DC-ADM 818 as set forth on DOC’s official

website at:

https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/818%20Automated%20lnm

ate%20Telephone%20System.pdf (last visited March 18,2019).

See Figueroa, 900 A.2d at 950 n.l (taking judicial notice of information found on DOC’s website).

The policy, however, appears to be a compilation of portions of documents, including policy

statements, policies, and a bulletin, with varying effective dates spanning from 2012 to 2015, put

together to form

DC-ADM 818. Although it appears that DOC issued DC-ADM on April 18,

...

2012, a bulletin indicates that DOC subsequently amended Section 2-01 of DC-ADM 818, as

originally issued on February 12, 2014. The version of Section 2-01 that is included in the

12

V*

contends that DOC’s phone policy, which purportedly does not allow a telephone

number to appear on more than one inmate’s phone list, violates his free speech

rights under the First Amendment. DOC does not challenge Thomas’s assertion that

the phone policy infringes on Thomas s free speech rights; DOC does, however,

argue that the policy has a valid connection to the legitimate penological mterest

i

of

discouraging criminal activities which could otherwise be fostered by allowing

inmates to contact mutual friends of other inmates. Thomas argues that there is no

valid connection between DOC’s phone policy and any legitimate penological

interest. Specifically, Thomas posits:

The telephone system is the most expensive, it has every

high tech feature necessary [to] not be a legitimate security

concern to the point to disallow inmates from having the

same phone number on the list. The intention behind this

practice is not in the best interest of family, society,

rehabilitation initiatives re-entry back into society. Its

over-reachimg [sic].

(Petitioner’s Brief in Opposition to Respondents’ Preliminary Objections at 10.)

Thomas also alleges that DOC monitors inmates’ phone calls, decreasing the

possibility of any security risks posed by inmates contacting mutual friends. {Id.

at 20.) At this stage of the proceedings, DOC has failed to establish that there iis no

dispute concerning any material fact on this claim. Accordingly, we will deny

compilation

ri

,,. _ . contains a notation

. that it was issued on February 12, 2014—which is after Thomas

i ea rns Petition. The Court is unable to ascertain what version of DC-ADM 804 was in affect at

the time Thomas filed his Petition. Furthermore, the bulletin appears to delete subsection B.6 of

Section 2 of DC-ADM 818—i.e., the language at issue with respect to DOC’s phone policy It is

unclear from our review of DC-ADM 818 whether DOC included the language that appears to be

at issue (as set forth m Section 2, subsection B.6) in DC-ADM 818 as issued on April 18 2012

whether DOC added it at a later date (possibly on February 12, 2014), and/or whether DOC

subsequently deleted this language, thereby possibly rendering this claim moot. Thus the Com

has concerns that material issues of fact may exist as to the substance of DOC’s phone policy

13

summary relief on the claim that DOC’s phone policy violates Thomas’s

constitutional rights under the First Amendment.

DOC also urges this Court to dismiss former Governor Corbett from

this lawsuit on the grounds that Thomas has brought suit against Governor Corbett

in violation of 42 U.S.C. § 1983. In order to bring a claim under Section 1983, the

plaintiff must allege a constitutional violation and show that the violation was

“committed by a person acting under the color of state law.” Pa. Workers ’ Comp.

Judges Prof lAss ’n v. Exec. Bd. of Cmwlth., 39 A.3d 486, 493 (Pa. Cmwlth. 2012),

ajfd, 66 A.3d 765 (Pa. 2013). The plaintiff must, therefore, allege that the individual

had personal involvement in the alleged violations. Watkins v. Pa. Dep’t ofCorr.,

196 A.3d 272, 275 (Pa. Cmwlth. 2018). We agree that Thomas does not allege that

Governor Corbett was personally involved in any of the alleged wrongs done to him.

Such a claim cannot, therefore, be brought against Governor Corbett.

Accordingly, we will grant DOC’s motion for summary relief with

respect to Thomas’s claims that DOC’s conjugal visit and prayer oil policies violate

the RLUIPA and that DOC’s prayer oil policy violates his constitutional rights under

the First Amendment. We will dismiss Governor Thomas Corbett as a named

defendant.

We, however, will deny DOC’s motion for summary relief as to

Thomas’s claim that DOC’s phone policy violates his constitutional rights under the

First Amendment.

i*''1

______

P. KEVIN BROBSON, Judge

14

"

" ■ '■ f,

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gregory Thomas,

Petitioner

v-

No. 458 M.D. 2013

Tom Corbett, et al., Governor of

Pennsylvania, John E. Wetzel,

et al, Secretary of Corrections,

Shirley R. Moore Smeal,

Deputy Secretary of Corrections,

His Policy Executive Board Makers

Sued in Their Individual Capacities

and Official Capacities,

Respondents

ORDER

AND NOW, this 22nd day of March, 2019, it is hereby ordered that

Respondents’ application for summary relief is GRANTED, in part, and DENIED,

in part, as follows:

1. Summary relief is GRANTED in favor of Respondents on the claim

that the Department of Corrections’ (DOC) conjugal visit and prayer

oil policies violate the Religious Land Use and Institutionalized

Persons Act of 2000, 42 U.S.C §§ 2000cc to 2000cc-5.

2. Summary relief is GRANTED in favor of Respondents on the claim

that DOC s prayer oil policy violates Petitioner’s constitutional

rights under the First Amendment to the United States Constitution.

i

' . Tf

3. Summary relief is DENIED on the claim that DOC’s phone policy

violates

Petitioner’s

constitutional

rights

under the First

Amendment to the United States Constitution.

It is further ordered that DOC’s request to dismiss Governor Thomas

Corbett from this case is GRANTED.

.

P. KEVIN BROBSON, Judge

Certified from the Record

m 13 2M

ArtdOreterExi

i

AlPci)d/~)C

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

No. 10EAP 2019

GREGORY THOMAS

Appellant

Notice of Appeal from the Order of

Commonwealth Court dated March 22,

v.

2019, at No. 458 M.D. 2013 granting in part

and denying in part application for summary

TOM CORBETT, ETAL, GOVERNOR OF: relief

PENNSYLVANIA, JOHN E. WETZEL, ET :

AL„ SECRETARY OF CORRECTIONS, :

SHIRLEY R. MOORE SMEAL, DEPUTY :

SECRETARY OF CORRECTIONS, HIS :

POLICY EXECUTIVE BOARD MAKERS :

SUED IN THEIR INDIVIDUAL

CAPACITIES AND OFFICIAL

CAPACITIES,

:

.

Appellees

ORDER

PER CURIAM

AND NOW, this 17th day of July, 2019, Appellees’ Motion to Quash Appeal is

GRANTED, without prejudice to Appellant’s ability to raise the claims therein on appeal

from a final order of the Commonwealth Court. See United States Orgs. for Bankr. Alts

■i

Inc. v. Dep't of Banking, 26 A.3d 474 (Pa. 2011).

r

AsTOfeo7^(p^SBant’s Motion for Appointment of Counsel is DISMISSED as moot.

Attest:

John W. Person Jr., tsquireT

Deputy Prothonotary

Supreme Court of Pennsylvania

v.'.

..

•.

«

'■

Exhibit A '3- $

CflEX / A

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gregory Thomas,

Petitioner

v.

Tom Corbett et, al

Governor of Pennsylvania

John E. Wetzel, et, al.

Secretary of Corrections

Shirley R.Moore Smeal

Deputy Secretary of Corrections

His Policy Executive Board Makers

Sued in Their Individual Capacities

and Official Capacities,

Respondents

PER CURIAM

No. 458 M.D. 2013

ORDER

Now, August 22, 2018, petitioner’s Response to Fact Startment [sic]

of Commonwealth, which appears to be petitioner's attempt to file an amended answer

to new matter, is dismissed as unauthorized.

Certified from the Record

AUG 2 8 2018

And Order Exit

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

r

Gregory Thomas,

Petitioner

v.

Tom Corbett et, al

Governor of Pennsylvania

John E. Wetzel, et, al.

Secretary of Corrections

Shirley R.Moore Smeal

Deputy Secretary of Corrections

His Policy Executive Board Makers

Sued in Their Individual Capacities

and Official Capacities,

Respondents

No. 458 M.D. 2013

ORDER

PER CURIAM

Now, April 26, 2018, upon consideration of petitioner’s motion for

appointment of counsel, the motion is denied. Petitioner is not entitled to appointed

counseHnthis type of civil action. See Harris v. Dep’t of Carr., 714 A.2d 492 (Pa.

s'

Cmwlth. 199$).

Certified from the Record

APR 27 2018

And Order Exit