        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 in Their Individual Capacities      :
and Official Capacities,                 :
                           Respondents   :


BEFORE: HONORABLE ROBERT SIMPSON, Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ELLEN CEISLER, Judge


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 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
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

       1
           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
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 the 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
of Envtl. Prot., 193 A.3d 447, 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-1:
               42 U.S.C. § 2000cc-1 . . . 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
       5
          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. of Prob. &
Parole, 900 A.2d 949, 950 n.1 (Pa. Cmwlth. 2006) (taking judicial notice of information found 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.
       6
          The Court need not consider DOC’s argument that it is entitled to summary relief on
Thomas’s religious claims due to Thomas’s alleged failure to file his action prior to the expiration
of the statutes of limitations, because the Court grants summary relief in favor of DOC on those
religious claims on other grounds.


                                                 3
              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-1(a)(1)-(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. ___, ___, 135 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 Burwell 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 on
the second prong of the RLUIPA and does not mention whether the 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.



       8
         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.”10 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. In O’Lone v. Estate of Shabazz, 482
U.S. 342 (1987), the United States Supreme Court considered a First Amendment challenge to a
prison policy 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)
(quoting Shabazz v. O’Lone, 595 F. Supp. 928, 930 (D.N.J. 1984), vacated on other grounds, 782
F.2d 416 (3d Cir. 1986)). The United States District Court for the District of New Jersey in
Shabazz 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.”
Id. (quoting Shabazz, 595 F. Supp. at 930.) Thus, while we do not make a factual finding regarding
this term, it appears that Jumu’ah refers to a type of mandatory congregational service.

                                                8
               Concerning the question of whether the prayer oil policy imposes 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 does 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


       11
           Thomas has not met his burden of proving that the prayer oil policy substantially burdens
his religious beliefs; therefore, we may end our analysis at this point. Even if Thomas met this
burden, however, he could not succeed under the second prong, as is evident from our continued
analysis.

                                                 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
       12
           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, 974 A.2d 479
(Pa. 2009) (using “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 will have on guards, inmates, and prison resources;
             and, (4) whether there are “ready alternatives” to the rule
             that would accommodate prisoners’ rights at de minimus
             [sic] 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. Safley, 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 the most appropriate
means to accomplish them.” Overton v. Bazzetta, 539 U.S. 126, 132 (2003); accord
Smith, 26 A.3d at 557. In light of this deferential standard, the burden to prove a
valid connection between the policy and the penological interest is not on the
institution. Smith, 26 A.3d at 557. Rather, the inmate 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%20Inm
ate%20Telephone%20System.pdf (last visited March 18, 2019).
See Figueroa, 900 A.2d at 950 n.1 (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
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 interest 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 is no
dispute concerning any material fact on this claim. Accordingly, we will deny



compilation contains a notation that it was issued on February 12, 2014—which is after Thomas
filed his 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 in 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 Court
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’l Ass’n v. Exec. Bd. of Cmwlth., 39 A.3d 486, 493 (Pa. Cmwlth. 2012),
aff’d, 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 of Corr.,
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.




                                           P. KEVIN BROBSON, Judge




                                          14
        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.
           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
