Thomas v. Corbett

CourtCommonwealth Court of Pennsylvania
Citation90 A.3d 789
Decision Date29 April 2014
PartiesGregory 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.

90 A.3d 789

Gregory THOMAS, Petitioner
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.

Commonwealth Court of Pennsylvania.

Submitted on Briefs Dec. 20, 2013.
Decided April 29, 2014.

[90 A.3d 792]

Gregory Thomas, pro se.

Debra Sue Rand, Assistant Counsel, Mechanicsburg, for respondents.

BEFORE: McGINLEY, Judge, and BROBSON, Judge, and COLINS, Senior Judge.


Petitioner Gregory Thomas (Thomas) filed a complaint (Complaint) against Governor Tom Corbett, Secretary of Corrections John E. Wetzel, and Deputy Secretary of Corrections Shirley R. Moore Smeal (collectively DOC).1 In his Complaint, Thomas seeks declaratory and injunctive relief with respect to DOC policies that he claims infringe on various constitutional rights arising under the First, Eighth, and Fourteenth Amendments to the United States Constitution and violate the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA).2 DOC filed preliminary objections to the Complaint, challenging the legal sufficiency of his claims. We now overrule, in part, and sustain, in part, DOC's preliminary objections.

1. Conjugal Visits Policy

Thomas raises several claims in the Complaint relating to DOC's conjugal visit policy, which precludes conjugal visits for all inmates. Thomas avers that his religion requires him to marry and, in fact, to have multiple wives. Thomas avers that DOC's policy concerning visits from spouses precludes him from enjoying conjugal visits with his wives. Thomas avers that this policy has a detrimental effect on the status of his marriages, because his wives are threatening to divorce him under Islamic religious rules if they are unable to have intercourse with him. Based upon these averments, Thomas asserts that the

[90 A.3d 793]

policy constitutes an unconstitutional infringement on his rights under the First Amendment to practice his religion.

Thomas also avers that DOC's refusal to permit conjugal visits is discriminatory and violates equal protection, because the general homosexual prison population is able to engage in sexual conduct with one another, but heterosexual males may not have sex. Thomas also avers that the presence of female correctional officers causes him emotional stress, which he characterizes as punishment and, apparently, claims constitutes a violation of the Eighth Amendment's prohibition against cruel and unusual punishment. Thomas also claims that the conjugal visit policy violates RLUIPA.

2. Prayer Oil Policy

Thomas also challenges DOC's “revised” policy, which prohibits him from obtaining and using oil that he avers is required by his religion to engage in prayer activities. Thomas avers that he believes that the oil is necessary, because without it “the jinn is all around,” 3 which, he claims, prevents his prayers from being answered. Thomas contends that the policy unconstitutionally prohibits his right to practice his religion and violates his First, Eighth, and Fourteenth Amendment rights, as well as his equal protection rights. Thomas does not specifically raise RLUIPA with regard to this policy, but in his request for relief he appears to seek relief regarding this policy based also on RLUIPA.

3. Phone Policy

DOC's phone policy prevents two inmates from having the same phone contact number on their phone list. Thomas avers that this policy cuts off his ability to communicate with his family and friends. Thomas suggests that a number of inmates, like him, are from Philadelphia and have the same friends and family. Thomas asserts that the policy violates his First Amendment rights.

4. Commissary Policy

Thomas also objects to DOC's regulation concerning inmates' rights to purchase items from outside sources, 37 Pa.Code § 94.3. Thomas appears to aver that the regulation permits him to purchase items from sources other than the institution's commissary only if an item is not listed on the master commissary list. Thomas specifically avers that his family may not purchase sneakers for him from a source for sneakers that would be less expensive than the sneakers available through the commissary. Thomas avers that he cannot afford to pay the price of some items on the commissary list and that this constitutes discrimination against him based on his impoverished status. Thomas also contends that the policy violates his equal protection rights.

5. Relief Sought

Thomas seeks declaratory relief in the nature of an order declaring that the foregoing DOC policies violate his constitutional rights and his statutory rights under the RLUIPA. Thomas seeks injunctive relief to prevent DOC from applying the challenged policies and asks that DOC desist from applying the subject policies until it adopts other policies responsive to his claims.

[90 A.3d 794]


In ruling on preliminary objections, we accept as true all well-pleaded material allegations in the petition for review and any reasonable inferences that we may draw from the averments. Meier v. Maleski, 167 Pa.Cmwlth. 458, 648 A.2d 595, 600 (1994). The Court, however, is not bound by legal conclusions, unwarranted inferences from facts, argumentative allegations, or expressions of opinion encompassed in the petition for review. Id. We may sustain preliminary objections only when the law makes clear that the petitioner cannot succeed on his claim, and we must resolve any doubt in favor of the petitioner. Id. “We review preliminary objections in the nature of a demurrer under the above guidelines and may sustain a demurrer only when a petitioner has failed to state a claim for which relief may be granted.” Armstrong Cnty. Mem'l Hosp. v. Dep't of Pub. Welfare, 67 A.3d 160, 170 (Pa.Cmwlth.2013).

A. Conjugal Visit Policy

Courts have held that a correctional authority's policy to deny conjugal visits does not deny an inmate any constitutional right. McCray v. Sullivan, 509 F.2d 1332, 1334 (5th Cir.1975), cert. denied,423 U.S. 859, 96 S.Ct. 114, 46 L.Ed.2d 86 (1975); Imprisoned Citizens Union v. Shapp, 451 F.Supp. 893, 898–99 (E.D.Pa.1978). Thus, Thomas cannot prevail on his constitutional challenges to the policy.

Section 3 of RLUIPA, 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 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, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005), the United States Supreme Court, in addressing a facial First Amendment Establishment Clause 4 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, 125 S.Ct. 2113. 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, 125 S.Ct. 2113. 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.

In Cutter, the Supreme Court held that RLUIPA bars inquiry into whether a particular practice is central to an inmate's religion, id. at 725 n. 13, 125 S.Ct. 2113 but permits an institutional defendant to challenge an inmate's RLUIPA claims where the defendant can demonstrate that the inmate does not sincerely believe in the religion or practice. Id. When an inmate makes an affirmative showing in his pleadings that an institutional policy or regulation has substantially burdened his sincerely held religious beliefs, the institution must demonstrate that the burden is the

[90 A.3d 795]

least restrictive means of furthering a compelling governmental interest. Id. at 715–16, 125 S.Ct. 2113.

This holding mirrors the precedent that had been applied in challenges under RLUIPA's predecessor statute, the Religious Freedom Restoration Act (RFRA). 5 As our Supreme Court explained: “Congress enacted RFRA to restore application of the ‘compelling interest’ test established in Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) ... to free exercise claims.” Commonwealth v. Stewart, 547 Pa. 277, 290 n. 5, 690 A.2d 195, 201 n. 5 (1997). Under the “compelling interest” standard developed under RFRA, which is identical to the standard set forth in RLUIPA, our own Supreme Court held that “[o]nce the plaintiff has satisfied his or her burden, the government must establish that the burden advances a compelling interest and is the least restrictive means of doing so.” Id. at 290, 690 A.2d at 201.

In Mobley v. Coleman, 65 A.3d 1048 (Pa.Cmwlth.2013), this Court addressed preliminary objections DOC filed with regard to a prisoner complaint challenging a policy that he claimed burdened his religious beliefs. The inmate, Mobley, objected to DOC's refusal to provide a separate worship for his avowed religion, the Nation of Islam. Mobley asserted that DOC, in addition to refusing to provide a worship service distinct from one afforded a different Islamic sect, also compelled inmates who practiced the Nation of Islam religion to support and attend the other sect's services. Mobley contended that DOC's actions violated, inter alia, his rights under RLUIPA.

With regard...

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