United States District Court, E.D. North Carolina, Western Division
JAMES C. DEVER, III, Chied District Judge.
Thomas Heyer and Robert Paul Boyd are in the custody of the Bureau of Prisons pursuant to 18 U.S.C. § 4248. Each has been designated a sexually dangerous person. Plaintiffs filed this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) [D.E. 1]. On April 11, 2012, plaintiffs filed an amended complaint [D.E. 24].
On March 11, 2013, the court granted in part defendants' motion to dismiss, dismissing counts one and five of the amended complaint, and denied without prejudice the parties' motions for summary judgment. See Heyer v. U.S. Bureau of Prisons, No. 5:11-CT-3118-D, 2013 WL 943406 (E.D. N.C. Mar. 11, 2013) (unpublished). On September 23, 2013, the court denied defendants' motion to stay and allowed an extension of time to complete discovery and to file dispositive motions [D.E. 70]. The parties thereafter sought and obtained additional extensions of time to complete discovery and file motions [D.E. 94-95, 99-102, 107, 120].
On August 21, 2014, defendants filed a second motion to dismiss or for summary judgment [D.E. 111]. Because defendants attached materials that are outside the scope of the pleadings, the court construes the motion as requesting summary judgment. See Fed.R.Civ.P. 12(d). On October 14, 2014, plaintiffs responded in opposition to the motion for summary judgment [D.E. 124]. On October 28, 2014, plaintiffs moved for partial summary judgment on counts two, four, six, and eight of the amended complaint [D.E. 127]. On November 18, 2014, defendants responded in opposition to plaintiffs' motion for partial summary judgment [D.E. 130]. The parties also have filed motions to seal certain exhibits and documents [D.E. 123, 132, 135, 138, 140], and defendants request leave of court to conduct further audiology testing on Boyd [D.E. 134]. As explained below, the court grants in part defendants' motion for summary judgment, denies plaintiffs' motion for partial summary judgment, and dismisses the remaining counts as moot.
Plaintiffs Thomas Heyer ("Heyer") and Robert Paul Boyd ("Boyd") have been civilly committed to the custody of the Attorney General as sexually dangerous persons pursuant to 18 U.S.C. § 4248 and are confined at the Federal Correctional Institution in Butner, North Carolina ("Butner"), in the Commitment and Treatment Program ("CTP"). Am. Compl. [D.E. 24] ¶¶ 1-3; see Order, United States v. Boyd, No. 5:08-HC-2061-D (E.D. N.C. Jan. 27, 2012), [D.E. 66], aff'd, 537 F.Appx. 234 (4th Cir. 2013) (per curiam) (unpublished); Order, United States v. Heyer, No. 5:08-HC-2183-BO (E.D. N.C. July 9, 2012), [D.E. 81], aff'd, 740 F.3d 284 (4th Cir. 2014).
Plaintiffs are deaf. Am. Compl. ¶¶ 7, 11. Heyer has been deaf since birth, and his native language is American Sign Language ("ASL"). Id . ¶¶ 7-8. "Heyer's ability to read lips is limited, " id. ¶ 9, and his "English reading and writing skills are much lower than average." Id . ¶ 10; see Heyer Decl. [D.E. 124-11] ¶ 1; Pls.' Ex. A [D.E. 122] 9-10 (audiology report). Heyer can communicate with others through written notes, but "usually the person that's reading it does not understand what [Heyer has] written because [he] write[s] in ASL and their language is English." Heyer Dep. [D.E. 112-4] 8 (deposition page 31). In October 2008, while Heyer was still serving his criminal sentence, the Bureau of Prisons ("BOP") transferred him to Butner. Willis Decl. [D.E. 112-2] ¶ 9. On December 18, 2008, the United States filed a certificate pursuant to 18 U.S.C. § 4848(a) seeking Heyer's civil commitment as a sexually dangerous person. Id . ¶ 10; see § 4248(a) Certificate, United States v. Heyer, No. 5:08-HC-2183-BO (E.D. N.C. Dec. 18, 2008), [D.E. 1]. On July 8, 2012, after Heyer's commitment hearing, the court committed Heyer to the custody of the Attorney General pursuantto 18 U.S.C. § 4248(d). Order, United States v. Heyer, No. 5:08-HC-2183-BO (E.D. N.C. July 9, 2012), [D.E. 81], aff'd, 740 F.3d 284 (4th Cir. 2014); see Willis Decl. [D.E. 112-2] ¶ 12. Heyer entered the CTP that same month. Heyer Decl. [D.E. 124-11] ¶ 7. The CTP treatment team, however, did not include Heyer in any formal treatment until they secured an ASL interpreter. As the CTP treatment director acknowledges, the treatment team "cannot meaningfully communicate with Mr. Heyer without interpreters." Hemandez Dep. [D.E. 128-4] 3-4 (deposition pages 173-74); see Pls.' Ex. T [D.E. 122-9] (August 2, 2012 email); Steinour Dep. [D.E. 124-19] 7-9 (deposition pages 176-78).
Boyd "has been profoundly deaf since 1975, when he lost his hearing as a result of his military service." Am. Compl. ¶ 11; see Boyd Decl. [D.E. 124-12] ¶ 1. Boyd can communicate with others verbally by speaking to them and reading their lips, and by writing and using sign language. Boyd Dep. [D.E. 112-3] 22, 24 (deposition pages 68, 71); see Boyd Decl. [D.E. 124-12] ¶ 3; Pls.' Ex. A [D.E. 122] 3-5 (audiology report); cf.Am. Compl. ¶¶ 12-13 (alleging that Boyd uses ASL to communicate and his ability to read lips is limited). In March 2008, while Boyd was still serving his criminal sentence, the BOP transferred Boyd to Butner. Willis Decl. [D.E. 112-2] ¶ 4. On April 30, 2008, the United States filed acertificate pursuant to 18 U.S.C. § 4848(a) in this district seeking Boyd's civil commitment as a sexually dangerous person. Id . ¶ 5; see§ 4248(a) Certificate, United States v. Boyd, No. 5:08-HC-2061-D (E.D. N.C. Apr. 30, 2008), [D.E. 1]. On January 27, 2012, the court committed Boyd to the custody of the Attorney General pursuant to 18 U.S.C. § 4248(d). Order, United States v. Boyd, No. 5:08-HC-2061-D (E.D. N.C. Jan. 27, 2012), [D.E. 66], aff'd, 537 F.Appx. 234 (4th Cir. 2014) (per curiam) (unpublished); see Willis Decl. [D.E. 112-2] ¶ 7. Boyd entered the CTP in approximately February 2012. Boyd Decl. [D.E. 124-12] ¶ 6.
Plaintiffs allege that defendants have failed or refused to provide, inter alia, (1) qualified ASL interpreters or other appropriate auxiliary aids for plaintiffs' treatment program under section 4248, medical appointments, disciplinary proceedings, vocational, educational, and religious programs; (2) appropriate methods of non-aural notification of emergencies or other important events or announcements; and (3) equal and consistent access to telecommunications devices that would permit them to communicate with anyone outside of Butner. Am. Compl. ¶¶ 33, 36-62, 64-68. Plaintiffs assert that defendants' failure to implement such accommodations discriminates against plaintiffs because of their disabilities and violates several federal laws and the Constitution. Id . ¶¶ 79-140. Plaintiffs also assert that the conditions at Butner have adversely affected their ability to engage in religious activities, in violation of the Religious Freedom Restoration Act and the First Amendment. Id . ¶¶ 64, 141-54. Plaintiffs seek declaratory relief, injunctive relief, and attorneys' fees. Id . 31-32.
Heyer and Boyd made multiple requests for ASL interpreters beginning in 2008. Heyer Dep. [D.E. 124-9] 5-12, 19-21 (deposition pages 50-57, 109-11); Boyd Dep. [D.E. 124-10] 9-11 (deposition pages 78-80); Heyer Decl. [D.E. 124-11] ¶ 3; Boyd Decl. [D.E. 124-12] ¶ 4. In September 2012, Butner entered into a contract with a third party to provide certified ASL interpreters to Boyd and Heyer for group therapy sessions, morning community meetings with all participating members of the CTP, and Multidisciplinary Treatment Team meetings. See Malterer Decl. [D.E. 112-6] ¶¶ 5-6, 8-11; see also Heyer Dep. [D.E. 112-4] 19 (deposition page 133); Pls.' Exs. U [D.E. 124-21], Pls.' Ex. BB [D.E. 124-28]. Plaintiffs contend that "[e]ven with interpreters, [they] sometimes feel [they] cannot understand what is being communicated in the CTP programs due to the speed at which the hearing inmates and CTP staff speak." Heyer Decl. [D.E. 124-11] ¶ 8; Boyd DecI. [D.E. 124-12] ¶ 7. Heyer also believes (upon information from Boyd and another CTP inmate) that the interpreters "may not fully understand [his] signing, and therefore may not effectively relay [his] communications to CTP staff." Heyer Decl. [D.E. 124-11] ¶ 9.
In February 2013, Butner increased its contracted interpreter service to Heyer, providing him with an ASL interpreter for weekly individual therapy sessions. Malterer Decl. [D.E. 112-6] ¶ 7. Although Boyd does not receive individual therapy as frequently as Heyer, Butner will provide him with an ASL interpreter for individual therapy sessions upon his request. Malterer Decl. [D.E. 112-6] ¶ 13; see Boyd Dep. [D.E. 112-3] 41 (deposition page 173); but see Boyd Decl. [D.E. 124-12] ¶ 9. The parties dispute whether Boyd has ever requested an interpreter for individual therapy, or has expressed any communication difficulties to his therapist when there is no interpreter present for their individual therapy sessions. Compare Malterer Decl. [D.E. 112-6] ¶ 13, and Boyd Dep. [D.E. 112-3] 42 (deposition page 174), with Boyd Decl. [D.E. 124-12] ¶ 9. On one occasion, Boyd was interviewed "[w]ith great difficulty" by another psychiatrist to determine whether he might be eligible for discharge from the CTP. Boyd Dep. [D.E. 112-3] 40 (deposition page 172). Boyd had no advance notice of the meeting and did not request an interpreter during the meeting. Id . 41 (deposition page 173).
Butner provides plaintiffs with additional auxiliary aids. Since at least 2010, Heyer has been assigned an inmate companion ("ICP") "to assist in [his] everyday needs and functioning." Willis Decl. [D.E. 112-2] ¶ 26; see Heyer Dep. [D.E. 112-4] 10 (deposition page 97); Heyer Decl. [D.E. 124-11] ¶¶ 5-6. ICPs are not certified ASL interpreters. See Pls.' Ex. B [D.E. 124-2] 27-30 (Cokely Report pages 25-28); Pls.' Ex. M [D.E. 124-13] 3 (defendants' responses to plaintiffs' requests for admissions). Heyer's ICPs have assisted him by communicating his food requests during meals, accompanying him to the inmate commissary to purchase goods, and notifying him of mealtime announcements made over the loudspeaker. Heyer Dep. [D.E. 112-4] 11-12 (deposition pages 99-100). Boyd is not currently assigned an ICP, and the parties dispute whether he has ever requested one. Compare Boyd Dep. [D.E. 124-10] 25-26 (deposition pages 103-04), and Boyd Decl. [D.E. 124-12] ¶ 5, with Willis Decl. [D.E. 112-2] ¶ 27.
Butner has provided Boyd "hearing aids for both ears, a COM-Pilot with remote microphone, and a Y-cord that enables him to hear via an FM signal." Evans Decl. [D.E. 112-5] ¶ 10; cf. Boyd Dep. [D.E.112-3] 19-20, 42 (deposition pages 62-63, 174). Boydused to have significant difficulty obtaining hearing aid batteries, and "was expected to go for a week without a hearing aid." Boyd Dep. [D.E. 112-3] 19 (deposition page 62); see Am. Compl. ¶ 123. When Boyd complained to Butner staff about the problem, "they[ ] made it... so that any one of us that have the hearing aids can get a battery at any pill line call." Boyd Dep. [D.E. 112-3] 19 (deposition page 62). Boyd further acknowledges that Butner has now provided him with hearing aids that "are top of the line. They're new and they're about the most powerful they make." Id . [D.E. 112-3] 18 (deposition page 59); see Defs.' Resp. Opp'n Pls.' Mot. Part. Summ. J., Ex. 24 [D.E. 130-11] 2 (June 6, 2014 medical note indicating that Boyd "stated he understand every thing with his new hearing aids"). In 2011, Butner also provided Boyd with a whiteboard. Boyd Dep. [D.E. 124-10] 12 (deposition page 81).
Butner does not provide either Heyer or Boyd with an interpreter for "ancillary activities.... such as Yoga or Horticulture" or socializing with other CTP inmates, or for CTP evening meetings, which "generally occur two times a week after hours when treatment staff have left the facility." Malterer Decl. [D.E. 112-6] ¶¶ 17, 19; see Heyer Decl. [D.E. 124-11] ¶¶ 10-11; Boyd Decl. [D.E. 124-12], 10; Hernandez Dep. [D.E. 124-14] 37-38, 40 (deposition pages 114-15, 120); Am. Compl. ¶ 49. At these evening meetings, "an inmate-recorder writes down all relevant information discussed" and "[u] sually the following day, these notes are read aloud at the community meeting where a[n]... interpreter is present to interpret." Malterer Decl. [D.E. 112-6] ¶ 19; cf. Boyd Decl. [D.E. 124-12] ¶ 10 (describing the minutes as "a quick recap"). Heyer receives interpretive assistance during the meetings from two other CTP inmates, including Boyd. Heyer Dep. [D.E. 112-4] 13-14 (deposition pages 102-03).
The CTP treatment team believes that ancillary activities "assist the overall process" by "maximiz[ing] the opportunities for therapeutic gain and generalization." Hernandez Dep. [D.E. 124-14] 26 (deposition page 95). "[P]articipating in the informal activities of the [CTP] therapeutic community... is essential to treatment, treatment outcome, and essential to [the treatment team's] evaluation of progress." Id . [D.E. 124-14] 31 (deposition page 100). The CTP treatment team "ha[s] ongoing concerns about [Heyer's] ability to extract maximum benefit from the therapeutic community as a treatment modality" without an interpreter and has an "ongoing dialogue... to consider when do [they] need to provide more, expanded scope of services" to Heyer. Id . [D.E. 124-14] 42 (deposition page 176); see Hernandez Dep. [D.E. 128-4] 4 (deposition page 174).
"Heyer has never been sanctioned through a disciplinary hearing while incarcerated with the BOP." Willis Decl. [D.E. 112-2] ¶ 15; cf. Heyer Dep. [D.E. 112-4] 16 (deposition page 129); Am. Compl. ¶ 50. Should Heyer face a disciplinary proceeding, "the BOP will provide inmate Heyer with a qualified interpreter through either in-person interpreting services or video remote interpreting (VRI') services." Willis Decl. [D.E. 112-2] ¶ 16. Butner's Unit Disciplinary Committee ("UDC") has sanctioned Boyd on six occasions. Id . ¶ 18. The UDC sanctioned Boyd with the loss of commissary privileges, use of the inmate telephone, and visitation privileges, and removal from work detail for periods of time ranging from 60 days to one year. ld. ¶ 18. Butner did not provide Boyd with an interpreter for any disciplinary proceeding against him until September 2013, when an interpreter informed Boyd of his charges but was not present "for any other aspect of that proceeding, including the hearing itself." Boyd Decl. [D.E. 124-12] ¶¶ 13-14; see Boyd Dep. [D.E. 112-3] 38 (deposition page 149). Defendants indicate that in any future disciplinary proceeding, "the BOP will provide inmate Boyd with a qualified interpreter upon his request through either in-person interpreting services or VRI, provided that other auxiliary aids, such as hearing aids, written materials, etc., do not offer a means of effective communication." Willis Decl. [D.E. 112-2] ¶ 17. Boyd alleges that his unit counselor, who presides over Boyd's disciplinary proceedings, "has repeatedly told Mr. Boyd that he does not believe Mr. Boyd is deaf and has refused him effective communication in the form of a qualified ASL interpreter and other auxiliary aids on this ground." Am. Compl. ¶¶ 15, 50.
At Butner, Heyer and Boyd reside on a housing unit known as the Maryland Unit. See, e.g., Heyer Decl. [D.E. 124-11] ¶ 6; BoydDep. [D.E. 124-10] 5 (deposition page 74). The Maryland Unit always has had twelve emergency notification strobe lights installed throughout the unit, and in March 2014, "Butner installed four additional emergency strobe lights in four individual cells in the Maryland Unit." Willis Decl. [D.E. 112-2] ¶ 23; see Heyer Decl. [D.E. 124-11] ¶ 15; Boyd Decl. [D.E. 124-12] ¶ 19. "Butner also has a policy and procedure in place that requires correctional officers to conduct a thorough search of each room and all other areas to ascertain if everyone has been evacuated in the event of an emergency." Willis Decl. [D.E. 112-2] ¶ 25. Heyer states that on one occasion, "[a]nother inmate-not a BOP staff member-had to physically retrieve" him from his cell at night during a fire alarm "because of the similarity between the new flashing strobe light and the periodic flashing of BOP staff flashlights in my window at night." Heyer Decl. [D.E. 124-11] ¶ 16. Heyer and Boyd are both assigned to cells that contain a strobe light, and will continue to remain assigned to those cells "[a]bsent any exigent circumstances." Willis Decl. ¶ 24; see Heyer Decl. [D.E. 124-11] ¶ 15; Boyd Decl. [D.E. 124-12] ¶ 19. Heyer and Boyd cannot see any of the strobe lights if they are "in the shower in the common bathroom area." Heyer Decl. [D.E. 124-11] ¶ 16; Boyd Decl. [D.E. 124-12] ¶ 19. Butner has not installed any other safety devices, such as "vibrating ...