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Heyer v. United States Bureau of Prisons

United States Court of Appeals, Fourth Circuit

February 23, 2017

THOMAS HEYER, Plaintiff - Appellant,
UNITED STATES BUREAU OF PRISONS; THOMAS R. KANE, in his official capacity as Acting Director of the United States Bureau of Prisons; IKE EICHENLAUB, in his official capacity as Regional Director of the United States Bureau of Prisons Mid-Atlantic Region; WARDEN SARA M. REVELL; WARDEN TRACY W. JOHNS; JEFFERSON B. SESSIONS, III, Attorney General, Defendants-Appellees. and ROBERT PAUL BOYD, Plaintiff, NATIONAL ASSOCIATION OF THE DEAF, Amicus Supporting Appellant.

          Argued: October 26, 2016

         Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, Chief District Judge. (5:11-ct-03118-D)


          Ian S. Hoffman, ARNOLD & PORTER LLP, Washington, D.C., for Appellant.

          Robert J. Dodson, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellees.

         ON BRIEF:

          Deborah Golden, Elliot Mincberg, WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS & URBAN AFFAIRS, Washington, D.C.; David B. Bergman, ARNOLD & PORTER LLP, Washington, D.C., for Appellant.

          John Stuart Bruce, Acting United States Attorney, Jennifer P. May-Parker, Jennifer D. Dannels, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellees.

          Marc Charmatz, Howard A. Rosenblum, Debra Patkin, NATIONAL ASSOCIATION OF THE DEAF, Silver Spring, Maryland, for Amicus Curiae.

          Before MOTZ, TRAXLER, and FLOYD, Circuit Judges.


         Appellant Thomas Heyer has been deaf since birth. His native language is American Sign Language ("ASL"), and he communicates primarily though ASL. Heyer is presently confined as a sexually dangerous person, see Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587, at the federal correctional institution in Butner, North Carolina. Heyer brought this action against the United States Bureau of Prisons and other defendants (collectively, "BOP"), raising various claims related to BOP's failure to provide ASL interpreters for medical appointments and other important interactions, its refusal to provide Heyer with access to a videophone, and its failure to otherwise accommodate his deafness. The district court granted summary judgment in favor of BOP, and Heyer appeals. As we will explain, we affirm the district court's dismissal of Count III, as Heyer does not challenge that ruling on appeal, but we vacate the remainder of the district court's order and remand for further proceedings.[1]



          Heyer was previously convicted of possessing child pornography. In 2007, Heyer violated the terms of his supervised release and served the resulting eighteen-month sentence at Butner. Shortly before that sentence expired in December 2008, the government filed a petition seeking to detain Heyer under the Adam Walsh Act. Heyer has remained in civil custody at Butner since that filing. The district court held a hearing on the government's petition in May 2012 and ordered Heyer detained as a sexually dangerous person. We affirmed that order on appeal. See United States v. Heyer, 740 F.3d 284 (4th Cir. 2014).

         Under the terms of the Adam Walsh Act, Heyer will remain in civil custody until such time as the government determines that his "condition is such that he is no longer sexually dangerous to others, or will not be sexually dangerous to others if released under a prescribed regimen of medical, psychiatric, or psychological care or treatment." 18 U.S.C. § 4248(e). When making this determination, BOP's mental health professionals may consider, among other things, evidence "[e]stablished through interviewing and testing of the person"; evidence "[o]f the person's denial of or inability to appreciate the wrongfulness, harmfulness, or likely consequences of engaging or attempting to engage in sexually violent conduct or child molestation"; and evidence "[i]ndicating successful completion of, or failure to successfully complete, a sex offender treatment program." 28 C.F.R. § 549.95.

         Adam Walsh detainees at Butner are expected to participate in the "Commitment and Treatment Program" ("CT Program"). designed for Adam Walsh detainees. J.A. 305. The CT Program includes mental health treatment in group and individual settings, daily meetings, and other "contextual activities" that "maximize the opportunities for therapeutic gain." J.A. 536. Heyer began participating in the CT Program in July 2012.


         As noted, Heyer has been deaf since birth and communicates primarily through ASL. Heyer cannot read lips and has no ability to understand speech. Heyer, who has an eighth-grade education, has extremely limited proficiency in English. The lexicon and syntax structure of English and ASL are entirely different, and Heyer cannot communicate effectively in written English.[2]

         Since arriving at Butner in December 2008, Heyer has made multiple requests for ASL interpreters. BOP officials refused to provide qualified interpreters for any purpose until late 2012, more than a year after this case was commenced.

         Heyer has high blood pressure and cholesterol, and he has had multiple seizures during his time at Butner. From 2008 until December 2012, however, BOP refused to provide Heyer with ASL interpreters for scheduled medical appointments or during medical emergencies. Because no ASL interpreter was present at medical appointments, Heyer has had difficulty understanding the instructions for taking and refilling his prescription medications. For example, in February 2011, Heyer went without his blood pressure medication because he did not understand the doctor's refill instructions. In November 2011, Heyer suffered a seizure while in his cell. Alerted to the problem by Heyer's cellmate, the officer on duty concluded that Heyer "looked fine, " J.A. 36, and did not seek medical attention for Heyer. Heyer finally saw a doctor more than a month after the seizure, but no interpreter was provided for him.

         In 2010, prison officials assigned another inmate to act as Heyer's "inmate companion person" to help Heyer communicate with others. Although the inmate companion does not know ASL, [3] BOP required Heyer to rely on him during medical interactions.

         As to the CT Program designed for Adam Walsh detainees, BOP officials concluded that Heyer's inmate companion would be "inadequate" to facilitate Heyer's participation. J.A. 1117. BOP nonetheless did not provide Heyer with ASL interpreters for the CT Program until September 2012; even then, interpreters were provided for only some portions of the Program.

         In December 2012 -- eighteen months after the initiation of this action -- BOP announced that it would provide ASL interpreters for Heyer's scheduled medical appointments. Through October 2013, however, Heyer had at least nine medical interactions (whether scheduled appointments or emergencies) where no interpreter was provided, including at least two scheduled appointments. See J.A. 495, 1285.

         At some point after the commencement of this action, BOP entered into a contract with a provider of video remote interpreting ("VRI") services, which provides Internet-based 24hour, on-demand access to qualified ASL interpreters, for use in cases of medical emergencies or other urgent interpreting needs. In an affidavit dated August 21, 2014, a BOP official stated that VRI services would be available to Heyer "in the very near future, " assuming the provider and interpreters could meet BOP's background-check requirements. J.A. 301.


         Heyer communicates with the outside world through email and through the use of a "TTY" device, which contains a keyboard and permits written messages to be sent between TTY devices over a telephone line. TTY does not permit real-time conversations, and each conversation over a TTY device takes significantly longer than signed or spoken conversations. Effective communication over a TTY device requires proficiency in written English, which Heyer lacks. There are only two TTY devices at Butner, both of which are in locked staff offices. Heyer thus can use the TTY device only with the assistance of a staff person, and only a few staff members are trained on its use. Staff members frequently deny Heyer access to the TTY during the day, and, because of staffing issues, he has essentially no ability to use it at night or on the weekends. Inmates who are not deaf have free use of the telephone at Butner and do not need to seek staff permission.

         TTY is old technology that is fast becoming obsolete. Over the last decade, many deaf people have migrated from TTY devices to videophones. Because a TTY device is required on both ends of the call, the abandonment of TTY technology means there are fewer and fewer people with whom Heyer can communicate.

         A videophone works much like a telephone does for a hearing person. As explained in the record, a videophone is a telephone operated through a computer or stand-alone device which has a camera and screen for visual, real-time communication. If users on both ends of the conversation have a videophone, they can communicate directly and visually using ASL. If one user does not have a videophone, the deaf person can use the videophone to access Video Relay Service ("VRS"). With VRS, the deaf person communicates visually with an operator, using ASL, and the operator interprets the conversation orally to the non-deaf party through a telephone.

         Heyer's deafness has caused him other problems while at Butner. For example, Heyer does not attend religious services because he cannot understand or participate without an interpreter. Heyer cannot understand announcements made over the prison's public address system. He cannot access goods sold through the commissary, because the goods are handed through a mirrored window by a person with whom Heyer cannot interact. Heyer attends a GED preparation class, but his participation is very limited because no interpreter is provided. Heyer has missed or been late for scheduled activities because BOP has refused to provide him with a vibrating watch or vibrating bed device. Other inmates have had to alert Heyer to fire alarms because he cannot hear the alarm sounding through the prison. In March 2014 -- almost three years after the commencement of this action -- BOP installed an emergency flashing light in his cell. However, the flashing strobe light is very similar to the periodic flashing of staff flashlights, which makes it difficult for Heyer to determine whether there is an emergency.


         In 2011, Heyer brought this action against BOP. In the complaint, Heyer asserted that BOP violated the Rehabilitation Act of 1973 by failing to provide ASL translators and otherwise accommodate his disability. Heyer also asserted multiple violations of his Fifth Amendment rights, including claims based on BOP's failure to provide ASL interpreters for medical appointments and to permit him to participate in the CT Program and communicate with the mental health officials responsible for determining the duration of his civil commitment. Heyer also alleged violations of his First Amendment rights based on BOP's failure to provide access to a videophone and its restrictions on access to the TTY device (Count VIII). Finally, Heyer alleged violations of his rights under the First Amendment and the Religious Freedom Restoration Act of 1993 ("RFRA"), based on BOP's failure to provide ASL interpreters so Heyer can participate in religious services.

         The district court dismissed the Rehabilitation Act claim (Count I) for failure to exhaust administrative remedies, and it dismissed Heyer's Fifth Amendment right-to-privacy claim (Count V) for failure to state a claim. See Heyer v. United States Bureau of Prisons, 2013 WL 943406, at *3, (E.D. N.C. Mar. 11, 2013) (unpublished). The court thereafter granted summary judgment in favor of BOP on the remaining claims. The court dismissed one claim for lack of standing, rejected some claims on the merits, and rejected others as moot, based on BOP's post-litigation decision to begin providing ASL interpreters for certain purposes. See Heyer v. United States Bureau of Prisons, 2015 WL 1470877 (E.D. N.C. Mar. 31, 2015) (unpublished). Heyer now appeals the district court's 2015 summary judgment ruling[4]; he does not appeal the district court's 2013 dismissal of Counts I and V of his complaint.

         "We review a district court's decision to grant summary judgment de novo, applying the same legal standards as the district court, and viewing all facts and reasonable inferences therefrom in the light most favorable to the nonmoving party." T-Mobile Ne., LLC v. City Council of Newport News, 674 F.3d 380, 384-85 (4th Cir. 2012) (internal quotation marks omitted). Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a).


         We begin with Heyer's claims that BOP's failure to provide ASL interpreters for medical interactions amounts to deliberate indifference to Heyer's medical needs. The deliberate-indifference standard comes from the Supreme Court's Eighth-Amendment jurisprudence applicable to prisoners convicted of a crime. "[T]he Eighth Amendment's prohibition against 'cruel and unusual punishments' [extends] to the treatment of prisoners by prison officials, " Hill v. Crum, 727 F.3d 312, 317 (4th Cir. 2013), and "forbids the unnecessary and wanton infliction of pain, " id. (internal quotation marks omitted). As the Supreme Court has explained, "deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment." Estelle v. Gamble, 429 U.S. 97, 104 (1976) (citation and internal quotation marks omitted).

         Although Heyer is a civil detainee rather than a convicted prisoner, Heyer nonetheless frames his argument in Eighth-Amendment terms, arguing that he is entitled under the Fifth Amendment to at least the same protection prisoners receive under the Eighth Amendment.[5] According to Heyer, the failure to provide interpreters amounts to deliberate indifference to his medical needs and thus violates his Fifth Amendment rights. As we will explain, we agree with Heyer that his evidence is sufficient to support a finding of deliberate indifference and that the district court therefore erred by granting summary judgment in favor of BOP on these claims.[6]

         The deliberate-indifference standard has two components. The plaintiff must show that he had serious medical needs, which is an objective inquiry, and that the defendant acted with deliberate indifference to those needs, which is a ...

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