Argued: October 26, 2016
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)
Hoffman, ARNOLD & PORTER LLP, Washington, D.C., for
J. Dodson, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellees.
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.
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.
Charmatz, Howard A. Rosenblum, Debra Patkin, NATIONAL
ASSOCIATION OF THE DEAF, Silver Spring, Maryland, for Amicus
MOTZ, TRAXLER, and FLOYD, Circuit Judges.
TRAXLER, CIRCUIT JUDGE:
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.
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).
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.
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.
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
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.
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.
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,  BOP required
Heyer to rely on him during medical interactions.
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.
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,
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.
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
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.
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.
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.
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
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; he does not appeal the district
court's 2013 dismissal of Counts I and V of his
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.
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).
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. 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
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 ...