Argued: March 21, 2017
from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:11-ct-03020-BR)
Matthew Thomas Houston, Ashley Lee Hogewood, III, K&L
GATES LLP, Raleigh, North Carolina, for Appellant.
Christina Ann Kelley, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellees.
H. Culver, III, K&L GATES LLP, Charlotte, North Carolina,
Stuart Bruce, Acting United States Attorney, Matthew L.
Fesak, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellees.
WILKINSON, DIAZ, and FLOYD, Circuit Judges.
to the Adam Walsh Child Protection and Safety Act of 2006
(the "Adam Walsh Act"), 18 U.S.C. § 4248, the
government certified Thomas Matherly as a sexually dangerous
person in November 2006. At the time, Matherly was in the
custody of the Federal Bureau of Prisons (the
"BOP") at the Federal Correctional Institution in
Butner, North Carolina ("FCI Butner"), serving a
41-month sentence for possession of child pornography. In May
2012, a court in the Eastern District of North Carolina
civilly committed Matherly as a sexually dangerous person,
and he remains at FCI Butner today.
awaiting his civil commitment hearing, Matherly filed suit
against BOP employees in their official capacities (the
"BOP Defendants") challenging various conditions of
his confinement at FCI Butner. The district court dismissed
some of Matherly's claims and subsequently granted
summary judgment as to the others, and Matherly appealed.
Finding no constitutional or statutory violations flowing
from the conditions of Matherly's confinement, we affirm.
recite the relevant facts in the light most favorable to
Matherly. The thrust of Matherly's pro se complaint is
that his confinement at FCI Butner violates the Due Process
Clause of the Fifth Amendment because certain conditions
applicable to him are more restrictive than, identical to, or
similar to conditions applicable to prisoners housed at FCI
Butner. He also alleges violations of his rights under the
First Amendment and the Fair Labor Standards Act (the
respect to his claims under the Fifth Amendment and as is
relevant here, Matherly resides in the Maryland Unit at FCI
Butner, which houses all-and only-civil detainees. As such,
he is subject to BOP policies that are "punitive in
effect." J.A. 31. Matherly must wear the same uniform as
a prisoner, is limited to purchasing the same items from the
commissary that a prisoner can purchase, and can watch only
those television programs that a prisoner can watch.
Furthermore, he is double-bunked with another civil detainee.
comes into contact with criminal detainees on a daily basis.
He eats in FCI Butner's mess hall, where prisoners serve
him his food and otherwise congregate. The Maryland Unit
contains offices for BOP staff, which prisoners visit daily
to see staff members. Prisoners also walk through the
Maryland Unit three times a day to bring a food cart to the
Special Housing Unit, even though there is a separate
entrance to that unit. And when Matherly needs his hair cut,
a prisoner cuts it.
"often taunt and harass" Matherly and the other
civil detainees, "calling them '[b]aby rapers'
and 'child molest[e]rs.'" J.A. 29. Matherly
contends that "[t]his threatening and harassing behavior
. . . could very likely lead to a physical confrontation at
some point." J.A. 29. That is especially true because
"in a prison setting a sex offender is the most despised
type of inmate." J.A. 32. However, "BOP Food
Service staff often laugh when this harassment occurs."
actions by the BOP, employees strip search civil detainees to
punish them, often after one of them complains about living
conditions or staff members. The searches are conducted to
intimidate and humiliate. Matherly "has been subjected
to these types of searches after arguing or disagreeing with
correctional staff that he isn't an
'inmate.'" J.A. 34. The BOP also conducts random
mass shakedowns, which involve a search of detainees'
living quarters for contraband.
also alleges that he would like to take more educational and
vocational training courses, but doesn't have the same
opportunities as a prisoner. Furthermore, prisoners can
participate in Narcotics Anonymous and Alcoholics Anonymous,
but civil detainees cannot.
respect to his First Amendment claim, Matherly says that all
of his incoming and outgoing mail is inspected. He suggests
as an alternative that he be allowed to open his mail in the
presence of a BOP official. Finally, as for his FLSA claim,
Matherly has a job at FCI Butner which pays 29 cents per
hour, and he contends that he should be paid at the federal
district court partially granted the BOP Defendants' Rule
12(b)(6) motion to dismiss. As is relevant here, the court
grouped together Matherly's claims about double-bunking,
wearing a uniform, purchasing items from the commissary, and
watching television (the "BOP Policies Claims") and
dismissed them because Matherly had failed to show that those
policies were punitive. The court also dismissed claims about
encountering prisoners and being threatened by them (the
"Commingling with Prisoners Claims") because
Matherly alleged only speculative harm, and dismissed the
FLSA claim because that statute does not apply to Adam Walsh
Act detainees. However, the court allowed Matherly's
claims about strip searches and mass shakedowns (the
"Strip Searches and Mass. Shakedowns Claims"),
incoming and outgoing mail (the "Mail Claims"), and
educational and vocational programs (the "Educational
and Vocational Programs Claims") to proceed.
ensued, and Matherly deposed several BOP employees. He also
retained Deborah McCulloch as a pro bono expert in support of
his claims. McCulloch is a licensed clinical social worker
who has held various positions with the state of Wisconsin,
including Superintendent of the Sand Ridge Secure Treatment
Center, in which capacity she implemented Wisconsin's
civil commitment program for sexually violent persons.
respect to the Strip Searches and Mass. Shakedowns Claims,
BOP Lieutenant Hilda Candelario gave deposition testimony
that she investigates fights and assaults at FCI Butner.
According to Candelario, the Maryland Unit experiences
fights, assaults, and attempts to harbor weapons and
contraband, just as do the parts of FCI Butner where
prisoners are housed. Prisoners and civil detainees are
treated the same when it comes to strip searches and mass
shakedowns. As to strip searches, "[t]here are certain
policies in place." J.A. 268. In particular, a civil
detainee is strip searched if he meets with a visitor,
reenters the Maryland Unit after returning from outside of
FCI Butner or from "an administrative or detention
issue, " or is suspected of possessing contraband. J.A.
269. As to mass shakedowns, every part of FCI Butner is
searched "within a certain amount of time, " but
there is no set schedule for doing so because the civil
detainees and prisoners would become aware of it if one
existed. J.A. 270. There are a number of reasons why the BOP
might decide to conduct a mass shakedown. For example, a
supervising officer can order one as a matter of discretion,
and the BOP sometimes conducts one in response to finding
large amounts of contraband during "regular
searches." J.A. 271.
expert report, McCulloch acknowledged that "[s]earches
of areas, rooms, and persons are important in secure
facilities in order to control contraband and to enhance the
safety of its residents, visitors, and staff, " and that
"[s]trip searches are common across other sex offender
civil commitment programs in secure facilities." J.A.
296. She also noted that "[p]eriodic searches of an
entire institution or areas of an institution are important
in order to maintain security and enhance safety, " and
that "state civil commitment treatment programs"
use similar techniques. J.A. 296. But she criticized the lack
of written policies at FCI Butner, opining that written
policies help ensure that strip searches are performed
"in a manner that preserves a person's dignity and
privacy as much as possible, " and that "[i]t is
nearly impossible to provide a consistent, non-arbitrary
search of rooms and areas without a specific policy on
allowable items." J.A. 296.
district court granted summary judgment as to the Strip
Searches and Mass. Shakedowns Claims because no reasonable
fact finder could conclude that the BOP's use of strip
searches and mass shakedowns amounted to unconstitutional
respect to the Mail Claims, Dr. Karen Steinour gave
deposition testimony that she is the administrator of the
BOP's Commitment and Treatment Program, in which capacity
she supervises treatment and clinical services for civil
detainees and court-ordered forensic evaluations for §
4248 proceedings. According to Steinour, the BOP reviews all
mail to and from the Maryland Unit, save for legal mail. As
far as she is aware, there is no written policy regarding the
review of detainee mail. By contrast, the BOP searches
prisoners' mail on a random basis.
used to randomly screen Maryland Unit mail, but those random
screenings revealed "that individuals were writing about
hurting kids." J.A. 205. For example, the BOP
intercepted letters where civil detainees wrote to other
inmates in order to arrange for children to visit FCI Butner
for the purpose of being molested. In addition to threatening
the safety of individuals outside of FCI Butner, that sort of
correspondence, which contains "harmful materials,
" has the potential to "negatively affect the
treatment" of the civil detainees. J.A. 192. Those sorts
of letters prompted the BOP to take "a more conservative
approach." J.A. 205. Under the current policy, the
mailroom screens all incoming publications and the Maryland
Unit secretary, Norma Baskerville, reviews all
employees have had formal training on how to review
publications. That training includes showing them examples of
proscribed content. Employees have "parameters" to
work within, such as looking for "things that depict . .
. sexual deviance and glorify victimization of others."
J.A. 194. Moreover, employees and supervisors discuss
individual publications in order to decide whether the
content is problematic.
the mailroom employees, Baskerville has not had formal
training on how to review correspondence. However, Steinour
has "had a lot of contact with [her]" regarding
"what to look for in letters." J.A. 197. For
example, Baskerville looks for "certain pictures and
icons that identify certain groups of individuals who are
into man-boy love, " as well as for "certain
phrases, if used in certain contexts, [which] might be
communicating something very different" from what they
appear to be "on the surface." J.A. 197-98. And, as
the mailroom employees do, Baskerville will often consult
with a supervisor in order to decide whether content is
either a mailroom employee or Baskerville finds a piece of
mail to be problematic, the item is flagged for further
review by Steinour. Ultimately, however, only the warden may
withhold mail from being delivered. "[I]t's not real
often that mail is not delivered." J.A. 199. However,
flagged mail may be shared with the detainee's treatment
providers or used for future commitment proceedings.
expert report, McCulloch opined that "[i]n the absence
of a detailed written policy and guidelines regarding
incoming and outgoing mail for the civilly committed
population, there is a risk for staff to make arbitrary
decisions about what is counter-therapeutic and what is
not." J.A. 297. In her experience, "[i]t is
relatively easy to identify security issues and general
contraband, but it is much more difficult to define
counter-therapeutic content." J.A. 298. She also noted
that "[t]he civil commitment programs with which I am
most familiar do, to varying degrees, review and monitor mail
but do so with written policies." J.A. 297.
district court granted summary judgment as to the Mail
Claims, concluding that the BOP's mail policies were
reasonably related to its legitimate interests of maintaining
institutional safety, rehabilitating civil detainees, and
protecting the public.
the Educational and Vocational Programs Claims, however, the
court denied summary judgment, finding "a genuine
dispute of material fact as to whether defendants'
limitations on Matherly's access to educational and
vocation[al] programs [were] reasonably related to treatment
and security interests." J.A. 552. Steinour's
declaration was the only evidence that the court balanced
against the allegations in Matherly's complaint and
McCulloch's expert report, which the court said
"confirmed Matherly's assertion that" no
vocational courses were available. J.A. 551. With some
exceptions, Steinour spoke about the educational and
vocational opportunities at FCI Butner in general terms. For
example, as the court noted, Steinour "stated that there
'may be' additional educational programs available to
civil detainees within the Maryland Unit, " but did not