Thomas Heyer v. U.S. Bureau of Prison
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 5:11-ct-03118-D. [1000029125]. [15-6826]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6826
THOMAS HEYER,
Plaintiff - Appellant,
and
ROBERT PAUL BOYD,
Plaintiff,
v.
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.
−−−−−−−−−−−−−−−−−−−−−−−−−−−
NATIONAL ASSOCIATION OF THE DEAF,
Amicus Supporting Appellant.
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)
Argued:
October 26, 2016
Decided:
February 23, 2017
Before MOTZ, TRAXLER, and FLOYD, Circuit Judges.
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Affirmed in part, vacated in part, and remanded by published
opinion.
Judge Traxler wrote the opinion, in which Judge Motz
and Judge Floyd joined.
ARGUED: 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.
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TRAXLER, Circuit Judge:
Appellant
native
Thomas
language
is
Heyer
has
American
been
Sign
communicates primarily though ASL.
deaf
since
Language
birth.
(“ASL”),
His
and
he
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
various
claims
defendants
related
interpreters
for
medical
interactions,
its
to
refusal
videophone,
deafness.
and
its
BOP’s
to
provide
to
“BOP”),
failure
appointments
failure
to
and
Heyer
provide
other
with
otherwise
raising
ASL
important
access
accommodate
to
a
his
The district court granted summary judgment in favor
of BOP, and Heyer appeals.
district
(collectively,
court’s
dismissal
As we will explain, we affirm the
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
I.
A.
1
Robert Boyd, another Adam Walsh detainee, was originally a
plaintiff in this action. His appeal was dismissed after it was
discovered that he was not deaf.
3
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Heyer
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was
pornography.
supervised
previously
In
2007,
release
and
sentence at Butner.
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convicted
Heyer
served
of
violated
the
possessing
the
terms
resulting
child
of
his
eighteen-month
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.
order on appeal.
We affirmed that
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
interviewing
and
other
things,
testing
of
evidence
the
“[e]stablished
person”;
evidence
through
“[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
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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”
designed for Adam Walsh detainees.
J.A. 305.
includes
in
mental
health
treatment
group
(“CT
Program”).
The CT Program
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.
B.
As noted, Heyer has been deaf since birth and communicates
primarily
through
ASL.
Heyer
ability to understand speech.
cannot
read
lips
and
has
no
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.
2
BOP officials refused
Because this is an appeal from the grant of summary
judgment, we recount the facts and the reasonable inferences to
be drawn therefrom in the light most favorable to Heyer, the
non-moving party. See Raub v. Campbell, 785 F.3d 876, 878 (4th
Cir. 2015).
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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.
3
When tested by Heyer’s expert, the inmate companion could
not even provide a “ratable sample of ASL,” meaning that he
(Continued)
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As to the CT Program designed for Adam Walsh detainees, BOP
officials
concluded
that
Heyer’s
inmate
companion
“inadequate” to facilitate Heyer’s participation.
would
be
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
interpreters
-for
BOP
announced
Heyer’s
that
scheduled
it
would
provide
medical
ASL
appointments.
Through October 2013, however, Heyer had at least nine medical
interactions
where
no
(whether
interpreter
scheduled appointments.
scheduled
was
appointments
provided,
or
including
emergencies)
at
least
two
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
could not provide “at least several minutes” of ASL use during a
20-minute proficiency assessment. J.A. 372.
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future,” assuming the provider and interpreters could meet BOP’s
background-check requirements.
J.A. 301.
C.
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.
and
each
longer
TTY does not permit real-time conversations,
conversation
than
signed
over
or
a
TTY
spoken
device
takes
significantly
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
ability to use it at night or on the weekends.
essentially
no
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.
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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”).
communicates
operator
visually
interprets
with
the
an
With VRS, the deaf person
operator,
conversation
using
orally
ASL,
to
the
and
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
interpreter.
cannot
understand
or
participate
without
an
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.
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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.
II.
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
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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
judgment in favor of BOP on the remaining claims.
summary
The court
dismissed one claim for lack of standing, rejected some claims
on the merits, and rejected others as moot, based on BOP’s postlitigation
decision
certain purposes.
to
begin
providing
ASL
interpreters
for
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
4
quotation
marks
omitted).
In Count III of the complaint, Heyer challenged BOP’s
failure
to
provide
ASL
interpreters
for
disciplinary
proceedings.
Because
Heyer
had
never
been
subject
to
disciplinary proceedings at Butner, the district court in its
2015 order dismissed the claim, concluding that Heyer lacked
standing to pursue it. Heyer does not challenge that dismissal
on appeal.
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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).
III.
We begin with Heyer’s claims that BOP’s failure to provide
ASL interpreters for medical interactions amounts to deliberate
indifference
indifference
to
Heyer’s
standard
medical
comes
from
needs.
the
The
Supreme
deliberate-
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
infliction of pain proscribed by the Eighth Amendment.”
v.
Gamble,
429
U.S.
97,
104
(1976)
(citation
and
wanton
Estelle
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
12
protection
prisoners
receive
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under the Eighth Amendment. 5
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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
is
will
explain,
we
agree
with
Heyer
that
his
evidence
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
5
See, e.g., Youngberg v. Romeo, 457 U.S. 307, 322, (1982)
(Civil detainees “are entitled to more considerate treatment and
conditions of confinement than criminals whose conditions of
confinement are designed to punish.”); Ingraham v. Wright, 430
U.S. 651, 671 n.40 (1977) (“[T]he State does not acquire the
power to punish with which the Eighth Amendment is concerned
until after it has secured a formal adjudication of guilt in
accordance with due process of law.”); Bell v. McAdory, 820 F.3d
880, 882 (7th Cir. 2016) (“States must treat detainees at least
as well as prisoners, and often they must treat detainees better
-- precisely because detainees (whether civil or pretrial
criminal) have not been convicted and therefore must not be
punished.”).
6
In cases involving involuntarily committed psychiatric
patients, claims of inadequate medical care are governed by the
“professional judgment” standard rather than the deliberate
indifference standard.
See Youngberg, 457 U.S. at 323; Patten
v. Nichols, 274 F.3d 829, 838 (4th Cir. 2001). Because we agree
with Heyer that his evidence is sufficient to support a finding
of
deliberate
indifference,
we
need
not
flesh
out
the
differences between the two standards or determine whether the
professional-judgment standard should also be applied to civil
detainees who are confined alongside convicted criminals in a
correctional facility rather than in a psychiatric hospital.
See Brown v. Harris, 240 F.3d 383, 388 (4th Cir. 2001)
(concluding that deliberate-indifference standard applies to
medical-care claims involving pre-trial detainees).
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is
an
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objective
inquiry,
and
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that
the
defendant
acted
with
deliberate indifference to those needs, which is a subjective
inquiry.
See Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008).
A.
In our view, Heyer’s evidence is more than sufficient to
show the existence of serious medical needs.
need”
is
“one
that
has
been
diagnosed
A “serious medical
by
a
physician
as
mandating treatment or one that is so obvious that even a lay
person
would
attention.”
easily
recognize
the
necessity
for
a
doctor’s
Id. at 241 (internal quotation marks omitted).
As we understand his claims, Heyer does not contend that
his deafness, in and of itself, is a serious medical need that
requires treatment.
Instead, he contends that BOP’s failure to
provide ASL interpreters for his medical interactions has led to
constitutionally inadequate treatment for serious medical needs
that have arisen during his confinement.
We agree.
As discussed above, Heyer has suffered multiple seizures
during his confinement, and we have little difficulty concluding
that
seizures
treatment.
are
sufficiently
serious
to
require
medical
See Shreve v. Franklin Cty., 743 F.3d 126, 135 (6th
Cir. 2014) (explaining that seizure suffered by inmate amounted
to “a serious medical need to which indifference would likely
have been a constitutional violation in itself”); cf. Grayson v.
Peed,
195
F.3d
692,
695
(4th
14
Cir.
1999)
(no
evidence
of
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objectively serious medical need in case where detainee was not
“hav[ing] trouble breathing . . . [,] was not bleeding, was not
vomiting or choking, and was not having a seizure”).
And while
suffering these serious medical problems, Heyer was completely
unable
to
communicate
with
medical
staff.
Heyer’s
evidence
establishes, for purposes of these proceedings, that he can only
communicate through ASL.
He cannot read lips, has no ability to
understand speech, and cannot communicate effectively in written
English.
Thus, without an ASL interpreter, Heyer was unable to
explain what happened or describe his symptoms to the medical
staff,
and
he
was
unable
to
understand
instructions from the medical staff.
any
questions
or
Even a lay person could
easily recognize the need for a patient with a serious medical
condition to be able to communicate with medical staff, so a
proper diagnosis can be made, and for the patient to understand
the medical staff’s instructions, so the medical condition can
be properly treated.
BOP does not argue that seizures are not serious, nor does
it
contend
that
the
ability
to
communicate
providers is unimportant to treatment.
with
medical
Instead, BOP, mirroring
the district court’s analysis, argues that Heyer cannot show a
serious medical need because there is no evidence that Heyer
suffered any “adverse medical condition as a result of not being
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provided interpreters during his medical encounters.”
Brief of
Appellee at 44.
We disagree.
BOP’s argument demands more of Heyer than the
case law requires.
An actionable deliberate-indifference claim
does not require proof that the plaintiff suffered an actual
injury.
Instead,
it
is
enough
that
the
defendant’s
actions
exposed the plaintiff to a “substantial risk of serious harm.”
Farmer v. Brennan, 511 U.S. 825, 837 (1994) (emphasis added);
see also Rish v. Johnson, 131 F.3d 1092, 1096 (4th Cir. 1997)
(deliberate-indifference standard requires prisoner to “produce
evidence
of
a
serious
or
significant
physical
or
emotional
injury resulting from the challenged conditions, or demonstrate
a
substantial
prisoner’s
risk
of
unwilling
such
serious
exposure
to
harm
the
resulting
challenged
from
the
conditions”
(citation omitted; emphasis added)); Ball v. LeBlanc, 792 F.3d
584,
593
(5th
Cir.
2015)
(“To
prove
unconstitutional
prison
conditions, inmates need not show that death or serious injury
has already occurred.
substantial
risk
of
They need only show that there is a
serious
harm.”
(citation
and
internal
quotation marks omitted)).
In our view, the facts outlined above are sufficient to
show
that
interactions
harm.
the
absence
exposed
of
Heyer
ASL
to
a
interpreters
substantial
during
risk
of
medical
serious
Heyer’s evidence is thus sufficient, at this stage of the
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proceedings,
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to
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satisfy
objective
the
component
of
the
deliberate-indifference inquiry.
B.
We turn now to the subjective component of the inquiry –
whether BOP acted with deliberate indifference.
“Deliberate indifference is more than mere negligence, but
less than acts or omissions done for the very purpose of causing
harm
or
with
Stansberry,
knowledge
841
F.3d
that
219,
harm
225
will
(4th
result.”
Cir.
quotation marks and alterations omitted).
Scinto
2016)
v.
(internal
A prison official
acts with deliberate indifference if he “knows of and disregards
an excessive risk to [the inmate’s] health or safety.”
511 U.S. at 837.
Farmer,
“Put differently, the plaintiff must show that
the official was aware of facts from which the inference could
be drawn that a substantial risk of serious harm existed and
drew
that
inference.”
Scinto,
841
F.3d
at
225
(internal
quotation marks and alterations omitted).
The district court rejected Heyer’s medical-care claims on
the first prong of the standard, and the court therefore did not
address
whether
deliberate
Heyer’s
indifference.
evidence is insufficient.
evidence
BOP
was
argues,
sufficient
however,
to
establish
that
Heyer’s
In BOP’s view, Heyer presented no
evidence showing that BOP officials “knew that by not providing
Heyer an interpreter during his medical evaluations, . . . he
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was unable to communicate with medical staff to the extent there
existed
a
substantial
risk
Brief of Appellee at 51.
of
serious
harm
to
his
health.”
BOP notes that it provided Heyer with
an inmate interpreter to facilitate Heyer’s communication, and
it
contends
there
communicating
is
through
no
the
evidence
inmate
showing
companion
it
was
knew
that
insufficient.
Again, we disagree.
BOP has been aware of Heyer’s deafness since he arrived at
Butner
in
2008,
and
the
record
establishes
that
Heyer
made
multiple requests for ASL interpreters and repeatedly informed
prison officials of his inability to understand.
Indeed, the
fact that BOP assigned Heyer an inmate companion is itself some
evidence
that
BOP
knew
that
Heyer
could
not
effectively
communicate on his own.
Contrary to BOP’s argument, the decision to provide Heyer
with the inmate companion does not insulate it from a finding of
deliberate indifference.
As we have made clear, the mere fact
that prison officials provide some treatment does not mean they
have provided “constitutionally adequate treatment.”
v.
Johnson,
708
F.3d
520,
526
(4th
Cir.
2013).
De’lonta
While
“a
prisoner does not enjoy a constitutional right to the treatment
of
his
or
her
choice,
the
treatment
a
prison
facility
does
provide must nevertheless be adequate to address the prisoner’s
serious medical need.”
Id. (footnote omitted).
18
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In our view, Heyer’s summary-judgment evidence is more than
sufficient to support a finding that BOP knew that communication
through the inmate companion was inadequate.
As noted above,
the inmate companion assigned to Heyer did not know ASL.
inappropriateness
of
using
an
interpreter
who
did
not
The
speak
Heyer’s language is obvious, and that very obviousness could
support
a
factfinder’s
conclusion
companion was inadequate.
that
BOP
knew
the
inmate
See Farmer, 511 U.S. at 842 (“Whether
a prison official had the requisite knowledge of a substantial
risk is a question of fact subject to demonstration in the usual
ways, including inference from circumstantial evidence, and a
factfinder
may
conclude
that
a
prison
official
knew
of
a
substantial risk from the very fact that the risk was obvious.”
(citation omitted; emphasis added)).
Moreover, Heyer’s evidence shows that BOP officials did in
fact know that the communication through the inmate companion
was inadequate.
Dr. Andres Hernandez, BOP’s psychologist in
charge of Heyer’s treatment, refused to permit the use of the
inmate
companion
“in
treatment services.”
the
formal
J.A. 1276.
provision
of
[CT
Program]
As Dr. Hernandez explained in
his deposition, he found the inmate companion to be “inadequate
to
conduct
interpreters
accurate,
treatment,”
were
reliable
J.A.
1117,
“imperative”
to
understanding,”
19
and
believed
“insure
so
as
that
to
qualified
there
was
“maintain
the
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adequacy of treatment, the effectiveness of treatment.”
1117;
see
also
with
communicate
J.A.
Mr.
1123
Heyer
(Hernandez
without
“cannot
J.A.
meaningfully
interpreters”);
J.A.
1294
(affidavit of another psychologist involved in Heyer’s treatment
stating that “the use of qualified ASL interpreters is necessary
in general for Heyer to progress through the [CT Program]”).
This
premises
evidence
shows
underpinning
BOP’s
knowledge
the
factual
deliberate-indifference
Heyer’s
of
all
claim:
BOP knew that Heyer was deaf and needed ASL interpreters to
communicate;
BOP
knew
communication
was
necessary
effective;
and
BOP
that
knew
“accurate”
for
that
Heyer’s
the
“inadequate” to ensure understanding.
have
been
treatment,
companion
speaking
his
are
views
equally
physical health issues.
specifically
about
the
applicable
and
“reliable”
treatment
inmate
to
companion
be
was
While Dr. Hernandez may
to
Heyer’s
inadequacy
to
the
of
psychiatric
the
treatment
inmate
of
his
From this evidence, a factfinder could
reasonably conclude that BOP was deliberately indifferent, as it
knew that its failure to provide ASL interpreters during Heyer’s
medical interactions created a substantial risk of serious harm
to his health.
See Farmer, 511 U.S. at 837 (A prison official
acts with deliberate indifference if he “knows of and disregards
an excessive risk to inmate health or safety.”); Scinto, 841
F.3d at 226 (explaining that “a prison official’s failure to
20
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respond to an inmate’s known medical needs raises an inference
of deliberate indifference to those needs” (internal quotation
marks and alterations omitted)).
C.
Accordingly, for the reasons outlined above, we conclude
that Heyer’s evidence, when accepted as true, is sufficient to
satisfy
the
objective
and
subjective
deliberate-indifference inquiry.
components
of
the
The district court therefore
erred by granting summary judgment in favor of BOP on Heyer’s
claim
that
BOP
failed
to
provide
him
with
constitutionally
adequate medical care.
IV.
We
contends
turn
now
that,
to
Heyer’s
despite
his
First
Amendment
confinement,
he
claims.
retains
Heyer
a
First
Amendment right to communicate with those outside the prison.
And given the evidence establishing his inability to communicate
in written English, Heyer argues that BOP’s failure to provide
him with access to a videophone improperly restricts his First
Amendment rights under the four-factor analysis set out by the
Supreme Court in Turner v. Safley, 482 U.S. 78 (1987).
In the
alternative, Heyer argues that, even if BOP’s reliance on the
TTY device were adequate, BOP has failed to provide reasonable
access to the TTY device.
A.
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Courts have generally concluded that the First Amendment
rights
retained
by
convicted
prisoners
include
the
communicate with others beyond the prison walls.
right
to
See, e.g.,
Yang v. Missouri Dep’t of Corr., 833 F.3d 890, 894 (8th Cir.
2016) (The rights retained by a convicted prisoner “include the
right
to
subject
communicate
to
with
regulation
persons
that
outside
protects
the
prison
legitimate
walls,
governmental
interests.”); Pope v. Hightower, 101 F.3d 1382, 1385 (11th Cir.
1996)
(concluding
that
Amendment
right
to
Washington
v.
Reno,
(recognizing
that
convicted
communicate
35
F.3d
“persons
prisoners
with
retain
family
1093,
1100
incarcerated
in
and
“First
friends”);
(6th
penal
a
Cir.
1994)
institutions
retain their First Amendment rights to communicate with family
and friends”); Morgan v. LaVallee, 526 F.2d 221, 225 (2d Cir.
1975) (“A prison inmate’s rights to communicate with family and
friends are essentially First Amendment rights subject to § 1983
protection
.
.
.
.”).
As
a
civil
detainee
rather
than
a
convicted prisoner, Heyer’s First Amendment rights are at least
as broad as those retained by convicted prisoners.
BOP does not dispute that Heyer retains rights under the
First Amendment that are implicated by the challenged policies.
Indeed,
protects
friends.”
it
explicitly
an
inmate’s
agrees
right
to
that
communicate
Brief of Appellee at 15.
22
“[t]he
First
with
Amendment
family
and
Instead, BOP contends that
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its refusal to provide Heyer with his communication method of
choice -- a videophone -- did not infringe his First Amendment
rights,
factors.
such
that
there
is
no
occasion
to
apply
the
Turner
BOP alternatively argues that if application of the
Turner factors is required in this case, its refusal to provide
a videophone is nonetheless proper.
B.
In Turner v. Safley, the Supreme Court concluded that a
prison
policy
or
regulation
that
“impinges
on
inmates’
constitutional rights . . . is valid if it is reasonably related
to legitimate penological interests,” 482 U.S. at 89, and the
Court identified four factors to consider when determining the
reasonableness of the policy, id. at 89-91.
Accordingly, as BOP
argues, consideration of the Turner reasonableness factors is
required only if the prison policy “impinges” on Heyer’s First
Amendment rights.
BOP
contends
that
the
record
shows
that
Heyer
can
communicate with those outside the prison through use of the TTY
device, and that Heyer’s First Amendment rights are therefore
satisfied by the access BOP provides to the TTY.
BOP thus
argues that its TTY policy does not impinge on Heyer’s First
Amendment rights, and that Heyer’s demand for a better way to
communicate is not a viable constitutional claim.
23
We disagree.
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BOP’s
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argument
that
Pg: 24 of 43
Heyer
can
effectively
communicate
through the TTY device is based on a highly selective reading of
the record.
keyboard
As previously discussed, the TTY device utilizes a
and
permits
the
transmission
of
written
messages
between TTY users; effective communication over a TTY device
therefore
requires
proficiency
in
evidence,
however,
establishes
that
proficiency
in
English
written English. 7
and
cannot
written
he
has
English.
extremely
communicate
Heyer’s
limited
effectively
in
While BOP points to evidence suggesting that
Heyer might sometimes, under certain circumstances, be able to
communicate effectively through writing, 8 that evidence is not
entitled to the dispositive effect that BOP assigns to it.
The
procedural posture of this case requires us to view the evidence
in the light most favorable to Heyer, which means that we must
7
See Expert Report, J.A. 350 (“Heyer . . . cannot
communicate effectively in written English.”); id., J.A. 372
(Heyer’s “proficiency in English (speech, lip-reading and
reading and writing) is severely limited); id., J.A. 355
(“American
Sign
Language
is
structurally
different
from
English,” and its “lexicon and syntactic structure [are] quite
unlike that of spoken English”); Heyer Deposition, J.A. 267 (“I
will write a note and, usually the person that’s reading it does
not understand what I’ve written because I write in ASL and
their language is English.”); id. (“My sentences are not in
English, so they do not understand what I’m saying.”).
8
For example, Heyer’s expert suggested that written
communication might possibly be effective for Heyer if it
involved
“short
routine,
frequently
repeated
written
communications.” J.A. 378. In addition, Heyer testified in his
deposition that his brother could understand his emails.
J.A.
296.
24
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accept
as
communicate
cannot
Filed: 02/23/2017
true
the
effectively
communicate
Pg: 25 of 43
evidence
showing
through
effectively
written
that
Heyer
English
through
the
and
TTY
cannot
therefore
device.
And
because the evidence establishes that Heyer cannot communicate
effectively through the only means that BOP makes available to
him, we cannot accept BOP’s assertion that its TTY-only policy
does not impinge on Heyer’s First Amendment right to communicate
with those outside the prison.
C.
Given our conclusion that BOP’s policy impinges on Heyer’s
First Amendment rights, we must determine whether that policy
“is reasonably related to legitimate penological interests,” as
required by Turner.
the
reasonableness
“valid,
482 U.S. at 89.
of
rational
the
policy
connection
As explained in Turner,
depends
[exists]
on
(1)
between
whether
the
a
prison
regulation and the legitimate governmental interest put forward
to justify it,” (2) whether “alternative means of exercising the
right
[exist]
that
remain
open
to
prison
inmates,”
(3)
what
“impact accommodation of the asserted constitutional right will
have
on
prison
guards
resources
and
other
inmates,
generally,”
and
25
and
(4)
on
the
whether
allocation
of
there
an
was
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“absence of ready alternatives” to the regulation in question.
Id. at 89-90 (internal quotation marks omitted). 9
1.
We
first
connection
consider
between
the
whether
prison
there
is
regulation
a
“valid,
and
the
governmental interest put forward to justify it.”
(internal quotation marks omitted).
rational
legitimate
Id. at 89
“[A] regulation cannot be
sustained where the logical connection between the regulation
and
the
asserted
goal
is
so
policy arbitrary or irrational.”
BOP
contends
that
its
remote
as
to
render
the
furthers
its
Id. at 89-90.
TTY-only
policy
legitimate interest in maintaining prison security.
According
to BOP, videophones create security issues not presented by the
TTY system, such as the possibility of a video recording of the
9
The Supreme Court in Turner v. Safley was considering
whether a prison policy improperly restricted the First
Amendment rights of a convicted prisoner rather than a civil
detainee. See 482 U.S. 78, 81-84 (1987). Some courts have made
modifications to the Turner factors to reflect the differences
between convicted prisoners and detainees. See, e.g., Brown v.
Phillips, 801 F.3d 849, 853 (7th Cir. 2015) (concluding that in
case involving civil detainee, Turner requires that challenged
policy “must be rationally connected to the state’s interests -here, security and the rehabilitation and treatment of sexually
violent persons”). Because Heyer does not suggest that any such
adjustments should be made in this case and we conclude that his
claims are viable under the Turner factors as originally
formulated, we need not decide whether adjustments should
generally be made in cases involving civil detainees.
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conversation being posted on the Internet.
In addition, BOP
contends that
[w]ith video communications, it is more difficult to
prevent sexually illicit acts from occurring, or
controlling who or what the inmate can see on the
other end of the video monitor (i.e., children or
prior victims). Such calls would likely require
attentive and continuous live monitoring, and even if
staff did observe sexually inappropriate conduct over
the video monitor, the act may be committed before the
staff member has an opportunity to terminate the call
(e.g., indecent exposure to child).
Brief of Appellee at 21-22 (citation omitted).
BOP
also
argues
that
it
has
a
legitimate
interest
in
monitoring all inmate communication and that its TTY-only policy
is rationally related to that interest.
BOP currently monitors
inmate telephone calls through the secure BOP Inmate Telephone
System, and BOP contends that the system cannot accommodate a
videophone “without the development and funding of a separate
and
secure
Information
Technology
infrastructure.”
Brief
of
Appellee at 21.
There is no doubt that BOP has a legitimate interest in
maintaining the security of its facilities and in protecting the
public
from
further
criminal
acts
by
inmates
and
detainees.
Nonetheless, there are reasons that a factfinder might question
the legitimacy of the particular security risks asserted in this
case.
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As to BOP’s insistence that videophone conversations must
go through its secure Inmate Telephone System, we note that the
TTY system currently in place operates on an unsecured line in a
private staff office.
Given BOP’s current willingness to let
Heyer place TTY calls through an unsecured line unconnected to
the Inmate Telephone System, a factfinder could question BOP’s
sudden insistence that videophone calls be part of the System.
And
while
BOP
argues
that
maintaining
the
security
of
videophone conversations would require “attentive and continuous
live
monitoring,”
Brief
of
Appellee
at
21,
the
current
system already requires continuous staff monitoring.
TTY
The TTY
device is in a private office with a computer and other staff
equipment,
and
a
prison
official
Heyer’s use of the TTY device.
is
always
present
during
Because the monitoring of a
videophone conversation would be no more demanding of staff time
than the monitoring of the TTY conversations that is already
being done, the factfinder could question whether a videophone
system would in fact present the difficulties asserted by BOP.
Nonetheless,
we
recognize
that
a
videophone
conversation
presents certain risks not present with TTY conversations, such
as the possibility of a video of the conversation being posted
on the Internet or the possibility that an inmate might expose
himself to the person on the other end of the conversation.
A
ban on videophones prevents these situations from occurring, and
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thus the ban bears at least some connection to BOP’s legitimate
interest in maintaining security and protecting the public.
we
will
other
explain,
Turner
however,
factors
as
questions
to
the
of
fact
arise
under
reasonableness
of
As
the
BOP’s
videophone ban.
See Jehovah v. Clarke, 798 F.3d 169, 178-79
(4th
(reversing
Cir.
2015)
grant
of
summary
judgment
under
Turner even though challenged policy bore some connection to the
penological interests asserted by the defendants).
2.
The second Turner factor requires us to consider whether
Heyer
has
right.
alternate
means
of
exercising
the
constitutional
“Where other avenues remain available for the exercise
of the asserted right, courts should be particularly conscious
of
the
measure
of
judicial
deference
owed
to
corrections
officials in gauging the validity of the regulation.”
482
U.S.
at
alteration
90
(citation,
omitted).
BOP
internal
contends
quotation
that
Turner,
marks,
alternate
means
and
of
communicating with those outside Butner are available to Heyer -
specifically,
visits.
TTY,
email,
written
letters,
and
in-person
Because other means of communication remain available
to Heyer, BOP contends the ban on videophones is reasonable.
We
disagree.
With
the
exception
of
in-person
visitation,
all
of
the
alternate means of communication identified by BOP involve the
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use of written English.
As we have already explained, however,
the
evidence
record
contains
establishing
that
Heyer’s
proficiency with English is severely limited and that he cannot
effectively
communicate
in
written
English.
Although
Heyer
presumably would be able to communicate through ASL with those
who
visit
him
at
Butner,
the
availability
of
in-person
visitation is of little help in emergencies or other situations
where there is a need for immediate contact.
Accordingly, we
believe that Heyer’s evidence, which must be accepted as true,
would permit a factfinder to conclude that no other effective
means of communication are available to Heyer.
3.
The
third
factor
we
must
consider
under
Turner
is
the
effect that “accommodation of the asserted constitutional right
will have on guards and other inmates, and on the allocation of
prison resources generally.”
Id. at 90.
“When accommodation of
an asserted right will have a significant ‘ripple effect’ on
fellow inmates or on prison staff, courts should be particularly
deferential
to
officials.”
the
informed
discretion
of
corrections
Id.
BOP contends the effect of accommodating Heyer’s request
would
be
significant.
BOP
claims
it
would
be
required
to
“develop and fund a separate and secure IT infrastructure in
order to monitor and record each videophone call on an agency30
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wide basis,” Brief of Appellee at 24 (emphasis added), and that
it would cost nearly $2 million to install videophones at all of
its 119 institutions.
Moreover, monitoring the substance of a
videophone conversation would require the services of an ASL
interpreter, which further increases the costs to BOP.
Again,
however,
Heyer’s
evidence
precludes
us
from
concluding that the effect of accommodating Heyer’s needs would
be so great that the videophone ban is reasonable as a matter of
law.
As previously noted, the TTY device currently used by
Heyer operates through an unsecured telephone line that is not
part
of
the
Inmate
Telephone
System,
and
BOP
is
apparently
satisfied that the risks associated with the use of unsecured
line are manageable.
fact
about
BOP’s
This evidence thus creates questions of
assertion
that
a
videophone
would
require
creation of a new, secure IT infrastructure.
BOP
also
implemented
basis.
on
insists
what
that
would
be
any
a
accommodation
very
expensive,
should
be
system-wide
However, nothing in the record indicates why a system-
wide solution would be required, and Heyer’s evidence shows that
a videophone could be installed in Butner (presumably using the
same
unsecured
line
used
by
the
31
TTY
device)
at
de
minimis
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expense
to
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government. 10
the
conversations
Pg: 32 of 43
would
require
And
live
while
monitoring
the
by
videophone
prison
staff,
that should not be a significant additional burden, as prison
staff already monitor Heyer’s TTY calls.
In light of this evidence, a factfinder could conclude that
accommodating Heyer’s needs would have minimal effect on guards
or other inmates or on the prison’s allocation of resources,
thus
raising
questions
about
the
reasonableness
of
the
videophone ban.
4.
Finally, Turner requires us to consider whether there are
“ready alternatives” to the challenged policy.
at 90.
Turner, 482 U.S.
As the Court explained, “the existence of obvious, easy
alternatives
may
be
evidence
that
the
regulation
is
not
reasonable, but is an exaggerated response to prison concerns.”
Id.
(internal
cautioned
lower
equivalent
Court
quotation
of
held
courts
the
that
marks
not
“least
“if
an
omitted).
to
treat
restrictive
inmate
Although
this
factor
alternative
claimant
the
can
Court
as
the
test,”
the
point
to
an
alternative that fully accommodates the prisoner’s rights at de
minimis
cost
to
valid
penological
10
interests,
a
court
may
Heyer’s evidence indicates that BOP could obtain the
necessary equipment and software for “no cost or modest cost.”
J.A. 663. Even under BOP’s estimate, establishing a stand-alone
videophone system at Butner would cost no more than $2500.
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consider that as evidence that the regulation does not satisfy
the reasonable relationship standard.”
quotation marks omitted).
Id. at 90-91 (internal
In this case, there is significant
evidence of ready alternatives to BOP’s ban on videophones.
As
presents
Heyer
notes,
security
the
risks
--
regular
for
inmate
example,
telephone
inmates
can
system
use
the
phone to direct or commit crimes, and the call recipient can
record and post the call on the Internet.
have
not
driven
BOP
to
ban
telephones;
Those risks, however,
instead,
it
handles
individual problems as they arise, suspending usage rights for
offending inmates and taking other appropriate action.
in
the
record
suggests
that
the
security
risks
Nothing
posed
by
videophones are so qualitatively different that they can only be
managed by banning videophones.
Indeed, the record shows that
many of the security risks associated with a videophone could be
minimized by simply setting it up in a secure office, as the TTY
device is.
Access to the videophone could be restricted to deaf
inmates, and any abuses of the system could be handled on a
case-by-case basis, as they are with the inmate phone system.
Moreover, Heyer’s evidence establishes that videophones are
in many ways more secure than TTY devices.
requires
the
user
to
have
physical
access
The TTY device
to
the
equipment,
while the equipment for a videophone system -- which is little
more than a camera connected to a desktop computer -- can be set
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up in a way that the detainee has no access to it.
Basic
software packages permit videophones to be password-protected to
prohibit
unauthorized
protected.
access;
TTY
devices
are
not
password-
Moreover, videophone conversations can be digitally
recorded, encrypted, and stored electronically.
By contrast,
the record of TTY conversations is printed out by the device
itself, thus making it possible for an inmate to grab the printout and destroy the record of his conversation.
Given Heyer’s evidence of the minimal cost of a videophone
and the ease with which security concerns could be mitigated, we
believe that a factfinder could reasonably conclude that BOP’s
refusal to provide a videophone is an exaggerated response to
the perceived security concerns.
erred
by
Amendment
granting
summary
videophone
The district court therefore
judgment
claim.
See
to
BOP
Jehovah,
on
Heyer’s
798
F.3d
First
at
179
(reversing grant of summary judgment because jury could find
prisoner’s proposed alternatives to be so “obvious and easy” as
to show that total ban on wine was an “exaggerated response”
(internal quotation marks omitted)).
D.
Independent of his videophone claim, Heyer also claims that
BOP
violated
his
First
Amendment
rights
restricting his access to the TTY device.
by
unreasonably
The district court
summarily rejected that claim, concluding that Heyer had proved
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most
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isolated
instances
Pg: 35 of 43
of
being
immediately upon [his] request.”
unable
J.A. 145.
to
use
the
TTY
We agree with Heyer
that the record precludes a grant of summary judgment on this
claim.
Heyer
equivalent
filed
of
purposes.”
Shipping
an
Fuel
783
marks
verified
opposing
World
Co.,
quotation
a
complaint,
affidavit
Servs.
F.3d
507,
omitted).
In
for
Trading,
516
his
which
(4th
is
the
summary
DMCC
v.
Cir.
2015)
complaint,
he
“the
judgment
Hebei
Prince
(internal
states
that
access to the TTY is “regularly restricted or denied,” J.A. 40,
and
that
prison
staff
“consistently
den[ies
altogether without justification,” J.A. 41.
him]
access
If the few trained
staff members “are away for training or on vacation,” Heyer is
“unable to access the TTY at all.”
J.A. 41.
In his deposition,
Heyer confirmed the difficulties in getting access to the TTY,
with
it
sometimes
taking
days
before
access
is
granted,
and
staff sometimes failing to follow up on the request at all.
Heyer also testified that he has never been able to use the TTY
on nights or weekends.
While we do not suggest that the Constitution requires deaf
inmates to have precisely the same access to TTY devices other
inmates
have
to
telephones,
we
believe
that
this
evidence,
accepted as true, shows a sufficiently serious interference with
Heyer’s rights to communicate beyond Butner’s walls to support a
35
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First Amendment claim.
prisoner’s
right
to
Pg: 36 of 43
Cf. Washington, 35 F.3d at 1100 (“[A]
telephone
access
is
subject
to
rational
limitations in the face of legitimate security interests of the
penal institution.” (internal quotation marks omitted)).
As
to
the
Turner
factors,
we
believe
preclude the grant of summary judgment.
complaint
that
access
to
the
TTY
was
questions
of
fact
Heyer alleges in his
often
denied
without
justification, and a factfinder could certainly conclude that
arbitrary
interference
constitutional
with
rights
is
a
not
detainee’s
exercise
of
his
“reasonably
related”
to
any
“legitimate penological interests.”
cf.
Benzel
v.
Grammer,
869
F.2d
Turner, 482 U.S. at 89;
1105,
1108
(8th
Cir.
1989)
(“Although in some instances prison inmates may have a right to
use the telephone for communication with relatives and friends,
prison officials may restrict that right in a reasonable manner
. . . .”).
Moreover, the record establishes the availability of
ready alternatives to BOP’s current inconsistent and inadequate
approach to access, including the largely cost-free option of
training more staff members on the use of the TTY, so as to give
Heyer more access to the TTY on nights and weekends.
Because
there
to
are
questions
of
fact
on
issues
relevant
the
application of the Turner factors, we conclude that the district
court erred by granting summary judgment against Heyer’s claim
that he was unreasonably denied access to the TTY device.
36
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Pg: 37 of 43
V.
The
district
court
rejected
Heyer’s
remaining
claims
by
focusing on, at least in part, BOP’s post-litigation conduct and
assertions that it would provide the relief Heyer was seeking.
See J.A. 137 (rejecting Fifth Amendment claim (Count II) based
on failure to provide ASL interpreters for the mental health
treatment provided through the CT Program because BOP stated
that it would provide interpreter services for future individual
therapy sessions); J.A. 143-44 (dismissing Fifth Amendment claim
(Count VII) based on BOP’s failure to provide visual alarms and
other
items
necessary
to
alert
Heyer
to
emergencies
because
BOP’s post-litigation safety improvements were sufficient); J.A.
145-46
(dismissing
as
moot
claims
(Counts
and
X)
IX
Heyer’s
based
RFRA
on
and
BOP’s
First
failure
Amendment
to
provide
interpreters for religious services because BOP stated that it
would
begin
request).
providing
interpreters
for
religious
services
on
Heyer argues on appeal that the district court erred
by relying on BOP’s voluntary, post-litigation actions to reject
his claims.
We agree.
A.
The district court dismissed Counts IX and X as moot based
on BOP’s stated intent to provide the requested relief in the
future.
the
The court explained that BOP’s voluntary cessation of
challenged
action
mooted
37
the
claims
because
BOP
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“unequivocally
state[s]
that
Pg: 38 of 43
[Heyer]
will
be
provided,
upon
request, with a qualified interpreter for religious ceremonies
and programs,” such that “there is no reasonable expectation
that the alleged violation will recur and [BOP’s] solution will
completely
and
irrevocably
eradicate
any
burden
the
lack
of
interpreters formerly placed on [Heyer’s] exercise of religion.”
J.A. 146 (internal quotation marks omitted).
“It
is
of
cessation
well
a
established
challenged
that
practice
a
defendant’s voluntary
moots
an
action
only
if
subsequent events made it absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to recur.”
Wall
v.
Wade,
quotation
741
marks
F.3d
492,
(4th
“[W]hen
omitted).
497
a
Cir.
2014)
defendant
(internal
retains
the
authority and capacity to repeat an alleged harm, a plaintiff’s
claims should not be dismissed as moot.”
Id.
BOP bears the
“heavy burden” of showing that “the challenged conduct cannot
reasonably
be
expected
quotation marks omitted).
to
start
up
again.”
Id.
(internal
“[B]ald assertions of a defendant --
whether governmental or private -- that it will not resume a
challenged policy fail to satisfy any burden of showing that a
claim is moot.”
Id. at 498.
When dismissing these counts, the district court relied on
BOP’s assurance of interpreters contained in a 2014 affidavit
from a BOP chaplain which states that “BOP will provide . . .
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Pg: 39 of 43
inmates with a qualified interpreter . . . if necessary for
effective
communication
programs.”
J.A. 343.
to
the
support
policy
or
religious
ceremonies
or
BOP contends this assurance is sufficient
district
practice
during
.
.
court’s
ruling
.
prevents
that
because
deaf
BOP
has
inmates
“no
from
receiving interpreters for the purpose of attending religious
programming.”
Brief of Appellee at 60.
Thus, in BOP’s view,
the chaplain’s assurance that interpreters would be provided is
simply a “recommit[ment] to a preexisting practice of providing
interpreters.”
Id. at 61.
Regardless
of
We disagree.
whether
BOP
has
previously
provided
interpreters for other deaf inmates, the record here establishes
(for summary-judgment purposes) that BOP has not provided Heyer
with interpreters for religious services.
See J.A. 403, 408.
Accordingly, given our standard of review and BOP’s burden of
proof, the chaplain’s affidavit cannot be viewed as a statement
of current policy, but must instead be understood as a midlitigation
change
of
chaplain’s
statement
course.
does
Viewed
not
through
support
decision to dismiss these claims as moot.
the
that
lens,
district
the
court’s
Even if we ignore the
equivocation inherent in the promise to provide interpreters “if
necessary,” the statement amounts to little more than a “bald
assertion[]” of future compliance, which is insufficient to meet
BOP’s burden.
Wall, 741 F.3d at 498.
39
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Pg: 40 of 43
Moreover, as previously discussed, BOP in 2012 announced
that it would provide ASL interpreters for Heyer’s scheduled
medical appointments.
Since that time, however, Heyer has had
at least two scheduled medical appointments where no interpreter
was
provided.
already
failed
Because
to
live
the
up
record
to
establishes
its
promises
that
BOP
has
regarding
the
provision of ASL interpreters, the record does not require us to
conclude
that
“the
challenged
expected to start up again.”
marks omitted).
conduct
cannot
reasonably
be
Id. at 497 (internal quotation
Under these circumstances, the district court
erred by concluding that BOP’s assertion that it would begin
providing interpreters rendered Counts IX and X moot.
B.
In Count VII, Heyer challenged BOP’s failure to provide
visual alarms and other items, such as pagers, vibrating beds,
or vibrating watches, necessary to alert Heyer to emergencies.
After noting in its factual summary that BOP in 2014 (almost
three years after the commencement of this action) had installed
a strobe light in the cell to which Heyer was assigned, see J.A.
128, the district court granted summary judgment against the
claim because Heyer was “seek[ing] more safety measures than
those [BOP has] implemented rather than arguing that [BOP has]
failed to provide [him] with any safety measures at all.”
143.
40
J.A.
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Pg: 41 of 43
Although BOP did recently install a strobe light in Heyer’s
cell, the mere fact that BOP has taken some action does not mean
that
the
action
is
constitutionally
De’lonta, 708 F.3d at 526.
sufficient.
See,
e.g.,
Indeed, Heyer presented evidence
showing that the strobe light was inadequate to alert him to
emergencies, see J.A. 496, but the district court nonetheless
appears to have assumed that the strobe light was an adequate
response
to
Heyer’s
safety
needs.
Moreover,
BOP
cannot
guarantee that Heyer will always be assigned to one of the four
cells where the strobe lights were installed, 11 and Heyer has
presented
other
evidence
existing
emergencies.
challenging
mechanisms
Under
these
for
the
adequacy
ensuring
of
Heyer’s
circumstances,
the
the
prison’s
awareness
district
of
court
erred by granting summary judgment in favor of BOP on Count VII.
C.
In Count II, Heyer asserted a Fifth Amendment claim based
on BOP’s failure to provide ASL interpreters for the mentalhealth treatment provided through the CT Program.
The district
court assumed that Heyer had a protected liberty interest in
11
In an affidavit filed with BOP’s summary-judgment
materials, the manager of the prison unit where Heyer is
assigned stated that Heyer would remain in one of the four cells
“[a]bsent any exigent circumstances.”
J.A. 216.
Butner’s
warden, however, stated in his deposition that regular rotation
of inmates to different cells is a “good correctional practice”
that he would not rule out implementing in the future.
J.A.
707.
41
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receiving the treatment.
Pg: 42 of 43
The court nonetheless granted summary
judgment against the claim, observing that BOP had agreed to
provide
ASL
interpreters
for
Heyer’s
participation
in
most
aspects of the CT Program and concluding that the denial of
interpreters
for
the
first
few
months
after
Heyer
began
participating in the CT Program did not amount to a cognizable
constitutional injury.
Even
if
we
See J.A. 137.
accept
the
district
court’s
conclusion
that
BOP’s initial failure to provide interpreters is not significant
enough, on its own, to establish a constitutional violation,
Heyer’s claim is not concerned with seeking damages for past
constitutional
wrongs.
that,
the
because
Instead,
length
of
his
Heyer
seeks
confinement
a
is
court
ruling
dependent
in
large part on BOP’s assessment of his mental health, BOP is
constitutionally obliged to provide interpreters for all aspects
of
the
mental-health
detainees,
provide
and
the
he
also
necessary
treatment
seeks
an
it
offers
injunction
interpreters.
BOP’s
to
Adam
ordering
Walsh
BOP
to
post-litigation
decision to provide interpreters for some aspects of Heyer’s
treatment clearly provides no basis for rejecting Heyer’s claim
on the merits.
Accordingly, we conclude that the district court
erred by granting summary judgment in favor of BOP on Count II.
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VI.
To
summarize,
we
conclude
that
Heyer
has
presented
sufficient evidence to preclude summary judgment in favor of BOP
on Heyer’s medical-treatment claims (Counts IV and VI), safeenvironment claim (Count VII), and videophone- and TTY-related
First Amendment claims (Count VIII).
We therefore vacate the
district court’s order granting summary judgment in favor of BOP
as to those claims, and we remand those claims for trial.
As to Counts II, IX, and X, we conclude that the district
court
erred
by
giving
dispositive
effect
to
BOP’s
post-
litigation assurances that it would provide the ASL interpreters
Heyer requested.
We therefore vacate the district court’s order
granting
judgment
summary
in
favor
dismissing Counts IX and X as moot.
of
BOP
on
Count
II
and
On remand, the district
court may re-evaluate the merits of these claims in light of the
evidence presented by the parties, but the court may not give
dispositive
effect
to
BOP’s
assurances
that
qualified
interpreters will be provided.
Finally, because Heyer does not challenge it on appeal, we
affirm the district court’s dismissal of Count III.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
43
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