Heyer v. U.S. Bureau of Prisons

• Decision Date: 23 February 2017
• Docket Number: No. 15-6826,15-6826
• Parties: 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.
• Court: U.S. Court of Appeals — Fourth Circuit

849 F.3d 202

Thomas HEYER, Plaintiff-Appellant,andRobert 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.

No. 15-6826

United States Court of Appeals, Fourth Circuit.

Argued: October 26, 2016

Decided: February 23, 2017

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.

Before MOTZ, TRAXLER, and FLOYD, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion. Judge Traxler wrote the opinion, in which Judge Motz and Judge Floyd joined.

TRAXLER, Circuit Judge:

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

I.

A.

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.

B.

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 24-hour, 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.

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. 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...