Heyer v. U.S. Bureau of Prisons

• Court: U.S. District Court — Eastern District of North Carolina
• Writing for the Court: JAMES C. DEVER III Chief United States District Judge
• Decision Date: 31 March 2015
• Docket Number: No. 5:11-CT-3118-D,5:11-CT-3118-D
• Citation: Heyer v. U.S. Bureau of Prisons, No. 5:11-CT-3118-D (E.D. N.C. Mar 31, 2015)
• Parties: THOMAS HEYER and ROBERT PAUL BOYD, Plaintiffs, v. UNITED STATES BUREAU OF PRISONS, et al., Defendants.

THOMAS HEYER and ROBERT PAUL BOYD, Plaintiffs, v. UNITED STATES BUREAU OF PRISONS, et al., Defendants.

No. 5:11-CT-3118-D

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION

March 31, 2015

ORDER

Thomas Heyer and Robert Paul Boyd are in the custody of the Bureau of Prisons pursuant to 18 U.S.C. § 4248. Each has been designated a sexually dangerous person. Plaintiffs filed this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) [D.E. 1]. On April 11, 2012, plaintiffs filed an amended complaint [D.E. 24].

On March 11, 2013, the court granted in part defendants' motion to dismiss, dismissing counts one and five of the amended complaint, and denied without prejudice the parties' motions for summary judgment. See Heyer v. U.S. Bureau of Prisons, No. 5:11 -CT-3118-D, 2013 WL 943406 (E.D.N.C. Mar. 11, 2013) (unpublished). On September 23, 2013, the court denied defendants' motion to stay and allowed an extension of time to complete discovery and to file dispositive motions [D.E. 70]. The parties thereafter sought and obtained additional extensions of time to complete discovery and file motions [D.E. 94-95, 99-102, 107, 120].

On August 21, 2014, defendants filed a second motion to dismiss or for summary judgment [D.E. 111]. Because defendants attached materials that are outside the scope of the pleadings, the court construes the motion as requesting summary judgment. See Fed. R. Civ. P. 12(d). On October14, 2014, plaintiffs responded in opposition to the motion for summary judgment [D.E. 124]. On October 28, 2014, plaintiffs moved for partial summary judgment on counts two, four, six, and eight of the amended complaint [D.E. 127]. On November 18, 2014, defendants responded in opposition to plaintiffs' motion for partial summary judgment [D.E. 130]. The parties also have filed motions to seal certain exhibits and documents [D.E. 123, 132, 135, 138, 140], and defendants request leave of court to conduct further audiology testing on Boyd [D.E. 134]. As explained below, the court grants in part defendants' motion for summary judgment, denies plaintiffs' motion for partial summary judgment, and dismisses the remaining counts as moot.

I.

Plaintiffs Thomas Heyer ("Heyer") and Robert Paul Boyd ("Boyd") have been civilly committed to the custody of the Attorney General as sexually dangerous persons pursuant to 18 U.S.C. § 4248 and are confined at the Federal Correctional Institution in Butner, North Carolina ("Butner"), in the Commitment and Treatment Program ("CTP"). Am. Compl. [D.E. 24] ¶¶ 1-3; see Order, United States v. Boyd, No. 5:08-HC-2061-D (E.D.N.C. Jan. 27, 2012), [D.E. 66], aff'd, 537 F. App'x 234 (4th Cir. 2013) (per curiam) (unpublished); Order, United States v. Heyer, No. 5:08-HC-2183-BO (E.D.N.C. July 9, 2012), [D.E. 81], aff'd, 740 F.3d 284 (4th Cir. 2014).

Plaintiffs are deaf. Am. Compl. ¶¶ 7, 11. Heyer has been deaf since birth, and his native language is American Sign Language ("ASL"). Id. ¶¶ 7-8. "Heyer's ability to read lips is limited," id. ¶ 9, and his "English reading and writing skills are much lower than average." Id. ¶ 10; see Heyer Decl. [D.E. 124-11] ¶ 1; Pls.' Ex. A [D.E. 122] 9-10 (audiology report). Heyer can communicate with others through written notes, but "usually the person that's reading it does not understand what [Heyer has] written because [he] write[s] in ASL and their language is English." Heyer Dep. [D.E. 112-4] 8 (deposition page 31). In October 2008, while Heyer was still serving his criminal sentence,the Bureau of Prisons ("BOP") transferred him to Butner. Willis Decl. [D.E. 112-2] ¶ 9. On December 18, 2008, the United States filed a certificate pursuant to 18 U.S.C. § 4848(a) seeking Heyer's civil commitment as a sexually dangerous person. Id. ¶ 10; see § 4248(a) Certificate, United States v. Heyer, No. 5:08-HC-2183-BO (E.D.N.C. Dec. 18, 2008), [D.E. 1]. On July 8, 2012, after Heyer's commitment hearing, the court committed Heyer to the custody of the Attorney General pursuant to 18 U.S.C. § 4248(d). Order, United States v. Heyer, No. 5:08-HC-2183-BO (E.D.N.C. July 9, 2012), [D.E. 81], aff'd, 740 F.3d 284 (4th Cir. 2014); see Willis Decl. [D.E. 112-2] ¶ 12. Heyer entered the CTP that same month. Heyer Decl. [D.E. 124-11] ¶ 7. The CTP treatment team, however, did not include Heyer in any formal treatment until they secured an ASL interpreter. As the CTP treatment director acknowledges, the treatment team "cannot meaningfully communicate with Mr. Heyer without interpreters." Hernandez Dep. [D.E. 128-4] 3-4 (deposition pages 173-74); see Pls.' Ex. T [D.E. 122-9] (August 2, 2012 email); Steinour Dep. [D.E. 124-19] 7-9 (deposition pages 176-78).

Boyd "has been profoundly deaf since 1975, when he lost his hearing as a result of his military service." Am. Compl. ¶ 11; see Boyd Decl. [D.E. 124-12] ¶ 1. Boyd can communicate with others verbally by speaking to them and reading their lips, and by writing and using sign language. Boyd Dep. [D.E. 112-3] 22, 24 (deposition pages 68, 71); see Boyd Decl. [D.E. 124-12] ¶ 3; Pls.' Ex. A [D.E. 122] 3-5 (audiology report); cf. Am. Compl. ¶¶ 12-13 (alleging that Boyd uses ASL to communicate and his ability to read lips is limited). In March 2008, while Boyd was still serving his criminal sentence, the BOP transferred Boyd to Butner. Willis Decl. [D.E. 112-2] ¶ 4. On April 30, 2008, the United States filed a certificate pursuant to 18 U.S.C. § 4848(a) in this district seeking Boyd's civil commitment as a sexually dangerous person. Id. ¶ 5; see § 4248(a) Certificate, United States v. Boyd, No. 5:08-HC-2061-D (E.D.N.C. Apr. 30, 2008), [D.E. 1]. On January 27,2012, the court committed Boyd to the custody of the Attorney General pursuant to 18 U.S.C. § 4248(d). Order, United States v. Boyd, No. 5:08-HC-2061-D (E.D.N.C. Jan. 27, 2012), [D.E. 66], aff'd, 537 F. App'x 234 (4th Cir. 2013) (per curiam) (unpublished); see Willis Decl. [D.E. 112-2] ¶ 7. Boyd entered the CTP in approximately February 2012. Boyd Decl. [D.E. 124-12] ¶ 6.¹

Plaintiffs allege that defendants have failed or refused to provide, inter alia. (1) qualified ASL interpreters or other appropriate auxiliary aids for plaintiffs' treatment program under section 4248, medical appointments, disciplinary proceedings, vocational, educational, and religious programs; (2) appropriate methods of non-aural notification of emergencies or other important events or announcements; and (3) equal and consistent access to telecommunications devices that would permit them to communicate with anyone outside of Butner. Am. Compl. ¶¶ 33, 36-62, 64-68. Plaintiffs assert that defendants' failure to implement such accommodations discriminates against plaintiffs because of their disabilities and violates several federal laws and the Constitution. Id. ¶¶ 79-140. Plaintiffs also assert that the conditions at Butner have adversely affected their ability to engage in religious activities, in violation of the Religious Freedom Restoration Act and the First Amendment. Id. ¶¶ 64, 141-54. Plaintiffs seek declaratory relief, injunctive relief, and attorneys' fees. Id. 31-32.

A.

Heyer and Boyd made multiple requests for ASL interpreters beginning in 2008. Heyer Dep. [D.E. 124-9] 5-12, 19-21 (deposition pages 50-57,109-11); Boyd Dep. [D.E. 124-10] 9-11 (deposition pages 78-80); Heyer Decl. [D.E. 124-11] ¶ 3; Boyd Decl. [D.E. 124-12] ¶ 4. InSeptember 2012, Butner entered into a contract with a third party to provide certified ASL interpreters to Boyd and Heyer for group therapy sessions, morning community meetings with all participating members of the CTP, and Multidisciplinary Treatment Team meetings. See Malterer Decl. [D.E. 112-6] ¶¶ 5-6, 8-11; see also Heyer Dep. [D.E. 112-4] 19 (deposition page 133); Pls.' Exs. U [D.E. 124-21], Pls.' Ex. BB [D.E. 124-28].² Plaintiffs contend that "[e]ven with interpreters, [they] sometimes feel [they] cannot understand what is being communicated in the CTP programs due to the speed at which the hearing inmates and CTP staff speak." Heyer Decl. [D.E. 124-11] ¶ 8; Boyd Decl. [D.E. 124-12] ¶ 7. Heyer also believes (upon information from Boyd and another CTP inmate) that the interpreters "may not fully understand [his] signing, and therefore may not effectively relay [his] communications to CTP staff." Heyer Decl. [D.E. 124-11] ¶ 9.

In February 2013, Butner increased its contracted interpreter service to Heyer, providing him with an ASL interpreter for weekly individual therapy sessions. Malterer Decl. [D.E. 112-6] ¶ 7. Although Boyd does not receive individual therapy as frequently as Heyer, Butner will provide him with an ASL interpreter for individual therapy sessions upon his request. Malterer Decl. [D.E. 112-6] ¶ 13; see Boyd Dep. [D.E. 112-3] 41 (deposition page 173); but see Boyd Decl. [D.E. 124-12] ¶ 9.³ The parties dispute whether Boyd has ever requested an interpreter for individual therapy, or hasexpressed any communication difficulties to his therapist when there is no interpreter present for their individual therapy sessions. Compare Malterer Decl. [D.E. 112-6] ¶ 13, and Boyd Dep. [D.E. 112-3] 42 (deposition page 174), with Boyd Decl. [D.E. 124-12] ¶ 9. On one occasion, Boyd was interviewed "[w]ith great difficulty" by another psychiatrist to determine whether he might be eligible for discharge from the CTP. Boyd Dep. [D.E. 112-3] 40 (deposition page 172). Boyd had no advance notice of the meeting and did not request an interpreter during the meeting. Id. 41 (deposition page 173).

Butner provides plaintiffs with additional auxiliary aids. Since at least 2010, Heyer has been assigned an inmate companion ("ICP") "to assist in [his] everyday needs and functioning." Willis Decl. [D.E. 112-2] ¶ 26; see Heyer Dep. [D.E. 112-4] 10 (deposition page 97); Heyer Decl. [D.E. 124-11] ¶¶ 5-6. ICPs are not certified ASL interpreters. See Pls.' Ex. B [D.E. 124-2] 27-30 (Cokely Report pages 25-28); Pls.' Ex....