Matherly v. Andrews, 060817 FED4, 16-6473

Docket Nº:16-6473
Opinion Judge:DIAZ, Circuit Judge:
Party Name:THOMAS SHANE MATHERLY, Plaintiff - Appellant, v. J.F. ANDREWS; DEBORAH A. GONZALES; CANDICE GREGORY; CHARLES SAMUELS; KENNETH R. MCKOY; KAREN STEINOUR, Defendants - Appellees.
Attorney: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. John H. Culver, III, K&L GATES LLP, Charlotte, North Carolina, for Appellant. John Stuart Br...
Judge Panel:Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.
Case Date:June 08, 2017
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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THOMAS SHANE MATHERLY, Plaintiff - Appellant,

v.

J.F. ANDREWS; DEBORAH A. GONZALES; CANDICE GREGORY; CHARLES SAMUELS; KENNETH R. MCKOY; KAREN STEINOUR, Defendants - Appellees.

No. 16-6473

United States Court of Appeals, Fourth Circuit

June 8, 2017

Argued: March 21, 2017

Appeal 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)

ARGUED:

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.

ON BRIEF:

John H. Culver, III, K&L GATES LLP, Charlotte, North Carolina, for Appellant.

John Stuart Bruce, Acting United States Attorney, Matthew L. Fesak, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellees.

Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.

DIAZ, Circuit Judge:

Pursuant 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.

While 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.

I.

A.

We 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 "FLSA").

With 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.

Matherly 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.

Prisoners "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." J.A. 29.

As to 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.

Matherly 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.

With 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 minimum wage.

B.

The 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.

Discovery 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.

With 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.

In her 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...

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