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Media Alerts - Heyer v. U.S. Bureau of Prisons -- Fourth Circuit
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March 24, 2017
  Heyer v. U.S. Bureau of Prisons -- Fourth Circuit
No ASL Interpreter, No Videophone: Deaf Prisoner Wins First and Fifth Amendment Claims

Areas of Law: First Amendment, Fifth Amendment

Issue Presented: Whether the district court erred in granting summary judgment to the defendant on the plaintiff's Fifth Amendment claims for failure to provide ASL interpreters for medical appointments and the mental health treatment in the Commitment and Treatment Program and on the plaintiff's First Amendment claim for failure to provide access to a videophone.

Brief Summary: The United States Court of Appeals for the Fourth Circuit held that the district court erred in granting summary judgment in favor of the defendant on the plaintiff's First and Fifth Amendment claims. First, the defendant's failure to provide ASL interpreters for the plaintiff's medical appointments amounted to deliberate indifference to his medical needs in violation of the Fifth Amendment. Second, the defendant's post-litigation decision to provide interpreters for some aspects of Heyer's treatment in the Commitment and Treatment Program provides no basis for rejecting Heyer's Fifth Amendment claim on the merits. Third, the defendant's failure to provide the plaintiff with access to a videophone improperly restricts his First Amendment rights to communicate with those outside the prison. Therefore, the Fourth Circuit vacated the district court's order in part and remanded for further proceedings.

Extended Summary: Thomas Heyer ("Heyer") is a deaf individual, who communicates primarily through American Sign Language ("ASL") and has extremely limited proficiency in spoken or written English. Heyer was previously convicted of possessing child pornography. In December 2008, the government filed a petition seeking to detain Heyer under the Adam Walsh Child Protection and Safety Act (the "Adam Walsh Act"). Since the filing, Heyer has remained in civil custody at the federal correctional institution in Butner, North Carolina. After a hearing on the petition in March 2012, the district court ordered Heyer detained as a sexually dangerous person.

Under 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). Adam Walsh Act detainees at Butner are expected to participate in the "Commitment and Treatment Program" (the "CT Program"), which includes mental health treatment in group and individual settings and other activities. Heyer began participating in the CT Program in July 2012.

Since December 2008, Heyer has made multiple requests for ASL interpreters. The prison officials refused to provide qualified interpreters for any purpose, including scheduled medical appointments and medical emergencies, until late 2012. Heyer has had multiple seizures during his time at Butner. In 2010, the prison officials assigned another inmate, who does not know ASL, to act as Heyer's "inmate companion person" to help Heyer communicate with others. The prison officials also required Heyer to rely on this "companion" during medical interactions. As to the CT Program, the prison officials concluded that Heyer's inmate companion would be "inadequate" to facilitate Heyer's participation, but did not provide Heyer with ASL interpreters for the CT Program until September 2012.

In 2011, Heyer filed a lawsuit against the United States Bureau of Prisons ("BOP"). Heyer alleged, among other claims, that (1) the BOP violated Heyer's Fifth Amendment rights by failing to provide ASL interpreters for medical appointments and for the mental health treatment provided through the CT Program, and (2) the BOP violated Heyer's First Amendment rights by failing to provide access to a videophone. The district court granted summary judgment in favor of BOP on the claims.

With respect to his first Fifth Amendment claim, Heyer contended that he, a civil detainee, is entitled under the Fifth Amendment to at least the same protection prisoners receive under the Eighth Amendment. As deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment, Heyer argued that the failure to provide ASL interpreters amounted to deliberate indifference to his medical needs and thus violated his Fifth Amendment rights.

The Fourth Circuit agreed and held that Heyer's evidence was sufficient to support a finding of deliberate indifference. The deliberate indifference standard has two components: the plaintiff must show (1) that he had serious medical needs, and (2) that the defendant acted with deliberate indifference to those needs. See Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008). First, the Fourth Circuit found that Heyer, who suffered multiple seizures during his confinement, had serious medical needs. In addition, citing Farmer v. Brennan, 511 U.S. 825, 837 (1994), the court found that the absence of ASL interpreters during medical appointments exposed Heyer to "a substantial risk of serious harm." Second, the Fourth Circuit found that BOP acted with deliberate indifference to those needs by knowing Heyer's deafness since his arrival at Butner in 2008, knowing his need for an ASL interpreter for communication and treatment, knowing his inmate companion was inadequate to ensure understanding, and disregarding his requests for ASL interpreters. Thus, the Fourth Circuit concluded that the district court erred in granting summary judgment in favor of the BOP on the first Fifth Amendment claim.

With respect to his second Fifth Amendment claim, Heyer contended that BOP failed to provide ASL interpreters for the mental health treatment in the CT Program. The district court granted summary judgment for BOP, explaining that BOP had agreed to provide ASL interpreters for Heyer's participation in most aspects of the CT Program. The Fourth Circuit disagreed.

The Fourth Circuit observed that Heyer sought a court ruling that, because the length of his confinement is 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 treatment it offers to Adam Walsh Act detainees. Heyer also sought an injunction ordering BOP to provide the necessary interpreters. Thus, the court held that BOP's post-litigation decision to provide interpreters for some aspects of Heyer's treatment clearly provided no basis for rejecting Heyer's claim on the merits. Accordingly, the court concluded that the district court erred by granting summary judgment in favor of BOP on this claim as well.

With respect to his First Amendment claim, Heyer contended that BOP's failure to provide him with access to a videophone improperly restricted his First Amendment right to communicate with those outside the prison. The Fourth Circuit agreed. In Turner v. Safley, 482 U.S. 78 (1987), 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," and the Court identified four factors to consider when determining the reasonableness of the policy.

To start with, the Fourth Circuit held that BOP's TTY-only policy did impinge on Heyer's First Amendment rights. The court found that Heyer cannot effectively communicate through the TTY device because it requires proficiency in written English, in which Heyer does not possess.

The Fourth Circuit then determined whether that policy "is reasonably related to legitimate penological interests" based on the four-factor test in Turner. In discussing the first factor, the Fourth Circuit found that there is not a "valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it." Although BOP argued that its TTY-only policy furthered its legitimate interest in maintaining prison security and that videophone conversations must go through its secure Inmate Telephone System, the Fourth Circuit noted that the TTY system currently in place operates on an unsecured line in a private staff office. Also, as to whether monitoring of a videophone conversation would be more demanding of staff time than the monitoring of the TTY conversations that is already being done, the Fourth Circuit held that the fact finder could question whether a videophone system would in fact present the difficulties asserted by BOP.

Second, the Fourth Circuit held that Heyer has no alternate effective means of communication. Although BOP argued that alternative means of communicating (TTY, emails, written letters, and in-person visits) with those outside Butner were available to Heyer, the Fourth Circuit found all (except in-person visitation) involve the use of written English, in which Heyer has extremely limited proficiency. In addition, the court found that the availability of in-person visitation is of little help in emergencies or other situations where there is a need for immediate contact.

Third, the Fourth Circuit held that accommodating Heyer's needs would have a minimal effect on guards or other inmates or on the prison's allocation of resources. The court found that it was questionable that a videophone would require creation of a new, secure IT infrastructure, as BOP claimed. Moreover, nothing in the record indicated why a system-wide solution, as BOP claimed, would be required.

Finally, the Fourth Circuit found that there is a "ready alternative" to the challenged policy. Given Heyer's evidence of the minimal cost of a videophone and the ease with which security concerns could be mitigated, the court held that a fact finder could reasonably conclude that BOP's refusal to provide a videophone is an exaggerated response to the perceived security concerns. Accordingly, the Fourth Circuit concluded that the district court erred by granting summary judgment to BOP on the First Amendment claim.

To read the full opinion, click here.

Panel: Judges Motz, Traxler, and Floyd

Argument Date: 10/26/2016

Date of Issued Opinion: 02/23/2017

Docket Number: No. 15-6826

Decided: Affirmed in part, vacated in part, and remanded by published opinion

Case Alert Author: Maria Nazarova, Univ. of Maryland Carey School of Law

Counsel: 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.

Author of Opinion: Circuit Judge Traxler

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 03/24/2017 03:48 PM     4th Circuit  

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