Heyer v. United States Bureau of Prisons

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.
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.
2
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.
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
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
4
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
2 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).
5
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)
6
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
could not provide “at least several minutes” of ASL use during a
20-minute proficiency assessment. J.A. 372.
7
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.
8
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 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.
9
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
10
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 summary
judgment in favor of BOP on the remaining claims. The court
dismissed one claim for lack of standing, rejected some claims
on the merits, and rejected others as moot, based on BOP’s post-
litigation decision to begin providing ASL interpreters for
certain purposes. 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 quotation marks omitted).
4 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.
11
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 to Heyer’s medical needs. The deliberate-
indifference standard comes from the Supreme 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 wanton
infliction of pain proscribed by the Eighth Amendment.” Estelle
v. Gamble, 429 U.S. 97, 104 (1976) (citation and 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 protection prisoners receive
12
under the Eighth Amendment. 5 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 will explain, we agree with Heyer that his evidence is
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.”).
6In 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).
13
is an objective inquiry, and 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. A “serious medical
need” is “one that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay
person would easily recognize the necessity for a doctor’s
attention.” 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 are sufficiently serious to require medical
treatment. 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 Cir. 1999) (no evidence of
14
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 any questions or
instructions from the medical staff. 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 with medical
providers is unimportant to treatment. 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
15
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 risk of such serious harm resulting from the
prisoner’s unwilling exposure to the challenged 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. They need only show that there is a
substantial risk of serious harm.” (citation and internal
quotation marks omitted)).
In our view, the facts outlined above are sufficient to
show that the absence of ASL interpreters during medical
interactions exposed Heyer to a substantial risk of serious
harm. Heyer’s evidence is thus sufficient, at this stage of the
16
proceedings, to satisfy the objective 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 knowledge that harm will result.” Scinto v.
Stansberry, 841 F.3d 219, 225 (4th Cir. 2016) (internal
quotation marks and alterations omitted). A prison official
acts with deliberate indifference if he “knows of and disregards
an excessive risk to [the inmate’s] health or safety.” Farmer,
511 U.S. at 837. “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 Heyer’s evidence was sufficient to establish
deliberate indifference. BOP argues, however, that Heyer’s
evidence is insufficient. 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
17
was unable to communicate with medical staff to the extent there
existed a substantial risk of serious harm to his health.”
Brief of Appellee at 51. BOP notes that it provided Heyer with
an inmate interpreter to facilitate Heyer’s communication, and
it contends there is no evidence showing it knew that
communicating through the inmate companion was 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.” De’lonta
v. Johnson, 708 F.3d 520, 526 (4th Cir. 2013). 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
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. The
inappropriateness of using an interpreter who did not speak
Heyer’s language is obvious, and that very obviousness could
support a factfinder’s conclusion that BOP knew the inmate
companion was inadequate. 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 the formal provision of [CT Program]
treatment services.” J.A. 1276. As Dr. Hernandez explained in
his deposition, he found the inmate companion to be “inadequate
to conduct treatment,” J.A. 1117, and believed qualified
interpreters were “imperative” to “insure that there was
accurate, reliable understanding,” so as to “maintain the
19
adequacy of treatment, the effectiveness of treatment.” J.A.
1117; see also J.A. 1123 (Hernandez “cannot meaningfully
communicate with Mr. Heyer without 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 evidence shows BOP’s knowledge of all the factual
premises underpinning Heyer’s deliberate-indifference claim:
BOP knew that Heyer was deaf and needed ASL interpreters to
communicate; BOP knew that “accurate” and “reliable”
communication was necessary for Heyer’s treatment to be
effective; and BOP knew that the inmate companion was
“inadequate” to ensure understanding. While Dr. Hernandez may
have been speaking specifically to Heyer’s psychiatric
treatment, his views about the inadequacy of the inmate
companion are equally applicable to the treatment of his
physical health issues. 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
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 components of the
deliberate-indifference inquiry. 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 turn now to Heyer’s First Amendment claims. Heyer
contends that, despite his confinement, he retains 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.
21
Courts have generally concluded that the First Amendment
rights retained by convicted prisoners include the right to
communicate with others beyond the prison walls. 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 communicate with persons outside the prison walls,
subject to regulation that protects legitimate governmental
interests.”); Pope v. Hightower, 101 F.3d 1382, 1385 (11th Cir.
1996) (concluding that convicted prisoners retain a “First
Amendment right to communicate with family and friends”);
Washington v. Reno, 35 F.3d 1093, 1100 (6th Cir. 1994)
(recognizing that “persons incarcerated in penal 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, it explicitly agrees that “[t]he First Amendment
protects an inmate’s right to communicate with family and
friends.” Brief of Appellee at 15. Instead, BOP contends that
22
its refusal to provide Heyer with his communication method of
choice -- a videophone -- did not infringe his First Amendment
rights, such that there is no occasion to apply the Turner
factors. 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. We disagree.
23
BOP’s argument that Heyer can effectively communicate
through the TTY device is based on a highly selective reading of
the record. As previously discussed, the TTY device utilizes a
keyboard and permits the transmission of written messages
between TTY users; effective communication over a TTY device
therefore requires proficiency in written English. Heyer’s
evidence, however, establishes that he has extremely limited
proficiency in English and cannot communicate effectively in
written English. 7 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
accept as true the evidence showing that Heyer cannot
communicate effectively through written English and therefore
cannot communicate effectively through the TTY 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. 482 U.S. at 89. As explained in Turner,
the reasonableness of the policy depends on (1) whether a
“valid, rational connection [exists] between the 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 guards and other inmates, and on the allocation of
prison resources generally,” and (4) whether there was an
25
“absence of ready alternatives” to the regulation in question.
Id. at 89-90 (internal quotation marks omitted). 9
1.
We first consider whether there is a “valid, rational
connection between the prison regulation and the legitimate
governmental interest put forward to justify it.” Id. at 89
(internal quotation marks omitted). “[A] regulation cannot be
sustained where the logical connection between the regulation
and the asserted goal is so remote as to render the
policy arbitrary or irrational.” Id. at 89-90.
BOP contends that its TTY-only policy furthers its
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
9The 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.
26
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.
27
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 TTY
system already requires continuous staff monitoring. The TTY
device is in a private office with a computer and other staff
equipment, and a prison official is always present during
Heyer’s use of the TTY device. 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
28
thus the ban bears at least some connection to BOP’s legitimate
interest in maintaining security and protecting the public. As
we will explain, however, questions of fact arise under the
other Turner factors as to the reasonableness of BOP’s
videophone ban. See Jehovah v. Clarke, 798 F.3d 169, 178-79
(4th Cir. 2015) (reversing 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 alternate means of exercising the constitutional
right. “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.” Turner,
482 U.S. at 90 (citation, internal quotation marks, and
alteration omitted). BOP contends that alternate means of
communicating with those outside Butner are available to Heyer -
- specifically, TTY, email, written letters, and in-person
visits. 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
29
use of written English. As we have already explained, however,
the record contains evidence 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 the informed discretion of corrections
officials.” 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 agency-
30
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. This evidence thus creates questions of
fact about BOP’s assertion that a videophone would require
creation of a new, secure IT infrastructure.
BOP also insists that any accommodation should be
implemented on what would be a very expensive, system-wide
basis. 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 TTY device) at de minimis
31
expense to the government. 10 And while the videophone
conversations would require live monitoring by 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. Turner, 482 U.S.
at 90. 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 quotation marks omitted). Although the Court
cautioned lower courts not to treat this factor as the
equivalent of the “least restrictive alternative test,” the
Court held that “if an inmate claimant can point to an
alternative that fully accommodates the prisoner’s rights at de
minimis cost to valid penological interests, a court may
10
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.
32
consider that as evidence that the regulation does not satisfy
the reasonable relationship standard.” Id. at 90-91 (internal
quotation marks omitted). In this case, there is significant
evidence of ready alternatives to BOP’s ban on videophones.
As Heyer notes, the regular inmate telephone system
presents security risks -- for example, inmates can use the
phone to direct or commit crimes, and the call recipient can
record and post the call on the Internet. Those risks, however,
have not driven BOP to ban telephones; instead, it handles
individual problems as they arise, suspending usage rights for
offending inmates and taking other appropriate action. Nothing
in the record suggests that the security risks 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. The TTY device
requires the user to have physical access 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
33
up in a way that the detainee has no access to it. Basic
software packages permit videophones to be password-protected to
prohibit unauthorized access; TTY devices are not password-
protected. 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 print-
out 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. The district court therefore
erred by granting summary judgment to BOP on Heyer’s First
Amendment videophone claim. See Jehovah, 798 F.3d 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 by unreasonably
restricting his access to the TTY device. The district court
summarily rejected that claim, concluding that Heyer had proved
34
“at most isolated instances of being unable to use the TTY
immediately upon [his] request.” J.A. 145. We agree with Heyer
that the record precludes a grant of summary judgment on this
claim.
Heyer filed a verified complaint, which is the “the
equivalent of an opposing affidavit for summary judgment
purposes.” World Fuel Servs. Trading, DMCC v. Hebei Prince
Shipping Co., 783 F.3d 507, 516 (4th Cir. 2015) (internal
quotation marks omitted). In his complaint, he states that
access to the TTY is “regularly restricted or denied,” J.A. 40,
and that prison staff “consistently den[ies him] access
altogether without justification,” J.A. 41. 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
First Amendment claim. Cf. Washington, 35 F.3d at 1100 (“[A]
prisoner’s right to 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 questions of fact
preclude the grant of summary judgment. Heyer alleges in his
complaint that access to the TTY was often denied without
justification, and a factfinder could certainly conclude that
arbitrary interference with a detainee’s exercise of his
constitutional rights is not “reasonably related” to any
“legitimate penological interests.” Turner, 482 U.S. at 89;
cf. Benzel v. Grammer, 869 F.2d 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 are questions of fact on issues relevant to 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
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 Heyer’s RFRA and First Amendment
claims (Counts IX and X) based on BOP’s failure to provide
interpreters for religious services because BOP stated that it
would begin providing interpreters for religious services on
request). 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 court explained that BOP’s voluntary cessation of
the challenged action mooted the claims because BOP
37
“unequivocally state[s] that [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 well established that a defendant’s voluntary
cessation of a challenged practice 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, 741 F.3d 492, 497 (4th Cir. 2014) (internal
quotation marks omitted). “[W]hen a defendant 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 to start up again.” Id. (internal
quotation marks omitted). “[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 . . .
38
inmates with a qualified interpreter . . . if necessary for
effective communication during religious ceremonies or
programs.” J.A. 343. BOP contends this assurance is sufficient
to support the district court’s ruling because BOP has “no
policy or practice . . . that prevents deaf inmates 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. We disagree.
Regardless of 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 mid-
litigation change of course. Viewed through that lens, the
chaplain’s statement does not support the district court’s
decision to dismiss these claims as moot. 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
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. Because the record establishes that BOP has
already failed to live up to its promises regarding the
provision of ASL interpreters, the record does not require us to
conclude that “the challenged conduct cannot reasonably be
expected to start up again.” Id. at 497 (internal quotation
marks omitted). 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.” J.A.
143.
40
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 sufficient. See, e.g.,
De’lonta, 708 F.3d at 526. 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 evidence challenging the adequacy of the prison’s
other existing mechanisms for ensuring Heyer’s awareness of
emergencies. Under these circumstances, the district 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 mental-
health treatment provided through the CT Program. The district
court assumed that Heyer had a protected liberty interest in
11In 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
receiving the treatment. 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. See J.A. 137.
Even if we 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. Instead, Heyer seeks 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
detainees, and he also seeks an injunction ordering BOP to
provide the necessary interpreters. BOP’s 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.
42
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), safe-
environment 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 summary judgment in favor of BOP on Count II and
dismissing Counts IX and X as moot. 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