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