UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION

__________________________________________

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THOMAS HEYER

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and ROBERT BOYD,

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Plaintiffs,

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v.

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UNITED STATES BUREAU OF PRISONS,

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THOMAS R. KANE, in his official

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Civil Action No. 5:11-cv-318

capacity as Acting Director of the United States )

Bureau of Prisons;

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COMPLAINT

IKE EICHENLAUB, in his official

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capacity as Regional Director of the

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United States Bureau of Prisons

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Mid-Atlantic Region;

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and

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SARA M. REVELL, Warden, FCC Butner, and )

TRACY W. JOHNS, Warden, FCI Butner

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Medium,

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Defendants.

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__________________________________________)

Plaintiffs Thomas Heyer (“Mr. Heyer”) and Robert Boyd (“Mr. Boyd”) (collectively

“Plaintiffs”), by their undersigned counsel, file this complaint against defendants the United

States Bureau of Prisons (“BOP”), Thomas R. Kane, Ike Eichenlaub, Sara M. Revell, and Tracy

W. Johns (collectively “Defendants”), alleging as follows:

NATURE OF THE ACTION

1. This lawsuit arises from Defendants’ violation of federal law and the United

States Constitution by refusing to provide Thomas Heyer and Robert Boyd – two deaf men in

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Defendants’ custody at the Federal Correctional Institution (“FCI”) in Butner, North Carolina – effective communication and auxiliary aids necessary to accommodate their disability. Defendants’ illegal and discriminatory conduct has deprived – and continues to deprive – Mr. Heyer and Mr. Boyd of the ability to, inter alia, receive adequate and informed medical treatment, participate in institution disciplinary proceedings, effectively take part in any rehabilitative, educational, or religious programs, or communicate with those within and outside the institution. Accordingly, Mr. Heyer and Mr. Boyd seek from the Court the accommodations to which they are legally entitled and which Defendants have refused to provide.
JURISDICTION AND VENUE 2. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 because this action arises under the Constitution and laws of the United States. 3. Venue is proper in this jurisdiction pursuant to 28 U.S.C. § 1391(e) because Plaintiffs and some or all of the Defendants reside in this district, and a substantial part of the events and omissions giving rise to Mr. Heyer and Mr. Boyd’s claims occurred in this district.
THE PARTIES A. Plaintiffs
1. Thomas Heyer 4. Thomas Heyer has been deaf since birth. 5. Mr. Heyer’s native language is American Sign Language (“ASL”), a complex language that employs signs made with the hands, facial expressions and body language. ASL is a language distinct and different from English—it is not simply English in hand signals. ASL has its own vocabulary and its own rules for grammar and syntax. Mr. Heyer requires a qualified ASL interpreter to communicate effectively with persons who do not know and use ASL.
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6. Mr. Heyer’s ability to read lips is limited. In general, lip reading is a very difficult and unreliable form of communication. It is extremely difficult to lip-read English because only a small fraction of the sounds used in speaking are clearly visible on the mouth and many sounds appear identical on the lips. In addition to the difficulties in lip-reading, the ability to accurately lip-read is greatly affected by the speaker’s accent, facial bone structure, facial musculature, facial hair, lighting, distance from the lip reader, and other external factors.
7. In addition, reading and writing cannot be relied upon to provide effective communication with Mr. Heyer. Mr. Heyer did not complete high school and has an eighth grade education. As with most persons who become deaf before acquiring language, ASL is Mr. Heyer’s native language, and English is a second language for him. Therefore, Mr. Heyer’s English reading and writing skills are much lower than average, and his ability to communicate by reading and writing is profoundly compromised.
2. Robert Boyd 8. Robert Boyd, a Marine Corps veteran, has been profoundly deaf since 1975, when he lost his hearing as a result of his military service. Mr. Boyd is unable to understand speech, even with the use of hearing aids. Mr. Boyd uses hearing aids to help him hear the direction from which a sound is coming. However, the hearing aids do not work properly unless Mr. Boyd receives new hearing aid batteries when the old batteries weaken or die. 9. Mr. Boyd communicates by using ASL and requires a qualified ASL interpreter to communicate effectively with persons who do not know and use ASL. 10. Mr. Boyd’s ability to read lips is limited. And, for the reasons discussed above, lip reading is a difficult and unreliable form of communication. 11. For these reasons and others, Mr. Boyd does not effectively understand spoken
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English. Instead, Mr. Boyd requires a qualified ASL interpreter to communicate effectively with persons who do not know and use ASL.
12. Despite Mr. Boyd’s profound deafness, a member of Defendants’ staff – Mr. Taylor, Mr. Boyd’s unit counselor – has repeatedly told Mr. Boyd that he does not believe Mr. Boyd is deaf and has refused him effective communication and auxiliary aids on this ground.
B. Defendants 13. The BOP is the federal executive agency responsible for the supervision and custody of over 200,000 inmates and detainees, including Plaintiffs. The BOP is headquartered in Washington, D.C. FCI Butner, where Plaintiffs are detained, is a correctional complex controlled and operated by the BOP. 14. Thomas R. Kane (“Acting Director Kane”) is the Acting Director of the BOP. Acting Director Kane is responsible for the oversight and management of the BOP’s 115 institutions and for the safety and security of the more than 200,000 inmates and detainees under the agency’s jurisdiction, including the BOP’s policies and practices regarding the treatment of and services provided to disabled inmates and detainees. Acting Director Kane is aware of the BOP’s and FCI Butner’s policies and practices regarding disabled individuals and, more specifically, Defendants’ failure to provide Plaintiffs with effective communication in FCI Butner’s programs and services. He is sued in his official capacity. 15. Ike Eichenlaub (“Regional Director Eichenlaub”) is the Regional Director of the BOP’s Mid-Atlantic Region. He is responsible for the development, approval, implementation, monitoring and evaluation of policies, operations and programs for the federal institutions and correctional complexes in the Mid-Atlantic Region, including FCI Butner. He is aware of the BOP’s and FCI Butner’s policies and practices regarding disabled individuals and, more
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specifically, Defendants’ failure to provide Plaintiffs with effective communication in FCI Butner’s programs and services. He is sued in his official capacity.
16. Sara M. Revell (“Warden Revell”) and is the warden of Federal Correctional Complex (“FCC”) Butner. Tracy W. Johns (“Warden Johns”) is the warden of FCI Butner. Warden Revell and Warden Johns are responsible for the day-to-day operations of the Butner. They are aware of the BOP’s and FCI Butner’s policies and practices regarding disabled individuals and, more specifically, Defendants’ failure to provide Plaintiffs with effective communication in FCI Butner’s programs and services. They are sued in their official capacity.
17. At all times relevant to this action, Acting Director Kane, Regional Director Eichenlaub, Warden Revell, and Warden Johns, were acting pursuant to their authority as an official, agent, or employee of the United States.
STATEMENT OF FACTS A. Plaintiffs’ Civil Detention 18. Although they are being held in FCI Butner, Plaintiffs are not prisoners. Mr. Heyer and Mr. Boyd both have been previously convicted of federal crimes, but they have served their complete sentences. They are detained pending a hearing under the Adam Walsh Child Protection and Safety Act of 2006. See 18 U.S.C. § 4248. Once the government has initiated the civil commitment process, the release of the individual is stayed pending a mandatory hearing to determine whether the person is sexually dangerous. Id. 19. Mr. Heyer and Mr. Boyd, as certified individuals, have been in the custody of BOP at FCI Butner since 2008, awaiting their mandatory civil commitment hearing under § 4248, the dates of which have not been determined. All § 4248 cases pending in the Eastern
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District of North Carolina were stayed from July 3, 2008 until June 14, 2010 pending the determination of the constitutionality of § 4248.
20. To date, and as described below, Defendants have denied Mr. Heyer and Mr. Boyd all forms of effective communication. This deprivation of Plaintiffs’ rights would only be compounded if Plaintiffs’ detention continues following a hearing. In that circumstance – if not remedied by the Court – Plaintiffs would be deprived of the means of effectively communicating with the very individuals who are determining whether Plaintiffs’ detention must continue.
B. Medical Treatment and Rehabilitation 21. Mr. Heyer and Mr. Boyd both entered FCI Butner in the spring of 2008 and were placed in the “Maryland Unit” of the facility, along with about 90 other detainees awaiting a civil commitment hearing under 18 U.S.C. § 4248. 22. Detainees are encouraged to periodically attend Multidisciplinary Treatment Team (“MTT”) meetings to discuss available programs and rehabilitation progress. Defendants have refused to provide Mr. Heyer or Mr. Boyd with a qualified ASL interpreter during these meetings. For example, at a September 21, 2010, meeting with his MTT, Mr. Heyer left the meeting after no interpreter was provided because he could not effectively participate. However, Butner staff have communicated to other detainees that Mr. Heyer’s non-attendance may be held against him at subsequent proceedings. 23. Mr. Boyd receives frequent medical treatment at FCI Butner for certain dermatological conditions, and Defendants have not provided a qualified ASL interpreter to accompany him during these medical appointments. Forced to rely on lip-reading, Mr. Boyd’s medical appointments are further hindered due to his inability to engage in even limited communication with non-native English-speaking doctors, whose accents compound the inherent
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difficulties of lip-reading. 24. Mr. Heyer also receives medical treatment at FCI Butner for his high blood
pressure and high cholesterol, and Defendants have not provided a qualified ASL interpreter to accompany him during these medical appointments. In addition, because he is not provided an interpreter at these appointments, Mr. Heyer does not know when and how often he must refill his prescription medications. For example, during a recent medical appointment on February 8, 2011, the doctor reprimanded Mr. Heyer for failing to get refills for his blood pressure medication, but Mr. Heyer did not understand the doctor’s previous instructions for taking the medications because he was not provided with an interpreter at that prior visit. Mr. Heyer therefore went without critical medications due to the failure of Defendants to provide him with effective communication at his medical appointments. In addition, doctors at Butner have altered Mr. Heyer’s medication dosages on occasion, without the benefit of actually communicating with their patient.
25. Under the foregoing circumstances, Mr. Heyer and Mr. Boyd are unable to understand their medical treatment or provide informed consent to medical treatments and procedures.
26. Mr. Heyer and Mr. Boyd also receive dental treatment at FCI Butner, but they are not provided with a qualified ASL interpreter to accompany them during these dental appointments. For example, Mr. Boyd last visited the dentist the week of February 7, 2011, to address a tooth infection and extraction. He was not provided with an interpreter at this visit, and no one accompanied him to the appointment. Similarly, Mr. Heyer recently went to the dentist for treatment for a broken tooth, but was provided no interpreter and did not understand anything the dentist was saying to him. In addition to the normal difficulties surrounding lip-
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reading, Mr. Heyer and Mr. Boyd were both completely unable to read the dentist’s lips due to the strong examination light and the fact that the dentist wore a mask. Again, neither Mr. Heyer nor Mr. Boyd could effectively understand their dental treatment or consent to dental procedures under these circumstances.
27. Additionally, Mr. Boyd has requested a qualified ASL interpreter to accompany him during his ophthalmology appointments, and Defendants have refused to provide one.
28. Occasionally, another detainee, who has extremely limited ASL abilities, has been assigned to accompany Mr. Heyer and Mr. Boyd to their medical appointments and to serve as a de facto interpreter. A lay interpreter with limited skills does not enable effective communication between Plaintiffs and medical personnel. Further, Plaintiffs object to disclosure of their private medical information to a fellow detainee, who is under no obligation to keep confidential any information communicated during Plaintiffs’ medical appointments.
2. Disciplinary Proceedings 29. Plaintiffs were not provided an interpreter for the registration and orientation programs upon their arrival in FCI Butner, nor are they provided an interpreter for periodic “Town Hall Meetings,” which cover rules and other matters. As a result, Plaintiffs have had and continue to have difficulty understanding the rules and regulations of FCI Butner. 30. As a result of this lack of knowledge about the facility rules and regulations, Mr. Heyer and Mr. Boyd have been subject to disciplinary proceedings and called before the Unit Disciplinary Committee (“UDC”) on several separate occasions for alleged violations of the facility’s rules and regulations. However, despite specific requests from both Mr. Heyer and Mr. Boyd, neither have been provided with a qualified ASL interpreter at these proceedings. The proceedings are before the unit counselor, Mr. Taylor, and the case manager, Ms. Weaver. Mr.
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Taylor has even informed Mr. Boyd on several occasions that he does not believe Mr. Boyd is
deaf.
31. As a result of these disciplinary proceedings, certain of Plaintiffs’ privileges,
including telephone and commissary privileges, have been taken away for periods of time
ranging from two to six months.
3. Communication With Those Outside FCI Butner
32. Plaintiffs would like to communicate with people outside of FCI Butner, such as
their attorneys, family, and friends, but their access to appropriate telecommunications devices is
repeatedly restricted or denied.
33. Plaintiffs cannot use a telephone in the same way as a hearing person. Instead,
they require a TTY, a videophone, or a CapTel phone.
a. A TDD or TTY (hereinafter “TTY”) allows people to send written messages back and forth to each other by telephone. When both users have TTYs, they can communicate directly over telephone lines. When one person does not have a TTY, a Telecommunications Relay Service (“TRS”) operator reads aloud the written messages from the TTY user and transcribes the non-TTY user’s verbal response. TRS services are toll free. Though a TTY is a helpful communication tool, it ultimately relies on the user’s ability to communicate in written English and, in all events, is a much more time-intensive communication tool than the telephone. The TTY is 60-year-old technology, and has been for the most part supplanted by the videophone. Most deaf individuals no longer have TTYs, and communicate on telephone solely by videophone.
b. A videophone is a telephone with a camera and screen for visual, realtime communication. Thus, a videophone is a far more effective auxiliary aid for deaf individuals like Plaintiffs who use ASL as a primary means of communication, both because it depends upon ASL skills instead of written skills for communication, and because without a videophone there is no way to contact most deaf individuals outside the institution who no longer own TTYs. Like the TRS system, there is now a Video Relay Service (“VRS”), so that communication can be accomplished by videophone between an ASL user and a hearing, nonASL user through a relay operator who is a qualified ASL interpreter. However, under the current system one cannot place a call from a TTY to a videophone through any relay service.
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c. A CapTel phone is an inexpensive device that allows the user to call another party and speak verbally, while the answering party responses are transcribed and displayed through a captioning service. The CapTel thus permits deaf individuals like Mr. Boyd to use their voice to send messages, while using their eyes to read the written English responses.
34. The Maryland Unit has only one TTY device, and does not have any videophones or CapTel phones. The single TTY device is located in the office of the unit counselor, Mr. Taylor, and therefore can be accessed only by asking Mr. Taylor or the case manger, Ms. Weaver, to unlock the office. Then, either Mr. Taylor or Ms. Weaver must dial the number of the person to whom Plaintiffs wish to communicate. If Mr. Taylor or Ms. Weaver have left the office or are otherwise unavailable, Plaintiffs have no way of accessing the TTY device.
35. Moreover, Plaintiffs are not permitted to make direct TTY to TTY calls on the Maryland Unit TTY. All TTY calls must be made to a Telecommunications Relay System, which is designed to relay TTY calls to hearing persons. Therefore Plaintiffs are completely unable to place calls to other deaf persons outside the institution, even if these persons still had TTYs.
36. Plaintiffs’ access to the lone TTY device in the Maryland Unit is regularly restricted or denied, and their access to the TTY device does not provide them an equal opportunity to access telephones as is provided to other detainees. Other detainees are permitted up to 300 minutes of phone time per month, while Mr. Heyer and Mr. Boyd are given access to the TTY phone for significantly shorter periods of time. While other detainees are permitted to use the telephone for calls from 6:00 a.m. until 11:30 p.m., seven days a week, Plaintiffs are restricted to using the TTY device on weekdays from 7:30 a.m. until 3:30 p.m. Finally, while other detainees need not ask permission to use the phone and can use the phone several times a day, Plaintiffs must ask Mr. Taylor or Ms. Weaver to unlock the office in order to use the TTY,
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and those individuals consistently deny them access altogether without justification. 37. Mr. Heyer is especially restricted in his ability to communicate with friends and
family outside the institution. Writing letters is not an effective means of communication for him, and TTY communication poses similar problems for him, due to his lack of English language competency.
38. In addition, Mr. Heyer has deaf friends whom he is unable to telephone due to the fact that they do not own TTYs, and instead use videophones. Because Mr. Heyer does not have access to a videophone, he is unable to stay in communication with his deaf friends outside the institution and the deaf community in general.
39. Regular access to a videophone with relay technology, and a CapTel for Mr. Boyd, would allow Plaintiffs to remain in contact with their family, friends, and attorneys outside of FCI Butner.
4. Other Necessary Accommodations Denied 40. The facilities at FCI Butner, including Plaintiffs’ rooms, lack visual alarms, pagers, or message boards that would alert Plaintiffs to an emergency, such as a fire or lockdown. 41. Plaintiffs are not alerted to announcements made over the public address speaker system, such as meal announcements, count calls, or meetings. A pager and message board where announcements are posted would allow them to receive these messages. 42. Mr. Boyd’s hearing aid batteries, though used properly, often significantly weaken and become unusable after a period of days or even hours. Despite Mr. Boyd’s requests, Defendants have not provided well-operating hearing aid batteries to him on an as-needed basis. Mr. Boyd is often provided with old and corroded hearing aid batteries that only last a few
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minutes. As a result, Mr. Boyd’s hearing aids are often useless for long periods of time or have been damaged because of the corrosive batteries provided.
43. Plaintiffs would like to attend religious services offered at FCI Butner. Mr. Boyd consistently attended religious services at prior corrections institutions where a volunteer interpreter was consistently provided. However, no interpreter is provided for the services at FCI Butner, making it impossible for Plaintiffs to effectively participate in those services.
44. Mr. Heyer attends a GED preparation course offered at FCI Butner, but because of Defendants’ failure to provide him with an interpreter at the class, his participation is limited because he cannot ask the course assistant any questions and cannot hear when the time limits for sample examinations are finished.
45. The four televisions in the common area of the Maryland Unit are capable of displaying closed captioning, but Plaintiffs are harassed or physically threatened by other detainees when the closed captioning is activated. Staff members have refused to activate the closed captioning or provide a television where the closed captioning is consistently activated, despite frequent requests and grievances from the Plaintiffs. Staff members are also aware of the physical threats and harassment experienced by Plaintiffs when trying to activate the closed captioning, but make no efforts to prevent this activity or to restrain the other detainees from harassing or threatening Plaintiffs.
46. Plaintiffs are unable to access goods sold in the commissary because they are handed through a mirrored window, and they cannot interact with the person behind the mirrored window in any fashion.
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CLAIMS FOR RELIEF COUNT I: DISCRIMINATION ON THE BASIS OF A DISABILITY IN VIOLATION OF THE REHABILITATION ACT AGAINST ALL
DEFENDANTS (29 U.S.C. §§ 794 ET SEQ. AND 5 U.S.C. § 703) 47. Plaintiffs reallege and incorporate by reference each and every allegation above as if fully set forth herein. 48. The Rehabilitation Act of 1973, 29 U.S.C. §§ 794 et seq. (hereinafter “Rehabilitation Act”), provides that “[n]o otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.” 49. Plaintiffs are deaf and, as such, are qualified individuals with a disability within the meaning of the Rehabilitation Act, 29 U.S.C. § 705(20). 50. Plaintiffs are otherwise qualified to receive informed medical treatments offered to other inmates and detainees at FCI Butner, and eligible to participate in commensurate educational, religious, rehabilitation, vocational, and all other programs provided to others at that facility. 51. The BOP is an executive agency within the meaning of 29 U.S.C. § 794(a). 52. The operations of the BOP, including the departments, agencies, programs and instrumentalities at FCI Butner such as Health Services, Psychology Services, Sex Offender Management and Treatment, Drug Abuse Treatment, the Education Department and its associated programs, Vocational and Occupational Training programs, Inmate Skills Development Initiative, and work programs such as Federal Prison Industries, are “program[s] or
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activit[ies] conducted by an Executive Agency” within the meaning of 29 U.S.C. §§ 794(b)(1)(A)-(B) and/or (b)(2)(B).
53. At all times relevant to this action, the Rehabilitation Act was in full force and effect in the United States, and Plaintiffs had and have a right not to be subjected to discrimination on the basis of their disability by Defendants. 29 U.S.C. § 794(a).
54. The purpose of the Rehabilitation Act is to ensure that no “qualified individual with a disability . . . shall, solely by reason of [] disability, be excluded the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency . . . .” 29 U.S.C. § 794(a).
55. The Department of Justice’s regulations implementing the Rehabilitation Act clarify that the BOP and all its activities are “program[s] or activit[ies] conducted by an Executive Agency” of the United States government, and that “the agency shall furnish appropriate auxiliary aids where necessary to afford a handicapped person an equal opportunity to participate in, and enjoy the benefits of, a program or activity conducted by the agency.” 28 C.F.R. § 39.160(a)(1). The Department of Justice’s regulations implementing the Rehabilitation Act additionally mandate that “[i]n determining what type of auxiliary aid is necessary, the agency shall give primary consideration to the requests of the handicapped person.” 28 C.F.R. § 39.160(a)(1)(i) (emphasis added).
56. Auxiliary aids include, but are not limited to, interpreters and telecommunication devices for deaf persons. 28 C.F.R. § 39.103.
57. Defendants have discriminatorily impaired and continue to discriminatorily impair Plaintiffs’ ability to communicate effectively with medical staff and healthcare providers,
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including physicians; educational and vocational instructors and their fellow students; work
program managers and coordinators and their fellow employees; correctional officers; and other
members of the institution staff. Furthermore, Defendants have excluded and continue to
exclude Plaintiffs from religious, educational, and vocational programs, telephone services,
access to functioning hearing aid batteries, television access with closed-captioning, and
institution-wide alarms and announcements. Defendants have done this by failing to provide
appropriate auxiliary aids to Plaintiffs in violation of the Rehabilitation Act.
58. Defendants’ failure to provide to Plaintiffs appropriate auxiliary aids and services
to ensure effective communication has denied and continues to deny Plaintiffs, on the basis of
their deafness, the same access to Defendants’ services, benefits, activities, programs and
privileges as is afforded to hearing individuals.
59. The failure to provide appropriate auxiliary aids and services to ensure effective
communication, and the failure to provide comparable access to services, benefits, activities,
programs and privileges are policies, regular practices and/or customs of Defendants. These
failures are ongoing and continue to this date.
60. Defendants have continually failed to provide Plaintiffs with a qualified ASL
interpreter and other reasonable auxiliary aids for their deafness resulting in Plaintiffs being:
• unable to communicate effectively with healthcare providers, raise medical issues, understand the treatments and medications they prescribe, or discuss mental health problems;
• excluded from participating in the same religious, educational, vocational, and rehabilitation classes and work programs as hearing detainees;
• deprived of knowledge of institution-wide safety or emergency announcements; deprived of knowledge of institution counts, meals and other important daily activities;
• unable to communicate effectively with correctional officers and staff members; • subject to disciplinary action stemming from Defendants’ refusal to accommodate
their deafness;
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• deprived of meaningful participation in disciplinary proceedings; • prevented from obtaining consistent access to new hearing aid batteries; • harassed by other detainees for attempting to activate closed-captioning on the
television in their unit; and • prevented from contacting family, friends, and their counsel. 61. As a proximate result of Defendants’ violations of the Rehabilitation Act, Plaintiffs have suffered, and continue to suffer, discrimination, unequal treatment, exclusion (including exclusion from Defendants’ services, benefits, activities, programs and privileges), financial loss, loss of dignity, frustration, humiliation, emotional pain and suffering, anxiety, trauma, embarrassment, unnecessary loss of rights and privileges, including unnecessary disciplinary measures, and serious injury to their health and mental health, including the injuries specified herein. 62. Defendants’ failure to comply with the Rehabilitation Act has resulted in harm to Plaintiffs, and Defendants are liable to Plaintiffs for harms suffered. Defendants’ failure to comply with the Rehabilitation Act will continue to result in harm to Plaintiffs, as Plaintiffs will be in the custody or supervision of the BOP and will continue to seek to use the services, benefits, activities, programs and privileges provided by Defendants and to which they are entitled. This harm will continue unless and until Defendants are ordered by this Court to modify their policies, practices and procedures as demanded by the Rehabilitation Act. COUNT II: VIOLATION OF THE CONSTITUTION OF THE UNITED
STATES DUE PROCESS AGAINST ALL DEFENDANTS (FIFTH AMENDMENT – RIGHT TO QUALIFIED INTERPRETER
AT DISCIPLINARY HEARINGS) 63. Plaintiffs reallege and incorporate by reference each and every allegation above as if fully set forth herein. 64. Under the Fifth Amendment of the Constitution of the United States, “[n]o person
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. . . shall . . . be deprived of life, liberty, or property, without due process of law.” 65. The Fifth Amendment guarantees Plaintiffs notice and a meaningful opportunity
to be heard in connection with institution disciplinary proceedings. 66. In addition to failing to adequately inform Plaintiffs of the rules applicable in the
Maryland Unit, Defendants have repeatedly refused to provide Plaintiffs qualified sign language interpreters for disciplinary hearings stemming from Plaintiffs’ alleged violation of those rules, and imposed various punishments on Plaintiffs when it has been determined that such rules were violated. Defendants’ refusal to provide qualified interpreters at these hearings has deprived Plaintiffs of notice and a meaningful opportunity to be heard in connection with their disciplinary proceedings.
67. Defendants’ failure to comply with the Fifth Amendment has resulted and will continue to result in harm to Plaintiffs, unless and until they are ordered by this Court to modify their policies, practices and procedures.
COUNT III: VIOLATION OF THE CONSTITUTION OF THE UNITED STATES – DUE PROCESS AGAINST ALL DEFENDANTS
(FIFTH AMENDMENT – INFORMED CONSENT TO MEDICAL TREATMENT) 68. Plaintiffs reallege and incorporate by reference each and every allegation above as
if fully set forth herein. 69. Under the Fifth Amendment of the Constitution of the United States, “[n]o person
. . . shall . . . be deprived of life, liberty, or property, without due process of law.” 70. The Fifth Amendment guarantees the right to be free from unwanted medical
treatment, including the right to be treated only with one’s informed consent. 71. Defendants have systematically denied Plaintiffs the means of effective
communication, including the services of a qualified ASL interpreter, which are necessary to allow Plaintiffs to understand and communicate with medical staff and healthcare providers,
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including mental health professionals and pharmacists. Without these auxiliary aids, Plaintiffs were and are unable to understand, and thus give their informed consent to, any and all medical treatment to which they have been subjected by Defendants and their employees.
72. Defendants’ failure to comply with the Fifth Amendment has resulted in harm to Plaintiff and will continue to do so, as Plaintiffs will remain in the custody of the BOP and will continue to be subjected to these conditions unless and until Defendants are ordered by this Court to modify their policies, practices and procedures pursuant to the Fifth Amendment.
COUNT IV: VIOLATION OF THE CONSTITUTION OF THE UNITED STATES – DUE PROCESS AGAINST ALL DEFENDANTS
(FIFTH AMENDMENT – RIGHT TO PRIVACY IN MEDICAL TREATMENT) 73. Plaintiffs reallege and incorporate by reference each and every allegation above as
if fully set forth herein. 74. Under the Fifth Amendment of the Constitution of the United States, “[n]o person
. . . shall . . . be deprived of life, liberty, or property, without due process of law.” 75. The Fifth Amendment guarantees Plaintiffs a constitutional right to privacy in
medical treatment. 76. Defendants’ use of other inmates or detainees to interpret for Plaintiffs during
medical and mental health appointments violates Plaintiffs’ constitutional right to privacy in medical treatment. Such inmate or detainee interpreters have no obligation to keep confidential any information communicated during Plaintiffs’ medical or mental health appointments. Moreover, this breach of Plaintiffs’ privacy rights is especially problematic in the institution setting where an inmate or detainee’s possession of confidential information about another inmate or detainee can be used in threatening and dangerous ways.
77. Defendants’ failure to comply with the Fifth Amendment has resulted in harm to Plaintiff and will continue to do so, as Plaintiffs will remain in the custody of the BOP and will
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continue to be subjected to these conditions unless and until Defendants are ordered by this Court to modify their policies, practices and procedures pursuant to the Fifth Amendment.
COUNT V: VIOLATION OF THE CONSTITUTION OF THE UNITED STATES – DUE PROCESS AGAINST ALL DEFENDANTS
(FIFTH AMENDMENT – RIGHT TO ADEQUATE MEDICAL TREATMENT) 78. Plaintiffs reallege and incorporate by reference each and every allegation above as
if fully set forth herein. 79. Under the Fifth Amendment of the Constitution of the United States, “[n]o person
. . . shall . . . be deprived of life, liberty, or property, without due process of law.” 80. The Fifth Amendment guarantees Plaintiffs a right to reasonably adequate
medical care and treatment, including the right to any necessary assistive devices for Plaintiffs’ disabilities.
81. Defendants have failed to provide Mr. Boyd with batteries for his hearing aids that are necessary to help Mr. Boyd hear the direction of certain sounds, thereby violating Mr. Boyd’s right to adequate medical care and assistive devices necessary for his disability.
82. Defendants’ failure to comply with the Fifth Amendment has resulted in harm to Plaintiff and will continue to do so, as Plaintiffs will remain in the custody of the BOP and will continue to be subjected to these conditions unless and until Defendants are ordered by this Court to modify their policies, practices and procedures pursuant to the Fifth Amendment.
COUNT VI: VIOLATION OF THE CONSTITUTION OF THE UNITED STATES DUE PROCESS AGAINST ALL DEFENDANTS
(FIFTH AMENDMENT – RIGHT TO A REASONABLY SAFE ENVIRONMENT) 83. Plaintiffs reallege and incorporate by reference each and every allegation above as if fully set forth herein. 84. Under the Fifth Amendment of the Constitution of the United States, “[n]o person . . . shall . . . be deprived of life, liberty, or property, without due process of law.”
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85. The Fifth Amendment guarantees Plaintiffs a right to a reasonably safe living environment.
86. Defendants have failed to provide adequate visual alarms, pagers, or message boards that would alert Plaintiffs to an emergency, such as a fire or lockdown, thereby violating Plaintiffs’ right to a reasonably safe living environment.
87. Defendants’ failure to comply with the Fifth Amendment poses an unreasonable risk of future harm to Plaintiffs’ and will continue to do so, as Plaintiffs will remain in the custody of the BOP and will continue to be subjected to these conditions unless and until Defendants are ordered by this Court to modify their policies, practices and procedures pursuant to the Fifth Amendment.
COUNT VII: VIOLATION OF THE CONSTITUTION OF THE UNITED STATES FREEDOM OF SPEECH AGAINST ALL DEFENDANTS (FIRST AMENDMENT)
88. Plaintiffs reallege and incorporate by reference each and every allegation above as if fully set forth herein.
89. Defendants have further impermissibly deprived, and continue to deprive, Plaintiffs of their First Amendment rights of freedom of speech by failing to provide them with telecommunication equipment necessary for them to communicate with family and friends outside of FCI Butner.
90. Hearing inmates and detainees at FCI Butner have telecommunication equipment that allows communication with people outside of FCI Butner.
91. Defendants’ refusal to provide Plaintiffs with telecommunication equipment to ensure the same level of access as hearing detainees serves no legitimate or compelling need and is not rationally related or narrowly tailored to any identified penological or rehabilitative need.
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92. Because Plaintiffs are housed in a remote area far from their families and friends, and do not communicate effectively in written or spoken English, written correspondence and personal visits are not adequate alternatives for exercising their First Amendment right to communicate with friends and family.
93. Provision of appropriate telecommunication equipment to Plaintiffs would have negligible effects, if any, on other inmates, detainees, and prison employees at FCI Butner.
94. Defendants’ failure to comply with the First Amendment of the United States Constitution has resulted and will continue to result in harm to Plaintiffs, unless and until they are ordered by this Court to modify their policies, practices and procedures.
COUNT VIII: VIOLATION OF THE RELIGIOUS FREEDOM RESTORATION ACT AGAINST ALL DEFENDANTS (42 U.S.C. §§ 2000bb ET SEQ.)
95. Plaintiffs reallege and incorporate by reference each and every allegation above as if fully set forth herein.
96. Governments may not impose substantial burdens on the religious exercises of institutionalized persons even if the burden results from a rule of general applicability. 42 U.S.C. § 2000bb-1(a).
97. As a branch, department, agency, or instrumentality of the United States, BOP is a government within the meaning of the Religious Freedom Restoration Act (“RFRA”). 42 U.S.C. § 2000bb-2(1).
98. The claims under RFRA are brought against the BOP and Kane, Eichenlaub, Revell, Johns, and Stephens in their official capacities as BOP officials.
99. Defendants have impermissibly deprived, and continue to deprive, Plaintiffs of their right to the free exercise of religion, as secured by RFRA, by unlawfully imposing a substantial burden on Plaintiffs’ religious exercise. They have done this by failing to provide
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interpreters or other means for enabling Plaintiffs to effectively participate in weekly worship services.
100. Hearing inmates and detainees at FCI Butner are able to attend and participate effectively in religious services.
101. Defendants’ failure to provide Plaintiffs with an interpreter to ensure the same level of participation as hearing detainees is not in furtherance of any compelling governmental interest.
102. Defendants’ failure to comply with RFRA has resulted in harm to Plaintiffs, and will continue to result in harm to Plaintiffs, as Plaintiffs will continue to be in the BOP’s custody and will continue to attempt to participate in weekly worship services unless and until Defendants are ordered by this Court to make modifications to BOP policies, practices, and procedures pursuant to RFRA.
COUNT IX: VIOLATION OF THE CONSTITUTION OF THE UNITED STATES FREE EXERCISE OF RELIGION AGAINST ALL DEFENDANTS (FIRST AMENDMENT)
103. Under the First Amendment of the United States Constitution, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise therof.” U.S. Const. amend. I.
104. Defendants have impermissibly deprived, and continue to deprive, Plaintiffs of their First Amendment rights of free exercise of religion by discriminating against Plaintiffs because of their mode of speech and by substantially burdening religious exercise.
105. Hearing inmates and detainees at FCI Butner are able to attend and participate effectively in religious services.
106. Defendants have failed provide Plaintiffs with an interpreter necessary for them to
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effectively participate in any religious services offered at FCI Butner.
107. The assistance of an interpreter at normal religious services would provide an
adequate means for exercising their First Amendment right to exercise their religion.
108. Defendants’ failure to comply with the First Amendment of the United States
Constitution has resulted and will continue to result in harm to Plaintiffs, unless and until they
are ordered by this Court to modify their policies, practices and procedures.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request:
A. The Court adjudge and decree that Defendants, by the organizations, systems,
policies, practices and conditions described above, have violated and continue to violate Section
794 of the Rehabilitation Act, the Religious Freedom Restoration Act, and the Constitution of the
United States;
B. The Court enter such injunctive and/or declaratory relief pursuant to 28 U.S.C.
§§ 2201 and 2202, and Rules 57 and 65 of the Federal Rules of Civil Procedure against
Defendants and in favor of Plaintiffs as it deems appropriate to remedy past violations of the
laws of the United States and to prevent future violations of the same, including by ordering
Defendants to provide:
• qualified ASL interpreters to enable Plaintiffs to communicate effectively with medical and mental healthcare professionals, institution staff, educational and vocational instructors, religious leaders, work program managers and coordinators, and disciplinary officers;
• non-aural notification of emergencies or other important events and announcements, e.g., a vibrating pager, visual alarms and/or message boards;
• equal and full access to appropriate and effective telecommunication devices for the deaf, such as full and equal access to a videophone, TTY, and CapTel devices;
• fully functioning hearing aid batteries; and • consistent and harassment-free access to a television enabled with closed-
captioning, commensurate with the television privileges afforded other detainees.
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C. In the alternative, the Court enter such injunctive relief against Defendants to

effectuate a transfer of Plaintiffs to an appropriate facility with the proven ability to

accommodate deaf detainees such as Plaintiffs;

D. Judgment be entered against Defendants in favor of Plaintiffs for the costs of

litigation, including reasonable attorneys’ fees under 28 U.S.C. § 2412(d)(1)(A).

E. The Court retain jurisdiction of this matter until Defendants demonstrate that they

have fully complied with the orders of this Court, and that there is a reasonable assurance that

Defendants will continue to comply in the future absent continuing jurisdiction; and

F. The Court award Plaintiffs any further relief that the Court deems appropriate.

Dated: June 20, 2011

Respectfully Submitted,

/s/ Neil A. Riemann Neil A. Riemann (NC Bar No. 19258) PENRY RIEMANN PLLC 510 Glenwood Ave., Suite 319 Raleigh, NC 27603 (919) 833-9449 (telephone) (919) 833-9448 (facsimile) neil.riemann@penryriemann.com

-- and --

-- and --

/s/ Philip Fornaci Philip Fornaci E. Elaine Gardner Deborah Golden Washington Lawyers’ Committee for Civil Rights and Urban Affairs 11 Dupont Circle, N.W. Suite 400 Washington, D.C. 20036 T: 202-319-1000 F: 202-319-1010 philip_fornaci@washlaw.org elaine_gardner@washlaw.org deborah_golden@washlaw.org

/s/ Ian S. Hoffman Ian S. Hoffman Carolyn A. Pearce David B. Bergman ARNOLD & PORTER LLP 555 Twelfth Street, N.W. Washington, DC 20004 T: 202-942-5000 F: 202-942-5999 ian.hoffman@aporter.com carolyn.pearce@aporter.com david.bergman@aporter.com
Counsel for Plaintiffs Robert Boyd and Thomas Heyer

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 UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

__________________________________________

)

THOMAS HEYER

)

and ROBERT BOYD,

)

Plaintiffs,

)

)

v.

)

)

ERIC H. HOLDER, JR., in his official capacity )

as Attorney General of the United States;

)

)

UNITED STATES BUREAU OF PRISONS,

)

)

CHARLES E. SAMUELS, JR., in his official

)

Case No. 5:11-ct-03118-D

capacity as Acting Director of the United States )

Bureau of Prisons;

)

)

VERIFIED FIRST AMENDED

IKE EICHENLAUB, in his official

)

COMPLAINT

capacity as Regional Director of the

)

United States Bureau of Prisons

)

Mid-Atlantic Region;

)

)

and

)

)

SARA M. REVELL, Warden, FCC Butner, and )

TRACY W. JOHNS, Warden, FCI Butner

)

Medium,

)

)

Defendants.

)

)

__________________________________________)

Plaintiffs Thomas Heyer (“Mr. Heyer”) and Robert Boyd (“Mr. Boyd”) (collectively

“Plaintiffs”), by their undersigned counsel, file this First Amended Complaint against defendants

Eric H. Holder, Jr.; the United States Bureau of Prisons (“BOP”); Charles E. Samuels, Jr.; Ike

Eichenlaub; Sara M. Revell; and Tracy W. Johns (collectively “Defendants”), alleging as

follows:

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NATURE OF THE ACTION 1. This lawsuit arises from Defendants’ violation of federal law and the United States Constitution by refusing to provide Thomas Heyer and Robert Boyd – two deaf men detained at the BOP’s Federal Correctional Institution (“FCI”) in Butner, North Carolina – effective communication in the form of qualified American Sign Language (“ASL”) interpreters and other auxiliary aids necessary to accommodate their disability. Defendants’ illegal and discriminatory conduct has deprived – and continues to deprive – Mr. Heyer and Mr. Boyd of the ability to, inter alia, receive adequate and informed medical treatment, participate in institution disciplinary proceedings, effectively take part in any rehabilitative, educational, or religious programs, or communicate with those within and outside the institution. 2. Messrs. Boyd and Heyer are not prisoners. Following a recent hearing, Mr. Boyd has been civilly committed to the custody of the Attorney General under 18 U.S.C. § 4248 and is being detained at FCI Butner. Under this statutory scheme, Mr. Boyd’s continued detention is directly dependent upon ongoing mental health examinations and treatments designed to assess whether he is fit to return to society. Defendants have failed to provide any qualified interpreters or other auxiliary aids, even for these examinations and treatments, thereby denying Mr. Boyd a fair opportunity to fully participate in these rehabilitation programs, demonstrate any rehabilitation, and eventually obtain his release to freedom. Thus, Defendants’ actions permit them to detain Mr. Boyd indefinitely, not because Mr. Boyd would remain a danger to society but because, without effective communication, he would be unable to benefit from any treatment or demonstrate any rehabilitation to Defendants. 3. Mr. Heyer also has been detained under 18 U.S.C. § 4248 but awaits his civil commitment hearing, currently scheduled to take place on May 7, 2012. If Mr. Heyer is ordered
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committed, he will have the same pressing need for qualified interpreters and other auxiliary aids to enable him to fully participate in these rehabilitation programs, demonstrate his rehabilitation, and obtain his release to freedom.
4. Accordingly, Mr. Heyer and Mr. Boyd seek from the Court the accommodations to which they are legally entitled and which Defendants have failed to provide.
JURISDICTION AND VENUE 5. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 because this action arises under the Constitution and laws of the United States. 6. Venue is proper in this jurisdiction pursuant to 28 U.S.C. § 1391(e) because Plaintiffs and some or all of the Defendants reside in this district, and a substantial part of the events and omissions giving rise to Mr. Heyer and Mr. Boyd’s claims occurred in this district.
THE PARTIES A. Plaintiffs
1. Thomas Heyer 7. Thomas Heyer has been deaf since birth. 8. Mr. Heyer’s native language is American Sign Language (“ASL”), a complex language that employs signs made with the hands, facial expressions and body language. ASL is a language distinct and different from English—it is not simply English in hand signals. ASL has its own vocabulary and its own rules for grammar and syntax. Mr. Heyer requires a qualified ASL interpreter to communicate effectively with persons who do not know and use ASL. 9. Mr. Heyer’s ability to read lips is limited. In general, lip reading is a very difficult and unreliable form of communication. It is extremely difficult to lip-read English because only a small fraction of the sounds used in speaking are clearly visible on the mouth and many sounds
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appear identical on the lips. In addition to the difficulties in lip-reading, the ability to accurately lip-read is greatly affected by the speaker’s accent, facial bone structure, facial musculature, facial hair, lighting, distance from the lip reader, and other external factors.
10. In addition, reading and writing cannot be relied upon to provide effective communication with Mr. Heyer. Mr. Heyer did not complete high school and has an eighth grade education. As with most persons who become deaf before acquiring language, ASL is Mr. Heyer’s native language, and English is a second language for him. Therefore, Mr. Heyer’s English reading and writing skills are much lower than average, and his ability to communicate by reading and writing is profoundly compromised.
2. Robert Boyd 11. Robert Boyd, a Marine Corps veteran, has been profoundly deaf since 1975, when he lost his hearing as a result of his military service. Mr. Boyd is unable to understand speech, even with the use of hearing aids. Mr. Boyd uses hearing aids to help him hear the direction from which a sound is coming. However, the hearing aids do not work properly unless Mr. Boyd receives new hearing aid batteries when the old batteries weaken or die. 12. Mr. Boyd communicates by using ASL and requires a qualified ASL interpreter to communicate effectively with persons who do not know and use ASL. 13. Mr. Boyd’s ability to read lips is limited. And, for the reasons discussed above, lip reading is a difficult and unreliable form of communication. 14. For these reasons and others, Mr. Boyd does not effectively understand spoken English. Instead, Mr. Boyd requires a qualified ASL interpreter to communicate effectively with persons who do not know and use ASL. 15. Despite Mr. Boyd’s profound deafness, a member of Defendants’ staff – Mr.
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Taylor, who is Mr. Boyd’s unit counselor – has repeatedly told Mr. Boyd that he does not believe Mr. Boyd is deaf and has refused him effective communication in the form of a qualified ASL interpreter and other auxiliary aids on this ground.
B. Defendants 16. Eric H. Holder, Jr. (“Attorney General Holder”) is the Attorney General of the United States. Pursuant to 18 U.S.C. § 4248, persons who are declared “sexually dangerous” are committed the custody of Attorney General Holder. He is sued in his official capacity. 17. The BOP is the federal executive agency that, under the direction of the Attorney General, is in charge of the management and regulation of all federal penal and correctional institutions. 18 U.S.C. § 303(a)(1). The BOP is headquartered in Washington, D.C. FCI Butner, where Plaintiffs are detained, is a correctional complex controlled and operated by the BOP. 18. Charles E. Samuels, Jr. (“Director Samuels”) is the Director of the BOP, having been appointed on December 21, 2011. Director Samuels is responsible for the oversight and management of the BOP’s 115 institutions and for the safety and security of the more than 200,000 inmates and detainees under the agency’s jurisdiction, including the BOP’s policies and practices regarding the treatment of and services provided to disabled inmates and detainees. Acting Director Kane is aware of the BOP’s and FCI Butner’s policies and practices regarding disabled individuals and, more specifically, Defendants’ failure to provide Plaintiffs with effective communication in the form of qualified interpreters and other auxiliary aids. He is sued in his official capacity. 19. Ike Eichenlaub (“Regional Director Eichenlaub”) is the Regional Director of the BOP’s Mid-Atlantic Region. He is responsible for the development, approval, implementation, monitoring and evaluation of policies, operations and programs for the federal institutions and
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correctional complexes in the Mid-Atlantic Region, including FCI Butner. He is aware of the BOP’s and FCI Butner’s policies and practices regarding disabled individuals and, more specifically, Defendants’ failure to provide Plaintiffs with effective communication in the form of qualified interpreters and other auxiliary aids. He is sued in his official capacity.
20. Sara M. Revell (“Warden Revell”) and is the warden of Federal Correctional Complex (“FCC”) Butner. Tracy W. Johns (“Warden Johns”) is the warden of FCI Butner. Warden Revell and Warden Johns are responsible for the day-to-day operations of the Butner. They are aware of the BOP’s and FCI Butner’s policies and practices regarding disabled individuals and, more specifically, Defendants’ failure to provide Plaintiffs with effective communication in the form of qualified interpreters and other auxiliary aids in FCI Butner’s programs and services. They are sued in their official capacity.
21. At all times relevant to this action, Acting Director Kane, Regional Director Eichenlaub, Warden Revell, and Warden Johns, were acting pursuant to their authority as an official, agent, or employee of the United States.
STATEMENT OF FACTS A. Plaintiffs’ Civil Detention 22. Although they are being held in FCI Butner, Plaintiffs are not prisoners. Mr. Heyer and Mr. Boyd both have been previously convicted of federal crimes, but they have served their complete sentences. They are detained under the Adam Walsh Child Protection and Safety Act of 2006 (the “Act”), which permits the Director of the BOP or the Attorney General to certify that an individual in the BOP’s custody is “sexually dangerous.” See 18 U.S.C. § 4248. Following such certification, the release of the individual is stayed pending a mandatory hearing to determine whether the person is sexually dangerous. Id.
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23. In 2008, the BOP certified Mr. Heyer and Mr. Boyd as “sexually dangerous” persons under 18 U.S.C. § 4248, and were detained at FCI Butner.
24. Mr. Heyer’s civil commitment hearing is currently scheduled to occur on May 7, 2012.
25. On January 26 and 27, 2012, the Court held a hearing pursuant to 18 U.S.C. § 4248 to determine whether Mr. Boyd was a sexually dangerous person. Mr. Boyd was provided with a qualified interpreter for the entirety of the hearing. At the conclusion of the hearing, the Court determined Mr. Boyd to be sexually dangerous and ordered him committed to the custody and care of the Attorney General.
26. Under the Act, the Attorney General is required to “place [Mr. Boyd] for treatment in a suitable facility,” 18 U.S.C. § 4248(d), and “shall, before placing [Mr. Boyd] in a facility pursuant to the provisions of section . . . 4248, consider the suitability of the facility’s rehabilitation programs in meeting the needs of [Mr. Boyd].” Id. § 4247(i)(C).
27. A suitable facility is, at a minimum, a facility with adequate resources to provide care and treatment for Mr. Boyd, given the nature of Mr. Boyd’s characteristics.
28. Subsequent to the Court’s commitment order, the Attorney General has continued to detain Mr. Boyd at FCI Butner.
29. Under the Act, the director of FCI Butner is required to “prepare annual reports concerning the mental condition of [Mr. Boyd] and containing recommendations concerning the need for [Mr. Boyd’s] continued commitment. The reports shall be submitted to the court that ordered [Mr. Boyd’s] commitment to the facility . . . .” Id. § 4247(e). The director of FCC Butner also is required “notify [Mr. Boyd] of any available rehabilitation programs.” Id. § 4247(e)(2).
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30. Mr. Boyd is eligible to be released from the Attorney General’s custody when the director of FCI Butner 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.” Id. § 4248(e).
31. Under BOP regulations, when making a determination of dangerousness, BOP mental health professionals may consider, among other things, evidence “[e]stablished through interviewing and testing of [Mr. Boyd’s] denial or inability to appreciate the wrongfulness, harmfulness, or likely consequences of engaging” in such misconduct; “[s]tatement(s) of intent to re-offend,” “[a]dmission of inability to control behavior,” and the “successful completion of, or failure to successfully complete, a sex offender treatment program.” 28 C.F.R. § 549.95(b), (c), (d), (e).
32. These mental health and rehabilitation assessments and treatments, which are used to determine the necessity and duration of Mr. Boyd’s civil commitment, depend upon effective and ongoing communication with prison medical, psychiatric, and psychological staff. Defendants have denied such communication to Mr. Boyd.
33. Since his civil commitment hearing, Mr. Boyd has begun participating in Defendants’ treatment and rehabilitation program for persons committed under § 4248. This program entails at least fifteen hours per week of treatment sessions with Defendants’ and their staff. The purpose of these sessions is to rehabilitate Mr. Boyd and also to determine the degree of Mr. Boyd’s rehabilitation. Mr. Boyd has repeatedly requested that qualified interpreters be present for these treatment sessions. Defendants have failed to provide such interpreters. Accordingly, Mr. Boyd does not understand what has been and what is being communicated to
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him during these treatment sessions. During these sessions, Mr. Boyd is also frequently given writing assignments, but cannot be certain he understands the verbal directions.
34. Additionally, Defendants are unable to apply certain medical and psychological tests to Mr. Boyd, even though those tests are applied to other persons committed under § 4248, because those tests require the patient to listen to audio recordings through headphones.
35. Though Mr. Heyer has not yet had a civil commitment hearing, Defendants have provided no indication that, if he were ordered committed following his hearing on May 7, 2012, Defendants would provide him with qualified interpreters or any other auxiliary aids in connection with Defendants’ treatment and rehabilitation program under § 4248.
B. Medical Treatment and Rehabilitation 36. Prior to their civil commitment hearings, Mr. Heyer and Boyd were encouraged to attend Multidisciplinary Treatment Team (“MTT”) meetings to discuss available programs and rehabilitation progress. Defendants have failed to provide Mr. Heyer or Mr. Boyd with a qualified interpreter during these meetings. For example, at a September 21, 2010, meeting with his MTT, Mr. Heyer left the meeting, at which no interpreter was provided, because he could not effectively participate. However, Butner staff have communicated to other detainees that Mr. Heyer’s non-attendance may be held against him at subsequent proceedings. Mr. Boyd also believes that there will be mandatory team meetings in his § 4248 treatment program that he will be required to attend and where a qualified interpreter will be necessary in order to ensure his effective participation. 37. Mr. Boyd receives frequent medical treatment at FCI Butner for certain dermatological conditions, and Defendants have not provided a qualified ASL interpreter to accompany him during these medical appointments. Forced to rely on lip-reading, Mr. Boyd’s
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medical appointments are further hindered due to his inability to engage in even limited communication with non-native English-speaking doctors, whose accents compound the inherent difficulties of lip-reading.
38. On or about December 7, 2011, Mr. Boyd discovered that he was suffering from Bell’s Palsy, which causes nerve damage and paralysis in the face. Before he was diagnosed with this condition, the BOP medical staff examined Mr. Boyd to determine if he had suffered a stroke. In each of his appointments, Defendants failed to provide Mr. Boyd a qualified interpreter.
39. Mr. Heyer also receives medical treatment at FCI Butner for his high blood pressure and high cholesterol, and Defendants have not provided a qualified ASL interpreter to accompany him during these medical appointments. In addition, because he is not provided an interpreter at these appointments, Mr. Heyer does not know when and how often he must refill his prescription medications. For example, during a medical appointment on February 8, 2011, the doctor reprimanded Mr. Heyer for failing to get refills for his blood pressure medication, but Mr. Heyer did not understand the doctor’s previous instructions for taking the medications because he was not provided with an interpreter at that prior visit. Mr. Heyer therefore went without critical medications due to the failure of Defendants to provide him with a qualified ASL interpreter at his medical appointments. In addition, doctors at Butner have altered Mr. Heyer’s medication dosages on occasion, without the benefit of actually communicating with their patient.
40. On or about the evening of November 28, 2011, Mr. Heyer suffered from a seizure in his cell. Mr. Heyer’s roommate alerted the officer on duty, who took no action beyond telling Mr. Heyer and his roommate that Mr. Heyer “looked fine” to him. As a result of the
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seizure, Mr. Heyer’s tongue was bitten and swollen. When Defendants eventually permitted Mr. Heyer to see a doctor on January 10, 2012—more than one month after his seizure—Defendants failed to provide Mr. Heyer with a qualified interpreter.
41. On or about January 12, 2012 Mr. Heyer suffered a second seizure. Mr. Heyer requested a qualified interpreter accompany him to a doctor’s appointment. Again, Defendants refused to provide one.
42. On or about the week of January 23, 2012, Mr. Heyer had two doctor’s appointments in which he requested a qualified interpreter. On both occasions, Defendants refused to provide one. Mr. Heyer did not understand the doctors’ statements or instructions during these appointments.
43. In connection with his treatment for seizures, Defendants performed a CT scan on Mr. Heyer, but provided him no qualified interpreter while conducting the scan. Additionally, Defendants have never informed Mr. Heyer of the results of the CT scan.
44. On or around March 5, 2012, Defendants provided Mr. Heyer prescription medication for his seizures, but failed to provide Mr. Heyer with a qualified interpreter to explain how to use the medication. Accordingly, Mr. Heyer is uncertain if he is taking the medication properly.
45. To date, as a result of Defendants’ failure to provide Mr. Heyer with a qualified interpreter, Mr. Heyer does not know why he has suffered from seizures or whether they will continue.
46. Under the foregoing circumstances, neither Mr. Heyer nor Mr. Boyd are able to understand their medical treatment or provide informed consent to medical treatments and procedures.
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47. Mr. Heyer and Mr. Boyd also receive dental treatment at FCI Butner, but they are not provided with a qualified ASL interpreter to accompany them during these dental appointments. For example, Mr. Boyd last visited the dentist the week of February 7, 2011, to address a tooth infection and extraction. He was not provided with an interpreter at this visit, and no one accompanied him to the appointment. Similarly, Mr. Heyer recently went to the dentist for treatment for a broken tooth, but was provided no interpreter and did not understand anything the dentist was saying to him. In addition to the normal difficulties surrounding lip-reading, Mr. Heyer and Mr. Boyd were both completely unable to read the dentist’s lips due to the strong examination light and the fact that the dentist wore a mask. Again, neither Mr. Heyer nor Mr. Boyd could effectively understand their dental treatment or consent to dental procedures under these circumstances.
48. Additionally, Mr. Boyd has requested a qualified ASL interpreter to accompany him during his ophthalmology appointments, and Defendants have refused to provide one.
2. Disciplinary Proceedings 49. Plaintiffs were not provided an interpreter for the registration and orientation programs upon their arrival in FCI Butner, nor are they provided an interpreter for periodic “Town Hall Meetings,” which cover rules and other matters. As a result, Plaintiffs have had and continue to have difficulty understanding the rules and regulations of FCI Butner. 50. As a result of this lack of knowledge about the facility rules and regulations, Mr. Heyer and Mr. Boyd have been subject to disciplinary proceedings and called before the Unit Disciplinary Committee (“UDC”) on several separate occasions for alleged violations of the facility’s rules and regulations. However, despite specific requests from both Mr. Heyer and Mr. Boyd, neither have been provided with a qualified ASL interpreter at these proceedings. The
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proceedings are before the unit counselor, Mr. Taylor, and the case manager, Ms. Weaver. Mr.
Taylor has even informed Mr. Boyd on several occasions that he does not believe Mr. Boyd is
deaf.
51. As a result of these disciplinary proceedings, certain of Plaintiffs’ privileges,
including telephone and commissary privileges, have been taken away for periods of time
ranging from two to six months.
3. Communication With Those Outside FCI Butner
52. Plaintiffs would like to communicate with people outside of FCI Butner, such as
their attorneys, family, and friends, but their access to appropriate telecommunications devices is
repeatedly restricted or denied.
53. Plaintiffs cannot use a telephone in the same way as a hearing person. Instead,
they require a TTY, a videophone, or a CapTel phone.
a. A TDD or TTY (hereinafter “TTY”) allows people to send written messages back and forth to each other by telephone. When both users have TTYs, they can communicate directly over telephone lines. When one person does not have a TTY, a Telecommunications Relay Service (“TRS”) operator reads aloud the written messages from the TTY user and transcribes the non-TTY user’s verbal response. TRS services are toll free. Though a TTY is a helpful communication tool, it ultimately relies on the user’s ability to communicate in written English and, in all events, is a much more time-intensive communication tool than the telephone. The TTY is 60-year-old technology, and has been for the most part supplanted by the videophone. Most deaf individuals no longer have TTYs, and communicate on telephone solely by videophone.
b. A videophone is a telephone with a camera and screen for visual, realtime communication. Thus, a videophone is a far more effective auxiliary aid for deaf individuals like Plaintiffs who use ASL as a primary means of communication, both because it depends upon ASL skills instead of written skills for communication, and because without a videophone there is no way to contact most deaf individuals outside the institution who no longer own TTYs. Like the TRS system, there is now a Video Relay Service (“VRS”), so that communication can be accomplished by videophone between an ASL user and a hearing, nonASL user through a relay operator who is a qualified ASL interpreter. However,
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under the current system one cannot place a call from a TTY to a videophone through any relay service. c. A CapTel phone is an inexpensive device that allows the user to call another party and speak verbally, while the answering party responses are transcribed and displayed through a captioning service. The CapTel thus permits deaf individuals like Mr. Boyd to use their voice to send messages, while using their eyes to read the written English responses. 54. The Maryland Unit has only one TTY device, and does not have any videophones or CapTel phones. The single TTY device is located in the office of the unit counselor, Mr. Taylor, and therefore can be accessed only by asking Mr. Taylor or the case manger, Ms. Weaver, to unlock the office. Then, either Mr. Taylor or Ms. Weaver must dial the number of the person to whom Plaintiffs wish to communicate. If Mr. Taylor or Ms. Weaver have left the office or are otherwise unavailable, Plaintiffs have no way of accessing the TTY device. 55. Moreover, Plaintiffs are not permitted to make direct TTY to TTY calls on the Maryland Unit TTY. All TTY calls must be made to a Telecommunications Relay System, which is designed to relay TTY calls to hearing persons. Therefore Plaintiffs are completely unable to place calls to other deaf persons outside the institution, even if these persons still had TTYs. 56. Plaintiffs’ access to the lone TTY device in the Maryland Unit is regularly restricted or denied, and their access to the TTY device does not provide them an equal opportunity to access telephones as is provided to other detainees. Other detainees are permitted up to 300 minutes of phone time per month, while Mr. Heyer and Mr. Boyd are given access to the TTY phone for significantly shorter periods of time. While other detainees are permitted to use the telephone for calls from 6:00 a.m. until 11:30 p.m., seven days a week, Plaintiffs are restricted to using the TTY device on weekdays from 7:30 a.m. until 3:30 p.m. Finally, while
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other detainees need not ask permission to use the phone and can use the phone several times a day, Plaintiffs must continuously ask Mr. Taylor or Ms. Weaver to unlock the office in order to use the TTY, and those individuals consistently deny them access altogether without justification. Furthermore, if the counselors are away for training or on vacation, Plaintiffs are unable to access the TTY at all.
57. Mr. Heyer is especially restricted in his ability to communicate with friends and family outside the institution. Writing letters is not an effective means of communication for him, and TTY communication poses similar problems for him, due to his lack of English language competency.
58. In addition, Mr. Heyer has deaf friends whom he is unable to telephone due to the fact that they do not own TTYs, and instead use videophones. Because Mr. Heyer does not have access to a videophone, he is unable to stay in communication with his deaf friends outside the institution and the deaf community in general.
59. Regular access to a videophone with relay technology, and a CapTel for Mr. Boyd, would allow Plaintiffs to remain in contact with their family, friends, and attorneys outside of FCI Butner.
4. Other Necessary Accommodations Denied 60. The facilities at FCI Butner, including Plaintiffs’ rooms, lack visual alarms, vibrating pagers, vibrating watches, vibrating bed devices, or message boards that would alert Plaintiffs to an emergency, such as a fire or lockdown. 61. Plaintiffs are not alerted to announcements made over the public address speaker system, such as meal announcements, count calls, or meetings. A vibrating pager and message board where announcements are posted would allow them to receive these messages.
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62. Additionally, vibrating watches and vibrating bed devices would provide nonaural alarm notifications and permit Plaintiffs to timely attend scheduled activities at FCI Butner. Defendants have failed to provide these devices.
63. Mr. Boyd’s hearing aid batteries, though used properly, often significantly weaken and become unusable after a period of days or even hours. Despite Mr. Boyd’s requests, Defendants have not provided well-operating hearing aid batteries to him on an as-needed basis. Mr. Boyd is often provided with old and corroded hearing aid batteries that only last a few minutes. As a result, Mr. Boyd’s hearing aids are often useless for long periods of time or have been damaged because of the corrosive batteries provided.
64. Plaintiffs would like to attend religious services offered at FCI Butner. Mr. Boyd consistently attended religious services at prior corrections institutions where a volunteer interpreter was consistently provided. However, no interpreter is provided for the services at FCI Butner, making it impossible for Plaintiffs to effectively participate in those services.
65. Mr. Heyer attends a GED preparation course offered at FCI Butner, but because of Defendants’ failure to provide him with an interpreter at the class, his participation is limited because he cannot ask the course assistant any questions and cannot hear when the time limits for sample examinations are finished.
66. Plaintiffs are unable to access goods sold in the commissary because they are handed through a mirrored window, and they cannot interact with the person behind the mirrored window in any fashion.
67. In the area of FCI Butner that houses persons committed pursuant to § 4248, where Mr. Boyd is housed, there is no consistent access to a closed-captioned television. Without closed captions, Mr. Boyd cannot understand television programming.
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68. Mr. Boyd has requested and Defendants have failed to provide a device called an Icom, which is made to work in conjunction with his hearing aids. The Icom sends a signal from a television unit or any other audio device directly into Mr. Boyd’s hearing aids. An Icom device would permit Mr. Boyd to better hear sounds from the television units or other audio devices inside the facilities at FCI Butner. The Icom device, combined with closed captioning on the television units, would permit Mr. Boyd to better understand television programming and other audio recordings.
5. Administrative Grievance Procedures 69. On at least two occasions, Defendants told Mr. Boyd that BOP’s administrative remedies apply only to prisoners and do not apply to civil detainees. Defendants informed Mr. Boyd that, if he filed an administrative grievance, it would likely be discarded and not responded to. 70. Nevertheless, Mr. Boyd attempted to use the administrative process on at least one occasion to assert his right to a qualified ASL interpreter, to no avail. On or about September 7, 2010, Mr. Boyd filed a Request for Administrative Remedy (the “Request”) in which he asserted, inter alia, that he was not provided a qualified ASL interpreter during an disciplinary proceeding. 71. Defendant Warden Johns denied Mr. Boyd’s Request on September 14, 2010. 72. On or about November 1, 2010, Mr. Boyd appealed Warden Johns’ denial to the BOP Regional Office. On March 31, 2011, the BOP Regional Director—Defendant Ike Eichenlaub—denied Mr. Boyd’s appeal. Defendant Eichenlaub’s only written response to the issue of Mr. Boyd’s deafness and Defendants’ failure to provide a qualified ASL interpreter was: “According to the record and UDC Chairman when contacted, there were no communication concerns or issues identified during the discipline process, and we find no reason to elaborate
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further.” 6. Inmate Companion Person
73. Another detainee—Mr. Andrew Sheradin—has occasionally been assigned by Defendants to attempt to assist Mr. Heyer communicate with others in FCI Butner.
74. Defendants have paid Mr. Sheradin to serve as an Inmate Companion Person to Mr. Heyer.
75. Mr. Sheradin, however, is not a qualified, certified, or licensed ASL interpreter. Mr. Sheradin’s sign language skills are extremely rudimentary and wholly deficient to provide Mr. Heyer or Mr. Boyd with an effective means of communication.
76. Mr. Sheradin has no formal education or training in sign language. In fact, the only sign language skills Mr. Sheradin possesses were learned from the time he spent with Plaintiffs at FCI Butner.
77. Though Mr. Sheradin was at one point Mr. Heyer’s roommate, Mr. Sheradin has since been moved to another area in the unit. Accordingly, Mr. Sheradin interacts with Mr. Heyer on a less regular basis.
78. Mr. Heyer and Mr. Boyd object to disclosure of their private medical information to Mr. Sheradin, a fellow detainee, who is under no obligation to keep confidential any information communicated during Plaintiffs’ medical appointments.
CLAIMS FOR RELIEF COUNT I: DISCRIMINATION ON THE BASIS OF A DISABILITY IN VIOLATION OF THE REHABILITATION ACT AGAINST ALL
DEFENDANTS (29 U.S.C. §§ 794 ET SEQ. AND 5 U.S.C. § 703) 79. Plaintiffs reallege and incorporate by reference each and every allegation above as if fully set forth herein.
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80. The Rehabilitation Act of 1973, 29 U.S.C. §§ 794 et seq. (hereinafter “Rehabilitation Act”), provides that “[n]o otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.”
81. Plaintiffs are deaf and, as such, are qualified individuals with a disability within the meaning of the Rehabilitation Act, 29 U.S.C. § 705(20).
82. Plaintiffs are otherwise qualified to receive informed medical treatments offered to other inmates and detainees at FCI Butner, and eligible to participate in commensurate educational, religious, rehabilitation, vocational, and all other programs provided to others at that facility.
83. The BOP is an executive agency within the meaning of 29 U.S.C. § 794(a). 84. The operations of the BOP, including the departments, agencies, programs and instrumentalities at FCI Butner such as Health Services, Psychology Services, Sex Offender Management and Treatment, Drug Abuse Treatment, the Education Department and its associated programs, Vocational and Occupational Training programs, Inmate Skills Development Initiative, and work programs such as Federal Prison Industries, are “program[s] or activit[ies] conducted by an Executive Agency” within the meaning of 29 U.S.C. §§ 794(b)(1)(A)-(B) and/or (b)(2)(B). 85. At all times relevant to this action, the Rehabilitation Act was in full force and effect in the United States, and Plaintiffs had and have a right not to be subjected to discrimination on the basis of their disability by Defendants. 29 U.S.C. § 794(a).
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86. The purpose of the Rehabilitation Act is to ensure that no “qualified individual with a disability . . . shall, solely by reason of [] disability, be excluded the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency . . . .” 29 U.S.C. § 794(a).
87. The Department of Justice’s regulations implementing the Rehabilitation Act clarify that the BOP and all its activities are “program[s] or activit[ies] conducted by an Executive Agency” of the United States government, and that “the agency shall furnish appropriate auxiliary aids where necessary to afford a handicapped person an equal opportunity to participate in, and enjoy the benefits of, a program or activity conducted by the agency.” 28 C.F.R. § 39.160(a)(1). The Department of Justice’s regulations implementing the Rehabilitation Act additionally mandate that “[i]n determining what type of auxiliary aid is necessary, the agency shall give primary consideration to the requests of the handicapped person.” 28 C.F.R. § 39.160(a)(1)(i) (emphasis added).
88. Auxiliary aids include, but are not limited to, interpreters and telecommunication devices for deaf persons. 28 C.F.R. § 39.103.
89. Defendants have discriminatorily impaired and continue to discriminatorily impair Plaintiffs’ ability to communicate effectively with medical staff and healthcare providers, including physicians; educational and vocational instructors and their fellow students; work program managers and coordinators and their fellow employees; correctional officers; and other members of the institution staff. Furthermore, Defendants have excluded and continue to exclude Plaintiffs from religious, educational, and vocational programs, telephone services, access to functioning hearing aid batteries, access to an Icom device for television viewing, and
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institution-wide alarms and announcements. Defendants have done this by failing to provide appropriate auxiliary aids to Plaintiffs in violation of the Rehabilitation Act.
90. Defendants’ failure to provide Plaintiffs qualified interpreters and appropriate auxiliary aids to ensure an effective means of communication has denied and continues to deny Plaintiffs, on the basis of their deafness, the same access to Defendants’ services, benefits, activities, programs and privileges as is afforded to hearing individuals.
91. The failure to provide qualified interpreters and appropriate auxiliary aids and services to ensure an effective means of communication, and the failure to provide comparable access to services, benefits, activities, programs and privileges are policies, regular practices and/or customs of Defendants. These failures are ongoing and continue to this date.
92. Defendants have continually failed to provide Plaintiffs with a qualified ASL interpreter and other reasonable auxiliary aids for their deafness resulting in Plaintiffs being:
 unable to communicate effectively with healthcare providers, raise medical issues, understand the treatments and medications they prescribe, or discuss mental health problems;
 excluded from participating in the same religious, educational, vocational, and rehabilitation classes and work programs as hearing detainees;
 deprived of knowledge of institution-wide safety or emergency announcements; deprived of knowledge of institution counts, meals and other important daily activities;
 unable to communicate effectively with correctional officers and staff members;  subject to disciplinary action stemming from Defendants’ refusal to accommodate
their deafness;  deprived of meaningful participation in disciplinary proceedings;  prevented from obtaining consistent access to new hearing aid batteries;  prevented from obtaining consistent access to closed-captioned televisions; and  prevented from contacting family, friends, and their counsel. 93. As a proximate result of Defendants’ violations of the Rehabilitation Act,
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Plaintiffs have suffered, and continue to suffer, discrimination, unequal treatment, exclusion (including exclusion from Defendants’ services, benefits, activities, programs and privileges), financial loss, loss of dignity, frustration, humiliation, emotional pain and suffering, anxiety, trauma, embarrassment, unnecessary loss of rights and privileges, including unnecessary disciplinary measures, and serious injury to their health and mental health, including the injuries specified herein.
94. Defendants’ failure to comply with the Rehabilitation Act has resulted in harm to Plaintiffs, and Defendants are liable to Plaintiffs for harms suffered. Defendants’ failure to comply with the Rehabilitation Act will continue to result in harm to Plaintiffs, as Plaintiffs will be in the custody or supervision of the BOP and will continue to seek to use the services, benefits, activities, programs and privileges provided by Defendants and to which they are entitled. This harm will continue unless and until Defendants are ordered by this Court to modify their policies, practices and procedures as demanded by the Rehabilitation Act.
COUNT II: VIOLATION OF THE CONSTITUTION OF THE UNITED STATES – DUE PROCESS AGAINST ALL DEFENDANTS
(FIFTH AMENDMENT – DEPRIVATION OF LIBERTY IN CIVIL COMMITMENT) Asserted By Plaintiff Boyd Against All Defendants and,
In the Event Mr. Heyer is Committed Under § 4248, by Mr. Heyer Against All Defendants 95. Plaintiffs reallege and incorporate by reference each and every allegation above as
if fully set forth herein. 96. Under the Fifth Amendment of the Constitution of the United States, “[n]o person
. . . shall . . . be deprived of life, liberty, or property, without due process of law.” 97. Civil commitment constitutes a significant deprivation of liberty that requires due
process protection. 98. Plaintiffs are entitled to due process protections through the duration of their civil
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commitment under 18 U.S.C. § 4248 because, inter alia, Plaintiffs’ ongoing commitment under § 4248 depends directly on the results of various medical and mental health examinations of Plaintiffs conducted by Defendants. See, e.g., 18 U.S.C. 4248(e); 28 C.F.R. § 549.95(b), (c), (d), (e).
99. Defendants have violated Plaintiffs’ due process rights by systematically denying Plaintiffs the means of effective communication, including the services of a qualified ASL interpreter, in the context of the treatment programs for persons committed pursuant to § 4248. Effective communication is necessary to allow Plaintiffs to understand and communicate with the very BOP staff members and mental health providers who will determine the duration and necessity of Plaintiffs’ detention. Without qualified ASL interpreters and other auxiliary aids, Plaintiffs are effectively deprived of the procedural safeguards guaranteed to them through the statutory and administrative commitment scheme.
100. Defendants’ failure to comply with the Fifth Amendment has resulted in harm to Plaintiffs, and will continue to do so, as Plaintiffs will remain in the custody of the Attorney General and will continue to be subjected to these conditions unless and until Defendants are ordered by this Court to modify their policies, practices and procedures pursuant to the Fifth Amendment.
COUNT III: VIOLATION OF THE CONSTITUTION OF THE UNITED STATES DUE PROCESS AGAINST ALL DEFENDANTS
(FIFTH AMENDMENT – RIGHT TO QUALIFIED INTERPRETER AT DISCIPLINARY HEARINGS)
101. Plaintiffs reallege and incorporate by reference each and every allegation above as if fully set forth herein.
102. Under the Fifth Amendment of the Constitution of the United States, “[n]o person
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. . . shall . . . be deprived of life, liberty, or property, without due process of law.” 103. The Fifth Amendment guarantees Plaintiffs notice and a meaningful opportunity
to be heard in connection with institution disciplinary proceedings. 104. In addition to failing to adequately inform Plaintiffs of the rules applicable in the
Maryland Unit, Defendants have repeatedly refused to provide Plaintiffs qualified sign language interpreters for disciplinary hearings stemming from Plaintiffs’ alleged violation of those rules, and imposed various punishments on Plaintiffs when it has been determined that such rules were violated. Defendants’ refusal to provide qualified interpreters at these hearings has deprived Plaintiffs of notice and a meaningful opportunity to be heard in connection with their disciplinary proceedings.
105. Defendants’ failure to comply with the Fifth Amendment has resulted and will continue to result in harm to Plaintiffs, unless and until they are ordered by this Court to modify their policies, practices and procedures.
COUNT IV: VIOLATION OF THE CONSTITUTION OF THE UNITED STATES – DUE PROCESS AGAINST ALL DEFENDANTS
(FIFTH AMENDMENT – INFORMED CONSENT TO MEDICAL TREATMENT) 106. Plaintiffs reallege and incorporate by reference each and every allegation above as
if fully set forth herein. 107. Under the Fifth Amendment of the Constitution of the United States, “[n]o person
. . . shall . . . be deprived of life, liberty, or property, without due process of law.” 108. The Fifth Amendment guarantees the right to be free from unwanted medical
treatment, including the right to be treated only with one’s informed consent. 109. Defendants have systematically denied Plaintiffs an effective means of
communication, including the services of a qualified ASL interpreter, which are necessary to
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allow Plaintiffs to understand and communicate with medical staff and healthcare providers, including mental health professionals and pharmacists. Without these auxiliary aids, Plaintiffs were and are unable to understand, and thus give their informed consent to, any and all medical treatment to which they have been subjected by Defendants and their employees.
110. Defendants are aware of plaintiffs’ disability and need for a qualified interpreter at medical treatments.
111. By depriving plaintiffs of a qualified interpreter during their medical treatments, defendants have acted with deliberate indifference to plaintiffs’ rights.
112. Defendants’ failure to comply with the Fifth Amendment has resulted in harm to Plaintiffs and will continue to do so, as Plaintiff Boyd will remain in the custody of the Attorney General (and Plaintiff Heyer will remain in the custody of the BOP pending his hearing under § 4248) and will continue to be subjected to these conditions unless and until Defendants are ordered by this Court to modify their policies, practices and procedures pursuant to the Fifth Amendment.
COUNT V: VIOLATION OF THE CONSTITUTION OF THE UNITED STATES – DUE PROCESS AGAINST ALL DEFENDANTS
(FIFTH AMENDMENT – RIGHT TO PRIVACY IN MEDICAL TREATMENT) 113. Plaintiffs reallege and incorporate by reference each and every allegation above as
if fully set forth herein. 114. Under the Fifth Amendment of the Constitution of the United States, “[n]o person
. . . shall . . . be deprived of life, liberty, or property, without due process of law.” 115. The Fifth Amendment guarantees Plaintiffs a constitutional right to privacy in
medical treatment. 116. Defendants’ use of other inmates or detainees to interpret for Plaintiffs during
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medical and mental health appointments violates Plaintiffs’ constitutional right to privacy in medical treatment. Such inmate or detainee interpreters have no obligation to keep confidential any information communicated during Plaintiffs’ medical or mental health appointments. Moreover, this breach of Plaintiffs’ privacy rights is especially problematic in the institution setting where an inmate or detainee’s possession of confidential information about another inmate or detainee can be used in threatening and dangerous ways.
117. Defendants are aware of plaintiffs’ disability and need for a qualified interpreter at medical treatments who will be obligated to keep this medical information confidential.
118. By depriving plaintiffs of a qualified interpreter during their medical treatments, defendants have acted with deliberate indifference to plaintiffs’ rights.
119. Defendants’ failure to comply with the Fifth Amendment has resulted in harm to Plaintiff and will continue to do so, as Plaintiff Boyd will remain in the custody of the Attorney General (and Plaintiff Heyer will remain in the custody of the BOP pending his hearing under § 4248)and will continue to be subjected to these conditions unless and until Defendants are ordered by this Court to modify their policies, practices and procedures pursuant to the Fifth Amendment.
COUNT VI: VIOLATION OF THE CONSTITUTION OF THE UNITED STATES – DUE PROCESS AGAINST ALL DEFENDANTS
(FIFTH AMENDMENT – RIGHT TO ADEQUATE MEDICAL TREATMENT) 120. Plaintiffs reallege and incorporate by reference each and every allegation above as
if fully set forth herein. 121. Under the Fifth Amendment of the Constitution of the United States, “[n]o person
. . . shall . . . be deprived of life, liberty, or property, without due process of law.” 122. The Fifth Amendment guarantees Plaintiffs a right to reasonably adequate medical
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care and treatment, including the right to any necessary assistive devices for Plaintiffs’ disabilities.
123. Defendants have failed to provide Mr. Boyd with batteries for his hearing aids that are necessary to help Mr. Boyd hear the direction of certain sounds, thereby violating Mr. Boyd’s right to adequate medical care and assistive devices necessary for his disability.
124. Defendants are aware of Mr. Boyd’s disability and need for these assistive devices.
125. By depriving Mr. Boyd of these assistive devices, defendants have acted with deliberate indifference to Mr. Boyd’s needs.
126. Defendants’ failure to comply with the Fifth Amendment has resulted in harm to Plaintiff and will continue to do so, as Plaintiff Boyd will remain in the custody of the Attorney General (and Plaintiff Heyer will remain in the custody of the BOP pending his hearing under § 4248)and will continue to be subjected to these conditions unless and until Defendants are ordered by this Court to modify their policies, practices and procedures pursuant to the Fifth Amendment.
COUNT VII: VIOLATION OF THE CONSTITUTION OF THE UNITED STATES DUE PROCESS AGAINST ALL DEFENDANTS
(FIFTH AMENDMENT – RIGHT TO A REASONABLY SAFE ENVIRONMENT) 127. Plaintiffs reallege and incorporate by reference each and every allegation above as if fully set forth herein. 128. Under the Fifth Amendment of the Constitution of the United States, “[n]o person . . . shall . . . be deprived of life, liberty, or property, without due process of law.” 129. The Fifth Amendment guarantees Plaintiffs a right to a reasonably safe living environment.
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130. Defendants have failed to provide adequate visual alarms, pagers, or message boards that would alert Plaintiffs to an emergency, such as a fire or lockdown, thereby violating Plaintiffs’ right to a reasonably safe living environment.
131. Defendants are aware of plaintiffs’ disability and need for a these emergency alerts.
132. By depriving plaintiffs of these emergency alerts, defendants have acted with deliberate indifference to plaintiffs’ rights.
133. Defendants’ failure to comply with the Fifth Amendment poses an unreasonable risk of future harm to Plaintiffs’ and will continue to do so, as Plaintiff Boyd will remain in the custody of the Attorney General (and Plaintiff Heyer will remain in the custody of the BOP pending his hearing under § 4248) and will continue to be subjected to these conditions unless and until Defendants are ordered by this Court to modify their policies, practices and procedures pursuant to the Fifth Amendment.
COUNT VIII: VIOLATION OF THE CONSTITUTION OF THE UNITED STATES FREEDOM OF SPEECH AGAINST ALL DEFENDANTS (FIRST AMENDMENT)
134. Plaintiffs reallege and incorporate by reference each and every allegation above as if fully set forth herein.
135. Defendants have further impermissibly deprived, and continue to deprive, Plaintiffs of their First Amendment rights of freedom of speech by failing to provide them with telecommunication equipment necessary for them to communicate with family and friends outside of FCI Butner.
136. Hearing inmates and detainees at FCI Butner have telecommunication equipment that allows communication with people outside of FCI Butner.
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137. Defendants’ refusal to provide Plaintiffs with telecommunication equipment to ensure the same level of access as hearing detainees serves no legitimate or compelling need and is not rationally related or narrowly tailored to any identified penological or rehabilitative need.
138. Because Plaintiffs are housed in a remote area far from their families and friends, and do not communicate effectively in written or spoken English, written correspondence and personal visits are not adequate alternatives for exercising their First Amendment right to communicate with friends and family.
139. Provision of appropriate telecommunication equipment to Plaintiffs would have negligible effects, if any, on other inmates, detainees, and prison employees at FCI Butner.
140. Defendants’ failure to comply with the First Amendment of the United States Constitution has resulted and will continue to result in harm to Plaintiffs, unless and until they are ordered by this Court to modify their policies, practices and procedures.
COUNT IX: VIOLATION OF THE RELIGIOUS FREEDOM RESTORATION ACT AGAINST ALL DEFENDANTS (42 U.S.C. §§ 2000bb ET SEQ.)
141. Plaintiffs reallege and incorporate by reference each and every allegation above as if fully set forth herein.
142. Governments may not impose substantial burdens on the religious exercises of institutionalized persons even if the burden results from a rule of general applicability. 42 U.S.C. § 2000bb-1(a).
143. As a branch, department, agency, or instrumentality of the United States, BOP is a government within the meaning of the Religious Freedom Restoration Act (“RFRA”). 42 U.S.C. § 2000bb-2(1).
144. The claims under RFRA are brought against the BOP and Kane, Eichenlaub,
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Revell, Johns, and Stephens in their official capacities as BOP officials. 145. Defendants have impermissibly deprived, and continue to deprive, Plaintiffs of
their right to the free exercise of religion, as secured by RFRA, by unlawfully imposing a substantial burden on Plaintiffs’ religious exercise. They have done this by failing to provide interpreters or other means for enabling Plaintiffs to effectively participate in weekly worship services.
146. Hearing inmates and detainees at FCI Butner are able to attend and participate effectively in religious services.
147. Defendants’ failure to provide Plaintiffs with an interpreter to ensure the same level of participation as hearing detainees is not in furtherance of any compelling governmental interest.
148. Defendants’ failure to comply with RFRA has resulted in harm to Plaintiffs, and will continue to result in harm to Plaintiffs, as Plaintiffs will continue to be in the BOP’s custody and will continue to attempt to participate in weekly worship services unless and until Defendants are ordered by this Court to make modifications to BOP policies, practices, and procedures pursuant to RFRA.
COUNT X: VIOLATION OF THE CONSTITUTION OF THE UNITED STATES FREE EXERCISE OF RELIGION AGAINST ALL DEFENDANTS (FIRST AMENDMENT)
149. Under the First Amendment of the United States Constitution, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise therof.” U.S. Const. amend. I.
150. Defendants have impermissibly deprived, and continue to deprive, Plaintiffs of their First Amendment rights of free exercise of religion by discriminating against Plaintiffs
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because of their mode of speech and by substantially burdening religious exercise. 151. Hearing inmates and detainees at FCI Butner are able to attend and participate
effectively in religious services. 152. Defendants have failed provide Plaintiffs with an interpreter necessary for them to
effectively participate in any religious services offered at FCI Butner. 153. The assistance of an interpreter at normal religious services would provide an
adequate means for exercising their First Amendment right to exercise their religion. 154. Defendants’ failure to comply with the First Amendment of the United States
Constitution has resulted and will continue to result in harm to Plaintiffs, unless and until they are ordered by this Court to modify their policies, practices and procedures.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request: A. The Court adjudge and decree that Defendants, by the organizations, systems, policies, practices and conditions described above, have violated and continue to violate Section 794 of the Rehabilitation Act, the Religious Freedom Restoration Act, and the Constitution of the United States; B. The Court enter such injunctive and/or declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202, and Rules 57 and 65 of the Federal Rules of Civil Procedure against Defendants and in favor of Plaintiffs as it deems appropriate to remedy past violations of the laws of the United States and to prevent future violations of the same, including by ordering Defendants to provide:
 qualified ASL interpreters to enable Plaintiffs to communicate effectively with medical and mental healthcare professionals, institution staff, educational and
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vocational instructors, religious leaders, work program managers and coordinators, and disciplinary officers;  non-aural notification of emergencies or other important events and announcements, e.g., a vibrating pager, visual alarms, vibrating watch, vibrating bed device, and/or message boards;  equal and full access to appropriate and effective telecommunication devices for the deaf, such as full and equal access to a videophone, TTY, and CapTel devices;  fully functioning hearing aid batteries; and  access to Icom or other comparable devices that would permit Mr. Boyd to hear televisions located in the facilities at Butner. C. In the alternative, the Court enter such injunctive relief against Defendants to effectuate a transfer of Plaintiffs to an appropriate facility with the proven ability to accommodate deaf detainees such as Plaintiffs; D. Judgment be entered against Defendants in favor of Plaintiffs for the costs of litigation, including reasonable attorneys’ fees under 28 U.S.C. § 2412(d)(1)(A). E. The Court retain jurisdiction of this matter until Defendants demonstrate that they have fully complied with the orders of this Court, and that there is a reasonable assurance that Defendants will continue to comply in the future absent continuing jurisdiction; and F. The Court award Plaintiffs any further relief that the Court deems appropriate.
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Dated: April 11, 2012
-- and -/s/ Philip Fornaci Philip Fornaci E. Elaine Gardner Deborah Golden Washington Lawyers’ Committee for Civil Rights and Urban Affairs 11 Dupont Circle, N.W. Suite 400 Washington, D.C. 20036 T: 202-319-1000 F: 202-319-1010 philip_fornaci@washlaw.org elaine_gardner@washlaw.org deborah_golden@washlaw.org

Respectfully Submitted,
/s/ Neil A. Riemann Neil A. Riemann (NC Bar No. 19258) PENRY RIEMANN PLLC 1330 St. Mary's Street Suite 260 Raleigh, NC 27605 T: 919-833-9449 F: 919-516-0880 neil.riemann@penryriemann.com
-- and --
/s/ Ian S. Hoffman Ian S. Hoffman Carolyn A. Pearce David B. Bergman ARNOLD & PORTER LLP 555 Twelfth Street, N.W. Washington, DC 20004 T: 202-942-5000 F: 202-942-5999 ian.hoffman@aporter.com carolyn.pearce@aporter.com david.bergman@aporter.com
Counsel for Plaintiffs Robert Boyd and Thomas Heyer

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Case 5:11-ct-03118-D Document 24 Filed 04/11/12 Page 34 of 35

CERTIFICATE OF SERVICE I hereby certify that today, April 11, 2012, I electronically filed the foregoing Verified First Amended Complaint using the Court’s CM/ECF system, which caused true and correct copy of the foregoing to be served on all counsel of record for the existing Defendants.

Date: April 11, 2012

/s/ Ian S. Hoffman

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 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION No. 5:11-CT-3118-D

THOMAS HEYER and

)

ROBERT PAUL BOYD,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES BUREAU

)

OF PRISONS, et al.,

)

)

Defendants. )

ORDER

Thomas Heyer and Robert Paul Boyd are in the custody of the Bureau of Prisons pursuant to 18 U.S.C. § 4248. Each has been designated a sexually dangerous persons. Plaintiffs filed this action pursuant to Bivens v. Six Unknown Named Agents ofFederal Bureau ofNarcotics, 403 U.S. 388 (1971) [D.E. 1]. On April11, 2012, plaintiffs filed an amended complaint [D.E. 24].
On June 25, 2012, defendants filed a motion to dismiss or for summary judgment [D.E. 32] and materials in support [D.E. 33-34]. On July 19, 2012, plaintiffs responded in opposition [D.E. 35] and filed motions for discovery and to deny defendants' motion to dismiss or for summary judgment pursuant to Federal Rule of Civil Procedure 56(d) [D.E. 36], and for summary judgment on count two of their amended complaint [D.E. 37]. Thereafter, defendants replied in support of their motion to dismiss or for summary judgment [D.E. 39], and responded in opposition to plaintiffs' motions for discovery and summary judgment [D.E. 40--41]. Plaintiffs replied [D.E. 42-43]. On October 15, 2012, defendants filed a supplementto their motion for summaryjudgment [D.E. 44], to which plaintiffs responded [D.E. 45]. As explained below, plaintiffs' motion for

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summary judgment on count two is denied without prejudice, defendants' motion to dismiss is granted in part and denied in part, and defendants' motion for summary judgment is denied without prejudice.
I. Plaintiffs Thomas Heyer ("Heyer") and Robert Paul Boyd ("Boyd") have been civilly committed to the custody of the Attorney General as sexually dangerous persons pursuant to 18 U.S.C. § 4248 and are confined at the Federal Correctional Institution in Butner, North Carolina ("Butner"). Am. Compl. ~ 2; see United States v. Boyd, No. 5:08-HC-2061-D, [D.E. 66] (E.D.N.C. Jan. 27, 2012) (unpublished); United States v. Heyer, No. 5:08-HC-2183-BO, [D.E. 81] (E.D.N.C. July 9, 2012) (unpublished). Plaintiffs are both deaf. Am. Compl. ~~ 7, 11. Heyer has been deaf since birth, and his native language is American Sign Language ("ASL"). Id. ~~ 7-8. "Heyer's ability to read lips is limited," id. ~ 9, and his "English reading and writing skills are much lower than average." Id. ~ 10. Boyd "has been profoundly deaf since 1975, when he lost his hearing as a result ofhis military service." ld. ~ 11. Boyd uses ASL to communicate and his ability to read lips is limited. ld. ~~ 12-13. Plaintiffs allege that defendants have failed or refused to provide, inter ali~ (1) qualified ASL interpreters or other appropriate auxiliary aids for plaintiffs' treatment program under section 4248, medical appointments, disciplinary proceedings, vocational, educational, and religious programs; (2) appropriate methods of non-aural notification of emergencies or other important events or announcements; and (3) equal and consistent access to telecommunications devices that would permit them to communicate with anyone outside of Butner. Am. Compl. ~~ 33, 36--62, 64-68. Plaintiffs assert that defendants' failure to implement such accommodations discriminates against plaintiffs on the basis of their disabilities and violates several federal laws and the
2
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Constitution. Id. ~~ 79-140. Plaintiffs also assert that the conditions at Butner have adversely affected their ability to engage in religious activities, in violation of the Religious Freedom Restoration Act and the First Amendment. Id. ~~ 141-54. Plaintiffs seek declaratory relief, injunctive relief, and attorneys' fees.
II. Plaintiffs contend that defendants' motion for summary judgment is premature due to the absence of any discovery. Generally, "summary judgment is appropriate only after adequate time for discovery." Evans v. Techs. Awlications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996) (quotation omitted). Rule 56(d) provides: Ifa nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order. Fed. R. Civ. P. 56(d). Thus, Rule 56(d) permits a court to delay ruling on a motion for summary judgment ifthe nonmoving party requires discovery to identify "facts essential to justify the party's opposition." Crawford-El v. Britton, 523 U.S. 574, 599 n.20 (1998) (quotation omitted); see Anderson v. LibeeyLobby.Inc.,477U.S. 242,250n.5 (1986); Naderv. Blair, 549F.3d953, 961-62 (4th Cir. 2008). A party requesting reliefpursuant to Rule 56(d) must demonstrate that the party has not had sufficient time to develop information needed to oppose the summary judgment motion. See, ~. Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002). In making its determination, a court may consider the diligence that the non-moving party has demonstrated in pursuing discovery. See White v. BFI Waste Servs.. LLC, 375 F.3d 288, 295 n.2 (4th Cir. 2004); Harrods Ltd., 302 F.3d at 245; Strag v. Bd. ofTrs., 55 F.3d 943, 953-54 (4th Cir. 1995). A court
3
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also may consider whether the case "involves complex factual questions about intent and motive." Harrods, 302 F.3d at 247.
Plaintiffs' attorney has filed a declaration asserting the need for discovery and stating that no discovery has taken place in this case. See Pis.' Rule 56(d) Mot., Hoffinan Decl. 1 The Fourth Circuit places "great weight on the [Rule 56(d)] affidavit." Evans, 80 F.3d at 961. Plaintiffs' counsel's Rule 56(d) affidavit notes that defendants' summary judgment motion "rel[ies] on declarations submitted by witnesses who have not been deposed or otherwise subjected to crossexamination concerning their allegations" thereby warranting discovery. Hoffinan Decl. ~~ 2-5.
Defendants respond that discovery is unnecessary because the court should dismiss the case for failure to exhaust administrative remedies or pursuant to Federal Rule of Civil Procedure 12(b)(6). See Defs.' Opp'n Pis.' Rule 56(d) Mot. 2-3. Defendants further contend that "[m]any of Defendants' alternative arguments for summary judgment are based on factual assertions" and because "neither Plaintiff personally challenges via declaration the factual claims made in the declarations ofMcKoy, Steinour, Jacobs, and May[,]" plaintiffs have failed to "create[] an issue of material fact for purposes of Defendants' summary judgment motion." Id. 4--5.
A.
As for defendants' argument under Rule 12(b)(6), the court must determine whether the complaint is legally and factually sufficient. See Fed. R. Civ. P. 12(b)(6); Ashcroft v. Iqbal, 556 U.S. 662,678-79 (2009); Bell Atl. Com. v. Twombly, 550 U.S. 544, 570 (2007); Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 132 S. Ct. 1327 (2012); Giarratano v.
1 Although the better practice is for a party (rather than an attorney) to file a Rule 56(d) affidavit, the court may accept an attorney's Rule 56(d) affidavit. See, ~, Resolution Trust Com. v. N. Bridge Assocs.. Inc., 22 F.3d 1198, 1204 (1st Cir. 1994).
4
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Johnso!l,521 F.3d 298,302 (4th Cir. 2008); accord Erickson v. Pardus, 551 U.S. 89,93-94 (2007) (per curiam). In conducting its review, a court need not accept a complaint's "legal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement." Nemet Chevrolet. Ltd. v. Consumeraffairs.com. Inc., 591 F.3d 250, 255 (4th Cir. 2009); see also Iqbal, 556 U.S. at 678-79. Similarly, a court "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal, 556 U.S. at 678-79. Moreover, a court may take judicial notice ofpublic records without converting a motion
to dismiss into a motion for summary judgment. See,~. Fed. R. Evid. 201; Tellabs. Inc. v. Makor
Issues & Rights. Ltd., 551 U.S. 308, 322 (2007); Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
1. First, the court addresses defendants' argument that plaintiffs were required to exhaust administrative remedies before filing suit. As this court explained in Cooke v. Bureau of Prisons,
No. 5:12-CT-3020-D, 2013 WL 752795, at *3-4 (E.D.N.C. Feb. 27, 2013), the Prison Litigation Reform Act of 1995 ("PLRA") did not require plaintiffs to exhaust administrative remedies before filing suit. As for plaintiffs' claim in count one (violations of section 504(a) of the Rehabilitation Act), count five (Fifth Amendment right to medical privacy), count nine (violations ofthe Religious Freedom Restoration Act of 1993), and count ten (First Amendment free exercise), the court's analysis in Cooke, 2013 WL 752795, at *5-16, controls.2 Accordingly, the court dismisses count one without prejudice for failure to exhaust administrative remedies under 28 C.F.R. § 39.170 (2012) and dismisses count five without prejudice pursuant to Federal Rule ofCivil Procedure 12(b)(6) for
2 In dismissing plaintiffs' Fifth Amendment claim in count five, the court also notes Franklin v. District ofColumbi~ 163 F.3d 625, 638-39 (D.C. Cir. 1998).
5
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failure to state a claim upon which relief can be granted. The court denies defendants' motion to dismiss counts nine and ten.
2.
Next, the court addresses plaintiffs' motion for summary judgment on count two. In count two, plaintiffs allege that defendants violated their Fifth Amendment "due process rights by systematically denying Plaintiffs the means of effective communication, including the services of a qualified ASL interpreter, in the context ofthe treatment programs for persons committed pursuant to§ 4248" and assert that "[w]ithout qualified ASL interpreters and other auxiliary aids, Plaintiffs are effectively deprived ofthe procedural safeguards guaranteed to them through the statutory and administrative commitment scheme." Am. Compl. ~ 99.
"[C]ivil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection." Addington v. Texas, 441 U.S. 418, 425 (1979). However, "a civil commitment proceeding can in no sense be equated to a criminal prosecution." Id. at 428; see Kansas v. Hendricks, 521 U.S. 346,361-62 (1997); United States v. Timms, 664 F.3d436, 456 (4th Cir. 2012), cert. denied, 133 S. Ct. 189 (2012). In Vitek v. Jones, 445 U.S. 480 (1980), the Supreme Court held that, in the context of an involuntary civil commitment, due process requires "notice .. . to afford the prisoner an opportunity to challenge the contemplated action and to understand the nature of what is happening to him," a hearing with a "limit[ed] ... right to call witnesses, to confront and cross examine[,]" and appointment ofcounsel. ld. at 496-97; accord Timms, 664 F.3d at 450.
No party has cited a case concerning the degree of interpretive assistance needed during commitment under section 4248. In the context of a criminal case,
[t]he Supreme Court has never decided what degree of interpretive assistance is 6
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constitutionally required for non-English speaking defendants. See United States v. Desist, 384 F.2d 889, 901 (2d Cir.l967) (noting lack of Supreme Court precedent); see also United States v. Johnson, 248 F.3d 655,663 (7th Cir. 2001) (noting that the Supreme Court has not even specifically found a constitutional right to any interpreter at all). The Second Circuit, however, has held that a non-English speaking defendant has a constitutional right to an interpreter. See United States ex rel. Negron v. New York, 434 F.2d 386, 387 (2d Cir. 1970); see also United States v. Lim, 794 F.2d 469,470 (9th Cir. 1986) (holding that "a defendant whose fluency in English is so impaired that it interferes with his right to confrontation or his capacity, as a witness, to understand or respond to questions has a constitutional right to an interpreter") (citations omitted)[.]
Pham v. Beaver, 445 F. Supp. 2d 252, 256 (W.D.N.Y. 2006). In the context of an immigration
hearing, in order to state a due process violation, an alien must demonstrate that the failure to
provide him with adequate interpretation during a deportation or asylum hearing "likely . . .
impact[ed] the results of the proceedings." Rusu v. U.S. I.N.S., 296 F.3d 316, 320-21 (4th Cir.
2002) (quotations omitted); see Singh v. Holder, 699 F.3d 321, 335 (4th Cir. 2012).
Plaintiffs seek summary judgment on count two and argue that defendants have conceded
the claim by not moving to dismiss it. See Pls.' Mem. Supp. Summ. J. 3. Not surprisingly,
defendants dispute this novel view of the record and the Federal Rules of Civil Procedure. See
Defs.' Mem. Opp'n Summ. J. 6. On the current record, the court declines to rule in favor ofeither
side on count two. The competing motions for summary judgment are denied without prejudice.
3.
Next, the court addresses plaintiffs' constitutional claims in counts three (Fifth Amendment
claim to qualified interpreter at disciplinary hearings), four (Fifth Amendment claim to informed
consent to medical treatment), six (Fifth Amendment claim to adequate medical treatment), seven
(Fifth Amendment claim to a reasonably safe environment), and eight (First Amendment claim to
freedom ofspeech). See Am. Compl. ~~ I01-112, 120-140. Plaintiffs assert Fifth Amendment due
process violations in that defendants' failure to provide them with the assistance ofan interpreter and
7
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other accommodations for their deafuess has resulted in constitutionally deficient disciplinary hearings, constitutionally inadequate medical examinations and treatment, and a constitutionally unsafe environment. Am. Compl. ~~ 104, 109, 123, 130. Plaintiffs also assert a First Amendment free speech claim in that they do not have the same level of access as hearing detainees to telecommunication equipment. Id. ~~ 135-140.
The Supreme Court's balancingtestsetforthin Turnerv. Safley, 482 U.S. 78,89-91 (1987), applies to inmates detained under a civil commitment statute. See Cooke, 2013 WL 752795, at* 13; Wolfe v. Christie, Civil Action No. 10-2083 (PGS), 2010 WL 2925145, at *6-7 (D.N.J. July 19, 2010) (unpublished); Solkolskyv. Voss, No. 1:07-cv-00613-0WW-SMS-PC, 2008 WL 927722, at *5--Q (E.D. Cal. Apr. 4, 2008) (unpublished). Defendants ask the court to dismiss plaintiffs' constitutional claims and argue that plaintiffs have not alleged deliberate indifference in counts three, four, six, seven, and eight. See Defs.' Mem. Supp. Mot. Dismiss 16-27. The court disagrees, however, and concludes that plaintiffs have stated claims in counts three, four, six, seven, and eight. See,~, Farmerv. Brennan, 511 U.S. 825,828 (1994); Brown v. Harris, 240 F.3d 383,388-89 (4th Cir. 2001); Creveling v. Johnson, Civil Action No. 11-667 (SDW), 2011 WL 3444092, at *7-11 (D.N.J. Aug. 4, 2011) (unpublished); Francis v. Watson, CIA No. 3:05-2499-JFA-JRM, 2006 WL 2716452, at *3-4 (D.S.C. Sept. 22, 2006); Clarkson v. Coughlin, 898 F. Supp. 1019, 1042-43 (S.D.N.Y. 1995); but cf. Douglas v. Gusman, 567 F. Supp. 2d 877, 885-86 (E.D. La. 2008). Whether plaintiffs can prove their constitutional claims is an issue for another day. Accordingly, the court denies defendants' motion to dismiss counts three, four, six, seven, and eight.
B.
Plaintiffs have demonstrated a good-faith need to develop a factual record in order to oppose defendants' summary judgment motion as to the constitutional claims and the RFRA claim. See
8
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Fed. R. Civ. P. 56(d). Because the parties have not engaged in any discovery in this action and plaintiffs' counsel has filed an appropriate Ru1e 56(d) affidavit, the court grants plaintiffs' Ru1e 56(d) motion and denies without prejudice defendants' motion for summary judgment.
m.
In sum, plaintiffs' motion for summary judgment on count two [D.E. 37] is DENIED WITHOUT PREJUDICE, and defendants' motion to dismiss or for summary judgment [D.E. 32] is GRANTED IN PART and DENIED IN PART. Count one under the Rehabilitation Act is DISMISSED without prejudice for failure to exhaust administrative remedies under 28 C.F.R. § 39.170. Count five under the Fifth Amendment is DISMISSED without prejudice for failure to state a claim upon which relief can be granted. Counts two, three, four, six, seven, eight, nine, and ten survive. Plaintiffs' Ru1e 56(d) motion [D.E. 36] is GRANTED IN PART as to the remaining claims, and defendants' motion for summary judgment is DENIED without prejudice as to the remaining claims. The parties shall confer and file a proposed schedu1ing order (or separate proposed orders, if the parties cannot agree) no later than March 28, 2013.
SO ORDERED. This __iL day of March 2013.
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 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION 5:11-CT-03118-D

THOMAS HEYER and

)

ROBERT PAUL BOYD,

)

)

Plaintiffs,

)

)

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, and

)

ERIC H. HOLDER, JR.,

)

)

Defendants.

)

ORDER

This case comes before the court on the motion (D.E. 73) with incorporated

memorandum filed by plaintiffs Thomas Heyer and Robert Paul Boyd (collectively “plaintiffs”)

to compel the production of documents from defendants United States Bureau of Prisons,

Thomas R. Kane, Ike Eichenlaub, Sara M. Revell, Tracy W. Johns, and Eric H. Holder, Jr.

(collectively “defendants”). The motion has been fully briefed and referred to the undersigned for disposition pursuant to 28 U.S.C. § 636(b)(1)(A).1 (See Docket Entry after D.E. 91). For the

reasons set forth below, the motion will be denied.

1 In support of their motion with incorporated memorandum, plaintiffs filed an exhibit (D.E. 73-1). Defendants filed an initial memorandum in opposition (D.E. 77), which indicated that they had referred plaintiffs’ request for the documents in issue to the appropriate officials at the U.S. Department of Justice, as required by federal regulations, 28 C.F.R. §§ 16.21 et seq. Following that review, defendants supplemented their response with a memorandum (D.E. 84), exhibit (D.E. 84-1), and declaration (D.E. 85) in opposition. There being no objection by plaintiffs to the supplemental submissions, the court has considered them in reaching its decision.

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BACKGROUND Plaintiffs are inmates in the custody of the Bureau of Prisons who have been designated as sexually dangerous persons pursuant to 18 U.S.C. § 4248. (Am. Comp. (D.E. 24) ¶ 2). They are hearing impaired. (Id. ¶¶ 7, 11). They allege that defendants have failed to provide them with qualified American Sign Language (“ASL”) interpreters or other accommodations for their hearing loss and have thereby deprived them of “adequate and informed medical treatment, participat[ion] in institution disciplinary proceedings, effectively tak[ing] part in any rehabilitative, educational, or religious programs, or communicat[ion] with those within and outside the institution.” (Id. ¶ 1). In their amended complaint, plaintiffs asserted ten claims, bearing the count numbers indicated: (1) discrimination in violation of the Rehabilitation Act of 1973, 29 U.S.C. §§ 794 et seq. (id. ¶¶ 79-94); (2) due process violations and deprivation of liberty pursuant to the Fifth Amendment of the United States Constitution (id. ¶¶ 95-100); (3) due process violations of the right to a qualified interpreter at disciplinary hearings pursuant to the Fifth Amendment (id. ¶¶ 101-05); (4) due process violations of the right to informed consent to medical treatment pursuant to the Fifth Amendment (id. ¶¶ 106-12); (5) due process violations of the right to privacy in medical treatment pursuant to the Fifth Amendment (id. ¶¶ 113-19); (6) due process violations of the right to adequate medical treatment pursuant to the Fifth Amendment (id. ¶¶ 120-26); (7) due process violations of the right to a reasonably safe environment pursuant to the Fifth Amendment (id. ¶¶ 127-33); (8) violation of the right to free speech pursuant to the First Amendment (id. ¶¶ 134-40); (9) violation of the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq. (id. ¶¶ 141-48); and (10) violation of the right to free exercise of religion pursuant to the First Amendment (id. ¶¶ 149-54). Plaintiffs sought declaratory relief, injunctive relief, costs, and attorneys’ fees. (Id. at 31-32, Prayer for Relief).
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On defendants’ motion for dismissal or summary judgment, the court dismissed counts one and five without prejudice. (See D.E. 46 at 5-6). Defendants deny the material allegations in the remaining counts of plaintiffs’ amended complaint. (See generally Ans. (D.E. 51)).
On 18 April 2013, plaintiffs served on defendants their first requests for production of documents. (Mot. 2). Defendants responded to the production requests, but withheld 69 otherwise responsive documents on the basis of the deliberative process privilege. The withheld documents are identified in defendants’ privilege log (D.E. 84-1). By the instant motion, plaintiffs seek to compel production of these documents. Plaintiffs describe the withheld communications, which include emails and memoranda, as relating to four categories: “(a) accommodations for Plaintiffs’ medical needs, (b) non-aural alerts, (c) video phones, video relay interpreting, and related technological issues, and (d) Defendants’ funding available to pay for qualified ASL interpreters.” (Mot. 2).
DISCUSSION I. APPLICABLE LEGAL STANDARDS
A. General Discovery Principles The Federal Civil Rules enable parties to obtain information by serving requests for discovery on each other, including requests for production of documents. See generally Fed. R. Civ. P. 26-37, 45. Rule 26 provides for a broad scope of discovery: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense . . . . For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.
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Fed. R. Civ. P. 26(b)(1). The rules of discovery, including Rule 26, are to be given broad and liberal construction. Herbert v. Lando, 441 U.S. 153, 177 (1979); Nemecek v. Bd. of Governors, No. 2:98-CV-62-BO, 2000 WL 33672978, at *4 (E.D.N.C. 27 Sep. 2000).
While Rule 26 does not define what is deemed relevant for purposes of the rule, relevance has been “‘broadly construed to encompass any possibility that the information sought may be relevant to the claim or defense of any party.’” Equal Employment Opportunity Comm’n v. Sheffield Fin. LLC, No. 1:06CV889, 2007 WL 1726560, at *3 (M.D.N.C. 13 June 2007) (quoting Merrill v. Waffle House, Inc., 227 F.R.D. 467, 473 (N.D. Tex. 2005)). The district court has broad discretion in determining relevance for discovery purposes. Watson v. Lowcountry Red Cross, 974 F.2d 482, 489 (4th Cir. 1992).
B. Deliberative Process Privilege The deliberative process privilege protects “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975).2 It is designed to protect communications among governmental officials and encourage open and frank discussions of policy issues. Dep’t of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8-9 (2001) (“The deliberative process privilege rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news, and its object is to enhance ‘the quality of agency decisions’ by protecting open and frank discussion among those who make them within the Government.”) (internal citation omitted); City of Va. Beach v. U.S. Dep’t of Commerce, 995
2 In this case and others discussed herein, the deliberative process privilege arises in connection with a Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, request. Exemption 5 in FOIA provides an exception from production for documents that a party could not discover in litigation with the agency. 5 U.S.C. § 552(b)(5). The reasoning applied in such cases is accordingly applicable to cases such as the instant litigation.
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F.2d 1247, 1252-53 (4th Cir. 1993) (noting that the deliberative process privilege “encourages free-ranging discussion of alternatives; prevents public confusion that might result from the premature release of such nonbinding deliberations; and insulates against the chilling effect likely were officials to be judged not on the basis of their final decisions, but ‘for matters they considered before making up their minds’” (quoting Jordan v. United States Dep’t of Justice, 591 F.2d 753, 772-73 (D.C. Cir. 1978) (en banc), overruled in part on other grounds, Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051 (D.C. Cir. 1981) (en banc))).
To qualify as protected from disclosure, the document must not only be deliberative, but also “predecisional.” Worsham v. U.S. Dep’t of the Treasury, No. ELH-12-2635, 2013 WL 5274358, at *12 (D. Md. 17 Sept. 2013). “A document is ‘deliberative’ if it ‘reflects the giveand-take of the consultative process by revealing the manner in which the agency evaluates possible alternative policies or outcomes.’” Worsham, 2013 WL 5274358, at *12 (quoting City of Va. Beach, 995 F.2d at 1253). Drafts, proposals, recommendations, and opinions regarding the policy in question all can fall under the deliberative umbrella. Rein v. U.S. Patent & Tradmark Office, 553 F.3d 353, 371 (4th Cir. 2009). To qualify as predecisional, the document must have been prepared to assist in the arrival at a final decision. Worsham, 2013 WL 5274358, at *12. Accordingly, documents created after the decision is reached or policy is established do not qualify. Id.; see also Gluckman v. U.S. Dep’t of Labor, No. 3:13-cv-169, 2013 WL 6184957, at *7 (E.D. Va. 26 Nov. 2013) (“Communications are predecisional where they are ‘antecedent to the adoption of an agency policy.’” (quoting Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 513 (D.C. Cir. 2011))). The burden is on the government to demonstrate the applicability of the privilege. Rein v. U.S. Patent & Trademark Office, 553 F.3d 353, 366 (4th Cir. 2009).
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The deliberative process privilege is a qualified one; that is, where a party can establish the existence of a sufficient need for the information that outweighs any harm from its production, the privilege may be overcome. Scott v. PPG Industries, Inc., 142 F.R.D. 291, 294 (N.D.W. Va. 1992). “Courts have used a four factor test in balancing the deliberative process privilege with the need of the party seeking disclosure: (1) the relevance of the evidence to the lawsuit, (2) the availability of alternative evidence on the same matters, (3) the government’s role, if any, in the litigation, and (4) the extent to which disclosure would harm open and frank communication within the agency.” Id. The burden of showing an overriding need for the information rests with the party seeking it. Redland Soccer Club, Inc. v. Dep’t of Army, 55 F.3d 827, 853 (3d Cir. 1995) (“The party seeking discovery bears the burden of showing that its need for the documents outweighs the government’s interest.”). II. PLAINTIFFS’ MOTION TO COMPEL
Plaintiffs advance two main arguments for their contention that disclosure of the documents is warranted: first, that the deliberative process privilege should not apply to the facts of this case, and second, even if it does, the need for the evidence outweighs the risk of harm from disclosure.
A. Applicability of the Deliberative Process Privilege The court finds that defendants have met their burden of establishing that the withheld documents are deliberative and predecisional. Defendants submitted the declaration of Warden Justin Andrews (D.E. 85), the warden at the Federal Correctional Institution in Butler, North Carolina (“FCI Butner”), where plaintiffs are housed. (Andrews Dec. ¶¶ 1, 4). Warden Andrews affirms that all the documents were intended to fuel dialogue and analyze the question of how the facility should accommodate hearing-impaired inmates and were created before adoption of a
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final policy by the Bureau of Prisons or FCI Butner. (Id. ¶¶ 5, 7, 8). He notes that staff members have expressed concern about disclosure of the documents reflecting opinions expressed regarding plaintiffs’ confinement, and the related concern that future communications regarding other federal inmates would be chilled by such disclosure. (Id. ¶ 9). A review of the entries on the privilege log corroborates Warden Andrews’ statements that the documents appear to constitute deliberative and predecisional materials. Indeed, plaintiffs do not challenge either of these underlying elements.
Instead, plaintiffs contend the deliberative process privilege is inapplicable where, as here, the government’s conduct or decision-making process is at issue in the litigation. Plaintiffs rely on In re Subpoena Duces Tecum Served on the Comptroller of the Currency, 145 F.3d 1422, 1424 (D.C. Cir. 1998) for this proposition. In that case, the D.C. Circuit held that the “deliberative process privilege is not appropriately asserted . . . when a plaintiff’s cause of action turns on the government’s intent.” Id. The court reasoned that “[i]f the plaintiff’s cause of action is directed at the government’s intent, however, it makes no sense to permit the government to use the privilege as a shield.” Id. Plaintiffs point to the similar exception providing that the privilege is inapplicable where there is evidence of government misconduct. Libertarian Party of Ohio v. Husted, ___ F. Supp. 2d ___, 2014 WL 3509749, at *4 (S.D. Ohio 14 July 2014) (“[W]here there is reason to believe the documents sought may shed light on government misconduct, ‘the privilege is routinely denied,’ on the grounds that shielding internal government deliberations in this context does not serve ‘the public’s interest in honest, effective government.’” (quoting In re Sealed Case, 121 F. 3d 729, 738 (D.C. Cir. 1997))).
The court is not persuaded by plaintiffs’ argument, to the extent that the exceptions they invoke apply in the Fourth Circuit. While plaintiffs do allege deliberate indifference by
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defendants, the allegations are conclusory in nature and relate to only some of their claims. (See Am. Comp. ¶¶ 111, 118, 125, 132). The integrity of the decision-making process concerning the conditions at FCI Butner and the accommodations plaintiffs seek is not the gravamen of their case, but rather the actual conditions and accommodations themselves. See In re Subpoena, 145 F.3d at 1425 (“The privilege was fashioned in cases where the decisionmaking process is collateral to the plaintiff’s suit.”); Prakel v. Indiana, No. 4:12-cv-45, 2013 WL 3287691, at *5-7 (S.D. Ind. 28 June 2013) (holding that deliberative process privilege would apply to information regarding thought processes and motivation leading up to decision not to provide interpreter services or reimburse for that expense); Convertino v. U.S. Dept. of Justice, 674 F. Supp. 2d 97, 103 (D.D.C. 2009) (“The privilege remains even if the motive of the government is relevant to some inquiry in the case, as long the government’s subjective motivation is not the very ‘essence of a claim.’” (quoting GE v. Johnson, No. 00–2855, 2006 WL 2616187, at *7 (D.D.C. 12 Sept. 2006))).
Moreover, to the extent that plaintiffs do challenge defendants’ decision-making process, the alleged conduct does not involve the sort of bad faith, improper motive, or fraud on the part of government officials that would warrant a blanket denial of the deliberative process privilege. See Hinckley v. United States, 140 F.3d 277, 285 (D.C. Cir. 1998) (“The deliberative process privilege would soon be meaningless, if all someone seeking information otherwise protected under the privilege had to establish is that there was disagreement within the governmental entity at some point in the decisionmaking process.”); ICM Registry, LLC v. U.S. Dept. of Commerce, 538 F. Supp. 2d 130, 133 (D.D.C. 2008) (“If every hint of marginal misconduct sufficed to erase the [deliberative process] privilege, the exception would swallow the rule.”); Utah Med. Prods. v. McClellan, No. 2:03-cv-525-PGC, 2004 WL 988877, at *3 (D. Utah 31 Mar. 2004) (holding
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that the deliberative process privilege will not apply only where there is a “factual basis for the belief that the information sought might reveal misconduct on the government’s part”); cf. Elkins v. District of Columbia, 250 F.R.D. 20, 27 (D.D.C. 2008) (rejecting application of deliberative process privilege where plaintiffs’ claim centered on whether defendant’s conduct “was motivated by evil motive or intent, or involved reckless or callous indifference to Plaintiffs’ rights”); Tri-State Hosp. Supply Corp. v. United States, 226 F.R.D. 118, 135 (D.D.C. 2005) (noting that deliberative process privilege may yield in case where government was alleged to have engaged in malicious prosecution and abuse of process).
In addition, as a general matter, the unique security and other concerns presented by the correctional setting enhance the need for correctional facility decision makers to be able to freely and openly consider among themselves appropriate accommodations for inmates. See generally Lovelace v. Lee, 472 F.3d 174, 199 (4th Cir. 2006) (“[C]ourts must accord deference to the officials who run a prison, overseeing and coordinating its many aspects, including security, discipline, and general administration.”). Were the court to hold as plaintiff urges, such ability would be imperiled in virtually any case in which a plaintiff challenges his conditions of confinement. See Delaware Riverkeeper Network v. Delaware River Basin Comm’n,___ F.R.D. ___, 2014 WL 2571605, at *7 (D.N.J. 9 June 2014) (“From a practical standpoint, if an exception to the deliberative process privilege provided that any challenge to the process by which an agency reached a decision was sufficient, the exception might swallow the rule.”). For this and the other reasons discussed, the court rejects plaintiffs’ contention that the deliberative process privilege does not apply to the documents they seek.
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B. Plaintiffs’ Relative Need for the Documents Plaintiffs’ contention that they have such a great need for the documents they seek that the privilege should yield is also unavailing. Turning to the four-factor test referenced, the first factor—the relevance of the information to the lawsuit—weighs handily in plaintiffs’ favor. The documents directly concern the very accommodations for plaintiffs’ medical needs that are at issue in the litigation. The second factor—the existence of alternative means to obtain the information—weighs in favor of defendants. They contend that at depositions plaintiffs were permitted to ask government witnesses questions concerning the decision-making process, and even where the privilege was asserted as part of an objection, the witness was permitted to answer the question. (Defs.’ Supp. Mem. 13). Thus, plaintiffs have had an opportunity to explore details underlying the decisions affecting the accommodations at issue. The third factor addresses the government’s role in the litigation. Here, a government agency and government employees are parties, and the government’s role is obviously important. This factor therefore weighs in plaintiffs’ favor. The last factor, however—the chilling effects of disclosure—falls squarely on the side of defendants. As noted, Warden Andrews states in his declaration that staff members have expressed concern that the disclosure sought would have a chilling effect on future decision making regarding inmate accommodations. And, again, such a consequence could be particularly deleterious in the unique correctional setting. Plaintiffs contend that the information in these documents relates only to individualized decisions concerning two inmates and, thus, no chilling effect would result from disclosure. The number of inmates affected by a decision, though, is not determinative of the existence and
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degree of chilling effect on decision makers. Discussions concerning the feasibility of altering accommodations for inmates’ disabilities impact broader policy concerns that go beyond a factspecific inquiry pertaining to only one or two particular inmates. In any event, as discussed, to require disclosure under the circumstances here would in principle broadly sanction disclosure in future cases, which could involve significantly larger numbers of inmates.
Weighing all of these factors in their totality, the court concludes that plaintiffs have not met their burden of demonstrating sufficient need for the documents to override the application of the deliberative process privilege in this instance. The court accordingly rejects this final ground for plaintiffs’ motion.
CONCLUSION For the foregoing reasons, IT IS ORDERED that plaintiffs’ motion (D.E. 73) to compel is DENIED. This, the 12th day of September 2014.
_________________________ James E. Gates United States Magistrate Judge
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 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION No. 5:11-CT-3118-D

THOMAS HEYER and

)

ROBERT PAUL BOYD,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES BUREAU OF

)

PRISONS, et al.,

)

)

Defendants. )

ORDER

Thomas Heyer and Robert Paul Boyd are in the custody of the Bureau of Prisons pursuant to 18 U.S.C. § 4248. Each has been designated a sexually dangerous person. Plaintiffs filed this action pursuant to Bivens v. Six Unknown Named Agents ofFederal Bureau ofNarcotics, 403 U.S. 388 (1971) [D.E. 1]. On April11, 2012, plaintiffs filed an amended complaint [D.E. 24].
On March 11, 2013, the court granted in part defendants' motion to dismiss, dismissing counts one and five ofthe amended complaint, and denied without prejudice the parties' motions for summary judgment. See Heyerv. U.S. BureauofPrisons, No. 5:11-CT-3118-D, 2013 WL 943406 (E.D.N.C. Mar. 11, 2013) (unpublished). On September 23, 2013, the court denied defendants' motion to stay and allowed an extension of time to complete discovery and to file dispositive motions [D.E. 70]. The parties thereafter sought and obtained additional extensions of time to complete discovery and file motions [D.E. 94--95, 99--102, 107, 120].
On August 21, 2014, defendants filed a second motion to dismiss or for summary judgment [D.E. 111]. Because defendants attached materials that are outside the scope of the pleadings, the court construes the motion as requesting summaryjudgment. See Fed. R. Civ. P. 12(d). On October

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14, 2014, plaintiffs responded in opposition to the motion for summary judgment [D.E. 124]. On October 28, 2014, plaintiffs moved for partial summaryjudgment on counts two, four, six, and eight ofthe amended complaint [D.E. 127]. On November 18, 2014, defendants responded in opposition to plaintiffs' motion for partial summary judgment [D.E. 130]. The parties also have filed motions to seal certain exhibits and documents [D.E. 123, 132, 135, 138, 140], and defendants request leave of court to conduct further audiology testing on Boyd [D.E. 134]. As explained below, the court grants in part defendants' motion for summary judgment, denies plaintiffs' motion for partial summary judgment, and dismisses the remaining counts as moot.
I. Plaintiffs Thomas Heyer ("Heyer") and Robert Paul Boyd ("Boyd") have been civilly committed to the custody of the Attorney General as sexually dangerous persons pursuant to 18 U.S.C. § 4248 and are confined at the Federal Correctional Institution in Butner, North Carolina
("Butner"), in the Commitment and Treatment Program ("CTP"). Am. Compl. [D.E. 24] mf 1-3;
see Order, United States v. Boyd, No. 5:08-HC-2061-D (E.D.N.C. Jan. 27, 2012), [D.E. 66], aff'd, 537 F. App'x 234 (4th Cir. 2013) (per curiam) (unpublished); Order, United States v. Heyer, No. 5:08-HC-2183-BO (E.D.N.C. July 9, 2012), [D.E. 81], aff'd, 740 F.3d 284 (4th Cir. 2014).
Plaintiffs are deaf. Am. Compl. ~~ 7, 11. Heyer has been deaf since birth, and his native
language is American Sign Language ("ASL"). Id. mf 7-8. "Heyer's ability to read lips is limited,"
id. ~ 9, and his "English reading and writing skills are much lower than average." Id. ~ 10; see Heyer Decl. [D.E. 124-11] ~ 1; Pls.' Ex. A [D.E. 122] 9-10 (audiology report). Heyer can communicate with others through written notes, but "usually the person that's reading it does not understand what [Heyer has] written because [he] write[s] in ASL and their language is English." Heyer Dep. [D.E. 112-4] 8 (deposition page 31). In October 2008, while Heyer was still serving his criminal sentence,
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the Bureau of Prisons ("BOP") transferred him to Butner. Willis Decl. [D.E. 112-2] ~ 9. On December 18, 2008, the United States filed a certificate pursuant to 18 U.S.C. § 4848(a) seeking Heyer's civil commitment as a sexually dangerous person. Id. ~ 10; see § 4248(a) Certificate, United States v. Heyer, No. 5:08-HC-2183-BO (E.D.N.C. Dec. 18, 2008), [D.E. 1]. On July 8, 2012, after Heyer's commitment hearing, the court committed Heyer to the custody of the Attorney General pursuantto 18 U.S.C. § 4248(d). Order, United States v. Heyer, No. 5:08-HC-2183-BO (E.D.N.C. July 9, 2012), [D.E. 81], aff'd, 740 F.3d 284 (4th Cir. 2014); see Willis Decl. [D.E. 112-2] ~ 12. Heyer entered the CTP that same month. Heyer Decl. [D.E. 124-11] ~ 7. The CTP treatment team, however, did not include Heyer in any formal treatment until they secured an ASL interpreter. As the CTP treatment director acknowledges, the treatment team "cannot meaningfully communicate with Mr. Heyer without interpreters." HemandezDep. [D.E. 128-4] 3-4 (deposition pages 173-74); see Pls.' Ex. T [D.E. 122-9] (August 2, 2012 email); Steinour Dep. [D.E. 124-19] 7-9 (deposition pages 176-78).
Boyd "has been profoundly deaf since 1975, when he lost his hearing as a result of his military service." Am. Compl. ~ 11; see Boyd Decl. [D.E. 124-12] ~ 1. Boyd can communicate with others verbally by speaking to them and reading their lips, and by writing and using sign language. Boyd Dep. [D.E. 112-3] 22,24 (deposition pages 68, 71); see Boyd Decl. [D.E. 124-12] ~3; Pls.' Ex. A [D.E. 122] 3-5 (audiology report); cf.Am. Compl. ~~ 12-13 (alleging that Boyd uses ASL to communicate and his ability to read lips is limited). In March 2008, while Boyd was still serving his criminal sentence, the BOP transferred Boyd to Butner. Willis Decl. [D.E. 112-2] ~ 4. OnApril30, 2008, the United States filedacertificatepursuantto 18 U.S.C. § 4848(a) in this district seeking Boyd's civil commitment as a sexually dangerous person. Id. ~ 5; see§ 4248(a) Certificate, United States v. Boyd, No. 5:08-HC-2061-D (E.D.N.C. Apr. 30, 2008), [D.E. 1]. On January 27,
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2012, the court committed Boyd to the custody of the Attorney General pursuant to 18 U.S.C. § 4248(d). Order, United States v. Boyd, No. 5:08-HC-2061-D (E.D.N.C. Jan. 27, 2012), [D.E. 66], aff'd, 537 F. App'x 234 (4th Cir. 2013) (per curiam) (unpublished); see Willis Decl. [D.E. 112-2] ~ 7. Boyd entered the CTP in approximately February 2012. Boyd Decl. [D.E. 124-12] ~ 6. 1
Plaintiffs allege that defendants have failed or refused to provide, inter ali~ (1) qualified ASL interpreters or other appropriate auxiliary aids for plaintiffs' treatment program under section 4248, medical appointments, disciplinary proceedings, vocational, educational, and religious programs; (2) appropriate methods of non-aural notification of emergencies or other important events or announcements; and (3) equal and consistent access to telecommunications devices that would permit them to communicate with anyone outside of Butner. Am. Compl. ~~ 33, 36--62, 64--68. Plaintiffs assert that defendants' failure to implement such accommodations discriminates against plaintiffs because oftheir disabilities and violates several federal laws and the Constitution. Id. ~~ 79-140. Plaintiffs also assert that the conditions at Butner have adversely affected their ability to engage in religious activities, in violation ofthe Religious Freedom Restoration Act and the First Amendment. Id. ~~ 64, 141-54. Plaintiffs seek declaratory relief, injunctive relief, and attorneys' fees. Id. 31-32.
A. Heyer and Boyd made multiple requests for ASL interpreters beginning in 2008. Heyer Dep. [D.E. 124-9] 5-12, 19-21 (deposition pages 50--57,109-11); Boyd Dep. [D.E. 124-10] 9-11 (deposition pages 78-80); Heyer Decl. [D.E. 124-11] ~ 3; Boyd Decl. [D.E. 124-12] ~ 4. In
1 On the advice ofcounsel, Boyd refused to participate in the CTP until the court ordered him committed in July 2012. See Hearing Tr. at 43-44, United States v. Boyd, No. 5:08-HC-2061-D (E.D.N.C. June 12, 2012), [D.E. 74].
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September 2012, Butner entered into a contract with a third party to provide certified ASL
interpreters to Boyd and Heyer for group therapy sessions, morning community meetings with all
participating members ofthe CTP, and Multidisciplinary Treatment Team meetings. See Malterer Decl. [D.E. 112-6] ~~5-6, 8-11; see also Heyer Dep. [D.E. 112-4] 19 (deposition page 133); Pis.'
Exs. U [D.E. 124-21], Pis.' Ex. BB [D.E. 124-28V Plaintiffs contend that"[e]ven with interpreters,
[they] sometimes feel [they] cannot understand what is being communicated in the CTP programs due to the speed at which the hearing inmates and CTP staff speak." Heyer Decl. [D.E. 124-11] ~ 8; Boyd DecI. [D.E. 124-12] ~ 7. Heyer also believes (upon information from Boyd and another CTP
inmate) that the interpreters "may not fully understand [his] signing, and therefore may not effectively relay [his] communications to CTP staff." Heyer Decl. [D.E. 124-11] ~ 9.
In February 2013, Butner increased its contracted interpreter service to Heyer, providing him with an ASL interpreter for weekly individual therapy sessions. Malterer Decl. [D.E. 112-6] ~ 7.
Although Boyd does not receive individual therapy as frequently as Heyer, Butner will provide him
with an ASL interpreter for individual therapy sessions upon his request. Malterer Decl. [D.E. 1126] ~ 13; see Boyd Dep. [D.E. 112-3] 41 (deposition page 173); but see Boyd Decl. [D.E. 124-12] ~ 9.3 The parties dispute whether Boyd has ever requested an interpreter for individual therapy, or has
2 In ordering Heyer's commitment, the court directed the BOP to "make reasonable accommodations to allow Mr. Heyer to participate in its sex offender treatment program" by "provid[ing] an interpreter through whom Mr. Heyer can meaningfully participate in the treatment program." Orderat7, United Statesv. Heyer, No. 5:08-HC-2183-BO (E.D.N.C. July9, 2012), [D.E. 81]. On April 28, 2015, the court will conduct a hearing to determine Heyer's continuing need for involuntary commitment pursuant to 18 U.S.C. § 4247(h). Order, United States v. Heyer, No. 5:08HC-2183-BO (E.D.N.C. Mar. 5, 2015), [D.E. 115].
3 Boyd acknowledges that he does not meet with his treating psychologist "as often as she would like'' due to ''trust issues with staff' in addition to difficulty ''understand[ing] exactly what they're trying to say" and "[m]iscommunication on both parts." Boyd Dep. [D.E. 112-3] 41-42 (deposition pages 173-74).
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expressed any communication difficulties to his therapist when there is no interpreter present for their individual therapy sessions. Compare Malterer Decl. [D.E. 112-6] ~ 13, and Boyd Dep. [D.E. 112-3] 42 (deposition page 174), with Boyd Decl. [D.E. 124-12] ~ 9. On one occasion, Boyd was interviewed "[w]ith great difficulty" by another psychiatrist to determine whether he might be eligible for discharge from the CTP. Boyd Dep. [D.E. 112-3] 40 (deposition page 172). Boyd had no advance notice of the meeting and did not request an interpreter during the meeting. Id. 41 (deposition page 173).
Butner provides plaintiffs with additional auxiliary aids. Since at least 2010, Heyer has been assigned an inmate companion ("ICP") ''to assist in [his] everyday needs and functioning." Willis Decl. [D.E. 112-2] ~ 26; see Heyer Dep. [D.E. 112-4] 10 (deposition page 97); Heyer Decl. [D.E. 124-11] ~~5-6. ICPs are not certified ASL interpreters. See Pls.' Ex. B [D.E. 124-2] 27-30 (Cokely Report pages 25-28); Pis.' Ex. M [D.E. 124-13] 3 (defendants' responses to plaintiffs' requests for admissions). Heyer's ICPs have assisted him by communicating his food requests during meals, accompanying him to the inmate commissary to purchase goods, and notifying him ofmealtime announcements made over the loudspeaker. Heyer Dep. [D.E. 112-4] 11-12 (deposition pages 99-100). Boyd is not currently assigned an ICP, and the parties dispute whether he has ever requested one. Compare Boyd Dep. [D.E. 124-10] 25-26 (deposition pages 103--04), and Boyd Decl. [D.E. 124-12] ~ 5, with Willis Decl. [D.E. 112-2] ~ 27.
Butner has provided Boyd "hearing aids for both ears, a COM-Pilot with remote microphone, and a Y-cord that enables him to hear via an FM signal." Evans Decl. [D.E. 112-5] ~ 10; cf. Boyd Dep. [D.E.112-3] 19-20,42(depositionpages62--63, 174). Boydusedtohavesignificantdifficulty obtaining hearing aid batteries, and "was expected to go for a week without a hearing aid." Boyd Dep. [D.E. 112-3] 19 (deposition page 62); see Am. Compl. ~ 123. When Boyd complained to
6
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Butner staff about the problem, ''they[] made it ... so that any one of us that have the hearing aids can get a battery at any pill line call." Boyd Dep. [D.E. 112-3] 19 (deposition page 62). Boyd further acknowledges that Butner has now provided him with hearing aids that "are top ofthe line. They're new and they're about the most powerful they make." Id. [D.E. 112-3] 18 (deposition page 59); see Defs.' Resp. Opp'n Pis.' Mot. Part. Summ. J., Ex. 24 [D.E. 130-11] 2 (June 6, 2014 medical note indicating that Boyd "stated he understand every thing with his new hearing aids"). In 2011, Butner also provided Boyd with a whiteboard. Boyd Dep. [D.E. 124-10] 12 (deposition page 81).
Butner does not provide either Heyer or Boyd with an interpreter for "ancillary activities . . . . such as Yoga or Horticulture" or socializing with other CTP inmates, or for CTP evening meetings, which "generally occur two times a week after hours when treatment staff have left the facility." Malterer Decl. [D.E. 112-6] ,, 17, 19; see Heyer Decl. [D.E. 124-11] ,, 10--11; Boyd Decl. [D.E. 124-12], 10; HernandezDep. [D.E. 124-14] 37-38,40(depositionpages 114-15, 120); Am. Compl. , 49. At these evening meetings, "an inmate-recorder writes down all relevant information discussed" and"[u] sually the following day, these notes are read aloud at the community meeting where a[n] ... interpreter is present to interpret." Malterer Decl. [D.E. 112-6] , 19; cf. Boyd Decl. [D.E. 124-12], 10 (describing the minutes as "a quick recap"). Heyer receives interpretive assistance during the meetings from two other CTP inmates, including Boyd. Heyer Dep. [D.E. 112-4] 13--14 (deposition pages 102--03).
The CTP treatment team believes that ancillary activities "assist the overall process" by "maximiz[ing] the opportunities for therapeutic gain and generalization." Hernandez Dep. [D.E. 124-14] 26 (deposition page 95). "[P]articipating in the informal activities ofthe [CTP] therapeutic community ... is essential to treatment, treatment outcome, and essential to [the treatment team's]
7
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evaluationofprogress." Id. [D.£.124-14] 31 (deposition page 100). TheCTPtreatmentteam "ha[s] ongoing concerns about [Heyer's] ability to extract maximum benefit from the therapeutic community as a treatment modality" without an interpreter and has an "ongoing dialogue . . . to consider when do [they] need to provide more, expanded scope ofservices" to Heyer. Id. [D.E. 12414] 42 (deposition page 176); see Hernandez Dep. [D.E. 128-4] 4 (deposition page 174).
B.
"Heyer has never been sanctioned through a disciplinary hearing while incarcerated with the BOP." Willis Decl. [D.E. 112-2] ~ 15; cf. Heyer Dep. [D.E. 112-4] 16 (deposition page129); Am. Compl.~ 50. Should Heyer face a disciplinary proceeding, ''the BOP will provide inmate Heyer with a qualified interpreter through either in-person interpreting services or video remote interpreting ('VRI') services." Willis Decl. [D.E. 112-2] ~ 16. Butner's Unit Disciplinary Committee ("UDC") has sanctioned Boyd on six occasions. Id. ~ 18. The UDC sanctioned Boyd with the loss of commissary privileges, use ofthe inmate telephone, and visitation privileges, and removal from work detail for periods oftime ranging from 60 days to one year. ld. ~ 18. Butner did not provide Boyd with an interpreter for any disciplinary proceeding against him until September 2013, when an interpreter informed Boyd ofhis charges butwas not present "for any other aspect ofthat proceeding, including the hearing itself." Boyd Decl. [D.E. 124-12] ~~ 13-14; see Boyd Dep. [D.E. 112-3] 38 (deposition page 149). Defendants indicate that in any future disciplinary proceeding, ''the BOP will provide inmate Boyd with a qualified interpreter upon his request through either in-person interpreting services or VRI, provided that other auxiliary aids, such as hearing aids, written materials, etc., do not offer a means of effective communication." Willis Decl. [D.E. 112-2] ~ 17. Boyd alleges that his unit counselor, who presides over Boyd's disciplinary proceedings, "has repeatedly told Mr. Boyd that he does not believe Mr. Boyd is deaf and has refused him effective
8
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communication in the form ofa qualified ASL interpreter and other auxiliary aids on this ground." Am. Compl. ~~ 15, 50.
c.
At Butner, Heyer and Boyd reside on a housing unit known as the Maryland Unit. See,~.
HeyerDecl. [D.E. 124-11] ~ 6; BoydDep. [D.E. 124-10] 5 (deposition page 74). The Maryland Unit
always has had twelve emergency notification strobe lights installed throughout the unit, and in March 2014, "Butner installed four additional emergency strobe lights in four individual cells in the Maryland Unit." Willis Decl. [D.E. 112-2] ~ 23; see Heyer Decl. [D.E. 124-11] ~ 15; Boyd Decl. [D.E. 124-12] ~ 19. "Butner also has a policy and procedure in place that requires correctional officers to conduct a thorough search of each room and all other areas to ascertain if everyone has been evacuated in the event ofan emergency." Willis Decl. [D.E. 112-2] ~ 25. Heyer states that on one occasion, "[a]nother inmate-not a BOP staff member-had to physically retrieve" him from his cell at night during a fire alarm "because ofthe similarity between the new flashing strobe light and the periodic flashing of BOP staffflashlights in my window at night." Heyer Decl. [D.E. 12411] ~ 16. Heyer and Boyd are both assigned to cells that contain a strobe light, and will continue to remain assigned to those cells "[a]bsent any exigent circumstances." Willis Decl. ~ 24; see Heyer Decl. [D.E. 124-11] ~ 15; Boyd Decl. [D.E. 124-12] ~ 19. Heyer and Boyd cannot see any of the strobe lights ifthey are "in the shower in the common bathroom area." Heyer Decl. [D.E. 124-11] ~ 16; Boyd Decl. [D.E. 124-12] ~ 19. Butner has not installed any other safety devices, such as ''vibrating pagers, vibrating watches, vibrating bed devices, or message boards." Am. Compl. ~ 60; see also Heyer Dep. [D.E. 112-4] 13 (deposition page 102) (indicating that staff notify Heyer of alarms by waving their arms). Additionally, Butner has denied Boyd's request for a vibrating alarm
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clock to assist him in ensuring that he wakes up in time to attend morning CTP meetings. Boyd Decl. [D.E. 124-12] ~ 20.
D.
"Plaintiffs cannot use a telephone in the same way as a hearing person. Instead, they require a TTY, a videophone, or a CapTel phone." Am. Compl. ~53. Heyer and Boyd have access to two TTY devices at Butner. Willis Decl. [D.E. 112-2] ~ 19; see Pls.' Ex. FF [D.E. 122-4] (log of TTY calls); cf. Am. Compl. ~54 ("The Maryland Unit has only one TTY device"); Boyd Decl. [D.E. 12412] ~~ 15-17. Butner provided TTY training to the four members ofthe Maryland Unit Team staff, along with ''the various Lieutenants, the two chaplains assigned to FCI Butner, and all other unit team members located at" Butner. Willis Decl. [D.E. 112-2] ~ 19; cf. Am. Compl. ~54.
Plaintiffs allege that their access to the TTY devices "is regularly restricted or denied." Am. Compl. ~56; see Heyer Decl. [D.E. 124-11] ~ 13; Boyd Decl. [D.E. 124-12] ~ 15; Pls.' Ex. EE [D.E. 124-30] (handwritten notes indicating denied requests); Boyd Dep. [D.E. 124-10] 27 (deposition page 11 0); cf. Weaver Dep. [D.E. 112-9] 5 (deposition page 201) (acknowledging that "sometimes you can't just walk in my office and say, hey, I need to make a phone call right this minute"). The parties dispute whether plaintiffs are required to submit a formal written request to use the TTY. Compare Boyd Dep. [D.E. 124-10] 27 (deposition page 110), with Weaver Dep. [D.E. 112-9] 5-6 (deposition pages 201--02). During this litigation, Butner staff have increased plaintiffs' access to the TTY device until 9:00 p.m. on certain weekdays and will coordinate weekend access so long as "Heyer and Boyd ... request the TTY call from their Unit Team by 10:00 am on Friday." Willis Decl. [D.E. 112-2] ~~ 20, 22. Non-deafCTP inmates are generally not required to request advance permission to use the telephone. Weaver Dep. [D.E. 112-9] 3 (deposition page 196).
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For security reasons, non-deaf CTP inmates must use Butner's inmate telephone system, which records conversations, limits telephone calls to fifteen minutes,4 and prohibits calls to certain numbers. WeaverDep. [D.E. 112-9] 3-4,9 (deposition pages 196,200, 240). The nature ofa TTY device presents security concerns for Butner officials, because it must be placed on an unmonitored staff telephone line. Weaver Dep. [D.E. 112-9] 4-5 (deposition pages 200-01); see Willis Decl. [D.E. 112-2] ~ 21. Thus, Butner "[s]taffmust physically monitor the use ofthe TTY to ensure that the inmate is not tampering with the equipment, and to ensure that the conversation is being recorded ... in order to preserve the security and orderly management of the institution and to protect the public." Willis Decl. [D.E. 112-2] ~ 21. Boyd states that a Florida state prison permitted him to own a TTY device, ''which was stored securely in an officer's station when not in use'' and was made available upon request. Boyd Decl. [D.E. 124-12] ~ 18.
In May 2013, the BOP evaluated ''the potential use of videophones at the Federal Correctional Complex in Tucson, Arizona," and concluded that videophone technology is not feasible for federal inmates due to "conflicts between use of the videophone and both BOP and Department ofJustice IT security requirements," security risks, and a lack ofcompatibility between videophones and the BOP's telephone system. Craig Decl. [D.E. 112-11] ~~ 3-6. In 2010, a Virginia state prison entered into an agreement to provide a videophone for its deaf inmates and "implemented polices and procedures ... [which] include[] monitoring, recording, and storing, as well as blocking to prevent recording and monitoring ofattorney-client communications." Pls.' Ex.
4 "Heyer and Boyd are routinely allowed to exceed this maximum time limit when using the TTY device." Willis Decl. ~ 22; see Boyd Dep. [D.E. 112-3] 30-31 (deposition pages 122-23); Heyer Dep. [D.E. 124-9] 44 (deposition page 163). Butner also does not require Heyer and Boyd to pay for their ''telephone calls, unlike hearing inmates who must pay for each minute oftelephone use." Willis Decl. ~ 22; see Boyd Dep. [D.E. 112-3] 31 (deposition page 123).
11
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R [D.E. 124-18] 20 (December 11, 2013 expert report of Richard Ray, page 19). Both Heyer and Boyd have access to the BOP's inmate email system, and use it to communicate with family members, friends, and attorneys. Boyd Dep. [D.E. 112-3] 32-33 (deposition pages 124-25); Heyer Dep. [D.E. 112-4] 37-38 (deposition pages 165--66).
E.
In December 2012, Butner began providing ASL interpreters to plaintiffs for medical appointments. See Jacobs Dep. [D.E. 124-15] 3 (deposition page 81); Evans Decl. [D.E. 112-5], 7; cf. Heyer Dep. [D.E. 112-4] 19 (deposition page 133). Even after December 2012, however, Butner does not always provide plaintiffs with an ASL interpreter for all medical visits or encounters. JacobsDep. [D.E.124-15] 27-30(depositionpages 160--63); BoydDecl. [D.E.124-12] , 12; Evans Decl. [D.E. 112-5], 11; Jacobs Dep. [D.E. 130-10] 8-9 (deposition pages 157-58) (testifying about the difficulties presented by Butner's medical records system in assisting her with knowing when to schedule interpreters). Butner has contemplated providing ASL interpreters to plaintiffs via VRI for medical emergencies, but has not yet done so. Compare Evans Decl. [D.E. 112-5], 9 (Butner "has identified a provider and secured a contract so that VRI services will be available in the very near future to Mr. Heyer."), with Craig Dep. [D.E. 128-7] 9 (deposition page 155) ("[T]here has been a waiver obtained for VRI at Butner; but ... it's not been implemented .. . . [b]ecause the policy decision has been made not to implement it."), and Andrews Decl. [D.E. 441], 5 ("FCI Butner is no longer considering [VRI] at this time."), and Defs.' Resp. Opp'n Pis.' Mot. Part. Summ. J. [D.E. 130] 24-25. The BOP has provided VRI services for medical encounters at USP-Tucson since 2012. See Pis.' Ex. P [D.E. 124-16] 4 (defendants' response to interrogatories); cf. Craig Dep. [D.E. 128-7] 8-9 (deposition pages 154-55) (noting that VRI ''was the local solution
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implemented as a result of that litigation"). A Virginia state prison also provides VRI for deaf inmates' medical encounters. See Marano Dep. [D.E. 128-6] 27-28 (deposition pages 26-27).
Between 2008 and 2012, plaintiffs had a number of health conditions requiring medical treatment, including seizures, Bell's Palsy, high blood pressure, high cholesterol, broken teeth, and tooth infections. Am. Compl. ~~37-48; HeyerDep. [D.E. 112-4] 20-33 (deposition pages 134-47);
Heyer Decl. [D.E. 124-11] ~ 12; Boyd Decl. [D.E. 124-12] mf 11-12. Without an ASL interpreter,
Heyer has had to rely on either Boyd or an ICP to assist him at his medical appointments. Heyer Decl. [D.E. 124-11] ~ 12; HeyerDep. [D.E. 112-4] 17-19 (deposition pages 131-33); Pis.' Ex. X [D.E. 122-11] (May 7, 2013 medical note indicating that Heyer's "interpreter was inmate Sheraden"); Jacobs Dep. [D.E. 124-15] 30 (deposition page 163). Defendants acknowledge that this occurred "regularly, frequently maybe," Jacobs Dep. [D.E. 124-15] 5 (deposition page 97), even though the process raised legal and privacy concerns. See Pis.' Ex. Z [D.E. 122-13] (July 6, 2012 email from Steinour); Johns Dep. [D.E. 124-22] 6 (deposition page 60); Andrews Dep. [D.E. 124-27] 5-6 (deposition pages 137-38).5 On AprilS, 2013, a radiologist was unable to perform a CT scan with contrast on Heyer because he had no interpreter with him and the radiologist could not "screen or clear" Heyer for the scan. Pis.' Ex. W [D.E. 122-1 0] 2. The radiologist did perform aCT scan without contrast. Id. Heyer received another CT scan a few days later, and Jacobs testified that her failure to schedule an interpreter on AprilS was inadvertent. Jacobs Dep. [D.E. 124-15] 27-28 (deposition pages 160-61). In May 2013, Heyer suffered from a seizure after missing three days of a prescription medication. Pis.' Ex. X [D.E. 122-11] 2. Heyer "requested to change his pill line
5 The court has dismissed plaintiffs' Fifth Amendment claim alleging a right to medical privacy. Heyer, 2013 WL 943406, at *3.
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medication from am to noon, because he is having a problem to wake up in the morning for his pills," and his medical provider ordered the schedule change. Id. 2-4.
F.
Lynn McLaughlin is a BOP chaplain assigned to "provide pastoral care and programming to inmates in the CTP unit." McLaughlin Decl. [D.E. 112-12] ~ 4. The BOP provides these "inmates with a qualified interpreter ... during religious ceremonies or programs offered by FCI Butner'' so long as the inmate requests such accommodation at least 72 hours in advance, in order to "allow staff to schedule an interpreter from the existing contract." Id. ~~ 8-9.6 McLaughlin has communicated with Heyer and Boyd, and ''neither Mr. Heyer nor Mr. Boyd has ever asked [McLaughlin] for an interpreter or other auxiliary aid for the purpose of participating in a religious program or ceremony," nor "indicated to [McLaughlin] a desire to participate in any sort of congregational religious ceremony or program where an interpreter would be necessary or even helpful." ld. ~~ 4--6; cf. Heyer Dep. [D.E. 124-9] 14-31 (deposition pages 104-21) (describing requests to individuals other than McLaughlin for an interpreter for religious services); Boyd Dep. [D.E. 124-10] 9-11 (deposition pages 78-80) (describing a request in 2008 to Chaplain May).
According to the amended complaint, "Boyd consistently attended religious services at prior corrections institutions where a volunteer interpreter was consistently provided." Am. Compl. ~ 64. "Boyd has signed up to have access to the outside worship area where he can practice his chosen faith, which lends itself to individual practice." McLaughlin Decl. [D.E. 112-12] ~ 6. According to Heyer, he does not attend religious services at Butner "because there's no interpreter." Heyer Dep. [D.E. 124-9] 14 (deposition page 104).
6 The Virginia prison system does not provide paid ASL interpreters for "regular religious programs." Marano Dep. [D.E. 128-6] 86, 97, 180 (deposition pages 85, 96, 179).
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II. Summary judgment is appropriate when, after reviewing the record as a whole, no genuine issue ofmaterial fact exists and the moving party is entitled to judgment as a matter oflaw. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247 (1986). The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,323 (1986). Once the moving party has met its burden, the nonmoving party may not rest on the allegations or denials in its pleading, Anderson, 477 U.S. at 248-49, but "must come forward with specific facts showing that there is a genuine issue for trial.,, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis and quotation omitted). A trial court reviewing a motion for summary judgment should determine whether a genuine issue ofmaterial fact exists for trial. Anderson, 477 U.S. at 249. In making this determination, the court must view the evidence and the inferences drawn therefrom in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007). "When cross-motions for summaryjudgment are before a court, the court examines each motion separately, employing the familiar standard under Rule 56 ofthe Federal Rules ofCivil Procedure.,, Desmond v. PNGI Charles Town Gaming. L.L.C., 630 F.3d 351, 354 (4th Cir. 2011).
A.
In count two, plaintiffs assert that defendants violated their due process rights under the Fifth Amendment by "systematically denying Plaintiffs the means ofeffective communication, including the services of a qualified ASL interpreter, in the context of the treatment programs for persons committed pursuant to [section] 4248.,, Am. Compl. ~ 99.
"[C]ivil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.,, Addington v. Texas, 441 U.S. 418, 425 (1979). Thus, the Fifth
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Amendment generally prohibits civilly-committed persons from being subjected to punitive confinement conditions. See,~' Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982); Jones v. Blanas, 393 F.3d 918, 931-32 (9th Cir. 2004). For an individual who is involuntarily committed, "due process requires that the conditions and duration of confinement . . . bear some reasonable relation to the purpose for which [the person is civilly] committed." Seling v. Young, 531 U.S. 250, 265 (2001). Thus, involuntarily-committed persons "enjoy[] constitutionally protected interests in conditions ofreasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests.'' Youngberg, 457 U.S. at 324.
"In determining what is 'reasonable' ... courts must show deference to the judgment exercised by a qualified professional." Id. at 322; see Lane v. Williams, 689 F.3d 879, 882-83 (7th Cir. 2012); Allison v. Snyder, 332 F.3d 1076, 1080-81 (7th Cir. 2003). Moreover, the Supreme Court has "never held that the Constitution prevents a State from civilly detaining those for whom no treatment is available, but who nevertheless pose a danger to others." Kansas v. Hendricks, 521 U.S. 346,366 (1997); see United States v. Comstock, 560 U.S. 126, 131 (2010) (noting that pursuant to 18 U.S.C.§ 4247(e), "[c]onfinement in the federal facility will last until ... the person's mental condition improves to the point where he is no longer dangerous (with or without appropriate ongoing treatment)" or until a state assumes custody); Strutton v. Meade, 668 F.3d 549, 557 (8th Cir.), cert. denied, 133 S. Ct. 124 (2012); Burch v. Jordan, 444 F. App'x 236, 238-39 (lOth Cir. 2011) (unpublished); Conover v. MIDn, Civ. A. No. 11-6324 PGS, 2013 WL 1145517, at *6-7 (D.N.J. Mar. 18, 2013) (unpublished); Semler v. Ludem~ Civ. No. 09-0732 ADMSRN, 2010 WL 145275,at *26(D. Minn. Jan. 8,2010) (unpublished); but see Shm:pv. Weston,233 F.3d 1166, 1172 (9th Cir. 2000) (stating that the "Due Process Clause requires states to provide civilly-committed persons with access to mental health treatment that gives them a realistic opportunity to be cured and
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released"); cf. Leamer v. Fauver, 288 F.3d 532, 544-45 (3d Cir. 2002) (holding that where an imprisoned criminal defendant's confinement and treatment are "inextricably linked," then the defendant has a "liberty interest in treatment [that] is fundamental and cognizable for purposes of both the procedural and substantive due process analyses"). Furthermore, ''the Constitution does not immediately fall into line behind the majority view of a committee appointed by the American Psychiatric Association." West v. Schwebke, 333 F.3d 745, 749 (7th Cir. 2003); see United States v. Caporale, 701 F.3d 128, 135-37 {4th Cir. 2012); Alliso!!, 332 F.3d at 1081.
Although plaintiffs have been detained at Butner since 2008, they chose to not enter the CTP until2012. Defendants secured interpreter services for Heyer within two months after he entered the CTP and within seven months after Boyd entered the CTP. See Pls.' Mem. Supp. Mot. Part. Summ. J. [D.E. 128] 9-10. Plaintiffs do not argue that defendants failed to provide them with any treatment. Rather, they contend that this delay in getting interpreter services once they joined the CTP, and the inherent limitations in the effectiveness ofthe CTP for them, may have some effect on how long they remain involuntarily committed. See id. 25-26. Thus, plaintiffs claim that defendants thereby violated their procedural and substantive due process rights. See id.
As for plaintiffs' procedural due process argument, plaintiffs contend that they were denied "constitutionally adequate procedures" because they can not be '"heard' in a 'meaningful manner"' without qualified ASL interpreters. Pls.' Resp. Opp'n Defs.' Mot. Summ. J. [D.E. 124] 19-20; see Pls.' Mem. Supp. Mot. Part. Summ. J. [D.E. 128] 9-10.7 Defendants acknowledge that Heyer
7 Plaintiffs' memorandum does a poor job of clarifying on what theory plaintiffs base this claim. However, plaintiffs' version ofthe facts implies that their argument is based, in part, on the idea that plaintiffs' inability to "participate meaningfully in the CTP program" violated at least Boyd's due process rights by keeping him from "requesting a new commitment hearing" pursuant to 18 U.S.C. § 4247(h). See Pis.' Mem. Supp. Mot. Part. Summ. J. [D.E. 128] 10. To the extent plaintiffs rely on this theory, the court rejects the argument because there is no evidence that Boyd
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and Boyd did not have access to qualified ASL interpreters until September 2012, but claim that ''the lack of interpreters had minimal effect on [their] progress in treatment" and that both Heyer and Boyd completed phase one ofthe treatment plan in a time-frame consistent with, if not faster, than
"most other hearing inmates in the CTP." Defs.' Resp. Opp'nPls.' Mot. Part. Summ. J. [D.E. 130]
4--12. Plaintiffs have failed to raise a genuine issue of material facts concerning whether the lack
of ASL interpreters for their first few months of CTP treatment resulted in an "atypical and significant" hardship or hindered their progress in such a way as to affect how long plaintiffs may remain involuntarily committed. See Sandin v. Conner, 515 U.S. 472, 484--87 (1995) ("Nor does [plaintiffs'] situationpresent a case where the [defendants'] actions will inevitably affectthe duration of [their] sentence....The chance that [it] will alter the balance is simply too attenuated to invoke the procedural guarantees ofthe Due Process Clause."); Beebe v. Heil, 333 F. Supp. 2d 1011, 1017 (D. Colo. 2004) (noting that in determining whether a civilly committed person has suffered a procedural due process violation, courts must consider whether the limitation suffered "constitutes an 'atypical and significant' hardship"). Moreover, defendants have agreed to provide plaintiffs with interpreter services upon request for all future individual therapy sessions, see Malterer Decl. [D.E. 112-6] ,, 7, 13, and plaintiffs have not raised a genuine issue of material fact concerning whether the lack ofinterpreters during ancillary activities has resulted in an atypical and significant hardship. Thus, although the parties dispute several facts, plaintiffs have failed to raise a genuine
ever intended or attempted to request a hearing or that the lack of ASL interpreters affected his ability to do so.
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issue ofmaterial fact regarding whether they have been deprived of a cognizable liberty interest.8
As for plaintiffs' substantive due process argument, plaintiffs have failed to raise a genuine issue of material fact. See,~' Washington v. Glucksberg, 521 U.S. 702, 719-35 (1997); Lopez
v. Christie, Civ. A. No. 10-3725 SRC, 2010 WL 4940968, at *11 (D.N.J. Nov. 24, 2010)
(unpublished). Thus, the court denies plaintiffs' motion for partial summary judgment, and grants
defendants' motion for summary judgment on this claim.
B.
In count three, plaintiffs assert that defendants violated their due process rights under the
FifthAmendment by failing to provide ASL interpreters in connectionwith disciplinary proceedings.
Am. Compl. ,-r 104. Placement ofa civil detainee "in a prison, subject to the institution's usual rules
ofconduct," does not per se signify punishment. Allison, 332 F.3d at 1079. "Disciplinary measures
that do not substantially worsen the conditions ofconfinement ofa lawfully confined person are not
actionable under the due process clause, ... regardless of whether the confinement is criminal or
civil." Miller v. Dobier, 634 F.3d 412, 414--15 (7th Cir. 2011) (citation omitted). "Put another way,
unless the deprivation ofliberty is in some way extreme, then the Constitution does not require that
a prisoner be afforded any process at all prior to deprivations beyond that incident to normal prison
8 Plaintiffs' confinement constitutes a deprivation of liberty. The Fourth Circuit, however, has not decided whether civilly-committedpersons have a liberty interest inmental-healthtreatment, and there appears to be a circuit split on the issue. Compare Strutton 668 F.3d at 557, and Burch, 444 F. App'x at 238, with SbMp, 233 F.3d at 1172. Here, plaintiffs cleverly claim that the liberty interest at stake is an extended confinement issue, rather than a treatment issue. The court recognizes, however, that this "back-door" approach essentially questions the adequacy ofthe CTP treatment provided to plaintiffs. See Pis.' Resp. Opp'n Defs.' Mot. Summ. J. [D.E. 124] 19-20. Nevertheless, this courtneed not decide whether plaintiffs have a liberty interest in receiving mentalhealth treatment because, assuming without deciding that plaintiffs have a cognizable liberty interest in receiving mental-health treatment, plaintiffs have failed to raise a genuine issue on whether they have been meaningfully deprived ofthat interest.
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life." Deavers v. Santiago, 243 F. App'x 719,721 (3d Cir. 2007) (unpublished) (emphasis omitted). As for Boyd, Boyd has failed to demonstrate that the disciplinary proceedings subjected him
to sanctions that dramatically worsened his confinement terms. Boyd's temporary loss of certain privileges does not constitute the type ofextreme deprivation that is actionable under the due process clause. See,~' Strutton, 668 F.3d at 558; English v. Johns, No. 5:11-CT-3206-D, 2014 WL 555661, at *7 (E.D.N.C. Feb. 11, 2014) (unpublished), aff'd, 582 F. App'x 229 (4th Cir. 2014) (per curiam) (unpublished); Timms v. Johns, No. 5:10-CT-3210--BO, 2013 WL 6577379, at *5 (E.D.N.C. Dec. 13, 2013) (unpublished); Francis v. Johns, No. 5:11--CT-3005-FL, 2013 WL 1309285, at *7 (E.D.N.C. Mar. 28, 2013) (unpublished). Thus, the court grants summary judgment to defendants on Boyd's claim.
As for Heyer, Heyer has never been subject to disciplinary proceedings as a detainee at Butner. Thus, Heyer lacks standing to assert a due process claim concerning disciplinary proceedings, and the court dismisses count three without prejudice as to Heyer. See,~' Lewis v. Casey, 518 U.S. 343,358 n.6 (1996); Lujan v. Defenders ofWildlife, 504 U.S. 555,560--61 (1992).
c.
The parties analyze counts four and six together in their cross motions for summary judgment. See Defs.' Mem. Supp. Mot. Summ. J. [D.E. 112] 45-50; Pls.' Mem. Supp. Mot. Part. Summ. J. [D.E. 128] 26-28. Incountfour,plaintiffsallegeaFifthAmendmentdueprocessviolation because defendants' failure to provide them with the assistance of an interpreter and other accommodations for their deafness resulted in constitutionally-inadequate medical examinations and treatment. Am. Compl. ~~ 106-12. In count six, Boyd alleges that defendants failed to provide him adequate medical treatment in the form of access to functioning batteries for his hearing aids. Am. Compl. ~~ 120--26.
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To establish a Fifth Amendment claim for denial of medical care, a civil detainee must establish "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.'' Estelle v. Gamble, 429 U.S. 97, 106 (1976).9 To act with deliberate indifference, a defendant must know of and purposefully ignore "an excessive risk to inmate health or safety." Farmer v. Brennan, 511 U.S. 825, 837 (1994). "[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." ld.; see Makdessi v. Fields, No. 13-7606,2015 WL 1062747, at *5-6 (4th Cir. Mar. 12, 2015); De'lonta v. Johnson, 708 F.3d 520, 525 (4th Cir. 2013). It is "obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause.'' Whitley v. Albers, 475 U.S. 312, 319 (1986), abrogated on other grounds by Wilkins v. Gaddy, 559 U.S. 34 (2010). "In order to establish a claim of deliberate indifference to a medical need, the need must be both apparent and serious, and the denial ofattention must be both deliberate and without legitimate penological objective.'' Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999); Iko v. Shreve, 535 F.3d 225, 241-42 (4th Cir. 2008).
Deliberate indifference "is a higher standard for culpability than mere negligence or even civil recklessness, and as a consequence, many acts or omissions that would constitute medical malpractice will not rise to the level ofdeliberate indifference.'' Jackson v. Lightsey. 775 F.3d 170, 178 (4th Cir. 2014); see Estelle, 429 U.S. at 105--06; Iko, 535 F.3dat241; De'lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003); GraysoD,195 F.3d at 695. Instead, an inmate must prove that the
9 As federal civil detainees, plaintiffs' claims ofdeficient medical care ''properly arise[] under the Due Process Clause ofthe Fifth Amendment; nevertheless, the legal standard employed for civil commitment claims under the Due Process Clause is largely the same as that used in analyzing prisoners' Eighth Amendment claims.'' Hicks v. James, 255 F. App'x 744, 748 (4th Cir. 2007) (per curiam) (unpublished) (collecting cases).
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medical provider's actions (or inactions) were so "grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness." See Jackson v. Sampson, 536 F. App'x 356, 357 (4th Cir. 2013) (per cwiam) (unpublished) (quotation omitted). A detainee's mere disagreement with a medical provider's course of treatment will not support a Fifth Amendment claim. Jackson, 536 F. App'x at 357; Russell v. Sheffer, 528 F.2d 318,319 (4th Cir. 1975) (per cwiam).
Boyd appears to have abandoned count six. See Pis.' Mem. Supp. Mot. Part. Summ. J. [D.E. 128] 26-28 (focusing only on the need for interpreters for medical encounters). In any event, defendants are entitled to summary judgment on the claim. Notably, Boyd's testimony shows that when he complained to Butner staffabout both his need for increased access to hearing aid batteries and the quality ofthe batteries provided, Butner staffresponded by dramatically increasing his access and providing him with ''top ofthe line" hearing aids. Thus, Boyd has failed to show that defendants were deliberately indifferent to a serious medical need, and the court grants summary judgment to defendants on count six ofthe amended complaint, and denies plaintiffs' motion for partial summary judgment on count six.
As for count four, the record shows that without an ASL interpreter at medical encounters, plaintiffs-Heyer in particular-do not receive optimal medical care. The constitution, however, does not require optimal medical care. It requires "adequate" medical care. Estelle, 429 U.S. at 105. Although plaintiffs cite several cases fmding that a failure to provide deaf patients with ASL interpreters for medical treatment violates the Rehabilitation Act ("RA"), the court must determine whether such a failure constitutes deliberate indifference under the Fifth Amendment. See White v. City ofTacom~ No. C12-5987 RBL, 2014 WL 172037, at *15-16 (W.D. Wash. Jan. 15, 2014) (unpublished) (denying summary judgment on a RA claim for failure to provide ASL interpreter for
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medical treatment, but granting summary judgment on a section 1983 claim). On this record, the court concludes that it does not. See,~. Foreman v. Bureau of Prisons, No. 06-1274, 2007 WL 108457, at *4 (3d Cir. Jan. 16, 2007) (per curiam) (unpublished); Morales v. Fischer, No. 13-CV-6134 EAW, 2014 WL4705108, at* 12 (W.D.N.Y. Sept. 22, 2014), appeal filed, No. 14-3881 (2dCir. Oct. 16,2014); Escobarv. Garraghty, No. Civ. A. 2:02CV132, 2002 WL 31953499, at *2-3 (E.D. Va. Apr. 10, 2002) (unpublished), aff'd, 37 F. App'x 674 (4th Cir. 2002) (per curiam) (unpublished). In so holding, the court notes that plaintiffs do not argue that they have ever suffered any adverse medical condition as a direct result of not having an ASL interpreter for medical examinations. See Foremm1,2007 WL 108457, at *4; Franklin v. District ofColumbi~ 163 F.3d 625, 636-37 (D.C. Cir. 1998).10 Therefore, plaintiffs have failed to show that defendants were deliberately indifferent to a serious medical need, and the court grants summary judgment to defendants on count four of the amended complaint, and denies plaintiffs' motion for partial summary judgment on count four.
D.
Count seven asserts that defendants violated plaintiffs' Fifth Amendment right to a reasonably safe environment by failing to "provide adequate visual alarms, pagers, or message boards that would alert Plaintiffs to an emergency." Am. Compl. ~ 130. Plaintiffs enjoy a constitutional right to "reasonable conditions of safety," which is something "less than absolute safety." Youngberg, 457 U.S. at 321-22; see Hydrick v. Hunter, 500 F.3d 978, 994, 998 (9th Cir. 2007) (analyzing a class of detainees' claim of failure to protect under standard "applicable to
10 Heyer's April 2013 CT scan and May 2013 seizure do not create a genuine issue of material fact on count six. Notably, plaintiffs have not provided expert testimony concerning the events, and the events do not indicate a systemic deficiency in Heyer's medical care.
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prisoners under the Eighth Amendment"), vacated and remanded on other grounds, 556 U.S. 1256 (2009), reinstated in relevant part, 669 F.3d 937, 940--42 (9th Cir. 2012). Thus, defendants "must take reasonable measures to guarantee the safety ofthe inmates." Farmer, 511 U.S. at 832 (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). However, a prison official will not be liable for a failure to protect an inmate ''unless the official knows ofand disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." ld. at 837. Beyond such actual knowledge, the prison official "must also have recognized that his actions were insufficient to mitigate" the objectively serious condition or risk of harm. lko, 535 F.3d at 241 (quotation and emphasis omitted).
Plaintiffs seek more safety measures than those defendants have implemented rather than arguing that defendants have failed to provide them with any safety measures at all. Plaintiffs, however, have failed to show that defendants have drawn any inference that they are at substantial risk ofserious harm or that the safety accommodations in place have insufficiently mitigated the risk ofharm. See,~' Foreman, 2007 WL 10847, at *4; Williams v. Ulep, No. 3:06CV730, 2008 WL 5459776, at *6 (E.D. Va. Mar. 17, 2008) (unpublished), aff'd, 283 F. App'x 106 (4th Cir. 2008) (per curiam) (unpublished); Figueroa v. De~ 425 F. Supp. 2d 448,456-57 (S.D.N.Y. 2006). Thus, the court grants summary judgment to defendants on count seven.
E.
Count eight asserts that defendants violated plaintiffs' "First Amendment rights offreedom of speech by failing to provide them with telecommunication equipment necessary for them to communicate with family and friends outside of FCI Butner." Am. Compl. ~ 135. The court analyzes the claim under Turner v. Safley, 482 U.S. 78, 89-91 (1987). See Lane v. Williams, 689
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F.3d 879, 883-84 (7th Cir. 2012), Rivera v. Rogers, 224 F. App'x 148, 150-51 (3d Cir. 2007) (per curiam) (unpublished). Under Turner, the court must balance four factors to determine the reasonableness of a prison regulation that allegedly abridges an inmate's First Amendment rights, namely:
First, is there a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it? Second, are there alternative means ofexercising the right that remain open to prison inmates? Third, what impact will accommodation of the asserted constitutional right . . . have on guards and other inmates, and on the allocation ofprison resources generally? And, fourth, are ready alternatives for furthering the governmental interest available? Beard v. Banks, 548 U.S. 521, 529 (2006) (alteration in original, citations and quotations omitted); Turner, 482 U.S. at 89-91; see Morrison v. Garraghzy, 239 F.3d 648, 655 (4th Cir. 2001). In analyzing the Turner factors, the court accords "substantial deference" to the professional judgment ofprison administrators, ''who bear a significant responsibility for defining the legitimate goals ofa corrections system and for determining the most appropriate means to accomplish them." Overton v. Bazzetm,539U.S.126, 132(2003); see Youngberg,457U.S. at321-22; Bell v. Wolfish, 441 U.S. 520, 547-48 (1979); River~ 224 F. App'x at 150. "The burden, moreover, is not on the State to prove the validity ofprison regulations but on the [detainee] to disprove it." Overto!l, 539 U.S. at 132; see LaSure v. Gore, No. 9:08-CV-0320-RBH-BM, 2009 WL 1748718, at *8 n.5 (D.S.C. June 19, 2009) (unpublished). As with count seven, plaintiffs seek a different means of exercising their First Amendment rights rather than demonstrating that they have been completely denied any exercise of such rights. Simply put, plaintiffs have not demonstrated a First Amendment violation. See, ~' Lane, 689 F.3d at 884; Oliver v. Wolfenbarger, No. 07-12672, 2010 WL 148661, at *9-10 (E.D. Mich. Jan. 12, 201 0) (unpublished). Although plaintiffs assert that their "access to the TTY device is consistently
25
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delayed or restricted," Pls.' Resp. Opp'n Defs.' Mot. Summ. J. [D.E. 124] 42, they have demonstrated at most isolated instances of being unable to use the TTY immediately upon their request. Compare Pls.' Ex. EE [D.E. 124-30] (notes indicating four days when requests to use the TTY were rejected), with Pls.' Ex. FF [D.E. 122-4] (TTY phone log). Such isolated incidents do not violate the Constitution. See Doyle v. Clark, No. 1:09-CV-1150, 2010 WL 2540740, at *2 (W.D. Mich. June 15, 2010) (unpublished); see,~' Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003); Buie v. Jones, 717 F.2d 925, 926 (4th Cir. 1983); Pearson v. Simms, 345 F. Supp. 2d 515, 519-20 (D. Md. 2003), aff'd, 88 F. App'x 639 (4th Cir. 2004) (per curiam) (unpublished). Moreover, defendants have presented persuasive evidence regarding how access limitations to the TTY devices are necessary in light of the unsecured nature of the TTY connection and legitimate institutional interests, and plaintiffs have failed to raise a genuine issue of material fact concerning the validity ofthe regulation. Plaintiffs have demonstrated that Butner could implement videophone technology. See Pis.' Resp. Opp'n Defs.' Mot. Summ. J. [D.E. 124] 46--48. Nonetheless, all four Turner factors weigh in defendants' favor. See,~' Douglas v. Gusman, 567 F. Supp. 2d 877, 886-87 (E.D. La. 2008). Accordingly, the court grants summaryjudgment to defendants and denies plaintiffs' motion for partial summary judgment on count eight.
F.
Counts nine and ten assert that, in failing to provide ASL translators for religious services, defendants have burdened plaintiffs' exercise of religion in violation of the Religious Freedom Restoration Act of 1993,42 U.S.C. § 2000bb et seq. ("RFRA"), and the First Amendment. Am. Compl. ~~ 141-154. Heyer asserts that he does not attend religious services at Butner "because there's no interpreter." Heyer Dep. [D.E. 124-9] 14 (deposition page 104). Boyd asserts that he "consistently attended religious services at prior corrections institutions where a volunteer
26
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interpreter,, was provided. Am. Compl. ~ 64. Defendants contend that neither plaintiffhas requested an interpreter for religious services.
Although there is an issue offact concerning whether plaintiffs requested interpreter services or whether the lack ofan interpreter has burdened plaintiffs, exercise ofreligion, the court need not resolve that dispute. When a prisoner is no longer subject to the alleged unconstitutional condition, claims for injunctive and declaratory relief are moot. See, ~, Rendelman v. Rouse, 569 F.3d 182, 186-87 (4th Cir. 2009); Williams v. Griffm, 952 F.2d 820, 823 (4th Cir. 1991); Taylor v. Rogers, 781 F.2d 1047, 1048 n.1 (4th Cir. 1986) (per curiam). Of course, in cases where defendants voluntarily discontinue challenged activities in order to render the challenge moot, they must satisfactorily demonstrate (1) that there is "no reasonable expectation,, the alleged violation will recur; and (2) that "interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.,, Cnty. of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (quotation omitted).
Here, defendants, unequivocally state that plaintiffs will be provided, upon request, with a qualified interpreter for religious ceremonies and programs. See McLaughlin Decl. [D.E. 112-12]
~~ 8-9; Defs., Mem. Supp. Mot. Summ. J. [D.E. 112] 61. Thus, there is no reasonable expectation
that the alleged violation will recur and defendants, solution will "completely and irrevocabli, eradicate any burden the lack ofinterpreters formerly placed on plaintiffs, exercise ofreligion at FCI Butner. Accordingly, the court dismisses counts nine and ten as moot.
m.
As for the parties, motions to seal, the court has considered the motions under the governing standard. See,~, Doe v. Pub. Citizen, 749 F.3d 246,272-73 (4th Cir. 2014). The court grants the motions in part, and will keep the requested exhibits [D.E. 122, 130-1 through -14, 131] and all
27
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filings in connection with defendants' motion to further evaluate Boyd's hearing [D.E. 134, 137, 139] sealed. The court declines to seal defendants' memorandum in opposition to plaintiffs' motion for partial summary judgment [D.E. 130].
IV. In sum, the court GRANTS IN PART defendants' motion for summaryjudgment [D.E. 111 ], and DENIES plaintiffs' motion for partial summary judgment [D.E. 127]. The court DISMISSES as moot counts nine and ten ofthe amended complaint. The court DENIES defendants' motion to conduct additional testing on Boyd [D.E. 134]. The court GRANTS the parties' motions for leave to file memoranda in excess of the page limit prescribed by Local Civil Ru1e 7.2 [D.E. 121, 129], and GRANTS IN PART AND DENIES IN PART the parties' motions to seal [D.E. 123, 132, 135, 138, 140]. This action is DISMISSED. The clerk shall unseal defendants' response in opposition to plaintiffs' motion for partial summary judgment [D.E. 130] and shall close the case. SO ORDERED. This _3_1 day of March 2015.
J SC.DEVERill Chi fUnited States District Judge
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 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION No. 5:11-CT-3118-D

THOMAS HEYER and

)

ROBERT PAUL BOYD,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES BUREAU

)

OF PRISONS, et al.,

)

)

Defendants. )

ORDER

On March 31, 2015, the court granted in part defendants' motion for summary judgment, denied plaintiffs' motion for partial summary judgment, and dismissed the remaining counts of plaintiffs' complaint as moot. SeeHeyerv. U.S. BureauofPrisons, No. 5:11-CT-3118-D, 2015 WL 1470877 (E.D.N.C. Mar. 31, 2015) (unpublished). On May 27, 2015, plaintiffs filed a notice of appeal [D.E. 144], which the United States Court ofAppeals for the Fourth Circuit docketed on May 28, 2015 [D.E. 146]. The appeal remains pending.
On November 5, 2015, plaintiff Robert Boyd ("Boyd") filed a notice ''that he has some limited ability to hear and understand speech in certain contexts" and that he "intends to voluntarily dismiss his complaint in this Court and his appeal to the Fourth Circuit" along with a motion for voluntary dismissal pursuant to Federal Ru1e of Civil Procedure 41(a)(2). See Notice [D.E. 147]; Mot. Vol. Dism. [D.E. 148V Defendants contend that the court lacks jurisdiction over Boyd's

1 Boyd's co-plaintiff, Thomas Heyer, "does not intend to dismiss his complaint in this Court or his appeal to the Fourth Circuit." Notice [D.E. 147] 1. At least two circuits disfavor voluntary dismissal ofappeals in such circumstances. See Noatex Corp. v. King Constr. ofHous.. L.L.C., 732 F.3d 479, 487 (5th Cir. 2013); Tw. of Benton v. Cty. of Berrien, 570 F.2d 114, 118-19 (6th Cir. 1978).

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motion for voluntary dismissal and seek an extension of time ''to file a substantive response to Plaintiff Boyd's motion for voluntary dismissal [D.E. 148], and other additional motions as may be appropriate, within 30 days following the mandate from the Fourth Circuit." Mot. Extension [D.E. 150] 1; see Resp. Opp'n Mot. Vol. Dism. [D.E. 149].
"Once a court has dismissed a claim with prejudice, a party cannot, of course, voluntarily dismiss that same claim, without prejudice." Wilson-Cook Med.. Inc. v. Wilson, 942 F.2d 247, 252 (4th Cir. 1991). Moreover, this court lacks jurisdiction to entertain Boyd's motion. "The filing of a notice of appeal is an event ofjurisdictional significance-it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." Griggs v. Provident Consumer Disc. Co., 459 U.S. 56,58 (1982); see Doe v. Pub. Citizen, 749 F.3d 246, 258 (4th Cir. 2014); Hancock v. Chi. Title Ins. Co., No. 3:07-CV-1441, 2010 WL 3766695, at *3--4 (N.D. Tex. Sept. 28, 2010) (unpublished). Thus, the court dismisses Boyd's motion for lack of subject-matter jurisdiction. In light ofthe court's disposition of Boyd's motion, the court denies as moot defendants' motion for an extension of time.
In sum, the court DISMISSES plaintiffBoyd's motion for a voluntary dismissal [D.E. 148] and DENIES AS MOOT defendants' motion for an extension of time [D.E. 150].
SO ORDERED. This _A:_ day of January 2016.
Chief United States District Judge
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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.

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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.

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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
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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

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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
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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
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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 24hour, 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.
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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.

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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.
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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
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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 postlitigation 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 ruling4; 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.

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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

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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.”).
6 In 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).
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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
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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
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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
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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
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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).
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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
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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
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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.
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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
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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.
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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.
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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

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“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

9 The 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.
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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.

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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
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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
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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-
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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 systemwide 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

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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.

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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
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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 passwordprotected. 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 printout 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
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“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
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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.
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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
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“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 . . .
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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 midlitigation 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.
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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.
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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

11 In 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.

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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.

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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), safeenvironment 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 postlitigation 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

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 lN TIIE UNITED STATES DISTRICT COURT FOR TIIE EASTERN DISTRICT OF NORTH CAROLlNA
WESTERN DMSION No. S:11-CT-3118-D

THOMAS HEYER,

)

)

Plaintiff, )

)

v.

)

)

UNITED STATES BUREAU OF

)

PRISONS, et al.,

)

)

Defendants. )

ORDER

Thomas Heyer ("Heyer'' or ''plaintiff'') is a sexually dangerous person in the custody ofthe BureauofPrisons("BOP")pursuantto 18U.S.C. §4248. SeeUnitedStatesv.Heyer, 740F.3d284, 291-94 (4th Cir. 2014). Heyer is deafand filed this action alleging ten causes ofaction concerning his conditions of confinement at the Federal Correctional Institution in Butner, North Carolina ("FCI-Butner''). See [D.E. 1, 24]. On March 11, 2013, the court dismissed two claims. See [D.E. 46]. The parties engaged in discovery concerning the remaining claims. On March 31, 201S, the court granted defendants' motionfor ~nmmacyjudgmentconcerning Heyer's remaining claims. See , [D.E. 142]. Heyer appealed. On February 23, 2017, the United States Court of Appeals for the Fourth Circuit affirmed in part, vac~ted in part, and remanded for further proceedings. See Heyer v. U.S. Bmeau ofPrisons, 849 F.3d 202 (4th Cir. 2017).
On November 2, 2017, the parties entered into a partial settlement agreement resolving Heyer's remaining claims, except Heyer' s claim that defendants are violating his First Amendment rights by failing to provide him with videophone equipment that he claims he needs to communicate viaAmerican.Sign.Language("ASL")withpeopleoutsideofFCI-Butner. See [D.E.181, 18S]. On

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November 6 and 7, 2017, the court held a bench trial concerning Heyer's remaining claim. See [D.E. 190, 193].
The courthas consideredthe witnesses' testimony, the exhibits, the arguments, andthe entire record. The court makes the following findings of fact and conclusions of law. In doing so, the court has weighed all the evidence, considered all the arguments, and assessed the credibility ofall
\__
the witnesses. In judging witness credibility, the court has considered: (1) the demeanor of the witness; (2) any interests, bias, or prejudice the witness may have; (3) the opportunity ofthe witness to see, hear, know, and remember the events about which the witness testified; (4) whether the testimony of the witness is believable; and (5) whether the testimony comports with all other believable evidence in the case. As explained below, Heyer has failed to prove that the BOP's failure to provide him the requested videophone equipment violates the First Amendment. Thus, the court enters judgment for defendants.
I. Heyer is civilly committed to the custody ofthe Attorney General as a sexually dangerous person pursuant to the Adam Walsh Child Protection and Safety Act of2006, codified at 18 U.S.C. §§ 4247-48, and is confined at FCI-Butner. See Heyer, 740 F.3d at 287-95. Heyer was born deaf and his primary language is ASL. See [D.E. 195] 114-15 (Heyer testimony). Heyer can read, write, and effectively communicate in English, a language distinct from ASL. See,~ [D.E. 195] 25, 39, 41-42, 58 (Cokely testimony); [D.E. 195] 119, 124-25 (Heyer testimony). Essentially, Heyer can read and write English at the third-grade level. See,~ [D.E. 195] 25, 42, 58 (Cokely testimony); [D.E. 196] 70-75, 82-83 (Taylor testimony); Pl. Tr. Ex. 43; Pl. Tr. Ex. 167; Def. Tr. Ex. 23, at Def. 8377, Def. 7154, Def. 995; Def. Tr. Ex. 24; Def. Tr. Ex. 25, at Def. 7922; Def. Tr. Ex. 28 at Def. 6240-6244; Def. Tr. Ex. 26; Def. Tr. Ex. 27; Def. Tr. Ex. 32, at Def. 7106, Def. 7224.
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In 1987, Heyer was charged with aggravated sexual assault, sexual assault, endangering the welfare ofa child, and making a terroristic threat. See Def. Tr. Ex. 1, at Def. 7530; [D.E. 180] ~ 17; Pre-Certification Evaluation Report, United States v. Heyer, No. 5:08-HC-2183-BO, [D.E. 36-1] 6 (E.D.N.C. Mar. 31, 2011). In 1989, Heyer pleaded guilty to making a terroristic threat and was sentenced to an indeterminate term in a state hospital. See Heyer, 740 F.3d at 287. In 1993, Heyer was indicted on charges of kidnapping, criminal restraint, unlawful possession of a·weapon, and endangering the welfare of a child. See [D.E. 180] ~ 18. Heyer pleaded guilty to kidnapping and was sentenced to IO years' imprisonment. See Heyer, 730F.3dat287. Heyerkidnappeda 10-yearold boy, sexually assaulted him, tied him up, and buried him under some rubble near a local high school football field. See [D.E. 180] ~ 18; Def. Tr. Ex. 1, at Def. 7530-31; Pre-Certification EvaluationReport, United States v. Heyer, No. 5:08-HC-2183-BO, [D.E. 36-1] 8-9 (E.D.N.C. Mar. 31,2011); [D.E.195] 129-30(Heyertestimony);Heyer, 740F.3dat287. Intotal,Heyeradmitsto molesting at least 46 children, 44 ofwhom were male. Def. Tr. Ex. 1, at Def. 7524.
In2002, Heyerpossessed approximately 180 images ofchild pornography. Id., atDef. 7532; Heyer, 740 F.3d at 287; [D.E. 195] 145 (Heyer testimony). On October 31, 2002, Heyer pleaded guilty to possession ofchild pornography in the United States District Court for the Eastern District ofTennessee. See United States v. Heyer, No. 3:02-CR-50, [D.E. 18] (E.D. Tenn. Oct. 31, 2002). Heyer also had sex with the 15-year old son of a former girlfriend. See [D.E. 195] 130 (Heyer testimony). Heyer was sentenced to 60 months' imprisonment and 3 years ofsupervised release for possessing child pornography. See United States v. Heyer, No. 3:02-CR-50, [D.E. 23] (E.D. Tenn. Mar. 24, 2003); [D.E. 180] ~ 19. In September 2007, after his release from incarceration, Heyer violated the terms of his supervised release and was sentenced to 18 months' imprisonment. See [D.E. 180] ~ 21.
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On December 18, 2008, while.Heyer was serving his sentence, the government initiated civil commitment proceedings against Heyer pursuant to 18 U.S.C. §§ 4247-48. See Certification ofa Sexually Dangerous Person, United States v. Heyer, No. 5:08-HC-2183-BO, [D.E. 1] (E.D.N.C. Dec. , 18, 2008). On May 30 and 31, 2012, the court held an evidentiary hearing concerning the
(
government's civil commitment petition. See United States v. Heyer, 879 F. Supp. 2d 487,488 (E.D.N.C. 2012). On July 9, 2012, the court found that Heyer is a sexually dangerous person and
I
committed him pursuant to 18 U.S.C. § 4248. See id. at 488-89; Judgment, United States v. Heyer, No. 5:08-HC-2183-BO, [D.E. 82] (E.D.N.C. July 9, 2012). Heyer appealed, and the Fourth Circuit affirmed. See Heyer, 740 F.3d at 287-95.
As mentioned, Heyer was born deaf and his primary language is ASL. See [D.E. 195] 114-15 (Heyer testimony). Heyer reads and writes English at the third-grade level, and he can effectively communicate in written English. See,~ [D.E. 195] 25, 39, 41-42, 58 (Cokely testimony); [D.E.196] 70-75, 82-83 {Taylor testimony); Pl. Tr. Ex. 43; Pl. Tr. Ex.167; Def. Tr. Ex. 23, at Def. 8377, Def. 7154, Def. 995; Def. Tr. Ex. 24; Def. Tr. Ex. 25, at Def. 7922; Def. Tr. Ex. 28 at Def. 6240--6244; Def. Tr. Ex. 26; Def. Tr. Ex. 27; Def. Tr. Ex. 32, at Def. 7106, Def. 7224. Heyer also has a limited ability to read lips. See [D.E. 196] 73-74 {Taylor testimony). Heyer wants the BOP to allow him to use a videophone to call people outside ofprison, including the deaf and non-deaf. Heyer contends that using a videophone will allow him to communicate via ASL. Heyer argues that the BOP's refusal to install and allow him to use a videophone violates his First Amendment rights because the BOP's decision prevents him from communicating in ASL with people outside ofprison.
Heyer named as defendants Eric H. Holder, Jr;, in his official capacity as Attorney General ofthe United States; the Uni~ States Bureau ofPrisons; Hugh J. Hurwitz, in his official capacity
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as Acting Director ofthe United States Bureau ofPrisons; Ike Eichenlaub, in his official capacity
as Regional Director ofthe United States Bureau ofPrisons Mid-Atlantic Region; Sara M. Revell,
Warden, FCC Butner; and Tracy W. Johns, Warden, FCI Butner Medium (collectively "defendants"). See [D.E. 24]. Pursuant to Federal Rule ofCivil Procedure 25(d), Hugh J. Hurwitz is substituted for Charles E. Samuels, Jr., as Acting Director ofthe United States Bureau ofPrisons, Angela P. Dunbar is substituted for Ike Eichenlaub as the Regional Director of the United States BureauofPrisons Mid-Atlantic Region, J.C. Holland is substitutedfor SaraM. Revell as the Warden of FCC Butner, Andrew Mansukhani is substituted for Tracy W. Johns as Warden ofFCI Butner Medium ("FCI-Butner"), and Matthew Whitaker is substituted for Eric H. Holder, Jr., as United States J\.ttomey General. See Fed.R. Civ. P. 25(d); [D.E. 191].
The videophone technology that Heyer seeks allows two individuals to engage in real-time, visual communication, facilitating point-to-point video communication using ASL. See [D.E. 195] 45-47 (Cokely testimony); [D.E. 195] 125-26 (Heyer testimony). The technology is similar to Skype orFaceTime. Todd Craig is the BOP's Chiefofthe Office ofSecurity Technology. See [D.E. 195] 150 (Craig testimony). Craig is a former BOP warden and also understands the Department ofJustice's and the BOP's information technology security technology requirements. Id.
Craig persuasively explained the BOP's security concerns with providing Heyer access to
r
direct point-to-pont videophone. See [D.E. 195] 159--69 (Craig testimony); [D.E. 196] 25-26, 28 (Craig testimony). Craig noted that no BOP facility is using such videophone technology as a method ofcommunication for male inmates, deafinmates, or sex offenders. See [D.E. 195] 159--69
(Craig testimony); [D.E. 180] ,r 40. Craig explained that permitting Heyer to use such technology
presents many security' risks. See [D.E. 195] 164-69 (Craig testimony). For example, such technology would permit one ofthe call participants to depict methods ofdisruption or escape and
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to introduce contraband (such as sexually explicit material). Moreover, the BOP's concerns are heightened due to Heyer's status as a sexually dangerous person and his record ofimproper behavior in the BOP. An outside call recipient could show Heyer child pornography and thereby exploit the childand undermine Heyer's sex-offendertreatment. Furthermore, the presence ofsuchvideophone technology in the housing unit at FCI-Butnerwhere Heyer lives could lead other sexually dangerous persons detained with Heyer to pressure Heyer to use the videophone technology to commit criminal activity within or outside FCI-Butner. See id.
FCI-Butner Warden Andrew Man..c:.:ukbani also testified. See [D.E. 196] 30. Warden Man.c:.:ukbani explained that installing and permitting Heyer to use the videophone technology in the housing unit where Heyer lives presents additional security concerns. See id. at 31-41. Heyer's housing unit exclusively con~ detainees who have either been civilly committed as sexually dangerous persons or who are being detained pending a hearing and decision on whether the person meets criteria for commitment as a sexually dangerous person. This civil detainee population has a history ofmanipulative behavior and actual or attempted sexual violence or childmolestation. See
Although the BOP has not agreed to install a videophone to allow Heyer to make video calls directly to other individuals, FCI-Butner (is procuring a contract to provide Video Relay Service (''VRS"). See Def. Tr. Ex. 19; [D.E. 196] 41-42 (Mansukhani testimony). VRS allows deaf individuals to place phone calls to non-deaf individuals. See Def. Tr. Ex. 19; [D.E. 195] 45-46 (Cokely testimony); [D.E. 195] 91 (Ray testimony). With VRS, a deafperson uses a videophone to contact an ASL interpreter. See [D.E. 195] 46 (Cokely testimony); [D.E. 195] 91 (Ray testimony); Pl. Tr. Ex. 99. The deaf person communicates visually with the interpreter using ASL, and the interpreter then relays the conversation orally to the non-deafperson on the call by telephone. See
'
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[D.E. 195] 46 (Cokely testimony); [D.E. 195] 91-92 (Ray testimony); [D.E. 195] 164 (Craig testimony).
Once the VRS system is operatiorial, Heyer will have access to the VRS system in a manner substantially similar to the access hearing inmates have to the BOP's inmate telephone system. See [D.E. 195] 163-64 (Craig testimony). The VRS system will be mounted to a wall in a hallway directly outside ofHeyer's unit team office. See id. Heyer will be able to make calls using the VRS system with a reasonable amount of privacy while also providing BOP staff with the ability to observe Heyer. See id. As with traditional inmate telephone privileges, Heyer's unit team will have to approve all phone numbers that Heyer wishes to contact through the VRS system. See id. Heyer typically will have access to the VRS system seven days per week from 6:00 A.M. to 10:00 P.M. See id.; Def. Tr. Ex. 20; Pl. Tr. Ex. 130; Def. Tr. Ex. 19, at Def. 9611; cf. Pl. Tr. Ex. 91. Heyer generally will be able to use the VRS for a total of 300 minutes per month. In November and December, Heyer will be able to use the VRS for 400 minutes per month. See Def. Tr. Ex. 19. Heyer will be able to use VRS to communicate with individuals, including his brother, who are not fluent in ASL. See [D.E. 195] 94-96 (Ray testimony).
The VRS system has numerous safety features that the videophone technology lacks. First, VRS calls involve an ASL interpreter, the deaf caller, and the non-deaf call recipient. The three participants are never connected visually. Rather, the deaf caller sees the ASL interpr~, and the ASL interpreter talks on the phone with the non-deaf call recipient. See [D.E. 195] 46 (Cokely testimony); [D.E. 195] 91-92 (Ray testimony); [D.E. 195] 164 (Craig testimony). Second, the BOP . will be able to monitor VRS calls in real-time or review the recordings at a later time. See [D.E. 195] 164 (Craig testimony); Pl. Tr. Ex. 150. Third, the BOP will be able to review and monitorthese calls without using an ASL interpreter because the real-time monitoring and recording will include
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the audio portion ofthe conversation that takes place between the ASL interpreter and the non-deaf recipient ofthe call. See [D.E. 195] 164 (Craig testimony).
VRS is not the only communication option available to Heyer. Heyer also can communicate . with other individuals by in-person visitation, e-mail, letters, and the teletypewriter ("'ITY") system. FCI-Butner provides 'ITY devices to deafinmates for their use in making telephone calls, and FCIButner currently has two 'ITY devices. See [D.E. 196] 76-79 (Taylor testimony). A 'ITY allows individuals to type written messages to each other using a telephone line. See [D.E. 195] 43 (Cokely testimony); [D.E. 195] 84 (Ray testimony); Pl. Tr. Ex. 99. Upon request, Heyer typically can use a 'ITY device Mondays through Fridays, between the hours of7:30 A.M. and 4:00 P.M. See [D.E. 195] 131-35 (Heyer testimony); [D.E. 196] 76-79 (Taylor testimony). A 'ITY device also is available on two evenings each week until approximately 9:00 P.M. The BOP has implemented practices to ensure deafinmates have meaningful access to a 'ITY device and has trained additional staffon operating the 'ITY. See [D.E. 19(ij 76-79 (Taylor testimony). Although Heyer has access to a 'ITY device, a decreasing number ofpeople outside ofprisons use 'ITY devices to communicate because people are choosing to use videophone technology. See [D.E.195] 43-49 (Cokely testimony). Heyer has used 'ITY, e-mail, and letters to communicate with others outside ofFCIButner. See Def. Tr. Exs. 21, 24-25; [D.E. 196] 76-77 (Taylor testimony); [D.E. 195] 121-24, 130-38 (Heyer testimony).
Craig testified concerning the 'ITY system. Craig persuasively explained why the 'ITY system presents a much l~wer risk than direct point-to-point videophone contact. See [D.E. 196] 4-10, 19-21, 23 (Craig testimony).
II. Heyer. argues that the BOP's refusal to provide him access to a videophone to call other
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individuals outside ofFCI-Butner and communicate in ASL violates his First Amendment rights. "[A] prison inmate retains those First Amendment rights that are not inconsistent with his status as aprisoner orwiththe legitimate penological objectives ofthe corrections system." Pell v. Procunier, 417 U.S. 817, 822 (1974). Such rights generally include the right to "communicate with others beyond the prison walls." Heyer, 849 F.3d at 213 (collecting cases). When a prison regulation or policy "impinges on an inmate's ability to communicate with others, it is valid ifit is reasonably related to legitimate penological objectives." Yang v. Mo. Dep't of Corr., 833 F.3d 890,894 (8th Cir. 2016) (quotation omitted); see Tumerv. Satley.482 U.S. 78,'89 (1987); Heyer, 849F.3dat213.
Civil detainees' First Amendment rights "are at least as broad as those retained by convicted prisoners." Heyer, 849 F.3d at 213. In the context ofcivil detention, "aprison regulation impinging on a civil detainee's constitutional rights is valid if reasonably related to legitimate nonpunitive governmental interests." Matherly v. Andrews, 859 F.3d 264, 282 (4th Cir. 2017) (emphasis added); see Heyer, 849 F.3d at 214 n.9.
The court analyzes Heyer's claim under Tumerv. Safley. 482 U.S. 78, 89 (1987), as modified in Matherly. See Matherly. 859 F.3d at 282; Heyer, 849 F.3d at 213; see also Lane v. Williams, 689 F.3d 879, 883-84 (7th Cir. 2012); Rivera v. Rogers, 224 F. App'x 148, 150-51 (3d Cir. 2007) (per curiam) (unpublished). Under Turner, the court must balance four factors to determine the reasonableness of a prison regulation that allegedly abridges a civil detainee's First Amendment rights:
(1) whether there is a valid, rational connection between the policy and the [legitimate, nonpunitive governmental] interest; (2) whether an alternative means of exercisingthe right remains opento [civil detainees]; (3) the impact accommodation ofthe asserted right will have on guards, other [civil detainees], and the allocation ofprisonresources; and (4) the absence ofready alternatives that fully accommodate the prisoner's rights at d~ minimii;i cost to valid penological interests.
9
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Morrison v. Garraghcy, 239 F.3d 648,655 (4th Cir. 2001); Matherly. 859 F.3d at 282 (modifying Turner factors in the context of civil detainees); see Beard v. Banks, 548 U.S. 521, 529 (2006); Turner, 482 U.S. at 89--91; Heyer, 849 F.3d at 214. In analyzing the Turner factors, the court accords "substantial deference to the professional judgment ofprison administrators, who bear a significant responsibility for defining the legitimate goals ofa corrections system and for determining the most appropriatemeanstoaccomplishthem." Overtonv.Bazzetm,539U.S.126, 132(2003);seeTumer, 482 U.S. at90; Youngbergv. Romeo,457U.S: 307, 321-22(1982); Bell v. Wolfish,441 U.S. 520, 547-48 (1979); Pell, 417 U.S. at 826-27; River@, 224 F. App'x at 150. The burden is ''not on the [BOP] to prove the validity ofprison regulations but on [Heyer] to disprove it" Overton, 539 U.S. at 132; Beard, 548 U.S. at 529; Yang. 833 F.3d at 894; LaSure v. Gore, No. 9:08-CV-320-RBH-BM,
2009 WL 1748718, at •7 n.5 (D.S.C. June 19, 2009) (unpublished).
As for the first Turner factor, a BOP ''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." Turner, 482 U.S. at 89; Heyer, 849 F.3d at 215. There is a valid, rational connection between preventing Heyer from using a videophone to directly call others outside ofFCI-Butner and the legitimate, nonpunitive governmental interests to promote safety at FCI-Butner, to protect the
\.__
public (including children), and to rehabilitate Heyer. See Overton, 539 U.S. at 133; Matherly, 859 F.3d at 282; Heyer, 849 F.~d at 215. Direct video contact between Heyer and an outside call participant would allow a call participant to transmit dangerous, inappropriate, and prohibited in.formation through ASL or other visual means, such as writings, drawings, or photographs. See [D.E. 195] 150-52, 166--69 (Craig testimony). A call participant could display this in.formation by holding the in.formation up to the camera, or less conspicuously in the background ofthe video. See [D.E. 196] 28 (Craig testimony). Moreover, the BOP might not readily detect such in.formation,
10 Case 5:11-ct-03118-D Document 205 Filed 02/12/19 Page 10 of 17

even with monitoring ofHeyer's calls, thereby endangering individuals within FCI-Butner and the public generally and inhibiting Heyer's rehabilitation. See [D.E. 195] 150-52, 166--69 (Craig . testimony); [D.E. 196] 28 (Craig testimony).
Inanalyzing the first factor, the courtnotes that Heyerhas a disturbing history ofsex offenses against children, including molesting at least 46 children and possessing child pornography, and is a sexually dangerous person. Moreover, since being certified as a sexually dangerous person, Heyer has continued to engage in improper behavior. See, ~ Def. Tr. Ex. 32, at Def. 7112, Def. 7126, Def. 7131-32,Def. 7136,Def. 7158-59,Def. 7164,Def. 7190,Def. 7203,Def. 7205,Def. 7208-09, Def. 7213, Def. 7224, Def. 7226, Def. 7232-34, Def. 7277, Def. 7280, Def. 7283, Def. 7285, Def. 7289. For example, Heyer received an incident report at FCI-Butner in July 2009 for having a 109page handwritten manuscript ofa child pornography manuscript in his cell. See [D.E. 196] 50-56 (Grover testimony). The manuscript described adult child sexual con~t, incest, and bondage. Correctional officers also found two sexually explicit books and a sexual magazine with cutouts depicting pre-pubescent boys in bathing suits and kissing. See id. at 56--57. In addition, in August 2010 and January 2011, Heyer had mail rejected due to texts describing victimization, abuse of children or dogs, and sexually violent conduct. See id. Furthermore, Heyer has dropped out ofthe treatment program for sexually dangerous people, and Heyer is housed in a unit within FCI-Butner with numerous other men who are ~'sexually dangerous" under the Adam Walsh Act. See id. at 57-58; Def. Tr. Ex. 32, at Def. 7117.
;
The BOP can consider Heyer's record ofimproper behavior in the BOP and current location inchoosing its policyto notmake videophone technology available to Heyer. S,ee Seboltv. Samuels, No. 17-2845, 2018 WL 4232075, at *2-3 (7th Cir. Sept. 6, 2018) (per curiam) (unpublished) (upholding dismissal ofFirstAmendment claim denying inmate's ability to send and receive e-mail
11 Case 5:11-ct-03118-D Document 205 Filed 02/12/19 Page 11 of 17

I
due to the warden's determination that the inmate's offense conduct and other personal history indicates a propensityto offend through the use ofe-mail or whose access to e-mail couldjeopardize the safety, security, and orderly operation ofthe correctional facility, or the protection ofthe public or staff). Directvideophone calls with outside call recipients pose a significantriskthat Heyer could receive images ofchildren during a videocall. Although the BOP can monitor videophone calls in real-time, the BOP cannot control an act by an outside call participant to exploit a child (whether in person or inaphotograph) during a videocall with Heyer. Suchpotential incidents pose a significant
risk ofharm to a child. See [D.E. 195] 167-69 (Craig testimony); [D.E. 180] ,r,r 35-44. The person
on the other end ofthe videophone call also could record the call and post its content on the Internet, thereby further exploiting the child and using BOP technology to facilitate such exploitation. Furthermore, there will be a delay intranslating any direct conversation that Heyer has in ASL into English. See [D.E. 196] 13-14 (Craig testimony). The court finds that the BOP's concerns are markedly different than those posed by using a TTY device, e-mails, or letters, or non-deaf detainees' use oftelephones. Cf. Overton, 539 U.S. at 133 ("Protecting children from harm" is "a legitimate goal."); Sebolt, 2018 WL 4232075, at *2 ("Butmonitoring emails to detect abuse imposes costs on the prison. And those costs increase when the users are likely to abuse the system because the prison must then scrutinize their emails more carefully. Prisons have a legitimate interest in limiting the costs ofdetecting unlawful communications between inmates and outsiders."); Heyer, 849 F.3d at 215 (''There is no doubt that BOP has a legitimate interest in maintaining the security ofits facilities and in protecting the public from further criminal acts by inmates and detainees."); Ximg, 833 F.3d at 895 ("If prison officials could not monitor an inmate's communications with people outside the facility in an unfamiliar language, then they would be vulnerable to escape, smuggling of contraband, and other planning ofcriminal SJCtivity."). Accordingly, the court finds
12 Case 5:11-ct-03118-D Document 205 Filed 02/12/19 Page 12 of 17

~I
I
that there is a valid, rational connection in this case between the BOP's regulation and legitimate, nonpunitive governmental interests.1
AB for the second Tum.er factor, "courts should be particularly conscious ofthe measure of judicial deference owed to corrections officials in gauging the validity ofthe regulation." Turner, 482 U.S. at 90 (quotation and alteration omitted). Moreover, "[a]lternatives to the type or amount ofspeech at issue need not be ideal[;] they need only be available." Holloway v. Magness, 666 F.3d 1076, 1080 (8th Cir. 2012); see Overton, 539 U.S. at 135 ("Alternatives ... need not be ideal."); ~ ' 833 F.3d at 895 (same).
Heyer has numerous alternative means ofeffectively communicating with individuals (both deafand non-deaf) outside ofFCI-Butner. AB for communicating with non-deafindividuals, Heyer ·canhave visitors, send and receiv~ letters and e-mails, use a TTY deceive, and soon will have access to the VRS system. See,~~' 833 F.3d at 895; Valdez v. Rosenba:mn, 302 F.3d 1039, 1049 (9th Cir. 2002). In making this finding, the court has reviewed the conflicting evidence and finds that Heyer canread, write, and effectively communicate inEnglish at the third-grade level. See, e.g.. [D.E. 195] 25, 39, 41--42, 58 (Cokely testimony); [D.E. 196] 70-75, 82-83 (Taylor testimony); Pl. Tr. Ex: 43; Pl. Tr. Ex. 167; Def. Tr. Ex. 23, at Def. 8377, Def. 7154, Def. 995; Def. Tr. Ex. 24; Def. Tr. Ex. 25, at Def. 7922; Def. Tr. Ex. 28, at Def. 6240--44; Def. Tr. Ex. 26; Def. Tr. Ex. 27; Def. Tr. Ex. 32, at Def. 7106, Def. 7224. In doing so, the court does not credit the evidence to the contrary from Dr. Denis Cokely. Cf. [D.E. 195] 22--43. The cross e,ramimrtion ofDr. Cokely revealed flaws
1 In making this finding, the court recognizes that some state prison systems allow deaf inmates (including sex offenders and civilly committed offenders) to use videophones. See [D.E.
183] ,r 21. The court also recognizes that the BOP has begun a pilot program in other institutions
housing female inmates to provide some non-deaf inmates with access to what amounts to a
videophone. See id. ,r 22. These decisions do not lessen the valid, rational connection in this case
between the BOP' s regulation and legitimate, nonpunitive governmental, interests. 13
Case 5:11-ct-03118-D Document 205 Filed 02/12/19 Page 13 of 17

i
in his methodology and opinions. See id. at 51-65. Similarly, the court does not credit Heyer's testimony that he cannot effectively read, write, and communicate in English. Compare [D.E. 195] 119-24 (Heyer testimony), with [D.E. 196] 70-75 (faylortestimony). The court also does not credit the evidence from Dr. Cokely that Heyer cannot effectively communicate using a 1TY device, email, or inperson. Cf. [D.E. 195] 44--45. Again, the cross e,ramination ofDr. Cokelyrevealed flaws in his methodology and opinions. See id. at 55-57, 65-68~ 70-74. Likewise, the cross-examination ofRichard Ray revealed flaws in his opinions. See id. at 100-05. As for communicating with deaf individuals, Heyer can have visitors, send and receive letters and e-mail, and use a 1TY device. Accordingly, thecourt finds that Heyer has effective alternative means ofcommunication.
I
As for the third Tum.er factor, a courtmust assess ''the impactaccommodationofthe asserted constitutional right will have on [correctional officers] and other [civil detainees], and on the allocation of prison resources generally." Tum.er, 482 U.S. at 90. "Jn the necessarily closed environment ofthe correctional institution few changes will have no ramifications on the liberty of others or on the use ofthe prison's limited resources for preserving institutional order." Id. "When accommodation ofan asserted right will have a significant 'ripple effect' on fellow [civil detainees] or on prison staff, courts should be particularly deferential to the informed discretion ofcorrections officials." Id.; Matherly. 859 F.3d at 282; Heyer, 849 F.3d at 216.
Th~ court finds that the' BOP cannot operate a videophone that allows for point-to-point communication between detainees and individuals outside ofFCI-Butner without a waiver ofBOP or DOJ IT security requirements. See [D.E. 195] 153-58 (Craig testimony); [D.E. 196] 15. The courtalso finds that installing andpermittingHeyerto use videophonetechnology inthe housing unit in FCI-Butner where Heyer resides presents a risk that Heyer will abuse the system and that other detainees could pressure Heyer into allowing them to use the videophone technology. See [D.E.
14 Case 5:11-ct-03118-D Document 205 Filed 02/12/19 Page 14 of 17

195] 168 (Craig testimony). The BOP also will have difficulty in real-time monitoring ofHeyer's conversations exclusively in ASL without hiring ASL interpreters at additional cost. See [D.E. 196] 31-41 (Mansukhani testimony). ,The court finds that using a videophone for direct video calls will result in"~ignificantlyless liberty and safetyfor everyone else, {correctional officers] and other [civil detainees] alike." Thornburgh v. Abbott, 490 U.S. 401,418 (1989); see Sebolt, 2018 WL 4232075, at *2-3. The court also finds that, in order to safeguard the public, the BOP would need to expend substantial resources to monitor ASL conversations in real-time. See [D.E. 196] 11-14 (Craig testimony); [D.E. 196] 31-41 (Mansukhani testimony). The court defers to the BOP's informed discretion in setting its policy againstpermitting Heyerto engage inpoint-to-pointvideo calls atFCIButner. Cf. [D.E. 196] 39-40 (Mansukhani testimony). Accordingly, the third factor weighs against Heyer.
Finally, as for the fourth Turner factor, the court considers whether a civil detainee "can point to an alternative that fully accommodates the [detainee]'s rights at de minimis cost to valid penological interests ...." Turner, 482 U.S. at 90-91; see Sebolt, 2018 WL 4232075, at *3; Matherly. 859 F.3d at 283; Heyer, 849 F.3d at 217; ~ 833 F.3d at 895. "This is not a 'least restrictive alternative' test: prison officials do not have to set up and then shoot down every conceivable alternative methodofaccommodating the claimant's constitutionalcomplaint." Turner, 482 U.S. at 90-91; Overton, 539 U.S. at 136.
Heyer argues that alternatives to a complete banonpoint-to-pointvideo calls exist. See,~ [D.E. 184] 25-27; [D.E. 195] 83-85, 96-97 (Ray testimony). In support, Heyer notes that the BOP could treat videophone calls like telephone calls and permit him reasonable access to such calls absent Heyer's abuse or misuse of the device, or that the BOP could monitor Heyer's calls in a manner similar to howitwillmonitorHeyer's use ofthe VRS system. See [D.E. 184] 25-27; [D.E.
15 Case 5:11-ct-03118-D Document 205 Filed 02/12/19 Page 15 of 17
\__,,

195] 96-97 (Ray testimony).

Heyer' s proposed alternatives do not impose merely de mjnjmjs costs. See [D.E. 195] 69-70

(Cokely testimony); [D.E.195] 167 (Craig testimony); [D.E.195] 97-98, 105-10 (Ray testimony);

[D.E. 196] 12-14 (Craig testimony); [D.E. 196] 31-41 (Mansnkbanj testimony); [D.E. 196] 59-63

'

'

(Grover testimony); Def. Tr. Ex. 19. In Matherly, the Fourth Ckcuitheld that the BOP could censor

civil detamees' mail, reasoning that the proposed alternative of''making a BOP official available to

supervise each civil detamee when he opens bis mail would be burdensome." Matherly, 859 F.3d I
at 283. Real-time monitoring ofconversations in ASL would impose substantially more costs than ·

~bserving detamees open thek mail. See [D.E. ,196] 12-14 (Craig testimony); [D.E. 196] 37-39 (Mansnkhanj testimony). Moreover, the courthas discussedthe real security and other concernsthat

will arise ifthe BOP permits Heyer to make point-to-point videophone calls. Furthermore, Heyer

has not shownthat the BOP's policy is an "exaggerated response" to the BOP's legitimate concerns. )
See Thornburgh, 490 U.S. at418; Turner, 482 U.S. at 90; Sebolt, 2018 WL 4232075, at *2-3. Heyer

has not shown any alternative that imposes a de mjnjmjs cost on the BOP's legitimate, nonpunitive
interests. See Matherly. 859 F.3d at 283 (noting that "common sense says that'makipg ~ BOP
'··
official available to supervise each civil detamee while he opens bis mail would be burdensome");

Sebolt, 2018 WL 4232075, at *2; ~ ' 833 F.3d at 895; Minton v. Childers, 113 F. Supp. 3d 796, • 803 (D. Md. 2015). Thus, the fourth factor weighs against Heyer.
m.

Afterweighingthe Turnerfactors as modifiedinMatherly. the courtFINDS thatHeyerfailed

to prove that the BOP's failure to install and provide Heyer the requested videophone equipment

violates the Fkst Amendment Thus, the court enters judgment in favor ofdefendants and against Heyer. The clerk shall close the case.

16

·\'

Case 5:11-ct-03118-D Document 205 Filed 02/12/19 Page 16 of 17

SO ORDERED. This tl.. day ofFebruary 2019. J ~ S C. DEVER ill United States District Judge
17 Case 5:11-ct-03118-D Document 205 Filed 02/12/19 Page 17 of 17

 
 UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

__________________________________________

)

THOMAS HEYER,

)

Plaintiff,

)

)

v.

)

Civil Action No. 5:11-CT-3118-D

)

UNITED STATES BUREAU OF PRISONS et al., )

)

Defendants.

)

__________________________________________)

MOTION TO ALTER OR AMEND THE JUDGMENT, OR IN THE ALTERNATIVE, TO AMEND THE COURT’S FINDINGS

Plaintiff Thomas Heyer moves the Court, pursuant to Rules 59(e) and 52(b), and all other

relevant rules of the Federal Rules of Civil Procedure, to alter or amend the judgment entered on

February 12, 2019, or in the alternative, to amend the Court’s findings. See Dkt. 205, 206. In

support of this Motion, Defendant files a supporting memorandum contemporaneously herewith.

Case 5:11-ct-03118-D Document 207 Filed 03/12/19 Page 1 of 3

Dated: March 12, 2019

Respectfully Submitted,

/s/ Neil A. Riemann Neil A. Riemann (NC Bar No. 19258) PENRY RIEMANN PLLC 1330 Saint Mary’s Street, Suite 260 Raleigh, NC 27605 T: (919) 833-9449 F: (919) 516-0880 neil.riemann@penryriemann.com
Philip Fornaci Washington Lawyers’ Committee for Civil Rights and Urban Affairs 11 Dupont Circle, N.W. Suite 400 Washington, D.C. 20036 T: 202-319-1000 F: 202-319-1010 phil_fornaci@washlaw.org

/s/ Ian S. Hoffman_________ Ian S. Hoffman Tara L. Williamson Snayha M. Nath ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Ave, N.W. Washington, DC 20001 T: 202-942-5000 F: 202-942-5999 ian.hoffman@apks.com tara.williamson@apks.com snayha.nath@apks.com
Carolyn A. Pearce ARNOLD & PORTER KAYE SCHOLER LLP 10th Floor Three Embarcadero Center San Francisco, CA 94111 T: 415-471-3100 F: 415-471-3400 carolyn.pearce@apks.com
Counsel for Plaintiff Thomas Heyer

Case 5:11-ct-03118-D Document 207 Filed 03/12/19 Page 2 of 3

CERTIFICATE OF SERVICE I hereby certify that today, March 12, 2019, I electronically filed the foregoing using the Court’s CM/ECF system, which caused true and correct copy of the foregoing to be served on all counsel of record.

Date: March 12, 2019

/s/ Ian S. Hoffman Counsel for Plaintiff Thomas Heyer

Case 5:11-ct-03118-D Document 207 Filed 03/12/19 Page 3 of 3

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTII CAROLINA
WESTERN DMSION No. 5:11-CT-3118-D

TIIOMAS HEYE~

)

)

Plaintiff, )

)

v.

)

)

UNITED STATES BUREAU OF

)

PRISONS, et al.,

)

)

Defendants. )

ORDER

Thomas Heyer ("Heyer'' or "plaintiff'') is a sexually dangerous person in the custody ofthe BureauofPrisons("BOP")pursuantto 18U.S.C. § 4248. SeeUnitedStatesv.Heyer, 740F.3d284, 291-94 (4th Cir. 2014). Heyer is deafand filed th.is action concerning his conditions ofconfinement at the Federal Correctional Institution in Butner, North Carolina (''FCI-Butner''). See [D.E. 1, 24]. On November 6 and 7, 2017, the court held a bench trial concerning Heyer's claim th.at the defendants are violating his First Amendment rights by failing to provide him with videophone equipment to allow him to make point-to-point videophone calls [D.E. 190, 193]. On February 12, 2019, the court entered judgment in favor ofdefendants and against Heyer [D.E. 205].
On March 12, 2019, Heyer moved to alter or amend the court's judgment or, in the alternative, to amend the court's findings [D.R 207] and filed a memorandum in support [D.E. 208]. On April 2, 2019, defendants responded in opposition [D.E. 209]. On April 16, 2019, Heyer replied [D.E. 210~.
Rule 59(e) of the Federal Rules of Civil Procedure permits a court to alter or amend a judgment See Fed. R. Civ. P. 59(e). "[R]econsideration of a judgment after its entry is an

Case 5:11-ct-03118-D Document 211 Filed 06/21/19 Page 1 of 4

extraordinary remedy which should be used sparingly." Pac. Ins. Co. v. Am. Nat'lFirelns. Co., 148 F.3d 396, 403 (4th Cir. 1998) (quotation omitted); see Mayfield v. Nat'l Ass'n for Stock Car Auto Racing. Inc., 674 F.3d 369, 378 (4th Cir. 2012). Whether to alter or amend a judgment under Rule S9(e) rests within the sound discretion ofthe district court. See, e.g., Dennis v. Columbia Colleton Med. Ctr.. Inc., 290 F.3d 639, 6S3 (4th Cir. 2002); Hughes v. Bedsole, 48 F.3d 1376, 1382 (4th Cir. 199S).
"Rule S9(e) motions can be successful in only three situations: (1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice." United States ex rel. Carter v. Halliburton Co., 866 F.3d 199, 210 (4th Cir. 2017) (quotation omitted); see Mayfield, 674 F.3d at 378; Robinson v. Wix Filtration Corp., S99 F.3d 403, 420 (4th Cir. 2010); Zinkand v. Brown, 478 F.3d 634, 637 (4th Cir. 2007); Ingle ex rel. Estate of Ingle v. Yelton, 439 F.3d 191, 197 (4th Cir. 2006); Bogartv. Chapell, 396F.3dS48, SSS (4th Cir. 200S); Hill v. Braxton, 277F.3d 701, 708 (4th Cir. 2002); Pac. Ins. Co., 148 F.3d at 403. When a party seeks relief based on newly discovered evidence, the party must show:
(1) the evidence is newly discovered since the judgment was entered; (2) due diligence on the part of the movant to discover the new evidence has been exercised; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material; and (S) the evidence is such that is likely to produce a new outcome ifthe case were retried, or is such that would require the judgment to be amended. Boiyan v. United States, 884 F.2d 767, 771 (4th Cir. 1989) (quotation omitted); see Qµillin v. C.B. Fleet Holding Co., 328 F. App'x 19S, 203 (4th Cir. 2009) (per curiam) (unpublished). Heyer argues that, because ofnew evidence not available at trial, the court should amend its judgment to provide him with a videophone with which he can make point-to-point videophone calls. Heyer first presents evidence concerning John TC Yeh ("Yeh"), a "deafmale prisoner at FCI
2
Case 5:11-ct-03118-D Document 211 Filed 06/21/19 Page 2 of 4

Schuylkill in Pennsylvania." [D.E. 208] 2. Heyer notes that, in February 2018, the United States Department ofJustice ("DOJ'') concluded, in an administrative proceeding, that Section 504 ofthe Rehabilitation Act required the BOP to provide Yeh access to a videophone. See id. at 2-3; [D.E. 208-1]. Heyer next presents evidence that the BOP has contracted with lntegrio Technologies to install Video Relay Service (''VRS") systems in BOP facilities. See [D.E. 208] 3-4; [D.E. 208-3]; [D.E. 208-5]; [D.E. 208-6]. Heyer argues thatthe VRS systems could be used to make point-to-point videophone calls. See [D.E. 208] 4.
The evidencethatHeyerpresents does notwarrantthe extraordinaryremedy ofreconsidering the court's judgment. Heyer has not presented new evidence, and Heyer did not exercise due diligence. Additionally, Heyer's evidence merely impeaches the BOP's witnesses' positions concerning security risks. Moreover, Heyer's evidence concerning Yeh and the BOP videophone contracts is not material to whether the First Amendment mandates that the BOP provide Heyer with the requested videophone equipment. Furthermore, Yeh' s situation is factually distinguishable from Heyer's situation. For example, the risk that Yeh poses based on his conviction for conspiracy to commit mail fraud based on fraudulent billing is materially different than the risk that Heyer poses based on his status as a sexually dangerous person who is housed with other sexually dangerous offenders. Accordingly, the court denies Heyer's motion to alter or amend the court's judgment.
As for Heyer's motion under Rule 59(a)(2), "a motion for rehearing should be based upon manifest error oflaw or mistake offact, and ajudgment should not be set aside except for substantial reasons." UnitedStatesv. Timms, 537F.App'x265,267 (4th Cir. 2013) (percuriam) (unpublished) (quotations omitted); see United States v. Carolina E. Chem. Co., 639 F. Supp. 1420, 1423-24 (D.S.C. 1986); United States v. Tum.er, No. 5:07-HC-2167-D, 2012 WL 965985, at *1 (E.D.N.C. Mar. 21, 2012) (unpublished). Heyer has not shown any substantial reason to open the judgment.
3 Case 5:11-ct-03118-D Document 211 Filed 06/21/19 Page 3 of 4

Accordingly, the court denies Heyer's motion under Rule S9(a)(2). In sum, the court DENIES Heyer's motion [D.E. 207].
SO ORDERED. This & day ofJune 2019.
4 Case 5:11-ct-03118-D Document 211 Filed 06/21/19 Page 4 of 4

 
 EXHIBIT A
Case 5:11-ct-03118-D Document 181-1 Filed 11/02/17 Page 1 of 17

PARTIAL SETTLEMENT AGREEMENT This Partial Settlement Agreement (the “Agreement”) is entered into as of November 2, 2017 and memorializes the agreement by and among Thomas Heyer (“Heyer”) and the U.S. Bureau of Prisons (the “BOP”). Heyer and the BOP are collectively referred to herein as the “Parties.”
DEFINITIONS A. The “Case” means Heyer v. U.S. Bureau of Prisons, et al., No. 5:11-ct-3118-D (E.D.N.C.) and all appeals arising therefrom, including Heyer v. U.S Bureau of Prisons, et al., No. 15-6826 (4th Cir.). B. “BOP” means the U.S. Bureau of Prisons. C. “BOP employees,” “BOP staff,” “BOP personnel” include all employees, agents, and other staff of the BOP, whether located at Butner or elsewhere, including but not limited to wardens, unit staff, counselors, correctional officers, SIS and other investigative staff, lieutenants, medical professionals, mental health professionals, psychologists, and CTP staff. D. “Butner” means FCI Butner, the facility in which Heyer is currently housed. E. “CTP” means the Commitment and Treatment Program for inmates certified and committed as sexually dangerous persons pursuant to 18 U.S.C. § 4248. F. “Defendants” means the Defendants named in the Case, in particular: the BOP, Eric H. Holder, Jr. (in his official capacity as Attorney General of the United States), Charles E. Samuels, Jr. (in his official capacity as Acting Direct of the BOP), Ike Eichenlaub (in his official capacity as Regional Director of the BOP, Mid-Atlantic Region), Sara M. Revell (in her official capacity as Warden of FCC Butner), and Tracy W. Johns (in his official capacity as Warden of FCI Butner Medium).
-1Case 5:11-ct-03118-D Document 181-1 Filed 11/02/17 Page 2 of 17

G. The “Effective Date” means the date the Court in the Case enters the Agreed Order attached as Exhibit A hereto.
H. The “Execution Date” means the date upon which the last Party signs the Agreement.
I. “Heyer” means Thomas Heyer, Register No. 30155-074. J. “Qualified ASL Interpreter” means a person who is able to interpret effectively, accurately, and impartially, both receptively and expressively, with the deaf individual using any necessary specialized vocabulary. For sign language interpreters, a Qualified Interpreter is one who holds, or will hold within three (3) months of first interpreting for Heyer, one or more of the following current, valid certifications:  Registry of Interpreters for the Deaf Certification as a CI/CT, CSC,
MCSC, OTC, CDI, or RSC;  National Association of the Deaf (NAD) Certification Level 3, 4, or 5; or  NAD/RID National Interpreter Certification NIC, NIC Advanced, or NIC
Master. The Parties agree that future certifications that are the equivalent of these certifications will be considered valid minimum certification, so long as those certifications are kept current. The Parties further agree that under no circumstance can any inmate be considered a Qualified ASL Interpreter.
K. “Video Remote Interpreting” or “VRI” means video interpreting accomplished by use of video conference technology over high-speed internet lines.
L. “Video Relay Service” or “VRS” means a telephone with a camera and screen for communications between a deaf person and a non-deaf person, using visual translations provided by an offsite interpreter through a VRS interpreting service.
-2Case 5:11-ct-03118-D Document 181-1 Filed 11/02/17 Page 3 of 17

M. “TTY” means a telecommunications device for the deaf that permits individuals to type written messages to each other over a telephone line.
RECITALS WHEREAS, Heyer is a civil detainee in the custody of the BOP who is deaf and has no ability hear or understand speech; WHEREAS, on June 20, 2011, Heyer initiated the Case in the U.S. District Court for the Eastern District of North Carolina by filing a complaint asserting various claims against the BOP and other government defendants; including violations of the U.S. Constitution, the Rehabilitation Act, and the Religious Freedom Restoration Act (“RFRA”), based upon the BOP’s alleged failures to provide appropriate Qualified ASL Interpreters, technology, equipment, and other services to accommodate Heyer’s disability; WHEREAS, the Rehabilitation Act claim (Count I) was dismissed by the district court without prejudice, Heyer has since filed the claim in an administrative forum; WHEREAS, there is a pending administrative action (“Administrative Action”) brought by Heyer with respect to certain of his claims against the BOP regarding violations of the Rehabilitation Act of 1973, Pub. L. 930112, codified at 29 U.S.C. §§ 701-797b, and regulations promulgated thereunder (the “Rehabilitation Act”), WHEREAS, the BOP has denied and continues to deny liability for all violations alleged by Heyer, both in the Case and the Administrative Action; WHEREAS, the BOP contends that it currently provides Heyer with many of the accommodations addressed in this Agreement, and Plaintiff disputes that contention; WHEREAS, the BOP has indicated its willingness to provide these and other accommodations requested by Heyer going forward;
-3Case 5:11-ct-03118-D Document 181-1 Filed 11/02/17 Page 4 of 17

WHEREAS, the Parties desire, through this Agreement, to resolve and settle certain claims at issue in the Case and the Administrative Action without the costs and burdens associated with further litigation with respect to such claims and defenses raised in the Case and Administrative Action;
WHEREAS, Heyer desires to preserve his ability to continue to pursue (a) all claims in the Case and Administrative Action pertaining to Heyer’s request for access to a videophone that enables him to communicate with persons outside of Butner using VRS and point-to-point videophone services, and (b) all claims in the Administrative Action pertaining to Heyer’s request for non-emergency announcements;
WHEREAS, the Parties have engaged in arm’s length negotiations through counsel concerning this Agreement;
NOW THEREFORE, the Parties agree, through their respective authorized representatives, to be bound by the terms and conditions set forth below.
TERMS AND CONDITIONS NOW, THEREFORE, in consideration of the mutual promises and obligations in this Agreement, and with full authority to enter into this Agreement, and intending to be bound thereby, the Parties agree as follows: 1. Interpreters. The BOP shall provide Heyer with Qualified ASL Interpreters, either through in-person interpreting or Video Remote Interpreting (“VRI”) in all of the following circumstances: (a) All medical encounters between Heyer and BOP (or other) health care professionals, including but not limited to all scheduled medical appointments in the Maryland Unit, the Health Services Unit, the Sick Call area, and FMC Butner. The BOP also shall provide Heyer with Qualified ASL Interpreters for any unscheduled encounters during Sick Call and any other walk-in hours in the Health Services Unit. For medical emergencies or urgent medical encounters, BOP shall take all reasonable efforts to
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provide a Qualified ASL Interpreter as soon as practicable. The BOP will ensure that all appropriate medical providers are adequately trained to use VRI for unscheduled, emergency, and urgent medical encounters. For medical encounters outside of Butner (e.g., at Duke Medical Center, outside audiology offices, or other outside specialists’ offices), the BOP will either provide a Qualified ASL Interpreter or take appropriate steps to ensure that the medical provider’s office has arranged for an interpreter to be provided. If for any reason an interpreter is not provided for Heyer at any scheduled medical encounter (e.g., due to interpreter cancellation, or an outside medical office failing to provide an interpreter), the BOP shall promptly reschedule another encounter between Heyer and the appropriate medical professional with a Qualified ASL Interpreter.
(b) All disciplinary investigations and related proceedings, including but not limited to all investigations conducted by SIS, all Unit Discipline Committee (“UDC”) related hearings and proceedings, and all Discipline Hearing Officer (“DHO”) related hearings and proceedings. BOP will also provide Heyer with a Qualified ASL Interpreter for any formal or informal interviews with BOP staff where the purpose of such interviews is to investigate suspected misconduct by Heyer or others.
(c) When the BOP places Heyer in the Special Housing Unit (also known as the “SHU” or the “Annex”) for any purpose, in order to give Heyer an opportunity to communicate with BOP staff about that placement, unless BOP staff make a reasonable and good faith determination that Heyer’s safety or the safety of others would be threatened by complying with this requirement. In the event BOP staff makes such a determination, BOP staff must then communicate with Heyer using a Qualified ASL Interpreter as soon as practicable after the threat has subsided and in no event later than 24 hours after his placement in the SHU or the Annex, in order to give Heyer an opportunity to communicate with BOP staff about that placement. Thereafter, the BOP will provide Heyer a Qualified ASL Interpreter for any interactions between Heyer and BOP staff concerning the reasons for his placement in the SHU and any ongoing investigative interviews related thereto. The BOP also will provide Heyer a Qualified ASL Interpreter for interactions in the SHU or the Annex with medical or mental health professionals involving interactions concerning Heyer’s mental state and whether he presents a danger to himself or others.
(d) Scheduled staff, contractor, and inmate-lead educational programs (including GED programs) and all vocational programs, provided that Heyer provides staff with notice forty-eight (48) hours in advance of his intended attendance;
(e) Scheduled Alcoholics Anonymous (“AA”) and Narcotics Anonymous (“NA”) meetings, provided that Heyer provides staff with notice forty-eight (48) hours in advance of his intended attendance;
(f) Scheduled religious programs and services, including but not limited to all weekly Catholic services and holiday services, provided that Heyer provides staff with notice forty-eight (48) hours in advance of his intended attendance;
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(h) All scheduled “Town Hall” meetings led by BOP staff. For unscheduled “Town Hall” meetings, BOP staff will make reasonable and good faith efforts to utilize a either a live Qualified ASL Interpreter or VRI. Otherwise, Heyer will be informed of any information relayed during the meeting as soon as practicable thereafter by way of either a live Qualified ASL Interpreter or VRI; and (g) All aspects of the CTP, including but not limited to one-on-one meetings between Heyer and CTP staff (such as BOP psychologists), group meetings, house meetings, community meetings, therapeutic programs, and all “contextual” or “ancillary” treatment programs that require communication (i.e., with an instructor or facilitator). 2. Interpreter Evaluations. In the event Heyer believes in good faith that any ASL interpreter provided to him by the BOP, on a repeat basis, is not interpreting effectively, Heyer shall inform the BOP of that belief in writing through the BOP’s Administrative Remedy Program. In the event Heyer so informs the BOP, the BOP shall evaluate the qualifications of such interpreter, with the live ASL Interpreter contractor, in order to determine whether to continue utilizing that interpreter for Heyer. 3. Video Remote Interpreting. The BOP shall, within ninety (90) calendar days of the Effective Date, install any additional VRI stations that may be needed in order to meet the interpreting obligations provided for in this Agreement (e.g., in the SHU or the Annex). For all VRI stations, the BOP shall ensure that those stations are equipped with high speed internet connections adequate to support VRI. 4. Video Relay Service. The BOP shall install at least one VRS station in Butner that shall provide Heyer access to VRS that will permit Heyer to communicate with persons outside of Butner utilizing video relay interpreters. BOP shall ensure that the VRS station is equipped with a high-speed internet connection adequate to support VRS. The BOP shall provide Heyer access to VRS in a manner that is equivalent or at least substantially similar to non-deaf inmates’ access to the telephone, including but not limited to meaningful VRS access on evenings and weekends. The BOP also shall provide Heyer access to VRS while Heyer is
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placed in the SHU or the Annex in a manner that is equivalent or at least substantially similar to non-deaf inmates’ access to the telephone while placed in the SHU or the Annex.
5. TTY. In the event Heyer needs to use a TTY device—for example and without limitation, if the VRS becomes temporarily unavailable due to technical problems—the BOP shall provide Heyer access to a TTY device, upon his written request, as soon as reasonably practicable at times when non-deaf persons are eligible to use the telephone. For TTY calls requested to be placed between 7:30 a.m. and 4:00 p.m. on weekdays, BOP staff shall allow access to the TTY on the same day of the request absent exigent circumstances. Nothing in this section shall alleviate in any way BOP’s obligation to provide Heyer access to VRS as provided in Section 4.
6. Emergency Flashing Lights. The BOP shall provide emergency flashing lights, connected to Butner’s existing emergency notification system, in at least the following location, (a) inside Heyer’s room and in every room in which he may be housed at Butner or any other BOP facility, excluding the Special Housing Unit or the Annex; (b) inside the bathroom and shower facility Heyer primarily uses in Butner or any other BOP facility; and (c) inside the laundry room Heyer primarily uses in Butner or any other BOP facility.
7. Vibrating Emergency Alarms. The BOP will provide Heyer a bed-shaking device, connected to Butner’s existing emergency notification system, that can physically wake Heyer in the event of an emergency. The BOP will provide such a device in every bed in which Heyer sleeps in Butner and in any other BOP facility, excluding the Special Housing Unit or the Annex.
8. Watch Battery and Vibrating Clock. The BOP shall allow Heyer to purchase batteries for his vibrating watch as needed to keep that watch functioning. The BOP also shall
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allow Heyer to purchase an approved bedside clock equipped with a pillow- or bed-shaking alarm.
9. Closed Captioning. The BOP shall provide Heyer with closed captioning for all movies, television, videos or other visual programs viewable by Heyer, including but not limited all videos shown as part of the CTP Program, unless closed captioning is not available for such videos or other visual programs. To the extent closed captioning is not available for videos or visual programs shown as part of the CTP Program, or any educational or vocational program, the BOP agrees to provide Qualified ASL Interpreters while those videos or visual programs are shown.
10. Attorneys’ Fees and Expenses. Within sixty (60) calendar days of the date the Court enters an order providing for payment of attorney’s fees and costs, the BOP shall pay $100,000 to Heyer’s counsel, Arnold & Porter Kaye Scholer, LLP, which reflects a portion of Heyer’s attorneys’ fees and out-of-pocket expenses incurred to date in connection with the Released Claims, as defined in Section 11. In the event Heyer prevails, in whole or in part, after trial or in any subsequent appeals of any of the Preserved Claims in the Case, as defined in Section 12, Heyer shall seek from the Court only those attorney’s fees and costs that can be reasonably attributed to having been incurred in connection with such Preserved Claims (incurred before and after the Effective Date), not to exceed $75,000 for such attorney’s fees and costs. Further, in the event Heyer prevails, in whole or in part, on any of the Preserved Claims in the Administrative Action or in any subsequent appeals, Heyer shall seek from the appropriate Administrative Tribunal or court only those attorney’s fees and costs that can be reasonably attributed to having been incurred in connection with such Preserved Claims (incurred before and after the Effective Date), not to exceed $75,000 for such attorney’s fees and costs. The BOP
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expressly preserves and does not waive any argument as to Heyer’s entitlement to fees or costs in the Case or the Administrative Action.
11. Release. With the exception of (a) Heyer’s right to assert the Preserved Claims as provided in Section 12; (b) Heyer’s right to enforce the terms of this Agreement as provided in Section 15, and (c) Heyer’s ability to assert claims based on future conduct by the BOP as provided in Section 13, Heyer hereby executes a full and complete release, on his behalf and on behalf of his representatives, assignees, heirs, successors, executors, and beneficiaries, and hereby forever discharges all Defendants, their agencies, employees, agents, officials, and their representatives, from any and all claims and causes of action, known and unknown, asserted and unasserted, direct and indirect, and of any kind, nature or description whatsoever, which Heyer had on or before the Execution Date of this Agreement arising out of the facts set forth in the claims he filed in the Case and the Administrative Action (the “Released Claims”). The Parties agree that the Released Claims include without limitation:
(a) Count II in the Case (Violation of the U.S. Constitution, Fifth Amendment, Deprivation of Liberty in Civil Commitment); (b) Count IV in the Case (Violation of the U.S. Constitution, Fifth Amendment, Informed Consent to Medical Treatment); (c) Count VI in the Case (Violation of the U.S. Constitution, Fifth Amendment, Right to Adequate Medical Treatment ); (d) Count VII in the Case (Violation of the U.S. Constitution, Fifth Amendment, Right to Reasonably Safe Environment); (e) Count IX in the Case (Violation of the Religious Freedom Restoration Act); and (f) Count X in the Case (Violation of the U.S. Constitution, First Amendment, Right to Free Exercise of Religion); (g) Counts I, III, and V in the Case, which were dismissed by the district court without prejudice and were not raised on appeal, and thus are no longer at issue in the Case.
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12. Preserved Claims. The Parties agree that the following claims are expressly
preserved and not released by Heyer:
(a) Count VIII (Violation of the U.S. Constitution, First Amendment) in the Case as it pertains to Heyer’s demand for access to a videophone that will allow him to communicate directly (point-to-point) with persons outside of Butner using ASL;
(b) Heyer’s Rehabilitation Act claim pending in the Administrative Action (which stemmed from Count I in the Case, which was dismissed without prejudice) as it pertains to Heyer’s demand for access to a videophone that will allow him to communicate directly (point-to-point) with persons outside of Butner using ASL, and any claims arising from or related to the final decision in the Administrative Action, including any other claims or theories (other than based on the Rehabilitation Act) that seek the same relief;
(c) Heyer’s Rehabilitation Act claim pending in the Administrative Action (which stemmed from Count I in the Case, which was dismissed without prejudice) as it pertains to Heyer’s demand for visual, real time notifications of non-emergency events or announcements, e.g., through electronic message boards and personal vibrating pagers or similar devices, and any claims arising from or related to the final decision in the Administrative Action, including any other claims or theories (other than based on the Rehabilitation Act) that seek the same relief;
(d) Heyer’s Rehabilitation Act claim pending in the Administrative Action (which stemmed from Count I in this Case, which was dismissed without prejudice) as it pertains to Heyer’s demand for Qualified ASL Interpreters to be provided to assist with self-study GED programs and materials, and any claims arising from or related to the final decision in the Administrative Action, including any other claims or theories (other than based on the Rehabilitation Act) that seek the same relief; and
(e) All claims that may be based on the BOP’s placement of Heyer in the SHU or in the Annex in or around February 2017 and August 2017 and the circumstances surrounding such placement.
13. Future Conduct Claims. The Parties agree that Heyer shall preserve and not
release any claims based on acts or omissions that occur after the Effective Date of this
Agreement (“Future Conduct Claims”). To the extent Heyer asserts any Future Conduct Claims
that relate to the accommodations the BOP agrees to provide in this Agreement, such claims
shall be subject to the informal resolution procedures set forth in Section 16. Heyer agrees that
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any Future Conduct Claim shall not be based upon or supported by any acts or omissions which allegedly occurred prior to the Effective Date of this Agreement.
14. Dismissal. Within three (3) business days after the Execution Date, the Parties shall file this Partial Settlement Agreement and an Agreed Order dismissing with prejudice the Released Claims that remain in the Case. The Agreed Order shall provide that (a) the Released claims are dismissed with prejudice, (b) the Agreement is incorporated into the order dismissing the Released Claims, and (c) the Court retains jurisdiction to enforce the order. The form of the Agreed Order that shall be filed with the Court is attached hereto as Exhibit A. In the event the Court does not enter the Agreed Order, the Parties shall have the right within three (3) business days, in their sole discretion, to declare this entire Agreement null and void. Further, within three (3) business days after the Court enters the Agreed Order, Heyer shall inform the BOP’s EEO Officer and any other appropriate person(s) in connection with the Administrative Action of this Agreement and notify the BOP’s EEO Officer that Heyer is withdrawing his administrative, Rehabilitation Act complaint for all issues except for the Preserved Claims asserted in the Administrative Action.
15. Governing Law and Forum Selection. This Agreement shall be governed by and construed in accordance with the laws of the United States. Any action to enforce this Agreement, and any and all disputes of any kind whatsoever relating directly or indirectly to or in any way in connection with this Agreement, shall hereafter be heard exclusively in the United States District Court for the Eastern District of North Carolina, and shall be brought by motion filed in the Case (No. 5:10-ct-3118-D). If any party brings an action to enforce this Agreement, following the informal resolution period, the prevailing party shall be entitled its reasonable attorney’s fees and costs but only to the extent such a fee award is authorized by a waiver of
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sovereign immunity beyond the terms of this Agreement. In the event it is determined that no such waiver is found, the prevailing party may nevertheless request that fees and costs be provided, and the non-prevailing party reserves all rights to oppose that request.
16. Informal Resolution Period. Prior to bringing any Future Conduct Claims against the BOP, or any proceeding pursuant to Section 15 (“Governing Law and Forum Selection”), Heyer shall provide written notice to BOP through the established Administrative Remedy Program concerning any Future Conduct Claim or any alleged breach or failure to comply with the terms of this Agreement. It is understood that Heyer will submit an informal grievance (BP8) and a formal appeal to the Warden (BP-9) if necessary, and this will constitute exhaustion of the Administrative Remedy Program for purposes of this Section. Heyer’s counsel may assist him in preparing the administrative remedy (BP-8) and an appeal (BP-9), and may send a copies of each to FCC Butner legal counsel. If, after completion of the administrative remedy process, or after forty-five (45) calendar days following written notice of the BP-8 from Heyer’s counsel (whichever is sooner) (the “cure period”), the Parties have not resolved their dispute, the Parties agree to jointly request a settlement conference with a U.S. Magistrate Judge assigned to the Eastern District of North Carolina, Western Division, within forty-five (45) calendar days after the expiration of the “cure period.” No Party shall bring any Future Conduct Claim, or enforcement proceeding pursuant to Section 15 prior to jointly requesting a settlement conference as set forth herein and, if set by the Magistrate Judge, attending such settlement conference. In the event Heyer becomes a sentenced inmate, he will be required to fully exhaust his administrative remedies in accordance with 28 C.F.R. § 542 et seq. during that period of time.
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17. Confidentiality. No part of this Agreement is or will be considered confidential by the parties. This Agreement will be made available by request under the Freedom of Information Act.
18. Binding Effect. This Agreement shall be binding upon, and inure to the benefit of, all successors and assigns of the Parties hereto.
19. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and merges any and all prior discussions and negotiations between the Parties.
20. No Oral Modifications. This Agreement shall not be changed, altered, or modified in any manner except in a writing signed by all Parties to this Agreement.
21. Headings. The headings used in this Agreement are intended for the convenience of the reader only and shall not affect the meaning or interpretation of this Agreement.
22. No Party is the Drafter. Counsel to all Parties hereto have materially participated in the negotiation and drafting of this Agreement. Further, each Party and counsel for each Party has carefully reviewed this Agreement. None of the Parties hereto shall be considered to be the drafter of this Agreement or any provision hereof for the purpose of any statute, case law, or rule of interpretation or construction that would or might cause any provision to be construed against the drafter hereof.
23. Severability. Each provision of this Agreement shall be considered severable, and if for any reason any provision is deemed to be invalid or contrary to any existing or future law, ordinance, regulation, or covenant, all other provisions shall remain in effect.
24. Execution in Counterparts. This Agreement may be executed in counterparts. Facsimile or PDF-ed signatures shall be considered as valid signatures as of the date thereof.
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25. Voluntary Execution. Each of the Parties represents that this Agreement and its recitals are being voluntarily executed by such party without any duress or undue influence of any kind on that party by any person, firm, or entity.
26. Effective Date. This Agreement will become effective upon the Execution Date. 27. Term. This Agreement shall remain in effect from the Effective Date through the remainder of Heyer’s civil commitment with the BOP. If Heyer leaves the BOP’s custody and later returns to the BOP’s custody, this Agreement shall remain in effect upon Heyer’s return and throughout the duration of any subsequent civil commitment.
[Signature Pages Follow]
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Case 5:11-ct-03118-D Document 181-1 Filed 11/02/17 Page 16 of 17

AGREED AND EXECUTED by the Parties hereto:
For: THOMA HEYER
Name: S ignature:
oatea: //-J-/7

For: tl.S. BUREAU OF PRISONS
ROBERT J. HICDON, JR. united stales Artorney
BY: /s/ G. Norman Acker, III
Assistant United States Anomey Chiel Civil Division 310 New Bem Avenue, Suite 800
Raleigh, NC 27601-1461
(919) 856-4315 Email : norman.acker@usdoj.gov NC Bar 12839
Attorney for United Stotes Bureau Of Prisons

S ignature: Dated:

l,/r--
.L t'l

- t5 Case 5:11-ct-03118-D Document 181-1 Filed 11/02/17 Page 17 of 17

 
 PUBLISHED UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-7027
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; JEFFREY A. ROSEN,
Defendant – Appellees. ----------------------------------------STUART GRASSIAN, M.D.; CRAIG HANEY, Ph.D., J.D.; TERRY A. KUPERS, M.D., M.S.P.; PABLO STEWART, M.D.; BRIE WILLIAMS, M.D., M.S.; NATIONAL ASSOCIATION OF THE DEAF,
Amici Supporting Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:11-ct-3118-D)

Argued: October 29, 2020

Decided: January 13, 2021

Before MOTZ, KEENAN, and FLOYD, Circuit Judges.

Reversed and remanded by published opinion. Judge Floyd wrote the opinion in which Judge Motz and Judge Keenan joined.

ARGUED: Andrew Tutt, ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C., for Appellant. Mallory Brooks Storus, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellees. ON BRIEF: Ian S. Hoffman, ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C., for Appellant. Robert J. Higdon, Jr., United States Attorney, Joshua B. Royster, Assistant United States Attorney, Michael D. Bredenberg, Special Assistant United States Attorney, Christina A. Kelley, Special Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellees. Daniel M. Greenfield, Roderick & Solange Macarthur Justice Center, NORTHWESTERN PRITZKER SCHOOL OF LAW, Chicago, Illinois, for Amici Professors and Practitioners of Psychiatry and Psychology. Marc Charmatz, Howard A. Rosenblum, Anna Bitencourt, NATIONAL ASSOCIATION OF THE DEAF, Silver Spring, Maryland, for Amicus National Association of the Deaf.

2

FLOYD, Circuit Judge: Plaintiff-Appellant Thomas Heyer appeals from a two-day bench trial in the Eastern
District of North Carolina. Heyer is a Deaf individual who communicates in American Sign Language (ASL). The issue at trial was whether Defendant-Appellee U.S. Bureau of Prisons (BOP) violated Heyer’s First Amendment rights by denying him access to pointto-point videophone calls.1 The district court entered judgment in favor of BOP. Because we conclude the district court clearly erred in reaching this decision, we reverse.
I. A. We begin with a summary of the facts and testimony contained in the full record on appeal, including relevant information on deafness, the Deaf Community, and ASL.2
1. Dr. Thomas Cokely—a sociolinguist and Heyer’s expert witness—provided expert testimony and two reports opining on deafness, its effect on literacy, and its consequences
1 Heyer also named BOP and U.S. Department of Justice (DOJ) officials as defendants. Because the substance of his claim does not turn on any distinction between BOP and the named officials, we only refer to BOP as the Appellee.
2 The National Center on Disability and Journalism recommends using the adjective “deaf” to describe the audiological condition of hearing loss. By contrast, “Deaf” is an adjective used to describe individuals who view themselves as members of the Deaf community. See Disability Language Style Guide, Nat’l Ctr. on Disability & Journalism, https://ncdj.org/style-guide/#D (last visited Jan. 12, 2021). While some individuals prefer to describe themselves as “hard of hearing,” see id., we use the term d/Deaf individuals.
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for incarcerated and confined persons. As Dr. Cokely explained, it is easy to approach deafness as a purely audiological condition, but that understanding is too narrow. Deafness is defined as the inability to “hear and understand speech,” and it is a uniquely social condition. J.A. 1022. Individuals who are deaf may therefore also view themselves as part of a larger “linguistic and cultural” community—the American Deaf Community. J.A. 1023. Those born deaf or who become deaf early in life face unique barriers to learning English and are more likely than late-deafened individuals to gravitate toward membership in the Deaf community.
According to Dr. Cokely, Deaf individuals “are fundamentally a visual people, with their own visual language, social organizations, history, and mores.” J.A. 1023. ASL forms a crucial link between members of this community, because it “is the only means of communication that enables effective, efficient and reliable communication.” J.A. 1024. ASL “defines [the Deaf community] as a linguistic minority,” J.A. 1023, and “provides a means of determining acceptance into [that] [c]ommunity.” J.A. 1025.
Dr. Cokely also provided expert opinions on misconceptions about ASL: ASL is not a visual representation of the English alphabet or English vocabulary. It is an entirely separate language with its own syntax and grammar that he described as “closer to Chinese than English.” J.A. 132. ASL users communicate in three dimensions and make use of hand shapes, movements, locations, and palm orientations paired with “non-manual behavior[s]”—for instance, wrinkling one’s nose—to “indicate grammatical functions.” J.A. 133–34. Unlike English, ASL has no generally accepted written form.
4

Dr. Cokely further explained that any competence Deaf individuals achieve in English usually extends only to written English. And Deaf individuals are not similarly situated to other foreign-language speakers when it comes to learning written English. Most Deaf individuals have “limited language exposure in early childhood” and “grow up in a linguistically impoverished and deprived environment,” making acquisition of English skills more difficult. J.A. 1027–28. As a result, most Deaf high-school graduates communicate in written English at the third-grade level. Dr. Cokely therefore opined that Deaf individuals often achieve, at best, “‘survival’ English” skills that enable them to engage with simple, written English in repetitive and predictable contexts they already understand. J.A. 1028. This level of literacy permits Deaf individuals to navigate their daily lives by reading, for instance, directions, street signs, and “other basic printed material.” J.A. 1028–29. However, Dr. Cokely asserted that when Deaf individuals write messages to others, those writings are often misunderstood.
2. Because deaf persons cannot make telephone calls, they require a substitute. Before the advent of videophones, deaf individuals used the teletypewriter (TTY)—essentially a keyboard connected to an analog phone line that permits users to type messages back and forth. Importantly, TTY requires users to have some fluency in written English.3 Deaf
3 Heyer’s communication technology expert also testified that few people still use these devices, and he expects TTY to become obsolete in the next three-to-four years. This expert also opined that the functionality of TTY is limited. For instance, communication
5

individuals today increasingly use videophones, which operate like a standard smartphone and have both a screen and camera permitting the use of ASL instead of English. Videophone users can make two types of calls: one between a deaf and non-deaf individual and a second between two deaf individuals. The first, Video Relay Service (VRS), permits a deaf individual to communicate with non-ASL speakers. The deaf participant calls an interpreter who in turn calls the hearing participant and then translates back and forth. The deaf and hearing participants are not directly connected.
VRS calls are not supported between two deaf participants. Therefore, deaf individuals make point-to-point video calls to communicate with each other. These calls— which essentially resemble a Skype call—allow the two participants to sign directly to each other. For deaf individuals, point-to-point calls are the closest analogue to a telephone call. As the National Association for the Deaf (“NAD”) explained in its amicus briefing: “[W]here telephones can convey important linguistic information such as emotion, tone, or inflection, which can affect meaning and message significantly, videophones [but not TTY] can also do so . . . .” Br. of Amicus Curiae NAD at 10.
3. Dr. Cokely also opined that Deaf individuals face unique risks associated with incarceration and detention because the inability to have typical interactions in one’s
on a TTY is not fluid because it does not allow participants to “talk simultaneously to one another” or to “interrupt one another.” J.A. 194.
6

primary language has been shown to reduce fluency. When isolated from other ASL speakers, Deaf prisoners lack other persons with whom they can “communicate freely and fluently [or] have a free and easy exchange of ideas.” See J.A. 1043. Dr. Cokely therefore believes that Deaf prisoners risk losing their own fluency in the language that serves as the all-important tie to their broader, cultural community. Nor does Dr. Cokely believe that conversations through an interpreter alleviate those harms because “the cognitive demands of the interpretation process” make those interactions different from and more stilted than “conversational interactions.” J.A. 156, 163. For Dr. Cokely, speaking to a translator “is not the same thing as having a conversation or discussion in [ASL].” J.A. 156.
As professors and practitioners of psychiatry and psychology explained in an amici curiae brief, a lack “of meaningful social interaction” is a “hallmark experience of most deaf and hearing-impaired prisoners, particularly those who are denied access to videophones.” Br. of Amici Curiae Professors at 6. The experience mimics the effects of traditional solitary confinement, which include long-lasting psychiatric and physical difficulties. These professors contend that access to videophone technology, which permits “social interaction and environmental stimulation” through conversations with other ASLspeakers can be essential in mitigating these harms. Id. Dr. Cokely opined that unless Heyer is allowed to make point-to-point calls, he is likely to experience social isolation and loss of language skills.
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B. 1. We next consider Heyer’s background. Heyer was born deaf and considers himself a “big part” of the Deaf community. J.A. 228. Heyer’s parents did not discover he was deaf until he was either three or four years old. Before he learned ASL, his primary method of communication involved his parents “gestur[ing] and act[ing] things out [and] shak[ing] their finger at [him], but there was no language.” J.A. 225. Heyer first learned ASL when he was five years old. At trial, Heyer described the experience as revelatory: “I lit up. It was—I was able to understand other people and I felt like a part of the group . . . .” J.A. 226. Prior to his incarceration, Heyer’s friends were also Deaf, and he “love[d] being around other deaf people . . . [b]ecause [he] can identify with them.” J.A. 228. He was able “to communicate really easily” with them and “[t]here[] [was] just a simple understanding of one another.” J.A. 228. Currently, Heyer is civilly committed as a sexually dangerous person in Federal Correctional Institution (FCI) Butner pursuant to the Adam Walsh Child Protection and Safety Act of 2006 (the “Adam Walsh Act”).4 Since 2008, Heyer has been housed in the Maryland Unit, which only houses Adam Walsh Act detainees. Prior to his civil
4 The Adam Walsh Act permits the indefinite civil detention of former federal prisoners who are proven by clear and convincing evidence to be “sexually dangerous.” 18 U.S.C. § 4248(a), (d)–(e). “[S]exually dangerous person[s]” include those “who ha[ve] engaged . . . in sexually violent conduct or child molestation” and also have “a serious mental illness, abnormality, or disorder” that causes “serious difficulty in refraining from” reoffending. Id. § 4247(a)(5)–(6).
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commitment, Heyer was incarcerated for violating the conditions of his supervised release on an earlier child pornography conviction.5
In prison and while civilly committed, Heyer’s access to the Deaf community has dwindled. Heyer testified that he had a total of twenty Deaf friends he would like to call across New Jersey, New York, Tennessee, and Washington, D.C. Heyer was only able to name two such friends,6 and it appears he has not contacted those two individuals since his incarceration and subsequent civil commitment. But if he had videophone access, Heyer testified that he could ask his “adopted mom” to retrieve his “school yearbook[s]” and “get information and network out through the deaf community.” J.A. 236. Heyer also testified that, once released, he wants to return to the Deaf community: “we use the same language. . . . [I]f I’m in the deaf world, I can communicate with people.” J.A. 237.
2. Adam Walsh Act detainees in the Maryland Unit—Heyer included—have a number of ways to communicate with friends and loved ones. Heyer can write letters to friends and family and visit them in-person. He also has access to the prison TRULINCS system, which allows detainees to send emails. The record reveals that Heyer has sent letters and
5 Heyer has previously been convicted of terrorist threats and kidnapping in an incident that involved the sexual assault of a ten-year-old boy. Heyer has also admitted to molesting more than forty children. J.A. 515.
6 Heyer also named his brother George, who is not deaf, as a person with whom he would like to make point-to-point calls.
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emails while detained in the Maryland Unit. He has also had visitors from Prisoner Visitation Services, but Heyer testified that they did not know ASL.
Heyer also has access to a TTY machine located in the Maryland Unit. Heyer makes TTY calls under the direct supervision of a BOP staff member who dials the call from a list of preapproved numbers, sits next to him as he makes that call, logs the call information, prints a call transcript, and locks the transcript in a safe. Cross-examination revealed that Heyer has used that device approximately sixty times.
Pursuant to a partial settlement in this case, BOP agreed to provide Heyer with access to VRS calls by installing a videophone in his unit and contracting with a provider of SecureVRS services. The SecureVRS system restricts calls to preapproved numbers and “allow[s] BOP staff to maintain call records[;] track, record, and monitor SecureVRS calls in real-time[;] and play them back.” J.A. 1647. Calls can also be interrupted to prevent prohibited conduct. If Heyer engages in any criminal activity using the SecureVRS system, those calls can be referred for prosecution. Heyer’s communication technology expert testified that this same system could be used for point-to-point calls. However, those calls are currently locally disabled at the Maryland Unit.
Other than in-person visitation and SecureVRS calls—which do not allow Heyer to call Deaf friends—Heyer’s remaining forms of communication depend on his ability to read and write English. Dr. Cokely testified that Heyer’s English skills are rated as “novice low” on the American Council on Teaching of Foreign Languages (ACTFL) scale,
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meaning that “he can barely handle some narration.” J.A. 140.7 Therefore, Heyer’s English is effective only “in highly contextualized[,] routinized situations [in] which you have content or context to help you overcome grammatical irregularities.” J.A. 151. Dr. Cokely also testified that a separate expert who previously evaluated Heyer similarly concluded that his reading and writing skills mimic those of a seven-year-old.
Heyer testified at trial about his struggles to communicate in written English: it can take him one-to-two hours to write one page, and he does not feel able to express his full thoughts. He stated that he has trouble reading English and struggles with vocabulary in particular. He often requires the help of another inmate—who he has taught some sign language—when writing letters and emails. He sometimes writes “short notes, basic ideas” to others at FCI Butner, but testified that they are only sometimes understood. J.A. 230. Heyer’s correctional counselor testified that he is capable of generally discerning Heyer’s short, written requests for help. However, he also testified that Heyer’s writing is often confusing and that “the sentences don’t add up.” J.A. 364.
Heyer explained that TRULINCS emails are a particular source of stress because he often makes “mistakes trying to get [his] message out.” J.A. 232. Heyer sometimes seeks assistance from another inmate in advance to write out the text of an email, which he then
7 Dr. Cokely testified that the ACTFL scale rates language skills at the following levels: “novice, intermediate, advanced, superior, [and] distinguished.” J.A. 138. Each level is further refined as “low, mid, [or] high.” Id. Thus, Dr. Cokely assessed Heyer’s English skills as “novice low” and his ASL skills as “intermediate low to mid.” J.A. 138, 140, 151. Dr. Cokely opined that “the vast majority of native speakers of a language operate at the intermediate level.” J.A. 138.
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types out when he has access to TRULINCS. Nor is TTY any better. Heyer testified that he must “hunt and peck” to express himself and does not always understand the responses he receives. J.A. 234–35.
3. BOP does not allow Heyer to make point-to-point calls with other Deaf individuals. At trial, BOP’s Chief of the Office of Security Technology, Todd Craig, testified that BOP would need to secure a waiver of DOJ’s IT security protocols in order to provide point-topoint calls. BOP has secured waivers in the past, including to install a videophone and provide SecureVRS services to Heyer. Craig also explained that BOP’s decision to deny the accommodation was based on a fear of security threats posed by “video[] coded language” and the risk that either Heyer or some other detainee through Heyer could send coded instructions to the outside world, including plans for escape or smuggling contraband into the Maryland Unit. J.A. 276. He also hypothesized that Heyer’s access to point-topoint calls might give him leverage to exploit other detainees for favors or give other detainees a reason to exploit Heyer for access. J.A. 277–78. Craig further testified that Heyer’s unique designation as a sexually dangerous person presents public safety concerns, namely that he could use point-to-point calls to engage in acts of child exploitation or view child pornography. For instance, Heyer could expose himself to a child and that “visual depiction is immediate and [when] it’s done, . . . whatever the information is, it’s been permanently transmitted.” J.A. 279. Andrew Mansukhani—the Warden at FCI Butner—testified that he was opposed to any “additional
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access,” because he considered sex offenders to be a particularly manipulative population. J.A. 315. Warden Mansukhani feared that BOP would be unable to control the conduct of the other call participant, which could lead to acts of child exploitation. Id. He also stated that providing point-to-point calls would burden BOP resources because they would need to be monitored like Heyer’s TTY calls and because BOP currently lacks a contract to translate Heyer’s point-to-point communications. And it was the opinion of BOP’s Commitment Treatment Program administrator that if Heyer were to view child exploitation over a point-to-point call, it could be “a big setback for treatment purposes.” J.A. 344.
By contrast, BOP generally makes telephone calls available to non-deaf inmates— including Adam Walsh Act detainees—although Warden Mansukhani testified that he made individualized assessments about which detainees in the Maryland Unit are given phone privileges. That access can also be taken away based on misconduct. Relevant to this appeal, BOP permits thousands of prisoners to make phone calls in sixty foreign languages, including prisoners who have committed acts of terrorism. Those calls are not contemporaneously translated. Instead, they are recorded and stored for later translation pursuant to a BOP contract with an outside company. Warden Mansukhani also testified that certain Adam Walsh Act detainees are denied access to the TRULINCS email system. However, Heyer has not been denied access to TTY or TRULINCS based either on the nature of his offenses or misuse of those privileges.
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C. We turn next to the procedural history. This lawsuit was filed in 2011, and this opinion will not try to set forth each twist and turn in the case. Heyer’s suit originally alleged multiple constitutional and statutory violations. The district court dismissed two claims before discovery and the remaining claims following summary judgment. Heyer appealed to this Court, which reversed the district court’s grant of summary judgment on each of his remaining claims but one. See Heyer v. U.S. Bureau of Prisons (Heyer I), 849 F.3d 202, 221 (4th Cir. 2017). Relevant to this appeal, this Court reversed the district court’s grant of summary judgment on Heyer’s claim that BOP’s failure to provide him access to videophone technology violated his First Amendment rights. Id. at 212–19. On remand, the parties settled all but one of Heyer’s surviving claims. Pursuant to that settlement agreement, BOP agreed to provide Heyer with multiple accommodations, including both in-person ASL interpreter services and VRS calls through the SecureVRS system. The parties were unable to settle Heyer’s claim that BOP’s continued refusal to allow Heyer to make point-to-point calls violated his First Amendment rights. In November 2017, the parties litigated a two-day bench trial in the Eastern District of North Carolina. At the trial’s conclusion, the district court took the case under advisement and eventually issued an order on February 12, 2019. In that order, the court ruled that Heyer had “failed to prove that the BOP’s failure to install and provide Heyer the requested videophone equipment violates the First Amendment” and entered judgment in favor of BOP. J.A. 528. On March 12, 2019, Heyer filed a motion to alter or amend the judgment
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pursuant to Federal Rule of Civil Procedure 59(e). Heyer’s motion was denied by the district court on June 21, 2019. Heyer timely appealed both orders.
II. A. “We review a judgment following a bench trial under a mixed standard of review . . . .” Roanoke Cement Co. v. Falk Corp., 413 F.3d 431, 433 (4th Cir. 2005). The district court’s legal conclusions are reviewed de novo, but the court’s findings of fact are only reviewed for clear error. Butts v. United States, 930 F.3d 234, 238 (4th Cir. 2019). This is a deferential standard, and we do not disturb the district court’s factual findings if they are “plausible in light of the record viewed in its entirety.” Anderson v. City of Bessemer, 470 U.S. 564, 574 (1985). “But while clear error review is deferential, it is not toothless.” Butts, 930 F.3d at 238 (citing United States v. Wooden, 693 F.3d 440, 452 (4th Cir. 2012)). Factual findings made by the district court are not “so sacrosanct as to evade review,” and this Court may reverse those findings when definitely and firmly convinced they are mistaken after a review of the full record. Jiminez v. Mary Washington Coll., 57 F.3d 369, 379 (4th Cir. 1995). This Court has identified four grounds for reversing factual findings: (1) they were derived under an incorrect legal standard, (2) they “are not supported by substantial evidence,” (3) they were made while ignoring “substantial evidence” supporting the opposite conclusion, and (4) they are “contrary to the clear weight of the evidence.” Id.
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B. On appeal, Heyer argues that the First Amendment requires access to point-to-point calls to communicate with other Deaf individuals. “Prison walls do not form a barrier separating prison inmates from the protections of the Constitution.” Turner v. Safley, 482 U.S. 78, 84 (1987). “[A] prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.” Pell v. Procunier, 417 U.S. 817, 822 (1974). The Supreme Court has also recognized that it is no easy feat to run a prison, and this branch of government lacks expertise in navigating the complicated decisions involved in doing so. Turner, 482 U.S. at 84–85. Prison officials are owed deference, and prisoners’ constitutional claims receive a lower level of scrutiny than they might outside of prison walls. See Haze v. Harrison, 961 F.3d 654, 658 (4th Cir. 2020); accord Benzel v. Grammer, 869 F.2d 1105, 1108 (8th Cir. 1989) (noting that the Turner test is “less restrictive” than usual constitutional standards). Thus, “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner, 482 U.S. at 89. Civil detainees like Heyer “are entitled to more considerate treatment and conditions of confinement than” a prisoner. Youngberg v. Romeo, 457 U.S. 307, 321–22 (1982). However, courts in this Circuit accord the same level of deference when applying the Turner framework to civil detainees. See Matherly v. Andrews, 859 F.3d 264, 281–82 (4th Cir. 2017). The Turner framework accordingly looks to the government’s legitimate nonpunitive interests, rather than its penological interests. Id. at 282.
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As a threshold question, the Turner test first asks whether BOP’s decision impinges on Heyer’s First Amendment rights. See Heyer I, 849 F.3d at 213. Defined at the broadest level of generality, Adam Walsh Act detainees have a First Amendment right to communicate with those outside of the Maryland Unit. Id. It appears undisputed at this stage that BOP’s policy does impinge on Heyer’s ability to communicate: BOP’s total ban on point-to-point calls restricts Heyer’s access to the outside world. See, e.g., Overton v. Bazzetta, 539 U.S. 126, 132 (2003) (applying Turner’s four-factor test when prison regulation affected availability of in-person visits). The ban certainly impinges on his First Amendment rights.
The Turner test next asks whether that impingement is reasonable. The Turner Court announced a four-factor test to weigh the reasonableness of a regulation that restricts the constitutional rights of confined individuals like Heyer:
(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 “absence of ready alternatives” to the regulation in question. Heyer I, 849 F.3d at 214 (alterations in original) (quoting Turner, 482 U.S. at 89–90). Turner thus calls for an inherently fact-bound inquiry into Heyer’s rights, BOP’s ban, and the non-punitive interests the ban supports. See Beerheide v. Suthers, 286 F.3d 1179, 1185 (10th Cir. 2002). Heyer bears the burden of establishing that BOP’s ban on point-to-point calls is unreasonable, and “substantial deference” must be given to the judgments of BOP staff. Overton, 539 U.S. at 132. But “this deference is not limitless,” and this Court will
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not sustain policies that lack a reasonable connection between ends and means. Haze, 961 F.3d at 659.
III. The district court concluded that all four Turner factors weigh against Heyer. On appeal, Heyer contends that the district court erred with respect to each factor. After a review of the full record, this Court concludes that the district court correctly found in favor of BOP as to Factor One. However, even if Factor One weighs in favor of BOP, courts must still analyze Factors Two through Four to determine the reasonableness of the policy. Jehovah v. Clarke, 798 F.3d 169, 178 (4th Cir. 2015). Because we conclude the district court clearly erred in finding that Factors Two through Four weigh against Heyer, we hold that BOP’s ban on point-to-point technology violates Heyer’s First Amendment rights.
A. Turner Factor One asks whether there is a rational connection between BOP’s ban on point-to-point calls and BOP’s legitimate, non-punitive interests, or if that connection is instead “so remote as to render the policy arbitrary or irrational.” 482 U.S. at 89–90. A logical connection, even in “the most general sense,” will suffice. Jehovah, 798 F.3d at 178. Thus, Factor One first requires identifying BOP’s asserted non-punitive interests and determining whether they are legitimate before assessing the strength of the connection between those interests and the ban.
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In its post-trial order, the district court considered BOP’s stated interests in guaranteeing safety at FCI Butner, protecting the public, rehabilitating Heyer, and defraying costs. And indeed, this Court has held that each of these interests is legitimate in the context of Adam Walsh Act detention. Matherly, 859 F.3d at 283–84. The district court also correctly held that BOP’s ban bears a rational connection to these interests. As discussed above, BOP staff testified that point-to-point calls create a risk of sexual exploitation, a security concern within the prison, and a potential impediment to Heyer’s own rehabilitation. BOP will also need to translate and monitor his calls, which likely involves some cost.
Although one may question the strength of the connection between BOP’s nonpunitive interests and its ban on point-to-point calls, BOP has satisfied Factor One. To the extent BOP has identified risks posed by point-to-point calls, banning the practice certainly “prevents these [risks] from occurring, and thus the ban bears at least some connection to BOP’s” nonpunitive interests. Heyer I, 849 F.3d at 215; see also Jehovah, 798 F.3d at 178 (finding ban on prison communion wine “in the most general sense” bears a rational connection to interest in “preventing alcohol misuse”).
B. 1. Turner Factor Two asks whether Heyer has “alternative means of exercising” his First Amendment rights. 482 U.S. at 90. A lack of alternatives does not end the reasonableness analysis but is “some evidence that the regulations [are] unreasonable.”
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Overton, 539 U.S. at 135. The district court’s order framed Heyer’s constitutional interest in general terms as a First Amendment “right to ‘communicate with others beyond the prison walls.’” J.A. 521 (quoting Heyer I, 849 F.3d at 213). The court then concluded that “Heyer has numerous alternative means of effectively communicating with individuals (both deaf and non-deaf) outside of FCI-Butner.” J.A. 525. On review, we conclude that the district court misapprehended the specific First Amendment interest Heyer seeks to vindicate, because—for purposes of the Turner analysis—it is properly framed as a right to communicate with the Deaf community.8
We are mindful of the Supreme Court’s admonition that Heyer’s right must be construed “sensibly and expansively.” Thornburgh v. Abbott, 490 U.S. 401, 417 (1989). Thornburgh’s requirement was derived from the Court’s holdings in Turner and O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987). In Turner, the Court held that a restriction on mail between prisoners at different institutions left open alternative forms of communication because prisoners could continue to communicate with non-prisoners. 482 U.S. at 92. In O’Lone, the Court also found that a total ban on the Islamic Jumu’ah ceremony survived Factor Two because prisoners could continue to participate in other Islamic practices. 482 U.S. at 351–52. Following this logic, some sister circuits have construed asserted constitutional interests at a broad level of generality, leaving open the ability to easily find alternative ways of exercising the right. See, e.g., DeHart v. Horn, 227 F.3d 47, 54 (3d
8 Unlike the Court’s factual findings, its legal conclusions about the scope of the right are reviewed de novo. See Butts, 930 F.3d at 238.
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Cir. 2000) (en banc) (asking if prisoner retains “alternative means of exercising his Buddhist beliefs generally”).
This Court has declined in the past to read the import of Thornburgh so expansively, nor will we do so here. In Wall v. Wade, this Court declined to extend O’Lone’s reasoning to a ban on fasting for Ramadan, finding it “unduly restrictive” when applied to “one of the five pillars of Islam,” which is “integral to all practicing Muslims.” 741 F.3d 492, 501 & n.14 (4th Cir. 2014). And some sister circuits have similarly chosen to analyze constitutional rights under Turner at a fairly specific level. See, e.g., Mauro v. Arpaio, 188 F.3d 1054, 1061 (9th Cir. 1999) (examining “right to receive sexually explicit communications”); Giano v. Senkowski, 54 F.3d 1050, 1056 (2d Cir. 1995) (examining right to “reinforc[e] the emotional bond between loved ones and similar affective links”); Smith v. Delo, 995 F.2d 827, 831 (8th Cir. 1993) (examining alternatives means of exercising “the right to communicate with the media and outside religious figures”).
Thus, although Heyer’s rights must be defined “expansively” for purposes of considering his available alternatives, we do not read the word “sensibly” out of Thornburgh’s instructions. 490 U.S. at 417; see also Shakur v. Selsky, 391 F.3d 106, 114 (2d Cir. 2004) (explaining that this requirement is intended “to ‘allow for flexibility in determining what qualifies as another means of expression.’” (emphasis added) (quoting Giano, 54 F.3d at 1055)). Nor do we understand past precedent to compel the generalized definition of Heyer’s right given by the district court. Turner instead requires a contextualized inquiry into the scope of the right. In this case, that context makes clear that the “sensible” focus is on Heyer’s ability to communicate with the Deaf community.
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This case is distinguishable from Turner, which banned essentially all communication between non-relative prisoners at different prisons based on security concerns. 482 U.S. at 81–82. In that case, it made no sense to consider alternative means of communicating with other prisoners, because the entire purpose of the ban was to prevent such communications. By contrast, BOP has not banned point-to-point calls based on its fear that the Deaf community itself is a security risk, and it is entirely sensible to define Heyer’s right in terms of access to that community.9 The record reveals that the Deaf community is the only group with whom Heyer believes he can most fluently and completely express himself. It is the group most central to his identity—a community that shares his language and culture—and a lack of access to that community could very well produce harms, including social isolation. Heyer’s circumstances resemble those of the plaintiffs in Wall, 741 F.3d at 501 & n.14, given the centrality of the interest he is asserting.10
9 We are careful to note that we are not describing an associational right, which the Supreme Court has described as “among the rights least compatible with incarceration.” See Overton, 539 U.S. at 131. Heyer’s First Amendment interest involves the right to communicate, not associate more generally.
10 This Court previously defined Heyer’s right as the right to communicate beyond the walls of FCI Butner and cited sister circuits examining the ability to communicate with friends and family. Heyer I, 849 F.3d at 213 (collecting cases). At the time, BOP had not given Heyer access to videophone technology in any form and there was a genuine dispute as to whether he could communicate with any outside individuals—Deaf or otherwise. Id. at 213–18. Therefore, it made sense to frame the right in more general terms. At trial, however, Heyer’s First Amendment claim was predicated on the need for point-to-point calls to communicate with other members of the Deaf community.
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However, we do not define Heyer’s right as a right to videophone access, although such a definition may be appropriate in a future case.11 Nor will we construe the right so broadly that it extends to his brother, a non-deaf individual with whom Heyer can already communicate through SecureVRS. This Court’s sensible and expansive definition of Heyer’s right leaves open the possibility that Heyer does have alternative ways to communicate with the Deaf community through the other means BOP has made available. See, e.g., Hanrahan v. Mohr, 905 F.3d 947, 959 (6th Cir. 2018) (examining right to interact with the media, rather than right to in-person interviews with the media, and finding alternative means such as telephone calls existed). Point-to-point calls are merely one means of exercising Heyer’s right to communicate with the Deaf community. Accordingly, the district court’s findings must be affirmed unless it clearly erred in finding that Heyer possessed alternative means of communicating with the Deaf community.
2. We next consider the district court’s finding that Heyer had alternative means of communicating with other Deaf individuals, notwithstanding BOP’s ban on point-to-point calls. Such alternatives “need not be ideal; they need only be available.” Overton, 539 U.S. at 135. For instance, in Overton, visitation restrictions left open alternative means of
11 Heyer argues that he has a freestanding First Amendment right to use a videophone that is distinct from the more general right to communicate beyond prison walls. On appeal from summary judgment, this Court framed this case in terms of the right to communicate. We decline to alter that framework at this stage and take no position on this alternative argument.
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communication, because even illiterate prisoners had alternatives such as sending messages through other visitors or making phone calls. Id.
The district court examined Heyer’s ability to communicate with both Deaf and nondeaf individuals and concluded that VRS is an available alternative. VRS, however, only permits calls to non-deaf individuals. The district court’s conclusion that VRS is a suitable alternative was clearly erroneous, because it rests on an incorrect understanding of Heyer’s First Amendment interest, which is an interest in communicating with the Deaf community. See Jiminez, 57 F.3d at 379. The district court also concluded that Heyer had alternative means of communicating with Deaf friends, because he could visit in-person, write letters, send e-mails, and make TTY calls. This finding was “contrary to the clear weight of the evidence considered in light of the entire record,” and we overturn it as clearly erroneous. Id.
At the outset, this Court has previously held that “in-person visitation is of little help in emergencies or other situations where there is a need for immediate contact.” Heyer I, 849 F.3d at 216. No evidence was adduced at trial to support an opposite conclusion. Visitation is thus not of “sufficient utility” to constitute an alternative to point-to-point calls. See Overton, 539 U.S. at 135. Accordingly, Heyer lacks any other means of communication with the Deaf community that does not involve written English. As we acknowledged in Heyer I, the viability of those alternatives accordingly turns on whether Heyer can effectively communicate in written English. Heyer I, 849 F.3d at 216.
The district court found that because “Heyer can read, write, and effectively communicate in English at the third-grade level,” these alternatives satisfied Turner’s
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second factor. J.A. 525–26. But the district court’s conclusion rests, in part, on its conclusory dismissal of Dr. Cokely’s testimony about Heyer’s lack of competency in written English. The district court stated that it “[did] not credit the evidence [that Heyer can effectively communicate in written English] from Dr. Den[n]is Cokely . . . . The cross examination of Dr. Cokely revealed flaws in his methodology and opinions.” J.A. 525– 26. We are cognizant of our obligation to accord the greatest level of deference to the district court’s credibility determinations. Evergreen Int’l, S.A. v. Norfolk Dredging Co., 531 F.3d 302, 308 (4th Cir. 2008). However, the district court’s minimal citations in support of this conclusion compared to the full evidence in the record compel us to hold that the district court clearly erred. The district court did not explain this finding; it simply cited to a portion of Dr. Cokely’s cross-examination in which the government questioned Dr. Cokely’s opinions. In particular, the cited portion of Dr. Cokely’s cross-examination concerns his decision to assess Heyer’s English using a prepared, rather than a random, writing sample and his admission that he can understand some of Heyer’s writing. For instance, Dr. Cokely admitted that certain simple sentences in Heyer’s writing assessment were comprehensible and that at least one of Heyer’s emails appears to have been understood by its recipient.12
12 This portion of the cross-examination also reveals that Dr. Cokely’s interview with Heyer lasted ninety minutes and that Dr. Cokely did not specifically state in his expert report that his assessment was prepared using the ACTFL measure. To the extent these minor errors should be given any weight, they cannot overcome the substantial evidence supporting Dr. Cokely’s assessment.
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Dr. Cokely explained on direct examination that he requested a specific writing sample—in this case, a personal history and daily routine—to ensure Heyer would write about subjects with which he is likely to be most fluent. A writing sample based on those subjects should accurately reflect Heyer’s competency with written English, rather than a struggle to explain an unfamiliar subject. Heyer was required to sit in front of his attorney and an interpreter while preparing that sample to ensure he had no help.
Furthermore, Dr. Cokely’s testimony makes clear that his general ability to understand certain, basic sentences in that assessment—for instance, “I don’t have sister,” or “I have one brother older than me,” J.A. 170—does not undermine his overall assessment. As Dr. Cokely explained, these are likely sentences Heyer has rehearsed and written many times before—and the purpose of the ACTFL measure is to elicit sentences with which Heyer is familiar. But even for this familiar narrative, Heyer’s sentences were oftentimes too ambiguous to be understood: for instance, “[s]ometime people become lazy never sign language.” J.A. 149. Nor does the ability of Heyer’s friend to understand the gist of an email—itself riddled with errors and written in simple sentences—amount to evidence of effective communication.13
Dr. Cokely’s testimony on cross-examination is consistent with his conclusion that Heyer communicates at an extremely deficient level of English and is barely able to handle
13 The text of that email cuts against the conclusion that Heyer can effectively communicate in written English. It reads: “How are you? What up ? You are okay ? Your son did talk to me.your son told me .you went to go to the camp .your grandchild went to around playing your house all the time . ok you have fun timefor your grandchild.your heart for love your grandchild and all family . also too me lvu you.” J.A. 2016.
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basic narration. That conclusion is further supported by Dr. Cokely’s testimony that—on average—the Deaf community possesses similar competency in English. Finally, it is consistent with his testimony that a previous expert had independently determined Heyer spoke English at a roughly third-grade level. The district court therefore erred by entirely rejecting Dr. Cokely’s opinion.
The district court also stated without explanation that it “d[id] not credit Heyer’s testimony.” J.A. 526. However, Heyer’s own testimony that he struggles to express himself in English as well as understand responses received is entirely consistent with Dr. Cokely’s opinion. His testimony is also supported by evidence that individuals who are born deaf face higher barriers to learning English than other foreign-language speakers as well as by Heyer’s testimony that he grew up in a language-deprived environment prior to learning ASL. In rejecting the weight of this evidence, the district court cited to a portion of the testimony of his correctional counselor. But that citation includes the correctional counselor’s statement that “[s]ome of the sentences [in Heyer’s writing] are not complete or they don’t make any sense.” J.A. 354. On cross examination, the correctional counselor further testified that Heyer’s “wording is totally different than a [staff request] that is like legible, I can read. . . . [T]he sentences don’t add up, [don’t] make any sense, even if he copied it from somebody.” J.A. 364.
The district court also cited to a number of examples of Heyer’s writing. We need not parse these in great detail (and indeed, many of the cited pages are sealed before this Court). Trial testimony revealed that recipients understood some of these writings. But testimony from Heyer and his correctional counselor also demonstrated that Heyer often
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requires the assistance of another detainee when drafting these writings—which are often short and simple and which are read in a context that permits their meaning to be understood (for instance, basic, written requests to BOP staff). This is a far cry from establishing that Heyer is able to generally express himself in written English or understand the written English that he receives. The district court conflated Heyer’s ability to produce contextualized, simple writings reflecting a survival level of English with a broader ability to effectively communicate. But these writings do not bear on the broader question of Heyer’s ability to effectively communicate in written English absent the court’s conclusory dismissal of Dr. Cokely’s expert opinions and Heyer’s testimony. The district court’s conclusion that Heyer can communicate in written English is therefore clearly erroneous, because it “is contrary to the clear weight of the evidence considered in light of the entire record.” Jiminez, 57 F.3d at 379.
Although not explicitly addressed by the district court, we also conclude that Heyer’s ability to receive help from other detainees does not elevate alternatives such as email, TTY, or letters to an adequate level. Such a solution is transient and depends on Heyer’s good fortune to be housed with an individual capable of learning some ASL. It therefore lacks “sufficient utility” to support the alternatives. Overton, 539 U.S. at 135. To the extent the district court’s conclusion implicitly relied on the availability of inmate assistance, it was clearly erroneous to do so in this case.
We recognize that “alternatives need not be ideal,” so long as they are available. Id. But Heyer’s English skills are so far from ideal that they cannot support the district court’s conclusion that emails, letters, and TTY are sufficient alternatives. See id. Heyer seeks
28

the ability to communicate with the Deaf community. Those conversations can take on high-stakes dimensions or turn complex—for instance, if Heyer wanted to debate or discuss Deaf culture or current events affecting the Deaf community. The ability to say, “hello, how are you,” does not equate to the ability to effectively communicate with his community. Given the right Heyer seeks to vindicate, it was clearly erroneous to find he can effectively exercise that right in written English.14
C. Turner Factor Three requires this Court to weigh “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.” 482 U.S. at 90. In this case, Factor Three asks whether providing Heyer access to point-to-point calls “will have a significant ‘ripple effect’ on fellow inmates or on prison staff.” Id. When accommodating the right comes “at the cost of significantly less liberty and safety for everyone else, guards and other prisoners alike,” courts should defer to BOP’s decision-making. Id. at 92. Factor Three therefore looks inwards to examine the overall effect of the accommodation on prison administration. The district court concluded that Factor Three weighs against Heyer. In particular, the court found that providing point-to-point calls would have serious consequences within the prison based on (1) the need for BOP to secure a waiver to the DOJ’s IT policies, (2)
14 Because we conclude that Heyer cannot effectively communicate in English, we do not reach his argument that TTY is independently “an inadequate substitute for a videophone.” Opening Br. at 40.
29

the risk that Heyer would abuse point-to-point calls, (3) the risk that Heyer would be pressured by another inmate for access to point-to-point calls, (4) the difficulty involved with real-time monitoring of conversations conducted entirely in ASL, and (5) the financial cost of additional safeguards. Ultimately, our review of the record convinces us that the district court “disregarded substantial evidence that would militate a conclusion contrary to that reached,” Jiminez, 57 F.3d at 379, and clearly erred in reaching this conclusion.
First. The district court credited the testimony of Todd Craig that BOP would be forced to secure a waiver from DOJ to allow point-to-point calls at FCI Butner. However, the trial testimony makes clear that this waiver actually permits BOP to bypass the normal DOJ IT protocols. And BOP has already received a waiver for the physical hardware required to provide point-to-point calls as well as for TTY, VRS, and a third form of services known as Video Remote Interpreting.15 Although Craig generally described the process as a “hurdle,” there is no evidence the waiver process would create more than a de minimis effect on BOP. J.A. 298.
Second. The district court concluded that there was a risk that Heyer could abuse point-to-point video calls in a manner that would create internal security concerns. There is some record evidence to support the general conclusion that point-to-point calls could hypothetically create these risks. For instance, Craig testified at trial that the technology has the capability to connect to a smartphone outside of the prison, which could permit Heyer to receive “real-time” information aiding an escape. He could also hypothetically
15 Video Remote Interpreting is not otherwise relevant to this appeal.
30

receive a coded instruction from the outside world to commit a disruptive act within the Maryland Unit or send a coded request to have contraband smuggled into the unit.
In its factual findings, the district court noted several safety features of SecureVRS that mitigate those concerns for VRS calls. The district court specifically identified the fact that the SecureVRS phone is “mounted to a wall in a hallway directly outside of Heyer’s unit team office,” thereby allowing BOP staff to supervise the call. J.A. 519. Those calls will only be allowed to reach preapproved numbers, and BOP can monitor those calls in real-time or record them for later review. The record also makes clear that these same features are available for point-to-point calls made on the SecureVRS platform. The only difference between these SecureVRS calls and point-to-point calls is that the latter directly connect the call participants, while the former are mediated by a translator. Although this unique feature gives rise to the risks identified above, it does not alter the existence of numerous safety mechanisms to prevent the misconduct from occurring. Heyer could make his point-to-point calls in a hallway under staff supervision (as BOP already requires for TTY calls), those calls could be restricted to numbers pre-approved by BOP, and those calls would be recorded and stored. As Heyer’s communication technology expert testified, the system allows calls to be immediately disconnected in the event of misconduct. Finally, any criminal activity would be recorded and available for prosecution.16
16 These features therefore also preserve BOP’s distinct interest in Heyer’s own rehabilitation, because he would be unable to use point-to-point calls to engage in sexual misconduct.
31

Third. The district court also credited BOP staff testimony that Heyer’s unique access to point-to-point calls would create a leverage point between Heyer and other detainees that could lead to exploitation and violence. This theory assumes that videophone access creates a point of leverage for those detainees. But given the safeguards detailed above, BOP has not explained how Heyer’s access to point-to-point calls could actually be used by other inmates in a way that provides any incentive for other inmates to exploit Heyer or vice-versa.
Fourth. The district court found that “to safeguard the public, the BOP would need to expend substantial resources to monitor ASL conversations in real-time.” J.A. 527. At trial, Warden Mansukhani testified that directly monitoring point-to-point calls would create “a tremendous impact” on staff resources. J.A. 319. However, as described above, BOP staff already engage in the labor-intensive process of directly monitoring Heyer’s TTY calls, and the evidence presented at trial demonstrates that point-to-point calls would be a more efficient use of staff resources. Heyer is given extended time to use the TTY device, but Craig testified that he would likely only be given the typical fifteen minutesper-call for VRS or point-to-point calls. Additionally, the platform would automate the process of restricting Heyer’s calls to preapproved numbers, recording the call, and storing Heyer’s call history. TTY calls currently requires BOP staff to do so manually.
The district court also found that—notwithstanding any burdens imposed on BOP staff resources—point-to-point calls would significantly burden BOP financially because Heyer’s point-to-point calls would have to be live-translated from ASL. The record provides no basis to conclude that BOP would need to live-translate Heyer’s calls to
32

address its security concerns. See Jiminez, 57 F.3d at 379 (noting clear error exists when “the district court’s conclusion is contrary to the clear weight of the evidence”). Indeed, trial testimony revealed that BOP inmates speak sixty foreign languages on the telephone and that BOP expends resources to translate those calls for thousands of inmates. These calls are not live-translated, despite some of those calls being made by international terrorists. BOP instead records those calls and then delivers the recordings to an outside contractor for translation. It takes BOP several days to receive the translations back from the contractor. Based on this record, Heyer would be the sole inmate in BOP custody whose calls would be live-translated.
Fifth. The district court’s opinion also overlooks substantial evidence that any costs imposed on BOP staff resources or finances would be de minimis. The evidence established at trial demonstrates that the SecureVRS hardware has already been installed and that this hardware supports point-to-point calls. It is true that BOP will likely incur some cost in procuring post-hoc translation of Heyer’s calls. The Eighth Circuit appears to reject requested accommodations unless they are cost-free, Yang v. Mo. Dep’t of Corr., 833 F.3d 890, 895 (8th Cir. 2016), but this Circuit has not been so restrictive, see Heyer I, 849 F.3d at 217 n.10 (suggesting a $2500 expense would be de minimis); accord Beerheide, 286 F.3d at 1191 ($13,000 expense is de minimis in light of overall food budget). The exact dollar value of this additional translation is unknown, but BOP already contracts for in-person ASL interpreters as well as the translation of foreign language calls. BOP did not attempt to determine whether those same contractors could translate Heyer’s calls or how much it would cost to do so. See Kikumura v. Turner, 28 F.3d 592, 599 (7th
33

Cir. 1994) (“[A] prison may not restrict a prisoner’s rights without even looking to see how the rights might be accommodated and estimating the expense entailed by doing so.”). Regardless, the increased marginal cost of translation created by one more inmate is clearly de minimis compared to the robust translation and interpretation contracts already in place.
A review of the full record fully convinces us that the district court’s conclusions are erroneous. The district court’s analysis ultimately turns on the premise that—because they allow unmediated contact between ASL speakers—point-to-point calls are uniquely capable of giving rise to the concerns identified by the court. However, the district court’s focus on the hypothetical risks of point-to-point calls overlooks substantial evidence that BOP already utilizes resource-efficient means of mitigating the risks associated with these calls. Point-to-point calls therefore would not produce the “significant ‘ripple effect’” warned of by the Turner Court. 482 U.S. at 90.
D. Finally, Turner Factor Four asks Heyer to identify a “ready alternative[]” to a total ban on point-to-point calls “that fully accommodates [his] rights at de minimis cost to” BOP’s nonpunitive interests. 482 U.S. at 90–91.17 Heyer contends that BOP could provide point-to-point calls with the additional safeguards it provides for other forms of communication. The district court rejected this contention, concluding that BOP staff
17 Unlike Factor Three—which considers the impact of the accommodation on prison administration—Factor Four looks to its effect on BOP’s broader interests such as public safety and Heyer’s own rehabilitation.
34

would have to monitor each of his calls and fund live-translation, which would impose greater than de minimis financial costs. The court also credited trial testimony that this accommodation would pose a greater than de minimis threat to public safety. Because point-to-point calls directly connect the participants, there is a risk that Heyer could expose himself to a child, receive images of child pornography, or watch another caller exploit a child for his benefit. The court also credited the testimony of Warden Mansukhani that these risks are heightened in the Maryland Unit—which houses sexually dangerous persons with a history of manipulative behavior—as well as by Heyer’s own history of sexual misconduct. However, the district court does not explain why already available safeguards do not mitigate these risks to a de minimis level. The court conflated the nature of the risks posed by videophones with the likelihood those risks will be realized, ignoring substantial evidence weighing in Heyer’s favor as to this Factor. See Jiminez, 57 F.3d at 379.
First. As Heyer argues, providing point-to-point calls through the SecureVRS system with the same protocols associated with TTY calls would greatly reduce the risk that those calls will result either in child exploitation or disruptive behavior within the prison. BOP has presented no testimony explaining how Heyer would successfully expose himself in a prison hallway while under the watchful eye of BOP staff. It is true that BOP staff could not restrain the other call participant, but trial testimony established that the SecureVRS system can instantly sever the connection in the event of misconduct. BOP will also have a recording of the call that it can refer to prosecutors if any criminal activity occurs. At trial, Craig testified that these same safeguards were sufficient to mitigate risks associated with TTY and VRS.
35

Second. The testimony clearly established that treating Heyer’s point-to-point calls like foreign language calls will protect against other risks associated with coded messages. As explained above, BOP already records and then translates calls made by thousands of inmates in sixty foreign languages.
Third. A review of the full record establishes that these additional safeguards will impose only a de minimis burden on BOP’s resources. The district court’s analysis of these burdens is limited to the cost of having staff members monitor Heyer’s calls and the cost of live-translation. In particular, the district court cited Matherly, 859 F.3d at 283, for the proposition that the need for staff supervision creates a burden on BOP’s resources. However, the proposed alternative in Matherly would have required an entirely new policy of supervising every Adam Walsh Act detainee while they open their mail. Id. By contrast, BOP already supervises Heyer’s TTY calls. Finally, as discussed above, there is no evidence in the record suggesting a need for live-translation. BOP’s total ban on point-topoint calls is an “exaggerated response” to perceived threats to its interests. Turner, 482 U.S. at 87.
IV. We recognize our circumscribed role when reviewing the district court’s judgment following a bench trial, especially considering the deference given by this branch to the judgment of prison officials. But we may not abdicate that role in the face of clear error. Heyer’s constitutional rights are not defined merely by his status as a civil detainee or his past conduct. They are also defined by his status as a Deaf individual cut off from his
36

community in a manner more complete than even foreign language prisoners. The evidence at trial established that Heyer lacks any ability to communicate with the Deaf community. And the district court clearly erred by crediting BOP testimony about the risks of point-to-point calls without considering the wealth of testimony about safety features that have managed those risks for every other form of communication it makes available. Although we are hesitant to disturb the district court’s considered findings, we must do so here. We reverse the district court’s post-trial judgment and remand for entry of judgment in favor of Heyer as well as any necessary proceedings to determine an appropriate remedy.
REVERSED AND REMANDED
37

 
 Alerts not yet Supported for this Docket

INTERPRETER

U.S. District Court EASTERN DISTRICT OF NORTH CAROLINA (Western Division)
CIVIL DOCKET FOR CASE #: 5:11-ct-03118-D

Heyer et al v. United States Bureau of Prisons et al Assigned to: District Judge James C. Dever, III Case in other court: 15-06826
19-07027 Cause: 28:1331 Federal Question: Bivens Act

Date Filed: 06/20/2011 Jury Demand: None Nature of Suit: 555 Prisoner Petitions (Prison Condition) Jurisdiction: U.S. Government Defendant

Plaintiff Thomas Heyer

represented by Ian S. Hoffman Arnold & Porter LLP 555 Twelfth St., NW Washington, DC 200004 202-942-5000 Fax: 202-942-5999 Email: ian.hoffman@aporter.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Philip J. Fornaci Washington Lawyers' Committee For Civil Rights 700 14th Street NW, Suite 400 Washington, DC 20005 202-319-1000 ext. 133 Fax: 202-319-1010 Email: phil_fornaci@washlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carolyn A. Pearce Arnold & Porter LLP Three Embarcadero Center, San Francisco, CA 94111 415-471-3355 Fax: 415-471-3400 Email: carolyn.pearce@aporter.com

Plaintiff
Robert Paul Boyd TERMINATED: 02/23/2017

ATTORNEY TO BE NOTICED
Deborah M. Golden Washington Lawyers' Committee For Civil Rights 700 14th Street NW, Suite 400 Washington, DC 20005 202-630-0332 Email: deb.golden@gmail.com TERMINATED: 05/23/2017
Snayha M. Nath Federal Public Defender - EDNC 150 Fayetteville Street Mall, Suite 450 Raleigh, NC 27601 919-856-4236 Fax: 919-856-4477 Email: snayha_nath@fd.org TERMINATED: 01/25/2021
Tara L. Williamson Arnold Porter Kaye Scholer LLP 601 Massachusetts Ave. NW Washington, DC 20001-3743 202-942-6034 Fax: 202-942-5999 Email: tara.williamson@apks.com ATTORNEY TO BE NOTICED
Neil A. Riemann Penry Riemann PLLC 1330 Saint Mary's St., Suite 260 Raleigh, NC 27605 919-833-9449 Fax: 919-516-0880 Email: neil.riemann@penryriemann.com ATTORNEY TO BE NOTICED
represented by Ian S. Hoffman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant United States Bureau of Prisons

Philip J. Fornaci (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carolyn A. Pearce (See above for address) ATTORNEY TO BE NOTICED
Deborah M. Golden (See above for address) TERMINATED: 05/23/2017
Neil A. Riemann (See above for address) ATTORNEY TO BE NOTICED
represented by Christina A. Kelley Federal Bureau of Prisons Legal Department P. O. Box 1600 Butner, NC 27509 919-575-3900 x6079 Fax: 919-575-4813 Email: c4thompson@bop.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
G. Norman Acker , III United States Attorney's Office EDNC 150 Fayetteville Street, Suite 2100 Raleigh, NC 27601 919-856-4315 Fax: 919-856-4821 Email: norman.acker@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael D. Bredenberg U.S. Attorney's Office 150 Fayetteville Street

Suite 2100 Raleigh, NC 27601 919-856-4308 Fax: 919-856-4821 Email: michael.bredenberg2@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert J. Dodson United States Attorney's Office EDNC 150 Fayetteville Street, Suite 2100 Raleigh, NC 27601 919-856-4054 Fax: 919-856-4487 Email: robert.dodson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer D Dannels Federal Bureau of Prisons PO Box 1600 Butner, NC 27509 919-575-3900 X 6076 Fax: 919-575-4813 Email: jdannels@bop.gov TERMINATED: 09/29/2017
Matthew Lee Fesak United States Attorney's Office EDNC 150 Fayetteville Street, Suite 2100 Raleigh, NC 27601 919-856-4530 Fax: 919-856-4821 Email: matthew.fesak@usdoj.gov TERMINATED: 09/29/2017
R. A. Renfer , Jr. United States Attorney's Office EDNC 150 Fayetteville Street, Suite 2100 Raleigh, NC 27601 919-856-4530 Email: usance.ecfcivil2@usdoj.gov

Defendant
Thomas R. Kane in his official capacity as Acting Director of the United States Bureau of Prisons

TERMINATED: 09/29/2017
Seth Morgan Wood United States Attorney's Office EDNC 150 Fayetteville Street, Suite 2100 Raleigh, NC 27601 919-856-4530 Fax: 919 856-4821 Email: seth.wood@usdoj.gov TERMINATED: 09/26/2013
represented by Christina A. Kelley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
G. Norman Acker , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael D. Bredenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert J. Dodson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer D Dannels (See above for address) TERMINATED: 09/29/2017
Matthew Lee Fesak (See above for address) TERMINATED: 09/29/2017
R. A. Renfer , Jr. (See above for address) TERMINATED: 09/29/2017
Seth Morgan Wood

Defendant Ike Eichenlaub in his official capacity as Regional Director of the United States Bureau of Prisons Mid-Atlantic Region
Defendant Warden Sara M. Revell

(See above for address) TERMINATED: 09/26/2013
represented by Christina A. Kelley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
G. Norman Acker , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael D. Bredenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert J. Dodson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer D Dannels (See above for address) TERMINATED: 09/29/2017
Matthew Lee Fesak (See above for address) TERMINATED: 09/29/2017
R. A. Renfer , Jr. (See above for address) TERMINATED: 09/29/2017
Seth Morgan Wood (See above for address) TERMINATED: 09/26/2013
represented by Christina A. Kelley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Warden Tracy W. Johns

G. Norman Acker , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael D. Bredenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert J. Dodson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer D Dannels (See above for address) TERMINATED: 09/29/2017
Matthew Lee Fesak (See above for address) TERMINATED: 09/29/2017
R. A. Renfer , Jr. (See above for address) TERMINATED: 09/29/2017
Seth Morgan Wood (See above for address) TERMINATED: 09/26/2013
represented by Christina A. Kelley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
G. Norman Acker , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael D. Bredenberg (See above for address) LEAD ATTORNEY

Defendant Eric H. Holder, Jr.

ATTORNEY TO BE NOTICED
Robert J. Dodson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer D Dannels (See above for address) TERMINATED: 09/29/2017
Matthew Lee Fesak (See above for address) TERMINATED: 09/29/2017
R. A. Renfer , Jr. (See above for address) TERMINATED: 09/29/2017
Seth Morgan Wood (See above for address) TERMINATED: 09/26/2013
represented by Christina A. Kelley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
G. Norman Acker , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael D. Bredenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert J. Dodson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer D Dannels (See above for address)

TERMINATED: 09/29/2017
Matthew Lee Fesak (See above for address) TERMINATED: 09/29/2017
R. A. Renfer , Jr. (See above for address) TERMINATED: 09/29/2017
Seth Morgan Wood (See above for address) TERMINATED: 09/26/2013

Date Filed 06/20/2011
06/21/2011 06/22/2011
06/22/2011
07/29/2011 08/03/2011

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 350 receipt number 0417-1653669.), filed by Thomas Heyer, Robert Paul Boyd. (Attachments: # 1 Civil Cover Sheet with attachment, # 2 summons for issuance, # 3 ummons for issuance, # 4 ummons for issuance, # 5 ummons for issuance, # 6 ummons for issuance) (Riemann, Neil) (Entered: 06/20/2011)
2 NOTICE of Appearance by Philip J. Fornaci on behalf of All Plaintiffs (Fornaci, Philip) (Entered: 06/21/2011)
3 ORDER REASSIGNING CASE - All future pleadings should reflect the revised case number of: 5:11-CT-3118-D. Signed by Julie Richards, Chief Deputy Clerk for Dennis P. Iavarone, Clerk of Court on 6/22/11. (Blankenship, T.) (Entered: 06/22/2011)
NOTICE OF CORRECTION re: 1 Complaint. Since this action alleges claims regarding conditions of confinement the nature of suit has been changed to 555 and the cause of action has been changed to 28:1331. (Blankenship, T.) (Entered: 06/22/2011)
4 NOTICE of Appearance by Ian S. Hoffman on behalf of All Plaintiffs. (Hoffman, Ian) (Entered: 07/29/2011)
5 ORDER DIRECTING CLERK TO CONTINUE MANAGEMENT OF CASE - Plaintiff's claims are not clearly frivolous. Accordingly, the clerk is DIRECTED to continue management of the action. Signed by US District Judge James C. Dever III on 8/3/2011. (Taylor, B.) (Entered: 08/03/2011)

08/04/2011

6 Summons Issued as to: Ike Eichenlaub, Tracy W. Johns, Thomas R Kane, Sara M. Revell, and United States Bureau of Prisons. (Taylor, B.) (Entered: 08/04/2011)

09/28/2011

7 NOTICE of Appearance by Carolyn A. Pearce on behalf of All Plaintiffs. (Pearce, Carolyn) (Entered: 09/28/2011)

10/17/2011

8 AFFIDAVIT of Service for summons and complaint served on all defendants on various dates, filed by Robert Paul Boyd, Thomas Heyer. (Attachments: # 1 Exhibit 1 - Proof for Eichenlaub, # 2 Exhibit 2 - Proof for BoP and Kane, # 3 Exhibit 3 - Proof for Johns, # 4 Exhibit 4 - Proof for Revell, # 5 Exhibit 5 - Proof for AG, # 6 Exhibit 6 - Proof for US Atty) (Riemann, Neil) (Entered: 10/17/2011)

10/25/2011

9 AFFIDAVIT of Service for Summons and Complaint served on Ike Eichenlaub, Thomas Kane, U.S. Bureau of Prisons on October 18, 2011 and October 20, 2011, filed by Robert Paul Boyd and Thomas Heyer. (Attachments: # 1 Exhibit 1 - Proof for Ike Eichenlaub, # 2 Exhibit 2 Proof for Bureau of Prisons, # 3 Exhibit 3 - Proof for Thomas Kane) (Pearce, Carolyn) (Entered: 10/25/2011)

11/09/2011 10 NOTICE of Change of Address by Neil A. Riemann (Riemann, Neil) (Entered: 11/09/2011)

12/12/2011

11 NOTICE of Appearance by Seth Morgan Wood on behalf of Ike Eichenlaub, Tracy W. Johns, Thomas R Kane, Sara M. Revell and United States Bureau of Prisons. (Wood, Seth) (Entered: 12/12/2011)

12/12/2011

12 MOTION for Extension of Time to File Response/Reply as to 1 Complaint, by Ike Eichenlaub, Tracy W. Johns, Thomas R Kane, Sara M. Revell and United States Bureau of Prisons. (Attachments: # 1 Text of Proposed Order) (Wood, Seth) (Entered: 12/12/2011)

12/13/2011

13 ORDER granting 12 Motion for Extension of Time to File Response re 1 Complaint; Responses due by 1/11/2012. Signed by Dennis P. Iavarone, Clerk of Court on 12/13/2011. Copy mailed to plaintiff. (McDowell, G.) (Entered: 12/13/2011)

01/11/2012

14 MOTION to Dismiss by Ike Eichenlaub, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Wood, Seth) (Entered: 01/11/2012)

01/11/2012

15 Memorandum in Support re 14 MOTION to Dismiss filed by Ike Eichenlaub, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Attachments: # 1 Exhibit (A) Declaration of Lynnell Cox with Attachments 1 through 5, # 2 Exhibit (B) Declaration

of Mina Raskin, # 3 Exhibit (C) Declaration of Nicole C. Weaver) (Wood, Seth) (Entered: 01/11/2012)

01/30/2012

16 Consent MOTION for Extension of Time to File Response/Reply as to 14 MOTION to Dismiss by Robert Paul Boyd, Thomas Heyer. (Attachments: # 1 Text of Proposed Order) (Hoffman, Ian) (Entered: 01/30/2012)

02/01/2012

17 ORDER - GRANTING 16 Motion for Extension of Time to File Response re 14 MOTION to Dismiss. Plaintiff's response due by 3/7/2012. Signed by Dennis P. Iavarone, Clerk of Court on 2/1/2012. (Indig, A.) (Entered: 02/01/2012)

02/20/2012

18 Consent MOTION for Extension of Time to File Response/Reply as to 14 MOTION to Dismiss by Robert Paul Boyd, Thomas Heyer. (Attachments: # 1 Text of Proposed Order) (Hoffman, Ian) (Entered: 02/20/2012)

02/21/2012

19 ORDER - GRANTING 18 Motion for Extension of Time to File Response re 14 MOTION to Dismiss. Plaintiff's response due by 3/28/2012. Signed by Dennis P. Iavarone, Clerk of Court on 2/21/2012. (Indig, A.) (Entered: 02/21/2012)

03/23/2012

20 Consent MOTION for Extension of Time to File Response/Reply as to 14 MOTION to Dismiss by Robert Paul Boyd, Thomas Heyer. (Attachments: # 1 Text of Proposed Order) (Hoffman, Ian) (Entered: 03/23/2012)

03/26/2012

21 ORDER - GRANTING 20 Motion for Extension of Time to File Response re 14 MOTION to Dismiss. Plaintiffs' response due by 4/11/2012. Signed by Julie A. Richards, Clerk of Court on 3/26/2012. (Indig, A.) (Entered: 03/26/2012)

04/04/2012

22 MOTION for Leave to File First Amended Complaint by Robert Paul Boyd, Thomas Heyer. (Attachments: # 1 Exhibit A -- Proposed First Amended Complaint, # 2 Text of Proposed Order) (Hoffman, Ian) (Entered: 04/04/2012)

04/04/2012

NOTICE OF DEFICIENCY re: 22 Motion for Leave to File: IN FUTURE FILINGS counsel is to refer to the WESTERN DIVISION in the case caption on all documents filed in this case. There is not a Raleigh division. (Fogle, L.) (Entered: 04/04/2012)

04/06/2012

Motion Submitted to Staff Counsel III: 22 MOTION for Leave to File First Amended Complaint. (Indig, A.) (Entered: 04/06/2012)

04/10/2012

23 ORDER - GRANTING 22 Motion for Leave to File and directs plaintiffs to file their proposed amended complaint on or before April 17, 2012, and to present summonses to the Clerk for issuance. DENYING as moot 14 Motion to Dismiss. Signed by Chief Judge James C. Dever III on 4/10/2012. (Indig, A.) (Entered: 04/10/2012)

04/11/2012

24 ***REFER TO DE # 25 FOR CORRECTED SUMMONS AMENDED COMPLAINT against All Defendants, filed by Thomas Heyer, Robert Paul Boyd. (Attachments: # 1 Summons for Issuance) (Hoffman, Ian) (Entered: 04/11/2012)

04/12/2012

NOTICE OF DEFICIENCY re: 24 Amended Complaint: Failure to Flatten Form (Summons for Issuance). The court prefers flattened pdf fillable forms, as stated in Section B(3) of the Administrative Policies and Procedures Manual. Counsel is directed to re-file the summons as a "Flattened Document." (Fogle, L.) (Entered: 04/12/2012)

04/12/2012

25 ***CORRECTED SUMMONS - AMENDED DOCUMENT by Robert Paul Boyd, Thomas Heyer. Summons for Issuance. (Hoffman, Ian) (Entered: 04/12/2012)

04/12/2012 26 Summons Issued as to Eric H. Holder, Jr, U.S. Attorney and U.S. Attorney General. (Blankenship, T.) (Entered: 04/12/2012)

04/23/2012

27 NOTICE of Appearance by Seth Morgan Wood on behalf of Ike Eichenlaub, Eric H. Holder, Jr., Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Wood, Seth) (Entered: 04/23/2012)

04/23/2012

28 MOTION for Extension of Time to File Response/Reply as to 24 Amended Complaint by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Attachments: # 1 Text of Proposed Order) (Wood, Seth) (Entered: 04/23/2012)

04/24/2012

29 ORDER - GRANTING 28 Motion for Extension of Time to File Response to Plaintiff's First Amended Complaint up to and including 6/11/2012. Signed by Julie A. Richards, Clerk of Court on 4/24/2012. (Indig, A.) (Entered: 04/24/2012)

06/06/2012

30 Second MOTION for Extension of Time to File Answer or Response as to 24 Amended Complaint (Unopposed) by Ike Eichenlaub, Eric H. Holder, Jr., Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Attachments: # 1 Text of Proposed Order) (Wood, Seth) (Entered: 06/06/2012)

06/07/2012

31 ORDER - GRANTING 30 Motion for Extension of Time to File Response as to 24 Amended Complaint (Unopposed). Responses due by 6/25/2012. Signed by Julie A. Richards, Clerk of Court on 6/7/2012. (Indig, A.) (Entered: 06/07/2012)

06/25/2012

32 MOTION to Dismiss , MOTION for Summary Judgment by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Wood, Seth) (Entered: 06/25/2012)

06/25/2012

33 Memorandum in Support regarding 32 MOTION to Dismiss MOTION for Summary Judgment filed by Ike Eichenlaub, Eric H. Holder, Jr., Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Attachments: # 1 Exhibit List, # 2 Exhibit (A) Filed Separately Under Declaration, # 3 Exhibit (B) Declaration of Mina Raskin, # 4 Exhibit (C) Declaration of Kenneth McKoy, # 5 Exhibit (D) Declaration of Karen L. Steinour, # 6 Exhibit (E) Declaration of Amy Jacobs, # 7 Exhibit (E) Declaration of Jordan May) (Wood, Seth) (Entered: 06/25/2012)

06/25/2012

34 Declaration regarding 33 Memorandum in Support, (Declaration of Cornelia J. Coll) by Sara M. Revell, United States Bureau of Prisons, Tracy W. Johns, Thomas R Kane, Eric H. Holder, Jr., Ike Eichenlaub filed by Sara M. Revell, United States Bureau of Prisons, Tracy W. Johns, Thomas R Kane, Eric H. Holder, Jr., Ike Eichenlaub. (Wood, Seth) (Entered: 06/25/2012)

07/19/2012

35 RESPONSE in Opposition regarding 32 MOTION to Dismiss MOTION for Summary Judgment filed by Robert Paul Boyd, Thomas Heyer. (Attachments: # 1 Exhibit A - Heyer Order ) (Hoffman, Ian) Modified on 7/20/2012 to correct description of order. (Fogle, L.) (Entered: 07/19/2012)

07/19/2012

36 MOTION Pursuant to Rule 56(d) for Denial of or, in the Alternative, for Continuance to Respond to Defendants' Alternative Motion for Summary Judgment by Robert Paul Boyd, Thomas Heyer. (Attachments: # 1 Declaration of Ian S. Hoffman) (Hoffman, Ian) (Entered: 07/19/2012)

07/19/2012

37 MOTION for Summary Judgment as to Count II of the First Amended Complaint by Robert Paul Boyd, Thomas Heyer. (Hoffman, Ian) (Entered: 07/19/2012)

07/19/2012

38 Memorandum in Support regarding 37 MOTION for Summary Judgment as to Count II of the First Amended Complaint filed by Robert Paul Boyd, Thomas Heyer. (Attachments: # 1 Exhibit A - Heyer Order) (Hoffman, Ian) Modified on 7/20/2012 to correct description of order. (Fogle, L.) (Entered: 07/19/2012)

07/20/2012

NOTICE OF CORRECTION regarding: 38 Memorandum in Support, 35 Response in Opposition to Motion - These document do not comply with Section L of this court's Electronic Case Filing Administrative Policies and Procedures Manual pertaining to clear and complete identification/description of attachments. These documents have been modified. FUTURE filings without complete descriptions for the exhibits will have to be re-filed. (Fogle, L.) (Entered: 07/20/2012)

08/02/2012

39 RESPONSE regarding 35 Response in Opposition to Motion, (Reply to Plaintiffs' Opposition to Defendants' Motion to Dismiss Or, In The Alternative, For Summary Judgment) filed by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Attachments: # 1 Exhibit A. Findings of Fact and Conclusions of Law) (Wood, Seth) (Entered: 08/02/2012)

08/09/2012

40 RESPONSE in Opposition regarding 36 MOTION Pursuant to Rule 56(d) for Denial of or, in the Alternative, for Continuance to Respond to Defendants' Alternative Motion for Summary Judgment filed by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Wood, Seth) (Entered: 08/09/2012)

08/09/2012

41 RESPONSE in Opposition regarding 37 MOTION for Summary Judgment as to Count II of the First Amended Complaint filed by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Attachments: # 1 (A) Supplemental Declaration of Karen L. Steinour) (Wood, Seth) (Entered: 08/09/2012)

08/23/2012

42 REPLY to Response to Motion regarding 36 MOTION Pursuant to Rule 56(d) for Denial of or, in the Alternative, for Continuance to Respond to Defendants' Alternative Motion for Summary Judgment filed by Robert Paul Boyd, Thomas Heyer. (Hoffman, Ian) (Entered: 08/23/2012)

08/23/2012

43 REPLY to Response to Motion regarding 37 MOTION for Summary Judgment as to Count II of the First Amended Complaint filed by Robert Paul Boyd, Thomas Heyer. (Hoffman, Ian) (Entered: 08/23/2012)

08/24/2012

Motions Submitted to Staff Counsel III: 37 MOTION for Summary Judgment as to Count II of the First Amended Complaint, 36 MOTION Pursuant to Rule 56(d) for Denial of or, in the Alternative, for Continuance to Respond to Defendants' Alternative Motion for Summary Judgment and 32 MOTION to Dismiss MOTION for Summary Judgment . (McDowell, G.) (Entered: 08/24/2012)

10/15/2012 44 NOTICE by Ike Eichenlaub, Eric H. Holder, Jr., Tracy W. Johns, Thomas R. Kane, Sara M. Revell, United States Bureau of Prisons

regarding 33 Memorandum in Support, 32 MOTION to Dismiss MOTION for Summary Judgment. (Supplement to Defendants' Alternative Motion for Summary Judgment) (Attachments: # 1 Declaration of Justin F. Andrews) (Wood, Seth) (Entered: 10/15/2012)

10/26/2012 45 RESPONSE regarding 44 Notice-(other), filed by Robert Paul Boyd, Thomas Heyer. (Pearce, Carolyn) (Entered: 10/26/2012)

03/11/2013

46 ORDER - Plaintiffs' motion for summary judgment on count two 37 is DENIED WITHOUT PREJUDICE, and defendants' motion to dismiss or for summary judgment 32 is GRANTED IN PART and DENIED IN PART. Count one under the Rehabilitation Act is DISMISSED without prejudice for failure to exhaust administrative remedies under 28 C.F.R. § 39.170. Count five under the Fifth Amendment is DISMISSED without prejudice for failure to state a claim upon which relief can be granted. Counts two, three, four, six, seven, eight, nine, and ten survive. Plaintiffs' Ru1e 56(d) motion 36 is GRANTED IN PART as to the remaining claims, and defendants' motion for summary judgment is DENIED without prejudice as to the remaining claims. The parties shall confer and file a proposed scheduling order (or separate proposed orders, if the parties cannot agree) no later than March 28, 2013. Signed by Chief Judge James C. Dever III on 3/11/2013. (Indig, A.) (Entered: 03/11/2013)

03/25/2013

47 MOTION for Extension of Time to File Response/Reply as to 24 Amended Complaint by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Attachments: # 1 Text of Proposed Order) (Wood, Seth) (Entered: 03/25/2013)

03/26/2013

48 ORDER - GRANTING 47 Motion for Extension of Time to Answer regarding plaintiff's amended complaint. Responses due by 4/8/2013. Signed by Chief Judge James C. Dever III on 3/26/2013. (Indig, A.) (Entered: 03/26/2013)

03/28/2013

49 REPORT of Rule 26(f) Planning Meeting by Ike Eichenlaub, Eric H. Holder, Jr., Tracy W. Johns, Thomas R. Kane, Sara M. Revell, United States Bureau of Prisons. (Wood, Seth) (Entered: 03/28/2013)

03/28/2013 50 Rule 26(f) Report (individual) by Robert Paul Boyd, Thomas Heyer. (Hoffman, Ian) (Entered: 03/28/2013)

04/08/2013

51 ANSWER to 24 Amended Complaint (Plaintiff's Verifed First Amended Complaint) by Ike Eichenlaub, Eric H. Holder, Jr., Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Wood, Seth) (Entered: 04/08/2013)

04/22/2013

52 AMENDED ANSWER to 24 Amended Complaint by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Wood, Seth) (Entered: 04/22/2013)

05/01/2013

53 Notice of Substitution of Counsel by Deborah M. Golden on behalf of Robert Paul Boyd, Thomas Heyer substituting for Philip J. Fornaci. (Golden, Deborah) (Entered: 05/01/2013)

05/31/2013

54 SCHEDULING ORDER - Fact Discovery due by 9/27/2013 and all Expert Discovery due by 11/22/2013. Motions due by 12/20/2013. Signed by Magistrate Judge James E. Gates on 5/31/2013. Counsel is reminded to read the entire order for critical dates and deadlines. (Indig, A.) (Entered: 05/31/2013)

06/18/2013

55 MOTION for Extension of Time (to respond to plaintiffs' first requests for production of documents) by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Attachments: # 1 Text of Proposed Order) (Wood, Seth) (Entered: 06/18/2013)

06/18/2013

56 MOTION for Extension of Time (refiled Motion to include Exhibit A) by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Attachments: # 1 Exhibit A-Plaintiffs' Requests for Production of Documents to Defendants (Set One)) (Wood, Seth) (Entered: 06/18/2013)

06/18/2013

57 RESPONSE to Motion regarding 56 MOTION for Extension of Time (refiled Motion to include Exhibit A), 55 MOTION for Extension of Time (to respond to plaintiffs' first requests for production of documents) filed by Robert Paul Boyd, Thomas Heyer. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit B -- Plaintiffs' First Set of Requests for Production) (Hoffman, Ian) (Entered: 06/18/2013)

06/19/2013

MOTION REFERRED to Magistrate Judge James E. Gates as to 56 MOTION for Extension of Time. (Indig, A.) (Entered: 06/19/2013)

06/19/2013

58 NOTICE by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons regarding 56 MOTION for Extension of Time. (refiled Motion to include Exhibit A) (Notice of Withdrawal of Defendant's Motion For Extension Of Time) (Wood, Seth) (Entered: 06/19/2013)

06/19/2013

59 WITHDRAWAL of Motion by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. regarding 56 MOTION for Extension of Time (refiled Motion to include Exhibit A) filed by Thomas R Kane, Tracy W. Johns, Eric H.

Holder, Jr., Sara M. Revell, United States Bureau of Prisons, Ike Eichenlaub . (Wood, Seth) (Entered: 06/19/2013)

07/09/2013

60 MOTION for Protective Order (Unopposed) by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Attachments: # 1 Text of Proposed Order) (Wood, Seth) (Entered: 07/09/2013)

07/09/2013

MOTION REFERRED to Magistrate Judge James E. Gates as to: 60 MOTION for Protective Order (Unopposed). (Indig, A.) (Entered: 07/09/2013)

07/12/2013

61 MOTION for Protective Order (Unopposed) by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Attachments: # 1 Text of Proposed Order) (Wood, Seth) (Entered: 07/12/2013)

07/12/2013

MOTION REFERRED to Magistrate Judge James E. Gates as to: 61 MOTION for Protective Order (Unopposed). (Indig, A.) (Entered: 07/12/2013)

08/05/2013 62 PROTECTIVE ORDER. Signed by Magistrate Judge James E. Gates on 8/2/2013. (Indig, A.) (Entered: 08/05/2013)

08/05/2013 63 SECOND PROTECTIVE ORDER. Signed by Magistrate Judge James E. Gates on 8/2/2013. (Indig, A.) (Entered: 08/05/2013)

08/26/2013

64 MOTION to Stay Further Proceedings Pending Exhaustion of Administrative Remedies by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Attachments: # 1 Text of Proposed Order) (Wood, Seth) (Entered: 08/26/2013)

08/26/2013

65 Memorandum in Support regarding 64 MOTION to Stay Further Proceedings Pending Exhaustion of Administrative Remedies filed by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Attachments: # 1 Exhibit A Letter to Richard Toscano, # 2 Exhibit B - Letter to Mina Raskin) (Wood, Seth) (Entered: 08/26/2013)

08/26/2013

66 MOTION to Expedite (Unopposed Motion for Expedited Considertaion of Motion to Stay Pending Proceedings) by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Attachments: # 1 Text of Proposed Order) (Wood, Seth) (Entered: 08/26/2013)

08/27/2013

67 ORDER - GRANTING 66 Motion to Expedite. Plaintiffs shall respond to Defendants' motion to stay on or before September 9, 2013. Defendants will not file a reply in support of their motion. Signed by Chief Judge James C. Dever III on 8/26/2013. (Indig, A.) (Entered: 08/27/2013)

09/09/2013

68 RESPONSE in Opposition regarding 64 MOTION to Stay Further Proceedings Pending Exhaustion of Administrative Remedies filed by Robert Paul Boyd, Thomas Heyer. (Attachments: # 1 Exhibit A (Bryant Order on Motion to Dismiss (July 11, 2011)) (Hoffman, Ian) (Entered: 09/09/2013)

09/10/2013

Motion Submitted to Staff Counsel III as to: 64 MOTION to Stay Further Proceedings Pending Exhaustion of Administrative Remedies. (Indig, A.) (Entered: 09/10/2013)

09/16/2013

69 Consent MOTION for Extension of Time to Complete Discovery by Robert Paul Boyd, Thomas Heyer. (Attachments: # 1 Text of Proposed Order) (Hoffman, Ian) (Entered: 09/16/2013)

09/17/2013

Motion Submitted to Staff Counsel III as to: 69 Consent MOTION for Extension of Time to Complete Discovery. (Indig, A.) (Entered: 09/17/2013)

09/23/2013

70 ORDER - DENYING 64 Motion to Stay. GRANTING in PART 69 Motion for Extension of Time to Complete Discovery. Discovery due by 1/24/2014 and Motions due by 2/21/2014. Signed by Chief Judge James C. Dever III on 9/23/2013. Counsel is reminded to read the entire order for critical dates and deadlines. (Indig, A.) (Entered: 09/23/2013)

09/26/2013 71 NOTICE of Appearance by Jennifer D. Dannels on behalf of All Defendants. (Dannels, Jennifer) (Entered: 09/26/2013)

09/26/2013

72 Notice of Substitution of Counsel by R. A. Renfer, Jr on behalf of Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons substituting for Seth M. Wood. (Renfer, R.) (Entered: 09/26/2013)

09/30/2013

73 MOTION to Compel the Production of Documents by Robert Paul Boyd, Thomas Heyer. (Attachments: # 1 Exhibit A (Privilege Log), # 2 Text of Proposed Order) (Hoffman, Ian) (Entered: 09/30/2013)

09/30/2013

74 MOTION to Expedite (Motion for Expedited Consideration of Plaintiffs' Motion to Compel) by Robert Paul Boyd, Thomas Heyer. (Attachments: # 1 Text of Proposed Order) (Hoffman, Ian) (Entered: 09/30/2013)

10/01/2013

Motion Submitted to Staff Counsel III: 74 MOTION to Expedite (Motion for Expedited Consideration of Plaintiffs' Motion to Compel). (McDowell, G.) (Entered: 10/01/2013)

10/02/2013

75 NOTICE of Appearance by Michael D. Bredenberg on behalf of Ike Eichenlaub, Eric H. Holder, Jr., Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Bredenberg, Michael) (Entered: 10/02/2013)

10/02/2013

76 ORDER - GRANTING 74 Motion to Expedite. Defendants shall file a response to the motion to compel on or before October 10, 2013. Plaintiffs shall not file any reply. The court REFERS the motion to compel [D.E. 73] to Magistrate Judge James E. Gates. Signed by Chief Judge James C. Dever III on 10/2/2013. (Indig, A.) (Entered: 10/02/2013)

10/10/2013

77 RESPONSE to Motion regarding 73 MOTION to Compel the Production of Documents filed by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Bredenberg, Michael) (Entered: 10/10/2013)

10/10/2013

MOTION REFERRED to US Magistrate Judge James E. Gates regarding 73 MOTION to Compel the Production of Documents. (Blankenship, T.) (Entered: 10/10/2013)

10/22/2013 78 NOTICE of Appearance for non-district by Sean P Hennessy on behalf of all Plaintiffs. (Hennessy, Sean) (Entered: 10/22/2013)

10/29/2013 79 NOTICE of Appearance by Robert J Dodson on behalf of All Defendants. (Dodson, Robert) (Entered: 10/29/2013)

11/25/2013

80 MOTION for Extension of Time for Defendants to respond to Plaintiffs' Second Request for Interrogatories and Second Request for Production of Documents by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Attachments: # 1 Text of Proposed Order) (Dannels, Jennifer) (Entered: 11/25/2013)

11/26/2013

81 NOTICE of Appearance by G. Norman Acker, III on behalf of Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons (Acker, G.) (Entered: 11/26/2013)

11/27/2013

82 RESPONSE to Motion regarding 80 MOTION for Extension of Time for Defendants to respond to Plaintiffs' Second Request for Interrogatories and Second Request for Production of Documents and Cross-Motion for Leave to Complete Two Depositions Regarding Videophones filed by Robert Paul Boyd, Thomas Heyer. (Attachments: # 1 Exhibit A (Rule

30(b)(6) Notice), # 2 Exhibit B (Subpoena to VDOC), # 3 Exhibit C (Subpoena to VDOC -- Clarke), # 4 Exhibit D (Subpoena to VDOC -Marano), # 5 Text of Proposed Order) (Hoffman, Ian) (Entered: 11/27/2013)

11/27/2013

83 Cross MOTION for Extension of Time to CompleteTwo Depositions Regarding Videophones by Robert Paul Boyd, Thomas Heyer. (Attachments: # 1 Exhibit A (Rule 30(b)(6) Notice), # 2 Exhibit B (Subpoena to VDOC), # 3 Exhibit C (Subpoena to VDOC -- Clarke), # 4 Exhibit D (Subpoena to VDOC -- Marano), # 5 Text of Proposed Order) (Hoffman, Ian) (Entered: 11/27/2013)

11/27/2013

84 RESPONSE in Opposition regarding 73 MOTION to Compel the Production of Documents Second filed by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Attachments: # 1 Exhibit Privilege Log) (Bredenberg, Michael) (Entered: 11/27/2013)

11/27/2013

85 Declaration regarding 84 Response in Opposition to Motion, to compel the production of documents by Sara M. Revell, United States Bureau of Prisons, Tracy W. Johns, Thomas R Kane, Eric H. Holder, Jr, Ike Eichenlaub filed by Sara M. Revell, United States Bureau of Prisons, Tracy W. Johns, Thomas R Kane, Eric H. Holder, Jr, Ike Eichenlaub. (Bredenberg, Michael) (Entered: 11/27/2013)

11/27/2013

86 NOTICE of Appearance by Matthew Lee Fesak on behalf of Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Fesak, Matthew) (Entered: 11/27/2013)

11/27/2013

87 MOTION for Protective Order by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Fesak, Matthew) (Entered: 11/27/2013)

11/27/2013

88 Memorandum in Support regarding 87 MOTION for Protective Order filed by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Attachments: # 1 Exhibit Subpoenas Served on the Virginia Department of Corrections) (Fesak, Matthew) (Entered: 11/27/2013)

11/27/2013

89 Proposed Order regarding 87 MOTION for Protective Order filed by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Fesak, Matthew) (Entered: 11/27/2013)

12/11/2013 90 RESPONSE to Motion regarding 83 Cross MOTION for Extension of Time to CompleteTwo Depositions Regarding Videophones filed by Ike

Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Dannels, Jennifer) (Entered: 12/11/2013)

12/11/2013

Motion Submitted to Staff Counsel III regarding 83 Cross MOTION for Extension of Time to Complete Two Depositions Regarding Videophones. (Blankenship, T.) (Entered: 12/11/2013)

12/12/2013

Motion No Longer Submitted to Staff Counsel III regarding 83 Cross MOTION for Extension of Time to CompleteTwo Depositions Regarding Videophones. (Blankenship, T.) (Entered: 12/12/2013)

12/12/2013

MOTION REFERRED to US Magistrate Judge James E. Gates regarding 83 Cross MOTION for Extension of Time to Complete Two Depositions Regarding Videophones. (Blankenship, T.) (Entered: 12/12/2013)

12/16/2013

91 RESPONSE in Opposition regarding 87 MOTION for Protective Order filed by Robert Paul Boyd, Thomas Heyer. (Attachments: # 1 Exhibit A - Oct. 31, 2013 VDOC subpoenas, # 2 Exhibit B - Nov. 18, 2013 VDOC subpoenas to B. Marano, # 3 Exhibit C - Nov. 18, 2013 VDOC subpoenas to H. Clarke, # 4 Exhibit D - Interrogatory Responses) (Hoffman, Ian) (Entered: 12/16/2013)

12/17/2013

MOTIONS REFERRED to Magistrate Judge James E. Gates as to: 80 MOTION for Extension of Time for Defendants to respond to Plaintiffs' Second Request for Interrogatories and Second Request for Production of Documents and 87 MOTION for Protective Order. (Indig, A.) (Entered: 12/17/2013)

12/19/2013

92 ORDER - GRANTING 80 Motion for Extension of Time and GRANTING 83 Motion for Extension of Time. Defendants shall respond to plaintiffs' second set of interrogatories and second request for production of documents by 25 December 2013. Plaintiffs shall be permitted to conduct the deposition of Bureau of Prisons witness Todd Craig no later than 24 January 2014. Signed by Magistrate Judge James E. Gates on 12/19/2013. (Indig, A.) (Entered: 12/19/2013)

12/31/2013

93 RESPONSE in Opposition regarding 87 MOTION for Protective Order Supplemental Opposition to Defendants' Motion for Protective Order Citing Newly Produced Evidence filed by Robert Paul Boyd, Thomas Heyer. (Attachments: # 1 Exhibit A - BOP Report) (Hoffman, Ian) (Entered: 12/31/2013)

01/24/2014

94 JOINT MOTION for Extension of Time to Complete Discovery by Robert Paul Boyd, Ike Eichenlaub, Thomas Heyer, Eric H. Holder, Jr., Tracy W. Johns, Thomas R Kane, Sara M. Revell, and United States

Bureau of Prisons. (Attachment: # 1 Text of Proposed Order) (Motion filed at Raleigh Intake due to problems with external access to CM/ECF) (McDowell, G.) (Entered: 01/27/2014)

01/27/2014

Motion referred to US Magistrate Judge James E. Gates: 94 MOTION for Extension of Time to Complete Discovery. (McDowell, G.) (Entered: 01/27/2014)

01/28/2014

95 ORDER - GRANTING 94 Motion for Extension of Time to Complete Discovery. Expert discovery shall be completed by 10 March 2014, all potentially dispositive motions shall be filed by 7 April 2014. Signed by Magistrate Judge James E. Gates on 1/27/2014. (Indig, A.) (Entered: 01/28/2014)

02/25/2014

96 STIPULATION Joint by Ike Eichenlaub, Eric H. Holder, Jr., Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Bredenberg, Michael) (Entered: 02/25/2014)

02/25/2014

97 STIPULATION Joint - Corrected by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Bredenberg, Michael) (Entered: 02/25/2014)

02/27/2014

98 ORDER - the court APPROVES and ADOPTS the stipulation. The physical examinations of plaintiffs shall proceed on the terms set out in the stipulation. Signed by Magistrate Judge James E. Gates on 2/27/2014. (Attachment: # 1 Joint Stipulation) (Indig, A.) (Entered: 02/27/2014)

04/02/2014

99 Joint MOTION for Extension of Time to File Dispositive Motions by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Attachments: # 1 Text of Proposed Order) (Dannels, Jennifer) (Entered: 04/02/2014)

04/03/2014

MOTION REFERRED to Magistrate Judge James E. Gates as to: 99 Joint MOTION for Extension of Time to File Dispositive Motions. (Indig, A.) (Entered: 04/03/2014)

04/14/2014 100 ORDER - GRANTING 99 Motion for Extension of Time. All potentially dispositive motions shall be filed by 6 June 2014. Signed by Magistrate Judge James E. Gates on 4/14/2014. (Indig, A.) (Entered: 04/14/2014)

05/13/2014

101 Joint MOTION for Extension of Time to File Second Joint Motion for Extension to file Dispositive Motions by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Attachments: # 1 Text of Proposed Order) (Dannels, Jennifer) (Entered: 05/13/2014)

05/15/2014

102 ORDER - GRANTING 101 Motion for Extension of Time. All potentially dispositive motions shall be filed by 21 August 2014. Signed by Chief Judge James C. Dever III on 5/15/2014. (Indig, A.) (Entered: 05/15/2014)

06/06/2014

103 Joint MOTION for Protective Order Joint Motion of All Parties to Modify Protective Orders by Robert Paul Boyd, Thomas Heyer. (Attachments: # 1 Text of Proposed Order Ex. A -- Proposed Modified Protective Order) (Hoffman, Ian) (Entered: 06/06/2014)

06/06/2014

MOTION REFERRED to United States Magistrate Judge James E. Gates regarding 103 Joint MOTION for Protective Order Joint Motion of All Parties to Modify Protective Orders. (Blankenship, T.) (Entered: 06/06/2014)

06/17/2014 104 MODIFIED PROTECTIVE ORDER. Signed by US Magistrate Judge James E. Gates on 6/16/2014. (McDowell, G.) (Entered: 06/17/2014)

06/17/2014

105 ORDER - defendants' motion (D.E. 87) for a protective order is DENIED. The deposition and document production sought by the subpoenas issued by plaintiffs to the VDOC shall occur as promptly as possible on a date not later than 15 July 2014 designated by plaintiffs after conferring with and providing reasonable notice to defendants and the VDOC. Signed by US Magistrate Judge James E. Gates on 6/16/2014. (McDowell, G.) (Entered: 06/17/2014)

07/31/2014

106 MOTION for Leave to File Motion for Leave to Amend to Reinstate Rehabilitation Act Claim by Robert Paul Boyd, Thomas Heyer. (Attachments: # 1 Exhibit A - Correspondence from Ian S. Hoffman to Richard Toscano dated 7/15/2013 regarding complaint. # 2 Exhibit B Correspondence from Mina Raskin to Ian S. Hoffman dated 8/20/2013 regarding complaint. # 3 Exhibit C - Fax received 6/17/2014 from Debra Lynn Rosario, Secretary to the Honorable Christopher B. McNeil regarding the Recommended Decision of the Administrative Law Judge. # 4 Exhibit D - Correspondence from Ian S. Hoffman to Mark L. Gross dated 7/2/2014 regarding Complainants Exceptions to the Recommended Decision of the Administrative Law Judge (dated June 17, 2014). # 5 Exhibit E - # 6 Text of Proposed Order) (Hoffman, Ian) Modified on 8/1/2014 to add naming conventions. (Fogle, L.) (Entered: 07/31/2014)

07/31/2014

107 MOTION for Extension of Time to File Dispositive Motions by Robert Paul Boyd, Thomas Heyer. (Attachments: # 1 Exhibit A - Email from Jennifer Dannels to Tivey Clark dated 5/15/2014 regarding Heyer v. United States Bureau of Prisons, 5:11-CT-3118-D. # 2 Text of Proposed Order) (Hoffman, Ian) Modified on 8/1/2014 to add naming conventions. (Fogle, L.) (Entered: 07/31/2014)

08/01/2014

NOTICE OF CORRECTION regarding: 106 Motion for Leave to File. Clerk's Office has corrected the naming conventions for the exhibits in the entry. For future reference, pursuant to Section L (2)(b) of the Court's Electronic Policy and Procedure Manual, counsel should use the proper naming conventions to identify each exhibit. It is not necessary to re-file. (Fogle, L.) (Entered: 08/01/2014)

08/01/2014

MOTION REFERRED to United States Magistrate Judge Robert B. Jones, Jr. regarding 107 MOTION for Extension of Time to File Dispositive Motions. (Blankenship, T.) (Entered: 08/01/2014)

08/01/2014

Motion No Longer Referred to United States Magistrate Judge Robert B. Jones, Jr. regarding 107 MOTION for Extension of Time to File Dispositive Motions. (Blankenship, T.) (Entered: 08/01/2014)

08/13/2014

108 RESPONSE in Opposition regarding 106 MOTION for Leave to File Motion for Leave to Amend to Reinstate Rehabilitation Act Claim filed by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Attachments: # 1 Exhibit Recommended Decision of the Administrative Law Judge) (Bredenberg, Michael) (Entered: 08/13/2014)

08/13/2014

109 RESPONSE in Opposition regarding 107 MOTION for Extension of Time to File Dispositive Motions filed by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Bredenberg, Michael) (Entered: 08/13/2014)

08/21/2014

110 MOTION for Leave to File Excess Pages by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Attachments: # 1 Text of Proposed Order) (Dannels, Jennifer) (Entered: 08/21/2014)

08/21/2014

111 Second MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM or in the alternative, MOTION for Summary Judgment by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Dannels, Jennifer) (Entered: 08/21/2014)

08/21/2014

112 Memorandum in Support regarding 111 Second MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM or in the alternative MOTION for Summary Judgment filed by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Attachments: # 1 Exhibit 1 - Index of Exhibits, # 2 Exhibit 2 Declaration of Douglass Willis, # 3 Exhibit 3 - Excerpts from the Deposition Transcript of Robert Boyd, # 4 Exhibit 4 - Excerpts from the Deposition Transcript of Thomas Heyer, # 5 Exhibit 5 - Declaration of Vikki Evans, # 6 Exhibit 6 - Declaration of Dr. Melanie Malterer,

# 7 Exhibit 7 - Excerpts from the Deposition Transcript of Dr. Andres Hernandez, # 8 Exhibit 8 - Declaration of Stanislaw Sielicki, # 9 Exhibit 9 - Exerpts from the Deposition Transcript of Nicole Weaver, # 10 Exhibit 10 - Excerpts from the Deposition Transcript of Justin Andrews, # 11 Exhibit 11 - Declaration of Todd Craig, # 12 Exhibit 12 Declaration of Chaplain Lynn McLaughlin, # 13 Exhibit 13 - Excerpts from the Deposition Transcript of Amy Jacobs) (Dannels, Jennifer) (Entered: 08/21/2014)

08/21/2014

113 REPLY to Response to Motion regarding 106 MOTION for Leave to File Motion for Leave to Amend to Reinstate Rehabilitation Act Claim filed by Robert Paul Boyd, Thomas Heyer. (Hennessy, Sean) (Entered: 08/21/2014)

08/21/2014 114 REPLY to Response to Motion regarding 107 MOTION for Extension of Time to File Dispositive Motions filed by Robert Paul Boyd, Thomas Heyer. (Hennessy, Sean) (Entered: 08/21/2014)

08/21/2014 115 NOTICE by Robert Paul Boyd, Thomas Heyer of Reservation of Rights to File Summary Judgment Motion. (Hennessy, Sean) (Entered: 08/21/2014)

08/22/2014

Motions Submitted to Chief Judge James C. Dever III: 107 MOTION for Extension of Time to File Dispositive Motions and 106 MOTION for Leave to File Motion for Leave to Amend to Reinstate Rehabilitation Act Claim. (McDowell, G.) (Entered: 08/22/2014)

09/09/2014

116 MOTION for Extension of Time to File Response/Reply as to 111 Second MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM or in the alternative MOTION for Summary Judgment by Robert Paul Boyd, Thomas Heyer. (Attachments: # 1 Text of Proposed Order) (Hoffman, Ian) (Entered: 09/09/2014)

09/10/2014

117 RESPONSE to Motion regarding 116 MOTION for Extension of Time to File Response/Reply as to 111 Second MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM or in the alternative MOTION for Summary Judgment filed by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Dannels, Jennifer) (Entered: 09/10/2014)

09/11/2014

Motion Submitted to United States Chief Judge James C. Dever, III regarding 116 MOTION for Extension of Time to File Response as to 111 Second MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM or in the alternative MOTION for Summary Judgment . (Blankenship, T.) (Entered: 09/11/2014)

09/12/2014 118 ORDER - that plaintiffs' motion (D.E. 73) to compel is DENIED. Signed by US Magistrate Judge James E. Gates on 9/12/2014. (McDowell, G.) (Entered: 09/12/2014)

09/15/2014

119 RESPONSE in Opposition regarding 111 Second MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM or in the alternative MOTION for Summary Judgment , conditionally filed by Robert Paul Boyd, Thomas Heyer. (Hoffman, Ian) (Entered: 09/15/2014)

09/19/2014

120 ORDER - The court DENIES plaintiffs' motion to reinstate their Rehabilitation Act claim [D.E. 106]. The court GRANTS plaintiffs' motions for extension of time [D.E. 107, 116] and defendants' motion to file a brief which exceeds the page limitation prescribed in Local Civil Ru1e 7.2( e) [D.E. 110]. Plaintiff's response to motion for summary judgment is due by 10/14/2014. Plaintiff's motions deadline is 10/28/2014. Defendant's shall have 21 days thereafter to file response. Signed by Chief Judge James C. Dever, III on 9/19/2014. (Castania, M.) (Entered: 09/19/2014)

10/14/2014 121 MOTION for Leave to File Excess Pages by Robert Paul Boyd, Thomas Heyer. (Attachments: # 1 Text of Proposed Order Proposed Order) (Hoffman, Ian) (Entered: 10/14/2014)

10/14/2014

122 Exhibit A - SEALED Document: (Selected Participants Only)by Plaintiffs (available to: Plaintiffs Robert Paul Boyd, Thomas Heyer, Defendants Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons). (Attachments: # 1 Exhibit C - Proposed Sealed Document, # 2 Exhibit D - Proposed Sealed Document, # 3 Exhibit E - Proposed Sealed Document, # 4Exhibit FF - Proposed Sealed Document, # 5 Exhibit F - Proposed Sealed Document, # 6 Exhibit G - Proposed Sealed Document, # 7 Exhibit GG Proposed Sealed Document, # 8 Exhibit H - Proposed Sealed Document, # 9 Exhibit T - Proposed Sealed Document, # 10 Exhibit W - Proposed Sealed Document, # 11 Exhibit X - Proposed Sealed Document, # 12 Exhibit Y - Proposed Sealed Document, # 13 Exhibit Z - Proposed Sealed Document) (Hoffman, Ian) Modified on 3/26/2015 to enter the corresponding exhibit letters (McDowell, G.) (Entered: 10/14/2014)

10/14/2014

123 MOTION to Seal Document 122 PROPOSED SEALED Document by Robert Paul Boyd, Thomas Heyer. (Attachments: # 1 Memorandum, # 2 Text of Proposed Order Proposed Order) (Hoffman, Ian) (Entered: 10/14/2014)

10/14/2014

124 RESPONSE in Opposition regarding 111 Second MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM or in the alternative MOTION for Summary Judgment filed by Robert Paul Boyd, Thomas Heyer. (Attachments: # 1 Exhibit A (filed under seal),

# 2 Exhibit B, # 3 Exhibit C (filed under seal), # 4 Exhibit D (filed under seal), # 5 Exhibit E (filed under seal), # 6 Exhibit F (filed under seal), # 7 Exhibit G (filed under seal), # 8 Exhibit H (filed under seal), # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T (filed under seal), # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W (filed under seal), # 24 Exhibit X (filed under seal), # 25 Exhibit Y (filed under seal), # 26 Exhibit Z (filed under seal), # 27 Exhibit AA, # 28 Exhibit BB, # 29 Exhibit CC, # 30 Exhibit EE, # 31 Exhibit FF (filed under seal), # 32 Exhibit GG (filed under seal)) (Pearce, Carolyn) (Entered: 10/14/2014)

10/15/2014

125 AMENDED DOCUMENT by Robert Paul Boyd, Thomas Heyer. Amendment to 124 Response in Opposition to Motionnow attaching Exhibit DD, which was inadvertently omitted from the 10/14/14 filing. (Pearce, Carolyn) (Entered: 10/15/2014)

10/28/2014

126 AMENDED DOCUMENT by Robert Paul Boyd, Thomas Heyer. Amendment to 124 Response in Opposition to Motion now attaching Exhibit HH, which was inadvertently omitted from the 10/14/14 filing. (Pearce, Carolyn) (Entered: 10/28/2014)

10/28/2014 127 MOTION for Summary Judgment as to Counts II, IV, VI, and VIII by Robert Paul Boyd, Thomas Heyer. (Hoffman, Ian) (Entered: 10/28/2014)

10/28/2014

128 Memorandum in Support regarding 127 MOTION for Summary Judgment as to Counts II, IV, VI, and VIII filed by Robert Paul Boyd, Thomas Heyer. (Attachments: # 1 Exhibit II (Boyd Deposition Excerpt), # 2 Exhibit JJ (Steinour Deposition Excerpt), # 3 Exhibit KK (PDS Note for CTP Program), # 4 Exhibit LL (Hernandez Deposition Excerpt), # 5 Exhibit MM (Baker Deposition Excerpt), # 6 Exhibit NN (Marano VDOC Deposition), # 7 Exhibit OO (Craig Deposition Excerpt), # 8 Exhibit PP (Andrews Deposition Excerpt)) (Hoffman, Ian) (Entered: 10/28/2014)

11/18/2014

129 MOTION for Leave to File Excess Pages by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Attachments: # 1 Text of Proposed Order) (Dannels, Jennifer) (Entered: 11/18/2014)

11/18/2014

130 RESPONSE in Opposition regarding 127 MOTION for Summary Judgment as to Counts II, IV, VI, and VIII filed by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Attachments: # 1 Defendants' Exhibit 14 Revised Index of Exhibits, # 2 Defendants' Exhibit 15 - Excerpts from the Deposition Transcript of Karen Steinour, # 3 Defendants' Exhibit 16 -

Additional Excerpts from the Deposition Transcript of Robert Boyd, # 4 Defendants' Exhibit 17 - Additional Excerpts from the Deposition Transcript of Andres Hernandez, # 5 Defendants' Exhibit 18 Supplemental Declaration of Dr. Melanie Malterer, # 6 Defendants' Exhibit 19 - Order for Supplies or Services with Fluent Language Solutions, Inc., # 7 Defendants' Exhibit 20 - Federal Bureau of Prisons Psychology Data System, Robert Boyd, entry dated January 13, 2014, # 8 Defendants' Exhibit 21 - Excerpts from the Deposition of Tracy Johns, # 9 Defendants' Exhibit 22 - Additional Excerpts from the Deposition Transcript of Justin Andrews, # 10 Defendants' Exhibit 23 Additional Excerpts from the Deposition Transcript of Amy Jacobs, # 11 Defendants' Exhibit 24 - Bureau of Prisons Health Services Clinical Encounters, Robert Boyd, entries dated June 6, 2014 and August 8, 2014, # 12 Defendants' Exhibit 25 - Additional Excerpts from the Deposition Transcript of Thomas Heyer, # 13 Defendants' Exhibit 26 - Additional Excerpts from the Deposition Transcript of Nicole Weaver, # 14 Defendants' Exhibit 27 - Excerpts from the Deposition Transcript of Todd Craig) (Dannels, Jennifer) (Entered: 11/18/2014)

11/21/2014

132 MOTION to Seal Document 130 Response in Opposition to Motion, 131 Notice-(other), by Ike Eichenlaub, Eric H. Holder, Jr., Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Attachments: # 1 Text of Proposed Order) (Dannels, Jennifer) (Entered: 11/21/2014)

12/02/2014

Motions Submitted to Chief Judge James C. Dever III: 111 Second MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM or in the alternative MOTION for Summary Judgment, 123 MOTION to Seal Document 122 PROPOSED SEALED Document, 132 MOTION to Seal Document 130 Response in Opposition to Motion, 131 Notice, 127 MOTION for Summary Judgment as to Counts II, IV, VI, and VIII, 129 MOTION for Leave to File Excess Pages and 121 MOTION for Leave to File Excess Pages. (Indig, A.) (Entered: 12/02/2014)

12/04/2014

133 RESPONSE in Support regarding 132 MOTION to Seal Document 130 Response in Opposition to Motion, 131 Notice(other), filed by Robert Paul Boyd, Thomas Heyer. (Hennessy, Sean) (Entered: 12/04/2014)

01/06/2015

134 SEALED MOTION (Selected Participants Only)by Defendants (available to: Plaintiffs Robert Paul Boyd, Thomas Heyer, Defendants Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons). (Attachments: # 1 Report by Doctor Lara Gray at Area Hearing Center, dated March 6, 2014, # 2 Commitment and Treatment Program Diagnostic Report dated

October 16, 2014, # 3 Text of Proposed Order) (Dannels, Jennifer) Modified on 5/30/2017 to remove the word "proposed". (Indig, A.) (Entered: 01/06/2015)

01/06/2015

135 MOTION to Seal Document 134 PROPOSED SEALED MOTION (Selected Participants Only)by Defendants (available to: Plaintiffs Robert Paul Boyd, Thomas Heyer, Defendants Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of P by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Attachments: # 1 Text of Proposed Order) (Dannels, Jennifer) (Entered: 01/06/2015)

01/23/2015

136 RESPONSE in Support regarding 135 MOTION to Seal Document 134 PROPOSED SEALED MOTION (Selected Participants Only)by Defendants (available to: Plaintiffs Robert Paul Boyd, Thomas Heyer, Defendants Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. filed by Robert Paul Boyd, Thomas Heyer. (Hennessy, Sean) (Entered: 01/23/2015)

01/23/2015

137 SEALED RESPONSE (Selected Participants Only)by Plaintiffs (available to: Plaintiffs Robert Paul Boyd, Thomas Heyer, Defendants Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons) regarding 134 PROPOSED SEALED MOTION (Selected Participants Only)by Defendants (available to: Plaintiffs Robert Paul Boyd, Thomas Heyer, Defendants Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of P. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (Hoffman, Ian) Modified on 5/30/2017 to remove the word "proposed". (Indig, A.) Modified on 5/30/2017 to remove the word "proposed". (Indig, A.) (Entered: 01/23/2015)

01/23/2015

138 MOTION to Seal Document 137 PROPOSED SEALED Response, by Robert Paul Boyd, Thomas Heyer. (Attachments: # 1 Memorandum in Support of Motion to Seal, # 2 Text of Proposed Order) (Hoffman, Ian) (Entered: 01/23/2015)

01/26/2015

Motions Submitted to Chief US District Judge James C. Dever III: 138 MOTION to Seal Document 137 PROPOSED SEALED Response, and 135 MOTION to Seal Document 134 PROPOSED SEALED MOTION. (McDowell, G.) (Entered: 01/26/2015)

01/26/2015

Motion No Longer Submitted to Chief US District Judge James C. Dever III: 138 MOTION to Seal Document 137 PROPOSED SEALED Response. (McDowell, G.) (Entered: 01/26/2015)

02/06/2015

139 SEALED REPLY (Selected Participants Only) by United States Bureau of Prisons et al (available to: Plaintiffs Robert Paul Boyd, Thomas Heyer, Defendants Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons) regarding 137 PROPOSED SEALED Response. (Dannels, Jennifer) Modified on 5/30/2017 to remove the word "proposed". (Indig, A.) (Entered: 02/06/2015)

02/06/2015

140 MOTION to Seal Document 139 PROPOSED SEALED Reply, by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Attachments: # 1 Text of Proposed Order) (Dannels, Jennifer) (Entered: 02/06/2015)

02/09/2015 141 RESPONSE in Support regarding 140 MOTION to Seal Document 139 PROPOSED SEALED Reply, filed by Robert Paul Boyd, Thomas Heyer. (Hennessy, Sean) (Entered: 02/09/2015)

03/26/2015

NOTICE OF CORRECTION regarding: 122 PROPOSED SEALED Document. Exhibit letters have entered next to each proposed sealed document for identification purposes. Pursuant to Section L(2)(b) Attachments and exhibits must be identified with a clear and complete description of the document and (c) when filing a document with more than five (5) exhibits or attachments, the first attached exhibit or attachment must be an index of all of the subsequently attached documents. (McDowell, G.) (Entered: 03/26/2015)

03/31/2015

142 ORDER - the court GRANTS IN PART defendants' motion for summary judgment [D.E. 111 ], and DENIES plaintiffs' motion for partial summary judgment [D.E. 127]. The court DISMISSES as moot counts nine and ten of the amended complaint. The court DENIES defendants' motion to conduct additional testing on Boyd [D.E. 134]. The court GRANTS the parties' motions for leave to file memoranda in excess of the page limit prescribed by Local Civil Ru1e 7.2 [D.E. 121, 129], and GRANTS IN PART AND DENIES IN PART the parties' motions to seal [D.E. 123, 132, 135, 138, 140]. This action is DISMISSED. The clerk shall unseal defendants' response in opposition to plaintiffs' motion for partial summary judgment [D.E. 130]. Signed by Chief US District Judge James C. Dever III on 3/31/2015. (McDowell, G.) (Entered: 03/31/2015)

03/31/2015

143 CLERK'S JUDGMENT - that defendants' motion for summary judgment is grantedin part and this action is hereby dismissed. Signed by Julie Richards Johnston, Clerk of Court on 3/31/2015. (McDowell, G.) (Entered: 03/31/2015)

05/27/2015 144 NOTICE OF APPEAL as to 120 Order on Motion for Leave to File, Order on Motion for Extension of Time to File, Order on Motion for Leave to File Excess Pages, Order on Motion for Extension of Time to

File Response/Reply, 118 Order on Motion to Compel, 46 Order on Motion to Dismiss, Order on Motion for Summary Judgment, Order on Motion for Miscellaneous Relief, 143 Clerk's Judgment, 142 Order on Motion for Summary Judgment, Order on Motion for Leave to File Excess Pages, Order on Motion to Seal Document, Order on PROPOSED SEALED Motion by Robert Paul Boyd, Thomas Heyer. Filing fee $ 505, receipt number 0417-3304836. (Hoffman, Ian) (Entered: 05/27/2015)
05/28/2015 145 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals regarding 144 Notice of Appeal. (McDowell, G.) (Entered: 05/28/2015)
05/28/2015 146 US Court of Appeals Case Number 15-6826 (RJ Warren) for 144 Notice of Appeal filed by Thomas Heyer and Robert Paul Boyd. (Indig, A.) (Entered: 05/28/2015)
11/05/2015 147 Notice filed by Robert Paul Boyd . (Hoffman, Ian) (Entered: 11/05/2015)

11/05/2015 148 MOTION to Dismiss Motion for Voluntary Dismissal filed by Robert Paul Boyd. (Hoffman, Ian) (Entered: 11/05/2015)

11/19/2015

149 RESPONSE regarding 148 MOTION to Dismiss Motion for Voluntary Dismissal filed by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Attachments: # 1 Text of Proposed Order) (Dannels, Jennifer) (Entered: 11/19/2015)

11/20/2015

150 MOTION for Extension of Time to File Response/Reply as to 148 MOTION to Dismiss Motion for Voluntary Dismissal filed by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Attachments: # 1 Text of Proposed Order) (Dannels, Jennifer) (Entered: 11/20/2015)

11/20/2015

Motion Submitted to Chief Judge James C. Dever III: regarding 150 MOTION for Extension of Time to File Response as to 148 MOTION to Dismiss Motion for Voluntary Dismissal. (Indig, A.) (Entered: 11/20/2015)

01/04/2016

151 ORDER - the court DISMISSES plaintiff Boyd's motion for a voluntary dismissal [D.E. 148] and DENIES AS MOOT defendants' motion for an extension of time [D.E. 150]. Signed by Chief Judge James C. Dever III on 1/4/2016. (Indig, A.) (Entered: 01/04/2016)

02/23/2017 152 Published Opinion from Fourth Circuit Court of Appeals. AFFIRMED IN PART, VACATED IN PART, AND REMANDED. (Castania, M.) (Entered: 02/23/2017)

02/23/2017 153 US Court of Appeals Judgment as to 144 Notice of Appeal filed by Thomas Heyer, Robert Paul Boyd. (Castania, M.) (Entered: 02/23/2017)

04/17/2017 154 MANDATE of US Court of Appeals (certified copy) as to 144 Notice of Appeal filed by Thomas Heyer, Robert Paul Boyd. (Castania, M.) (Entered: 04/17/2017)

04/18/2017

Case Submitted to Chief Judge James C. Dever III regarding opinion from the Court of Appeals. (Indig, A.) (Entered: 04/18/2017)

04/19/2017

155 ORDER - The court DIRECTS each party to file a response to this order on or before May 19, 2017, stating whether a court-hosted settlement conference would help to resolve this case. The parties shall also confer and jointly propose three dates for a bench trial between September 11 and November 6, 2017. Signed by Chief Judge James C. Dever III on 4/19/2017. (Indig, A.) (Entered: 04/19/2017)

05/18/2017

156 RESPONSE by Plaintiff Thomas Heyer regarding 155 Order, Set Deadlines,, Joint Response of Plaintiff and Defendants to Court's Order Regarding Settlement Conference and Trial Dates (Hoffman, Ian) (Entered: 05/18/2017)

05/18/2017

157 ORDER - The court REFERS this case to Magistrate Judge James E. Gates for a court-hosted settlement conference. The bench trial in this case is set for Monday, November 6, 2017. The court will issue a case management order at a later date. Signed by Chief Judge James C. Dever, III on 5/18/2017. Copy sent to the chambers of US Magistrate Judge James E. Gates. (Powers, S.) (Entered: 05/18/2017)

05/23/2017 158 Notice of Substitution of Counsel filed by Philip J. Fornaci on behalf of Thomas Heyer substituting for Deborah Golden. (Fornaci, Philip) (Entered: 05/23/2017)

05/26/2017

159 ORDER - No later than 9 June 2017, the parties shall confer and determine three dates before 7 July 2017 that are mutually available for the settlement conference. Counsel for plaintiff shall file a notice setting out the three proposed dates for the settlement conference within one day after the conference provided for in the preceding paragraph. Signed by Magistrate Judge James E. Gates on 5/26/2017. (Indig, A.) (Entered: 05/26/2017)

06/08/2017 160 Notice filed by Thomas Heyer regarding 159 Order, Set Deadlines,, Notice Regarding Proposed Settlement Conference Dates. (Hoffman, Ian) (Entered: 06/08/2017)

06/08/2017

Notice Regarding Proposed Settlement Conference Dates Submitted to Magistrate Judge James E. Gates. (Indig, A.) (Entered: 06/08/2017)

06/20/2017

161 Order Setting Hearing - Settlement Conference set for 6/29/2017 at 11:00 AM in Raleigh - 6th Floor Courtroom before Magistrate Judge James E. Gates. Signed by Magistrate Judge James E. Gates on 6/19/2017. (Indig, A.) (Entered: 06/20/2017)

06/20/2017 162 Notice of Writ to Produce Thomas Heyer on 6/29/2017 in Raleigh. (Bredenberg, Michael) (Entered: 06/20/2017)

06/22/2017

163 MOTION to Excuse Attendance of Local Counsel at Court-Hosted Settlement Conference (Unopposed) filed by Thomas Heyer. (Attachments: # 1 Text of Proposed Order) (Hoffman, Ian) (Entered: 06/22/2017)

06/23/2017

Motion Referred to US Magistrate Judge James E. Gates regarding: 163 MOTION to Excuse Attendance of Local Counsel at Court-Hosted Settlement Conference (Unopposed). (Indig, A.) (Entered: 06/23/2017)

06/26/2017

164 ORDER - GRANTING 163 Motion. For good cause shown, the motion is ALLOWED and the in-person attendance of Mr. Riemann is excused. Signed by Magistrate Judge James E. Gates on 6/26/2017. (Indig, A.) (Entered: 06/26/2017)

06/29/2017

165 Minute Entry for proceedings held before Magistrate Judge James E. Gates in Raleigh.Settlement Conference held on 6/29/2017. Parties present with counsel. Interpreters (sign language) affirmed. The court makes opening remarks. The parties break for settlement discussions. At 5:15 p.m. the court announced the parties have reached an impasse in this matter. (Court Reporter FTR) (Horton, B.) (Entered: 06/30/2017)

09/29/2017

166 Notice filed by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons (Local Rule 5.2 (d) Withdrawal of Prior Counsel). (Dodson, Robert) (Entered: 09/29/2017)

09/29/2017

167 MOTION to Dismiss for Lack of Jurisdiction or, in the alternative, MOTION for Judgment on the Pleadings filed by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Dodson, Robert) (Entered: 09/29/2017)

09/29/2017

168 Memorandum in Support regarding 167 MOTION to Dismiss for Lack of Jurisdiction or, in the alternative MOTION for Judgment on the Pleadings filed by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Dodson, Robert) (Entered: 09/29/2017)

10/17/2017 169 Notice of Writ to Produce Thomas Heyer on 11/6/2017 in Raleigh. (Dodson, Robert) (Entered: 10/17/2017)

10/20/2017 170 RESPONSE in Opposition regarding 167 MOTION to Dismiss for Lack of Jurisdiction or, in the alternative MOTION for Judgment on the Pleadings filed by Thomas Heyer. (Hoffman, Ian) (Entered: 10/20/2017)

10/23/2017

Motion Submitted to Chief Judge James C. Dever III regarding 167 MOTION to Dismiss for Lack of Jurisdiction or, in the alternative MOTION for Judgment on the Pleadings . (Indig, A.) (Entered: 10/23/2017)

10/24/2017 171 Notice of Appearance for non-district by Snayha M. Nath on behalf of All Plaintiffs. (Nath, Snayha) (Entered: 10/24/2017)

10/25/2017 172 Notice of Appearance filed by Christina A. Kelley on behalf of All Defendants. (Kelley, Christina) (Entered: 10/25/2017)

10/25/2017 173 Notice of Appearance for non-district by Tara L. Williamson on behalf of All Plaintiffs. (Williamson, Tara) (Entered: 10/25/2017)

10/26/2017

174 ORDER - The parties shall file a proposed joint pretrial order no later than November 1, 2017. The court will conduct a final pretrial conference beginning at 9:00 a.m. on November 6, 2017, in courtroom 1 of the Terry Sanford Federal Building, 310 New Bern Avenue, Raleigh, North Carolina 27601. The bench trial will commence immediately after the final pretrial conference. Signed by Chief Judge James C. Dever III on 10/25/2017. (Indig, A.) (Entered: 10/26/2017)

10/26/2017 175 Courtroom Technology Certification of Training by Thomas Heyer (Hoffman, Ian) (Entered: 10/26/2017)

10/30/2017

176 Joint MOTION for Extension of Time to File Pretrial Documents filed by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Attachments: # 1 Text of Proposed Order) (Bredenberg, Michael) (Entered: 10/30/2017)

10/30/2017

Motion Submitted to Chief Judge James C. Dever III regarding 176 Joint MOTION for Extension of Time to File Pretrial Documents. (Indig, A.) (Entered: 10/30/2017)

10/30/2017

177 ORDER - GRANTING 176 Motion for Extension of Time to File. The Proposed Joint Pretrial Order, Proposed Findings of Fact and Conclusions of Law, and Trial Briefs shall be filed no later than November 2, 2017. Signed by Chief Judge James C. Dever III on 10/30/2017. (Indig, A.) (Entered: 10/30/2017)

10/30/2017

178 MOTION in Limine to Exclude Plaintiff's Proffered Expert Witnesses filed by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Bredenberg, Michael) (Entered: 10/30/2017)

11/02/2017 179 TRIAL BRIEF by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Dodson, Robert) (Entered: 11/02/2017)

11/02/2017 180 Proposed Findings of Fact by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Dodson, Robert) (Entered: 11/02/2017)

11/02/2017

181 Joint MOTION to Dismiss Joint Partial Motion to Dismiss with Prejudice filed by Thomas Heyer. (Attachments: # 1 Exhibit A -- Partial Settlement Agreement, # 2 Exhibit B -- Agreed Dismissal Order) (Hoffman, Ian) (Entered: 11/02/2017)

11/02/2017 182 Proposed Pretrial Order by Thomas Heyer. (Attachments: # 1 Exhibit A - Plaintiff's Exhibit List, # 2 Exhibit B -- Defendants' Exhibit List) (Hoffman, Ian) (Entered: 11/02/2017)

11/02/2017 183 Proposed Findings of Fact by Thomas Heyer. (Hoffman, Ian) (Entered: 11/02/2017)

11/02/2017 184 TRIAL BRIEF by Thomas Heyer. (Hoffman, Ian) (Entered: 11/02/2017)

11/03/2017

185 ORDER - GRANTING 181 Joint Partial Motion to Dismiss with Prejudice. The only claim that remains in this case is Count VIII (Violation of the U.S. Constitution, First Amendment), and the Parties have agreed that the trial on that claim shall be limited to Heyer's demand for access to a videophone that will allow him to communicate directly (point-to-point) with persons outside of Butner using ASL. That trial shall commence on November 6, 2017. Signed by Chief Judge James C. Dever III on 11/3/2017. (Indig, A.) (Entered: 11/03/2017)

11/03/2017

186 Notice filed by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons regarding 182 Proposed Pretrial Order - Defendants' Amended Trial Exhibit List. (Kelley, Christina) (Entered: 11/03/2017)

11/04/2017 187 RESPONSE in Opposition regarding 178 MOTION in Limine to Exclude Plaintiff's Proffered Expert Witnesses filed by Thomas Heyer. (Hoffman, Ian) (Entered: 11/04/2017)

11/04/2017 188 Notice filed by Thomas Heyer regarding 182 Proposed Pretrial Order Plaintiff's Amended Trial Exhibit List. (Hoffman, Ian) (Entered: 11/04/2017)

11/06/2017 189 JOINT PRETRIAL ORDER. Signed by Chief Judge James C. Dever III on 11/6/2017. (Indig, A.) (Entered: 11/06/2017)

11/06/2017

190 Minute Entry for proceedings held before Chief Judge James C. Dever III - Bench Trial held on 11/6/2017. Plaintiff's presentation of evidence completed. Defendant begins presentation of evidence. Court to reconvene at 9:00 a.m. on 11/7/2017. (Court Reporter Amy Condon) (Indig, A.) (Entered: 11/06/2017)

11/06/2017

191 Notice filed by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons Notice of Substitution of Public Officers. (Kelley, Christina) (Entered: 11/06/2017)

11/07/2017 192 Exhibit List. (Indig, A.) (Entered: 11/07/2017)

11/07/2017

193 Minute Entry for proceedings held before Chief Judge James C. Dever III: Bench Trial completed on 11/7/2017. Counsel and parties present. Defense continues and concludes presentation of evidence. Closing arguments by both parties. The court takes the matter under advisement, written order to follow. (Court Reporter Amy Condon) (Indig, A.) (Entered: 11/07/2017)

11/08/2017 194 Notice filed by Thomas Heyer Plaintiff's Closing Argument Presentation. (Hoffman, Ian) (Entered: 11/08/2017)

11/12/2017

195 OFFICIAL TRANSCRIPT of BENCH TRIAL - DAY 1 held on November 6, 2017, before Chief Judge James C. Dever III. Court Reporter/Amy Condon. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Please review Attorney obligations regarding the redaction of electronic transcripts of court proceedings available on the court's <a href=http://www.nced.uscourts.gov/pdfs/transcriptRedactionRequirement s.pdf target=_blank>website</a> Redaction Request due 12/6/2017. Redacted Transcript Deadline set for 12/16/2017. Release of Transcript Restriction set for 2/13/2018. (Condon, A.) (Entered: 11/12/2017)

11/12/2017 196 OFFICIAL TRANSCRIPT of BENCH TRIAL - DAY 2 held on November 7, 2017, before Chief Judge James C. Dever III. Court Reporter/Amy Condon. Transcript may be viewed at the court public

terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Please review Attorney obligations regarding the redaction of electronic transcripts of court proceedings available on the court's <a href=http://www.nced.uscourts.gov/pdfs/transcriptRedactionRequirement s.pdf target=_blank>website</a> Redaction Request due 12/6/2017. Redacted Transcript Deadline set for 12/16/2017. Release of Transcript Restriction set for 2/13/2018. (Condon, A.) (Entered: 11/12/2017)

11/12/2017

NOTICE of Filing of Official Transcript 196 Transcript, 195 Transcript. The parties have seven calendar days from the filing of the transcript to file a Notice of Intent to Request Redaction. The parties must also serve a copy on the court reporter or transcriber. After filing the Notice of Intent to Request Redaction, a party must submit to the court reporter or transcriber, within 21 calendar days of the filing of the transcript, a written statement indicating where the personal data identifiers to be redacted appear in the transcript. (Condon, A.) (Entered: 11/12/2017)

11/13/2017

197 PROPOSED SEALED Document: (Selected Participants Only)by Ian S. Hoffman (available to: Defendants Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons, Plaintiff Thomas Heyer). (Hoffman, Ian) (Entered: 11/13/2017)

11/13/2017

198 PROPOSED SEALED Exhibit (Selected Participants Only)by Ian S. Hoffman (available to: Defendants Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons, Plaintiff Thomas Heyer). (Hoffman, Ian) (Entered: 11/13/2017)

11/13/2017

199 Notice filed by Thomas Heyer regarding 198 PROPOSED SEALED Exhibit, 197 PROPOSED SEALED Document, Notice of Filing Sealed Materials (Plaintiff's Post-Trial Letter Brief (D.E. 197) and Exhibit A to Plaintiff's Post-Trial Letter Brief (D.E. 198). (Hoffman, Ian) (Entered: 11/13/2017)

11/21/2017 200 Notice filed by Thomas Heyer Plaintiff's Supplemental Post-Trial Letter Brief. (Attachments: # 1 Exhibit A -- PX197) (Hoffman, Ian) (Entered: 11/21/2017)

05/09/2018

201 Notice filed by Thomas Heyer Notice of Supplemental Authority. (Attachments: # 1 Exhibit A -- Report & Recommendation in McBride, # 2 Exhibit B -- Opinion and Order in McBride) (Hoffman, Ian) (Entered: 05/09/2018)

09/12/2018

202 TEXT ORDER denying 167 Motion to Dismiss for Lack of Jurisdiction. Signed by Chief Judge James C. Dever III on 9/12/2018. (Hayes, Lyndsay) Modified on 9/12/2018 to add the word "text." (Indig, A.) (Entered: 09/12/2018)

09/12/2018 203 TEXT ORDER denying 178 Motion in Limine. Signed by Chief Judge James C. Dever III on 9/12/2018. (Hayes, Lyndsay) Modified on 9/12/2018 to add the word "text." (Indig, A.) (Entered: 09/12/2018)

09/12/2018

204 TEXT ORDER denying 167 Motion for Judgment on the Pleadings. Signed by Chief Judge James C. Dever III on 9/12/2018. (Hayes, Lyndsay) Modified on 9/12/2018 to add the word "text." (Indig, A.) (Entered: 09/12/2018)

02/12/2019

205 ORDER - After weighing the Turner factors as modified in Matherly, the court FINDS that Heyer failed to prove that the BOP's failure to install and provide Heyer the requested videophone equipment violates the First Amendment. Thus, the court enters judgment in favor of defendants and against Heyer. The clerk shall close the case. Signed by District Judge James C. Dever III on 2/12/2019. (Indig, A.) (Entered: 02/12/2019)

02/12/2019

206 CLERK'S JUDGMENT - IT IS ORDERED AND ADJUDGED that plaintiff Robert Paul Boyd was dismissed from this action by opinion of the Fourth Circuit Court of Appeals issued on February 23, 2017, mandate issued on April 17, 2017. IT IS FURTHER ORDERED AND ADJUDGED that plaintiff Thomas Heyer failed to prove that the Bureau of Prisons' failure to install and provide Heyer the requested videophone equipment violates the First Amendment. The court enters judgment in favor of defendants and against Heyer. Signed by Peter A. Moore, Jr., Clerk of Court on 2/12/2019. (Indig, A.) (Entered: 02/12/2019)

03/12/2019

207 MOTION to Alter Judgment holding that plaintiff Thomas Heyer failed to prove that the Bureau of Prisons' failure to install and provide Heyer the requested videophone equipment violates the First Amendment, MOTION to Amend/Correct 206 Clerk's Judgment,, 205 Order, holding that plaintiff Thomas Heyer failed to prove that the Bureau of Prisons' failure to install and provide Heyer the requested videophone equipment violates the First Amendment, MOTION for Reconsideration regarding 206 Clerk's Judgment,, 205 Order, holding that plaintiff Thomas Heyer failed to prove that the Bureau of Prisons' failure to install and provide Heyer the requested videophone equipment violates the First Amendment filed by Thomas Heyer. (Hoffman, Ian) (Entered: 03/12/2019)

03/12/2019 208 Memorandum in Support regarding 207 MOTION to Alter Judgment holding that plaintiff Thomas Heyer failed to prove that the Bureau of Prisons' failure to install and provide Heyer the requested

videophone equipment violates the First Amendment MOTION to Amend/Correct 206 Clerk's Judgment,, 205 Order, holding that plaintiff Thomas Heyer failed to prove that the Bureau of Prisons' failure to install and provide Heyer the requested videophone equipment violates the First Amen MOTION for Reconsideration regarding 206 Clerk's Judgment,, 205 Order, holding that plaintiff Thomas Heyer failed to prove that the Bureau of Prisons' failure to install and provide Heyer the requested videophone equipment violates t he First Amendment filed by Thomas Heyer. (Attachments: # 1 Exhibit Department of Justice Decision Regarding Jon TC Yeh's Rehabilitation Act Complaint, # 2 Exhibit Complaint, Yeh v. BOP, No. 3:18-cv-00943, Dkt. 1 (M.D. Pa. filed May 3, 2018), # 3 Exhibit Comprehensive Status Report Per the Courts Order of August 16, 2018, Yeh v. BOP, No. 3:18-cv-00943, Dkt. 34 (M.D. Pa. filed Dec. 4, 2018), # 4 Exhibit Comprehensive Status Report Per The Courts Order of November 27, 2018, Yeh v. BOP, No. 3:18-cv-00943, Dkt. 54 (M.D. Pa. filed Dec. 4, 2018), # 5 Exhibit Exhibit filed by United States Bureau of Prisons in Preliminary Injunction Hearing held Aug. 10, 2018, Yeh v. BOP, No. 3:18-cv-00943, Dkt. 28 (M.D. Pa. filed Aug. 10, 2018), # 6 Exhibit Joint Status Update, Yeh v. BOP, No. 3:18-cv-00943, Dkt. 55 (M.D. Pa. filed Dec. 11, 2018), # 7 Exhibit Brief in Support of Motion for Judgment on the Pleadings, Yeh v. BOP, No. 3:18-cv-00943, Dkt. 63 (M.D. Pa. filed Feb. 19, 2019), # 8 Exhibit Transcript of Hearing on Motion for Preliminary Injunction, Yeh v. BOP, No. 3:18-cv-00943 (M.D. Pa. held Aug. 10, 2018)) (Hoffman, Ian) (Entered: 03/12/2019)

03/13/2019

Notice to Counsel regarding: 208 Memorandum in Support. When filing a document with more than five exhibits/attachments, the first attached exhibit/attachment must be an index of all of the subsequent attached documents. No further action is required at this time. (Indig, A.) (Entered: 03/13/2019)

04/02/2019

209 RESPONSE in Opposition regarding 207 MOTION to Alter Judgment holding that plaintiff Thomas Heyer failed to prove that the Bureau of Prisons' failure to install and provide Heyer the requested videophone equipment violates the First Amendment MOTION to Amend/Correct 206 Clerk's Judgment,, 205 Order, holding that plaintiff Thomas Heyer failed to prove that the Bureau of Prisons' failure to install and provide Heyer the requested videophone equipment violates the First Amen MOTION for Reconsideration regarding 206 Clerk's Judgment,, 205 Order, holding that plaintiff Thomas Heyer failed to prove that the Bureau of Prisons' failure to install and provide Heyer the requested videophone equipment violates t filed by Ike Eichenlaub, Eric H. Holder, Jr, Tracy W. Johns, Thomas R Kane, Sara M. Revell, United States Bureau of Prisons. (Bredenberg, Michael) (Entered: 04/02/2019)

04/16/2019

210 REPLY to Response to Motion regarding 207 MOTION to Alter Judgment holding that plaintiff Thomas Heyer failed to prove that the Bureau of Prisons' failure to install and provide Heyer the requested videophone equipment violates the First Amendment MOTION to Amend/Correct 206 Clerk's Judgment,, 205 Order, holding that plaintiff Thomas Heyer failed to prove that the Bureau of Prisons' failure to install and provide Heyer the requested videophone equipment violates the First Amen MOTION for Reconsideration regarding 206 Clerk's Judgment,, 205 Order, holding that plaintiff Thomas Heyer failed to prove that the Bureau of Prisons' failure to install and provide Heyer the requested videophone equipment violates t he First Amendment filed by Thomas Heyer. (Hoffman, Ian) (Entered: 04/16/2019)

04/16/2019

Motion Submitted to District Judge James C. Dever III regarding 207 MOTION to Alter Judgment holding that plaintiff Thomas Heyer failed to prove that the Bureau of Prisons' failure to install and provide Heyer the requested videophone equipment violates the First Amendment. (Indig, A.) (Entered: 04/16/2019)

06/21/2019 211 ORDER - The court DENIES Heyer's motion [D.E. 207]. Signed by District Judge James C. Dever III on 6/21/2019. (Indig, A.) (Entered: 06/21/2019)

07/11/2019 212 Notice of Appeal filed by Thomas Heyer. Filing fee, receipt number 0417-5016511. (Hoffman, Ian) (Entered: 07/11/2019)

07/12/2019 213 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals regarding 212 Notice of Appeal filed by Thomas Heyer. (Indig, A.) (Entered: 07/12/2019)

07/15/2019 214 US Court of Appeals Case Number 19-7027 (Michael Radday, Case Manager) as to 212 Notice of Appeal filed by Thomas Heyer. (Indig, A.) (Entered: 07/15/2019)

01/13/2021 215 Published Opinion from Fourth Circuit Court of Appeals - REVERSED AND REMANDED. (Indig, A.) (Entered: 01/13/2021)

01/13/2021 216 US Court of Appeals Judgment as to 212 Notice of Appeal filed by Thomas Heyer. (Indig, A.) (Entered: 01/13/2021)

01/25/2021 217 MOTION to Withdraw as Attorney filed by Thomas Heyer. (Nath, Snayha) (Entered: 01/25/2021)

01/25/2021 218 Memorandum in Support regarding 217 MOTION to Withdraw as Attorney filed by Thomas Heyer. (Nath, Snayha) (Entered: 01/25/2021)

01/25/2021

NOTICE OF DEFICIENCY regarding 217 Motion to Withdraw as Attorney. At the direction of the court, counsel shall file a proposed order. The order must be filed electronically using the event PROPOSED ORDER located in the RESPONSES AND REPLIES category. (Indig, A.) (Entered: 01/25/2021)

01/25/2021 219 Proposed Order regarding 217 MOTION to Withdraw as Attorney filed by Thomas Heyer. (Nath, Snayha) (Entered: 01/25/2021)

01/25/2021

Motion Submitted to District Judge James C. Dever III regarding 217 MOTION to Withdraw as Attorney. (Indig, A.) (Entered: 01/25/2021)

01/25/2021 220 ORDER - GRANTING 217 Motion to Withdraw as Attorney. Attorney Snayha M. Nath terminated. Signed by District Judge James C. Dever III on 1/25/2021. (Indig, A.) (Entered: 01/25/2021)

03/08/2021 221 MANDATE of US Court of Appeals (certified copy) as to 212 Notice of Appeal filed by Thomas Heyer. (Indig, A.) (Entered: 03/08/2021)

03/08/2021

Case Submitted to District Judge James C. Dever III. (Indig, A.) (Entered: 03/08/2021)

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