Keywords: deliberate indifference, effective communication, interpreter
Thomas Heyer previously was convicted of possessing child pornography. After violating the terms of his supervised release, he was imprisoned at the correctional facility in Butner, North Carolina (“Butner”). Near the end of his sentence, the government moved to detain him civilly under the Adam Walsh Act as a “sexually dangerous person.” He has been civilly detained at Butner since 2008. Adam Walsh detainees are required to participate, while confined, in a Commitment and Treatment Program (“CT Program”), which are designed to maximize therapeutic gains.
Heyer has been deaf since birth. He primarily communicates through American Sign Language (“ASL”), cannot read lips, and cannot communicate in written English. Heyer requested an ASL interpreter when he arrived at Butner in 2008, and made several requests since that time; however, no interpreter was provided for any purpose until late 2012. From 2008 to 2012, Heyer had no ASL interpreter for any medical appointments, causing Heyer difficulty getting diagnoses and understanding the directions for taking his medications. This resulted in seizures after Heyer misunderstood the instructions on refilling his blood pressure medication. Meanwhile, for the CT Program, Butner provided no “adequate” means to facilitate participation until late 2012, when they began providing limited use of an ASL translator. Even then, interpreters were not provided for all parts of the program. Despite Butner’s promise in 2012 to provide ASL translators, Heyer had at least nine medical interactions without an interpreter.
Heyer’s primary means of communication with the outside world was through a Text Telephone (“TTY”). TTY is considered outdated technology and does not allow for real time communication. Further, the TTY devices are in locked staff offices, and Heyer would frequently be denied access due to staffing issues.
Heyer has other discrete issues at the prison caused by his deafness. For one, he does not attend religious services, because he can neither understand nor participate in them without use of an interpreter. He cannot fully participate in the prison’s GED preparation class, because no interpreter is provided. He cannot hear fire alarms, and although the prison installed a flashing light in his cell, he has trouble distinguishing that light from the flashlights of the guards.
In 2011, Heyer initially brought this suit against the Bureau of Prisons (“BOP”), asserting a number of disability-related claims. First, he claimed that BOP violated both the Rehabilitation Act of 1973 and the Eighth Amendment, through its failure to accommodate his disability with ASL translators and other services. He asserted various Fifth Amendment claims, based on failures to provide ASL interpreters, to allow him to participate in the CT program, and to communicate with mental health officials responsible for determining whether his civil commitment continues. Heyer brought First Amendment claims based on BOP’s restrictive access to TTY devices, and failure to provide access to a videophone. Heyer brought another claim under the First Amendment, as well as the Religious Freedom Restoration Act, based on the prison’s failure to allow him to participate in religious services.The District Court for the Eastern District of North Carolina (“District Court”) dismissed several of Heyer’s claims, and granted Summary Judgment for BOP on the other claims. Specifically, the District Court dismissed the Rehabilitation Act claim for failure to exhaust administrative remedies, and rejected some claims as “moot” based on BOP beginning to provide limited access to an ASL interpreter. Heyer appealed the grants of summary judgment, but did not appeal the Rehabilitation Act claim.
The deliberate indifference standard comes from the Eighth Amendment, which prohibits cruel and unusual punishment. The Supreme Court has held that deliberate indifference to a prisoner’s serious medical issues is equivalent to intentional infliction of pain, and is therefore also prohibited by the Eighth Amendment. Because Heyer is a civil detainee, he is entitled to at least the same level of protection as a typical prisoner.
There are two components to the deliberate indifference standard: The plaintiff must show (1) “that he had serious medical needs,” an objective inquiry, and (2) “that the defendant acted with a deliberate indifference to those needs,” a subjective inquiry.
A serious medical need includes a need that is diagnosed by a physician, as well as one that a lay person would easily recognize. The Sixth Circuit holds that Heyer’s seizures are sufficiently serious to constitute a serious medical need for the objective component of this standard. Further, the Court holds that because of the lack of a translator, his inability to communicate with the medical staff posed a substantial risk of serious harm.As to the subjective component, the Court points out that deliberate indifference amounts to more than just negligence, but is less than acting for the purpose of causing harm. The Court concluded that BOP knew Heyer was deaf, knew he could only communicate in ASL, knew that accurate and reliable communication in medical appointments was necessary for Heyer’s treatment, and knew that without an ASL translator this type of communication was impossible. Therefore, they reversed the District Court’s grant of summary judgment, holding that a reasonable jury could have concluded that BOP acted with deliberate indifference to Heyer’s medical needs.
The First Amendment allows prisoners to communicate with those outside the prison’s walls, subject to regulation that protects legitimate government interests. For the right to be considered impinged (or restricted), it must be shown that the policy or regulation limits the prisoner’s ability to effectively communicate with someone outside of the prison. If this First Amendment right is found to be impinged, a set of factors from Turner v. Safley is used to balance the importance of the right with the government’s interests. BOP argues that the use of the TTY device means the right is not impinged. The evidence makes clear, however, that Heyer cannot communicate effectively through written English, and therefore he cannot communicate effectively even through the TTY device, which requires the use of written English. Therefore, the Court holds that his First Amendment right is impinged.
The court then applied the following four factors from Turner: (1) whether a “valid, rational connection exists” between a legitimate government interest and the prison regulation, (2) whether there are alternative means available to prison inmates to exercise the right, (3) the impact accommodation will have generally on the allocation of prison resources, and (4) “whether there was an ‘absence of ready alternatives’ to the regulation in question.” Turner v. Safley, 482 U.S. 78, 89 (1987).
For the first factor, a rational connection between the regulation and a government interest, the court looks to whether the asserted goal is remote, which would thus render the policy irrational or arbitrary. BOP’s asserted goal is maintaining prison security. They argue that video phone use makes it more difficult to screen who a prisoner is able to interact with and increases the likelihood they may see children or prior victims, etc. However, the Court rejected this argument. Monitoring of TTY conversations was already in place, meaning there is no real difference in the resource use to monitor either of the two.
The second factor, whether there are alternate means of communication available, also weighs against BOP. The only type of communication that would not require the use of written English is in-person visitation. And although that is available to Heyer, it does not help him in situations where he would need immediate, emergency contact. Therefore, the Court found that Heyer has no effective alternative means of communication readily available to him.
The third factor asks what effect the accommodation will have on guards, inmates, and allocation of prison resources. Although BOP argued that the videophone would require systematic overhauls and cost millions of dollars, Heyer was able to demonstrate that, not only did nothing in the record suggest that systemic change was required, but also that a videophone could be installed at a very small expense. And as previously mentioned, the prison staff already monitors TTY calls, meaning no change would be required to monitor video calls.Last, the fourth factor asks whether there are ready alternatives Heyer could use. Under this factor, Heyer puts forth his argument in favor of videophones. He argues that they could be monitored in the same way as regular telephone calls (which already have similar security risks), could be limited to deaf inmates, and already contain built in security features (password protection) which TTY devices do not have. Further, he had already demonstrated that they can be installed at minimal cost to the facility. Therefore, the Sixth Circuit reversed the District Court’s grant of summary judgment, because a reasonable jury could have found that the restriction on videophones unreasonably impinged on Heyer’s First Amendment right, with no proper government justification.
After Heyer filed his lawsuit, BOP made several changes (or promises to make changes), in hopes to remedy the situation. Because of these post-litigation changes, the District Court deemed three of Heyer’s claims “moot,” because they were satisfied that the changes BOP made remedied Heyer’s claims. Specifically, the claims that were deemed moot were: (1) failure to provide ASL interpreters for mental health treatment at the CT program, because BOP promised to provide them in the future, (2) failure to provide visual emergency alarms, because they installed a light in his cell, and (3) failure to provide interpreters for religious services, because they promised to do so in the future.
The Sixth Circuit points out that voluntary cessation only moots a claim “where it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to occur.” The record in this case shows that BOP has never provided Heyer with an interpreter for religious services. Their promise to do so in the future is, to the court, nothing more than a “bald assertion” that they will comply in the future, which is not enough to make an action moot. Therefore, on the claim that failure to provide interpreters for religious services violated Heyer’s First Amendment rights, the Sixth Circuit reversed the District Court’s grant of summary judgment.
On the installation of the strobe light in Heyer’s cell, as a visual signal of emergencies, the court points out that, just because BOP has taken some action does not mean they have taken sufficient action. Because Heyer presented evidence that called into question the adequacy of the prison’s action, and showed that no other emergency alert mechanism has been helpful to him, the Court reversed the grant of summary judgment on the claim that failure to provide an adequate system to alert Heyer to emergencies violated his Fifth Amendment rights.Finally, on the issue of ASL interpreters for the CT Program, the Sixth Circuit holds that the post-litigation decision to provide interpreters for some aspects of the program is not enough to justify deeming the claim moot. The CT Program is what determines when Heyer will be eligible for release, and Heyer sought in his claim a declaration that an interpreter was required for all aspects of the CT Program. Thus, because they only provided an interpreter for some aspects, the court held here that summary judgment was improper on Heyer’s Fifth Amendment claim, that a translator was required at all CT Program meetings.
The court ruled that Heyer presented enough evidence to preclude summary judgment on Heyer’s medical treatment, safe environment, and videophone related claims. The court also ruled that it was improper to grant summary judgment on the basis of BOP’s post-litigation assurances regarding ASL interpreters in the CT Program and at religious events. The Sixth Circuit remanded the case back to the District Court, to re-evaluate the merits of the claim consistent with this opinion.
This case is a significant victory for prisoners with disabilities. Not only does it clarify how to apply the “deliberate indifference” standard, but it shows a willingness of courts to prefer newer technologies that will help improve quality of life. The court stressed that TTY was an outdated form of technology, and noted that accessible technology is becoming more affordable. Another positive sign from the court was its unwillingness to simply take the prison at its word. Rather, they scrutinized the prison’s practices, and looked to whether Heyer was actually being poorly treated.