                               PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 15-6826


THOMAS HEYER,

                 Plaintiff - Appellant,

           and

ROBERT PAUL BOYD,

                 Plaintiff,

           v.

UNITED STATES BUREAU OF PRISONS; THOMAS R. KANE, in his
official capacity as Acting Director of the United States
Bureau of Prisons; IKE EICHENLAUB, in his official capacity
as Regional Director of the United States Bureau of Prisons
Mid−Atlantic Region; WARDEN SARA M. REVELL; WARDEN TRACY W.
JOHNS; JEFFERSON B. SESSIONS, III, Attorney General,

                 Defendants - Appellees.

−−−−−−−−−−−−−−−−−−−−−−−−−−−

NATIONAL ASSOCIATION OF THE DEAF,

                 Amicus Supporting Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
Chief District Judge. (5:11-ct-03118-D)


Argued:   October 26, 2016                 Decided:   February 23, 2017


Before MOTZ, TRAXLER, and FLOYD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by published
opinion.   Judge Traxler wrote the opinion, in which Judge Motz
and Judge Floyd joined.


ARGUED: Ian S. Hoffman, ARNOLD & PORTER LLP, Washington, D.C.,
for Appellant.    Robert J. Dodson, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellees.      ON BRIEF:
Deborah Golden, Elliot Mincberg, WASHINGTON LAWYERS’ COMMITTEE
FOR CIVIL RIGHTS & URBAN AFFAIRS, Washington, D.C.; David B.
Bergman, ARNOLD & PORTER LLP, Washington, D.C., for Appellant.
John Stuart Bruce, Acting United States Attorney, Jennifer P.
May-Parker,   Jennifer   D.  Dannels,  Assistant  United  States
Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellees.     Marc Charmatz, Howard A. Rosenblum,
Debra Patkin, NATIONAL ASSOCIATION OF THE DEAF, Silver Spring,
Maryland, for Amicus Curiae.




                               2
TRAXLER, Circuit Judge:

     Appellant       Thomas    Heyer    has       been    deaf     since    birth.        His

native    language      is    American       Sign     Language         (“ASL”),    and        he

communicates primarily though ASL.                    Heyer is presently confined

as a sexually dangerous person, see Adam Walsh Child Protection

and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587, at

the federal correctional institution in Butner, North Carolina.

Heyer brought this action against the United States Bureau of

Prisons    and   other       defendants       (collectively,            “BOP”),    raising

various     claims      related    to        BOP’s       failure       to   provide       ASL

interpreters      for    medical       appointments          and       other      important

interactions,     its    refusal    to       provide      Heyer     with    access       to    a

videophone,      and    its    failure           to   otherwise        accommodate        his

deafness.     The district court granted summary judgment in favor

of BOP, and Heyer appeals.               As we will explain, we affirm the

district    court’s     dismissal       of       Count    III,    as    Heyer     does    not

challenge that ruling on appeal, but we vacate the remainder of

the district court’s order and remand for further proceedings. 1

                                             I.

                                             A.




     1 Robert Boyd, another Adam Walsh detainee, was originally a
plaintiff in this action. His appeal was dismissed after it was
discovered that he was not deaf.


                                             3
      Heyer     was     previously        convicted      of    possessing         child

pornography.          In     2007,    Heyer     violated      the    terms   of     his

supervised     release       and     served     the   resulting       eighteen-month

sentence at Butner.            Shortly before that sentence expired in

December 2008, the government filed a petition seeking to detain

Heyer under the Adam Walsh Act.                  Heyer has remained in civil

custody at Butner since that filing.                  The district court held a

hearing on the government’s petition in May 2012 and ordered

Heyer detained as a sexually dangerous person.                      We affirmed that

order on appeal.           See United States v. Heyer, 740 F.3d 284 (4th

Cir. 2014).

      Under the terms of the Adam Walsh Act, Heyer will remain in

civil custody until such time as the government determines that

his “condition is such that he is no longer sexually dangerous

to   others,   or     will    not    be   sexually     dangerous      to   others   if

released under a prescribed regimen of medical, psychiatric, or

psychological care or treatment.”                 18 U.S.C. § 4248(e).             When

making this determination, BOP’s mental health professionals may

consider,     among    other    things,       evidence   “[e]stablished      through

interviewing     and       testing   of   the    person”;     evidence     “[o]f    the

person’s denial of or inability to appreciate the wrongfulness,

harmfulness, or likely consequences of engaging or attempting to

engage in sexually violent conduct or child molestation”; and

evidence “[i]ndicating successful completion of, or failure to

                                           4
successfully complete, a sex offender treatment program.”                       28

C.F.R. § 549.95.

     Adam Walsh detainees at Butner are expected to participate

in   the     “Commitment   and   Treatment     Program”     (“CT    Program”).

designed for Adam Walsh detainees.            J.A. 305.      The CT Program

includes     mental     health   treatment    in   group     and    individual

settings, daily meetings, and other “contextual activities” that

“maximize the opportunities for therapeutic gain.”                   J.A. 536.

Heyer began participating in the CT Program in July 2012.

                                     B.

     As noted, Heyer has been deaf since birth and communicates

primarily     through    ASL.    Heyer    cannot   read    lips    and   has    no

ability to understand speech.             Heyer, who has an eighth-grade

education, has extremely limited proficiency in English.                       The

lexicon and syntax structure of English and ASL are entirely

different, and Heyer cannot communicate effectively in written

English. 2

     Since arriving at Butner in December 2008, Heyer has made

multiple requests for ASL interpreters.             BOP officials refused




     2 Because this is an appeal from the grant of summary
judgment, we recount the facts and the reasonable inferences to
be drawn therefrom in the light most favorable to Heyer, the
non-moving party. See Raub v. Campbell, 785 F.3d 876, 878 (4th
Cir. 2015).


                                      5
to provide qualified interpreters for any purpose until late

2012, more than a year after this case was commenced.

     Heyer has high blood pressure and cholesterol, and he has

had multiple seizures during his time at Butner.                 From 2008

until December 2012, however, BOP refused to provide Heyer with

ASL interpreters for scheduled medical appointments or during

medical emergencies.      Because no ASL interpreter was present at

medical appointments, Heyer has had difficulty understanding the

instructions       for   taking     and   refilling    his    prescription

medications.       For example, in February 2011, Heyer went without

his blood pressure medication because he did not understand the

doctor’s refill instructions.         In November 2011, Heyer suffered

a seizure while in his cell.         Alerted to the problem by Heyer’s

cellmate,    the    officer   on   duty   concluded   that   Heyer   “looked

fine,” J.A. 36, and did not seek medical attention for Heyer.

Heyer finally saw a doctor more than a month after the seizure,

but no interpreter was provided for him.

     In 2010, prison officials assigned another inmate to act as

Heyer’s “inmate companion person” to help Heyer communicate with

others.     Although the inmate companion does not know ASL, 3 BOP

required Heyer to rely on him during medical interactions.




     3 When tested by Heyer’s expert, the inmate companion could
not even provide a “ratable sample of ASL,” meaning that he
(Continued)
                                      6
       As to the CT Program designed for Adam Walsh detainees, BOP

officials     concluded         that    Heyer’s     inmate     companion      would   be

“inadequate” to facilitate Heyer’s participation.                            J.A. 1117.

BOP nonetheless did not provide Heyer with ASL interpreters for

the CT Program until September 2012; even then, interpreters

were provided for only some portions of the Program.

       In December 2012 -- eighteen months after the initiation of

this    action      --    BOP    announced        that    it   would      provide     ASL

interpreters        for     Heyer’s       scheduled        medical        appointments.

Through October 2013, however, Heyer had at least nine medical

interactions        (whether      scheduled       appointments       or     emergencies)

where   no    interpreter         was    provided,       including     at    least    two

scheduled appointments.           See J.A. 495, 1285.

       At some point after the commencement of this action, BOP

entered      into    a    contract      with    a   provider     of       video   remote

interpreting (“VRI”) services, which provides Internet-based 24-

hour, on-demand access to qualified ASL interpreters, for use in

cases of medical emergencies or other urgent interpreting needs.

In an affidavit dated August 21, 2014, a BOP official stated

that VRI services would be available to Heyer “in the very near




could not provide “at least several minutes” of ASL use during a
20-minute proficiency assessment. J.A. 372.


                                            7
future,” assuming the provider and interpreters could meet BOP’s

background-check requirements.            J.A. 301.

                                          C.

       Heyer communicates with the outside world through email and

through the use of a “TTY” device, which contains a keyboard and

permits written messages to be sent between TTY devices over a

telephone line.         TTY does not permit real-time conversations,

and    each   conversation    over    a    TTY    device     takes    significantly

longer    than    signed      or     spoken      conversations.           Effective

communication over a TTY device requires proficiency in written

English, which Heyer lacks.            There are only two TTY devices at

Butner, both of which are in locked staff offices.                       Heyer thus

can use the TTY device only with the assistance of a staff

person, and only a few staff members are trained on its use.

Staff members frequently deny Heyer access to the TTY during the

day,   and,   because    of   staffing        issues,   he   has     essentially   no

ability to use it at night or on the weekends.                     Inmates who are

not deaf have free use of the telephone at Butner and do not

need to seek staff permission.

       TTY is old technology that is fast becoming obsolete.                   Over

the last decade, many deaf people have migrated from TTY devices

to videophones.      Because a TTY device is required on both ends

of the call, the abandonment of TTY technology means there are

fewer and fewer people with whom Heyer can communicate.

                                          8
       A videophone works much like a telephone does for a hearing

person.    As explained in the record, a videophone is a telephone

operated through a computer or stand-alone device which has a

camera and screen for visual, real-time communication.                      If users

on both ends of the conversation have a videophone, they can

communicate directly and visually using ASL.                  If one user does

not have a videophone, the deaf person can use the videophone to

access Video Relay Service (“VRS”).                 With VRS, the deaf person

communicates     visually    with   an       operator,    using    ASL,     and    the

operator   interprets      the   conversation        orally   to     the    non-deaf

party through a telephone.

       Heyer’s deafness has caused him other problems while at

Butner.    For example, Heyer does not attend religious services

because    he    cannot     understand        or     participate      without       an

interpreter.      Heyer cannot understand announcements made over

the prison’s public address system.                He cannot access goods sold

through the commissary, because the goods are handed through a

mirrored window by a person with whom Heyer cannot interact.

Heyer attends a GED preparation class, but his participation is

very   limited   because    no   interpreter        is   provided.         Heyer   has

missed or been late for scheduled activities because BOP has

refused to provide him with a vibrating watch or vibrating bed

device.    Other inmates have had to alert Heyer to fire alarms

because he cannot hear the alarm sounding through the prison.

                                         9
In March 2014 -- almost three years after the commencement of

this action -- BOP installed an emergency flashing light in his

cell.   However, the flashing strobe light is very similar to the

periodic flashing of staff flashlights, which makes it difficult

for Heyer to determine whether there is an emergency.

                                         II.

      In 2011, Heyer brought this action against BOP.                           In the

complaint, Heyer asserted that BOP violated the Rehabilitation

Act of 1973 by failing to provide ASL translators and otherwise

accommodate    his      disability.            Heyer    also     asserted      multiple

violations of his Fifth Amendment rights, including claims based

on   BOP’s    failure     to    provide        ASL     interpreters      for   medical

appointments and to permit him to participate in the CT Program

and communicate with the mental health officials responsible for

determining the duration of his civil commitment.                         Heyer also

alleged violations of his First Amendment rights based on BOP’s

failure to provide access to a videophone and its restrictions

on   access   to   the    TTY   device     (Count       VIII).      Finally,      Heyer

alleged violations of his rights under the First Amendment and

the Religious Freedom Restoration Act of 1993 (“RFRA”), based on

BOP’s   failure      to   provide     ASL        interpreters       so    Heyer    can

participate in religious services.

      The district court dismissed the Rehabilitation Act claim

(Count I) for failure to exhaust administrative remedies, and it

                                          10
dismissed Heyer’s Fifth Amendment right-to-privacy claim (Count

V) for failure to state a claim.                  See Heyer v. United States

Bureau of Prisons, 2013 WL 943406, at *3, (E.D.N.C. Mar. 11,

2013)    (unpublished).            The   court    thereafter    granted    summary

judgment in favor of BOP on the remaining claims.                       The court

dismissed one claim for lack of standing, rejected some claims

on the merits, and rejected others as moot, based on BOP’s post-

litigation      decision    to     begin   providing     ASL   interpreters     for

certain purposes.        See Heyer v. United States Bureau of Prisons,

2015 WL 1470877 (E.D.N.C. Mar. 31, 2015) (unpublished).                      Heyer

now appeals the district court’s 2015 summary judgment ruling 4;

he does not appeal the district court’s 2013 dismissal of Counts

I and V of his complaint.

     “We review a district court’s decision to grant summary

judgment   de    novo,     applying      the    same   legal   standards   as   the

district court, and viewing all facts and reasonable inferences

therefrom in the light most favorable to the nonmoving party.”

T–Mobile Ne., LLC v. City Council of Newport News, 674 F.3d 380,

384–85    (4th    Cir.     2012)    (internal      quotation    marks   omitted).


     4  In Count III of the complaint, Heyer challenged BOP’s
failure    to  provide   ASL    interpreters  for  disciplinary
proceedings.     Because  Heyer   had   never been  subject  to
disciplinary proceedings at Butner, the district court in its
2015 order dismissed the claim, concluding that Heyer lacked
standing to pursue it. Heyer does not challenge that dismissal
on appeal.


                                           11
Summary judgment is appropriate “if the movant shows that there

is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.”                            Fed. R. Civ. P.

56(a).

                                           III.

      We begin with Heyer’s claims that BOP’s failure to provide

ASL interpreters for medical interactions amounts to deliberate

indifference        to    Heyer’s       medical       needs.         The    deliberate-

indifference       standard      comes    from      the    Supreme   Court’s       Eighth-

Amendment jurisprudence applicable to prisoners convicted of a

crime.    “[T]he Eighth Amendment’s prohibition against ‘cruel and

unusual punishments’ [extends] to the treatment of prisoners by

prison officials,” Hill v. Crum, 727 F.3d 312, 317 (4th Cir.

2013), and “forbids the unnecessary and wanton infliction of

pain,” id. (internal quotation marks omitted).                          As the Supreme

Court has explained, “deliberate indifference to serious medical

needs    of    prisoners        constitutes         the    unnecessary      and     wanton

infliction of pain proscribed by the Eighth Amendment.”                           Estelle

v.   Gamble,       429   U.S.    97,     104    (1976)      (citation      and    internal

quotation marks omitted).

      Although Heyer is a civil detainee rather than a convicted

prisoner,      Heyer     nonetheless       frames         his   argument    in    Eighth-

Amendment terms, arguing that he is entitled under the Fifth

Amendment     to    at   least    the     same      protection     prisoners       receive

                                               12
under the Eighth Amendment. 5            According to Heyer, the failure to

provide interpreters amounts to deliberate indifference to his

medical needs and thus violates his Fifth Amendment rights.                        As

we   will        explain,   we   agree   with    Heyer     that   his   evidence   is

sufficient to support a finding of deliberate indifference and

that       the   district   court   therefore      erred    by    granting   summary

judgment in favor of BOP on these claims. 6

       The       deliberate-indifference        standard    has   two   components.

The plaintiff must show that he had serious medical needs, which

       5
       See, e.g., Youngberg v. Romeo, 457 U.S. 307, 322, (1982)
(Civil detainees “are entitled to more considerate treatment and
conditions of confinement than criminals whose conditions of
confinement are designed to punish.”); Ingraham v. Wright, 430
U.S. 651, 671 n.40 (1977) (“[T]he State does not acquire the
power to punish with which the Eighth Amendment is concerned
until after it has secured a formal adjudication of guilt in
accordance with due process of law.”); Bell v. McAdory, 820 F.3d
880, 882 (7th Cir. 2016) (“States must treat detainees at least
as well as prisoners, and often they must treat detainees better
-- precisely because detainees (whether civil or pretrial
criminal) have not been convicted and therefore must not be
punished.”).

       6In cases involving involuntarily committed psychiatric
patients, claims of inadequate medical care are governed by the
“professional judgment” standard rather than the deliberate
indifference standard.   See Youngberg, 457 U.S. at 323; Patten
v. Nichols, 274 F.3d 829, 838 (4th Cir. 2001). Because we agree
with Heyer that his evidence is sufficient to support a finding
of   deliberate  indifference,   we  need   not  flesh out  the
differences between the two standards or determine whether the
professional-judgment standard should also be applied to civil
detainees who are confined alongside convicted criminals in a
correctional facility rather than in a psychiatric hospital.
See Brown v. Harris, 240 F.3d 383, 388 (4th Cir. 2001)
(concluding that deliberate-indifference standard applies to
medical-care claims involving pre-trial detainees).


                                          13
is   an    objective      inquiry,     and    that    the     defendant      acted   with

deliberate indifference to those needs, which is a subjective

inquiry.       See Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008).

                                             A.

       In our view, Heyer’s evidence is more than sufficient to

show the existence of serious medical needs.                        A “serious medical

need”     is    “one    that    has    been       diagnosed    by     a    physician   as

mandating treatment or one that is so obvious that even a lay

person     would     easily     recognize      the    necessity       for    a   doctor’s

attention.”        Id. at 241 (internal quotation marks omitted).

       As we understand his claims, Heyer does not contend that

his deafness, in and of itself, is a serious medical need that

requires treatment.            Instead, he contends that BOP’s failure to

provide ASL interpreters for his medical interactions has led to

constitutionally inadequate treatment for serious medical needs

that have arisen during his confinement.                    We agree.

       As discussed above, Heyer has suffered multiple seizures

during his confinement, and we have little difficulty concluding

that      seizures      are    sufficiently        serious     to     require     medical

treatment.       See Shreve v. Franklin Cty., 743 F.3d 126, 135 (6th

Cir. 2014) (explaining that seizure suffered by inmate amounted

to “a serious medical need to which indifference would likely

have been a constitutional violation in itself”); cf. Grayson v.

Peed,     195    F.3d    692,    695    (4th       Cir.   1999)      (no    evidence   of

                                             14
objectively serious medical need in case where detainee was not

“hav[ing] trouble breathing . . . [,] was not bleeding, was not

vomiting or choking, and was not having a seizure”).                    And while

suffering these serious medical problems, Heyer was completely

unable   to      communicate    with   medical    staff.    Heyer’s      evidence

establishes, for purposes of these proceedings, that he can only

communicate through ASL.          He cannot read lips, has no ability to

understand speech, and cannot communicate effectively in written

English.      Thus, without an ASL interpreter, Heyer was unable to

explain what happened or describe his symptoms to the medical

staff,     and    he   was   unable    to    understand    any   questions     or

instructions from the medical staff.               Even a lay person could

easily recognize the need for a patient with a serious medical

condition to be able to communicate with medical staff, so a

proper diagnosis can be made, and for the patient to understand

the medical staff’s instructions, so the medical condition can

be properly treated.

     BOP does not argue that seizures are not serious, nor does

it   contend       that   the   ability      to   communicate    with     medical

providers is unimportant to treatment.               Instead, BOP, mirroring

the district court’s analysis, argues that Heyer cannot show a

serious medical need because there is no evidence that Heyer

suffered any “adverse medical condition as a result of not being



                                        15
provided interpreters during his medical encounters.”                                       Brief of

Appellee at 44.

       We disagree.         BOP’s argument demands more of Heyer than the

case law requires.               An actionable deliberate-indifference claim

does not require proof that the plaintiff suffered an actual

injury.        Instead,         it    is   enough           that    the   defendant’s        actions

exposed the plaintiff to a “substantial risk of serious harm.”

Farmer v. Brennan, 511 U.S. 825, 837 (1994) (emphasis added);

see also Rish v. Johnson, 131 F.3d 1092, 1096 (4th Cir. 1997)

(deliberate-indifference standard requires prisoner to “produce

evidence      of    a     serious       or      significant          physical     or     emotional

injury resulting from the challenged conditions, or demonstrate

a   substantial          risk    of    such       serious          harm   resulting      from    the

prisoner’s         unwilling         exposure          to    the     challenged     conditions”

(citation omitted; emphasis added)); Ball v. LeBlanc, 792 F.3d

584,    593    (5th      Cir.    2015)          (“To       prove    unconstitutional          prison

conditions, inmates need not show that death or serious injury

has already occurred.                   They need only show that there is a

substantial         risk    of        serious         harm.”        (citation     and       internal

quotation marks omitted)).

       In our view, the facts outlined above are sufficient to

show    that       the     absence         of    ASL        interpreters        during       medical

interactions        exposed          Heyer      to     a    substantial      risk      of    serious

harm.     Heyer’s evidence is thus sufficient, at this stage of the

                                                     16
proceedings,         to    satisfy     the        objective       component     of     the

deliberate-indifference inquiry.

                                             B.

       We turn now to the subjective component of the inquiry –

whether BOP acted with deliberate indifference.

       “Deliberate indifference is more than mere negligence, but

less than acts or omissions done for the very purpose of causing

harm   or     with    knowledge       that    harm       will   result.”      Scinto   v.

Stansberry,      841       F.3d     219,    225    (4th     Cir.    2016)      (internal

quotation marks and alterations omitted).                          A prison official

acts with deliberate indifference if he “knows of and disregards

an excessive risk to [the inmate’s] health or safety.”                           Farmer,

511 U.S. at 837.           “Put differently, the plaintiff must show that

the official was aware of facts from which the inference could

be drawn that a substantial risk of serious harm existed and

drew   that     inference.”           Scinto,      841     F.3d    at   225    (internal

quotation marks and alterations omitted).

       The district court rejected Heyer’s medical-care claims on

the first prong of the standard, and the court therefore did not

address     whether       Heyer’s    evidence      was    sufficient     to    establish

deliberate     indifference.           BOP    argues,       however,     that    Heyer’s

evidence is insufficient.                  In BOP’s view, Heyer presented no

evidence showing that BOP officials “knew that by not providing

Heyer an interpreter during his medical evaluations, . . . he

                                             17
was unable to communicate with medical staff to the extent there

existed     a    substantial          risk    of     serious       harm    to    his    health.”

Brief of Appellee at 51.                BOP notes that it provided Heyer with

an inmate interpreter to facilitate Heyer’s communication, and

it   contends          there     is     no     evidence        showing          it    knew   that

communicating          through    the        inmate    companion          was    insufficient.

Again, we disagree.

      BOP has been aware of Heyer’s deafness since he arrived at

Butner     in    2008,    and     the    record       establishes          that      Heyer   made

multiple requests for ASL interpreters and repeatedly informed

prison officials of his inability to understand.                                     Indeed, the

fact that BOP assigned Heyer an inmate companion is itself some

evidence        that    BOP     knew     that        Heyer     could       not       effectively

communicate on his own.

      Contrary to BOP’s argument, the decision to provide Heyer

with the inmate companion does not insulate it from a finding of

deliberate indifference.                As we have made clear, the mere fact

that prison officials provide some treatment does not mean they

have provided “constitutionally adequate treatment.”                                    De’lonta

v.   Johnson,      708    F.3d        520,    526     (4th   Cir.      2013).          While   “a

prisoner does not enjoy a constitutional right to the treatment

of   his   or    her     choice,       the    treatment        a   prison       facility     does

provide must nevertheless be adequate to address the prisoner’s

serious medical need.”             Id. (footnote omitted).

                                                18
     In our view, Heyer’s summary-judgment evidence is more than

sufficient to support a finding that BOP knew that communication

through the inmate companion was inadequate.                           As noted above,

the inmate companion assigned to Heyer did not know ASL.                                   The

inappropriateness       of    using   an    interpreter          who    did    not    speak

Heyer’s language is obvious, and that very obviousness could

support   a    factfinder’s      conclusion          that   BOP    knew       the    inmate

companion was inadequate.            See Farmer, 511 U.S. at 842 (“Whether

a prison official had the requisite knowledge of a substantial

risk is a question of fact subject to demonstration in the usual

ways, including inference from circumstantial evidence, and a

factfinder     may    conclude    that      a    prison       official        knew    of    a

substantial risk from the very fact that the risk was obvious.”

(citation omitted; emphasis added)).

     Moreover, Heyer’s evidence shows that BOP officials did in

fact know that the communication through the inmate companion

was inadequate.         Dr. Andres Hernandez, BOP’s psychologist in

charge of Heyer’s treatment, refused to permit the use of the

inmate    companion     “in    the    formal         provision     of    [CT     Program]

treatment services.”          J.A. 1276.        As Dr. Hernandez explained in

his deposition, he found the inmate companion to be “inadequate

to   conduct    treatment,”       J.A.      1117,       and      believed      qualified

interpreters     were    “imperative”           to     “insure     that       there    was

accurate,     reliable       understanding,”          so    as    to    “maintain          the

                                           19
adequacy of treatment, the effectiveness of treatment.”                                   J.A.

1117;    see    also        J.A.    1123     (Hernandez        “cannot         meaningfully

communicate     with        Mr.    Heyer    without    interpreters”);           J.A.     1294

(affidavit of another psychologist involved in Heyer’s treatment

stating that “the use of qualified ASL interpreters is necessary

in general for Heyer to progress through the [CT Program]”).

       This    evidence       shows    BOP’s       knowledge       of    all   the   factual

premises      underpinning          Heyer’s        deliberate-indifference            claim:

BOP knew that Heyer was deaf and needed ASL interpreters to

communicate;         BOP      knew         that      “accurate”          and     “reliable”

communication         was     necessary        for     Heyer’s          treatment    to    be

effective;      and     BOP        knew     that     the     inmate        companion      was

“inadequate” to ensure understanding.                      While Dr. Hernandez may

have    been     speaking           specifically        to     Heyer’s          psychiatric

treatment,      his     views       about     the     inadequacy          of   the    inmate

companion      are    equally        applicable       to     the    treatment        of   his

physical health issues.               From this evidence, a factfinder could

reasonably conclude that BOP was deliberately indifferent, as it

knew that its failure to provide ASL interpreters during Heyer’s

medical interactions created a substantial risk of serious harm

to his health.         See Farmer, 511 U.S. at 837 (A prison official

acts with deliberate indifference if he “knows of and disregards

an excessive risk to inmate health or safety.”); Scinto, 841

F.3d at 226 (explaining that “a prison official’s failure to

                                              20
respond to an inmate’s known medical needs raises an inference

of deliberate indifference to those needs” (internal quotation

marks and alterations omitted)).

                                         C.

     Accordingly, for the reasons outlined above, we conclude

that Heyer’s evidence, when accepted as true, is sufficient to

satisfy    the      objective     and    subjective     components       of     the

deliberate-indifference inquiry.              The district court therefore

erred by granting summary judgment in favor of BOP on Heyer’s

claim   that     BOP    failed   to    provide   him   with   constitutionally

adequate medical care.

                                        IV.

     We    turn   now    to   Heyer’s    First   Amendment     claims.        Heyer

contends    that,      despite   his    confinement,    he    retains    a    First

Amendment right to communicate with those outside the prison.

And given the evidence establishing his inability to communicate

in written English, Heyer argues that BOP’s failure to provide

him with access to a videophone improperly restricts his First

Amendment rights under the four-factor analysis set out by the

Supreme Court in Turner v. Safley, 482 U.S. 78 (1987).                       In the

alternative, Heyer argues that, even if BOP’s reliance on the

TTY device were adequate, BOP has failed to provide reasonable

access to the TTY device.

                                         A.

                                         21
        Courts have generally concluded that the First Amendment

rights    retained            by      convicted       prisoners    include       the    right      to

communicate with others beyond the prison walls.                                      See, e.g.,

Yang v. Missouri Dep’t of Corr., 833 F.3d 890, 894 (8th Cir.

2016) (The rights retained by a convicted prisoner “include the

right    to    communicate             with     persons    outside       the    prison      walls,

subject       to       regulation         that     protects      legitimate          governmental

interests.”); Pope v. Hightower, 101 F.3d 1382, 1385 (11th Cir.

1996)     (concluding              that      convicted    prisoners        retain      a    “First

Amendment          right         to    communicate       with     family       and     friends”);

Washington          v.       Reno,      35     F.3d     1093,     1100    (6th       Cir.      1994)

(recognizing           that       “persons      incarcerated       in    penal       institutions

retain their First Amendment rights to communicate with family

and friends”); Morgan v. LaVallee, 526 F.2d 221, 225 (2d Cir.

1975) (“A prison inmate’s rights to communicate with family and

friends are essentially First Amendment rights subject to § 1983

protection         .     .   .     .”).       As   a    civil    detainee      rather       than    a

convicted prisoner, Heyer’s First Amendment rights are at least

as broad as those retained by convicted prisoners.

        BOP does not dispute that Heyer retains rights under the

First Amendment that are implicated by the challenged policies.

Indeed,       it       explicitly            agrees     that    “[t]he     First       Amendment

protects       an       inmate’s          right    to    communicate       with       family    and

friends.”          Brief of Appellee at 15.                    Instead, BOP contends that

                                                   22
its refusal to provide Heyer with his communication method of

choice -- a videophone -- did not infringe his First Amendment

rights,    such   that   there   is    no    occasion   to   apply   the     Turner

factors.     BOP alternatively argues that if application of the

Turner factors is required in this case, its refusal to provide

a videophone is nonetheless proper.

                                        B.

     In Turner v. Safley, the Supreme Court concluded that a

prison     policy   or    regulation         that   “impinges       on     inmates’

constitutional rights . . . is valid if it is reasonably related

to legitimate penological interests,” 482 U.S. at 89, and the

Court identified four factors to consider when determining the

reasonableness of the policy, id. at 89-91.              Accordingly, as BOP

argues, consideration of the Turner reasonableness factors is

required only if the prison policy “impinges” on Heyer’s First

Amendment rights.

     BOP    contends     that    the    record      shows    that        Heyer   can

communicate with those outside the prison through use of the TTY

device, and that Heyer’s First Amendment rights are therefore

satisfied by the access BOP provides to the TTY.                          BOP thus

argues that its TTY policy does not impinge on Heyer’s First

Amendment rights, and that Heyer’s demand for a better way to

communicate is not a viable constitutional claim.               We disagree.



                                        23
     BOP’s     argument       that    Heyer        can    effectively      communicate

through the TTY device is based on a highly selective reading of

the record.        As previously discussed, the TTY device utilizes a

keyboard     and    permits     the    transmission            of    written     messages

between TTY users; effective communication over a TTY device

therefore    requires     proficiency         in    written         English.      Heyer’s

evidence,    however,     establishes     that           he   has    extremely    limited

proficiency    in    English    and    cannot       communicate         effectively    in

written English. 7      While BOP points to evidence suggesting that

Heyer might sometimes, under certain circumstances, be able to

communicate effectively through writing, 8 that evidence is not

entitled to the dispositive effect that BOP assigns to it.                            The

procedural posture of this case requires us to view the evidence

in the light most favorable to Heyer, which means that we must

     7  See Expert Report, J.A. 350 (“Heyer . . . cannot
communicate effectively in written English.”); id., J.A. 372
(Heyer’s “proficiency in English (speech, lip-reading and
reading and writing) is severely limited); id., J.A. 355
(“American   Sign  Language   is   structurally  different  from
English,” and its “lexicon and syntactic structure [are] quite
unlike that of spoken English”); Heyer Deposition, J.A. 267 (“I
will write a note and, usually the person that’s reading it does
not understand what I’ve written because I write in ASL and
their language is English.”); id. (“My sentences are not in
English, so they do not understand what I’m saying.”).

     8  For example, Heyer’s expert suggested that written
communication might possibly be effective for Heyer if it
involved    “short  routine,   frequently    repeated   written
communications.” J.A. 378. In addition, Heyer testified in his
deposition that his brother could understand his emails.   J.A.
296.


                                         24
accept       as   true     the      evidence       showing          that    Heyer        cannot

communicate       effectively       through       written     English       and    therefore

cannot       communicate       effectively       through      the    TTY    device.            And

because the evidence establishes that Heyer cannot communicate

effectively through the only means that BOP makes available to

him, we cannot accept BOP’s assertion that its TTY-only policy

does not impinge on Heyer’s First Amendment right to communicate

with those outside the prison.

                                             C.

       Given our conclusion that BOP’s policy impinges on Heyer’s

First Amendment rights, we must determine whether that policy

“is reasonably related to legitimate penological interests,” as

required by Turner.              482 U.S. at 89.             As explained in Turner,

the    reasonableness          of   the    policy      depends       on    (1)    whether        a

“valid,       rational         connection        [exists]      between           the     prison

regulation and the legitimate governmental interest put forward

to justify it,” (2) whether “alternative means of exercising the

right    [exist]    that       remain     open    to    prison      inmates,”          (3)    what

“impact accommodation of the asserted constitutional right will

have    on    guards     and    other     inmates,      and   on     the    allocation          of

prison       resources     generally,”       and       (4)    whether      there        was    an




                                             25
“absence of ready alternatives” to the regulation in question.

Id. at 89-90 (internal quotation marks omitted). 9

                                       1.

      We    first   consider    whether       there   is   a    “valid,    rational

connection    between   the     prison    regulation       and    the    legitimate

governmental interest put forward to justify it.”                        Id. at 89

(internal quotation marks omitted).               “[A] regulation cannot be

sustained where the logical connection between the regulation

and   the    asserted    goal     is     so    remote      as    to     render   the

policy arbitrary or irrational.”            Id. at 89-90.

      BOP    contends    that    its      TTY-only      policy        furthers   its

legitimate interest in maintaining prison security.                       According

to BOP, videophones create security issues not presented by the

TTY system, such as the possibility of a video recording of the




      9The Supreme Court in Turner v. Safley was considering
whether a prison policy improperly restricted the First
Amendment rights of a convicted prisoner rather than a civil
detainee. See 482 U.S. 78, 81-84 (1987). Some courts have made
modifications to the Turner factors to reflect the differences
between convicted prisoners and detainees. See, e.g., Brown v.
Phillips, 801 F.3d 849, 853 (7th Cir. 2015) (concluding that in
case involving civil detainee, Turner requires that challenged
policy “must be rationally connected to the state’s interests --
here, security and the rehabilitation and treatment of sexually
violent persons”). Because Heyer does not suggest that any such
adjustments should be made in this case and we conclude that his
claims are viable under the Turner factors as originally
formulated, we need not decide whether adjustments should
generally be made in cases involving civil detainees.


                                       26
conversation being posted on the Internet.                  In addition, BOP

contends that

      [w]ith video communications, it is more difficult to
      prevent sexually illicit acts from occurring, or
      controlling who or what the inmate can see on the
      other end of the video monitor (i.e., children or
      prior victims). Such calls would likely require
      attentive and continuous live monitoring, and even if
      staff did observe sexually inappropriate conduct over
      the video monitor, the act may be committed before the
      staff member has an opportunity to terminate the call
      (e.g., indecent exposure to child).

Brief of Appellee at 21-22 (citation omitted).

      BOP   also   argues     that   it    has    a   legitimate    interest   in

monitoring all inmate communication and that its TTY-only policy

is rationally related to that interest.                BOP currently monitors

inmate telephone calls through the secure BOP Inmate Telephone

System, and BOP contends that the system cannot accommodate a

videophone “without the development and funding of a separate

and   secure    Information    Technology        infrastructure.”      Brief   of

Appellee at 21.

      There is no doubt that BOP has a legitimate interest in

maintaining the security of its facilities and in protecting the

public   from    further    criminal      acts   by   inmates   and   detainees.

Nonetheless, there are reasons that a factfinder might question

the legitimacy of the particular security risks asserted in this

case.




                                       27
       As to BOP’s insistence that videophone conversations must

go through its secure Inmate Telephone System, we note that the

TTY system currently in place operates on an unsecured line in a

private staff office.             Given BOP’s current willingness to let

Heyer place TTY calls through an unsecured line unconnected to

the Inmate Telephone System, a factfinder could question BOP’s

sudden insistence that videophone calls be part of the System.

       And   while   BOP       argues    that   maintaining            the   security   of

videophone conversations would require “attentive and continuous

live   monitoring,”       Brief     of    Appellee       at    21,     the   current    TTY

system already requires continuous staff monitoring.                              The TTY

device is in a private office with a computer and other staff

equipment,     and    a    prison       official   is         always    present    during

Heyer’s use of the TTY device.                  Because the monitoring of a

videophone conversation would be no more demanding of staff time

than the monitoring of the TTY conversations that is already

being done, the factfinder could question whether a videophone

system would in fact present the difficulties asserted by BOP.

       Nonetheless,       we   recognize    that     a    videophone         conversation

presents certain risks not present with TTY conversations, such

as the possibility of a video of the conversation being posted

on the Internet or the possibility that an inmate might expose

himself to the person on the other end of the conversation.                              A

ban on videophones prevents these situations from occurring, and

                                           28
thus the ban bears at least some connection to BOP’s legitimate

interest in maintaining security and protecting the public.                                     As

we    will     explain,     however,      questions        of     fact       arise    under     the

other        Turner   factors       as    to        the    reasonableness             of      BOP’s

videophone ban.            See Jehovah v. Clarke, 798 F.3d 169, 178-79

(4th    Cir.     2015)     (reversing       grant         of    summary       judgment        under

Turner even though challenged policy bore some connection to the

penological interests asserted by the defendants).

                                               2.

       The second Turner factor requires us to consider whether

Heyer    has     alternate        means    of       exercising          the    constitutional

right.        “Where other avenues remain available for the exercise

of the asserted right, courts should be particularly conscious

of     the    measure      of     judicial      deference             owed    to     corrections

officials in gauging the validity of the regulation.”                                      Turner,

482     U.S.     at   90     (citation,         internal          quotation          marks,     and

alteration       omitted).          BOP   contends             that    alternate       means     of

communicating with those outside Butner are available to Heyer -

-    specifically,         TTY,    email,      written          letters,       and     in-person

visits.        Because other means of communication remain available

to Heyer, BOP contends the ban on videophones is reasonable.                                    We

disagree.

       With     the   exception      of    in-person            visitation,        all     of   the

alternate means of communication identified by BOP involve the

                                               29
use of written English.            As we have already explained, however,

the     record      contains       evidence       establishing           that     Heyer’s

proficiency with English is severely limited and that he cannot

effectively       communicate      in     written    English.        Although       Heyer

presumably would be able to communicate through ASL with those

who     visit     him    at     Butner,     the     availability         of     in-person

visitation is of little help in emergencies or other situations

where there is a need for immediate contact.                        Accordingly, we

believe that Heyer’s evidence, which must be accepted as true,

would permit a factfinder to conclude that no other effective

means of communication are available to Heyer.

                                           3.

      The     third     factor   we     must    consider    under    Turner       is   the

effect that “accommodation of the asserted constitutional right

will have on guards and other inmates, and on the allocation of

prison resources generally.”              Id. at 90.       “When accommodation of

an asserted right will have a significant ‘ripple effect’ on

fellow inmates or on prison staff, courts should be particularly

deferential        to     the     informed        discretion        of        corrections

officials.”       Id.

      BOP contends the effect of accommodating Heyer’s request

would    be     significant.       BOP     claims    it    would    be     required    to

“develop and fund a separate and secure IT infrastructure in

order to monitor and record each videophone call on an agency-

                                           30
wide basis,” Brief of Appellee at 24 (emphasis added), and that

it would cost nearly $2 million to install videophones at all of

its 119 institutions.             Moreover, monitoring the substance of a

videophone conversation would require the services of an ASL

interpreter, which further increases the costs to BOP.

       Again,      however,       Heyer’s         evidence     precludes         us   from

concluding that the effect of accommodating Heyer’s needs would

be so great that the videophone ban is reasonable as a matter of

law.     As previously noted, the TTY device currently used by

Heyer operates through an unsecured telephone line that is not

part   of    the    Inmate     Telephone      System,      and   BOP   is   apparently

satisfied that the risks associated with the use of unsecured

line are manageable.            This evidence thus creates questions of

fact   about       BOP’s   assertion        that    a   videophone     would      require

creation of a new, secure IT infrastructure.

       BOP    also      insists       that    any       accommodation       should     be

implemented        on   what   would    be    a     very     expensive,     system-wide

basis.       However, nothing in the record indicates why a system-

wide solution would be required, and Heyer’s evidence shows that

a videophone could be installed in Butner (presumably using the

same   unsecured        line   used    by    the    TTY    device)     at   de    minimis




                                             31
expense       to        the    government. 10             And     while       the     videophone

conversations           would    require          live   monitoring          by   prison     staff,

that should not be a significant additional burden, as prison

staff already monitor Heyer’s TTY calls.

       In light of this evidence, a factfinder could conclude that

accommodating Heyer’s needs would have minimal effect on guards

or other inmates or on the prison’s allocation of resources,

thus        raising       questions          about       the    reasonableness             of     the

videophone ban.

                                                   4.

       Finally, Turner requires us to consider whether there are

“ready alternatives” to the challenged policy.                                Turner, 482 U.S.

at 90.       As the Court explained, “the existence of obvious, easy

alternatives            may    be    evidence           that    the     regulation         is     not

reasonable, but is an exaggerated response to prison concerns.”

Id.    (internal         quotation      marks        omitted).          Although       the      Court

cautioned          lower      courts        not    to     treat       this    factor       as     the

equivalent         of    the    “least       restrictive          alternative         test,”      the

Court       held     that      “if     an     inmate      claimant       can      point      to    an

alternative that fully accommodates the prisoner’s rights at de

minimis       cost       to    valid        penological        interests,         a   court       may

       10
        Heyer’s evidence indicates that BOP could obtain the
necessary equipment and software for “no cost or modest cost.”
J.A. 663. Even under BOP’s estimate, establishing a stand-alone
videophone system at Butner would cost no more than $2500.


                                                   32
consider that as evidence that the regulation does not satisfy

the reasonable relationship standard.”                       Id. at 90-91 (internal

quotation marks omitted).                   In this case, there is significant

evidence of ready alternatives to BOP’s ban on videophones.

       As     Heyer     notes,       the     regular      inmate     telephone        system

presents      security       risks     --   for     example,   inmates     can       use   the

phone to direct or commit crimes, and the call recipient can

record and post the call on the Internet.                      Those risks, however,

have    not    driven     BOP     to   ban     telephones;     instead,         it   handles

individual problems as they arise, suspending usage rights for

offending inmates and taking other appropriate action.                               Nothing

in     the    record     suggests       that        the   security      risks    posed     by

videophones are so qualitatively different that they can only be

managed by banning videophones.                      Indeed, the record shows that

many of the security risks associated with a videophone could be

minimized by simply setting it up in a secure office, as the TTY

device is.       Access to the videophone could be restricted to deaf

inmates, and any abuses of the system could be handled on a

case-by-case basis, as they are with the inmate phone system.

       Moreover, Heyer’s evidence establishes that videophones are

in many ways more secure than TTY devices.                              The TTY device

requires      the     user   to   have      physical      access   to    the    equipment,

while the equipment for a videophone system -- which is little

more than a camera connected to a desktop computer -- can be set

                                               33
up in a way that the detainee has no access to it.                            Basic

software packages permit videophones to be password-protected to

prohibit      unauthorized    access;    TTY     devices     are    not   password-

protected.      Moreover, videophone conversations can be digitally

recorded, encrypted, and stored electronically.                      By contrast,

the record of TTY conversations is printed out by the device

itself, thus making it possible for an inmate to grab the print-

out and destroy the record of his conversation.

      Given Heyer’s evidence of the minimal cost of a videophone

and the ease with which security concerns could be mitigated, we

believe that a factfinder could reasonably conclude that BOP’s

refusal to provide a videophone is an exaggerated response to

the perceived security concerns.               The district court therefore

erred    by   granting    summary     judgment    to   BOP    on    Heyer’s   First

Amendment      videophone    claim.      See     Jehovah,     798    F.3d   at   179

(reversing grant of summary judgment because jury could find

prisoner’s proposed alternatives to be so “obvious and easy” as

to show that total ban on wine was an “exaggerated response”

(internal quotation marks omitted)).

                                        D.

        Independent of his videophone claim, Heyer also claims that

BOP     violated    his     First   Amendment      rights      by    unreasonably

restricting his access to the TTY device.                    The district court

summarily rejected that claim, concluding that Heyer had proved

                                        34
“at    most    isolated       instances         of    being    unable      to    use    the     TTY

immediately upon [his] request.”                      J.A. 145.         We agree with Heyer

that the record precludes a grant of summary judgment on this

claim.

       Heyer     filed       a     verified       complaint,        which        is    the    “the

equivalent       of     an       opposing       affidavit         for    summary        judgment

purposes.”           World    Fuel       Servs.      Trading,     DMCC    v.     Hebei       Prince

Shipping       Co.,    783       F.3d    507,     516      (4th   Cir.     2015)       (internal

quotation      marks       omitted).         In      his    complaint,      he    states       that

access to the TTY is “regularly restricted or denied,” J.A. 40,

and    that      prison          staff     “consistently          den[ies        him]        access

altogether without justification,” J.A. 41.                             If the few trained

staff members “are away for training or on vacation,” Heyer is

“unable to access the TTY at all.”                         J.A. 41.      In his deposition,

Heyer confirmed the difficulties in getting access to the TTY,

with   it     sometimes       taking       days      before    access     is     granted,       and

staff sometimes failing to follow up on the request at all.

Heyer also testified that he has never been able to use the TTY

on nights or weekends.

       While we do not suggest that the Constitution requires deaf

inmates to have precisely the same access to TTY devices other

inmates       have    to     telephones,        we     believe     that     this       evidence,

accepted as true, shows a sufficiently serious interference with

Heyer’s rights to communicate beyond Butner’s walls to support a

                                                35
First Amendment claim.              Cf. Washington, 35 F.3d at 1100 (“[A]

prisoner’s       right    to   telephone          access    is    subject       to   rational

limitations in the face of legitimate security interests of the

penal institution.” (internal quotation marks omitted)).

      As    to    the    Turner    factors,        we   believe     questions        of    fact

preclude the grant of summary judgment.                          Heyer alleges in his

complaint        that    access    to   the       TTY   was      often    denied     without

justification, and a factfinder could certainly conclude that

arbitrary        interference       with      a     detainee’s          exercise     of    his

constitutional          rights     is     not      “reasonably          related”     to    any

“legitimate penological interests.”                        Turner, 482 U.S. at 89;

cf.   Benzel      v.    Grammer,    869    F.2d      1105,       1108    (8th    Cir.     1989)

(“Although in some instances prison inmates may have a right to

use the telephone for communication with relatives and friends,

prison officials may restrict that right in a reasonable manner

. . . .”).        Moreover, the record establishes the availability of

ready alternatives to BOP’s current inconsistent and inadequate

approach to access, including the largely cost-free option of

training more staff members on the use of the TTY, so as to give

Heyer more access to the TTY on nights and weekends.                                  Because

there      are    questions       of    fact       on      issues       relevant     to    the

application of the Turner factors, we conclude that the district

court erred by granting summary judgment against Heyer’s claim

that he was unreasonably denied access to the TTY device.

                                            36
                                            V.

      The   district       court    rejected      Heyer’s        remaining     claims    by

focusing on, at least in part, BOP’s post-litigation conduct and

assertions that it would provide the relief Heyer was seeking.

See J.A. 137 (rejecting Fifth Amendment claim (Count II) based

on failure to provide ASL interpreters for the mental health

treatment provided through the CT Program because BOP stated

that it would provide interpreter services for future individual

therapy sessions); J.A. 143-44 (dismissing Fifth Amendment claim

(Count VII) based on BOP’s failure to provide visual alarms and

other    items   necessary        to    alert    Heyer      to   emergencies        because

BOP’s post-litigation safety improvements were sufficient); J.A.

145-46    (dismissing       as    moot    Heyer’s     RFRA       and   First    Amendment

claims    (Counts     IX    and    X)    based   on    BOP’s      failure      to   provide

interpreters for religious services because BOP stated that it

would    begin   providing        interpreters        for    religious      services     on

request).     Heyer argues on appeal that the district court erred

by relying on BOP’s voluntary, post-litigation actions to reject

his claims.      We agree.

                                            A.

        The district court dismissed Counts IX and X as moot based

on BOP’s stated intent to provide the requested relief in the

future.     The court explained that BOP’s voluntary cessation of

the      challenged        action       mooted      the      claims      because        BOP

                                            37
“unequivocally          state[s]     that    [Heyer]         will    be   provided,      upon

request, with a qualified interpreter for religious ceremonies

and programs,” such that “there is no reasonable expectation

that the alleged violation will recur and [BOP’s] solution will

completely     and      irrevocably        eradicate      any       burden    the    lack    of

interpreters formerly placed on [Heyer’s] exercise of religion.”

J.A. 146 (internal quotation marks omitted).

       “It   is      well     established         that       a    defendant’s voluntary

cessation     of    a    challenged        practice      moots      an    action     only   if

subsequent events made it absolutely clear that the allegedly

wrongful behavior could not reasonably be expected to recur.”

Wall   v.    Wade,      741   F.3d    492,    497     (4th        Cir.    2014)     (internal

quotation     marks      omitted).          “[W]hen      a       defendant     retains      the

authority and capacity to repeat an alleged harm, a plaintiff’s

claims should not be dismissed as moot.”                            Id.      BOP bears the

“heavy burden” of showing that “the challenged conduct cannot

reasonably     be       expected     to    start    up    again.”            Id.    (internal

quotation marks omitted).                 “[B]ald assertions of a defendant --

whether governmental or private -- that it will not resume a

challenged policy fail to satisfy any burden of showing that a

claim is moot.”          Id. at 498.

       When dismissing these counts, the district court relied on

BOP’s assurance of interpreters contained in a 2014 affidavit

from a BOP chaplain which states that “BOP will provide . . .

                                             38
inmates with a qualified interpreter . . . if necessary for

effective      communication              during          religious        ceremonies       or

programs.”     J.A. 343.          BOP contends this assurance is sufficient

to   support   the    district           court’s         ruling   because      BOP   has   “no

policy   or    practice       .    .     .    that       prevents       deaf   inmates     from

receiving interpreters for the purpose of attending religious

programming.”        Brief of Appellee at 60.                     Thus, in BOP’s view,

the chaplain’s assurance that interpreters would be provided is

simply a “recommit[ment] to a preexisting practice of providing

interpreters.”       Id. at 61.          We disagree.

      Regardless        of    whether              BOP     has     previously        provided

interpreters for other deaf inmates, the record here establishes

(for summary-judgment purposes) that BOP has not provided Heyer

with interpreters for religious services.                           See J.A. 403, 408.

Accordingly, given our standard of review and BOP’s burden of

proof, the chaplain’s affidavit cannot be viewed as a statement

of current policy, but must instead be understood as a mid-

litigation     change    of       course.          Viewed     through      that   lens,    the

chaplain’s     statement          does       not    support       the    district    court’s

decision to dismiss these claims as moot.                         Even if we ignore the

equivocation inherent in the promise to provide interpreters “if

necessary,” the statement amounts to little more than a “bald

assertion[]” of future compliance, which is insufficient to meet

BOP’s burden.      Wall, 741 F.3d at 498.

                                               39
       Moreover, as previously discussed, BOP in 2012 announced

that it would provide ASL interpreters for Heyer’s scheduled

medical appointments.        Since that time, however, Heyer has had

at least two scheduled medical appointments where no interpreter

was    provided.     Because      the   record   establishes    that   BOP   has

already    failed    to    live    up   to    its   promises    regarding     the

provision of ASL interpreters, the record does not require us to

conclude    that    “the   challenged        conduct   cannot   reasonably    be

expected to start up again.”              Id. at 497 (internal quotation

marks omitted).       Under these circumstances, the district court

erred by concluding that BOP’s assertion that it would begin

providing interpreters rendered Counts IX and X moot.

                                        B.

       In Count VII, Heyer challenged BOP’s failure to provide

visual alarms and other items, such as pagers, vibrating beds,

or vibrating watches, necessary to alert Heyer to emergencies.

After noting in its factual summary that BOP in 2014 (almost

three years after the commencement of this action) had installed

a strobe light in the cell to which Heyer was assigned, see J.A.

128, the district court granted summary judgment against the

claim because Heyer was “seek[ing] more safety measures than

those [BOP has] implemented rather than arguing that [BOP has]

failed to provide [him] with any safety measures at all.”                    J.A.

143.

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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

       11In an affidavit filed with BOP’s summary-judgment
materials, the manager of the prison unit where Heyer is
assigned stated that Heyer would remain in one of the four cells
“[a]bsent any exigent circumstances.”      J.A. 216.    Butner’s
warden, however, stated in his deposition that regular rotation
of inmates to different cells is a “good correctional practice”
that he would not rule out implementing in the future.      J.A.
707.


                                          41
receiving the treatment.             The court nonetheless granted summary

judgment against the claim, observing that BOP had agreed to

provide     ASL   interpreters        for     Heyer’s      participation      in    most

aspects of the CT Program and concluding that the denial of

interpreters      for       the    first     few    months    after     Heyer      began

participating in the CT Program did not amount to a cognizable

constitutional injury.            See J.A. 137.

     Even    if   we    accept      the    district     court’s    conclusion       that

BOP’s initial failure to provide interpreters is not significant

enough, on its own, to establish a constitutional violation,

Heyer’s claim is not concerned with seeking damages for past

constitutional      wrongs.          Instead,      Heyer   seeks    a   court      ruling

that,   because     the     length    of     his   confinement     is   dependent     in

large part on BOP’s assessment of his mental health, BOP is

constitutionally obliged to provide interpreters for all aspects

of   the    mental-health          treatment       it   offers     to    Adam      Walsh

detainees,    and      he   also     seeks    an   injunction      ordering     BOP   to

provide     the   necessary        interpreters.           BOP’s    post-litigation

decision to provide interpreters for some aspects of Heyer’s

treatment clearly provides no basis for rejecting Heyer’s claim

on the merits.       Accordingly, we conclude that the district court

erred by granting summary judgment in favor of BOP on Count II.




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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), safe-

environment claim (Count VII), and videophone- and TTY-related

First Amendment claims (Count VIII).              We therefore vacate the

district court’s order granting summary judgment in favor of BOP

as to those claims, and we remand those claims for trial.

     As to Counts II, IX, and X, we conclude that the district

court     erred   by   giving     dispositive     effect      to     BOP’s    post-

litigation assurances that it would provide the ASL interpreters

Heyer requested.       We therefore vacate the district court’s order

granting    summary    judgment    in    favor   of   BOP   on     Count     II   and

dismissing Counts IX and X as moot.               On remand, the district

court may re-evaluate the merits of these claims in light of the

evidence presented by the parties, but the court may not give

dispositive       effect    to     BOP’s      assurances      that       qualified

interpreters will be provided.

     Finally, because Heyer does not challenge it on appeal, we

affirm the district court’s dismissal of Count III.

                                                            AFFIRMED IN PART,
                                                             VACATED IN PART,
                                                                 AND REMANDED




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