NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 17, 2008*
Decided July 29, 2008
Before
JOEL M. FLAUM, Circuit Judge
DIANE P. WOOD, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 08‐1434
TERRANCE J. SHAW, Appeal from the United States District
Plaintiff‐Appellant, Court for the Eastern District of Wisconsin.
v. No. 05‐C‐872
MATTHEW J. FRANK, et al., J.P. Stadtmueller,
Defendants‐Appellees. Judge.
O R D E R
Wisconsin inmate Terrance Shaw sued various prison officials under 42
U.S.C. § 1983, claiming a host of constitutional violations in connection with his denial of
parole. See Wilkinson v. Dotson, 544 U.S. 74, 81‐82 (2005) (permitting challenges to state
parole procedures under § 1983). The district court denied his request for counsel,
dismissed three of his claims for failure to exhaust the grievance process, and ultimately
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2).
No. 08‐1434 Page 2
granted summary judgment in favor of the defendants. Shaw challenges each of these
rulings. We affirm in all respects.
Shaw is currently serving a life sentence plus twenty years for rape and murder. In
the hopes of someday attaining parole, Shaw participated in the Sex Offender Treatment
Program (SOTP). But prison doctors expelled Shaw from SOTP in 1999 on the grounds that
he had refused to participate fully and had failed to acknowledge the seriousness of his
crimes and violent sexual tendencies. Four years later, Shaw’s therapist noted a marked
improvement in “self‐disclosure and feedback.” His therapist stopped short of any
treatment recommendation, though, because “[a]ny final treatment decisions should also
include physiological measures of current sexual deviancy.”
In light of his therapist’s suggestion, Shaw requested a penile plethysmograph
procedure, which the Wisconsin Department of Corrections uses to measure sexual arousal
in response to suggestive content. Prison officials construed Shaw’s request as an
application for re‐enrollment in the SOTP program—the procedure is typically
administered as part of the program—and denied the request because “priority is given to
inmates who have not yet been afforded their first opportunity” to participate in SOTP.
Shaw responded with a grievance in which he clarified that he had not requested re‐
enrollment in the “3 to 4 years Sex Offender Treatment Program.” Shaw explained:
All I (very clearly) requested . . . was for them to hook me up to their
plythismalgraph [sic] that they have housed over there in K‐Building. . . .
Measuring my current sexual deviancy on this plythismalgraph [sic] only
takes an hour or two.
Prison officials ultimately dismissed Shaw’s grievance because he had not articulated any
violations of law or prison regulations in connection with the denial of his request.
After he was denied parole for reasons that included unsatisfactory participation in
SOTP, Shaw sued various prison officials under § 1983, claiming, as relevant here, that the
defendants had refused his request for re‐enrollment in SOTP in violation of his right to
equal protection. Shaw also claimed that the unwritten requirement of SOTP completion
prior to parole violated the Ex Post Facto Clause because the program was not in place at
the time that Shaw was sentenced and the requirement of completion retroactively extended
his punishment. Finally, Shaw requested that the district court furnish him with counsel in
light of the complexity of the issues presented.
The district court denied Shaw’s motion for appointment of counsel, noting that
civil litigants do not have a right to counsel. See Pruitt v. Mote, 503 F.3d 647, 649, 656‐58 (7th
No. 08‐1434 Page 3
Cir. 2007) (en banc). While the court acknowledged that Shaw had been unable to recruit
counsel, the court concluded that the legal issues he presented were “straightforward and
uncomplicated.” Moreover, the court reasoned, Shaw’s extensive filings showed that he
was capable of litigating his case. In any event, the court wrote, the presence of counsel
would not likely affect the outcome of Shaw’s case.
The court also dismissed Shaw’s equal‐protection claim for failure to exhaust his
administrative remedies. See 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 83‐92 (2006).
The court reasoned that Shaw’s grievance asked for only the plethysmograph
procedure—not reinstatement in SOTP—and thus could not have put prison officials on
notice of his desire to return to SOTP.
Finally, the district court granted summary judgment in favor of the defendants on
Shaw’s ex post facto claim because Shaw had not identified any “law” requiring him to
complete SOTP before he could be released on parole. Given Shaw’s sentence of life
imprisonment, the court wrote, he enjoyed no entitlement to mandatory release under
Wisconsin law, and parole in Wisconsin is a matter of discretion to which the Ex Post Facto
Clause does not apply.
On appeal Shaw contends that the district court erred in finding that he failed to
exhaust his administrative remedies with respect to his equal‐protection claim. We review
de novo a district court’s determination of failure to exhaust. Dole v. Chandler, 438 F.3d 804,
809 (7th Cir. 2006). Exhaustion is a modest requirement: “All the grievance need do is object
intelligibly to some asserted shortcoming” so that prison officials can remedy the problem
before facing a lawsuit. Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002); see Ngo, 548 U.S. at
89. Shaw argues that his grievance amounted to a request for re‐enrollment because the
procedure sought is only available to SOTP participants. Any language to the contrary,
Shaw insists, sought to clarify only that he did not wish to start the program anew but
rather pick up where he left off in 1999—two units short of completion. Yet a plain reading
of the grievance makes clear that Shaw asked for the procedure and nothing more. Shaw
explicitly instructed prison officials that his request did not pertain to SOTP. Accordingly,
we agree with the district court’s conclusion that Shaw did not apprise the defendants of his
desire to re‐enter SOTP.
Next up is Shaw’s assertion that a genuine issue of material fact existed as to his ex
post facto claim. We considered—and rejected—an identical argument in Grennier v. Frank,
453 F.3d 442, 444‐45 (7th Cir. 2006). Grennier, a Wisconsin inmate serving a life sentence for
murder, argued that his sex‐offender designation and the requirement of treatment before
parole violated the Ex Post Facto Clause because it “hamper[ed] his chance for parole
release.” Id. at 444. We held, however, that any requirement of treatment was not a “law”
No. 08‐1434 Page 4
for purposes of the clause. Id. at 444‐45. Our opinion in Grennier identified the flaw in this
argument:
Defendants allow that Wisconsin has become less willing to release persons
convicted of serious offenses and now demands assurance that interests in
deterrence, desert, and public safety have been satisfied before a murderer
will be let free. Neither the ex post facto clause nor the due process clause has
anything to say about how discretion will be exercised under an open‐ended
system, however. See Blakely v. Washington, 542 U.S. 296, 308‐10, 124 S. Ct.
2531, 159 L.Ed.2d 403 (2004). . . . The constitutional interest is in the rules and
statutes—the “laws” to which it refers—rather than the attitudes of public
officials who administer a discretionary system. See Prater v. U.S. Parole
Commission, 802 F.2d 948 (7th Cir. 1986) (en banc). Parole officials who
become more concerned with public safety—and who act on that concern by
insisting that prisoners complete sex‐offender treatment programs before
release—do not violate the Constitution. See, e.g., McKune v. Lile, 536 U.S. 24,
122 S. Ct. 2017, 153 L.Ed.2d 47 (2002).
Id. at 445.
Finally, Shaw argues that the district court erred in denying him counsel. See 28
U.S.C. § 1915(e)(1). Civil litigants do not have a constitutional or statutory right to counsel,
though a court may, in its discretion, put out the call for a volunteer attorney to represent an
indigent plaintiff. Id.; see Johnson v. Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006). When
faced with a request to recruit counsel, a district court must consider whether the plaintiff
has made reasonable attempts to find counsel on his own and whether the plaintiff has
demonstrated an ability to litigate his case. See Pruitt, 503 F.3d at 654‐55. Any examination
of a plaintiff’s ability to prosecute his case must consider his “literacy, communication skills,
educational level, and litigation experience.” Id. at 655. We review a denial of a motion to
recruit counsel under § 1915(e)(1) for abuse of discretion coupled with prejudice. Hammer v.
Ashcroft, 512 F.3d 961, 971 (7th Cir. 2008); Pruitt, 503 F.3d at 658‐60. Our task on appeal,
then, begins with an examination of “whether the district court applied the correct legal
standard and reached a reasonable decision based on facts supported by the record.” Pruitt,
503 F.3d at 658.
There is no doubt that the district court applied the correct legal standard in rejecting
Shaw’s request for counsel. We conclude that it was a reasonable decision as well. Shaw
demonstrated his competence throughout the litigation. He submitted requests for
discovery, filed numerous motions, cited relevant case law, and made cogent legal
arguments. Five of his civil‐rights claims survived screening. See 28 U.S.C. § 1915A. We
No. 08‐1434 Page 5
detect no abuse of discretion in the decision to let him continue his litigation without the
support of an attorney. See Hammer, 512 F.3d at 971.
One final point warrants discussion. Shaw appears to raise a fourth issue in his brief
by posing the question, “Did Shaw present sufficient evidence to establish the denial of the
use of his new religious name placed a substantial burden on the practice of his religion?”
Shaw says nothing more, however, so he has waived this argument. See Campania Mgmt.
Co. v. Rooks, Pitts & Poust, 290 F.3d 843, 852 n.6 (7th Cir. 2002) (“Perfunctory and
undeveloped arguments are waived.”).
AFFIRMED.