Shaw, Terrance v. Smith, Judy, (7th Cir. 2006)
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UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 2, 2006 Decided November 6, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 06-2011
TERRANCE J. SHAW, Appeal from the United States District
Court for the Eastern District of
Plaintiff-Appellant,
Wisconsin
v. No. 04-C-979
JUDY SMITH and MATTHEW
William E. Callahan, Jr.
FRANK,
Magistrate Judge.
Defendants-Appellees.
ORDER
Terrance Shaw, an inmate at Oshkosh Correctional Institution (OCI),
appeals from the district court's order granting summary judgment to defendants
and dismissing his lawsuit under Title II of the Americans with Disabilities Act
(ADA), 42U.S.C. § 12131 et seq. and 42U.S.C. § 1983. Shaw asserts that OCI's
warden, Judy Smith, and the Secretary of the Wisconsin Department of
After an examination of 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).
Corrections, Matthew Frank, violated his rights under the ADA and the Equal Protection Clause by prohibiting him from participating in the prison's Youth Awareness Program because he is a sex offender. Shaw has failed to show either that he is disabled under the ADA or that the defendants' policy of excluding all sex offenders from the Youth Awareness Program lacks a rational basis. We affirm.
Shaw, who is serving a life sentence plus 20 years for the rape and murder of a female adult, asked to participate in the Youth Awareness Program in 2004. This program allows a select group of approximately twelve inmates to speak to young people (many of them from troubled backgrounds) about the dangers and consequences of crime. Shaw's request was denied because OCI has a policy prohibiting sex offenders from participating in this program. The defendants justify this policy on the ground that exposing children--who may have been victimized themselves or who may be at risk for delinquency--to sex offenders would be counterproductive. They also say that OCI's community partners in the Youth Awareness Program oppose the participation of sex offenders because of the high rate of recidivism among sex offenders and the tendency of sex offenders to exploit children.
A magistrate judge, presiding with the parties' consent, granted summary judgment to the defendants. The judge concluded that Shaw's status as a sex offender did not qualify as a disability under the ADA. The judge also concluded, after considering the defendants' justifications for their decision, that Shaw's equal protection claim failed because the decision to exclude sex offenders from the Youth Awareness Program was rationally related to the "legitimate penological concern of security." On appeal Shaw first argues that the magistrate judge erroneously rejected his argument that he was disabled under the ADA because the defendants regard him as having a disability. Shaw concedes here, as he did in the district court, that he does not actually have a physical or mental impairment as defined in the ADA, but he continues to insist that he qualifies as disabled under 42U.S.C.
§ 12102(2)(C), because he is regarded as having an impairment covered by the statute. However, the regulations implementing the ADA specify that "disability does not include . . . sexual behavior disorders," 28 C.F.R. § 35.104(5)(I), and the "as regarded" section of the ADA is not meant to be used to secure recognition of an impairment that is explicitly excluded from the ADA's definition of "disability,"see Richards v. City of Topeka, 173 F.3d 1247, 1251 (10th Cir. 1999).
We next turn to Shaw's argument that the defendants violated his rights under the Equal Protection Clause. Shaw argues that the magistrate judge ignored his arguments refuting the defendants' justifications for the policy of excluding all sex offenders from the Youth Awareness Program. In particular, he points to his argument that, because sex offenders may have been convicted of any one of seventeen different offenses and thus may vary in their characteristics, it is arbitrary and irrational to decide that they are all unsuited to participate in the program. He also asserts that the defendants presented no evidence to support their conclusion that prohibiting all sex offenders from participating in the Youth Awareness Program is necessary.
The defendants' decision here to exclude sex offenders from this program survives rational-basis review. Under this lenient standard, the prison's policy must be upheld if we can reasonably conceive of any justification for it. See Smith v. City of Chicago,
For the above reasons, we AFFIRM the district court's decision.
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This document cites
- U.S. Court of Appeals for the Tenth Circuit - Michelle L. Richards, Firefighter, City of Topeka Fire Department, Plaintiff--Appellant, v. City of Topeka, Defendant--Appellee., 173 F.3d 1247 (10th Cir. 1999)
- U.S. Court of Appeals for the Seventh Circuit - Racine Charter One, Inc. D/B/a 21St Century Preparatory School, Christine Hauck, and Sherry James, Plaintiffs-Appellants, v. Racine Unified School District, Defendant-Appellee., 424 F.3d 677 (7th Cir. 2005)
- Code of Federal Regulations - Title 28: Judicial Administration - 28 CFR 35.104 - Definitions.
- U.S. Supreme Court - Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1 (2003)
- U.S. Court of Appeals for the Seventh Circuit - Robert Brown, Plaintiff-Appellant, v. City of Michigan City, Indiana, Defendant-Appellee., 462 F.3d 720 (7th Cir. 2006)
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