Wershe v. Combs

• Decision Date: 13 August 2014
• Docket Number: No. 13–1209.,13–1209.
• Citation: 763 F.3d 500
• Parties: Richard WERSHE, Jr., Plaintiff–Appellant, v. Thomas COMBS, Chairperson, Michigan Parole Board; Barbara S. Sampson, Member, Michigan Parole Board, in their official and individual capacities, Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

763 F.3d 500

Richard WERSHE, Jr., Plaintiff–Appellant,

v.Thomas COMBS, Chairperson, Michigan Parole Board; Barbara S. Sampson, Member, Michigan Parole Board, in their official and individual capacities, Defendants–Appellees.

No. 13–1209.

United States Court of Appeals,Sixth Circuit.

Aug. 13, 2014.

ON BRIEF:Ralph Musilli, Musilli Brennan Associates, PLLC, St. Clair Shores, Michigan, for Appellant.

Before: MOORE and ROGERS, Circuit Judges, and NIXON, District Judge. ^*

OPINION

KAREN NELSON MOORE, Circuit Judge.

Appellant Richard Wershe, Jr. (“Wershe”) was originally sentenced to a life sentence without the possibility of parole for drug crimes committed when he was seventeen years old. Because the Michigan Supreme Court declared the life-without-parole penalty for simple possession unconstitutional, Wershe is now subject to a paroleable life sentence. Wershe's initial opportunity for parole was denied after a public hearing in 2003. In 2012, the Parole Board conducted a file review, determined that it had no interest in taking action on his case, and scheduled Wershe's next interview for December 9, 2017. Wershe brought a § 1983 suit against Michigan Parole Board members Thomas Combs and Barbara Sampson, alleging that the parole consideration process did not afford him a meaningful opportunity for release in violation of his right to due process of law pursuant to the Fifth and Fourteenth Amendments and his right to be free from cruel and unusual punishment pursuant to the Eighth Amendment. Before the defendants were served, the district court sua sponte dismissed Wershe's complaint for failure to state a claim pursuant to the Prison Litigation Reform Act. We AFFIRM the district court's denial of Wershe's due-process claim. However, because the district court failed to consider the impact of Wershe's youth at the time of the crime and his arrest, we VACATE the denial of the Eighth Amendment claim and REMAND for further consideration of the impact of Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), on Wershe's claim that the parole proceedings provided by the Michigan Parole Board did not provide him with a meaningful opportunity for parole.

I. BACKGROUND

Wershe was 17 years and 10 months old when he was arrested and charged with various drug crimes in Detroit, Michigan. R. 1 (Compl. at ¶ 9) (Page ID # 3). He was convicted of possession with the intent to deliver more than 650 grams of cocaine, and on February 4, 1988, he was sentenced to life in prison without the possibility of parole. Id. at ¶ 10 (Page ID # 4). At the time of sentencing, Wershe was 18 years and 7 months old. Id. In 1992, the Michigan Supreme Court declared the life-without-parole penalty for simple possession under this statute unconstitutional under the Eighth Amendment. People v. Bullock, 440 Mich. 15, 485 N.W.2d 866, 875–77 (1992). It is not clear from the record when Wershe was re-sentenced, but he alleges that he is now subject to a paroleable life sentence. Wershe is currently incarcerated at the Oaks Correctional Facilityin Manistee, Michigan. R. 1 (Compl. at ¶ 6) (Page ID # 3). On March 27, 2003, Wershe had a public parole hearing with witnesses testifying in favor and in opposition to Wershe receiving parole, including many local and federal law-enforcement officers testifying to “Wershe's involvement in the distribution of controlled substances in the late 1980's and the impact this crime had on the community and general public.” R. 1–1 Ex. D (2003 Letter at 3) (Page ID # 21). On April 25, 2003, the Parole Board voted to “withdraw interest” in Wershe's case because “the Michigan Parole Board has concluded that the reasonable assurance required by Mich. Comp. Laws § 791.233,¹ that the prisoner will not become a menace to society or to the public safety, is lacking.” Id. at Page ID # 19, 21.

In May 2012, Wershe received a “Notice of Intent to Conduct a Parole Board Review for Prisoners Serving a Life Sentence.” R. 1–2, Ex. E (May 2012 Notice of Intent at 1) (Page ID # 22). The letter indicated that because Wershe already had his “initial lifer interview, the Parole Board will conduct a file review.” Id. But then on July 2, 2012, Wershe received a document entitled “Notice of Intent to Conduct a Parole Board Interview,” indicating that the Parole Board scheduled an interview with Wershe for August 20, 2012. R. 1–2, Ex. F (July 2012 Notice of Intent at 1) (Page ID # 23). However, August 20 came and passed, and Wershe did not receive an interview. Soon thereafter, Wershe received a letter stating that “[t]he majority of the Parole Board has no interest in taking action at this time” and informing him that his next interview was scheduled for December 9, 2017. R. 1–2, Ex. G (Notice of Decision at 1) (Page ID # 24).

Through counsel, Wershe sent a letter to the Parole Board asking why he was sent an interview notice but did not receive an interview, and requesting the “reason for the denial by the Board of his Parole.” R. 1–2, Ex. H (Letter to Parole Bd. at 1) (Page ID # 25). The Board responded with a letter explaining that under changes to the life-sentence statutes effective in 2000, “[p]risoners serving life sentences are interviewed after serving 10 calendar years of their life sentence[s]. The Parole Board is only required to review each prisoner's file every 5 years thereafter. Subsequent interviews will only be conducted as determined by the Board.” R. 1–2, Ex I (Bd. Letter to Wershe at 1) (Page ID # 26). The letter stated that Wershe received the interview notice in error, the Board had no interest in conducting an interview, and “[a] majority of the Parole Board had no interest in proceeding to a lifer law public hearing as set forth in [Mich. Comp. Laws § ] 791.234.” Id. The letter concluded that the decision not to interview a prisoner with a life sentence or proceed with a public hearing “is not a denial of parole,” so the requirement for an explanation when parole is denied under Mich. Comp. Laws § 791.235 is inapplicable. Id. Finally, the letter stated that “Wershe will be eligible for a lifer 5–year file review on or about his Official Date of December 9, 2017.” Id. at 2 (Page ID # 27). Wershe filed a request under the Michigan Freedom of Information Act for all documents related to the 2012 Parole Board decision. R. 1 (Compl. at ¶ 21) (Page ID # 7). He received a Case SummaryReport signed by Barbara Sampson commenting on his involvement in work assignments and completion of GED, but also noting a 2006 conviction for racketeering and conspiracy to commit racketeering for offenses committed while incarcerated. After each statement the report included the parenthetical “(Not used as reason),” and the report never identified the specific reason or reasons that the Parole Board lacked interest in Wershe's case. R. 1–2, Ex. J (Case Summary Report at 9–14) (Page ID # 30–35).

Wershe then brought the instant 42 U.S.C. § 1983 lawsuit against Michigan Parole Board members Thomas Combs and Barbara Sampson, alleging that the review of his parole eligibility violated his right to due process of law pursuant to the Fifth and Fourteenth Amendments and his right to be free from cruel and unusual punishment pursuant to the Eighth Amendment. R. 1 (Compl. at ¶ 1) (Page ID # 2). On its own motion, the district court dismissed the action with prejudice for failure to state a claim pursuant to 28 U.S.C. § 1915(e)² and 42 U.S.C. § 1997e(c)³. Wershe v. Combs, No. 1:12–cv–1375, 2013 WL 235476 (W.D.Mich. Jan. 22, 2013). Wershe now appeals the dismissal of his case.

II. ANALYSIS

This court has jurisdiction pursuant to 28 U.S.C. § 1291 of the appeal from the district court's dismissal of Wershe's § 1983 claim.

Generally “a prisoner in state custody cannot use a § 1983 action to challenge ‘the fact or duration of his confinement.’ ” Wilkinson v. Dotson, 544 U.S. 74, 78, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005) (quoting Preiser v. Rodriguez, 411 U.S. 475, 489, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973)). Where the relief sought is “a determination that he is entitled to immediate release or a speedier release from that imprisonment,” the prisoner must pursue relief through a writ of habeas corpus, not through § 1983. Preiser, 411 U.S. at 500, 93 S.Ct. 1827. Here, though, Wershe does not seek direct release from prison or a shorter sentence; he seeks a change in the procedures used to determine whether he is eligible for parole. Because “success in [his] § 1983 claim would not necessarily affect the duration of his sentence because prison officials would retain discretion regarding whether to grant him parole,” the habeas exception does not bar Wershe's § 1983 claim. Thomas v. Eby, 481 F.3d 434, 440 (6th Cir.2007).

“The Prison Litigation Reform Act, Pub.L. No. 103–134, 110 Stat. 1321 (1996), requires dismissal of any prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such relief.” Flanory v. Bonn, 604 F.3d 249, 252 (6th Cir.2010). “To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege a violation of a right secured by the federal Constitution or laws and must show that the violation was committed by a person acting under color of state law.” Id. at 253. “We review a district court's decision to dismiss under 28 U.S.C. §§ 1915(e), 1915A, and 42 U.S.C. § 1997ede novo.” Grinter v. Knight, 532 F.3d 567, 571–72 (6th Cir.2008). “In determining whether a prisoner has failed to state a claim, we construe his complaint in the light most favorable to him, accept his factual allegations as true, and determine whether he can prove any set of facts that would entitle him to relief.” Harbin–Bey v. Rutter, 420 F.3d 571, 575 (6th Cir.2005).

A. Eighth Amendment

In the Eighth Amendment section of his complaint, Wershe alleged “[t]hat the Parole Board's most recent actions...