                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                    Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                             File Name: 14a0184p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


 RICHARD WERSHE, JR.,                                              ┐
                                         Plaintiff-Appellant,      │
                                                                   │
                                                                   │         No. 13-1209
            v.                                                     │
                                                                    >
                                                                   │
 THOMAS COMBS, Chairperson, Michigan Parole                        │
 Board; BARBARA S. SAMPSON, Member, Michigan                       │
 Parole Board, in their official and individual                    │
 capacities,                                                       │
                          Defendants-Appellees.                    │
                                                                   ┘
                               Appeal from the United States District Court
                          for the Western District of Michigan at Grand Rapids
                          No. 1:12-cv-01375—Gordon J. Quist, District Judge.
                                    Decided and Filed: August 13, 2014

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

                                             _________________

                                                  COUNSEL

ON BRIEF: Ralph Musilli, MUSILLI BRENNAN ASSOCIATES, PLLC, St. Clair Shores,
Michigan, for Appellant.

                                             _________________

                                                   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

        *
          The Honorable John T. Nixon, United States District Judge for the Middle District of Tennessee, sitting by
designation.




                                                         1
No. 13-1209                      Wershe v. Combs et al.                         Page 2


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 (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, 485 N.W.2d 866, 875–77
(Mich. 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 Facility in 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
No. 13-1209                            Wershe v. Combs et al.                                   Page 3


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

         1
          The Michigan parole statute provides that “[a] prisoner shall not be given liberty on parole until the board
has reasonable assurance, after consideration of all of the facts and circumstances, including the prisoner’s mental
and social attitude, that the prisoner will not become a menace to society or to the public safety.” Mich. Comp.
Laws § 791.233(1)(a).
No. 13-1209                               Wershe v. Combs et al.                                     Page 4


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 Summary
Report 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.




         2
          “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss
the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim on which relief may
be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
         3
          “The court shall on its own motion or on the motion of a party dismiss any action brought with respect to
prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison,
or other correctional facility if the court is satisfied that the action is frivolous, malicious, fails to state a claim upon
which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief.” 42 U.S.C.
§ 1997e(c)(1).
No. 13-1209                      Wershe v. Combs et al.                         Page 5


                                         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 (2005) (quoting Preiser v.
Rodriguez, 411 U.S. 475, 489 (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.
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. § 1997e de 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 regarding Plaintiff, and its earlier decisions refusing to give
No. 13-1209                        Wershe v. Combs et al.                         Page 6


Plaintiff’s case anything more than perfunctory consideration, do not provide him, a juvenile
offender, with a realistic opportunity to obtain his release from prison, and also fail to constitute
a meaningful review and determination of Plaintiff’s parole eligibility.” R. 1 (Compl. at ¶ 31)
(Page ID #9). The “realistic opportunity” language comes from Graham v. Florida, where the
Supreme Court held that the Eighth Amendment requires that juvenile offenders convicted of
non-homicide offenses sentenced to life in prison for non-homicide crimes have a meaningful
chance to obtain parole:

               A State is not required to guarantee eventual freedom to a juvenile
        offender convicted of a nonhomicide crime. What a State must do, however, is
        give defendants like Graham some meaningful opportunity to obtain release based
        on demonstrated maturity and rehabilitation. It is for the State, in the first
        instance, to explore the means and mechanisms for compliance.

Graham, 560 U.S. at 75 (emphasis added); see id. at 82 (“A State need not guarantee the
offender eventual release, but if it imposes a sentence of life it must provide him or her with
some realistic opportunity to obtain release before the end of that term.”). The Court reached
this conclusion because “[l]ife without parole is an especially harsh punishment” for juvenile
offenders, compared to adults, because “a juvenile offender will on average serve more years and
a greater percentage of his life in prison than an adult offender” and “[w]ith respect to life
without parole for juvenile nonhomicide offenders, none of the goals of penal sanctions that have
been recognized as legitimate—retribution, deterrence, incapacitation, and rehabilitation—
provides an adequate justification.” Graham, 560 U.S. at 70, 71 (internal citation omitted).

        The Supreme Court left it to the “State, in the first instance, to explore the means and
mechanisms for compliance” with Graham. Id. at 75. Whether Graham applies to an individual
in Wershe’s position, and what constitutes a constitutionally meaningful and realistic opportunity
for parole, are questions of first impression in this circuit.

        The district court rejected Wershe’s Eighth Amendment claim with no mention of
Graham v. Florida, analysis of whether Graham applies to Wershe, or consideration of whether
Michigan parole proceedings provide a constitutionally meaningful opportunity for release. The
district court’s main support for its conclusion that “the proportionality of [Wershe’s] sentence”
did not present an Eighth Amendment problem was an unpublished, pre-Graham, Eighth
No. 13-1209                      Wershe v. Combs et al.                         Page 7


Amendment challenge to the denial of parole, not to parole procedures. Wershe, 2013 WL
235476, at *4 (citing Preston v. Hughes, No. 97-6507, 1999 WL 107970, at *2 (6th Cir. Feb. 10,
1999)). Given the novelty of Wershe’s claim and the fact that the parties have not had an
opportunity to present briefing, we think it best to permit the parties to further develop their
arguments for consideration by the district court in the first instance. Indeed, the defendants
have not yet been served.     We therefore vacate the portion of the district court’s opinion
dismissing Wershe’s Eighth Amendment claim for failure to state a claim and remand this claim
to the district court.

B. Due Process

        Unlike the Eighth Amendment claim, Wershe’s due-process claim is not premised on his
youth at the time of arrest or on Graham v. Florida. He simply alleges that the Parole Board
violated due process by sending him an interview notice, but not interviewing him, and refusing
to explain the decision not to interview him.

        To state a due-process claim, Wershe must allege that a protected property or liberty
interest was violated. He does not identify an affected property interest. We previously held that
that Michigan’s parole system creates “no ‘legitimate claim of entitlement to’ parole, and thus no
liberty interest in parole.” Crump v. Lafler, 657 F.3d 393, 404 (6th Cir. 2011) (citation omitted).
Absent a protected interest, a prisoner may seek to enforce statutes or regulations that govern the
parole process as a matter of state law, but “procedural statutes and regulations governing parole
do not [alone] create federal procedural due process rights.” Sweeton v. Brown, 27 F.3d 1162,
1164 (6th Cir. 1994). Because Wershe did not allege a particular liberty interest based on his
youth at the time of arrest, we need not determine whether Graham v. Florida created a new
liberty interest. Instead, Wershe’s complaint is governed by our holding in Crump that Michigan
law does not create a liberty interest in parole. Accordingly, we affirm the district court’s
dismissal of Wershe’s due-process claim.
No. 13-1209                     Wershe v. Combs et al.                 Page 8


                                    III. CONCLUSION

       For the foregoing reasons, we AFFIRM the dismissal of Wershe’s due-process claim,
VACATE the dismissal of the Eighth Amendment claim, and REMAND for further proceedings
consistent with this opinion.
