Wershe #192034 v. Combs et al

Filing 4

OPINION ; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, kad)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

RICHARD WERSHE, Jr.,
Plaintiff,

Case No. 1:12-cv-1375

v.

Honorable Gordon J. Quist

THOMAS COMBS et al.,
Defendants.
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OPINION
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983.
Under the Prison Litigation Reform Act, PUB. L. NO. 104-134, 110 STAT. 1321 (1996), the Court is
required to dismiss 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. 28 U.S.C. § 1915(e)(2); 42 U.S.C. § 1997e(c). For the reasons
that follow, the Court finds that Plaintiff’s action is subject to dismissal for failure to state a claim.
Factual Allegations
Plaintiff Richard John Wershe, Jr., presently is incarcerated at the Oaks Correctional
Facility in Manistee, Michigan, where he is serving a paroleable life sentence for a 1988 conviction
for possessing with intent to deliver more than 650 grams of cocaine.1 He sues Thomas Combs and
Barbara Sampson, who are members of the Michigan Parole Board.
1

Plaintiff asserts that he committed the offense while he was a juvenile and that he was initially sentenced to
life in prison without parole; however, the statute under which he was sentenced, Mich. Comp. Laws § 333.7401(2)(a)(i),
was found to be constitutionally defective. The successor statute applicable to Plaintiff’s offense, Mich. Comp. Laws
§ 333.7401(2)(a), does not preclude parole.

In his complaint, Plaintiff alleges that he became eligible for parole consideration in
December 2002, after serving 15 years in prison. On March 27, 2003, the parole board held a public
hearing to consider Plaintiff for parole. On April 25, 2003, the parole board voted to withdraw
interest in proceeding with Plaintiff’s case and thereby denied him parole. Plaintiff contends that
since March 2003, on every occasion when the parole board considered Plaintiff for parole, it has
refused to hold a public hearing or to grant parole. In addition, it has refused to recommend a
commutation of Plaintiff’s sentence.
On March 22, 2012, Plaintiff received a notice from the Michigan Department of
Corrections (MDOC) indicating that the parole board would conduct a review of Plaintiff’s prisoner
file to determine whether it had an interest in Plaintiff’s case. On July 2, 2012, Plaintiff received
a notice from the MDOC indicating that the parole board would interview Plaintiff on August 20,
2012. However, before conducting such an interview, Defendant Sampson and other members of
the parole board voted to defer consideration of Plaintiff for parole. On July 23, 2012, the parole
board issued a notice indicating that it had no interest in taking action regarding Plaintiff’s parole
at that time, and that Plaintiff’s next parole interview would occur on December 3, 2017.
Plaintiff’s counsel subsequently requested an explanation from the parole board
regarding the cancellation of the August 20, 2012 interview. In response, Defendant Combs sent
counsel a letter explaining that the notice regarding the interview was a mistake because the board
merely intended to conduct a review of Plaintiff’s file. As a result of that review, it determined that
further consideration would be deferred until 2017.
Plaintiff asserts two claims in his complaint. In Count I of the complaint, Plaintiff
contends that the parole board’s failure to interview Plaintiff in accordance with its notice, and its

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subsequent failure to provide an adequate explanation for cancellation of the interview, violates
Plaintiff’s right to due process under the Fifth and Fourteenth Amendments to the Constitution. In
support of his claim, Plaintiff notes that Michigan law requires the parole board to: (1) interview
an eligible prisoner at the end of 10 years of the prisoner’s sentence and thereafter “as determined
by the parole board”; and (2) review an eligible prisoner’s file at the end of 15 years of the
prisoner’s sentence and every 5 years thereafter. See Mich. Comp. Laws § 791.234(8). He also
notes that Michigan law requires the parole board to notify the prisoner of a parole interview at least
30 days before the interview date and to allow the prisoner to be represented at the interview by an
individual of his or her choice. See Mich. Comp. Laws § 791.234(9).
In Count II, Plaintiff asserts that the parole board’s refusal to give more than
“perfunctory” consideration to Plaintiff’s eligibility for parole violates his right under the Eighth
Amendment to be free of cruel and unusual punishment, because it deprives him of a meaningful
opportunity to obtain release from prison. (Compl., docket #1, Page ID#9.)
As relief, Plaintiff seeks a declaratory judgment that his constitutional rights have
been violated, as well as an injunction prohibiting the parole board from: (1) violating state law
regarding parole proceedings; and (2) denying Plaintiff a “realistic opportunity” for parole release
or a “meaningful review and determination” of his parole eligibility. (Compl., docket #1,
Page ID#10.)
Discussion
I.

Failure to state a claim

A complaint may be dismissed for failure to state a claim if “‘it fails to give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp.

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v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
While a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include
more than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”). The court must determine whether the complaint contains “enough
facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 679.
Although the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it asks for
more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – that
the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting FED. R. CIV. P. 8(a)(2)); see also
Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the Twombly/Iqbal plausibility
standard applies to dismissals of prisoner cases on initial review under 28 U.S.C. §
1915(e)(2)(B)(i)).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a
right secured by the federal Constitution or laws and must show that the deprivation was committed
by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Dominguez v.
Corr. Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009). Because § 1983 is a method for vindicating
federal rights, not a source of substantive rights itself, the first step in an action under § 1983 is to

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identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271
(1994).
A. Due Process (Fifth and Fourteenth Amendments)
Plaintiff claims that Defendants violated his due process rights by failing to provide
a parole interview or a meaningful consideration of his eligibility for parole. To establish a
procedural due process violation, a plaintiff must prove that (1) he was deprived of a protected
liberty or property interest, and (2) such deprivation occurred without the requisite due process of
law. Club Italia Soccer & Sports Org., Inc. v. Charter Twp. of Shelby, 470 F.3d 286, 296 (6th Cir.
2006); see also Swihart v. Wilkinson, 209 F. App’x 456, 458 (6th Cir. 2006). Plaintiff fails to raise
a claim of constitutional magnitude because he has no liberty interest in being released on parole.
There is no constitutional or inherent right to be conditionally released before the expiration of a
prison sentence. Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979).
Although a state may establish a parole system, it has no duty to do so; thus, the presence of a parole
system by itself does not give rise to a constitutionally protected liberty interest in parole release.
Id. at 7, 11; Bd. of Pardons v. Allen, 482 U.S. 369, 373 (1987). Rather, a liberty interest is present
only if state law entitles an inmate to release on parole. Inmates of Orient Corr. Inst. v. Ohio State
Adult Parole Auth., 929 F.2d 233, 235 (6th Cir. 1991).
In Sweeton v. Brown, 27 F.3d 1162 (6th Cir. 1994) (en banc), the Sixth Circuit, noting
“the broad powers of the Michigan authorities to deny parole,” held that the Michigan system does
not create a liberty interest in parole. Id. at 1164-65. In a recent published decision, the Sixth
Circuit reiterated the continuing validity of Sweeton. See Crump v. Lafler, 657 F.3d 393, 404 (6th
Cir. 2011). In Crump, the court held that the adoption of specific parole guidelines since Sweeton

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does not lead to the conclusion that parole release is mandated upon reaching a high probability of
parole. See id.; see also Carnes v. Engler, 76 F. App’x 79, 80 (6th Cir. 2003). In addition, the Sixth
Circuit has rejected the argument that the Due Process Clause is implicated when changes to parole
procedures and practices have resulted in incarcerations that exceed the subjective expectation of
the sentencing judge. See Foster v. Booker, 595 F.3d 353, 369 (6th Cir. 2010). Finally, the
Michigan Supreme Court has recognized that there exists no liberty interest in parole under the
Michigan system. Glover v. Mich. Parole Bd., 596 N.W.2d 598, 603-04 (Mich. 1999).
Plaintiff seems to suggest that he had a protected interest in a parole interview, either
because he was entitled to one under Michigan law, Mich. Comp. Laws § 791.234, or because the
parole board informed him that it had scheduled one. To the contrary, as the Sixth Circuit stated in
Sweeton:
[P]rocedural statutes and regulations governing parole do not create federal
procedural due process rights. . . . Michigan procedural limitations do not detract
from the broad powers of the Michigan authorities to deny parole. So long as the
parole discretion is broad, as in Michigan, the State has not created a constitutionally
protected liberty interest by enacting procedural rules. The parole authorities of the
State of Michigan may have been required to follow their own procedural statutes
and regulations on parole . . . , but there is not now any viable legal theory by which
Michigan state authorities are required to follow such procedural rules as a matter
of federal due process.
Sweeton, 27 F.3d at 1164-65 (internal citation and quotation marks omitted) (emphasis in original).
Likewise, Plaintiff cannot claim that the parole board violates his right to due process by failing to
abide by Michigan procedural rules regarding parole interviews, or by failing to abide by its own
notice of intent to conduct a parole interview. In short, because of the discretionary nature of
Michigan’s parole system, the Michigan Parole Board’s failure to interview or consider Plaintiff for

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parole implicates no interest protected by the right to due process. In the absence of a protected
interest, Plaintiff fails to state a claim for a violation of his procedural due process rights.
B. Eighth Amendment
Plaintiff further contends that Defendants’ failure to give meaningful consideration
to his parole eligibility violates his rights under the Eighth Amendment. The Eighth Amendment
to the United States Constitution, applicable to the states through the Due Process Clause of the
Fourteenth Amendment, prohibits cruel and unusual punishments. See U.S. CONST., amend. VIII;
Harmelin v. Michigan, 501 U.S. 957, 962 (1991). That prohibition “is directed at two primary
evils.” Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987). One concerns “barbarous physical
punishments” and those which, “although not physically barbarous, ‘involve the unnecessary and
wanton infliction of pain . . . .’” Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (citation and
internal quotation marks omitted). The other concerns “sentences that are disproportionate to the
crime committed.” Ivey, 832 F.2d at 954.
Plaintiff’s claim does not implicate either of the foregoing concerns. First, the denial
of an inmate’s parole (or the refusal to consider an inmate for parole) is not an unnecessary and
wanton infliction of pain. Carnes v. Engler, 76 Fed. App’x 79, 81 (6th Cir. 2003). Second, the
proportionality of Plaintiff’s sentence is not at issue because the parole board did not issue Plaintiff’s
sentence; instead, it merely declined to shorten the sentence already imposed on him by deferring
consideration of parole. See Preston v. Hughes, No. 97-6507, 1999 WL 107970, *2 (6th Cir. Feb.
10, 1999) (rejecting an Eighth Amendment challenge to a parole denial as “factually baseless”
because the parole board did not issue a sentence). Consequently, Plaintiff does not state an Eighth
Amendment claim against Defendants for declining to consider Plaintiff for parole.

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Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff’s action will be dismissed for failure to state a claim pursuant to 28 U.S.C.
§ 1915(e)(2) and 42 U.S.C. § 1997e(c).
The Court must next decide whether an appeal of this action would be in good faith
within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611
(6th Cir. 1997). For the same reasons that the Court dismisses the action, the Court discerns no
good-faith basis for an appeal. Should Plaintiff appeal this decision, the Court will assess the
$455.00 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless
Plaintiff is barred from proceeding in forma pauperis, e.g., by the “three-strikes” rule of § 1915(g).
If he is barred, he will be required to pay the $455.00 appellate filing fee in one lump sum.
This is a dismissal as described by 28 U.S.C. § 1915(g).
A Judgment consistent with this Opinion will be entered.

Dated: January 22, 2013

/s/ Gordon J. Quist
Gordon J. Quist
United States District Judge

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