Kane v. Reisch et al

Filing 13

ORDER denying 9 Motion for Reconsideration. Signed by U.S. District Judge Roberto A. Lange on 5/8/2017. (JLS)

FILED
may 0 8 2017
UNITED STATES DISTRICT COURT
CLERK

DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

JAMES WREY KANE,

Plaintiff,

4:17-CV-04007-RAL

vs.

TIM REISCH,
MELINDA JOHNSON,
DOUGLAS WEBER,
ROBERT DOOLEY,

ORDER DENYING MOTION
FOR RECONSIDERATION

SOUTH DAKOTA DEPARTMENT OF

CORRECTIONS, AND
UNKNOWN CENTRAL RECORDS
SUPERVISORS AND FILING

CLERK(S),
Defendants.

Plaintiff, James Wrey Kane ("Kane"), filed this lawsuit pursuant to 42
U.S.C. § 1983. Doc. 1. This Court dismissed his complaint without prejudice to

refiling, finding it barred by Heck v. Humphrey, 512 U.S. 477 (1994). Doc. 7.
Kane now moves this Court to reconsider the dismissal. Doc. 9.

Kane argues that his complaint is not iJec/c-barred because of the

holding in Rowley v. S. Dakota Bd. ofPardons Ss Paroles, 826 N.W.2d 360 (S.D.
2013). There, an inmate, Rowley, challenged his initial parole date. Id. After the
Department of Corrections calculated his parole date, Rowley "applied to the
[Board of Pardons and Paroles] for a final determination of his true and correct

parole eligibility date pursuant to SDCL 24-15A-33." Id. at 363. The parole
board affirmed; Rowley appealed to the state circuit court and then to the

South Dakota Supreme Court. Id. The South Dakota Supreme Court reversed

the affirmation of the parole board's calculation of Rowley's initial parole date.
Id. at 362.

However, Kane has not had his sentence reversed.

[I]n order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid,
a § 1983 plaintiff must prove that the conviction or sentence has

been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court's issuance
of a writ of habeas corpus, 28 U.S.C. § 2254.

Heck, 512 U.S. at 486-87. Kane "seeks compensation for the illegally imposed
18 months [that] he spent in prison[,]" Doc. 9, but has not had his sentence
vacated or reversed.

Kane also supplied this Court with a letter from the South Dakota

Department of Corrections explaining the calculation of his release date. Doc.
10-1. Kane argues that this shows that his sentence was vacated or reversed as

required by Heck in order for a plaintiff to bring suit under § 1983 for illegal
imprisonment. Doc. 10. In fact, the letter states that after Rowley the DOC
reviewed all offenders affected by the ruling and found that, because Kane's
initial parole date was before Rowley, his initial parole date calculation was

unaffected by the ruling and subsequent parole hearings were discretionary

and unaffected by the original calculation. Doc. 10-1. Therefore, Kane's
sentence has not been vacated or reversed, and his argument is without merit.
Accordingly, it is ORDERED that Kane's motion for reconsideration
(Doc. 9) is denied.

Dated May _g_, 2017.
BY THE COURT:

ROBERTO A. LAT^GE
UNITED STATES DISTRICT JUDGE