Vice v. Becker et al

Filing 13

ORDER denying 12 Motion for Reconsideration re 12 MOTION for Reconsideration re 10 Order filed by Derek Vice. Signed by U.S. District Judge Karen E. Schreier on 3/30/17. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
DEREK VICE,

4:16-CV-05119-KES
Plaintiff,

vs.

ORDER DENYING MOTION
FOR RECONSIDERATION

ANDY BECKER, JEFF DAVIS,
Defendants.
Plaintiff, Derek Vice, is an inmate at the South Dakota State
Penitentiary in Sioux Falls. He filed a pro se civil rights lawsuit under 42
U.S.C. § 1983. Docket 1. The court screened Vice’s complaint under 28 U.S.C.
§ 1915A and dismissed his claims, finding them barred by Heck v. Humphrey,
512 U.S. 477 (1994). Docket 10. Vice now moves the court to reconsider its
decision. Docket 12.
Vice argues that Heck does not apply because he is challenging “the
constitutionality of the procedure used in reaching his conviction . . . .” Docket
12 at 1. He argues that Edwards v. Balisok, 520 U.S. 641 (1997) and
Wilkinson v. Dotson, 544 U.S. 74 (2005), support this claim. In Edwards, the
Supreme Court held that a prisoner's due process claim concerning the
procedures that were used in a disciplinary hearing was not cognizable under
§ 1983 even though the hearing resulted in the revocation of the prisoner's
good time credits. If anything, this case supports dismissal of Vice’s claim.

In Wilkinson, the Supreme Court held that prisoners could challenge the
constitutionality of state parole procedures under § 1983. The court stated
that success for the plaintiff “did not mean immediate release from
confinement or a shorter stay in prison; it mean[t] at most new eligibility
review, which at most [would] speed consideration of a new parole
application.” Wilkinson, 544 U.S. at 82. Here, success for Vice means only an
invalidation of his conviction. The only proceeding he objects to is the court
proceeding that resulted in his indictment and led to his conviction. Therefore,
Wilkinson does not support Vice’s claim.
Vice also argues that Schaffer v. Beringer, 842 F.3d 585 (8th Cir. 2016),
and United States v. Clay, 720 F.3d 1021 (8th Cir. 2013), support his claim
that his conviction should be set aside. The issue is whether Vice’s claim may
be brought under § 1983 or whether he must seek habeas relief to invalidate
his sentence. As explained in the court’s previous order, the court in Schaffer
did not decide whether Heck barred a claim similar to Vice’s, contrary to his
assertion. This court found that Vice’s claim is barred by Heck and Vice’s
motion for reconsideration does not raise any new argument as to why he is
entitled to be relieved from the judgment. Therefore, it is
ORDERED that Vice’s motion for reconsideration (Docket 12) is denied.
Dated March 30, 2017.
BY THE COURT:
/s/

Karen E. Schreier

KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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