Da Vang v. Michael Hoover , 478 F. App'x 326 ( 2012 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 11, 2012*
Decided April 19, 2012
Before
JOEL M. FLAUM, Circuit Judge
DIANE P. WOOD, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 11-2779
DA VANG, Appeal from the United States District
Plaintiff-Appellant, Court for the Western District of Wisconsin.
v. No. 11-cv-150-bbc
MICHAEL W. HOOVER, Barbara B. Crabb,
Defendant-Appellee. Judge.
ORDER
Da Vang is serving consecutive life terms in Wisconsin for fatally shooting his wife
and her friend. See State v. Vang, 694 N.W.2d 510, *1 (Wis. Ct. App. 2005). In this action
under 42 U.S.C. § 1983 and state law, he claims that Michael Hoover, a judge on the
Wisconsin Court of Appeals, violated his constitutional and statutory rights by ruling on
two motions in his postconviction appeal after being recused from hearing that matter.
*
The appellee was not served with process in the district court and is not
participating on appeal. After examining the appellant’s brief and the record, we have
concluded that oral argument is unnecessary. Thus, the appeal is submitted on the
appellant’s brief and the record. See FED. R. A PP. P. 34(a)(2)(C).
No. 11-2779 Page 2
Vang seeks $ 11 million in damages from the judge. The district court dismissed the suit for
failure to state a claim. We affirm the judgment.
Judge Hoover granted a motion to withdraw filed by Vang’s appointed counsel in
the postconviction appeal, and later the judge denied Vang’s motion for reconsideration of
that decision. The judge explicitly recused himself from further involvement in the appeal
because his wife had represented one of the victims during a divorce proceeding; Vang
apparently assumes that Judge Hoover must have known about that conflict before he
ruled on the two motions because he had recused himself from an earlier appeal filed by
Vang. The district court screened Vang’s complaint, see 28 U.S.C. § 1915A, and dismissed it
with the explanation that Judge Hoover enjoys absolute judicial immunity from suit on
both the federal and state claims. (The district court added that Heck v. Humphrey, 512 U.S.
477 (1994), would provide a second basis for dismissal because Vang’s convictions have not
been invalidated. But applying Heck would result in a dismissal without prejudice, Polzin v.
Gage, 636 F.3d 834, 839 (7th Cir. 2011), and since dismissal for failure to state a claim is a
decision on the merits that results in dismissal with prejudice, Kamelgard v. Macura, 585
F.3d 334, 339 (7th Cir. 2009), we understand the court’s decision to rest on judicial
immunity. Thus, we do not discuss Heck further.)
Vang argues that Judge Hoover did not have “jurisdiction” over his postconviction
appeal because of the conflict and thus is not immune from suit. Wisconsin judges cannot
be sued for damages under § 1983 or state law for judicial actions, even if the judge
commits a procedural error or acts in excess of authority, unless the judge acts in clear
absence of jurisdiction. Stump v. Sparkman, 435 U.S. 349, 356–57 (1978); Killinger v. Johnson,
389 F.3d 765, 770–71 (7th Cir. 2004); Scarpaci v. Milwaukee Cnty., 292 N.W.2d 816, 831 (Wis.
1980). If, as Vang insists, Judge Hoover continued to issue rulings in his appeal after
becoming disqualified, the judge arguably exceeded his authority. Yet the judge retained
jurisdiction under W IS. STAT. § 808.03, which grants appellate jurisdiction over final
judgments and orders of state circuit courts. W IS. STAT. § 808.03; State ex rel. Swan v.
Elections Bd., 394 N.W.2d 732, 734 (Wis. 1986). Because Judge Hoover did not act in
complete absence of jurisdiction, the district court correctly concluded that he is immune
from suit.
Accordingly, the judgment is AFFIRMED. Vang has incurred one “strike” for filing
his complaint and a second for pursuing this appeal. See 28 U.S.C. § 1915(g); Mills v. Fischer,
645 F.3d 176, 177 (2d Cir. 2011).