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,

Plaintiff-Appellant,

v.

MICHAEL W. HOOVER,

Defendant-Appellee.

Appeal from the United States District

Court for the Western District of Wisconsin.

No. 11-cv-150-bbc

Barbara B. Crabb,

Judge.

O R D E R

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.

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

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. APP. 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 WIS. STAT. § 808.03, which grants appellate jurisdiction over final

judgments and orders of state circuit courts. WIS. 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).