Kidd, Robert v. Schellinger, Jaqueline, 3:20-cv-01138

Plaintiff Robert P. Kidd, a state prisoner at Waupun Correctional Institution, was convicted in Milwaukee County in 2001 of three counts of second-degree reckless homicide (Milwaukee County Case No. 2001CF2489).
Kidd filed a pro se pleading styled as a civil complaint against Judge Jacqueline Schellinger alleging the judge refused to accept his plea and denied him a jury trial, and seeking money damages and relief to reopen his criminal case or secure his release.
The district court construed Kidd’s filing as a habeas corpus petition under 28 U.S.C. § 2254 because it sought to challenge the legality of his custody.
The court found Kidd had previously filed an unsuccessful habeas petition challenging the same conviction in 2004 in the Eastern District of Wisconsin, making this submission a second or successive petition requiring court-of-appeals authorization.
The court dismissed the petition for lack of authorization as second or successive, denied a certificate of appealability, directed refund of filing fees except a $5 habeas filing fee, and denied Kidd’s motion for refund of veteran’s-pension payments as to the $5 fee (otherwise moot).
The opinion also noted that, even if treated as a civil-rights suit, damages claims against the judge would be barred by absolute judicial immunity.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the filing is a successive habeas petition	Kidd seeks relief to reopen conviction/release; styled as civil complaint but attacks custody	Petition challenges same conviction previously litigated; no appellate authorization obtained	Dismissed as a second or successive petition for lack of authorization
Viability of damages claim against the state-court judge	Seeks money damages from Judge Schellinger	Judicial acts are protected by absolute immunity	Damages claim would be barred by absolute judicial immunity
Whether to issue a certificate of appealability (COA)	Implicit request to proceed on appeal	Reasonable jurists would not debate that petition is successive	COA denied; may seek COA from the court of appeals under Fed. R. App. P. 22
Filing-fee refund (including veteran’s pension funds)	Requests refund of fees paid, including from veteran’s pension	Habeas filing requires $5 fee; excess payments should be returned; $5 retained	Clerk directed to refund amounts exceeding $5; motion denied as to $5 and otherwise moot

Stump v. Sparkman, 435 U.S. 349 (1978) (establishes absolute judicial immunity for judicial acts)
Loubser v. Thacker, 440 F.3d 439 (7th Cir. 2006) (confirms scope of judicial immunity in this circuit)
Tennard v. Dretke, 542 U.S. 274 (2004) (explains the standard for a certificate of appealability)
Miller-El v. Cockrell, 537 U.S. 322 (2003) (clarifies the "reasonable jurists" standard for COA)