United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge
Robert Pierre Kidd, appearing pro se, is an inmate at the
Waupun Correctional Institution. He has filed this civil
lawsuit against a doctor, defendant L. Cass Terry, for
testifying that Kidd was competent to plead guilty to a
crime, and against his lawyers, Miller & Stansberry,
S.C., for what he believes was substandard representation on
seeks leave to proceed in forma pauperis, and he has
made an initial partial payment of the filing fee as
previously directed by the court. The next step is for me to
screen Kidd's complaint and dismiss any portion that is
legally frivolous, malicious, fails to state a claim upon
which relief may be granted, or asks for monetary damages
from a defendant who by law cannot be sued for money damages.
28 U.S.C. §§ 1915 and 1915A. In doing so, I must
read Kidd's pro se complaint generously. See Haines
v. Kerner, 404 U.S. 519, 521 (1972) (per curiam).
considering Kidd's complaint, I conclude that his
complaint suffers from several problems, the most serious of
which is that his claims question the validity of his
conviction. I must dismiss the case under Heck v.
Humphrey, 512 U.S. 477 (1994).
allegations are somewhat difficult to follow, but I have
gleaned further information from the electronic record of his
state-court criminal proceedings. In 2001, Kidd pleaded
guilty to three counts of second-degree reckless homicide
while using a dangerous weapon, in Milwaukee County Circuit
Court No. 2001CF2489. Kidd indicated that he wanted to pursue
postconviction relief, and he was appointed counsel, Charles
Stansberry of the law firm Miller & Stansberry, S.C.
Kidd to be saying that his plea was not voluntary because of
medication- phenobarbital and other anticonvulsants for
epilepsy-he was taking at the time of his plea. But
Stansberry filed a no-merit report on appeal, at least in
part based on a medical report of defendant Dr. L. Cass
Terry, a professor of neurology and physiology at the Medical
College of Wisconsin. Terry stated that the medication did
not affect Kidd's comprehension or judgment. I take Kidd
to be saying that Terry's report is false. Kidd's
conviction was affirmed on appeal and he remains
asks for money damages and for “all charges [to] be
dropped.” The court cannot undo Kidd's conviction
in this type of proceeding. Such a claim properly belongs in
a petition for writ of habeas corpus, although I note that
Kidd has unsuccessfully pursued habeas relief from this
conviction in the United States District Court for the
Eastern District of Wisconsin. See Kidd v.
McCaughtry, No. 04-C-604, 2007 WL 128355 (E.D. Wis. Jan.
is a similar problem with Kidd's claims for money
damages: “where success in a prisoner's § 1983
damages action would implicitly question the validity of
conviction or duration of sentence, the litigant must first
achieve favorable termination of his available state, or
federal habeas, opportunities to challenge the underlying
conviction or sentence.” Muhammad v. Close,
540 U.S. 749, 750 (2004) (per curiam) (citing Heck,
512 U.S. 477). Kidd's claims that he received substandard
legal representation from Stansberry, and that Terry lied in
his expert report, implicitly challenge the constitutionality
of his plea and subsequent convictions. A judgment in
Kidd's favor would necessarily undermine his conviction
and imply that it is invalid. Therefore, I must dismiss his
even if Heck did not bar Kidd's claims, there
are other problems that would almost certainly doom this
lawsuit. Kidd cannot bring a federal claim under 42 U.S.C.
§ 1983 against Stansberry as his defense counsel because
defense attorneys are not “state actors” for
purposes of § 1983. See Polk Cty. v. Dodson,
454 U.S. 312, 325 (1981); Swaggerty v. Trevarthen,
715 Fed.Appx. 556, 558 (7th Cir. 2018). Although Kidd's
complaint is too vague for me to fully understand Terry's
role in the criminal proceedings, the same state-actor
problem likely applies to Terry. And Kidd likely cannot bring
a claim against Terry because witnesses are generally immune
from § 1983 lawsuits for providing testimony against a
litigant. See Briscoe v. LaHue, 460 U.S. 325 (1983).
Finally, Kidd's claims are almost certainly barred by the
statutes of limitations applying to his claims, which at most
run six years. See Wis. Stat. § 893.53
(six-year limit for “Action for injury to character or
other rights” and § 893.57.57 (three-year limit
for “Intentional torts”); see also Malone v.
Corr. Corp. of Am., 553 F.3d 540, 542 (7th Cir. 2009)
(federal courts generally apply Wisconsin's six-year
limitations period to § 1983 claims). Kidd complains of
conduct occurring 14 years before he filed his complaint.
I conclude that Kidd's claims are barred by
Heck, I will dismiss the case and assess Kidd a
strike for bringing a frivolous lawsuit. See Moore v.
Pemberton, 110 F.3d 22, 24 (7th Cir. 1997) (A complaint
that is barred by Heck is considered legally
frivolous and counts as a “strike” under 28
U.S.C. § 1915(g)).