Ronald L. Kupsky v. OUTAGAMIE COUNTY and MICHAEL W. GAGE

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 7, 2019*
Decided January 9, 2019
Before
DIANE P. WOOD, Chief Judge
DIANE S. SYKES, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 18-2958
RONALD L. KUPSKY,
Plaintiff-Appellant,
v.
OUTAGAMIE COUNTY and
MICHAEL W. GAGE,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 18-C-757
Lynn Adelman,
Judge.
O R D E R
Ronald Kupsky, a Wisconsin inmate, sued the judge who presided over his
state-court criminal case and the county where the proceedings were held for violations
of his due-process rights during the taking of his plea of no contest. Specifically,
Kupsky alleged that the judge failed to inform him of all potential consequences of the
plea, including the possibility that he could be placed on the sex-offender registry. The
district court dismissed Kupsky’s complaint for failure to state a claim, see 28 U.S.C.
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. See F ED. R. A PP. P. 34(a)(2)(C). The defendants were not
served with process in the district court and are not participating in this appeal.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 18-2958 Page 2
§ 1915A(b). To the extent Kupsky seemed to challenge the validity of his state-court
conviction, the court found his case barred by Heck v. Humphrey, 512 U.S. 477, 486–87
(1994), because success on his claim—that the judge erroneously accepted his plea—
would necessarily imply the invalidity of his criminal conviction. And insofar as he
wished to proceed with a claim under 42 U.S.C. § 1983, the court concluded that the
state-court judge was protected by absolute immunity. Finally, the court explained that
Kupsky had not stated a claim against the county because he had not asserted that any
deprivation of his constitutional rights arose out of an official policy or established
custom. See Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978).
On appeal, Kupsky argues only that the state-court judge was not entitled to
absolute immunity because his handling of the case was “egregious.” He does not
mention his claim against Outagamie County, and so we consider it abandoned at this
point and do not discuss it further.
Whether a judge has absolute immunity turns on whether the act in question was
judicial in nature; the severity of any possible error is irrelevant. See Stump v. Sparkman,
435 U.S. 349, 359–60, 363 (1978). Kupsky does not argue, nor could he, that the
acceptance of his no-contest plea is not a “function normally performed by a judge.” See
id. at 362. And even if the judge were not entitled to immunity, Kupsky’s suit would
still be Heck-barred, as the district court properly explained. See Burd v. Sessler, 702 F.3d
429, 435–36 (7th Cir. 2012).
For the foregoing reasons, we AFFIRM the dismissal of Kupsky’s suit and assess
a strike, in addition to the one he incurred in the district court, under 28 U.S.C.
§ 1915(g). See Walker v. O’Brien, 216 F.3d 626, 632 (7th Cir. 2000).

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