FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JAN 10 2001

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 99-8105

Non-Argument Calendar

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D. C. Docket No. 98-00159-CV-6

CHARLES BRADFORD SMITH,

Plaintiff-Appellant,

versus

MITCHELL MCKINLEY SHOOK,

CHRIS A. FOSTER, et al.,

Defendants-Appellees.

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Appeal from the United States District Court

for the Southern District of Georgia

_________________________

(January 10, 2001)

Before ANDERSON, Chief Judge, WILSON and COX, Circuit Judges.

PER CURIAM:
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Charles Bradford Smith appeals pro se from the district court’s order dismissing

his claims against multiple defendants under 42 U.S.C. § 1983. In this opinion, we

address Smith’s appeal of the district court’s dismissal of two of his individual § 1983

claims: one against defendant Paula Frederick, Deputy General Counsel for the State

Bar of Georgia, and one against Chris Foster, State of Georgia Administrative Law

Judge. We resolve Smith’s other claims on appeal in an unpublished appendix. The

issues that warrant publication relate to (1) the district court’s holding that Smith

lacked standing to challenge Frederick’s decision not to prosecute Smith’s former

attorney, and (2) the district court’s holding that Foster was entitled to judicial

immunity for his actions taken as an administrative law judge. We affirm the district

court’s holding with respect to each of these issues.

I. BACKGROUND

Smith was a correctional officer with the Georgia Department of Corrections

whose employment was terminated when he allegedly assaulted a fellow correctional

officer. Smith hired attorney Mitchell Shook to represent him at a State Personnel

Board termination hearing before Administrative Law Judge (“ALJ”) Chris Foster.

Shook, ALJ Foster, and Department of Corrections Counsel Stephen Pereira (not a

party to this action) canceled the hearing. According to Smith, the hearing was not
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rescheduled; instead, Shook presented a settlement offer to Smith, which Smith

refused. Smith and Shook agreed that Shook would no longer represent Smith. Shook

refused Smith’s demand to refund the $1,000 Smith had paid him for representation.

Smith proceeded without counsel at a rescheduled hearing. Foster presided over the

hearing and ruled against Smith. Smith complained about Shook to the State Bar of

Georgia, but Bar Counsel Paula Frederick declined to prosecute Smith’s complaint,

and recommended fee arbitration. 

Smith then filed a pro se complaint in the district court, asserting individual §

1983 claims against Shook and other members of his law firm, and against Foster and

Frederick. As noted above, we address in this opinion only two of Smith’s claims

relating to Frederick and Foster. Defendant Frederick moved to dismiss for lack of

standing to challenge her decision not to prosecute Shook. Defendant Foster moved

to dismiss based on judicial immunity. The district court held that Smith lacked

standing to challenge Frederick’s decision not to prosecute Smith’s former attorney;

and the district court held that Foster was entitled to judicial immunity for his actions

taken as an administrative law judge. Smith appeals.

II. DISCUSSION

A. Claim Against Frederick:
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Smith argues that the district court erred by finding Frederick was shielded from

suit by immunity; however, the court did not analyze Smith’s claims against Frederick

on immunity grounds. Instead, the court held that Smith lacked standing to sue

Frederick for refusing to prosecute a state bar complaint against Smith’s former

attorney, Mitchell Shook. We review de novo a district court’s dismissal of a

complaint for lack of standing. See Georgia State Conference of NAACP Branches

v. Cox, 183 F.3d 1259, 1262 (11th Cir. 1999).

This Court has not previously addressed the issue of whether a complainant has

standing to sue a state bar grievance officer based on the officer’s refusal to prosecute

an attorney for alleged ethics violations. It is clear, however, that “a citizen lacks

standing to contest the policies of the [criminal] prosecuting authority when he

himself is neither prosecuted nor threatened with prosecution. . . . [A] private citizen

lacks a judicially cognizable interest in the prosecution or nonprosecution of another.”

Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 1149 (1973). The Tenth

Circuit has relied on Linda R.S. to hold that a complainant lacked standing to sue,

inter alia, members of the Oklahoma State Bar’s Professional Responsibility

Commission for refusing to prosecute an ethics complaint, because the Commission

acted in a prosecutorial capacity. See Doyle v. Oklahoma Bar Assn., 998 F.2d 1559,

1566 (10th Cir. 1993) (citing Linda R.S., 410 U.S. at 619, 93 S.Ct. at 1149). 
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In this case, Frederick acted in a comparable prosecutorial capacity. As Deputy

General Counsel for the State Bar of Georgia, Frederick is empowered by the Georgia

Supreme Court to receive and screen grievances, and has discretion to dismiss a

grievance “analogous to the discretion exercised by a prosecutor in [the] criminal

justice system in deciding which defendants to prosecute and which cases to dismiss

prior to indictment.” Scanlon v. State Bar of Georgia, 443 S.E.2d 830, 831 (Ga.

1994).

We agree with the reasoning of the Tenth Circuit, and hold that Smith lacked

standing to challenge Frederick’s decision not to prosecute Smith’s former attorney.

Therefore, we affirm the judgment of the district court with respect to this issue.

B. Claim Against Foster:

The district court held that Foster was entitled to absolutely immunity from

liability for any undertaking in furtherance of his official duties. We review de novo

a district court’s grant of judicial immunity. See Ellis v. Coffee County Bd. of

Registrars, 981 F.2d 1185, 1189-90 (11th Cir. 1993).

This Court has not previously addressed the issue of whether judicial immunity

applies to a state administrative law judge like Foster. Generally, judicial immunity

applies to a judge who dealt with the plaintiff in a judicial capacity and did not act in
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 The Eleventh Circuit, in the en banc decision Bonner v. City of Prichard, 661 F.2d

1206, 1209 (11th Cir. 1981), adopted as precedent decisions of the former Fifth Circuit rendered

prior to October 1, 1981. 

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the “clear absence of all jurisdiction.” Harris v. Deveaux, 780 F.2d 911, 914 (11th

Cir. 1986). The Supreme Court has held that federal ALJ’s are entitled to absolute

judicial immunity because their responsibilities are functionally comparable to those

of trial judges, including issuing subpoenas, ruling on evidence, regulating hearings,

and making or recommending decisions. See Butz v. Economou, 438 U.S. 478, 513,

98 S.Ct. 2894, 2914 (1978). Relying on Butz, this Court has granted judicial

immunity to justices of the peace, despite their limited jurisdiction. See Turner v.

Raynes, 611 F.2d 92, 96-97 (5th Cir. 1980).1

 The Supreme Court has enumerated several factors used to determine whether

an official’s function is sufficiently judicial to confer absolute immunity. See

Cleavinger v. Saxner, 474 U.S. 193, 202, 106 S.Ct. 496, 501 (1985). These factors

include: “(a) the need to assure that the individual can perform his functions without

harassment or intimidation; (b) the presence of safeguards that reduce the need for

private damages actions as a means of controlling unconstitutional conduct; (c)

insulation from political influence; (d) the importance of precedent; (e) the adversary

nature of the process; and (f) the correctability of error on appeal.” Id.

The application of Cleavinger’s functional analysis to Foster supports a grant
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 The rest of Smith’s arguments on appeal are addressed in a separate, unpublished

appendix, which affirms the district court’s judgment with respect to Smith’s other claims. 

Appellant’s request for oral argument is denied.

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of judicial immunity. With respect to Smith’s employment appeal, Foster functioned

in a classic adjudicatory role as it is defined by the factors enumerated in Cleavinger.

The record indicates that Smith was provided with a full and fair adversarial hearing,

over which ALJ Foster presided. Foster performed judicial functions including, inter

alia, taking evidence and issuing a written opinion. Foster’s decision was appealable

to the State Personnel Board. Considering these facts, we conclude that Foster’s role

as a state ALJ was functionally comparable to that of a trial judge or a federal ALJ.

Further, as is the case with trial judges and federal ALJ’s, absolute immunity is

necessary for state ALJ’s to ensure that they can perform their functions without

harassment or intimidation. Therefore, we affirm the district court’s holding that

Foster was immune from suit for Smith’s claims concerning Foster’s performance of

his judicial duties.

For the foregoing reasons, the judgment of the district court with respect to

these issues relating to defendants Frederick and Foster is

AFFIRMED.

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