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

________________________ No. 99-8105 Non-Argument Calendar

________________________ D. C. Docket No. 98-00159-CV-6
CHARLES BRADFORD SMITH, Plaintiff-Appellant,

versus MITCHELL MCKINLEY SHOOK, CHRIS A. FOSTER, et al., Defendants-Appellees.

________________________ 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:2 Charles Bradford Smith appeals pro sefrom the district court’s order dismissing his claims against multiple defendants unde r 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 Frede rick, Deputy General Counsel for the State Bar of Georgia, and one against Chris Fo ster, 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 We resolve Smith’s other claims on appeal in an unpublished appendix.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 admini strative 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 terminat ed when he allegedly assa ulted a fellow correctional officer. Smith hired attorney Mitchell S hook to represent him at a State Personnel Board termination hearing before Admini strative Law Judge (“ALJ”) Chris Foster. Shook, ALJ Foster, and Department of Corr ections Counsel Stephen Pereira (not a party to this action) canceled the hearing. According to Smith, the hearing was not3 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 Smith and Shook agreed that Shook would no longer represent Smith.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 pa id him for representation. Smith proceeded without counsel at a resche duled hearing. Foster presided over the hearing and ruled against Smith. Smith co mplained 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 inthis opinion only two of Smith’s claims relating to Frederick and Fost er. 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 wa s entitled to judicial immunity for his actions taken as an administrative law judge. Smith appeals.

II. DISCUSSION A. Claim Against Frederick :4 Smith argues that the district court erre d 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 he ld that Smith lacked standing to sue Frederick for refusing to prosecute a st ate 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. SeeGeorgia State Confer ence of NAACP Branches v. Cox , 183 F.3d 1259, 1262 (11th Cir. 1999). This Court has not previously addressed the issue of whethe r 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 complain ant lacked standing to sue, inter alia , members of the Oklahoma Stat e 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).5 In this case, Frederick act ed in a comparable prosecutorial capacity. As Deputy General Counsel for the State Bar of Georgi a, Frederick is empowered by the Georgia Supreme Court to receive and screen grie vances, and has discretion to dismiss a grievance “analogous to the discretion ex ercised by a prosecuto r 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 di strict 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 in1 The Eleventh Circuit, in the en banc decision Bonner v. City of Prichard , 661 F.2d 1206, 1209 (11th Cir. 1981), adopted as precedent deci sions of the former Fifth Circuit rendered prior to October 1, 1981. 6 the “clear absence of all jurisdiction.” Harris v. Deveaux , 780 F.2d 911, 914 (11th Cir. 1986). The Suprem e Court has held that federal ALJ’s are entitled to absolute judicial immunity because their responsib ilities 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, de spite their limited jurisdiction. SeeTurner 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 judi cial 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 th e individual can perform his functions without harassment or intimidation; (b) the presen ce 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 co rrectability of error on appeal.” Id. The application of Cleavinger ’s functional analysis to Foster supports a grant2 The rest of Smith’s arguments on appeal are addressed in a separate, unpublished appendix, which affirms the district court’s j udgment with respect to Smith’s other claims. Appellant’s request for oral argument is denied. 7 of judicial immunity. With respect to Smith’s employment appeal, Foster functioned in a classic adjudicatory role as it is defi ned by the factors enumerated in Cleavinger

. The record indicates that Sm ith was provided with a full and fair adversarial hearing, over which ALJ Foster presided. Foster pe rformed judicial functions including, inter alia , taking evidence and issuing a written opini on. Foster’s decision was appealable to the State Personnel Board. Considering th ese 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 thatthey 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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