                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 08-14031                   MAY 8, 2009
                         Non-Argument Calendar            THOMAS K. KAHN
                                                              CLERK
                       ________________________

               D. C. Docket No. 08-00949-CV-ORL-31-KRS

MARCUS ROGOZINSKI,


                                                           Plaintiff-Appellant,

                                  versus

KARLA R. SPAULDING,
U.S. Magistrate Judge,
CLARENCE W. COUNTS, JR.,
Federal Public Defender,


                                                        Defendants-Appellees.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                              (May 8, 2009)

Before CARNES, BARKETT and WILSON, Circuit Judges.
PER CURIAM:

       Marcus Rogozinski appeals pro se from the district court’s dismissal of his

civil rights action, which arose out of events that occurred during his separate

criminal prosecution, against U.S. Magistrate Judge Karla R. Spaulding and

assistant federal public defender Clarence Counts. Rogozinski brought suit

pursuant to 42 U.S.C. § 1985 and Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971), alleging that Counts

violated his civil rights by refusing to file certain pretrial motions on his behalf in

the criminal case, that Judge Spaulding violated his civil rights by denying his

request for new counsel in that case and requiring him to submit any further

pretrial motions through Counts, and that Counts and Judge Spaulding conspired to

deny him equal access to the courts. The district court dismissed his complaint

“for reasons stated in open court” during a hearing held in Rogozinski’s criminal

case, but did not issue a written order. On appeal, Rogozinski argues that the

district court deprived him of due process due to bias and prejudice, and that the

district court erred in failing to allow him to serve his complaint on Judge

Spaulding and Counts.1

       A judge is absolutely immune from suit for actions taken in her judicial


       1
         Rogozinzki does not address the propriety of the district court’s ruling or the fact that
no written order was entered.

                                                 2
capacity, unless she acted in the clear absence of all jurisdiction. Sibley v. Lando,

437 F.3d 1067, 1070 (11th Cir. 2005). Whether a judge’s actions were taken in her

judicial capacity depends on whether: “(1) the act complained of constituted a

normal judicial function; (2) the events occurred in the judge’s chambers or in

open court; (3) the controversy involved a case pending before the judge; and (4)

the confrontation arose immediately out of a visit to the judge in [her] judicial

capacity.” Id. Federal public defenders are also immune from civil rights suits

arising out of alleged malpractice. See Sullens v. Carroll, 446 F.2d 1392, 1392-93

(5th Cir. 1971) (per curiam) (holding court-appointed lawyers were immune from

malpractice suits); O’Brien v. Colbath, 465 F.2d 358, 359 (5th Cir. 1972) (per

curiam) (extending Sullens to civil rights actions against public defenders in

federal prosecutions).

      Judge Spaulding’s ruling on Rogozinski’s request for new counsel

constituted a normal judicial function in a case pending before her. Her actions

took place in open court and arose out of an appearance in front of her, during a

hearing on Rogozinski’s request for new counsel. Therefore, Judge Spaulding was

acting in her judicial capacity and is entitled to absolute judicial immunity.

Likewise, because Rogozinski’s claim against Counts essentially alleges

malpractice in the pretrial stage of his criminal case, Counts is also immune from a



                                           3
civil rights suit. Therefore, Rogozinski’s complaint fails to state a claim for relief

against either defendant.

      AFFIRMED.




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