* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 29 1998 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SAMUEL B. WHALEY, Plaintiff-Appellant, and ETTA NICKS, (deceased), Plaintiff,

v.BILL KENNEDY, Hospital Administrator; RICK NELSON, Staff Physician for the Muskogee Regional Medical Center; ADAINA RILEY, Clerk of the District Court; LYLE BURRIS, Judge of the District Court; GEORGE JENNINGS, D.O., Defendants-Appellees. No. 97-7077 (D.C. No. 97-CV-234) (E.D. Okla.)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BRORBYand BRISCOE , Circuit Judges.-2-

Samuel B. Whaley brought this action pro se againstBill Kennedy, the administrator of the Muskogee Regional Medical Cent er, Rick Nelson, M.D., George Jennings, D.O., state district judge Lyle Bu rris, and state court clerk Adaina Riley, asserting claims under 42 U.S.C. § 19 83 and state law arising out of the death of Mr. Whaley’s mother. Mr. Whaley, w ho has also filed two lawsuits in state court asserting wrongful death cl aims on the same factual basis, alleged numerous acts and omissions by Mr. Kennedy, and Doctors Nelson and Jennings with respect to his mother’s treatment, an d asserted claims against Judge Burris and Clerk Riley in connection with the dismi ssal of his state court actions. The federal district court granted motions to dism iss by Mr. Kennedy, Dr. Nelson, and Judge Burris on the ground that Mr. Wha ley had failed to respond to those motions as required by the applicable local rule. The judge granted the motion of Dr. Jennings on the ground that Mr. Whale y had failed to allege Dr. Jennings was acting under color of state law as req uired by section 1983, and had failed to invoke diversity jurisdiction with respec t to the state law claims. The court dismissed the claim against Clerk Riley becau se her challenged actions were taken at the explicit direction of Judge Burris andwere therefore protected by absolute judicial immunity. We turn first to the claims dismissed for Mr. Whale y’s failure to comply with Eastern District of Oklahoma Local Rule 7.1(B) , which requires a pleading-3-

or response to a motion to be filed within fifteen days. Mr. Whaley did not respond to defendants’ motions to dismiss, and he d oes not address on appeal his failure to comply with the local rule. We review such a dismissal for abuse of discretion, considering the degree of actual prejudice to the defendants, the amount o f interference with the judicial process, and the culpability of the litigant. See Murray v. Archambo , 132 F.3d 609, 610-11 (10th Cir. 1998). Upon examining these factors, we find no abuse of discretion. Mr. Whaley has pursued his claims agai nst these defendants several times in two forums despite adverse ruling at everyturn. Indeed, the record contains evidence tending to show that Mr. Whaley h as embarked on a program of repetitious litigation for improper purposes. His refusal to recognize that he must comply with the rules of procedure and his failure to address the matter on appeal, together with the record of Mr. Whaley’s litigationhistory, convince us that the above factors outweigh the judicial system’s predis position to resolve cases on their merits. We also agree with the district court that Mr. Whal ey’s claims against Dr. Jennings are subject to dismissal. Mr. Whaley has failed to assert any conduct under color of state law by Dr. Jennings with respe ct to these claims. In fact, Mr. Whaley’s complaint expressly states that this defen dant was not acting under color of state law. Rec., vol. 1, doc. 1, at 2. T he record likewise contains no1 Mr. Whaley was incarcerated in the state prison sy stem at the time he

filed this action and at the time this appeal comme nsed. His request to proceed on appeal in forma pauperis was thus subject to the requirements of the Prison Litigation Reform Act, 28 U.S.C. § 1915. While his appeal was pending, however, he was released. We need not decide wheth er the Act continued to apply under these circumstances because we have con cluded that Mr. Whaley’s appeal is frivolous and we deny on that basis his application to proceed in forma pauperis. -4- indication that Mr. Whaley has satisfied the requir ements for asserting diversity jurisdiction with respect to his state law claims. With respect to the dismissal of Clerk Riley, the r ecord is undisputed that she refused to file papers presented by Mr. Whaley upon direct instructions of Judge Burris, who had imposed filing restrictions o n Mr. Whaley as a sanction. This court has held that a clerk is entitled to abs olute judicial immunity under these circumstances. See , e.g. , Turney v. O’Toole , 898 F.2d 1470, 1472 (10th Cir. 1990); Wiggins v. New Mexico State Supreme Cou rt Clerk , 664 F.2d 812, 815 (10th Cir. 1981). Accordingly, we conclude that this appeal is frivol ous. The application to proceed in forma pauperis is therefore DENIED and the appeal is DISMISSED

. 1
ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge