                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 02-1784
                                  ___________

Glenn R. Waite,                      *
                                     *
                   Appellant,        *
                                     *
      v.                             * Appeal from the United States
                                     * District Court for the District
Richard G. Kopf; David R. Hansen;    * of Nebraska.
Morris Sheppard Arnold; Kermit       *
Bye; Douglas D. DeLair; DeLair &     *      [UNPUBLISHED]
DeLair, a Partnership,               *
                                     *
                   Appellees.        *
                                ___________

                            Submitted: July 11, 2002

                                 Filed: July 26, 2002
                                  ___________

Before McMILLIAN, FAGG, and BOWMAN, Circuit Judges.
                            ___________

PER CURIAM.

      Glenn R. Waite, proceeding pro se, appeals the district court’s* decision to
dismiss his claims against attorney Douglas D. DeLair, the DeLair partnership, and
Judge Richard G. Kopf. These claims are part of Waite’s unsuccessful thirteen-year


      *
       The Honorable Joseph F. Bataillon, United States District Judge for the
District of Nebraska.
string of lawsuits which began with the medical malpractice claims Waite brought on
behalf of his mother’s estate after her death in 1989. We review the district court’s
findings of fact for clear error and its conclusions of law de novo. Randolph v.
Kemna, 276 F.3d 401, 403 (8th Cir. 2002).

       Waite hired DeLair to represent him in a legal malpractice action against the
attorney who brought the original medical malpractice claims. The parties agree that
DeLair’s last action as Waite’s attorney was to notify Waite on April 20, 1998 that
Waite had lost that legal malpractice lawsuit. This letter was sent shortly after the
thirty-day limit for filing an appeal had passed. Waite then waited more than three
years before filing his legal malpractice claim against DeLair. The district court
properly concluded Waite’s claim against DeLair is barred by the two-year Nebraska
statute of limitations. Neb. Rev. Stat. § 25-222 (1995).

      Waite now raises two claims relating to Judge Kopf’s July 19, 2000 order
dismissing his lawsuit against DeLair. First, Waite contends Judge Kopf’s decision
was not a final order, thus the Eighth Circuit did not have jurisdiction to review that
order and the district court committed error when it recently enforced the Eighth
Circuit’s decision. Judge Kopf’s order stated the district court was “enter[ing]
summary judgment for [DeLair] and against Waite in his personal capacity,
dismissing this case with prejudice for the reasons stated in the court’s prior
memorandum and order.” Waite v. DeLair, No. 4:98CV3303, slip. op. at 1 (D. Neb.
July 19, 2000). Judge Kopf’s language makes clear that the July 19, 2000 decision
was a final order the Eighth Circuit could review. The district court acted properly
to enforce the Eighth Circuit’s decision in this case.

      Second, Waite claims the district court committed error in this diversity action
when it granted Judge Kopf’s motion to dismiss the claims against him. Because
Waite sued Judge Kopf in his official capacity, this lawsuit is against the federal
government, which has not expressly waived its sovereign immunity in this

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circumstance. See Kentucky v. Graham, 473 U.S. 159, 166 (1985); United States v.
Mitchell, 445 U.S. 535, 538 (1980). The district court correctly acknowledged that
it lacked subject matter jurisdiction because of the United States’s sovereign
immunity. Fed. R. Civ. Proc. 12(b)(1). Waite also contends Judge Kopf’s order was
beyond his statutory powers or otherwise constitutionally invalid, but we find no
support for these claims. We agree with the district court that even if Waite had sued
Kopf in his individual capacity, Waite has failed to state a claim for which relief
could be granted because Judge Kopf is protected by absolute immunity for
performing his judicial functions. Fed. R. Civ. Proc. 12(b)(6).

       Finally, we note that Eighth Circuit judges David R. Hansen, Morris Sheppard
Arnold, and Kermit E. Bye are improperly designated as parties to this appeal. When
Waite filed his claims in the district court against Judge Kopf, DeLair, and the DeLair
partnership, Waite also added the three Eighth Circuit judges who had ruled against
him during his first appeal as parties to his present lawsuit. Because Waite did not
include the Eighth Circuit judges as parties to his amended complaint, however, the
district court did not rule on any issues directly involving the named Eighth Circuit
judges. Waite does not name or bring any claims against the Eighth Circuit judges
in his filings as part of this appeal.

       The district court has carefully reviewed all of Waite’s pleadings and we agree
with its conclusion that this action is no more than an impermissible attempt to attack
collaterally the resolution of Waite’s claims against DeLair. Although we do not
choose to levy financial sanctions against Waite today, Waite is advised that if he
continues to file frivolous lawsuits, this court or others may do so. For the reasons
stated above, we affirm the judgment of the district court. See 8th Cir. R. 47B.




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A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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