                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                  UNITED STATES COURT OF APPEALS                         DEC 20 2004

                                  TENTH CIRCUIT                     PATRICK FISHER
                                                                             Clerk


 BARTLETT ELLIOTT,

           Plaintiff-Appellant,

 v.
                                                        No. 04-2154
 MARY E. MAY, Trustee; PHILIP J.
                                               (D.C. No. CIV-04-426-BB/DJS)
 MONTOYA, Trustee; NORMAN H.
                                                       (New Mexico)
 MEYER, JR., Acting Clerk of Court,

           Defendants-Appellees.

 -------------------------------------------
 BARTLETT ELLIOTT,

           Plaintiff-Appellant,
                                                         No. 04-2165
                                               (D.C. No. CIV-04-386-MV/WDS)
 v.
                                                        (New Mexico)
 BANK ONE; DM FEDERAL CREDIT
 UNION; COMPASS BANK,

           Defendants-Appellees.




                           ORDER AND JUDGMENT *

       After examining appellant’s brief and the appellate record, this panel has
       *

determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
Before SEYMOUR, LUCERO, and O’BRIEN, Circuit Judges.


      Bartlett Elliott, proceeding pro se, brings these appeals to challenge the

dismissal of two separate civil actions. 1 In one case, Mr. Elliott brought a civil

rights action under 42 U.S.C. § 1983 against several private mortgage lenders for

failing to refinance his home loan. In his second action, Mr. Elliott sued two

bankruptcy trustees and a federal district court staff member for negligence in

permitting his bankruptcy petition to be filed. Both of Mr. Elliott’s actions were

dismissed for failure to state a claim. Mr. Elliott appeals. We exercise

jurisdiction under 28 U.S.C. § 1291, and liberally construe Mr. Elliott’s filings.

See Haines v. Kerner, 404 U.S. 519, 520 (1972); Cummings v. Evans, 161 F.3d

610, 613 (10th Cir. 1998). Nonetheless, we conclude the district courts were

correct in dismissing Mr. Elliott’s actions. We therefore affirm.

                                          I

      In Mr. Elliott’s § 1983 action, he sought relief from defendants Bank One,

DM Federal Credit Union, and Compass Bank for refusing to refinance his home

loan. In his complaint, Mr. Elliott alleged that defendants’ refusal resulted in the



terms and conditions of 10th Cir. R. 36.3.
      1
        Mr. Elliott’s two actions were filed and decided separately, and Mr. Elliott
filed separate appeals. For the ease of disposition, however, we have combined
the appeals and address them both in this opinion.

                                         -2-
violation of his “rights as guaranteed by the United States Constitution . . . that

being the right to LIFE, LIBERTY, AND THE PURSUIT OF HAPPINESS.”

Rec., No. 04-2165, doc. 1 at 2. He also appeared to allege that he was being

discriminated against by defendants because he was seeking to refinance his

single-wide manufactured home. Id. at 3.

      Defendants filed motions with the district court to dismiss Mr. Elliott’s

action for failure to state a claim, which the court granted. We review a district

court’s dismissal for failure to state a claim de novo. Felix v. Lucent Techs., Inc.,

387 F.3d 1146, 1153 (10th Cir. 2004). “Dismissal of a pro se complaint for

failure to state a claim is proper only where it is obvious that the plaintiff cannot

prevail on the facts he has alleged and it would be futile to give him an

opportunity to amend.” Perkins v. Kansas Dep’t of Corrs., 165 F.3d 803, 806

(10th Cir. 1999). Having reviewed Mr. Elliott’s complaint, treating as true all

well-pleaded facts and drawing all reasonable inferences in favor of Mr. Elliott,

Housing Auth. of the Kaw Tribe of Indians of Oklahoma v. City of Ponca City,

952 F.2d 1183, 1187 (10th Cir. 1991), we agree with the district court that Mr.

Elliott failed to state a claim upon which relief could be granted in his § 1983

complaint.

      Pursuant to § 1983, Mr. Elliott must establish that defendants acted under

color of state law and deprived Mr. Elliott of a federal or constitutional right. See


                                          -3-
Sigmon v. CommunityCare HMO, Inc., 234 F.3d 1121, 1125 (10th Cir. 2000). Mr.

Elliott has failed to do either of these things. First, Mr. Elliott has not shown in

either his complaint or his filings on appeal that defendants, who are private

entities, were acting under “color of state law.” Nor has Mr. Elliott shown that

defendants’ denial of his request to refinance his home, which was allegedly

based on discrimination against owners of single-wide manufactured homes,

implicated rights protected by the Constitution or the laws of the United States.

The district court therefore did not err in dismissing Mr. Elliott’s § 1983 claim

against defendant lenders.

                                          II

      In Mr. Elliott’s second action, he sued two bankruptcy trustees and a

federal district court clerk for negligence in processing Mr. Elliott’s Chapter 7

bankruptcy petition. In particular, he contended the trustees and clerk should

have reviewed his petition prior to permitting him to file it, and from that review

should have known Mr. Elliott would be unable to receive a Chapter 7 discharge.

Mr. Elliott essentially contends defendants had a duty not to process his

bankruptcy petition and should have refused to accept his $200 processing fee.

Mr. Elliott also expresses great consternation that he was denied the opportunity

to file his bankruptcy petition in forma pauperis.

      On its own motion, the district court reviewed Mr. Elliott’s complaint and


                                          -4-
dismissed it for failure to state any claim against the named defendants. As with

the dismissal of Mr. Elliott’s § 1983 action, we review the district court’s

dismissal of the instant case under the same de novo standard, employing the

same principles articulated above. See Felix, 387 F.3d at 1153; Perkins, 165 F.3d

at 806; Housing Auth. of the Kaw Tribe of Indians of Oklahoma, 952 F.2d at

1187. The district court did not err in dismissing Mr. Elliott’s negligence action.

      First, our research has not uncovered any statutory or common law duty

which requires a court employee, whether an official clerk of the court or a

member of the court’s staff, to review the proposed filings of litigants for

accuracy or legal validity and, upon such review, determine whether the party can

file the action. Second, the statutory duties assigned to bankruptcy trustees do not

include a duty to shield petitioners from their own ignorance of the law, or to

supervise court employees who receive bankruptcy filings. In In re Castillo, 297

F.3d 940 (9th Cir. 2002), the court outlined the duties of bankruptcy trustees. It

noted that pursuant to 11 U.S.C. §§ 704, 1302, and 1304, a

      trustee is to gather and liquidate the property of the estate, to be
      accountable for the estate, ensure that the debtor performs his or her
      obligations, investigate the finances of the debtor, review the proofs
      of claim, and where appropriate, oppose the debtor’s discharge, be
      available to provide relevant information to parties-in-interest, and
      by court order, operate the business on a short-term basis. The
      trustee also must prepare the final report and an accounting for the
      administration of the estate.

Id. at 949-951. Nowhere in this recital of a trustee’s statutory duties is there a

                                          -5-
requirement that a trustee ensure before an individual files his bankruptcy

petition, either by her own review or by her supervision of court staff, that the

petition is being appropriately filed. Therefore, Mr. Elliott failed to state a claim

against the defendants for which relief can be granted. 2

      We AFFIRM the dismissals of Mr. Elliott’s § 1983 and negligence actions.

                                        ENTERED FOR THE COURT

                                        Stephanie K. Seymour
                                        Circuit Judge




      2
       We clarify for Mr. Elliott that in forma pauperis petitions are not available
in bankruptcy proceedings. See United States v. Kras, 409 U.S. 434, 439-40
(1973); see also Eilertson v. United States (In re Eilertson), 211 B.R. 526, 531
n.3 (D. S.C. 1997); In re Lamb, 206 B.R. 527, 528 (E.D. Mo. 1997).


                                          -6-
