                                                                          FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                     UNITED STATES COURT OF APPEALS                   June 24, 2008
                                                                  Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                     Clerk of Court



    LAWRENCE L. KELLY,

                Plaintiff-Appellant,                      No. 07-3348
                                              (D.C. No. 5:04-CV-04069-JAR-JPO)
    v.                                                     (D. Kan.)

    TOPEKA HOUSING AUTHORITY,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before MURPHY, Circuit Judge, BRORBY, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.



         Lawrence L. Kelly appeals from the district court’s denial of his motion to

reopen. We have jurisdiction under 28 U.S.C. § 1291, and we dismiss this appeal

as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).

         The Topeka Housing Authority (THA) terminated Mr. Kelly’s federal

low-income housing assistance because of a charge that his son was involved in


*
       After examining appellant’s brief and the appellate record, this panel has
determined unanimously to grant appellant’s request for a decision without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
criminal drug activity at Mr. Kelly’s residence. Mr. Kelly then filed a one-page

complaint in the district court challenging the THA’s decision on a number of

grounds. The district court granted THA’s motion to dismiss under Fed. R.

Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted.

After a panel of this court affirmed, Mr. Kelly filed a motion to reopen the case,

which the district court denied. Another panel of this court affirmed that decision

on the basis of res judicata because, in his motion to reopen, Mr. Kelly had

simply reiterated his underlying claims.

      After his unsuccessful second appeal, Mr. Kelly filed yet another motion in

the district court to reopen the case, arguing that the district judge had closed the

case for no apparent reason and that he wanted a different judge to hear his

claims. He also implied that the district judge, and the three judges of this court

who affirmed the denial of his first motion to reopen, improperly restricted his

ability to pursue his case. The district court denied the motion, stating that the

case was closed and that Mr. Kelly “ha[d] articulated no basis for reopening the

case, other than refusing to accept the judgment of this Court and the Tenth

Circuit Court of Appeals.” R., Doc. 50. Mr. Kelly has appealed from that order.

      We treat Mr. Kelly’s motion to reopen as based on Fed. R. Civ. P. 60(b)

and review its denial for abuse of discretion. See Sorbo v. United Parcel Serv.,

432 F.3d 1169, 1177 (10th Cir. 2005). Because Mr. Kelly has proceeded pro se in




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this court and the district court, we view his filings liberally, but we do not act as

his advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).

      On appeal, Mr. Kelly again argues the merits of his claims, and also asserts

that “[t]his 1st Amendment Charge of the U.S. Constitution ‘Due Process of The

Law’ is against the four Judges that handled this case,” Aplt. Br. at 3, whom he

apparently accuses of conspiring to show favoritism to the THA, failing to apply

the proper law, and failing to consider evidence. But as the district court

correctly stated, Mr. Kelly provided no arguable basis in his motion for reopening

this case. He simply refuses to accept the judgment of the district court, affirmed

by this court, that his complaint failed to state a claim for relief under

Rule 12(b)(6). And his accusations of judicial misconduct are wholly speculative.

Accordingly, we deem this appeal frivolous, deny Mr. Kelly’s application to

proceed on appeal without prepayment of fees and/or costs, and DISMISS the

appeal. See 28 U.S.C. § 1915(e)(2)(B)(i). We caution Mr. Kelly that further

frivolous appellate filings in this matter may subject him to filing restrictions or

other sanctions.


                                                      Entered for the Court



                                                      Michael R. Murphy
                                                      Circuit Judge




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