                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          August 30, 2005
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                  Clerk


    LAWRENCE L. KELLY,

                 Plaintiff-Appellant,

     v.                                                   No. 04-3448
                                                   (D.C. No. 04-CV-4069-JAR)
    TOPEKA HOUSING AUTHORITY,                               (D. Kan.)

                 Defendant-Appellee.




                             ORDER AND JUDGMENT            *




Before HENRY, ANDERSON , and TYMKOVICH , Circuit Judges.


          After examining the briefs and 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); 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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Plaintiff Lawrence L. Kelly, proceeding pro se, appeals the dismissal of this

action seeking money damages from defendant Topeka Housing Authority. We

affirm.

                                        Background

      Mr. Kelly resided with his adult son Michael in the Oakwood Manor

Apartments. His rent was paid by defendant under the federal program for

low-income housing assistance.        See 42 U.S.C. § 1437f. When Michael was

arrested and charged with drug-related offenses, including possession, Mr. Kelly

and Michael were evicted from the apartment. Oakwood Manor, a landlord

receiving rent payments from a federally subsidized source, had cause to

terminate the tenancy if a member of the tenant’s household engaged in any

“drug-related criminal activity on or near [the rented] premises.” 42 U.S.C.

1437f(d)(1)(B)(iii). Defendant ceased making Mr. Kelly’s rent payments because

of Michael’s drug-related offenses.      See 24 C.F.R. §§ 982.551(l);

982.553(b)(1)(i).

      Mr. Kelly sued, contending that his eviction was contrary to federal

constitutional and statutory law. He maintained that his son was not on his

premises at the time he was accused of possessing drugs; his son was not

convicted on any drug charge, but pled not guilty and was placed on diversion;

and the eviction was in retaliation for Mr. Kelly’s prior complaints against


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defendant. He alleged that he sustained money damages as a result of the

eviction.

       The district court liberally construed Mr. Kelly’s complaint to allege

several causes of action, held that none stated a claim upon which relief can be

granted, and dismissed the action without prejudice under Fed. R. Civ. P.

12(b)(6). On appeal, Mr. Kelly reasserts his claims made in the district court.         1



                                 Appellate Jurisdiction

       We must first determine whether this court has jurisdiction over the appeal.

Defendant filed a motion to dismiss for lack of jurisdiction on the ground that the

district court merely dismissed Mr. Kelly’s complaint without prejudice and did

not dismiss the entire action. The district court’s judgment stated that the action

was dismissed, as did its memorandum order of dismissal. R. doc. 25;              id. doc. 24,

at 10. Our review of those documents convinces us that the district court

intended to dismiss the entire action, and we therefore have jurisdiction to hear

the appeal.   Mobley v. McCormick , 40 F.3d 337, 339-40 (10th Cir. 1994); 28

U.S.C. § 1291.




1
      Mr. Kelly has alleged that the district judge ruled against him because she
was bribed to do so. This unsupported invective is not persuasive.

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                                          Merits

       We review de novo an order dismissing a complaint for failure to state a

claim for relief under Rule 12(b)(6).    Hartman v. Kickapoo Tribe Gaming

Comm’n , 319 F.3d 1230, 1234 (10th Cir. 2003). “We accept as true all

well-pleaded facts, as distinguished from conclusory allegations, and view those

facts in the light most favorable to the nonmoving party.”      Maher v. Durango

Metals, Inc. , 144 F.3d 1302, 1304 (10th Cir. 1998). Dismissal of a complaint

pursuant to Rule 12(b)(6) will be upheld only if “it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim which would entitle him

to relief.” Conley v. Gibson , 355 U.S. 41, 45-46 (1957). Mr. Kelly is

representing himself on appeal, so we construe his pleadings liberally.    Haines v.

Kerner , 404 U.S. 519, 520-21 (1972).

       We have carefully reviewed the record on appeal, as well as the briefs

submitted by the parties. Applying the standards set out above, we affirm the

judgment of dismissal substantially for the reasons stated in the district court’s

comprehensive memorandum order and opinion granting defendant’s motion to

dismiss, dated October 13, 2004.




                                            -4-
      Defendant’s motion to dismiss the appeal is denied. The judgment of the

district court is AFFIRMED. The mandate shall issue forthwith.



                                                 Entered for the Court



                                                 Stephen H. Anderson
                                                 Circuit Judge




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