Kelly v. Town of Chelmsford ( 2001 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 01-1863
DANNY M. KELLY,
Plaintiff, Appellant,
v.
TOWN OF CHELMSFORD,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Lipez, Circuit Judges.
Danny M. Kelly on brief pro se.
Joyce Frank, Gregg J. Corbo and Kopelman and Piage, P.C. on
brief for appellee.
December 14, 2001
Per Curiam. Danny M. Kelly appeals from the
district court’s dismissal of his 42 U.S.C. § 1983 cause of
action for failure to state a claim pursuant to Fed. R. Civ.
P. 12(b)(6). The only issue is whether Kelly’s complaint
challenging the town of Chelmsford’s taking of a portion of
his property through eminent domain was ripe for review.
In his complaint, Kelly alleged a number of reasons
in support of his assertion that the taking of his property
was improper, including that it was not taken for a public
use, that the taking reduced his property value, and that he
did not receive adequate compensation for the taking.
In this circuit, “exhaustion of state law remedies
-- whatever form they may take -- is a precondition to the
maintenance of a federal damages action under the Takings
Clause . . . .” Ochoa Realty Corp. v. Faria, 815 F.2d 812,
817 (1st Cir. 1987); see also Marietta Realty, Inc. v.
Springfield Redevelopment Authority, 902 F.Supp. 310, 313
(D. Mass. 1995) (plaintiff must first invoke the available
mechanisms for compensation from the defendant in order to
ripen a claim under the Fifth Amendment). This is true
whether the alleged wrongful taking is a result of negligent
or intentional conduct. Hudson v. Palmer, 468 U.S. 517, 533
(1984). The Massachusetts inverse condemnation statute,
Mass.Gen.L. ch. 79, provides such a remedy.
As Kelly conceded in his complaint below, the town
of Chelmsford took his property through eminent domain in
order to build a sewerage pumping station, very much a
public use of the property. The gravamen of his complaint
in the district court was an explicit challenge to the
adequacy of the proffered compensation as well as a request
for damages. As such, the district court properly dismissed
the complaint under Rule 12(b)(6) as not ripe for review
because of Kelly’s failure to first attempt to avail himself
of the Massachusetts inverse condemnation statute. The
district court’s judgment is AFFIRMED.
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