11-3418-cv
Kelly v. Town of Chelmsford

                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 26th day of June, two thousand twelve.

PRESENT: PIERRE N. LEVAL,
         REENA RAGGI,
         DENNY CHIN,
                    Circuit Judges.

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DANNY M. KELLY,
                                       Plaintiff-Appellant,
                              v.                                                        No. 11-3418-cv

TOWN OF CHELMSFORD,
                 Defendant-Appellee.
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FOR APPELLANT:                         Danny M. Kelly, pro se, Chelmsford, Massachusetts.

FOR APPELLEES:                         Greg J. Corbo, Jeffrey T. Blake, Kopelman and Paige, P.C.,
                                       Boston, Massachusetts.

          Appeal from a judgment of the United States District Court for the District of

Connecticut (Warren W. Eginton, Judge; Holly B. Fitzsimmons, Magistrate Judge).

          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on August 11, 2011, is AFFIRMED.
       Plaintiff Danny M. Kelly, pro se, appeals from the district court’s judgment dismissing

his action sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim on

which relief may be granted. We review a § 1915(e) dismissal de novo. See Giano v. Goord,

250 F.3d 146, 149–50 (2d Cir. 2001). We assume the parties’ familiarity with the facts and

record of the underlying proceedings, which we reference only as necessary to explain our

decision to affirm.

       The district court properly dismissed Kelly’s action. Kelly has three times previously

attempted to litigate this claim. See Kelly v. Town of Chelmsford, 23 F. App’x 18 (1st Cir.

2001) (unpublished); Kelly v. Town of Chelmsford, 874 N.E.2d 1143 (Mass. App. Ct. 2007)

(unpublished); Kelly v. Day, 585 F. Supp. 2d 211 (D. Mass. 2008). The claim was each time

dismissed because of Kelly’s failure to exhaust his state remedy under Chapter 79 of the

Massachusetts General Laws. He is not entitled to re-litigate the issue of the need to exhaust

his state remedy. He does not claim to have since exhausted his state remedy by suing under

Chapter 79, and his allowable time to do so has expired, see Mass. Gen. Laws ch. 79, § 16.

Accordingly, his claim is now barred.

       We have considered the other arguments raised by Kelly on appeal and conclude that

they are without merit. Accordingly, it is hereby ORDERED that the judgment of the district

court is AFFIRMED.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




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