                      United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 08-1694
                                    ___________

Willis Smith and Company, Inc.,         *
                                        *
            Appellant,                  *
                                        *   Appeals from the United States
      v.                                *   District Court for the
                                        *   Eastern District of Arkansas.
State of Arkansas; Arkansas State       *
Highway Department,                     *
                                        *
            Appellees.                  *

                                    ___________

                                    No. 08-1763
                                    ___________

Triple S Spraybays,                    *
                                       *
             Appellant,                *
                                       *
       v.                              *
                                       *
State of Arkansas; Arkansas State      *
Highway Department,                    *
                                       *
             Appellees.                *
                                  ___________

                            Submitted: September 26, 2008
                                Filed: December 1, 2008
                                ___________
Before MURPHY, BOWMAN, and BENTON, Circuit Judges.
                         ___________

BOWMAN, Circuit Judge.

      In these consolidated appeals, Willis Smith and Co. and Triple S Spraybays
appeal from orders of the District Court1 granting motions to dismiss filed in both
cases by the defendants, the State of Arkansas and the Arkansas State Highway and
Transportation Department (ASHTD). We affirm.

       The Appellants both own commercial property in Little Rock, Arkansas, that
is accessible from Watt Street via entrances that are only twenty to fifty feet from
Cantrell Road. On about February 1, 2006, Watt Street's access to Cantrell Road was
closed in order to make improvements to Cantrell Road, blocking easy access to
Appellants' properties. The Appellants each filed suit under 42 U.S.C. § 1983
(deprivation of rights under color of state law) alleging violations of the Takings and
Due Process Clauses of the United States Constitution and the Takings Clause of the
Arkansas Constitution. The Willis Smith court dismissed that case, holding that
Willis Smith failed to state a claim for relief and that the State and ASHTD were
entitled to immunity from suit in federal court under the Eleventh Amendment. For
the same reasons, citing the Willis Smith order, the Triple S court dismissed that case
as well. We review de novo. Owen v. Gen. Motors Corp., 533 F.3d 913, 918 (8th Cir.
2008); Monroe v. Ark. State Univ., 495 F.3d 591, 593–94 (8th Cir. 2007).

      In a case like this, it is not the state's alleged taking of property that would be
the "constitutional injury" but the failure to pay just compensation or provide "an
adequate postdeprivation remedy." City of Monterey v. Del Monte Dunes at
Monterey, Ltd., 526 U.S. 687, 710 (1999). "[I]f a State provides an adequate

      1
        For the Willis Smith case, the Honorable Susan Webber Wright, United States
District Judge for the Eastern District of Arkansas. For Triple S, the Honorable James
M. Moody, United States District Judge for the Eastern District of Arkansas.

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procedure for seeking just compensation, the property owner cannot claim a violation
of the Just Compensation Clause until it has used the procedure and been denied just
compensation." Williamson County Reg'l Planning Comm'n v. Hamilton Bank, 473
U.S. 172, 195 (1985). Here, the State provides just such a remedy through the
Arkansas State Claims Commission. Light v. Blackwell, 472 F. Supp. 333, 336–37
(E.D. Ark. 1979), affirmed without opinion, 620 F.2d 307 (8th Cir. 1980) (table). And
it is undisputed that the Appellants have not availed themselves of this remedy. "A
federal court . . . cannot entertain a takings claim under § 1983 unless or until the
complaining landowner has been denied an adequate postdeprivation remedy." City
of Monterey, 526 U.S. at 721 (emphasis added). Because the Appellants have not
presented their demands for compensation to the State Claims Commission, their
§ 1983 constitutional claims are not ripe for adjudication in federal court.

       In a somewhat circular argument, the Appellants raise a due process claim,
contending that the State Claims Commission remedy is not adequate because a
hearing before that body would not be a jury trial. Appellants rely on the Supreme
Court's holding in City of Monterey that a § 1983 suit seeking legal relief such as just
compensation for a taking "is an action at law within the meaning of the Seventh
Amendment" and that the plaintiff is therefore entitled to a jury trial on his claim. Id.
at 709. They maintain that City of Monterey abrogated Light. But the Supreme Court
did not say that an "adequate postdeprivation remedy" provided by a state must allow
for determination of just compensation by a jury, only that a plaintiff who brings a
§ 1983 takings suit in federal court in the absence of an adequate state remedy has a
right to a jury trial. Indeed, at the time of the alleged taking in City of Monterey, "the
State of California did not provide a compensatory remedy for temporary regulatory
takings." Id. at 710. As this Court has recently reiterated, since the Supreme Court's
opinion in City of Monterey, Arkansas does provide such a remedy. Cormack v.
Settle-Beshears, 474 F.3d 528, 531 (8th Cir. 2007).




                                           -3-
       The Appellants also challenge the conclusion that the State of Arkansas and
ASHTD, as an agency of the state, are entitled to immunity from suit under the
Eleventh Amendment. Because we hold that the cases were properly dismissed
because they are not ripe for federal court adjudication, we do not reach the
constitutional question posed by the sovereign immunity issue.

      We affirm the dismissals of these suits.
                      ______________________________




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