                Not for Publication in West's Federal Reporter

          United States Court of Appeals
                        For the First Circuit

No. 09-1049

                    JOHN PALERMO; JULIE PALERMO,

                       Plaintiffs, Appellants,

                                      v.

                        TOWN OF NORTH READING,

                         Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Rya W. Zobel, U.S. District Judge]


                                   Before

              Boudin, Stahl, and Lipez, Circuit Judges.



     Mark J. Favaloro, with whom Favaloro & Associates was on
brief, for appellants.
     Judy A. Levenson, with whom Deidre Brennan Regan and Brody,
Hardoon, Perkins & Kesten, LLP, were on brief, for appellee.



                              April 9, 2010
          STAHL, Circuit Judge.        Plaintiffs-appellants John and

Judy Palermo ("the Palermos") brought an amended complaint against

the Town of North Reading ("the Town") alleging an unconstitutional

taking of property and violation of their civil rights as protected

by 42 U.S.C. § 1983 and the Massachusetts Civil Rights Act.        The

district court dismissed the complaint in its entirety for failure

to state a claim under Federal Rule of Civil Procedure 12(b)(6).

The Palermos only appeal the dismissal of their federal civil

rights   claim   brought   pursuant    to   §   1983.   After   careful

consideration we affirm.

          In 1987, the Palermos purchased three lots of land in

North Reading, Massachusetts, and thereafter, in 1997, sought a

building permit for those lots.        The Town's building inspector

denied the permit, requiring that construction of the street upon

which the lots were located be completed first.          The Palermos

alleged that from 1997 to 2005, the Town allowed other property

owners to develop similar lots on unaccepted streets1 while denying

them the same ability. In 2004, the Palermos petitioned the Town's

Community Planning Commission to build out the adjacent street as

an unaccepted street.      The Town's Planner denied that request,

indicating that "a complete subdivision plan would be necessary."

The Palermos alleged that this treatment was contrary to the



     1
      An unaccepted street is a public right of way that has not
been built to municipal standards.

                                 -2-
treatment received by other property owners in the Town.       In 2005,

the Palermos learned that the Town's Board of Selectman had voted

to take their land by eminent domain and that they would be given

a pro tanto award of $15,250, an amount that the Palermos believed

was significantly lower than the market value of the land.

            The Palermos filed suit in state court seeking, among

other things, just compensation for the Town's eminent domain

taking pursuant to Massachusetts General Law ch. 79.          The Town

removed the action to federal court and the parties subsequently

filed a joint motion to stay the federal action and allow the

Palermos to pursue their state law eminent domain claim in state

court.   In the state court proceeding, the Town filed a pretrial

motion stating that it expected its appraiser to testify that the

Palermos'    property   was   either   unbuildable   or     effectively

unbuildable due to significant regulatory and physical hurdles that

would have to be overcome in order to obtain a building permit on

the property.   However, at trial, the appraiser testified that the

property was buildable and that the market value was $140,000. The

jury returned a verdict in favor of the Palermos for $184,000.

            Following the favorable state jury verdict, the Palermos

returned to federal court and filed a motion to reopen their

federal action.    The district court was uncertain as to what, if

anything, remained of the case following the jury verdict, and

ordered the Palermos to file an amended complaint.        The Palermos'


                                 -3-
amended   complaint   asserted   two   counts   against   the   Town:   (1)

violation of the Fifth Amendment of the U.S. Constitution and

Articles X and XII of the Massachusetts Constitution due to an

unconstitutional taking of the Palermos' property; and (2) "bad

faith" by the Town, which allegedly violated the Palermos' civil

rights as protected by 42 U.S.C. § 1983 and the Massachusetts Civil

Rights Act.   Count Two's "bad faith" charge was based on the Town's

denial of the building permit and its offer of a "de minimis" pro

tanto award in spite of the appraiser's significantly higher

valuation.

           Count Two did not state which of the Palermos' civil

rights the Town was alleged to have violated.        In addition, Count

Two only referred to acts committed by agents and employees of the

Town, rather than acts committed by the Town itself.             Finally,

Count Two contained no allegation that the alleged civil rights

violations were the result of a policy, practice, or custom of the

Town.

           In response to the amended complaint, the Town filed a

motion to dismiss for failure to state a claim under Federal Rule

of Civil Procedure 12(b)(6).     As to the federal civil rights claim

in Count Two, which is the only part of the amended complaint

before us on appeal, the Town urged the district court to dismiss

on the ground that municipal liability for civil rights claims can

only rest on actions committed by the municipality itself, not on


                                  -4-
respondeat superior or vicarious liability for acts committed by

employees of the Town.   See Monell v. Dep't of Soc. Servs. of New

York, 436 U.S. 658, 694-95 (1978).    Agreeing with the Town that the

Palermos had only alleged wrong-doing by "the individuals who

denied the requisite permits to develop the site and who ignored

the appraiser's opinion to offer a wholly inadequate award," rather

than wrong-doing by the Town itself, the district court dismissed

Count Two in its entirety.2

          On appeal to this court, the Palermos argue that the

motion to dismiss as to Count Two's federal civil rights claim was

improperly granted because the Town was the "moving force" behind

a "policy, practice, or custom" of "tak[ing] certain property of




     2
      The district court put forth a second ground for dismissal of
Count Two, that the Palermos failed to identify the constitutional
right(s) that they alleged were violated by the Town. "[T]he
complaint is unclear, at best, as to which of their constitutional
rights were violated and what specific conduct of the Town deprived
plaintiffs of those rights." Palermo v. Town of North Reading, No.
05-11782-RWZ (D. Mass. Nov. 14, 2008) (order granting motion to
dismiss).
     In addition, though not relevant to this appeal, we note that
the district court dismissed Count One because, "To the extent the
plaintiffs continue to complain about the inadequate pro tanto
award, their procedural due process rights have been fully
vindicated by the jury trial in which they were heard and the jury
clearly heard them." Id. The district court also noted that "[I]t
is difficult . . . to discern the basis for the claim that the
taking was unconstitutional and second, to reconcile that claim
with plaintiffs' acceptance of the award." Id. The Palermos did
not appeal from the dismissal of Count One.

                                -5-
its inhabitants by eminent domain through the use of an unlawful

process."3

             Having conducted a de novo review, TAG/ICIB Servs., Inc.

v. Pan Am. Grain Co., Inc., 215 F.3d 172, 175 (1st Cir. 2000), we

reject the Palermos' arguments on appeal.     The district court was

correct to conclude that where municipal civil rights liability

under § 1983 is premised solely on the actions of municipal

employees or representatives, as was the case in the Palermos'

amended complaint, liability does not attach. See Monell, 436 U.S.

at 694 ("We conclude, therefore, that a local government may not be

sued under § 1983 for an injury inflicted solely by its employees

or agents.").

             While it true, as the Palermos argue on appeal, that

municipal liability can attach where "execution of a government's

policy or custom . . . inflicts the injury," id.; see also Jett v.

Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989), the Palermos

never made such a Monell claim until their appeal to this court.

The Palermos did not mention the Town's policy, practice, or custom

in their amended complaint, opposition to defendant's motion to

dismiss, or anywhere else.4      "It is a bedrock rule that when a


     3
      The Palermos also argue, in response to the district court's
second ground for granting the motion to dismiss on the civil
rights claim, that the constitutional right violated by the Town
was the right to substantive due process.
     4
      Indeed, the amended complaint is premised on the notion that
the Palermos were treated differently than other property owners in

                                  -6-
party has not presented an argument to the district court, she may

not unveil it in the court of appeals."    United States v. Slade,

980 F.2d 27, 30 (1st Cir. 1992).   We decline the Palermos' request

to read their amended complaint so as to discover a claim that they

simply did not make.5

          We therefore affirm the district court's dismissal of the

Palermos' federal civil rights claim against the Town.




the Town, rather than the same as many other property owners as
part of the Town's policy, practice, or custom.       The Palermos
asserted at oral argument that Paragraph 26 of the amended
complaint raised a sufficient Monell claim for purposes of a motion
to dismiss. That paragraph alleged that "the actions, decisions,
and policies" of the Town "deprived the Plaintiffs of all
economically beneficial use of the Premises."      Under Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007), this allegation is not
nearly sufficient to support a Monell claim because the complaint
as a whole contained no factual assertions whatsoever regarding
Town policy. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)
("To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to 'state a claim to
relief that is plausible on its face.'") (quoting Twombly, 550 U.S.
at 570).    As noted above, the factual premise of the amended
complaint was that the Palermos had been treated differently from
other property owners, not similarly in accordance with Town
policy.
     5
      In addition, the Palermos make a brief argument that the
federal constitutional injury they suffered was the violation of
their right to substantive due process. This alleged injury was
not included in their amended complaint and we will not consider it
here for the first time. Slade, 980 F.2d at 30. We agree with the
district court that the Palermos failed to specify the
constitutional right upon which their § 1983 claim was premised.

                               -7-
