Kelly v. Town of Chelmsford

472 F. App'x 53

Opinion

SUMMARY ORDER

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 Fed. Appx. 18 (1st Cir.2001) (unpublished); Kelly v. Town of Chelmsford, 874 N.E.2d 1143 (Mass.App.Ct.2007) (unpublished); Kelly v. Day, 585 F.Supp.2d 211 (D.Mass.2008).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.