Milburn v. City of Lebanon
OPINION AND ORDER: Denying 23 Defendant's Third Motion to Dismiss for Failure to State a Claim. For the reasons set forth in the opinion and order granting defendant's first motion to dismiss, all proceedings in this case are st ayed pending the Oregon Courts' final resolution of City of Lebanon v. Milburn, which is currently pending before the Oregon Court of Appeals. A joint status report is due six months after the date of this opinion or thirty days after a decision is issued in the state-court case, whichever is earlier. Signed on 5/16/2017 by Judge Ann L. Aiken. (ck)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
SILVIA LEE MILBURN,
Case No. 6:16-cv-00435-AA
OPINION AND ORDER
CITY OF LEBANON, a municipality,
Plaintiff Silvia Lee Milburn brings this action pursuant to 42 U.S.C. §§ 1981 and 1983
against defendant City of Lebanon. Defendant permitted plaintiffs dog to be adopted by a new
owner before plaintiff's conviction for animal abuse was final on appeal. Plaintiff, who has
since been acquitted, contends that the forfeiture of her dog violated her right to procedural due
process. Defendant now moves to dismiss the Second Amended Complaint for failure to state a
claim. For the reasons set forth below, defendant's motion is denied.
Page 1 - OPINION AND ORDER
In September 2013, a Lebanon police officer removed plaintiffs dog, Sam, from
plaintiffs possession. Second Am. Comp!. if 7 (doc. 21). Plaintiff was later convicted of animal
abuse in Lebanon Municipal Cami. Id.
if 12. As part of plaintiffs sentence, the municipal court
judge ordered that the dog would be released to Linn County Animal Control for adoption.
Warren Deel. Ex. 5 at 6 (doc. 9-1). The dog was adopted by a new owner with the assistance of
Safe Haven Humane Society. Second Am. Comp!. ilil 19-20; Warren Deel. Ex. 5 at 31.
Meanwhile, plaintiff appealed her conviction to Linn County Circuit Comt, where a jury
acquitted her on all charges. 1 Warren Deel. Ex. 5 at 9. After the acquittal, plaintiff filed a
motion for return of property, and the circuit court ordered defendant to return the dog. Id. at 28.
Defendant has not complied with that order, which is now on appeal in state comt. Warren Deel.
Plaintiff then filed this action. This Court granted defendant's motions to dismiss the
initial complaint and First Amended Complaint. See Milburn v. City of Lebanon, -
F. Supp. 3d
- , 2016 WL 6908100 (D. Or. Nov. 21, 2016); Milburn v. City of Lebanon, 2016 WL 4163551
(D. Or. Jul. 3, 2016). In the now-operative Second Amended Complaint, plaintiff argues that by
permitting the dog to be adopted by a new owner before her conviction was final on appeal and
without additional safeguards similar to those present in civil forfeiture proceedings, defendant
deprived her of her property without due process of law.
Second Am. Comp!. ilil 43-44.
Defendant now moves to dismiss the Second Amended Complaint for failure to state a claim.
Oregon law provides criminal defendants in some municipal courts, including
defendant's, a right to appeal to county circuit court. Or. Rev. Stat. § 221.359. The county court
trial is a de novo proceeding. City of Eugene v. Smyth, 243 P.3d 854, 857 (Or. Ct. App. 2010).
Page 2 - OPINION AND ORDER
When considering a motion to dismiss, a court construes a complaint in favor of the
plaintiff and takes all factual allegations as true. "[F]or a complaint to survive a motion to
dismiss, the non-conclusory 'factual content,' and reasonable inferences from that content, must
be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv., 572
F.3d 962, 969 (9th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). "A claim
has facial plausibility when the plaintiff pleads factual content that allows the comi to draw the
reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at
678. "Dismissal under Rule 12(b)(6) is proper only when the complaint either (!) lacks a
cognizable legal theory or (2) fails to allege sufficient facts to supp01i a cognizable legal theory."
Zixiang Liv. Keny, 710 F.3d 995, 999 (9th Cir. 2013).
The Due Process Clause of the Fourteenth Amendment provides that no state shall
"deprive any person of life, liberty, or property, without due process of law[.]" U.S. Const.
amend. XIV, § I. "Procedural due process rules are meant to protect persons not from the
deprivation, but from the mistaken deprivation or unjustified deprivation of life, liberty, or
property." Carey v. Piphus, 435 U.S. 247, 259 (1978). "A procedural due process claim has two
distinct clements: (1) a deprivation of a constitutionally protected liberty or property interest, and
(2) a denial of adequate procedural protections." Brewster v. Ed. of Educ. of Lynwood Unified
Sch. Dist., 149 F.3d 971, 982 (9th Cir. 1998).
It is undisputed that plaintiff has a prope1iy interest in the dog. See Or. Rev. Stat. §
609.020 (declaring dogs to be personal property). The question is whether she has alleged denial
of adequate procedural protections in connection with the deprivation of that interest. "The base
requirement of the Due Process Clause is that a person deprived of prope1iy be given an
Page 3 - OPINION AND ORDER
opportunity to be heard 'at a meaningful time and in a meaningful manner."' Brewster, 149 F.3d
at 984 (quoting Armstrong v. i\1anzo, 380 U.S. 545, 552 (1965)). To determine whether the
process afforded was adequate, courts weigh three factors:
First, the private interest that will be affected by the official action; second, the
risk of an erroneous deprivation of such interest through the procedures used, and
the probable value, if any, of additional or substitute procedural safeguards; and
finally, the Government's interest, including the function involved and the fiscal
and administrative burdens that the additional or substitute procedural
requirement would entail.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
Plaintiff asserts that until her conviction was final on appeal, defendant should not have
taken action that would permanently deprive her of the dog without affording her additional
She cites several Oregon statutes as examples of the sort of additional process
defendant could have provided.
Construing the complaint in plaintiffs favor, the Second
Amended Complaint adequately states a procedural due process claim.2
Oregon law contains both criminal and civil forfeiture statutes. See Or. Rev. Stat. §
131.582 (describing the process for criminal forfeiture); id. § 167.347 (providing for the civil
forfeiture of impounded animals when ce1tain animal-abuse charges have are pending).
Plaintiff also argues that the municipal court lacked jurisdiction to order her to forfeit
the dog and that defendant had the "legal obligation" to return the dog to her as soon as she filed
her appeal in circuit court. Id.~~ 13-14. The extent ofa court's jurisdiction is, of course, paitly
determined by the limits of due process. See J. Mcintyre Mach., Ltd. v. Nicastro, 564 U.S. 873,
879-80 (2011). Because defendant's motion to dismiss can be resolved on other grounds and
because plaintiff made this precise argument in the appeal pending before the Oregon Court of
Appeals, however, I express no opinion on the viability of such a claim here. See Mi/bum, 2016
WL 4163551 at *1-*2 (explaining that abstention is warranted in this case pursuant to the three
factors set out in lvfiddlesex County Ethics Commission v. Garden State Bar Ass'n, 457 U.S. 423,
Page 4 - OPINION AND ORDER
Defendant never initiated forfeiture proceedings with respect to the dog. 3 Instead, the forfeiture
was imposed as patt of plaintiffs municipal-court sentence. It is undisputed that a forfeiture
order may be a valid part of a criminal sentence in an animal abuse case. Or. Rev. Stat. §
167.350(1); State v. Branstetter, 29 P.3d 1121, 1125 (Or. 2001). But it is also hornbook law that
when a conviction is ove1turned on appeal, the entire sentence provision -
must be vacated. See United States v. Rains, -
including the forfeiture
F. App'x - , 2017 WL 24638, at
*2 (9th Cir. Jan. 3, 2017) (unpublished). The parties have cited no case law, in this jurisdiction
or elsewhere, addressing whether the due process clause permits the forfeiture portion of a
sentence to be executed while an appeal is still pending and without providing additional
It may be that the due process clause required additional procedural safeguards here for
two reasons. First, it is generally recognized that "pets have a value in excess of that which
would ordinarily attach to property, because unlike other forms of personal property, they are not
fungible." lvfcDouga/l v. Lamm, 48 A.3d 312, 324 (N.J. 2012). In the context of the lvfathews
analysis, when the property interest at issue is a pet, the first factor weighs more heavily in favor
of additional procedurnl safeguards. Second, plaintiff's appeal was atypical because it triggered
a right to a de nova jury trial at which she enjoyed the presumption of innocence.
A1athews, that fact increased the likelihood of an erroneous deprivation more than a typical
appeal would have done, because acquittal at a new trial (where the government must prove the
Although Or. Rev. Stat. § 131.582 expressly contemplates foreclosure proceedings
initiative by a city attorney, Or. Rev. Stat.§ 167.347 does not reference municipalities. Plaintiff
does not argue that defendant was bound to follow section 167.347, but contends that defendant
could have implemented similar procedures pursuant to its authority under the City of Lebanon
Page 5 - OPINION AND ORDER
charges beyond a reasonable doubt) is more likely than reversal on appeal (where the reviewing
comt typically applies a deferential standard of review.)
I do not decide today that the due process clause required more process than was offered.
Without any smt of evidentiary record, I am unable to consider countervailing interests that
might weigh in favor of fewer procedural protections. I merely decide that, at this stage, I am
unable to dismiss plaintiffs due process claim as a matter of law. Cf Tarhuni v. Holder, 8 F.
Supp. 3d 1253, 1275-76 (D. Or. 2014) (holding that the plaintiff had adequately stated a due
process claim with respect to his placement on a government "no fly" list but that "substantial
development of the record" was required before that claim could be resolved on the merits).
Defendant argues that plaintiffs procedural due process rights cannot have been violated
because "the dog was forfeited pursuant to a criminal judgment after [plaintiff! received the
pinnacle of all process -
a jury trial." Def.'s Mot. Dismiss (Third) at 7 (doc. 23). More
specifically, defendant contends that because plaintiff was convicted in municipal court using the
beyond-a-reasonable-doubt burden of proof, she would not have benefited from additional
procedures such as those in Or. Rev. Stat. § 167.347, which imposes a far lower probable-cause
burden of proof. But the jury trial focused on plaintiffs guilt or innocence of the charges, not on
what would happen to the dog before plaintiffs conviction was final. Moreover, defendant
ignores a critical component of Or. Rev. Stat. § 167.347. Under that law, ifthe judge finds that
there is probable cause to support forfeiture of an impounded animal, the defendant must be
given the opportunity to post a bond "in an amount determined by the court to be sufficient to
repay all reasonable costs incurred, and anticipated to be incurred, by the petitioner in caring for
the animal from the date of the initial impoundment to the date of trial." Or. Rev. Stat. §
167.347(3); see also State v. Branstetter, 45 P.3d 137, 141 (Or. Ct. App. 2002) (Armstrong, J.,
Page 6 - OPINION AND ORDER
concurring) (stating that because the plaintiff had been afforded the oppmiunity to post a bond he
had the financial means to pay, he was precluded from arguing that his due process rights were
violated by the absence of a provision for getting the forfeited property back after he was
acquitted of animal abuse). Plaintiff never was given the oppmiunity to pay the cost of the dog's
care in order to preserve her ability to get the dog back if she were acquitted on appeal. A jury
could conclude that defendant should have known that the failure to provide such an opportunity
here increased the risk of erroneous deprivation to a constitutionally intolerable level.
Defendant also contends that plaintiffs claim fails as a matter oflaw because she has not
alleged facts from which a jury could infer that defendant was deliberately indifferent to
plaintiffs constitutional rights. Def.'s Mot. Dismiss (Third) at 3. When a plaintiff alleges
municipal liability under section 1983, the "first inquiry" is whether the constitutional violation
arises from a "municipal custom or policy." Castro v. Cnty. of L.A., 833 F.3d 1060, 1075 (9th
Cir. 2016) (en bane) (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1978)). Such a
policy must be a "deliberate choice to follow a course of action ... made from among various
alternatives by the official or officials responsible for establishing final policy with respect to the
subject matter in question." Id. (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 483
(1986) (plurality opinion)). In addition to identifying a "custom or policy, attributable to the
municipality, that caused [the] injury," the plaintiff "must also demonstrate that the custom or
policy was adhered to with deliberate indifference" to constitutional rights. Id. (quoting City of
Canton, 489 U.S. at 392).
The allegations in the complaint, if proven, could support findings of both official policy
and deliberate indifference. Jn the procedural due process context, "deliberate indifference" can
mean that the failure to provide additional procedural protections created an obvious risk of an
Page 7 - OPINION AND ORDER
erroneous deprivation of prope1ty. Here, even after plaintiff was convicted and sentenced in
municipal court, she had a statutory right to a de nova jury trial at which she enjoyed the
presumption of innocence. A factfinder could conclude that under those unique circumstances,
defendant was deliberately indifferent to plaintiffs property rights when, pursuant to official
policy, it executed the terms of plaintiff's municipal-court sentence before her circuit-court trial
Finally, defendant avers that Or. Rev. Stat. § 133.633 provided plaintiff all the additional
process she was due. That statute, which governs motions for return of property, provides that
an individual "from whose person, property or premises things have been seized may move the
appropriate court to return things seized to the person or premises to which they were seized."
Or. Rev. Stat.§ 133.633(l)(a). Defendant faults plaintiff for failing to comply with the statute's
time limit, which states that the motion is to be filed "[w]ithin 90 days after actual notice of any
Id. § 133.633(1).
Defendant further contends that, notwithstanding that failure,
plaintiff "was still afforded" the "benefit" of the statute. Def.'s Mot. Dismiss (Third) at 6.
Dismissing this lawsuit on those grounds would be positively Kafkaesque. First, plaintiff
does not dispute that the police officer had the legal authority to seize her dog while the criminal
charges were pending or that probable cause supported those charges. It is therefore nonsensical
to suggest that she should have filed a motion for return of property within the ninety-day time
limit here, because any such pretrial motion would have been denied.
See EEOC v. Pan
American World Airways, Inc., 897 F.2d 1499, 1509 n.12 (9th Cir. 1990) ("Whatever due
process may require, it certainly does not require a futile act."). Second, defendant cannot
seriously contend that plaintiff has received the "benefit" of section 133.633. The benefit of that
law is the return of property. Plaintiff does not have her property back; she has a comt order
Page 8 - OPINION AND ORDER
with which defendant has not complied. Indeed, it may well be that defendant cannot comply; it
appears defendant does not know who the dog's new owner is, and even if defendant did know,
it is unclear what legal authority it would have to take the dog back at this juncture.
Because plaintiffs Second Amended Complaint states a procedural due process claim,
defendant's motion to dismiss must be denied.
Defendant's Motion to Dismiss (Third) (doc. 23) is DENIED.
For the reasons set fmth in the opinion and order granting defendant's first motion to
dismiss, all proceedings in this case are STA YEO pending the Oregon comts' final resolution of
City of Lebanon v. lvlilburn, CA Al60515, which is currently pending before the Oregon Court
of Appeals. See lvlilburn, 2016 WL 4163551 at *2. A joint status report is due six months after
the date of this opinion or thirty days after a decision is issued in the state-cou1t case, whichever
IT IS SO ORDERED.
United States District Judge
Page 9- OPINION AND ORDER
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