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Milburn v. City of Lebanon

United States District Court, D. Oregon, Eugene Division

May 16, 2017

SILVIA LEE MILBURN, Plaintiff,
v.
CITY OF LEBANON, a municipality, Defendant.

          OPINION AND ORDER

          Ann Aiken, United States District Judge

         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 plaintiffs 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.

         BACKGROUND

         In September 2013, a Lebanon police officer removed plaintiffs dog, Sam, from plaintiffs possession. Second Am. Compl. ¶ 7 (doc. 21). Plaintiff was later convicted of animal abuse in Lebanon Municipal Court. Id. ¶ 12. As part of plaintiff s sentence, the municipal court judge ordered that the dog would be released to Linn County Animal Control for adoption. Warren Decl. 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. Compl. ¶¶ 19-20; Warren Decl. Ex. 5 at 31.

         Meanwhile, plaintiff appealed her conviction to Linn County Circuit Court, where a jury acquitted her on all charges.[1] Warren Decl. 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 court. Warren Decl. Ex.4.

         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. Compl. ¶¶ 43-44. Defendant now moves to dismiss the Second Amended Complaint for failure to state a claim.

         STANDARDS

         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 court 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 (1) lacks a cognizable legal theory or (2) fails to allege sufficient facts to support a cognizable legal theory." ZixiangLi v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013).

         DISCUSSION

         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, § 1. "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. Piphits, 435 U.S. 247, 259 (1978). "A procedural due process claim has two distinct elements: (1) a deprivation of a constitutionally protected liberty or property interest, and (2) a denial of adequate procedural protections." Brewster v. Bd. of Educ. of Lymvood Unified Sch. Dist, 149 F.3d 971, 982 (9th Cir. 1998).

         It is undisputed that plaintiff has a property 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 property be given an opportunity to be heard 'at a meaningful time and in a meaningful manner.5" Brewster, 149 F.3d at 984 (quoting Armsfrong v. Manzo, 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 process. 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. ยง 167.347 (providing for the civil forfeiture of ...


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