United States District Court, D. Oregon, Eugene Division
OPINION AND ORDER
Aiken, United States District Judge
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
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.
plaintiff appealed her conviction to Linn County Circuit
Court, where a jury acquitted her on all
charges. 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.
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.
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.
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).
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
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.
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 ...