IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

EUGENE DIVISION 

TODD and JESSICA BLISCHKE; 

WARREN and CHERYL HOLT; 

DERRICK and MICHELLE JOHNSON; 

THOMAS and MARIA LAMPROS; and 

DANNIE and LANETTE RASMUSSEN, 

Plaintiffs, 

v. 

TUMALO IRRIGATION DISTRICT and 

DESCHUTES COUNTY, 

Defendants. 

Thomas A. Ped 

Todd W. Blischke 

Williams, Kastner & Gibbs P.L.L.C. 

1001 SW Fifth Avenue, 16th Floor 

Portland, OR 97204 

Attorneys for Plaintiffs 

PAGE 1 - OPINION AND ORDER 

Case No. 6:15-cv-01555-AA 

OPINION AND ORDER 

Case 6:15-cv-01555-AA Document 40 Filed 06/27/16 Page 1 of 8
Luke W. Reese 

Garrett Hemann Robertson P.C. 

1011 Commercial Street NE 

Salem, OR 97301 

John E. Laherty 

Deschutes County Assistant Legal Counsel 

1300 NW Wall Street, Suite 205 

Bend, OR 97703 

Attorneys for Defendants 

AIKEN, Judge: 

Plaintiffs Todd and Jessica Blischke, Warren and Cheryl Holt, Derrick and Michelle Johnson, 

Thomas and Maria Lampros, and Dannie and Lanette Rasmussen all purchased parcels of vacant real 

property ("the lots") from defendant Tumalo Irrigation District ("TID"). The lots are located in 

Bend, Oregon, along Bill Martin Road ("the Road"), an approximately two-mile-long compacted dirt 

road with a loose gravel overlay. First Am. Compl. if 11. The Road has fallen into disrepair; it 

"contains large potholes, severe wash-boarding, braking bumps, and the gravel is no longer 

uniformly spread across the Road." Id. if 26. Plaintiffs allege they demanded TID perform 

maintenance on the Road. Id. if 23. They further allege TID initially claimed defendant Deschutes 

County ("the County") was responsible for the maintenance, and that after the County disclaimed 

responsibility, TID informed plaintiffs they would have to maintain it themselves. Id. Plaintiffs 

allege TID knew all along purchasers of the lots would be responsible for road maintenance, but 

deliberately concealed this fact because it would have lowered the sale value of the lots. Id. iii! 46-

49. 

In this action, plaintiffs assert state-law breach of contract and fraudulent concealment claims 

against TID; state-law negligence claims against both defendants; and federal due process claims 

PAGE 2 - OPINION AND ORDER 

Case 6:15-cv-01555-AA Document 40 Filed 06/27/16 Page 2 of 8
pursuant to 42 U.S.C. § 1983 against both defendants. Defendants moved to dismiss the federal 

claims only. For the reasons set forth below, defendants' motions are granted and this case is 

dismissed and remanded to state court. 

STANDARDS 

Under Federal Rule of Civil Procedure 12(b)(6), a complaint is construed in favor of the 

plaintiff, and its factual allegations are talcen as true. Daniels-Hall v. Nat'! Educ. Ass 'n, 629 F.3d 

992, 998 (9th Cir. 2010). "[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. US 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. "[O]nce a claim has been 

stated adequately, it may be supported by showing any set of facts consistent with the allegations in 

the complaint." Bell At!. Corp. v. Twombly, 550 U.S. 544, 563 (2007). 

DISCUSSION 

Plaintiffs contend defendants' failure to maintain the Road deprives them of property without 

due process of law, in violation of the Fourteenth Amendment. 1 First Am. Compl. irir 59, 69. 

Plaintiffs assert violations of both substantive and procedural due process rights. For either type of 

1 In their briefs in opposition to the motions to dismiss, plaintiffs also assert defendants' 

failure to maintain the road violates the Takings Clause. The First Amended Complaint 

mentions neither the Takings Clause nor the Fifth Amendment and could not have put defendants 

on notice to defend against such a claim. See Twombly, 550 U.S. at 574 (explaining that Federal 

Rule of Civil Procedure 8 's pleading requirements are designed to ensure defendants are "on 

notice as to the nature of the claim[s] against [the]m and the relief sought.") If plaintiffs wish to 

assert a takings claim, they first must seek leave to amend the Complaint. 

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Case 6:15-cv-01555-AA Document 40 Filed 06/27/16 Page 3 of 8
due process claim, a plaintiff must make a "threshold showing" of a "constitutionally protected 

property interest." Gerhart v. Lake Cnty., Mont., 637 F.3d 1013, 1019 (9th Cir. 2011). To have a 

protected property interest in a government benefit, "a person clearly must have more than an 

abstract need or desire for [the benefit]. He must have more than a unilateral expectation of it. He 

must, instead, have a legitimate claim of entitlement to it." Bd. of Regents of State Calls. v. Roth, 

408 U.S. 564, 577 (1972). A property interest must "stem from an independent source such as state 

law-rules or understandings that secure certain benefits and that support claims of entitlement to 

those benefits." Id. "A person's belief of entitlement to a government benefit, no matter how 

sincerely or reasonably held, does not create a property right if that belief is not mutually held by the 

government." Gerhart, 637 F.3d at 1020. 

Plaintiffs resist framing their due process claims in terms of denial of a government benefit. 

Instead, they assert they have a property interest in access to the lots under Oregon common law. 

See, e.g., Sweet et al. v. Irrigation Canal Co., 254 P.2d 700, 712 (Or. 1953) ("It is established law 

in this state that an abutting owner is entitled to the use of the highway in front of his premises to 

its full width ... and this right is as much property as the soil within the boundaries of his lot[.]"). 

But plaintiffs have not pointed to the necessary governmental deprivation of this right of access. 

Defendants have not physically blocked plaintiffs' access to their property or refused to allow 

plaintiffs to use the Road. Nor have plaintiffs alleged some action by defendants caused the 

degradation of the Road. Although the deterioration of the Road undoubtably affects plaintiffs' 

access to their property, defendants' failure to prevent that deterioration does not "deprive" plaintiffs 

of a property right within the meaning of the Due Process Clause. See Collins v. City of Harker 

Heights, Tex., 503 U.S. 115, 126 (1992) ("[Because] the [Due Process] Clause is phrased as a 

PAGE 4 - OPINION AND ORDER 

Case 6:15-cv-01555-AA Document 40 Filed 06/27/16 Page 4 of 8
limitation on the State's power to act, .... its language cannot fairly be extended to impose an 

affirmative obligation on the State to ensure that [life, liberty, and property] interests do not come 

to harm through other means." (quoting DeShaney v. Winnebago Cnty. Dep 't of Soc. Servs., 489 U.S. 

189, 195 (1989)). 

Thus, plaintiffs' due process claim must be framed as a government benefit claim: the denial 

of road maintenance services. Plaintiffs have failed to state a claim for violation of their due process 

rights because they have no legitimate expectation of entitlement to such services under state law. 

Plaintiffs cite a number of Oregon cases stating that a public entity has a duty to keep premises held 

open to the public in a safe and reasonably maintained condition. E.g. Platt v. City a/Newberg, 205 

P. 296, 297 (1922). But as Platt and other cases make clear, that duty arises under tort law. 

Existence of a tort-law duty of care is not evidence of a constitutionally protected property right. See 

Daniels v. Williams, 474 U.S. 327, 335 (1986) (rejecting the argument that "all common-law duties 

owed by government actors were somehow constitutionalized by the Fourteenth Amendment"). 

Plaintiffs next attempt to locate their expectation of road maintenance services in provisions 

of the Deschutes County Code. Oregon law broadly assigns road maintenance responsibilities to 

counties. Or. Rev. Stat.§§ 368.001, 368.016. Chapter 92 of Title IO of the Oregon Revised Statutes 

addresses approval of new subdivisions and partitions, conditioning approval of a plat upon the 

dedication of streets and roads within the new development for public use. Id. § 92.090(3)(a). 

Pursuant to Chapter 92 and other provisions of Oregon law, the Deschutes County Code "sets forth 

the minimum standards governing approval of land development." Deschutes Cnty. Code § 

17.04.020(A). Among the listed purposes of those standards are promotion of "public health, safety 

and general welfare," encouragement of "well planned ... development to the end that good livable 

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Case 6:15-cv-01555-AA Document 40 Filed 06/27/16 Page 5 of 8
neighborhoods with all needed amenities ... may be created," and protection of "the interest of the 

public, the applicant, and the future lot owner." Id § 17.04.020(A)(l) & (3). 

It is possible plaintiffs could assert a legitimate claim of entitlement to road maintenance 

services pursuant to these broad provisions. See Ressler v. Pierce, 692 F.2d 1212, 1216 (9th Cir. 

1982) (statutory statements of purpose may give rise to protected property rights to government 

benefits). But here, as plaintiffs concede, the Deschutes County Code expressly relieves the County 

of any maintenance responsibility for local access roads: 

Any public road created in conjunction with the dedication of a public road right of 

way under [section 17.52] shall be designated a Local Access Road ... which shall 

not be maintained by the County, unless and until that road right of way is established 

as a County road ... by order or resolution of the County governing body[.] 

Deschutes Cnty. Code§ 17.52.100. To the extent sections 17.04.020 and 17.52.100 conflict, the 

latter provision controls because it is more specific.2 See Kambury v. DaimlerChrysler Corp., 50 

P.3d 1163, 1166 (Or. 2002) ("[W]e adhere to the rule of statutory construction that a specific statute 

controls over a general statute."). Plaintiffs appear to contend TID misled them into believing the 

Road was a County road rather than a local access road. See, e.g., Pl.' s Opp. Deschutes Cnty. Mot. 

Dismiss 10 n.5 (doc. 37). However, they do not allege the Road was established as a County road 

by an order or resolution of the County governing body, as required by section 17.52.100. 

Accordingly, any belief the County or TID was under a statutory obligation to maintain the road was 

a subjective expectancy not protected by the Due Process Clause. See Sayers v. Wash. Cnty., 2008 

WL 4449431, *3 (E.D. Mo. Sept. 26, 2008) (dismissing federal claims in a case involving very 

2 Plaintiffs appear to concede as much in their brief when they argue the entire framework 

of applicable Deschutes County Code provisions violates the Takings Clause. As explained 

above in footnote 1, plaintiffs have not pleaded a takings claim and this Court will not address 

such a claim unless and until plaintiffs obtain leave to amend the Complaint. 

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Case 6:15-cv-01555-AA Document 40 Filed 06/27/16 Page 6 of 8
similar facts because plaintiffs had articulated, "at most," a subjective expectancy the road abutting 

their property would be maintained). Plaintiffs' due process claims must be dismissed. 

SUPPLEMENTAL JURISDICTION OVER STATE LAW CLAIMS 

I decline to exercise supplemental jurisdiction over plaintiffs' remaining state law claims. 

Title 28 U.S.C. § 1367 provides the basis for supplemental jurisdiction: 

Except as provided in subsections (b) and ( c) or as expressly provided otherwise by 

Federal statute, in any civil action of which the district courts have original 

jurisdiction, the district courts shall have supplemental jurisdiction over all other 

claims that are so related to claims in the action within such original jurisdiction that 

they form part of the same case or controversy under Article III of the United States 

Constitution. 

A district court has discretion to "decline to exercise" supplemental jurisdiction in various 

circumstances including when "the district court has dismissed all claims over which it has original 

jurisdiction." 28 U.S.C. § 1367(c)(3). 

That is exactly the situation at bar. Here, supplemental jurisdiction over the state law claims 

was based on federal question jurisdiction over the federal due process claims. The Court dismisses 

the federal claims and declines to exercise jurisdiction over the remaining state law claims. 

Therefore, this complaint is dismissed in its entirety. 

CONCLUSION 

Defendants' motions to dismiss plaintiffs' federal claim (docs. 28 and 30) are GRANTED. 

This case is DISMISSED and REMANDED to state court for further action. The County's request 

PAGE 7 - OPINION AND ORDER 

Case 6:15-cv-01555-AA Document 40 Filed 06/27/16 Page 7 of 8
for attorney's fees and costs is DENIED.3 TID's request for oral argument is DENIED as 

unnecessary. 

IT IS SO ORDERED. 

Dated this_ day ofJune 201L ~;,._} 

Ann Aiken 

United States District Judge 

3 A prevailing defendant may obtain attorney's fees under 42 U.S.C. § 1988 if "the 

plaintiff's action was unreasonable, frivolous, meritless, or vexatious." Galen v. Cnty. of Los 

Angeles, 477 F.3d 652, 666 (9th Cir. 2007) (quotation marks omitted). The County makes a 

single-sentence request for attorney's fees and costs without argument or citation to authority. I 

decline to award the County fees in the absence of any explanation why plaintiffs' due process 

claims are so "wholly without merit" as to meet the demanding section 1988 standard for 

prevailing defendants. Gibson v. Office of Atty. Gen., State of Cal., 561F.3d920, 929 (9th Cir. 

2009) (citation omitted). 

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