IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MARTIE DAVIDSON, 

Plaintiff, 

v. 

DESCHUTES COUNTY, JOHN AND 

CAREN BURTON, CHRIS KABER, 

and JENNIFER GASPARD, 

Defendants. 

Mikel R. Miller 

Law Office of Mikel R. Miller, P.C. 

26 N.W. Hawthorne Avenue 

Bend, Oregon 97703 

Attorney for Plaintiff 

Geordie Duckler 

The Animal Law Practice 

9397 S.W. Locust Street 

Tigard, Oregon 97223 

Case No. 6:15-cv-00052-TC 

ORDER 

Attorney for Defendants John and Caren Burton 

Page 1 - ORDER 
AIKEN, Chief Judge: 

Magistrate Judge Coffin filed his Findings and Recommendation 

on February 13, 2013. The matter is now before me pursuant to 28 

U.S.C. § 636(b) (1) (B) and Fed. R. Civ. P. 72 (b). When a party 

objects to any portion of a Magistrate's Findings and 

Recommendation, the district court must make a de novo 

determination of that portion of the Magistrate's report. 28 U.S.C. 

§ 636(b) (1) (B); McDonnell Douglas Corp. v. Commodore Bus. Mach., 

656 F.2d 1309, 1313 (9th Cir. 1981). 

Plaintiff brought this action asserting state law claims of 

malicious prosecution and defamation against defendants John and 

Caren Burton ("the Burtons") . Plaintiff also asserted various 

claims against defendants Deschutes County, Chris Kaber, and 

Jennifer Gaspard, including a claim for false arrest pursuant to 42 

U.S.C. § 1983. Compl. ~~ 37-72. On June 24, 2014, Magistrate Coffin 

dismissed plaintiff's defamation claim against the Burtons and 

granted summary judgment for the Burtons on plaintiff's malicious 

prosecution claim. (doc. 31 at 7, 12) (doc. 33, adopting Findings 

and Recommendation) . The court also dismissed all claims against 

the other defendants. (doc. 31 at 1). Plaintiff declined to amend 

the complaint. 

Plaintiff now objects to Magistrate Coffin's Findings and 

Recommendation awarding $4,185 in attorney's fees to the Burtons 

for time billed regarding plaintiff's malicious prosecution claim. 

Page 2 - ORDER 
Obj. to Findings and Recommendation 1. Because plaintiff asserted 

no federal claims against the Burtons, the Burtons can recover 

attorney's fees under 42 U.S.C. § 1988 only if they demonstrate 

plaintiff's federal false arrest claim and her state malicious 

prosecution claim share a common core of facts. See, e.g., Maher v. 

Gagne, 448 U.S. 122, 132 (1980) (awarding attorney's fees for a 

state law claim pendent to a substantial constitutional claim); 

Carreras v. City of Anaheim, 768 F.2d 1039, 1050 (9th Cir. 1985) 

(where a common nucleus of operative facts exists between a 

substantial federal claim and a pendent state claim, attorney's 

fees may be awarded pursuant to Section 1988). 

Plaintiff asserts Magistrate Coffin erred in holding a common 

core of facts exists between her false arrest and malicious 

prosecution claims. Obj . to Findings and Recommendation 2. In 

support of her malicious prosecution claim, plaintiff alleged the 

Burtons "pushed the Deschutes County District Attorney to charge 

someone" and "pushed for prosecution of [plaintiff] with no reason 

to believe she had done anything to deserve prosecution." Compl. 'J['J[ 

55, 57. In support of her false arrest claim, plaintiff alleged 

defendants Kaber and Gaspard "refused to investigate whether the 

facts admitted to by [p]laintiff could have caused the injuries 

they sought to blame on [p]laintiff" and were "more interested in 

pacifying the Burton[s than] they were interested in pursuing the 

truth." Id. at 'J[ 63. The complaint confirms Magistrate Coffin's 

Page 3 - ORDER 
conclusion: plaintiff's claims for false arrest and malicious 

prosecution arise out of a common core of facts because both claims 

involve facts leading up to and motivating the prosecution of 

plaintiff. 

Plaintiff further objects to Magistrate Coffin's award 

because, though plaintiff "could have amended her claim," she was 

unable to do so due to "the emotional damage inflicted on 

[p] laintiff, and her own personality, [which] prevented her from 

being able to see the matter through to the end." Obj. to Findings 

and Recommendation 2. Plaintiff's subjective motivation for 

deciding not to amend her defamation claim is irrelevant to 

determining whether the Burtons are entitled to attorney's fees in 

connection with the malicious prosecution claim. 

I have given the file of this case a de novo review. I ADOPT 

Magistrate Coffin's Findings and Recommendation (doc. 41) allowing 

defendants John and Caren Burton's motion for attorney's fees (doc. 

38) in the amount of $4,185. Plaintiff's request of this Court to 

deny defendants' petition for attorney's fees is DENIED. 

IT IS SO ORDERED. 

Dated this December 2015. 

Ann Aiken 

United States District Judge 

Page 4 - ORDER