IN THE UNITED STATES DISTRICT COURT 


FOR THE DISTRICT OF OREGON 


EUGENE DIVISION 


SIL VIA LEE MILBURN, Case No. 6:16-cv-00435-AA 

OPINION AND ORDER 

Plaintiff, 

v. 

CITY OF LEBANON, a municipality, 

Defendant. 

AIKEN, Judge: 

Plaintiff Silvia Lee Milburn brings this action pursuant to 42 U.S.C. §§ 1981 and 1983 

against defendant City of Lebanon. After plaintiff was convicted of animal abuse in Lebanon 

Municipal Court, defendant forfeited plaintiffs dog to Linn County Animal Control, which utilized 

Safe Haven Humane Society to find a new home for the dog. A new owner subsequently adopted 

the dog. Plaintiff appealed her conviction and a Linn County Circuit Court jury acquitted her of 

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Case 6:16-cv-00435-AA Document 20 Filed 11/21/16 Page 1 of 10
animal abuse. 1 After the acquittal, Linn County Circuit Court ordered defendant to return plaintiffs 

dog, but defendant failed to comply with the order. 

Plaintiff then filed this action, contending defendant's failure to return the dog violated her 

constitutional right to due process. Defendant moved for dismissal for failure to state a claim, and 

this Court granted that motion while giving leave for plaintiff to amend her complaint. Plaintiff 

amended her complaint, and defendant moved for dismissal for failure to state a claim and lack of 

subject matter jurisdiction. For the reasons set forth below, defendant's second motion to dismiss 

is granted. Plaintiffs claim for iajunctive relief is dismissed with prejudice, but plaintiff is granted 

leave to amend her complaint with regard to her claim for actual and compensato1y damages. 2 

BACKGROUND 

On September 13, 2013, a Lebanon police officer removed plaintiffs dog from her 

possession. Am. Comp!. if 7. Plaintiff was later convicted of misdemeanor animal abuse in 

Municipal Court for the City of Lebanon on April 9, 2014. Id. if 9. Plaintiff immediately filed a 

notice of appeal to Linn County Circuit Court and moved to stay the sentence. Id. The municipal 

court declined to stay the sentence. Mot. to Dismiss at 2-3 (doc. 8). While the appeal was pending, 

defendant gave the dog to an animal shelter, and the dog was adopted by a new owner on April 27, 

'Oregon law provides criminal defendants in some municipal courts, including 

defendant's, an appeal as ofright to a county circuit comt. Or. Rev. Stat.§ 221.359. The county 

comt trial is a de nova proceeding. City ofEugene v. Smyth, 243 P.3d 854, 857 (Or. Ct. App. 

2010). 

2

As previously explained, even ifplaintiffs procedural due process claim were 

adequately pleaded, principles of abstention would prevent me from providing plaintiff the 

remedies she seeks while state court proceedings are umesolved. See Milburn v. City ofLebanon, 

2016 WL 4163551, *2 (D. Or. Jul. 3, 2016) ("The doctrine of abstention prevents this Comt from 

providing the relief plaintiff seeks while state proceedings are pending."). 

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Case 6:16-cv-00435-AA Document 20 Filed 11/21/16 Page 2 of 10
2014. Id. at 3. On June 18, 2015, plaintiff was acquitted ofthe animal abuse charge in a trial in Linn 

County Circuit Court. Am. Comp!. il 12. On September 14, 2015, the Linn County Circuit Court 

ordered defendant to return the dog to plaintiff. Id. il 17. An appeal ofthat order is pending in the 

Oregon Court ofAppeals. Deel. Gerald Warren Ex. 4. Currently, plaintiff does not have custody of 

the dog. 

Plaintiff filed this lawsuit alleging defendant's actions violated her constitutional rights to 

procedural due process. Am. Comp!. il 1. Defendant moved to dismiss for failure to state a claim. 

On August 3, 2016, this Comt granted defendant's motion to dismiss and gave plaintiff leave to 

amend her complaint. Plaintiff's amended complaint is now before the Court. Id. Plaintiff seeks 

monetmy damages, court costs, attorney's fees, and an injunction ordering the return ofher dog. Id. 

at 10 . Defendant again moves to dismiss for failure to state a claim for which relief may be granted. 

Defendant also asserts the Rooker-Feldman doctrine divests this Comt ofsubject matter jurisdiction 

over plaintiff's claims. 

ANALYSIS 

I. Motion to Dismiss for Failure to State a Claim 

Defendant argues plaintiff failed to adequately amend her complaint, and therefore failed to 

state a claim. Sec. Mot. to Dismiss at 2 (doc. 17). 

A. Standard 

When considering a motion to dismiss, a court construes a complaint in favor ofthe plaintiff 

and takes all factual allegations as true. "[F]or a complaint to survive a motion to dismiss, the nonconclusoty 'factual content,' and reasonable inferences from that content, must be plausibly 

suggestive ofa claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv., 572 F.3d 962, 969 

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Case 6:16-cv-00435-AA Document 20 Filed 11/21/16 Page 3 of 10
(9th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Facial plausibility requires 

plaintiff to plead "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 theo1y or (2) fails to 

allege sufficient facts to support a cognizable legal the01y." Zixiang Liv. Keny, 710 F.3d 995, 999 

(9th Cir. 2013). 

B. Discussion 

In her Amended Complaint, plaintiff contends defendant's refusal to return her dog pursuant 

to the state court order deprives her of property without due process of law, in violation of the 

Fourteenth Amendment. Am. Comp!. if 35. Specifically, plaintiff asserts a violationofherprocedural 

due process rights, as well as "rights ofpossession ofpersonal property in violation ofAmendments 

IV and V, as applied to defendant City's actions under color ofstate law through Amendment XIV 

ofthe United States Constitution, actions which are therefore as well a violation offederal statut01y 

provisions under 42 U.S.C. § 1983 et seq." Id In response, defendant argues plaintiff has failed to 

state a claim because the Amended Complaint neither "challenge[s] the procedure itself, nor ... 

claim[s] that the State failed to provide adequate procedures. It is an attempt to use the Federal 

District Co mt of Oregon as a Court of Appeals to an Oregon Co mt." Sec. Mot. to Dismiss at 3. 

While plaintiff alleges a state-law property interest in her dog, see Or. Rev. Stat. § 609.020 

(declaring dogs to be personal property), she fails to allege defendant deprived her of that interest 

without adequate process. This Court's August 3, 2016 Opinion and Order held "[t]he complaint 

does not identify a procedure to be challenged .... Neither does plaintiff allege state remedies to 

be inadequate. These two omissions in combination are fatal to plaintiffs procedural due process 

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Case 6:16-cv-00435-AA Document 20 Filed 11/21/16 Page 4 of 10
claim." Milburn v. City ofLebanon, 2016 WL 4163551, *3 (D. Or. Jul. 3, 2016).3 Those sentences 

were intended to refer to two differing avenues for procedural due process claims. In light of this 

language, I understand why it would be easy for plaintiff to conflate the two procedural due process 

tests at hand. Thus, I will clarify my reasoning below. 

As relevant here, procedural due process claims take differing forms. Generally, alleged 

violations require a Mathews analysis. Mathews v. Eldridge, 425 U.S. 319 (1976). A subset of the 

Mathews test, the Parratt/Hudson test applies only to alleged violations that occur as a result of 

random and unauthorized acts by government officials. Parral/ v. Taylor, 451 U.S. 527 (1981)4 

; 

Hudson v. Palmer, 468 U.S. 517 (1984). Under the general Mathews test, a plaintiff must allege the 

defendant failed to provide adequate process. Under the more specific Parratt/Hudson test, a 

plaintiff must allege she has inadequate postdeprivation remedies under state law. 

Here, plaintiff confuses the Mathews test with its subset, the Parratf/Hudson test. The 

Amended Complaint focuses on the alleged inadequacy of state-court mandamus procedures to 

enforce the circuit court's order, suggesting plaintiff locates her claim under Parratt!Hudson. Am. 

Comp!. if 40-42. But plaintiff bases her procedural due process claim on an official government 

policy, not a random or unauthorized act. She alleges her deprivation resulted from an official 

"policy statement, ordinance, regulation, or decision official adopted and promulgated by [the City's] 

3

This Westlaw citation date is incorrect. The Opinion and Order was signed in August, 

not July. 

4

Parratt was overruled in patt by Daniels v. Williams, 474 U.S. 327 (1986). While 

P arratt is not good law "to the extent that it states that mere lack of due care by a state official 

may deprive an individual oflife, Iibetty, or property under the Fourteenth Amendment," id. at 

330-31, it still provides the framework for the type of deprivation discussion here. See Edwards 

v. Staton, 2015 WL 350635, *4 (D. Or. 2015) (applying "the Parra/f-Hudson doctrine"). 

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Case 6:16-cv-00435-AA Document 20 Filed 11/21/16 Page 5 of 10
officers, and/or is the result of the defendant's custom." Am. Comp!. if 38. 

The Parratt/Hudson test does not apply here because the cases that created that test are 

distinguishable from the complaint at hand. Parratt, a 1981 Supreme Court case, involved a 

Nebraska prisoner whose hobby kit the prison lost. A prison official randomly and without 

authorization failed to follow protocol, resulting in deprivation of the prisoner's prope1ty. The 

prisoner sued the prison officials, saying their negligence caused the loss of his property. Parratt, 

451 U.S. at 529. Hudson, a 1984 Supreme Comt case, involved a prison official who intentionally 

destroyed a prisoner's wall posters and personal possessions. 468 U.S. at 520, 544. The prison 

official was not acting pursuant to any established state procedure. To the contrary, he pursued a 

random, unauthorized personal vendetta against the prisoner. Id. at 533. 

The root of a Parratt/Hudson analysis is whether the defendant could have anticipated the 

risk of the plaintiff's deprivation. Zinermon v. Burch, 494 U.S. 113, 133 (1990). For example, in 

Parratt, the state could not reasonably provide predeprivation process because deprivation resulted 

from an unplanned, random, and unintentional act. Parratt, 451 U.S. at 541. Simply, the defendant 

could not have anticipated the plaintiff's deprivation. Id.; Zinermon, 494 U.S. at 137 ("In Parratt, 

the very nature of the deprivation made predeprivation process impossible." (quotation marks 

omitted)). Additionally, in Hudson, while the official's actions were intentional, "the State still was 

not in a position to provide predeprivation process, since it could not anticipate or control such 

random and unauthorized intentional conduct." Zinermon, 494 U.S. at 137. 

However, here defendant was in a position to provide for predeprivation process. Plaintiff 

was deprived ofher prope1ty while her original conviction was under appeal. Defendant could have 

anticipated the risk of plaintiff's deprivation because if plaintiff were acquitted, defendant would 

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Case 6:16-cv-00435-AA Document 20 Filed 11/21/16 Page 6 of 10
need to return her property. The Parratt/Hudson test does not apply. 

Plaintiff's claim is also inadequately pleaded under Mathews. Under a general Mathews 

analysis, an adequately pleaded due process claim has to allege that at some point in the process the 

defendant did not follow procedures or that the defendant should have provided additional 

procedures as a safeguard. See Mathews, 424 U.S. at 347 (in "striking the appropriate due process 

balance" courts mst consider "the administrative burden and other societal costs" associated with 

providing additional procedural protections). Here plaintiff asserts the circuit court issued the order 

and that defendant is not complying. Am. Comp!. ii 29-30. That argument is an attack on the result 

ofthe procedure, not the process, or lack thereof, itself. Attacking the result instead of the process 

of a procedure does not state a procedural due process claim. See Ward v. Temple Univ., 2003 WL 

21281768, at *5 (E.D. Pa. Jan. 2, 2003) ("[I]n order to state a claim of a procedural due process 

violation, a plaintiff must attack the procedures used to reach the conclusion, not the result itself."). 

Since plaintiff fails to adequately plead a procedural due process claim, that claim is 

dismissed. To decide whether to dismiss with prejudice, this Court must determine whether the 

Rooker-Feldman doctrine applies. 

II. The Rooker-Feldman Doctrine 

Defendant argues the Rooker-Feldman doctrine deprives this Court of subject-matter 

jurisdiction because plaintiff is "attempting to prosecute de facto appeals of ... State Court 

decisions." Sec. Mot. to Dismiss at 5 (doc. 17). Plaintiff does not respond to this argument. 

A. Standard 

TheRooker-Feldman doctrine derives from two United States Supreme Court cases, decided 

sixty years apart. See Dist. ofColumbia Ct. ofAppeals v. Feldman, 460 U.S. 462, 482 n.16 (1983); 

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Case 6:16-cv-00435-AA Document 20 Filed 11/21/16 Page 7 of 10
Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923). It also originates from 28 U.S.C. § 1257, 

which sets forth the exclusive means by which state cou1i judgments are reviewable in federal court. 

The Rooker-Feldman doctrine "stands for the relatively straightforward principle that federal district 

comis do not have jurisdiction to hear de facto appeals from state court judgments." Carmona v. 

Carmona, 603 F.3d 1041, 1050 (9th Cir. 2010); see also Dubinka v. Judges ofSup.Ct., 23 F.3d 218, 

221 (9th Cir.1994) ("Federal district courts may exercise only original jurisdiction; they may not 

exercise appellate jurisdiction over state court decisions."). 

In Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284 (2005), the 

Supreme Co mi substantially limited the Rooker-Feldman doctrine. The Supreme Comi clarified that 

the Rooker-Feldman doctrine "is confined to cases ofthe kind from which the doctrine acquired its 

name: cases brought by state-court losers complaining ofinjuries caused by state-court judgments 

rendered before the district comi proceedings commence and inviting district comi review and 

rejection ofthose judgments." Id at 284. The Rooker-Feldman doctrine bars litigation ofa claim in 

federal district comi only when a federal plaintiff asse1is an allegedly erroneous decision by a state 

comi as a legal wrong, and seeks relief from a state court judgment based on that decision. Noel v. 

Hall, 341 F.3d 1148, 1164 (9th Cir. 2003). The doctrine also bars litigation of an issue that is 

"inextricably intertwined" with a "forbidden de facto appeal" from a state comi decision. Id. at 1158. 

An issue is inextricably intertwined with a forbidden de facto appeal ifthe relief requested in the 

federal action would, in effect, reverse or void the state comi decision. Fontana Empire Ctr., LLC 

v. City ofFontana, 307 F.3d 987, 992 (9th Cir. 2002) (quoting Charchenko v. City ofStillwater, 47 

F.3d 981, 983 (8th Cir. 1995)). 

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Case 6:16-cv-00435-AA Document 20 Filed 11/21/16 Page 8 of 10
B. Discussion 

This is one ofthe rare cases in which the Rooker-Feldman doctrine applies. This Court is 

careful not to sweep too broadly in its application. Plaintiff asserts forfeiture ofher prope1iy as her 

injury. In seeking the return ofher dog with this current lawsuit, plaintiff is effectively seeking relief 

from the state court judgment of denial ofher petitions for a peremptory writ ofmandamus. 

Plaintiff claims the circuit court wrongly denied her multiple petitions for a peremptory writ 

ofmandamus, making her a "state court loser." Am. Comp!. if 19, 23-24, 26, 28. In order to remedy 

her situation, plaintiff asks for injunctive relief in the form of a court order compelling immediate 

return of her dog, a remedy that would reject those state court judgments. Am. Comp!. I0. 

Effectively, she is attempting to appeal the serial denial of her mandamus relief. 

This Court understands that pets play a unique and valuable role in many individuals' lives, 

and is sympathetic to plaintiff's current situation. However, sympathy does not change the 

jurisdiction of this Court. Since plaintiff seeks a de facto appeal from a state court judgment, the 

Rooker-Feldman doctrine applies, barring jurisdiction over her injunctive relief claim. Therefore, 

plaintiff's prayer for injunctive relief is dismissed with prejudice. 

In addition to injunctive relief, plaintiff seeks monetmy damages ("actual and compensatory 

damages of$76,000.00 and statuto1y interest"). Am. Comp!. I 0. There is disagreement in the federal 

courts over the extent to which Rooker-Feldman applies to claims for monetmy damages when the 

state court denied iajunctive relief. Compare Sibley v. Lando, 437 F.3d 1067, 1070, n.3 (I Ith Cir. 

2005) with Mann v. Boatright, 477 F.3d 1140, 1147 (I 0th Cir. 2007). The Ninth Circuit has yet to 

weigh in on this issue. 

At this point, it is unnecessmy to decide which approach is correct. Even assuming RookerPage 9 - OPINION AND ORDER 

Case 6:16-cv-00435-AA Document 20 Filed 11/21/16 Page 9 of 10
Feldman can bar federal damages claims after a state couti denied injunctive relief, it does not bar 

monetaty damages here for two reasons. First, the money damages are not "inextricably intertwined" 

with the state couti' s denial of plaintiffs mandamus relief; whether plaintiffs procedural due 

process rights were violated by defendant's failure to follow the state court order and whether 

plaintiff was entitled to mandamus relief are two separate questions. Second, although it is possible 

the damages claim is "inextricably intetiwined" with the state court order to return the dog, plaintiff 

is not a state-comi loser with respect to that claim because she obtained a favorable result that is now 

pending on appeal. Rooker-Feldman does not divest this Court of jurisdiction over plaintiffs 

damages claim at this time. 

CONCLUSION 

Defendant's motion to dismiss is GRANTED. Plaintiffs prayer for injunctive relief is 

dismissed with prejudice. Plaintiffs prayer for actual and compensato1y damages is dismissed 

without prejudice. Plaintiff is granted leave to amend her complaint within 90 days. 

IT IS SO ORDERED. 

Dated this£ly ofNovember 2016. 

Ann Aiken 


United States District Judge 


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