IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

SILVIA LEE MILBURN, 

Plaintiff, 

v. 

CITY OF LEBANON, a municipality, 

Defendant. 

Geordie L. Duckier 

Geordie Duckier, LLC 

9397 S.W. Locust St. 

Tigard, OR 97223 

Attorney for plaintiff 

Gerald L. Warren 

EUGENE DIVISION 

Law Office of Gerald L. Warren and Associates 

90 I Capitol St. N .E. 

Salem, OR 97301 

Attorney for defendant 

Page I - OPINION AND ORDER 

Case No. 6:16-cv-00435 

OPINION AND ORDER 

Case 6:16-cv-00435-AA Document 15 Filed 08/03/16 Page 1 of 9
AIKEN, Judge: 

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

defendant City of Lebanon. Plaintiff was acquitted in Linn County Circuit Court of animal abuse 

following a conviction for the same crime in Lebanon Municipal Court. 1 After plaintiffs initial 

conviction, defendant allowed the dog to be adopted by a new owner. When plaintiff was acquitted 

and demanded defendant return the dog, defendant refused. Plaintiff alleges defendant's failure to 

return the dog violates her constitutional right to due process. Defendant moved for dismissal for 

failure to state a claim. For the reasons set foith below, defendant's motion is granted and plaintiff 

is given leave to amend her complaint. Plaintiff is further advised that principles of abstention 

prevent this court from providing her the remedies she seeks while state comt proceedings are 

unresolved. 

FACTS 

On September 13, 2013, a Lebanon police officer removed plaintiff's dog, "Sam," from her 

possession. Comp!. ii 7 (doc. 1 ). Plaintiff was later convicted of misdemeanor animal abuse in 

Municipal Co mt for the City of Lebanon on April 9, 2014 . Id. ii 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; the dog was adopted on April 27, 2014. Id. at 3. 

On June 18, 2015, plaintiff was acquitted of the animal abuse charge in a second trial in Linn 

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

defendant's, an appeal as ofright to a county circuit comt. While the appeal does not vacate the 

municipal conviction, the county court trial is a de nova proceeding. See Or. Rev. Stat. § 

221.359; City of Eugene v. Smyth, 243 P.3d 854, 857 (Or. Ct. App. 2010). 

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Case 6:16-cv-00435-AA Document 15 Filed 08/03/16 Page 2 of 9
County Circuit Court. Comp!. ii 12. On September 14, 2015, the Linn County Circuit Comtordered 

defendant to return the dog to plaintiff. Id. ii 14. The court denied defendant's motion for 

reconsideration and request for a discretionary stay. Id. iiii 15-16. On plaintiffs motion, the court 

again ordered defendant to return the dog in a peremptory writ of mandamus on April 14, 2016. 

Deel. Gerald Warren Ex. I 9-10 (doc. 9-1). An appeal of the September 14, 2015 order is pending 

in the Oregon Co mt of Appeals. Id. at 11. Plaintiff does not have custody of the dog. 

Plaintiff alleges defendant's actions violate her constitutional rights to procedural due 

process. Comp!. ii 20. Plaintiff seeks monetmy damages, court costs, and an injunction ordering the 

return of her dog. Id. at 7. Defendant moved to dismiss for failure to state a claim. 

ANALYSIS 

I. Abstention 

A. Standards 

Federal courts have an obligation to exercise the jurisdiction afforded to them, and the simple 

pendency of a parallel state court proceeding should not prevent the federal court from rendering a 

decision. New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491U.S.350, 373 (1989). 

However, a federal court may decline to exercise jurisdiction when there are related, pending state 

civil proceedings that "implicate a State's interest in enforcing the orders and judgments of its 

comts." Sprint Commc'ns, Inc. v. Jacobs, 134 S.Ct. 584, 588 (2013) (citing Pennzoil Co. v. Texaco 

Inc., 481 U.S. 1 (1987)). When impo1tant state interests are at stake in an ongoing state proceeding, 

"a federal comt should abstain unless state law clearly bars the interposition of the constitutional 

claims." Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass'n., 457 U.S. 423, 432 (1982) 

(internal quotation marks omitted). The Ninth Circuit, applying the three "Middlesex factors," finds 

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abstention to be appropriate when "(!) there is an ongoing state judicial proceeding, (2) those 

proceedings implicate state interests, and (3) there is an adequate opportunity in the state proceedings 

to raise constitutional challenges." ReadyLinkHealthcare, Inc. v. State Comp. Ins. Fund, 754 F.3d 

754, 758 (9th Cir. 2014) (quoting lv!iddlesex, 457 U.S. at 432) (internal quotation marks omitted). 

The Ninth Circuit considers an additional "implied fourth requirement[:] that the federal co mt action 

would enjoin the [state] proceeding, or have the practical effect of doing so." Potrero Hills Landfill, 

Inc. v. Cnty. a/Solano, 657 F.3d 876, 882 (9th Cir. 2011) (internal quotations marks omitted). State 

courts are competent to adjudicate federal constitutional claims, and "the only relevant question ... 

is whether the state proceedings afford an adequate opp01tunity to raise the constitutional 

challenge[.]" Gilbertson v. Albright, 381F.3d965, 972 (9th Cir. 2004). 

Comity is the vital consideration informing the abstention doctrine. Id. at 975. Therefore, 

federal coutts should abstain from actions that "implicate any important state interests vital to the 

operation of state government." Potrero Hills, 657 F.3d at 883. Abstention is called for when there 

are pending state criminal proceedings or "when the state seeks to enforce a law of significant state 

importance through judicial or quasi-judicial action[.]" Id. at 884. 

B. Discussion 

Based on defendant's opening brief to the Oregon Coutt of Appeals (doc. 9-4), the question 

before the coutt is whether the municipal court had authority to order the dog to be forfeited after 

plaintiff filed a notice of appeal. Defendant argues that the municipal coutt could lawfully sentence 

plaintiff, to include ordering forfeiture of the dog, regardless of plaintiff's notice of appeal. Oregon 

coutts are coutts of general jurisdiction and can consider plaintiff's statutory as well as federal 

constitutional arguments. See, e.g., Stogsdill v. Bd. of Parole and Post-Prison Supervision, 154 P.3d 

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91, 93 (Or. 2007). 

The Middlesex factors clearly counsel in favor of abstention. First, a challenge to the 

September 2015 order is pending before the Oregon Court of Appeals. Given that the instant civil 

rights claim was filed in March 2016, the first factor is satisfied. The third factor also weighs in 

favor of abstention, as plaintiff has given this Court no reason to believe she is precluded from 

raising federal constitutional arguments in the Oregon Comt of Appeals. 

The second factor, whether the pending state action implicates important state interests, also 

supports abstaining. Jurisdictional and statutoty interpretation questions, as well as questions about 

the constitutionality of state laws, are intricately related to "a State's interest in enforcing the orders 

and judgments of its cou1ts." Sprint Commc 'ns, Inc., 134 S.Ct. at 588. Allowing the Oregon courts 

to reach a final judgment on the dispute between these patties will best promote comity. 

C. Conclusion 

The doctrine of abstention prevents this Co mt from providing the relief plaintiff seeks while 

state proceedings are pending. However, this finding does not completely resolve the motion to 

dismiss as "an abstention-based stay order, rather than a dismissal, is appropriate when damages are 

at issue." Gilbertson, 381 F.3d at 975. The analysis thus turns to the disposition of defendant's 

motion to dismiss. 

II. Motion to Dismiss for Failure to State a Claim 

A. 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 nonconclusoty 'factual content,' and reasonable inferences from that content, must be plausibly 

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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)). Facial plausibility requires 

a plaintiff to plead facts that "allow[) 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 theory." Zixiang Liv. Keny, 710 F.3d 995, 999 (9th 

Cir. 2013). 

B. Discussion 

Plaintiff contends defendant's refusal to return her dog deprives her of property without due 

process of law, in violation of the Fourteenth Amendment. Comp!. iJ 20. Specifically, plaintiff 

alleges a violation of her procedural due process rights, as well as "rights of possession of personal 

prope1iy in violation of Amendments IV and V, as applied to defendant City's actions under color 

of state law through Amendment XIV of the United States Constitution." Id. il 21. Plaintiff also 

alleges the refusal to return the dog is attributable to a "policy statement, ordinance, regulation, or 

decision officially adopted and promulgated by [defendant's] officers, and/or is the result of 

defendant's custom." id. il 24. Likewise, plaintiff alleges the deprivation of her rights "was the 

result of an official policy or custom made by defendant lawmakers or by those whose edicts or acts 

may fairly be said to represent defendant's official policy." Id. iJ 25. Defendant responds by citing 

Parral v. Taylor, 451 U.S. 527 (1981), and Hudson v. Palmer, 468 U.S. 517 (1984), for the 

proposition that "even unauthorized deprivations of property by government are not violations of due 

process so long as post[-]deprivation remedies are available including a lawsuit for damages." Mot. 

to Dismiss. at 3-4 (doc. 8). 

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1. Procedural Due Process 

42 U.S.C. § 1983 provides a remedy to persons whose constitutional rights, including 

propetty and due process, are violated by the policy or custom of a municipality. Monell v. Dep 't 

a/Soc. Servs. of the City ofN 1~, 436 U.S. 658, 694 (1978). For section 1983 purposes, municipal 

policy includes a policy promulgated by a local government's legislative body, a choice among 

alternatives by a municipal official with final decision-making authority, or the ratification of a 

decision of a subordinate by a municipal official with final decision-making authority. City a/St. 

Louis v. Praprotnik, 485 U.S. 112, 127 (1988). Municipal customs include permanent and wellsettled municipal practices, but not random or isolated instances of misconduct. Navarro v. Block, 

72 F.3d 712, 714 (9th Cir. 1996). A section 1983 claim against a municipal defendant must identify 

"a direct causal link between a municipal policy or custom and the alleged constitutional 

deprivation." City a/Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989). 

The Supreme Co mt provides a two-step test to identify violations of procedural due process. 

Logan v. Zimmerman Brush Co., 455 U.S. 422, 428-29 (1982). First, a plaintiff must allege an injmy 

to a protected pro petty interest, the hallmark of which is "an individual entitlement grounded in state 

law which cannot be removed except 'for cause."' Id. at 430 (quoting Memphis Light, Gas & Water 

Div. v. Craft, 436 U.S. 1, 11-12 (1978)). Second, "the State may not finally destroy a propetty 

interest without first giving the putative owner an oppotiunity to present his claim of entitlement." 

Id. at 434. A plaintiff may show inadequate process in two ways: by alleging an official procedure 

provided an inadequate oppotiunity to present a claim of entitlement, Mathews v. Eldridge, 424 U.S. 

319, 345 (1976), or by alleging a state official violated the protected propetiy interest with a random 

and unauthorized action for which the state provides no adequate remedy, Zimmerman v. City of 

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Oakland, 255 F.3d 734, 738-39 (9th Cir. 2001) (citing Zinermon v. Burch, 494 U.S. 113 (1990)). 

Plaintiffs dog is clearly a property interest with an anchor in state law. See Or. Rev. Stat. 

§ 609.020 (declaring dogs to be personal property). Turning to Logan's second step, plaintiffs 

complaint characterizes the "defendant City's refusal to comply with a state court's valid order" as 

the alleged violation. Comp!. 'lf 20. The complaint does not identify a procedure to be challenged, 

rendering a Mathews analysis impossible. Neither does plaintiff allege state remedies to be 

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

claim. Because plaintiff's procedural due process claim fails to challenge a particular procedure or 

allege a state remedy to be inadequate, the claim must be dismissed. 2 

2. Other Possible Claims 

Section 1983 authorizes suits "for state officials' violation of [many of the specific 

protections defined in the Bill ofRights ]"as well as "certain arbitrary, wrongful government actions 

regardless of the fairness of the procedures used to implement them." Zinermon, 494 U.S. at 125 

(internal quotations omitted). Plaintiff generally alleges defendant's actions interfere with her Fomih 

and Fifth Amendment rights. Comp!. 'lf 21. These passing references to constitutional rights are of 

the "unadorned, the-defendant-unlawfully-harmed-me" variety foreclosed by modern pleading 

standards. Iqbal, 556 U.S. at 678. 

2

In her Response to the Motion to Dismiss, plaintiff argues that exhaustion is not 

necessaty to bring a federal civil rights claim because "substantive due process is violated at the 

moment harm occurs." Doc. 10 at 3 (emphasis added). This argument is unavailing for two 

reasons. First, the issue is not whether state remedies were exhausted, but whether plaintiff 

alleged those remedies are inadequate. Second, plaintiffs complaint does not allege a 

substantive due process violation. Should plaintiff elect to amend her complaint, any claims of 

substantive due process must be clearly distinguished from any claims of procedural due process. 

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3. Leave to Amend 

When a motion to dismiss is granted, this Court "should grant leave to amend even if no 

request to amend the pleading was made, unless it determines that the pleading could not possibly 

be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir 2000) (en 

bane) (internal quotation marks and citations omitted). Because I cannot conclude no other facts 

would cure plaintiffs claim, she may amend her complaint. Although plaintiff should timely file 

any amended complaint, it likely will be necessaty to stay fmiher proceedings in this action pending 

the outcome of the ongoing state proceeding. 

CONCLUSION 

Defendant's motion to dismiss (doc. 8) is GRANTED. Plaintiff is granted leave to amend 

her complaint to comply with Fed. Rule ofCiv. Proc. S(a). 

IT IS SO ORDeRED. 

Dated thisf day o~016. 

~ 

AnnAiken 

United States District Judge 

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