IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

EUGENE DIVISION 

SIL VIA LEE MILBURN, 

Plaintiff, 

v. 

CITY OF LEBANON, a municipality, 

Defendant. 

AIKEN, Judge: 

Case No. 6:16-cv-00435-AA 

OPINION AND ORDER 

Plaintiff 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 plaintiff's 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 denied. 

Page 1 - OPINION AND ORDER 
BACKGROUND 

In September 2013, a Lebanon police officer removed plaintiffs dog, Sam, from 

plaintiffs possession. Second Am. Comp!. if 7 (doc. 21). Plaintiff was later convicted of animal 

abuse in Lebanon Municipal Cami. Id. if 12. As part of plaintiffs sentence, the municipal court 

judge ordered that the dog would be released to Linn County Animal Control for adoption. 

Warren Deel. 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. Comp!. ilil 19-20; Warren Deel. Ex. 5 at 31. 

Meanwhile, plaintiff appealed her conviction to Linn County Circuit Comt, where a jury 

acquitted her on all charges. 1 Warren Deel. 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 comt. Warren Deel. 

Ex.4. 

Plaintiff 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. Comp!. ilil 43-44. 

Defendant now moves to dismiss the Second Amended Complaint for failure to state a claim. 

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

defendant's, a right to appeal to county circuit court. Or. Rev. Stat. § 221.359. The county court 

trial is a de novo proceeding. City of Eugene v. Smyth, 243 P.3d 854, 857 (Or. Ct. App. 2010). 

Page 2 - OPINION AND ORDER 
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 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 comi 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 (!) lacks a 

cognizable legal theory or (2) fails to allege sufficient facts to supp01i a cognizable legal theory." 

Zixiang Liv. Keny, 710 F.3d 995, 999 (9th Cir. 2013). 

DISCUSSION 

The Due 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, § I. "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. Piphus, 435 U.S. 247, 259 (1978). "A procedural due process claim has two 

distinct clements: (1) a deprivation of a constitutionally protected liberty or property interest, and 

(2) a denial of adequate procedural protections." Brewster v. Ed. of Educ. of Lynwood Unified 

Sch. Dist., 149 F.3d 971, 982 (9th Cir. 1998). 

It is undisputed that plaintiff has a prope1iy 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 prope1iy be given an 

Page 3 - OPINION AND ORDER 
opportunity to be heard 'at a meaningful time and in a meaningful manner."' Brewster, 149 F.3d 

at 984 (quoting Armstrong v. i\1anzo, 380 U.S. 545, 552 (1965)). To determine whether the 

process afforded was adequate, courts weigh three factors: 

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.2 

Oregon 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 impounded animals when ce1tain animal-abuse charges have are pending). 

2 Plaintiff also argues that the municipal court lacked jurisdiction to order her to forfeit 

the dog and that defendant had the "legal obligation" to return the dog to her as soon as she filed 

her appeal in circuit court. Id.~~ 13-14. The extent ofa court's jurisdiction is, of course, paitly 

determined by the limits of due process. See J. Mcintyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 

879-80 (2011). Because defendant's motion to dismiss can be resolved on other grounds and 

because plaintiff made this precise argument in the appeal pending before the Oregon Court of 

Appeals, however, I express no opinion on the viability of such a claim here. See Mi/bum, 2016 

WL 4163551 at *1-*2 (explaining that abstention is warranted in this case pursuant to the three 

factors set out in lvfiddlesex County Ethics Commission v. Garden State Bar Ass'n, 457 U.S. 423, 

432 (1982)). 

Page 4 - OPINION AND ORDER 
Defendant never initiated forfeiture proceedings with respect to the dog. 3 Instead, the forfeiture 

was imposed as patt of plaintiffs municipal-court sentence. It is undisputed that a forfeiture 

order may be a valid part of a criminal sentence in an animal abuse case. Or. Rev. Stat. § 

167.350(1); State v. Branstetter, 29 P.3d 1121, 1125 (Or. 2001). But it is also hornbook law that 

when a conviction is ove1turned on appeal, the entire sentence - including the forfeiture 

provision - must be vacated. See United States v. Rains, - F. App'x -, 2017 WL 24638, at 

*2 (9th Cir. Jan. 3, 2017) (unpublished). The parties have cited no case law, in this jurisdiction 

or elsewhere, addressing whether the due process clause permits the forfeiture portion of a 

sentence to be executed while an appeal is still pending and without providing additional 

forfeiture process. 

It may be that the due process clause required additional procedural safeguards here for 

two reasons. First, it is generally recognized that "pets have a value in excess of that which 

would ordinarily attach to property, because unlike other forms of personal property, they are not 

fungible." lvfcDouga/l v. Lamm, 48 A.3d 312, 324 (N.J. 2012). In the context of the lvfathews 

analysis, when the property interest at issue is a pet, the first factor weighs more heavily in favor 

of additional procedurnl safeguards. Second, plaintiff's appeal was atypical because it triggered 

a right to a de nova jury trial at which she enjoyed the presumption of innocence. Under 

A1athews, that fact increased the likelihood of an erroneous deprivation more than a typical 

appeal would have done, because acquittal at a new trial (where the government must prove the 

3 Although Or. Rev. Stat. § 131.582 expressly contemplates foreclosure proceedings 

initiative by a city attorney, Or. Rev. Stat.§ 167.347 does not reference municipalities. Plaintiff 

does not argue that defendant was bound to follow section 167.347, but contends that defendant 

could have implemented similar procedures pursuant to its authority under the City of Lebanon 

code. 

Page 5 - OPINION AND ORDER 
charges beyond a reasonable doubt) is more likely than reversal on appeal (where the reviewing 

comt typically applies a deferential standard of review.) 

I do not decide today that the due process clause required more process than was offered. 

Without any smt of evidentiary record, I am unable to consider countervailing interests that 

might weigh in favor of fewer procedural protections. I merely decide that, at this stage, I am 

unable to dismiss plaintiffs due process claim as a matter of law. Cf Tarhuni v. Holder, 8 F. 

Supp. 3d 1253, 1275-76 (D. Or. 2014) (holding that the plaintiff had adequately stated a due 

process claim with respect to his placement on a government "no fly" list but that "substantial 

development of the record" was required before that claim could be resolved on the merits). 

Defendant argues that plaintiffs procedural due process rights cannot have been violated 

because "the dog was forfeited pursuant to a criminal judgment after [plaintiff! received the 

pinnacle of all process - a jury trial." Def.'s Mot. Dismiss (Third) at 7 (doc. 23). More 

specifically, defendant contends that because plaintiff was convicted in municipal court using the 

beyond-a-reasonable-doubt burden of proof, she would not have benefited from additional 

procedures such as those in Or. Rev. Stat. § 167.347, which imposes a far lower probable-cause 

burden of proof. But the jury trial focused on plaintiffs guilt or innocence of the charges, not on 

what would happen to the dog before plaintiffs conviction was final. Moreover, defendant 

ignores a critical component of Or. Rev. Stat. § 167.347. Under that law, ifthe judge finds that 

there is probable cause to support forfeiture of an impounded animal, the defendant must be 

given the opportunity to post a bond "in an amount determined by the court to be sufficient to 

repay all reasonable costs incurred, and anticipated to be incurred, by the petitioner in caring for 

the animal from the date of the initial impoundment to the date of trial." Or. Rev. Stat. § 

167.347(3); see also State v. Branstetter, 45 P.3d 137, 141 (Or. Ct. App. 2002) (Armstrong, J., 

Page 6 - OPINION AND ORDER 
concurring) (stating that because the plaintiff had been afforded the oppmiunity to post a bond he 

had the financial means to pay, he was precluded from arguing that his due process rights were 

violated by the absence of a provision for getting the forfeited property back after he was 

acquitted of animal abuse). Plaintiff never was given the oppmiunity to pay the cost of the dog's 

care in order to preserve her ability to get the dog back if she were acquitted on appeal. A jury 

could conclude that defendant should have known that the failure to provide such an opportunity 

here increased the risk of erroneous deprivation to a constitutionally intolerable level. 

Defendant also contends that plaintiffs claim fails as a matter oflaw because she has not 

alleged facts from which a jury could infer that defendant was deliberately indifferent to 

plaintiffs constitutional rights. Def.'s Mot. Dismiss (Third) at 3. When a plaintiff alleges 

municipal liability under section 1983, the "first inquiry" is whether the constitutional violation 

arises from a "municipal custom or policy." Castro v. Cnty. of L.A., 833 F.3d 1060, 1075 (9th 

Cir. 2016) (en bane) (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1978)). Such a 

policy must be a "deliberate choice to follow a course of action ... made from among various 

alternatives by the official or officials responsible for establishing final policy with respect to the 

subject matter in question." Id. (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 483 

(1986) (plurality opinion)). In addition to identifying a "custom or policy, attributable to the 

municipality, that caused [the] injury," the plaintiff "must also demonstrate that the custom or 

policy was adhered to with deliberate indifference" to constitutional rights. Id. (quoting City of 

Canton, 489 U.S. at 392). 

The allegations in the complaint, if proven, could support findings of both official policy 

and deliberate indifference. Jn the procedural due process context, "deliberate indifference" can 

mean that the failure to provide additional procedural protections created an obvious risk of an 

Page 7 - OPINION AND ORDER 
erroneous deprivation of prope1ty. Here, even after plaintiff was convicted and sentenced in 

municipal court, she had a statutory right to a de nova jury trial at which she enjoyed the 

presumption of innocence. A factfinder could conclude that under those unique circumstances, 

defendant was deliberately indifferent to plaintiffs property rights when, pursuant to official 

policy, it executed the terms of plaintiff's municipal-court sentence before her circuit-court trial 

was complete. 

Finally, defendant avers that Or. Rev. Stat. § 133.633 provided plaintiff all the additional 

process she was due. That statute, which governs motions for return of property, provides that 

an individual "from whose person, property or premises things have been seized may move the 

appropriate court to return things seized to the person or premises to which they were seized." 

Or. Rev. Stat.§ 133.633(l)(a). Defendant faults plaintiff for failing to comply with the statute's 

time limit, which states that the motion is to be filed "[w]ithin 90 days after actual notice of any 

seizure." Id. § 133.633(1). Defendant further contends that, notwithstanding that failure, 

plaintiff "was still afforded" the "benefit" of the statute. Def.'s Mot. Dismiss (Third) at 6. 

Dismissing this lawsuit on those grounds would be positively Kafkaesque. First, plaintiff 

does not dispute that the police officer had the legal authority to seize her dog while the criminal 

charges were pending or that probable cause supported those charges. It is therefore nonsensical 

to suggest that she should have filed a motion for return of property within the ninety-day time 

limit here, because any such pretrial motion would have been denied. See EEOC v. Pan 

American World Airways, Inc., 897 F.2d 1499, 1509 n.12 (9th Cir. 1990) ("Whatever due 

process may require, it certainly does not require a futile act."). Second, defendant cannot 

seriously contend that plaintiff has received the "benefit" of section 133.633. The benefit of that 

law is the return of property. Plaintiff does not have her property back; she has a comt order 

Page 8 - OPINION AND ORDER 
with which defendant has not complied. Indeed, it may well be that defendant cannot comply; it 

appears defendant does not know who the dog's new owner is, and even if defendant did know, 

it is unclear what legal authority it would have to take the dog back at this juncture. 

Because plaintiffs Second Amended Complaint states a procedural due process claim, 

defendant's motion to dismiss must be denied. 

CONCLUSION 

Defendant's Motion to Dismiss (Third) (doc. 23) is DENIED. 

For the reasons set fmth in the opinion and order granting defendant's first motion to 

dismiss, all proceedings in this case are STA YEO pending the Oregon comts' final resolution of 

City of Lebanon v. lvlilburn, CA Al60515, which is currently pending before the Oregon Court 

of Appeals. See lvlilburn, 2016 WL 4163551 at *2. A joint status report is due six months after 

the date of this opinion or thirty days after a decision is issued in the state-cou1t case, whichever 

is earlier. 

IT IS SO ORDERED. 

Dated this/(,, "IJ::yof~Ol7. - u~~ 

AnnAiken 

United States District Judge 

Page 9- OPINION AND ORDER