Opinion
3:20-cv-02125-YY
04-24-2024
JERI MILLER, Plaintiff, v. MULTNOMAH COUNTY, a municipality, Defendant.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You United States Magistrate Judge
FINDINGS
In August of 2020, state law enforcement officers obtained and executed a search warrant as part of a criminal investigation into neglected and abused animals at Woofin' Palooza, a boarding facility in Portland, Oregon. Samantha Miller, who is plaintiff Jeri Miller's daughter, owned Woofin' Palooza and was eventually charged with, convicted, and sentenced for animal neglect and abuse after pleading guilty in 2023. Among the animals seized from Woofin' Palooza during the search conducted on August 11, 2020, were three dogs that belonged to plaintiff. The state impounded the dogs and refused to return them to plaintiff because of their connection to the ongoing criminal investigation. Plaintiff made several attempts in state court to regain possession of her dogs, and when those efforts failed or stalled, she filed this lawsuit in December of 2020. ECF 1. While this case was pending, plaintiff successfully regained possession of two dogs, Finnegan and Dougal, in October of 2021 via a state court civil action and order; unfortunately, plaintiff's dog Pixel died while in foster care on some unknown date between the August 11, 2020 seizure and October of 2021, after it became frightened by fireworks, ran away from its foster home, and was struck by a car. First Am. Compl. ¶¶ 20, 24, ECF 70.
In this lawsuit, plaintiff generally asserts that defendant's seizure of her dogs and refusal to return them violated her due process rights under the Fourth, Fifth, and Fourteenth Amendments. See First Am. Compl. ¶¶ 51-65. Currently pending is defendant's Motion to Dismiss Pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). ECF 71. As explained below, plaintiff's claims are barred by the Rooker-Feldman doctrine and otherwise fail as a matter of law, and thus defendant's motion should be granted. Furthermore, because plaintiff cannot amend her complaint to cure its deficiencies, this case should be dismissed with prejudice.
I. Motion to Dismiss Standards
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges the court's jurisdiction over the subject matter of the complaint. “The party asserting federal subject matter jurisdiction bears the burden of proving its existence.” Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). Defendants may challenge subject matter jurisdiction either through a “facial attack” or through a “factual attack.” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). “A facial attack accepts the truth of the plaintiff's allegations but asserts that they are insufficient on their face to invoke federal jurisdiction.” Id. (simplified). In contrast, a factual attack “contests the truth of the plaintiff's factual allegations, usually by introducing evidence outside the pleadings.” Id. When a defendant factually challenges jurisdiction, “no presumptive truthfulness attaches to [the] plaintiff's allegations.” Terenkian v. Republic of Iraq, 694 F.3d 1122, 1131 (9th Cir. 2012) (simplified).
A motion to dismiss under Rule 12(b)(6) requires the court to examine whether the complaint contains sufficient factual allegations to show that the pleader is entitled to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Fed.R.Civ.P. 8(a)(2)). While a complaint need not contain detailed factual allegations, “formulaic recitation[s] of the elements of a cause of action” or “naked assertion[s]” devoid of “further factual enhancement” are not sufficient. Id.(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)). In the absence of a cognizable legal theory or sufficient facts to support a cognizable legal theory, the claim should be dismissed. Taylor v. Yee, 780 F.3d 928, 935 (9th Cir. 2015). To survive a motion to dismiss, the plaintiff must plead facts sufficient for the “court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663.
In evaluating a motion to dismiss, the court must accept the allegations of material fact as true and construe those allegations in the light most favorable to the non-moving party. Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). In addition to the factual allegations in the complaint, the court may consider documents that are attached to or incorporated by reference in the complaint, where the parties do not contest the authenticity of those documents, as well as matters capable of judicial notice. Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005).
II. Rooker-Feldman Doctrine
One of defendant's primary arguments in favor of dismissal is that this court lacks subject matter jurisdiction over plaintiff's claims under the Rooker-Feldman doctrine. “The Rooker-Feldman doctrine forbids a losing party in state court from filing suit in federal district court complaining of an injury caused by a state court judgment, and seeking federal court review and rejection of that judgment.” Bell v. City of Boise, 709 F.3d 890, 897 (9th Cir. 2013). “[I]n applying Rooker-Feldman the Ninth Circuit has distinguished between a legal wrong by the state court and a legal wrong committed by an adverse party.” Tabb v. U.S. Bank Nat'l Ass'n, No. 3:16-cv-00446-MO, 2016 WL 4492803, at *1 (D. Or. Aug. 25, 2016), aff'd sub nom. Tabb v. U.S. Bank, 698 Fed.Appx. 381 (9th Cir. 2017). If a plaintiff “asserts as a legal wrong an allegedly erroneous decision by a state court, and seeks relief from a state court judgment based on that decision, Rooker-Feldman bars subject matter jurisdiction in federal district court.” Noel v. Hall, 341 F.3d 1148, 1164 (9th Cir. 2003)). If, however, the plaintiff “asserts as a legal wrong an allegedly illegal act or omission by an adverse party, Rooker-Feldman does not bar jurisdiction.” Id.
Plaintiff brings suit pursuant to 42 U.S.C. § 1983 based on various aspects of defendant's seizure and impoundment of, and refusal to return, her dogs, including:
• Defendant did not provide plaintiff pre-deprivation due process before seizing her dogs. First Am. Compl. ¶ 52, ECF 70.
• Defendant seized her dogs “illegally under state statute.” Resp. 8, ECF 74; see also First Am. Compl. ¶¶ 9-10, ECF 70.
• Defendant failed to follow Multnomah County Code 13.505 relating to the return of impounded animals. First Am. Compl. ¶¶ 14-19, 61, ECF 70.
• Defendant had a policy, regulation, ordinance, or custom that violated plaintiff's rights.Id. ¶ 58; see also id. ¶ 63-65.
In substantial part, plaintiff's claims are barred under the Rooker-Feldman doctrine because they are a de facto appeal of a ruling by the Multnomah County Circuit Court in August of 2020 that plaintiff's dogs were lawfully seized under a search warrant, and that the state had the authority to maintain possession of those dogs under the Oregon Criminal Code until they were no longer necessary for a criminal investigation. On August 10, 2020, defendant obtained a state court warrant to “conduct a search and seizure of ‘neglected and/or abused animals' ” at Woofin' Palooza, a facility in southeast Portland that was operated by plaintiff's daughter, Samantha Miller, and another person. First Am. Compl. ¶ 8, ECF 70; see also Gilmore Decl., Ex. 2 at 4, ECF 72; Id., Ex. 3 at 1, ECF 72. Defendant executed the warrant the next day and seized all the animals at Woofin' Palooza, including plaintiff's three dogs. First Am. Compl. ¶ 11, ECF 70. Plaintiff's dogs were impounded at an animal shelter in Multnomah County. Id. ¶ 12.
The facts are taken from the plaintiff's allegations in the complaint and public records related to the warrant, the subsequent criminal indictment of Samantha Miller, and plaintiff's efforts to regain possession of her dogs through state court actions. Plaintiff's objections to the use of these documents, which are in the public record, for purposes of resolving the pending motion are not well-taken. See Resp. 6-7, ECF 74; Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (“In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment.”); Mullis v. U.S. Bankr. Ct. for Dist. of Nevada, 828 F.2d 1385, 1388 (9th Cir. 1987) (“[F]acts subject to judicial notice may be considered on a motion to dismiss.”). The record does not appear to contain a complete description of the various state court proceedings that have occurred regarding plaintiff's dogs to this point. The court presumes that the parties are aware of the full procedural history and will summarize here the events that the parties have identified as most relevant to the present motion.
Plaintiff attempted to regain possession of the dogs first by sending a letter that purported to satisfy certain requirements of the Multnomah County Code regarding the impoundment and subsequent release of mistreated or neglected animals. First Am. Compl. 14-17, ECF 70. After defendant did not respond to the letter, plaintiff filed “a complaint for declaratory relief and for replevin” in state court against Multnomah County Animal Services. Id. ¶ 19; see also Gilmore Decl., Ex. 11 at 1, ECF 76-2. As part of that action, plaintiff sought provisional process that would have allowed her to take immediate possession of the dogs while her claim for replevin was pending. See Gilmore Decl., Ex. 12 (“Aug. 28, 2020 Hearing Transcript”) at 3, ECF 76-3. Plaintiff primarily asserted that she had complied with the requirements of the Multnomah County Code regarding the release of impounded animals, and that the dogs had not yet been subject to a forfeiture proceeding under a state statute that would have divested her right to own the dogs, and thus she was entitled to possess them. Id. at 5-10. Defendant opposed plaintiffs request for immediate possession on the basis that the dogs were seized pursuant to a valid search warrant, and that defendant had the authority to possess the animals as they were part of “an ongoing criminal investigation.” Id. at 11.
At a hearing held on August 28, 2020, Multnomah County Circuit Court Judge Jerry Hodson denied plaintiff's requested relief from the bench, finding that the warrant authorized both defendant's seizure and continued possession of the dogs:
I find [that] pursuant ORS 167.345, the defendant followed the appropriate rules, obtained a warrant issued by [Multnomah County Circuit Court] Judge Lucero that gave them the right to pursue the action that they have, and to maintain possession of . . . the animals[.]Id. at 17. Further, Judge Hodson noted that the provisions of the Multnomah County Code plaintiff relied upon applied to “stray animals that are picked up off the street . . . and ha[d] no legal effect” on plaintiff request. Id. Rather, the judge explained, under Oregon's criminal code, property seized as evidence for a criminal case could be held until the item “is no longer needed for purposes of a criminal investigation or prosecution.” Id. at 17-18; see also O.R.S. 133.653(a) (“In granting a motion for return or restoration of things seized, the court shall postpone execution of the order until such time as the things in question need no longer remain available for evidentiary use.”). Given the August 28, 2020 hearing was being held just 17 days after the warrant was executed and the dogs were seized, the judge was “surprised by” plaintiff's request, noting that its “timeframe [was] . . . so fast” and that it had the potential to “forc[e] the State's hand to pursue things faster and make this case more of a priority than” other cases. Id. at 18.
The state court has rejected the same arguments that plaintiff raises here-that the defendant was not authorized to seize her dogs under the search warrant, and failed to follow Multnomah County Code regarding the impoundment of animals or state statutes regarding the forfeiture of property. See id. at 7-8, 17. Plaintiff now asks this court to declare that defendant violated her due process rights by wrongly seizing the dogs and failing to follow Multnomah County Code regarding the return of impounded animals and state forfeiture statutes. See Pl. Supp. Br. 10, ECF 81 (explaining that plaintiff's claims “revolve . . . around the seizing and retention of her dogs in violation of county code and civil procedure rules that the defendant was required to adhere to and did not”) (emphasis omitted). Although framed as a claim for “due process,” plaintiff's present action is necessarily rooted in the argument that the state court erred by determining that defendant should have released her dogs sooner as a result of the failure to comply with procedural rules set by Multnomah County Code and state statutes. A ruling in plaintiff's favor on that issue would invalidate the state court's ruling that the dogs' seizure did not run afoul of those laws, and such a claim is barred under Rooker-Feldman as a de facto appeal of a state court order. See Noel, 341 F.3d at 1163 (explaining that one form a forbidden de facto appeal can take is where “the federal plaintiff may complain of harm caused by a state court judgment that directly withholds a benefit from (or imposes a detriment on) the federal plaintiff, based on an allegedly erroneous ruling by that court”); see also Homola v. McNamara, 59 F.3d 647, 651 (7th Cir. 1995) (explaining that “if a suit seeking damages for the execution of a judicial order is just a way to contest the order itself, then the Rooker-Feldman doctrine is in play”); Busch v. Torres, 905 F.Supp. 766, 772 (C.D. Cal. 1995) (ruling that because the plaintiff's claims necessarily required review of the execution of a state court order, they were barred under the Rooker-Feldman doctrine).
III. Due Process Claims
Admittedly, the Rooker-Feldman doctrine is narrow, and the analysis can sometimes become muddled, see Holdner v. Kroger, No. 3:12-cv-01159-PK, 2012 WL 6131637, at *4 (D. Or. Nov. 6, 2012) (“The Ninth Circuit has recognized that district courts often view the Rooker-Feldman doctrine as difficult to articulate and apply.”), a concern at issue here because the record does not contain a clear and comprehensive description of the various state court actions related to plaintiff's dogs and a full discussion of the Rooker-Feldman implications for each one. Thus, to ensure that plaintiff's claims are thoroughly evaluated, the following sections address additional infirmities in plaintiff's claims that require dismissal even if the Rooker-Feldman doctrine does not bar them.
Plaintiff first asserts she was entitled to pre-deprivation due process before her dogs were seized. First Am. Compl. ¶ 52, ECF 70; Pl. Supp. Br. 7, ECF 81 (asserting she was entitled to “individual notice and a pre-deprivation hearing” prior to the dogs' seizure and impoundment) (citing Gallo v. U.S. Dist. Ct. For Dist. of Arizona, 349 F.3d 1169 (9th Cir. 2003)). The Supreme Court has held, however, “that a state official's negligent or even intentional unauthorized deprivation of property does not violate procedural due process rights if the state provides adequate post-deprivation remedies.” Todd v. Mcmahn, No. 1:15-cv-1091-MC, 2016 WL 6650841, at *3 (D. Or. Nov. 9, 2016), aff'd sub nom. Todd v. McMahon, 698 Fed.Appx. 535 (9th Cir. 2017) (citing Hudson v. Palmer, 468 U.S. 517, 533 (1984)). And this court has previously rejected claims essentially identical to plaintiff's here because “Oregon provides adequate post-deprivation remedies for persons whose animals were allegedly seized illegally by animal control officers” to protect the due process rights of the animals' owners. Hershey v. Kaber, No. 1:18-cv-01888-CL, 2019 WL 2494590, at *5 (D. Or. May 17, 2019), report and recommendation adopted, No. 1:18-cv-01888-CL, 2019 WL 2492274 (D. Or. June 13, 2019); Scott v. Jackson Cnty., 403 F.Supp.2d 999, 1006 (D. Or. 2005), rev'd in part on other grounds, 297 Fed.Appx. 623 (9th Cir. 2008) (explaining that the plaintiff was not entitled to a pre-deprivation hearing regarding the seizure of animals pursuant to a warrant because “there were adequate post-deprivation safeguards,” including “a hearing at which she contested the legality of the seizure”); see also Todd, 2016 WL 6650841 at *3.
Plaintiff's briefing largely omits pincites from the various cited authorities.
Plaintiff's theory that defendant violated her due process right after her dogs were seized fares no better. For one, plaintiff admittedly availed herself of several potential post-deprivation remedies in attempting to regain possession of the dogs, and though she was unsatisfied with the result, the right to procedural due process “does not guarantee a particular outcome, only certain basic procedural rights.” Etherly v. State of Oregon, No. CV 3:04-cv-0096-PA, 2005 WL 1839041, at *2 (D. Or. Aug. 3, 2005). Plaintiff successfully avoided the outright forfeiture of her dogs to the state in her daughter Samantha's criminal proceeding. See Gilmore Decl., Ex. 7 at 12, ECF 72-7; Pl. Supp. Br. 2, ECF 81. Plaintiff filed at least two different civil actions, and regained possession of two of her dogs via court order in Jeri Miller and Dezirea Fenske v. Multnomah County, Multnomah County Circuit Court Case No. 21CV34763, in October of 2021. See Pl. Supp. Br. 7, ECF 81. The court sympathizes with the anguish plaintiff surely felt upon learning that one of the dogs had died in foster care while it was being held by the state for use in a criminal investigation. But it is a long-standing principle of federal and Oregon state law that there is a “public duty to provide evidence, and that this obligation persists no matter how financially burdensome it may be.” Hurtado v. United States, 410 U.S. 578, 589 (1973); see also Emery v. State, 297 Or. 755, 766 (1984) (expressly agreeing with Hurtado and other authorities in ruling that “every citizen must make available to the State chattels within his or her control for purposes of evidence without expectation of reimbursement”).
Plaintiff did not provide any documents reflecting the case or order, but defendant does not object to plaintiff's characterizations of these materials. See Def. Supp. Br. 5, ECF 82.
Plaintiff references a November 19, 2020 ruling on “certain motions filed in the state declaratory relief action” in which a state court judge ruled that plaintiff was the “legal owner” of her dogs and that defendant had not acquired title to them. Resp. 10, ECF 74; see also First Am. Compl. ¶ 20, ECF 70. Again, plaintiff does not attach the referenced motion or order. But even accepting plaintiff's characterization of this ruling as true, it does not address the fundamental issue regarding the dogs' relationship to the ongoing criminal investigation into Woofin' Palooza and the individuals charged. There does not appear to be a dispute that plaintiff was at all times the dogs' owner; the true question is, notwithstanding plaintiff's ownership interest, whether defendant could keep the dogs as evidence in a criminal investigation and prosecution. And as described above, the state court answered that question in the August 28, 2020 order finding that “pursuant [to] ORS 167.345, the defendant followed the appropriate rules, obtained a warrant issued by [a state court judge] that gave them the right to pursue the action that they have, and to maintain possession of . . . the animals” until, as required by the Oregon Criminal Code, they were “no longer needed for purposes of a criminal investigation or prosecution.” Gilmore Decl., Ex. 12 at 17-18, ECF 76-3.
For all those reasons, in addition to the Rooker-Feldman bar discussed above, plaintiff's due process claims fail as a matter of law.
IV. Monell Claim
To the extent plaintiff's complaint asserts a claim against defendant under Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978), that claim also fails. See First Am. Compl. ¶ 64-65, ECF 70. Under Monell, defendant may be liable for a constitutional violation under 42 U.S.C. § 1983 based on: “(1) an official policy; (2) a pervasive practice or custom; (3) a failure to train, supervise, or discipline; or (4) a decision or act by a final policymaker.” Horton by Horton v. City of Santa Maria, 915 F.3d 592, 602-03 (9th Cir. 2019). A plaintiff also “may prove that an official with final policy-making authority ratified a subordinate's unconstitutional decision or action and the basis for it.” Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992).
A so-called Monell claim is “contingent on a violation of constitutional rights,” and thus a plaintiff must “show an underlying constitutional violation.” Lockett v. Cnty. of Los Angeles, 977 F.3d 737, 741 (9th Cir. 2020). As explained above, all of plaintiff's constitutional claims necessarily fail, and thus plaintiff cannot state a Monell claim against defendant. See Sabbe v. Washington Cnty. Bd. of Commissioners, 537 F.Supp.3d 1205, 1230 (D. Or. 2021), aff'd, 84 F.4th 807 (9th Cir. 2023) (“If no constitutional violation occurred, then a municipal liability claim fails under § 1983.”).
V. Motion to Strike and for Sanctions
In her response to defendant's motion to dismiss, plaintiff moved to strike defendant's Exhibit 1 to the Gilmore Declaration, which consists of email correspondence between the attorneys. Plaintiff characterizes this exhibit as settlement communications and “requests that monetary sanctions be imposed against defendant” under 28 U.S.C. § 1927 for submitting the exhibit. Resp. 1-3, ECF 74.
First, the court did not rely on this exhibit in resolving defendant's motion, so plaintiff's motion to strike is moot. Plaintiff's request for sanctions is groundless, not only because defendant's submission of a single exhibit does not remotely approach the type of “unreasonable” and “vexatious” conduct that might warrant sanctions, see Kiefel v. Las Vegas Hacienda, Inc., 404 F.2d 1163, 1167 (7th Cir. 1968) (explaining that assessing costs against an attorney as a sanction is a “power which the courts should exercise only in instances of a serious and studied disregard for the orderly processes of justice”), but also because it is procedurally improper. Rule 11(c) requires that a motion for sanctions must be “made separately from any other motion” and that the party moving for sanctions must first serve the motion on the party against whom sanctions are sought and allow that party at least 21 days to correct or withdraw the challenged filing. Fed.R.Civ.P. 11(c)(2). Plaintiff's request for sanctions failed to comply with either requirement.
VI. Dismissal With Prejudice
It is well-established that “a district 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). Ordinarily dismissal on the basis of the Rooker-Feldman doctrine is for lack of subject matter jurisdiction and is therefore without prejudice. White v. Dobrescu, 651 Fed.Appx. 701, 703 (9th Cir. 2016) (“Because we affirm the dismissal on the basis of the Rooker-Feldman doctrine, we treat the dismissal as one without prejudice.”). To the extent, however, that the Rooker-Feldman doctrine might not bar plaintiff's claim, the underlying allegations fail to state a claim and cannot be salvaged by further amendment. Long-standing case law has established that plaintiff was not entitled to pre-deprivation notice and an opportunity to be heard before her dogs were seized by law enforcement officers executing a search warrant, and that Oregon's post-deprivation procedures, of which plaintiff availed herself, are constitutionally sufficient for due process purposes. And without any constitutional violation, plaintiff has no Monell claim. There are no additional facts that plaintiff could allege that would change this analysis.
In asserting that she should be allowed leave to amend, plaintiff states that “a possible vehicle for relief would be an action for damages under Bivens.” Resp. 20, ECF 74. That is plainly a futile effort; a Bivens actions can only be brought against federal officers who are alleged to have violated an individual's constitutional rights. See Pettibone v. Biden, No. 3:20-cv-01464-YY, 2022 WL 19521759, at *5 (D. Or. Sept. 22, 2022), report and recommendation adopted, No. 3:20-cv-1464-YY, 2023 WL 2969267 (D. Or. Apr. 17, 2023) (explaining that a Bivens actions is an “implied private action for damages against federal officers alleged to have violated a citizen's constitutional rights”) (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001)). Plaintiff sued a state municipal government, and thus Bivens does not and cannot not apply.
RECOMMENDATIONS
Defendant's Motion to Dismiss Pursuant to FRCP 12(b)(1) and (6) [71] should be granted as to all of plaintiff's claims. Because plaintiff cannot amend the complaint to state any facts sufficient to state a claim against defendant, this case should be dismissed with prejudice.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Wednesday, May 08, 2024. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.