Root v. County of Fairfax, 032610 FED4, 08-1735

Docket Nº:08-1735, 08-1794
Opinion Judge:PER CURIAM:
Party Name:LOUISE ROOT, Plaintiff - Appellant, v. COUNTY OF FAIRFAX; MICHELLE MCCALL; PAMEAL SCHMOLL; MICHEL BODART; DIANNE LANIGAN; SUE GILBERT; SHEILA REILLY; JOHN COLWELL; BRYANT FLETCHER, Defendants-Appellees. LOUISE ROOT, Plaintiff - Appellee, v. COUNTY OF FAIRFAX; MICHELLE MCCALL; PAMEAL SCHMOLL; MICHEL BODART; DIANNE LANIGAN; SUE GILBERT; JOHN COLWELL;
Attorney:Richard E. Gardiner, Fairfax, Virginia, for Appellant/Cross-Appellee. David P. Bobzien, County Attorney, Peter D. Andreoli, Jr., Deputy County Attorney, Karen L. Gibbons, Senior Assistant County Attorney, Fairfax, Virginia; David J. Fudala, Fairfax, Virginia, for Appellees/Cross-Appellants.
Judge Panel:Before: WILKINSON, KING, and SHEDD, Circuit Judges.
Case Date:March 26, 2010
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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LOUISE ROOT, Plaintiff - Appellant,

v.

COUNTY OF FAIRFAX; MICHELLE MCCALL; PAMEAL SCHMOLL; MICHEL BODART; DIANNE LANIGAN; SUE GILBERT; SHEILA REILLY; JOHN COLWELL; BRYANT FLETCHER, Defendants-Appellees.

LOUISE ROOT, Plaintiff - Appellee,

v.

COUNTY OF FAIRFAX; MICHELLE MCCALL; PAMEAL SCHMOLL; MICHEL BODART; DIANNE LANIGAN; SUE GILBERT; JOHN COLWELL; BRYANT FLETCHER; SHEILA REILLY, Defendants-Appellants.

Nos. 08-1735, 08-1794

United States Court of Appeals, Fourth Circuit

March 26, 2010

UNPUBLISHED

Submitted: March 10, 2010.

Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:08-cv-00498-CMH-TCB)

Richard E. Gardiner, Fairfax, Virginia, for Appellant/Cross-Appellee.

David P. Bobzien, County Attorney, Peter D. Andreoli, Jr., Deputy County Attorney, Karen L. Gibbons, Senior Assistant County Attorney, Fairfax, Virginia; David J. Fudala, Fairfax, Virginia, for Appellees/Cross-Appellants.

Before: WILKINSON, KING, and SHEDD, Circuit Judges.

Affirmed bye unpublished per curiam opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Louise Root appeals from the district court's order dismissing her 42 U.S.C. § 1983 (2006) complaint under Fed.R.Civ.P. 12(b) (6) for failure to state a claim. The Appellees filed a cross-appeal of the portion of the order remanding the supplemental state law claim to the state court. Root filed a motion to dismiss the cross-appeal. For the reasons below, we affirm the district court's order.

Louise Root filed a civil action in the Fairfax County Circuit Court against the County of Fairfax (County) and eight individual defendants, arising from the seizure of nine dogs and one horse from Root by County animal control officers. The individual defendants were sued because ownership of the animals was transferred to them by adoption from the County. The action contained one count seeking damages under 42 U.S.C. § 1983 against the County for depriving Root of her property without due process under the Fourteenth and Fifth Amendments. The only remaining count sought an injunction against the County and the individual defendants ordering the return of the animals to Root.

We review de novo the district court's rulings on a motion to dismiss pursuant to Fed.R.Civ.P. 12(b) (6) . See Philips v. Pitt County Mem'1 Hosp., 572 F.3d 176, 179-80 (4th Cir. 2009) . To survive a Rule 12(b) (6) motion, a complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level" and have "enough facts to state a claim to relief that is plausible on its face." Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007) . Generally, when ruling on a Rule 12(b)(6) motion, "a judge must accept as true all of the factual allegations contained in the complaint." Ericson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted).

Under the Due Process Clause of the Fifth Amendment, no person shall be "deprived of life, liberty, or property, without due process of law." U.S. Const, amend. V. Procedural due process requires, at a minimum, fair notice and an opportunity to be heard. Mathews v. Eldridge, 424 U.S. 319, 333 (1976). In order to determine whether an individual has received fair notice, we "must examine the relevant facts of each case." United States v. Hoechst Celanese Corp., 128 F.3d 216, 224 (4th Cir. 1997) . Beyond the minimum requirements of notice and an opportunity to be heard, due process is "flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481 (1972) .

To state a successful claim for failure to provide due process, "a plaintiff must have taken advantage of the processes that are available to him or her, unless those processes are unavailable or patently inadequate." Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000) (reviewing procedural due process...

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