                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 08-1735


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.



                              No. 08-1794


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.



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)


Submitted:   March 10, 2010                 Decided:   March 26, 2010
Before WILKINSON, KING, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


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.


Unpublished opinions are not binding precedent in this circuit.




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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’l Hosp., 572 F.3d 176, 179-80 (4th

Cir. 2009).        To survive a Rule 12(b)(6) motion, a complaint’s

                                       3
“[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 Atl.

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

                                            4
107, 116 (3d Cir. 2000) (reviewing procedural due process claim

where    plaintiff      did     not      follow     formal        grievance      procedure

provided).

            Keeping         this      flexibility            of    the     due     process

requirements      in    mind,      we    conclude       that      the    procedural       due

process given to Root was adequate.                     Root was notified of the

allegations of animal neglect against her in accordance with Va.

Code Ann. § 3.1-796.115(A) (2007).                     She does not contend that

the process provided in the Code of Virginia was inadequate.

Root’s contention is that, after the County moved for and was

awarded a nonsuit in the circuit court, there was no avenue

provided for return of the animals.                    However, Root had multiple

opportunities to arrest the adoption of the animals directed by

the general district court’s December 22, 2004 ruling and order

entered on January 4, 2005.                Knowing that the order was to be

effective immediately, she did not file for a stay.                            Root cannot

now complain that the order was effectuated.                            Neither did Root

file a motion for stay when she appealed to the state circuit

court.     We conclude the district court did not err in holding

that    there    was   no    violation      of    procedural       due    process       under

these circumstances.

            In    its       cross-appeal,        the    County        argues     that     the

district    court      erred    in      remanding      the    state      claim   to     state

court.     The County asserts this count failed to state a claim

                                            5
for relief as the County was compelled by a general district

court order to place the animals for adoption.                   Therefore, the

County argues that the count should have been dismissed instead

of remanded.       The County maintains that the general district

court order directing that the County place the animals was a

final    order   and   therefore     is   dispositive    on   the   question   of

whether Root is now entitled to the animals.               The County further

argues that the state law count did not set forth a cause of

action, but sought injunctive relief only and relied entirely on

the § 1983 count being a viable cause of action.                      The County

concedes, however, that the state law count arguably states a

claim in the nature of detinue, but contends a claim for detinue

would not be successful because, again, the County had lawfully

placed the animals.       Root continues to argue that the County did

not have the right to place the animals for adoption because the

general district court order was not a final order and title to

the animals had not passed from Root.

            Appellate review of remand orders is permitted when it

is clear that the district court’s order was based, not on a

belief    that   it    lacked    subject      matter   jurisdiction    over    the

removed action, but because it declined to exercise supplemental

jurisdiction     pursuant       to   28   U.S.C.   §   1367(c)   (2006).       See

Jamison v. Wiley, 14 F.3d 222, 233 (4th Cir. 1994); see also

Battle v. Seibels Bruce Ins. Co., 288 F.3d 596, 606 n.16 (4th

                                          6
Cir.   2002)    (explaining         that,     under     “well-settled          precedent,”

remands based on § 1367(c) are appealable final orders under 28

U.S.C. § 1291 (2006)); Hinson v. Norwest Fin. South Carolina,

Inc., 239 F.3d 611, 615 (4th Cir. 2001) (finding that court had

jurisdiction to review remand order that was “not derived from

§ 1447(c), but is inherent in the authority of a district court

to decline to exercise jurisdiction under 28 U.S.C. § 1367(c)”).

            Here,      the      district      court     specifically          declined   to

exercise its jurisdiction under § 1367(c).                        The district court’s

ruling   from      the     bench     demonstrates          that    the       court,   having

dismissed      the       only      federal     claim,       believed         it   had    the

discretionary        authority       to   exercise      supplemental          jurisdiction

over the remaining state law claim, but chose not to do so.

Accordingly, because the district court did not remand for lack

of subject matter jurisdiction, or because of a defect in the

removal procedure, this court has jurisdiction to review the

district court’s remand decision.

            The      district       court’s       remand    order      is     reviewed   for

abuse of discretion.            Hinson, 239 F.3d at 617.               Under § 1367(c),

a   district      court      may    decline       to   exercise        its    supplemental

jurisdiction if:

            (1)      the claim raises a                novel      or   complex
                     issue of State law,

            (2)      the claim substantially dominates over
                     the claim or claims over which the

                                              7
                    district      court               has          original
                    jurisdiction,

            (3)     the district court has              dismissed all
                    claims over which it                had original
                    jurisdiction, or

            (4) in exceptional circumstances, there are
                 other compelling reasons for declining
                 jurisdiction.

28 U.S.C. § 1367(c).

            Here,    the    court   had    dismissed         the    sole       claim    over

which it had original jurisdiction.               See 28 U.S.C. § 1367(c)(3).

There is nothing in the record to suggest that it was an abuse

of discretion to decline to exercise supplemental jurisdiction.

We therefore also affirm the portion of the district court’s

order    remanding    the   state   law       claim    to    the    state       court   for

further    proceedings.       We    deny      Root’s    motion          to    dismiss   the

cross-appeal.

            We dispense with oral argument because the facts and

legal    contentions    are    adequately       presented          in    the    materials

before    the   court   and   argument        would    not    aid       the    decisional

process.

                                                                                 AFFIRMED




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