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Prison Legal News v. Columbia County

United States District Court, D. Oregon

March 24, 2014

COLUMBIA COUNTY; COLUMBIA COUNTY SHERIFF'S OFFICE; JEFFREY DICKERSON, individually and in his capacity as Columbia County Sheriff, Defendants.

Jesse A. Wing and Katherine C. Chamberlain, Macdonald, Hoague & Bayless, Lance Weber, Marc D. Blackman, (deceased), Ransom Blackman, LLP, Of Attorneys for Plaintiff.

Steven A. Kraemer, Kari A. Furnanz, and Gregory R. Roberson, Hart Wagner, LLP, Of Attorneys for Defendants.


MICHAEL H. SIMON, District Judge.


After a four-day bifurcated bench trial addressing only issues of liability and equitable relief, Plaintiff Prison Legal News ("PLN" or "Plaintiff") prevailed in its civil rights lawsuit under 42 U.S.C. § 1983 against Defendants Columbia County, the Columbia County Sheriff's Office, and Sheriff Jeffrey Dickerson (collectively "Defendants"). Section 1983 allows a cause of action against state and local governments and their officials for violations of a person's federal constitutional or statutory rights. Defendants operate the county jail in Columbia County, Oregon (the "Jail"). In its first claim (which Plaintiff called "Count One"), PLN asserted that Defendants' "postcard only" and "no magazine" policies for inmate mail violated PLN's First Amendment rights, as well as the First Amendment rights of inmates at the Jail and their correspondents in addition to PLN. In its second claim (which Plaintiff called "Count Two"), PLN asserted that Defendants' "notice and appeal" policy for rejected inmate mail violated PLN's Fourteenth Amendment procedural due process rights and the procedural due process rights of inmates and their correspondents. PLN prevailed on both claims, and the Court determined that PLN was entitled to declaratory and permanent injunctive relief. After the conclusion of the liability and equitable relief trial, the parties stipulated that Defendants would pay Plaintiff $15, 000 to resolve Plaintiff's claim for money damages, thereby eliminating the need for another trial. After the Court entered Judgment, PLN timely moved for an award of attorney's fees and expenses. ECF 221. Defendants oppose PLN's motion. For the reasons that follow, the Court awards PLN $763, 803.45 in attorney's fees and $38, 373.01 in expenses.


In a civil rights lawsuit brought under 42 U.S.C. § 1983, the district court may award the prevailing party its reasonable attorney's fees as part of costs. 42 U.S.C. § 1988(b); A.D. v. Cal. Highway Patrol, 712 F.3d 446, 460 (9th Cir. 2013). A district court's disposition of a motion for attorney's fees must "provide a reasonably specific explanation for all aspects of a fee determination" in order to allow for "adequate appellate review." Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 558 (2010).

The preferred method of calculating reasonable attorney's fees is the "lodestar" method. Id. at 551-52. This is because the lodestar method produces an award that roughly approximates the fee that the prevailing attorney would have received if he or she had been representing a paying client who was billed by the hour in a comparable case, is readily administrable, and is objective. Id. Additionally, one purpose of the federal fee-shifting statutes is to ensure that a prevailing plaintiff's counsel receives a fee that is "sufficient to induce a capable attorney to undertake the representation of a meritorious... case." Id. at 552. The lodestar method of calculating attorney's fees yields a fee that is presumptively sufficient to achieve this objective. Id. Although the lodestar calculation results in a presumptively reasonable fee, this fee may be adjusted in certain circumstances. Id.

The lodestar amount is the product of the number of hours reasonably spent on the litigation multiplied by a reasonable hourly rate. McCown v. City of Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009).[1] In making this calculation, the district court should take into consideration various reasonableness factors, including the quality of an attorney's performance, the results obtained, the novelty and complexity of a case, and the special skill and experience of counsel. See Perdue, 559 U.S. at 553-54; Gonzalez v. City of Maywood, 729 F.3d 1196, 1209 n.11 (9th Cir. 2013).

In determining the number of hours reasonably spent, "the district court should exclude hours that are excessive, redundant, or otherwise unnecessary.'" McCown, 565 F.3d at 1102 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). The party seeking an award of attorney's fees "has the burden of submitting billing records to establish that the number of hours it has requested [is] reasonable." Gonzalez, 729 F.3d at 1202.

The district court may determine, in one of two ways, whether hours are excessive, redundant, or otherwise unnecessary, and thus excludable. The court may conduct an hour-by-hour analysis of the fee request. Id. at 1203. Alternatively, "when faced with a massive fee application the district court has the authority to make across-the-board percentage cuts either in the number of hours claimed or in the final lodestar figure." Id. (quoting Gates v. Deukmejian, 987 F.2d 1392, 1399 (9th Cir. 1992) (quotation marks omitted)). "[W]hen a district court decides that a percentage cut (to either the lodestar or the number of hours) is warranted, it must set forth a concise but clear explanation of its reasons for choosing a given percentage reduction.'" Id. (quoting Gates, 987 F.2d at 1400). The Ninth Circuit recognizes one exception to this rule: "[T]he district court can impose a small reduction, no greater than 10 percent ___ a haircut'___ based on its exercise of discretion and without a more specific explanation.'" Id. (alteration in original) (quoting Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008)).

In addition, other courts, including the District of Oregon, specifically caution against both block-billing and providing vague or otherwise inadequate descriptions of tasks because these practices hinder a court's ability to assess the reasonableness of the time expended. See, e.g., U.S. District Court, District of Oregon, Message from the Court Regarding Attorney Fee Petitions, available at (last updated Feb. 6, 2013). Applying this cautionary statement, United States Magistrate Judge John Acosta has noted, "the court may excuse this method when the billing period is no more than three hours." Noel v. Hall, 2013 WL 5376542, at *6 (D. Or. Sept. 24, 2013). For block-billing periods in excess of three hours, however, Judge Acosta has reduced each applicable entry by fifty percent.

Accordingly, the block-billed time requested over the three-hour maximum will be reduced by fifty percent. Such a reduction is warranted because the vague nature of the entry makes it impossible for the court to make any assessment as to the reasonableness of that time expended. See Lyon v. Chase Bank USA, N.A., 656 F.3d 877, 892 (9th Cir. 2011) ("The fee award may be reduced if [plaintiff's] renewed request is supported only by block-billing statements of the relevant activity, although a fee award cannot be denied on this basis.").

Id. (alteration and emphasis in original).

After determining the number of hours reasonably spent, the district court then calculates the reasonable hourly rates for the attorneys and paralegals whose work comprise the reasonable number of hours used in calculating the lodestar amount. For this purpose, the "prevailing market rates in the relevant community' set the reasonable hourly rates." Gonzalez, 729 F.3d at 1205 (quoting Dang v. Cross, 422 F.3d 800, 813 (9th Cir. 2005)). "Generally, when determining a reasonable hourly rate, the relevant community is the forum in which the district court sits.'" Id. (quoting Prison Legal News v. Schwarzenegger, 608 F.3d 446, 454 (9th Cir. 2010)). Within this geographic community, the district court should consider the experience, skill, and reputation of the attorneys or paralegals involved. Id.

In determining reasonable hourly rates, typically "[a]ffidavits of the plaintiffs' attorney and other attorneys regarding prevailing fees in the community, and rate determinations in other cases, particularly those setting a rate for the plaintiffs' attorney, are satisfactory evidence of the prevailing market rate." United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990). In addition, courts in the District of Oregon have the benefit of several billing rate surveys. One useful survey is the Oregon State Bar 2012 Economic Survey ("OSB 2012 Survey"), which contains data on attorney billing rates based on type of practice, geographic area of practice, and years of practice. A copy of the OSB 2012 Survey is available at (last visited on November 18, 2013).

Another useful survey, although somewhat more limited in scope, is the Morones Survey of Commercial Litigation Fees, updated as of January 1, 2012 ("Morones 2012 Survey"). The Morones 2012 Survey contains data on attorney billing rates based on years of experience but is confined to commercial litigation attorneys practicing in Portland, Oregon. The Morones 2012 Survey reports data for 306 attorneys from 18 law firms (out of 28 law firms requested to provide data). A copy of the Morones 2012 Survey is available at, among other places, the United States District Court for the District of Oregon PACER electronic case files in the case of Prison Legal News v. Columbia County, No. 3:12-cv-00071-SI (ECF 229-2 and ECF 231-2).

There is a strong presumption that the fee arrived at through the lodestar calculation is a reasonable fee. Perdue, 559 U.S. at 552. A district court may, however, adjust the lodestar amount in "rare" and "exceptional" cases, such as when a particular factor bearing on the reasonableness of the attorney's fee is not adequately taken into account in the lodestar calculation.[2] See Perdue, 559 U.S. at 552-54 (finding that, in certain circumstances, the superior performance of counsel may not be adequately accounted for in the lodestar calculation); Cunningham v. Cnty. of Los Angeles, 879 F.2d 481, 488 (9th Cir. 1988) (finding that although in ordinary cases the "results obtained" factor is deemed adequately accounted for in the lodestar calculation, it may serve as a basis to adjust the lodestar when "an attorney's reasonable expenditure of time on a case [is not] commensurate with the fees to which he is entitled").


A. Attorney's Fees

Plaintiff initially requested $826, 313 in attorney fees under 42 U.S.C. § 1988. ECF 221. This amount is comprised of $812, 543 for work performed (2, 656.9 hours) in the litigation other than the preparation of the fee petition, and $13, 770 for work performed (41.3 hours) in preparing the fee petition. ECF 223 at 8-9[3]; ECF 223-3; ECF 223-14. With its reply, Plaintiff requested an additional $22, 357.50 for work performed (69.5 hours) in responding to Defendants' objections to Plaintiff's request for fees and costs. ECF 270 at 5; ECF 270-2. Plaintiff arrived at these amounts by multiplying the number of hours expended on the litigation (including the fee petition) by the hourly rates for Plaintiff's attorneys and paralegals. Plaintiff notes that these totals reflect reductions that Plaintiff has already made "where time arguably could have been more efficiently spent." ECF 222 at 10. Plaintiff contends that both the number of hours worked for which fees are requested and the hourly rates requested are reasonable and that PLN's fee request is a "conservative" lodestar. Id. Plaintiff does not seek any upward adjustment to its lodestar amount.

Defendants oppose Plaintiff's request on four primary grounds. First, Defendants argue that plaintiff did not achieve a more favorable result than the offer of judgment tendered by Defendants. Second, Defendants argue that the number of hours that Plaintiff's attorneys and paralegals expended on the litigation were excessive in light of the significance and complexity of the lawsuit and the results obtained. Third, Defendants argue that the hourly rates requested by Plaintiff's attorneys are unreasonable. Fourth, Defendants argue ...

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