United States District Court, D. Oregon
Leonard R. Berman, Law Office of Leonard R. Berman, Of
Attorneys for Plaintiffs.
F. Rosenblum, Attorney General; Michael R. Washington, Senior
Assistant Attorney General; Jessica B. Spooner, Assistant
Attorney General; Oregon Department of Justice, Trial
Division, Of Attorneys for Defendants.
OPINION AND ORDER
Michael H. Simon United States District Judge
Kimberly Bepple (“Bepple” or
“Plaintiff”) was an inmate at the Coffee Creek
Correctional Facility (“CCCF”), a state prison
for women in Oregon. In this lawsuit, Bepple alleges a civil
rights claim under 42 U.S.C. § 1983 against Defendants
Dr. Robert Snider and Dr. Steve Shelton and tort claims of
medical negligence and sexual battery against the State of
Oregon. The Court previously scheduled a jury trial to begin
on March 6, 2017. On January 20, 2017, however, the parties
notified the Court that the action had been settled. Under
the parties' settlement agreement, in exchange for
Plaintiff's release of claims, the State agreed to pay
Bepple a settlement payment of $175, 000, plus reasonable
attorney's fees and costs to be determined by the Court.
ECF 106 at 3. Bepple timely filed her motion for
attorney's fees and bill of costs. Defendants timely
objected to Bepple's fee petition. For the reasons stated
below, the Court grants in part Bepple's motion for
attorney's fees and grants in full her bill of costs.
following facts are presented in the light most favorable to
Bepple. On April 24, 2013, Bepple was admitted as an inmate
at CCCF. On May 1, 2013, Dr. Snider performed a gynecological
examination on Bepple at CCCF. That facility requires
gynecological examinations for all female inmates. Bepple had
undergone routine gynecological examinations in the past,
both in and out of custody, without incident. Dr.
Snider's examination, however, deviated from what Bepple
had previously experienced. A medical assistant attended
Bepple's examination. During Dr. Snider's examination
of Bepple, a curtain was drawn, shielding Bepple from the
view of the medical assistant. Dr. Snider inserted a speculum
into Bepple's vagina and manipulated it “in a
non-therapeutic and highly irregular and offensive
manner.” ECF 1 ¶ 8. Dr. Snider told Bepple that
her cervix was playing “hide and seek.”
Id. ¶¶ 19, 21-22.
the examination, Bepple called friends and family and told
them that Dr. Snider had “sexually assaulted”
her. ECF 8 at ¶ 7. Bepple alleges that Dr. Snider acted
for his own sexual gratification rather than for any
legitimate medical reason. According to Bepple, Defendants
unlawfully failed to require visible attendants during
gynecological examinations, report Dr. Snider's conduct
to an outside agency, and hire, train, and supervise medical
staff in how properly to treat female inmates to prevent
sexual assault. According to Bepple's counsel, there are
at least seven other women who previously were sexually
assaulted by Dr. Snider while they were inmates at CCCF.
FOR ATTORNEY'S FEES
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).
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. In addition, 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 amount may be adjusted in certain
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). 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).
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.
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: “‘the 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)).
addition, a number of district 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. As explained
in a “Message from the Court Regarding Fee Petitions,
Increasingly, the Court has reviewed fee petitions where all
or a substantial part of an attorney's time for one day
is billed as a “block” without segregating time
for individual tasks. This makes assessing the reasonableness
of the time spent on a particular task extremely difficult.
The Court recommends that members of the bar record time
spent on particular, individual tasks and support their fee
petitions with a level of documentation that allows the
Court, and opposing counsel, to adequately review the
reasonableness of the time spent on a single task.
U.S. District Court, District of Oregon, “Message from
the Court Regarding Fee Petitions, ” available at
(last updated March 2, 2017) (last visited May 16, 2017).
with this cautionary statement, United States Magistrate
Judge John Acosta 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 reduces 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). This
Court follows Judge Acosta's approach. See, e.g.,
O'Connor v. County of Clackamas, Case No.
3:11-cv-1297-SI, 2016 WL 3063869, ...