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Bepple v. Shelton

United States District Court, D. Oregon

May 18, 2017

DR. STEVE SHELTON, et al., Defendants.

          Leonard R. Berman, Law Office of Leonard R. Berman, Of Attorneys for Plaintiffs.

          Ellen 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.


          Michael H. Simon United States District Judge

         Plaintiff 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.


         The 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.

         After 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.


         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. 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 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: “‘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)).

         In 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).

         Consistent 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, ...

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