United States District Court, D. Oregon
OPINION AND ORDER
MICHAEL W. MOSMAN, Chief United States District Judge
Disability Rights Oregon (DRO) and Metropolitan Public
Defender (MPD) seek a modification of the injunction in this
case to allow for monitoring of Defendants, a status hearing
in six months on Defendants' continued compliance with
the injunction, and a designation of prevailing party status
under 42 U.S.C. § 1988. [134 and 140], As discussed
below, I DENY Plaintiffs' requests.
The Injunction and Plaintiffs' Motions for
2002, Judge Panner issued an injunction requiring Defendants
to transport criminal defendants designated unfit under ORS
161.370 to the Oregon State Hospital within seven days of the
order declaring the defendant unfit. . He did not assign
Plaintiffs to monitor Defendants' compliance with the
Order. Id. Defendants complied with the injunction
for sixteen years but fell out of compliance in October 2018.
[140 at 3]. The noncompliance lasted until July 25, 2019, a
period of about nine months. [144 at 3]. In May 2019,
Plaintiffs filed Motions [85 and 91] for contempt. After the
June 11, 2019, hearing on those motions, I declined to make a
finding of contempt. . Because Defendants remained out
of compliance at the June hearing, I set a compliance hearing
for ninety-days out on September 12, 2019. Id.
Plaintiffs' Requests for Modification of the
Injunction and to be Declared the Prevailing Party in their
August 23, 2019, Plaintiffs filed a Brief for the Compliance
Hearing (compliance hearing brief)  that requested I:
(1) consider modifying the Order  granting injunctive
relief in this case to allow for monitoring of Defendants by
the Court and by Plaintiffs [134 at 3-4, 5, 7]; (2) set a
status hearing in six months to determine whether Senate
Bills 24 and 25 undermined Defendants' compliance with
the injunction and pretrial detainees' constitutional
rights Id; and (3) declare them the "prevailing
party under  U.S.C. § 1988 so that they may seek an
award of attorney fees and costs." [Id. at 7].
support of the request to modify and set a hearing in six
months, Plaintiffs asserted that Defendants' several
months of noncompliance warrants monitoring and that new
legislation, Senate Bills (SB) 24 and 25 will likely result
in continued violation of the injunctions. Plaintiffs argued
that SB 24 requires diversion to community restoration
programs that do not yet exist. [134 at 6]. Plaintiffs argued
they met section 1988's definition of prevailing party
despite no finding of contempt because Defendants only began
to reduce the wait list for admission to the state hospital
in May 2019, after Plaintiffs filed their contempt Motions.
Id. According to Plaintiffs, I could
"reasonably attribute the state's response as at
least partially prompted by the contempt
action" and declare them the prevailing parties under 42
U.S.C. § 1988. Id. (emphasis added). Defendants
filed a two-page response that addressed only Plaintiffs'
request to be declared the prevailing party. .
the September 12, 2019, compliance hearing, Plaintiffs relied
on their argument that their motivation of Defendants'
conformity to the injunction warranted prevailing party
status. [143 at 5:16-6:13]. They also, for the first time,
asserted that their efforts to enforce the injunction-their
"monitoring" work-entitled them to fees. To give
the parties a chance to brief Plaintiffs new argument for
fees, I took the Plaintiffs' monitoring, six-month status
hearing, and prevailing party requests under advisement and
allowed supplemental briefing on the attorney fees issue.
Plaintiffs' Request for Prevailing Party
entitled to prevailing party fees under section 1988, a party
must have "succeed[ed] on any significant issue in
litigation which achieves some of the benefit the parties
sought in bringing the suit." Hensley v.
Eckerharhart, 461 U.S. 424, 433 (1983) (citations
omitted). In cases where a party previously prevailed, fees
may, under certain circumstances, be allowed for efforts
leading to a motion that was denied. Balla v. Idaho,
677 F.3d 910, 916 (2012). Generally, however, for trial court
to act within its discretion in awarding a party fees for a
lost motion, the motion must have been the catalyst in
achieving the benefit the motion sought. Id., Here,
the parties agree that Plaintiffs were the original
prevailing parties in this action. They disagree about
whether Plaintiffs actions-either their "post-judgment
monitoring" or filing the contempt Motions-catalyzed
Defendants to conform with the injunction in July 2019.
their supplemental briefing, Plaintiffs make a conclusory
argument that their "post-judgment monitoring" is
compensable because it forced Defendants' back into
compliance with the injunction. As noted above, Judge Panner
did not charge Plaintiffs with monitoring Defendants'
compliance with the injunction. Despite this, however,
plaintiff DRO asserts that it "performed monitoring for
sixteen years with no petition for fees." [140 at 9].
Plaintiff MPD does not assert that it performed any
monitoring over the past sixteen years but does assert that
it "similarly made extensive efforts to force Defendants
into compliance." [140 at 9].
cases cited by Plaintiffs in their supplemental briefing
generally support the proposition that reasonable monitoring
of a court's decrees to insure compliance and that the
court's plan is working is compensable. See, e.g.
Northcross v. Bd. of Ed. of Memphis City Sch, 611 F.2d
624, 637 (1979) (overruled on other grounds) (providing
guidance to the district court on remand that "services
devoted to reasonable monitoring of the court's decrees,
both to insure full compliance and to ensure that the plan is
indeed working ... are compensable services");
Garrity v. Sununu,752 F.2d 727, 738 (1st Cir. 1984)
(finding the district court did not ...