LINDA SENN V. KYLE SMITH, No. 21-35293 (9th Cir. 2022)
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Plaintiff brought this 42 U.S.C. Section 1983 action against Defendant, a deputy sergeant with the Multnomah County Sheriff’s Office. Plaintiff alleges that Defendant violated her Fourth Amendment right to be free of excessive force by pepper-spraying her without adequate justification. The district court denied Defendant’s motion for qualified immunity, and Defendant filed this interlocutory appeal.
The Ninth Circuit denied a motion for attorney’s fees sought pursuant to 42 U.S.C. Section 1988 following the court's decision, in an unpublished disposition, affirming the denial of qualified immunity to a deputy sergeant who allegedly violated Plaintiff’s Fourth Amendment rights to be free of excessive force.
The court denied fees because Plaintiff was not a “prevailing party” within the meaning of Section 1988(b). The court published this order to reaffirm that a plaintiff who accomplishes no more than to defeat a defendant’s motion for qualified immunity is not entitled to attorney’s fees pursuant to Section 1988(b), because the plaintiff has not yet prevailed on any claim. Although the Supreme Court later overruled Cooper in part, on a different issue, the holding in Cooper as to attorney’s fees remained good law. Independently, the court noted its agreement with the rule announced in Cooper, which comports with Supreme Court precedent and accords with holdings by sister circuits in the identical procedural posture.
Court Description: Civil Rights/Attorneys’ Fees. The panel denied a motion for attorney’s fees sought pursuant to 42 U.S.C. § 1988 following the panel’s decision, in an unpublished disposition, affirming the denial of qualified immunity to a deputy sergeant who allegedly violated plaintiff’s Fourth Amendment rights to be free of excessive force. Senn v. Smith, 2022 WL 822198 (9th Cir. March 18, 2022) (unpublished). The panel denied fees because plaintiff was not a “prevailing party” within the meaning of § 1988(b). The panel published this order to reaffirm that a plaintiff who accomplishes no more than to defeat a defendant’s motion for qualified immunity is not entitled to attorney’s fees pursuant to § 1988(b), because the plaintiff has not yet prevailed on any claim. The panel held that it was bound by this court’s prior decision in Cooper v. Dupnik, 963 F.2d 1220, 1252 & n.13 (9th Cir. 1992) (en banc), overruled in part on other grounds by Chavez v. Martinez, 538 U.S. 760 (2003). Although the Supreme Court later overruled Cooper in part, on a different issue, Chavez, 538 U.S. at 773, the holding in Cooper as to attorney’s fees remained good law. Independently, the panel noted its agreement with the rule announced in Cooper, which comports with Supreme Court precedent and accords with holdings by sister circuits in the identical procedural posture. SENN V. SMITH 3
This opinion or order relates to an opinion or order originally issued on March 18, 2022.
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