Defendant's Attorney: B. Andrew Jones

Description: Portland, Oregon personal injury lawyer represented Plaintiff, who sued Defendant claiming that her civil rights were violated by Defendants.


The panel denied a motion for attorney's fees sought pursuant to 42 U.S.C. § 1988 following the panel's decision, in an unpublished disposition, affirming the denial of qualified immunity to a deputy sergeant who allegedly violated plaintiff's Fourth Amendment rights to be free of excessive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 Senn v. Smith, 2022 WL 822198 (9th Cir. March 18, 2022) (unpublished).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.


The panel denied a motion for attorney's fees sought pursuant to 42 U.S.C. § 1988 following the panel's decision, in an unpublished disposition, affirming the denial of qualified immunity to a deputy sergeant who allegedly violated plaintiff's Fourth Amendment rights to be free of excessive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 Senn v. Smith, 2022 WL 822198 (9th Cir. March 18, 2022) (unpublished).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.

Outcome: Motion for fees denied.

Plaintiff's Experts:

Defendant's Experts:

Comments: