Linda Senn v. Kyle Smith

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LINDA SENN ,
Plaintiff-Appellee,
v.
KYLE SMITH,
Defendant-Appellant,
and
CITY OF PORTLAND ; LARRY
GRAHAM ; J EFFREY M CD ANIEL ;
M ULTNOMAH COUNTY ; J OHN DOES ,
1–10,
Defendants.
No. 21-35293
D.C. No.
3:18-cv-01814-
HZ
ORDER
Filed June 8, 2022
Before: Susan P. Graber, Carlos T. Bea, and Milan D.
Smith, Jr., Circuit Judges.
Order

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2 SENN V . SMITH
SUMMARY*
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in an unpublished disposition, affirming the denial of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March 18, 2022) (unpublished).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.
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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SENN V . SMITH 3
COUNSEL
B. Andrew Jones (argued), Multnomah County Attorney’s
Office, Portland, Oregon, for Defendant-Appellant.
Athul K. Acharya (argued), Public Accountability, Portland,
Oregon; Juan Chavez, Oregon Justice Resource Center,
Portland, Oregon; for Plaintiff-Appellee.
ORDER
Plaintiff Linda Senn brought this 42 U.S.C. § 1983
action against Defendant Kyle Smith, 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. In an unpublished disposition, we
affirmed the denial of qualified immunity and remanded for
trial. Senn v. Smith, 2022 WL 822198 (9th Cir. March 18,
2022) (unpublished).
Plaintiff now seeks attorney’s fees pursuant to 42 U.S.C.
§ 1988(b), which generally grants courts discretion to award
“a reasonable attorney’s fee” to a “prevailing party.” We
deny fees because Plaintiff is not a “prevailing party” within
the meaning of § 1988(b). We publish 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
fees pursuant to § 1988(b), because the plaintiff has not yet
prevailed on any claim.

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4 SENN V . SMITH
Three decades ago, sitting en banc, we affirmed a district
court’s denial of qualified immunity in a 42 U.S.C. § 1983
action, but we denied the plaintiff’s motion for attorney’s
fees. 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). We explained
that, even though the plaintiff had successfully defeated the
defendants’ motion for qualified immunity, the plaintiff “is
not yet entitled to attorneys’ fees under 42 U.S.C. § 1988
because he has not yet prevailed on a claim.” Id. at 1252
n.13 (citing Hanrahan v. Hampton, 446 U.S. 754, 757
(1980) (per curiam)). “Section 1988 does not provide for
attorneys’ fees where a party merely establishes his right to
a trial.” Id.
Although the Supreme Court later overruled Cooper in
part, on a different issue, Chavez, 538 U.S. at 773, our
holding in Cooper as to attorney’s fees remains good law.
Because Cooper is directly on point, Cooper binds us.
Miller v. Gammie, 335 F.3d 889, 899–900 (9th Cir. 2003)
(en banc).
Independently, we note our agreement with the rule
announced in Cooper. The rule comports with Supreme
Court precedent. See Hanrahan, 446 U.S. at 758 (holding
that the plaintiffs were not “prevailing part[ies]” pursuant to
§ 1988(b) because “[t]he Court of Appeals held only that the
[plaintiffs] were entitled to a trial of their cause”). And the
rule accords with holdings by our sister circuits in the
identical procedural posture. See, e.g., Ellis v. Wright,
293 F. App’x 634, 634 n.1 (11th Cir. 2008) (per curiam)
(unpublished) (“Ellis’s motion for attorney’s fees under
42 U.S.C. § 1988 is denied. Section 1988 only authorizes
fee awards to prevailing parties. A party is not a prevailing
party until they have prevailed on the merits of at least one

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SENN V . SMITH 5
of their claims. Ellis has only succeeded on an interlocutory
appeal, which will allow her suit to proceed to an
adjudication of the merits; therefore, she is not a prevailing
party.” (internal quotation marks and citations omitted));
Engel v. Wendl, 921 F.2d 148, 150 (8th Cir. 1990) (per
curiam) (order) (“Although plaintiff was successful in the
appeal on the issue of qualified immunity, plaintiff has yet
to establish that he is a ‘prevailing party’ under section
1988.”).
Plaintiff’s argument to the contrary rests on a single
published decision, issued in 1986 and involving a different
statutory scheme. Mantolete v. Bolger, 791 F.2d 784 (9th
Cir. 1986). To the extent that the principles described in
Mantolete conflict with the rule in Cooper, we are bound to
follow Cooper, which is directly on point and was decided
by the en banc court later in time than Mantolete. Miller,
335 F.3d at 900. We leave for another day the question
whether Mantolete remains good law in any respect. See,
e.g., Farrar v. Hobby, 506 U.S. 103, 111 (1992) (“[T]o
qualify as a prevailing party, a civil rights plaintiff must
obtain at least some relief on the merits of his claim. The
plaintiff must obtain an enforceable judgment against the
defendant from whom fees are sought or comparable relief
through a consent decree or settlement. Whatever relief the
plaintiff secures must directly benefit him at the time of the
judgment or settlement.” (citations omitted)).
Motion for Fees DENIED.

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