Bell v. Clackamas County
| Decision Date | 20 August 2003 |
| Docket Number | No. 01-35790.,No. 01-35508.,No. 01-35545.,No. 01-35854.,01-35508.,01-35545.,01-35790.,01-35854. |
| Citation | 341 F.3d 858 |
| Parties | Carmichell Bell, Plaintiff-Appellee, v. Clackamas County, a political subdivision of the State of Oregon; Clackamas County Sheriff; Jeff Davis, Deputy; Roxanne Cadotte, Deputy; Alan Alderman, Sergeant; Juli Fitzwater, Deputy; Jeff Huva, Deputy; Jeff Grahn, Deputy; Michael Machado, Lieutenant; Pat Detloff, Deputy, Defendants-Appellants. Carmichell Bell, Plaintiff-Appellant, v. Clackamas County, a political subdivision of the State of Oregon; Clackamas County Sheriff; Jeff Davis, Deputy; Roxanne Cadotte, Deputy; Alan Alderman, Sergeant; Juli Fitzwater, Deputy; Jeff Huva, Deputy; Jeff Grahn, Deputy; Michael Machado, Lieutenant; Pat Detloff, Deputy, Defendants-Appellees. Carmichell Bell, Plaintiff-Appellee, v. Clackamas County, a political subdivision of the State of Oregon; Jeff Davis, Deputy; Roxanne Cadotte, Deputy; Alan Alderman, Sergeant; Juli Fitzwater, Deputy; Jeff Huva, Deputy; Jeff Grahn, Deputy; Michael Machado, Lieutenant, Defendants-Appellants, and Pat Detloff, Deputy, Defendant. Carmichell Bell, Plaintiff-Appellant, v. Clackamas County, a political subdivision of the State of Oregon; Clackamas County Sheriff; Jeff Davis, Deputy; Roxanne Cadotte, Deputy; Alan Alderman, Sergeant; Juli Fitzwater, Deputy; Jeff Huva, Deputy; Jeff Grahn, Deputy; Michael Machado, Lieutenant; Pat Detloff, Deputy, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Edward S. McGlone, III, Clackamas County Counsel, Oregon City, Oregon, for the Defendants-appellants/appellees.
Helen T. Dziuba, Lake Oswego, Oregon, for the Plaintiff-appellee/appellant.
Appeal from the United States District Court for the District of Oregon; John Jelderks, Magistrate, Presiding. D.C. No. CV-99-00327-JE.
Before: Alfred T. Goodwin, Procter Hug, Jr., and Marsha S. Berzon, Circuit Judges.
The opinion filed August 20, 2003, slip op. 11661, is amended as follows:
Delete entire section IV, on page 22, slip op. 11679-11680, and replace with the new section IV:
IV.
Bell also cross-appeals the trial court's reduction of his attorneys' hourly rates from $200 to $175. He argues that the trial court erred in relying on an unpublished decision, Davis v. Wyatt, CV 97-1388-ST (D.Or. Oct. 20, 1998), to award attorney fees here for work performed in 2000 and 2001 at the same rate awarded in that 1998 decision. We agree.
A court awarding attorney fees must look to the prevailing market rates in the relevant community. See Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). We have held that the court has discretion to apply the rates in effect at the time the work was performed, see Barjon v. Dalton, 132 F.3d 496, 502(9th Cir.1997); Schwarz v. Secretary of HHS, 73 F.3d 895, 908-09 (9th Cir.1995). The court may also award rates at an attorney's current rate where appropriate to compensate for the lengthy delay in receiving payment:
Our cases have repeatedly stressed that attorney's fees awarded under this statute are to be based on market rates for the services rendered. Clearly, compensation received several years after the services were rendered — as it frequently is in complex civil rights litigation — is not equivalent to the same dollar amount received reasonably promptly as the legal services are performed, as would normally be the case with private billings. We agree, therefore, that an appropriate adjustment for delay in payment — whether by the application of current rather than historic hourly rates or otherwise — is within the contemplation of the statute.
Missouri v. Jenkins by Agyei, 491 U.S. 274, 284, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989) (internal citations omitted).
We hold, however, that it was an abuse of discretion in this case to apply market rates in effect more than two years before the work was performed. Accordingly, we reverse and remand for the trial court to re-evaluate Bell's request for attorney fees without relying solely on the prevailing rates established in 1998.
We also hold that the trial court did not err in declining to apply a multiplier. Bell failed to meet his burden of proving that an upward adjustment was appropriate. See Blum, 465 U.S. at 898-99, 104 S.Ct. 1541.
Carmichell Bell, the first African-American deputy ever hired by the Clackamas County Sheriff's Office (CCSO), was awarded substantial damages by a jury on his retaliation and discrimination claims under Title VII, and 42 U.S.C. §§ 1981 and 1983. The defendants appeal the judgment; Bell cross-appeals the trial court's reduction of punitive damages and attorney fees.1 We affirm in part, and reverse and remand in part.
Bell worked as a Lake Oswego police officer from February 1, 1996 until December 28, 1997, when he accepted a position at CCSO as a probationary recruit deputy. At that time, he had successfully completed the Oregon Basic Police Course as well as Lake Oswego's Field Training and Evaluation Program (FTEP), which is similar to CCSO's FTEP. Bell had also obtained significant law enforcement training in the Army, where he served in the Military Police. Bell received high scores in Lake Oswego's FTEP for acceptance of feedback, orientation, officer safety, report writing, and radio use. Bell had completed his probationary period with the Lake Oswego Police Department (LOPD) and had been placed on regular status when he resigned to work at CCSO. Lake Oswego's Chief of Police told the jury that Bell would have progressed rapidly at LOPD because of his demonstrated high level of competency.
CCSO increased Bell's entry salary because of his "knowledge, experience and previous compensation." CCSO then placed Bell in its FTEP, which, like Lake Oswego's FTEP, consists of five phases. A recruit's performance is documented for each shift on a Daily Observation Report (DOR), which asks Field Training Officers (FTO) to grade the recruit in 31 performance areas. Scoring is on a one to seven scale, with four being the minimal acceptable score. Recruits are allowed to make mistakes and can successfully complete FTEP with a number of scores below four; scores are monitored only for patterns of substandard performance and are not averaged to determine success. A "not responding to training score" (NRT) is awarded when a recruit, after having received sufficient training, continues to perform unacceptably in a certain area.
Bell completed Phase I and advanced to Phase II, where his FTO was Deputy Layng. Layng recommended advancement and reported that Bell has great "people skills" and communicates well. Bell then advanced to Phase III, where Deputy Jeff Davis, a defendant in this action, was his FTO from March 31, 1998, to May 1, 1998. In addition to making stereotypical comments about the local Russian immigrants, Davis told Bell to look for Asians in Asian cars and pull them over without probable cause because Asians steal Asian cars; he also told Bell to pull over Latinos because they usually do not have insurance and stopping them can result in a "tow or a good ticket." Bell also testified:
Bell told the jury that when Davis saw an interracial couple consisting of a black male and a white female, Davis would ask: "Why do the brothers always get the fat, ugly girls?" Davis further asked Bell why "black men like women with big butts," and whether it was "true that black men have bigger dicks." Davis also bragged about how some deputies have power to get a trainee "washed out of the program." Bell explained that he did not complain about Davis' conduct during Phase III because he wanted to move on in the program and thought he would be finished dealing with inappropriate racial comments after Davis was no longer his FTO.
Davis' DORs for Bell reflected satisfactory to superior scores for acceptance of feedback, report writing, officer safety, investigation, decision-making, police-stops, and orientation. Out of a total of 419 scores, Davis gave Bell only fifteen unacceptable scores. Davis recommended advancement at the close of Phase III, and indicated in his final report that Bell's "significant strengths" were: "Knowledge of criminal, traffic laws, most phases of report writing, investigative skills, ability to get along well with others, taking pride in how he looks at work, positive attitude towards his work." Davis' final report indicated that Bell had no significant weaknesses.
Bell's third FTO was Deputy Roxanne Cadotte, a defendant in this action who trained Bell during Phase IV from May 8, 1998, to May 27, 1998. Sergeant Alan Alderman, also a defendant here, was Bell's Field Training Sergeant (FTS) at this time. On May 10, Cadotte and Bell responded to a hit-and-run accident. Bell contacted a victim's daughter by phone and learned the identity of a potential suspect. Cadotte criticized Bell in that day's DOR for speaking unprofessionally to the victim's daughter. Bell testified that Cadotte told him: "[I]t was very unprofessional..., the way I was talking to the lady on the phone, and she didn't like it when I was talking like a black person."
Bell was originally assigned to Deputy Ken Boell as his FTO for Phase IV, but had been reassigned to Cadotte for unknown reasons. While people were milling around before a shift briefing sometime between May 8 and May 11, Bell watched Sergeant Alderman tease Boell, asking, Alderman also talked "about Deputy Boell having SS tattoos on his arm," and referred to Boell as "Aryan Ken." Bell assumed that...
To continue reading
Request your trial
-
Rangel v. Am. Med. Response W., 1:09-cv-01467-AWI-BAM
...for purposes of both the prima facie case and the showing of pretext." Dawson, supra, 630 F.3d at 937 (citing Bell v. Clackamas County, 341 F.3d 858, 865-66 (9th Cir. 2003)) (emphasis added). The plaintiff in Dawson engaged in a protected activity when he visited his employer's human resour......
-
Heritage Pac. Fin., LLC v. Monroy
...In determining hourly rates, the court must look to the “prevailing market rates in the relevant community.” ( Bell v. Clackamas County (9th Cir.2003) 341 F.3d 858, 868.) The rates of comparable attorneys in the forum district are usually used. (See Gates v. Deukmejian (9th Cir.1992) 987 F.......
-
James v. Group, Case No.: 14-CV-1756-AJB-JMA.
...action] can by itself constitute sufficient circumstantial evidence [for] the prima facie case" (citing Bell v. Clackamas Cnty. , 341 F.3d 858, 865–66 (9th Cir. 2003) )). This inference is supported by evidence of a supervisor stating that "if you're not [James], you don't have anything to ......
-
Funai v. Brownlee
...law is authorized "if there is no legally sufficient basis for a reasonable jury to find in favor of [Plaintiff]." Bell v. Clackamas County, 341 F.3d 858, 865 (9th Cir.2003) (citing Fed.R.Civ.P. 50(a)). The jury verdict will be affirmed if it is supported by substantial evidence. Mockler v.......
-
Deposing & examining the plaintiff
...employment action can by itself constitute sufficient circumstantial evidence of retaliation in some cases.” Bell v. Clackamas County , 341 F.3d 858, 865 (9th Cir. 2003) (finding sufficient evidence to support retaliation claim where low performance reviews immediately followed plaintiff’s ......