Herridge v. Montgomery County, Texas

District Court, S.D. Texas·Decided December 10, 2024·No. 4:19-cv-04259·Unknown

Opinion

□ Southern District of Texas ENTERED IN THE UNITED STATES DISTRICT COURT December 10, 2424 FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, □□ HOUSTON DIVISION JOSHUA HERRIDGE, § § Plaintiff, § VS. § CIVIL ACTION NO. 4:19-cv-04259 § MONTGOMERY COUNTY, TEXAS, and § JIMMY WILLIAMS, § § Defendants. § § ORDER Pending before the Court is a Motion for Attorney’s Fees and Expenses under 42 U.S.C, § 1988 filed by Plaintiff Joshua Herridge (“Plaintiff” or “Herridge”). (Doc. No. 61). Defendant Montgomery County (“Defendant,” or “the County”) filed a Response in Opposition, (Doc. No. 65), and Plaintiff replied. (Doc. No. 67). After considering the arguments of the parties, relevant law, and evidence, the Court GRANTS in part and DENIES in part Plaintiff's Motion for Attomey’s Fees and Expenses. I. Background This case involves the enforcement of an “unwritten policy” that was allegedly applied against Herridge, a minister, when he attempted to exercise his First Amendment rights outside the Cynthia Woods Mitchell Pavilion (“the Pavilion”) in the Woodlands, Texas. The policy prevented him from preaching, displaying signs, and passing out leaflets at a specific, high-traffic corner (Lake Robbins Drive and Six Pines Drive) when large-scale events are being held at the Pavilion.' Herridge sought to preach at this specific location because of the greater visibility and

The Pavilion ts primarily a performance venue for musical groups. While the Pavilion itself is jointly owned by the township of the Woodlands and the Cynthia Woods Mitchel! Pavilion, portions of the sidewalk and grassy curtilage at issue here are public property.

foot traffic, allowing him to share his message with more people at that corner than other locations or corners near the Pavilion. For the very same reasons—high traffic and the large number of people in a small, crowded area—law enforcement officers found that location to be a dangerous corner for Herridge to preach. The County provided an alternative location directly across the street, but Herridge found this location unacceptable because it was passed by fewer concertgoers. Since a resolution could not be reached, Herridge filed this lawsuit. The Court addressed the issue of preaching/protesting on this congested corner and granted summary judgment in favor of the County, finding no First Amendment violation because the Defendants had very real and pertinent safety concerns. The Court based its decision solely on Herridge’s preaching because that was the focus of his arguments at the time. On appeal, Herridge apparently argued not only against this Court’s Order but for the first time emphasized different issues—whether he could pass out leaflets or engage in sign holding at the same corner of the same intersection. The Fifth Circuit affirmed this Court’s ruling concerning preaching, but it then noted that Herridge had not adequately raised the issue of signage or leafleting before this Court. It remanded the case for further consideration of these points. See Herridge v. Monigomery Cnty., Tex., No. 21-20264, 2022 WL 989421 (Sth Cir. Apr. 1, 2022). On remand, this Court determined that while the County had demonstrated a significant public interest in public safety and crowd control, the policy preventing Herridge from leafleting and sign holding was not narrowly tailored to tbe interest of public safety. The Court reasoned that, because the County had not demonstrated that leafleting and sign holding was “just as problematic” as preaching, it did not necessarily merit an identical restriction. The Court entered an order enjoining the policy against Herridge to the extent that he, or anyone else similarly situated, was merely passing out pamphlets or displaying signs at the southwest corner of the

intersection at Lake Robbins Drive and Six Pines Drive. The Court noted at that time that “if [Herridge’s] presence (or that of any others) proves problematic and the Defendant tailor[s] a policy (as opposed to the blanket prohibition it proposed here) to fit the situation, that might present this Court with a different picture.” (Doc. No. 58 at 8). Subsequently, the County filed a Motion for Reconsideration (Doc. No. 64) and a Supplemental Motion for Reconsideration (Doc. No. 72) seeking dissolution, or at least modification, of the injunction because “the effect of the injunction . . . severely restricts . . . [the] ability to secure the venue and keep concertgoers safe.” (Doc. No. 72 at 2). This Motion for Reconsideration—and the evidence that accompanied it—led the Court to amend the injunction to allow Herridge, and all those similarly situated, to exercise their First Amendment rights in a different area that does not pose the same dangers to pedestrians and protesters due to its distance from the significant automobile traffic. As amended, the injunction not only allows Herridge to hand out leaflets and hold signs but also to preach, not on the street corner he desired, but in a designated zone with higher foot traffic that would not present the same level of danger. Following the resolution of the injunction, Herridge filed a Motion for Attorncy’s Fees and Expenses. (Doc. No. 61). The County filed a Response in Opposition to Attorney’s Fees, (Doc. No. 65), and Herridge replied. (Doe. No. 67). I. Legal Standard A prevailing party may move for an award of attorneys’ fees after the entry of a final judgment. FED. R. CIV. P. 54(d). The motion must specify the grounds entitling the movant to attorneys’ fees and the amount requested. FED. R. CIV. P. 54(d)(2)(B). 42 U.S.C. § 1988 provides that “the court, in its discretion, may allow the prevailing party [in a § 1983 action] ...a reasonable attorney's fee as part of the costs.” 42 U.S.C. § 1988(h). “The primary purpose of the attorney's

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