# Herridge v. Montgomery County, Texas

> District Court, S.D. Texas · December 10, 2024

URL: https://www.frixlaw.com/law-library/cases/10760585

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** December 10, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

□ 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

fees provision in Section 1988 is to encourage private enforcement of the civil rights statutes,”
while at the same time “protect[ing] defendants from burdensome litigation having no legal or
factual basis.” Doe v. Silsbee Indep. Sch. Dist., 440 F. App’x 421, 424-25 (Sth Cir. 2011) (quoting
Vaughner v. Pulito, 804 F.2d 873, 878 (Sth Cir. 1986)). Section 1988 creates a presumption that
attorney's fees will be granted to a prevailing civil rights plaintiff in all but special circumstances..
The determination of attorneys’ fees is a multi-step process. The Court must first determine
whether the movant is entitled to any award of attorney’s fees. The Court decides whether the
movant is a prevailing party under 42 U.S.C. § 1988(b) and, if so, whether any special
circumstances exist that would render an award of attorney's fees unjust. If no such circumstances
exist, the Court must then determine what constitutes a reasonable and proportional number of
hours spent on the litigation and what a reasonahle hourly rate is for the lawyers involved. La.
Power & Light Co. v. Kellstrom, 50 F.3d 319, 324 (Sth Cir. 1995). The Court must then multiply
the reasonable hours by the reasonable rates to calculate the “base lodestar figure.” Although
“[t]here exists a strong presumption of the reasonableness of the lodestar amount,” the court “may
decrease or enhance the amount based on the relative weights of the twelve factors set forth in
Johnson.” Saizan v. Delta Concrete Prods. Co., 448 F.3d 795, 800 (5th Cir. 2006).
The Johnson factors are important for the Court’s consideration, but no factor is
dispositive. Montgomery v. State Farm Llovds, No. 23-11126, 2024 WL 2369415, at *1 (Sth Cir.
May 23, 2024). The reasonahleness of attorneys' fees is considered in light of the following
guidelines: (1) the time and labor required, (2) the novelty and difficulty of the questions, (3) the
skill requisite to perform the legal service properly, (4) the preclusion of other employment by the
attorney due to aeceptance of the case, (5) the customary fee, (6) whether the fee is fixed or
contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount

involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10)
the “undesirability” of the case, (11) the nature and length of the professional relationship with the
client, and (12) awards in similar cases. Johnson v. Georgia Hwy. Exp.. Inc., 488 F.2d 714, 717—
19 (Sth Cir. 1974); see also Hensley v. Eckerhart, 461 U.S. 424, 430 (1983) (using Johnson factors
as examples of proper considerations in § 1988 attorney’s fees determinations).
Ill. Analysis
As noted above, the final motion remaining before the Court is Plaintiffs Motion for
Attorney’s Fees and Expenses. (Doc. No. 61). The Court finds that Herridge is, alheit narrowly, a
“prevailing party” under § 1988, and the County does not successfully raise any special
circumstances that would render the award of attorney’s fees unjust. The Court also finds,
however, that because Herridge only prevailed on arguments made after the first appeal and before
the motion to reconsider, a reasonable fee award only includes those fees accumulated during that
stage of the litigation.
A. Herridge is, at least in part, a prevailing party under Section 1988.
Section 1988 provides for attorneys’ fees to prevailing parties in civil rights cases: “[i]n
any action or proceeding to enforce a provision of section[ ]... 1983... ofthis title, ... the court,
in its discretion, may allow the prevailing party, other than the United States, a reasonable
attorney's fee as part of the costs... .” 42 U.S.C. § 1988(b). “The touchstone of the prevailing
party inquiry must be the material alteration of the legal relationship of the parties in a manner
which Congress sought to promote in the fee statute.” Tex. State Teachers Ass'n v. Garland Indep.
Sch, Dist., 489 U.S. 782, 792-93 (1989). Significant here, the Supreme Court has emphasized that
“the prevailing party inquiry does not turn on the magnitude of the relief obtained.” Farrar vy.
Hobby, 506 U.S, 103, 114 (1992). The Fifth Circuit further clarified this point, explaining that a

plaintiff is a prevailing party “when actual relief on the merits of the plaintiff's claim materially
alters the legal relationship between the parties by modifying the defendant’s behavior in a way
that directly benefits the plaintiff.” Sanchez v. City of Austin, 774 F.3d 873, 879 (Sth Cir. 2014)
(quoting Lefemine v. Wideman, 568 U.S. 1, 11 (2012)).
The County argues that attorney’s fees should not be awarded because Herridge did not
prevail on his Mone// claim and did not overcome qualified immunity in his claims against
Williams. (Doc. No. 65 at 3-4).* Thus, the County argues, it is improper for Herridge to receive
fees when he did not recover on his claims against either of the named defendants to the suit.
The Fifth Circuit’s opinion in Sanchez is instructive. There, the Plaintiff had heen granted
an injunction but was not awarded the nominal damages that he sought against the named
defendants. /d. at 879. Under the Supreme Court’s reasoning in Lefemine, the Fifth Circuit
concluded that attorney’s fees would be appropriate even if the “injunction merely ordered the
defendants to comply with the law” and no other damages are awarded. /d. (citing Lefemine, 568
at 11). Under Sanchez, the margin by which Plaintiff prevailed is irrelevant when determining
Plaintiff's status as a prevailing party—it is a binary yes or no. Nevertheless, for clarity, there are
three distinct stages to this litigation that need to be factored into the equation.
The case can he considered to have three distinct parts: before and during the appeal, after
the Fifth Circuit’s remand, and after the Motion for Reconsideration. Put simply, Herridge was not
a prevailing party until after the Fifth Circuit remand, and he did not prevail on any arguments
regarding the County’s Motion for Reconsideration. Before this Court the first time, Herridge’s
First Amendment arguments regarding his preaching were rejected, so he appealed. During his

The County raises these arguments under the “special circumstances” exception, addressed below.
As the Court sees these arguments as actually challenging Herridge’s status as a prevailing party, however,
the Court includes these arguments in its analysis here as well.

appellate argument, Herridge substantively addressed leafleting and sign holding for the first time,
so the Fifth Circuit, though affirming the district court’s rejection of the preaching claim, remanded
for this Court to consider the other two issues.
On remand, Herridge then made the arguments that this Court eventually found
meritorious—his rights to hold signs and pass out leaflets. Based on these arguments, Herridge
was awarded an injunction requiring Montgomery County to allow his leafleting and sign holding
in a certain area outside of the concert venue. This injunction altered the legal relationship between
the parties by modifying the County’s behavior in a way that benefitted Herridge—the Court ruled
that the County must guarantee Herridge the ability to leaflet in the designated area. The County’s
prior behavior was augmented in a way that allowed Herridge to engage in some of the activity he
sought. This injunction unquestionably satisfies the standard for Herridge to be a prevailing party.
See Rhodes v. Stewart, 488 U.S. 1, 4 (1988) (per curiam).
After the injunction was entered, however, the County moved for reconsideration, which
Herridge opposed. The County provided the Court with compelling evidence, including videos of
the hazards created by the presence of individuals protesting and leafleting on the street corner in
question at the Pavilion. Thereafter, with the consent of both parties, the Court traveled to the
Pavilion to view the physical location at issue as well as available alternatives. The Court
determined that the corner Herridge sought to utilize posed a significant danger to both pedestrians
and Herridge himself—even if he was only leafleting—and the Court modified the injunction. The
modified injunction gave Herridge the right to hold signs, hand out leaflets, and, for the first time,
preach, but in a different location. The new location allowed all involved a similar, if not greater,
exposure to pedestrian foot traffic without the danger created by the original location’s proximity
to a busy intersection. Thus, while the modified injunction gave Herridge more freedom to preach,

?

the injunction was modified at the behest of the County, not Herridge. Thus, Herridge was not a
prevailing party in that portion of the case.
In sum, Herridge prevailed in only the middle stage of the litigation. Thus, as Herridge is
a prevailing party, albeit narrowly, an award of attorney’s fees will be proper barring any special
circumstances rendering it unjust.
B. Special Circumstances
Having concluded that Herridge is a partially prevailing party, the next issue is whether
certain special circumstances exist that would render the award of fees unjust. Under § 1988, “a
prevailing party should ordinarily recover an attorney's fee unless special circumstances would
render such an award unjust.” Sanchez, 774 F.3d at 879-80 (citing Hensley, 461 U.S. at 429). The
special circumstances exception is a “narrow carve out of the general rule that prevailing civil-
rights plaintiffs should be awarded fees.” /d. at 880. In its opposition to attomey’s fees, the County
argues that several special circumstances exist that negate the necessity of awarding attorney’s
fees.
First, the County argues that Herridge did not establish liability of either named defendant.
In essence, the County argues that fees should not be awarded because the Court did not rule for
Herridge on his Monei// claim and it granted Williams qualified immunity. While both statements
are factually true, these issues go to the question of whether Herridge is a prevailing party or not,’
not whether there is a separate circumstance that renders attorney’s fees unjust. As the Court
analyzed above, an injunction requiring a party to conform to certain constitutional bounds—even
in the absence of liability on a Monel! clatm—is sufficient for a plaintiff to prevail.

3 See supra, note 2.

A prevailing plaintiffs degree of success is not a special circumstance that justifies a
complete denial of § 1988 fees. As stated above, “the degree of the plaintiff's overall success goes
to the reasonableness of the award under Hens/ey, not to the availability of a fee award vel non.”
Tex. State Teachers Ass'n, 489 U.S. at 793; cf City of Riverside v. Rivera, 477 U.S. 561, 574 (1986)
(“We reject the proposition that fee awards under § 1988 should necessarily be proportionate to
the amount of damages a civil rights plaintiff actually recovers.”); Farrar, 506 U.S. at 114
(“Although the ‘technical’ nature of a nominal damages award or any other judgment does not
affect the prevailing party inquiry, it does bear on the propriety of fees awarded under § 1988.
Once civil rights litigation materially alters the legal relationship between the parties, the degree
of the plaintiff's overall success goes to the reasonableness of a fee award . . . .” (internal quotation
marks and citation omitted)).
As a second special circumstance, Defendant argues that the injunction—and therefore
Herridge’s status as a prevailing party—is open to amendment and not yet final. This theory,
regardless of whether it was plausible, is now moot. At the time Defendant filed its response, the
Court was still considering the County’s Motion to Reconsider. Since then, however, the Court
has modified and finalized the injunction. As such, the chance that Herridge’s status as a prevailing
party may change is no longer a valid concern.
The special circumstances that the County relies on to avoid attorney’s fees are, in reality,
prevailing party arguments. The strength and finality of the injunction concern the degree to which
Herridge prevailed, and “a prevailing party’s degree of success is not a special circumstance that
justifies a complete denial of § 1988 fees.” Sanchez, 774 F.3d at 881. Instances that have been
cited as “special circumstances” under § 1988 included cases where a lawsuit was not a
contributing factor to the reformation of a statute, a lawsuit was deemed frivolous and unnecessary

to achieve the desired relief, and lawsuits filed under § 1983 had no public or civil rights impact.
Riddell v. Nat'l Democratic Party, 624 F.2d 539, 544-45 (Sth Cir. 1980); Sanchez, 774 F.3d at
880. Since the County has raised no compelling special circumstances, the Court finds that an
award of attorney’s fees would be proper in this case.
C. Only the fees after the Fifth Circuit’s remand, and before the modified injunction,
are reasonable and proportional.
Since the Court finds that Herridge is a prevailing party under § 1988, at least in part, and
no special circumstances render the award of fees unjust, the Court must determine a reasonable
and proportional lodestar caleulation—a reasonable hourly rate multiplied by the appropriate
number of hours expended. Jason D.W. v. Houston Indep. Sch. Dist., 158 F.3d 205, 208-09 (Sth
Cir. 1998). This step in the attorney’s fees analysis is the appropriate place to consider the degree
of Herridge’s success. For example, if substantial hours have been expended on claims or
arguments that were unsuccessful, it is often unjust to include those hours in the calculation of the
award. Here, the limited scope of Herridge’s actual success in this case will limit the number of
hours included when calculating the proportional and reasonahle award.
First, the Court finds that the hourly fee charged by Herridge’s attorneys is reasonable
considering their experience and performance—the County also does not object to the rate they
charged. Second, the Court finds it appropriate to significantly reduce the number of hours
included in the calculation.’
Herridge was not a prevailing party on any issue (not even on appeal) until affer the remand
from the Fifth Circuit—at which point he presented a winning argument for the first time. As
articulated ahove, the injunction entered after the appeal was the only ground on which Herridge

4 As the Court is reducing the number of hours as an input into the lodestar equation, a full analysis
of the Johnson factors is not warranted. See Saizan, 448 F.3d at 803.
10

prevailed at all and was, importantly, based solely on arguments presented after the Fifth Circuit
remanded the case back to this Court. Consequently, the fees accumulated by Herridge’s counsel,
with one exception discussed below, before the Fifth Circuit’s remand do not qualify as a
“reasonable” award under the analysis modeled in Henisey v. Eckerhart.
In Hensley, the Supreme Court held that “the degree of the plaintiff's overall success goes
to the reasonableness of a fee award.” Hensley, 461 U.S. 424. Indeed, the Court held that this was
the “most critical factor” in determining the reasonableness. /d. at 436. When plaintiff presents “in
one lawsuit distinctly different elaims for relief that are based on different facts and legal theories,”
an attorney’s work on “one claim will be unrelated to his work on another claim.” fd. at 434-35.
Accordingly, “work on an unsuccessful claim cannot be deemed to have been expended in pursuit
of the ultimate result achieved.” Ja at 435 (internal quotation marks removed). The Court also
noted that if a plaintiff has achieved only partial success, the total hourly fees may be excessive
even “where the plaintiff's claims were interrelated, nonfrivolous, and raised in good faith.” /d. at
436. In these situations, “there is no precise rule or formula for making these determinations” and
the “court necessarily has discretion in making this equitable judgment.” /d.
As stated earlier, the facts of this case are unique. This Court ruled against Herridge, and
the Fifth Circuit affirmed. Nevertheless, the Fifth Circuit remanded the case for this Court to
consider Herridge’s leafleting and sign holding argument—the argument on which Herridge
finally prevailed. As such, Herridge’s status as a prevailing party turned on an injunction hased
entirely on arguments presented to the Court affer the Fifth Circuit’s remand. On appeal and after
the remand, Herridge “emphasized difference issues—specifically whether he could pass out
leaflets and/or engage in sign holding presumably at the same southwest corner of the same
intersection.” (Doc. No. 59 at 2).

11

This unique set of circumstances provides the Court with a clear delineation between the
hours that Herridge’s counsel spent on successful arguments and the time counsel spent on
unsuccessful arguments. The Fifth Circuit’s remand was the moment where Herridge’s counsel
began arguing meritorious issues—sign holding and leafleting. As noted above, Herridge was not
a prevailing party as a matter of law until after the Fifth Circuit's remand. Further, it is reasonable
and proportional for the Court to award fees hased solely on the hours spent on arguments or claims
that lead to a plaintiff's status as a prevailing party. Therefore, the Court finds that a reasonable
lodestar calculation cannot include hours that were expended before the Fifth Circuit’s remand.°
Additionally, Herridge’s request for fees accumulated relating to the County’s motion for
reconsideration is denied. Herridge filed his Motion for Attormey’s Fees after the original
injunction was entered, but before the County’s Motion to Reconsider. As such, there was a
significant amount of litigation done after Herridge’s Motion for Attorney’s Fees—Herridge
opposed the motion for reconsideration and any modification of the injunction. (Doc. No. 66).
Eventually, the Court granted the County’s Motion to Reconsider and modified the injunction to
allow Herridge be permitted to preach and hold signs at a completely different location with similar
exposure to pedestrians but less public safety risks. (Doc. No. 83). This location was pinpointed
hy the Court, with the Defendant’s help, once it was determined to be public property.
For the same reasons that the Court does not include pre-Fifth Circuit time in the lodestar
calculation, the Court also will not include the time expended after the initial request for attorney’s
fees. Herridge’s arguments opposing the Motion to Reconsider did not prevail; the Court found
the County’s evidence to be compelling, granted its Motion to Reconsider, and modified the
injunction. Since the hours expended by Herridge’s attorney during the Motion to Reconsider stage
_The Court has made one exception. It has allocated a portion of the fees expended in the
preparation of the complaint in this award.
12

did not result in any successful result, the Court does not find it reasonable or proportion to include
that time in the lodestar calculation.
In sum, the Court finds the following: (1) Herridge is a prevailing party under § 1988; (2)
no special circumstances, as that term is understood in this context, exist that would render an
attomey’s fees award unjust; (3) it is not reasonable or proportional to include attorney’s fees
accumulated before the Fifth Circuit’s remand; and (4) it is likewise not reasonable or proportional
to include attorney’s fees expended relating to the County’s Motion to Reconsider.
The Court will award all fees accumulated after the Fifth Circuit’s opinion released on
April 1, 2022, (Doc. No. 61-1 at 24-29). Further, in Herridge’s Reply, (Doc. No. 67), he puts forth
additional fees that involved the preparation and drafting during the motion to reconsider and
motion for fees stage of the litigation. (Doc. No. 67-1, 67-2). The Court finds the fees relating to
the Motion Requesting Attorney’s Fees to be reasonable but does not include those attributed to
work regarding the Motion to Reconsider. Finally, the Court recognizes that the issues of leafleting
and sign holding were raised in Herridge’s Complaint, so the Court includes certain hours spent
preparing the Complaint. (Doc. No. 61-1 at 3-7).
Based on the analysis above and the timesheets provided by Herridge, the Court’s lodestar
calculation includes Kellum’s hourly rate ($450) multiplied the total number of bours deemed
reasonable and expended in an effort in which Herridge prevailed. (62.1), In total, the Court finds
sum of $27,945.00 to be a reasonable award of attorney's fees and costs to Plaintiff under § 1988.
This includes some fees for legal work drafting the Complaint and all fees occurring after the Fifth
Circuit’s remand to this Court, but it does not include time expended during the motion to
reconsider stage of tbe litigation. The Court totaled these fees based on the timesheets provided by

13

Herridge’s counsel in his motions requesting attorney’s fees, which the Court finds to be
appropriately documented.
{V. Conclusion
Based on the foregoing, the Court hereby GRANTS in part Plaintiff's Motion for
Attorney’s Fees in the amount of $27,945.00, to be paid pursuant to Plaintiff's status as a prevailing
party under 42 U.S.C. § 1988. (Doc. No. 61).

Signed at Houston, Texas, on this the tl? day of December, 2024.

□□□□□□□□□□□□□□□□□□□□□□□□□□□
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10760585. Public record. Not legal advice.