Grisham v. City of Fort Worth

• Decision Date: 19 September 2016
• Docket Number: No. 15–10960,15–10960
• Citation: 837 F.3d 564
• Parties: David Grisham, Plaintiff–Appellant v. City of Fort Worth, Texas ; Jeffrey Halstead, in his official capacity as Chief of Police for the Fort Worth Police Department, Defendants–Appellees
• Court: U.S. Court of Appeals — Fifth Circuit

837 F.3d 564

David Grisham, Plaintiff–Appellant

v.City of Fort Worth, Texas ; Jeffrey Halstead, in his official capacity as Chief of Police for the Fort Worth Police Department, Defendants–Appellees

No. 15–10960

United States Court of Appeals, Fifth Circuit.

FILED September 19, 2016

Nathan W. Kellum, Center for Religious Expression, Memphis, TN, James A. Pikl, Trial Attorney, Scheef & Stone, L.L.P., Frisco, TX, for Plaintiff–Appellant.

Laetitia Coleman Brown, Attorney, City Attorney's Office for the City of Fort Worth, Fort Worth, TX, for Defendants–Appellees.

Before SMITH, BARKSDALE, and COSTA, Circuit Judges.

GREGG COSTA

, Circuit Judge:

David Grisham sued the City of Fort Worth alleging a denial of his First Amendment right to hand out religious literature at a public festival. Grisham and the City entered into a consent decree in which the City agreed to pay him a dollar in nominal damages. Among other provisions, that decree also prohibits the City from interfering with the free speech rights of Grisham or other individuals at future public events in downtown Fort Worth.

Left unresolved was the question of attorney's fees. So Grisham filed an opposed motion for fees, which the district court denied. It did so based on its belief that other than the award of nominal damages, nothing in the consent order changed the legal relationship between the parties (the court alternatively denied fees on the ground that the request was unreasonable).

Because a plaintiff is a prevailing party when nominal damages are awarded, and this case does not present the special circumstances in which a prevailing civil rights plaintiff may be denied fees altogether, we vacate the order denying fees and remand for an assessment of the reasonableness of the fee request.

I.

Grisham is an evangelical Christian who distributes religious literature, typically Gospel tracts, at public events. One such event was the 2014 Tarrant County Gay Pride Week Association Festival. This free and public festival took place in General Worth Square in downtown Fort Worth pursuant to a permit.

Grisham's wife and daughter, who often work with him, entered the part of the square where the festival was taking place and passed out Gospel tracts. Grisham was doing the same in a separate part of the square away from the festival. According to the complaint Grisham later filed in federal court, officers with the Fort Worth Police Department told his wife and daughter, under threat of arrest, that they must leave the park and physically escorted them to the sidewalk across the street. Once they had crossed the street, another officer approached them and reiterated that they were not to cross the street to reenter the festival. Grisham noticed the officer talking to his family and intervened.

Grisham alleges that the following discussions ensued. He told the officer that he and his family were allowed to share their views on public property during a public event, and that while they would agree not to enter the festival, they wanted to pass out literature on the sidewalk adjacent to it. The officer maintained that the family must stay across the street, insisting that this restriction was for the safety of the Grisham family and because festival organizers had a permit that allowed them to close off the area. After further discussion, the officer brought over a festival organizer who told Grisham that he had a permit for the event and Grisham was not welcome. The officer then issued Grisham a trespass warning, telling him that if he crossed the street and reentered the square or adjoining sidewalk, he would be arrested. Fearing arrest, Grisham followed the command.

Grisham filed this lawsuit against the City of Fort Worth, its police chief, and the officer who instructed him not to return to the festival. The complaint alleges free speech and due process violations. It seeks nominal damages, a declaration recognizing that the City and officer violated Grisham's constitutional rights, an injunction prohibiting the City and its police department from violating these rights—both his and others' in the community—in the future, and reasonable costs and attorney's fees. The court dismissed the claims against the individual officer based on qualified immunity.

The City and police chief reached a settlement with Grisham, and the court issued a consent order and final judgment accepting their agreement. The consent decree states in relevant part:

1. The City must allow the constitutionally-protected expression of David Grisham and other speakers on public sidewalks and streets, in downtown Fort Worth, Texas during an event that is free and open to the public within the limits of federal, state, and local law. Defendant City agrees to notify permittees of an outdoor event on public property that speakers will be allowed to exercise constitutionally-protected expression at any event that is free and open to the public.

2. Defendants will not enforce a policy or act in any other manner that would unlawfully ban or interfere with constitutionally-protected expression of David Grisham or other third-party speakers on public sidewalks and streets in downtown Fort Worth, Texas during public events.

3. Nothing in this consent order and final judgment prevents the City from enforcing reasonable, time, place and manner restrictions as allowed by law.

4. Defendants shall pay Plaintiff the amount of $1.00 as nominal damages.

5. Plaintiff shall file application for attorney's fees under 42 U.S.C. § 1988

within 14 days after entry of this Order and Final Judgment.

That brings us to the subject of this appeal: attorney's fees. Grisham filed the fee request contemplated by the consent decree, requesting $79,074.36 in attorney's fees and non-taxable expenses along with verified time sheets and affidavits addressing the reasonableness of hours billed. The City opposed the motion, arguing that Grisham was not a prevailing party. The district court denied all fees and expenses, reasoning that although “plaintiff gained a technical victory by receiving a recovery of $1.00 as nominal damages, with the consequence that he is to be viewed as a ‘prevailing party’ under § 1988

, the court has concluded that a proper exercise of its § 1988 discretion would be to deny plaintiff's motion.” The district court alternatively ruled that it could deny fees based on “the unreasonableness of the request,” as some of the time billed appeared excessive for the work performed.

II.

The district court thus found two reasons not to award Grisham any attorney's fees even though the consent decree ordered him to file a fee application. We review that denial for abuse of discretion, but “the discretion afforded district courts to deny attorney's fees to prevailing plaintiffs under § 1988

is exceedingly narrow.” Sanchez v. City of Austin , 774 F.3d 873, 878 (5th Cir. 2014) (quoting Cruz v. Hauck , 762 F.2d 1230, 1233 (5th Cir. 1985) ). A district court abuses this discretion if it applies an “erroneous interpretation of [ ] special circumstances” to justify denial of fees to an otherwise prevailing party. Id.

(quoting Pruett v. Harris Cty. Bail Bond Bd. , 499 F.3d 403, 417 (5th Cir. 2007) ). Factual determinations underlying the denial of fees are reviewed for clear error; legal conclusions, including whether a party is “prevailing” under section 1988, are reviewed de novo. Id.

The “touchstone” of the prevailing party analysis is whether there has been “a material alteration of the legal relationship” between the parties. Tex. State Teachers Ass'n v. Garland Indep. Sch. Dist. , 489 U.S. 782, 792, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989)

. A “material alteration” results when there is a “judgment for damages in any amount, whether compensatory or nominal,” because even a nominal award “forc[es] the defendant to pay an amount he otherwise would not pay.” Farrar v. Hobby , 506 U.S. 103, 113, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). Such a change in the parties' relationship can be effectuated through an enforceable judgment or, as in this case, a consent decree or settlement. Id. ; see also

Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res. , 532 U.S. 598, 604, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). The district court thus correctly recognized that Grisham is a prevailing party because he obtained an award of nominal damages in the consent decree. Farrar , 506 U.S. at 112, 113 S.Ct. 566. (“[A] plaintiff who wins nominal damages is a prevailing party under § 1988.”).

Despite recognizing Grisham's status as a prevailing party, the district court continued to apply the “material alteration of the legal relationship” standard in determining that no fees should be awarded. It found that the “technical $1.00 nominal damage award constituted such an insignificant change in the relationship between plaintiff and defendant that this court is unwilling to exercise its discretion to award attorney's fees.” This was error. As we recently explained, a “prevailing plaintiff's degree of success is not a special circumstance that justifies a complete denial of § 1988

fees.” Sanchez , 774 F.3d at 881 ; see also

Pruett , 499 F.3d at 418 (explaining that the “standard for partial success [is] a different standard than the ‘special circumstances' that occasionally allow a defendant to avoid attorneys' fees altogether”). Instead, the degree of success (or in the terms used by the district court, the significance of the change in the parties' relationship) is a factor—often an important one—to consider in assessing the reasonableness of the fee request. Sanchez , 774 F.3d at 881 (citing Tex. State Teachers Ass'n , 489 U.S. at 793, 109 S.Ct. 1486 ).

Although degree of success is not a basis for a full denial of fees, certain “special circumstances” may support denying fees altogether. Id. at 880

. Because the district court focused its assessment on the significance of the relief obtained, it did not explore cases in which these...