Herridge v. Montgomery Cnty.
| Decision Date | 20 April 2021 |
| Docket Number | CIVIL ACTION NO. 4:19-CV-4259 |
| Parties | JOSHUA HERRIDGE, Plaintiff, v. MONTGOMERY COUNTY, TEXAS, et al, Defendants. |
| Court | U.S. District Court — Southern District of Texas |
Pending before the Court are dueling summary judgment motions. Montgomery County (the "County") and Jimmy Williams (collectively the "Defendants") have moved for summary judgment (Doc. No. 34) and the plaintiff Joshua Herridge ("Herridge") has responded (Doc. No. 39). In addition, Herridge has moved for summary judgment (Doc. No. 35), the Defendants have responded (Doc. No. 38), and Herridge replied (Doc. No. 40). After considering the motions, briefing, summary judgment evidence, and applicable law, the Court grants the Defendants' motion and denies the Plaintiff's motion.
The following facts are undisputed unless otherwise noted. Joshua Herridge is a pastor at the Pentecostal Lighthouse church in Livingston, Texas. (Doc. No. 34, Ex. 1 at 1). He identifies as "a Christian who is compelled to go out in public and tell others about the merits of his religious beliefs." (Doc. No. 1 at 3; see also Doc. No. 35, Ex. 1 at 4). According to his complaint, Herridge "maximize[s] his evangelistic opportunities" by travelling to "public areas near well-attended events," such as public events and music concerts (Doc. No. 1 at 3). At issue in this case is Herridge's ability to stand on a specific sidewalk and grassy hill close to an intersection near the entrance of the Cynthia Woods Mitchell Pavilion (the "Pavilion") in The Woodlands, Texas.1 (Id. at 4).
In May 2019, the Pavilion hosted a ZZ Top concert outside of which Herridge intended to preach at least in part because "[t]here's much sin that goes on there." (Doc. No. 34, Ex. 3 at 24). Herridge wanted to stand at the southwest corner of the intersection of Lake Robbins Drive and Six Pines Drive in front of a sign for the Pavilion near its entrance. According to Herridge, that location "would be an ideal spot because he could share his message without getting in anyone's way." (Doc. No. 1 at 5).
When he arrived, Herridge notified officers of his plans to stand and pass out literature on the sidewalk and surrounding areas of the intersection, and an unidentified officer told Herridge that he could not. Herridge asserts that the reason he was given was that the property was privately owned. The supervising officer, Jimmy Williams ("Williams"), was then called to speak to Herridge.2 Herridge took video of his interaction with Williams that has been submitted as summary judgment evidence and reviewed by the Court. (See Doc. No. 34, Ex. 4; Doc. No. 37). Williams presented himself as a police officer, wore a polo shirt with the word "POLICE" on it, and carried a radio and firearm. Williams asked Herridge to move across the street. First, Herridge asked Williams whether the property was publicly or privately owned and Williams informed Herridge that the township of The Woodlands and the Pavilion jointly owned the property. Herridge offered to move down the sidewalk closer to the Pavilion, but Williams informedHerridge that he could not because then Herridge would be on property owned exclusively by the Pavilion (no party has submitted evidence on whether that statement was true).
Williams directed Herridge to go across the street to the northeast corner of the intersection to convey his religious message. The dispute was clearly over the location of Herridge's preaching and not the fact that he was preaching or the content of his message. Herridge told Williams that it was "not right" and "illegal" for Williams to not let him preach. Williams told Herridge that Herridge was "obstructing a law enforcement operation" and insisted that Herridge move. Herridge was dissatisfied with this alternative location because he felt that he could reach more people with his message in front of the Pavilion than across the street.
After more unsuccessful arguing and debating, Herridge asked Williams if he would be cited or arrested if he did not leave the southwest corner. Williams did not directly answer that question but did respond, and expressed concern for public safety regarding the crowds of pedestrians and vehicular traffic at the intersection. Williams then asked Herridge to "cooperate" and go across the street; Herridge responded that "if you'll give me the lawful order to leave, I'll walk away." Williams finally said, When Herridge then asked for Williams's name, Williams gave it and then reiterated that As Herridge walked away he said, "I'll deal with it later then." Herridge then continued preaching from the northeast corner of the intersection but left after 20 minutes because he found that location "futile."
In June 2019, Herridge's attorney sent a letter to the County claiming that the County's "banishment of Herridge from the public sidewalks on the border of Lake Robbins Drive and the Pavilion violates his constitutional rights." (Doc. No. 35, Ex. 1 at 26). The County responded that it did not believe Williams had violated Herridge's rights and informed Herridge's attorney that "the area circled in red [see below] is where the pedestrian traffic merges from the two primary parking locations, and it has been the policy of the officers to never allow any person to gather there because they will obstruct the pathway or slow the movement of pedestrians." (Doc. No. 34, Ex. 5 at 2). The County attached the following image, which both parties have referenced in their briefing and agree is an accurate portrayal of the intersection:
Image materials not available for display.
(Id. at 4). The County further stated:
(Id. at 2-3). This statement generally encompasses what Herridge refers to as the County's "organized activities" policy (the "Policy"). Herridge's attorney replied that Herridge only wanted to "hand out literature and display a sign" in the red-circled area, which he contended "cannot possibly cause obstruction." (Doc. No. 35, Ex. 1 at 31). Nevertheless, the County insisted that "allowing anybody to set up on that side of the street where the Pavilion is during an event constitutes a risk to public safety" and informed Herridge's attorney that "if Mr. Herridge attempts to conduct activities from the area he was asked to move from on May 18, 2019 again during an event, he will again be asked to move back across the street." (Id. at 33).
In October 2019, Herridge filed this lawsuit against the County and Williams, in both his individual and official capacities. (Doc. No. 1 at 1-3). The complaint alleges violations of Herridge's First Amendment right to freedom of speech and his due process rights under the Fourteenth Amendment.3 (Id. at 9-11). The cause of action is under 42 U.S.C. § 1983. (Id. at 1). Herridge seeks: (1) a declaratory judgment that the Defendants' actions and the Policy are unconstitutional; (2) a preliminary and permanent injunction against Defendants from applying or enforcing the Policy, including against Herridge; (3) $1 in nominal damages; and (4) attorney's fees and costs under 42 U.S.C. § 1988. (Id. at 11-12).
Previously, this Court denied Herridge's motion for a preliminary injunction, denied the Defendants' motion to dismiss for lack of standing, and granted Herridge's motion to strike the Defendants' jury demand. (See Doc. No. 31). Further, in hopes that a neutral party could facilitatea quick and amiable solution, the Court ordered the parties attend a mediation before the magistrate judge. (See Doc. No. 22). The parties attended mediation before Judge Stacy, but failed to reach a settlement. Now, apparently agreeing on all material facts, both parties have moved for summary judgment.
Summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "The movant bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact." Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 261 (5th Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)). Once a movant submits a properly supported motion, the burden shifts to the non-movant to show that the Court should not grant the motion. Celotex, 477 U.S. at 321-25. The non-movant then must provide specific facts showing that there is a genuine dispute. Id. at 324; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A dispute about a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court must draw all reasonable inferences in the light most favorable to the nonmoving party in deciding a summary judgment motion. Id. at 255. The key question on summary judgment is whether there is evidence raising an issue of material fact upon which a hypothetical, reasonable factfinder could find in favor of the nonmoving party. Id. at 248.
The summary judgment evidence was helpful to the Court in focusing on the factual background and...
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