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Corral v. Montgomery County

United States District Court, D. Maryland

March 9, 2015


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For Michael Corral, Plaintiff: John R Garza, LEAD ATTORNEY, Garza Regan and Associates PC, Rockville, MD; Nathan Wesley Kellum, PRO HAC VICE, Center for Religious Expression, Memphis, TN.

For Montgomery County, Isiah Leggett, in his official capacity as County Executive for Montgomery County, D.M. Smith, Officer, Norman W. Brissett, Officer, Defendants: Patricia P Via, LEAD ATTORNEY, Office of the County Attorney for Montgomery, Rockville, MD.

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DEBORAH K. CHASANOW, United States District Judge

Presently pending and ready for resolution in this First Amendment case is a motion for attorneys' fees and costs filed by Plaintiff Michael Corral. (ECF No. 34). The issues have been fully briefed,

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and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, Plaintiff's motion will be granted in part and denied in part.

I. Background

Plaintiff brought claims under 42 U.S.C. § 1983, alleging violations of the First Amendment and the Due Process Clause of the Fourteenth Amendment against Defendants Montgomery County, Isiah Leggett, D.M. Smith, and Norman W. Brissett. Plaintiff alleged that on March 23, 2012, he was exercising his First Amendment speech rights on a sidewalk corner in Downtown Silver Spring when he was unjustifiably removed and issued a trespass notice by Montgomery County police officers Smith and Brissett. A private security guard apparently requested that Plaintiff vacate what the security guard believed was private property. Plaintiff alleged that the sidewalk was a traditional public forum and, consequently, he was ejected for an impermissible reason. In a complaint filed on February 8, 2013, he alleged that Montgomery County has a policy and practice of permitting a private entity to banish expression on the sidewalks of Downtown Silver Spring. Plaintiff argued that this policy and practice violated his First Amendment rights both on its face and as applied to Plaintiff. Further, Plaintiff claimed the policy violates the Due Process Clause as it is vague and lacks sufficient objective standards to curtail the discretion of officials. He requested entry of a judgment and decree that the policy is unconstitutional both on its face and as applied; a permanent injunction barring the County and other Defendants from enforcing the policy; an award of nominal damages; and attorneys' fees and costs in accordance with 42 U.S.C. § 1988. (ECF No. 9).

On February 14, 2013, he moved for a preliminary injunction to prevent the County from " applying its policy and practice of banning expression on sidewalks alongside the public streets in Downtown Silver Spring." (ECF No. 5, at 1). On May 31, 2013, the court denied Plaintiff's motion, concluding that he had not established that he was suffering actual, imminent, and irreparable harm because the trespass notice had been vacated and Plaintiff was not precluded from expressing himself in the public forum. Corral v. Montgomery Cnty., No. DKC 13-444, 2013 WL 2420454 (D.Md. May 31, 2013). Two motions to dismiss or, in the alternative, for summary judgment were filed: one by the County and Leggett, the other by Brissett and Smith. Plaintiff opposed each, and there were replies.

On March 5, 2014, by memorandum opinion and order, the court granted in part and denied in part both motions. Corral v. Montgomery Cnty., 4 F.Supp.3d 739 (D.Md. 2014). Judgment was granted in favor of Leggett, Brissett, and Smith for all claims brought against them in their official capacities, as those claims were redundant given that Plaintiff had also sued the County for the exact same alleged wrongs. In regard to the other claims, it was necessary first to determine whether there was a genuine dispute that Plaintiff's First Amendment rights had been infringed. The parties agreed that the sidewalk at issue qualified as a " traditional public forum" and as such, content-based regulations were subject to strict scrutiny. Defendants argued that Plaintiff was ejected based on his impeding of sidewalk traffic, which would be a permissible content-neutral, time, place, and manner restriction. The court found, however, that, based on the evidence, there was a genuine dispute as to whether the security guard was motivated by his perception that the sidewalk was private property for

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which he could eject unwanted visitors which led him to ask the police to assist in excluding Plaintiff. Furthermore, there was evidence that the police relied solely on the security guard's request, which would constitute a content-based " heckler's veto."

Finding there was a dispute as to whether Plaintiff's First Amendment rights were violated, liability against the County for the actions of its officers would lie only if Plaintiff could show there was a genuine dispute that the officer's actions arose from an official policy or custom. The court found that the County's lease with the private developer of Downtown Silver Spring, effectively allowing a private interest to regulate First Amendment interests for private reasons, could constitute a policy of abdicating responsibly for protecting First Amendment rights in the public forum without sufficient safeguards in place. Accordingly, summary judgment to the County was denied.

Finally, Plaintiff brought claims against Brissett and Smith in their personal capacities. Both argued they were entitled to qualified immunity. Employing the two-prong Saucier test, the court first determined that Plaintiff had presented sufficient evidence such that a reasonable factfinder could find that the officers violated his First Amendment rights. The second prong asks whether the right violated was clearly established at the time of the deprivation such that a reasonable official would understand that their conduct was unlawful. The allegedly clearly established right was whether a reasonable officer in the position of Brissett and Smith would have known that the sidewalk was a traditional public forum. The court found that there was a genuine dispute as to whether a reasonable officer would have known that the sidewalk was a traditional public forum given that the sidewalk is adjacent to two public thoroughfares; it is indistinguishable from other public sidewalks and is integrated into the street grid; the County maintained an easement and right of passage as a space for public enjoyment; and the sidewalk has historically been a traditional public forum. Smith and Brissett had not established that they were entitled to qualified immunity at this stage of the proceedings, and the claims against them in their individual capacities were permitted to proceed, along with the claims against the County.

The parties subsequently filed a consent motion and judgment which was approved by the court on April 28, 2014:

1. This Court hereby declares that Plaintiff Michael Corral was unconstitutionally banned from expressing his religious viewpoints at the intersection of Fenton Street and Ellsworth Drive on March 23, 2012.
2. Defendant Montgomery County shall pay Plaintiff the amount of $1.00 as nominal damages.
3. Defendant Montgomery County shall also pay taxable costs, plus reasonable attorney fees and allowable expenses to Plaintiff's attorneys in an amount to be determined by the Court upon motion.
4. The Court retains jurisdiction of this case solely to enforce the terms of this consent order and judgment.

( ECF No. 30). Plaintiff dismissed with prejudice his claims against Brissett and Smith. (ECF Nos. 31-33). Plaintiff filed a motion for attorneys' fees on May 7, 2014, requesting $106,221 in attorneys' fees and $2,636.43 in costs. (ECF No. 36). On June 23, 2014, Defendant Montgomery County filed an opposition (ECF No. 37), to which Plaintiff replied on July 2, 2014, wherein he requested an additional $13,050

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in attorneys' fees incurred in preparing the reply (ECF No. 38).[1]

II. Analysis

A. Plaintiff is entitled to attorneys' fees

Under 42 U.S.C. § 1988, " the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs." " The purpose of [Section] 1988 is to ensure effective access to the judicial process" for persons with civil rights grievances. Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (quotation marks and citation omitted). " Congress enacted [Section] 1988 specifically because it found that the private market for legal services failed to provide many victims of civil rights violations with effective access to the judicial process." City of Riverside v. Rivera, 477 U.S. 561, 576, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986) (citations omitted). Congress attributed this market failure in part to the fact that " [t]hese victims ordinarily cannot afford to purchase legal services at the rates set by the private market." Id. (citations omitted). " The first determination to be made by the district court is whether the plaintiff is a prevailing party. The second determination is whether an award of attorney's fees should be granted to the prevailing party and what amount would be reasonable under the specific circumstances of the case." Feldman v. Pro Football, Inc., 806 F.Supp.2d 845, 847 (D.Md. 2011).

The Supreme Court of the United States noted that " [a] typical formulation is that plaintiffs may be considered 'prevailing parties' for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Hensley, 461 U.S. at 433 ( quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978) (quotation marks omitted)); see also Tex. State Teachers Ass'n v. Garland Independent School Dist., 489 U.S. 782, 792, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989) (" at a minimum, to be considered a prevailing party within the meaning of [Section] 1988, the plaintiff must be able to point to a resolution of the dispute which changes the legal relationship between itself and the defendant." ). In addition to judgments on the merits, settlement agreements enforced through a consent decree may serve as the basis for an award of attorneys' fees because it is a court-ordered change in the legal relationship between the plaintiff and the defendant. Buckhannon Bd. and Care Home, Inc. v. W.Va. Dep't of Health and Human Res., 532 U.S. 598, 604, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) ( citing Maher v. Gagne, 448 U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d 653, (1980); quoting Tex. State Teachers, 489 U.S. at 792).

Defendant acknowledges that Plaintiff is the prevailing party, but contends that this fact alone does not entitle Plaintiff to attorneys' fees. Indeed, a prevailing party is only " eligible for, rather than entitled to, an award of attorney's fees. Although [Plaintiff] is a prevailing party, the district court has discretion to determine what constitutes a reasonable fee, a determination that requires the court to consider the extent of the plaintiff's success." Mercer v. Duke Univ., 401 F.3d 199, 203 (4th Cir. 2005). Defendant contends that the receipt of only nominal damages signifies that Plaintiff's success

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was technical or de minimis, and therefore he is not entitled to any fees.

In determining whether attorneys' fees are warranted in a nominal damages case, the United States Court of Appeals for the Fourth Circuit has utilized the three factors outlined by Justice O'Connor in her concurrence in Farrar v. Hobby, 506 U.S. 103, 122, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992): " the extent of relief, the significance of the legal issue on which the plaintiff prevailed, and the public purpose served" by the litigation. Mercer, 401 F.3d at 204 (" We believe that the factors set forth by Justice O'Connor help separate the usual nominal-damage case, which warrants no fee award, from the unusual case that does warrant an award of attorney's fees." ) ( quoting Farrar, 506 U.S. at 122 (O'Connor, J., concurring)).

" When considering the extent of the relief obtained, [the court] must compare the amount of the damages sought to the amount awarded." Mercer, 401 F.3d at 204. The plaintiff's purpose in bringing the lawsuit is relevant only to the extent that it distinguishes an action seeking monetary relief from one seeking injunctive or declaratory relief. " If a case sought injunctive relief, the relevant comparison, of course, would be the scope of the injunctive relief sought to the relief actually granted." Id. at 205.

In his amended complaint, Plaintiff brought two claims. First, he alleged that Defendants' policy and practice that allows a private entity to banish expression on the sidewalks of Downtown Silver Spring and bans religious speech violates the First Amendment. Second, Plaintiff argued that Defendants' policies violate the Due Process Clause because they are vague and lack sufficient objective standards to curtail the discretion of officials. Plaintiff sought primarily injunctive and declaratory relief, specifically: (1) a judgment and decree that the County's policy and practice of permitting a private entity to control expression on public sidewalks in Downtown Silver Spring is unconstitutional on its face and as applied violates the First Amendment; (2) a judgment and decree that the County's ban on religious expression on public sidewalks in Downtown Silver Spring is unconstitutional on its face and as applied because it violates the First Amendment; (3) a preliminary and permanent injunction enjoining Defendants and their agents and employees from applying these two allegedly unconstitutional policies; (4) adjudication and declaration of the rights and other legal relations with the subject matter in controversy; (5) an award of nominal damages from the acts of the Defendants as vindication of his constitutional rights; and (6) attorneys' fees. (ECF No. 9, at 22-23).

Defendant argues that Plaintiff asked for a lot and got very little. He asked for a preliminary injunction, which was denied as Plaintiff's First Amendment rights currently were not being denied, and were unlikely to be denied in the future. Plaintiff's trespass notice had been vacated, and a letter from the County Attorney following the commencement of the lawsuit informed Plaintiff that he was not precluded from expressing himself in the public forum. (ECF No. 6-3). Plaintiff received no relief of any kind on his Due Process claim and no injunctive relief on his First Amendment claim; the consent order only declared that Plaintiff's First Amendment rights were violated on March 23, 2012, with no finding that there was any unconstitutional policy or practice. His only relief ...

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