Griffin v. Bryant , 677 F. App'x 458 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 27, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
WILLIAM N. GRIFFIN,
Plaintiff - Appellant,
v. No. 16-2164
(D.C. No. 2:13-CV-00799-JB-GBW)
DANIEL A. BRYANT, individually and in (D. N.M.)
his capacity as attorney for the Village of
Ruidoso; DANIEL A. BRYANT, PC,
a New Mexico professional corporation;
GUS R. ALBORN, individually and in his
capacity as Mayor for the Village of
Ruidoso; DEBI LEE, individually and in
her capacity as Manager of the Village of
Ruidoso; IRMA DEVINE, individually and
in her capacity as Clerk for the Village of
Ruidoso; VILLAGE OF RUIDOSO,
a municipal corporation,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, McHUGH, and MORITZ, Circuit Judges.
_________________________________
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
William N. Griffin, an attorney representing himself pro se, filed a complaint
under 42 U.S.C. § 1983 alleging that the defendants violated his First Amendment
rights. He sought damages as well as declaratory and injunctive relief. His claims
arose out of his three requests to be placed on the Village of Ruidoso Village
Council1 meeting agenda to discuss his belief that a permit issued by the Village of
Ruidoso was not in compliance with Federal Emergency Management Agency
regulations. Although Mr. Griffin was not placed on the meeting agenda, he did have
the opportunity to address the Council during the “Public Input” portion of the
Council meetings. On four occasions, he did speak during the Public Input portion of
the Council meetings.
The district court granted summary judgment in favor of the defendants on
almost all of Mr. Griffin’s claims.2 Mr. Griffin now appeals. Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm.
I. Discussion
1
The “Village Council” is also identified as the “Governing Body” or
“Council” in the materials submitted to the district court. We will use these terms
interchangeably in this decision.
2
The district court denied summary judgment on Mr. Griffin’s claims for
declaratory and injunctive relief related to a restriction in the applicable Village of
Ruidoso Village Council Resolution’s guidelines for the Public Input portion of the
Council meeting. The restriction at issue stated that during the Public Input portion
of the meeting, “no negative mention will be made of any Village personnel, staff or
the governing body.” Aplt. App., Vol. I at 28 (internal quotation marks omitted).
The district court declared that restriction unconstitutional and enjoined further
enforcement of it. The defendants have not appealed from the district court’s
decision granting this relief.
2
The parties are familiar with the facts and we will not repeat them here, except
as relevant to our analysis. We review de novo the district court’s grant of summary
judgment, applying the same legal standard as the district court. Shero v. City of
Grove, 510 F.3d 1196, 1200 (10th Cir. 2007). Summary judgment is appropriate
“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).
Initially, we note that Mr. Griffin asserts, for the first time on appeal, that the
district court erred in granting summary judgment without the benefit of discovery.
This argument is forfeited because Mr. Griffin failed to raise it before the district
court.3 See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127-28 (10th Cir. 2011).
Although we may entertain forfeited theories on appeal, we will only do so “if the
appellant can satisfy the elements of the plain error standard of review.” Id. at 1130.
Here, however, Mr. Griffin has not even attempted to argue plain error. “And the
failure to do so—the failure to argue for plain error and its application on appeal—
surely marks the end of the road for an argument for reversal not first presented to
the district court.” Id. at 1131.
We next note that Mr. Griffin’s opening brief does not challenge the district
court’s decision to grant summary judgment on his second cause of action (asserting
3
In fact, after the defendants moved to stay discovery, Mr. Griffin agreed to
the stay in his response to the motion. The district court noted in its order that
because Mr. Griffin did not contest the motion, it would grant the motion and stay
discovery. Mr. Griffin never requested that discovery be reopened nor did he argue
in response to summary judgment or in his objections to the magistrate’s
recommended disposition that the district court should not rule on the motion without
discovery.
3
that the defendants conspired to violate his First Amendment rights), his third cause
of action (seeking declaratory relief that the provision regarding agenda placement is
void for vagueness) or on his fourth cause of action (seeking injunctive relief
requiring all citizen agenda placement requests be honored). Likewise, he does not
challenge the district court’s decision to grant summary judgment in favor of
defendants Daniel A. Bryant and Daniel A. Bryant, P.C. (the “Bryant Defendants”)
based on the law of the case doctrine.4 He has therefore waived consideration of all
of these issues. See Silverton Snowmobile Club v. U.S. Forest Serv., 433 F.3d 772,
783 (10th Cir. 2006) (explaining that “[t]he failure to raise an issue in an opening
brief waives that issue” (internal quotation marks omitted)).
Mr. Griffin’s opening brief focuses on his first cause of action—that the
defendants violated his First Amendment rights when they denied his request to
speak during the agenda portion of the relevant Council meetings. As the magistrate
judge explained in his recommended disposition, a council’s refusal to put a citizen
on the agenda oftentimes operates as a denial of an opportunity to speak at the
meeting. See Aplt. App., Vol. II at 63-64. But, in this case “it had no such effect.”
4
All of the other defendants, except for the Bryant Defendants, joined in filing
one motion for summary judgment. After the district court granted summary
judgment in favor of those defendants, Mr. Griffin filed an appeal. That appeal was
ultimately dismissed for lack of jurisdiction because the claims against the
Bryant Defendants remained pending. After the dismissal, the Bryant Defendants
moved for summary judgment. In the motion, they argued that Mr. Griffin’s claims
had been fully adjudicated when the district court granted summary judgment in
favor of the other defendants. The Bryant Defendants therefore argued that the “law
of the case doctrine” should govern the claims against them and judgment should be
entered in their favor. The district court agreed and granted the motion.
4
Id. at 64. “Instead, regardless of whether an individual or topic was ‘on the agenda,’
a citizen was permitted to address the council during the ‘Public Input’ time.” Id. It
is undisputed that Mr. Griffin did address the Council on several occasions during the
Public Input portion of the meeting. The magistrate judge therefore explained that
“the denial of [Mr. Griffin’s] request to be placed on the agenda did not exclude him
from speaking on his selected topic at the council meeting.” Id. The district court
agreed with the magistrate judge, concluding that “Griffin presented no evidence of
infringement on his First Amendment rights, because he was never barred from any
Governing Body meeting nor prevented from speaking at one.” Id. at 184.
The crux of Mr. Griffin’s argument for reversal is that the agenda portion of
the Council meeting and the Public Input portion of the same meeting are separate
forums5 that need to be analyzed separately for First Amendment purposes. But he
offers no case where a court has held that one continuous council meeting with the
same audience should be treated as two different forums.
The magistrate judge considered this two-forum argument, but identified a
significant flaw in Mr. Griffin’s logic. In order to maintain the position that the
agenda portion and the Public Input portion are two separate forums, Mr. Griffin had
5
The Supreme Court has recognized three types of forums that may exist on
government property: traditional public forums, designated public forums and
nonpublic forums. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S.
788, 802 (1985). “[T]he [Supreme] Court has [also] used the term ‘limited public
forum’ to describe a type of nonpublic forum.” Summum v. Callaghan, 130 F.3d 906,
914 (10th Cir. 1997). Restrictions on speech are analyzed differently depending on
the forum. See PeTA, People for the Ethical Treatment of Animals v. Rasmussen,
298 F.3d 1198, 1204 (10th Cir. 2002).
5
to assert in his response to summary judgment that “[his] target audience . . . was the
Village Council agenda itself.” See id., Vol. II at 17. But, as the magistrate judge
explained,
the agenda is not an ‘audience.’ The Council members and the other
citizens at the meeting are the audience. And, notwithstanding the fact that
he was not placed on the agenda, he was permitted to address both of those
audiences on his selected topic in the forum of the council meeting. Thus,
the council’s refusal to place [Mr. Griffin] on its agenda, in and of itself,
was not a restraint on his speech.
Id., Vol. II at 65.
Before the district court, Mr. Griffin also complained about certain differences
between the Public Input portion and the agenda portion of the Council meeting. In
his opening brief, Mr. Griffin does compare the guidelines governing placement on
the agenda with those pertaining to speaking during the Public Input portion. It is not
clear whether this is a challenge to the Public Input restrictions, but we agree with the
district court “that the only cognizable restriction Griffin suffered by the Governing
Body not placing him on the agenda was the imposition of a five-minute time limit
applicable to the public input period but not to the regular agenda.” Id. at 185. We
upheld the constitutionality of a similar time limit in Shero, 510 F.3d at 1203,
concluding that the “three-minute time limitation imposed on [the appellant’s] speech
[during the city council meeting] was a restriction appropriately designed to promote
orderly and efficient meetings.” We therefore agree with the district court that the
6
five-minute time limit for the Public Input portion of the Council meeting was not an
unconstitutional restriction on Mr. Griffin’s speech.6
Although Mr. Griffin obviously had a preference for speaking during the
agenda portion of the meeting as opposed to the Public Input portion of the meeting,
we agree with the district court that the defendants did not violate his constitutional
rights by denying his request to speak on the agenda and instead requiring him to
speak during the Public Input portion of the meeting.7 As the Supreme Court has
explained, “the First Amendment does not guarantee the right to communicate one’s
views at all times and places or in any matter that may be desired.” Heffron v. Int’l
Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 647 (1981).
II. Conclusion
For the foregoing reasons, we affirm the judgment of the district court.
Entered for the Court
Gregory A. Phillips
Circuit Judge
6
We also note that, on one occasion, the Council increased Mr. Griffin’s time
for speaking during the Public Input portion to ten minutes.
7
Because we conclude that Mr. Griffin was not restrained from speaking
during the Council meeting and that the time limit on his speech during the Public
Input portion of the meeting satisfies the strict scrutiny standard under our decision
in Shero, we need not decide whether the Council meeting is a designated public
forum or a limited public forum. Shero, 510 F.3d at 1203.
7