UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

WILLIAM N. GRIFFIN, 

 Plaintiff - Appellant, 

v. 

DANIEL A. BRYANT, individually and in 

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. 

No. 16-2164 

(D.C. No. 2:13-CV-00799-JB-GBW) 

(D. N.M.) 

_________________________________ 

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 This order and judgment is not binding precedent, 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. 

FILED 

United States Court of Appeals

Tenth Circuit 

January 27, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

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. 
3 

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. 
4 

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. 
5 

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). 
6 

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 
7 

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.