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, th is 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 This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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 Court2 William N. Griffin, an attorney repres enting himself pro se, filed a complaint under 42 U.S.C. § 1983 alleging that the defendants violated his First Amendment rights. He sought da mages as well as decl aratory and injunctive relief. His claims arose out of his three requests to be placed on the Village of Ruidoso Village Council 1 meeting agenda to discuss his belief that a permit issued by the Village of Ruidoso was not in compliance with Fe deral Emergency Management Agency regulations. Although Mr. Gr iffin was not placed on the me eting 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 j udgment 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 id entified as the “Governing Body” or “Council” in the materials subm itted to the district court. We will us e 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 Reso lution’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 quotati on marks omitted). The district court declared that restriction unconstituti onal 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 w ith the facts and we will not repeat them here, except as relevant to our analysis. We review de novo the district cour t’s grant of summary judgment, applying the same legal st andard as the district court. Shero v. City of
Grove , 510 F.3d 1196, 1200 (10th Cir. 2007). Summary j udgment is appropriate “if the movant shows that ther e is no genuine dispute as to any material fact and the movant is entitled to judgmen t as a matter of law.” Fed. R. Civ. P. 56(a). Initially, we note that Mr. Gr iffin asserts, for the firs t time on appeal, that the district court erred in gran ting summary judgment without the benefit of discovery. This argument is forfeited beca use Mr. Griffin failed to ra ise 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 forf eited theories on appeal, we will only do so “if the appellant can satisfy the el ements of the plain error standard of review.” Id . at 1130. Here, however, Mr. Griffin has not even a ttempted to argue plain error. “And the failure to do so—the failure to argue fo r plain error and its application on appeal— surely marks the end of the road for an ar gument 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 judgmen t 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 c ourt noted in its order that because Mr. Griffin did not contest the mo tion, 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 hi s First Amendment rights), his third cause of action (seeking declaratory relief that th e provision regarding agenda placement is void for vagueness) or on his fourth cause of action (seeking injunctive relief requiring all citizen agenda placement reque sts be honored). Likewise, he does not challenge the district cour t’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 Cl ub v. U.S. Forest Serv ., 433 F.3d 772, 783 (10th Cir. 2006) (e xplaining that “[t]he failure to raise an issue in an opening brief waives that i ssue” (internal quotation marks omitted)). Mr. Griffin’s opening brief focuses on his first cause of action—that the defendants violated his First Amendment ri ghts when they denied his request to speak during the agenda portion of the releva nt Council meetings. As the magistrate judge explained in his recommended disposit ion, a council’s refusa l to put a citizen on the agenda oftentimes opera tes as a denial of an opp ortunity 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 defendant s, except for the Bryant De fendants, joined in filing one motion for summary judgment. Afte r the district court granted summary judgment in favor of those de fendants, Mr. Griffin filed an appeal. That appeal was ultimately dismissed for l ack of jurisdiction because the claims against the Bryant Defendants remained pending. Afte r 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 dist rict court granted summary judgment in favor of the other defendants. The Bryant Defendants therefore argued that the “law of the case doctrine” should go vern the claims against them and judgment should be entered in their favor. The district c ourt 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. Griffi n did address the Council on several occasions during the Public Input portion of the meeting. The magistrate judge ther efore explained that “the denial of [Mr. Griffin’ s] request to be placed on th e agenda did not exclude him from speaking on his selected topi c at the council meeting.” Id . The district court agreed with the magistrate judge, concl uding that “Griffin presented no evidence of infringement on his First Amendment rights, because he was neve r barred from any Governing Body meeting nor prev ented from speaking at one.” Id . at 184. The crux of Mr. Griffin’s argument for re versal is that th e agenda portion of the Council meeting and the Public Input po rtion of the same meeting are separate forums 5 that need to be analy zed separately for First Am endment purposes. But he offers no case where a court has held that one continuous council meeting with the same audience should be treate d as two different forums. The magistrate judge considered this two-forum argument, but identified a significant flaw in Mr. Grif fin’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 thre e types of forums that may exist on government property: tr aditional public forums, designated public forums and nonpublic forums. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc ., 473 U.S. 788, 802 (1985). “[T]he [Supr eme] 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). Restri ctions on speech are analyzed differently depending on the forum. See PeTA, People for the Ethical Tr eatment 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 wa s 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. Gri ffin] 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 portio n and the agenda portion of the Council meeting. In his opening brief, Mr. Griffin does co mpare 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 re strictions, but we agree with the district court “that the only cognizable restriction Grif fin suffered by the Governing Body not placing him on the agenda was th e 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 ti me limit in Shero , 510 F.3d at 1203, concluding that the “three-mi nute time limitation imposed on [the appellant’s] speech [during the city council meeti ng] was a restriction appropr iately designed to promote orderly and efficient meetings.” We theref ore agree with the dist rict court that the7 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 obvi ously 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 re quest 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 Ame ndment does not guarantee the right to communicate one’s views at all times and pl aces 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 th e judgment of the district court.

Entered for the Court
Gregory A. Phillips Circuit Judge

6 We also note that, on one occasion, th e Council increased Mr. Griffin’s time for speaking during the Public In put portion to ten minutes.

7 Because we conclude that Mr. Grif fin was not restra ined from speaking during the Council meeting and that the ti me 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 C ouncil meeting is a designated public forum or a limited public forum. Shero , 510 F.3d at 1203.