UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ PEDRO REYES; TERESITA REYES, Plaintiffs - Appellants,

v. JEFF JENSEN; GARY GERRARD; LARIMER COUNTY COMMUNITY PLANNING DEPARTMENT, Defendants - Appellees. No. 20-1247 (D.C. No. 1:18-CV-03115-STV) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , BRISCOE , and CARSON , Circuit Judges.

________________ _________________ Husband and wife Pedro Reyes and Teresi ta Reyes, appearing pro se, appeal the district court’s grant of summary judgment 1 in favor of defendants Jeff Jensen, Gary Gerrard, and the Larimer County Co mmunity Planning De partment (“Planning

* After examining the briefs and appella te record, this pa nel 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 This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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.

1 The parties consented to the jurisdicti on of the magistrate judge pursuant to 28 U.S.C. § 636(c) thereby permitting the ma gistrate judge to adjudicate the case on behalf of the district court, in cluding entry of final judgment. FILED United States Court of Appeals Tenth Circuit 

### May 24, 2021 Christopher M. Wolpert Clerk of Court2 Commission”) 2 on their claims under Title II of th e Americans with Disabilities Act (“ADA”) and due process under 42 U.S.C. § 1983. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm fo r the reasons set forth in th e district court’s thorough and well-reasoned order da ted June 19, 2020.
I. BACKGROUND This case arose out of events at a public hearing before the Planning Commission on August 15, 2018. Lovela nd Ready-Mix Concrete, Inc. (“Ready Mix”) applied to the Larimer County Co mmunity Development Department for a special-review permit to opera te a gravel mine near Lapor te, Colorado. As part of the permitting process, Ready Mix was requi red to present its application to the Planning Commission at a public hearing, after which the Commission would make a recommendation to the Larimer Board of County Commissioners (“Board of Commissioners”) to approve the a pplication (with or without cond itions) or deny it. The first public hearing took place on Augu st 15. The hearing was advertised in advance, video recorded, and televised to the local go vernment channel. At the time of the hearing, Mr. Jensen was the Chair of the Planning Commission and Mr. Gerrard was the Vice-Chair. Mr. Re yes and Ms. Reyes attended the August 15 hearing, and each signed up to speak regard ing Ready Mix’s application. At the outset, Mr. Jensen explaine d the procedures that would apply at the hearing,

2 Although the caption of the operative complaint refers to the “Larimer County Community Planning Department,” R., Vol. I at 95 (capitalization normalized), the allegations in the body of the complaint concern the Planning Commission, see id. at 95-130.3 including that each person who signed up to speak would be allowed two minutes to testify and if the hearing was not concl uded by 10:00 p.m., it would continue the following week on August 22. Ready Mix made its presentation and Mr. Jensen then called on the individuals who had signed up to speak. When Ms. Reyes’s name was called, she got up and began speaking; but when her comments ex ceeded the two-minute limit, Mr. Jensen reminded her three times that her time had e xpired. Mr. Jensen then called the next speaker—Mr. Reyes—who asked twice, “Can I give my time to her?” referring to his wife. R., Vol. 2 at 44 (alteration and internal quotation marks omitted). When Mr. Gerrard explained to Mr. Jensen that Mr . Reyes was asking to give his time to his wife, Mr. Jensen told Mr. Re yes, “No, sir. You cannot do that. You’re welcome to come and speak if you’d like.” Id. at 45-46 (internal quotation marks omitted). Mr. Reyes responded, “No. Thank you.” Id. at 46 (internal quotation marks omitted). Neither Mr. Reyes nor Ms. Reyes info rmed the Planning Commission, either prior to or during the hearing, that Mr. Reyes was disabled and required an accommodation to deliver his comments. Mo reover, there was nothing obvious about Mr. Reyes’s speech or appear ance that would cause either Mr. Jensen or Mr. Gerrard to believe that he was di sabled. When the second hearing reconvened on August 22, Mr. Jensen invited any members of the public who had not yet s poken on the application to make their comments. Apparently, Mr. Reyes was not in attendance, or if he was, he did not make his presence known to the Planning Commission. At no time after the August4 15 hearing, did either Mr. Re yes or Ms. Reyes contact st aff to inform them that Mr. Reyes was disabled and that they shoul d take steps to determine how he might provide his testimony on August 22. Instea d, they filed suit in the United States District Court for the Dist rict of Colorado. In a March 21, 2019 order, the district court dismissed seve ral of Mr. Reyes’s claims as legally frivolous. It also found that the compla int stated no facts to support a claim by Ms. Reyes under either Title II or § 1983 and dismissed Ms. Reyes from the case entirely. As a result, at the time of summa ry judgment, Mr. Reyes’s remaining claims were against (1) the Planning Commission, and Mr. Jensen and Mr. Gerrard, in their offici al capacities, under Title II, and (2) Mr. Jensen, in his individual capacity, under § 1983. The distri ct court granted de fendants’ motion for summary judgment. This appeal followed.
II. THE MARCH 21 ORDER Before we address the meri ts, we note that Ms. Reyes has included herself as a party to the appeal, which su ggests she disagrees with th e district court’s March 21 order that dismissed her from the case. Bu t Ms. Reyes does not me ntion the order or the grounds on which she was dismissed. Rather, her appeal rests on the bald statement that Mr. Reyes’s claims belong to her because they function as a single economic unit. See Aplt. Opening Br. at 16 (“Pedro’s loss of the right to protest a perceived threat to his health, safety and property interest is also Teresita’s loss , being that, as Pedro’s spouse, Teresita shared [an] in terchangeable economic interest,5 in the conjugal property, that the Defe ndants had denied . . . Pedro . . . the opportunity to protect.”). Ms. Reyes’s failure to support this st atement with any legal authority means she has waived an appellate challenge to the order. “A lthough a pro se litigant’s pleadings are to be construe d liberally and held to a le ss stringent standard than formal pleadings drafted by la wyers, this court has repeat edly insisted that pro se parties follow the same rules of pro cedure that govern other litigants.” Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 840 (10t h Cir. 2005) (brackets, citation, and internal quotation marks omitte d). Those rules include Federal Rule of Appellate Procedure 28(a)(8)(A), which require s an appellant to include in her brief “appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on wh ich the appellant relies.” Therefore, when an issue is not adequate ly briefed, it will be deemed waived.
See Garrett , 425 F.3d at 841 (“When a pro se l itigant fails to co mply with [Rule 28(a)(8)(A)], we cannot fill the void by crafting arguments and performing the necessary legal research.” (brackets and internal quotation marks omitted)). See also Holmes v. Colo. Coal. for the Homeless Long Term Disability Plan , 762 F.3d 1195, 1199 (10th Cir. 2014) (declining to cons ider arguments on appeal that were inadequately briefed); Murrell v. Shalala , 43 F.3d 1388, 1389 n.2 (10th Cir. 1994) (declining to consider “a few scattered stat ements” and “perfunctory” arguments that failed to develop an issue).6 And because Mr. Reyes also fails to a ddress the grounds on which the district court dismissed several of his claims as legally frivolous, he has likewise waived an appellate challenge to the March 21 order.
III. DISCUSSION
A. Standard of Review “We review a grant of summary judgment de novo.” J.V. v. Albuquerque Pub. Schs. , 813 F.3d 1289, 1294 (10th Cir. 2016). “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a ma tter of law.” Fed. R. Civ. P. 56(a).
B. Title II
1. Proper Defendant We first address whether the Planning Commi ssion is a proper defendant. It is not. “[T]he proper defendant under a Title II claim is the public entity or an official acting in his official capacity.” Everson v. Leis , 556 F.3d 484, 501 n.7 (6th Cir. 2009). Under Colorado law, if the public entity is a branch of the county, the plaintiff is required to bri ng an action against a county in the name of the board of county commissioners. See Gonzales v. Martinez , 403 F.3d 1179, 118 2 n.7 (10th Cir. 2005) (citing Colo. Rev. Stat. § 30-11-105). As a result, the di strict court properly dismissed the Planning Commission. But we also agree with the district cour t that Mr. Reyes’s failure to name the Board of Commissioners as a defendant wa s not fatal because he accomplished the same objective when he named as defendants, Mr. Jensen and Mr. Gerrard, in their7 official capacities. See, e.g. , Monell v. Dep’t of Soc. Servs. , 436 U.S. 658, 690 n.55 (1978) (“[O]fficial capacity suits . . . represent only another way of pleading an action against an entity of whic h an officer is an agent.”). We now turn to the merits.
2. Discrimination “To state a claim under Title II [of the ADA], the plaintiff must allege that (1) he is a qualified individual with a disability, (2) who was excluded from participation in or denied the benefits of a public entity’s se rvices, programs, or activities, and (3) such exclusion, denial of benefits , or discrimination was by reason of a disability.” Robertson v. Las Animas Cnty. Sheriff’s Dep’t , 500 F.3d 1185, 1193 (10th Cir. 2007) (citing 42 U.S.C. § 12132). There ar e two types of claims under § 12132: “(1) exclusion from or denial of benefits and (2 ) discrimination.” J.V. , 813 F.3d at 1295. Under either theory, a plai ntiff is required to prove “the foregoing three elements, including . . . that any de nial of benefits or discrimination was by

reason of the plaintiff’s disability .” Id. (internal quotation marks omitted) (emphasis added). In turn, “[c]ourts have recognized three ways to establish a discrimination claim: (1) intentional disc rimination (disparate treatment ); (2) disparate impact; and (3) failure to make a reasonable accommodation.” Id. For his Title II claim, Mr. Reyes su ed for intentional discrimination when Mr. Jensen and Mr. Gerrard prevented him from speaking at the August 15 hearing, and failure to accommodate when Mr. Jens en refused to allo w him to give his speaking time to Ms. Re yes.8 a. Disability To meet the first prong under § 12132, a plaintiff must show that he (1) has a physical or mental impairme nt that substantially limits one or more major life activities; (2) has a re cord of such an impairment; or (3) is regarded as having such an impairment. See 42 U.S.C. § 12102(1) (A)-(C). According to Mr. Reyes, he was disabled and unable to speak at the hearing because he suff ers from impaired hearing, poor vision, and has a limited unders tanding of the English language. The district court found that the inability to speak English is not a disability under the ADA. See R., Vol. II at 295 (citing § 12102). And although the court noted the “lack of [any] eviden ce as to the nature and extent of [Mr. Reyes’s] hearing impairment and poor vision,” it “assume[d] for purposes of [summary judgment] that [Mr. Reyes] has a qualified disability

. ” Id. We do the same.
b. Intentional Discrimination The district court found the following facts, which we agree entitled Mr. Jensen and Mr. Gerrard to summary ju dgment for intentional discrimination. “[T]he undisputed facts demonstrate that [Mr. Reyes] was not excluded from the [August 15] hearing

. ” Id. “After [Mr. Reyes] was told that he could not give his speaking time to [his wife], Mr. Jensen [invited Mr. Re yes to speak] . . . [and he] responded, “No. Thank you.” Id. (citation omitted). “More over, the undisputed facts demonstrate that Mr. Jensen and Mr. Gerrard did not act, and could not have acted, by reason of [Mr. Reyes’s] purported disability, because they had no knowledge of his disability.” Id. (internal quotation marks omitted) (emphasis added). “Instead,9 Mr. Jensen and Mr. Gerrard were enfo rcing the Planning Commission’s rule, applicable to all participan ts, that speakers could not de fer their speaking time to others.” Id. at 296.

c. Failure to Accommodate Applicable ADA regulations require public entities to “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on th e basis of disability.” 28 C.F.R. § 35.130(b)(7)(i). “As a resu lt, we require public enti ties to provide reasonable accommodations to disabled persons.” J.V. , 813 F.3d at 1299. “A public entity must provide a reasonable accommodation under the ADA when it knows that the individual is disabl ed and requires an accommodation of some kind to participate in or receive the benefits of its services.” Id. (internal quotation marks omitted). “A public entity is on notice that an individual needs an accommodation when it knows that an indivi dual requires one, eith er because that need is obvious or because the indi vidual requests an accommodation.” Id. (brackets and internal quotation marks omitted). The district court found “it is undisputed that [Mr. Reyes] did not request an accommodation, nor does [Mr. Reyes] set fo rth any evidence that his need for an accommodation was obvious, or refute any of the evidence presented by [Mr. Jensen and Mr. Gerrard] that they were unaware that [Mr. Reyes] wa s disabled.” R., Vol. II at 297 (internal quotation mark s omitted). As a result, su mmary judgment for failure to accommodate was proper.10 C. Due Process The district court found that Mr. Jensen was entitled to summary judgment on the due process claim on the grounds of qualified immunity. We agree.
1. Qualified Immunity “Under the qualified immunity doctri ne, government officials performing discretionary functions, generally are shield ed from liability for ci vil damages insofar as their conduct does not viol ate clearly established federa l statutory or constitutional rights of which a reasonable person would have known.” Riggins v. Goodman , 572 F.3d 1101, 1107 (10th Ci r. 2009) (brackets and internal quotation marks omitted). “When a defendant asserts qualifi ed immunity at summary judgment, the burden shifts to the plaintiff, who must clear two hurdles in order to defeat the defendant’s motion.” Id. First, “[t]he plaintiff must demonstrate on the facts alleged . . . that the defendant viol ated his constitutional or st atutory rights,” and second, “that the right was clearly es tablished at the time of the alleged unlawful activity.” Id. “A right is clearly established when, at the time of the alleged violation, the contours of the right were sufficiently clear that a reasona ble official would understand that what he is doing violates that right.” Id. at 1111 (brackets and internal quotation marks omitted). “A plain tiff can demonstrate that a constitutional right is clearly established by references to cases from th e Supreme Court, the Tenth Circuit, or the weight of au thority from other circuits.” Id.11 a. Constitutional Violation “To assess whether an individual was de nied procedural due process, courts must engage in a two-step inquiry: (1) di d the individual possess a protected interest such that the due process protections were applicable; and, if so, then (2) was the individual afforded an approp riate level of process.” Id. at 1008 (internal quotation marks omitted). Here, Mr. Re yes asserted two protected in terests that he claims he was deprived of without appropriate due proces s: (1) the right to be present and to be heard at the August 15 hearing, and (2) an interest in the R eady Mix gravel-mine project. 3 With regard to the right to be presen t and heard, the dist rict court found that Mr. Reyes “attended the [August 15] hearing, was included on a list of individuals who wished to speak at the hearing and was given the opportunity to speak.” R., Vol. II at 300. The court further found that Mr. Reyes lacked a protected property interest in the Planning Commission’s hearing regard ing the gravel-mine project because the final decision-maker whether to approve R eady Mix’s application was the Board of Commissioners.

3 Mr. Reyes raises a new due process argument for the first time on appeal— that he was not told prior to the August 15 hearing that he could not give his speaking time to Ms. Reyes to have her speak on hi s behalf. It is unclear how this new argument would give rise to a due proce ss claim. But in any event, Mr. Reyes forfeited the argument by failing to raise it in the district court and has waived the argument on appeal by failing to argue that the lower court’s failure to consider the new theory was plain error. See Richison v. Ernest Grp., Inc. , 634 F.3d 1123, 1127-31 (10th Cir. 2011).12 In any event, the district court found th at even if Mr. Reyes “had demonstrated a protectible liberty or property intere st, the undisputed f acts establish that [Mr. Jensen] did not deprive [Mr. Reyes] of proper process.” Id. at 301. “[I]t is undisputed that the grav el mine application was presented to the Planning Commission at the hearings on August 15 and August 22. The hearings were open to the public, advertised in the local newspaper ahead of time, and [Mr. Reyes] attended the hearing.” Id. at 302 (citation omitted). Mr. Reye s “was included on the list of speakers, and [he] was specif ically invited to come fo rward and speak when [he] attempted to give his time to Ms. Reyes. [Mr. Reyes] refused the opportunity to speak.” Id. at 302-03 (citations omitted). We ag ree with the court’s finding that these procedures satisfied th e fundamental requirement of due process, which “‘is the opportunity to be heard at a meaningful time and in a meaningful manner.’” Id. at 301 (quoting Pater v. City of Casper , 646 F.3d 1290, 1298 (10th Cir. 2011)).
b. Clearly Established Right The district court further found that “even if [Mr. Reyes] ha d established a due process violation, Mr. Jensen is entitled to qualified immu nity because [Mr. Reyes] has not demonstrated a clea rly established right.” Id. at 303. Specifically, the court found that Mr. Reyes “has not identified, nor has the Court uncovered, any precedent that would have put Mr. Jensen on notice th at that informing [Mr. Reyes] that he could not give his speaking time to Ms. Re yes, while simultaneously inviting [Mr. Reyes] himself to speak, would have violat ed [Mr. Reyes’s] constitutional rights.” Id. Moreover, Mr. Reyes has also failed to direct this court to any relevant precedent13 on appeal. His failure to demonstrate a clearly established right means that Mr. Jensen was entitled to summary judgment on the grounds of qualified i mmunity.
D. New Claims In response to defendants’ motion for summary judgment, Mr. Reyes attempted to raise several ne w claims that were not rais ed in the operative complaint; namely, claims arising unde r the Equal Protection Clause, the First Amendment, and the Ninth Amendment. The district court refused to consider the new claims on the grounds that a party is not permitted to raise new clai ms at the summary judgment stage. See Evans v. McDonald’s Corp. , 936 F.2d 1087, 1091 (10th Cir. 1991) (“[P]laintiffs [cannot] wait until the last minute to ascertai n and refine the theories on which they intend to build their case.”). Not only did Mr. Reyes attempt to raise new claims in res ponse to defendants’ motion for summary judgment, he also tacks on several ne w claims for the first time on appeal, which include fraud on the court, violation of HIPAA, and race-based discrimination. But Mr. Reye s forfeited all thes e claims by failing to raise them in the district court, and has waived them in this court by failing to argue that the magistrate judge’s failure to c onsider them was plain error. See Richison , 634 F.3d at
1127-31.14 IV. CONCLUSION The judgment of the dist rict court is affirmed. We deny Mr. Reyes’s and Ms. Reyes’s motions to proceed on appeal without prepayment of fees—in other words in forma pauperis —because they have failed to show “the existence of a reasoned, nonfrivolous argument on the law a nd facts in support of the issues raised on appeal.” DeBardeleben v. Quinlan , 937 F.2d 502, 505 (1 0th Cir. 1991).

Entered for the Court
Mary Beck Briscoe Circuit Judge