                                                                            FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                     UNITED STATES COURT OF APPEALS                    May 14, 2008
                                                                   Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                      Clerk of Court


    BRYAN L. TRAVIS,

                Plaintiff-Appellant,

    v.                                                   No. 07-4192
                                                 (D.C. No. 2:04-CV-00462-TC)
    PARK CITY POLICE                                       (D. Utah)
    DEPARTMENT; PARK CITY
    MUNICIPAL CORPORATION,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before MURPHY, McKAY, and GORSUCH, Circuit Judges.


         Bryan L. Travis is a graphic artist who often displays his work in Miner’s

Park in Park City, Utah. On one particular day, a police officer, who apparently

misunderstood the relevant city ordinance that precluded conducting business in

city parks without a license, but allowed the display of artwork, ejected

Mr. Travis from the park. Mr. Travis sued Park City Municipal Corporation and


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R., App. P. 34(a)(2); 10th Cir., R., 34.1(G). The case is
therefore ordered 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
the Park City Police Department (“Park City”), but not the officer in question.

On summary judgment, the district court held that Mr. Travis lacked standing to

bring a First Amendment challenge to the ordinance at issue because he did not

violate it or have any intention to violate it. The court also ruled that

Mr. Travis’s claims for municipal liability under 42 U.S.C. § 1983 failed because

the evidence showed that the officer in question acted in violation, not pursuant

to, city policy or custom. We now affirm.

                                         ***

      This lawsuit stems from an incident on January 17, 2004. Mr. Travis was

showing his artwork in Miner’s Park when he was approached by a Park City

police officer who mistakenly informed him that he could not show his artwork

without a business license. In fact, the pertinent municipal ordinance then in

force proscribed conducting business in city parks without a license, not the mere

display of artwork, and it is undisputed that Mr. Travis was not offering any art

for sale on that particular day. The officer told Mr. Travis to leave the park

immediately, warning him that if he did not he would be subject to misdemeanor

charges and the confiscation of his work. Mr. Travis packed up his belongings

and left the park under the supervision of the officer. He was neither arrested nor

cited, and his artwork was not taken by the officer. Indeed, Mr. Travis himself

stresses that approximately seventeen months earlier, in August 2002, Park City

Police Chief Lloyd Evans had visited another art show in Miner’s Park and

                                          -2-
expressly informed Mr. Travis and other artists that they could display their art

work in Miner’s Park without regulation by Park City, so long as they did not

offer it for sale.

       Mr. Travis’s amended pro se complaint challenged the constitutionality of

two ordinances. One, the ordinance in place at the time of the January 2004

incident, requires a city license to engage in business. Park City Mun. Corp.

Mun. Code § 4-2-1 (hereafter § 4-2-1). The other, enacted after Mr. Travis’s

confrontation, specifically prohibits artists from exhibiting art for sale without a

license in city parks. Id. § 4-3A-7 (hereafter § 4-3A-7). Mr. Travis challenged

these ordinances as unconstitutional violations of, among other things, his First

Amendment rights. Mr. Travis also asserted that Park City’s actions gave rise to

liability under 42 U.S.C. § 1983 for violating a number of his constitutional

rights. Finally, he alleged various state law violations, claiming that he had been

defamed, that his career had been injured, and that he was entitled to punitive

damages.

       In due course, the district court adopted a magistrate judge’s

recommendation and granted partial summary judgment to Park City with respect

to Mr. Travis’s requests for punitive damages and damages related to defamation

and purported threats to his career. 1 After further proceedings, a pre-trial

1
    Park City asserts that Mr. Travis did not appeal the entry of partial
summary judgment. In fact, however, Mr. Travis did attempt to appeal, but this
                                                                    (continued...)

                                          -3-
conference was held, after which the district court struck the case from its trial

calendar and instructed Park City to submit a (second) motion for summary

judgment. For purposes of this motion, Park City conceded that an artist who is

merely showing his art is not required to be licensed, and that it was a mistake for

its police officer to order Mr. Travis to leave Miner’s Park. Nonetheless, Park

City argued that (1) Mr. Travis lacked standing to bring a First Amendment

challenge to the city’s two ordinances, and (2) a mistake on the part of a Park

City police officer was insufficient to establish municipal liability for the various

constitutional violations Mr. Travis alleged. The district court agreed and granted

Park City’s second motion for summary judgment; Mr. Travis now appeals that

judgment, contesting those two rulings.

                                         ***

      We review a grant of summary judgment de novo, applying the same

standard as the district court under Fed. R. Civ. P. 56(c). In First Amendment

cases, we have “an obligation to make an independent examination of the whole

record in order to make sure that the judgment does not constitute a forbidden

intrusion on the field of free expression.” Bose Corp. v. Consumers Union of


1
 (...continued)
court dismissed the appeal for lack of a final judgment. R., Vol. IV, Doc. 179. In
the present appeal, Mr. Travis does not seek to revive his challenge to the earlier
entry of partial summary judgment or any aspect of his state law claims. Indeed,
the only issues on which the parties appear to join issue after the district court’s
partial summary judgment ruling are purely federal in nature.

                                          -4-
U.S., Inc., 466 U.S. 485, 499 (1984) (internal quotation marks omitted).

Likewise, when, as here, a party proceeds pro se, we construe his or her pleadings

liberally. See Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).

       1. Mr. Travis argues first that he does have standing to bring a First

Amendment challenge to Park City’s ordinances. In assessing this claim on

summary judgment, we must ask whether, when viewed in the light most

favorable to him, Mr. Travis has adduced facts suggesting that he has “suffered an

‘injury in fact,’ that the injury is fairly traceable to the challenged action of the

Defendants, and that it is redressable by a favorable decision.” Initiative &

Referendum Inst. v. Walker, 450 F.3d 1082, 1087 (10th Cir. 2006) (en banc), cert.

denied 127 S. Ct. 1254 (2007); accord ACORN v. City of Tulsa, 835 F.2d 735,

738 (10th Cir. 1987) (“In order to satisfy the article III restrictions on standing, a

party must show at least that he or she has suffered an actual or threatened injury

caused by the defendant and that a favorable judicial decision is likely to redress

the injury.”). 2

       “Injury in fact” means “an invasion of a legally protected interest which is

(a) concrete and particularized, and (b) actual or imminent, not conjectural or


2
       A plaintiff must establish standing whether he or she is challenging the law
facially or as applied See Phelps v. Hamilton, 122 F.3d 1309, 1326 (10th Cir.
1997) (requiring a plaintiff bringing a First Amendment challenge on facial
grounds to “still satisfy the ‘injury-in-fact’ requirement in order to demonstrate
standing”); Aid for Women v. Foulston, 441 F.3d 1101, 1108-11 (10th Cir. 2006)
(same with regard to plaintiffs bringing “as applied” challenge).

                                          -5-
hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)

(quotations, citations, and footnote omitted); see also Nat’l Council for Improved

Health v. Shalala, 122 F.3d 878, 883 (10th Cir. 1997). “A plaintiff generally has

standing only if he or she has alleged an intention to engage in a course of

conduct arguably affected with a constitutional interest, but proscribed by statute,

and there exists a credible threat of prosecution thereunder.” Phelps, 122 F.3d at

1326 (quotation omitted). Further, in cases such as this, where a plaintiff

requesting prospective relief alleges that government action chills protected

speech in violation of the First Amendment, he or she can make the showing of

particularized injury by producing

      (1) evidence that in the past [he has] engaged in the type of speech
      affected by the challenged government action; (2) affidavits or
      testimony stating a present desire, though no specific plans, to engage
      in such speech; and (3) a plausible claim that [he] presently [has] no
      intention to do so because of a credible threat that the statute will be
      enforced.

Walker, 450 F.3d at 1089. 3

      Mindful of our obligation on appeal to “make an independent examination

of the whole record,” Bose Corp., 466 U.S. at 499, we have carefully reviewed

the voluminous record in this matter, paying particular attention to deposition

testimony and the transcripts from hearings before the district court. We

3
      While Walker characterized evidence of past activity as not indispensable,
because “people have a right to speak for the first time,” the court noted that such
evidence would “lend concreteness and specificity to the plaintiffs’ claims.”
Walker, 450 F.3d at 1089.

                                         -6-
conclude that, even when viewing the facts in the light most favorable to him,

Mr. Travis has failed to establish that his purported injury is sufficiently

“concrete and particularized” to confer standing.

      Critically, Mr. Travis denied ever selling art in the Park City parks either

before or after the Chief of Police of Park City told him in August 2002 that he

could show his art but could not sell it without a licence. Appellee’s Supp. App.

Vol. I at 249-50. At a motions hearing on March 12, 2007, Mr. Travis stated that,

on January 17, 2004, “I wasn’t selling. I didn’t have intention to sell. I didn’t

have future intentions to sell because nobody can read the future.” R., Vol. V,

Doc. 209-3 at 19. Again in his opposition to the pre-trial order, Mr. Travis

repeated that he “was not selling had no intent to sell and had no price tags on

[my] violin sculptures.” Appellee’s Supp. App., Vol. I at 267. Because

Mr. Travis has no intention to sell his art in the public spaces of Park City

without a license, and there is no evidence he forsook such an intention because

of fear of arrest, he has failed to show standing. Put differently, while Park City

concedes that its police officer misapplied § 4-2-1 by ordering Mr. Travis to stop

displaying his artwork in Miner’s Park, the officer’s action does not confer

standing on Mr. Travis to challenge whether the ordinances violate the First

Amendment, either facially or as applied, because he has not shown the requisite




                                          -7-
intention to bring himself within the scope of the conduct proscribed by the

ordinances. See Phelps, 122 F.3d at 1326; Foulston, 441 F.3d at 1109-11. 4

      2. Mr. Travis’s federal remedy for the misapplication of an ordinance in a

manner that violates his constitutional rights arises under 42 U.S.C. § 1983. The

problem here is that Mr. Travis has sued only Park City, not the officer in

question, and under our precedents a municipality can be held liable for the

unconstitutional actions of its employees only when those employees act pursuant

to city policy or custom, see Simmons v. City of Uintah Health Care Special Dist.,

506 F.3d 1281, 1284-85 (10th Cir. 2007) (citing Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 690-91 (1978), or when the city itself has acted in a manner

deliberately indifferent to the continuing, widespread, and persistent

unconstitutional conduct by city officials, see Rost ex. rel. K.C. v. Steamboat

Springs RE-2 Sch. Dist., 511 F.3d 1114, 1125 (10th Cir. 2008). Mr. Travis has

not presented any facts suggesting that the officer who ejected him from Miner’s

Park did so pursuant to city custom or policy or as a result of any deliberate

4
       In his appellate brief, Mr. Travis does assert that he now intends to sell his
artwork in public parks. As appellee correctly notes, however, this represents a
change in position. Before the district court, Mr. Travis made no such assertion
and offered no such testimony – indeed, he took just the opposite position there –
and the court of appeals is rarely the appropriate venue for the introduction of
new evidence and issues; instead, we generally review a district court’s
disposition of a summary judgment on the record as it was developed by the
parties in the district court, see, e.g., Boone v. Carlsbad Bancorp., Inc., 972 F.2d
1545, 1549 n.1 (10th Cir. 1992) (“[w]e will not review [evidence that] was not
before the district court when the various rulings at issue were made”), and we
discern no reason to depart from that practice now.

                                         -8-
indifference on the city’s part. To the contrary, Mr. Travis concedes that the

city’s official policy was (and is) to allow the exhibiting of art so long as the

artist does not attempt to also make sales. Given this, our precedent dictates

dismissal of his § 1983 claim.

                                       *   *     *

      The judgment of the district court is affirmed. Mr. Travis’s requests for

injunctive relief and damages as well as his outstanding motion for sanctions are

denied.



                                                 Entered for the Court



                                                 Neil M. Gorsuch
                                                 Circuit Judge




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