                                                                             FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                         April 7, 2009
                       UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                         Clerk of Court
                                     TENTH CIRCUIT


 SUMMUM, a corporate sole and church,

                Plaintiff - Appellant,

           v.                                                  No. 06-4057
                                                      (D. Ct. No. 2:05-CV-638-DB )
 PLEASANT GROVE CITY, a municipal                               (D. Utah)
 corporation; JIM DANKLEF, Mayor;
 MARK ATWOOD, City Council Member;
 CINDY BOYD, City Council Member;
 MIKE DANIELS, City Council Member;
 DAROLD MCDADE, City Council
 Member; JEFF WILSON, City Council
 Member; CAROL HARMER, former City
 Council Member; G. KEITH CORRY,
 former City Council Member; FRANK
 MILLS, City Administrator,

                Defendants - Appellees.


                               ORDER AND JUDGMENT*


Before TACHA and EBEL, Circuit Judges, and KANE,* District Judge.


       In Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1138 (2009), the Supreme

Court reversed this court’s opinion in Summum v. Pleasant Grove City, 483 F.3d 1044

       *
        This order and judgment is not binding precedent except under the doctrines of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.
       *
         Honorable John L. Kane, Jr., Senior District Judge for the District of Colorado,
sitting by designation.
(10th Cir. 2007) and held that the defendants’ conduct does not implicate the First

Amendment’s Free Speech Clause. Because this conclusion is fatal to Summum’s claim

that the defendants violated its free speech rights, we AFFIRM the district court’s denial

of Summum’s motion for a preliminary injunction on this issue and REMAND to the

district court to conduct further proceedings consistent with this order and judgment and

Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009). The mandate stayed originally

by our order dated September 5, 2007 is issued forthwith.

                                          ENTERED FOR THE COURT,




                                          Deanell Reece Tacha
                                          Circuit Judge




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