                                                                              FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

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



 SUMMUM, a corporate sole and church,

                Plaintiff - Appellant/
                Cross - Appellee,
                                                         Nos. 05-4162, 05-4168,
           v.                                             05-4272, & 05-4282
                                                     (D. Ct. No. 2:03-CV-1049-DB)
 DUCHESNE CITY, a governmental                                  (D. Utah)
 entity; CLINTON PARK, Mayor of
 Duchesne City; YORDYS NELSON;
 NANCY WAGER; PAUL TANNER;
 DARWIN MCKEE; JEANNIE
 MECHAM, city council members,

                Defendants - Appellees/
                Cross-Appellants.


                               ORDER AND JUDGMENT*


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


       Summum, a religious organization, filed suit under 42 U.S.C. § 1983 against

Duchesne City, its mayor, and its city council members (collectively, “the City”) for

alleged violations of Summum’s First Amendment free speech rights after the City denied


       *
        This order and judgment is not binding precedent except under the doctrines of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.
Summum’s request for a plot of land in a city park on which Summum intended to erect a

monument of the Seven Aphorisms of Summum. See Summum v. Duchesne City, 482

F.3d 1263, 1266 (10th Cir. 2007). A monument of the Ten Commandments had

previously been erected on land within the park. Id. The district court entered summary

judgment in favor of the City with respect to Summum’s request for prospective

injunctive relief from alleged ongoing violations of its free speech rights, but the court

entered summary judgment in favor of Summum with respect to Summum’s request for

declaratory relief and nominal damages for the City’s past violations of its free speech

rights. Id. at 1266, 1267. The district court awarded Summum attorneys’ fees to

Summum as a prevailing party under 42 U.S.C. § 1988. Id. at 1267.

       On Summum’s appeal and the City’s cross-appeal, we applied principles of forum

analysis applicable to private speech on government property. See id. at 1268. We

ultimately concluded that the City had violated Summum’s free speech rights in the past

and affirmed the entry of summary judgment in favor of Summum on that issue. Id. at

1274. We found a genuine issue of material fact precluded the entry of summary

judgment in favor of the City on Summum’s claim for injunctive relief and reversed that

order. Id. at 1275. On the issue of attorneys’ fees, we noted that “[b]ecause we reverse

the District Court’s grant of summary judgment in favor of the City with respect to

injunctive relief, we vacate its order awarding attorneys’ fees. The District Court may

recalculate attorneys’ fees after it determines whether Summum is entitled to injunctive

relief in light of the foregoing discussion.” Id. at 1276.

                                             -2-
       While the City’s petition for a writ of certiorari was pending, the Supreme Court

decided Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009). In that case, the

Supreme Court held that “as a general matter, forum analysis simply does not apply to the

installation of permanent monuments on public property.” 129 S. Ct. at 1138. Rather, a

“[c]ity’s decision to accept certain privately donated monuments while rejecting [others]

is best viewed as a form of government speech. As a result, [that] decision is not subject

to the Free Speech Clause.” Id. After its decision in Pleasant Grove, the Supreme Court

granted the City’s petition for certiorari in this case, vacated the judgment, and remanded

for further consideration in light of Pleasant Grove.

       Because Pleasant Grove calls into question the rationale underlying the district

court’s grant of summary judgment to Summum and to the City, we remand to the district

court with instructions to reconsider those decisions giving particular attention to whether

the action of the City constitutes government speech not subject to the Free Speech

Clause. The district court should then reconsider whether Summum is a prevailing party

entitled to attorneys’ fees under § 1988. The mandates stayed originally per our order

dated September 5, 2007 are issued forthwith.

                                          ENTERED FOR THE COURT,



                                          Deanell Reece Tacha
                                          Circuit Judge




                                            -3-
