Vigil v. Delfin et al

Filing 49

MEMORANDUM OPINION AND ORDER by Magistrate Judge Steven C. Yarbrough denying 42 Plaintiff's Motion to Supplement Complaint and granting 18 Defendants' Motion for Summary Judgment. All claims raised in Plaintiff's complaint are hereby dismissed with prejudice. (hm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
RYAN VIGIL,
Plaintiff,
v.

Civ. No. 17-656 SCY/KK

ANTHONY DELFIN, EDDIE TUDOR,
individually and in their official capacities,
and ENERGY, MINERALS, AND NATURAL
RESOURCE DEPARTMENT, a cabinet
department of the STATE OF NEW MEXICO,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
AND DENYING PLAINTIFF’S MOTION TO SUPPLEMENT COMPLAINT
Plaintiff is a firefighter who claims that, without offering him any due process,
Defendants Anthony Delfin, Eddie Tudor, and the Energy Mineral and Natural Resource
Department (“EMNRD”) made a decision to fire him in 2014 and, in later years, illegally refused
to re-hire him. See Doc. 1-2 (Complaint). Plaintiff also seeks to supplement his complaint to
include allegations that, this past year, the new head of the EMNRD, Donald Griego, has
unconstitutionally interfered with his ability to maintain employment elsewhere. Doc. 42.
Defendants have moved for summary judgment, arguing that Plaintiff has not established a
violation of his liberty or property rights and, therefore, cannot prevail on his claims under the
Fourteenth Amendment of the United States Constitution. Doc. 18. Defendants further argue that
Plaintiff cannot obtain injunctive relief under the New Mexico Constitution because he has no
property right and cannot prevail on his claim for breach of implied written contract because no
written contract existed. Id. The individual Defendants also separately assert qualified immunity.
Finally, Defendants oppose Plaintiff’s motion to supplement his complaint. Doc. 44.
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The Court concludes that no reasonable juror could find that Plaintiff suffered an adverse
employment action in 2014 that would give rise to due process protections and that, subsequent
to 2014, no reasonable juror could conclude that Plaintiff had a property right. Therefore, the
Court grants Defendants’ motion for summary judgment with regard to Plaintiff’s first claim
(violation of Fourteenth Amendment right to due process) and third claim (injunctive relief under
the New Mexico Constitution). Plaintiff’s second claim (Fourteenth Amendment deprivation of
liberty) fails because Defendants did not publish the statements about which Plaintiff complains.
Plaintiff’s fourth claim (breach of implied written contract) fails because Plaintiff has not
provided evidence of a written contract that Defendants breached. Because the Court grants
Defendants’ motion on these bases, it need not consider the individual defendants’ qualified
immunity arguments. With regard to Plaintiff’s motion seeking to supplement his complaint,
Plaintiff has failed to allege that Mr. Griego violated a clearly established constitutional right. As
a result, Plaintiff’s proposed amendments would be futile and the Court therefore denies
Plaintiff’s motion to supplement. Accordingly, this lawsuit is hereby dismissed with prejudice.
I.

FACTUAL BACKGROUND1
The Forestry Division of the EMNRD is responsible for wildfire management in New

Mexico and includes several districts, including the Las Vegas Forestry District. Doc. 1-2
(“Compl.”) ¶ 6; Doc. 21-1 at 1, Doc. 1-2 at 3. During the relevant time period, Defendant
Anthony Delfin was the State Forester and subsequently the Deputy Secretary of EMNRD.
Compl. ¶ 4. Defendant Eddie Tudor was Deputy State Forester. Compl. ¶ 5. In these roles, Mr.
Delfin and Mr. Tudor were responsible for overseeing the EMNRD’s Forestry Division as well
as the local Forestry Districts. Compl. ¶¶ 4-5. Proposed Defendant Donald Griego served as State

1

Except as otherwise noted, the following facts are undisputed.

2

Fire Management Officer during the time period at issue in Plaintiff’s initial complaint and, in
2017, he replaced Mr. Delfin as State Forester. Doc. 42-1 (“Proposed Suppl. Compl.”) ¶ 5A.
Plaintiff worked as an Emergency Firefighter/Administratively Determined (EF/AD) for
the Las Vegas District for eight straight fire seasons, beginning in 2006. Pl. Aff. ¶ 8 (Doc. 21-1).
In 2013, Plaintiff became qualified as a Strike Team Leader. Pl. Aff. ¶ 4. From July 19, 2014
until August 30, 2014, in connection with his employment with the Las Vegas District, Plaintiff
worked fighting fires in the State of Washington. Compl. ¶¶ 13-15.2 No indication exists that,
after this assignment, Plaintiff performed any other firefighter work in 2014, or that any
additional firefighter work was needed in 2014.
Plaintiff presents evidence that various supervisors praised his work. See Compl. ¶ 16; Pl.
Aff. ¶ 6. Nonetheless, Plaintiff asserts that, as early as September 2014, Mr. Griego informed
him that a grievance might be filed against him and that, if this happened, Mr. Griego would let
Plaintiff know. Pl. Aff. ¶ 9; Compl. ¶ 17.3 Because no one informed him in 2014 that a grievance
had actually been filed, Plaintiff says he assumed in 2014 that no such grievance had been filed.
Compl. ¶ 19. However, on January 27, 2015, Plaintiff claims that Defendants, through Eugene
Pino (Las Vegas District Fire Management Officer), told him that the Las Vegas District would
no longer take his application to be an Emergency Firefighter/AD. Pl. Aff. ¶ 10; Compl. ¶ 20.
Plaintiff says he then called Mr. Griego, who told him Mr. Delfin made the decision to
keep the District from re-hiring him based on a complaint filed by another AD firefighter.

2

Because Plaintiff explicitly incorporated paragraphs 8-54 of his complaint in his affidavit, see Pl. Aff. ¶
2, the Court considered these portions of Plaintiff’s complaint for summary judgment purposes. See
Lantec, Inc. v. Novell, Inc., 306 F.3d 1003, 1019 (10th Cir. 2002) (a verified complaint may be considered
for purposes of summary judgment).
3
Plaintiff initially indicated that he was told about the grievance in October 2014. Pl. Aff. ¶ 9; Compl. ¶
17. More recently, however, Plaintiff discovered evidence that indicates he first learned of this grievance
in September 2014. Pl. Supplemental Aff. ¶ 5 (Doc. 35-2).

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Compl. ¶ 21; see also Pl. Aff. ¶ 10. Plaintiff says Mr. Griego further informed him that there had
been an investigation. Compl. ¶ 22. This prompted Plaintiff to send a January 27, 2015 email to
Mr. Griego and Mr. Tudor noting that he had not previously been informed about an
investigation and requesting all “records and documents used in the investigation” as well as a
list of all witnesses who were interviewed, and the ultimate findings and conclusions reached.
See Doc. 21-1 Ex. B; see also Compl. ¶ 24.
The next day, Mr. Tudor responded via email that “[n]o formal investigation was
conducted, so there are no documents available to provide you.” Pl. Aff. ¶ 16(a); Compl. ¶ 25;
see also Doc. 21-1 Ex. B. He then provided the names of three witnesses who were interviewed
and noted that “the New Mexico State Forestry Division’s Fire Policy and Procedures Manual
(3.12.4 Hiring) states that ‘[t]he Division employs emergency fire fighters/ADs based on the
Division’s needs, not on the emergency fire fighter’s/AD’s need. At no time shall emergency fire
fighters/ADs consider emergency incident assignments as their primary means of financial
support or a permanent job with guaranteed hours or benefits.’” Doc. 21-1 Ex. B. Finally,
Defendant Tudor informed Plaintiff that he could apply for the 2015 fire season. Id.
Two days later, Mr. Pino reiterated to Plaintiff that, although they were letting him apply
for the 2015 fire season, he would not be hired because of Mr. Delfin’s decision. Compl. ¶ 26;
see also Pl. Aff. ¶ 10. Plaintiff applied on February 3, 2015, but was not hired. Compl. ¶ 28.
As a result, Plaintiff, through counsel, sent an April 3, 2015 letter to Mr. Griego
complaining about Defendants’ treatment of Plaintiff and asking that Plaintiff be provided an
opportunity to refute the allegations that had been made against him. Def. Ex. E (Doc. 18-5). Mr.
Delfin responded in a letter dated April 9, 2015. Def. Ex. A (Doc. 18-1). Mr. Delfin stated that,
based on complaints stemming from Plaintiff’s work in Washington State, “[t]he Division cannot

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employ Mr. Vigil because he poses too great a liability to the Division.” Id. at 5. Mr. Delfin
summarized the complaints as follows:
[Plaintiff] had conflict with the team members, demeaned permanent Forestry
Division employees, displayed favoritism toward employees that he had worked
with in the Las Vegas District office, told crew members how to fill out their
timesheets in a specific way that did not accurately reflect the hours that they
worked, or had crew members change their timesheets after they had been signed
by a division supervisor, that he had the crew members violate the work/rest ratio
in a manner that was unsafe, and finally had crew members drive in violation of
state and federal guidelines and when they had little to no sleep.
Def. Ex. A at 3. He then stated that the Forestry Division had conducted an investigation that
appears to have consisted of five interviews of unidentified persons, all of whom confirmed the
allegations. Id. Mr. Delfin next provided further detail about the allegations and concluded “there
is credible evidence to support the allegations in the complaint.” Id. at 3-5. With regard to why
the Division did not take any disciplinary action against Plaintiff, Mr. Delfin explained, “[t]hese
allegations came to the Division’s attention after [Plaintiff] was no longer employed and after the
fire season . . . [i]f the Division had the ability to discipline him, it would have done so for
misconduct.” Id. at 5. Although the letter did not contain a threat of prosecution, Mr. Delfin
stated, “[t]he alteration of the timesheets constitutes a fourth degree felony.” Id. at 4.
Sometime after Plaintiff received this letter, he sent a letter to New Mexico Governor
Susana Martinez requesting her assistance and asserting that he had documentation that would
demonstrate the complaints against him were inaccurate. See Def. Ex. B (Doc. 18-2). On July 15,
2015, EMNRD Cabinet Secretary David Martin responded to this letter. See Def. Ex. A (Doc.
18-1 at 1). In addition to summarizing portions of the April 9, 2015 letter from Mr. Delfin, this
letter addressed Plaintiff’s lack of due process complaints as follows:
You are not an employee in a career appointment. The nature of the
Administratively Determined Fire Fighter positions is that they are emergency
temporary positions used when additional fire fighters are needed. There is no
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guarantee that you will be hired consistently from one season to another. The
Conditions of Hire Agreement that you signed states that the Division may hire
emergency firefighters whenever it becomes necessary to cope with a sudden and
unexpected nature and is purely temporary in duration. (Attachment B). Since you
are not a permanent career employee, you are not entitled to the due process
protections to which career employees are entitled. You acknowledged this by
signing the 2014 Emergency Firefighter/Administratively Determined (AD)
Staffing Plan Guidance Documents on February 3, 2014.
Def. Ex. A at 1-2. The 2014 Emergency Firefighter/Administratively Determined (AD) Staffing
Plan Guidance Documents Plaintiff signed on February 3, 2014 stated in relevant part:
CONDITIONS OF HIRE
EMNRD, Forestry Division may hire emergency firefighters/ADs whenever it
becomes necessary to cope with a sudden and unexpected emergency caused by a
fire or extreme fire potential. Such hiring is of an uncertain nature and is purely
temporary in duration.
...
DISCIPLINARY ACTION
Failure to adhere to this Staffing Plan, the Forestry Division Fire Policy and
Procedures Manual, EMNRD Policies and Procedures, or the Governor’s Code of
Conduct may result in disciplinary action. Depending on the seriousness of the
offense, disciplinary actions can vary from a verbal warning up to and including
termination of employment. Districts shall document verbal warnings and shall
provide individuals written documentation of other disciplinary actions or
termination of employment.
...
HIRING
At the beginning of each fire season, districts shall review the applications
received and select applicants based on: 1) firefighting qualifications, experience,
and training; 2) documented performance, if prior applicant; 3) overall attitude
and work ethic, if prior applicant; 4) acceptance of the Division’s 2-hour “fill or
kill” concept for incident call out; and 5) willingness to staff either hand crews,
engines, or dispatch offices, depending on the need and circumstances of a district
or incident.
...

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Emergency firefighters are employed based on the Forestry Division’s needs, not
on the emergency firefighter’s need. At no time should emergency firefighters
consider emergency incident assignments as their primary means of financial
support or a permanent job with guaranteed hours. Emergency firefighters are not
eligible for unemployment or unemployment benefits.
Doc. 18-1 at 6-8; Doc. 21-1 at 11.
Plaintiff applied for an Emergency Firefighter position with the Las Vegas District in
2016 and 2017, with the Socorro District in 2016, and with the Returning Heroes Wildland
Firefighter Program in 2016. Compl. ¶¶ 42-46; Pl. Aff. ¶ 24. He was not, however, hired for any
of these positions. Id.
II.

PROCEDURAL HISTORY
On March 10, 2017, Plaintiff filed suit in state court against Defendants for damages and

injunctive relief. Compl. ¶ 1. Plaintiff alleges that Defendants “interfered with [his] employment,
preventing him from earning a living and following his profession” and that they took these
actions “without giving him the opportunity to contest specious allegations . . . and to clear his
name.” Id. On June 19, 2017, Defendants removed the lawsuit to this Court on the basis of
federal question jurisdiction. See Doc. 1.
Plaintiff raises four claims for relief in his complaint. Doc. 1-2 at 17. Specifically, he
asserts that Defendants’ actions violated: (1) his right to due process under the Fourteenth
Amendment; (2) his right to liberty under the Fourteenth Amendment; (3) Article II, § 18 of the
New Mexico Constitution; and (4) an implied written contract established by Defendants’ Fire
Policy and Procedures Manual (FPPM) and other rules, policies, and law. Id.
On September 15, 2017, Defendants moved for summary judgment on all four of
Plaintiff’s claims. Doc. 18. Because Defendants asserted a qualified immunity defense in their
summary judgment motion, the Court granted Defendants’ motion to stay discovery. Doc. 23.

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Plaintiff then requested limited discovery pursuant to Fed. R. Civ. P. 56(d), which the Court
granted in part. See Fed. R. Civ. P. 56(d) (allowing for limited discovery relating to a summary
judgment motion “when facts are unavailable to the nonmovant”); Doc. 24, Doc. 30. The parties
were subsequently given an opportunity to supplement their summary judgment briefing
following completion of the Rule 56(d) discovery. See Doc. 30; Doc. 35 (Plaintiff’s Supp. Resp.
Brief).
Nearly four months after briefing was completed on Defendants’ summary judgment
motion, Plaintiff moved to supplement his complaint pursuant to Fed. R. Civ. P. 15(d). See Doc.
42. Rule 15(d) provides that “[o]n motion and reasonable notice, the [C]ourt may, on just terms,
permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event
that happened after the date of the pleading to be supplemented.” Fed.R.Civ.P 15(d) (emphasis
added). In his motion, Plaintiff seeks to supplement his complaint by adding Mr. Griego as a
defendant for alleged “actions which have taken place after the filing of the complaint, namely in
June and July of this year [2018].” Doc. 42 at 1. While Plaintiff seeks to add Mr. Griego as a
defendant, he does not raise any new claims for relief in his proposed supplemental complaint.
See Doc. 42-1.
III. APPLICABLE LEGAL STANDARDS
A. Summary Judgment
“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 matter of law.” Fed. R.
Civ. P. 56(a). There is no genuine dispute as to any material fact unless the evidence is such that
a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute is genuine “if there is sufficient evidence on each side

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so that a rational trier of fact could resolve the issue either way,” and it is material “if under the
substantive law it is essential to the proper disposition of the claim.” Becker v. Bateman, 709
F.3d 1019, 1022 (10th Cir. 2013) (internal quotation marks omitted). In reviewing a motion for
summary judgment, the Court views the evidence and all reasonable inferences therefrom in the
light most favorable to the non-moving party. S.E.C. v. Thompson, 732 F.3d 1151, 1156-57 (10th
Cir. 2013) (quotation omitted). Initially, the party seeking summary judgment has the burden of
showing that there is no genuine dispute as to any material fact. See Shapolia v. Los Alamos
Nat’l Lab., 992 F.2d 1033, 1036 (10th Cir. 1993). Once the moving party meets its burden, the
non-moving party must show that genuine issues remain for trial. Id.
B. Motions to Supplement under Fed. R. Civ. P. 15(d)
Because supplemental pleadings “set forth new facts in order to update [an] earlier
pleading”, they are “distinct from amendments to pleadings under Rule 15, which relate to
matters that occurred prior to the filing of the original pleading.” See Carter v. Bigelow, 787 F.3d
1269, 1278 (10th Cir. 2015) (quoting 6A Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1504 (3d ed.2014)). “Rule 15(d) gives trial courts broad discretion to
permit a party to serve a supplemental pleading setting forth post-complaint transactions,
occurrences or events.” Walker v. United Parcel Serv., Inc., 240 F.3d 1268, 1278 (10th Cir.
2001). As a general matter, “the standard used by courts in deciding to grant or deny leave to
supplement is the same standard used in deciding whether to grant or deny leave to amend.”
Fowler v. Hodge, 94 F. App’x 710, 714 (10th Cir. 2004); see also Sw. Nurseries, LLC v. Florists
Mut. Ins., Inc., 266 F. Supp. 2d 1253, 1256 (D. Colo. 2003) (stating that “the court should apply
the same standard for exercising its discretion under Rule 15(d) as it does for deciding a motion
under Rule 15(a)”). Therefore, leave to supplement a complaint under Rule 15(d) “should be

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liberally granted unless good reason exists for denying leave, such as prejudice to the
defendants.” Predator Int’l, Inc. v. Gamo Outdoor USA, Inc., 793 F.3d 1177, 1186 (10th Cir.
2015) (quoting Walker, 240 F.3d 1268, 1278 (10th Cir. 2001)). Likewise, leave to supplement
may be denied if the Court determines the proposed amendment or supplementation would be
futile. See Foman v. Davis, 371 U.S. 178, 182 (1962) (leave to amend under Rule 15(a) may be
denied when it would be futile); Glatt v. Chicago Park Dist., 87 F.3d 190, 194 (7th Cir.1996)
(applying the Foman standard to Rule 15(d)).
IV. ANALYSIS
A. Plaintiff’s Fourteenth Amendment Due Process Claim (Count 1) Fails
The Fourteenth Amendment prohibits any state from “depriv[ing] any person of life,
liberty, or property, without due process of law.” U.S. Const. amend. XIV § 1. “In practice, this
simply means that a state can’t decide to take away a party’s property ‘unless fair procedures are
used in making that decision.’” Chiddix Excavating, Inc. v. Colorado Springs Utilities, --- F.
App’x ---, 2018 WL 2947923, at *2 (10th Cir. 2018) (unpublished) (quoting Mitchell v. City of
Moore, 218 F.3d 1190, 1198 (10th Cir. 2000)). In order to “‘prevail on either a procedural or
substantive due process claim, a plaintiff must first establish that a defendant’s actions deprived
plaintiff of a protectible property interest.’” Teigen v. Renfrow, 511 F.3d 1072, 1078 (10th Cir.
2007) (quoting Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir. 2000).
“In the context of a procedural due process claim, it is only after the plaintiff first demonstrates
the existence and deprivation of a protected property interest that the plaintiff is constitutionally
entitled to an appropriate level of process.” Teigen, 511 F.3d at 1078.
“[T]he Supreme Court defines ‘property’ in the due-process context very broadly, as a
legitimate claim of entitlement to some benefit.” Chiddix Excavating, Inc., 2018 WL 2947923, at

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*2 (internal citation omitted). “An individual has a property interest in a benefit for purposes of
due process protection only if he has a ‘legitimate claim of entitlement’ to the benefit, as
opposed to a mere ‘abstract need or desire’ or ‘unilateral expectation.’” Teigen, 511 F.3d 1072,
1078-79 (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972)). “Such an
interest arises not from the Due Process Clause of the Constitution itself, but is created by
independent sources such as a state or federal statute, a municipal charter or ordinance, or an
implied or express contract.” Teigen, 511 F.3d at 1079 (internal citation omitted); see also Hyde
Park Co., 226 F.3d at 1210 (“Property interests are created and their dimensions are defined by
existing rules and understandings that stem from an independent source such as state law-rules or
understandings that secure certain benefits and that support claims of entitlement to those
benefits.”).
In this case, Plaintiff’s due process claim under the Fourteenth Amendment (Count 1)
turns on whether he can establish that he possessed a protected property interest in his
employment that due process protects. See Coleman v. Utah State Charter Sch. Bd., 673 F.
App’x 822, 827 (10th Cir. 2016) (unpublished) (stating that “[a] plaintiff must show a right to
continued employment to establish a property interest in public employment that due process
protects.”). Because Plaintiff worked for Defendants as an Emergency
Firefighter/Administratively Determined (EF/AD) in 2014, his argument that he had a property
interest in his employment is stronger for that year than it is for subsequent years. Thus, the
Court analyzes Plaintiff’s 2014 due process claim separately from his claims that arise from
alleged conduct occurring after 2014.
i. Plaintiff Suffered No Deprivation of Property in 2014
The parties dispute whether Plaintiff’s contract for employment during the 2014 fire

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season created a property interest. For purposes of the present analysis, the Court assumes that
Plaintiff had a property interest in his continued 2014 employment. Given this assumption, the
Court must next ask whether Defendants deprived Plaintiff of this property interest. Without
such a deprivation, there can be no due process violation. See Teigen, 511 F.3d at 1078 (plaintiff
must demonstrate deprivation of a protected property interest to maintain a Fourteenth
Amendment procedural due process claim).
The parties do not dispute that Plaintiff was assigned to fight fires in Washington through
August 2014. Plaintiff does not assert, much less present evidence, that a need for emergency
firefighter work existed at any point during the remainder of 2014. Thus, Plaintiff has neither
asserted nor provided evidence that Defendants deprived him of employment during 2014. Nor
does Plaintiff allege or present evidence that he received any sort of reprimand or other
discipline in 2014. Indeed, he acknowledges that, because he was not notified of any formal
complaint having been filed against him in 2014, he assumed nothing came of the complaints
Mr. Griego said might be filed against him. See Compl. ¶¶ 17, 19. Thus, even assuming Plaintiff
had a property interest in 2014, Plaintiff has not presented evidence that Defendants deprived
him of that interest in 2014.
Plaintiff argues, however, that even if Defendants did not take any disciplinary action
against him in 2014, the conduct in question occurred in 2014 and Defendants cannot deprive
Plaintiff of the right to contest findings regarding that alleged conduct by waiting until 2015 to
take any action against Plaintiff. See Doc. 21 at 7. In support of this argument, Plaintiff cites
West v. Grand County, 967 F.2d 362, 367-68 (10th Cir. 1992). West, however, concerns an
entirely different situation. The Tenth Circuit in West held that a sham reduction in force directed
at one employee does not allow the employer to circumvent the pre-termination hearing to which

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the employee would be entitled in a non-reduction of force termination. See West, 967 F.2d at
367-68. The present case, however, does not involve a sham reduction of force. Again, no
evidence exists that any emergency firefighters were needed during the remainder of 2014 or that
any emergency firefighters worked for the Las Vegas District after August 2014.
In addition to West being distinguishable, undisputed facts show that Defendants did not
in 2015 discipline or reprimand him for conduct that occurred in 2014. Defendants did refuse to
hire Plaintiff after 2014 based on their determination that the 2014 allegations against Plaintiff
were credible. Refusing to hire a former employee, however, is different than disciplining a
current employee. The fact that Defendants never disciplined Plaintiff for his alleged 2014
conduct is fatal to Plaintiff’s argument that Defendants deprived him of his due process rights in
2014. The question left unanswered – whether Defendants’ subsequent refusal to hire Plaintiff
constituted a due process violation – is the one the Court turns to next.
ii. After 2014, Plaintiff Had No Property Interest Giving Rise to Due Process
Protections
Defendants do not dispute that Plaintiff worked as an EF/AD with the Las Vegas District
for eight straight seasons leading up to 2015. Nor do Defendants dispute that, based on the 2014
allegations that Plaintiff disputes, Defendants have since refused to hire him. Although
Defendants assert that their consideration of Plaintiff’s letters constituted a “sufficient name
clearing hearing” (Doc. 18 at 12), their primary argument is that Plaintiff’s 2014 temporary
employment ended without discipline and Plaintiff thereafter had no constitutionally protected
right to be re-hired. In response, Plaintiff proffers several arguments as to why he retained a
property interest in EF/AD employment after 2014.
Plaintiff argues that his 2014 employment did not end “before persons could apply for the
2015 EF/AD positions in early 2015.” Doc. 35 at 1. In support of this argument, Plaintiff notes
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that he was hired for the 2014 “fire season” and then provides evidence regarding the
indeterminate period of a fire season. The Court agrees that Plaintiff’s 2014 employment did not
contain a definite end date. However, drawing all reasonable factual inferences in favor of
Plaintiff, the Court concludes that Plaintiff’s temporary employment for the 2014 fire season
ended no later than December 31, 2014.
The process Defendants engaged in to fill EF/AD positions in 2015 further supports the
conclusion that 2014 EF/AD firefighters did not have their employment carried over into 2015.
Rather than simply carrying employees over from 2014, Defendants returned to square one. See
Def. Ex. D (Doc. 18-4 at 1-2). They solicited applications, received applications, made their
hiring decisions, and signed new contracts. Id. This process indicates a break in employment
rather than continuous EF/AD employment. Because the evidence Plaintiff presents about the
length of the 2014 fire season cannot support a conclusion that Plaintiff’s employment continued
into 2015, Plaintiff’s argument that there was no break in employment from year to year fails.
Even if a break in EF/AD employment occurs from year to year, however, Plaintiff next
argues that he enjoyed tenure similar to what teachers enjoy from one school year to the next.
Doc. 21 at 7-8. Plaintiff relies on Perry v. Sindermann, 408 U.S. 593 (1972) to support his
argument. Perry involved a teacher who a state college employed for four successive years,
under a series of one-year contracts. Id. at 594. When the college declined to offer the teacher a
fifth one-year contract, with no explanation or opportunity to be heard, the teacher brought a
lawsuit alleging, among other things, that the college violated his Fourteenth Amendment
procedural due process rights. Id. at 595. The teacher asserted that the college had a de facto
tenure policy and, in support, cited to language in the college’s official Faculty Guide that stated,
“the College wishes the faculty member to feel that he has permanent tenure as long as his

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teaching services are satisfactory and as long as he displays a cooperative attitude toward his coworkers and his superiors, and as long as he is happy in his work.” Id. at 599-600. Language
such as this, the Court held, was enough to get the teacher past summary judgment. Id. at 602
(“respondent . . . might be able to show from the circumstances of this service – and from other
relevant facts – that he has a legitimate claim of entitlement to job tenure.”).
In so holding, however, the Supreme Court reiterated its holding in Board of Regents v.
Roth, that “the Constitution does not require opportunity for a hearing before the nonrenewal of a
nontenured teacher’s contract, unless he can show that the decision not to rehire him somehow
deprived him of an interest in ‘liberty’ or that he had a ‘property’ interest in continued
employment, despite the lack of tenure or a formal contract.” Id. at 599 (citing Board of Regents
v. Roth, 408 U.S. 564 (1972)). The terms of employment in Roth, unlike those in Perry, provided
a specific termination date and “made no provision for renewal whatsoever.” Roth, 408 U.S. at
578. Similarly, in Roth, “no state statute or University rule or policy . . . secured interest in reemployment or [] created any legitimate claim to it.” Id. As a result, while the teacher in Roth
might have had an “abstract concern in being rehired [] he did not have a property interest
sufficient to require the University authorities to give him a hearing when they declined to renew
his contract of employment.” Id. Reading Roth and Perry together, it becomes clear that the
salient question in the present case is whether Plaintiff has some “independent source such as
state law – rules or understandings that secure certain benefits and that support claims of
entitlement to those benefits.” Roth, 408 U.S. at 577.
Plaintiff has failed to cite an independent source upon which he can hinge a property
interest to be re-hired in 2015. Plaintiff’s attempt to hinge his asserted property interest on
provisions that applied in 2014 fails because Plaintiff was not disciplined or fired in 2014. Next,

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Plaintiff points out that he had been hired as an EF/AD for the past eight years. Doc. 21 at 8. For
each of these years, however, Plaintiff had to re-apply and the evidence indicates that Defendants
consistently made clear to Plaintiff that his employment each year was only temporary
employment. Plaintiff has cited no case that indicates these facts would establish a property
interest.
Plaintiff’s representation that Mr. Pino, who was the Las Vegas District’s Fire
Management Officer, would have liked to rehire him does not change this result. Doc. 21 at 8.
Plaintiff does not allege that Mr. Pino actually offered him the job after 2014 and, regardless of
what Mr. Pino would have liked to do, his wishes were subordinate to those above him who
chose not to rehire Plaintiff. Thus, Plaintiff is more similar to the teacher in Roth, who could
demonstrate no property interest in rehire, than to the teacher in Perry, who established a
property interest through language contained in his employer’s official Faculty Guide.
As an alternative argument, however, Plaintiff asserts that the EMNRD provided the Las
Vegas District with discretion to choose its own EF/ADs and, therefore, the EMNRD had no
authority to interfere with Mr. Pino’s hiring preferences. Doc. 21 at 8. In support of this position,
Plaintiff cites section 3.12.4 of the Fire Policy and Procedures Manual which states:
The district shall select the required number of engine bosses, engine
crewmembers, and support staff and assign an engine boss and crewmembers to
each engine. If the district is hiring engine crewmembers to be engine operators it
shall designate specific crewmembers as engine operators. The district shall
determine fire danger conditions and staff accordingly.
Id. (citing doc. 18-4 at 2-3 (emphasis added by Plaintiff)). This argument is different than other
arguments in the same section of Plaintiff’s brief. Plaintiff’s argument here is not that
Defendants deprived him of property (employment) he already had but, rather, that Defendants
interfered with his ability to obtain employment that he wanted. This argument is more similar to

16

the one Plaintiff makes in his motion to supplement his complaint: that Truax v. Raich, 239 U.S.
33 (1915) and its progeny recognize that the government cannot interfere with a person’s ability
to obtain employment from a third party. The problem with this argument as it applies to work
for the Las Vegas District is that the Las Vegas District is not a third party. Instead, the Las
Vegas District is a division of, and reports to, the EMNRD. Thus, Plaintiff is essentially arguing
that the EMNRD interfered with its own hiring decision.
Further, Plaintiff’s own evidence indicates that while upper level management at the
EMNRD may have generally delegated hiring decisions to the individual Districts, it retained
ultimate authority over hiring decisions. For instance, Plaintiff acknowledged in the first
paragraph of his affidavit that the Las Vegas District is a subordinate division of the EMNRD.
Pl. Aff. ¶ 1 (“I was formerly employed as an Emergency Firefighter/Administratively
Determined (EF/AD) with Las Vegas Forestry District of the EMNRD.”) (emphasis added). In
his complaint, Plaintiff averred that the Deputy Secretary of the EMNRD was “responsible
generally for overseeing the Department’s Forestry Division. He was responsible for all aspects
of the Forestry Division’s internal operations, including supervision of staff, as well as programs
(including Wildfire Management).” Doc. 1-2 at 2. Mr. Pino, who was in charge of the Las Vegas
District, further acknowledged that his ability to hire whoever he wanted was limited by the
desires of those above him at the EMNRD. See Pl. Aff. ¶ 10 (“In January 2015, prior to the 2015
fire season, Mr. Pino advised me that he could not hire me or call me in for that season because
the Santa Fe office (Defendants Tudor and Delfin) would not allow him due to the time fraud
allegation that had been made against me. Then in February, he told me Defendants were going
to allow me to turn in the EF/AD application (which I did on or around March 3rd), but they still
would not allow him to hire me because of the allegations.”). And, when Plaintiff retained an

17

attorney to pursue getting him hired in 2015, his attorney wrote to the EMNRD’s Protection
Bureau Chief, not the head of the Las Vegas District. See Def. Ex. E (Doc. 18-5). Considering all
of this, even when drawing all reasonable factual inferences in favor of Plaintiff, no reasonable
jury could conclude that the EMNRD, through section 3.12.4 of the Fire Policy and Procedures
Manual, conferred on the Las Vegas Forestry District a non-revocable delegation of authority to
hire whoever it wanted, owing no deference to contrary decisions of those in upper management.
This conclusion reduces Plaintiff’s argument to the following: upper level management at
the EMNRD violated the United States’ Constitution when it prevented lower level management
from hiring Plaintiff. For this argument to succeed, Plaintiff would have to present evidence that
he had a right to be hired. Plaintiff has not done this. As a result, regardless of whether upper
level management’s directive not to hire Plaintiff was fair or unfair, it did not violate the United
States’ Constitution.
In sum, the Court concludes that no reasonable juror could find that Plaintiff suffered an
adverse employment action in 2014 that would give rise to due process protections and that,
subsequent to 2014, no reasonable juror could conclude that Plaintiff had a property right.
Therefore, the Court grants Defendants’ motion for summary judgment with regard to Plaintiff’s
due process claim under the Fourteenth Amendment (Count 1).
B. Plaintiff’s Fourteenth Amendment Deprivation of Liberty Claim (Count 2) Fails
Because No Evidence Exists That Defendants Published the Alleged Defamatory
Statements Outside State Agencies
The Court next considers Plaintiff’s claim that Defendants deprived him of his liberty
interest without due process of law in violation of the Fourteenth Amendment (Count 2).
Plaintiff specifically alleges that Mr. Delfin and EMNRD Cabinet Secretary David Martin made
statements in letters they wrote accusing him of “dishonesty, [and] more precisely of felony

18

criminal fraud” and “of jeopardizing the lives of his crew members”. See Doc. 21 at 10. Plaintiff
contends that Defendants sent these letters to other forestry districts within the EMNRD and
New Mexico state programs with a “directive not to hire” Plaintiff and that in so doing,
Defendants foreclosed Plaintiff from obtaining other employment opportunities. Doc. 21 at 1415 (alleging lost work opportunities with Las Vegas district (2016-2017), Socorro district (2016),
and Returning Heroes Program (2016)).
The parties agree that Workman v. Jordan, 32 F.3d 475 (10th Cir. 1994) controls the
Court’s analysis of Plaintiff’s deprivation of liberty claim. In Workman, the Tenth Circuit
recognized that a person has a “liberty interest in his good name and reputation as it affects his
protected property interest in continued employment.” 32 F.3d at 480 (citing Paul v. Davis, 424
U.S. 693 (1976)); see also McDonald v. Wise, 769 F.3d 1202, 1212 (10th Cir. 2014) (“[a] public
employee has a liberty interest in his good name and reputation as they relate to his continued
employment”). Under Workman, “[t]he government infringes upon that interest when: (1) it
makes a statement that impugns the good name, reputation, honor, or integrity of the employee;
(2) the statement is false; (3) the statement is made during the course of termination and
forecloses other employment opportunities; and (4) the statement is published, in other words
disclosed publically.” McDonald, 769 F.3d at 1212 (citing Workman, 32 F.3d at 481) (brackets,
footnote, and internal quotation marks omitted). “These elements are not disjunctive, all must be
satisfied to demonstrate deprivation of the liberty interest.” Workman, 32 F.3d at 481.
Although Defendants argue in their summary judgment motion that Plaintiff fails to meet
at least three of the Workman elements, the Court focuses on Defendants’ contention that Mr.
Delfin and Cabinet Secretary Martin’s letters were never published. See Doc. 18 at 10. In his
response brief, Plaintiff acknowledged that the Tenth Circuit has held that “intra-governmental

19

dissemination, by itself, falls short of the Supreme Court’s notice of publication: ‘to be made
public’.” See Doc. 21 at 15 (quoting Asbill v. Housing Auth. of Choctaw Nation, 726 F.2d 1499,
1503 (10th Cir. 1984). At oral argument, Plaintiff conceded that Asbill is controlling and that his
evidence is limited to intra-governmental dissemination of the letters. See Tr. at 57.
Consequently, because no evidence exists that Defendants published the alleged defamatory
statements outside of state governmental entities, the Court concludes that Plaintiff is unable to
demonstrate deprivation of a liberty interest under Workman. Defendants are therefore entitled to
summary judgment on Plaintiff’s Fourteenth Amendment deprivation of liberty claim (Count 2).
C. Plaintiff’s State Constitutional Claim (Count 3) Fails
Plaintiff’s third claim is a due process claim under Article II, § 18 of the New Mexico
Constitution. In New Mexico, when courts analyze “a state constitutional provision with a
federal analogue,” courts apply an “interstitial approach.” Morris v. Brandenburg, 2016-NMSC027, ¶ 19, 376 P.3d 836. Under this approach, courts “first examine whether an asserted [state
constitutional] right is protected under an equivalent provision of the United States
Constitution.” Id. “If the right is protected, then, under the New Mexico Constitution, the claim
is not reached.” Id. “The burden is on the party seeking relief under the state constitution to
provide reasons for interpreting the state provisions differently from the federal provisions when
there is no established precedent.” Id. (internal citation omitted).
“In language substantively indistinguishable from that of the Fourteenth Amendment to
the United States Constitution, Article II, Section 18 of the New Mexico Constitution states, ‘No
person shall be deprived of life, liberty or property without due process of law; nor shall any
person be denied equal protection of the laws.’” State ex rel. Torrez v. Whitaker, 2018-NMSC005, ¶ 87, 410 P.3d 201. The Fourteenth Amendment is the federal analogue to the due process

20

provision of Article II, § 18 of the New Mexico constitution. See Morris, 2016-NMSC-027, ¶ 18
(noting that the “state constitution’s due process guarantees are analogous to the due process
guarantees provided under the United States Constitution.”).
In this case, Plaintiff does not present any authority that his due process rights under the
state constitution would differ from the standard set forth in the analysis of these rights under the
Fourteenth Amendment, nor does he contend that the state constitution provides broader due
process protections than its federal counterpart. See e.g., E. Spire Communications, Inc. v. Baca,
269 F.Supp.2d 1310, 1324 (D.N.M. 2003) (using the federal standard to analyze the plaintiff’s
claims for violation of substantive due-process rights under the New Mexico Constitution
because the plaintiff did not present any authority that the standard under the New Mexico
Constitution would differ from the standard under the United States Constitution).
Therefore, the Court’s analysis of Plaintiff’s Fourteenth Amendment claims applies
equally to Plaintiff’s state constitutional claim.4 Plaintiff’s claim under Article II, Section 18 of
the New Mexico constitution (Count 3) is therefore also subject to summary judgment.
D. Plaintiff’s Breach of Contract Claim (Count 4) Fails
Defendants lastly seek summary judgment on Plaintiff’s claim that Defendants breached
an implied written contract “established by Defendants’ Fire Policy and Procedures Manual
(FPPM) and other rules, policies, and law.” Compl. ¶¶ 60, 66; Doc. 18 at 14-15. Defendants
contend that they are entitled to summary judgment because there is no evidence supporting the

4

Plaintiff specifically seeks injunctive relief with regard to his state constitutional claim, i.e., that the
Court “enjoin Defendants from not allowing the Las Vegas District from hiring him as an EF/AD in the
future.” See Doc. 21 at 18. As Plaintiff acknowledged at the hearing, the success of this claim hinges on
whether there is a constitutionally protected property interest. As set forth in the analysis of Plaintiff’s
Fourteenth Amendment claim, the Court has concluded that no reasonable juror could conclude that
Plaintiff had a property right after 2014. Thus, for the same reasons that applied to his federal
constitutional due process claims, Plaintiff’s state due process constitutional claim fails as well.

21

existence of a valid written contract or an enforceable implied contract between Plaintiff and
Defendants subsequent to 2014. See Doc. 18 at 15. The Court agrees.
Plaintiff has presented evidence of a written employment contract for 2014. However, as
discussed earlier, Plaintiff was assigned to fight fires in Washington through August 2014 and he
did not present evidence that a need for firefighter work existed at any point during the
remainder of 2014. Thus, Plaintiff has neither asserted nor presented evidence that there was a
breach of the written contract for 2014. The Court concludes that no reasonable juror could find
that there was a breach of the 2014 contract.
Subsequent to 2014, however, Plaintiff asserts the existence of an implied written
contract for employment based on his 2014 employment contract and the FPPM Plaintiff
received in connection with his 2014 employment. See Compl. ¶¶ 60, 66. “Under New Mexico
law, whether an implied contract was created is generally a question of fact.” Sullivan v. Am.
Online, Inc., 219 F. App'x 720, 721 (10th Cir. 2007) (unpublished). “Thus, only if the evidence
is insufficient to create a genuine issue of material fact regarding whether an implied contract
was established is summary judgment appropriate. Id. at 721-22 (internal citation and quotation
marks omitted). “An implied contract is created only where an employer creates a reasonable
expectation of continued employment.” Id. “An employer creates an implied contact where the
employer’s action ‘was intended, or reasonably could be interpreted by [the employee] to be
confirmation of an implied contract or a modification of the employment relationship.’” Id.
(citing Hartbarger v. Frank Paxton Co., 1993-NMSC-029, 857 P.2d 776). “A promise, or offer,
that supports an implied contract might be found in written representations such as an employee
handbook, in oral representations, in the conduct of the parties, or in a combination of
representations and conduct.” Hartbarger, 1993-NMSC-029, ¶ 6.

22

In this case, Plaintiff’s 2014 employment contract could not have given rise to an implied
contract for employment in subsequent fire seasons. Plaintiff signed a conditions of hire
agreement attesting to his understanding that his emergency firefighter/AD position was “of an
uncertain nature and [] purely temporary in duration”. (Doc. 18-1 at 6). In addition, the FPPM
reiterated that Plaintiff’s 2014 employment was of “a purely temporary duration based on
Division needs and preparedness levels.” Def. Ex. D (Doc. 18-4). The FPPM also provided that
emergency firefighters/ADs were not to consider “emergency incident assignments as their
primary means of financial support or a permanent job with guaranteed hours or benefits.” Id. at
3. In light of these unequivocal written declarations of the temporary nature and limited duration
of Plaintiff’s 2014 emergency firefighter/AD appointment, the Court concludes that Plaintiff
could not have reasonably expected that his 2014 contract would give rise to continued
employment in subsequent fire seasons.
Nor could provisions of the FPPM gave rise to an implied employment contract. In his
response brief and at oral argument, Plaintiff failed to point to any particular provision of the
FPPM that he could reasonably have viewed as confirmation of continued employment as an
emergency firefighter/AD in subsequent fire seasons. As indicated above, the FPPM repeatedly
stated that EF/AD appointments were temporary in nature and limited in duration. Although
Plaintiff elsewhere cites to FPPM provisions concerning the hiring process, he does not point to
any aspect of those hiring provisions that could give rise to an implied employment contract.
Thus, Plaintiff’s fourth claim fails because Plaintiff has not provided evidence of a
written contract. Defendants are therefore entitled to summary judgment as to this claim.
E. Plaintiff’s Motion to Supplement is Denied because the Supplementation Plaintiff
Seeks to His Complaint Would Be Futile
Plaintiff’s complaints about Defendants’ actions do not stop with their failure to hire him
23

– he also argues that, to this day, there is interference with his property right to engage in private
employment. Specifically, he alleges that at two different times in 2018, Donald Griego, who
replaced Defendant Delfin as New Mexico’s State Forester, interfered with contracts Plaintiff
had with non-state entities. Plaintiff argues that this interference in the absence of due process is
unconstitutional because the United States Supreme Court has long recognized the “right to earn
a livelihood and to continue in employment unmolested.” Doc. 45 at 8 (quoting Truax v. Raich,
239 U.S. 33, 38 (1915)). As a result, Plaintiff seeks to supplement his complaint to include these
recent allegations against Mr. Griego. Doc. 42. Defendants argue that Plaintiff’s proposed
supplementation would be futile because Mr. Griego is entitled to qualified immunity.
Ultimately, the Court agrees with Defendants that, even taking Plaintiff’s allegations as true, the
law is not clearly established that Mr. Griego violated Plaintiff’s Fourteenth Amendment right to
due process.
i. Factual Allegations
Plaintiff states that on June 1, 2018, he entered into a contract with the Rainsville
Volunteer Fire Department in Mora County, New Mexico to provide firefighting services and
that he then was released prematurely from this service. Doc. 42-1 at ¶¶ 47A, 47C. Similarly, he
asserts that on July 7, 2018, the United States Forest Service hired his company to provide
equipment and services to combat a fire and that he also was prematurely released from this
service. Id. at ¶¶ 47E, 47G. Plaintiff asserts that Mr. Griego cut short both of these employment
opportunities. Id. at ¶ 47H. He does not, however, say exactly what he believes Mr. Griego did.
Rather, Plaintiff asserts that after being released from his July employment he received a
call from an employee of EMNRD’s Las Vegas District who told Plaintiff he overheard
Returning Heroes Program Supervisor Stephanie Griego speaking to another EMNRD employee

24

and that this discussion involved getting Plaintiff released from the July employment. Id. at ¶
47F. Plaintiff then states, “[u]pon information and belief Donald Griego, State Forester, told
[Stephanie] Griego and other of EMNRD’s employees to have Plaintiff released from the [July]
fire, and was also responsible for his release from the [June] fire. Mr. Griego was the only person
who could have authorized these releases.” Id. at ¶ 47H. Significantly, Plaintiff makes no
specific allegations that tie Stephanie Griego’s alleged statements to Donald Griego other than to
assert that Donald Griego had taken actions against Plaintiff in 2014 and was likely the only
EMNRD employee with authority “to make decisions regarding the interference with the
contracts entered into between Mr. Vigil and third parties not part of the State of New Mexico
executive branch.” Id. at ¶ 47I.
ii. Analysis
“Qualified immunity balances two important interests—the need to hold public officials
accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties reasonably.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009). The defense of qualified immunity “is available only in
suits against officials sued in their personal capacities, not in suits against . . . officials sued in
their official capacities.”5 Cox v. Glanz, 800 F.3d 1231, 1239 n.1 (10th Cir. 2015). “[W]hen a
defendant has raised qualified immunity as a defense, the plaintiff must establish (1) that the
defendant’s action violated a federal constitutional or statutory right; and (2) that the right
violated was clearly established at the time of the defendant’s actions.” Grissom v. Roberts, 902

5

Plaintiff failed to explicitly indicate in either his motion or his proposed supplemental complaint
whether he seeks to sue Mr. Griego in his individual capacity, his official capacity, or both. However, in
his reply brief, Plaintiff acknowledged this inadvertent error and stated that he meant to allege claims
against Mr. Griego “individually and in his official capacity” in his supplemental complaint. See Doc. 45
at 3.

25

F.3d 1162, 11 (10th Cir. 2018). “If the plaintiff fails to satisfy either part of the two-part inquiry,
a court must grant the defendant qualified immunity. The court has discretion to decide which of
the two prongs of the qualified-immunity analysis to address first.” Id. (internal citations
omitted).
The Court begins at the second prong of the qualified immunity analysis – whether Mr.
Griego’s alleged conduct violates a clearly established right. Plaintiff asserts that the United
States Supreme Court has long recognized the “right to earn a livelihood and to continue in
employment unmolested” and that Defendant Griego’s interference with his ability to maintain
employment with non-state entities has denied him property without due process. Doc. 45 at 8
(quoting Truax v. Raich, 239 U.S. 33, 38 (1915)). Truax, however, does not clearly establish
such a general right. The passage Plaintiff quotes reads in full, “[t]he right to earn a livelihood
and to continue in employment unmolested by efforts to enforce void enactments should
similarly be entitled to protection in the absence of adequate remedy at law.” Truax, 239 U.S. at
33 (emphasis added). In a recent unpublished opinion, the Tenth Circuit read Truax narrowly,
noting that it has never extended the right against arbitrary interference with private employment
“beyond the circumstances encountered by the Supreme Court” and that, it has never explicitly
“recognized that arbitrary government interference with private employment can be a plausible
claim based on a recognized constitutional theory.” Coleman v. Utah State Charter Sch. Bd., 673
F. App’x 822, 833 (10th Cir. 2016) (unpublished).
While Coleman is unpublished and therefore non-binding, it is persuasive. First, it
thoroughly analyzes relevant case precedent setting forth when government interference with
private employment constitutes a well-established constitutional violation. Second, Coleman
arises from a procedural posture similar to the present case: the plaintiff in Coleman sought to

26

amend her complaint to add a claim of governmental interference with private employment and
appealed the district court’s denial of her motion. Id. at 826.
In Coleman, the founder of a charter school sought to supplement her complaint to allege
that the State Charter Board violated her due process rights when it interfered with her ability to
continue to serve on the board of directors. Id. at 826. Citing Truax, the Tenth Circuit recognized
that “the Supreme Court has established a right against arbitrary governmental interference with
private employment and that it is a recognized constitutional theory through which claims can
plausibly be brought.” Coleman, 673 F. Appx. at 833. However, it continued, “[t]he right is
heavily fact-dependent . . ..” Id. Noting the Supreme Court’s admonition “not to define clearly
established law at a high level of generality”, the Tenth Circuit concluded that none of the
settings present in previous Supreme Court cases concerned education in public and charter
schools and that “[t]o extend those cases to the charter school setting would go too far, especially
given the Supreme Court’s admonition to avoid precisely that kind of expansive holding.” Id.
(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011).
In denying the plaintiff’s motion to amend, the Coleman court considered many of the
same legal arguments Plaintiff now makes in the present case. For instance, the Tenth Circuit
took note of Fernandez v. Taos Mun. Schs. Bd. Of Educ., 403 F.Supp. 2d 1040, 1043 (D.N.M.
2005), several other district court cases from the Tenth Circuit, and several other circuit court
cases that interpreted Truax more broadly. The Tenth Circuit concluded, however, that these
non-binding sources did not establish a clearly defined constitutional right under the facts
presented.
Similarly, Plaintiff’s failure to plead facts similar to Supreme Court precedent is fatal to
his motion to supplement. See Coleman, 673 F. App’x at 833 (“The right is heavily fact-

27

dependent, though, and to overcome any claim of qualified immunity, a plaintiff would have to
plead facts far more similar to Supreme Court precedent than those that Coleman has
presented.”). Plaintiff generally alleges, based on “information and belief”, that Mr. Griego had
Plaintiff released from working on two fires in 2018. Doc. 41-1 at ¶ 47H. But, how did Mr.
Griego accomplish this? This question matters because, for it to be actionable, government
interference with private employment must be arbitrary. Coleman, 673 F. App’x at 831. Further,
as the case on which Plaintiff primarily relies notes, “[p]rivate conduct generally does not occur
under color of state law, but there are exceptions and a State may be responsible where it has
exercised coercive power or has provided such significant encouragement, either overt or covert,
that the choice must in law be deemed to be that of the State.” Fernandez v. Taos Mun. Sch. Bd.
of Educ., 403 F.Supp.2d 1040, 1041 (D.N.M. 2005).6 Plaintiff’s proposed complaint does not
allege facts sufficient to demonstrate arbitrariness or coercion.
Take the June fire first. Plaintiff asserts that the Rainsville Volunteer Fire Department
released him without stating a reason. Doc. 41-1 at ¶ 47C. He does not allege who from the state
government allegedly talked to the Rainsville Volunteer Fire Department or what anyone from
the state government said or did to have him released. Instead, he asserts that, a month after he
was released, a former colleague overheard Stephanie Griego discussing getting Plaintiff
released from the July fire and, the next day, Plaintiff was released from the July fire. Doc. 41-1
at ¶ 47F. From this, Plaintiff infers that Donald Griego “told [Stephanie] Griego and other of

6

The Court is aware that Plaintiff did not work for a private employer. During the first fire he worked for
the Rainsville Volunteer Fire Department, and during the second fire, he worked for the United States
Forest Service. Doc. 41-2 at ¶¶ 47A, 47E. However, Plaintiff is not asserting that the non-State
governments for whom he worked did anything wrong. Instead, he is alleging that the State government
interfered with his employment with non-State government entities. Whether the State government
allegedly interfered with Plaintiff’s employment with a private entity or a non-State public entity is
immaterial. As the third party employer, the non-State governments for which Plaintiff worked are like
private employers.

28

EMNRD employees to have Plaintiff released from the Morris Creek fire [the July fire], and was
also responsible for his removal from the Ute park fire [the June fire].” Doc. 41-1 at ¶ 47H.
While a plaintiff is allowed to allege facts based on “information and belief”, “[f]actual
allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic
Corp. et al. v. Twombly, 550 U.S. 544, 555 (2007); see also Al-Owhali v. Holder, 687 F.3d 1236,
1242-43 (10th Cir. 2012) (“At bottom, Al-Owhali claims without substantiation that he believes
there is a secret policy in place that prevents him from obtaining the book. Such a claim, without
more, is simply too speculative.”). Plaintiff’s conclusion that because a friend overheard
Stephanie Griego talking about Plaintiff being released from the July fire, that Donald Griego
must have been behind Plaintiff being released from a separate fire one month earlier is the type
of speculative conclusion the Court in Twombly found cannot support a claim. Moreover, even if
Mr. Griego did say or do something that caused Rainsville to release Plaintiff, Plaintiff has not
alleged that what Mr. Griego said or did was arbitrary or coercive. As a result, it would be futile
to allow Plaintiff to file his proposed supplemental complaint to assert a claim for
unconstitutional interference with regard to the June fire.
With regard to the July fire, Plaintiff at least establishes a temporal connection between
Stephanie Griego’s alleged comments and his removal from this fire the next day. Plaintiff
completely fails, however, to allege how Mr. Griego, a state employee, could coerce or otherwise
cause the United States Forest Service to take any action it was not otherwise inclined to take.
Plaintiff has not cited, and the Court is not aware of, any successful governmental interference
case in which the government defendant had no apparent means to regulate, control, or exert
influence over the third-party employer. For Plaintiff’s claim to succeed, he would have to allege
how a State EMNRD employee exerted so much influence over the United States that the actions

29

of the United States were attributable to the State EMNRD. Because Plaintiff has not done this,
allowing his proposed claim related to the second fire to proceed would also be futile.
Moreover, regardless of whether the June or July fire is at issue, Mr. Griego can only be
found liable to Plaintiff if he was placed on fair notice at the time of his alleged conduct that
such conduct would violate Plaintiff’s constitutional rights. Coleman teaches that this
determination is fact specific. Plaintiff, however, does not describe the specific conduct he
alleges Mr. Griego took. Plaintiff’s general allegation that Mr. Griego was responsible for his
removal falls short of the type of specific allegation Plaintiff must make to state a claim. Given
the numerous legitimate means through which a state employee could be responsible for a person
losing a job with a third-party employer (such as a simple poor reference), the Court cannot say it
is clearly established that Mr. Griego’s unspecified alleged conduct violated a constitutional
right.
Thus, Plaintiff’s proposed supplementation to add Mr. Griego in his individual capacity is
futile because, even accepting the facts Plaintiff seeks to allege as true, Mr. Griego would be
entitled to qualified immunity. To the extent Plaintiff seeks to sue Mr. Griego in his official
capacity, such a claim is in reality a claim against the EMNRD. See Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 71 (1989) (explaining that “a suit against a state official in his or her official
capacity is not a suit against the official but rather is a suit against the official’s office”). “A
municipality may be held liable under § 1983 when a plaintiff shows ‘the existence of a
municipal policy or custom’ and ‘a direct causal link between the policy or custom and the injury
alleged.” Allen v. Lang, 2018 WL 3045352, at *5 (10th Cir. June 20, 2018) (quoting Hinton v.
City of Elwood, 997 F.2d 774, 782 (10th Cir. 1993)); see also Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 691 (1978). In his proposed supplemental complaint, Plaintiff fails to allege that Mr.

30

Griego acted in accordance with any EMNRD custom or policy. Because Plaintiff has not
alleged an official policy or practice to establish liability under Monell, the Court concludes that
such a claim would also be futile. Therefore, the Court will deny Plaintiff’s request to
supplement his complaint.
V.

CONCLUSION
Based on the foregoing, the Court DENIES Plaintiff’s Motion to Supplement (Doc. 42)

and GRANTS Defendants’ Motion for Summary Judgment (Doc. 18). All claims raised in
Plaintiff’s complaint are hereby dismissed with prejudice.
IT IS SO ORDERED.

____________________________________
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent

31