O'Flaherty v. State ex rel. Bd. of Regents of the Univ. of N.M.

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NEAL PATRICK O'FLAHERTY and DYLAN KEITH O'FLAHERTY, Plaintiffs, v. STATE OF NEW MEXICO ex rel. BOARD OF REGENTS OF THE UNIVERSITY OF NEW MEXICO, NEW MEXICO HIGHER EDUCATION DEPARTMENT, PETER KOVNAT, STEPHANIE RODRIGUEZ, MATT RUYBAL, MICHELLE LUJAN GRISHAM, and U.S. DEPARTMENT OF EDUCATION, Defendants.

No. 1:22-cv-00981-KWR-KRS

United States District Court, D. New Mexico

August 22, 2023

MEMORANDUM OPINION AND ORDER OF DISMISSAL

Plaintiffs who are proceeding pro se and were previously students at the University of Nevada Las Vegas ("UNLV") and transferred to the University of New Mexico ("UNM"), alleged that they "experienc[ed] direct unlawful retaliation from UNM employees," but did not describe the retaliation. Complaint at 3, ¶¶ 17-18, Doc. 1, filed December 28, 2022. Plaintiffs also alleged:

In effort to conceal criminal misconduct between UNM and UNLV including multiple direct Clery Act and FERPA violations, UNM de-facto expelled both Plaintiffs, each of whom had continued to maintain honor roll status as UNM students ... Plaintiffs have held multiple meetings with senior U.S. Department of Education investigators regarding the myriad rights abuses perpetrated daily upon Plaintiffs by UNM and UNLV ... Loretta Martinez had de-facto expelled Plaintiffs from the University of New Mexico under the alleged/unfounded premise that Plaintiffs, as Dean's List students, allegedly "lack legitimate educational intent" Defendant UNM has engaged in unlawful, tortious conduct on a daily basis in these matters, in furtherance of unlawfully concealing from the U.S. Department of Education and the U.S Department of Justice the ongoing Title IX violations involving the University of New Mexico.

Complaint at 4-5, ¶¶ 22-24 (emphasis in original). The Complaint did not describe the "myriad rights abuses" or the daily "tortious conduct." Plaintiffs asserted claims for deprivation of civil rights pursuant to 42 U.S.C. § 1983, see Complaint at 1, stating:

35. UNM's de-facto expulsions of Plaintiffs without legally required due process provides Plaintiffs with legal cause of civil action before this court, for deprivation of civil rights.

36. The New Mexico Higher Education Department's failure to restore Plaintiffs' equal access to higher education at the University of New Mexico provides Plaintiffs with legal cause of civil action before this court, for deprivation of civil rights.

37. Defendants' behavior violated 42 U.S.C. [sic] by discriminating upon Plaintiffs on basis of protected status including sex, sexual orientation, race, ethnicity, and disability status.

Complaint at 6.

United States Magistrate Judge Kevin R. Sweazea notified Plaintiffs:

The Complaint fails to state a due process claim. See Denver Homeless Out Loud v. Denver, Colorado, 32 F.4th 1259, 1276 (20th Cir. 2022) ("This court asks two questions when considering a procedural-due-process claim (1) Did the plaintiff possess a protected property or liberty interest to which due process protections apply? And if so, (2) was the plaintiff afforded an appropriate level of process?”). The Complaint alleges that "UNM's status as a federally-funded public university requires Defendant to engage in due process in all matters involving student discipline" but does not allege facts describing the process due to Plaintiffs.

The Complaint fails to state a claim against Defendants Peter Kovnat and Stephanie Rodriguez pursuant to 42 U.S.C. § 1983. “[T]o state a claim in federal court, a complaint must explain what each defendant did to him or her; when the defendant did it; how the defendant's action harmed him or her; and, what specific legal right the plaintiff believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe County Justice Center, 492 F.3d 1158, 1163 (10th Cir. 2007). The only factual allegation regarding Defendant Kovnat states: "Counsel Peter Kovnat has refused to contact the U.S. Department of Education regarding this matter [UNM and the New Mexico Higher Education Department's failure to restore Plaintiffs' access to education at UNM], despite direct knowledge that such negligence continues to unlawfully compound the active harm and damages which the Supreme Court of Nevada has already ruled has resulted in real harm and damages to Plaintiffs." Complaint at 2, ¶ 3. The Complaint does not contain any factual allegations regarding Defendant Rodriguez.

The Complaint fails to state claims of discrimination based on "sex, sexual orientation, ethnicity, and disability status" and retaliation. The Complaint contains conclusory allegations that Defendants "discriminat[ed] upon Plaintiffs on [the] basis of protected status including sex, sexual orientation, race, ethnicity" and "retaliated against Plaintiffs for lawfully whistle-blowing on matters involving student safety and Title IX violations" but does not contain factual allegations describing the discrimination and retaliation. A complaint must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[C]onclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based . . . [and] in analyzing the sufficiency of the plaintiff's complaint, the court need accept as true only the plaintiff's well-pleaded factual contentions, not his conclusory allegations.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Furthermore, the Complaint does not identify the specific legal right or federal statutes Plaintiffs believe the alleged discrimination and retaliation violated. See Nasious, 492 F.3d at 1163.

Order at 4-6, Doc. 5, filed January 6, 2023. Judge Sweazea ordered Plaintiffs to file an amended complaint and denied Plaintiff's motion for appointment of counsel. See Order at 8.

Amended Complaint

Plaintiffs' Amended Complaint asserts civil rights claims against the State of New Mexico, ex rel. Board of Regents of the University of New Mexico, the New Mexico Department of Higher Education, Peter Kovnat, Stephanie Rodriguez, Matt Ruybal, and Governor Michelle Lujan Grisham (the “New Mexico Defendants”) pursuant to 42 U.S.C. § 1983. See Amended Complaint at 1, Doc. 10, filed February 9, 2023. The Amended Complaint also asserts claims against the United States Department of Education. See Amended Complaint at 1. Plaintiffs assert due process, retaliation, conspiracy and breach of contract claims. See Amended Complaint at 4-12.

New Mexico Defendants' Motion to Dismiss

The New Mexico Defendants move to dismiss the claims against them because:

[T]his Amended Complaint continues to suffer from the same deficiencies identified in the original Complaint by this Court, i.e., failure to state a claim upon which relief can be granted.

Specifically, Plaintiffs have failed to allege facts that support their accusations, that (1) they exhausted their administrative remedies; (2) they were subject to retaliation by the New Mexico Defendants; (3) the New Mexico Defendants conspired with University of Las Vegas, the Las Vegas Metropolitan police, and Las Vegas student services; (4) they were denied due process; and (5) the New Mexico Defendants breached some unidentified contract.

New Mexico Defendants' Limited Appearance for the Purpose of filing this Motion to Dismiss with Prejudice at 3, Doc. 11, filed May 19, 2023 (“Motion”) (paragraph numbers omitted).

Plaintiffs have not filed a response opposing the New Mexico Defendants' Motion to Dismiss. The Court has reviewed the Amended Complaint:

a district court may not grant a motion to dismiss for failure to state a claim “merely because [a party] failed to file a response.” Id. at 1194. This is consistent with the purpose of Rule 12(b)(6) motions as the purpose of such motions is to test “the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994). Further, it is well established that a “complaint should not be dismissed for failure to state a claim ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' ” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Consequently, even if a plaintiff does not file a response to a motion to dismiss for failure to state a claim, the district court must still examine the allegations in the plaintiff's complaint and determine whether the plaintiff has stated a claim upon which relief can be granted.

Issa v. Comp USA, 354 F.3d 1174, 1177-78 (10th Cir. 2003).

Claims Against Defendant New Mexico Department of Higher Education

The Amended Complaint does not show that the Court has jurisdiction over the claims against Defendant New Mexico Department of Health, which is an arm of the State of New Mexico.

Under the Eleventh Amendment, private parties cannot sue a state in federal court without the state's consent. See Steadfast Ins. Co. v. Agric. Ins. Co. 507 F.3d 1250, 1252 (10th Cir. 2007). This protection extends to entities that are arms of the state. See Sturdevant v. Paulsen, 218 F.3d 1160, 1164 (10th Cir. 2000). When the defendant is a state or an arm of the state, “Eleventh Amendment immunity applies regardless of whether a plaintiff seeks declaratory or injunctive relief, or money damages.” Steadfast Ins. Co., 507 F.3d at 1252; see also Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (“This jurisdictional bar applies regardless of the nature of the relief sought.”).

Anderson v. Herbert, 745 Fed.Appx. 63, 69 (10th Cir. 2018).

As the...