El Hamdani v. University of New Mexico et al

Filing 23

MEMORANDUM OPINION AND ORDER by Chief District Judge William P. Johnson DENYING 15 MOTION to Dismiss; GRANTING Plaintiff leave to file an amended complaint within fourteen (14) days of entry of this order, and DENYING 20 MOTION for Hearing. (cmm)

Case 1:23-cv-00066-WJ-JFR Document 23 Filed 05/18/23 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
______________________
SAID EL HAMDANI,
Plaintiff,
No. 1:23-cv-00066-WJ
v.
UNIVERSITY OF NEW MEXICO, a public
University, STEPHEN BURD, Individually
and in his Official Capacity as an agent of
the University of New Mexico
Defendants.
MEMORANDUM ORDER AND OPINION
THIS MATTER is before the Court on Defendants’ Motion to Dismiss (Doc. 15) and
Motion for Hearing (Doc. 20). The Court DENIES Defendants’ Motion to Dismiss (Doc. 15);
however, the Court GRANTS Plaintiff leave to file an amended complaint to clarify any confusion
about which counts apply to which defendant in what capacity. A hearing is not necessary;
therefore, Defendants’ Motion for Hearing (Doc. 20) is DENIED.
DISCUSSION
Plaintiff Said El Hamdani brings claims under Title VI of the Civil Rights Act of 1964,
42 U.S.C. § 2000d, and 42 U.S.C. § 1981 against Defendants University of New Mexico (“UNM”)
and Mr. Stephen Burd for denial of a scholarship award due to his race or national origin.
Defendants urge the Court to dismiss Plaintiff’s Complaint for four reasons: (1) lack of subjectmatter jurisdiction; (2) individual-official capacity confusion; (3) failure to bring § 1981 claim
under § 1983; and (4) failure to state a claim under Title VI and § 1981. The Court addresses each
in turn, finds none persuasive, and DENIES Defendants’ Motion.

1

Case 1:23-cv-00066-WJ-JFR Document 23 Filed 05/18/23 Page 2 of 3

I.

Defendants Are Mistaken: NMTCA’s Notice Requirements Have Nothing to Do with
this Court’s Subject-Matter Jurisdiction to Hear Title VI and § 1981 Claims.
Defendants’ first argument for dismissal blatantly misunderstands the law. Defendants

appear to contend that Plaintiff failed to comply with the notice requirement for bringing claims
under the New Mexico Tort Claims Act (“NMTCA”), NMSA 1978, § 41-4-16(A), and thus cannot
bring claims under either Title VI or § 1981. This is just plain wrong. First off, it’s worth noting
that Plaintiff does not bring any claims under NMTCA, which makes Defendants argument all the
more puzzling. NMTCA’s notice requirement has nothing to do with claims brought under federal
statutes. See NMSA 1978, § 41-4-16(A) (The notice requirement applies to claims brought “under
the Tort Claims Act.”). Moreover, to the extent Defendants contend NMTCA is the only vehicle
by which a governmental entity’s sovereign immunity can be waived, they are mistaken. As
Plaintiff points out, Title VI also provides a waiver of Eleventh Amendment Sovereign Immunity.
41 U.S.C. § 2000d-7(a)(1). Defendants’ arguments to the contrary are devoid of merit.
II.

Plaintiff is Granted Leave to Amend.
Defendants next argue that Plaintiff cannot bring a Title VI claim against Mr. Burd in his

individual capacity and cannot bring § 1981 claims against UNM and against Mr. Burd in his
individual capacity. The problem with these arguments is that Plaintiff did not make these claims.
While Plaintiff’s Complaint is not the model of clarity, the Court need not dismiss claims that are
not pleaded. To avoid any confusion, the Court GRANTS Plaintiff leave to file an amended
complaint to make clear that Mr. Burd is being sued in his official capacity under Title VI and that
Plaintiff’s § 1981 claim is only against Mr. Burd in his individual capacity, and not UNM. The
Court also grants Plaintiff leave to add factual allegations as well as to spell out that his § 1981
claim is brought under 42 U.S.C. § 1983. See Bolden v. City of Topeka, Kan., 441 F.3d 1129, 1137
(10th Cir. 2006) (“[E]ven if [plaintiff] had not been sufficiently clear about bringing the § 1981
2

Case 1:23-cv-00066-WJ-JFR Document 23 Filed 05/18/23 Page 3 of 3

claim under § 1983, the district court should have permitted him to amend his complaint to do
so.”). Plaintiff must file an amended complaint within fourteen (14) days of entry of this order.
III.

Defendants’ Rule 12(b)(6) Plausibility Argument is Moot.
Defendants also challenge the plausibility of Plaintiff’s claims under Federal Rule of Civil

Procedure 12(b)(6).1 Because the Court grants Plaintiff leave to amend, Defendants’ Rule 12(b)(6)
argument is now moot. Defendants may raise a Rule-12(b)(6) challenge to Plaintiff’s Amended
Complaint once filed.
CONCLUSION
The Court DENIES Defendants’ Motion to Dismiss (Doc. 15); GRANTS Plaintiff leave
to file an amended complaint within fourteen (14) days of entry of this order; and DENIES
Defendants’ Motion for Hearing (Doc. 20).

IT IS SO ORDERED.
______________________________________
WILLIAM P. JOHNSON
CHIEF UNITED STATES DISTRICT JUDGE

1

Defendants cite New Mexico Rules of Civil Procedure and State appellate caselaw in
their motion. The Court advises Defendants that they are in federal court on federal statutory claims
and thus must follow federal procedure and federal precedent interpreting that procedure.
3