F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS APR 1 1997 TENTH CIRCUIT PATRICK FISHER Clerk

JAYME HILL,

Plaintiff-Counter- Defendant-Appellee,

v. No. 96-2090 (D.C. No. CIV 95-117 M) NEW MEXICO SCHOOL FOR THE (D. New Mexico) DEAF, State of New Mexico, ex rel; MITZI BAKER-GARLAND; THOMAS J. DILLON, III; CAROLYN SESSA; J. FLOYD TRUJILLO, individually and in their official capacities as members of the Board of Regents of the New Mexico School for the Deaf; GILBERT DELGADO, individually and in his official capacity as superintendent of New Mexico School for the Deaf; LYNN ANN BARBERO, individually and in her official capacity as principal of New Mexico School for the Deaf; JIM LUCERO, individually and in his official capacity as counselor at New Mexico School for the Deaf; W.N. “BILL” DIXON,

Defendants-Appellants.

v. STATE OF NEW MEXICO, ex rel. Risk Management Division New Mexico State of New Mexico; NEW MEXICO SCHOOL FOR THE DEAF, State of New Mexico, ex rel. Risk Management Division of the General Services Department of the State of New Mexico, ex rel., Counter and Cross-Claim Defendants.

ORDER AND JUDGMENT*

Before LUCERO, LOGAN and MURPHY, Circuit Judges.

Jayme Hill filed this action in state court against defendants State of New Mexico

ex rel. New Mexico School for the Deaf, five of the School’s Board of Regents, the

School’s principal and superintendent, and Jim Lucero, a School counselor, all in their

individual and official capacities, alleging that Lucero sexually harassed plaintiff.

Plaintiff then amended the complaint adding federal law claims under 42 U.S.C. § 1983,

Title IX, and the Americans with Disabilities Act. Defendants removed the case to

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

2 federal court under 28 U.S.C. § 1441. The district court, however, determined that the

Eleventh Amendment precluded federal jurisdiction over the damages claims against the

state and the individual defendants in their official capacities, and that neither the New

Mexico Tort Claims Act nor defendants’ removal motion waived this immunity. See

N.M. Stat. Ann. § 41-4-4-(F). The district court found that “an Eleventh Amendment bar

renders the entire action non-removable, necessitating remand of the case in its entirety,”

Appellants' App. 81, relying, inter alia, on Flores v. Long, 926 F. Supp. 166 (D. N.M.

1995). Following our opinion issued this day in Flores v. Long, No. 95-2224 (10th Cir.

April 1, 1997), we hold the district court remand order was based on a lack of subject

matter jurisdiction, and thus we are barred from reviewing the remand order through

appeal or mandamus. See 28 U.S.C. § 1447(c) & (d); Thermtron Products, Inc. v.

Hermansdorfer, 423 U.S. 336, 349-52 (1976). We therefore DISMISS the appeal and

DENY defendants’ application for a writ of mandamus.

Entered for the Court

James K. Logan Circuit Judge

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