FILED 3rd JUDICIAL DISTRICT COURT Dona Ana County STATE OF NEW MEXICO 4/19/2023 10:27 AM COUNTY OF DONA ANA DAVID 8. BORUNDA THIRD JUDICIAL DISTRICT COURT CLERK OF THE COURT Becky Rodriguez WILLIAM “DEUCE” BENJAMIN JR., WILLIAM BENJAMIN, and SHAKIRU ODUNEWU, Plaintiffs, No, 9:307-Cv-2028-00811 v Tladgeftch, Casey B BOARD OF REGENTS OF NEW MEXICO STATE UNIVERSITY, GREG HEIAR, DOMINIQUE TAYLOR, KIM AIKEN, JR., DOCTOR BRADLEY, and DESHAWNDRE WASHINGTON, Defendants. COMPLAINT Plaintiffs William Benjamin, William “Deuce” Benjamin Jr., and Shakiru Odunewu appear, by and through their respective counsel, and for their Complaint, state: Preliminary Statement Student athletes, like others on college campuses, have the right to be free from harmful and offensive contact by others, including intentional conduct anticipated to cause physical harm, humiliation and emotional distress. Slapping a label of hazing on such behavior mischaracterizes the seriousness of the harmful conduct and attempts to minimize it while implying a justification as a rite of passage that will ultimately allow membership in an elite group, and further, implies the harm may be the price of admission When the behavior goes too far, and crosses the line into nonconsensual touching, it is not mere hazing; it is battery and sexual assault. When the behavior continues for months, it cannot be viewed as an initiation rite; instead, it is harassment and abuse. Andwhen coaches and universities do not take adequate action to prevent or stop such behavior, they have failed their student athletes and are complicit in the abuse. It was just such behavior that caused the filing of this lawsuit, the firing of a coach, and the mid-season shutdown of New Mexico State University's successful Division 1 basketball program. The victims in this case seek to right the wrong, and speak out not only for their own benefit, but to help put an end to such needless and harmful behavior in collegiate athletics The Parties, Jurisdiction and Venue 1. Plaintiff William "Deuce" Benjamin Jr. resides in Las Cruces, Dofia Ana County, New Mexico. He is a student at New Mexico State University ("NMSU"), He was a member of the NMSU basketballl team during the 2022-2023 academic year. 2. Plaintiff William Benjamin resides in Las Cruces, Dofia Ana County, New Mexico. He is the father of Deuce Benjamin and a former NMSU basketball player. 3. Plaintiff Shakiru “Shak” Odunewu also currently resides in Las Cruces, Dofia Ana County, New Mexico. He was a member of the NMSU basketball team during the 2022-2023 academic year. 4. Defendant Board of Regents of New Mexico State University (“Defendant NMSU! or “NMSU’) is a body corporate, established pursuant to the laws of the State of New Mexico, which operates New Mexico State University and is authorized to sue and be sued in its capacity as operator of the university. NMSU's main campus and sports facilities are in Las Cruces, New Mexico10, At the time of the events giving rise to the lawsuit, Defendant Greg Heiar was Head Coach of the NMSU Basketball team. He then resided in Las Cruces, Dofia Ana County, New Mexico. At all times material to the claims alleged in this lawsuit, Defendant Greg Heiar (‘Heiar" or *Coach Heiar’) acted within the course and scope of his employment with NMSU At the time of the events giving rise to the lawsuit, Defendant Dominique Taylor was Associate Head Coach of the NMSU Basketball team and resided in Las Cruces, Doria Ana County, New Mexico. Atall times material to the claims alleged in this lawsuit, Defendant Dominique Taylor ("Taylor’) acted within the course and scope of his employment with NMSU At the time of the events giving rise to the lawsuit, Defendants Kim Aiken, Jr (‘Aiken’), Doctor Bradley ("Bradley") and Deshawndre Washington (‘Washington’) were players on the NMSU Basketball team who resided in Las Cruces. They received full-ride athletic scholarships, to include not only tuition and books, but also room and board. Beyond tuition, books, room and board, Deshawndre Washington received $5,000 per month in NIL payments and Doctor Bradley received $3,500 in NIL payments. All of these monies were paid to each Defendant contingent on their agreement to play on the NMSU men’s basketball team. At alll times material to the claims alleged in this lawsuit, Defendants Aiken, Bradley and Washington acted within the course and scope of their appointment and contract relationship with NMSU as scholarship athletes, as well as theiragency or employment with NMSU. There was a connection between their actions at the time of the incidents complained of herein and their role on the men's basketball team. 14. Most of the events alleged in this Complaint occurred in Dofia Ana County, New Mexico. 12. _ Immunity has been waived pursuant to NMSA 1978, Section 41-4-6 of the New Mexico Tort Claims Act for the negligence claim against Defendant NMSU. 13. _NMSU received timely notice of this negligence claim under the New Mexico Tort Claims Act pursuant to NMSA 1978, Section 41-4-16 (2007) 14, NMSUis vicariously liable for the acts and omissions of all individual Defendants and are jointly and severally liable for the actions of all Defendants 15. Jurisdiction and venue are proper with this Court Background Facts NMSU Basketball Program 16. For decades, the NMSU Division 1 men's basketball team has brought the community of Las Cruces to campus and has put NMSU on the national map. Many in the loyal fan base share the dreams of NMSU Aggie success in post- season tournament play. Their dreams are not far-fetched. Aggie basketball has. had some great runs. The team has made 25 NCAA Tournament appearances and 5 NIT Tournament appearances. 17. Despite the program’s successes, it has not been easy to attract talent to play basketball at NMSU. While it has a loyal fan base, NMSU is not known to be a top-tier university with a top-tier basketball program. NMSU is not located in an urban area or destination city that has nation-wide appeal and visibility. Over 4lcompla18, 19, the years, NMSU has accepted some players with problems of one type or another, typically either academic difficulties or run-ins with the law. The very best players, with impeccable credentials, typically go to highest of the top-tier schools. In 2019, NMSU repealed its policy on student athlete misconduct — a policy that was more stringent than the policies that govern all students on campus. Since that time, a student-athlete accused of criminal misconduct is investigated by the Office of Dean of Students, just like any other student. If a student athlete is charged with or convicted of a crime, his or her coach may issue discipline or the coach may wait for the school to act. The timing of the policy repeal coincided with former Aggie guard Terrell Brown’s no contest plea in 2019 to a 2017 felony charge. Before the policy change, the policy mandated that any student athlete “shall be dismissed permanently from his or her team if he or she is convicted, pleads guilty, or pleads no contest to any felony charges.” Because of the policy change, Brown was allowed to continue to play for the NMMSU men’s basketball team. And recruiting a player with a criminal history became less concerning. From his hire in 2017 until he left in 2022, the Aggie basketball team was led by Coach Chris Jans. During those years, the men’s basketball program did well, with Coach Jans taking the Aggies to the NCAA tournament in 2022, for the third time in five seasons. While there, No. 12 New Mexico State upset No. 5 UConn in the first round. Following that big win, Coach Jans accepted a new coaching position at a different university.20. 24 22. 23. 24. Within eight days of the announcement of Chris Jans’ departure, Greg Heiar was brought on as the new head coach for the Aggies, Prior to coming to NMSU, Greg Heiar had been the head coach at Northwest Florida State College, a junior college that accepts 100% of applicants and that has a reputation of accepting basketball players who have problems being accepted elsewhere, despite what may be exemplary athletic skills. Defendant Deshawndre Washington was a highly successful player for Greg Heiar in his last year of coaching at Northwest Florida State College. Heiar brought Washington to NMSU to play for the NMSU Aggies. Coach Heiar also recruited Defendants Kim Aiken, Jr, and Doctor Bradley to play for the NMSU Aggies. Aiken left the University of Arizona under suspicious circumstances and was not eligible to play for the Aggies. Despite the attempts of NMSU and Heiar to obtain an eligibility waiver that would allow Aiken to play, the NCAA denied the waiver request. NMSU and Helar planned to continue to seek eligibility for Aiken, In less than one season under Coach Heiar’s leadership, the NMSU basketball program went rapidly downhill, plagued by player misconduct and scandal NMSU abruptly shut down its men’s basketball program on February 10, 2023 due to the events giving rise to this case. Coach Heiar was fired on February 14, 2023. The rest of the games for the season were cancelled, later deemed forfeited, leaving the team at the bottom of the same conference where they stayed at or near the top the prior year. On February 12, 2023, NMSU Chancellor Dan Arvizu stated that NMSU has cover 400 student athletes and that the safety of students is NMSU's top priority. 6IcoHe further stated that the NMSU men’s basketball program has been infected with a culture of bad behavior, to include egregious violations of the student Code of Conduct and “other despicable acts.” William Benjamin 25. 26. 27. 28. 29. William Benjamin was a legendary player for NMSU in the late 80s and early 90s, when the NMSU men's basketball team, under the tutelage of Coach Neil McCarthy, dominated the Big West, second only to UNLV. Every year Benjamin played for NMSU, the Aggies were fiercely competitive and known to be among the top teams in the nation. The Aggies went to the NIT in 1989, followed by three straight years at the NCAA tournament, including a Sweet Sixteen appearance. William Benjamin is known to be an Aggie great. In 2007, he was one of 21 men named to the NMSU All-Century Team, and in 2022, he was inducted into the New Mexico State Athletics Hall of Fame. While originally from Los Angeles, Benjamin stayed in Las Cruces and made the community his home and the place where he has raised his three children, including his son, William Jr., known as Deuce. In the years since he played ball for the Aggies, Benjamin maintained his ties and loyalty to NMSU and the surrounding community. Prior to the events giving rise to this case, he had been known to say that 70% of the man he has become he owes to that university and 30% to his family, In 1997, Benjamin began teaching at Las Cruces High School (LCHS) and signed on as the assistant basketball coach. He became head coach in May of 2009. During his time as LCHS head coach, he has twice been voted NMPreps. mc30. 31 Coach of the Year. In 2020, he was named Coach of the Year by the New Mexico High School Coaches Association. William Benjamin has lead the LCHS team to eight district championships, a pair of state championships, and three runner-up finishes. In 2022, LCHS was recognized by MaxPreps as the number-one basketball program in the state. ‘As LCHS head coach, Benjamin coached his son, Deuce. The father-son pair have been devoted to basketball and studied the game together for years. Basketball has always been a significant part of their relationship and their identities as individuals. They lived and breathed Aggie basketball. Benjamin instilled in his son a love for the sport and for the Aggie basketball program. William “Deuce” Benjamin Jr. 32. 33. Like his father before him, Deuce Benjamin is an accomplished athlete and skilled basketball player. He averaged nearly 26 points, 7 assists, and over 5 rebounds per game while playing for LCHS in 2022. Unlike his father, Deuce Benjamin grew up in Las Cruces, New Mexico. He was a ball boy for the Aggies while in middle school. He graduated from LCHS in 2022, after winning the MaxPreps New Mexico Boys Basketball Player of the Year in 2021 and 2022. He was also named the Gatorade New Mexico Boys Player of the Year in 2021. His led his team to a 102-6 record, with one state championship and twice finishing as state runner-up. In 2022, NMSU Coach Chris Jans offered Deuce Benjamin a place on the team and a full-ide scholarship. When Jans left, Coach Greg Heiar extended the same offer.35, The loyal NMSU fan base was delighted when Deuce Benjamin signed to play for the Aggies. His father was excited and proud that his young son, Deuce, would continue the NMSU basketball legacy and make it his own. Deuce was a great draw for the Aggies because of his talent on the court, his history and his engaging personality. He was viewed as a hometown son who would be a great Aggie. Shakiru “Shak” Odunewu 36. 37. 38. 39. Shak Odunewu is a tall young man of Nigerian descent. He was born in Providence, Rhode Island, and lived there for years with his parents and siblings. His parents eventually separated, and he moved with his mother to Texas. ‘Shak Odunewu feels compelled to succeed. He was raised within the Muslim faith. As he pursued his goal of playing college basketball, he leaned on his faith-based values. He worked hard academically and on the court. He took care of his body by avoiding alcohol and drugs, and he strove to be kind to others, which meant that he did not express aggression outside of the bounds of healthy athletic competition. Shak attended high school at Universal Academy in Irving, Texas, where he was coached by Terrelle Woody. Coach Woody worked with Shak to improve his grades and fine-tune his skills to play basketball as a forward. Shak took extra courses to improve his academic foundation and bring up his grades. Coach Woody knew NMSU basketball Coach Chris Jans and NMSU's history and success. NMSU and Coach Jans appeared to be a good fit for Shak Odunewu and he agreed to go there. He attended NMSU in the 2021/2022 9icompla40. aT academic year. He sat out that year, but he began to make friends as he became acquainted with the basketball team When Coach Jans left, Coach Heiar took over and re-recruited Shak Odunewu, through Coach Woody. Shak was comfortable at NMSU and looked forward to playing there in 2022/2023, so he decided to stay. Shak was offered and accepted a full ride athletic scholarship to NMSU, which paid his tuition and fees in the amount of $25,666, room and board of $9,884, and all of his books, for a total award package worth in excess of $36,000. Shak Odunewu is a quiet man who does not drink, smoke or party. He and his family are devout members of the Muslim faith, He lives his life in a principled manner, Hazing and Sexual Assault on College Campuses 42. 43. Hazing in various forms and different degrees of severity is all too common in collegiate athletic programs. According the research group StopHazing, a 2008 study found that seventy-four percent of student athletes experience at least ‘one form of hazing while in college. Rape and sexual assault are also alll too common on college campuses. A study of the Association of American Universities revealed that thirteen percent of all college students experience rape or sexual assault. Men comprise nearly seven percent of the college students who have reported nonconsensual sexual contact. NMSU Chancellor Dan Arvizu issued a written statement that included the following remarks:Hazing is a despicable act. It humiliates and degrades someone and has the potential to cause physical and emotional harm, or even death. Sadly, hazing can become part of an organization's culture, if left unchecked. That is precisely what happened in the NMSU men’s basketball program. Events Giving Rise to This Lawsuit The Humiliation of Shak Odunewu 46. 47. 48. 49. 50. On August 4, 2021, Shak committed to play for NMSU Aggie Men's Basketball During the 2021 to 2022 season, he was not yet on scholarship. He remained on the bench while he focused primarily on his schoolwork. On July 23, 2022, the NMSU Department of Athletics offered Shak a full ride athletic scholarship, and he accepted, Shak understood that he would gradually be taken off the bench and begin to play, and he frequently practiced with his teammates to prepare for the upcoming season. Beginning in the summer of 2022, three of Shak's teammates—Deshawndre Washington, Doctor Bradley, and Kim Aiken, Jr—began to degrade Shak through unwanted touching and cruel comments in the locker room. The team’s behavior on the road and in the locker room was often out of control and rarely, if ever, addressed or limited by the coaching staff. Aiken, Bradley and Washington were frequently inappropriate, disrespectful, degrading and violent toward their fellow team members, particularly those who were quieter and less accustomed to a rough environment, Shak Odunewu tried to keep his distance from the other members of the team, particularly those who engaged in rough, violent, and degrading behavior. On one occasion during the summer of 2022, Shak was taking a shower in the Aggie locker room, when Doctor Bradley, and Kim Aiken, Jr. ripped the shower nic51 52. 53. 55. curtain aside. They forced Shak to spin around and do squats as they slapped his buttocks. Doctor Bradley filmed the episode. ‘Shak was traumatized by the event, From that point on, after practices, Shak tried to be the first person in the locker room so that he could get out before Aiken, Bradley and Washington came in. He could not always avoid them The abusive behavior of Aiken, Bradley and Washington toward Shak Odunewu and other players escalated from July of 2022 into the basketball season. On multiple occasions while in the locker room and on road trips, Shak was the victim of unwanted physical and sexual contact, accompanied by degrading remarks and taunts. The worst occurred on November 12, 2022, when Shak Odunewu traveled with the team and coaching staff to play the University of Texas at El Paso's Don Haskins Center. During the bus ride on November 12, 2022, Kim Aiken, Jr., Doctor Bradley, and Deshawndre Washington converged on Shak Odunewu. Deshawndre Washington asked Shak Odunewu, “Are you humble?” Shak tried to maintain his dignity and remained silent. Washington called on Doctor Bradley and Kim Aiken to repeat his question. They did so in a serious, menacing tone. Washington then aggressively said, "Shak, are you fucking humble?” Deshawndre Washington, Doctor Bradley, and Kim Aiken, Jr. tackled Shak onto the floor in the back of the bus. Aiken and Bradley pinned him down and pulled his pants and underwear down to his ankles. Shak was held face down and could not speak due to a hand held over his mouth by one of the three. He was W|Compla87. 58. 59. 60. 61 62. terrified. They slapped his bare buttocks and he felt fingers inserted into his anus while his scrotum was simultaneously squeezed. Despite his efforts to resist, Aiken, Bradley and Washington were all large men and all on him. He could not get away. He was forced to endure the painful and humiliating experience as it continued for an indeterminable amount of time. No one did anything to stop the attack. His teammates were afraid to come to his aid, Head Coach Greg Heier and the rest of the NMSU Aggie men’s basketball coaching staff were on the bus and were in charge of the players. Instead of supervising the players, they sat toward the front, focused on their phones or tablets. In response to the assault taking place, one of the coaches turned around and yelled out, "Stop playing around.” Mortified about how he had been victimized, Shak told his former coach, Terrelle Woody, what had happened. Coach Woody insisted that he report it to the NMSU coaching staff, and he did a few days later. Shak Odunewu reached out and reported to both Head Coach Greg Heier and Associate Coach Dominique Taylor. Shak approached Coach Dominique Taylor and pleaded with him to intervene. Taylor laughed in his face and said, "What do you want me to do?” Shak discussed what had happened three times with Coach Heiar, once with Coach Woody on the phone. Woody angrily confronted Heiar with what had been going on and demanded that Heiar do something. Heiar said that he was looking into it and would be issuing some suspensions63. None of the three players, Kim Aiken, Jr., Doctor Bradley, and Deshawndre Washington, were suspended Shak Odunewu came to understand that Head Coach Heier and his staff were unwilling to address the team's toxic culture. The Degradation of Deuce Benjamin 65. 67. 68. 69. ‘As a hometown hero, Deuce received warm attention from local fans. Similar support was not made apparent by the basketball team, where many of his fellow players, and even coaches, treated him as if he were merely the local kid and nota skilled and talented player with stats that were comparable to or better than many others on the team. After receiving little opportunity to play in the games, he elected to go on “red shirt’ status, allowing him to have another year of eligibility. Deuce Benjamin was another frequent target of the trio of Aiken, Bradley, and Washington starting in the summer of 2022, continuing and escalating into February, 2023. The coaches and staff often showed up late to practice and did little to supervise. At times, some were around when the attacks were going on and they did nothing to look into what was happening nor to stop it. The attacks usually happened in the locker room before workouts or before practices. Aiken, Bradley and Washington would prey on Deuce, hold him down, pull his shorts down and expose his bare buttocks. They would slap his buttocks and grab his scrotum and twist it, inflicting great pain. As the three physically abused and imprisoned Deuce, they also mentally abused him. They would badger him by asking, “Are you humble?” and “Are you W|Compla70. 1 72. 73. a humble bitch?” and would not back off until they felt they had some kind of assent or had sufficiently degraded Deuce. The more he resisted, the worse it was. Deuce had never seen or experienced such behavior in a locker room. Initially he thought that perhaps it was part of being a new player on the team, although he found it shameful and humiliating. It became clear that it was far more than a rite of initiation when the attacks did not stop and even escalated Deuce Benjamin was unable to defend himself against Aiken, Bradley and Washington. Not only was Deuce outnumbered, but all three predators were either 67" or 6'8" and each had at least 30-40 pounds on him The attacks and degradation occurred not only in the NMSU locker room, but also while on the road, A particularly embarrassing and humiliating incident occurred while the team was staying at a hotel for a road game. Deuce was pulled into a hotel room where some players were with some young women. Washington told Deuce in front of the women to “pull your ass out.” He then stated “This is what we do for freshmen, pull your ass out.” Deuce resisted, saying, "No, no way.” Washington wamed "Do it or | grab your nuts.” He exposed Deuce's backside and forcefully grabbed his scrotum, inflicting great pain and humiliation. All of this occurred in front of the women, which only added to Duece's degradation. Deuce struggled to handle his classes and continue to be part of the team. The attacks happened frequently, and he lived in fear of the next one, While he never consented, he felt powerless to stop it. He was treated in a manner contrary to74, 75. all he had previously experienced in athletics and in school, He was degraded, humiliated and beaten down by the experience Deuce's father, William, was concerned about the changes he saw in his formerly confident and focused son. After William confronted him, Deuce finally broke down and told him what had been going on. William was very upset and tried to reach Coach Heiar and Athletic Director Mario Mocchia, who did not return his calls. On February 10, 2023, Deuce Benjamin reported what had occurred to the NMSU Police. The NMSU Police issued a report listing possible criminal charges of false imprisonment, criminal sexual contact and harassment. The matter is still under investigation by law enforcement. The Downward Spiral of the NMSU Basketball Program 76. 77. 78. ‘Shak and Deuce were not the only victims of Kim Aiken, Jr., Doctor Bradley and Deshawndre Washington. At least one other player and a member of the staff were subjected to the same or similar treatment from those individual Defendants. On information and belief, at least one report was made to NMSU about the victimization of one of the young men near the time when the team had played in Las Vegas after Thanksgiving, By the end of November or first week of December, 2022, there were at least two victims who reported abuse perpetrated on them by Aiken, Bradley and Washington. Yet the behavior continued. By doing nothing, the Coach Heiar and his staff emboldened and empowered Aiken, Bradley and Washington, giving them substantial power over their79. 80. 81 teammates. That power was used to commit acts of sexual assault and battery against Shak Odunewu, Deuce Benjamin and others. Coach Heiar did little if anything to address the reports of abuse. Between Shak’s first report and his last, the team and coaching staff faced other serious problems related to basketball team members that arose on November 19, 2022, when the NMSU men's basketball team was in Albuquerque to play its northern rival, the University of New Mexico (UNM). While there, starting forward Mike Peake was involved in a shooting on the UNM campus. It is said that he acted in self defense After the incident, investigators reported that coaches and staffers were found to have multiple pieces of potential evidence from the shooting, including a cell phone, tablet and the gun. The media reports that the police told Heiar and his assistants that they needed all of that evidence and asked to be alerted if they found any, The police also asked to speak with three NMSU players who were with Peake. Despite that, Coach Heiar instructed the players to leave town on the bus and return to the NMSU campus. Only after the bus was stopped by police at a rest area north of Truth or Consequences, with lights blazing and sirens screaming, did an assistant coach turn over the bloodied tablet. The phone was later found at the Las Cruces home of Senior Associate Athletic Director Ed Posaski, who had been on the bus. The gun was left at the hotel in Albuquerque with Assistant Coach Dominique Taylor. This series of events not only points to a lack of supervision over the players, but also appears to indicate that the coaching staff was assisting the players in covering up bad behavior and thwarting police efforts,82, 83. 85. At a press conference on November 29, 2022, Coach Heiar apologized and reported that he took full responsibility for what happened, but declined to say anything more. The NMSU basketball team faced a shortage of players. Mike Peake was suspended indefinitely for his role in the shooting. Three other players were suspended after the surveillance video was released by State Police. NMSU hired a law firm to conduct an external investigation to review the November 19 shooting and the university's response to it. By February 8, 2023, NMSU’s basketball team had dropped to 9 wins and 15 losses for the season, with only 2 wins out of 10 games in the Western Athletic Conference (WAC). NMSU Shuts Down the Basketball Program and Fires Coach Heiar 86. 87. After Deuce Benjamin reported what had happened to the NMSU police department on February 10, 2023, his report came to the attention of Chancellor Dan Arvizu and Athletic Director Mario Moccia. On February 10, 2023, NMSU shut down the men’s basketball program indefinitely. A few days later, on February 12, 2023, Chancellor Dan Arvizu announced that the men’s basketball program was suspending operations for the rest of the season. A press conference was held and some of what had happened was divulged. A copy of the police report was provided to the media later in the day, with the names of the victim and the three perpetrators blacked out During press interviews, NMSU announced that it was hiring yet another law firm to conduct another internal investigation, this time to address the reports of abusive behavior in the men’s basketball program. A woman came to Shak 18 | c88. 89. Odunewu's apartment to question him. He told her about the abuse he experienced at the hands of the Washington, Aiken and Bradley. He also told her that he had previously reported the incident to the coaching staff, including former Coach Heiar. To date, Deuce Benjamin has not been questioned by NMSU's internal investigators. On March 1, 2023, the NMSU men’s basketball program began to have voluntary workouts with former Aggie Casey Owns, who also consulted with players. Neither Deuce Benjamin nor Shak Odunew were invited to the join the voluntary workouts. On March 15, 2023, the law firm investigating matters related to the November 19, 2022 shooting issued an Executive Summary. While multiple basketball coaches and players refused to be interviewed or were reported to be unavailable, or both, recommendations for changes to NMSU policy and control of its student athletes were issued, based on the information that had been obtained. Recommendations included A. Tighter policies and enforcement of team curfew rules; B. A tighter weapon policy that applies to student athletes and coaches, prohibiting possession of weapons and firearms while traveling for team events or representing NMSU; C. Developing a policy for communicating and cooperating with Law Enforcement regarding potential criminal activity of a student athlete; D. Implementing measures to strengthen a culture that encourages student adherence to integrity and values of the programs at all times; and E. Revision of NMSU Student Athlete Handbook.90. 1 92. 93. 95. In late March, 2023, NMSU hired a new basketball coach, Jason Hooten, He publicly declared that “A new culture needs to be built, and a new start and a new beginning.” That new beginning will not include William “Deuce” Benjamin, who was told by Coach Hooten that he should go elsewhere and make a name for himself. Nor will the “new culture” at NMSU include Shak Odunewu, who was ignored by NMSU after the program shut down Count I: Negligence Brought Pursuant to the Tort Claims Act Plaintiffs Benjamin Jr. and Odunewu vs. Defendants NMSU and Heiar Plaintiffs restate all of the preceding allegations as if fully set forth herein. The acts and omissions giving rise to this Complaint occurred during the summer and fall months of 2022, carrying into the winter months for Plaintiff Benjamin. At all times material to the allegations set forth in this lawsuit, Defendants NMSU, Heiar and Taylor had a duty to operate and maintain the athletic department so that it would be reasonably safe for its student athletes, to include the men’s basketball team. At all times material, agents and employees of Defendant NMSU, including Defendants Heiar and Taylor, were obligated to follow policies and practices designed to protect students and student athletes from sexual assault, battery, harassment, bullying and hazing Defendant NMSU, by and through their agents and employees, including Heiar and Taylor, had the responsibility of keeping the athletic department and the men's basketball program free from sexual assault, battery, harassment, bullying and hazing,97. 98. 99. 100. 101 Defendants NMSU, by and through their agents and employees, including Heiar and Taylor, had a duty to follow policies necessary to protect student athletes and to report incidents of sexual assault, battery, harassment, bullying and hazing that were discovered either by witnessing such conduct or by being told of it Agents and employees of Defendant NMSU, Heiar and Taylor knew or should have known that Defendants Aiken, Bradley and Washington, individually and acting in concert, created a dangerous condition in the basketball program and on the premises, and a risk to student athletes and others on its premises and involved in its basketball program Agents and employees of Defendant NMSU, Heiar and Taylor were on notice that Defendant Aiken had prior problems with inappropriate behavior toward other students. Agents and employees of Defendant NMSU, Heiar and Taylor were on notice that Defendants Aiken, Bradley and Washington had demonstrated inappropriate behavior toward others involved in the NMSU basketball program The inappropriate and harmful behavior included sexual assault, battery, harassment, bullying and hazing, Agents and employees of NMSU, Heiar and Taylor did not develop a disciplinary action plan or supervisory plan to address and prevent the inappropriate and harmful behavior of Defendants Aiken, Bradley and Washington toward others participating in the men’s basketball program Defendants Heiar, Taylor and other staff in the basketball program failed to report the inappropriate and harmful behavior of Defendants Aiken, Bradley and alCompla102. 103. 104, 105. 106. 107. 108. Washington toward student athletes in the men's basketball program, to include their acts of sexual assault, battery, harassment, bullying and hazing, Defendant Heiar, Taylor and other staff in the basketball program failed to take immediate and effective action to discipline and/or eliminate the inappropriate and harmful behavior of Aiken, Bradley and Washington perpetrated on student athletes involved in the men’s basketball program, to include their acts of sexual assault, battery, harassment, bullying and hazing The negligent acts and failures to act on the part of Defendants NMSU, Heiar and Taylor unreasonably endangered the health, safety, and well-being of Deuce Benjamin and Shak Odunewu Defendants NMSU, Heiar and Taylor enabled Aiken, Bradley and Washington to continue inflicting harm on others in the basketball program, including Deuce Benjamin and Shak Odunewu Defendants NMSU, Heiar and Taylor breached their duties when they created an unsafe premises and operated an unsafe program for the basketball players, including Deuce Benjamin and Shak Odunewu. Defendant NMSU is vicariously liable for the negligent acts and omissions of Defendants Heiar and Taylor. Asa direct and proximate result of the breached duties of Defendants NMSU, Heiar and Taylor, Plaintiffs sustained damages. In the commission of the acts alleged herein, Defendants Heiar and Taylor acted recklessly, with deliberate indifference and callous disregard for the safety of Deuce Benjamin and Shak Odunewu.109. 110. 414 112. 113. Count I: Loss of Consortium Brought Pursuant to the Tort Claims Act Plaintiff William Benjamin vs. Defendants NMSU and Heiar Plaintiffs restate all of the preceding allegations as if fully set forth herein. Prior to the events giving rise to this case, William Benjamin and his son, Deuce, enjoyed a very close relationship. William raised Deuce as a single father. They lived together, they spent considerable time together studying basketball and engaging in all things basketball, to include the four years William Benjamin coached his son. The two were far more closely involved with one another than the average teenager is with his father. New Mexico law allows claims for loss of consortium when a person within a sufficiently close relationship with another person who suffers an injury, and that injury results in harm to the relationship. Thompson v. City of Albuquerque, 2017-NMSC-021, | 16, 397 P.2d 1279. Loss of consortium can be asserted against government actors in New Mexico, provided that the underlying tort that caused injury is based on a waiver of immunity. Thompson v. City of Albuquerque, 2017-NMSC-021, If] 9, 10, 397 P.2d 1279. In the present case, the underlying tort for which immunity is waived is negligence based on a premises liability theory pursuant to Section 41-4-6 of the Tort Claims Act, as detailed in Count |, above. Loss of consortium damages are derivative in nature because they arise from a physical injury upon another person. Romero v. Byers, 1994-NMSC-031, {| 8, 872 P.2d 840. In this case, Deuce Benjamin was the party who suffered the original injury, as detailed above.114. 115. 116. 117. 118. 119. The same Defendants who caused harm to Deuce Benjamin caused harm to the relationship between father and son, who were very close and mutually interdependent. William Benjamin's relational interest with his son was harmed by the injury his son sustained due to the wrongful conduct that victimized his son, This was made worse by the loss of their shared love of the Aggies and the betrayal that William Benjamin has suffered due to the abuse his son sustained while at NMSU. Count Ill: Sexual Assault, Battery and False Imprisonment Plaintiffs Benjamin Jr. and Odunewu vs. Defendants Aiken, Bradley and Washington Plaintiffs restate all of the preceding allegations as if fully set forth herein Plaintiffs Deuce Benjamin, Jr. and Shak Odunewu did not consent to being stripped of their clothing, slapped on their buttocks, nor to the harmful and offense grabbing and twisting of their scrotums, nor to any other offensive and invasive behaviors described above and perpetrated on them by Defendants Aiken, Bradley and Washington Plaintiff Duece Benjamin and Shak Odunewu were in constant fear of continued or even worse sexual batteries perpetrated on them. The actions of Defendants Aiken, Bradley and Washington constituted multiple batteries on Plaintiffs. On multiple occasions, Plaintiffs were also held down and restrained against their will and imprisoned by Defendants Aiken, Bradley and Washington, which further contributed to their sense of powerlessness, fear and humiliation.120. 121 122. 123. 124. 125. ‘As a result of the offensive conduct, Plaintiffs suffered pain, humiliation, degradation and emotional distress. The actions of Defendants Aiken, Bradley and Washington were willful, wanton and in reckless disregard of Plaintiffs! rights, thereby justifying an award of Punitive damages to deter each of them and others from engaging in such harmful and offensive conduct in the future. Count Iv: Vicarious Liability Under Theory of Aiding in Agency Plaintiffs Benjamin Jr. and Odunewu vs. Defendant NMSU Plaintiffs restate all of the preceding allegations as if fully set forth herein Beginning no later than November, 2022, Defendants Heiar and NMSU had actual knowledge of, and were deliberately indifferent to, the fact that Aiken, Bradley and Washington were preying on certain members of the basketball team who were less worldly and more vulnerable to their attacks Beginning no later than November 15, 2022, Defendant NMSU had actual knowledge of, and was deliberately indifferent to, the inappropriate harassment, attacks, sexual assaults and batteries, that Aiken, Bradley and Washington perpetrated on certain members of the basketball team, to include Deuce Benjamin and Shak Odunewu By no later than November 12, 2022, Defendant NMSU, through Coach Heiar and Assistant Coach Dominique Taylor, had knowledge and notice that Shak Odunewu was a victim of sexual assault and rape perpetrated on him by Aiken, Bradley and Washington. Defendant NMSU also was put on notice that Shak Odunewu was not the only victim and further, that he was battered and sexually assaulted more than one time, as were others.126. 127. 128. 129. 130. 131 192. Aiken, Bradley and Washington were aided in accomplishing the acts of sexual assault and battery on Plaintiffs by the existence of the agency relationship with NMSU and its basketball program, including Heiar and Taylor. By turning a blind eye and a deaf ear to the abuse, Coach Heiar, Associate Coach Taylor and their staff emboldened and empowered Aiken, Bradley and Washington, giving them substantial power over their teammates. That power was used to commit acts of sexual assault and battery by them against Shak Odunewu, Deuce Benjamin and others. As a direct and proximate result of the acts and omissions of agents and/or employees of NMSU, including former Coach Heiar and Associate Coach Taylor, Plaintiffs have been harmed and have suffered serious damages. Defendant NMSU is vicariously liable for Plaintiffs’ damages as a result of having aided in accomplishing the wrongdoing by the existence of the agency relationship. Count V: Violation of New Mexico Civil Rights Act Plaintiffs Benjamin Jr. and Odunewu vs. Defendant NMSU Plaintiffs restate all of the preceding allegations as if fully set forth herein Defendant NMSU is a public body within the meaning of the New Mexico Civil Rights Act, Section 41-4A-3, At all times material, the individual Defendants were acting on behalf of, under color of, or within the course and scope of Defendant NMSU, and Defendant NMSU is liable for their actions pursuant to NMSA Section 41-4A-3(C),133. The batteries and sexual abuses inflicted on Plaintiffs constitute a deprivation of Plaintiffs’ rights secured under the Constitution of New Mexico, including but not limited to those secured to Plaintiffs by Article Il, Sections 4 and 18. 134. Plaintiffs’ rights under the New Mexico Constitution afford them even greater protection than their rights under the United Stated Constitution. 135. Plaintiffs have suffered serious harms and losses as a direct result of the deprivation of their state constitutional rights and these deprivations of rights are the proximate cause of the serious harms and losses Plaintiffs have sustained. WHEREFORE, Plaintiffs request Judgment entered in their favor against Defendants in amounts to reasonably compensate each of them for their damages, Punitive damages against the individuals, costs of suit, pre- and post judgment interest, attorneys’ fees, and such other and additional relief as the Court may deem just and proper. Respectfully submitted, ALMANZAR & YOUNGERS, P.A. /s/ Joleen K. Youngers JOLEEN K_YOUNGERS PO Box 16089 Las Cruces, NM 88004-6089 (675) 541-8000 505 Cerrillos Road, Suite A104 Santa Fe, NM 87501 t: 505.820.0108 Attorney for Plaintiffs Wiliam “Deuce” Benjamin Jr. and William Benjamin zieJs/ Mark L. Pickett Mark L. Pickett The Pickett Law Firm, LLC PO Box 1239 Las Cruces, NM 88004-1239 t: 575.526.3338 mark@ iie.com Willie L. “Will” Marsaw JHCM LLP 1910 Pacific Ave. Suite 12050 Dallas, TX 75201-4526 t: 214.799.5522 marsaw@hemlav com Ramez Shamieh Myles Lenz Shamien Law PLLC 1111 W. Mockingbird Lane Suite 1160 Dallas, TX 75247 t 469.813.7332 ramez@shamiehlaw.com Attorneys for Plaintiff Shakiru (Shak) Odunewu rec