RIDGEWAY SUPERIOR COURT
YASSEN28,
Plaintiff,
v.
NATIONAL GUARD,
Defendant.
Case No. RSC-AD-619
RESPONSE TO MOTION
PLAINTIFF, Yassen28 submits this response to Defendants’ motion to dismiss.
Defendants make a purely factual argument that is inappropriate for this court’s
consideration in a dismissal context. But even if the factual argument is entertained, it is wrong.
The motion to dismiss should be denied.
ARGUMENTS
I. DEFENDANTS’ FACTUAL ARGUMENTS ARE INAPPROPRIATE IN A
MOTION TO DISMISS.
The first ground for defendants' motion to dismiss is based on a factual argument, an
argument of which is not appropriate to be considered in a motion to dismiss. Defendants argue
that they denied the Plaintiff because of his moderation history, and they send two exhibits which
purportedly demonstrate that. Not only are these allegations of fact wrong, but they are
inconsistent with the factual allegations in the civil complaint. "Resolving factual disputes is not
appropriate at the motion to dismiss stage." See Liqui-Box Corp. v. Scholle IPN Corp., 449 F.
Supp. 3d 790 (2020). As such, this court should “assume the veracity,” Ashcroft v. Iqbal, 556 US
662 (2009), of well-pleaded allegations in the civil complaint which completely nullify
defendants’ fact based argument. This motion to dismiss should be denied as the first ground of
dismissal is not appropriate in the submission of a motion to dismiss, as it is a factual dispute
that should be saved for their main arguments during the trial itself. If the Defendants disagree
with the factual allegations of the complaint, it is their job to make that case at trial.
II. PLAINTIFF DOES NOT HAVE A MODERATION HISTORY.
Defendant alleges that the Plaintiff’s background check was denied because of the
Plaintiff’s moderation history. Even if the court entertained this purely factual argument, it would
still find that it was wrong. Plaintiff at one point faced moderation action, but after his appeals, it
was subsequently struck from his record. Consequently, if you look his name up on the
moderation database, no moderation action appears because he doesn’t have any—all of it was
reversed. This is not the conduct that the Administrative Procedures Act sought to prohibit.
Because the moderators reversed their prior judgement, it is as if no moderation action ever
existed because they changed their minds about implementing the action after they found out
they were wrong. In order to obtain the exhibits that the Defendant has, they had to ask a
moderator to look into the record that is only available to moderators. If anyone looks up the
name of the Plaintiff on the moderation portal, they would see that he has no valid moderation1
history. On that basis, the background check failure was flawed. Moreover, when a moderation
appeal has been accepted, it cannot be a valid basis for denial because that is contrary to the
intent of the statute.
Therefore, there is no plausible way that the Ridgeway National Guard could have
claimed the denial of the Plaintiff’s application to be for “previous moderation action” when
there is no public history of such whatsoever. This motion to dismiss should be denied because
the defendant’s can not support their claims of the alleged previous moderation action, therefore
not constituting any reason whatsoever as to why the Plaintiff’s application was denied as he met
the necessary prerequisites required under Section 2.7(c) of the Administrative Procedure Act.
III. PLAINTIFF IS INJURED WHEN HE IS DENIED EMPLOYMENT ON AN
UNLAWFUL BASIS.
The Defense attempts to argue that when Plaintiff is denied employment, denied the
opportunity to advance his career, and denied the opportunity to earn an income on an arbitrary
basis that is inconsistent with the law, that he suffers no injury. The Defense’s argument in this
regard creates too high a burden for litigants. This is a textbook civil injury that gives rise to this
cause of action. It is concrete and particularized. More broadly, the Defendants’ submissions
would completely forestall any civil action when someone is unlawfully denied employment in
our State. Even if it is not the most consequential, earth-shattering, injury to exist, it does not
mean that Plaintiff does not have a claim. Plaintiff must merely allege some “identifiable trifle.”
Bowman v. Wilson, 672 F. 2d 1145 (1982). He has more than carried that burden.
1 https://moderation.ridgewaycounty.org/lookup
Dated: August 12, 2022 Respectfully submitted.
STICKZA
Advocate
10 000
CLIFFORD2
Counsel
10 000
