STATE OF RIDGEWAY
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DOCKET NO. RSC-CV-841
Plaintiff
v.
BetaTheWolfGamer
Defendant
RESPONSE TO THE MOTION TO VACATE AND DISMISS
On the 5th of February, 2023, the Defendant filed a motion to dismiss and vacate on the
basis that the Plaintiff once again failed to plead facts sufficient to raise a claim for relief. Def.
Motion to Dismiss at 10. In arguing so, the Defendant brings up several points; but chiefly that
the Plaintiff’s suit ought to be construed as a due process suit under the fourteenth amendment
because of the claims of failure to protect. However, this suit cannot be construed as such. The
civil complaint clearly states that this is a suit under the official misconduct statute—not a due
process failure to protect claim. Although it bears certain similarities to a failure to protect case
under the due process clause, it is simply not.
The Defendant, in arguing such, asserts that the Official Misconduct statute is akin to that
of 42 U.S.C. §1983, a statute that allows individuals to sue an officer acting under the color of
state or federal law for a violation of constitutional rights. And the Defendant correctly states that
in order to plead this a certain degree of mens rea – or the intention to produce a particular result
– is required. But where the Defendant parts with reason and enters a particular state of mind that
only those seeking to reduce liability for flagrant misconduct can achieve is when he argues that
“The Official Misconduct statute itself imposes no state of mind requirement.” Motion to
Dismiss at 5. This assertion is highly erroneous and is foreclosed later by the Defendant’s own
motion. 1 R. Stat. 3114, the statute that establishes the tort of Official Misconduct, creates
liability on any public servant who “refrains from performing a duty which is imposed by law or
clearly inherent in the nature of his office,” (emphasis added). The Defendant entirely ignores the
word “refrains.” To refrain from doing something is to “avoid doing or stop yourself from doing
something.”1 For example, one might refrain from doing something by intentionally failing to do
something such as homework; or someone might negligently fail to do something. In both cases
a degree of mens rea as a requisite to liability is present: both of which amount to negligence. If
this court were to interpret this statute in any way, it would be rendering the would refrain
inoperative which it ought never to do. Colautti v. Franklin, 439 U.S. 379, 392. In both a strict
and loose construction of §3114 culpability is present and therefore it cannot be construed akin to
§1983. Moreover, the Defendant’s argument is foreclosed by the presence of a statute that is
actually akin to §1983.
1 R. Stat. §3115 reads nearly similar to 42 U.S.C. §1983.2 The presence of this statute is
clearly dispositive because when interpreting a statute a court cannot interpret it in a vacuum.
Because all parts of an act must be given an operation. Weinberger v. Hynson, Westcott Dunning,
412 U.S. 609, 633. But it is equally important that legislative intent must rule. Thankfully,
legislative intent does not conflict with the statutes in question: But the Defendant does. If this
court were to interpret the §3114 in the way that the Defendant suggests, that is disposing of all
mens rea elements, it would necessarily disregard the presence of §3115, creating a dangerous
precedent—and one that is also erroneous against the backdrop of proper statutory construction.
It is clear therefore that the Official Misconduct statute and §1983 are not the same.
Consequently, this Court cannot incorporate the relevant elements of a failure to protect case,
2 For the purpose of not cluttering the page, §3115 reads in relevant part “Every person who, under color of any
statute, ordinance, regulation, custom, or usage, subjects, or causes to be subjected, any citizen of the State of
Ridgeway or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other
proper proceeding for redress.”
1 Cambridge Dictionary Online (11th Ed.)
which emanates out of the due process clause and is actionable through §1983. It is true of
course, that this case does allege a failure to protect, but not under any constitutional violation.
Nay, the case presented is one of a novel nature—a nature that is akin to a due process claim.
The Defendant’s logic in this argument is analogous to the idiom that if one thing walks
like a duck, talks like a duck and swims like a duck then it must be a duck! But such abductive
reasoning is fundamentally flawed, especially in a Court. It assumes the simplest explanation for
a set of complicated circumstances and attempts to expound that in a way favorable to him.
Consider the example of the Digesting Duck. This duck could swim, bob its head up and down,
and digest food; and because of this one might assume that this is a bona fide duck: But there is a
caveat: the duck was mechanically based. Yet, what lesson does this teach? It teaches plainly that
things are not always as they seem, despite the evidence to suggest otherwise. And in this case
things are not as they seem to the Defendant.
But, this case is sufficiently pleaded. To determine whether this is, a court must test the
veracity of the allegations and analyze them to determine if the allegations, if taken as true and
construed in light most favorable to the non-movant, allow the court to “draw a reasonable
inference that the defendant is liable for the misconduct alleged.” xLazerify v. StudsPerSecond, 1
Rid. __, __. This is not a high bar as the Defendant would seem to argue, there must only be a
reasonable inference not a direct showing of all of the facts by preponderance at the onset of the
case. Even so, the Plaintiff meets this bar: For the complaint clearly alleges that the Defendant
refrained from protecting the Plaintiff whilst he was in his custody—which is a duty clearly
inherent in the nature of his office. A law enforcement officer cannot reasonably be expected to
protect all life, but it is plain that when they deprive an individual of their personal liberty to
defend themselves there exists an affirmative duty to protect this individual. One might argue
that mere pleading of this does not constitute the mens rea sufficient to raise a claim for relief,
however one would be wrong. Certainly, there is a common law presumption of mens rea as
“even a dog distinguishes between being stumbled over and being kicked.” O. Holmes, The
Common Law 3 (1881). And by alleging that the Defendant refrained from protecting the
Plaintiff’s life, an inherent standard of negligence is incorporated because of the definition of the
statute. Thus, this court can draw a “reasonable inference” of liability. xLazerify, supra.
CONCLUSION
The courts are bound by the same principles of democracy as the two other branches are
too. And to hold that 1 R. Stat. §3114 is analogous to 42 U.S.C. §1983 would necessarily violate
these principles, as the goal of a court is to give rise to the words of the legislative branch. Those
same principles of statutory construction that this court is hopelessly bound to also plainly
indicate that there is a mens rea requirement in the in §3114 – that is negligence. And this is
sufficiently pleaded. Therefore, the Defendant’s motion ought to be denied.
Respectfully submitted,
HolyRomanRyan
Executive Director.
Ridgeway Civil Liberties Union
Counsel of Record
