IN THE
SUPERIOR COURT OF THE STATE OF RIDGEWAY
SEAL_LOVE,
Plaintiff,
v.
IM_THUNDERR, in their official capacity as
a Trooper of the Ridgeway State Police,
Defendant.
Case No. RSC-CV-2473
RESPONSE TO MOTION TO
DISMISS
Plaintiff Seal_love, by and through the undersigned counsel submits this response to the
Government’s motion to dismiss.
ARGUMENT
I. Factual Arguments are Inappropriate in a Motion to Dismiss
The State comes forth saying that the plaintiff said to the defendant, “I don’t have
to send it; I would rather sue you then send it.”, along with other factual arguments in
their motion to dismiss. This is not alleged once in the complaint and regardless, “factual
arguments are inappropriate in a motion to dismiss.” yassen28 et al. v. Ridgeway
National Guard et al., RSC-AD-619. This court should “assume the veracity” of the
plaintiff’s “plausible” allegations which trump the defense’s factual allegations. Ashcroft
v. Iqbal, 556 US 662 (2009). To speak upon if probable cause exists or not, if or if not the
plaintiff concealed evidence–which has never been alleged or even touched upon, is
inappropriate.
II. Qualified Immunity is an Affirmative Defense
A qualified immunity defense is inappropriate to be brought up in a motion to
dismiss, as it is an affirmative defense. While some affirmative defenses may be brought
up in the motion to dismiss stage, the plaintiff contends that a qualified immunity one is
not one of them. Indeed, the Ridgeway Code of Statutes even recognizes that qualified
immunity is an affirmative defense: “Qualified immunity shall not be a valid affirmative
defense if the Solicitor General refuses to defend an agent of the government.” 1 R. Stat.
§ 3210. See Saucier v. Katz, 533 U.S. 194 (2001) (holding that a qualified immunity
defense is an affirmative defense).
Even if this was not the case, the court must look at the Harlow test established in
Harlow v. Fitzgerald, 457 U.S. 800 (1982), to determine whether the defendant should be
granted qualified immunity. Qualified immunity is granted if (1) the official believed that
their conduct was lawful; and (2) the conduct was objectively reasonable. The plaintiff,
as contended in the civil complaint, has already alleged that with all the factors that
happened, that the defendant’s conduct and actions were unreasonable. Indeed, while
“government officials performing discretionary functions generally are shielded from
liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.” Id.,
this is not always the case, especially in this matter.
The Harlow standard of qualified immunity precludes a plaintiff from alleging
the official's malice in order to defeat a qualified-immunity defense. By adopting a
purely objective standard, however, Harlow may be inapplicable in at least two types of
cases. In the first, the plaintiff can only obtain damages if the official's culpable state of
mind is established. See, e.g., Allen v. Scribner, 812 F.2d 426, 436 (CA9 1987); see
also1. Secondly, an official's conduct is not susceptible to a determination that it violated
clearly established law because it is regulated by an extremely general and deeply
entrenched norm, such as the command of due process or probable cause. The principle
is clearly established, but whether it would brand the official's planned conduct as illegal
often cannot be ascertained without reference to facts that may be in dispute. See
Reardon v. Wroan, 811 F.2d 1025 (CA7 1987) (police officers denied qualified immunity
on summary judgment because their conclusion of probable cause could be found
objectively unreasonable when the facts are viewed in light most favorable to the
plaintiffs); Jasinski v. Adams, 781 F.2d 843 (CA11 1986) (per curiam) (federal agent
1 Qualified Immunity for Government Officials: The Problem of Unconstitutional Purpose in Civil Rights
Litigation, 95 Yale L. J. 126, 136-137 (1985)
denied qualified immunity on summary judgment because of genuine issue of probable
cause); Deary v. Three Un-Named Police Officers, 746 F.2d 185 (CA3 1984) (police
officers denied qualified immunity on summary judgment because of genuine issue of
probable cause). See Anderson v. Creighton 483 U.S. 635 (1987) (holding that qualified
immunity turns on the objective reasonableness of an officer's actions, not an officer's
subjective beliefs).
CONCLUSION
The defendant does not meet the requirements for qualified immunity. Even if they did,
to raise a motion to dismiss for qualified immunity is inappropriate, it should be done in another
stage of the legal process. The motion to dismiss should be denied.
Respectfully submitted.
Date: 03/24/2024
JamesGardai
ATTORNEY FOR PLAINTIFF
Bar No. 24101
Counsel of Record
