THE STATE OF RIDGEWAY
IN THE SUPERIOR COURT FOR RIDGEWAY
takosull1,
Plaintiff,
v.
Acenxrblx, et al.
Defendants.
Hon. Arthur_Chen
Case No. RSC-CV-8640
PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
Plaintiff opposes Defendants' Motion to Dismiss Counts 2 and 3 and asks the Court to
deny it. Counts 1 and 4 are not challenged.
INTRODUCTION
Defendants argue that because they were acting as troopers, they cannot be sued in their
individual capacity. Ridgeway's statutes and the authorities Defendants cite say the opposite.
Count 2 has no capacity requirement at all. Count 3 has a capacity-of-naming provision, but it is
a curable pleading matter that expressly preserves individual financial liability. It is not a ground
for dismissal with prejudice.
A. Count 2 (§ 121.403) must stand because the statute imposes liability on "every
person" acting under color of law and contains no capacity requirement.
Section 121.403 provides that "[e]very person who, under color of any statute,
ordinance, regulation, custom, or usage," subjects another to a deprivation of rights "shall be
liable to the party injured." The statute makes acting under color of law the basis of liability. It
does not make it a reason to sue only the government. Defendants concede that § 121.403 "does
not contain the identical mandatory language found in § 121.404(b)" (Mot. at 4). That
concession ends the argument. The Legislature required official-capacity naming in §
121.404(b) and chose not to do so in § 121.403. Courts do not add to a statute a requirement the
Legislature left out.
Defendants rely on the "statutory scheme as a whole," citing §§ 122.004–122.008, but
those sections undercut their position:
§ 122.007 allows the Solicitor General to intervene "in cases against one's
individual capacity if they were in fact serving in an official capacity." That
language assumes that individual-capacity suits over conduct performed in an
official role are proper and expected. Defendants' theory would make this
provision meaningless.
§§ 122.005 and 122.008 govern the Solicitor General's duty to defend and when
the Solicitor General may refuse to defend an agent who acted outside the law,
directives, or standard operating procedures. They are rules about who defends a
suit. They are not rules about which suits may be filed.
§ 122.004, as Defendants quote it, provides that a proceeding brought against an
individual in official capacity "shall be construed as" a case against the
government. It describes the effect of an official-capacity suit. It does not forbid
individual-capacity suits.
The Complaint alleges that each Defendant personally deployed a taser against Plaintiff
(¶¶ 20, 28, 40, 54–55) and seeks redress for personal conduct (¶¶ 3, 5). That is a proper
individual-capacity claim under § 121.403.
B. The federal cases Defendants cite support Plaintiff.
Defendants cite federal decisions interpreting 42 U.S.C. § 1983. They are persuasive at
absolute most and do not control the construction of Ridgeway's statutes. They also do not help
Defendants.
Kentucky v. Graham, 473 U.S. 159, 165–66 (1985), states that "[p]ersonal-capacity suits
seek to impose personal liability upon a government official for actions he takes under color of
state law." Acting under color of law is the premise of a personal-capacity suit under Graham. It
is not a bar to one.
Will v. Michigan Department of State Police, 491 U.S. 58, 71 (1989), holds that an
official-capacity suit is a suit against the State and that States are not "persons" under § 1983 for
damages purposes. Will concerns when the State may be sued. It does not hold that an officer
acting under color of law cannot be sued personally. Defendants' "similar" citation to Hafer v.
Melo, 502 U.S. 21 (1991), is undeveloped and actually rejects their theory. Hafer held that state
officers may be held personally liable for damages under § 1983 for actions taken in their
official roles, and that acting under color of law does not shield an officer from
individual-capacity suit.
C. Count 3 (§ 121.404) should not be dismissed, and certainly not with prejudice.
Plaintiff acknowledges that § 121.404(b) provides that official-misconduct suits "shall
proceed in a form of quasi-official capacity, such that the defendants shall be named as parties
in official capacity." Dismissal, and especially dismissal with prejudice, is not the appropriate
remedy, for five reasons.
1. The provision is a matter of the form of naming, and any defect is curable. The
Complaint pleads every element of § 121.404: Defendants were public servants (¶ 61),
knowingly exercised official authority in an unauthorized manner (¶¶ 62–66), and
caused concrete injury (¶ 67). Defendants identify no deficiency in the facts or the claim.
The only alleged defect is how the Defendants are labeled. If the Court finds the
designation must change, the remedy is leave to amend the caption and capacity
allegations, not a with-prejudice dismissal that would extinguish a claim the Complaint
adequately pleads.
2. Section 121.404(b) itself preserves individual liability. The same subsection provides
that "where the court imposes monetary damages to the plaintiff, it shall be the duty of
the defendant's individual capacity to pay such damages as ordered." The Legislature
expressly contemplated that the individual officer would bear the financial consequences
of an official-misconduct judgment. Defendants therefore suffer no prejudice from the
Complaint's emphasis on their individual conduct and exposure, which is consistent with
¶¶ 3 and 5.
3. Capacity under § 121.404 depends on the Solicitor General, not on the Defendants'
preference. Under § 121.404(c)–(d), if the Solicitor General declines to defend a public
servant, the action "shall then be considered to be against the individual capacity of the
defendant." Section 122.008 permits the Solicitor General to refuse to defend an agent
who acted outside the government's laws, directives, orders, policies, or standard
operating procedures. Count 3 alleges that Defendants knowingly acted in an
unauthorized manner (¶ 66). Whether the case proceeds in official or individual capacity
therefore turns on a decision that belongs to the Solicitor General, and nothing in the
record shows the Solicitor General has made that decision or has even been notified. The
Motion was filed by private counsel for the individual Defendants. It does not say that
the Solicitor General is defending these claims under § 122.005 or has elected to
intervene under § 122.007.
4. Defendants cannot take the benefit of official-capacity treatment while avoiding its
consequences. Defendants insist the case is really against the government, yet they ask
the Court to dismiss the claim with prejudice and leave Plaintiff without a remedy for
the very conduct § 121.404 was enacted to address. Section 121.404(b) does not
authorize that result.
5. The Motion is internally inconsistent about relief. It seeks dismissal of Count 3 with
prejudice, then alternatively without prejudice. It also refers to Counts "II" and "III"
after referring to Counts 2 and 3. Plaintiff understands these to be the same counts.
DEFENDANT’S RELIEF REQUESTED
WHEREFORE, Defendant respectfully requests that this Court enter an order:
A. Denying the Motion to Dismiss as to Count 2;
B. Denying the Motion as to Count 3;
C. In the alternative, if the Court finds that Count 3 must name Defendants in an official
or quasi-official capacity, dismiss Count 3 without prejudice; and
D. Grant such other relief as the Court deems just and proper.
10/2/2026
Date takosull1
Plaintiff Pro Se
