Petition for Writ of Certiorari — Hung Dang, Petitioner v. Kimberly Moore, M.D., et al.

Supreme Court briefJul 14, 2025

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FILED

JUL 14 2025

NJ^357

OFFICE OF THE CLERK

SUPREME COURT, U.S.

In The

Supreme Court of the United States

Hung Dang, MD,

Petitioner,

Kimberly Moore, et al,

Respondents.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Ninth Circuit

PETITION FOR WRIT OF CERTIORIARI

Hung Dang, MD,

’

27222 10^ Ave S.

Des Moines, WA 98198

(253) 973-9732

hungdang007@gmail.com

Petitioner Pro Se

RECEIVED

SEP - 3 2025

office of the clerk

SUPREME COURT U.Sj

RECEIVED

JUL 2 3 2025

OFFICE OF THE CLERK

SUPREME COURT u s:

QUESTIONS PRESENTED

In the Ninth Circuit’s opinion, Petitioner must

allege a prima facie case of discrimination and “the

requisite meeting of the minds to establish a

conspiracy” (App. 5-6) for his 42. U.S.C. §1981 and

§1983 claims, respectively. Despite Petitioners

voluminous Rule 56(c) “materials in the record”

opposing summary judgment motion, that court

concluded Petitioner failed to “adduce evidence”

asserting his §1981 and §1983 claims. Although

Petitioner’s constitutional challenges to the Final

[Disciplinary] Order’s validity were never raised,

briefed, argued, or decided in state courts, the Ninth

Circuit concluded, “Dang cannot now relitigate the

issue of the Disciplinary Order’s validity” (App. 4).

The questions presented are:

1. Does Federal Civil Procedure Rule 8(a) require only

ordinary, not heightened and detailed, pleading

standards for 42. U.S.C. §1981 and §1983 claims

post-Twom b ly/Iq ball

2. Must the Ninth Circuit employ the well-established .

Rule 56 procedures and review the record as a

whole to assess the sufficiency of Petitioner’s

evidence for his 42. U.S.C. §§1983, 1981, and

1985(3) claims instead of applying Rule 8(a)

plausibility pleading standard?

3. Does the Ninth Circuit contravene Haring v.

Prosise, 462 U.S. 306 (1983) in precluding

Petitioner’s First-, Fourth-, and Fourteenth

Amendment challenges to the state administrative

Final Order’s validity; constitutional challenges

that were never raised, briefed, argued, or

determined in state courts?

PARTIES TO THE PROCEEDINGS AND

RELATED PROCEEDINGS

The parties to the proceeding below are:

Petitioner:

Hung Dang, MD — Pro se PlaintiffZAppellant - is

a board-certified otolaryngologist, an Ear, Nose and

Throat (ENT) physician, employed by Group Health

Physicians (GHP) not by the Franciscan Health

System (FHS).

Respondents:

Private-Defendants/Appellees:

• Franciscan Health System (FHS) is a nonprofit

health system with a network of hospitals

including St. Joseph Medical Center (SJMC), St.

Clare Hospital (SCH), St. Francis Hospital (SFH),

and other hospitals in the southern Puget Sound

area.

• FHS employees: Defendants Moore, Clark,

Adams, and Patel

State-Defendants/Appellees:

• Mark Johnson, Washington’s Medical Quality

Assurance Commission (MQAC/WMC)1 member,

in his official capacity;

• William Brueggemann, Reviewing Commission

Member (RCM), in his individual capacity;

Medical Quality Assurance Commission (MQAC) was

renamed in 2019 as Washington Medical Commission (WMC).

iii

• Rick Glein, MQAC/WMC’s Legal Director, in his

individual capacity;

• Roman Dixon Jr., Presiding Administrative

Hearing Officer, Adjudicative Services Office, in

his individual capacity;

• Debra Defreyn, Assistant General Attorney

(AGA), in her individual capacity;

• Christina Pfluger, Assistant General Attorney

(AGA), in her individual capacity; and

• Timothy Slavin, MQAC/WMC’s Investigator, in

his individual capacity.

Proceedings below:

United States District Court proceeding:

• Petitioner filed his Complaint in the United

States District Court for Western Washington

(DCWWA) in Tacoma, WA on 07/29/2021. Case

No. 3:21-cv-05544-RJB.

• The DCWWA granted Private-Defendants’

successive Rule 12(b)(6) motions on 11/02/2021

and 11/03/2021.

• The DCWWA denied in part Petitioner’s timely

Motion for Reconsideration and ordered PrivateDefendants to respond to Plaintiffs motion as to

his 42 U.S.C. §1981 claim on 11/19/2021.

• The DCWWA denied Petitioner’s Motion for

Reconsideration and dismissed Petitioner’s

claims

against

Private-Defendants

02/28/2022.

• After discovery ended, the DCWWA granted

State-Defendants’ Rule 56 motion on 06/21/2023

and entered judgment against Petitioner on

06/22/2023.

United States Court of Appeals for the Ninth Circuit

(CA9) proceeding:

• Petitioner timely filed his Notice of Appeal to the

DCWWA’s judgment on 07/21/2023: No. 23-35505

• The Ninth Circuit affirmed the district court’s

orders granting Private-Defendants’ Rule

12(b)(6) motions and State-Defendants’ Rule 56

motion on 01/23/2025.

• The Ninth Circuit denied Petitioner’s timely

Petition for Panel Rehearing and Rehearing en

banc on 04/29/2025.

TABLE OF CONTENTS

QUESTIONS PRESENTED

PARTIES TO THE PROCEEDINGS AND RELATED

PROCEEDINGS

APPENDIX TABLE OF CONTENTS

vii

TABLE OF AUTHORITIES

...................... x

OPINIONS BELOW

;

JURISDICTION

CONSTITUTIONAL

AND

STATUTORY

PROVISIONS INVOLVED

.................... 1

INTRODUCTION

STATEMENT

.......................................................3

I. Group-Health Otolaryngologists

(GHP-ENT)

collectively refused to consult and be associated

with FHS’s outlying emergency rooms (ER)

physicians

.....................................

II. Private-Defendants’ racially disparate treatment

and harassment impaired Petitioner’s employment

terms and conditions

HLPrivate- and State-Defendants joined a concerted

effort of racially disparate treatment and selective

enforcement against Petitioner’s “refusal to

consult”

............................................ 5

IV. State-Defendants’ racially disparate treatment

against Petitioner’s First-Amendment petition

activity

V. The decisions below

REASONS FOR GRANTING THE PETITION........ 9

I. The recurring circuit conflict over employment

discrimination pleading standards again needs

resolution by this Court........................................ 10

A. This entrenched 10-2 circuit split percolated

through the federal circuits heretofore

without realistic resolution.......................... 13

B. The decision below contravenes §1981 plain

text and this Court’s precedents. ............... 21

C. Petitioner’s case is an ideal vehicle for

resolving the conflict...............................

II. 42 U.S.C. §1983 plainly does not impose a special

“heightened pleading requirement.”....... ........... 22

III. The Ninth Circuit’s failure to review and credit

Petitioner’s Rule 56(c) evidence contravenes this

Court’s well-settled precedents............................ 25

IV. The decision below directly contravenes this

Court’s Haring v. Prosise unanimous decision. 35

vii

APPENDIX TABLE OF CONTENTS

COURT OF APPEALS DECISION................... App. 1

Order denying rehearing:

FILED APR 29 2025

............................................................ App. 8

DISTRICT COURT ORDERS.......................... App. 10

I. Document 110 (Filed 06/21/23):.............App. 10

II. Document 63 (Filed 02/28/22):.............. App. 38

III. Document 49 (Filed 11/19/21):.............. App. 43

IV. Document 43 (Filed 11/03/21):.............. App. 52

V. Document 42 (Filed 11/02/21):........ ...... App. 60

RELEVANT STATUTORY PROVISIONS..... App. 77

42 U.S.C. §1981: Equal rights under the law.....

.................................................................... App. 77

42 U.S.C. §1983: Civil action for deprivation of rights

.............................................................. App. 77

42 U.S.C. §1985: Conspiracy to interfere with civil

rights.........................................

App. 78

42 U.S.C. §11111: Professional review......... App. 79

45 C.F.R. § 60.5 When information must be reported.

................................. ............................ App. 80

45 C.F.R. § 60.6 Reporting errors, omissions,

revisions or whether an action is on appeal.

............................................................... App. 81

EXCERPTS OF THE COMPLAINT...,............App. 83

Exhibit 1 to Petitioner’s Complaint: Defendant

Clark’s self-report letter to the Center for

Medicare and Medicaid Services (CMS)

........................................................ App. 104

viii

Exhibit 2 to Petitioner’s Complaint: Call

Coverage Attestation Agreement........ App. 106

III. Exhibit 3 to Petitioner’s Complaint: Drs. Deem’s

and Moreano’s Declarations................. App. 108

EXCERPTS OF STATE COURT OF APPEALS

OPINION.......................................................... App. 112

II.

WMC (MQAC) FINAL ORDER................. ....App. 127

Dr. Moreano’s Testimony Excerpts................ App. 151

Letter communications between Defendants Slavin

and Clark.......................................................... App. 160

Exhibit 104-88 to Petitioner’s Declarations for

partial summary judgment motion:..... App. 160

II. Exhibit 104-89 to Petitioner’s Declarations for

partial summary judgment motion...... App. 162

III. Exhibit 104-90 to Petitioner’s Declarations for

partial summary judgment motion...... App. 165

IV. Exhibit 104-95 to Petitioner’s Declarations for

partial summary judgment motion...... App. 167

V. Exhibit 104-96 to Petitioner’s Declarations for

partial summary judgment motion...... App. 169

Other Exhibits submitted below..................... App. 170

I. Reproduction of Exhibit #73-14: Email from

WMC Compliance Unit demanding personal

appearance............................................. App. 170

II. Reproduction of Exhibit #73-23: Emails from

Glein threatening more legal action ....App. 174

III. Excerpts of Dockets #83-1 and #83-2: StateDefendants’ Answers to Petitioner’s Requests

for Admission (RFA)..............................App. 180

IV. Reproduction of Exhibit 104-10: Email thread

regarding “incident report” in October 2011

............................................................... App. 186

V. Reproduction of Exhibit 104-12: Email thread

regarding other physicians’ refusal.... App. 189

VI. Reproduction of Exhibit 104-26: Email

confirming Iriye’s meeting with Kim Moore

.................... ........................................... App. 196

VII. Reproduction of Exhibit 104-28: Email thread

between GHP ENT physicians refusing to cover

for all FHS outlying hospitals after Iriye’s

meeting with Kim Moore...................... App. 198

VIII. Reproduction of Exhibit 104-115: Letter

terminating Petitioner’s Medicaid contract

.......................................................... . .App. 208

IX. Excerpts of Glein’s deposition (Docket # 107-18)

......... ...................................................... App. 211

TABLE OF AUTHORITIES

Cases

Adickes v. Kress Co., 398 U.S. 144 (1970)

............ ..24, 25, 27, 30, 31, 33

Allen v. McCurry, 449 U.S. 90, 98-99 (1980)

Ames v. Ohio Dept, of Youth Servs., 605 U.S.

(2025)

................................................................ 12

Anderson v. Liberty Lobby, Inc., All U.S. 242 (1986)

....................................................... 26, 31, 36

Ashcroft v. Iqbal, 556 U.S. 662 (2009)

2, 11, 22, 24

Austin v. Univ, of Or., 925 F.3d 1133 (CA9 2019).... 15

Beck v. Prupis, 529 U.S. 494 (2000)

Bekkem v. Wilkie, 915 F.3d 1258 (CA10 2019)...

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)

.................................. ............................. 2, 10, 11

Bing v. Brivo Sys., LLC, 959 F.3d 605 (CA4 2020) ..16

Bostock v. Clayton Cnty., 590 U.S. 644 (2020) ...22, 25

Boykin v. Keycorp, 521 F.3d 202 (CA2 2008)..

Brown v. Sessoms, 774 F.3d 1016 (CADC 2014)

Castleberry v. STI Grp., 863 F.3d 259 (CA3 2017)...16

Celotex Corp. v. Catrett, 477 U.S. 317 (1986)

....26, 27, 31

Chapman v. Houston Welfare Rts. Org., 441 U.S. 600

(1979)

Christensen v. Grant County Hosp, 152 Wn.2d 299

(Wash. 2004)

...........................................

Cicalese v. Univ, of Tex. Med. Branch, 924 F.3d 762,

766 (CA5 2019)

Comcast Corp. v. Natl Ass’n of African Am.-Owned

Media, 589 U.S. 327 (2020)

Connelly v. Lane Const. Corp., 809 F.3d 780 (CA3

2016)

Cook v. George's, Inc., 952 F.3d 93 (CA8 2020)

Crawford-El v. Britton, 523 U.S. 574 (1998)

Doe v. Columbia Univ., 831 F.3d 46 (CA2 2016)

Doe v. Samford Univ., 29 F.4th 675 (11th Cir. 2022)

Domino's Pizza v. McDonald, 546 U.S. 470 (2006)..22

Dot Foods, Inc. v. State, 185 Wash.2d 239 (2016)....38

Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336

(2005)

Eastman Kodak Co. v. Image Technical Services, Inc.,

504 U.S. 451 (1992)

Edwards v. Prime, Inc., 602 F.3d 1276 (CA11 2010)

EEOC v. Port Authority of N.Y. & N.J., 768 F.3d 247

(CA2 2014)..

..................................... ..15

Erickson v. Pardus, 551 U.S. 89 (2007)

10, 26

Fowler v. UPMC Shadyside, 578 F.3d 203 (CA3 2009)

................................................................. 15,21

Gee v. Pacheco, 627 F.3d 1178 (CA10 2010)

Gilbrook v. City of Westminster, 177 F.3d 839 (CA9

1999)

.................................................... 34

Glossip v. Gross, 576 U.S. 863 (2015)

10, 24

Gomez v. Toledo, 446 U.S. 635 (1980)

................ 24

Gonzaga Univ. v. Doe, 536 U.S. 273 (2002)

Griffin v. Breckenridge, 403 U.S. 88 (1971)

Haas v. Quest Recovery Servs., 549 U.S. 1163 (2007)

.....10

Hanna v. Plumer, 380 U.S. 460 (1965)

Haring v. Prosise, 462 U.S. 306 (1983)

i, 37, 38, 39

xii

Haslund v. Seattle, 86 Wash.2d 607 (1976)

Hill v. McDonough, 547 U.S. 573 (2006)

10, 24

Holloway v. Maryland, 32 F.4th 293 (CA4 2022) 16

Johnson v. City of Shelby, 574 U.S. 10 (2014)

Johnson v. Riverside Healthcare, 534 F.3d 1116 (CA9

2008)

8, 12

Jones v. Bock, 549 U.S. 199 (2007)

10, 24

Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229

(CA2 2007)

Keys v. Humana, Inc., 684 F.3d 605 (CA6 2012)

Khalik v. United Air Lines, 671 F.3d 1188 (CA10 2012)

..................................................20

King v. Seattle, 84 Wash.2d 239 (1974)

Knick v. Township of Scott, 588 U. S. 180 (2019) ....36

Leatherman v. Tarrant Cnty. Narcotics Intell. &

Coord. Unit, 507 U.S. 163 (1993)

Lindsay v. Yates, 498 F.3d 434 (CA6 2007)

Littlejohn v. City of New York, 795 F.3d 297 (CA2

2015)

...................

.15

Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938) 3

McCauley v. City of Chicago, 671 F.3d 611 (CA7 2011)

McCleary-Evans v. Maryland Dep’t of Transp., State

Highway Admin., 780 F.3d 582 (CA4 2015) ...16, 20

Medina-Velazquez v. Hernandez-Gregorat, 767 F.3d

103 (CAI 2014)

Menaker v. Hofstra Univ., 935 F.3d 20 (CA2 2019) .15

Mitchum v. Foster, 407 U.S. 225 (1972)

......... 36

Muldrow v. St. Louis, 601 U.S. 346 (2024)

Nance v. Ward, 142 S.Ct. 2214 (2022)

xiii

Nanko Shipping, U.S.A. v. Alcoa, Inc., 850 F.3d 461

(CADC 2017)

........................ 14

Nave v. City of Seattle, 415 P.2d 93 (Wash. 1966) 8

Patsy v. Florida Board of Regents, 457 U.S. 496 (1982)

Peterson v. Department of Ecology, 92 Wash.2d 306

(1979)

1.................... 38

Raj v. La. State Univ., 714 F.3d 322 (CA5 2013) 17

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133 (2000)

Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d 49

(CAI 2013)

................... 14

Runnion v. Girl Scouts Chicago, 786 F.3d 510 (CA7

2015)

..................................................... 20

Runyon v. McCrary, 427 U.S. 160 (1976)

Scott v. U.S. Bank, 16 F.4th 1204 (CA5 2021)

Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins.

Co., 559 U.S. 393 (2010)

Shoemaker v. Bremerton, 109 Wash.2d 504 (1987)..38

Snyder v. Phelps, 562 U.S. 443 (2011)

Starr v. Baca, 652 F.3d 1202 (CA9 2011)

Swanson v. Citibank, N.A., 614 F.3d 400 (CA7 2010)

18, 21

Tamayo v. Blagojevich, 526 F.3d 1074 (CA7 2008).. 18

Thomas v. JBS Green Bay, Inc., 120 F.4th 1335 (CA7

2024)

............................................................ 19

Tolan v. Cotton, 572 U.S. 650 (2014)

Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72

(CA2 2015)

15, 20

Warmington v. Bd. of Regents of Univ, of Minnesota,

998 F.3d 789 (CA8 2021)

.................. 19

Woods v. City of Greensboro, 855 F.3d 639 (CA4 2017)

.............................................................. 3, 16

Young v. United Parcel Serv., Inc., 575 U.S. 206 (2015)

........... 34, 35

Statutes

42 U.S.C. § 1985(3)

.....25, 33

42 U.S.C. §11111....

vii, 8

42 U.S.C. §1981 3, 12, 13, 14, 16, 18, 21, 22, 34, 35

42 U.S.C. §1983

8, 23, 24, 25, 37, 39

OPINIONS BELOW

The Ninth Circuit’s unpublished opinion is

reproduced in the Appendix at App. 1-7.

The district court’s unpublished orders are

reproduced at App. 10-76.

JURISDICTION

The Ninth Circuit issued its judgment on

01/23/2025 and denied Petitioner’s timely petition for

rehearing on 04/29/2025.

This Court has jurisdiction under 28 U.S.C. §

1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

First Amendment:

Congress shall make no law ... abridging the

freedom of speech ... or the right... to petition the

government for a redress of grievances.

Fourth Amendment:

The right of the people to be secure in thenpersons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and no warrants shall issue, but upon

probable cause, supported by oath or affirmation,

and particularly describing the place to be

searched, and the persons or things to be seized.

Fourteenth Amendment:

I. Section 1.

No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of

the United States; nor shall any state deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws....

Relevant Statutory Provisions: see Appendix.

INTRODUCTION

The Federal Rules “bring about uniformity in the

federal courts.” Hanna v. Plumer, 380 U.S. 460, 47273 (1965). Rule 8(a) requires only “a short and plain

statement of the claim showing that the pleader is

entitled to relief’ to provide the defendant with “fair

notice of what the plaintiffs claim is and the grounds

upon which it rests.” Id.; Bell Ail. Corp. v. Twombly,

550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556

U.S. 662,677-678 (2Q09) (“the pleading standard Rule

8 announces does not require ‘detailed factual

allegations’,” citing Twombly). Absent a specific

heightened pleading requirement by statutes or Rule

9, “ordinary pleading rules are not meant to impose a

great burden” on plaintiffs. Dura Pharmaceuticals,

Inc. v. Broudo, 544 U.S. 336, 347 (2005). “Rule 12(b)(6)

does not countenance ... dismissals based on a judge's

disbelief of a complaint's factual allegations.”

Twombly, 550 U.S. at 556. Pleading rules “serve as a

means of arriving at fair and just settlements of

controversies between litigants” and not as “barriers

which prevent the achievement of that end.” Maty v.

Grasselli Chemical Co., 303 U.S. 197, 200 (1938).

Neither should Rule 8(a) supplant Rule 56 as the

procedure for summary judgment despite Plaintiff’s

numerous documents suggestive of a civil conspiracy

between Private- and State-Defendants. “Manifestly,

the rule of Iqbal/Twombly was not intended to serve

as a federal court door-closing mechanism for

arguably weak cases.” Woods v. City of Greensboro,

855 F.3d 639, 652 (CA4 2017). Imposing a heightened

pleading standard in civil-rights cases shuts the

courthouse door to meritorious civil-right-violation

claims expressively granted by 42 U.S.C. §1981 et seq,

which requires no more than Rule 8(a) ordinary

pleading standard. Once plaintiff's meet such pleading

standards, Rule 8 “creates a categorical rule entitling

a plaintiff whose suit meets the specified criteria to

pursue his claim.” Shady Grove Orthopedic Assocs.,

P:A. v. Allstate Ins. Co., 559 U.S. 393, 398 (2010).

STATEMENT

I. Group-Health

Otolaryngologists

(GHP-ENT)

collectively refused to consult and be associated

with FHS’s outlying emergency rooms (ER)

physicians.

The detailed factual allegations from Petitioner’s

“lengthy” Complaint, abridged by the district court

(App. 61-63), are excerpted in the Appendix App. 83103. Petitioner is the only Asian in GHP-ENT group

in Tacoma, WA. Petitioner’s professional contracts

and livelihood depended on SJMC medical-staff

membership and an unblemished medical license. For

clinical privileges, GHP otolaryngologists agreed to be

on-call for unassigned patients at SMJC Emergency

Department but not the entire FHS. App. 61-62; App.

84-86, W-15.

FHS’s Chief Medical Officer (CMO) acknowledged

“some flaws” in its community-call ENT coverage in

2011 but failed to “take this responsibility very

seriously” and “sort through this issue” as promised.

Consequently, GHP ENT collectively refused to

consult with FHS’s outlying ER physicians. App. 8688, ^18-19, 22-23, 27. Dr. Moreano testified to this

fact during MQAC hearing. App. 151-159. While GHP

otolaryngologists collectively refused to consult,

Private- and State-Defendants (App. 181-182) racially

singled Petitioner out for reporting, investigation, and

selective enforcement. See §§II-IV infra.

II. Private-Defendants’ racially disparate treatment

and harassment impaired Petitioner’s employment

terms and conditions.

On 06/08/2014, unable to safely perform surgeries

because of his orthopedic injuries and “debilitating

pain”, Petitioner refused to consult with a SCH

provider for a transfer. “The physician assistant

apparently transferred the patient, “Patient C,” to

SJMC nonetheless, and Defendant Kimberly Moore,

M.D., a physician at SJMC, accepted Patient C for

transfer.” Petitioner “informed Moore that he was

unable to care for Patient C but that she, a boardcertified physician, could drain the abscess herself.”

Defendant Moore “transferred Patient C to a different

hospital, where Patient C was successfully treated.”

App. 62. Petitioner’s “refusal to consult” was self

reported as “a potential EMTALA violation” but the

Center for Medicare Services (CMS) took no action

against Petitioner after its investigation. App. 62-63.

Retaliating against Petitioner’s vocal opinion

about FHS’ unsafe patient transfer and care, Private-

Defendants conducted a sham peer-review with

invidious animus to coerce Petitioner into signing the

“Call Coverage Attestation Agreement” causing a

hostile workplace, Petitioner’s demotion, increased

mental and physical stress, and ultimately

constructive discharge. App. 91-96, 1H37-47. On

05/31/2016, Petitioner filed a claim with the EEOC

and resigned from GHP on 08/01/2017. App. 63.

III. Private- and State-Defendants joined a concerted

effort of racially disparate treatment and selective

enforcement against Petitioner’s “refusal to consult”.

Defendant Clark reported Petitioner’s “refusal to

consult” as a “potential EMTALA violation” (App. 104105) to CMS. After “CMS investigated and found that

SJMC, not Plaintiff, potentially violated the EMTLA”,

the self-report against Petitioner was forwarded to

MQAC.

App. 63. Agreeing to State-Defendant

Slavin’s request (App. 160-161), Private-Defendant

Clark conducted a warrantless search of Petitioner’s

medical-staff files for “past staff or patient

complaints” under RCW 18.130.050 “to take

disciplinary or corrective action, if warranted” and

reported four additional complaints without any

objection or demand for a warrant from StateDefendant Slavin (App. 96-98, ^51-54; App.162-169).

During MQAC hearing, Private-Defendant Moore

even perjured herself. Instead of correcting Moore’s

false testimony, State-Defendants Defreyn and Dixon

joined forces to suppress and exclude Petitioner’s

submission of impeaching evidence as “untimely per

WAC 246-11-390(7).” App. 130-134.

Petitioner’s “refusal to consult”, not any healthcare

services or advices rendered, was the common target

of Defendant Clark’s letter (App. 104-105) and MQAC

Final Order (App. 137-144, 1HJ1.8, 1.12-1.13, 1.15,

1.17, 2.4, 2.6).

IV. State-Defendants’ racially disparate treatment

against Petitioner’s First-Amendment petition

activity.

After its review, the Superior Court concluded,

“the delay in the order has prejudiced the Petitioner”

and “a two-year period of monitoring ... should have

been completed as of May 26, 2019” and ordered the

Final Order’s effective date “to be May 26, 2017 and

not September 29, 2017.” (App. 19). Ignoring this

order, MQAC neither changed the Final Order’s

effective date nor scheduled my timely personal

appearance before the 05/26/2019 completion of the

oversight because they purportedly “monitor for

future appeals” and “we didn't think it would be fair

to bring you in” (App. 178, 214).

Reading Petitioner’s legal “pleadings” in this

federal lawsuit, State-Defendant Glein “consulted

with “our AG and RCM” and “instructed” MQAC

compliance unit to “start reaching out” (App. 214-215)

for Petitioner’s personal appearance unexpectedly on

10/26/2021 (App. 173). Petitioner questioned the legal

basis for such demand but abided to appear on

01/14/2022 not 03/04/2022. App. 171-172. Petitioner

was informed on 01/14/2022 that his tentative

personal appearance was scheduled for 03/04/2022

(App. 170). Repeatedly, MQAC demanded Petitioner’s

personal appearance and harassed Petitioner with

more legal action under RCW 18.130.180(9) if he

failed to appear on 07/15/2022. App. 174-179.

Meanwhile other similarly situated physicians of

different races were afforded personal appearances for

timely and early termination of MQAC/WMC Orders.

App. 181-185. Plaintiff was denied of such equal

treatment under the law despite obliging to State MQAC-Defendants’ untimely demand for a personal

appearance.

V. The decisions below

Refusing to apply Washington’s abuse-of-process

tolling rule, the district court granted PrivateDefendants’ Rule 12(b) motions on statute-oflimitation ground except for Petitioner’s §1981 claim.

App. 67-71. Acknowledging that “Plaintiff discusses

his §1981 claim with more specificity” (App. 71), the

district court nevertheless dismissed Petitioner’s

§1981 claim because Petitioner “does not claim that

Private Defendants treated other non-minority

doctors differently under similar circumstances” (App.

75). On reconsideration motion, the district court

reversed its initial conclusion that Petitioner’s

complaint failed to state §1981 claim to rule PrivateDefendants “did not report other non-Asian doctors for

refusing to treat patients under similar

circumstances, and that the subsequent investigation

and administrative hearing created a hostile work

environment that interfered with this employment

contract in violation of 42 U.S.C. § 1981.” App. 39. It

also reversed its initial immunity ruling (App. 73) to

immunize Private-Defendants (App. 41-42) under 42

U.S.C. §lllll(a)(2).

However, the Ninth Circuit affirmed the district

court’s Rule 12(b) dismissal of Private-Defendants on

a different ground: Petitioner failed to plausibly (1)

allege “a meeting of the minds” between Private- and

State-Defendants to state a §1983 claim and (2) “plead

facts” for all prima facie elements of a §1981 hostilework-environment claim required by Johnson v.

Riverside Healthcare, 534 F.3d 1116, 1122-1123 (CA9

2008). App. 5-6.

The district court granted State-Defendants’ Rule

56 motion on their affirmative defenses without

reaching the merits of Petitioner’s First-, Fourth-, and

Fourteenth-Amendment claims. App. 21-34.

Rejecting Washington Supreme Court’s abuse-ofprocess tolling rule under Nave v. City of Seattle, 415

P.2d 93, 95 (Wash. 1966), the Ninth Circuit did not

address most of the State-Defendants’ affirmative

defenses and affirmed summary judgment for StateDefendants (App. 3-5) on the following grounds:

• Petitioner’s

timely

“remaining

§1983

constitutional claims” are collaterally estopped

(App. 4) even though Petitioner’s First-, Fourth-,

and Fourteenth-Amendment challenges to

MQAC Final Order’s constitutional validity were

NOT litigated and necessarily determined in

state-court judgment (App. 112-126);

• Petitioner “failed to establish a genuine dispute

of material fact that the State Defendants'

conduct was "sufficiently severe or pervasive" as

to create a hostile work environment” for §1981

claim (App. 4) despite Petitioner’s showing of

documentary evidence that State-Defendants’

racially selective enforcement was the reason for

Petitioner’s Medicaid contract being terminated

(App. 208-210);

• Petitioner “did not adequately allege the

requisite meeting of the minds to establish a

conspiracy for his § 1983 claim, let alone adduce

evidence raising a genuine dispute of material

fact that such an agreement was reached” and

thus “Dang's §1985(3) claim against them

necessarily fails” (App. 5). However, to support

Petitioner’s motion for partial summary

judgment and oppose State-Defendants’ Rule 56

motion, Petitioner submitted a 61-page

declarations with over 100 exhibits including

State-Defendants’ answers to Requests for

Admission, deposition transcripts, and email

communications. The Ninth Circuit (App. 5) did

not address Petitioner’s Rule 56(c) “materials in

the record” “asserting that a fact cannot be or is

genuinely disputed” that Private- and StateDefendants, acting in concert under color of state

law RCW 18.130 (the Uniform Disciplinary Act),

infringed on Petitioner’s constitutional and

federal rights under the First, Fourth, and

Fourteenth Amendments and §1981.

REASONS FOR GRANTING THE

PETITION

Under this Court's jurisprudence, “federal courts

ordinarily have no warrant to impose heightened

pleading standards not prescribed by statute or rule.”

Haas v. Quest Recovery Servs., 549 U.S. 1163, 1164

(2007) (Ginsburg, J., concurring). “Specific pleading

requirements are mandated by the Federal Rules of

Civil Procedure, and not, as a general rule, through

case-by-case determinations of the federal courts.”

Glossip v. Gross, 576 U.S. 863, 879-880 (2015); Jones

v. Bock, 549 U.S. 199, 213 (2007) (unanimous

decision); Hill v. McDonough, 547 U.S. 573, 582 (2006)

(unanimous decision).

The Ninth Circuit’s improper imposition of a

heightened pleading burden on pro se Petitioner’s civil

rights claims is an “even more pronounced” departure

from “the liberal pleading standards set forth by Rule

8(a).” Erickson v. Pardus, 551 U.S. 89, 94 (2007); see

Twombly, 550 U.S. at 570 (the “use of a heightened

pleading standard for Title VII cases was contrary to

the Federal Rules' structure of liberal pleading

requirements.”). Also, the Ninth Circuit’s use of the

heightened pleading standards at the summary

judgment stage supplants Rule 56 and this Court’s

well-established precedents on summary-judgment

procedures. This case meets the Court’s Rule 10

criteria for review of paramount legal questions

regarding Rules 8(a) and 56 in civil-rights litigation in

federal courts.

The recurring circuit conflict over employment

discrimination pleading standards again needs

resolution by this Court.

Two decades ago, this Court resolved this very

circuit-court split and unanimously ruled that “the

Federal Rules do not contain a heightened pleading

standard for employment discrimination suits” and

“an employment discrimination plaintiff need not

plead a prima facie case of discrimination.”

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515

(2002). This Court “has never indicated that the

requirements for establishing a prima facie case

under McDonnell Douglas also apply to the pleading

standard that plaintiffs must satisfy in order to

survive a motion to dismiss.” Id. at 510-511. Several

years later, this Court reaffirmed that Rule 8 requires

a “short and plain statement of the claim showing that

the pleader is entitled to relief’ NOT “detailed factual

allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

555 (2007). However, Twombly and Iqbal retired the

“no sets of facts” and declared a new “plausibility”

pleading standard for all civil actions. Reaffirming

Swierkiewicz, Twombly rejected “a heightened

pleading requirement” of detailed facts “beyond those

necessary to state a claim and the grounds showing

entitlement to relief.” Id. Indeed, to defeat Rule

12(b)(6) motions, complaints only need “sufficient

factual matter, accepted as true, to state a claim to

relief that is plausible on its face.” Iqbal, 556 U.S. at

678. Subsequently reaffirming Swierkiewicz’s holding

that “imposing a heightened pleading standard in

employment discrimination cases conflicts with

Federal Rule of Civil Procedure 8(a)(2),” this Court

advised that Twombly and Iqbal instruct that

plaintiffs only “must plead facts sufficient to show

that [their] claim has substantive plausibility” and

need “do no more to stave off threshold dismissal for

want of an adequate statement of their claim.”

Johnson v. City of Shelby, 574 U.S. 10,12 (2014). “The

federal rules effectively abolish the restrictive theory

of the pleadings doctrine,” making it “unnecessary to

set out a legal theory for the plaintiffs claim for

relief.” Id. (citation omitted). In this Court’s latest

unanimous decision, Justice Thomas again reaffirmed

that “the [prima facie case of discrimination]

framework is inapplicable at the pleading stage.”

Ames v. Ohio Dept, of Youth Servs., 605 U.S.

(2025), No. 23-1039 slip op., Thomas, J. concurring

opinion at 9 (citing Swierkiewicz v. Sorema N. A., 534

U.S. 506, 508 (2002)). As an evidentiary standard, the

hostile-work-environment prima facie elements under

the McDonnell Douglas framework are used only as “a

tool for assessing claims, typically at summary

judgment, when the plaintiff relies on indirect proof of

discrimination.” Comcast Corp. v. Natl Ass’n of

African Am.-Owned Media, 589 U.S. 327, 340 (2020).

Nevertheless, according to Johnson v. Riverside

Healthcare, 534 F.3d 1116, 1122-1123 (CA9 2008), on

which the decision below relied (App. 6), to state a

§1981 hostile-work-environment claim, Plaintiff must

allege “(1) [he] was subjected to verbal or physical

conduct because of [his] race, (2) the conduct was

unwelcome, and (3) the conduct was sufficiently

severe or pervasive to alter the conditions of [his]

employment and create an abusive work

environment.” The Ninth Circuit discounted the

district Court’s finding that Private-Defendants “were

motivated to report him by racial animus, that they

did not report other non-Asian doctors for refusing to

treat patients under similar circumstances...” (App.

39) and demanded from Petitioner a heightened

pleading standard contrary to Rule 8(a)(2) and

Swierkiewicz. Likewise, post-Iqbal the Eleventh

Circuit “required” §1981 plaintiffs to allege all prima

facie hostile-work-environment elements to survive

Rule 12(b)(6) motions. Edwards v. Prime, Inc., 602

F.3d 1276, 1300 (CA11 2010). Meanwhile, postIqbal!Twombly, ten other circuits rejected the prima

facie pleading standard demanded by the Ninth and

Eleventh Circuits, recreating the very circuit split

Swierkiewicz resolved unanimously in 2002.

A. This entrenched 10-2 circuit split percolated

through the federal circuits heretofore without

realistic resolution.

In the DC Circuit, at the pleading stage, “the

district court cannot throw out a complaint even if the

plaintiff did not plead the elements of a prima facie

case.” Brown v. Sessoms, 774 F.3d 1016, 1022-1023

(CADC 2014) (quoting Brady v. Office of Sergeant at

Arms, 520 F.3d 490, 493 (CADC 2008)). Further

splitting from the Ninth, the DC Circuit clarified that

a §1981 plaintiff can raise an inference of

discrimination by showing “that she was treated

differently from similarly situated employees who are

not part of the protected class.” Id. Plaintiff’s “initial

burden” pleading §1981 claims is “not onerous.”

Nanko Shipping, U.S.A. v. Alcoa, Inc., 850 F.3d 461,

467 (CADC 2017). The divided court concluded that by

alleging Alcoa, aware of one of the plaintiff’s race,

treated his company “less favorably than similarly

situated white-owned companies,” Nanko raised its

“right to relief above the speculative level.” Id.

“Allegations regarding comparators, racial comments,

and pretext obviously strengthen a discrimination

complaint, but the evidentiary requirements the

dissent identifies are inapplicable at the pleading

stage.” Id.', see Ames, supra at 12 (“the [prima facie

case of discrimination] framework is inapplicable at

the pleading stage”).

In the First Circuit, the prima facie case is neither

“a pleading standard” nor “the appropriate

benchmark for determining whether a complaint has

crossed the plausibility threshold.” Rodriguez-Reyes

v. Molina-Rodriguez, 711 F.3d 49, 52 (CAI 2013). “To

achieve plausibility, a complaint need not plead facts

sufficient to make a prima facie case or allege all facts

necessary to succeed at trial.” Medina- Velazquez v.

Hernandez-Gregorat, 767 F.3d 103,.108 (CAI 2014).

Citing Swierkiewicz, the Second Circuit declared

“plaintiffs need not plead a prima facie case of

discrimination based on hostile work environment” at

the pleading stage, Kassner v. 2nd Ave. Delicatessen

Inc., 496 F.3d 229, 240-241 (CA2 2007), and “both

Twombly and Erickson explicitly disavow that Rule

8(a) requires any plaintiff - let alone a pro se plaintiff

- to plead "specific facts",” Boykin v. Keycorp, 521 F.3d

202, 215 (CA2 2008). Citing Littlejohn v. City of New

York, 795 F.3d 297, 309 (CA2 2015) and EEOC v. Port

Authority of N.Y. & N.J., 768 F.3d 247 (CA2 2014), the

Second Circuit further split from the Ninth and

Eleventh Circuits to conclude, “a discrimination

complaint need not allege facts establishing each

element of a prima facie case of discrimination to

survive a motion to dismiss.” Vega v. Hempstead

Union Free Sch. Dist., 801 F.3d 72, 84 (CA2 2015).

Plaintiffs “need only give plausible support to a

minimal inference of discriminatory motivation.” Id.;

Menaker v. Hofstra Univ., 935 F.3d 20, 30 (CA2 2019);

Doe v. Columbia Univ., 831 F.3d 46, 55 n.8 (CA2 2016)

(“At the pleading stage, district courts would do well

to remember this exceedingly low burden that

discrimination plaintiffs face....”); contra Austin v.

Univ, of Or., 925 F.3d 1133, 1137 (CA9 2019)

(explicitly splitting with the Second Circuit to state

“We read the Second Circuit’s application of the

McDonnell Douglas presumption at the pleading

stage as contrary to Supreme Court precedent, and we

decline to embrace that approach”).

Concluding “because Conley has been specifically

repudiated by both Twombly and Iqbal so too has

Swierkiewicz, at least insofar as it concerns pleading

requirements and relies on Conley,” the Third Circuit

nevertheless declared even yost-Twombly, “a plaintiff

is not required to establish the elements of a prima

facie case but instead, need only put forth allegations

that raise a reasonable expectation that discovery will

reveal evidence of the necessary element.” Fowler v.

UPMC Shadyside, 578 F.3d 203, 211, 213 (CA3 2009).

As an evidentiary standard, a prima facie case is “not

a pleading requirement” and thus “not a proper

measure of whether a complaint fails to state a claim.”

Connelly v. Lane Const. Corp., 809 F.3d 780, 788-789

(CA3 2016). Whether hostile-work-environment

allegations are true and amount to “pervasiveness”

can only “be answered after discovery.” Castleberry v.

STI Grp., 863 F.3d 259, 266 (CA3 2017).

“Swierkiewicz remained binding precedent” in

the Fourth Circuit; plaintiffs “need not plead facts

sufficient to establish a prima facie case of race-based

discrimination to survive a motion to dismiss” a §1981

claim. Woods v. City of Greensboro, 855 F.3d 639, 646648 (CA4 2017) (citing McCleary-Evans v. Maryland

Dep’t of Transp., State Highway Admin., 780 F.3d 582,

585 (CA4 2015)). P ost-Iqbal!Twombly, plaintiffs must

“allege facts to satisfy the elements of a cause of action

created by [Title VII or §1981].” Id. at 648; Bing v.

Brivo Sys., LLC, 959 F.3d 605, 619 (CA4 2020)

(Traxler, J., dissenting). Rule 12(b)(6) motions test the

sufficiency of a complaint and cannot “resolve contests

surrounding the facts, the merits of a claim, or the

applicability of defenses.” Bing, 959 F.3d at 616. Thus,

the “similarly situated analysis typically occurs in the

context of establishing a prima facie case of

discrimination, not at the 12(b)(6) stage.” Holloway v.

Maryland, 32 F.4th 293, 299 (CA4 2022) (quoting

Woods v. City of Greensboro, 855 F.3d 639, 651 (CA4

2017). Accordingly, despite “thin” facts suggesting

racial motivation in plaintiff Holloway’s complaint,

“pretext allegations” accepted aS true at the pleading

stage “support an inference of race discrimination,”

nudging plaintiff’s claim “across the line from

conceivable to plausible” to satisfy Iqbal/Twombly

standard. Id.

In the Fifth Circuit, “a plaintiff need not make out

a prima facie case of discrimination under McDonnell

Douglas in order to survive a Rule 12(b)(6) motion to

dismiss.” Cicalese v. Univ, of Tex. Med. Branch, 924

F.3d 762, 766 (CA5 2019). Requiring “a showing of

each prong of the prima facie test for disparate

treatment at the pleading stage” is error. Id. (quoting

Raj v. La. State Univ., 714 F.3d 322, 331 (CA5 2013)).

Being “an evidentiary standard, not a pleading

requirement,” “the McDonnell Douglas standard does

not govern at the motion-to-dismiss stage.” Scott v.

U.S. Bank, 16 F.4th 1204,1209 (CA5 2021) (citing Raj

v. La. State Univ. , 714 F.3d 322, 331 (CA5 2013)).

Applying the McDonnell Douglas framework can be a

“helpful” to frame the motion-to-dismiss inquiry into

a complaint’s plausibility but “must be done with care”

to avoid “requiring a plaintiff to plead something more

than the "ultimate elements" of a claim” and

“subjecting a plaintiffs allegations to a rigorous

factual or evidentiary analysis under the McDonnell

Douglas framework in response to a motion to

dismiss.” Id. (citing Cicalese v. Univ, of Tex. Med.

Branch , 924 F.3d 762, 767 (CA5 2019)).

Addressing “whether, at the pleading stage, a

housing-discrimination plaintiff must establish each

of the elements of the prima facie case to survive a

motion to dismiss the complaint” in a §§1981, 1982,

and 3604 case, the Sixth Circuit concluded that

Swierkiewicz made “clear that McDonnell Douglas

does not set the standard for pleading any complaint.”

Lindsay v. Yates, 498 F.3d 434, 439-440 (CA6 2007).

Concluding “Twombly and Iqbal did not alter its

holding in Swierkiewicz” and “it would be inaccurate

to read Twombly and Iqbal so narrowly as to be the

death of notice pleading,” the Sixth Circuit reversed

the district court’s Rule 12(b)(6) motion grant for

§1981 and Title VII claims because “it was error for

the district court to require Keys to plead a prima facie

case under McDonnell Douglas in order to survive a

motion to dismiss.” Keys v. Humana, Inc., 684 F.3d

605, 610 (CA6 2012).

The Seventh Circuit cautioned that Twombly

“must not be over-read” to “supplant the basic notice

pleading standard.” Tamayo v. Blagojevich, 526 F.3d

1074, 1082-1083 (CA7 2008). Requiring “something

more than a general recitation of the elements of the

claim,” the Tamayo court “reaffirmed the minimal

pleading standard for simple claims of race or sex

discrimination.” Id. at 1084. Thus, plaintiffs must

include “enough details about the subject-matter of

the case to present a story that holds together.”

Swanson v. Citibank, N.A., 614 F.3d 400, 404-405

(CA7 2010). Accordingly, for a racial discrimination

claim, identifying “the type of discrimination” the

plaintiff thought occurred, “by whom, ... and when”

was “all she needed to put in her complaint.” Id. In its

starkest split from the Ninth and Eleventh Circuits,

the Seventh Circuit most recently rejected the district

court’s pleading requirement matching all hostilework-environment elements to survive Rule 12(b)(6)

motions. “This is the exact requirement rejected by

the Supreme Court in Swierkiewicz. That something

must be proved (if plaintiff is to win) does not imply

that it must be alleged in the complaint.” Thomas v.

JBS Green Bay, Inc., 120 F.4th 1335, 1338 (CA7

2024). “All the complaint need do is state a grievance.

Details and proofs come later.” Id.

Swierkiewicz accepted the Eighth Circuit’s long

standing stance: “to measure a plaintiffs complaint

against a particular formulation of the prima facie

case at the pleading stage is inappropriate.” 534 U.S.

at 512 (quoting Ring v. First Interstate Mortgage, Inc.,

984 F.2d 924, 927 (CA8 1993)). Post-Iqbal!Twombly,

the Eighth and First Circuits agreed: Swierkiewicz

“negated any need to plead a prima facie case in the

discrimination context and emphasized that the

prima facie model is an evidentiary, not a pleading,

standard.” Warmington v. Bd. of Regents of Univ, of

Minnesota, 998 F.3d 789, 796 (CA8 2021) (quoting

Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d 49,

53 (CAI 2013)). Splitting with the Ninth Circuit (see

supra p.15), the Eighth embraced the Second Circuit’s

approach, “facts alleged must give plausible support

to the reduced requirements that arise under

McDonnell Douglas” thus “reduc[ing] the facts needed

to be pleaded under Iqbal.” Id. (quoting Littlejohn v.

City of New York, .795 F.3d 297, 310 (CA2 2015)).

Thus, “there is no need to set forth a detailed

evidentiary proffer in a complaint.” Id. Under

Swierkiewicz, to defeat Rule 12(b)(6) motions,

plaintiffs “need not plead facts establishing a prima

facie case of discrimination.” Cook v. George's, Inc.,

952 F.3d 935, 939 (CA8 2020).

Finally, the Tenth Circuit noted “the plausibility

standard has been criticized by some as placing an

improper burden on plaintiffs, denying them proper

access to the courts” before discovery. Gee v. Pacheco,

627 F.3d 1178, 1185 (CA10 2010). To defeat Rule

12(b)(6) motions, “while Plaintiff is not required to set

forth a prima facie case for each element, she is

required to set forth plausible claims,” Khalik v.

United Air Lines, 671 F.3d 1188, 1193 (CA10 2012);

i.e., Plaintiff must plead some set of facts, not just

legal conclusions, “that taken together plausibly

suggest differential treatment of similarly situated

employees,” Bekkem v. Wilkie, 915 F.3d 1258, 12741275 (CA10 2019) (quotingHwang v. Kan. State Univ.,

753 F.3d 1159, 1164 (CA10 2014)).

This 10-2 Circuit split should be resolved because

of the well-recognized “uncertainty and variation” in

pleading standards for discrimination cases post

TwomblytIqbal. Runnion v. Girl Scouts Chicago, 786

F.3d 510, 520 (CA7 2015) (“In the wake of Twombly

and Iqbal, there remain considerable uncertainty and

variation among the lower courts as to just how

demanding pleading standards have become.”); Vega,

801 F.3d at 83 (stating “uncertainty lingered as to

whether Twombly and Iqbal overruled Swierkiewicz

entirely”); McCauley v. City of Chicago, 671 F.3d 611,

621 (CA7 2011) (HAMILTON, J., dissenting in part)

(flqbal is in serious tension with these other decisions,

rules, and forms, and the Court's opinion fails to

grapple with or resolve that tension”); McClearyEvans, 780 F.3d at 590 (WYNN, J., dissenting in part)

(“The apparent tension between the Court's decisions

in Iqbal and Swierkiewicz is well-documented”);

Swanson, 614 F.3d at 410 (POSNER, J., dissenting in

part, citing Fowler, 578 F.3d at 211) (Swierkiewicz “is

regarded in some quarters as dead after Iqbal’); Starr

v. Baca, 652 F.3d 1202, 1216 (CA9 2011) (The panel

majority states “it is difficult to know” after Iqbal

whether to apply “the more demanding standard” of

Twombly!Iqbal or “the usual lenient pleading

standard under Rule 8(a)” of Swierkiewicz).

Concurring in Doe v. Samford Univ., 29 F.4th 675,

693-697 (11th Cir. 2022), Judge Jordan opined,

“Familiarity, however, does not always mean clarity”

with the Twombly/Iqbal facial plausibility standard

and discussed in details the “linguistic problems” of

“an incredibly thin line” between the words plausible

and probable. Judge Jordan argued Iqbal’s “reHance

on judicial experience and common sense” has

“analytical difficulties” because these trait “are not

objectively uniform across the federal judiciary.” Id. at

694 (citing Muransky v. Godiva Chocolatier, Inc., 979

F.3d 917, 965 n.5 (11th Cir. 2020) (en banc) (Jordan,

J., dissenting)).

B. The decision below contravenes §1981 plain text

and this Court’s precedents.

The decision below cannot be reconciled with 42

U.S.C. §1981 plain text: the rights to “make and

enforce contracts” in “the making, performance,

modification, and termination of contracts, and the

enjoyment of all benefits, privileges, terms, and

conditions of the contractual relationship” “are

protected

against

impairment

by”

racial

discrimination. Accordingly, “Section 1981 offers

relief ... when racial discrimination impairs an

existing contractual relationship, so long as the

plaintiff has or would have rights under the existing

... contractual relationship,” Domino's Pizza v.

McDonald, 546 U.S. 470, 476 (2006). The word

“discriminate” refers to “differences in treatment that

injure” plaintiffs in a protected racial class. Muldrow

v. St. Louis, 601 U.S. 346, 355 (2024) (quoting Bostock

v. Clayton County, 590 U.S. 644, 681 (2020)).

Petitioner’s “claim has facial plausibility” because

Petitioner’s “factual content” allows the district court

“to draw the reasonable inference that the defendant

is liable for the misconduct alleged,” Iqbal, 556 U.S. at

678, in its order (App. 39): “Plaintiff argues ... that

[Private-Defendants] did not report other non-Asian

doctors for refusing to treat patients under similar

circumstances, and that the subsequent investigation

and administrative hearing created a hostile work

environment that interfered with this employment

contract in violation of 42 U.S.C. §1981.” The district

court’s finding is not a clearly erroneous inference of

Petitioner’s non-conclusory factual allegations (App.

84-99, W-7,11,14-15, 18-19, 22-23, 26-30, 32-47, 51-

53, 59, 62; App. 108-111). Such disparate treatment of

Petitioner’s “refusal to consult” impairs his §1981

right in “the making, performance, modification, and

termination of contracts, and the enjoyment of all

benefits, privileges, terms, and conditions of the

contractual relationship” because of no other reason

but for his race.

C. Petitioner’s case is an ideal vehicle for resolving

the conflict.

This case has a complete record with undisputed

facts and no jurisdictional defect. Resolution of the

questions presented is outcome-dispositive in this

case. Most importantly, this entrenched circuit split is

over the historic federal Civil Rights Act of 1866 that

protects millions of Americans from employment

discrimination. That protection by §1981 “against

impairment by nongovernmental discrimination and

impairment under color of State law” should not

depend on geographical happenstance.

II. 42 U.S.C. §1983 plainly does not impose a special

“heightened pleading requirement.”

The Ninth Circuit’s demand - “to plead a § 1983

claim”, Petitioner must plead “allegations plausibly

suggesting the Private Defendants had a meeting of

the minds with Defreyn, Pfluger, or any of the State

Defendants to violate Dang's constitutional rights”

and “the requisite meeting of the minds to establish a

conspiracy for his §1983 claim” (App. 5-6) — goes

beyond Rule 8(a) liberal pleading requirement. Such

mandate contravenes 42 U.S.C. §1983 text, which

requires no “conspiracy” allegation or heightened

pleading to state Petitioner’s civil-right-violations

claims. Indeed, pleading “the requisite meeting of the

minds to establish a conspiracy” is never required to

state a §1983 claim under this Court’s precedents.

Merely a mechanism for enforcing individual

rights “secured by the Constitution and laws” of the

United States, “§1983 by itself does not protect anyone

against anything,” including a conspiracy. Gonzaga

Univ. v. Doe, 536 U.S. 273, 285 (2002); Chapman v.

Houston Welfare Rts. Org., 441 U.S. 600, 617 (1979).

Enacted long ago to preserve “human liberty and

human rights” and vindicate “cherished constitutional

guarantees,” “§1983 is to be construed generously to

further its primary purpose.” Gomez v. Toledo, 446

U.S. 635, 638-639 (1980). “By the plain terms of

§1983”, this Court unanimously rejected any

additional pleading requirement because “only two

allegations,” that (1) Plaintiff was deprived of federal

right(s) by (2) someone acting under color of state law,

“are required” to state a §1983 cause of action. Id. at

640; Adickes v. Kress Co., 398 U.S. 144, 152 (1970)

(“The terms of §1983 make plain two elements that

are necessary for recovery”). Years later, this Court

again unanimously rejected heightened pleading

standards for §1983 cases. Leatherman v. Tarrant

Cnty. Narcotics Intell. & Coord. Unit, 507 U.S. 163,

168 (1993). Even post-Twombly/Iqbal, this Court

rejected any special pleading requirement for §1983

claims because “§1983 alone does not impose a

heightened pleading requirement.” Glossip v. Gross,

576 U.S. 863, 879-880 (2015). “Specific pleading

requirements are mandated by the Federal Rules of

Civil Procedure, and not, as a general rule, through

case-by-case determinations of the federal courts.” Id.;

Jones v. Bock, 549 U.S. 199, 213 (2007) (unanimous

decision); Hill v. McDonough, 547 U.S. 573, 582 (2006)

(unanimous decision).

Notably, under the “facial plausibility” standard

in Iqbal, 556 U.S. at 678, Petitioner “pleads factual

content” allowing the Western Washington district

court (App. 60-61) to draw the following inference:

More specifically, he alleges that Private

Defendants: (1) conspired with state officials to

deprive him of rights secured by the First,

Fourth, Fifth, and Fourteenth Amendments to

the United States Constitution in violation of

42 U.S.C. §1983; (2) racially discriminated

against and harassed him in violation of 42

U.S.C. §1981; (3) conspired to deprive him of

constitutional rights in violation of 42 U.S.C. §

1985(3);...

Indeed, Petitioner plausibly plead “his §1983 claim”

that State-Defendants acting under color of state law

RCW 18.130 violated Petitioner’s First-, Fourth-, and

Fourteenth-Amendment and §1981 rights (App. 96102, HU51-53, 59, 62, 75-76, 82-83, 92, 97-98). PrivateDefendants “jointly engaged with state officials in the

prohibited action, are acting 'under color' of law for

purposes of the statute.” Adickes, 398 U.S. at 152. The

Ninth Circuit’s demand for allegation of “the requisite

meeting of the minds to establish a conspiracy for his

§1983 claim” (App. 5) is exactly the “extratextual”

detraction from “old statutory terms” of §1983 that,

this Court warned, “would deny the people the right

to continue relying on the original meaning of the law

they have counted on to settle their rights and

obligations.” Bostock v. Clayton Cnty., 590 U.S. 644,

654-555 (2020).

The Ninth Circuit’s “departure from the liberal

pleading standards set forth by Rule 8(a)(2) is even

more pronounced” because a pro se Complaint must

“be liberally construed” “as to do substantial justice.”

Erikson v. Pardus, 551 U.S. 89, 94 (2007). This Court’s

review is warranted in this case.

III. The Ninth Circuit’s failure to review and credit

Petitioner’s Rule 56(c) evidence contravenes this

Court’s well-settled precedents.

To prevail as a matter of law, the StateDefendants movant “always bears” the initial burden

of showing there is no genuine dispute of material

fact, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986),

to be “entitled to judgment as a matter of law,” Rule

56(a). And “summary judgment will not he if the

dispute about a material fact is "genuine," that is, if

the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248-249 (1986).

To defeat Defendants’ Rule 56 motion, Petitioner

“need only present evidence from which a jury might

return a verdict in his favor.” Id. Petitioner “must set

forth specific facts showing that there is a genuine

issue for trial” but “need not show the issue will be

resolved conclusively” in his favor. Id. Petitioner must

only submit “sufficient evidence” to create a material

factual dispute, thereby requiring a jury trial to

resolve the parties' differing versions. Id. Most

importantly, courts must believe Petitioner’s evidence

with all justifiable inferences drawn in his favor. Id.

at 255. State-Defendants are not “entitled to

judgment as a matter of law” when Petitioner makes

“a sufficient showing on an essential element of a

claim” on which Petitioner has the burden of proof.

Celotex, 477 U.S. at 323.

For summary judgment, “the judge's function is

not himself to weigh the evidence and determine the

truth of the matter but to determine whether there is

a genuine issue for trial.” Anderson, 477 U.S. at 249.

Courts are required to view the facts and draw

reasonable inferences “in the light most favorable to

[Petitioner,] the party opposing the motion.” Adickes

v. Kress Co., 398 U.S. 144, 158-159 (1970). His

“version of any disputed issue of fact thus is presumed

correct.” Eastman Kodak Co. v. Image Technical

Services, Inc., 504 U.S. 451, 456 (1992).

Opposing State-Defendants’ Rule 56 motion,

Petitioner did not “rest upon mere allegations or

denials of his pleading” but indeed “set forth specific

facts showing that there is a genuine issue for trial,”

Anderson, 477 U.S. at 256, for his §§1981, 1983, and

1985(3) claims by submitting and citing to Petitioner’s

61-page declarations with over 100 attached exhibits

and State-Defendants’ answers to Requests for

Admission (RFA), depositions, and letter exchanges

with Private-Defendants. Petitioner’s Rule 56(c)

materials support his assertion that a fact cannot be

genuinely disputed that State-Defendants regulated

and retaliated against Petitioner’s First-Amendment

activities, violated Petitioner’s Fourth-Amendment

right by conducting a warrantless administrative

search with the full agreement and cooperation from

Private-Defendants, and violated the Fourteenth

Amendment for their racially selective enforcement

against Petitioner’s First-Amendment activities.

Under Rule 56, “the court must review the record

taken as a whole.” Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 150 (2000). Like any FirstAmendment case, the Ninth Circuit is also “obligated”

to “make an independent examination of the whole

record” to ensure that “the judgment does not

constitute a forbidden intrusion on the field of free

expression.” Snyder v. Phelps, 562 U.S. 443, 453

(2011). Instead, the Ninth Circuit relied on

TwomblylIqbal plausibility pleading standard to

conclude, “Dang did not adequately allege the

requisite meeting of the minds to establish a

conspiracy for his §1983 claim, let alone adduce

evidence raising a genuine dispute of material fact

that such an agreement was reached” (App. 5). Also,

without believing and reviewing Petitioner’s record of

documentary evidence “as a whole,” the Ninth Circuit

(App. 4) cannot conclude that State-Defendants are

“entitled to judgment as a matter of law” when

Petitioner makes “a sufficient showing on an essential

element” of his §1981 claim: State-Defendants’

racially selective enforcement impaired Petitioner’s

contracts. In so doing, the Ninth Circuit starkly

departed from Rule 56 and this Court’s well-settled

procedures for summary judgment. This Court in

Crawford-El v. Britton, instructed that appellate

courts should not establish heightened pleading or

proof requirements regarding improper motive in

constitutional tort lawsuits against individual

defendants and that “questions regarding pleading,

discovery, and summary judgment are most

frequently and most effectively resolved either by the

rulemaking process or the legislative process,” 523

U.S. 574, 594-595 (1998).

Responding to Petitioner’s cross motion for partial

summary judgment, State-Defendants disputed that

they (1) regulated and retaliated against Petitioner’s

First-Amendment activities, (2) violated the Fourth

Amendment for their warrantless administrative

search, and (3) selectively enforced Washington’s

Uniform Disciplinary Act against Petitioner’s FirstAmendment activities in violation of the Fourteenth

Amendment and §1981 (racially disparate treatment

claim). Clearly, State-Defendants disputed material

facts regarding their constitutional and §1981

violations and the existence of a conspiracy between

Private- and State-Defendants to violate said rights.

They offered no evidence negating essential elements

of Petitioner’s claims of their conspiracy with PrivateDefendants to deprive Petitioner’s civil rights and

racially disparate treatment to impair Petitioner’s

§1981 right. By any summary-judgment standards

established by this Court’s precedents, StateDefendants are not entitled to summary judgment as

a matter of law because they failed to prove “there is

no genuine dispute as to any material fact.” Rule

56(a). Thus, a jury must “resolve the parties' differing

versions of the truth at trial.” Anderson, 477 U.S. at

248-249.

It is “axiomatic” that “a civil conspiracy” is a

“concerted action or a sort of civil partnership in the

commission of the injury whereby one may act for his

partner and both be bound,” Hoffman v. Halden, 268

F.2d 280, 292 (CA9 1959); it subjects “co-conspirators

to liability when one of their members committed a

. 29

tortious act,” Beck v. Prupis, 529 U.S. 494, 503 (2000).

Proper review and consideration of Petitioner’s Rule

56 (c) submissions show that there is a genuine

dispute as to the existence of such a “concerted action

or a sort of civil partnership” in a civil conspiracy

between Private- and State-Defendants to violate

Petitioner’s constitutional and §1981 rights.

Adickes v. Kress Co., 398 U.S. 144 (1970) is

instructive for Petitioner’s conspiracy claim. There,

this Court reversed summary judgment for the

defendant since it “did not carry its burden because of

its failure to foreclose the possibility that there was a

policeman in the Kress store while petitioner was

awaiting service, and that this policeman reached an

understanding with some Kress employee that

petitioner not be served” “although she had no

knowledge of an agreement between Kress and the

police.” Id. at 157. A claim of conspiracy, being

dependent on questions of intent, may not always be

amenable to disposition on summary judgment. Id. at

176 (Black, J., concurring). Whether a conspiracy

exists “is essentially a factual issue that the jury, not

the trial judge, should decide.” Id. Like Defendant

Kress, State-Defendants “failed to carry its initial

burden showing the absence of any genuine issue of

fact” that State- and Private-Defendants conspired to

violate Petitioner’s federal rights. Id. at 153. “[W]here

the evidentiary matter in support of the motion does

not establish the absence of a genuine issue, summary

judgment must be denied,” id. at 160, especially after

Petitioner adduced Rule 56(c)(1) “materials”

“asserting that a fact cannot be or is genuinely

disputed” that State- and Private-Defendants

conspired to violate Plaintiffs civil and §1981 rights.

Such uncontradicted evidence “must be viewed in

the light most favorable to the party opposing the

motion,” id. at 158-159, without credibility

determination or “weighing of the evidence,”

Anderson, 477 U.S. at 255. State-Defendants’

submissions failed to show “there is an absence of

evidence to support [Petitioner's] case,” Celotex Corp,

v. Catrett, 477 U.S. 317, 325 (1986). Furthermore,

State-Defendants failed to show conclusively that the

following facts alleged by Petitioner was ‘“not

susceptible’ of an interpretation that might give rise

to an inference of conspiracy,” Adickes, 398 U.S. at 160

n.22, between State- and Private-Defendants to

violate Plaintiffs First-, Fourth-, and FourteenthAmendment and §1981 rights:

• Defendant Clark’s letter (App. 104-105) was not a

complaint of any unprofessional conduct but really

a retaliatory effort against Petitioner’s “refusal to

consult” and speak to physicians at outlying FHS

hospitals, a First Amendment activity;

• Drs. Deem, Moreano, and Petitioner collectively

chose to exercise their First Amendment right by

refusing to associate with or take consults for other

Franciscan hospitals in our pursuit of economic and

professional goals (App. 151-159);

• Private-Defendants (App. 104-105) singled out

Petitioner’s “refusal to consult” and speak and self

reported it as “a potential EMTALA violation” to

the Center for Medicare Services (CMS);

• After “CMS investigated and found that SJMC, not

Plaintiff, potentially violated the EMTLA” (App.

63), Private-Defendants retaliated by reporting

multiple purported EMTALA violations to State-

Defendants and “participating” in their disciplinary

proceeding against Petitioner (App. 48, n. 1);

•WMC’s investigator, State-Defendant Slavin,

communicated with Private-Defendant Clark and

requested a warrantless search of Plaintiffs

medical-staff files for “past staff or patient

complaints” under RCW 18.130.050 “to take

disciplinary or corrective action, if warranted”

(App. 161, 168);

• Merely hours after Defendant Slavin’s demand for

a warrantless administrative search PrivateDefendant Clark promptly agreed and obligingly

reported four additional complaints (App. 162-164);

• In 2011, Defendant Moore was cc’ed in the email

discussion about ENT community call issues of the

FHS (App. 189-190). Then in April 2014, barely two

months before “Patient C” incident, Defendant

Moore met with Dr. Iriye, Petitioner’s Medical

Center Chief, “about ENT call concerns” at SJMC

(App. 196-197) and then proposed “a screening

checklist” as a solution (App. 205-206);

• During MQAC hearing, Defendant Moore perjured

herself and denied knowing about ENT community

call issues. Instead of correcting Defendant Moore’s

false testimony, State-Defendants Defreyn and

Dixon joined forces to exclude Petitioner’s evidence

refuting and impeaching Defendant Moore’s false

testimony (App. 130-134);

• Although GHP ENT physicians collectively refused

to consult and accept patient transfers from

outlying FHS hospitals, State-Defendants took

investigative and disciplinary action against the

only Asian member of the group (App. 180-181,

RFA No. 65-66);

• State-Defendants’ racially selective enforcement

caused the termination of Petitioner’s Medicaid

contract (App. 208-210).

Petitioner sufficiently alleged (App. 96-102,1fl[5l54, 59, 62, 75-76, 82-83, 92, 97-98) such “concerted

action” of racially disparate treatment and selective

enforcement by Private- and State-Defendants

“aim[ingj at a deprivation of the equal enjoyment of

rights secured by the law to all” to state a §1985(3)

conspiracy claim. Griffin v. Breckenridge, 403 U.S. 88,

102 (1971); see Adickes, 398 U.S. at 152. Plaintiff then

adduced Rule 56(c) evidence asserting such a

“concerted action” by State- and Private-Defendants

for a unity of purpose and unlawful objective to

selectively enforce RCW 18.130, investigate, and

punish

Plaintiffs

First-Amendment

activity:

Plaintiffs “refusal to consult” (App. 104-105) and

refusal “to speak to the Emergency Department (ED)

physician” (App. 162) which are prominently stated in

Private-Defendants’ self-serving reports and StateDefendants’ Final Order (App. 139-144, 1^1.12-1.13,

1.15, 2.4-2.6). “[T]he jury could have inferred” from

such agreement and “participation” that Private- and

State-Defendants “reached a unity of purpose or a

common design” to retaliate against Petitioner’s FirstAmendment activity. Gilbrook v. City of Westminster,

177 F.3d 839, 857 (CA9 1999).

“42 U.S.C. §1981 prohibits racial discrimination in

the making and enforcement of private contracts.”

Runyon v. McCrary, 427 U.S. 160, 168 (1976). To

oppose State-Defendants’ §1981 summary-judgment

motion, Petitioner submitted evidence asserting that

State-Defendants’ racially selective enforcement,

violative of the First and Fourteenth Amendments, is

the but-for cause for “impairment” of Petitioner’s

existing HCA contracts. In other words, Petitioner

asserted a §1981 disparate treatment claim against

State-Defendants. Young v. United Parcel Serv., Inc.,

575 U.S. 206 (2015) is instructive for such a disparate

treatment claim. To show disparate treatment

through indirect evidence under the McDonnell

Douglas framework, Petitioner may establish a prima

facie case of discrimination by “showing actions taken

by [State-Defendants] from which one can infer, if

such actions remain unexplained, that it is more likely

than not that such actions were based on a

discriminatory criterion illegal under” 42 U.S.C. 1981.

Id. at 228. Petitioner’s burden of making this showing

is neither “onerous” nor “as burdensome as succeeding

on ‘an ultimate finding of fact as to’ a discriminatory

employment action.” Id. “Neither does it require the

plaintiff to show that those whom [State-Defendants]

favored and those whom [State-Defendants]

disfavored were similar in all but the protected ways.”

Id. Ultimately, this Court vacated summary judgment

against Plaintiff Young because:

Viewing the record in the light most favorable to

Young, there is a genuine dispute as to whether

UPS provided more favorable treatment to at least

some employees whose situation cannot

reasonably be distinguished from Young's. In

other words, Young created a genuine dispute of

material fact as to the fourth prong of the

McDonnell Douglas analysis.

Id. at 231. These Youngs rationale and principles

apply to this case.

While GHP otolaryngologists collectively refused

to consult (App. 151-159), State-Defendants (App.

127-150) singled Petitioner out for racially disparate

treatment and selective enforcement. The termination

letter (App. 208-210) from Washington’s Health Care

Authority (HCA) directly cited State-Defendants’

“statement of charges” of “negligence and

incompetence”

and. “[d]ishonesty

other

unprofessional conduct” as causes for Petitioner’s

HCA-contract termination. Meanwhile, StateDefendants’ Rule 56 motion fails to show the absence

of racially selective enforcement directly causing

“impairment” of my contracts post-formation in

violation of §1981 as amended in 1991. In other words,

there is a genuine dispute as to whether StateDefendants provided more favorable treatment to

other GHP otolaryngologists whose situation cannot

reasonably be distinguished from Petitioner’s.

Therefore, State-Defendants’ summary judgment

“must be vacated.” Young, 575 U.S. at 231.

“By failing to credit evidence that contradicted

some of its key factual conclusions, the court

improperly ‘weighted] the evidence’ and resolved

disputed issues in favor of the moving party,” Tolan v.

Cotton, 572 U.S. 650, 657 (2014) (citing Anderson, 477

U.S., at 249)), and “neglected to adhere to the

fundamental principle that at the summary judgment

stage, reasonable inferences should be drawn in favor

of the nonmoving party,” Id. at 660. This Court should

grant certiorari “because the opinion below reflects a

clear misapprehension of summary judgment

standards in light of our precedents.” Id. at 657.

IV.

The decision below directly contravenes this

Court’s Haring v. Prosise unanimous decision.

The Civil Rights Act of 1871 guarantees “a

federal forum for claims of unconstitutional treatment

at the hands of state officials,” Knick v. Township of

Scott, 588 U. S. 180, 185 (2019). “The very purpose of

§ 1983 was to interpose the federal courts between the

States and the people, as guardians of the people's

federal rights — to protect the people from

unconstitutional action under color of state law.”

Mitchum v. Foster, 407 U.S. 225, 242 (1972). Section

1983 legislative history shows that “one strong motive

behind its enactment was grave congressional concern

that the state courts had been deficient in protecting

federal rights.” Allen v. McCurry, 449 U.S. 90, 98-99

(1980). Thus, “Congress assigned to the federal courts

a paramount role in protecting constitutional rights.”

Patsy v. Florida Board of Regents, 457 U.S. 496, 503

(1982). Hence, this Court unanimously rejected “a

special rule of preclusion” that Plaintiff “should be

barred from litigating an issue that was never raised,

argued, or decided” in previous state-court

proceedings because there is “no justification for

creating such an anomalous rule.” Haring v. Prosise,

462 U.S. 306, 317-318 (1983). Such preclusion rule

“would threaten important interests in preserving

federal courts as an available forum for the

vindication of constitutional rights.” Id., at 322. The

unanimous Court also refused to “require an

otherwise unwilling party to try [First-, Fourth-, and

Fourteenth-Amendment] questions to the hilt and

prevail in state court in order to preserve the mere

possibility of later bringing a §1983 claim in federal

court”. Id. (cleaned up). The Court finally emphasized

that there is NO compelling justification for “a rule

confining the litigation of constitutional claims to a

state forum” because “such a rule would be wholly

contrary to one of the central concerns which

motivated the enactment of §1983, namely, the "grave

congressional concern that the state courts had been

deficient in protecting federal rights".” Id. at 323..

In previous state court’s judicial review (App. 112126), the issue of whether WMC’s Final Order is

constitutionally invalid for violating Petitioner’s

rights to free speech and association, privacy

expectation against warrantless administrative

search, and equal protection under the federal

Constitution was never raised, briefed, argued, or

finally determined. The Washington Supreme Court

has repeatedly ruled that collateral estoppel precludes

only “those issues that have actually been litigated

and necessarily and finally determined in the earlier

proceeding.” Dot Foods, Inc. v. State, 185 Wash.2d

239, 254 (2016); Christensen v. Grant County Hosp,

152 Wash.2d 299, 307 (2004); Shoemaker v.

Bremerton, 109 Wash.2d 504, 508 (1987); Peterson v.

Department of Ecology, 92 Wash.2d 306, 312 (1979);

Haslund v. Seattle, 86 Wash.2d 607, 622-623 (1976);

King v. Seattle, 84 Wash.2d 239, 243 (1974). Thus,

unless Petitioner’s constitutional challenges were

“actually litigated and determined in the former

judicial proceeding,” Washington law will not treat

that issue as final or precluded. Prosise, 462 U.S. at

315. If the Washington Supreme Court would not give

preclusive effect to the prior judgment, “courts of the

United States can accord it no greater efficacy” under

28 U.S.C. §1738. Id. at 313 n.6 (quoting Union

Planters' Bank v. Memphis, 189 U.S. 71, 75 (1903)).

Accordingly, the Ninth Circuit must accept

Washington’s preclusion rule and cannot rule that

“Dang cannot now relitigate the issue of the

Disciplinary Order's validity” (App. 4) because the

issue of Petitioner’s First-, Fourth-, and FourteenthAmendment constitutional challenges was never

litigated or finally determined in state courts in the

first place. According to the unanimous Haring v.

Prosise Court’s command, this issue of WMC’s Final

Order’s unconstitutionality and invalidity under the

First, Fourth, and Fourteenth Amendments cannot be

precluded from being freshly litigated by Petitioner in

federal courts. Undeniably, state-court judicial review

of WMC’s Final Order (App. 112-126) only determined

state-law issues under RCW 34.05 (Washington

Administrative Procedure Act) and RCW 18.130

(Uniform Disciplinary Act), which are inapplicable for

Petitioner’s §1983 claims. Nance v. Ward, 142 S.Ct.

2214, 2222 (2022) (“Section 1983 broadly authorizes

suit against state officials for the "deprivation of any

rights" secured by the Constitution” not by state

laws). Notably, Washington courts “did not actually

decide against [Petitioner] any issue on which he must

prevail in order to establish his §1983 claim”: the issue

of State-Defendants’ First-, Fourth-, and FourteenthAmendment violations. Haring v. Prosise, 462 U.S.

306, 316 (1983).

Finally, because Petitioner chose not to air his

constitutional challenges to WMC’s Final Order in

state-court judicial reviews, “preclusive effect to a

state-court judgment may be inappropriate” when the

§1983 claimant has not “freely and without

reservation” submitted his constitutional challenges

to be decided by Washington state courts. Id. at 313,

n.7 (citing England v. Medical Examiners, 375 U.S.

411, 419 (1964)).

The decision below squarely contravenes the

unanimous HaringN. Prosise decision and meets this

Court’s Rule 10 criteria for review.

CONCLUSION

The petition for a writ of certiorari should be

granted.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.