Petition for Writ of Certiorari — Edward Allyn Hudacko, Petitioner v. Regents of the University of California, et al.

Supreme Court briefAug 7, 2026

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No. ______

In the Supreme Court of the United States

EDWARD ALLYN HUDACKO, Petitioner,

REGENTS OF THE UNIVERSITY OF CALIFORNIA; JANET YI

MAN LEE; DIANE EHRENSAFT; STEPHEN ROSENTHAL;

ASAF ORR; NATHANIEL BIGGER; DANIEL HARKINS; AND

CHRISTINE UNDERHILL, FKA CHRISTINE HUDACKO

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

GENE C. SCHAERR

Counsel of Record

HANNAH C. SMITH

JAMES C. PHILLIPS

SCHAERR | JAFFE LLP

1717 K Street NW, Suite 900

Washington, DC 20006

(202) 787-1060

gschaerr@schaerr-jaffe.com

Counsel for Petitioner

QUESTIONS PRESENTED

With his divorce, a state family court stripped Ted

Hudacko of all parental rights but one: “any gender

identity related surgery” on his minor son required

Hudacko’s approval. When such surgery occurred at a

state hospital without his knowledge or consent—

presenting another instance of what four Justices call

“a question of great and growing national

importance”—Hudacko sued for violating his parental

rights. He pleaded that the procedure was surgery and

defendants knew it. Yet the Ninth Circuit affirmed

dismissal of his claims, determining that qualified

immunity applied because Hudacko did not present

controlling judicial precedent under similar facts, thus

failing to show a violation of clearly established law.

The questions presented are:

1. Whether judicial decisions are the only valid

source of clearly established law (the approach of the

5th, 7th, 9th, 10th, and D.C. Circuits); or whether

other sources of law or non-legal materials, like

professional knowledge, may also be examined (as in

the 1st, 2d, 3d, 4th, 6th, 8th, and 11th Circuits)?

2. Whether the same clearly established-law test

applies to all government officials, or whether as a

threshold question courts should determine “whether

immunity was historically accorded the relevant

official in an analogous situation at common law,” as

this Court used to ask in qualified immunity cases and

still does for absolute immunity. Baxter v. Bracey, 590

U.S. 1011, 1014 (2020) (Thomas, J., dissenting from

denial of certiorari).

PARTIES TO THE PROCEEDING

The case caption contains the names of all parties

to the proceeding.

Petitioner Edward Allyn Hudacko was the

Appellant in the Ninth Circuit and the Plaintiff in the

district court.

Respondents Regents of the University of

California; Janet Yi Man Lee; Diane Ehrensaft;

Stephen Rosenthal; Asaf Orr; Nathaniel Bigger;

Daniel Harkins; and Christine Underhill, fka

Christine Hudacko, were the Appellees in the Ninth

Circuit and the Defendants in the district court.

iii

CORPORATE DISCLOSURE STATEMENT

Petitioner Edward Hudacko is an individual

person, and no corporate disclosure is required.

STATEMENT OF RELATED PROCEEDINGS

The following proceedings are directly related to

this case:

•

Hudacko v. Regents of the University of

California, No. 24-7360 (9th Cir.) (opinion

affirming dismissal entered October 21, 2025

(App.A); petition for rehearing and rehearing

en banc denied March 11, 2026 (App.E));

•

Hudacko v. Lee, No. 3:23-cv-05316-SI (N.D.

Cal.) (order dismissing claims entered

November 25, 2024 (App.B); judgment entered

against Hudacko November 26, 2024 (App.C));

and

•

Hudacko v. Lee, No. 3:23-cv-05316-SI (N.D.

Cal.) (order granting motions to dismiss in

part and denying in part entered August 20,

2024 (App.D)).

TABLE OF CONTENTS

QUESTIONS PRESENTED ......................................... i

CORPORATE DISCLOSURE STATEMENT ........... iii

STATEMENT OF RELATED PROCEEDINGS ........ iv

TABLE OF AUTHORITIES ....................................... xi

INTRODUCTION ........................................................ 1

OPINIONS BELOW .................................................... 3

JURISDICTION........................................................... 4

STATEMENT OF THE CASE..................................... 4

Legal Background ........................................... 4

The Fourteenth Amendment

protects a parent’s right to direct

his child’s medical care............................ 4

Qualified immunity’s clearly

established-law test. ................................ 5

Factual Background........................................ 6

Procedural History ........................................ 10

REASONS FOR GRANTING THE PETITION ........ 13

This Petition Presents an Issue that

Multiple Justices Have Recognized as a

“Question of Great and Growing

National Importance.” .................................. 13

II.

In Affirming Qualified Immunity, the

Ninth Circuit Acted In Tension with

This Court’s Precedent and Cemented

a Deep Circuit Split on What Materials

Are Relevant to Determining Clearly

Established Law............................................ 17

This Court’s precedent requires

courts to examine the “information

possessed” by the state actor and

to perform the analysis from the

perspective of an “official in the

defendant’s shoes” in determining

whether clearly established law

was violated. .......................................... 17

Five Circuits look only to judicial

decisions as valid interpretive

sources of clearly established law. ........ 19

Seven other circuits permit

consideration of non-case law

sources of law and non-legal

materials. ............................................... 21

Had the Ninth Circuit followed the

majority approach, it could not

have granted Respondents’

motions to dismiss. ................................ 24

III. The Court Should Use This

Opportunity to Return to its Prior

Practice of Requiring a Threshold

Historical Inquiry as Part of the

Qualified Immunity Determination. ............ 26

vii

Multiple Justices have criticized

modern qualified immunity

doctrine for straying far from its

historical roots. ...................................... 26

State actors who did not enjoy

common-law immunity in 1871,

like Respondents, should not be

treated the same as state actors

who did. .................................................. 31

Any state actor who cannot

show the historical pedigree of

immunity should be subject to

the Hope v. Pelzer standard. .......... 31

Medical personnel did not

historically receive immunity. ....... 34

IV. This is a Clean Vehicle. ................................ 35

CONCLUSION .......................................................... 37

APPENDICES

APPENDIX A:

Memorandum Opinion,

Hudacko v. Regents of the University

of California, No. 24-7360 (9th Cir.),

Oct. 21, 2025, Doc. 81.1 ......................................... 1a

APPENDIX B:

Order Re: Motions to Dismiss,

Hudacko v. Lee, No. 3:23-cv-05316-SI

(N.D. Cal.), Nov. 25, 2024, Doc. 117 .................... 10a

viii

APPENDIX C:

Judgment, Hudacko v. Lee,

No. 3:23-cv-05316-SI (N.D. Cal.),

Nov. 26, 2024, Doc. 118 ....................................... 47a

APPENDIX D:

Order Granting in Part and Denying in

Part Defendants’ Motions to Dismiss,

Hudacko v. Lee, No. 3:23-cv-05316-SI

(N.D. Cal.), Aug. 20, 2024, Doc. 86...................... 48a

APPENDIX E:

Order, Hudacko v. Regents of the

University of California, No. 24-7360

(9th Cir.), Mar. 11, 2026, Doc. 109.1 ................... 93a

APPENDIX F:

Second Amended Complaint with Exhibits, 1

Hudacko v. Lee, No. 3:23-cv-05316-SI

(N.D. Cal.), Aug. 30, 2024, Doc. 90...................... 95a

Ex. A: Findings and Order After Hearing,

Hudacko v. Hudacko, No. D19-05641

(Cal. Super. Ct., Aug. 26, 2020)

(Hiramoto, J.) ................................................. 144a

Ex. B: Emails between Ted Hudacko and

Christine Hudacko, Sep. 29, 2020 ................. 157a

Ex. C: Email from Christine Hudacko to

Ted Hudacko, Oct. 18, 2021, cc’s Nathaniel

Bigger, Daniel Harkins .................................. 159a

1 The names of minor children contained in the exhibits to the

Second Amended Complaint have been replaced with “[S.H.]” and

“[W.H.].” Additionally, sensitive information or information

concerning other individuals has been redacted or excerpted.

Ex. D: United Healthcare Explanation

of Benefits for “Surgery” services on

Aug. 4, 2021 .................................................... 160a

Ex. E: UCSF Pediatric Endocrine Parent

or Guardian Consent Forms,

Feb. 17, 2021 .................................................. 161a

Ex. F: [omitted] .............................................. 169a

Ex. G: Patient Progress Notes, UCSF,

June 8, 2021 ................................................... 169a

Ex. H: Abigail Shrier, Child Custody’s

Gender Gauntlet, City J. (Feb. 7, 2022)......... 172a

Ex. I: Patient Progress Notes, UCSF,

Aug. 4, 2021 .................................................... 192a

Ex. J: Endo Pharmaceuticals Inc.’s

published Prescribing Information for

SUPPRELIN® (rev’d Apr. 2022) .................... 196a

Ex. K: Invoice # INV00965 from

Reproductive Technologies, Inc. for sperm

bank services, Mar. 1, 2021 (client [S.H.]);

Invoice SINV22-1483 from The Sperm

Bank of California, Feb. 18, 2022 (client

[S.H.]).............................................................. 236a

Ex. L: United Healthcare Statement for

June 17, 2021-Sep. 15, 2021 [excerpted] ....... 238a

Ex. M: Emails between Daniel S. Harkins,

Nathaniel Bigger, Ted Hudacko, cc’s

Christine Hudacko, bcc’s Paula, Susan,

11/2021 Re: Fertility Preservation ................ 240a

Ex. N: [omitted] .............................................. 244a

Ex. O: Letter from Edward A. Hudacko to

Drs. Stephen M. Rosenthal and Diane

Ehrensaft, UCSF Benioff Children’s

Hospital, Child and Adolescent

Transgender Center Clinic, 10/21/20

(cc’s to Christine Hudacko, Nathanial

Bigger, Daniel S. Harkins, Judge

Hiramoto, and politicians). ............................. 245a

Ex. P: [omitted from original document] ........ 254a

Ex. Q: [omitted] ............................................... 254a

APPENDIX G:

42 U.S.C. §1983.................................................. 255a

TABLE OF AUTHORITIES

Cases

Page(s)

Adams v. Poag,

61 F.3d 1537 (11th Cir. 1995) ................................ 23

American Trucking Ass’ns, Inc. v. Smith,

496 U.S. 167 (1990) ................................................ 21

Anderson v. Creighton,

483 U.S. 635 (1987) .................... 6, 18, 21, 22, 27, 29

Anza v. Ideal Steel Supply Corp.,

547 U.S. 451 (2006) ................................................ 11

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) ................................ 6, 18, 33, 34

Barker v. Goodrich,

649 F.3d 428 (6th Cir. 2011) .................................. 22

Baxter v. Bracey,

590 U.S. 1011 (2020) ..................................... i, 29, 30

Bernier v. Allen,

38 F.4th 1145 (D.C. Cir. 2022) .............................. 20

Burns v. Reed,

500 U.S. 478 (1991) .......................................... 27, 30

Carr v. Saul,

593 U.S. 83 (2021) .................................................. 36

Carroll v. Carman,

574 U.S. 13 (2014) .................................. 5, 12, 18, 33

Cintron v. Bibeault,

148 F.4th 37 (1st Cir. 2025) ................................... 21

City of Escondido v. Emmons,

586 U.S. 38 (2019) .................................................. 33

xii

City of Tahlequah v. Bond,

595 U.S. 9 (2021) .................................................... 33

Clapper v. Amnesty Int’l USA,

568 U.S. 398 (2013) ................................................ 14

Colorado River Water Conservation Dist.

v. United States, 424 U.S. 800 (1976).................... 14

Crawford-El v. Britton,

523 U.S. 574 (1998) .......................................... 27, 28

Danforth v. Minnesota,

552 U.S. 264 (2008) ................................................ 20

District of Columbia v. Wesby,

583 U.S. 48 (2018) .................................................. 34

Frasier v. Evans,

992 F.3d 1003 (10th Cir. 2021) .............................. 19

Groh v. Ramirez,

540 U.S. 551 (2004) ................................................ 18

Harlow v. Fitzgerald,

457 U.S. 800 (1982) .................................... 12, 27, 29

Hoggard v. Rhodes,

141 S.Ct. 2421 (2021) ....................................... 30, 32

Hope v. Pelzer,

536 U.S. 730 (2002) ............................... 18, 26, 31-34

Iko v. Shreve,

535 F.3d 225 (4th Cir. 2008) .................................. 22

Imbler v. Pachtman,

424 U.S. 409 (1976) ................................................ 30

Irish v. Fowler,

979 F.3d 65 (1st Cir. 2020) .................................... 21

xiii

Kisela v. Hughes,

584 U.S. 100 (2018) ................................................ 33

Kruse v. Williams,

592 F. App’x 848 (11th Cir. 2014) ......................... 23

Latits v. Phillips,

878 F.3d 541 (6th Cir. 2017) .................................. 22

Lee v. Poudre Sch. Dist. R-1,

146 S.Ct. 26, 2025 WL 2906469 (2025) ........ 2, 14-16

MacIssac v. Town of Poughkeepsie,

770 F. Supp. 2d 587 (S.D.N.Y. 2011) ..................... 16

Malley v. Briggs,

475 U.S. 335 (1986) .......................................... 28, 29

McCullum v. Tepe,

693 F.3d 696 (6th Cir. 2012) ............................ 34, 35

Medina v. Planned Parenthood S. Atl.,

606 U.S. 357 (2025) ................................................ 28

Meyer v. Nebraska,

262 U.S. 390 (1923) .................................................. 4

Mirabelli v. Bonta,

607 U.S. 492 (2026) .............................................. 4, 5

Mitchell v. Forsyth,

472 U.S. 511 (1985) ................................................ 16

Morgan v. Swanson,

659 F.3d 359 (5th Cir. 2011) .................................. 33

Mullenix v. Luna,

577 U.S. 7 (2015) .............................................. 33, 34

N.E.L. v. Douglas County,

740 F. App’x 920 (10th Cir. 2018) ......................... 33

xiv

Nelson v. Correctional Med. Servs.,

583 F.3d 522 (8th Cir. 2009) .................................. 22

New v. Denver,

787 F.3d 895 (8th Cir. 2015) .................................. 22

Okin v. Village of Cornwall-On-Hudson

Police Dep’t, 577 F.3d 415 (2d Cir. 2009) .............. 23

Parents Protecting Our Child., UA v.

Eau Claire Area Sch. Dist.,

145 S.Ct. 14 (2024) ........................................ 2, 13-16

Parham v. J.R.,

442 U.S. 584 (1979) .............................................. 4, 5

Pearson v. Callahan,

555 U.S. 223 (2009) ................................................ 16

Peatross v. City of Memphis,

818 F.3d 233 (6th Cir. 2016) .................................. 35

Pierce v. Society of Sisters,

268 U.S. 510 (1925) .................................................. 4

Plumhoff v. Rickard,

572 U.S. 765 (2014) ................................ 6, 16, 18, 21

Reed v. Palmer,

906 F.3d 540 (7th Cir. 2018) .................................. 20

Reichle v. Howards,

566 U.S. 658 (2012) ................................................ 33

Rivas-Villegas v. Cortesluna,

595 U.S. 1 (2021) .................................................... 33

Salazar v. Molina,

37 F.4th 278 (5th Cir. 2022) .................................. 20

Stanton v. Sims,

571 U.S. 3 (2013) .................................................... 33

Taylor v. Riojas,

592 U.S. 7 (2020) .................................................... 33

Thompson v. Clark,

596 U.S. 36 (2022) .................................................. 31

Tolan v. Cotton,

572 U.S. 650 (2014) ................................................ 33

Trabucco v. Rivera,

141 F.4th 720 (5th Cir. 2025) ................................ 35

United States v. McKenzie-Gude,

671 F.3d 452 (4th Cir. 2011) .................................. 22

United States v. Skrmetti,

605 U.S. 495 (2025) .................................................. 8

Villalobos v. Picicco,

168 F.4th 1057 (7th Cir. 2026) .............................. 34

White v. Pauly,

580 U.S. 73 (2017) .................................................. 33

Williams v. Secretary Pa. Dep’t of Corr.,

117 F.4th 503 (3d Cir. 2024) .................................. 23

Wyatt v. Cole,

504 U.S. 158 (1992) ................................................ 27

Youngbey v. March,

676 F.3d 1114 (D.C. Cir. 2012) .............................. 20

Ziglar v. Abbasi,

582 U.S. 120 (2017) .......................................... 28, 29

Zorn v. Linton,

146 S.Ct. 926 (2026) ............................... 6, 17, 33, 34

Constitutional Provisions

U.S. Const. amend. IV .............................................. 34

U.S. Const. amend. XIV.............................................. 4

xvi

Statutes

28 U.S.C. §1254........................................................... 4

42 U.S.C. §1983.................. 1, 10, 13, 25-28, 31, 34, 36

Civil Rights Act of 1871,

ch. 22, §1, 17 Stat. 13. .............................................. 1

Cal. Bus. & Prof. Code §3041 ................................... 11

Rules

Fed. R. Civ. P. 12 ................................................ 12, 25

Other Authorities

William Baude,

Is Qualified Immunity Unlawful?,

106 Cal. L. Rev. 45 (2018) ...................................... 28

Eliana Fleischer,

Stating the Obvious: Departmental Policies

As Clearly Established Law,

90 U. Chi. L. Rev. 1435 (2023)............................... 19

Tyler B. Lindley,

Anachronistic Readings of Section 1983,

75 Ala. L. Rev. 897 (2024) ...................................... 28

Merriam-Webster Online Dictionary ....................... 17

Petition for Writ of Certiorari,

Lee v. Poudre Sch. Dist. R-1,

146 S.Ct. 26 (2025) (No. 25-89).............................. 15

John F. Preis,

Qualified Immunity & Subjective Knowledge,

60 Wake Forest L. Rev. 627 (2025) ....................... 19

Antonin Scalia & Bryan Garner,

Reading Law (2012) ............................................... 28

INTRODUCTION

This is a case about the sterilization of a child.

That tragedy was made possible by state actors

who trampled the oldest of the fundamental liberty

interests recognized by this Court—the constitutional

right to direct the upbringing of one’s child, including

directing that child’s medical treatment. State medical

officials, aided by other state actors, performed

gender-identity related surgery on a minor without

the father’s consent, Petitioner Ted Hudacko, despite

a court order requiring the father’s permission.

But this case is about more than Hudacko’s

tragedy. The petition presents questions of exceptional

importance to parents throughout the country. The

state defendants facilitating or performing the

sterilization via gender identity-related surgery on a

child have escaped any legal consequence through

qualified immunity. The Ninth Circuit decision so

holding ignored Hudacko’s clearly pleaded allegations

that the defendants knew they were performing

surgery and knew a court order prohibited it without

Hudacko’s consent or court permission, neither of

which they possessed. And that Ninth Circuit decision

conflicts with seven other Circuits, taking the

minority position on what constitutes valid sources for

determining clearly established law.

Moreover, the decision below shows just how far

astray qualified immunity doctrine has wandered

from section 1983’s birth in the 1871 Civil Rights Act.

That statute, silent as to immunity, see App.255a, is

now interpreted to provide the same level of qualified

immunity to any state actor, regardless of whether

they enjoyed common law immunity in 1871. But as

Justice Thomas has repeatedly urged, this Court

should not apply a one-size-fits-all approach to the

judicially invented doctrine of section 1983 qualified

immunity when the Court can instead look to history

to determine that immunity’s scope and application.

The importance of these issues warrants granting

the petition. Multiple Justices have now recognized

that state actors “purposefully interfer[ing] with

parents’ access to critical information about their

children’s gender-identity choices and [state actors’]

involvement in and influence on those choices” are

both “troubling *** and tragic.” Lee v. Poudre Sch.

Dist. R-1, 146 S.Ct. 26, 2025 WL 2906469, *1 (2025)

(statement by Alito, J., joined by Thomas & Gorsuch,

JJ., respecting denial of certiorari). These Justices are

rightly “concerned that some federal courts are

‘tempted’ to avoid confronting a ‘particularly

contentious constitutional question’: whether a [state

actor] violates parents’ fundamental rights ‘when,

without parental knowledge or consent, it encourages

a student to transition to a new gender or assists in

that process.’” Ibid. (cleaned up) (quoting Parents

Protecting Our Child., UA v. Eau Claire Area Sch.

Dist., 145 S.Ct. 14, 14 (2024) (Alito, J., dissenting from

denial of certiorari)).

The qualified immunity holding in this case

exemplifies that very concern, which these Justices

deem to be of “great and growing national

importance.” Ibid. (quoting Parents Protecting, 145

S.Ct. at 14). Accordingly, the petition should be

granted.

OPINIONS BELOW

The memorandum opinion of the United States

Court of Appeals for the Ninth Circuit is not published

but is available at 2025 WL 2965766 and reproduced

in Appendix A (App.1a-9a).

The district court’s order granting defendants’

motions to dismiss Hudacko’s second amended

complaint is not published but is available at 2024 WL

4894292 and reproduced in Appendix B (App.10a-46a).

The district court’s judgment entering judgment

in favor of the defendants is not published. It is

reproduced in Appendix C (App.47a).

The district court’s order granting in part and

denying in part defendants’ motions to dismiss

Hudacko’s original complaint is not published but is

available at 2024 WL 3908113 and reproduced in

Appendix D (App.48a-92a).

The Ninth Circuit’s order denying Hudacko’s

petition for rehearing and rehearing en banc is

published at 168 F.4th 1245 and reproduced in

Appendix E (App.93a-94a).

JURISDICTION

The Ninth Circuit’s opinion issued on October 21,

2025. App.1a-9a. Hudacko’s petition for rehearing or

rehearing en banc was denied on March 11, 2026.

App.93a-94a. Justice Kagan granted Hudacko’s timely

request for a 59-day extension to file this petition—to

August 7, 2026. No. 25A1345. This Court has

jurisdiction under 28 U.S.C. §1254(1).

STATEMENT OF THE CASE

Legal Background

This petition directly implicates qualified

immunity doctrine but, given the nature of that

doctrine, also indirectly implicates Fourteenth

Amendment parental rights.

The Fourteenth Amendment protects a

parent’s right to direct his child’s

medical care.

For nearly a half century, this Court has

recognized the parental right to direct their children’s

mental health care, noting that “[m]ost children, even

in adolescence, simply are not able to make sound

judgments concerning many decisions, including their

need for medical care or treatment.” Parham v. J.R.,

442 U.S. 584, 603 (1979). Thus, “[p]arents can and

must make those judgments.” Ibid. And for over a

century this Court has recognized that “[u]nder longestablished precedent, parents—not the State—have

primary authority with respect to ‘the upbringing ***

of children.’” Mirabelli v. Bonta, 607 U.S. 492, 497

(2026) (per curiam) (quoting Pierce v. Society of

Sisters, 268 U.S. 510, 534-535 (1925); citing Meyer v.

Nebraska, 262 U.S. 390, 399-400 (1923)). Further,

“[t]he right protected by these precedents includes the

right not to be shut out of participation in decisions

regarding their children’s mental health.” Mirabelli,

607 U.S. at 497 (citing Parham, 442 U.S. at 602). This

Court has also correctly recognized that “[g]ender

dysphoria is a condition that has an important bearing

on a child’s mental health.” Ibid. See also id. at 499

(Barrett, J., concurring, joined by Roberts, C.J., and

Kavanaugh, J.) (“[T]he doctrine of substantive due

process has long embraced a parent’s right to raise her

child, which includes the right to participate in

significant decisions about her child’s mental

health.”).

Thus, when “California’s policies conceal [a

child’s gender dysphoria] from parents and facilitate a

degree of gender transitioning,” this Court found in

the context of a preliminary injunction that “[t]hese

policies likely violate parents’ rights to direct the

upbringing *** of their children.” Id. at 497. See also

id. at 499 (Barrett, J., concurring) (“California’s

nondisclosure policy thus quite obviously excludes

parents from highly important decisions about their

child’s mental health, and is unlikely to satisfy

heightened scrutiny.” (citation omitted)).

Qualified immunity’s clearly

established-law test.

For a section 1983 claim to withstand a defense

of qualified immunity, this Court has held that a

government “official [must have] violated a statutory

or constitutional right that was clearly established at

the time of the challenged conduct.” Carroll v.

Carman, 574 U.S. 13, 16 (2014) (per curiam). And, “[t]o

find that a right is clearly established, courts generally

need to identify a case where an officer acting under

similar circumstances was held to have violated the

Constitution.” Zorn v. Linton, 146 S.Ct. 926, 930

(2026) (per curiam) (emphasis added) (cleaned up).

Moreover,

“the

determination

whether

[government officers’ actions were] objectively legally

reasonable *** will often require examination of the

information possessed by [those] officials.” Anderson v.

Creighton, 483 U.S. 635, 641 (1987). So, in

determining whether a constitutional right is clearly

established for qualified immunity, courts must

consider whether “any reasonable official in the

defendant’s shoes would have understood that he was

violating it.” Plumhoff v. Rickard, 572 U.S. 765, 778779 (2014) (emphasis added) (citing Ashcroft v. alKidd, 563 U.S. 731, 741-742 (2011)).

Factual Background

Just over seven years ago, Hudacko’s then-wife

(Respondent Underhill) told him she was leaving him

and that their 15-year-old son was “transgender.”

App.179a. 2 Surprised at the first bit of news, Hudacko

was dumbfounded at the second—his son had shown

no signs that he was not completely comfortable as a

boy. App.178a. Nor was Hudacko some unobservant,

absentee parent, having coached his son’s baseball

teams and researched music conservatory programs

for him, given his piano ability. See App.174a.

As the divorce progressed to a custody

determination, little did Hudacko know that the

family law judge handling the matter had an adult

transgender son of her own, App.177a, 185a-186a, and

2 The City Journal article uses a pseudonym for Hudacko’s son.

App.191a.

that later—with one of the named Respondents here—

she would train others on how to promote transgender

rights in family courts, App.112a-114a. When the

judge asked Hudacko whether he accepted his son’s

transgenderism, as though it was beyond dispute, and

Hudacko expressed doubt as to that diagnosis and the

lack of data supporting treatment, App.172a-176a, the

judge ultimately stripped Hudacko of all custody

rights concerning his son except one. App.5a, 133a,

150a. 3

That one remaining vestige of his constitutional

right to direct his child’s upbringing was that “any

gender identity related surgery” could not be

performed on their son while still a minor without

Hudacko’s written consent or an order from the family

court. App.115a-116a, 152a (emphasis omitted).

Otherwise, Hudacko’s ex-wife could make all medical

and other decisions for their son, App.115a, 150a153a; including whether to accept Respondent UCSF’s

recommendation regarding “hormone therapy,”

App.116a, 152a. (UCSF was the only authorized

3 The California family court judge’s interrogation of Hudacko’s

beliefs related to gender identity and transgenderism bordered at

times on the bizarre and the unconstitutional. As to the latter,

the judge asked Hudacko—who “isn’t a particularly devout

Episcopalian”—“do you think that being transgender is a sin?”

App.172a-176a. As to the bizarre, she asked Hudacko if he would

affirm his son if he thought he was “the Queen of England.”

App.172a-173a. And the judge’s questioning was at times the

very definition of leading: “But you probably think that [your

child], if they are truly transgender, you would prefer that [your

child] not be transgender because in our society transgender

people are the subject of a lot of discrimination. Would you agree

with that?” App.174a.

provider of “hormone therapy” in the court order).

App.152a.

Hudacko pleaded that UCSF had requested and

received from his ex-wife the court order prohibiting

any gender identity related surgery without his

consent, as he learned in a September 29, 2020 email

from his ex-wife. App.117a-118a, 157a. Suspicious, a

few weeks later Hudacko wrote an email to the state

medical defendants, the court-appointed attorney for

his son, his ex-wife, and her attorney, requesting

access to his child’s medical records and reminding

them of the contents of the court order. App.118a,

245a-253a. That same email made clear that he did

not consent to any gender identity “treatment” for his

son. App.118a-119a, 245a-254a. The state defendants

received the letter. App.119a. Thus, state defendants

were on notice no later than late September 2020

regarding the court order and no later than October

2020 regarding Hudacko’s lack of consent.

But Respondents did not care. They include the

state actors who were doctors involved in the surgery

(Rosenthal and Lee), the state clinical psychologist

who recommended the surgery (Ehrensaft), 4 the state

institution responsible for these actors (Regents of the

University of California), the attorney of the state

institution (Orr), the court-appointed attorney for the

4 Rosenthal, Lee, and Ehrensaft are members of WPATH (World

Professional Association for Transgender Health). App.101a102a. And “[r]ecent revelations suggest that WPATH[] *** bases

its guidance on insufficient evidence and allows politics to

influence its medical conclusions.” United States v. Skrmetti, 605

U.S. 495, 543 (2025) (Thomas, J., concurring); see also id. at 545546 (citation omitted).

minor child (Harkins), Hudacko’s ex-wife (Underhill),

and her attorney (Bigger). App.101a-104a.

Without seeking permission from Hudacko or the

family court, Respondents arranged for the minor son

to have a cross-sex hormone-dispensing surgical

implant procedure (Supprelin), in conjunction with

oral estrogen hormone therapy. App.123a, 124a, 159a,

160a, 170a, 196a-235a, 238a-239a. Aware of the

permanent

consequences

the

surgery—

sterilization—Respondent Underhill caused the minor

child to deposit sperm into a sperm bank. App.120a121a, 236a-237a. The surgery was initially delayed,

with Respondents’ June 2021 medical notes observing

that the “father is not supportive of [his son’s] gender

care.” App.121a-123a, 169a-171a. Those notes

indicated that Hudacko’s ex-wife, her attorney, the

state defendant attorney, the court-appointed

attorney for the minor child, in short, “everyone is

working together to achieve resolution in [the] near

future”—everyone but Hudacko. App.121a-123a, 171a.

Finally, without Hudacko’s knowledge or consent,

the surgery was performed in August 2021, App.123a,

160a, 192a-195a, 239a, nearly a year after

Respondents knew about the court order and

Hudacko’s lack of consent, App.118a-119a, 157a159a, 245a-254a. Hudacko would definitively learn of

the surgery only after he received a quarterly

statement from his insurance provider with a bill for

over $209,000 for “surgery,” App.239a, asked his son’s

court-appointed counsel about it, App.240a-243a, and

received confirmation that the surgery had occurred in

an October 2021 email from Respondent Underhill.

App.118a-119a, 124a, 129a, 239a, 243a-244a. He

subsequently filed suit in federal court.

Procedural History

In October 2023, Hudacko, a pro se plaintiff at

that time, filed his initial complaint against

Respondents here: the two state doctors responsible

for the surgery, the state psychologist who

recommended it, the state attorney who worked to

bring the surgery about, the state entity responsible

for these actors, the court-appointed attorney for his

son, his ex-wife, and her attorney. And his first

amended complaint was filed, also pro se, one week

later. Following motions to dismiss by all defendants,

Hudacko hired counsel (not his current counsel) to

assist with his lawsuit.

In August 2024, the district court (Judge Susan

Illston) granted in part, and denied in part, the

defendants’ motions to dismiss. App.48a-92a. The

court also instructed Hudacko to file a second

amended complaint within ten days, App.92a, which

he did on August 30, 2024, App.95a-143a. Of

importance to this petition, the court denied “[t]he

motions to dismiss the section 1983 substantive due

process claim *** as to Orr, Lee, Ehrensaft, and

Rosenthal in their individual capacities.” App.92a. But

in the very next sentence, the district court gave

defendants a suggestion to raise an argument they

had previously ignored: “However, these defendants

may raise qualified immunity defenses in subsequent

proceedings.” Ibid. Respondents took the hint and

sought dismissal of Hudacko’s constitutional parental

rights claim under section 1983 on qualified immunity

grounds.

In Hudacko’s second amended complaint, he

clearly pleaded the background above, and he attached

exhibits backing up his pleading, App.144a-254a. 5 The

Second Amended Complaint noted that the family

court order did not define “surgery” or “hormone

therapy,” App.116a, but Hudacko clearly pleaded that

the implants were surgery, App.96a, 97a, 99a, 100a,

102a-104a, 107a, 116a-117a, 119a-123a—and that

Respondents knew it, App.115a, 126a-129a—relying

on California’s statutory definition of the term (Cal.

Bus. & Prof. Code §3041), a Merriam-Webster

Dictionary definition, the prescribing information of

the company that makes the implant (which states

that the “[i]nsertion of the Supprelin LA implant is a

surgical procedure”), the Respondents’ vast experience

with this type of surgery, and USCF’s own bill, which

billed the medical act to Hudacko’s insurance as

“surgery,” App.117a, 160a, 196a-235a, 202a. And that

complaint also clearly pleaded that Respondents knew

of the court order that any gender-identity related

surgery required Hudacko’s consent or a court order

and that he did not provide such consent. App.115a,

118a-119a, 121a-122a, 135a, 136a, 138a.

The district court granted defendants’ motions to

dismiss the section 1983 substantive due process

parental rights claim on qualified immunity grounds

5 Because the petition “arises from a motion to dismiss,” the facts

in the Second Amended Complaint are presented, and must be

accepted, as true. Anza v. Ideal Steel Supply Corp., 547 U.S. 451,

453 (2006).

under Federal Rule of Civil Procedure 12(b)(6).

App.34a-39a. In doing so, the court determined that

neither the parental right “in custody and control of

[one’s] children, which encompasses the right to make

medical decisions for the child,” nor “the family right

to association, which includes a right for parents and

children to be together when a child receives medical

care” were implicated in the case. App.37a. And the

court determined that, given the court order allowing

hormone therapy but requiring Hudacko’s consent for

“gender identity related surgery,” reasonable state

actors could have believed the implant was therapy

rather than surgery, thus triggering qualified

immunity. App.35a-36a, 38a-39a.

On appeal, the Ninth Circuit panel affirmed.

App.2a. Spending only ten sentences on its qualified

immunity analysis, the panel correctly noted that

Hudacko still maintained his constitutional parental

rights as to “‘any gender identity related surgery,’

which required [his] consent.” App.5a. But the Ninth

Circuit determined that, from the perspective of “a

reasonable person” and what they would have known,

App.4a (quoting Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982)), “it was not clear the implant procedure fell

within [the] ‘surgery’ exception in the custody order,”

App.5a. The panel further observed that “Hudacko

cites no clearly established law creating a parental

liberty interest in precluding the procedure at issue

here when the other parent and minor child consent to

it.” Ibid. For that proposition, the Ninth Circuit relied

on and quoted from Carroll v. Carman, 574 U.S. 13, 16

(2014) (per curiam) (“[E]xisting precedent must have

placed the statutory or constitutional question beyond

debate.”). App.4a-5a.

Hudacko petitioned for panel and en banc review,

and while “[a] judge requested a vote on whether to

rehear the matter en banc,” it failed to receive a

majority of votes. Hudacko’s petition was denied.

App.93a-94a.

REASONS FOR GRANTING THE PETITION

This petition presents a question that multiple

Justices have recognized is one of national

importance—lower courts misreading this Court’s

precedent to avoid reaching the merits of contentious

constitutional issues in the area of parental rights.

And lower courts are profoundly split on what a court

may look to in determining what is clearly established

law. Additionally, this case presents an opportunity to

align qualified immunity doctrine more fully with the

text of and history surrounding section 1983. Finally,

since the underlying action was dismissed at the

pleading stage, the petition presents a clean and

narrow vehicle to decide these issues.

This Petition Presents an Issue that

Multiple Justices Have Recognized as a

“Question of Great and Growing National

Importance.”

At least four Justices agree that the underlying

merits issue here presents a “question of great and

growing national importance.” Parents Protecting Our

Child., UA v. Eau Claire Area Sch. Dist., 145 S.Ct. 14,

14 (2024) (Alito, J., dissenting from denial of

certiorari). In his dissent in Parents Protecting, Justice

Alito, joined by Justice Thomas, declared that “when,

without parental knowledge or consent, [the

government] encourages a [minor] to transition to a

new gender or assists in that process,” this “presents

a question of great and growing national importance.”

Ibid. 6 That is exactly what happened here.

In that dissent, moreover, Justices Alito and

Thomas noted the lower court’s “questionable

understanding of Clapper [v. Amnesty International

USA, 568 U.S. 398 (2013),] and related standing

decisions”—where the lower court held that parents

lacked standing to challenge a government policy

facilitating transitioning without parental knowledge

or consent. Parents Protecting, 145 S.Ct. at 14 (Alito,

J., dissenting from denial of certiorari). These Justices

expressed concern “that some federal courts are

succumbing to the temptation to use the doctrine of

Article III standing as a way of avoiding some

particularly contentious constitutional questions.” Id.

at 14-15. And as important as it is to “heed the limits

of [courts’] constitutional authority,” it is “equally

important” that courts “carry out their ‘virtually

unflagging obligation *** to exercise the jurisdiction

given them.’” Id. at 15 (quoting Colorado River Water

Conservation Dist. v. United States, 424 U.S. 800, 817

(1976)).

Justice Alito, joined by Justice Thomas and

Justice Gorsuch, reiterated these concerns in Lee v.

Poudre School District R-1, 146 S.Ct. 26, 2025 WL

2906469 (2025) (Alito, J., statement respecting denial

of certiorari). There these Justices emphasized their

6 Justice Kavanaugh would have granted the petition in Parents

Protecting Our Children, UA v. Eau Claire Area School District.

See 145 S.Ct. 14, 14 (2024).

“concern[] that some federal courts are ‘tempted’ to

avoid confronting a ‘particularly contentious

constitutional question’: whether [the government]

violates parents’ fundamental rights ‘when, without

parental knowledge or consent, it encourages a

student to transition to a new gender or assists in that

process.’” Id. at *1 (cleaned up) (quoting Parents

Protecting, 145 S.Ct. at 14 (Alito, J., dissenting)).

These Justices also noted that government

entities with “policies *** that purposefully interfere

with parents’ access to critical information about their

children’s gender-identity choices and [government]

personnel’s involvement in and influence on those

choices” are both “troubling *** and tragic.” Ibid. And

they viewed the question presented by petitioners—

“[w]hether [the government] may discard the

presumption that fit parents act in the best interests

of their children and arrogate to itself the right to

direct the care, custody, and control of their children,”

Pet. at i, Lee v. Poudre Sch. Dist. R-1, 146 S.Ct. 26

(2025) (No. 25-89)—as a question of “great and

growing national importance.” Lee, 2025 WL 2906469,

*1 (Alito, J., statement) (quoting Parents Protecting,

145 S.Ct. at 14 (Alito, J., dissenting)).

That same concern in a similar context—

misreading the Court’s “[qualified immunity]

decisions” to “avoid[] [the] particularly contentious

constitutional questions” of whether the state can

encourage or assist the gender transitioning of minors

“without parental knowledge or consent”—is the

fundamental problem here. Parents Protecting, 145

S.Ct. at 14-15 (Alito, J., dissenting); see also Lee, 2025

WL 2906469, *1 (Alito, J., statement). After all,

qualified immunity, like standing, enables courts to

avoid the merits of constitutional parental rights

claims, as occurred below.

That is because this Court, for over four decades,

has consistently characterized qualified immunity as

“an immunity from suit rather than a mere defense to

liability.” Plumhoff, 572 U.S. at 771-772 (quoting

Pearson v. Callahan, 555 U.S. 223, 231 (2009) in turn

quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).

And therefore, “[q]ualified immunity, similar to

absolute immunity, is an entitlement not to stand trial

under certain circumstances.” Mitchell, 472 U.S. at

512. Not surprisingly, then, some federal courts have

compared the functional equivalence of standing and

qualified immunity doctrines, finding they both “limit

judicial elaboration of the contours of constitutional

rights.” MacIssac v. Town of Poughkeepsie, 770

F. Supp. 2d 587, 600 n.7 (S.D.N.Y. 2011). And that is

because, given this Court’s decision in Pearson, courts

analyzing qualified immunity may reach only whether

a constitutional right was clearly established without

having to decide whether that right was violated. 555

U.S. at 236. Thus, standing and qualified immunity

can both similarly “tempt” federal courts “to avoid

confronting a ‘particularly contentious constitutional

question’: whether [the government] violates parents’

fundamental rights ‘when, without parental

knowledge or consent, it encourages a student to

transition to a new gender or assists in that process.’”

Lee, 2025 WL 2906469, *1 (Alito, J., statement)

(cleaned up) (quoting Parents Protecting, 145 S.Ct. at

14 (Alito, J., dissenting)).

This Court’s review is necessary to avoid this

“troubling *** and tragic” national trend. Ibid.

II. In Affirming Qualified Immunity, the Ninth

Circuit Acted In Tension with This Court’s

Precedent and Cemented a Deep Circuit

Split on What Materials Are Relevant to

Determining Clearly Established Law.

By solely looking to judicial precedent to

determine whether clearly established law had been

violated, the Ninth Circuit acted not only in tension

with this Court’s precedent, but directly in conflict

with at least seven other circuits—by adopting the

minority view in a split involving all the circuits. And,

had the Ninth Circuit followed the majority view, it

would not have dismissed Hudacko’s section 1983

claim on qualified immunity grounds.

This Court’s precedent requires courts

to examine the “information possessed”

by the state actor and to perform the

analysis from the perspective of an

“official in the defendant’s shoes” in

determining whether clearly

established law was violated.

As this Court noted earlier this year, “[t]o find

that a right is clearly established, courts generally

need to identify a case where an officer acting under

similar circumstances was held to have violated the

Constitution.” Zorn, 146 S.Ct. at 930 (emphasis added)

(cleaned up). But “generally” does not mean “always,” 7

thus leaving the door open to the examination of other

materials for the clearly established-law analysis.

7 See Generally, Merriam-Webster Online Dictionary (defined as

meaning

“usually”),

https://www.merriam-webster.com/

dictionary/generally (last visited Aug. 3, 2026).

This is consistent with this Court’s observation that

an “examination of the information possessed by [state

actors claiming qualified immunity]” is appropriate.

Anderson, 483 U.S. at 641 (emphasis added).

Moreover, the proper perspective is whether “any

reasonable official in the defendant’s shoes would have

understood that he was violating [the law].” Plumhoff,

572 U.S. at 778-779 (2014) (emphasis added) (citing alKidd, 563 U.S. at 741-742). The information an official

possessed and the perspective from “the defendant’s

shoes” includes more than just the case law they knew.

Thus, in Hope v. Pelzer, 536 U.S. 730, 744 (2002),

this Court concluded that state actors “violated clearly

established law,” which conclusion was “buttressed by

the fact that the [Department of Justice] specifically

advised the [state department of corrections] of the

unconstitutionality of its practices before the incidents

in this case took place.” Likewise, in Groh v. Ramirez,

540 U.S. 551, 564 (2004), “the guidelines of [the state

actor’s] own department placed him on notice that he

might be liable for [violating clearly established law].”

It this therefore hard to square what the Ninth

Circuit did below with this precedent. Relying on the

per curiam decision in Carroll v. Carman that

“existing precedent must have placed the statutory or

constitutional question beyond debate,” 574 U.S. at 16

(quoting al-Kidd, 563 U.S. at 741), the panel faulted

Hudacko for failing to cite case law “under similar

facts.” App.5a. And thus, the panel ignored Hudacko’s

pleading that the procedure was surgery, that the

defendants knew it was, and that the defendants knew

about the court order and that he did not consent, for

which Hudacko relied on non-precedential law

(California law and the custody order) and medical

information possessed by the defendants.

Admittedly, though, “the Supreme Court’s

commentary on whether non-caselaw sources[] *** can

be considered clearly established law is sparse and

conflicting.” Eliana Fleischer, Stating the Obvious:

Departmental Policies As Clearly Established Law, 90

U. Chi. L. Rev. 1435, 1443 (2023). Not surprisingly,

then, lower courts are fractured on the issue. See, e.g.,

John F. Preis, Qualified Immunity & Subjective

Knowledge, 60 Wake Forest L. Rev. 627, 674 (2025)

(“An issue that is currently unsettled in the circuit

courts is whether a department’s internal policies or

trainings are relevant to qualified immunity.”).

Five Circuits look only to judicial

decisions as valid interpretive sources

of clearly established law.

On one end of the spectrum in this lower court

confusion is the Ninth Circuit with four other circuits,

which take an exceedingly narrow approach to the

types of materials that can be examined for

determining clearly established law. For example, the

Tenth Circuit has emphatically declared that “judicial

decisions are the only valid interpretive source of the

content of clearly established law.” Frasier v. Evans,

992 F.3d 1003, 1015 (10th Cir. 2021) (emphasis

added). See also ibid. (“[W]hatever training the

officers received concerning the nature of [the

plaintiff’s] First Amendment rights was irrelevant to

the clearly-established-law inquiry.”).

Likewise, and taking an even narrower view, the

Fifth Circuit not only requires judicial precedent to be

the sole valid interpretive source for determining

clearly established law, that circuit prohibits looking

to non-precedential opinions. Salazar v. Molina, 37

F.4th 278, 286 (5th Cir. 2022) (“Because

nonprecedential opinions do not establish any binding

law for the circuit, they cannot be the source of clearly

established law for qualified immunity analysis.”

(citation omitted)). The D.C. Circuit is also part of this

minority, looking only to judicial precedent to

determine clearly established law. See, e.g., Bernier v.

Allen, 38 F.4th 1145, 1152 (D.C. Cir. 2022) (“Qualified

immunity may be unavailable when plaintiffs identify

cases of controlling authority in their jurisdiction at

the time of the incident or a consensus of cases of

persuasive authority such that a reasonable officer

could not have believed that his actions were lawful.”

(cleaned up)). See also Youngbey v. March, 676 F.3d

1114, 1116, 1117 (D.C. Cir. 2012) (per curiam) (“Since

we have found neither controlling precedent of the

Supreme Court or this circuit, nor a consensus of

persuasive authority from our sister circuits, we must

reverse” the district court’s denial of qualified

immunity). And the Seventh Circuit also appears to

take the minority position. See Reed v. Palmer, 906

F.3d 540, 547 (7th Cir. 2018) (describing the circuit’s

progression of first looking to Supreme Court and

circuit precedent, then to “all relevant caselaw,” but

not mentioning the option of looking to non-case law

or other types of law).

Thus, in these five circuits, courts may not

examine any other type of law besides judicial

precedent for determining whether clearly established

law was violated. This position smacks of judicial

hubris given that the role of federal courts is to

interpret law, not make it. See, e.g., Danforth v.

Minnesota, 552 U.S. 264, 290 (2008) (“[O]ur normal

role is to interpret law created by others and ‘not to

prescribe what it shall be.’” (quoting American

Trucking Ass’ns, Inc. v. Smith, 496 U.S. 167, 201

(1990) (Scalia, J., concurring in judgment)). And, in

any event, case law doesn’t exhaust the universe of law

binding government actors.

Likewise, in these five circuits nor can any nonlegal materials be examined for the clearly

established-law inquiry, depriving courts of the ability

to look to the “information possessed” by a state actor

from the perspective of someone “in [their] shoes.” See

Anderson, 483 U.S. at 641; Plumhoff, 572 U.S. at 778779.

Seven other circuits permit

consideration of non-case law sources of

law and non-legal materials.

On the other end of the spectrum are those

circuits that broadly define the universe of materials

that may be examined to determine if clearly

established law was violated. For instance, the First

Circuit just last year declared that, while courts “look

mainly to [judicial] precedent” for this analysis, they

may also examine “certain non-case-law sources, like

statutes, prison regulations, and government studies

and reports.” Cintron v. Bibeault, 148 F.4th 37, 51-52

(1st Cir. 2025) (citations omitted). Hence, in that case,

besides judicial precedent, the court examined a report

that the Rhode Island Legislature commissioned,

which included expert testimony related to the alleged

constitutional violation (sleep deprivation of a

prisoner) to decide if clearly established law was

violated. Id. at 52-53. See also Irish v. Fowler, 979 F.3d

65, 77 (1st Cir. 2020) (“A defendant’s adherence to

proper police procedure bears on all prongs of the

qualified immunity analysis.”).

Likewise, the Fourth Circuit found it appropriate

to deny qualified immunity given “the officers’

training and existing case law at the time.” See Iko v.

Shreve, 535 F.3d 225, 241 (4th Cir. 2008) (emphasis

added). See also United States v. McKenzie-Gude, 671

F.3d 452, 460-461 (4th Cir. 2011) (determining that

“actual uncontroverted facts known to—as opposed to

subjective beliefs held by—an officer *** are certainly

relevant in the qualified immunity context, which

requires courts to ascertain whether a ‘reasonable

officer’ could have believed a search was lawful ‘in

light of clearly established law and the information the

searching officers possessed’” (quoting Anderson, 483

U.S. at 641)). The Sixth Circuit has similarly

determined that an officer’s “violation of [department]

policies” was “relevant” to the clearly established law

analysis. Latits v. Phillips, 878 F.3d 541, 553 (6th Cir.

2017). See also Barker v. Goodrich, 649 F.3d 428, 436

(6th Cir. 2011) (“A defendant’s deviation from normal

practice and prison policies can also provide notice

that his actions are improper.”).

Other circuits likewise fit into this majority

camp. For example, the Eighth Circuit noted in finding

an officer entitled to qualified immunity that

“extensive training and experience in drug

interdiction made him an officer whose strong belief

that he had found a controlled substance in an

automobile was likely to be objectively reasonable.”

New v. Denver, 787 F.3d 895, 901 (8th Cir. 2015). See

also Nelson v. Correctional Med. Servs., 583 F.3d 522,

533 (8th Cir. 2009) (en banc) (“The ADC

administrative regulations in effect also reflected the

constitutional protections recognized in these judicial

decisions.”). Similarly, the Second Circuit concluded

that “[t]he officers’ failure to comply with their

training and the relevant state law, provides strong

support for the conclusion that the officers should have

been aware of the wrongful character of their conduct.”

Okin v. Village of Cornwall-On-Hudson Police Dep’t,

577 F.3d 415, 437 (2d Cir. 2009). The Third Circuit

also allows examination of non-case law materials for

the clearly established-law analysis, such as a

government report that included not only judicial

precedent but also “case studies, and statistics.”

Williams v. Secretary Pa. Dep’t of Corr., 117 F.4th 503,

520 (3d Cir. 2024), cert. denied sub nom. Wetzel v.

Williams, 146 S.Ct. 91 (2025).

Perhaps most relevant to this petition, in the

context of qualified immunity for state medical

personnel, the Eleventh Circuit has determined that

“the defendant’s actions are evaluated based on the

law established in earlier court decisions and

contemporary medical standards, and in the light of

the information possessed by the official at the time

the conduct occurred.” Kruse v. Williams, 592 F. App’x

848, 855-856 (11th Cir. 2014) (per curiam) (emphasis

added) (cleaned up). See also Adams v. Poag, 61 F.3d

1537, 1543 (11th Cir. 1995) (“In a medical treatment

case, a plaintiff may demonstrate the existence of a

clearly established medical standard either through

reference to prior court decisions or to the

contemporary standards and opinions of the medical

profession.”).

Thus, depending on which circuit one lives in, the

qualified immunity analysis looks much different.

D. Had the Ninth Circuit followed the

majority approach, it could not have

granted Respondents’ motions to

dismiss.

Unfortunately for Hudacko, he lives in the Ninth

Circuit with its minority view that only case law may

be examined to determine clearly established law. Had

he lived in one of the other seven circuits discussed

above, the court could not have dismissed his

complaint at the pleading stage on qualified

immunity.

That is because Hudacko clearly alleged that,

under California law defining “surgery” or the

dictionary definition of that term, the court order’s

reference to surgery covered the implant procedure

performed on his son. 8

But that’s not all. Hudacko also plainly alleged

that, based on Respondents’ experience performing

this surgery (which would include their training and

any manuals or department policies related to it), the

manufacturer’s description of the implant procedure,

and Respondent UCSF’s own description of the

procedure as “surgery” in its bill, Respondents knew

this was surgery. And Hudacko also alleged that

Respondents knew he had not consented to it. 9

8 This Court could take a middle position between the circuits,

allowing other law but not non-legal materials to be considered

in the clearly established law analysis. That middle ground would

also mean Hudacko would defeat qualified immunity at the

pleading stage.

9 The panel faulted Hudacko for “cit[ing] no clearly established

law creating a parental liberty interest in precluding the

This should have made the analysis simple at the

motion-to-dismiss stage. Hudacko raised Supreme

Court and circuit precedent that he has a Fourteenth

Amendment right to direct his child’s medical care.

See App.131a-132a. Based on the court order, he

maintained his right to exercise such direction in the

specific context of “any gender identity related

surgery.” App.115a-116a, 152a. And Hudacko pleaded

that Respondents knew what they were doing was a

type of surgery based on non-case law materials and

they purposefully performed the surgery without

seeking his permission, knowing they were required to

obtain it. App.115a-119a, 126a-129a. His section 1983

claim, then, would have easily survived a Rule 12(b)(6)

motion on qualified immunity grounds.

The ability to raise constitutional claims against

state actors in federal court should not depend on one’s

address. Only this Court can bring uniformity to the

lower courts on this important issue.

procedure at issue here when the other parent and minor child

consent to it.” App.5a. But that ignores his pleadings and the

court order regarding gender-identity related surgery. It did not

matter under the order that the “other parent and minor child

consent[ed] to [the surgery],” ibid., because Hudacko’s consent

was also plainly required, App.115a, 152a. Thus, based on the

order, Hudacko had full veto authority for this type of surgery

and his ex-wife’s or child’s consent could not override that. He

thus maintained all of his constitutional rights to direct medical

care for his child in this limited context, and he cited case law

showing that the parental right to do so is clearly established.

That should have been sufficient.

III. The Court Should Use This Opportunity to

Return to its Prior Practice of Requiring a

Threshold Historical Inquiry as Part of the

Qualified Immunity Determination.

This case not only gives this Court an opportunity

to resolve a mature circuit split, it also provides an

opportunity to return the entire qualified-immunity

doctrine to its proper scope. Repeated criticisms of the

ahistorical nature of modern qualified immunity

doctrine can be answered by reverting to previous

precedent—and the identical current practice in

absolute immunity cases. That precedent requires a

threshold historical inquiry into whether a state actor

enjoyed common-law immunity when section 1983 was

enacted. Adopting that historical test would allow the

Court to avoid a one-size-fits-all test, maintaining

robust qualified immunity for state actors, like law

enforcement, who can show historical immunity, but

adopting a more relaxed standard based on Hope v.

Pelzer for state actors lacking an historical pedigree of

immunity. And that distinction is decisive here

because state-employed medical personnel did not

traditionally enjoy common-law immunity.

Multiple Justices have criticized

modern qualified immunity doctrine for

straying far from its historical roots.

For over three decades, Justices of this Court

have criticized the ahistorical nature of qualified

immunity doctrine. For example, Justice Kennedy

stated that this Court’s absolute “immunity doctrine is

rooted in historical analogy, based on the existence of

common-law rules in 1871,” but that “[i]n the context

of qualified immunity for public officials” the Court

has “diverged to a substantial degree from the

historical standards.” Wyatt v. Cole, 504 U.S. 158, 170

(1992) (Kennedy, J., concurring). And Justice Kennedy

pointed to this Court’s decision in Harlow v.

Fitzgerald, 457 U.S. 800 (1982), as having “depart[ed]

from history in the name of public policy, reshaping

immunity doctrines in light of those policy

considerations.” 10 Wyatt, 504 U.S. at 171 (Kennedy, J.,

concurring). See also Anderson, 483 U.S. at 645

(admitting that Harlow “completely reformulated

qualified immunity along principles not at all

embodied in the common law”).

Justice Scalia, joined by Justice Thomas, would

likewise admit that the Court’s “treatment of qualified

immunity under 42 U.S.C. §1983 has not purported to

be faithful to the common-law immunities that existed

when §1983 was enacted, and that the statute

presumably intended to subsume.” Crawford-El v.

Britton, 523 U.S. 574, 611 (1998) (Scalia, J.,

dissenting). See also Burns v. Reed, 500 U.S. 478, 498

n.1 (1991) (Scalia, J., concurring in part and

dissenting in part) (noting that in Harlow and

Anderson, the Court “extended [§1983] qualified

immunity beyond its scope at common law”).

But perhaps most consistently and thoroughly,

Justice Thomas has declared that “the doctrine of

qualified immunity for executive officials[] *** ha[s]

diverged from the historical inquiry mandated by the

statute.” Ziglar v. Abbasi, 582 U.S. 120, 158-159

10 Justice Kennedy noted that the policy concern that gave rise to

the Court’s departure from historical standards—the summary

judgment standard—has since been “alleviated.” Wyatt v. Cole,

504 U.S. 158, 171 (1992) (Kennedy, J., concurring).

(2017) (Thomas, J., concurring in part and in

judgment). Hence, “[t]he ‘scant resemblance’ between

§1983 today and §1983 as it was traditionally

understood creates good reason to doubt our modern

understanding.” Medina v. Planned Parenthood

S. Atl., 606 U.S. 357, 391 (2025) (Thomas, J.,

concurring) (quoting Crawford-El, 523 U.S. at 611

(Scalia, J., dissenting)). “After all,” he noted, “a

statute’s meaning turns on what its words ‘conveyed

to reasonable people at the time they were written.’”

Ibid. (quoting Antonin Scalia & Bryan Garner,

Reading Law 16 (2012)). So he warned the Court that,

“[u]ntil we shift the focus of our inquiry to whether

immunity existed at common law, we will continue to

substitute our own policy preferences for the

mandates of Congress.” Ziglar, 582 U.S. at 160

(Thomas, J., concurring). 11 And, “[t]o ensure that we

are not elevating demonstrably erroneous decisions

over duly enacted federal law, we should in

appropriate cases revisit the proper bounds of §1983.”

Medina, 606 U.S. at 391 (Thomas, J., concurring)

(cleaned up).

This is that case.

11 See also Malley v. Briggs, 475 U.S. 335, 342 (1986) (“[O]ur role

is to interpret the intent of Congress in enacting §1983, not to

make a freewheeling policy choice, and that we are guided in

interpreting Congress’ intent by the common-law tradition.”);

William Baude, Is Qualified Immunity Unlawful?, 106 Cal. L.

Rev. 45, 45 (2018) (describing “qualified immunity doctrine” as

“inconsistent with conventional principles of statutory

interpretation”); Tyler B. Lindley, Anachronistic Readings of

Section 1983, 75 Ala. L. Rev. 897, 902 (2024) (noting the

inconsistency between modern qualified immunity doctrine and

section 1983’s original meaning).

1. Relevant here are two of Justice Thomas’

specific critiques. First, he observed that “[t]here

likely is no basis for the objective inquiry into clearly

established law that our modern cases prescribe.”

Baxter v. Bracey, 590 U.S. 1011, 1013 (2020) (Thomas,

J., dissenting from denial of certiorari). That is

because “the Court adopted the [clearly established

law] test not because of ‘general principles of tort

immunities and defenses,’ but because of a ‘balancing

of competing values’ about litigation costs and

efficiency.” Id. at 1014 (quoting first Malley, 475 U.S.

at 339, and then Harlow, 457 U.S. at 816). See also id.

at 1013-1014 (“Leading treatises from the second half

of the 19th century and case law until the 1980s

contain no support for this ‘clearly established law’

test.”). Thus, “[w]e have not attempted to locate that

standard in the common law as it existed in 1871.”

Ziglar, 582 U.S. at 159 (Thomas, J., concurring).

Instead, “[w]e apply this ‘clearly established’ standard

‘across the board’ and without regard to ‘the precise

nature of the various officials’ duties or the precise

character of the particular rights alleged to have been

violated.’” Ibid. (quoting Anderson, 483 U.S. at 641643).

This Court may address this historical aberration

through this petition’s first question presented.

2. Justice Thomas has also pointed out that

“[t]here also may be no justification for a one-size-fitsall, subjective immunity based on good faith.” Baxter,

590 U.S. at 1014 (Thomas, J., dissenting). In other

words, “the one-size-fits-all doctrine is also an odd fit

for many cases because the same test applies to

officers who exercise a wide range of responsibilities

and functions.” Hoggard v. Rhodes, 141 S.Ct. 2421,

2421 (2021) (Thomas, J., statement respecting denial

of certiorari). And the Court “ha[s] never offered a

satisfactory explanation to th[e] question” of “why

should [state actors], who have time to make

calculated choices about enacting or enforcing

unconstitutional policies, receive the same protection

as a police officer who makes a split-second decision to

use force in a dangerous setting?” Id. at 2422.

As Justice Thomas recognized, “[t]his [one-sizefits-all] approach is even more concerning because our

analysis is not grounded in the common-law backdrop

against which Congress enacted §1983.” Ibid. (cleaned

up). Thus, he counseled, “we at least ought to return

to the approach of asking whether immunity was

historically accorded the relevant official in an

analogous situation at common law.” Baxter, 590 U.S.

at 1014 (cleaned up). See also Hoggard, 141 S.Ct. at

2422 (“Whatever the history establishes, we at least

ought to consider it.”).

For at least three reasons, such a reconsideration

would be appropriate. First, this Court’s “earlier

decisions on s[ection] 1983 immunities” were

“predicated upon a considered inquiry into the

immunity historically accorded the relevant official at

common law and the interests behind it.” Imbler v.

Pachtman, 424 U.S. 409, 421 (1976).

Second, “[t]he Court has continued to conduct this

inquiry in absolute immunity cases, even after the sea

change in qualified immunity doctrine.” Baxter, 590

U.S. at 1014 (citing Burns, 500 U.S. at 489-492). And

Justice Thomas declared that “[w]e should do so in

qualified immunity cases as well.” Ibid. This would

also bring the two types of immunity in parallel and

restore this Court’s earlier qualified immunity

analysis.

Finally, doing so would not be strange because

qualified immunity doctrine already requires

historical analysis: “To determine the elements of a

constitutional claim under §1983, this Court’s practice

is to first look to the elements of the most analogous

tort as of 1871 when §1983 was enacted.” Thompson v.

Clark, 596 U.S. 36, 43 (2022). Doing so in another

context would involve a familiar mode of analysis.

The Court may address this historical deviation

in the second question presented.

State actors who did not enjoy commonlaw immunity in 1871, like Respondents,

should not be treated the same as state

actors who did.

The state actors to whom the lower courts

granted qualified immunity in this case were state

doctors and a state attorney for the hospital. These

actors did not historically receive common law

immunity, and therefore a higher standard for

obtaining qualified immunity should apply to them

than state actors who enjoyed such immunity when

section 1983 was enacted.

Any state actor who cannot show

the historical pedigree of immunity

should be subject to the Hope v.

Pelzer standard.

It makes sense to treat state actors like

Respondents here who did not historically enjoy

common-law immunity differently than those who did.

After all, “why should [state actors], who have time to

make calculated choices about enacting or enforcing

unconstitutional policies, receive the same protection

as a police officer who makes a split-second decision to

use force in a dangerous setting?” Hoggard, 141 S.Ct.

at 2422 (Thomas, J., statement respecting denial of

certiorari).

1. That distinction is well illustrated in this case.

There was no split-second decision facing the state

defendants. In fact, they did not perform the surgery

until nearly a year after they knew of the court order

prohibiting it without Hudacko’s consent and that he

did not consent. App.117a-118a, 123a, 157a-159a,

245a-254a. To give them the same latitude under

qualified immunity as law enforcement facing a “splitsecond decision” makes no sense today and is not

supported by history.

They and other state actors lacking an historical

pedigree of immunity should not be given the same

treatment under qualified immunity. They should

instead face a higher hurdle to successfully invoke

that doctrine. Put another way, plaintiffs should face

a lighter burden for defeating a qualified immunity

claim. And the Court already has a doctrinal test it can

turn to in Hope. See 536 U.S. 730.

2. The Hope test for clearly established law

differs from this Court’s more recent pronouncements.

That test does not require “fundamentally similar” or

even “materially similar” facts. Hope, 536 U.S. at 741.

Rather, “officials can still be on notice that their

conduct violates established law even in novel factual

circumstances” so long as defendants had “fair

warning that their alleged treatment of [the plaintiff]

was unconstitutional.” Ibid.

Had that been the standard below, Hudacko’s

section 1983 claim would have survived a motion to

dismiss based on qualified immunity. And this Court

relied on this standard in recent years. See Taylor v.

Riojas, 592 U.S. 7, 8-9 (2020) (per curiam). See also

Tolan v. Cotton, 572 U.S. 650, 656 (2014) (per curiam)

(noting Hope’s “fair warning” element (quoting Hope,

536 U.S. at 741)).

But this Court has ignored Hope more than

relying on it in section 1983 qualified immunity

cases. 12 Hence, adopting the Hope standard for state

officials who did not historically enjoy immunity will

also clarify when that standard should be invoked—as

lower courts are currently confused if and when to

follow Hope compared to more recent case law’s

increasingly stringent standard. See, e.g., N.E.L. v.

Douglas County, 740 F. App’x 920, 928 n.18 (10th Cir.

2018) (“Hope v. Pelzer appears to have fallen out of

favor, yielding to a more robust qualified immunity.”);

Morgan v. Swanson, 659 F.3d 359, 373 (5th Cir. 2011)

(en banc) (“The Supreme Court’s admonition in alKidd that we should not ‘define clearly established law

at a high level of generality’ sits in tension with its

earlier statement in Hope v. Pelzer.”); Villalobos v.

12 See, e.g., Zorn v. Linton, 146 S.Ct. 926 (2026) (per curiam) (not

mentioning Hope); City of Tahlequah v. Bond, 595 U.S. 9 (2021)

(per curiam) (same); Rivas-Villegas v. Cortesluna, 595 U.S. 1

(2021) (per curiam) (same); City of Escondido v. Emmons, 586

U.S. 38 (2019) (per curiam) (same); Kisela v. Hughes, 584 U.S.

100 (2018) (per curiam) (same); White v. Pauly, 580 U.S. 73 (2017)

(per curiam) (same); Mullenix v. Luna, 577 U.S. 7 (2015) (per

curiam) (same); Carroll v. Carman, 574 U.S. 13 (2014) (per

curiam) (same); Stanton v. Sims, 571 U.S. 3 (2013) (same);

Reichle v. Howards, 566 U.S. 658 (2012) (same); Ashcroft v. alKidd, 563 U.S. 731 (2011) (same).

Picicco, 168 F.4th 1057, 1063 n.2 (7th Cir. 2026) (“The

Supreme Court usually reserves th[e] escape hatch [of

Hope’s standard] for egregious factual scenarios in the

Eighth Amendment context.”).

3. By the same token, state actors who

historically enjoyed common-law immunity at the time

of the adoption of section 1983 can continue to receive

the protection of this Court’s more recent qualified

immunity doctrine. That doctrine asks a different

question than Hope: “whether the violative nature of

particular conduct is clearly established.” Mullenix v.

Luna, 577 U.S. 7, 12 (2015) (per curiam) (quoting alKidd, 563 U.S. at 742). So “[t]he relevant precedent

must define the right with a ‘high degree of specificity,’

so that ‘every reasonable official would interpret it to

establish the particular rule the plaintiff seeks to

apply.’” Zorn, 146 S.Ct. at 930 (quoting District of

Columbia v. Wesby, 583 U.S. 48, 63 (2018)). And

“[s]uch specificity is especially important in the Fourth

Amendment context, where the Court has recognized

that it is sometimes difficult for an officer to determine

how the relevant legal doctrine *** will apply to the

factual situation the officer confronts.” Mullenix, 577

U.S. at 12 (cleaned up).

Medical personnel did not

historically receive immunity.

Government-employed medical personnel did not

enjoy common-law immunity around the time section

1983 was adopted. Of all the circuits, the Sixth Circuit

has done the deepest dive into the historical record in

a case where a section 1983 suit was brought against

a prison psychiatrist. See McCullum v. Tepe, 693 F.3d

696, 697 (6th Cir. 2012). First examining English

common law, the court found that “it does not appear

that doctors generally enjoyed any special kind of

immunity.” Id. at 702. American case law in the years

following section 1983’s passage confirmed the same.

Id. at 703-704. In short, the court could find no “indicia

that a paid physician (whether remunerated from the

public or private fisc) would have been immune from

suit at the common law *** at the time that Congress

passed §1983.” Id. at 704.

Hence, “the precedents that do exist point in one

direction: there was no special immunity for a doctor

working for the state.” Id. at 703. And this history

would thus apply to the state defendants in this case.

For all these reasons, certiorari should be granted

to address and resolve both of the questions presented.

IV. This is a Clean Vehicle.

Nor are there countervailing reasons for this

Court to deny review. Deciding the questions

presented here would allow this Court to avoid the

fact-intensive analysis necessary when addressing

qualified immunity’s current clearly established-law

prong. See Trabucco v. Rivera, 141 F.4th 720, 730 (5th

Cir. 2025) (“[A]n analysis of the clearly established

prong of qualified immunity is fact-intensive.”

(cleaned up)); Peatross v. City of Memphis, 818 F.3d

233, 244 n.6 (6th Cir. 2016) (“Qualified immunity is a

fact-intensive analysis.”). And resolving those issues

would avoid complicated factual analysis because this

case was dismissed at the pleading stage, before

discovery. Hence, the Court need only read the second

amended complaint and its attachments, as well as

relevant case law, thus avoiding wading through an

extensive record. Additionally, this Court need not

decide whether Respondents receive qualified

immunity but merely determine the appropriate test

and remand for its application.

What is more, the complaint and the Ninth

Circuit’s decision clearly raise the issues presented in

the petition. As to the first question presented,

Hudacko plainly pleaded that he still had his

constitutional parental rights over the medical care of

his son as to “any gender identity related surgery,” he

plainly pleaded that for multiple reasons the

defendants knew they had performed surgery on his

son and that this was forbidden by the custody order,

and the Ninth Circuit obviously ignored these factual

allegations and instead relied solely on a lack of

judicial precedent.

As to the second question presented, the petition

clearly raises and briefs the question, including that

the government defendants did not enjoy immunity at

the time section 1983 was adopted. Nor does it matter

that the second question presented was not raised

below—there is no need to futilely raise issues

squarely foreclosed by this Court’s precedent. Carr v.

Saul, 593 U.S. 83, 93 (2021) (“[T]his Court has

consistently recognized a futility exception” because

“[i]t makes little sense to require litigants to present

claims to adjudicators who are powerless to grant the

relief requested.”).

In short, this petition presents a clean, narrow

vehicle to decide the questions presented.

CONCLUSION

Congress enacted section 1983 in response to

Reconstruction amendments protecting Americans—

and particularly those newly freed from slavery—from

states infringing federal constitutional rights. Yet this

Court’s later development of qualified immunity

doctrine, nowhere found in the statute’s text, turns

section 1983’s civil rights protection on its head by

providing more safeguards to violators of

constitutional rights than to those rights themselves.

Only this Court can restore the statute to its original

meaning by reigning in an overly muscular qualified

immunity doctrine that has severely split lower courts

and frustrated constitutional rights in contexts well

beyond historical applications of immunity. The

petition should be granted.

Respectfully submitted,

GENE C. SCHAERR

Counsel of Record

HANNAH C. SMITH

JAMES C. PHILLIPS

SCHAERR | JAFFE LLP

1717 K Street NW

Suite 900

Washington, DC 20006

(202) 787-1060

gschaerr@schaerr-jaffe.com

August 7, 2026

Counsel for Petitioner

APPENDIX

TABLE OF APPENDICES

APPENDIX A:

Memorandum Opinion,

Hudacko v. Regents of the University

of California, No. 24-7360 (9th Cir.),

Oct. 21, 2025, Doc. 81.1 ......................................... 1a

APPENDIX B:

Order Re: Motions to Dismiss,

Hudacko v. Lee, No. 3:23-cv-05316-SI

(N.D. Cal.), Nov. 25, 2024, Doc. 117 ................... 10a

APPENDIX C:

Judgment, Hudacko v. Lee,

No. 3:23-cv-05316-SI (N.D. Cal.),

Nov. 26, 2024, Doc. 118 ....................................... 47a

APPENDIX D:

Order Granting in Part and Denying in

Part Defendants’ Motions to Dismiss,

Hudacko v. Lee, No. 3:23-cv-05316-SI

(N.D. Cal.), Aug. 20, 2024, Doc. 86 ..................... 48a

APPENDIX E:

Order, Hudacko v. Regents of the

University of California, No. 24-7360

(9th Cir.), Mar. 11, 2026, Doc. 109.1 ................... 93a

APPENDIX F:

Second Amended Complaint with Exhibits, *

Hudacko v. Lee, No. 3:23-cv-05316-SI

(N.D. Cal.), Aug. 30, 2024, Doc. 90 ..................... 95a

* The names of minor children contained in the exhibits to the

Second Amended Complaint have been replaced with “[S.H.]” and

“[W.H.].” Additionally, sensitive information or information

concerning other individuals has been redacted or excerpted.

iia

Ex. A: Findings and Order After Hearing,

Hudacko v. Hudacko, No. D19-05641

(Cal. Super. Ct., Aug. 26, 2020)

(Hiramoto, J.) ..................................................144a

Ex. B: Emails between Ted Hudacko and

Christine Hudacko, Sep. 29, 2020 .................. 157a

Ex. C: Email from Christine Hudacko to

Ted Hudacko, Oct. 18, 2021, cc’s Nathaniel

Bigger, Daniel Harkins ................................... 159a

Ex. D: United Healthcare Explanation

of Benefits for “Surgery” services on

Aug. 4, 2021..................................................... 160a

Ex. E: UCSF Pediatric Endocrine Parent

or Guardian Consent Forms,

Feb. 17, 2021 ...................................................161a

Ex. F: [omitted] ............................................... 169a

Ex. G: Patient Progress Notes, UCSF,

June 8, 2021 .................................................... 169a

Ex. H: Abigail Shrier, Child Custody’s

Gender Gauntlet, City J. (Feb. 7, 2022) ......... 172a

Ex. I: Patient Progress Notes, UCSF,

Aug. 4, 2021..................................................... 192a

Ex. J: Endo Pharmaceuticals Inc.’s

published Prescribing Information for

SUPPRELIN® (rev’d Apr. 2022) .................... 196a

Ex. K: Invoice # INV00965 from

Reproductive Technologies, Inc. for sperm

bank services, Mar. 1, 2021 (client [S.H.]);

Invoice SINV22-1483 from The Sperm

Bank of California, Feb. 18, 2022 (client

[S.H.]) .............................................................. 236a

iiia

Ex. L: United Healthcare Statement for

June 17, 2021-Sep. 15, 2021 [excerpted] ........ 238a

Ex. M: Emails between Daniel S. Harkins,

Nathaniel Bigger, Ted Hudacko, cc’s

Christine Hudacko, bcc’s Paula, Susan,

11/2021 Re: Fertility Preservation ................. 240a

Ex. N: [omitted] ............................................... 244a

Ex. O: Letter from Edward A. Hudacko to

Drs. Stephen M. Rosenthal and Diane

Ehrensaft, UCSF Benioff Children’s

Hospital, Child and Adolescent

Transgender Center Clinic, 10/21/20

(cc’s to Christine Hudacko, Nathanial

Bigger, Daniel S. Harkins, Judge

Hiramoto, and politicians). ............................. 245a

Ex. P: [omitted from original document]........ 254a

Ex. Q: [omitted] ............................................... 254a

APPENDIX G:

42 U.S.C. § 1983 ................................................ 255a

Appendix A

Case: 24-7360, 10/21/2025, DktEntry: 81.1

FILED

OCT 21 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EDWARD ALLYN HUDACKO,

Plaintiff - Appellant,

No. 24-7360

D.C. No.

3:23-cv-05316-SI

REGENTS OF THE

UNIVERSITY OF CALIFORNIA; MEMORANDUM

JANET YI MAN LEE; DIANE

EHRENSAFT; STEPHEN

ROSENTHAL; ASAF ORR;

NATHANIEL BIGGER; DANIEL

HARKINS; CHRISTINE

UNDERHILL,

Defendants - Appellees.

Appeal from the United States District Court

for the Northern District of California

Susan Illston, District Judge, Presiding

Argued and Submitted October 8, 2025

San Francisco, California

* This disposition is not appropriate for publication

and is not

precedent except as provided by Ninth Circuit Rule 36-3.

Before: S.R. THOMAS, NGUYEN, and BRESS, Circuit

Judges.

Edward Hudacko appeals the following orders by

the district court: (1) the dismissal of his Section 1983

action against Daniel Harkins; Nathaniel Bigger;

Christine Underhill; University of California San

Francisco (“UCSF”) doctors Janet Yi Man Lee, Diane

Ehrensaft, and Stephen Rosenthal; and the UCSF

Child and Adolescent Gender Center’s Legal Director

Asaf Orr; (2) the dismissal of his fraudulent

concealment and intentional infliction of emotional

distress (“IIED”) claims against Dr. Lee, Dr.

Ehrensaft, Dr. Rosenthal, and Orr (collectively, the

“UCSF Individuals”); and (3) the denial of six of his

requests for judicial notice. We have jurisdiction under

28 U.S.C. § 1291, and we affirm. 1

Section 1983 Claims

Harkins, Bigger, and Underhill

Only a state actor can be liable under 42 U.S.C.

§ 1983. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526

U.S. 40, 50 (1999). A plaintiff may demonstrate that a

private individual was a de facto state actor under “the

joint action test” by “proving the existence of a

conspiracy” or by showing that the “private party was

a willful participant in joint action with the State or

its agents.” Franklin v. Fox, 312 F.3d 423, 445 (9th Cir.

2002). “To prove a conspiracy between the state and

private parties under section 1983, [plaintiff] must

show an agreement or meeting of the minds to violate

1 We do not address Hudacko’s withdrawn arguments that the

district court judge was biased.

constitutional rights.” United Steelworkers of Am. v.

Phelps Dodge Corp., 865 F.2d 1539, 1540-41 (9th Cir.

1989) (citation modified).

The district court correctly concluded that

Harkins, Bigger, and Underhill are not de facto state

actors. Hudacko’s bare assertions of a “scheme” and

“joint effort,” in his Second Amended Complaint

(“SAC”) are “formulaic recitation[s] of” the joint action

test that are not entitled to the assumption of truth.

Ashcroft v. Iqbal, 556 U.S. 662, 680–81 (2009); see also

In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th

Cir. 2008) (holding that the court is not “required to

accept as true allegations that are merely conclusory,

unwarranted deductions of fact, or unreasonable

inferences”).

Considering only the factual allegations in his SAC,

Hudacko alleges that Harkins 1) was aware of

Provision 7b of the custody order, 2) knew Hudacko

opposed puberty blockers and surgical procedures, 3)

excluded Hudacko from the decision regarding the

implant procedure, and 4) had email exchanges and

calls with other Defendants. But Hudacko does not

allege that Harkins had a duty to include Hudacko in

any discussions between Harkins and other

defendants. Although Hudacko alleges there was a

conference call between Harkins, Orr, and Bigger, the

only information Hudacko cites to support his

“information and belief” that the defendants discussed

the “scheme” during this call is a billing record

showing that Harkins had a “conference call with

counsel” that lasted 0.35 hours. To allege based on that

billing record that the call led to an “agreement for

Defendants to perpetrate the scheme” is an

“unwarranted deduction[] of fact” at best—something

we are not required to accept as true. See In re Gilead,

536 F.3d at 1055.

The SAC also cites UCSF’s progress notes that

Underhill was working with Bigger, Harkins, and Orr

to “achieve resolution in the near future,” but absent

other facts, these notes do not in any way show an

improper scheme or conspiracy to violate Hudacko’s

rights. There is nothing surprising or nefarious about

Harkins and Bigger, as the lawyers representing

Minor and Underhill respectively, working with

Underhill as permitted by the custody order.

Hudacko’s only other factual allegation against Bigger

is that the latter billed time for his legal work. Again,

citing the billing for legal services as support for a

claim of conspiracy is not a plausible allegation. See

Iqbal, 556 U.S. at 678 (holding the plausibility

standard “asks for more than a sheer possibility that

a defendant has acted unlawfully”). Nor was Underhill

a de facto state actor, as the district court correctly

explained.

The UCSF Individuals

The defense of qualified immunity protects

“government officials . . . 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.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “A

right is clearly established only if its contours are

sufficiently clear that a reasonable official would

understand that what he is doing violates that right

. . . [E]xisting precedent must have placed the

statutory or constitutional question beyond debate.”

Carroll v. Carman, 574 U.S. 13, 16 (2014) (citation

modified).

The district court correctly concluded that the

UCSF Individuals are entitled to qualified immunity

because Hudacko’s alleged right was not clearly

established. Although the rights of parents in the

“care, custody, and control of their children” is a wellestablished liberty interest under the Fourteenth

Amendment, Troxel v. Granville, 530 U.S. 57, 65

(2000), Hudacko’s right cannot be defined that broadly

because the custody order stripped him of almost all

his parental rights. Under the custody order,

Underhill had sole medical decision-making authority

over Minor with the exception of “any gender identity

related surgery,” which required Hudacko’s consent.

Hudacko cites no clearly established law under

similar facts. Instead, he contends that the “explicit

language” of the custody order provision clearly

establishes his right. But it was not clear the implant

procedure fell within Provision 7b’s “surgery”

exception in the custody order. See Carroll, 574 U.S.

at 16; see also Ashcroft v. al-Kidd, 563 U.S. 731, 743

(2011) (“Qualified immunity gives government

officials breathing room to make reasonable but

mistaken judgments about open legal questions.”).

And putting aside the custody order, Hudacko cites no

clearly established law creating a parental liberty

interest in precluding the procedure at issue here

when the other parent and minor child consent to it.

II. Fraudulent Concealment Claim

Under California law, one of the required

elements for fraudulent concealment is that the

defendant has “a duty to disclose” to the plaintiff.

Graham v. Bank of Am., N.A., 226 Cal. App. 4th 594,

606 (2014). Where the defendant is not in a fiduciary

relationship

with

the

plaintiff,

fraudulent

concealment is actionable only if there exists “some

other relationship between the plaintiff and defendant

in which a duty to disclose can arise.” LiMandri v.

Judkins, 52 Cal. App. 4th 326, 336–37 (1997).

Hudacko alleged no transaction or relationship

with any of the UCSF Individuals that could give rise

to a duty to disclose. See Graham, 226 Cal. App. 4th at

606. Orr was an attorney representing the UCSF

Center, and his “duty of undivided loyalty” was to his

client, not to Hudacko. See LiMandri, 52 Cal. App. 4th

at 338.

Hudacko alleges that Drs. Lee, Ehrensaft, and

Rosenthal (collectively, “UCSF Doctors”) owed him a

duty to disclose because the custody order named

UCSF explicitly as Minor’s medical provider and

granted them “special decision-making powers.” This

contention is unsupported because the custody order

does not grant UCSF any powers. Rather, it only

conditions Underhill’s authority to consent to hormone

therapy for Minor on UCSF recommending that

treatment. Thus, the custody order does not create a

“contractual agreement” between Hudacko and UCSF

that gives rise to a duty to disclose. 2 See LiMandri, 52

Cal. App. 4th at 337.

III. IIED Claim

Under California law, one of the elements of a

prima facie case of IIED is “outrageous conduct by the

defendant.” Little v. Stuyvesant Life Ins. Co., 67 Cal.

App. 3d 451, 461 (1977).

The custody order permits Minor “to pursue the

services provided by UCSF as to [Minor’s] gender

identity, and shall be permitted to commence hormone

therapy, if recommended by UCSF,” but Minor could

not obtain “any gender identity related surgery until

they are 18 years of age, absent written agreement

from both parties . . . or an order of the court.” As we

explained, the implant procedure could reasonably be

interpreted to be hormone therapy and not gender

identity related surgery. But even if the procedure

constituted “gender identity related surgery” under

the custody order, defendants’ alleged conduct is not

“so extreme as to exceed all bounds of that usually

tolerated in a civilized society.” See Yau v. Santa

Margarita Ford, Inc., 229 Cal. App. 4th 144, 160

(2014).

On appeal, Hudacko does not meaningfully argue

that he alleged outrageous conduct required for an

2 Hudacko

also alleges the UCSF Doctors owed him a general

duty of care under Cal. Civ. Code § 1714(a), which provides that

“everyone is responsible . . . for an injury occasioned to another

by his or her want of ordinary care or skill in the management of

his or her property or person.” That duty is limited, however, to

negligence cases—not fraudulent concealment, which is governed

by other provisions of California Civil Code. See 46 Cal. Jur. 3d

Negligence § 8; 34A Cal. Jur. 3d Fraud and Deceit § 38.

IIED claim. Instead, Hudacko contends that whether

the implant procedure “could reasonably [be]

interpreted to be” hormone therapy was a factual

dispute that should not have been decided at the

pleading stage. But the district court did not decide

that the implant procedure was in fact hormone

therapy under the custody order. Instead, the district

court only held that even if the implant procedure

could be regarded as gender identity related surgery,

the UCSF Individuals’ conduct cannot be outrageous

because the implant procedure “could reasonably [be]

interpreted to be” hormone therapy under the custody

order. Fuentes v. Perez, 66 Cal. App. 3d 163, 172 (1977)

(“It is for the court to determine, in the first instance,

whether the defendant’s conduct may reasonably be

regarded as so extreme and outrageous as to permit

recovery.”).

IV. Denial of Requests for Judicial Notice

Under Federal Rule of Evidence 201, a court may

take judicial notice of an “adjudicative fact” that is “not

subject to reasonable dispute because it: (1) is

generally known within the trial court’s territorial

jurisdiction; or (2) can be accurately and readily

determined from sources whose accuracy cannot

reasonably be questioned.” Fed. R. Evid. 201(a)–(b).

We review a district court’s decision to take judicial

notice for abuse of discretion, Ritter v. Hughes Aircraft

Co., 58 F.3d 454, 458 (9th Cir. 1995), and we hold that

the district court did not abuse its discretion here

denying Hudacko’s requests for judicial notice.

Hudacko contends that his requests were

examples of “state-funded involuntary human medical

experimentation” relevant to “demonstrate ‘the

plausibility of a conspiracy to use deception in the

practice

involuntary

human

medical

experimentation,’” but these studies are not relevant

here because they do not concern the “immediate

parties.” See Fed. R. Evid. 201 advisory committee’s

note to subdivision (a) for 1972 proposed rules.

AFFIRMED.

10a

Appendix B

Case 3:23-cv-05316-SI

Document 117

Filed: 11/25/24

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

EDWARD ALLYN

HUDACKO,

Plaintiff,

JANET YI MAN LEE, e al.,

Defendants.

Case No. 23-cv-05316-SI

ORDER RE:

MOTIONS TO

DISMISS

Re: Dkt. Nos. 96-100

On November 15, 2024, the Court held a hearing

on defendants’ motions to dismiss the Second

Amended Complaint (“SAC”). For the reasons set forth

below, the Court GRANTS the motions to dismiss all

causes of action.

BACKGROUND

Before the Court are several motions to dismiss

plaintiff’s Second Amended Complaint (“SAC”). Dkt.

Nos. 96-100. Plaintiff filed the SAC on August 30,

2024. Dkt. No. 90 (“SAC”) at 1. Plaintiff repeats many

allegations from the First Amended Complaint 1 (Dkt.

No. 19 (“FAC”)) in the SAC against the seven

remaining defendants in this case: Rosenthal

1 The

Court’s previous order contains a summary of the FAC

allegations. Dkt. No. 86.

11a

(University of California, San Francisco (“UCSF”)

medical doctor specializing in endocrinology), Lee

(UCSF medical doctor specializing in pediatric

endocrinology),

Ehrensaft

(UCSF

clinical

psychologist), Orr (Legal Director of Child and

Adolescent Gender Center at UCSF), Bigger (attorney

representing Underhill in the family law case),

Harkins (attorney representing Minor in the family

law case), and Underhill (plaintiff Hudacko’s ex-wife

and mother of Minor). SAC ¶¶ 21-27.

In 2020, plaintiff and his ex-wife Underhill

litigated a “high conflict” family law case in the Contra

Costa County Superior Court. SAC ¶ 71; SAC, Ex. A

at 3. A major disagreement in the case involved

Underhill’s belief “that [Minor] 2 suffered from the

psychological condition of ‘gender dysphoria’” and

wanted to “medically ‘transition’ [Minor]’s male

appearance to that of a female’s appearance.” SAC

¶ 71. Plaintiff “opposed any form of ‘gender affirming

care’” for Minor, including medical transition,

hormones, and/or puberty blockers. Id. ¶ 20. On

August 26, 2020, the Contra Costa County Superior

Court granted Underhill legal custody of Minor and

authorized Underhill to “make decisions on her own

for [Minor’s] health, education and welfare without

Father’s consent.” SAC, Ex. A at 6. The custody order

includes two provisions pertaining to gender identity

related medical procedures. SAC ¶ 76. Section 7a

states: “[Minor] shall be permitted to pursue the

services provided by UCSF as to the Minor Child’s

2 “Minor” refers to Hudacko and Underhill’s oldest child who was

a minor at the time of the events. The Court continues to use

“Minor” for consistency with previous orders.

12a

gender identity, and shall be permitted to commence

hormone therapy, if recommended by UCSF.” Id.

Section 7b states “[Minor] will not be permitted to

undergo any gender identity related surgery until they

are 18 years of age, absent a written agreement by

both parties, Christine Hudacko [Underhill] and

Edward Hudacko, or an order of the court.” Id. ¶ 77.

Plaintiff alleges defendants violated Section 7b on

August 4, 2021, when Minor underwent a Supprelin

Implant procedure, listed on a bill as a “surgery.” 3 Id.

¶ 104; SAC, Ex. D at 16.

While the SAC involves the same general events

as the FAC, the SAC includes additional allegations.

The new allegations center around the World

Professional Association for Transgender Health

(“WPATH”), 4 and what plaintiff refers to as the “True

WPATH Mission,” the “Playbook,” and the “Scheme.”

SAC ¶¶ 34-35. Plaintiff alleges Rosenthal, Ehrensaft,

and Lee are all members of WPATH, and Rosenthal is

an elected member of WPATH’s Board of Directors. Id.

¶¶ 6, 46, 48.

Plaintiff further alleges:

[t]he TRUE WPATH MISSION is at least

three-fold: First, by overstating the alleged

risks of “untreated” gender dysphoria or

gender related distress, and maximizing the

profit of gender clinics by maximizing the

3 The

Court’s previous order said whether the implant was

“gender identity related surgery” or “hormone therapy” will be

determined on the merits, not at the pleadings stage. Dkt. No. 86

at 7.

4 WPATH is not named as a defendant.

13a

number of people – especially children and

adolescents – who seek “gender affirming

care.” Second, by falsely proclaiming

psychological benefits and fraudulently

concealing the known and suspected physical

and mental harms caused by these

procedures, maximize the number of subjects

unwittingly enrolled into experimental

protocols purportedly studying their longterm effects. Third, to create a population of

young adults who are chronologically over 18

(thus legally able to consent to sex), but who

physically, mentally and emotionally remain

child-like.

Id. ¶ 45. Plaintiff alleges the members of WPATH

advance the “True WPATH Mission” through the

“Playbook” which includes “dishonest and/or

misleading contentions and/or misrepresentations of

fact, regarding the purported safety and efficacy of

employing

GENDER-AFFIRMING

CARE

children.” Id. ¶ 35. Plaintiff alleges all defendants

were part of a “Scheme” consistent with the “Playbook”

to perform surgery on Minor without Hudacko’s

consent. Id. ¶ 39. Plaintiff alleges defendants were

aware of Section 7b of the custody order and agreed to

conceal the plan from Hudacko as part of the

“Scheme.” Id.

The SAC also alleges plaintiff obtained a

recording of a continuing legal education seminar

titled “Gender and Transgender Issues” featuring

defendant Orr and attended by defendant Harkins. Id.

¶ 58. Plaintiff alleges the seminar was intended to

advance the “True WPATH Mission” by teaching

14a

attorneys the “Playbook” so that the parent opposing

a minor’s gender transition “always loses.” Id. ¶¶ 59,

66.

The FAC included seven causes of action. Dkt. No.

19 at 1. The Court’s prior order dismissed all claims

against the Regents of the University of California and

the UCSF affiliated defendants (Orr, Lee, Ehrensaft,

and Rosenthal) in their official capacities based on

Eleventh Amendment immunity. Dkt. No. 86 at 29.

The Court dismissed the Fourteenth Amendment

procedural due process claim, medical battery claim,

and intentional infliction of emotional distress claim

without leave to amend as to all defendants for failure

to state a claim. Id. The Court dismissed the fraud by

concealment claim and negligent infliction of

emotional distress (NIED) claim without leave to

amend as to Harkins, Bigger, and Orr, but with leave

to amend as to Underhill, Lee, Ehrensaft, and

Rosenthal. Id. The motion to dismiss the § 1983

substantive due process claim was denied as to Orr,

Lee, Ehrensaft, and Rosenthal in their individual

capacities, but the Court noted these defendants could

raise a qualified immunity defense in subsequent

proceedings. Id. The § 1983 substantive due process

claim was dismissed with leave to amend as to

Harkins, Bigger, and Underhill on the basis they were

not de facto state actors. Id.

The SAC includes three causes of action: (1) the

substantive due process claim under 42 U.S.C. § 1983,

(2) fraud by concealment, and (3) NIED. SAC at 24-28.

The present motions cumulatively argue that all

causes of action should be dismissed as to all

15a

defendants for lack of jurisdiction or failure to state a

claim. Dkt. Nos. 96-100.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a

district court must dismiss a complaint if it fails to

state a claim upon which relief can be granted. To

survive a Rule 12(b)(6) motion to dismiss, the plaintiff

must allege “enough facts to state a claim to relief that

is plausible on its face.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007). This “facial plausibility”

standard requires the plaintiff to allege facts that add

up to “more than a sheer possibility that a defendant

has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009). While courts do not require “heightened

fact pleading of specifics,” a plaintiff must allege facts

sufficient to “raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555, 570.

In deciding whether the plaintiff has stated a

claim upon which relief can be granted, the court must

assume that the plaintiff’s allegations are true and

must draw all reasonable inferences in the plaintiff’s

favor. Usher v. City of Los Angeles, 828 F.2d 556, 561

(9th Cir. 1987). However, the court is not required to

accept as true “allegations that are merely conclusory,

unwarranted deductions of fact, or unreasonable

inferences.” In re Gilead Sciences Sec. Litig., 536 F.3d

1049, 1055 (9th Cir. 2008) (citation and internal

quotation marks omitted). A pleading must contain

allegations that have “factual content that allows the

court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Iqbal,

556 U.S. at 678. “The plausibility standard is not akin

16a

to a ‘probability requirement,’ but it asks for more

than a sheer possibility that a defendant has acted

unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly,

555 U.S. at 556).

Dismissal under Rule 12(b)(6) is also proper when

the complaint “lacks a cognizable legal theory” or “fails

to allege sufficient facts to support a cognizable legal

theory.” Somers v. Apple, Inc., 729 F.3d 953, 959 (9th

Cir. 2013). Exhibits attached to the complaint,

documents incorporated by reference, and matters

properly subject to judicial notice are considered when

reviewing the sufficiency of a complaint. In re NVIDIA

Corp. Security Litigation, 768 F.3d 1046, 1051 (9th

Cir. 2014). If the Court dismisses the complaint, it

must then decide whether to grant leave to amend.

The Ninth Circuit has “repeatedly held that a district

court should grant leave to amend . . . unless it

determines that the pleading could not possibly be

cured by the allegation of other facts.” Lopez v. Smith,

203 F.3d 1122, 1130 (9th Cir. 2000) (citations and

internal quotation marks omitted).

DISCUSSION

Requests for Judicial Notice

Plaintiff requests judicial notice of facts related to

(1) the

Tuskegee

syphilis

study,

(2) Project

MKULTRA, (3) the National Institutes of Health

Sexually Transmitted Disease experiments in

Guatemala, (4) the practice of lobotomy, (5) the Leo

Stanley

experiments,

(6) the

Nazi

medical

experiments, (7) defendant Rosenthal’s declaration in

Boe v. Marshall, (8) Alabama’s reply brief in Boe v.

Marshall, (9) Alabama’s amicus curiae brief to the

17a

U.S. Supreme Court in L.W. v. Skrmetti, and

(10) Harkin’s report in family court. Dkt. No. 105-1.

UCSF defendants Ehrensaft, Rosenthal, and Lee

request judicial notice of (1) the fact that Minor is no

longer a minor, and (2) the state court custody order,

available at Docket Number 90, SAC, Ex. A 4-9. Dkt.

No. 101-1 at 1-2.

Under Federal Rule of Evidence 201, a “court may

judicially notice a fact that is not subject to reasonable

dispute because it: (1) is generally known within the

trial court’s territorial jurisdiction; or (2) can be

accurately and readily determined from sources whose

accuracy cannot reasonably be questioned.” Fed. R.

Evid. 201(b). Rule 201 applies to adjudicative facts and

not legislative facts. According to the Advisory

Committee, adjudicative facts “are simply the facts of

the particular case,” in other words, the “facts

concerning the immediate parties—who did what,

where, when, how and with what motive or intent.”

See Fed. R. Evid. 201 (note to subdivision (a) for 1972

proposed rules). On the other hand, legislative facts

“are those which have relevance to legal reasoning and

the lawmaking process, whether in the formulation of

a legal principle or ruling by a judge or court or in the

enactment of a legislative body.” See id.

Plaintiff

Requests

1-6

Medical Experiments)

(Historical

Plaintiff requests judicial notice of various

historical medical experiments and studies. Dkt. No.

105-1 at 2-5. Plaintiff claims the relevance of such

studies is to show “the plausibility of a conspiracy to

use deception in the practice of involuntary human

18a

medical experimentation in the United States.” Id.

The Court DENIES the request for judicial notice of

(1) the Tuskegee syphilis study, (2) MKULTRA, (3) the

NIH STD experiments in Guatemala, (4) the practice

of lobotomy, (5) the Leo Stanley experiments, (6) the

Nazi medical experiments pursuant to Rule 201

because the fact that these studies exist does not

concern the “immediate parties” of this case. Further,

five of the six sources cited by plaintiff are Wikipedia

pages, not “sources whose accuracy cannot reasonably

be questioned.” See Fed. R. Evid. 201(b)(2).

Plaintiff Requests 7-9 (Documents From

Boe v. Marshall and L.W. v. Skrmetti)

Plaintiff seeks judicial notice of legal papers filed

in two cases from other jurisdictions “to demonstrate

the existence of material factual disputes regarding

the purported safety and efficacy of puberty blockers.”

Dkt. No. 105-1 at 6-7. The Court does not need to take

judicial notice of legal arguments filed in other courts.

The Court DENIES the request for judicial notice of

(7) defendant Rosenthal’s declaration in Boe v.

Marshall, (8) Alabama’s reply brief in Boe v. Marshall,

and (9) Alabama’s amicus curiae brief to the U.S.

Supreme Court as these documents are irrelevant to

the current parties and proceeding.

Plaintiff Request 10 (Harkins Report)

Plaintiff requests judicial notice of defendant

Harkin’s report as minors’ counsel not for its truth, but

to document what Harkins said to the family court.

Dkt. No. 105-1 at 7. Harkins objects, arguing the

information is “not relevant to the instant proceeding”

and “plaintiff’s opposition makes abundantly clear he

19a

is disputing the veracity of claims made by Harkins in

the report, which necessarily requires the Court to

assume the truth of the statements made in the brief.”

Dkt. No. 108 at 6. The Court GRANTS the request for

judicial notice of Harkin’s report but does not consider

the content of the report particularly illuminating or

helpful to plaintiff’s claims.

Rosenthal, Lee, Ehrensaft Requests 1-2

(Minor’s Age, Custody Order)

The UCSF defendants request judicial notice of

(1) the fact that Minor is no longer a minor, and (2) the

state court’s custody order, available at Dkt. No. 90,

SAC, Ex. A 4-9. Dkt. No. 101-1 at 1-2. The Court

previously granted judicial notice of these facts. Dkt.

No. 86 at 7. The Court GRANTS both requests.

II. Whether

Applies

the

Rooker-Feldman

Doctrine

Defendants Rosenthal, Lee, and Ehrensaft assert

the “Court should refuse to hear plaintiff’s claims as it

is an improper de facto appeal of the state court

custody order.” Dkt. No. 100 at 10. Defendant Orr

likewise argues “success on the merits would require

the parties to relitigate the meaning of that custody

order,” and the “Second Amended Complaint is in

essence a de facto appeal of the custody order, and

therefore should be dismissed . . . pursuant to the

Rooker-Feldman Doctrine.” Dkt. No. 99 at 8.

Federal district courts, as courts of original

jurisdiction, may not review the final determinations

of state courts. See D.C. Court of Appeals v. Feldman,

460 U.S. 462, 482-86 (1983); Rooker v. Fidelity Trust

Co., 263 U.S. 413, 415-16 (1923) (holding district

20a

courts may not exercise appellate jurisdiction over

state courts). If a plaintiff does not assert legal error

on the part of the state court, the plaintiff is not

bringing a “de facto appeal” prohibited by RookerFeldman. See Kougasian v. TMSL, Inc., 359 F.3d 1136,

1143 (9th Cir. 2004). The Court concludes that the

Rooker-Feldman doctrine would prohibit challenges to

the validity of the underlying custody order, to the

extent such challenges are made. See id. However, the

Court disagrees with defendants that the Court must

decline to hear plaintiff’s complaint. While the custody

order is relevant to the merits of the case, the Court is

not persuaded that “adjudication of the federal claims

would undercut the state ruling” because plaintiff is

not requesting review or modification of the custody

order, and Minor has since turned 18. See Bianchi v.

Rylaarsdam, 334 F.3d 895, 898 (9th Cir. 2003); Dkt.

No. 86 at 7.

Plaintiff’s argument here is unlike other cases

dismissed pursuant to Rooker-Feldman, where the

plaintiff’s claims would undercut a state custody

order. See, e.g., Tali v. Liao, No. 18-0330, 2018 WL

5816171, at *4 (N.D. Cal. Nov. 5, 2018) (dismissing

plaintiff’s claim that defendants “plotted against him

to take his child away” because “in making these

allegations against Defendants, [plaintiff] is actually

attacking the state custody decision” in violation of the

Rooker-Feldman doctrine); Nemcik v. Mills, No. 160322, 2016 WL 4364917, at *6 (N.D. Cal. Aug. 16,

2016) (holding plaintiff’s claim was barred by the

Rooker-Feldman doctrine because the basis of

plaintiff’s action was to “re-calculate her [state] child

support orders”).

21a

For the reasons above, the Court DENIES

defendants’ motion to dismiss the case under the

Rooker-Feldman doctrine.

III. Whether the § 1983 Claim Should be

Dismissed For Failure to State a Claim

(First Cause of Action)

Plaintiff brings a 42 U.S.C. § 1983 claim against

Rosenthal, Lee, Ehrensaft, and Orr (as alleged state

actors in their individual capacity) and Bigger,

Harkins, and Underhill (as alleged de facto state

actors in their individual capacity). 5 SAC at 24. “To

state a claim under § 1983, a plaintiff must allege the

violation of a right secured by the Constitution and

laws of the United States, and must show that the

alleged deprivation was committed by a person acting

under color of state law.” West v. Atkins, 487 U.S. 42,

48 (1988). Dismissal of a § 1983 claim on a Rule

12(b)(6) motion “is proper if the complaint is devoid of

factual allegations that give rise to a plausible

inference of either element.” Naffe v. Frey, 789 F.3d

1030, 1036 (9th Cir. 2015). “Section 1983 does not

confer rights, but instead allows individuals to enforce

rights contained in the United States Constitution and

defined by federal law.” Vinson v. Thomas, 288 F.3d

1145, 1155 (9th Cir. 2002).

Whether Defendants are State Actors

Only a state actor can be liable under 42 U.S.C.

§ 1983. See American Mfrs. Mut. Ins. Co. v. Sullivan,

526 U.S. 40, 50 (1999) (“Like the state-action

5 Plaintiff’s caption mistakenly labels Orr and omits defendant

Bigger, but the Court addresses the substance of the claims

against these defendants. See SAC at 24.

22a

requirement of the Fourteenth Amendment, the

under-color-of-state-law element of § 1983 excludes

from its reach “‘merely private conduct, no matter how

discriminatory or wrongful’,” Blum v. Yaretsky, 457

U.S. 991, 1002 (1982) (quoting Shelley v. Kraemer, 334

U.S. 1, 13 (1948)).”).

Whether Rosenthal, Ehrensaft, Lee,

and Orr are State Actors

The Court’s prior order found plaintiff intended to

sue Rosenthal, Ehrensaft, Lee, and Orr (the “UCSF

defendants”) in both their individual and official

capacities. Dkt. No. 86 at 14. The Court previously

dismissed “[a]ll claims against the individual

defendants [including Rosenthal, Lee, Ehrensaft, and

Orr] in their official capacities . . . based on Eleventh

Amendment immunity” but permitted the claim to

proceed against Rosenthal, Lee, Ehrensaft, and Orr in

their individual capacity. Id.

Although it is undisputed that the individual

UCSF defendants are state actors, Rosenthal,

Ehrensaft, and Lee move to dismiss the § 1983 claim

because “[p]laintiff only asserts claims against the

medical defendants in their official capacities and is

silent as to any allegation against them in their

individual capacities.” Dkt. No. 100 at 19. Orr likewise

moves to dismiss the claim because the SAC “does not

contain any allegations that Defendant Orr is being

sued in his individual capacity.” Dkt. No. 99 at 1 n. 1.

The Court understands the defendants to be arguing

that plaintiff has failed to allege defendants are state

actors in their individual capacity because the SAC

allegations only arise from defendants’ official roles at

23a

UCSF. However, defendants’ characterization is

incorrect, because “‘acting in their official capacities’ is

best understood as a reference to the capacity in which

the state officer is sued, not the capacity in which the

officer inflicts the alleged injury.” Hafer v. Melo, 502

U.S. 21, 26 (1991). “[T]o establish personal liability in

a § 1983 action, it is enough to show that the official,

acting under color of state law, caused the deprivation

of a federal right.” Id. at 25 (citations and internal

quotation marks omitted) (emphasis in original).

The Court concludes the UCSF defendants are

state actors in their individual capacity for purposes of

§ 1983. See id.; see also Alden v. Maine, 527 U.S. 706,

757 (1999) (“Even a suit for money damages may be

prosecuted against a state officer in his individual

capacity for unconstitutional or wrongful conduct

fairly attributable to the officer himself, so long as the

relief is sought not from the state treasury but from

the officer personally.”). The Eleventh Amendment

does not bar a suit against these defendants in their

individual capacities. See Hafer, 502 U.S. at 31

(“Insofar as respondents seek damages against [the

state officer] personally, the Eleventh Amendment

does not restrict their ability to sue in federal court.”).

ii.

Whether Harkins is a State Actor

Plaintiff alleges “Harkins is a state actor, or in the

alternative, a de facto state actor.” SAC ¶ 120. Plaintiff

argues Harkins is a state actor because Harkins was

appointed by the California state judiciary to act as

“minor’s counsel” pursuant to Family Code § 3151, and

neither Hudacko or Underhill made such a request. Id.

¶ 121. Plaintiff argues “[a]s a result of Harkins’

24a

assignment by the California state judiciary, Harkins’

actions are those of the State of California.” Id.

Plaintiff cites no legal authority to support the

argument that an attorney appointed by the state to

represent a minor is a state actor. See id.

Harkins argues he is not a state actor because he

is a “private attorney appointed by a court to act as

counsel for a minor in child custody proceedings,”

citing the Court’s previous order and Kirtley v. Rainey,

326 F.3d 1088 1093-1096 (9th Cir. 2003). Dkt. No. 98

at 6. In Kirtley, the Ninth Circuit found the actions of

“a state-appointed guardian ad litem” were not “state

action” for purposes of § 1983. Kirtley, 326 F.3d at

1091-96. The Ninth Circuit held “[e]ven if [the stateappointed guardian ad litem] committed the

fraudulent or conspiratorial acts of which she is

accused, the actions simply are not fairly attributable

to the state.” Id. at 1096. The Court finds the case at

hand is sufficiently similar to Kirtley to conclude

Harkins is not a state actor for purposes of § 1983.

The Court addresses whether Harkins is a de

facto state actor below.

Whether Defendants are De Facto State

Actors

The parties dispute whether Harkins, Bigger, and

Underhill are de facto state actors, such that a § 1983

claim can be brought against them. The Supreme

Court “has articulated four tests for determining

whether a private individual’s actions amount to state

action: (1) the public function test; (2) the joint action

test; (3) the state compulsion test; and (4) the

governmental nexus test.” Franklin v. Fox, 312 F.3d

25a

423, 445 (9th Cir. 2002). Plaintiff alleges that Harkins,

Bigger, and Underhill are de facto state actors under

the joint action test. See SAC ¶¶ 122, 130, 141.

“Under the joint action test, courts examine

whether state officials and private parties have acted

in concert in effecting a particular deprivation of

constitutional rights.” Franklin v. Fox, 312 F.3d at 445

(internal quotation marks and citations omitted). “The

test focuses on whether the state has so far insinuated

itself into a position of interdependence with the

private actor that it must be recognized as a joint

participant in the challenged activity.” Id. (internal

quotation marks and citations omitted). “Joint action

therefore requires a substantial degree of cooperative

action.” Collins v. Womancare, 878 F.2d 1145, 1154

(9th Cir. 1989). A plaintiff may demonstrate joint

action by showing the existence of a conspiracy or that

the “private party is a willful participant in joint

action with the State or its agents.” Id. (internal

quotation marks and citations omitted). “To prove a

conspiracy between the state and private parties

under section 1983, [plaintiff] must show an

agreement or meeting of the minds to violate

constitutional rights.” United Steelworkers of America

v. Phelps Dodge Corp., 865 F.2d 1539, 1540-51 (9th

Cir. 1989) (internal quotation marks and citations

omitted); see also Franklin, 312 F.3d at 445 (“To be

liable as a co-conspirator, a private defendant must

share with the public entity the goal of violating a

plaintiff’s constitutional rights.”).

26a

Whether Bigger is a De Facto State

Actor

The Court previously dismissed the substantive

due process claim against Bigger, holding he was not

a de facto state actor. Dkt. No. 86 at 12. However, the

Court granted leave to amend because plaintiff filed

his amended complaint pro se. 6 Id. Plaintiff continues

to allege Bigger is a de facto state actor under the joint

action test. SAC ¶ 26. Defendant Bigger moves to

dismiss the claim, arguing he is not named in any of

the causes of action and plaintiff does not allege

details of a claim against him in the supportive

paragraphs under each cause of action. 7 Dkt. No. 96 at

5. In the alternative, Bigger argues he is not a de facto

state actor. Id. at 6. Bigger argues he was simply

Underhill’s attorney and the SAC lacks allegations

showing he “and any state actor acted in concert or had

any plan related to the medical care of [Minor].” Dkt.

No. 110 at 4.

The Court agrees the SAC has not alleged

sufficient facts to allege Bigger is a de facto state actor.

Plaintiff alleges Bigger is:

a licensed California attorney and at all

relevant times the attorney representing

Underhill in the FAMILY LAW CASE, who,

acting as de facto agent of WPATH

6 Plaintiff retained counsel to file the present complaint.

7 Plaintiff does not list defendant Bigger in the § 1983 claim—an

omission plaintiff’s opposition notes was accidental as it is

plaintiff’s “intention to pursue Bigger as well as the other named

Defendants.” Dkt. No. 105 at 6. The Court will resolve the

question on its merits.

27a

DEFENDANTS [Rosenthal, Ehrensaft, and

Lee] and in conformity with the TRUE

WPATH MISSION, participated in a

conspiracy with the other Defendants and a

SCHEME by accepting money in exchange

for advising Underhill according to the

PLAYBOOK, coordinating the Supprelin

surgery on [Minor] without the consent of

Plaintiff, rather than advising his client

according to the law, the constitution, or the

NO SURGERY INJUCTION. Defendant

Bigger participated in the conspiracy with

the other defendants to, help deceive

Underhill into the believing that GENDER

AFFIRMING CARE is safe and effective for

her son; by falsely telling Underhill that

unconsented to gender identity related

surgery on a minor was legal; by concealing

the fact that Underhill was being tricked

consenting to the Minor Child’s participation

in INVOLUNTARY HUMAN MEDICAL

EXPERIMENTATION; and by concealing

the SCHEME from Hudacko.

SAC ¶ 25. The SAC further alleges Bigger “financially

benefited from the Supprelin for [his] billed time in

‘resolving’ the issue to circumvent Hudacko’s

consent… Underhill, UCSF, Rosenthal, Ehrensaft,

Bigger and Harkins in a ‘meeting of the minds’ all

worked in concert with a singular goal – namely to

have the Supprelin implant surgery occur, be covered

by insurance, and be hidden from Hudacko.” Id.

¶¶ 107-108.

28a

Plaintiff attempts to portray Bigger as an actor in

a grander, WPATH conspiracy. But Plaintiff’s

allegations

involving

WPATH

resemble

the

allegations dismissed by the Supreme Court in Iqbal:

Respondent pleads that petitioners ‘knew of,

condoned, and willfully and maliciously

agreed to subject [respondent]’ to harsh

conditions of confinement ‘as a matter of

policy, solely on account of [respondent’s]

religion, race, and/or national origin and for

no legitimate penological interest. The

complaint alleges that Ashcroft was the

‘principal architect’ of this invidious policy,

and that Mueller was ‘instrumental’ in

adopting and executing it. These bare

assertions, much like the pleading of

conspiracy in Twombly, amount to nothing

more than a ‘formulaic recitation of the

elements’ of a constitutional discrimination

claim. As such, the allegations are conclusory

and not entitled to be assumed true. To be

clear, we do not reject these bald allegations

on the ground that they are unrealistic or

nonsensical. . . . It is the conclusory nature of

respondent’s allegations, rather than their

extravagantly

fanciful

nature,

that

disentitles them to the presumption of truth.

Iqbal, 556 U.S. at 680-681 (internal citations omitted).

Here, the SAC alleges a conspiracy between the

defendants, but the allegations are likewise conclusory

in nature. See, e.g., SAC ¶¶ 107-108. Thus, plaintiff’s

allegations asserting conspiracy between the

defendants suffer from the same deficiencies as

29a

plaintiff’s allegations in the FAC; that is, they are

conclusory allegations devoid of specific facts, such

that this Court need not accept them as true. See

Iqbal, 556 U.S. at 680-681; In re Gilead Sciences Sec.

Litig., 536 F.3d at 1055.

Under Iqbal, the Court next considers “the factual

allegations in respondent’s complaint to determine if

they plausibly suggest an entitlement to relief.” Iqbal,

556 U.S. at 682. Here, plaintiff’s claims do not. The

factual allegations include assertions that Bigger

accepted money for legal work and gave his client legal

advice. See SAC ¶¶ 107, 129. The Court finds these

allegations have reasonable explanations, such as the

existence of a legitimate attorney-client relationship.

See Iqbal, 556 U.S. at 681-682 (finding racial

discrimination was “not a plausible conclusion” for

why respondent was arrested because there were

“more likely explanations” for the arrest, including a

“legitimate policy” by law enforcement). Additionally,

the factual allegations do not establish “an agreement

or meeting of the minds to violate constitutional

rights” as required to find joint action. See Phelps

Dodge Corp., 865 F.2d at 1540-51; see also Franklin,

312 F.3d at 445. Though plaintiff uses the term

“meeting of the minds,” SAC ¶ 108, the assertions

made are a “formulaic recitation of the elements” and

“not entitled to be assumed true.” See Iqbal, 556 U.S.

at 681-682.

Accordingly, the Court finds Bigger is not a de

facto state actor for purposes of § 1983. The § 1983

claim is dismissed as to Bigger without leave to

amend.

ii.

30a

Whether Harkins is a De Facto State

Actor

The Court previously dismissed federal claims

against Harkins, minor’s counsel in the family court

action, finding he is not a de facto state actor. Dkt. No.

86 at 12. In the SAC, plaintiff continues to allege

Harkins was a de facto state actor. Specifically,

(a) Harkins was aware of the NO SURGERY

INJUNCTION; (b) Harkins was aware of

Hudacko’s opposition to puberty blockers as

well as surgical procedures, at the latest on

10/21/2020; (c) Harkins was intimately

involved in the joint effort of REGENTS, Orr,

Rosenthal, Ehrensaft, Underhill and Bigger

to solve the insurance problem and consent

issue. [See Exh.”G”]; (d) Harkins excluded

Hudacko from the discussion and failed to

alert Hudacko of the decision unilaterally

being made among the Defendants; (e)

Harkins had an email exchange with

Underhill on May 11, 2021 and call with

“counsel.” Upon information and belief, that

“counsel” either was Orr or Bigger, as

Hudacko did not have counsel on or about

May 13, 2021. [See Exh. “F”] Upon

information and belief, the “conference call”

included Harkins, and Orr and Bigger and

included a discussion and agreement to

engage in the SCHEME.

SAC ¶ 122.

While plaintiff uses the labels “SCHEME” and

“joint effort” the SAC does not include specific factual

31a

allegations to support those conclusions. See SAC

¶¶ 131-152. Additionally, many of plaintiff’s

allegations against defendant Harkins do not need to

be accepted as true under Iqbal for reasons explained

supra. For example, many of the allegations made

against Bigger are also made against Harkins, such as

“Harkins financially benefited from the Supprelin for

[his] billed time in ‘resolving’ the issue,” and “Harkins

in a ‘meeting of the minds’ [with other defendants] all

worked in concert with a singular goal—namely to

have the Supprelin implant surgery occur, be covered

by insurance, and be hidden from Hudacko.” SAC

¶¶ 107-108. The Court does not need to assume as true

these conclusory allegations.

The remaining factual allegations against

Harkins include that Harkins knew about Section 7b

of the custody order, knew Hudacko opposed puberty

blockers and surgical procedures, excluded Hudacko

from the decision, and had email exchanges and calls

with other defendants. See SAC ¶ 122. Plaintiff does

not allege Harkins, as counsel for Minor in family

court, had a duty to include Hudacko in discussions

taking place between Harkins and other defendants,

or otherwise consider Hudacko’s perspective. See SAC

generally. The Court finds Harkins is not a de facto

state actor because plaintiff’s factual allegations do

not “show an agreement or meeting of the minds to

violate constitutional rights” as required to “prove a

conspiracy between the state and private parties

under section 1983.” See Phelps Dodge Corp., 865 F.2d

at 1540. Bare allegations of a conspiracy between the

defendants to violate plaintiff’s constitutional rights

are insufficient. See Iqbal, 556 U.S. at 680-81. The

32a

SAC has not cured the deficiencies in this argument in

the FAC. The Court finds Harkins is not a de facto

state actor and dismisses the § 1983 cause of action

against him, without leave to amend.

iii. Whether Underhill is a De Facto

State Actor

The Court previously dismissed federal claims

against Underhill, finding she is not a de facto state

actor. Dkt. No. 86 at 12. However, the Court granted

leave to amend because plaintiff filed his complaint

pro se. Id.

Plaintiff alleges Underhill “is the mother of

[Minor] and Hudacko’s ex-wife and, at all times favors

attempts to do the impossible -namely ‘transition’

[Minor] from being a boy into being a girl, falsely

believing that such a thing was possible, and falsely

believing that GENDER AFFIRMING CARE is safe &

effective, and agreed to and coordinated with the other

Defendants to allow the Supprelin surgery on [Minor]

without the consent of Plaintiff.” SAC ¶ 27. Plaintiff’s

opposition alleges:

[d]efendants wrote down in medical progress

notes how Underhill was working with her

counsel, Harkins, and [Orr] to achieve

‘resolution.’ Drawing reasonable inferences

from this circumstantial and direct evidence

of discussions, and alleging a meeting of the

minds on a common objective, that was in

fact achieved, one must ask resolution of

what? The only reasonable inference is not

‘resolution’ of the family law case but

‘resolution’ of the fact that Plaintiff did not

33a

consent to their ‘objective’ of which some

details are only in the possession of

Defendants.

Dkt. No. 101 at 8. Underhill moves to dismiss, arguing

plaintiff “has made only conclusory allegations that do

not meet the criteria of the joint action test.” Dkt. No.

97 at 6.

The Court agrees that plaintiff’s allegations are

too conclusory to establish that Underhill is a de facto

state actor under the joint action test. Plaintiff’s

allegations as to defendant Underhill suffer from the

same shortcomings as the allegations against Bigger

and Harkins. As explained supra, the Court finds that

the allegations of a conspiracy or “meeting of the

minds” between defendants to violate plaintiff’s

constitutional rights lack sufficient facts. The Court is

not required to assume such conclusory allegations are

true. See In re Gilead Sciences Sec. Litig., 536 F.3d at

1055; Iqbal, 556 U.S. at 680-81.

Additionally, the new pleadings in the SAC

primarily allege the other defendants willfully

“deceive[d]” Underhill into “believing that GENDER

AFFIRMING CARE is safe and effective so she would

consent on behalf of Minor.” SAC ¶¶ 21-26, 124.

Plaintiff also alleges the other defendants “are all

willful participants in the plan to conceal from

Underhill and the public at large the experimental

nature of GENDER AFFIRMING CARE in general,

and of the Supprelin Implant surgery in particular.”

Id. ¶ 125. Such allegations conflict with finding joint

action between Underhill and other defendants

because the allegations suggest Underhill was not a

34a

“willful participant” and did not have a “meeting of the

minds” with the other defendants. See Collins, 878

F.2d at 1154; Phelps Dodge Corp., 865 F.2d at 1540.

The Court concludes Underhill is not a de facto state

actor for § 1983 purposes. This claim against

Underhill is therefore dismissed, without leave to

amend.

Whether Qualified Immunity Shields

the State Actors

The Court previously concluded the UCSF

defendants (Ehrensaft, Rosenthal, Lee, and Orr) could

argue for qualified immunity in subsequent

proceedings. Dkt. No. 86 at 30.

The defense of qualified immunity protects

“government officials . . . 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.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The

rule of “qualified immunity protects ‘all but the plainly

incompetent or those who knowingly violate the law.’”

Saucier v. Katz, 533 U.S. 194, 202 (2001) (quoting

Malley v. Briggs, 475 U.S. 335, 341 (1986)). A court

considering a claim of qualified immunity must

determine whether the plaintiff has alleged the

deprivation of an actual constitutional right and

whether such right was clearly established so that it

would be clear to a reasonable officer that his conduct

was unlawful in the situation he confronted. See

Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citing

Saucier, 533 U.S. at 201). A court may exercise its

discretion in deciding which prong to address first, in

35a

light of the particular circumstances of each case. Id.

at 236.

The previous Court order found it was premature

to determine whether a violation of the custody order,

if proven, would rise to the level of a violation of

plaintiff’s constitutional rights. Dkt. No. 86 at 15. Due

to the relative novelty of the facts at hand, the Court’s

discussion therefore begins with the second prong. See

Pearson, 555 U.S. at 236. Under the second prong of

the qualified immunity analysis, “[a] right is clearly

established only if its contours are sufficiently clear

that ‘a reasonable official would understand that what

he is doing violates that right.’ In other words,

‘existing precedent must have placed the statutory or

constitutional question beyond debate.’” Carroll v.

Carman, 574 U.S. 13, 16 (2014) (citations omitted).

The inquiry of whether a constitutional right was

clearly established must be undertaken in “the specific

context of the case, not as a broad general proposition.”

Saucier, 533 U.S. at 201.

The parties do not dispute that the rights of

parents to make child-rearing decisions is a liberty

interest under the Fourteenth Amendment, but the

relevance of that right to the “specific context” of this

case is disputed. See Saucier, 533 U.S. at 201. In his

complaint, plaintiff does not precisely frame the

contours of the constitutional right he asserts.

Plaintiff acknowledges the custody order “stripp[ed]

Hudacko of most of his fundamental constitutional

parental rights” when it awarded custody of Minor to

Underhill. SAC ¶ 72. Plaintiff concedes Underhill had

medical decision-making authority over Minor. Id.

However, plaintiff alleges Section 7b of the custody

36a

order was an exception, and prohibited “any gender

identity related surgery” without both Hudacko and

Underhill’s consent until Minor was 18. Id. In essence,

plaintiff’s parental rights were limited to a right to

veto a particular category of medical procedures before

Minor reached adulthood.

The question for the Court is therefore whether a

parental right to veto certain medical procedures—

when already deprived of general medical-decision

making power—has been clearly established as a

constitutional right. Without determining that such a

right exists, the Court holds that this right has not

been clearly established.

The Court finds this case distinguishable from the

cases plaintiff cites in support of his position that his

constitutional rights were clearly violated. In Wallis v.

Spencer, 202 F.3d 1126, 1134-35 (9th Cir. 2000),

detectives removed young children from their parent’s

custody, took the children to a hospital, and ordered

an intrusive examination of both children for evidence

of sexual abuse without their parents’ knowledge or

consent and without an order of the court authorizing

such intrusive examinations. Wallis is a vastly

different factual posture than the case at hand, where

Underhill—who had near complete authority to make

medical decisions on behalf of Minor—consented to the

treatments at UCSF, and such treatment was

arguably permitted by a court order. SAC ¶¶ 72, 76.

Wallis cannot be said to “clearly establish” the right of

one parent to veto a medical procedure that the other

parent and minor both consent to, because Wallis

addressed a scenario where state detectives seized

children and had them examined for investigative

37a

purposes. See id. Parham v. J.R., 442 U.S. 584, 602

(1979) also addressed a different issue than the case

at hand. The issue in Parham was “what process is

constitutionally due a minor child whose parents or

guardian seek state administered institutional mental

health care for the child and specifically whether an

adversary proceeding is required prior to or after the

commitment.” Parham, 442 U.S. at 587. The case at

hand does not involve institutionalized mental health

care, or questions related to the due process owed to a

minor defendant. See id.

At the November 15, 2024 motion hearing,

plaintiff’s counsel cited an additional case, Pope v.

Cnty. of San Diego, 719 F. Supp. 3d 1076 (S.D. Cal.

2024). The Court’s understanding is that plaintiff

identified this case for its explanation of two rights

recognized by the Supreme Court. The rights

discussed in Pope include (1) the parents’ interest in

custody and control of their children, which

encompasses the right to make medical decisions for

the child, and (2) the family right to association, which

includes a right for parents and children to be together

when a child receives medical care. Id. at *1084-91.

Citing numerous cases—most of which concerned

parental rights in the child welfare context—Pope

describes these rights as “long established” but “not

absolute.” Id. at 1086 (internal quotation marks and

citation omitted).

Neither of the rights discussed in Pope 8 apply to

plaintiff’s circumstances here. The state family court

8 The Court does not understand plaintiff to be arguing that Pope

itself “clearly establishes” a relevant right, but to the extent

38a

lawfully stripped plaintiff of nearly all his parental

rights in its custody order. SAC ¶ 72. In addition to

Section 7a and 7b excerpted supra, the custody order

states: “Mother [Underhill] shall be the sole temporary

legal custodial parent of [Minor] and may make

decisions on her own for [Minor’s] health, education,

and welfare without father’s consent.” While “Father

[plaintiff] shall have a right to obtain all otherwise

confidential information regarding [Minor’s] health,

education, and welfare,” the order specifies that

“Father does not have a ‘right’ to attend medical

appointments for [Minor].” SAC Ex. A at 6. The order

thus at least limits, if not removes, the two rights

discussed in Pope as they pertain to plaintiff. See Pope,

719 F. Supp. 3d at 1084-91. 9

Further, the Court is not persuaded by plaintiff’s

apparent argument that defendants violated a “clearly

established” Constitutional right because Section 7b of

the custody order (plaintiff’s ability to withhold

consent to surgical procedures) overrides Section 7a

(Minor’s ability to pursue hormone therapy if

recommended by UCSF). Reasonable doctors or

lawyers could have believed the Supprelin implant

was part of or an adjunct to the type of hormone

therapy specifically permitted by Section 7a of the

custody order. See SAC ¶ 76. While a court might

conclude defendants wrongly believed the procedure

was permitted without plaintiff’s consent, the correct

plaintiff wishes to make this argument, the Court notes Pope was

decided in May 2024, after the events at issue here.

9 As

noted above, plaintiff does not in this case challenge the

legality or constitutionality of that order. Had he done so, the

Rooker-Feldman doctrine would have applied.

39a

interpretation of these provisions of the custody order

was not “beyond debate.” See Carroll, 574 U.S. at 16. 10

To be clear, the Court does not determine whether

plaintiff’s constitutional rights were actually violated,

but the Court holds that the UCSF defendants did not

violate a “clearly established constitutional right.” As

such, they are entitled to qualified immunity.

§ 1983 Claim Summary

The Court GRANTS the motion to dismiss as to

defendants Ehrensaft, Rosenthal, Lee, and Orr

because they are shielded from liability by qualified

immunity. The Court GRANTS the motion to dismiss

as to defendants Harkins, Bigger, and Underhill,

because plaintiff has not pled facts establishing they

are de facto state actors. The Court dismisses

plaintiff’s § 1983 claim with prejudice.

IV. State Law Claims

Whether the Court Must Dismiss the

State Claims

“District courts may decline to exercise

supplemental jurisdiction over a claim” if “the district

court has dismissed all claims over which it has

original jurisdiction.” 28 U.S.C. § 1367(c). In

exercising discretion to retain supplemental

10 Separate from the constitutional claim, plaintiff is entitled to

make an argument that defendants violated the terms of the

custody order, but that argument belongs back in the state court.

The Court notes plaintiff filed but later withdrew criminal

contempt actions against Underhill, Harkins, Bigger, and UCSF

in Contra Costa County Superior Court. Dkt. No. 77 at 5. The

propriety of defendants’ actions could clearly be determined in

that forum.

40a

jurisdiction, “a federal court should consider and

weigh in each case, and at every stage of the litigation,

the values of judicial economy, convenience, fairness,

and comity . . .” Carnegie-Mellon University v. Cohill,

484 U.S. 343, 350 (1988) (citing Mine Workers v. Gibbs,

383 U.S. 715 (1966)). If the Court dismisses the

remaining federal claim, the Court may dismiss the

state claims (but it is not required to do so). See id.

Here, the Court will consider the state law claims on

their merits, to avoid forcing the parties to relitigate

these issues in state court.

Whether the Fraud by Concealment

Claim Should be Dismissed for Failure

to State a Claim (Second Cause of

Action)

The Court previously granted a motion to dismiss

plaintiff’s fraudulent concealment claim, without

leave to amend as to Bigger, Harkins, and Orr, and

with leave to amend as to Rosenthal, Ehrensaft, Lee,

and Underhill. Dkt. No. 86 at 23-24. The Court

additionally noted plaintiff must meet the heightened

pleading standard of Rule 9(b) if plaintiff filed a fraud

by concealment claim in an amended complaint. Id.

Plaintiff’s amended fraud by concealment claim is

brought against Rosenthal, Ehrensaft, Lee, and Orr.

SAC at 28. The Court addresses the claim only as to

Rosenthal, Ehrensaft, Lee and Underhill because

leave to amend was not granted as to defendant Orr. 11

Dkt. No. 86 at 23-34.

11 Plaintiff did not name Underhill in the caption of this action

even though the Court granted leave to amend as to Underhill.

Dkt. No. 86 at 23-24. Plaintiff argues this is error in his

41a

The required elements of fraudulent concealment

are: “(1) concealment or suppression of a material fact;

(2) by a defendant with a duty to disclose the fact to

the plaintiff; (3) the defendant intended to defraud the

plaintiff by intentionally concealing or suppressing the

fact; (4) the plaintiff was unaware of the fact and

would not have acted as he or she did if he or she had

known of the concealed or suppressed fact; and

(5) plaintiff sustained damage as a result of the

concealment or suppression of the fact.” Broge v. ALN

Int’l, Inc., No. 17-CV-07131-BLF, 2018 WL 2197524,

at *4 (N.D. Cal. May 14, 2018) (quoting Graham v.

Bank of Am., N.A., 226 Cal. App. 4th 594, 605-06

(2014)). Under Rule 9(b), fraud claims must be pled

with particularity. Rule 9(b)’s heightened pleading

requirements demand that “[a]verments of fraud must

be accompanied by the who, what, when, where, and

how” of the misconduct charged and “must set forth

what is false or misleading about a statement, and

why it is false.” Vess v. Ciba-Geigy Corp. U.S.A., 317

F.3d 1097, 1106 (9th Cir. 2003) (internal quotation

marks and citations omitted). Fraud allegations must

include the “time, place, and specific content of the

false representations as well as the identities of the

parties.” Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th

Cir. 2007) (internal quotation marks and citation

omitted). However, “[m]alice, intent, knowledge, and

opposition and seeks leave to amend to correct the error. Dkt. No.

103 at 11. For efficiency, the Court is considering the claim as if

Underhill had been named. Plaintiff concedes Orr should not

have been named as a defendant for the fraudulent concealment

claim. Dkt. No. 103 at 11.

42a

other conditions of a person’s mind may be alleged

generally.” Fed. R. Civ. P. 9(b).

After reviewing the added allegations in

plaintiff’s SAC, the Court concludes plaintiff still has

not established that any of the remaining defendants

had a “duty to disclose” facts to plaintiff. See Graham,

226 Cal. App. at 605-06. Plaintiff alleges the UCSF

defendants had a duty to refrain from “involuntary

human medical experimentation” and to follow the

family law court order. SAC ¶ 155. To the extent such

a duty exists, plaintiff does not cite legal authority or

otherwise explain how this translates to a “duty to

disclose” information to plaintiff. See Graham, 226

Cal. App. at 605-06. The fraudulent concealment claim

is DISMISSED as to Rosenthal, Ehrensaft, and Lee.

As to his fraud claim against Underhill, plaintiff

alleges “Underhill owed Plaintiff a fiduciary duty and

the duty of good faith and fair dealing as a former

spouse and co-parent,” but it is again unclear how this

would translate to a “duty to disclose.” Id.; SAC ¶ 157.

Considering the custody order did not provide plaintiff

with any right to receive updates regarding [Minor’s]

medical treatment, plaintiff’s allegations are too

conclusory to establish a duty to disclose under the

heightened Rule 9(b) requirement. SAC, Ex. A at 6;

Graham, 226 Cal. App. at 605-06. Additionally,

plaintiff alleges Underhill was “deceived” by the other

defendants who worked to conceal the truth from

Underhill. SAC ¶¶ 21-26, 124. The allegations

indicate Underhill was not a perpetrator of the alleged

fraud, but herself a victim. See id. The fraudulent

concealment claim is DISMISSED as to Underhill as

well.

43a

B. Whether the Negligent Infliction of

Emotional Distress (“NIED”) Claim

Should be Dismissed For Failure to State

a Claim (Third Cause of Action)

The Court previously dismissed plaintiff’s NIED

claim as to defendant Harkins, Bigger, and Orr

because the plaintiff could not allege they owed

plaintiff a duty of care because plaintiff was not their

client, or a third0 party in a transaction intended to

benefit him. Dkt. No. 86 at 28. As to the individual

UCSF defendants and Underhill, the Court dismissed

with leave to amend. Id. Plaintiff’s SAC alleges the

NIED claim against Rosenthal, Ehrensaft, Lee, Orr,

and Underhill. SAC at 31. Plaintiff’s opposition

concedes the Court dismissed this cause of action as to

Orr without leave to amend. Dkt. No. 103 at 11. Thus,

the Court does not consider Orr in the analysis.

“California courts treat [NIED] as a form of the

tort of negligence with the following elements:

(1) duty; (2) breach of duty; (3) causation; (4) and

damages.” Redd-Oyedele v. Santa Clara Cnty. Off. of

Educ., No. 20-CV-00912-SVK, 2020 WL 7319404, at *4

(N.D. Cal. Dec. 11, 2020) (citing Burgess v. Superior

Court, 2 Cal. 4th 1064, 1072 (1992)). “Whether a

defendant owes a duty of care is a question of law.”

Marlene F. v. Affiliated Psychiatric Medical Clinic,

Inc., 48 Cal. 3d 583, 588 (1989). The California

Supreme Court has indicated that when considering

the existence of a duty, several factors “require

consideration” including:

the foreseeability of harm to the plaintiff, the

degree of certainty that plaintiff suffered

44a

injury, the closeness of the connection

between the defendant’s conduct and the

injury suffered, the moral blame attached to

the defendant’s conduct, the policy of

preventing future harm, the extent of the

burden to the defendant and consequences to

the community of imposing a duty to exercise

care with resulting liability for breach, and

the availability, cost, and prevalence of

insurance for the risk involved.

Christensen v. Superior Court, 54 Cal. 3d 868, 885-86

(1991) (internal quotation marks and citation

omitted). “In a direct victim case, a plaintiff seeks

damages for emotional distress resulting from a

breach of duty owed the plaintiff which is ‘assumed by

the defendant or imposed on the defendant as a matter

of law, or that arises out of a relationship between the

two.’” Jacoves v. United Merchandising Corp., 9 Cal.

App. 4th 88, 108 (1992) (quoting Marlene F., 48 Cal.

3d at 590)); see also Potter v. Firestone Tire & Rubber

Co., 6 Cal. 4th 965, 985 (1993). In direct victim cases,

the limits on bystander cases have no direct

application and well-settled principles of negligence

are invoked. Ragland v. U.S. Bank National Assn., 209

Cal. App. 4th 182, 206 (2012).

Plaintiff alleges that “[d]efendants were each

aware of the fact that Hudacko, like any good parent,

would be traumatized upon learning that his child had

been subjected to INVOLUNTARY HUMAN

MEDICAL EXPERIMENTATION. Thus, Defendants

and each of them owed Hudacko an affirmative duty

to refrain from participating in the SCHEME and to

refrain from advancing the WPATH TRUE

45a

MISSION.” SAC ¶ 173. Plaintiff additionally alleges

“[d]efendants, as medical professionals, members of

WPATH had a duty to disclose their economic

interests and research involving experimentation on

children,” and “Underhill as former spouse to Plaintiff

and co-parent owed a fiduciary duty and duty of good

faith and fair dealing.” Id. ¶¶ 174-175. Plaintiff

indicates he is suing under a “direct victim theory not

a bystander theory.” Dkt. No. 101 at 12.

The medical defendants move to dismiss, arguing

“Plaintiff’s claim fails because none of the allegations

support a fiduciary or special relationship with the

medical defendants or any actionable conduct.” Dkt.

No. 100 at 28. The medical defendants further argue

“[a]ny claim that the medical defendants owed a duty

to disclose their supposed ‘economic and research

interests’ in gender affirming care and with respect to

their involvement with WPATH, also fails because this

duty was owed to the patient and not Mr. Hudacko.”

Id. at 29. Underhill also moves to dismiss, arguing the

SAC still fails to state a claim against Underhill for

NIED. Id.

The Court finds plaintiff has not alleged sufficient

facts to establish the necessary legal duty as a matter

of law. The Court previously found plaintiff’s

allegations in the FAC did not sufficiently allege that

any of the defendants owed plaintiff a duty of care

imposed on them as a matter of law or that arises out

of the relationship between plaintiff and defendant. 12

12 In

the FAC, plaintiff alleged that “he was owed a duty by

defendants to ‘refrain from performing gender identity related

surgery on the minor’ without his consent and that defendants

46a

Dkt. No. 86 at 28. Plaintiff’s allegations related to

defendants’ duty are nearly identical in the SAC

(including allegations that defendants owe plaintiff a

duty to refrain from “participating in the SCHEME,”

refrain from “advancing the WPATH TRUE

MISSION,” and refrain from “concealing the

SCHEME.” See SAC ¶¶ 172-178. The SAC does not

allege a legal duty owed by defendants to plaintiff, so

the claim is DISMISSED.

CONCLUSION

For the foregoing reasons and for good cause

shown, the Court hereby GRANTS the motions to

dismiss all causes of action. For the first cause of

action, the Court GRANTS the motion to dismiss as to

defendants Ehrensaft, Rosenthal, Lee, and Orr

because they are shielded from liability by qualified

immunity, and GRANTS the motion to dismiss as to

defendants Harkins, Bigger, and Underhill, because

plaintiff has not pled facts establishing they are de

facto state actors. The Court GRANTS the motion to

dismiss the second and third causes of action because

plaintiff has not pled facts establishing all required

elements of each claim.

IT IS SO ORDERED.

Dated: November 25, 2024

/s/

SUSAN ILLSTON

United States District Judge

breached their duty to plaintiff by ‘willfully violating the no

surgery injunction’ in the state court order.” Dkt. No. 86 at 28.

47a

Appendix C

Case 3:23-cv-05316-SI

Document 118

Filed: 11/26/24

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

EDWARD ALLYN

HUDACKO,

Case No. 23-cv-05316-SI

Plaintiff,

JUDGMENT

JANET YI MAN LEE, et al.,

Defendants.

The Court has granted defendants’ motions to

dismiss with respect to all causes of action. Judgment

is hereby entered against plaintiff and in favor of

defendants.

IT IS SO ORDERED AND ADJUDGED.

Dated: November 26, 2024

/s/

SUSAN ILLSTON

United States District Judge

48a

Appendix D

Case 3:23-cv-05316-SI

Document 86

Filed: 08/20/24

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

EDWARD ALLYN

HUDACKO,

Plaintiff,

REGENTS OF THE

UNIVERSITY OF

CALIFORNIA, et al.,

Defendants.

Case No. 23-cv-05316-SI

ORDER GRANTING

IN PART AND

DENYING IN PART

DEFENDANTS’

MOTIONS TO

DISMISS

Re: Dkt. Nos.

30, 32, 36, 37

Before this Court are four motions to dismiss filed

by defendants. Dkt. Nos. 30, 32, 36, 37. 1 Plaintiff

opposes each motion. For the reasons set forth below,

the Court GRANTS in part and DENIES in part the

motions to dismiss.

1 Defendants Regents of the University of California, Janet Yi

Man Lee, Diane Ehrensaft, and Stephen Rosenthal filed two

identical motions to dismiss. Dkt. Nos. 35, 36. The Court refers to

the later filed motion, Dkt. No. 36, throughout.

49a

BACKGROUND 2

Plaintiff filed his complaint pro se and the

complaint is 109 pages long, consisting of 26 pages of

pleadings and 83 pages of attachments. Dkt. No. 19

(“Compl.”). Attachments include medical records and

correspondence between the parties. Plaintiff seeks to

“vindicate … his right to prohibit gender identity

related surgery upon his minor child.” Id. ¶ 1.

Plaintiff and his ex-wife Christine Underhill,

f/k/a/ Christine Hudacko, “were embroiled in a highconflict family law case.” Id. ¶ 31. 3 “The point of

contention was that Christine wanted to attempt to

medically ‘transition’ their son … from boy to girl,”

which plaintiff opposed “based on his belief that the

treatments for ‘gender dysphoria’ remain largely

experimental.” Id. ¶¶ 31-32. On August 26, 2020, the

Contra Costa County Superior Court granted

Underhill sole temporary legal custody over their

(then) minor child (“Minor”) and authorized Underhill

to “make decisions on her own for [Minor’s] health,

education and welfare without Father’s consent.”

Compl., Ex. A at ECF 6. 4 The court ordered that

2 For purposes of this motion to dismiss, the Court treats as true

the factual allegations as stated in plaintiff’s complaint and

draws all reasonable inferences in plaintiff’s favor. See Usher v.

City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987).

3 Underhill’s

name was restored to Christina Marie Underhill

during the marriage dissolution proceedings between her and

plaintiff. Dkt. No. 33-1, Ex. A at ECF 4. The Court thus refers to

plaintiff’s ex-wife as defendant Underhill throughout.

4 Minor was born in 2004 and was a minor at the time of the

alleged facts. Compl., Ex. A at ECF 4. The Court refers to Minor

as Minor throughout to preserve their anonymity.

Plaintiff and Underhill had two children together. They were

50a

plaintiff “not have visitation with [Minor] unless it is

in a therapeutic setting with [Minor’s] consent.” Id.

Plaintiff was granted “the right to obtain all otherwise

confidential information regarding [Minor’s] health,

education, and welfare” but “does not have a ‘right’ to

attend medical appointments for [Minor].” Id.

Underhill was “not ordered specifically to provide

Father with ‘updates’ on a monthly or weekly basis.

Mother may provide such information to Father at her

discretion.” Id. The order further provides that

plaintiff “may contact [Minor’s] doctors, teachers, etc.

for information about [Minor].” Id.

The custody order also details services Minor

could receive. Id. at ECF 7-8. At issue here is the

provision that “[Minor] will not be permitted to

undergo any gender identity related surgery until they

are 18 years of age, absent a written agreement by

both parties, Christine Hudacko and Edward

Hudacko, or an order of the court.” Id. at ECF 7. The

order also contains a provision stating: “[Minor] shall

be permitted to pursue the services provided by UCSF

as to [Minor’s] gender identity, and shall be permitted

to commence hormone therapy, if recommended by

UCSF.” Id. On September 29, 2020 Underhill

informed plaintiff via email that UCSF had been

provided with the custody order per their request.

Compl. ¶ 36.

On February 17, 2021, without plaintiff’s

knowledge, Underhill took Minor for a patient visit at

granted joint legal and physical custody over their younger child.

Compl., Ex. A at ECF 4. The custody order pertaining to the

younger child is not at issue in this case.

51a

the University of San Francisco (“UCSF”) Child and

Adolescent Gender Center (“the UCSF Center). Id.

¶ 38, Ex. E. At that visit, “UCSF doctors discussed

with [Minor] a category of experimental drugs called

‘Puberty Blockers’ that ‘help temporarily suspend or

block the physical changes of puberty.’” Id. ¶ 38

(quoting Ex. E). Four different types of puberty

blockers were discussed at that visit. Id. ¶ 39.

According to plaintiff, the first three options were

nonsurgical (injections or an oral tablet), however the

fourth option – a “subcutaneous histrelin implant” –

required surgery. Id. On that same date, UCSF sent

an appointment follow-up letter that listed the risks of

puberty blockers, including that “the side effects and

safety of puberty blockers are not completely

understood,” “[t]here may be long-term risks that are

not yet known,” and the blockers are “not approved by

the Food and Drug Administration for this specific

use.” Id., Ex. E at ECF 2-21. On August 4, 2021, a

“histrelin subcutaneous implant was inserted” into

Minor’s arm (“the implant procedure”). Id., Ex. I.

Plaintiff alleges that this procedure was categorized as

surgery. Id. ¶ 45. UCSF billed $209,820.34 for the

procedure. Id. ¶ 46, Ex. L. Plaintiff points to a claim

detail from UnitedHealthcare that lists a “surgery” on

August 4, 2021, amount billed $745. Id., Ex. D. UCSF

medical records indicate that the “histrelin

subcutaneous implant was inserted” and refer to the

insertion as a “procedure.” Id., Ex. I. The implant was

3.5 cm long and 3 mm wide. Id.

On October 18, 2021 Underhill emailed plaintiff:

“[Minor] has begun hormone therapy – testosterone

blocker (Supprelin) via an implant and estrogen via

52a

pills (Estradiol). [Minor] is doing well and happy to

finally begin the process … Insurance has paid for the

vast majority of the implant procedure and I sent

UCSF a check for the balance ($2035.64). I don’t

expect that you will pay for half given your disapproval

of transitioning.” Compl., Ex. C. Plaintiff “did not

know that Defendants were planning to perform

gender related surgery” until this date, “months after

surgery was actually performed.” Id. ¶ 91. Had the

“scheme” been disclosed to plaintiff prior to the

“surgery,” plaintiff “could and would have brought the

scheme to the attention of the Family Court, seeking

an emergency protective order placing all Defendants

on notice that severe consequences – sufficient to stop

the scheme – would result from any violation of the no

surgery injunction.” Id. ¶ 93.

Plaintiff has sued seven defendants including

Underhill, her counsel, Minor’s court-appointed

counsel, UCSF, UCSF physicians, and a volunteer

attorney with the UCSF Center. 5 He alleges that The

5 Defendant Underhill, sued in her individual capacity and as a

de facto state actor, is plaintiff’s ex-wife and the mother of Minor.

Id. ¶¶ 28-29. Defendant Bigger, sued in his individual capacity

and as a de facto state actor, is an attorney who represented

Underhill in the family law case. Id. ¶¶ 24-25. Defendant

Harkins, sued in his individual capacity and as a de facto state

actor, was the court-appointed attorney for Minor during the

family court proceedings. Id. ¶¶ 26-27; Dkt. No. 30 at 4.

Defendant Lee, sued in her individual capacity, is a pediatric

endocrinologist at UCSF. Id. ¶ 17. Defendant Ehrensaft, sued in

her individual and official capacities, is co-director of the Center

and is a developmental and clinical psychologist. Id. ¶¶ 18-19.

Defendant Rosenthal, sued in his individual and official

capacities, is also co-director of the UCSF Center and a Professor

53a

Regents of the University of California (“Regents”)

“implemented a policy under which it may accept

money in exchange for performing gender identity

related surgery on a minor child without obtaining the

necessary consent, while concealing any such activity

from any disapproving interested person.” Id. ¶ 15. He

alleges that the individual defendants, acting as

employees of the Regents or de facto state actors, are

participants in and aided this “scheme” and that all

defendants concealed the alleged scheme. See id.

¶¶ 15-29. He alleges seven causes of action: (1) 42

U.S.C. § 1983 - damages, deprivation of fundamental

right to direct a minor child’s medical care without due

process and conspiracy to same; (2) 14th Amendment

procedural due process violation; (3) fraud by

concealment; (4) medical battery and civil conspiracy

to same; (5) intentional infliction of emotional distress

and civil conspiracy to same; and (6) negligent

infliction of emotional distress. Plaintiff also seeks a

declaratory judgment under 28 U.S.C. § 2201 that “a

valid Court Order enjoining gender identity related

surgery for a minor child without the parent’s consent

shall hereafter be considered a fundamental

constitutional right, because it derives from the

fundamental right to family unity found in the liberty

clause of the 14th Amendment.” Id. at 13-23.

of Pediatrics at the UCSF School of Medicine. Id. ¶¶ 20-21.

Defendant Orr, sued in his individual and official capacities, “is a

California attorney, transgender activist, and was legal director”

of the

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