Hendy v. Demers

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

CARY V. HENDY, ) Case No. 5:24-cv-1321

)

Plaintiff, ) Judge J. Philip Calabrese

)

v. ) Magistrate Judge

) James E. Grimes, Jr.

STEPHANIE BOSTOS DEMERS, )

et al., )

)

Defendants. )

)

OPINION AND ORDER

Plaintiff Cary Hendy filed suit without a lawyer against nineteen Defendants

alleging violations of due process and equal protection and criminal conduct. The

complaint asserts that Defendants illegally conducted an investigation against

Plaintiff and others. Defendants move to dismiss. For the reasons that follow, the

Court GRANTS the motion.

BACKGROUND

In February 2015, Mr. Hendy received mail from the Department of Housing

and Urban Development alerting him to allegations of discrimination against him.

(ECF No. 1-2, PageID #37.) He alleges that Defendants’ “attack” against him began

the year before, in August 2014. (ECF No. 1, PageID #12; id., PageID #13.)

In August 2014, Plaintiff placed an on Craigslist listing a house for rent. (ECF

No. 1-2, PageID #42.) Among those asking to submit an application and visit the

property were testers. (Id., PageID #43.) Testers are individuals who “without any

bona fide intent to rent[,] . . . pose as prospective renters . . . for the purpose of

gathering information. This information may indicate whether a provider is

complying with federal civil rights laws.” Fair Housing Testing Program, Civil Rights

Division, U.S. Dep’t of Justice, https://www.justice.gov/crt/fair-housing-testing-

program-1 (updated January 22, 2025). Following Mr. Hendy’s interactions with the

testers, a charge of discrimination was filed against Mr. Hendy with the Ohio Civil

Rights Commission. (ECF No. 1-2, PageID #44.)

At the completion of the investigation, the Ohio Civil Rights Commission

ordered Mr. Hendy to: (1) cease and desist from all discriminatory practices in

violation of Chapter 4112 of the Ohio Revised Code; (2) pay the complainant $10,713

in actual damages; (3) pay the complainant $5,000 in punitive damages; (4) pay the

Ohio Attorney General’s office attorney’s fees in the amount of $8,687.50; (5) within

six months of the date of the Commission’s final order, receive training regarding the

anti-discrimination fair housing laws of the State of Ohio; (6) within seven months of

the Commission’s final order, submit letters of training certification to the

Commission’s compliance department. (ECF No. 1-9, PageID #71.) In May 2024, the

Summit County Court of Common Pleas entered judgment against Mr. Hendy for the

amounts previously stated. (ECF No. 1-10, PageID #73.)

STATEMENT OF THE CASE

Previously, Plaintiff brought suit relying on the same underlying facts. After

the Ohio Civil Rights Commission issued its order, Mr. Hendy pursued legal action

at the State and federal levels naming many of the same Defendants as he did in this

case. In State court, Plaintiff filed suit challenging the Commission’s order in October

2017, the Ohio intermediate appellate court affirmed the Ohio Civil Rights

Commission’s order in December 2023, and the Ohio Supreme Court declined to

accept jurisdiction in June 2024. Hendy v. Ohio Civil Rights Comm., CV-2017-10-

4426 (Summit Cnty. Ct. Com. Pl. Oct. 23, 2017).

Plaintiff filed his first federal case in March 2021, and it was dismissed in July

2021. Hendy v. Boggs, No. 5:21-cv-647, 2021 WL 3169202 (N.D. Ohio July 26, 2021).

He filed this lawsuit on August 1, 2024, naming the following Defendants:

(1) Stephanie Bostos Demers; (2) Keith P. McNeil; (3) G. Michael Payton; (4) Denise

Johnson; (5) Angela Phelps-Jones; (6) Desmon A. Martin; (7) Tameka Brooks;

(8) Sandra Manis; (9) Vera Boggs; (10) Lori Anthony; (11) Wayne Williams;

(12) Madhu Singh; (13) Juan Cespedes; (14) Lori Barreras; (15) William Pattmon;

(16) Leonard Hubert; (17) David Oppenheimer; (18) David Yost; and (19) Charles

Miller. (ECF No. 1, PageID #2-4.)

Mr. Hendy sets forth several causes of action in his complaint. Under federal

law, Plaintiff alleges violations of the Due Process Clause and the Equal Protection

Clause. (ECF No. 1, PageID #28.) Under State law, Plaintiff brings claims under

various Ohio criminal statutes. But it is unclear if he pursues those claims under

Section 2307.60, which provides a civil action for damages for criminal acts, or as

independent civil causes of action. (Id.) He brings the following State-law claims:

(1) interfering with civil rights; (2) dereliction of duty; (3) obstruction justice;

(4) conspiracy; (5) falsification in an official proceeding; (6) fraud; (7) using sham legal

process; and (8) misconduct in office. (ECF No. 1, PageID #15.)

On August 5, 2024 Plaintiff filed a motion requesting leave to amend his

complaint in three ways, but the amendments do not alter the claims or assertions in

the complaint. (ECF No. 3.) Instead, the motion changes the presentation of certain

documents and exhibits and corrects certain statements made in the complaint. (See

generally id.) A party may amend its pleading once as of course no later than 21 days

after service. Fed. R. Civ. P. 15(a)(1)(A). Therefore, Plaintiff’s request for leave to

amend was unnecessary because he was able to amend as of right without need for

the Court’s approval. For this reason, and because Plaintiff is proceeding pro se, the

Court GRANTS the motion and considers the complaint with the amendments and

corrections set forth in the motion.

Defendants move to dismiss Plaintiff’s complaint. (ECF No. 22.) After the

close of briefing, Plaintiff filed a second motion for leave, requesting to clarify points

and add arguments from a recent Supreme Court case. (ECF No. 32.) Defendants

oppose that motion. (ECF No. 33.)

ANALYSIS

Pro se pleadings, those a litigant prepares without the assistance of counsel,

receive liberal construction. Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per

curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972). The Court recognizes that pro se

pleadings are held to a “less stringent standard[] than formal pleadings drafted by

lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the “lenient

treatment generally accorded to pro se litigants has limits.” Pilgrim v. Littlefield, 92

F.3d 413, 416 (6th Cir. 1996). Liberal construction for pro se litigants does not

“abrogate basic pleading” requirements. Wells v. Brown, 891 F.2d 591, 594 (6th Cir.

1989). The Court is not required to conjure unpleaded facts or construct claims

against defendants on behalf of a pro se plaintiff. See Bassett v. National Collegiate

Athletic Ass’n, 528 F.3d 426, 437 (6th Cir. 2008). Although specific facts are not

required, to meet the basic minimum notice pleading requirements, Plaintiff’s

complaint must give the defendants fair notice of what the plaintiff’s legal claims are

and the factual grounds on which they rest. Id.

I. Second Motion for Leave

Plaintiff filed a motion for leave, seeking to reference an additional Supreme

Court case in his argument and provide clarifications. (ECF No. 32.) The Court

construes this motion as a request to file a surreply. Defendants oppose, arguing that

the purported surreply is improper. (ECF No. 33.)

As a surreply, the Federal Rules of Civil Procedure do not authorize the filing

of surreplies. Nor do the Local Rules. Accordingly, permitting a sur-reply rests in

the court’s discretion. Key v. Shelby Cnty., 551 App’x 262, 264 (6th Cir. 2014).

Surreplies are disfavored but can be granted when a reply contains new legal

arguments or evidence. Liberty Legal Found. v. Nat’l Democratic Party of the USA,

Inc., 875 F. Supp. 2d 792, 797 (W.D. Tenn. 2012). The Court does not permit the filing

of surreplies without prior approval on a showing of good cause and, even then, will

only rarely permit them. See Civil Standing Order, § 9.D. (available here).

In his surreply, Plaintiff references the Supreme Court’s recent decision in

Securities and Exchange Commission v. Jarkesy, 603 U.S. 109 (2024). The Supreme

Court decided Jarkesy before Plaintiff filed his complaint and some four months

before Mr. Hendy responded to the motion to dismiss. In short, whatever support

Plaintiff might draw from Jarkesy, those arguments were previously available to him

and should have been included in his response to the motion to dismiss, at the latest.

In any event, on the merits, Jarkesy provides no support to Plaintiff’s arguments

against dismissal. For these reasons, the Court DENIES Plaintiff’s second motion

for leave (ECF No. 32).

II. Motion to Dismiss

In any civil action, a complaint must “state[] a claim for relief that is plausible,

when measured against the elements” of a claim. Darby v. Childvine, Inc., 964 F.3d

440, 444 (6th Cir. 2020) (citing Binno v. American Bar Ass’n, 826 F.3d 338, 345–46

(6th Cir. 2016)). A complaint must “contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A claim is plausible “when the plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556). To survive a motion to dismiss,

a complaint must “raise a right to relief above the speculative level” into the “realm

of plausible liability.” Twombly, 550 U.S. at 555, 557 n.5. Although Plaintiff proceeds

pro se, his pleadings must still give Defendants fair notice of his claims and legal

arguments. Bassett v. National Collegiate Athletic Ass’n, 528 F.3d 426, 437 (6th Cir.

2008).

When analyzing a complaint under this standard, the Court construes factual

allegations in the light most favorable to the plaintiff, accepts them as true, and

draws all reasonable inferences in the plaintiff’s favor. Wilburn v. United States, 616

F. App’x 848, 852 (6th Cir. 2015). But a pleading must offer more than mere “labels

and conclusions,” because “a formulaic recitation of the elements of a cause of action

will not do.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Nor is a

court required to accept “[c]onclusory allegations or legal conclusions masquerading

as factual allegations[.]” Eidson v. Tennessee Dep’t of Child.’s Servs., 510 F.3d 631,

634 (6th Cir. 2007).

Therefore, the Court must distinguish between “well-pled factual allegations,”

which must be treated as true, and “naked assertions,” which need not be. See Iqbal,

556 U.S. at 678 (“Nor does a complaint suffice if it tenders naked assertions devoid of

further factual enhancement.”) (cleaned up); see also, e.g., Center for Bio-Ethical

Reform, Inc. v. Napolitano, 648 F.3d 365, 375 (6th Cir. 2011) (determining that

because some of the plaintiff’s factual allegations were “not well-pleaded[,]” “their

conclusory nature ‘disentitles them to the presumption of truth’”). Rule 8 “does not

unlock the doors of discovery for a plaintiff armed with nothing more than

conclusions.” Iqbal, 556 U.S. at 678–79.

On a motion under Rule 12(b)(6), the Court’s inquiry is limited to the content

of the complaint, although it may also consider matters of public record, orders, items

appearing in the record of the case, and exhibits attached to or made part of the

complaint. Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001). Accordingly,

the Court limits its review to matters properly included in the pleadings and, as

discussed below, those subject to judicial notice.

II.A. Federal Claims (Section 1983)

Plaintiff brings a group of claims under 42 U.S.C. § 1983:

Claim #1: Each & every named defendant took part in robbing me from

10years [sic] of my life to what is should have been by my own choices &

acts. I clearly state these individuals denied me from my Statutory &

Constitutional rights.

Claim #2: These state of Ohio agents, acting under color of law stripped

me of my Constitutional Right to Due Process; being my 14th

amendment rights.

Claim #3: These state of Ohio agents, acting under color of law stripped

me of my Constitutional Right to Equal Protection; being my 14th

amendment rights.

(ECF No. 1, PageID # 28.) Because the first claim does not identify any specific

federal constitutional or statutory right, the Court construes the complaint as

pleading due process and equal protection claims. Defendants argue for dismissal of

these claims based on the statute of limitations.

State law provides the applicable limitations period for Section 1983 claims.

Wilson v. Garcia, 471 U.S. 261, 268–69 (1985). Because Congress did not provide a

specific limitations period for claims under Section 1983, federal courts borrow the

statute of limitations for the most closely analogous cause of action under State law.

Owens v. Okure, 488 U.S. 235, 240–41 (1989). In this case, the causes of action most

closely resemble tort claims. Because the parties direct the Court to no other

applicable limitations period, the Court applies Ohio’s general two-year statute of

limitation for personal injury claims. See Ohio Rev. Code § 2305.10(A); Williams v.

Schismenos, 258 F. Supp. 3d 842, 853 (N.D. Ohio 2017) (citation omitted) (applying

this two-year limitations period to claims arising under Section 1983).

Although State law supplies the limitations period, two years in this case,

federal law determines when a cause of action accrues and begins to run. Ruff v.

Runyon, 258 F.3d 498, 500 (6th Cir. 2001). Generally, federal law employes a

discovery rule, under which a cause of action under Section 1983 accrues when the

plaintiff knows or in the exercise of reasonable diligence should have learned of his

injury. Kuhnle Bros., Inc. v. County of Geauga, 103 F.3d 516, 520 (6th Cir. 1997)

(quoting Sevier v. Turner, 742 F.2d 262, 273 (6th Cir. 1984)).

On Defendants’ motion to dismiss, construing the complaint in favor of

Plaintiff, as the Court must in the present procedural posture, the Court cannot say

that the statute of limitations bars Plaintiff’s claims. Plaintiff litigated in State court

and did not receive a final non-appealable order until December 2023 (when the

intermediate appellate court ruled) or June 2024 (when the Ohio Supreme Court

declined review). It is not necessarily the case that entry of a final non-appealable

order provides the accrual date for Mr. Hendy’s causes of action. But no party

addresses that question. Nor does any party raise any issues of res judicata based on

the filing and dismissal of Mr. Hendy’s prior federal lawsuit. For these reasons, the

Court proceeds to the merits of Plaintiff’s claims.

II.A.1. Due Process

The Fourteenth Amendment provides that “[n]o State shall . . . deprive any

person of life, liberty, or property, without due process of law.” U.S. Const. amend.

XIV. The Due Process Clause has both substantive and procedural dimensions. EJS

Props., LLC v. City of Toledo, 698 F.3d 845, 855 (6th Cir. 2012). Plaintiff repeatedly

references and refers to procedural due process (ECF No. 1, PageID #16–17), so the

Court analyzes his claim as alleging procedural due process violations.

On such a claim, a plaintiff must plead and prove a constitutionally protected

liberty or property interest and show that such an interest was deprived without

appropriate process. Midkiff v. Adams Cnty. Reg’l Water Dist., 409 F.3d 758, 762–63

(6th Cir. 2005) (citing Board of Regents v. Roth, 408 U.S. 564, 569–70 (1972)). Then,

the inquiry becomes “whether the deprivation of that interest contravened notions of

due process.” Id. (quoting Thomas v. Cohen, 304 F.3d 563, 576 (6th Cir. 2002)). Here,

Defendants do not dispute that Plaintiff suffered a deprivation in the amount of

$24,400.50 plus interest. (ECF No. 1, PageID #16.)

If a deprivation occurred, the Court addresses whether the plaintiff received

due process. At bottom, due process requires that a person be “given notice of the

case against him” and an “opportunity to meet it.” Shoemaker, 795 F.3d at 559

(quoting Mathews v. Eldridge, 424 U.S. 319, 348–49 (1976)). In September 2015,

Plaintiff received an email explaining an investigation had occurred based on a

complaint of discrimination. (ECF No. 1-2, PageID #47.) Plaintiff responded claiming

he had not “read any findings letters, or information from a supposed 6 month

investigation” and continued alleging that he “wasn’t contacted, spoken to, inquired

of.” (Id.) He maintains that he never knew of the investigation and disputes the

findings of the investigation that occurred. (ECF No. 1, PageID #16–23.)

Plaintiff’s attachments to his complaint include emails, transcripts, and other

filings all demonstrating that he had notice of the claims against him such that he

could (and did) pursue the remedies available to him administratively and in the

State courts. For example, notice of the charges was served on Mr. Hendy, and he

responded (ECF No. 1-29, PageID #156); he had a hearing before an administrative

law judge at the Ohio Civil Rights Commission (id., PageID #168); and he pursued

appeals. Whatever complaints he might have about the investigation and its

outcome, Plaintiff received due process before the deprivation of any liberty or

property interest. He had notice of the charges against him and had opportunities to

be heard. For these reasons, the Court determines that Plaintiff received procedural

due process and GRANTS Defendants’ motion to dismiss this claim.

II.A.2. Equal Protection

“[T]he Equal Protection Clause gives rise to a cause of action ‘for a class of

one.’” Klimik v. Kent Cnty. Sheriff’s Dep’t, 91 F. App’x 396, 400 (6th Cir. 2004) (citing

Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam)). “Courts

‘generally view’ class-of-one claims with skepticism given the potential to ‘provide a

federal cause of action for review of almost every executive and administrative

decision made by state actors.’” Shavers v. Almont Twp., 832 F. App’x 933, 937 (6th

Cir. Oct. 21, 2020) (cleaned up) (quoting Loesel v. City of Frankenmuth, 692 F.3d 452,

462 (6th Cir. 2012)). Prevailing on this theory presents a “heavy burden” for a

plaintiff. Loesel, 692 F.3d at 462.

Such a claim requires a plaintiff to allege (1) disparate treatment from

similarly situated individuals and that the governmental actors had no rational basis

for their actions; or (2) that “the challenged government action was motivated by

animus or ill-will.” Paterek v. Village of Armada, 801 F.3d 630, 650 (6th Cir. 2015)

(cleaned up); see also Olech, 528 U.S. at 564. “The first element requires that the

plaintiff and the others who were treated differently were ‘similarly situated in all

relevant aspects.’” Johnson v. Morales, 946 F.3d 911, 939 (6th Cir. 2020) (White, J.,

writing for the majority as to the class-of-one claim) (citing EJS Props., LLC v. City

of Toledo, 698 F.3d 845, 865 (6th Cir. 2012)).

Even at the pleading stage, Plaintiff fails to make allegations that meet this

standard. He not only fails to allege disparate treatment but also fails to identify any

other similarly situated individual. Moreover, the complaint lacks claims that

Defendants took discriminatory actions against him. For these reasons, the Court

GRANTS Defendants’ motion to dismiss this claim.

II.B. State-Law Claims

Because the Court dismisses Plaintiff’s federal claims, the Court may, in its

discretion, either retain jurisdiction over Plaintiff’s State-law claims and proceed on

the merits, Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639–40 (2009), or

decline jurisdiction and dismiss the complaint without prejudice to Plaintiff’s right to

pursue the remaining claims in State court, see 28 U.S.C. § 1367(c)(3). “[G]enerally

‘[w]hen all federal claims are dismissed before trial, the balance of considerations

usually will point to dismissing the state law claims.’” Packard v. Farmers Ins. Co.

of Columbus, 423 F. App’x 580, 585 (6th Cir. 2011) (quoting Musson Theatrical v. Fed.

Express Corp., 89 F.3d 1244, 1254-55 (6th Cir. 1996)); see also Juergensen v. Midland

Funding, LLC, No. 5:18-ev-1825, 2018 WL 5923707, at *2 (N.D. Ohio Nov. 13, 2018).

To determine whether to exercise supplemental 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 Univ. v.

Cohill, 484 U.S. 348, 350 (1988).

Because this case is in its infancy, dismissal will not prejudice any party, will

protect the interests of judicial economy, and will allow the State courts to decide the

State-law claims Plaintiffs allege. Therefore, the Court DISMISSES WITHOUT

PREJUDICE Plaintiffs State law claims.

CONCLUSION

For the foregoing reasons, the Court GRANTS Plaintiffs first motion

requesting leave (ECF No. 3) and DENIES Plaintiff's second motion for leave (ECF

No. 32). The Court GRANTS Defendants’ motion to dismiss (ECF No. 22), declines

to exercise supplemental jurisdiction over Plaintiff's State-law claims, and

therefore DISMISSES WITHOUT PREJUDICE Plaintiffs State-law claims.

SO ORDERED.

Dated: February 18, 2025

J.Philip Calabrese”

United States District Judge

Northern District of Ohio

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