Terry v. Kennedy

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

STEVEN TERRY, :

: Case No. 2:24-cv-1200

Plaintiff, :

: Judge Algenon L. Marbley

v. : Magistrate Judge Chelsey M. Vascura

:

SHARON L. KENNEDY, et al. :

:

Defendants. :

OPINION & ORDER

This matter is before this Court on a Motion to Dismiss (ECF No. 4) by Defendants Justice

Sharon L. Kennedy, Justice Patrick F. Fischer, Justice R. Patrick DeWine, Justice Michael P.

Donnelly, Justice Melody J. Stewart, Justice Jennifer Brunner, Justice Joseph T. Deters

(“Defendant Justices”), and the Supreme Court of Ohio (collectively “Defendants”). For the

reasons set forth below, the Motion is GRANTED in part and DENIED in part. The Motion is

granted as to Plaintiff’s claims against the Supreme Court of Ohio and the Defendant Justices in

their individual capacities. The Motion is also granted as to the excessive fines, and denial of

access to courts, claims. The Motion is denied with respect to the substantive due process claim

for deprivation of liberty and the equal protection claim against Defendant Justices in their official

capacities.

I. BACKGROUND

Plaintiff, Steven Terry, brings this action against Defendants to challenge the

constitutionality of Ohio Gov. Bar. R. V, Section 12(B) (the “Disbarment Rule”). Under the

Disbarment Rule, a person who is disbarred, resigns with discipline pending, or retires from the

practice of law will not be readmitted to the practice of law in Ohio. Plaintiff argues this rule

compared to other jurisdictions “stands in stark contrast”1 by not recognizing the right to

rehabilitation and not allowing disbarred people to be reinstated. (ECF No. 12 at 1).

Plaintiff, an African American male, is a former judge of Cuyahoga County Common Pleas

Court. (ECF No 1 ¶ 23). This came after a notable career. Plaintiff, admitted to the Ohio bar in

1989, served as an Assistant Municipal Prosecutor for the City of Akron, Assistant Cuyahoga

County Prosecutor, Chief Counsel for the Law Department of the City of Cleveland, Assistant

Director for the Public Safety Department, and Director of Justice Affairs Department for

Cuyahoga County. (Id. ¶¶ 21, 22).

In April 2007, Plaintiff was appointed by Governor Ted Strickland to fill an open seat on

the Cuyahoga County Common Pleas Court. (Id. ¶ 23). To retain the position, Plaintiff had to run

for an election in November 2008 and in the process, Plaintiff garnered substantial guidance and

support from an influential politician, Cuyahoga County Auditor Frank P. Russo. (Id.). After

Plaintiff’s appointment to the Cuyahoga County Common Pleas Court, Plaintiff was contacted by

his supporter, Mr. Russo, urging Plaintiff to deny a motion for summary judgment pending before

him. (Id. ¶ 24). Plaintiff did just that. He signed an order to that effect and failed to disclose his

communication with Mr. Russo to the parties. (Id.).

Plaintiff’s conduct led to a five-count federal indictment. (Id. ¶ 25). In June 2011, a jury

found Plaintiff guilty for three counts: (1) conspiracy to commit mail fraud and honest services

mail fraud; (2) mail fraud; and (3) honest services mail fraud. (Id. ¶ 26). Plaintiff was sentenced to

1 In 2014, an Arizona presiding disciplinary judge surveyed the jurisdictions with permanent disbarment rules. At

the time, only five states mandated permanent treatment of disbarment: Ohio, Oregon, New Jersey, Kentucky, and

Indiana. See Hon. William J. O’Neil, In re the matter of Rules 60, 64, and 65, Rules of the Supreme Court of

Arizona, Jan. 10, 2024, https://www.azcourts.gov/Portals/108/Petitions/140009.pdf. In 2024, the New Jersey State

Supreme Court adopted a readmission process for disbarred attorneys. See Press Release, State Supreme Court

Adopts Readmission Process for Disbarred Attorneys (Oct. 15, 2024), https://www.njcourts.gov/press-

releases/2024/10/state-supreme-court-adopts-readmission-process-disbarred-attorneys

sixty-three months incarceration, two years of supervised release, ordered to pay restitution, and

ordered to complete 250 hours of community service. (Id. ¶ 27).

On February 25, 2016, Plaintiff was disbarred from practice in Ohio. (Id. ¶ 28). This

resulted after disciplinary proceedings before the Supreme Court of Ohio. (Id.). In his Complaint,

Plaintiff emphasized that one justice dissented in the decision and recognized “disbarment is the

functional equivalent of the death penalty for a lawyer” and noted the “differing treatment and

discipline issued against other attorneys.” (Id. ¶ 29). Plaintiff also emphasized that this conduct

was part of a “justice-for sale scandal” on the Cuyahoga County Common Pleas Court for which

another judge, Bridget McCafferty, was also indicted and convicted. (Id.). Rather than being

permanently disbarred, Ms. McCafferty was indefinitely suspended. (Id.). Plaintiff claimed, “[t]he

only discernible difference between the two cases is that Ms. McCafferty is a Caucasian female,

and Plaintiff is an African American male.” (Id.). Similarly, former Attorney General of Ohio

Marc Dann entered an Alford plea to the charge of soliciting improper compensation and pled

guilty to fling false financial disclosures. Mr. Dann only received a six-month suspension of his

law license which is now reinstated. (Id. ¶ 30; ECF No. 4 at 15).

Since being disbarred, Plaintiff asserted he worked to rehabilitate himself and serve his

community. (Id. ¶ 38). On January 19, 2024, he sought reinstatement and filed a Motion to Vacate

Judgment, Or Alternatively, Motion for Waiver of Gov. Bar. R. V(12)(B). (Id. ¶ 39). On March 4,

2024, Chief Justice Sharon L. Kennedy denied the order with no substantive opinion. (Id.).

On March 15, 2024, Plaintiff brought this case against the Supreme Court of Ohio and its

justices in their official and individual capacities. (ECF No. 3). Plaintiff alleges the Disbarment

Rule violates the Fourteenth Amendment Due Process Clause by depriving those disbarred of the

fundamental right to practice law, their liberty interest in pursuing a chosen profession, and

property interest in their law license. (Id. ¶¶ 51, 52). He also alleges the rule violated the

Fourteenth Amendment Equal Protection Clause by treating those disbarred differently from

applicants to the Bar of Ohio with criminal records or those who are indefinitely suspended. (Id. ¶

64). Plaintiff also brings a claim under the Eighth Amendment for excessive fines and the First

and Fourteenth Amendments for denial of access to courts. (Id. ¶¶ 68-76). Plaintiff seeks

prospective injunctive and declaratory relief. (Id. ¶¶ A-E; ECF No. 12 at 3). Relief sought includes

a declaration that the Disbarment Rule is unconstitutional and that those disbarred may petition

the Supreme Court of Ohio for reinstatement. (Id. ¶¶ A-C).

Defendants moved to dismiss under Fed. R. Civ. P. 12(b)(6) and 12(b)(1). (ECF No. 4).

Defendants argue Plaintiff’s claims are time-barred, the individual capacity claims are barred by

judicial immunity, the Supreme Court of Ohio is not sui juris and is not subject to suit, and Plaintiff

fails to state a claim.

II. STANDARD OF REVIEW

If defendants move for dismissal for both lack of subject matter jurisdiction and failure to

state a claim, the district court is “bound to consider the 12(b)(1) motion first, since the Rule

12(b)(6) challenge becomes moot if [the] court lacks subject-matter jurisdiction.” Moir v. Greater

Cleveland Reg’l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990) (citing Bell v. Hood, 327 U.S.

678, 682 (1946)). Even where the merits question is more readily resolved and the prevailing party

on the merits would be the same as the prevailing party were jurisdiction denied, it is improper to

decide the merits of a case before finding jurisdiction. Steel Co. v. Citizens for a Better Env’t, 523

U.S. 83, 93-94 (1998).

A party may move for dismissal of an action based on lack of subject-matter jurisdiction

under Rule 12(b)(1). Where a district court’s subject-matter jurisdiction is challenged under Rule

12(b)(1), the plaintiff bears the burden of proving jurisdiction. Rogers v. Stratton Indus., Inc., 798

F.2d 913, 915 (6th Cir. 1986). Normally, dismissal under Rule 12(b)(1) is not on the merits. Id. at

917.

A motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can

be granted “is a test of the plaintiff’s cause of action as stated in the complaint, not a challenge to

the plaintiff’s factual allegations.” Golden v. City of Columbus, 404 F.3d 950, 958–59 (6th Cir.

2005). When evaluating such a motion, “[a]ll factual allegations in the complaint must be

presumed to be true, and reasonable inferences must be made in favor of the non-moving party.”

Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th

Cir. 2008). But the court “need not . . . accept unwarranted factual inferences.” Id. Complaints

must state “more than a bare assertion of legal conclusions to survive a motion to dismiss.” Horn

v. Husqvarna Consumer Outdoor Products N.A., Inc., 2013 WL 693119, at *1 (S.D. Ohio Feb. 26,

2013) (citing Allard v. Weitzman, 991 F.2d 1236, 1240 (6th Cir. 1993)). A plaintiff’s “[f]actual

allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007). The claim to relief must be “‘plausible on its face,’” with

“factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550

U.S. at 570).

III. LAW AND ANALYSIS

A. Rule 12(b)(1)

Plaintiff brought this case against the Supreme Court of Ohio and its justices in their official

and individual capacities. (ECF No. 3). Defendants argue the Complaint should be dismissed due

to lack of subject matter jurisdiction and rely on: (1) absolute judicial immunity for claims against

Defendants in the individual capacity; and (2) the theory that the Supreme Court of Ohio is not sui

juris. (ECF No. 4 at 5).

1. Judicial Immunity

The doctrine of judicial immunity is recognized as necessary for “shielding judges from

collateral attacks challenging a judge's actions taken in her official judicial capacity.” Morgan v.

Bd. of Pro. Resp. of the Sup. Ct. of Tenn., 63 F.4th 510, 518 (6th Cir. 2023). “This immunity is

absolute: all of a judge's actions taken in an official judicial capacity are immune from suit.” Id.

Generally, judicial immunity provides that “a judge is immune from a suit for money damages.”

Mireles v. Waco, 502 U.S. 9, 9 (1991). Moreover, “[j]ust as a plaintiff cannot sue a defendant in

his official capacity for money damages, a plaintiff should not be able to sue a defendant in his

individual capacity for an injunction in situations in which the injunction relates only to the

official's job, i.e., his official capacity.” Cmty. Mental Health Servs. of Belmont v. Mental Health

& Recovery Bd., 150 F. App'x 389, 401 (6th Cir. 2005). There are two circumstances in which

judicial immunity does not apply: (1) if the judge's actions were non-judicial; or (2) if the judge

performed the actions in the complete absence of all jurisdiction. Ward v. City of Norwalk, 640 F.

App'x 462, 466 (6th Cir. 2016) (quoting Mireles v. Waco, 502 U.S. at 11–12. “An act is non-

judicial if it is one not normally performed by a judicial officer or if the parties did not deal with

the judge in his official capacity.” Id. (quoting King v. Love, 766 F.2d 962, 965 (6th Cir.1985)).

Plaintiff argues the nature of this action is not judicial because it relates to the Disbarment

Rule rather than a particular court order, thus immunity does not apply. (ECF No. 12 at 6). This

argument is unconvincing. As Defendants explain, actions related to attorney discipline are

completed by Defendants as duties of their judicial capacity. (ECF No. 4 at 5). See, e.g., Purola

v. Hall, No. 2:22-cv-3885, 2023 U.S. Dist. LEXIS 30752, at *9 (S.D. Ohio Feb. 23, 2023)

(disagreeing with argument that Supreme Court of Ohio Justice "was not acting as a judge" in

disciplinary action which was the responsibility of the Supreme Court of Ohio under Ohio

law). Under Ohio law, the Ohio Supreme Court’s Justices have original jurisdiction over the

“[a]dmission to the practice of law, the discipline of persons so admitted, and all other matters

relating to the practice of law. Ohio Const. art. IV, §2(B)(1)(g). Plaintiff has failed to allege any

facts suggesting that Defendants were not acting in their official capacity.

Plaintiff similarly fails to provide any authority to support pursuing claims against

Defendants in their individual capacity. Plaintiff references Raymond v. O'Connor, 526 F. App’x.

526 (6th Cir. 2013). In Raymond, the court granted a Rule 12(b)(6) motion to dismiss a claim

pertaining to a plaintiff’s challenge of the procedures governing admission to the Ohio bar without

examination. Raymond, 526 F. App'x at 527. Plaintiff argues Raymond demonstrates that immunity

does not apply when challenging a rule because “the court proceeded to analyze the

constitutionality of the challenged rules and practices of the Supreme Court of Ohio.” (ECF No.

11 at 6). Raymond is not controlling here. The court does not distinguish between claims brought

against a defendant in their official or individual capacity. The defendant in Raymond did not raise

a Rule 12(b)(1) motion based on absolute judicial immunity, so the question was not before the

court to review while deciding the Rule 12(b)(6) motion.

Here, the relief Plaintiff is requesting is in connection with the Defendants in their official

capacities. Accordingly, judicial immunity precludes Plaintiff's claims against Defendant Justices

in their individual capacities. Thus, the Motion is GRANTED with respect to those claims.

Additionally, with respect to Defendants’ official capacity, injunctive relief is not available

for Plaintiff. Plaintiff argues that immunity does not apply for §1983 injunctive relief. (ECF No.

12 at 7). The plain language of § 1983 allows suits for injunctions only after a litigant has sought

a declaratory judgment. Ward, 640 F. App'x at 467. Under the 1996 amendments to the statute,

injunctive relief “shall not be granted” against “a judicial officer for an act or omission taken in

such officer's judicial capacity . . . unless a declaratory decree was violated or declaratory relief

was unavailable.” 42 U.S.C. § 1983. Plaintiff cannot seek an injunction against Defendants without

first seeking declaratory judgment. Plaintiff fails to allege that a declaratory decree was violated

or that declaratory relief was unavailable as such the injunctive relief is barred. See, e.g., Ward,

640 F. App'x at 467 (affirming district court’s dismissal of injunctive relief claims when the

plaintiff’s complaint requested declaratory and injunctive relief against a judicial officer based on

§ 1983 without first seeking declaratory judgment). Defendant’s Motion is GRANTED as to

Plaintiff’s request for injunctive relief.

2. Eleventh Amendment

The Eleventh Amendment bars “any suit in law or equity, commenced or prosecuted

against” a state. U.S. Const. amend. XI; Cimerman v. Cook, 561 F. App'x 447, 449 (6th Cir. 2014).

Nonetheless, there is an exception, the Ex parte Young doctrine, permitting official capacity suits

against state officials for injunctive relief to stop violations of federal law. Cimerman, 561 F. App'x

447, 449 (citing Ex parte Young, 209 U.S. 123 (1908)). This exception allows plaintiffs to seek

prospective relief to end a continuing violation of federal law. Accordingly, the prospective relief

Plaintiff seeks is not precluded.

Defendants argue that to the extent Plaintiff’s claims challenge his disbarment, they are

retrospective and precluded by the Eleventh Amendment and should be dismissed for seeking

retrospective relief. (ECF No. 13 at 7). Defendant specifically argues Plaintiff’s equal protection

claim challenges the grounds of his disbarment and thus the only available relief is recission of his

permanent disbarment. (ECF No. 13 at 7). The Complaint includes no request for retrospective

relief. Plaintiff’s requested declaratory relief includes:

A. A declaration that the Disbarment Rule is in violation of the United States

Constitution and cannot be enforced.

B. A declaration that persons disbarred by order of The Supreme Court of Ohio

may petition The Supreme Court of Ohio for reinstatement, and that the petition

will be heard in the same manner and under the same standards as persons who

The Supreme Court of Ohio indefinitely suspended.

(ECF No. 3).

Ultimately, Plaintiff seeks declaration that the Disbarment Rule violates the Constitution.

The declaration sought falls squarely within the Ex parte Young doctrine. Thus, sovereign

immunity does not preclude Plaintiffs' declaratory judgment claims. See Ward, 640 F. App'x at

468.

3. Sui Juris

Defendants also argue that any claims against the Supreme Court of Ohio must be

dismissed because “Ohio Courts are not sui juris and are not eligible to sue or be sued absent

specific statutory authority.” (ECF No. 4 at 6-7). Indeed, this Court previously recognized that

“[u]nder Federal Rule of Civil Procedure 17(b)(3), the capacity to sue or be sued in federal court

is determined by the law of the state in which that court is located. The Supreme Court of Ohio

has held that, absent statutory authority, Ohio courts are not sui juris.” Williams v. Franklin Cnty.

Mun. Ct., No. 2:10-CV-1155, 2011 WL 13160383, at *3 (S.D. Ohio Aug. 22, 2011). Plaintiff has

not identified any authority to permit the Supreme Court of Ohio to be a defendant in this case.

Accordingly, Defendants’ Motion is GRANTED as to claims against the Supreme Court of Ohio.

The fact that the Supreme Court of Ohio cannot be a named defendant in this case has no

bearing on claims against Defendants in their official capacity. See Cimerman, 561 F. App'x at

450. Claims against a defendant in their official capacity “for prospective relief are not treated as

actions against the State.” Id. (citing Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 n.10

(1989)).

B. Motion to Dismiss: Statute of Limitations

What remains are Plaintiff’s claims against Defendant Justices in their official capacity.

Defendants argue that, provided Plaintiff can overcome the jurisdictional bar, Plaintiff’s Complaint

should be dismissed pursuant to Rule 12(b)(6). (ECF No. 4 at 3). Defendants raise the statute of

limitations as a bar to Plaintiff’s Complaint and assert that Plaintiff nonetheless fails to state a

claim under the Fourteenth (due process and equal protection), Eighth (excessive fines), and First

(denial of access to courts) Amendments.

Generally, the statute of limitations is an affirmative defense, and a plaintiff need not plead

the lack of affirmative defenses to state a valid claim. Cataldo v. U.S. Steel Corp., 676 F.3d 542,

547 (6th Cir. 2012) (citing Fed.R.Civ.P. 8(a)). Nonetheless, when the complaint affirmatively

shows that the claim is time-barred, dismissing the claim under Rule 12(b)(6) is appropriate. (citing

Jones v. Bock, 549 U.S. 199, 215 (2007)).

Plaintiff’s claims are brought under 42 U.S.C. § 1983. (ECF No. 3). The statute of

limitations in § 1983 actions is governed by the state personal injury statute of limitations. Wallace

v. Kato, 549 U.S. 384, 387 (2007). In Ohio, federal courts apply a two-year period beginning when

the plaintiff knows, or has reason to know, that the injury providing the basis of the claim has

occurred. Cooey v. Strickland, 479 F.3d. 412, 416-417 (6th Cir. 2007). Courts take “a common-

sense approach” and ask, “to what event should have alerted the typical lay person to protect his

or her rights.” Roberson v. Tennessee, 399 F.3d 792, 794 (6th Cir. 2005) (quoting Hughes v.

Vanderbilt Univ., 215 F.3d 543, 547 (6th Cir.2000)).

Defendants asserted that Plaintiff’s two-year period began after his disbarment on February

25, 2016. (ECF No 4 at 4). On this date, the Disbarment Rule impacted Plaintiff to the extent

alleged in his Complaint, and on that day, Plaintiff had known, or should have known, that he

would be unable to be readmitted to practice law in Ohio. (Id. at 5; ECF No. 13 at 3). Plaintiff,

however, filed his Complaint on March 15, 2024, eight years after the Disbarment Rule applied to

him. (Id. ¶ 31). Plaintiff opposed the application of the two-year period in 2016 for two reasons:

(1) the Disbarment Rule prevents him from seeking reinstatement every day; and (2) Plaintiff did

not seek reinstatement until January 19, 2024, when he filed a Motion to Vacate Judgment which

was not denied until March 4, 2024. (ECF No. 12 at 5-6). While Plaintiff did not expressly address

or provide any authority or support, Plaintiff seems to make an argument that the Disbarment Rule

is a “continuing violation.”

A “continuing violation” may prevent an action from being time-barred. Sharpe v. Cureton,

319 F.3d 259, 266 (6th Cir. 2003). The continuing violation applies when: (1) the defendant

engages in continuing wrongful conduct; (2) injury to the plaintiff accrues continuously; and (3)

had the defendant at any time ceased its wrongful conduct, further injury would have been avoided.

Goldsmith v. Sharrett, 614 F. App'x 824, 827 (6th Cir. 2015). The Sixth Circuit, however, has

noted that the continuing violations doctrine is most commonly applied to Title VII cases and is

rarely extended to § 1983 actions. Id. at 828 (citing Sharpe, 319 F.3d at 267). This Court, as did

the Defendants, will construe Plaintiff’s argument as invoking the doctrine and review its

application to each cause of action in Plaintiff’s Complaint.

1. Substantive Due Process

With respect to Plaintiff’s substantive due process claim for deprivation of a liberty

interest, the application of the continuing violations doctrine is well-taken. Plaintiff has alleged:

(1) a continuous enforcement of an unconstitutional rule that deprives him of a liberty interest

(pursuing a chosen profession); (2) the injury to the Plaintiff is a deprivation of liberty that accrues

continuously; and (3) had Defendants at any time ceased enforcing the rule, further injury would

have been avoided. Defendants argue that the doctrine does not apply because Plaintiff has not

alleged continuing wrongful conduct or an injury inflicting “continuing and accumulating harm.”

(ECF No. 13 at 5). Defendants rely on a few cases this Court finds unconvincing. One case is

Crawford v. City of Detroit, 2022 U.S. App. LEXIS 24057, *6 (6th Cir. 2022). In Crawford, the

plaintiff brought a claim challenging his conviction and the legality of his arrest based on the

defendants’ failure to train officials, and the plaintiff asserted that the action was timely based on

the continuing violations doctrine. Crawford, 2022 U.S. App. LEXIS 24057, at *4. The governing

law imposed a three-year statute of limitations to challenge convictions but plaintiff, convicted in

2006, did not bring his claim until 2021. Id. at *6. The court found plaintiff’s “claims cannot be

deemed timely under the continuing-violation doctrine because the doctrine is triggered by

continuing unlawful acts, rather than by a continued injury, i.e., his incarceration.” Id.

Defendants additionally rely on Hebron v. Shelby Cnty. Gov't, 406 F. App'x 28, 31 (6th

Cir. 2010), for the proposition that the rejection of Plaintiff’s petition for reinstatement is not a

continuing unlawful act that would support the doctrine’s application. (ECF No, 13 at 6). In

Hebron, the plaintiffs brought claims under § 1983 claiming the defendants deprived them of their

property interest in their employment and rank without due process of law. Hebron, 406 F. App'x

at 29–30. The plaintiffs maintained the defendants failed to comply with applicable county code

by failing either to recognize the plaintiffs’ entitlement to reinstatement over other applicants or

their entitlement to immediate reinstatement. Id. at 30. The court noted that the plaintiffs were

informed of a new process used by defendants in 2006 under which defendants would not be

following the reinstatement policy at issue. Id. at 30. The plaintiffs, however, brought their claims

in 2008 after defendants promoted others rather than reinstating the plaintiffs. Id. The court found

that the statute-of-limitations clock began when the plaintiffs knew or should have known their

rights were violated; in other words, when the plaintiffs learned or should have learned that the

defendants would not be following the reinstatement policy. Id. at 31. The court also found that

the promotions were “the effects of any initial violation” rather than a continuing violation. Id. at

31

Both Crawford and Hebron are inapposite here. At issue in Crawford was a claim for injury

resulting from failure to train, and at issue in Hebron was injury resulting from the failure to

comply with relevant code.

Instead, the case sub judice challenges the constitutionality of an ongoing rule enforced

continuously against Plaintiff. Where the claim is challenging an unconstitutional rule rather than

particular conduct, courts have applied the continuing violations doctrine to § 1983 claims. See,

e.g., Kuhnle Bros., Inc. v. Cty. of Geauga, 103 F.3d 516, 520 (6th Cir. 1997) (“A law that works

an ongoing violation of constitutional rights does not become immunized from legal challenge for

all time merely because no one challenges it within two years of its enactment.”). In Kuhnle, for

example, the court applied the continuing violation doctrine to a § 1983 claim when a trucking

company challenged the constitutionality of a county resolution that banned through truck travel

on certain county roads. Id. The plaintiff brought a takings claim, due process claim for deprivation

of property, and a due process claim for deprivation of liberty. Id. at 520–21. The court found that

the takings and deprivation of property claims were time-barred because the action—the taking of

the property and the deprivation of property—happened when the resolution was enacted. Id. The

court distinguished those claims from the deprivation of liberty claim and found that the resolution

deprived the plaintiff “of liberty interests assertedly created by a fundamental constitutional right”

and “[i]f such liberty interests do in fact exist in this case . . . then each day that the invalid

resolution remained in effect, it inflicted ‘continuing and accumulating harm’ on” the plaintiff. Id.

at 521–22. As such, the plaintiff’s claim was not entirely time-barred. Id. at 522.

Turning back to the criteria this Court must consider before applying the continuing

violation doctrine, the court in Kuhnle applied the criteria and found that the continuing violations

doctrine applied to the plaintiff’s deprivation of liberty claim. The invalid through-truck traffic

ban continued after the date of enactment of the resolution at issue, the injury alleged continued to

accrue, and further injury could have been avoided if the defendant had repealed the resolution.

Kuhnle, 103 F.3d at 522. The court held that since the last alleged deprivation was within the

statute of limitations, the action was not time-barred. Id. Similarly here, Plaintiff’s claims are not

time-barred. Plaintiff alleged an unconstitutional rule, the Disbarment Rule, currently enforced by

Defendants; the injury and allegedly unconstitutional act of being permanently disbarred without

opportunity to seek reinstatement is continuing to accrue; and further injury could have been

avoided if the rule was no longer in force. Like the plaintiff in Kuhnle, Plaintiff Terry has alleged

suffering from a new deprivation of constitutional rights every day that the rule is effective, “rather

than merely suffering additional harm from a prior unconstitutional act.” See id.

Defendants argue that, unlike in Kuhnle, there is no fundamental right that creates

Plaintiff’s alleged liberty interest. (ECF No. 13 at 6). While this Court is unconvinced that Plaintiff

has stated a claim for violation of a fundamental right, for the reasons discussed below, this Court

nonetheless finds that Plaintiff has stated a a substantive due process claim for deprivation of

liberty even without also demonstrating the deprivation of a fundamental right. See, e.g., Lawrence

v. Pelton, No. 1:17-CV-289, 2020 WL 6193886, at *7 (W.D. Mich. Sept. 25, 2020), aff'd, No. 20-

2011, 2021 WL 1511664 (6th Cir. Apr. 9, 2021) (finding the right to practice law is not a

fundamental right then applying the rational basis test determining whether the act was arbitrary

or capricious so as to state a viable substantive due process claim). Plaintiff has properly alleged a

“law that works an ongoing violation of constitutional rights” which inflicts a “new injury” each

day that it remains in effect. See Kuhnle, 103 F.3d at 522 (quoting Virginia Hosp. Ass'n v. Baliles,

868 F.2d 653, 663 (4th Cir.1989)).

As such, the complaint does not affirmatively show that the substantive due process claim

for deprivation of a liberty interest is time-barred; thus, dismissing the claim under Rule 12(b)(6)

for this reason is inappropriate. See Cataldo, 676 F.3d 542 at 547.

2. Equal Protection and Denial of Access to Courts

The reasoning for applying the continuing violations doctrine to the substantive due

process claim for deprivation of liberty interests also supports applying the doctrine to Plaintiff’s

claims for equal protection and denial of access to courts. These claims are based on the same

right, the right to choose one’s own profession, and the continued enforcement of an allegedly

unconstitutional rule excluding Plaintiff from exercising the right. (ECF No. 3 ¶¶ 62, 74).

3. Excessive Fines (forfeiture)

The same cannot be said for the excessive fines claim or claim of any deprivation of

property. Returning to Kuhnle as an example, the court found that the takings and deprivation of

property claims were time-barred because the action—the taking of the property and the

deprivation of property—and resulting injury happened when the resolution was enacted. Kuhnle,

103 F.3d at 520–21. Id.

Here, Plaintiff alleges the Disbarment Rule is a punitive forfeiture that violates the

Excessive Fines Clause. (ECF No. 3 ¶¶ 68-72). Indeed, “‘[t]he Eighth Amendment protects against

excessive civil fines, including forfeitures.’” WCI, Inc. v. Ohio Dep't of Pub. Safety, 774 F. App'x

959, 967 (6th Cir. 2019) (quoting Hudson v. United States, 522 U.S. 93, 103 (1997)). Nonetheless,

any alleged excessive fines or forfeiture is on par with the analysis of the takings and deprivation

of property claims in Kuhnle. As this Court has explained, the statute of limitations for § 1983

actions is a two-year period beginning when the plaintiff knows, or has reason to know, that the

injury providing the basis of the claim has occurred. The alleged penalty—the taking of Plaintiff’s

license to practice law—was imposed in February 2016. Plaintiff knew, or should have known,

that the basis for any claim challenging this penalty occurred. Thus, the statute of limitations began

to run in 2016. As such, the excessive fines claim is time-barred. To the extent Plaintiff states a

claim for deprivation of property under the Due Process Clause, the same reasoning applies.

Accordingly, the Motion to Dismiss based on the statute of limitations is GRANTED as

to the Eighth Amendment claim and any deprivation of property claim. The Motion is DENIED

as to the substantive due process claim for deprivation of liberty, equal protection claim, and denial

of access to courts claim. This Court will now turn to the substance of Plaintiff’s claims to

determine whether each is sufficiently alleged in his Complaint.

C. Motion to Dismiss for Failure to State a Claim

1. Substantive Due Process

Plaintiff claims that the Disbarment Rule violates the Fourteenth Amendment due process

clause by depriving those disbarred of the fundamental right to practice law, liberty interests in

pursuing one’s chosen profession, and a property interest in a law license. (ECF No. 3 ¶ 47–52).

Defendants argue the due process claim should be dismissed because Plaintiff has failed allege a

particular constitutional guarantee and failed to allege that the Disbarment Rule is arbitrary or

capricious. (ECF Nos. 4 at 7–11; 13 at 8–11).

Under the Fourteenth Amendment, “[n]o State shall ... deprive any person of life, liberty,

or property, without due process of law.” U.S. Const. amend. XIV, § 1. This due process clause

has both substantive and procedural components. EJS Props., LLC v. City of Toledo, 698 F.3d 845,

855 (6th Cir. 2012). Plaintiff only alleged the substantive component in his Complaint. The

substantive component “‘bar[s] certain government actions regardless of the fairness of the

procedures used to implement them.’” Guertin v. State, 912 F.3d 907, 918 (6th Cir. 2019) (quoting

Daniels v. Williams, 474 U.S. 327, 331 (1986)). Protection is for “those fundamental rights and

liberties which are, objectively, deeply rooted in this Nation's history and tradition, and implicit in

the concept of ordered liberty, such that neither liberty nor justice would exist if they were

sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997). There is a “short” list of

fundamental rights which “includes: the right to marry, to have children, to direct the education

and upbringing of one's children, to marital privacy, to use contraception, to bodily integrity . . .

and possibly the right to refuse unwanted lifesaving medical treatment.” Langston v. Charter Twp.

of Redford, 623 F. App'x. 749, 759 (6th Cir. 2015) (citing Washington v. Glucksberg, 521 U.S.

702, 720 (1997)).

If a fundamental right is implicated, the act is reviewed under the strict-scrutiny test and

will be invalidated unless it is ‘narrowly tailored to serve a compelling state interest.’ Doe v.

Michigan Dep't of State Police, 490 F.3d 491, 500 (6th Cir. 2007) (quoting Reno v. Flores, 507

U.S. 292, 302 (1993)). If a fundamental right is not implicated, courts will utilize rational-basis

review. Id. (citing LensCrafters, Inc. v. Robinson, 403 F.3d 798, 806 (6th Cir. 2005)). Specifically,

the court must ask whether the rule is “rationally related to legitimate government interests.”

Washington v. Glucksberg, 521 U.S. 702, 728 (1997). This standard is highly deferential. Id. at

501.

The right to pursue one’s chosen profession is not an established fundamental right. While

courts have found that the liberty component of the Fourteenth Amendment's Due Process Clause

includes some generalized due process right to one’s chosen profession, the right is subject to

reasonable government regulation. Conn v. Gabbert, 526 U.S. 286, 291–92 (1999) (citing Dent v.

West Virginia, 129 U.S. 114 (1889); Truax v. Raich, 239 U.S. 33, 41 (1915). As such, Plaintiff has

failed to allege a fundamental right was violated.

Plaintiff has, however, stated a substantive due process claim by alleging that the

Disbarment Rule is not rationally related to a legitimate government interest. Although Plaintiff

alleges a violation of a fundamental right in his Complaint, Plaintiff does not argue he has satisfied

the requirements to establish a fundamental right in its opposition to Defendants’ Motion. (ECF

No. 12 at 9–12). Rather, Plaintiff opposes the Motion because the Disbarment rule is irrational and

that “[a] claim for substantive due process requires a violation of a constitutionally protected

interest deprived by arbitrary state action.” (Id. at 10). The parties thus agree that Plaintiff must

allege “the existence of a constitutionally-protected property or liberty interest” and an “arbitrary

and capricious action” to establish a substantive due process claim. Johnson v. Morales, 946 F.3d

911, 932 (6th Cir. 2020). Plaintiff has sufficiently done so.

Plaintiff sufficiently alleged the failure of the Disbarment Rule to meet the standards of

rational-basis review by stating that: “[t]here is no rational justification for an outright ban on the

consideration of reinstatement of Disbarred Persons” and “[t]o arbitrarily and immutably ban the

opportunity to seek reinstatement to the Bar, regardless of a subsequent demonstrated record of

rehabilitation, good conduct, and clean living, is harsh, unremitting, and unconstitutional.” (ECF

No. 3 ¶¶ 54, 58). These allegations, coupled with the facts alleged in the Complaint regarding

permanent disbarment without possibility of reinstatement, established a claim for relief

“‘plausible on its face.” Ashcroft, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). De

Plaintiff’s substantive due process claim for deprivation of liberty is further supported by

case law suggesting that a complete prohibition of the pursuit of one’s profession is less likely to

be found constitutional than a brief prohibition. For example, the Sixth Circuit has noted “it is

only where the defendant's action effectively precludes the plaintiff from practicing his trade with

all employers or customers that the plaintiff's liberty interest in pursuing his occupation is

infringed.” Jackson v. Heh, 215 F.3d 1326 (6th Cir. 2000).

Moreover, in Conn the Supreme Court noted that cases involving a complete prohibition

of the right to choose to follow one's calling have established a claim for due process violations,

while a “a brief interruption” did not rise to the level of a violation of the Fourteenth Amendment.

Conn, 526 U.S. at 292. The plaintiff in Conn was representing a witness testifying before the grand

jury when defendants took plaintiff to a private room to execute a search warrant on plaintiff.

Conn, 526 U.S. at 288–90. The plaintiff brought suit against defendants under § 1983 arguing his

Fourteenth Amendment right to practice his profession was violated when the search warrant was

executed during his client’s testimony. Id. at 289. The Court found plaintiff’s rights were not

violated and noted that the cases relied upon by the plaintiff could not support the allegation that

a right was violated because the cases involved “a complete prohibition of the right to engage in a

calling, and not the sort of brief interruption” alleged by the plaintiff. Id. at 292. (citing Dent , 129

U.S. 114; Truax, 239 U.S. 33; Schware v. Board of Bar Examiners of N. M., 353 U.S. 232, 238–

239 (1957)). One case referenced in Conn is Schware where the Court held a plaintiff’s former

membership in the Communist Party and arrest record relating to union activities did not have a

rational connection to the plaintiff’s fitness or capacity to practice law. Schware, 353 U.S. at 238–

39. The Court concluded the “State cannot exclude a person from the practice of law or from any

other occupation in a manner or for reasons that contravene the Due Process or Equal Protection

Clause of the Fourteenth Amendment.” Id. Here, Plaintiff has alleged the same: a complete

prohibition from the practice of law that has no rational connection to his fitness to practice law.

(ECF No. 3 ¶ 35, 50). This is sufficient to survive a motion to dismiss.

Defendants’ Motion is accordingly DENIED as to the substantive due process claim.

2. Equal protection

Plaintiff also brings an Equal Protection claim, alleging that the Disbarment Rule violates

the Fourteenth Amendment Equal Protection clause by allowing some people to practice law upon

proof of rehabilitation or present fitness and moral character but denying that opportunity to those

disbarred. (ECF No. 3 ¶ 65).

To state an Equal Protection claim, Plaintiff must show: “(1) he or ‘she has been

intentionally treated differently from others similarly situated’; and (2) ‘there is no rational basis

for the difference in treatment.’” United States v. Green, 654 F.3d 637, 651 (6th Cir. 2011) (quoting

Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). “‘Similarly situated’ is a term of art”

and “a comparator” in the situation “must be similar in ‘all relevant respects.’” Paterek v. Vill. of

Armada, Michigan, 801 F.3d 630, 650 (6th Cir. 2015) (quoting United States v. Green, 654 F.3d

637, 651 (6th Cir. 2011)) .Plaintiff alleged that the Disbarment Rule treats those Disbarred

differently than other, similarly situated people—others with criminal records—who were given

an opportunity to rehabilitate and later “demonstrate rehabilitation and present fitness and moral

character.” (ECF No. 3 ¶ 64).

Defendants moved to dismiss the Equal Protection claim based on those identified by

Plaintiff’s as being similarly situated, namely, first time applicants to the bar and those who have

been indefinitely suspended. (ECF No. 13 at 12). Defendants argued that the first-time applicants

are fundamentally different as they have not been offered an opportunity to practice law and

subsequently found to have committed a wrongdoing. (ECF No. 13 at 12). Similarly, Defendants

asserted that the indefinitely suspended individuals Plaintiff identifies are not similarly situated

because they have not been “convicted and sentenced for the same crimes as Plaintiff and their

respective punishments differ accordingly.” (Id.). They were not convicted and sentenced for the

same crimes as Plaintiff and their respective punishments differ accordingly.

At the motion to dismiss stage the plaintiff must simply state “a plausible claim for relief.”

Iqbal, 556 U.S. at 678. While this Court is unconvinced by Plaintiff’s reference to first-time

applicants, Plaintiff’s reference to others who were allowed to practice law, subsequently

committed a wrong doing, and allowed to demonstrate rehabilitation, is sufficient. In his

Complaint, Plaintiff alleged that people who were licensed in Ohio and later obtained a criminal

record, specifically Bridget McCafferty and Marc Dann, had the ability to demonstrate

rehabilitation for reinstatement while those disbarred cannot. (Id. ¶¶ 29, 30). More significantly,

it was alleged that Ms. McCafferty was another judge on the Cuyahoga County Court of Common

Pleas who was indicted and convicted as part of the same justice-for-sale corruption scandal as

Plaintiff. (Id. ¶¶ 29, 30). As Plaintiff alleged, the Disbarment Rule “irrationally preclude[ed]”

people from applying for reinstatement and the rule “arbitrarily and immutably cut off the

opportunity to seek reinstatement.” (Id. ¶¶ 63, 66). These factual allegations are sufficient to

survive a motion to dismiss. Defendants' Motion to Dismiss Plaintiffs' Equal Protection claim is

therefore DENIED.

3. Denial of Access to Courts

In his Complaint, Plaintiff also alleges Defendants denied his right to access the courts in

violation of the First and Fourteenth Amendments. (ECF No. 3 ¶¶ 73-76). “It is beyond dispute

that the right of access to the courts is a fundamental right protected by the Constitution.” Swekel

v. City of River Rouge, 119 F.3d 1259, 1262 (6th Cir.1997) (citing Graham v. National Collegiate

Athletic Ass'n, 804 F.2d 953, 959 (6th Cir.1986)). There are two types of right to access cases:

forward looking and backward looking. Christopher v. Harbury, 536 U.S. 403, 413–14 (2002). A

forward-looking case involves “systematic official action [that] frustrates a plaintiff or plaintiff

class in preparing and filing suits at the present time.” Id. at 413. A backward-looking case involves

an action that precludes certain relief. Id. at 414. To make a claim, a plaintiff must allege that

defendants prevented the filing of a non-frivolous legal claim by alleging suffering an actual injury

to state a claim. Clark v. Corr. Corp. of Am., 113 F. App'x 65, 67–68 (6th Cir. 2004). This means

alleging “that a non-frivolous claim was lost or rejected, or that the presentation of such a claim is

currently being prevented.” Id.

Here, Plaintiff alleges that “Defendants have instructed and continue to instruct the Clerk

of Court for the Supreme Court of Ohio to refuse to accept petitions for reinstatement, thereby

denying Disbarred Persons access to courts for purposes of having a petition for reinstatement

presented and heard.” (ECF No. 3 ¶ 75). There is, however, no available legal claim for Plaintiff,

or disbarred individuals, to make. Plaintiff has provided no support or legal authority for this Court

to consider or find otherwise. As such, Plaintiff has failed to allege “that a non-frivolous claim was

lost or rejected, or that the presentation of such a claim is currently being prevented.” Clark, 113

F. App’x at 67-68.

Thus, plaintiff failed to state a cognizable denial of access to courts claim and Defendants’

Motion with respect to the claim is GRANTED.

IV. CONCLUSION

Accordingly, Defendants’ Motion to Dismiss (ECF No. 4) is GRANTED in part and

DENIED in part. The Motion is DENIED as to the Fourteenth Amendment substantive due

process claim for deprivation of liberty and the equal protection claim against Defendant Justices

in their official capacity. With respect to the following, the Motion is GRANTED, and the claims

are DISMISSED:

e Claims against the Supreme Court of Ohio

e Claims against Defendant Justices in their individual capacity

e Eighth Amendment claim for excessive fines (third cause of action)

e First Amendment claim for denial of access to courts (fourth cause of action)

e Any claim for injunctive relief

IT IS SO ORDERED.

UNITED STATES DISTRICT COURT JUDGE

DATED: March 28, 2025

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