NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 13a0480n.06 No. 12-4073 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT DOUGLAS J . RAYMOND, Plaintiff-Appellant,

v. MAUREEN O’ CONNOR, et al., Def endants-A

ppellees. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE SOUT HERN DI STRI CT OF OH I O

BEF ORE: MERRI TT, CL AY, and D ONAL D, Circuit J udg es.

PER CURI AM. Doug las J

. Ray mond appea ls the di strict court’s judgment dism issing his complaint filed under 42 U.S.C. § 1983 for failure to state a c laim. As set forth below, w e af firm. Ray mond br oug ht this lawsuit ag ainst the justices of the Ohio Supreme Court, challeng ing the con s t i t u t ionality of t heir “rules, reg ulations, policies, proce dures and prac tices” gove rning the admission to prac tice law in Ohio without examination

. R aym o n d, a resident of Colorado, was 1 admitted to prac tice law in Colorado by examination, and in Michig an and Missouri without

ex ami nation. Ray

mond subsequently applied for admission to prac tice law in Ohio wi t h o u t

Ray mond previously challeng ed the justices’ decision to deny h i m ad m ission to prac tice 1 law in Ohio without exam i n at i o n . We dismiss ed Ray mond’s as-a

pplied challeng e for lack of jurisdiction pursuant to the Rooke r-Feldman doctrine, but a cknowledg ed that he could, at another time, bring “a g ener al [facial] challeng e to th e ru l es an d prac tices of the Ohio Supreme Court reg ard i n g i t s consideration of applications for admission to prac tice law without examination.” Raymond v. Moye r , 501 F.3d 548, 555 (6th Cir. 2007). Acc ording ly , we consider only Ray mond’s g ener ally applicable alleg ations.No. 12-4073

Raymond v . O’Connor

e xa mi n a ti o n . Wit hout explanation, the Ohio Supreme Court denied Ray mond’s applications in 2005 and ag ain in 2009. Ray mond filed a complaint seeking a decla ratory judgme nt along with a motion for summary judgme nt, asser

ting that the justices’ “rule s, reg ulations, policies, proce dures an d p rac tices” in g ranting and deny ing applications for admission to pr a c ti c e la w in O h io w it

h o ut e x amination violate: (1) the Due Process Clause and (2) the Equal Protection Clause of the Four teenth Amendment, and (3) the Privilege s and I mmuniti es Clause of Article I V, Section 2 of the U.S. Constit ution. The justices filed a motion to dismiss Ray mond’s complaint for failure to state a claim, which the district court g rante d. This timely appea l followed. We revie w de novo the dismiss al of Ray mond’s complaint for failure to state a claim under Fe dera l Rule of Civil Procedur e 12(b)( 6). See Handy- Clay v. City of Mem phis, Tenn ., 695 F.3d 531, 538 (6th Cir. 2012). “I n revie wing a motion to dismiss , we must acc ept non-conc lusory alleg ations of fac t in the complaint as true and deter mine if the plaintiff has stated a plausible claim for relief .” Orton v. Johnny ’s Lunch Franchise, LLC , 668 F.3d 843, 846 ( 6th Cir. 2012). “To make out a claim for a violation of proce dural due proce ss, the plaintiff has the burden of showing that (1) he had a life , liberty , or proper ty interest protec ted by the Due Process Clause; (2) he was deprive d of this protec ted interest; and (3) the state did not aff ord him ad equate proce dural rig hts prior to depriving him of the proper ty interest.” EJS Props., LLC v. City of Toledo , 698 F.3d 845, 855 (6th Cir. 2012) (citation and internal quotation marks omitted). The district court dismiss ed Ray

mond’s due proc ess claims on the g rounds that he failed to a lleg e sufficie nt fac ts to support a constitutional deprivation of a protec ted prope rty

or liberty interest.

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Raymond v . O’Connor Whil e there i s no liberty interest in bar admission witho u t examination, a st ate may cre ate

a proper ty interest in the rig ht. See, e.g. , Leis v. Flynt, et al. , 439 U.S. 438, 441–43 (1979) (holding
t h at t h er e wa s no proper ty interest in the rig ht of admission pro hac vice beca use Ohio had n o t

cre ated an interest). Property interests “ar e cre ated and their dimensions are define d by exis ting rules

or understanding s that stem from an independe nt source such as state law.” Bd. of Rege nts of State Colls. v. Roth , 408 U.S. 564, 577 (1972). Rule I , Section 9 of the Ohio Supreme Court’s Rules for the Gover

nment of the Ba

r o f Oh i o ad d resse s admission to prac tice law in Ohio without examination. S ubsection (F )(1) then provides: The Court shall review t h e ap p l i cation and in its sole discretion shall approve or disapprove the applicatio n . I n re aching its decision, t he C ourt shall consider both of the following : (a) Whether the a

pplicant has met the r equire ments of division (A) of this section; (b) Whether the applicant’ s past prac tice of law is of such char acte r, descr iption and rec ency as shall satisfy the Court that the applicant curr ently possesses the leg al skills deeme d adequate for admission to the prac tice of law in Ohio without examination. Ohio Sup. Ct. Gov. Bar R. I (9)( F) (1) (emphasis added)

. “[W ]here the rules o f t h e Oh i o Supreme Court e x pressly consig n the authority to approve ” applications for admission without examination
to the court’s discretion, an attorney cannot claim entitlement to such admission. Leis , 439 U.S. at 442–43. Ray

mond has failed to cite any authority establishing a proper ty in admission without examination. Nor has he alleg ed a depriva tion of a liberty interest. The Supreme Court has held that “the

re q uirements of proce dural due proce ss must be met befor e a State can exclude a per s o n fr o m prac ticing law.” W

illner v. Comm. on Character & Fitness , 373 U.S. 96, 102 (1963) (citing Schware

v. Bd. of Bar Examine rs , 353 U.S. 232, 238–39 (1957))

. But Ray mond is not excluded from

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Raymond v . O’Connor prac ticing law in Ohio—he may still take and pass the Ohio bar examination. See Conn v. Gabbert , 526 U.S. 286, 291–92 (1999) (distinguishing case s that “dea l with a complete prohibition of the rig ht to eng ag e in a c alling” ). I n support of his due proce ss claim, R ay m o n d also asser

ted that the justices’ denial of his applications for admission without e x amination prec ludes him f rom appea

ring pro hac vice in any Ohio court. Under Rule XI I (2)( A)(2) of the Ohio Supreme Court’s Rules for the Gover nment of the Ba r of Ohio, “[a] tribunal shall not g rant permission to a ppear pro hac vice to an attorney who has

. . . been denied admission without examination.” Howeve r, we have rec og nized that “an attorney ’s interest in appea

ring p r o h a c vice [does] not constitute a liberty or proper ty rig ht under the Constit ution.” D.H. Ove rmye r Co. v. R o b son , 750 F.2d 31, 33–34 (6th Cir. 1984) (citing Leis ). Ray mond asser

ts on appea l that, “while it may be true that no attorney has a due proce ss rig ht to pro hac vice status, once such status is g rante d, attorney s must rec eive some modicum of du e p roce ss b ef ore it is revoke d.” Belue v. Leventhal , 640 F.3d 567, 577 (4th Cir. 2011) (interna l ci t at i o n s omitted). I n his complaint, Ray mond alleg ed that he was prohibited from appea ring pro hac vice in

a case pending befor e the Ohio Supreme Court despite the fac t that he had b ee n gra n t ed leave to ap p ea r pro hac vice in that case ear lier. The Ohio Supreme Court’s order , ref ere nced i n t h e complaint and attache d to Ray mond’s aff

idavit, ref lects that his pro hac vice status was not revoke d. I nstead, Ray

mond was stricken from the appea l beca use he failed t o fi l e a t i mely motion for admission pro hac vice pursuant to Rule 1.2 of the Ohio Supreme Court’s Rules of Practice

. We are prec luded under the Rooke r-Feldman doctrine from considering this as-a pplied challeng e to a state court de cision. See R aymond v . Moye r , 501 F.3d 548, 551–55 ( 6th Cir. 2007).

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Raymond v . O’Connor The Privilege s and I mmuniti es Clause ba rs “discr imination aga inst citiz ens of other States wher e there is no substantial rea son for the discrimination bey ond the mere fac t that they are citizens of other States.” Toomer v. W itsell , 334 U.S. 385, 396 (1 9 48). I n support of his privileg es and immunit ies claim, Ray

mond alleg ed that the justices “have maintained a policy and pract i ce of apply ing a differ ent and harshe r standard of scrutiny to applications for admission to the prac tice of law in the State of Ohio without examination from non-re sidents than simil arly -situated applications from residents of t he S tate of Ohio for the admi s s i on to the practice of law in the S tate of Ohio.” This asser tion, howeve r, is “devoid of further fac tual enhanc ement.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (interna l quotation marks omitted). Such “[t] hrea dbare rec itals of the elements of a cause of action, supported by mere conclusory statements, do not suffice ” to sur vive a motion to dismiss for failure to state a claim. Id

. Be ca use Ray mond failed to make any specific fac tual alleg ations reg arding the justices’ purported application of a differ ent and harshe r standard of scrutiny to nonresidents than to residents, the district court p ro p er l y h el d that the complaint failed to state a privileg es and immunities claim. Ray mond’s complaint likewise failed to state a claim under the Equal Protection Clause. “To
state an equal protec tion claim, a plaintiff must adequately plead that the g overnme nt [t reats cer tain people] disparate ly as compar ed to simil arly situated persons and that such disparate trea tment either burdens a fundame ntal rig ht, ta rg ets a suspect class, or has no rational basis.” Ctr. for Bio-Ethical Reform, Inc. v. Napolit ano , 648 F.3d 365, 379 (6th Cir. 2011) (interna l quota tion mar ks omitted). “The threshold element of an equal protec tion claim is disparate trea tment; once disparate trea tment is shown, the equal protec tion analy s i s t o b e ap plied is deter mined by the classification used by g overnme nt de cision-maker s.” Scarbrough v. Morgan Cnty. Bd. of E duc ., 470 F.3d 250, 260 ( 6th

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Raymond v . O’Connor Cir. 2006). The complaint’s sole ref ere nce to disparate trea tment is the undevelope d asser tion of a differ ent and harshe r standard of scrutiny might be applied to n o n-re sidents discussed above. Wit hout specific fac tual alleg ations of d i spara te trea tment, the district court proper ly dismiss ed Ray mond’s equal pr otection claim. For the fore g oing rea sons, we aff irm the district court’s dismiss al of Ray mond’s complaint for f ailure to state a

claim.

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