William Clowdis, Jr. v. Joel Silverman

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1641
WILLIAM G. CLOWDIS, JR.,
Plaintiff – Appellant,
v.
JOEL JEREMY SILVERMAN, M.D.; MCV ASSOCIATED PHYSICIANS,
d/b/a MCV Physicians; WILLIAM L. HARP, M.D.; JENNIFER L.
DESCHENES, J.D., M.S.; LORETTA S. HOPSON-BUSH; DEPARTMENT
OF HEALTH PROFESSIONS, VIRGINIA BOARD OF MEDICINE; THE
VIRGINIA HEALTH PRACTITIONER’S MONITORING PROGRAM; NATIONAL
PRACTITIONER DATABASE; VIRGINIA COMMONWEALTH UNIVERSITY;
COMMONWEALTH OF VIRGINIA; VIRGINIA COMMONWEALTH UNIVERSITY
HEALTH SYSTEM; AMY STEWART; SANDRA WHITLEY RYALS; RENEE S.
DIXSON; SHERRY FOSTER, R.N.,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:15-cv-00128-REP)
Submitted: November 10, 2016 Decided: November 22, 2016
Before TRAXLER, AGEE, and WYNN, Circuit Judges.
Affirmed in part; vacated in part by unpublished per curiam
opinion.
William G. Clowdis, Jr., Appellant Pro Se. Rodney Kyle Adams,
LECLAIR RYAN, PC, Richmond, Virginia; Shyrell Antwinique Reed,
LECLAIR RYAN PC, Charlottesville, Virginia; Erin Laura Barrett,
James Edward Rutkowski, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia; Elizabeth Wu, Assistant United
States Attorney, Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
William G. Clowdis, Jr., appeals the district court’s
orders granting the Defendants’ motions to dismiss, denying
Clowdis’s motion for default judgment, and dismissing Defendants
Ryals and Dixson for failure to effect service. The district
court granted the Defendants’ motions to dismiss on the basis of
Younger v. Harris, 401 U.S. 37 (1971), which mandates that a
federal court abstain from exercising jurisdiction and
interfering in state proceedings under certain circumstance. On
appeal, Clowdis challenges the Younger abstention on numerous
grounds and asserts that dismissal of Ryals and Dixson was
improper. We affirm in part and vacate and remand in part.
With regard to the dismissal of Clowdis’s claims for
declaratory and injunctive relief, we affirm substantially for
the reasons stated by the district court. Clowdis v. Silverman,
No. 3:15-cv-00128-REP (E.D. Va. May 5, 2016). In addition,
Clowdis asserts that, for several reasons, there is no
functional state proceeding, rendering Younger abstention
inappropriate. Clowdis first contends that the Virginia Medical
Board (“Board”) blocked his state appeal by failing to forward
the required record to the court. However, in his informal
brief, Clowdis admits that the Board has now provided his
record. Thus, Clowdis presents no reason why the state court
cannot now proceed to rule on his appeal and provide him with
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any relief to which he is entitled. Moreover, even assuming
that the Board’s delay was intentional, Clowdis never requested
relief from the delay from either the state court or the Board,
and he does not allege any intentional delay on the part of the
court. Accordingly, his issue is with the Board rather than the
state proceeding itself. As such, Clowdis’s argument does not
show that the state proceeding is not adequate.
We conclude similarly regarding Clowdis’s argument that the
Board improperly found certain challenges waived by his failure
to timely appeal. The state court can decide the issue, and a
disagreement with a legal ruling does not support an argument
that a state proceeding is nonfunctioning. See Duty Free
Shop v. Administracion De Terrenos, 889 F.2d 1181, 1183 (1st
Cir. 1989) (holding that a party who is “already engaged in a
state proceeding, cannot ordinarily obtain a hearing in federal
court on its federal claim simply because it believes the state
will reject the claim on the merits.”). Finally, regarding
Clowdis’s assertion that the district court’s ruling was
preclusive to the state proceeding, he is mistaken. The
district court declined to assert jurisdiction and, thus, by
definition, the merits were not addressed or ruled upon. In
fact, the district court explicitly noted that the state court
should consider the issues in the first instance.
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Next, Clowdis avers that Younger abstention is
inappropriate because he does not have a reasonable opportunity
to raise his Americans with Disabilities Act (“ADA”),
Rehabilitation Act (“RA”), and constitutional claims in state
court; that some of the Defendants are not parties to the state
action; and that the Board refused to hear his constitutional
concerns. However, even if a federal plaintiff cannot raise his
constitutional claims in state administrative proceedings that
implicate important state interests, his ability to raise the
claims during state judicial review of the administrative
proceedings is sufficient. Kenneally v. Lungren, 967 F.2d 329,
332 (9th Cir. 1992); see also Ohio Civil Rights Comm’n v. Dayton
Christian Schs., 477 U.S. 619, 629 (1986). Moreover, the
Younger doctrine is particularly applicable in a case such as
this where the pending state proceeding may rectify any
constitutional violations. See, e.g., Pennzoil Co. v. Texaco,
Inc., 481 U.S. 1, 12 (1987) (noting that Younger abstention
“‘offers the opportunity for narrowing constructions that might
obviate the constitutional problem and intelligently mediate
federal constitutional concerns and state interests’” (quoting
Moore v. Sims, 442 U.S. 415, 429–30 (1979))). Because Clowdis
may raise constitutional and discrimination challenges to the
suspension of his license in his state appeal, Younger
abstention was proper on Clowdis’s claims that the Board’s
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suspension of his medical license violated his constitutional
and federal rights and his related request for injunctive and
declaratory relief on these issues. See Phillips v. Virginia
Bd. of Med., 749 F. Supp. 715, 723-24 (E.D. Va. 1990); see also
Lebbos v. Judges of Superior Court, 883 F.2d 810, 815 (9th Cir.
1989) (holding that opportunity to raise federal contentions as
defenses is sufficient). Moreover, the fact that the parties
are not identical does not change this conclusion, given the
fact that all of the claims are intertwined. See Cedar Rapids
Cellular Tel., L.P. v. Miller, 280 F.3d 874, 882 (8th Cir. 2002)
(noting that corporation cannot avoid Younger by having
subsidiaries sue in federal court when federal relief could
obstruct enforcement of any state court remedy); Spargo v. N.Y.
State Com’n on Jud. Conduct, 351 F.3d 65, 81–84 (2d Cir. 2003)
(finding that Younger applies to persons not parties in state
proceeding when right asserted is purely derivative of rights of
defendant in state proceeding).
However, Clowdis also sought damages for the alleged
violation of his constitutional rights, as well as damages for
the alleged violations of the ADA and the RA. If damages are
not available in the state proceeding, a stay is appropriate to
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avoid the running of the statute of limitations. 1 See
Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 730 (1996)
(“[W]e have permitted federal courts applying abstention
principles in damages actions to enter a stay, but we have not
permitted them to dismiss the action altogether”). Here, the
Defendants do not appear to dispute that ADA/RA relief would not
be available during the state proceeding, but the district court
did not address the issue. The distinction between damage and
other claims for relief was also not addressed. Thus, “the
proper course of action in the face of such uncertainty is for
the District Court to retain jurisdiction and stay the damages
claims pending the outcome of the state litigation. If
[Clowdis] does not present [his] damages claims in the state
proceeding, or if they are presented and disallowed in that
forum, the claims may then be litigated in the District Court.”
Addiction Specialists, Inc. v. Twp. of Hampton, 411 F.3d 399,
414 (3d Cir. 2005). Accordingly, we vacate the dismissal of
Clowdis’s claims for damages and remand with instructions to
stay adjudication until the state proceeding is concluded. 2
1 We note that Appellees assert that Clowdis’s current
claims are already barred by the statute of limitations. We do
not decide this issue.
2 We recognize that the state court rulings may have
preclusive effect on Clowdis’s remaining federal claims.
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Finally, Clowdis challenges the failure to enter default
judgment against Ryals and Dixson and the dismissal of these
defendants for failure to serve. For the reasons discussed by
the district court, we conclude that default judgment was
properly denied. As far as the dismissal of these parties,
under Fed. R. Civ. P. 4(m), if a plaintiff is not diligent and
fails to serve the complaint in a timely manner, the case shall
be dismissed without prejudice. The “without prejudice”
condition permits a plaintiff to refile the complaint as if it
had never been filed. Thus, Clowdis is free to refile and
properly serve these Defendants. While Clowdis asserts that he
was entitled to rely on the Attorney General’s appearance, the
record does not contain proof of service against Ryals or
Dixson, as it does for the other Defendants, and both Ryals and
Dixson stated that they had never been served in their response
to Clowdis’s motion for default judgment. Thus, Clowdis was on
notice of his failure to perfect service, and we affirm the
dismissal of these Defendants.
For the foregoing reasons, 3 we affirm the district court’s
order dismissing Clowdis’s claims for injunctive and declaratory
3In addition, we decline to address whether the district
court failed to properly liberally construe Clowdis’s pro se
filings, as we find the construction of the filings would not
have altered the district court’s rulings. In addition, Clowdis
has requested the protection of the “mailbox rule,” with regard
(Continued)
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relief. However, we vacate the dismissal of his claims for
damages and remand with instructions to stay these claims until
resolution of Clowdis’s state appeal. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED IN PART;
VACATED IN PART
to certain district court filings. However, Clowdis is not a
prisoner, and thus, the mailbox rule is inapplicable.
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