William Clowdis, Jr. v. Joel Silverman

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:15-cv-00128-REP. Copies to all parties and the district court/agency [999973392]. Mailed to: William G. Clowdis, Jr. [16-1641]

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UNPUBLISHED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
opinion.

in

part;

vacated

in

part

by

unpublished

per

curiam

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,

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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Unpublished opinions are not binding precedent in this circuit.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
orders

G.

Clowdis,

granting

the

Jr.,

appeals

Defendants’

the

court’s

to

motions

district
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

interfering in state proceedings under certain circumstance.

and
On

appeal, Clowdis challenges the Younger abstention on numerous
grounds

and

improper.

asserts

that

dismissal

of

Ryals

and

Dixson

was

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.
No.

3:15-cv-00128-REP

Clowdis

asserts

functional

that,

state

inappropriate.

(E.D.

Va.

for

May

5,

several

proceeding,

Clowdis v. Silverman,
2016).

reasons,

rendering

In

addition,

there

Younger

is

no

abstention

Clowdis first contends that the Virginia Medical

Board (“Board”) blocked his state appeal by failing to forward
the required record to the court.
brief,
record.

Clowdis

admits

that

the

However, in his informal

Board

has

now

provided

his

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

Clowdis’s
preclusive

the

claim

assertion
to

the

on

that
state

the

merits.”).

the

district

proceeding,

he

Finally,
court’s
is

regarding

ruling

mistaken.

was
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,

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Clowdis

avers

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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

proceedings is sufficient.

review

of

the

administrative

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

constitutional violations.
Inc.,

481

U.S.

1,

12

state

proceeding

may

rectify

any

See, e.g., Pennzoil Co. v. Texaco,

(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

abstention

was

proper

on

in

his

Clowdis’s
5

state
claims

appeal,
that

the

Younger
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

subsidiaries

corporation
sue

in

cannot

federal

court

avoid
when

Younger
federal

by

having

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

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the

Quackenbush
(“[W]e

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running
v.

have

of

Allstate
permitted

the

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statute

Ins.

Co.,

federal

limitations. 1

of

517

U.S.

courts

706,

applying

730

See
(1996)

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
preclusive effect on Clowdis’s remaining federal claims.

7

have

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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.
the

district

court,

properly denied.

we

For the reasons discussed by

conclude

that

default

judgment

was

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

3

In 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.

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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.

9