Clowdis v. Silverman et al

Filing 77

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 5/5/2016. Copy mailed to Pro Se Plaintiff. (jsmi, )

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division WILLIAM G. CLOWDIS, JR., M.D., Plaintiff, V. Civil Action No. JOEL JEREMY SILVERMAN, M.D., 3:15CV128 et al., Defendants. MEMORANDUM OPINION This matter is before Defendants' MOTION Defendants' the TO DISMISS MOTION TO DISMISS Court {Docket on Nos. (Docket No. DISMISS DISMISS (Docket (Docket Nos. No. 24, 24, 29), Practitioner Database's MOTION TO DISMISS the reasons stated below, the Commonwealth 55), the VCU and the National (Docket No. 49). For the Commonwealth Defendants' MOTION TO 55), 29), the and Database's MOTION TO DISMISS VCU the Defendants' National (Docket No. 49) MOTION TO Practitioner will be granted in their entirety. BACKGROUND Plaintiff William G. Clowdis, Jr., M.D. ("Clowdis") states that he is a former physician who earned a license to practice medicine and surgery Commonwealth in 1991. in obstetrics (2d Am. Compl., 1 and gynecology Docket No. 15, in the 5, 22, 26). Due to a prolonged illness between 2001 and 2004, voluntarily inactivated his Compl. 22, 26). license beginning in 2001. mental illness symptoms. and while medications, residence (2d under Clowdis that court. (2d Am. placed Compl. in Am. the was resulted Clowdis {2d Am. Clowdis's illness was exacerbated by the use of doctor-prescribed medications and Clowdis induced adverse physical Compl. 23, influence of in a in charge felony 25, diversion 28.). 24). these involved 24, a that an During prescription incident in his at Colorado his state The Colorado state court program, whereby his felony conviction would be erased contingent upon successful completion of a period of court supervision. (2d Am. Compl. SIf 25, 28 n.2). Clowdis was taken off his prescription medications in 2004, and his treating physician cleared him to return to the practice of medicine in 2005. Colorado state (2d Am. court Compl. SI 26). diversion program, Clowdis which felony charge being dismissed with prejudice. 28) . While being weaned off his completed his resulted (2d Am. prescriptions, in his Compl. f Clowdis voluntarily enrolled in a physician health monitoring program in Colorado (2d Am. In program, West known as Compl. f December Clowdis Virginia Colorado Physician Health Program ("CPHP"). Colorado diversion 27). 2006, after completing the received hospital. an offer (2d Am. to Compl. work f as 29). an OB/GYN CHCP could at a not monitor Clowdis once he left Colorado, and requested that Clowdis notify the appropriate monitoring program in Virginia, the state in which he was licensed. (2d Am. Compl. SI 30) . Clowdis disclosed his participation in CPHP to Virginia's Health Practitioner Monitoring Program {''HPMP") under a confidentiality agreement. {2d Am. could participate not Virginia. Compl. SI 30). in HPMP HPMP determined that Clowdis because he resided in West (2d Am. Compl. SI 31). In breach of the confidentiality agreement, HPMP informed the Virginia Board of Medicine Board") about Clowdis's felony conviction. (''the (2d Am. Compl. SI 30). The Board revoked Clowdis's medical license without a hearing on the basis that Clowdis was a convicted felon. {2d Am. Compl. SI 31). The Board also placed a record in the National Practitioner Databank {2d Am. C'NPDB") Compl. Between psychiatric, stating that Clowdis was a convicted felon. SI 39) . 2005 and independent 2010, Clowdis medical, and received competency all of which found him fit to return to practice. SI 41). One ("Silverman") . At Clowdis such review {2d Am. Compl, came from Joel evaluations, (2d Am. Compl. Silverman, Am. Compl. for SI 37). reinstatement Initially, would not reinstate his M.D. SI 41). an unspecified subsequent point between 2007 applied forensic of his medical and 2011, license. (2d the Board informed Clowdis that it license because of Clowdis's history of mental health benefits. problems and (2d Am. Compl. f his past receipt of disability 31). At an unspecified subsequent point between 2007 Clowdis Am. applied Compl. 1 for 42). reinstatement. reinstatement In 2011, of his medical 49). that: or (2d hearing on (2d Am. Compl. ^ 40). Silverman's report played a In its 2011 Order, (1) license. the Board gave Clowdis a substantial role in the decision-making process. f and 2011, (2d Am. Compl. the Board made formal findings of fact Clowdis showed no evidence of current psychopathology substance abuse been dismissed. and (2) the Nevertheless, felony the charge Board made that Clowdis was a convicted felon. against a finding him had of law On this basis, ^ the Board stayed Dr. Clowdis's suspension, contingent on his participation in HPMP monitoring. contract required (2d Am. Clowdis's Compl. 1 45). compliance The HPMP monitoring with all HPMP orders, upon penalty of suspension or revocation of his medical license. (2d Am. Compl. ^ was flawed by 46). Although Clowdis asserts that the hearing certain enumerated procedural Clowdis did not appeal the (2d Am. f 30 legal errors, 45). Compl. ruling within the and day deadline. ^ Clowdis asserts that the substantive and evidentiary standards used in the proceeding were improper. 51) . {2d Am. Compl. n 44, 50- After the 30 day deadline to appeal, that he would not be permitted to HPMP informed Clowdis work restricted Clowdis from leaving Virginia. 48). At about evaluator, 50) . this time, Silverman, Clowdis indefinitely and {2d Am. Compl. also that his (2d Am. Compl. ^ 49- suspended participation in HPMP because he Clowdis was the CEO of HPMP. learned 47- could not comply with HPMP's prohibition on employment and because he disagreed with the terms of HPMP's monitoring contract. Compl. (2d Am. SISI 52-54) . As a convened result a new of Clowdis's hearing, which non-participation, Clowdis asserts the was Board flawed by certain enumerated procedural and legal errors. (2d Am. Compl. f 55). The Board reinstated Clowdis's suspension. (2d Am. Compl. f 56). Clowdis appealed the Board's decision to the Circuit Court for the City of Richmond (the "Circuit Court"). 56) . The Court, Board with did the result standstill since 2013. Clowdis entities not that certain individuals records litigation (2d Am. Compl. f subsequently and send filed this involved (2d Am. Compl. f to there the has Circuit been at a 56). action with against his a host suspensions. of The first group of defendants includes the Commonwealth of Virginia, the Department Commonwealth of Health University ("the Board"), Professions C'VCU"), Virginia ("DHP"), Virginia Board Medicine of Virginia Health Practitioner Monitoring Program C'HPMP"), Board Executive Director Jennifer Foster, The HPMP Court Executive Director William Harp, Deschenes, case manager Amy Stewart, refers collectively ''Commonwealth Defendants." includes Joel Dr. Physicians, The Silverman to Board Deputy DHP investigator Sherry and Laura these second Hopson-Bush. defendants group as the of MCV ("Silverman"), defendants Associated and Virginia Commonwealth University Health System Authority C'VCUHSA"). defendants as the The Court refers ''VCU Defendants." collectively Finally, to Clowdis these sued the National Practitioner Data Bank {"NBDB"). The dismiss HPMP, Commonwealth on Harp, behalf of Deschenes, Defendants the initially Commonwealth, Foster, filed DHP, and Stewart. the a motion Board, (Docket No. 24). to VCU, The Commonwealth Defendants filed a functionally identical motion to dismiss on behalf of Hopson-Bush after Clowdis Bush. {Docket No. motion to dismiss. to dismiss. 55) . The VCU Defendants served Hopson- filed a separate {Docket No. 29). NPDB filed a separate motion (Docket No. 49).^ 2 Clowdis did not properly serve either Ryals or Dixson, two retired civil servants. {Commonwealth's 0pp. to Pl.'s Mtn. for Default Judgment, Docket No. 69 (''Commonwealth's DJ 0pp."); Pl.'s Reply to Def. Ryals and Dixson's 0pp. to Pl.'s Mtn. for Default Judgment, Docket No. 74). The Attorney General's office mistakenly entered notice of appearance on Ryals and Dixson's behalf. {Commonwealth's DJ 0pp. 3). For reasons stated in an accompanying Order, the Court will deny default judgment against Ryals and Dixson and enter an order dismissing the case as to Ryals and Dixson for lack of service. LEGAL A. Deference To Clowdis's STANDARDS Pro Se Status Clowdis claims that, as a pro se litigant, to liberal construction of his pleadings. to [Commonwealth's] {"Pl.'s Mtn. Commonwealth to Dismiss, 0pp."). Clowdis he is entitled (Pl.'s Resp. Docket is No. in 0pp. 37, correct at that 16) pro se litigants are typically entitled to have their pleadings given a liberal construction. 89, (2007) 94 1147, 1151 See, e.g., (citations (4th Cir. Erickson omitted); 1978). v. Gordon That rule Pardus, 551 U.S. Leeke, 574 F.2d v. applies to pro se litigants because they do not have the assistance of a lawyer in presenting their claims. Clowdis alleges that, reinstatement of his medical completed law school. New York State bar placed on hold [as] (2d Am. Compl. f while waiting for a Board hearing on license between (2d Am. Compl. exam in 2011, SI 35). ''but his 2007 and 2011, he Clowdis passed the bar admission was a result of his suspended medical license." 36). Recently, this Court held that, when a plaintiff asserts in his Complaint that he is a lawyer, "his pleadings are not entitled to the lenient treatment accorded to litigants who are proceeding without the aid of a lawyer." Rashad v. 3:15CV655, (surveying 2016 WL federal 901279, circuit at *2-3 court 7 (E.D. and Va. Eastern Jenkins, Mar. 3, No. 2016) District of Virginia opinions). Most cases considering deference to pro se attorneys involve attorneys who are licensed and practicing in the state in which the federal court sits or are licensed in a neighboring state.^ The Court concludes that it is not the practice or license that is dispositive in the deference typically given to pro se plaintiffs. Rather, substantive and it is procedural the law lack that 654 attorney F.2d was 194, not 198 {2d Cir. entitled to familiarity undergirds leniency shown to pro se plaintiffs. Cty. , of E.g. 1981) special the Harbulak v. {finding that consideration with relative Suffolk pro se because ^ E.g., Andrews v. Columbia Gas Transmission Corp., 544 F.3d 618, 633 {6th Cir. 2008) (finding the district court did not abuse its discretion by denying special consideration to pro se practicing attorneys); Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir. 2001) (''While we are generally obliged to construe pro se pleadings liberally... we decline to do so here because [plaintiff] is a licensed attorney") (citation omitted); Godlove V. Hahn, Bamberqer, (7th Cir. Foreman, 1990) Oswald, (finding and no abuse 903 F.2d 1145, of discretion where plaintiff was a member of the state's bar); Harbulak v. 1148 pro se Suffolk Cty. , 654 F.2d 194, 198 (2d Cir. 1981) (finding that pro se attorney was not entitled to special consideration because plaintiff was a "practicing lawyer who had the means and the knowledge, or at least the ability to obtain the knowledge, to recognize" whether his claims were reasonable); Olivares v. Martin, 555 F.2d 1192, 1194 n.l (5th Cir. 1977) {"[Plaintiff] proceeds pro se in his appeal. We cannot accord him the advantage of the liberal construction of his complaint normally given pro se litigants because he is a licensed attorney.") (citation omitted); Gordon v. Gutierrez, No. I;06cv861, 2006 WL 3760134, at *1 n.l {E.D. Va. 2006) ("Plaintiff represents that she is an attorney, a law school graduate, and a member a neighboring liberal state's construction litigants."). bar. of As such, pleadings she not entitled to ordinarily is afforded pro the se plaintiff was knowledge, a ''practicing lawyer who had the means or at least the ability to obtain the knowledge, recognize" whether his claims were reasonable). represents that he is a state bar examination, that state but Court and the for concludes law school graduate, Because Clowdis that he passed a and that he would have been licensed in the Board's that to Clowdis suspension of his is not entitled license, to the the relative leniency typically shown to pro se plaintiffs.^ B. The Commonwealth Defendants' Because lack of Defendants subject 12(b) (1) matter and Motions under Fed. R. have Civ. to P. Fed. filed R. Civ. both jurisdiction Dismiss 12(b)(6), for P. 12 Motions Motions under Fed. failure to Pharma, AG v. Inc.^ 471 F.3d 544, Marathon Oil Co., ^ However, Sucampo Pharms., 548 526 U.S. as discussed below, Dismiss R. for Civ. state a P. claim the challenge to subject matter jurisdiction asserted in the motion under Rule typically be addressed first. to (4th Cir. 574, 583 12(b)(1) Inc. 2006) v. should Astellas (citing Ruhrqas (1999)). Clowdis's claims are so clearly barred by Younger abstention (in the case of the Commonwealth Defendants and VCU Defendants) or the case-and-controversy bar (in the case of NPDB) that liberal construction of Clowdis's claims would not save his case. This is not a situation where a plaintiff failed to state an element of a cause of action in perfect legalese; rather, the existence of the state court proceeding stands as an immutable bar to relief in this Court, no matter how it is described. The depends evidentiary on whether sufficiency of allegations that States Dept. 1999) 1982)); the the of (citing the also 2 U.S. 687, Va. (E.D. is or a an 60 F. Bain, Moore's See Walker 2002). 2d F.2d 553, 1213, In the case of a 555 the court is ''free to weigh the Va. (4th § Cir. 12.30 [4]; F. facial United (E.D. 1219 230 the factual v. Supp. attack, court must accept the plaintiff's allegations as true. in the case of an attack on the facts on the Practice of Engineers, 12(b)(1) attack on Federal Army Corps, Rule attack Supp. 697 under facial jurisdiction. Army^ v. motions challenge support Crutchfield v. for pleadings, Adams see 695 standard 2d the However, supporting jurisdiction, evidence to determine the existence of jurisdiction" because its ''very power to hear the case" issue. is Velasco at v. Gov't Walker, of 60 Indon, F. 370 Supp. F.3d 2d 392, at 398 555; (4th see Cir. also 2004) ("When a defendant challenges subject matter jurisdiction by way of a motion to dismiss filed under Rule 12(b)(1), the district court may regard the pleadings as evidence on the issue and also may consider evidence outside the proceeding presumptive allegations, not preclude to one for truthfulness and the the the pleadings without summary attaches existence trial judgment."). court to converting Moreover, the plaintiff's of disputed material facts from itself evaluating merits of jurisdictional claims." Walker, 10 60 F. "no for Supp. will the 2d at 555 (quoting Mortensen v. 884, 891 (3d Cir. 1977)). and VCU Defendants through a Rule evaluation of First Fed. Because contest 12(b)(1) the Sav. the the Commonwealth factual motion merits and Loan Ass'n^ of to basis dismiss, the of 549 F.2d Defendants jurisdiction an independent jurisdictional claim is appropriate. In such an evaluation, ''[t]he plaintiff bears the burden of proving that subject matter jurisdiction properly exists in the federal court." F.Supp.2d 289, Biktasheva 294 Preservation Ass'n v. (D. v. Red Md. Cnty. Square 2005); Sports, see also Inc.^ 366 Piney Run Comm'rs of Carroll Cty.^ 523 F.3d 453, 459 (4th Cir.2008). Nevertheless, "[t]he court should grant the 12(b) (1) motion only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Id. at 294 (citation omitted). C. NPDB's Case or Controversy Motion The United States Constitution's ^^case-or-controversy" requirement limits the jurisdiction of the federal court system. U.S. Const. Art III § 2. An issue is unripe, and not fit for review, if ^^it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all." Texas v. United States^ 523 U.S. 296, lack of subject matter 300 (1998). A motion to dismiss for jurisdiction 11 under the doctrine of ripeness is assessed pursuant to the principles of Fed. R. Civ. P. 12(b)(1). E.g., Arc of VA, Inc. v. 2009 WL 4884533, at *3 (E.D. Va. Kaine, No. CIV 3:09CV686, Dec. 11, 2009). A17ALYSIS A. Younger Abstention Bars Clowdis's Claims Against The Commonwealth Defendants And The VCU Defendants The Commonwealth dismissal on grounds. Dismiss, variety (Commonwealth Docket No. Defendants C'VCU's a Defendants Mem. 25 in VCU Mem. in of Mtn. to Both parties For the reasons stated below, and exercise cannot jurisdiction, Commonwealth VCU Defendants' Mtn. to (Docket Mem. Younger jurisdiction 6-8; 30) Younger VCU's VCU the Court finds the arguments over of No. this compelling, case. Absent the Court declines to reach the other procedural and substantive issues VCU of seek application Mem. and substantive Supp. Dismiss (Commonwealth's Commonwealth and seek ("Commonwealth's Commonwealth Mem."); VCU abstention. 13-15). Defendants jurisdictional Defendants' Supp. VCU Mem.")). of and Defendants' raised in the Commonwealth Defendants and briefs. 1. Basic Requirements for Younger Abstention The doctrine of Younger abstention. U.S. 37 (1971), requires that 12 a Younger v. federal Harris, court 401 decline jurisdiction and abstain from interfering in state proceedings where there exists: (1) an ongoing state judicial proceeding, instituted prior to any substantial progress in the federal proceeding; that (2) implicates important, substantial, or vital state interests; (3) and provides an adequate opportunity for the plaintiff to constitutional raise the claim advanced in federal the federal lawsuit. Laurel Sand Cir. 2008) 390 & Gravel, v. Wilson, 519 F.3d 156, 165 {4th (relying on Moore v. City of Asheville^ 396 F.3d 385, (4th Cir. federal Inc. 2005) . Although Younger abstention originated in litigation initiated subsequent to an underlying state criminal case, the Supreme Court "'later carried Younger into the civil arena, and even to administrative Carolina Ass^n of School Adm^rs v. 242 (4th Cir. 2012) 481 U.S. 1 (1986) also Ass'n, Disabato, (relying on Pennzoil Co. South 4 60 F. App'x. v. Texaco, 239, Inc., (extending Younger to civil proceedings); Ohio Civil Rights Common v. (1986) proceedings." Dayton Christian Sch., Inc., 477 U.S. (extending Younger to administrative proceedings)); Middlesex 457 application County U.S. of Ethics 423 Younger disciplinary proceeding) Committee (1982) v. (upholding abstention to Garden State district pending 19 see Bar court's state bar '"The Supreme Court noted that Younger ^ The Supreme Court recently emphasized that Younger abstention applies to only three categories: 13 state criminal prosecutions, was based on concerns 'equally applicable' state interests are to for comity 'civil and federalism proceedings involved[,]' so long as - concerns in which important those proceedings provide the federal plaintiff with 'a full and fair opportunity to litigate at 242 also [its] constitutional claim." Disabato, (quoting Ohio Civil Rights Common, Phillips 719-721 v. (E.D. Virginia Va. Bd. 1990).® 477 U.S. of Medicine, ''Younger 460 F. App'x 74 9 abstention at 627); F. Supp. represents see 715, an "certain civil enforcement proceedings," and civil proceedings "uniquely in furtherance of the state courts' ability to perform their judicial functions." Sprint Comm., Inc. v. Jacobs, 134 S, Ct. 584, 591 (2013). In defining those "certain civil enforcement proceedings," the Court explicitly included "enforcement actions characteristically initiated to sanction the federal plaintiff, i.e. the party challenging the state action, for some wrongful act," as in Middlesex. Id. at 592. As Phillips establishes, Middlesex is the Supreme Court decision most analogous to appeals from decisions of the Virginia Board of Medicine, Phillips, 749 F. Supp. at 721. So long as Middlesex remains well within the boundaries of "certain civil enforcement proceedings," this case also falls well within the boundaries of "certain civil enforcement proceedings," and thus within Younger. ^ A plaintiff faces a long uphill climb in establishing that the state proceedings deprive him of a "full and fair opportunity to litigate [his] constitutional claim." Where all decision-making members of an administrative board have a pecuniary interest which disqualifies them from passing on the issues. Younger abstention is inappropriate. E.g., Gibson v. Berryhill, 411 U.S. 564, 578 (1973). Although in this case Clowdis's alleges that Silverman has a pecuniary interest in the outcome of Clowdis's 2011 Board hearing (2d Am. Compl. f 49), this is easily distinguished from Gibson because (1) Clowdis does not allege that any of the Board members who made the decision to place Clowdis under a HPMP contract had a pecuniary interest in the outcome of the hearing, and (2) Clowdis does not allege that the Circuit Court has had a pecuniary interest in the outcome of the 14 accommodation between a in its own forum adjudication of state's pursuit of important interests and the federal federal rights." interest Telco in Comm'ns, federal Inc. v. Carbauqh, 885 F.2d 1225, 1229 (4th Cir. 1989). In 1990, decision, Judge Ellis, in a thorough and well-reasoned held that state court appeals from Virginia Board of Medicine licensing decisions were subject to Younger abstention. Phillips, 74 9 F. Supp. at 715. Applying the rule set out in Phillips, the Court finds that the three essential requirements for Younger abstention are present in this case. First, Clowdis's initiated in 2013 ongoing state pending appeal (2d Am. Compl. judicial substantial progress" the Circuit Court, 5 56), clearly constitutes ''an proceeding, in this to instituted federal prior proceeding, to any initiated in 2015."^ hearing. Therefore, at the Circuit Court appellate upon which this Court bases its Younger abstention, proceeding there is no allegation of the sort of pecuniary interest which would deprive Clowdis of a full and fair opportunity to litigate his federal claims. Moreover, as discussed in detail subsequently, Virginia's Administrative Process Act explicitly permits litigation of constitutional claims on appeal. ^ In Phillips, the Court deferred where the plaintiff had filed in federal court (1) after the Board proceedings were complete but (2) before taking an appeal to the state circuit court. Phillips, 724 F. Supp. at 724. While the federal court contemplated abstention, plaintiff appealed to the state circuit court, review expressly reserving her federal constitutional claims for in abstained federal from court. hearing Id. any The of 15 federal plaintiff's court nevertheless claims. Id. The Second, Clowdis's pending ''implicates important, As thoroughly appeal substantial, explained in to the Circuit Court or vital state interests." Phillips, the Virginia medical license revocation procedures implicate such interests. It is difficult to imagine a state interest more important than the protection of citizens against the harms of unethical or incompetent practitioners of the healing arts. So it is that Virginia courts have long upheld the constitutionality of the state's regulation of medicine. See Grosso V. Commonwealth^ 180 Va. 70, 21 S.E.2d 728 (1942); Pickard v. Commonwealth^ 126 Va. 729, 100 S.E. 821 (1920). The Virginia Supreme state's regulate of the Court has specifically upheld the ability to license physicians and their practice as a valid exercise state's police power. Grosso^ 21 S.E.2d at 730; Goe v. Gifford, 168 Va. 497, 191 S.E. 783 (1937); State Dentists v. Gifford, 168 Va. 508, 191 S.E. 787 (1937). Furthermore, states have traditionally been accorded leeway in adopting procedures to protect public health and safety. Mackey v. Montrym, 443 U.S. 1, 17, 99 S.Ct. 2612, 2620, 61 L.Ed.2d 321 (1979). In Middlesex, the Supreme Court recognized that states have an important interest in exercising control over the professional conduct of attorneys. For somewhat different, but equally powerful reasons, states have a present case is much simpler: Clowdis appealed to the state circuit court before filing in this Court. Phillips also implicitly establishes - if there were any room or need for debate on this matter - that an appeal from the Board's decision proceeding." Id. to a state circuit court is a ''judicial Clowdis briefly notes that "there is no pending investigation against Plaintiff by the medical board." (Pl.'s 0pp. 17) . That is irrelevant, because there a pending state circuit court appeal, and Phillips establishes that such state circuit court appeals are subject to Younger abstention. 16 vital interest in regulating the conduct of the medical professionals they license. Phillips, 749 F. Supp. at 722-23; see also Simopoulos v. Virginia Bd. of Medicine, 644 F.2d 321 (4th Cir. 1981).® Third, the Circuit Court proceeding ''provides an adequate opportunity for the plaintiff to raise the federal constitutional claim advanced in the federal lawsuit." Younger abstention is not required where an ongoing state proceeding does not provide an opportunity for resolution of a party's federal constitutional claims. Compare Middlesex, 457 U.S. at 432, 435-36, 102 S.Ct. at 2521, 2523 (finding "adequate opportunity" to raise constitutional claims), and Ohio Civil Rights Comm'n v. Dayton 28, Christian 106 Steffel V. Schools, S.Ct. at Thompson^ 477 2722-23 415 U.S. U.S. at 627- (same), with 452, 462, 94 Every federal appellate court to have addressed the question has joined Phillips in finding decisively that competency and licensing of doctors is a significant state interest for Younger/Middlesex purposes. Coqqeshall v. Massachusetts Bd. of Registration of Psychologists, 604 F.3d 658, 664-65 (1st Cir. 2010); Doe v. State of Conn., Dep't of Health Servs., 75 F.3d 81, 85 (2d Cir. 1996) , as amended on denial of reh'g (Jan. 30, 1996); Zahl v. Harper, 282 F.3d 204, 209 (3d Cir. 2002); Allen V. Louisiana State Bd. of Dentistry, 835 F.2d 100, 103 (5th Cir. 1988); Watts v. Burkhart, 854 F.2d 839, 846-47 (6th Cir. 1988); Majors v. Engelbrecht, 149 F.3d 709, 713 (7th Cir. 1998); Baffert v. California Horse Racing Bd., 332 F.3d 613, 618 (9th Cir. 2003). Additionally, Simopoulos implicitly recognizes the state's interest in regulating the practice of medicine. Because the case was decided pre-Middlesex and it does not use the "state interest" language using the same terminology as post-Middlesex decisions by other appellate courts. However, the Fourth Circuit's decision to abstain in the face of existing medical license appeals even before Middlesex clearly indicates that the Fourth Circuit respects the state's legitimate interest in such proceedings. 17 S.ct. 1209, (finding serve no as 1217, 39 ongoing vehicle plaintiff's L.Ed.2d state for 505 (1974) proceeding vindicating constitutional to federal rights), and Gerstein v. Puqh^ 420 U.S. 103, 108 n. 9, 95 S.ct. 854, 860 n. 9, 43 L.Ed.2d 54 (1975) (finding that the issue of the legality of a pretrial detention could not defense of a state criminal Here, this opportunity exists. Va.Code §§ 9-6.14:15 for judicial review to in be raised in prosecution). 9-6.14:19 provide state courts of agency determinations. Section 9-6.14:16 provides that 'Ma]ny person ... aggrieved by and claiming unlawfulness of a case decision shall have a right to direct review thereof by an appropriate and timely court action against the agency . . . and the judgment of such courts of original jurisdiction shall be subject to appeal to or review by higher courts as in other cases unless otherwise provided by law." (Emphasis added.) Section 9-6.14:17 provides that a state court reviewing an agency action may consider issues of law, including " (i) accordance with privilege, added.) The constitutional or right, immunity. ..." power, (Emphasis Fourth Circuit has observed that § 9-6.14:17 contains "language patently broad enough to include [a] plaintiff's objection to [a] statute on constitutional grounds." Simopoulos v. Virginia State Bd. of Medicine^ 644 F.2d at 330 n. 37. Consistent with this, the Supreme Court of Virginia, in State Bd. of Health of Virginia V. Godfrey^ 223 Va. 423, 290 S.E.2d 875, 881 n. 6, noted that "the scope of review under the Virginia APA is ^virtually identical' to that in the Federal Administrative Procedure Act," citing Annual Survey of Virginia Law, 61 Va. L. Rev. 1632, 1639 (1975). Significantly, the plaintiff here has not claimed that she would be unable to raise her constitutional claim in an appeal to the Virginia courts, and defendants correctly point to Va.Code § 9-6.14:17 as proof that 18 the claim can Virginia be considered on court. constitutional appeal As claim is by a plaintiff's reviewable in the state court on appeal, the requirement that there be ''adequate opportunity" for a federal plaintiff to raise her claim in pending state proceedings is satisfied. Phillips, 749 F. Supp. at 723-24. The current version of Virginia's Administrative Procedures Act, Va. Code § 2.2-4000 et seq., provides equivalent protections. Any ... party unlawfulness aggrieved of a case by and decision ... claiming shall have a right to the direct review thereof by an appropriate and timely court action against the agency or its officers or agents in the manner provided by the Rules of Supreme Court of Virginia. Actions may be instituted in any court of competent jurisdiction as provided in § 2.2-4003, and the judgments of the courts of original jurisdiction shall be subject to appeal to or review by higher courts as in other cases unless otherwise provided by law. Va. Code § 2.2-4026 (A); see also Va. Code § 2.2-4003 proper venue for such actions). The burden complaining shall of be agency upon action the to party designate and demonstrate an error of law subject to review by the court. Such issues of law include: (i) accordance with constitutional right, power, privilege, or immunity, (ii) compliance with statutory authority, jurisdiction limitations, or right as provided in the basic laws as to subject matter, the stated objectives for which regulations may be made, and the factual showing respecting violations or entitlement in connection with case decisions, (iii) observance of required procedure where any failure therein is not 19 mere harmless error. (stating and (iv) the substantiality of evidentiary support for findings of fact. Va. Code § the 2.2-4027. The three elements for Younger abstention are present,^ and require that the Court abstain from the exercise of jurisdiction. 2. To into the "Bad Faith" Is Inapplicable In This Case escape abstention, ''bad faith" 0pp. 16-18) 584, 591 Clowdis argues exception to Younger. (relying on Sprint Comm., (2013) (quoting Younger, findings constituted mistakes of fact "are void ab his case falls (Pl.'s Commonwealth v. Jacobs, 134 S. Ct. 401 U.S. at 53-54)). For this, states orders related Inc. Clowdis its two that theories: initio'^ and (1) that the Board's and law such that all of all actions Board after the 2007 hearing are suspect, and (2) taken by the that the Board is obstructing progress in the Circuit Court proceeding. 'MB]ad faith in [the Younger] context a prosecution has been brought without a of obtaining 274, ^ In 278 a valid (4th Cir. fact, Clowdis conviction.'" 1986) does reasonable expectation v. Brannon, 804 F.2d (quoting Kugler v. Helfant, 421 U.S. not Suggs 'generally means that contest that the three basic elements are met. (Pl.'s Resp. in 0pp. to Commonwealth's Mtn. to Dismiss, Docket No. 37, 16-18). Instead, as discussed below, he contests Younger application entirely on the existence of "bad faith." 20 117, 125-26 & 126 n.6 (1975) (finding plaintiff's allegations that members of the New Jersey Supreme Court and deputy attorney general were involved in coercing his grand jury testimony, so that it was impossible for him to receive a fair hearing in the state court system, insufficient exception to Younger rule)); v. McGowan, 282 F.3d 191, to see also 199 establish Diamond "D" (2d Cir. 2002) bad Const. faith Corp. (noting that the civil corollary to "without reasonable expectation of obtaining a valid conviction" is ''the party bringing the state action must have no reasonable outcome"). ended In this ''favorably" suspension). Thus, expectation case, all of obtaining the the most pre-appeal state to the (e.g., common a Board proceedings they variant favorable of resulted in Younger "bad or - faith" is not applicable to Clowdis's case. Nor do the Board's alleged mistakes of even of internal procedures or due process "bad faith." Younger abstention has a law fact or create an issue of remarkably high threshold for tolerating alleged flaws in state court proceedings. Kugler, 421 U.S. 117, allegations 125-26 that & members 126 of n.6 the (1975) New (finding Jersey plaintiff's Supreme Court and deputy attorney general were involved in coercing his grand jury testimony, such that it was impossible for him to receive a fair hearing in the state court system, faith exception to Younger rule); 21 insufficient to establish bad Kim-Stan, Inc. v. Pep't of Waste Mgmt., 732 F. Supp. 646, 652 (E.D. Va. 1990) (finding that government officials may have acted because of public outcry and out-of-state animus rather than for concrete insufficient to establish bad faith) . policy reasons This high threshold has its origins in Younger's recognition that: state courts rights, injury' will removing that normally protect federal any threat of ^irreparable might justify federal injunctive relief. Unless the state court cannot be relied upon for full and fair adjudication of constitutional claims {an independent exception doctrine), prosecutorial to bad the faith Younger presents no threat of irreparable injury. Simopoulos, 644 F.2d at 328 n.27 (quoting Note, Younger Doctrine: A Critique and Proposal, 1328-29 (1979)). Clowdis's findings case: of Applying even fact, if this mistaken findings violations of federal law, 67 Cal. L. Rev. 1318, presumption defendants' Limiting the and actions reasoning involved of law, to mistaken lack of evidence, violation of Constitutional rights, conduct actionable at tort, or any other wrong (2d Am. Corapl. fSI 57-59, 61-147), courts are federal Younger establishes a competent courts to should grant not the presumption that relief requested. second-guess a state Therefore, state court's competence in cases which implicate important state interests by snatching the case from state to federal court. The defendants' Clowdis's appeal to bad faith is even less convincing than in Kugler. The plaintiff in Kugler asserted that the entire state 22 actions on which type of actions courts, and presumption Clowdis relies to establish bad faith are the judges routinely hear when sitting as appellate Younger that requires such that courts this will be Court start competent with in a their administration of both state and federal law.^^ This the ''bad in the leads into Clowdis's second basis exception: three-year period of faith" case before the the Circuit appealed to the Circuit Court, willfully chosen procedures] (2d Am. refuse to the Court, Compl. the appeal, to to Court. for Clowdis but that ''to date, send the records application of inactivity notes that he the Board has [of the Board even though required to do so by law." SI 56). Clowdis states that shortly after he filed the Board filed a motion to transfer venue (to which Clowdis filed an objection), but that the Circuit Court declined judiciary was tainted against him. In this case, Clowdis has pled that Silverman had a pecuniary interest in the outcome of the Board proceedings and that the Board acted wrongfully, but he has pled no wrongdoing on behalf of the Circuit Court. Because Clowdis has not pled that it is impossible for him to have a fair hearing on his assorted and assignations of error in the state court system, there is no need for this Court to take his case In support establish Act, from the the state court. of that: Circuit this (1) notion, under Court can the the Commonwealth Virginia hear both Defendants Administrative Clowdis's Process constitutional claims and his request to overturn the Board's order; and that (2) Virginia state courts do in fact overturn Board decisions for lack of substantial evidence or procedural errors. (Commonwealth's Reply, Docket No. 43, 2-3) (relying on Va. Code. § 2.2-4000 et seq.; Goad v. Virginia Bd. of Medicine, 580 S.E.2d 494, 40 Va. App. 621 (Va. Ct. Ct. App. 2003); Fetta v. Virginia Bd. of Medicine, 20 Va. Cir. 334 (Va. Cir. Ct. 1990)). 23 to move forward with the venue motion or any other motion until the Board transmitted the evidentiary record of the underlying hearing, {2d Am Compl. If 59, 85) . The Board states, via affidavit of its counsel, that the three year delay occurred because the Circuit Court clerk's office only stated position to the "no Clowdis, movement and that without neither an evidentiary Clowdis nor the record" Circuit Court clerk's office informed the Board that the evidentiary record was required for progress on the venue motion. (Commonwealth's Commonwealth Reply, Docket No. 43, at 4 & 4 n.5). The Board states that, if it had been aware of the Circuit Court's position, it would have provided the record. Id. at 4 n.5. Claudis, in one of many motions to strike, argues that the Board should have known that it had a statutory obligation to transmit the record. (Pl.'s Mtn. to Strike, Docket No. 46, 4). Examining the Administrative Process Act, however, reveals that the statute itself only requires the agency to provide the record when the Circuit Court is making a determination of the propriety of the administrative action. Va. Code. § 2.2-4027 (''The burden shall be upon the party complaining of agency action to designate and demonstrate an error of law subject to review by the court ... The determination of such fact issue shall be made upon the whole evidentiary record provided by the agency"). Although the Circuit Court requested the evidentiary record before addressing the venue question (which this Court presumes was well within the Circuit Court's authority), the statute by its own language only requires that the agency provide the evidentiary record before considering the substantive issue. Given that (1) the Board made only a limited appearance for purposes of venue and (2) the Administrative Process Act itself does not require the record before consideration of the merits, the Court cannot at this point infer bad faith from the Board's failure to comply with a nonstatutory requirement of which i t was not aware. This is, of course, extraneous to the Court's decision to dismiss, and is introduced primarily to clarify the record. It is not the Board's bad faith that matters at this stage of a Younger inquiry, but the bad faith of the Circuit Court. What is dispositive is that the record lacks any evidence that Clowdis sought the Circuit Court's assistance in having the records delivered. Clowdis states that he contacted various politicians for assistance moving his Circuit 24 Court case forward. (Pl.'s Failure to produce necessary heart, a discovery dispute. its sister federal documentation is, at its This Court recently recognized that district courts are ''perfectly capable of crafting discovery orders that suit the parties' conduct and [a plaintiff's] needs for discovery." In re Subpoenas for Documents Issued to 1071016, ThompsonMcMullan, at *8 (E.D. Va. P.C., Mar. No. 17, CV 3:16-MC-1, 2016). Under 2016 the WL comity principles of Younger, the Court must grant the same respect to the state crafting courts. The discovery relevant documents, Circuit orders and Court is remedies perfectly for capable production of of the both to resolve the venue motion and going forward with the merits of Clowdis's substantive case. As such, Clowdis's claim that defendants ''act[ed] in bad faith to prevent Plaintiff from having any motion even considered by the state court" (Pl.'s 0pp. 2) does not constitute the type of bad faith which counsels against applying Younger. In sum, appellate ''permitting plaintiff here to avoid the state court process administrative stage Commonwealth 0pp. after trial-like would 12-13), cast a proceedings direct aspersion at the on the but does not assert that either: (1) that he contacted the Board or Board's counsel to explain the Circuit Court's position that the Circuit Court would not move forward without the written record; or (2) that he contacted the Circuit Court to explain the situation and request the Court's assistance in production of the record. In any event, the issue of production is one that must ultimately be addressed to the Circuit Court, especially where, as here, there is no contention that the Circuit Court has in bad faith effected the delay. 25 capabilities and good faith of Virginia's courts." Phillips, 749 F. and Supp. at Middlesex 727. are The all comity present concerns underlying and mandate Younger application of Younger abstention. 3. Because met, and Conclusion the basic because requirements Clowdis has not for Younger established abstention the sort of are bad faith required for an exception to Younger abstention, the Court abstains from exercising jurisdiction over Clowdis's request for restoration of his license. Court declines to constitutional, contract exercise federal claims. {2d Am. Compl. jurisdiction statutory, {Compl. state 62-143). competent to adjudicate such claims, at fault f The 32). Moreover, over tort, Clowdis's and Circuit the state Court is and finding the defendants {and granting Clowdis relief) in these related matters would interfere with the Circuit Court's ability to adjudicate the propriety of the Board proceedings. Because the over this case, substantive the VCU Court abstains from exercising jurisdiction it will not address the remaining procedural or defenses raised by the Defendants. 26 Commonwealth Defendants or 2. NPDB's Case Or Controversy Motion NPDB initially filed a motion to dismiss on jurisdictional and substantive Dismiss, grounds. Docket No. 50) . (NPDB's Mem. In response, in Supp. of Mtn. to Clowdis conceded that he only included NPDB in this action so that NPDB will be required to promptly adjust his database entry if this Court finds that the Board's submissions to NPDB are false. to [NPDB's] that Mtn. position, jurisprudence. to Dismiss, Docket No. NPDB's Reply turned (NPDB's Reply, (Pl.'s Resp. in 0pp. 58, to Docket 14). In light of case-or-controversy No. 60, 3-6). NPDB correctly points out that Clowdis is only entitled to the relief he seeks contingent upon his relief against the Commonwealth and VCU Defendants. Id. Accordingly, Clowdis's entitlement to relief is ^^contingent anticipated, [upon] future events that may not occur or indeed may not occur at all." Texas v. as United States, 523 U.S. at 300. Clowdis's self-acknowledged sole claim against NBPD is not ripe for adjudication. On this basis, the Commonwealth of Court will dismiss all claims against NPDB. CONCLUSION For Virginia's the reasons MOTION TO Associated Physicians' stated DISMISS above, (Docket MOTION TO DISMISS 27 the Nos. 24, (Docket No. 55), 29), MCV and the National Practitioner Database's MOTION TO DISMISS {Docket No. 49) will be granted in their entirety. It is so ORDERED. /s/ Robert E. Payne Senior United States District Judge Richmond, Virginia Date: May 2016 28

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