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UNPUBLISHED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Affirmed in part; vacated in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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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