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Clowdis v. Silverman

United States District Court, E.D. Virginia, Richmond Division

May 5, 2016

WILLIAM G. CLOWDIS, JR., M.D., Plaintiff,
v.
JOEL JEREMY SILVERMAN, M.D., et al., Defendants.

MEMORANDUM OPINION

Robert E. Payne Senior United States District Judge.

This matter is before the Court on the Commonwealth Defendants' MOTION TO DISMISS {Docket Nos. 24, 55), the VCU Defendants' MOTION TO DISMISS (Docket No. 29), and the National Practitioner Database's MOTION TO DISMISS (Docket No. 49). For the reasons stated below, the Commonwealth Defendants' MOTION TO DISMISS (Docket Nos. 24, 55), the VCU Defendants' MOTION TO DISMISS (Docket No. 29), and the National Practitioner Database's MOTION TO DISMISS (Docket No. 49) 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 in obstetrics and gynecology in the Commonwealth in 1991. (2d Am. Compl., Docket No. 15, ¶¶ 5, 22, 26). Due to a prolonged illness between 2001 and 2004, Clowdis voluntarily inactivated his license beginning in 2001. (2d Am. Compl. ¶¶ 22, 26). Clowdis's illness was exacerbated by the use of doctor-prescribed medications that induced adverse physical and mental symptoms. (2d Am. Compl. ¶¶ 23, 24). During his illness and while under the influence of these prescription medications, Clowdis was involved in an incident at his residence that resulted in a felony charge in Colorado state court. (2d Am. Compl. ¶¶ 24, 25, 28.). The Colorado state court placed Clowdis in a diversion program, whereby his felony conviction would be erased contingent upon successful completion of a period of court supervision. (2d Am. Compl. ¶¶ 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. (2d Am. Compl. ¶ 26). Clowdis completed his Colorado state court diversion program, which resulted in his felony charge being dismissed with prejudice. (2d Am. Compl. ¶ 28). While being weaned off his prescriptions, Clowdis voluntarily enrolled in a physician health monitoring program in Colorado known as Colorado Physician Health Program ("CPHP"). (2d Am. Compl. ¶ 27).

In December 2006, after completing the Colorado diversion program, Clowdis received an offer to work as an OB/GYN at a West Virginia hospital. (2d Am. Compl. ¶ 29) . CHCP could 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. ¶ 30) . Clowdis disclosed his participation in CPHP to Virginia's Health Practitioner Monitoring Program ("HPMP") under a confidentiality agreement. (2d Am. Compl. ¶ 30) . HPMP determined that Clowdis could not participate in HPMP because he resided in West Virginia. (2d Am. Compl. ¶ 31). In breach of the confidentiality agreement, HPMP informed the Virginia Board of Medicine ("the Board") about Clowdis's felony conviction. (2d Am. Compl. ¶ 30). The Board revoked Clowdis's medical license without a hearing on the basis that Clowdis was a convicted felon. (2d Am. Compl. ¶ 31). The Board also placed a record in the National Practitioner Databank ("NPDB") stating that Clowdis was a convicted felon. (2d Am. Compl. ¶ 39) .

Between 2005 and 2010, Clowdis received forensic psychiatric, independent medical, and competency evaluations, all of which found him fit to return to practice. (2d Am. Compl. ¶ 41). One such review came from Joel Silverman, M.D. ("Silverman"). (2d Am. Compl. ¶ 41).

At an unspecified subsequent point between 2007 and 2011, Clowdis applied for reinstatement of his medical license. (2d Am. Compl. ¶ 37) . Initially, the Board informed Clowdis that it would not reinstate his license because of Clowdis's history of mental health problems and his past receipt of disability benefits. (2d Am. Compl. ¶ 37).

At an unspecified subsequent point between 2007 and 2011, Clowdis applied for reinstatement of his medical license. (2d Am. Compl. ¶ 42) . In 2011, the Board gave Clowdis a hearing on reinstatement. (2d Am. Compl. ¶ 40). Silverman's report played a substantial role in the decision-making process. (2d Am. Compl. ¶ 49). In its 2011 Order, the Board made formal findings of fact that: (1) Clowdis showed no evidence of current psychopathology or substance abuse and (2) the felony charge against him had been dismissed. Nevertheless, the Board made a finding of law that Clowdis was a convicted felon. On this basis, [1] the Board stayed Dr. Clowdis's suspension, contingent on his participation in HPMP monitoring. (2d Am. Compl. ¶ 45) . The HPMP monitoring contract required Clowdis's compliance with all HPMP orders, upon penalty of suspension or revocation of his medical license. (2d Am. Compl. ¶ 46). Although Clowdis asserts that the hearing was flawed by certain enumerated procedural and legal errors, Clowdis did not appeal the ruling within the 30 day deadline. (2d Am. Compl. ¶ 45).

After the 30 day deadline to appeal, HPMP informed Clowdis that he would not be permitted to work indefinitely and restricted Clowdis from leaving Virginia. (2d Am. Compl. ¶¶ 47-48) . At about this time, Clowdis also learned that his evaluator, Silverman, was the CEO of HPMP. (2d Am. Compl. ¶ 49-50) . Clowdis suspended participation in HPMP because he could not comply with HPMP's prohibition on employment and because he disagreed with the terms of HPMP's monitoring contract. (2d Am. Compl. ¶¶ 52-54) .

As a result of Clowdis's non-participation, the Board convened a new hearing, which Clowdis asserts was flawed by certain enumerated procedural and legal errors. (2d Am. Compl. ¶ 55). The Board reinstated Clowdis's suspension. (2d Am. Compl. ¶ 56). Clowdis appealed the Board's decision to the Circuit Court for the City of Richmond (the "Circuit Court"). (2d Am. Compl. ¶ 56) . The Board did not send certain records to the Circuit Court, with the result that litigation there has been at a standstill since 2013. (2d Am. Compl. ¶ 56).

Clowdis subsequently filed this action against a host of entities and individuals involved with his suspensions. The first group of defendants includes the Commonwealth of Virginia, the Department of Health Professions ("DHP"), Virginia Commonwealth University ("VCU"), Virginia Board of Medicine ("the Board"), Virginia Health Practitioner Monitoring Program ("HPMP"), Board Executive Director William Harp, Board Deputy Executive Director Jennifer Deschenes, DHP investigator Sherry Foster, HPMP case manager Amy Stewart, and Laura Hopson-Bush. The Court refers collectively to these defendants as the "Commonwealth Defendants." The second group of defendants includes Dr. Joel Silverman ("Silverman"), MCV Associated Physicians, and Virginia Commonwealth University Health System Authority ("VCUHSA"). The Court refers collectively to these defendants as the "VCU Defendants." Finally, Clowdis sued the National Practitioner Data Bank ("NBDB").

The Commonwealth Defendants initially filed a motion to dismiss on behalf of the Commonwealth, DHP, the Board, VCU, HPMP, Harp, Deschenes, Foster, and Stewart. (Docket No. 24). The Commonwealth Defendants filed a functionally identical motion to dismiss on behalf of Hopson-Bush after Clowdis served Hopson-Bush. (Docket No. 55) . The VCU Defendants filed a separate motion to dismiss. (Docket No. 29). NPDB filed a separate motion to dismiss. (Docket No. 49).[2]

LEGAL STANDARDS

A. Deference To Clowdis's Pro Se Status

Clowdis claims that, as a pro se litigant, he is entitled to liberal construction of his pleadings. (PL's Resp. in Opp. to [Commonwealth's] Mtn. to Dismiss, Docket No. 37, at 16) ("PL's Commonwealth Opp."). Clowdis is correct that pro se litigants are typically entitled to have their pleadings given a liberal construction. See, e.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). That rule applies to pro se litigants because they do not have the assistance of a lawyer in presenting their claims.

Clowdis alleges that, while waiting for a Board hearing on reinstatement of his medical license between 2007 and 2011, he completed law school. (2d Am. Compl. ¶ 35) . Clowdis passed the New York State bar exam in 2011, "but his bar admission was placed on hold [as] a result of his suspended medical license." (2d Am. Compl. ¶ 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. Jenkins, No. 3-.15CV655, 2016 WL 901279, at *2-3 (E.D. Va. Mar. 3, 2016) (surveying federal circuit court and Eastern 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.[3]

The Court concludes that it is not the practice or license that is dispositive in the deference typically given to pro se plaintiffs. Rather, it is the lack of familiarity with substantive and procedural law that undergirds the relative leniency shown to pro se plaintiffs. E.g. Harbulak v. 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). Because Clowdis represents that he is a law school graduate, that he passed a state bar examination, and that he would have been ...


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