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Clowdis v. Silverman

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

March 28, 2019

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





         This is the latest chapter of a case first filed with the Court in 2015. In October 2015, Plaintiff William G. Clowdis, Jr., M.D. ("Clowdis"), proceeding pro se, filed his SECOND AMENDED COMPLAINT FOR MANDAMUS AND DAMAGES (ECF No. 15) ("SAC") against various Defendants, including the "Commonwealth Defendants"[1] and the "VCU Defendants"[2] (both sets of Defendants are hereinafter referred to as "Defendants") . The essence of the SAC is that Clowdis objects to the suspension of his medical license by Virginia officials, and alleges various procedural and legal flaws that he thinks are inherent in the suspension. The factual background as alleged by Clowdis was detailed in the Court's 2016 MEMORANDUM OPINION (ECF No. 77), and is set forth again below.

         I. Factual Background Underlying the Second Amended Complaint

         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. SAC ¶¶ 5, 20, 26 (ECF No. 15). Because of a prolonged illness between 2001 and 2004, Clowdis voluntarily inactivated his Virginia license beginning in 2001. Id. ¶¶ 22, 26. The illness was exacerbated by the use of doctor- prescribed medications that induced adverse physical and mental symptoms. Id. ¶¶ 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. Id. ¶¶ 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. Id. ¶¶ 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. Id. ¶ 26. Clowdis completed the Colorado state court diversion program, with the result that the felony charge was dismissed with prejudice. Id. ¶ 28. While being weaned off his prescriptions, Clowdis voluntarily enrolled in a physician health monitoring program in Colorado known as the Colorado Physician Health Program ("CPHP"). Id. ¶ 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. Id. ¶ 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. Id. ¶ 30. Clowdis disclosed his participation in CPHP to Virginia's Health Practitioner Monitoring Program ("HPMP") under a confidentiality agreement. Id. ¶ 30. HPMP determined that Clowdis could not participate in HPMP because he resided in West Virginia. Id. ¶ 31. Clowdis alleges that, in breach of the confidentiality agreement, HPMP informed the Virginia Board of Medicine ("the Board") about Clowdis' felony conviction. Id. ¶ 30. The Board revoked Clowdis' medical license without a hearing on the basis that Clowdis was a convicted felon. Id. ¶ 31. The Board also placed a record in the "National Practitioner Data Bank" ("NPDB") stating that Clowdis was a convicted felon. Id. ¶ 39. Clowdis alleges that he promptly informed the Board that he was not a convicted felon. Id. ¶ 32.

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

         At an unspecified subsequent point between 2007 and 2011, Clowdis applied for reinstatement of his Virginia medical license. Id. ¶ 37. Initially, the Board informed Clowdis that it would not reinstate his license because of Clowdis' history of mental health problems and his past receipt of disability benefits. Id. In 2011, four years after his initial suspension, the Board gave Clowdis a hearing on reinstatement. Id. ¶ 40. Silverman's report played a substantial role in the decision-making process. Id. ¶ 49.

         Following the hearing, in 2011, the Board issued an Order in which it 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. Id. ¶ 42. Nevertheless, the Board made a finding of law that Clowdis was a convicted felon. Id. On this basis, the Board stayed Dr. Clowdis' suspension, contingent on his participation in HPMP monitoring. Id. ¶ 45. The HPMP monitoring contract required Clowdis' compliance with all HPMP orders, upon penalty of suspension or revocation of his medical license. Id. ¶ 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. Id. ¶ 45.

         After the 30-day deadline to appeal, HPMP allegedly informed Clowdis that he would not be permitted to work indefinitely, restricted Clowdis from leaving Virginia, and restricted Clowdis from making phone calls to out-of-state hospitals interested in hiring him. Id. ¶¶ 47-48. At about this time, Clowdis also learned that his evaluator, Silverman, was the CEO of HPMP. Id. ¶ 4 9-50. 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. Id. ¶¶ 52-54.

         As a result of Clowdis' non-participation in HPMP, the Board convened a new hearing in February 2013, which Clowdis asserts was flawed by certain enumerated procedural and legal errors. Id. ¶ 55. The Board reinstated Clowdis' suspension. Id. Clowdis appealed the Board's decision to the Circuit Court for the City of Richmond (the "Circuit Court"). Id. ¶ 56. Clowdis alleges that the Board did not send certain records to the Circuit Court, with the result that litigation there was delayed. Id.

         Lastly, Clowdis alleges that "Defendants, including but not limited to the Medical Board and the NPDB, have continued discriminatory acts against Dr. Clowdis to present," which included "acts in retaliation of this complaint, whereby the Medical Board reported false information against Plaintiff to the NPDB, which the NPDB published, in June 2015." Id. ¶ 60.

         II. Procedural Context for the Pending Motions

         In 2015, Clowdis filed this action against a host of entities and individuals involved with his suspensions. Relevant to the pending motions, the SAC alleged, inter alia, the following claims for relief: Discrimination Based on Disability under Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq. (Count I); a violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Count II); retaliation in violation of Title II of the ADA, 42 U.S.C. § 12203 (Count III); and a violation of the Due Process Clause of the Constitution and 42 U.S.C. § 1983 (Count IV).[3] SAC ¶¶ 62-147 (ECF No. 15). The various defendants filed a first set of MOTIONS TO DISMISS the SAC. See ECF Nos. 24, 29, 49, 55.

         After considering the parties' positions on these MOTIONS TO DISMISS, the Court granted them in their entirety in a MEMORANDUM OPINION dated May 5, 2016. ECF No. 77. The Court held that Younger abstention precluded its exercise of jurisdiction because Clowdis had ongoing, related litigation in Virginia state court. Mem. Op. at 12-20 (ECF No. 77). The Court dismissed the claims against Defendant National Practitioner Data Bank on ripeness grounds. Id. at 27. Clowdis appealed.

         In an unpublished, per curium opinion, the Fourth Circuit "affirm[ed] the district court's order dismissing Clowdis' claims for injunctive and declaratory relief" but "vacate[d] the dismissal of his claims for damages and remand[ed] with instruction to stay these claims until resolution of Clowdis' state appeal." Clowdis v. Silverman, 666 Fed.Appx. 267, 271 (4th Cir. 2016). The claims over which the Court was to retain jurisdiction were claims for "damages for the alleged violation of his constitutional rights, as well as damages for the alleged violations of the ADA and the RA." Id. at 270.

         Following this decision of the Court of Appeals, this Court ORDERED "that the plaintiff's claims for damages with respect to alleged violations of his constitutional rights and alleged violations of the American Disabilities Act and the Rehabilitation Act, Counts I through IV, are reinstated and are stayed pending resolution of the plaintiff's state court proceedings." ECF No. 85. The Court further ORDERED the parties to file periodic status reports on the state court proceedings, id., which were filed between February 2017 and April 2018. See ECF Nos. 86-89, 91-94, 97-100.

         On August 1, 2018, following the conclusion of Clowdis' state court proceedings, the Court ORDERED that "the stay imposed by this Court's ORDER (ECF No. 85) entered January 23, 2017 is lifted." ECF No. 103. The Court noted that "COUNTS IV through XI are no longer before the Court having been previously dismissed, and that decision was affirmed by the United States Court of Appeals for the Fourth Circuit." Id. The Court further ORDERED that the Defendants could renew any motions to dismiss the SECOND AMENDED COMPLAINT FOR MANDAMUS AND DAMAGES (ECF No. 15) in an "orderly," count-by-count manner. Id. Because of the significant number (and confusing nature) of documents filed up to that point by Clowdis, the Court further ORDERED that Clowdis "shall file nothing until the defendants file any motions that they may file pursuant to this ORDER and then the Plaintiff may respond in due course." Id.

         Pursuant to that ORDER, the Commonwealth Defendants filed their THIRD AMENDED MOTION TO DISMISS (ECF No. 106) and supporting memoranda (ECF Nos. 107, 119). Clowdis responded in opposition. ECF No. 114. Likewise, the VCU Defendants filed their RENEWAL AND SUPPLEMENTATION OF MOTIONS TO DISMISS BY DEFENDANTS JOEL JEREMY SILVERMAN, M.D.; MCV ASSOCIATED PHYSICIANS; AND VIRGINIA COMMONWEALTH UNIVERSITY HEALTH SYSTEM AUTHORITY (ECF No. 108) and supporting memoranda (ECF Nos. 109, 120). Again, Clowdis opposed this motion. ECF No. 115.

         In reviewing these motions and memoranda, the Court became aware that Count IV of the SAC (ECF No. 15) should still have been before the Court because it sought damages for an alleged violation of the Due Process Clause of the U.S. Constitution. See ORDER (ECF No. 128); SAC ¶ 97. Accordingly, the Court reinstated that Count; lifted the stay as to it; and provided the VCU Defendants an opportunity to amend their MOTION TO DISMISS (ECF No. 108) and file supplemental memoranda (as well as a response by Clowdis).[4]ECF No. 128. The VCU Defendants then filed their SECOND RENEWAL AND SUPPLEMENTATION OF MOTIONS TO DISMISS BY DEFENDANTS JOEL JEREMY SILVERMAN, M.D.; MCV ASSOCIATED PHYSICIANS; AND VIRGINIA COMMONWEALTH UNIVERSITY HEALTH SYSTEM AUTHORITY (ECF No. 129) and supporting memoranda (ECF Nos. 130, 134). Clowdis opposed it. ECF No. 131.

         Now pending before the Court are the Commonwealth Defendants' and the VCU Defendants' MOTIONS TO DISMISS (ECF Nos. 106, 108, 129) the remaining Counts of the SECOND AMENDED COMPLAINT FOR MANDAMUS AND DAMAGES (ECF No. 15) . The remaining Counts are Counts I through IV. See ECF No. 128. The Commonwealth Defendants bring their MOTION pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). The VCU Defendants bring their MOTION pursuant to Fed.R.Civ.P. 12(b)(1), 12(b)(4), and 12(b)(6). These MOTIONS have been fully briefed and the matter is ripe for decision.


         I. Clowdis' Pro Se Status

         Clowdis is proceeding in this matter pro se. The Court typically construes documents filed by a pro se plaintiff liberally. See, e.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). However, Clowdis alleges that, while waiting for the Board to act on reinstating his medical license between 2007 and 2011, he completed law school. SAC ¶ 35 (ECF No. 15) . He passed the New York State bar examination in 2011, "but his bar admission was placed on hold [as] a result of his suspended medical license." Id. ¶ 36.

         "The Fourth Circuit has not explicitly decided whether attorneys proceeding pro se are entitled to this liberal construction." Downing v. Lee, No. 1:16-cv-1511, 2017 WL 3082664, at *7 (E.D. Va. July 18, 2017) (citing Kerr v. Marshall Univ. Bd. of Governors, 824 F.3d 62, 72 (4th Cir. 2016)). This Court has declined to apply this liberal treatment to lawyers proceeding pro se. See 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).[5] However, in recent decisions, the Fourth Circuit has expressly left open the question of whether a lawyer proceeding pro se "receives the benefit of this liberal construction." Kerr, 824 F.3d at 72; see also Willner v. Dimon, 849 F.3d 93, 103-104 (4th Cir. 2017). Because this remains an open question, "[o]ut of an abundance of caution. .and in accordance with the liberal construction [afforded to] a pro se complaint," the Court will "construe [Clowdis'] arguments as best [it] can. ..." Kerr, 824 F.3d at 72.

         II. Motions to Dismiss under Fed.R.Civ.P. 12

         The Commonwealth Defendants bring their MOTION pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), while the VCU Defendants bring their MOTIONS pursuant to Fed.R.Civ.P. 12(b) (1), 12(b) (4), and 12(b) (6) .

         The Court recently set forth the well-established principles governing Rule 12(b)(1):

A party may file a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). If a court finds that it does not have subject matter jurisdiction over the case or controversy, it must dismiss the action. Of course, the plaintiff bears the burden of establishing that federal jurisdiction is proper.
Challenges to subject matter jurisdiction may be made in two ways. First, a facial challenge to jurisdiction may be made by arguing that the complaint does not allege facts that permit the exercise of federal subject matter jurisdiction. If that type of challenge is raised, the court must assume that all facts alleged in the complaint are true. Second, the challenge can be made under the theory that the complaint's assertion of subject matter jurisdiction is not true. In that event, a court may consider evidence outside the pleadings.

Andrews v. Taylor, No. 3:17-cv-533, 2018 WL 2108022, at *2 (E.D. Va. May 7, 2018) (citation omitted).

         Motions to dismiss under Fed.R.Civ.P. 12(b)(4) test the "sufficiency of the form of. . .process, rather than the manner or method by which it is served." Stewart v. Va. Commonwealth Univ., No. 3:09CV738, 2011 WL 1827735, at *2 (E.D. Va. May 12, 2011) (citation omitted).

         Lastly, motions to dismiss based upon Fed.R.Civ.P. 12(b) (6) are evaluated under the following standards:

In [considering a Fed.R.Civ.P. 12(b)(6) motion to dismiss], we must accept the factual allegations of the complaint as true and construe them in the light most favorable to the nonmoving party. To survive a 12(b)(6) motion, the "complaint must contain sufficient factual matter, accepted as true, 'to state a claim to relief that is plausible on its face.'" A claim is "plausible on its face," if a plaintiff can demonstrate more than "a sheer possibility that a defendant has acted unlawfully."

Rockville Cars, LLC v. City of Rockville, 891 F.3d 141, 145 (4th Cir. 2018) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court "may consider documents attached to the complaint or the motion to dismiss so long as they are integral to the complaint and authentic." Rockville Cars, 891 F.3d at 145 (citation omitted). Notwithstanding those basic principles, however, the Court does not "accept as true a legal conclusion couched as a factual allegation." SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d 412, 422 (4th Cir. 2015) (citation omitted). "Threadbare recitals ...

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