Case: 18-60312      Document: 00514674252         Page: 1    Date Filed: 10/09/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit

                                    No. 18-60312                            FILED
                                  Summary Calendar                    October 9, 2018
                                                                       Lyle W. Cayce
                                                                            Clerk
IKECHUKWU HYGINUS OKORIE, Medical Doctor,

              Plaintiff - Appellant

v.

MISSISSIPPI BOARD OF MEDICAL LICENSURE; M.D. VIRGINIA
CRAWFORD, Individually; JONATHAN DALTON, Individually; RANDALL
ESTERLING, M.D., Individually,

              Defendants - Appellees




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:18-CV-179


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       On March 23, 2018, the Mississippi Board of Medical Licensure (“Board”)
held a disciplinary hearing related to charges that appellant Ikechukwu
Hyginus Okorie violated the terms of a previous disciplinary order. The
following day, Okorie filed a pro se complaint and request for a temporary


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 18-60312
restraining order in federal court, seeking to enjoin the Board from suspending
his medical license. He claimed its enforcement actions against him were
racially motivated and retaliatory.
      On March 26, 2018, the Board entered its Determination and Order,
suspending Okorie’s license for a year. The district court subsequently
dismissed Okorie’s federal claim based on abstention under Younger v. Harris,

(1971). Okorie appeals the district court’s judgment, contending
abstention was not warranted.
      The district court’s abstention ruling is reviewed for abuse of discretion,
but we review de novo whether the conditions of Younger abstention are
present. Tex. Ass’n of Bus. v. Earle, 

, 518 (5th Cir. 2004). Younger
requires federal courts to abstain from granting injunctive or declaratory relief
where “(1) the federal proceeding would interfere with an ongoing state judicial
proceeding; (2) the state has an important interest in regulating the subject
matter of the claim; and (3) the plaintiff has an adequate opportunity in the
state proceedings to raise constitutional challenges.” Bice v. La. Pub. Def. Bd.,

, 716 (5th Cir. 2012) (quotations omitted).
      Okorie does not seriously dispute that the first two conditions are met.
He does not dispute that the Board’s disciplinary proceeding can be considered
a “judicial proceeding” for Younger purposes. And that proceeding was ongoing
when Okorie filed his federal case, as the Board had not yet entered its
Determination and Order. See DeSpain v. Johnston, 

, 1178 (5th
Cir. 1984) (“If a state action is pending at [the time that the federal complaint
is filed], the federal action must be dismissed.”). Further, Okorie does not
dispute that an important state interest is at stake, namely, regulating the
practice of medicine. See, e.g., Planned Parenthood of Greater Tex. Surgical
Health Servs. v. Abbott, 

, 411 (5th Cir. 2013).


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                                       No. 18-60312
       Okorie focuses instead on the third condition. Specifically, he contends
he did not and would not have an adequate opportunity to raise his racial
discrimination claim in the state proceedings. He contends he was not able to
raise the claim before the Board and so is not able to raise it on appeal to the
state court.
       This argument is directly contradicted by the Board hearing transcript.
Okorie was questioned about and testified regarding his claim of racially
discriminatory enforcement. Even if he had not raised the claim with the
Board, Mississippi law does not bar consideration of Okorie’s constitutional
claims on judicial review. See Moore v. Sims, 

, 425–26 (1979)
(“[A]bstention is appropriate unless state law clearly bars the interposition of
the constitutional claims.”). Okorie can (and did) appeal the Board’s decision
to the chancery court. 1 See Miss. Code Ann. § 73-25-27. Although the chancery
court’s review of an administrative decision is limited, the court can determine
whether the Board “violated some statutory or constitutional right of the
complaining party.” McFadden v. Miss. State Bd. of Med. Licensure, 

, 151 (Miss. 1999) (quotation and emphasis omitted). The district court
correctly determined that the conditions for Younger abstention were present.
       We also agree with the district court’s finding that no exceptions to the
Younger doctrine apply. A plaintiff may overcome the presumption of
abstention only “in cases of proven harassment or prosecutions undertaken by
state officials in bad faith . . . and . . . in other extraordinary circumstances
where irreparable injury can be shown.” Perez v. Ledesma, 401 US. 82, 85
(1971). One such extraordinary circumstance is bias that “render[s] the state




       1 That Okorie appears to have withdrawn his racial discrimination claim in his state
appeal does not change the analysis. It is dispositive that he had the opportunity to raise the
claim in state proceedings, whether or not he avails himself of this opportunity.
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                                     No. 18-60312
[body] incapable of fairly and fully adjudicating the federal issues before it.”
Kugler v. Helfant, 

, 124 (1975).
      Okorie argues the Board’s proceeding was initiated in retaliation for a
separate federal lawsuit he brought against it. We affirm the district court’s
finding that retaliation was not a “major motivating factor” in the Board’s
enforcement proceedings. Smith v. Hightower, 

, 367 (5th Cir.
1982). Okorie admitted to violating the Board’s previous order, and the other
lawsuit had been pending for eight months with no decision before the Board
commenced the current proceedings against Okorie.
      Okorie also claimed the court should not have abstained because the
Board was biased against him. He alleges one of the board members competed
with him in prescribing a particular drug. Okorie’s only evidence of this is his
own assertion in his answer to the Board’s enforcement proceeding summons.
To overcome the presumption of abstention due to bias, the adjudicative body
must be “so biased . . . that it cannot constitutionally conduct hearings looking
toward” the suspension of Okorie’s medical license. Gibson v. Berryhill, 

, 578 (1973). The district court found Okorie’s allegations of bias to be
insufficient, and we agree. 2 His unsubstantiated claim of one board member’s
pecuniary interest is inadequate to show extreme bias rendering the Board
incompetent to conduct the enforcement proceeding.
      The district court properly concluded the elements supporting Younger
abstention were present and that no exception applied. We AFFIRM.




      2We may affirm the district court’s judgment on any grounds supported by the record.
Sojourner T v. Edwards, 

, 30 (5th Cir. 1992).
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