Roush v. Justice

949 F. Supp. 449, 1996 WL 748209
CourtDistrict Court, S.D. West Virginia
DecidedDecember 23, 1996
DocketCivil Action No. 2:95-1012
StatusPublished

This text of 949 F. Supp. 449 (Roush v. Justice) is published on Counsel Stack Legal Research, covering District Court, S.D. West Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Roush v. Justice, 949 F. Supp. 449, 1996 WL 748209 (S.D.W. Va. 1996).

Opinion

MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

Pending is Defendants’ motion for summary judgment. For the reasons that follow, the Court GRANTS the motion.

Plaintiff Rodney D. Roush and Judith Annette Roush divoreed by order of the Circuit Court of Kanawha County, West Virginia, on January 27,1988. The Court awarded custody of the couple’s child, Melissa, to Judith Roush and ordered Plaintiff to pay her child support and alimony. Plaintiff fell behind in his payments sometime thereafter, but quickly made up the arrearage. Plaintiff assumed custody of Melissa Roush in February 1991. On July 8, 1993, the Circuit Court of Kana-wha County entered an order (“the Circuit Court order”) ratifying an agreement executed by Plaintiff and Judith Roush that extinguished all claims for child and spousal support each allegedly owed the other.

In 1994, the Child Advocate Office (“CAO”), the state agency charged with enforcing child support obligations, W.Va.Code § 48A-2-1 (repealed 1995), automated its records onto a computer system known as OSCAR. The OSCAR system, developed and built by Network Systems, Inc. (“NSI”), was designed to apprise CAO staff of the status of support obligations and to instruct staff how to respond when responsible parents fall behind in their obligations. According to Defendants, over the course of building the OSCAR database, NSI neglected to input the Circuit Court order reflecting the [450]*450Roushes had settled their respective child and spousal support claims.

Because of this error, OSCAR showed Plaintiff owing back child support. Based on this information, Defendant Connie Dunlap, a CAO legal assistant,1 on June 29, 1995, signed and issued to Plaintiff a notice, as . authorized by W.Va.Code § 48A-5-3, that CAO would instruct his employer to withhold ten percent of his wages to satisfy his support obligations. On July 1, 1995 the name of the Child Advocate Office was changed to the Child Support Enforcement Division (“CSED”). See W.Va.Code § 48A-2-12. Upon receiving the notice of withholding, Plaintiff asked his attorney, Larry L. Skeen, to notify CSED of their error. By letter of July 11, 1995, Mr. Skeen informed CSED that Plaintiff in fact owed no child support, but did not mention or attach the Circuit Court order. Skeen “advised that unless the ... notice of withholding is immediately withdrawn a federal suit will be instituted immediately against your Department and against those employees personally involved seeking damages both compensatory and punitive for this outrage.” Defs.’ Mem.Supp. SummJ. Ex. 1.

After receiving this letter, CSED responded by letter of July 27,1995, informing Plaintiff that he owed no current child support, but did owe back support and interest on back support. Skeen disputed this by letter of August 2, 1995 and attached a copy of the cheek Plaintiff paid Judith Roush “in full settlement of all claims she might have against my client.” Pl.’s Resp. Ex. 15. Again, Skeen failed to mention or attach the Circuit Court order. In the letter, Skeen advised CSED he would file a petition in the Circuit Court of Kanawha County to enjoin further collection efforts by the agency. Both of Skeen’s letters were addressed to, “Gentleman” rather than to a specific official, and both were mailed to an address at which none of Defendants worked.

On August 31, 1995 Plaintiffs employer began withholding ten (10) percent of Plaintiffs wages as CSED had ordered. On September 29, 1995 CSED sent a second notice of wage withholding to Plaintiffs employer, instructing it to withhold fifty-five (55) percent of Plaintiffs wages. This second notice was unsigned. On October 4, 1995, before this increased withholding went into effect, Roush sought and obtained from the Circuit Court of Kanawha County an ex parte temporary restraining order enjoining the continued withholding of his wages.2 Defendants to that action were served with the injunction on October 10,1995. According to Defendants here, .service of the temporary injunction on October 10, 1995 was the first notice they had of both Skeen’s letters to the agency and of the erroneous withholding. After service of the injunction, Defendants immediately terminated the withholding and returned to Plaintiff the approximately three hundred dollars ($300.00) withheld from his wages since August 31,1995.

Plaintiff brought this action under 42 U.S.C. § 1983. In addition to Wayne and Dunlap, Betty Justice and Karen Basham were named Defendants. Justice was appointed by the Honorable Elizabeth Y. Halla-nan, Judge of this Court, to implement a consent decree relating to the operations of CAO. See Brinkley v. Hill, No. 1:88-1502 (S.D.W.Va.1993). Basham is a supervisor of Defendant Wayne.

Our court of appeals has stated the standard used to determine whether a motion for summary judgment should be granted or denied as follows:

A moving party is entitled to summary judgment ‘if the pleading, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to [451]*451material fact and that the moving party is entitled to judgment as a matter of law.’ Fed.R.Civ.Pro. 56(c). See Charbonnages de France v. Smith, 597 F.2d 406 (4th Cir.1979).
A genuine issue exists ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In considering a motion for summary judgment, the court is required to view the facts and draw reasonable inferences in a light most favorable to the nonmoving party. Id. at 255, 106 S.Ct. at 2514. The plaintiff is entitled to have the credibility of all his evidence presumed. Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir.1990), cert. denied, 498 U.S. 1109, 111 S.Ct. 1018, 112 L.Ed.2d 1100 (1991). The party seeking summary, judgment has the initial burden to show absence of evidence to support the nonmoving party’s ease. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). The opposing party must demonstrate that a triable issue of fact exists; he may not rest upon mere allegations or denials. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. A mere scintilla of evidence supporting the case is insufficient. Id.

Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.), cert. denied, — U.S. -, -, 115 S.Ct. 67, 68, 130 L.Ed.2d 24 (1994).

It is not entirely clear from Plaintiffs complaint or his response to Defendant’s motion for summary judgment the precise theories on which he proceeds. Plaintiff states, “If [Defendants’] actions were wilful and wanton, callously indifferent or were in deliberate disregard of [Plaintiff’s rights, then ... such conduct does provide a sufficient foothold for monetary recovery under § 1983.” Pl.’s Resp. at 13; see also

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Bluebook (online)
949 F. Supp. 449, 1996 WL 748209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roush-v-justice-wvsd-1996.