UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RODNEY D. ROUSH,
Plaintiff-Appellant,
v.
KAREN BASHAM, Regional Manager;
BETTY JUSTICE; CONNIE DUNLAP, an
employee of the Child Advocate
Office; ROBIN WAYNE,
Defendants-Appellees,
and
No. 97-2504
GRETCHEN O. LEWIS, Secretary of
the Department of Health and
Human Resources; DEPARTMENT OF
HEALTH AND HUMAN
RESOURCES OF THE STATE OF WEST
VIRGINIA; KANAWHA COUNTY CHILD
ADVOCATE OFFICE, a division of the
State of West Virginia,
Defendants.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CA-95-1012-2)
Argued: May 5, 1998
Decided: June 18, 1998
Before NIEMEYER and WILLIAMS, Circuit Judges, and
HOWARD, United States District Judge for the
Eastern District of North Carolina, sitting by designation.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Larry Lynn Skeen, SKEEN & SKEEN, Ripley, West Vir-
ginia, for Appellant. Kelly Renee Reed, STEPTOE & JOHNSON,
Charleston, West Virginia, for Appellees. ON BRIEF: Jan L. Fox,
STEPTOE & JOHNSON, Charleston, West Virginia, for Appellees.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
On November 14, 1995, Rodney D. Roush filed suit pursuant to 42
U.S.C.A. §§ 1981 (West 1994) and 1983 (West Supp. 1998) against
Gretchen O. Lewis, Secretary of the Department of Health and
Human Resources of the State of West Virginia; Karen Basham,
Regional Manager of the Kanawha County Child Advocate Office;
and Connie Dunlap, an employee of the Child Advocate Office.1 On
May 30, 1996, Roush filed an amended complaint adding defendants
Betty Justice and Robin Wayne and dismissing Gretchen Lewis.
Roush's amended complaint alleged that the defendants unconstitu-
tionally deprived him of his property without due process of law by
improperly garnishing his wages.2 Roush appeals from the district
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1 The Child Advocate Office was later renamed the Child Support
Enforcement Division. For convenience, we refer to the agency as the
Child Advocate Office throughout the opinion.
2 Roush also alleged that W. Va. Code §§ 48A-5-1 to -9 (1996 & Supp.
1997) is unconstitutional to the extent that it allows the garnishment of
a West Virginia resident's wages, without the right to a hearing, for a
nonexistent debt or obligation, and alleged that Robin Wayne and Connie
Dunlap were inadequately trained and supervised by Karen Basham and
Betty Justice.
2
court's revised memorandum opinion and order granting summary
judgment for the defendants. Finding no error, we affirm.
We review a district court's grant of summary judgment de novo.
See Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167
(4th Cir. 1988). Summary judgment is appropriate"if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to a judg-
ment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). In considering whether summary
judgment is proper, all inferences to be drawn from the underlying
facts must be viewed in the light most favorable to the nonmoving
party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Viewed in the light most favorable to Roush, the facts are as fol-
lows: Roush and his wife, Judith Annette Roush, were divorced by
Order of the Circuit Court of Kanawha County, West Virginia, on
January 27, 1988. Pursuant to that Order, Judith Roush was granted
custody of their minor child, and Roush was ordered to pay child sup-
port and alimony. Roush fell into arrears on the payments, and the
Child Advocate Office garnished his wages. On February 9, 1991,
however, the custody of the minor child was transferred to Roush, and
Judith Roush was ordered to pay child support to Roush. Although
Roush was still in arrears on his support obligations, Roush and his
ex-wife signed a Complete Release and Settlement Agreement --
entered as an Order of the Circuit Court of Kanawha County on July
8, 1993 -- settling all issues between them, including all money owed
from one to the other, including spousal and child support. Conse-
quently, the Child Advocate Office notified Roush's employer on July
15, 1993, to cease withholding Roush's wages.
In 1994, the case records of the entire Child Advocate Office were
completely automated. The new computer system was intended to
direct the appropriate personnel about the proper handling of each
support case. The information on Roush, and apparently many others,3
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3 Roush is not alone in his experience with the Child Advocate Office's
ineptitude. Litigation arising from shortcomings in the operation of child
3
was not entered into the system correctly, however. The computerized
records failed to reflect the settlement agreement of July 8, 1993, and
indicated that Roush was still in arrears in his support obligations.
On June 29, 1995, the Child Advocate Office sent Roush's
employer a letter stating that Roush owed an arrearage of $12,183.29
and directing it to withhold Roush's wages in the amount of ten per-
cent per pay period. Roush's employer provided him with a copy of
the notice and on June 30, 1995 began withholding ten percent of his
wages, in compliance with the directives of the Child Advocate
Office. Roush contacted his attorney, who wrote a letter to the Child
Advocate Office on July 11, 1995, advising that Roush did not owe
any child support. The Child Advocate Office sent a second notice on
July 27, 1995, to both Roush and his employer stating that Roush was
not currently obligated to pay support but did owe back support
and/or interest. In response to the July 27 notice, Roush's counsel
wrote to the Child Advocate Office again on August 2, 1995, reiterat-
ing that Roush did not owe any back support or interest. Roush's
counsel enclosed a copy of Roush's check to Judith Roush in full set-
tlement of all claims she might have against him. Roush's counsel
never received a reply from the Child Advocate Office to his letters.4
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support enforcement in West Virginia led to the entry of an initial federal
court order on February 28, 1990, by United States District Judge Eliza-
beth Hallanan, imposing procedural requirements and minimum staffing
levels on certain regions of the Child Advocate Office, including Kana-
wha County. See Brinkley v. Hill, 981 F. Supp. 423, 430 (S.D. W. Va.
1997) (reviewing procedural history of ongoing litigation involving the
Child Advocate Office). Betty Justice was appointed to oversee the
implementation of the federal court order in the Kanawha County Child
Advocate Office. The failure of the various regions of the Child Advo-
cate Office to comply with the district court's order, however, resulted
in at least eight subsequent orders by the district court. See id. at 430-37
(noting the district court's nine-year role in micro-managing the West
Virginia Child Advocate Office). Judge Hallanan noted that West Vir-
ginia was one of only seven localities to receive a grade of "F" with
respect to its child support enforcement from the Subcommittee on Pub-
lic Assistance and Unemployment Compensation, of the House Commit-
tee on Ways and Means. See id. at 436.
4 Appellees argue that Roush's counsel failed to address his letters to
Ms. Dunlap or to the office where she was located. Both the June 29,
4
Another notice of withholding from the Child Advocate Office, dated
September 29, 1995, directed that fifty-five percent of Roush's net
pay be withheld to apply toward an arrearage of $12,418.28.5
The fifty-five percent withholding never went into effect because
Roush's counsel quickly obtained a temporary restraining order on
October 4, 1995, from the Circuit Court of Kanawha County restrain-
ing the Appellees from further withholding Roush's wages. Karen
Basham was personally served with the injunction on October 10,
1995. She immediately terminated Roush's wage withholding. The
Circuit Court subsequently entered an order on December 4, 1995,
permanently enjoining Appellees from withholding from Roush's
wages any amounts for child support or alimony arising from his mar-
riage to Judith Roush and directing Appellees to return any funds they
had received from the improper withholding. Approximately $300.00
had been improperly withheld from Roush's wages in accordance
with the instructions from the Child Advocate Office. The withheld
wages were returned to Roush.
Roush filed suit in the Southern District of West Virginia on
November 14, 1995, pursuant to 42 U.S.C.A. SS 1981 (West 1994)
and 1983 (West Supp. 1998). On November 4, 1996, Appellees
moved for summary judgment. In ruling on Appellees' motion for
summary judgment, the district court noted that Appellees' "actions
were far from laudable." Roush v. Justice, C.A. No. 2:95-1012, at 8
(S.D. W. Va. July 14, 1997). We agree. Appellees were undoubtedly
negligent and, moreover, violated West Virginia law in ordering
Roush's wages withheld to satisfy a nonexistent support obligation.
An injury to life, liberty or property caused by the mere negligence
of state officials is insufficient to constitute a deprivation of due pro-
cess pursuant to the Due Process Clause of the Fourteenth Amend-
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1995, notice and the September 29, 1995, notice of withholding, how-
ever, directed that all information regarding the obligor should be sent to
P.O. Box 3227, Charleston, West Virginia 25332-3227. The notices did
not mention the new address on Capitol Street to which the Child Advo-
cate Office had moved.
5 It is unclear whether the September 29 notice was ever sent to Roush
or his employer.
5
ment. See Daniels v. Williams, 474 U.S. 327, 335-36 (1986); Pink v.
Lester, 52 F.3d 73, 77 (4th Cir. 1995). Accordingly, the district court
properly granted summary judgment for Appellees. The district court
also held that Roush's claim against Basham and Justice for the "inad-
equate training and supervision" of Dunlap and Wayne must fail
because "[a] claim of inadequate training under section 1983 cannot
be made out against a supervisory authority absent a finding of a con-
stitutional violation on the part of the person being supervised."
Temkin v. Frederick County Comm'rs, 945 F.2d 716, 724 (4th Cir.
1991). Thus, the district court properly granted summary judgment
for Appellees Basham and Justice. Finally, the district court properly
rejected Roush's claim that West Virginia Code § 48A-5-1, et seq. is
unconstitutional.
We have reviewed the record, briefs, and pertinent case law in this
matter, and we have had the benefit of oral argument. Our careful
review persuades us that the rulings of the district court were correct.
Accordingly, we affirm on the reasoning set forth in the district
court's thorough opinion. See Roush v. Justice , C.A. No. 2:95-1012
(S.D. W. Va. July 14, 1997).
AFFIRMED
6