Stewart et al v. Logan County Department of Health and Human Resources et al
Filing
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MEMORANDUM OPINION AND ORDER denying plaintiffs' 3 MOTION for a Temporary Restraining Order. Signed by Judge Thomas E. Johnston on 11/9/2012. (cc: attys; any unrepresented party) (cbo)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
BRANDY STEWART, et al.,
Plaintiffs,
v.
CIVIL ACTION NO. 2:12-cv-06644
LOGAN COUNTY DEPARTMENT OF
HEALTH AND HUMAN SERVICES, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is Plaintiffs’ motion for a temporary restraining order [Docket 3.] For the
reasons that follow, the Court DENIES the motion.
I.
BACKGROUND
On October 16, 2012, Plaintiffs filed their Complaint alleging various federal and state
claims against Defendants, including violations of Plaintiffs’ civil rights under 42 U.S.C. § 1983.
Plaintiffs’ allegations center on events surrounding the removal of Plaintiff Brandy Stewart’s four
minor children from her custody by Defendant Boone County Department of Health and Human
Resources personnel, the institution of civil abuse and neglect proceedings against Ms. Stewart,
the placement of Ms. Stewart’s children with a foster family (a member of which is allegedly a
juvenile “known sexual offender”), and Defendant Boone County Sheriff Department’s criminal
investigation of Plaintiff Johnny Stewart (Plaintiff Brandy Stewart’s husband) for being an alleged
“sex offender.”
(Docket 2 at 2-11.)
Filed contemporaneously with their Complaint is Plaintiff’s motion for a temporary
restraining order [Docket 3.]
The motion generally states that Plaintiffs are entitled to a
temporary restraining order releasing Plaintiffs’ children from the State’s custody and returning
them to Plaintiffs’ custody or, alternatively, placing the children in a new foster home. (Id. at 3.)
Plaintiffs assert that they have complied with the requirements of Federal Rules of Civil Procedure
65(b) because they have filed a “verified complaint” and the movant’s attorney has certified in
writing the reasons why notice to Defendants should not be required. (Id.)
II.
GOVERNING LAW
Federal Rule of Civil Procedure 65(b) governs temporary restraining order procedure.
Rule 65(b)(1) provides:
(1) Issuing Without Notice. The court may issue a temporary restraining order
without written or oral notice to the adverse party or its attorney only if:
(A)
specific facts in an affidavit or a verified complaint clearly show
that immediate and irreparable injury, loss, or damage will result to
the movant before the adverse party can be heard in opposition; and
(B)
the movant’s attorney certifies in writing any efforts made to give
notice and the reasons why it should not be required.
III.
DISCUSSION
Plaintiffs’ motion is fatally deficient in several respects. Plaintiffs represent in their
motion that their Complaint is verified. It is not. Nor has Plaintiffs’ attorney complied with the
certification requirements of Rule 65(b)(1)(B). While it is true that paragraph 8 of Plaintiff’s
motion states “Defendants need no further notice that this action is being filed in that each
continues to collude with one another to misrepresent, attack the Plaintiffs with new investigations
and create records necessary to show compliance,” this cursory and cryptic allegation is not
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certified by Plaintiffs’ attorney as required by Rule 65(b)(1)(B). Additionally, Plaintiffs’ motion,
which is unattended by a supporting memorandum, ignores Rule 7.1(a)((2) of the Local Rule of
this Court. These several deficienciescoupled with the separate and important question of
whether this Court should decline to consider important family law and criminal matters currently
pending in the state courtsare fatal to Plaintiffs’ motion.1
Accordingly, the Court DENIES Plaintiff’s motion for a temporary restraining order
[Docket 3.]
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:
NOVEMBER 9, 2012
1 The Court infers from Plaintiff’s Complaint that state court proceedings relating to Plaintiffs’
various allegations are on-going, although the Complaint is not clear on this point. The question
of whether abstention principles require dismissal of this case is reserved for another day.
3
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