United States District Court, N.D. West Virginia
SCOTT T. BALLOCK, Plaintiff,
ELLEN RUTH COSTLOW, STATE TROOPER MICHAEL KIEF, STATE TROOPER RONNIE M. GASKINS, and STATE TROOPER CHRIS BERRY Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO.
48] AND ADOPTING REPORT AND RECOMMENDATION [DKT. NO.
M. KEELEY UNITED STATES DISTRICT JUDGE.
April 6, 2017, the plaintiff, Scott T. Ballock
(“Ballock”), filed a pro se Complaint
pursuant to 42 U.S.C. § 1983, naming as defendants his
former spouse, Ellen Ruth Costlow (“Costlow”),
and West Virginia State Troopers Michael Kief, Ronnie M.
Gaskins, and Chris Berry (“State Troopers”)(Dkt.
No. 1). Ballock's claims arise out of a September 2013
arrest, which he characterizes as “an attempt to assist
Costlow in an ongoing Family Court dispute.”
Id. at 1. Pursuant to 28 U.S.C. § 636(b) and
the local rules, the Court referred this matter to the
Honorable Michael J. Aloi, United States Magistrate Judge for
initial screening and a Report and Recommendation
(“R&R”) (Dkt. No. 5).
25, 2017, Ballock filed an Amended Complaint (Dkt. No. 14),
which the State Troopers moved to dismiss on June 8, 2017
(Dkt. No. 15). Costlow then moved to dismiss the claims
against her on June 9, 2017 (Dkt. No. 17).
October 12, 2017, Ballock moved for and was granted leave to
file a Second Amended Complaint (Dkt. No. 42, 44). At a
hearing held on October 13, 2017, Magistrate Judge Aloi heard
argument on the defendants' pending motions to dismiss.
R&R entered on December 6, 2017, Magistrate Judge Aloi
recommended that the Court grant in part and deny in part the
defendants' motions to dismiss (Dkt. No. 48). He first
determined that Ballock's claims are not barred by the
applicable statutes of limitations; that Ballock's
termination from employment rendered the defendants'
argument as to lack of damages moot; and that Ballock had
alleged facts sufficient to show that Costlow was acting
under color of law as to the § 1983 claims against her.
Id. at 6-10.
analyzing Ballock's claims, Magistrate Judge Aloi also
concluded that Ballock had sufficiently pled claims for abuse
of process (Counts One and Four), malicious prosecution
(Counts Two and Five), conspiracy (Count Six), defamation
(Counts Seven and Twelve), slander (Count Eight), tortious
interference with contract (Counts Ten and Eleven), and
breach of contract (Count Thirteen), and recommended that the
defendants' motions to dismiss be denied as to those
claims. Id. at 43-44. He further concluded, however,
that Ballock had failed to allege facts sufficient to support
claims for denial of access to the courts (Count Three) and
“color of law” (Count Fourteen) and recommended
dismissal of those claims. Id. at 44. Finally, he
concluded that Ballock had failed to plead the severity
element of his intentional infliction of emotional distress
claim (Count Nine) with sufficient specificity and directed
Ballock to amend his complaint regarding this issue within
fourteen (14) days of entry of the R&R. Id. at
Ballock timely filed a Third Amended Complaint, alleging
additional facts regarding the severity of the emotional
distress he allegedly suffered (Dkt. No. 49), Magistrate
Judge Aloi issued a second R&R, finding that
Ballock's complaints pled severity of distress with
sufficient specificity to survive a motion to dismiss (Dkt.
No. 50 at 2). Accordingly, he recommended that the Court deny
the defendants' motions to dismiss Ballock's claim
for intentional infliction of emotional distress.
the R&Rs informed the parties of their right to file any
objections within fourteen (14) days and further warned that
the failure to do so would result in waiver of the right to
appeal from the judgment of this Court. The parties filed no
reviewing a magistrate judge's R&R, the Court must
review de novo only the portions to which an
objection has been timely made. 28 U.S.C. §
636(b)(1)(C). On the other hand, “the Court may adopt,
without explanation, any of the magistrate judge's
recommendations to which the prisoner does not object.”
Dellacirprete v. Gutierrez, 479 F.Supp.2d 600,
603-04 (N.D. W.Va. 2007) (citing Camby v. Davis, 718
F.2d 198, 199 (4th Cir. 1983)). Courts will uphold those
portions of a recommendation to which no objection has been
made unless they are “clearly erroneous.” See
Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005).
no party has objected, the Court need not conduct a de
novo review. Dellacirprete, 479 F.Supp.2d at
603-04. Therefore, following review of the R&Rs and the
record for clear error, it:
1) ADOPTS the R&Rs (Dkt. Nos. 48, 50);
2) GRANTS in PART the defendants'
motions to dismiss (Dkt. Nos. 15, 17) and
DISMISSES Counts Three and Fourteen
WITH PREJUDICE; and
3) DENIES in PART the defendants'
motions to dismiss as to Counts One, Two, Four, Five, Six,
Seven, Eight, Nine, Ten, Eleven, Twelve, and ...