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Ballock v. Costlow

United States District Court, N.D. West Virginia

December 20, 2019

SCOTT T. BALLOCK, Plaintiff,



         According to the plaintiff, Scott T. Ballock (“Ballock”), the Federal Bureau of Investigation (“FBI”) terminated his employment as a consequence of his arrest by the West Virginia State Police in 2013. Characterizing the events leading to his termination as an elaborate conspiracy, Ballock filed this lawsuit under 42 U.S.C. § 1983 and West Virginia state law against his former spouse, Ellen Ruth Costlow (“Costlow”), and three (3) West Virginia State Troopers, Michael Kief (“Kief”), Ronnie M. Gaskins (“Gaskins”), and Chris Berry (“Berry).[1] Pending before the Court are motions for summary judgment filed by Kief and Costlow, the remaining defendants in the case (Dkt. Nos. 114; 116). For the reasons that follow, the Court GRANTS Kief's motion, GRANTS IN PART Costlow's motion, and DISMISSES the federal claims with prejudice.

         I. BACKGROUND

         As it must, the Court recites the facts in the light most favorable to the non-moving party, Ballock. See Providence Square Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir. 2000).

         A. Family Court Proceedings and Criminal Charges

         After a tumultuous marriage, Costlow filed for divorce from Ballock in October, 2012 (Dkt. No. 116-1 at 2). Almost a year later, in August, 2013, Ballock's father, Tom Ballock, called Kief to accuse Costlow of having an affair with Berry (Dkt. No. 116-1 at 6). As part of his investigation into the allegation, Kief questioned Costlow, who then filed a criminal complaint against Ballock, alleging harassment. Id. at 7, 8. Kief assigned Gaskins to investigate that complaint.

         Based on his review of 3, 000 email and text messages between Ballock and Costlow contained on a DVD-R provided to him by Costlow, Gaskins submitted a report and the DVD-R to Monongalia County Assistant Prosecuting Attorney Cindy Scott (“Assistant Prosecuting Attorney Scott”) for her consideration. After her reviewing the documents, Scott advised Gaskins to charged Ballock with Harassment and Harassment by Electronic Device (Dkt. Nos. 116-1 at 7, 116-6 through 116-16). See also W.Va. Code §§ 61-2-9a(b), 61-3C-14a(a)(2).

         Thereafter, on September 12, 2013, Monongalia County Magistrate Sandy Holepit (“Magistrate Holepit”) received Gaskins's complaint and, finding probable cause, issued two warrants for Ballock's arrest. The West Virginia State Police (“State Police”) arrested Ballock the next day outside the Monongalia County Family Court (“Family Court”) courtroom, during a recess in a child custody hearing involving Ballock and Costlow. (Dkt. Nos. 49 at 5; 116-20).

         Ballock contends that the investigation and arrest were part of a coordinated effort between Kief and Costlow to “benefit Costlow in the Family Court proceedings and to damage and harm [him] personally.” (Dkt. Nos. 49 at 5). In support, he relies on a comment made by the Family Court judge that Ballock's arrest may have been the result of an effort to influence him (Dkt. No. 114-26). Ballock asserts that, before the hearing, Costlow had emailed Gaskins providing the date and time of the custody hearing (Dkt. No. 114-26). Kief contends that the location of the arrest was based solely on the safety concerns of the State Police officers who knew that Ballock, as an FBI agent otherwise authorized to carry a firearm, would not be armed inside the Monongalia County courthouse (Dkt. No. 114-19 at 10).

         On May 9, 2014, the Family Court entered a final divorce decree that included “permanent injunctive relief, ” enjoining Ballock and Costlow from “contact[ing] any employer regarding the other party in any fashion whatsoever” (Dkt. No. 117-1) Attached to the decree was a handwritten “Mutual No. Contact Order” that stated, in pertinent part:

She is not to communicate with SB's Employer FBI, ever He is not to contact/communicate with EB's employer, ever, present or future Email & Text only as to kids Nothing will be posted on the internet by SB or TB

Id. (formatting in original).

         Nearly two years after entry of this divorce decree, in April, 2016, the Monongalia County Prosecuting Attorney moved for dismissal of the criminal charges against Ballock (Dkt. No. 49 at 6). As part of the motion, she included a written acknowledgment by Ballock (1) that probable cause had existed for his arrest, and (2) that he had continued to communicate with Costlow long after she directed him to stop (Dkt. No. 114-21 at 3).[2] Also as part of the dismissal of the harassment charges, Costlow agreed not to communicate “any disparaging information or commentary to Scott Ballock's employer or place of employment.” Id. Finally, both Ballock and Costlow agreed that the Family Court would retain jurisdiction over any future family issues. Ballock's criminal charges were expunged on July 13, 2016 (Dkt. No. 49 at 7).

         Ballock now argues that the dismissal of the criminal charges evinces the malign nature of Kief's motive. He notes the apparent close contact between Kief and Costlow from the time the criminal case against him was filed until his termination by the FBI. He further points to the fact that Kief and Costlow exchanged emails on topics ranging from evidence of Ballock's defense to suggested topics of discussion for Kief when he met with the FBI (Dkt. Nos. 114-27; 114-29).

         B. FBI Termination

         During the State Police investigation, either Kief or Gaskins notified the FBI that Ballock was under criminal investigation for harassing his wife (Dkt. Nos. 114-1 at 8; 114-3 at 11). Pointing out that Gaskins had provided the FBI with a copy of the DVD-R containing Ballock's email and text messages to Costlow (Dkt. No. 114-1 at 8-9), Ballock contends that this disclosure must have prompted the FBI to initiate its own investigation into Costlow's allegations of harassment. (Dkt. Nos. 114-22 at 1). But no matter what may have prompted the FBI's investigation, it is undisputed that, as part of that investigation, the FBI interviewed both Kief and Costlow. (Dkt. Nos. 114-1 at 19; 114-3 at 16-17; 114-24 at 5; 116-1 at 9). According to Ballock's theory of the case, these interviews establish that Costlow, with the assistance of Kief, violated the no-contact agreements that were attached to the motion to dismiss Ballock's criminal charges and also her divorce decree.

         After the conclusion of the FBI's investigation, its Office of Professional Responsibility (“OPR”) sent a letter to Ballock on April 10, 2017, notifying him that, by a preponderance of evidence standard, it had concluded that he had committed an offense under W.Va. Code § 61-3C-14(a) (Dkt. No. 114-22) and was recommending his dismissal (Dkt. No. 114-22). On September 21, 2017, the FBI's Assistant Director of Human Resources concurred with the OPR's recommendation and dismissed Ballock for conduct representing a willful and intentional violation of FBI rules and regulations (Dkt. No. 114-19 at 1). Ballock appealed his termination and, in September, 2017, his case was remanded for re-adjudication (Dkt. No. 114-25 at 1-2).

         Following that re-adjudication, the OPR, on November 15, 2018, again recommended that Ballock be dismissed. The OPR based its recommendation on three independent reasons: (1) misuse of a weapon/safety violation; (2) unprofessional off-duty conduct; and (3) lack of candor/lying under oath (Dkt. No. 114-24). Ultimately, on March 5, 2019, the FBI's Acting Assistant Director terminated Ballock (Dkt. No. 114-25). Relevant to the issues raised here, the FBI's letter of dismissal specifically states that it did not consider Ballock's arrest in reaching its decision. Ballock, however, insists that his arrest triggered a chain of events ultimately leading to his termination. Id. at 4.

         C. The Instant Case

         Ballock alleges that shortly after he filed his pro se complaint on April 6, 2017, naming State Troopers Kief, Gaskins, and Berry as defendants, an unidentified representative of the State Police visited the FBI's Clarksburg, West Virginia Resident Agency to complain about Ballock's lawsuit (Dkt. No. 49 at 31). While Kief acknowledges that he called the FBI on April 10, 2017, but only after Ballock harassed the State Troopers at the Morgantown State Police detachment (Dkt. No. 114-1 at 11), he adamantly denies either visiting the FBI or filing a complaint against Ballock (Dkt. No. 114-3 at 20, 23). Ballock, for his part, admits that he visited the Morgantown State Police detachment but claims his purpose was not harassment but to serve the State Police defendants in person with his lawsuit. Id.

         D. Procedural Background

         After Ballock filed his first complaint pro se on April 6, 2017 (Dkt. No. 1), three amendments followed. He was represented by counsel by the time he filed his second amended complaint on October 13, 2017 and third amended complaint on December 20, 2017 (Dkt. Nos. 45, 49). As currently postured, his third amended complaint alleges causes of action under both 42 U.S.C. § 1983 and West Virginia state law (Dkt. No. 49).

         Following the conclusion of discovery, the State Trooper defendants and Costlow filed motions for summary judgment on July 8, 2019 (Dkt. Nos. 114; 116). Ballock also filed a motion for partial summary judgment as to Costlow and Kief on July 9, 2019 (Dkt. No. 117). On October 11, 2019, the Court denied Ballock's motion (Dkt. No. 139). It also granted in part the State Trooper defendants' motion and dismissed Berry from the case with prejudice (Dkt. No. 139). Later, on December 6, 2019, the parties stipulated to the dismissal, with prejudice, of all claims against Gaskins (Dkt. No. 146). Thus, only Kief remains as a State Trooper defendant.

         Ballock's claims against Kief include allegations of (1) abuse of process under § 1983 and state law; (2) malicious prosecution under § 1983 and state law; (3) conspiracy under § 1983 and state law; (4) intentional infliction of emotional distress under state law; and (5) tortious interference with an employment contract under state law. Id. He asserts those same claims against Costlow, [3]as well as claims of defamation under § 1983 and state law, and slander and breach of contract of under state law. Id.


         Summary judgment is appropriate where the “depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials” establish that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed R. Civ. P. 56(a), (c)(1)(A). When ruling on summary judgment, the Court reviews evidence “in the light most favorable” to the nonmoving party. Providence Square Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir. 2000). The Court must avoid weighing the evidence or determining its truth and limit its inquiry solely to a determination of whether genuine issues of triable fact exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

         The moving party bears the initial burden of informing the Court of the basis for the motion and of establishing the nonexistence of genuine issues of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has made the necessary showing, the non-moving party “must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256 (internal quotation marks and citation omitted). The “mere existence of a scintilla of evidence” favoring the non-moving party will not prevent the entry of summary judgment; the evidence must be such that a rational trier of fact could reasonably find for the nonmoving party. Id. at 248-52.


         Title 42 U.S.C. § 1983 provides a remedy for those who suffer a “deprivation of any rights, privileges, or immunities secured by the Constitution and laws” by one acting “under color of any statute, ordinance, regulation, custom, or usage, of any State.” The essential elements of a § 1983 action are that the defendant (1) was acting under color of state law and (2) deprived plaintiff of a right, privilege or immunity secured by the Constitution or laws of the United States. Clark v. Link, 855 F.2d 156, 161 (4th Cir. 1988) (citing Briley v. California, 564 F.2d 849, 853 (9th Cir. 1977)). The first element of a § 1983 claim requires the conduct allegedly causing the deprivation of rights to be fairly attributable to the state. Conner v. Donnelly, 42 F.3d 220, 223 (4th Cir. 1994). Generally, a public employee acts under color of law “while acting in his official capacity or while exercising his responsibilities pursuant to state law.” Id. (quoting West v. Atkins, 487 U.S. 42, 50 (1988)).

         Section 1983 is available even if a plaintiff can seek vindication of rights through the enforcement of a state constitution or statute. “The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.” Zinermon v. Burch, 494 U.S. 113, 124 (1990) (quoting Monroe v. Pape, 365 U.S. 167, 183 (1961)). Accordingly, when a court has original jurisdiction over § 1983 claims, it also has supplemental jurisdiction over “all other claims that are so related . . . that they form part of the same case or controversy.” 28 U.S.C. § 1367.

         IV. ANALYSIS


         Kief's role in the events at issue include having contacted Costlow after Tom Ballock called him, and also having assigned Gaskins to investigate the harassment complaint filed by Costlow. In addition, he was present when Ballock was arrested at the Family Court, and also attended the hearing on the state's motion to dismiss the criminal charges against Ballock. He communicated with Costlow via email during the pendency of the state criminal charges and also during the FBI's administrative investigation. He was interviewed by the FBI as part of its investigation, and called the FBI after Ballock visited the State Police detachment.

         1. Counts One and Four: Abuse of Process under § 1983 and State Law

         Kief argues he is entitled to summary judgment on Counts One and Four because Ballock cannot point to a willful or malicious misuse of the criminal complaint and arrest process, and because the statute of limitations has run on Ballock's § 1983 cause of action (Dkt. No. 114-1 at 15-17).

         In support of his abuse of process claims, Ballock contends three improper purposes motivated Kief's actions: (1) intent to prejudice the Family Court judge; (2) intent to have Ballock terminated by the FBI; and (3) intent to intimidate Ballock's father, who maintained a website containing disparaging remarks about Costlow (Dkt. Nos. 117 at 4-5; 124 at 19). As explained below, even if true, none of these purposes establishes an improper use of the process itself.

         a. State Abuse of Process Claim

         An abuse of process claim consists of the willful or malicious misuse or misapplication of lawfully issued process to accomplish some purpose not intended or warranted by that process. Williamson v. Harden, 585 S.E.2d 369, 372 (W.Va. 2003) (quoting Preiser v. MacQueen, 352 S.E.2d 22, 28 (W.Va. 1985)). The elements of an abuse of process claim include “first, an ulterior purpose, and second, a willful act in the use of the process not proper in the regular conduct of the proceeding.” Preiser, 352 S.E.2d at 28 n.8 (emphasis added) (citation omitted). Notably, “there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions.” Id.

         The tort of abuse of process focuses on the use of the process itself, and not ...

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