United States District Court, N.D. West Virginia
SCOTT T. BALLOCK, Plaintiff,
ELLEN RUTH COSTLOW AND STATE TROOPER MICHAEL KIEF Defendants.
AMENDED  MEMORANDUM OPINION AND ORDER
GRANTING KIEF'S MOTION FOR SUMMARY JUDGMENT [DKT NO.
114], GRANTING IN PART COSTLOW'S MOTION FOR SUMMARY
JUDGMENT [DKT. NO. 116], AND DISMISSING THE PLAINTIFF'S
§ 1983 CLAIMS WITH PREJUDICE AND HIS SUPPLEMENTAL STATE
LAW CLAIMS WITHOUT PREJUDICE
M. KEELEY UNITED STATES DISTRICT JUDGE
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”). 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
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
Family Court Proceedings and Criminal Charges
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
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 review of the documents, Scott
advised Gaskins to charge Ballock with Harassment and
Harassment by Electronic Device (Dkt. Nos. 116-1 at 7, 116-6
through 116-16). See also W.Va. Code §§
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).
contends that the investigation and arrest were part of a
coordinated effort between Kief and Costlow to “benefit
Costlow in 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).
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
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).
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). 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).
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).
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.
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)
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).
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.
The Instant Case
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.
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).
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.
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
(Dkt. No. 49). He asserts those same claims against Costlow,
well as claims of defamation under § 1983 and state law,
and slander and breach of contract of under state law.
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).
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.
APPLICABLE FEDERAL LAW
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)).
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.
CLAIMS AGAINST DEFENDANT STATE TROOPER MICHAEL KIEF
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
Counts One and Four: Abuse of Process under § 1983 and
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).
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
State Abuse of Process Claim
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
tort of abuse of process focuses on the use of the process
itself, and not ...