Ballock v. Costlow, CIVIL ACTION NO. 1:17CV52

Decision Date23 December 2019
Docket NumberCIVIL ACTION NO. 1:17CV52
CourtU.S. District Court — Northern District of West Virginia
Parties Scott T. BALLOCK, Plaintiff, v. Ellen Ruth COSTLOW and State Trooper Michael Kief, Defendants.

430 F.Supp.3d 146

Scott T. BALLOCK, Plaintiff,
v.
Ellen Ruth COSTLOW and State Trooper Michael Kief, Defendants.

CIVIL ACTION NO. 1:17CV52

United States District Court, N.D. West Virginia.

Signed December 23, 2019


430 F.Supp.3d 153

Charles J. Crooks, Crooks Law Firm PLLC, Morgantown, WV, Frederick R. Juckniess, Pro Hac Vice, Juckniess Law Firm, PLC, Ann Arbor, MI, for Plaintiff.

P. Todd Phillips, Morgantown, WV, for Defendant Ellen Ruth Costlow.

Mark Jeffries, Steptoe & Johnson PLLC, Bridgeport, WV, Monte L. Williams, Steptoe & Johnson, PLLC, Morgantown, WV, for Defendant State Trooper Michael Kief.

AMENDED1 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

IRENE M. KEELEY, UNITED STATES DISTRICT JUDGE

430 F.Supp.3d 154

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").2 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 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 §§ 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).

430 F.Supp.3d 155

Ballock 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).

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).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).

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,

430 F.Supp.3d 156

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) 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...

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