Ballock v. Costlow et al

Filing 58

ORDER ADOPTING REPORT AND RECOMMENDATION (DKT. NO. 48 ) AND ADOPTING REPORT AND RECOMMENDATION (DKT. NO. 50 ). The Court adopts the R&Rs 48 and 50 ; grants in part the defendants' motions to dismiss (Dkt. Nos. 15 and 17 ) and DISMISSES Counts 3 and 14 with prejudice and denies in part the defendants' motions to dismiss as to Counts, 1, 2 and 4-13 (Dkt. Nos. 15 and 17 . Signed by Senior Judge Irene M. Keeley on 3/9/18. (mh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

SCOTT T. BALLOCK,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:17CV52
(Judge Keeley)

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. 50]
On 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).
On May 25, 2017, Ballock filed an Amended Complaint (Dkt. No.
14), which the State Troopers moved to dismiss on June 8, 2017

BALLOCK V. COSTLOW ET AL.

1:17CV52

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 48]
AND ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 50]
(Dkt. No. 15). Costlow then moved to dismiss the claims against her
on June 9, 2017 (Dkt. No. 17).
On 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. Id.
In an 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.
After 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

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BALLOCK V. COSTLOW ET AL.

1:17CV52

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 48]
AND ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 50]
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 31, 43.
After 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. Id.
Both of 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 objections.

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BALLOCK V. COSTLOW ET AL.

1:17CV52

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 48]
AND ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 50]
When 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

recommendations

explanation,
to

which

any

the

of

the

prisoner

magistrate
does

not

judge’s
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).
Because 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 Thirteen (Dkt. Nos. 15, 17).

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BALLOCK V. COSTLOW ET AL.

1:17CV52

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 48]
AND ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 50]
It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record.
DATED: March 9, 2018.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

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