Noonan v. Kane

195 F. Supp. 3d 737, 2016 U.S. Dist. LEXIS 94019, 2016 WL 3902903
CourtDistrict Court, E.D. Pennsylvania
DecidedJuly 19, 2016
DocketCIVIL ACTION NO. 15-6082
StatusPublished
Cited by1 cases

This text of 195 F. Supp. 3d 737 (Noonan v. Kane) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Noonan v. Kane, 195 F. Supp. 3d 737, 2016 U.S. Dist. LEXIS 94019, 2016 WL 3902903 (E.D. Pa. 2016).

Opinion

MEMORANDUM

Bartle, District Judge.

Plaintiff are Frank Noonan (“Noonan”), Rahdy Feathers (“Feathers”), Richard A. Sheetz, Jr. (“Sheetz”), E. Marc Costanzo (“Costanzo”), and Frank Fina (“Fina”), four of whom are former high level employees of the Office of the Attorney General of Pennsylvania (“OAC”) and one of whom is a retired Commissioner of the Pennsylvania State Police. They have filed this action against: Pennsylvania Attorney General Kathleen Kane (“Kane”); Michael Miletto (“Miletto”), an investigator for the Office of the Attorney General; the Philadelphia Daily News; one of its reporters, Christopher Brennan (“Brennan”); and Philadelphia Media Network, LLC and Philadelphia Media Network (Digital) LLC, which together own the Philadelphia Daily News.

Noonan is the retired Commissioner of the Pennsylvania- State Police. Feathers is [740]*740a retired Regional Director of the Bureau of Narcotics and Investigation and Control of the OAG. Sheetz served as a former Executive Deputy Attorney General Directing the Criminal Law Division of the OAG. Costanzo is a former Deputy Attorney General for the OAG. Finally, Fina is a former Chief Deputy Attorney General for the OAG.1 All five plaintiffs are citizens of the Commonwealth of Pennsylvania.

Plaintiffs sue Kane under 42 U.S.C. § 1983. They allege that she retaliated against them for engaging in speech protected by the First Amendment. Costanzo and Fina also plead that Kane, Miletto, and Brennan conspired to retaliate against them for the same protected speech. Finally, Costanzo and Fina assert defamation and false light claims under Pennsylvania law against Brennan, Philadelphia Media Network, LLC and Philadelphia Media Network (Digital) LLC. We have supplemental jurisdiction over these state-law claims pursuant to 28 U.S.C. § 1367.

Before the court are three motions filed by Kane, Miletto, and the Media Defendants (Brennan, the Philadelphia Daily News, Philadelphia Media Network (Digital) LLC, and Philadelphia Media Network LLC) to dismiss plaintiffs’ First Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. Kane and Miletto also rely on the doctrine of qualified immunity. Kane further argues that the First Amended Complaint does not meet the pleading requirements under Rule 8(a).

I.

The facts set forth in the First Amended Complaint, taken in the light most favorable to plaintiffs, are as follows.

In early 2012, Kane announced her candidacy to become Attorney General of Pennsylvania. During her campaign, Kane criticized the OAG for its handling of the high-profile investigation and subsequent prosecution of Jerry Sandusky (“San-dusky”), a Penn State University football coach who was ultimately convicted in June 2012 of sexually abusing minors. Plaintiffs had all been involved in the San-dusky investigation during the time that Thomas Corbett was the Attorney General. While campaigning, Kane declared that the OAG had improperly delayed in charging Sandusky and had devoted inadequate resources to the investigation. She promised to initiate an investigation into the handling of the Sandusky case by the OAG if elected. In response, Feathers made public statements refuting Kane’s claims and deriding her as uninformed. Likewise, Costanzo “openly expressed criticism of Kane’s campaign tactics regarding the Sandusky prosecution.” Kane won the election in November 2012 and assumed office in January 2013.

Upon taking office, Kane also put a halt to a long-running bribery investigation in which plaintiffs had been involved. In furtherance of that investigation, the OAG had been relying on an informant named Tyron Ali (“Ali”). Ali had entered into a cooperation agreement with the OAG pursuant to which he would identify Philadelphia elected officials who were prepared to accept bribes. In exchange, the OAG would not pursue charges against Ali.

When Kane assumed office in early 2013, Fina informed her that he believed she could not oversee the Ali investigation because it had the potential to implicate Joshua Morrow (“Morrow”), a friend, sup[741]*741porter, and former campaign employee of Kane. Kane disagreed and retained control of the investigation.

In September 2018, Kane made clear that she would not pursue the bribery investigation, nor would she honor Ali’s cooperation agreement. In response, Ali moved for Kane’s recusal and for enforcement of the agreement. Fina executed an affidavit in support of Ali’s motion. In it, Fina attested to his knowledge of the purported conflict of interest, the investigation, and the cooperation agreement.

Kane ultimately relented, dismissing all charges against Ali. However, beginning in late 2013 and continuing into early 2014, she expressed publicly that the Ali bribery investigation had been racially motivated, that Ali was not credible, and that the investigation lacked “quality” and had inadequate resources. She reported that federal law enforcement officials had characterized the case as “flawed and not prosecutable” and stated that Ali and the lead case agent both believed the investigation to be focused on members of the General Assembly’s Black Caucus. In addition, Kane implied that Fina was to blame for the public disclosure of the investigation. Plaintiffs allege that these statements were false. Fina responded to them in what plaintiffs characterize as a “letter of March 22, 2014 to the public.” Meanwhile, Fina, Noonan, and Sheetz made public statements refuting Kane’s accusations. Around the same time, Kane emailed a media strategist regarding reports of her role in the Ali investigation. In the email, Kane justified her accusations that the investigation was racially motived by stating: “This is war.”

Ultimately, Philadelphia District Attorney Seth Williams (‘Williams”) took over the Ali bribery investigation. Williams reviewed the evidence and found no indication that the investigation was racially motivated. He brought charges against six elected officials, five of whom have pleaded guilty.

Meanwhile, Kane fulfilled her campaign promise to initiate an inquiry into the San-dusky investigation. Fina, who was contacted as part of the inquiry, openly questioned the legality of Kane’s inquiry and Kane’s authority to conduct it. Fina also directed “a variety [of] letters ... and motions” to Geoffrey Moulton (“Moulton”), the attorney in the OAG directing the inquiry, and to the grand jury judge supervising it.

A report of the inquiry into the San-dusky investigation was completed by Moulton in May 2014. Pursuant to the protocol established by the grand jury judge who' was supervising the inquiry, Noonan, Feathers, Sheetz, and Fina had the opportunity to respond to the Moulton report. They did so in June 2014. Plaintiffs criticized the inquiry as “ill-advised” and contended that it hád been “born of political opportunism and posturing.” They also called the claims that had given rise to the report “ill-informed and unfounded.” The report, according to plaintiffs, was merely an “exercise in second guessing” undertaken “to sift for criticism.” These responses were incorporated into a final version of the report.

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E.D. Pennsylvania, 2020

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Bluebook (online)
195 F. Supp. 3d 737, 2016 U.S. Dist. LEXIS 94019, 2016 WL 3902903, Counsel Stack Legal Research, https://law.counselstack.com/opinion/noonan-v-kane-paed-2016.