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Barry R. Tangert, Jr v. Mark Crossan

June 7, 2012


The opinion of the court was delivered by: William W. Caldwell United States District Judge


I. Introduction

Plaintiff, Barry R. Tangert, Jr., a former Pennsylvania State Trooper, filed this civil-rights action asserting a First Amendment retaliation claim and a claim that he was arrested and prosecuted without probable cause. The defendants are Jaime Keating, the first assistant district attorney for Cumberland County, Pennsylvania, and seven members of the Pennsylvania State Police (the Commonwealth Defendants): Mark Crossan, Scott Miller, William Fraley, Gilbert Morrissey, M.L. Henry, Nick Chimienti, and Kathy Jo Winterbottom.

Both claims arise from conversations Plaintiff had with Defendants, one conversation with Keating and the other with certain of the Commonwealth Defendants. Both conversations dealt with Plaintiff's belief that Keating was wrongfully pursuing a state-court criminal case against defendants who were innocent. In the conversation with the Commonwealth defendants, Plaintiff suggested Keating may be violating the law and perhaps should be charged.

We are considering the Commonwealth Defendants' motion to dismiss under Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss under Rule 12(b)(6), "[w]e 'accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.'" Byers v. Intuit, Inc., 600 F.3d 286, 291 (3d Cir. 2010) (quoted case omitted).

With this standard in mind, we set forth the background of this litigation, as Plaintiff alleges it.

II. Background

Plaintiff alleges as follows. At the pertinent times, Plaintiff was a Pennsylvania State Trooper. On some unspecified date, he met with Keating and complained about a particular prosecution Keating was handling. Specifically, he complained that Keating "was improperly and wrongfully prosecuting innocent people for crimes they didn't commit." (Compl. ¶¶ 14 and 22). Plaintiff's purpose in meeting with Keating was "to persuad[e] him to review the situation[,] making it clear that he was approaching and talking to him as a private citizen." (Id. ¶ 22). Plaintiff does not directly allege it, but Keating did not take his advice.

On August 4, 2008, Plaintiff met with defendant Chimienti and complained about Keating's "improper actions." (Id. ¶ 13). "Plaintiff made clear to Chimienti that he was complaining as a citizen[,] wasn't an investigator on the case and was deeply concerned that justice be done." (Id. ¶ 15). "Chimienti agreed with plaintiff and told plaintiff he would help him." (Id. ¶ 16).

"Plaintiff was then taken to the defendant Crossan who launched into a defense of Keating." (Id. ¶ 17). "Plaintiff was then taken to the defendant Miller and subjected to an interrogation of an accusatory nature by Miller and Crossan." (Id. ¶ 18). "Plaintiff . . . suggested that Keating was perhaps breaking the law and should possibly be charged." (Id. ¶ 19). He said "he would go to the newspaper if these wrongs weren't corrected and asked the defendants to review the materials [he] brought to make a determination [if] Keating should be charged" (id. ¶ 20) "for persist[ing] in an unlawful and improper prosecution." (Id. ¶ 21). Plaintiff said he "was not investigating the case and was complaining as a private person and as a citizen . . . ." (Id. ¶ 21).

Defendant Fraley put Plaintiff on "restricted duty," meaning Plaintiff could not carry a gun, badge or identify himself as a state trooper. (Id. ¶ 23). While he was on restricted duty, Plaintiff "was accused of being emotionally and mentally ill," and "defendants Miller, Crossan, and Fraley among others forced the plaintiff to undergo mental evaluations with absolutely no reason or purpose other than to retaliate for questioning Keating who[m] Crossan described as his good friend." (Id. ¶ 26).

During this time, Defendant Morrissey and the other defendants "subjected plaintiff to a pattern of antagonistic mistreatment." (Id. ¶ 27). Morrissey ordered him to change his hair color. (Id. ¶ 28). "The defendants coordinated with Jamie Keating in an unlawful effort to deter the plaintiff from speaking out about their collective unlawful misconduct." (Id. ¶ 30).

Defendant Winterbottom investigated Plaintiff. (Id. ¶ 24). "In abject retaliation for plaintiff complaining to Keating and his superiors as a citizen and not as a police officer on a matter of great public concern the plaintiff was vindictively and selectively prosecuted" by the defendants. (Id. ¶¶ 32 and 33). On December 29, 2009, Winterbottom subjected Plaintiff to a false arrest, charging him "with crimes implying that he took actions to interfere with prevent or otherwise hinder a prosecution." (Id. ¶ 33). However, "[a]t no time did plaintiff threaten to arrest [Jaime] Keating." (Id. ¶ 34). To the contrary, "it was the defendants Corssan, Fraley, Miller and others who told Keating that Barry Tangert had suggested to them they might consider arresting him." (Id. ¶ 35).

Plaintiff went to the defendant M.L. Henry, at the time the state troopers' equal-employment-opportunity officer. (Id. ¶ 37). Henry told plaintiff that he had suffered no sex discrimination by being forced to change the color of his hair, "pointing out that a number of female members were permitted to change the color of their hair with impunity." (Id. ¶ 38).*fn1 "Henry told plaintiff he had no rights because he was a white male and as such was not in a protected class." (Id. ΒΆ 39). "Henry didn't advise the plaintiff as was Henry's duty that he could and should go to the PHRC/EEOC [the Pennsylvania Human Relations Commission and the Equal Employment Opportunity Commission] to review his situation instead telling him to pursue a grievance he had filed because it was his only ...

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