United States District Court, M.D. Pennsylvania
BARRY R. TANGERT, JR., Plaintiff
MARK CROSSAN, et al. Defendants
WILLIAM W. CALDWELL, District Judge.
Plaintiff, Barry R. Tangert, Jr., a former Pennsylvania State Trooper, filed this action asserting two civil-rights claims. The defendants are Jaime Keating, the first assistant district attorney for Cumberland County, Pennsylvania, and seven members of the Pennsylvania State Police (PSP): Mark Crossan, Scott Miller, William Fraley, Gilbert Morrissey, M.L. Henry, Nick Chimienti, and Kathy Jo Winterbottom, "the Commonwealth Defendants."
The first claim is against all the defendants, alleging that they harassed Plaintiff in violation of his First Amendment rights for speaking to Keating and to certain of the PSP defendants about Keating's supposed improper prosecution of two innocent persons. The second claim is against Winterbottom alone for false arrest when she initiated a criminal prosecution against Plaintiff. In that case, she charged him with an attempt to hinder Keating's prosecution of the two individuals by way of his conversations with Keating and the PSP personnel. This prosecution is also alleged to be part of the harassing conduct in the first claim.
We are considering two motions for summary judgment under Fed.R.Civ.P. 56, one filed by Keating and the other by the Commonwealth Defendants.
II. Standard of Review
Under Fed.R.Civ.P. 56, summary judgment should be granted "if the movant shows 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). In pertinent part, parties moving for, or opposing, summary judgment must support their position by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers, or other materials." Fed.R.Civ.P. 56(c)(1)(A). "An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed.R.Civ.P. 56(c)(4). In deciding a motion for summary judgment, "[t]he court need consider only the cited materials, but it may consider other materials in the record." Fed.R.Civ.P. 56(c)(3). "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.'" Meditz v. City of Newark, 658 F.3d 364, 369 (3d Cir. 2011)(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986)).
With this standard in mind, we present the following background, sufficient for resolution of the summary-judgment motions. For the most part, we rely on the Commonwealth Defendants' statement of material facts (DSMF) and Plaintiff's counter-statement (CSMF), including admissions in the CSMF. We will sometimes borrow the parties' language without attribution.
On October 5, 1992, plaintiff Tangert enlisted with the Pennsylvania State Police (PSP). (Doc. 46, DSMF ¶ 1, and CSMF ¶). "During the final six years of his employment, Tangert was Procurement and Supply Officer at Troop H. Prior to that, he was a patrol trooper." ( Id. ¶ 5, and CSMF ¶ 5).
At some point before August 2008, Tangert had been involved in a sexual relationship with a woman named Traci Georgiadis. Ms. Georgiadis' husband was named John. ( Id. ¶ 9, and CSMF ¶ 9). In 2007, Traci Georgiadis and Plaintiff reconnected, but only socially. (Doc. 47-7, ECF p. 3, Tangert IAD interview). She told Tangert that she and her husband were being prosecuted in Cumberland County, Pennsylvania, for involuntary deviate sexual intercourse with a person less than sixteen years old. (DSMF ¶ 10, and CSMF ¶ 10). She gave him the details, and he looked at the case file. (Doc. 47-7, ECF p. 4). "Based on his experience and training as a PSP Trooper, he perceived there were problems with the investigation, including documentation of the victim's interview." (Doc. 46, DSMF ¶ and CSMF ¶ 15). Tangert "felt like [he] needed to look into things and that maybe [he] could present them to [his] superiors[.]" (Doc. 47-7, ECF pp. 3-4).
On August 4, 2008, Tangert contacted Keating by phone to request a meeting to discuss the Georgiadis criminal case. During this phone call, Tangert identified himself as a PSP Trooper, ( Id., ECF pp. 7-8), but said he was not acting in an official capacity. ( Id. ECF p. 7). Tangert made the call from his PSP office over his lunch break and used his own cell phone. ( Id., ECF p. 8). Tangert identified himself as a PSP Trooper partially to give himself more credibility. ( Id., ECF p. 27). He also did so as a courtesy. ( Id., ECF p. 7).
"Tangert believed that if the Georgiadis criminal investigation had been improperly conducted, PSP had an obligation to look into it[.]'" ( Id., ECF pp. 24-26). As a Trooper, Tangert had taken "an oath to uphold the laws of the Commonwealth" and he believed "it was his duty to talk to ADA Keating." (Doc. 46, DSMF ¶ 18 and CSMF ¶ 18; Doc. 47-4, ECF p. 26, Tangert Dep.).
On August 5, 2008, Tangert met with Keating at Keating's office. Upon arrival, Tangert identified himself as a PSP Trooper. (Doc. 46, DSMF ¶ 19 and CSMF ¶ 19). He told Keating he was bending PSP rules by talking to him and that he could get in trouble. (Doc. 47-8, ECF p. 6, Tangert trial testimony; Doc. 47-7, ECF p. 15). He also acknowledged that it was out of the norm. (Doc. 47-7, ECF p. 20). Tangert provided Keating with a typewritten document outlining the deficiencies Tangert saw in the Georgiadis criminal investigation based on Tangert's review of the case file. (Doc. 46, DSMF ¶ 22 and CSMF ¶ 22; Doc. 39-2, ECF p. 15). He sarcastically joked ...