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Carusone v. Kane

United States District Court, M.D. Pennsylvania

November 9, 2017




         In this action pursuant to 42 U.S.C. § 1983, Plaintiff brings equal protection and procedural due process claims against Defendants arising out of former Pennsylvania Attorney General Kathleen Kane's release of damning emails found in Plaintiff's email account. Presently before the court are Defendants' motions to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, Defendants' motion will be granted in part and denied in part.

         I. Background

         A. Facts[1]

         Plaintiff Christopher Carusone (“Plaintiff”) is a former employee of the Pennsylvania Office of the Attorney General (“OAG”). Plaintiff worked at the OAG from 2004 to 2011, moving up from Deputy Attorney General to Senior Deputy Attorney General and then to Chief Deputy Attorney General. (Doc. 17, ¶ 4.) Defendant Kathleen Kane (“Kane”) was elected Attorney General of Pennsylvania on November 6, 2012 and was sworn into office on January 15, 2013. (Id. at ¶ 14.) As part of her campaign for the Attorney General position, Kane had promised to investigate the OAG's investigation, under then-Chief Deputy Attorney General Frank Fina, into the prosecution of Jerry Sandusky, to determine if there had been any improper delay. (Id. at ¶¶ 12-13.) In February 2013, Kane appointed H. Geoff Moulton (“Moulton”) as Special Deputy Attorney General to lead the inquiry into the Sandusky investigation. (Id. at ¶ 15.) During his investigation, Moulton discovered the existence of a large number of “inappropriate emails” that had been generated during the period of time covered by the Sandusky investigation and subsequently deleted from OAG servers. (Id. at ¶ 16.) The emails allegedly contained “obscene material, nudity, or offensive materials, such as racism or sexism, ” and were discovered in the email accounts of hundreds of current and former OAG employees, including Plaintiff, as well as individuals employed outside of the OAG in both the private and public sectors. (Id. at ¶ 16-17.)

         On March 16, 2014, the Philadelphia Inquirer published an article entitled “Kane shuts down sting that snared Philadelphia officials” which reported that Kane, upon becoming Attorney General, shut down an OAG undercover sting operation spanning the previous three-year period that had captured democratic public officials in Philadelphia, including four members of the State House delegation, on audio tape accepting cash. (Id. at ¶ 20.) According to the amended complaint, this article enraged Kane, who blamed Fina as the leak for the story. (Id. at ¶ 21.) In an email to her media strategist J.J. Balabon the same day the article was published, Kane wrote “[t]his is war, ” allegedly targeting Fina and those closely associated with him. (Id. at ¶¶ 21-22.) As a means of carrying out this “war, ” and in retaliation against Fina for his perceived leak to the Inquirer, Kane leaked Grand Jury information about a prior investigation into J. Wyatt Mondesire, the former head of the Philadelphia NAACP, lead by Fina and former Senior Deputy Attorney General E. Marc Costanzo (“Costanzo”), that was closed without the filing of criminal charges. (Id. at ¶ 25.)

         Kane's retaliatory motive was evident in a series of text messages between Kane and political consultant Joshua Morrow (“Morrow”) in which Kane stated that revenge was “[b]est served cold, ” and Morrow responded that it was “[t]ime for Frank [Fina] to feel the heat.” (Id. at ¶ 27.) In addition to the text messages, the F.B.I. intercepted a phone conversation in which Morrow stated that Kane had become “unhinged” and was attempting to “throw everything on the wall and see what sticks.” (Id. at ¶ 26.)

         On May 8, 2014, Fina and Costanzo wrote to the Honorable William Carpenter, Supervising Judge, Thirty-Fifth Statewide Investigating Grand Jury, to notify him that they had been contacted by a reporter from the Philadelphia Daily News who was in possession of confidential Grand Jury information regarding the Mondesire investigation, and Judge Carpenter appointed Special Prosecutor Thomas Carluccio to investigate the leak. (Id. at ¶ 28.) On June 6, 2014, the Philadelphia Daily News published an article about the OAG's prior investigation into Mondesire that contained confidential investigative and Grand Jury information and was critical of Fina's decision not to prosecute Mondesire. (Id. at ¶ 29.)

         Throughout the spring and summer of 2014, in furtherance of her retaliation against Fina, Kane notified various news reporters that she had discovered inappropriate emails on OAG servers and suggested that the reporters submit requests under the Right-To-Know Law for emails of Fina and Costanzo, as well as eight former OAG employees known to be friends with Fina, including Plaintiff. (Id. at ¶ 30.) Kane enlisted the help of Defendant Renee Martin (“Martin”), former Communications Director for the OAG, as well as others, to plant these Right-To-Know requests with reporters. (Id. at ¶¶ 6, 30.)

         As the Special Prosecutor's investigation into Kane and her inner circle intensified, then-OAG Chief Operating Officer David Tyler (“Tyler”) told both Plaintiff and another perceived friend of Fina, Glenn Parno (“Parno”), that Kane was going to release the inappropriate emails to the press if Fina did not “back off.” (Id. at ¶¶ 32-33.) In August 2014, Chief Deputy Attorney General James Barker told Parno that, despite his advice to the contrary, Kane was going to release the inappropriate emails due to her ongoing feud with Fina. (Id. at ¶ 35.)

         On September 11, 2014, Kane was served with a subpoena to testify before the Thirty-Fifth Statewide Investigating Grand Jury. (Id. at ¶ 36.) In response, on September 25, 2014, Kane directed Martin, along with former OAG Special Agents Defendants David Peifer (“Peifer”), William Nemetz (“Nemetz”), and Braden Cook (“Cook”) (collectively, with Kane and Martin, “Defendants”), to summon the media to the OAG's office in Harrisburg in order to reveal inappropriate images attached to emails that had been recovered from OAG servers during the Sandusky investigation. (Id. at ¶ 37.) During this reveal, Defendants verbally disclosed the names of only perceived friends of Fina, including Plaintiff, and redacted the emails to conceal the names of all other recipients. (Id.) On October 2, 2014, once again at Kane's direction, Martin released paper volumes of the inappropriate emails, assembled by Martin, Peifer, Cook, and Nemetz, to the media. (Id. at ¶ 39.) These paper volumes contained the names of Fina's friends, including Plaintiff, but redacted the identities of the hundreds of other similarly-situated individuals who had received or sent the same emails. (Id. at ¶¶ 40-41.)

         According to the amended complaint, Kane's retaliatory actions toward Plaintiff were done in order to both circumvent a protective order issued by Supervising Judge Carpenter that prohibited Kane from retaliating directly against Fina, as well as cause Fina's friends to pressure him into shutting down the Special Prosecutor's investigation into Kane. (Id. at ¶ 43.) Kane released Plaintiff's emails to the public not for any legitimate employment reasons, as he was no longer an OAG employee, but, allegedly, in order to undermine Plaintiff's reputation without giving him any prior notice. (Id. at ¶¶ 48, 55-56.) Immediately upon, and as a direct and proximate result of the public releases, Plaintiff was terminated from his position at a private law firm, where he had recently been elected as an equity partner, causing him to suffer loss of income and preventing him from executing an equity partnership contract. (Id. at ¶ 132.)

         On November 13, 2014, in a document entitled Attorney General Kathleen G. Kane's Emergency Application For Extraordinary Relief, Kane stated to the Pennsylvania Supreme Court that the protective order barring her from releasing Fina's emails needed to be lifted because it was preventing her from carrying out her duties as Attorney General, the chief law enforcement officer for the Commonwealth of Pennsylvania, to protect the citizens of the state from criminal activity. (Id. at ¶ 58.) On November 18, 2014, Kane provided a statement to the media that under the Right-To-Know Law, the pubic had the right to be informed about the “clearly pornographic” emails that had been found in the accounts of public officials. (Id. at ¶ 59.) The following day, Kane appeared on television on CNN and stated that the inappropriate emails were possibly illegal, and that many of them were “hardcore, sometimes graphic, sometimes violent emails that had a string of videos and pictures depicting sometimes children, old women - some of them involved violent sexual acts against women.” (Id. at ¶ 60.) The amended complaint alleges that Kane knew these statements were false at the time and made them nonetheless out of malice and a desire to stigmatize Plaintiff's reputation. (Id.) Kane allegedly attempted to mischaracterize the emails as child pornography, and later in the CNN broadcast, Kane's attorney Lanny Davis stated that the images to which Kane had referred were “borderline” and “very close” to child pornography. (Id. at ¶ 61.)

         The media attention from the CNN broadcast and the resulting local news stories, specifically one that placed Plaintiff's name on the television screen during a story entitled “Pa Attorney General: Porn email had kids, ” allegedly damaged Plaintiff's personal and professional reputation. (Id. at ¶ 62.) The day after the CNN broadcast, on November 20, 2014, Defendant Martin attempted to withdraw the characterization of the emails as containing child pornography by stating, “[w]e are not saying that it reached the level of child pornography . . . [but] I think what she said is accurate. The images are deplorable. And some contained seniors and children.” (Id. at ¶ 63.) Kane allegedly forced Martin to retract her statement the very next day, with Martin stating that she “misspoke” and that “the Attorney General has not made a ...

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