Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Noonan v. Kane

United States District Court, E.D. Pennsylvania

March 29, 2018



          Bartle, J.

         Plaintiffs Frank Noonan, Randy Feathers, Richard A. Sheetz, Jr., E. Marc Costanzo, and Frank Fina have filed this action under 42 U.S.C. § 1983 against Kathleen Kane, the former Pennsylvania Attorney General, and against Michael Miletto, an investigator in the Office of the Attorney General (“OAG”). The gravamen of the five counts against Kane is that she retaliated against the plaintiffs for engaging in speech protected by the First Amendment as incorporated in the Fourteenth Amendment. Fina and Costanzo also plead in a separate count that Kane and Miletto conspired to retaliate against them for protected speech.[1]

         This court dismissed the § 1983 claims for failure to state a claim upon which relief can be granted. It did not reach defendants' argument that they are entitled to qualified immunity. Our Court of Appeals reversed and remanded. Noonan v. Kane, 698 F. App'x 49 (3d Cir. 2017). In its non-precedential opinion, it held that plaintiffs “have alleged a colorable claim of retaliation in violation of their First Amendment rights.” Id. at 54. In doing so, it referred to three different threats made by Kane, her subordinates, and/or Miletto. The Court of Appeals noted that on remand it was for the district court to consider the issue of qualified immunity in the first instance.

         Significantly, the Court of Appeals stated that it was not clear whether certain plaintiffs were employees of the OAG under defendant Kane at the time of the events alleged in the First Amended Complaint. The Court directed, “This is fact-finding that the District Court should make in the first instance.” Id. at 55 n. 3. On remand, this court held a phone conference with counsel who all agreed that there is no dispute as to the employment status of plaintiffs at the times relevant here. The parties thereafter filed stipulations as to these facts, and the court has incorporated these facts into this memorandum.

         We now must decide whether the defendants are shielded from liability on each of plaintiffs' claims based on the bar of qualified immunity. In doing so, we now have relevant information about the employment status of the plaintiffs which was not previously in the possession of the Court of Appeals or this court.


         For purposes of deciding the issue of qualified immunity on a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court must accept as true all factual allegations in the complaint and draw all inferences in the light most favorable to the plaintiff. Mammaro v. N.J. Div. of Child Prot. and Permanency, 814 F.3d 164, 166 (3d Cir. 2016). We must then determine whether the pleading at issue “contain[s] sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Under this standard, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. In making our determination, we may also consider matters of public record as well as any “undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on that document.” Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).


         The conduct of defendants Kane and Miletto that is the subject of the First Amended Complaint took place between February 2012, when Kane announced her candidacy for Attorney General of Pennsylvania, and approximately November 2014.[2] Kane was elected Attorney General in November 2012 for a four year term and took office on January 15, 2013. We take judicial notice that she resigned on August 17, 2016.

         Plaintiff Noonan served as the Commissioner of the Pennsylvania State Police from January 18, 2011 to January 18, 2015. He was appointed to that position by the Governor and confirmed by the State Senate. 71 Pa. Const. Stat. §§ 61, 67.1, 251. In that role, he served as a member of the Governor's cabinet. 71 Pa. Const. Stat. § 784.7. Noonan was not employed by or under the authority or control of the Attorney General, who is independently elected. Pa Const. art. IV § 4.1; 71 Pa. Const. Stat. § 732-201.

         Feathers served as the Regional Director of the Bureau of Narcotics Investigation and Drug Control of the OAG from January 25, 1988 to October 12, 2012. From August 17, 1987 to January 4, 2013, Sheetz served as the Executive Deputy Attorney General of the Criminal Law Division of the OAG. Costanzo was a Deputy Attorney General of the OAG from August 1993 to January 4, 2013. Fina was employed by the OAG from March 18, 2002 to January 18, 2013, ultimately reaching the position of Chief Deputy Attorney General. While Feathers, Sheetz, and Costanzo had all been employed by and had served under prior Attorney Generals, they all had left the OAG before Kane was sworn in. Fina had likewise served under prior Attorney Generals and had resigned from his latest post three days after Kane took office.

         Plaintiffs' averments stem from a series of acrimonious encounters they had with Kane. The first began while Kane was on the campaign trail in 2012. At that time, she criticized the OAG's handling of the investigation into allegations that former Penn State football coach Jerry Sandusky had been sexually abusing young boys for a period of years dating back to 1994.[3] Kane promised to initiate her own inquiry into the investigation once she took office. Fina and Costanzo, who were involved in the original investigation, openly criticized Kane's statements and campaign tactics.

         The conflict continued after Kane became Attorney General in January 2013 and initiated her own inquiry into the Sandusky matter. Her inquiry was completed by May 2014 and a report on the original Sandusky investigation was prepared by an OAG attorney, Geoffrey Moulton, Jr. After reviewing the report, Fina, Sheetz, Feathers, and Noonan, none of whom was then employed in the OAG, slammed the inquiry as “ill-advised” and announced that it had been “born of political opportunism and posturing.” They viewed the Moulton report as an “exercise in second guessing” undertaken to “sift for criticism.” They described Kane's claims that gave rise to the report as “ill-informed and unfounded.” Plaintiffs' responses, by court order, were incorporated into the final version of the Moulton report, which was made public on June 23, 2014, well over a year after Kane became Attorney General. That same day during a press conference, Kane accused Noonan, Fina, Sheetz, and Feathers of delaying the original investigation. According to Kane, the delay allowed Sandusky to molest two additional victims. Plaintiffs condemned this statement as false, and Kane later acknowledged its falsity. Fina, Feathers, and Noonan fired back at a press conference by criticizing Kane and denouncing her statements as untruthful.

         Meanwhile, Kane was overseeing another OAG investigation in which Fina and Costanzo had been involved, and again further strife erupted between plaintiffs and Kane. This investigation concerned certain members of the Pennsylvania General Assembly from Philadelphia who were suspected of taking bribes. Confidential informant Tyron Ali had agreed to assist the OAG investigation in exchange for the OAG dropping criminal charges against him. After Kane became Attorney General, Fina discovered that Kane had a conflict of interest in the investigation. Fina asserted that Kane had a professional relationship with at least two individuals who Ali had identified in connection with his work in the bribery investigation. One of these individual was Joshua Morrow. Through Morrow, Ali had made contributions in cash and by check in the names of straw donors to a political candidate. After Ali was arrested, Morrow returned the checks to Ali. Morrow later became a paid employee of Kane's campaign staff and also made contributions to her campaign.

         Fina brought this conflict of interest to Kane's attention, but she ignored it. Instead, she declined to continue the bribery investigation against the legislators and initially refused to drop the charges against Ali. Fina thereafter brought the conflict of interest to the attention of the judge supervising the grand jury related to the investigation.

         In March 2014 Kane began publicly criticizing the bribery investigation and insinuated that the investigation was racially motivated. She stated that she had information that the bribery investigation targeted members of the legislative Black Caucus. Fina alleges that Kane's comments were intended to damage his reputation and cast him as racist. He made public statements refuting Kane's allegations.[4]

         Further jousting occurred between Kane and Fina and Costanzo at some point after Kane took office over a 2009 OAG investigation concerning J. Whyatt Mondesire, the former head of the Philadelphia chapter of the NAACP. That investigation, in which Fina and Costanzo had been involved, had stalled due to the unavailability of witness testimony. Kane, through an associate, gave confidential grand jury material to a reporter for the Philadelphia Daily News, who wrote an article suggesting that Fina and Costanzo had improperly terminated the investigation. This article, written at Kane's direction, was published in June 2014. Further, Kane and Miletto conspired to retaliate against Fina and Costanzo when Kane had Miletto fabricate a story that Miletto had uncovered evidence of Fina and Costanzo's wrongdoing in the Mondesire investigation. According to the story, Fina and Costanzo removed Miletto from the investigation after they discovered that Miletto knew of their obstruction.

         In 2014, Fina and Costanzo alerted the supervising judge of the Mondesire grand jury to the leak of confidential grand jury information. On the day in August 2014 when Fina and Costanzo were scheduled to testify before the grand jury on this issue, they were met in an elevator by Miletto and others who threatened them with physical harm. The supervising judge thereafter entered a protective order to prevent future intimidation.

         Meanwhile, sometime after Kane took office but prior to May 2014, Kane was alerted to emails containing pornographic images sent among OAG officials and others outside of the OAG using OAG email accounts in connection with the original Sandusky investigation.[5] Plaintiffs were among the individuals in the email chains. There were two encounters between Kane's subordinates and Fina's colleagues in which Kane's subordinates threatened plaintiffs for Fina's criticism and actions relating to Kane's leak of Mondesire grand jury material. In the first encounter in the summer of 2014, one of Kane's subordinates, David Tyler, the Chief Operating Officer of the OAG, threatened that “a lot of those people [former OAG staff] are going to be hurt if ‘Fina does not back off.'” In the second encounter in August of 2014, James Barker, the Chief Deputy Attorney General for Appeals and Legal Services of the OAG, relayed that “if Fina did not stop criticizing Kane, Kane would release the private emails of the former OAG staff.” As the Court of Appeals has interpreted the First Amended Complaint, the subordinates made these statements at Kane's direction.

         Kane was advised that she could not lawfully release the emails in a selective manner and that the emails were not subject to public release under Pennsylvania law.[6] Nonetheless, she released a portion of the emails of Fina, Costanzo, Feathers, Sheetz, and Noonan in September 2014. Kane did so in a selective way in order to portray plaintiffs in a false light and depict them as participants in the possession and distribution of child pornography. In November 2014 during a nationally-broadcasted interview following the release, Kane insinuated that Fina, Feathers, Sheetz, and Noonan were involved in possessing and distributing child pornography using their government work computers.

         The First Amended Complaint details six counts asserting violations under § 1983: (1) in Count One Fina alleges that Kane retaliated against him by publicly declaring that the Ali bribery investigation, that is the investigation of the Philadelphia legislators, was racially motivated in order to cast Fina as racist; (2) in Count Two Fina and Costanzo assert that Kane retaliated against them by releasing confidential grand jury material from the Mondesire investigation and by having her subordinates threaten to harm them by releasing their emails containing pornographic images if Fina did not stop criticizing Kane; (3) Fina and Costanzo allege in Count Three that Kane and Miletto conspired to retaliate against them by fabricating a story relayed to a reporter suggesting that Fina and Costanzo had improperly stalled the Mondesire grand jury investigation, had improperly removed Miletto from the investigation, and had Miletto threaten Fina and Costanzo physically in order to prevent them from testifying in a grand jury regarding the leak of Mondesire grand jury material; (4) Fina, Sheetz, Feathers, and Noonan aver in Count Four that Kane retaliated against them by publicly criticizing their conduct in the Jerry Sandusky investigation; (5) in Count Five, Fina, Sheetz, Feathers, and Noonan aver that Kane retaliated against them by publicly suggesting that plaintiffs distributed through emails child pornography; and (6) in Count Six all five plaintiffs contend that Kane retaliated against them by directing her subordinates to threaten to harm them if Fina did not stop criticizing her and by casting them in a false light through selectively releasing their emails.

         Our Court of Appeals, as noted above, pointed to three specific instances described in the First Amended Complaint in which plaintiffs alleged that Kane, Miletto, or subordinates at their direction threatened them. Reading the First Amended Complaint broadly, two of those threats are relevant to Counts Two, Three, and Six since the threats related to both the Mondesire grand jury leak and the release of the emails containing pornographic images. The Chief Operating Officer of the OAG first threatened in the summer of 2014 that “a lot of those people [former OAG staff] are going to be hurt if ‘Fina does not back off'” with respect to Fina's comments regarding the Mondesire grand jury leak. The Chief Deputy Attorney General for Appeals and Legal Services of the OAG, in August of 2014 also threatened that “if Fina did not stop criticizing Kane, Kane would release the private emails of the former OAG staff.” The final threat relates to Counts Two and Three brought by Fina and Costanzo against Kane and Miletto and involves the Mondesire grand jury leak. In this threat, Miletto physically threatened and intimidated Fina and Costanzo in August 2014 in the elevator when they were going to testify before the grand jury concerning the leak.

         Our Court of Appeals observed in connection with the threats: “[w]hether that retaliation would deter a person of ordinary firmness from exercising [their First Amendment rights] is a question to be decided by the factfinder and ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.