PITTSBURGH – A federal judge has granted partial dismissal in a pair of malicious prosecution suits from two men who were accused of murdering six people and an unborn child in a mass shooting in Wilkinsburg in 2016.
Cheron Shelton first filed suit in the U.S. District Court for the Western District of Pennsylvania on Feb. 11, 2022 versus Allegheny County, its Police Superintendent Coleman McDonough, its Police Homicide Command Officer Scott Scherer, its Police Homicide Dets. Stephen Hitchings, Todd Dolfi, Thomas Foley, Patrick Miller (Deceased), Patrick Kinavey and Pittsburgh Police Det. Andrew Miller.
(Robert Thomas had filed his own suit against the same defendants on Feb. 2, 2022.)
According to county police authorities, Shelton and Thomas used an assault rifle to open fire on guests of a backyard barbeque cookout on March 9, 2016, at a residence on Franklin Avenue in Wilkinsburg.
As a result of the shooting, five people and an unborn child died at the scene, while another man who was paralyzed from his wounds died in 2020.
“Plaintiff was arrested on March 25, 2016 as pretext for the defendants’ efforts to attempt to coerce and manufacture a claim against plaintiff Shelton related to his involvement in the Wilkinsburg Massacre. Despite having no physical evidence, eyewitness testimony, or DNA evidence linking plaintiff to the events of the Wilkinsburg Massacre, plaintiff was incarcerated for over four years, pending investigation and prosecution of the Wilkinsburg Massacre,” the suit said.
After a jury trial with three days of deliberation, Shelton was found not guilty of all the counts against him on Feb. 14, 2020.
Allegheny County Common Pleas Judge Edward J. Borkowski threw out the prosecution against Thomas only hours before opening statements were scheduled to be made, since prosecutors explained they would not call a jailhouse witness against him, and therefore, could not prove his guilt beyond a reasonable doubt.
Meanwhile, Shelton claimed that the defendant officers committed perjury in an attempt to place blame for the crime on him, used false information given by confidential informants of dubious quality and withheld exculpatory evidence which may have aided his case.
“The charges brought against Mr. Shelton were based largely on unsupported and unreliable information provided by jailhouse informants, and information manufactured by confidential informants coerced by law enforcement and the district attorney in exchange for immunity related to other crimes,” the suit said.
While awaiting trial on capital crimes that carried the death penalty, Shelton was incarcerated for four years and allegedly deprived of his constitutional rights.
At the present time, Shelton is serving an eight-year federal prison term for possession of a stolen gun – as Thomas is currently incarcerated at the Allegheny County Jail on domestic violence charges, including unlawful restraint, strangulation and kidnapping.
After an amended complaint was filed removing McDonough and Miller as defendants, the Allegheny County District Attorney’s Office filed a motion to intervene in the case on June 13, 2022 – arguing that the County itself does not have authority or control over policies of the DA’s Office, and that addressing this ambiguity was crucial in future proceedings.
“Pursuant to the Allegheny County Home Rule Charter and the Allegheny County Code of Ordinances, the DA is an Independently Elected Official who retains all responsibilities and authority under the Commonwealth Attorneys Act and the Second Class County Code. Allegheny County has no lawful ability to constrain any of the DA’s law enforcement or policy making authority, and cannot engage in litigation, control litigation or settle litigation involving the DA or the DA’s Office without the DA’s consent and cannot hire, supervise or control any employees of the DA’s Office,” the intervenor motion read, in part.
“It is the position of the DA movants that the amended complaint must either be again amended to address the aforementioned ambiguities, or the DA movants must be permitted to intervene in this matter to protect their interests.”
However, U.S. District Court for the Western District of Pennsylvania Judge Cathy Bissoon denied the intervenor motion through an order issued on June 14, 2022 and temporarily paused both cases – they were then reopened on Aug. 30, 2022.
UPDATE
In a May 19 memorandum opinion, Bissoon partially granted a prior motion for dismissal, which had challenged a number of the plaintiffs’ claims on sufficiency grounds.
“Defendants first challenge plaintiffs’ conspiracy allegations under Section 1983. Plaintiffs’ allegations, taken as a whole, are sufficient to sustain a claim of conspiracy. The pleadings contain sufficient, plausible allegations to support the existence of agreement and concerted action. Although defendants argue that the allegations are deficient, the Court sees little benefit to dismissing the claims (subject, of course, to the opportunity for curative amendment) and demanding plaintiffs to put a finer point on things. Plaintiffs, generally, have alleged sufficient, plausible facts in support of their conspiracy claims, and the motions to dismiss will be denied in this respect,” Bissoon stated.
“Defense counsel next challenge the level of personal involvement alleged on behalf of certain individual defendants. Although the precise contours of personal involvement in the two cases slightly differ, the Court’s conclusions dovetail. Plaintiffs have made sufficient allegations of personal involvement as relates to detectives Stephen Hitchings and James Grill Sr. Defense counsel’s characterizations of these detectives’ involvement are self-serving, and improperly construe inferences in their own favor. Plaintiffs have alleged sufficient personal involvement regarding defendants Hitchings and Grill, and defendants’ motions are denied to this extent.”
However, Bissoon did point out that defendants Foley and Kinavey would be dismissed from the case, since they were only alleged to have been “involved” in the investigation, with no further specifics – but the plaintiffs will be permitted to cure that deficiency by amendment.
“Next are the allegations of supervisory liability against defendant Scott Scherer. The pleadings premise his liability solely on the basis of him acting as ‘commander,’ and no allegations of personal involvement are made. As defense counsel correctly observe, liability cannot be predicated solely on the operation of respondeat superior, and plaintiffs must allege personal involvement, by way of personal direction or actual knowledge and acquiescence. Plaintiffs’ allegations fail these standards, and the motions to dismiss are granted regarding Scott Scherer (without prejudice to attempted curative amendments),” Bissoon said.
“Defendants also challenge plaintiffs’ allegations of Monell liability. The Court agrees that the allegations are deficient. Plaintiffs do not attempt to identify prior, similar incidents revealing a pattern of constitutional violations. Instead, they appear to rely on the ‘single incident’ theory, i.e., their own treatment. While such a theory is tenable in some circumstances it is not here. Plaintiffs have failed to claim that their alleged mistreatment ‘was caused by an existing, unconstitutional [government] policy, which policy can be attributed to a…policymaker.’ Nor are their allegations of a type where there is an obvious ‘likelihood that the situation will recur,’ resulting in ‘predictability that an officer lacking specific tools to handle [the] situation will violate citizens’ rights.’ In sum, plaintiffs have failed to assert viable Monell claims, and there is no reason to believe that the deficiency may be cured by amendment.”
Bissoon also retained the counts of malicious prosecution and/or abuse of process under state law against defendant Dolfi, since the Political Subdivision Tort Claims Act “does not shield individuals accused of acting with actual malice or engaging in willful misconduct.”
“Consistent with the foregoing, defendants’ motions to dismiss are granted in part and denied in part, as described above. Should plaintiffs wish to attempt curative amendments, limited to the ones contemplated herein, their deadline for doing so is June 2, 2023. Should plaintiffs amend, they must make last, best efforts to state viable claims, because further opportunity for amendment will not be afforded,” Bissoon concluded.
“If plaintiffs elect not to amend, they may file notices on the dockets, so indicating, to avoid additional delay. Defendants’ deadline to answer (or otherwise respond, if the pleadings are amended) is 14 days after the filing of the third amended complaints, or plaintiffs’ notices, whichever are sooner/applicable.”
For counts of malicious prosecution, due process violations, civil rights conspiracy, failure to intervene, supervisor liability and state law claims of malicious prosecution and abuse of process, the plaintiff is seeking compensatory damages and punitive damages in amounts to be determined at trial, a trial by jury, pre-judgment and post-judgment interest and recovery of plaintiff’s costs including reasonable attorney’s fees and any and all other relief for which the plaintiff may be entitled.
The plaintiff is represented by Max Petrunya of Max Petrunya, P.C. and Paul R. Jubas of Paul Jubas Law, both in Pittsburgh.
The defendants are represented by Dennis R. Biondo Jr. and Shelley K. Rohrer of the Allegheny County Law Department, also in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:22-cv-00266
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com