McLee v. Brown, Civil Action No. 18-1630

DAYLAN MCLEE, Plaintiff, v. DALE BROWN, JAMES PIERCE, ADAM SIKORSKI and KIP YAROSH, Defendants.

Civil Action No. 18-1630

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

February 19, 2021

Judge Conti

REPORT AND RECOMMENDATION

I. Recommendation

It is respectfully recommended that the motion for summary judgment filed by Plaintiff (ECF No. 40) be denied. It is further recommended that Defendants' motion for summary judgment (ECF No. 43) be denied.

II. Report

Plaintiff Daylan McLee ("McLee"), who brought this action pursuant to 42 U.S.C. § 1983, alleges that he was subjected to malicious prosecution in violation of his federal civil rights under the Fourth Amendment. Named as Defendants are Dale Brown ("Brown"), then a sergeant with the Pennsylvania State Police ("PSP") and three PSP officers, Trooper Adam Sikorski ("Sikorski"), Trooper James Pierce ("Pierce") and Corporal Kip Yarosh ("Yarosh"). McLee's claim arises out of an incident that occurred after midnight on March 20, 2016 at the American Legion in Dunbar Township, Fayette County, Pennsylvania (the "American Legion").

Currently pending before the Court are the parties' cross-motions for summary judgment. For the reasons that follow, both motions should be denied.

A. Relevant Procedural History

McLee commenced this action on December 6, 2018. Federal question jurisdiction is premised upon the § 1983 claim of malicious prosecution in violation of the Fourth Amendment, 28 U.S.C. § 1331.

Following the close of discovery, the parties filed cross-motions for summary judgment (ECF Nos. 40, 43), which have been fully briefed (ECF Nos. 41, 44, 65, 68, 80, 81).

B. Factual Background

1. The Incident at the American Legion

At around 2:00 a.m. on March 20, 2016, Nathaniel Turner ("Turner") drove McLee and Vachone Epps ("Epps") to the American Legion. (Plaintiff's Concise Statement of Undisputed Material Facts ("PCSMF") ¶ 1.)¹ Shortly after they arrived, a fight broke out between several individuals inside the American Legion, but McLee, Turner, and Epps were not involved. Sikorski and his partner, Trooper Charles Smolleck ("Smolleck"), were on patrol duty at the time and were dispatched to the American Legion in response to allegations that a large fight was taking place. (Id. ¶¶ 2-4; Defendants' Concise Statement of Material Facts ("DCSMF") ¶¶ 26, 38-39.²)

Shortly thereafter, while McLee was in the American Legion's parking lot, he saw a male patron, known to him only as "O'Shea" [his full name is O'Shea Thomas]. Thomas appeared visibly angry and was armed with a firearm. McLee approached Thomas and spoke with him, eventually convincing him to hand over the gun. (DCSMF ¶¶ 28-31.)

According to McLee, after he took the firearm from Thomas, he immediately discarded it after taking only "four or five steps," at which point he "flicked it down" onto the ground. Plaintiff's Counterstatement to Defendants' Concise Statement of Material Facts ("PCDCSMF")¶ 32.)³ He "heard it hit the ground" and it wound up either partially or fully underneath a car in the parking lot. (McLee Dep. 63-64.)⁴ See DCSMF ¶¶ 34-35.⁵

Troopers Sikorski and Smolleck were the first officers to arrive at the American Legion moments later. Sikorski exited from the passenger side of their vehicle and had a brief discussion with an individual "to ascertain whether anybody has been hurt in there, is there any weapons or anything like that." (DCSMF ¶¶ 40-43.) At that point, an individual later identified as Dustyn Grogan ("Grogan") fired a single shot from a handgun into the air. This caused all of the patrons of the American Legion to flee the area, including McLee. Smolleck, who saw Grogan fire the gunshot, responded by running directly towards him, while Sikorski took cover beside a nearby vehicle. (PCSMF ¶¶ 5-7; DCSMF ¶¶ 37, 44-45.) When Grogan ran into the building, Smolleck pursued him and was able to apprehend him without incident. (DCSMF ¶¶ 46, 49.)

According to Sikorski, as he took cover, he saw McLee standing in the middle of the parking lot in a "triangle isosceles" shooting position, pointing a large, black handgun directly at him. Sikorski screamed "drop the gun" but McLee did not comply. McLee began to flee toward the back of the parking lot, causing Sikorski to give chase. As he ran, McLee had both hands on the weapon. McLee stopped in the back of the parking lot and did not comply with Sikorski's commands to drop the weapon. Sikorski discharged his service weapon twice at McLee because McLee turned and continued to flee. Both rounds missed McLee and struck the front doorway ofa nearby residential home. McLee then entered Turner's vehicle with the handgun⁶ and left the area of American Legion. McLee pointed the handgun at him only one time—from the middle of the parking lot—and never raised the weapon to him in the back of the parking lot before Sikorski opened fire. (PCSMF ¶¶ 8-15; DCSMF ¶¶ 54-55.)

Sikorski noted the license plate number of the car, which he radioed in. (DCSMF ¶ 56.) Turner's vehicle was ultimately pulled over by police officers from the Uniontown City Police Department, who detained Turner, Epps, and McLee without incident, and transported them to the PSP barracks in Uniontown for questioning. (PCSMF ¶ 16; DCSMF ¶¶ 69-71.)⁷

According to Sikorski, after calling in the license plate number, he spoke with Smolleck inside the American Legion. Smolleck states that Sikorski told him "There was a guy that pointed a gun at me. I fired at him. He threw the gun in a ditch and got into a car and drove away." (DCSMF ¶¶ 57, 60-61.) McLee asserts that this statement is inconsistent with multiple other statements including Sikorski's March 29, 2016 statement to Brown; Smolleck's April 11, 2016 interview with Brown; and the transcription of Brown and Sikorski's November 18, 2016 viewing of the video. None of these contain a reference to McLee throwing a gun into a ditch. McLee also notes that as the record reflects, no one made any effort to secure a gun at that location. (PCDCSMF ¶ 61.)

The record includes other inconsistencies in Sikorski's statements about these events. At his deposition, Sikorski testified that just prior to entering Turner's vehicle, McLee (without turning around) made a gesture and said "I don't have the gun," which led Sikorski to concludethat "it had to be in that grass right where he got in the vehicle." He also testified that he told his supervisor that the gun is "likely over there in the grass." (DCSMF ¶¶ 56, 76.) According to McLee, this testimony contradicts Sikorski's sworn testimony at the subsequent preliminary hearing and the criminal trial that Defendant Pierce (who spoke to Sikorski at the scene) had no recollection of Sikorski telling him where the gun had been discarded and Pierce would have immediately secured the weapon if Sikorski had told him about it. Further the gun that was later attributed to McLee was not located until 8:55 a.m. (PCDCSMF ¶ 56; Plaintiff's Supplemental Counterstatement to Defendants' Concise Statement of Material Facts ("PSCDCSMF") ¶ 56.⁸)

As will be discussed later in more detail, McLee also contends that the video evidence in this case does not support Sikorski's version of the events; rather, it shows that by the time Sikorski and Smolleck arrived at the American Legion, McLee did not have a weapon and that he never pointed a weapon at Sikorski. He further contends that, upon being shown the video evidence during discovery in this case, Brown, Pierce and Yarosh all agreed that it does not corroborate Sikorski's narrative that McLee pointed a gun at him. (PCSMF ¶¶ 20-22, 31-33, 55-59, 63, 74-76.)

Because the incident at the American Legion included an officer-involved shooting, Sikorski was required to provide an oral "public safety statement" immediately following the shooting. According to Brown, a public safety statement "molds the investigation." Sikorski states that a public safety statement is intended to "assure everybody that there's no longer a threat to the community and maybe just enough to put in a probable cause affidavit to arrest somebody." (PCSMF ¶¶ 46-48; DCSMF ¶ 65.) Sikorski supplied his public safety statement to Corporal Alan Stasko. (DCSMF ¶ 64.)

Sikorski's public safety statement included the following facts: 1) McLee was in the middle of the parking lot pointing a large handgun at him; 2) Sikorski pursued McLee because of that and ended up in the back of the parking lot; 3) when he arrived at the back of the parking lot, he saw McLee with a gun in his left hand at his side standing next to somebody; 4) he told McLee in the back of the parking lot to drop the gun from his left hand, at which point McLee turned and fled; and 5) McLee only pointed a handgun at him one time. (PCSMF ¶ 49.)

The protocol in an officer-involved shooting is to remove an officer from the scene as soon as possible and restrict the officer from providing another statement for seventy-two hours after the incident. (DCSMF ¶¶ 66-67.) Defendants assert that the protocol was followed in this case, although they admit that Sikorski also spoke with Pierce at the scene. (DCSMF ¶ 68.) Again referencing the video, McLee contends that Sikorski did not leave the area for some time. An Incident Report records him as still being on the scene at 4:30 a.m. He may even have remained on site as late as 8:50 a.m. and spoken with Trooper Thomas Broadwater (who did not arrive at the American Legion until that time) in connection with Broadwater obtaining a search warrant. (PCDCSMF ¶¶ 66-67; PSCDCSMF ¶ 66 & n.3.)

2. The First McLee Interview and Recovery of a Firearm

McLee, Epps, and Turner were interviewed at the Uniontown Station by Pierce and Yarosh.⁹ The interviews were conducted in an interrogation room that was equipped with audio and video recording capabilities. (DCSMF ¶¶ 72-73.) Pierce and Yarosh were assigned this duty by Brown, the lead investigator in the case. (PCSMF ¶ 37.)

Defendants state that McLee initially gave a...