United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS June 3, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-10843
Summary Calendar
BERNARDO LOPEZ-RODRIGUEZ; MARIA MAGDELANA RODRIGUEZ;
SUSIE RESENDEZ, Individually, as representative of
the estate of David Rodriguez, Sr., and as next friend of
David Rodriguez, Jr., and Don Leon Rodriguez, minor children,
Plaintiffs - Appellants,
versus
CITY OF LEVELLAND, TEXAS; ET AL.,
Defendants,
CITY OF LEVELLAND, TEXAS; TED HOLDER, Levelland Chief of
Police, Individually and In His Official Capacity; RICK
WOOTEN, Individually and In His Official Capacity; FRED
GONZALES, Individually and In His Official Capacity,
Defendants - Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
(5:02-CV-73-C)
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Before JOLLY, WIENER, and PICKERING, Circuit Judges.
PER CURIAM:*
Plaintiffs-Appellants, the parents and spouse of David
Rodriguez, Sr. (“Rodriguez”), individually, as representative of
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Rodriguez’s estate, and as next friend of Rodriguez’s minor
children (collectively, the “Plaintiffs”) appeal the judgment
entered pursuant to FED. R. CIV. P. 54(b) that granted summary
judgment and dismissed the Plaintiffs’ claims asserted against the
City of Levelland, Texas, (the “City”) under 42 U.S.C. § 1983 and
the Texas Tort Claims Act. Rodriguez died after being shot by a
City police officer during the pursuit of Rodriguez’s vehicle.
1. Standard of Review
We review the grant of summary judgment de novo and consider
the evidence and inferences to be drawn from the evidence in the
light most favorable to the nonmovant. Fraire v. City of
Arlington, 957 F.2d 1268, 1273 (5th Cir. 1992). Summary judgment
is proper if the pleadings and discovery on file “together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.’” Id.; FED. R. CIV. P. 56(c).
2. 42 U.S.C. § 1983 Claims
A municipality may be held liable under 42 U.S.C. § 1983 only
when an official policy or governmental custom causes the alleged
deprivation or violation. Fraire v. City of Arlington, 957 F.2d
1268, 1277 (5th Cir. 1992). A custom or policy is shown by
evidence of “a pattern of similar incidents in which citizens were
injured or endangered by intentional or negligent police misconduct
and/or that serious incompetence or misbehavior was general or
widespread through the police force.” Fraire, 957 F.2d at 1278.
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The Plaintiffs did not produce evidence of a pattern or
custom. See id. The two prior incidents cited by the Plaintiffs
in which City police officers had shot at the tires of fleeing
vehicles are distinguishable from the instant case and do not
establish a pattern. The Plaintiffs did not show that a City
custom or policy concerning the use of force in the pursuit of
fleeing vehicles was affirmatively linked to the alleged
constitutional violation and was the moving force behind it. Id.
at 1281.
The Plaintiffs’ reliance on Grandstaff v. City of Borger, 767
F.2d 161, 171 (5th Cir. 1985), is misplaced. We expressly limited
Grandstaff “to the extraordinary facts of the case,” declaring that
our opinion “can be applied only to equally extreme factual
situations.” Snyder v. Trepagnier, 142 F.3d 791, 797-98 (5th Cir.
1998). We will not infer an unconstitutional custom or policy from
a municipality’s failure to discipline an officer for a single
incident. See Fraire, 957 F.2d at 1278-79.
Neither did the Plaintiffs produce evidence to establish
deliberate indifference on the part of the City with respect to the
training of its officers. See City of Canton v. Harris, 489 U.S.
378, 388 (1989); McClendon v. City of Columbia, 258 F.3d 432, 442
(5th Cir. 2001), reinstated in pertinent part by 305 F.3d 314, 319
(5th Cir. 2002) (en banc), cert. denied, 537 U.S. 1232 (2003). The
evidence does not show that the City was on notice that its
training procedures were inadequate or that the City deliberately
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chose not to provide adequate training. See McClendon, 258 F.3d at
442.
Evidence that a particular officer was unsatisfactorily
trained and proof that an injury could have been avoided if the
officer had been better trained is not sufficient to place
liability on a municipality. Snyder, 142 F.3d at 798. The
Plaintiffs did not provide evidence of a pattern of similar
incidents in which citizens were injured by the pursuit tactics of
City police. See id. Neither did the Plaintiffs provide evidence
that the City’s alleged inadequate training procedures caused
Rodriguez’s death. See id. at 799. The Plaintiffs also failed to
provide evidence to show that the need for training was “‘so
obvious, and the inadequacy so likely to result in the violation of
constitutional rights, that the policymakers of the [City] can
reasonably be said to have been deliberately indifferent to the
need.’” Id. at 798. As the Plaintiffs did not meet their
evidentiary burden under FED. R. CIV. P. 56, the part of the
district court’s judgment dismissing their § 1983 claims against
the City is AFFIRMED.
3. Texas Tort Claims Act Claims
Under the Texas Tort Claims Act (“TTCA”), a municipality may
be held liable “for personal injury or death caused by a condition
or use of tangible personal or real property under its control.”
Evans v. City of Marlin, 986 F.2d 104, 108 (5th Cir. 1993); TEX.
CIV. PRAC. & REM. CODE § 101.021, § 101.0215 (Vernon 1997). The TTCA
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does not apply to a claim that arises out of an intentional tort.
TEX. CIV. PRAC. & REM. CODE § 101.057(2). Texas law does not allow a
plaintiff to avoid the bar of governmental immunity by describing
essentially intentional conduct as an act of negligence. See
Hucker v. City of Beaumont, 144 F. Supp. 2d 696, 708 (E.D. Tex.
2001). Our review is de novo, and we apply substantive Texas law.
Downey v. Denton County, 119 F.3d 381, 387 (5th Cir. 1997).
The Plaintiffs alleged that Police Officer Gonzales was
negligent (1) in failing properly to aim his firearm at the tires
of Rodriguez’s vehicle, (2) in firing at Rodriguez when it was not
safe to do so, and (3) in failing to ensure that there was proper
space available to fire the gun. Officer Gonzales provided a sworn
statement that the fatal gunshot was fired accidentally into
Rodriguez’s car window and that he and Officer Wooten did not
intend to injure Rodriguez.
Under Texas law, there is no impediment to a proper
characterization of negligence when the facts may show that
officers in the course and scope of their duty improperly or
negligently used tangible personal property and caused an injury or
death. Hucker, 144 F. Supp. 2d at 708; see Texas Dep’t of Mental
Health and Mental Retardation v. Petty, 848 S.W.2d 680, 684-85
(Tex. 1992). When viewed in the light most favorable to the
Plaintiffs, the evidence would be sufficient to establish a
disputed issue of fact that precludes the grant of summary judgment
on the TTCA claims alleged against the City. See FED. R. CIV.
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P. 56(c); Fraire, 957 F.2d at 1273. Accordingly, we vacate the
district court’s judgment to the extent that it dismissed the
Plaintiffs’ claims against the City under the TTCA and remand that
part of the case to the district court for proceedings consistent
with this opinion.
4. Disqualification of Defense Counsel
Finally, we do not consider the Plaintiffs’ appeal of the
district court’s order that denied the motion to disqualify defense
counsel. See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368,
379 (1981); Bader v. Atlantic Int’l, 986 F.2d 912, 914-15 (5th Cir.
1993).
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
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