Aviles v. Saldivar

August 24, 2023

Nathan Ochsner, Clerk

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

RANDY AVILES, § CIVIL ACTION NO

Plaintiff, § 4:22-cv-03571

§

§

vs. § JUDGE CHARLES ESKRIDGE

§

§

RIGOBERTO R. §

SALDIVAR and CITY §

OF PASADENA, TX, §

Defendants. §

ORDER DENYING MOTION TO DISMISS

The motion by Defendant City of Pasadena to dismiss

it from this action is denied. Dkt 7.

1. Background

This is a civil-rights action under Section 1983

concerning the non-fatal shooting of Plaintiff Randy Aviles

by Defendant Rigoberto R. Saldivar, a City of Pasadena

police officer. Saldivar is reportedly under indictment for

this shooting, and the civil claim against him here asserts

excessive force. See Dkts 1 at ¶¶ 49–55 & 22. The two

claims against the City seek to hold it liable under Monell

v Department of Social Services, 436 US 658 (1978). One

alleges that the City failed to discipline, train, or supervise

Saldivar after he’d previously shot (and killed) an unarmed

suspect named Nathan Schenk. The other alleges that the

City has a custom or practice of protecting officers who use

excessive force. See Dkt 1 at ¶¶ 56–61.

The shootings of both Aviles and Schenk occurred

during traffic stops. Starting with his own shooting, Aviles

pleads as follows.

In January of 2021, Saldivar witnessed Aviles speed

through a red light and pulled him over. Aviles exited his

car with his hands in the air after Saldivar’s patrol car

came to a stop. Saldivar drew his gun and commanded

Aviles to get back into his car. He complied, keeping his

hands up as he did so. Saldivar then told Aviles to place his

hands outside the driver-side window. He again complied.

Id at ¶¶ 8–13. Aviles continued to comply with Saldivar’s

instructions while in the car until, without apparent

provocation, Saldivar yelled “I will shoot you” and moved

aggressively towards Aviles with his gun raised. Aviles

alleges that he feared for his life and began driving away.

Saldivar shot ten times at the car, hitting Aviles three

times in his left arm. Id at ¶¶ 9–19. Aviles was unarmed

during the encounter. Id at ¶ 1. Saldivar wasn’t terminated

or otherwise disciplined for this shooting. Id at ¶ 22.

The Schenk shooting occurred three years earlier.

Aviles alleges that in November of 2018, Saldivar saw

Schenk run a stop sign and pulled him over. When Saldivar

approached, Schenk hopped out of his car and began

running, prompting Saldivar to tase him twice. A struggle

on the ground followed as Saldivar attempted to subdue

Schenk, who managed to break free and begin to crawl

away on his hands and knees. Saldivar then shot Schenk

three times—twice in the lower back and once in his upper

chest. Schenck was unarmed and died as a result of the

shooting. Id at ¶¶ 20–29.

Aviles also alleges that Detective Michael Cooper

investigated the Schenck shooting for the Pasadena Police

Department. Detective Cooper found discrepancies

between the body camera footage and how Saldivar

described the shooting—particularly as to Saldivar’s

statement that Schenk seemed to be reaching for a gun. He

later interviewed Saldivar, who confirmed that the video

showed Schenk spinning away before Saldivar shot him.

Detective Cooper concluded from his investigation that

Saldivar had shot an unarmed man in the back as he was

crawling away and that the shooting constituted excessive

force. He informed his supervisor, Sergeant Steven

Skripka, of this conclusion. Id at ¶¶ 30–35.

Detective Cooper was later part of a meeting at the

Pasadena Police Department that included Chief of Police

Josh Brugger, the assistant chief of police, Sergeant

Skripka, and two sergeants from Internal Affairs. He

played the body-camera footage and informed Chief

Brugger of his conclusion that Schenk was crawling away

on his hands and knees when Saldivar fired his weapon.

After reviewing the video and learning of this conclusion,

“Chief Brugger decided not to take any disciplinary action

against Defendant Saldivar.” Id at ¶ 39. Saldivar wasn’t

reprimanded or terminated. He also wasn’t referred to a

training or supervision program, but instead received a

raise five months after the incident. Id at ¶¶ 36–40.

Aviles says that this result wasn’t surprising. He

alleges that the City of Pasadena has a custom or practice

of protecting police officers who use excessive force. This

policy is effectuated through (i) immediately providing

offending officers an attorney at the scene of the incident,

(ii) permitting the officer to perform an unrecorded walk-

through of the incident in the presence of his attorney

“where they can craft their version of the incident,” (iii)

conducting officer-friendly investigations in which Internal

Affairs allows the officer to clarify his positions through

soft questioning, (iv) ignoring physical and video evidence

in favor of uncorroborated statements from the offending

officers, and (v) ignoring written use-of-force policies and

caselaw to protect officers. Id at ¶ 42.

Aviles alleges that these procedures were employed in

the aftermath of both the Schenk and Aviles shootings. Id

at ¶ 43. As a result, Saldivar was exonerated and permitted

to remain on the force in both instances without receiving

discipline or training. Aviles also alleges that these

procedures have been widely employed:

[T]hese practices are not only evident in

these two cases, but are widespread and

routine within the Pasadena Police Depart-

ment in response to officer involved

shootings. Detective Cooper has testified

under oath in every instance where he was

involved as an investigator or shooter in an

officer-involved case, the officer was

afforded the opportunity to go through an

unrecorded walkthrough in the presence of

an attorney.

Id at ¶ 44. Aviles pleads neither the number of cases that

Detective Cooper has investigated, nor how many cases

have involved these procedures.

Pending is a motion by the City seeking dismissal of

the claims against it. Dkt 7. Saldivar hasn’t brought any

similar motion.

2. Legal standard

Rule 8(a)(2) of the Federal Rules of Civil Procedure

requires a plaintiff’s complaint to provide “a short and

plain statement of the claim showing that the pleader is

entitled to relief.” Rule 12(b)(6) allows the defendant to

seek dismissal if the plaintiff fails “to state a claim upon

which relief can be granted.”

Read together, the Supreme Court holds that Rule 8

“does not require ‘detailed factual allegations,’ but it

demands more than an unadorned, the-defendant-

unlawfully-harmed-me accusation.” Ashcroft v Iqbal, 556

US 662, 678 (2009), quoting Bell Atlantic Corp v Twombly,

550 US 544, 555 (2007). To survive a Rule 12(b)(6) motion

to dismiss, the complaint “must provide the plaintiff’s

grounds for entitlement to relief—including factual

allegations that when assumed to be true ‘raise a right to

relief above the speculative level.’” Cuvillier v Taylor,

503 F3d 397, 401 (5th Cir 2007), quoting Twombly, 550 US

at 555.

A complaint must therefore contain “enough facts to

state a claim to relief that is plausible on its face.”

Twombly, 550 US at 570. “A claim has facial plausibility

when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant

is liable for the misconduct alleged.” Iqbal, 556 US at 678,

citing Twombly, 550 US at 556. This standard on

plausibility is “not akin to a ‘probability requirement,’ but

it asks for more than a sheer possibility that a defendant

has acted unlawfully.” Id at 678, quoting Twombly, 550 US

at 557.

Review on motion to dismiss under Rule 12(b)(6) is

constrained. The reviewing court “must accept all well-

pleaded facts as true and view them in the light most

favorable to the plaintiff.” Walker v Beaumont Independent

School District, 938 F3d 724, 735 (5th Cir 2019), quoting

Campbell v Wells Fargo Bank NA, 781 F2d 440, 442

(5th Cir 1986). But “courts ‘do not accept as true conclusory

allegations, unwarranted factual inferences, or legal

conclusions.’” Vouchides v Houston Community College

System, 2011 WL 4592057, *5 (SD Tex), quoting Gentiello

v Rege, 627 F3d 540, 544 (5th Cir 2010). The court must

also generally limit itself to the contents of the pleadings

and attachments thereto. Brand Coupon Network LLC v

Catalina Marketing Corp, 748 F3d 631, 635 (5th Cir 2014).

3. Analysis

Section 1983 of Title 42 of the United States Code

provides in relevant part:

Every person who, under color of any

statute, ordinance, regulation, custom, or

usage, of any State or Territory or the

District of Columbia, subjects, or causes to

be subjected, any citizen of the United

States or other person within the

jurisdiction thereof to the deprivation of

any rights, privileges, or immunities

secured by the Constitution and laws, shall

be liable to the party injured in an action at

law, suit in equity, or other proper

proceeding for redress . . . .

The Supreme Court held in Monell v Department of

Social Services that cities are included within the term

persons as used in this provision. 436 US 658, 701 (1978).

But a complex and often unclear body of caselaw has since

attempted to delineate the circumstances in which a city

may be held liable when an officer employed by the city

engages in unconstitutional conduct.

One thing is clear from Monell itself—a municipality

may not be held liable simply on a respondeat superior

basis. 436 US at 691. The plaintiff must present evidence

that the municipality is itself legally responsible for the

challenged conduct. See Doe v Edgewood Independent

School District, 964 F3d 351, 364–65 (5th Cir 2020). This

is generally established by proving that (i) an official policy

(ii) promulgated by a municipal policymaker (iii) was the

“moving force” behind the violation of a constitutional

right. Piotrowski v City of Houston, 237 F3d 567, 578

(5th Cir 2001) (citations omitted).

The focus of the City’s motion is upon the first and third

of these requirements. See Dkt 7. It doesn’t dispute that its

Chief of Police is a policymaker.

Various types of Monell claims have developed over the

years. When distinguishing between them, the first prong’s

requirement of an official policy is the most important. This

prong is typically established by showing either “written

policy statements, ordinances, or regulations,” or a

widespread practice by non-policymaking employees “that

is so common and well-settled as to constitute a custom

that fairly represents municipal policy.” See Webb v Town

of Saint Joseph, 925 F3d 209, 214–15 (5th Cir 2019). But a

written policy or widespread practice isn’t always required

to establish an official policy. In certain “rare

circumstances,” a single decision may also constitute an

official policy. See ibid. What’s more, a failure to train,

supervise, or discipline employees may, “[i]n limited

circumstances,” also “rise to the level of an official

government policy for purposes of § 1983.” Connick v

Thompson, 563 US 51, 61 (2011); accord Madden v

Gribbon, 2022 WL 4360558, *5 (ND Tex).

Neither claim brought by Aviles proceeds with regard

to a written policy. Instead, one of the claims (discussed

immediately below) appears to mix allegations of both

widespread practice and a single decision, alleging that the

City is liable for the single decision by the Chief of Police

not to discipline, train, or supervise Aviles. The other

appears to proceed strictly upon allegation that the City

had a widespread practice of protecting officers involved in

police shootings.

a. Failure to discipline, train, or supervise

The first of two claims Aviles brings under Monell

alleges that the City—through its Chief of Police—failed to

discipline, train, or supervise Saldivar after he shot and

killed Schenk, resulting in the shooting of Aviles three

years later. See Dkt 1 at ¶ 60. To be clear, Aviles

specifically disclaims this as a ratification claim, which is

a primary basis of attack by the City. Compare Dkt 9 at 15,

with Dkt 7 at 9–10.

Caselaw establishes that claims for failure to

discipline, train, or supervise require proof that (i) the

municipality, through an official policymaker, failed to

discipline, train, or supervise its employees, (ii) the failure

amounted to deliberate indifference, and (iii) the failure

directly caused the constitutional violation in question. See

Hunter v City of Houston, 564 F Supp 3d 517, 529 (SD Tex

2021), citing Deville v Marcantel, 567 F3d 156, 171 (5th Cir

2009). By comparison to the three prongs initially noted

above as applicable to all Monell claims, the first prong on

this claim variant corresponds to and combines those first

and second prongs; the requirement of proof of deliberate

indifference under the second prong is an additional

limitation imposed on claims of this type; and the third

prong essentially stays the same. See Connick v Thompson,

563 US 51, 61 (2011).

Claims of this variety most often proceed on argument

that the municipality’s disciplinary, training, or super-

vision program is inadequate in some way, and that this

inadequacy resulted in the deprivation of constitutional

rights. See Roberts v City of Shreveport, 397 F3d 287, 293

(5th Cir 2005); see also City of Canton v Harris, 489 US

378, 390 (1989): “The failure to provide proper training

may fairly be said to represent a policy for which the city is

responsible, and for which the city may be held liable if it

actually causes injury.” The focus of such claims is thus

systemic failure by the municipality. For example, in the

failure-to-discipline context, this might entail showing that

investigations into misconduct were subjected to

“systematic inattention” or were purely formalistic and

perfunctory.

Regardless the context, this means that such claims

will almost always entail showing “a pattern of abuses” by

untrained, undisciplined, and/or unsupervised employees.

Piotrowski v City of Houston, 237 F3d 567, 581–82 (5th Cir

2001). This demonstration of a pattern matters for

establishing not only an official policy (as required for all

Monell claims), but also deliberate indifference (as

required for all claims for failure to discipline, train, or

supervise in particular). See id at 582. For example, as

stated by the Fifth Circuit in Hutcheson v Dallas County,

the plaintiff “normally must allege a ‘pattern of similar

constitutional violations by untrained employees’” to

establish deliberate indifference for a failure-to-train

claim. 994 F3d 477, 482 (5th Cir 2021) (citation omitted).

But the failure to discipline, train, or supervise needn’t

always be a systemic one. The Fifth Circuit made clear in

Brown v Bryan County that, “under limited circumstances,

§ 1983 liability can attach for a single decision not to train

an individual officer even where there has been no pattern

of previous constitutional violations.” 219 F3d 450, 459 (5th

Cir 2000). Brown was itself a failure-to-train case, but the

conclusion of its nature applies equally to all failure-to-act

claims. This means that a single decision by a policymaker

not to discipline, train, or supervise a specific officer may,

in limited circumstances, constitute an official policy and

thus set part of the predicate for municipal liability on such

a theory.

Even so, where a single decision is the basis of such a

claim, the second prong—deliberate indifference—is

particularly difficult to establish. The plaintiff must “prove

that the highly predictable consequence of a failure to train

would result in the specific injury suffered.” Hutcheson,

994 F3d at 482, quoting Valle v City of Houston, 613 F3d

536, 549 (5th Cir 2010); accord Brown, 219 F3d at 461. An

injury is highly predictable only when the municipality

“failed to train its employees concerning a clear

constitutional duty implicated in recurrent situations that

a particular employee is certain to face.” Littell v Houston

Independent School District, 894 F3d 616, 624–25 (5th Cir

2018). The “duty not to use excessive force” has been

recognized as a clear constitutional duty in this respect.

Ibid. And as for the third prong’s requirement of causation,

the failure to act must be “clearly connected” to the

constitutional injury suffered by the plaintiff. Brown,

219 F3d at 461.

The Fifth Circuit in Brown determined that all three of

the above elements were satisfied upon review of a jury

verdict against Bryan County, Oklahoma. The case

concerned an inexperienced reserve deputy, who forcefully

removed a woman from a car using an “arm bar” technique

that resulted in severe injuries. Id at 454. That deputy had

essentially no law enforcement background, and Bryan

County had provided him with no training and very little

supervision. Its apparent practice was simply to hire

individuals who had already completed a training program

provided by the State of Oklahoma, which the deputy may

or may not have completed. He’d also engaged in childish

and unlawful behavior before joining the force and had a

history of questionable takedown arrests in the short time

that he’d served as a deputy. Id at 455–56.

The Fifth Circuit determined that the relevant

policymaker in the case—the county sheriff—had sufficient

notice of the above facts to know that there was a need to

train or supervise this particular deputy, and that the

deputy would be involved in making forcible arrests.

Despite such knowledge, the sheriff chose not to train or

supervise an inexperienced, reckless officer. This single

decision, the Fifth Circuit held, could serve as the basis for

a failure-to-train claim. Id at 459–61. And it was a highly

predictable consequence of that decision that the deputy

would violate the Fourth Amendment rights of citizens

while working as an officer—meaning that the deliberate-

indifference prong was satisfied. Id at 462–63. The

causation prong was also satisfied, there being sufficient

evidence that the failure to train or supervise the deputy

resulted in the constitutional violation of the woman he

injured during the traffic stop. Id at 463–65.

The current posture here is only upon review of a

motion to dismiss. Unlike Brown, then, the sufficiency of

the evidence isn’t being tested. Aviles may well not be able

to muster sufficient evidence to resist a future motion for

summary judgment, particularly as the circumstances of

the Schenk shooting become clear. But the question at

hand is solely whether he’s pleaded facts that plausibly

support each element of a failure-to-act claim. He has.

The allegations in the original complaint are

summarized above. It suffices to note that this generally

includes allegations that (i) Saldivar shot and killed

Schenk, who was unarmed and crawling away, during an

altercation following a traffic stop; (ii) Chief Brugger was

informed of an investigatory conclusion that Saldivar used

excessive force against Schenk; (iii) Chief Brugger watched

the video of that shooting himself; (iv) Chief Brugger then

decided not to take any disciplinary action against Saldivar

or require additional training or supervision; (v) this

emboldened Saldivar to believe that he could shoot

unarmed citizens without consequence; and (vi) Saldivar

subsequently shot Aviles, who was also unarmed, during a

traffic stop. See Dkt 1 at ¶¶ 8–48.

This is sufficient to state a claim for failure to

discipline, supervise, or train under Brown. As there, the

single decision by Chief Brugger not to act in response to

the Schenk shooting may serve as the basis for a claim

against the City for failure to discipline, train, or supervise.

And it’s at least plausible that a further shooting of an

unarmed, fleeing man was a “highly predictable

consequence” of not disciplining, training, or supervising

Saldivar after that prior shooting—meaning that the

decision not to act in this respect could plausibly amount

to deliberate indifference. See Brown, 219 F3d at 461. It’s

also plausible that this decision, as Aviles alleges,

emboldened Saldivar to use excessive force again (or at

least left him in a position to do so) against Aviles,

providing the necessary causal link.

Though not cited in its motion, the City at hearing

noted Grandstaff v City of Borger, 767 F2d 161 (5th Cir

1985), arguing that the extreme circumstances supporting

municipal liability on the basis of a single incident there

don’t exist here. Brown is often treated as though it stands

for the same proposition as Grandstaff with respect to

municipal liability. But Brown is in fact quite distinct from

Grandstaff, while also being of more pertinent application

under the allegations here.

In Grandstaff, six police officers showered bullets on an

innocent man whom they mistook for a fugitive. Id at 164–

65. The Fifth Circuit held that the city that employed the

officers could be held liable for this shooting, even though

the plaintiff had no proof of prior incidents of misconduct

by the police. Most important in this respect, the court

determined that the responsibility of the city for an

unconstitutional policy or custom could be inferred from “so

gross an abuse of the use of deadly weapons” on the night

of the shooting. Id at 171. Grandstaff was thus a case in

which the responsibility of the municipality was inferred

from a single incident of misconduct simultaneously

involving a large number of officers that resulted in injury.

Since such inferential steps draw very near to holding a

municipality liable on a respondeat superior basis,

Grandstaff has largely been cabined to its facts. See Peña

v City of Rio Grande City, 879 F3d 613, 623 (5th Cir 2018)

(rejecting argument that “single incident in which

[plaintiff] was tased plausibly suggests deliberate

indifference by the city”).

By comparison, Brown stands for the proposition that

a single decision by a policymaker with respect to a

particular officer may constitute an official policy in certain

circumstances. It doesn’t stand for the proposition that

either deliberate indifference or the existence of an

unconstitutional policy may be inferred from the fact that

the officer engaged in the single incident of misconduct at

issue. To the contrary, the Fifth Circuit made it harder in

Brown to establish deliberate indifference in single-

decision cases by requiring proof that it was highly likely

that the officer in question would commit future violations

in the absence of training or supervision. Such a high

likelihood was proven in Brown itself by looking at the

characteristics and past conduct of the deputy, including

his history of forcible arrests. But no inference was made

from the fact of the forcible takedown of the plaintiff.

Aviles doesn’t argue that the failure to discipline, train,

or supervise should be inferred from the fact that Saldivar

shot him. He simply argues that the prior shooting of

Schenk by Saldivar put Chief Brugger on notice that

Saldivar was highly likely to commit future Fourth

Amendment violations in the absence of disciplinary or

other corrective action. This brings the case within the

ambit of Brown.

The motion to dismiss is denied with respect to the

failure-to-discipline claim.

b. Custom of protecting officers

The second claim by Aviles alleges that the City had a

custom of protecting officers involved in police shootings,

resulting in the shooting of Aviles. Dkt 1 at ¶ 60. Though

weaker, this claim is also sufficient to survive a motion to

dismiss.

A custom is “a persistent, widespread practice of City

officials or employees, which, although not authorized by

officially adopted and promulgated policy, is so common

and well-settled as to constitute a custom that fairly

represents municipal policy.” Piotrowski, 237 F3d at 579.

Proof of a pattern of conduct is thus typically necessary.

And that “requires ‘sufficiently numerous prior incidents,’

as opposed to ‘isolated instances.’” Peterson v City of Fort

Worth, 588 F3d 838, 851 (5th Cir 2009).

The complaint by Aviles describes in detail the

purportedly officer-friendly procedures employed by the

City following shooting incidents. Dkt 1 at ¶ 42; accord

Estate of Baker v Castro, 2018 WL 4762984, *17 (SD Tex).

He also pleads that these particular procedures were

applied in both incidents involving Saldivar, resulting in

his exculpation in each case. Dkt 1 at 4 43. And he pleads

that at least one of the procedures—the unrecorded

walkthrough—was employed in all of the cases involving

Detective Cooper as an investigator. Id at 4 44.

This plausibly pleads that the City has a custom of

protecting officers who use excessive force. That said,

missing from the complaint are specific prior incidents

(aside from the Aviles and Schenk shootings) in which the

post-shooting procedures he describes were employed. Also

missing are statistics on the frequency of use of excessive

force by officers for the City. But it was clear from the

motion hearing that the City was satisfied with this claim

proceeding to discovery, given the limited availability of

such statistics pre-discovery.

The motion to dismiss with respect to the custom-or-

practice claim will also be denied.

4. Conclusion

The motion by Defendant City of Pasadena to dismiss

is DENIED. Dkt 7.

SO ORDERED.

Signed on August 23, 2023, at Houston, Texas.

Che 0 rludy =

Hon. Charles Eskridge

United States District Judge

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