# Aviles v. Saldivar

> District Court, S.D. Texas · August 23, 2023

URL: https://www.frixlaw.com/law-library/cases/10676832

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** August 23, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10676832

## How later opinions describe it (automated extraction)

- rejecting argument that “single incident in which [plaintiff] was tased plausibly suggests deliberate indifference by the city”

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10676832. Public record. Not legal advice.