The opinion
UNITED STATES DISTRICT COURT November 30, 2023
SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
HOUSTON DIVISION
BRITTTANY SALINAS, et al., §
§
Plaintiffs, §
§
VS. § CIVIL ACTION NO. 4:22-CV-04120
§
CITY OF HOUSTON, et al., §
§
Defendants. §
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Before the Court are the defendants’, City of Houston, Texas, & Houston Police
Officers Manuel Salazar & Nestor Garcia, motions to dismiss (DEs 40 & 41). The
plaintiffs, the Estate of David Salinas, Brittany Salinas, & Nelda Salinas, have
responded (DEs 45 & 47), and the defendants have replied (DEs 49 & 50). After
reviewing the motions, the pleadings, the record, and the applicable law, the Court
determines that the defendants’ motions should be GRANTED.
II. FACTUAL BACKGROUND1
In July of 2021, Houston Police Department (“HPD”) Officers Manuel Salazar
and Nestor Garcia (“the Officers”) attempted to pull over David Salinas as part of a
sting operation. When he did not pull over, a chase ensued, ending when Salinas
1 In recounting these facts, the Court assumes the truth of the allegations contained in the plaintiffs’
second amended complaint.
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crashed his car. The Officers parked their cruiser next to Salinas’ driver-side door,
blocking Salinas in his car. The Officers drew their firearms, called for assistance,
and yelled at Salinas, “Hey! Hands! Hands! Hands! Hands!” Injured and disoriented
from the crash, Salinas struggled to stabilize himself. He apparently raised and
lowered his hands intermittently, and only partially complied with the Officers’
orders. When Salinas began reaching for something, Officer Salazar yelled, “Hey!
He’s reaching!” The Officers fired over rounds into Salinas, killing him. At no point
did the Officers see Salinas wield a gun.
III. CONTENTIONS OF THE PARTIES
The plaintiffs bring seven claims against the City: five Section 1983 claims
variously alleging failure to train and supervise, and two state law negligence claims.
The plaintiffs also bring four claims against the Officers: two state law negligence
claims, a Fourth Amendment claim, and a state-created danger claim.
The City argues that the Section 1983 claims fail because the plaintiffs have
not shown a failure to train, constituting deliberate indifference to the plaintiffs’
rights. The City further asserts that the state law claims must be dismissed because
the Texas Tort Claims Act (“TTCA”) does not waive the City’s immunity. The City
also maintains that the plaintiffs lack capacity to sue.
The Officers, meanwhile, argue that the plaintiffs have not pled facts to
overcome the Officers’ qualified immunity. The Officers assert that the plaintiffs
cannot apply the TTCA to them after invoking it against the City.
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The plaintiffs respond to the City by alleging that the Officers had insufficient
training, and that the Officers’ conduct proves this. The plaintiffs insist that the
TTCA waives the City’s immunity because the Officers’ firearms were tangible
personal property under the TTCA. Finally, the plaintiffs urge that the Officers’
unreasonable conduct overcomes their qualified immunity.
IV. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) authorizes a motion to dismiss for
“failure to state a claim upon which relief can be granted.” Under the demanding
standards of a Rule 12(b)(6) motion, “[t]he plaintiff’s complaint is to be construed in
a light most favorable to the plaintiff, and the allegations contained therein are to be
taken as true.” Oppenheimer v. Prudential Sec., Inc., 94 F.3d 189, 194 (5th Cir. 1996).
Dismissal is appropriate only if the “[f]actual allegations [are not] enough to raise a
right to relief above the speculative level, on the assumption that all the allegations
in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). A court’s review is limited to the allegations in the complaint
and any documents attached to a defendant’s motion to dismiss, if they are both
referred to in the complaint and central to the claims. Causey v. Sewell Cadillac-
Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004).
V. ANALYSIS & DISCUSSION
Before proceeding to the plaintiffs’ claims, the Court must address two issues
raised by the defendants. First, the defendants challenge the plaintiffs’ capacity to
bring this suit. In Texas, a personal injury action survives to and in favor of the heirs,
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legal representatives, and estate of the injured person. TEX. CIV. PRAC. CODE
71.021(b). Brittany Salinas is the surviving spouse and the Administrator of David
Salinas’ estate. Accordingly, Brittany has capacity to bring these claims both by
virtue of her status as the legal representative of the estate and as Salinas’ surviving
spouse. The other plaintiffs do not respond to the defendants’ argument, nor do they
otherwise show their capacity. Accordingly, they are dismissed for lack of standing.
Second, the Court declines the defendant’s exhortation to consider footage from
the Officers’ body cameras. “[T]he court may not look beyond the pleadings in ruling
on [a 12(b)(6)] motion.” Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). While the
Court may consider documents that are central to the claims, this footage does not
qualify. Rather, “[t]he video here merely records the events on which suit is based, it
does not create the events on which suit is based.” Turk v. Mangum, No. 4:15-CV-
1003, 2016 WL 11529682, at *1 (S.D. Tex. June 20, 2016).
A.1. Section 1983 Claims Against the City
A(1)(a). Failure to Promulgate Guidelines and Failure to Train
A plaintiff suing under Section 1983 must show that the injuries complained
about were caused by a government’s policy or custom. “To establish municipal
liability under § 1983, a plaintiff must show that (1) an official policy (2) promulgated
by the municipal policymaker (3) was the moving force behind the violation of a
constitutional right.” Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 847 (5th Cir.
2009). A plaintiff need not point to an explicit, written policy, but allege that a
“persistent, widespread practice of city officials or employees, which, although not
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authorized by officially adopted and promulgated policy, is so common and well
settled as to constitute a custom that fairly represents municipal policy.” Webster v.
City of Houston, 735 F.2d 838, 841 (5th Cir.), on reh’g, 739 F.2d 993 (5th Cir. 1984).
The plaintiffs allege that two City policies led to Salinas’ injuries. First, she
pleads that the City failed to promulgate proper guidelines for the use of deadly force.
The plaintiffs’ complaint undermines this theory: “The acts of the [d]efendant Officers
were done with the purpose and intent of using unwarranted deadly force upon the
Decedent, in violation of the City of Houston’s policy, practice or custom on the use of
deadly force.” The policy must be the “moving force” behind the plaintiffs’ injury. Yet,
the plaintiffs plead that the City employees violated the City’s policy when they killed
Salinas. Accordingly, this theory fails.
The second policy alleged by the plaintiffs is that the City failed to train,
supervise, and discipline officers who use excessive force in making arrests. The
plaintiffs support this allegation with the assertion that the Officers did not have the
Intermediate Proficiency Certification or Crisis Intervention and De-escalation
Training required by the Texas Commission on Law Enforcement (“TCOLE”). The
plaintiffs also list examples of excessive force claims against HPD over the years.
The plaintiffs’ failure-to-train theory requires a plaintiff to prove that “1) the
[City] failed to train or supervise the officers involved; 2) there is a causal connection
between the alleged failure to supervise or train and the alleged violation of the
plaintiff’s rights; and, 3) the failure to train or supervise constituted deliberate
indifference to the plaintiff’s constitutional rights.” Thompson v. Upshur Cty., 245
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F.3d 447, 459 (5th Cir. 2001). “[D]eliberate indifference generally requires that a
plaintiff demonstrate ‘at least a pattern of similar violations’ arising from training
that is so clearly inadequate as to be ‘obviously likely to result in a constitutional
violation.’” Burge v. St. Tammany Par., 336 F.3d 363, 370 (5th Cir. 2003) (quoting
Thompson, 245 F.3d at 459).
The plaintiffs do not specify a pattern of similar violations arising from [the
lack of] training. She mentions a 2005 incident in which an HPD officer shot and
killed an unarmed suspect, which the plaintiffs allege was due to the officer’s lack of
training. The plaintiffs also cite a 2014 incident in which an HPD officer pushed an
arrestee’s head into a jail cell door, and a 2016 incident in which a “Houston jailer”
beat an inmate. These three incidents over the last 18 years do not constitute a
pattern of violations similar to those alleged here, let alone due to similar training
defects. The plaintiffs’ unadorned assertion that “[o]ver the past 13 years there have
been over 20 instances of Houston Police Department wounding and killing
individuals by firearms,” with no reference to the type of training that was omitted,
does not save their claims.
Finally, the plaintiffs allege a sort of res ipsa loquitur failure to train theory:
properly trained officers would not have done what the plaintiffs allege, so the
Officers must have insufficient training. This ipso facto reasoning cannot succeed.
A(1)(b). State-Created Danger Theory
The plaintiffs also advance a “state-created danger theory” of liability: “When
state actors knowingly place a person in danger, the due process clause of the
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constitution has been held to render them accountable for the foreseeable injuries
that result from their conduct, whether or not the victim was in formal state
‘custody.’” Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198, 200 (5th Cir. 1994). The
plaintiffs allege that the City created a danger to Salinas when the Officers blocked
his car door with their cruiser.
The problem is that this Circuit has never adopted the state-created danger
theory. The Fifth Circuit’s most recent treatment of the theory was not promising:
“As for whether to adopt the state-created danger theory of constitutional liability
moving forward, we are reluctant to expand the concept of substantive due process.”
Fisher v. Moore, 73 F.4th 367, 369 (5th Cir. 2023). The plaintiffs’ briefing, which does
not even attempt to justify the theory’s novel use, does not overcome this reluctance.
Finally, to the extent the plaintiffs brings their failure-to-provide-medical-care
claim against the City, it fails; the plaintiffs do not even try to fit it into a policy.
Thus, the plaintiffs’ Section 1983 claims against the City fail.
A (2) State Law Claims Against the City
The plaintiffs’ state law claims implicate sovereign immunity. “Sovereign
immunity is jurisdictional.” Cozzo v. Tangipahoa Par. Council—President Gov’t, 279
F.3d 273, 280 (5th Cir. 2002). “Sovereign immunity protects Texas and its political
subdivisions—including municipalities like Houston—from suits for money
damages.” St. Maron Properties, L.L.C. v. City of Houston, 78 F.4th 754, 762–63 (5th
Cir. 2023). The plaintiffs bear the burden of establishing the State’s waiver of
immunity. Texas Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).
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The plaintiffs do not explicitly assert that the City waived its sovereign
immunity. However, the plaintiffs’ second amended complaint twice mentions the
Texas Tort Claims Act (“TTCA”). The TTCA waives the City’s immunity for limited
claims of negligence. TEX. CIV. PRAC. & REM. CODE § 101.021. First, the plaintiffs
generally assert that “the City of Houston is subject to the [TTCA] for the actions of
its agencies, agents, employees, representatives, etc.”; and second, “[t]he firearms
used that killed Mr. Salinas . . . [were] the type of negligent use of tangible personal
property that the TTCA was intended to address.”
Even construing the plaintiffs’ complaint generously, the plaintiffs’ claims do
not fall within the TTCA. The plaintiffs’ first negligence claim argues that: “The
Defendant Officers through the use of the personal governmental-issued property,
i.e., the firearms as assigned to them took the life of the Decedent. The conduct of the
City of Houston, Texas through its police officers rises to the level of gross negligence.”
The problem with this assertion is that it merely attempts to backdoor an intentional
tort claim—the officer’s alleged use of excessive force—as a negligence claim under
the TTCA. This is not permitted. “The TTCA limits its waiver of liability on personal
injury claims to negligence . . . ‘The determinative question is whether the negligence
claim arises from the same facts that form the basis of the intentional-tort claim.’”
Pena v. City of Rio Grande City, 879 F.3d 613, 625 (5th Cir. 2018) (quoting Quinn v.
Guerrero, 863 F.3d 353, 364 (5th Cir. 2017)).
The firearm that killed Salinas forms the basis for both the negligence and the
Fourth Amendment claims: “Defendant Officers did not shoot just once or twice, they
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shot the Decedent multiple times at close range with the intent of causing serious
bodily harm or death.” (emphasis added). This “forecloses [the plaintiffs’] effort to
bifurcate those two actions. Thus, the TTCA does not waive sovereign immunity with
respect to [the plaintiffs’] claims.” Pena, 879 F.3d at 625. The same analysis forecloses
the plaintiffs’ claim of negligence per se against the City. Accordingly, the plaintiffs’
state law claims must be dismissed.2
B. The Defendant Officers
The plaintiffs’ choice to sue the City under the TTCA forecloses their state law
claims against the Officers. “The filing of a suit under this chapter against a
governmental unit constitutes an irrevocable election by the plaintiff and
immediately and forever bars any suit or recovery by the plaintiff against any
individual employee of the governmental unit regarding the same subject matter.”
TEX. CIV. PRAC. & REM. CODE § 101.106. The only remaining claim, then, is the
plaintiffs’ Fourth Amendment claim against the Officers.
This claim implicates qualified immunity. Qualified immunity shields
government officials from liability if their conduct “does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To survive a motion to
dismiss, plaintiffs must 1) plead that a constitutional right was violated and 2) show
2 It is unclear if the plaintiffs intended to bring a negligent training claim under state law. But the
plaintiffs do not begin to make an argument that the TTCA waives sovereign immunity for such a
claim. Indeed, the bulk of the plaintiffs’ response brief focuses on when the TTCA does not apply.
Accordingly, this claim must also be dismissed.
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that “the right at issue was ‘clearly established’ at the time of defendant’s alleged
misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009).
To show that a right is clearly established, a plaintiff “has two paths: (A) she
can identify an on-point case, or (B) she can satisfy the obvious-case exception.”
Henderson v. Harris Cnty., Texas, 51 F.4th 125, 132 (5th Cir. 2022), cert. denied sub
nom. Henderson v. Harris Cnty., 143 S. Ct. 2661 (2023). A plaintiff’s burden for
Fourth Amendment claims is especially heavy. Henderson, 51 F.4th at 132. A plaintiff
must show that the right is “so clearly established that—in the blink of an eye, in the
middle of a high-speed chase—every reasonable officer would know it immediately.”
Morrow v. Meachum, 917 F.3d 870, 876 (5th Cir. 2019).
The plaintiffs bring two Fourth Amendment claims: excessive force and failure
to provide medical care. The plaintiffs do not attempt to identify an on-point case
showing that Salinas’ allegedly violated rights were clearly established. Nor do the
plaintiffs argue that these facts satisfy the obvious case exception. After fleeing the
Officers, Salinas reached for an object instead of fully complying with the order to put
his hands up. The entire tragic event occurred in a “matter of seconds.” It is therefore
not obvious that the Officers’ force was excessive. The plaintiffs argue that the
Officers acted “unreasonably,” but that is not the proper standard. Accordingly, the
Officers are entitled to qualified immunity.
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VI. CONCLUSION
For the foregoing reasons, the defendant’s motion to dismiss is GRANTED.
The plaintiffs’ claims are dismissed with prejudice. The Court DENIES the
plaintiffs’ motion for leave to replead a third time—the plaintiffs does not specify
how a repleading would cure the defects in their complaint, as they have already
re-pled twice.
Itis sco ORDERED.
SIGNED on November 30, 2023, at Houston, Texas.
United States District Judge
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