Aviles v. Saldivar

□ Southern District of Texas

ENTERED

August 19, 2024

Nathan Ochsner, Clerk

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

RANDY AVILES, § CrvIL ACTION No

Plaintiff, § 4:22-cv-03571

§

§

vs. § JUDGE CHARLES ESKRIDGE

§

§

RIGOBERTO R. §

SALDIVAR and CITY §

OF PASADENA, TX, §

Defendants. §

OPINION AND ORDER

ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

The motion for summary judgment by Plaintiff Randy

Aviles is denied. Dkt 47.

The motion for summary judgment by Defendant City

of Pasadena is granted as to the claim alleging that it has

a custom or policy of protecting officers that use excessive

force. It is denied in all other respects. Dkt 40.

1. Background

This action concerns the non-fatal shooting of Plaintiff

Randy Aviles by Defendant Rigoberto R. Saldivar, who is a

police officer employed by Defendant City of Pasadena.

Saldivar was indicted for this shooting in January 2023.

Dkt 40-23 at 76, 94-95, 118, 2038.

A detailed recitation of the allegations in this matter

are set out in a previous order denying a motion to dismiss

brought by the City. See Dkt 30 at 1-4. In very short

summary, Aviles alleges that Saldivar previously shot and

killed an unarmed suspect named Nathan Schenk during

a traffic stop in 2018; City officials afterwards didn’t

discipline Saldivar despite investigator recommendations

to do so; and three years later, Saldivar shot the unarmed

Aviles, also during a traffic stop.

Against Saldivar, Aviles asserts a claim for excessive

force. Dkt 1 at 449-55. Against the City, he asserts claims

alleging that (i) it failed to discipline, train, or supervise

Saldivar after he previously shot and killed Schenk, and

(ii) it has a custom and practice of protecting officers who

use excessive force. Dkt 1 at 456-61.

Now on summary judgment, it suffices to note that at

least some record evidence backs up each of those factual

allegations. The only additional evidence introduced is the

fact that Saldivar also engaged in a non-fatal shooting four

months prior to the Schenk shooting. In April 2018,

Saldivar encountered Angel Ramirez after receiving a

report of suspicious activity in the neighborhood. Saldivar

exited his patrol vehicle; shined his light on Ramirez;

noticed a gun in Ramirez’s hand; opened fire without prior

verbal warning; and discharged four shots at Ramirez,

none of which hit him. It was later discovered that the gun

Ramirez was holding was a pellet gun. Dkt 47 at 11, citing

Dkt 47-3 at 18.

Pending is a motion by Aviles for summary judgment

that (4) the Chief of Police, Joshua Bruegger, was the City

policymaker, (ii) he exhibited deliberate indifference

because he was on notice that Saldivar needed training,

supervision, or discipline and failed to require it, and

(111) this failure to discipline Saldivar constituted a policy

or custom of the City and was the moving force behind

Saldivar’s shooting of Aviles. Dkt 47.

Also pending is a motion for summary judgment by the

City that there is no evidence (i) of failure to discipline,

train, or supervise Saldivar because, among other things,

there is no evidence as to the need for disciplinary action

due to his past conduct or as to deliberate indifference by

the City’s policymaker, and (ii) that the City has a custom

or policy of protecting officers who use excessive force.

Dkt 40.

2. Legal standard

Rule 56(a) of the Federal Rules of Civil Procedure

requires a court to enter summary judgment when the

moving party establishes that it is entitled to judgment as

a matter of law because no genuine dispute exists as to any

material fact. See Trent v Wade, 776 F3d 368, 376 (5th Cir

2015). The Fifth Circuit holds that a fact is material if its

resolution in favor of one party might affect the outcome of

the lawsuit under governing law. Sossamon v Lone Star

State of Texas, 560 F3d 316, 326 (Sth Cir 2009) (citations

omitted). And the Fifth Circuit holds that a genuine dispute

of material fact exists “when the ‘evidence is such that a

reasonable jury could return a verdict for the nonmoving

party.” Nola Spice Designs LLC v Haydel Enterprises Inc,

783 F3d 527, 536 (5th Cir 2015), quoting Anderson v

Liberty Lobby, 477 US 242, 248 (1986).

The summary judgment stage doesn’t involve weighing

the evidence or determining the truth of the matter. The

task 1s solely to determine whether a genuine issue exists

that would allow a reasonable jury to return a verdict for

the nonmoving party. Smith v Harris County, 956 F3d 311,

316 (5th Cir 2010), quoting Anderson, 477 US at 248.

Disputed factual issues must be resolved in favor of the

nonmoving party. Little v Liquid Air Corp, 37 F3d 1069,

1075 (5th Cir 1994). All reasonable inferences must also be

drawn in the light most favorable to the nonmoving

party. Connors v Graves, 538 F3d 378, 376 (5th Cir 2008),

citing Ballard v Burton, 444 F3d 391, 396 (5th Cir 2006).

The moving party typically bears the entire burden to

demonstrate the absence of a genuine issue of material

fact. Nola Spice Designs LLC v Haydel Enterprises Inc,

783 F8d 527, 536 (5th Cir 2015); see also Celotex Corp v

Catrett, 477 US 317, 322-23 (1986). But when a motion for

summary judgment by a defendant presents a question on

which the plaintiff bears the burden of proof at trial, the

burden shifts to the plaintiff to proffer summary judgment

proof establishing an issue of material fact warranting

trial. Nola Spice, 783 F3d at 536. To meet this burden of

proof, the evidence must be both “competent and

admissible at trial.” Bellard v Gautreaux, 675 F3d 454, 460

(5th Cir 2012).

When parties file opposing motions for summary

judgment on the same issue, the court reviews each motion

independently, each time viewing the evidence and

inferences in the light most favorable to the nonmoving

party. Amerisure Insurance Co v Navigators Insurance Co,

611 F38d 299, 304 (5th Cir 2010). Each movant must

establish that no genuine dispute of material fact exists,

such that judgment as a matter of law is in order. Ibid; see

also Tidewater Inc v United States, 565 F38d 299, 302

(5th Cir 2009).

3. Analysis

Genuine disputes of material fact largely preclude

summary judgment. The only exception is that the City is

entitled to summary judgment as to the claim regarding

widespread practice or custom.

a. Failure to discipline, train, or supervise

Aviles brings two claims against the City that seek to

hold it liable under Monell v Department of Social Services,

436 US 658 (1978). In the first, he 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 J 60.

Bodycam video of the Schenk shooting exists. There’s no

dispute that it was reviewed by Bruegger. But the video

isn’t of high quality or clarity, and the parties join issue as

to what’s discernible on it. The City argues that, before the

shooting of Aviles, the facts “did not support disciplinary

action against Officer Saldivar,” as the bodycam video is “a

recording of darkness that does not distinctly depict

anything.” Dkt 40 at 20. It further states that “without

crediting the Schenk recording,” there’s “no information a

governmental policymaker could reasonably rely on to

conclude Officer Saldivar posed a risk.” Id at 23. And so, it

says, Bruegger (and thus, the City) can’t be found to have

been deliberately indifferent. Ibid. Aviles responds that the

need for discipline “was so obvious” after Saldivar shot

Schenk in the back. Dkts 52 at 19 & 47 at 18. He argues

that the video clearly shows Aviles shooting an unarmed

Schenk in the back, and so refusal by Bruegger to discipline

Saldivar constitutes intentional and deliberate indiffer-

ence. Dkts 52 at 21-22 & 47 at 20.

The lynchpin of the competing arguments is what,

exactly, is seen on the bodycam video of the Schenk

shooting. This raises an inherent, underlying dispute of

material fact. It isn’t for this Court to pick one version over

the other, where each forwards what’s at least a plausible

description that a jury might determine it sees upon its

own review.

Indeed, the following remark from the City

immediately undercuts its motion, while vividly capturing

exactly why it must go to the jury: “And regardless of the

creative interpretations of the two Detectives who claim to

be capable of seeing Officer Saldivar shoot Schenk as he

crawls away, no reasonable jury who views the recording

that interpretation 1s based on could reasonably accept the

Detective’s testimony in that regard.” Dkt 40 at 12-13

(emphasis added). And the jury will also receive the

following or similar testimony as to the viewing of that

video by Bruegger in the presence of one of the referenced

investigating officers:

Specifically, Detective Michael Cooper

testified at his deposition that he informed

Chief Bruegger that Defendant Saldivar

had shot Nathan Schenk while Mr. Schenk

was on his hands and knees crawling away.

Cooper testified that he played the body

camera video of the shooting for Chief

Bruegger, both at regular speed and in slow

motion. Cooper also testified that he

showed the Chief the video of the Schenk

shooting frame by frame to show the

muzzle flash from Saldivar’s gun as Schenk

was on his hands and knees. Cooper

testified that he stopped the video to show

when Saldivar shot with Schenk on his

hands and knees.

Dkt 47 at 7 (summary from Aviles motion, deposition

citations omitted).

There is more, but that’s enough. One wonders, in the

face of such testimony, why the City even presses for

summary judgment on an issue such as this. For the City

itself concedes that after-the-fact investigating officers

actually agreed at least in some respects with what Aviles

believes is shown on the bodycam footage. And stark

testimony as to Bruegger’s viewing of that video—along

with the conclusion of investigating officers at the time—

will be available for the jury’s consideration, along with

apparent evidence that Bruegger neither undertook follow-

up with Saldivar, nor disciplined or retrained him in any

way. See Dkt 47 at 10 (Plaintiffs motion, citing Bruegger

deposition).

Neither party shows, as a matter of law, that Bruegger

was or was not deliberately indifferent when he refused to

discipline Saldivar after watching the bodycam video of the

Schenk shooting. The motions for summary judgment will

be denied as to this claim.

b. Official policy or custom

The second Monell claim alleges that the City has a

general custom and practice of protecting officers who use

excessive force, which resulted in the shooting of Aviles.

Dkt 1 at (60.

“Official policy establishes culpability, and can arise in

various forms. It usually exists in the form of written policy

statements, ordinances, or regulations, but it may also

arise in the form of a widespread practice that is ‘so

common and well-settled as to constitute a custom that

fairly represents municipal policy.” Peterson v City of Fort

Worth, 588 F3d 838, 847 (5th Cir 2009), quoting Piotrowski,

237 F3d at 579 Gnternal citation omitted). As to custom,

then, proof of a pattern of conduct is typically necessary.

And that “requires ‘sufficiently numerous prior incidents,’

as opposed to ‘isolated instances.” Peterson, 588 at 851,

quoting McConney v City of Houston, 863 F2d 1180, 1184

(5th Cir 1989).

The Fifth Circuit has found that neither twenty-seven

instances of excessive force, nor eleven instances of

warrantless entry, were sufficient to establish a pattern of

constitutional violations. Fuentes v Nueces County, Texas,

689 Fed Appx 775, 778 (5th Cir 2017), citing Peterson,

588 F3d at 850-852, and Pineda v City of Houston, 291 F3d

325, 329 (5th Cir 2002); see also Chavez v Alvarado,

550 F Supp 3d 4389, 457 (SD Tex 2021) (compiling cases and

finding two instances of excessive force insufficient to show

pattern). And in Carnaby v City of Houston, the Fifth

Circuit held, “Two reports over a period of four years, in a

city the size of Houston, do not constitute a pattern.”

636 F3d 183, 190 (5th Cir 2011).

But the question here isn’t simply as to instances of

excessive force alleged against Saldivar or even occurring

across the entirety of the City’s police department. Instead,

the alleged general custom and practice is with respect to

the City protecting officers who allegedly use excessive

force. Aviles appears to approach the issue with only

instances of excessive force in mind, and even then fails to

mount evidence of any broader practice beyond Saldivar

himself. For example, see Dkt 52 at 25 (arguing “failure to

discipline” Saldivar and “willingness to protect” him). But

nothing is submitted to suggest that his general theory of

protection occurred with such frequency as to constitute a

custom and practice. The motion will thus be granted on

that basis.

Even assuming that the inquiry is appropriately

focused solely on conduct by Saldivar, the City convincingly

argues that there simply aren't enough incidents to

establish a custom or practice here. Plaintiff alleges only

three instances from 2018 through 2021. Dkts 1 at 442

(shooting of Aviles), 28 (shooting of Schenk) & 50 at 7

(shooting of Ramirez). Nothing in the allegations suggests

that the Ramirez incident is even fairly characterized as a

clear use of excessive force, given Saldivar’s apparent

action and belief in the presence of a gun (even if it was

later determined to be a pellet gun). See Dkt 53 at 5-9. But

even including that instance, a showing of three instances

of excessive force over the same number of years isn’t

“sufficiently numerous” as a matter of law, especially when

arrayed against Saldivar’s career of twenty years with the

City. See Dkt 40 at 10 (as to career); Peterson, 588 F3d at

851 (granting summary judgment in favor of defendant in

case involving twenty-seven instances); cf Ramirez v

Escajeda, 298 F Supp 3d 933, 943 (WD Tex 2018) (denying

motion to dismiss with respect to showing of eight pleaded

instances).

Aviles cites Brown v Bryan County for the proposition

that, “under certain circumstances, § 1988 liability can

attach for a single decision not to train an individual officer

even where there has been no pattern of previous

constitutional violations.” Dkt 52 at 19, citing 219 F3d 450,

459 (5th Cir 2000). But the Fifth Circuit has repeatedly

declined to extend this “single incident exception” and

describes it as “narrow.” Burge v St Tammany Parish,

336 F3d 368, 373 (5th Cir 2008); see also Piotrowski,

237 F3d at 582 (stating “it is nearly impossible to impute

lax disciplinary policy to the City without showing a

pattern of abuses that transcends the error made in a

single case”). And in any event, in Brown, the Fifth Circuit

found a failure to train where the offending officer had no

law enforcement background, no training, little super-

vision, and a history of questionable “takedown” arrests

during a short tenure. 219 F3d 455—456; see also Dkt 30 at

9. Those facts aren’t present here.

Summary judgment will be entered in favor of the City

as to this claim.

c. Policymaker

In order to prevail on a Monell claim, a plaintiff must

show (i) an official policy (i) promulgated by a municipal

policymaker (iu) that was the “moving force” behind the

violation of a constitutional right. Piotrowski v City of

Houston, 237 F8d 567, 578 (5th Cir 2001) (citations

omitted). Aviles seeks summary judgment that Bruegger

was a municipal policymaker. Dkt 47 at 18.

The Fifth Circuit holds that determination of whether

someone is an “official policymaker” 1s an issue of state law.

Beattie v Madison County School District, 254 F3d 595, 602

(5th Cir 2001), citing Brady v Fort Bend County, 145 F3d

691, 698 (5th Cir 1998). It’s curious, then, that the City

doesn’t itself seek affirmative summary judgment in its

own motion as to who the City’s policymaker is in this

regard. See Dkt 40; cf Covington v City of Madisonville,

Texas, 2022 WL 1910141, *7 (SD Tex), aff'd, 2023 WL

5346375 (5th Cir), cert denied, 144 S Ct 570 (2024)

(granting defendant summary judgment upon affirmative

motion, finding contrary evidence of “discretionary or

decision-making authority” insufficient to create material

issue of disputed fact). Even so, in its response to the

motion for summary judgment by Aviles, the City flatly

argues that the classification of Bruegger as a City

policymaker is improper because his authority is limited by

City Council oversight. Dkts 50 at 12-17 & 53 at 9-12. It

also sponsors a May 2024 declaration by Bruegger wherein

he declares that he isn’t a policymaker. Dkt 40-1 at 4-5.

To the contrary, Aviles submits excerpts from

Bruegger’s deposition in this action, where he testified that

his role involved “setting the policy” of the City’s police

force and making the “final decision” when it came to

discipline, and that he was the “only one” who could take

disciplinary action against an officer. Dkt 47-3 at 16-18.

His after-the-fact declaration thus isn’t well-received,

given that the Fifth Circuit “does not allow a party to defeat

a motion for summary judgment using an affidavit that

impeaches, without explanation, sworn testimony.” SWS

Erectors, Inc v Infax, Inc, 72 F3d 489, 495 (5th Cir 1996).

That’s all the more true when it is conflicting, sworn

testimony from the same witness.

Complicating this quite a bit more is Fifth Circuit

precedent finding that, in some circumstances, Texas

police chiefs may be final policymakers for Monell

purposes. For example, see Garza v City of Donna, 922 F3d

626, 637 (5th Cir 2019); Backe v City of Galveston, Texas,

2 F Supp 3d 988, 1000-1001 (SD Tex 2014). Decision by the

Fifth Circuit in Zarnow v City of Wichita Falls, Texas goes

to the heart of this issue. 614 F3d 161 (5th Cir 2010). It

there held, “An official may be a policymaker even if a

separate governing body retains some powers.” Id at 168.

It also observed that the “governing body” of a city in

situations where “it may, by its conduct or practice,

encourage or acknowledge the agent in a policymaking

role.” Id at 167, quoting Bennett v City of Slidell, 728 F2d

762, 769 (5th Cir 1984, en banc). And specifically in that

case, the Fifth Circuit determined that an official may be a

policymaker even if the municipality can limit or revoke

the officials authority, and that the municipality’s

“administrative review must be precise in order to attach

the presumption against policymaking.” Id at 168, citing

Beattie v Madison County School District, 254 F3d 595, 603

(5th Cir 2001).

Pasadena City Ordinance 30-4 states, “It shall be the

duty of the chief of police to supervise and direct the police

officers of his department in the conduct of their offices and

performance of their duties as such, and each police officer

is specially charged with the duty of following the

instructions of and cooperating with the chief of police.”

Dkt 40-13 (emphasis added). Aviles in essence argues that

this supervisory power over other police officers qualifies

Chief Bruegger as a policymaker—like in Zarnow, where

the chief of police was given the authority to control and

direct the police department. Dkt 54 at 2, citing Zarnow,

614 F3d at 168. But unlike Zarnow, Aviles doesn’t provide

examples of “General Orders” promulgated by the chief of

police to control internal policy of the police department.

See 614 F3d at 168. Even so, as noted above, Bruegger in

his deposition testified that, in fact, he set policy for the

City’s police force and was the “only one” who could take

disciplinary action against an officer. Dkt 47-3 at 16-18.

Whether Bruegger did, or could, promulgate internal

policy is a critical question that isn’t sufficiently addressed

by the submissions made at this stage of the proceedings.

In practical terms, what this means for now is simply that

the motion by Aviles for summary judgment that Bruegger

10

was the policymaker must be denied. The unusual briefing

posture beyond that—with the City not seeking affirmative

relief on this issue in its own motion, while seeming to

assert entitlement to such relief in its response to the

Aviles motion—doesn’t lend itself to resolution on

summary judgment.

This doesn’t mean that the issue necessarily will go to

the jury. The Fifth Circuit observes that “the identity of the

policymaker is a question of law, not of fact—specifically a

question of state law. Groden v City of Dallas, Texas,

826 F3d 280, 284 (5th Cir 2016), citing City of St Louis uv

Praprotnik, 485 US 112, 124 (1988). As such, the parties

must present this issue again with their pretrial filings,

with clear briefing as to any affirmative request for relief.

And in this regard, the parties must submit their positions,

with supporting evidence, as to who exactly each submits

is the municipal policymaker in this respect. It will then be

addressed at the final pretrial conference.

The motion by Aviles for summary judgment that Chief

of Police Joshua Bruegger is a policymaker for the City will

be denied.

4. Conclusion

The motion for summary judgment by Defendant City

of Pasadena is GRANTED IN PART and DENIED IN PART.

It is GRANTED as to the claim alleging that it has a

custom or policy of protecting officers that use excessive

force. That claim is DISMISSED.

The motion is DENIED in all other respects. Dkt 40.

The motion for summary judgment by Plaintiff Randy

Aviles is DENIED. Dkt 47.

11

SO ORDERED.

Signed on __ August 19, 2024 | at Houston, Texas.

Che 0 rade =

Hon. Charles Eskridg

United States District Judge

12