# Aviles v. Saldivar

> District Court, S.D. Texas · August 19, 2024

URL: https://www.frixlaw.com/law-library/cases/10677959

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** August 19, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

□ 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10677959. Public record. Not legal advice.