* Pursuant to 5 T H C IR

. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

June 3, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-10843

Summary Calendar

BERNARDO LOPEZ-RODRIGUEZ; MARIA MAGDELANA RODRIGUEZ;

SUSIE RESENDEZ, Individually, as representative of

the estate of David Rodriguez, Sr., and as next friend of

David Rodriguez, Jr., and Don Leon Rodriguez, minor children,

Plaintiffs - Appellants,

versus

CITY OF LEVELLAND, TEXAS; ET AL.,

Defendants,

CITY OF LEVELLAND, TEXAS; TED HOLDER, Levelland Chief of

Police, Individually and In His Official Capacity; RICK

WOOTEN, Individually and In His Official Capacity; FRED

GONZALES, Individually and In His Official Capacity,

Defendants - Appellees.

-------------------- Appeal from the United States District Court

for the Northern District of Texas

(5:02-CV-73-C)

--------------------

Before JOLLY, WIENER, and PICKERING, Circuit Judges.

PER CURIAM: *

Plaintiffs-Appellants, the parents and spouse of David

Rodriguez, Sr. (“Rodriguez”), individually, as representative of2

Rodriguez’s estate, and as next friend of Rodrigu ez’s minor

children (collectively, the “Plaintiffs”) appeal the judgment

entered pursuant to F ED

. R. C IV

. P. 54(b) tha t granted summary

judgment and dismissed the Plaintiffs’ claims asserted against the

City of Levelland, Texas, (the “City”) under 42 U.S.C. § 1983 and

the Texas Tort Cl aims Act. Rodriguez died after being shot by a

City police officer during the pursuit of Rodriguez’s vehicle.

1. Standard of Review

We review the grant of summary judgment de novo and consider

the evidence and inferences to be drawn from the evidence in the

light most favorable to the nonmovant. F raire v. City of

Arlington , 957 F.2d 1268, 1273 (5th Cir. 1992). Summary judgment

is proper if the pleadings and discovery on file “together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.’” Id. ; F ED

. R. C IV

. P. 56(c).

2. 42 U.S.C. § 1983 Claims

A municipality may be held liable under 42 U.S.C. § 1983 only

when an official policy or governmental custom causes the alleged

deprivation or violation. F raire v. City of Arlington

, 957 F.2d

1268, 1277 (5th Cir. 1992). A custom or policy is shown by

evidence of “a pattern of similar incidents in which citizens were

injured or endangered by intentional or negligent police misconduct

and/or that serious incompetence or mis behavior was general or

widespread through the police force.” Fraire , 957 F.2d at 1278.3

The Plaintiffs did not produce evi dence of a pattern or

custom. See id. The two prior incidents cited by the Plaintiffs

in which City police officers had shot at the tires of fleeing

vehicles are distinguishable from the inst ant case and do not

establish a pattern. The Plaintiffs did not show that a City

custom or policy concerning the use of force in the p ursuit of

fleeing vehicles was affirmatively linked t o the alleged

constitutional violation and was the moving force behind it. Id.

at 1281.

The Plaintiffs’ reliance on Grandstaff v. City of Borger

, 767

F.2d 161, 171 (5th Cir. 1985), is misplaced. We expressly limited

Grandstaff “to the extraordinary facts of the case,” declaring that

our opinion “can be applied only to equally extreme factual

situations.” S nyder v. Trepagnier

, 142 F.3d 791, 797-98 (5th Cir.

1998). We will not infer an unconstitutional custom or policy from

a municipality’s failure to discipline an officer for a single

incident. See Fraire , 957 F.2d at 1278-79.

Neither did the Plaintiffs produc e evidence to establish

deliberate indifference on the part of the City with respect to the

training of its officers. See City of Canton v. Harris , 489 U.S.

378, 388 (1989); McClendon v. City of Columbia , 258 F.3d 432, 442

(5th Cir. 2001), reinstated in pertinent part by 305 F.3d 314, 319

(5th Cir. 2002) (en banc), cert. denied

, 537 U.S. 1232 (2003). The

evidence does not show that the City was on notice that its

training procedures were inadequate or that the City deliberately4

chose not to provide adequate training. S ee McClendon

, 258 F.3d at

442.

Evidence that a particular officer was unsatisfactorily

trained and proof that an injury could have been avoided if the

officer had been be tter trained is not sufficient to place

liability on a municipality. S nyder

, 142 F.3d a t 798. The

Plaintiffs did not provide evidence of a pattern of similar

incidents in which citizens were injured by the pursuit tactics of

City police. S ee id. Neither did the Plaintiffs provide e vidence

that th e City’s alleged inadequate training procedures caused

Rodriguez’s death. S ee id. at 799. The Plaintiffs also failed to

provide evidence to show that the need for training was “‘so

obvious, and the inadequacy so likely to result in the violation of

constitutional rights, that the p olicymakers of the [City] can

reasonably be said to have been deliberately indifferent to the

need.’” I d. at 798. As the Plaintiffs did not meet their

evidentiary burde n under F ED

. R. C IV

. P. 56, the part of the

district court’s judgment dismissing their § 1983 claims against

the City is AFFIRMED.

3. Texas Tort Claims Act Claims

Under the Texas Tort Claims Act (“TTCA”), a municipality may

be held liable “for personal injury or death caused by a condition

or use of tangible personal or real property under its control.”

Evans v. City of Marlin , 986 F.2d 104, 108 (5th Cir. 1993); T EX

.

C IV

. P RAC

. & R EM

. C ODE § 101.021, § 101.0215 (Vernon 1997). The TTCA5

does not apply to a claim that arises out of an intentional tort.

T EX

. C IV

. P RAC

. & R EM

. C ODE § 101.057(2). Texas law does not allow a

plaintiff to avoid the bar of governmental immunity by describing

essentially intentional conduct as an act of negligence. S ee

Hucker v. City of Beaumont

, 144 F. Supp. 2d 696, 708 (E.D. Tex.

2001). Our review is de novo , and we apply substantive Texas law.

Downey v. Denton County , 119 F.3d 381, 387 (5th Cir. 1997).

The Pl aintiffs alleged that Police Officer Gonzales was

negligent (1) in failing properly to aim his firearm at the tires

of Rodriguez’s vehicle, (2) in firing at Rodriguez when it was not

safe to do so, and (3) in failing to ensure that there was proper

space available to fire the gun. Officer Gonzales provided a sworn

statement that the fatal gunshot was fired accident ally into

Rodriguez’s car window and that he and Officer Wooten did not

intend to injure Rodriguez.

Under Texas law, there is no impediment to a proper

characterization of negligence whe n the facts may show that

officers in the course and scope of their duty improperly or

negligently used tangible personal property and caused an injury or

death. Hucker , 144 F. Supp. 2d at 708; see Texas Dep’t of Mental

Health and Mental Retardation v. Petty

, 848 S.W.2d 680, 684-85

(Tex. 1992). When viewed in the light most favorable to the

Plaintiffs, the evide nce would be sufficient to establish a

disputed issue of fact that precludes the grant of summary judgment

on the TTCA claims al leged against the City. S ee F ED

. R. C IV

.6

P. 56(c); Fraire , 957 F.2d at 1273. Accordingly, we vacate the

district cour t’s judgment to the extent that it dismissed the

Plaintiffs’ claims against the City under the TTCA and remand that

part of the case to the district court for proceedings consistent

with this opinion.

4. Disqualification of Defense Counsel

Finally, we do not consider the Plaintiffs’ appeal of the

district court’s order that denied the motion to disqualify defense

counsel. S ee Firestone Tire & Rubber Co. v. Risjord

, 449 U.S. 368,

379 (1981); Bader v. Atlantic Int’l

, 986 F.2d 912, 914-15 (5th Cir.

1993).

AFFIRMED IN PART; VACATED AND REMANDED IN PART.