Aviles v. Saldivar

1

RANDY AVILES, Plaintiff, v. RIGOBERTO R. SALDIVAR and CITY OF PASADENA, TX, Defendants.

Civil Action No. 4:22-cv-03571

United States District Court, S.D. Texas, Houston Division

August 24, 2023

ORDER DENYING MOTION TO DISMISS

HON CHARLES ESKRIDGEL, UNITED STATES DISTRICT JUDGE.

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 U.S. 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 walkthrough 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 Department 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 U.S. 662, 678 (2009), quoting Bell Atlantic Corp v Twombly, 550 U.S. 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 F.3d 397, 401 (5th Cir 2007), quoting Twombly, 550 U.S. at 555.

A complaint must therefore contain “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. 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 U.S. at 678, citing Twombly, 550 U.S. 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 U.S. 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 F.3d 724, 735 (5th Cir 2019), quoting Campbell v Wells Fargo Bank NA, 781 F.2d 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 F.3d 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 F.3d 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 U.S. 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 U.S. 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 F.3d 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....