     Case: 15-20476      Document: 00513541078         Page: 1    Date Filed: 06/09/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                                             Fifth Circuit

                                                                            FILED
                                                                          June 9, 2016
                                      No. 15-20476
                                                                         Lyle W. Cayce
                                                                              Clerk
ROSA RODRIGUEZ, Individually and as Representative of the Estate of
Omar Wilfredo Ventura, C.V., A.B.V., A.V.; ROLANDO VENTURA;
CRISTINA MARTINEZ; WILFREDO VENTURA,

               Plaintiffs - Appellants

v.

CITY OF HOUSTON,

               Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:12-CV-501


Before REAVLEY, HAYNES, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
       Rosa Rodriguez and several other members of Omar Ventura’s family
appeal the district court’s summary judgment for the City of Houston in this
42 U.S.C. § 1983 suit. We affirm.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 15-20476
                                        I.
      On the night of the relevant incident, Jose Coronado, a police officer with
the Houston Police Department, attended a gathering and consumed several
alcoholic drinks at a bar in Houston, Texas. Although Coronado was not on
duty or in uniform, he was carrying a firearm.
      When Coronado exited the bar, he observed a large fight in progress. He
attempted to intervene to protect an individual who was being violently
assaulted. Taking the evidence in the light most favorable to the Plaintiffs,
Omar and Rolando Ventura, who were involved in the fight, were attempting
to help the assault victim when Coronado punched Rolando. Rolando Ventura
asserts that at that point Coronado had not identified himself as a police officer
and that he had his weapon drawn. As Omar and Rolando were leaving, Omar
slightly raised his hands. Coronado then shot Omar, killing him. Coronado
shot Rolando in the arm after he reacted to the shooting. Coronado’s blood
alcohol content at the time of the shooting was 0.11%, legally intoxicated.
      Following the incident, the City of Houston conducted an investigation
into the shooting and found that Coronado’s use of force was justified.
However, the City also found that Coronado violated several City orders,
including General Order 300-28, which prohibits officers from exercising police
authority while under the influence of intoxicants; General Order 400-05,
which prohibits off-duty police officers from carrying a firearm while under the
influence of alcohol; and General Order 200-08, which prohibits conduct that
“tends to bring reproach, discredit, or embarrassment to the department.” The
City suspended Coronado for thirty days.
      Rodriguez, individually and as a representative of Omar Ventura’s
estate, along with several members of Omar Ventura’s family, sued the City,
and Coronado under 42 U.S.C. § 1983, and sued the bar where the fight
occurred under state law. The district court granted the City’s motion for
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                                 No. 15-20476
summary judgment because Plaintiffs could not establish § 1983 liability. The
Plaintiffs timely appealed after settling with Coronado and the bar.
                                       II.
                                       A.
      We review a grant of summary judgment de novo, applying the same
standard as the district court. Zarnow v. City of Wichita Falls, 614 F.3d 161,
166 (5th Cir. 2010). A district court should grant summary judgment “if the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When
reviewing a grant of summary judgment, we must take the evidence in the
light most favorable to the nonmoving party. Zarnow, 614 F.3d at 166.
                                       B.
      Plaintiffs argue that the City is liable under § 1983 for depriving Omar
Ventura of his constitutional rights. Specifically, Plaintiffs contend that the
City enforces official policies that led to the deprivation of Omar Ventura’s
constitutional rights and that the City ratified Coronado’s conduct by failing to
adequately punish him. A municipality is only liable under § 1983 for its own
acts. Connick v. Thompson, 563 U.S. 51, 60 (2011). Municipal liability under
§ 1983 thus requires “proof of three elements: a policymaker; an official policy;
and a violation of constitutional rights whose ‘moving force’ is the policy or
custom.” Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001). We
have defined policymaker as “one who takes the place of the governing body in
a designated area of city administration.” Webster v. City of Houston, 735 F.2d
838, 841 (5th Cir. 1984) (en banc).     An official policy is an official policy
statement or “[a] persistent, widespread practice of city officials or employees,
which, although not authorized by officially adopted and promulgated policy,
is so common and well settled as to constitute a custom that fairly represents
municipal policy.” Id. Finally, to satisfy the element of moving force, the
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                                  No. 15-20476
plaintiff must show a direct causal connection between the policy and the
constitutional deprivation and that the municipality adopted the policy with
deliberate indifference to the known or obvious fact that such a constitutional
deprivation would occur. Mason v. Lafayette City-Par. Consol. Gov’t, 806 F.3d
268, 280 (5th Cir. 2015).
                                       C.
      Plaintiffs contend that summary judgment for the City is inappropriate
because two of the City’s policies caused Omar Ventura’s constitutional
deprivations. First, Plaintiffs claim the City actively promoted General Order
200-08, which requires off-duty officers “to take prompt and effective police
action with respect to violations of laws and emergencies coming to their
attention or of which they have knowledge,” instead of General Orders 300-28
and 400-05, which prohibit off-duty officers from exercising police authority or
carrying a weapon while under the influence of alcohol. Second, Plaintiffs
claim that the department does not enforce General Order 400-05, instead
encouraging officers to carry a weapon at all times.
      General Order 200-08 is an official policy of the City, however, Plaintiffs
have not sufficiently shown a direct connection between this policy and Omar
Ventura’s alleged constitutional deprivation. Instead, this policy specifically
instructs that “[r]easonableness and sound judgment will dictate the actions of
all employees along with the boundaries of authority provided by federal, state
and local law, and the policies and procedures of the Houston Police
Department.” Following the City’s investigation of the incident, the City found
that Coronado violated this policy. Moreover, Plaintiffs incorrectly argue that
this policy is in direct conflict with Order 300-28, which prohibits officers from
exercising police action while under the influence of intoxication. Plaintiffs
overlook Order 200-08’s requirement that officers follow all policies and
procedures of the City when acting off-duty. The record is clear that the City’s
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                                    No. 15-20476
policies do not encourage officers to exercise police action while under the
influence of alcohol, and as a result, Plaintiffs cannot show that the City
adopted Order 200-08 with deliberate indifference to officers exercising police
action under the influence of alcohol. See Mason, 806 F.3d at 280.
      Plaintiffs also contend that despite Order 400-05, which they concede
prohibits officers from carrying a firearm while under the influence of alcohol,
the City has a custom which encourages officers to carry their guns at all times.
However, Plaintiffs have not alleged a policymaker responsible for adopting or
knowingly enforcing this custom. Instead, they merely point to Coronado’s
belief that he could carry his firearm while drinking. 1 Additionally, Plaintiffs
have not shown that this custom was so widespread and persistent that it
should be attributed to the City. See Webster, 735 F.2d at 841. Instead,
Plaintiffs simply provide conclusory statements alleging a “city-sanctioned
custom” of encouraging officers to carry their firearms. There is no genuine
dispute of material fact whether the City’s official policies directly caused
Omar Ventura’s constitutional deprivation.
                                           D.
      Plaintiffs also argue that summary judgment is inappropriate because
the City ratified Coronado’s conduct by suspending him for only thirty days
and by “approv[ing] of its officers exercising police authority while intoxicated.”
(Appellant’s Br. at 25). Our precedent limits municipal liability on a theory of
ratification to “extreme factual situations.” Peterson v. City of Fort Worth, 588
F.3d 838, 848 (5th Cir. 2009). As we explained in Peterson, a showing of such
extreme situations requires more than a showing that the City failed to
adequately punish the offending officer for illegal conduct. Id. at 848 & n.2.


      1 Executive Assistant Chief Kirk Munden’s testimony suggesting that it is sometimes
appropriate for an officer to intervene while acting under the influence does not include
reference to an officer carrying a firearm while under the influence.
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                                       No. 15-20476
Moreover, in this case, the City actually conducted an investigation, found that
Coronado violated several municipal orders, and suspended him. In addition,
Plaintiffs have not provided evidence suggesting a “culture of recklessness.”
See Snyder v. Trepagnier, 142 F.3d 791, 798 (5th Cir. 1998). 2 The evidence is
insufficient to establish municipal liability under the theory that the City
ratified Coronado’s conduct.
                                             III.
       Because Plaintiffs cannot establish municipal liability, we affirm the
district court’s grant of summary judgment for the City.




       2  Plaintiff’s presentation of an expert report roughly comparing the City’s percentage
of sustaining complaints of excessive force to other municipalities does not establish a culture
of recklessness.
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