     Case: 09-10412     Document: 00511012393          Page: 1    Date Filed: 01/26/2010




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

                                                  FILED
                                                                          January 26, 2010

                                     No. 09-10412                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



LUZ M. REYES, Individually and as Representative of the Estate of JOSE
PACHECO CEBALLOS, Deceased, and as Representative of the Estate of
Carmen Ceballos, Deceased, and as Guardian of A. R., Minor Child,

                                                   Plaintiff - Appellant
v.

THE CITY OF PLAINVIEW,

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 5:08-CV-56


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Jose Ceballos, Jr., was shot and killed by Officer William Bridgwater of the
City of Plainview’s police department during an incident at Ceballos’s home. His
family (the “Ceballos Family”) sued Bridgwater; his supervisor, Jose Porras; the




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-10412

Chief of Police, William Mull; and the City of Plainview 1 under 42 U.S.C. § 1983
and certain state law theories. The district court granted summary judgment
to the City and dismissed the state law claims on their merits. The Ceballos
Family appealed.2 We AFFIRM.
                                          I. Facts
       On September 11, 2006, Luz Maria Reyes telephoned 911 and reported
that her brothers, Ceballos and Andres Pacheco, were fighting at the apartment
in Plainview, Texas, where their mother, Carmen Ceballos, lived, and then hung
up on the operator. Bridgwater responded to the call, and Porras arrived shortly
thereafter. The parties dispute the sequence of events; suffice it to say that
Bridgwater broke down the door when Ceballos declined to open it. Ceballos
moved into the entryway holding a kitchen knife in one hand and a cigarette in
the other. Bridgwater told Ceballos to drop the knife. Bridgwater contends that
Ceballos stepped towards him with the knife raised, while the Ceballos Family
contends that he simply swayed back and forth while holding the knife at his
side. It is undisputed that Bridgwater fatally shot Ceballos.
       The Ceballos Family sued for violation of Ceballos’s constitutional rights
under 42 U.S.C. § 1983 and asserted a number of additional state tort
claims—gross negligence, assault, wrongful death, intentional infliction of


       1
         The appeal involving the disposition of the case against the individual defendants has
proceeded separately under Case No. 09-10076 which was recently decided. Reyes v.
Bridgwater, 09-10076, 2010 LEXIS App. 1502 (5th Cir. January 22, 2010)(unpublished), The
Ceballos Family urged us to hold this decision pending our decision in that case. Because we
conclude that the case against the City of Plainview fails even if the case against some or all
of the individual defendants were reversed, we determined not to hold this appeal pending
resolution of that one. In the meantime, that case was decided.
       2
         Appellants’ counsel has notified the court that Carmen Ceballos, one of the original
plaintiffs-appellants, died during the pendency of this appeal; the remaining appellant has
accordingly moved for substitution of parties pursuant to Federal Rule of Appellate Procedure
43(a)(1). The City of Plainview filed no response or objection to the motion within the time
specified by Federal Rule of Appellate Procedure 27(a)(3)(A). We therefore deem the motion
unopposed and GRANT the appellant’s motion to substitute parties.

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emotional distress, failure to adequately supervise, failure to discipline, and
failure to train.      The district court granted the City’s motion for summary
judgment, and this appeal followed.3
                                  II. Standard of Review
       We review a grant of summary judgment de novo. N. Am. Specialty Ins.
Co. v. Royal Surplus Lines Ins. Co., 541 F.3d 552, 555 (5th Cir. 2008). Summary
judgment is proper “if the pleadings, the discovery and disclosure materials on
file, and any affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law.” F ED. R.
C IV. P. 56(c). A genuine issue of material fact exists when the evidence is such
that a reasonable jury could return a verdict for the non-movant, Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); that is, “[a]n issue is material if its
resolution could affect the outcome of the action.” Wyatt v. Hunt Plywood Co.,
297 F.3d 405, 409 (5th Cir. 2002).              When reviewing a grant of summary
judgment, we view all facts and evidence in the light most favorable to the non-
moving party. United Fire & Cas. Co. v. Hixson Bros., 453 F.3d 283, 285 (5th
Cir. 2006). In doing so, we “refrain from making credibility determinations or
weighing the evidence.” Nationwide Mut. Ins. Co. v. Lake Caroline, Inc., 515
F.3d 414, 418 (5th Cir. 2008). However, to avoid summary judgment, the non-
movant must go beyond the pleadings and come forward with specific facts


       3
         The district court also granted the City’s motion to dismiss the Ceballos Family’s state
law claims against the City for failure to state a claim upon which relief could be granted. The
district court explained that, under section 101.025 of the Texas Civil Practice and Remedies
Code, the State of Texas has not waived sovereign immunity for intentional acts and that all
of the Ceballos Family’s claims against the City involved intentional acts. While the Ceballos
Family purports to appeal that determination, the lone argument advanced on appeal is that
reversal of the district court’s finding that no constitutional violation occurred would
necessitate revisiting this judgment. We fail to see, however, in what respect the district
court’s finding that the City cannot be held liable for intentional conduct is conceivably
predicated on the determination that no constitutional violation occurred. In any event, we
did not reverse the holding on the federal claim. We thus AFFIRM the dismissal of the state
claims.

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indicating a genuine issue for trial. Piazza’s Seafood World, LLC v. Odom, 448
F.3d 744, 752 (5th Cir. 2006). We may “affirm a grant of summary judgment on
any grounds supported by the record and presented to the [district] court.”
Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir. 2008).
                                  III. Discussion
      Municipal liability under § 1983 may not be predicated on respondeat
superior.   Pitrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001).
Rather, the plaintiff must demonstrate: “(1) that the municipal employee
violated [the decedent’s] clearly established constitutional rights with subjective
deliberate indifference; and (2) that this violation resulted from a municipal
policy or custom adopted and maintained with objective deliberate indifference.”
Olabisiomotosho v. City of Houston, 185 F.3d 521, 528–29 (5th Cir. 1999).
Under the second prong, the plaintiff must identify a policymaker and show that
an official policy is the “moving force” behind the municipal employee’s allegedly
unconstitutional act.    Pitrowski, 237 F.3d at 578.       The objective deliberate
indifference standard “considers not only what the policymaker actually knew,
but what he should have known, given the facts and circumstances surrounding
the official policy and its impact on the [decedent’s] rights.” Lawson v. Dallas
County, 286 F.3d 257, 264 (5th Cir. 2002); see Burge v. St. Tammany Parish, 336
F.3d 363, 370 (5th Cir. 2003) (“Knowledge on the part of a policymaker, [either
actual or constructive,] that a constitutional violation will most likely result from
a given official custom or policy is a sine qua non of municipal liability under
section 1983.”).
      The Ceballos Family has failed to produce summary judgment evidence
that Police Chief Mull—the only alleged policymaker identified—was an official
policymaker for the City.       His acknowledgment of responsibility for his
department does not convert him into the City’s policymaker. See Jett v. Dallas
Indep. Sch. Dist., 7 F.3d 1241, 1246–48 (5th Cir. 1993) (explaining the

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distinction between decisionmaking authority and final policymaking authority);
Gros v. City of Grand Prairie, 181 F.3d 613, 616–17 & n.2 (5th Cir. 1999) (noting
that whether a police chief is the policymaker in a given city is a fact issue).
More importantly, the Ceballos Family has failed to identify a policy or custom
that is directly linked to the alleged violation here. The only argument made is
that the City had knowledge of some reckless driving on Bridgwater’s part.
Even if that were true, it does not show that the City knew that Bridgwater
would use excessive force, nor does it show that there was a policy or custom
that would “most likely” lead to the constitutional violation allegedly committed.
      Because the district court correctly determined in its alternative grounds
for judgment that Ceballos Family failed to raise a material fact issue as to the
second prong for municipal liability, we need not reach the first prong. Thus, we
do not reach the Ceballos Family’s argument that the district court erred in
concluding that the City has no liability because there was no constitutional
violation.
      AFFIRMED. SUBSTITUTION MOTION GRANTED.




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