     Case: 09-10076     Document: 00511011019          Page: 1    Date Filed: 01/22/2010




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

                                                  FILED
                                                                          January 22, 2010

                                       No. 09-10076                    Charles R. Fulbruge III
                                                                               Clerk

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

                                                   Plaintiffs - Appellants
v.

WILLIAM BRIDGWATER; JOSE PORRAS; WILLIAM MULL, Chief of
Police,

                                                   Defendants - Appellees




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


Before KING, GARZA, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:*
        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”)1 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
        1
        We GRANT the plaintiffs-appellants’ unopposed motion to substitute parties in this
matter pursuant to Federal Rule of Appellate Procedure 43.
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Chief of Police; and the City of Plainview 2 under 42 U.S.C. § 1983 and certain
state law theories.          The district court granted summary judgment to the
individual defendants, and the Ceballos Family appeals. For the reasons set
forth below, we REVERSE the summary judgment as to Bridgwater on the
§ 1983 claim and REMAND that portion and otherwise AFFIRM the district
court’s judgment.
                                            I. Facts
          On September 11, 2006, Luz Maria Reyes telephoned 911 and reported
that her brothers, Andres Pacheco and Ceballos, were fighting at the apartment
in Plainview, Texas, where their mother, Carmen Ceballos (“Mrs. Ceballos”),
lived, and then hung up on the operator. Responding to that call, Bridgwater
arrived at the apartment and found Reyes and Pacheco outside the door to the
apartment and the door closed. Reyes and Pacheco told Bridgwater that there
was not a fight in the apartment and that Ceballos and their mother were inside.
          Bridgwater then knocked on the door, announced the presence of police,
and asked that the door be opened. The door remained closed. Bridgwater then
requested the assistance of Porras. Ceballos looked through a window adjacent
to the door, and Bridgwater signaled for him to open the door.                       Ceballos
retreated into the apartment and did not open the door. Someone screamed from
inside the apartment,3 and Bridgwater then instructed Pacheco and Reyes to
step back from the door and kicked the door open. Porras arrived moments
afterward, and both officers drew their weapons as they looked into the
entryway.




          2
        The appeal involving the disposition of the case against City of Plainview has
proceeded separately under Case No. 09-10412 and is not before us here.
          3
              The Ceballos Family disputes this fact, but points to no contrary evidence in the
record.

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      Ceballos moved into the entryway holding a kitchen knife in one hand and
a cigarette in the other.        Mrs. Ceballos was also inside the apartment.
Bridgwater ordered Ceballos to get down and to put down the knife in English;
Porras repeated the command in Spanish.               Both officers repeated the
instruction, in both languages, multiple times. Ceballos did not comply and told
the officers to leave.
      It is undisputed that Ceballos next threw down his cigarette, that
Bridgwater twice said, “Don’t do it,” and that Bridgwater fired one shot at
Ceballos, which struck him in the chest and ultimately killed him. As to the
further details of the event, the testimony of Reyes and Mrs. Ceballos conflicts
with that given by the police officers. The import of those conflicts is the central
issue presented by this appeal.
      Bridgwater testified that, just before the shooting, Ceballos suddenly
appeared more aggressive, threw his cigarette butt at the officers, stepped
forward toward the officers, and raised the knife he was holding. Reyes and
Mrs. Ceballos, on the other hand, testified that Ceballos flicked his cigarette butt
nonaggressively, did not step forward towards the officers (instead, that he was
swaying side to side), and did not raise the knife. Bridgwater testified that, but
for Ceballos’s action of stepping forward and raising the knife—actions
Ceballos’s family members say did not occur—he would not have shot Ceballos.
      The Ceballos Family sued for violation of Ceballos’ 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
emotional distress, failure to adequately supervise, failure to discipline, and
failure to train. The individual defendants asserted, among other defenses, a
defense of qualified immunity as to the federal claims and moved for summary
judgment on that basis. The individual defendants also asserted a statutory
basis for dismissal for failure to state a claim as to the state law causes of action.

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The district court granted the individual defendants’ motions for summary
judgment and dismissal and entered a Rule 54(b) final judgment as to the
individual defendants only. This appeal followed.
                              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).
      The doctrine of qualified immunity provides immunity from suit under
§ 1983 to government officials provided that “their conduct does not violate
clearly established statutory or constitutional law of which a reasonable person
would have known.” Goodman v. Harris County, 571 F.3d 388, 395 (5th Cir.
2009) (quoting Wallace v. County of Comal, 400 F.3d 284, 289 (5th Cir. 2005));
see also Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (“The entitlement [to
qualified immunity] is an immunity from suit rather than a mere defense to
liability . . . .”). At the summary judgment stage, therefore, “[w]hen a defendant
pleads qualified immunity as an affirmative defense . . . , a court must decide (1)

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whether the facts alleged or shown by the plaintiff ma[k]e out a violation of a
constitutional right, and (2) whether that right was ‘clearly established’ at the
time of the defendant’s alleged misconduct.” Ontiveros v. City of Rosenberg, 564
F.3d 379, 382 (5th Cir. 2009). The absence of a genuine issue of material fact on
either element means that the defendant is entitled to summary judgment.4 “To
negate a defense of qualified immunity and avoid summary judgment, the
plaintiff need not present ‘absolute proof,’ but must offer more than ‘mere
allegations.’” Id. (quoting Reese v. Anderson, 926 F.2d 494, 499 (5th Cir. 1991)).
       As noted above, several facts are disputed. The first question, therefore,
is whether any of those facts are material, that is, whether they change the
outcome of the qualified immunity analysis. As this court in Goodson v. City of
Corpus Christi framed the inquiry, “summary judgment is inappropriate unless
plaintiff’s version of the violations does not implicate clearly established law.”
202 F.3d 730, 739 (5th Cir. 2000).
                                       III. Discussion
       A. Bridgwater
       If Bridgwater is entitled to qualified immunity even under Reyes’s version
of events, then summary judgment was appropriate because the dispute of facts
would be immaterial; otherwise, summary judgment was improperly granted.
See, e.g., Goodson, 202 F.3d at 739. Thus, this issue turns on whether there is
a material issue of fact.
       Bridgwater is entitled to qualified immunity at this procedural stage if,
under Reyes’s version of events, his use of deadly force was not “clearly excessive


       4
          After the district court’s decision, the Supreme Court reconsidered and made non-
mandatory its previous requirement that courts always evaluate whether the conduct as
shown at summary judgment in fact violated a constitutional right before evaluating whether
the right at issue was clearly established. See Pearson v. Callahan, 129 S. Ct. 808, 818 (2009)
(limiting Saucier v. Katz, 533 U.S. 194 (2001)). As Ontiveros notes, however, Pearson regarded
the Saucier methodology as “often beneficial,” and there is no error in the district court’s pre-
Pearson approach. See 564 F.3d at 382; see also Pearson, 129 S. Ct. at 818.

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or clearly unreasonable.” See Ramirez v. Knoulton, 542 F.3d 124, 128 (5th Cir.
2008) (internal punctuation omitted). Unlike some areas of constitutional law,
the question of when deadly force is appropriate – and the concomitant
conclusion that deadly force is or is not excessive – is well-established.
Tennessee v. Garner, 471 U.S. 1, 11–12, 21 (1985) (holding that deadly force is
not justified unless a suspect poses a risk of serious harm at that point in time).
We recently explained that the focus of the inquiry is “the act that led [the
officer] to discharge his weapon.” Manis v. Lawson, 585 F.3d 839, 845 (5th Cir.
2009). Here, the summary judgment standard requires that the court conclude
that there was, in essence, no such act, i.e., that the raised knife and threatening
step forward did not occur.
      Bridgwater argues that Ramirez supports his defense of qualified
immunity. Ramirez, however, is distinguishable in critical respects. In Ramirez,
police stopped a car driven by a suspect whom they knew to be armed. The
suspect refused to comply with the officers’ instructions and displayed a gun, but
never raised it or aimed it at the officers. Ten seconds after the suspect exited
the car, one officer fired at and seriously injured the man. 542 F.3d at 127. The
Fifth Circuit reversed a magistrate judge’s conclusion that the officers were not
entitled to qualified immunity, pointing out that the suspect “repeatedly refused
the officers’ commands and ultimately stood, armed, several yards from the
officers. [He] brought his hands together in what we believe could reasonably
be interpreted as a threatening gesture.” Id. at 131.
      There are two major distinctions between Ramirez and the present case.
First, under the facts presented by the Ceballos Family, Ceballos did not make
“a threatening gesture” (or motion) as did the suspect in Ramirez. Second,
Ceballos was armed with a knife, not a gun. The latter distinction limits the
usefulness of Ramirez’s exhortation that the court examine the situation from
the perspective of “the reasonable beliefs of officers standing yards away from

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a defiant, disturbed, and armed man.” See id. at 130. The immediacy of the risk
presented by a man armed with a kitchen knife at his side is far less than that
of a man armed with a gun: a gun can kill instantaneously at the distance that
the man shot by the officer in Ramirez stood, whereas Ceballos would have had
to first either advance toward Bridgwater or at least raise the knife before he
could inflict any harm. See Mace v. City of Palestine, 333 F.3d 621, 625 (5th Cir.
2003) (finding no constitutional violation in the situation of “an intoxicated,
violent and uncooperative individual who was wielding a sword within eight to
ten feet of several officers in a relatively confined space”; in that situation, the
decedent raised the sword and then was shot); see also Chappell v. City of
Cleveland, 585 F.3d 901, 910 (6th Cir. 2009) (qualified immunity granted where
teenager refused to drop knife and instead advanced on the officers, who were
in close proximity, with the knife raised). Ramirez does not control this case.
      The Supreme Court has required courts to be deferential to the choices
made by police officers in high-risk situations. See Graham v. Connor, 490 U.S.
386, 397 (1989). That deference, however, cannot extend so far as to ignore an
officer’s violation of the core, established rule that deadly force may not be used
“[w]here the suspect poses no immediate threat to the officer and no threat to
others.” Garner, 471 U.S. at 11. It violates the Fourth Amendment to use
deadly force absent such a threat.
      Here, there was no “immediate threat” as Garner requires. The evidence,
viewed as required in this procedural posture, does not support the district
court’s conclusion that there was no constitutional violation. At the summary
judgment stage, where the court must resolve conflicting evidence in favor of the
plaintiff, the court must assume that Ceballos stood, in his own home, with a
kitchen knife at this side, swaying slightly side to side, at a safe distance away
from the officers when Bridgwater opened fire. When Bridgwater arrived on the
scene, furthermore, he was responding to a 911 call reporting a “domestic

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disturbance with possible violence”; he was not, that is, anticipating making a
felony arrest, or even necessarily any arrest at all.5
       The facts that distinguish the present case from Mace and Ramirez
directly address the core issue: whether the officer reasonably perceived an
immediate threat.        In the language of Manis, there was no “act” to justify
shooting. If Bridgwater’s conduct was constitutionally permissible, then the
Fourth Amendment allows an officer to use deadly force against a person not
suspected of any serious crime who is in his own home—that the officers have
entered by breaking down the door—standing at a safe distance holding a
kitchen knife merely because he is holding the knife and does not put it down
despite police instruction to do so. Cf. Bacque v. Leger, 207 F. App’x 374, 376
(5th Cir. 2006) (unpublished)6 (finding evidence officers shot a suspect “while he
stood motionless with his knife at his side . . . at least ten to forty feet away”
sufficiently material to preclude any resolution as a matter of law). Such a
threat is by definition not “immediate” because the individual must still do
something—the Manis “act”—before the latent threat materializes into any risk
of harm. In that interval, there would have been time for Bridgwater to respond.
Under these facts and in this situation, Bridgwater’s use of deadly force absent
an immediate threat from Ceballos was a constitutional violation.




       5
          While we have of course found the use of deadly force constitutional in circumstances
that do not involve felony arrests, see, e.g., Manis, 585 F.3d at 842, the “severity of the crime
at issue” is among the factors that comprise the totality of the circumstances under Graham.
490 U.S. at 396; cf. Tarver v. City of Edna, 410 F.3d 745, 753 (5th Cir. 2005) (noting that the
“severity of the crime at issue was minimal” in an arrest over a custody dispute), Fogarty v.
Gallegos, 523 F.3d 1147, 1160 (10th Cir. 2008) (holding that “the amount of force should [be]
reduced accordingly” in proportion to the severity of the crime). The severity of the “crime”
here was likely at most a misdemeanor, and it is not even clear that Ceballos was the suspect.
       6
         Although unpublished opinions are not precedent, we cite this decision for its
persuasive value under similar facts.

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       A summary judgment based upon qualified immunity would still be
appropriate if the constitutional violation we have found was not contrary to
clearly established law. As Ontiveros explains, in evaluating this prong, “the
court must ask whether, at the time of the incident, the law clearly established
that such conduct would violate the [constitution]. This inquiry focuses . . . on
the specific circumstances of the incident—could an officer have reasonably
interpreted the law to conclude that the perceived threat posed by the suspect
was sufficient to justify deadly force?” 564 F.3d at 383 n.1 (citing Brosseau v.
Haugen, 543 U.S. 194, 199–200 (2004)). Indeed, unless the violation is “obvious,”
there must be relevant case law that “squarely governs” the situation with which
the officers were presented and gives “fair notice” that such conduct would
violate the law. Brosseau, 543 U.S. at 200 n.4, 201; see also Ontiveros, 564 F.3d
at 383 n.1 (“Excessive force incidents are highly fact-specific and without cases
squarely on point, officers receive the protection of qualified immunity.”). These
cases do not, however, require what Bridgwater contends – a case with exactly
the same facts finding a constitutional violation. Instead, they require that the
law clearly set parameters under which an objectively reasonable officer would
know what is permissible and what is excessive.7 See Kinney v. Weaver, 367 F.3d
337, 350 (5th Cir. 2004) (en banc) (“The central concept is that of ‘fair warning’:
The law can be clearly established ‘despite notable factual distinctions between
the precedents relied on and the cases then before the Court, so long as the prior
decisions gave reasonable warning that the conduct then at issue violated
constitutional rights.’” (quoting Hope v. Pelzer, 536 U.S. 730, 740 (2004))); see
also, e.g., Craighead v. Lee, 399 F.3d 954, 962 (8th Cir. 2005) (“[T]he issue is not



       7
         While the officer’s subjective mindset is not the question, it is noteworthy that even
Bridgwater is not contending he could simply kill Ceballos for holding a knife at his side and
not putting it down. Instead, he contends that Ceballos stepped forward and raised the knife
and that these actions justified the shooting.

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whether prior cases present facts substantially similar to the present case but
whether prior cases would have put a reasonable officer on notice that the use
of deadly force in these circumstances would violate [the Constitution].”)
      The cases on deadly force are clear: an officer cannot use deadly force
without an immediate serious threat to himself or others. Here, the facts are
unclear; was there such an immediate threat? Bridgwater’s version of the facts
would say “yes,” while the other witnesses’ versions would say “no.” The case
presented here is not one where the law is not clearly established but rather one
where the facts are not clearly established. As such, summary judgment was
improper.    Accordingly, we reverse the summary judgment in favor of
Bridgwater on qualified immunity grounds as to the § 1983 claims of the
Ceballos Family.
      B. Porras and Mull
      It is undisputed that Bridgwater’s supervisor, Porras, arrived at the scene
very shortly before the shooting. The Ceballos Family contends that Porras (1)
was directly involved in Bridgwater’s violation of Ceballos’ constitutional rights
because he failed to intervene, and (2) was, as Bridgwater’s supervisor,
deliberately indifferent to Ceballos’s rights. Mull’s involvement is even more
remote—he was not there, and he is accused simply of not doing enough to
prevent the situation by way of training and general supervision.
      As to the failure to intervene claim, we have held that “an officer who is
present at the scene and does not take reasonable measures to protect a suspect
from another officer’s use of excessive force may be liable under [§] 1983.” Hale
v. Townley, 45 F.3d 914, 919 (5th Cir. 1995).
      As to the failure to supervise and train claim, we note that § 1983 does not
provide for any form of vicarious or respondeat superior liability. See Estate of
Davis v. City of N. Richland Hills, 406 F.3d 375, 381 (5th Cir. 2005). Instead,
liability is proper when “(1) the supervisor either failed to supervise or train the

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subordinate official; (2) a causal link exists between the failure to train or
supervise and the violation of the plaintiff’s rights; and (3) the failure to train or
supervise amounts to deliberate indifference.” Id. (quoting Smith v. Brenoettsy,
158 F.3d 908, 911–12 (5th Cir. 1998)).
      Even viewing the evidence in the light most favorable to the Ceballos
Family, it does not appear that Porras “failed to supervise” Bridgwater, or, if he
did, that any constitutional violation followed from that failure. Neither did
Porras fail to intervene: the evidence, viewed in the light most favorable to the
Ceballos Family, does not show a course of action that Porras could have taken
to stop Bridgwater from firing. The situation was tense and developing, and
Bridgwater fired without warning. Even in Reyes’ version of events, it would
have been patently absurd for Porras to have ordered Bridgwater to put down
his gun. Less than two minutes transpired between Porras’s arrival and the
shooting. The Ceballos Family has not created a genuine issue of material fact
as to whether Porras had any opportunity to intervene in the situation and
prevent Bridgwater from firing, let alone that he acquiesced in the use of force.
      Further, the standard of “deliberate indifference” required for supervisor
liability to attach is a “stringent” one that is not met here. See Davis, 406 F.3d
at 381. As we explained in Davis, deliberate indifference
      requir[es] proof that a municipal actor disregarded a known or
      obvious consequence of his action. For an official to act with
      deliberate indifference, the official must both be aware of facts from
      which the inference could be drawn that a substantial risk of serious
      harm exists, and he must also draw the inference. Deliberate
      indifference requires a showing of more than negligence or even
      gross negligence. Actions and decisions by officials that are merely
      inept, erroneous, ineffective, or negligent do not amount to
      deliberate indifference and do not divest officials of qualified
      immunity.
Id. (quotations, footnotes, and citations omitted). There is no evidence that
would support a finding that Porras was actually aware that Bridgwater

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presented a risk that Porras chose to disregard. Indeed, there is virtually no
evidence that Porras knew of any adverse information regarding Bridgwater.
      We have previously rejected claims of deliberate indifference for
supervisors where other officers actually knew of the shooting officer’s
propensity for violence and had received citizen complaints regarding the officer.
See id. at 382. Indeed, the reason that the court previously rejected these
purported grounds for liability is that failure to supervise claims require
“demonstrat[ion] [of] a pattern of violations” that cannot normally be proven on
the basis of a single prior incident. See id. at 382–33 & n.34. There is no
suggestion of a pattern of violations here; the Ceballos Family points to one
dissimilar violent incident in Bridgwater’s previous employment (of which the
Ceballos Family acknowledges Porras was unaware) as well as traffic violations
by Bridgwater. Even drawing all inferences in favor of the Ceballos Family,
these claims against Porras fail. The district court’s grant of qualified immunity
to Porras was not error.
      Similarly, Mull’s actions do not rise to the level required by the demanding
standard of deliberate indifference. The Ceballos Family points to the following
evidence in opposition to summary judgment as to Mull: (1) Bridgwater’s traffic
violations, of which Mull knew; (2) Bridgwater’s alleged lack of training in
handling domestic disputes; and (3) Bridgwater’s prior violent incident while
employed as a corrections officer, which was not adequately explored during the
hiring process. This previous incident did not involve use of deadly force. Even
taken together, this evidence does not support a claim of deliberate indifference.
“To satisfy the deliberate indifference prong, a plaintiff usually must
demonstrate a pattern of violations and that the inadequacy of the training is
‘obvious and obviously likely to result in a constitutional violation.’” Cousin v.
Small, 325 F.3d 627, 637 (5th Cir. 2003) (quoting Thompson v. Upshur County,
245 F.3d 447, 459 (5th Cir. 2001)). The information known to Mull—principally

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Bridgwater’s traffic violations—could not have suggested that a constitutional
violation was likely to result. The district court did not err in granting Mull
summary judgment on qualified immunity.
       C. State Claims Against Bridgwater, Porras, and Mull
       The district court also dismissed all of the Ceballos Family’s state-law
causes of action against the individual defendants for failure to state a claim
pursuant to the Texas Tort Claims Act. Under section 101.106(e) of the Texas
Civil Practice and Remedies Code, “[i]f a suit is filed under this chapter [viz., the
Texas Tort Claims Act] against both a governmental unit and any of its
employees, the employees shall immediately be dismissed on the filing of a
motion by the governmental unit.”            Citing this section, the district court
dismissed the state-law claims filed against the individual defendants. “We
review a [Federal] Rule [of Civil Procedure] 12(b)(6) dismissal de novo. We must
accept all well-pleaded facts as true, and we review them in the light most
favorable to the plaintiff.” Piotrowski v. City of Houston, 51 F.3d 512, 514 (5th
Cir. 1995) (quotation omitted).
       Under section 101.106(e), a plaintiff must make an “irrevocable” election
to sue either the governmental unit or its employees, but not both, whenever suit
is brought against such entities. See Mission Consol. Indep. Sch. Dist. v. Garcia,
253 S.W.3d 653, 657 (Tex. 2008). It is irrelevant whether the claim is actually
allowed by the Texas Tort Claims Act or not.8 Garcia, 253 S.W.3d at 658–59.
The Ceballos Family argues that its claims against the various defendants are
made separately by each plaintiff and preclude application of section 101.106(e)
against each other; they attempt to distinguish Garcia on this basis. While the
Ceballos Family may be correct that if one plaintiff chooses to sue both a


       8
        Many of the Ceballos Family’s claims allege intentional torts. The limited waiver of
sovereign immunity provided by the Texas Tort Claims Act does not extend to intentional
torts. TEX . CIV . PRAC . & REM . CODE § 101.057(2).

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municipality and its employees that election should not inure to the detriment
of another plaintiff in the same matter, that is definitively not the case in this
litigation. Here, the Ceballos Family jointly sued and alleged the same causes
of action and the same facts against the same defendants. They filed a single
complaint through the same attorney. No one plaintiff has ever acted or been
treated separately from another at any point in the proceedings.            Garcia
therefore controls this case, and the district court did not err in dismissing these
claims against Bridgwater, Porras, and Mull.
                                 IV. Conclusion
      We thus, REVERSE and REMAND the summary judgment granted to
Bridgwater on the § 1983 claims and AFFIRM the remainder of the district
court’s judgment.




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