                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS           June 3, 2004
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           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 of


     *
        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this opinion should not be published and is not precedent except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.
Rodriguez’s    estate,   and    as    next   friend   of    Rodriguez’s     minor

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

entered pursuant to FED. R. CIV. P. 54(b) that 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 Claims 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.         Fraire    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.; FED. R. CIV. 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.        Fraire 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 misbehavior was general or

widespread through the police force.”           Fraire, 957 F.2d at 1278.

                                        2
     The Plaintiffs did not produce evidence 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 instant 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 pursuit of

fleeing     vehicles    was     affirmatively       linked    to   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.”    Snyder 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 produce 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 deliberately

                                        3
chose not to provide adequate training. See 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     better    trained   is   not       sufficient   to   place

liability on a municipality.              Snyder, 142 F.3d at 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.      See id.       Neither did the Plaintiffs provide evidence

that the City’s alleged inadequate training procedures caused

Rodriguez’s death.         See 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 policymakers of the [City] can

reasonably be said to have been deliberately indifferent to the

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

evidentiary burden under              FED. R. CIV. 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); TEX.

CIV. PRAC. & REM. CODE § 101.021, § 101.0215 (Vernon 1997).                   The TTCA

                                         4
does not apply to a claim that arises out of an intentional tort.

TEX. CIV. PRAC. & REM. CODE § 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.                              See

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   Plaintiffs      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 accidentally 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       when      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    evidence   would      be     sufficient       to    establish     a

disputed issue of fact that precludes the grant of summary judgment

on the TTCA claims alleged against the City.                        See FED. R. CIV.

                                        5
P. 56(c); Fraire, 957 F.2d at 1273.      Accordingly, we vacate the

district court’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. See 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.




                                6
