MEMORANDUM OPINION and ORDER

JOHN McBRYDE, U.S. District Judge

Came on for consideration the motion of defendant City of Pelican Bay ("City") for summary judgment. The court, having considered the motion, the response of plaintiffs, Donna Butler, individually, and as next friend for Gregory Harris and Johnny Griffin, minors, ("Butler") and Tony Ramsey, the reply, the record, the summary judgment evidence, and applicable authorities, finds that the motion should be granted in part.

I. Plaintiffs' Claims

On January 26, 2001, plaintiffs filed their original complaint in this action. On June 22, 2001, in response to the court's June 12, 2001, order, plaintiffs filed their first amended complaint.

Plaintiffs allege: On or about January 28, 2000, at approximately 12:32 a.m., the Azle police department attempted to stop Butler's vehicle for failing to maintain a single lane of traffic and for traveling forty-eight miles per hour in a forty-mile-per-hour zone. Butler did not stop and continued in the direction of the City, where she lived. Defendant Shawn Nance ("Nance"), a police officer employed by City, joined in the pursuit of Butler. Nance took over control of the pursuit and parked his vehicle across the roadway to prevent Butler from passing. Butler drove at a low rate of speed around Nance's vehicle. Nance rejoined the low-speed pursuit, again placing his vehicle across the roadway. That time, when Butler attempted to drive around Nance's vehicle at a low rate of speed, Nance opened fire on plaintiff's vehicle, firing four .40 caliber bullets into the cabin of Butler's car, striking her in the head and causing severe, life-threatening, and debilitating injuries. At the time Nance fired upon her, Butler's car was traveling at less than ten miles per hour and presented no danger to any person.

Plaintiffs further allege: In 1997, Nance received his license as a basic peace officer from Tarrant County Junior College. He was employed by the Azle police department. During the course of his recruit training program, Nance was consistently at or below the minimum acceptable standards established for police officers in that program. On May 8, 1998, Nance was terminated from the Azle police department. Approximately six months after being fired, Nance was hired at the neighboring City police department. City had a policy of employing officers without first performing background checks. Although records of Nance's performance at the Azle police department were available, City did not inspect them. Moreover, after hiring Nance, City did not provide him any further training. During his tenure, City received numerous complaints about Nance, but failed to take any corrective action.

Plaintiffs sue City under 42 U.S.C. § 1983 and under the Texas Tort Claims Act, TEX. Civ. PRAC. REM. CODE § 101.021, seeking damages arising out of Nance's shooting of Butler.

II. Grounds of the Motion

City seeks summary judgment as to all claims asserted against it. First, City says that all claims against it under Texas law are barred by sovereign immunity. Second, City says it does not have a custom or policy of inadequate hiring, or retaining of hired officers, or training of its officers that caused a constitutional violation of Butler's rights.

III. Objections to the Summary Judgment Evidence

Each side has filed objections to summary judgment evidence adduced by the other. Rather than striking evidence, however, the court will give the summary judgment evidence whatever weight it may deserve. Accordingly, the motions to strike will be denied.

IV. Applicable Summary Judgment Principles

A party is entitled to summary judgment on all or any part of a claim as to which there is no genuine issue of material fact and as to which the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The moving party has the initial burden of showing that there is no genuine issue of material fact. Anderson, 477 U.S. at 256. The movant may discharge this burden by pointing out the absence of evidence to support one or more essential elements of the non-moving party's claim "since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). Once the moving party has carried its burden under Rule 56(c), the non-moving party must do more than merely show that there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party opposing the motion may not rest on mere allegations or denials of pleading, but must set forth specific facts showing a genuine issue for trial. Anderson, 477 U.S. at 248, 256. To meet this burden, the nonmovant must "identify specific evidence in the record and articulate the `precise manner' in which that evidence support[s] [its] claim[s]." Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994). An issue is material only if its resolution could affect the outcome of the action. Anderson, 477 U.S. at 248. Unsupported allegations, conclusory in nature, are insufficient to defeat a proper motion for summary judgment. Simmons v. Lyons, 746 F.2d 265, 269 (5th Cir. 1984)

The standard for granting a summary judgment is the same as the standard for a directed verdict. Celotex Corp., 477 U.S. at 323. If the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.Matsushita, 475 U.S. at 597.

V. Undisputed Evidence

The following is an overview of evidence pertinent to the motion for summary judgment that is undisputed in the summary judgment record:

Shortly after midnight on January 28, 2000, an officer of the City of Azle police department observed Butler's vehicle traveling forty-eight miles per hour in a forty-mile-per-hour posted construction zone. He followed Butler's vehicle and saw that it was continually weaving back and forth in the right lane of traffic. Based on his observations, he concluded that Butler might be intoxicated. The officer turned on his emergency red and blue lights, but the vehicle failed to stop. Another Azle police officer joined in the chase. The fastest speed reached by Butler's vehicle was fifty-five miles per hour in a forty-five-mile-per-hour zone. Several minutes after the chase began, Butler's car entered the City's limits. Nance radioed that since the car had entered his city limits, he would take over the chase. Nance attempted to stop Butler's vehicle by blocking the street, but she pulled around him and continued traveling toward her home. Butler had been drinking during the hours prior to the chase and had an open beer between her legs. She decided that she would keep driving until she got home so that her car would not be towed. She anticipated being taken to jail if she stopped. Nance again got ahead of Butler and blocked her path with his car. Butler once again attempted to pass Nance's vehicle. At that time, Nance drew his service revolver and fired four shots into the passenger compartment of Butler's car. Nance intentionally fired the shots into the driver's side windshield area in an attempt to stop the car. Butler was seriously injured as a result.

Nance had been hired by City after being fired by Azle. Mickey Rogilho ("Rogilho") was the police chief of City who took Nance's application and initially interviewed him. Nance was also interviewed by Billy Heaton ("Heaton"), mayor of the City, who approved his hiring.

VI.

Law Applied to the Facts A. State Law Claims.

The Texas Tort Claims Act provides, in pertinent part:

A governmental unit in the state is liable for:

(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:

(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and

(B) the employee would be personally liable to the claimant according to Texas law; and

(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

TEX. Civ PRAC. REM. CODE § 101.021 (Vernon 1997). The Act further provides that the waiver of sovereign immunity does not apply to claims arising out of "assault, battery, false imprisonment, or any other intentional tort." Id., § 101.057.

In this case, plaintiffs have specifically pleaded that Butler knew who Nance was, because she had previously filed a complaint against him, and, on the night in question, she became increasingly concerned about what actions he might take against her. Pls.' First Am. Original Compl. at 4, ¶ 16. Plaintiffs further pleaded that Nance was "motivated by bad faith, malice, and a conscious disregard for and deliberate indifference to" Butler's rights. Id. at 37, ¶ 144. Butler testified that Nance intended to shoot her and there was no doubt in her mind that he shot her on purpose. City's App. at 15. And, Nance himself admitted, in a post-accident report, that he intentionally fired four rounds into the driver side windshield area of Butler's car in an attempt to stop the car. Id. at 146. Merely claiming that an act is negligent does not change its nature. Texas Dep't of Pub. Safety v. Petta, 44 S.W.2d 575, 580 (Tex. 2001); Eastland County Cooperative Dispatch v. Poyner, 64 S.W.3d 182, 199 (Tex.App.-Eastland 2001, pet. filed). Based on the summary judgment evidence, no reasonable juror could reach any conclusion but that Nance intended to injure Butler. Because the shooting was an intentional tort, there is no waiver of sovereign immunity.

To the extent that plaintiffs urge state law liability based on City's negligent entrustment of bullets, gun, and police car to Nance, such claims are not included in the Act's limited waiver of sovereign immunity. Texas Dep't of Crim. Justice v. Lone Star Gas Co., 978 S.W.2d 176, 178 (Tex.App.-Texarkana 1998, no pet.); Waldon v. City of Longview, 855 S.W.2d 875, 880 (Tex.App.-Tyler 1993, no writ) (citing Young v. City of Dimmitt, 787 S.W.2d 50, 51 (Tex. 1990)). As the Texas Supreme Court has held, misuse or nonuse of information does not give rise to a waiver of sovereign immunity.University of Tex. Med. Branch v. York, 871 S.W.2d 175, 179 (Tex. 1994). Thus, the City cannot be held liable for its alleged disregard of information about Nance's likelihood of using excessive force to harm a citizen.

B. Section 1983 Claims. 1. Hiring.

Plaintiffs admit that in order to prevail on their claim for improper hiring of Nance, they must show:

that a municipal decision reflects deliberate indifference to the risk that a violation of a particular constitutional or statutory right will follow the decision. Only where adequate scrutiny of an applicant's background would lead a reasonable policymaker to conclude that the plainly obvious consequence of the decision to hire the applicant would be the deprivation of a third party's federally protected right can the official's failure to adequately scrutinize the applicant's background constitute "deliberate indifference."

With regard to their negligent hiring claims, plaintiffs contend that City had a policy of not performing background checks before hiring police officers. Even if plaintiffs are correct, the issue is whether a review of Nance's record would have led City to the conclusion that Nance was highly likely to use excessive force in stopping a vehicle under the circumstances of this case. Reviewing the summary judgment evidence in the light most favorable to plaintiffs, the court is not persuaded that there is a genuine fact issue to present to the jury on this ground. Although plaintiffs have gotten several Azle police officers to testify in hindsight that they would have foreseen Nance's ultimate unreasonable use of force, Nance's record itself does not reflect any similar past incident. That is, assuming City had been told that Nance was a "gun nut" or "gun happy," a detailed review of his Azle personnel file would only have shown that Nance:

• lost his temper with uncooperative or rude people;

• lied to cover up violations of policy instead of admitting errors;

• threatened to arrest a person if he did not leave a convenience store as ordered;

• failed to confirm existence of a warrant before arresting the driver of a vehicle;

• threatened to have a vehicle towed if the driver did not consent to a search of the vehicle;

• made two passengers of a vehicle get on the ground when he found a BB gun in the vehicle;

• threatened to tear up a car if the driver did not tell him where drugs were hidden;

• refused to accept assistance from others;

• was terminated for failing to meet Azle's minimum standards for an officer and failing to successfully complete probation.

These things are no more egregious than the facts reviewed in Brown, 520 U.S. 397; Gros v. City of Grand Prairie, 209 F.3d 431 (5th Cir. 2000); Aguillard v. McGowen, 207 F.3d 226 (5th Cir. 2000); and Stokes v. Bullins, 844 F.2d 269 (5th Cir. 1988), where no affirmative link between background and excessive use of force was found.

2. Training, Supervision and Retention.

Like the negligent hiring claim, the claims for improper training, supervision, and retention of Nance require plaintiffs to demonstrate that City's failure amounts to deliberate indifference to the rights of persons with whom Nance would come into contact and plaintiffs must establish a causal link between the alleged inadequate training or supervision or improper retention and Butler's injuries. See City of Canton v. Harris, 489 U.S. 378, 388-89, 391 (1989); Abdeljalil v. City of Fort Worth, 55 F. Supp.2d 614, 620 (N.D. Tex. 1999), aff'd, 234 F.3d 28 (5th Cir. 2000)

As for the issue of whether City should have retained Nance as a police officer after it hired him, the court is satisfied that plaintiffs have raised a genuine fact issue for trial. Taking their evidence as true, plaintiffs have shown that sometime prior to Butler's shooting, in making a traffic stop for a minor offense, Nance pulled up behind a car and got out with his gun drawn, his hands shaking as though he wanted to pull the trigger. Nance immediately took the driver into custody and on the way to jail told him that he had only shot somebody once. The driver complained in person to Rogillio, whose response was "I stand behind my men." Pls.' App. at 401. On another occasion, Butler complained to Heaton that Nance had kicked and stomped her son and beat him up while arresting him. Id. at 293. The mayor testified that he had Rogilho investigate. However, Rogilho testified that Butler's only complaint was that Nance had shined a spotlight on her house. Id. at 259. Finally, eight weeks prior to Butler's shooting, Nance pulled up behind a man walking down the street near an abandoned car, jumped out of his vehicle, drew his gun and began shouting at the man to freeze and to get on the ground. Nance was visibly shaking and screaming and yelling. When the suspect refused to get on the ground, Nance fired a bullet into the ground a few feet behind the suspect. Nance later claimed that the suspect had grabbed his gun and fired it. The first officer to arrive on the scene told Rogilho that Nance's version of events was shady. Rogilho did not perform an adequate investigation. Instead, he encouraged Nance by telling him that he had done fine and that other officers probably would have shot the suspect.Id. at 336.

As for the training and supervision claims, the summary judgment evidence raises a genuine fact issue as to City's deliberate indifference. That is, one could conclude that City did not provide adequate training or supervision of Nance. The court is not convinced, however, that this is a separate ground of recovery from the negligent retention theory, since plaintiffs' overall theme is that Nance was wholly unsuited for police work, i.e., he was untrainable and supervision did not improve his skills or prevent him from going his own way. Had proper training and supervision been available, City would not have retained Nance.

VII. ORDER

For the reasons discussed herein,

The court ORDERS that the motions to strike be, and are hereby, denied. The court further ORDERS that City's motion for summary judgment be, and is hereby, granted in part and that plaintiffs take nothing on their state law claims and their § 1983 claim for improper hiring of Nance. The court further ORDERS that City's motion be, and is hereby, otherwise denied.