Campbell v. City of Fort Worth

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 20, 2003
• Docket: 02-10988
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS May 20, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-10988 Summary Calendar

MICHAEL R. CAMPBELL,

Plaintiff-Appellant,

versus

CITY OF FORT WORTH,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 4:01-CV-615-A --------------------

Before JONES, STEWART and DENNIS, Circuit Judges.

PER CURIAM:*

Fort Worth Police Officer Michael Campbell appeals from the

grant of summary judgment for the City of Fort Worth in his civil

action, an action that was removed to the federal district court

by the City and previously dismissed defendant Chief Ralph Mendoza.

A hearing examiner in Officer Campbell’s case affirmed Chief

Mendoza’s decision to suspend Officer Campbell indefinitely.

Finding no error, 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 02-10988 -2-

Officer Campbell contends that he did not waive his right to

seek judicial review by proceeding before the hearing examiner. He

argues that his breach-of-contract claim was not before the hearing

examiner and that, to the extent the hearing officer purported to

rule on the contract claim, the hearing officer exceeded his

jurisdiction. He also argues that the district court erred by

failing to strike Chief Mendoza’s affidavit; that the district

court erred by holding that he had failed to articulate any facts

to support his fraud claim; that the defendants were not

forthcoming in the discovery process; that the district court

misinterpreted a portion of the hearing examiner’s opinion

regarding mitigating circumstances; that there is a factual

question regarding whether the June 12, 2000, settlement agreement

was intended to cover Officer Campbell’s activities during the

suspension period; and that the district court erred by holding

that his due process rights were not violated by the prohibition on

work during the suspension period.

“[W]here a state court lacks jurisdiction of the subject

matter or of the parties, the federal District Court acquires none

on a removal of the case.” Freeman v. Bee Machine Co., 319 U.S.

448, 449 (1943). Under Texas law, a disciplined police officer may

appeal to an independent hearing examiner, but by doing so the

officer waives all rights to proceed to state court, except “on the

grounds that the [hearing examiner] was without jurisdiction or

exceeded [his] jurisdiction or that the order was procured by No. 02-10988 -3-

fraud, collusion, or other unlawful means.” TEX. LOC. GOV’T CODE ANN.

§ 143.057(c),(j)(Vernon 1999). We address only the merits of

Officer Campbell’s federal constitutional claim. See Jackson v.

Houston Indep. Sch. Dist., 994 S.W.2d 396, 401 (Tex. Ct. App. 1999)

(federal constitutional claims need not be exhausted

administratively). Moreover, regardless whether Officer Campbell

failed to exhaust his state-law breach-of-contract claim before the

hearing examiner in his case or whether the hearing officer rules

on the claim, we have no jurisdiction over it.

The Due Process Clause protects the right to work for a

living. Phillips v. Vandygriff, 711 F.2d 1217, 1222 (5th Cir.

1983). Officer Campbell was prohibited from working off-duty

during his suspension. However, Officer Campbell remained a police

officer during that period, albeit one under suspension. Because

Officer Campbell was employed, the relevant question is not whether

he was deprived of his right to work at the Jesse Jackson School,

but whether the prohibition on off-duty work by a suspended police

officer infringed on any interest protected by the Due Process

Clause.

“A property interest in employment can . . . be created by

ordinance, or by an implied contract. In either case, however, the

sufficiency of the claim of entitlement must be decided by

reference to state law.” Bishop v. Wood, 426 U.S. 341, 344 (1976).

Chief Mendoza swore that the Police Department’s General Orders

prohibited officers on limited duty status from working approved No. 02-10988 -4-

off-duty employment and that he directly ordered Officer Campbell

not to work during his suspension. Officer Campbell testified

during a deposition that he believed the General Orders prohibited

only work as a commissioned, uniformed Fort Worth Police Officer

and that they were illegal to the extent that they prohibited him

from working as a civilian.

Chief Mendoza showed that there was no state-law entitlement

for a suspended police officer to work while suspended. Quite the

contrary -- Officer Campbell was barred from working while

suspended.

Officer Campbell’s fraud claim involves the agreement

underlying his breach-of-contract claim; it does not involve the

use of fraud to obtain the hearing examiner’s opinion. Officer

Campbell has not otherwise shown that the jurisdictional bar of

TEX. LOC. GOV’T CODE ANN. § 143.057(j) (Vernon 1999) does not apply to

the nonconstitutional issues in his case.

AFFIRMED.