Campbell v. City of Fort Worth ( 2003 )

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.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:01-CV-615-A
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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that this opinion should not be published and is not precedent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
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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
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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
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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.