UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-31182 Summary Calendar

LAWRENCE THIBODEAUX, Plaintiff-Appellant,

versus

CITY OF OPELOUSAS, Defendant-Appellee.

Appeal from the United States District Court for the Western District of Louisiana USDC No. 97-CV-1290

February 14, 2001 Before POLITZ, JOLLY, and EMILIO M. GARZA, Circuit Judges. PER CURIAM:*

Lawrence Thibodeaux appeals the dismissal of his claims against the City of

Opelousas for discrimination under the Rehabilitation Act,

et al., and

for violation of fifth amendment due process under

. 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. BACKGROUND

Thibodeaux was a police officer employed by the City of Opelousas. On June

27, 1996, while off-duty and intoxicated he was involved in an automobile accident.

He fled the scene, leaving his police revolver in the abandoned vehicle. Shortly

thereafter, in the early morning hours, he entered a private residence, went into the

bedroom, startled the occupants, and identified himself as a police officer responding

to a 911 call. As a result, the City conducted a pre-disciplinary hearing and ultimately

terminated his employment. Thibodeaux appealed this decision to the Opelousas Fire

and Police Civil Service Board, the Louisiana 27th Judicial District Court, and the

Louisiana Third Circuit Court of Appeals. The appellate court found that Thibodeaux

was terminated in good faith for just cause and the Louisiana Supreme Court denied his

application for a writ of certiorari.

Thibodeaux filed the instant action in June of 1997. The district court issued a

stay pending final judgment in the previously filed state court proceedings. After this

stay was lifted the defendants moved for summary judgment, alleging res judicata. The

district court denied this motion, finding that the state court proceedings concerned only

whether plaintiff was dismissed in good faith and for just cause. The defendants then

successfully moved for summary judgment as to the claims under the Rehabilitation

Act. In its order, the district court requested that the parties review the recently issued

2 opinion in Weekly v. Morrow to determine if that opinion applied to plaintiff’s § 1983

claims. After briefing, the court issued a memorandum ruling stating that Weekly

prohibited the court from hearing the plaintiff’s due process claims. The defendants

then moved for summary judgment as to the remaining § 1983 claim. This motion was

granted and Thibodeaux appealed.

ANALYSIS

We review de novo the grant of a motion for summary judgment.2 A review of

the briefs and record in the case at bar persuades that the district court correctly

dismissed the plaintiff’s claims under both the Rehabilitation Act and § 1983.

In order to establish a prima facie case of discrimination under the Rehabilitation

Act, the plaintiff must demonstrate: (1) that he has a disability; (2) he is an individual

qualified for the job in question; (3) an adverse employment decision was made

because of his disability; and (4) he or she was replaced by a non-disabled person or

was treated less favorably than non-disabled employees.3 The plaintiff devotes much

of his brief to his assertion that alcoholism is construed as a disability under the

Rehabilitation Act. We need not address this contention, however, because, even

2 Merritt-Campbell, Inc. v. RxP Prods., Inc.,

(5th Cir. 1999). 3 Hamilton v. Southwestern Bell Telephone Co.,

(5th Cir. 1998).

3 assuming that the plaintiff had a disability under the act, he cannot met the third prong

of this analysis: showing that an adverse employment decision was made because of

his disability. There was a binding final determination made in the state court

proceedings that Thibodeaux was terminated in good faith and for just cause. As the

Sixth Circuit appropriately stated in Maddox v. University of Tennessee:

[There is a] distinction between discharging someone for unacceptable misconduct and discharging someone because of a disability. . . . To hold otherwise, an employer would be forced to accommodate all behavior of an alcoholic which could in any way be related to the alcoholic’s use of intoxicating beverages; behavior that would be intolerable if engaged in by a sober employee, or for that matter, an intoxicated but non-alcoholic employee.4

Thibodeaux fails to make the required prima facie showing under the Rehabilitation

act. His disability claims were properly dismissed.

Thibodeaux also asserts a due process claim under § 1983, contending that the

City denied him due process when it initially terminated him without notice and

opportunity to respond. Although the City did fail to provide proper notice to the

plaintiff prior to his first termination, they promptly rescinded that termination and

instituted proceedings for termination, giving him both a pre-determination hearing and

post-termination relief. In fact, Thibodeaux had notice of and participated in review

of his claim from the pre-determination hearing through the state court of appeals. The

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(6th Cir. 1995). 4 district court did not err in finding that the plaintiff was given an exhaustive review with

full notice. Thibodeaux received full procedural due process.

Thibodeaux additionally claims that his substantive due process rights were

violated. This contention also fails. In Schaper v. City of Huntsville,5 we held that

the availability of a post-termination hearing is an important factor in determining

whether a plaintiff’s substantive due process rights were violated. Thibodeaux was

given both a post-determination hearing and full review by subsequent state courts. No

more was required.

Finally, we agree with the district court that Thibodeaux’s due process claim is

merely a request that we overturn the state decision and reinstate him with back pay.

As we have recently noted in Weekly v. Morrow,6 such a request is equal to asking

the district court to exercise appellate jurisdiction over the state court decision. Under

the Rooker-Feldman doctrine,7 district courts have no power to review, modify or

nullify final state court determinations. Therefore, dismissal of this claim was also

appropriate.

5

(5th Cir. 1987). 6

(5th Cir. 2000). 7 Rooker v. Fidelity Trust Co.,

(1923); District of Columbia Court of Appeals v. Feldman,

(1983). 5 The judgment appealed is AFFIRMED.

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