     Case: 15-20026      Document: 00513125315         Page: 1    Date Filed: 07/22/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-20026                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                            July 22, 2015
BYRON THOMAS,                                                              Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

CITY OF HOUSTON; HOUSTON ORGANIZATION OF PUBLIC
EMPLOYEES; J. RICHARD HALL; JOSEPH G. SOLIZ,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:14-CV-485


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM:*
       Byron Thomas appeals the district court’s dismissal of his complaint
against the City of Houston (the City), the Houston Organization of Public
Employees (HOPE), and Commissioners J. Richard Hall and Joseph G. Soliz,
two members of the Civil Service Commission for Municipal Employees of the
City of Houston (Civil Service Commission) sued in their official and individual


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   No. 15-20026
capacities (collectively, Defendants). The district court held that Thomas’s
claims against the City, HOPE, and Hall and Soliz in their official capacities
were barred by the doctrine of res judicata and that Thomas’s claims against
Hall and Soliz in their individual capacities were barred by the applicable
statute of limitations. For the following reasons, we AFFIRM.
                 FACTS AND PROCEDURAL HISTORY
      Thomas began working for the City in 2000 and was appointed to the
position of Inspector for Public Works and Engineering in 2006. That same
year, Thomas became a member of HOPE, a labor union that represents City
employees and bargains with the City on their behalf. The City terminated
Thomas from his position in 2011. Thomas’s claims in this action, and the
multiple actions that Thomas filed previously, all arise from the circumstances
related to his 2011 termination.
      In 2011, the Houston Police Department conducted an investigation into
allegations that Thomas had stolen City property and sold it for personal gain.
An ensuing investigation conducted by the City revealed that Thomas had
failed to disclose several criminal convictions on his employment application
with the City. Although Thomas admitted to failing to disclose the full extent
of his criminal history, he claimed that his omissions were unintentional.
      On April 6, 2011, Thomas appeared before the Deputy Director of the
Department of Public Works and Engineering (Department of Public Works)
for a hearing on his alleged misconduct. A member of HOPE represented
Thomas at this hearing. After the hearing concluded, the City suspended
Thomas indefinitely effective April 29, 2011, citing his alleged theft of stolen
property and his failure to disclose his criminal convictions. In addition, the
Department of Public Works sent an interoffice correspondence to the City’s
Human Resources Department advising that Thomas had been terminated for
selling City property for personal gain.
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                                 No. 15-20026
      Thomas appealed his indefinite suspension to the Civil Service
Commission in a hearing held on May 26, 2011, which was presided over by
Commissioners Hall and Soliz.       HOPE did not represent Thomas at the
hearing.    After considering the evidence presented at this hearing,
Commissioners Hall and Soliz sustained the City’s indefinite suspension of
Thomas and ordered that he “be permanently discharged from present or
future direct or indirect service to the City of Houston.”
      Thomas filed four separate lawsuits all arising from the events
culminating in his 2011 termination. He has already appeared before this
court once before following his appeal from the dismissal of an earlier suit.
Initially, in September 2011, Thomas brought claims against the City and Hall
and Soliz in their official and individual capacities asserting claims for (1) a
violation of his right to due process under 42 U.S.C. § 1983, (2) a conspiracy to
violate his right to due process under 42 U.S.C. § 1985, and (3) defamation
(Thomas I). The district court dismissed Thomas’s claims against the City on
summary judgment and denied Thomas’s motion for default judgment against
Hall and Thomas in their individual capacities because Thomas had failed to
serve them with process. On appeal, we affirmed the judgment of the district
court in all respects. See Thomas v. City of Houston, 537 F. App’x 593 (2013)
(per curiam).
      In May 2013, while Thomas I was still pending, Thomas filed two suits
against HOPE – one in federal district court (Thomas II) and one in Texas state
court (Thomas III) – alleging that HOPE had breached its duty to fairly
represent him before the Civil Service Commission in 2011 in violation of the
Labor Management Relations Act (“LMRA”), 29 U.S.C. § 141 et seq. After
Thomas voluntarily dismissed his claims against HOPE in state court, the
district court granted HOPE’s motion to dismiss Thomas’s federal action
because Thomas’s claims were brought after the applicable statute of
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                                        No. 15-20026
limitations period had expired. See Thomas v. Houston Org. of Pub. Emps. No.
4:13-CV-1602 (S.D. Tex. Dec. 16, 2013). Thomas did not appeal from the
dismissal of that suit.
      Finally, after losing twice and voluntarily dismissing once, Thomas
commenced an action in federal district court yet again against the Defendants
named in this case: the City, HOPE, and Commissioners Hall and Soliz in their
official and individual capacities (Thomas IV). Thomas’s claims in this case,
as with his claims in his three earlier lawsuits, arose out of the circumstances
that culminated in his 2011 termination from the City. It is this fourth lawsuit
that underlies the instant appeal.
      Upon the Defendants’ motions, the district court dismissed all of
Thomas’s claims. The court construed Thomas’s complaint as asserting four
claims: (1) a defamation claim against the City, (2) a LMRA claim against
HOPE; (3) a § 1983 due process claim against the City and Commissioners Hall
and Soliz, in their official and individual capacities; and (4) a civil conspiracy
claim against all defendants. 1 It granted dismissal to the City, HOPE, and
Hall and Soliz in their official capacities under Fed. R. Civ. P. 12(b)(6) because
Thomas’s claims against them were barred by res judicata in light of the earlier
judgments obtained in Thomas I and Thomas II. The court then dismissed
Thomas’s claims against Hall and Soliz in their individual capacities under
Fed. R. Civ. P. 12(c) based on their assertion of a statute of limitations defense.
This appeal followed.




      1   Thomas does not object to the district court’s construction of his claims on appeal.
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                          STANDARD OF REVIEW
      We review de novo the res judicata effect of a prior judgment. Webb v.
Town of St. Joseph, 560 F. App’x 362, 365 (5th Cir. 2014) (per curiam); Test
Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 571 (5th Cir. 2005). We also
review de novo “a district court’s conclusion that a claim is time-barred.” Price
v. City of San Antonio, 431 F.3d 890, 892 (5th Cir. 2005) (per curiam) (quoting
Rashidi v. Am. President Lines, 96 F.3d 124, 126 (5th Cir. 1996).
                                DISCUSSION
      We first affirm the district court’s dismissal of Thomas’s claims against
the City, HOPE, and Hall and Soliz in their official capacities on the basis of
res judicata. “The doctrine of res judicata, or claim preclusion, forecloses
relitigation of claims that were or could have been raised in a prior action.”
Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 312-13 (5th Cir. 2004);
accord Sidag Aktiengesellschaft v. Smoked Foods Prods. Co., 776 F.2d 1270,
1273 (5th Cir. 1985). The doctrine “insures the finality of judgments and
thereby conserves judicial resources and protects litigants from multiple
lawsuits.” Oreck Direct, LLC v. Dyson, Inc., 560 F.3d 398, 401 (5th Cir. 2009)
(quoting Allen v. McCurry, 449 U.S. 90, 94 (1980)). “[O]ne who has a choice of
more than one remedy for a given wrong . . . may not assert them serially, in
successive actions, but must advance all at once on pain of bar.” Nilsen v. City
of Moss Point, 701 F.2d 556, 560 (5th Cir. 1983) (en banc).
      “Federal law determines the res judicata effect of a prior federal court
judgment.” Russell v. SunAmerica Secs., Inc., 962 F.2d 1169, 1172 (5th Cir.
1992). For res judicata to apply as a matter of federal law four elements must
be met:
      (1) the parties are identical or in privity; (2) the judgment in the
      prior action was rendered by a court of competent jurisdiction; (3)
      the prior action was concluded by a final judgment on the merits;

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                                       No. 15-20026
       and (4) the same claim or cause of action was involved in both
       actions.
Test Masters, 428 F.3d at 571. To determine whether a prior and current suit
involve the same cause of action, we apply a “transactional” test. Davis, 383
F.3d at 313. “Under the transactional test, a prior judgment’s preclusive effect
extends to all rights of the plaintiff with respect to all or any part of the
transaction, or series of connected transactions, out of which the original action
arose.” Id. (internal quotations and alterations omitted). In applying this test,
“[t]he critical issue is whether the two actions are based on the same nucleus
of operative facts.” Test Masters, 428 F.3d at 571 (internal quotations omitted).
       As the district court properly held, res judicata bars Thomas’s claims
against the City, HOPE, and Hall and Soliz in their official capacities because
the claims were or could have been litigated in Thomas’s previous suits.
Thomas sued the City and Hall and Soliz in their official capacities in Thomas
I and HOPE in Thomas II. Both suits resulted in final judgments that disposed
of Thomas’s claims on the merits. 2 Further, both suits arose from the same
nucleus of operative facts as those which gave rise to Thomas’s claims in this
action: the events culminating in Thomas’s 2011 termination. Accordingly, res
judicata barred Thomas from relitigating these claims.
       We also affirm the district court’s dismissal of Thomas’s claims against
Hall and Soliz in their individual capacities. Thomas’s claims against Hall and
Soliz in their individual capacities related to the Civil Service Commission
hearing over which Hall and Soliz presided.                  On May 26, 2011, at the
conclusion of that hearing, Hall and Soliz affirmed Thomas’s indefinite



       2 The district court’s dismissal of Thomas’s claims against HOPE in Thomas II on
statute of limitations grounds was a dismissal on the merits for federal res judicata purposes.
See Ellis v. Amex Life Ins. Co., 211 F.3d 935, 937 (5th Cir. 2000); Nilsen, 701 F.2d at 562.


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                                 No. 15-20026
suspension and issued an order terminating Thomas from his position with the
City. Thomas brought a § 1983 due process claim against Hall and Soliz for
allegedly failing to provide him with a full and fair hearing and a Texas state
law civil conspiracy claim for allegedly conspiring to terminate Thomas from
his employment.
      “The limitations period for a claim brought under section 1983 is
determined by the general statute of limitations governing personal injuries in
the forum state.” Price, 431 F.3d at 892. In Texas, the applicable limitations
period for Thomas’s § 1983 due process claim is two years. See Tex. Civ. Prac.
& Rem. Code Ann. § 16.003 (West 2005); see also Smith v. Acevedo, 478 F.
App’x. 116, 124 (5th Cir. 2012) (per curiam); Price, 431 F.3d at 892; Hitt v.
Connell, 301 F.3d 240, 246 (5th Cir. 2002). Thomas’s state law civil conspiracy
claim is also subject to a two year statute of limitations. Thomas v. Barton
Lodge II, Ltd., 174 F.3d 636, 645 (5th Cir. 1999).
      The district court determined that Thomas’s § 1983 claim and his civil
conspiracy claim accrued no later than May 26, 2011, which is the date that
the Civil Service Commission upheld Thomas’s termination from the City. It
then held that these claims were untimely because Thomas did not commence
this action until January 21, 2014, more than two years after the limitations
period for both claims expired. Thomas does not specifically dispute these
findings on appeal.
      Instead, Thomas argues that the statute of limitations should be tolled
because he attempted to serve Hall and Thomas with due diligence. Other
than making this conclusory statement, however, Thomas fails to elaborate or
point to any portion of the record that reveals the steps he took to diligently
effect service prior to the expiration of the limitations period. In any event,
Thomas’s argument that the statute of limitations should be tolled due to his
due diligence was not presented to the district court and he has therefore
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                                No. 15-20026
waived the argument for purposes of this appeal. Estate of Martineau v. ARCO
Chem. Co., 203 F.3d 904, 913 (5th Cir. 2000).
     The district court’s judgment is AFFIRMED.




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