* Pursuant to 5 TH C IR

. 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

5 TH C IR . R. 47.5.4.

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 appeal s the dismissal of his claims against the City of

Opelousas for discrimination under the Rehabilitation Act, 29 U.S.C. § 701 et al., and

for violation of fifth amendment due process under 42 U.S.C. § 1983. We affirm.2 BACKGROUND

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

27, 1996, while of

f-duty and intoxicated he was involved in an automobile accident.

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

thereafter, in th e 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 thi s m otion, finding that the state court proceedings concerned only

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

succ essfully 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 issued2 Merritt-Campbell, Inc. v. RxP Prods., Inc. , 164 F.3d 957 (5th Cir. 1999).

3 Hamilton v. Southwestern Bell Telephone Co.

, 136 F.3d 1047 (5th Cir. 1998).

3 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 W eekly

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 disabil ity under the

Rehabilit ation Act. We need not address this contention, however, because, even4 62 F.3d 843, 847 (6th Cir. 1995).

4

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 dis c harging 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 fa ils to m ake the required p rima 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. The5 813 F.2d 709 (5th Cir. 1987).

6 204 F.3d 613 (5th Cir. 2000).

7 Rooker v. Fidelity Trust Co.

, 263 U.S. 413 (1923); District of Columbia Court of

Appeals v. Feldman , 460 U.S. 462 (1983).

5 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 S chaper v. City of Huntsville

, 5 we held that

the availability of a post-termin a tion 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 R ooker-Feldman doctrine, 7 district courts have no power to review, modif y or

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

appropriate.6

The judgment appealed is AFFIRMED.