IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-20026

Summary Calendar

BYRON THOMAS, 

 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.

United States Court of Appeals

Fifth Circuit

FILED

July 22, 2015

Lyle W. Cayce

Clerk

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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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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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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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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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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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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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