JOHN H. HUNT ET AL., ETC., PLAINTIFFS-APPELLANTS,
v.
GEORGE RODRIGUEZ, JR., ETC., ET AL., DEFENDANTS-APPELLEES
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The court held that the district court erred in dismissing the claim for money damages under 42 U.S.C. § 1983 based on the abstention doctrine.
Appellants sought money damages under 42 U.S.C. § 1983, but the district court dismissed this portion of the lawsuit based on abstention. The motion t…
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PER CURIAM:
The Petition for Rehearing filed by appellants correctly points out that the Court did not discuss or decide the error asserted in the district court’s dismissal of the complaint insofar as it sought money damages pursuant to 42 U.S.C. A. § 1983. The motion to dismiss was not directed to that portion of the complaint seeking money damages.
The district court nevertheless found that “it should and does abstain from hearing the monetary damage portion of Plaintiffs’ lawsuit * * * ” and accordingly dismissed it. This was error. The abstention doctrine is not applicable sub judice, and we cannot say that it appears “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 1957, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80.
With respect to appellants’ claim for money damages only the Petition for Rehearing is granted and the judgment of the district court is reversed. In all other respects the Petition for Rehearing is Denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.
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Citator
Cited By
-
Meltzer v. Bd. OF Pub. Instruction OF Orange Cnty., 480 F.2d 552 (5th Cir. 1973)
Authorities Cited
- Conley v. Gibson, 355 U.S. 41 (U.S. 1957)