468 F2d 615 Hunt v. Rodriguez

468 F.2d 615

John H. HUNT et al., etc., Plaintiffs-Appellants,
v.
George RODRIGUEZ, Jr., etc., et al., Defendants-Appellees.

No. 71-3394.

United States Court of Appeals,
Fifth Circuit.

Oct. 4, 1972.

Mel S. Friedman, W. B. (Bennie) House, Jr., Houston, Tex., Paul T. Caruthers, El Paso, Tex., for plaintiffs-appellants.

Travis White, City Atty., John C. Ross, Jr., Wade Adkins, Paul Echols, Asst. City Attys., C. Larry Mathews, Jr., George Rodrigues, Jr., County Atty., Alan Nasits, El Paso, Tex., for defendants-appellees.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

Before DYER, Circuit Judge, SKELTON, Judge*, and INGRAHAM, Circuit Judge.

PER CURIAM:

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1

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. Sec. 1983.

2

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.

3

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.

4

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.

*

Honorable Byron G. Skelton, U.S. Court of Claims, sitting by designation