Rainey v. Jackson State College

¶6PER CURIAM:

¶7The plaintiff-appellant Rainey has filed a petition for rehearing and the appellees a petition for rehearing and rehearing en banc. In their petition the appellees raise the argument that they are not “persons” within the meaning of 42 U.S.C. § 1983, and are not liable for attorneys’ fees under the Civil Rights’ Attorneys’ Fees Awards Act of 1976 since they have not been properly sued pursuant to any of the statutes specified in *1003that Act.1 The individual appellees, the President of Jackson State . College and the President, Executive Secretary and members of the Board of Trustees of Institutions of Higher Learning of the State of Mississippi, were properly sued in their official capacities for injunctive relief under § 1983. See, e. g., Thurston v. Dekle, 531 F.2d 1264 (CA5, 1976).2 Since the suit was properly and successfully brought under § 1983, Rainey is entitled to attorneys’ fees under the 1976 Act. We did not state in our previous opinion, 551 F.2d 672 (CA5, 1977), the precise source for payment of these fees. Rainey is entitled to recover attorneys’ fees from the defendant state officials in their official capacities. See Morrow v. Dillard, 580 F.2d 1284, 1298 (CA5, 1978) (construing Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978)).

¶8Except to the extent herein granted, the petitions for rehearing are DENIED. 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 of appellees is DENIED.

¶9The appellant’s petition for attorneys’ fees for work done on appeal is GRANTED, and a fee of $1,500 is awarded. Appellant’s petition for additional fees for pre-appeal work is DENIED.