Opinion
No. 78-1185.
January 2, 1980.
Barry A. Fisher, David Grosz, Beverly Hills, Cal., Woody Rosen, Marian S. Rosen, Houston, Tex., for plaintiffs-appellants.
Joseph G. Rollins, Sr., Asst. City Atty., Houston, Tex., for defendants-appellees.
Appeal from the United States District Court for the Southern District of Texas.
Before CHARLES CLARK, RONEY and HENDERSON, Circuit Judges.
In this case, the district court denied attorney's fees to the prevailing party in International Society for Krishna Consciousness v. Collins, 452 F. Supp. 1007 (S.D.Tex. 1977), on the sole ground that the plaintiffs did not come within the purview of the attorney's fee provision in 42 U.S.C.A. § 1988 because they are not penurious, and financial limitations have not been a detriment or an obstacle to the vindication of plaintiffs' legal rights.
Regardless of what the law might have been in 1977 when this order was entered, this Circuit has now clearly held that a plaintiff's ability to pay is not a "special circumstance" that would prohibit an award of attorney's fees under § 1988. Bunn v. Central Realty of Louisiana, 592 F.2d 891, 892 (5th Cir. 1979); Gore v. Turner, 563 F.2d 159, 163-164 (5th Cir. 1977)
The order denying attorney's fees is vacated and the case is remanded to the district court for a determination of attorney's fees in accordance with the law that has now developed under 42 U.S.C.A. § 1988. See Hutto v. Finney, 437 U.S. 678, 693-700, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978); Johnson v. Mississippi, 606 F.2d 635 (5th Cir. 1979); Iranian Students Ass'n v. Edwards, 604 F.2d 352, 353 (5th Cir. 1979); Concerned Democrats v. Reno, 601 F.2d 891, 892 (5th Cir. 1979); Dillon v. AFBIC Development Corp., 597 F.2d 556, 564 (5th Cir. 1979); Crowe v. Lucas, 595 F.2d 985, 993 (5th Cir. 1979); Criterion Club v. Board of Commissioners, 594 F.2d 118, 120 (5th Cir. 1979); Rainey v. Jackson State College, 591 F.2d 1002, 1003 (5th Cir. 1979); Morrow v. Dillard, 580 F.2d 1284, 1300 (5th Cir. 1978).
VACATED AND REMANDED.