GEWIN, Circuit Judge:
The appellant, Harrison Cheramie, was severely injured in an automobile accident on March 4, 1967. He brought suit against the Louisiana Department of Highways in the state district court alleging that his injuries resulted from the Department's failure to erect and maintain two traffic control devices. On the facts as found by the trial judge he was awarded a judgment in excess of $1.2 million. Under Louisiana's system of appellate review of the facts as well as the law the Louisiana First Circuit Court of Appeal reversed and rendered judgment against the appellant finding that the factual findings of the trial court were manifestly erroneous.
After several unsuccessful attempts to reverse the appellate decision upon direct review the present action was filed in the federal court. Pursuant to 42 U. S.C. § 1983 the appellant asserts that by their action the appellate judges were "persons" depriving him of his due process rights under the fourteenth amendment. In addition to the three appellate judges the State of Louisiana was named as a defendant through its Department of Highways. The district court granted the judges' motion for summary judgment and the State's motion for dismissal. We affirm.
It is well established that states and their political subdivisions are not "persons" within the meaning of 42 U. S.C. § 1983.
The appellant, however, has also sued the three appellate judges individually and in their judicial capacity. Although suing the judges individually satisfies the "person" requirement of § 1983, it does not end the appellant's problems. Section 1983 does not affect the well established rule that judges are immune from damage suits arising out of the exercise of their judicial function.
While recognizing the judicial immunity to suits for damages the appellant contends that judges are susceptible to civil rights actions seeking equitable relief. The appellant does not seek damages from the judges. Rather he requests that this court hold their decision to be unconstitutional.
There is indeed some authority recognizing a distinction between suits for damages and suits for purely equitable relief.
The substance of the appellant's claim is not the unconstitutionality of the Louisiana system but the alleged unconstitutional application of the system to his case. In essence he contends that the state court merely paid "lip service" to the doctrine of manifest error which is alleged to save the constitutionality of the Louisiana system.
This court recently quoted with approval the following principle:
The appellant has had a full and fair opportunity to litigate the issue of the Highway Department's negligence. For this court to grant the appellant his requested relief it would be necessary to reexamine the negligence issue. This we decline to do. It does not appear to be appropriate under any theory advanced by the appellant for this court to review the decision of the appellate courts of Louisiana in a negligence case.
The judgment of the district court is, therefore, affirmed.
Assuming that the parties to this federal action are not the same as those in the earlier state litigation or their privies, we note that this court has embraced the modern trend and has moved toward repudiation of the mutuality of estoppel rule. Rachal v. Hill, 435 F.2d 59, 61-62 (5th Cir. 1970). See also Blonder-Tongue Labs v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971); James Talcott, Inc. v. Allahabad Bank, Ltd., 444 F.2d 451, 461 (5th Cir. 1971); Seguros Tepeyac, S. A., Compania Mexicana v. Jernigan, 410 F.2d 718 (5th Cir.), cert. denied, 396 U.S. 905, 90 S.Ct. 219, 24 L.Ed.2d 181 (1969).