UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
March 29, 1979
ISAAC BURRISON, APPELLANT,
NEW YORK CITY TRANSIT AUTHORITY, APPELLEE.
Appeal from the United States District Court for the Eastern District of New York.
Present: Hon. J. Edward Lumbard, Hon. James L. Oakes, Hon. Ellsworth A. Van Graafeiland, Circuit Judges.
This cause came on to be heard on the transcript of record from the Eastern District of New York and was argued by counsel.
ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the judgment of said district court, Jack B. Weinstein, Judge, dismissing the complaint is hereby affirmed on the authority of Turco v. Monroe County Bar Association, 554 F.2d 515 (2d Cir. 1977), cert. denied, 434 U.S. 834 (1977). Compare Ornstein v. Regan, 574 F.2d 115 (2d Cir. 1978) ( § 1983 action available where plaintiff did not raise constitutional issues in prior state court proceeding), with Winters v' Lavine, 574 F.2d 46 (2d Cir. 1978) (constitutional issues actually litigated in state court cannot be relitigated under § 1983). Judge Oakes adheres to his statement in Turco, supra, 554 F.2d at 522 (concurring opinion).
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