Norcott Corby v. J. P. Conboy, Superintendent ( 1972 )

LUMBARD, Circuit Judge

(dissenting) :

I dissent and vote to remand to the District Court with instructions to refrain from acting until Corby has presented his claim to the New York courts for their determination.

The Supreme Court has not determined conclusively that section 1983 suits brought by state prisoners in New York must be heard by federal courts even though the prisoner’s constitutional claims have not been presented to the state courts. Until such a determination is made, I will adhere to my dissent in Rodriguez v. McGinnis, decided Jan. 25, 1972, on the grounds that New York State allows prisoners an effective state remedy and that control over state prisoners is a matter peculiarly important to the state. I note that we have been advised that the New York Attorney General will seek certiorari in Rodriguez.