dissenting:
I respectfully dissent.
The majority concludes that the instant § 1983 action is barred by the prior state court judgment “because the [§ 1983] claim clearly could have been raised in Allen’s earlier state court action.”
This may reflect an entirely correct application of the modem “transactional” approach to determining the scope of claims, hence the claim-preclusive effect of prior judgments under res judicata principles, see Restatement (Second) of Judgments § 24 & comment a (1982). But it does not accurately reflect my reading of South Carolina res judicata law, which 28 U.S.C. § 1738 mandates must control our determination of the preclusive effect of the prior state court judgment. See Kremer v. Chemical Construction Corp., 456 U.S. 461, 481-82, 102 S.Ct. 1883, 1897-98, 72 L.Ed.2d 262 (1982).
By my reading, South Carolina has traditionally and still applies the classically more narrow view of the scope of a claim or cause of action for res judicata (bar or merger) purposes. Under that view, succes*936sive claims are the “same” claim for res judicata purposes only: “[i]f the same facts or evidence would sustain both,” Griggs v. Griggs, 214 S.C. 177,184, 51 S.E.2d 622, 626 (1949); and if both involve the same primary right of the plaintiff and duty of the defendant, see Harth v. United Insurance Co. of America, 266 S.C. 1, 221 S.E.2d 102 (1975). See generally Stewart, Res Judicata and Collateral Estoppel in South Carolina, 28 S.C.L.Rev. 451, 453-61 (1977).
Applying either test, I think it plain that Allen’s § 1983 claim would not be barred by the prior judgment on his contract claim. The facts necessary to proving his allegation that he was terminated for racially discriminatory reasons surely differ from the facts needed to show a breach of contract not even addressed to the question of Allen’s termination. Moreover, these two actions do not involve the same primary right and duty. Cf. Stewart, supra, at 458 (“a defendant may be sued separately for damages resulting from the wrongful death of plaintiff’s deceased and for injuries to the deceased under a survival statute”).
I would reverse the district court and remand for proceedings on the merits of Allen’s claim.