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ROSEN v. COUNTY OF SUFFOLK

February 25, 2004.

SAMUEL D. ROSEN, Plaintiff, -against- COUNTY OF SUFFOLK, NEW YORK, SUFFOLK COUNTY SHERIFF'S DEPARTMENT, GARY FAUCON, SUFFOLK COUNTY DEPUTY SHERIFF (BADGE #25), SCHREIBER, SUFFOLK COUNTY DEPUTY SHERIFF (BADGE #131), SUSAN A. HANRAHAN aka SUSAN HANRAHAN ROSEN, DOES 1-10, MICHAEL J. OSTROW, and BARBARA BROWN, Defendants(s)


The opinion of the court was delivered by: THOMAS PLATT, JR., Senior District Judge

MEMORANDUM AND ORDER

This case revolves around a particularly acrimonious divorce between Samuel D. Rosen, ("Rosen" or "Plaintiff") and his ex-wife, Susan Hanrahan ("Hanrahan" or "Defendant"), which has inexplicably wended its way into the federal courts, wasting valuable time and resources, as well as the patience of this Court. It all began in February of 2000, when the Plaintiff filed for divorce from Hanrahan. Page 2 Problems erupted between the couple during the subsequent divorce proceedings and nine months later, the Plaintiff brought this lawsuit against Hanrahan, her divorce attorneys, Michael J. Ostrow ("Ostrow") and Barbara Brown ("Brown"), the County of Suffolk ("County"), Suffolk County Sheriff's Department ("Sheriff's Dept."), Does 1-10, Suffolk County Deputy Sheriff Sergeant Gary Faucon ("Faucon"), and Suffolk County Deputy Sheriff Schreiber ("Schreiber"), alleging violations of 42 U.S.C._1983 and various State laws. In addition, the Plaintiff also brought a separate lawsuit against Hanrahan in New York State Court, alleging, among other things, parallel State law violations to the ones in the instant action.

Defendant Hanrahan, along with Ostrow and Brown, subsequently made a motion to dismiss the complaint. On August 30, 2001, this Court dismissed the Plaintiff's federal claims against Hanrahan on two grounds. First, the Court held that Hanrahan was not a State actor and second, even if Hanrahan were a State actor, abstention under Younger v. Harris, 401 U.S. 37 (1971) would be appropriate. See August 30, 2001 Order at 6-8. The Court also dismissed the Plaintiff's State law malicious prosecution Page 3 claim against Hanrahan and his State law abuse of prosecution claims against Hanrahan and her attorneys.*fn1 Id. Defendant Hanrahan then moved for attorney's fees pursuant to 42 U.S.C._1988(b), which this Court denied, without prejudice to renew, once the Plaintiff's appeal had been decided.

  In a Summary Order dated December 16, 2002, the Court of Appeals for the Second Circuit affirmed this Court's dismissal of the Plaintiff's federal law claims against defendant Hanrahan, but vacated the dismissal of the State law claims and remanded for this Court to determine whether it should exercise supplemental jurisdiction. Rosen v. County of Suffolk, 53 Fed. Appx. 578, 581 (2d Cir. 2002).

  Currently, there are four motions before this Court:
1. Defendants County, Sheriff's Dept., Faucon, and Schreiber ("County Defendants") move pursuant to Fed.R. Civ. P.12(c) for a judgment on the pleadings;
2. Defendant Hanrahan renews her motion for attorney's fees pursuant to_1988(b);
  3. Defendant Hanrahan requests that this Court decline to exercise supplemental jurisdiction pursuant to 28 U.S.C._1367(c)(3) over Plaintiff's State law claims or in the alternative, moves pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the claims; and Page 4 4. Plaintiff cross-moves for partial summary judgment pursuant to Fed.R.Civ.P. 56(c) to dismiss Defendants Faucon and Schreiber's defense of qualified immunity.

  For the foregoing reasons, the County Defendants' motion pursuant to Fed.R.Civ.P. 12(c) should be GRANTED, Defendant Hanrahan's motion for attorney's fees pursuant to_1988(b) should be DENIED, the State law claims against Defendant Hanrahan should be DISMISSED, as this Court declines to exercise supplemental jurisdiction and the Plaintiff's cross-motion pursuant to Fed.R.Civ.P. 56(c) should also be DENIED, and this Court, sua sponte, GRANTS summary judgment, in part, in favor of Defendant Schreiber and other unnamed peace officers.

  BACKGROUND

 Factual History

  The factual history in this case is somewhat confusing as it involves multiple defendants in varying stages of the litigation process. In an attempt to dispel some confusion, the factual recitations are divided up according to the two groups of Defendants: 1) County Defendants, and 2) Hanrahan.

  I. County Defendants: Motion for Judgment on the Pleadings

  The first motion, brought by the County Defendants, concerns their Page 5 execution of a Temporary Order of Protection ("TOP"). On Thursday, August 17, 2000, after an earlier "domestic" dispute with the Plaintiff, Defendant Hanrahan obtained an ex parte TOP from the Suffolk County State Court ("State Court"), which prevented the Plaintiff from entering their shared marital home. The TOP had a return date of Wednesday, August 23, 2000 and stated that the Plaintiff was "permitted to remove his/her personal effects" from the home "no later than 6:00 p.m., 8-24-2000 provided that [the Plaintiff] is accompanied by a police officer or deputy sheriff." (Defs. Exh. A).

  On that same day, August 17th, the Plaintiff drove to his beach house on the Jersey shore for the weekend. The Plaintiff alleges that Defendant Schreiber purposefully waited until the next day to contact him about the TOP, thereby depriving the Plaintiff of the opportunity to request an evidentiary hearing.*fn2 Moreover, instead of calling his summer house, Schreiber called the Plaintiff's office and left a voice mail. In this voicemail, "Schreiber did not identify the nature of the papers, did not inform [the Page 6 Plaintiff] that they were the TOP, and did not warn [the Plaintiff] to keep away from the Huntington house Hanrahan and [the Plaintiff] shared." (Pl. Mem. of Law at 3).

  When the Plaintiff reviewed his office messages on Friday afternoon, he heard Schreiber's message and returned the call. In this telephone conversation, Schreiber "stated that he had some `papers' to serve on Rosen," but again, allegedly "refused to identify the nature of these `papers.'" (Pl. Mem. of Law at 3). In any event, Schreiber and the Plaintiff agreed to meet at the marital home on Sunday for service.

  Due to an unexpected change of plans, however, the Plaintiff returned to his marital home a day early, on Saturday the 19th. Defendant Hanrahan immediately called the Sheriff's Dept. and Schreiber, accompanied by three additional peace officers, entered the premises and served the TOP on the Plaintiff. The Plaintiff alleges that Defendant Schreiber informed him that he had only a "few minutes" to pack his belongings and would not be allowed to re-enter the marital home once he left, with or without police accompaniment. Schreiber and the other officers then "confined and restrained [the Plaintiff's] movements, surrounded him, permitted Rosen to enter only two rooms of the house, followed him into his bedroom, and watched and examined his personal items as he packed them." (Pl. Mem. of Law at 4). Page 7

  When the Plaintiff later realized that he had forgotten some of his possessions during the rush to vacate the marital home, most importantly, his passport, he called the Sheriff's Dept. to see if he could return to retrieve the items. Defendant Faucon, however, refused to dispatch a police officer to accompany the Plaintiff back to the marital home. Moreover, the Plaintiff alleges that Faucon told him that according to his interpretation of the TOP and ...


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