Subject: Scientology copyright lawyer Rosen shoves woman down flight of stairs


UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND 
MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER 
COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT 
IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE 
FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the 
Second Circuit, held at the United States Courthouse, Foley Square, 
in the City of New York, on the 16th day of December , Two 
Thousand and Two.

PRESENT: HONORABLE Fred I. Parker,
HONORABLE Chester J. Straub,
HONORABLE Barrington D. Parker, Jr.,
Circuit Judges.
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SAMUEL D. ROSEN,
Plaintiff-Appellant,

v.	No. 02-7033

COUNTY OF SUFFOLK, New York, SUFFOLK COUNTY SHERIFFS DEPARTMENT, 
GARY FAUCON, Sergeant, Suffolk County Deputy Sheriff (Badge #25), 
SCHREIBER, Suffolk County Deputy Sheriff (Badge #131), and DOES 1-
10,
Defendants,

SUSAN A. HANRAHAN a/k/a SUSAN HANRAHAN ROSEN, MICHAEL J. OSTROW, 
and BARBARA BROWN,
Defendants-Appellees.
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APPEARING FOR APPELLANT:	Eric M. Lieberman, Rabinowitz, 
Boudin, Standard, Krinsky & 
Lieberman, New York, NY

APPEARING FOR APPELLEE:	Mark E. Goidell, Lazer, 
Aptheker, Feldman, Rosella & 
Yedid, LLP, Melville, NY, for 
Appellee Susan A. Hanrahan
Appeal from the United States District Court for the Eastern 
District of New York (Thomas C. Platt, Judge).

Rosen v. County of Suffolk, et al.,
Docket No. 02-7033

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND 
DECREED that the decision of said district court be and it hereby 
is AFFIRMED in part, and VACATED and REMANDED in part.
Plaintiff-appellant Samuel D. Rosen appeals from the judgment 
of the United States District Court for the Eastern District of New 
York (Thomas C. Platt, Judge), entered on March 29, 2002, granting 
defendant-appellee Susan A. Hanrahan’s motion to dismiss Rosen’s § 
1983 and state law claims. The complaint alleges that Hanrahan 
violated Rosen’s constitutional rights and committed state law 
torts when she filed several petitions seeking Temporary Orders of 
Protection ("TOP") and swore out a criminal complaint alleging 
Rosen had pushed her down a flight of stairs.1 The district court 
dismissed the § 1983 claim on Younger abstention grounds, and for 
failure to state a claim. Although the district court determined 
that it lacked diversity jurisdiction over the remaining state 
claims, it also dismissed the state claims on Younger abstention 
grounds without explicitly deciding, as an initial matter, if it 
was appropriate to exercise supplemental jurisdiction over the

1Rosen’s complaint also included claims against Suffolk 

County, the Suffolk County Sheriff’s Department, two individual 
deputy sheriffs, and Hanrahan’s attorneys in the state court 
proceedings, Michael J. Ostrow and Barbara Brown. The district 
court dismissed Rosen's claims against Ostrow and Brown. Rosen 
does not challenge the dismissal of those claims. The County 
defendants and individual deputy sheriffs did not join the motion 
to dismiss that is the subject of the present appeal.
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Rosen v. County of Suffolk, et al., 
Docket No. 02-7033

state claims. Rosen argues that the district court erred by 
dismissing his § 1983 claim for failure to state a claim, 
dismissing his federal and state claims on Younger abstention 
grounds, and by failing to decide whether to exercise supplemental 
jurisdiction.

The district court dismissed Rosen’s § 1983 claim against 
Hanrahan because Rosen failed to establish that Hanrahan was a 
state actor. To state a § 1983 claim, a plaintiff must prove that 
he or she was deprived of constitutional rights as a result of 
state action by a state actor. A party may be a state actor 
"because he [or she] is a state official, because he [or she] has 
acted together with or has obtained significant aid from state 
officials, or because his [or her] conduct is otherwise chargeable 
to the State." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937

(1982). Rosen argues that under Lugar and this Court’s decision in 
Dahlberg v. Becker, 748 F.2d 85 (2d Cir. 1984), Hanrahan may be 
considered a state actor because she invoked a facially 
unconstitutional statute to accomplish a property deprivation. In 
contrast to the prejudgment attachment statute at issue in Lugar, 
however, the relevant statutory section presently at issue–Article 
8 of the New York Family Court Act ("FCA"), FCA § 821, et 
seq. provides that a TOP may issue only upon a showing of good 
cause, following judicial review of the application. FCA §
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Rosen v. County of Suffolk, et al., 
Docket No. 02-7033

828(1)(a). Neither the Supreme Court in Lugar, nor this Court in 
Dahlberg found that a private party may be sued under § 1983 when 
the challenged order was of a state judicial officer. We decline 
to expand the reach of § 1983 to encompass Hanrahan’s application 
for a TOP.

Rosen also argues that Hanrahan should be considered a state 
actor because he "alleged that Hanrahan invoked the significant 
participation of Suffolk County officials in effectuating the 
constitutional deprivation." However, it is not enough to make a 
conclusory allegation that the private and state parties acted in 
concert, "the complaint must allege facts demonstrating that the 
private entity acted in concert with the state actor." Spear v.
the district court did not err by dismissing Rosen’s § 1983 claim.
Next, Rosen argues that the district court erred by dismissing 
his state law claims seeking monetary damages on Younger abstention 
grounds. Younger abstention generally requires federal courts to 
abstain from taking jurisdiction over federal constitutional claims 
that involve or call into question ongoing state proceedings. 
Younger v. Harris, 401 U.S. 37, 43-44 (1971).	"[A]bstention and 
dismissal are inappropriate when damages are sought, even when a 
pending state proceeding raises identical issues and we would 
dismiss otherwise identical claims for declaratory and injunctive

Town of West Hartford, 954 F.2d 63, 68 (2d Cir. 1992).
Therefore,
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Rosen v. County of Suffolk, et al., 
Docket No. 02-7033

relief, but ... a stay of the action pending resolution of the 
state proceeding may be appropriate." Kirschner v. Klemons, 225 
F.3d 227, 238 (2d Cir. 2000). Therefore, the district court erred 
by dismissing Rosen’s state law claims seeking monetary damages on 
Younger abstention grounds.

We vacate the portion of the district court’s judgment that 
dismisses Rosen’s state law damages claims and remand so that the 
district court may: 1) decide whether to exercise supplemental 
jurisdiction because Rosen’s state law damages claims "form part of 
the same case or controversy" as Rosen’s claims against the 
remaining defendants, see Ciambriello v. County of Nassau, 292 F.3d 
307, 325 (2d Cir. 2002); 2) decide whether the exercise of 
supplemental jurisdiction should be declined under 28 U.S.C. § 
1367(c); and 3) if it chooses to exercise supplemental 
jurisdiction, determine whether it would be appropriate to issue a 
stay of the federal action pending the outcome of the related state 
proceedings.

For the reasons we have stated, the portion of the judgment 
dismissing Rosen’s § 1983 claim is AFFIRMED. The portion of the 
judgment dismissing Rosen’s state law claims seeking monetary 
damages is VACATED and REMANDED for further proceedings consistent 
with this order.

FOR THE COURT,
Roseann B. MacKechnie, Clerk
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Rosen v. County of Suffolk, et al., 
Docket No. 02-7033

By:	
Lucille Carr, Operations Manager