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Defendants’ reply brief in response to plaintiff’s response brief and in support of defendants’ motion for summary judgment

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  • 1. Case 1:11-cv-20120-PAS Document 91 Entered on FLSD Docket 01/12/2012 Page 1 of 12 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA CASE NO.: 11-20120-CIV-SEITZ/SIMONTON TRAIAN BUJDUVEANU, Plaintiff, vs. DISMAS CHARITIES, INC., ANA GISPERT, DEREK THOMAS and ADAMS LESHOTA Defendants. _________________________________________/ DEFENDANTS’ REPLY BRIEF IN RESPONSE TO PLAINTIFF’S RESPONSE BRIEF AND IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Defendants Dismas Charities, Inc., Ana Gispert, Derek Thomas and Lashanda Adams, (collectively “Defendants”) by and through their undersigned counsel, file their Reply Brief in Support of their Motion for Summary Judgment, against Traian Bujduveanu (“Plaintiff”) as follows: FACTUAL BACKGROUND Plaintiff was transferred to Dismas’ Dania facility as a transition point from federal prison system back to into the community. The Plaintiff acknowledged that his placement in a community corrections facility was a privilege not a right and that he remained under the custody of the Attorney General of the United States. (Affidavit of Ana Gispert, Docket 83-2, Exhibits on pages 38 and 34) Plaintiff also agreed to follow the rules of the Attorney General, Federal Bureaus of Prisons and Dismas. These conditions included the Plaintiff’s agreement not to drive without the permission or consent of Dismas; not to possess contraband, including cell phones and consenting to searches of his person and vehicle. (Affidavit of Ana Gispert, Docket 83-2,
  • 2. Case 1:11-cv-20120-PAS Document 91 Entered on FLSD Docket 01/12/2012 Page 2 of 12 Exhibits on pages 11, 16, 17, 19, 20, 21, 24, 25, 31, 36, 37, 38 and 39) Due to health issues, Plaintiff was transferred from Dismas’ Dania facility to home confinement. On September 10, 2010, Plaintiff acknowledged that the policies and procedures and rules and regulations of the facility, in his case Dismas, are still applicable even while he was on home confinement. (Affidavit of Ana Gispert, Docket 83-2, Exhibit on page 39) Plaintiff was never given permission by Dismas to drive a vehicle. (Affidavit of Ana Gispert, Docket 83-2, pages 4-5 of her affidavit.) Plaintiff admitted that he drove a vehicle from his home to Dismas on October 13, 2010 without approved authorization. (Plaintiff’s Response Brief, Docket Number 90, pages 2 and 34) When the Plaintiff drove to Dismas without permission, his vehicle was searched and Plaintiff was found to be in possession of a cell phone in the car. (Affidavit of Ana Gispert, Docket 83-2, pages 4-6 of her affidavit and Exhibits on pages 11, 16, 17, 19, 20, 21, 24, 25, 31, 36, 37, 38 and 39.) Dismas, as was required, reported Plaintiff’s violations to the Federal Bureau of Prisons. The Federal Bureau of Prisons then had the United States Marshall’s Service return the Plaintiff to the Federal Detention Center-Miami. (Affidavit of Ana Gispert, Docket 83-2, Exhibits on page 50) Upon his return to the Federal Detention Center-Miami, the Bureau of Prisons held a hearing attended by the Plaintiff and independently found Plaintiff guilty of the violations. (Affidavit of Ana Gispert, Docket 83-2, Exhibits on page 50 and Plaintiff’s Response Brief, Docket Number 90, pages 32-37) Plaintiff subsequently served out the last 68 days of his federal prison sentence and was then released. Despite the fact that the Plaintiff admittedly violated the rules and regulations and conditions of his release to a community center, the Plaintiff has filed a lawsuit against Dismas and three of its employees alleging a plethora of state and federal actions. For the reasons set forth below, Defendants are entitled to summary judgment. 2
  • 3. Case 1:11-cv-20120-PAS Document 91 Entered on FLSD Docket 01/12/2012 Page 3 of 12 ARGUMENT AND CITATION TO AUTHORITY 1. The Plaintiff cannot maintain any cause of action for any tortious conduct under Florida Common Law against the Defendants. a. False Arrest and Imprisonment In his response brief, the Plaintiff fails to set forth any facts demonstrating a false imprisonment or arrest by any specific Defendant. The Plaintiff has not and cannot show an unlawful or unreasonable detention by any Defendant. First, the Plaintiff was not arrested by any Defendant or anyone for that matter. Second, and more importantly, the Plaintiff could not be arrested or imprisoned as he was already a prisoner serving his prison sentence at the time of the incidents described in the Complaint. The Plaintiff even acknowledged that he remained under the custody of the Attorney General of the United States, which includes the Federal Bureau of Prisons. The Plaintiff appears to be under the false and misguided impression that he was a “free man” during his time at Dismas, even though he was still serving a Federal Prison sentence. This is evidenced by the fact that the Plaintiff felt he could drive without permission and possess a cell phone, which was contraband for Federal inmates like the Plaintiff. Third, the Defendants did not arrest or imprison the Plaintiff. The Plaintiff was picked up by the U.S. Marshall Service and imprisoned by the Federal Bureau of Prisons. In his response brief, the Plaintiff even states that “Defendant was not the one that physically placed the Movant in specific confined area and held him against his will.” (Response Brief, Docket 90, page 5) The Plaintiff fails to state which, if any defendant, imprisoned him. Regardless, the Plaintiff was not, and could not, be arrested or imprisoned by any Defendant because none of the Defendants have the authority or power to arrest or imprison the Plaintiff. Only the Federal Bureau of 3
  • 4. Case 1:11-cv-20120-PAS Document 91 Entered on FLSD Docket 01/12/2012 Page 4 of 12 Prisons, individually or through the United States Marshalls Service, has authority to arrest or imprison the Plaintiff. For this reason alone, Plaintiffs claims fail as a matter of law and fact. Even if any of the Defendants could arrest or imprison the Plaintiff, which is denied, a privilege exists as a matter of law to engage in reckless or even outrageous conduct if there is sufficient evidence that shows that the Defendant did no more than assert legal rights in a permissible way. Rivers v. Dillards Department Store, 698 So. 2d 1328, 1331 (Fla. 1st DCA 1997). The Defendants were obligated to report the Plaintiff’s violation of his conditions imposed by the Federal Bureau of Prisons (not the Defendants) to the Federal Bureau of Prisons. Upon his return to the Federal Detention Center-Miami, the Bureau of Prisons held a hearing, attended by the Plaintiff, during which the Federal Bureau of Prisons independently found Plaintiff guilty of the violations. The Bureau of Prison’s sanction for the Plaintiff’s actions was that he remain disciplinary transferred from Dismas to the Federal Detention Center-Miami to complete the final 68 days of his sentence. Even if Plaintiff was falsely imprisoned or arrested, which is denied, he did not suffer any damages because he was a prisoner serving out the remainder of his prison sentence. Plaintiff still had 68 days left on his sentence, which he had to serve regardless of location. Community Center placement is a privilege, not a right. Therefore, Plaintiff suffered no damages even if a false imprisonment or arrest occurred. b. Assault and Battery The complaint and record of this case are devoid of any properly supported facts or allegations of assault or battery by any Defendant. In his response brief, the Plaintiff claims that Defendants’ failure to provide him with documents, specifically BP-9 and BP-10 forms constitutes an assault and battery. (Response Brief, Docket 90, pages 5-6) Even accepting these allegations as true, failing to provide someone with forms does not constitute an assault or 4
  • 5. Case 1:11-cv-20120-PAS Document 91 Entered on FLSD Docket 01/12/2012 Page 5 of 12 battery. Accordingly, Defendants are entitled to summary judgment as the Plaintiff has not provided any facts to support allegations of assault and battery. c. Malicious Prosecution. To maintain a cause of action for malicious prosecution, the Plaintiff must prove 1) the commencement of a judicial proceeding; 2) the legal causation by the Defendant against the Plaintiff; 3) its bona fide termination in favor of the Plaintiff; 4) the absence of probable cause for the prosecution; 5) malice and 6) damages. Hickman v. Barclay’s International Realty, Inc., 16 So.3d 154, 155 (Fla. 4th DCA 2009). The Plaintiff cannot prove any of the elements of malicious prosecution. Plaintiff fails to show the commencement of judicial proceedings against the Plaintiff by any Defendant. In fact, the Plaintiff concedes in his response brief that the Federal Bureau of Prisons conducted the hearing regarding his violation of his halfway house program. Second, and most importantly, there was no bona fide termination in favor of the Plaintiff. Even if the Defendants initiated any judicial proceeding, which is denied, the Plaintiff did not prevail in the proceedings. Upon his return to the Federal Detention Center-Miami, the Bureau of Prisons held a hearing attended by the Plaintiff and independently found Plaintiff guilty of the violations. (Plaintiff’s Response Brief, Docket Number 90, pages 32-37) Third, probable cause existed as the Plaintiff admittedly drove a vehicle without permission in violation of the terms of his halfway house/home confinement set forth by the Federal Bureau of Prisons. Plaintiff was never given permission by Dismas to drive a vehicle. Plaintiff admitted that he drove a vehicle from his home to Dismas on October 13, 2010 without approved authorization. (Plaintiff’s Response Brief, Docket Number 90, pages 2 and 34) Since 5
  • 6. Case 1:11-cv-20120-PAS Document 91 Entered on FLSD Docket 01/12/2012 Page 6 of 12 the Plaintiff has not, and cannot establish the elements of malicious prosecution, Defendants must be awarded summary judgment. d. Abuse of process. To support a cause of action for abuse of process, the Plaintiff must prove that the process was used for an immediate purpose other than that for which it was designed. Biondo v. Powers, 805 So. 2d 67, 69 (Fla. 4th DCA 2002). In his response brief, Plaintiff lists documents and letters. (Response Brief, p. 8-9) Plaintiff makes unsubstantiated allegations and self serving statements without evidence that the documents listed are fabricated. However, the documents listed (i.e. transfer orders and letters) do not constitute “process.” Regardless, the Plaintiff fails to provide any properly documented facts or evidence that the process was used for any purpose other than that for which it was designed. For example, if any Defendant used the Disciplinary Report System, the Report was used for no other purpose than that for which it was designed. Under Florida law, there is no abuse of process when the process is used to accomplish the result for which it was created, regardless of the incidental or concurrent motive of spite or ulterior purpose. S & I Investments v. Payless Flea Market, 36 So. 3d 909, 917 (Fla. 4th DCA 2010)(the usual case of abuse of process involves some form of extortion.) Accordingly, the Defendants are entitled to final summary judgment. e. Negligence and Gross Negligence The Plaintiff cannot maintain a cause of action for negligence or gross negligence because the Plaintiff cannot show any duty owed by the Defendants to the Plaintiff that was breached or any damages that flowed from any alleged breach of duty. There was no negligence with regards to the Plaintiff’s medical condition. In fact, the Plaintiff attached an Exhibit to his 6
  • 7. Case 1:11-cv-20120-PAS Document 91 Entered on FLSD Docket 01/12/2012 Page 7 of 12 Motion for Summary Judgment, signed by both Adams and Thomas recommending that the Plaintiff not work because of his medical condition and he was permitted home confinement. The motion for summary judgment is also devoid of any proper facts supporting any negligence. In his response brief, the Plaintiff contends that he was forced to perform manual labor, constantly terrorized and intimidated, forced to do clean work and was not permitted to accept meals from his wife. However, the Plaintiff fails to provide any support for these allegations including factual descriptions of the alleged intimidation and refusal of meals by his wife or any damages allegedly sustained. Even if these actions did occur, they do not constitute negligence, but rather are intentional acts. Further, the Plaintiff has not documented any damages from these alleged acts. Accordingly, Defendants must be awarded summary judgment. 2. The Complaint fails to allege any tortious conduct or violations of Federal Law or the Constitution. As was stated by this Court the Court in its Order issued March 30, 2011 (Docket number 18) “the plaintiff’s claim of an unlawful search and seizure of his vehicle lacks merit. The defendants are private parties, and therefore, their actions do not trigger the constitutional implications of the Fourth Amendment.” This would be true for all constitutional amendments. Since Dismas is not the Federal government or a federal agency, Defendants’ alleged actions do not trigger any constitutional implications. The Plaintiff even admits that Dismas is a private non-profit corporation known as a CCC Contractor and is not part of the U.S. Federal Government. (Docket 90, page 1). Therefore, the Defendants are entitled to summary judgment on all Federal and Constitutional causes of action. 7
  • 8. Case 1:11-cv-20120-PAS Document 91 Entered on FLSD Docket 01/12/2012 Page 8 of 12 a. First Amendment The Plaintiff cannot prove that any Defendant interfered with the Plaintiff’s freedom of religion or speech. The Plaintiff claims he was not permitted to attend religious services. The Plaintiff was also not permitted to attend religious services outside of a 5 mile radius of his confinement as per Federal Bureau of Prison guidelines. However, he fails to provide any proper evidence demonstrating that he asked to attend religious services outside the five mile radius and that his request was denied. Accordingly, Defendants are entitled to summary judgment on any theory of recovery under the First Amendment. b. Fourth Amendment Plaintiff contends that the search of his vehicle, after he was caught driving without permission, was improper. The Plaintiff forgets that at all material times he was serving out a prison sentence and remained under the custody of the Attorney General of the United States. Plaintiff agreed to follow the rules of the Attorney General, Federal Bureaus of Prisons and Dismas. These conditions included the Plaintiff’s consenting to searches of his person and vehicle. (Affidavit of Ana Gispert, Docket 83-2) Since the search of the vehicle was agreed to by the Plaintiff as a condition of his community center release and confiscation of contraband- unauthorized cell phone was proper (following a search of the Plaintiff’s vehicle after he admitted driving without authorization of Dismas), no violations of the Fourth Amendment occurred and the Defendants are entitled to summary judgment. c. Fifth and Fourteenth Amendments The Plaintiff cannot prove that he was deprived of due process by the Defendants. The Plaintiff, as is evidenced by the attachments to his response brief, did receive proper notice of his violation. Upon his return to the Federal Detention Center-Miami, the Bureau of Prisons held a 8
  • 9. Case 1:11-cv-20120-PAS Document 91 Entered on FLSD Docket 01/12/2012 Page 9 of 12 hearing attended by the Plaintiff. The Plaintiff was afforded his due process rights through Disciplinary Hearing which the Plaintiff lost. The Plaintiff was not subjected to “double jeopardy” by the Defendants. The Plaintiff was allegedly punished once for his violations by the Federal Bureau of Prisons, not Dismas. The punishment was that the Plaintiff remain disciplinary transferred to the Federal Detention Center-Miami to serve the remaining sixty eight days of his sentence. Plaintiff also appears to be alleging that his Due Process Rights were violated because he was not provided with BP-9 Forms by Dismas. (Docket 90, Response Brief, page 13) However, the failure to provide forms, which Dismas did not have, does not constitute a violation of due process, especially since a hearing was conducted by the Bureau of Prisons itself. Accordingly, the Defendants are entitled to summary judgment for any causes arising from violations of any due process rights. d. Eighth Amendment The Plaintiff alleges that his Eighth Amendment Rights were violated because he was subjected to cruel and unusual punishment. The Plaintiff fails to set forth any cruel or unusual punishment. In his response brief, the Plaintiff contends that he was forced to perform manual labor, constantly terrorized and intimidated, forced to do clean work and was not permitted to accept meals from his wife. (Docket 30, Response Brief, pages 14-15) However, the Plaintiff fails to provide any support for these allegations including descriptions of the alleged intimidation, humiliations, terrors and refusal of meals by his wife. Regardless, even if these events occurred, they do not constitute cruel and unusual punishment. Certainly, the Plaintiff, who was still serving a prison sentence cannot complain that being deprived a meal from his wife is cruel and unusual as inmates are not permitted home cooked meals. Accordingly, the Defendants are entitled to final summary judgment. 9
  • 10. Case 1:11-cv-20120-PAS Document 91 Entered on FLSD Docket 01/12/2012 Page 10 of 12 3. The Plaintiff has failed to appear for depositions, Defendants’ designated facts should be taken as established for purposes of this Motion for Summary Judgment as the Defendants’ claim and Plaintiff’s pleadings should be stricken. Defendants filed a Motion to Strike Plaintiff’s Pleadings for failing to appear for depositions. (Docket 78 and 89, which are incorporated as though fully set forth herein) Plaintiff’s failure to appear has inhibited Defendants ability to defend the case and oppose Plaintiff’s Motion for Summary Judgment. Plaintiff was set for his deposition on October 10, 2011. The deposition was cancelled at the request of the Plaintiff. The Plaintiff was reset for deposition on November 11, 2011 and again reset for deposition on December 5, 2011. The Plaintiff failed to appear for his depositions on November 11 and December 5, 2011. Despite the fact that the Plaintiff claims he has medical issues that prevent him from appearing for depositions, the Plaintiff was able to appear for mediation on November 1, 2011, prepare a Motion for Summary Judgment. (Docket 72-75) Further, the Plaintiff has been well enough to file additional briefs, including the 18 page single spaced brief, with case citations, to which this very Reply Brief is being filed. (Docket Numbers 86 and 90) Rule 37(d) deals with sanctions used when a party fails to cooperate in discovery and “allows the court to strike out pleadings and render default judgment against the disobedient party.” The Plaintiff’s failure to comply with the Rules of Civil Procedure merit striking his motion for summary judgment, directing that the designated facts of the Defendants be taken as established for purposes of the action, as the Defendants claim; prohibiting the disobedient party from supporting or opposing designated claims or defenses (including his Motion for Summary Judgment), prohibit the Plaintiff from introducing designated matters in evidence and dismissing his complaint. Accordingly, the Defendants Motion for Summary Judgment must be granted. 10
  • 11. Case 1:11-cv-20120-PAS Document 91 Entered on FLSD Docket 01/12/2012 Page 11 of 12 CONCLUSION For the reasons set forth above, the Defendants would move this Court for an Order granting all Defendants Final Summary Judgment and any further relief the Court deems just and proper. Respectfully submitted, EISINGER, BROWN, LEWIS, FRANKEL, & CHAIET, P.A. Attorneys for Defendants 4000 Hollywood Boulevard Suite 265-South Hollywood, FL 33021 (954) 894-8000 (954) 894-8015 Fax BY: /S/ David S. Chaiet____________ DAVID S. CHAIET, ESQUIRE FBN: 963798 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 12th day of January, 2012, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are authorized to receive electronically Notices of Electronic Filing. __/s/ David S. Chaiet_______________ DAVID S. CHAIET, ESQUIRE Florida Bar No. 963798 11
  • 12. Case 1:11-cv-20120-PAS Document 91 Entered on FLSD Docket 01/12/2012 Page 12 of 12 SERVICE LIST Traian Bujduveanu v. Dismas Charities, Inc., et al. Case No..: 11-20120-CIV-SEITZ/SIMONTON United States District Court, Southern District of Florida Traian Bujduveanu Pro Se Plaintiff 5601 W. Broward Blvd. Plantation, FL 33317 Tel: (954) 316-3828 Email: orionav@msn.com 12