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  • 1. IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA CASE NO.: 11-20120-CIV-SEITZ/SIMONTONTRAIAN BUJDUVEANU, Plaintiff,vs.DISMAS CHARITIES, INC., ANA GISPERT,DEREK THOMAS and LASHANDA ADAMS Defendants._________________________________________/ Plaintiff’s Objections to the Report and Recommendation Re: Defendants’ Motion to Dismiss Plaintiff Traian Bujduveanu provides this response containing a list of objections to theHonorable Judge Andrea M. Simonton’s report and recommendations re: Defendants’ Motion toDismiss, and asserts the following: I. Standard for Evaluating a motion to Dismiss I agree that Fed.R.Civ.P. 8(a)(2) requires that a pleading "shall contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." This is because "[t]he purpose of a modern complaint is to give opposing parties fair notice of the basis of the claim against them so that they may respond to the complaint, and to apprise the court of sufficient allegations to allow it to conclude, if the allegations are proved, that the claimant has a legal right to relief. " Monument Builders v. American Cemetery Assn, 891 F.2d 1473, 1480 (10th Cir.1989), cert. denied, 110 S.Ct. 2168 1
  • 2. (1990) (quoting in part Perington Wholesale, Inc. v. Burger King Corp., 631 F.2d 1369,1371 (10th Cir.1979)); see also Conley v. Gibson, 355 U.S. 41, 47 (1957). Furthermore,the judge goes on to make the case that, “recitals of the elements of a cause of action,supported by mere conclusory statements, do not suffice.” This statement in addition toothers propounded by the Judge regarding the lack of material facts in the Plaintiff’sinitial pleadings leads the Plaintiff to question whether Judge Simonton actually read theentire record and all the documents submitted, rather than the just the Plaintiff’s initialfilings. I acknowledge that my initial filings were not the most articulate, and incompliance with every single rule of civil procedure, as this has been a learning processfor me. However, Defendant Anna Gispert’s admission of not having provided BP-9forms to Movant, provides the Movant no means of documenting the abuses of process,abuses of Constitutional rights and civil liberties on the part of the Defendants, and evengoes to the extent of providing the Movant very little material documentation of hisexperiences at the halfway house. However, it was their intention all along to deny theMovant an opportunity to ever have a legitimate opportunity to defend himself both intheir nonexistent in-house judiciary proceedings, when he faced the Federal Bureau ofPrisons prior to being sent back to prison, and currently in his civil action against theDefendants. I understand that the judicial process is hindered by the lack of documentedfacts that prove the assertions made by the plaintiffs, yet I ask that you not fall into thetrap that the Defendants have set when they denied my ability to document mygrievances. Even if I was given the opportunity to make sure that my initial pleadingswere in compliance with the Federal Rules of Civil procedures rules 8a, the fact of thematter, is that the Defendant’s conspiracy to cover up their wrong doings by fabricating 2
  • 3. the record and denying me my constitutional right to address and document my grievances, leaves me with very little means of providing material documentation of my experiences at Dismas House Charities. My accusations should not be seen as “wildly implausible” because my initial complaint and pleadings were my first opportunity to present my grievances, without a means of making reference to supporting documentation, i.e. BP-9 forms, testimony by fellow inmates, and in addition the record or any proceedings which took place. Essentially, I ask that the court does not view my lack of fact as being “wildly implausible allegations in a pro se complaint that should be considered untrue,” however it should be seen as the Defendant’s attempt of clouding the court’s judgment by preventing the Plaintiff the ability to provide sufficient proof of his claims.II. Legal Analysis a. The Fourth Amendment The Defendants attempt to make the case that as a condition of the Plaintiff’s parole that he consented to “searches of his person and vehicle”. However, the Plaintiff made it clear to individuals at Dismas House that he was simply operating a family vehicle, to fulfill his required reporting requirements. Although the individuals in the halfway house had, right to search his person upon entering the building, the Supreme Court has found that, his family members have a protected interest against their property being subject to searched and seizure. "When the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that the permission to search was obtained from a third party 3
  • 4. who possessed common authority over or other sufficient relationship to the premises oreffects sought to be inspected. United States v. Matlock, 415 U. S. 164, 171 (1974). Ihave acknowledged that, while a probationers right of privacy may be justifiablydiminished during the period of probation (see Inman v. State, 124 Ga. App. 190 (2) (183SE2d 413) (1971)), "probationary status does not convert a probationers family, relativesand friends into second class citizens. . . . These people are not stripped of their right ofprivacy because they may be living with a probationer or [s]he may be living with them."State v. Fogarty, supra at 151. The Supreme Court of Montana, the only court in thecountry to address the ramifications of the warrantless search condition of probation onthird parties living with a probationer, concluded that a search warrant based on probablecause must be obtained before a probationers residence or property may be searched "sothat the legal interests of innocent third persons can be adequately protected. . .Moreover, the judge makes the case that because Adams was not directly involved in thesearch that she should not be held liable. The named defendants although may not havebeen the ones that conducted the search and seizure of the vehicle and property, were in aposition to return the property when finding out that they were not searching theplaintiff’s personal property, and thus didn’t get the necessary permission to search andseize his family’s property. In this case respondeat superior takes effect in that Adams,Thomas, and Gispert are directly responsible for the actions of their employees, and theyare should be even more liable for choosing to cover up their actions rather thanaddressing these actions and acting within the confines of the law. b. First Amendment Retaliation Claim 4
  • 5. Judge Simonton attempts to argue that the plaintiff fails to state a claim for retaliationunder the First Amendment. This seems similar to the Defendant’s claim when theynoted that, “he (the movant) fails to provide any proper evidence demonstrating that heasked to attend religious services outside a five mile radius and that his request wasdenied”. On 7/29/2010 the Movant made a request to Lashonda Adams, in which herequested, and was denied the ability to attend a Romanian Orthodox Church located onState Road 7, in Pembroke Pines, to which Ms. Adams replied that you are only allowedto travel within five miles of the facility for religious services. In fact, the Movant made,2 other documented requests on 8/4/2010 and on 10/6/2010, all of which were denied byMs. Adams. All parties including the defendants are aware of the special exception to the(5) mile rule which states that, “an exception to the rule will only be made when yourstated denomination of worship cannot be located within five miles of the program”. c. Cruel and Unusual Punishment under Eight AmendmentThe Magistrate errors in her assumption that the Plaintiff’s claim for cruel and unusualpunishment centers merely around the confiscation of his property, but goes much deeperand in fact, would be seen as egregious in many third world countries with less respectfor human rights and civil liberties. In analyzing claims of Eighth Amendmentviolations, the courts must look at discrete areas of basic human needs. As we haverecently held, " (A)n institutions obligation under the eighth amendment is at an end if itfurnishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medicalcare, and personal safety." Wright v. Rushen, 642 F.2d 1129, 1132-33 (9th Cir.1981)(citation omitted). 682 F.2d at 1246-47. When analyzing whether Dismas charitiesviolated their obligation to respect the Plaintiff’s eight amendment rights they went 5
  • 6. beyond a confiscation of his property, simply taunting, and submission to menialactivities. Looking back at the some of our previous discussions of Negligence in previouspleadings, it is clear that although the defendants attempt to paint themselves as caringand compassionate, going as far to point out that they made the recommendation that theMovant not participate in any manual activities. However, Ana Gispert, is on record asstating that she believes that “dusting qualifies”, thus giving him a directive to performmanual labor. After days and days of harassment in Ms. Gispert’s absence, the Movantsent an email an email within this Dismas Charities internal system indicating, “… painand discomfort in my liver”. Yet again, in a letter dated 10/19/2010, the plaintiff wrote,“this letter is to advise you that today, 10/19/2010, 10:50 A.M., I was called to the frontdesk and told that I should vacuum the room for him, in an attempt to intimidate me.” Hegoes on to state that, “… as a result of all actions against me, for the last week, by Mr.Thomas and his staff, my liver has swollen and I do experience pain”. If forcing anindividual that Defendants had previously had made the case to the Bureau of Prisons tonot participate in any manual labor, to dust and vacuum then is not a clear case of crueland unusual punishment, and thus a violation of the duty to provide adequate medicalcare and personal safety, there is no justice in the world. Even with the Defendantsadmitting to the fact that they were aware of his medical conditions, the Defendants haverefused to address the Plaintiff’s claim that he was not provided meals that were diabeticfriendly, and was given disciplinary action for an incident where is wife was deliveringfood as a result of him not receiving adequate nutritional from the halfway house,something that they are required by law to do. This violates Department of Correction 6
  • 7. Policies in which, it is mandated that each institution’s food service program offersnutritionally balanced, appetizing meals. Special Food and Meals, 28 C.F.R. § 547.20 andProgram Statement 4700.05, Food Services Manual, provide that medical diets beavailable to inmates who require such diets. The Movant’s research has found howeverthat, a prison official violates a prisoners Eighth Amendment rights, and is deemednegligent if he/she is deliberately indifferent to the prisoners serious medical needs. SeeEstelle v. Gamble,429 U.S. 97, 103-04, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). d. Fifth Amendment Due Process Claim Let’s take a moment to address the Magistrates erroneous claim that Plaintiff fails toset forth any facts demonstrating a false imprisonment or arrest by any specificDefendant. As stated in Movant’s previous brief, it was the direct and indirect actions ofthe Defendant which lead to the confinement of the Movant. Causation is, of course, arequired element of a false imprisonment. See Oviatt v. Pearce, 954 F.2d 1470, 1474 (9thCir. 1992). A probation/ parole officer need not actually use force to detain aprobation/parolee illegally. Although false imprisonment usually follows false arrest,false imprisonment may take place even after a valid arrest. In all of the Reponses and briefs from the Defendants, they claim that that the Movantwas charged introducing contraband to the facility, when in fact he was charged with aviolation 108, which specifically, “Possession, Manufacture, or introduction of ahazardous tool (Tools most likely to be used in an escape or escape attempt or to serve asa weapon capable of doing of doing serious bodily harm to others; or those hazardous toinstitutional security or personal safety”, to include that of a cell phone. First and 7
  • 8. foremost, a cell phone unless used a detonation device cannot be seen as threat topersonal or institutional safety. At best this alleged violation should have been chargedas a Code 305, “Possession of anything not authorized for retention or receipt by theinmate, not issued to through regular channels. Now, why would the Defendants’increase the charges against the plaintiff such that they are more severe? The answer tothat question is simple. A violation 108 would have required the Plaintiff’s removal fromthe facility back to federal prison, whereas if he was charged appropriately, in-housesanctions would have sufficed. Going back to the case law and arguments asserted in ourprevious response, a police officer may be held to have “initiated” a criminal proceedingif he knowingly provided false information to the prosecutor or otherwise interfered withthe prosecutor’s informed discretion. See, Reed, 77 F.3d at 1054; Torres, 966 F.Supp. at1365. In such cases, “an intelligent exercise of the ... [prosecutor’s] discretion becomesimpossible,” and a prosecution based on the false information is deemed “procured by theperson giving the false information.” However, a private citizen may be held liable forfalse arrest under § 1983 if he or she caused the plaintiff to be arrested by virtue of falsestatements he or she made to the police. Doby v. DeCrescenzo, 1996 U.S. Dist. LEXIS13175, *40 (E.D. Pa. Sept. 9, 1996). Thus, our claim is clear, the Defendants did notplace the Plaintiff in handcuffs, they did however provided false and misleadingstatements to the Bureau of Prisons such that their ability to levy justice was impairedand the Plaintiff was denied the privilege of the freedoms that come with havingcompleted a prison sentence and being afforded community monitoring in a halfwayhouse facility. 8
  • 9. Which leads us to address the Defendants’ second contention, the Plaintiff was underthe misguided impression that he was a “free man” during his time at Dismas. At nopoint did the Movant see himself as a free man during his time at Dismas, and theMovant operating an automobile while under the assumption that he was authorized to doso does not justify the Defendants’ claim. Let’s not mix apples with oranges, contrary tothe Defendants’ statements, the Movant was not a federal prisoner confined to a federalfacility, and thus could not be rearrested, he was a federal inmate afforded the privilegeof dwelling in a halfway house and home confinement due to his health. As we madeclear in our previous brief, the courts on the other hand have seen being on parole or inhalfway house as being more than just a privilege. The Court has found protected libertyinterests after an inmate is released from institutional confinement. In Morrissey v.Brewer, 408 U.S. 471 (1972), the Court recognized a parolees liberty interest inremaining conditionally free on parole: "[H]e can be gainfully employed and is free to bewith family and friends and to form the other enduring attachments of normal life. . . .[H]is condition is very different from that of confinement in a prison." Id. at 482. Relyingon Morrissey, the Court in Young v. Harper, 520 U.S. 143 (1997), held that an inmateenrolled in Oklahomas pre-parole program also had a protected liberty interest entitlinghim to due process before he could be removed from the program. There the pre-parolee"was released from prison before the expiration of his sentence. He kept his ownresidence; he sought, obtained, and maintained a job; and he lived a life generally free ofthe incidents of imprisonment." By virtue of the Defendants’ willful disregard forMovants right to this privilege, the plaintiff suffered damages and opportunity cost, for 9
  • 10. not being able to live not as free man, but as a man who has earned the privilege of beingfree of correctional institutional confinement. e. Double Jeopardy Yet again, the Magistrate makes the claim that the Plaintiff’s double jeopardyclaims should be dismissed with prejudice as the Plaintiff is unable to state a cause ofaction under this clause. Her justification for this assertion is United States v. Mayes,158 F 3d 1215 (11th Cir. 1998), in which the court examined a case in which prisonerscause over $3 million in property damage during a prison riot and were subsequentlypunished as part of the system as well as in criminal proceedings for the same offense.However, The sanctions against the appellants in this case were imposed pursuant to 28C.F.R. §§ 541.10-541.20 (1993). These regulations authorize "institution authorities toimpose discipline on those inmates whose behavior is not in compliance with Bureau ofPrisons rules." 28 C.F.R. § 541.10(a). Section 541.13 delineates the various types ofprohibited acts and groups them into categories based upon the seriousness of theinfraction. See 28 C.F.R. § 541.13, Table 3. The "Disciplinary Severity Scale" thendescribes the types of authorized sanctions that officials have discretion to impose basedupon the category into which the prohibited act falls. See 28 C.F.R. § 541.13, Tables 3-6.The regulations also set forth detailed procedural guidelines that institutional staff mustfollow when bringing disciplinary action against an inmate. See 28 C.F.R. §§ 541.14-541.19. It is obvious that the judges makes the error using a case that involves directcriminal conduct to justify her argument, in a case that does not involve direct criminalconduct. Thus it is clear that she should find a case in which an inmate was punished forcommitting a violation of bureau of prisons terms and rules and then is subsequently 10
  • 11. punished in a criminal proceeding, which is impossible, as such a case does not exist asthe idea of someone being sent back to prison for such a minor violation is ludicrous. f. False Arrest and Imprisonment. As stated in Movant’s previous brief, it was the direct and indirect actions of theDefendant which lead to the confinement of the Movant. Causation is, of course, arequired element of a false imprisonment. See Oviatt v. Pearce, 954 F.2d 1470, 1474 (9thCir. 1992). A probation/ parole officer need not actually use force to detain aprobation/parolee illegally. Although false imprisonment usually follows false arrest,false imprisonment may take place even after a valid arrest. In all of the Reponses andbriefs from the Defendants, they claim that that the Movant was charged introducingcontraband to the facility, when in fact he was charged with a violation 108, whichspecifically, “Possession, Manufacture, or introduction of a hazardous tool (Tools mostlikely to be used in an escape or escape attempt or to serve as a weapon capable of doingof doing serious bodily harm to others; or those hazardous to institutional security orpersonal safety”, to include that of a cell phone. First and foremost, a cell phone unlessused a detonation device cannot be seen as threat to personal or institutional safety. Atbest this alleged violation should have been charged as a Code 305, “Possession ofanything not authorized for retention or receipt by the inmate, not issued to throughregular channels. Now, why would the Defendants’ increase the charges against theplaintiff such that they are more severe? The answer to that question is simple. Aviolation 108 would have required the Plaintiff’s removal from the facility back to federalprison, whereas if he was charged appropriately, in-house sanctions would have sufficed. 11
  • 12. Going back to the case law and arguments asserted in our previous response, a policeofficer may be held to have “initiated” a criminal proceeding if he knowingly providedfalse information to the prosecutor or otherwise interfered with the prosecutor’s informeddiscretion. See, Reed, 77 F.3d at 1054; Torres, 966 F.Supp. at 1365. In such cases, “anintelligent exercise of the ... [prosecutor’s] discretion becomes impossible,” and aprosecution based on the false information is deemed “procured by the person giving thefalse information.” However, a private citizen may be held liable for false arrest under §1983 if he or she caused the plaintiff to be arrested by virtue of false statements he or shemade to the police. Doby v. DeCrescenzo, 1996 U.S. Dist. LEXIS 13175, *40 (E.D. Pa.Sept. 9, 1996). Thus, our claim is clear, the Defendants did not place the Plaintiff inhandcuffs, they did however provided false and misleading statements to the Bureau ofPrisons such that their ability to levy justice was impaired and the Plaintiff was deniedthe privilege of the freedoms that come with having completed a prison sentence andbeing afforded community monitoring in a halfway house facility.The judge makes another fundamental error when she likens, “the Plaintiffs residence atDismas Charities is considered the functional equivalent of incarceration, he cannotestablish a liberty interest in remaining there (p. 47)”. As we argued in our previousbriefs, the courts on the other hand have seen being on parole or in halfway house asbeing more than just a privilege. The Court has found protected liberty interests after aninmate is released from institutional confinement. In Morrissey v. Brewer, 408 U.S. 471(1972), the Court recognized a parolees liberty interest in remaining conditionally free onparole: "[H]e can be gainfully employed and is free to be with family and friends and toform the other enduring attachments of normal life. . . . [H]is condition is very different 12
  • 13. from that of confinement in a prison." Id. at 482. Relying on Morrissey, the Court inYoung v. Harper, 520 U.S. 143 (1997), held that an inmate enrolled in Oklahomas pre-parole program also had a protected liberty interest entitling him to due process before hecould be removed from the program. There the pre-parolee "was released from prisonbefore the expiration of his sentence. He kept his own residence; he sought, obtained, andmaintained a job; and he lived a life generally free of the incidents of imprisonment." Byvirtue of the Defendants’ willful disregard for Movants right to this privilege, the plaintiffsuffered damages and opportunity cost, for not being able to live not as free man, but as aman who has earned the privilege of being free of correctional institutional confinement.There is nothing legal or permissible about trumping up charges such that they cause anoutcome that suited the Defendants’ inherent disgust and dislike for Movant, in that thereare documented cases of State Attorneys that have been convicted of criminal charges forpadding files with false charges and arrests. g. Assault and Battery. The Magistate again argues that there is no way that the plaintiff can make aclaim for assault and battery as there is no statements of fact against a particulardefendant. I agree for the simple fact that, “no such record of the assaults and battery thattook place as the Defendant’s refused to provide the Movant with and means ofdocumenting said actions.” Anna Gispert’s admission of not having provided BP-9forms to Movant, provides the Movant no means of documenting the abuses of process,abuses of Constitutional rights and civil liberties on the part of the Defendants, and evengoes to the extent of providing the Movant very little material documentation of his 13
  • 14. experiences at the halfway house, which was the intention of the Defendants’ all along,essentially concealing and covering up their misconduct. As we argued previously thecourts have made it clear that, in Allen v. Mc Morris, No. 4:06-cv-810 SNL, 2007 WL172564, at *2 (E.D. Mo. Jan. 19, 2007) “holding allegation that prisoner could not getgrievance policy or forms barred summary judgment for defendants”, and because of thisCourt has an obligation to deny the Defendant’s request for Dismissal, and the Movantshould be awarded summary judgment. h. Malicious Prosecution The fact of the matter is that “All federal claims for malicious prosecution areborrowed from the common law tort ... [which] imposes liability on a private person whoinstitutes criminal proceedings against an innocent person without probable cause for animproper purpose. The federal claim under [42 U.S.C.] section 1983 for maliciousprosecution differs from the state civil suit in that it requires that state officials actingunder color of law institute the criminal proceedings against the plaintiff and therebydeprive him of rights secured under the Constitution." Torres v. Superintendent of Police,893 F.2d 404, 409 (1st Cir.1990).The Plaintiff was not guilty of introducing hazardous materials into a correctionalfacility, as his cell phone was simply contraband, and not something that could be used toescape, or harm the welfare of those in the facility. Moreover, this cellphone wascontraband for individuals staying at Dismas facilities, and were not contraband for anindividual on home confinement. Furthermore, the cell phone in his vehicle, might in thecase of drug possession constitute material possession, however given the fact that he was 14
  • 15. not attempting to introduce it into the facility on his person, and was in fact in the glovecompartment of his vehicle unbeknownst to the Movant does not constitute actual ormaterial possession. The plaintiff was under the assumption that he was able to drive,and his ignorance of the process does not take away from his guilt, but him operating amotor vehicle is not the reason that he was taken back to prison, as that would have beensomething addressed in-house through Dismas correctional procedures, but rather it wasthe charge having introduced hazardous material that constituted his denial of his parole.Given the fact that the Defendants’ were searching for any reason to have Movant’sparole revoked, due to their personal hatred for Plaintiff and what he stood for, actingunder the color of the law, Defendants intentionally mis-indicted Plaintiff, thusconstituting the Movant’s claim for malicious prosecution, and consequently deprivinghim of rights secured under the Constitution, as he had served his debt to society inprison confinement thus earning him the privilege of parole. The Defendants want the Movant to address all the individual elements ofmalicious prosecution because they are aware their actions denied the Movant the abilityto show how alleged conduct deprived him of liberty, by a distortion and corruption ofthe processes of law, i.e., falsification of evidence, mischarging him with violations thatwhere much greater than his actions, and other egregious conduct namely the denial ofdocuments necessary to ensuring due process, resulting ultimately in the denial andrevocation of his parole, and it is for this reason that Movant should be awarded summaryjudgment, and the Defendant’s motion to dismiss should be denied. i. Abuse of Process 15
  • 16. Both the Defendants and the Magistrate make the claim that for Plaintiff to support acause of action for abuse of process, “the Plaintiff must prove that the process was usedfor an immediate purpose other than which it was designed”. These processes andprocedures put in place by the Department of Corrections where not put into place todeny the Plaintiff’s rights and privileges, and the Movant further asserts that theseprocedures and processes were not put into place to cover up the Defendants’ willfulmisconduct and misdoings. The Defendants are basically asserting that because theirfabrication of documents, untruthful statements, and padded files achieves the purpose ofpunishing the defendant, that it is justified. The fact of the matter is that an abuse ofprocess occurs when there, “is a cause of action in tort arising from one party making amalicious and deliberate misuse or perversion of regularly issued court process (civil orcriminal) not justified by the underlying legal action” (Wolff v. McDonnell, 418 U.S.539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)). This is what has occurred in the case ofthe Plaintiff, and the Movant is so sure of assertion, that he challenges the Defendants toproduce documents that are in Sentry entered and stamped with the proper signatures anddates. The Plaintiff and the Defendants both know that that these forms do not exist asthey would have been documented as evidence of compliance with due process andlawful arrest by the Defendants. Again, all that has been provided are fabricateddocuments, and Plaintiff has in his previous response statement provided exhibits ofinstances in which employees admonishing others to fabricate documents. If theMovant’s claims to this end are, “unsubstantiated and self-serving” as the Defendantsassert in their most recent response brief, then the Defendants should have no troubleproviding evidence of said documents being entered into the Sentry system that are 16
  • 17. compliance with guidelines from the National Archives and Records Administration andthe CCM, rather than the documents they have provided that are wrought with theDefendants’ mistakes and inaccuracies as a result of their haste to cover up theirmisdeeds. j. Negligence and Gross Negligence The Magistrate argues that, “although the Plaintiff has stated why he believes theDefendants were negligent, he has not stated how any of the Defendants breached a dutythey owed to him or that any of their breaches were the cause of his damages, nor has hestated what damages resulted from any breach of their duty. However, the Plaintiff madesure that a complete rundown of his medical condition was provided to the defendants,and it was for that reason that they recommended initial an home confinement, in light ofhis doctors recommendation against any sort of manual labor. However, Ana Gispert,has been placed on record as giving him directives go against doctors orders when shestated that, that she believes that “dusting qualifies”, thus giving him a directive toperform manual labor. After days and days of harassment in Ms. Gispert’s absence, theMovant sent an email an email within this Dismas Charities internal system indicating,“… pain and discomfort in my liver”. Yet again, in a letter dated 10/19/2010, theplaintiff wrote, “this letter is to advise you that today, 10/19/2010, 10:50 A.M., I wascalled to the front desk and told that I should vacuum the room for him, in an attempt tointimidate me.” He goes on to state that, “… as a result of all actions against me, for thelast week, by Mr. Thomas and his staff, my liver has swollen and I do experience pain”.The Movant went on to request a BP-9 form in the same letter, and did so 5 times within 17
  • 18. the correspondences within the Exhibit B, in addition to countless verbal request for these forms. It is clear that from just the internal correspondences alone, that the Defendants breached their duty, and their denial of the BP-9 form was only an attempt to prevent any further documentation of the violations of breach of duty and the obvious damages that resulted from the harassment, forced manual labor, that exacerbated the Movant’s medical condition, of which the Defendants aware of the damage being cause, as evident in Mrs. Gispert’s promise to address the issue with Mr. Thomas. Therefore, the Defendants’ argument that plaintiff’s motion for summary judgment is, “devoid of any proper facts supporting any negligence, claims of forced manual labor, constantly terrorized and intimidated, and permitted to accept meals from his wife”, is yet another diversion from the truth as proof of the negligent acts on the part of the defendant, and the direct and proximate damages that resulted to the plaintiff are documented in Dismas Charities own internal messaging system. In the Plaintiff’s previous response to Defendants’ motion for summary judgment he asserted that, a prison official violates a prisoners Eighth Amendment rights, and is deemed negligent if he/she is deliberately indifferent to the prisoners serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 103-04, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Deliberate indifference encompasses only unnecessary and wanton infliction of pain repugnant to the conscience of mankind. See id.at 104-06, 97 S.Ct. 285. "Subjective recklessness," as used in the criminal law, is the appropriate test for deliberate indifference. To incur liability under § 1983, an individual must be personally involved in the deprivation of a persons constitutional rights. See Lozano v. Smith,718 F.2d 756, 768 (5th Cir.1983).III. Conclusion 18
  • 19. Therefore, for the reasons stated above, we ask that you review the entire record andnot just the Plaintiff’s initial pleadings, and deny the Defendant’s request fordismissal, and concurrently make a recommendation for Summary Judgment in favorof the Plaintiff. If not then, the Plaintiff should be given an order to file an amendedcomplaint such that we are able to fix our violations with Federal Rules of CivilProcedure rule 8 and 10. Date: February 20th, 2012 Respectfully Submitted, ______________________________ TRAIAN BUJDUVEANU, PRO SE LITIGANT 19