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Document 102

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  • 1. !"#$%&&&()*(+,&+,(-./%%%01)23$45%&,+%%%645$7$8%14%9:/0%01);$5%,<=,>=+,&+%%%?"@$%&%1A%B 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’ ANSWER AND AFFIRMATIVE DEFENSES TO THE SECOND AMENDED COMPLAINT Defendants Dismas Charities, Inc., Ana Gispert, Derek Thomas and Lashanda Adams, (collectively “Defendants”) by and through their undersigned counsel, file their Answer and Affirmative Defenses of Traian Bujduveanu (“Plaintiff”) as follows: JURISDICTION AND VENUE 1. Denied. PARTIES 2. Upon information and belief, admitted. 3. Admitted. 4. Admitted that Dismas is a not for profit corporation operating community correction facilities, including one in Dania Beach, Florida, the remaining allegations are otherwise denied.
  • 2. !"#$%&&&()*(+,&+,(-./%%%01)23$45%&,+%%%645$7$8%14%9:/0%01);$5%,<=,>=+,&+%%%?"@$%+%1A%B 5. Admitted that Ana Gispert, Derek Thomas and Lashanda Adams are employees of Dismas’s Dania Beach Residential Reentry Center, the remaining allegations are otherwise denied. GENERAL ALLEGATIONS 6. Admitted that the Plaintiff was transferred from prison to Dismas’s Residential Reentry Center, the remaining allegations are otherwise denied. 7. Admitted that at the time of the events described, Ana Gispert was the Director of the Dania Facility and Mr. Thomas and Ms. Adams were employees, the remaining allegations are otherwise denied. 8. Denied. 9. Denied. 10. Denied. 11. Denied. 12. Denied. 13. Admitted that Plaintiff was placed on home confinement with conditions, the remaining allegations are otherwise denied. 14. Admitted that Plaintiff on October 13, 2010, violated the conditions of his placement at Dismas, the remaining allegations are otherwise denied. 15. Denied. 16. Denied. COUNT I-VIOLATION OF FIRST AMENDMENT RIGHTS 17. Defendants incorporate by reference and restate their prior responses. 2
  • 3. !"#$%&&&()*(+,&+,(-./%%%01)23$45%&,+%%%645$7$8%14%9:/0%01);$5%,<=,>=+,&+%%%?"@$%>%1A%B 18. Admitted that any improper requests were properly denied. 19. Denied. 20. Denied. COUNT II-VIOLATIONS OF FIFTH AMENDMENT RIGHTS 21. Defendants incorporate by reference and restate their prior responses. 22. Denied. 23. Denied. 24. Denied. COUNT III-VIOLATIONS OF FOURTEENTH AMENDMENT RIGHTS 25. Defendants incorporate by reference and restate their prior responses. 26. Denied. 27. Denied. 28. Denied. COUNT IV-NEGLIGENCE AND GROSS NEGLIGENCE 29. Defendants incorporate by reference and restate their prior responses. 30. Denied. 31. Denied. 32. Denied. 33. Denied. COUNT V-ABUSE OF PROCESS 34. Defendants incorporate by reference and restate their prior responses. 35. Denied. 36. Denied. 3
  • 4. !"#$%&&&()*(+,&+,(-./%%%01)23$45%&,+%%%645$7$8%14%9:/0%01);$5%,<=,>=+,&+%%%?"@$%<%1A%B COUNT VI-MALICIOUS PROSECUTION 37. Defendants incorporate by reference and restate their prior responses. 38. Denied. 39. Denied. 40. Denied. 41. Defendants deny any all allegations of liability, causation and damages. 42. Defendants deny any and all allegations not specifically admitted above. 43. Defendants demand trial by jury on all issues so triable as a matter of right by jury. AFFIRMATIVE DEFENSES 1. The Amended Complaint fails to state a cause of action against against any Defendant as the lawsuit is vague, fails to provide specific facts, dates and who was involved in what alleged action. 2. The Amended Complaint is barred, in whole or in part, pursuant to this Court’s Order issued on February 17, 2012, and March 15, 2012 (DE# 94 and 98). 3. The Amended Complaint is barred, in whole or in part, pursuant to the doctrines of res judicata, waiver, or estoppel. 4. In response to the Complaint, Defendants adopt their previously filed Motions for Summary Judgment. 5. As was set forth in the Court’s Orders of February 17, 2012 and March 15, 2012 (Docket numbers 94 and 98), all constitutional claims against Dismas have been dismissed with 4
  • 5. !"#$%&&&()*(+,&+,(-./%%%01)23$45%&,+%%%645$7$8%14%9:/0%01);$5%,<=,>=+,&+%%%?"@$%C%1A%B prejudice. Accordingly, any claims against Dismas are barred by res judicata and collateral estoppel. 6. The Amended Complaint fails to state a cause of action against any Defendant as the lawsuit is vague, fails to provide specific facts, dates and who was involved in what alleged action. 7. The Plaintiff cannot maintain a Bivens action against the individual Defendants Gispert, Adams and Thomas. 8. The Plaintiff cannot maintain a Fourteenth Amendment action against the individual Defendants Gispert, Adams and Thomas as they are not state actors. 9. In response to the Complaint, Defendants adopt their previously filed Motions for Summary Judgment as though they are fully set forth herein. 10. The Amended Complaint fails to set forth a cause of action for abuse of process as the Complaint does not describe any process that was abused. 11. The Amended Complaint fails to set forth a cause of action for malicious prosecution as the Complaint does not set forth any judicial proceeding that ended in the Plaintiff’s favor and fails to set forth the absence of probable cause as the Plaintiff was properly violated for driving without authorization. 12. The Amended Complaint fails to set forth the necessary proffer for a cause of action for punitive damages pursuant to Florida Statute 768.72 and this count needs to be dismissed. 13. The Amended Complaint fails to allege any duty owed to the Plaintiff to support a negligence or gross negligence count. 5
  • 6. !"#$%&&&()*(+,&+,(-./%%%01)23$45%&,+%%%645$7$8%14%9:/0%01);$5%,<=,>=+,&+%%%?"@$%D%1A%B 14. The Amended Complaint fails to set forth a cause of action for any constitutional violations. 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 3rd day of April, 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 6
  • 7. !"#$%&&&()*(+,&+,(-./%%%01)23$45%&,+%%%645$7$8%14%9:/0%01);$5%,<=,>=+,&+%%%?"@$%B%1A%B 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 7

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