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  • 1. Case 1:11-cv-20120-AMS Document 103 Entered on FLSD Docket 04/12/2012 Page 1 of 25 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 SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT AND INCORPORATED MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Pursuant to this Court’s March 12, 2012 Order (Docket Number 98), Defendants Dismas Charities, Inc., Ana Gispert, Derek Thomas and Lashanda Adams, incorrectly identified as Adams Leshota, (collectively “Defendants”) by and through their undersigned counsel, pursuant to Federal Rule of Civil Procedure 56 and Local Rule 7.5, file their Supplemental Motion for Summary Judgment and Incorporated Memorandum of Law in Support of their Motion for Summary Judgment against Traian Bujduveanu (“Plaintiff”) as follows: The Defendants incorporate, as though fully set forth herein their prior Motion to Strike Plaintiff’s Pleadings for Failure to Appear for Deposition, Motions for Summary Judgment, Prior Response and Reply Briefs to Motions for Summary Judgment, Statement of Undisputed Facts and Orders of the Court (Docket Numbers 78, 83, 83-1, 83-2, 88-1, 91 94 and 98)
  • 2. Case 1:11-cv-20120-AMS Document 103 Entered on FLSD Docket 04/12/2012 Page 2 of 25 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON INTRODUCTION Plaintiff, a former Federal Inmate, filed a lawsuit against his residential reentry center, Dismas, and three of its employees, Gispert, Thomas, and Adams. The Amended Complaint (Docket 101) contains 40 paragraphs of unsupported and vague allegations, three alleged federal theories of recovery (Violations of the First, Fifth and Fourteenth Amendments), and three alleged state law theories of recovery (Abuse of Process, Negligence and Malicious Prosecution)—all arising from his violation of a Bureau of Prison’s condition to not drive an automobile or posses a cell phone, which caused him to be transferred from Dismas back to a Federal Prison to complete the remaining 81 days of his Federal Prison sentence. Despite the fact that he was ultimately released from Federal custody, the Plaintiff seeks to exact his personal vendetta and revenge upon Defendants and the prison system through this frivolous lawsuit. While Defendants would have filed another Motion to Dismiss, the Court ordered Defendants to answer. SUMMARY OF ARGUMENT Plaintiff was transferred to Dismas’ Dania facility as a transition point from federal prison system back to into the community. Dismas, as a residential reentry center, assists inmates in employment, counseling, and other matters to allow them to become productive, contributing individuals in their families and communities upon release. Due to health issues, Plaintiff, after approval from the Federal Bureau of Prisons, was transferred from Dismas’ Dania facility to home confinement subject to the terms and conditions of his initial entry into the facility as mandated by the Federal Bureau of Prisons. 2
  • 3. Case 1:11-cv-20120-AMS Document 103 Entered on FLSD Docket 04/12/2012 Page 3 of 25 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON These conditions included the Plaintiff’s agreement not to drive without the permission or consent of Dismas and not to possess contraband, including cell phones. When the Plaintiff drove to Dismas and was found to be in possession of a cell phone in the car, Dismas 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, where he subsequently served out the last 81 days of his federal prison sentence after the Bureau of Prisons independently found Plaintiff guilty of the violations. As an inmate still under sentence, the Federal Bureau of Prisons (“BOP”), not the Defendants, made all decisions concerning his custodial placement. After his violations of rules while at Dismas’ facility, the BOP decided to remove him from the program and he was returned by the BOP (via the U.S. Marshall service) to a federal prison to serve out the remainder of his sentence. Plaintiff, therefore, fails to state a cause of action and all Defendants must be awarded summary judgment. STATEMENT OF UNDISPUTED FACTS Defendants filed a separate Statement of Undisputed Facts and Affidavit of Ana Gispert, which is incorporated as though fully set forth herein. (Docket 83-1 and 83-2) ARGUMENT AND CITATION TO AUTHORITY 1. The Plaintiff cannot maintain any Federal Constitutional Action against Dismas. The Plaintiff in Counts I, II and III has sued Dismas for Constitutional Rights violations under the First, Fifth and Fourteenth Amendments. With respect to Dismas Charities, Inc., even if Dismas was acting under federal law, the Plaintiff is unable to pursue his constitutional claims against Dismas since the Supreme Court has unequivocally held that a private prison is not liable 3
  • 4. Case 1:11-cv-20120-AMS Document 103 Entered on FLSD Docket 04/12/2012 Page 4 of 25 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON under Bivens Correctional Services Corp., v. Malesko, 534 U.S. 61 (2001). Therefore, as the Court previously ruled (Docket Number 94, p. 15 and 25-26) all constitutional claims asserted against Dismas must be dismissed with prejudice. In Correctional Services Corp., v. Malesko, 534 U.S. 61 (2001), the United States Supreme Court expressly held that Bivens liability could not reach private prison entities such as Dismas Charities, even if that entity was operating under color of federal law. In Malesko, the Supreme Court concluded that a Bivens action was not available against the private prison entity for several reasons, but most notably because the purpose of Bivens is to “deter individual federal officers from committing constitutional violations.” Id. at 70. The Court cited to its prior ruling in FDIC v. Meyer, 510 U.S. 471 (1994) and reiterated that “the threat of a suit against an individual’s employer was not the kind of deterrence contemplated by Bivens. Id. Thus, the Court surmised, “if a corporate defendant is available for suit, claimants will focus their collection efforts on it, and not the individual directly responsible for the alleged injury.” Id. at 71. The Court, therefore, concluded that the plaintiff in that action could not maintain a Bivens action against the private prison entity, notwithstanding the fact that the Court implicitly accepted that the entity was operating under color of law. Similarly, in this action, there is no dispute that Dismas Charities is an otherwise private entity that is operating a halfway house which is the subject of the Plaintiff’s claims raised under Bivens. Thus, pursuant to Malesko, the Plaintiff is absolutely foreclosed from bringing a Bivens action against Dismas and those claims must be dismissed against Dismas Charities, with prejudice in accordance with the Court’s prior rulings and Federal case law. 4
  • 5. Case 1:11-cv-20120-AMS Document 103 Entered on FLSD Docket 04/12/2012 Page 5 of 25 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON 2. The Plaintiff cannot maintain a Bivens or Fourteenth Amendment Claim against Gispert, Adams and Thomas. The Plaintiff claimed that his Fourteenth Amendment due process rights were violated by Gispert, Adams and Thomas. The Fourteenth Amendment states, in relevant part, that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” As none of the Defendants are state actors, and the Fourteenth Amendment applies only to state actors, the Fourteenth Amendment is not applicable. Accordingly, all Fourteenth Amendment claims must be dismissed with prejudice. Similar to Dismas, the Plaintiff cannot maintain Bivens actions against the individual Defendants for alleged Constitutional violations. With respect to Dismas Charities, Inc., even if that entity is acting under Federal law, the Plaintiff is unable to pursue his constitutional claims against that entity since the Supreme Court has unequivocally held that a private prison is not liable under Bivens. Correctional Services Corp., v. Malesko, 534 U.S. 61 (2001). Accordingly, the Plaintiff should not be able to maintain a Bivens claim against employees of a private prison. The alleged actions of Gispert, Adams and Thomas (which are denied) were not committed by a federal officer and did not arise under federal law. Gispert, Adams and Thomas are clearly not federal officers. Second, their alleged actions listed above did not arise under Federal law. A “close nexus” exists when the action results (a) from “the [s]tate’s exercise of coercive power,” (b) when the state gives either significant overt or covert encouragement to the action, (c) when a 5
  • 6. Case 1:11-cv-20120-AMS Document 103 Entered on FLSD Docket 04/12/2012 Page 6 of 25 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON private actor willfully participates in “joint activity with the [s]tate or its agents,” (d) when the action is controlled by an “agency of the state,” (e) when the state delegated a public function to the private actor, (f) when the action is “entwined with governmental policies,” or (g) when government is “entwined in [the private actor’s] management or control.” Brentwood Academy v. Tenn.Secondary School Athletic Ass’n, 531 U.S. 288, 296 (2001). However, when the state “mere[ly] approv[es] [of] or acquiesce[s]” in private action, there is no close nexus sufficient to constitute state action. See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52 (1999) In the Amended Complaint, Plaintiff alleges that the individual Defendants terrorized the Plaintiff with regards to his medical condition, made him perform cleaning jobs, prevented him from obtaining medical treatment, discriminated against him because he was a foreigner and would not let him attend Church services. In light of these allegations, the Plaintiff failed to allege or prove the sufficient nexus as these alleged actions did not arise under Federal law. In addition, there is a split among the Circuit Court of Appeals as to whether the employees of a private prison qualify as federal actors for purpose of establishing Bivens liability. In Holly v. Scott, 434 F.3d 287, 293-94 (4th Cir. 2006), the Fourth Circuit held that the employees of a private corporation operating prisons that contracted with the federal government are not federal actors because “correctional facilities have never been exclusively public,” meaning that they are not performing a public function that would create a close nexus between them and the federal government. Holly, 434 F.3d at 293 (quoting Richardson v. McKnight, 521 U.S. 399, 405 (1997)). In Holly, the Fourth Circuit also stated that there was no indication the government had a stake in the corporation, that federal policy was involved in the violation, or that the employees in question “colluded with federal officials in making the relevant decisions.” 6
  • 7. Case 1:11-cv-20120-AMS Document 103 Entered on FLSD Docket 04/12/2012 Page 7 of 25 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON 434 F.3d at 292-93. Furthermore, in Holly, the Fourth Circuit also noted that the cases in which the Supreme Court has extended Bivens liability all involved “individual federal officers” and claimed it would not serve the purpose of Bivens, which is to deter “individual federal officers,” by classifying the employees of private actors acting under color of federal law as federal actors. 434 F.3d at 291 (quoting Malesko, 534 U.S. at 70). In this case, there are no allegations of collusion between the Federal government and the individual employees. In fact, the Plaintiff alleges that the Defendants were acting on their own accord. Therefore, Gispert, Adams and Thomas are entitled to summary judgment on the Constitutional claims. 3. The Plaintiff cannot maintain a cause of action under the First Amendment The Plaintiff claims the Defendants violated his First Amendment right to freedom of expression by prohibiting him from attending a Roman Orthodox Church located over five miles from Dismas, located in Dania Beach, Florida. The First Amendment states that “Congress shall pass no law . . .abridging freedom of speech,” which means that the government cannot “restrict expression because of its message, its ideas, its subject matter, or its content.” See United States v. Stevens, 130 S.Ct. 1577, 1584 (2010). Although the Supreme Court has acknowledged that a Bivens cause of action may be alleged against federal officers for retaliation in the First Amendment context, see Hartman v. Moore, 547 U.S.250, 256 (2006), in the case at bar, the Plaintiff fails to state a claim for retaliation under the First Amendment. For a prisoner to state a First Amendment retaliation claim, the prisoner must establish: (1) that his speech or act was constitutionally protected; (2) that the defendants retaliatory conduct adversely affected the protected speech or act; and (3) that there is a causal connection 7
  • 8. Case 1:11-cv-20120-AMS Document 103 Entered on FLSD Docket 04/12/2012 Page 8 of 25 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON between the retaliatory actions and the adverse effect on the speech or act. Douglas v. Yates, 535 F.3d 1316, 1321 (11th Cir. 2008). In this case, the Plaintiff cannot prove that his rights under the First Amendment were violated. Plaintiff concedes that he cannot attend a house of worship more than five miles from the facility. Exceptions can be made if the denomination of worship cannot be located within five miles of the program. Plaintiff claims that Gispert and Adams prevented him from attending a specific Romanian Orthodox Church on State Road 7, Pembroke Pines. As this Church was more than five miles away from Dismas, Defendants properly denied the request. It appears that the Plaintiff’s complaint is not that the Defendants did not permit him to attend a Romanian Orthodox Church but the specific Romanian Church he selected and wanted to attend. Since there are no allegations that the Defendants would not permit him to attend a Romanian Church that was closer to Dismas even if it was slightly more than five miles away, the Plaintiff cannot carry his burden of proof. See Green v. Mowery, 212 Fed. Appx. 918, 920 (11th Cir. 2006) (noting summary judgment appropriate on First Amendment retaliation claim where prisoner failed to identify specific grievance he filed related to discipline and failed to identify specific retaliation related to any grievance). Thus, even taking the Plaintiff’s allegations as true, the Plaintiff has failed to state a claim for First Amendment retaliation under the facts as alleged in the Amended Complaint The Defendants did not prohibit the Plaintiff from worshiping in his chosen denomination. The Defendants merely would not approve his request to worship at a specific church as opposed to his right to worship at all. Accordingly, his freedom of religion was not violated. 8
  • 9. Case 1:11-cv-20120-AMS Document 103 Entered on FLSD Docket 04/12/2012 Page 9 of 25 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON Accepting the allegation in the Amended Complaint as true, the Defendants did not prohibit the Plaintiff from attending services at a Romanian Orthodox Church. They simply would not let him attend services at a specific Church in Pembroke Pines that he unilaterally selected as opposed to not permitting him to worship at all. The Plaintiff confuses the right to worship at a Romanian Orthodox Church with worshipping at a Romanian Orthodox Church of his choosing. The Plaintiff admittedly did not ask to worship at a Romanian Orthodox Church closer to Dismas. Plaintiff only claims he was not permitted to attend a specific Church as opposed to being able to worship at any Romanian Orthodox Church. Absent proof that the Defendants would not permit him to worship at a Church closer to Dismas, the Plaintiff’s First Amendment claims fail legally and factually. 4. The Plaintiff cannot maintain a cause of action for Violations of the Fifth Amendment. The Plaintiff claims that his transfer from the halfway house program back to prison violated his Fifth Amendment Rights. The Fifth Amendment of the United States Constitution provides in relevant part that no person shall be deprived “of life, liberty, or property, without due process of law.” U.S. Const. Amendment V. Procedural due process generally requires that a person with a constitutionally protected liberty or property interest receive “notice and an opportunity to be heard” before the government deprives him of such liberty or property. Wolff v. McDonnell, 418 U.S. 539, 558 (1974). Thus, with any procedural due process challenge, a court must first determine whether the injury claimed by the plaintiff is within the scope of the Due Process Clause. Kirby v. Siegelman, 195 F. 3d 1285 (11th Cir. 1999) (citing Bass v. Perrin, 170 F.3d 1312, 1318 (11th Cir. 1999)). 9
  • 10. Case 1:11-cv-20120-AMS Document 103 Entered on FLSD Docket 04/12/2012 Page 10 of 25 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON The Plaintiff in this case alleges, among other things, that his due process rights were violated when he was moved from the Dismas Charity halfway house and incarcerated in the Federal Detention Center. These allegations are vague and conclusory, and fail to identify any statutes or regulations that any of the individual Defendants purportedly failed to adhere to in violation of the Plaintiff’s due process rights. The Amended Complaint fails to specify which Defendant allegedly violated his rights and when the violation occurred. The Fifth Amendment states that “no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” The Plaintiff cannot prove that he was deprived of due process by the Defendants. The Plaintiff, as is evidenced by the attachments to the Complaint, did receive proper notice of his violation. The Disciplinary Report was even signed by the Plaintiff. The Plaintiff even wrote a response to the Report. The Plaintiff clearly violated a rule (no driving without permission of Dismas) that he was notified of and agreed to as part of his assignment to Dismas. The Plaintiff also agreed to abide by the rules, regulations and disciplinary procedures as condition of his halfway house release. (Docket 83-2, Affidavit of Ana Gispert, p. 7-15 and Exhibits 2, 3 & 4) 10
  • 11. Case 1:11-cv-20120-AMS Document 103 Entered on FLSD Docket 04/12/2012 Page 11 of 25 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON Plaintiff was transferred by the Bureau of Prisons into the custody of FDC Miami, where a subsequent hearing was held by the Bureau of Prisons concerning his possession of a cell phone and driving a vehicle without authorization. He was found guilty of these offenses at the hearing and required to serve the remaining 68 day balance of his initial sentence at FDC Miami. A copy of the Plaintiff’s United States Bureau of Prison Center Discipline Committee Report is attached to the Docket 83-2, Affidavit of Ana Gispert, p. 34, Exhibit 11. Accordingly, due process was afforded as the Plaintiff received notice of his violations and a hearing regarding his violations. At his hearing, the Plaintiff was found to be guilty by the Bureau of Prisons. The Plaintiff’s claims that the Bureau of Prisons, USPO and CCM Director did not know about his return to prison is clearly without merit. Obviously, the Federal Bureau of Prisons and USPO knew about Plaintiff’s return to prison as they returned him to Prison and housed him in Prison. Certainly, the Plaintiff is not alleging that he stayed in a Federal Prison without the Federal Bureau of Prison and the Director of the Facility knowing he was there. The Federal Bureau of Prisons clearly knew he was at a the federal facility as the Bureau of Prisons held a hearing concerning his possession of a cell phone and driving a vehicle without authorization. Plaintiff was found guilty of these offenses at the hearing and required to serve the remaining 68 day balance of his initial sentence at FDC Miami, at the direction of the Federal Bureau of Prisons, not Dismas. A prisoner has no due process liberty interest in early release. See, e.g., Wottlin v. Fleming, 136 F.3d 1032, 1036 (5th Cir.1998). Nor does a prisoner possess a constitutional right to be placed, or not to be placed, in a particular prison facility.McKune v. Lile, 536 U.S. 24, 39 (2002); Meachum v. Fano, 427 U.S. 215, 225 (1976). Further, a prisoner has no constitutionally 11
  • 12. Case 1:11-cv-20120-AMS Document 103 Entered on FLSD Docket 04/12/2012 Page 12 of 25 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON protected interest in rehabilitative programs, Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976), or an “equal protection” interest ineligibility for assignment to halfway houses, McLean v. Crabtree, 173 F.3d 1176, 1185 (9th Cir.1999). Also, there is no “constitutionally protected liberty interest” in being classified at a certain security level. Kramer v. Donald, 286 Fed. Appx. 674, 676 (11th Cir. 2008). Plaintiff in the instant case was not on parole at the time of the incidents occurred that gave rise to his action. Rather, the Plaintiff had been placed in the Dismas Charities’ halfway house to conclude his sentence, and thereafter had been placed on home confinement due to his medical conditions. In addition, at the time that the Plaintiff was transferred to the Federal Detention Center in Miami, he had already had his housing quarters changed back to the Halfway House for three weeks for purportedly committing a vehicle infraction. In Sandin v. Conner, 515 U.S. 472, 484 (1995), the Court ruled that the prisoner’s removal from the work program without a hearing did not violate due process because the prisoner did not demonstrate that his removal from the program resulted in treatment that was atypical of what inmates normally endured in daily prison life. Accord Callender v. Sioux City Residential Treatment Facility, 88 F.3d 666, 669 (8th Cir. 1996) (concluding that removing an inmate from a work release program and returning him to prison did not deprive the inmate of a liberty interest under Sandin because it was “not atypical of what inmates have to endure in daily prison life”); Dominique v. Weld, 73 F.3d 1156, 1159-60(1st Cir.1996) (same). The Court stated, since “an inmate is normally incarcerated in prison, [the defendant] did not impose atypical and significant hardship on him in relation to the ordinary incidents of prison life and, therefore, did not deprive him of a protected liberty interest.” 12
  • 13. Case 1:11-cv-20120-AMS Document 103 Entered on FLSD Docket 04/12/2012 Page 13 of 25 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON In this case, the Plaintiff’s confinement was more like the work release prisoner than a pre-parolee prisoner. There is no question that the Plaintiff in this action had not completed his sentence when he was placed at the halfway house. In addition, this conclusion is supported by the fact that the Plaintiff seemingly does not take issue with Dismas Charities’ right to remove him from home confinement and place him back at the halfway house based upon his improper use of a vehicle. Moreover, although he complains that his health suffered because of chores he was given at the halfway house once he was removed from home confinement, he does not challenge the right of that entity to require him to complete chores. Therefore, it does not appear that the Plaintiff “lived a life generally free of the incidents of imprisonment.” Although the conditions at the halfway house clearly were different than those conditions that the Plaintiff encountered at FDC Miami, the Plaintiff does not allege, nor does it appear, that the conditions at FDC Miami,“impose[d] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Regardless, his incarceration at the FDC Miami was controlled by the Federal Bureau of Prisons, not Dismas. Accordingly, Defendants are not responsible for anything that occurred during his incarceration in a Federal Prisons. Since the Plaintiff’s residence at Dismas Charities is the functional equivalent of incarceration, he cannot establish a liberty interest in remaining there. The Plaintiff forgets that he was still an inmate serving out a federal prison sentence at all times as opposed to being a “free man.” For the reasons set forth above, the Plaintiff did not have not have a liberty interest in remaining at Dismas. Even assuming a liberty interest, the Plaintiff has failed to allege sufficient facts to tie the individual Defendants to this claim. With respect to the Plaintiff’s claim that his due process rights were violated when he was imprisoned at the Federal Detention 13
  • 14. Case 1:11-cv-20120-AMS Document 103 Entered on FLSD Docket 04/12/2012 Page 14 of 25 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON Center, the Plaintiff’s claims of a due process violation on this issue concern actions taken by the U.S. Marshals and the Federal Detention Center as is set forth in paragraph 23 of the Amended Complaint, not the Defendants. (Docket 101) The Plaintiff does not allege that once he was removed from Dismas House and placed in FDC that any of the Defendants in this action were tasked with the responsibility of providing the Plaintiff an administrative hearing, or any other due process proceedings. Rather, the Plaintiff alleges that, “FDC Miami represents only a holding facility and not a prison. Although the Plaintiff claims he was given no notice of his impending incarceration and was not presented with the charges against him, stating he was imprisoned without any charges being filed against him, the Plaintiff seemingly contradicts these statements by also alleging that his incarceration was the result of the Community Correctional Manager and U.S. Marshals not knowing that the “alleged minor incident,” was already resolved (Docket 14 at 5-6), implying he was incarcerated as a result of his violation of regulations which prohibited him from driving (See Docket 14 at 5-6). If the Plaintiff’s incarceration was a result of driving without authorization, then he did receive notice of his violation of this provision prior to incarceration, via the disciplinary report that the Plaintiff attached to his Amended Complaint in this action. Thus, the Plaintiff has not alleged any facts that would plausibly support a finding that he was deprived of due process when he was incarcerated at the Federal Detention Center, and Defendants awarded summary judgment. 14
  • 15. Case 1:11-cv-20120-AMS Document 103 Entered on FLSD Docket 04/12/2012 Page 15 of 25 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON 5. The Plaintiff cannot maintain a cause of action for Violations of the Fourteenth Amendment. Plaintiff also appears to be alleging that his Due Process Rights were violated because he was not provided with BP-9 Form. However, the exhibits to the initial Complaint, specifically, Exhibit E, demonstrate that the requests for BP-9 forms were made to Case Manager Price and Unit Counselor of the Federal Bureau of Prisons, not Dismas or its employees. Accordingly, the Defendants are entitled to summary judgment for any causes arising from violations of any due process rights. With respect to the Plaintiff’s claim that the Defendants denied him the opportunity to file a formal administrative remedy request, the Eleventh Circuit has held that prisoners do not have a constitutionally protected liberty interest in access to prison grievance procedures. Bingham v. Thomas, 654 F.3d 1171, 1177 (11th Cir. 2011). This means that the Plaintiff cannot state that the denial of the opportunity to file a formal administrative remedy was a due process violation as a matter of law, meaning this claim should be dismissed for failure to state a claim upon which relief can be granted. The Plaintiff claims that he was discriminated against and harassed because he was a foreigner, spoke with an accent, was white and practiced the Greek-Orthodox religion. (Docket 101, paragraph 26). However, these are conclusory allegations. The Plaintiff fails to describe how he was discriminated against, who discriminated against him and when the discrimination occurred. His claim that “other residents were equally treated” also is conclusory with no factual support. Plaintiff has no standing to make claims for other inmates. Accordingly, the Plaintiff has not alleged or proven any facts to support this baseless allegation and Defendants are entitled to summary judgment. 15
  • 16. Case 1:11-cv-20120-AMS Document 103 Entered on FLSD Docket 04/12/2012 Page 16 of 25 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON 6. The Plaintiff cannot maintain a cause of action for negligence and gross negligence. The elements required to maintain a cause of action for negligence are duty and a breach of that duty which causes damages. Clay Electric Cooperative v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2004). 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. Gross negligence requires conduct “that was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.” F.S.A. § 768.72(2)(b)(2011). Although the Plaintiff has stated why he believes the Defendants were negligent, he has not stated how any of the Defendants breached a duty they owed to him or that any of their breaches was the cause of his damages, nor has he stated what damages resulted from any breach of their duty. The Plaintiff also has failed to allege or prove any facts or actions that were so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct to support an action for gross negligence. The Plaintiff only states that his negligence claim stems from “mental anguish” he suffered at the hands of Dismas staff, without mentioning what harm he suffered or which Dismas staff members breached their duty to him or caused him damages. Moreover, the Plaintiff does not mention gross negligence other than when he states it as a claim upon which he is trying to recover. The Plaintiff fails to set forth any facts demonstrating negligence. Instead, his complaint contains conclusory allegations which do not alleged negligence. He claims he was terrorized, 16
  • 17. Case 1:11-cv-20120-AMS Document 103 Entered on FLSD Docket 04/12/2012 Page 17 of 25 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON forced to perform cleaning jobs, was found to be capable of dusting, told to vacuum and was not permitted to receive an unauthorized meal from his wife. (Docket 101, paragraphs 31-33). These allegations, even if accepted as true, do not constitute negligence. The Amended Complaint further fails to allege which of the Defendants were negligent, their acts of negligence or of what harm the Plaintiff suffered. For example, being asked to dust and vacuum, are not negligent. Further, the Complaint does not allege that he performed the work, only that he was asked to perform the work. Accordingly, the Plaintiff’s claim is merely conclusory statement that the Defendants were negligent without any factual support or allegations. See Iqbal, 129 S.Ct. at 1949;see Erickson, 551 U.S. at 94. Thus, the Plaintiff has not stated a claim against the Defendants that is “plausible on its face” and Defendants must be granted summary judgment on the negligence claims.. See Iqbal, 129 S.Ct. at 1949. 7. The Plaintiff cannot maintain a cause of action for abuse of process. To maintain a cause of action for abuse of process, the Plaintiff must prove three elements: 1) that the Defendant made an illegal or improper use of process; 2) that the Defendant had ulterior motives or purposes in exercising such illegal, improper or perverted use of process and 3) that, as a result of such action on the part of the Defendant, the Plaintiff suffered damage. 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. Id. 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). There is no evidence supporting these claims against any of the defendants. For example, the Plaintiff alleges that various Defendants made false statements in documents, used wrong 17
  • 18. Case 1:11-cv-20120-AMS Document 103 Entered on FLSD Docket 04/12/2012 Page 18 of 25 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON forms, used wrong code numbers and made omissions in the forms. (Docket 101, paragraph 35) Even if any Defendant used any process for spite or ulterior purpose, this type of alleged action does not and cannot constitute abuse of process. 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 Investment, 36 So. 3d at 917. In this case, the documents described in the Amended Complaint were used for its proper purpose-specifically to document an alleged violation by someone serving a sentence for a criminal act, document conduct and document the Plaintiff’s actions and behavior. Even if any Defendant took action against the Plaintiff for any personal reason, since the alleged process was used to accomplish the result for which is was created, the motive of any Defendant is irrelevant. (Docket 83-1, Affidavit of Ana Gispert, p. 21-36) Accordingly, the Plaintiff cannot maintain a cause of action for abuse of process and Defendants are entitled to final summary judgment. 8. The Plaintiff cannot maintain a cause of action for 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. The Plaintiff cannot support or sustain a cause of action for malicious prosecution for a number of reasons. First, there was no commencement of judicial proceedings against the Plaintiff. Second, and most importantly, there was no bona fide termination in favor of the 18
  • 19. Case 1:11-cv-20120-AMS Document 103 Entered on FLSD Docket 04/12/2012 Page 19 of 25 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON Plaintiff. The Plaintiff was found to have violated his release conditions and returned to the Federal Bureau of Prisons for 81 days. 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. The Plaintiff even concedes this fact. Since the Plaintiff has not, and cannot establish the elements of malicious prosecution, especially the key elements of the commencement of a judicial proceeding and termination of the proceeding in favor of the Plaintiff, Defendants must be awarded summary judgment. Although the Plaintiff claims he was the subject of malicious prosecution, he does not allege facts that make it plausible on its face that he was subject to malicious prosecution. The Plaintiff claims his incarceration constitutes malicious prosecution by alleging that this incarceration was based on his infractions for driving and possessing an allegedly hazardous tool, which he claims were previously resolved with the issuance of the disciplinary report. (Docket 101, paragraph 40). Malicious prosecution requires the existence of a judicial proceeding, yet the Plaintiff has alleged no judicial proceeding and only alleged malicious prosecution as a result of his incarceration at the Federal Detention Center. Without the allegation of a judicial proceeding, the Plaintiff cannot allege any of the other elements of malicious prosecution, as they all occur within the context of a judicial proceeding, namely one “legal[ly] caus[ed]” by the defendant and directed towards the plaintiff without probable cause and with a “bona fide” termination in the plaintiff’s favor. See Endacott, 910 So.2d at 920. Even assuming that the disciplinary proceedings qualified as a judicial proceeding, there is no allegation of an outcome in favor of the Plaintiff. For these reasons, the Plaintiff has failed 19
  • 20. Case 1:11-cv-20120-AMS Document 103 Entered on FLSD Docket 04/12/2012 Page 20 of 25 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON to allege a claim of malicious prosecution upon which relief can be granted and Defendants must be awarded summary judgment. 9. The Punitive Claim must be dismissed. Florida Statute 768.72(1) states, in pertinent part: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. The claimant may move to amend her or his complaint to assert a claim for punitive damages as allowed by the rules of civil procedure. The rules of civil procedure shall be liberally construed so as to allow the claimant discovery of evidence which appears reasonably calculated to lead to admissible evidence on the issue of punitive damages. No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted. (emphasis supplied) The Amended Complaint fails to set forth the necessary evidentiary proffer for a cause of action for punitive damages pursuant to Florida Statute 768.72. The allegations in the Amended Complaint alone are not sufficient as the mere allegations do not constitute evidence. Accordingly, Defendants are entitled to summary judgment on the damage claim. 10. Defendants are entitled to summary judgment on the issue of damages. The Plaintiff has not provided any evidence of record to support any claim for damages, regardless of the cause of action claimed. The real basis for the lawsuit essentially is that the Plaintiff upset that he was sent to a correctional facility to complete his sentence as opposed to remaining in home confinement. However, as is proven in Dismas prior filings, the Plaintiff did violated the terms of his halfway house release when he drove, without the permission of Dismas, and was found to be in possession of contraband, specifically a cell phone. The Plaintiff also was send to the Federal Detention Center in Miami. (Statement of Undisputed Facts and Affidavit of Ana Gispert, which is incorporated as though fully set forth herein. (Docket 83-1 20
  • 21. Case 1:11-cv-20120-AMS Document 103 Entered on FLSD Docket 04/12/2012 Page 21 of 25 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON and 83-2)) Further, if the Plaintiff did sustain damages, which is denied, he himself was the cause of his damages. Certainly, someone who served time in a correctional institution and was still serving his sentence cannot complain that being sent to a detention center is a basis for damages. Once again, the Defendants did not confine the Plaintiff. The Plaintiff was held by the Federal Bureau of Prisons. Again, the Plaintiff forgets that he was still under Federal custody service at all material times. Plaintiff could not have sustained damages because he was “arrested or imprisoned” as he was already a prisoner serving his prison sentence at the time of the incidents described in the Amended Complaint. Certainly, someone already imprisoned and serving a prison sentence, as in this case, whether it be at a prison or halfway house, cannot be falsely imprisoned or confined. Any alleged restraint or detention of the Plaintiff therefore, was not unlawful, as he was already under the custody and supervision of the Federal Prison System at the time of the events described in the Complaint. As all actions described in the Complaint were under color of law by Dismas, the U.S. Marshall and the Federal Bureau of Prisons, no unlawful activity occurred. Therefore, Plaintiff cannot prove causation of damages by the Defendants or that he sustained any damages. Accordingly, Defendants are entitled to summary judgment. 11. 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 21
  • 22. Case 1:11-cv-20120-AMS Document 103 Entered on FLSD Docket 04/12/2012 Page 22 of 25 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON 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, along with various Motions, Objections to the Magistrates Report and an Amended Complaint. (Docket Numbers 86, 90, 96 and 100) 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. 22
  • 23. Case 1:11-cv-20120-AMS Document 103 Entered on FLSD Docket 04/12/2012 Page 23 of 25 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON 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 23
  • 24. Case 1:11-cv-20120-AMS Document 103 Entered on FLSD Docket 04/12/2012 Page 24 of 25 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 12th 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 24
  • 25. Case 1:11-cv-20120-AMS Document 103 Entered on FLSD Docket 04/12/2012 Page 25 of 25 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON 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 25