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Doc. 13 11599-e

  1. 1. -•IN THE UNITED STATES COURT OF APPEALS IN AND FOR THEELEVENTH CIRCUITCase No.: 13-11599-EL.T. No.: 11-20120-CIV-SEITZ/SIMONTONTRAIAN BUJDUVEANU,Appellant/Plaintiff,vs.DISMAS CHARITIES, INC., ANA GISPERT,DEREK THOMAS and LASHANDA ADAMS,Appellees/Defendants.APPEAL FROM THE UNITED STATES DISTRICT COURT FORTHE SOUTHERN DISTRICT OF FLORIDAINITIAL BRIEF OF APPELLANT TRAIAN BUJDUVEANUTraian BujduveanuPro Se Plaintiff/Appellant5601 West Broward BoulevardPlantation, Florida 33317Phone: (954) 663-7768Case: 13-11599 Date Filed: 04/26/2013 Page: 1 of 40
  2. 2. U.S. COURT OF APPEALS FOR THE ELEVENTH CIRCUITCERTIFICATE OF INTERESTED PERSONSAND CORPORATE DISCLOSURE STATEMENT ^ * Ajm -.7/t/b/9rf &u3l>Urftf//U vs.lasho//<M /toA/is APPeaino 12>-/JS9?-<*-1lth Cir. R. 26.1 (enclosed) requires that a Certificate of Interested Persons andCorporate Disclosure Statement must be filed by the appellant with this court within 14days after the date the appeal is docketed in this court, and must be included within theprincipal brief filed by any party, and included within any petition, answer, motion orresponse filed by any party. You may use this form to fulfill this requirement. Inalphabetical order, with one name per line, please list the trial judge(s), and all attorneys,persons, associations of persons, firms, partnerships, or corporations that have an interestin the outcome of this case or appeal, including subsidiaries, conglomerates, affiliates andparent corporations, including any publicly held corporation that owns 10% or more ofthe partys stock, and other identifiable legal entities related to a party.(please type or print legibly):Aa/j s;Isseerbete* 7//W#<?£>/3rt/9s c/M*/7fest jtic-Case: 13-11599 Date Filed: 04/26/2013 Page: 2 of 40
  3. 3. Table of CitationsWolffv. McDonnell, 418 U.S. 539, 94 S.Ct. 2963,41 L.Ed.2d 935 (1974).Massachusetts Correctional Institution v. Hill, 472 U.S. 445,454,105 S.Ct.2768,2773, 86 L.Ed.2d 356 (1985).Parenti v. Ponte, 727 F.2d 21,25 (1st Cir.1984).The Restatement (2nd) ofTorts, §31.Oviatt v. Pearce, 954 F.2d 1470,1474 (9th Cir. 1992).Reed, 77 F.3d at 1054; Torres, 966 F.Supp. at 1365.Doby v. DeCrescenzo, 1996U.S. Dist. LEXIS 13175, *40 (E.D. Pa. Sept. 9,1996).Chatham v. Adcock, (N.D. Ga. Sept. 28,2007).Allen v. McMorris, No. 4:06-cv-810 SNL,2007 WL 172564, at *2 (E.D.Mo. J Enigwe v. Zenk, No. 03-CV-854 (CBA), 2006 WL 2654985, at *4(E.D.N.Y. Sept. 15, 2006) (unpublished) an. 19, 2007).Torres v. Superintendent ofPolice, 893 F.2d 404,409 (1st Cir.1990).Schwartz v. Public Admr ofBronx County, 24 N.Y.2d 65,298 N.Y.S.2d955, 961,246 N.E.2d 725, 729 (1969).Morales v. Ramirez, 906 F.2d 784, 788 (1st Cir.1990).28 C.F.R. § 547.20.Estelle v. Gamble,429 U.S. 97, 103-04, 97 S.Ct. 285, 50 L.Ed.2d 251(1976).Lozano v. Smith,718 F.2d 756, 768 (5th Cir.1983).Case: 13-11599 Date Filed: 04/26/2013 Page: 3 of 40
  4. 4. . m-- sWright v. Rushen, 642 F.2d 1129, 1132-33 (9th Cir. 1981)(citation omitted).682 F.2d at 1246-47Fox v. Custis, 372 S.E.2d 373, 375 (Va. 1988).Mathes v. Ireland, 419 N.E.2d 782,784 (Ind.Ct.App.1981).United States v. Matlock, 415 U. S. 164,171 (1974).Schneckloth v. Bustamonte, 412 U. S. 218 (93 SC 2041,2048, 36 LE2d854) (1973).United States v. Smith, 395 FSupp. 1155, 1156-57 (W.D.N.Y. 1975).Inman v. State, 124 Ga. App. 190 (2) (183 SE2d413) (1971)Enigwe v. Zenk, No. 03-CV-854 (CBA), 2006 WL 2654985, at *4(E.D.N.Y. Sept. 15, 2006) (unpublished).Flagg Bros., Inc. v. Brooks,436 U.S. 149,155, 98 S.Ct. 1729, 56 L.Ed.2d185 (1978).Rendell-Baker v. Kohn,457 U.S. 830, 842,102 S.Ct. 2764, 73 L.Ed.2d 418(1982).Skelton v. Pri-Cor, Inc.,963 F.2d 100,102 (6th Cir.), cert, denied, 503 U.S.989, 112 S.Ct. 1682,118 L.Ed.2d 398 (1992)Lemoine v. New Horizons Ranch & Ctr.,990 F.Supp. 498, 502(N.D.Tex. 1998).Wright v. Rushen,642 F.2d 1129, 1132-33 (9thCir. 1981)(citation omitted).682 F.2d at 1246-47.Case: 13-11599 Date Filed: 04/26/2013 Page: 4 of 40
  5. 5. fitStatement of Facts1. On July, 28,2010, with the approval ofCCM Director CarlosRodriguez the Plaintiff/Appellant was transfer from Colman LowCorrectional Facility to Dismas Charities, Inc. halfway house, located inDania, Florida.2. Defendant/Appellee Dismas Charities, Inc., is non-profit corporation501(c)(3) organization, who operates 28 halfway houses in 13 states thatcontract from the U.S Government, ofwhich Co-defendants Ana Gispert,Derek Tomas and Lashanda Adams are employees ofDismas Charities,Inc.3. Defendant/Appellee Dismas Charities house has limited independentdisciplinary discretion, thus giving it discretion over minor ofprohibitedacts. Any serious sanctions required approval ofCCM, USPO andCommunity Sanctions representatives.4. Upon arrival at Dismas Charities facility, Plaintiff/Appellant signedthe acknowledgement ofall regulations as well as the receipt ofa DismasCharities Handbook. However, the Plaintiff7Appellant did not receive ahard copy, as there were none available.5. The Plaintiff/Appellant provided the appropriate staffmembers copiesCase: 13-11599 Date Filed: 04/26/2013 Page: 5 of 40
  6. 6. ofdriver license, driving history from the Division ofMotor Vehicles inTallahassee, vehicle registration, and valid insurance,in compliance withthe terms and conditions necessary to obtain permission to operate amotor vehicle during supervision. Be that as it may, the reason for whichthe Plaintiff/Appellant was not approved to drive, as contended by theDefendants, is unknown even today.6. The Plaintiff/Appellant provided the appropriate staffmembers copiesofall medical records indicating the severity ofhis medical conditionsand any doctor recommendations concerning programrequirements formanual labor and work outside ofthe facility.7. During his residency at Dismas House, the Plaintiff/Appellant wasconstantly terrorized, intimidated, and humiliated without any regard forhis medical conditions or his dignity, in that he was forced to do cleaningjobs when in fact in violation ofhis doctors orders, even going as far asto prevent his medical treatment, adding insult to injury. When asked,"who should have the last say on this matter, the doctor or the federalprison", Derek Thomas answered, "We have already had thisconversation. Here the Bureau ofprison rules and not the doctor".8. The Defendants/Appellee openly denied the Plaintiff/AppellantsCase: 13-11599 Date Filed: 04/26/2013 Page: 6 of 40
  7. 7. request to attend Religious Services at a Romanian Orthodox church onSundays, located 16 minutes by car(9.5 miles) from the Dismas Charitieshalfway house, under the pretext ofFederal Guidelines. ThePlaintiff/Appellants research has shown such guidelines do not exist andthe Federal Government remains neutralregarding religious practice ordistancesto and from a religious institution at a halfway house, thusconstituting a violation ofthe Plaintiff7Appellantsrights to religiousfreedom and the free exercise thereof, and further violating the UnitedStates stance on separation ofchurch and state.9. In violation ofhis Title VII protections,the Plaintiff/Appellant wasdiscriminated against and harassed constantly, by theDefendants/Appellees, because he was a foreigner, spoke English with anaccent, practiced Greek-Orthodox Religion andhe was white. Similarlysituated residents at Dismas house were not treated alike.10. On September 28,2011, the Plaintiff/Appellant was approved by theCCM Director Carlos Rodriguez, to be transferred to home confinement,due to severe medical problems. The USPO Office was advised andagreedon Plaintiff7Appellants home confinement transfer, requiringthePlaintiff7Appellant to report once a week to Dismashalfway house.11. On October 13,2010, the PlaintiffAppellant drove his familyCase: 13-11599 Date Filed: 04/26/2013 Page: 7 of 40
  8. 8. vehicle to Dismas halfway house for his bi-weekly report.12. An illegal search was conducted ofthe vehicle thatPlaintiff7Appellant drove and property was removed from the vehiclewithout the knowledge ofthe Plaintiff/Appellant andwithout thePlaintiff/Appellant being present at the search. Defendants asserted that acellulartelephone, a phone charger and a packet ofcigarettes were foundin the glove compartment ofthe car and confiscated. Data and evidencefrom the surveillance cameras that contained information regardingtheillegal search and seizure, was deliberately destroyed by the Defendants.13. Having a cellular telephone in the car, does not represent a violationfor prisoners on home confinement as halfway house rules andregulations are not the same as home confinement rules and regulations.Plaintiff/Appellant does not smoke, and operating a motor vehiclewithout prior approval represents a minor violation, and does not requireincarceration.14. As a result ofthis incident, the Plaintiff/Appellant was given threeseparate violations, on different dates, for the same incident that occurredin the same day, time and place, without Due Process ofLaw. Not allcopies ofthe three written violations were released as requested by thediscovery.Case: 13-11599 Date Filed: 04/26/2013 Page: 8 of 40
  9. 9. 15. On October 20, 2010, at 6:30 A.M., while sleeping in his bed atDismas House, the PlaintifFAppellant was arrestedby two U.S. Marshallagents and transported to F.D.C. Miami, without any charges leviedagainst him and without Due Process Law.16. The incarcerationwas done without the knowledge ofUSPO andCCM Director, Carlos Rodriguez, as he did not sign the papers for theincarceration, thus making it clearthat the Defendants engaged in acampaign oferasing evidence and fabricating documents in order tocover up any suspicion ofthe events. The Plaintiff/Appellant is awarethat the following documents have been fabricated.17. While incarcerated at F.D.C. Miami, no charges were ever leviedagainst the Plaintiff/Appellant and no investigation ofany kind wascarriedout against him. No federal employee ofF.D.C. wanted to getinvolved with his case, they were aware ofthe covert and illegal actionsofthe Defendant. Federal Department ofCorrections Miami CounselorPrice and Unit Manager Harrison, under the strict suggestions oftheF.D.C. warden, attempted in a few instances to contact the office ofCCMDirector, Carlos Rodriguez, to no avail.18. The Plaintiff/Appellant was released from F.D.C. Miami on January03,2011.Case: 13-11599 Date Filed: 04/26/2013 Page: 9 of 40
  10. 10. Statement of the Case1. On January 12,2011, Appellant/Plaintiff, Traian Bujduveanu, filedMOTION for Return ofProperty against Dismas Charities, Inc., AnaGinspert (Docket Entry #1).2. On March 29th, 2011 Appellan Appellant/Plaintiff, TraianBujduveanu, filed AMENDED COMPLAINT ofDamagesagainstDismas Charities, Inc., Ana Ginspert, Derek Thomas, Adams Leshota(Docket Entry #14).3. On May 4th, 2011, Defendants/Appellees filed MOTION to DismissAmended Complaint (Docket Entry #26).4. On May 24th, 2011 Appellant/Plaintiff, Traian Bujduveanu, filedMOTION to Strike MOTION to Dismiss and Incorporated Memorandumof Law.5. On May 25th, 2011 Defendants/Appellees filed RESPONSE to Motionre MOTION to Strike (Docket Entry #35).6. On June 6th, 2011, Judged from lower tribunal entered ENDORSEDORDER granting Plaintiffs Motion to Strike Document from the Docket(Docket Entry #40).7. On August 5th, 2011 Appellant/Plaintiff, Traian Bujduveanu filedCase: 13-11599 Date Filed: 04/26/2013 Page: 10 of 40
  11. 11. MOTION for the Production ofDocuments and Electronically StoredInformation,Under Rule 34 by Traian Bujduveanu. The Judge oflowertribunal entered GENERAL ORDER ON DISCOVERY OBJECTIONS,denying, without prejudice, Plaintiffs Motion for the Production ofDocuments and Electronically Stored Informations, Under Rule 34(Docket Entries #50, 51, and 52).8. On August 30, 2011 Appellant/Plaintiff, Traian Bujduveanu filedMOTION to Compel Production ofDocuments and Electronically StoredInformation (Docket Entry #53). The Defendants/Appellees replied withNOTICE ofCompliance with Mediation Order (Docket Entry #55).On September 9th, 2011, Defendants/Appellee filed RESPONSE inOpposition MOTION to Compel Production ofDocuments andElectronically Stored Informations (Docket Entry #56).Appellant/Plaintiff, Traian Bujduveanu filed MOTION to CompelSecond Request for Production ofDocuments, First and Second Set ofInterrogatories. On September 28th the Defendants/Appellees filedRESPONSE in Opposition re MOTION to Compel Second RequestforProduction ofDocuments, First and Second Set ofInterrogatories(Docket Entry # 57, 58, 59).9. After being unable to compel discovery, and mediation ending in anCase: 13-11599 Date Filed: 04/26/2013 Page: 11 of 40
  12. 12. impasses Appellant/Plaintiff, Traian Bujduveanu filed NOTICE ofMotion for Summary Judgment (Docket Entry #70).10. On December 16th, 2011 Defendant/Appellees responded with aMOTION for Summary Judgment (Docket Entry #83).11. On March 29th 2013, the Judge from the lower tribunal entered anORDER granting Defendants Motion for Summary Judgment; denyPlaintiffs Motion for Summary Judgment, and entered a FINALJUDGMENT in favor ofthe Defendants against the Plaintiff (DocketEntry#131andl32).10Case: 13-11599 Date Filed: 04/26/2013 Page: 12 of 40
  13. 13. *• *Argument(s)Issue #1: Whether the lower tribunal erred in granting DefendantsMotion for Summary Judgment, by overlooking Defendants/AppelleesApparent Abuse of Process?Abuse ofprocess is a cause ofaction in tort arising from one partymaking a malicious and deliberate misuse or perversion ofregularly issuedcourt process (civil or criminal) not justified by the underlying legal action.Under Wolffv. McDonnell, 418 U.S. 539,94 S.Ct. 2963,41 L.Ed.2d 935(1974), a prisoner facing a disciplinary hearing that may result in the loss ofa liberty interest must receive "(1) advance written notice ofthe disciplinarycharges; (2) an opportunity, when consistent with institutional safety andcorrectional goals, to call witnesses and to present documentary evidence inhis defense; (3) a written statement by the fact finder ofthe evidence reliedon and the reasons for the disciplinary action." Superintendent,Massachusetts Correctional Institution v. Hill, 472 U.S. 445,454,105 S.Ct.2768,2773, 86 L.Ed.2d 356 (1985), citing Wolff, 418 U.S. at 563-67, 94S.Ct. at 2978. Even though Smith did not have a liberty interest in remainingat Gardner, he was entitled to these procedural safeguards because he riskedthe loss ofliberty entailed in isolation time, a sanction which he ultimately11Case: 13-11599 Date Filed: 04/26/2013 Page: 13 of 40
  14. 14. received. See Parenti v. Ponte, 727 F.2d 21,25 (1st Cir.1984). TheDefendants have an obligation to comply with all statutes, regulations andguidelines from the National Archives and Records Administration. TheCCM office based in Miami reports and abides by the rules and regulationsset by the Federal Bureau ofPrison. Accordingly, the CCM office has to useproper Federal Forms each time a prisoner is concerned. All documentsmust be documented in the Sentry system to be fully in compliance with allstatutes, regulations and guidelines. The abuses ofprocess ofare as follows:1. No copies ofthe Transfer Orders (BP-S399.058) nor TransferReciept (BP-821.051) were ever provided to thePlaintiff7Appellant, because they did not and do not exist to thisday.2. The transfer ofa halfway house resident back to the FederalPrison it is NOT done thru a Memorandum. The US FederalGovernment requires that an approved form (BP-S399.058) and(BP-821.051), is used for any actiontaken by a federalemployee. In this case,the request MUST be placed in theSENTRY SYSTEM to the US Marshal, and then other Transferand custody forms must be filled out with the appropriate datesand signatures, and a copy must be given to the transferred12Case: 13-11599 Date Filed: 04/26/2013 Page: 14 of 40
  15. 15. inmate. This has not taken place because charges orinvestigations againstthe Plaintiff/Appellant, were never leviedby the Federal Bureau ofPrisons.This was a gross Fabricationwith a premeditated cover-up.3. The Letter from Derek Thomas to Carlos Rodrigues, which is afabricated document also, it has no date. Without a date, thisletter is not an official document. Even more disturbing is thefact that Authority to transfer federal inmates from non-federalfacilities to federal intuitions is delegated to CCMs.4. The letter from Derek Thomas to offender Traian Bujduveanu,a fabricated document, also does not have a date.5. The fabricated letter, allegedly written by Ana Gispert onOctober 20,2010, states that "Mr. Bujduveanus adjustment tothe program has been poor, as witnessed by his inability tofollow all ofthe rules and regulations set forth by DismasCharities and the Bureau of Prisons." Yet all other documentsstate that he is cooperative and that he did all communitytransition courses, and that he will no longer benefit from thehalfway house. Which leadsthe Plaintiff7Appellantand thecourt to question whether alleged minor violations ofwarrant13Case: 13-11599 Date Filed: 04/26/2013 Page: 15 of 40
  16. 16. such a drastic change in opinion, and moreover, whether thischange in opinion was done as matter of fact or simply toremove PlaintifffAppellant from the facility.6. In a letter from Ana Gispert to Bobbie Lowery, dated January5,2011 she is instructing him to make certified documentsstating that they have attempted to return the property to thefamily ofthe Plaintiff7Appellant. At this time the property ofthe PlaintifE^Appellant is still in the Derek Thomas office andunder his control. She is practically instructing them to lie andmake false documents, as my family will attest to the fact thatthey were never contacted to retrieve my property.7. The application ofa violation Code 108 "Possession,Manufacture, or introduction ofa hazardous tool (Tools mostlikely to be used in an escapeor escape attempt or to serve as aweapon capable ofdoing ofdoing serious bodily harm toothers; orthose hazardous to institutional securityor personalsafety", to include that ofa cell phone. First and foremost, acell phone unless used a detonation device cannot be seen asthreat to personal orinstitutional safety. At best this allegedviolation should have been charged as a Code 305, "Possession14Case: 13-11599 Date Filed: 04/26/2013 Page: 16 of 40
  17. 17. of anything not authorized for retention or receipt by theinmate, not issued to through regularchannels. However,given the fact that the Plaintiff/Appellant was on homeconfinement, even this chargewould not be a perfect fit giventhe fact that those on home confinement are afforded additionalrights and liberties as they arenot subject to 24 hourmonitoring by facility. Ultimately, his chargeswere trumpedup to such that he would be charged with a violation that mightcause his removal from the programratherthan one that ismore in line with the Plaintiff7Appellants alleged actions thattook place that day. Given the harmless nature ofa cell phone,and its inability to enable an inmate to escape from acorrectional facility, as a tool used for serious bodily harm, it isclear that there is some underlying malicious intent behind theuse ofthis violation code as opposed to one that was moreappropriate.We therefore arguethat the trial court erredin failing to deny theAppellees Motion for Summary Judgment, and would humbly request thatOrderGranting said Summary Judgment overturned.15Case: 13-11599 Date Filed: 04/26/2013 Page: 17 of 40
  18. 18. Issue #2; Whether the lower tribunal erred in granting DefendantsMotion for Summary Judgment, by overlooking Plaintiffs /Appellantsclaims for False Arrest and Imprisonment?The tort offalse imprisonment or false arrest contains the followingelements:The Restatement (2nd) ofTorts, §31,reads: An actor is subject toliability to another for false imprisonment if:(a) he acts intending to confine the other or a third person withinboundaries fixed by the actor, and(b) his act directly or indirectly results in such a confinement oftheother, and(c) the other is conscious ofthe confinementor is harmed by it.False imprisonment has four elements:2. intent,3. actual confinement in boundaries not ofthe plaintiffschoosing,4. a causal link, and5. Awareness of the confinement.16Case: 13-11599 Date Filed: 04/26/2013 Page: 18 of 40
  19. 19. The Defendant/Appelleee argued that one who is imprisoned couldnt befalsely arrested, and furthermore that it was the US Marshals at the directionofthe Federal Bureau ofPrisons. However, it was the direct and indirectactions ofthe Defendant that lead to the confinement ofthePlaintiff/Appellant. Although, the Defendant was not the one that physicallyplaced the Plaintiff7Appellant in specific confined area and held him againsthis will, their acts were the causal act that lead to the Plaintiff/Appellantbeing placed in prison. Causation is, ofcourse, a requiredelement ofa falseimprisonment. See Oviatt v. Pearce, 954 F.2d 1470,1474 (9th Cir. 1992). Aprobation/paroleofficer need not actuallyuse force to detain aprobation/parolee illegally. Although false imprisonment usually followsfalse arrest, false imprisonment may take placeeven after a valid arrest.However, a police officer may be held to have "initiated" a criminalproceeding ifhe knowingly provided false information to the prosecutor orotherwise interfered with the prosecutors informed discretion. See, Reed,77 F.3d at 1054; Torres, 966 F.Supp. at 1365. In such cases, "an intelligentexercise ofthe ... [prosecutors] discretion becomes impossible," andaprosecutionbased on the false information is deemed "procured by theperson giving the false information."However, a privatecitizen may be heldliable for false arrest under § 1983 ifhe or shecaused the plaintiffto be17Case: 13-11599 Date Filed: 04/26/2013 Page: 19 of 40
  20. 20. arrested by virtue offalse statements he or she made to the police. Doby v.DeCrescenzo, 1996 U.S. Dist. LEXIS 13175, *40 (E.D. Pa. Sept. 9,1996)We therefore argue that the trial court erred in failing to deny theAppellees Motion for Summary Judgment, and would humbly request thatOrder Granting said Summary Judgment overturned.Issue #3: Whether the lower tribunal erred in granting DefendantsMotion for Summary Judgment, by overlooking Plaintiffs /Appellantsclaims for Assault and Battery?The Defendants/Appellee maked the claim that they are entitled tosummary judgment as the Plaintiffhas not provided any facts to supportallegations ofassault and battery. It is clear that no such record oftheassaults and battery that took place as the Defendants refused to provide thePlaintiff/Appellant with and means ofdocumenting said actions. Theprocedures established by the Bureau ofPrisons require that appeals to theGeneral Counsel shall include copies ofForms BP-9, BP-10, and theirresponses. BOP Program Statement (P.S.) 1330.7, p 7(b). The onlyexception to this requirement is where the inmate has not yet received aresponse. P.S. 1330.7, p 6(6). You must use up all administrative solutionsbefore suing in federal court. It would be an anomalous result, indeed, ifprison officials could foreclose prison inmates from filing civil rights18Case: 13-11599 Date Filed: 04/26/2013 Page: 20 of 40
  21. 21. lawsuitsin federal court simply by depriving them ofthe means to fulfill amandatory prerequisite to doing so," Chatham v. Adcock, (N.D. Ga. Sept.28,2007). Allen v. McMorris, No. 4:06-cv-810 SNL, 2007 WL 172564, at*2 (E.D. Mo. Jan. 19,2007) (unpublished) (holding allegation that prisonercould not get grievance policy or forms barred summary judgment fordefendants).Anna Gisperts admission ofnot having provided BP-9 forms toPlaintiff7Appellant, provides the Plaintiff/Appellant no means ofdocumenting the abuses of process, abuses ofConstitutional rights and civilliberties on the part ofthe Defendants, and even goes to the extent ofproviding the Plaintiff/Appellant very little material documentation ofhisexperiences at the halfway house (Exhibit #5 to this motion). However, itwas their intention all along to deny the Plaintiff/Appellant an opportunity toever have a legitimate opportunity to defend himselfboth in theirnonexistent in-house judiciary proceedings, when he faced the FederalBureau ofPrisons prior to being sent back to prison, and currently in hiscivil action against the Defendants. Enigwe v. Zenk, No. 03-CV-854(CBA), 2006 WL 2654985, at *4 (E.D.N.Y. Sept. 15, 2006) (unpublished)"denying summary judgment to defendants where plaintiffasserted hisrepeated efforts to obtain forms were fruitless".19Case: 13-11599 Date Filed: 04/26/2013 Page: 21 of 40
  22. 22. Wetherefore argue thatthetrial court erred in failing to deny theAppellees Motion for Summary Judgment, andwould humbly request thatOrder Granting said SummaryJudgmentoverturned.Issue #4: Whether the lower tribunal erred in granting DefendantsMotion for Summary Judgment, by overlooking Plaintiffs /Appellantsclaims for Malicious Prosecution?The Defendants argued that since the Plaintiff/Appellant has not, andcannot establish the elements ofmaliciousprosecution,especially the keyelements ofthe commencement ofjudicial proceeding on the plaintiff, bythe defendant and termination ofthe in favor ofthe Plaintiff, that theDefendants should have been awarded summary judgment.The common law tort ofmalicious prosecution originated as a remedyfor an individual who had been subjected to a maliciously instituted criminalcharge. "All federal claims for malicious prosecution are borrowed from thecommon law tort... [which] imposes liability on a private person whoinstitutes criminal proceedings against an innocent person without probablecause for an improper purpose. The federal claim under [42 U.S.C.] section1983 for malicious prosecution differs from the state civil suit in that itrequires that state officials acting under color oflaw1 institute the criminalproceedings against the plaintiffand thereby deprive him ofrights secured20Case: 13-11599 Date Filed: 04/26/2013 Page: 22 of 40
  23. 23. under the Constitution." Torres v. Superintendent ofPolice, 893 F.2d 404,409 (1st Cir.1990).Yet again to combatthe Defendants/Appellees claimthatthey did notinitiate prosecution againstthe Plaintiff, it is undeniable that the USMarshalls, and Division of Corrections would not have even been aware ofany sort ofalleged violation, had it not been forthe request that were madeby the Defendants. Yet again, it was the direct and indirect actions oftheDefendant, which lead to the prosecution, and subsequent confinement ofthe Plaintiff/Appellant. Section 28(5)(c) statesthat issue preclusion does notapply if"the party sought to be precluded, as a result ofthe conduct ofhisadversaryor other special circumstances, did not have an adequateopportunity or incentive to obtain a full and fair adjudication in the initialaction." Specifically, there are "various factors which should enter into adetermination whether a party has had his day in court [including] suchconsiderations as ... the availability ofnew evidence..." Schwartz v. PublicAdmr ofBronx County, 24 N.Y.2d 65,298 N.Y.S.2d 955, 961,246 N.E.2d725, 729 (1969).Two aspects ofthe Danners preliminary hearing demonstrates thatthey were not afforded a full and fair opportunity to litigate whether21Case: 13-11599 Date Filed: 04/26/2013 Page: 23 of 40
  24. 24. * »probable cause existed for their arrest. First, the determination ofprobablecause was basedon the false testimony ofDawnFarris at preliminaryhearing. At trial sherecanted virtually all the key accusations necessary toconclude that a crime had occurredandthat the Danners were likely to havecommitted it. Second, there were key facts that were not and could not havebeen discovered before the preliminary hearing despitethe district attorneysopen file policy. Until cross examination ofthe other sales clerk atpreliminary hearing, no one knew thata customer, Melody Winn, had beenpresentwhen the alleged theft took place. Nor was it known that the precisetime ofthe allegedtheft had been recorded by the stores cash registeron thecustomers check. Winns testimony at trial,that she had seen nothing out ofthe ordinaryduring her purchase, was key to the Danners defense and to thenot- guilty verdict.Anna Gisperts admission ofnot having provided BP-9 forms toPlaintiff/Appellant, provides the Plaintiff/Appellant no means ofdocumenting the abuses ofprocess, abuses ofConstitutional rights and civilliberties on the part ofthe Defendants, and even goes to the extent ofproviding the Plaintiff/Appellant very little material documentation ofhisexperiences at the halfway house. Although, "Malicious prosecution doesnot per se abridge rights secured by the Constitution." Morales v. Ramirez,22Case: 13-11599 Date Filed: 04/26/2013 Page: 24 of 40
  25. 25. 906 F.2d 784, 788 (1st Cir.1990). In articulating the elements ofa maliciousprosecution claim under 42 U.S.C. Sec. 1983, we have held that "thecomplaint must assert thatthe malicious conductwas so egregious that itviolated substantive or procedural due processrightsunder the FourteenthAmendment." Torres, 893 F.2d at409. "[F]or substantive due processpurposes, the allegedmalicious prosecution must be conscience shocking."Id. at410. "For procedural due process purposes ... the plaintiffusuallymustshow the alleged conduct deprived him ofliberty by a distortion andcorruption ofthe processes oflaw, i.e., corruption ofwitnesses, falsificationofevidence, or some other egregious conductresultingin the denial ofa fairtrial.... In addition, the plaintiffmust show there was no adequate statepostdeprivation remedy available to rectify the harm.Given the fact that the Plaintiff/Appellant was subject to policies andprocedures ofthe both Dismas House Charities Correctional procedures, andhad an obligation to exhaust all administrative procedures available to him,and more importantly that he was not given the opportunity to do so, itshould be clear to this court that "conscience shocking" element ofprovingmalicious prosecution has been met. First and foremost, the Defendantsactions denied the Plaintiff7Appellant the ability to show the how allegedconduct deprived him ofliberty, by a distortion and corruption ofthe23Case: 13-11599 Date Filed: 04/26/2013 Page: 25 of 40
  26. 26. processes oflaw, i.e., falsification ofevidence, and other egregious conductnamely the denial ofdocuments necessary to ensuring due process, resultingultimatelyin the denial ofa fair trial Plaintiff/Appellant.We therefore argue that the trial court erred in failing to deny theAppellees Motion for Summary Judgment, and would humbly request thatOrder Granting said Summary Judgment overturned.Issue #5: Whether the lower tribunal erred in granting DefendantsMotion for Summary Judgment, by overlooking Plaintiffs /Appellantsclaims for Negligence and Gross Negligence?The Plaintiff/Appellant provided the appropriate staffmembers ofthehalfway house with copies ofall medical records indicating the severity ofhis medical conditions and any doctor recommendations concerningprogram requirements for manual labor and work outside ofthe facility.During his residency at Dismas House,the PlaintifFAppellantwasconstantly terrorized, intimidated, and humiliated without any regard for hismedical conditions or his dignity, in that he was forced to do cleaningjobswhen in fact in violation ofhis doctors orders, even going as far as toprevent his medical treatment, adding insult to injury. Furthermore, he wasnot provided mealsthat were diabetic friendly, and was givendisciplinaryaction for incident where is wife was deliveringfood as a result ofhim not24Case: 13-11599 Date Filed: 04/26/2013 Page: 26 of 40
  27. 27. receiving adequatenutrition from the halfway house. This violatesDepartment ofCorrection Policies in which, it is mandated that eachinstitutions food service program offers nutritionally balanced, appetizingmeals. Special Food and Meals, 28 C.F.R. § 547.20 and Program Statement4700.05, Food Services Manual, provide that medical diets be available toinmates who require such diets. In addition, inmates with religious dietaryrequirements may apply for the religious diet program,designed to addressthe dietary restrictions ofa variety ofdifferent religions. See ProgramStatement 5360.09, Religious Beliefs and Practices.The Plaintiff/Appellants research has found however that, a prisonofficial violates a prisoners Eighth Amendment rights, and is deemednegligent ifhe/she is deliberatelyindifferent to the prisoners seriousmedicalneeds. See Estelle v. Gamble,429 U.S. 97,103-04, 97 S.Ct. 285, 50 L.Ed.2d251 (1976). Deliberate indifference encompasses only unnecessaryandwanton infliction ofpain repugnant to the conscience ofmankind. See id.at104-06, 97 S.Ct. 285. "Subjective recklessness," as used in the criminal law,is the appropriate test for deliberate indifference. To incurliabilityunder §1983, an individual must be personally involved in the deprivation ofapersons constitutional rights. See Lozano v. Smith,718 F.2d 756, 768 (5thCir.1983)25Case: 13-11599 Date Filed: 04/26/2013 Page: 27 of 40
  28. 28. In analyzing claims ofEighth Amendment violations, the courts mustlook at discrete areas ofbasichuman needs. As we have recently held,"(A)n institutions obligationunder the eighth amendment is at an end ifitfurnishes sentenced prisoners with adequate food, clothing, shelter,sanitation, medical care, and personal safety."Wright v. Rushen, 642 F.2d1129,1132-33 (9th Cir. 1981)(citationomitted). 682 F.2d at 1246-47."In anegligence case, neither the issue of proximatecause nor the sovereignimmunity defenses become germane until it has been established that adefendant owes to a plaintiffa duty of carethat has been breached." Fox v.Custis, 372 S.E.2d 373, 375 (Va. 1988). However, in Estate ofMathes v.Ireland, 419 N.E.2d 782, 784 (Ind.Ct.App. 1981),the court held that under §319, "[f]or the duty to exist there must therefore not only be an actual takingcharge ofthe third person, there must also be a knowledge ofthe likelihoodthat he will cause bodily harm." The Defendants cannot make the claimthat they were unaware ofthe Plaintiff/Appellants medical condition as theywere provided all ofhis medical documentation, and moreover, they areunable to skate around their duty to exercise care for the Plaintiff/Appellantswellbeing, in that they are obligated by Department ofCorrectionsstandards, human rights standards as well as constitutional standards.26Case: 13-11599 Date Filed: 04/26/2013 Page: 28 of 40
  29. 29. We therefore argue that the trial court erred in failing to deny theAppellees Motion for Summary Judgment, and would humbly request thatOrder Granting said Summary Judgment overturned.Issue #6; Whether the lower tribunal erred in granting DefendantsMotion for Summary Judgment, by overlooking Plaintiffs /Appellantsclaims for violation of his First Amendment Rights?First Amendment -"Congress shall make no law respecting anestablishment ofreligion, or prohibiting the free exercise thereof; orabridging the freedom ofspeech, or of the press; or the right ofthe peoplepeaceably to assemble, and to petition the Government for a redress ofgrievances." The Defendant makes the claim that according to FederalBureau ofPrison guidelines, the Plaintiff/Appellant was not allowed toattend a church outside of5 miles from the facility. However in Dismascharities and division ofPrison Guidelines state explicitly that, "You will beable to attend weekly church services, as approved by your Counselor,maximum ofthree hours per week, including travel. Church must be within(5)milesofthe facility. (Church Bulletin andcompleted Church ReportForm must be provided upon your return back from the facility) Note:Exceptions to the (5) mile rule will only be made when your stateddenomination of worship cannot be located within five miles ofthe program.Keeping this exception in mind, and even with the Plaintiff/Appellant27Case: 13-11599 Date Filed: 04/26/2013 Page: 29 of 40
  30. 30. making an open declaration ofhis religion ofchoice being Greek Orthodox,and further making the case that the closest church is 9.5 miles away, theDefendants denied the Plaintiff/Appellants request to attend his churchservices. The Plaintiff/Appellants research has shown such guidelines donot exist and the Federal Government remains neutral regarding religiouspractice or distances to and from a religious institution at a halfway house,thus constitutinga violation ofthe Plaintiff/Appellants rights to religiousfreedom and the free exercise thereof, and further violating the United Statesstance on separation ofchurch and state.We therefore argue that the trial court erred in failing to deny theAppellees Motion for Summary Judgment, and would humbly request thatOrder Granting said Summary Judgment overturned.Issue #7: Whether the lower tribunal erred in granting DefendantsMotion for Summary Judgment, by overlooking Plaintiffs /AppeUantsclaims for violation of his Fourth Amendment Rights?Fourth Amendment-"The right ofthe people to be secure in theirpersons, houses, papers, and effects, against unreasonable searches andseizures, shall not be violated,and no Warrants shall issue, but uponprobable cause, supported by Oathor affirmation, and particularlydescribingthe place to be searched,and the persons or things to be seized."28Case: 13-11599 Date Filed: 04/26/2013 Page: 30 of 40
  31. 31. An illegalsearch was conducted ofthe vehicle that Plaintiff/Appellantdroveand propertywas removed from the vehicle without the knowledge ofthePlaintiff/Appellant and without the Plaintiff/Appellant being present at thesearch. Defendantsasserted that a cellular telephone, a phone charger andapacket ofcigarettes were found in the glove compartment ofthe carandconfiscated. Data and evidence from the surveillance cameras that containedinformation regarding the illegal search and seizure, was deliberatelydestroyed by the Defendants. Having a cellulartelephone in the car, does notrepresent a violation for prisoners on home confinement as halfway houserules and regulations are not the same as home confinement rules andregulations. Plaintiff7Appellant does not smoke, and operatinga motorvehicle without priorapprovalrepresentsa minor violation, and does notrequire incarceration."When the prosecution seeks to justify a warrantless searchby proofofvoluntaryconsent,it is not limited to proofthatconsentwas given by thedefendant, but may show that the permission to search was obtained from athird partywho possessed common authorityover or other sufficientrelationship to the premises or effects soughtto be inspected. United Statesv. Matlock, 415 U. S. 164, 171 (1974).29Case: 13-11599 Date Filed: 04/26/2013 Page: 31 of 40
  32. 32. The Fourth and Fourteenth Amendments require that a consent not becoerced, by explicit or implicit means, by implied threat or covert force. For,no matter how subtly the coercion was applied, the resulting consent wouldbe no more than a pretext for the unjustified police intrusion against whichthe Fourth Amendment is directed. Schneckloth v. Bustamonte, 412 U. S.218 (93 SC 2041,2048, 36 LE2d 854) (1973)]." United States v. Smith, 395FSupp. 1155, 1156-57 (W.D.N.Y. 1975). It is my position that a defendantssubmission to warrantless searches and seizures should not be the price ofprobation.While a probationers right ofprivacy may be justifiably diminishedduring the periodofprobation (see Inmanv. State, 124 Ga. App. 190 (2)(183 SE2d413) (1971)). "[probationary status does not convert aprobationers family, relatives and friends into second class citizensThese peopleare not stripped oftheirright ofprivacy because they may belivingwith a probationer or [s]he may be livingwith them." State v. Fogarty,supra at 151. The Supreme Court ofMontana, the only court in the countryto address the ramifications ofthe warrantless search conditionof probationon third parties living with a probationer, concluded that a search warrantbasedon probable cause must be obtained beforea probationers residence30Case: 13-11599 Date Filed: 04/26/2013 Page: 32 of 40
  33. 33. may be searched "so that the legal interests ofinnocent third persons can beadequately protected...."We therefore argue that the trial court erred in failing to deny theAppellees Motion for Summary Judgment, and would humbly request thatOrder Granting said Summary Judgment overturned.Issue #8; Whether the lower tribunal erred in granting DefendantsMotion for Summary Judgment, by overlooking Plaintiffs /Appellantsclaims for violation of his Fifth and Fourteenth Amendment Rights?th5 Amendment-" No person shall be held to answer for a capital, orotherwise infamous crime, unless on a presentment or indictment ofa GrandJury, except in cases arising in the land or naval forces, or in the Militia,whenin actual service in time ofWar or publicdanger; nor shall any personbe subject for the same offence to be twice put injeopardy oflife or limb;nor shall be compelled in any criminalcase to be a witness against himself,nor be deprivedoflife, liberty,or property, withoutdue process oflaw; norshallprivate propertybe taken for publicuse, withoutjust compensation."The Double Jeopardy Clause includes three distinct constitutionalguarantees: (1) protection against a second prosecution for the sameoffense afteran acquittal; (2) protection against a second prosecution for31Case: 13-11599 Date Filed: 04/26/2013 Page: 33 of 40
  34. 34. the same offense after a conviction; and (3) protection against multiplepunishments for the same offense.As a result ofthe alleged violation, the Plaintiff/Appellant was giventhree separate violations, on different dates, for the same incident thatoccurred in the same day, time and place, without Due Process ofLaw. Notall copies ofthe three written violations were released as requested by thediscovery. On October 20, 2010, at 6:30 A.M ., while sleeping in his bed atDismas House, the Plaintiff/Appellant was arrested by two U.S. Marshallagents and transportedto F.D.C. Miami, without any charges levied againsthim and without Due Process Law. On October 20,2010, at 6:30 A.M .,while sleepingin his bed at DismasHouse, the Plaintifi7Appellant wasarrested by two U.S. Marshall agents and transported to F.D.C. Miami,without any charges levied againsthim and without Due Process Law. Theincarceration was done without the knowledge ofUSPO and CCM Director,Carlos Rodriguez, as he did not sign the papers forthe incarceration, thusmakingit clear thatthe Defendants engaged in acampaign oferasingevidence and fabricating documents in order to coverup any suspicion oftheevents. The Plaintiff/Appellantin addition to sanctions levied upon him bythehalfway house, he was also sentenced to service an additional 81 days infederal incarceration.32Case: 13-11599 Date Filed: 04/26/2013 Page: 34 of 40
  35. 35. Fourteenth Amendment-"Section 1. "All persons born or naturalizedin the United States, and subject to the jurisdiction thereof, are citizens oftheUnited States and ofthe State wherein they reside. No State shall make orenforce any law which shall abridgethe privileges or immunities ofcitizensofthe United States; nor shall any State deprive any person oflife, liberty, orproperty, without due process oflaw; nor deny to any person within itsjurisdiction the equal protection ofthe laws."In violation of his Title VII protections and 14th Amendment, thePlaintiff/Appellantwas discriminated andharassed constantly,by theDefendants, because he was a foreigner, spoke English with an accent,practiced Greek-Orthodox Religion andhe was white. Similarly situatedresidents at Dismas house were not treated alike.We must again emphasize the fact that Anna Gisperts admission ofnot having provided BP-9 forms to Plaintiff7Appellant, provides thePlaintiff/Appellant no means ofdocumenting the abuses of process, abusesofConstitutional rights andcivil liberties on the part ofthe Defendants, andeven goesto the extent ofproviding the Plaintiff/Appellant very littlematerial documentation ofhis experiencesat the halfway house. ThePlaintiff/Appellant again asserts that, it was their intention all along to denythe Plaintiff/Appellant anopportunity to everhavea legitimate opportunity33Case: 13-11599 Date Filed: 04/26/2013 Page: 35 of 40
  36. 36. to defend himselfboth in their nonexistent in-house judiciary proceedings,when he faced the Federal Bureau ofPrisons prior to being sent back toprison, and currently in his civil action against the Defendants. Again we,bring the courts attention to Enigwe v. Zenk, No. 03-CV-854 (CBA), 2006WL 2654985, at *4 (E.D.N.Y. Sept. 15,2006) (unpublished) "denyingsummary judgment to defendants where plaintiffasserted his repeatedefforts to obtain forms were fruitless".We therefore argue that the trial court erred in failing to deny theAppellees Motion for Summary Judgment, and would humbly request thatOrder Granting said Summary Judgment overturned.Issue #9: Whether the lower tribunal erred in granting DefendantsMotion for Summary Judgment, by overlooking Plaintiffs /Appellantsclaims for violation of his Fifth and Fourteenth Amendment Rights?Eighth Amendment- "Excessivebail shall not be required, norexcessive fines imposed, nor cruel and unusual punishments inflicted.Tostate a claim under28 U.S.C. § 1983, a plaintiffmustallege facts tending toshow that: (1) he has been deprived ofa right securedby the Constitution orfederal law, and (2) thedeprivation was caused bya person or persons actingunder color ofstate law. See Flagg Bros., Inc. v. Brooks,436 U.S. 149,155,98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). The UnitedStatesSupreme Courthas34Case: 13-11599 Date Filed: 04/26/2013 Page: 36 of 40
  37. 37. H tfheld that where a privateparty has exercised powersthat are "traditionallythe exclusive prerogative ofthe state," the private party may be considered astate actor under § 1983. Rendell-Baker v. Kohn,457 U.S. 830, 842, 102S.Ct. 2764, 73 L.Ed.2d 418 (1982). Concluding that the maintenance ofaprison system has "traditionally [been] the exclusive prerogative ofthestate," courts have held that when a state contracts with a private corporationto run its prisons, the private prison employees become subject to § 1983suits. See Skelton v. Pri-Cor, Inc.,963 F.2d 100,102 (6th Cir.), cert, denied,503 U.S. 989,112 S.Ct. 1682, 118 L.Ed.2d 398 (1992); see also Lemoine v.New Horizons Ranch & Ctr.,990 F.Supp. 498, 502 (N.D.Tex.1998) (privateemployees ofresidential treatment center licensed by State ofTexas subjectto § 1983 suits).Again, as noted in our discussion ofthe Defendants instances ofblatant negligence, the Plaintiff7Appellant provided the appropriate staffmembers ofthe halfway house with copies ofall medical records indicatingthe severity ofhis medical conditionsand any doctor recommendationsconcerning program requirements for manual labor and work outside ofthefacility. During his residency at Dismas House, the Plaintiff7Appellant wasconstantly terrorized, intimidated, and humiliated without any regard for hismedicalconditions or his dignity, in that he was forcedto do cleaningjobs35Case: 13-11599 Date Filed: 04/26/2013 Page: 37 of 40
  38. 38. «, * «when in fact in violation ofhis doctors orders, even going as far as toprevent his medical treatment, adding insult to injury. Furthermore, he wasnot provided meals that were diabetic friendly, and was given disciplinaryaction for incident where is wife was delivering food as a result ofhim notreceiving addicaquate nutrition from the halfway house. When asked, "whoshould have the last say on this matter, the doctor or the federal prison",Derek Thomas answered, "We have already had this conversation. Here theBureau ofprison rules and not the doctor".In analyzing claims ofEighth Amendment violations, the courts mustlook at discrete areas ofbasic human needs. As we have recently held, "(A)n institutions obligation under the eighth amendment is at an end ifitfurnishes sentenced prisoners with adequate food, clothing, shelter,sanitation,medical care, and personal safety." Wright v. Rushen, 642 F.2d1129,1132-33 (9th Cir. 1981)(citation omitted). 682 F.2d at 1246-47.Accordinglythe Plaintiff/Appellantshouldbe awarded summaryjudgment.Conclusion36Case: 13-11599 Date Filed: 04/26/2013 Page: 38 of 40
  39. 39. The trial court misapplied the law and committed reversible errors byGranting the Appellees Motion for Summary Judgment without addressingthe key factors addressed in the aforementioned brief. We humbly requestthat Order Granting said Summary Judgment be overturned.Certificate of Service37Case: 13-11599 Date Filed: 04/26/2013 Page: 39 of 40
  40. 40. I HEREBY CERTIFY that a true and correct copy ofthe foregoing wasdelivered via U.S. Mail to the individuals and entities listed below on this&2> day of April 2013.Dismas Charities, Inc.141 N.W.I St AvenueDania, FL 33004-2835Ana GispertDismas Charities, Inc.141 N.W.I St AvenueDania, FL 33004-2835Derek ThomasDismas Charities, Inc.141 N.W.I St AvenueDania, FL 33004-2835Lashanda AdamsDismas Charities, Inc.141 N.W.I St AvenueDania, FL 33004-2835David S. Chaiet EsquireAttorney for Defendants4000 Hollywood BoulevardSuite 265-SouthHollywood, FL 33021Signature ^Traian BujduveanuPro Se Plaintifr7Appellant5601 West Broward BoulevardPlantation, Florida 33317Phone: (954) 663-776838Case: 13-11599 Date Filed: 04/26/2013 Page: 40 of 40

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