Doc. 13 11599-e

-•
IN THE UNITED STATES COURT OF APPEALS IN AND FOR THE
ELEVENTH CIRCUIT
Case No.: 13-11599-E
L.T. No.: 11-20120-CIV-SEITZ/SIMONTON
TRAIAN BUJDUVEANU,
Appellant/Plaintiff,
vs.
DISMAS CHARITIES, INC., ANA GISPERT,
DEREK THOMAS and LASHANDA ADAMS,
Appellees/Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF FLORIDA
INITIAL BRIEF OF APPELLANT TRAIAN BUJDUVEANU
Traian Bujduveanu
Pro Se Plaintiff/Appellant
5601 West Broward Boulevard
Plantation, Florida 33317
Phone: (954) 663-7768
Case: 13-11599 Date Filed: 04/26/2013 Page: 1 of 40

U.S. COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
CERTIFICATE OF INTERESTED PERSONS
AND 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 and
Corporate Disclosure Statement must be filed by the appellant with this court within 14
days after the date the appeal is docketed in this court, and must be included within the
principal brief filed by any party, and included within any petition, answer, motion or
response filed by any party. You may use this form to fulfill this requirement. In
alphabetical 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 interest
in the outcome of this case or appeal, including subsidiaries, conglomerates, affiliates and
parent corporations, including any publicly held corporation that owns 10% or more of
the party's stock, and other identifiable legal entities related to a party.
(please type or print legibly):
Aa/j s;Isseer
bete* 7//W#<?
£>/3rt/9s c/M*/7fest jtic-

Table of Citations
Wolffv. 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(E.D.N.Y. Sept. 15, 2006) (unpublished) an. 19, 2007).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 Adm'r ofBronx County, 24 N.Y.2d 65,298 N.Y.S.2d
955, 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).

. m-- s
Wright v. Rushen, 642 F.2d 1129, 1132-33 (9th Cir. 1981)(citation omitted).
682 F.2d at 1246-47
Fox 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 LE2d
854) (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.2d
185 (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.

fit
Statement of Facts
1. On July, 28,2010, with the approval ofCCM Director Carlos
Rodriguez the Plaintiff/Appellant was transfer from Colman Low
Correctional Facility to Dismas Charities, Inc. halfway house, located in
Dania, Florida.
2. Defendant/Appellee Dismas Charities, Inc., is non-profit corporation
501(c)(3) organization, who operates 28 halfway houses in 13 states that
contract 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 independent
disciplinary discretion, thus giving it discretion over minor ofprohibited
acts. Any serious sanctions required approval ofCCM, USPO and
Community Sanctions representatives.
4. Upon arrival at Dismas Charities facility, Plaintiff/Appellant signed
the acknowledgement ofall regulations as well as the receipt ofa Dismas
Charities Handbook. However, the Plaintiff7Appellant did not receive a
hard copy, as there were none available.
5. The Plaintiff/Appellant provided the appropriate staffmembers copies

ofdriver license, driving history from the Division ofMotor Vehicles in
Tallahassee, vehicle registration, and valid insurance,in compliance with
the terms and conditions necessary to obtain permission to operate a
motor vehicle during supervision. Be that as it may, the reason for which
the Plaintiff/Appellant was not approved to drive, as contended by the
Defendants, is unknown even today.
6. The Plaintiff/Appellant provided the appropriate staffmembers copies
ofall medical records indicating the severity ofhis medical conditions
and any doctor recommendations concerning programrequirements for
manual labor and work outside ofthe facility.
7. During his residency at Dismas House, the Plaintiff/Appellant was
constantly terrorized, intimidated, and humiliated without any regard for
his medical conditions or his dignity, in that he was forced to do cleaning
jobs when in fact in violation ofhis doctor's orders, even going as far as
to prevent his medical treatment, adding insult to injury. When asked,
"who should have the last say on this matter, the doctor or the federal
prison", Derek Thomas answered, "We have already had this
conversation. Here the Bureau ofprison rules and not the doctor".
8. The Defendants/Appellee openly denied the Plaintiff/Appellant's

request to attend Religious Services at a Romanian Orthodox church on
Sundays, located 16 minutes by car(9.5 miles) from the Dismas Charities
halfway house, under the pretext ofFederal Guidelines. The
Plaintiff/Appellant's research has shown such guidelines do not exist and
the Federal Government remains neutralregarding religious practice or
distancesto and from a religious institution at a halfway house, thus
constituting a violation ofthe Plaintiff7Appellantsrights to religious
freedom and the free exercise thereof, and further violating the United
States stance on separation ofchurch and state.
9. In violation ofhis Title VII protections,the Plaintiff/Appellant was
discriminated against and harassed constantly, by the
Defendants/Appellees, because he was a foreigner, spoke English with an
accent, practiced Greek-Orthodox Religion andhe was white. Similarly
situated residents at Dismas house were not treated alike.
10. On September 28,2011, the Plaintiff/Appellant was approved by the
CCM Director Carlos Rodriguez, to be transferred to home confinement,
due to severe medical problems. The USPO Office was advised and
agreedon Plaintiff7Appellant's home confinement transfer, requiringthe
Plaintiff7Appellant to report once a week to Dismashalfway house.
11. On October 13,2010, the PlaintiffAppellant drove his family

vehicle to Dismas halfway house for his bi-weekly report.
12. An illegal search was conducted ofthe vehicle that
Plaintiff7Appellant drove and property was removed from the vehicle
without the knowledge ofthe Plaintiff/Appellant andwithout the
Plaintiff/Appellant being present at the search. Defendants asserted that a
cellulartelephone, a phone charger and a packet ofcigarettes were found
in the glove compartment ofthe car and confiscated. Data and evidence
from the surveillance cameras that contained information regardingthe
illegal search and seizure, was deliberately destroyed by the Defendants.
13. Having a cellular telephone in the car, does not represent a violation
for prisoners on home confinement as halfway house rules and
regulations are not the same as home confinement rules and regulations.
Plaintiff/Appellant does not smoke, and operating a motor vehicle
without prior approval represents a minor violation, and does not require
incarceration.
14. As a result ofthis incident, the Plaintiff/Appellant was given three
separate violations, on different dates, for the same incident that occurred
in the same day, time and place, without Due Process ofLaw. Not all
copies ofthe three written violations were released as requested by the
discovery.

15. On October 20, 2010, at 6:30 A.M., while sleeping in his bed at
Dismas House, the PlaintifFAppellant was arrestedby two U.S. Marshall
agents and transported to F.D.C. Miami, without any charges levied
against him and without Due Process Law.
16. The incarcerationwas done without the knowledge ofUSPO and
CCM Director, Carlos Rodriguez, as he did not sign the papers for the
incarceration, thus making it clearthat the Defendants engaged in a
campaign oferasing evidence and fabricating documents in order to
cover up any suspicion ofthe events. The Plaintiff/Appellant is aware
that the following documents have been fabricated.
17. While incarcerated at F.D.C. Miami, no charges were ever levied
against the Plaintiff/Appellant and no investigation ofany kind was
carriedout against him. No federal employee ofF.D.C. wanted to get
involved with his case, they were aware ofthe covert and illegal actions
ofthe Defendant. Federal Department ofCorrections Miami Counselor
Price and Unit Manager Harrison, under the strict suggestions ofthe
F.D.C. warden, attempted in a few instances to contact the office ofCCM
Director, Carlos Rodriguez, to no avail.
18. The Plaintiff/Appellant was released from F.D.C. Miami on January
03,2011.

Statement of the Case
1. On January 12,2011, Appellant/Plaintiff, Traian Bujduveanu, filed
MOTION for Return ofProperty against Dismas Charities, Inc., Ana
Ginspert (Docket Entry #1).
2. On March 29th, 2011 Appellan Appellant/Plaintiff, Traian
Bujduveanu, filed AMENDED COMPLAINT ofDamagesagainst
Dismas Charities, Inc., Ana Ginspert, Derek Thomas, Adams Leshota
(Docket Entry #14).
3. On May 4th, 2011, Defendants/Appellees filed MOTION to Dismiss
Amended Complaint (Docket Entry #26).
4. On May 24th, 2011 Appellant/Plaintiff, Traian Bujduveanu, filed
MOTION to Strike MOTION to Dismiss and Incorporated Memorandum
of Law.
5. On May 25th, 2011 Defendants/Appellees filed RESPONSE to Motion
re MOTION to Strike (Docket Entry #35).
6. On June 6th, 2011, Judged from lower tribunal entered ENDORSED
ORDER granting Plaintiffs Motion to Strike Document from the Docket
(Docket Entry #40).
7. On August 5th, 2011 Appellant/Plaintiff, Traian Bujduveanu filed

MOTION for the Production ofDocuments and Electronically Stored
Information,Under Rule 34 by Traian Bujduveanu. The Judge oflower
tribunal entered GENERAL ORDER ON DISCOVERY OBJECTIONS,
denying, without prejudice, Plaintiffs Motion for the Production of
Documents and Electronically Stored Informations, Under Rule 34
(Docket Entries #50, 51, and 52).
8. On August 30, 2011 Appellant/Plaintiff, Traian Bujduveanu filed
MOTION to Compel Production ofDocuments and Electronically Stored
Information (Docket Entry #53). The Defendants/Appellees replied with
NOTICE ofCompliance with Mediation Order (Docket Entry #55).
On September 9th, 2011, Defendants/Appellee filed RESPONSE in
Opposition MOTION to Compel Production ofDocuments and
Electronically Stored Informations (Docket Entry #56).
Appellant/Plaintiff, Traian Bujduveanu filed MOTION to Compel
Second Request for Production ofDocuments, First and Second Set of
Interrogatories. On September 28th the Defendants/Appellees filed
RESPONSE in Opposition re MOTION to Compel Second Request
forProduction ofDocuments, First and Second Set ofInterrogatories
(Docket Entry # 57, 58, 59).
9. After being unable to compel discovery, and mediation ending in an

impasses Appellant/Plaintiff, Traian Bujduveanu filed NOTICE of
Motion for Summary Judgment (Docket Entry #70).
10. On December 16th, 2011 Defendant/Appellees responded with a
MOTION for Summary Judgment (Docket Entry #83).
11. On March 29th 2013, the Judge from the lower tribunal entered an
ORDER granting Defendants' Motion for Summary Judgment; deny
Plaintiffs Motion for Summary Judgment, and entered a FINAL
JUDGMENT in favor ofthe Defendants against the Plaintiff (Docket
Entry#131andl32).
10

*• *
Argument(s)
Issue #1: Whether the lower tribunal erred in granting Defendants
Motion for Summary Judgment, by overlooking Defendants/Appellees
Apparent Abuse of Process?
Abuse ofprocess is a cause ofaction in tort arising from one party
making a malicious and deliberate misuse or perversion ofregularly issued
court 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 of
a liberty interest must receive "(1) advance written notice ofthe disciplinary
charges; (2) an opportunity, when consistent with institutional safety and
correctional goals, to call witnesses and to present documentary evidence in
his defense; (3) a written statement by the fact finder ofthe evidence relied
on 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, 94
S.Ct. at 2978. Even though Smith did not have a liberty interest in remaining
at Gardner, he was entitled to these procedural safeguards because he risked
the loss ofliberty entailed in isolation time, a sanction which he ultimately
11

received. See Parenti v. Ponte, 727 F.2d 21,25 (1st Cir.1984). The
Defendants have an obligation to comply with all statutes, regulations and
guidelines from the National Archives and Records Administration. The
CCM office based in Miami reports and abides by the rules and regulations
set by the Federal Bureau ofPrison. Accordingly, the CCM office has to use
proper Federal Forms each time a prisoner is concerned. All documents
must be documented in the Sentry system to be fully in compliance with all
statutes, regulations and guidelines. The abuses ofprocess ofare as follows:
1. No copies ofthe Transfer Orders (BP-S399.058) nor Transfer
Reciept (BP-821.051) were ever provided to the
Plaintiff7Appellant, because they did not and do not exist to this
day.
2. The transfer ofa halfway house resident back to the Federal
Prison it is NOT done thru a Memorandum. The US Federal
Government requires that an approved form (BP-S399.058) and
(BP-821.051), is used for any actiontaken by a federal
employee. In this case,the request MUST be placed in the
SENTRY SYSTEM to the US Marshal, and then other Transfer
and custody forms must be filled out with the appropriate dates
and signatures, and a copy must be given to the transferred
12

inmate. This has not taken place because charges or
investigations againstthe Plaintiff/Appellant, were never levied
by the Federal Bureau ofPrisons.This was a gross Fabrication
with a premeditated cover-up.
3. The Letter from Derek Thomas to Carlos Rodrigues, which is a
fabricated document also, it has no date. Without a date, this
letter is not an official document. Even more disturbing is the
fact that Authority to transfer federal inmates from non-federal
facilities 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 on
October 20,2010, states that "Mr. Bujduveanu's adjustment to
the program has been poor, as witnessed by his inability to
follow all ofthe rules and regulations set forth by Dismas
Charities and the Bureau of Prisons." Yet all other documents
state that he is cooperative and that he did all community
transition courses, and that he will no longer benefit from the
halfway house. Which leadsthe Plaintiff7Appellantand the
court to question whether alleged minor violations ofwarrant
13

such a drastic change in opinion, and moreover, whether this
change in opinion was done as matter of fact or simply to
remove PlaintifffAppellant from the facility.
6. In a letter from Ana Gispert to Bobbie Lowery, dated January
5,2011 she is instructing him to make certified documents
stating that they have attempted to return the property to the
family ofthe Plaintiff7Appellant. At this time the property of
the PlaintifE^Appellant is still in the Derek Thomas' office and
under his control. She is practically instructing them to lie and
make false documents, as my family will attest to the fact that
they were never contacted to retrieve my property.
7. The application ofa violation Code 108 "Possession,
Manufacture, or introduction ofa hazardous tool (Tools most
likely to be used in an escapeor escape attempt or to serve as a
weapon capable ofdoing ofdoing serious bodily harm to
others; orthose hazardous to institutional securityor personal
safety", to include that ofa cell phone. First and foremost, a
cell phone unless used a detonation device cannot be seen as
threat to personal orinstitutional safety. At best this alleged
violation should have been charged as a Code 305, "Possession
14

of anything not authorized for retention or receipt by the
inmate, not issued to through regularchannels. However,
given the fact that the Plaintiff/Appellant was on home
confinement, even this chargewould not be a perfect fit given
the fact that those on home confinement are afforded additional
rights and liberties as they arenot subject to 24 hour
monitoring by facility. Ultimately, his chargeswere trumped
up to such that he would be charged with a violation that might
cause his removal from the programratherthan one that is
more in line with the Plaintiff7Appellant's alleged actions that
took place that day. Given the harmless nature ofa cell phone,
and its inability to enable an inmate to escape from a
correctional facility, as a tool used for serious bodily harm, it is
clear that there is some underlying malicious intent behind the
use ofthis violation code as opposed to one that was more
appropriate.
We therefore arguethat the trial court erredin failing to deny the
Appellee's Motion for Summary Judgment, and would humbly request that
OrderGranting said Summary Judgment overturned.
15

Issue #2; Whether the lower tribunal erred in granting Defendants
Motion for Summary Judgment, by overlooking Plaintiffs /Appellant's
claims for False Arrest and Imprisonment?
The tort offalse imprisonment or false arrest contains the following
elements:
The Restatement (2nd) ofTorts, §31,reads: An actor is subject to
liability to another for false imprisonment if:
(a) he acts intending to confine the other or a third person within
boundaries fixed by the actor, and
(b) his act directly or indirectly results in such a confinement ofthe
other, 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 plaintiffs
choosing,
4. a causal link, and
5. Awareness of the confinement.
16

The Defendant/Appelleee argued that one who is imprisoned couldn't be
falsely arrested, and furthermore that it was the US Marshals at the direction
ofthe Federal Bureau ofPrisons. However, it was the direct and indirect
actions ofthe Defendant that lead to the confinement ofthe
Plaintiff/Appellant. Although, the Defendant was not the one that physically
placed the Plaintiff7Appellant in specific confined area and held him against
his will, their acts were the causal act that lead to the Plaintiff/Appellant
being placed in prison. Causation is, ofcourse, a requiredelement ofa false
imprisonment. See Oviatt v. Pearce, 954 F.2d 1470,1474 (9th Cir. 1992). A
probation/paroleofficer need not actuallyuse force to detain a
probation/parolee illegally. Although false imprisonment usually follows
false arrest, false imprisonment may take placeeven after a valid arrest.
However, a police officer may be held to have "initiated" a criminal
proceeding ifhe knowingly provided false information to the prosecutor or
otherwise interfered with the prosecutor's informed discretion. See, Reed,
77 F.3d at 1054; Torres, 966 F.Supp. at 1365. In such cases, "an intelligent
exercise ofthe ... [prosecutor's] discretion becomes impossible," anda
prosecutionbased on the false information is deemed "procured by the
person giving the false information."However, a privatecitizen may be held
liable for false arrest under § 1983 ifhe or shecaused the plaintiffto be
17

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 the
Order Granting said Summary Judgment overturned.
claims for Assault and Battery?
The Defendants/Appellee maked the claim that they are entitled to
summary judgment as the Plaintiffhas not provided any facts to support
allegations ofassault and battery. It is clear that no such record ofthe
assaults and battery that took place as the Defendant's refused to provide the
Plaintiff/Appellant with and means ofdocumenting said actions. The
procedures established by the Bureau ofPrisons require that appeals to the
General Counsel shall include copies ofForms BP-9, BP-10, and their
responses. BOP Program Statement (P.S.) 1330.7, p 7(b). The only
exception to this requirement is where the inmate has not yet received a
response. P.S. 1330.7, p 6(6). You must use up all administrative solutions
before suing in federal court. It would be an anomalous result, indeed, if
prison officials could foreclose prison inmates from filing civil rights
18

lawsuitsin federal court simply by depriving them ofthe means to fulfill a
mandatory 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 prisoner
could not get grievance policy or forms barred summary judgment for
defendants).
Anna Gispert's admission ofnot having provided BP-9 forms to
Plaintiff7Appellant, provides the Plaintiff/Appellant no means of
documenting the abuses of process, abuses ofConstitutional rights and civil
liberties on the part ofthe Defendants, and even goes to the extent of
providing the Plaintiff/Appellant very little material documentation ofhis
experiences at the halfway house (Exhibit #5 to this motion). However, it
was their intention all along to deny the Plaintiff/Appellant an opportunity to
ever have a legitimate opportunity to defend himselfboth in their
nonexistent in-house judiciary proceedings, when he faced the Federal
Bureau ofPrisons prior to being sent back to prison, and currently in his
civil action against 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 his
repeated efforts to obtain forms were fruitless".
19

Wetherefore argue thatthetrial court erred in failing to deny the
Appellee's Motion for Summary Judgment, andwould humbly request that
Order Granting said SummaryJudgmentoverturned.
claims for Malicious Prosecution?
The Defendants argued that since the Plaintiff/Appellant has not, and
cannot establish the elements ofmaliciousprosecution,especially the key
elements ofthe commencement ofjudicial proceeding on the plaintiff, by
the defendant and termination ofthe in favor ofthe Plaintiff, that the
Defendants should have been awarded summary judgment.
The common law tort ofmalicious prosecution originated as a remedy
for an individual who had been subjected to a maliciously instituted criminal
charge. "All federal claims for malicious prosecution are borrowed from the
common law tort... [which] imposes liability on a private person who
institutes criminal proceedings against an innocent person without probable
cause for an improper purpose. The federal claim under [42 U.S.C.] section
1983 for malicious prosecution differs from the state civil suit in that it
requires that state officials acting 'under color oflaw1 institute the criminal
proceedings against the plaintiffand thereby deprive him ofrights secured
20

under the Constitution." Torres v. Superintendent ofPolice, 893 F.2d 404,
409 (1st Cir.1990).
Yet again to combatthe Defendant's/Appellees claimthatthey did not
initiate prosecution againstthe Plaintiff, it is undeniable that the US
Marshalls, and Division of Corrections would not have even been aware of
any sort ofalleged violation, had it not been forthe request that were made
by the Defendants. Yet again, it was the direct and indirect actions ofthe
Defendant, which lead to the prosecution, and subsequent confinement of
the Plaintiff/Appellant. Section 28(5)(c) statesthat issue preclusion does not
apply if"the party sought to be precluded, as a result ofthe conduct ofhis
adversaryor other special circumstances, did not have an adequate
opportunity or incentive to obtain a full and fair adjudication in the initial
action." Specifically, there are "various factors which should enter into a
determination whether a party has had his day in court [including] such
considerations as ... the availability ofnew evidence..." Schwartz v. Public
Adm'r ofBronx County, 24 N.Y.2d 65,298 N.Y.S.2d 955, 961,246 N.E.2d
725, 729 (1969).
Two aspects ofthe Danner's preliminary hearing demonstrates that
they were not afforded a full and fair opportunity to litigate whether
21

'* »
probable cause existed for their arrest. First, the determination ofprobable
cause was basedon the false testimony ofDawnFarris at preliminary
hearing. At trial sherecanted virtually all the key accusations necessary to
conclude that a crime had occurredandthat the Danners were likely to have
committed it. Second, there were key facts that were not and could not have
been discovered before the preliminary hearing despitethe district attorney's
open file policy. Until cross examination ofthe other sales clerk at
preliminary hearing, no one knew thata customer, Melody Winn, had been
presentwhen the alleged theft took place. Nor was it known that the precise
time ofthe allegedtheft had been recorded by the store's cash registeron the
customer's check. Winn's testimony at trial,that she had seen nothing out of
the ordinaryduring her purchase, was key to the Danner's defense and to the
not- guilty verdict.
Anna Gispert's admission ofnot having provided BP-9 forms to
Plaintiff/Appellant, provides the Plaintiff/Appellant no means of
documenting the abuses ofprocess, abuses ofConstitutional rights and civil
liberties on the part ofthe Defendants, and even goes to the extent of
providing the Plaintiff/Appellant very little material documentation ofhis
experiences at the halfway house. Although, "Malicious prosecution does
not per se abridge rights secured by the Constitution." Morales v. Ramirez,
22

906 F.2d 784, 788 (1st Cir.1990). In articulating the elements ofa malicious
prosecution claim under 42 U.S.C. Sec. 1983, we have held that "the
complaint must assert thatthe malicious conductwas so egregious that it
violated substantive or procedural due processrightsunder the Fourteenth
Amendment." Torres, 893 F.2d at409. "[F]or substantive due process
purposes, the allegedmalicious prosecution must be conscience shocking."
Id. at410. "For procedural due process purposes ... the plaintiffusuallymust
show the alleged conduct deprived him ofliberty by a distortion and
corruption ofthe processes oflaw, i.e., corruption ofwitnesses, falsification
ofevidence, or some other egregious conductresultingin the denial ofa fair
trial.... In addition, the plaintiffmust show there was no adequate statepost
deprivation remedy available to rectify the harm.
Given the fact that the Plaintiff/Appellant was subject to policies and
procedures ofthe both Dismas House Charities Correctional procedures, and
had an obligation to exhaust all administrative procedures available to him,
and more importantly that he was not given the opportunity to do so, it
should be clear to this court that "conscience shocking" element ofproving
malicious prosecution has been met. First and foremost, the Defendants'
actions denied the Plaintiff7Appellant the ability to show the how alleged
conduct deprived him ofliberty, by a distortion and corruption ofthe
23

processes oflaw, i.e., falsification ofevidence, and other egregious conduct
namely the denial ofdocuments necessary to ensuring due process, resulting
ultimatelyin the denial ofa fair trial Plaintiff/Appellant.
claims for Negligence and Gross Negligence?
The Plaintiff/Appellant provided the appropriate staffmembers ofthe
halfway house with copies ofall medical records indicating the severity of
his medical conditions and any doctor recommendations concerning
program requirements for manual labor and work outside ofthe facility.
During his residency at Dismas House,the PlaintifFAppellantwas
constantly terrorized, intimidated, and humiliated without any regard for his
medical conditions or his dignity, in that he was forced to do cleaningjobs
when in fact in violation ofhis doctor's orders, even going as far as to
prevent his medical treatment, adding insult to injury. Furthermore, he was
not provided mealsthat were diabetic friendly, and was givendisciplinary
action for incident where is wife was deliveringfood as a result ofhim not
24

receiving adequatenutrition from the halfway house. This violates
Department ofCorrection Policies in which, it is mandated that each
institution's food service program offers nutritionally balanced, appetizing
meals. Special Food and Meals, 28 C.F.R. § 547.20 and Program Statement
4700.05, Food Services Manual, provide that medical diets be available to
inmates who require such diets. In addition, inmates with religious dietary
requirements may apply for the religious diet program,designed to address
the dietary restrictions ofa variety ofdifferent religions. See Program
Statement 5360.09, Religious Beliefs and Practices.
The Plaintiff/Appellant's research has found however that, a prison
official violates a prisoner's Eighth Amendment rights, and is deemed
negligent ifhe/she is deliberatelyindifferent to the prisoner's seriousmedical
needs. See Estelle v. Gamble,429 U.S. 97,103-04, 97 S.Ct. 285, 50 L.Ed.2d
251 (1976). Deliberate indifference encompasses only unnecessaryand
wanton infliction ofpain repugnant to the conscience ofmankind. See id.at
104-06, 97 S.Ct. 285. "Subjective recklessness," as used in the criminal law,
is the appropriate test for deliberate indifference. To incurliabilityunder §
1983, an individual must be personally involved in the deprivation ofa
person's constitutional rights. See Lozano v. Smith,718 F.2d 756, 768 (5th
Cir.1983)
25

In analyzing claims ofEighth Amendment violations, the courts must
look at discrete areas ofbasichuman needs. As we have recently held,"
'(A)n institution's obligationunder the eighth amendment is at an end ifit
furnishes sentenced prisoners with adequate food, clothing, shelter,
sanitation, medical care, and personal safety.'"Wright v. Rushen, 642 F.2d
1129,1132-33 (9th Cir. 1981)(citationomitted). 682 F.2d at 1246-47."In a
negligence case, neither the issue of proximatecause nor the sovereign
immunity defenses become germane until it has been established that a
defendant 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 taking
charge ofthe third person, there must also be a knowledge ofthe likelihood
that he will cause bodily harm." The Defendants cannot make the claim
that they were unaware ofthe Plaintiff/Appellants medical condition as they
were provided all ofhis medical documentation, and moreover, they are
unable to skate around their duty to exercise care for the Plaintiff/Appellants
wellbeing, in that they are obligated by Department ofCorrections
standards, human rights standards as well as constitutional standards.
26

claims for violation of his First Amendment Rights?
First Amendment -"Congress shall make no law respecting an
establishment ofreligion, or prohibiting the free exercise thereof; or
abridging the freedom ofspeech, or of the press; or the right ofthe people
peaceably to assemble, and to petition the Government for a redress of
grievances." The Defendant makes the claim that according to Federal
Bureau ofPrison guidelines, the Plaintiff/Appellant was not allowed to
attend a church outside of5 miles from the facility. However in Dismas
charities and division ofPrison Guidelines state explicitly that, "You will be
able 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 Report
Form must be provided upon your return back from the facility) Note:
Exceptions to the (5) mile rule will only be made when your stated
denomination of worship cannot be located within five miles ofthe program.
Keeping this exception in mind, and even with the Plaintiff/Appellant
27

making an open declaration ofhis religion ofchoice being Greek Orthodox,
and further making the case that the closest church is 9.5 miles away, the
Defendants denied the Plaintiff/Appellant's request to attend his church
services. The Plaintiff/Appellant's research has shown such guidelines do
not exist and the Federal Government remains neutral regarding religious
practice or distances to and from a religious institution at a halfway house,
thus constitutinga violation ofthe Plaintiff/Appellants rights to religious
freedom and the free exercise thereof, and further violating the United States
stance on separation ofchurch and state.
Motion for Summary Judgment, by overlooking Plaintiffs /AppeUant's
claims for violation of his Fourth Amendment Rights?
Fourth Amendment-"The right ofthe people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated,and no Warrants shall issue, but upon
probable cause, supported by Oathor affirmation, and particularly
describingthe place to be searched,and the persons or things to be seized."
28

An illegalsearch was conducted ofthe vehicle that Plaintiff/Appellantdrove
and propertywas removed from the vehicle without the knowledge ofthe
Plaintiff/Appellant and without the Plaintiff/Appellant being present at the
search. Defendantsasserted that a cellular telephone, a phone charger anda
packet ofcigarettes were found in the glove compartment ofthe carand
confiscated. Data and evidence from the surveillance cameras that contained
information regarding the illegal search and seizure, was deliberately
destroyed by the Defendants. Having a cellulartelephone in the car, does not
represent a violation for prisoners on home confinement as halfway house
rules and regulations are not the same as home confinement rules and
regulations. Plaintiff7Appellant does not smoke, and operatinga motor
vehicle without priorapprovalrepresentsa minor violation, and does not
require incarceration.
"When the prosecution seeks to justify a warrantless searchby proof
ofvoluntaryconsent,it is not limited to proofthatconsentwas given by the
defendant, but may show that the permission to search was obtained from a
third partywho possessed common authorityover or other sufficient
relationship to the premises or effects soughtto be inspected.' United States
v. Matlock, 415 U. S. 164, 171 (1974).
29

The Fourth and Fourteenth Amendments require that a consent not be
coerced, by explicit or implicit means, by implied threat or covert force. For,
no matter how subtly the coercion was applied, the resulting 'consent' would
be no more than a pretext for the unjustified police intrusion against which
the Fourth Amendment is directed.' Schneckloth v. Bustamonte, 412 U. S.
218 (93 SC 2041,2048, 36 LE2d 854) (1973)]." United States v. Smith, 395
FSupp. 1155, 1156-57 (W.D.N.Y. 1975). It is my position that a defendant's
submission to warrantless searches and seizures should not be the price of
probation.
While a probationer's right ofprivacy may be justifiably diminished
during the periodofprobation (see Inmanv. State, 124 Ga. App. 190 (2)
(183 SE2d413) (1971)). "[probationary status does not convert a
probationer's family, relatives and friends into 'second class' citizens
These peopleare not stripped oftheirright ofprivacy because they may be
livingwith a probationer or [s]he may be livingwith them." State v. Fogarty,
supra at 151. The Supreme Court ofMontana, the only court in the country
to address the ramifications ofthe warrantless search conditionof probation
on third parties living with a probationer, concluded that a search warrant
basedon probable cause must be obtained beforea probationer's residence
30

may be searched "so that the legal interests ofinnocent third persons can be
adequately protected...."
claims for violation of his Fifth and Fourteenth Amendment Rights?
th
5 Amendment-" No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or indictment ofa Grand
Jury, 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 person
be 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; nor
shallprivate propertybe taken for publicuse, withoutjust compensation."
The Double Jeopardy Clause includes three distinct constitutional
guarantees: (1) protection against a second prosecution for the same
offense afteran acquittal; (2) protection against a second prosecution for
31

the same offense after a conviction; and (3) protection against multiple
punishments for the same offense.
As a result ofthe alleged violation, the Plaintiff/Appellant was given
three separate violations, on different dates, for the same incident that
occurred in the same day, time and place, without Due Process ofLaw. Not
all copies ofthe three written violations were released as requested by the
discovery. On October 20, 2010, at 6:30 A.M ., while sleeping in his bed at
Dismas House, the Plaintiff/Appellant was arrested by two U.S. Marshall
agents and transportedto F.D.C. Miami, without any charges levied against
him and without Due Process Law. On October 20,2010, at 6:30 A.M .,
while sleepingin his bed at DismasHouse, the Plaintifi7Appellant was
arrested by two U.S. Marshall agents and transported to F.D.C. Miami,
without any charges levied againsthim and without Due Process Law. The
incarceration was done without the knowledge ofUSPO and CCM Director,
Carlos Rodriguez, as he did not sign the papers forthe incarceration, thus
makingit clear thatthe Defendants engaged in acampaign oferasing
evidence and fabricating documents in order to coverup any suspicion ofthe
events. The Plaintiff/Appellantin addition to sanctions levied upon him by
thehalfway house, he was also sentenced to service an additional 81 days in
federal incarceration.
32

Fourteenth Amendment-"Section 1. "All persons born or naturalized
in the United States, and subject to the jurisdiction thereof, are citizens ofthe
United States and ofthe State wherein they reside. No State shall make or
enforce any law which shall abridgethe privileges or immunities ofcitizens
ofthe United States; nor shall any State deprive any person oflife, liberty, or
property, without due process oflaw; nor deny to any person within its
jurisdiction the equal protection ofthe laws."
In violation of his Title VII protections and 14th Amendment, the
Plaintiff/Appellantwas discriminated andharassed constantly,by the
Defendants, because he was a foreigner, spoke English with an accent,
practiced Greek-Orthodox Religion andhe was white. Similarly situated
residents at Dismas house were not treated alike.
We must again emphasize the fact that Anna Gispert's admission of
not having provided BP-9 forms to Plaintiff7Appellant, provides the
Plaintiff/Appellant no means ofdocumenting the abuses of process, abuses
ofConstitutional rights andcivil liberties on the part ofthe Defendants, and
even goesto the extent ofproviding the Plaintiff/Appellant very little
material documentation ofhis experiencesat the halfway house. The
Plaintiff/Appellant again asserts that, it was their intention all along to deny
the Plaintiff/Appellant anopportunity to everhavea legitimate opportunity
33

to defend himselfboth in their nonexistent in-house judiciary proceedings,
when he faced the Federal Bureau ofPrisons prior to being sent back to
prison, and currently in his civil action against the Defendants. Again we,
bring the courts attention to 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 his repeated
efforts to obtain forms were fruitless".
claims for violation of his Fifth and Fourteenth Amendment Rights?
Eighth Amendment- "Excessivebail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.'To
state a claim under28 U.S.C. § 1983, a plaintiffmustallege facts tending to
show that: (1) he has been deprived ofa right securedby the Constitution or
federal law, and (2) thedeprivation was caused bya person or persons acting
under 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 Courthas
34

H tf
held that where a privateparty has exercised powersthat are "traditionally
the exclusive prerogative ofthe state," the private party may be considered a
state actor under § 1983. Rendell-Baker v. Kohn,457 U.S. 830, 842, 102
S.Ct. 2764, 73 L.Ed.2d 418 (1982). Concluding that the maintenance ofa
prison system has "traditionally [been] the exclusive prerogative ofthe
state," courts have held that when a state contracts with a private corporation
to run its prisons, the private prison employees become subject to § 1983
suits. 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) (private
employees ofresidential treatment center licensed by State ofTexas subject
to § 1983 suits).
Again, as noted in our discussion ofthe Defendants' instances of
blatant negligence, the Plaintiff7Appellant provided the appropriate staff
members ofthe halfway house with copies ofall medical records indicating
the severity ofhis medical conditionsand any doctor recommendations
concerning program requirements for manual labor and work outside ofthe
facility. During his residency at Dismas House, the Plaintiff7Appellant was
constantly terrorized, intimidated, and humiliated without any regard for his
medicalconditions or his dignity, in that he was forcedto do cleaningjobs
35

«, * «
when in fact in violation ofhis doctor's orders, even going as far as to
prevent his medical treatment, adding insult to injury. Furthermore, he was
not provided meals that were diabetic friendly, and was given disciplinary
action for incident where is wife was delivering food as a result ofhim not
receiving addicaquate nutrition from the halfway house. When asked, "who
should have the last say on this matter, the doctor or the federal prison",
Derek Thomas answered, "We have already had this conversation. Here the
Bureau ofprison rules and not the doctor".
In analyzing claims ofEighth Amendment violations, the courts must
look at discrete areas ofbasic human needs. As we have recently held, "
'(A)n institution's obligation under the eighth amendment is at an end ifit
furnishes sentenced prisoners with adequate food, clothing, shelter,
sanitation,medical care, and personal safety.'" Wright v. Rushen, 642 F.2d
1129,1132-33 (9th Cir. 1981)(citation omitted). 682 F.2d at 1246-47.
Accordinglythe Plaintiff/Appellantshouldbe awarded summaryjudgment.
Conclusion
36

The trial court misapplied the law and committed reversible errors by
Granting the Appellee's Motion for Summary Judgment without addressing
the key factors addressed in the aforementioned brief. We humbly request
that Order Granting said Summary Judgment be overturned.
Certificate of Service
37

I HEREBY CERTIFY that a true and correct copy ofthe foregoing was
delivered 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 Avenue
Dania, FL 33004-2835
Ana Gispert
141 N.W.I St Avenue
Dania, FL 33004-2835
Derek Thomas
141 N.W.I St Avenue
Dania, FL 33004-2835
Lashanda Adams
141 N.W.I St Avenue
Dania, FL 33004-2835
David S. Chaiet Esquire
Attorney for Defendants
4000 Hollywood Boulevard
Suite 265-South
Hollywood, FL 33021
Signature ^
Traian Bujduveanu
Pro Se Plaintifr7Appellant
5601 West Broward Boulevard
Plantation, Florida 33317
Phone: (954) 663-7768
38

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