Doc.126

Case 1:11-cv-20120-AMS Document 126 Entered on FLSD Docket 11/16/2012 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 11-20120-CIV-SEITZ/SIMONTON

TRAIAN BUJDUVEANU,

Plaintiff,

vs.

DISMAS CHARITIES, INC., ANA GISPERT,
DEREK THOMAS and ADAMS LESHOTA

Defendants.
/

DEFENDANTS' RESPONSE TO PLAINTIFF'S
SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT

Pursuant to this Court's October 25, 2012, Order, Docket Entry ("DE") 124, Defendants

Dismas Charities, Inc., Ana Gispert, Derek Thomas and Lashanda Adams, by and through their

undersigned counsel, through Federal Rule of Civil Procedure 56 and Local Rule 56.1, file their
response to Plaintiffs supplemental motion for summary judgment (DE 125).
Plaintiffs Motion should be dismissed because of his failure to follow Local Rule 56.1(a)

requiring that a motion for summary judgment must be accompanied by a statement ofmaterial
facts containing specific citations to supporting materials in the record. Plaintiff has been
previously advised by this Court on this requirement and the specifics of Rule 56.1 in its Order
Striking Statement of Facts entered on December 1, 2011 (DE 76) and again on December 7,

2012 (DE 82).

Plaintiffs Amended Complaint also remains deficient as it fails to meet the thresholds

established by Magistrate Judge Simonton in her Report and Recommendation dismissing

Plaintiffs Complaint (DE 94), which was affirmed by this Court (DE 98). Because the



Amended Complaint fails to state a claim upon which relief can be granted, the motion for

summary judgment is consequently deficient and should be denied.

I. Procedural History

This Court is well versed on the material facts related to this case. Magistrate Judge

Simonton outlined these facts in her comprehensive Report and Recommendation dated February

7, 2012, (DE 94). In that Report Judge Simonton recommended dismissal of Plaintiffs

Complaint (DE 14, noted in the Record as an Amended Complaint).

Judge Simonton reserved the right for Plaintiff to file an amended complaint, however,

dismissed with prejudice Plaintiffs claims under the Double Jeopardy Clause, Bivens claims

against Dismas Charities, Inc., and the claims against the individual defendants Gispert, Thomas,

and Adams under the Eighth Amendment. The Report and Recommendations were affirmed and

adopted by this Court in the Order dated March 16, 2012 (DE 98).

Plaintiff subsequently filed an Amended Complaint on March 28, 2012 (DE 101).

Defendants, pursuant to this Court's instructions, filed an answer to the Amended Complaint

although a motion to dismiss would have been the more appropriate response. Notwithstanding,

pursuant to the March 16, 2012, Order, Defendants filed a supplement motion for summary

judgment (DE 103) seeking dismissal of the Amended Complaint, which has been fully briefed

and stands submitted for decision.

This Response addresses the deficiency of Plaintiff s Amended Complaint (DE 101) and

the corresponding deficiency of his Renewed Second Motion for Summary Judgment (DE 125).



II. The Second Amended Complaint

The Second Amended Complaint names as Defendants Dismas Charities, Inc., Ana

Gispert, Derek Thomas, and LaShanda Adams. The inclusion of Defendants Gispert, Thomas,

and Adams appears however to be stylistic. Plaintiff clarifies that each "were authorized to act

on behalf of the organization in an official capacity" and the Amended Complaint does not state

that they acted in any other capacity. This leads to the conclusion that while Plaintiff named

each individual their inclusion is as agents and the suit is against Dismas alone—meaning that

judgment is sought against Dismas alone.

For his claims against Dismas, Plaintiff alleges violations of the 1st Amendment (Count

I), 5th Amendment (Count II), 14th Amendment (Count III), claims for negligence and gross

negligence (Count IV), Abuse of Process (Count V), and Malicious Prosecution (Count VI).

This Court previously dismissed in some form all of these claims in affirming the

Magistrate's Report and Recommendation (DE 98). For each, this Court was also very clear

what deficiency existed in Plaintiffs pleading and the need to meet a minimum standard for such

claims to proceed. Plaintiff has failed to meet those minimum standards and so initially

Plaintiffs Renewed Second Motion for Summary Judgment should be denied because the claims

themselves are legally insufficient.

Count 1:1st Amendment

For example, as to Count I, allegations concerning the 1st Amendment, Plaintiff was

warned that this claim was insufficient because no allegation was made that a Defendant acted in

response to Plaintiffs exercise of free speech. Plaintiff perhaps recognizing that no claim could

be stated meeting this requirement states in paragraph 18 that he was "denied the ability to attend



a Romanian Orthodox Church located on State Road 7, in Pembroke Pines." There is no

allegation that the denial was in retaliation to any exercise of free speech.

Count II: 5th Amendment

Plaintiff re-asserts his 5th Amendment claim in paragraphs 21-24 of the Amended

Complaint. In its Order dated March 16, 2012 (DE 98), this Court directed Plaintiff to make

clear the basis of his due process claim. Plaintiffhas chosen to say that the basis of this claim is

his removal from Dismas to FDC Miami. As Magistrate Simonton already addressed in the

Report and Recommendation on pages 40-49, this is not a sufficient claim under Sandin v.

Conner, 515 U.S. 472 (1995) and Asquith v. Dep't ofCorr., 186 F.3d 407 (3rd Cir. 1999).

Count III: 14th Amendment and Title VII

Magistrate Simonton on pages 50-53 of the Report and Recommendation carefully

analyzed the factual substance of claims concerning discrimination and recommended that they

be dismissed, which was affirmed by this Court. Plaintiff has repacked the same facts under

Title VII and the 14th Amendment, but the claims remain deficient because Dismas is not a state

actor nor Plaintiffs employer under Title VII.

Count IV: Negligence and Gross Negligence

This Court in its Order dated March 16, 2012 (DE 98) commented that "at a bare

minimum, Bujduveanu needed to allege that he actually performed the requested tasks before he

could begin to state a claim under this theory." The Amended Complaint continues to miss this

element as he references in paragraph 32 only being given directives, not that he actually

complied with any of these directives.



Count V and VI: Abuse ofProcess and Malicious Prosecution

This Court in its Order dated March 16, 2012 (DE 98) affirmed dismissal of these claims.

The malicious prosecution claim was affirmed to be dismissed because, as an uncontested fact,

Plaintiff was not indicted for any crime. As to abuse of process, Plaintiff has repacked facts for

this claim with a bit more detail, but the substance remains the same as a complaint about the

disciplinary process. Magistrate Simonton rejected these same assertions on pages 61-62 of the

Report and Recommendation.

III. Plaintiffs Renewed Second Motion for Summary Judgment

PlaintiffProvides No Factual Basis For Summary Judgment

The Renewed Second Motion for Summary Judgment is far less concise than the

Amended Complaint and seems to be a restatement of all prior claims already dismissed with

prejudice, plus a few additional comments that suggest Plaintiff is seeking summary judgment on

claims that have never been asserted. Plaintiff includes conclusory statements with no specific

facts or factual support and similarly provides a legal argument that is essentially string cites

from unrelated cases. The proposed factual statements lack dates, times, and or even specifics as

to the individuals involved. And although the theme of the Amended Complaint is a general

denial of rights, Plaintiff completely fails to state the date a right was denied, the person who

denied his rights, or even an explanation of how a right was denied.

In terms of complying with the requirements under the rules of procedure and local rules,

Plaintiff has not and the motion lacks notarization, affidavits, and attaches documents that are not

properly authenticated. As noted above, Plaintiffs Statement of Material Facts in addition to



lacking proper citation contains hearsay and generally unsupported allegations. One such

example is Plaintiffs allegation that he was "tortured and humiliated" without any specifics.

The Motion Seeks Judgment on Claims Not Assertedin theAmendedComplaint

Plaintiff alleges violations of the 1st Amendment (Count I), 5th Amendment (Count II),

14th Amendment (Count III), claims for negligence and gross negligence (Count IV), Abuse of

Process (Count V), and Malicious Prosecution (Count VI). Plaintiffs motion for summary

judgment includes "new" claims for intentional infliction of emotional distress, cruel and

unusual punishment, 42 U.S.C. 1983, unlawful seizure of property, and specific federal statutory

violations. Plaintiffs Motion is essentially trial by ambush, and all of these suggested claims

should be disregarded by this Court as an improper attempt by Plaintiff to further amend his

pleadings.

On pages 14-16, Plaintiff requests summary judgment for his claim of emotional distress

and his right to be free from cruel and unusual punishment, i.e., a claim under the 8th

Amendment. Both claims were dismissed in Docket Entry 98 and not restated in the Amended

Complaint. Similarly, on page 3, he discusses violations of "42 U.S.C. 1983" while not having

any claim for this in his Amended Complaint. This Court dismissed these claims because

Dismas is not a state actor.

On pages 9-11, Plaintiff requests summary judgment on his right to be free from unlawful

seizure of property or person. There is no claim in the Amended Complaint for this and. Even if

there were, these claims were also dismissed by Docket Entry 98.



On pages 3 and 4 of the Motion alleges violation of 18 U.S.C. 1001, 18 U.S.C. 371, 28

U.S.C. 371. These federal statutory claims have never been raised before and have no

application to this case.

The Motion Does Not Otherwise Support Judgment

On page 16, Plaintiff requests judgment on his rights to freedom of expression and abuse

of process. The freedom of expression claim (1st Amendment) remains a deficient claim as

discussed above. The abuse of process claim was likewise dismissed and although restated in the

Amended Complaint still fails to state a claim as discussed above.

On pages 15, Plaintiff in substance requests judgment in a broad discrimination claim

under Title VII. As said before, Dismas was not Plaintiffs employer.

On page 17, Plaintiff requests judgment on his negligence and gross negligence claims.

He offers no additional support for these claims beyond what is plead in the Amended Complaint

and, as discussed above, they are deficient.

On pages 11-12, Plaintiff requests summary judgment onhis right to due process. Within

this discussion he also claims violations of the 5th, 8th, and 14th Amendments. These claims

have been addressed above or otherwise dismissed with prejudice by this Court in Docket Entry

98 affirming the Report and Recommendation. A brief restatement of the rational supporting

dismissal of constitutional claims follows.


CASE NO.: 11 -20120-CIV-SEITZ/SIMONTON

Bivens Type Claims Are Barred

Claims Against Dismas

On pages 13-14, Plaintiff requests summary judgment on his malicious prosecution

claim. Within this discussion he also claims violations of the 4th, 5th, 6th, 8th, and 14th

Amendment. To avoid redundancy, these likewise were addressed in Docket Entry 98.

Even if Dismas was acting under federal law, Plaintiff cannot pursue constitutional

claims against Dismas since the Supreme Court has unequivocally held that a private prison is

not liable under Bivens Correctional Services Corp., v. Malesko, 534 U.S. 61 (2001). Therefore,

as the Court previously ruled (Docket Number 94, p. 15 and 25-26) all constitutional claims

asserted against Dismas must be dismissed with prejudice.

In Correctional Services Corp., v. Malesko, 534 U.S. 61 (2001), the United States

Supreme Court expressly held that Bivens liability could not reach private prison entities such as

Dismas, even if that entity was operating under color of federal law. In Malesko, the Supreme

Court concluded that a Bivens action was not available against the private prison entity for

several reasons, but most notably because the purpose of Bivens is to "deter individual federal

officers from committing constitutional violations." Id. at 70. The Court cited to its prior ruling

in FDIC v. Meyer, 510 U.S. 471 (1994) and reiterated that "the threat of a suit against an

individual's employer was not the kind of deterrence contemplated by Bivens. Id. Thus, the

Court surmised, "if a corporate defendant is available for suit, claimants will focus their

collection efforts on it, and not the individual directly responsible for the alleged injury." Id. at

71. The Court, therefore, concluded that the plaintiff in that action could not maintain a Bivens



action against the private prison entity, notwithstanding the fact that the Court implicitly

accepted that the entity was operating under color of law.

Similarly, in this action, there is no dispute that Dismas is a private entity that is

operating a halfway house which is the subject of Plaintiff s claims raised under Bivens. Thus,

pursuant to Malesko, Plaintiff is absolutely foreclosed from bringing a Bivens action against

Dismas and claims for violations of the United States Constitution must be dismissed against

Dismaswith prejudice in accordance with the Court's prior rulings and Federal case law.

Claims Against Individual Employees

Assuming that this Court deems the Amended Complaint to assert claims against the

individual employee defendants, those constitutional claims are likewise barred. The Fourteenth

Amendment states, in relevant part, that "no State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United States; nor shall any State deprive

any person of life, liberty, or property, without due process of law; nor deny to any person within

its jurisdiction the equal protection of the laws." As none of the individual defendants are state

actors, and the Fourteenth Amendment applies only to state actors, the Fourteenth Amendment is

not applicable.

In addition, the alleged actions of Gispert, Adams and Thomas (which are denied) were

not committed by a federal officer and did not arise under federal law. It is uncontested that the

individual employees are not federal officers. So, the only inquiry is whether their alleged acts

arose under federal law, which the facts establish did not occur.

To exist under federal law, a "close nexus" exists when the action results (a) from "the

[s]tate's exercise of coercive power," (b) when the state gives either significant overt or covert



encouragement to the action, (c) when a private actor willfully participates in "joint activity with

the [sjtate or its agents," (d) when the action is controlled by an "agency of the state," (e) when

the state delegated a public function to the private actor, (f) when the action is "entwined with

governmental policies," or (g) when government is "entwined in [the private actor's]

management or control." Brentwood Academy v. Tenn.Secondary School Athletic Ass'n, 531

U.S. 288, 296 (2001). However, when the state "mere[ly] approv[es] [of] or acquiesce[s]" in

private action, there is no close nexus sufficient to constitute state action. See American Mfrs.

Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52 (1999).

Plaintiff alleges that the individual defendants terrorized the Plaintiff with regards to his

medical condition, made him perform cleaning jobs, prevented him from obtaining medical

treatment, discriminated against him because he was a foreigner and would not let him attend

Church services. In light of these allegations, plaintiff failed to allege or prove the sufficient

nexus as these alleged actions did not arise under federal law.

IV. Plaintiffs Refusal to be Deposed

The underlying problem which has fueled the continuation of this case is Plaintiffs

endless avoidance to be deposed. Absent a deposition taken under oath, Defendants and this

Court appear to be engaged in a chase with Plaintiff to discover the nature of his claims and the

support he has for his allegations. The Amended Complaint is functionally the third variation of

Plaintiffs claims. Taking into consideration this and Plaintiffs failure to provide support of

material facts for his claims, Defendants' designated facts should be taken as established for

purposes of this Motion for Summary Judgment and at a minimum Plaintiffs pleadings should

be stricken.

10



Defendants filed a Motion to Strike Plaintiffs Pleadings for failing to appear for

depositions. (DE 78 and 89). Plaintiff was set for his deposition on October 10, 2011. The

deposition was cancelled at the request of the Plaintiff. The Plaintiff was reset for deposition on

November 11, 2011 and again reset for deposition on December 5, 2011. The Plaintiff failed to

appear for his depositions on November 11 and December 5, 2011. Despite the fact that the

Plaintiff claimed at that time he had medical issues that prevent him from appearing for

depositions, Plaintiff was able to appear for mediation on November 1, 2011, prepare a Motion

for Summary Judgment (Docket 72-75). Further, Plaintiff was well enough to file additional

briefs, including the 18 page single spaced brief, with case citations, along with various Motions,

Objections to the Magistrates Report and an Amended Complaint. (DE 86, 90, 96, and 100).

Rule 37(d) deals with sanctions used when a party fails to cooperate in discovery and

"allows the court to strike out pleadings and render default judgment against the disobedient

party." Plaintiffs failure to comply with the Rules of Civil Procedure merit striking his motion

for summary judgment and directing that the designated facts of Defendants be taken as

established for purposes of the action, and, therefore, dismissing his Amended Complaint.

11



V. CONCLUSION

For the reasons set forth above, Defendants would move this Court for an Order denying

Plaintiffs Motion for Summary Judgment.

Respectfully submitted,
EISINGER, BROWN, LEWIS, FRANKEL, & CHAIET, P.A.
Attorneys for Defendants
4000 Hollywood Boulevard
Suite 265-South
Hollywood, FL 33021
(954) 894-8000
(954) 894-8015 Fax

BY: /S/ David S. Chaiet
DAVID S. CHAIET, ESQUIRE
FBN: 963798

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 16th day of November, 2012,1 electronically filed the
foregoing documentwith the Clerk of the Court using CM/ECF. I also certify that the foregoing
document is being served this day on all counsel of record or pro se parties identified on the
attached Service List in the manner specified, either via transmission of Notices of Electronic
Filing generated by CM/ECF or in some other authorized manner for those counsel or parties
who are authorized to receive electronically Notices of Electronic Filing.

/s/ David S. Chaiet
DAVID S. CHAIET, ESQUIRE
Florida Bar No. 963798

SERVICE LIST

Traian Bujduveanu v. Dismas Charities, Inc., et al.
Case No..: 11-20120-CIV-SEITZ/SIMONTON
United States District Court, Southern District of Florida

Traian Bujduveanu
Pro Se Plaintiff
5601 W. Broward Blvd.
Plantation, FL 33317
Tel: (954) 316-3828
Email: orionav@msn.com

12

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