Document 103

Case 1:11-cv-20120-AMS Document 103 Entered on FLSD Docket 04/12/2012 Page 1 of 25

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

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

TRAIAN BUJDUVEANU,

Plaintiff,

vs.

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

Defendants.
_________________________________________/

DEFENDANTS SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT AND
INCORPORATED MEMORANDUM OF LAW IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT

Pursuant to this Court’s March 12, 2012 Order (Docket Number 98), Defendants Dismas

Charities, Inc., Ana Gispert, Derek Thomas and Lashanda Adams, incorrectly identified as

Adams Leshota, (collectively “Defendants”) by and through their undersigned counsel, pursuant

to Federal Rule of Civil Procedure 56 and Local Rule 7.5, file their Supplemental Motion for

Summary Judgment and Incorporated Memorandum of Law in Support of their Motion for

Summary Judgment against Traian Bujduveanu (“Plaintiff”) as follows:

The Defendants incorporate, as though fully set forth herein their prior Motion to Strike

Plaintiff’s Pleadings for Failure to Appear for Deposition, Motions for Summary Judgment, Prior

Response and Reply Briefs to Motions for Summary Judgment, Statement of Undisputed Facts

and Orders of the Court (Docket Numbers 78, 83, 83-1, 83-2, 88-1, 91 94 and 98)



INTRODUCTION

Plaintiff, a former Federal Inmate, filed a lawsuit against his residential reentry center,

Dismas, and three of its employees, Gispert, Thomas, and Adams. The Amended Complaint

(Docket 101) contains 40 paragraphs of unsupported and vague allegations, three alleged federal

theories of recovery (Violations of the First, Fifth and Fourteenth Amendments), and three

alleged state law theories of recovery (Abuse of Process, Negligence and Malicious

Prosecution)—all arising from his violation of a Bureau of Prison’s condition to not drive an

automobile or posses a cell phone, which caused him to be transferred from Dismas back to a

Federal Prison to complete the remaining 81 days of his Federal Prison sentence. Despite the

fact that he was ultimately released from Federal custody, the Plaintiff seeks to exact his personal

vendetta and revenge upon Defendants and the prison system through this frivolous lawsuit.

While Defendants would have filed another Motion to Dismiss, the Court ordered Defendants to

answer.

SUMMARY OF ARGUMENT

Plaintiff was transferred to Dismas’ Dania facility as a transition point from federal

prison system back to into the community. Dismas, as a residential reentry center, assists

inmates in employment, counseling, and other matters to allow them to become productive,

contributing individuals in their families and communities upon release. Due to health issues,

Plaintiff, after approval from the Federal Bureau of Prisons, was transferred from Dismas’ Dania

facility to home confinement subject to the terms and conditions of his initial entry into the

facility as mandated by the Federal Bureau of Prisons.

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These conditions included the Plaintiff’s agreement not to drive without the permission or

consent of Dismas and not to possess contraband, including cell phones. When the Plaintiff

drove to Dismas and was found to be in possession of a cell phone in the car, Dismas reported

Plaintiff’s violations to the Federal Bureau of Prisons. The Federal Bureau of Prisons then had

the United States Marshall’s Service return the Plaintiff to the Federal Detention Center-Miami,

where he subsequently served out the last 81 days of his federal prison sentence after the Bureau

of Prisons independently found Plaintiff guilty of the violations.

As an inmate still under sentence, the Federal Bureau of Prisons (“BOP”), not the

Defendants, made all decisions concerning his custodial placement. After his violations of rules

while at Dismas’ facility, the BOP decided to remove him from the program and he was returned

by the BOP (via the U.S. Marshall service) to a federal prison to serve out the remainder of his

sentence. Plaintiff, therefore, fails to state a cause of action and all Defendants must be awarded

summary judgment.

STATEMENT OF UNDISPUTED FACTS

Defendants filed a separate Statement of Undisputed Facts and Affidavit of Ana Gispert,

which is incorporated as though fully set forth herein. (Docket 83-1 and 83-2)

ARGUMENT AND CITATION TO AUTHORITY

1. The Plaintiff cannot maintain any Federal Constitutional Action against Dismas.

The Plaintiff in Counts I, II and III has sued Dismas for Constitutional Rights violations

under the First, Fifth and Fourteenth Amendments. With respect to Dismas Charities, Inc., even

if Dismas was acting under federal law, the Plaintiff is unable to pursue his constitutional claims

against Dismas since the Supreme Court has unequivocally held that a private prison is not liable

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under Bivens Correctional Services Corp., v. Malesko, 534 U.S. 61 (2001). Therefore, as the

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

against Dismas must be dismissed with prejudice.

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

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

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

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

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

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

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

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

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

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

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

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

accepted that the entity was operating under color of law.

Similarly, in this action, there is no dispute that Dismas Charities is an otherwise private

entity that is operating a halfway house which is the subject of the Plaintiff’s claims raised under

Bivens. Thus, pursuant to Malesko, the Plaintiff is absolutely foreclosed from bringing a Bivens

action against Dismas and those claims must be dismissed against Dismas Charities, with

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

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2. The Plaintiff cannot maintain a Bivens or Fourteenth Amendment Claim
against Gispert, Adams and Thomas.

The Plaintiff claimed that his Fourteenth Amendment due process rights were violated by

Gispert, Adams and Thomas. The Fourteenth Amendment states, in relevant part, that “no State

shall make or enforce any law which shall abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

As none of the Defendants are state actors, and the Fourteenth Amendment applies only to state

actors, the Fourteenth Amendment is not applicable. Accordingly, all Fourteenth Amendment

claims must be dismissed with prejudice.

Similar to Dismas, the Plaintiff cannot maintain Bivens actions against the individual

Defendants for alleged Constitutional violations. With respect to Dismas Charities, Inc., even if

that entity is acting under Federal law, the Plaintiff is unable to pursue his constitutional claims

against that entity since the Supreme Court has unequivocally held that a private prison is not

liable under Bivens. Correctional Services Corp., v. Malesko, 534 U.S. 61 (2001). Accordingly,

the Plaintiff should not be able to maintain a Bivens claim against employees of a private prison.

The alleged actions of Gispert, Adams and Thomas (which are denied) were not committed by a

federal officer and did not arise under federal law. Gispert, Adams and Thomas are clearly not

federal officers.

Second, their alleged actions listed above did not arise under Federal law. A “close

nexus” exists when the action results (a) from “the [s]tate’s exercise of coercive power,” (b)

when the state gives either significant overt or covert encouragement to the action, (c) when a

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private actor willfully participates in “joint activity with the [s]tate or its agents,” (d) when the

action is controlled by an “agency of the state,” (e) when the state delegated a public function to

the private actor, (f) when the action is “entwined with governmental policies,” or (g) when

government is “entwined in [the private actor’s] management or control.” Brentwood Academy v.

Tenn.Secondary School Athletic Ass’n, 531 U.S. 288, 296 (2001). However, when the state

“mere[ly] approv[es] [of] or acquiesce[s]” in private action, there is no close nexus sufficient to

constitute state action. See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52 (1999) In

the Amended Complaint, Plaintiff alleges that the individual Defendants terrorized the Plaintiff

with regards to his medical condition, made him perform cleaning jobs, prevented him from

obtaining medical treatment, discriminated against him because he was a foreigner and would

not let him attend Church services. In light of these allegations, the Plaintiff failed to allege or

prove the sufficient nexus as these alleged actions did not arise under Federal law.

In addition, there is a split among the Circuit Court of Appeals as to whether the

employees of a private prison qualify as federal actors for purpose of establishing Bivens

liability. In Holly v. Scott, 434 F.3d 287, 293-94 (4th Cir. 2006), the Fourth Circuit held that the

employees of a private corporation operating prisons that contracted with the federal government

are not federal actors because “correctional facilities have never been exclusively public,”

meaning that they are not performing a public function that would create a close nexus between

them and the federal government. Holly, 434 F.3d at 293 (quoting Richardson v. McKnight, 521

U.S. 399, 405 (1997)). In Holly, the Fourth Circuit also stated that there was no indication the

government had a stake in the corporation, that federal policy was involved in the violation, or

that the employees in question “colluded with federal officials in making the relevant decisions.”

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434 F.3d at 292-93. Furthermore, in Holly, the Fourth Circuit also noted that the cases in which

the Supreme Court has extended Bivens liability all involved “individual federal officers” and

claimed it would not serve the purpose of Bivens, which is to deter “individual federal officers,”

by classifying the employees of private actors acting under color of federal law as federal actors.

434 F.3d at 291 (quoting Malesko, 534 U.S. at 70). In this case, there are no allegations of

collusion between the Federal government and the individual employees. In fact, the Plaintiff

alleges that the Defendants were acting on their own accord. Therefore, Gispert, Adams and

Thomas are entitled to summary judgment on the Constitutional claims.

3. The Plaintiff cannot maintain a cause of action under the First Amendment

The Plaintiff claims the Defendants violated his First Amendment right to freedom of

expression by prohibiting him from attending a Roman Orthodox Church located over five miles

from Dismas, located in Dania Beach, Florida. The First Amendment states that “Congress shall

pass no law . . .abridging freedom of speech,” which means that the government cannot “restrict

expression because of its message, its ideas, its subject matter, or its content.” See United States

v. Stevens, 130 S.Ct. 1577, 1584 (2010). Although the Supreme Court has acknowledged that a

Bivens cause of action may be alleged against federal officers for retaliation in the First

Amendment context, see Hartman v. Moore, 547 U.S.250, 256 (2006), in the case at bar, the

Plaintiff fails to state a claim for retaliation under the First Amendment.

For a prisoner to state a First Amendment retaliation claim, the prisoner must establish:

(1) that his speech or act was constitutionally protected; (2) that the defendant's retaliatory

conduct adversely affected the protected speech or act; and (3) that there is a causal connection

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between the retaliatory actions and the adverse effect on the speech or act. Douglas v. Yates, 535

F.3d 1316, 1321 (11th Cir. 2008).

In this case, the Plaintiff cannot prove that his rights under the First Amendment were

violated. Plaintiff concedes that he cannot attend a house of worship more than five miles from

the facility. Exceptions can be made if the denomination of worship cannot be located within

five miles of the program. Plaintiff claims that Gispert and Adams prevented him from attending

a specific Romanian Orthodox Church on State Road 7, Pembroke Pines. As this Church was

more than five miles away from Dismas, Defendants properly denied the request.

It appears that the Plaintiff’s complaint is not that the Defendants did not permit him to

attend a Romanian Orthodox Church but the specific Romanian Church he selected and wanted

to attend. Since there are no allegations that the Defendants would not permit him to attend a

Romanian Church that was closer to Dismas even if it was slightly more than five miles away,

the Plaintiff cannot carry his burden of proof. See Green v. Mowery, 212 Fed. Appx. 918, 920

(11th Cir. 2006) (noting summary judgment appropriate on First Amendment retaliation claim

where prisoner failed to identify specific grievance he filed related to discipline and failed to

identify specific retaliation related to any grievance). Thus, even taking the Plaintiff’s allegations

as true, the Plaintiff has failed to state a claim for First Amendment retaliation under the facts as

alleged in the Amended Complaint

The Defendants did not prohibit the Plaintiff from worshiping in his chosen

denomination. The Defendants merely would not approve his request to worship at a specific

church as opposed to his right to worship at all. Accordingly, his freedom of religion was not

violated.

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Accepting the allegation in the Amended Complaint as true, the Defendants did not

prohibit the Plaintiff from attending services at a Romanian Orthodox Church. They simply

would not let him attend services at a specific Church in Pembroke Pines that he unilaterally

selected as opposed to not permitting him to worship at all. The Plaintiff confuses the right to

worship at a Romanian Orthodox Church with worshipping at a Romanian Orthodox Church of

his choosing. The Plaintiff admittedly did not ask to worship at a Romanian Orthodox Church

closer to Dismas. Plaintiff only claims he was not permitted to attend a specific Church as

opposed to being able to worship at any Romanian Orthodox Church. Absent proof that the

Defendants would not permit him to worship at a Church closer to Dismas, the Plaintiff’s First

Amendment claims fail legally and factually.

4. The Plaintiff cannot maintain a cause of action for Violations of the Fifth
Amendment.

The Plaintiff claims that his transfer from the halfway house program back to prison

violated his Fifth Amendment Rights. The Fifth Amendment of the United States Constitution

provides in relevant part that no person shall be deprived “of life, liberty, or property, without

due process of law.” U.S. Const. Amendment V. Procedural due process generally requires that a

person with a constitutionally protected liberty or property interest receive “notice and an

opportunity to be heard” before the government deprives him of such liberty or property. Wolff v.

McDonnell, 418 U.S. 539, 558 (1974). Thus, with any procedural due process challenge, a court

must first determine whether the injury claimed by the plaintiff is within the scope of the Due

Process Clause. Kirby v. Siegelman, 195 F. 3d 1285 (11th Cir. 1999) (citing Bass v. Perrin, 170

F.3d 1312, 1318 (11th Cir. 1999)).

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The Plaintiff in this case alleges, among other things, that his due process rights were

violated when he was moved from the Dismas Charity halfway house and incarcerated in the

Federal Detention Center. These allegations are vague and conclusory, and fail to identify any

statutes or regulations that any of the individual Defendants purportedly failed to adhere to in

violation of the Plaintiff’s due process rights. The Amended Complaint fails to specify which

Defendant allegedly violated his rights and when the violation occurred.

The Fifth Amendment states that “no person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in

cases arising in the land or naval forces, or in the Militia, when in actual service in time of War

or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy

of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process of law; nor shall private property be

taken for public use, without just compensation.” The Plaintiff cannot prove that he was

deprived of due process by the Defendants.

The Plaintiff, as is evidenced by the attachments to the Complaint, did receive proper

notice of his violation. The Disciplinary Report was even signed by the Plaintiff. The Plaintiff

even wrote a response to the Report. The Plaintiff clearly violated a rule (no driving without

permission of Dismas) that he was notified of and agreed to as part of his assignment to Dismas.

The Plaintiff also agreed to abide by the rules, regulations and disciplinary procedures as

condition of his halfway house release. (Docket 83-2, Affidavit of Ana Gispert, p. 7-15 and

Exhibits 2, 3 & 4)

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Plaintiff was transferred by the Bureau of Prisons into the custody of FDC Miami, where

a subsequent hearing was held by the Bureau of Prisons concerning his possession of a cell

phone and driving a vehicle without authorization. He was found guilty of these offenses at the

hearing and required to serve the remaining 68 day balance of his initial sentence at FDC Miami.

A copy of the Plaintiff’s United States Bureau of Prison Center Discipline Committee Report is

attached to the Docket 83-2, Affidavit of Ana Gispert, p. 34, Exhibit 11. Accordingly, due

process was afforded as the Plaintiff received notice of his violations and a hearing regarding his

violations. At his hearing, the Plaintiff was found to be guilty by the Bureau of Prisons.

The Plaintiff’s claims that the Bureau of Prisons, USPO and CCM Director did not know

about his return to prison is clearly without merit. Obviously, the Federal Bureau of Prisons and

USPO knew about Plaintiff’s return to prison as they returned him to Prison and housed him in

Prison. Certainly, the Plaintiff is not alleging that he stayed in a Federal Prison without the

Federal Bureau of Prison and the Director of the Facility knowing he was there. The Federal

Bureau of Prisons clearly knew he was at a the federal facility as the Bureau of Prisons held a

hearing concerning his possession of a cell phone and driving a vehicle without authorization.

Plaintiff was found guilty of these offenses at the hearing and required to serve the remaining 68

day balance of his initial sentence at FDC Miami, at the direction of the Federal Bureau of

Prisons, not Dismas.

A prisoner has no due process liberty interest in early release. See, e.g., Wottlin v.

Fleming, 136 F.3d 1032, 1036 (5th Cir.1998). Nor does a prisoner possess a constitutional right

to be placed, or not to be placed, in a particular prison facility.McKune v. Lile, 536 U.S. 24, 39

(2002); Meachum v. Fano, 427 U.S. 215, 225 (1976). Further, a prisoner has no constitutionally

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protected interest in rehabilitative programs, Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976), or an

“equal protection” interest ineligibility for assignment to halfway houses, McLean v. Crabtree,

173 F.3d 1176, 1185 (9th Cir.1999). Also, there is no “constitutionally protected liberty interest”

in being classified at a certain security level. Kramer v. Donald, 286 Fed. Appx. 674, 676 (11th

Cir. 2008).

Plaintiff in the instant case was not on parole at the time of the incidents occurred that

gave rise to his action. Rather, the Plaintiff had been placed in the Dismas Charities’ halfway

house to conclude his sentence, and thereafter had been placed on home confinement due to his

medical conditions. In addition, at the time that the Plaintiff was transferred to the Federal

Detention Center in Miami, he had already had his housing quarters changed back to the

Halfway House for three weeks for purportedly committing a vehicle infraction.

In Sandin v. Conner, 515 U.S. 472, 484 (1995), the Court ruled that the prisoner’s

removal from the work program without a hearing did not violate due process because the

prisoner did not demonstrate that his removal from the program resulted in treatment that was

atypical of what inmates normally endured in daily prison life. Accord Callender v. Sioux City

Residential Treatment Facility, 88 F.3d 666, 669 (8th Cir. 1996) (concluding that removing an

inmate from a work release program and returning him to prison did not deprive the inmate of a

liberty interest under Sandin because it was “not atypical of what inmates have to endure in daily

prison life”); Dominique v. Weld, 73 F.3d 1156, 1159-60(1st Cir.1996) (same). The Court stated,

since “an inmate is normally incarcerated in prison, [the defendant] did not impose atypical and

significant hardship on him in relation to the ordinary incidents of prison life and, therefore, did

not deprive him of a protected liberty interest.”

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In this case, the Plaintiff’s confinement was more like the work release prisoner than a

pre-parolee prisoner. There is no question that the Plaintiff in this action had not completed his

sentence when he was placed at the halfway house. In addition, this conclusion is supported by

the fact that the Plaintiff seemingly does not take issue with Dismas Charities’ right to remove

him from home confinement and place him back at the halfway house based upon his improper

use of a vehicle. Moreover, although he complains that his health suffered because of chores he

was given at the halfway house once he was removed from home confinement, he does not

challenge the right of that entity to require him to complete chores. Therefore, it does not appear

that the Plaintiff “lived a life generally free of the incidents of imprisonment.”

Although the conditions at the halfway house clearly were different than those conditions

that the Plaintiff encountered at FDC Miami, the Plaintiff does not allege, nor does it appear, that

the conditions at FDC Miami,“impose[d] atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life.” Regardless, his incarceration at the FDC Miami

was controlled by the Federal Bureau of Prisons, not Dismas. Accordingly, Defendants are not

responsible for anything that occurred during his incarceration in a Federal Prisons.

Since the Plaintiff’s residence at Dismas Charities is the functional equivalent of

incarceration, he cannot establish a liberty interest in remaining there. The Plaintiff forgets that

he was still an inmate serving out a federal prison sentence at all times as opposed to being a

“free man.” For the reasons set forth above, the Plaintiff did not have not have a liberty interest

in remaining at Dismas. Even assuming a liberty interest, the Plaintiff has failed to allege

sufficient facts to tie the individual Defendants to this claim. With respect to the Plaintiff’s claim

that his due process rights were violated when he was imprisoned at the Federal Detention

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Center, the Plaintiff’s claims of a due process violation on this issue concern actions taken by the

U.S. Marshals and the Federal Detention Center as is set forth in paragraph 23 of the Amended

Complaint, not the Defendants. (Docket 101)

The Plaintiff does not allege that once he was removed from Dismas House and placed in

FDC that any of the Defendants in this action were tasked with the responsibility of providing

the Plaintiff an administrative hearing, or any other due process proceedings. Rather, the Plaintiff

alleges that, “FDC Miami represents only a holding facility and not a prison.

Although the Plaintiff claims he was given no notice of his impending incarceration and

was not presented with the charges against him, stating he was imprisoned without any charges

being filed against him, the Plaintiff seemingly contradicts these statements by also alleging that

his incarceration was the result of the Community Correctional Manager and U.S. Marshals not

knowing that the “alleged minor incident,” was already resolved (Docket 14 at 5-6), implying he

was incarcerated as a result of his violation of regulations which prohibited him from driving

(See Docket 14 at 5-6).

If the Plaintiff’s incarceration was a result of driving without authorization, then he did

receive notice of his violation of this provision prior to incarceration, via the disciplinary report

that the Plaintiff attached to his Amended Complaint in this action. Thus, the Plaintiff has not

alleged any facts that would plausibly support a finding that he was deprived of due process

when he was incarcerated at the Federal Detention Center, and Defendants awarded summary

judgment.

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5. The Plaintiff cannot maintain a cause of action for Violations of the
Fourteenth Amendment.

Plaintiff also appears to be alleging that his Due Process Rights were violated because he

was not provided with BP-9 Form. However, the exhibits to the initial Complaint, specifically,

Exhibit E, demonstrate that the requests for BP-9 forms were made to Case Manager Price and

Unit Counselor of the Federal Bureau of Prisons, not Dismas or its employees. Accordingly, the

Defendants are entitled to summary judgment for any causes arising from violations of any due

process rights.

With respect to the Plaintiff’s claim that the Defendants denied him the opportunity to

file a formal administrative remedy request, the Eleventh Circuit has held that prisoners do not

have a constitutionally protected liberty interest in access to prison grievance procedures.

Bingham v. Thomas, 654 F.3d 1171, 1177 (11th Cir. 2011). This means that the Plaintiff cannot

state that the denial of the opportunity to file a formal administrative remedy was a due process

violation as a matter of law, meaning this claim should be dismissed for failure to state a claim

upon which relief can be granted.

The Plaintiff claims that he was discriminated against and harassed because he was a

foreigner, spoke with an accent, was white and practiced the Greek-Orthodox religion. (Docket

101, paragraph 26). However, these are conclusory allegations. The Plaintiff fails to describe

how he was discriminated against, who discriminated against him and when the discrimination

occurred. His claim that “other residents were equally treated” also is conclusory with no factual

support. Plaintiff has no standing to make claims for other inmates. Accordingly, the Plaintiff has

not alleged or proven any facts to support this baseless allegation and Defendants are entitled to

summary judgment.

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6. The Plaintiff cannot maintain a cause of action for negligence and gross
negligence.

The elements required to maintain a cause of action for negligence are duty and a breach

of that duty which causes damages. Clay Electric Cooperative v. Johnson, 873 So. 2d 1182,

1185 (Fla. 2004). The Plaintiff cannot maintain a cause of action for negligence or gross

negligence because the Plaintiff cannot show any duty owed by the Defendants to the Plaintiff

that was breached. Gross negligence requires conduct “that was so reckless or wanting in care

that it constituted a conscious disregard or indifference to the life, safety, or rights of persons

exposed to such conduct.” F.S.A. § 768.72(2)(b)(2011). Although the Plaintiff has stated why he

believes the Defendants were negligent, he has not stated how any of the Defendants breached a

duty they owed to him or that any of their breaches was the cause of his damages, nor has he

stated what damages resulted from any breach of their duty. The Plaintiff also has failed to allege

or prove any facts or actions that were so reckless or wanting in care that it constituted a

conscious disregard or indifference to the life, safety, or rights of persons exposed to such

conduct to support an action for gross negligence.

The Plaintiff only states that his negligence claim stems from “mental anguish” he

suffered at the hands of Dismas staff, without mentioning what harm he suffered or which

Dismas staff members breached their duty to him or caused him damages. Moreover, the

Plaintiff does not mention gross negligence other than when he states it as a claim upon which he

is trying to recover.

The Plaintiff fails to set forth any facts demonstrating negligence. Instead, his complaint

contains conclusory allegations which do not alleged negligence. He claims he was terrorized,

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forced to perform cleaning jobs, was found to be capable of dusting, told to vacuum and was not

permitted to receive an unauthorized meal from his wife. (Docket 101, paragraphs 31-33).

These allegations, even if accepted as true, do not constitute negligence.

The Amended Complaint further fails to allege which of the Defendants were negligent,

their acts of negligence or of what harm the Plaintiff suffered. For example, being asked to dust

and vacuum, are not negligent. Further, the Complaint does not allege that he performed the

work, only that he was asked to perform the work. Accordingly, the Plaintiff’s claim is merely

conclusory statement that the Defendants were negligent without any factual support or

allegations. See Iqbal, 129 S.Ct. at 1949;see Erickson, 551 U.S. at 94. Thus, the Plaintiff has not

stated a claim against the Defendants that is “plausible on its face” and Defendants must be

granted summary judgment on the negligence claims.. See Iqbal, 129 S.Ct. at 1949.

7. The Plaintiff cannot maintain a cause of action for abuse of process.

To maintain a cause of action for abuse of process, the Plaintiff must prove three

elements: 1) that the Defendant made an illegal or improper use of process; 2) that the

Defendant had ulterior motives or purposes in exercising such illegal, improper or perverted use

of process and 3) that, as a result of such action on the part of the Defendant, the Plaintiff

suffered damage. S & I Investments v. Payless Flea Market, 36 So. 3d 909, 917 (Fla. 4th DCA

2010). The usual case of abuse of process involves some form of extortion. Id. The Plaintiff

must prove that the process was used for an immediate purpose other than that for which it was

designed. Biondo v. Powers, 805 So. 2d 67, 69 (Fla. 4th DCA 2002).

There is no evidence supporting these claims against any of the defendants. For example,

the Plaintiff alleges that various Defendants made false statements in documents, used wrong

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forms, used wrong code numbers and made omissions in the forms. (Docket 101, paragraph 35)

Even if any Defendant used any process for spite or ulterior purpose, this type of alleged action

does not and cannot constitute abuse of process. Under Florida law, there is no abuse of process

when the process is used to accomplish the result for which it was created, regardless of the

incidental or concurrent motive of spite or ulterior purpose. S & I Investment, 36 So. 3d at 917.

In this case, the documents described in the Amended Complaint were used for its proper

purpose-specifically to document an alleged violation by someone serving a sentence for a

criminal act, document conduct and document the Plaintiff’s actions and behavior. Even if any

Defendant took action against the Plaintiff for any personal reason, since the alleged process was

used to accomplish the result for which is was created, the motive of any Defendant is irrelevant.

(Docket 83-1, Affidavit of Ana Gispert, p. 21-36) Accordingly, the Plaintiff cannot maintain a

cause of action for abuse of process and Defendants are entitled to final summary judgment.

8. The Plaintiff cannot maintain a cause of action for malicious prosecution.

To maintain a cause of action for malicious prosecution, the Plaintiff must prove 1) the

commencement of a judicial proceeding; 2) the legal causation by the Defendant against the

Plaintiff; 3) its bona fide termination in favor of the Plaintiff; 4) the absence of probable cause

for the prosecution; 5) malice and 6) damages. Hickman v. Barclay’s International Realty, Inc.,

16 So.3d 154, 155 (Fla. 4th DCA 2009). The Plaintiff cannot prove any of the elements of

malicious prosecution.

The Plaintiff cannot support or sustain a cause of action for malicious prosecution for a

number of reasons. First, there was no commencement of judicial proceedings against the

Plaintiff. Second, and most importantly, there was no bona fide termination in favor of the

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Plaintiff. The Plaintiff was found to have violated his release conditions and returned to the

Federal Bureau of Prisons for 81 days. Third, probable cause existed as the Plaintiff admittedly

drove a vehicle without permission in violation of the terms of his halfway house/home

confinement set forth by the Federal Bureau of Prisons. The Plaintiff even concedes this fact.

Since the Plaintiff has not, and cannot establish the elements of malicious prosecution, especially

the key elements of the commencement of a judicial proceeding and termination of the

proceeding in favor of the Plaintiff, Defendants must be awarded summary judgment.

Although the Plaintiff claims he was the subject of malicious prosecution, he does not

allege facts that make it plausible on its face that he was subject to malicious prosecution. The

Plaintiff claims his incarceration constitutes malicious prosecution by alleging that this

incarceration was based on his infractions for driving and possessing an allegedly hazardous tool,

which he claims were previously resolved with the issuance of the disciplinary report. (Docket

101, paragraph 40). Malicious prosecution requires the existence of a judicial proceeding, yet the

Plaintiff has alleged no judicial proceeding and only alleged malicious prosecution as a result of

his incarceration at the Federal Detention Center. Without the allegation of a judicial

proceeding, the Plaintiff cannot allege any of the other elements of malicious prosecution, as

they all occur within the context of a judicial proceeding, namely one “legal[ly] caus[ed]” by the

defendant and directed towards the plaintiff without probable cause and with a “bona fide”

termination in the plaintiff’s favor. See Endacott, 910 So.2d at 920.

Even assuming that the disciplinary proceedings qualified as a judicial proceeding, there

is no allegation of an outcome in favor of the Plaintiff. For these reasons, the Plaintiff has failed

19



to allege a claim of malicious prosecution upon which relief can be granted and Defendants must

be awarded summary judgment.

9. The Punitive Claim must be dismissed.

Florida Statute 768.72(1) states, in pertinent part:

In any civil action, no claim for punitive damages shall be permitted unless there
is a reasonable showing by evidence in the record or proffered by the claimant
which would provide a reasonable basis for recovery of such damages. The
claimant may move to amend her or his complaint to assert a claim for punitive
damages as allowed by the rules of civil procedure. The rules of civil procedure
shall be liberally construed so as to allow the claimant discovery of evidence
which appears reasonably calculated to lead to admissible evidence on the issue of
punitive damages. No discovery of financial worth shall proceed until after the
pleading concerning punitive damages is permitted. (emphasis supplied)

The Amended Complaint fails to set forth the necessary evidentiary proffer for a cause of

action for punitive damages pursuant to Florida Statute 768.72. The allegations in the Amended

Complaint alone are not sufficient as the mere allegations do not constitute evidence.

Accordingly, Defendants are entitled to summary judgment on the damage claim.

10. Defendants are entitled to summary judgment on the issue of damages.

The Plaintiff has not provided any evidence of record to support any claim for damages,

regardless of the cause of action claimed. The real basis for the lawsuit essentially is that the

Plaintiff upset that he was sent to a correctional facility to complete his sentence as opposed to

remaining in home confinement. However, as is proven in Dismas prior filings, the Plaintiff did

violated the terms of his halfway house release when he drove, without the permission of

Dismas, and was found to be in possession of contraband, specifically a cell phone. The Plaintiff

also was send to the Federal Detention Center in Miami. (Statement of Undisputed Facts and

Affidavit of Ana Gispert, which is incorporated as though fully set forth herein. (Docket 83-1

20



and 83-2)) Further, if the Plaintiff did sustain damages, which is denied, he himself was the

cause of his damages.

Certainly, someone who served time in a correctional institution and was still serving his

sentence cannot complain that being sent to a detention center is a basis for damages. Once

again, the Defendants did not confine the Plaintiff. The Plaintiff was held by the Federal Bureau

of Prisons. Again, the Plaintiff forgets that he was still under Federal custody service at all

material times.

Plaintiff could not have sustained damages because he was “arrested or imprisoned” as he

was already a prisoner serving his prison sentence at the time of the incidents described in the

Amended Complaint. Certainly, someone already imprisoned and serving a prison sentence, as

in this case, whether it be at a prison or halfway house, cannot be falsely imprisoned or confined.

Any alleged restraint or detention of the Plaintiff therefore, was not unlawful, as he was already

under the custody and supervision of the Federal Prison System at the time of the events

described in the Complaint. As all actions described in the Complaint were under color of law

by Dismas, the U.S. Marshall and the Federal Bureau of Prisons, no unlawful activity occurred.

Therefore, Plaintiff cannot prove causation of damages by the Defendants or that he sustained

any damages. Accordingly, Defendants are entitled to summary judgment.

11. The Plaintiff has failed to appear for depositions, Defendants’ designated facts
should be taken as established for purposes of this Motion for Summary
Judgment as the Defendants’ claim and Plaintiff’s pleadings should be stricken.

Defendants filed a Motion to Strike Plaintiff’s Pleadings for failing to appear for

depositions. (Docket 78 and 89, which are incorporated as though fully set forth herein)

Plaintiff’s failure to appear has inhibited Defendants ability to defend the case and oppose

21



Plaintiff’s Motion for Summary Judgment. Plaintiff was set for his deposition on October 10,

2011. The deposition was cancelled at the request of the Plaintiff. The Plaintiff was reset for

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

Plaintiff failed to appear for his depositions on November 11 and December 5, 2011. Despite the

fact that the Plaintiff claims he has medical issues that prevent him from appearing for

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

Motion for Summary Judgment. (Docket 72-75) Further, the Plaintiff has been well enough to

file additional briefs, including the 18 page single spaced brief, with case citations, along with

various Motions, Objections to the Magistrates Report and an Amended Complaint. (Docket

Numbers 86, 90, 96 and 100)

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

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

party.” The Plaintiff’s failure to comply with the Rules of Civil Procedure merit striking his

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

established for purposes of the action, as the Defendants claim; prohibiting the disobedient party

from supporting or opposing designated claims or defenses (including his Motion for Summary

Judgment), prohibit the Plaintiff from introducing designated matters in evidence and dismissing

his complaint. Accordingly, the Defendants’ Motion for Summary Judgment must be granted.

22



CONCLUSION

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

granting all Defendants Final Summary Judgment and any further relief the Court deems just and

proper.

Respectfully submitted,

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

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

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 12th day of April, 2012, I electronically filed the
foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing
document is being served this day on all counsel of record or pro se parties identified on the
attached Service List in the manner specified, either via transmission of Notices of Electronic
Filing generated by CM/ECF or in some other authorized manner for those counsel or parties
who are authorized to receive electronically Notices of Electronic Filing.

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

24



SERVICE LIST

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

Traian Bujduveanu
Pro Se Plaintiff
5601 W. Broward Blvd.
Plantation, FL 33317

Tel: (954) 316-3828
Email: orionav@msn.com

25

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