Post on 30-Nov-2014
description
IN THE UNITED STATES DISTRICT COURT FORTHE SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 1 1-20120-C1V-SE1TZ/S1M ONT0N
1
FILED by D.C.
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STEVEN M. LARIMORECLERK .U .S DISI'. CT.S. D. of FLA. - MIAMI
TM IAN BUJDUVEANU,
l'lltirltiF,
VS.
DlsM As CHARITIE ,s m c ,. ANA GISPER LDEREK THOM AS and LASHAN DA Aoo s
Defendants.
/
Plaintifr: Obiection: to the Report and Recommendation Re; Defendants' M otion to
Dismiss
PlaintiFTraian Bujduveanu provides this response containing a list of objections to the
Honorable Judge Andrea M . Simonton's report and recommendations re: Defendants' Motion to
Dismiss, and asserts the following'.
Standard for Evaluatinu a m otion to Dism iss
I agree that Fed.R.CiV.P. 8(a)(2) requires that a pleading ''shall contain ... a short
and plain statement of the claim showing that the pleader is entitled to relief.'' This is
because ''ltlhe purpose of a modern complaint is 'to give opposing parties fair notice of
the basis of the claim against them so that they may respond to the complaint, and to
apprise the court of sum cient allegations to allow it to conclude, if the allegations are
proved, that the claimant has a legal right to relief' '' M onument Builders v. American
Cemetery Ass'n, 891 F.2d 1473, 1480 (10th Cir.1989), cert. denied, 1 10 S.Ct. 2168
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(1990) (quoting in part Perington W holesale, lnc. v. Btlrger King Cop., 631 F.2d 1369,
1371 (10th Cir.1979)); see also Conley v. Gibson, 355 U.S. 41, 47 (1957). Furthermore,
the judge goes on to make the case that, ttrecitals of the elements of a cause of action,
supported by mere conclusory statements, do not sum ce.'' This sGtement in addition to
others propounded by the Judge regarding the lack of material facts in the Plaintiffs
initial pleadings leads the Plaintiff to question whether Judge Simonton actually read the
entire record and all the documents submitted, rather than the just the Plaintiff's initial
filings. l acknowledge that my initial filings were not the most articulate, and in
compliance with every single rule of civil procedure, as this has been a learning process
for me. However, Defendant Anna Gispert's adm ission of not having provided BP-9
forms to M ovant, provides the Movant no means of documenting the abuses of process,
abuses of Constitutional rights and civil liberties on the part of the Defendants, and even
goes to the extent of providing the M ovant very little material documentation of his
experiences at the halfway house.However, it was their intention a1l along to deny the
Movant an opportunity to ever have a legitimate opportunity to defend himself both in
their nonexistent in-house judiciary proceedings, when he faced the Federal Bureau of
Prisons prior to being sent back to prison, and currently in his civil action against the
Defendants. I understand that the judicial process is hindered by the lack of documented
facts that prove the %sertions made by the plaintiffs, yet l ask that you not fall into the
1ap that the Defendants have set when they denied my ability to document my
grievances. Even if I was given the opportunity to m ake sure that m y initial pleadings
were in com pliance with the Federal Rules of Civil procedtlres rules 8a, the fact of the
matter, is that the Defendant's conspiracy to cover up their wrong doings by fabricating
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the record and denying me my constimtional right to address and document my
grievances, leaves me with very little means of providing material docllmentation of my
experiences at Dism ms House Charities. M y accusations should not be seen as itwildly
implausible'' because my initial complaint and pleadings were my flrst opportunity to
present my grievances, without a means of m aking reference to supporting
docllmenGtion, i.e. BP-9 forms, testimony by fellow inmates, and in addition the record
or any proceedings which took place. Essentially, I msk that the court does not view my
lack of fact as being Eçwildly implausible allegations in a pro se complaint that should be
considered untrue,'' however it should be seen as the Defendant's attempt of clouding the
court's judgment by preventing the Plaintiffthe ability to provide sumcient proof of his
claim s.
l1. Legal Analysis
a. The Fourth Amendment
The Defendants attempt to make the case that as a condition of the Plaintic s parole
that he consented to Rsearches of his person and vehicle''. However, the Plaintiff made it
clear to individuals at Dismas House that he was simply operating a fnmily vehicle, to
fulfill his required reporting requirem ents. Although the individuals in the halfway house
had, right to search his person upon entering the building, the Supreme Court has found
that, his family members have a protected interest against their property being subject to
searched and seizure. ''When the prosecution seeks to jlzstify a warrantless search by
proof of voluntaz.y consent, it is not limited to proof that consent was given by the
defendant, but may show that the permission to search was obtained from a third party
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who possessed common authority over or other suftkient relationship to the premises or
effects sought to be inspected.' United States v. Matlock, 415 U. S. 164, 171 (1974). 1
have acknowledged that, while a probationer's right of privacy may be justifiably
diminished during the period of probation (see lnman v. State, 124 Ga. App. 190 (2) (183
SE2d 413) (1971:, ''probationary status does not convert a pxobationer's family, relatives
and friends into 'second class' citizens. . . . These people are not stripped of their right of
privacy because they may be living with a probationer or (slhe may be living with them.''
State v. Fogarty, supra at 151. The Suprem e Court of M ontnnaa the only court in the
country to address the ram itk ations of the warrantless search condition of probation on
third parties living with a probationer, concluded that a search warrant based on probable
cause must be obtained before a probationer's residence or property may be searched ''so
that the legal interests of innocent third persons can be adequately protected. . .
Moreover, the judge makes the case that because Adams was not directly involved in the
search that she should not be held liable. The named defendants although may not have
been the ones that conducted the search and seizure of the vehicle and property, were in a
position to retum the property when finding out that they were not searching the
plaintiff s personal property, and thus didn't get the necessary perm ission to search and
seize his fnmily's property. ln this case respondeat superior takes effect in that Adams,
Thomas, and Gispert are directly responsible for the actions of their employees, and they
are should be even more liable for choosing to cover up their actions rather than
addressing these actions and acting within the confmes of the law.
b. First Amendment Retaliation Claim
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Judge Simonton attempts to rgue that the plaintiff fails to state a claim for retaliation
tmder the First Amendment. This seems similar to the Defendant's claim when they
noted that, uhe (the movant) fails to provide any proper evidence demonskating that he
%ked to attend religious services outside a five mile radius and that his request was
denied''. On 7/29/2010 the M ovant made a request to Lmshonda Adnms, in which he
requested, and was denied the ability to attend a Romanian Orthodox Chtlrch located on
SGte Road 7, in Pem broke Pines, to which M s. Adnm s replied that you are only allowed
to travel witltin five miles of the facility for religious services. ln fact, the Movant made,
2 other documented requests on 8/4/2010 and on 10/6/2010, al1 of which were denied by
M s. Adams. Al1 parties including the defendants are aware of the special exception to the
(5) mile rule which states that, Etan exception to the rule will only be made when yolzr
suted denomination of worship cannot be located witlzin five miles of the program''.
Cruel and Unusual Punishment tmder Eicht Amendment
The M agistrate errors in her assllmption that the Plaintitrs claim for cruel and unusual
punishment centers merely around the cov scation of his property, but goes m uch deeper
and in fact, would be seen as egregious in many third world countries whh less respect
for human rights and civil liberties. ln analyzing claims of Eighth Amendment
violations, the courts m ust look at discrete areas of basic human needs. As we have
recently held, '' '(A)n instimtion's obligation under the eighth amendment is at an end if it
furnishes sentenced prisoners with adequate food, clothing, shelter, snniGtion, medical
care, and personal safety.''' Wright v. Rushen, 642 F.2d 1 129, 1 132-33 (9th Cir.
lg8lltcitation omitted). 682 F.2d at 1246-47. When analyzing whether Dismms charities
violated their obligation to respect the Plaintiffs eight amendment rights they went
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beyond a confiscation of llis property, simply taunting, and submission to menial
activities.
Looking back at the som e of om previotts discussions of Negligence in previous
pleadings, it is clear that althoug,h the defendants attempt to paint themselves as caring
and compassionate, going as far to point out that they made the recommendation that the
M ovant not participate in any manual activities. However, Ana Gispert, is on record as
stating that she believes that Rdusting qualifies'', thus giving him a directive to pedbrm
manual labor. After days and days of harassment in M s. Gispert's absence, the M ovant
sent an email an email within this Dismas Chmities intemal system indicating, 1û. .. pain
and discomfort in my liver''. Yet again, in a letter dated 10/19/2010, the plaintiff- ote,
çûthis letter is to advise you that today, 10/19/2010, 10:50 A.M ., l was called to the front
desk and told that 1 should vacuum the room for him, in an attempt to intimidate me.'' He
goes on to state that, ûû. .. as a result of al1 actions against me, for the last week, by M r.
Thomas and his staff, my liver has swollen and l do experience pain''. lf forcing an
individual that Defendants had previously had made the case to the Btlreau of Prisons to
not participate in any manual labor, to dust and vacuum then is not a clear case of cruel
and unusual plnishment, and thus a violation of the duty to provide adequate medical
care and personal safety, there is no justice in the world. Even with the Defendants
admitting to the fact that they were aware of his medical conditions, the Defendants have
refused to address the Plaintifrs claim that he wms not provided meals that were diabetic
friendly, and was given disciplinary action for an incident where is wife was delivering
food as a result of him not receiving adequate nutritional from the halfway house,
something that they are required by law to do.This violates Department of Correction
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Policies in which, it is mandated that each institution's food service propam offers
nutritionally balanced, appetizing meals. Special Food and M eals, 28 C.F.R . j 547.20 and
Provam Statement 4700.05, Food Services M anual, provide that medical diets be
available to inmates who require such diets. The M ovant's reserch hms found however
that, a prison oftkial violates a prisoner's Eighth Amendment rights, and is deemed
negligent if he/she is deliberately indifferent to the prisoner's serious medical needs. See
Estelle v. Gnmb1e,429 U.S. 97, 103-04, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976).
d. Fifth Amendment Due Process Claim
Let's take a moment to address the M agiskates erroneous claim that Plaintiff fails to
set forth any facts demonstrating a false imprisonment or arrest by any specific
Defendant. As stated in M ovant's previous brief, it was the direct and indired actions of
the Defendant which lead to the confmement of the M ovant. Causation is, of comse, a
required element of a false imprisonment. See Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th
Cir. 1992). A probation/ parole oftker need not actually use force to detain a
probation/parolee illegally. Although false im prisonment usually follows false arrest,
false imprisonment may take place even after a valid arrest.
In all of the Reponses and bdefs from the Defendants, they claim that that the M ovant
was charged introducing contraband to the facility, when in fact he was charged with a
violation 108, which specifically, Etpossession, M anufacture, or inkoduction of a
hnzzrdous tool (Tools most likely to be used in an escape or escape attempt or to serve as
a weapon capable of doing of doing serious bodily harm to others; or those hazardous to
institutional security or personal safety'', to include that of a cell phone. First an.d
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forem ost, a cell phone unless used a detonation device cannot be seen as threat to
personal or instimtional safety. At best this alleged violation should have been charged
as a Code 305, Etpossession of anything not authorized for retention or receipt by the
inmate, not issued to through regular channels. Now, why would the Defendants'
increase the charges against the plaintiff such that they are more severe? The answer to
that question is simple. A violation 108 would have required the Plaintitrs removal from
the facility back to federal prison, whereas if he wœs charged appropriately, in-house
sanctions would have suftked. Going back to the case 1aw and arguments asserted in om
previous response, a police oftk er may be held to have Kinitiated'' a criminal moceeding
if he 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, tçan intelligent exercise of the ... (prosecutor's) discretion becomes
impossible,'' and a prosecution based on the false information is deemed ttprocmed by the
person giving the false information.'' However, a private citizen m ay be held liable for
false arrest under j 1983 if he or she caused the plaintiffto be arrested by virtue of false
statements he or she made to the police. Doby v. Decrescenzo, 1996 U .S. Dist. LEXIS
13175, *40 (E.D. Pa. Sept. 9, 1996). Thus, otlr claim is clear, the Defendants did not
place the Plaintiff in handcuffs, they did however provided false and misleading
sutements to the Bmeau of Prisons such that their ability to levy justice wms impaired
and the Plaintil was denied the privilege of the freedoms that come w1111 having
completed a prison sentence and being afforded community monitoring in a halfway
house facility.
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W hich leads us to address the Defendants' second contention, the Plaintiff wœs under
the misguided impression that he wms a tûfree man'' during his time at Dismas. At no
point did the Movant see himself as a free man during llis time at Dism%, and the
M ovant operating an automobile while tmder the mssumption that he was authorized to do
so does not justify the Defendants' claim. Let's not mix apples with oranges, contt.ary to
the Defendants' statements, the M ovant was not a federal prisoner confned to a federal
facility, and thus could not be rearrested, he was a federal inmate afforded the privilege
of dwelling in a halfway house and home confmement due to his health. As we made
dear in om previous brief, the courts on the other hand have seen being on parole or in
halfway house as being more thanjust a privilege. The Court has found proteded liberty
interests after an inmate is released from instimtional confinement. ln M orrissey v.
Brewer, 408 U.S. 471 (1972), the Court recognized a parolee's liberty interest in
remaining conditionally free on parole: ''(H1e can be gainfully employed and is free to be
with family and friends and to form the other enduring attachments of normal life. . . .
(Hlis condition is very different from that of confinement in a prison.'' ld. at 482. Relying
on Morrissey, the Court in Yotmg v. Harper, 520 U.S. 143 (1997), held that an inmate
enrolled in Oklahoma's pre-parole propnm also had a protected liberty interest entitling
him to due process before he could be removed from the program . There the pre-parolee
''was released from prison before the expimtion of his sentence. He kept his own
residence; he sought, obtained, and maintained ajob; and he lived a life generally free of
the incidents of imprisonment.'' By virtue of the Defendants' w11111 disregard for
M ovants right to this privilege, the plaintiff suffered dnmages and opportunity cost, for
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not being able to live not as free man, but as a man who has earned the privilege of being
free of correctional institutional confinem ent.
e. Double Jeooardv
Yet again, the Magistrate makes the claim that the PlaintiTs double jeopardy
claims should be dismissed with prejudice as the Plaintiff is lmable to state a cause of
action tmder this clause. Herjustification for this assertion is United States v. Mayes,
th cir 1998) in which the court examined a case in which prisoners158 F 3d 1215 (11 . ,
cause over $3 million in property dnmage during a prison riot and were subsequently
punished as part of the system as well as in criminal proceedings for the same offense.
However, The sanctions against the appellants in tltis case were imposed pursuant to 28
C.F.R. jj 541.10-541.20 (1993). These regulations authorize ''institution authorities to
impose discipline on those inmates whose behavior is not in compliance with Bureau of
Prisons rules.'' 28 C.F.R. j 541.10(a). Section 541.13 delineates the various types of
prohibited acts and groups them into categories based upon the seriousness of the
infraction. See 28 C.F.R. j 541.13, Table 3. The ''Disciplinary Severity Scale'' then
describes the types of authorized Ranctions that oftk ials have discretion to impose bmsed
upon the category into which the prohibited act falls. See 28 C.F.R. j 541.13, Tables 3-6.
The regulations also set forth detailed procedlzral guidelines that institutional staff must
follow when bringing disciplinary action against an inmate. See 28 C.F.R. jj 541.14-
541.19. lt is obvious that the judges makes the error using a case that involves direct
criminal conduct to justify her argument, in a case that does not involve dired criminal
conduct. Thus it is clear that she should find a case in which an inmate was punished for
committing a violation of bureau of prisons terms and rules and then is subsequently
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punished in a criminal proceeding, which is impossible, as such a case does not exist as
the idea of someone being sent back to prison for such a minor violation is ludicrous.
f. False Arrest and lmprisonment.
As sGted in Movant's previous brief, it was the direct and indirect actions of the
Defendant which lead to the confinement of the M ovant. Causation is, of course, a
required elem ent of a false imprisonm ent. See Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th
Cir. 1992). A probation/ parole officer need not acmally use force to detain a
probation/parolee illegally. Although false imprisonment usually follows false arrest,
false imprisonment may take place even after a valid arrest. ln all of tlze Reponses and
briefs from the Defendants, they claim that that the M ovant wms charged introducing
contraband to the facility, when in fact he was charged with a violation 108, which
specitkally, itpossession, Manufacture, or introduction of a hnzmrdous tool (Tools most
likely to be used in an escape or escape attempt or to serve as a weapon capable of doing
of doing serious bodily hnrm to others; or those hazardous to institutional sectlrity or
personal safety'', to include that of a cell phone. First and foremost, a cell phone unless
used a detonation device cannot be seen ms threat to personal or institutional safety. At
best this alleged violation should have been charged as a Code 305, Kpossession of
anything not authorized for retention or receipt by the inmate, not issued to through
regular channels. Now, why would the Defendants' incremse the charges against the
plaintiffsuch that they are more severe? The answer to that question is simple. A
violation 108 would have required the Plaintiff s removal from the facility back to federal
prison, whereas if he was chrged approm iately, in-house sanctions would have suftk ed.
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Going back to the cmse 1aw and argum ents asserted in our previous response, a police
oftker may be held to have ltinitiated'' a cdminal proceeding if he 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, tlan
intelligent exercise of the ... (prosecutor'sl discretion becomes impossible,'' and a
prosecution based on the false information is deemed Etprocured by the person giving the
false information.'' However, a private citizen may be held liable for false arrest under j
1983 if he or she caused the plaintiF to be arrested by virtue of false statements he or she
made to the police. Doby v. Decrescenzo, 1996 U.S. Dist. LEXIS 13175, *40 (E.D. Pa.
Sept. 9, 1996). Thus, our claim is clear, the Defendants did not place the Plaintiff in
handculs, they did however provided false and misleading statements to the Btlreau of
Prisons such that their ability to levyjustice was impaired and the Plaintiff was denied
the privilege of the freedoms that come with having completed a prison sentence and
being afforded commlmity monitoring in a halfway house facility.
The judge makes another fundnmental error when she likens, Etthe Plaintiffs residence at
Dismas Charities is considered the functional equivalent of incarceration, he cnnnot
establish a liberty interest in remaining there (p. 47)95. As we argued in olzr previous
briefs, the courts on the other hand have seen being on parole or in halfway house as
being more thanjust a privilege. The Court hms found protected liberty interests after an
inmate is relemsed from instimtional consnement. In M onissey v. Brewer, 408 U .S. 471
(1972), the Court recognized a parolee's liberty interest in remaining conditionally free on
parole: ''(H1e can be gainfully employed and is free to be with fnmily and friends and to
form the other enduring attachments of normal life. . . . (Hlis condition is very different
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from that of confinement in a prison.'' Id. at 482. Relying on M onissey, the Court in
Yotmg v. Harper, 520 U.S. 143 (1997), held that an inmate emolled in Oklahoma's pre-
parole progrnm also had a protected liberty interest entitling him to due process before he
could be removed from the propam. There the pre-parolee ''was released from prison
before the expiration of his sentence. He kept his own residence', he sought, obtained, and
maintained ajob; and he lived a life generally free of the incidents of imprisonment.'' By
virtue of the Defendants' willful disregard for M ovants right to tltis privilege, the plaintiff
suffered dnmages and opportunity cost, for not being able to live not as free man, but as a
man who has enrned the privilege of being free of correctional institutional confinement.
There is nothing legal or permissible about trumping up charges such that they cause an
outcome that suited the Defendants' inherent disgust and dislike for M ovant, in that there
are docllmented cmses of State Attorneys that have been convicted of criminal charges for
padding files with false charges and arrests.
g. Assault and Battery.
The M agisGte again argues that there is no way that the plaintiff can make a
claim for assault and battery as there is no statements of fact against a particular
defendant. l agree for the simple fact that, tlno such record of the assaults and battery that
took place as the Defendant's refused to provide the M ovant with and means of
doctlmenting said actions.'' Anna Gispert's admission of not having provided BP-9
forms to M ovant, provides the Movant no means of docllmenting the abuses of process,
abuses of Constitutional rights and civil liberties on the part of the Defendants, and even
goes to the extent of providing the M ovant very little material documentation of his
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experiences at the halfway house, which was the intention of the Defendants' a11 along,
essentially concealing and covering up their misconduct. As we argued previously the
courts have made it clear that, in Allen v. Mc Monis, No. 4:06-cv-810 SNL, 2007 W L
172564, at *2 (E.D. Mo. Jan. 19, 2007) çtholding allegation that prisoner could not get
grievance policy or forms barred sllmmary judgment for defendants'', and because of this
Court has an obligation to deny the Defendant's request for Dismissal, and the M ovant
should be awarded sllmmaryjudgment.
h. M alicious Prosecution
The fact of the matter is that CW II federal claims for malicious prosecution are
borrowed from the common law tort ... (whichl 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 f'rom the state civil suit in that it reqtlires that state officials acting
'under color of law' instimte the criminal proceedings against the plaintiff and thereby
deprive ltim of rights secured under the Constitution.'' Torres v. Superintendent of Police,
893 F.2d 404, 409 (1st Cir.1990).
The Plaintiffwms not guilty of introducing hazardous m aterials into a correctional
facility, as his cell phone was simply contraband, and not something that cotlld be used to
escape, or hnrm the welfare of those in the facility.Moreover, this cellphone was
contraband for individuals sGying at Dismas facilities, and were not contraband for an
individual on home confinement. Furthermore, the cell phone in his vehicle, might in the
case of drug possession constitute material possession, however given the fact that he was
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not attempting to introduce it into the facility on his person, and was in fact in the glove
compartment of his vehicle tmbeknownst to the Movant does not constitute actual or
material possession. The plaintiffwœs under the assumption that he was able to drive,
and his ignorance of the process does not take away f'rom his guilt, but him operating a
motor vehicle is not the reason that he was tlken back to prison, as that would have been
sometlzing addressed in-house through Dismas correctional procedures, but rather it was
the charge having introduced hazzudous material that constituted his denial of his parole.
Given the fact that the Defendants' were searching for any reason to have M ovant's
parole revoked, due to their personal hatred for Plaintiff and what he stood for, acting
under the color of the law, Defendants intentionally mis-indicted Plaintiftl thus
constituting the Movant's claim for malicious prosecution, and consequently depriving
him of rights secured lmder the Constitution, as he had served ltis debt to society in
prison confinement thus earning him the privilege of parole.
The Defendants want the M ovant to address all the individual elements of
malicious prosecution because they are aware their actions denied the M ovant the ability
to show how alleged conduct deprived him of liberty, by a distortion and com zption of
the processes of law, i.e., falsification of evidence, mischarging him with violations that
where much greater than his actions, and other egregious conduct nnmely the denial of
documents necessary to ensuring due process, resulting ultimately in the denial and
revocation of his parole, and it is for this reason that M ovant should be awarded summary
judgment, and the Defendant's motion to dismiss should be denied.
i. Abuse of Process
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Both the Defendants and the Magistrate make the claim that for Plaintiffto support a
cause of adion fo< abuse of process, tûthe Plaintiff must prove that the m octss was used
for an immediate purpose other thm1 which it was designed''. These processes and
procedures put in place by the Department of Coaections where not put into place to
deny the Plaintiffs rights and privileges, and the M ovant further asserts that these
procedures and processes were not put into place to cover up the Defendants' willful
misconduct and misdoings. The Defendnnts are basically msserting that because their
fabrication of documents, untruthful statements, and padded files achieves the purpose of
ptmishing the defendant, that it is justified. The fact of the matter is that an abuse of
process occurs when there, Ris a cause of action in tort atising from one party making a
malicious and deliberate misuse or perversion of regularly issued court process (civil or
criminal) notjustified by the underlying legal action'' tWolffv. McDormell, 418 U.S.
539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974:. This is what hms occun'ed in the case of
the Plaintiff, and the Movant is so stlre of assertion, that he challenges the Defendants to
produce documents that are in Sentry entered and sfnmped w1111 the proper signatures and
dates. The Plaintiffand the Defendants both know that that these forms do not exist as
they would have been documented ms evidence of compliance with due process and
lawful arrest by the Defendants. Again, a11 that has been provided are fabricated
docllments, and Plaintil hms in his previous response sGtement provided exhibits of
instnnces in which em ployees admonishing others to fabricate doczlments. lf the
M ovant's claims to this end are, tçunsubstantiated and self-serving'' as the Defendants
assert in their most recent response brief, then the Defendants should have no trouble
providing evidence of said documents being entered into the Sentry system that are
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compliance with guidelines from the National Archives and Records Administration and
the CCM , rather th% the documents they have provided that are wrought with the
Defendants' mislnkes and inaccuracies as a result of their hmste to cover up their
misdeeds.
Nealigence and Gross NegliRence
The M agistrate argues that, çtalthough the Plaintiffhas stated why he believes the
Defendants were negligent, he has not sGted how any of the Defendants breached a duty
they owed to him or that any of their breaches were the cause of his damages, nor has he
stated what damages resulted from any breach of their duty. However, the Plaintiff made
sure that a complete nmdown of his medical condition was provided to the defendants,
and it was for that reason that they recommended initial an home confinement, in light of
M s doctors recom mendation against any sort of manual labor. However, Ana Gispert,
has been placed on record as giving him directives go against doctors orders when she
stated that, that she believes that çtdusting qualifies'', thus giving him a directive to
perform manual labor. After days and days of harassment in M s. Gispert's absence, the
M ovant sent an email an email within this Dismms Charities intem al system indicating,
tt... pain and discomfort in my liver''. Yet again, in a letter dated 10/19/2010, the
plaintiffwrote, çkthis letter is to advise you that today, 10/19/2010, 10:50 A.M ., l was
called to the front desk and told that I shotlld vacullm the room for llim, in an attempt to
intimidate me.'' He goes on to state that, &E... as a result of al1 actions against me, for the
last week, by Mr. Thomas and his stafll my liver has swollen and l do experience pain''.
The M ovant went on to request a BP-9 form in the same letter, and did so 5 times within
17
Case 1:11-cv-20120-PAS Document 96 Entered on FLSD Docket 02/23/2012 Page 17 of 20
the correspondences within the Exhibit B, in addition to countless verbal request for these
forms. lt is clear that from just the internal correspondences alone, that the Defendants
breached their duty, and their denial of the BP-9 form was only an attempt to prevent any
further documentation of the violations of breach of duty and the obvious damages that
resulted from the harassment, forced manual labor, that exacerbated the M ovant's
medical condition, of which the Defendants aware of the damage being cause, as evident
in M rs. Gispert's prom ise to address the issue w1t.11 Mr. Thomas. Therefore, the
Defendants' argument that plaintiY s motion for s'Immaryjudgment is, Hdevoid of any
proper facts supporting any negligence, claims of forced manual labor, constantly
terrorized and intimidated, and permitted to accept meals f'rom his wife'', is yet another
diversion from the tnzth as proof of the negligent acts on the part of the defendant, and
the direct and proximate dnmages that resulted to the plaintiffare documented in Dismas
Charities own intemal messaging system . ln the Plaintiffs previous response to
Defendants' motion for summaryjudo ent he msserted that, a prison oocial violates a
prisoner's Eighth Amendment rights, and is deemed negligent if he/she is deliberately
indiflkrent to the prisoner's serious medical needs. See Estelle v. Gnmble, 429 U.S. 97,
103-04, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Deliberate indifference encompasses only
unnecessary and wanton iniiction of pain repugnant to the conscience of mankind. See
id.at 104-06, 97 S.Ct. 285. ''Subjective recklessness,'' as used in the criminal law, is the
appropriate test for deliberate indiFerence. To inctlr liability tmder j 1983, an individual
must be personally involved in the deprivation of a person's constitutional rights. See
Lozano v. Smith,718 F.2d 756, 768 (5th Cir.1983).
111. Conclusion
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Case 1:11-cv-20120-PAS Document 96 Entered on FLSD Docket 02/23/2012 Page 18 of 20
Therefore, for the reasons stated above, we ask that you review the entire record and
notjust the Plaintiff s initial pleadings, and deny the Defendant's request for
dismissal, and concurrently make a recommendation for Summary Judo ent in favor
of the Plaintiff. lf not then, the Plaintiffshould be given an order to file an nmended
complaint such that we are able to tix our violations with Federal Rules of Civil
Procedtlre rule 8 and 10.
Date: February 20th, 2012
Respectfully Submitted,
o zkzzyzzzozqza/TRM AN BUJDUVEANU, PRO SE LITIGANT
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Case 1:11-cv-20120-PAS Document 96 Entered on FLSD Docket 02/23/2012 Page 19 of 20
CERTIFICATE OF SERVICE
1 hereby certify that on or about FEBRUARY 20, 2012 a tnle and correct copy of the
foregoing document was served upon the following via the United States Postal
Service, First Class M ail:
Dismas Charities, Inc.,
141 N.W . 1 St Avenue
Dania, FL 33004-2835
Ana Gispert
Dism as Charities,lnc.
141 N.W . 1 St. Avenue
Dania, FL 33004-2835
Derek Thom as
Dismas Charities,lnc.
141 N.W . 1 St. Avenue
Dania, FL 33004-2835
Lashanda Adams
Dism as Charities,lnc.
141 N.W . 1 St. Avenue
Dania ,FL 33004-2835
David S. ChaietEsquire
Attorney for Defendants4000 Hollywood Boulevard
Suite 265-South
Hollyw ood, FL 33021
EXECUTED ON THIS 20 DAY OF FEBRUARY, 2012
z /z zzM pz y/gTRAIAN BUJDUVE NU, PR0 SE5601W . BROW ARD BLVD.,
PLANTATION, FL 33317
Case 1:11-cv-20120-PAS Document 96 Entered on FLSD Docket 02/23/2012 Page 20 of 20