- 1. Case 1:11-cv-20120-PAS Document 83 Entered on FLSD Docket
12/16/2011 Page 1 of 21IN THE UNITED STATES DISTRICT COURT FORTHE
SOUTHERN DISTRICT OF FLORIDACASE NO.:
11-20120-CIV-SEITZ/SIMONTONTRAIAN BUJDUVEANU, Plaintiff,vs.DISMAS
CHARITIES, INC., ANA GISPERT,DEREK THOMAS and ADAMS
LESHOTADefendants._________________________________________/DEFENDANTS
MOTION FOR SUMMARY JUDGMENT, INCORPORATED MEMORANDUM OF LAW IN
SUPPORT OF MOTION FOR SUMMARY JUDGMENT Pursuant to this Courts
Scheduling Order, Defendants Dismas Charities, Inc., AnaGispert,
Derek Thomas and Lashanda Adams, incorrectly identified as Adams
Leshota,(collectively Defendants) by and through their undersigned
counsel, pursuant to Federal Ruleof Civil Procedure 56 and Local
Rule 7.5, file their Motion for Summary Judgment,
IncorporatedMemorandum of Law in Support of their Motion for
Summary Judgment against TraianBujduveanu (Plaintiff) as follows:
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 Complaint contains
50paragraphs of unsupported allegations, four alleged federal
theories of recovery, and six allegedstate law theories of
recoveryall arising from his violation of a Bureau of Prisons
condition tonot drive an automobile or posses a cell phone, which
caused him to be transferred from Dismasback to a federal
prison.
2. Case 1:11-cv-20120-PAS Document 83 Entered on FLSD Docket
12/16/2011 Page 2 of 21CASE NO.: 11-20120-CIV-SEITZ/SIMONTON
SUMMARY OF ARGUMENT Plaintiff was transferred to Dismas Dania
facility as a transition point from federalprison system back to
into the community. Dismas, as a residential reentry center,
assistsinmates 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 Daniafacility to home
confinement subject to the terms and conditions of his initial
entry into thefacility as mandated by the Federal Bureau of
Prisons. These conditions included the Plaintiffs agreement not to
drive without the permission orconsent of Dismas and not to possess
contraband, including cell phones. When the Plaintiffdrove to
Dismas and was found to be in possession of a cell phone in the
car, Dismas reportedPlaintiffs violations to the Federal Bureau of
Prisons. The Federal Bureau of Prisons then hadthe United States
Marshalls Service return the Plaintiff to the Federal Detention
Center-Miami,where he subsequently served out the last 68 days of
his federal prison sentence after the Bureauof Prisons
independently found Plaintiff guilty of the violations. As an
inmate still under sentence, the Federal Bureau of Prisons, not the
Defendants,made all decisions concerning his custodial placement.
After his violations of rules while atDismas facility, the BOP
decided to remove him from the program and he was returned by
theBOP (via the U.S. Marshall service) to a federal prison to serve
out the remainder of hissentence. Plaintiff, therefore, fails to
state a cause of action and all Defendants must be awardedsummary
judgment. 2 3. Case 1:11-cv-20120-PAS Document 83 Entered on FLSD
Docket 12/16/2011 Page 3 of 21 CASE NO.:
11-20120-CIV-SEITZ/SIMONTON 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.ARGUMENT AND CITATION TO AUTHORITY 1. The Plaintiff
cannot maintain any cause of action against any Defendant. As a
condition of his halfway house release, the Plaintiff agreed to
comply with certainterms and conditions. The Plaintiff agreed he
would not operate a car without the permission ofDismas or the BOP.
The Plaintiff violated the terms and conditions of his halfway
house releasewhen he drove to Dismas on October 13, 2010, without
permission. Dismas was required toreport this violation of the
Plaintiffs release to the Federal Bureau of Prisons. The Federal
Bureau of Prisons, not the Defendants, made the decision to return
thePlaintiff to prison to serve out the remainder of his sentence.
Accordingly, the Defendants arenot liable for any alleged damages
sustained by the Plaintiff. As halfway house is a privilege
ofconfinement, not a right, the Plaintiff, who was still serving
his felony sentence, cannot maintaina cause of action for loss of
this privilege. Since the Plaintiff was still serving his
prisonsentence, he cannot maintain a cause of action for false
imprisonment as he was properlyimprisoned as part of his prison
sentence which had not expired. Accordingly, the Defendantsmust be
awarded summary judgment. The Plaintiff cannot maintain any Federal
or State law wrong or violation committedGispert, Adams, or
Leshota. Gispert is the Director of Dismas-Dania Beach. Gisperts
onlyalleged wrongdoing was failing to provide a BP-9 form. However,
this contradicts the3 4. Case 1:11-cv-20120-PAS Document 83 Entered
on FLSD Docket 12/16/2011 Page 4 of 21CASE NO.:
11-20120-CIV-SEITZ/SIMONTONattachments to the Complaint.The
attachments to the Complaint, specifically, Exhibit E,demonstrate
that the requests for BP-9 forms were made to Case Manager Price
and UnitCounselor of the Federal Bureau of Prisons, not Gispert or
Dismas. The Plaintiff has not allegedand cannot allege or prove any
factual allegations against Gispert to support a cause of action
forany alleged violations of the Plaintiffs First, Fourth, Fifth,
Eighth or Fourteenth Amendmentrights or any false
arrest/imprisonment, assault and battery, malicious prosecution,
abuse ofprocess or negligence. Accordingly, Gispert must be awarded
summary judgment. Adams allegedly claimed she knew nothing about
the search of the vehicle, is accused ofnot liking white people and
of failing to provide a BP-9 form. The fact that Adams did not
knowabout the search of a vehicle or the location of a cell phone
does not constitute tortious acts.With regard to her alleged hatred
of white people, the Plaintiff does not allege
discriminatoryconduct against Plaintiff by any Defendant. Even if
Lashanda Adams hates white people, whichis denied, her own beliefs
do not constitute a tortious act. The attachments to the
Complaint,specifically, Exhibit E, demonstrate that the requests
for BP-9 forms were made to Case ManagerPrice and Unit Counselor of
the Federal Bureau of Prisons, not Adams. The Plaintiff
cannotallege or prove any facts to support a cause of action for
any alleged violations of the PlaintiffsFirst, Fourth, Fifth,
Eighth or Fourteenth Amendment rights or any false
arrest/imprisonment,assault and battery, malicious prosecution,
abuse of process or negligence. Accordingly, Adamsis entitled to
summary judgment. The Plaintiff alleges that Thomas filled out a
report documenting the Plaintiffs violationsof his conditional
release from prison. In other words, Thomas was simply performing
his jobresponsibilities which does not constitute a tort. With
regard to Thomass alleged hatred of white 4 5. Case
1:11-cv-20120-PAS Document 83 Entered on FLSD Docket 12/16/2011
Page 5 of 21CASE NO.: 11-20120-CIV-SEITZ/SIMONTONpeople, the
Plaintiff does not allege discriminatory conduct by Thomas against
the Plaintiff.Even if Thomas hates white people, which is denied,
his own beliefs do not constitute a tortiousact. The attachments to
the Complaint, specifically, Exhibit E, demonstrate that the
requests forBP-9 forms were made to Case Manager Price and Unit
Counselor of the Federal Bureau ofPrisons, not Thomas. The
Plaintiff has no evidence to support his allegations against Thomas
tosupport a cause of action for any alleged violations of the
Plaintiffs First, Fourth, Fifth, Eighthor Fourteenth Amendment
rights or any false arrest/imprisonment, assault and battery,
maliciousprosecution, abuse of process or negligence. Accordingly,
Thomas must be awarded summaryjudgment. 2. The Plaintiff cannot
maintain any cause of action for any tortious conduct underFlorida
Common Law against the Defendants. a. False Arrest and Imprisonment
The tort of false imprisonment or false arrest is defined as the
unlawful restraint of personagainst his will, the gist of which
action is the unlawful detention of the plaintiff and
thedeprivation of his liberty. A plaintiff must show that the
detention was unreasonable andunwarranted under the circumstances.
In a false arrest action, the plaintiff must allegeimprisonment
contrary to his will and the unlawfulness of the detention. A
privilege exists as amatter of law to engage in reckless or even
outrageous conduct if there is sufficient evidence thatshows the
defendant did not more than assert legal rights in a permissible
way. Rivers v.Dillards Department Store, 698 So. 2d 1328, 1331
(Fla. 1st DCA 1997); Willingham v. the Cityof Orlando, 929 So. 2d
43, 47 (Fla. 5th DCA 2006). In the case at hand, the Plaintiff
cannotsupport all of the necessary allegations for either false
imprisonment or false arrest.5 6. Case 1:11-cv-20120-PAS Document
83 Entered on FLSD Docket 12/16/2011 Page 6 of 21 CASE NO.:
11-20120-CIV-SEITZ/SIMONTON First, the Plaintiff was not arrested.
Second, and more importantly, the Plaintiff could notbe arrested or
imprisoned as he was already a prisoner serving his prison sentence
at the time ofthe incidents described in the Complaint. Certainly,
someone already imprisoned and serving aprison sentence, as in this
case, whether it be at a prison or halfway house, cannot be
falselyimprisoned. Any alleged restraint or detention of the
Plaintiff therefore, was not unlawful, as hewas already under the
custody and supervision of the Federal Prison System at the time of
theevents described in the Complaint. As all actions described in
the Complaint were under color oflaw by Dismas, the U.S. Marshall
and the Federal Bureau of Prisons, no unlawful activityoccurred.
Third, the Defendants did not arrest or imprison the Plaintiff. The
Plaintiff cannot makethese allegations because none of the
Defendants had the authority to arrest and/or imprison him.As the
Complaint alleges in paragraph 38, the Plaintiff was arrested by
the U.S. Marshall Serviceand imprisoned by the Federal Bureau of
Prisons. (Affidavit of Ana Gispert, p. 33) In otherwords, the
Plaintiff was not, and could not, be arrested or imprisoned by any
Defendant becausethe Defendants do not have the authority or power
to arrest or imprison the Plaintiff. Even if any of the Defendants
could arrest or imprison the Plaintiff, which is denied, aprivilege
exists as a matter of law to engage in reckless or even outrageous
conduct if there issufficient evidence that shows that the
Defendant did no more than assert legal rights in apermissible way.
Rivers, 698 So. 2d at 1331; (Complaint, p. 16-26, 35-42, Exhibit C
to theComplaint and Affidavit of Ana Gispert, p. 21-33) Even if the
Plaintiff was violated (even ifviolated recklessly or outrageously
by any Defendant) and returned to complete his sentence at aFederal
Detention Center, the Defendants did nothing more than assert their
legal rights in a 6 7. Case 1:11-cv-20120-PAS Document 83 Entered
on FLSD Docket 12/16/2011 Page 7 of 21 CASE NO.:
11-20120-CIV-SEITZ/SIMONTONpermissible way, which would make their
conduct privileged as a matter of law. The Defendantswere obligated
to report the Plaintiffs violation of his conditions imposed by the
Federal Bureauof Prisons (not the Defendants) to the Federal Bureau
of Prisons. (Affidavit of Ana Gispert, p.32) For these reasons, the
Plaintiff has not and cannot set forth a cause of action against
anyDefendant in this case for false arrest or false imprisonment.
Accordingly, Defendants must beawarded summary judgment. b. Assault
and Battery An assault is an intentional and unlawful offer of
corporal injury to another by force ofexertion of force directed
toward another under such circumstances as to create a reasonable
fearof imminent peril and assaulted premised on an affirmative act.
Battery consists of theintentional infliction of harmful or
offensive contact on the person of another. Sullivan v.Atlantic
Federal, 454 So. 2d 52 (Fla. 4th DCA 1984); Paul v. Holbrook, 696
So. 2d 1311 (Fla. 5thDCA 1997). The Plaintiff was not assaulted or
battered by any Defendant. Any actions takenwere under color of law
so no unlawful offer of corporal injury occurred or could have
occurred.The complaint and record of this case are devoid of any
properly supported facts or allegations ofassault or battery by any
Defendant. Accordingly, Defendants are entitled to summary
judgmentas the Plaintiff has not provided any facts to support
allegations of assault and battery. c. Malicious Prosecution. To
maintain a cause of action for malicious prosecution, the Plaintiff
must prove 1) thecommencement of a judicial proceeding; 2) the
legal causation by the Defendant against thePlaintiff; 3) its bona
fide termination in favor of the Plaintiff; 4) the absence of
probable causefor the prosecution; 5) malice and 6) damages.
Hickman v. Barclays International Realty, Inc.,7 8. Case
1:11-cv-20120-PAS Document 83 Entered on FLSD Docket 12/16/2011
Page 8 of 21 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON16 So.3d 154, 155
(Fla. 4th DCA 2009). The Plaintiff cannot prove any of the elements
ofmalicious prosecution. The Plaintiff cannot support or sustain a
cause of action for malicious prosecution for anumber of reasons.
First, there was no commencement of judicial proceedings against
thePlaintiff by any Defendant. Second, and most importantly, there
was no bona fide termination infavor of the Plaintiff. The
Plaintiff was found to have violated his release conditions
andreturned to the Federal Bureau of Prisons for 81 days.
(Complaint, p. 46, Affidavit of AnaGispert, p. 33-34). Third,
probable cause existed as the Plaintiff admittedly drove a
vehiclewithout permission in violation of the terms of his halfway
house/home confinement set forth bythe Federal Bureau of Prisons.
(Exhibit C, to the Complaint, p. 15-21; Affidavit of Ana Gispert,p.
21-36) 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
theproceeding in favor of the Plaintiff, Defendants must be awarded
summary judgment. d. Abuse of process. To maintain a cause of
action for abuse of process, the Plaintiff must prove
threeelements: 1) that the Defendant made an illegal or improper
use of process; 2) that theDefendant had ulterior motives or
purposes in exercising such illegal, improper or perverted useof
process and 3) that, as a result of such action on the part of the
Defendant, the Plaintiffsuffered damage. S & I Investments v.
Payless Flea Market, 36 So. 3d 909, 917 (Fla. 4th DCA2010). The
usual case of abuse of process involves some form of extortion. Id.
The Plaintiffmust prove that the process was used for an immediate
purpose other than that for which it wasdesigned. Biondo v. Powers,
805 So. 2d 67, 69 (Fla. 4th DCA 2002).8 9. Case 1:11-cv-20120-PAS
Document 83 Entered on FLSD Docket 12/16/2011 Page 9 of 21 CASE
NO.: 11-20120-CIV-SEITZ/SIMONTON There is no evidence supporting
these claims against any of the defendants. For example,if any
Defendant used the Disciplinary Report System, the Report was used
for no other purposethan that for which it was designed.
(Complaint, Exhibit C, and p. 25, Affidavit of Ana Gispert,p.
21-36) Even if any Defendant used any process for spite or ulterior
purpose, this type ofalleged action does not and cannot constitute
abuse of process. Under Florida law, there is noabuse 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 Disciplinary Report was used for its proper
purpose-specifically todocument an alleged violation by someone
serving a sentence for a criminal act. Even if anyDefendant took
action against the Plaintiff for any personal reason, since the
alleged process wasused to accomplish the result for which is was
created, the motive of any Defendant is irrelevant.(Affidavit of
Ana Gispert, p. 21-36) Accordingly, the Plaintiff cannot maintain a
cause of actionfor abuse of process and Defendants are entitled to
final summary judgment. e. Negligence and Gross Negligence The
elements required to maintain a cause of action for negligence are
duty and a breachof 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
grossnegligence because the Plaintiff cannot show any duty owed by
the Defendants to the Plaintiffthat was breached. The Plaintiff has
also alleged that he is entitled to punitive damages.
Section768.72, Florida Statutes, prevents the maintenance of a
claim for punitive damages unless thereis a reasonable showing by
evidence in the record, or proffered by the claimant which would9
10. Case 1:11-cv-20120-PAS Document 83 Entered on FLSD Docket
12/16/2011 Page 10 of 21 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON
provide a reasonable basis for recovery of such damages. In Simeon,
Inc. v. Cox, 671 So. 2d 158, 160 (Fla. 1996), the Supreme Court
held that a Complaint which is signed by the plaintiff under oath
is insufficient to fulfill the procedural requirements of Section
768.72, Florida Statutes. Since the Plaintiff has not made the
necessary proffer of evidence in the record, Defendants are
entitled to summary judgment.Further, there was no negligence with
regards to the Plaintiffs medical condition. In fact, the Plaintiff
attached an Exhibit to his Motion for Summary Judgment, signed by
both Adams and Thomas recommending that the Plaintiff not work
because of his medical condition. The Plaintiff was permitted home
confinement, until he violated the Federal Bureau of Prisons
conditions of release by driving without permission. (Affidavit of
Ana Gispert, p. 6) The motion for summary judgment is also devoid
of any proper facts supporting negligence by any Defendant.
Accordingly, Defendants must be awarded summary judgment.3. The
Complaint fails to allege any tortious conduct or violations of
Federal Law or the Constitution.As was stated by this Court the
Court in its Order issued March 30, 2011 (Docket number 18) the
plaintiffs claim of an unlawful search and seizure of his vehicle
lacks merit. The defendants are private parties, and therefore,
their actions do not trigger the constitutional implications of the
Fourth Amendment. This would be true for all constitutional
amendments. Accordingly, since Dismas is not the Federal government
or a federal agency, Defendants alleged actions do not trigger any
constitutional implications.The Plaintiff cannot set forth a Bivens
action. Bivens actions allow for damages and remedies for
constitutional violations committed by federal agents. Bivens v.
Six Unknown Named Agents, 403 U.S. 388 (U.S. 1971). The Plaintiff
cannot maintain a cause of action under 10 11. Case
1:11-cv-20120-PAS Document 83 Entered on FLSD Docket 12/16/2011
Page 11 of 21 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON Federal Law
against Dismas or its employees because the Defendants are not
Federal Agents. The Plaintiff even admits that Dismas is a private
non-profit corporation known as a CCC Contractor and is not part of
the U.S. Federal Government. (Complaint, p. 36). Therefore, the
Defendants are entitled to summary judgment on all Federal Causes
of action. a. First Amendment1.The Plaintiff cannot prove that any
Defendant interfered with the Plaintiffs freedom of speech or
expression. At best, the Plaintiff alleges that the Plaintiff did
not receive a BP-9 form. However, the exhibits to the 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. The
Plaintiff was also not permitted to attend religious services
outside of a 5 mile radius of his confinement as per Federal Bureau
of Prison guidelines. A copy of the guidelines for religious
services is attached to as Exhibit 7 to the affidavit of Ana
Gispert, p. 20. Accordingly, the Plaintiff, who acknowledged
receiving the Rules and Guidelines, was not permitted to attend a
church more than five miles outside the radius of his confinement.
The Plaintiffs rights were not violated.Accordingly, Defendants are
entitled to summary judgment on any theory of recovery under the
First Amendment. b. Fourth AmendmentThe Plaintiff cannot prove any
violations of his Fourth Amendment right to wrongful search and
seizure. Bivens v. Six Unknown Named Agents, 403 U.S. 388 (U.S.
1971). As was stated by this Court the Court in its Order issued
March 30, 2011 (Docket number 18) the plaintiffs claim of an
unlawful search and seizure of his vehicle lacks merit. The
defendants are 11 12. Case 1:11-cv-20120-PAS Document 83 Entered on
FLSD Docket 12/16/2011 Page 12 of 21CASE NO.:
11-20120-CIV-SEITZ/SIMONTON private parties, and therefore, their
actions do not trigger the constitutional implications of the
Fourth Amendment.The Plaintiff, at all material times, was serving
out a criminal sentence under the Federal Bureau of Prisons. The
Plaintiff admittedly appeared at Dismas property operating a
vehicle without authority to drive a vehicle.(Complaint, Exhibit C
and p. 25). The Plaintiff acknowledged that he received the Rules
and Regulations which prohibited him from driving without
permission from Dismas or the BOP and prohibited him from
possessing an authorized cell phone. Plaintiff also consented to
the search of his vehicle as a condition of his release to Dismas.
(Affidavit of Ana Gispert, p. 7-31) Since the search of the vehicle
and confiscation of contraband (unauthorized cell phone) was
permissible and a condition of his release, no wrongful search and
seizure occurred. Since the Plaintiff did not own the vehicle or
cell phone, none of his property was searched or seized. Plaintiff
even signed a form acknowledging that contraband would be disposed
of by Dismas. (Exhibit 3, Affidavit of Ana Gispert, p. 14) Dismas
has returned all non-contraband items to the Plaintiff. However,
the Plaintiff is not entitled to the return of contraband.
(Affidavit of Ana Gispert, p. 29-31) Accordingly, no violations of
the Fourth Amendment occurred and the Defendants are entitled to
summary judgment.c. Fifth and Fourteenth AmendmentsThe 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 12 13. Case 1:11-cv-20120-PAS
Document 83 Entered on FLSD Docket 12/16/2011 Page 13 of 21 CASE
NO.: 11-20120-CIV-SEITZ/SIMONTON 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. Exhibit C, 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. The
Plaintiff also agreed to abide by the rules, regulations and
disciplinary procedures as condition of his halfway house release.
(Affidavit of Ana Gispert, p. 7-15 and Exhibits 2, 3 &
4)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
Plaintiffs United States Bureau of Prison Center Discipline
Committee Report is attached to the Affidavit of Ana Gispert, p.
34, Exhibit 11. Accordingly, due process was afforded.The Plaintiff
was not subjected to double jeopardy by the Defendants. As is
alleged in the Complaint, the Plaintiff was allegedly punished once
for his violations by the Federal Bureau of Prisons, not Dismas.
(Complaint, p. 25) The Plaintiff alleges he was punished a second
time for his violations by the Bureau of Prisons, not the
Defendants. (Complaint, p. 43-45) If the 13 14. Case
1:11-cv-20120-PAS Document 83 Entered on FLSD Docket 12/16/2011
Page 14 of 21CASE NO.: 11-20120-CIV-SEITZ/SIMONTON Plaintiff was
subjected to double jeopardy, which is denied, then his lawsuit
should be against the entity who punished him a second time, the
Federal Bureau of Prisons, not the Defendants.Plaintiff also
appears to be alleging that his Due Process Rights were violated
because he was not provided with BP-9 Form. (Complaint, p. 53)
However, the exhibits to the 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.d. Eighth AmendmentThe Plaintiff alleges
that his Eighth Amendment Rights were violated because he was
subjected to cruel and unusual punishment. The Plaintiff fails to
remember that he was serving a prison sentence and was still under
the control of the Federal Bureau of Prisons when the events
allegedly occurred. The Plaintiff fails to set forth any cruel or
unusual punishment. The Plaintiff was removed from Home Detention
and assigned three weeks of extra light duty and Dismas. The
Plaintiff also lost his weekend pass from Dismas for three weeks
and was not allowed visitation for three weeks. This cannot
constitute cruel or unusual punishment.The Plaintiff also was send
to the Federal Detention Center in Miami. This is not cruel or
unusual punishment. Certainly, someone who served time in a
correctional institution and was still serving his sentence cannot
complain that being sent to a detention center was cruel or
unusual. Once again, the Defendants did not confine the Plaintiff.
The Plaintiff was held by the Federal Bureau of Prisons. Further,
halfway house living is a privilege not a right. (Affidavit of Ana
Gispert, p. 7-14, Exhibits 2, 3 and 4) Plaintiff lost his privilege
when he failed to comply 14 15. Case 1:11-cv-20120-PAS Document 83
Entered on FLSD Docket 12/16/2011 Page 15 of 21 CASE NO.:
11-20120-CIV-SEITZ/SIMONTON with the terms and conditions he
himself agreed to with the Federal Bureau of Prisons regarding his
halfway house release. Accordingly, the Defendants are entitled to
final summary judgment.4. 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 Plaintiffs pleadings should be
stricken.Defendants filed a Motion to Strike Plaintiffs Pleadings
for failing to appear for depositions. (Docket 78, which is
incorporated as though fully set forth herein) Plaintiffs failure
to appear has inhibited Defendants ability to defend the case and
oppose Plaintiffs Motion for Summary Judgment.Pursuant to this
Courts scheduling order, Plaintiff, through notice dated August 24,
2011, was set for his deposition on October 10, 2011. The
deposition was cancelled at the request of the Plaintiff. The
Plaintiff claimed that he was not available on October 10, 2011,
and stated he would be available for deposition after October 25,
2011.As per the Plaintiffs request, the Plaintiff was reset for
deposition on November 11, 2011, through a notice dated August 29,
2011. On November 9, 2011 via email, the Plaintiff claimed he had a
medical issue that prevented him from appearing and promised to
provide a medical note. The Plaintiff again requested that his
deposition be reset for a later date. Plaintiff never provided any
proof of any medical condition that would prevent him from
appearing at a deposition. Accordingly, the deposition was not
cancelled. The Plaintiff failed to appear for his deposition on
November 9, 2011, and a certificate of non-appearance was issued.
(See Composite Exhibit 1 to this Motion)The Plaintiff was again
reset for deposition on December 5, 2011, through a notice dated
November 22, 2011. On Sunday December 4, 2011 at 10:24 pm, the day
before his deposition, 15 16. Case 1:11-cv-20120-PAS Document 83
Entered on FLSD Docket 12/16/2011 Page 16 of 21 CASE NO.:
11-20120-CIV-SEITZ/SIMONTON Plaintiff sent defendants counsel an
email stating he would not be appearing for his deposition because
the Plaintiff was allegedly sick. Further, the Plaintiff wanted to
the Court to answer all pending motions prior to his deposition. As
the Plaintiff filed a motion for summary judgment, failed (again)
to provide any proof that he was sick and with a trial date pending
next year, defendants counsel informed the Plaintiff that the
December 5, 2011, deposition would not be cancelled. A certificate
of non-appearance was issued.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, just eleven days before the November 11, 2011
deposition setting. The Plaintiff was also well enough to prepare
and file a Motion for Summary Judgment, Notice of Declaration,
Statement of Facts (Docket 72-75) and Notice of Hearing for Summary
Judgment for December 15, 2011, ten days after his deposition. Even
though the December 15, 2011, hearing notice (unilaterally set by
the Plaintiff himself) was stricken by the Court, the Plaintiff, by
his own hearing notice, would have been well enough to argue a
motion for summary judgment on December 15, 2011. (Docket 71)The
Plaintiff is clearly able to appear for deposition as is evidenced
by his attendance at mediation on November 1, 2011, preparation of
filing of a motion for summary judgment (Docket 72), filing of a
revised statement of facts on December 2, 2011 (three days before
his deposition)(Docket 77) and willingness to argue his motion on
December 15, 2011.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 disobedient16 17.
Case 1:11-cv-20120-PAS Document 83 Entered on FLSD Docket
12/16/2011 Page 17 of 21 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON
party. Buchanan v. Bowman, 820 F.2d 359, 361 (11th Cir.1987).
Specifically, the rule provides, in relevant part: (d) Partys
Failure to Attend Its Own Deposition, Serve Answers to
Interrogatories, or Respond to a Request for Inspection. (1) In
General. (A) Motion; Grounds for Sanctions. The court where the
action is pending may, on motion, order sanctions if: (i) a party
or a partys officer, director, or managing agent--or a person
designated under Rule 30(b)(6) or 31(a)(4)--fails, after being
served with proper notice, to appear for that persons deposition;
or (ii) a party, after being properly served with interrogatories
under Rule 33 or a request for inspection under Rule 34, fails to
serve its answers, objections, or written response. (B)
Certification. A motion for sanctions for failing to answer or
respond must include a certification that the movant has in good
faith conferred or attempted to confer with the party failing to
act in an effort to obtain the answer or response without court
action. (2) Unacceptable Excuse for Failing to Act. A failure
described in Rule 37(d)(1)(A) is not excused on the ground that the
discovery sought was objectionable, unless the party failing to act
has a pending motion for a protective order under Rule 26(c). (3)
Types of Sanctions. Sanctions may include any of the orders listed
in Rule 37(b)(2)(A)(i)-(vi). Instead of or in addition to these
sanctions, the court must require the party failing to act, the
attorney advising that party, or both to pay the reasonable
expenses, including attorneys fees, caused by the failure, unless
the failure was substantially justified or other circumstances make
an award of expenses unjust. The referenced subdivision further
provides that, where appropriate, a court is authorized to strike
pleadings, stay proceedings, dismiss the action or any part
thereof, or render a judgment by default against a disobedient
party. See Fed.R.Civ.P. 37(b)(2)(A)(iii)-(vi). Rule 37(b)(2)(A)
includes the following sanction against the non-complying party:
(2) Sanctions in the District Where the Action Is Pending.17 18.
Case 1:11-cv-20120-PAS Document 83 Entered on FLSD Docket
12/16/2011 Page 18 of 21CASE NO.: 11-20120-CIV-SEITZ/SIMONTON(A)
For Not Obeying a Discovery Order. If a party or a partys officer,
director, ormanaging agent--or a witness designated under Rule
30(b)(6) or 31(a)(4)--fails toobey an order to provide or permit
discovery, including an order under Rule 26(f), 35,or 37(a), the
court where the action is pending may issue further just orders.
Theymay include the following:(i) directing that the matters
embraced in the order or other designated facts be takenas
established for purposes of the action, as the prevailing party
claims;(ii) prohibiting the disobedient party from supporting or
opposing designated claimsor defenses, or from introducing
designated matters in evidence;(iii) striking pleadings in whole or
in part;(iv) staying further proceedings until the order is
obeyed;(v) dismissing the action or proceeding in whole or in
part;(vi) rendering a default judgment against the disobedient
party; or(vii) treating as contempt of court the failure to obey
any order except an order tosubmit to a physical or mental
examination.As is proven above, The Plaintiffs failure to appear
for depositions and comply with the Rules of Civil Procedure merit
striking his motion for summary judgment, directing that the
matters embraced in the order or other designated facts 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, from introducing designated matters
in evidence as well as his pleadings and dismissing his complaint.
Additionally, the Plaintiffs failure to appear for depositions and
comply with the Rules of Civil Procedure, merit striking his
pleadings and dismissing his complaint.18 19. Case
1:11-cv-20120-PAS Document 83 Entered on FLSD Docket 12/16/2011
Page 19 of 21 CASE NO.: 11-20120-CIV-SEITZ/SIMONTONCONCLUSION 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, ESQUIREFBN: 963798 19 20.
Case 1:11-cv-20120-PAS Document 83 Entered on FLSD Docket
12/16/2011 Page 20 of 21CASE NO.:
11-20120-CIV-SEITZ/SIMONTONCERTIFICATE OF SERVICEI HEREBY CERTIFY
that on the 16th day of December, 2011, 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, ESQUIREFlorida Bar No.
963798 20 21. Case 1:11-cv-20120-PAS Document 83 Entered on FLSD
Docket 12/16/2011 Page 21 of 21 CASE NO.:
11-20120-CIV-SEITZ/SIMONTONSERVICE LISTTraian Bujduveanu v. Dismas
Charities, Inc., et al. Case No..:
11-20120-CIV-SEITZ/SIMONTONUnited States District Court, Southern
District of Florida Traian Bujduveanu Pro Se Plaintiff 5601 W.
Broward Blvd. Plantation, FL 33317 Tel: (954) 316-3828 Email:
[email protected] 21