Document 94

The Plaintiff’s Response was originally filed as a Motion to Strike the Defendants’1

Motion to Dismiss (DE # 33), but it is being treated as a response to the Defendants’Motion to Dismiss (DE # 36).

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

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

TRAIAN BUJDUVEANU,

Plaintiff,

v.

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

Defendants.

/

REPORT AND RECOMMENDATION RE: DEFENDANTS’ MOTION TO DISMISS

Presently pending before the Court is the Defendants’ Motion to Dismiss (DE #

26). The Plaintiff filed a Response (DE # 33), to which he also added two Supplements

(DE ## 38, 41). The Defendants filed a Reply (DE # 39). This motion has been referred to1

the undersigned Magistrate Judge by the Honorable Patricia A. Seitz, United States

District Judge (DE # 43). The undersigned has thoroughly reviewed the record and, for

the reasons stated herein, recommends that the Defendants’ Motion to Dismiss (DE # 26)

be GRANTED.

I. BACKGROUND

The claims in this case stem from actions which occurred while Plaintiff Traian

Bujduveanu was completing the service of a sentence in the custody of Defendant

Dismas House Charities, Inc. (“Dismas House” or “Dismas”), and primarily concern the

actions taken by the staff members of Dismas House in seizing his property, and

Case 1:11-cv-20120-PAS Document 94 Entered on FLSD Docket 02/07/2012 Page 1 of 66

Plaintiff initially spelled this Defendant’s name incorrectly as “Ginspert.” This2

misspelling was corrected in the Amended Complaint, described infra, and therefore theCourt uses the correct spelling in this Report and Recommendation.

Defendant Lashanda Adams was originally referred to as “Adams Leshota” in3

the Plaintiff’s Amended Complaint (DE # 14); however, she has been referred toexclusively as Lashanda Adams in the Plaintiff’s Response (DE # 33), his supplement tohis Response (DE # 38), and the Defendants have also indicated that her correct name isLashanda Adams (DE ## 26 at 1; 39 at 1). The Court uses the correct spelling in thisReport and Recommendation.

2

disciplining him; and the Plaintiff’s ultimate removal from Dismas House and placement

into the custody of the Bureau of Prisons at the Federal Detention Center (“FDC”) in

Miami. The Plaintiff initially filed this case as a Motion for Return of Property against

Dismas Charities and Ana Gispert, claiming that a family car he had driven to Dismas2

Charities had been unlawfully searched, that a telephone and charger had been removed

from it, and that Dismas Charities had unlawfully seized this and other personal property

(DE # 1). As relief, he sought an order requiring Dismas Charities to return his property,

generate an account of all property seized, and provide any further relief the Court

deemed appropriate (DE # 1 at 3). Thereafter, before serving either defendant, the

Plaintiff filed an Amended Complaint, which adds defendants Derek Thomas and

Lashanda Adams (who is incorrectly identified in the Amended Complaint as Adams

Leshota), and seeks additional relief (DE # 14). The Amended Complaint, therefore, is3

the operative pleading in this case. The legal theories upon which the Plaintiff seeks

relief, as well as the specific relief sought, are described below.

II. THE AMENDED COMPLAINT

The Plaintiff contends that the Defendants deprived him of various rights

guaranteed by the United States Constitution; specifically, his First Amendment right to

freedom of expression; his Fourth Amendment right to be free from unlawful seizures of


This description is taken from the concluding paragraphs of his Amended4

Complaint. In the introductory paragraphs of the Complaint, the Plaintiff describes theaction in a similar, although not identical fashion: “This is an [sic] civil suit for IllegalSearch and Seizure, False Arrest, Unlawful Imprisonment, Violation of ConstitutionalRights, Unlawful Discrimination of Race, National Origin, Ethnic Groups and Ancestry,Reverse Discrimination under the color of state and federal law, DiscriminatoryHarassment, Intentional Infliction of Mental Distress, Deliberate Indifference, andNegligence by failing to ascertain the medical condition of the Movant [sic] complaints offeeling ill.” (DE # 14 at ¶ 1). His initial description of the jurisdictional basis for thisaction is stated as follows: “Movant brings this action pursuant to Bivens v. SixUnknown Named Agents . . . for violation of his rights to be free from Cruel and UnusualPunishment, for violations of his Constitutional Rights by persons acting under the colorof state and federal authority, and for violation of the Civil Rights Act of 1866, 42 U.S.C.1981, 1982, 1983, 2000.” (DE # 14 at ¶ 3).

3

his property and person; his Fifth and Fourteenth amendment rights to due process of

law; and, his Eighth Amendment right to be free from cruel and unusual punishment (DE

# 14 at 8). He also contends that the Defendants committed the following torts against

him, which are governed by state law: false arrest and imprisonment; assault and

battery; malicious prosecution; abuse of process; negligence; and gross negligence (DE

# 14 at 8). As relief, he seeks a declaration that the conduct of the staff of Dismas4

House was unconstitutional; an order requiring the return of his property and an

accounting; an award of compensatory and punitive damages in a total amount of $3.6

million for the alleged deprivations, and reasonable attorneys’ fees and expenses (DE #

14 at 9).

Each of these claims is listed in a conclusory fashion, without any factual

allegations specifically attributed to a particular cause of action. The facts alleged in the

Complaint are discussed below.

According to the Amended Complaint, Defendant Dismas Charities is a private

contractor that has contracted with the Bureau of Prisons to offer services as a

“Community Sanctions Center” (DE # 14 at ¶ 8). Dismas Charities is also identified as a


The undersigned has considered the allegations, made by the Plaintiff in his5

responses, which supplement the allegations in the Complaint, only for the purpose ofensuring a correct interpretation of the Complaint and for the purpose of determiningwhether the Plaintiff should be granted leave to file a Second Amended Complaint.

The Defendants contend that the Plaintiff attended a resident orientation and6

acknowledged that the program policies and procedures were explained to him (DE # 26at 2). The Defendants also contend that the Plaintiff had the opportunity to askquestions and receive clarification of the policies and procedures. Id. The Plaintiff’ssecond filing of his statement of facts in support of his motion for summary judgment

4

halfway house which primarily houses federal prisoners (DE # 14 at ¶¶ 9, 10). Defendant

Dismas Charities employs Ana Gispert as the Director, Defendant Derek Thomas as the

Assistant Director, and Lashonda Adams as a counselor (DE # 14 at ¶ 9). The

Defendants are sued in their individual and official capacities (DE # 14 at 11).

Implicit from various allegations in the Complaint and its attachments, and

explicitly stated in the Plaintiff’s response to the Motions to Dismiss, Plaintiff Traian

Bujduveanu was a federal prisoner who was released from prison by the Bureau of

Prisons on July 28, 2010, to complete the service of his federal prison sentence in a

halfway house. He was assigned to Dismas Charities. Thereafter, due to his medical5

condition, he was placed on home confinement, allowing him to serve the rest of his

sentence at home so long as he reported to Dismas every Wednesday (DE # 14 at ¶¶ 14,

15).

The Plaintiff alleges that upon his arrival at Dismas, he was given no handbook or

other information that covered the procedures he would need to follow to fulfill the

terms of his home confinement (DE # 14 at 3; DE # 33 at 3). The Plaintiff claims he only

received a “paper of acknowledgment” upon entering Dismas and that the only

handbook that existed at Dismas was a “Resident Handbook,” which he claims does not

discuss the issue of home confinement (DE # 33 at 3). The procedures that are relevant6


(DE # 77), which was stricken by this Court (DE # 82), contains documents that indicatethat the Plaintiff received notice of the conditions of his home confinement (See DE # 77at 13). The undersigned, however, has not considered these facts in the followinganalysis since in considering the Motion to Dismiss, with few exceptions noted below,the Court is limited to the facts alleged in the Complaint.

Neither brief explicitly states what statute, regulation, or book contains these7

provisions, but it appears that these provisions are a part of the resident handbooklisting Dismas rules and regulations (See generally DE # 14, 26, 33, 38), which thePlaintiff may or may not have received (See DE # 14 at 3).

5

to this case are the procedures that prohibited the Plaintiff from driving without the

approval of the Director of Dismas, Defendant Ana Gispert (DE # 14 at 2-3), and a

provision that prohibits Dismas residents from “possessing . . . a hazardous tool,”

defined as “tools most likely to be used in an escape or escape attempt or to serve as

weapons capable of doing serious bodily harm to others; or those hazardous to

institutional safety,” which lists a hack-saw blade as an example of a hazardous tool (DE

# 38 at 6).7

On Wednesday, October 13, 2010, the Plaintiff drove his family automobile to

Dismas in order to report as required by the terms of his home confinement (DE # 14 at

3; DE # 33 at 3). Unidentified Dismas staff members then searched the automobile and

discovered a cellular phone in the glove compartment that the Plaintiff claims belongs to

his family (DE # 14 at 3). The phone was confiscated as a “hazardous tool” because it

could be used to communicate with other people who are not confined or with other

halfway house residents (DE # 14 at 3). The Plaintiff alleges that other articles of his

property, including his watch, clothing, ATM cards, social security card, driver license,

medical insurance cards, medical supplies, wallet, cosmetics, and certain documents

were also confiscated (DE # 14 at 3); that some of these items were mailed to him on

January 26, 2011; and that he has not heard from the Defendants about the rest of these


The Defendants contend that the Plaintiff or his family have been allowed to pick8

up these other items but that he has refused to pick them up (DE # 26 at 3).

6

items (DE # 33 at 4). The Plaintiff alleges that, when he asked Defendant Lashanda8

Adams whether she knew about his phone, she said she did not know if anyone

searched his car, but that there was a “telephone” at Dismas (DE # 14 at ¶ 21). The

Plaintiff alleges that it “was obvious that she was trying to cover up for one of the staff

members who conducted the illegal search.” (DE # 14 at ¶ 21). The Plaintiff also alleges

that when he attempted to discuss the legal basis for the search of his automobile with

Assistant Director Defendant Derek Thomas, Defendant Thomas responded by

“escalat[ing] the conflict to a personal level” and attempted to resolve it in a “vindictive

way” (DE # 14 at ¶ 22). The Plaintiff claims that the seizure of his property was a

violation of his right to due process since he did not receive adequate notice, and

constituted an unconstitutional punishment (DE # 14 at ¶ 24).

According to the Complaint, on October 15, 2010, Defendant Thomas wrote an

incident report on the Plaintiff’s unauthorized use of an automobile and possession of a

hazardous tool, in which he concluded that (a) the Plaintiff’s confinement status should

be changed from home confinement to residing at Dismas for three weeks, (b) his

visitation privileges should be suspended for three weeks, and (c) his weekend passes

should be suspended for three weeks (DE # 14 at ¶ 25). The Plaintiff also claims that, to

humiliate the Plaintiff, Defendant Thomas forced the Plaintiff to vacuum rooms for him

while at Dismas, despite the Plaintiff’s medical condition. (DE # 14 at ¶ 35).

The Plaintiff claims generally that the staff at Dismas Charities was hostile and

abusive, with conduct that was physically threatening and humiliating; and that

prisoners were constantly intimidated by staff and threats were made to return them to


The precise date of the Plaintiff’s release from the Federal Detention Center is9

not clear. There is no dispute, however, that the Plaintiff subsequently was releasedfrom the Federal Detention Center; and, there is no contention that the length of hissentence was increased as a result of the actions which form the basis for thisComplaint. Rather, the Plaintiff contends that he was deprived of his rights due to thechange in his place of incarceration and the severity of the incarceration (the move fromhome confinement back to Dismas Charities and then to the Federal Detention Center).

7

prison every time prisoners attempted to raise a valid issue or concern (DE # 14 at ¶¶ 29-

31).

Plaintiff alleges that on October 19, 2010, he was taken from Dismas Charities to

the emergency room of a hospital due to serious liver pain and discomfort (DE # 14 at ¶

33).

Plaintiff alleges that at the request of Defendant Thomas, on October 20, 2010, the

Plaintiff was removed from Dismas by United States Marshals and incarcerated at the

Federal Detention center in Miami for 81 days (DE # 14 at ¶¶ 38, 46). Interpreting the9

Plaintiff’s Amended Complaint liberally, he claims that Defendant Thomas ordered the

Plaintiff’s incarceration without probable cause and that he subsequently attempted to

falsely charge him with possessing a hazardous tool to correct this mistake (DE # 14 at

¶¶ 39, 44). The Plaintiff also claims that his imprisonment was a result of the October

13, 2010 incident, for which he claims he was already punished as a result of the

disciplinary report written on October 15, 2010 (See DE # 14 at ¶¶ 42, 43). He asserts that

the Dismas Charities staff committed fraud by failing to disclose that this incident had

been resolved internally in the halfway house and that it had resulted in disciplinary

actions; and, that this constitutes malicious prosecution (DE # 14 at ¶¶ 42, 44).

The Plaintiff claims that he was incarcerated without being informed of the

charges levied against him, and that this caused him pain and suffering in violation of 42


Although the Plaintiff claims that the requests for a BP-9 form, which he10

contends are available at Dismas, were made on more than one occasion to DefendantsGispert, Thomas, and Adams, as well as to Federal Detention Center (FDC) staffmembers, and he refers to Exhibit E of the Complaint to support this allegation, theundersigned notes that the written requests for BP-9 forms contained in Exhibit E areaddressed to other people at the Federal Bureau of Prisons and the Federal DetentionCenter who are not named defendants in this action (See DE # 14 at 38-53). The absenceof the requests to the staff at Dismas Charities, of course, does not alter the analysis ofthe Motion to Dismiss since the Court is required to accept the factual allegations of theComplaint as true.

8

U.S.C. § 1983 (DE # 14 at ¶45).

The Plaintiff alleges that Defendants Thomas and Adams hate white people and

foreigners, and that the acts of the Defendants were “wanton, willful, unlawful,

malicious, and vicious, without regard for the system of justice in the United States (DE

# 14 at ¶ 48).

The Plaintiff also claims in general terms that the Dismas Charities staff caused

him irreparable harm by failing to ascertain his medical condition after he complained of

feeling ill (DE # 14 at ¶ 50). He alleges that he never filed a formal written administrative

remedy request because Defendants Gispert, Thomas and Adams did not respond to his

requests for the form BP-9, which is a form designed to request an administrative

remedy with the Federal Bureau of Prisons (DE # 14 at ¶¶ 51 -53). 10

Finally, the Plaintiff alleges that Case Manager Price, an employee at the Federal

Detention Center, admitted to him that his continued incarceration in the Federal

Detention Center was illegal as of November 30, 2010, because no charges were levied

against him, no sanctions were entered in the “Sentry System,” and that “the time for

entering any charges or sanctions expired a long time ago” (DE # 14 at 7). The Plaintiff

also claims that his situation is analogous to the situation of other residents at Dismas,

that these practices are institutionalized at Dismas, and that Dismas failed to take any


9

steps to remedy this kind of behavior despite having knowledge of its occurrence. Id.

III. DEFENDANTS’ MOTION TO DISMISS

Defendants Dismas Charities, Inc., Ana Gispert, Derek Thomas and Adams

Lashanda have filed somewhat a conclusory Motion to Dismiss seeking dismissal of this

action on various grounds (DE # 26). First, the Defendants assert that the Complaint

fails to allege sufficiently specific facts to state any cause of action, and assert that the

Complaint asserts legal conclusions without factual support. The Defendants further

contend that the Complaint fails to state any cause of action against Defendants Gispert,

Adams and Thomas because it does not delineate how the Defendants committed any of

the alleged violations in the Complaint.

As to the state law claims of false arrest and imprisonment, assault and battery,

malicious prosecution, abuse of process and negligence raised in the Complaint, the

Defendants contend that the Plaintiff has failed to allege the elements of each of those

claims sufficiently to withstand the Motion to Dismiss. Specifically, as to the claim of

false arrest and imprisonment, the Defendants contend that the Plaintiff has failed to set

forth any allegations that he was arrested, and further failed to explain how he could be

falsely imprisoned when he was already a prisoner serving his sentence at the time of

the incidents in the Complaint. In addition, the Defendants assert that the Plaintiff has

failed to allege that any of the Defendants arrested or imprisoned him. The Defendants

contend that there is a privilege as a matter of law “to engage in reckless or even

outrageous conduct if there is sufficient evidence that show that the Defendant did no

more than assert legal rights in a permissible way.” (DE # 26 at 9). The Defendants also

contend that there are no allegations to support the Plaintiff’s claim that he was

assaulted or battered. Further, the Defendant argues that the Plaintiff has failed to state


10

a claim for malicious prosecution because he has not alleged the commencement of

judicial proceedings, or that there was a termination of any proceedings in his favor.

Similarly, the Defendants contend that the Plaintiff has failed to state an abuse of

process cause of action because there can be no abuse of process where the process is

used to accomplish the result for which it was created, as it was in this case. Finally,

the Defendants contend that the Plaintiff has failed to state a negligence cause of action

because the Complaint fails to identify any duty owed by the Defendants to the Plaintiff

that was breached by the Defendants.

As to the Plaintiff’s federal claims under the First, Fourth, Fifth, Eighth and

Fourteenth Amendments, the Defendants contend that the Plaintiff has failed to set forth

any facts to demonstrate that any of his constitutional rights were violated. In particular,

the Defendants assert that the Plaintiff has not alleged that any Defendant interfered with

his freedom of speech or expression in violation of the First Amendment, or that any of

his property was impermissibly searched or seized in violation of the Fourth

Amendment. In addition, the Defendants contend that the Plaintiff’s due process rights

were not violated under the Fifth Amendment because the attachments to the Plaintiff’s

Complaint demonstrate that the Plaintiff was provided notice of the disciplinary report

issued by Dismas. Also, the Defendants contend that the Plaintiff failed to assert any

facts indicating that he was subjected to cruel or unusual punishment in violation of the

Eighth Amendment. In this regard, the Defendants note that the Plaintiff was confined

by the Federal Bureau Prisons at the Federal Detention Center in Miami and not by the

Defendants in this action.

Finally, the Defendants contend that the Plaintiff has failed to allege any causes of

action under federal law and contend that a Bivens action cannot be maintained against


11

the Defendants because they are not Federal Agents, and Dismas is a private non-profit

corporation. As such, the Defendants contend that the Plaintiff’s Amended Complaint

should be dismissed.

In Response to the Defendant’s Motion to Dismiss, the Plaintiff initially filed a

Motion to Strike wherein the Plaintiff merely recites many of the facts alleged in the

Amended Complaint and provides additional detail regarding the incidents which gave

rise to the Plaintiff’s claims against the Defendants (DE # 33). However, notably, the

Plaintiff argues that although his operation of a vehicle and possession of a cellular

telephone may have been “code” violations, those matters should have been resolved at

the halfway house and not at the federal prison (DE # 33 at 7). The Plaintiff also states

that the initial report written regarding a violation of the vehicle “code” did not include a

reference to a cellular telephone violation, but rather that violation was written in a

separate report one week after the date of the incident. The Plaintiff complains that the

second incident report was “illegal” because a report must be written within three

working days of the incident.

The Plaintiff also filed a Supplement in Response to the Defendant’s Motion to

Dismiss (DE # 38) wherein the Plaintiff argues that the cell phone violation that he was

issued was improper because the cell phone was never found in the possession of the

Plaintiff; and, further, that a telephone violation is a “low-moderate offense” which did

not merit the Plaintiff being returned to federal prison. In addition, the Plaintiff attached

to the Supplement two Incident Reports which recount the incident wherein the Plaintiff

was found to be in violation of the vehicle policy (DE # 38 at 8).

The Plaintiff also filed a Second Supplement in Response to the Defendant’s

Motion to Dismiss wherein the Plaintiff complains that Defendant Derek Thomas


12

modified the “Incident Report” form used by the Bureau of Prisons, a modification that

according to the Plaintiff may only be made by the Federal Bureau of Prisons. The

Plaintiff concludes this Supplemental Response by “demanding a third party, unbiased

investigation team, to investigate all 28 Dismas halfway houses, located in 18 states, for

illegal acts committed against the citizens of this country.” (DE # 41 at 3).

IV. THE STANDARD FOR EVALUATING A MOTION TO DISMISS

With respect to the Motion to Dismiss made pursuant to Fed. R. Civ. P. 12(b)(6) for

failure to state a claim, it is well-settled that in order to state a claim, Fed. R. Civ. P.

8(a)(2) requires only “a short and plain statement of the claim showing that the pleader

is entitled to relief.” While a court, at this stage of the litigation, must consider the

allegations contained in the plaintiff’s complaint as true, this rule “is inapplicable to

legal conclusions.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). In Iqbal and Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), the Supreme Court explained the

pleading requirements which must be met in a Complaint if it is to survive a motion to

dismiss. The Court emphasized that the complaint’s allegations must include “more

than an unadorned, the-defendant-unlawfully harmed-me accusation.” Iqbal at 1949.

Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Id. In practice, to survive a motion to dismiss,

“a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for

relief that is plausible on its face.’” Id. A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged. The plausibility standard requires more

than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads

facts that are merely consistent with a defendant’s liability, it stops short of the line


13

between possibility and plausibility of entitlement to relief. Determining whether a

complaint states a plausible claim for relief is a context specific undertaking that

requires the court to draw on its judicial experience and common sense. Id.

In considering a motion to dismiss, the facts alleged in the Complaint must be

viewed in the light most favorable to the Plaintiff. See FindWhat Investor Group v.

FindWhat.com, 658 F.3d 1282, 1296 (11th Cir. 2011) (reemphasizing that on motion to

dismiss, plaintiffs’ claims are accepted as true and reasonable inferences from these

claims are interpreted in the light most favorable to him). In addition, when considering

a 12(b)(6) motion to dismiss, the Court must accept as true all facts set forth in the

plaintiff’s complaint and must generally limit its consideration to the pleadings and

exhibits attached thereto. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007);

Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009).

Although a Complaint is required to set forth sufficient facts to state a claim for

relief, it is also important that it comply with the requirement that the claims be identified

with sufficient clarity to enable a defendant to frame a responsive pleading. Byrne v.

Nezhat, 261 F.3d 1075, 1129-30 (11th Cir. 2001). Thus, Fed. R. Civ. P. 8(a) requires that

the Complaint set forth “a short and plain statement of the claim.” In addition, Fed. R.

Civ. P. 10(b) requires that the title of the complaint name all the parties; that each claim

be stated in numbered paragraphs; and, that, if doing so would promote clarity, each

claim founded on a separate transaction or occurrence be stated in a separate count.

The Court has the inherent authority to require a plaintiff to replead the complaint in

accordance with these requirements. Cesnik v. Edgewood Baptist Church, 88 F.3d 902,

907 n.13 (11th Cir. 1996); Fikes v. City of Daphne, 79 F.3d 1079, 1083 n.6 (11th Cir. 1996).

When analyzing a pro se complaint, the court must construe the complaint


14

liberally and must hold it to less stringent standards than pleadings drafted by lawyers,

regardless of how “inartfully” they are pled. See Erickson v. Pardus, 551 U.S. 89, 94

(2007). This means that while “wildly implausible allegations” in a pro se complaint

should not be considered true, the Court should not punish a pro se litigant for

“linguistic imprecision.” See Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008).

However, a pro se plaintiff must still “comply with procedural rules governing the proper

form of pleadings.” Hopkins v. St. Lucie County School Bd., 399 Fed. Appx. 563, 565

(11th Cir. 2010) (quoting McNeil v. United States, 508 U.S. 106, 113 (1993)).

V. LEGAL ANALYSIS

A. Introduction

The Plaintiff claims that his First, Fourth, Fifth, and Eighth Amendment rights

were violated and seeks relief for these violations pursuant to Bivens v. Six Unknown

Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). A Bivens claim is

an implied right of action for damages arising directly under the Constitution for

damages against a federal officer who violates a citizen’s constitutional rights. Corr.

Serv. Corp. v. Malesko, 534 U.S. 61, 66 (2001). In order to raise a Bivens claim, a plaintiff

must show: 1) that the defendants in question were acting under color of federal law;

and, 2) that the plaintiff lacked any alternative remedies for the defendants’ conduct. See

generally Malesko, 534 U.S. at 70 (noting that the Supreme Court has only extended

liability under Bivens when individual federal officers violated the plaintiff’s

constitutional rights, and the plaintiff had no alternative remedies for the violation).

Additionally, a court must find that there are no special factors counseling hesitation

that should preclude Bivens liability. See Bush v. Lucas, 462 U.S. 367, 377 (1983)

(quoting Carlson v. Green, 446 U.S. 14, 18-19 (1980)).


15

Initially, for the reasons discussed below, the undersigned rejects the individual

Defendants’ claim that they are not subject to liability on the ground that they are private

actors. On the contrary, the undersigned concludes that their actions were taken under

color of law, and thus dismissal of all of the federal constitutional claims on this ground

is not appropriate.

With respect to Dismas Charities, Inc., however, 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). Therefore, all

constitutional claims asserted against Dismas should be dismissed with prejudice. On

the other hand, there remains a serious question regarding whether the employees of a

private prison are likewise exempt from liability under Bivens, despite the fact that they

act under color of federal law. The undersigned briefly analyzes this issue, but

recommends against dismissal on this basis at this time because the Defendants did not

expressly raise this issue in their Motion to Dismiss, and it is unclear whether this is

their contention.

With respect to the merits of the constitutional claims raised against the

individual Defendants, the undersigned recommends dismissal of the Complaint with

prejudice to the extent that the Plaintiff seeks relief under the Eighth Amendment based

upon alleged indifference to the need for medical treatment. The U.S. Supreme Court

has expressly refused to imply a cause of action under Bivens for this alleged

constitutional violation. Minneci v. Pollard, 131 S.Ct. 2449 (2011). With respect to the

remaining constitutional violations, the undersigned recommends dismissal for failure

to sufficiently allege facts to support a claim for relief.


16

Based upon the dismissal of the federal claims, the Court need not reach the

sufficiency of the state claims since, unless the Plaintiff can establish federal question

jurisdiction, this Court should decline to exercise supplemental jurisdiction over the

state law claims. In the alternative, the undersigned recommends dismissal of the state

claims.

Since the Plaintiff is proceeding pro se, however, he should be granted leave to

file a Second Amended Complaint if he can in good faith allege sufficient facts in

accordance with the guidelines set forth in the following analysis.

B. The Plaintiff Has Failed to Comply with Federal Rules of CivilProcedure 8 and 10

At the outset, the undersigned concludes that the Plaintiff’s Amended Complaint

utterly fails to conform to the pleading requirements set forth in Rules 8 and 10 of the

Federal Rules of Civil Procedure. Rule 8 requires a complaint to contain “a short and

plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

8(a)(2). This requirement is intended to give the defendant fair notice of the plaintiff’s

claim and the grounds upon which it rests. Davis v. Coca–Cola Bottling Co. Consol., 516

F.3d 955, 974 (11th Cir. 2008). Similarly, Rule 10(b) requires a party to “state its claims or

defenses in numbered paragraphs, each limited as far as practicable to a single set of

circumstances.” Fed. R. Civ. P. 10(b).

The Eleventh Circuit has explained that Rules 8 and 10 work together to require

the plaintiff to present his claims discretely and succinctly, so that an adversary can

discern what the plaintiff is claiming and frame a responsive pleading. Davis, 516 F.3d at

980 n.57. In addition, where claims are presented in a cogent fashion, the court can

determine which facts support which claims and whether the plaintiff has stated any


17

claims upon which relief can be granted, and, at trial, the court can determine that

evidence which is relevant and that which is not. Davis, 516 F.3d at 980 n.57.

In this case, the Plaintiff’s Amended Complaint fails to comply with Federal Rules

8 and 10 because it fails to set forth each cause of action against each Defendant in a

manner that the Defendants are able to discern what the Plaintiff is alleging against each

of the Defendants. Moreover, the Plaintiff has failed to state each claim in a separate

count with a single set of circumstances relevant to each of those counts. The Amended

Complaint is a classic example of the type of shotgun pleading which has been criticized

by the Eleventh Circuit. Byrne v. Nezhat, 261 F. 3d 1075, 1128-33 (11th Cir. 2001).

Therefore, the Plaintiff’s Amended Complaint must be dismissed. However, because the

Plaintiff is proceeding pro se, the Plaintiff should be granted leave to amend his

complaint to conform with the pleading requirements of the Federal Rules of Civil

Procedure.

C. It is Uncertain if the Bivens Claims Reach the Private Actors Underthe Facts of this Case

1. Private Defendants May Be Considered Federal Actors

The Court first turns its analysis of the Plaintiff’s federal claims to an examination

of whether the Plaintiff is able to pursue a Bivens action with respect to the Defendants;

a private corporation, Dismas Charities, operating a halfway house under contract with

the Bureau of Prisons, and three of its employees (See DE # 14 at 2). As stated above, a

Bivens claim is an implied right of action arising directly under the Constitution for

damages against a federal officer who violates a citizen’s constitutional rights. Corr.

Serv. Corp. v. Malesko, 534 U.S. 61, 66 (2001).

Thus, the first step in a Bivens analysis is for the Court to determine whether the


While the Plaintiff alleges that Dismas is “not a part of the U.S. Federal11

Government” (DE # 14 at 5), he also claims relief under Bivens and 42 U.S.C. § 1983 (DE# 14 at 1), and objects to the Defendants’ assertion that they are private parties (DE # 41at 1). Therefore, the undersigned assumes that the Plaintiff intends to seek to hold theDefendants liable pursuant to Bivens, and thus does not read the Plaintiff’s statementabout Dismas as a non-federal government entity as a concession that a Bivens actionshould not be applied to the private Defendants in this action.

As discussed infra, the Court in Malesko found that Bivens causes of action12

were intended to reach individual federal officers and not private prison entities, asopposed to individuals. As such, the Court declined to find that the plaintiff therein wasable to state a Bivens claim against the private prison in that case.

18

alleged violations were committed by a federal officer or otherwise arose under color of

federal law. If the actions complained of by a claimant did not arise under federal law,

there can be no Bivens cause of action. In the case at bar, the determination of whether

the Defendants’ actions occurred under federal law is complicated by the fact that

Dismas Charities is, in general terms, a private entity. 11

In Corr. Serv. Corp. v. Malesko, 534 U.S. 61, 66 (2001), the United States Supreme

Court examined whether a private prison that contracted with the Federal Bureau of

Prisons could be liable for constitutional claims raised pursuant to Bivens. Although, as

discussed more fully below, the Court determined that Bivens liability could not reach

the private prison in that case, the Court’s decision was not predicated on a

determination that the private entity was not a federal actor whose actions were taken

under federal law. Rather, the Court bypassed the inquiry of whether a private prison12

that housed Federal Bureau of Prison inmates did so under color of federal law, and

instead immediately analyzed whether a Bivens action should be extended under the

facts of that case. Implicit in that omission is the fact that the Supreme Court accepted,

without discussion, that the private prison was acting under color of federal law.

However, because the Court in Malesko did not expressly state that private prisons and


A “close nexus” exists when the action results (a) from “the [s]tate’s exercise13

of coercive power,” (b) when the state gives either significant overt or covertencouragement to the action, (c) when a private actor willfully participates in “jointactivity with the [s]tate or its agents,” (d) when the action is controlled by an “agency ofthe state,” (e) when the state delegated a public function to the private actor, (f) whenthe 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 nexussufficient to constitute state action. See American Mfrs. Mut. Ins. Co. v. Sullivan, 526

19

their employees are federal actors for purposes of Bivens claims, the undersigned finds

it necessary to analyze the facts of this case to determine whether Dismas and its

employees qualify as federal actors or as acting under federal law.

For purposes of this analysis, it is worth noting that the test for federal

government action is the same as the test for state action under the Fourteenth

Amendment and 42 U.S.C. § 1983. See Hartman v. Moore, 547 U.S. 250, 255 n.2 (2006)

(stating that “although limited in some respects, . . . Bivens . . . is the federal analog to . .

. 42 U.S.C. § 1983"). Therefore, it is appropriate to analyze the relevant case law

concerning the standard that must be met to show state action under 42 U.S.C. § 1983 to

determine whether the Defendants are federal actors acting under color of federal law.

Morast v. Lance, 807 F.2d 926, 931 (11th Cir. 1988) (“Because the concept of action under

color of federal law for purposes of a Bivens action is almost identical to the doctrine of

action under color of state law for purposes of a § 1983 action, we will apply the

concepts of state action to [plaintiff’s] Bivens claim.”)

Although purely private action cannot be the subject of a lawsuit pursuant to 42

U.S.C. § 1983, a private person’s actions can be under color of state law when there is “a

close [enough] nexus between the state and the challenged action [so] that seemingly

private behavior may be fairly treated as that of the state itself.” See Brentwood13


U.S. 40, 52 (1999).

Although in Alba v. Montford, 517 F.3d 1249, 1254 (11th Cir. 2008) the Eleventh14

Circuit declined to extend Bivens liability to employees of a private prison, the Court didnot reach the issue of whether those employees acted under color of federal law andinstead concluded that the plaintiff had adequate alternative state remedies thatprecluded a Bivens action with respect to an Eighth Amendment claim for cruel andunusual punishment based upon deliberate indifference to medical needs. Asdiscussed, infra, the United States Supreme Court has now adopted this determination. Minneci v. Pollard, 131 S.Ct. 2449 (2011).

20

Academy, 531 U.S. at 295; See generally Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172-

73 (1972) (purely private discrimination does not violate the 14th amendment).

Although it appears that the Eleventh Circuit has not directly addressed this

issue with respect to private prison employees, district courts within this circuit have14

examined this issue with varying results. In the Middle District of Florida, in a case

decided before Malesko, the Court concluded that where the state contracted with a

private corporation to run its prisons, the employees of that corporation could be held

liable under 42 U.S.C. § 1983. Blumel v. Mylander, 919 F.Supp. 423, 426-27 (M.D. Fla.

1996). In contrast, in Charlot v. Correction Corp. of America, Case No. 10-00080-CIV

2011 WL 1498875, at *1-*2 (S.D. Ga. Mar. 25, 2011), the Southern District of Georgia held

that employees of private correctional facilities housing federal inmates are not

government actors.

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


21

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.” 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). The concurring

opinion in Holly agreed that there was no implied cause of action under Bivens, but

reached a contrary conclusion regarding whether the individual employees were acting

under color of federal law; focusing on the fact that the Supreme Court in Malesko had

implicitly recognized that the private correctional corporation was acting under color of

federal law, and that in West v. Atkins, 487 U.S. 42 (1988), the Supreme Court had held

that private doctors rendering medical care to inmates under contract with the state

were acting under color of state law since their acts were attributable to the government.

434 F.3d at 297-302.

In contrast to Holly, the Ninth Circuit has held that employees of a private

corporation operating a prison in contract with the United States government acted

under color of federal law based on an analysis of the requirements for state action

under 42 U.S.C. § 1983. Pollard v. Geo Group, Inc., 607 F.3d 583, 588 (9th Cir. 2010),

amended, 629 F. 3d 843, rev’d on other grounds, 132 S.Ct. 617 (2012). In reaching this

result in Pollard, the Ninth Circuit, like the concurring judge in Holly, relied on West v.


Although the United States Supreme Court reversed the Ninth Circuit’s holding15

in Pollard with respect to its determination that a Bivens action could be brought for anEighth Amendment violation, the Supreme Court had no occasion to address the liabilityof individual employees because they had been dismissed on other grounds. It isinteresting to note, however, that in the federal government’s amicus brief in support ofMinneci, the government took the position that if the court reached the “color of federallaw” arguments, the government supported a determination that the actions were takenunder color of federal law. Brief of United States as Amicus Curiae supportingPetitioners. No. 10-1104, 2011 WL 3252793 at *13 n.6 (2011). The governmentemphasized that the criminal civil rights statute, 18 U.S.C. § 242, which proscribesdeprivation of civil rights under color of law, and which had been interpreted the sameas § 1983, has been successfully used to prosecute private prison employees. UnitedStates v. Wallace, 250 F. 3d 738 (5th Cir. 2001).

22

Atkins, 487 U.S. 42, 55-56 (1988). In Pollard, the Ninth Circuit rejected the analysis by the

Fourth Circuit in Holly, and further asserted that the fact that private prisons have been

utilized for many years does not mean that imprisonment is not a state function. 607 F.3d

at 591-92; Richardson, 521 U.S. at 413 (addressing 42 U.S.C. § 1983 to determine whether

qualified immunity applies, not to determine state action). Moreover, the Ninth Circuit

noted that most courts that have analyzed this issue have decided that private

imprisonment is a public function, meaning that there is a close nexus between the state

and employees of private prisons such that their actions can be fairly attributed to the

state. Id.; accord, Sarro v. Cornell Corrections, Inc., 248 F. Supp. 2d 52, 59-61 (D. R. I.15

2003).

In Rosborough v. Managment Training Corp., 350 F. 3d 459 (5th Cir. 2003), the

Fifth Circuit found that a § 1983 claim could be advanced against a state prison run by a

private prison-management group because that entity satisfied the “public functions”

test set forth by the Supreme Court which permits a finding that a private entity acts

under color of state law “when the entity performs function which is traditionally the

exclusive province of the state. The Court stated, “the Supreme Court has explained


The Defendants claim that this Court has already held that the Defendants are16

private actors, at least with respect to the Plaintiff’s Fourth Amendment claims (See DE #39 at 2). The Defendants base this claim on the Court’s Order entered by thepredecessor Magistrate Judge denying Plaintiff’s Motion to Appoint Counsel, whichstated that “the plaintiff’s claim of an unlawful search of his vehicle lacks merit. TheDefendants are private parties, and, therefore, their actions do not trigger the

23

that ‘when private individuals or groups are endowed by the state with powers or

functions governmental in nature, they become agencies or instrumentalities of the State

and subject to its constitutional limits.’” Id. at 460. Significantly, the Court in

Rosborough additionally noted that the Supreme Court held in Adickes v. S.H. Kress &

Co., 398 U.S. 144, 152 (1970), that to act under color of state law does not require the

accused to be an officer of the state. Id.

Similarly, in Americans United for Separation of Church and State v. Prison

Fellowship Ministries, 509 F. 3d 406, 422-23 (8th Cir. 2007), the Eighth Circuit found that

a prison run by a private entity was engaged in joint activity with the state to render the

private entity a state actor for purposes of § 1983 liability. In reaching its conclusion, the

Court emphasized that the state gave the private entity the “power to incarcerate, treat

and discipline inmates.” Id. at 423. In addition, the counselor employees of the private

entity also were authorized to issue disciplinary reports and to, in concert with the state

Department of Corrections, impose progressive discipline on the inmates.” Id.

Thus, although neither the Supreme Court nor the Eleventh Circuit has

determined whether employees of private prisons or penal facilities qualify as either

federal actors or as acting under federal law, after a through review of the above-cited

cases, for the following reasons the undersigned concludes that Dismas Charities, Inc.,

and its employees were acting under color of federal law under the facts alleged in this

action. 16


constitutional implications of the Fourth Amendment” (DE # 18 at 2). That statement,however, was not necessary to the decision and was not accompanied by any citation toauthority or analysis. Moreover, it was made in an interlocutory order and it addressedonly the allegations in the originally filed Motion for Return of Property against Dismasand Gispert, as its director. It is unclear whether any relief was sought in the originalMotion against Gispert in her individual capacity; and to the extent that Order statesthere is no Bivens claim permitted against Dismas under the Fourth Amendment, it isunquestionably correct. Therefore, the statement by the predecessor Magistrate Judge isnot binding on this case. Vintilla v. United States, 931 F.2d 1444, 1447 (11th Cir. 1991)(“law of the case” applies only where there has been a final judgment; a district courtmay reconsider prior rulings as long as the case remains within its jurisdiction);Technical Res. Serv., Inc. v. Dornier Med Sys., Inc., 134 F.3d 1458, 1465 n.9 (11th Cir.1998) (noting that when case is transferred to a different judge, the new judge mayreconsider rulings made by the predecessor judge).

24

First, the undersigned is particularly persuaded by the reasoning of those courts

that have found private prisons to be state actors in the § 1983 context. As stated above,

the same analysis for determining whether an entity is operating under color of state law

applies for determining whether actors are operating under color of federal law.

Second, there is no dispute that the individual Defendants in the case at bar worked in a

halfway house that contracted with the Federal Bureau of Prisons to house prisoners

convicted of federal crimes, while those prisoners were serving some portion of their

sentence related to those federal convictions. Thus, as stated by the Court in Sarro v.

Cornell Corrections, Inc., 248 F.Supp. 2d 52, 59-61 (D. R. I. 2003), “Clearly, the detention

of individuals charged with committing crimes is an exclusively governmental function.

Only the government has the authority to imprison a person and the exclusive

governmental nature of that function is not altered by the fact that, occasionally, the

government may contract to have criminal defendants incarcerated at privately-operated

institutions.”

Similarly, in this case, Dismas Charities, in overseeing prisoners who reside at its

halfway house, is engaged in what is typically a governmental function. In addition,


25

Dismas is acting in close nexus with the Federal Bureau of Prisons in incarcerating

prisoners for some portion of their sentences. Although the halfway house is not a

prison, the “powers” given to the employees at the Dismas halfway house are very

similar to those given to the employees in Americans United for Separation of Church

and State. Indeed, the individual Defendants are alleged to be able to incarcerate, treat

and discipline inmates. In addition, the undersigned also agrees with the Court in Sarro

in concluding that the power to detain the Plaintiff in this action was “derived solely and

exclusively from federal authority.” Sarro, 248 F. Supp. 2d at 61. As such, the halfway

house and its staff operated under color of federal law.

Thus, the first Bivens prong is satisfied, as the Defendants actions were taken

under federal law.

2. The Plaintiff Cannot Maintain a Bivens Claim Against DismasCharities

Although the undersigned has concluded that Dismas Charities, Inc. and its

employees were acting under color of federal law under the facts of this case, as

mentioned above, 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, as opposed to individuals, 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


26

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 that 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 that entity and those claims must be dismissed

against Dismas Charities, with prejudice. However, as discussed below, because it was

not addressed in the Malesko decision, the determination of whether the Plaintiff may

pursue a Bivens claim against the individual employees of Dismas, must be analyzed

separately.

3. The Plaintiff Cannot State an Eighth Amendment MedicalIndifference Claim Against the Individual Defendants

The Supreme Court has recently foreclosed any possibility of the Plaintiff

advancing claims against the individual Defendants pursuant to the Eighth Amendment

based upon any alleged indifference to his medical needs. In Minneci v. Pollard, 132 S.

Ct. 617 (2012), the Supreme Court made clear that unlike the constitutional claims raised

under the Fourth and Fifth Amendments, there is simply no Eighth Amendment Bivens

action available against private prison employees while acting under color of federal law.

Specifically, in Pollard, the Supreme Court stated “where...a federal prisoner seeks

damages from privately employed personnel working at a privately operated federal


27

prison, where the conduct allegedly amounts to a violation of the Eighth Amendment,

and where that conduct is of a kind that typically falls within the scope of traditional

state tort law...the prisoner must seek a remedy under state law. We cannot imply a

Bivens remedy in such a case.” Id.

In this case, as discussed above, the Plaintiff seeks to impose Bivens liability

against the employees of Dismas for medical indifference under the Eighth Amendment.

Based upon the allegations asserted in the Plaintiff’s Amended Complaint, for purposes

of this claim, the employees of Dismas are no different than the employees who worked

for a private prison in Pollard. As such, pursuant to Pollard, the Plaintiff is unable to

state an Eighth Amendment medical indifference claim against those Defendants.

Accordingly, those claims must be dismissed with prejudice.

4. Special Factors Regarding Extending Bivens in this Context

Although the Plaintiff is unable to state a Bivens cause of action against Dismas

Charities, Inc., at all, and is unable to state an Eighth Amendment Bivens medical

indifference claim against the individual Defendants, the Court must also consider

whether under the facts of this case, a Bivens cause of action is available to the Plaintiff

for other constitutional violations allegedly committed by the individual Defendants. In

this regard, the undersigned notes that even though it has already been determined that

the Defendants herein, including the individual employees, are federal actors for Bivens

purposes, this finding is not dispositive of the whether the Plaintiff is able to state a

Bivens claim against those employees in this action. In fact, as mentioned above,

Malesko expressly left open the question of whether a Bivens claim could lie against a

private individual acting under color of federal law. Malesko, 534 U.S. at 65.

In Minneci v. Pollard, 133 S.Ct. 617 (2012), the Supreme Court explained,


28

[T]he decision whether to recognize a Bivens remedy mayrequire two steps. In the first place, there is the questionwhether any alternative, existing process for protecting the[constitutionally recognized] interest amounts to aconvincing reason for the Judicial Branch to refrain fromproviding a new and freestanding remedy in damages.... Buteven in the absence of an alternative, a Bivens remedy is asubject of judgment: ‘the federal courts must make the kindof remedial determination that is appropriate for acommon-law tribunal, paying particular heed, however, toany special factors counseling hesitation before authorizinga new kind of federal litigation.

Id. (quoting Wilkie v. Robbins, 462 U.S. 367 (1983)). The second step, requiring a court

to pay particular heed to “any special factors counselling hesitation” is especially

significant in light of the fact that the Supreme Court has consistently refused to extend

Bivens liability to any “new context or category of defendants” since Carlson v. Green,

466 U.S. 14, which was decided in 1980. See Malesko, 534 U.S. at 68. Indeed, in Wilkie v.

Robbins, 551 U.S. 537 (2007), the Supreme Court, in cautioning against the extension of

Bivens liability to new constitutional claims, stated,

Bivens...held that the victim of a Fourth Amendment violationby federal officers had a claim for damages, and in the yearsfollowing we have recognized two more nonstatutorydamages remedies, the first for employment discrimination inviolation of the Due Process Clause, Davis v. Passman, 442U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), and the secondfor an Eighth Amendment violation by prison officials,Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15(1980).

But we have also held that any freestanding damages remedyfor a claimed constitutional violation has to represent ajudgment about the best way to implement a constitutionalguarantee; it is not an automatic entitlement no matter whatother means there may be to vindicate a protected interest,and in most instances we have found a Bivens remedyunjustified. We have accordingly held against applying theBivens model to claims of First Amendment violations byfederal employers, Bush v. Lucas, 462 U.S. 367, 103 S.Ct.2404, 76 L.Ed.2d 648 (1983), harm to military personnel


Although the court in Holly analyzed this situation with respect to its holding17

that employees of a private prison under contract with the Bureau of Prisoners were notfederal actors, it applies equally in analyzing whether Bivens should be applicable in thiscase.

29

through activity incident to service, United States v. Stanley,483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987); Chappellv. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586(1983), and wrongful denials of Social Security disabilitybenefits, Schweiker v. Chilicky, 487 U.S. 412, 108 S.Ct. 2460,101 L.Ed.2d 370 (1988). We have seen no case for extendingBivens to claims against federal agencies, FDIC v. Meyer, 510U.S. 471, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994), or againstprivate prisons, Correctional Services Corp. v. Malesko, 534U.S. 61, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001).

551 U.S. at 549-550. In Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001),

although decided before Wilke, the Supreme Court, in refusing to extend Bivens liability

to the private prison, noted that the decisions in the only two cases in which the

Supreme Court had extended Bivens liability involved violations of constitutional rights

by “individual federal officers” in situations where the plaintiff could avail himself of no

alternative remedy. 534 U.S. at 70.

In the case at bar, given the Supreme Court’s hesitation to extend Bivens to new

contexts, a valid argument could be made for refusing to extend Bivens to a new

category of defendants who arguably are not federal officers, but rather are private

employees of a prison that has contracted with the Bureau of Prisons. As the Fourth

Circuit stated in Holly, applying Bivens in this situation would create a system in which

employees of private prisons would be subject to far greater liability than their federal

counterparts, as they are not able to raise the defense of qualified immunity. See

Richardson, 521 U.S. at 412 (holding private prison guards do not have qualified

immunity); see 434 F.3d at 294. The Supreme Court shared a similar sentiment in17


See, e.g., Schweiker v. Chilicky, 487 U.S. 412 (1988); Bush v. Lucas, 462 U.S.18

367 (1983); Minneci v. Pollard, 132 S. Ct. 617 (2012).

See, e.g., FDIC v. Meyer, 510 U.S. 471 (1994); Correctional Services Corp. v.19

Malesko, 534 U.S. 61 (2001).

See, e.g., Chappell v. Wallace, 462 U.S. 296 (1983).20

30

Malesko, in which they said that the decision whether to “impose asymmetrical liability

costs on private prison facilities alone is a question for Congress, not us, to decide.” 534

U.S. at 71-72 (discussing liability costs in context of declining to extend Bivens to cover

a private correctional facility as federal prisoners could not sue the United States, only

the individual officer).

On the other hand, although it is manifest that the Supreme Court is reluctant, if

not entirely against extending Bivens into new areas, the undersigned notes that in its

opinions, the Supreme Court has only declined to extend Bivens claims under three

circumstances: 1) where there are adequate alternative state or federal remedies; 2)18

where the core principle of Bivens to deter constitutional violations by individual federal

officers will not be served; and 3) where other “special factors” are at issue, e.g., the19

unique nature of the military disciplinary system or significant involvement of Congress

in a particular area. 20

In this case, arguably none of those three situations is present. As to the

adequacy of alternative state remedies, with the exception of the Plaintiff having an

adequate remedy for any medical indifference claim as determined in Pollard, it is

doubtful that the state law remedies would be adequate. Although a state law remedy

and the potential Bivens remedy need not be “perfectly congruent”. Pollard, 132 S.Ct. at

—, (2012), the Court in Bivens rejected the argument that a state law trespass or


The undersigned recognizes, as discussed infra, that the Plaintiff could sue21

under a state law conversion theory for any claims arising from the seizure of hiscellular phone or other property. Although such a remedy would likely preclude aBivens action related to that claim, that remedy would only address a portion of thePlaintiff’s claims and leave him with no remedy for other alleged constitutionalviolations.

31

invasion of privacy action would be an adequate alternative state remedy for a Fourth

Amendment violation. Rather, the Court characterized those remedies as “inconsistent

or even hostile” to a remedy inferred from the Fourth Amendment. Bivens, 403 U.S. at

393-394. This conclusion was acknowledged by the Court in Malesko and served, in

part, as a basis for the Supreme Court to distinguish that case from Bivens. Id. at 73.

Further, in this case, it is unclear if the Plaintiff had an administrative remedy available

to him, because taking his allegations as true, his requests for a BP-9 form on which to

submit a grievance were refused. 21

In addition, to the extent that the Plaintiff is seeking to hold the employees of

Dismas Charities liable, the concerns regarding extending liability to a corporation or

agency, as opposed to individual actors, are not present. Finally, this case does not

involve the military or another area that is significantly controlled by Congress.

Thus, it is not entirely clear if the Supreme Court would refuse to extend Bivens

liability to the individual Defendants in this case, assuming that the Plaintiff were able to

sufficiently allege a constitutional violation. The undersigned concludes, however, that

the determination of whether a Bivens action should be extended to the employees of a

private halfway house under the facts of this case need not be resolved in this Report

and Recommendation as it is clear that in his Amended Complaint, the Plaintiff has failed

to allege sufficient facts to state a plausible claim for constitutional violations that would


However, as noted above, to the extent that the Plaintiff seeks to extend Bivens22

liability to Dismas Charities, Inc., such a cause of action has been foreclosed by theSupreme Court in its holding in Malesko, and thus any constitutional claims advancedagainst that entity should be dismissed with prejudice.

To the extent that the Plaintiff’s constitutional claims seek to hold Dismas23

Charities, Inc., liable, those claims fail because, as stated above, pursuant to Malesko,there is no cause of action against that entity, even if Bivens is extended in this context. As such, the undersigned does not address the sufficiency of the Plaintiff’sconstitutional claims against Dismas Charities, Inc.

32

give rise to Bivens liability.22

The Court therefore now turns its analysis to the sufficiency of the Plaintiff’s

constitutional claims advanced against the individual Defendants.

D. Even If Bivens Liability Is Extended in this Context, the Plaintiff hasFailed to State a Claim for Violations of His Constitutional Rights 23

1. The Fourth Amendment

The Fourth Amendment states that no person shall be subject to unreasonable

searches and seizures. U.S. Const. Amend. IV. In the prison context, prisoners and

probationers have Fourth Amendment rights but they are not the same as the Fourth

Amendment rights of free people. Bell v. Wolfish, 441 U.S. 520, 545 (1979); United States

v. Knights, 534 U.S. 112, 119 (2001); Padgett v. Donald, 401 F.3d 1273, 1278-79 (11th Cir.

2005). The standard of reasonableness that is the mainstay of the Fourth Amendment

applies in the prison or probation context and is analyzed by balancing the infringement

upon privacy against the need to “promote legitimate government interests.” See

Knights, 534 U.S. at 119. Using this balancing test, the Supreme Court has held that

prisoners have no Fourth Amendment right against searches of their cells or against

being required to undergo visual body-cavity searches. See Hudson v. Palmer, 468 U.S.

517, 526 (1984); see Bell, 441 U.S. at 558.


33

Further, in United States v. Knights, 534 U.S. 112, 119 (2001), the Supreme Court

determined that a person on probation did not have a Fourth Amendment right against a

warrantless search of his house based only on reasonable suspicion. Knights, 534 U.S.

at 121. In so doing, the Court stated, “Probation is ‘one point. . .on a continuum of

possible punishments ranging from solitary confinement in a maximum-security facility

to a few hours of mandatory community service’. . . .Inherent in the very nature of

probation is that probationers ‘do not enjoy the absolute liberty to which every citizen is

entitled.’” Id. at 119. The Court concluded that because one of the defendant’s

conditions on probation was that he submit to a search at any time, the probationer’s

“reasonable expectation of privacy” was significantly diminished. Id. Significantly, the

Court did not premise its analysis on the defendant’s consent to the search based upon

his agreement to comply with the conditions of probation, rather the Court balanced the

government’s interest in reducing recidivism and successfully reintegrating the

probationer back into the community against the probationer’s interest in privacy, and

thereby concluded that the Fourth Amendment did not require that “probable cause” be

established prior to the search of the probationer’s residence.

This holding was extended in Samson v. California, 547 U.S. 843 (2006) where the

Supreme Court examined whether a condition of release could so diminish or eliminate a

released prisoner's reasonable expectation of privacy that a suspicionless search by a

law enforcement officer would not offend the Fourth Amendment. The Court, in

answering that query in the affirmative, concluded that parolees “d[o] not have an

expectation of privacy that society would recognize as legitimate,” Id. at 851, and stated

“both parolees and probationers are on the continuum of state-imposed punishments,”

and parolees “have fewer expectations of privacy than probationers, because parole is


34

more akin to imprisonment than probation is to imprisonment.” Id. at 850. Notably,

again, the Court in Samson did not evaluate whether the defendant’s acceptance of

search conditions related to his parole constituted consent, rather the Court concluded

that given the totality of the circumstances, including the petitioner’s status as a

parolee, which the Court described as “an established variation on imprisonment,” and

the parolee’s agreement to the search conditions of parole, that the suspicionless

search was reasonable.

In United States v. Stewart, 213 Fed. Appx. 898, 899 (11th Cir. 2007), the Eleventh

Circuit Court of Appeals applied the holding in Samson to find that a warrantless search

of a parolee, who agreed to submit to a search at any time without a warrant, was

reasonable. Finally, in United States v. Brown, 2011 WL 344083 (N.D. Ga. Jan 3, 2011),

the Court examined the Supreme Court’s holdings in Knights and Samson, as well as the

Eleventh Circuit’s holding in Stewart, and concluded that because the defendant, in that

case, agreed, as a condition of his parole, to the warrantless search of his person,

papers, and place of residence, automobile, or any other property under his control as a

condition of his parole, he did not have an expectation of privacy. In addition, the Court

applied this same analysis to the search of the defendant’s vehicle, and stated that there

was no reason to distinguish the Samson decision based on the fact that the search of

the parolee extended to a search of his vehicle. Id. at *8 n.12.

In the case at bar, the Plaintiff, who was serving the remainder of his prison

sentence under the supervision of Dismas, claims that his Fourth Amendment right

against unreasonable searches and seizures was violated when Dismas staff searched

his car and when they seized the cellular phone contained in the glove compartment (DE


The Defendants claim that the Plaintiff’s Fourth Amendment rights were not24

violated because he did not own the vehicle or cell phone. This assertion, however, iscontradicted by the allegations of the Complaint and its attachments, as well as thePlaintiff’s response.

35

# 14 at 3). The Plaintiff also claims his Fourth Amendment rights were violated when24

Dismas staff seized other items that were his property, including his watch, clothing,

ATM cards, social security card, driver license, medical insurance cards, medical

supplies, wallet, cosmetics, and certain documents. Id. However, although it is unclear

what consent to search the Plaintiff may have signed upon entering the halfway house, if

any, pursuant to the holdings in Knights and Samson, the Plaintiff herein, as an inmate

completing his sentence at a halfway house, would have an even lower reasonable

expectation of privacy than the probationer and parolee in Knights and Samson, as his

status is closer to those incarcerated than to either a probationer or parolee. Thus, the

search of the Plaintiff’s car by the staff of Dismas Charities was not unreasonable under

the facts alleged in the Amended Complaint, and does not constitute a Fourth

Amendment violation. The Plaintiff attempts to avoid this conclusion by asserting that

he was on home confinement and was never issued a handbook for the Home

Confinement Program when the purported vehicle violation and search of his vehicle

occurred. However, the Plaintiff stops short of alleging that he did not know that he was

not permitted to drive and does not even allege that he did not know that he might be

subject to a search by the Dismas Charities staff. Therefore, the Plaintiff has not

suggested that he had a reasonable expectation of privacy in a search of his vehicle.

Further, although the Plaintiff alleges that he was on home confinement, he states that

he was released from the halfway house to home confinement due to several medical

conditions (DE # 14 at 2). Thus, despite his placement on Home Confinement, the


36

Plaintiff’s status was more akin to imprisonment than either parole or probation.

In addition, regardless of whether the Plaintiff’s privacy interest in his car or in

his seized property required reasonable suspicion or probable cause to search or seize,

the Plaintiff has not alleged that any of the Defendants are responsible for these actions.

The Plaintiff only alleges that unnamed Dismas staff members are responsible for these

actions (DE # 14 at 3). For example, relevant to the search, Defendants Adams and

Thomas are only mentioned in the Amended Complaint with respect to the Plaintiff’s

attempts to discuss the factual and legal basis for the search and seizure, not with

respect to whether they were responsible for the search and seizure, itself. Id.

Defendant Gispert is not mentioned with respect to the search and seizure (See DE # 14

at 2-9). Moreover, the Plaintiff states that Adams was not involved in the search or

seizure because he states his conversation with her led him to believe that she was

covering for one of the unnamed staff members who performed the search (DE # 14 at 3).

For these reasons, the Plaintiff’s claim that his Fourth Amendment rights were violated

should be dismissed for failing to state a claim against the named Defendants upon

which relief can be granted.

2. The Plaintiff Fails to State a First Amendment RetaliationClaim

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

of expression. 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, --- U.S. ---, 130 S.Ct. 1577, 1584 (2010). Although the Supreme

Court has acknowledged that a Bivens cause of action may be alleged against federal


37

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; and (3) that

there is a causal connection between the retaliatory actions and the adverse effect on

the speech. Douglas v. Yates, 535 F.3d 1316, 1321 (11th Cir. 2008). A prisoner's filing of

a grievance concerning his conditions of his imprisonment is protected speech under

the First Amendment. See id. (quoting Boxer X v. Harris, 437 F.3d 1107 (11th Cir. 2006).

In this case, the Plaintiff does not state how his freedom of expression was

violated. However, assuming that he seeks to predicate this claim on the allegation that

Dismas staff threatened and intimidated prisoners by threatening to have the United

States Marshals take them back to prison whenever they “attempt to raise a valid issue

or concern” (DE # 14 at 4), it appears that the Plaintiff seeks to assert that the

Defendants engaged in retaliation related to the prisoner’s free speech. The Plaintiff,

however, does not allege that any of the actions taken against him by the Defendants

were because of the exercise of this speech. Nor does he even allege that he

complained or raised an issue or concern prior to the incidents at issue. Rather, the

Plaintiff asserts that generally prisoners are intimidated when they complain. Courts

have rejected this sort of vague, non-specific allegation as being insufficient to state a

First Amendment retaliation claim. 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


38

failed to identify specific retaliation related to any grievance). In addition, the Plaintiff

does not deny that he committed a “vehicle” infraction, and, in fact, his complaint

focuses on his claim that he was punished twice for this infraction, not because he filed

or voiced a grievance (DE # 14 at 5). Courts have also rejected First Amendment

retaliation claims where the facts indicate that the prisoner committed another infraction

which was followed by the disciplinary proceeding, thereby breaking the causal

connection between the free speech and the retaliatory discipline. Davis v. U.S., 272

Fed. Appx. 863, 867-68 (11th Cir. 2008) (finding no retaliation where officer issued

disciplinary report for violation which claimant did not dispute he committed); Smith v.

Fla. Dept. of Corr. 375 Fed. Appx. 905 (11th Cir. 2010) (same).

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.

3. Cruel and Unusual Punishment Under the Eighth Amendment

As discussed above, in Pollard, the Supreme Court made clear that the Plaintiff is

unable to assert an Eighth Amendment medical indifference claim under Bivens against

the Defendants in this action. It is unclear, however, whether in the wake of Pollard, the

Plaintiff may pursue an Eighth Amendment claim for cruel and unusual punishment

based upon non-medical conditions of confinement pursuant to Bivens. That

notwithstanding, even if such a Bivens claim could be asserted in this case, for the

following reasons, the Plaintiff has failed to state a claim for cruel and unusual

punishment under the facts alleged in the Amended Complaint.

The Eighth Amendment prohibits cruel and unusual punishment and is a restraint

upon legislative power. U.S. Const. Amend. VIII. See Gregg v. Georgia, 428 U.S. 153, 174


39

(1976). The Eighth Amendment ban on cruel and unusual punishment encompasses

bans on excessive sanctions, requiring that a punishment be proportional to the offense

being punished. Atkins v. Virginia, 536 U.S. 304, 311 (2002). In deciding whether a

punishment is proportional to the crime, courts are guided by contemporary standards

of decency, which are analyzed by looking at objective factors, the most important of

which is “legislation passed by the country’s legislatures.” Atkins, 536 U.S. at 311-12

(quoting Penry v. Lynaugh, 492 U.S. 302, 331 (1989), overruled on other grounds by

Atkins v. Virginia, 536 U.S. 304 (2002)). Although legislative evidence is an important

factor in deciding the proportionality of a punishment to the crime, courts are also

allowed to use their own judgment to decide whether a punishment violates the Eighth

Amendment. See generally Atkins, 536 U.S. at 312 (discussing using court’s judgment to

see if legislature made the right conclusion in the death penalty context). Recently, in

United States v. Speight, 2011 WL 6311118 *4 (11th Cir. 2011), the Eleventh Circuit

reiterated, in the context of reviewing a sentence, “Outside the context of capital

punishment, ‘successful challenges to the proportionality of particular sentences should

be exceedingly rare’. . . ‘In non-capital cases, the Eighth Amendment encompasses, at

most, only a narrow proportionality principle,’. . . . We review the sentence imposed by

first determining whether the sentence imposed is “grossly disproportionate to the

offense committed.”

Although in this case, the Plaintiff does not seek to have his original sentence

reviewed on the basis of proportionality, he specifically alleges that his Eighth

Amendment rights were violated when his property was seized, based on the rationale

that this seizure was “unreasonably disproportionate” to his alleged minor offenses of

driving without authorization and possessing a cellular phone (DE # 14 at 4). Assuming


The Plaintiff also claimed his Fourteenth Amendment due process rights were25

violated, however, as previously mentioned, none of the Defendants are state actors, andthe Fourteenth Amendment applies only to state actors.

40

that the Plaintiff can even challenge the seizure of his property under the Eighth

Amendment in this context, any claim that he attempts to raise, does not even come

close to the exceedingly rare times that a punishment is considered “grossly

disproportionate” under the cruel and unusual punishment standards reiterated in

Speight. Accordingly, the Plaintiff has failed to allege facts sufficient to maintain any a

cause of action under the Eighth Amendment for cruel and unusual punishment.

Moreover, the Plaintiff has not alleged that any of the named Defendants had

anything to do with these actions. As discussed in the Fourth Amendment context

previously, the Plaintiff has only mentioned Defendant Adams in the context of these

actions by reference to a conversation in which he asked her about his cellular phone to

which she answered that she did not know about any search or seizure but that there

was a phone on the premises of Dismas (DE # 14 at 3). The Plaintiff has only mentioned

Defendant Thomas in the context of this seizure by stating that he attempted to discuss

the legal basis for the search with him, but that Defendant Thomas “escalated the

conflict to a personal level” and “attempted to resolve [the discussion] in a vindictive

way.” Id. The Plaintiff did not mention Defendant Gispert at all with respect to this claim

(See DE # 14 at 2-9). Accordingly, the Plaintiff has failed to assert any actions taken by

the individual Defendants that would support an Eighth Amendment cruel and unusual

claim and therefore the claim should be dismissed.

4. The Plaintiff Fails to State a Fifth Amendment Due ProcessClaim

a. The Transfer to FDC Miami25


41

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. amend. 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)).

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 without any charges or judgments being

entered and, when he was allegedly denied the opportunity to file a formal written

administrative remedy request, as he was never provided with a BP-9 form or its

equivalent (DE # 14 at 6). 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 Defendants, in equally conclusory terms, state that the Plaintiff has failed to

allege sufficient facts to support his due process claim. The undersigned agrees for the

reasons previously stated that the Amended Complaint is deficient under Rules 8 and 10.

However, it is at least conceivably possible that the Plaintiff can state a claim for relief

arising from a liberty interest he held regarding his placement at Dismas House. In this

regard, however, notwithstanding the fact that the Defendants failed to discuss or

analyze the potential for the Plaintiff to assert a liberty interest, based upon the analysis


The same analysis governs the determination of due process claims whether26

they are brought under the Fourteenth Amendment or the Fifth Amendment. Rodriquez-Mora v. Baker, 792 F. 2d 1524, 1526-27 (11th Cir. 1986) (holding that due processprotections due state prisoners under the Fourth Amendment apply with equal force tofederal prisoners pursuant to the Fifth Amendment).

42

set forth below, it is extremely unlikely that the Plaintiff can allege a sufficient liberty

interest in remaining at the halfway house to support a due process claim.

As noted in Bass v. Perrin, 170 F.3d 1312 (11th Cir. 1999), albeit in the context of a

Fourteenth Amendment claim, a determination of whether a person was deprived of

liberty is more difficult in the context of a prison, because prisoners have already been

deprived of their liberty in the ordinary sense of the term. Nonetheless, the Supreme26

Court has made clear that a prisoner can be deprived of his liberty such that due

process is required if: 1) there is a change in a prisoner's conditions of confinement that

is so severe that it essentially exceeds the sentence imposed by the court. See Sandin v.

Conner, 515 U.S. 472, 484 (1995); Vitek v. Jones, 445 U.S. 480, 492-93 (1980) (holding that

a prisoner is entitled to due process prior to being transferred to a mental hospital); or,

2) when the state has consistently given a certain benefit to prisoners, via statute or

administrative policy, and the deprivation of that benefit “imposes atypical and

significant hardship on the inmate in relation to the ordinary incidents of prison life.”

Sandin, 515 U.S. at 484; see, e.g., Wolff v. McDonnell, 418 U.S. 539, 558 (1974) (prisoners

may not be deprived of statutory “good-time credits” without due process); cf. Dudley v.

Stewart, 724 F.2d 1493, 1497-98 (11th Cir. 1984) (explaining how the state creates liberty

interests).

At the outset, the undersigned notes that when analyzing due process in the

prison context, courts must remember that although “prisoners do not shed all


43

constitutional rights at the prison gate,” prisoners have less constitutional rights as a

result of the needs of the prison system. Sandin v. Conner, 515 U.S. 472, 485 (1995).

Furthermore, “discipline by prison officials in response to a wide range of prison

misconduct falls within the expected parameters of the sentence imposed by a court of

law.” Id.

Thus, 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 protected interest in rehabilitative programs,

Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976), or an “equal protection” interest in

eligibility 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).

On the other hand, the Court has found protected liberty interests after an inmate

is released from institutional confinement. In Morrissey v. Brewer, 408 U.S. 471 (1972),

the Court recognized a parolee's liberty interest in remaining conditionally free on parole

by stating “[the parolee] can be gainfully employed and is free to be with family and

friends and to form the other enduring attachments of normal life” and, “[the parolee’s]

condition is very different from that of confinement in a prison.” Id. at 482.

Similarly, in Young v. Harper, 520 U.S. 143 (1997), relying on Morrissey, the Court

held that an inmate enrolled in Oklahoma's pre-parole program also had a protected

liberty interest entitling him to due process before he could be removed from the


44

program. There the pre-parolee “was released from prison before the expiration of his

sentence. He kept his own residence; he sought, obtained, and maintained a job; and he

lived a life generally free of the incidents of imprisonment.” Id. at 148. Thus, although

the pre-parolee's freedoms were limited, e.g, he was not permitted to use alcohol, to

incur other than educational debt, or to travel outside the county without permission,

those limitations were akin to those of the parolee in Morrissey, and thus, did not place

such liberty beyond procedural protection. Id.

As previously stated, the 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 Whitehorn v. Harrelson, 758 F. 2d 1416 (11th Cir. 1985), the Eleventh Circuit

considered whether a prisoner could establish a constitutional liberty interest in his

continued participation in a work release program. The Court concluded that although

there was no inherent constitutional liberty interest in the initial placement of a prisoner

in a work release program, that there might have been a protected liberty interest in the

revocation of the work release status based upon the state action related to that

program. Therefore, the reviewing court remanded the case to the district court to

examine whether the statutes or regulations related to the state work release program

placed a restriction on the prison officials’ discretion to revoke a prisoner’s work release

status without due process. Id. at 1422. Notably, however, the Whitehorn decision was


45

issued prior to the Supreme Court’s pronouncement in Sandin, set forth above, that a

benefit created by the state for a prisoner only rises to a liberty interest when the

deprivation of that benefit “imposes atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life.”

Although the Sandin ruling dealt with a prisoner’s right to due process prior to a

prisoner being placed in administrative segregation in a prison as a form of discipline,

courts have applied the Sandin standard in determining whether inmates have a liberty

interest in remaining in a work release program which required the inmate to reside in a

halfway house. In Asquith v. Dep’t of Corr., 186 F. 3d 407 (3rd Cir. 1999), for example,

the Third Circuit examined whether the due process clause of the Constitution protected

a prisoner’s liberty interest in the halfway house program. The Court determined that it

did not because the inmate had not been released from “institutional confinement.”

Specifically, in reaching this conclusion, the Court distinguished the confinement of the

work release prisoner from the pre-parolee prisoner in Young v. Harper, by noting that,

among other things, the work release prisoner lived in a strictly monitored halfway

house, was subject to curfew, had to sign in and out, was subject to searches, and had

to stand count several times a day. Id. at 411. The Court further noted that the work

release prisoner was required to take public transportation, was issued weekend passes

and had to check-in by telephone.

The Court then considered whether the State work release program created a

liberty interest in the continued participation in that program. In doing so, the Court

stated, “Even if Asquith's life in prison was ‘fundamentally different’ from life at the

halfway house, Sandin does not permit us to compare the prisoner's own life before and

after the alleged deprivation. Rather, we must compare the prisoner's liberties after the


46

alleged deprivation with the normal incidents of prison life.” Sandin, 515 U.S. at 485-862.

The Court therefore concluded 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 as required by Sandin. 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, Asquith's 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.”

In this case, it appears from the Complaint that the Plaintiff’s confinement was

more like the work release prisoner in Asquith than the pre-parolee prisoner in Young.

First, 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.” Similarly, although the conditions at the halfway


47

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.”

In sum, it is clear that if the Plaintiff’s residence at Dismas Charities is considered

the functional equivalent of incarceration, he cannot establish a liberty interest in

remaining there. However, if the terms of the Plaintiff’s residence at Dismas Charities is

more like the terms of the “pre-parole” described by the Court in Young v. Harper, he

might have such a liberty interest. The undersigned finds that although it is unlikely that

the Plaintiff will be able to establish such an interest, it is premature for the Court to

make this determination. Moreover, the Defendants did not claim that the Plaintiff did

not have a liberty interest in remaining at Dismas, and did not cite any law in support of

their brief argument.

Ultimately, however, this determination does not govern whether the Amended

Complaint states a claim for relief. 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 Center, the Plaintiff only mentions Defendant

Thomas with regards to this claim, and only mentions him to say that he requested the

Plaintiff’s incarceration. All his other claims of a due process violation on this issue

concern actions taken by the U.S. Marshals and the Federal Detention Center (See DE #

14 at 5-6), who are not named defendants in this case. 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


48

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

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

responsible for this is Carlos Rodriquez-CCM, and he does not answer he calls or

respond to. . . messages. “ (DE # 57 at ¶ 57). Carlos Rodriquez is not named as a

Defendant in this action. Thus, the Plaintiff has not stated a claim for a due process

violation against the named Defendants once he arrived at FDC.

Similarly, the Plaintiff states that he was incarcerated without being informed of

the charges against him. 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 (DE # 14 at 5-6), implying he was incarcerated as a result

of his violation of regulations which prohibited him from driving (See DE # 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

this claim should be dismissed for failure to state a claim.

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).


The Plaintiff also claims his due process rights were violated when Defendant27

Thomas escalated a conflict over a conversation about the search of the Plaintiff’s car“to a personal level” and “attempted to resolve [the discussion] in a vindictive way.” (DE# 14 at 3-4). A claim that a person is rude, independent of any other factors, does notstate a claim for a denial of due process. See e.g., Edwards v. Gilbert, 867 F. 2d 1271,1274 n.1 (1989) (stating that claimant must allege more than being subjected to “verbaltaunts. . . however distressing” to state a constitutional violation.)

49

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.

b. The Plaintiff’s Due Process Rights Were Not Violatedby the Defendants When His Property WasConfiscated

The Plaintiff claims his due process rights were violated when Dismas staff

members “deprived [him] of his personal property without due process of law” because

this constitutes a punishment that is disproportionate to the offense of driving without

authorization, and that his due process rights were further violated because he “did not

receive adequate notice of forfeiture or any documents of confiscation that should

normally [be] include[d] [in] an inventory of the confiscated items” (DE # 14 at 3-4).27

The Plaintiff has also claimed that he was denied due process because his

property was seized without notice or any of the required documentation that must

normally accompany such a seizure (DE # 14 at 3-4). However, the Plaintiff has not

alleged that any of the named Defendants were responsible for any seizure or for his

alleged lack of notice, as he only states that this violation occurred at the hands of

unnamed Dismas staff members (DE # 14 at 3). As previously mentioned, the Plaintiff

only mentions Defendants Adams and Thomas with respect to this seizure in the context


50

of discussions that the Plaintiff had with them after the seizure took place (DE # 14 at 3).

Thus, the Plaintiff has failed to state a claim for a due process violation against the

individual Defendants based upon this allegation.

E. Title 42 U.S.C. §§ 1981 and 1982

The Plaintiff also claims relief for racial discrimination under 42 U.S.C. § 1981,

which states that all people will have “full and equal benefit of all laws and proceedings

for the security of persons and property,” as well as under 42 U.S.C. § 1982, which gives

all citizens the right to hold and convey personal property, among other things. Title 42

U.S.C. §§ 1981 and 1982, which were originally part of the Civil Rights Act of 1866, can

be violated by private actors because they were passed pursuant to the Thirteenth

Amendment. See generally Jones v. Alfred H. Mayer Co., 392 U.S. 409, 437-39 (1968)

(discussing Civil Rights Act of 1866 applying to private action in a case under 42 U.S.C. §

1982). However, 42 U.S.C. § 1981 applies only to causes of action brought under color of

state law, and not to claims brought for actions taken under color of federal law. 42

U.S.C. § 1981(c); Lee v. Hughes, 145 F.3d 1272, 1277 & n.5 (11th Cir. 1998).

To state a claim under 42 U.S.C. § 1981, Plaintiff must plead facts demonstrating:

(1) that the Plaintiff was discriminated against because of his race; (2) there was an

intent to discriminate on the basis of race by the Defendant; and (3) that the

discrimination concerned one or more of the activities enumerated in the statute (i.e.,

make and enforce contracts, sue and be sued, give evidence, etc.). See e.g., Mian v.

Donaldson, Lufkin & Jenrette Securities Corp., 7 F.3d 1085, 1087 (2nd Cir. 1993) (citing

Baker v. McDonald's Corp., 686 F.Supp. 1474, 1481 (S.D. Fla. 1987), aff'd 865 F.2d 1272

(11th Cir. 1988). See also, McDonald v. Santa Fe Trail Tranps. Co., 425 U.S. 273 (1976)

(holding that civil rights actions based on racial discrimination extend to white persons


51

as well as nonwhites). Moreover, “Section 1981 offers relief when racial discrimination

blocks the creation of a contractual relationship, as well as when racial discrimination

impairs an existing contractual relationship ....” Domino's Pizza, Inc. v. McDonald, 546

U.S. 470, 476 (2006).

In Jackson v. Beidenharn, 429 Fed. Appx. 369 (5th Cir. 2011), the Fifth Circuit

affirmed the dismissal of a halfway house prisoner’s claims brought against the halfway

house employees pursuant to §§ 1981 and 1982. In so doing, the Court concluded that

the prisoner’s claims failed to provide sufficient evidence that he lost any contract

interest and thus his § 1981 claim failed. Id. at *1.

Similarly, in this case, the Plaintiff has not alleged facts related to his inability to

contract due to the actions allegedly taken by the Defendants. Nor does it appear that

the facts of this case would give rise to such a claim. Therefore, § 1981 simply is not

applicable to this action. In addition, as discussed above, the undersigned has already

concluded that the Defendants were operating under federal law, and thus because

section § 1981 (c) states that the section only applies to actions under color of State law

or nongovernmental action, the Defendants’ actions which arise under color of federal

law are not subject to § 1981. Therefore, the Plaintiff’s claims under this statute must be

dismissed.

As to the Plaintiff’s § 1982 claims, Section 1982 is similar to § 1981, “except that it

focuse[s], not upon rights to make and enforce contracts, but rights related to the

ownership in property.” CBOCS W., Inc. v. Humphries, 553 U.S. 442 (2008). In order to

state a claim under § 1982, like § 1981, the Plaintiff must, inter alia, allege an intent to

discriminate on the basis of race by the Defendant. Daniels v. Dillard’s Inc., 373 F.3d 885

(2004).


The undersigned notes that the Plaintiff refers to 42 U.S.C. §§ 1988 and 2000, in28

his Amended Complaint (DE # 14). However, § 1988 does not provide a cause of actionbut rather is a remedy in the form of attorney’s fees once a claimant establishes a civilrights violation. Thus, because the Plaintiff is proceeding pro se and also has not at thistime established a violation of any civil rights, the Court need not address any claims heseeks to raise under that statute at this point. Similarly, § 2000, which applies todiscrimination in the employment context is not relevant to the facts alleged in theAmended Complaint, and thus the Court does not analyze that section herein.

52

In this case, the Plaintiff has failed to allege discrimination on the basis of his

race other than the conclusory statement that Defendants Adams and Thomas “hate

white people and [e]specially foreigners,” based on what the Plaintiff claims is a hatred

of white people that has “deep roots in their famil[ies]” (DE # 14 at 6). The Plaintiff has

not alleged that any of Defendants Adams or Thomas’ actions were motivated by racial

discrimination, an element required to trigger the protections of 42 U.S.C. §§ 1981 or

1982. See Jackson v. BellSouth Telecomms., Inc., 181 F. Supp. 2d 1345, 1354 (S. D. Fla.

2001) (holding 42 U.S.C. § 1981 claim requires an allegation that the defendant intended

to discriminate on the basis of race). For these reasons, the Plaintiff’s 42 U.S.C. §§ 1981

and 1982 claims should be dismissed for failing to state a claim upon which relief can be

granted.

F. Title 42 U.S.C. § 1983

The Plaintiff also claims relief under 42 U.S.C. § 1983 (DE # 14 at 1). Title 4228

U.S.C. § 1983 states that a person who deprives another person of their constitutional or

legal rights, privileges, or immunities while acting under color of state law shall be

liable. This means that in order to state a claim under § 1983, one must show that the

alleged violation occurred under color of state law. Harvey v. Harvey, 949 F.2d 1127,


As the legal standard that must be met in order to have state action was already29

discussed in the context of the Plaintiff’s Bivens claim, the undersigned sees no need torepeat that analysis here, especially when it is not necessary to discuss those issues inthe context of the Plaintiff’s 42 U.S.C. § 1983 claim.

53

1130 (11th Cir. 1992). The fact that the violation must occur under color of state law29

means that 42 U.S.C. § 1983 does not apply to federal actors who violate federal law.

Hindman v. Healy, 278 Fed. Appx. 893, 895 (11th Cir. 2008) (citing District of Columbia v.

Carter, 409 U.S. 418, 424-25 (1973).

In this case, as previously determined, the Defendants are federal actors

operating under color of federal law. Therefore the Plaintiff is unable to state a claim

under 42 U.S.C. § 1983 upon which relief can be granted.

G. Double Jeopardy

The Double Jeopardy clause of the Fifth Amendment provides that no person

“shall be subject for the same offense to be twice put in jeopardy of life or limb.” U.S.

Const. Amend. V. This means that no person shall be prosecuted for an offense of

which they have already been acquitted or convicted; and, that no one will be subject to

multiple criminal punishments for the same offense. Monge v. California, 524 U.S. 721,

727-28 (1998). The Double Jeopardy clause of the Fifth Amendment protects defendants

from three forms of criminal punishment: 1) prosecution for the same offense after

acquittal; 2) prosecution for the same offense after conviction; and 3) multiple

punishments for the same offense. United States v. Ursery, 518 U.S. 267 (1996).

In this case, the Plaintiff claims his incarceration for a violation for which he

already received disciplinary sanctions constitutes double jeopardy (DE # 14 at 5). Thus,

the issue in this case is whether the Plaintiff was subjected to multiple punishments for

the same offense. For the following reasons, the undersigned concludes that no double


54

jeopardy violation occurred under the facts of this case. Specifically, the Plaintiff claims

he was incarcerated for driving an automobile without prior authorization and

possessing a hazardous tool, which he claims already resulted in the disciplinary

sanctions of having his status of home confinement revoked for three weeks, losing

visitation privileges for three weeks, and losing weekend passes for three weeks (DE #

14 at 4-5).

In United States v. Mayes, 158 F.3d 1215 (11th Cir. 1998), the Eleventh Circuit

examined, pursuant to the double jeopardy clause, whether prison disciplinary sanctions

for conduct connected with a prison riot precluded subsequent criminal prosecution

against the same prisoners for the same conduct. The Court held that a subsequent

criminal prosecution for the same conduct did not violate the double jeopardy clause,

because the prison’s disciplinary sanctions imposed on the inmates were not based

upon “criminal” regulations and thus did not implicate double jeopardy concerns. In

reaching this conclusion, the Court noted, “Prison officials have no authority to alter the

inmates' original criminal sentences. They merely implement disciplinary proceedings

that may, at most, change the conditions of the inmates' confinement for purposes of

maintaining institutional order and encouraging compliance with prison rules.”

Id. at 1224-25. The Court reached this conclusion despite the fact that the prison

discipline at issue included disciplinary transfers to maximum security prisons and

disallowance of between 41 and 94 days of accrued good conduct time. Id. at 1217.

Similarly, in this case, to the extent that the Plaintiff was disciplined for a vehicle

violation, that violation was not “criminal” in nature. Further, assuming that the Plaintiff

was in fact disciplined for that violation, the transfer of the Plaintiff from a halfway house

to FDC would not implicate double jeopardy concerns, as illustrated by the holding in


55

Mayes.

In addition, the only mention by the Plaintiff of the named Defendants as having

any role in his incarceration is when he alleges that Defendant Thomas requested that he

be incarcerated by the U.S. Marshals (DE # 14 at 5) (stating Defendant Thomas requested

his incarceration and unnamed Dismas staff committed fraud by failing to disclose his

prior disciplinary sanctions). Therefore the Plaintiff’s claims of double jeopardy against

Defendants Adams and Gispert should be dismissed for failing to state a claim as they

are not implicated at all in the Plaintiff’s incarceration. With respect to Defendant

Thomas, as stated above, the Plaintiff has failed to allege that his transfer to FDC or any

discipline that he may have received related to any violations at the halfway house were

predicated upon any criminal violations that would implicate the double jeopardy

clause. As such, the Plaintiff’s double jeopardy clause claims should be dismissed with

prejudice as the Plaintiff is unable to state a cause of action under this clause.

H. Dismissal Pursuant to 28 U.S.C. § 1367(c)(3)

As neither Bivens nor 42 U.S.C. §§ 1981, 1982, or 1983 are available to the Plaintiff

in this case, the Plaintiff has not pled any basis for relief from the alleged violations of

his constitutional rights that is applicable to this case. Thus, the Plaintiff’s claims that

his First, Fourth, Fifth, and Eighth Amendment rights were violated are dismissed for

failure to state a claim on which relief can be granted. Therefore, there are no remaining

claims over which the court has original federal jurisdiction pursuant to 28 U.S.C. §

1331; and, the undersigned further recommends that the Court decline to exercise

supplemental jurisdiction over his state law claims pursuant to 28 U.S.C. § 1367(c)(3).


56

I. The Plaintiff’s State Law Claims

If the Court elects to retain jurisdiction over the Plaintiff’s state law claims, the

undersigned recommends that each be dismissed for the reasons stated below.

1. False Arrest and Imprisonment

The Plaintiff claims the Defendants committed the state law torts of false arrest

and imprisonment, although he does not explicitly state what constituted his alleged

false arrest and imprisonment (DE # 14 at 2-8). Construing the Plaintiff’s Amended

Complaint liberally, it is likely that the Plaintiff’s claim stems from being taken into

custody by the United States Marshals, and imprisoned at the Federal Detention Center

in Miami for 81 days at the request of Defendant Thomas (DE # 14 at 6) (discussing arrest

and imprisonment and saying it was illegal).

The gravamen of the tort of false arrest is the unlawful restraint of a person

against that person's will. Johnson v. Weiner, 155 Fla. 169, 19 So. 2d 699, 700 (1944);

Spears v. Albertson's Inc., 848 So. 2d 1176, 1178 (Fla. Dist. Ct. App. 2003). As stated in

Perry v. State, 968 So. 2d 70, 74 (Fla. Dist. Ct. App. 2007), “It is uniformly held that an

arrest, in the technical and restricted sense of the criminal law, is ‘the apprehension or

taking into custody of an alleged offender, in order that he may be brought into the

proper court to answer for a crime.’” Id. (citing A. Cornelius, Search and Seizures, § 47

(2nd Ed. 1930)).

In the instant action, it is clear that the Plaintiff was not arrested and thus is

unable to state a claim for false arrest. The Plaintiff implicitly concedes this point in his

description of his transfer to FDC, as follows: “. . .at the request of Derek Thomas, the

Movant was removed from the Dismas Charities premises by U.S. Marshals Agents,

without any explanation, and transported to a Federal Detention Center in Miami.” (DE #


57

14 at 5). Thus, the Plaintiff does not even allege that he was “arrested” and even if he

used the term “arrest,” it is clear that he was not arrested under the facts of this case.

Rather, the Plaintiff correctly states that he was “transported” to the FDC. There is no

indication that he was taken into custody in order that he may be brought into court to

answer for a crime. The Plaintiff’s inability to establish that he was arrested under these

facts is not surprising given that he was a convicted prisoner in the midst of completing

his sentence. Therefore, it is hard to fathom how his movement from the halfway house

to a federal facility could be construed as an arrest, even if he should not have been

removed from the halfway house program. As such, the Plaintiff’s claim for false arrest

must be dismissed.

Similarly, the Plaintiff’s claim of false imprisonment fails. The essential elements

of a cause of action for false imprisonment are: (1) the unlawful detention and

deprivation of liberty of a person; (2) against that person's will; (3) without legal

authority or “color of authority”; and (4) which is unreasonable and unwarranted under

the circumstances. Montejo v. Martin Mem'l Med. Ctr., Inc., 935 So.2d 1266, 1268 (Fla.

Dist. Ct. App. 2006) (citations omitted). Again, much like the failure of the Plaintiff to

assert that he was arrested, the Plaintiff is unable to assert that he was unlawfully

detained or that his transport from the halfway house to FDC was without “legal

authority” or “color of authority” because, as stated above, the Plaintiff was still

completing his sentence for his conviction. Thus, the Plaintiff’s claim for false

imprisonment should be dismissed.

2. Assault

The Plaintiff asserts in general terms that he was assaulted by the Defendants.

An assault requires that a defendant intentionally engage in conduct that gives a plaintiff


58

the reasonable apprehension that he or she will suffer imminent harmful or offensive

conduct to their person, meaning the defendant must have the apparent present ability

to engage in such conduct for his actions to constitute an assault. See Wynn v. City of

Lakeland, 727 F.Supp. 2d 1309, 1315 (M.D. Fla. 2010); see also Lay v. Kremer, 411 So. 2d

1347, 1349 (Fla. Dist. Ct. App. 1982) (stating assault requires apparent present ability to

carry out conduct and saying reasonableness of apprehension is a jury issue).

Additionally, “mere words” do not constitute an assault. Id.

The Plaintiff does not expressly state which Defendants assaulted him or what

facts constitute an assault (DE # 14 at 2-9); however, he states that “he finds Dismas . . .

staff to be very hostile and abusive with conduct that is physically threatening and

humiliating” and that “prisoners are constantly intimidated by staff and threatened to be

taken back to prison . . . every time they attempt to raise a valid issue or concern” (DE #

14 at 4). The Plaintiff also claims that when he discussed the legality of the search with

Defendant Thomas, Defendant Thomas “escalated the conflict to a personal level” and

“attempted to resolve [the discussion] in a vindictive way,” and that he forced the

Plaintiff to vacuum rooms for him despite the Plaintiff’s medical condition, saying that

the Federal Bureau of Prisons had the last say on this matter, not the doctor (DE # 14 at

3-5). The Plaintiff has not claimed that he had a reasonable apprehension of any

imminent contact as a result of these encounters. The Plaintiff’s allegations exemplify

the classic conclusory allegation that “the defendant unlawfully harmed me” condemned

by the Supreme Court as insufficient to state a claim. Therefore, the Plaintiff has not

shown that any of the Defendants intentionally engaged in conduct that gave him the

reasonable apprehension of an imminent harmful or offensive contact. See Wynn, 727

F.Supp. 2d at 1315. For this reason, the Plaintiff has only alleged that Defendant Thomas


Plaintiff’s Response (DE # 33) to the Defendants’ Motion to Dismiss (DE # 26)30

and his Supplement to his Response (DE # 38) also do not mention any facts to indicatewhat conduct is alleged to constitute a battery or who committed the alleged battery(See DE ## 33, 38).

59

subjected him to “mere words” and has failed to state facts that state a claim of relief for

assault that is “plausible on its face.” See Iqbal, 129 S.Ct. at 1949.

3. Battery

The Plaintiff claims the Defendants engaged in conduct that constitutes battery.

A claim of battery requires “the infliction of a harmful or offensive conduct upon another

with the intent to cause such conduct or the apprehension that such conduct is

imminent.” Paul v. Holbrook, 696 So.2d 1311, 1312 (Fla. Dist. Ct. App. 1997). When the

alleged battery involves offensive conduct, the standard that determines whether the

conduct was offensive is whether the conduct would be offensive to “an ordinary person

not unduly sensitive to personal dignity.” Id. The Plaintiff does not allege which

Defendants committed a battery or what action constitutes a battery (See DE # 14 at 2-9).

The only allegation of battery in the Amended Complaint is when battery is mentioned as

a state law theory on which he can recover (See DE # 14 at 8). For this reason, the

Plaintiff has failed to state facts that state a claim of relief for battery that is “plausible

on its face.” See Iqbal, 129 S.Ct. at 1949. 30

4. Malicious Prosecution

The Plaintiff alleges he was the target of malicious prosecution when the U.S.

Marshals removed him from Dismas and incarcerated him at the Federal Detention

Center (DE # 14 at 6). 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


60

with the issuance of the disciplinary report of October 15, 2010 (See DE # 14 at 4-6).

In order to state a claim of malicious prosecution, a plaintiff must show (1) that

there was a judicial proceeding, (2) that it was “legal[ly] caus[ed]” by the present

defendant and directed towards the present plaintiff, (3) that there was a “bona fide”

termination of the proceeding in favor of the present plaintiff, (4) that there was no

probable cause for the prosecution, (5) that there was malice, and (6) that damages

resulted. Hickman v. Barclay’s Intern Realty, Inc., 16 So.3d 154, 155-56 (Fla. Dist. Ct. App.

2009). An action for malicious prosecution will fail if plaintiff cannot prove all the

aforementioned elements. Endacott v. International Hospitality, Inc., 910 So.2d 915, 920

(Fla. 3rd Dist. Ct. App. 2006).

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. See Iqbal, 129 S.Ct. at 1949. 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 (See DE # 14 at 6). 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. Moreover, 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 to allege a claim of malicious prosecution upon which relief can be granted.


61

5. Abuse of Process

The Plaintiff claims the Defendants committed the tort of abuse of process. The

tort of abuse of process usually involves “some form of extortion” and requires that “the

defendant made an illegal, improper, or perverted use of process, that the defendant had

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

process, and, that as a result of such action on the part of the defendant, the plaintiff

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

Dist. Ct. App. 2010). This means that in order to show abuse of process, a plaintiff must

show that the process was used “for an immediate purpose other than that for which it

was designed,” and that if the process was used to “accomplish the result for which it

was intended,” then there is no abuse of process, even if it was the product of “an

incidental or concurrent motive of spite or other purpose.” Id. Moreover, an action for

abuse of process only concerns itself with improper uses of process after a complaint is

filed and process is served. Id.

In this case, the Plaintiff has not stated which Defendant committed the tort of

abuse of process or what acts constitute an abuse of process (See DE # 14 at 2-9).

Moreover, the Plaintiff only mentions the term “abuse of process” when stating in

conclusory fashion that abuse of process is a theory on which he can recover (DE # 14

at 8). At most, the Plaintiff alleges that one or more of the Defendants used the

disciplinary process under which he was initially punished for driving a car and

possessing an allegedly hazardous tool out of a desire to harass him after he challenged

the basis for his violations (DE # 14 at 3-5) (stating Defendant Thomas escalated the

conflict to a personal level when faced with the legal aspect of the search, used varying

regulations to accommodate his personal views, and attempted to falsely charge the


62

Plaintiff with a new offense after he was imprisoned). Assuming these allegations are

true, they do not allege an abuse of process since the Defendants used the disciplinary

report for the purpose for which it was designed–to document a disciplinary violation–

even if the documentation of the violation was motivated by “spite or other purpose.”

See S & I Investments, 36 So.3d at 917. For this reason, the Plaintiff has failed to state a

claim for abuse of process upon which relief can be granted.

6. Negligence and Gross Negligence

The Plaintiff claims that the Defendants were negligent by “failing to ascertain

[his] medical condition . . . even after he complained of feeling ill” (See DE # 14 at 6). In

Florida, an action for negligence requires a duty, a breach of the duty, but for and

proximate cause, and damages. Clay Elec. Co-Op., Inc., v. Johnson, 873 So. 2d 1182,

1185 (Fla. 2003). 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. West’s 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 only states that his negligence claim stems from

“irreparable harm” 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 (See DE # 33 at 6). Moreover, the Plaintiff does not mention gross

negligence other than when he states it as a claim upon which he is trying to recover

(DE # 14 at 8). Without any indication that the Defendants were the ones who were

negligent or of what harm the Plaintiff suffered, the Plaintiff’s claim is merely a


The Plaintiff’s Amended Complaint is unclear as to what caused his emotional31

distress, saying only that the “misconduct described above” caused his emotionaldistress; however, the main facts he describes before this statement are the allegedviolation of his Fourth Amendment rights and his punishment for violating Dismasregulations (See DE # 14 at 3-5).

63

conclusory statement that the Defendants were negligent. 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 his claim of negligence should be

dismissed for failure to state a claim. See Iqbal, 129 S.Ct. at 1949.

7. Intentional Infliction of Emotional Distress

The Plaintiff claims he was the victim of the Defendants’ intentional infliction of

emotional distress but does not state which Defendant, if any, intended to inflict

emotional distress upon him and does not explicitly state what acts constituted the

Defendants’ intentional infliction of emotional distress (See DE # 14 at 2-9). A claim for31

intentional infliction of emotional distress in Florida requires that the defendant acted

with intent or recklessness; that defendant’s conduct was extreme or outrageous,

meaning it “[went] beyond all bounds of decency and to be regarded as atrocious and

utterly intolerable in a civilized community,” and that the conduct caused severe

emotional distress. Saludes v. Republica de Cuba, 655 F. Supp.2d 1290, 1294 (S.D. Fla.

2009).

Viewing the Plaintiff’s claims of emotional distress liberally, as he is proceeding

pro se, the Plaintiff claims he experienced emotional distress as a result of the allegedly

unlawful search of his automobile, seizure of his property, and punishment for this

search and seizure (See DE # 14 at 3-4). The Plaintiff also seems to claim he suffered

emotional distress when Defendant Thomas escalated the disciplinary issue “to a


64

personal level” after the Plaintiff questioned the legal basis for the search of his car and

when Defendant Thomas humiliated him by making him vacuum rooms for Thomas

despite the Plaintiff’s medical condition (DE # 14 at 3). Although the Plaintiff claims he

was the victim of the Defendants’ intentional infliction of emotional distress, he has only

named Defendant Thomas as it pertains to these claims, meaning he has no claim of

intentional infliction of emotional distress against Defendants Adams or Gispert (See DE

# 14 at 3-4). Moreover, the Plaintiff has not alleged any facts that make it plausible on its

face that he suffered severe emotional distress, as he merely stated that these actions

caused emotional distress without stating how he was affected by these actions (See DE

# 14 at 4). For these reasons, the Plaintiff’s claim that he was the victim of the

Defendants’ intentional infliction of emotional distress should be dismissed as it fails to

state a claim upon which relief can be granted.

8. Conversion Claim

Although the Plaintiff has not referred to a state law claim for conversion in his

Amended Complaint, it appears that under the facts of this case, the Plaintiff may be able

to state a claim for conversion against Dismas Charities, although not against the

individual Defendants.

Under Florida law, “Conversion occurs when a person asserts a right of dominion

over chattel which is inconsistent with the right of the owner and deprives the owner of

the right of possession. Estate of Vilanueva ex rel. Villanueva v. Youngblood, 927 So. 2d

955, 950 (Fla. Dist. Ct. App. 2006). Or, stated another way, conversion is an unauthorized

act which deprives another of his property permanently or for an indefinite time. Mayo v.

Allen, 973 So. 2d 1257, 1258 (Fla. Dist. Ct. App. 2008) (citations omitted). Conversion

may be demonstrated by a plaintiff's demand and a defendant's refusal. Id. at 1259


65

(citations omitted).

In this action, the Plaintiff alleges that his property was taken from him by certain

unnamed Dismas staffers who are not named as Defendants in this action. The Plaintiff

further states that he requested that the property be returned to him but that the Dismas

emloyees refused. The Plaintiff claims Dismas authorized and ratified the acts of its

agents (DE # 14 at 8). Although the Plaintiff does not mention it explicitly, interpreting

his Amended Complaint liberally, it appears that he is attempting to assert that Dismas is

liable for the actions of Defendants Adams, Gispert, and Thomas, and other unknown

staff members, under the doctrine of respondeat superior. In Florida, a plaintiff must

show that the employee acted in the scope of his employment, meaning the conduct

alleged must “have been the kind he was employed to perform, have occurred within

time and space limits of his employment, and must have been activated at least in part

by a desire to serve the master” to hold an employer liable under respondeat superior.

Ayers v. Wal-Mart Stores, Inc., 941 F.Supp. 1163, 1168 (M.D. Fla. 1996).

In this case, although the Plaintiff has failed to state a cause of action for

conversion against the individual Defendants named in this action, because the Plaintiff

has alleged facts against the the other unnamed “Dismas Charities staff members,”

which, if true, would state a cause of action for conversion, and the Plaintiff claims

Dismas authorized and ratified the acts of its agents (DE # 14 at 8), he arguably has

stated a claim for conversion against Dismas Charities, Inc. For these reasons, the

Plaintiff’s claim that Dismas should be held liable under respondeat superior should be

dismissed only to the extent that the Amended Complaint fails to comply with Federal

Rules of Civil Procedure 8 and 10, as discussed previously. Therefore, if the Plaintiff is

granted leave to amend his complaint, and he seeks to assert a claim for conversion, he


66

must do so in compliance with Rules 8 and 10.

VI. CONCLUSION

Therefore, for the reasons stated above, and upon a review of the record as a

whole, it is hereby

RECOMMENDED that the Defendants Dismas Charities, Inc., Ana Gispert, Derek

Thomas, and Lashanda Adams’ Motion to Dismiss (DE # 26) be GRANTED.

The parties will have 14 days from the date of this Report and Recommendation

within which to file written objections, if any, for consideration by the Honorable Patricia

A. Seitz, United States District Judge. Failure to file objections timely shall bar the

parties from attacking on appeal any factual findings contained herein. LoConte v.

Dugger, 847 F.2d 745 (11th Cir. 1988); Resolution Trust Corp. v. Hallmark Builders, Inc.,

996 F.2d 1144, 1149 (11th Cir. 1993).

DONE AND SUBMITTED in chambers, in Miami, Florida, on February 7, 2012.

______________________________________ ANDREA M. SIMONTON U.S. MAGISTRATE JUDGE

Copies furnished via CM/ECF to:

The Honorable Patricia A. Seitz,United States District Judge

Counsel of Record and pro se Plaintiff


Document 94

Technology

defendants motion

amended complaint

defendant dismas charities

plaintiff seeksrelief

plaintiff traianbujduveanu

plaintiffs response

staff members of dismas

case stem