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IN THE UNITED STATES COURT OF APPEALS IN AND FOR THEELEVENTH CIRCUIT
Case No.: 1311599E
L.T. No.: 1120120CIVSEITZ/SIMONTON
TRAIAN BUJDUVEANU,
Appellant/Plaintiff, vs. DISMAS CHARITIES, INC., ANA GISPERT,DEREK THOMAS and LASHANDA ADAMS,
Appellees/Defendants.__________________________________/
APPEAL FROM THE UNITED STATES DISTRICT COURT FORTHE SOUTHERN DISTRICT OF FLORIDA
INITIAL BRIEF OF APPELLANT TRAIAN BUJDUVEANU
Traian BujduveanuPro Se Plaintiff/Appellant
5601 West Broward BoulevardPlantation, Florida 33317Phone: (954) 6637768
IN THE UNITED STATES COURT OF APPEALS IN AND FOR THE
ELEVENTH CIRCUIT
Case No.: 1311599E
L.T. No.: 1120120CIVSEITZ/SIMONTON
TRAIAN BUJDUVEANU,
Appellant/Plaintiff, vs. DISMAS CHARITIES, INC., ANA GISPERT,DEREK THOMAS and LASHANDA ADAMS,
Appellees/Defendants.__________________________________/
APPEAL FROM THE UNITED STATES DISTRICT COURT FORTHE SOUTHERN DISTRICT OF FLORIDA
INITIAL BRIEF OF APPELLANT TRAIAN BUJDUVEANU
Traian BujduveanuPro Se Plaintiff/Appellant
5601 West Broward BoulevardPlantation, Florida 33317Phone: (954) 6637768
IN THE UNITED STATES COURT OF APPEALS IN AND FOR THEELEVENTH CIRCUIT
Case No.: 1311599E
L.T. No.: 1120120CIVSEITZ/SIMONTON
TRAIAN BUJDUVEANU,
Appellant/Plaintiff, vs. DISMAS CHARITIES, INC., ANA GISPERT,DEREK THOMAS and LASHANDA ADAMS,
Appellees/Defendants.__________________________________/
APPEAL FROM THE UNITED STATES DISTRICT COURT FORTHE SOUTHERN DISTRICT OF FLORIDA
INITIAL BRIEF OF APPELLANT TRAIAN BUJDUVEANU
Traian BujduveanuPro Se Plaintiff/Appellant
5601 West Broward BoulevardPlantation, Florida 33317Phone: (954) 6637768
Table of Contents
Table of Citations Page 1 Statements of Facts Page 3 Statements of the Case Page 3 Argument Page 8 Issue 1: Whether the lower tribunal erred ingranting Defendants Motion for SummaryJudgment, by overlooking DefendantsApparent Abuse of Process? Page 11 Issue #2: Whether the lower tribunal erred ingranting Defendants Motion for Summary Judgment,by overlooking Plaintiff’s /Appellant’s claimsfor False Arrest and Imprisonment? Page 16
Issue #3: Whether the lower tribunal erredin granting Defendants Motion for SummaryJudgment, by overlooking Plaintiff’s /Appellant’sclaims for Assault and Battery? Page 18
Issue #4: Whether the lower tribunal erred ingranting Defendants Motion for Summary Judgment,by overlooking Plaintiff’s /Appellant’sclaims for Malicious Prosecution? Page 20
Issue #5: Whether the lower tribunal erred ingranting Defendants Motion for Summary Judgment,by overlooking Plaintiff’s /Appellant’s claimsfor Negligence and Gross Negligence? Page 24
Issue #6: Whether the lower tribunal erred ingranting Defendants Motion for Summary Judgment,by overlooking Plaintiff’s /Appellant’sclaims for violation of his First Amendment Rights? Page 27
Issue #7: Whether the lower tribunal erred ingranting Defendants Motion for Summary Judgment,by overlooking Plaintiff’s /Appellant’s claims forviolation of his Fourth Amendment Rights? Page 28
Issue #8: Whether the lower tribunal erred ingranting Defendants Motion for Summary Judgment,by overlooking Plaintiff’s /Appellant’s claimsfor violation of his Fifth and FourteenthAmendment Rights? Page 31
Issue #9: Whether the lower tribunal erred ingranting Defendants Motion for Summary Judgment,by overlooking Plaintiff’s /Appellant’s claims forviolation of his Fifth and Fourteenth AmendmentRights? Page 34
Conclusion Page 37 Certificate of Service Page 38
Table of Citations
Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Massachusetts Correctional Institution v. Hill, 472 U.S. 445, 454, 105 S.Ct.2768, 2773, 86 L.Ed.2d 356 (1985).
Parenti v. Ponte, 727 F.2d 21, 25 (1st Cir.1984).
The Restatement (2nd) of Torts, §31.
Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992).
Reed, 77 F.3d at 1054; Torres, 966 F.Supp. at 1365.
Doby v. DeCrescenzo, 1996 U.S. Dist. LEXIS 13175, *40 (E.D. Pa. Sept. 9,1996).
Chatham v. Adcock, (N.D. Ga. Sept. 28, 2007).
Allen v. McMorris, No. 4:06cv810 SNL, 2007 WL 172564, at *2 (E.D.
Mo. J Enigwe v. Zenk, No. 03CV854 (CBA), 2006 WL 2654985, at *4(E.D.N.Y. Sept. 15, 2006) (unpublished) an. 19, 2007).Torres v. Superintendent of Police, 893 F.2d 404, 409 (1st Cir.1990).
Schwartz v. Public Adm'r of Bronx County, 24 N.Y.2d 65, 298 N.Y.S.2d955, 961, 246 N.E.2d 725, 729 (1969).Morales v. Ramirez, 906 F.2d 784, 788 (1st Cir.1990).28 C.F.R. § 547.20.Estelle v. Gamble,429 U.S. 97, 10304, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976).
Lozano v. Smith,718 F.2d 756, 768 (5th Cir.1983).
Wright v. Rushen, 642 F.2d 1129, 113233 (9th Cir. 1981)(citation omitted).682 F.2d at 124647Fox v. Custis, 372 S.E.2d 373, 375 (Va. 1988).Mathes v. Ireland, 419 N.E.2d 782, 784 (Ind.Ct.App.1981).United States v. Matlock, 415 U. S. 164, 171 (1974).Schneckloth v. Bustamonte, 412 U. S. 218 (93 SC 2041, 2048, 36 LE2d 854)(1973).United States v. Smith, 395 FSupp. 1155, 115657 (W.D.N.Y. 1975).Inman v. State, 124 Ga. App. 190 (2) (183 SE2d 413) (1971)).Enigwe v. Zenk, No. 03CV854 (CBA), 2006 WL 2654985, at *4 (E.D.N.Y.Sept. 15, 2006) (unpublished).Flagg Bros., Inc. v. Brooks,436 U.S. 149, 155, 98 S.Ct. 1729, 56 L.Ed.2d185 (1978).RendellBaker v. Kohn,457 U.S. 830, 842, 102 S.Ct. 2764, 73 L.Ed.2d 418(1982).Skelton v. PriCor, Inc.,963 F.2d 100, 102 (6th Cir.), cert. denied, 503 U.S.989, 112 S.Ct. 1682, 118 L.Ed.2d 398 (1992)Lemoine v. New Horizons Ranch & Ctr.,990 F.Supp. 498, 502(N.D.Tex.1998).Wright v. Rushen, 642 F.2d 1129, 113233 (9th Cir. 1981)(citation omitted).682 F.2d at 124647.
Statement of Facts
1. On July, 28, 2010, with the approval of CCM Director Carlos
Rodriguez the Plaintiff/Appellant was transfer from Colman Low
Correctional Facility to Dismas Charities, Inc. halfway house, located in
Dania, Florida.
2. Defendant/Appellee Dismas Charities, Inc., is nonprofit corporation
501(c)(3) organization, who operates 28 halfway houses in 13 states that
contract from the U.S Government, of which Codefendants Ana Gispert,
Derek Tomas and Lashanda Adams are employees of Dismas Charities,
Inc.
3. Defendant/Appellee Dismas Charities house has limited independent
disciplinary discretion, thus giving it discretion over minor of prohibited
acts. Any serious sanctions required approval of CCM, USPO and
Community Sanctions representatives.
4. Upon arrival at Dismas Charities facility, Plaintiff/Appellant signed
the acknowledgement of all regulations as well as the receipt of a Dismas
Charities Handbook. However, the Plaintiff/Appellant did not receive a
hard copy, as there were none available.
5. The Plaintiff/Appellant provided the appropriate staff members copies
of driver license, driving history from the Division of Motor Vehicles in
Tallahassee, vehicle registration, and valid insurance, in compliance with
the terms and conditions necessary to obtain permission to operate a
motor vehicle during supervision. Be that as it may, the reason for which
the Plaintiff/Appellant was not approved to drive, as contended by the
Defendants, is unknown even today.
6. The Plaintiff/Appellant provided the appropriate staff members copies
of all medical records indicating the severity of his medical conditions and
any doctor recommendations concerning program requirements for
manual labor and work outside of the facility.
7. During his residency at Dismas House, the Plaintiff/Appellant was
constantly terrorized, intimidated, and humiliated without any regard for
his medical conditions or his dignity, in that he was forced to do cleaning
jobs when in fact in violation of his doctor’s orders, even going as far as
to prevent his medical treatment, adding insult to injury. When asked,
“who should have the last say on this matter, the doctor or the federal
prison'', Derek Thomas answered, “We have already had this
conversation. Here the Bureau of prison rules and not the doctor”.
8. The Defendants/Appellee openly denied the Plaintiff/Appellant’s
request to attend Religious Services at a Romanian Orthodox church on
Sundays, located 16 minutes by car (9.5 miles) from the Dismas Charities
halfway house, under the pretext of Federal Guidelines. The
Plaintiff/Appellant’s research has shown such guidelines do not exist and
the Federal Government remains neutral regarding religious practice or
distances to and from a religious institution at a halfway house, thus
constituting a violation of the Plaintiff/Appellants rights to religious
freedom and the free exercise thereof, and further violating the United
States stance on separation of church and state.
9. In violation of his Title VII protections, the Plaintiff/Appellant was
discriminated against and harassed constantly, by the
Defendants/Appellees, because he was a foreigner, spoke English with an
accent, practiced GreekOrthodox Religion and he was white. Similarly
situated residents at Dismas house were not treated alike.
10. On September 28, 2011, the Plaintiff/Appellant was approved by the
CCM Director Carlos Rodriguez, to be transferred to home confinement,
due to severe medical problems. The USPO Office was advised and
agreed on Plaintiff/Appellant's home confinement transfer, requiring the
Plaintiff/Appellant to report once a week to Dismas halfway house.
11. On October 13, 2010, the Plaintiff/Appellant drove his family
vehicle to Dismas halfway house for his biweekly report .
12. An illegal search was conducted of the vehicle that
Plaintiff/Appellant drove and property was removed from the vehicle
without the knowledge of the Plaintiff/Appellant and without the
Plaintiff/Appellant being present at the search. Defendants asserted that a
cellular telephone, a phone charger and a packet of cigarettes were found
in the glove compartment of the car and confiscated. Data and evidence
from the surveillance cameras that contained information regarding the
illegal search and seizure, was deliberately destroyed by the Defendants.
13. Having a cellular telephone in the car, does not represent a violation
for prisoners on home confinement as halfway house rules and regulations
are not the same as home confinement rules and regulations.
Plaintiff/Appellant does not smoke, and operating a motor vehicle without
prior approval represents a minor violation, and does not require
incarceration.
14. As a result of this incident, the Plaintiff/Appellant was given three
separate violations, on different dates, for the same incident that occurred
in the same day, time and place, without Due Process of Law. Not all
copies of the three written violations were released as requested by the
discovery.
15. On October 20, 2010, at 6:30 A.M., while sleeping in his bed at
Dismas House, the Plaintiff/Appellant was arrested by two U.S. Marshall
agents and transported to F.D.C. Miami, without any charges levied
against him and without Due Process Law.
16. The incarceration was done without the knowledge of USPO and
CCM Director, Carlos Rodriguez, as he did not sign the papers for the
incarceration, thus making it clear that the Defendants engaged in a
campaign of erasing evidence and fabricating documents in order to cover
up any suspicion of the events. The Plaintiff/Appellant is aware that the
following documents have been fabricated.
17. While incarcerated at F.D.C. Miami, no charges were ever levied
against the Plaintiff/Appellant and no investigation of any kind was carried
out against him. No federal employee of F.D.C. wanted to get involved
with his case, they were aware of the covert and illegal actions of the
Defendant. Federal Department of Corrections Miami Counselor Price
and Unit Manager Harrison, under the strict suggestions of the F.D.C.
warden, attempted in a few instances to contact the office of CCM
Director, Carlos Rodriguez, to no avail.
18. The Plaintiff/Appellant was released from F.D.C. Miami on January
03, 2011.
Statement of the Case
1. On January 12, 2011, Appellant/Plaintiff , Traian Bujduveanu, filed
MOTION for Return of Property against Dismas Charities, Inc., Ana
Ginspert (Docket Entry #1).
2. On March 29th, 2011 Appellan Appellant/Plaintiff , Traian
Bujduveanu, filed AMENDED COMPLAINT of Damages against
Dismas Charities, Inc., Ana Ginspert, Derek Thomas, Adams Leshota
(Docket Entry #14).
3. On May 4th, 2011, Defendants/Appellees filed MOTION to Dismiss
Amended Complaint (Docket Entry #26).
4. On May 24th, 2011 Appellant/Plaintiff , Traian Bujduveanu, filed
MOTION to Strike MOTION to Dismiss and Incorporated Memorandum
of Law.
5. On May 25th, 2011 Defendants/Appellees filed RESPONSE to Motion
re MOTION to Strike (Docket Entry #35).
6. On June 6th, 2011, Judged from lower tribunal entered ENDORSED
ORDER granting Plaintiff's Motion to Strike Document from the Docket
(Docket Entry #40).
7. On August 5th, 2011 Appellant/Plaintiff , Traian Bujduveanu filed
MOTION for the Production of Documents and Electronically Stored
Information, Under Rule 34 by Traian Bujduveanu. The Judge of lower
tribunal entered GENERAL ORDER ON DISCOVERY OBJECTIONS.
denying, without prejudice, Plaintiff's Motion for the Production of
Documents and Electronically Stored Informations, Under Rule 34
(Docket Entries #50, 51, and 52).
8. On August 30, 2011 Appellant/Plaintiff , Traian Bujduveanu filed
MOTION to Compel Production of Documents and Electronically Stored
Information (Docket Entry #53). The Defendants/Appellees replied with
NOTICE of Compliance with Mediation Order (Docket Entry #55).
On September 9th, 2011, Defendants/Appellee filed RESPONSE in
Opposition MOTION to Compel Production of Documents and
Electronically Stored Informations (Docket Entry #56). Appellant/Plaintiff
, Traian Bujduveanu filed MOTION to Compel Second Request for
Production of Documents, First and Second Set of Interrogatories. On
September 28th the Defendants/Appellees filed RESPONSE in Opposition
re MOTION to Compel Second Request forProduction of Documents,
First and Second Set of Interrogatories (Docket Entry # 57, 58, 59).
9. After being unable to compel discovery, and mediation ending in an
impasses Appellant/Plaintiff , Traian Bujduveanu filed NOTICE of Motion
for Summary Judgment (Docket Entry #70).
10. On December 16th, 2011 Defendant/Appellees responded with a
MOTION for Summary Judgment (Docket Entry #83).
11. On March 29th 2013, the Judge from the lower tribunal entered an
ORDER granting Defendants' Motion for Summary Judgment; deny
Plaintiff's Motion for Summary Judgment, and entered a FINAL
JUDGMENT in favor of the Defendants against the Plaintiff (Docket
Entry #131 and 132).
Argument(s)
Issue #1: Whether the lower tribunal erred in granting Defendants
Motion for Summary Judgment, by overlooking Defendants/Appellees
Apparent Abuse of Process?
Abuse of process is a cause of action in tort arising from one
party making a malicious and deliberate misuse or perversion of
regularly issued court process (civil or criminal) not justified by the
underlying legal action. Under Wolff v. McDonnell, 418 U.S. 539, 94
S.Ct. 2963, 41 L.Ed.2d 935 (1974), a prisoner facing a disciplinary
hearing that may result in the loss of a liberty interest must receive "(1)
advance written notice of the disciplinary charges; (2) an opportunity,
when consistent with institutional safety and correctional goals, to call
witnesses and to present documentary evidence in his defense; (3) a
written statement by the fact finder of the evidence relied on and the
reasons for the disciplinary action." Superintendent, Massachusetts
Correctional Institution v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768,
2773, 86 L.Ed.2d 356 (1985), citing Wolff, 418 U.S. at 56367, 94
S.Ct. at 2978. Even though Smith did not have a liberty interest in
remaining at Gardner, he was entitled to these procedural safeguards
because he risked the loss of liberty entailed in isolation time, a
sanction which he ultimately received. See Parenti v. Ponte, 727 F.2d
21, 25 (1st Cir.1984). The Defendants have an obligation to comply
with all statutes, regulations and guidelines from the National Archives
and Records Administration. The CCM office based in Miami reports
and abides by the rules and regulations set by the Federal Bureau of
Prison. Accordingly, the CCM office has to use proper Federal
Forms each time a prisoner is concerned. All documents must be
documented in the Sentry system to be fully in compliance with all
statutes, regulations and guidelines. The abuses of process of are as
follows:
1. No copies of the Transfer Orders (BPS399.058) nor Transfer
Reciept (BP821.051) were ever provided to the
Plaintiff/Appellant, because they did not and do not exist to this
day.
2. The transfer of a halfway house resident back to the Federal
Prison it is NOT done thru a Memorandum. The US Federal
Government requires that an approved form (BPS399.058) and
(BP821.051), is used for any action taken by a federal
employee. In this case, the request MUST be placed in the
SENTRY SYSTEM to the US Marshal, and then other Transfer
and custody forms must be filled out with the appropriate dates
and signatures, and a copy must be given to the transferred
inmate. This has not taken place because charges or
investigations against the Plaintiff/Appellant, were never levied
by the Federal Bureau of Prisons. This was a gross Fabrication
with a premeditated coverup.
3. The Letter from Derek Thomas to Carlos Rodrigues, which is a
fabricated document also, it has no date. Without a date, this
letter is not an official document. Even more disturbing is the
fact that Authority to transfer federal inmates from nonfederal
facilities to federal intuitions is delegated to CCMs.
4. The letter from Derek Thomas to offender Traian Bujduveanu, a
fabricated document, also does not have a date.
5. The fabricated letter, allegedly written by Ana Gispert on
October 20, 2010, states that “Mr. Bujduveanu's adjustment to
the program has been poor, as witnessed by his inability to
follow all of the rules and regulations set forth by Dismas
Charities and the Bureau of Prisons.” Yet all other documents
state that he is cooperative and that he did all community
transition courses, and that he will no longer benefit from the
halfway house. Which leads the Plaintiff/Appellant and the court
to question whether alleged minor violations of warrant such a
drastic change in opinion, and moreover, whether this change in
opinion was done as matter of fact or simply to remove
Plaintiff/Appellant from the facility.
6. In a letter from Ana Gispert to Bobbie Lowery, dated January 5,
2011 she is instructing him to make certified documents stating
that they have attempted to return the property to the family of
the Plaintiff/Appellant. At this time the property of the
Plaintiff/Appellant is still in the Derek Thomas’ office and under
his control. She is practically instructing them to lie and make
false documents, as my family will attest to the fact that they
were never contacted to retrieve my property.
7. The application of a violation Code 108 “Possession,
Manufacture, or introduction of a hazardous tool (Tools most
likely to be used in an escape or escape attempt or to serve as a
weapon capable of doing of doing serious bodily harm to
others; or those hazardous to institutional security or personal
safety”, to include that of a cell phone. First and foremost, a
cell phone unless used a detonation device cannot be seen as
threat to personal or institutional safety. At best this alleged
violation should have been charged as a Code 305, “Possession
of anything not authorized for retention or receipt by the inmate,
not issued to through regular channels. However, given the fact
that the Plaintiff/Appellant was on home confinement, even this
charge would not be a perfect fit given the fact that those on
home confinement are afforded additional rights and liberties as
they are not subject to 24 hour monitoring by facility.
Ultimately, his charges were trumped up to such that he would
be charged with a violation that might cause his removal from
the program rather than one that is more in line with the
Plaintiff/Appellant’s alleged actions that took place that day.
Given the harmless nature of a cell phone, and its inability to
enable an inmate to escape from a correctional facility, as a tool
used for serious bodily harm, it is clear that there is some
underlying malicious intent behind the use of this violation code
as opposed to one that was more appropriate.
We therefore argue that the trial court erred in failing to deny the
Appellee’s Motion for Summary Judgment, and would humbly request that
Order Granting said Summary Judgment overturned.
Issue #2: Whether the lower tribunal erred in granting DefendantsMotion for Summary Judgment, by overlooking Plaintiff’s /Appellant’sclaims for False Arrest and Imprisonment?
The tort of false imprisonment or false arrest contains the following elements:
The Restatement (2nd) of Torts, §31, reads: An actor is subject to
liability to another for false imprisonment if:
(a) he acts intending to confine the other or a third person within
boundaries fixed by the actor, and
(b) his act directly or indirectly results in such a confinement of the
other, and
(c) the other is conscious of the confinement or is harmed by it.
False imprisonment has four elements:
1. intent,
2. actual confinement in boundaries not of the plaintiff's
choosing,
3. a causal link, and
4. Awareness of the confinement.
The Defendant/Appelleee argued that one who is imprisoned couldn’t be
falsely arrested, and furthermore that it was the US Marshals at the direction
of the Federal Bureau of Prisons. However, it was the direct and indirect
actions of the Defendant that lead to the confinement of the
Plaintiff/Appellant. Although, the Defendant was not the one that physically
placed the Plaintiff/Appellant in specific confined area and held him against
his will, their acts were the causal act that lead to the Plaintiff/Appellant being
placed in prison. Causation is, of course, a required element of a false
imprisonment. See Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992). A
probation/ parole officer need not actually use force to detain a
probation/parolee illegally. Although false imprisonment usually follows false
arrest, false imprisonment may take place even after a valid arrest.
However, a police officer may be held to have “initiated” a criminal
proceeding if he knowingly provided false information to the prosecutor or
otherwise interfered with the prosecutor’s informed discretion. See, Reed,
77 F.3d at 1054; Torres, 966 F.Supp. at 1365. In such cases, “an intelligent
exercise of the ... [prosecutor’s] discretion becomes impossible,” and a
prosecution based on the false information is deemed “procured by the
person giving the false information.” However, a private citizen may be held
liable for false arrest under § 1983 if he or she caused the plaintiff to be
arrested by virtue of false statements he or she made to the police. Doby v.
DeCrescenzo, 1996 U.S. Dist. LEXIS 13175, *40 (E.D. Pa. Sept. 9, 1996)
We therefore argue that the trial court erred in failing to deny the
Appellee’s Motion for Summary Judgment, and would humbly request that
Order Granting said Summary Judgment overturned.
Issue #3: Whether the lower tribunal erred in granting DefendantsMotion for Summary Judgment, by overlooking Plaintiff’s /Appellant’sclaims for Assault and Battery?
The Defendants/Appellee maked the claim that they are entitled to
summary judgment as the Plaintiff has not provided any facts to support
allegations of assault and battery. It is clear that no such record of the
assaults and battery that took place as the Defendant’s refused to provide the
Plaintiff/Appellant with and means of documenting said actions. The
procedures established by the Bureau of Prisons require that appeals to the
General Counsel shall include copies of Forms BP9, BP10, and their
responses. BOP Program Statement (P.S.) 1330.7, p 7(b). The only
exception to this requirement is where the inmate has not yet received a
response. P.S. 1330.7, p 6(6). You must use up all administrative solutions
before suing in federal court. It would be an anomalous result, indeed, if
prison officials could foreclose prison inmates from filing civil rights lawsuits
in federal court simply by depriving them of the means to fulfill a mandatory
prerequisite to doing so,” Chatham v. Adcock, (N.D. Ga. Sept. 28, 2007).
Allen v. McMorris, No. 4:06cv810 SNL, 2007 WL 172564, at *2 (E.D. Mo.
Jan. 19, 2007) (unpublished) (holding allegation that prisoner could not get
grievance policy or forms barred summary judgment for defendants).
Anna Gispert’s admission of not having provided BP9 forms to
Plaintiff/Appellant, provides the Plaintiff/Appellant no means of documenting
the abuses of process, abuses of Constitutional rights and civil liberties on
the part of the Defendants, and even goes to the extent of providing the
Plaintiff/Appellant very little material documentation of his experiences at the
halfway house (Exhibit #5 to this motion). However, it was their intention all
along to deny the Plaintiff/Appellant an opportunity to ever have a legitimate
opportunity to defend himself both in their nonexistent inhouse judiciary
proceedings, when he faced the Federal Bureau of Prisons prior to being sent
back to prison, and currently in his civil action against the Defendants.
Enigwe v. Zenk, No. 03CV854 (CBA), 2006 WL 2654985, at *4 (E.D.N.Y.
Sept. 15, 2006) (unpublished) “denying summary judgment to defendants
where plaintiff asserted his repeated efforts to obtain forms were fruitless”.
We therefore argue that the trial court erred in failing to deny the
Appellee’s Motion for Summary Judgment, and would humbly request that
Order Granting said Summary Judgment overturned.
Issue #4: Whether the lower tribunal erred in granting DefendantsMotion for Summary Judgment, by overlooking Plaintiff’s /Appellant’sclaims for Malicious Prosecution?
The Defendants argued that since the Plaintiff/Appellant has not,
and cannot establish the elements of malicious prosecution, especially
the key elements of the commencement of judicial proceeding on the
plaintiff, by the defendant and termination of the in favor of the
Plaintiff, that the Defendants should have been awarded summary
judgment.
The common law tort of malicious prosecution originated as a remedy
for an individual who had been subjected to a maliciously instituted criminal
charge. “All federal claims for malicious prosecution are borrowed from the
common law tort ... [which] imposes liability on a private person who
institutes criminal proceedings against an innocent person without probable
cause for an improper purpose. The federal claim under [42 U.S.C.] section
1983 for malicious prosecution differs from the state civil suit in that it
requires that state officials acting 'under color of law' institute the criminal
proceedings against the plaintiff and thereby deprive him of rights secured
under the Constitution." Torres v. Superintendent of Police, 893 F.2d 404,
409 (1st Cir.1990).
Yet again to combat the Defendant’s/Appellees claim that they did not
initiate prosecution against the Plaintiff, it is undeniable that the US Marshalls,
and Division of Corrections would not have even been aware of any sort of
alleged violation, had it not been for the request that were made by the
Defendants. Yet again, it was the direct and indirect actions of the
Defendant, which lead to the prosecution, and subsequent confinement of the
Plaintiff/Appellant. Section 28(5)(c) states that issue preclusion does not
apply if “the party sought to be precluded, as a result of the conduct of his
adversary or other special circumstances, did not have an adequate
opportunity or incentive to obtain a full and fair adjudication in the initial
action.” Specifically, there are “various factors which should enter into a
determination whether a party has had his day in court [including] such
considerations as ... the availability of new evidence...” Schwartz v. Public
Adm'r of Bronx County, 24 N.Y.2d 65, 298 N.Y.S.2d 955, 961, 246 N.E.2d
725, 729 (1969).
Two aspects of the Danner’s preliminary hearing demonstrates that
they were not afforded a full and fair opportunity to litigate whether probable
cause existed for their arrest. First, the determination of probable cause was
based on the false testimony of Dawn Farris at preliminary hearing. At trial
she recanted virtually all the key accusations necessary to conclude that a
crime had occurred and that the Danners were likely to have committed it.
Second, there were key facts that were not and could not have been
discovered before the preliminary hearing despite the district attorney's open
file policy. Until cross examination of the other sales clerk at preliminary
hearing, no one knew that a customer, Melody Winn, had been present when
the alleged theft took place. Nor was it known that the precise time of the
alleged theft had been recorded by the store's cash register on the customer's
check. Winn's testimony at trial, that she had seen nothing out of the ordinary
during her purchase, was key to the Danner’s defense and to the not guilty
verdict.
Anna Gispert’s admission of not having provided BP9 forms to
Plaintiff/Appellant, provides the Plaintiff/Appellant no means of documenting
the abuses of process, abuses of Constitutional rights and civil liberties on
the part of the Defendants, and even goes to the extent of providing the
Plaintiff/Appellant very little material documentation of his experiences at the
halfway house. Although, "Malicious prosecution does not per se abridge
rights secured by the Constitution." Morales v. Ramirez, 906 F.2d 784, 788
(1st Cir.1990). In articulating the elements of a malicious prosecution claim
under 42 U.S.C. Sec. 1983, we have held that "the complaint must assert that
the malicious conduct was so egregious that it violated substantive or
procedural due process rights under the Fourteenth Amendment." Torres,
893 F.2d at 409. "[F]or substantive due process purposes, the alleged
malicious prosecution must be conscience shocking." Id. at 410. "For
procedural due process purposes ... the plaintiff usually must show the
alleged conduct deprived him of liberty by a distortion and corruption of the
processes of law, i.e., corruption of witnesses, falsification of evidence, or
some other egregious conduct resulting in the denial of a fair trial.... In
addition, the plaintiff must show there was no adequate state post deprivation
remedy available to rectify the harm.
Given the fact that the Plaintiff/Appellant was subject to policies and
procedures of the both Dismas House Charities Correctional procedures,
and had an obligation to exhaust all administrative procedures available to
him, and more importantly that he was not given the opportunity to do so, it
should be clear to this court that “conscience shocking” element of proving
malicious prosecution has been met. First and foremost, the Defendants’
actions denied the Plaintiff/Appellant the ability to show the how alleged
conduct deprived him of liberty, by a distortion and corruption of the
processes of law, i.e., falsification of evidence, and other egregious conduct
namely the denial of documents necessary to ensuring due process, resulting
ultimately in the denial of a fair trial Plaintiff/Appellant.
We therefore argue that the trial court erred in failing to deny the
Appellee’s Motion for Summary Judgment, and would humbly request that
Order Granting said Summary Judgment overturned.
Issue #5: Whether the lower tribunal erred in granting DefendantsMotion for Summary Judgment, by overlooking Plaintiff’s /Appellant’sclaims for Negligence and Gross Negligence?
The Plaintiff/Appellant provided the appropriate staff members of the
halfway house with copies of all medical records indicating the severity of his
medical conditions and any doctor recommendations concerning program
requirements for manual labor and work outside of the facility. During his
residency at Dismas House, the Plaintiff/Appellant was constantly terrorized,
intimidated, and humiliated without any regard for his medical conditions or
his dignity, in that he was forced to do cleaning jobs when in fact in violation
of his doctor’s orders, even going as far as to prevent his medical treatment,
adding insult to injury. Furthermore, he was not provided meals that were
diabetic friendly, and was given disciplinary action for incident where is wife
was delivering food as a result of him not receiving adequate nutrition from
the halfway house. This violates Department of Correction Policies in
which, it is mandated that each institution’s food service program offers
nutritionally balanced, appetizing meals. Special Food and Meals, 28 C.F.R.
§ 547.20 and Program Statement 4700.05, Food Services Manual, provide
that medical diets be available to inmates who require such diets. In addition,
inmates with religious dietary requirements may apply for the religious diet
program, designed to address the dietary restrictions of a variety of different
religions. See Program Statement 5360.09, Religious Beliefs and Practices.
The Plaintiff/Appellant’s research has found however that, a
prison official violates a prisoner's Eighth Amendment rights, and is
deemed negligent if he/she is deliberately indifferent to the prisoner's
serious medical needs. See Estelle v. Gamble,429 U.S. 97, 10304, 97
S.Ct. 285, 50 L.Ed.2d 251 (1976). Deliberate indifference
encompasses only unnecessary and wanton infliction of pain repugnant
to the conscience of mankind. See id.at 10406, 97 S.Ct. 285.
"Subjective recklessness," as used in the criminal law, is the
appropriate test for deliberate indifference. To incur liability under §
1983, an individual must be personally involved in the deprivation of a
person's constitutional rights. See Lozano v. Smith,718 F.2d 756, 768
(5th Cir.1983)
In analyzing claims of Eighth Amendment violations, the courts must
look at discrete areas of basic human needs. As we have recently held, "
'(A)n institution's obligation under the eighth amendment is at an end if it
furnishes sentenced prisoners with adequate food, clothing, shelter,
sanitation, medical care, and personal safety.'" Wright v. Rushen, 642 F.2d
1129, 113233 (9th Cir. 1981)(citation omitted). 682 F.2d at 124647."In a
negligence case, neither the issue of proximate cause nor the sovereign
immunity defenses become germane until it has been established that a
defendant owes to a plaintiff a duty of care that has been breached." Fox v.
Custis, 372 S.E.2d 373, 375 (Va. 1988). However, in Estate of Mathes v.
Ireland, 419 N.E.2d 782, 784 (Ind.Ct.App.1981), the court held that under
§ 319, “[f]or the duty to exist there must therefore not only be an actual
taking charge of the third person, there must also be a knowledge of the
likelihood that he will cause bodily harm.” The Defendants cannot make the
claim that they were unaware of the Plaintiff/Appellants medical condition as
they were provided all of his medical documentation, and moreover, they are
unable to skate around their duty to exercise care for the Plaintiff/Appellants
wellbeing, in that they are obligated by Department of Corrections standards,
human rights standards as well as constitutional standards.
We therefore argue that the trial court erred in failing to deny the
Appellee’s Motion for Summary Judgment, and would humbly request that
Order Granting said Summary Judgment overturned.
Issue #6: Whether the lower tribunal erred in granting DefendantsMotion for Summary Judgment, by overlooking Plaintiff’s /Appellant’s
claims for violation of his First Amendment Rights?First Amendment “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government for a
redress of grievances.” The Defendant makes the claim that according
to Federal Bureau of Prison guidelines, the Plaintiff/Appellant was not
allowed to attend a church outside of 5 miles from the facility.
However in Dismas charities and division of Prison Guidelines state
explicitly that, “You will be able to attend weekly church services, as
approved by your Counselor, maximum of three hours per week,
including travel. Church must be within (5) miles of the facility.
(Church Bulletin and completed Church Report Form must be
provided upon your return back from the facility) Note: Exceptions to
the (5) mile rule will only be made when your stated denomination of
worship cannot be located within five miles of the program. Keeping
this exception in mind, and even with the Plaintiff/Appellant making an
open declaration of his religion of choice being Greek Orthodox, and
further making the case that the closest church is 9.5 miles away, the
Defendants denied the Plaintiff/Appellant’s request to attend his
church services. The Plaintiff/Appellant’s research has shown such
guidelines do not exist and the Federal Government remains neutral
regarding religious practice or distances to and from a religious
institution at a halfway house, thus constituting a violation of the
Plaintiff/Appellants rights to religious freedom and the free exercise
thereof, and further violating the United States stance on separation of
church and state.
We therefore argue that the trial court erred in failing to deny the
Appellee’s Motion for Summary Judgment, and would humbly request that
Order Granting said Summary Judgment overturned.
Issue #7: Whether the lower tribunal erred in granting DefendantsMotion for Summary Judgment, by overlooking Plaintiff’s /Appellant’sclaims for violation of his Fourth Amendment Rights?
Fourth Amendment“The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or
things to be seized.”
An illegal search was conducted of the vehicle that Plaintiff/Appellant
drove and property was removed from the vehicle without the
knowledge of the Plaintiff/Appellant and without the Plaintiff/Appellant
being present at the search. Defendants asserted that a cellular
telephone, a phone charger and a packet of cigarettes were found in
the glove compartment of the car and confiscated. Data and evidence
from the surveillance cameras that contained information regarding the
illegal search and seizure, was deliberately destroyed by the
Defendants. Having a cellular telephone in the car, does not represent a
violation for prisoners on home confinement as halfway house rules
and regulations are not the same as home confinement rules and
regulations. Plaintiff/Appellant does not smoke, and operating a motor
vehicle without prior approval represents a minor violation, and does
not require incarceration.
"When the prosecution seeks to justify a warrantless search by
proof of voluntary consent, it is not limited to proof that consent was
given by the defendant, but may show that the permission to search
was obtained from a third party who possessed common authority
over or other sufficient relationship to the premises or effects sought
to be inspected.' United States v. Matlock, 415 U. S. 164, 171 (1974).
The Fourth and Fourteenth Amendments require that a consent not be
coerced, by explicit or implicit means, by implied threat or covert
force. For, no matter how subtly the coercion was applied, the
resulting 'consent' would be no more than a pretext for the unjustified
police intrusion against which the Fourth Amendment is directed.'
Schneckloth v. Bustamonte, 412 U. S. 218 (93 SC 2041, 2048, 36
LE2d 854) (1973)]." United States v. Smith, 395 FSupp. 1155,
115657 (W.D.N.Y. 1975). It is my position that a defendant's
submission to warrantless searches and seizures should not be the
price of probation.
While a probationer's right of privacy may be justifiably
diminished during the period of probation (see Inman v. State, 124
Ga. App. 190 (2) (183 SE2d 413) (1971)), "[p]robationary status
does not convert a probationer's family, relatives and friends into
'second class' citizens. . . . These people are not stripped of their right
of privacy because they may be living with a probationer or [s]he may
be living with them." State v. Fogarty, supra at 151. The Supreme
Court of Montana, the only court in the country to address the
ramifications of the warrantless search condition of probation on third
parties living with a probationer, concluded that a search warrant based
on probable cause must be obtained before a probationer's residence
may be searched "so that the legal interests of innocent third persons
can be adequately protected. . . ."
We therefore argue that the trial court erred in failing to deny the
Appellee’s Motion for Summary Judgment, and would humbly request that
Order Granting said Summary Judgment overturned.
Issue #8: Whether the lower tribunal erred in granting DefendantsMotion for Summary Judgment, by overlooking Plaintiff’s /Appellant’sclaims for violation of his Fifth and Fourteenth Amendment Rights?
5th Amendment“ No person shall be held to answer for a
capital, or otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in the land or naval
forces, or in the Militia, when in actual service in time of War or public
danger; nor shall any person be subject for the same offence to be
twice put in jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor be deprived of life,
liberty, or property, without due process of law; nor shall private
property be taken for public use, without just compensation.”
The Double Jeopardy Clause includes three distinct
constitutional guarantees: (1) protection against a second prosecution
for the same offense after an acquittal; (2) protection against a second
prosecution for the same offense after a conviction; and (3) protection
against multiple punishments for the same offense.
As a result of the alleged violation, the Plaintiff/Appellant was
given three separate violations, on different dates, for the same incident
that occurred in the same day, time and place, without Due Process of
Law. Not all copies of the three written violations were released as
requested by the discovery. On October 20, 2010, at 6:30 A.M .,
while sleeping in his bed at Dismas House, the Plaintiff/Appellant was
arrested by two U.S. Marshall agents and transported to F.D.C.
Miami, without any charges levied against him and without Due
Process Law. On October 20, 2010, at 6:30 A.M ., while sleeping in
his bed at Dismas House, the Plaintiff/Appellant was arrested by two
U.S. Marshall agents and transported to F.D.C. Miami, without any
charges levied against him and without Due Process Law. The
incarceration was done without the knowledge of USPO and CCM
Director, Carlos Rodriguez, as he did not sign the papers for the
incarceration, thus making it clear that the Defendants engaged in a
campaign of erasing evidence and fabricating documents in order to
cover up any suspicion of the events. The Plaintiff/Appellant in
addition to sanctions levied upon him by the halfway house, he was
also sentenced to service an additional 81 days in federal incarceration.
Fourteenth Amendment“Section 1. “All persons born or
naturalized in the United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the State wherein they reside.
No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.”
In violation of his Title VII protections and 14th Amendment, the
Plaintiff/Appellant was discriminated and harassed constantly, by the
Defendants, because he was a foreigner, spoke English with an accent,
practiced GreekOrthodox Religion and he was white. Similarly
situated residents at Dismas house were not treated alike.
We must again emphasize the fact that Anna Gispert’s admission of
not having provided BP9 forms to Plaintiff/Appellant, provides the
Plaintiff/Appellant no means of documenting the abuses of process, abuses
of Constitutional rights and civil liberties on the part of the Defendants, and
even goes to the extent of providing the Plaintiff/Appellant very little material
documentation of his experiences at the halfway house. The
Plaintiff/Appellant again asserts that, it was their intention all along to deny the
Plaintiff/Appellant an opportunity to ever have a legitimate opportunity to
defend himself both in their nonexistent inhouse judiciary proceedings, when
he faced the Federal Bureau of Prisons prior to being sent back to prison,
and currently in his civil action against the Defendants. Again we, bring the
courts attention to Enigwe v. Zenk, No. 03CV854 (CBA), 2006 WL
2654985, at *4 (E.D.N.Y. Sept. 15, 2006) (unpublished) “denying summary
judgment to defendants where plaintiff asserted his repeated efforts to obtain
forms were fruitless”.
We therefore argue that the trial court erred in failing to deny the
Appellee’s Motion for Summary Judgment, and would humbly request that
Order Granting said Summary Judgment overturned.
Issue #9: Whether the lower tribunal erred in granting DefendantsMotion for Summary Judgment, by overlooking Plaintiff’s /Appellant’s
claims for violation of his Fifth and Fourteenth Amendment Rights?Eighth Amendment “Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments
inflicted.”To state a claim under 28 U.S.C. § 1983, a plaintiff must
allege facts tending to show that: (1) he has been deprived of a right
secured by the Constitution or federal law, and (2) the deprivation was
caused by a person or persons acting under color of state law. See
Flagg Bros., Inc. v. Brooks,436 U.S. 149, 155, 98 S.Ct. 1729, 56
L.Ed.2d 185 (1978). The United States Supreme Court has held that
where a private party has exercised powers that are "traditionally the
exclusive prerogative of the state," the private party may be considered
a state actor under § 1983. RendellBaker v. Kohn,457 U.S. 830, 842,
102 S.Ct. 2764, 73 L.Ed.2d 418 (1982). Concluding that the
maintenance of a prison system has "traditionally [been] the exclusive
prerogative of the state," courts have held that when a state contracts
with a private corporation to run its prisons, the private prison
employees become subject to § 1983 suits. See Skelton v. PriCor,
Inc.,963 F.2d 100, 102 (6th Cir.), cert. denied, 503 U.S. 989, 112
S.Ct. 1682, 118 L.Ed.2d 398 (1992); see also Lemoine v. New
Horizons Ranch & Ctr.,990 F.Supp. 498, 502 (N.D.Tex.1998) (private
employees of residential treatment center licensed by State of Texas
subject to § 1983 suits).
Again, as noted in our discussion of the Defendants’ instances
of blatant negligence, the Plaintiff/Appellant provided the appropriate
staff members of the halfway house with copies of all medical records
indicating the severity of his medical conditions and any doctor
recommendations concerning program requirements for manual labor
and work outside of the facility. During his residency at Dismas
House, the Plaintiff/Appellant was constantly terrorized, intimidated,
and humiliated without any regard for his medical conditions or his
dignity, in that he was forced to do cleaning jobs when in fact in
violation of his doctor’s orders, even going as far as to prevent his
medical treatment, adding insult to injury. Furthermore, he was not
provided meals that were diabetic friendly, and was given disciplinary
action for incident where is wife was delivering food as a result of him
not receiving addicaquate nutrition from the halfway house. When
asked, “who should have the last say on this matter, the doctor or the
federal prison'', Derek Thomas answered, “We have already had this
conversation. Here the Bureau of prison rules and not the doctor”.
In analyzing claims of Eighth Amendment violations, the courts
must look at discrete areas of basic human needs. As we have recently
held, " '(A)n institution's obligation under the eighth amendment is at
an end if it furnishes sentenced prisoners with adequate food, clothing,
shelter, sanitation, medical care, and personal safety.'" Wright v.
Rushen, 642 F.2d 1129, 113233 (9th Cir. 1981)(citation omitted). 682
F.2d at 124647.
Accordingly the Plaintiff/Appellant should be awarded summary
judgment.
Conclusion
The trial court misapplied the law and committed reversible errors by
Granting the Appellee’s Motion for Summary Judgment without addressing
the key factors addressed in the aforementioned brief. We humbly request
that Order Granting said Summary Judgment be overturned.
Certificate of Service
I HEREBY CERTIFY that a true and correct copy of the foregoing wasdelivered via U.S. Mail to the individuals and entities listed below on this_____ day of April 2013.
______________________________
SignatureTraian BujduveanuPro Se Plaintiff/Appellant5601 West Broward BoulevardPlantation, Florida 33317Phone: (954) 6637768
Dismas Charities, Inc.141 N.W. 1St AvenueDania, FL 330042835
Ana GispertDismas Charities, Inc.141 N.W. 1St AvenueDania, FL 330042835
Derek ThomasDismas Charities, Inc.141 N.W. 1St AvenueDania, FL 330042835
Lashanda AdamsDismas Charities, Inc.141 N.W. 1St AvenueDania, FL 330042835
David S. ChaietEsquireAttorney for Defendants4000 Hollywood BoulevardSuite 265South Hollywood, FL 33021