united states court of appeals

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


TRAIAN BUJDUVEANU,







IN THE UNITED STATES COURT OF APPEALS IN AND FOR THEELEVENTH CIRCUIT

Case No.: 1311599E


TRAIAN BUJDUVEANU,







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

http://www.google.com/url?q=http%3A%2F%2Fwww.lawskills.com%2Fcase%2Fga%2Fid%2F613%2F49%2Findex.html&sa=D&sntz=1&usg=AFQjCNGnoF8FDuPggPBPxGiLbT1PRRp-oQ

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

http://www.google.com/url?q=http%3A%2F%2Fen.wikipedia.org%2Fwiki%2FTort&sa=D&sntz=1&usg=AFQjCNH200r9-oOc2sfWVpoULB-Nz2vtIw

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)




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”.




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.




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.




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.




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. . . ."




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”.




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