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IN THE UNITED STATES COURT OF APPEALS IN AND FOR THE

ELEVENTH CIRCUIT

Case No.: 13-11599-E

L.T. No.: 11-20120-CIV-SEITZ/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 FOR THE SOUTHERN DISTRICT OF FLORIDA

INITIAL BRIEF OF APPELLANT TRAIAN BUJDUVEANU

Traian Bujduveanu Pro Se Plaintiff/Appellant

5601 West Broward Boulevard

Plantation, Florida 33317

Phone: (954) 663-7768

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U.S. COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

CERTIFICATE OF INTERESTED PERSONS

AND CORPORATE DISCLOSURE STATEMENT

* Ajm -.

7/t/b/9rf &u3l>Urftf//U vs.lasho//<M /toA/is APPeaino 12>-/JS9?-<*1 lth Cir. R. 26.1 (enclosed) requires that a Certificate of Interested Persons and Corporate Disclosure Statement must be filed by the appellant with this court within 14 days after the date the appeal is docketed in this court, and must be included within the principal brief filed by any party, and included within any petition, answer, motion or response filed by any party. You may use this form to fulfill this requirement. In alphabetical order, with one name per line, please list the trial judge(s), and all attorneys, persons, associations of persons, firms, partnerships, or corporations that have an interest in the outcome of this case or appeal, including subsidiaries, conglomerates, affiliates and parent corporations, including any publicly held corporation that owns 10% or more of the party's stock, and other identifiable legal entities related to a party.
(please type or print legibly):

Aa/j s;Isseer bete* 7//W#<?

>/3rt/9s c/M*/7fest jtic-

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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. 4:06-cv-810 SNL, 2007 WL 172564, at *2 (E.D.

Mo. J Enigwe v. Zenk, No. 03-CV-854 (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.2d 955, 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, 103-04, 97 S.Ct. 285, 50 L.Ed.2d 251

(1976).

Lozano v. Smith,718 F.2d 756, 768 (5th Cir.1983).

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Wright v. Rushen, 642 F.2d 1129, 1132-33 (9th Cir. 1981)(citation omitted).
682 F.2d at 1246-47

Fox 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, 1156-57 (W.D.N.Y. 1975).

Inman v. State, 124 Ga. App. 190 (2) (183 SE2d413) (1971)\

Enigwe v. Zenk, No. 03-CV-854 (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.2d 185 (1978).

Rendell-Baker v. Kohn,457 U.S. 830, 842,102 S.Ct. 2764, 73 L.Ed.2d 418 (1982).

Skelton v. Pri-Cor, 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, 1132-33 (9th Cir. 1981)(citation omitted).
682 F.2d at 1246-47.

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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 non-profit corporation

501(c)(3) organization, who operates 28 halfway houses in 13 states that

contract from the U.S Government, of which Co-defendants 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 Plaintiff7Appellant did not receive a
hard copy, as there were none available.

5. The Plaintiff/Appellant provided the appropriate staff members copies

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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 programrequirements 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

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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 Plaintiff7Appellants 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 Greek-Orthodox 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 Plaintiff7Appellant's home confinement transfer, requiring the

Plaintiff7Appellant to report once a week to Dismas halfway house. 11. On October 13,2010, the PlaintiffAppellant drove his family

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vehicle to Dismas halfway house for his bi-weekly report.

12. An illegal search was conducted of the vehicle that

Plaintiff7Appellant drove and property was removed from the vehicle

without the knowledge ofthe 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 regardingthe

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.

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15. On October 20, 2010, at 6:30 A.M., while sleeping in his bed at Dismas House, the PlaintifFAppellant 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 ofUSPO 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.

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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 Plaintiffs Motion to Strike Document from the Docket (Docket Entry #40).

7. On August 5th, 2011 Appellant/Plaintiff, Traian Bujduveanu filed

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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, Plaintiffs 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

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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

Plaintiffs Motion for Summary Judgment, and entered a FINAL

JUDGMENT in favor of the Defendants against the Plaintiff (Docket

Entry#131andl32).

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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 563-67, 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

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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 (BP-S399.058) nor Transfer

Reciept (BP-821.051) were ever provided to the Plaintiff7Appellant, 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 (BP-S399.058) and

(BP-821.051), 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

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inmate. This has not taken place because charges or

investigations againstthe Plaintiff/Appellant, were never levied

by the Federal Bureau of Prisons. This was a gross Fabrication with a premeditated cover-up.

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 non-federal

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 Plaintiff7Appellant and the

court to question whether alleged minor violations of warrant

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such a drastic change in opinion, and moreover, whether this

change in opinion was done as matter of fact or simply to

remove PlaintifffAppellant 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 Plaintiff7Appellant. At this time the property of
the PlaintifE^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

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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 Plaintiff7Appellant'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 erredin failing to deny the Appellee's Motion for Summary Judgment, and would humbly request that
Order Granting said Summary Judgment overturned.

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Issue #2; Whether the lower tribunal erred in granting Defendants Motion for Summary Judgment, by overlooking Plaintiffs /Appellant's claims 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:
2. intent,

3. actual confinement in boundaries not of the plaintiffs

choosing,
4.
5.

a causal link, and

Awareness of the confinement.

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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 Plaintiff7Appellant 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 ofthe ... [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
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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 Defendants Motion for Summary Judgment, by overlooking Plaintiffs /Appellant's claims 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 BP-9, BP-10, 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

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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. 4:06-cv-810 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 BP-9 forms to Plaintiff7Appellant, 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 ofhis 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 in-house judiciary proceedings, when he faced the Federal

Bureau of Prisons prior to being sent back to prison, and currently in his
civil action against the Defendants. Enigwe v. Zenk, No. 03-CV-854 (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".

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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 Defendants Motion for Summary Judgment, by overlooking Plaintiffs /Appellant's
claims 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 ofjudicial 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 law1 institute the criminal proceedings against the plaintiff and thereby deprive him of rights secured

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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

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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 occurredand 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 BP-9 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,

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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 Plaintiff7Appellant the ability to show the how alleged
conduct deprived him of liberty, by a distortion and corruption of the
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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 Defendants Motion for Summary Judgment, by overlooking Plaintiffs /Appellant's claims 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 PlaintifFAppellant was

constantly terrorized, intimidated, and humiliated without any regard for his

medical conditions or his dignity, in that he was forced to do cleaningjobs

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

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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. 97,103-04, 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 104-06, 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)

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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
1129,1132-33 (9th Cir. 1981)(citation omitted). 682 F.2d at 1246-47."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.

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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 Defendants Motion for Summary Judgment, by overlooking Plaintiffs /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

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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 Defendants Motion for Summary Judgment, by overlooking Plaintiffs /AppeUant's claims 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."

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An illegal search was conducted ofthe 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 cellulartelephone 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. Plaintiff7Appellant 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).

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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, 1156-57 (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 SE2d413) (1971)). "[probationary status does not convert a probationer's family, relatives and friends into 'second class' citizens

These people are not stripped of theirright 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

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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 Defendants Motion for Summary Judgment, by overlooking Plaintiffs /Appellant's claims for violation of his Fifth and Fourteenth Amendment Rights?

5 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,

th

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, withoutjust 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

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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 Plaintifi7Appellant 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 ofUSPO and CCM Director,
Carlos Rodriguez, as he did not sign the papers for the incarceration, thus

making it clear thatthe Defendants engaged in a campaign of erasing

evidence and fabricating documents in order to coverup any suspicion ofthe

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.

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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 Greek-Orthodox 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 BP-9 forms to Plaintiff7Appellant, 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 everhave a legitimate opportunity
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to defend himself both in their nonexistent in-house judiciary proceedings,

when he faced the Federal Bureau of Prisons prior to being sent back to prison, and currently in his civil action against the Defendants. Again we,
bring the courts attention to Enigwe v. Zenk, No. 03-CV-854 (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 Defendants Motion for Summary Judgment, by overlooking Plaintiffs /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 plaintiffmust 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

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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. Rendell-Baker 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. Pri-Cor, 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 Plaintiff7Appellant 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 Plaintiff7Appellant was

constantly terrorized, intimidated, and humiliated without any regard for his

medical conditions or his dignity, in that he was forced to do cleaningjobs

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, *

Date Filed: 04/26/2013

Page: 38 of 40

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
1129,1132-33 (9th Cir. 1981)(citation omitted). 682 F.2d at 1246-47.

Accordingly the Plaintiff/Appellant should be awarded summary judgment.

Conclusion

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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

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I HEREBY CERTIFY that a true and correct copy of the foregoing was
delivered via U.S. Mail to the individuals and entities listed below on this

&2>

day of April 2013.

Signature

Traian Bujduveanu Pro Se Plaintifr7Appellant

5601 West Broward Boulevard

Plantation, Florida 33317

Phone: (954) 663-7768

Dismas Charities, Inc.
141 N.W.I St Avenue

Dania, FL 33004-2835

Ana Gispert
Dismas Charities, Inc.
141 N.W.I St Avenue

Dania, FL 33004-2835
Derek Thomas

Dismas Charities, Inc.

141 N.W.I St Avenue

Dania, FL 33004-2835
Lashanda Adams

Dismas Charities, Inc.

141 N.W.I St Avenue

Dania, FL 33004-2835

David S. Chaiet Esquire Attorney for Defendants 4000 Hollywood Boulevard

Suite 265-South

Hollywood, FL 33021

38