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Case 1:11-cv-20120-AMS Document 119 Entered on FLSD Docket 09/28/2012 Page 1 of 16

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 11-20120-CIV-SIMONTON TRAIAN BUJDUVEANU, Plaintiff, v. DISMAS CHARITIES, INC., ANA GISPERT, DEREK THOMAS, and LASHANDA ADAMS, Defendants. / ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT AND MOTIONS TO STRIKE PLAINTIFF’S SUR-REPLIES Presently pending before the Court is the Plaintiff’s Motion for Summary Judgment (DE ## 72, 73) and the Defendants’ Motion for Summary Judgment (DE # 83). The Motions are fully briefed (DE ## 87, 90, 91, 92). Also pending before this Court is the Defendants’ Motion to Strike Plaintiff’s Response to Defendants’ Reply Brief in Support of Defendants’ Motion for Final Summary Judgment (DE # 93). In addition, the Defendants have filed a Supplemental Motion for Summary Judgment (DE # 103). The Plaintiff has filed a Response to that Motion (DE # 111), the Defendants have filed a Reply (DE # 113), and the Plaintiff has filed a Sur-Reply (DE ## 114, 115). The Defendants have also filed a Motion to Strike Plaintiff’s Sur-Reply to the Supplemental Motion for Summary Judgment (DE # 116), to which the Plaintiff has responded (DE # 118). Pursuant to the consent of the Parties, this matter has been transferred to the undersigned Magistrate Judge by the Honorable Patricia A. Seitz, United States District Judge for all further proceedings (DE # 100). The undersigned has thoroughly reviewed the record and, for the reasons stated


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herein, denies the Plaintiff’s Motion for Summary Judgment, without prejudice, denies the Defendants’ Motion for Summary Judgment, as moot, denies the Defendants’ Motion to Strike Plaintiff’s Response to Defendants’ Reply Brief in Support of Defendants’ Motion for Final Summary Judgment (DE # 93) as moot, and denies the Defendants’ Motion to Strike Plaintiff’s Response to Defendants’ Reply Brief in Support of Defendants’ Supplemental Motion for Final Summary Judgment (DE # 116). I.

BACKGROUND

The action arises from a series of events which occurred while Plaintiff Traian Bujduveanu was completing the service of a thirty-five month sentence in a halfway house operated by Defendant Dismas House Charities, Inc. (“Dismas House” or “Dismas”).1 Specifically, the Plaintiff alleges that certain staff members at Dismas House violated his constitutional rights and committed several state law torts in improperly seizing his property, disciplining him, and ultimately having him removed from Dismas House and placed at the Federal Detention Center (“FDC”) in Miami, for the duration of his sentence. The Plaintiff initially filed this case as a Motion for Return of Property against Dismas Charities and Ana Gispert,2 claiming that a family car he had driven to Dismas Charities had been unlawfully searched, that a telephone and charger had been removed from it, and that Dismas Charities had unlawfully seized this and other personal property (DE # 1). As relief, he sought an order requiring Dismas Charities to return his property, generate an account of all property seized, and provide

The Plaintiff plead guilty to Conspiracy to violate the International Emergency Economic Powers Act, the Iranian transactions regulations and the Arms Export Control Act, in violation of 18 U.S.C. § 371. 1

Plaintiff initially spelled this Defendant’s name incorrectly as “Ginspert.” This misspelling was corrected in the Amended Complaint. 2

2


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any further relief the Court deemed appropriate (DE # 1 at 3). Thereafter, before serving either defendant, the Plaintiff filed an Amended Complaint, which added defendants Derek Thomas and Lashanda Adams (who is incorrectly identified in the Amended Complaint as Adams Leshota),3 which sought additional relief (DE # 14). In the First Amended Complaint, the Plaintiff alleged various causes of action which the Plaintiff divided into "Federal Theories of Recovery" and "State Law Theories of Recovery" (DE # 14). In particular, under the Federal Theories of Recovery, the Plaintiff listed the following causes of action: 1.

First Amendment, defining the right to freedom of expression;

2.

Fourth Amendment, defining the right to be free from unlawful seizure of

his property or person; 3.

Fifth and Fourteen (sic) Amendment, defining the rights to due process;

4.

Eight (sic) Amendment, defining the right to be free from cruel and unusual punishment.

(DE # 14 at 8). In addition, the Plaintiff listed the following causes of action under the State Law Theories of Recovery: 1.

False arrest and imprisonment;

2.

Assault and battery;

3.

Malicious prosecution;

4.

Abuse of process;

5.

Negligence, and

Defendant Lashanda Adams was originally referred to as “Adams Leshota” in the Plaintiff’s Amended Complaint (DE # 14); however, she has been referred to exclusively as Lashanda Adams in subsequent flings. 3

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6.

Gross negligence.

Id. The Defendants then filed a Motion to Dismiss seeking dismissal on various grounds (DE # 26). The Motions were fully briefed and referred to the undersigned (DE # 43). In addition, the Plaintiff and the Defendants each filed Motions for Summary Judgment, both of which were predicated upon the allegations and facts asserted in the Plaintiff’s First Amended Complaint. While the Motions for Summary Judgment were pending, the undersigned issued a Report and Recommendation recommending, inter alia, that the Defendants’ Motion to Dismiss be granted but that the Plaintiff be granted leave to Amend his Complaint with regard to certain causes of action (DE # 94). On March 16, 2012, the Honorable Patricia Seitz issued an Order affirming the Report and Recommendation on the Defendants’ Motion to Dismiss and granting the Plaintiff leave to amend his Complaint for a second time (DE # 98). Specifically, the Court dismissed with prejudice Plaintiff’s claims brought pursuant to the Double Jeopardy clause against all of the Defendants, the Bivens claim against Defendant Dismas Charities, and the Bivens and Eighth Amendment claims alleged against the individual Defendants.4 The Court advised the Plaintiff that an amended complaint would have to be filed no later than March 28, 2012, and directed the Defendants to file an answer to that complaint on or before April 4, 2012. In addition, the Court permitted the Parties to supplement their existing Motions for Summary Judgment to address any new issues raised in the Second Amended

Although the Plaintiff filed objections to the Report and Recommendation issued by the undersigned regarding the Defendants’ Motion to Dismiss, he did not object to the recommendation that his Bivens claim against Dismas Charities, and his Bivens and Eighth Amendment Claims against the individual Defendants be dismissed with prejudice (DE # 96). 4

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Complaint (DE # 72, 83). On March 28, 2012, the Plaintiff filed an Amended Complaint (“Second Amended Complaint”). In his Second Amended Complaint, the Plaintiff alleges Violations of his First Amendment Rights (Count I), Violations of his Fifth Amendment Rights (Count II), Violations of his Fourteenth Amendment Rights (Count III), Negligence and Gross Negligence (Count IV); Abuse of Process (Count V), and Malicious Prosecution (Count VI). The Defendants timely filed their Answer and Affirmative Defenses to the Second Amended Complaint (DE # 102). The Defendants thereafter filed their Supplemental Motion for Summary Judgment (DE # 103). The Plaintiff has filed a Response to that Supplemental Motion (DE # 111), Defendants have Replied (DE # 113), and the Plaintiff has filed a Sur-Reply (DE # 114). II.

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

As noted above, prior to filing the Second Amended Complaint, the Plaintiff filed a Motion for Summary Judgment predicated upon the claims raised in his First Amended Complaint, which is styled as a “Complaint for Damages” filed on March 29, 2011 (DE ## 72, 73, 75, 84, 85).5 In that Motion, the Plaintiff asserts that he is entitled to Summary Judgment on the following issues: 1.

Claim 1: Right to be free from unlawful seizure of property or person6 ;

The Plaintiff filed two separate Statement of Facts in support of his Motion for Summary Judgment (DE ## 74, 77). However, both of those filings were stricken by Judge Seitz for filing to properly cite to the record for support of the facts asserted in those filings (DE ## 76, 82). The Plaintiff subsequently filed two additional Statements of Material Facts (DE ## 84, 85). 5

Although in the Motion for Summary Judgment, the Plaintiff identifies certain causes of action as numbered claims, those numbers do not correspond to the manner in which the causes of action are set forth in the First Amended Complaint. 6

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2.

Claim 2: False arrest and imprisonment;

3.

Claim 3: Rights to due process;

4.

Claim 4: Malicious Prosecution;

5.

Claim 5: Right to be free from cruel and unusual punishment;

6.

Claim 6: Unlawful Discrimination based on Race, National Origin, Ethnic Groups and Ancestry, Reverse Discrimination under the color of state law, Discriminatory Harassment;

7.

Claim 7: Rights to Freedom of Expression;

8.

Claim 8: Intentional Infliction of Mental Distress and Abuse of Process;

9.

Claim 9: Negligence;

10.

Claim 10: Gross Negligence by failing to ascertain the medical condition of the Movant complaints of feeling ill.

(DE # 73 at 9-10). The Defendants filed a response to the Motion for Summary Judgment (DE # 87). In that response, the Defendants stated, inter alia, “In opposition to Plaintiff’s Motion for Summary Judgment, Defendants, to avoid redundancy, incorporate their Motion for Summary Judgment, Statement of Undisputed Facts and Affidavit of Ana Gispert.” (DE # 87 at 3). Thus, the Defendants’ opposition to the Motion relied upon the Motion for Summary Judgment that the Defendants filed on their own behalf in this matter.7 For the following reasons, the Plaintiff’s Motion for Summary Judgment is denied as moot, without prejudice to file a new Motion for Summary Judgment based upon the allegations raised in the Plaintiff’s Second Amended Complaint.

The Defendants have now filed a Supplemental Motion for Summary Judgment wherein they address the claims raised in the Plaintiff’s Second Amended Complaint. 7

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III.

LAW AND ANALYSIS A.

Plaintiff’s First Amended Complaint Was Rendered Moot by the Filing of the Second Amended Complaint

The granting of a Motion to Amend renders moot a parties' previous pleadings. See Malowney v. Federal Collection Deposit Group, 193 F.3d 1342, 1345 n. 1 (11th Cir. 1999) (noting that an amended complaint supersedes a previously filed complaint); Meterlogic, Inc. v. Copier Solutions, Inc., 185 F.Supp.2d 1292, 1297 (S.D.Fla. 2002) (noting that the plaintiff's filing of an amended complaint “rendered moot the parties' previous pleadings and the defendants' summary judgment and Daubert motion”). As stated above, pursuant to the Court’s March 16, 2012 Order, wherein the Plaintiff was granted leave to again amend his Complaint, the Plaintiff filed a Second Amended Complaint on March 28, 2012 (DE # 101). Thus, the Plaintiff’s First Amended Complaint (DE # 14) filed on March 29, 2011, was thereby mooted and the Second Amended Complaint is now the operative complaint in this action. B.

The Plaintiff’s Motion for Summary Judgment is Moot Due to the Filing of the Second Amended Complaint

As previously stated, the arguments advanced in the Plaintiff’s Motion for Summary Judgment are directed at the claims and facts alleged in the Plaintiff’s First Amended Complaint rather than those claims and facts alleged in the Second Amended Complaint. As such, for the following reasons, that Motion is due to be denied, without prejudice, as moot.8

The undersigned recognizes that the District Judge contemplated that the Motion for Summary Judgment would remain pending and survive the filing of the Second Amended Complaint. Based upon the following discussion, however, the undersigned has determined that to prevent a confusing record, a new motion must be filed. 8

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First, it is worth noting that the Plaintiff’s First Amended Complaint and Second Amended Complaint are entirely different in style and notably different in substance. While Plaintiff’s claims all generally arise from the incidents surrounding the Plaintiff’s cell phone and automobile usage while completing his sentence at Dismas Charities, as noted in the Defendants’ Reply in support of the Supplemental Motion for Summary Judgment the “gravamen of the [Second] Amended Complaint is that the Plaintiff is upset that he was transferred from Dismas back to the Federal Detention Center-Miami to complete the remainder of his sentence.” (DE # 113 at 9). This focus is significantly different than that put forth in the Motion for Return of Property (DE # 1) which initiated this action, and the Plaintiff’s First Amended Complaint which spent considerable time recounting the purported facts of the confiscation of the Plaintiff’s cellular telephone and search of his family’s vehicle by Dismas Charity staff members. (DE # 14 at ¶¶ 17-24, 40, 41, 43). Second, Claims 1 and 2 (Right to be free from unlawful seizure of property or person and False arrest and imprisonment) argued in the Plaintiff’s Motion for Summary Judgment are no longer at issue in this matter because the Plaintiff has not alleged violations of the Fourth Amendment and has not raised claims of False Arrest and Imprisonment in the Second Amended Complaint. Similarly, Claim 5 (Right to be free from cruel and unusual punishment) is no longer at issue because the Plaintiff’s Eighth Amendment claims for cruel and unusual punishment alleged in the First Amended Complaint were dismissed with prejudice, prior to the Plaintiff filing the Second Amended Complaint, and thus were not realleged in the Second Amended Complaint. Therefore, Claims I, 2 and 5 in the Plaintiff’s Motion for Summary Judgment are irrelevant to this action as it is currently plead, and thus are denied as moot. Further, the other claims argued in the Plaintiff’s Motion for Summary Judgment 8


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are not tailored to and do not sufficiently address the claims alleged in the Plaintiff’s Second Amended Complaint. By way of example, “Claim 3: Rights to Due Process” argued in the Plaintiff’s Motion for Summary Judgment, asserts that the Plaintiff’s Fifth, Eighth and Fourteenth Amendment rights were violated when he was given three violations, on different dates, for the same incident and was sent to prison without Due Process of Law (DE # 73 at 6). However, in the Second Amended Complaint, although the Plaintiff refers to the three violations in his General Allegations, the Plaintiff’s contentions contained in Count II of the Second Amended Complaint are specific, and center on his claim that his Fifth Amendment Rights were violated when he did not receive a hearing upon his return to the Federal Detention Center, that he was forced to serve an additional 81 days in federal incarceration and that he received punishment in direct violation of his doctor’s directives. Further, in the Second Amended Complaint, the Plaintiff contends that he was not afforded due process because the Defendants did not comply with the Bureau of Prison guidelines, an issue that is not addressed in the due process Claim 3 of the Plaintiff’s Motion for Summary Judgment. Similarly, as to the Plaintiff’s First Amendment claims related to his religion asserted in the Second Amended Complaint, notably, the First Amended Complaint did not mention the Plaintiff’s religion nor his request to attend religious services. In addition, although in the Plaintiff’s Motion for Summary Judgment, the Plaintiff asserts that the Defendants denied him the opportunity to attend services at an Orthodox Church, his sole argument on that point is that, contrary to the Defendants’ assertions, no Federal Guidelines existed that limited the distance that a resident could travel to attend religious services (DE # 73 at 3, 9). In contrast, in the Second Amended Complaint, the Plaintiff describes with particularity the requests he made to the 9


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Defendants and alleges that there is an exception to the geographical limitation of the distance that the church may be located from Dismas House (Count I, DE # 101 at 3, 4).9 Another example of the failure of the Plaintiff’s Motion for Summary Judgment to adequately address the claims at issue in this case, due to the filing of the Second Amended Complaint, may be found in Count IV of that Complaint, wherein the Plaintiff alleges that the Defendants committed Negligence and Gross Negligence by not providing the Plaintiff with diabetic-friendly meals in violation of the Department of Correction Policies (DE # 101 at 6). This allegation is absent from the First Amended Complaint and is not addressed in the Plaintiff’s Motion for Summary Judgment. Finally, in the Second Amended Complaint, the Plaintiff sets forth a litany of allegations related to the Defendants’ purported failure to follow procedures that are required when transferring a prisoner from one status to another. These specific allegations were not raised in the Plaintiff’s First Amended Complaint and are not addressed in any meaningful way in the Plaintiff’s Motion for Summary Judgment. Simply put, various allegations and claims made in the Plaintiff’s Second Amended Complaint that were not made in the Plaintiff’s First Amended Complaint have not been adequately addressed in the Plaintiff’s Motion for Summary Judgment. Thus, denying the Plaintiff’s Motion for Summary Judgment without prejudice as being moot is appropriate. See e.g. Pierce v. City of Miami, 176 Fed. Appx. 12, at *1 (11th Cir. 2006) (noting that trial court determined motions for summary judgment were rendered moot where court granted plaintiff’s motion to amend complaint over the defendants’

In their Answer to the Second Amended Complaint, the Defendants deny the assertions made by the Plaintiff regarding an exception to the geographical limitation (DE # 102 at 3). 9

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objections); Anderson v. Blake, 2012 WL 1565528, at *1 (M.D. Ga. April 30, 2012) (denying defendant’s motion for summary judgment as moot where plaintiff sought to file second amended complaint); Houston Casualty Co., v. International Grand Tours, Inc., 2008 WL 2705008, at *3 (N.D. Cal. July 9, 2008) (stating “Amending a complaint would ordinarily moot a motion for summary judgment noticed on the prior operative complaint.”) Moreover, while the undersigned is aware that courts construe pro se plaintiff’s filings liberally, the undersigned notes that the manner in which the Plaintiff’s Motion for Summary Judgment is structured is, at best, confusing, and, in reality, virtually impossible for the undersigned to address in a comprehensive, methodical manner particularly given the structure and substance of the Second Amended Complaint. Accordingly, given that the operative pleading is the Plaintiff’s Second Amended Complaint that was filed after the pending Motion for Summary Judgment, and that the Second Amended Complaint asserts different factual allegations as to the revised causes of action, the Plaintiff’s Motion for Summary Judgment is Denied as moot, without prejudice. The Plaintiff may file a renewed Motion for Summary Judgment on or before October 19, 2012. However, if the Plaintiff elects to do so, the Motion must correspond to the causes of action raised in the Second Amended Complaint filed on March 28, 2012 (DE # 101), and specifically identify each count of the Second Amended Complaint upon which the Plaintiff seeks summary judgment. Of course, the Plaintiff is not required to seek summary judgment as to each claim; but he must specifically address each claim upon which he seeks summary judgment. The Motion must also include specific references to the record or evidence in the record which support the Plaintiff’s request for summary judgment. See e.g., Law v. Stewart, 2010 WL 2998515 (W.D. Mich. July 23, 2010) (stating, after denying defendants’ motion for summary 11


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judgment as moot where the plaintiff filed an amended complaint after the motions for summary judgment had been pending for months, that it would be no great task for the defendant to file a new motion explicitly addressing the amended complaint). On or before November 5, 2012, the Defendants may file a response to the Plaintiff’s Motion for Summary Judgment directed to the claims in the Second Amended Complaint. On or before November 15, 2012, the Plaintiff may file a Reply. IV.

DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

As stated above, prior to the Court issuing its Order granting the Plaintiff leave to file a second amended complaint and prior to the undersigned issuing a Report and Recommendation on the Defendant’s Motion to Dismiss the First Amended Complaint, the Defendants filed a Motion for Summary Judgment directed to the Plaintiff’s First Amended Complaint, which is currently pending before this Court (DE # 83). The Defendant has also filed a Supplemental Motion for Summary Judgment which is directed to the Plaintiff’s Second Amended Complaint (DE # 103).10 Although the Supplemental Motion for Summary Judgment incorporates several of the Defendants’ prior filings including the earlier filed Motion for Summary Judgment directed at the Plaintiff’s First Amended Complaint, the Supplemental Motion independently fully sets forth the basis for the Defendants’ request for summary judgment directed at the Second Amended Complaint.11 In other words, there are no arguments advanced in the

The Defendants note that they would have filed a Motion to Dismiss the Second Amended Complaint but were directed by the Court’s March 16, 2012 Order to file an Answer. 10

The Supplemental Motion for Summary Judgment also incorporates the Defendants’ Motion to Strike the Plaintiff’s Pleading for Failure to Appear for Deposition, Prior Response to the Motions for Summary Judgment, Statement of Undisputed Facts and Orders of the Court. (See DE # 103 at 1 incorporating DE ## 78, 83, 83-1, 83-2, 88-1, 11

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Defendants’ First Motion for Summary Judgment that are not similarly advanced in the Supplemental Motion for Summary Judgment, although the arguments advanced in the latter are appropriately tailored to the operative complaint, which as discussed above, is the Plaintiff’s Second Amended Complaint. Further, many of the arguments raised in the Defendants’ initial Motion for Summary Judgment, e.g. Fourth and Eighth Amendment arguments, are no longer applicable to this action because the Plaintiff’s Second Amended Complaint omitted certain causes of action that had been alleged in the First Amended Complaint. Similarly, the Defendants’ first Motion for Summary Judgment references specific paragraphs in the Plaintiff’s First Amended Complaint, which again is no longer the operative Complaint. Accordingly, for the sake of clarity, as well as, judicial efficiency, the Defendants’ First Motion for Summary Judgment (DE # 83) is denied, as moot, and the undersigned instead will rule on the Supplemental Motion for Summary Judgment (DE # 103). See Carroll-Brufsky v. E.W. Scripps Co., 2012 WL 1676766 *1 (M.D. Fla. May 14, 2012) (denying defendant’s motion to dismiss/motion for summary judgment as moot after granting pro se plaintiff leave to amend complaint in the interests of efficiency). However, the undersigned is aware that the Affidavit of Ana Gispert which was submitted in support of the Defendants’ original Motion for Summary Judgment (DE # 83-2), was not refiled with the Supplemental Motion for Summary Judgment. Thus, to the extent that Ms. Gispert’s Affidavit is relied upon by the Defendants in the Supplemental Motion for Summary Judgment, the Affidavit will be considered by the

91, 94, 98). 13


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undersigned in ruling on the Supplemental Motion for Summary Judgment.12 Along these same lines, the undersigned will consider all of the evidence in the record whether filed with the original Motion for Summary Judgment or the Supplemental Motion for Summary Judgment filed by either the Plaintiff or the Defendants in resolving the Motions for Summary Judgment directed to the Plaintiff’s Second Amended Complaint. In accordance with Rule 56.1 of the Local Rules for the Southern District of Florida and Fed. R. Civ. P. 56 (c)(1)(A), however, the Parties must include citations in their motions and memoranda, which direct the Court to the evidence in the record they wish the Court to consider. V.

DEFENDANTS’ MOTION TO STRIKE PLAINTIFFS’ SUR-REPLY TO DEFENDANTS’ MOTION FOR FINAL SUMMARY JUDGMENT

The Defendants have also filed a Motion to Strike Plaintiffs’ Response to Defendants’ Reply Brief in Support of Defendants’ Motion for Final Summary Judgment (DE # 93). The Defendants contend that the Plaintiff’s Sur-Reply to the Motion for Summary Judgment should be stricken because the Plaintiff failed to seek leave from the Court before filing a Sur-Reply and is not entitled to submit a Sur-Reply under the applicable rules of Civil Procedure and the Local Rules. However, because the undersigned has denied the Defendants’ initial Motion for Summary Judgment as moot, the Defendants’ Motion related to the Sur-Reply filed in response to that Motion is also moot.

The Statement of Undisputed Facts in Support of Defendants’ Motion for Summary Judgment (DE # 83-1) was reproduced in nearly identical format in the Defendants’ Reply to the Supplemental Motion for Summary Judgment (DE # 113). Thus, the Court relies upon the statement of facts set forth in the Supplemental Reply, rather than the statement of facts submitted with the initial Motion for Summary Judgment. 12

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VI.

DEFENDANTS’ MOTION TO STRIKE PLAINTIFFS’ SUR-REPLY TO DEFENDANTS’ SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT

The Defendants have also filed a Motion to Strike to Plaintiff’s Sur-Reply to the Defendants’ Supplemental Motion for Summary Judgment (DE # 116). The Defendants again contend that the Plaintiff’s Sur-Reply (DE ## 114, 115) is improper under the Federal Rules of Civil Procedure and Rule 7.1 (c) of the Local Rules of Civil Procedure. In addition, the Defendants contend that the Sur-Reply filings by the Plaintiff do not raise any new issues for the Court to consider but instead are simply an attempt by the Plaintiff to further burden the Court with repetitive and irrelevant arguments. In Response, the Plaintiff contends that the Sur-Reply filings point to additional documents in this case that “bring[ ] some of the truth of this case to the surface.” (DE # 118 at 2). Given the Plaintiff’s pro se status and the fact that the Defendants set forth a complete recitation of a Statement of Undisputed Facts in the Reply brief to their Supplemental Motion for Summary Judgment (DE # 113), the undersigned finds that it is is appropriate to permit the Plaintiff’s Sur-Reply filings (DE ## 114, 115) to stand. Accordingly, the Defendants’ Motion to Strike Plaintiff’s Response to Defendants’ Reply Brief in Support of Defendants’ Supplemental Motion for Final Summary Judgment (DE # 116) is denied. The Defendants, may, however, file an additional response to the Plaintiff’s Sur-Reply, on or before November 5, 2012, if they so elect. The Plaintiff shall not file a response to that filing. VII.

CONCLUSION

Therefore, for the reasons stated above, and upon a review of the record as a whole, it is hereby ORDERED AND ADJUDGED that the Plaintiff’s Motion for Summary Judgment

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(DE # 72) is DENIED without prejudice. On or before October 19, 2012, the Plaintiff may refile his Motion for Summary Judgment consistent with the directives set forth above in this Order. On or before November 5, 2012, the Defendants may file a response to the Plaintiff’s Motion for Summary Judgment directed to the claims in the Second Amended Complaint. On or before November 15, 2012, the Plaintiff may file a Reply. It is further ORDERED AND ADJUDGED that the Defendants’ Motion for Summary Judgment (DE # 83) is DENIED as Moot. It is further ORDERED AND ADJUDGED that the Defendants’ Motion to Strike Plaintiff’s Response to Defendants’ Reply Brief in Support of Defendants’ Motion for Final Summary Judgment (DE # 93) is DENIED as moot. It is further ORDERED AND ADJUDGED that the Defendants’ Motion to Strike Plaintiff’s Response to Defendants’ Reply Brief in Support of Defendants’ Supplemental Motion for Summary Judgment (DE # 116) is DENIED. On or before November 5, 2012, the Defendants may file an additional response to the Plaintiff’s Sur-Reply, if the Defendants so elect. The Plaintiff shall not file an additional response to that filing. DONE AND ORDERED in chambers, in Miami, Florida, on September 28, 2012.

______________________________________ ANDREA M. SIMONTON U.S. MAGISTRATE JUDGE Copies furnished via CM/ECF to: Counsel of Record and pro se Plaintiff

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