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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA CASE NO.: 11-20120-CIV-SEITZ/SIMONTON

TRAIAN BUJDUVEANU, Plaintiff, vs. DISMAS CHARITIES, INC., ANA GISPERT, DEREK THOMAS and LASHANDA ADAMS Defendants. _________________________________________/ Plaintiff’s Objections to the Report and Recommendation Re: Defendants’ Motion to Dismiss Plaintiff Traian Bujduveanu provides this response containing a list of objections to the Honorable Judge Andrea M. Simonton’s report and recommendations re: Defendants’ Motion to Dismiss, and asserts the following: I.

Standard for Evaluating a motion to Dismiss I agree that Fed.R.Civ.P. 8(a)(2) requires that a pleading "shall contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." This is because "[t]he purpose of a modern complaint is 'to give opposing parties fair notice of the basis of the claim against them so that they may respond to the complaint, and to apprise the court of sufficient allegations to allow it to conclude, if the allegations are proved, that the claimant has a legal right to relief.' " Monument Builders v. American Cemetery Ass'n, 891 F.2d 1473, 1480 (10th Cir.1989), cert. denied, 110 S.Ct. 2168 1


(1990) (quoting in part Perington Wholesale, Inc. v. Burger King Corp., 631 F.2d 1369, 1371 (10th Cir.1979)); see also Conley v. Gibson, 355 U.S. 41, 47 (1957). Furthermore, the judge goes on to make the case that, “recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” This statement in addition to others propounded by the Judge regarding the lack of material facts in the Plaintiff’s initial pleadings leads the Plaintiff to question whether Judge Simonton actually read the entire record and all the documents submitted, rather than the just the Plaintiff’s initial filings. I acknowledge that my initial filings were not the most articulate, and in compliance with every single rule of civil procedure, as this has been a learning process for me. However, Defendant Anna Gispert’s admission of not having provided BP-9 forms to Movant, provides the Movant 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 Movant very little material documentation of his experiences at the halfway house. However, it was their intention all along to deny the Movant 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. I understand that the judicial process is hindered by the lack of documented facts that prove the assertions made by the plaintiffs, yet I ask that you not fall into the trap that the Defendants have set when they denied my ability to document my grievances. Even if I was given the opportunity to make sure that my initial pleadings were in compliance with the Federal Rules of Civil procedures rules 8a, the fact of the matter, is that the Defendant’s conspiracy to cover up their wrong doings by fabricating

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the record and denying me my constitutional right to address and document my grievances, leaves me with very little means of providing material documentation of my experiences at Dismas House Charities. My accusations should not be seen as “wildly implausible” because my initial complaint and pleadings were my first opportunity to present my grievances, without a means of making reference to supporting documentation, i.e. BP-9 forms, testimony by fellow inmates, and in addition the record or any proceedings which took place. Essentially, I ask that the court does not view my lack of fact as being “wildly implausible allegations in a pro se complaint that should be considered untrue,” however it should be seen as the Defendant’s attempt of clouding the court’s judgment by preventing the Plaintiff the ability to provide sufficient proof of his claims. II.

Legal Analysis

a. The Fourth Amendment The Defendants attempt to make the case that as a condition of the Plaintiff’s parole that he consented to “searches of his person and vehicle”. However, the Plaintiff made it clear to individuals at Dismas House that he was simply operating a family vehicle, to fulfill his required reporting requirements. Although the individuals in the halfway house had, right to search his person upon entering the building, the Supreme Court has found that, his family members have a protected interest against their property being subject to searched and seizure. "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 3


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). I have acknowledged that, 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)), "probationary 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 or property may be searched "so that the legal interests of innocent third persons can be adequately protected. . . Moreover, the judge makes the case that because Adams was not directly involved in the search that she should not be held liable. The named defendants although may not have been the ones that conducted the search and seizure of the vehicle and property, were in a position to return the property when finding out that they were not searching the plaintiff’s personal property, and thus didn’t get the necessary permission to search and seize his family’s property. In this case respondeat superior takes effect in that Adams, Thomas, and Gispert are directly responsible for the actions of their employees, and they are should be even more liable for choosing to cover up their actions rather than addressing these actions and acting within the confines of the law. b. First Amendment Retaliation Claim

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Judge Simonton attempts to argue that the plaintiff fails to state a claim for retaliation under the First Amendment. This seems similar to the Defendant’s claim when they noted that, “he (the movant) fails to provide any proper evidence demonstrating that he asked to attend religious services outside a five mile radius and that his request was denied”. On 7/29/2010 the Movant made a request to Lashonda Adams, in which he requested, and was denied the ability to attend a Romanian Orthodox Church located on State Road 7, in Pembroke Pines, to which Ms. Adams replied that you are only allowed to travel within five miles of the facility for religious services. In fact, the Movant made, 2 other documented requests on 8/4/2010 and on 10/6/2010, all of which were denied by Ms. Adams. All parties including the defendants are aware of the special exception to the (5) mile rule which states that, “an exception to the rule will only be made when your stated denomination of worship cannot be located within five miles of the program”. c.

Cruel and Unusual Punishment under Eight Amendment

The Magistrate errors in her assumption that the Plaintiff’s claim for cruel and unusual punishment centers merely around the confiscation of his property, but goes much deeper and in fact, would be seen as egregious in many third world countries with less respect for human rights and civil liberties. 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. When analyzing whether Dismas charities violated their obligation to respect the Plaintiff’s eight amendment rights they went 5


beyond a confiscation of his property, simply taunting, and submission to menial activities. Looking back at the some of our previous discussions of Negligence in previous pleadings, it is clear that although the defendants attempt to paint themselves as caring and compassionate, going as far to point out that they made the recommendation that the Movant not participate in any manual activities. However, Ana Gispert, is on record as stating that she believes that “dusting qualifies”, thus giving him a directive to perform manual labor. After days and days of harassment in Ms. Gispert’s absence, the Movant sent an email an email within this Dismas Charities internal system indicating, “… pain and discomfort in my liver”. Yet again, in a letter dated 10/19/2010, the plaintiff wrote, “this letter is to advise you that today, 10/19/2010, 10:50 A.M., I was called to the front desk and told that I should vacuum the room for him, in an attempt to intimidate me.” He goes on to state that, “… as a result of all actions against me, for the last week, by Mr. Thomas and his staff, my liver has swollen and I do experience pain”. If forcing an individual that Defendants had previously had made the case to the Bureau of Prisons to not participate in any manual labor, to dust and vacuum then is not a clear case of cruel and unusual punishment, and thus a violation of the duty to provide adequate medical care and personal safety, there is no justice in the world. Even with the Defendants admitting to the fact that they were aware of his medical conditions, the Defendants have refused to address the Plaintiff’s claim that he was not provided meals that were diabetic friendly, and was given disciplinary action for an incident where is wife was delivering food as a result of him not receiving adequate nutritional from the halfway house, something that they are required by law to do. This violates Department of Correction 6


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. The Movant’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). d. Fifth Amendment Due Process Claim Let’s take a moment to address the Magistrates erroneous claim that Plaintiff fails to set forth any facts demonstrating a false imprisonment or arrest by any specific Defendant. As stated in Movant’s previous brief, it was the direct and indirect actions of the Defendant which lead to the confinement of the Movant. 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. In all of the Reponses and briefs from the Defendants, they claim that that the Movant was charged introducing contraband to the facility, when in fact he was charged with a violation 108, which specifically, “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

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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. Now, why would the Defendants’ increase the charges against the plaintiff such that they are more severe? The answer to that question is simple. A violation 108 would have required the Plaintiff’s removal from the facility back to federal prison, whereas if he was charged appropriately, in-house sanctions would have sufficed. Going back to the case law and arguments asserted in our previous response, 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). Thus, our claim is clear, the Defendants did not place the Plaintiff in handcuffs, they did however provided false and misleading statements to the Bureau of Prisons such that their ability to levy justice was impaired and the Plaintiff was denied the privilege of the freedoms that come with having completed a prison sentence and being afforded community monitoring in a halfway house facility.

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Which leads us to address the Defendants’ second contention, the Plaintiff was under the misguided impression that he was a “free man” during his time at Dismas. At no point did the Movant see himself as a free man during his time at Dismas, and the Movant operating an automobile while under the assumption that he was authorized to do so does not justify the Defendants’ claim. Let’s not mix apples with oranges, contrary to the Defendants’ statements, the Movant was not a federal prisoner confined to a federal facility, and thus could not be rearrested, he was a federal inmate afforded the privilege of dwelling in a halfway house and home confinement due to his health. As we made clear in our previous brief, the courts on the other hand have seen being on parole or in halfway house as being more than just a privilege. The Court has found protected liberty interests after an inmate is released from institutional confinement. In Morrissey v. Brewer, 408 U.S. 471 (1972), the Court recognized a parolee's liberty interest in remaining conditionally free on parole: "[H]e can be gainfully employed and is free to be with family and friends and to form the other enduring attachments of normal life. . . . [H]is condition is very different from that of confinement in a prison." Id. at 482. Relying on Morrissey, the Court in Young v. Harper, 520 U.S. 143 (1997), held that an inmate enrolled in Oklahoma's pre-parole program also had a protected liberty interest entitling him to due process before he could be removed from the program. There the pre-parolee "was released from prison before the expiration of his sentence. He kept his own residence; he sought, obtained, and maintained a job; and he lived a life generally free of the incidents of imprisonment." By virtue of the Defendants’ willful disregard for Movants right to this privilege, the plaintiff suffered damages and opportunity cost, for

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not being able to live not as free man, but as a man who has earned the privilege of being free of correctional institutional confinement. e. Double Jeopardy Yet again, the Magistrate makes the claim that the Plaintiff’s double jeopardy claims should be dismissed with prejudice as the Plaintiff is unable to state a cause of action under this clause. Her justification for this assertion is United States v. Mayes, 158 F 3d 1215 (11th Cir. 1998), in which the court examined a case in which prisoners cause over $3 million in property damage during a prison riot and were subsequently punished as part of the system as well as in criminal proceedings for the same offense. However, The sanctions against the appellants in this case were imposed pursuant to 28 C.F.R. §§ 541.10-541.20 (1993). These regulations authorize "institution authorities to impose discipline on those inmates whose behavior is not in compliance with Bureau of Prisons rules." 28 C.F.R. § 541.10(a). Section 541.13 delineates the various types of prohibited acts and groups them into categories based upon the seriousness of the infraction. See 28 C.F.R. § 541.13, Table 3. The "Disciplinary Severity Scale" then describes the types of authorized sanctions that officials have discretion to impose based upon the category into which the prohibited act falls. See 28 C.F.R. § 541.13, Tables 3-6. The regulations also set forth detailed procedural guidelines that institutional staff must follow when bringing disciplinary action against an inmate. See 28 C.F.R. §§ 541.14541.19. It is obvious that the judges makes the error using a case that involves direct criminal conduct to justify her argument, in a case that does not involve direct criminal conduct. Thus it is clear that she should find a case in which an inmate was punished for committing a violation of bureau of prisons terms and rules and then is subsequently 10


punished in a criminal proceeding, which is impossible, as such a case does not exist as the idea of someone being sent back to prison for such a minor violation is ludicrous.

f. False Arrest and Imprisonment. As stated in Movant’s previous brief, it was the direct and indirect actions of the Defendant which lead to the confinement of the Movant. 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. In all of the Reponses and briefs from the Defendants, they claim that that the Movant was charged introducing contraband to the facility, when in fact he was charged with a violation 108, which specifically, “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. Now, why would the Defendants’ increase the charges against the plaintiff such that they are more severe? The answer to that question is simple. A violation 108 would have required the Plaintiff’s removal from the facility back to federal prison, whereas if he was charged appropriately, in-house sanctions would have sufficed.

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Going back to the case law and arguments asserted in our previous response, 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). Thus, our claim is clear, the Defendants did not place the Plaintiff in handcuffs, they did however provided false and misleading statements to the Bureau of Prisons such that their ability to levy justice was impaired and the Plaintiff was denied the privilege of the freedoms that come with having completed a prison sentence and being afforded community monitoring in a halfway house facility. The judge makes another fundamental error when she likens, “the Plaintiffs residence at Dismas Charities is considered the functional equivalent of incarceration, he cannot establish a liberty interest in remaining there (p. 47)”. As we argued in our previous briefs, the courts on the other hand have seen being on parole or in halfway house as being more than just a privilege. The Court has found protected liberty interests after an inmate is released from institutional confinement. In Morrissey v. Brewer, 408 U.S. 471 (1972), the Court recognized a parolee's liberty interest in remaining conditionally free on parole: "[H]e can be gainfully employed and is free to be with family and friends and to form the other enduring attachments of normal life. . . . [H]is condition is very different 12


from that of confinement in a prison." Id. at 482. Relying on Morrissey, the Court in Young v. Harper, 520 U.S. 143 (1997), held that an inmate enrolled in Oklahoma's preparole program also had a protected liberty interest entitling him to due process before he could be removed from the program. There the pre-parolee "was released from prison before the expiration of his sentence. He kept his own residence; he sought, obtained, and maintained a job; and he lived a life generally free of the incidents of imprisonment." By virtue of the Defendants’ willful disregard for Movants right to this privilege, the plaintiff suffered damages and opportunity cost, for not being able to live not as free man, but as a man who has earned the privilege of being free of correctional institutional confinement. There is nothing legal or permissible about trumping up charges such that they cause an outcome that suited the Defendants’ inherent disgust and dislike for Movant, in that there are documented cases of State Attorneys that have been convicted of criminal charges for padding files with false charges and arrests.

g. Assault and Battery.

The Magistate again argues that there is no way that the plaintiff can make a claim for assault and battery as there is no statements of fact against a particular defendant. I agree for the simple fact that, “no such record of the assaults and battery that took place as the Defendant’s refused to provide the Movant with and means of documenting said actions.” Anna Gispert’s admission of not having provided BP-9 forms to Movant, provides the Movant 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 Movant very little material documentation of his

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experiences at the halfway house, which was the intention of the Defendants’ all along, essentially concealing and covering up their misconduct. As we argued previously the courts have made it clear that, in Allen v. Mc Morris, No. 4:06-cv-810 SNL, 2007 WL 172564, at *2 (E.D. Mo. Jan. 19, 2007) “holding allegation that prisoner could not get grievance policy or forms barred summary judgment for defendants”, and because of this Court has an obligation to deny the Defendant’s request for Dismissal, and the Movant should be awarded summary judgment.

h. Malicious Prosecution The fact of the matter is that “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).

The Plaintiff was not guilty of introducing hazardous materials into a correctional facility, as his cell phone was simply contraband, and not something that could be used to escape, or harm the welfare of those in the facility. Moreover, this cellphone was contraband for individuals staying at Dismas facilities, and were not contraband for an individual on home confinement. Furthermore, the cell phone in his vehicle, might in the case of drug possession constitute material possession, however given the fact that he was 14


not attempting to introduce it into the facility on his person, and was in fact in the glove compartment of his vehicle unbeknownst to the Movant does not constitute actual or material possession. The plaintiff was under the assumption that he was able to drive, and his ignorance of the process does not take away from his guilt, but him operating a motor vehicle is not the reason that he was taken back to prison, as that would have been something addressed in-house through Dismas correctional procedures, but rather it was the charge having introduced hazardous material that constituted his denial of his parole. Given the fact that the Defendants’ were searching for any reason to have Movant’s parole revoked, due to their personal hatred for Plaintiff and what he stood for, acting under the color of the law, Defendants intentionally mis-indicted Plaintiff, thus constituting the Movant’s claim for malicious prosecution, and consequently depriving him of rights secured under the Constitution, as he had served his debt to society in prison confinement thus earning him the privilege of parole.

The Defendants want the Movant to address all the individual elements of malicious prosecution because they are aware their actions denied the Movant the ability to show how alleged conduct deprived him of liberty, by a distortion and corruption of the processes of law, i.e., falsification of evidence, mischarging him with violations that where much greater than his actions, and other egregious conduct namely the denial of documents necessary to ensuring due process, resulting ultimately in the denial and revocation of his parole, and it is for this reason that Movant should be awarded summary judgment, and the Defendant’s motion to dismiss should be denied.

i. Abuse of Process

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Both the Defendants and the Magistrate make the claim that for Plaintiff to support a cause of action for abuse of process, “the Plaintiff must prove that the process was used for an immediate purpose other than which it was designed”. These processes and procedures put in place by the Department of Corrections where not put into place to deny the Plaintiff’s rights and privileges, and the Movant further asserts that these procedures and processes were not put into place to cover up the Defendants’ willful misconduct and misdoings. The Defendants are basically asserting that because their fabrication of documents, untruthful statements, and padded files achieves the purpose of punishing the defendant, that it is justified. The fact of the matter is that an abuse of process occurs when there, “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” (Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)).

This is what has occurred in the case of

the Plaintiff, and the Movant is so sure of assertion, that he challenges the Defendants to produce documents that are in Sentry entered and stamped with the proper signatures and dates. The Plaintiff and the Defendants both know that that these forms do not exist as they would have been documented as evidence of compliance with due process and lawful arrest by the Defendants. Again, all that has been provided are fabricated documents, and Plaintiff has in his previous response statement provided exhibits of instances in which employees admonishing others to fabricate documents. If the Movant’s claims to this end are, “unsubstantiated and self-serving” as the Defendants assert in their most recent response brief, then the Defendants should have no trouble providing evidence of said documents being entered into the Sentry system that are

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compliance with guidelines from the National Archives and Records Administration and the CCM, rather than the documents they have provided that are wrought with the Defendants’ mistakes and inaccuracies as a result of their haste to cover up their misdeeds.

j. Negligence and Gross Negligence The Magistrate argues that, “although the Plaintiff has stated why he believes the Defendants were negligent, he has not stated how any of the Defendants breached a duty they owed to him or that any of their breaches were the cause of his damages, nor has he stated what damages resulted from any breach of their duty. However, the Plaintiff made sure that a complete rundown of his medical condition was provided to the defendants, and it was for that reason that they recommended initial an home confinement, in light of his doctors recommendation against any sort of manual labor.

However, Ana Gispert,

has been placed on record as giving him directives go against doctors orders when she stated that, that she believes that “dusting qualifies”, thus giving him a directive to perform manual labor. After days and days of harassment in Ms. Gispert’s absence, the Movant sent an email an email within this Dismas Charities internal system indicating, “… pain and discomfort in my liver”. Yet again, in a letter dated 10/19/2010, the plaintiff wrote, “this letter is to advise you that today, 10/19/2010, 10:50 A.M., I was called to the front desk and told that I should vacuum the room for him, in an attempt to intimidate me.” He goes on to state that, “… as a result of all actions against me, for the last week, by Mr. Thomas and his staff, my liver has swollen and I do experience pain”. The Movant went on to request a BP-9 form in the same letter, and did so 5 times within

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the correspondences within the Exhibit B, in addition to countless verbal request for these forms. It is clear that from just the internal correspondences alone, that the Defendants breached their duty, and their denial of the BP-9 form was only an attempt to prevent any further documentation of the violations of breach of duty and the obvious damages that resulted from the harassment, forced manual labor, that exacerbated the Movant’s medical condition, of which the Defendants aware of the damage being cause, as evident in Mrs. Gispert’s promise to address the issue with Mr. Thomas. Therefore, the Defendants’ argument that plaintiff’s motion for summary judgment is, “devoid of any proper facts supporting any negligence, claims of forced manual labor, constantly terrorized and intimidated, and permitted to accept meals from his wife”, is yet another diversion from the truth as proof of the negligent acts on the part of the defendant, and the direct and proximate damages that resulted to the plaintiff are documented in Dismas Charities own internal messaging system. In the Plaintiff’s previous response to Defendants’ motion for summary judgment he asserted 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). III.

Conclusion 18


Therefore, for the reasons stated above, we ask that you review the entire record and not just the Plaintiff’s initial pleadings, and deny the Defendant’s request for dismissal, and concurrently make a recommendation for Summary Judgment in favor of the Plaintiff. If not then, the Plaintiff should be given an order to file an amended complaint such that we are able to fix our violations with Federal Rules of Civil Procedure rule 8 and 10.

Date: February 20th, 2012 Respectfully Submitted,

______________________________ TRAIAN BUJDUVEANU, PRO SE LITIGANT

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Doc.96  

Honorable Judge Andrea M. Simonton’s report and recommendations re: Defendants’ Motion to Dismiss Cemetery Ass'n, 891 F.2d 1473, 1480 (10th...

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