Plaintiff's reply in brief in response to defendant's response brief and in support of the...

IN TH E UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF FLOD AFILED by ' D.C.

J'AN 8 2212

STEVEN .M LARIMORECLERK .U S DIST CTs. D. of FLA. - MIAMI

CA SE N0.: 1 I-ZOIZO-CIV-SEITZ/SlM ONTON

TRAIAN BUJDUVEAN U,

Plaintiff,

VS.

DlsM As CHARITIE ,s lxc ,. ANA GISPER ,T

DEREK Tilom s and LASHANDA ADAM S

Defendants.

PLAINTIFF'S REPLY BRIEF IN RESPONSE TO DEFENDANT'S RESPONSE BRIEF

AND IN SUPPORT OF THE PLAINTIFF'S M OTION FOR SUM M ARY JUDGEM ENT

Plaintiff Traian Bejduveanu (Pro Se Litigant), hereafter known as çtMovanf', files thisresponse to the Defendant's Reply Brietl in Support of the Plaintiff's Motion for SummaryJudgm ent and states as follows:

Introduction

Defendant Dismas Charities, lnc., a non-protit corporation 501(c)(3) organization, whooperates 28 halfway houses in 13 states that contracts 9om the U .S. Govem m ent, of which Co-

defendants Ana Gisperq Derek Tomas and Lashanda Adams are employees of Dismas Charities,

lnc., entered into the docket on 1/12/2012 a brief in response to the M ovant's response brief, in

which they m ade an ttattem pt'' to assert that the M ovant, is unable to state a basis for his claim s,

whether of a constitutional or tortious nature. The Defendants' response brief was simply that,

an ttattempf', as they failed to address and/or rebut the core elements of the Plaintiff's

arguments, and more importantly their arguments are devoid of the tnzth, and facttzal statements

indicating that the Defendants' actions were in complete compliance with guidelines set forth

both by the Department of Corrections as well as M ovant's protections inherent within the

Constimtion. This response to the Defendant's reply brief, will again rebut the Defendant's

arguments, and will add additional clarity to the contentions originally made in the Movant's

Complaint, M otion for Summary Judgment to the Court, and his response brief to the Defendants

response brief.

Case 1:11-cv-20120-PAS Document 92 Entered on FLSD Docket 01/18/2012 Page 1 of 35

Factual Backeround

On July, 28, 2010, with the approval of CCM Director Carlos Rodriguez the Movant was

transfer from Colman Low Correctional Facility to Dismas Charities, Inc. halfway house, located

in Dania, Florida. As is noted above, Defendant Dismas Charities, lnc., is non-proft com oration

501(c)(3) organization, who operates 28 halfway houses in 13 states that contract f'rom the U.SGovemment, of which Co-defendants Ana Gispert, Derek Tomas and Lashanda Adams are

employees of Dismas Charities Incom oration.

Upon arrival at Dism as Charities facility, the M ovant sir ed received a packet containing

the Dismas Halfway House Regulations, but did not receive a Dismas Charities Handbook, as

there were none available at the time of his arrival. It is important to note that the Dismas

Halfway House Regulations book is not the same as Handbook and does not contain the same

information as it is only a cursory overview of the policies and procedures contained within the

handbook, and the handbook docketed as evidence has been modified since the Movants second

arrest and lawsuit. The M ovant provided the appropriate staff m embers with copies of his driver

license, driving history from the Division of M otor Vehicles in Tallahassee, vehicle regiskation,

and valid insm ance, in compliance with the terms and conditions necessary to obtain pennission

to operate a motor vehicle during supervision. Be that as it may, the reason for which the

Movant was not approved to drive, as contended by the Defendants, is unknown even today. lt

was for this reason that the Plaintiff did not feel as though he was violating the terms of his

continement when on October 13, 2010, the M ovant drove his fam ily vehicle to Dismas halfway

house for his bi-weekly report.

An illegal search was conducted of the vehicle that M ovant drove and property was

removed from the vehicle without the knowledge of the Movant and without the M ovant 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 evidencefrom the surveillance cameras that contained information regarding the illegal search and seizure

were intentionally destroyed.

During his residency at Dism as House, the M ovant 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 which were in direct violation of his doctor's directivesdoctor's orders, even going as far as to prevent his m edical treatment

, adding insult to injury. lnviolation of his Title V11 protections, the M ovant was discriminated and harassed constantly

, bythe Defendants, because he was a foreigner, spoke with an accent, practiced Greek-orthodoxReligion, and is white.

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

movant was arrested by two U.S. Marshall agents and transported to F.D .C. Miami, without anycharges levied against him and without Ilue Process of Law . The incarceration was donewithout the knowledge of USPO and CCM Director, Carlos Rodriguez

, as he did not si> thepapers 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 Movant is aware that the following documents have been fabricated (Movant's Exhibit,Documents #38, 41, 53, 58, 60, 61, 66). No federal employee of F.D.C. wanted to get involvedwith his case, they were aware of the covert and illegal actions of the Defendant. Federal

Department of Corrections M iami Counselor Price and Unit M anager Harrison, under the strict

suggestions of the F.D.C. warden, attempted in a few instances to contact the office of CCMDirector, Carlos Rodriguez, to no avail. The M ovant was ultim ately released from F.D .C. M iam i

on January 03, 201 1.

Direct Response to Defendant's Arzuments and Citation to Authoritv

The Plaintiff cannot m aintain any cause of action against any Defendant.

a. False Arrest and Im prisonm ent

The Defendants' in their response brief make three erroneous assertions about the

plaintiff with regards to his argum ents on false arrest and imprisonment:

ttplaintiff fails to set forth any facts demonstrating a false imprisonment or arrest by

any specitic Defendant'' (p. 3 of Defendants' response briet).2. tThe Plaintiff was under the misguided impression that he was a tGfree man'' during

his time at Dismas'' (p. 3 of Defendants' response brieg.çç-rhird, the Defendants did not arrest or imprison the Plaintiff' (p. 3 of Defendants'

response blief).

Let's take a m om ent to address the Defendants' first and third erroneous claim s that

Plaintiff fails to set forth any facts demonstrating a false imprisonment or arrest by anyspecific Defendant, and that the Defendants did not arrest or imprison the Plaintiff. A s

stated in M ovant's previous brief, it was the direct and indirect actions of the Defendant

which lead to the continem ent of the M ovant. Causation is, of colzrse, a required elem ent of

a false imprisonment. See Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992). Aprobation/ parole ofticer need not actually use force to detain a probation/parolee illegally.Although false imprisonment usually follows false arrest, false im prisonment m ay takeplace even after a valid arrest. ln a11 of the Reponses and briefs from the Defendants, they

claim that that the M ovant was charged introducing contraband to the facility, when in fact

he was charged with a violation 108, which specitically, ttpossession, M anufacm re, or

introduction of a hazardous tool (Tools most likely to be used in an escape or escapeattempt or to serve as a weapon capable of doing of doing serious bodily harm to others; or

those hazardous to institutional security or personal safet/', 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 instimtional safety. At best this alleged violation should have been charged as a

Code 305, ççpossession of anything not authorized for retention or receipt by the inm ate, notissued 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 w as charged appropriately, in-house sanctions would have sufficed.

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Going back to the case 1aw and arguments asserted in our previous response, a police officer

may be held to have iiinitiated'' 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. ln such cases, çtan

intelligent exercise of the ... (prosecutor'sq discretion becomes impossible,'' and aprosecution based on the false information is deemed ççprocured by the person giving the

false information.'' However, a private citizen may be held liable for false arrest under j1983 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, otlr claim is clear, the Defendants did not place the Plaintiff inhandcuffs, they did however provided false and misleading statements to the Bureau of

Prisons such that their ability to levyjustice was impaired and the Plaintiff was denied theprivilege of the freedoms that come with having completed a prison sentence and beingafforded community m onitoring in a halfway house facility.

W hich leads us to address the Defendants' second contention, the Plaintiff was

under the misguided im pression that he was a %Gfree man'' during his tim e at Dismas. At

no point did the M ovant see himself as a free man dlzring his time at Dismas, and the

M ovant 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 tothe Defendants' statements, the M ovant was not a federal prisoner contined to a federal

facility, and thus could not be rearrested, he was a federal inm ate afforded the privilegeof dwelling in a halfway house and hom e continement due to his health. As we m ade

clear in our previous brietl the courts on the other hand have seen being on parole or inhalfway house as being more than just a privilege. The Court has found protected libertyinterests after an inm ate is released from institutional confinement. ln M onissey v.

Brewer, 408 U.S. 471 (1972), the Court recor ized a parolee's liberty interest inremaining conditionally free on parole: ''(H1e can be gainfully employed and is 9ee to bewith fam ily and friends and to form the other enduring attachm ents of norm al life. . . .

(H)is condition is very different from that of confinement in a prison.'' 1d. at 482. Relyingon Morrissey, the Court in Young v. Harper, 520 U.S. 143 (1997), held that an inmateenrolled 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 ofthe incidents of imprisonment.'' By virtue of the Defendants' willful disregard for

M ovants right to this privilege, the plaintiff suffered damages and opportunity cost, fornot being able to live not as free m an, but as a man who has earned the privilege of being

free of correctional institutional confinem ent.

The Defendants' argument that, Steven if any of the Defendants could arrest or

imprison the Plaintiff, a privilege exist as a matter of 1aw to engage in reckless or even

outrageous conduct if there is sufficient evidence that shows the Defendant did no more

than assert legal rights in a permissible way.'' There is nothing legal or permissible about

trumping up charges such that they cause an outcome that suited the Defendants' inherentdisgust and dislike for M ovant, in that there are documented cases of State Attorneys that

have been convicted of criminal charges for padding files with false charges and arrests.

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In this case the Defendants are no different and it is for this reason that M ovant should be

awarded summaryjudgment.

b. Assault and Battery

The Defendants' again deviate from the truth when they claim that M ovant argued

that the Plaintiff's made an assertion that, çtNot providing a BP-9 and BP-IO form

constitutes an assault and battery'' (p. 4 Defendants brief response). The Defendants' areagain attempting to convolute the issue by m isstating the facts, in that we simply agreed

with the Defendant's assertion in their motion for summaryjudgment that Plaintiff hasnot provided any facts to support allegations of assault and battery. The M ovant's

statem ent was not an equation of assault and battery with the denial of these form s, but

rather to make the case that, ttno such record of the assaults and battery that took place as

the Defendant's refused to provide the M ovant with and m eans of docum enting said

actions.'' Anna Gispert's admission of not having provided BP-9 form s to M ovant,

provides the M ovant no means of documenting the abuses of process, abuses of

Constimtional rights and civil liberties on the part of the Defendants, and even goes to theextent of providing the M ovant very little material docllmentation of his experiences at

the halfway house, which was the intention of the Defendants' a11 along, essentially

concealing and covering up their misconduct. As we argued previously the courts havem ade it clear that, in Allen v. M c M orris, No. 4:06-cv-8l0 SNL, 2007 W L 172564, at *2

(E.D. Mo. Jan. 19, 2007) ttholding allegation that prisoner could not get grievance policyor forms barred summary judgment for defendants'', and because of this Court has anobligation to deny the Defendant's request for summaryjudgment, and the Movantshould be awarded summary judgment.

M alicious Prosecution

Even w ith the M ovant's eloquent and cogent rebuttal of the Defendants' claim

that the M ovant has not, and cannot establish the elem ents of malicious prosecution,

especially the key elements of the commencement of judicial proceeding on the plaintiff,by the defendant and termination of the in favor of the Plaintiftl that the Defendants mustbe awarded summaryjudgment. The fact of the matter is that çW11 federal claims formalicious prosecution are borrowed from the common 1aw tort ... (whichl imposesliability on a private person who institutes criminal proceedings against an innocent

person without probable cause for an improper purpose. The federal claim under (42U.S.C.) section 1983 for malicious prosecution differs from the state civil suit in that itrequires 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. M oreover, 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,

m ight in the case of drug possession constitute material possession, however given

5


the fact that he was 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 acttzal 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 Dismascorrectional procedures, but rather it was the charge having inkoduced hazardous

material that constituted his denial of his parole. Given the fact that the Defendants'

were searching for any reason to have M ovant's parole revoked, due to their personalhatred for Plaintiff and what he stood for, acting under the color of the law,

Defendants intentionally mis-indicted Plaintiff, thus constimting the Movant's claim

for malicious prosecution, and consequently depriving him of rights sectlred tmder the

Constitution, as he had served his debt to society in prison confinem ent thus earning

him the privilege of parole.

The Defendants want the Movant to address a11 the individual elements ofmalicious prosecution because they are aware their actions denied the M ovant the

ability to show how alleged conduct deprived him of liberty, by a distortion and

com zption of the processes of law, i.e., falsitication of evidence, mischarging him

with violations that where much greater than his actions, and other eregious conductnamely 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 summaryjudgment.

d. Abuse of Process

The Defendants make the claim that for Plaintiff to support a cause of action for

abuse of process, ttthe Plaintiff must prove that the pxocess was used for an immediate

purpose other than which it was designed'' (p. 6 Defendants' response brieg. Theseprocesses and procedures put in place by the Department of Corrections where not put

into place to deny the Plaintiffs rights and privileges, and the M ovant further asserts that

these procedttres and processes were not put into place to cover up the Defendants'

willful misconduct and misdoings. The Defendants are basically asserting that becausetheir fabrication of documents, untruthful statements, and padded tiles achieves the

pumose of punishing the defendant, that it is justitied. The fact of the matter is that anabuse of process occurs when there, tçis a cause of action in to14 arising from one party

making a malicious and deliberate misuse or perversion of regularly issued court process

(civil or criminal) notjustitied by the underlying legal action'' (W olff v. McDonnell, 418U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)). This is what has occurred in the caseof the Plaintiff, and the M ovant is so sure of assertion, that he challenges the Defendants

to produce docum ents that are in Sentry entered and stam ped 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 andlawful arrest by the Defendants. Again, a11 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


M ovant's claims to this end are, Eçtmsubstantiated 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 arecompliance with guidelines 9om 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. Accordingly, the Movant should be awarded summaryjudgment.

e. Negligence and Gross Negligence

The Defendants claim that the Plaintiff fails to m aintain a cause of action for

negligence or gross negligence because the Plaintiff cannot show a duty owed by the

Defendants that was breached, or dam ages that tlowed from any alleged breach of

duty. I'he Defendants even go as far as painting themselves are caring and

compassionate claim ing that they m ade the recomm endation that the M ovant not

participate in any manual activities. However, in on page 3 of Exhibit A to this

response points out an instance in which Ana Gispert, that she believes that ttdusting

qualifies'', thus giving him a directive to perlbrm manual labor. After days and days

of harassm ent in M s. Gispert's absence, the M ovant sent an em ail an email within this

Dismas Charities internal system indicating, tt. .. pain and discom fort in my liver''

(Exhibit A, p. 4 to this response). Yet again, in a letter dated 10/19/2010, the plaintiffwrote, ttthis letter is to advise you that today, 10/19/2010, 10:50 A.M ., 1 was called to

the front desk and told that 1 should vacuum the room for him, in an attempt to

intimidate me.'' He goes on to state that, t:.. . as a result of a11 actions against m e, for

the last week, by M r. Thomas and his staff, m y liver has swollen and 1 do experience

pain'' (Exhibit B, p. 4, to this response). The Movant went on to request a BP-9 formin the same letter, and did so 5 times within the correspondences within the Exhibit B,

in addition to countless verbal request for these fonns. lt is clear that from just theintemal correspondences alone, that the Defendants breached their duty, and their

denial of the BP-9 form was only an attempt to prevent any further docum entation of

the violations of breach of duty and the obvious damages that resulted from the

harassment, forced manual labor, that exacerbated the M ovant's medical condition, of

which the Defendants aware of the damage being cause, as evident in M rs. Gispert's

promise to address the issue with Mr. n omas (Exhibit A, p. 4, to this response).

Therefore, the Defendants' argument that plaintiff s motion for summaryjudgment is,ççdevoid of any proper facts supporting any negligence, claims of forced manual labor,

constantly terrorized and intimidated, and permitted to accept meals form 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 (Defendant's

response, p. 7). In the Plaintiff's previous response to Defendants' motion for

summaryjudgment he asserted that, a prison ofticial violates a prisoner's EighthAmendment rights, and is deem ed 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 onlyunnecessary and wanton intliction 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 tmder j 1983, anindividual must be personally involved in the deprivation of a person's constimtional

rights. See Lozano v. Smith,718 F.2d 756, 768 (5th Cir.l983), and for these reasonsthe Movant request that the court grant his motion for summary judgment beawarded.

2. The Complaint fails to allege any tortious conduct or violations of Federal Law

or the Constitution.

a. First Am endm ent

The Defendant makes the claim in his previous response brief that, tihe (themovant) fails to provide any proper evidence demonstrating that he asked to attendreligious services outside a five mile radius and that his request was denied'' (p. 8,Defendants response brieg. Yet again we are forced to address yet another departuref'rom the tnzth on the pm't of the Defendants. On 7/29/2010 the M ovant made a request toLashonda Adams, in which he requested, and was denied the ability to attend a Romanian

Orthodox Chtlrch located on State Road 7, in Pembroke Pines, to which M s. Adams

replied that you are only allowed to travel within five miles of the facility for religious

services (Exhibit C, p 1 to this response). In fact, the Movant made, 2 other documentedrequest on 8/4/2010 and on 10/6/2010, a11 of which were denied by Ms. Adams (ExhibitC, pp 2-3, to this response). A11 parties including the defendants are aware of the specialexception to the (5) mile rule which states that, tian exception to the rule will only bemade when your stated denomination of worship cannot be located within five miles of

the program''. (Exhibit 4 to the Plaintiff response for summaryjudgment). Yet againbecause Defendants were convinced that they had covered up their violation of thePlaintiff s first Amendment right by denying him a BP-9 form, they felt convinced that

making a statement so far from the tnzth such as, ççhe (the movant) fails to provide anyproper evidence dem onstrating that he asked to attend religious services outside a tive

mile radius and that his request was denied'', but they failed to remember that their own

intemal system contained the evidence that M ovant would use to validate his claim forviolation of his first amendm ent right to freedom of religion, and accordingly, the

Movant should be awarded summary judgment.

Fourth Am endm ent-

The Defendants attempt to make the case that as a condition of the Plaintiff'sparole that he consented to <çsearches of his person and vehicle''. However, the Plaintiff

made it clear to individuals at Dismas House that he was simply operating a fnmily

vehicle, to 11511 his required reporting requirements. Although the individuals in thehalfway 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 awarrantless search by proof of voltmtary consent, it is not limited to proof that consentwas given by the defendant, but may show that the perm ission to search was obtained

from a third party who possessed common authority over or other suftkient relationship

to the premises or effects sought to be inspected.' United States v. M atlock, 415 U. S.

164, 171 (1974). ln the Movant's previous response to the Defendant's motion forsummaryjudgment the Movant acknowledged that, while a probationer's right of privacymay be justifiably diminished during the period of probation (see Inman v. State, 124 Ga.App. 190 (2) (183 SE2d 413) (1971)), ''mobationary status does not convert aprobationer's family, relatives and friends into 'second class' citizens. . . . These peopleare not stripped of their right of privacy because they may be living with a probationer or

(sjhe may be living with them.'' State v. Fogarty, supra at 151. The Supreme Court ofM ontana, the only court in the country to address the ramitkations 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 residenceor property may be searched ''so that the legal interests of innocent third persons can beadequately protected. . . .'' Given this fact, the Movant should be awarded summary

judgment.

c. Fifth and Fourteenth Am endments

The Defendants m ake the claim that the Plaintiff received proper notice of hisviolation, and was provided a hearing upon his rettzrn to Federal Detention Center in

M iami. However, the M ovant wants to make it clear that he never had a hearing with

anyone, neither at Dismas Charities, nor with any judicial body at the Bureau of Prisons.The incarceration w as done without the knowledge of U SPO 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 ermsing and fabricating documents in order to cover

up any suspicion of the events. The M ovant in addition to sanctions levied upon him bythe halfway house, he was forced to service an additional 81 days in federal incarceration.

Exhibit D to this motion contains the intemal (pp1-2, exhibit D) contain the documentswhich indicate that both Dismas Charities punished with 3 weeks of extra duty, novisitors for 3 weeks, and no weekend passes, yet the Defendants have the nerve to claim

that they had no part in punishing the M ovant, and more importantly the alleged

document which the Plaintiff is convinced is a fabrication by the defendants to cover up

their illegal acts, (pp 3-4, Exhibit D to this response) was a document that Plaintiff hadnot even seen or been aw are existed until long after he was released and began the

process of discovery for this lawsuit. M ost likely because the document did not existuntil after he was released from the Federal facility, which calls into question the

Defendants' claim that Plaintiff was afforded proper due process, and for these reasons,

the Movant should be awarded summaryjudgment.

d. Eighth Am endm ent

The Defendants explicitly state in their response brief that, çûthe Plaintiff fails to

set forth any cruel or unusual punishment'' and they go on to joke tongue in cheek that,

9


çf ertainly the Plaintiff who is still serving a prison sentence cannot complain that being

deprived a meal from his wife is cruel and unusual as inmates are not permitted home

cooked meals'' (Defendants'' response, p 9). In analyzing claims of Eighth Amendmentviolations, the courts must look at discrete areas of basic htlman needs. As we have

recently held, '' '(A)n institution's obligation under the eighth amendment is at an end if itfumishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medical

care, and personal safety.''' Wright v. Rushen, 642 F.2d 1 129, 1 132-33 (9th Cir.lg8lltcitation omitted). 682 F.2d at 1246-47. When analyzing whether Dismas charitiesviolated their obligation to respect the Plaintitr s eight am endment rights, it is clear that

the issue is no longer a laughing m atter.

Looking back at the M ovant's discussion of the Defendant's Negligence, 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

M ovant not participate in any m anual activities. However, in on page 3 of Exhibit A to

this response points out an instance in which Ana Gispert, that she believes that ttdusting

qualifies'', thus giving him a directive to perform manual labor. ARer days and days ofharassment in M s. Gispert's absence, the M ovant sent an email an email within this

Dismas Charities internal system indicating, Gt. .. pain and discomfort in my liver''

(Exhibit A, p. 4 to this response). Yet again, in a letter dated 10/19/2010, the plaintiffwrote, tçthis letter is to advise you that today, 10/19/2010, 10250 A.M ., 1 was called to the

front desk and told that I should vacuum the room for him, in an attempt to intimidate

m e.'' He goes on to state that, <t. . . as a result of a11 actions against m e, for the last week,

by Mr. Thomas and his staft my liver has swollen and 1 do experience pain'' (Exhibit B,p. 4, to this response). lf forcing an individual that Defendants had previously had madethe case to the B'ureau of Prisons to not participate in any manual labor, to dust andvacuum then is not a clear case of cruel and unusual punishm ent, and thus a violation of

the duty to provide adequate medical care and personal safety, there is no justice in theworld.

The Defendants in an attempt to cover their violations of his constitm ional rights,

attempt to paint him as a spoiled man that simply was looking for a home cooked meal

from his wife. Even with them admitting to the fact that they were aware of his medicalconditions, 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 Policies in which, it is mandated that each institution'sfood service program offers nutritionally balanced, appetizing meals. Special Food and

Meals, 28 C.F.R. j 547.20 and Program Statement 4700.05, Food Services Manual,provide that medical diets be available to inmates who require such diets. The M ovant's

research has found however that, a prison oftkial 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. Gamb1e,429 U.S. 97, 103-04, 97 S.Ct.

285, 50 L.Ed.2d 25l (1976), and accordingly the Movant's motion for summaryjudgment should be granted.

10


3. The Plaintiff has failed to appear for depositions, Defendants' designated facts

should be taken as established for purposes of this M otion for Sum m ary

Judgment, as the Defendants claim and Plaintifrs pleadings should be stricken.

On Decem ber 06, 201 1 the Defendants filed a M otion to Dismiss Action for

Failtzre to Appear at Deposition (Document #78). The Movant acknowledges that theDefendant's cotmsel attempted to schedule depositions on the following occasions;

October 10, 20l 1, November l 1, 201 1, and December 5, 201 1 (Composite Exhibit 1 toDefendants motion). The Movant again further acknowledges that he tmderstands theimportance of said depositions for the public's interest in expeditious resolution of

litigation, the court's need to manage its dockets. lt is as a result of this understanding

that the M ovant m ade every attempt to communicate via emails between the M ovant and

the Defendant's counsel as to his inability to make attend the depositions due to hisdocumented and court docketed illnesses. Furthermore, as evident in the back and forth

email correspondences, the Defendant's counsel made no request for current medical

documents to justify the Movant's assertion that he was unable to attend, which theM ovant would have been glad to provide, such that said documentation would result in

either a rescheduling of the M ovant's deposition to a time that he was physically able to

appear for his deposition, or such that other arrangements for deposing the M ovant could

be reasonably made i.e.) via telephone or close circuit television. It is not clear as towhy the Defendant's counsel would question the M ovant's health as he was originally

released from the Defendant's Halfway House to home confinement due to several

medical conditions, namely being diagnosed with Hepatitis C infection, Cirrhosis of theliver, diabetes, chronic fatigue, depression, thrombocytopenia, ascites, 1ow platelet count,

an possible liver cancer indicated by elevated alpha-fetoprotein levels shown in blood test

and M R1 results. Given the fact that the only subsequent changes to the M ovant's health

condition has been ones in which his health has ftzrther deteriorated, and that the M ovantbelieved in good faith that the Defendant's and their counsel were aware of these

circumstances, and furtherm ore that Defendant's cotmsel did not request any updated

medical records 9om the Movant indicating a change in his current medical condition, he

did not provide further proof of his conditions as it was not requested or warranted underthe circum stances. The Defendant's counsel in his motion asserts that because the

M ovant was able to appear at mediation, prepared his M otion for Summary Judgment,Statement of Facts, Revised Statem ents of Facts, and the previous response to the

Defendants Motion for Summary Judgment, M ovant should have been able to make it to

the scheduled depositions; however this assertion does not take into consideration that for

the for the last seven months, the Ascites the M ovant has been battling has caused his

physicians to give him a 50/50 chance of surviving his scheduled surgery, which has beenrescheduled due to his exacerbated medical condition, and the fact that he has used what

little rem aining energy he had remaining to prepare his motions and court documents.

(See Composite Exhibit 2 to this motion). Since, The Defendants did not respond orrebut the Plaintiff's arguments citation of Civil Procedure, and moreover they did not

raise any new arguments to this effect, the M ovant reasserts the following key factors

with respect to the Federal nzles of Civil Procedure and the remedies that the Defendantshad at their disposal:

11


Federal Rulets) of Civil Procedtlre 30(b)(4) deals with the administration of a depositionwhen a party is physically unable to attend a scheduled deposition it provides additional

avenues for obtaining the information that achieves both the Defendant's need forinformation in regards to the discovery and the M ovant's physical ability to comply:

GçBy Remote Means. The parties may stipulate--or the court may on motion

order- that a deposition be taken by telephone or other remote means. For the

pumose of this nzle and Rules 28(a), 37(a) (2), and 37(b) (1), the deposition takesplace where the deponent answers the questions.''

This however would have required a court order, which the Defendant's counsel was

unwilling to acquire. Subdivision (@# (43. ln order to facilitate less expensive procedures,provision is made for the recording of testimony by other than stenopaphic means- c.g.,

by mechanical, eleckonic, or photopaphic means. Because these methods give rise to

problem s of accuracy and trustworthiness, the party taking the deposition is required to

apply for a court order. The order is to specify how the testimony is to be recorded,

preserved, and filed, and it may contain whatever additional safeguards the court deemsnecessary. W hich leads the M ovant to question whether the Defendant truly questioned

the M ovant's health condition, or whether this was sim ply a subversive tactic to avoid the

court addressing Movant's Petition for Summary Judgment as they were fearful of

strength of the M ovant's case.

3. Rule 37(d) authorizes the district court to require an attorney ''to pay the reasonableexpenses, including attorneys' fees, caused by the failure'' of its client to appear at a

deposition, ''unless the court tinds that the failure was substantiallyjustified or that othercircumstances make an award of expenses unjust.'' Under Rule 37(b)(2), which hms thesame language as Rule 37(d), the blzrden of showing substantial justitication and specialcircumstances is on the party being sanctioned. FalstaffBrewing Corp. v. M iller Brewing

Co., 702 F.2d 770, 784 (9th Cir.1983). We thus apply the same burden of proof for Rule37(d). Since, Movant is the one here in the case facing sanctions, the btlrden of proof forproving that substantialjustification for sanctions falls on the Defendants and theircounsel, and although the Defendant's counsel has proven himself to be an expert in the

area of law, his ability to make material statements of facts towards the Movant's medical

condition and ability to make it to depositions is in question.

The courts have also found in Hyde & Drath v. Kenneth R. Baker that:

ttW e cannot conclude that each of the appellant comorations was substantially

justitied in failing to attend the depositions. Only K'ung's failure to appear wassubstantiallyjustitied. Although we have declined to reach the merits of theargum ent that K'ung was excused from attending the depositions for health

reasons, we do decide that K'ung had, at the least, a good faith dispute concem ingthe question of whether he was obligated to appear in light of his serious illness.

He was therefore substantially justified in failing to appear at the deposition. Id.(In fact he subsequently died of brain cancer). However, as discussed above, noneof the other com orations have a good faith dispute concerning their failttres to

appear. Except for K'ung, Hyde & Drath has failed to show that its clients were

substantiallyjustified in violating the court's discovery orders. (Hyde and Drath v.Kenneth R. Baker, et al (24 F.3d l 162:.'9

5. lf the Defendant's counsel was tnlly convinced that the M ovant was avoiding their

request for discovery via deposition, they could have exercised their rights under Federal

12


Rule of Civil Procedure 45(b)(c)(d) andtg and tiled a Subpoena for Deposition, in whichthe court would issue a Command to Attend a Deposition. This would be done in an

c#èr/ to (c,)(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorneyresponsible for issuing and serving a subpoena must take reasonable steps to avoid

imposing undue burden or expense on a person subject to the subpoena. The issuing courtmust enforce this duty and impose an appropriate sanction- which may include lost

enrnings and reasonable attorney's fees--on a party or attomey who fails to comply. In

following the nlles of civil procedure, the court would issue and order for contempt inwhich the issuing court m ay hold in contempt a person who, having been served, fails

without adequate excuse to obey the subpoena.6. Given the fact that Defendant's counsel knows that they would not have m et the burden

of proof requiring the court to issue a subpoena for the M ovant to appear in light of the

critical nature of his health condition, they chose instead to circumvent this process, and

use other avenues of achieving this means to their ends, thus robbing the court of itspower to com pel compliance with the rules of civil procedlzre.

A district court has wide discretion to establish the time and place of depositions. ln re

Standard Metals Com., 817 F.2d 625, 628 (10th Cir.1987), cert. dismissed, 488 U.S. 881,109 S.Ctd. 201, 102 L.Ed.2d 171 (1988). Here, the special master explained that it wasnecessary for the Hong Kong depositions to take place in San Francisco so that the court

could oversee the proceedings since appellants had disregarded the previous depositionorder. He also noted that appellants had done business and filed suit in the Northern

Diskict of Califom ia and should therefore expect to have to appear there. These facts are

sufficient to establish that there was no abuse of discretion in ordering the depositions to

occur in San Francisco.8. Before a diskict court dismisses a complaint, it must weigh the five factors prescribed in

W anderer v. Johnston, 910 F.2d 652, 656 (9th Cir.1990). Then, the district court mustfind that a party's behavior in ignoring the depositions demonskated willfulness, bad

faith, or fault. Felstad v. American Honda Motor Co., 762 F.2d 1334, 1341 (9thCir.1985).

9. Finally, the tifth factor requires the district court to consider altemate, less severe,

sanctions before ordering dismissal. To determine whether the district court fulfilled this

obligation, the reviewing court examines whether the court (1) explicitly discussed thefeasibility of less dmstic sanctions and explained why alternative sanctions would be

inappropriate, (2) implemented altemative sanctions before ordering dismissal, and (3)wam ed the party of the possibility of dismissal before acm ally ordering it. Adriana, 913F.2d at 1412- 13. But, ''explicit discussion of alternatives is unnecessary if the district

court actually tries altematives before employing the ultimate sanction of dismissal.''

M alone, 833 F.2d at 132.

Accordingly the Movant should be awarded summaryjudgment.

Conclusion

W HEREFORE, taking into consideration the aforementioned prem ises, and the

Defendants' inability to provide honest, persuasive arguments to support their claims, the

Movant respectfully requests the Court to awarded summary judgment in his favor.

13


tllDate: January 16 , 2012

Respectfully Subm itted,

A e ,/ /&# Jm gq

TRAIAN BUJDUVEANU, PRO SE LITIGANT

14


*

CERTIFICATE OF SERVICE

h b certify that on or about JANUARY 16tb 2012 a true and correct copy of thel ere y ,

foregoing document was served upon the following via the United States PostalService, First Class M ail:

Dism as Charities, Inc.,

141 N.W . 1 St Avenue

Dania, FL 33004-2835

Ana Gispert

Dismas Charitieszlnc.

141 N.W . 1 St. Avenue

Dania, FL 33004-2835

Derek Thom as

Dismas Charities,lnc.

141 N.W . 1 St Avenue

Dania, FL 33004-2835

Lashanda Adam s

Dismas Charities,lnc.

141 N.W . 1 St. Avenue

Dania ,FL 33004-2835

David S. ChaietEsquire

Attorney for Defendants

4000 Hollywood BoulevardSuite 265-South

Hollywood, FL 33021

EXECUTED ON THIS 16th DAY OF JANUARY, 2012

.M /

/K /& zz z > /41TRAIAN BUJDUVEA U, PRO SE5601 W . BROW ARD BLVD.,

PLANTATION, FL 33317


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cAsE NoTEs Staff gispert, ana

CLIENT INFO Client Bujduveanu, TraianCLIENT STAY INFo Number 3869

coslwc'rs Requested 10/17/2010 8:31 AMCLIENT TAsKs Date

DISCHARGE Status Completed

DRIVING INFO This action is to inform yOu that no Incident Report or Confiscation Slip

EMPLOYMENT Reason were provided by Staff members at Dismas Charities,lnc.,as required by

EMPLOYMENT SCHEDULE BOP Regulations. Best Regards Traian BujduveanuFIXED MOVEMENTS Previous lf you READ the Rules and Regulation Handbook given to you by me

HouE coxF. Responses you will see that this is not part of our procedure. Contraband is just thatand it will be disposed of./ Ana gispedM

ovsuEN'r REouEs'rs gisped, ana 10/19/2010 5:24:00 PM

OFFENSES Response

OPEN MOVEMENTS

PAYMENTS

PROGRAMS

REQUIRED CHECKS

STATUS HISTORY Save Reset Cancel Reassign

SUBSISTENCE

SUMMARY

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CLIENT INFO Client Bujduveanu, TraianCUIENT STAY INFO Number 3901

GoN'rAc'rs Requested . pu10/19/2010 12.29

CLIENT n sKs Date

DISCHARGE status GompletedDRMNG INFO n js is to advise you that because ''the vehicle and Traian BujduveanuEMPLOYMENT has NOT being authorized by Dismas Charitiesmlnc.n,it make the SearchEMPLOYMENT scHeouLe and Consscation Illegal. Also please be advide that I do not Smoke,Drink

MoveMsr s Reason 0: USe any Drugs,and neither does any member of my family.n ereforeFlxEo the accusations of use of Cigarettes is false. lf someone in the Staf couldHOME coNF. j trust such persons to search my

make such of statements,then how canMOVEMENT REQUESTS Iocker or the vehicle,without me being presentor without my knoledge ?

OFFENSES Best Regards Traian BujduveanuOPEN MOVEMSNTS Previous Please read your Handbook regarding searches./ Ana gisped

PAYMENTS Responses gispeft ana 10/19/2010 s:31:00 PM

PRooM Ms Response

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STATUS HlsToRy

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Traian BujduveanuAc-rloN REouEs'r DETAILSAcnoN REQUESTS

CASE NoTEs Staff gispert, ana

CLIENT INFO Client Bujduveanu, TraianCLIENT STAY INFO Number 3867

CoNnwc'rs Requested 10/16/2010 12:42 PM

CUIENT TASKS Date

DISCHARGE Status Completed

DRIVING INFO This is a request to Exponge the 300' Shot given to me on Friday

EMPLOYMENT 10/15/2010,4:30 pm. The reason for the request is that more than 24EMPLOYMENT SCHEDULE hours has passed since the incident occured and no reason for extension

MovExEx-rs WaS given to me. Also please note that among other sanction,there wasFIXED''Light W ork Duty'' placed in this Shoot. Please note the fact that l haveH

OME CoNF. Reason jth the following medical conditions: -viral Hepatitis C -been diagnosed w

MOVEMENT REQUESTS Liver cirhosis -l-iver Cancer -chronic Fatigue -Diabetes drombocytopeniaOFFENSES -l-ow Platelets Count -l-ow Pheripheral Blood Circulation These medicalOPEN MOVEMENTS conditions do not permit me to accept any kind of work. Best Regards

PAYMENTS TFaian bujduveanupaoon xs Previous Denied. This is not an Incident Repod but an in house disciplinary repo .

Responses Also your file from the institution states you are cleared to work witin yoREQUIRED CHECKS :

medlcal conditions. I believe dusting qualifies./ Ana gispedSTATUS HISTORY gisped

, ana 10/19/2010 5:22:00 PM

SUBSISTENCE Response

SUMMARY

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Traian BujduveanuAc'noN REQUESTS ACTION REQUEST DETAILS

CASE NoTEs Staff gispert, ana

CLIENT INFO Client Bujduveanu, TraianCLIENT STAV INFO Number 3900

coNnwc'rs Requested 10/19/2010 12:24 PMCLIENT TAsKs Date

DISCHARGE status Completed

DRIVING INFO This Ietterr is to advise you' that l experience pain and disconfort in myEMPLOYMENT Iiver. This is due to being upset and harrassed for the Iast week,by Mr.EMPLOYMENT SCHEDULE Thomas and his Staff members. Please be kind and advise Mr. ThomasFIXED MOVEMENTS Reason to refrain from upseting me due to my medical conditions,and the

dammage it can be done to my fragile Iiver. I frankly believe this conflictHOME coNF. is auempted to behas escalated from nothing to a Personal Level and it

MOVEMENT REouEs'rs resolved in a vindictive way by Mr. Thomas. Best Regards Traian

OFFENSES BujduveanuOPEN MOVEMENTS Previous I do hope that you feel better. I will speak to Mr Thomas regarding thisPAYMENTS Responses situation since as you know I have been out of town since 10/14/10./ AnaPROGRAMS gispert

gisped, ana 10/19/2010 5:31:00 PMREQUIRED CHECKS Respo

nseSTATUS HISTORY

SUBSISTENCE

SUMMARY


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Traian BujduveanuAcnoN REQUESTS ACTION REQUEST DETAILS

cAsE Nomss Staff Adams, Lashonda

cLIsNr INFO Client Bujduveanu, Traiancusxr s'rAv lwFo Number 3872

coxnwcvs Requested 10/17/2010 9:17 AMcuEuv TAsKs Date

DlscHAaoe status completed .DRM NG INFO Please be kind and rovide a BP-9 Form,so I can 5le it to the proper

Reason vou Traian BujduveanuEMPLOYMENT aut on Ies responsable for grievances. ThankEMPLOYMENT SCHEDULE Previous Mr. Bujduveanu, unfortunately i was unable to obtain a BP-9 From. IFlxEo MovEMsN'rs Responses will check with the Director to see if we have such form.

Adams. Lashonda 10/19Q010 9:42700 AMHOME CONF. R

esponseMOVEMENT REQUESTS

OFFENSES

OpEN MOVEMENTS

PAYMENTS

PROGRAMSSave Reset Cancel Reassign

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SUBSISTENCE

SUMMARY

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Traian BujduveanuAcroN RequEs'rs ACTION REQUEST DETAILS

CASE No'res Staf gispert ana

CUENT INFO Client Bujduveanu, TraianCLIENT STAY lNFo Number 3889

coNJwc'rs Requeste 10/18Q010 10:53 AMCLIENT TAsKs Date

D1scHARoE status CompletedDRMNG INFO This Ietter is to inform you that B.O.P. Regulations states that an IncidentEMPLOYMENT Report and a Consscation Slip should be provided to the prisoner within 24EMRLOYMENT scHeouus hours of the incident. Alx an investigation should be carried outin the 5rstFlxEo MovsMex'rs 24 bours Of tbe incidentby a body of people that have no knoledge of the

incident and are neutral. Upon the findings of this Neutral Commission,aHoMe coNF. shot could be issued within 5rst 24 hour of the incidentif prisoner wasMoveMEN'r REouEs'rs found to be guily. Today. when l have asked Mr. n omas and Ms. AdamsOFFENSES for a copy of the incident report and a copy of the consscation slip,l wasOPEN MOVEMENTS told that they would take me back to prison when 'They'' do thatand thatpAvxsxvs Reason this is the Gristmas Charities,lnc. and NOT the Bureau of Prisons. Please

note that the other day,when I have asked Mr. R omas if doctor shouldPROGRAMS .have a Iast say in a medicyl matter here.he responded: This is TheREqulREo cHEcKs B o e and doctor does not have any say here. In Iight of aIl of the above,lSTATUS HISTORY am kindly asking you to help me in this matter,as I am confused and do notSusslsTENcE understand why my Constitutional Rights are violated and why is is thatSUMMARV when I ask about my rights'l am being threatened with a ''Rweturn to

Prison''. if this issue cannot be resolved inhouse in an amicable way.then Ikindl re uest a BP-9 Form.so I couild 5Ie my grievances outside of this

institution. Best egards Traian BujduveanuPrevious Piease read your handbook regarding contraband. Best regards./ Ana

Responses gispertqispelt ana 10/19/2010 527:00 PM

Response


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CLIENT INFo Client Bujduveanu, TraianCLIENT STAY lNFo Number 3905

CoNTAc'rs Requested 10/19/2010 4:39 PMCLIENT TASKS Date

DlscHu oe status completed .DRM NG INFO 'rhjs a request for a copy of ALL Shots issued to me or to my name byEMPLOYMENT Dismas Charities,lnc. Staff members. Subsequently I am requesting that

EMeLOYMENT ScHeouus Reason 3 BP-9 Form Will be iven to me for each one of the o Issu o meFIXED MovEMEx'rs Or 0 my name,so l could le my grievances. I believe these are my

Constitutional Rights,and they should be not denied. Best Regards Traian

HOME coNF. BujduveanuMOVEMENT REQUESTS Previous t

ransferredOFFENSES Responses gispert, ana 10/20Q010 4:26:00 PMOPEN MOVEMENTS Response

PAYMENTS

PROGRAMS

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STATUS HISTORY

SUBSISTENCE. Save Reset Cancel Reassign

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CLIENT IsFo Client Bujduveanu, TraianCLIENT STAY lNFo Number 3899

coN'rv 'rs Requested 10/19/2010 11:25 AMCI-IENT n sKs Date

DlscluRos Status GompletedDRM NG INFO This Ietter is to advise you that today 10/19/2010,10:50 a ,m I was called toEMPLOYMENT the front desk and told that l should vacuum the room ''for himf',in anEMPLOYMENT ScHsotxs attempt to intimidate me. Ms. Gispertplease be aware that as a result ofFlxeo MoveMevrs aII adions aginst me,for the Iast weekby Mr. Thomas and his staf,my

Reason liver has swallow and I do experience pain. This has been a great upset toHOME coNF. d keep onme,and your staff members do not want to leave me in peace.anMOVEMENT REouss'rs harfassing me,without any reason. Please be kind and provide me with a

OFFENSES BP-9 Form,so I can 5Ie my grievan. cies- outside of the sphere of this

opsN MoveMsNls institution. Best Regards Traian bujduveanuPAYMENTS Previous yoU HAVE BEEN GIVEN A DIRECTIVE TO VACUMN THE ROOM AS Apaoou Ms Responses SANCTION, EXTRA DUTK AND YOU REFUSEDJ aNA GISPERT

gispert ana 1(g19r 10 5:29:0: PM

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CLIENT lNFo Client Bujduveanu, TraianCLIENT STAY INFO Number 3907

coNnwc'rs Requested 10/19/2010 6:47 PMCLIENT TAsKs Date

DISCHARGE status completed

DRMNG INFO pjease be kind and advise at your own convenience,as per which rulesEMPLOYMENT this institution follows: The B.O.P. Rules or Dismas Charities,lnc. Rules.EMPLOYMENT SCHEDULE Reason It appears to me that rules applied here are a matter of convenience andFIXED MOVEMENTS DOt Of Someting of legal nature. Please help me to understand this issue.

Best Regards Traian BujduveanuHOME coNF.

Previous transferredMOVEMENT REouEs'rs Responses gisped

, ana 10/20/2010 4:26:00 PM

OFFENSES Response

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CLIENT INFo Client Bujduveanu, TraianCLIENT STAY INFO Number 3235

coxawc'rs Requested 7/29/2010 12:24 PMCLIENT TAsKs Date

Dlsclu aoe status completed .

DRIVING INFO j would like to attend Church Sevices,evel Sunday moming, at theEMPLOYMENI Reason Romanian Orthodox Church located on ST .Road 441 and Pembrooke

EMPLOYMENT SCHEDULE Pines.FIXED MOVEMENTS PXViOLIS YOU are Only allowed to travel Within 5ve miles of the facility for

HOMC COHF. RPSRODSSS FPligious Services.Adams, Lashonda 7/29/2010 4:23:00 PM

MovEMeN'r ReouEs'rs ResponseO

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REQUIRED CHECKS Save l Reset Cancel ReassignSTATUS HlsToRY

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CUENT INFO Client Bu'd veanu, Traian

CUENT STAY INFO Requested Date :/4/201:

coNlwc'rs Requeste For Datt 8/8/201:cuHv n sKs Loo tions GeneralDlscHARoe Name straee st-w- c-* so4emp

Dnlvlhlo INFO Holy Cross 6232 Fplmore sojjywoou'Ft 33024

Church Street

EMPLO- EGEupl-oa svr ScHaouus Requesled Out Tfme 9:00 AM

Flxso Movsx- s Duration 4 Hourls) G Minutels)

Houe coug. Mode c)fMO< MENT Requea'rs Transportation To YrZnS9OXed by Family/Friend

o-sxses Mode of Transported by FamilymriendopEN MoveMsr s Transportation FromPAYMENTS I would tike to attend Church Sere es. Distance: 7.3 mi-abotlt

Reason - -

PgooM Ms 15 mins

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Page l of 1Dismas O srities - Freshstart

MovEMEr REouEsT DETAILS

Staff Adams. Lashonda

Client Bu'duveanu, Traian

Requested Date 10/6/2010

Requested Fork.- 10/10/2010D

ate.. M

Loca:ons GeneralName tra- atreeu ciw statsRomanian Oc odox Ghurch 6232 Fillmore Skeet Hollywood FL 33024

Requested Out 10:00 AMTime

Duration 3 Hx dsl 0 Minuwts).

Mode Of Transpoe d by Family/FriendTranspoe tion To

Mode OfTransportation Tœnsported by Family/FriendFrom

This is a request for ''Church Aoendance'' Church is Iocated at 9.5 Mi and should 1ke aboutReason 16 Minutes by car. There are ONLY Y o Oe odox churches in So* Floridavand both are

Iocated about 16 minutes away from my home.

Status DeniedDenial Reason You need to 5nd a place of worhship within 5 miles of your home.

I cancel J

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EXH IBIT D


' ' ' - Blam as Chahdes, Inm

bisci Iina Re ort

.- .- . ...w Rsgdo tN . .sjgrxp xàBu'duveanu, Traian 80655.0% Dania Beach

Rule # ' ate of Alleged Offense Status309 1c/135DsG Promelease

Descri tion and Commena:

Mr. Bujduveanu was observed operating a motor vehicle on 10/13/2010. Mr. Bujduveanu isnot authorized to o erate a motor vehicle without the a roval of the Diredor

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Investi ation:

Resident's Comm ene :

Num ber of DRs to date: 2 Number of DRs for this rule: 0

Action Taken:

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Resident Signature Dale 'qnature Date

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Case 1 .' 1 1 -cv-zr''o 1 ZO-PJAS Docu ment 60 Entered on FLSD Doclœt 10/03/201 1 Page 28 of 39

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Kp-s2@8 (Continued)

FINDINGS OF THE COMMITTEE

The ace was committed as charged. Code l08 and Code 309

b. The following act was committed:

c. No prohibited act was committed: Expunge according to your Statement of Work.

V . SPECIFIC EVIDENCE RELIED ON TO SUPPORT FINDINGSYour due process rights were read and reviewed with you by the CDC Committee at the time of the

hearing. You stated you understood your rights.

The CDC found evidence that your behavior violated the BOP's Prohibited Act, Code l08 i.e. Possessionmanufacture, or introduction of a hazardous tool and Code 309 i.e. Violating a condition of a community program.The Committee based its decision on the facts outlined in the written report: On 10/13/10 I observed offenderBujduveanu walking towards his vehicletblue Ford Explorer truck) in the resident parking lot. He then got intothe vehicle and backed the vehicle into a parking space. I asked his counselor if he was authorized to drive andshe stated that he was not and that his wife was authorized to transport him. A review of his file corroborated

that he was not authorized to drive. Offender Bujduveanu had driven the vehicle from his home to the facility.His counselor went outside and brought offender Bujduveanu inside where we questioned him about why he wasdriving without authorization. Staff explained to him that it was against the rules for him to operate avehicle without permission and we searched his vehicle. During the search staff found an unauthorized cellphone (black Motorola in offender Bujduveanu's name) and a black Motorola car phone charger. Offender Bujduveanuis therefore in violation of code Bogiviolating a condition of a community program and code lo8tpossession

manufaceure, or introduction of a hazardous tool.

V I . SAN CTION RECOMMENDATION Based on the above evidence the

of f ender Bujduveanu, Traian remain Disciplinaz'y transf erred.

Committee recommends

VII . REASON FOR SAN CTION RECOMM ENDATION

To deter this and other inmates from committing

future.

similar acts the

VIII. APPEAL RIGHTS Inmate was advised.The inmate has been advtsed of the findings, specific evidence relied on, action and reasons forthe action. The inmate has been advised of his right to appeal under the Administrative RemedyProcedure or by letter within 20 days of the imposition of the sanction to the Regional Director.

A copy of this report has been qiven to the inmate.

IX . DISCIPLINE COMMITTEE: .Chairperson Member Member

Galo Rugel <

X . ACTION BY DHO

Typed Name/signature - DHO Date

(This form may be replicated via WP)

&


x'p-s2à'8 . o73 CENTER DISCIPLINE COM ITTEE REPORT (CCC' S) CDFRM

MAR 94 *U.S. DEPARTMENT OF JUSTICE FEDERAL BUREAU OF PRISONS

Name of Inmate Register Number He ' Date

Bujduveanu, Traian 80655-004 10/29/10

g Date of Incident ident Report Prohibited10/13/10 10/13/10 Actls) Code 108, 309

summary of Chargels Possession, manufacture or introduction of a hazardous tool / Violatinq a

c ndition of a communit ro ram.

1. NOTICE OF CHARGEIS)

Date Typed Name/signature DHO

A. Advance written notice of charges (copy of incident report) was given to inmate on10/20/10 at 0739 by Dontallis Render . ( Resident refused to accept a copy of

the charges when he was picked up by the US Marshals.Date Time

The CDC Hearing Was held on 10/29/10 at 10:50am .Date Time

The inmate was advised of his rights before this CDC by: Bobbie Lowery

on 10/22/10 and a copy of the advisement of rights form is attached.

Date

STAFF REPRESENTATIVE

Inmate waived right to staff representative: (Yes/No/NA)He originally called for RM CorkyShennett who was unable to attend due to his work schedule.

Inmate requested staff representative and NA appeared.

Requested staff representative declined or could not appear but inmate was advised of optionto postpone hearing to obtain another staff representative with the result that: Staff

mooher Angela Moore was sent as a staff rep and offender Bujduveanu did not request another

staff rep.

III PRESENTATION OF EVIDENCE .A. Inmate has been advised of his right to present a statement or to remain silent, to present

documents, including written statements of unavailable witnesses, and for relevant and

material witnesses to appear in his behalf at the hearing.Inmate admits/denies the chargels) during the investigation

Summary of Inmate Statement:

Witnesses:The inmate requested witnesses: .. &AIY /No/NA)

1. The following persons were called as witnesses at this hearing and appeared: See

attachment ( . . (( :/-OVXJA summary of testimony of each is attached: (Yes/No/NA)The following persons requested were noe called for the reasontslgiven: AJSUnavailable witnesses were requested to submit written statements and those statements

were considered: . .e.IY s/No/NA)

Documentaz'y Bvidence : In addition to the incident Report and Investigation, the Committee

considered the . f ollpy-tpg document s z--oll.q . Ce pà.ttc4- çoms.s.il-ce/- the- f.o-kko.wM g--doa ments-l - ... ,

Documentation allowin: offender Bujduveanu s wife to transport him and photos of the cellphone and charger.Confidential information was considered by the CDC and not provided to inmate (Yes/No/N&)


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