1. 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
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2. (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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3. 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
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4. 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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5. 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
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6. 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
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7. 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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8. 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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9. 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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10. 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. §§ 541.14-
541.19. 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
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11. 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.
11

12. 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

13. 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 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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14. 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
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15. 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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16. 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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17. 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
17

18. 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
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19. 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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