Doc. 131

Case 1:11-cv-20120-AMS Document 131 Entered on FLSD Docket 03/29/2013 Page 1 of 37

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 11-20120-CIV-SIMONTON

TRAIAN BUJDUVEANU,

Plaintiff,

v.

DISMAS CHARITIES, INC., ANA GISPERT,
DEREK THOMAS, and LASHONDA ADAMS,

Defendants.

/

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

Presently pending before the Court are the parties’ cross-motions for summary

judgment (DE # 103, 125). This case has been referred to the undersigned Magistrate

Judge based on the consent of the parties, pursuant to 28 U.S.C. § 636(c) (DE # 100).

Having thoroughly reviewed the record and, for the reasons stated herein, Defendants’

Supplemental Motion for Summary Judgment (DE # 103) is GRANTED and the Plaintiff’s

Renewed Second Motion for Summary Judgment (DE # 125) is DENIED.

I. BACKGROUND AND PROCEDURAL HISTORY

This case stems from the events that occurred while Plaintiff Traian Bujduveanu

was serving a sentence imposed as a result of his federal criminal conviction.

Specifically, on June 12, 2009, Plaintiff pled guilty to conspiracy to violate the

lnternational Emergency Economic Powers Act and the Arms Export Control Act. The

District Judge committed Bujduveanu to the custody of the United States Bureau of

Prisons (“BOP”) to be imprisoned for a term of thirty-five (35) months.

On July 10, 2010, the BOP assigned Bujduveanu to a halfway house operated by

Defendant Dismas Charities, lnc. (“Dismas”) a private corporation. Thereafter, Plaintiff


was placed on home confinement and required to report to the halfway house once a

week. In October 2010, Dismas returned Plaintiff to confinement at the Dismas facility for

a rules violation and, ultimately, Plaintiff was returned to the Federal Detention Center in

Miami (“FDC Miami”) to serve the remaining 81 days of his sentence. After his release,

Plaintiff commenced this pro se action.

The Plaintiff initially filed this case as a Motion for Return of Property against

Dismas and Ana Gispert, claiming that a family car he had driven to Dismas had been

unlawfully searched, that a telephone and charger had been removed from it, and that

Dismas had unlawfully seized this and other personal property (DE # 1). As relief, he

sought an order requiring Dismas to return his property, generate an account of all

property seized, and provide any further relief the Court deemed appropriate. (DE # 1 at

3). Thereafter, before serving either defendant, the Plaintiff filed an Amended Complaint,

which added Defendants Derek Thomas and LaShonda Adams and added constitutional

claims and state law claims. In that Amended Complaint, Plaintiff contended that the

Defendants deprived him of various rights guaranteed by the United States Constitution;

specifically, his First Amendment right to freedom of expression; his Fourth Amendment

right to be free from unlawful seizures of his property and person; his Fifth and

Fourteenth amendment rights to due process of law; arguably a Double Jeopardy claim;

and, his Eighth Amendment right to be free from cruel and unusual punishment. (DE #

14). He also asserted the following state law claims: false arrest and imprisonment;

assault and battery; malicious prosecution; abuse of process; negligence; and gross

negligence. Id.

The Amended Complaint was dismissed with prejudice as to all of Plaintiff’s

Bivens claims against Dismas Charities, Inc., the Eighth Amendment claims against the

2


individual Defendants, and the Double Jeopardy claim. All of Plaintiff’s remaining claims

were dismissed with leave to amend for failing to state a claim and for failing to comply

with Federal Rules 8 and 10 (DE # 98). The Defendants were ordered to file an Answer,

not a motion to dismiss, to any amended pleading filed by Plaintiff (DE # 98 at 8, ¶ 5).

Thereafter, the District Judge entered an Order of Reference of this case to the

undersigned Magistrate Judge, based on the consent of the parties (DE # 100).

Plaintiff then filed his second amended complaint in which he advances claims for

violations of the First, Fifth and Fourteenth Amendments to the Constitution and state

law claims for Negligence and Gross Negligence, Abuse of Process and Malicious

Prosecution (DE # 101). Defendants answered the Complaint as directed by the District

Judge (DE # 102), and filed the presently pending supplemental motion for summary

judgment (DE # 103). Plaintiff responded in opposition (DE # 111), and filed his own

presently pending motion for summary judgment (DE # 125).1 These motions are fully

briefed.

II. Standard for Summary Judgment

Rule 56 of the Federal Rules of Civil Procedure authorizes entry of summary

judgment where “the pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that the movant

is entitled to judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986); Denney v. City of Albany, 247 F.3d 1172, 1181 (11th Cir. 2001). The movant

1
Although the original motions for summary judgment, which were pending at
the time the first Amended Complaint was dismissed, were denied without prejudice, the
Court entered an Order which stated that the parties need not refile the evidence
submitted in support of those motions (DE # 119 at 13-14). The parties were cautioned,
however, that they must include citations in their motions and memoranda which direct
the Court to the evidence in the record they wished the Court to consider (DE # 119 at
14).

3


has satisfied its burden of proof if, “after adequate time for discovery,” the non-movant

has failed “to make a showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will bear the burden of proof at

trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is an

integral part of the federal rules as a whole, which are designed to secure a just, speedy,

and inexpensive determination of every action. Celotex Corp. v. Catrett, supra.

When the motion is filed by a defendant and addresses the adequacy of plaintiff’s

causes of action, the defendant’s “burden is not to produce evidence negating the

existence of material facts; rather, the burden is to ‘point out the absence of evidence

supporting the nonmoving party’s case.’” Compania de Elaborados de Café v. Cardinal

Capital Mgmt., Inc., 401 F. Supp. 2d 1270, 1274 (S.D. Fla. 2003) (quoting Skotak v.

Tenneco Resins, Inc., 953 F.2d 909, 913 (5th Cir. 1992)); see also Hickson Corp. v. N.

Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004).

Assuming the moving defendant has met its initial burden, the non-moving

plaintiff may not rely merely on allegations or denials in its own pleading; rather, its

response must support its assertion “that a fact cannot be or is genuinely disputed” by

“citing to particular parts of materials in the record, including depositions, documents,

electronically stored information, affidavits or declarations, stipulations . . ., admissions,

interrogatory answers, or other materials; or . . . by showing that the materials cited do

not establish the absence or presence of a genuine dispute, or that the adverse party

cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). A

party can object to the use of the material cited on the ground that it “cannot be

presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). “The

mere existence of a scintilla of evidence in support of the plaintiff’s position will be

4


insufficient.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 252. There must be a genuine

factual dispute sufficient to permit a reasonable jury to return a verdict for the non-

movant; and, “(f)or factual issues to be considered genuine, they must have a real basis

in the record.” Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996)

(quoting Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913, 918 (11th Cir. 1993)).

“For instance, mere conclusions and unsupported factual allegations are legally

insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326

(11th Cir. 2005).

While the Court must view all of the evidence and any inferences arising

therefrom in light most favorable to the non-movant, it is nevertheless insufficient for the

non-movant “to state what the evidence at trial will demonstrate” without producing

actual “evidence to refute the factual claims contained in the motion for summary

judgment.” Schvaneveldt v. Mastec N. Am., Inc., 306 F. Supp. 2d 1177, 1181 (S.D. Fla.

2004) (citing Hairston, 9 F.3d at 918). Nor is the Court “required to ‘scour the record to

determine whether there exists a genuine issue of material fact to preclude summary

judgment.’” Cardinal Capital, 401 F. Supp. 2d at 1282 n.5, quoting L.S. Heath & Son, Inc.

v. AT&T Info. Sys. Inc., 9 F.3d 561, 567 (7th Cir. 1993).

III. DEFENDANTS’ SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT

A. The Undisputed Material Facts

In considering Defendant’s Supplemental Motion for Summary Judgment, the

Court considers all of the evidence in the light most favorable to the Plaintiff.2

2
The undersigned notes that Plaintiff relies on many allegations throughout his
memoranda that are not supported by evidence and which cannot be considered by the
Court. The Court does consider, however, factual allegations supported by Plaintiff’s
own Affidavit, as well as those supported by appropriate citations to other evidence in
the record (DE # 75). It goes without saying, however, that his legal conclusions are not

5


1. The Circumstances Surrounding Plaintiff’s Placement
at Dismas Charities, and His Subsequent Removal and
Return to Prison

On April 2, 2009 Plaintiff pled guilty to charges of conspiring to illegally export

military and dual use aircraft parts to Iran. (United States v. Bujduveanu, Case No. 08-

CR-20612, DE # 180). On June 11, 2009, Plaintiff was sentenced and committed to the

custody of the United States Bureau of Prisons (“BOP”) to be imprisoned for a term of

thirty-five (35) months. (Id., DE # 221; DE # 111, Ex. 1).

On February 24, 2010, in preparation for transition to a halfway house, the Plaintiff

signed a Federal Bureau of Prisons Form stating that as part of his release to a

residential reentry center he would abide by center’s rules and regulations. (Gispert

Affidavit (“Aff.”), DE # 83-2 at ¶15, and Ex. 4 at 37).

On July 28, 2010, the BOP transferred Plaintiff to Dismas, a half-way house, to

serve the remainder of his sentence until his release date of January 31, 2011.3 (Gispert

Aff., DE # 83-2 at ¶4).

Upon his arrival at Dismas, Plaintiff watched a “Resident Orientation Video” and

the Dismas “Program Policies and Procedures” were explained to him; and he signed a

form reflecting that this had occurred. (Gispert Aff., DE # 83-2 at ¶ 7, and Ex. 3 at 36).4

Plaintiff also signed a form entitled “Conditions of Residential Community Programs

Residence” that indicated Plaintiff understood he was required to abide by the rules and

facts, even though included within his Affidavit.
3
Dismas is a private non-profit corporation known as a Community Corrections
Center (“CCC”) Contractor. Id. at ¶5.
4
The Court will identify where an exhibit can be located by stating the page
number of the docket entry. For example, Defendants label the document entitled “Home
Confinement Special Condition” as Exhibit 6 and it is page 39 in Docket Entry 83-2. The
Court will pinpoint cite to docket entry page for this exhibit for ease of reference.

6


regulations promulgated by Dismas (Gispert Aff., DE # 83-2, Ex. 3 at 26-27). The Rules

and Regulations of Dismas provide that all participants in the Dismas program consent

to searches of their vehicles (Gispert Aff., DE # 83-2, Ex. 2 at 20, Sect. 2(d)); are not

permitted to possess or use cell phones without authorization (id. at 21, Sect. 6(c)) and

cannot drive without the prior approval of Dismas (id. at 20, Sect. 2(a)). The Rules and

Regulations also provide that violations of the rules and regulations could lead to

sanctions, including termination from the Program (Id. at 23). Plaintiff acknowledged

that he received a copy of the Dismas Rules and Regulations on July 28, 2010. (Gispert

Aff., DE # 83-2, Ex. 3 at 25).

Plaintiff also received a “Contraband List” that identified “Unauthorized: ... cell

phones (either active or inactive)” as contraband. (Gispert Aff., DE # 83-2, Ex. 1 at 19

and 31). Plaintiff’s acknowledgment of that Contraband List provides:

I understand that if I am found to be in possession of any item on this list,
the item will be confiscated from me and disposed of by Dismas Charities
staff. I also understand that if I am found to be in possession of any item
on this list I will be subject to disciplinary action.

(Gispert Aff., DE 83-2, Ex.1 at 31).

On August 10, 2010, Defendants Adams and Thomas sent a letter to Carlos

Rodriguez, the Community Corrections Manager at the BOP, requesting that the

employment requirement be waived for Plaintiff based on several specified chronic

medical conditions (DE # 125, Ex. 3, at 30).

On September 10, 2010, Plaintiff signed a Department of Justice, Federal Bureau

of Prison Conditions of Home Confinement Form (Gispert Aff., DE # 83-2, ¶ 6; Ex. 5 at

38). Plaintiff agreed on the form that he would not drive a motor vehicle without approval

of a Community Corrections Manager (“CCM”) (Gispert Aff., DE # 83-2, Ex. 5 at 38). Ana

Gispert , the Director of Dismas, never authorized or approved Plaintiff to drive a motor

7


vehicle (Gispert Aff., DE # 83-2, ¶¶ 22-24). On September 10, 2010, Plaintiff signed

another form indicating that he understood that while on home confinement he remained

subject to the Dismas Rules and Regulations (Gispert Aff., DE # 83-2, Ex. 6 at 39).

On September 28, 2010, following the approval of CCM Carlos Rodriguez, Plaintiff

was placed on home confinement due to medical reasons (DE # 111 at ¶ 10; DE # 125, Ex.

3 at 28-29).

On October 13, 2010, the Plaintiff appeared at Dismas on his reporting date by

driving himself to Dismas in Plaintiff’s family vehicle. After informing Plaintiff he was not

authorized to operate a motor vehicle, Dismas staff searched the vehicle for safety

reasons and located a cell phone used by the Plaintiff’s family in the glove box. A

handwritten Disciplinary Report dated October 13, 2010, which recounts the cell phone

violation reflects that Plaintiff refused to sign this Report (Gispert Aff., DE # 83-2, Ex. 8 at

42). Another handwritten Disciplinary Report dated October 13, 2010, which recounts the

unauthorized driving violation was prepared, and Plaintiff signed this Report and

provided an explanation that Plaintiff did not understand that approval was required to

drive a car because he had not received the Resident Handbook, but that he had

submitted all the paperwork required for driving a car (Gispert Aff., DE # 83-2, Ex. 8 at

43-46). There is no dispute that Plaintiff had submitted the required paperwork, but that

he had not received the required approval to drive. This Disciplinary Report reflects that

as a result of these violations, Plaintiff was removed from home confinement, given three

weeks of extra duty (light), prohibited from receiving weekend passes for three weeks,

and prohibited from visitation for three weeks (Gispert Aff., DE # 83-2, Ex. 8 at 43).

A typed Incident Report regarding both the unauthorized driving violation and the

cell phone violation was prepared and signed by Defendant Derek Thomas, dated

8


October 13, 2010; the Incident Report reflects that it was delivered to Plaintiff on October

20, 2010 (Gispert Aff., DE # 83-2, Ex. 8 at 41).

On October 15, 2010, Plaintiff wrote a letter to CCM Carlos Rodriguez which

advised CCM Rodriguez of his medical conditions, and stated that he “should not be

assigned any work duty as desired by the Dismas Charity” staff, and that “the doctor

should have the last say in this matter” (DE # 125, Ex. 4 at 35). There is no evidence in

the record regarding if and when CCM Rodriguez received this letter, or what, if any,

action was taken in response.

On October 18, 2010, Dismas staff issued another Disciplinary Report to Plaintiff

because of an unauthorized visit in the facilities’ parking lot (Gispert Aff., DE # 83-2, Ex.

8 at 47). This Disciplinary Report reflects the actions taken included 60 days extra duty

(light duty), no visitation until further discussion with the Director, Assistant Director,

and Counselor, and no weekend movements until further notice.

The following day, on October 19, 2010, the BOP notified the U.S. Marshals

Service that Plaintiff was a “CCC Program Failure” and asked them to “transport him to

FDC Miami, Florida” to complete his sentence (Gispert Aff., DE # 83-2, Ex. 10 at 50).

On October 19, 2010, at 11:25 a.m., Plaintiff sent a Request to Defendant Gispert

that complained about his assignment to vacuum a room, stating that the assignment

was an attempt to intimidate him, and that as a result of the actions taken against him

during the past week, his liver had swollen and he had experienced pain. He stated that

the staff was harassing him without reason, and requested a BP-9 Form so that he could

file his grievances outside the sphere of the Dismas institution (DE # 125, Ex. 4 at 33). At

12:24 p.m., Plaintiff sent another Request to Defendant Gispert, advising her that he was

experiencing pain and discomfort in his liver due to being upset and harassed by

9


Defendant Thomas and his staff for the past week (DE # 125 at 34). At 5:29 p.m.,

Defendant Gispert responded to the first Request by stating that Plaintiff had been given

a directive to vacuum the room as an extra duty sanction, and that he had refused to

comply (DE # 125, Ex. 4 at 33). At 5:31 p.m., Defendant Gispert responded to the second

Request by stating that she hoped Plaintiff felt better, and that she had been out of town

since October 14th, and that she would speak to Mr. Thomas (DE # 125, Ex. 4 at 34). Later

on October 19, 2010, at 6:47 p.m., Plaintiff sent a Request to Defendant Gispert, and

asked her to “advise at your own convenience, as per which rules this institution follows:

The B.O.P. Rules or Dismas Charities, Inc. Rules. It appears to me that rules applied here

are a matter of convenience and not of something of legal nature. Please help me to

understand this issue.” (DE # 111, Ex. 6 at 57). Plaintiff was transferred to FDC the

following morning, and Defendant Gispert noted on the Response portion of the form

that Plaintiff had been transferred (DE # 111, Ex. 6 at 57).

On October 20, 2010, Plaintiff was transported by the U.S. Marshal’s Service to the

Federal Detention Center (FDC) in Miami, where he was held until he completed service

of his sentence on January 3, 2011, and was released (Bujduveanu Aff., DE # 75 at 2).

The parties dispute the events that occurred following Plaintiff’s transfer into BOP

custody, and particularly whether Plaintiff was given adequate notice of the charges and

a hearing.5 These disputed facts are not material for purposes of the present motions,

however, because there is no evidence that the Defendants in this case had any control

5
The Affidavit of Defendant Gispert attaches copies of BOP records which
document that a hearing was held at FDC Miami regarding the violations which resulted
in his transfer from Dismas to FDC (DE # 83-2 at ¶ 34 and Ex. 11 at 51-62). Plaintiff
contends that there was no such hearing, and that if a hearing had been held, that fact
would appear in the BOP SENTRY records he received (DE # 111 at ¶ 19). Plaintiff
appears to assert that the documents were fabricated (DE # 114 at ¶¶ 3, 5).

10


over those proceedings. At all relevant times the Plaintiff was under the control, rules

and regulations of the Federal Bureau of Prisons (Gispert Aff., DE # 83-2 at ¶ 36).

2. Plaintiff’s Request to Attend Religious Services

The Dismas Rules and Regulations, under the heading, “PRIVILEGES,” provides

as follows:

You will be able to attend weekly church services, as approved by your
Counselor [a] maximum of (3) hours per week including travel. Church
must be within (5) miles of the facility. (Church Bulletin and a completed
Church Report Form must be provided upon your return back from the
facility). Note: Exceptions to the (5) mile rule will only be made when your
stated denomination of worship cannot be located within five miles of the
program.

(Gispert Aff., DE # 83-2, Ex. 7 at 40). Plaintiff submitted requests on July 29, August 4,

and October 6, 2010 for permission to attend church at two different Orthodox churches

(DE # 111, Ex. 6 at 53-55). The first two requests, which were made before Plaintiff was

transferred to home confinement, were denied by Defendant Adams because both of the

Orthodox churches identified by Plaintiff were more than five miles from Dismas (DE #

111, Ex. 6 at 54-55). In connection with the denial of the second request, Defendant

Adams asked Plaintiff if he could try to find a church within five miles of the facility (DE #

111, Ex. 6 at 55). The third request, which was made on October 6, 2010, and requested

to attend a Sunday church service on October 10, 2010, occurred while Plaintiff was on

home confinement. This request notified Dismas that there were “ONLY two Orthodox

churches in South Florida, and both are located about 16 minutes away from (Plaintiff’s)

home.” (DE # 111, Ex. 6 at 53). Defendant Adams also denied this request noting that

Plaintiff needed to “find a place of worship within 5 miles of (his) home.” (DE # 111, Ex. 6

at 53).

There is no evidence in the record regarding any further steps taken by Plaintiff to

11


pursue his desire to attend the Orthodox churches during the two weeks between the

denial of this request and his transfer to FDC, other than the non-specific requests made

to Defendant Gispert asking her to explain the rules of Dismas and requesting a BP-9,

which were made the day before he was transferred.

B. Legal Analysis

1. Plaintiff’s Bivens Claims Against Dismas Were Dismissed With
Prejudice

At the outset, the undersigned notes that it is unclear from the operative Amended

Complaint which Counts are lodged against which Defendants, since he refers

generically to “the Defendants” in all counts. Assuming that he intends to pursue these

claims against all Defendants, the undersigned notes that this contravenes the prior

Order of Dismissal which dismissed all of the Bivens claims against Defendant Dismas

Charities with prejudice.

Defendants recognize this by first arguing that Plaintiff cannot maintain any

“Federal Constitutional Action” against Dismas (DE # 103 at 3-4). Citing Correctional

Services Corp., v. Malesko, 534 U.S. 61 (2001) and the Court’s prior Order (DE # 94),

Defendants maintain that Plaintiff is unable to pursue a claim under Bivens v. Six

Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) against

a private corporation. Id. Given that all of Plaintiff’s federal constitutional claims against

Dismas have already been dismissed with prejudice, the Defendants’ first argument is

correct. As the undersigned previously determined, “Plaintiff is unable to pursue his

constitutional claims against that entity since the Supreme Court has unequivocally held

that a private prison is not liable under Bivens.” (DE # 94 at 15) (citing Malesko, 534 U.S.

at 61). Therefore, there are no constitutional claims remaining in this case against

Dismas to award summary judgment in favor of Defendants. Defendants’ motion is

12


therefore moot as to this issue.

2. Plaintiff Cannot Maintain a Fourteenth Amendment Claim Against
the Individual Defendants

Defendants next argue that summary judgment is appropriate because Plaintiff

cannot maintain a Fourteenth Amendment claim against the individual Defendants as

they are not “state actors.” (DE # 103 at 5). Plaintiff, in his response (DE # 111), fails to

respond to this argument. No matter what response Plaintiff might have advanced,

Defendants are correct in their suggestion that Plaintiff has no Fourteenth Amendment

claim against these individual defendants because they are not “state actors.” The

Fourteenth Amendment commands “No State shall ...”. U.S. CONST. amend XIV. By this

language, the Fourteenth Amendment is restricted solely to wrongs committed by the

State or on behalf of the State by its agents. United States v. Price, 383 U.S. 787, 794 n.7

(1966). Given that the entire thrust of this lawsuit is based on Plaintiff’s allegations that

the individual Defendants are federal, not state, actors, summary judgment is appropriate

on Plaintiff’s claim that Defendants Ana Gispert, Derek Thomas, and LaShonda Adams

violated his rights under the Fourteenth Amendment.

3. Plaintiff Cannot Maintain a Title VII Claim

To the extent Plaintiff seeks to assert a Title VII claim against these Defendants,

that claim is meritless. Title VII of the Civil Rights Act, 24 U.S.C. § 2000e et seq, relates

only to employment discrimination. See Alvarez v. Royal Athletic Dev., Inc., 610 F.3d

1253, 1264 (11th Cir. 2010). Title VII prohibits an employer from discriminating against an

employee with respect to compensation and the terms, conditions and privileges of her

employment-on the basis of sex, including pregnancy, childbirth and related medical

reasons. See 42 U.S.C. §§ 2000e-2(a)(1), 2000e(f). There is nothing in the record to

suggest that Plaintiff, a federal prisoner housed at Dismas, should be considered the

13


employee of or employed by the Defendants. Defendants are therefore entitled to

summary judgment on Plaintiff's Title VII claim.

4. Defendants Have Failed to Establish that Plaintiff Has No Bivens
Remedy Against the Individual Defendants

Defendants next argue that summary judgment is appropriate on the remaining

federal constitutional claims (First and Fifth Amendment) because Plaintiff cannot

maintain a claim under Bivens against the individual Defendants. (DE # 103 at 5-7).

Citing the Fourth Circuit’s decision in Holly v. Scott, 434 F.3d 287, 293-94 (4th Cir. 2006),

Defendants argue that the employees of a private corporation operating a prison

contracted by the federal government cannot be considered “federal actors” under

Bivens. (DE #103 at 6). Defendants’ argument, however, ignores the Court’s prior

discussion, and ultimate rejection, of Holly in concluding that the individual Defendants

here are federal actors. (Report and Recommendation: DE # 94 at 17-25, adopted by the

District Judge in DE # 98). In this light, Defendants’ arguments are more aptly

considered a motion for reconsideration of the Court’s prior discussion and analysis.

Defendants, however, have not advanced a single fact or legal basis that might support

such reconsideration. Burger King Corp. v. Ashland Equities, Inc., 181 F. Supp. 2d 1366,

1369 (S.D. Fla. 2002) (The three grounds for reconsideration are: (1) an intervening

change in controlling law; (2) the availability of new evidence; and (3) the need to correct

clear error or prevent manifest injustice.). Defendants’ motion merely asks the Court to

“rethink what the Court ... already thought through(,)” which is an improper basis for

reconsideration. Z.K. Marine Inc. v. M/V Archigetis, 808 F. Supp. 1561, 1563 (S.D. Fla.

1992). That Defendants do so without even acknowledging the Court’s prior discussion

of this very issue only serves to underscore the inappropriateness of Defendants’

request. As such, the Court must reject the Defendants’ rationale for summary judgment

14


on the First and Fifth Amendment claims to the extent they argue that the individual

Defendants are not federal actors under Bivens.

That is not to say that Defendants’ argument that Plaintiff has no Bivens remedy

against the individual Defendants is totally without merit. In order to raise a Bivens

claim, a plaintiff must show: 1) that the defendants in question were acting under color of

federal law; and, 2) that the plaintiff lacked any alternative remedies for the defendants’

conduct. See generally Malesko, 534 U.S. at 70. The foregoing discussion only

addresses the first showing, the Defendants could still attempt to show that Plaintiff has

alternative remedies available.

At this stage of the proceeding, however, Defendants have no made such a

showing. Defendants’ omission is particularly glaring given the means of redress

available to Plaintiff here. Plaintiff had full access to remedial mechanisms established

by the BOP, “including suits in federal court for injunctive relief and grievances filed

through the BOP's Administrative Remedy Program (ARP).” Malesko, 534 U.S., at 74; see

also 28 C.F.R. § 542.10 (2001) (explaining ARP as providing “a process through which

inmates may seek formal review of an issue which relates to any aspect of their

confinement”). Although Plaintiff alleges that Defendants denied him due process of law

by denying him access to grievance forms and a hearing, there is no evidence that

Plaintiff was denied access to the ARP process. Because Defendants did not address

this issue though, the Court must deny summary judgment on this basis at this time.6

6
In addition, the undersigned notes that Defendants have not challenged the
existence of a Bivens remedy for violations of the free exercise clause of the First
Amendment; and, therefore the undersigned assumes that liability under Bivens extends
to such claims. Neither the United States Supreme Court nor the Eleventh Circuit Court
of Appeals have expressly decided this issue. See Reichle v. Howard, 132 S. Ct. 2088,
2093 n.4 (2012); Walden v. Centers for Disease Control and Prevention, 669 F.3d 1277,
1285 n.3 (11th Cir. 2012).

15


5. Defendants Have Not Unreasonably Burdened Plaintiff’s Right to
Free Expression of His Religion Under the First Amendment

Defendants next argue that Plaintiff cannot maintain a cause of action under the

First Amendment (DE # 103 at 7). Couching Plaintiff’s claim as a “First Amendment

retaliation claim,” Defendants maintain that they did not prohibit the Plaintiff from

worshiping in his chosen denomination (DE # 103 at 8). Rather, Defendants claim they

merely enforced the Dismas rule prohibiting prisoners from attending religious services

more than five miles from the Dismas facility. Because Plaintiff only asked to attend

services at a specific Orthodox Romanian Church more than five miles from Dismas, and

never asked to attend a church closer to the facility, Defendants argue that Plaintiff has

failed to state a claim for First Amendment retaliation (DE # 103 at 8).

In response, Plaintiff points out that there are only two Orthodox Romanian

churches in South Florida and they are both more than five miles from the Dismas facility

(DE # 111 at ¶17). Plaintiff attached documents to his response reflecting that he

informed Defendants that there were no Orthodox churches less than five miles from

Dismas, yet Defendants still denied his requests to attend those Orthodox churches (DE

# 111, Ex. 5 at 53-56).

Defendants reply brief does little more than regurgitate the arguments and

analysis from its opening brief in support of summary judgment (DE # 113 at 11-13).

Defendants do, however, emphasize that they did not prohibit the Plaintiff from

worshiping in his chosen denomination. Rather, they merely would not approve his

request to worship at a specific church more than five miles from the Dismas facility (DE

# 113 at 13).

As an initial matter, the Plaintiff’s Second Amended Complaint and the parties’

papers reflect that Plaintiff is not asserting a First Amendment retaliation claim, but a

16


claim that Defendants violated his right to freely exercise his religion under the First

Amendment to the United States Constitution. Plaintiff concedes that Dismas had a rule

that only allowed prisoners to attend churches located within five miles of the facility, but

maintains that an exception to the rule existed when no churches of the prisoner’s

denomination were located within a five mile radius of Dismas (DE # 101 at ¶19). It was

the Defendants’ refusal to adhere to that exception and allow Plaintiff to attend a church

beyond five miles that forms the basis of Plaintiff’s First Amendment claim. As set forth

below, Defendants are entitled to summary judgment on Plaintiff’s free exercise claim.

The First Amendment to the United States Constitution provides that “Congress

shall make no law respecting an establishment of religion, or prohibiting the free

exercise thereof....” U.S. CONST. amend. I. In keeping with the curtailment of privileges

contemplated by a criminal conviction and prison sentence, inmates retain only those

First Amendment rights that are consistent with their status as prisoners or with the

legitimate penological objectives of the corrections institution. Hudson v. Palmer, 468

U.S. 517, 523 (1984).

In the prison context,7 regulations burdening an inmate's religious practices have

traditionally been subject to a deferential standard and held valid if “reasonably related

to legitimate penological interests.” O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987). In

Turner v. Safley, 482 U.S. 78 (1987), the Supreme Court set out the relevant factors for

deciding the reasonableness of such a prison regulation, including: (1) whether there is a

valid, rational connection between the regulation and the legitimate, neutral

governmental interest used to justify it; (2) whether there exist alternative means for

7
A community corrections center such as Dismas is a form of prison. See
Asquith v. Dep’t. of Corr., 186 F.3d 407, 411 (3rd cir. 1999)(prisoner in halfway house is in
institutional confinement).

17


prisoners to exercise the constitutional right at issue; (3) the impact of an

accommodation on prison staff, inmates, and allocation of prison resources; and (4)

whether any alternative exists that would fully accommodate prisoners’ rights at low

costs to valid penological interests. Id. at 89-91. “The critical question for Turner

purposes is whether the prison officials’ actions deny prisoners their free-exercise rights

without leaving open sufficient alternative avenues for religious exercise.” Goff v.

Graves, 362 F.3d 543, 549 (8th Cir. 2004). As one court has explained, “(t)he pertinent

question is not whether the inmates have been denied specific religious

accommodations, but whether, more broadly, the prison affords the inmates

opportunities to exercise their faith.” Freeman v. Texas Dep't of Criminal Justice, 369

F.3d 854, 861 (5th Cir. 2004).8

The evidence reflects that a prisoner’s ability to attend weekly church services

constitutes a privilege and requires approval of a Dismas counselor (DE 83-2, Ex. 7 at

40). Attendance is limited to a maximum of three hours per week at a church located

within five miles of the Dismas facility. Id. The exception noted by Plaintiff provides that,

“Exceptions to the (5) mile rule will only be made when your stated denomination of

8
The undersigned notes that in Gonzales v. O Centro Espirita Beneficente Uniao
do Vegetal, 546 U.S. 418, 424 (2006), the Supreme Court explained the contours of a Free
Exercise claim as follows: “In Employment Div., Dept. of Human Resources of Ore. v.
Smith, 494 U.S. 872 (1990), this Court held that the Free Exercise Clause of the First
Amendment does not prohibit governments from burdening religious practices through
generally applicable laws. . . . [T]he Constitution does not require judges to engage in
case-by-case assessment of the religious burdens imposed by facially constitutional
laws.” The Court went on to state that “the Religious Freedom Restoration Act of 1993,
42 U.S.C. § 2000bb et seq., . . . provides that “the Federal Government may not, as a
statutory matter, substantially burden a person’s exercise of religion, ‘even if the burden
results from a rule of general applicability.’” Id. Even construing the pro se Complaint as
attempting to seek relief under the Religious Freedom Restoration Act, the Plaintiff’s
claim fails since, as discussed infra., he has not established a substantial burden on a
sincerely held belief.

18


worship cannot be located within five miles of the program.” Id. The evidence reflects

that Plaintiff submitted requests on July 29, August 4, and October 6, 2010 for

permission to attend church at two different Orthodox churches (DE # 111, Ex. 5 at 53-

55). The first request stated that Defendant wanted to attend church services at the

Romanian Orthodox Church, and was denied by Defendant Adams on the ground that he

was only allowed to travel within five miles of the facility for religious services (DE # 111,

Ex. 6 at 54). The second request sought permission to attend Holy Cross Church,

without further specification of the denomination; this request was also denied, with the

request that Plaintiff try to find a church within five miles of the facility (DE # 111, Ex. 5 at

55). The third request, which occurred while Plaintiff was on home confinement,

requested permission to attend a church service on October 10, 2010, at the same

Romanian Orthodox Church that was the subject of the first request, and notified Dismas

that there were “ONLY two Orthodox churches in South Florida, and both are located

about 16 minutes away from (Plaintiff’s) home.” (DE # 111 at 53). Defendant Adams also

denied this request noting that Plaintiff needed to “find a place of worship within 5 miles

of (his) home.” Id.

Thus, Defendant Adams denied Plaintiff the opportunity to attend a Romanian

Orthodox church service on October 10, 2010. Prior to the next Sunday, Plaintiff had

been removed from home detention and returned to the Dismas facility. Plaintiff did not

make a further request to attend church services, and he was transferred to FDC after the

following Sunday.

There is no claim that the general policy of Dismas which required residents to

attend a church within a five-mile radius did not serve a legitimate penological interest.

The question for this Court is whether Defendant Adams’ denial of Plaintiff’s last request

19


to attend church services beyond the five mile radius unreasonably burdened Plaintiff’s

right to free exercise of religion.9 As the foregoing authorities note, the real issue here is

not whether Dismas denied Plaintiff a specific religious accommodation (the ability to

attend church more than five miles from his home), but whether Dismas afforded Plaintiff

an opportunity to exercise his faith. See, e.g., Freeman, 369 F.3d at 861. Plaintiff has not

come forward with any evidence that, other than denying his request to exceed the five-

mile limitation, Defendants limited or infringed upon his ability to exercise his Romanian

Orthodox beliefs. Other than attending the particular church he identified, Plaintiff was

free to engage in the unfettered exercise of his religion. In that sense, almost every other

alternative avenue for religious exercise remained open to Plaintiff. That he was not

allowed to attend a particular church service on a particular day does not amount to an

unreasonable burden on his ability to exercise his religious beliefs given the ample

opportunities Plaintiff had to exercise his faith. Plaintiff has failed to come forward with

evidence of any sincerely held belief that was burdened by the requirement that he attend

a church service within five miles of his residence. This conclusion is underscored by

Plaintiff’s own admission in his response brief that attending church services had less to

do with exercising his religious beliefs and more to do with his ability to socialize:

(My) desire was not so much to attend religious services, but rather to

9
Plaintiff does not object to the existence of the five-mile limitation, only that
Defendants failed to grant him the exception to the limitation that permits attendance
outside this limit under certain circumstances. Plaintiff’s evidence demonstrates that he
did not inform Dismas that there were no Romanian Orthodox churches less than five
miles from Dismas until his third request to attend services. Thus, the third request is
the operative request for the purposes of the instant analysis. The Defendants’
argument that they only prohibited Plaintiff from attending a specific Romanian Orthodox
Church, and did not prohibit Plaintiff from attending a Romanian Orthodox church closer
to Dismas misses the mark since Plaintiff clearly advised the Defendant Adams that there
was no Orthodox Church within five miles of his home, and he requested to attend either
of the only two such churches that existed in South Florida (DE # 75, Ex. D at 22).

20


socialize with other people. A human being does not have to go to a
temple to pray if he or she has a desire to do so. They could do it
anywhere in their privacy.

Pl.’s Resp., ¶ 9 (DE # 128).

The denial of Plaintiff’s request to attend a weekly church service that Plaintiff

himself describes as more of a social gathering than a religious service does not

constitute an unreasonable burden on Plaintiff’s right to free expression of his religion.

The undersigned notes that although Plaintiff states that there are only two Orthodox

churches in South Florida, it is unclear whether there are other closer churches

sufficiently similar in denomination which he could attend. In this regard, the

undersigned notes that Holy Cross Church, identified in the second request, is not

denominated in the request as a Romanian Orthodox Church; and, Plaintiff has also

referred to the Greek Orthodox religion in his summary judgment response (DE # 128 at

3: “Defendants . . . are very much against Greek Orthodox Religion”). Further, Plaintiff

has failed to introduce evidence that Defendants limited his exercise of his Romanian

Orthodox beliefs in any other way.

Moreover, there is no evidence that Defendants Thomas and Gispert were in any

way involved with the decision made by Counselor Adams.10 Plaintiff’s October 19, 2010,

request to Defendant Gispert to discuss the rules of Dismas Charities is made a part of

the Exhibit used by Plaintiff to support his First Amendment claim; therefore, it appears

that he was in the process of pursuing administrative relief at the time he was transferred

10
Thus, even if there was sufficient evidence that Plaintiff’s free exercise of
religion was violated, only Defendant Adams could be held liable since there is no
vicarious supervisory liability in a Bivens action. Ashcroft v. Iqbal, 556 U.S. 662, 675-76
(2009) (“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff
must plead that each Government-official defendant, through the official's own individual
actions, has violated the Constitution.”)

21


to FDC and the request became moot (DE # 125, Ex. 5 at 40).

Plaintiff has therefore failed to produce sufficient evidence that the Defendants

substantially burdened the exercise of his First Amendment right to the free exercise of

his religion. Therefore, Defendants are entitled to summary judgment on Plaintiff’s First

Amendment claim.11

6. Summary Judgment is Appropriate on Plaintiff’s Fifth
Amendment Claim

Plaintiff’s only remaining federal claim seeks redress for a violation of his rights

under the Fifth Amendment to the United States Constitution. In the Second Amended

Complaint, Plaintiff alleges that his due process rights were violated when he was

removed from Dismas and incarcerated in the Federal Detention Center without a hearing

(DE # 101 at ¶ 22). The Court previously addressed almost identical allegations in

dismissing Plaintiff’s Fifth Amendment claim in his First Amended Complaint (Report

and Recommendation at DE # 94 at 47-49, adopted by the District Court at DE # 98). In

that Order, the Court recommended dismissing Plaintiff’s Fifth Amendment claim

because Plaintiff “failed to allege sufficient facts to tie the individual Defendants to this

claim.” Id. at p. 47. The Second Amended Complaint makes no effort to cure this

deficiency. Plaintiff’s amended pleading fails to allege any facts describing or identifying

any of the individual Defendants’ (Adams, Thomas or Gispert) purported role in his Due

Process rights violation. Although the matter is before the Court on a motion for

summary judgment, it would be proper to dismiss Plaintiff’s Fifth Amendment claim for

11
To the extent that Plaintiff intertwines an equal protection claim with his First
Amendment claim, asserting that other residents of Dismas Charities were permitted to
attend church services outside the five-mile limitation, Plaintiff has failed to adduce any
evidence of specific individuals who were permitted to do so; therefore, this assertion is
not further addressed.

22


failure to state a claim for relief against any of the individual Defendants.

Assuming Plaintiff has sufficiently alleged that one or more of the individual

Defendants violated Plaintiff’s Fifth Amendment rights, the submitted evidence

demonstrates that these Defendants are entitled to summary judgment for at least two

reasons. First, the crux of Plaintiff’s claim is that he was entitled to a hearing to contest

his transfer from Dismas to FDC Miami. Defendants submitted evidence that the BOP

afforded Plaintiff just such a hearing (DE 83-2, ¶ 34), yet Plaintiff argues and offers

evidence that such a hearing never took place (DE # 128, ¶13 and pp. 54-58 of 82).

Whether the hearing occurred or not is of no moment to the instant analysis. The

evidence reflects that Plaintiff was moved from Dismas Charities by the U.S. Marshals

based upon a request by CCM Carlos Rodriquez, a BOP employee, and Plaintiff was

thereafter in the custody of the U.S. Marshals and housed at Miami FDC. (DE # 83-2, Ex.

10 at 50). There are no allegations, much less evidence, that the named Defendants in

this lawsuit, employees of a private corporation, had any control over Plaintiff or the

ability to afford him due process at FDC Miami. The due process violation as articulated

by Plaintiff was therefore a result of actions or inactions taken by the U.S. Marshals and

the Federal Detention Center, who are not named Defendants in this case. Because

Plaintiff has not alleged or offered evidence that once he was removed from Dismas and

placed in FDC that any of the individual Defendants in this action were tasked with the

responsibility of providing the Plaintiff an administrative hearing, or any other due

process proceedings, summary judgment is appropriate in favor of the Defendants.12

12
Similarly, to the extent that Plaintiff is challenging the action of removing him
from Dismas Charities, that action, although based on a report from Dismas Charities,
was undertaken by the U.S. Marshals. The underlying facts upon which this decision
was made–that Plaintiff drove without permission and was in possession of a cell phone
located in the car–have not been challenged; although Plaintiff has offered reasons why

23


Summary Judgment is also appropriate for another reason. Consistent with the

analysis in the Court’s prior Report and Recommendation (DE # 94), Defendants argue

that Plaintiff cannot maintain a claim for violation of the Fifth Amendment because he

does not possess a liberty interest in remaining at a halfway house.13 The Fifth

Amendment of the United States Constitution provides in relevant part that no person

shall be deprived “of life, liberty, or property, without due process of law.” U.S. CONST.

amend. V. Procedural due process generally requires that a person with a

constitutionally protected liberty or property interest receive “notice and an opportunity

to be heard” before the government deprives him of such liberty or property. Wolff v.

McDonnell, 418 U.S. 539, 558 (1974). Thus, with any procedural due process challenge, a

court must first determine whether the injury claimed by the plaintiff is within the scope

of the Due Process Clause. Kirby v. Siegelman, 195 F.3d 1285 (11th Cir. 1999) (citing

Bass v. Perrin, 170 F.3d 1312, 1318 (11th Cir. 1999)).

The Supreme Court has made clear that a prisoner can be deprived of his liberty

such that due process is required if: 1) there is a change in a prisoner's conditions of

confinement that is so severe that it essentially exceeds the sentence imposed by the

court; or, 2) when the state has consistently given a certain benefit to prisoners, via

statute or administrative policy, and the deprivation of that benefit “imposes atypical and

significant hardship on the inmate in relation to the ordinary incidents of prison life.”

he shouldn’t be penalized for those violations, such as his claimed lack of knowledge
that these events constituted violations.
13
Following a lengthy discussion of Fifth Amendment jurisprudence, the Court
concluded in its prior Order that, “although it is unlikely that the Plaintiff will be able to
establish (a liberty) interest, it is premature for the Court to make this determination.”
Order, p. 47 (DE # 93). The Court based that conclusion in part on Defendants’ failure to
argue that Plaintiff lacked a liberty interest.

24


Sandin v. Conner, 515 U.S. 472, 484 (1995).

Thus, this Court must determine whether Plaintiff’s removal from Dismas and

incarceration at a higher custody facility (FDC Miami) imposed on Plaintiff the type of

“atypical, significant deprivation” which created a liberty interest. Sandin, 515 U.S. at

486. The Court finds that it did not.

“(T)he baseline for determining (restraints which constitute the requisite atypical

and significant hardship) is ascertained by what a sentenced inmate may reasonably

expect to encounter as a result of his or her conviction....” Griffin v. Vaughn, 112 F.3d

703, 706 (3rd Cir. 1997). “Sandin does not permit (a federal court) to compare the

prisoner's own life before and after the alleged deprivation. Rather, (the court) must

compare the prisoner's liberties after the alleged deprivation with the normal incidents of

prison life.” Asquith v. Dep’t Corr., 186 F.3d 407, 412 (3rd Cir. 1999) (citing Sandin, 515

U.S. at 485–86). “Since an inmate is normally incarcerated in prison, (the plaintiff's)

return to prison (from institutional confinement in a halfway house) did not impose

atypical and significant hardship on him in relation to the ordinary incidents of prison life

and, therefore, did not deprive him of a protected liberty interest.” Asquith, 186 F.3d at

412.

Based on these authorities, the initial removal of Plaintiff from the halfway house

and his transfer to FDC Miami did not impose “an atypical and significant hardship on

(Plaintiff) in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484. An

inmate is normally incarcerated in prison. Thus, as the Court concluded in Asquith,

Plaintiff's return to prison did not impose atypical and significant hardship on him in

relation to the ordinary incidents of prison life and, therefore, did not deprive him of a

25


protected liberty interest.14 Plaintiff has failed to state a cognizable due process claim

and summary judgment is granted in favor of the Defendants.

7. Plaintiff’s State Law Claims

a. Negligence and Gross Negligence

In Count IV of the second amended complaint, the Plaintiff alleges that the

Defendants were negligent and grossly negligent during his residency at Dismas House

when they assigned him cleaning jobs in violation of his doctor’s orders, prevented his

medical treatment and failed to provide him with, or access to, diabetic-friendly meals

(DE # 101 at 5-6). In addition, the Plaintiff contends that during his residency, he was

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

conditions or his dignity.” In the prayer for relief, in the second amended complaint, the

Plaintiff requests that he be awarded “$500,000 for negligence and gross negligence for

failing to ascertain the medical condition of the Movant even with his complaints of

feeling ill. “ (DE # 101 at 9).

In his Renewed Second Motion for Summary Judgment and Statement of Material

Facts in support of that Motion, the Plaintiff contends that the Defendants had access to

all of his medical records concerning his various medical conditions, and required him to

vacuum, clean windows, and take large garbage bags to the dump despite those

aggravated conditions (DE # 125 at 6, 17). The Plaintiff cites to several documents

including an October 19, 2010, Action Request and a October 15, 2010, letter from the

Plaintiff to the Community Corrections Manager for his contention that he is entitled to

14
Since none of the Defendants are BOP employees, there is no need to
determine whether there would be a due process violation if, as Plaintiff claims, the BOP
violated its regulations and policies and did not afford him a hearing after he was
returned to FDC.

26


summary judgment on this issue (DE ## 125 at 33-35).

In response, the Defendants contend that in the operative complaint the Plaintiff

has failed to allege that he was required to perform the tasks which he was assigned and

argue that the Plaintiff has failed to offer additional support for his claims beyond that

stated in the second amended complaint (DE # 126 at 4, 7). In addition, in their Statement

of Disputed Facts in Opposition to the Plaintiff’s Second Motion for Summary Judgment,

the Defendants assert that the Plaintiff could perform light duty work and that the

Plaintiff’s work and confinement were in accord with his condition (DE # 126-1 at 2).

In the Defendants’ Supplemental Motion for Summary Judgment, the Defendants

contend that they are entitled to summary judgment on the Plaintiff’s negligence and

gross negligence claims because the Plaintiff has failed to state how the Defendants

breached their duty to the Plaintiff and the damages resulting from that breach (DE # 103

at 16). The Defendants further contend that any request that the Plaintiff dust and

vacuum was, by its nature, not negligent, and similarly contend that the refusal to permit

the Plaintiff to receive an unauthorized meal from his wife is not negligent either.

In Florida, an action for negligence requires a duty, a breach of the duty, but for

and proximate cause, and damages. Clay Elec. Co-Op., Inc., v. Johnson, 873 So. 2d 1182,

1185 (Fla. 2003). Gross negligence requires conduct “that was so reckless or wanting in

care that it constituted a conscious disregard or indifference to the life, safety, or rights

of persons exposed to such conduct. West’s F.S.A. § 768.72(2)(b)(2011). Further, Florida

law imposes upon police officers and prison officials a duty to use reasonable care to

ensure the safety of persons within their custody. See generally Hutchinson v. Miller, 548

So. 2d 883 (Fla. 5th DCA 1989); Ferguson v. Perry, 593 So. 2d 273 (Fla. Dist. Ct. App.

1992). This duty is set forth in the Restatement of Torts (Second) § 314A, which

27


recognizes that in custodial and/or incarcerated settings, a special duty exists to protect

the person in custody against unreasonable risk of physical harm, and to provide first aid

if it is known that the person is ill or injured. Ferguson, 593 So. 2d, at 277. Accord United

States v. Stevens, 994 So. 2d 1062, 1068 (Fla. 2008) (citing § 314A of Restatement of Torts

(Second) favorably in context of duties arising out of special relationships).

Although negligence actions often involve factual questions proper for

submission to the jury, a grant of summary judgment is appropriate in negligence cases

where no reasonable jury could conclude that the defendant breached a duty of care

owed to the plaintiff. See, e.g., Daniels v. Prison Health Svcs. Inc., 2007 WL 4287555, *6

(M.D. Fla. Dec. 4, 2007) (granting summary judgment in favor of prison nurse where no

reasonable jury could conclude that she breached a duty of care owed to the plaintiff);

Nobles v. Corrections Corp. of America, 327 Fed. Appx. 838, 840 (11th Cir. 2009)

(affirming grant of summary judgment in favor of corrections company in wrongful death

action where corrections officials turned prisoner over for treatment and medical staff

failed to adequately treat unknown life-threatening infection).

In this case, based upon the second amended complaint, the Plaintiff’s most

recent motion for summary judgment and the Plaintiff’s response to the Defendants’

most recent motion for summary judgment, the gist of the Plaintiff’s argument is that he

was forced to perform physical tasks despite his medical condition and in contravention

to his doctor’s orders while he was a resident at Dismas House, and that the Defendants

were negligent and/or grossly negligent in requiring him to do so. Thus, given that, as

stated above, Florida law imposes a duty upon certain actors to use reasonable care to

ensure the safety of persons within their custody, the undersigned, assumes without

deciding, that the Defendants owed the Plaintiff a reasonable duty of care to insure his

28


safety while he was required to reside at Dismas House.15 However, the Plaintiff’s claims

of negligence and gross negligence still fail because the Plaintiff has pointed to no

evidence in the record to demonstrate that the Defendants breached that duty, or that the

Plaintiff suffered any injuries from that purported breach, and thus no reasonable jury

could conclude that the Defendants were either negligent or grossly negligent in relation

to the Plaintiff and his medical conditions.

First, the Plaintiff has not pointed to any evidence in the record that his doctors

required that he be given no physical assignments, including light duty, due to his

medical conditions. Rather, it is only in the Plaintiff’s letters to the Community

Corrections Manager and Ms. Gispert that the Plaintiff states that he should not be

assigned any work duty (DE ## 125 at 33-35, 128 at 28-37). In addition, the other

correspondence submitted by the Plaintiff reflect that the Defendants attempted to

accommodate the Plaintiff’s medical conditions (DE # 128 at 28-37). Specifically, the

August 10, 2010 letter from Dismas Charities, Inc., which was signed by Defendants

LaShonda Adams and Derek Thomas, reflects that Dismas Charities requested a waiver

of the Plaintiff’s employment requirement based upon his medical conditions (DE # 125

at 30). Further, the Plaintiff has failed to demonstrate that the Defendants were advised

that the Plaintiff was not permitted to perform any physical activity, and has further failed

to demonstrate that the Defendants exposed the Plaintiff to any unsafe conditions,

medical or otherwise, by requiring the Plaintiff to perform menial tasks.

To the extent the Plaintiff contends the Defendants were negligent and grossly

15
Any duty arguably owed by the Defendants under the facts of this case is
distinct from the type of duty arising in either a medical malpractice claim or a medical
negligence claim. See, e.g. Darling v. Palm Beach County Sheriff, 2 So. 3d 368 (Fla. Dist.
Ct. App. 2008).

29


negligent for failing to ascertain his medical condition when he complained of feeling ill,

there is no evidence that the Plaintiff was denied medical treatment by the Defendants, or

that the Defendants did not respond to a request for medical treatment, or otherwise

failed to respond to a medical emergency that the Plaintiff was experiencing. There is no

allegation or evidence that the Defendants failed to provide the Plaintiff with required

medications, would not permit him to attend medical appointments or otherwise

interfered with his medical treatment. Although the Plaintiff alleges that he was denied

diabetic meals, the Plaintiff has failed to articulate or point to support in the record that

failure to provide such meals placed the Plaintiff at an unreasonable risk of harm.

In addition, to the extent that the Plaintiff contends that he was “constantly

terrorized, intimidated, and humiliated without any regard for his medical conditions or

his dignity,” such claims do not sound in negligence and certainly do not relate to any

duty on the part of the Defendants to provide adequate medical attention or reasonable

care to the Plaintiff while he was a resident at Dismas House. Similarly, the record falls

far short of establishing that the Defendants’ conduct was “so reckless or wanting in

care that it constituted a conscious disregard or indifference to the life, safety, or rights

of persons exposed to such conduct,” and therefore the Plaintiff’s claim of gross

negligence fails. Thus, the Plaintiff has failed to demonstrate that the Defendants

breached any custodial duty to him related to his medical conditions while he was

resident in Dismas House.

Further, the Plaintiff has failed to demonstrate what damages or injuries he

suffered as a result of the Defendants’ purported breach. In this regard, notably in the

October 19, 2010 Action Request form submitted by the Plaintiff, the Plaintiff states that

he experiences pain and discomfort in his liver due to being “upset and harassed for the

30


last week.” (DE # 125 at 34). Again, such complaints do not sound in negligence and

further fail to articulate any specific and compensable injury that the Plaintiff suffered.

Simply put, the Plaintiff has failed to establish that a reasonable jury could find that the

Defendants were negligent and/or grossly negligent with regard to the Plaintiff’s medical

conditions, and thus the Defendants are entitled to summary judgment on these claims.

b. Abuse of Process

In Count V of the second amended complaint, the Plaintiff alleges that the

Defendants engaged in abuse of process by failing to follow the proper procedures and

BOP guidelines for transferring a prisoner back to federal prison (DE # 101 at 6).

The tort of abuse of process usually involves “some form of extortion” and

requires that “the defendant made an illegal, improper, or perverted use of process, that

the defendant had ulterior motives or purposes in exercising such illegal, improper, or

perverted use of process, and, that as a result of such action on the part of the

defendant, the plaintiff suffered damage.” S & I Investments v. Payless Flea Market, Inc.,

36 So.3d 909, 917 (Fla. Dist. Ct. App. 2010). This means that in order to show abuse of

process, a plaintiff must demonstrate that the process was used “for an immediate

purpose other than that for which it was designed[.]” If the process was used to

“accomplish the result for which it was intended,” then there is no abuse of process,

even if it was the product of “an incidental or concurrent motive of spite or other

purpose.” Id.

In his Renewed Second Motion for Summary Judgment, the Plaintiff contends that

he is entitled to summary judgment on his abuse of process claim because the

“Defendants have abused their power acting in the name of the State and Federal

Government by torturing the plaintiff.” (DE 125 at 16). Although it is unclear which

31


specific facts the Plaintiff is relying upon to support his abuse of process claim, in his

Statement of Material Facts, the Plaintiff contends that after he was he was sent

“illegally” to FDC Miami, a “group of four Dismas Charities employees visited [him] and

presented him with a one page, home made form, bearing the name of US Federal Prison

charge of Greatest Violation Code 108, signed by Derek Thoms, to justify the illegal

imprisonment.” (DE # 125 at 6).

In their Supplemental Motion for Summary Judgment, the Defendants contend that

they are entitled to summary judgment on the abuse of process claim because the

Plaintiff has failed to point to any evidence to demonstrate that the disciplinary actions

taken by the Defendants were used for any purpose other than to discipline the Plaintiff,

which is exactly the purpose of the disciplinary process (DE # 103 at 18-25). The

Defendants therefore contend, as a matter of law, the Plaintiff’s claim fails.

The Defendants are correct. Assuming the Plaintiff’s allegations regarding the

Defendants’ failure to follow certain disciplinary guidelines and procedures in having the

Plaintiff removed from Dismas House are true, the abuse of process claim fails since the

Defendants invoked the disciplinary process for the purpose for which it was designed--

to address disciplinary violations–even if the Defendants were motivated by “spite or

other purpose” in that process. See S & I Investments, 36 So.3d at 917. The Plaintiff has

therefore failed to establish that he is entitled to summary judgment on this claim and the

Defendants accordingly prevail on the Plaintiff’s abuse of process claim.

c. Malicious Prosecution

In Count VI of the second amended complaint, Malicious Prosecution, the Plaintiff

alleges that the Defendants improperly charged him with introducing hazardous

materials into a correctional facility in order to punish him with the most severe penalty

32


for possessing a cell phone (DE # 101 at 8). He further alleges that the Defendants, in

their search for any reason to have the Plaintiff’s home confinement revoked,

“intentionally mis-indicted Plaintiff, thus constituting the Movant’s claim for malicious

prosecution,” (DE # 101 at 8).

In order to state a claim of malicious prosecution under Florida law, a plaintiff

must prove that: (1) an original criminal proceeding against him was commenced or

continued; (2) the present defendant was the legal cause of that original proceeding; (3)

there was a bone fide termination of the original proceeding in his favor; (4) there was an

absence of probable cause for the original proceeding; (5) the present defendant acted

with malice; and (6) he suffered damages as a result of the original proceeding. Alamo

Rent-A-Car v. Mancusi, 632 So.2d 1352, 1355 (Fla. 1994). The failure of a plaintiff to

establish any one of these six elements is fatal to a claim of malicious prosecution. Id.

In his most recent motion for summary judgment, the Plaintiff contends that he is

entitled to summary judgment on his malicious prosecution claim because he was

declared a fugitive while he was sleeping in his bed at Dismas House, returned to F.D.C.

Miami without any charges levied against him, with his incarceration being conducted

without the knowledge of various officials (DE # 125 at 13). In response, the Defendants

contend that the Plaintiff has failed to provide specific facts as to his claims and note

that his claim for malicious prosecution raised in his First Amended Complaint was

dismissed because it was uncontested that the Plaintiff was not indicted for any crime

(DE # 126 at 5).

The Defendants contend that they are entitled to summary judgment on the

malicious prosecution claim because the Plaintiff has failed to demonstrate that judicial

proceedings were commenced against him that were terminated in his favor (DE # 103 at

33


18-19). The Defendants contend that, on the contrary, the Plaintiff was found to have

violated his release conditions and was properly returned to the Federal Bureau of

Prisons for 81 days. (DE # 103 at 19). In support of this contention, the Defendants rely

upon the Affidavit of Ana Gispert and the documents attached thereto (DE # 83-2). In that

Affidavit, Ms. Gispert states, inter alia, that after the BOP was notified that the Plaintiff

violated Federal Bureau of Prison guidelines by possessing a cell phone and driving a

motor vehicle, the United State Marshals’ Service returned the Plaintiff back to FDC

Miami to complete his sentence (DE # 83-2 at 5). She further states that after he was

returned to FDC Miami, a hearing was held wherein he was found guilty of possessing a

cell phone and driving a vehicle without authorization. Attached to Ms. Gispert’s

Affidavit is a copy of an October 29, 2010 hearing held before a Federal Bureau of

Prisons Discipline Committee regarding charges that the Plaintiff possessed a hazardous

tool (a cell phone) and violated a condition of a community program (by driving a vehicle)

(DE # 83-2 at 51). The Committee concluded that the Plaintiff had violated the BOP’s

code and recommended that the Plaintiff “remain Disciplinary transferred” (DE # 83-2 at

52). In response to the Defendants’ Motion, the Plaintiff states that no such hearing

occurred (DE # 111 at 7).

Based upon the evidence in the record, it is clear that the Plaintiff has failed to

establish a genuine issue of material fact, let alone any facts, to prevail on or maintain

his claim for malicious prosecution. First, the Plaintiff has failed to demonstrate that a

criminal proceeding was commenced against him by the Defendants. Despite the

Plaintiff’s description of the charges leading to his removal from Dismas House as being

“mis-indicted,” there is no evidence in the record that the Plaintiff was ever indicted

related to that removal. In fact, there is no evidence that any criminal proceeding was

34


commenced against the Plaintiff related to his removal from Dismas House. Even if the

October 29, 2010 proceeding before the Discipline Committee of the Bureau of Prisons

could be considered a criminal proceeding, which the Plaintiff denies ever occurred, the

Plaintiff has failed to establish, or even allege, that the proceeding was terminated in his

favor and has failed to establish that there was an absence of probable cause for that

proceeding. As such, the Plaintiff’s claim for malicious prosecution fails, and the

Defendants are entitled to summary judgment on this issue.

IV. PLAINTIFF’S RENEWED SECOND MOTION FOR SUMMARY JUDGMENT

A. Undisputed Facts

On November 2, 2012, Plaintiff filed his motion for summary judgment against

Defendants. Plaintiff’s motion contains a section titled, “Statement of Material Facts,”

which consists of numerous unnumbered paragraphs without citations to supporting

materials in the record. Previously, the Court struck two statements of fact filed in

support of Plaintiff’s first motion for summary judgment because Plaintiff failed to

comply with Local Rules for the United States District Court for the Southern District of

Florida and the Federal Rules of Civil Procedure. See, e.g., Order (DE # 82)(citing S.D.

Fla. L.R. 7.5.(c)(2) and Fed. R. Civ. P. 56(c)(1)(A)). Those Rules require a party’s

statement of material facts filed in support of a motion for summary judgment to consist

of separately numbered paragraphs and contain specific citations to supporting

materials in the record. See S.D. Fla. L.R. 56.1(a)16; Fed. R. Civ. P. 56(c)(1)(A). In striking

Plaintiff’s Statement of Facts, the Court stated:

IF PLAINTIFF'S RE-FILED STATEMENT OF FACTS FAILS TO
COMPLY WITH THE LOCAL RULES, FEDERAL RULES, AND THIS

16
The 2011 revisions to the Local Rules renumbered Local Rule 7.5 to 56.1 and
eliminated unnecessary language.

35


ORDER, THE COURT WILL STRIKE PLAINTIFF'S RE-FILED
STATEMENT OF FACTS AND HIS MOTION FOR SUMMARY
JUDGMENT AND WILL NOT ALLOW PLAINTIFF TO RE-FILE THOSE
PAPERS.

(DE # 82 at 2) (emphasis in original). Moreover, the undersigned warned the parties

thereafter that any evidence in the record upon which the parties intended to rely needed

to be specifically identified (DE # 119 at 14). Despite this admonition, Plaintiff’s

Statement of Facts in his Renewed Second Motion for Summary Judgment fails to

comply with the above-mentioned rules. The factual paragraphs are not numbered, do

not contain citations to the record, impermissibly lump several separate facts together

and, in many instances, contain arguments, not facts. Accordingly, consistent with the

Court’s prior warnings to Plaintiff, the Court will Strike his Statement of Facts and his

Renewed Motion for Summary Judgment. In the alternative, however, the undersigned

concludes that the Motion should be denied on the merits.

B. Legal Analysis

Addressing the merits of Plaintiff’s motion, it should be denied. Essentially, for

the same reasons that the Court found that Defendants were entitled to summary

judgment on Plaintiff’s claims, the Plaintiff’s motion for summary judgment would be

denied on the same grounds. Moreover, Plaintiff utterly failed to comply in any way with

the most basic of requirements to obtain summary judgment. Clark v. Coats & Clark,

Inc., 929 F.2d 604, 608 (11th Cir. 1991) (the movant must do more than file a motion; the

moving party instead has “the initial responsibility of informing the district court of the

basis for its motion, and identifying those portions of the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any,

which it believes demonstrate the absence of a genuine issue of material fact” as to the

36


issues.). Finally, Plaintiff sought summary judgment for claims that he did not assert in

his (Second) Amended Complaint. See, e.g., Pl.’s Mot., DE # 125 at 9-17 (seeking

summary judgment on a nonexistent Fourth Amendment, Eighth Amendment and

intentional infliction of mental distress claims. There is no basis to award summary

judgment on claims that are not part of the operative pleadings in this case.

Accordingly, Plaintiff’s motion is DENIED.

V. CONCLUSION

For the reasons set forth above, it is

ORDERED AND ADJUDGED that the Defendants’ Supplemental Motion for

Summary Judgment (DE # 103) is GRANTED. It is further

ORDERED AND ADJUDGED that Plaintiff’s Renewed Second Motion for

Summary Judgment (DE # 125) is STRICKEN, or alternatively, DENIED.

DONE AND ORDERED in chambers, in Miami, Florida, on March 29, 2013.

_________________________________
ANDREA M. SIMONTON
UNITED STATES MAGISTRATE JUDGE

Copies furnished via CM/ECF to:
Counsel of Record and pro se Plaintiff

37

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