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DEFENDANTS’ RESPONSE BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

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DEFENDANTS’ RESPONSE BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Powered By Docstoc
					Case 1:11-cv-20120-PAS Document 87 Entered on FLSD Docket 12/27/2011 Page 1 of 6



                         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 ADAMS LESHOTA

        Defendants.
  _________________________________________/

                      DEFENDANTS’ RESPONSE BRIEF IN OPPOSITION TO
                       PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

         Pursuant to this Court’s Scheduling Order, Defendants Dismas Charities, Inc., Ana

  Gispert, Derek Thomas and Lashanda Adams, incorrectly identified as Adams Leshota,

  (collectively “Defendants”) by and through their undersigned counsel, pursuant to Federal Rule

  of Civil Procedure 56 and Local Rule 7.5, file their Response Brief in Opposition to Plaintiff’s

  Motion for Summary Judgment and Incorporated Memorandum of Law as follows:

                                        INTRODUCTION

         Plaintiff, a former Federal Inmate, filed a lawsuit against his residential reentry center,

  Dismas, and three of its employees, Gispert, Thomas, and Adams. The Complaint contains 50

  paragraphs of unsupported allegations, four alleged federal theories of recovery, and six alleged

  state law theories of recovery—all arising from his violation of a Bureau of Prison’s condition to

  not drive an automobile or posses a cell phone, which caused him to be transferred from Dismas

  back to a federal prison.
Case 1:11-cv-20120-PAS Document 87 Entered on FLSD Docket 12/27/2011 Page 2 of 6


                                              CASE NO.: 11-20120-CIV-SEITZ/SIMONTON

             SUMMARY OF ARGUMENT IN OPPOSITION TO PLAINTIFF’S MOTION

          Plaintiff was transferred to Dismas’ Dania facility as a transition point from federal

  prison system back to into the community. Dismas, as a residential reentry center, assists

  inmates in employment, counseling, and other matters to allow them to become productive,

  contributing individuals in their families and communities upon release. Due to health issues,

  Plaintiff, after approval from the Federal Bureau of Prisons, was transferred from Dismas’ Dania

  facility to home confinement subject to the terms and conditions of his initial entry into the

  facility as mandated by the Federal Bureau of Prisons.

          These conditions included the Plaintiff’s agreement not to drive without the permission or

  consent of Dismas and not to possess contraband, including cell phones. When the Plaintiff

  drove to Dismas and was found to be in possession of a cell phone in the car, Dismas reported

  Plaintiff’s violations to the Federal Bureau of Prisons. The Federal Bureau of Prisons then had

  the United States Marshall’s Service return the Plaintiff to the Federal Detention Center-Miami,

  where he subsequently served out the last 68 days of his federal prison sentence after the Bureau

  of Prisons independently found Plaintiff guilty of the violations.

          As an inmate still under sentence, the Federal Bureau of Prisons, not the Defendants,

  made all decisions concerning his custodial placement. After his violations of rules while at

  Dismas’ facility, the BOP decided to remove him from the program and he was returned by the

  BOP (via the U.S. Marshall service) to a federal prison to serve out the remainder of his

  sentence. Plaintiff, therefore, fails to state a cause of action and all Defendants must be awarded

  summary judgment.




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Case 1:11-cv-20120-PAS Document 87 Entered on FLSD Docket 12/27/2011 Page 3 of 6


                                             CASE NO.: 11-20120-CIV-SEITZ/SIMONTON



                              STATEMENT OF DISPUTED FACTS

          Defendants filed a separate Statement of Disputed Facts and Affidavit of Ana Gispert

  (Docket 83-2) which is incorporated as though fully set forth herein.

                        ARGUMENT AND CITATION TO AUTHORITY

          1. The Plaintiff cannot maintain any cause of action against any Defendant.

          In opposition to Plaintiff’s Motion for Summary Judgment, Defendants, to avoid

  redundancy, incorporate their Motion for Summary Judgment, Statement of Undisputed Facts

  and Affidavit of Ana Gispert (Docket 83, 83-1 and 83-2) as though fully set forth herein.

  Defendants have raised legal and factual positions that not only rebut Plaintiff’s Motion for

  Summary Judgment, but proof that no genuine issue of fact exists and that the Defendants are

  entitled to Final Summary Judgment as a matter of law.

          2. Since the Plaintiff has failed to appear for depositions, Defendants’ designated
             facts should be taken as established for purposes of all Motions for Summary
             Judgment.

          Defendants have filed a motion to dismiss Plaintiff’s complaint for failing to appear for

  depositions. (Docket 78). If this Court should not dismiss this cause of action, the remedy for

  Plaintiff’s failure to appear at his deposition should be to bar him from contesting the

  Defendants’ material statement of facts filed in both their motion for summary judgment and in

  response to Plaintiff’s motion for summary judgment. Short of dismissal, this is an appropriate

  remedy because it addresses the core problem created by Plaintiff’s defiance.           Because

  Defendants have not been allowed to test the factual merit of Plaintiff’s allegations, Plaintiff




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Case 1:11-cv-20120-PAS Document 87 Entered on FLSD Docket 12/27/2011 Page 4 of 6


                                             CASE NO.: 11-20120-CIV-SEITZ/SIMONTON

  himself should not be entitled to introduce these same allegations either in defense or support of

  summary judgment.

          3. The Plaintiff’s Motion for Summary Judgment is legally and factually
             insufficient.

          The Plaintiff’s motion for summary judgment still lacks material facts. Plaintiff’s

  Statement of Undisputed Facts contains hearsay and unsupported allegations.

          Since the Plaintiff’s Motion fails to comply with Federal Rule of Civil Procedure 56, the

  Motion must be denied.

                                          CONCLUSION

          For the reasons set forth above, the Defendants would move this Court for an Order

  granting all Defendants Final Summary Judgment, denying Plaintiffs Motion for Final Summary

  Judgment. and any further relief the Court deems just and proper.

                                               Respectfully submitted,

                                               EISINGER, BROWN, LEWIS, FRANKEL,
                                               & CHAIET, P.A.
                                               Attorneys for Defendants
                                               4000 Hollywood Boulevard
                                               Suite 265-South
                                               Hollywood, FL 33021
                                               (954) 894-8000
                                               (954) 894-8015 Fax

                                               BY:    /S/ David S. Chaiet____________
                                                      DAVID S. CHAIET, ESQUIRE
                                                      FBN: 963798




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Case 1:11-cv-20120-PAS Document 87 Entered on FLSD Docket 12/27/2011 Page 5 of 6


                                           CASE NO.: 11-20120-CIV-SEITZ/SIMONTON



                                 CERTIFICATE OF SERVICE

         I HEREBY CERTIFY that on the 27th day of December, 2011, I electronically filed the
  foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing
  document is being served this day on all counsel of record or pro se parties identified on the
  attached Service List in the manner specified, either via transmission of Notices of Electronic
  Filing generated by CM/ECF or in some other authorized manner for those counsel or parties
  who are authorized to receive electronically Notices of Electronic Filing.

                               __/s/ David S. Chaiet_______________
                               DAVID S. CHAIET, ESQUIRE
                               Florida Bar No. 963798




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Case 1:11-cv-20120-PAS Document 87 Entered on FLSD Docket 12/27/2011 Page 6 of 6


                                               CASE NO.: 11-20120-CIV-SEITZ/SIMONTON


                                            SERVICE LIST

                          Traian Bujduveanu v. Dismas Charities, Inc., et al.
                             Case No..: 11-20120-CIV-SEITZ/SIMONTON
                        United States District Court, Southern District of Florida


  Traian Bujduveanu
  Pro Se Plaintiff
  5601 W. Broward Blvd.
  Plantation, FL 33317

  Tel: (954) 316-3828
  Email: orionav@msn.com




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DOCUMENT INFO
Description: United States Courthouse,Southern District Of Florida,Traian Bujduveanu v. Dismas Charities,Ana Gispert,Derek Thomas,Lashanda Adams,Mental and Physical Torture at Dismas Charities,Abuse at Dismas Charities,Civil Rights Violations at Dismas Charities,Illegal Search And Seizure at Dismas Charities,Discrimination and Reverse Discrimination at Dismas House,Abuse at Dismas Charities 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 ADAMS LASHANDA Defendants. _________________________________________/ PLAINTIFF TRAIAN BUJDUVEANU’S SECOND SET OF INTERROGATORIES TO DEFENDANTS ANA GISPERT, DEREK THOMAS AND LASHANDA ADAMS � � Plaintiffs, Traian Bujduveanu, Pro Se, pursuant to the Federal Rules of Civil Procedure, propound the CM/ECF - Live Database - flsd 09/09/2011 18:13 AMS, MEDIATION, REF_DISCOV U.S. District Court Southern District of Florida (Miami) CIVIL DOCKET FOR CASE #: 1:11-cv-20120-PAS Bujduveanu v. Ginspert et al Assigned to: Judge Patricia A. Seitz Referred to: Magistrate Judge Andrea M. Simonton Cause: 28:1346 Tort Claim Plaintiff Traian Bujduveanu represented by Traian Bujduveanu 5601 W Broward Blvd. Plantation, FL 33317 954-316-3828 PRO SE Date Filed: 01/12/2011 Jury Demand: Plaintiff Nature of Sui CM/ECF - Live Database - flsd 13/09/2011 14:31 AMS, MEDIATION, REF_DISCOV U.S. District Court Southern District of Florida (Miami) CIVIL DOCKET FOR CASE #: 1:11-cv-20120-PAS Bujduveanu v. Ginspert et al Assigned to: Judge Patricia A. Seitz Referred to: Magistrate Judge Andrea M. Simonton Cause: 28:1346 Tort Claim Plaintiff Traian Bujduveanu represented by Traian Bujduveanu 5601 W Broward Blvd. Plantation, FL 33317 954-316-3828 PRO SE Date Filed: 01/12/2011 Jury Demand: Plaintiff Nature of Suit CM/ECF - Live Database - flsd 16/09/2011 17:07 AMS, MEDIATION, REF_DISCOV U.S. District Court Southern District