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					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
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   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


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   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).

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   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


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   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

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                  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.

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   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

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   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


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   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


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   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).

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   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


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   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

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   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

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   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

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   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).

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                   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
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   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
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   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
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   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


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   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
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          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
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   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.

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   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

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          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
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   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
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   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
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   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
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   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
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   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
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   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


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   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


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   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


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   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


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   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


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   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.

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          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



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   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

				
DOCUMENT INFO
Description: United States District Court,Southern District of Florida,Case N0, 11-20120-civ,Traian Bujduveanu v. Dismas Charities,Inc.,Ana Gispert,Derek Thomas,Lashanda Adams