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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 Plaintiffs 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 Plaintiffs 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 Plaintiffs 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

Although the original motions for summary judgment, which were pending at the time the first Amended Complaint was dismissed, were denied without prejudice, the Court entered an Order which stated that the parties need not refile the evidence submitted in support of those motions (DE # 119 at 13-14). The parties were cautioned, however, that they must include citations in their motions and memoranda which direct the Court to the evidence in the record they wished the Court to consider (DE # 119 at 14). 3

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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 partys 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 plaintiffs causes of action, the defendants 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 partys case. Compania de Elaborados de Caf 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 plaintiffs 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 nonmovant; 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 Defendants Supplemental Motion for Summary Judgment, the Court considers all of the evidence in the light most favorable to the Plaintiff.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 Plaintiffs own Affidavit, as well as those supported by appropriate citations to other evidence in the record (DE # 75). It goes without saying, however, that his legal conclusions are not 5

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1.

The Circumstances Surrounding Plaintiffs 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. 08CR-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 centers 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. Dismas is a private non-profit corporation known as a Community Corrections Center (CCC) Contractor. Id. at 5. The Court will identify where an exhibit can be located by stating the page number of the docket entry. For example, Defendants label the document entitled Home Confinement Special Condition as Exhibit 6 and it is page 39 in Docket Entry 83-2. The Court will pinpoint cite to docket entry page for this exhibit for ease of reference. 6
4 3

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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). Plaintiffs acknowledgment of that Contraband List provides: I understand that if I am found to be in possession of any item on this list, the item will be confiscated from me and disposed of by Dismas Charities staff. I also understand that if I am found to be in possession of any item on this list I will be subject to disciplinary action. (Gispert Aff., DE 83-2, Ex.1 at 31). On August 10, 2010, Defendants Adams and Thomas sent a letter to Carlos Rodriguez, the Community Corrections Manager at the BOP, requesting that the employment requirement be waived for Plaintiff based on several specified chronic medical conditions (DE # 125, Ex. 3, at 30). On September 10, 2010, Plaintiff signed a Department of Justice, Federal Bureau of Prison Conditions of Home Confinement Form (Gispert Aff., DE # 83-2, 6; Ex. 5 at 38). Plaintiff agreed on the form that he would not drive a motor vehicle without approval of a Community Corrections Manager (CCM) (Gispert Aff., DE # 83-2, Ex. 5 at 38). Ana Gispert , the Director of Dismas, never authorized or approved Plaintiff to drive a motor 7

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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 Plaintiffs 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 Plaintiffs 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. Marshals 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 Plaintiffs 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

The Affidavit of Defendant Gispert attaches copies of BOP records which document that a hearing was held at FDC Miami regarding the violations which resulted in his transfer from Dismas to FDC (DE # 83-2 at 34 and Ex. 11 at 51-62). Plaintiff contends that there was no such hearing, and that if a hearing had been held, that fact would appear in the BOP SENTRY records he received (DE # 111 at 19). Plaintiff appears to assert that the documents were fabricated (DE # 114 at 3, 5). 10

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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. Plaintiffs 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 (Plaintiffs) home. (DE # 111, Ex. 6 at 53). Defendant Adams also denied this request noting that Plaintiff needed to find a place of worship within 5 miles of (his) home. (DE # 111, Ex. 6 at 53). There is no evidence in the record regarding any further steps taken by Plaintiff to

11

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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. Plaintiffs 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 Courts 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 Plaintiffs federal constitutional claims against Dismas have already been dismissed with prejudice, the Defendants first argument is correct. As the undersigned previously determined, Plaintiff is unable to pursue his constitutional claims against that entity since the Supreme Court has unequivocally held that a private prison is not liable under Bivens. (DE # 94 at 15) (citing Malesko, 534 U.S. at 61). Therefore, there are no constitutional claims remaining in this case against Dismas to award summary judgment in favor of Defendants. Defendants motion is 12

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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 Plaintiffs allegations that the individual Defendants are federal, not state, actors, summary judgment is appropriate on Plaintiffs claim that Defendants Ana Gispert, Derek Thomas, and LaShonda Adams violated his rights under the Fourteenth Amendment. 3. Plaintiff Cannot Maintain a Title VII Claim

To the extent Plaintiff seeks to assert a Title VII claim against these Defendants, that claim is meritless. Title VII of the Civil Rights Act, 24 U.S.C. 2000e et seq, relates only to employment discrimination. See Alvarez v. Royal Athletic Dev., Inc., 610 F.3d 1253, 1264 (11th Cir. 2010). Title VII prohibits an employer from discriminating against an employee with respect to compensation and the terms, conditions and privileges of her employment-on the basis of sex, including pregnancy, childbirth and related medical reasons. See 42 U.S.C. 2000e-2(a)(1), 2000e(f). There is nothing in the record to suggest that Plaintiff, a federal prisoner housed at Dismas, should be considered the 13

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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 Circuits 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 Courts 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 Courts 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 Courts prior discussion of this very issue only serves to underscore the inappropriateness of Defendants request. As such, the Court must reject the Defendants rationale for summary judgment 14

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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

In addition, the undersigned notes that Defendants have not challenged the existence of a Bivens remedy for violations of the free exercise clause of the First Amendment; and, therefore the undersigned assumes that liability under Bivens extends to such claims. Neither the United States Supreme Court nor the Eleventh Circuit Court of Appeals have expressly decided this issue. See Reichle v. Howard, 132 S. Ct. 2088, 2093 n.4 (2012); Walden v. Centers for Disease Control and Prevention, 669 F.3d 1277, 1285 n.3 (11th Cir. 2012). 15

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5.

Defendants Have Not Unreasonably Burdened Plaintiffs 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 Plaintiffs 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 Plaintiffs 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 prisoners 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 Plaintiffs First Amendment claim. As set forth below, Defendants are entitled to summary judgment on Plaintiffs 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

A community corrections center such as Dismas is a form of prison. See Asquith v. Dept. 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 prisoners 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

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 persons 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 Plaintiffs 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 5355). 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 (Plaintiffs) 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 Plaintiffs last request

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to attend church services beyond the five mile radius unreasonably burdened Plaintiffs 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 fivemile 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 Plaintiffs 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

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. Plaintiffs 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 Plaintiffs 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 Plaintiffs 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 Plaintiffs 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

Thus, even if there was sufficient evidence that Plaintiffs 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 Plaintiffs First Amendment claim.11 6. Summary Judgment is Appropriate on Plaintiffs Fifth Amendment Claim

Plaintiffs 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 Plaintiffs 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 Plaintiffs 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. Plaintiffs 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 Plaintiffs Fifth Amendment claim for

To the extent that Plaintiff intertwines an equal protection claim with his First Amendment claim, asserting that other residents of Dismas Charities were permitted to attend church services outside the five-mile limitation, Plaintiff has failed to adduce any evidence of specific individuals who were permitted to do so; therefore, this assertion is not further addressed. 22

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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 Plaintiffs Fifth Amendment rights, the submitted evidence demonstrates that these Defendants are entitled to summary judgment for at least two reasons. First, the crux of Plaintiffs 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

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 madethat Plaintiff drove without permission and was in possession of a cell phone located in the carhave not been challenged; although Plaintiff has offered reasons why 23

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Summary Judgment is also appropriate for another reason. Consistent with the analysis in the Courts 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 shouldnt be penalized for those violations, such as his claimed lack of knowledge that these events constituted violations. 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 Plaintiffs 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. Dept Corr., 186 F.3d 407, 412 (3rd Cir. 1999) (citing Sandin, 515 U.S. at 48586). 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

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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. Plaintiffs 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 doctors 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

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 Plaintiffs Second Motion for Summary Judgment, the Defendants assert that the Plaintiff could perform light duty work and that the Plaintiffs 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 Plaintiffs 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. Wests 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

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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 Plaintiffs most recent motion for summary judgment and the Plaintiffs response to the Defendants most recent motion for summary judgment, the gist of the Plaintiffs argument is that he was forced to perform physical tasks despite his medical condition and in contravention to his doctors 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

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safety while he was required to reside at Dismas House.15 However, the Plaintiffs 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 Plaintiffs 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 Plaintiffs 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 Plaintiffs 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

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 Plaintiffs 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 Plaintiffs 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 Plaintiffs claim fails. The Defendants are correct. Assuming the Plaintiffs 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 violationseven 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 Plaintiffs 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 Plaintiffs home confinement revoked, intentionally mis-indicted Plaintiff, thus constituting the Movants 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. Gisperts 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 BOPs 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 Plaintiffs 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 Plaintiffs claim for malicious prosecution fails, and the Defendants are entitled to summary judgment on this issue. IV. PLAINTIFFS RENEWED SECOND MOTION FOR SUMMARY JUDGMENT A. Undisputed Facts

On November 2, 2012, Plaintiff filed his motion for summary judgment against Defendants. Plaintiffs 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 Plaintiffs 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 partys 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 Plaintiffs 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 The 2011 revisions to the Local Rules renumbered Local Rule 7.5 to 56.1 and eliminated unnecessary language. 35
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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, Plaintiffs 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 Courts 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 Plaintiffs motion, it should be denied. Essentially, for the same reasons that the Court found that Defendants were entitled to summary judgment on Plaintiffs claims, the Plaintiffs 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, Plaintiffs 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 Plaintiffs 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

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