Table of Citations Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

Massachusetts Correctional Institution v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 2773, 86 L.Ed.2d 356 (1985). Parenti v. Ponte, 727 F.2d 21, 25 (1st Cir.1984). The Restatement (2nd) of Torts, 31. Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992). Reed, 77 F.3d at 1054; Torres, 966 F.Supp. at 1365. Doby v. DeCrescenzo, 1996 U.S. Dist. LEXIS 13175, *40 (E.D. Pa. Sept. 9, 1996). Chatham v. Adcock, (N.D. Ga. Sept. 28, 2007). Allen v. McMorris, No. 4:06-cv-810 SNL, 2007 WL 172564, at *2 (E.D. Mo. J Enigwe v. Zenk, No. 03-CV-854 (CBA), 2006 WL 2654985, at *4 (E.D.N.Y. Sept. 15, 2006) (unpublished) an. 19, 2007). Torres v. Superintendent of Police, 893 F.2d 404, 409 (1st Cir.1990). Schwartz v. Public Adm'r of Bronx County, 24 N.Y.2d 65, 298 N.Y.S.2d 955, 961, 246 N.E.2d 725, 729 (1969). Morales v. Ramirez, 906 F.2d 784, 788 (1st Cir.1990). 28 C.F.R. 547.20. Estelle v. Gamble,429 U.S. 97, 103-04, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Lozano v. Smith,718 F.2d 756, 768 (5th Cir.1983).

Wright v. Rushen, 642 F.2d 1129, 1132-33 (9th Cir. 1981)(citation omitted). 682 F.2d at 1246-47 Fox v. Custis, 372 S.E.2d 373, 375 (Va. 1988). Mathes v. Ireland, 419 N.E.2d 782, 784 (Ind.Ct.App.1981). United States v. Matlock, 415 U. S. 164, 171 (1974). Schneckloth v. Bustamonte, 412 U. S. 218 (93 SC 2041, 2048, 36 LE2d 854) (1973). United States v. Smith, 395 FSupp. 1155, 1156-57 (W.D.N.Y. 1975). Inman v. State, 124 Ga. App. 190 (2) (183 SE2d 413) (1971)). Enigwe v. Zenk, No. 03-CV-854 (CBA), 2006 WL 2654985, at *4 (E.D.N.Y. Sept. 15, 2006) (unpublished). Flagg Bros., Inc. v. Brooks,436 U.S. 149, 155, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). Rendell-Baker v. Kohn,457 U.S. 830, 842, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982). Skelton v. Pri-Cor, Inc.,963 F.2d 100, 102 (6th Cir.), cert. denied, 503 U.S. 989, 112 S.Ct. 1682, 118 L.Ed.2d 398 (1992) Lemoine v. New Horizons Ranch & Ctr.,990 F.Supp. 498, 502 (N.D.Tex.1998). Wright v. Rushen, 642 F.2d 1129, 1132-33 (9th Cir. 1981)(citation omitted). 682 F.2d at 1246-47.

Statement of Facts 1. On July, 28, 2010, with the approval of CCM Director Carlos Rodriguez the Plaintiff/Appellant was transfer from Colman Low Correctional Facility to Dismas Charities, Inc. halfway house, located in Dania, Florida. 2. Defendant/Appellee Dismas Charities, Inc., is non-profit corporation 501(c)(3) organization, who operates 28 halfway houses in 13 states that contract from the U.S Government, of which Co-defendants Ana Gispert, Derek Tomas and Lashanda Adams are employees of Dismas Charities, Inc. 3. Defendant/Appellee Dismas Charities house has limited independent disciplinary discretion, thus giving it discretion over minor of prohibited acts. Any serious sanctions required approval of CCM, USPO and Community Sanctions representatives. 4. Upon arrival at Dismas Charities facility, Plaintiff/Appellant signed the acknowledgement of all regulations as well as the receipt of a Dismas Charities Handbook. However, the Plaintiff/Appellant did not receive a hard copy, as there were none available. 5. The Plaintiff/Appellant provided the appropriate staff members copies

of driver license, driving history from the Division of Motor Vehicles in Tallahassee, vehicle registration, and valid insurance, in compliance with the terms and conditions necessary to obtain permission to operate a motor vehicle during supervision. Be that as it may, the reason for which the Plaintiff/Appellant was not approved to drive, as contended by the Defendants, is unknown even today. 6. The Plaintiff/Appellant provided the appropriate staff members copies of all medical records indicating the severity of his medical conditions and any doctor recommendations concerning program requirements for manual labor and work outside of the facility. 7. During his residency at Dismas House, the Plaintiff/Appellant was constantly terrorized, intimidated, and humiliated without any regard for his medical conditions or his dignity, in that he was forced to do cleaning jobs when in fact in violation of his doctors orders, even going as far as to prevent his medical treatment, adding insult to injury. When asked, who should have the last say on this matter, the doctor or the federal prison'', Derek Thomas answered, We have already had this conversation. Here the Bureau of prison rules and not the doctor. 8. The Defendants/Appellee openly denied the Plaintiff/Appellants

request to attend Religious Services at a Romanian Orthodox church on Sundays, located 16 minutes by car (9.5 miles) from the Dismas Charities halfway house, under the pretext of Federal Guidelines. The Plaintiff/Appellants research has shown such guidelines do not exist and the Federal Government remains neutral regarding religious practice or distances to and from a religious institution at a halfway house, thus constituting a violation of the Plaintiff/Appellants rights to religious freedom and the free exercise thereof, and further violating the United States stance on separation of church and state. 9. In violation of his Title VII protections, the Plaintiff/Appellant was discriminated against and harassed constantly, by the Defendants/Appellees, because he was a foreigner, spoke English with an accent, practiced Greek-Orthodox Religion and he was white. Similarly situated residents at Dismas house were not treated alike. 10. On September 28, 2011, the Plaintiff/Appellant was approved by the CCM Director Carlos Rodriguez, to be transferred to home confinement, due to severe medical problems. The USPO Office was advised and agreed on Plaintiff/Appellant's home confinement transfer, requiring the Plaintiff/Appellant to report once a week to Dismas halfway house. 11. On October 13, 2010, the Plaintiff/Appellant drove his family

vehicle to Dismas halfway house for his bi-weekly report . 12. An illegal search was conducted of the vehicle that Plaintiff/Appellant drove and property was removed from the vehicle without the knowledge of the Plaintiff/Appellant and without the Plaintiff/Appellant being present at the search. Defendants asserted that a cellular telephone, a phone charger and a packet of cigarettes were found in the glove compartment of the car and confiscated. Data and evidence from the surveillance cameras that contained information regarding the illegal search and seizure, was deliberately destroyed by the Defendants. 13. Having a cellular telephone in the car, does not represent a violation for prisoners on home confinement as halfway house rules and regulations are not the same as home confinement rules and regulations. Plaintiff/Appellant does not smoke, and operating a motor vehicle without prior approval represents a minor violation, and does not require incarceration. 14. As a result of this incident, the Plaintiff/Appellant was given three separate violations, on different dates, for the same incident that occurred in the same day, time and place, without Due Process of Law. Not all copies of the three written violations were released as requested by the discovery.

15. On October 20, 2010, at 6:30 A.M., while sleeping in his bed at Dismas House, the Plaintiff/Appellant was arrested by two U.S. Marshall agents and transported to F.D.C. Miami, without any charges levied against him and without Due Process Law. 16. The incarceration was done without the knowledge of USPO and CCM Director, Carlos Rodriguez, as he did not sign the papers for the incarceration, thus making it clear that the Defendants engaged in a campaign of erasing evidence and fabricating documents in order to cover up any suspicion of the events. The Plaintiff/Appellant is aware that the following documents have been fabricated. 17. While incarcerated at F.D.C. Miami, no charges were ever levied against the Plaintiff/Appellant and no investigation of any kind was carried out against him. No federal employee of F.D.C. wanted to get involved with his case, they were aware of the covert and illegal actions of the Defendant. Federal Department of Corrections Miami Counselor

Price and Unit Manager Harrison, under the strict suggestions of the F.D.C. warden, attempted in a few instances to contact the office of CCM Director, Carlos Rodriguez, to no avail. 18. The Plaintiff/Appellant was released from F.D.C. Miami on January 03, 2011.

Statement of the Case 1. On January 12, 2011, Appellant/Plaintiff , Traian Bujduveanu, filed MOTION for Return of Property against Dismas Charities, Inc., Ana Ginspert (Docket Entry #1). 2. On March 29th, 2011 Appellan Appellant/Plaintiff , Traian Bujduveanu, filed AMENDED COMPLAINT of Damages against Dismas Charities, Inc., Ana Ginspert, Derek Thomas, Adams Leshota (Docket Entry #14). 3. On May 4th, 2011, Defendants/Appellees filed MOTION to Dismiss Amended Complaint (Docket Entry #26). 4. On May 24th, 2011 Appellant/Plaintiff , Traian Bujduveanu, filed MOTION to Strike MOTION to Dismiss and Incorporated Memorandum of Law. 5. On May 25th, 2011 Defendants/Appellees filed RESPONSE to Motion re MOTION to Strike (Docket Entry #35). 6. On June 6th, 2011, Judged from lower tribunal entered ENDORSED ORDER granting Plaintiff's Motion to Strike Document from the Docket (Docket Entry #40). 7. On August 5th, 2011 Appellant/Plaintiff , Traian Bujduveanu filed
8

MOTION for the Production of Documents and Electronically Stored Information, Under Rule 34 by Traian Bujduveanu. The Judge of lower tribunal entered GENERAL ORDER ON DISCOVERY OBJECTIONS. denying, without prejudice, Plaintiff's Motion for the Production of Documents and Electronically Stored Informations, Under Rule 34 (Docket Entries #50, 51, and 52). 8. On August 30, 2011 Appellant/Plaintiff , Traian Bujduveanu filed MOTION to Compel Production of Documents and Electronically Stored Information (Docket Entry #53). The Defendants/Appellees replied with NOTICE of Compliance with Mediation Order (Docket Entry #55). On September 9th, 2011, Defendants/Appellee filed RESPONSE in Opposition MOTION to Compel Production of Documents and Electronically Stored Informations (Docket Entry #56). Appellant/Plaintiff , Traian Bujduveanu filed MOTION to Compel Second Request for Production of Documents, First and Second Set of Interrogatories. On September 28th the Defendants/Appellees filed RESPONSE in Opposition re MOTION to Compel Second Request forProduction of Documents, First and Second Set of Interrogatories (Docket Entry # 57, 58, 59). 9. After being unable to compel discovery, and mediation ending in an

impasses Appellant/Plaintiff , Traian Bujduveanu filed NOTICE of Motion for Summary Judgment (Docket Entry #70). 10. On December 16th, 2011 Defendant/Appellees responded with a MOTION for Summary Judgment (Docket Entry #83). 11. On March 29th 2013, the Judge from the lower tribunal entered an ORDER granting Defendants' Motion for Summary Judgment; deny Plaintiff's Motion for Summary Judgment, and entered a FINAL JUDGMENT in favor of the Defendants against the Plaintiff (Docket Entry #131 and 132).

10

Argument(s) Issue #1: Whether the lower tribunal erred in granting Defendants Motion for Summary Judgment, by overlooking Defendants/Appellees Apparent Abuse of Process? Abuse of process is a cause of action in tort arising from one party making a malicious and deliberate misuse or perversion of regularly issued court process (civil or criminal) not justified by the underlying legal action. Under Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), a prisoner facing a disciplinary hearing that may result in the loss of a liberty interest must receive "(1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and to present documentary evidence in his defense; (3) a written statement by the fact finder of the evidence relied on and the reasons for the disciplinary action." Superintendent, Massachusetts Correctional Institution v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 2773, 86 L.Ed.2d 356 (1985), citing Wolff, 418 U.S. at 563-67, 94 S.Ct. at 2978. Even though Smith did not have a liberty interest in remaining at Gardner, he was entitled to these procedural safeguards because he risked the loss of liberty entailed in isolation time, a sanction which he ultimately
11

received. See Parenti v. Ponte, 727 F.2d 21, 25 (1st Cir.1984). The Defendants have an obligation to comply with all statutes, regulations and guidelines from the National Archives and Records Administration. The CCM office based in Miami reports and abides by the rules and regulations set by the Federal Bureau of Prison. Accordingly, the CCM office has to use proper Federal Forms each time a prisoner is concerned. All documents must be documented in the Sentry system to be fully in compliance with all statutes, regulations and guidelines. The abuses of process of are as follows:
1.

No copies of the Transfer Orders (BP-S399.058) nor Transfer Reciept (BP-821.051) were ever provided to the Plaintiff/Appellant, because they did not and do not exist to this day.

2. The transfer of a halfway house resident back to the Federal Prison it is NOT done thru a Memorandum. The US Federal Government requires that an approved form (BP-S399.058) and (BP-821.051), is used for any action taken by a federal employee. In this case, the request MUST be placed in the SENTRY SYSTEM to the US Marshal, and then other Transfer and custody forms must be filled out with the appropriate dates and signatures, and a copy must be given to the transferred

12

inmate. This has not taken place because charges or investigations against the Plaintiff/Appellant, were never levied by the Federal Bureau of Prisons. This was a gross Fabrication with a premeditated cover-up. 3. The Letter from Derek Thomas to Carlos Rodrigues, which is a fabricated document also, it has no date. Without a date, this letter is not an official document. Even more disturbing is the fact that Authority to transfer federal inmates from non-federal facilities to federal intuitions is delegated to CCMs. 4. The letter from Derek Thomas to offender Traian Bujduveanu, a fabricated document, also does not have a date. 5. The fabricated letter, allegedly written by Ana Gispert on October 20, 2010, states that Mr. Bujduveanu's adjustment to the program has been poor, as witnessed by his inability to follow all of the rules and regulations set forth by Dismas Charities and the Bureau of Prisons. Yet all other documents state that he is cooperative and that he did all community transition courses, and that he will no longer benefit from the halfway house. Which leads the Plaintiff/Appellant and the court to question whether alleged minor violations of warrant

13

such a drastic change in opinion, and moreover, whether this change in opinion was done as matter of fact or simply to remove Plaintiff/Appellant from the facility. 6. In a letter from Ana Gispert to Bobbie Lowery, dated January 5, 2011 she is instructing him to make certified documents stating that they have attempted to return the property to the family of the Plaintiff/Appellant. At this time the property of the Plaintiff/Appellant is still in the Derek Thomas office and under his control. She is practically instructing them to lie and make false documents, as my family will attest to the fact that they were never contacted to retrieve my property. 7. The application of a violation Code 108 Possession, Manufacture, or introduction of a hazardous tool (Tools most likely to be used in an escape or escape attempt or to serve as a weapon capable of doing of doing serious bodily harm to others; or those hazardous to institutional security or personal safety, to include that of a cell phone. First and foremost, a cell phone unless used a detonation device cannot be seen as threat to personal or institutional safety. At best this alleged violation should have been charged as a Code 305, Possession

14

of anything not authorized for retention or receipt by the inmate, not issued to through regular channels. However, given the fact that the Plaintiff/Appellant was on home confinement, even this charge would not be a perfect fit given the fact that those on home confinement are afforded additional rights and liberties as they are not subject to 24 hour monitoring by facility. Ultimately, his charges were trumped up to such that he would be charged with a violation that might cause his removal from the program rather than one that is more in line with the Plaintiff/Appellants alleged actions that took place that day. Given the harmless nature of a cell phone, and its inability to enable an inmate to escape from a correctional facility, as a tool used for serious bodily harm, it is clear that there is some underlying malicious intent behind the use of this violation code as opposed to one that was more appropriate. We therefore argue that the trial court erred in failing to deny the Appellees Motion for Summary Judgment, and would humbly request that Order Granting said Summary Judgment overturned.

15

Issue #2: Whether the lower tribunal erred in granting Defendants Motion for Summary Judgment, by overlooking Plaintiffs /Appellants claims for False Arrest and Imprisonment? The tort of false imprisonment or false arrest contains the following elements: The Restatement (2nd) of Torts, 31, reads: An actor is subject to liability to another for false imprisonment if: (a) he acts intending to confine the other or a third person within boundaries fixed by the actor, and (b) his act directly or indirectly results in such a confinement of the other, and (c) the other is conscious of the confinement or is harmed by it. False imprisonment has four elements: 2. intent, 3. actual confinement in boundaries not of the plaintiff's choosing, 4. a causal link, and 5. Awareness of the confinement.

16

The Defendant/Appelleee argued that one who is imprisoned couldnt be falsely arrested, and furthermore that it was the US Marshals at the direction of the Federal Bureau of Prisons. However, it was the direct and indirect actions of the Defendant that lead to the confinement of the Plaintiff/Appellant. Although, the Defendant was not the one that physically placed the Plaintiff/Appellant in specific confined area and held him against his will, their acts were the causal act that lead to the Plaintiff/Appellant being placed in prison. Causation is, of course, a required element of a false imprisonment. See Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992). A probation/ parole officer need not actually use force to detain a probation/parolee illegally. Although false imprisonment usually follows false arrest, false imprisonment may take place even after a valid arrest. However, a police officer may be held to have initiated a criminal proceeding if he knowingly provided false information to the prosecutor or otherwise interfered with the prosecutors informed discretion. See, Reed, 77 F.3d at 1054; Torres, 966 F.Supp. at 1365. In such cases, an intelligent exercise of the ... [prosecutors] discretion becomes impossible, and a prosecution based on the false information is deemed procured by the person giving the false information. However, a private citizen may be held liable for false arrest under 1983 if he or she caused the plaintiff to be
17

arrested by virtue of false statements he or she made to the police. Doby v. DeCrescenzo, 1996 U.S. Dist. LEXIS 13175, *40 (E.D. Pa. Sept. 9, 1996) We therefore argue that the trial court erred in failing to deny the Appellees Motion for Summary Judgment, and would humbly request that Order Granting said Summary Judgment overturned. Issue #3: Whether the lower tribunal erred in granting Defendants Motion for Summary Judgment, by overlooking Plaintiffs /Appellants claims for Assault and Battery? The Defendants/Appellee maked the claim that they are entitled to summary judgment as the Plaintiff has not provided any facts to support allegations of assault and battery. It is clear that no such record of the assaults and battery that took place as the Defendants refused to provide the Plaintiff/Appellant with and means of documenting said actions. The procedures established by the Bureau of Prisons require that appeals to the General Counsel shall include copies of Forms BP-9, BP-10, and their responses. BOP Program Statement (P.S.) 1330.7, p 7(b). The only exception to this requirement is where the inmate has not yet received a response. P.S. 1330.7, p 6(6). You must use up all administrative solutions before suing in federal court. It would be an anomalous result, indeed, if prison officials could foreclose prison inmates from filing civil rights

18

lawsuits in federal court simply by depriving them of the means to fulfill a mandatory prerequisite to doing so, Chatham v. Adcock, (N.D. Ga. Sept. 28, 2007). Allen v. McMorris, No. 4:06-cv-810 SNL, 2007 WL 172564, at *2 (E.D. Mo. Jan. 19, 2007) (unpublished) (holding allegation that prisoner could not get grievance policy or forms barred summary judgment for defendants). Anna Gisperts admission of not having provided BP-9 forms to Plaintiff/Appellant, provides the Plaintiff/Appellant no means of documenting the abuses of process, abuses of Constitutional rights and civil liberties on the part of the Defendants, and even goes to the extent of providing the Plaintiff/Appellant very little material documentation of his experiences at the halfway house (Exhibit #5 to this motion). However, it was their intention all along to deny the Plaintiff/Appellant an opportunity to ever have a legitimate opportunity to defend himself both in their nonexistent in-house judiciary proceedings, when he faced the Federal Bureau of Prisons prior to being sent back to prison, and currently in his civil action against the Defendants. Enigwe v. Zenk, No. 03-CV-854 (CBA), 2006 WL 2654985, at *4 (E.D.N.Y. Sept. 15, 2006) (unpublished) denying summary judgment to defendants where plaintiff asserted his repeated efforts to obtain forms were fruitless.
19

We therefore argue that the trial court erred in failing to deny the Appellees Motion for Summary Judgment, and would humbly request that Order Granting said Summary Judgment overturned. Issue #4: Whether the lower tribunal erred in granting Defendants Motion for Summary Judgment, by overlooking Plaintiffs /Appellants claims for Malicious Prosecution? The Defendants argued that since the Plaintiff/Appellant has not, and cannot establish the elements of malicious prosecution, especially the key elements of the commencement of judicial proceeding on the plaintiff, by the defendant and termination of the in favor of the Plaintiff, that the Defendants should have been awarded summary judgment. The common law tort of malicious prosecution originated as a remedy for an individual who had been subjected to a maliciously instituted criminal charge. All federal claims for malicious prosecution are borrowed from the common law tort ... [which] imposes liability on a private person who institutes criminal proceedings against an innocent person without probable cause for an improper purpose. The federal claim under [42 U.S.C.] section 1983 for malicious prosecution differs from the state civil suit in that it requires that state officials acting 'under color of law' institute the criminal proceedings against the plaintiff and thereby deprive him of rights secured

20

under the Constitution." Torres v. Superintendent of Police, 893 F.2d 404, 409 (1st Cir.1990). Yet again to combat the Defendants/Appellees claim that they did not initiate prosecution against the Plaintiff, it is undeniable that the US Marshalls, and Division of Corrections would not have even been aware of any sort of alleged violation, had it not been for the request that were made by the Defendants. Yet again, it was the direct and indirect actions of the Defendant, which lead to the prosecution, and subsequent confinement of the Plaintiff/Appellant. Section 28(5)(c) states that issue preclusion does not apply if the party sought to be precluded, as a result of the conduct of his adversary or other special circumstances, did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action. Specifically, there are various factors which should enter into a determination whether a party has had his day in court [including] such considerations as ... the availability of new evidence... Schwartz v. Public Adm'r of Bronx County, 24 N.Y.2d 65, 298 N.Y.S.2d 955, 961, 246 N.E.2d 725, 729 (1969). Two aspects of the Danners preliminary hearing demonstrates that they were not afforded a full and fair opportunity to litigate whether

21

probable cause existed for their arrest. First, the determination of probable cause was based on the false testimony of Dawn Farris at preliminary hearing. At trial she recanted virtually all the key accusations necessary to conclude that a crime had occurred and that the Danners were likely to have committed it. Second, there were key facts that were not and could not have been discovered before the preliminary hearing despite the district attorney's open file policy. Until cross examination of the other sales clerk at preliminary hearing, no one knew that a customer, Melody Winn, had been present when the alleged theft took place. Nor was it known that the precise time of the alleged theft had been recorded by the store's cash register on the customer's check. Winn's testimony at trial, that she had seen nothing out of the ordinary during her purchase, was key to the Danners defense and to the not- guilty verdict. Anna Gisperts admission of not having provided BP-9 forms to Plaintiff/Appellant, provides the Plaintiff/Appellant no means of documenting the abuses of process, abuses of Constitutional rights and civil liberties on the part of the Defendants, and even goes to the extent of providing the Plaintiff/Appellant very little material documentation of his experiences at the halfway house. Although, "Malicious prosecution does not per se abridge rights secured by the Constitution." Morales v. Ramirez,
22

906 F.2d 784, 788 (1st Cir.1990). In articulating the elements of a malicious prosecution claim under 42 U.S.C. Sec. 1983, we have held that "the complaint must assert that the malicious conduct was so egregious that it violated substantive or procedural due process rights under the Fourteenth Amendment." Torres, 893 F.2d at 409. "[F]or substantive due process purposes, the alleged malicious prosecution must be conscience shocking." Id. at 410. "For procedural due process purposes ... the plaintiff usually must show the alleged conduct deprived him of liberty by a distortion and corruption of the processes of law, i.e., corruption of witnesses, falsification of evidence, or some other egregious conduct resulting in the denial of a fair trial.... In addition, the plaintiff must show there was no adequate state post deprivation remedy available to rectify the harm. Given the fact that the Plaintiff/Appellant was subject to policies and procedures of the both Dismas House Charities Correctional procedures, and had an obligation to exhaust all administrative procedures available to him, and more importantly that he was not given the opportunity to do so, it should be clear to this court that conscience shocking element of proving malicious prosecution has been met. First and foremost, the Defendants actions denied the Plaintiff/Appellant the ability to show the how alleged conduct deprived him of liberty, by a distortion and corruption of the
23

processes of law, i.e., falsification of evidence, and other egregious conduct namely the denial of documents necessary to ensuring due process, resulting ultimately in the denial of a fair trial Plaintiff/Appellant. We therefore argue that the trial court erred in failing to deny the Appellees Motion for Summary Judgment, and would humbly request that Order Granting said Summary Judgment overturned. Issue #5: Whether the lower tribunal erred in granting Defendants Motion for Summary Judgment, by overlooking Plaintiffs /Appellants claims for Negligence and Gross Negligence? The Plaintiff/Appellant provided the appropriate staff members of the halfway house with copies of all medical records indicating the severity of his medical conditions and any doctor recommendations concerning program requirements for manual labor and work outside of the facility. During his residency at Dismas House, the Plaintiff/Appellant was constantly terrorized, intimidated, and humiliated without any regard for his medical conditions or his dignity, in that he was forced to do cleaning jobs when in fact in violation of his doctors orders, even going as far as to prevent his medical treatment, adding insult to injury. Furthermore, he was not provided meals that were diabetic friendly, and was given disciplinary action for incident where is wife was delivering food as a result of him not

24

receiving adequate nutrition from the halfway house. This violates Department of Correction Policies in which, it is mandated that each institutions food service program offers nutritionally balanced, appetizing meals. Special Food and Meals, 28 C.F.R. 547.20 and Program Statement 4700.05, Food Services Manual, provide that medical diets be available to inmates who require such diets. In addition, inmates with religious dietary requirements may apply for the religious diet program, designed to address the dietary restrictions of a variety of different religions. See Program Statement 5360.09, Religious Beliefs and Practices. The Plaintiff/Appellants research has found however that, a prison official violates a prisoner's Eighth Amendment rights, and is deemed negligent if he/she is deliberately indifferent to the prisoner's serious medical needs. See Estelle v. Gamble,429 U.S. 97, 103-04, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Deliberate indifference encompasses only unnecessary and wanton infliction of pain repugnant to the conscience of mankind. See id.at 104-06, 97 S.Ct. 285. "Subjective recklessness," as used in the criminal law, is the appropriate test for deliberate indifference. To incur liability under 1983, an individual must be personally involved in the deprivation of a person's constitutional rights. See Lozano v. Smith,718 F.2d 756, 768 (5th Cir.1983)
25

In analyzing claims of Eighth Amendment violations, the courts must look at discrete areas of basic human needs. As we have recently held, " '(A)n institution's obligation under the eighth amendment is at an end if it furnishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety.'" Wright v. Rushen, 642 F.2d 1129, 1132-33 (9th Cir. 1981)(citation omitted). 682 F.2d at 1246-47."In a negligence case, neither the issue of proximate cause nor the sovereign immunity defenses become germane until it has been established that a defendant owes to a plaintiff a duty of care that has been breached." Fox v. Custis, 372 S.E.2d 373, 375 (Va. 1988). However, in Estate of Mathes v. Ireland, 419 N.E.2d 782, 784 (Ind.Ct.App.1981), the court held that under 319, [f]or the duty to exist there must therefore not only be an actual taking charge of the third person, there must also be a knowledge of the likelihood that he will cause bodily harm. The Defendants cannot make the claim

that they were unaware of the Plaintiff/Appellants medical condition as they were provided all of his medical documentation, and moreover, they are unable to skate around their duty to exercise care for the Plaintiff/Appellants wellbeing, in that they are obligated by Department of Corrections standards, human rights standards as well as constitutional standards.
26

We therefore argue that the trial court erred in failing to deny the Appellees Motion for Summary Judgment, and would humbly request that Order Granting said Summary Judgment overturned. Issue #6: Whether the lower tribunal erred in granting Defendants Motion for Summary Judgment, by overlooking Plaintiffs /Appellants claims for violation of his First Amendment Rights? First Amendment -Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. The Defendant makes the claim that according to Federal Bureau of Prison guidelines, the Plaintiff/Appellant was not allowed to attend a church outside of 5 miles from the facility. However in Dismas charities and division of Prison Guidelines state explicitly that, You will be able to attend weekly church services, as approved by your Counselor, maximum of three hours per week, including travel. Church must be within (5) miles of the facility. (Church Bulletin and 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. Keeping this exception in mind, and even with the Plaintiff/Appellant
27

making an open declaration of his religion of choice being Greek Orthodox, and further making the case that the closest church is 9.5 miles away, the Defendants denied the Plaintiff/Appellants request to attend his church services. The Plaintiff/Appellants research has shown such guidelines do not exist and the Federal Government remains neutral regarding religious practice or distances to and from a religious institution at a halfway house, thus constituting a violation of the Plaintiff/Appellants rights to religious freedom and the free exercise thereof, and further violating the United States stance on separation of church and state. We therefore argue that the trial court erred in failing to deny the Appellees Motion for Summary Judgment, and would humbly request that Order Granting said Summary Judgment overturned. Issue #7: Whether the lower tribunal erred in granting Defendants Motion for Summary Judgment, by overlooking Plaintiffs /Appellants claims for violation of his Fourth Amendment Rights? Fourth Amendment-The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

28

An illegal search was conducted of the vehicle that Plaintiff/Appellant drove and property was removed from the vehicle without the knowledge of the Plaintiff/Appellant and without the Plaintiff/Appellant being present at the search. Defendants asserted that a cellular telephone, a phone charger and a packet of cigarettes were found in the glove compartment of the car and confiscated. Data and evidence from the surveillance cameras that contained information regarding the illegal search and seizure, was deliberately destroyed by the Defendants. Having a cellular telephone in the car, does not represent a violation for prisoners on home confinement as halfway house rules and regulations are not the same as home confinement rules and regulations. Plaintiff/Appellant does not smoke, and operating a motor vehicle without prior approval represents a minor violation, and does not require incarceration. "When the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that the permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.' United States v. Matlock, 415 U. S. 164, 171 (1974).

29

The Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force. For, no matter how subtly the coercion was applied, the resulting 'consent' would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed.' Schneckloth v. Bustamonte, 412 U. S. 218 (93 SC 2041, 2048, 36 LE2d 854) (1973)]." United States v. Smith, 395 FSupp. 1155, 1156-57 (W.D.N.Y. 1975). It is my position that a defendant's submission to warrantless searches and seizures should not be the price of probation. While a probationer's right of privacy may be justifiably diminished during the period of probation (see Inman v. State, 124 Ga. App. 190 (2) (183 SE2d 413) (1971)), "[p]robationary status does not convert a probationer's family, relatives and friends into 'second class' citizens. . . . These people are not stripped of their right of privacy because they may be living with a probationer or [s]he may be living with them." State v. Fogarty, supra at 151. The Supreme Court of Montana, the only court in the country to address the ramifications of the warrantless search condition of probation on third parties living with a probationer, concluded that a search warrant based on probable cause must be obtained before a probationer's residence

30

may be searched "so that the legal interests of innocent third persons can be adequately protected. . . ." We therefore argue that the trial court erred in failing to deny the Appellees Motion for Summary Judgment, and would humbly request that Order Granting said Summary Judgment overturned. Issue #8: Whether the lower tribunal erred in granting Defendants Motion for Summary Judgment, by overlooking Plaintiffs /Appellants claims for violation of his Fifth and Fourteenth Amendment Rights? 5th Amendment- No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. The Double Jeopardy Clause includes three distinct constitutional guarantees: (1) protection against a second prosecution for the same offense after an acquittal; (2) protection against a second prosecution for

31

the same offense after a conviction; and (3) protection against multiple punishments for the same offense. As a result of the alleged violation, the Plaintiff/Appellant was given three separate violations, on different dates, for the same incident that occurred in the same day, time and place, without Due Process of Law. Not all copies of the three written violations were released as requested by the discovery. On October 20, 2010, at 6:30 A.M ., while sleeping in his bed at Dismas House, the Plaintiff/Appellant was arrested by two U.S. Marshall agents and transported to F.D.C. Miami, without any charges levied against him and without Due Process Law. On October 20, 2010, at 6:30 A.M ., while sleeping in his bed at Dismas House, the Plaintiff/Appellant was arrested by two U.S. Marshall agents and transported to F.D.C. Miami, without any charges levied against him and without Due Process Law. The incarceration was done without the knowledge of USPO and CCM Director, Carlos Rodriguez, as he did not sign the papers for the incarceration, thus making it clear that the Defendants engaged in a campaign of erasing evidence and fabricating documents in order to cover up any suspicion of the events. The Plaintiff/Appellant in addition to sanctions levied upon him by the halfway house, he was also sentenced to service an additional 81 days in federal incarceration.

32

Fourteenth Amendment-Section 1.All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. In violation of his Title VII protections and 14th Amendment, the Plaintiff/Appellant was discriminated and harassed constantly, by the Defendants, because he was a foreigner, spoke English with an accent, practiced Greek-Orthodox Religion and he was white. Similarly situated residents at Dismas house were not treated alike. We must again emphasize the fact that Anna Gisperts admission of not having provided BP-9 forms to Plaintiff/Appellant, provides the Plaintiff/Appellant no means of documenting the abuses of process, abuses of Constitutional rights and civil liberties on the part of the Defendants, and even goes to the extent of providing the Plaintiff/Appellant very little material documentation of his experiences at the halfway house. The Plaintiff/Appellant again asserts that, it was their intention all along to deny the Plaintiff/Appellant an opportunity to ever have a legitimate opportunity
33

to defend himself both in their nonexistent in-house judiciary proceedings, when he faced the Federal Bureau of Prisons prior to being sent back to prison, and currently in his civil action against the Defendants. Again we, bring the courts attention to Enigwe v. Zenk, No. 03-CV-854 (CBA), 2006 WL 2654985, at *4 (E.D.N.Y. Sept. 15, 2006) (unpublished) denying summary judgment to defendants where plaintiff asserted his repeated efforts to obtain forms were fruitless. We therefore argue that the trial court erred in failing to deny the Appellees Motion for Summary Judgment, and would humbly request that Order Granting said Summary Judgment overturned. Issue #9: Whether the lower tribunal erred in granting Defendants Motion for Summary Judgment, by overlooking Plaintiffs /Appellants claims for violation of his Fifth and Fourteenth Amendment Rights? Eighth Amendment- Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.To state a claim under 28 U.S.C. 1983, a plaintiff must allege facts tending to show that: (1) he has been deprived of a right secured by the Constitution or federal law, and (2) the deprivation was caused by a person or persons acting under color of state law. See Flagg Bros., Inc. v. Brooks,436 U.S. 149, 155, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). The United States Supreme Court has

34

held that where a private party has exercised powers that are "traditionally the exclusive prerogative of the state," the private party may be considered a state actor under 1983. Rendell-Baker v. Kohn,457 U.S. 830, 842, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982). Concluding that the maintenance of a prison system has "traditionally [been] the exclusive prerogative of the state," courts have held that when a state contracts with a private corporation to run its prisons, the private prison employees become subject to 1983 suits. See Skelton v. Pri-Cor, Inc.,963 F.2d 100, 102 (6th Cir.), cert. denied, 503 U.S. 989, 112 S.Ct. 1682, 118 L.Ed.2d 398 (1992); see also Lemoine v. New Horizons Ranch & Ctr.,990 F.Supp. 498, 502 (N.D.Tex.1998) (private employees of residential treatment center licensed by State of Texas subject to 1983 suits). Again, as noted in our discussion of the Defendants instances of blatant negligence, the Plaintiff/Appellant provided the appropriate staff members of the halfway house with copies of all medical records indicating the severity of his medical conditions and any doctor recommendations concerning program requirements for manual labor and work outside of the facility. During his residency at Dismas House, the Plaintiff/Appellant was constantly terrorized, intimidated, and humiliated without any regard for his medical conditions or his dignity, in that he was forced to do cleaning jobs

35

when in fact in violation of his doctors orders, even going as far as to prevent his medical treatment, adding insult to injury. Furthermore, he was not provided meals that were diabetic friendly, and was given disciplinary action for incident where is wife was delivering food as a result of him not receiving addicaquate nutrition from the halfway house. When asked, who should have the last say on this matter, the doctor or the federal prison'', Derek Thomas answered, We have already had this conversation. Here the Bureau of prison rules and not the doctor. In analyzing claims of Eighth Amendment violations, the courts must look at discrete areas of basic human needs. As we have recently held, " '(A)n institution's obligation under the eighth amendment is at an end if it furnishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety.'" Wright v. Rushen,642 F.2d 1129, 1132-33 (9th Cir. 1981)(citation omitted). 682 F.2d at 1246-47.

Accordingly the Plaintiff/Appellant should be awarded summary judgment.

Conclusion
36

The trial court misapplied the law and committed reversible errors by Granting the Appellees Motion for Summary Judgment without addressing the key factors addressed in the aforementioned brief. We humbly request that Order Granting said Summary Judgment be overturned.

Certificate of Service

37

I HEREBY CERTIFY that a true and correct copy of the foregoing was delivered via U.S. Mail to the individuals and entities listed below on this _____ day of April 2013. ______________________________ Signature Traian Bujduveanu Pro Se Plaintiff/Appellant 5601 West Broward Boulevard Plantation, Florida 33317 Phone: (954) 663-7768 Dismas Charities, Inc. 141 N.W. 1St Avenue Dania, FL 33004-2835 Ana Gispert Dismas Charities, Inc. 141 N.W. 1St Avenue Dania, FL 33004-2835 Derek Thomas Dismas Charities, Inc. 141 N.W. 1St Avenue Dania, FL 33004-2835 Lashanda Adams Dismas Charities, Inc. 141 N.W. 1St Avenue Dania, FL 33004-2835 David S. Chaiet Esquire Attorney for Defendants 4000 Hollywood Boulevard Suite 265-South Hollywood, FL 33021

38

39