UNITED STATES DISTRICT COURT

SOUTH ERN DISTRICT O F FLO RIDA

CA SE NO. II-ZOIZO-CIV -SEITZ/SIM ON TON
TM IAN BUJDUVEANU
Plaintiff,
V.
DISMAS CHARITIES, lNC., et al.,
Defendants.
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ORDER AFFIRMING AND ADOPTING MAGISTM TE'S REP-ORT AND
RECOM M ENDATION. OVERRULING PLAINTIFF AND DEFENDANTS'
l OBJECTIONS
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ALLOW ING PLAINTIFF LEAVE TO AM END AND REFERRING
PENDING M OTIONS TO M AGISTRATE JUDGE
1 On June 12, 2009, Plaintiff Traian Bujduveanu (tplaintiff ' or CtBujduveanu'') pled guilty
under 18 U.S.C. j 371 to conspiracy to violate the lnternational Emergency Economic Powers
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Act and the At'ms Export Control Act. This Court committed Bujduveanu to the custody of the
United States Bureau of Prisons (t(BOP'') to be imprisoned for a term of thirtpfive (35) months.
On July 10, 2010, the BOP assigned Bujduveanu to a halfway house operated by Defendant
Dismas Charities, lnc. (1$Dismas''), who, for medical reasons, placed him on home confinement
and required him to report to the halfway house once a week. The allegations of the Complaint
concem the incidents occurring during the week of October 13, 2010. After Dismas employees
located a cellular telephone in Bujduveanu's car, he was ordered to return to confinement at the
halfway house for a period of three weeks. A few days after returning to the halfway house, a
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Dismas employee, Defendant Derek Thomas, allegedly had the U.S. Marshals remove
Bujduveanu and incarcerate him at the Federal Detention Center in Miami for 81 days. (
Bujduveanu's Amended Complaint seeks $3.6 million in damages for Defendants' violation of :
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his constitutional rights (1St, 4th 5th 8* and 14th Amendments) and for state law violations (false
arrest, false imprisonment, malicious prosecution, etc.). Defendants moved to dismiss (DE-261,
which the Court referred to Magistrate Judge Andrea Simonton for a Report and
Recommendation (DE-43J. Magistrate Judge Simonton issued a comprehensive sixtpsix page
Report (DE-94j recommending that the Court dismiss the Amended Complaint and allow
Bujduveanu an opportunity to amend some of his claims.l The matter is currently before the
Court on both Bujduveanu's (DE-96) and the Defendants' (DE-95) objections to Magistrate
Judge Simonton's Report. For the reasons set forth below, the Court will ovemzle both parties'
objections, aftirm and adopt the Report and Recommendation, and allow Bujduveanu leave to
mnend his pleadings consistent with the Report and Recommendation and this Order.
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Bujduveanu has set forth ten objections to Magistrate Judge Simonton's Report, which
BUJDUVEANU'S O BJECTIONS
the Court will address seriatim. He objects to the recommendation to dismiss his claims for
falure to state a plausible claim for relief He does not object to the recommendation that his
Bivens claim against Dismas Charities and the fvcn- ighth Amendment medical indifference
claims against the individual Defendants be dismissed with prejudice.
A. FOURTH AMENDMENT
Bujduveanu first objects to the recommendation to dismiss his Fourth Amendment claim.
Relying on United States v. Matlock, 415 U.S. 164 (1974) and other decisions, Bujduveanu
lBujduveanu's claim under the Double Jeopardy Clause, the Bivens claim against Dismas
Charities, Inc. and the claims under the Eighth Amendment based upon indifference to the need for
medical treatment against Defendants Ana Gispert, Derek Thomas and Lashanda Adams are aIl
dismissed with prejudice.
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argues that liprobationary status does not convert a probationer's family into second class citizens
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These people are not stripped of their right of privacy because they may be living with a
probationerl.l'' Pl.'s Obj., p. 4. These authorities, however, are irrelevant to the instant case
because Bujduveanu was not a Cprobationer'' during the relevant time frame - he was a federal
prisoner who had not completed his tenn of imprisonment. In addition, to the extent that
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I Bujduveanu seeks to hold Defendants Thomas, Ana Gispert and Lashanda Adams liable under
the Fourth Amendment for the acts of their subordinate employees tmder a theory of respondeat
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l superior, see /t@ , the Court rejects that contention. See Ashcro? v. lqbal, 556 U.S. 662, , 129
S.Ct. 1937, 1948-49 (2009) (sGovernment offcials may not be held liable for unconstitutional l
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conduct of their subordinates under a theory of respondeat superior.'' ). Bujduveanu's first
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objection is overruled.
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B. FIRST AM ENDMENT RETALIATION CLAIM
Magistrate Judge simonton recommended dismissing Bujduveanu's First Amendment . !
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1 h failed to t'allege that any of the actions taken against him by Defendants were claim because e
because of the exercise of free speech.'' In his objections, Bujduveanu merely posits that he
requested and was denied the ability to attend service at a Romanian Orthodox Church located in
Pembroke Pines. This information, however, fails to address the shortcomings of the Amended
i B jduveanu failed to allege in his Amended Complaint noted by Magistrate Judge S monton. u q
C laint or explain in his Objection, that any of the actions taken by Defendants were a result i 0mp
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of his exercise of free speech. The Court must therefore overrule the second objection. l
C. EIGHTH A MENDMENT; DELIBERATE INDIFFERENCE (
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In response to M agistrate Judge Simonton's recom mendation to dism iss the Eighth q
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Amendment claim, Bujduveanu identifies additional allegations not set forth in a pleading or
considered by Magistrate Judge Simonton. An objection to a Report and Recommendation does
not provide an opportunity to supplement pleadings - that can only be accomplished through
filing an Amended Complaint. This objection is overruled.
D. FIFI'H AMENDMENT - DUE PROCESS
Bujduveanu's objection to the recommendation to dismiss with leave to nmend the Due
Process claim ignores almost the entirety of M agistrate Judge Simonton's analysis of the issue.
Nothing in his objection contradicts Magistrate Simonton's analysis. A party filing objections to
a magistrate's report and recommendation, however, must specitically identify those tindings
objected to. United States v. Schultz, 565 F.3d 1353, 136 l (1 1th Cir. 2009). Frivolous,
conclusive, or general objections need not be considered by the district court. fJ. The Court
must therefore overrule this objection. To the extent that Bujduveanu amends his due process
claim, he must make clear whether he alleges a denial of due process from Defendants removing
him from home confinement and/or from removing him from the halfway house to FDC M iami.
E. DOUBLE JEOPARDY
Magistrate Judge Simonton also recommended that Bujduveanu's Double Jeopardy claim
be dismissed with prejudice.She concluded that Plaintiff had failed to allege that tkhis transfer to
FDC or any discipline that he may have received related to any violations at the halfway house
were predicated upon any criminal violations that would implicate the double jeopardy clause.''
Report, p. 55. Rather than contradict this analysis, Bujduveanu's objection provides support for
Magistrate Judge Simonton's conclusion. Bujduveanu makes clear that no criminal prosecution
occurred nor were Ctsanctions'' imposed against him pursuant to various sections of the Code of
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Federal Regulations. See Obj., pp. 10-1 1.The Supreme Court has made clear that the Double
Jeopardy Clause tprotects only against the imposition of multiple criminal punishments for the
same offense.'' Hudson v. Unitedstates, 522 U.S. 93, 99 (lgg7ltemphasis in original). Because
Plaintiff concedes that no subsequent criminal prosecution occurred here, the Court agrees that
dismissal with prejudice is proper.
F. FALSE ARREST AND IMPRISONMENT
ln his objection to Magistrate Judge Simonton's recommendation to dismiss his state law
tort claims, Bujduveanu repeats an argument fotmd throughout his papers - that the Defendants
Sftrumped up'' the charges against him so that he would be rettu-ned to federal prison. In repeating
this factual argument, Bujduveanu necessarily neglects to address the legal basis for Judge
Simonton's recommendation - Plaintiff failed to allege that the De#ndants arrested him. Instead,
the Complaint provides that Bujduveanu ktwas removed from the Dismas Charities premises by
U.S. Marshal Agentsg.l'' Compl., !38 (DE-141. Bujduveanu also repeatedly and erroneously
views himself as a parolee. See, e.g., Obj. p. 12. Bujduveanu had not completed his sentence
and thus calmot be considered a parolee.M oreover, parole no longer exists in the Federal
system. The Court agrees with M agistrate Simonton's conclusion that this claim must also be
dism issed.
G. M SAULTAND BATTERY
Bujduveanu concedes that he has not properly pled a claim for assault and battery. Pl.'s
Obj., p. 13. He argues, however, that the he cannot plead such a claim because the Defendants
failed to provide him a BP-9 fonn to document the assault and battery. Id The unavailability of
a BP-9 form to document an assault and battery has no impact whatsoever on Bujduveanu's
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ability to properly plead facts to support a claim for assault and battery in his Amended
Complaint. This claim must also be dism issed.
H . M ALICIOUS PROSECUTION
Bujduveanu objects to the dismissal of his malicious prosecution claim because
tr efendants intentionally mis-indicted'' him in order to deprive him of tthe privilege of parole.''
P1.'s Obj., p. 15. Again, Bujduveanu was not a parolee. Nor is there any allegation in this case
that the Defendants, or any other entity, indicted Bujduveanu for any crime. Attempting to
advance factual inaccuracies provides no basis to overrule M agistrate Judge Simonton's thorough
Report and Recomm endation.
1. ABIJSE OF PROCESS
Magistrate Judge Simonton also recommended that the Court dismiss Bujduveanu's
abuse of process claim for failing to state a claim upon which relief can be granted. In response,
Bujduveanu %challenges the Defendants to produce documents'' to support their rendition of the
facts. Pl.'s Obj., p. 16. Plaintiff's demand, however, is a matter for summaryjudgment, not a
motion to dismiss. At this stage of the proceedings, the Court is concerned with the legal
sufficiency of the pleadings, not whether documents exist to support a party's position. The
allegations of Bujduveanu's pleadings are inadequate and nothing the Defendants might produce
has any impact on that legal conclusion. Accordingly, the Court affirms and adopts the
recommendation to dismiss Bujduveanu's abuse of process claim.
J. NEGLIGENCE AND GROSS NEGLIGENCE
In response to the recommendation to dismiss his negligence and gross negligence claims
for failure to allege a duty breached by Defendants, Bujduveanu asserts in his objection that
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Defendants had a duty to comply with his Doctor's directive that Bujduveanu not perform
manual labor. P1.'s Obj., pp. 17-18.Bujduveanu argues that Defendants breached this duty
when they required him to Sdust'' some part of the halfway house.1d Although Bujduveanu
provides no elaboration on his Doctor's directive, it requires a significant expansion of this
Court's understanding of the term tmanual labor'' to conclude that Bujduveanu's doctor forbid
him from performing a task, such as dusting, that requires so little exertion. In any event,
Bujduveanu never alleged that he actually dusted anything, only that he was ordered to do so.
Assuming for the moment that Defendants had a duty not to require him to perform itmanual
labor,'' such a duty did not prevent them from requesting he perform such tasks. At the bare
minimtlm, Bujduveanu needed to allege that he actually performed the requested tasks before he
could begin to state a claim under this theory. Because no such allegations are included in his
pleadings, the recommendation to dismiss this claim is affirmed.
DEFENDANTS' OBJECTIONS
Defendants agree with M agistrate Judge Simonton's recommendation to grant the motion
to dismiss, but they object to allowing Bujduveanu an opportunity to re-plead. Defs.' Obj., pp 2-
3 (DE-95). Defendants argue that discovery is closed and summary judgment motions have been
fully briefed. While the Court is sensitive to the concerns voiced by Defendants, Bujduveanu
should be given an opportunity to re-plead. The case management schedule set forth below
should accomplish the Court's dual goals of allowing Bujduveanu an opportunity to re-plead and
preserving the parties' prior efforts on the summaryjudgment motions. Accordingly, it is
ORDERED THAT
(1) Magistrate Judge Simonton's Report (DE-941 is AFFIRMED and ADOPTED, and
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incorporated by reference into this Court's Order.
(2) Defendants' Motion to Dismiss (DE-26) is GRANTED. Plaintiff Traian
Bujduveanu's claim under the Double Jeopardy Clause, the Bivens claim against
Dismas Charities, lnc. and the claims under the Eighth Amendment based upon a
deliberate indifference to a serious need for medical treatment against Defendants
Ana Gispert, Derek Thomas and Lashanda Adams are a11 DISM ISSED W ITH
PREJUDICE. The remaining claims are DISMISSED W ITHOUT PM JUDICE
with leave to tile an amended pleading as set forth below.
(3) Plaintiff Traian Bujduveanu's Objections (DE-96q are OVERRULED.
(4) Defendants' Objections (DE-951 are OVERRULED.
(5) Plaintiff is granted leave to tile an nmended pleading consistent with Judge
Simonton's Report and Recommendation and this Order. Plaintiff must file any
such Amended Complaint no later than M arch 28, 2012. Faillzre to comply with
that deadline, or if Plaintiff decides not to amend, will result in the Court
dismissing this case with prejudice. lf Plaintiff files an amended pleading,
Defendants shall submit their answer by April 4, 2012.Based on the allegations
of the amended pleading, the parties shall file supplements to their existing
motions for summary judgment by April 11, 2012 to address any new issues. No
additional discovery will be permitted.
(6) The pending motions (motions for summaryjudgment (DE-72, 83J, motion to
strike (DE-781, motion for heming (DE-791 and motion to strike response (DE-
931) are all referred to Magistrate Judge Andrea Simonton for a Report and
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Recommendation. Any supplements to the motions for sllmmaryjudgment are
also referred to M agistrate Judge Sim onton.
(7) The parties shall confer and notify the Court no later than March 21, 2012,
whether they consent to final disposition of this matter by M agistrate Judge
Simonton. Attached hereto is the form the parties should execute and fble by that
date.
z/ -' DONE AND ORDERED in Miami
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Florida, this day of arch, 2012.
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PATRICIA A. El Z
cc: a1l parties UNITED STATES DISTRICT JUDGE
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(Rev. 10/2002) Notice and Consent to Disposition of a Civil Case by a U.S. Magistrate Judge
UNITED STATES DISTRICT COURT
Southern District of Florida
Case Number:
Plaintiff
V.
Defendant
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l NOTICE OF RIGHT TO CONSENT TO DISPOSITION OF A CIVIL CASE BY A UNITED STATES
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r M AGISTRATE JUDGE - CONSENT TO EXERCISE OF JURISDICTION BY A UNITED STATES
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p MAGISTM TE JUDGE
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! In accordance with the provisions of 28 U.S.C. 636(c), the undersigned parties voluntarily consent to have a United States
I Magiskate Judge conduct all further proceedings in the case
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including the trial and order the entry of final judgment. (
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i Sienature Date
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ORDER OF REFERENCE '
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IT IS HEREBY ORDERED that this case be referred to the Honorable ,
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United States Magistrate Judge, for alI further proceedinp and the entry of judgment in accordance with 28 U.S.C. E
636(c), Fed.R.CiV.P. 73 and the foregoing consent of the parties.
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Dated this day of , 20 . @
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United States District Judge '
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NOTE: RETURN THIS FORM TO THE CLERK OF THE COURT ONLY IF ALL PARTW S HAVE t
CONSENTED 0N THIS FORM TO THE EXERCISE OF JURISDICTION BY THE UNITED t
STATES MAGISTRATE JUDGE

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