Defendants' Response Brief Opposing Summary Judgment

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

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF FLORIDA

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

TRAIAN BUJDUVEANU,

Plaintiff,

vs.

DISMAS CHARITIES, INC., ANA GISPERT,
DEREK THOMAS and ADAMS LESHOTA

Defendants.
_________________________________________/

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

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

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

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

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

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

INTRODUCTION

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

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

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

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

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

back to a federal prison.



SUMMARY OF ARGUMENT IN OPPOSITION TO PLAINTIFF’S MOTION

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

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

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

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

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

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

facility as mandated by the Federal Bureau of Prisons.

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

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

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

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

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

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

of Prisons independently found Plaintiff guilty of the violations.

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

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

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

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

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

summary judgment.

862734:1:LOUISVILLE 2



STATEMENT OF DISPUTED FACTS

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

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

ARGUMENT AND CITATION TO AUTHORITY

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

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

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

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

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

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

entitled to Final Summary Judgment as a matter of law.

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

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

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

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

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

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

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

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




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

summary judgment.

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

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

Statement of Undisputed Facts contains hearsay and unsupported allegations.

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

Motion must be denied.

CONCLUSION

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

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

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

Respectfully submitted,

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

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




CERTIFICATE OF SERVICE

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

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




SERVICE LIST

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

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

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


Defendants' Response Brief Opposing Summary Judgment

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Defendants' Response Brief Opposing Summary Judgment