Report and Recomandation Re:Defendant's Motion To Dismiss

8/3/2019 Report and Recomandation Re:Defendant's Motion To Dismiss

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The Plaintiffs Response was originally filed as a Motion to Strike the Defendants1

Motion to Dismiss (DE # 33), but it is being treated as a response to the DefendantsMotion to Dismiss (DE # 36).

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDA

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

TRAIAN BUJDUVEANU,

Plaintiff,

v.

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

Defendants.

/

REPORT AND RECOMMENDATION RE: DEFENDANTS MOTION TO DISMISS

Presently pending before the Court is the Defendants Motion to Dismiss (DE #

26). The Plaintiff filed a Response (DE # 33), to which he also added two Supplements

(DE ## 38, 41). The Defendants filed a Reply (DE # 39). This motion has been referred to1

the undersigned Magistrate Judge by the Honorable Patricia A. Seitz, United States

District Judge (DE # 43). The undersigned has thoroughly reviewed the record and, for

the reasons stated herein, recommends that the Defendants Motion to Dismiss (DE # 26)

be GRANTED.

I. BACKGROUND

The claims in this case stem from actions which occurred while Plaintiff Traian

Bujduveanu was completing the service of a sentence in the custody of Defendant

Dismas House Charities, Inc. (Dismas House or Dismas), and primarily concern the

actions taken by the staff members of Dismas House in seizing his property, and

Case 1:11-cv-20120-PAS Document 94 Entered on FLSD Docket 02/07/2012 Page 1 of 66


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Plaintiff initially spelled this Defendants name incorrectly as Ginspert. This2

misspelling was corrected in the Amended Complaint, described infra, and therefore theCourt uses the correct spelling in this Report and Recommendation.

Defendant Lashanda Adams was originally referred to as Adams Leshota in3

the Plaintiffs Amended Complaint (DE # 14); however, she has been referred toexclusively as Lashanda Adams in the Plaintiffs Response (DE # 33), his supplement tohis Response (DE # 38), and the Defendants have also indicated that her correct name isLashanda Adams (DE ## 26 at 1; 39 at 1). The Court uses the correct spelling in thisReport and Recommendation.

2

disciplining him; and the Plaintiffs ultimate removal from Dismas House and placement

into the custody of the Bureau of Prisons at the Federal Detention Center (FDC) in

Miami. The Plaintiff initially filed this case as a Motion for Return of Property against

Dismas Charities and Ana Gispert, claiming that a family car he had driven to Dismas2

Charities had been unlawfully searched, that a telephone and charger had been removed

from it, and that Dismas Charities had unlawfully seized this and other personal property

(DE # 1). As relief, he sought an order requiring Dismas Charities 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 adds defendants Derek Thomas and

Lashanda Adams (who is incorrectly identified in the Amended Complaint as Adams

Leshota), and seeks additional relief (DE # 14). The Amended Complaint, therefore, is3

the operative pleading in this case. The legal theories upon which the Plaintiff seeks

relief, as well as the specific relief sought, are described below.

II. THE AMENDED COMPLAINT

The Plaintiff contends 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



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This description is taken from the concluding paragraphs of his Amended4

Complaint. In the introductory paragraphs of the Complaint, the Plaintiff describes theaction in a similar, although not identical fashion: This is an [sic] civil suit for IllegalSearch and Seizure, False Arrest, Unlawful Imprisonment, Violation of ConstitutionalRights, Unlawful Discrimination of Race, National Origin, Ethnic Groups and Ancestry,Reverse Discrimination under the color of state and federal law, DiscriminatoryHarassment, Intentional Infliction of Mental Distress, Deliberate Indifference, and

Negligence by failing to ascertain the medical condition of the Movant [sic] complaints offeeling ill. (DE # 14 at 1). His initial description of the jurisdictional basis for thisaction is stated as follows: Movant brings this action pursuant to Bivens v. SixUnknown Named Agents . . . for violation of his rights to be free from Cruel and UnusualPunishment, for violations of his Constitutional Rights by persons acting under the colorof state and federal authority, and for violation of the Civil Rights Act of 1866, 42 U.S.C.1981, 1982, 1983, 2000. (DE # 14 at 3).

3

his property and person; his Fifth and Fourteenth amendment rights to due process of

law; and, his Eighth Amendment right to be free from cruel and unusual punishment (DE

# 14 at 8). He also contends that the Defendants committed the following torts against

him, which are governed by state law: false arrest and imprisonment; assault and

battery; malicious prosecution; abuse of process; negligence; and gross negligence (DE

# 14 at 8). As relief, he seeks a declaration that the conduct of the staff of Dismas4

House was unconstitutional; an order requiring the return of his property and an

accounting; an award of compensatory and punitive damages in a total amount of $3.6

million for the alleged deprivations, and reasonable attorneys fees and expenses (DE #

14 at 9).

Each of these claims is listed in a conclusory fashion, without any factual

allegations specifically attributed to a particular cause of action. The facts alleged in the

Complaint are discussed below.

According to the Amended Complaint, Defendant Dismas Charities is a private

contractor that has contracted with the Bureau of Prisons to offer services as a

Community Sanctions Center (DE # 14 at 8). Dismas Charities is also identified as a



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The undersigned has considered the allegations, made by the Plaintiff in his5

responses, which supplement the allegations in the Complaint, only for the purpose ofensuring a correct interpretation of the Complaint and for the purpose of determining

whether the Plaintiff should be granted leave to file a Second Amended Complaint.

The Defendants contend that the Plaintiff attended a resident orientation and6

acknowledged that the program policies and procedures were explained to him (DE # 26at 2). The Defendants also contend that the Plaintiff had the opportunity to askquestions and receive clarification of the policies and procedures. Id. The Plaintiffssecond filing of his statement of facts in support of his motion for summary judgment

4

halfway house which primarily houses federal prisoners (DE # 14 at 9, 10). Defendant

Dismas Charities employs Ana Gispert as the Director, Defendant Derek Thomas as the

Assistant Director, and Lashonda Adams as a counselor (DE # 14 at 9). The

Defendants are sued in their individual and official capacities (DE # 14 at 11).

Implicit from various allegations in the Complaint and its attachments, and

explicitly stated in the Plaintiffs response to the Motions to Dismiss, Plaintiff Traian

Bujduveanu was a federal prisoner who was released from prison by the Bureau of

Prisons on July 28, 2010, to complete the service of his federal prison sentence in a

halfway house. He was assigned to Dismas Charities. Thereafter, due to his medical5

condition, he was placed on home confinement, allowing him to serve the rest of his

sentence at home so long as he reported to Dismas every Wednesday (DE # 14 at 14,

15).

The Plaintiff alleges that upon his arrival at Dismas, he was given no handbook or

other information that covered the procedures he would need to follow to fulfill the

terms of his home confinement (DE # 14 at 3; DE # 33 at 3). The Plaintiff claims he only

received a paper of acknowledgment upon entering Dismas and that the only

handbook that existed at Dismas was a Resident Handbook, which he claims does not

discuss the issue of home confinement (DE # 33 at 3). The procedures that are relevant6



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(DE # 77), which was stricken by this Court (DE # 82), contains documents that indicatethat the Plaintiff received notice of the conditions of his home confinement (See DE # 77at 13). The undersigned, however, has not considered these facts in the following

analysis since in considering the Motion to Dismiss, with few exceptions noted below,the Court is limited to the facts alleged in the Complaint.

Neither brief explicitly states what statute, regulation, or book contains these7

provisions, but it appears that these provisions are a part of the resident handbooklisting Dismas rules and regulations (See generallyDE # 14, 26, 33, 38), which thePlaintiff may or may not have received (See DE # 14 at 3).

5

to this case are the procedures that prohibited the Plaintiff from driving without the

approval of the Director of Dismas, Defendant Ana Gispert (DE # 14 at 2-3), and a

provision that prohibits Dismas residents from possessing . . . a hazardous tool,

defined as tools most likely to be used in an escape or escape attempt or to serve as

weapons capable of doing serious bodily harm to others; or those hazardous to

institutional safety, which lists a hack-saw blade as an example of a hazardous tool (DE

# 38 at 6).7

On Wednesday, October 13, 2010, the Plaintiff drove his family automobile to

Dismas in order to report as required by the terms of his home confinement (DE # 14 at

3; DE # 33 at 3). Unidentified Dismas staff members then searched the automobile and

discovered a cellular phone in the glove compartment that the Plaintiff claims belongs to

his family (DE # 14 at 3). The phone was confiscated as a hazardous tool because it

could be used to communicate with other people who are not confined or with other

halfway house residents (DE # 14 at 3). The Plaintiff alleges that other articles of his

property, including his watch, clothing, ATM cards, social security card, driver license,

medical insurance cards, medical supplies, wallet, cosmetics, and certain documents

were also confiscated (DE # 14 at 3); that some of these items were mailed to him on

January 26, 2011; and that he has not heard from the Defendants about the rest of these



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The Defendants contend that the Plaintiff or his family have been allowed to pick8

up these other items but that he has refused to pick them up (DE # 26 at 3).

6

items (DE # 33 at 4). The Plaintiff alleges that, when he asked Defendant Lashanda8

Adams whether she knew about his phone, she said she did not know if anyone

searched his car, but that there was a telephone at Dismas (DE # 14 at 21). The

Plaintiff alleges that it was obvious that she was trying to cover up for one of the staff

members who conducted the illegal search. (DE # 14 at 21). The Plaintiff also alleges

that when he attempted to discuss the legal basis for the search of his automobile with

Assistant Director Defendant Derek Thomas, Defendant Thomas responded by

escalat[ing] the conflict to a personal level and attempted to resolve it in a vindictive

way (DE # 14 at 22). The Plaintiff claims that the seizure of his property was a

violation of his right to due process since he did not receive adequate notice, and

constituted an unconstitutional punishment (DE # 14 at 24).

According to the Complaint, on October 15, 2010, Defendant Thomas wrote an

incident report on the Plaintiffs unauthorized use of an automobile and possession of a

hazardous tool, in which he concluded that (a) the Plaintiffs confinement status should

be changed from home confinement to residing at Dismas for three weeks, (b) his

visitation privileges should be suspended for three weeks, and (c) his weekend passes

should be suspended for three weeks (DE # 14 at 25). The Plaintiff also claims that, to

humiliate the Plaintiff, Defendant Thomas forced the Plaintiff to vacuum rooms for him

while at Dismas, despite the Plaintiffs medical condition. (DE # 14 at 35).

The Plaintiff claims generally that the staff at Dismas Charities was hostile and

abusive, with conduct that was physically threatening and humiliating; and that

prisoners were constantly intimidated by staff and threats were made to return them to



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The precise date of the Plaintiffs release from the Federal Detention Center is9

not clear. There is no dispute, however, that the Plaintiff subsequently was releasedfrom the Federal Detention Center; and, there is no contention that the length of hissentence was increased as a result of the actions which form the basis for thisComplaint. Rather, the Plaintiff contends that he was deprived of his rights due to thechange in his place of incarceration and the severity of the incarceration (the move fromhome confinement back to Dismas Charities and then to the Federal Detention Center).

7

prison every time prisoners attempted to raise a valid issue or concern (DE # 14 at 29-

31).

Plaintiff alleges that on October 19, 2010, he was taken from Dismas Charities to

the emergency room of a hospital due to serious liver pain and discomfort (DE # 14 at

33).

Plaintiff alleges that at the request of Defendant Thomas, on October 20, 2010, the

Plaintiff was removed from Dismas by United States Marshals and incarcerated at the

Federal Detention center in Miami for 81 days (DE # 14 at 38, 46). Interpreting the9

Plaintiffs Amended Complaint liberally, he claims that Defendant Thomas ordered the

Plaintiffs incarceration without probable cause and that he subsequently attempted to

falsely charge him with possessing a hazardous tool to correct this mistake (DE # 14 at

39, 44). The Plaintiff also claims that his imprisonment was a result of the October

13, 2010 incident, for which he claims he was already punished as a result of the

disciplinary report written on October 15, 2010 (See DE # 14 at 42, 43). He asserts that

the Dismas Charities staff committed fraud by failing to disclose that this incident had

been resolved internally in the halfway house and that it had resulted in disciplinary

actions; and, that this constitutes malicious prosecution (DE # 14 at 42, 44).

The Plaintiff claims that he was incarcerated without being informed of the

charges levied against him, and that this caused him pain and suffering in violation of 42



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Although the Plaintiff claims that the requests for a BP-9 form, which he10

contends are available at Dismas, were made on more than one occasion to DefendantsGispert, Thomas, and Adams, as well as to Federal Detention Center (FDC) staff

members, and he refers to Exhibit E of the Complaint to support this allegation, theundersigned notes that the written requests for BP-9 forms contained in Exhibit E areaddressed to other people at the Federal Bureau of Prisons and the Federal DetentionCenter who are not named defendants in this action (See DE # 14 at 38-53). The absenceof the requests to the staff at Dismas Charities, of course, does not alter the analysis ofthe Motion to Dismiss since the Court is required to accept the factual allegations of theComplaint as true.

8

U.S.C. 1983 (DE # 14 at 45).

The Plaintiff alleges that Defendants Thomas and Adams hate white people and

foreigners, and that the acts of the Defendants were wanton, willful, unlawful,

malicious, and vicious, without regard for the system of justice in the United States (DE

# 14 at 48).

The Plaintiff also claims in general terms that the Dismas Charities staff caused

him irreparable harm by failing to ascertain his medical condition after he complained of

feeling ill (DE # 14 at 50). He alleges that he never filed a formal written administrative

remedy request because Defendants Gispert, Thomas and Adams did not respond to his

requests for the form BP-9, which is a form designed to request an administrative

remedy with the Federal Bureau of Prisons (DE # 14 at 51 -53).10

Finally, the Plaintiff alleges that Case Manager Price, an employee at the Federal

Detention Center, admitted to him that his continued incarceration in the Federal

Detention Center was illegal as of November 30, 2010, because no charges were levied

against him, no sanctions were entered in the Sentry System, and that the time for

entering any charges or sanctions expired a long time ago (DE # 14 at 7). The Plaintiff

also claims that his situation is analogous to the situation of other residents at Dismas,

that these practices are institutionalized at Dismas, and that Dismas failed to take any



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9

steps to remedy this kind of behavior despite having knowledge of its occurrence. Id.

III. DEFENDANTS MOTION TO DISMISS

Defendants Dismas Charities, Inc., Ana Gispert, Derek Thomas and Adams

Lashanda have filed somewhat a conclusory Motion to Dismiss seeking dismissal of this

action on various grounds (DE # 26). First, the Defendants assert that the Complaint

fails to allege sufficiently specific facts to state any cause of action, and assert that the

Complaint asserts legal conclusions without factual support. The Defendants further

contend that the Complaint fails to state any cause of action against Defendants Gispert,

Adams and Thomas because it does not delineate how the Defendants committed any of

the alleged violations in the Complaint.

As to the state law claims of false arrest and imprisonment, assault and battery,

malicious prosecution, abuse of process and negligence raised in the Complaint, the

Defendants contend that the Plaintiff has failed to allege the elements of each of those

claims sufficiently to withstand the Motion to Dismiss. Specifically, as to the claim of

false arrest and imprisonment, the Defendants contend that the Plaintiff has failed to set

forth any allegations that he was arrested, and further failed to explain how he could be

falsely imprisoned when he was already a prisoner serving his sentence at the time of

the incidents in the Complaint. In addition, the Defendants assert that the Plaintiff has

failed to allege that any of the Defendants arrested or imprisoned him. The Defendants

contend that there is a privilege as a matter of law to engage in reckless or even

outrageous conduct if there is sufficient evidence that show that the Defendant did no

more than assert legal rights in a permissible way. (DE # 26 at 9). The Defendants also

contend that there are no allegations to support the Plaintiffs claim that he was

assaulted or battered. Further, the Defendant argues that the Plaintiff has failed to state



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10

a claim for malicious prosecution because he has not alleged the commencement of

judicial proceedings, or that there was a termination of any proceedings in his favor.

Similarly, the Defendants contend that the Plaintiff has failed to state an abuse of

process cause of action because there can be no abuse of process where the process is

used to accomplish the result for which it was created, as it was in this case. Finally,

the Defendants contend that the Plaintiff has failed to state a negligence cause of action

because the Complaint fails to identify any duty owed by the Defendants to the Plaintiff

that was breached by the Defendants.

As to the Plaintiffs federal claims under the First, Fourth, Fifth, Eighth and

Fourteenth Amendments, the Defendants contend that the Plaintiff has failed to set forth

any facts to demonstrate that any of his constitutional rights were violated. In particular,

the Defendants assert that the Plaintiff has not alleged that any Defendant interfered with

his freedom of speech or expression in violation of the First Amendment, or that any of

his property was impermissibly searched or seized in violation of the Fourth

Amendment. In addition, the Defendants contend that the Plaintiffs due process rights

were not violated under the Fifth Amendment because the attachments to the Plaintiffs

Complaint demonstrate that the Plaintiff was provided notice of the disciplinary report

issued by Dismas. Also, the Defendants contend that the Plaintiff failed to assert any

facts indicating that he was subjected to cruel or unusual punishment in violation of the

Eighth Amendment. In this regard, the Defendants note that the Plaintiff was confined

by the Federal Bureau Prisons at the Federal Detention Center in Miami and not by the

Defendants in this action.

Finally, the Defendants contend that the Plaintiff has failed to allege any causes of

action under federal law and contend that a Bivens action cannot be maintained against



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11

the Defendants because they are not Federal Agents, and Dismas is a private non-profit

corporation. As such, the Defendants contend that the Plaintiffs Amended Complaint

should be dismissed.

In Response to the Defendants Motion to Dismiss, the Plaintiff initially filed a

Motion to Strike wherein the Plaintiff merely recites many of the facts alleged in the

Amended Complaint and provides additional detail regarding the incidents which gave

rise to the Plaintiffs claims against the Defendants (DE # 33). However, notably, the

Plaintiff argues that although his operation of a vehicle and possession of a cellular

telephone may have been code violations, those matters should have been resolved at

the halfway house and not at the federal prison (DE # 33 at 7). The Plaintiff also states

that the initial report written regarding a violation of the vehicle code did not include a

reference to a cellular telephone violation, but rather that violation was written in a

separate report one week after the date of the incident. The Plaintiff complains that the

second incident report was illegal because a report must be written within three

working days of the incident.

The Plaintiff also filed a Supplement in Response to the Defendants Motion to

Dismiss (DE # 38) wherein the Plaintiff argues that the cell phone violation that he was

issued was improper because the cell phone was never found in the possession of the

Plaintiff; and, further, that a telephone violation is a low-moderate offense which did

not merit the Plaintiff being returned to federal prison. In addition, the Plaintiff attached

to the Supplement two Incident Reports which recount the incident wherein the Plaintiff

was found to be in violation of the vehicle policy (DE # 38 at 8).

The Plaintiff also filed a Second Supplement in Response to the Defendants

Motion to Dismiss wherein the Plaintiff complains that Defendant Derek Thomas



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12

modified the Incident Report form used by the Bureau of Prisons, a modification that

according to the Plaintiff may only be made by the Federal Bureau of Prisons. The

Plaintiff concludes this Supplemental Response by demanding a third party, unbiased

investigation team, to investigate all 28 Dismas halfway houses, located in 18 states, for

illegal acts committed against the citizens of this country. (DE # 41 at 3).

IV. THE STANDARD FOR EVALUATING A MOTION TO DISMISS

With respect to the Motion to Dismiss made pursuant to Fed. R. Civ. P. 12(b)(6) for

failure to state a claim, it is well-settled that in order to state a claim, Fed. R. Civ. P.

8(a)(2) requires only a short and plain statement of the claim showing that the pleader

is entitled to relief. While a court, at this stage of the litigation, must consider the

allegations contained in the plaintiffs complaint as true, this rule is inapplicable to

legal conclusions.Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). In Iqbaland Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), the Supreme Court explained the

pleading requirements which must be met in a Complaint if it is to survive a motion to

dismiss. The Court emphasized that the complaints allegations must include more

than an unadorned, the-defendant-unlawfully harmed-me accusation. Iqbalat 1949.

Thus, [t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice. Id. In practice, to survive a motion to dismiss,

a complaint must contain sufficient factual matter, accepted as true, to state a claim for

relief that is plausible on its face. Id. A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged. The plausibility standard requires more

than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads

facts that are merely consistent with a defendants liability, it stops short of the line



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13

between possibility and plausibility of entitlement to relief. Determining whether a

complaint states a plausible claim for relief is a context specific undertaking that

requires the court to draw on its judicial experience and common sense. Id.

In considering a motion to dismiss, the facts alleged in the Complaint must be

viewed in the light most favorable to the Plaintiff. See FindWhat Investor Group v.

FindWhat.com, 658 F.3d 1282, 1296 (11th Cir. 2011) (reemphasizing that on motion to

dismiss, plaintiffs claims are accepted as true and reasonable inferences from these

claims are interpreted in the light most favorable to him). In addition, when considering

a 12(b)(6) motion to dismiss, the Court must accept as true all facts set forth in the

plaintiffs complaint and must generally limit its consideration to the pleadings and

exhibits attached thereto. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007);

Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009).

Although a Complaint is required to set forth sufficient facts to state a claim for

relief, it is also important that it comply with the requirement that the claims be identified

with sufficient clarity to enable a defendant to frame a responsive pleading. Byrne v.

Nezhat, 261 F.3d 1075, 1129-30 (11th Cir. 2001). Thus, Fed. R. Civ. P. 8(a) requires that

the Complaint set forth a short and plain statement of the claim. In addition, Fed. R.

Civ. P. 10(b) requires that the title of the complaint name all the parties; that each claim

be stated in numbered paragraphs; and, that, if doing so would promote clarity, each

claim founded on a separate transaction or occurrence be stated in a separate count.

The Court has the inherent authority to require a plaintiff to replead the complaint in

accordance with these requirements. Cesnik v. Edgewood Baptist Church, 88 F.3d 902,

907 n.13 (11th Cir. 1996); Fikes v. City of Daphne, 79 F.3d 1079, 1083 n.6 (11th Cir. 1996).

When analyzing apro se complaint, the court must construe the complaint



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14

liberally and must hold it to less stringent standards than pleadings drafted by lawyers,

regardless of how inartfully they are pled. See Erickson v. Pardus, 551 U.S. 89, 94

(2007). This means that while wildly implausible allegations in apro se complaint

should not be considered true, the Court should not punish apro se litigant for

linguistic imprecision. See Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008).

However, apro se plaintiff must still comply with procedural rules governing the proper

form of pleadings. Hopkins v. St. Lucie County School Bd., 399 Fed. Appx. 563, 565

(11th Cir. 2010) (quoting McNeil v. United States, 508 U.S. 106, 113 (1993)).

V. LEGAL ANALYSIS

A. Introduction

The Plaintiff claims that his First, Fourth, Fifth, and Eighth Amendment rights

were violated and seeks relief for these violations pursuant to Bivens v. Six Unknown

Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). A Bivens claim is

an implied right of action for damages arising directly under the Constitution for

damages against a federal officer who violates a citizens constitutional rights. Corr.

Serv. Corp. v. Malesko, 534 U.S. 61, 66 (2001). 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

generallyMalesko, 534 U.S. at 70 (noting that the Supreme Court has only extended

liability underBivens when individual federal officers violated the plaintiffs

constitutional rights, and the plaintiff had no alternative remedies for the violation).

Additionally, a court must find that there are no special factors counseling hesitation

that should preclude Bivens liability. See Bush v. Lucas, 462 U.S. 367, 377 (1983)

(quoting Carlson v. Green, 446 U.S. 14, 18-19 (1980)).



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15

Initially, for the reasons discussed below, the undersigned rejects the individual

Defendants claim that they are not subject to liability on the ground that they are private

actors. On the contrary, the undersigned concludes that their actions were taken under

color of law, and thus dismissal of all of the federal constitutional claims on this ground

is not appropriate.

With respect to Dismas Charities, Inc., however, even if that entity is acting under

federal law, the 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. Correctional Services Corp., v. Malesko, 534 U.S. 61 (2001). Therefore, all

constitutional claims asserted against Dismas should be dismissed with prejudice. On

the other hand, there remains a serious question regarding whether the employees of a

private prison are likewise exempt from liability underBivens, despite the fact that they

act under color of federal law. The undersigned briefly analyzes this issue, but

recommends against dismissal on this basis at this time because the Defendants did not

expressly raise this issue in their Motion to Dismiss, and it is unclear whether this is

their contention.

With respect to the merits of the constitutional claims raised against the

individual Defendants, the undersigned recommends dismissal of the Complaint with

prejudice to the extent that the Plaintiff seeks relief under the Eighth Amendment based

upon alleged indifference to the need for medical treatment. The U.S. Supreme Court

has expressly refused to imply a cause of action underBivens for this alleged

constitutional violation. Minneci v. Pollard, 131 S.Ct. 2449 (2011). With respect to the

remaining constitutional violations, the undersigned recommends dismissal for failure

to sufficiently allege facts to support a claim for relief.



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16

Based upon the dismissal of the federal claims, the Court need not reach the

sufficiency of the state claims since, unless the Plaintiff can establish federal question

jurisdiction, this Court should decline to exercise supplemental jurisdiction over the

state law claims. In the alternative, the undersigned recommends dismissal of the state

claims.

Since the Plaintiff is proceedingpro se, however, he should be granted leave to

file a Second Amended Complaint if he can in good faith allege sufficient facts in

accordance with the guidelines set forth in the following analysis.

B. The Plaintiff Has Failed to Comply with Federal Rules of Civil

Procedure 8 and 10

At the outset, the undersigned concludes that the Plaintiffs Amended Complaint

utterly fails to conform to the pleading requirements set forth in Rules 8 and 10 of the

Federal Rules of Civil Procedure. Rule 8 requires a complaint to contain a short and

plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P.

8(a)(2). This requirement is intended to give the defendant fair notice of the plaintiffs

claim and the grounds upon which it rests. Davis v. CocaCola Bottling Co. Consol., 516

F.3d 955, 974 (11th Cir. 2008). Similarly, Rule 10(b) requires a party to state its claims or

defenses in numbered paragraphs, each limited as far as practicable to a single set of

circumstances. Fed. R. Civ. P. 10(b).

The Eleventh Circuit has explained that Rules 8 and 10 work together to require

the plaintiff to present his claims discretely and succinctly, so that an adversary can

discern what the plaintiff is claiming and frame a responsive pleading. Davis, 516 F.3d at

980 n.57. In addition, where claims are presented in a cogent fashion, the court can

determine which facts support which claims and whether the plaintiff has stated any



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17

claims upon which relief can be granted, and, at trial, the court can determine that

evidence which is relevant and that which is not. Davis, 516 F.3d at 980 n.57.

In this case, the Plaintiffs Amended Complaint fails to comply with Federal Rules

8 and 10 because it fails to set forth each cause of action against each Defendant in a

manner that the Defendants are able to discern what the Plaintiff is alleging against each

of the Defendants. Moreover, the Plaintiff has failed to state each claim in a separate

count with a single set of circumstances relevant to each of those counts. The Amended

Complaint is a classic example of the type of shotgun pleading which has been criticized

by the Eleventh Circuit. Byrne v. Nezhat, 261 F. 3d 1075, 1128-33 (11th Cir. 2001).

Therefore, the Plaintiffs Amended Complaint must be dismissed. However, because the

Plaintiff is proceedingpro se, the Plaintiff should be granted leave to amend his

complaint to conform with the pleading requirements of the Federal Rules of Civil

Procedure.

C. It is Uncertain if the Bivens Claims Reach the Private Actors Underthe Facts of this Case

1. Private Defendants May Be Considered Federal Actors

The Court first turns its analysis of the Plaintiffs federal claims to an examination

of whether the Plaintiff is able to pursue a Bivens action with respect to the Defendants;

a private corporation, Dismas Charities, operating a halfway house under contract with

the Bureau of Prisons, and three of its employees (See DE # 14 at 2). As stated above, a

Bivens claim is an implied right of action arising directly under the Constitution for

damages against a federal officer who violates a citizens constitutional rights. Corr.

Serv. Corp. v. Malesko, 534 U.S. 61, 66 (2001).

Thus, the first step in a Bivens analysis is for the Court to determine whether the



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While the Plaintiff alleges that Dismas is not a part of the U.S. Federal11

Government (DE # 14 at 5), he also claims relief underBivens and 42 U.S.C. 1983 (DE# 14 at 1), and objects to the Defendants assertion that they are private parties (DE # 41at 1). Therefore, the undersigned assumes that the Plaintiff intends to seek to hold theDefendants liable pursuant to Bivens, and thus does not read the Plaintiffs statement

about Dismas as a non-federal government entity as a concession that a Bivens actionshould not be applied to the private Defendants in this action.

As discussed infra, the Court in Malesko found that Bivens causes of action12

were intended to reach individual federal officers and not private prison entities, asopposed to individuals. As such, the Court declined to find that the plaintiff therein wasable to state a Bivens claim against the private prison in that case.

18

alleged violations were committed by a federal officer or otherwise arose under color of

federal law. If the actions complained of by a claimant did not arise under federal law,

there can be no Bivens cause of action. In the case at bar, the determination of whether

the Defendants actions occurred under federal law is complicated by the fact that

Dismas Charities is, in general terms, a private entity.11

In Corr. Serv. Corp. v. Malesko, 534 U.S. 61, 66 (2001), the United States Supreme

Court examined whether a private prison that contracted with the Federal Bureau of

Prisons could be liable for constitutional claims raised pursuant to Bivens. Although, as

discussed more fully below, the Court determined that Bivens liability could not reach

the private prison in that case, the Courts decision was not predicated on a

determination that the private entity was not a federal actor whose actions were taken

under federal law. Rather, the Court bypassed the inquiry of whether a private prison12

that housed Federal Bureau of Prison inmates did so under color of federal law, and

instead immediately analyzed whether a Bivens action should be extended under the

facts of that case. Implicit in that omission is the fact that the Supreme Court accepted,

without discussion, that the private prison was acting under color of federal law.

However, because the Court in Malesko did not expressly state that private prisons and



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A close nexus exists when the action results (a) from the [s]tates exercise13

of coercive power, (b) when the state gives either significant overt or covertencouragement to the action, (c) when a private actor willfully participates in joint

activity with the [s]tate or its agents, (d) when the action is controlled by an agency ofthe state, (e) when the state delegated a public function to the private actor, (f) whenthe action is entwined with governmental policies, or (g) when government isentwined in [the private actors] management or control. Brentwood Academy v. Tenn.Secondary School Athletic Assn, 531 U.S. 288, 296 (2001). However, when the statemere[ly] approv[es] [of] or acquiesce[s] in private action, there is no close nexussufficient to constitute state action. See American Mfrs. Mut. Ins. Co. v. Sullivan, 526

19

their employees are federal actors for purposes ofBivens claims, the undersigned finds

it necessary to analyze the facts of this case to determine whether Dismas and its

employees qualify as federal actors or as acting under federal law.

For purposes of this analysis, it is worth noting that the test for federal

government action is the same as the test for state action under the Fourteenth

Amendment and 42 U.S.C. 1983. See Hartman v. Moore, 547 U.S. 250, 255 n.2 (2006)

(stating that although limited in some respects, . . . Bivens . . . is the federal analog to . .

. 42 U.S.C. 1983"). Therefore, it is appropriate to analyze the relevant case law

concerning the standard that must be met to show state action under 42 U.S.C. 1983 to

determine whether the Defendants are federal actors acting under color of federal law.

Morast v. Lance, 807 F.2d 926, 931 (11th Cir. 1988) (Because the concept of action under

color of federal law for purposes of a Bivens action is almost identical to the doctrine of

action under color of state law for purposes of a 1983 action, we will apply the

concepts of state action to [plaintiffs] Bivens claim.)

Although purely private action cannot be the subject of a lawsuit pursuant to 42

U.S.C. 1983, a private persons actions can be under color of state law when there is a

close [enough] nexus between the state and the challenged action [so] that seemingly

private behavior may be fairly treated as that of the state itself. See Brentwood13



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U.S. 40, 52 (1999).

Although inAlba v. Montford, 517 F.3d 1249, 1254 (11th Cir. 2008) the Eleventh14

Circuit declined to extend Bivens liability to employees of a private prison, the Court didnot reach the issue of whether those employees acted under color of federal law andinstead concluded that the plaintiff had adequate alternative state remedies thatprecluded a Bivens action with respect to an Eighth Amendment claim for cruel andunusual punishment based upon deliberate indifference to medical needs. Asdiscussed, infra, the United States Supreme Court has now adopted this determination.Minneci v. Pollard, 131 S.Ct. 2449 (2011).

20

Academy, 531 U.S. at 295; See generally Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172-

73 (1972) (purely private discrimination does not violate the 14th amendment).

Although it appears that the Eleventh Circuit has not directly addressed this

issue with respect to private prison employees, district courts within this circuit have14

examined this issue with varying results. In the Middle District of Florida, in a case

decided before Malesko, the Court concluded that where the state contracted with a

private corporation to run its prisons, the employees of that corporation could be held

liable under 42 U.S.C. 1983. Blumel v. Mylander, 919 F.Supp. 423, 426-27 (M.D. Fla.

1996). In contrast, in Charlot v. Correction Corp. of America, Case No. 10-00080-CIV

2011 WL 1498875, at *1-*2 (S.D. Ga. Mar. 25, 2011), the Southern District of Georgia held

that employees of private correctional facilities housing federal inmates are not

government actors.

In addition, there is a split among the Circuit Court of Appeals as to whether the

employees of a private prison qualify as federal actors for purpose of establishing

Bivens liability. In Holly v. Scott, 434 F.3d 287, 293-94 (4th Cir. 2006), the Fourth Circuit

held that the employees of a private corporation operating prisons that contracted with

the federal government are not federal actors because correctional facilities have never

been exclusively public, meaning that they are not performing a public function that



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21

would create a close nexus between them and the federal government. Holly, 434 F.3d at

293 (quoting Richardson v. McKnight, 521 U.S. 399, 405 (1997)). In Holly, the Fourth

Circuit also stated that there was no indication the government had a stake in the

corporation, that federal policy was involved in the violation, or that the employees in

question colluded with federal officials in making the relevant decisions. 434 F.3d at

292-93. Furthermore, in Holly, the Fourth Circuit also noted that the cases in which the

Supreme Court has extended Bivens liability all involved individual federal officers and

claimed it would not serve the purpose ofBivens, which is to deter individual federal

officers, by classifying the employees of private actors acting under color of federal law

as federal actors. 434 F.3d at 291 (quoting Malesko, 534 U.S. at 70). The concurring

opinion in Hollyagreed that there was no implied cause of action underBivens, but

reached a contrary conclusion regarding whether the individual employees were acting

under color of federal law; focusing on the fact that the Supreme Court in Malesko had

implicitly recognized that the private correctional corporation was acting under color of

federal law, and that in West v. Atkins, 487 U.S. 42 (1988), the Supreme Court had held

that private doctors rendering medical care to inmates under contract with the state

were acting under color of state law since their acts were attributable to the government.

434 F.3d at 297-302.

In contrast to Holly, the Ninth Circuit has held that employees of a private

corporation operating a prison in contract with the United States government acted

under color of federal law based on an analysis of the requirements for state action

under 42 U.S.C. 1983. Pollard v. Geo Group, Inc., 607 F.3d 583, 588 (9th Cir. 2010),

amended, 629 F. 3d 843, revd on other grounds, 132 S.Ct. 617 (2012). In reaching this

result in Pollard, the Ninth Circuit, like the concurring judge in Holly, relied on West v.



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Although the United States Supreme Court reversed the Ninth Circuits holding15

in Pollardwith respect to its determination that a Bivens action could be brought for anEighth Amendment violation, the Supreme Court had no occasion to address the liabilityof individual employees because they had been dismissed on other grounds. It isinteresting to note, however, that in the federal governments amicus brief in support ofMinneci, the government took the position that if the court reached the color of federal

law arguments, the government supported a determination that the actions were takenunder color of federal law. Brief of United States as Amicus Curiae supportingPetitioners. No. 10-1104, 2011 WL 3252793 at *13 n.6 (2011). The governmentemphasized that the criminal civil rights statute, 18 U.S.C. 242, which proscribesdeprivation of civil rights under color of law, and which had been interpreted the sameas 1983, has been successfully used to prosecute private prison employees. UnitedStates v. Wallace, 250 F. 3d 738 (5th Cir. 2001).

22

Atkins, 487 U.S. 42, 55-56 (1988). In Pollard, the Ninth Circuit rejected the analysis by the

Fourth Circuit in Holly, and further asserted that the fact that private prisons have been

utilized for many years does not mean that imprisonment is not a state function. 607 F.3d

at 591-92; Richardson, 521 U.S. at 413 (addressing 42 U.S.C. 1983 to determine whether

qualified immunity applies, not to determine state action). Moreover, the Ninth Circuit

noted that most courts that have analyzed this issue have decided that private

imprisonment is a public function, meaning that there is a close nexus between the state

and employees of private prisons such that their actions can be fairly attributed to the

state. Id.; accord, Sarro v. Cornell Corrections, Inc., 248 F. Supp. 2d 52, 59-61 (D. R. I.15

2003).

In Rosborough v. Managment Training Corp., 350 F. 3d 459 (5th Cir. 2003), the

Fifth Circuit found that a 1983 claim could be advanced against a state prison run by a

private prison-management group because that entity satisfied the public functions

test set forth by the Supreme Court which permits a finding that a private entity acts

under color of state law when the entity performs function which is traditionally the

exclusive province of the state. The Court stated, the Supreme Court has explained



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The Defendants claim that this Court has already held that the Defendants are16

private actors, at least with respect to the Plaintiffs Fourth Amendment claims (See DE #39 at 2). The Defendants base this claim on the Courts Order entered by thepredecessor Magistrate Judge denying Plaintiffs Motion to Appoint Counsel, whichstated that the plaintiffs claim of an unlawful search of his vehicle lacks merit. TheDefendants are private parties, and, therefore, their actions do not trigger the

23

that when private individuals or groups are endowed by the state with powers or

functions governmental in nature, they become agencies or instrumentalities of the State

and subject to its constitutional limits. Id. at 460. Significantly, the Court in

Rosborough additionally noted that the Supreme Court held inAdickes v. S.H. Kress &

Co., 398 U.S. 144, 152 (1970), that to act under color of state law does not require the

accused to be an officer of the state. Id.

Similarly, inAmericans United for Separation of Church and State v. Prison

Fellowship Ministries, 509 F. 3d 406, 422-23 (8th Cir. 2007), the Eighth Circuit found that

a prison run by a private entity was engaged in joint activity with the state to render the

private entity a state actor for purposes of 1983 liability. In reaching its conclusion, the

Court emphasized that the state gave the private entity the power to incarcerate, treat

and discipline inmates. Id. at 423. In addition, the counselor employees of the private

entity also were authorized to issue disciplinary reports and to, in concert with the state

Department of Corrections, impose progressive discipline on the inmates. Id.

Thus, although neither the Supreme Court nor the Eleventh Circuit has

determined whether employees of private prisons or penal facilities qualify as either

federal actors or as acting under federal law, after a through review of the above-cited

cases, for the following reasons the undersigned concludes that Dismas Charities, Inc.,

and its employees were acting under color of federal law under the facts alleged in this

action.16



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constitutional implications of the Fourth Amendment (DE # 18 at 2). That statement,however, was not necessary to the decision and was not accompanied by any citation toauthority or analysis. Moreover, it was made in an interlocutory order and it addressedonly the allegations in the originally filed Motion for Return of Property against Dismasand Gispert, as its director. It is unclear whether any relief was sought in the originalMotion against Gispert in her individual capacity; and to the extent that Order statesthere is no Bivens claim permitted against Dismas under the Fourth Amendment, it is

unquestionably correct. Therefore, the statement by the predecessor Magistrate Judge isnot binding on this case. Vintilla v. United States, 931 F.2d 1444, 1447 (11th Cir. 1991)(law of the case applies only where there has been a final judgment; a district courtmay reconsider prior rulings as long as the case remains within its jurisdiction);Technical Res. Serv., Inc. v. Dornier Med Sys., Inc., 134 F.3d 1458, 1465 n.9 (11th Cir.1998) (noting that when case is transferred to a different judge, the new judge mayreconsider rulings made by the predecessor judge).

24

First, the undersigned is particularly persuaded by the reasoning of those courts

that have found private prisons to be state actors in the 1983 context. As stated above,

the same analysis for determining whether an entity is operating under color of state law

applies for determining whether actors are operating under color of federal law.

Second, there is no dispute that the individual Defendants in the case at bar worked in a

halfway house that contracted with the Federal Bureau of Prisons to house prisoners

convicted of federal crimes, while those prisoners were serving some portion of their

sentence related to those federal convictions. Thus, as stated by the Court in Sarro v.

Cornell Corrections, Inc., 248 F.Supp. 2d 52, 59-61 (D. R. I. 2003), Clearly, the detention

of individuals charged with committing crimes is an exclusively governmental function.

Only the government has the authority to imprison a person and the exclusive

governmental nature of that function is not altered by the fact that, occasionally, the

government may contract to have criminal defendants incarcerated at privately-operated

institutions.

Similarly, in this case, Dismas Charities, in overseeing prisoners who reside at its

halfway house, is engaged in what is typically a governmental function. In addition,



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25

Dismas is acting in close nexus with the Federal Bureau of Prisons in incarcerating

prisoners for some portion of their sentences. Although the halfway house is not a

prison, the powers given to the employees at the Dismas halfway house are very

similar to those given to the employees inAmericans United for Separation of Church

and State. Indeed, the individual Defendants are alleged to be able to incarcerate, treat

and discipline inmates. In addition, the undersigned also agrees with the Court in Sarro

in concluding that the power to detain the Plaintiff in this action was derived solely and

exclusively from federal authority. Sarro, 248 F. Supp. 2d at 61. As such, the halfway

house and its staff operated under color of federal law.

Thus, the first Bivens prong is satisfied, as the Defendants actions were taken

under federal law.

2. The Plaintiff Cannot Maintain a Bivens Claim Against DismasCharities

Although the undersigned has concluded that Dismas Charities, Inc. and its

employees were acting under color of federal law under the facts of this case, as

mentioned above, in Correctional Services Corp., v. Malesko, 534 U.S. 61 (2001), the

United States Supreme Court expressly held that Bivens liability could not reach private

prison entities such as Dismas Charities, as opposed to individuals, even if that entity

was operating under color of federal law.

In Malesko, the Supreme Court concluded that a Bivens action was not available

against the private prison entity for several reasons, but most notably because the

purpose ofBivens is to deter individual federal officers from committing constitutional

violations. Id. at 70. The Court cited to its prior ruling in FDIC v. Meyer, 510 U.S. 471

(1994) and reiterated that the threat of a suit against an individuals employer was not



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26

the kind of deterrence contemplated by Bivens. Id. Thus, the Court surmised, if a

corporate defendant is available for suit, claimants will focus their collection efforts on

it, and not the individual directly responsible for the alleged injury. Id. at 71. The Court,

therefore, concluded that the plaintiff in that action could not maintain a Bivens action

against the private prison entity, notwithstanding the fact that the Court implicitly

accepted that the entity was operating under color of law.

Similarly, in this action, there is no dispute that Dismas Charities is an otherwise

private entity that is operating a halfway house that is the subject of the Plaintiffs claims

raised underBivens. Thus, pursuant to Malesko, the Plaintiff is absolutely foreclosed

from bringing a Bivens action against that entity and those claims must be dismissed

against Dismas Charities, with prejudice. However, as discussed below, because it was

not addressed in the Malesko decision, the determination of whether the Plaintiff may

pursue a Bivens claim against the individual employees of Dismas, must be analyzed

separately.

3. The Plaintiff Cannot State an Eighth Amendment Medical

Indifference Claim Against the Individual Defendants

The Supreme Court has recently foreclosed any possibility of the Plaintiff

advancing claims against the individual Defendants pursuant to the Eighth Amendment

based upon any alleged indifference to his medical needs. In Minneci v. Pollard, 132 S.

Ct. 617 (2012), the Supreme Court made clear that unlike the constitutional claims raised

under the Fourth and Fifth Amendments, there is simply no Eighth Amendment Bivens

action available against private prison employees while acting under color of federal law.

Specifically, in Pollard, the Supreme Court stated where...a federal prisoner seeks

damages from privately employed personnel working at a privately operated federal



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27

prison, where the conduct allegedly amounts to a violation of the Eighth Amendment,

and where that conduct is of a kind that typically falls within the scope of traditional

state tort law...the prisoner must seek a remedy under state law. We cannot imply a

Bivens remedy in such a case. Id.

In this case, as discussed above, the Plaintiff seeks to impose Bivens liability

against the employees of Dismas for medical indifference under the Eighth Amendment.

Based upon the allegations asserted in the Plaintiffs Amended Complaint, for purposes

of this claim, the employees of Dismas are no different than the employees who worked

for a private prison in Pollard. As such, pursuant to Pollard, the Plaintiff is unable to

state an Eighth Amendment medical indifference claim against those Defendants.

Accordingly, those claims must be dismissed with prejudice.

4. Special Factors Regarding Extending Bivens in this Context

Although the Plaintiff is unable to state a Bivens cause of action against Dismas

Charities, Inc., at all, and is unable to state an Eighth Amendment Bivens medical

indifference claim against the individual Defendants, the Court must also consider

whether under the facts of this case, a Bivens cause of action is available to the Plaintiff

for other constitutional violations allegedly committed by the individual Defendants. In

this regard, the undersigned notes that even though it has already been determined that

the Defendants herein, including the individual employees, are federal actors forBivens

purposes, this finding is not dispositive of the whether the Plaintiff is able to state a

Bivens claim against those employees in this action. In fact, as mentioned above,

Malesko expressly left open the question of whether a Bivens claim could lie against a

private individual acting under color of federal law. Malesko, 534 U.S. at 65.

In Minneci v. Pollard, 133 S.Ct. 617 (2012), the Supreme Court explained,



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[T]he decision whether to recognize a Bivens remedy mayrequire two steps. In the first place, there is the questionwhether any alternative, existing process for protecting the[constitutionally recognized] interest amounts to aconvincing reason for the Judicial Branch to refrain fromproviding a new and freestanding remedy in damages.... Buteven in the absence of an alternative, a Bivens remedy is asubject of judgment: the federal courts must make the kindof remedial determination that is appropriate for acommon-law tribunal, paying particular heed, however, toany special factors counseling hesitation before authorizinga new kind of federal litigation.

Id. (quoting Wilkie v. Robbins, 462 U.S. 367 (1983)). The second step, requiring a court

to pay particular heed to any special factors counselling hesitation is especially

significant in light of the fact that the Supreme Court has consistently refused to extend

Bivens liability to any new context or category of defendants since Carlsonv. Green,

466 U.S. 14, which was decided in 1980. See Malesko, 534 U.S. at 68. Indeed, in Wilkie v.

Robbins, 551 U.S. 537 (2007), the Supreme Court, in cautioning against the extension of

Bivens liability to new constitutional claims, stated,

Bivens...held that the victim of a Fourth Amendment violationby federal officers had a claim for damages, and in the years

following we have recognized two more nonstatutorydamages remedies, the first for employment discrimination inviolation of the Due Process Clause, Davis v. Passman, 442U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), and the secondfor an Eighth Amendment violation by prison officials,Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15(1980).

But we have also held that any freestanding damages remedyfor a claimed constitutional violation has to represent a

judgment about the best way to implement a constitutional

guarantee; it is not an automatic entitlement no matter whatother means there may be to vindicate a protected interest,and in most instances we have found a Bivens remedyunjustified. We have accordingly held against applying theBivens model to claims of First Amendment violations byfederal employers, Bush v. Lucas, 462 U.S. 367, 103 S.Ct.2404, 76 L.Ed.2d 648 (1983), harm to military personnel



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Although the court in Hollyanalyzed this situation with respect to its holding17

that employees of a private prison under contract with the Bureau of Prisoners were notfederal actors, it applies equally in analyzing whetherBivens should be applicable in thiscase.

29

through activity incident to service, United States v. Stanley,483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987); Chappellv. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586(1983), and wrongful denials of Social Security disabilitybenefits, Schweiker v. Chilicky, 487 U.S. 412, 108 S.Ct. 2460,101 L.Ed.2d 370 (1988). We have seen no case for extendingBivens to claims against federal agencies, FDIC v. Meyer, 510U.S. 471, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994), or againstprivate prisons, Correctional Services Corp. v. Malesko, 534U.S. 61, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001).

551 U.S. at 549-550. In Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001),

although decided before Wilke, the Supreme Court, in refusing to extend Bivens liability

to the private prison, noted that the decisions in the only two cases in which the

Supreme Court had extended Bivens liability involved violations of constitutional rights

by individual federal officers in situations where the plaintiff could avail himself of no

alternative remedy. 534 U.S. at 70.

In the case at bar, given the Supreme Courts hesitation to extend Bivens to new

contexts, a valid argument could be made for refusing to extend Bivens to a new

category of defendants who arguably are not federal officers, but rather are private

employees of a prison that has contracted with the Bureau of Prisons. As the Fourth

Circuit stated in Holly, applying Bivens in this situation would create a system in which

employees of private prisons would be subject to far greater liability than their federal

counterparts, as they are not able to raise the defense of qualified immunity. See

Richardson, 521 U.S. at 412 (holding private prison guards do not have qualified

immunity); see 434 F.3d at 294. The Supreme Court shared a similar sentiment in17



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See, e.g.,Schweiker v. Chilicky, 487 U.S. 412 (1988); Bush v. Lucas, 462 U.S.18367 (1983); Minneci v. Pollard, 132 S. Ct. 617 (2012).

See, e.g.,FDIC v. Meyer, 510 U.S. 471 (1994); Correctional Services Corp. v.19

Malesko, 534 U.S. 61 (2001).

See, e.g.,Chappell v. Wallace, 462 U.S. 296 (1983).20

30

Malesko, in which they said that the decision whether to impose asymmetrical liability

costs on private prison facilities alone is a question for Congress, not us, to decide. 534

U.S. at 71-72 (discussing liability costs in context of declining to extend Bivens to cover

a private correctional facility as federal prisoners could not sue the United States, only

the individual officer).

On the other hand, although it is manifest that the Supreme Court is reluctant, if

not entirely against extending Bivens into new areas, the undersigned notes that in its

opinions, the Supreme Court has only declined to extend Bivens claims under three

circumstances: 1) where there are adequate alternative state or federal remedies; 2)18

where the core principle ofBivens to deter constitutional violations by individual federal

officers will not be served; and 3) where other special factors are at issue, e.g., the19

unique nature of the military disciplinary system or significant involvement of Congress

in a particular area.20

In this case, arguably none of those three situations is present. As to the

adequacy of alternative state remedies, with the exception of the Plaintiff having an

adequate remedy for any medical indifference claim as determined in Pollard, it is

doubtful that the state law remedies would be adequate. Although a state law remedy

and the potential Bivens remedy need not be perfectly congruent. Pollard, 132 S.Ct. at

, (2012), the Court in Bivens rejected the argument that a state law trespass or



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The undersigned recognizes, as discussed infra, that the Plaintiff could sue21

under a state law conversion theory for any claims arising from the seizure of hiscellular phone or other property. Although such a remedy would likely preclude aBivens action related to that claim, that remedy would only address a portion of thePlaintiffs claims and leave him with no remedy for other alleged constitutionalviolations.

31

invasion of privacy action would be an adequate alternative state remedy for a Fourth

Amendment violation. Rather, the Court characterized those remedies as inconsistent

or even hostile to a remedy inferred from the Fourth Amendment. Bivens, 403 U.S. at

393-394. This conclusion was acknowledged by the Court in Malesko and served, in

part, as a basis for the Supreme Court to distinguish that case from Bivens. Id. at 73.

Further, in this case, it is unclear if the Plaintiff had an administrative remedy available

to him, because taking his allegations as true, his requests for a BP-9 form on which to

submit a grievance were refused. 21

In addition, to the extent that the Plaintiff is seeking to hold the employees of

Dismas Charities liable, the concerns regarding extending liability to a corporation or

agency, as opposed to individual actors, are not present. Finally, this case does not

involve the military or another area that is significantly controlled by Congress.

Thus, it is not entirely clear if the Supreme Court would refuse to extend Bivens

liability to the individual Defendants in this case, assuming that the Plaintiff were able to

sufficiently allege a constitutional violation. The undersigned concludes, however, that

the determination of whether a Bivens action should be extended to the employees of a

private halfway house under the facts of this case need not be resolved in this Report

and Recommendation as it is clear that in his Amended Complaint, the Plaintiff has failed

to allege sufficient facts to state a plausible claim for constitutional violations that would



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However, as noted above, to the extent that the Plaintiff seeks to extend Bivens22

liability to Dismas Charities, Inc., such a cause of action has been foreclosed by theSupreme Court in its holding in Malesko, and thus any constitutional claims advanced

against that entity should be dismissed with prejudice.

To the extent that the Plaintiffs constitutional claims seek to hold Dismas23

Charities, Inc., liable, those claims fail because, as stated above, pursuant to Malesko,there is no cause of action against that entity, even ifBivens is extended in this context.As such, the undersigned does not address the sufficiency of the Plaintiffsconstitutional claims against Dismas Charities, Inc.

32

give rise to Bivens liability.22

The Court therefore now turns its analysis to the sufficiency of the Plaintiffs

constitutional claims advanced against the individual Defendants.

D. Even If Bivens Liability Is Extended in this Context, the Plaintiff hasFailed to State a Claim for Violations of His Constitutional Rights 23

1. The Fourth Amendment

The Fourth Amendment states that no person shall be subject to unreasonable

searches and seizures. U.S. Const. Amend. IV. In the prison context, prisoners and

probationers have Fourth Amendment rights but they are not the same as the Fourth

Amendment rights of free people. Bell v. Wolfish, 441 U.S. 520, 545 (1979); United States

v. Knights, 534 U.S. 112, 119 (2001); Padgett v. Donald, 401 F.3d 1273, 1278-79 (11th Cir.

2005). The standard of reasonableness that is the mainstay of the Fourth Amendment

applies in the prison or probation context and is analyzed by balancing the infringement

upon privacy against the need to promote legitimate government interests. See

Knights, 534 U.S. at 119. Using this balancing test, the Supreme Court has held that

prisoners have no Fourth Amendment right against searches of their cells or against

being required to undergo visual body-cavity searches. See Hudson v. Palmer, 468 U.S.

517, 526 (1984); see Bell, 441 U.S. at 558.



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33

Further, in United States v. Knights, 534 U.S. 112, 119 (2001), the Supreme Court

determined that a person on probation did not have a Fourth Amendment right against a

warrantless search of his house based only on reasonable suspicion. Knights, 534 U.S.

at 121. In so doing, the Court stated, Probation is one point. . .on a continuum of

possible punishments ranging from solitary confinement in a maximum-security facility

to a few hours of mandatory community service. . . .Inherent in the very nature of

probation is that probationers do not enjoy the absolute liberty to which every citizen is

entitled. Id. at 119. The Court concluded that because one of the defendants

conditions on probation was that he submit to a search at any time, the probationers

reasonable expectation of privacy was significantly diminished. Id. Significantly, the

Court did not premise its analysis on the defendants consent to the search based upon

his agreement to comply with the conditions of probation, rather the Court balanced the

governments interest in reducing recidivism and successfully reintegrating the

probationer back into the community against the probationers interest in privacy, and

thereby concluded that the Fourth Amendment did not require that probable cause be

established prior to the search of the probationers residence.

This holding was extended in Samson v. California, 547 U.S. 843 (2006) where the

Supreme Court examined whether a condition of release could so diminish or eliminate a

released prisoner's reasonable expectation of privacy that a suspicionless search by a

law enforcement officer would not offend the Fourth Amendment. The Court, in

answering that query in the affirmative, concluded that parolees d[o] not have an

expectation of privacy that society would recognize as legitimate, Id. at 851, and stated

both parolees and probationers are on the continuum of state-imposed punishments,

and parolees have fewer expectations of privacy than probationers, because parole is



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34

more akin to imprisonment than probation is to imprisonment. Id. at 850. Notably,

again, the Court in Samson did not evaluate whether the defendants acceptance of

search conditions related to his parole constituted consent, rather the Court concluded

that given the totality of the circumstances, including the petitioners status as a

parolee, which the Court described as an established variation on imprisonment, and

the parolees agreement to the search conditions of parole, that the suspicionless

search was reasonable.

In United States v. Stewart, 213 Fed. Appx. 898, 899 (11th Cir. 2007), the Eleventh

Circuit Court of Appeals applied the holding in Samson to find that a warrantless search

of a parolee, who agreed to submit to a search at any time without a warrant, was

reasonable. Finally, in United States v. Brown, 2011 WL 344083 (N.D. Ga. Jan 3, 2011),

the Court examined the Supreme Courts holdings in Knights and Samson, as well as the

Eleventh Circuits holding in Stewart, and concluded that because the defendant, in that

case, agreed, as a condition of his parole, to the warrantless search of his person,

papers, and place of residence, automobile, or any other property under his control as a

condition of his parole, he did not have an expectation of privacy. In addition, the Court

applied this same analysis to the search of the defendants vehicle, and stated that there

was no reason to distinguish the Samson decision based on the fact that the search of

the parolee extended to a search of his vehicle. Id. at *8 n.12.

In the case at bar, the Plaintiff, who was serving the remainder of his prison

sentence under the supervision of Dismas, claims that his Fourth Amendment right

against unreasonable searches and seizures was violated when Dismas staff searched

his car and when they seized the cellular phone contained in the glove compartment (DE



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The Defendants claim that the Plaintiffs Fourth Amendment rights were not24

violated because he did not own the vehicle or cell phone. This assertion, however, iscontradicted by the allegations of the Complaint and its attachments, as well as thePlaintiffs response.

35

# 14 at 3). The Plaintiff also claims his Fourth Amendment rights were violated when24

Dismas staff seized other items that were his property, including his watch, clothing,

ATM cards, social security card, driver license, medical insurance cards, medical

supplies, wallet, cosmetics, and certain documents. Id. However, although it is unclear

what consent to search the Plaintiff may have signed upon entering the halfway house, if

any, pursuant to the holdings in Knights and Samson, the Plaintiff herein, as an inmate

completing his sentence at a halfway house, would have an even lower reasonable

expectation of privacy than the probationer and parolee in Knights and Samson, as his

status is closer to those incarcerated than to either a probationer or parolee. Thus, the

search of the Plaintiffs car by the staff of Dismas Charities was not unreasonable under

the facts alleged in the Amended Complaint, and does not constitute a Fourth

Amendment violation. The Plaintiff attempts to avoid this conclusion by asserting that

he was on home confinement and was never issued a handbook for the Home

Confinement Program when the purported vehicle violation and search of his vehicle

occurred. However, the Plaintiff stops short of alleging that he did not know that he was

not permitted to drive and does not even allege that he did not know that he might be

subject to a search by the Dismas Charities staff. Therefore, the Plaintiff has not

suggested that he had a reasonable expectation of privacy in a search of his vehicle.

Further, although the Plaintiff alleges that he was on home confinement, he states that

he was released from the halfway house to home confinement due to several medical

conditions (DE # 14 at 2). Thus, despite his placement on Home Confinement, the



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Plaintiffs status was more akin to imprisonment than either parole or probation.

In addition, regardless of whether the Plaintiffs privacy interest in his car or in

his seized property required reasonable suspicion or probable cause to search or seize,

the Plaintiff has not alleged that any of the Defendants are responsible for these actions.

The Plaintiff only alleges that unnamed Dismas staff members are responsible for these

actions (DE # 14 at 3). For example, relevant to the search, Defendants Adams and

Thomas are only mentioned in the Amended Complaint with respect to the Plaintiffs

attempts to discuss the factual and legal basis for the search and seizure, not with

respect to whether they were responsible for the search and seizure, itself. Id.

Defendant Gispert is not mentioned with respect to the search and seizure (See DE # 14

at 2-9). Moreover, the Plaintiff states that Adams was not involved in the search or

seizure because he states his conversation with her led him to believe that she was

covering for one of the unnamed staff members who performed the search (DE # 14 at 3).

For these reasons, the Plaintiffs claim that his Fourth Amendment rights were violated

should be dismissed for failing to state a claim against the named Defendants upon

which relief can be granted.

2. The Plaintiff Fails to State a First Amendment RetaliationClaim

The Plaintiff claims the Defendants violated his First Amendment right to freedom

of expression. The First Amendment states that Congress shall pass no law . . .

abridging freedom of speech, which means that the government cannot restrict

expression because of its message, its ideas, its subject matter, or its content. See

United States v. Stevens, --- U.S. ---, 130 S.Ct. 1577, 1584 (2010). Although the Supreme

Court has acknowledged that a Bivens cause of action may be alleged against federal



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officers for retaliation in the First Amendment context, see Hartman v. Moore, 547 U.S.

250, 256 (2006), in the case at bar, the Plaintiff fails to state a claim for retaliation under

the First Amendment.

For a prisoner to state a First Amendment retaliation claim, the prisoner must

establish: (1) that his speech or act was constitutionally protected; (2) that the

defendant's retaliatory conduct adversely affected the protected speech; and (3) that

there is a causal connection between the retaliatory actions and the adverse effect on

the speech. Douglas v. Yates, 535 F.3d 1316, 1321 (11th Cir. 2008). A prisoner's filing of

a grievance concerning his conditions of his imprisonment is protected speech under

the First Amendment. See id. (quotingBoxer X v. Harris, 437 F.3d 1107 (11th Cir. 2006).

In this case, the Plaintiff does not state how his freedom of expression was

violated. However, assuming that he seeks to predicate this claim on the allegation that

Dismas staff threatened and intimidated prisoners by threatening to have the United

States Marshals take them back to prison whenever they attempt to raise a valid issue

or concern (DE # 14 at 4), it appears that the Plaintiff seeks to assert that the

Defendants engaged in retaliation related to the prisoners free speech. The Plaintiff,

however, does not allege that any of the actions taken against him by the Defendants

were because of the exercise of this speech. Nor does he even allege that he

complained or raised an issue or concern prior to the incidents at issue. Rather, the

Plaintiff asserts that generally prisoners are intimidated when they complain. Courts

have rejected this sort of vague, non-specific allegation as being insufficient to state a

First Amendment retaliation claim. See Green v. Mowery, 212 Fed. Appx. 918, 920 (11th

Cir. 2006) (noting summary judgment appropriate on First Amendment retaliation claim

where prisoner failed to identify specific grievance he filed related to discipline and



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failed to identify specific retaliation related to any grievance). In addition, the Plaintiff

does not deny that he committed a vehicle infraction, and, in fact, his complaint

focuses on his claim that he was punished twice for this infraction, not because he filed

or voiced a grievance (DE # 14 at 5). Courts have also rejected First Amendment

retaliation claims where the facts indicate that the prisoner committed another infraction

which was followed by the disciplinary proceeding, thereby breaking the causal

connection between the free speech and the retaliatory discipline. Davis v. U.S., 272

Fed. Appx. 863, 867-68 (11th Cir. 2008) (finding no retaliation where officer issued

disciplinary report for violation which claimant did not dispute he committed); Smith v.

Fla. Dept. of Corr. 375 Fed. Appx. 905 (11th Cir. 2010) (same).

Thus, even taking the Plaintiffs allegations as true, the Plaintiff has failed to state

a claim for First Amendment retaliation under the facts as alleged in the Amended

Complaint.

3. Cruel and Unusual Punishment Under the Eighth Amendment

As discussed above, in Pollard, the Supreme Court made clear that the Plaintiff is

unable to assert an Eighth Amendment medical indifference claim underBivens against

the Defendants in this action. It is unclear, however, whether in the wake ofPollard, the

Plaintiff may pursue an Eighth Amendment claim for cruel and unusual punishment

based upon non-medical conditions of confinement pursuant to Bivens. That

notwithstanding, even if such a Bivens claim could be asserted in this case, for the

following reasons, the Plaintiff has failed to state a claim for cruel and unusual

punishment under the facts alleged in the Amended Complaint.

The Eighth Amendment prohibits cruel and unusual punishment and is a restraint

upon legislative power. U.S. Const. Amend. VIII. See Gregg v. Georgia, 428 U.S. 153, 174



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(1976). The Eighth Amendment ban on cruel and unusual punishment encompasses

bans on excessive sanctions, requiring that a punishment be proportional to the offense

being punished.Atkins v. Virginia, 536 U.S. 304, 311 (2002). In deciding whether a

punishment is proportional to the crime, courts are guided by contemporary standards

of decency, which are analyzed by looking at objective factors, the most important of

which is legislation passed by the countrys legislatures.Atkins, 536 U.S. at 311-12

(quoting Penry v.

Documents

Report and Recomandation Re:Defendant's Motion To Dismiss