Doc. 119

Case 1:11-cv-20120-AMS Document 119 Entered on FLSD Docket 09/28/2012 Page 1 of 16

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 11-20120-CIV-SIMONTON

TRAIAN BUJDUVEANU,

Plaintiff,

v.

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

Defendants.

/

ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT
AND MOTIONS TO STRIKE PLAINTIFF’S SUR-REPLIES

Presently pending before the Court is the Plaintiff’s Motion for Summary

Judgment (DE ## 72, 73) and the Defendants’ Motion for Summary Judgment (DE # 83).

The Motions are fully briefed (DE ## 87, 90, 91, 92). Also pending before this Court is the

Defendants’ Motion to Strike Plaintiff’s Response to Defendants’ Reply Brief in Support

of Defendants’ Motion for Final Summary Judgment (DE # 93). In addition, the

Defendants have filed a Supplemental Motion for Summary Judgment (DE # 103). The

Plaintiff has filed a Response to that Motion (DE # 111), the Defendants have filed a

Reply (DE # 113), and the Plaintiff has filed a Sur-Reply (DE ## 114, 115). The Defendants

have also filed a Motion to Strike Plaintiff’s Sur-Reply to the Supplemental Motion for

Summary Judgment (DE # 116), to which the Plaintiff has responded (DE # 118).

Pursuant to the consent of the Parties, this matter has been transferred to the

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

Judge for all further proceedings (DE # 100).

The undersigned has thoroughly reviewed the record and, for the reasons stated


herein, denies the Plaintiff’s Motion for Summary Judgment, without prejudice, denies

the Defendants’ Motion for Summary Judgment, as moot, denies the Defendants’ Motion

to Strike Plaintiff’s Response to Defendants’ Reply Brief in Support of Defendants’

Motion for Final Summary Judgment (DE # 93) as moot, and denies the Defendants’

Motion to Strike Plaintiff’s Response to Defendants’ Reply Brief in Support of

Defendants’ Supplemental Motion for Final Summary Judgment (DE # 116).

I. BACKGROUND

The action arises from a series of events which occurred while Plaintiff Traian

Bujduveanu was completing the service of a thirty-five month sentence in a halfway

house operated by Defendant Dismas House Charities, Inc. (“Dismas House” or

“Dismas”).1 Specifically, the Plaintiff alleges that certain staff members at Dismas

House violated his constitutional rights and committed several state law torts in

improperly seizing his property, disciplining him, and ultimately having him removed

from Dismas House and placed at the Federal Detention Center (“FDC”) in Miami, for the

duration of his sentence. The Plaintiff initially filed this case as a Motion for Return of

Property against Dismas Charities and Ana Gispert,2 claiming that a family car he had

driven to Dismas 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

1
The Plaintiff plead guilty to Conspiracy to violate the International Emergency
Economic Powers Act, the Iranian transactions regulations and the Arms Export Control
Act, in violation of 18 U.S.C. § 371.
2
Plaintiff initially spelled this Defendant’s name incorrectly as “Ginspert.” This
misspelling was corrected in the Amended Complaint.

2


any further relief the Court deemed appropriate (DE # 1 at 3). Thereafter, before serving

either defendant, the Plaintiff filed an Amended Complaint, which added defendants

Derek Thomas and Lashanda Adams (who is incorrectly identified in the Amended

Complaint as Adams Leshota),3 which sought additional relief (DE # 14).

In the First Amended Complaint, the Plaintiff alleged various causes of action

which the Plaintiff divided into "Federal Theories of Recovery" and "State Law Theories

of Recovery" (DE # 14). In particular, under the Federal Theories of Recovery, the

Plaintiff listed the following causes of action:

1. First Amendment, defining the right to freedom of expression;

2. Fourth Amendment, defining the right to be free from unlawful seizure of

his property or person;

3. Fifth and Fourteen (sic) Amendment, defining the rights to due process;

4. Eight (sic) Amendment, defining the right to be free from cruel and unusual

punishment.

(DE # 14 at 8). In addition, the Plaintiff listed the following causes of action under the

State Law Theories of Recovery:

1. False arrest and imprisonment;

2. Assault and battery;

3. Malicious prosecution;

4. Abuse of process;

5. Negligence, and

3
Defendant Lashanda Adams was originally referred to as “Adams Leshota” in
the Plaintiff’s Amended Complaint (DE # 14); however, she has been referred to
exclusively as Lashanda Adams in subsequent flings.

3


6. Gross negligence.

Id. The Defendants then filed a Motion to Dismiss seeking dismissal on various grounds

(DE # 26). The Motions were fully briefed and referred to the undersigned (DE # 43). In

addition, the Plaintiff and the Defendants each filed Motions for Summary Judgment,

both of which were predicated upon the allegations and facts asserted in the Plaintiff’s

First Amended Complaint.

While the Motions for Summary Judgment were pending, the undersigned issued

a Report and Recommendation recommending, inter alia, that the Defendants’ Motion to

Dismiss be granted but that the Plaintiff be granted leave to Amend his Complaint with

regard to certain causes of action (DE # 94). On March 16, 2012, the Honorable Patricia

Seitz issued an Order affirming the Report and Recommendation on the Defendants’

Motion to Dismiss and granting the Plaintiff leave to amend his Complaint for a second

time (DE # 98). Specifically, the Court dismissed with prejudice Plaintiff’s claims

brought pursuant to the Double Jeopardy clause against all of the Defendants, the

Bivens claim against Defendant Dismas Charities, and the Bivens and Eighth

Amendment claims alleged against the individual Defendants.4 The Court advised the

Plaintiff that an amended complaint would have to be filed no later than March 28, 2012,

and directed the Defendants to file an answer to that complaint on or before April 4,

2012. In addition, the Court permitted the Parties to supplement their existing Motions

for Summary Judgment to address any new issues raised in the Second Amended

4
Although the Plaintiff filed objections to the Report and Recommendation issued
by the undersigned regarding the Defendants’ Motion to Dismiss, he did not object to the
recommendation that his Bivens claim against Dismas Charities, and his Bivens and
Eighth Amendment Claims against the individual Defendants be dismissed with
prejudice (DE # 96).

4


Complaint (DE # 72, 83).

On March 28, 2012, the Plaintiff filed an Amended Complaint (“Second Amended

Complaint”). In his Second Amended Complaint, the Plaintiff alleges Violations of his

First Amendment Rights (Count I), Violations of his Fifth Amendment Rights (Count II),

Violations of his Fourteenth Amendment Rights (Count III), Negligence and Gross

Negligence (Count IV); Abuse of Process (Count V), and Malicious Prosecution (Count

VI). The Defendants timely filed their Answer and Affirmative Defenses to the Second

Amended Complaint (DE # 102). The Defendants thereafter filed their Supplemental

Motion for Summary Judgment (DE # 103). The Plaintiff has filed a Response to that

Supplemental Motion (DE # 111), Defendants have Replied (DE # 113), and the Plaintiff

has filed a Sur-Reply (DE # 114).

II. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

As noted above, prior to filing the Second Amended Complaint, the Plaintiff filed a

Motion for Summary Judgment predicated upon the claims raised in his First Amended

Complaint, which is styled as a “Complaint for Damages” filed on March 29, 2011 (DE ##

72, 73, 75, 84, 85).5 In that Motion, the Plaintiff asserts that he is entitled to Summary

Judgment on the following issues:

1. Claim 1: Right to be free from unlawful seizure of property or person6 ;

5
The Plaintiff filed two separate Statement of Facts in support of his Motion for
Summary Judgment (DE ## 74, 77). However, both of those filings were stricken by
Judge Seitz for filing to properly cite to the record for support of the facts asserted in
those filings (DE ## 76, 82). The Plaintiff subsequently filed two additional Statements of
Material Facts (DE ## 84, 85).
6
Although in the Motion for Summary Judgment, the Plaintiff identifies certain
causes of action as numbered claims, those numbers do not correspond to the manner
in which the causes of action are set forth in the First Amended Complaint.

5


2. Claim 2: False arrest and imprisonment;

3. Claim 3: Rights to due process;

4. Claim 4: Malicious Prosecution;

5. Claim 5: Right to be free from cruel and unusual punishment;

6. Claim 6: Unlawful Discrimination based on Race, National Origin, Ethnic

Groups and Ancestry, Reverse Discrimination under the color of state law,

Discriminatory Harassment;

7. Claim 7: Rights to Freedom of Expression;

8. Claim 8: Intentional Infliction of Mental Distress and Abuse of Process;

9. Claim 9: Negligence;

10. Claim 10: Gross Negligence by failing to ascertain the medical condition of

the Movant complaints of feeling ill.

(DE # 73 at 9-10). The Defendants filed a response to the Motion for Summary Judgment

(DE # 87). In that response, the Defendants stated, inter alia, “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.” (DE # 87 at 3). Thus, the Defendants’ opposition to the Motion relied upon the

Motion for Summary Judgment that the Defendants filed on their own behalf in this

matter.7 For the following reasons, the Plaintiff’s Motion for Summary Judgment is

denied as moot, without prejudice to file a new Motion for Summary Judgment based

upon the allegations raised in the Plaintiff’s Second Amended Complaint.

7
The Defendants have now filed a Supplemental Motion for Summary Judgment
wherein they address the claims raised in the Plaintiff’s Second Amended Complaint.

6


III. LAW AND ANALYSIS

A. Plaintiff’s First Amended Complaint Was Rendered Moot by
the Filing of the Second Amended Complaint

The granting of a Motion to Amend renders moot a parties' previous pleadings.

See Malowney v. Federal Collection Deposit Group, 193 F.3d 1342, 1345 n. 1 (11th Cir.

1999) (noting that an amended complaint supersedes a previously filed complaint);

Meterlogic, Inc. v. Copier Solutions, Inc., 185 F.Supp.2d 1292, 1297 (S.D.Fla. 2002)

(noting that the plaintiff's filing of an amended complaint “rendered moot the parties'

previous pleadings and the defendants' summary judgment and Daubert motion”). As

stated above, pursuant to the Court’s March 16, 2012 Order, wherein the Plaintiff was

granted leave to again amend his Complaint, the Plaintiff filed a Second Amended

Complaint on March 28, 2012 (DE # 101). Thus, the Plaintiff’s First Amended Complaint

(DE # 14) filed on March 29, 2011, was thereby mooted and the Second Amended

Complaint is now the operative complaint in this action.

B. The Plaintiff’s Motion for Summary Judgment is Moot
Due to the Filing of the Second Amended Complaint

As previously stated, the arguments advanced in the Plaintiff’s Motion for

Summary Judgment are directed at the claims and facts alleged in the Plaintiff’s First

Amended Complaint rather than those claims and facts alleged in the Second Amended

Complaint. As such, for the following reasons, that Motion is due to be denied, without

prejudice, as moot.8

8
The undersigned recognizes that the District Judge contemplated that the
Motion for Summary Judgment would remain pending and survive the filing of the
Second Amended Complaint. Based upon the following discussion, however, the
undersigned has determined that to prevent a confusing record, a new motion must be
filed.

7


First, it is worth noting that the Plaintiff’s First Amended Complaint and Second

Amended Complaint are entirely different in style and notably different in substance.

While Plaintiff’s claims all generally arise from the incidents surrounding the Plaintiff’s

cell phone and automobile usage while completing his sentence at Dismas Charities, as

noted in the Defendants’ Reply in support of the Supplemental Motion for Summary

Judgment the “gravamen of the [Second] Amended Complaint is that the Plaintiff is

upset that he was transferred from Dismas back to the Federal Detention Center-Miami

to complete the remainder of his sentence.” (DE # 113 at 9). This focus is significantly

different than that put forth in the Motion for Return of Property (DE # 1) which initiated

this action, and the Plaintiff’s First Amended Complaint which spent considerable time

recounting the purported facts of the confiscation of the Plaintiff’s cellular telephone

and search of his family’s vehicle by Dismas Charity staff members. (DE # 14 at ¶¶ 17-24,

40, 41, 43). Second, Claims 1 and 2 (Right to be free from unlawful seizure of property or

person and False arrest and imprisonment) argued in the Plaintiff’s Motion for Summary

Judgment are no longer at issue in this matter because the Plaintiff has not alleged

violations of the Fourth Amendment and has not raised claims of False Arrest and

Imprisonment in the Second Amended Complaint. Similarly, Claim 5 (Right to be free

from cruel and unusual punishment) is no longer at issue because the Plaintiff’s Eighth

Amendment claims for cruel and unusual punishment alleged in the First Amended

Complaint were dismissed with prejudice, prior to the Plaintiff filing the Second

Amended Complaint, and thus were not realleged in the Second Amended Complaint.

Therefore, Claims I, 2 and 5 in the Plaintiff’s Motion for Summary Judgment are

irrelevant to this action as it is currently plead, and thus are denied as moot.

Further, the other claims argued in the Plaintiff’s Motion for Summary Judgment

8


are not tailored to and do not sufficiently address the claims alleged in the Plaintiff’s

Second Amended Complaint. By way of example, “Claim 3: Rights to Due Process”

argued in the Plaintiff’s Motion for Summary Judgment, asserts that the Plaintiff’s Fifth,

Eighth and Fourteenth Amendment rights were violated when he was given three

violations, on different dates, for the same incident and was sent to prison without Due

Process of Law (DE # 73 at 6). However, in the Second Amended Complaint, although

the Plaintiff refers to the three violations in his General Allegations, the Plaintiff’s

contentions contained in Count II of the Second Amended Complaint are specific, and

center on his claim that his Fifth Amendment Rights were violated when he did not

receive a hearing upon his return to the Federal Detention Center, that he was forced to

serve an additional 81 days in federal incarceration and that he received punishment in

direct violation of his doctor’s directives. Further, in the Second Amended Complaint,

the Plaintiff contends that he was not afforded due process because the Defendants did

not comply with the Bureau of Prison guidelines, an issue that is not addressed in the

due process Claim 3 of the Plaintiff’s Motion for Summary Judgment.

Similarly, as to the Plaintiff’s First Amendment claims related to his religion

asserted in the Second Amended Complaint, notably, the First Amended Complaint did

not mention the Plaintiff’s religion nor his request to attend religious services. In

addition, although in the Plaintiff’s Motion for Summary Judgment, the Plaintiff asserts

that the Defendants denied him the opportunity to attend services at an Orthodox

Church, his sole argument on that point is that, contrary to the Defendants’ assertions,

no Federal Guidelines existed that limited the distance that a resident could travel to

attend religious services (DE # 73 at 3, 9). In contrast, in the Second Amended

Complaint, the Plaintiff describes with particularity the requests he made to the

9


Defendants and alleges that there is an exception to the geographical limitation of the

distance that the church may be located from Dismas House (Count I, DE # 101 at 3, 4).9

Another example of the failure of the Plaintiff’s Motion for Summary Judgment to

adequately address the claims at issue in this case, due to the filing of the Second

Amended Complaint, may be found in Count IV of that Complaint, wherein the Plaintiff

alleges that the Defendants committed Negligence and Gross Negligence by not

providing the Plaintiff with diabetic-friendly meals in violation of the Department of

Correction Policies (DE # 101 at 6). This allegation is absent from the First Amended

Complaint and is not addressed in the Plaintiff’s Motion for Summary Judgment.

Finally, in the Second Amended Complaint, the Plaintiff sets forth a litany of

allegations related to the Defendants’ purported failure to follow procedures that are

required when transferring a prisoner from one status to another. These specific

allegations were not raised in the Plaintiff’s First Amended Complaint and are not

addressed in any meaningful way in the Plaintiff’s Motion for Summary Judgment.

Simply put, various allegations and claims made in the Plaintiff’s Second

Amended Complaint that were not made in the Plaintiff’s First Amended Complaint have

not been adequately addressed in the Plaintiff’s Motion for Summary Judgment. Thus,

denying the Plaintiff’s Motion for Summary Judgment without prejudice as being moot

is appropriate. See e.g. Pierce v. City of Miami, 176 Fed. Appx. 12, at *1 (11th Cir. 2006)

(noting that trial court determined motions for summary judgment were rendered moot

where court granted plaintiff’s motion to amend complaint over the defendants’

9
In their Answer to the Second Amended Complaint, the Defendants deny the
assertions made by the Plaintiff regarding an exception to the geographical limitation
(DE # 102 at 3).

10


objections); Anderson v. Blake, 2012 WL 1565528, at *1 (M.D. Ga. April 30, 2012) (denying

defendant’s motion for summary judgment as moot where plaintiff sought to file second

amended complaint); Houston Casualty Co., v. International Grand Tours, Inc., 2008 WL

2705008, at *3 (N.D. Cal. July 9, 2008) (stating “Amending a complaint would ordinarily

moot a motion for summary judgment noticed on the prior operative complaint.”)

Moreover, while the undersigned is aware that courts construe pro se plaintiff’s

filings liberally, the undersigned notes that the manner in which the Plaintiff’s Motion for

Summary Judgment is structured is, at best, confusing, and, in reality, virtually

impossible for the undersigned to address in a comprehensive, methodical manner

particularly given the structure and substance of the Second Amended Complaint.

Accordingly, given that the operative pleading is the Plaintiff’s Second Amended

Complaint that was filed after the pending Motion for Summary Judgment, and that the

Second Amended Complaint asserts different factual allegations as to the revised

causes of action, the Plaintiff’s Motion for Summary Judgment is Denied as moot,

without prejudice. The Plaintiff may file a renewed Motion for Summary Judgment on or

before October 19, 2012. However, if the Plaintiff elects to do so, the Motion must

correspond to the causes of action raised in the Second Amended Complaint filed on

March 28, 2012 (DE # 101), and specifically identify each count of the Second Amended

Complaint upon which the Plaintiff seeks summary judgment. Of course, the Plaintiff is

not required to seek summary judgment as to each claim; but he must specifically

address each claim upon which he seeks summary judgment. The Motion must also

include specific references to the record or evidence in the record which support the

Plaintiff’s request for summary judgment. See e.g., Law v. Stewart, 2010 WL 2998515

(W.D. Mich. July 23, 2010) (stating, after denying defendants’ motion for summary

11


judgment as moot where the plaintiff filed an amended complaint after the motions for

summary judgment had been pending for months, that it would be no great task for the

defendant to file a new motion explicitly addressing the amended complaint).

On or before November 5, 2012, the Defendants may file a response to the

Plaintiff’s Motion for Summary Judgment directed to the claims in the Second Amended

Complaint. On or before November 15, 2012, the Plaintiff may file a Reply.

IV. DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

As stated above, prior to the Court issuing its Order granting the Plaintiff leave to

file a second amended complaint and prior to the undersigned issuing a Report and

Recommendation on the Defendant’s Motion to Dismiss the First Amended Complaint,

the Defendants filed a Motion for Summary Judgment directed to the Plaintiff’s First

Amended Complaint, which is currently pending before this Court (DE # 83). The

Defendant has also filed a Supplemental Motion for Summary Judgment which is

directed to the Plaintiff’s Second Amended Complaint (DE # 103).10 Although the

Supplemental Motion for Summary Judgment incorporates several of the Defendants’

prior filings including the earlier filed Motion for Summary Judgment directed at the

Plaintiff’s First Amended Complaint, the Supplemental Motion independently fully sets

forth the basis for the Defendants’ request for summary judgment directed at the Second

Amended Complaint.11 In other words, there are no arguments advanced in the

10
The Defendants note that they would have filed a Motion to Dismiss the Second
Amended Complaint but were directed by the Court’s March 16, 2012 Order to file an
Answer.
11
The Supplemental Motion for Summary Judgment also incorporates the
Defendants’ Motion to Strike the Plaintiff’s Pleading for Failure to Appear for Deposition,
Prior Response to the Motions for Summary Judgment, Statement of Undisputed Facts
and Orders of the Court. (See DE # 103 at 1 incorporating DE ## 78, 83, 83-1, 83-2, 88-1,

12


Defendants’ First Motion for Summary Judgment that are not similarly advanced in the

Supplemental Motion for Summary Judgment, although the arguments advanced in the

latter are appropriately tailored to the operative complaint, which as discussed above, is

the Plaintiff’s Second Amended Complaint. Further, many of the arguments raised in the

Defendants’ initial Motion for Summary Judgment, e.g. Fourth and Eighth Amendment

arguments, are no longer applicable to this action because the Plaintiff’s Second

Amended Complaint omitted certain causes of action that had been alleged in the First

Amended Complaint. Similarly, the Defendants’ first Motion for Summary Judgment

references specific paragraphs in the Plaintiff’s First Amended Complaint, which again

is no longer the operative Complaint. Accordingly, for the sake of clarity, as well as,

judicial efficiency, the Defendants’ First Motion for Summary Judgment (DE # 83) is

denied, as moot, and the undersigned instead will rule on the Supplemental Motion for

Summary Judgment (DE # 103). See Carroll-Brufsky v. E.W. Scripps Co., 2012 WL

1676766 *1 (M.D. Fla. May 14, 2012) (denying defendant’s motion to dismiss/motion for

summary judgment as moot after granting pro se plaintiff leave to amend complaint in

the interests of efficiency).

However, the undersigned is aware that the Affidavit of Ana Gispert which was

submitted in support of the Defendants’ original Motion for Summary Judgment (DE #

83-2), was not refiled with the Supplemental Motion for Summary Judgment. Thus, to

the extent that Ms. Gispert’s Affidavit is relied upon by the Defendants in the

Supplemental Motion for Summary Judgment, the Affidavit will be considered by the

91, 94, 98).

13


undersigned in ruling on the Supplemental Motion for Summary Judgment.12 Along

these same lines, the undersigned will consider all of the evidence in the record whether

filed with the original Motion for Summary Judgment or the Supplemental Motion for

Summary Judgment filed by either the Plaintiff or the Defendants in resolving the

Motions for Summary Judgment directed to the Plaintiff’s Second Amended Complaint.

In accordance with Rule 56.1 of the Local Rules for the Southern District of Florida and

Fed. R. Civ. P. 56 (c)(1)(A), however, the Parties must include citations in their motions

and memoranda, which direct the Court to the evidence in the record they wish the Court

to consider.

V. DEFENDANTS’ MOTION TO STRIKE PLAINTIFFS’ SUR-REPLY
TO DEFENDANTS’ MOTION FOR FINAL SUMMARY JUDGMENT

The Defendants have also filed a Motion to Strike Plaintiffs’ Response to

Defendants’ Reply Brief in Support of Defendants’ Motion for Final Summary Judgment

(DE # 93). The Defendants contend that the Plaintiff’s Sur-Reply to the Motion for

Summary Judgment should be stricken because the Plaintiff failed to seek leave from

the Court before filing a Sur-Reply and is not entitled to submit a Sur-Reply under the

applicable rules of Civil Procedure and the Local Rules. However, because the

undersigned has denied the Defendants’ initial Motion for Summary Judgment as moot,

the Defendants’ Motion related to the Sur-Reply filed in response to that Motion is also

moot.

12
The Statement of Undisputed Facts in Support of Defendants’ Motion for
Summary Judgment (DE # 83-1) was reproduced in nearly identical format in the
Defendants’ Reply to the Supplemental Motion for Summary Judgment (DE # 113). Thus,
the Court relies upon the statement of facts set forth in the Supplemental Reply, rather
than the statement of facts submitted with the initial Motion for Summary Judgment.

14


VI. DEFENDANTS’ MOTION TO STRIKE PLAINTIFFS’ SUR-REPLY
TO DEFENDANTS’ SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT

The Defendants have also filed a Motion to Strike to Plaintiff’s Sur-Reply to the

Defendants’ Supplemental Motion for Summary Judgment (DE # 116). The Defendants

again contend that the Plaintiff’s Sur-Reply (DE ## 114, 115) is improper under the

Federal Rules of Civil Procedure and Rule 7.1 (c) of the Local Rules of Civil Procedure.

In addition, the Defendants contend that the Sur-Reply filings by the Plaintiff do not raise

any new issues for the Court to consider but instead are simply an attempt by the

Plaintiff to further burden the Court with repetitive and irrelevant arguments. In

Response, the Plaintiff contends that the Sur-Reply filings point to additional documents

in this case that “bring[ ] some of the truth of this case to the surface.” (DE # 118 at 2).

Given the Plaintiff’s pro se status and the fact that the Defendants set forth a

complete recitation of a Statement of Undisputed Facts in the Reply brief to their

Supplemental Motion for Summary Judgment (DE # 113), the undersigned finds that it is

is appropriate to permit the Plaintiff’s Sur-Reply filings (DE ## 114, 115) to stand.

Accordingly, the Defendants’ Motion to Strike Plaintiff’s Response to Defendants’ Reply

Brief in Support of Defendants’ Supplemental Motion for Final Summary Judgment (DE #

116) is denied. The Defendants, may, however, file an additional response to the

Plaintiff’s Sur-Reply, on or before November 5, 2012, if they so elect. The Plaintiff shall

not file a response to that filing.

VII. CONCLUSION

Therefore, for the reasons stated above, and upon a review of the record as a

whole, it is hereby

ORDERED AND ADJUDGED that the Plaintiff’s Motion for Summary Judgment

15


(DE # 72) is DENIED without prejudice. On or before October 19, 2012, the Plaintiff may

refile his Motion for Summary Judgment consistent with the directives set forth above in

this Order. On or before November 5, 2012, the Defendants may file a response to the

Plaintiff’s Motion for Summary Judgment directed to the claims in the Second Amended

Complaint. On or before November 15, 2012, the Plaintiff may file a Reply. It is further

ORDERED AND ADJUDGED that the Defendants’ Motion for Summary

Judgment (DE # 83) is DENIED as Moot. It is further

ORDERED AND ADJUDGED that the Defendants’ Motion to Strike Plaintiff’s

Response to Defendants’ Reply Brief in Support of Defendants’ Motion for Final

Summary Judgment (DE # 93) is DENIED as moot. It is further

ORDERED AND ADJUDGED that the Defendants’ Motion to Strike Plaintiff’s

Response to Defendants’ Reply Brief in Support of Defendants’ Supplemental Motion for

Summary Judgment (DE # 116) is DENIED. On or before November 5, 2012, the

Defendants may file an additional response to the Plaintiff’s Sur-Reply, if the Defendants

so elect. The Plaintiff shall not file an additional response to that filing.

DONE AND ORDERED in chambers, in Miami, Florida, on September 28, 2012.

______________________________________
ANDREA M. SIMONTON
U.S. MAGISTRATE JUDGE

Copies furnished via CM/ECF to:

Counsel of Record and pro se Plaintiff

16

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