Laratta v. Burbank et al

Filing 114

OPINION AND ORDER adopting 112 Recommendation of United States Magistrate Judge and granting 103 Motion to Dismiss by Chief Judge Marcia S. Krieger on 12/5/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
CHIEF JUDGE MARCIA S. KRIEGER
Civil Action No. 12-cv-02079-MSK-KMT
GIOVANNI LARATTA,
Plaintiff,
v.
DENNIS BURBANK,
SEAN FOSTER,
LYNNE TRAVIS, and
TINO HERERRA,
Defendants.

OPINION AND ORDER ADOPTING RECOMMENDATION
AND GRANTING MOTION TO DISMISS

THIS MATTER comes before the Court on the Magistrate Judge’s Recommendation
(#112) that Defendant Dennis Burbank’s Motion to Dismiss (#103) be granted. The Plaintiff,
Giovanni Laratta, filed a timely Objection (#113) to the Recommendation.
ISSUE PRESENTED
As relevant to the instant motion, Mr. Laratta’s Fourth Amended Complaint (#92) asserts
that Mr. Burbank violated 42 U.S.C. § 1983 when he affirmed a prison disciplinary conviction
against Mr. Laratta. Mr. Laratta contends that Mr. Burbank retaliated against Mr. Laratta for
having filed a grievance against a correctional officer.
Mr. Burbank moved to dismiss the retaliation claim against him on the grounds that Mr.
Laratta failed to plead sufficient facts to state a retaliation claim, and if sufficient facts were

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pled, then because he is entitled to qualified immunity. The Court referred the motion to the
Magistrate Judge for a Recommendation.
The Magistrate Judge recommended that the retaliation claim against Mr. Burbank be
dismissed for failure to state a claim because Mr. Laratta failed to allege facts to support a claim
that Mr. Burbank acted with retaliatory motive, and that Mr. Burbank is entitled to qualified
immunity because Mr. Laratta failed to establish that Mr. Burbank violated his constitutional or
statutory rights.
Mr. Laratta filed a timely objection to the Magistrate Judge’s Recommendation. He
objects to the Magistrate Judge’s finding that the Fourth Complaint failed to contain sufficient
factual allegations to show that Mr. Burbank acted with a retaliatory motive. The Court’s review
is limited to this issue which it considers de novo.1
FACTS
The following facts are derived from the allegations set forth in the Fourth Amended
Complaint.
While incarcerated at the Centennial Correctional Facility (CCF), Mr. Laratta filed a
grievance alleging that a correctional officer engaged in sexual misconduct by attempting to
develop an inappropriate relationship with him.2 Defendant Tino Herrera investigated the
grievance, and then told Mr. Laratta that, because Mr. Laratta did not offer any evidence of the
alleged sexual misconduct, Mr. Herrera intended to initiate disciplinary proceedings against him.
1

When a magistrate judge issues a recommendation on a dispositive motion, the parties
may file specific, written objections within fourteen days after being served with a copy of the
recommendation. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The district court reviews de
novo determination those portions of the recommendation to which a timely and specific
objection is made. See United States v. One Parcel of Real Prop. Known as 2121 E. 30th St., 73
F.3d 1057, 1060 (10th Cir. 1996).
2

The facts underlying Mr. Laratta’s grievance are not relevant to the retaliation claim and
therefore are not discussed.
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Mr. Herrera then directed Defendant Lynne Travis, a correctional officer lieutenant at CCF, to
file a charge of “False Reporting to Authorities” in violation of the Code of Penal Discipline
(COPD) against Mr. Laratta for False Reporting.
After a hearing, Mr. Laratta was found guilty of the offense, and the CDOC imposed a
sentence of fifty days punitive segregation and forfeiture of forty-five days of good time.
Defendant Sean Foster, the Associate Warden of CCF, affirmed the guilty finding.
Mr. Laratta filed an administrative appeal of his COPD conviction. Mr. Burbank,
Administrative Services Manager of CCF, upheld the guilty finding, certifying that he believed
there was competent evidence in the hearing record to support the finding that Mr. Laratta had
knowingly made a false allegation of misconduct by a correctional officer. Sometime later, in a
separate legal proceeding a court determined that the record of the disciplinary hearing
inadequate to support the conviction and directed a rehearing. . The Fourth Amended Complaint
conclusorily asserts that Mr. Burbank upheld the guilty finding in retaliation against Mr. Laratta
having grieved the corrections officer in the first place.
STANDARD OF REVIEW
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all
well-plead allegations in the Complaint as true and view those allegations in the light most
favorable to the nonmoving party. Stidham v. Peace Officer Standards and Training, 265 F.3d
1144, 1149 (10th Cir. 2001), quoting Sutton v. Utah State Sch. For the Deaf & Blind, 173 F.3d
1226, 1236 (10th Cir. 1999). The Court must limit its consideration to the four corners of the
Complaint, any documents attached thereto, and any external documents that are referenced in
the Complaint and whose accuracy is not in dispute. Oxendine v. Kaplan, 241 F.3d 1272, 1275
(10th Cir. 2001); Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002).

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A claim must be dismissed if it fails to state a claim for relief that is “plausible on its
face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). To make such an assessment, the Court
first discards those averments in the Complaint that are merely legal conclusions or “threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements.” Id. at
1949-50. The Court takes the remaining, well-pled factual contentions, treats them as true, and
ascertains whether those facts support a claim that is “plausible” or whether the claim being
asserted is merely “conceivable” or “possible” under the facts alleged. Id. at 1950-51. What is
required to reach the level of “plausibility” varies from context to context, but generally,
allegations that are “so general that they encompass a wide swath of conduct, much of it
innocent,” will not be sufficient. Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir.
2012).
ANALYSIS
Prison officials may not retaliate against a prisoner for exercising of his or her
constitutional rights. Smith v. Maschner, 899 F.2d 940, 947 (10th Cir. 1990); see also Fogle v.
Pierson, 435 F.3d 1252, 1264 (10th Cir. 2006). To establish retaliation claim under 42 U.S.C.
§1983, a plaintiff must show that (1) he was engaged in constitutionally protected activity, (2)
the defendant’s actions caused him injury that would chill a person of ordinary firmness from
continuing to engage in that activity, and (3) the defendant’s actions were substantially motivated
as a response to his constitutionally protected conduct. Nielander v. Bd. of Cnty. Comm’rs of
Cnty. of Republic, Kan., 582 F.3d 1155, 1165 (10th Cir. 2009). The third component requires a
plaintiff to establish “that the defendants’ alleged retaliatory motives were the ‘but for’ cause of
the defendants’ actions.” Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir.1998). To do so,

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the plaintiff “must allege specific facts showing retaliation because of the exercise of the
prisoner’s constitutional rights.” Id. (quotation omitted).
Of over one hundred and fifty paragraphs of factual allegations in the Fourth Amended
Complaint, only two (#143; #144) pertain to Mr. Burbank’s actions. They contain only
conclusory allegations that Mr. Burbank “affirmatively and consciously participated in the False
Reporting disciplinary action against Mr. Laratta in retaliation for Mr. Laratta’s lawful and good
faith exercise of his right to utilize the CDOC grievance process to make a complaint about
CDOC staff misconduct” and that, in doing so, Mr. Burbank “willfully, wantonly, and recklessly
disregarded Mr. Laratta’s constitutional rights.” Such allegations fail to state any specific facts
which suggest that Mr. Burbank’s motive in affirming Mr. Laratta’s conviction, much less that
he had a retaliatory motive, or that a retaliatory motive was “but for” cause for his decision to
affirm the disciplinary decision. See Dawson v. Johnson, 266 Fed. Appx. 713, 716 (10th Cir.
2008).3
Mr. Laratta argues that a retaliatory motive can be inferred from other facts, however. He
points to the Fourth Amended Complaint’s allegations that, after his case was remanded by a
state court to CDOC for a new hearing, the chairperson of the second hearing found Mr. Laratta
not guilty of the False Reporting charge “based solely on the facts and evidence” that had been
available Mr. Burbank.

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This is in contrast to the specific factual allegations made against the other Defendants. For
example, Mr. Laratta asserts that Mr. Foster, who signed the original COPD disposition, (1) was
obligated to independently determine whether there was competent evidence in the record to
support a guilty finding, (2) was aware that the Mr. Travis and Mr. Herrera failed to conduct a
thorough and complete investigation into whether Mr. Laratta had knowingly made a false
allegation of misconduct, and (3) predetermined that Mr. Laratta should be convicted of False
Reporting. Mr. Laratta does not assert any similar facts to support his claim against Mr.
Burbank.
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Construing this allegation most favorably to Mr. Laratta, it is essentially a “Monday
morning quarterbacking” argument – that because a court and hearing officer found the evidence
at the first disciplinary hearing inadequate to convict, Mr. Burbank must have been wrong and
had a retaliatory motive when he affirmed the initial decision. This, too, is insufficient to show
retaliatory motive on the part of Mr. Burbank. It might call into question whether Mr. Burbank
adequately performed his job in affirming Mr. Laratta’s COPD conviction, but by itself creates
no inference as to Mr. Burbank’s motivation in doing so.
The allegations in the Fourth Amended Complaint are insufficient to support an
inference that Mr. Burbank’s affirmance of the disciplinary conviction was caused by his
retaliatory motive. Mr. Laretta has amended his Complaint several times, and makes no request
to make further factual amendment. Therefore, the claim against Mr. Burbank is properly
dismissed.
CONCLUSION
IT IS THEREFORE ORDERED that
(1) For the foregoing reasons, Mr. Laratta’s Objection (#113) to the Magistrate Judge’s
Recommendation is overruled.
(2) The Court ADOPTS the Recommendation (#112) and GRANTS Mr. Burbank’s Motion
to Dismiss (#103).
Dated this 5th day of December, 2014.
BY THE COURT:

Marcia S. Krieger
Chief United States District Judge

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