Laratta v. Burbank et al

Filing 90

OPINION AND ORDER ADOPTING RECOMMENDATION AND GRANTING MOTION TO DISMISS IN PART: IT IS THEREFORE ORDERED that (1) For the foregoing reasons, Mr. Laratta's Objections (#79) to the Recommendation are overruled. (2) The Court theref or GRANTS IN PART the Motion to Dismiss 62 filed by Mr. Raemisch, Mr. Kirby, and Mr. Foster. (3) The Court GRANTS the Partial Motion to Dismiss 48 filed by Mr. Burke, Mr. Travis, Ms. Will, and Mr. Herrera. (4) All claims against Mr. Burke, Ms. Will, Mr. Raemisch, and Mr. Kirby are dismissed. (5) Mr. Laratta's Motion for Leave to File Fourth Amended Complaint 80 is GRANTED IN PART, insofar as Mr. Laratta may file a Fourth Amended Complaint as to the retaliatory motive of Mr. Foster, and DENIED IN PART, insofar as the remainder of the requested amendment would be futile. by Chief Judge Marcia S. Krieger on 3/26/14.(msksec, )

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.
RICK RAEMISCH, in his official capacity as Executive Director, Colorado Department of
Corrections,
JAY KIRBY, in his official capacity as Interim Inspector general, Colorado Department of
Corrections,
DENNIS BURBANK,
SEAN FOSTER,
DALE BURKE,
LYNNE TRAVIS,
RAEANNE WILL, and
TINO HERERRA,
Defendants.

OPINION AND ORDER ADOPTING RECOMMENDATION AND GRANTING
MOTION TO DISMISS IN PART

THIS MATTER comes before the Court on the Magistrate Judge’s Recommendation
(#74) on two motions to dismiss. The Magistrate Judge recommends that the Partial Motion to
Dismiss filed by Mr. Burke, Mr. Travis, Ms. Will, and Mr. Herrera (#48) be granted. The
Magistrate Judge also recommends that the Motion to Dismiss filed by Mr. Raemisch, Mr.
Kirby, and Mr. Foster (#62) be granted in part. The Plaintiff, Giovanni Laratta, filed timely
Objections (#79) to the Recommendation.
In addition, Mr. Laratta recently filed a Motion for Leave to File Fourth Amended
Complaint (#80). The time to file a response to this motion has not passed and no response has,

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as yet, been filed. However, in light of the Court’s present consideration of the Magistrate
Judge’s Recommendation, the Court considers Mr. Laratta’s motion at this time. See Local Rule
7.1(d) (“Nothing in this rule precludes a judicial officer from ruling on a motion at any time after
it is filed.”).
I.

ISSUES PRESENTED

In his Third Amended Complaint (#47), Mr. Laratta asserts that several prison officials
retaliated against him, in violation of 42 U.S.C. § 1983, by subjecting him to disciplinary
proceedings against him after he filed a grievance against a correctional officer. He also asserts
two claims challenging the constitutionality of a prison regulation prohibiting “False Reporting
to Authoritites.”
II.

MATERIAL FACTS

The following facts are derived from the allegations set forth in the Third Amended
Complaint.
A. Underlying Grievance
Mr. Laratta is incarcerated by the Colorado Department of Corrections (CDOC). While
incarcerated at the Centennial Correctional Facility (CCF), Ms. Jones, a correctional officer,
“attempted to develop an inappropriate personal relationship with Mr. Laratta.” Specifically, Mr.
Laratta asserts that Ms. Jones gave him preferential treatment, asked him personal questions,
offered to send him nude photographs, and “told [him] he was handsome.” Mr. Laratta asserts
that on January 25, 2011, Ms. Jones “peered through the window of Mr. Laratta’s cell and asked
to see his genitalia.” After this incident, Mr. Laratta asked Ms. Jones to leave him alone.
That same day, Ms. Jones filed a “negative chronological entry” or “chron” against Mr.
Laratta, accusing him of violating a rule prohibiting prisoners from placing items on their in-cell

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computer kiosks. Mr. Laratta believed that Ms. Jones had entered the chron against him in
retaliation for his rejection of her sexual advances.
On February 13, 2011, Mr. Laratta filed a step one grievance under CDOC’s inmate
grievance process, alleging that Ms. Jones engaged in sexual misconduct and filed a chron
against him in retaliation for his refusal of her advances.
B. False Reporting Charge
On March 8, 2011, Mr. Herrera, an investigator with the CDOC Office of the Inspector
General, spoke with Mr. Laratta about the allegations in the step one grievance. During this
conversation, Mr. Herrera told Mr. Laratta that, because he could not offer any objective
evidence of the alleged sexual misconduct, Mr. Herrera was going to initiate disciplinary
proceedings against Mr. Laratta under the Code of Penal Discipline (“COPD”). Mr. Herrera then
directed Mr. Travis, a correctional officer lieutenant at CCF, to file a COPD charge against Mr.
Laratta for the offense of “False Reporting to Authorities.”
On March 17, 2011, Mr. Travis interviewed Mr. Laratta. Like Mr. Herrera, Mr. Travis
asked Mr. Laratta if he could produce any evidence in support of his allegations. Mr. Laratta
suggested that Mr. Travis could review “video footage and other prison records from the unit to
see the frequency with which Ms. Jones would visit Mr. Laratta’s cell.” On March 25, 2011, Mr.
Travis formally charged Mr. Laratta with False Reporting in violation of the COPD. Ms. Will, a
correctional officer lieutenant, approved the charges by signing the charge as the “reviewing
supervisor.”
Mr. Laratta had a hearing on the COPD charge on April 1, 2011. Mr. Burke presided
over the hearing as Disciplinary Committee Chairperson. At the hearing, Ms. Will presented the
CDOC’s case against Mr. Laratta, consisting entirely of the factual allegations contained in the

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COPD charge, Mr. Laratta’s chron record, an affidavit from Ms. Jones, and a memorandum from
Mr. Herrera. Mr. Laratta presented his position, describing Ms. Jones’ conduct and stating his
belief that video footage might demonstrate the frequency of Ms. Jones’ visits to his cell.
On April 4, 2011, Mr. Burke found Mr. Laratta guilty of the charge and imposed a
sentence of fifty days punitive segregation and forfeiture of forty-five days of good time. Mr.
Foster, the Associate Warden of CCF, affirmed the guilty finding on April 6, 2011. Mr. Laratta
promptly filed an administrative appeal of his COPD conviction. On May 17, 2011, Mr.
Burbank, Administrative Services Manager of CCF, affirmed the conviction.
Mr. Laratta then began serving his fifty-day punitive segregation sentence. During that
period, Mr. Laratta suffered sleep deprivation, experienced a “psychotic break,” and attempted
suicide.
C. State Court Review
At an unspecified date, Mr. Laratta filed an action in state court challenging his COPD
conviction pursuant to C.R.C.P. 106.5, which provides for judicial review of any “quasi-judicial
hearing” by CDOC to determine whether the agency “has exceeded [its] jurisdiction or abused
[its] discretion.” The state court “agreed that CDOC had abused its discretion when it convicted
Mr. Laratta of False Reporting and remanded the matter to CDOC for a new COPD hearing.
A new chairperson presided over the hearing on remand. During that hearing, Mr. Travis
admitted that he had not reviewed the video footage that Mr. Laratta had directed him to as
possible evidence. The chairperson found Mr. Laratta not guilty of the False Reporting charge
and his 2011 COPD conviction was expunged.

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D. Current Action
Mr. Laratta’s Third Amended Complaint asserts three claims for relief. First, he contends
that Defendants Herrera, Travis, Burke, Will, Burbank, and Foster prosecuted the False
Reporting charge against Mr. Laratta in retaliation for his good-faith grievance made about Ms.
Jones’ misconduct, violating his First Amendment right to free speech under 42 U.S.C. § 1983.
Second, Mr. Laratta argues that the CDOC regulation prohibiting False Reporting violates the
First and Fourteenth Amendments to the United States Constitution because it “constitutes an
undue restraint on Mr. Laratta’s . . . rights to free speech and to petition the government for
redress of his grievances.” Third, Mr. Laratta asserts that, “both on its face and as applied,” the
False Reporting regulation is unconstitutionally vague.
Mr. Burke, Mr. Travis, Ms. Will, and Mr. Herrera (the “individual Defendants”) filed a
Partial Motion to Dismiss, arguing that: (i) as to the retaliation claim against Mr. Burke and Ms.
Will, Mr. Laratta failed to allege facts sufficient to demonstrate their retaliatory motive against
him; (ii) as to constitutional challenge to the False Reporting regulation, Mr. Laratta failed to
allege facts showing that the regulation was not “rationally related to legitimate penological
objectives” under Turner v. Safley, 482 U.S. 78, 89 (1987); (iii) as to the vagueness challenge,
Mr. Laratta failed to allege facts showing that the regulation was impermissibly vague;1 (iv) that
Mr. Laratta was not entitled to any compensatory damages because he failed to adequately allege
a physical injury as required by the Prisoner Litigation Reform Act (“PLRA”), 42 U.S.C. §
1997e(e); and (v) all the moving Defendants were entitled to qualified immunity, both due to Mr.
Laratta’s failure to state a constitutional claim and due to his inability to show that the relevant
1

It is not entirely clear to this Court whether the constitutional challenges to the False
Reporting regulation are asserted against the individual Defendants. Rather, these claims appear
to be directed at CDOC itself through the official capacity claims against Mr. Raemisch and/or
Mr. Kirby. Thus, the Court understands only Defendants Burke, Will, and Foster to be moving
to dismiss the retaliation claim against them.
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constitutional rights were “clearly established” at the relevant time. Mr. Raemisch, Mr. Kirby,
and Mr. Foster also filed a Motion to Dismiss, adopting the arguments in the individual
Defendants’ motion, as well as asserting that Mr. Laratta’s challenges to the constitutionality of
the False Reporting regulation were beyond the statute of limitations.
The Court referred the motions to dismiss to the Magistrate Judge for a Recommendation.
On February 26, 2014, the Magistrate Judge recommended that: (1) the retaliation claim should
be dismissed against Mr. Burke, Ms. Will, and Mr. Foster for failure to state a claim because Mr.
Laratta failed to sufficiently allege that each of them acted with retaliatory motive; (2) claim two
should be dismissed for failure to state a claim because Mr. Laratta failed to allege that the False
Reporting charge is unrelated to a legitimate penological interest; (3) claim three is barred by the
statute of limitations; and (4) recovery of compensatory damages is barred by the PLRA.
Mr. Laratta filed timely objections to the Magistrate Judge’s Recommendation.
Specifically, Mr. Laratta objects to the Magistrate Judge’s conclusions that: (1) Mr. Laratta failed
to adequately allege that Mr. Burke, Mr. Will, and Mr. Foster acted with retaliatory motive; (2)
Mr. Laratta’s claim that the False Reporting charge is unconstitutionally vague is barred by the
statute of limitations; (3) Mr. Laratta failed to state claim for an undue restriction on his speech
because the False Reporting charge is related to a legitimate penological interest; and (4)
compensatory damages are unavailable for Mr. Laratta’s retaliation claim under the PLRA.
While Mr. Laratta’s objections were pending before this Court, he filed a motion seeking
leave to amend. That motion asserted that, to the extent the Court was inclined to adopt the
Recommendation in whole or part, Mr. Laratta should be given the opportunity to amend his
Complaint to cure any pleading defects. He attached a proposed Fourth Amended Complaint.

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III.

STANDARD OF REVIEW

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 U.S. v. One Parcel of Real Prop. Known as 2121 E. 30th St., 73 F.3d
1057, 1060 (10th Cir. 1996).
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).
A claim is subject to dismissal 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,

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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).
IV.

ANALYSIS

A. Claim One: Retaliation
In his first claim for relief, Mr. Laratta alleges that he received a prison disciplinary
conviction in retaliation for exercising his First Amendment right to file a grievance concerning a
correctional officer’s inappropriate behavior. Mr. Laratta asserts this claim against several
CDOC employees, three of whom—Mr. Burke, Ms. Will, and Mr. Foster—have moved to
dismiss.
Mr. Burke, Ms. Will, and Mr. Foster assert the defense of qualified immunity and
challenge the adequacy of the Third Amended Complaint to state a cognizable claim. When a
defendant raises a qualified immunity defense the burden shifts to the plaintiff to meet a two-part
test. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151 (2001); Green v. Post, 574 F.3d
1294, 1300 (10th Cir. 2009). A plaintiff must show both that (1) he or she had a constitutional
right that was infringed and (2) such a right was clearly established at the time of the alleged
infringement. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 818 (2009); Green, 574
F.3d at 1299. A court can begin its analysis with either prong. The Court begins with the first
prong because the question of whether a cognizable claim has been pled is central to both to the
first prong of the qualified immunity analysis and to the defendants’ argument that the Third
Amended Complaint fails to state a claim upon which relief can be granted2.

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In the context of a motion to dismiss, the determination of whether a complaint asserts a
constitutional violation is made pursuant to the Rule 12(b)(6) standard discussed above. See
Robbins v. Okla. ex rel. Dep't of Human Servs., 519 F.3d 1242, 1249 (10th Cir. 2008).
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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) (“[I]f in fact DOC officials retaliated against
[plaintiff] based on his filing administrative grievances, they may be liable for a violation of his
constitutional rights.”). To establish a First Amendment retaliation claim, a plaintiff must show
that (1) he was engaged in constitutionally protected activity, (2) the government's actions
caused him injury that would chill a person of ordinary firmness from continuing to engage in
that activity, and (3) the government'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).
Mr. Burke, Ms. Will, and Mr. Foster argue that Mr. Laratta has failed to satisfy the third
component. 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, the plaintiff “must allege specific facts showing
retaliation because of the exercise of [his] constitutional rights.” Id. (quotation omitted).
Here, Mr. Laratta’s Third Amended Complaint merely pleads conclusions with regard to
Defendant Burke, Will, and Foster’s motivations. For example, as to Ms. Will, Mr. Laratta
merely alleges that she “willfully, waontonly, and in reckless disregard of Mr. Laratta’s
constitutional rights prosecuted the False Reporting charge against him in retaliation for lawfully
and in good faith filing a grievance against Ms. Jones.” Similarly, as to Mr. Burke, Mr. Laratta
merely alleges that he “affirmatively and consciously participated in the False Reporting
disciplinary actions against Mr. Laratta in retaliation for Mr. Laratta’s lawful and good faith
exercise of his right to utilize the CDOC grievance system . . . .” These conclusory allegations

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do not contain any specific facts that suggest that these Defendants harbored any retaliatory
motive against Mr. Laratta, much less that such motives were the “but for” cause of their actions.
See Dawson v. Johnson, 266 Fed. Appx. 713, 716 (10th Cir. 2008) (upholding the dismissal of
retaliation claims against defendants whose “only involvement was that he presided over the
disciplinary hearing,” “investigated the [] charge and presented facts in support of the charge at
the hearing,” or “affirmed [plaintiff’s] conviction”). Thus, the Third Amended Complaint fails
to plead a sufficient retaliation claim against Defendants Foster, Burke, and Will.
Because Mr. Laratta has failed to state a claim that his constitutional rights were
infringed, it is not necessary to address whether the alleged violation was clearly established.
Thus, Mr. Burke, Ms. Will, and Mr. Foster are entitled to qualified immunity on Mr. Laratta’s
retaliation claim.
B. Claim Two: Unreasonable Restriction on Speech
Mr. Laratta asserts that the COPD False reporting charge “constitutes an undue restraint
on [his] First Amendment rights to free speech and to petition the government for redress of his
grievance.” Mr. Laratta brings this claim against Mr. Raemisch and Mr. Kirby in their official
capacities. Defendants argue that the Third Amended Complaint fails to state a cognizable
claim.3
The False Reporting regulation prohibits, among other things, an inmate “mak[ing] a
report alleging criminal conduct by a DOC employee . . . knowing that the allegation is false,
untruthful, or misleading”; “mak[ing] a report alleging that a DOC employee engaged in conduct
that violated DOC policy, knowing the allegation is false, untruthful, or misleading”; and
3

In the Motion to Dismiss, Mr. Raemisch and Mr. Kirby also argued that claim two was barred
by the statute of limitations. The Magistrate Judge’s Recommendation rejected that argument
and neither party has objected to that portion of the Recommendation. The Court has reviewed
the Magistrate Judge’s Recommendation on the statute of limitations and finds no clear error.
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“knowingly provides false or misleading information during the course of an official DOC
investigation.”
A prison regulation that infringes on a prisoner’s constitutional right “is valid if it is
reasonably related to legitimate penological interests.” Turner v. Safely, 482 U.S. 78, 89, 107
S.Ct. 2254, 2261 (1987). Several factors are relevant when determining the reasonableness of a
regulation: (1) whether there is a “valid, rational connection between the prison regulation and
the legitimate governmental interest put forward to justify it”; (2) “whether there are alternative
means of exercising the right that remains open to prison inmates”; (3) whether the
accommodation of the asserted right will have an impact on guards, other inmates, and the
allocation of prison resources; and (4) whether there are other alternatives readily available. Id.
at 89–91.
However, “in ruling on a motion to dismiss, a court need only assess, as a general matter,
whether a prison regulation is ‘reasonably related to a legitimate penological interest.’” AlOwhali v. Holder, 687 F.3d 1236, 1240 (10th Cir. 2012) (quoting Gee v. Pacheco, 627 F.3d
1178, 1187 (10th Cir. 2010)). Thus, to state a cognizable claim Mr. Laratta must plead facts
from which a plausible inference can be drawn that the action was not reasonably related to a
legitimate penological interest. Gee, 627 F.3d at 1188.
Legitimate penological objectives include “deterrence of crime, rehabilitation of
prisoners, and institutional security.” O'Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S. Ct.
2400, 2404 (1987). It is patently obvious that a regulation that prohibits inmates from making
false allegations, “knowing that the allegation is false, untruthful, or misleading,” serves
legitimate purposes of maintaining institutional security and rehabilitating prisoners; no
reasonable person could suggest that prisons must grant inmates license to fabricate allegations

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of staff crimes or breaches of policy.4 In his objections, Mr. Laratta argues that the regulation is
not reasonably related to a legitimate penological interest because the punishments available for
False Reporting are particularly harsh (second only to the offenses of Murder, Manslaughter, and
Kidnapping” and equivalent to “offenses such as Escape With Force, Engaging in Riot, Rape,
and Dealing in Dangerous Drugs”), and because CDOC uses False Reporting charges as “an
exaggerated response to any problems that may exist.” The Court finds these arguments
unavailing.
“Prison administrators [] should be accorded wide-ranging deference in the adoption and
execution of policies and practices that in their judgment are needed to preserve internal order
and discipline and to maintain institutional security.” Bell v. Wolfish, 441 U.S. 520, 547, 99 S.
Ct. 1861, 1878 (1979). The decision to set a particular range of punishments for False Reporting
(or any other COPD offense) lies well within that scope of discretion afforded prison
administrators. Moreover, the Court disagrees with Mr. Laratta’s premise that inmates falsely
accusing prison officials of criminal conduct or breaches of policy are, qualitatively, less serious
offenses than dealing drugs or inciting a riot; indeed, one can just as effectively incite others to
riot by spreading false rumors or accusations against prison staff as by resorting to physical
violence. The fact that the regulation may sometimes be applied by CDOC officials in an
“exaggerated” way may be grounds for challenging the correctness of the application of the
regulation in a particular context (as Mr. Laratta did successfully in state court and at his second

4

This is not to say that false statements always fall outside of the protection of the First
Amendment. In U.S. v. Alvarez, 132 S.Ct. 2537, 2544-45 (2012), a plurality of the Supreme
Court rejected the contention that “false statements, as a general rule, are beyond constitutional
protection.” However, even that plurality contemplated that a “knowing or reckless falsehood”
might not be protected. Id. at 2545. The Court notes that the False Reporting regulation
expressly requires that the false statement be “knowingly” made before punishment may attach.
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COPD hearing), but does not suggest that the regulation is itself an unconstitutional abridgement
on inmates’ rights to free speech or the petitioning of grievances.
Thus, the Third Amended Complaint does not include sufficient facts to support a
plausible inference that the False Reporting charge is unrelated to a legitimate penological
interest. According, claim two is dismissed for failure to state a cognizable claim.
C. Claim Three: Vagueness
The Third Amended Complaint also asserts the COPD False Reporting charge is
unconstitutionally vague. Mr. Laratta brings this claim against Mr. Raemisch and Mr. Kirby in
their official capacities. Defendants argue that this claim is barred by the statute of limitations
and Mr. Laratta fails to state a cognizable claim.
1. Statute of Limitation
“Limitations periods in § 1983 suits are to be determined by reference to the appropriate
state statute of limitations . . . .” Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006). The
limitation period applicable to Mr. Laratta’s section 1983 claims is Colorado's two-year statute
of limitations, which bars suits filed more than two years after the cause of action accrued. See
id. “The statute of limitations begins to run when the plaintiff knows or has reason to know of
the existence and cause of the injury which is the basis of his action.” See Indus. Constructors
Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 969 (10th Cir. 1994).
Although this Court has some doubt that Mr. Laratta’s vagueness challenge is susceptible
to any statute of limitations – given that Mr. Laratta remains subject to the regulation’s effect and
he seeks prospective relief with regard to it – the Court nevertheless finds that Mr. Laratta’s
claim is timely in any event. Mr. Laratta sought leave to file an amended complaint adding
claims this claim against Mr. Raemisch and Mr. Kirby on June 1, 2013. Defendants argue that,

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because his claims are based on his initial False Reporting conviction, Mr. Laratta’s claim
accrued when the charge was upheld on administrative appeal on May 17, 2011. Thus,
defendants assert that Mr. Laratta’s claim for vagueness is barred by the statute of limitations
because he filed it over two years after the claim accrued. Defendants, however, offer no support
for their argument that May 17, 2011 marks the latest possible date of accrual rather than any
other date.
In Colorado, prisoners have the right to seek judicial review of any quasi-judicial hearing
conducted by a CDOC facility. C.R.C.P. 106.5; see also People v. Garcia, 259 P.3d 531, 533
(Colo. App. 2011). Mr. Laratta exercised this right after his administrative appeal was denied.
The state court completed its review on January 26, 2012 and a new COPD hearing occurred the
following month. Thus, the Third Amended Complaint contains sufficient factual allegations to
support an inference that the statute of limitations did not accrue until January or February 2012,
when Mr. Laratta obtained the reversal and expungement of the COPD conviction. Accordingly,
the Court denies defendants’ to Motion to Dismiss claim three as barred by the statute of
limitations.
2. Failure to State a Claim
Defendants also contend that Mr. Laratta has failed to state a claim that the COPD False
Reporting charge is “unconstitutionally vague.”
A statute can be impermissibly vague if it either (1) “fails to provide people of ordinary
intelligence a reasonable opportunity to understand what conduct it prohibits,” or (2) “authorizes
or even encourages arbitrary and discriminatory enforcement.” Hill v. Colorado, 530 U.S. 703,
732, 120 S. Ct. 2480, 2498 (2000). The Third Amended Complaint asserts a claim under the first
theory, arguing that “the False Reporting COPD charge provides no meaningful notice to Mr.

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Laratta as to what conduct is prohibited and subject to disciplinary action.” However, this
concern is ameliorated by the fact that False Reporting regulation contains a scienter
requirement. See id. The False Reporting charge only applies to a person who “knowingly”
provides “false or misleading” information or evidence. The Third Amended Complaint
contains no additional allegations as to why a person of ordinary intelligence would fail to
understand what conduct the regulation prohibits. See id. (“The likelihood that anyone would
not understand any of those common words seems quite remote.”).
Thus, Mr. Laratta has failed to state a cognizable claim that the False Reporting charge is
unconstitutionally vague.
D. Compensatory Damages
Mr. Burke, Mr. Travis, Ms. Will, and Mr. Herrera move to dismiss Mr. Laratta’s “claim”
for compensatory damages in connection with his retaliation claim because it is barred by the
PLRA.
The PLRA provides that “[n]o Federal civil action may be brought by a prisoner confined
in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in
custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e). The 10th Circuit
construes this language literally, finding that “mental or emotional” injuries are insufficient.
Searles v. Van Bebber, 251 F.3d 869, 876 (10th Cir. 2001).
Mr. Laratta alleges that during his time in punitive segregation he suffered from sleep
deprivation and experienced a psychotic break. He asserts that both are “physical injuries,” but
fails to offer any explanation for such a conclusion. Without more, these conclusory allegations
are insufficient to withstand the physical injury requirement of the PLRA. Therefore, he is
unable to recover compensatory damages under the PLRA.

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However, the PLRA does not bar recovery of punitive damages or nominal damages. See
Searles, 251 F.3d 869, 881 (10th Cir. 2001); Perkins v. Kansas Dep’t of Corrs., 165 F.3d 803,
808 n.6 (10th Cir. 1999). Thus, Mr. Laratta’s claim for damages can proceed to the extent he
seeks nominal and punitive damages for the retaliation claim.
V.

MOTION FOR LEAVE TO AMEND

Finally, Mr. Laratta moves for leave to file a Fourth Amended Complaint. He asserts that
the amendments would present additional allegations to address two issues: (1) the retaliatory
motives of Mr. Burke, Ms. Will, and Mr. Foster; and (2) the lack of a legitimate penological
interest for the False Reporting charge.
Although Fed.R.Civ.P. 15(a) requires that leave to amend be “freely given,” the Court
may deny such leave where it finds that amendment would be futile because the complaint, as
amended, would be subject to dismissal. Jefferson Cnty. Sch. Dist. No. R-1 v. Moody's Investor's
Servs., Inc., 175 F.3d 848, 859 (10th Cir. 1999)
Here, the proposed Fourth Amended Complaint alleges additional facts to support an
inference that Mr. Foster actions were motivated by a retaliatory purpose. Specifically, Mr.
Laratta asserts that Mr. Foster failed to delegate the investigation of Mr. Laratta’s grievance to
the Office of the Inspector General, as required by the Prison Rape Elimination Act (PREA). In
addition, Mr. Laratta asserts that Mr. Foster directed Mr. Herrera to initiate disciplinary
proceedings against Mr. Laratta for False Reporting before anyone investigated Mr. Laratta’s
grievance. Arguably, these allegations might suggest that Mr. Foster’s decision to charge Mr.
Laratta with False Reporting was not based on a conclusion that Mr. Laratta knowingly falsified
the allegations against Ms. Jones, but rather, was a reflexive response to the mere fact that Mr.

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Laratta had filed a grievance. Thus, the Court grants Mr. Laratta leave to file a Fourth Amended
Complaint as to Mr. Foster’s retaliatory motives.
As to the remainder of the deficiencies Mr. Laratta intends to address, the Court finds that
the requested amendment would be futile. As to Mr. Burke and Ms. Will, the proposed
amendments present essentially the same arguments as in the Third Amended Complaint:
namely, defendants failed to adequately perform their jobs while investigating and prosecuting
Mr. Laratta’s False Reporting charge. At best, these allegations might suggest that Defendants
Burke and Will performed their assigned jobs negligently or carelessly, but that is not enough.
Mr. Laratta is required to allege facts sufficient to suggest that these Defendants harbored a
retaliatory animus towards him, and that this animus was the but-for cause of their
decisionmaking towards him. The allegations Mr. Laratta seeks to include in a Fourth Amended
Complaint do not support an inference that a retaliatory motive was ‘but for’ cause of the actions
of either Mr. Burke or Ms. Will.
With regard to Mr. Laratta’s request to amend to cure defects in his constitutional
challenges to the False Reporting regulation, he asserts that the False Reporting charge (1) is
redundant of other disciplinary charges in the COPD, (2) was promulgated outside of the normal
procedural process, and (3) was created “as a means of discouraging and deterring prisoners
from filing PREA-related complaints against staff.” While these allegations could potentially
support other types of claims that attack the False Reporting charge (e.g. that the promulgation of
the regulation violated administrative procedures), none of the allegations support an inference
that the False Reporting charge is unrelated to a legitimate penological interest. Accordingly,
because amendment would be futile, the remainder of the motion for leave to amend is denied.

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VI.

CONCLUSION

IT IS THEREFORE ORDERED that
(1) For the forgoing reasons, Mr. Laratta’s Objections (#79) to the Recommendation are
overruled.
(2) The Court therefore GRANTS IN PART the Motion to Dismiss (#62) filed by Mr.
Raemisch, Mr. Kirby, and Mr. Foster.
(3) The Court GRANTS the Partial Motion to Dismiss (#48) filed by Mr. Burke, Mr. Travis,
Ms. Will, and Mr. Herrera.
(4) All claims against Mr. Burke, Ms. Will, Mr. Raemisch, and Mr. Kirby are dismissed.
(5) Mr. Laratta’s Motion for Leave to File Fourth Amended Complaint (#80) is GRANTED
IN PART, insofar as Mr. Laratta may file a Fourth Amended Complaint as to the
retaliatory motive of Mr. Foster, and DENIED IN PART, insofar as the remainder of the
requested amendment would be futile.
Dated this 26th day of March, 2014.
BY THE COURT:

Marcia S. Krieger
Chief United States District Judge

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