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Laratta v. Raemisch

United States District Court, D. Colorado

March 26, 2014

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

MARCIA S. KRIEGER, Chief District Judge.

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, 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 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 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.

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 ...


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