United States District Court, District of Colorado
OPINION AND ORDER ADOPTING RECOMMENDATION AND GRANTING MOTION TO DISMISS
Marcia S. Krieger, Chief United States District Judge.
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.
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 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.
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. 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.
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 ...