*

This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

FILED

United States Court of Appeals

Tenth Circuit

October 18, 2011

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GIOVANNI LARATTA,

Plaintiff - Appellant, No. 11-1183

v. (D. Colorado)

ARISTEDES W. ZAVARAS;

ROBERT ALLEN; CHRIS BARR;

SUSAN JONES; JIM BROWN,

Defendants - Appellees.

(D.C. No. 1:09-CV-02498-REB-MEH)

ORDER AND JUDGMENT*

Before LUCERO, ANDERSON, and GORSUCH, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.
1

The defendants in this case are: Aristedes Zavaras, the Executive Director

of CSP; Susan Jones, the Warden; Robert Allen, the Associate Warden; Chris

Barr, a correctional officer; and Jim Brown, a correctional officer.

2

There were other decisions entered by the district court, but the two major

decisions provide most of the reasoning behind the ultimate dismissal of this case.

-2-

Plaintiff and appellant, Giovanni Laratta, a prisoner in the Colorado State

Penitentiary (“CSP”), proceeding pro se, appeals the dismissal of his complaint

against the defendants in his 42 U.S.C. § 1983 action.1

 For the following reasons,

we affirm.

BACKGROUND

We derive the basic undisputed facts from one of the two dispositive

magistrate judge reports and recommendations entered in this case, which were

adopted for the most part by the district court.2

 The factual portions of the reports

and recommendations were adopted in full.

CSP is a maximum security/administrative segregation facility, and as such

is the most secure and restrictive facility within the Colorado Department of

Corrections (“CDOC”). As indicated, Mr. Laratta is imprisoned there. Prisoners

in CSP are managed pursuant to Operational Memorandum (“OM”) 650-100,

which provides for increased levels of privileges for appropriate behavior and

program compliance. Property belonging to prisoners is managed in accordance

with CDOC Administrative Regulation (“AR”) 850-06. AR 850-06(IV)(D)
-3-

provides that “[a]fter initial processing, offenders will be permitted to acquire

authorized personal property, through approved sources of supply and the CDOC

Canteen, as long as the increase of property does not violate the personal property

limitations.” AR 850-06(IV)(D)(1)(b) further provides that “[t]he Canteen will be

the sole source for all personal property items with the exception of books,

magazines, legal papers, hobby craft items, health care items, and faith items

. . . .”

Prisoners who receive mail must comply with the procedures in AR 300-38. 

AR 300-38(IV)(B)(8)(a) provides that “[a]ll censorable or rejected reading

material shall be forwarded to the facility reading committee and disposed of

pursuant to AR 300-26,” the regulation regarding prisoner reading material. If a

piece of mail is rejected, it “may be returned to the sender at the expense of the

offender or disposed of at the discretion of DOC employees. The offender shall

receive a written notification of the rejection utilizing the ‘Notice of

Rejection/Disposition of Mail’. . . within ten days of receipt of the item by DOC

mailroom employees.” Another regulation permits DOC employees to open any

incoming or outgoing mail to inspect it. These regulations apply to the events

giving rise to Mr. Laratta’s case.

On or around December 10, 2008, the CSP mailroom received photographs

that were intended for Mr. Laratta. Mr. Laratta’s father claimed that he had

mailed forty photographs to his son. CSP employees determined that the
-4-

photographs should be reviewed by the facility’s reading committee. The

photographs never, in fact, reached the committee; rather, they were inadvertently

destroyed.

Mr. Laratta followed the CDOC grievance procedure to address the

destruction of the photographs. At step 3 of the grievance procedure, a CSP

grievance officer investigated Mr. Laratta’s complaints and determined that he

had received eight commercial photographs through the mail, that the photos were

confiscated, placed in the Contraband Room and subsequently destroyed. The

officer further determined that Mr. Laratta should have been given the

opportunity to determine the disposition of the photos before their destruction,

and that Mr. Laratta was entitled to reimbursement for the destroyed photos. 

Ultimately, Mr. Laratta’s inmate account was credited with $8.00, the retail value

of the photos.

On or about February 17, 2009, a utility calendar arrived in the CSP

mailroom, intended for Mr. Laratta. At CSP, calendars are considered personal

property and are subject to the restrictions contained in AR 850-06. Given that,

by regulation, “[t]he Canteen will be the sole source for all personal property

items . . .,” the calendar was deemed to be contraband, inasmuch as it was not

from the Canteen. Accordingly, on February 17, 2009, a Notice of

Rejection/Disposition of Mail was issued to Mr. Laratta, indicating that the

calendar was declared to be contraband and Mr. Laratta would need to designate
-5-

the proper disposition for it within ten days or the calendar would be disposed of

pursuant to regulation. On February 23, 2009, Mr. Laratta executed the

designation of disposition for the calendar, requesting that it be sent to his father. 

Mr. Laratta claims that correctional officer Jim Brown returned those documents

to him on March 3, 2009, indicating that the calendar had been destroyed that

day. Officer Brown claims Mr. Laratta failed to inform the mailroom staff of the

desired disposition of the calendar within the ten-day limit. The calendar was, in

fact, destroyed on March 3.

The final dispute involved the receipt by Mr. Laratta of paralegal

correspondence course materials. Prisoners at CSP are not permitted to belong to

any academic/educational correspondence courses. This restriction is based upon

the maximum-security/administrative segregation nature of CSP and its programs

aimed at changing prisoner behavior to prepare the prisoner to transition to a

general population prison setting. Once a prisoner is out of CSP, he may

participate in correspondence courses. These materials were accordingly

confiscated.

Mr. Laratta filed the instant pro se civil rights complaint on October 23,

2009, alleging that his First, Fifth and Fourteenth Amendment rights had been

violated by the defendants when they confiscated and/or destroyed his incoming

mail. Upon initial review, the district court determined that Mr. Laratta failed to

state due process claims for deprivation of his personal property, and it therefore
-6-

dismissed the Fifth and Fourteenth Amendment due process claims against all the

defendants. The only remaining claims were the First Amendment claims against

the named defendants. Mr. Laratta sought injunctive relief, compensatory

damages and punitive damages.

Defendants Executive Officer Zavaras, Associate Warden Allen, and

Warden Jones filed a motion to dismiss the complaint. They argued: (1) to the

extent Mr. Laratta brought his claims against them in their official capacities,

they were entitled to Eleventh Amendment immunity from suit; (2) to the extent

Mr. Laratta brought his claims against them in their individual capacities, they

were entitled to qualified immunity; (3) Mr. Laratta failed to allege their personal

participation in the challenged conduct; and (4) Mr. Laratta has failed to state a

claim for compensatory damages. Defendant correctional officer Barr filed an

answer to the complaint. Defendant Brown was added as a defendant later on in

the suit.

Mr. Laratta responded that he was only suing the defendants in their

individual capacities; that he had adequately alleged personal participation; and

that he was entitled to compensatory damages.

On May 6, 2010, Mr. Laratta filed a motion for leave to amend his

complaint, seeking to add a First Amendment claim against correctional officer
3

These clarifications related to what particular steps in the grievance

procedure each defendant allegedly participated in. Thus, Mr. Laratta made it

clear that he challenged Associate Warden Allen’s rejection of his claim at step 2

of the grievance procedure; Executive Director Zavaras’ participation in step 3 of

the grievance; and Warden Jones’ involvement in step 1 of the grievance. 

-7-

Brown. He also wished to “clarify” his First Amendment claims against

defendants Zavaras, Allen and Jones.3

The magistrate judge to whom the matter was referred carefully analyzed

each claim and defense and, in a thorough 22-page report and recommendation,

recommended that the defendants’ motion to dismiss be granted in part and

denied in part, and that Mr. Laratta’s motion for leave to file an amended

complaint be granted in part and denied in part. The district court adopted the

report and recommendation in full.

This resulted in the following decisions: the defendants’ motion to dismiss

was granted as to (1) Mr. Laratta’s claims for compensatory damages for mental

or emotional injuries; (2) his claims against the defendants in their official

capacities; (3) his claims against defendants Allen and Zavaras in their individual

capacities; and (4) his claims against defendant Jones regarding her application of

regulations in the denial of his grievance. The motion to dismiss was denied as

to Mr. Laratta’s claims against defendant Jones regarding her implementation of

certain policies regarding mail. Furthermore, Mr. Laratta’s motion for leave to

file an amended complaint was granted as to (1) his request to amend his claims

against defendant Jones regarding the mail policies; and (2) his request to amend
-8-

his complaint to add a claim against defendant Brown. The motion to amend was

denied as to (1) his request to amend his claims against defendants Barr, Allen

and Zavaras; and (2) his request to amend his claim against defendant Jones

regarding her application of a regulation in connection with his grievance. This

decision had the effect of removing defendants Zavaras and Allen completely

from the law suit.

On December 2, 2010, the remaining defendants filed a motion for

summary judgment, which again was referred to a magistrate judge. The

defendants sought summary judgment on their argument that they were entitled to

qualified immunity and they sought summary judgment on Mr. Laratta’s claim of

entitlement to punitive damages.

Once again, the magistrate judge, in a 26-page decision, thoroughly and

carefully analyzed each claim as to each defendant, applying proper and familiar

summary judgment standards. With respect to defendant Brown, the magistrate

judge determined that, because Mr. Laratta had failed to demonstrate a First

Amendment violation with respect to the destruction of the photographs, he

recommended granting summary judgment on Mr. Laratta’s First Amendment

claims against Mr. Brown regarding the photographs, finding Mr. Brown entitled

to qualified immunity. With respect to the claim regarding the calendar, the

magistrate judge determined that a disputed issue of material fact remained
-9-

regarding Mr. Brown’s entitlement to qualified immunity, so the judge

recommended denying summary judgment on that claim.

With regard to defendant Jones, the magistrate judge recommended finding

her entitled to qualified immunity as to Mr. Laratta’s First Amendment claim

concerning the paralegal correspondence course, and therefore granting her

motion for summary judgment.

Finally, regarding Mr. Laratta’s claims for punitive damages, the magistrate

judge recommended denying defendants’ motion seeking summary judgment on

punitive damages for Mr. Brown’s alleged destruction of the calendar. But

because the court recommended dismissal of all other claims against Mr. Brown

and Ms. Jones, the court recommended granting defendants’ motion with respect

to punitive damages as to these claims.

On review of this latest report and recommendation, the district adopted it

in part and rejected it in part. Basically, the court rejected the magistrate judge’s

recommendation that Mr. Brown is not entitled to qualified immunity as to the

calendar incident. It concluded that the First Amendment was not implicated in

that series of events. Thus, the court concluded that Mr. Brown, like all the other

remaining defendants, was entitled to qualified immunity on all of Mr. Laratta’s

claims. It therefore granted defendants’ motion for summary judgment in its

entirety, and dismissed Mr. Laratta’s complaint with prejudice. This appeal

followed.
-10-

DISCUSSION

After the many procedural twists and turns in this case, the district court

ultimately dismissed Mr. Laratta’s complaint entirely. As indicated above, each

written decision resolving the pieces of this case was long, thorough and precise. 

We cannot improve on the reasoning and analysis provided by the district court. 

Accordingly, for substantially the reasons stated in its two decisions, adopting for

the most part and rejecting in part the reports and recommendations by the

magistrate judge, we affirm the dismissal.

CONCLUSION

The dismissal is AFFIRMED and appellant’s motion to proceed in forma

pauperis is denied. Appellant is ordered to immediately pay the remaining unpaid

balance of the filing fee. 

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge