UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ GIOVANNI LARATTA, Plaintiff - Appellant,

v. SEAN FOSTER, Associate Warden, Centennial Correctional Facility, in his individual capacity; LYNN TRAVIS, Correctional Officer Lieutenant, Centennial Correctional Facility, in his individual capacity; TINO HERRERA, Investigator, Office of the Inspector General, in his individual capacity; DENNIS BURBANK, Administrative Services Manager, Centennial Correctional Facility, in his individual capacity; DALE BURKE, Correctional Officer, Centennial Correctional Facility, in his individual capacity; RAEANNE WILL, Correctional Officer, Centennial Correctional Facility, in her individual capacity; RICK RAEMISCH, Executive Director, Colorado Department of Corrections, in his official capacity; JAY KIRBY, Interim Inspector General, Colorado Department of Corrections, in his official capacity, Defendants - Appellees. No. 16-1283 (D.C. No. 1:12-CV -02079-MSK-KMT) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially 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. This order and judgment is not binding (continued) FILED United States Court of Appeals Tenth Circuit 

### September 20, 2017
Elisabeth A. Shumaker Clerk of Court2 ________________ _________________ Before TYMKOVICH , Chief Judge, BALDOCK and HOLMES , Circuit Judges.

________________ _________________ Giovanni Laratta, a Colorado prison inma te, sued the defendants for retaliating against him after he submitted an administrative grievance. The case went to trial against Associate Warden Sean Foster, Investigator Tino Herre ra, and Correctional Officer Lynn Travis. A jury returned a ve rdict in favor of the defend ants. Laratta unsuccessfully sought post-judgment relief and now appeals. He challenges three jury instructions and the district court’s requirement that he par ticipate in the trial from prison. Exercising jurisdiction under 28 U.S. C. § 1291, we affirm.
B ACKGROUND In February 2011, Laratta submitted a gr ievance claiming he had been “sexually harassed” by a female corrections officer wh o offered to send him “nude pictures of herself” and asked to see his “genitals.” Aplt. App., Vol. VI at 1093. He claimed that when he rejected her advances, she gave him a negative “chron” for impermissibly placing “items on [his] in-cell computer kiosk.” Id. , Vol. I at 22-23. “A chron is an informal mechanism of noting negative prisoner behavior that can have consequences for a prisoner’s . . . conditions of confinement.” Id. at 23. Following an investigation, prison offi cials charged Laratta with violating the Code of Penal Discipline by reporting a fals e allegation against a corrections officer. precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.3 A hearing officer found Laratta guilty of th e offense and forfeited some of Laratta’s privileges and good-time credits. A state cour t later ordered a new disciplinary hearing, however, and Laratta wa s found not guilty. Laratta then initiated this 42 U.S.C. § 1983 case, claiming he was prosecute d, convicted, and sanctioned “in retaliation for his lawful, good-faith grievance” in viola tion of the First Amendment. Aplt. App., Vol. I at 43. At trial, Laratta participated by vide o conference and an open telephone line with his attorney. At the close of evidence, the di strict court instructed the jury that a First Amendment retaliation claim ha s three elements: (1) prot ected activity—i.e., Laratta’s submission of a grievance; (2) a defendant’s personal participati on in the decision to charge and prosecute Laratta; and (3) a “[d]efendant [being] substantially motivated by the fact that Mr. Laratta had filed a grieva nce in deciding to charge him with false reporting.” Id. , Vol. VI at 1084. Over Laratta’s objection, the district court instructed the jury that the substantial-motivation element turned on “the [d]efendant’s intention” and could be gleaned from a number of discretionary factors: (i) the amount of time that passed between the [d]efendant learning of Mr. Laratta’s grievance and the [d]efe ndant’s decision to charge [him]; (ii) the amount of thought and care th at the [d]efendant put into making the decision; (iii) the nature and comple teness of the investigation that was conducted; (iv) the degree to wh ich the evidence suggested that Mr. Laratta’s statements in the grievance were actually false and the extent to which the eviden ce suggested that Mr. Laratta knew that the statements were false; (v) the degree to which you believe the [d]efendant acted in good faith or bad faith when deciding to bring the charges; and (vi) any other factors that you believe illustra te the [d]efendant’s intention in deciding to charge Mr. La ratta with false reporting.4 Id. at 1086. The district court reasoned th at the defendant’s in tention was necessary because, without it, “any disciplinary charge brought after an inmate files a grievance that either references the grievance or references the . . . content of the grievance” would “be unconstitutional[ ] . . . per se .” Id. at 1009. The district court further in structed the jury not to cons ider anything that occurred after Laratta was charged with false reportin g. The court explained that the “ultimate question” was “whether the decision by any [d]efendant to bring those charges was retaliation for Mr. Laratta” filing a grievance. Id. at 1087. The jury returned a defense verdict and the district court entered judgment on March 3, 2016. Twenty-eight days later, on March 31, Laratta move d under Federal Rule of Civil Procedure 59 for a new trial and to alter or amend the judgment, arguing that the district court’s substantial-motiv ation instruction was erroneous. On Friday, April 1, the district court denied the motion in a minute order, explaining that Laratta had not complied with Local Rule 7. 1(a), which states: “Before filing a motion, counsel for the moving party . . . shall confer or make reasonable good faith efforts to confer with any opposing coun sel . . . to resolve any disputed matter. The moving party shall describe in the motion, or in a certificate attach ed to the motion, the specific efforts to fulfill this duty. ” D. Colo. L. Civ. R. 7.1(a). On Monday, April 4, Laratta filed the mo tion again, this time with a Rule 7.1(a) conferral statement. And on May 24, he moved for an exte nsion of time to appeal from the judgment.5 The district court denied both of Laratta’s motions on July 5. It concluded that the substantial-motivation element of a retalia tion claim should take into consideration whether “the contents of a[n] [inmate’s] grievance reflect an independent act of misconduct ( e.g. , threats, harassment),” and not just whether the inmate was disciplined for “the act of filing a grievance.” Aplt. App ., Vol. IV at 624. The district court next concluded—erroneously—that Laratta’s appeal period expired on Sunday, April 3, and therefore, his extension motion was untimely as it had to have been filed by May 3. The district court did state, however, that it “woul d otherwise be inclined to grant Mr. Laratta a three-day extension of the deadlin e for filing a Notice of Appeal.” Id. at 633. Laratta filed his notice of appeal the ne xt day, designating both the judgment on the jury’s verdict and the order denyi ng his renewed post-judgment motion. Discussion I. Appellate Jurisdiction The defendants mistakenly a ssert that this court lack s jurisdiction to consider Laratta’s appeal. We begin by noting that Laratta’s timely Marc h 31 motion for a new trial and to alter or amend the judgment tolle d the time in which to appeal, and the 30-day appeals clock started running from the da te the motion was denied—April 1st. See Fed. R. App. P. 4(a)(4)(A) (stating that “the tim e to file an appeal r uns for all parties from the entry of the order disposing of” a timely post-judgment motion, such as a Rule 59 motion for a new trial or to alter or amend th e judgment); Fed. R. Civ. P. 59 (requiring that motions for a new trial or to alter or amend the judgment be filed no later than 28 days after the judgment’s entry). Thus, Laratta had until either (1) Monday, May 2nd,6 to file a notice of appeal, see Fed. R. Civ. P. 6(a)(1) (stating that if the last day of a period falls on a weekend or a holiday, the period con tinues to run until the end of the next day that is not a weekend or holiday), or (2) June 1st to file a motion to extend the time to appeal, see Fed. R. App. P. 4(a)(5)(A)(i) (authoriz ing an extension if “a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires”). Laratta chose the latter route, timely filing a mo tion for an extension on May 24. The district court would have granted th at extension motion but for its (erroneous) calculation of the appellate period. The distri ct court’s error stemmed from its view that Laratta’s March 31 motion was a nullity as it la cked a conferral stat ement. In adopting that view, the district court relied on Allender v. Raytheon Aircraft Co. , 439 F.3d 1236 (10th Cir. 2006). In Allender , this court held that the appe llant’s Rule 59 motion to alter or amend had no tolling effect because it lacked the general characteri stics of a motion. Specifically, “[i]t did not provide a single gro und for relief, let alone state the grounds for relief with reasonable specification.” Id. at 1240 (internal quotation marks omitted). But Laratta’s March 31 motion had all the characteristics of a motion. See Fed. R. Civ. P. 7(b)(1) (indica ting that motions must generally be in writing, “state with particularity the grounds for seeking the order,” and “state the relief sought”). It simply lacked a conferral statement. The Federa l Rules of Civil Procedure do not require a conferral statement as a compon ent of a valid motion. Similarly, the Federal Rules of Appellate Procedure do not co ndition tolling on the presence of a conferral statement. Indeed, the requirement of a conferral statemen t is created by a local court rule and, as such, “must not be enforced in a way that causes a party to lose any right because of a7 nonwillful failure to comply,” Fed. R. Civ. P. 83(a)(2). Despite this admonishment, Laratta lost his right to appeal directly fro m the judgment on the jury’s verdict because of the district court’s far-reaching interp retation of the local conferral rule. 1 The Ninth Circuit has expressly rejected the view that a conferral statement has any tolling significance. See Feldman v. Allstate Ins. Co ., 322 F.3d 660, 665-66 (9th Cir. 2003). And we do so now as well. Because Laratta filed his notice of appeal within the time that the district court would have extended the appeal period to had it not erroneou sly calculated the appeal period, Laratta’s appeal is timely. See Fed. R. App. P. 4(a)(5)(C) (authorizing an extension up to “30 days after the prescrib ed time or 14 days after the date when the order granting the motion is entered”). Accord ingly, we proceed to consider Laratta’s appeal from the district court’s March 3 judgment. II. Jury Instructions A. Substantial Motivation “[P]rison officials may not retaliate against or harass an inmate because of the inmate’s exercise of his constitutional rights.” Peterson v. Shanks , 149 F.3d 1140, 1144

1 We say “directly” because Laratta could have i ndirectly attacked the judgment by appealing the July 5 denial of his April 4 renewed postjudgment motion. That type of appeal, however, presents a more difficult standard of review to overcome. See Computerized Thermal Imaging, Inc. v. Bloomberg, L.P. , 312 F.3d 1292, 1296 n.3 (10th Ci r. 2002) (indicating that abuse of discretion is the standard of review applicable to postjudgm ent reconsideration motions).8 (10th Cir. 1998) (internal quota tion marks omitted). This pros cription covers the filing of administrative grievances. See Williams v. Meese , 926 F.2d 994, 998 (10th Cir. 1991). To establish a First Amendment retalia tion claim, a prisoner must demonstrate three elements: “(1) that [h e] was engaged in c onstitutionally protected activity; (2) that the defendant’s actions caused [him] to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the defendant’s adverse action was substantially motivated as a response to [his] exercise of constitutionally protected conduct.” Shero v. City of Grove , 510 F.3d 1196, 1203 (10th Cir. 2007) (emphasis added). Laratta argues the district court erred in its jury instruction explaining the substantial-motivation factor. He contends that the court’s explanation, using six discretionary factors, “does not go to causati on but rather [the] [d]efendants’ state of mind.” Aplt. Opening Br. at 15. He compla ins he was required to meet a heightened burden, rather than simple but-for causation. 2 “We review de novo whether jury instruc tions, as a whole, correctly state the law and provide the jury with an understanding of the issues.” United States v. Little ,

2 Laratta concedes he is not argui ng a prisoner cannot constitutionally be punished for submitting a false grievance. See Aplt. Opening Br. at 17 (“assuming the facial constitutionality of the False Reporting charge”); Reply Br. at 3 n.1 (stating that whether “the First Amendment prohib its prison officials from punishing even false speech . . . is not at is sue in this appeal”). Inde ed, he does not challenge the jury instruction providing that the First Am endment does not protect a grievance that is “frivolously made, knowingly false, or filed simply for the purpose of harassment.” Aplt. App., Vol. VI at 1085.9 829 F.3d 1177, 1181 ( 10th Cir. 2016). We will reverse “only if we have substantial doubt that the jury was fairly guided.” Id. (internal quotation marks omitted). We agree with the district court that a de fendant’s state of mind is relevant to the substantial-motivation inquiry. After all, this inquiry fo cuses on why prison officials took adverse action against the prisoner. See Worrell v. Henry , 219 F.3d 1197, 1213 (10th Cir. 2000) (probing the defendant’s motivation for taking adverse action); Peterson , 149 F.3d at 1144 (same). Indeed, in esta blishing the three-factor retaliation test employed by the district court, this court specif ically stated that the test “focus[es] on the protected activity, the effect of the defendant’s actions, and the defendant’s intent .” Worrell , 219 F.3d at 1213 (emphasis added). Thus, if the defendants here perceived that Laratta submitted the grievance to harass the officer who imposed the negative ch ron, then the jury could have found the defendants were not substantially motivated to punish Laratta for th e mere submission of a grievance. Cf. Smith v. Nelson , 618 F. App’x 436, 439 ( 10th Cir. 2015) (concluding that the district court properly dismissed pr isoner’s retaliation claim where he “presented nothing to suggest that [correc tions officers] discip lined him as retaliation for his filing of a grievance—rather than due to their very real perception of his words as a threat”). Further, the district court provided six di scretionary factors to assist the jury’s substantial-motivation inquiry. Laratta purports to contest th ese factors, but he offers only perfunctory challenges to the factors as a whole, claiming they “did not accurately capture the nature of the ‘subs tantially motivated’ element” and provided only “a milieu of vague criteria.” Aplt. Opening Br. at 15-16. “Th[is] court will not consider . . . issues10 adverted to in a perfunctory manner, un accompanied by some effort at developed argumentation.” United States v. Wooten , 377 F.3d 1134, 1145 ( 10th Cir. 2004) (internal quotation marks omitted). In any event, we note the district court informed the jurors they could consider “a ny other factors” illustrative of the defendants’ intent. Aplt. App., Vol. VI at 1086. 3 In sum, the district court’s substantial-mo tivation instruction fair ly guided the jury. B. Excluding Evidence of Events After the False-Reporting Charge Laratta argues the district court erred by instructing the jury not to consider any events that occurred after the false-reporting charge. He comp lains that “had the district court not instructed the jury that it was prohibited from cons idering such evidence, [he] would have introduced evidence that” he su cceeded in overturnin g the charge. Aplt. Opening Br. at 20. This argument is somewhat perplexing. During trial, the district court provis ionally excluded evidence of post-charge events, questioning “how an after-the-fact de termination can be used to show that the bringing of the charge was not justified.” Aplt. App., Vol. V at 754. Later in the trial, the district court invited Laratta “to la y a more detailed foundation that would demonstrate the relevance of the proffered evidence.” Id. , Vol. VI at 1007. Laratta

3 The factors did not, as Laratta claims in his reply brief, require the jurors to find the defendants acted with “ill will.” Re ply Br. at 4. Alt hough one factor asked whether the defendants acted in good or bad faith, it did so in the context of the substantial-motivation inquiry, and there wa s no mention of good or bad faith in the instruction listing the elements the jury had to find for reta liation. Further, “issues raised by an appellant for th e first time on appeal in a reply brief are generally deemed waived.” Wheeler v. Comm’r , 521 F.3d 1289, 1291 (10th Cir. 2008).11 chose, however, “not to lay further foundation and abandoned the proffered evidence.” Id. (emphasis added). Consequently, the distri ct court ruled that “[t]he curtain rises on the story on . . . the date on which Mr. Laratta filed his grievance . . . [a]nd that same curtain falls on or about [the date] when th e false reporting charges were brought against
Mr. Laratta.” Id. The district court reasoned that, by the latter date, “the constitutional violation, if any, had been completed[,] [a ]nd the events falling ou tside this time frame are of suspect relevance.” Id. Then, when the district cour t was settling jury instructions, Laratta objected to the limiting instruction, sta ting “that it is relevant what happened after the false reporting charge was brought.” Id. , Vol. V at 998. Initially, Laratta seems to have waived his challenge to the instruction by abandoning at trial the evid ence of post-charge events. Laratta does not address on appeal his decision to not pursue the evidence. But even if the instructional challenge is not waived, we conclude that the district court did not abuse its discretion in removi ng from the jury’s cons ideration any evidence of post-charge events. See McCue v. Kan. Dep’t of Human Res. , 165 F.3d 784, 788 (10th Cir. 1999) (“We also review the district cour t’s decision to limit or refusal to limit the scope of evidence for abuse of discretion.”). The fact that Laratta was exonerated after a state court ordered a new hearing does not be ar on the defendants’ motivation for initially charging him. See Fed. R. Evid. 401 (“Evidence is rele vant if . . . it has any tendency to make a fact more or less probable than it wo uld be without the evidence[ ] and . . . the fact is of consequence in determining the action.”).12 C. Personal Participation Laratta argues the district court erred by instructing the jury it had to find each defendant “personally participated in the de cision to charge and prosecute” him. Aplt. App., Vol. VI at 1084. He contends the instruction was too na rrow and should have instead required the jury to find each defendant “took action to charge [him] with and convict [him] of a violation of the [Code of Pe nal Discipline].” Aplt. Opening Br. at 23. According to Laratta, his proposed instructio n would have made Investigator Herrera liable for “set[ting] in motion a series of ev ents that he knew or reasonably should have known would cause” Associate Warden Foster and Correctional Officer Travis to levy the false-reporting charge. Id. at 24. In resolving this issue, we need not assess the degree to which the district court’s personal-participation instruc tion would or would not have capture d Herrera’s liability for setting in motion events that culminated in the false-reporting charge. This is so, because at trial, Laratta’s only concern was th at the instruction covered both charging and convicting him. Aplt. App., Vol. V at 987. The defendants responded that the hearing officer who convicted Laratta was “not in this action.” Id. at 988. Thus, the district court found the fact of conviction irrelevant. We c onclude that the distri ct court did not abuse its discretion in resolving the ob jection that was actually raised. 4

4 “When considering a party’s challenge to jury instructions, our initial inquiry is whether the party properl y preserved that issue for appeal by objecting at the district court level to the instruction on the same gr ounds raised on appeal.” Comcoa, Inc. v. NEC Tels., Inc. , 931 F.2d 655, 660 (10th Cir. 1991). Unpreserved challenges are reviewed only for plain error. See United States v. Bedford , 536 F.3d 1148, 1153 (continued)13 III. Laratta’s Remote Attendance at Trial Finally, Laratta asserts the district cour t erred by not permitting him to personally attend the trial. He complains it was “more difficult” to communicate with counsel, and he speculates that the jury might not have been able to hear his videoconference testimony. Aplt. Opening Br. at 19. He poi nts out that the jury, while deliberating, requested a transcript of his testimony. A prisoner-plaintiff’s “opportunity to appe ar before the court in support of his claim is a matter addressed to the court’s discretion.” Perotti v. Quinones , 790 F.3d 712, 721 (7th Cir. 2015). In exercising that disc retion, the district court “must balance the prisoner’s interest in being present physica lly in the courtroom and the government’s interest in having him remain in his place of incarceration.” Id. at 724. Balancing those interests requires a consideration of such factors as costs, security risks, and the impact of the prisoner’s remote appearan ce on both his credibility and his ability to pursue his case. See id. at 721, 725. In deciding that Laratta should appear remo tely, the district court noted that (1) he “has a significant criminal record,” which includes an aggravated -robbery conviction, Aplt. App., Vol. V at 663; (2) “he has had repetitive incidents with prison staff,” id. ; (3) the security and transporta tion costs for an estimated fou r-day trial would be high; and (4) video and telephonic means would allow meaningful participation. Id. at 666. We (10th Cir. 2008). Because La ratta does not argue for the application of plain-error review, he has waived his argument that the personal-participation instruction fails to fully account for Investigat or Herrera’s liability. See Richison v. Ernest Grp., Inc. , 634 F.3d 1123, 1131 (10th Cir. 2011).14 conclude that the district court’s decision re quiring Laratta to participate in his trial remotely was not “an arbitrary, capricious , whimsical, or manifestly unreasonable judgment.” Ralston v. Smith & Nephew Richards, Inc. , 275 F.3d 965, 968 (10th Cir. 2001) (internal quotation marks omitted). Th e district court balanced the competing interests and made a reasoned decision. Alt hough the jury reques ted a transcript of Laratta’s testimony, that alone does not re veal they could not hear him. Jurors occasionally request transcripts of testimony ev en when a witness te stifies in person. Moreover, the jury did not mention an audio problem when requesting a transcript. In short, the district court did not abuse its discretion in requiring remote attendance. C ONCLUSION The judgment of the district court is affirmed. Entered for the Court

Jerome A. Holmes Circuit Judge