United States District Court, D. Massachusetts
MEMORANDUM AND ORDER RE: REPORT AND RECOMMENDATION
REGARDING DEFENDANT'S MOTION TO DISMISS (DKT. NOS. 15 AND
MICHAEL A. PONSOR, U.S. DISTRICT JUDGE.
Abinel Zenon has filed this § 1983 action against
Defendant Associate Justice Margaret Guzman of the District
Court Department of the Massachusetts Trial Court. He seeks a
declaratory judgment to the effect that an open-ended gag
order issued by Defendant while presiding over a
now-concluded criminal trial in which Plaintiff was a
defendant violates his rights under the First Amendment.
moved to dismiss (Dkt. No. 15), and the motion was referred
to Magistrate Judge Katherine A. Robertson for Report and
Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and
Fed.R.Civ.P. 72. Judge Robertson issued her recommendation,
meticulously laying out the alleged facts, summarizing the
applicable law, and analyzing the merits of each of
Defendant's arguments. She recommended that
Defendant's motion to dismiss be denied. (Dkt. No. 29.)
Defendant filed a timely objection to that Report and
Recommendation, offering -- contrary to normally permitted
practice -- a new argument for dismissal. (Dkt. No. 30.)
reasons set forth below, the court will decline to adopt the
Report and Recommendation and will allow Defendant's
motion to dismiss, without prejudice to Plaintiff's
re-filing for relief in state court.
April 11, 2013, Plaintiff was arraigned in the Springfield
District Court on two counts of assault and battery.
Plaintiff was alleged to have assaulted two court officers
while he was at the Hampden County Hall of Justice addressing
a charge of driving with a suspended license. Plaintiff
asserted an affirmative defense of self-defense; he claimed
that the court officers had attacked him without provocation,
while insulting him with ethnic slurs.
defense attorney, who also represents him in the present
action, uncovered evidence that one of the court officers
involved in the incident, Alexander Sierra (Sierra), had
previously been accused of using excessive force against a
number of individuals. On July 29, 2015, in the context of
Plaintiff's pending criminal trial, Defendant granted
Plaintiff access to some documents concerning Sierra's
prior conduct. These documents included administrative
records of the trial court, two years of reports on the
officer by the Springfield Police Department, and two years
of Trial Court Incident Reports authored by Sierra himself.
The documents revealed the names of twenty-three individuals
against whom Sierra had used force over a two-year period and
the name of one individual who had filed a complaint with the
Springfield Police Department alleging that Sierra had used
records were provided to Plaintiff's attorney pursuant to
a protective order issued by Defendant. That order, partly
written and partly oral, permitted Plaintiff's attorney
and the District Attorney's office to disclose protected
information to office staff as necessary to prepare pleadings
and other documents. However, it prohibited Plaintiff's
attorney, but not the District Attorney's office, from
discussing the protected information with anyone, including
an investigator, without Defendant's permission. The oral
order also prohibited Plaintiff's attorney from
contacting the individuals named in the records to discuss
the events described.
attorney, through her independent investigation, had already
spoken to victims and witnesses about incidents involving
Sierra, and she had filed descriptions of them with the
Springfield District Court in public documents.
Plaintiff's attorney moved to exempt these incidents from
the scope of the protective order, but Defendant denied the
motion. Upon further motion, Plaintiff was permitted to
contact individuals who had witnessed four of the relevant
incidents, as well as one previously-known victim.
Defendant granted two witnesses' written requests to have
the protective order lifted with regard to incidents in which
they were involved. The alleged facts with regard to these
incidents were particularly ugly. In one instance, Sierra was
alleged to have thrown a pregnant juvenile onto the ground,
without justification, injuring her so badly that she
suffered a miscarriage. In another instance, Sierra allegedly
attacked a woman, again without justification, as she
attempted to enter the court clerk's office. Both these
women were eventually charged with assaulting Sierra.
filed a series of motions requesting that the protective
order be vacated with respect to various additional
individuals, so that they could be interviewed and summonsed
for trial, and so that the remaining use-of-force incidents
could be investigated. Defendant denied all these motions.
Plaintiff's attorney objected, citing the First
Amendment. Defendant noted the objection without explicitly
addressing Plaintiff's constitutional argument.
September 23, 2015, Plaintiff filed a petition requesting
that the Massachusetts Supreme Judicial Court (SJC) vacate
the protective order and stay the criminal trial. On October
1, 2018, a single justice of the SJC denied the petition.
October 5, 2015, Plaintiff submitted to sufficient facts in
the underlying criminal case. The assault and battery charges
were continued without a finding of guilt and without
Plaintiff stipulating to the alleged conduct. With this, the
criminal case against Plaintiff was over; no appeal was
February 4, 2016, the SJC affirmed the single justice's
ruling in a rescript opinion, noting that “it is clear
that Zenon had an adequate alternative remedy.”
Zenon v. Commonwealth, 473 Mass. 1023, 1024
(2016). The opinion went on to say:
At the time of the single justice's decision, the charges
were still pending. Had Zenon been tried and convicted of any
offense, he could have challenged the protective order on
direct appeal. ... If Zenon believes that the records have
any continuing significance now that the charges have been
resolved, he could move in the District Court for termination
or modification of the ...