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Zenon v. Guzman

United States District Court, D. Massachusetts

January 8, 2018

ABINEL ZENON, Plaintiff,
ASSOCIATE JUSTICE MARGARET GUZMAN, in her Official Capacity, Defendant.




         Plaintiff 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.

         Defendant 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.)

         For the 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.


         On 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.

         Plaintiff's 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 excessive force.

         These 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.

         Plaintiff's 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.

         Furthermore, 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.

         Plaintiff 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.

         On 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.

         On 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 taken.

         On 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 ...

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