Zenon v. Guzman et al
Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered. As follows: For the reasons stated, the court declines to adopt the Report and Recommendation. (Dkt. No. 29 .) Defendants motion to dismiss (Dkt. No. 15 ) is hereby ALLOWED, without prejudice to Plaintiffs seeking relief from the protective order in state court. The clerk will enter judgment for Defendant. This case may now be closed. It is So Ordered. See the attached memo and order for complete details. (Lindsay, Maurice)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MARGARET GUZMAN, in her
C.A. No. 3:16-cv-30129-MAP
MEMORANDUM AND ORDER RE: REPORT AND RECOMMENDATION REGARDING
DEFENDANT’S MOTION TO DISMISS
(Dkt. Nos. 15 and 29)
January 8, 2018
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 openended 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.
Robertson issued her recommendation, meticulously laying out
the alleged facts, summarizing the applicable law, and
analyzing the merits of each of Defendant’s arguments.
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.
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
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
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.
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.
prohibited Plaintiff’s attorney, but not the District
Attorney’s office, from discussing the protected information
with anyone, including an investigator, without Defendant’s
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
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
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.
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.
instance, Sierra allegedly attacked a woman, again without
justification, as she attempted to enter the court clerk’s
Both these women were eventually charged with
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-offorce incidents could be investigated.
Defendant denied all
Plaintiff’s attorney objected, citing the
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
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.”
v. Commonwealth, 473 Mass. 1023, 1024 (2016).
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 protective
order and, if such a motion is denied, appeal in
the ordinary course from that ruling.
After the conclusion of Plaintiff’s criminal case,
Plaintiff was approached by other individuals who wished to
obtain documents regarding allegations of misconduct by
Sierra for use in legal proceedings they were involved in.
Defendant’s ongoing protective order has hampered Plaintiff
and his lawyer in providing assistance to these individuals
and from pursuing the investigation further themselves.
Plaintiff initiated this action on July 14, 2016,
alleging that the protective order violated his First
Amendment right to freedom of speech.
history of the case is somewhat unusual.
complaint named as Defendants both Justice Guzman and the
Massachusetts Trial Court, and it offered two counts, the
first based on the First and Fourteenth Amendments to the
United States Constitution, and the second based on the
Massachusetts Declaration of Rights.
(Dkt. No. 1.)
explicit reference was made in this complaint to 42 U.S.C. §
Defendant’s motion to dismiss, filed on January 3,
2017, was directed at this original complaint.
The motion was argued before Judge Robertson on April
(Dkt. No. 23.)
Before the Report and
Recommendation issued, however, Plaintiff filed an amended
complaint, dropping the claim against Defendant
Massachusetts Trial Court and asserting only one claim for
relief, explicitly pursuant to 42 U.S.C. § 1983 and against
only Defendant Justice Guzman.
(Dkt. No. 28.)
On August 23, 2017, Judge Robertson recommended that
Defendant’s motion to dismiss be denied, focusing on the
one-count amended complaint. (Dkt. No. 29.)
On September 6,
2017, Defendant filed a timely objection to that Report and
Recommendation, asserting (as noted above) a new argument -judicial immunity -- which was not raised before the
Magistrate Judge. (Dkt. No. 30.)
On October 20, 2017, the undersigned issued an order
requiring supplemental briefing on three topics: first,
whether assertion of the entirely new argument was
permissible; second, given that the criminal case had been
resolved, whether this case was now moot; and, third,
whether the availability of the state court remedy noted by
the SJC -- i.e., a motion in the state district court for
termination or modification of the protective order, with an
appeal to the SJC if necessary -- made resort to this
federal court inappropriate or improper.
(Dkt. No. 32.)
Further briefing on these additional questions
terminated on November 29, 2017.
At part of Defendant’s
submission, counsel confirmed that the protective order
still continued in effect, even after the conclusion of the
criminal case that generated it.
On a motion to dismiss for failure to state a claim,
the court must take as true the allegations of the
complaint, as well as any reasonable inferences that may be
drawn in the plaintiff’s favor.
Fed. R. Civ. P. 12(b)(6).
In order to withstand a motion to dismiss, the complaint
must allege “a plausible entitlement to relief.”
Corp. v. Twombly, 127 S. Ct. 1955, 1967 (2007).
In her original motion to dismiss, Defendant advanced
four arguments supporting dismissal: (1) that the Eleventh
Amendment bars this suit in federal court; (2) that the
Younger abstention doctrine requires, or at least counsels,
dismissal; (3) that this court lacks subject matter
jurisdiction over the complaint pursuant to the RookerFeldman doctrine; and (4) that the complaint is barred by
collateral estoppel, or what is often termed “issue
Each of these arguments was carefully analyzed and
rejected in Judge Robertson’s Report and Recommendation.
Defendant’s subsequent objection cursorily reasserted all
four initial arguments for dismissal and, as noted, added an
additional justification for dismissal, contending that as a
judicial officer acting in an adjudicatory capacity
Defendant was immune to suit under 42 U.S.C. § 1983. (Dkt.
Two of the five arguments offered by Defendant in
support of the motion to dismiss -- Eleventh Amendment
immunity and collateral estoppel -- manifestly lack force
and, for the reasons well articulated in the Report and
Recommendation, may be quickly disposed of.
First, longstanding authority identified by Judge
Robertson makes clear that lawsuits seeking prospective
equitable relief in the face of unconstitutional conduct by
a state official are not barred by the Eleventh Amendment.
Second, collateral estoppel is no bar to this suit, because
the issue Plaintiff is attempting to litigate here –whether Defendant’s protective order violates the First
Amendment -– has so far not been directly addressed in the
state court litigation.
The question whether this lawsuit is barred pursuant to
the abstention doctrine set forth originally in Younger v.
Harris, 401 U.S. 37 (1971), or for lack of jurisdiction
under the Rooker-Feldman doctrine, District of Columbia
Court of Appeals v. Feldman, 460 U.S. 462 (1983), and Rooker
v. Fidelity Trust Co., 263 U.S. 413 (1923), is more vexed.
The Report recommends that the motion to dismiss based
on Younger abstention be denied because no state proceeding
is ongoing, as required by Middlesex County Ethics Committee
v. Garden State Bar Association, 457 U.S. 423 (1982).
sense this is true; the criminal case is over.
sense, however, the state case is continuing.
issuance of the Report and Recommendation, Defendant has
confirmed that the protective order currently continues in
effect, even after the resolution of the criminal
Equally importantly, the SJC has laid out a
clear path, within the state judicial procedures, to obtain
a review of that order.
Indeed, the SJC has, in effect,
invited Plaintiff to obtain review of Defendant’s protective
order by moving to terminate or amend it in state court and,
if necessary, appeal an adverse ruling to the SJC itself.
Zenon v. Commonwealth, 473 Mass. at 1024.
As Judge Michael Boudin observed in Maymo-Melendez v.
Alvarez-Ramirez, 364 F.3d 27, 32 (1st Cir. 2004): “Although
Younger is ordinarily described as applying where the state
case or proceeding is ‘ongoing,’ a moment’s reflection
suggests that this cannot be the whole story.”
court process, he noted, must be viewed as a “continuum from
start to finish.”
Id. at 35.
Given this, there “cannot at
any point on the continuum be an automatic right to detour
into federal court because [a plaintiff is] unhappy with an
Maymo-Melendez involved an
administrative procedure; its logic must apply with, if
anything, greater force where a state’s judicial process is
at the center of the controversy.
Similarly, in Rio Grande Community Health Center, Inc.
V. Rullan, 397 F.3d 56 (1st Cir. 2005), Judge Sandra Lynch
recognized that Younger abstention “has been seen as
appropriate in civil cases . . . in those situations
uniquely in furtherance of the fundamental workings of a
state’s judicial system.”
Id. at 69 (citing Middlesex
County, 457 U.S. at 432-33 (involving a challenge to a postjudgment appeal bond) and Juidice v. Vail, 430 U.S. 327,
335-36 (1977) (involving enforcement of civil contempt
The question of the ongoing propriety of a
state court protective order appears to fall under this
“fundamental workings” rubric.
While the landscape is not
perfectly clear, the most plausible construction of the law,
in light of these authorities, is that, where a state court
protective order is ongoing and where the state’s highest
court has identified a path to obtain review of that order,
considerations of comity recognized in Younger require this
court to abstain from stepping in.
The Rooker-Feldman doctrine, which is closely related
to Younger, also appears to cast a shadow over Plaintiff’s
This doctrine bars “cases brought by state-court
losers complaining of injuries caused by state-court
judgments rendered before the [federal] district court
proceedings commenced and inviting [federal] district court
review and rejection of those judgments.”
Exxon Mobil Corp.
v. Saudi Basic Indus. Corp., 544 U.S. 280, 283 (2005).
Here it could be argued that a final judgment regarding
the propriety of the protective order has been rendered by
the SJC in Abinel Zenon v. Commonwealth, 473 Mass. 1023
Unhappy with this outcome, Plaintiff is now
attempting to use this federal court as a kind of appellate
arena to obtain reversal of the SJC’s ruling.
collides with the ban articulated by the Rooker-Feldman
The analysis here is, admittedly, untidy.
derives, however, from the ambiguous procedural posture of
On the one hand, the state court case may be
viewed as “ongoing” -- in the sense that the protective
order remains in place, and the SJC has expressed a
willingness to review it -- in which case resort to this
federal court is barred by Younger and its progeny.
other hand, the state court case may be viewed as over, in
which case the Rooker-Feldman doctrine deprives this court
of jurisdiction to entertain what is, in effect, an appeal
of the SJC’s ruling.
Either way, the court lacks the power to act.
litigant cannot hoist himself over these deeply anchored
doctrinal hurdles just by re-labeling his case as an attempt
to assert a federal constitutional right.
The issue, in
both the state court and in this court, is the same: is the
protective order proper?
Fortunately, the hazy doctrinal
environment does not leave Plaintiff without a remedy.
well-lit path leads back to the state district court, with
an appeal of an adverse decision available to the SJC.
Even if these doctrinal hurdles were not insuperable -and they are -- Defendant’s fifth argument would be fatal to
As a judicial officer rendering a
classically adjudicatory decision, Defendant is immune from
This argument, as noted above, was not offered in the
opposition to the motion to dismiss before Judge Robertson,
with the result that she never had a chance to address it.
This is ordinarily prohibited, for obvious reasons.
case is referred to a Magistrate Judge, a litigant is not
permitted to hold arguments back and save them for a
subsequent objection to a disappointing recommendation.
This tactic would frustrate the entire purpose of the
Here, though, the situation is a bit unusual.
Defendant addressed her motion to dismiss to the original
complaint, which had no count explicitly pursuant to 42
U.S.C. § 1983.
The Report and Recommendation focused on a
different pleading, the amended complaint, which did contain
such a count.
This change, Defendant contends, alerted her
for the first time to the possibility of a judicial immunity
This riposte is not strong, since the presence of
claims under the First and Fourteenth Amendments in the
original complaint should have brought the issue of judicial
immunity to the surface.
Nevertheless the argument has some
More importantly, considerations of comity make this
As will be seen, the argument for
judicial immunity here is powerful.
To ignore the argument,
especially when it bears on the relationship between the
state and federal judiciary, simply because it was not
raised in proper time, would be an inappropriate elevation
of procedure over substance.
Immunity from suit protects a judicial officer who is
engaged in “paradigmatic judicial acts involved in resolving
disputes between parties who have invoked the jurisdiction
of a court.”
Forrester v. White, 484 U.S. 219, 227 (1988);
see also Antoine v. Byers & Anderson, Inc., 508 U.S. 429,
435-36 (1993) (“[T]he ‘touchstone’ for [applying judicial
immunity] has been ‘performance of the function of resolving
disputes between parties, or of authoritatively adjudicating
private rights.’” (internal citation omitted)).
The Supreme Court has established a two-prong test to
determine whether an act is “judicial” for purposes of
First, the court must consider
whether the function is “normally performed by a judge.”
Stump v. Sparkman, 435 U.S. 349, 362 (1978).
functional approach examines the “nature” and “function” of
the act, not the act itself.
Mireles v. Waco, 502 U.S. 9,
13 (1991) (citation omitted).
Second, the court must assess
“whether [the parties] dealt with the judge in his or her
Stump, 435 U.S. at 362.
In the First Circuit, to determine the propriety of a
claim for declaratory relief under § 1983 against judges
acting in their judicial capacity, the In re Justices test
In re Justices of the Supreme Court of Puerto
Rico, 695 F.2d 17, 21 (1st Cir. 1982).
The pivotal question
is whether judicial officers are acting as “neutral
adjudicators” or as “administrators, enforcers, or
Id. at 21.
When judges act purely as
adjudicators, they cannot be sued for their actions.
they act as administrators, enforcers, or advocates, they
may be proper parties to a § 1983 suit for declaratory
A judge is acting in an “administrative capacity” when,
for example, she disposes of administrative matters
unrelated to the courtroom, such as personnel disputes, see
Forrester, 484 U.S. at 229, or when she acts pursuant to
“requirements promulgated by judges themselves in the form
of court rules.”
In re Justices, 695 F.2d at 24.
Similarly, a judge may be a defendant when a litigant seeks
“writs of mandamus, prohibition, and the like” in an
“ongoing controversy over [a judge’s] disposition of an
Plaintiff’s argument that Defendant, in issuing the
protective order, was merely effectuating court-made rules
will not wash.
The issuance of a protective order is part
of the bread-and-butter adjudicatory function of a judicial
Indeed, as Defendant points out, in issuing the
order she was acting pursuant to Rule 14(a)(6) of the
Massachusetts Rules of Criminal Procedure, which regulates
(Dkt. No. 30 at 11.)
In disposing of a discovery motion, Judge Guzman was
performing a quintessentially “adjudicative” function
inextricably related to her role in resolving disputes
While her rulings may, of course, be
appealed through the state judicial machinery, she enjoys
immunity from suit in this court.
Rule 14(a)(6) of the Massachusetts Rules of Criminal
Procedure provides, in relevant part, “the judge may, for
cause shown, grant discovery to a defendant on the condition
that the material to be discovered be available only to
counsel or the defendant.”
This conclusion is supported by an abundance of caselaw.
See Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1133
(9th Cir. 2001), as amended on denial of reh’g (Oct. 11,
2001) (finding that a judge was entitled to absolute
immunity, where he denied a hearing-impaired litigant’s
motion for video-text display of the proceedings); Schottel
v. Young, 687 F.3d 370, 373 (8th Cir. 2012) (finding same,
covering “all acts normally performed by a judge”); Dore v.
Feeley, No. 12-10016-WGY, 2012 WL 194421, at *4 (D. Mass.
Jan. 13, 2012) (finding same, for state-court rulings
denying default judgments, denying reconsideration, denying
requests for recusal, and granting judgment); Ives v.
Agastoni, No. 15-30153-MAP, 2015 WL 9647559, at *3 (D. Mass.
Dec. 14, 2015), report and recommendation adopted, No. 1530153-MAP, 2016 WL 79881 (D. Mass. Jan. 5, 2016) (finding
same, for judge’s performance of “core judicial functions,
including adjudicating disputes, weighing evidence, making
factual findings, reaching legal conclusions, choosing
sanctions, expounding reasons for decisions, presiding over
courtroom sessions, accepting filings, and recording
rulings”); Abdullah v. Ladue, No. 10-40187-RGS, 2010 WL
3983069, at *1 (D. Mass. Sept. 28, 2010) (finding same, for
adjudicating a violation of probation and order for
incarceration); Merritt v. McKenney, No. 13-01391-JSW, 2013
WL 4552672, at *8 (N.D. Cal. Aug. 27, 2013) (finding same,
for “ruling on motions for continuances, requests relating
to discovery procedures, and other judicial proceedings”
that are “normal judicial functions”).
“The law has been settled for centuries that a judge
may not be attacked for exercising his judicial authority,
even if done improperly.”
1218 (4th Cir. 1971).
Mullins v. Oakley, 437 F.2d 1217,
Under this line of authority,
Defendant is clearly immune from suit in this court under 42
U.S.C. § 1983.
For the reasons set forth above, the court declines to
adopt the Report and Recommendation.
(Dkt. No. 29.)
Defendant’s motion to dismiss (Dkt. No. 15) is hereby
ALLOWED, without prejudice to Plaintiff’s seeking relief
from the protective order in state court.
enter judgment for Defendant.
The clerk will
This case may now be closed.
It is So Ordered.
/s/ Michael A. Ponsor
MICHAEL A. PONSOR
U.S. District Judge
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