Zenon v. Guzman

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

)

ABINEL ZENON,

)

Plaintiff,

)

)

v.

)

)

C.A. No. 3:16-cv-30129-MAP

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ASSOCIATE JUSTICE

)

MARGARET GUZMAN, in her

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Official Capacity,

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Defendant.

)

MEMORANDUM AND ORDER RE: REPORT AND RECOMMENDATION REGARDING

DEFENDANT’S MOTION TO DISMISS

(Dkt. Nos. 15 and 29)

January 8, 2018

PONSOR, U.S.D.J.

I. INTRODUCTION

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

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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.

II. BACKGROUND

On April 11, 2013, Plaintiff was arraigned in the

Springfield District Court on two counts of assault and

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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

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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

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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.

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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 protective

order and, if such a motion is denied, appeal in

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the ordinary course from that ruling.

Id.

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. The procedural

history of the case is somewhat unusual. The original

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.) No

explicit reference was made in this complaint to 42 U.S.C. §

1983. Defendant’s motion to dismiss, filed on January 3,

2017, was directed at this original complaint. (Dkt. No.

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15.) The motion was argued before Judge Robertson on April

11, 2017. (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

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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.

III. DISCUSSION

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.” Bell Atl.

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

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jurisdiction over the complaint pursuant to the Rooker-

Feldman doctrine; and (4) that the complaint is barred by

collateral estoppel, or what is often termed “issue

preclusion.”

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.

No. 30.)

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.

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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). In a

sense this is true; the criminal case is over. In another

sense, however, the state case is continuing. Since the

issuance of the Report and Recommendation, Defendant has

confirmed that the protective order currently continues in

effect, even after the resolution of the criminal

proceeding. Equally importantly, the SJC has laid out a

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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.” The state

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

initial answer.” Id. 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

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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 post-

judgment appeal bond) and Juidice v. Vail, 430 U.S. 327,

335-36 (1977) (involving enforcement of civil contempt

proceedings)). 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

case. This doctrine bars “cases brought by state-court

losers complaining of injuries caused by state-court

judgments rendered before the [federal] district court

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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

(2016). 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. This effort

collides with the ban articulated by the Rooker-Feldman

doctrine.

The analysis here is, admittedly, untidy. This

derives, however, from the ambiguous procedural posture of

the case. 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. On the

other hand, the state court case may be viewed as over, in

which case the Rooker-Feldman doctrine deprives this court

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of jurisdiction to entertain what is, in effect, an appeal

of the SJC’s ruling.

Either way, the court lacks the power to act. A

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. A

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

Plaintiff’s claim. As a judicial officer rendering a

classically adjudicatory decision, Defendant is immune from

suit. 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. When a

case is referred to a Magistrate Judge, a litigant is not

permitted to hold arguments back and save them for a

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subsequent objection to a disappointing recommendation.

This tactic would frustrate the entire purpose of the

referral.

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

argument. 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

force.

More importantly, considerations of comity make this

situation exceptional. 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

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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

establishing immunity. First, the court must consider

whether the function is “normally performed by a judge.”

Stump v. Sparkman, 435 U.S. 349, 362 (1978). This

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

judicial capacity.” Stump, 435 U.S. at 362.

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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

applies. 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

advocates.” Id. at 21. When judges act purely as

adjudicators, they cannot be sued for their actions. When

they act as administrators, enforcers, or advocates, they

may be proper parties to a § 1983 suit for declaratory

relief. Id.

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

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“ongoing controversy over [a judge’s] disposition of an

existing suit.” Id.

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

officer. 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

pretrial discovery.1 (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

between parties. While her rulings may, of course, be

appealed through the state judicial machinery, she enjoys

immunity from suit in this court.

1 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.”

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This conclusion is supported by an abundance of case-

law. 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. 15-

30153-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

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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.” Mullins v. Oakley, 437 F.2d 1217,

1218 (4th Cir. 1971). Under this line of authority,

Defendant is clearly immune from suit in this court under 42

U.S.C. § 1983.

IV. CONCLUSION

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. The clerk will

enter judgment for Defendant. This case may now be closed.

It is So Ordered.

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/s/ Michael A. Ponsor

MICHAEL A. PONSOR

U.S. District Judge

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