Diaz

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

_______________________________________

)

JOHN DIAZ, )

)

Plaintiff, )

) Civil Action No.

v. ) 20-12159-FDS

)

STEVEN KENNEWAY, et al., )

)

Defendants. )

_______________________________________)

MEMORANDUM AND ORDER ON PARTIES’

CROSS-MOTIONS FOR SUMMARY JUDGMENT

SAYLOR, J.

This is an action by a state prisoner alleging a violation of his constitutional rights.

Plaintiff John Diaz contends that he was punished for exercising his First Amendment right not

to speak when he refused to answer questions from prison guards about an incident that occurred

on his cell block. Defendants contend that the First Amendment does not protect such conduct,

and that, in any case, plaintiff was disciplined for refusing a direct order to enter the room where

interviews were taking place, not for refusing to speak with investigators. Plaintiff seeks both

monetary and injunctive relief against several defendants.

Both plaintiff and defendants have moved for summary judgment. For the reasons that

follow, plaintiff’s motion for summary judgment will be denied, and defendants’ motion for

summary judgment will be granted.

I. Background

A. Factual Background

The following facts are undisputed unless otherwise noted.

John Diaz is currently an inmate at MCI-Norfolk. (Defs.’ Stat. Material Facts (“DSMF”)

¶ 1, Dkt. No. 108). At all times relevant to this case, he was incarcerated at Souza-Baranowski

Correctional Center (“SBCC”). (Id.).

Stephen Kenneway was the Superintendent of SBCC from February 2019 through May

2020. (Id. ¶ 5).

Thomas Tocci is the Institutional Grievance Coordinator at SBCC. (Id. ¶ 9).

Matthew McGurn was an Inner Perimeter Security (“IPS”) officer at SBCC. (Id. ¶ 19).1

Larry Amblo served as a Disciplinary Officer at SBCC. (Id. ¶ 11). A Disciplinary

Officer “oversees disciplinary processing functions at the institutional level” by reviewing prison

disciplinary reports after they are filed by a reporting officer. (Id. ¶ 13).

Jordi Troncoso also served as a Disciplinary Officer at SBCC. (Id. ¶ 12).

Jonathan Toloczko served as a Hearing Officer at SBCC. (Id. ¶ 15). A Hearing Officer

presides at prison disciplinary hearings. (Id. ¶ 16).

Joseph Prato served as Mailroom Supervisor at SBCC from December 2018 to August

2022. (Id. ¶ 7).2

On August 13, 2019, IPS officers were in plaintiff’s unit conducting interviews

concerning an altercation that had occurred the preceding night. (Id. ¶ 40). The interviews were

conducted in a room called the Correctional Program Officer, or CPO, office. (Id.). At around

2:00 that afternoon, the door to plaintiff’s cell was opened. (Pl.’s Aff. Undisputed Facts (“Pl.’s

Aff.”) 2, Dkt. No. 105). The parties’ accounts diverge at that point.

1 Neither party has presented evidence as to whether McGurn still works as an IPS officer at SBCC.

2 In the complaint, this defendant’s last name is spelled “Prado,” but defendants indicate that it properly

spelled “Prato.” (DSMF ¶ 7). The clerk is directed to update the docket accordingly.

Plaintiff states that he was called to the unit officer’s desk, where he was told, simply,

“The IPS want to speak to you.” (Pl.’s Aff. 2). Defendants state that plaintiff was told when his

cell was opened to report to the CPO office to speak with staff. (DSMF ¶ 40). According to

defendants, instead of going to the CPO office, plaintiff went to the unit officer’s desk, where he

told the unit officer that he was “all set.” (Id.). Defendants state that plaintiff was then given a

“direct order” to report to the CPO office, which he refused. (Id.). Plaintiff does not dispute that

he never entered the CPO office on August 13, 2019, although he does state that “nobody ever

gave [him] a direct order.” (Pl’s. Aff. 2).

McGurn authored a disciplinary report against plaintiff detailing the facts of the incident.

(DSMF ¶ 41). A hearing on the report was held on April 17, 2020. (Id. ¶ 43). At the hearing,

plaintiff testified that he understood the First Amendment to protect him from having to enter the

CPO office where interviews were being conducted. (Id. ¶ 45; Ex. J at 6, Dkt. No. 108-10).

Following the hearing, plaintiff was found guilty of “refusing a direct order by any staff

member” and was given three days of room restriction as punishment. (Id. ¶ 46-47; Ex. J at 1).

He appealed the guilty finding to the prison superintendent, arguing that the conduct for which

he was disciplined was protected by the First Amendment. (Id. ¶ 48; Ex. J at 3). The

superintendent denied the appeal, finding that plaintiff “[was] not found guilty of not speaking[,]

but guilty of not entering the room after a direct order was given.” (Id. ¶ 49; Ex. J at 4).

B. Procedural Background

Plaintiff, proceeding pro se, filed a complaint on December 2, 2020 in forma pauperis.

The complaint asserted claims for damages and equitable relief based on violations of state law

(Counts 1 and 2), the First Amendment (Count 3), and the Fourteenth Amendment (Count 4).

After screening the complaint pursuant to 28 U.S.C. § 1915(e)(2), the Court dismissed the claims

against defendants Carol Mici, Thomas Turco, Dena Gray, and Bethany Hisman. (Dkt. No. 6).

The remaining defendants were served with the complaint on March 22, 2021.

After lengthy periods of inactivity and delay, on February 5, 2025, the Court held a status

conference at which plaintiff moved to dismiss all claims except for Count 3, the First

Amendment claim. (Dkt. No. 99). The Court granted that motion. (Id.).

Plaintiff and defendants have now cross-moved for summary judgment on the one

remaining claim. (Dkt. Nos. 104, 106).

II. Standard of Review

The role of summary judgment is “to pierce the pleadings and to assess the proof in order

to see whether there is a genuine need for trial.” Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822

(1st Cir. 1991) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)). Summary

judgment shall be granted when “there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine issue is

“one that must be decided at trial because the evidence, viewed in the light most flattering to the

nonmovant, would permit a rational factfinder to resolve the issue in favor of either party.”

Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990) (citation omitted). In

evaluating a summary judgment motion, the court indulges all reasonable inferences in favor of

the nonmoving party. See O’Connor v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993). When “a

properly supported motion for summary judgment is made, the adverse party must set forth

specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 250 (1986) (quotations omitted). The nonmoving party may not simply “rest upon

mere allegation or denials of his pleading,” but instead must “present affirmative evidence.” Id.

at 256-57.

“Generally, in deciding cross-motions for summary judgment, each party’s motion must

be examined on its own merits, and in each case all reasonable inferences must be drawn against

the party whose motion is under consideration. . . . But where, as here, the motion and cross-

motion seek a determination of the same issues, the Court may consider them together.” ExteNet

Sys., Inc. v. Village of Pelham, 377 F. Supp. 3d 217, 223 (S.D.N.Y. 2019) (internal citations and

quotation marks omitted); see also Pacamor Bearings, Inc. v. Minebea Co., Ltd., 918 F. Supp.

491, 496 (D.N.H. 1996) (“Because the issues raised in the motion and cross-motion are identical,

the court will discuss and resolve [them] in unison.”).

III. Analysis

A. Defendants Kenneway, Tocci, Amblo, Troncoso, Toloczko, and Prato

Plaintiff’s motion for summary judgment only addresses the actions of defendant

McGurn, and (in his response to defendants’ motion for summary judgment) he concedes that

McGurn is the only defendant relevant to the remaining claim. (See Dkt. No. 104; Dkt. No. 109

at 3). Because there appears to be no dispute as to that issue, summary judgment will be granted

in favor of defendants Kenneway, Tocci, Amblo, Troncosco, Toloczko, and Prato.

B. Defendant McGurn

The sole remaining claim (Count 3) is a First Amendment retaliation claim against

McGurn seeking injunctive and monetary relief. The First Amendment guarantees not only

freedom from government censorship, but also freedom from official retaliation based on

protected speech. Hartman v. Moore, 547 U.S. 250, 256 (2006) (“[T]he law is settled that as a

general matter the First Amendment prohibits government officials from subjecting an individual

to retaliatory actions . . . for speaking out.”). “Official reprisal for protected speech ‘offends the

Constitution [because] it threatens to inhibit exercise of the protected right.’” Id. (quoting

Crawford-El v. Britton, 523 U.S. 574, 588 n.10 (1998)) (alteration in original). Even conduct

that “fall[s] short of a direct prohibition against the exercise of First Amendment rights” can be

actionable if it has a “deterrent, or ‘chilling,’ effect.” Board of Cnty. Comm’rs v. Umbehr, 518

U.S. 668, 674 (1996) (quoting Laird v. Tatum, 408 U.S. 1, 11 (1972)).

While many rights and freedoms are necessarily curtailed during incarceration, “a

prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime.”

Wolff v. McDonnell, 418 U.S. 539, 555 (1974). Thus, despite the general deference owed to the

managerial decisions of prison officials, “retaliation against a prisoner’s exercise of

constitutional rights is actionable.” Hannon v. Beard, 645 F.3d 45, 48 (1st Cir. 2011).

However, “to survive summary judgment on a retaliation claim, a prisoner must make out a

prima facie case by adducing facts sufficient to show [1] that he engaged in a protected activity,

[2] that the state took an adverse action against him, and [3] that there is a causal link between

the former and the latter.” Id. Furthermore, as to causation, a prisoner must show that “he would

not have suffered the adverse action ‘but for’ the prison officials’ retaliatory motive.” Hudson v.

MacEachern, 94 F. Supp. 3d 59, 68 (D. Mass. 2015) (quoting Schofield v. Clarke, 769 F. Supp.

2d 42, 47 (D. Mass. 2011)).

1. Injunctive Relief

The claim for injunctive relief against McGurn in his official capacity is moot.3 “The

doctrine of mootness enforces the mandate ‘that an actual controversy must be extant at all

stages of the review, not merely at the time the complaint is filed.’” American C.L. Union of

Mass. v. U.S. Conf. of Catholic Bishops, 705 F.3d 44, 52 (1st Cir. 2013) (quoting Mangual v.

3 Neither plaintiff nor defendants raised the issue of mootness as to the claim for injunctive relief in their

briefing. However, because the doctrine of mootness is based in Article III’s case-or-controversy requirement, it

goes to the issue of a court’s subject-matter jurisdiction, and the Court may—and, indeed, must—determine for itself

whether a claim is moot. See In re Ruiz, 83 F.4th 68, 73 (1st Cir. 2023) (noting that “federal courts lack authority to

bypass the mootness inquiry when the record reveals mootness may be an issue” (citation modified)).

Rotger-Sabat, 317 F.3d 45, 60 (1st Cir. 2003)). “Simply stated, a case is moot when the issues

presented are no longer ‘live’ or the parties lack a legally cognizable interest in the

outcome.” Id. (quoting D.H.L. Assocs., Inc. v. O’Gorman, 199 F.3d 50, 54 (1st Cir. 1999)). “A

party can have no legally cognizable interest in the outcome of a case if the court is not capable

of providing any relief which will redress the alleged injury.” Gulf of Maine Fisherman’s All. v.

Daley, 292 F.3d 84, 88 (1st Cir. 2002).

In the context of challenges to prison policies, the First Circuit has held:

Once an inmate is removed from the environment in which he is subjected to the

challenged policy or practice, absent a claim for damages, he no longer has a

legally cognizable interest in a judicial decision on the merits of his claim. Any

declaratory or injunctive relief ordered in the inmate’s favor in such situations

would have no practical impact on the inmate’s rights and would not redress in

any way the injury he originally asserted.

Ford v. Bender, 768 F.3d 15, 29 (1st Cir. 2014) (quoting Incumaa v. Ozmint, 507 F.3d 281, 287

(4th Cir. 2007)); see also Snell v. Neville, 998 F.3d 474, 485 (1st Cir. 2021) (“An inmate

generally loses the right to challenge prison conditions or policies at a particular facility when he

transfers or leaves that prison because his complaints would no longer have any substantial

impact on his life.”). The sole exception to that rule is if an inmate can show that the challenged

policies are “capable of repetition, yet evading review.” Ford, 768 F.3d at 30. “The exception

applies where: (1) the challenged action did not last long enough for the parties to litigate the

harm before it ended; and (2) there is a reasonable expectation that the complaining party will

endure the same allegedly harmful action at some point in the future.” Snell, 998 F.3d at 485.

In March 2024, plaintiff was transferred from SBCC to MCI-Shirley. (Dkt. No. 53 at 1).

He was then transferred to MCI-Norfolk in May 2024. (Dkt. No. 62). Neither party has

presented any evidence that he now works at MCI-Norfolk rather than SBCC. Therefore, an

injunction against him would not redress any prospective injury to plaintiff. Because any

injunction against McGurn “would no longer have any substantial impact on [plaintiff’s] life,”

the claim for injunctive relief is presumptively moot. See Snell, 998 F.3d at 485.

Furthermore, the claim does not appear to fall within the exception for claims that are

“capable of repetition yet evading review.” There is no evidence in the record suggesting that

plaintiff will or is likely to be transferred back to SBCC.4 And even if he were, nothing in the

record supports a “reasonable expectation” that he would once again be disciplined for refusing

to speak with prison investigators. The incident at issue occurred in August 2019, roughly four

and a half years before he was transferred from SBCC to MCI-Shirley. (DSMF ¶ 40). There is

no evidence that he was subject to further retaliation during that intervening period. Based on

that long interval without reoccurrence, there is no “reasonable expectation” that plaintiff would

face similar disciplinary action even if he were transferred back to SBCC at some point in the

future.

Accordingly, the claim for injunctive relief against defendant McGurn is moot, and

summary judgment in his favor as to that issue will be granted.

2. Monetary Relief

The claim for monetary relief against McGurn is not moot because it is based on alleged

past injuries to plaintiff rather than a prospective future injury. “It is settled law that a claim for

monetary relief, including restitution, may survive events that moot injunctive or declaratory

relief.” Town of Portsmouth v. Lewis, 813 F.3d 54, 60 (1st Cir. 2016). The claim for monetary

relief is nonetheless barred by qualified immunity.

4 According to plaintiff’s 2024 classification decision, provided to the Court earlier in this case, plaintiff is

now recommended for placement in a “Medium” security-level facility. (See Dkt. No. 55-7).

The doctrine of qualified immunity protects public employees “from liability for civil

damages insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982). Qualified immunity is determined according to a two-part test. See Pearson v.

Callahan, 555 U.S. 223, 232-33 (2009); Maldonado v. Fontanes, 568 F.3d 263, 268-69 (1st Cir.

2009). The relevant inquiries are (1) whether the facts alleged or shown by the plaintiff make

out a violation of a constitutional right, and (2) whether the right at issue was clearly established

at the time of the defendant’s alleged misconduct. Maldonado, 568 F.3d at 268-69.

The question is not whether some right has been clearly established at a highly abstract

level, but “whether, under the circumstances that confronted the official, ‘a reasonable official

would understand that what he is doing violated that right.’” Berthiaume v. Caron, 142 F.3d 12,

15 (1st Cir. 1998) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “An officer is

entitled to qualified immunity if an objectively reasonable officer could have concluded (even

mistakenly) that his or her conduct did not violate the plaintiffs’ rights.” Johnson v. City of

Biddeford, 92 F.4th 367, 375 (1st Cir. 2024) (citation modified). The qualified-immunity

doctrine “leaves ‘ample room for mistaken judgments.’” Berthiaume, 142 F.3d at 15 (quoting

Malley v. Briggs, 475 U.S. 335, 343 (1986)).

To show that an official’s conduct violated a clearly established right, the plaintiff bears

the burden “to identify controlling authority or a consensus of persuasive authority sufficient to

put the officers on notice that their conduct violated the law.” Estate of Rahim v. Doe, 51 F.4th

402, 412 (1st Cir. 2022); see also Rivera-Corraliza v. Morales, 794 F.3d 208, 214-15 (1st Cir.

2015) (noting that a plaintiff’s failure to identify such authority dooms their claims). While a

prior case need not be identical to clearly establish a right, “[p]recedent involving similar facts

can help move a case beyond the otherwise ‘hazy border between [improper] and acceptable

[conduct]’ and thereby provide an officer notice that a specific [act] is unlawful.” Kisela v.

Hughes, 584 U.S. 100, 105 (2018) (quoting Mullenix v. Luna, 577 U.S. 7, 18 (2015)). Qualified

immunity is an affirmative defense, and the burden is on defendants to show they are entitled to

its protection. DiMarco-Zappa v. Cabanillas, 238 F.3d 25, 35 (1st Cir. 2001).

To prove his retaliation claim, plaintiff must first show that he was engaged in an activity

protected by the First Amendment. See Hannon, 645 F.3d at 48. Whether his conduct was

constitutionally protected turns out to be something of a difficult question. The First

Amendment’s Free Speech Clause protects “both the right to speak freely and the right to refrain

from speaking at all.” Janus v. American Fed’n of State, Cnty., & Mun. Emps., 138 S. Ct. 2448,

2463 (2018) (quoting Wooley v. Maynard, 430 U.S. 705, 714 (1977)); see also West Virginia

State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). At the same time, the realities of

prison administration mean that while “[p]rison walls do not form a barrier separating prison

inmates from the protections of the Constitution,” constitutional claims by prisoners are

reviewed with a greater degree of deference to the government than is afforded in other cases.

See Turner v. Safley, 482 U.S. 78, 84 (1987). There is also some factual dispute as to why

exactly plaintiff was subject to discipline: plaintiff contends that he was punished for not

speaking with the IPS officers, while defendants contend that he was disciplined for refusing a

direct order to enter the CPO office. (Compare Pl.’s Aff. at 2, with DSMF ¶ 40).

In any event, even viewing the facts in the light most favorable to the plaintiff, and

assuming that he was in fact disciplined for refusing to speak with the IPS officers, McGurn’s

actions are protected by qualified immunity. Again, McGurn is entitled to qualified immunity

unless plaintiff can “identify controlling authority or a consensus of persuasive authority

sufficient to put [McGurn] on notice that [his] conduct violated the law.” Estate of Rahim, 51

F.4th at 412. And the appropriate focus is on “precedents existing at the time of the incident,”

not as of the time of a court’s review. See McKenney v. Mangino, 873 F.3d 75, 83 (1st Cir.

2017).

In his briefing, plaintiff points to one case, Burns v. Martuscello, 890 F.3d 77 (2d Cir.

2018), that he contends is sufficient to have clearly established a prisoner’s First Amendment

right to refuse to respond to questioning. (See Dkt. No. 109 at 6). That argument, however, fails

for two reasons.

First, the facts of Burns are clearly distinguishable. In Burns, the plaintiff was

approached by prison guards who wanted him to provide them with information on an ongoing

basis. See Burns, 890 F.3d at 82. When he refused to do so, he was placed into restrictive

custody. See id. at 83. On those facts, the Second Circuit recognized that “the refusal . . . to

serve as a snitch on an ongoing basis [is] protected by the First Amendment.” Id. at 93. In this

case, by contrast, plaintiff refused to answer questions about a single past event during a

subsequent investigation. Indeed, the Burns court explicitly noted that it was leaving open the

question of whether such activity is subject to First Amendment protection. See id. (“We do not

address whether Burns had a First Amendment right to refuse to give truthful information about

a past event.” (citation modified)).

Although a case need not be “directly on point” to make the law on a certain question

clearly established, the relevant analogies must be drawn at “a high degree of specificity.”

District of Columbia v. Wesby, 583 U.S. 48, 63-64 (2018). Where the only relevant authority

cited by plaintiff explicitly declined to decide the relevant question of law, he cannot meet his

burden of showing that the answer to that question was clearly established.

Second, even if Burns were factually analogous, one out-of-circuit precedent is

insufficient to show that the law on the issue is clearly established. The First Circuit has

explicitly noted that a “single . . . out-of-circuit case . . . is insufficient as a matter of law” to

show that a principle is clearly established, because “it is neither controlling authority nor a

‘consensus’ of persuasive authority.” Estate of Rahim, 51 F.4th at 413. Burns itself noted that as

of May 2018, “neither the Supreme Court nor any other circuit court has yet to decide whether a

prisoner holds a right not to serve as an informant.” Burns, 890 F.3d at 94. Plaintiff cites to no

case decided between May 2018 and August 2019 that reached a similar holding.

Defendant McGurn is therefore entitled to qualified immunity as to the claim for money

damages, because it was not clearly established as of August 2019 that the First Amendment

protected a prisoner’s right not to provide information as part of an investigation concerning past

events. Summary judgment will therefore be granted in his favor as to that claim.

IV. Conclusion

For the foregoing reasons, defendants’ motion for summary judgment is GRANTED and

plaintiff’s motion for summary judgment is DENIED.

So Ordered.

/s/ F. Dennis Saylor IV

F. Dennis Saylor IV

Dated: October 23, 2025 United States District Judge