# Diaz

> District Court, D. Massachusetts · October 23, 2025

URL: https://www.frixlaw.com/law-library/cases/11177279

## Case

- **Full name:** John Diaz v. Steven Kenneway, et al.
- **Court:** District Court, D. Massachusetts
- **Decided:** October 23, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11177279

## How later opinions describe it (automated extraction)

- noting that “federal courts lack authority to bypass the mootness inquiry when the record reveals mootness may be an issue” (citation modified)
- noting that a plaintiff’s failure to identify such authority dooms their claims

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11177279. Public record. Not legal advice.