United States District Court, M.D. Florida, Orlando Division
DALTON JR. UNITED STATES DISTRICT JUDGE.
word has consequences. For Defendant Nicole Sanchez
(“Ms. Sanchez”) the consequences
of her words in an allegedly defamatory Facebook post place
her at the center of this action-the second brought by
pro se Plaintiff Howard Porter (“Mr.
Porter”). (Doc. 1; see also Porter v. City
of Port Orange, Case No. 6:15-cv-1715-Orl-37DCI
(“Porter I”).) Ms.
Sanchez now moves for summary judgment on the claims asserted
against her, arguing that she is entitled to judgment as a
matter of law. (Doc. 82
(“Motion”).) Without a timely
response from Mr. Porter, the unopposed Motion is now ripe.
For the following reasons, the Court finds that the Motion is
due to be granted.
October 16, 2003, Mr. Porter was convicted of three counts of
transporting and shipping child pornography and seven counts
of possession of child pornography. See United States v.
Porter, Case No. 1:03-cr-129-RJD-CLP-1 (E.D.N.Y. Jan. 3,
2003), Doc. 133 (“Porter Criminal
Case”). This conviction required Mr.
Porter to register as a sex offender in each jurisdiction
where he resided under the Sex Offender Registration and
Notification Act. (See Porter Criminal Case, Doc.
246.) Following his release, Mr. Porter moved to Port Orange,
Florida to live with his uncle and father
(“Residence”), and, as required,
he registered as a sex offender in the State of Florida on
January 7, 2014. (Doc. 1 ¶ 17.) The Residence faced
Sugar Mill Elementary School
(“School”). (See Id.
¶¶ 18, 20.)
about the proximity of Mr. Porter's Residence to the
School, a Port Orange parent took to Facebook on January 17,
2014, to express concern that the city lacked an ordinance
restricting sex offenders, like Mr. Porter, from living near
schools and urged parents to attend the next City Council
meeting to pass such an ordinance. (Id. ¶ 20.)
Over the course of the next three days, a spate of responses
poured in (id. ¶¶ 21- 22), including one
from Ms. Sanchez stating:
[Mr. Porter] gave up some rights when he decided he wanted to
do sexual acts on a 4 year old!! And thank God this was a set
up and he got busted. Who knows what the pictures of his own
son looked like or who he sold them [to]!!! I don't feel
this man should have the right to sit in his living room all
day and gaze out his window at all these children. And
possibly take pictures [without] anyone knowing!!! . . .
Convicted sexual predators should not be allowed to be so
close to a school with all these innocent children!! Please
come to the meeting and let's change some ordinances!
(Id. ¶ 21 (“Reply
the city passed an emergency ordinance prohibiting registered
sex offenders from living less than 2, 500 feet from schools,
parks, playgrounds, and child-care facilities
¶ 27.) A rash of news outlets covered the
community's efforts to pass the Ordinance, and due to the
incessant media coverage and repeated threats from neighbors,
Mr. Porter eventually moved away. (See Id.
¶¶ 28, 32- 39.)
this backdrop, Mr. Porter initiated suit against twenty-one
defendants, including four media outlets and their employees
Defendants”), and numerous Port Orange
residents (collectively, “Resident
Defendants”). (See Porter I, Doc. 1.)
On June 13, 2016, Mr. Porter simultaneously filed two third
amended complaints-one against the Media Defendants
(Porter I, Doc. 23) and the other against the
Resident Defendants, including Ms. Sanchez (Porter
I, Doc. 24). On August 1, 2016, the Court severed the
third amended complaint against the Resident Defendants and
created the instant case (“Porter
II”), in which Ms. Sanchez remains as the
only defendant. (See Porter I, Doc. 27; see
also Doc. 1.)
the Porter II Complaint liberally, Mr. Porter
asserts two claims against Ms. Sanchez: (1) defamation
(“Defamation Claim”); and (2)
intentional infliction of emotional distress
(“IIED Claim”). (Doc. 1,
¶¶ 47-63, 73-95).) Mr. Porter seeks both
compensatory and punitive damages. (Id. ¶¶
62-63, 94-95.) Despite the Court's prodding (see
Doc. 83), Mr. Porter did not respond to the Motion, and it is
now ripe for the Court's consideration.
judgment is appropriate only “if the movant shows that
there is no genuine dispute as to any material fact and that
[she] is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). As to issues for which the movant would
bear the burden of proof at trial, she must affirmatively
show the absence of a genuine issue of material fact and
support her motion with credible evidence demonstrating that
no reasonable jury could find for the nonmoving party on all
of the essential elements of her case. Fitzpatrick v.
City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993)
(citing United States v. Four Parcels of Real Prop. in
Green & Tuscaloosa Ctys., 941 F.2d 1428, 1438 (11th
issues for which the nonmovant would bear the burden of proof
at trial, the movant has two options: (1) she may simply
point out an absence of evidence to support the nonmoving
party's case; or (2) she may provide “affirmative
evidence demonstrating that the nonmoving party will be
unable to prove [his] case at trial.” Four
Parcels, 941 F.2d at 1438 (citing Celotex
Corp., 477 U.S. at 325). “The burden then shifts
to the nonmoving party, who must go beyond the pleadings and
present affirmative evidence to show ...