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Porter v. Sanchez

United States District Court, M.D. Florida, Orlando Division

November 7, 2017

HOWARD PORTER, Plaintiff,
v.
NICOLE SANCHEZ, Defendant.

          ORDER

          ROY B. DALTON JR. UNITED STATES DISTRICT JUDGE.

         Every 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.

         I. Background

         On 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.[1] (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.)

         Concerned 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 Post”).)

         Thereafter, 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 (“Ordinance”). (Id. ¶ 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.)

         Against this backdrop, Mr. Porter initiated suit against twenty-one defendants, including four media outlets and their employees (collectively, “Media 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.)

         Reading 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”).[2] (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.

         II. Legal Standard

         Summary 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 Cir. 1991)).

         As to 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 ...


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