Porter v. The City of Port Orange et al

Filing 86

ORDER granting 82 Motion for summary judgment. Signed by Judge Roy B. Dalton, Jr. on 11/7/2017. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
HOWARD PORTER,
Plaintiff,
v.

Case No. 6:16-cv-1379-Orl-37DCI

NICOLE SANCHEZ,
Defendant.
_____________________________________
ORDER
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

See 34 U.S.C. § 20911 (defining a “sex offender” as “an individual who was
convicted of a sex offense”).
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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.

Although Mr. Porter also asserts a claim for defamation by implication, it is not
asserted against Ms. Sanchez. (See Doc. 1, ¶¶ 68–72.)
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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 that a genuine issue of material fact exists.” Porter v. Ray, 461 F.3d 1315, 1320
(11th Cir. 2006) (citing Fitzpatrick, 2 F.3d at 1115–17).
“A factual dispute is genuine ‘if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.’” Four Parcels, 941 F.2d at 1437 (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A court must view the evidence
and all reasonable inferences drawn from the evidence in the light most favorable to the
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nonmovant, Battle v. Bd. of Regents, 468 F.3d 755, 759 (11th Cir. 2006), such that “when
conflict arises between the facts evidenced by the parties, [the] court credit[s] the
nonmoving party’s version,” Evans v. Stephens, 407 F.3d 1272, 1278 (11th Cir. 2005).
However, “[the] court need not permit a case to go to a jury . . . when the inferences that
are drawn from the evidence, and upon which the nonmovant relies, are ‘implausible.’”
Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 743 (11th Cir. 1996).
III.

ANALYSIS

The gravamen of Mr. Porter’s claims is that Ms. Sanchez exposed him to hatred,
contempt, and ridicule in the community; and caused him severe emotional distress by
publishing the Reply Post, which falsely accused him of sexual acts he never committed
and improperly labeled him as a sexual predator, rather than a non-predatory sexual
offender. 3 (Doc. 1, ¶ 56, 60, 91–93.)
A.

Defamation Claim
“[T]here is no constitutional value in false statements of fact.” Gertz v. Robert Welch,

Inc., 418 U.S. 323, 340 (1974). To that end, a plaintiff may sue under a state’s defamation
law. Under Florida law, to prove a communication was defamatory a plaintiff must show:
(1) publication; (2) falsity; (3) that the defendant acted with actual malice, that is, with
knowledge or reckless disregard as to the falsity on a matter concerning a public official,
or at least negligently on a matter concerning a private person (“Fault Requirement”);

The Florida Sexual Predators Act defines a “sexual predator” as a repeat sexual
offender who uses physical violence or preys on children and presents an extreme threat
to the public safety. (Doc. 1, ¶ 30.)
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(4) actual damages; and (5) that the statement was defamatory. Jews for Jesus, Inc. v. Rapp,
997 So. 2d 1098, 1106 (Fla. 2008).
Ms. Sanchez attacks only two elements of the Defamation Claim. First, she argues
that Mr. Porter cannot show that the Reply Post was defamatory because it was pure
opinion (“Opinion Argument”). (Doc. 82, p. 4.) Second, Ms. Sanchez contends that
Mr. Porter cannot prove the Fault Requirement (“Fault Argument”). (Id.) Additionally,
Ms. Sanchez contends that she is entitled to summary judgment on her affirmative
defense that the Defamation Claim is barred by the applicable statute of limitations
period (“SOL Argument”). (Id. at 3.) The Court finds it unnecessary to address
Ms. Sanchez’s Opinion and SOL Arguments because she has prevailed on her Fault
Argument.
Florida defamation law requires a plaintiff to prove fault. See Rapp, 997 So. 2d
at 1106. The level of fault a plaintiff must prove turns on his status as a public figure or
private individual. See Silverster v. Am. Broadcasting Cos., Inc., 839 F.3d 1491, 1493
(11th Cir. 1988). Here, Ms. Sanchez assumes that Mr. Porter was a public figure. (Doc. 82,
p. 4.) Public officials and public figures cannot recover damages for defamatory
falsehoods absent a showing that the false statement was made with actual malice—that
is, with knowledge that it was false or with reckless disregard for its truth. New York Times
v. Sullivan, 376 U.S. 254, 279–80 (1964); Curtis Publ’g Co. v. Butts, 388 U.S. 130 (1967)
(extending New York Times protection to public figures). According to Ms. Sanchez,
Mr. Porter has failed to make the requisite showing of actual malice. (Doc. 82, p. 4.)

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But the actual malice standard does not extend to private individuals, and the fact
that the expression concerns a public issue, by itself, does not heighten a private
individual’s showing of fault. Gertz, 418 U.S. at 343. As such, a private figure must only
make a showing of negligence. Id. at 346–47; see also Straw v. Chase Revel, Inc., 813 F.2d
356, 360 (11th Cir. 1987); Rapp, 997 So. 2d at 1106. Here, even if the Reply Post arguably
implicates an issue of public concern, this, standing alone, does not require Mr. Porter to
show actual malice. See Gertz, 418 U.S. at 343. A “private individual is not automatically
transformed into a public figure just by becoming involved in or associated with a matter
that attracts public attention.” Wolston v. Readers Digest Ass’n, Inc., 443 U.S. 157, 167
(1979). Furthermore, an individual must have been a public figure prior to the particular
defamatory statement at issue in the litigation. See Silvester, 839 F.2d at 1496. In other
words, Ms. Sanchez cannot foist the status of public figure on Mr. Porter by ginning up
media coverage concerning the Reply Post. Hence Mr. Porter, as a private figure, only
had to show that Ms. Sanchez negligently published the Reply Post.
Notwithstanding this lesser burden, Mr. Porter has not introduced any affirmative
evidence that Ms. Sanchez published the Reply Post even negligently. Indeed, nothing in
the record indicates that Ms. Sanchez was even aware of the distinction between “sexual
predator” and “sexual offender” when she published the Reply Post. Absent a showing
of fault, Mr. Porter has failed to create a genuine issue of material fact that would preclude
summary judgment. A contrary conclusion would be at odds with Gertz, 418 U.S. at 353,
which prohibits the imposition of liability without fault. Hence the Motion is due to be
granted as to the Defamation Claim.
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B.

IIED Claim
Although Mr. Porter does not identify Ms. Sanchez in the IIED Claim, he does

allege that he suffered “abuse by the citizens of Port Orange . . . as shown on January 17,
2014,” including the [Reply Post]. (See Doc. 1, ¶ 76.) Liberally construing the Porter II
Complaint, Mr. Porter claims that Ms. Sanchez acted “intentionally [or] recklessly when
[she] implied that [he] was a greater threat to the community” and that the Reply Post
was outrageous because it was part of a campaign to oust Mr. Porter from the community,
causing him severe emotional distress. 4 (See id. ¶¶ 91–93.) Ms. Sanchez argues that the
IIED Claim is simply an improper repetition of the Defamation Claim. (See Doc. 82, p. 4.)
The Court agrees.
Florida courts have held that the outrageous conduct supporting a claim for IIED
must be separate from, or independent of, the alleged defamation. See, e.g., Boyles v.
Mid-Fla. Television Corp., 431 So. 2d 627, 636 (Fla. 5th DCA 1983). With respect to
Ms. Sanchez, the “outrageous conduct” Mr. Porter complains of is the alleged defamatory
Reply Post. (Doc. 1, ¶¶ 91–92.) But Mr. Porter “cannot transform a defamation claim into
a claim for [IIED] simply by characterizing the alleged defamatory statement as
outrageous.” Fridovich v. Fridovich, 598 So. 2d 65, 70 (1992). As such, the Motion is due to
be granted as to the IIED Claim.

The remainder of the IIED Claim addresses former defendants and other
statements not relevant for purposes of this summary judgment Order. (See Doc. 1, ¶¶ 77–
90.)
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IV.

CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:
1.

Defendant Nicole Sanchez’s Motion for Summary Judgment and
Memorandum of Law in Support (Doc. 82) is GRANTED.

2.

The Clerk is DIRECTED to enter judgment in favor of Defendant Nicole
Sanchez and against Plaintiff Howard Porter on Counts I and III of the
Complaint (Doc. 1, ¶¶ 47–63, 73–95.)

3.

The Clerk is also DIRECTED to terminate all pending deadlines and to
close this file.

DONE AND ORDERED in Chambers in Orlando, Florida, on November 7, 2017.

Copies to:
Counsel of Record
Pro se party

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