"amy v. Anderson

• Decision Date: 08 June 2018
• Docket Number: CIVIL ACTION NO. 5:16-CV-212 (MTT)
• Parties: "AMY," et al., Plaintiffs, v. JOHN LEE ANDERSON, III, Defendant.
• Court: U.S. District Court — Middle District of Georgia

"AMY," et al., Plaintiffs, v. JOHN LEE ANDERSON, III, Defendant.

CIVIL ACTION NO. 5:16-CV-212 (MTT)

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION

June 8, 2018

ORDER

Defendant John Lee Anderson, III, has moved for summary judgment. Doc. 29. The motion is GRANTED.

I. FACTS¹

Plaintiffs "Amy," "Vicky," and "Alice" were repeatedly sexually abused when they were minors. Doc. 10 ¶¶ 19-37. Images of their abuse were distributed, and continue to be circulated, on the internet. Id. Vicky's images are found in the child pornography series by the same name. Id. ¶ 8. Images of Amy are found in what is known as the "Misty" child pornography series. Id. ¶ 6. Alice's images are known as the "Christina" series. Id. ¶ 10.

In April 2006, law enforcement agents found images depicting child sex abuse on Anderson's computer. Id. ¶ 39. On January 28, 2009, Anderson was charged with knowingly possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and pled guilty on the same day. Id. ¶¶ 47-48; United States v. Anderson, 5:09-cr-5, Doc. 4 (M.D. Ga.). Anderson was sentenced to 70 months in prison and 20 years supervised release. Doc. 10 ¶ 50; Anderson, 5:09-cr-5, Doc. 16. During Anderson's criminal proceeding, Amy, represented by one of the lawyers who now represents the plaintiffs, sought restitution but withdrew her request. Docs. 31-7 at 2; 31-10 at 3:4.²

The Plaintiffs allege that analysts from the National Center for Missing and Exploited Children's (NCMEC) Child Victim Identification Program (CVIP) identified images from the Christina, Vicky, and Misty series on the materials from Anderson's computer. Doc. 10 ¶¶ 41-46. Based on this alleged identification, the Plaintiffs received notices from the United States Department of Justice's Victim Notification System (VNS) informing them they were potential victims of Anderson's criminal conduct, and they received subsequent notices concerning Anderson. Docs. 31-1; 31-3; 31-5; 31-6.

On June 7, 2016, the Plaintiffs filed their complaint, asserting claims under 18 U.S.C. § 2255, 18 U.S.C. § 2252A, and the Georgia Racketeer Influenced and Corrupt Organizations Act (RICO), O.C.G.A. §§ 16-14-1, et seq. Doc. 1. The Plaintiffs filed an amended complaint on September 26, 2016. Doc. 10. On October 7, 2016, Anderson moved to dismiss the Plaintiffs' claims as barred by the applicable statute of limitations,which the Court granted in part and denied in part, dismissing Amy's and Vicky's Georgia RICO claims. Docs. 13; 17. Anderson now moves for summary judgment on the Plaintiffs' remaining claims. Doc. 29.

II. SUMMARY JUDGMENT STANDARD

A court must grant summary judgment "if the movant shows that 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 factual dispute is not genuine unless, based on the evidence presented, "'a reasonable jury could return a verdict for the nonmoving party.'" Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002) (quoting United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir. 1991)); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant may support its assertion that a fact is undisputed by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56(c)(1)(A). "When the nonmoving party has the burden of proof at trial, the moving party is not required to 'support its motion with affidavits or other similar material negating the opponent's claim[]' in order to discharge this 'initial responsibility.'" Four Parcels of Real Prop., 941 F.2d at 1437-38 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Rather, "the moving party simply may 'show[ ]—that is, point[ ] out to the district court—that there is an absence of evidence to support the nonmoving party's case.'" Id. (alterations in original) (quoting Celotex, 477 U.S. at 324). Alternatively, themovant may provide "affirmative evidence demonstrating that the nonmoving party will be unable to prove its case at trial." Id.

The burden then shifts to the non-moving party to designate specific facts showing a genuine issue for trial. Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1315 (11th Cir. 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). When the non-moving party holds the burden at trial as to a dispositive issue, to establish a genuine fact dispute as to that issue, Rule 56(e) requires them to go beyond the pleading and produce relevant and admissible evidence. Celotex Corp. Catrett, 477 U.S. at 323-324 (quoting Anderson, 477 U.S. at 249-50). To do so, the non-movant may rely on "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56(c). The non-moving party does not satisfy its burden "if the rebuttal evidence 'is merely colorable, or is not significantly probative' of a disputed fact." Id. (quoting Anderson, 477 U.S. at 249-50). Further, where a party fails to address another party's assertion of fact as required by Fed. R. Civ. P. 56(c), the Court may consider the fact undisputed for purposes of the motion. Fed. R. Civ. P. 56(e)(2). However, "credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . . The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255.

III. ANALYSIS

Plaintiffs Amy and Vicky both seek relief under 18 U.S.C. § 2255(a), which provides a civil remedy to "[a]ny person who, while a minor, was a victim of a violation of [§ 2252(a)]." Section 2252(a) addresses the production of and possession of images involving "minor[s] engaging in sexually explicit conduct." Plaintiff Alice seeks relief under 18 U.S.C. § 2252A(f), which provides a civil remedy for those "aggrieved by" certain conduct including, "knowingly possess[ing], or knowingly access[ing] with intent to view . . . child pornography [images]." Alice also seeks relief under the Georgia RICO act, which provides a civil remedy for plaintiffs "injured by reason of" racketeering activity, defined to include "any act which is indictable under . . . 18 U.S.C. § 2252."³ O.C.G.A. § 16-14-6.

The Plaintiffs base their claims on their allegations that Anderson possessed their images and not that he received or distributed child pornography. As stated,Anderson pled guilty to possession of child pornography in violation of 18 U.S.C. §2252(a)(4)(B), meaning he:

(B) knowingly possesse[d] . . . 1 or more books, magazines, periodicals, films, video tapes, or other matter which contain[ed] any visual depiction that [had] been mailed, or [had] been shipped or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported, by any means including by computer, if--

(i) the producing of such visual depiction involve[d] the use of a minor engaging in sexually explicit conduct; and

(ii) such visual depiction [was] of such conduct.

But Anderson was not charged with and did not plead guilty to possessing images of any particular victim. Doc. 29-3 at 2. Thus, Anderson's conviction does not establish that he possessed the Plaintiffs' pornographic images. Rather, the Plaintiffs must prove that they themselves were victimized by Anderson's conduct—that he possessed images of them that meet the relevant statutory definitions of "child pornography" and "sexually explicit conduct." See 18 U.S.C. § 2255(a) (requiring that plaintiffs be "victim[s] of a violation"); 18 U.S.C. § 2252A(f) (providing a remedy to those "aggrieved by" illegal conduct); O.C.G.A. § 16-14-6 (requiring that plaintiffs be "injured by reason of" racketeering activity).

For the reasons that follow, the Plaintiffs have failed to present sufficient evidence to allow a reasonable jury to find, by a preponderance of the evidence, that Anderson possessed images depicting the Plaintiffs that constitute child pornography.

A. Admissibility of the Plaintiffs' Evidence

Anderson objects to the admissibility of certain evidence used by the Plaintiffs. A district court should determine the admissibility of evidence to determine whether there is a genuine, material dispute of facts at the summary judgment stage and has broaddiscretion in doing so. Hetherington v. Wal-Mart, Inc., 511 F. App'x 909, 911 (11th Cir. 2013) (citing Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv., Inc., 556 F.3d 1232, 1243 (11th Cir. 2009)); Gauck v. Meleski, 346 F.2d 433, 436 (5th Cir. 1965) ("It is our conclusion that, according to Rule 56(e) as amended, the trial court can, and indeed should, assess the evidence presented upon the motion for summary judgment to determine its admissibility and to ascertain whether all the admissible evidence creates a genuine, material dispute of facts.").⁴

Here, Anderson contests the admissibility of (1) reports from NCMEC and CVIP; (2) notices to the Plaintiffs from the United States Department of Justice's Victim Notification Services (VNS); and (3) a letter from the United States' Attorney's Office to Plaintiff Amy's counsel.

1. CVIP Reports

In opposing Anderson's motion for summary judgment, the Plaintiffs rely on reports from the NCMEC's CVIP. Docs. 31 at 4-5; 31-9. According to the Plaintiffs, CVIP "assist[s] law enforcement in identifying victims of child pornography...