Porter v. Wu et al

United 	States 	District Court
District 	of Massachusetts
Eric 	J. 	Porter,
Plaintiff,
v.
Michelle Wu, 	et 	al.,
Defendant.
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Civil Action No.
25-10403-NMG
MEMORANDUM 	& ORDER
GORTON, 	J .
This 	case 	arises 	from 	efforts 	by 	the 	City 	of 	Boston 	to
limit 	the 	spread 	of 	the 	disease 	during 	the 	COVID- 19 	pandemic .
Plaintiff 	Eric 	Porter 	( "p laintiff " 	or 	" Porter " ) 	has 	brought
claims 	against 	Michelle 	Wu , 	pe rs onally 	and 	in 	her 	capacity 	as
Mayor 	of 	Boston , 	Dr . 	Bisola 	Ojikutu , 	personally 	and 	in 	he r
capacity 	as 	Director 	of 	the 	Boston 	Public 	Health 	Comm is sio n 	(the
" BPHC " ) 	and 	Kathleen 	Joyce , 	personally 	and 	in 	her 	capacity 	as
Commissioner 	of 	the 	Boston 	Licensing 	Board 	(the 	" BLB " )
(collectively , 	" defendants " ) 	related 	to 	their 	actions 	in
implementing 	Boston ' s 	COVID- 19 	ordinances . 	Before 	the 	Court 	are
defendants ' 	Motions 	to 	Dismiss 	(Docket 	Nos . 	14 	and 	17) 	for 	lack
of 	constitutional 	standing .
motions 	will 	be 	allowed .
For 	the 	following 	reasons , 	those
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I. 	Background
A. Facts
In 	December , 	2021 , 	defendant 	Ojikutu 	signed 	an 	order 	for
the 	BPHC 	(" the 	Order " ) 	requiring 	individ u als 	to 	show 	proof 	of
vaccination 	against 	COVID- 19 	in 	order 	to 	enter 	covered 	spaces
such 	as 	restaurants 	and 	indoor 	fitness 	centers . 	The 	Order ,
which 	took 	effect 	in 	January , 	2022 , 	required 	businesses 	to
ensure 	that 	customers 	were 	vaccinated 	before 	they 	were 	allowed
entry 	and 	imposed 	a 	$300 	fine 	upon 	a 	business 	for 	each
violation .
Eric 	Porter 	(" plaintiff " 	or 	" Porter " ) 	is 	a 	27 - year - old
resident 	of 	Boston , 	Massachusetts , 	who 	lives 	alone . 	After 	the
effective 	date 	or 	the 	Order , 	plaintiff 	asserts 	that 	he 	was
denied 	entry 	into 	several 	Boston 	restaurants 	in 	January , 	2022 ,
and 	was 	required 	to 	cancel 	his 	gym membership . 1 	Porter 	complains
that 	he 	was 	then 	subject 	to 	extreme 	isolation 	for 	34 	days ,
during 	which 	he 	suffered 	trauma 	akin 	to 	solitary 	confinement ,
emotional 	distress 	and 	injury 	to 	his 	physical 	and mental 	health .
Plaintiff ' s 	claims , 	which 	are 	numerous , 	are 	purportedly
brought 	on 	his 	own 	behalf 	and 	on 	behalf 	of 	a 	proposed 	class 	of
residents 	of 	Boston 	who 	were 	denied 	access 	to 	public
accommodations 	or 	who 	were 	coerced 	into 	having 	to 	be 	vaccinated
1 The Amended Complaint d oe s 	not c l ai m th a t 	pl a i n t i ff i s 	unva cc i na te d o r 	was
una b le to p rovi d e pr o of o f 	vacci nation a t 	a ny e stabl i shm e nt .
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because 	of 	Boston ' s 	COVID- 19 	vaccine 	mandate . 	Porter 	alleges
violations 	of 	his 	rights 	under 	the 	First , 	Fourth , 	Fift h 	and
Fourteenth 	Amendments 	to 	the 	United 	States 	Constitution , 	as 	well
as 	numerous 	state 	and 	federa l 	statutes . 	He 	further 	alleges 	that
the 	Order 	is 	based 	upon 	false 	information 	regarding 	the 	efficacy
of 	the 	COVID - 19 	vaccines 	and 	seeks 	monetary 	damages , 	declaratory
judgment 	and 	injunctive 	relief .
Defendants 	have 	f iled motions 	to 	dismiss 	the 	complaint
(Docket 	Nos . 	14 	and 	17) 	under 	Fed . R . Civ . P . 	12(b) (1) 	and
12(b) (6) , 	and 	plaintiff 	his 	filed 	his 	opposition 	to 	both
motions , 	albeit 	one 	day 	late .
II . 	Motions 	to 	Dismiss
A . Legal 	Standard
De fendants 	move 	to 	dismiss 	the 	complaint 	for 	lack 	of
consti t utional 	standing 	pursuant 	to 	Rule 	12(b) (1) . 	Under
Article 	III 	of 	the 	United 	States 	Constitution , 	a 	plaintiff 	who
seeks 	to 	bring 	a 	claim 	in 	federal 	court 	must 	establish 	that 	1)
he 	has 	suffer e d 	an 	injury 	in 	fact 	that 	is 	2) 	fairly 	traceable 	to
the 	defendants ' 	action 	and 	is 	3) 	redressab l e 	by 	a 	favorable
dec i sion . 	Lujan 	v . 	Def . 	of 	Wildlife , 	504 	U. S . 	555 , 	560-61
( 199 2 ) .
B. Application
Defendants 	aver 	that 	plaintiff 	cannot 	meet 	any 	of 	the 	three
requirements 	f or 	standing . 	They 	argue 	that 	Porter ' s 	grievances
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with 	the 	Order 	are 	not 	particularized 	to 	himself 	and 	instead
restate 	concerns 	that 	affected 	the 	public 	at 	large . 	Defendants
further 	assert 	that , 	even 	if 	plaintiff 	has 	suffered 	an 	injury 	in
fact , 	his 	injuries 	are 	not 	fairly 	traceable 	to 	defendants '
actions . 	Finally , 	defendants 	respond 	that 	the 	requested 	relief
cannot 	redress 	plaintiff ' s 	nonexistent 	injuries .
i. 	Injury 	in 	Fact
To 	establish 	injury 	in 	fact , 	plaintiff 	must 	show 	the
invasion 	of 	a 	legally 	protected 	interest 	that 	is 	concrete 	and
partialized 	to 	him. 	Spokeo , 	Inc . 	v . 	Robins , 	578 	U. S . 	330 , 	339
(2016). 	A generalized 	grievance 	that 	affects 	a 	large 	number 	of
people 	is 	insufficient 	to 	show 	a 	particularized 	injury .
Hollingsworth 	v . 	Perry , 	570 	U. S . 	693 , 	706 	(2013)
Here , 	plaintiff 	has 	pled 	an 	injury 	in 	fact . 	He 	alleges
that 	he 	was 	denied 	entry 	to 	the 	White 	Horse 	Tavern 	and 	Model
Cafe 	on 	January 	15 	and 	16 , 	2022 	and 	that 	he 	was 	forced 	to 	self-
isolate 	and 	cancel 	his 	gym membership . 	Plaintiff 	has 	a 	legal
interest 	in 	accessing 	public 	accommodations 	and 	he 	has 	alleged
facts 	that , 	if 	true , 	would 	establish 	a 	violation 	of 	such
interest . 	See 	Kaiser 	v . 	Kirchick , 	662 	F . 	Supp . 	3d 	76 , 	96 	(D .
Mass . 	2 0 2 3) . 	Plaintiff 	has 	therefore 	alleged 	injuries
sufficiently 	concrete 	and 	particularized 	to 	satisfy Article 	III
standing .
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ii. 	Traceability
To 	establish 	traceability , 	plaintiff 	must 	allege 	a
sufficiently 	direct 	causal 	connection 	between 	the 	challenged
action 	and 	his 	injury , 	R&D 	Master 	Enter ., 	Inc . 	v . 	Fin . 	Oversight
& Mgmt . 	Bd . 	for 	Puerto 	Rico , 	75 	F . 4th 	41 , 	4 7 	(1st 	Cir . 	2023) ,
but 	an 	injury 	that 	relies 	on 	the 	actions 	of 	a 	third 	party 	is
less 	likely 	to 	be 	traceable 	to 	defenda n ts ' 	actions , 	Delaney 	v .
Baker, 	511 	F . 	Supp . 	3d 	55 , 	68 	(D . 	Mass . 	2021) . 	In 	the 	context
o f 	a 	COVID - 19 	regu1~tion 	of 	p u blic 	establishments , 	courts 	have
found 	that 	injuries 	are 	traceable 	to 	government 	action 	only 	when
an 	establishment ' s 	restriction 	would 	not 	have 	been 	imposed
absen t 	the 	challe nged 	order . . See , 	~ 	. 	id . 	at 	70 ; 	Cottone 	v .
City 	of 	Bos ., 	No . 	1 : 22 - CV - 10285 - AK , 	2 023 	WL 	168728 , 	at 	*5 	n . 1
(D . 	Mass . 	Jan . 	11 , 	2023) . 	Moreover , 	plaintiff 	cannot
manufacture 	standing 	by merely 	inflicting 	harm 	upon 	himself .
Clapper 	v . 	Amnesty 	I n t ' l 	USA , 	568 	U. S . 	398 , 	418 	(2013) .
H~re , 	the 	Court 	concludes 	that 	Porter 	has 	failed 	to 	al l ege
injuries 	that 	can 	be 	fairly 	traced 	to 	the 	actions 	of 	Boston
officials . 	First , 	he 	does 	not 	allege 	why 	he 	was 	denied 	entry 	to
the 	establishments . 	Nor 	does 	he 	claim 	t6 	have 	ever 	been 	asked
for 	hi s 	v~ccination 	records 	by 	any 	establishment , 	let 	alone
d enied 	entry 	for 	his 	lack 	t hereof . 	He 	does 	not 	even 	claim 	to
have 	been 	un vac cinated 	at 	the 	time 	of 	his 	denials . 	Even 	if 	the
Court 	were 	to 	draw 	these 	inferences 	in 	his 	favor , 	however ,
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plaintiff 	has 	not 	alleged 	that 	White 	Horse 	Tavern 	or 	Model 	Caf~
would 	not 	have 	excluded 	him 	absent 	the 	city 	ordinance.
Plaintiff 	has 	therefore 	failed 	to 	demonstra t e 	that 	any 	alleged
injuries 	he 	suffered 	are 	traceable 	to 	defendants ' 	conduct .
Finally , 	p l ainti ff 	has 	also 	failed 	to 	show 	t hat 	his 	social
isolation 	is 	traceable 	to 	government 	action . 	He 	has 	not 	alleged
that 	any 	government 	order 	fo rced 	him 	to 	stay 	indoors 	or 	cancel
his 	gym membership . 	Because 	such 	alleged 	injuries 	are 	entirely
s e lf - inflicted , 	he 	has 	failed 	t o 	sh ow 	how 	they 	could 	be
traceable 	to 	defendants ' 	cond uc t .
iii . 	Redressability
Because 	plaintiff 	has 	failed 	to 	demonstrate 	that 	his
injurie s 	are 	sufficiently 	tr aceable 	to 	defendants ' 	actions , 	the
Court 	declines 	to 	address 	the 	r edressability 	of 	his 	claims .
ORDER
Fo r 	the 	fo rgoing 	reasons , 	defendants ' 	Motions 	to 	Dismiss
(Do cke t 	Nos . 	14 	and 	17) 	are 	ALLOWED 	and 	the 	case 	is 	DISMISSED.
So 	ord e red.
Nat hanie l 	M. 	Gorton
Senior 	United 	States 	District 	Judge
Dated : 	March 7 , 2026
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