Nicholas v. Bratton

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

JASON B. NICHOLAS,

Plaintiff, 15-CV-9592 (JPO)

-v- OPINION AND ORDER

WILLIAM BRATTON, Police Commissioner,

New York City Police Department, et al.,

Defendants.

J. PAUL OETKEN, District Judge:

Plaintiff Jason B. Nicholas brings this civil rights action against Defendants the City of

New York (“the City”), William Bratton, Stephen Davis, Eugene Whyte, and Michael DeBonis

pursuant to 42 U.S.C. Section 1983 (“Section 1983”), alleging violations of his First, Fourth, and

Fourteenth Amendment rights. (Dkt. No. 126 ¶¶ 159–64.) On March 26, 2019, the Court issued

an Opinion and Order (“the Opinion”) addressing the parties’ cross-motions for summary

judgment. (Dkt. No. 219.) Before the Court now is Plaintiff’s motion for partial reconsideration

of the Opinion, or, in the alternative, for leave to file a third amended complaint. (Dkt. No. 223.)

For the reasons that follow, Plaintiff’s motion is denied.

I

Familiarity with the Court’s March 26, 2019 Opinion addressing the parties’ cross-

motions for summary judgment on Nicholas’s non-Monell claims is presumed.1 See Nicholas v.

Bratton, No. 15 Civ. 9592, 2019 WL 1369462 (S.D.N.Y. Mar. 26, 2019). In brief, at issue in this

1 As the Court explained in the Opinion, the recent summary judgment motions

addressed only Nicholas’s claims against Davis and DeBonis in their individual capacities, as

discovery for Plaintiff’s Monell claims has been bifurcated. (Dkt. No. 219 at 2–3 & n.2; see also

suit are Nicholas’s challenges to the seizure of his City-issued press credential by officers of the

New York City Police Department at the scene of a partial building collapse in Midtown

Manhattan. The factual and procedural background of this dispute is summarized more fully in

the Opinion. See id. at *1–13.

As is relevant here, in the Opinion the Court allowed Nicholas’s First Amendment claims

to proceed against Defendants DeBonis and Davis in their individual capacities only insofar as

those claims were predicated on a theory of viewpoint discrimination. See id. at *14–31. On

April 9, 2019, Nicholas moved for partial reconsideration of the Opinion’s First Amendment

analysis, or, in the alternative, for leave to file a third amended complaint. (Dkt. No. 223.) The

motion is fully briefed (Dkt. Nos. 224, 227, 229), and the Court is now prepared to rule.

II

“A motion for reconsideration is an extraordinary remedy to be employed sparingly in the

interests of finality and conservation of scarce judicial resources.” Drapkin v. Mafco Consol.

Grp., Inc., 818 F. Supp. 2d 678, 695 (S.D.N.Y. 2011) (citation and internal quotation marks

omitted). To prevail, the movant must demonstrate either “(1) an intervening change in

controlling law; (2) the availability of new evidence[;] or (3) a need to correct a clear error or

prevent manifest injustice.” Jacob v. Duane Reade, Inc., 293 F.R.D. 578, 580–81 (S.D.N.Y.

2013) (quoting Drapkin, 818 F. Supp. 2d at 696); see also Cioce v. Cty. of Westchester, 128 F.

App’x 181, 185 (2d Cir. 2005) (summary order) (“Generally, motions for reconsideration are not

granted unless the moving party can point to controlling decisions or data that the court

overlooked—matters, in other words, that might reasonably be expected to alter the conclusion

reached by the court.” (quoting In re BDC 56 LLC, 330 F.3d 111, 123 (2d Cir. 2003) (internal

quotation marks omitted), abrogation on other grounds recognized by In re Zarnel, 619 F.3d

156, 167 (2d Cir. 2010))).

“A motion for reconsideration is not an opportunity for making new arguments that could

have been previously advanced.” Liberty Media Corp. v. Vivendi Universal, S.A., 861 F. Supp.

2d 262, 265 (S.D.N.Y. 2012) (internal quotation marks omitted). Accordingly, a party’s

“attempt to raise new arguments on reconsideration is itself sufficient to warrant rejecting them.”

Collins v. City of New York, No. 14 Civ. 8815, 2019 WL 1413999, at *4 (S.D.N.Y. Mar. 29,

2019).

III

In its Opinion, the Court denied the parties’ cross-motions for summary judgment on

Nicholas’s First Amendment claims to the extent that those claims alleged that the seizure of his

press credential was discriminatory. Nicholas, 2019 WL 1369462, at *16–24, *30–31. But the

Court granted on qualified immunity grounds Defendants Davis and DeBonis’s motion for

summary judgment to the extent that Nicholas’s First Amendment claims alleged that the seizure

of his press credential reflected an unlawful time, place, and manner restriction. Id. at *31.

In arguing for reconsideration of this latter point, Nicholas claims that the Court failed to

take into account that Defendants reacted to his violation of the City’s time, place, and manner

restriction not by simply removing him from the premises, but instead by confiscating his press

credential “for eight months without providing notice of how to get it back.” (Dkt. No. 224 at

1.) According to Nicholas, the First Amendment implications of Defendants’ eight-month

confiscation of his credential had been “fully briefed by both parties in their cross motions for

summary judgment,” and Nicholas submits that “[h]ad the Court considered this issue, . . . it

would have granted summary judgment in Plaintiff’s favor on [his] First Amendment claim.”

(Id.)

In response, Defendants contend, among other things, that the operative complaint failed

to adequately plead a First Amendment claim predicated on Defendants’ prolonged retention of

Nicholas’s press credential, and that to the extent the complaint does plead such a claim,

Nicholas failed to adequately invoke it when moving for summary judgment. (Dkt. No. 227 at

1–7.)

The Court concludes that Nicholas’s operative complaint (see Dkt. No. 126), which was

filed when Nicholas was representing himself pro se, should be construed to have raised a First

Amendment claim against Defendants Davis and DeBonis in their individual capacities based on

their eight-month-long seizure of Nicholas’s press credential. However, the Court agrees with

Defendants that Nicholas’s summary judgment papers failed to demonstrate as a matter of law

that the prolonged nature of the seizure of Nicholas’s credential amounted to a violation of the

First Amendment. This is because Nicholas challenged the eight-month seizure of his press

credential only in the context of his time, place, or manner arguments based on the City’s “frozen

zone” policy as it was applied on October 30, 2015, arguments that the Court fully addressed in

the Opinion. Because Nicholas calls for reconsideration of the Opinion’s First Amendment

analysis based on contentions that he did not effectively raise when moving for summary

judgment, he fails to identify an adequate basis for reconsideration.

A

The parties disagree with respect to whether Nicholas’s operative complaint (see Dkt. No.

126), which was filed when Nicholas was still representing himself pro se, should be construed

to have raised a First Amendment claim against Defendants Davis and DeBonis in their

individual capacities based on the prolonged confiscation of his press credential. (Compare Dkt.

No. 224 at 11–17, with Dkt. No. 227 at 6–7.)

“It is well established that the submissions of a pro se litigant must be construed liberally

and interpreted ‘to raise the strongest arguments that they suggest.’” Triestman v. Fed. Bureau

of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (quoting Pabon v. Wright, 459 F.3d

241, 248 (2d Cir. 2006)). This duty is especially pressing “when the pro se plaintiff alleges that

her civil rights have been violated,” Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d

Cir. 2008), because the purpose of affording liberal construction to pro se filings is

fundamentally to protect “pro se litigants from inadvertent forfeiture of important rights because

of their lack of legal training,” Triestman, 470 F.3d at 475 (internal quotation marks omitted).

Fulfilling this duty requires courts to look primarily to the facts underlying a pro se party’s

allegations, rather than to the specific legal theory or authority relied upon. See McLeod v.

Jewish Guild for the Blind, 864 F.3d 154, 158 (2d Cir. 2017) (per curiam) (“[T]he failure [of a

pro se litigant] in a complaint to cite a statute, or to cite the correct one, in no way affects the

merits of a claim. . . . [F]actual allegations alone are what matters.” (quoting Albert v. Carovano,

851 F.2d 561, 571 n.3 (2d Cir. 1988) (en banc))).

This case presents an added wrinkle, because Nicholas now asks the Court to continue to

liberally construe his pro se pleading even after he has retained counsel. Some courts in this

Circuit have declined to afford a liberal construction to pro se papers after counsel has been

retained and has had a sufficient opportunity to amend the pro se submissions. See, e.g., Rose v.

Garritt, No. 16 Civ. 3624, 2018 WL 443752, at *4 n.6 (S.D.N.Y. Jan. 16, 2018) (declining to

construe pro se plaintiff’s complaint liberally where plaintiff “later obtained counsel who had an

opportunity to file an amended complaint but ultimately adopted Plaintiff’s pro se complaint as

‘the operative complaint’” (citations omitted)). But the majority of courts have continued to

afford liberal construction to pro se pleadings even where counsel takes over the case at a later

stage. See, e.g., Gonzalez v. J.P. Morgan Chase Bank, N.A., 228 F. Supp. 3d 277, 283 n.3

(S.D.N.Y. 2017) (“[T]he plaintiff initially brought this action proceeding pro se. Because

counsel was retained after the Amended Complaint and the opposition to the motions to dismiss

were filed, the motions to dismiss are treated as if they are directed against the pleadings of a pro

se litigant.”); Perdum v. Forest City Ratner Cos., 174 F. Supp. 3d 706, 718 (E.D.N.Y. 2016)

(“Because Plaintiff was pro se at the time of filing his amended complaint, the Court construes

his pleadings liberally. . . .”); Holmes v. Parade Place, LLC, No. 12 Civ. 6299, 2013 WL

5405541, at *7–8 (S.D.N.Y. Sept. 26, 2013) (affording liberal construction to pro se plaintiff’s

complaint when adjudicating defendants’ motions to dismiss even though plaintiff had retained

counsel to brief the motions to dismiss).

The Court agrees with the approach adopted in these latter cases, which appear to more

closely adhere to the Second Circuit’s directive to protect “pro se litigants from inadvertent

forfeiture of important rights because of their lack of legal training,” Triestman, 470 F.3d at 475

(quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). This approach is particularly

appropriate in this case, where counsel appeared on behalf of the pro se party over one-and-a-

half years after this case had been initiated (compare Dkt. No. 1, with Dkt. Nos. 106–08), and

only after the pro se party’s contested motion for leave to file the operative amended complaint

had been fully briefed by the pro se party and granted by the Court in a reasoned opinion (see

Dkt. Nos. 88–90, 95, 99). Accordingly, and despite the fact that Nicholas is currently

represented by counsel, this Court will apply the Second Circuit’s fact-based approach for

purposes of determining what claims Nicholas has pleaded in this action. See McLeod, 864 F.3d

at 156–58; see also Soto v. Walker, 44 F.3d 169, 170 (2d Cir. 1995) (instructing district courts

not to be “misled by [a pro se party’s] inability to articulate pellucidly the strongest basis for [a]

claim”).

Applying that approach here, the Court concludes that the operative complaint should be

read to include a First Amendment claim against DeBonis and Davis in their individual

capacities in connection with the eight-month confiscation of his press credential. The prolonged

nature of the seizure of Nicholas’s press credential is one of the central facts pleaded by Nicholas

in the operative complaint; indeed, Nicholas repeatedly alleges facts relating to the duration of

this seizure and the injuries it caused him. (See, e.g., Dkt. No. 126 ¶¶ 5 (“Besides removing

Plaintiff from the scene, Defendants Davis and DeBonis summarily revoked Plaintiff’s NYPD-

issued press credential . . . .”); 156 (“As a result of the Defendants’ revocation of Plaintiff’s

NYPD-issued press credential, Plaintiff’s news-gathering activity has been significantly abridged

. . . .”); 160 (alleging constitutional violation by Davis and DeBonis “when they abridged

Plaintiff’s news-gathering activity . . . [by] revoking his press credential”); 164 (alleging

constitutional violation by all Defendants when they “interfer[ed] with news-gathering by . . .

arbitrarily confiscating NYPD-issued press credentials from news-gatherers”). These allegations

indicate that Nicholas intended to challenge Defendants’ prolonged seizure of his credential,

even if his lack of legal training prevented him from clearly articulating the full range of legal

theories under which he could do so.

In arguing for a contrary conclusion, Defendants make much of the fact that the

paragraph in which Nicholas articulates his First Amendment claims against Davis and DeBonis

in their individual capacities neglects to repeat his allegations with respect to their seizure of his

credential. (See Dkt. No. 126 ¶ 159; Dkt. No. 227 at 6–7.) But the Second Circuit has instructed

courts not to limit their consideration of a pro se litigant’s pleadings to the validity or scope of

the specific legal theories expressly pleaded therein. McLeod, 864 F.3d at 156–58; Soto, 44 F.3d

at 173. To so limit the scope of constitutional claims asserted by a pro se litigant’s pleading

would result only in the “inadvertent forfeiture of important rights because of [his] lack of legal

training.” Triestman, 470 F.3d at 475 (quoting Traguth, 710 F.2d at 95). Instead, this Court is

obligated to construe Nicholas’s pleading “to raise the strongest arguments that [it] suggest[s].’”

Id. at 474 (quoting Pabon, 459 F.3d at 248). Here, Nicholas’s repeated and extensive allegations

regarding the prolonged seizure of his credential clearly suggest an attempt to invoke any rights,

including First Amendment rights, potentially infringed by that seizure. Indeed, Defendants

cannot seriously dispute that they too were aware that the operative complaint could be read to

suggest a First Amendment claim predicated on the seizure of Nicholas’s press credential, as

DeBonis and Davis noted the possibility of such a claim when briefing their own summary

judgment motion—albeit with the caveat that they believed that “Plaintiff did not plead [such a]

claim in his Second Amended Complaint against [them].” (Dkt. No. 184 at 17–18 & n.12.)

Accordingly, Nicholas’s pleading should be construed to have asserted a First

Amendment claim against Defendants Davis and DeBonis in their individual capacities based on

the prolonged seizure of his press credential.2

B

Even though the operative complaint can be construed to assert a First Amendment claim

against Davis and DeBonis in their individual capacities based on the prolonged seizure of

Nicholas’s press credential, the Court agrees with Defendants that Nicholas failed to articulate a

valid basis for his entitlement to judgment as a matter of law on this claim at the summary

judgment stage. Nicholas’s failure to have done so justified the denial of his motion for

summary judgment with respect to this alleged First Amendment violation, and also precludes

granting the instant motion for reconsideration.

When moving for summary judgment, Nicholas examined the First Amendment

implications of Defendants’ seizure of his press credential only in the context of his challenges to

the City’s enforcement of the October 30, 2015 “frozen zone,” doing so with reference to the

time, place, or manner rubric for regulation of First Amendment activities in public fora. (See

2 Because the Court concludes that Nicholas has adequately pleaded a First

Amendment claim against DeBonis and Davis in their individual capacities based on the seizure

of his credential, Nicholas’s motion for leave to replead to assert such a claim is denied as moot.

Dkt. No. 187 at 15–17 (articulating legal standards governing time, place, and manner restriction

legal standards); 20–24 (applying those standards to “the confiscation and indefinite seizure of

Mr. Nicholas’ press credential,” id. at 23).) The Court has already explained why Defendants

Davis and DeBonis are entitled to summary judgment on Nicholas’s claim that the City enforced

an unlawful time, place, and manner restriction against him in the form of the October 30, 2015

frozen zone.3 See Nicholas, 2019 WL 1369462, at *24–27. As the Court explained in the

Opinion, Davis and DeBonis were entitled to qualified immunity on Nicholas’s time, place, and

manner claim predicated on the frozen zone, even though genuine disputes of fact existed with

respect to both the reasonableness of the tailoring of the time, place, or manner restriction that

was the October 30, 2015 frozen zone, and the adequacy of alternative channels available to

those seeking to gather news at the scene. See id. at *25–27, *31. In moving for

reconsideration, Nicholas presents no new facts and identifies no legal error underlying that

conclusion.

The Court reiterates that with respect to Defendants’ enforcement of the October 30,

2015 frozen zone, it remains true that if a jury were to credit Nicholas’s evidence showing that

the frozen zone was overbroad, then the enforcement of that zone as against Nicholas and the

resulting seizure of his credential would indeed amount to a First Amendment violation. In

contrast, and as the Court exhaustively discussed in the Opinion when addressing Nicholas’s

time, place, and manner arguments, a different conclusion would hold if a jury were to credit

Defendants’ evidence showing that the City’s regulations on press access to West 38th Street on

October 30, 2015 were necessary for purposes of protecting life and public safety. Either way,

3 To the extent that Nicholas faults the Court for failing to explicitly address his

argument that the seizure of his press credential at the scene of the collapsed building somehow

rendered Defendants’ time, place, and manner restriction overbroad as a matter of law, the Court

the Court explained, assuming that Defendants had not acted out of a desire to discriminate on

the basis of viewpoint, Nicholas pointed to no authority that would have rendered it objectively

unreasonable for Defendants to believe that their actions at the scene were lawful. Thus, to the

extent that Nicholas seeks reconsideration of the Court’s conclusion that DeBonis and Davis

were entitled to summary judgment on a time, place, and manner claim predicated on their

seizure of his credential at the scene of the building collapse, Nicholas has given the Court no

reason to second-guess its determination that DeBonis and Davis are protected by qualified

immunity.

In seeking reconsideration, Nicholas zooms out, focusing primarily on Defendants’

seizure of his “press credential for eight months without providing notice of how to get it back.”

(Dkt. No. 224 at 1.) But Defendants’ eight-month-long seizure of Nicholas’s credential cannot

be construed as Defendants’ eight-month-long enforcement of the time, place, and manner

restriction that was the October 30, 2015 frozen zone. Instead, the prolonged nature of

Defendants’ retention of Nicholas’s press credential implicates First Amendment concerns

entirely distinct from the City’s management of a specific rescue operation in a manner that

infringed upon the public’s right to gather news in public spaces.

Nicholas, who had the aid of counsel when deciding which legal frameworks to apply in

arguing his summary judgment motion, continues to err in asserting that Defendants’ prolonged

retention of his press-credential ought to be evaluated by considering whether this continued

retention was justified based on the exigencies of an emergency rescue that had concluded

months earlier. (See, e.g., Dkt. No. 187 at 23 (“[T]he confiscation and indefinite seizure of Mr.

Nicholas’ press credential was a plainly overbroad means of enforcing Defendants’ alleged

safety concerns.”); Dkt. No. 224 at 7 (“Defendants’ confiscation of Nicholas’ press credential for

nearly eight months without notifying him how he could get it back . . . ignored numerous less

speech-restrictive alternatives that could have readily addressed any legitimate safety

concerns.”).) The time, place, and manner restriction that Nicholas is seeking to challenge here

does not concern the physical limitations placed on his ability to access the scene of the building

collapse, but rather relates to the consequences of his having violated those limitations. Nicholas

has pointed to no authority that analyzes time, place, and manner restrictions this way. Cf.

McCullen v. Coakley, 573 U.S. 464, 486–96 (analyzing reasonableness of a time, place, and

manner restriction by considering the extent of speech restricted without reference to

punishments for violations of the challenged restrictions); Ward v. Rock Against Racism, 491

U.S. 781, 793–803 (same). At the very least, then, Defendants Davis and DeBonis are entitled to

qualified immunity on this claim, given the lack of case law that considers the consequences of

violating a time, place, and manner restriction as part of the tailoring inquiry when assessing that

restriction. To have obtained summary judgment against Davis and DeBonis on his First

Amendment claim predicated on the prolonged seizure of his credential, Nicholas would have

needed to make entirely different arguments, based on a categorically distinct First Amendment

analysis.

The First Amendment doctrine that best fits the contentions Nicholas now raises is one

that Nicholas failed to properly address when moving for summary judgment: the prior-restraint

doctrine.4 A prior restraint is a “regulation that ‘g[i]ve[s] public officials the power to deny use

4 In a footnote in his reply brief, Nicholas asserted for the first and only time, and in

just two sentences, that the facts surrounding Defendants’ “suspension or revocation of Nicholas’

press card . . . also amounted to a prior restraint on Nicholas’ right to gather news.” (Dkt. No.

207 at 9 n.6.) Nicholas’s having done so was an insufficient method for putting this contention

before the Court on summary judgment. This is true both because “courts ‘ordinarily will not

consider issues raised for the first time in a reply brief,’” Horowitz v. Nat’l Gas & Elec., LLC,

No. 17 Civ. 7742, 2018 WL 4572244, at *4 n.3 (S.D.N.Y. Sept. 24, 2018) (quoting McBride v.

BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 96 (2d Cir. 2009)), and because “arguments raised

[only] in footnotes need not be addressed,” United States v. Mendlowitz, No. 17 Cr. 248, 2019

of a forum in advance of actual expression.’” Hobbs v. Cty. of Westchester, 397 F.3d 133, 148

(2d Cir. 2005) (alterations in original) (quoting Se. Promotions, Ltd. v. Conrad, 420 U.S. 546,

553 (1975)). The Second Circuit has recently confirmed that the prior-restraint framework may

govern challenges to “[f]acially content-neutral laws that require permits or licenses of

individuals or entities engaged in certain forms of expression,” explaining that such licensing

laws may “constitute prior restraints when they (1) disallow that expression unless it has

previous permission from a government official and (2) vest that official with enough discretion

that it could be abused.” Citizens United v. Schneiderman, 882 F.3d 374, 387 (2d Cir. 2018)

(footnote omitted); see also FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223–30 (1990)

(plurality opinion) (concluding that a city’s licensing scheme for “sexually oriented businesses”

was an impermissible prior restraint where the scheme failed to include a time limit within which

the city was obliged to make a licensing decision). The prior restraint framework has also been

used to analyze as-applied challenges to one-off restrictions imposed by courts and local

governments on the gathering and dissemination of particular newsworthy events. See, e.g., Neb.

Press Ass’n v. Stuart, 427 U.S. 539, 562 (1976) (considering as-applied challenge to trial court’s

pretrial gag order by “examin[ing] the evidence before the trial judge when the order was entered

to determine . . . whether the record support[ed] the entry of a prior restraint on publication”); see

also Bantam Books v. Sullivan, 372 U.S. 58, 70–72 (1963) (sustaining prior-restraint challenge to

state’s censorship regime based on “[w]hat [state] has done, in fact” pursuant to the system and

the Court’s assessment that the “record shows plainly that [state officials] went f[a]r beyond”

what was permissible).

Adult Inst., 103 F. Supp. 3d 426, 441 (S.D.N.Y. 2015) (denying consideration of “drastically

The First Amendment interests implicated by the arguments raised by Nicholas in the

instant motion belong under the prior-restraint framework for addressing licensing schemes that

preemptively bar the future enjoyment of First Amendment liberties. For example, Nicholas

repeatedly notes that the prolonged seizure of his credential resulted in a “disproportionate ban

on his ability to gather news at other future breaking news scenes.” (Dkt. No. 224 at 7 (emphasis

added).) In asserting that the prolonged seizure of his credential restrained his ability to gather

news for future speech “in advance of its actual expression,’” Nicholas is raising a prior-restraint

argument. Citizens United, 882 F.3d at 386 (quoting United States v. Quattrone, 402 F.3d 304,

309 (2d Cir. 2005)). Similarly, Nicholas repeatedly argues that Defendants violated the First

Amendment because they failed to “allow[] him to get the credential back and resume his

coverage of breaking news promptly, instead of confiscating it for eight months.” (Dkt. No. 224

at 8.) Defendants’ delay in returning what was functionally Nicholas’s newsgathering license,

and its impact on his ability to conduct future newsgathering, implicated the Supreme Court’s

concerns regarding “prior restraint[s] that fail[] to place limits on the time within which the

decisionmaker must issue the license.” FW/PBS, Inc., 493 U.S. at 226 (plurality opinion); see

also id. at 227 (“A scheme that fails to set reasonable time limits on the decisionmaker creates

the risk of indefinitely suppressing permissible speech.”). When moving for summary judgment,

Nicholas failed to address whether the prolonged nature of his press credential’s seizure operated

as a prior restraint on his future newsgathering in violation of the First Amendment.

It is perhaps also true that to the extent that the City’s press-credentialing system as a

whole places overbroad and categorical access restrictions on journalists’ newsgathering, those

restrictions might be analyzed under the rubric of time, place, and manner, as well as prior

restraint. But the time, place, or manner restriction that would be the subject of such an analysis

would have to be the City’s general rules and regulations for the issuance, revocation, and

suspensions of press credentials, see, e.g., 38 NYCR § 11-01 et seq., not the City’s frozen-zone

policy as it was applied on October 30, 2015. Because Nicholas’s challenges to the City’s

licensing scheme writ large are not presently before the Court, the Court need not consider that

question. In the context of the as-applied claims as to which Nicholas sought summary

judgment, it suffices to say that Nicholas’s continued and exclusive focus on Defendants’ failure

to justify the prolonged suspension of his credential with reference to the safety concerns of one

particular building collapse missed the mark. This is because at some point after the seizure of

Nicholas’s credential, Defendants’ continued possession of the credential ceased to be fairly

construed as Defendants’ enforcement of the only time, place, and manner restriction challenged

in Nicholas’s summary judgment papers, and instead was effectuated pursuant to the City’s

broader press-credentialing system.

Nicholas has yet to address the merits of that system in the First Amendment context,5

and his failure to have done so precludes granting Nicholas judgment as a matter of law on his

First Amendment claims to the extent predicated on the prolonged nature of the seizure of his

credential. Because Nicholas failed to put these questions before the Court at the summary

judgment stage, it would be improper to consider them in the first instance in connection with a

motion for reconsideration. Nicholas’s motion for reconsideration must therefore be denied.

5 It bears repeating that Nicholas did fully brief the constitutional deficiencies of

Defendants’ processes for managing and adjudicating challenges to suspensions of press

credentials as part of his procedural due process arguments, and neither party has moved for

reconsideration of the Court’s conclusion that Defendants’ conduct following their seizure of

Nicholas’s press credential “fell short of the requirements of procedural due process.” See

Nicholas, 2019 WL 1369462, at *34. The present motion for reconsideration is addressed only

II

For the foregoing reasons, Plaintiffs motion for reconsideration is DENIED, and

Plaintiff's motion for leave to file an amended pleading is DENIED as moot.

The parties are directed to confer regarding further proceedings and to submit a joint

letter addressing the parties’ proposals within seven (7) days of the date of this order.

The Clerk of Court is directed to close the motion at Docket Number 223.

SO ORDERED.

Dated: May 23, 2019

New York, New York

United States District Judge

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