The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
MICHAEL NIGRO, :
:
Plaintiff, :
: 19-CV-2369 (JMF)
-v- :
: MEMORANDUM OPINION
THE CITY OF NEW YORK et al., : AND ORDER
:
Defendants. :
:
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JESSE M. FURMAN, United States District Judge:
In this case, Plaintiff Michael Nigro, a professional photographer, journalist, and
filmmaker, brought claims against the City of New York (the “City”) and five officers from the
New York City Police Department (“NYPD”), relating to his arrest during a protest against then-
presidential candidate Donald J. Trump on March 19, 2016. On September 11, 2020, the Court
issued an Opinion and Order, familiarity with which is presumed, dismissing all of Nigro’s
claims save one: a failure-to-train claim against the City of New York. See Nigro v. City of New
York, No. 19-CV-2369 (JMF), 2020 WL 5503539 (S.D.N.Y. Sept. 11, 2020) (ECF No. 60).
Both sides now move for reconsideration. In particular, Nigro moves for reconsideration of the
dismissal of his claim for the denial of the right to a fair trial, see ECF No. 64; and the City
moves for reconsideration of the one claim that survived, see ECF No. 62. For the following
reasons, the Court denies both motions for reconsideration.
LEGAL STANDARDS
Motions for reconsideration are governed principally by Federal Rule of Civil Procedure
59(e) and Local Civil Rule 6.3, which are meant to “ensure the finality of decisions and to
prevent the practice of a losing party examining a decision and then plugging the gaps of a lost
motion with additional matters.” Medisim Ltd. v. BestMed LLC, No. 10-CV-2463 (SAS), 2012
WL 1450420, at *1 (S.D.N.Y. Apr. 23, 2012). “It is well-settled that [a motion for
reconsideration] is not a vehicle for relitigating old issues, presenting the case under new
theories, securing a rehearing on the merits, or otherwise taking a second bite at the apple.
Rather, the standard for granting a . . . motion for reconsideration is strict, and reconsideration
will generally be denied unless the moving party can point to controlling decisions or data that
the court overlooked.” Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir.
2012) (internal quotation marks, citations, and alterations omitted). Thus, “the rules permitting
motions for reconsideration must be narrowly construed and strictly applied so as to avoid
repetitive arguments on issues that have been considered fully by the [C]ourt.” SOHC, Inc. v.
Zentis Food Sols. N. Am., LLC, No. 14-CV-2270 (JMF), 2014 WL 6603951, at *1 (S.D.N.Y.
Nov. 20, 2014) (internal quotation marks omitted). Ultimately, “a district court has broad
discretion in determining whether to grant a motion [for reconsideration].” Baker v. Dorfman,
239 F.3d 415, 427 (2d Cir. 2000).
DISCUSSION
Measured against these stringent standards, both motions for reconsideration fall short.
A. The City’s Motion
The Court ruled that, in light of the Supreme Court’s recent decision in Nieves v. Bartlett,
139 S. Ct. 1715 (2019), Nigro plausibly alleges that he was subjected to a retaliatory arrest in
violation of the First Amendment, but dismissed the claim against the named individual
Defendant based on qualified immunity. See Nigro, 2020 WL 5503539, at *3-4. By contrast,
the Court concluded that Nigro’s failure-to-train claim against the City survived because
“qualified immunity does not extend to municipalities.” Id. at *5. The City now asks the Court
to reconsider that ruling for three reasons, none of which is availing. First, the City contends that
Nigro’s failure-to-train claim is premised solely on his Fourth Amendment false arrest claim, not
on his First Amendment retaliatory arrest claim. See ECF No. 63 (“Defs.’ Mem.”), at 5. The
City, however, is incorrect that “the wording of [Nigro’s] theory . . . [makes] no mention of any
engagement in First Amendment activity,” id.; Nigro explicitly alleges that his “false arrest
would not have occurred but for the deliberate decision made by the City of New York not to
properly train NYPD officers on the First Amendment rights of media, including photographers,”
ECF No. 43 (“SAC”), ¶ 10 (emphasis added). Not only does the Complaint cite the First
Amendment explicitly, but the reference to “media” strongly supports an inference of First
Amendment-protected activity. As for the City’s contention that Nigro’s failure-to-train theory
“leave[s] out any mention of ‘retaliation,’” Defs.’ Mem. 5, it is well established that
“[d]etermining whether a complaint states a plausible claim for relief [is] a context-specific task
that requires the reviewing court to draw on its judicial experience and common sense.” Ashcroft
v. Iqbal, 556 U.S. 662, 679, (2009). Magic words such as “retaliation” are thus not required.
See, e.g., United Magazine Co. v. Murdoch Magazines Distribution, Inc., No. 00-CV-3367
(AGS), 2001 WL 1607039, at *11 (S.D.N.Y. Dec. 17, 2001).
The City next argues that the Court misapplied Nieves, which held that probable cause
does not necessarily defeat a retaliatory arrest claim where the conduct at issue “is endemic but
rarely results in arrest,” explicitly citing “jaywalking” as an example. 139 S. Ct. at 1727. In
support of that argument, the City points out that Nigro was arrested for violating N.Y. Veh. &
Traf. Law § 1156(a), see ECF No. 55-1, which prohibits “walking along and upon . . . [a]
roadway” where an adjacent sidewalk “may be used with safety.” Jaywalking, the City insists, is
prohibited not by Section 1156(a), but by Section 1152, which requires “pedestrian[s] crossing a
roadway” outside a crosswalk to “yield the right of way to all vehicles” and generally prohibits
“cross[ing] a roadway intersection diagonally.” N.Y. Veh. & Traf. Law § 1152. But any
distinction between these sections is immaterial. There is no reason to believe that the Supreme
Court used the term “jaywalking” in Nieves to refer solely to the act of improperly crossing a
roadway, as opposed to the act of improperly walking in the roadway. More to the point, Nieves
used jaywalking as merely an illustrative example, and the City does not argue (let alone show)
that violations of Section 1156(a) result in arrest any more frequently than violations of Section
1152, which is the critical inquiry. See 139 S. Ct. at 1727. Moreover, Nigro invoked Nieves’s
reference to “jaywalking” in his opposition to Defendants’ motion to dismiss, see ECF No. 54
(“Pl.’s MTD Mem.”), at 12-13, yet the City did not in its reply brief make the argument it seeks
to make now, see ECF No. 56 (“Defs.’ MTD Reply”). Even if it had merit, therefore, the
argument is forfeited. See Analytical Surveys, 684 F.3d at 52. So too are the City’s related
arguments that probable cause for another offense would preclude application of the Nieves
exception and that the Nieves exception generally does not support municipal liability. Compare
Defs.’ Mem. 9-12 with Defs.’ MTD Reply.
Finally, the City’s contention that Nigro fails to adequately allege deliberate indifference
and causation simply rehashes the same points Defendants made in their memorandum in
support of the motion to dismiss, see Defs.’ Mem. 13-16; ECF No. 50 (“Defs.’ MTD Mem.”), at
22-25, which the Court already rejected, see Nigro, 2020 WL 5503539, at *6. As such, it is not a
valid basis for reconsideration. See Analytical Surveys, 684 F.3d at 52.
B. Nigro’s Motion
Nigro’s motion with respect to the Court’s dismissal of the fair trial claim is somewhat
more colorable, but it too falls short. To support a claim for denial of the right to a fair trial, a
plaintiff must establish, among other things, that the fabricated evidence “[wa]s likely to
influence a jury’s verdict,” Garnett v. Undercover Officer C0039, 838 F.3d 265, 279 (2d Cir.
2016), which “is properly understood to require a showing of the materiality of the false
information presented,” Garnett v. Undercover Officer C0039, No. 13-CV-7083 (GHW), 2015
WL 1539044, at *8 (S.D.N.Y. Apr. 6, 2015), aff’d, 838 F.3d 265. Here, Nigro alleges that
Defendants falsely (1) “fail[ed] to identify the Plaintiff as working press and [a] professional
photographer”; (2) described the location of the arrest; and (3) stated that NYPD Officer Joseph
Aniano saw Nigro enter the street, walk past metal barricades, and block vehicular traffic. SAC
¶¶ 246-50. Notably, however, the Complaint does not address the relationship between these
statements and any of the charges against Nigro. See id. ¶¶ 243-52. Thus, in support of their
motion to dismiss, Defendants argued that none of the allegedly false statements were material.
See Defs.’ MTD Mem. 19-20. Nigro responded in his opposition memorandum that the
statements were “central to whether the charges against him for standing in the middle of a six-
lane street were valid.” Pl.’s MTD Mem. 20 (emphasis added) (internal quotation marks and
citation omitted). Because Nigro’s own photograph revealed that he had done exactly that, see
SAC ¶ 51, the Court dismissed the fair trial claim on the ground that the allegedly false
statements would not likely influence a jury’s verdict.
Nigro’s motion is well taken insofar as the Court could have done a better job of
explaining that the lack of a plausible allegation of materiality was the basis for dismissal of the
claim. That is, the Court somewhat inartfully stated that Nigro’s claim failed because his “own
photographs reveal that there was probable cause for his arrest and prosecution — at least for
jaywalking, if not for obstructing vehicle traffic,” 2020 WL 5503539, at *5, thereby suggesting
that it was the presence of probable cause, not the lack of materiality, that defeated the fair trial
claim. As Nigro correctly notes, that is not a valid basis for dismissal, as the existence of
probable cause is not a defense to a fair trial claim. ECF No. 65 (“Pl.’s Mem.”), at 6 (citing
Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997)). Thus, the Court clarifies:
The fatal defect in Nigro’s claim is not the existence of probable cause per se, but rather its
factual predicate — namely that, Nigro’s allegations to the contrary notwithstanding, he
indisputably did stand in the middle of the roadway.1 To be sure, “[n]o arrest, no matter how
lawful or objectively reasonable, gives an arresting officer or his fellow officers license to
deliberately manufacture false evidence against an arrestee.” Ricciuti, 124 F.3d at 130.
Nevertheless, the alleged manufacture of false evidence alone — while undoubtedly a source of
grave concern for the justice system, see id. at 125 — does not give rise to a Section 1983 fair
trial claim unless the fabricated evidence was material. See, e.g., Morse v. Fusto, 804 F.3d 538,
547-48 (2d Cir. 2015).
Nigro’s motion is less well taken to the extent he argues that the allegedly false
statements were material to the charge against him for disorderly conduct for one simple reason:
He failed to advance that argument in opposition to Defendants’ motion to dismiss. See Pl.’s
Mem. 5, 7-8. For example, Nigro notes that “[d]isorderly conduct requires a real and immediate
and substantial blockage of traffic.” Id. at 8 (citing cases). Thus, Nigro contends that a
reasonable jury considering a disorderly conduct charge against Nigro could have been
influenced by the allegedly false statement that he was blocking vehicular traffic. Id. at 7; see
also SAC ¶ 50. But Nigro did not press this argument in his opposition to Defendants’ motion to
1 For this reason, nothing in Ekukpe v. Santiago, 823 F. App’x 25 (2d Cir. 2020) (summary
order), invoked by Nigro, see Pl.’s Mem. 2-3, casts doubt on the dismissal either. That is, the
Court’s ruling did not rest on the premise that Defendants’ allegedly false statements would not
likely reach a jury had the criminal case against Nigro proceeded to trial. Instead, it rested on
the premise that the statements would not influence a jury.
dismiss. Instead, he expressly framed the materiality of the statements around “charges . . . for
standing in the . . . street.” Pl.’s MTD Mem. 20 (internal quotation marks omitted). Regardless
of how persuasive Nigro’s “new theor[y]” may be, therefore, he forfeited it. Analytical Surveys,
684 F.3d at 52 (internal quotation marks omitted). Put differently, a motion for reconsideration
is not an appropriate vehicle by which to consider it. See id.
Finally, and in any event, reconsideration of the Court’s dismissal of the fair trial claim is
unwarranted for an independent reason: Upon reflection, the Court agrees with those courts that
have held, following McDonough v. Smith, 139 S. Ct. 2149 (2019), that a fair trial claim requires
a plaintiff to plead and prove “favorable termination” and that a plaintiff who was granted an
adjournment in contemplation of dismissal (“ACD”) cannot do so, at least where, as here, the
“claim challenges the very evidence that supported the initiation of criminal proceedings against
him.” Corso v. Calle-Palomeque, No. 17-CV-6096 (NRB), 2020 WL 2731969, at *7 (S.D.N.Y.
May 26, 2020); see, e.g., Maradiaga v. City of New York, No. 16-CV-8325 (GBD), 2020 WL
5849465, at *5-6 (S.D.N.Y. Oct. 1, 2020); Gondola v. City of New York, No. 16-CV-369 (AMD)
(SJB), 2020 WL 1433874, at *2-6 (E.D.N.Y. Mar. 24, 2020); Smalls v. Collins, No. 14-CV-
02326 (CBA) (RML), 2020 WL 2563393, at *3-6 (E.D.N.Y. Mar. 16, 2020); Daniels v. Taylor,
443 F. Supp. 3d 471, 476-80 (S.D.N.Y. 2020); Miller v. Terrillion, 436 F. Supp. 3d 598, 601-06
(E.D.N.Y. 2020). In its September 11, 2020 Opinion and Order, the Court declined to reach
whether Nigro’s ACD barred his claim, noting that district courts in this Circuit were divided on
the issue. See 2020 WL 5503539, at *5 (citing Simon v. City of New York, No. 16-CV-1017
(NGG) (RML), 2020 WL 1323114, at *5 (S.D.N.Y. Mar. 19, 2020), and Daniels, 443 F. Supp.
3d at 479). Prompted by Nigro’s motion for reconsideration, however, the Court has now
analyzed the issue and surveyed the case law in the Circuit. Consistent with the majority of
decisions on the issue within the Circuit, and substantially for the reasons set forth in the
persuasive opinions by Judge Vitaliano in Miller and Judge Abrams in Daniels, the Court
concludes that Nigro’s ACD does indeed bar his fair trial claim. Thus, even if his other
arguments had merit, reconsideration would still not be warranted.
CONCLUSION
For the foregoing reasons, each side’s motion for reconsideration is DENIED. Per the
Court’s Order of September 30, 2020, ECF No. 67, the City shall file its Answer no later than
two weeks from the date of this Memorandum Opinion and Order. Additionally, the initial
pretrial conference is REINSTATED and scheduled for January 14, 2021, at 3:00 p.m. The
conference will be governed by the Court’s Order of March 18, 2019, and the parties should
prepare accordingly, including by submitting a joint status letter and proposed Case Management
Plan no later than the Thursday prior to that conference. See ECF No. 3.
The Clerk of Court is directed to terminate ECF Nos. 62 and 64.
Dated: December 22, 2020
New York, New York SSE
nited States District Judge