Nicholas v. Bratton et al

Filing 233

OPINION AND ORDER re: 223 MOTION for Reconsideration Plaintiff's Motion for Partial Reconsideration or, in the Alternative, for Leave to Amend filed by Jason B. Nicholas. For the foregoing reasons, Plaintiff's 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. (Signed by Judge J. Paul Oetken on 5/23/2019) (ne)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JASON B. NICHOLAS,
Plaintiff,

15-CV-9592 (JPO)
OPINION AND ORDER

-vWILLIAM 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’ crossmotions 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
Dkt. No. 67.)
1

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))).
2

“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
3

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
4

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
5

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-ahalf 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
6

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 NYPDissued 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,
7

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.
(See Dkt. No. 224 at 17–18.)
8

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
clarifies below why it found that argument unpersuasive.
9

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
10

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
WL 1017533, at *7 n.11 (S.D.N.Y. Mar. 2, 2019) (collecting cases); see also Levy v. Young
11

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
underdeveloped” argument raised in footnote in reply brief).
12

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
13

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
to whether that same conduct violated the First Amendment as well.
14

III
For the foregoing reasons, Plaintiff’s 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
____________________________________
J. PAUL OETKEN
United States District Judge

15