United States District Court, S.D. New York
JASON B. NICHOLAS, Plaintiff,
THE CITY OF NEW YORK, Defendants.
OPINION AND ORDER
PAUL OETKEN 'United States
Jason B. Nicholas, an independent photojournalist, filed this
action pro se against Defendants William Bratton,
Stephen Davis, Michael DeBonis, and the City of New York on
December 8, 2015. (Dkt. No. 2.) Following an unsuccessful
motion for emergency relief, the Court granted Nicholas leave
to file an amended complaint. (Dkt. No. 48
(“FAC”); Dkt. No. 51.) Defendants then moved to
dismiss the operative complaint, and this Court denied that
motion. (Dkt. No. 85.)
now moves for leave to amend a second time. (Dkt. No. 88.)
Defendants oppose the motion, and, following a flurry of
letters, the Court heard oral argument on the question of
whether the proposed second amended complaint runs afoul of a
settlement and signed release in another action.
(See Dkt. No. 93; Dkt. No. 94; Dkt. No. 95.) For the
reasons that follow, Nicholas's motion for leave to amend
is granted in part and denied in part.
with this case's history and its factual background is
presumed and is discussed in more detail in this Court's
Opinion and Order of February 27, 2017. See Nicholas v.
City of N.Y., No. 15 Civ. 9592, 2017 WL 766905 (S.D.N.Y.
Feb. 27, 2017). In sum, Nicholas alleges that Defendants
abridged his newsgathering and revoked his press credential
on October 30, 2015 (and then failed to return the credential
or provide Nicholas a fair hearing in the weeks and months
that followed). In his first amended complaint, Nicholas also
chronicled several other run-ins with Defendants to provide a
factual basis for his Monell claims.
as relevant here, on February 27, 2017, this Court denied
Defendants' motion to dismiss the operative first amended
complaint. See Nicholas, 2017 WL 766905. In its
Opinion and Order denying Defendants' motion, the Court
included the following footnote:
Nicholas also discusses [Deputy Commissioner, Public
Information (“DCPI”) Lieutenant Eugene] Whyte as
a putative defendant, but has failed to name Whyte in the
caption or to serve him. Any claims against Whyte, to the
extent Nicholas purports to assert them, are therefore
dismissed without prejudice based on failure to serve.
Nicholas may seek leave to amend his pleadings to include
Whyte if he wishes.
Id. at *4 n.1 (internal citations omitted).
Thereafter, Nicholas moved for leave to file a second amended
complaint. (Dkt. No. 88.)
proposed second amended complaint (Dkt. No. 88-1
(“SAC”)) makes several changes to the pleadings:
It adds Whyte to the caption as a defendant and lists him as
a party (id. ¶ 14); it describes Whyte as
“approv[ing], acquesc[ing] to, condon[ing] and
enforce[ing]” the alleged policy of abridging
newsgathering, a claim previously brought against other
Defendants (id. ¶ 8; FAC ¶ 6); it includes
some additional description of Whyte's conduct across the
incidents of abridged newsgathering (see SAC
¶¶ 6-7); and it purports to bring new causes of
action against Whyte arising from run-ins on September 17,
2014, and January 4, 2015, separate and apart from the
October 30, 2015, incident at the heart of this case
(id. ¶¶ 162-63).
Court should freely give leave [to amend] when justice so
requires.” Fed.R.Civ.P. 15(a)(2); see also Foman v.
Davis, 371 U.S. 178, 182 (1962). “This permissive
standard is consistent with [the Second Circuit's]
‘strong preference for resolving disputes on the
merits.'” Williams v. Citigroup Inc., 659
F.3d 208, 212-13 (2d Cir. 2011) (quoting New York v.
Green, 420 F.3d 99, 104 (2d Cir. 2005)). “Motions
to amend should therefore be denied only for good reasons,
including undue delay, bad faith or dilatory motive, undue
prejudice to the non-moving party, or futility.”
Gordon v. City of N.Y., No. 14 Civ. 6115, 2016 WL
4618969, at *3 (S.D.N.Y. Sept. 2, 2016) (citing Burch v.
Pioneer Credit Recovery, Inc., 551 F.3d 122, 126 (2d
Cir. 2008)). Pro se submissions, in particular, must
be construed liberally and read “to raise the strongest
arguments they suggest.” Ortiz v. McBride, 323
F.3d 191, 194 (2d Cir. 2003).
oppose Nicholas's motion for leave to amend on futility
grounds-they argue chiefly that the res judicata
effect of the settlement terms in another case brought by
Nicholas in this District against some of the same Defendants
(as well as a general release he signed in connection with
that case) precludes the claims he seeks to add to this
action. (Dkt. No. 89.) See Nicholas v. City of N.Y.,
No. 15 Civ. 9896. Nicholas, for his part, argues that the
settlement he agreed to was not so broad as to prevent the
amendments he proposes in his second amended complaint here
and that the general release he signed in connection with
that case was not valid. (Dkt. No. 93; Dkt. No. 95.)
settling the earlier suit against the City of New York, the
Stipulation of Settlement, dated October 17, 2016, provides
that the City of ...