Gillis v. Chase , 894 F.3d 1 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1533
GEORGE W. GILLIS,
Plaintiff, Appellant,
v.
WILLIAM G. CHASE,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Allison D. Burroughs, U.S. District Judge]
Before
Torruella, Boudin, and Lynch,
Circuit Judges.
Edward J. McCormick, III and McCormick & Maitland on brief
for appellant.
Jeremy I. Silverfine, Deidre Brennan Regan, Leonard H.
Kesten, and Brody, Hardoon, Perkins & Kesten, LLP on brief for
appellee.
June 25, 2018
BOUDIN, Circuit Judge. The present appeal stems from
the dismissal of a complaint by the district court filed by George
Gillis against William Chase. The origin of the controversy lies
well in the past, separated from this case by related prior
litigation brought by Gillis.
On December 9, 2008, Gillis, operating a truck at a
construction site in Westwood, Massachusetts, struck and fatally
injured one Edward Hansen, who was videotaping the scene. Gillis,
who seems to have been backing up at the time, was later charged
with motor vehicle homicide in state court, but was acquitted after
a trial. Gillis then sought vindication in two further lawsuits.
The first, Gillis I, brought under 42 U.S.C. § 1983 in
the federal district court in Massachusetts, charged William
Chase, Westwood Police Chief when Hansen's death occurred, and
William Keating, then-Norfolk County District Attorney, with
constitutional violations. Gillis v. Keating, No. 11-10736, 2012
WL 772716 (D. Mass. Mar. 7, 2012). Gillis claimed that the
defendants violated his constitutional rights by knowingly
charging him with a crime without probable cause. The district
court, in a memorandum describing Gillis' claims as flimsy,
dismissed the case without discovery or trial for failure to state
a claim and, as to Keating, as barred by prosecutorial immunity.
In September 2012, Gillis filed a new action, Gillis II,
in state court against the Norton Police Chief, Brian Clark, and
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a member of the Norton Board of Selectmen, Robert Kimball. The
case, after being removed to federal court, was dismissed on
summary judgment. Gillis v. Clark, No. 12-12043 (D. Mass. Aug.
25, 2014), aff'd, No. 14-2018 (1st Cir. 2015). Gillis says
Hansen's death and Gillis' acquittal were not the focus of this
second case, but that discovery in that case prompted his next
step.
Gillis' new complaint in the federal district court in
Massachusetts, Gillis III, against Chase alone sought to reopen
Gillis I. Gillis v. Chase, No. 16-11451, 2017 WL 1535082 (D. Mass.
Apr. 27, 2017). Relying in part on evidence supposedly unearthed
in Gillis II, Gillis now claims that Chase, as the investigating
officer, conspired to charge Gillis in the criminal case as a
result of undue influence exerted by the Norton Police Chief,
Clark.
The new complaint invoked Fed. R. Civ. P. 60, which
permits relief from a judgment or order on specified grounds, id.
at 60(b), subject to various time limits, id. at 60(c). Rule 60
does not preclude an independent action--in "equity"--to relieve
a party from an earlier judgment, order, or proceeding, id. at
60(d)(1), nor does it limit a court's power to set aside a judgment
for fraud on the court, id. at 60(d)(3).
The grounds for relief asserted in Gillis III were not
straightforward. The complaint alleged that Gillis I should not
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have been dismissed; that Chase had a discussion or discussions
with Clark about the criminal investigation involving Gillis; that
evidence of such a discussion or discussions (but not their full
content) emerged in Gillis II; and that had discovery been allowed
in Gillis I, that case would not have been dismissed.
On April 27, 2017, the district court issued a memorandum
and order granting Chase's motion to dismiss. The order found
that Gillis III was time-barred, whether treated under Rule 60(b)
or as an independent action. Additionally, the court ruled that
the claims did not rise to the level of "fraud on the court," which
was a precondition to one of Gillis' theories, and that Gillis'
complaint failed to state a claim upon which relief can be granted.
This appeal followed.
When a jury acquits a truck driver who struck and killed
a pedestrian, one suspects that the truck driver had some facts on
his side, and Gillis--who certainly knows what went on in his own
trial for vehicular homicide--says that Hansen was facing away
from his truck and was not wearing his hearing aids. Gillis'
theory in Gillis I, it appears, was that (1) Chase and Keating had
no proper basis for fostering the criminal prosecution (Gillis
leaves obscure Chase's precise role) and (2) that to knowingly
prosecute a defendant without probable cause is itself a due
process violation. But Gillis says nothing to clarify the
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prosecution's case presented during his criminal trial or to show
that it was hopelessly weak.
Instead, Gillis here asserts that discovery in Gillis II
revealed that some interaction between Chase and Clark occurred
(not described in detail by Gillis). But, Gillis still offers
nothing to suggest that the criminal prosecution lacked any basis
or that Gillis I was wrongly dismissed. Indeed, Gillis' brief
admits that Chase testified that "Clark did not offer an opinion
as to Mr. Gillis" during their conversation.
Nor does the acquittal--with conviction requiring the
higher standard of proof beyond a reasonable doubt--establish that
Chase lacked the requisite probable cause to support a charge
against Gillis. No one knows at the charging stage what evidence
will emerge during a trial or how effective counsel will be; and
no one can predict how an unknown jury will react especially where,
as here, both Gillis and Hansen may have been at fault.
Against this background, we turn first to the Rule 60
claims. Rule 60(b) sets the terms for relief by motion from a
final judgment, order, or proceeding, where the motion does not
rest on clerical errors and the like that fall under Rule 60(a).
Fed. R. Civ. P. 60(a)-(b). For relief under Rule 60(b)(1), (2)
and (3)--covering claims of mistake, inadvertence, surprise, or
excusable neglect; newly discovered evidence; and fraud,
misrepresentation, or misconduct by an opposing party--the motion
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must be made within a reasonable time and "no more than a year"
after the entry of the judgment, order, or the date of the
proceeding. Id. at 60(b)(1)-(3), (c)(1). As the district court
found, the order dismissing Gillis I was entered on March 7, 2012;
Gillis III was not filed until July 12, 2016.1
The court held that even if Gillis' claims were not
premised on a ground upon which the one-year bar operated, Gillis
III--filed more than four years after the conclusion of Gillis I
and over twenty-one months after the depositions in Gillis II--
was not filed within a "reasonable time" as required by Rule
60(c)(1). See Bouret-Echevarría v. Caribbean Aviation Maint.
Corp., 784 F.3d 37, 43-44 (1st Cir. 2015) (collecting cases). We
agree.
Gillis relies also on Rule 60(d)(1) and (3), which say
that Rule 60 does not limit the court's power to entertain an
independent action or to set aside a judgment for "fraud on the
court" itself--as opposed to fraud worked by one side on the other.
Fed. R. Civ. P. 60(d)(1),(3).
1 Three other reasons for relief under Rule 60(b) are exempted
from the one-year limit, but none of the three is invoked or could
be invoked by Gillis. Id. at 60(b)(4)-(6). Two--Rule 60(b)(4)
and (b)(5)--are not pertinent. As to Rule 60(b)(6)--"any other
reason that justifies relief"--the word "other" excludes the very
claim of new evidence that permeates Gillis' rendition. See
Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863
(1988).
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Rule 60(d)(1) is not an affirmative grant of power; it
merely underscores that Rule 60 does not limit a court's pre-
existing power in equity to entertain an independent action,
United States v. Beggerly, 524 U.S. 38, 45 (1998), to remedy a
"grave miscarriage of justice," Fontanillas-Lopez v. Morell Bauzá
Cartagena & Dapena, LLC, 832 F.3d 50, 63 n.12 (1st Cir. 2016)
(citations omitted); see also Mitchell v. Rees, 651 F.3d 593, 595
(6th Cir. 2011) (citations omitted). Gillis does not come close
to meeting this standard. Perhaps conscious of this, Gillis' brief
only passingly refers to his Rule 60(d)(1) argument in a
parenthetical.
Gillis also invokes Rule 60(d)(3), but, as the district
court explained, fraud on the court requires interference with the
judicial process itself, such as bribery of a judge. See Roger
Edwards, LLC v. Fiddes & Son Ltd., 427 F.3d 129, 133 (1st Cir.
2005) (citations omitted); see also Fontanillas-Lopez, 832 F.3d at
63 n.11 (citations omitted). Again, Gillis has nothing colorable
to say.
Lastly, the district court said that Gillis did not state
a viable claim under 42 U.S.C. § 1983. Gillis' theory was that
Clark violated his due process rights by supporting the motor
vehicle homicide charge absent probable cause. But an Assistant
Clerk-Magistrate in the state court held an evidentiary hearing
and made a probable cause finding. Indeed, Clark's own state of
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mind was arguably irrelevant to the inquiry. See Devenpeck v.
Alford, 543 U.S. 146, 153 (2004). Agreeing with the district
court's analysis, we sustain its ruling that Gillis' complaint
fails to state a claim upon which relief can be granted.
The district court judgment is affirmed. Costs are
awarded to Chase.
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