GEORGE W. GILLIS, Plaintiff, Appellant,
WILLIAM G. CHASE, Defendant, Appellee.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Allison D. Burroughs, U.S. District
J. McCormick, III and McCormick & Maitland on brief for
I. Silverfine, Deidre Brennan Regan, Leonard H. Kesten, and
Brody, Hardoon, Perkins & Kesten, LLP on brief for
Torruella, Boudin, and Lynch, Circuit Judges.
BOUDIN, CIRCUIT JUDGE.
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
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
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
September 2012, Gillis filed a new action, Gillis
II, in state court against the Norton Police Chief,
Brian Clark, and 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.
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.
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).
grounds for relief asserted in Gillis III were not
straightforward. The complaint alleged that Gillis I
should not 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.
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.
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 ...