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Gillis v. Chase

United States Court of Appeals, First Circuit

June 25, 2018

GEORGE W. GILLIS, Plaintiff, Appellant,
WILLIAM G. CHASE, Defendant, Appellee.


          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.

          Before Torruella, Boudin, and Lynch, Circuit Judges.


         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 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 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 ...

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