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 

 
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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 preexisting 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.