          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).


                                - 6 -
           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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