Mills v. Appellate Division Fourth Department et al
DECISION AND ORDER denying 33 Motion to Vacate; denying 37 Motion for Sanctions. Signed by Hon. Michael A. Telesca on 3/22/17. (AFB)-CLERK TO FOLLOW UP- The Clerk of Court is requested to send a copy of this Decision and Order to Plaintiff Richard Mills.
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
-vsAPPELLATE DIVISION FOURTH
DEPARTMENT, JUSTICE KEHOE, JUSTICE
GORSKI, JUSTICE MARTOCHE, JUSTICE
SMITH, JUSTICE PINE, JUSTICE EUGENE
F. PIGOTT, COMMISSION OF JUDICIAL
CONDUCT, LAWRENCE GOLDMAN, STEVEN
COFFEY, COLLEEN DIPIRRO, RICHARD
EMERY, RAOUL LIONEL FELDER,
CHRISTINA HERNANDEZ, THOMAS
KLONICK, DAVID L1CIANO, KAREN
PETERS, ALAN POPE, TERRY RUDERMAN,
FRANCES CAFARELL, RANDOLPH ZICKL,
ELIOT SPITZER, DEL ATWELL,
Pro se inmate Richard Mills (“Plaintiff”) instituted this
action under, inter alia, 42 U.S.C. § 1983 and 1985, alleging the
existence of a conspiracy among a number of Justices of the New
York State Supreme Court, Appellate Division, Fourth Department;
individual Commissioners; the Fourth Department’s Assigned Counsel
Administrator; the New York State Attorney General; and Plaintiff’s
court-appointed appellate counsel. According to Plaintiff, these
constitutional rights to a direct appeal from his conviction and
his constitutional right to the effective assistance of appellate
On March 7, 2006, the Court (Arcara, D.J.) issued an Order
(Dkt #25) finding that, inter alia, the Fourth Department the named
Justices were entitled to absolute judicial immunity; that the
Commissioners of the Commission on Judicial Conduct were entitled
to absolute quasi-judicial immunity; Plaintiff failed to state any
claims against the assigned counsel program administrators; and
Plaintiff’s court-appointed appellate counsel was not acting “under
color of state law” for purposes of Section 1983. Judgment (Dkt
#26) was entered in favor of the defendants on March 8, 2006.
Plaintiff’s appeal to the Second Circuit was dismissed on September
20, 2006 (Dkt #30), as lacking an arguable basis in fact or law.
In pro se papers dated July 20, 2016, Plaintiff moved to
vacate (Dkt #33) the May 10, 2004, Decision and Order dismissing
his Complaint pursuant to Federal Rule of Civil Procedure 60(b)
(“Rule 60(b)”). Plaintiff also has moved for sanctions (Dkt #37)
under Federal Rule of Civil Procedure 11 (“Rule 11”). For the
reasons discussed below, both motions are denied.
MOTION TO VACATE
Pursuant to Rule 60(b), “[o]n motion and just terms, a court
may relieve a party or its legal representative from a final
judgment, order, or proceeding” for any of the following reasons:
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move
for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic
extrinsic), misrepresentation, or misconduct by
(4) the judgment is void;
(5) the judgment has been satisfied, released or
discharged; it is based on an earlier judgment that has
been reversed or vacated; or applying it prospectively is
no longer equitable; or
(6) any other reason that justifies relief.
FED. R. CIV. P. 60(b). Petitioner specifies subsections (1) through
(6) of Rule 60(b) as the grounds for his motion.
The gravamen of Plaintiff’s Motion to Vacate is that Genesee
County Court Judge Robert Noonan, who presided over his criminal
trial in 2004, committed fraud when he allegedly lied in a Decision
and Order dated June 2, 2005, in connection with Plaintiff’s
criminal proceeding. According to Plaintiff, the lie concerned the
degree of kinship between Judge Noonan and Assistant District
Attorneys Robert and William Zickl (“the Zickl Brothers”), neither
of whom was responsible for prosecuting Plaintiff’s criminal case.
In the Decision and Order at issue, Judge Noonan stated that the
Zickl Brothers were his first cousins, once removed. As proof of
Judge Noonan’s alleged lie, Plaintiff has submitted a newspaper
article June 28, 2016, stating that Judge Noonan’s father was the
father-in-law of the Zickl Brothers’ father. Thus, based on the
article, Plaintiff asserts, the Zickl Brothers are actually Judge
According to Plaintiff, this establishes an ethical violation by
Judge Noonan, whom he claims should have recused himself based on
his familial relationship with the Zickl Brothers.
Plaintiff cannot avail himself of subsections (1), (2), or (3)
of Rule 60(b) because his Motion to Vacate was not made within one
year after the Judgment. See FED. R. CIV. P. 60(c) (1) (“A motion
under Rule 60(b) must be made within a reasonable time--and for
reasons (1), (2), and (3) no more than a year after the entry of
the judgment or order or the date of the proceeding.”).
Rule 60(b)(4) which, applies when the judgment is void, cannot
be invoked here. A judgment is void “only if the court that
rendered it lacked jurisdiction of the subject matter, or of the
parties, or if it acted in a manner inconsistent with due process
of law.” Grace v. Bank Leumi Trust Co., 443 F.3d 180, 194 (2d Cir.
2006). The newspaper article discussing the familial relationship
between Judge Noonan and the Zickl Brothers does not have the
effect of voiding this Court’s judgment.
Plaintiff cannot rely on Rule 60(b)(5), which allows vacatur
if the judgment has been satisfied, released or discharged; it is
based on an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable). The Court’s
satisfied, released or discharged. Likewise, it was not based on an
earlier judgment that has been reversed or vacated. Finally, it did
not leave open future adjudication of any issues regarding the
rights of the parties. See Tapper v. Hearn, No. 15-2249-CV,
F.3d ___, 2016 WL 4204794, at *4 (2d Cir. Aug. 10, 2016) (“The fact
that the district court's prior dismissal was not executory and did
not leave open future adjudication of any issues regarding the
rights of the parties now at issue here and before the district
court is fatal to plaintiffs’ claim under [Rule 60(b)(5)].”).
Rule 60(b)(6) provides that a court may relieve a party from
a final judgment for “any other reason that justifies relief.” Fed.
R. Civ. P. 60(b)(6). Significantly, “Rule 60(b)(6) applies only
‘when the asserted grounds for relief are not recognized in clauses
(1)-(5) of the Rule’ and ‘there are extraordinary circumstances
justifying relief.’” Tapper, 2016 WL 4204794, at *4 (quoting
Nemaizer v. Baker, 793 F.2d 58, 63 (2d Cir. 1986); emphasis
supplied). Even assuming that Plaintiff is correct about the actual
relationship between Judge Noonan and the Zickl Brothers, and
further that their relationship was relevant to the
Judgment in this action, any resulting conflict of interest falls
far short of the “extraordinary circumstances” necessary to invoke
Rule 60(b)(6). See Moskowitz v. Coscette, 51 F. App’x 37 (2d Cir.
2002) (any tension that may have existed within attorney’s dual
representation of police chief and town in police officer’s action
alleging retaliation in violation of First Amendment did not rise
to level of “extraordinary circumstance” warranting relief from
final judgment in favor of officer, even if attorney failed to
highlight evidence that police commission had instructed chief to
build a case against officer, where attorney did not take position,
In short, Plaintiff has not demonstrated, nor can he, that
“extraordinary circumstances” exist so as to justify reopening the
Judgment dismissing Plaintiff’s Complaint. Indeed, “extraordinary
circumstances” are plainly absent in this case, where Plaintiff has
been permitted to argue these meritless kinship claims repeatedly,
in both State and Federal court.
MOTION FOR SANCTIONS
Rule 11 requires that “[e]very pleading, written motion, and
other paper must be signed by at least one attorney of record in
the attorney’s name--or by a party personally if the party is
unrepresented[.]” FED. R. CIV. P. 11(a). By affixing his signature
to a pleading, the pro se litigant or the attorney certifies that
to the best of his knowledge, information, and belief, formed after
an inquiry reasonable under the circumstances, that the pleading
(1) is not being presented for any improper purpose, such
as to harass or to cause unnecessary delay or needless
increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions
therein are warranted by existing law or by a
nonfrivolous argument for the extension, modification, or
reversal of existing law or the establishment of new law;
(3) the allegations and other factual contentions have
evidentiary support or, if specifically so identified,
are likely to have evidentiary support after a reasonable
opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on
the evidence or, if specifically so identified, are
reasonably based on a lack of information or belief.
FED. R. CIV. P. 11(b); see also Business Guides, Inc. v. Chromatic
Communications Enterprises, Inc., 498 U.S. 533, 542 (1991) (“The
signature ‘certifies to the court that the signer has read the
document, has conducted a reasonable inquiry into the facts and the
law and is satisfied that the document is well grounded in both,
and is acting without any improper motive.’”).
Plaintiff asserts entitlement to sanctions pursuant to Rule 11
on the basis that the defendants allegedly committed “fraud,
perjury, and [made] misstatements meant to mislead” the Court. The
allegedly untruthful statements by Judge Noonan about the degree of
kinship between himself and the Zickl Brothers, discussed above,
form the basis of Plaintiff’s Rule 11 motion.
proceeding. Judge Noonan obviously has not filed any pleadings in
this Court. Furthermore, none of the named defendants, nor any
attorney on their behalf, has submitted any pleadings in this
Court. As noted above, Plaintiff’s Complaint was dismissed upon
initial screening and never served upon the defendants.
Plaintiff is cautioned that “the filing of a motion for
sanctions is itself subject to the requirements of [Rule 11] and
can lead to sanctions.” FED. R. CIV. P. 11 advisory committee’s note
(1993 Amendments) (quoted in Safe-Strap Co. v. Koala Corp., 270 F.
Supp. 2d 407, 421 (S.D.N.Y. 2003)). Plaintiff’s present motions,
which are also asserted verbatim in nine other cases he has filed
in this Court, are precisely the type of “abusive litigation
tactics,” Gaines v. Gaston, No. 92 CIV. 0643 (DNE), 1998 WL 574380,
at *3 (S.D.N.Y. Sept. 8, 1998), that Rule 11 was intended to deter.
For the reasons discussed above, Plaintiff’s Motion to Vacate
the Judgment and Motion for Sanctions are denied with prejudice.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith, and
therefore in forma pauperis status is denied for purpose of an
appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
s/ Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
March 22, 2017
Rochester, New York.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?