Mills v. Poole

Filing 157

DECISION AND ORDER denying 150 Motion Pursuant to Fed. R. Civ. P. 15 & 60. Signed by Hon. Michael A. Telesca on 06/04/2019. (AFB)-CLERK TO FOLLOW UP-The Clerk of Court is directed to mail a copy of this Decision and Order to the petitioner, Richard Mills.

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RICHARD MILLS,
Plaintiff,

DECISION AND ORDER
No. 1:16-cv-00984-MAT

-vsROBERT C. NOONAN, Genesee
County, RANDOLPH ZICKL,
WILLIAM ZICKL, ROBERT ZICKL,
LAWRENCE FRIEDMAN, DAVID GANN,
CHARLES ZAMBTIO, JOHN RIZZO,
DAVID MORABITO, STATE OF NEW
YORK (Injunctive Relief)
Defendants.
RICHARD MILLS,

DECISION AND ORDER
No. 1:11-cv-00440-MAT
Petitioner,

-vsJOHN B. LEMPKE,
Respondent.
RICHARD MILLS,

DECISION AND ORDER
No. 1:06-cv-00842-MAT
Petitioner,

-vsSUPERINTENDENT T. POOLE,
Respondent.

INTRODUCTION
Presently before the Court are identical “Motions Pursuant to
Fed. R. Civ. P., Rule [sic] 60 & 15” filed by pro se litigant
Richard Mills (“Mills”) in the above-captioned, closed cases. Mills

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seeks vacatur of the judgments entered dismissing the complaints or
petitions

pursuant

to

Federal

Rule

of

Civil

Procedure

Rule

(“F.R.C.P.”) 60(b)(3) and 60(d)(3) and permission to amend the
complaint and petitions in the above-captioned actions pursuant to
F.R.C.P. 15. Recognizing that a motion under F.R.C.P. 60(b)(3) is
untimely under that subsection’s one-year limitations period, Mills
seeks “equitable tolling.” Mills also seeks recusal of all the
district judges and magistrate judges in this District pursuant to
28 U.S.C. §§ 144 and 455, appointment of counsel, appointment of a
handwriting expert, and appointment of a private investigator to
assist him. For the reasons discussed below, the motions are denied
in their entirety.
DISCUSSION
F.R.C.P. 60(b)(3)

provides that a court may relieve a party

of a final judgment or order for “fraud (whether previously called
intrinsic or extrinsic), misrepresentation, or misconduct by an
opposing party.” Fed. R. Civ. P. 60(b)(3). As Mills is aware, a
motion under

Rule

60(b)(3)

has

a

strict

one-year

statute

of

limitations. See Fed. R. Civ. P. 60(c)(1) (“A motion under Rule
60(b) must be made within a reasonable time—and for reasons [in
subsections] (1), (2), and (3) no more than a year after the entry
of the judgment or order or the date of the proceeding.”). Mills
acknowledges that his F.R.C.P. 60(b)(3) motion is untimely but
suggests that the one-year limitations period is subject to tolling

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under

a

theory

individual

of

involved

“equitable
in

his

estoppel”

state

court

because
criminal

nearly

every

proceedings

allegedly made false representations on a multiplicity of subjects.
The underlying “facts” in support of Mills’ equitable estoppel
argument have been considered by this Court previously and rejected
as outlandish and unfounded.
In any event, Mills cites no authority for the proposition
that “equitable estoppel” or “equitable tolling” is available with
regard to a motion pursuant to F.R.C.P. 60(b)(3). To the contrary,
the one-year limitations period imposed by F.R.C.P. 60(c)(1) on
F.R.C.P. 60(b)(3) motions is “‘absolute[.]’” Warren v. Garvin, 219
F.3d 111, 114 (2d Cir.) (quoting 12 James Wm. Moore, Moore’s
Federal Practice § 60.65[2][a], at 60–200 (3d ed. 1997)), cert.
denied, 531 U.S. 968 (2000). “There are no exceptions to this rule
based on the appeal process, ignorance of the alleged fraud, or
other extenuating circumstances in the case.” In re Waters, No.
99-31833, 2011 WL 3678910, at *14 (Bankr. D. Conn. Aug. 23, 2011)
(citing King v. First Am. Investigations, Inc., 287 F.3d 91 (2d
Cir.) (per curiam) (holding F.R.C.P. 60(b)(3) relief inappropriate
where the final judgment was entered August 12, 1998 and the motion
to vacate was filed May 11, 2000; rejecting the pendency of appeal
as a factor that tolled the one-year period), cert. denied, 537
U.S. 960, reh’g denied, 537 U.S. 1098 (2002).
Mills also cites F.R.C.P. 60(d)(3), the “savings provision” of

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F.R.C.P. 60, which provides that the rule “does not limit a court’s
power to . . . set aside a judgment for fraud on the court.” Fed.
R. Civ. P. 60(d)(3). There is no time limit for motions under
F.R.C.P. 60(d)(3). See Serszysko v. Chase Manhattan Bank, 461 F.2d
699, 702 (2d Cir. 1972). “‘[F]raud upon the court’ as distinguished
from fraud on an adverse party [covered by F.R.C.P. 60(b)(3)] is
limited to fraud which seriously affects the integrity of the
normal process of adjudication.” Gleason v. Jandrucko, 860 F.2d
556, 559 (2d Cir. 1988) (citing Kupferman v. Consolidated Research
& Mfg. Corp., 459 F.2d 1072, 1078 (2d Cir. 1972); 7 J. Moore,
Federal Practice ¶ 60.33, at 360 (2d ed. 1987)).
Thus, “fraud on the court” “must involve more than injury to
a single litigant; it is limited to fraud that ‘seriously’ affects
the integrity of the normal process of adjudication.” Moore’s
Federal Practice ¶ 60.21[4][a], at 60-55 to 60-56 & n. 19 (3d ed.
2018) (citing Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322
U.S. 238, 246 (1944)). Although Mills has begun peddling his legal
briefs to criminal defendants convicted in Genesee County, it is
apparent that these individuals are merely vehicles through which
Mills hopes to more widely disseminate his feverish conspiracy
theories. Mills is the only putative victim of the fraud allegedly
perpetrated by the band of conspirators—which now includes the
undersigned—described in Mills’ pleadings.
Furthermore, “relief for fraud on the court is available only

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where the fraud was not known at the time of settlement or entry of
judgment.” United States v. Sierra Pac. Indus., Inc., 862 F.3d
1157, 1168 (9th Cir. 2017) (citing Hazel-Atlas, 322 U.S. at 244
(allowing relief for “after-discovered fraud”); other citations
omitted)), cert. denied, 138 S. Ct. 2675 (2018). Mills has been
complaining about corruption, conspiracy, and nepotism in Genesee
County for decades. The “new” facts that he adduces about this
Court’s knowledge of and participation in the alleged cabal consist
essentially of items from the undersigned’s resume, e.g., that the
undersigned was in the practice of law at a certain firm prior to
becoming the Monroe County Surrogate. All of this information has
been public knowledge for years. It is only after this Court has
consistently

denied

Mills

relief—because

his

claims

lack

any

arguable basis in law or fact—that he has resorted to accusing the
undersigned of being part of the vast conspiracy in Genesee County
and beyond.

Mills’

pattern

is

clear

and

predictable:

if

you

disagree with him and do not give in to his demands, you are a
criminal and a despot and must be ousted.
In short, to accept that Mills has demonstrated “fraud on the
court”

would

require

a

suspension

of

disbelief

that

is

not

achievable by a sane and rational person. His motion for relief
from judgment is denied as factually untethered from reality and
legally frivolous.
Having denied vacatur, the Court denies the requests to amend

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the petitions and complaint as moot. Likewise, the requests for
recusal of the entire bench of this District, appointment of
counsel, appointment of a handwriting expert, and appointment of a
private investigator are denied as moot.
CONCLUSION
For the reasons discussed above, Mills’ “Motions Pursuant to
Fed. R. Civ. P., Rule [sic] 60 & 15” are denied in their entireties
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). The Court further declines to issue a certificate of
appealability as Mills has not made a substantial showing of the
denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).
SO ORDERED.
s/ Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

June 4, 2019
Rochester, New York.

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