Mills v. New York State et al
-CLERK TO FOLLOW UP-DECISION and ORDER denying with prejudice 8 Plaintiff's Motion to Vacate ; denying with prejudice 10 Plaintiff's Motion for Sanctions. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal fro m this order would not be taken in good faith, and therefore in forma pauperis status is denied for purpose of an appeal. Signed by Hon. Michael A. Telesca on 10/11/16. The Clerk of the Court is requested to mail a copy of this Decision and Order to the pro se plaintiff. (AFB)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
-vsNEW YORK STATE, BRIAN FISCHER,
ANTHONY ANNUCCI, RICHARD DESIMONE,
SUPERINTENDENT SHEEHAN, NICOLE
CRANE, OFFICE OF COUNSEL JOHN/JANE
DOE #1, JOHN/JANE DOE #2, DEPUTY
COMMISSIONER JOHN/JANE DOE #3,
ANDREW CUOMO, ERIC SCHNEIDERMAN,
Proceeding pro se, Richard Mills (“Plaintiff”), an inmate at
Five Points Correctional Facility,1 filed this action against
Defendants, challenging the legality of the sentences imposed
following his December 16, 2004 convictions in Genesee County Court
of the State of New York. Plaintiff specifically attacked the 10year determinate sentence that was re-imposed on January 31, 2011,
pursuant to New York Correction Law § 601-d, which required the
re-imposition of the determinate sentence by the County Court
because the New York Department of Corrections and Community
Plaintiff was required to pay the filing fee because he had accumulated
“three strikes” pursuant to 28 U.S.C. § 1915(g).
determinate sentence. According to Plaintiff, there was no new
“recommit[ment]” order or warrant of commitment issued committing
him anew to
DOCCS’ custody, which meant there was no “judicial
sentence,” and Defendants were holding him unlawfully.
also contended that New York Criminal Procedure Law
which prescribes what the Appellate Division of New York State
Supreme Court may review upon a direct appeal from a conviction, is
unconstitutional was applied to him in an unconstitutional manner.
Plaintiff further asserted that Genesee County’s assigned counsel
program is based upon nepotism and unconstitutional.
Plaintiff’s motion for an order directing service by the United
States Marshals Service as moot, and denied leave to appeal to the
Second Circuit as a poor person.
In pro se papers dated July 20, 2016 (Dkt #8), Plaintiff moved
to vacate the February 16, 2016, Decision and Order dismissing his
Complaint pursuant to Federal Rule of Civil Procedure 60(b)(1)-(6).
Plaintiff also has moved for sanctions (Dkt #10) under Federal Rule
of Civil Procedure 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 reasons set forth in
subsections (1) through (6). The moving party bears the burden of
proof and must convince the reviewing court that “exceptional
circumstances” exist for vacating the judgment. United States v.
International Bhd. of Teamsters, 247 F.3d 370, 391 (2d Cir. 2001).
Petitioner states that all six subsections of Rule 60(b) justify
granting relief on 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.
Rule 60(b)(1) allows for vacatur upon a showing of mistake,
inadvertence, surprise, or excusable neglect.
Rule 60(b)(1) is
“available for a district court to correct legal errors by the
court.” United Airlines, Inc. v. Brien, 588 F.3d 158, 175 (2d Cir.
2009) (quotation and citation omitted). “Rule 60(b)(1) affords a
party relief from a material mistake that changed the outcome of
the court’s judgment.” Matura v. United States, 189 F.R.D. 86, 90
(S.D.N.Y. 1999)) (finding that the petitioner’s delayed challenge
was an improper attempt to use Rule 60(b)(1) to convince the court
to reconsider the judgment)). Indeed, the degree of kinship between
Judge Noonan and the Zickl Brothers has no bearing whatsoever on
the judgment dismissing the Complaint in this action. As noted
above, Judge Arcara did not reach the merits of Plaintiff’s claims
assigned counsel program. Rather, Judge Arcara relied on the
Plaintiff’s claims, although phrased in terms of civil rights
violations under 42 U.S.C. § 1983, were actually challenges to his
current detention and imprisonment based upon his 2004 convictions
and sentences, including the resentence of the 2011 attempted
first-degree assault conviction. Because success on his claims in
imprisonment, Judge Arcara found, Plaintiff’s claims were barred by
Heck, 512 U.S. at 584. None of the information Plaintiff has
submitted in support of his Motion to Vacate regarding the alleged
degree of kinship between Judge Noonan and the Zickl Brothers is
relevant to, or in any way affects, Judge Arcara’s reasoning in the
Therefore, Rule 60(b)(1) cannot provide a basis for relief.
Plaintiff contends that the newspaper article constitutes
“newly discovered evidence that, with reasonable diligence, could
not have been discovered in time to move for a new trial under Rule
59(b)” for purposes of Rule 60(b)(2). Since there was no trial in
this proceeding, subsection (2) of Rule is inapplicable.
Rule 60(b)(3) allows for vacatur where there has been “fraud
misrepresentation, or misconduct by an opposing party.” Although
Plaintiff strenuously insists that Judge Noonan has committed
fraud, Judge Noonan has never been an “opposing party” in this
action. Furthermore, none of the named defendants, nor any attorney
on their behalf, ever appeared in this action, and therefore could
misrepresentations in this action. Rule 60(b)(3) cannot provide a
basis for relief.
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 cannot and does not
void this Court’s judgment.
Plaintiff likewise 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 its prospective application is no longer equitable. The
Court’s Judgment dismissing the Complaint is not subject to being
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)].”).
Lastly, 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)
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
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
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, advance argument, or adopt strategy that
benefitted town at officer’s expense).
In short, Plaintiff has not demonstrated that “extraordinary
circumstances” exist so as to justify reopening the Judgment
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.
Rule 11 has no applicability to the instant proceeding. Judge
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
October 11, 2016
Rochester, New York.
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