Mills v. New York State et al

Filing 15

ORDER denying 14 Plaintiffs Second Motion to Vacate the Judgment 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).. Signed by Hon. Michael A. Telesca on 12/21/16. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

RICHARD MILLS,
Plaintiff,
DECISION AND ORDER
No. 1:15-cv-00280(MAT)

-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,
Defendants.

I.

Background
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
10-year 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
Supervision
post-release
determinate

(“DOCCS”)

had

supervision
sentence.

unlawfully

upon

Plaintiff

the

imposed

original

also

a

period

imposition

asserted

that

New

of

of

a

York

1

Plaintiff was required to pay the filing fee because he had accumulated
“three strikes” pursuant to 28 U.S.C. § 1915(g).

Criminal Procedure Law

§ 470.15(1), 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 alleged
that Genesee County’s assigned counsel program is unconstitutional.
The

Court

(Arcara,

D.J.)

dismissed

the

Complaint

on

February 2, 2016 (Dkt #5), on the basis that all of the claims were
barred by Heck v. Humphrey, 512 U.S. 477 (1994). Plaintiff then
filed a Motion to Vacate the Judgment (Dkt #8) and Motion for
Sanctions (Dkt #10).
The matter was transferred to the undersigned on August 16,
2016 (Dkt #9). On October 11, 2016, the Court issued a Decision and
Order (Dkt #13) denying Plaintiff’s Motion to Vacate the Judgment
and Motion for Sanctions with prejudice.
On December 13, 2016, Plaintiff sent a letter addressed to the
undersigned and to Judge Arcara which he characterized as a letter
motion under Rule 60 of the Federal Rules of Civil Procedure “to
vacate the decision in 15-cv-280 within one year, and no attorney,
defendant, [sic] or service took place.” (Dkt #14). While Plaintiff
appears to admit that the first and second causes of action in his
Complaint were improvidently raised, he asserts that the third
cause of action, challenging the constitutionality of Genesee
County’s assigned counsel program, “is viable.” (Id.). However,
Plaintiff states, the third cause of action “is covered in new

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civil [action] 16-cv-984, properly plead [sic] with the news [sic]
facts.”

(Id.).

Plaintiff concludes,

I guess what I would like to try to do is vacate the
decision and order dated 2/2/2016 by Judge Arcara and
then I will formally withdraw the action and hope the
filing fee either be returned or moved to cover 16-cv984.
. . . .
(Id.).
For the reasons discussed below, the letter-motion seeking
vacatur under Rule 60(b) (“the Second Motion to Vacate”) is denied.
II.

Discussion
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).
Plaintiff

does

not

cite

any

particular

subsection

of

Rule 60(b) in support of his letter-motion. Subsections (1) through
(5)

have

no

applicability

here.

The

Court

accordingly

has

considered the letter-motion as brought pursuant to Rule 60(b)(6),
which 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). “Rule 60(b)(6) is properly invoked when there are
extraordinary circumstances justifying relief, when the judgment
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may work an extreme and undue hardship, and when the grounds for
relief are not recognized in clauses (1)-(5) of the Rule.” D’Angelo
v. State Farm Fire & Cas. Co., 32 F. App’x 604, 605 (2d Cir. 2002)
(citing Nemaizer v. Baker, 793 F.2d 58, 63 (2d Cir. 1986)).
Here, the Court can discern only two reasons for Plaintiff
bringing this motion. The first is pecuniary; Plaintiff would like,
if possible, to have his filing fee refunded to him so that it can
be applied in his most recently filed civil case, in which he has
filed a motion to proceed in forma pauperis.2 The second reason
appears to be a matter of litigation strategy. Although Plaintiff
already has accrued more than the three strikes necessary for
28 U.S.C. § 1915(g), he apparently wishes to avoid another one.3
However, neither of these reasons “justifies relief.” FED. R. CIV.
P. 60(b)(6).
Moreover, “extraordinary circumstances” are patently lacking.
Plaintiff’s assertion that this “really big mess” “is no fault of
[his] nor the courts” is unconvincing in light of this Court’s
familiarity with Plaintiff’s calculated litigation strategy of
commencing lawsuit after lawsuit based on allegations he previously
2

The Court observes that this suggestion strongly suggests that Plaintiff
did not have a good faith basis for filing the in forma pauperis motion in his
newest case.
3

Given that Plaintiff’s 2004 convictions have not been overturned or
otherwise judicially invalidated, Judge Arcara’s dismissal of the Complaint
pursuant to Heck’s favorable termination rule most likely counts as a strike for
purposes of Section 1915(g). See, e.g., Mercer v. Lamb, No. 1:13-CV-1052, 2013
WL 5951542, at *2 (N.D.N.Y. Nov. 6, 2013); Walton v. Alston, No. 10 CIV. 6301
JSRJCF, 2011 WL 873245, at *2 (S.D.N.Y. Feb. 15, 2011), report and recommendation
adopted, No. 10 CIV. 6301 JSR, 2011 WL 891205 (S.D.N.Y. Mar. 11, 2011), adhered
to, No. 10 CIV. 6301 JSR, 2011 WL 1045933 (S.D.N.Y. Mar. 21, 2011).

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has been informed are lacking an arguable basis in law or fact.
Plaintiff here made a deliberate decision to institute this lawsuit
and must live with the consequences of his decision.
In sum, there is no legal or equitable basis for granting
Plaintiff’s Second Motion to Vacate. The Court will not allow
Plaintiff to “voluntarily” withdraw the Complaint in this action,
and will not refund him the filing fee or apply it toward his
newest case, 1:16-cv-00984.
III. Conclusion
For the reasons discussed above, Plaintiff’s Second Motion to
Vacate the Judgment is 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).
SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

December 21, 2016
Rochester, New York.

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