United States District Court, D. Rhode Island
DAVID A. SILVIA, Plaintiff,
STATE OF RHODE ISLAND DEPARTMENT OF HUMAN SERVICES; and COURTNEY HAWKINS, Defendants.
WILLIAM E. SMITH, CHIEF JUDGE
the Court is Plaintiff's Motion for Reconsideration of
Order Accepting the Report and Recommendation (ECF No. 13).
For the reasons stated herein, Plaintiff's motion is
Factual and Procedural Background
a non-lawyer, filed a Complaint on behalf of Kenneth Almeida,
requesting that this Court review the Rhode Island Department
of Human Services' administrative hearing decision
regarding Almeida's eligibility start date for
Supplemental Nutrition Assistance Program
(“SNAP”) benefits. Plaintiff's Complaint was
referred to Magistrate Judge Sullivan, who recommended
dismissal without prejudice based on her findings that: (1)
Silvia did not have standing to bring the case, having
suffered no injury himself; and (2) Silvia, as a non-lawyer,
was not authorized to represent another pro se litigant in
federal court under 28 U.S.C. § 1654 or DRI LR Gen
205(a)(2). (See generally R. & R., ECF
No. 7.) This Court agreed and accepted the R. & R. in a
text order dated November 19, 2018. That same day, Plaintiff
filed a belated objection to the R. & R., stating:
Being PRO-SE I am not an attorney, however my intent was not
to litigate this concern, as my intent was to address what I
felt is a bias hearing [sic] on behalf of the RI DHS/EOOH. If
I have made a mistake, I request guidance as how to correct
this, as should I include Mr. Almeida as a Plaintiff? I was
his appointed representative which allowed me to argue this
matter before the hearing officer, I also have his POA.
Please advise me if I can change the Plaintiff responding?
(Pl.'s Obj. to R. & R. 1, ECF No. 12.) Thereafter, he
filed a Motion for Reconsideration and a second Objection to
the R. & R. (ECF No. 14), which was identical in form and
substance to his first Objection.
outset, the Court recognizes that it is federal law and the
local rules of the federal district courts, not the laws of
the States in which they are located, that determine who may
practice in a federal court. Accordingly, the fact that the
Rhode Island Short Form Power of Attorney Act (“POA
Act”), R.I. Gen. Laws § 18-16-9, permits a pro se
litigant to represent the interest of another person in state
judicial and administrative proceedings has no bearing on
whether Silvia may represent Almeida's interests in the
United States District Court for the District of Rhode
Island. See R.I. Gen. Laws § 18-16-9(a)(1).
it is 28 U.S.C. § 1654, DRI LR Gen 205(a)(2), and the
applicable Federal Rules of Civil Procedure, which govern who
may appear in this federal district court. None of these
authorities allows unlicensed laypeople to represent anyone
other than themselves. See, e.g., Lattanzio v.
COMTA, 481 F.3d 137, 139 (2d Cir. 2007) (Although §
1654 recognizes that an individual generally has the right to
proceed pro se with respect to his own claims “[t]he
statute does not permit unlicensed laymen to represent anyone
else other than themselves”) (quotations omitted);
Benedict v. Folsted, No. CV 18-242 WES, 2018 WL
3491697, at *2 (D.R.I. July 20, 2018) (“[A] pro se
plaintiff's ability to sue for anyone other than himself
is expressly prohibited by the Local Rules of this
Court.”) (citing DRI LR Gen. 205(a)(2)).
Silvia's power of attorney does not empower him to
proceed pro se on Almeida's behalf in federal litigation.
See Williams v. U.S., 477 Fed. App'x 9,
11 (3d Cir. 2012) (“Parties may proceed in federal
court only pro se or through counsel. See 28 U.S.C.
§ 1654. [The claimant's daughter's] power of
attorney for her father may confer certain decision-making
authority under state law, but it does not permit her to
represent him pro se in federal court.”)
even where a person is a minor or legally incompetent and
therefore in need of a representative to sue on his or her
behalf under Federal Rule of Civil Procedure 17(c), the
representative still needs to have an attorney in federal
litigation. See Fed.R.Civ.P. 17(c) (“A minor
or an incompetent person who does not have a duly appointed
representative may sue by a next friend or by a guardian ad
litem.”); O'Diah v. Volkswagen of Am.,
Inc., 91 Fed. App'x 159, 160 (1st Cir.
2004)(“Even assuming that [the complainant] is
incompetent and needed a representative, such as his father,
to sue on his behalf, see FRCP 17(c), his father
would still need to be represented by an attorney.”);
Cheung v. Youth Orchestra Found. of Buffalo, Inc.,
906 F.2d 59, 61 (2d Cir. 1990)(holding that a non-attorney
parent must be represented by counsel when bringing an action
on behalf of his child because “it is not in the
interests of minors or incompetents that they be represented
by non-attorneys”); Weber v. Garza, 570 F.2d
511, 514 (5th Cir. 1978) (finding that individuals not
licensed to practice law may not use the “next
friend” device as an artifice for the unauthorized
practice of law).
the fact that Silvia was permitted to proceed pro se on
Almeida's behalf in the administrative hearings below
does not mean he can do so in the federal district court. And
while Silvia possesses a valid Power of Attorney to make
decisions on Almeida's behalf, he is still not a lawyer
authorized to practice in federal court.
Court finds that there is no reason to reconsider its
November 19, 2018 text order accepting the R. & R. and
dismissing this case without prejudice. As the dismissal is
without prejudice, Plaintiff may refile his case if and when
he obtains attorney representation, subject to the applicable
statute of ...