United States District Court, D. Rhode Island
WAYNE A. SILVA, Plaintiff,
ROBERT M. FARRELL, Defendant.
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, UNITED STATES MAGISTRATE JUDGE.
before the Court is Plaintiff Wayne A. Silva's
Fed.R.Civ.P. 60 motion. ECF No. 11. The motion appears to
request relief from an Order dated January 30, 2019 (ECF No.
10, “the Order”), which adopted a report and
recommendation (ECF No. 8). The Order enjoined Plaintiff from
filing further motions or other documents in this matter,
except for a single Fed.R.Civ.P. 60 motion and notice of
appeal, without first obtaining permission from a judge of
this Court. Mindful of the Court's obligation to read
with leniency the filings of pro se litigants like
Plaintiff, Erickson v. Pardus, 551 U.S. 89, 94
(2007), the Court interprets the motion as invoking both
Fed.R.Civ.P. 60(a) and 60(b), and as seeking relief both from
the Order enjoining him from further filings, as well as from
the final judgment entered against him on December 31, 2018,
as to which reconsideration was denied by Text Order on
January 15, 2019 (“the Judgment”).
his prior filings in this case and in the other case filed in
this District, Plaintiff's motion borders on
incomprehensible. See Silva v. Farrell, No. CV
18-650JJM, 2018 WL 6505367, at *1 n.2 (D.R.I. Dec. 11, 2018).
It mentions words and phrases like “forfeiture, ”
“jurisdiction, ” and “avoidance of service
of process, ” with no indication how these concepts
relate to whatever relief Plaintiff may be seeking. It cites
18 U.S.C. § 1963, which sets out criminal penalties in
RICO criminal cases, with no indication how that provision
has anything to do with this civil case. Similarly, it cites
18 U.S.C. § 1073, which deals with flight to avoid
criminal prosecution or testimony, with no hint why such a
criminal statute is pertinent. It is entirely silent
regarding any mistake, error or other flaw affecting the
Court's reasoning for the entry of the Judgment and of
Civ. P. 60(a) provides for the correction of a clerical
mistake or other error affecting a judgment or order. It
“is appropriate where ‘the judgment failed to
reflect the court's intention.' [The Rule] does not,
however, provide for the correction of ‘the deliberate
choice of the district judge.'” Bowen Inv. Inc.
v. Carneiro Donuts, Inc., 490 F.3d 27, 29 (1st Cir.
2007). As with the four Fed.R.Civ.P. 60(a) motions that the
Court denied in Silva v. Thornton, 18-cv-95-WES,
having reviewed Plaintiff's latest motion carefully, the
Court is satisfied that there is no suggestion of mistake or
error so that “Rule 60(a) plainly does not
apply.” AngioDynamics, Inc. v. Biolitec, 880
F.3d 596, 599 (1st Cir. 2018).
Civ. P. 60(b) is more substantive; it provides several
grounds on which a “court may relieve a party or its
legal representative from a final judgment, order, or
proceeding[, ]” including, inter alia,
mistake, inadvertence, surprise or excusable neglect.
Fed.R.Civ.P. 60(b)(1). “While many courts broadly allow
relief under Rule 60(b), ” the First Circuit
“‘has taken a harsher tack.'”
Skrabec v. Town of N. Attleboro, 321 F.R.D. 46, 48
(D. Mass. 2017), aff'd, 878 F.3d 5 (1st Cir.
2017) (quoting Davila-Alvarez v. Escuela de Medicina
Universidad Cent. del Caribe, 257 F.3d 58, 64 (1st Cir.
2001)). The First Circuit “has held that Rule 60 relief
is ‘extraordinary in nature and . . . should be granted
sparingly.'” Id. (quoting
Rivera-Velazquez v. Hartford Steam Boiler Inspection
& Ins. Co., 750 F.3d 1, 19 (1st Cir. 2014)).
“[A] party who seeks relief under [Rule 60(b)] must
establish, at the very least, that his motion is timely; that
exceptional circumstances exist, favoring extraordinary
relief; that if the judgment is set aside, he has the right
stuff to mount a potentially meritorious claim or defense;
and that no unfair prejudice will accrue to the opposing
parties should the motion be granted.”
Rivera-Velazquez, 750 F.3d at 3-4 (internal
quotation marks omitted). Having carefully reviewed
Plaintiff's motion in light of these principles, the
Court concludes that it falls hopelessly short of even
suggesting a conceivable basis for relief under Fed.R.Civ.P.
60(b), never mind exceptional circumstances. Nansamba v.
N. Shore Med. Ctr., Inc., 727 F.3d 33, 41 (1st Cir.
2013) (because record does not reveal grounds for relief,
Rule 60(b) motion properly denied).
on the foregoing, I recommend the Court deny Plaintiff's
of caution: in Silva v. Thornton, Plaintiff
demonstrated a knack for filing multiple Fed.R.Civ.P. 60
motions. See 18-95 ECF Nos. 13, 14, 16,
Plaintiff is reminded that, while the Order is in place, the
Court will not accept another Fed. R. Civ. P 60 motion in
objection to this report and recommendation must be specific
and must be served and filed with the Clerk of the Court
within fourteen (14) days after its service on the objecting
party. See Fed.R.Civ.P. 72(b)(2); DRI LR Cv 72(d).
Failure to file specific objections in a timely manner
constitutes waiver of the right to review by the district
judge and the right to appeal the Court's decision.
See United States v. Lugo Guerrero, 524 F.3d 5, 14
(1st Cir. 2008); Park Motor Mart, Inc. v. Ford Motor
Co., 616 F.2d 603, 605 (1st Cir. 1980).
 And after the Court restricted his
filing privileges in that case, he submitted documents in
violation of the restrictions, which the Court returned.
18-95 ECF Nos. 24, 25. One purported ...