United States District Court, D. Maine
RECOMMENDED DECISION ON MOTION TO REOPEN
C. NIVISON U.S. MAGISTRATE JUDGE
matter is before the Court on a filing of Plaintiff, which
filing the Court construed as a motion to reopen the case.
(ECF No. 13). As explained below, following a review of the
pleadings, and after consideration of the filings, I
recommend the Court deny Plaintiff's motion.
September 13, 2017, Plaintiff filed this action against
Defendants. (ECF No. 1.) On September 15, 2017, the Court
issued an Order that required Plaintiff to pay the filing fee
or file an Application to Proceed In Forma Pauperis by
October 6, 2017. (ECF No. 2.) Because Plaintiff did not
respond to the Court's order, on October 13, 2017, the
Court ordered Plaintiff to show cause, by October 27, 2017,
as to why he had not complied with the Court's order.
(ECF No. 3.) On November 6, 2017, Plaintiff filed a Motion
for Leave to Proceed In Forma Pauperis. (ECF No. 4.) The
Court terminated the Order to Show Cause, granted
Plaintiff's motion, and advised Plaintiff that he must
inform the Court by December 15, 2018, as to his intent to
proceed. (Order, ECF No. 5.) Because Plaintiff failed to
inform the Court of his intent to proceed, the Court ordered
Plaintiff to show cause by December 27, 2017 as to why he had
not complied with the Court's Order. (ECF No. 6.) When
Plaintiff failed to comply with the Order to Show Cause, on
January 1, 2018, I recommended that the Court dismiss the
matter. (ECF No. 8). The Court affirmed the Report and
Recommended Decision on February 9, 2018 (ECF No. 10), and
Judgment entered on the same date. (ECF No. 11). Plaintiff
filed the motion to reopen on May 28, 2019.
Rule of Civil Procedure 60 governs the Court's
consideration of Plaintiff's request for relief from
judgment. Rule 60(b) authorizes the Court to relieve a party
from a judgment on the grounds of “(1) mistake,
inadvertence, surprise, or excusable neglect, (2) newly
discovered evidence that, with reasonable diligence, could
not have been discovered in time to move for a new trial
under Rule 59(b), (3) fraud (whether previously called
intrinsic or extrinsic), misrepresentation, or misconduct by
an opposing party, (4) the judgment is void, (5) the judgment
has been satisfied; it is based on an earlier judgment that
has been reversed or vacated; or applying it prospectively is
no longer equitable; or (6) any other reason that justifies
relief.” A party must file the motion within a
reasonable time, and for grounds 1 through 3, the party must
file the motion within one year of the judgment. Fed.R.Civ.P.
Plaintiff did not file the motion within a year of the entry
of judgment. In addition, Plaintiff has not asserted any
facts that could reasonably be construed as a mistake, newly
discovered evidence, or fraud as grounds for relief.
Furthermore, Plaintiff has not argued that the Judgment is
void, that the Judgment has been satisfied, or that a related
judgment has been reversed or vacated. Finally,
Plaintiff's contentions do not constitute any
“other reason that justifies
relief.” Plaintiff, therefore, has not asserted
facts that would support relief from judgment under Rule 60.
Plaintiff's filing reflects, Plaintiff has recently filed
a number of documents in connection with dismissed cases.
(ECF Nos. 13-1 - 13-6.) In addition, within the last two
years, the Court has dismissed three other cases in which
Plaintiff has filed motions to reopen,  and within the
last ten years the Court has dismissed or entered summary
judgment against Plaintiff in more than ten other
cases. None of Plaintiff's motions to reopen
have merit. Given Plaintiff's many filings that lack
merit, an order informing Plaintiff that filing restrictions
“may be in the offing” in accordance with Cok
v. Family Court of Rhode Island, 985 F.2d 32, 35 (1st
Cir. 1993) is warranted.
on the foregoing analysis, I recommend the Court deny
Plaintiff's motion to reopen the case. (ECF No. 13.) I
also recommend the Court issue an order informing Plaintiff
that filing restrictions “may be in the offing”
in accordance with Cok v. Family Court of Rhode
Island, 985 F.2d 32, 35 (1st Cir. 1993).
may file objections to those specified portions of a
magistrate judge's report or proposed findings or
recommended decisions entered pursuant to 28 U.S.C. §
636(b)(1)(B) for which de novo review by the district court
is sought, together with a supporting memorandum within
fourteen (14) days of being served with a copy thereof. A
responsive memorandum shall be filed within fourteen (14)
days after the filing of the objection.
to file a timely objection shall constitute a waiver of the
right to de novo review by the district court and to ...