Sivak v. Parea

Background

Lacey Sivak, an Idaho state prisoner who was representing himself, filed the six cases listed in the order. In each case, the court denied his request to proceed without paying the filing fee under 28 U.S.C. § 1915(g). That provision generally prevents a prisoner who has had three or more qualifying prior cases dismissed from proceeding without paying the fee, unless the prisoner alleges a specific imminent danger of serious physical injury at the time of filing. The court found that Sivak had at least three prior dismissals and had not met the imminent-danger exception.

The court ordered Sivak to pay the full filing fee in each case within 14 days or risk dismissal without prejudice. The payment deadlines passed without payment.

Rulings

The court dismissed each of the six actions without prejudice. It stated that Sivak could pay the full filing fee and file a motion to reopen any case, and that a separate full filing fee would be required for each case he wanted to reopen and pursue.

Sivak had also filed motions seeking reconsideration of the denials of his requests to proceed without paying fees. The court explained that the local rule required him first to obtain permission to file a reconsideration motion by showing a qualifying change in facts or law, newly emerged material facts or a change in law, or a material fact the court had failed to consider. Because Sivak had not first sought permission, the court stated that it could deny the motions on that basis. It also found that the motions lacked merit. In particular, the court concluded that the imminent danger must be assessed when the complaint is filed, and that Sivak’s allegations did not provide grounds for reconsideration. To the extent the pending motions were requests for reconsideration, the court denied them and reaffirmed the earlier denials of fee-free status.

The court denied any pending requests to proceed without paying fees on appeal under § 1915(g) for the same reasons. It noted that the Court of Appeals for the Ninth Circuit would independently review any request to proceed without paying fees on appeal. The clerk was ordered to terminate all other pending motions as moot, close the six cases, and return without filing any further documents Sivak submitted in the closed cases.

Classification

This was a procedural order. The court dismissed the cases because Sivak did not pay the required filing fees after being denied permission to proceed without payment; it did not decide the underlying claims.