Sivak v. Parea

Background

Lacey Sivak, identified by the court as an Idaho state prisoner and frequent litigant, filed the six above-captioned actions representing himself. In each case, he asked to proceed without paying the filing fee, a status known as proceeding in forma pauperis (IFP).

The court had denied those requests under 28 U.S.C. § 1915(g), which limits a prisoner’s ability to proceed without prepaying fees after three or more qualifying prior dismissals. The court found that Sivak had not alleged a specific imminent danger of serious physical injury when he filed the actions. The court directed him to pay the full filing fee within fourteen days or risk dismissal without prejudice. The payment deadlines passed.

Reconsideration requests

Sivak filed motions seeking reconsideration of the denials of IFP status. The court stated that, under Northern District of California Civil Local Rule 7-9, he first had to obtain permission to file a reconsideration motion by satisfying specified requirements concerning a material difference in fact or law, newly emerged material facts or a change in law, or the court’s failure to consider material facts previously presented. The court found that Sivak had not first sought that permission and stated that it could deny the motions on that basis.

The court also considered the substance of the motions and found no basis for reconsideration. Sivak appeared to argue that he qualified for the imminent-danger exception in § 1915(g). The court held that imminent danger must be assessed when the complaint is filed and that conditions existing at an earlier or later time were not relevant to that determination. The court therefore reaffirmed its denial of IFP status and, to the extent the pending motions were requests for reconsideration, DENIED them.

Rulings and effect

Judge Araceli Martinez-Olguin ordered that each of the six actions be DISMISSED without prejudice. The court stated that Sivak may file a motion to reopen any action after paying that action’s full filing fee, and that a separate full fee is required for each case he seeks to reopen.

The court also DENIED any pending request to proceed without paying the filing fee on appeal under § 1915(g), for the same reasons it denied IFP status in the district court. It explained that the Court of Appeals for the Ninth Circuit would independently review any appellate request for IFP status. The clerk was directed to terminate as moot all other pending motions, close the cases, and return without filing any additional documents Sivak submitted in the closed cases.