Sivak v. Kenyon et al

INITIAL REVIEW ORDER BY SCREENING JUDGE - 1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
LACEY MARK SIVAK,
Plaintiff,
v.
STEPHEN KENYON and JUDGE
DAVID C. NYE,
Defendants.
Case No. 1:25-cv-00663-DCN
INITIAL REVIEW ORDER BY
SCREENING JUDGE
The Clerk of Court conditionally filed Plaintiff Lacey Mark Sivak’s “Criminal
Complaint” because of Plaintiff’s status as an inmate. A “conditional filing” means that a
plaintiff must obtain authorization from the Court to proceed. Upon screening, the Court
must dismiss claims that are frivolous or malicious, fail to state a claim upon which relief
may be granted, or seek monetary relief from a defendant who is immune from such relief.
28 U.S.C. § 1915A(b).
In addition to the complaint, Plaintiff has also filed a Motion to Disqualify the
undersigned judge.
Having reviewed the record, the Court enters the following Order denying the
Motion to Disqualify and dismissing this case with prejudice.
1. 	Motion to Disqualify
Plaintiff seeks the disqualification of the undersigned judge. Disqualification, or
recusal, of judges is governed by 28 U.S.C. §§ 144 and 455.
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Section 144 provides: “Whenever a party to any proceeding in a district court makes
and files a timely and sufficient affidavit that the judge before whom the matter is pending
has a personal bias or prejudice either against him or in favor of any adverse party, such
judge shall proceed no further therein, but another judge shall be assigned to hear such
proceeding.” A judge subject to a recusal motion may decide the recusal issue, and a
referral to a different judge is unnecessary. United States v. Azhocar, 581 F.2d 735, 738
(9th Cir. 1978).
Under 28 U.S.C. § 455(a), a judge must disqualify himself “in any proceeding in
which his impartiality might reasonably be questioned.”1 Disqualification is not required
where only vague allegations of bias and prejudice are asserted, or where those allegations
arise from the adjudication of claims or cases by the court during the course of litigation.
Such alleged errors are “the basis for appeal, not recusal.” Focus Media, Inc. v. Nat’l
Broadcasting Co. (In re Focus Media, Inc.), 378 F.3d 916, 930 (9th Cir. 2004), superseded
by statute on other grounds as stated in Dep’t of Revenue v. Blixseth, 942 F.3d 1179 (9th
Cir. 2019).
Plaintiff argues that recusal is required because the undersigned is a named
defendant in this case. See Dkt. 4. But Plaintiff is a frequent litigator who routinely names
all of Idaho’s federal district judges as defendants. If the mere fact of being named as a
defendant were sufficient to require recusal, no judge in this Court could preside over any
1 Section 455(b) also requires recusal in certain circumstances, such as where the judge has a personal bias
or prejudice, where the judge has served as a lawyer in the proceeding, where a judge or certain family
members have a financial interest in the proceeding, or where certain relatives of the judge are involved in
the proceeding. None of these circumstances applies to Plaintiff’s request for disqualification.
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of Plaintiff’s cases. See Glick v. Edwards, 803 F.3d 505, 509 (9th Cir. 2015) (adopting the
“rule of necessity,” which holds that, in a case where a litigant sues all the judges of a
district court, a judge need not recuse himself simply because he is identified or named in
the lawsuit; disqualification is not required even though it might be possible to find an
Article III judge “somewhere in the country” who is not named in the suit). Because the
rule of necessity does not require recusal in this situation, and because Plaintiff has not
established any other basis for recusal, the Court will deny the Motion to Disqualify.
2. 	Review of “Criminal Complaint”
A. 	Standards of Law for Screening Complaints
A complaint must contain “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint fails to state a claim for
relief under Rule 8 if the factual assertions in the complaint, taken as true, are insufficient
for the reviewing court plausibly “to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
To state an actionable claim, a plaintiff must provide “enough factual matter (taken
as true) to suggest” that the defendant committed the unlawful act, meaning that sufficient
facts are pled “to raise a reasonable expectation that discovery will reveal evidence of
illegal [activity].” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). “A pleading that
offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action
will not do.’” Iqbal, 556 US. at 678 (quoting Twombly, 550 U.S. at 555).
The Court liberally construes the pleadings to determine whether a case should be
dismissed for a failure to plead sufficient facts to support a cognizable legal theory or for
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the absence of a cognizable legal theory. The critical inquiry is whether a constitutional
claim, however inartfully pleaded, has an arguable factual and legal basis. See Jackson v.
Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (discussing Federal Rule of Civil Procedure
12(b)(6)), superseded by statute on other grounds as stated in Lopez v. Smith, 203 F.3d
1122, 1130 (9th Cir. 2000).
B. 	Discussion
Plaintiff seeks to pursue a federal criminal action against the undersigned judge and
the Clerk of Court.
Plaintiff has been informed on many occasions that, as a private citizen, he cannot
institute a federal criminal action—rather, only the federal government, through the United
States Attorney, can do so. See, e.g., Sivak v. Clerk of Court, No. 1:24-cv-00030-AKB,
2024 WL 1194460, at *2 (D. Idaho March 20, 2024); Sivak v. Docket Clerk, No. 1:24-cv-
00021-DCN, 2024 WL 380880, at *2 (D. Idaho Feb. 1, 2024); Sivak v. Docket Clerk, No.
1:24-cv-00020-BLW (D. Idaho Feb. 4, 2024); Sivak v. Docket Clerk, No. 1:24-cv-00019-
BLW, 2024 WL 1071944, at *2 (D. Idaho Mar. 12, 2024); Sivak v. Winmill, No. 1:23-cv-
00014-AKB, 2023 WL 4600516, at *2 (D. Idaho July 18, 2023); Sivak v. Duggan, No.
1:21-CV-00166-BLW, 2021 WL 1881038, at *1 (D. Idaho Apr. 26, 2021); Sivak v. Doe,
No. 1:19-CV-00234-DCN, 2019 WL 13240389, at *2 (D. Idaho Sept. 11, 2019); Sivak v.
Wilson, No. 1:93-CV-00081-EJL, 2014 WL 12634293, at *2 (D. Idaho June 20, 2014),
aff’d, 646 F. App’x 523 (9th Cir. 2016); Sivak v. Nye, No. 1:24-cv-00193-BLW (D. Idaho
June 26, 2024); Sivak v. Winmill, No. 1:25-cv-00043-DCN (D. Idaho May 22, 2025); Sivak
v. Newhouse, No. 1:25-cv-00045-AKB (D. Idaho April 16, 2025). As a result, Plaintiff is
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well aware that “a private citizen lacks a judicially cognizable interest in the prosecution
or nonprosecution of another,” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973), and
that there is no individual right “to have criminal wrongdoers brought to justice,” Johnson
v. Craft, 673 F. Supp. 191, 193 (D. Miss. 1987).
Accordingly, Plaintiff’s claims are legally frivolous. See Julian v. Crystal Springs
Rehab. Ctr., 884 F.2d 1395, n.2 (9th Cir. 1989) (unpublished) (holding a complaint was
frivolous “because a complete defense [was] obvious from the pleadings and the deficiency
[could not] be cured by amendment”). The complaint is also malicious because Plaintiff
has reasserted claims that he is fully aware have no legal basis. See, e.g., Brinson v.
McKeeman, 992 F. Supp. 897, 912 (D. Tex. 1997) (“It is malicious per se for a pauper to
file successive in forma pauperis suits that duplicate claims made in other pending or
previous lawsuits.”); Scott v. Weinberg, 2007 WL 963990, at *12-13 (D. Wash. March 26,
2007) (malicious suits include those that are “attempts to vex, injure, or harass the
defendants,” that are “plainly abusive of the judicial process or merely repeat[ ] pending or
previously litigated claims,” or that can be characterized as “irresponsible or harassing
litigation”); Thomas v. Commonwealth of Virginia, 2005 WL 1074333, at *5 (D. Va. May
5, 2005) (repetitive lawsuit was frivolous and malicious where plaintiff was told in his
previous suit that he had not stated a claim). Therefore, the complaint is subject to dismissal
under 28 U.S.C. § 1915A.
C. 	Opportunity to Amend
The Court now considers whether to allow Plaintiff an opportunity to amend the
Complaint. Amendments to pleadings are governed by Rule 15 of the Federal Rules of
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Civil Procedure. That rule states that the Court “should freely give leave when justice so
requires.” Fed. R. Civ. P. 15(a)(2). The Ninth Circuit has explained the reasoning behind
allowing the opportunity to amend:
In exercising its discretion with regard to the amendment of
pleadings, a court must be guided by the underlying purpose of
Rule 15—to facilitate decision on the merits rather than on the
pleadings or technicalities. This court has noted on several
occasions that the Supreme Court has instructed the lower
federal courts to heed carefully the command of Rule 15(a) ...
by freely granting leave to amend when justice so requires.
Thus Rule 15’s policy of favoring amendments to pleadings
should be applied with extreme liberality.
Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir. 1987) (internal citations, quotation marks,
and alterations omitted). “In the absence of any apparent or declared reason—such as
undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, futility of amendment, etc.,” it is appropriate for a
court to grant leave to amend. Foman v. Davis, 371 U.S. 178, 182 (1962).
This liberal amendment policy is even more important with respect to pro se
plaintiffs, who generally lack legal training. Courts must liberally construe civil rights
actions filed by pro se litigants so as not to close the courthouse doors to those truly in need
of relief. Eldridge, 832 F.2d at 1135, 1137. A pro se litigant bringing a civil rights suit must
have an opportunity to amend the complaint to overcome deficiencies unless it is clear that
those deficiencies cannot be overcome by amendment. Id. at 1135–36. Although several
factors contribute to the analysis of whether a plaintiff should be allowed an opportunity
to amend, futility alone can justify denying such an opportunity. Johnson v. Buckley, 356
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F.3d 1067, 1077 (9th Cir. 2004).
The Court concludes that amendment in this case would be futile because it is clear
from the face of the complaint that Plaintiff’s claims are frivolous and malicious.
Therefore, the Court will dismiss the complaint without leave to amend.
ORDER
IT IS ORDERED:
1. 	Plaintiff’s Motion to Disqualify (Dkt. 4) is DENIED.
2. 	This case is DISMISSED with prejudice as frivolous and malicious. See 28
U.S.C. § 1915A(b).
DATED: February 4, 2026
_________________________
David C. Nye
U.S. District Court Judge
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