Sivak v. Sung
- Martinez-Olguin
- 3:23-cv-05996
- U.S. District Court · Northern District of California
- 3
In Sivak v. Sung, Judge Martinez-Olguin dismissed seven cases without prejudice after Sivak did not pay required filing fees and denied pending appeal fee requests.
Lacey Sivak’s seven federal actions and any pending requests to proceed without paying fees for his appeals were affected. Each action was dismissed without prejudice, and the appeal-related fee requests were denied.
What happened
In Sivak v. Sung, Lacey Sivak, who represented himself, brought seven actions. The court had denied his requests to proceed without paying filing fees because he had at least three prior dismissals and had not shown an immediate danger of serious physical injury.
The court had given Sivak 14 days to pay the full filing fee in each case. Instead, he appealed. The court determined that it still had authority to act because the appeals were not yet authorized by the Ninth Circuit, and Sivak’s payment deadlines had passed.
Judge Martinez-Olguin dismissed each action without prejudice, meaning Sivak may ask to reopen a case after paying its full filing fee. The judge also denied any pending requests to proceed without paying fees for the appeals and ordered the cases closed.
The detailed version
- Sivak v. Sung · No. 3:23-cv-05996
- Martinez-Olguin
- July 11, 2024
Background
Lacey Sivak, identified in the opinion as an Idaho state prisoner and frequent litigant, filed the seven actions while representing himself. In each case, the court denied his request to proceed without paying the filing fee under 28 U.S.C. § 1915(g). The court found that Sivak had three or more prior dismissals, had not alleged a specific immediate danger of serious physical injury when he filed the action, and did not satisfy the standard for proceeding without paying the fee as a prisoner with three or more qualifying dismissals.
The court directed Sivak to pay the full filing fee within 14 days or face dismissal without prejudice. Sivak did not pay the fees. Instead, he appealed to the Ninth Circuit.
Jurisdiction over the cases
The court explained that an interlocutory appeal generally transfers authority over the issues being appealed to the appeals court. But an appeal from an interlocutory order is not treated as filed until the appeals court permits the appeal. Because the Ninth Circuit had not granted Sivak permission to bring these interlocutory appeals, the district court concluded that it retained authority over the actions.
Rulings
The court held that the deadlines for paying the filing fees had passed. It therefore dismissed each of the seven actions without prejudice. The court stated that Sivak could move to reopen any case after paying that case’s full filing fee, and that a separate full filing fee would be required for each case he wanted to reopen and pursue.
The court also denied any pending motion to proceed without paying the filing fee for an appeal under 28 U.S.C. § 1915(g), for the same reasons it had denied that status in the district court. The court explained that the Ninth Circuit would independently review the record if Sivak requested that status there. It further stated that, if the Ninth Circuit denied the request, Sivak would still be required to pay the entire filing fee and show why the appeal should not be dismissed as frivolous.
The clerk was ordered to terminate all other pending motions as moot and close all seven cases.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.