Sivak
- Martinez-Olguin
- 3:24-cv-01069
- U.S. District Court · Northern District of California
- 3
In Sivak v. Perea, Judge Martinez-Olguin dismissed the actions without prejudice after Sivak failed to pay filing fees following denial of prisoner fee waivers.
Lacey Sivak, a self-represented Idaho state prisoner, and the listed respondent, Zahida Perea; all of the listed actions were dismissed without prejudice and closed.
What happened
In Sivak v. Perea, Lacey Sivak, an Idaho state prisoner representing himself, filed the listed actions and asked to proceed without paying filing fees. The court denied those requests because Sivak had three or more prior dismissals and had not shown an immediate danger of serious physical injury.
The court gave Sivak 14 days to pay the full filing fee in each case. He did not pay by the deadline and instead appealed some of the orders. The court said those appeals did not transfer jurisdiction because the Ninth Circuit had not yet allowed the interlocutory appeals.
Judge Araceli Martinez-Olguin dismissed each action without prejudice, allowing Sivak to seek reopening after paying the full fee for each case. The court also denied any pending request to proceed without fees on appeal, terminated the other pending motions as moot, and closed the cases.
The detailed version
- Sivak · No. 3:24-cv-01069
- Martinez-Olguin
- July 11, 2024
Background
Lacey Sivak, identified by the court as an Idaho state prisoner and frequent litigant, filed the above-captioned actions without a lawyer. In each action, he sought permission to proceed without paying the filing fee, known as proceeding in forma pauperis (IFP).
The court denied Sivak’s IFP requests under 28 U.S.C. § 1915(g). That provision generally bars a prisoner from proceeding without paying fees when the prisoner has had three or more earlier actions or appeals dismissed as frivolous, malicious, or for failing to state a claim, unless the prisoner alleges an imminent danger of serious physical injury. The court found that Sivak had three or more prior dismissals, had not alleged a specific imminent danger of serious physical injury when he filed, and did not meet the standard for proceeding without paying the fees.
The court directed Sivak to pay the full filing fee within 14 days or risk dismissal without prejudice. Instead of paying, Sivak appealed some of the orders. The court explained that an interlocutory appeal generally transfers jurisdiction over the issues being appealed, but a notice of appeal from an interlocutory order is not treated as filed until the court of appeals permits the appeal. The Ninth Circuit had not granted permission, so the district court retained jurisdiction over these actions.
Rulings
The payment deadline passed without Sivak paying the filing fees. The court therefore dismissed without prejudice each above-captioned action. The order states that Sivak may move to reopen any action after paying the full filing fee, and that a separate full filing fee is required for each case he seeks to reopen and pursue.
The court also denied any pending motion for permission to proceed without paying fees on appeal under 28 U.S.C. § 1915(g), for the same reasons it denied Sivak’s requests in the district court. The court stated that the Ninth Circuit would independently review the record if Sivak asked that court to proceed without fees on appeal and would decide whether to grant that status.
Finally, the Clerk was directed to terminate as moot all other pending motions in each case and close all of the listed cases. The opinion was signed by United States District Judge Araceli Martinez-Olguin.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.