Sivak v. Perea
- Martinez-Olguin
- 3:24-cv-01477
- 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 and denied pending appeal-fee requests.
Lacey Sivak and the multiple actions he filed against Zahida Perea; the order also addressed Sivak’s requests to appeal without paying filing fees.
What happened
In Sivak v. Perea, Lacey Sivak, who represented himself, filed the listed actions while imprisoned in Idaho. 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 risk of serious physical injury.
The court had given Sivak 14 days to pay the full filing fee in each action. He did not pay, and the deadline passed. Although he appealed some earlier orders, the appeals court had not authorized those appeals, so the district court retained authority over the actions.
Judge Araceli Martinez-Olguin dismissed each action without prejudice, allowing Sivak to seek reopening by paying the full filing fee for each case. The judge also denied any pending requests to appeal without paying fees, treated other pending motions as moot, and ordered the cases closed.
The detailed version
- Sivak v. Perea · No. 3:24-cv-01477
- Martinez-Olguin
- July 11, 2024
Background
Lacey Sivak, an Idaho state prisoner who represented himself, filed the above-captioned actions against Zahida Perea. The opinion lists multiple related case numbers. In each case, the court denied Sivak’s request to proceed without paying the filing fee under 28 U.S.C. § 1915(g). That provision bars a prisoner from proceeding without paying when the prisoner has had three or more qualifying prior dismissals, unless the prisoner alleges a specific 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 the actions, and did not meet the standard for proceeding without paying fees as a prisoner with multiple prior frivolous lawsuits. The court directed him to pay the full filing fee within 14 days or face dismissal without prejudice.
Appeals and Jurisdiction
Sivak appealed some of the orders to the United States Court of Appeals for the Ninth Circuit instead of paying the filing fees. The district court explained that an interlocutory appeal generally transfers authority over the appealed issues to the appeals court, but a notice of appeal from an interlocutory order is not treated as filed until the appeals court permits the appeal. Because the Ninth Circuit had not granted permission, the district court concluded that it retained authority over these actions.
Ruling
The court dismissed each above-captioned action without prejudice because Sivak’s deadline to pay the filing fee had passed. The court stated that Sivak could move to reopen any action after paying the full filing fee, and that a separate full filing fee would be required for each case he wished to reopen and pursue.
The court also denied any pending motion for permission to appeal without paying fees under 28 U.S.C. § 1915(g), for the same reasons it had denied that status in the district court. It explained that the Ninth Circuit would independently review any request to proceed without paying fees on appeal and would decide whether to grant that request. The clerk was directed to terminate all other pending motions as moot and close the cases. Judge Araceli Martinez-Olguin signed the order on July 11, 2024.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.