Sivak v. Officer of the U.S. District Court
- Martinez-Olguin
- 3:24-cv-01067
- U.S. District Court · Northern District of California
- 3
In Sivak v. Perea, Judge Martinez-Olguin dismissed the cases without prejudice after Sivak did not pay the required filing fees.
Lacey Sivak’s multiple cases against Zahida Perea were dismissed without prejudice after Sivak failed to pay the required filing fees. Any pending request to proceed without paying the appellate filing fee was also denied, while the Ninth Circuit retained authority to independently decide an appellate fee request.
What happened
Lacey Sivak, who represented himself, filed the cases against Zahida Perea. The court had denied Sivak permission to proceed without paying filing fees because he had at least three qualifying 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. Instead, he appealed some of the orders. The appeals did not remove the district court’s authority over the cases because the appeals court had not given permission for those interlocutory appeals.
Judge Araceli Martinez-Olguin dismissed each case without prejudice, meaning Sivak may seek to reopen a case by paying its full filing fee. The court also denied any pending request to proceed without paying the filing fee on appeal, terminated the other pending motions as moot, and closed the cases.
The detailed version
- Sivak v. Officer of the U.S. District Court · No. 3:24-cv-01067
- Martinez-Olguin
- July 11, 2024
Background
The order addresses the multiple actions listed in the caption, including Case Nos. 24-cv-00764-AMO (PR), 24-cv-00765-AMO (PR), 24-cv-00783-AMO (PR), 24-cv-00784-AMO (PR), 24-cv-00785-AMO (PR), 24-cv-00786-AMO (PR), 24-cv-00787-AMO (PR), 24-cv-00788-AMO (PR), 24-cv-01067-AMO (PR), 24-cv-01069-AMO (PR), and the listed 24-cv-01475-AMO (PR) through 24-cv-01511-AMO (PR) actions.
Lacey Sivak, an Idaho state prisoner who represented himself, filed these actions against Zahida Perea. In each action, the court denied Sivak’s request to proceed without paying the filing fee under 28 U.S.C. § 1915(g). That statute bars a prisoner who has had three or more qualifying prior cases dismissed from proceeding without paying the fee unless the prisoner alleges a specific immediate danger of serious physical injury. The court found that Sivak had three or more prior qualifying dismissals, had not alleged the required immediate danger when he filed these actions, and did not meet the standard for proceeding without payment as a prisoner subject to the three-strikes rule.
The court directed Sivak to pay the full filing fee within 14 days or risk dismissal without prejudice. Sivak did not pay the fees. He appealed some of the orders instead. The court explained that an interlocutory appeal generally transfers authority over the appealed issues to the appeals court, but an appeal from an interlocutory order is not treated as filed until the appeals court grants permission to bring it. Because the Ninth Circuit had not granted permission, the district court retained authority over these actions.
Ruling
Judge Araceli Martinez-Olguin dismissed each above-captioned action without prejudice. The order states that, after paying the full filing fee, Sivak may move to reopen any action, but 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 the filing fee on appeal under 28 U.S.C. § 1915(g), for the same reasons it denied that status in the district court. The order explains that the Ninth Circuit will independently review any request to proceed without paying the appellate fee and will decide whether to grant that status. The Clerk was directed to terminate all other pending motions as moot and close all of the cases.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.