Sivak v. Perea
- Martinez-Olguin
- 3:24-cv-00784
- 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 and the above-captioned actions.
What happened
Lacey Sivak, who represented himself, filed the above-captioned actions. The court had denied his requests to proceed without paying filing fees because he had three or more qualifying prior dismissals and had not shown imminent danger of serious physical injury.
The court gave Sivak 14 days to pay the full filing fee in each case, but he did not do so. Although he appealed some orders, the court said it retained jurisdiction because the Ninth Circuit had not granted permission for those interlocutory appeals.
Judge Araceli Martinez-Olguin dismissed each action without prejudice. Sivak may move to reopen a case after paying its full filing fee; any pending request to proceed without fees on appeal was denied, other pending motions were terminated as moot, and the cases were closed.
The detailed version
- Sivak v. Perea · No. 3:24-cv-00784
- Martinez-Olguin
- July 11, 2024
Background
Lacey Sivak filed the above-captioned actions while incarcerated and represented himself. In each case, the court previously denied his request to proceed without paying the filing fee under 28 U.S.C. § 1915(g). That provision, part of the Prison Litigation Reform Act, generally bars a prisoner from proceeding without fees after three or more qualifying prior dismissals unless the prisoner alleges imminent danger of serious physical injury.
The court found that Sivak had three or more prior dismissals, had not alleged specific imminent danger of serious physical injury when he filed the actions, and did not satisfy the standard for proceeding without payment as a prisoner with multiple qualifying dismissals. The court directed him to pay the full filing fee within 14 days or risk dismissal without prejudice.
Jurisdiction and Filing-Fee Deadline
Sivak did not pay the filing fees. He appealed some of the orders denying his requests to proceed without fees. The court explained that an interlocutory appeal generally transfers jurisdiction over the issues on appeal to the court of appeals, but a notice of appeal from an interlocutory order is not treated as filed until the court of appeals permits the appeal. Because the Ninth Circuit had not granted permission to appeal, the district court concluded that it retained jurisdiction. The deadline to pay the filing fee had passed in each case.
Rulings
The court ordered that each above-captioned action be dismissed without prejudice. Sivak may file a motion to reopen any case after paying that case’s full filing fee, and a full filing fee is required for each case he seeks to reopen and pursue.
The court also denied any pending motion for leave to proceed without fees on appeal under 28 U.S.C. § 1915(g), for the same reasons the district court had denied that status. The court stated that the Ninth Circuit would independently review the record if Sivak sought to proceed without fees there and would decide whether to grant that status. The Clerk was ordered to terminate as moot all other pending motions in each case and close all of the cases.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.