Sivak v. Perea
- Martinez-Olguin
- 3:24-cv-01502
- 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 his requests to proceed without paying appeal fees.
Lacey Sivak’s related actions were dismissed without prejudice, subject to possible reopening after payment of the full filing fee for each case. Any pending requests to proceed without paying fees on appeal were denied, while the Ninth Circuit retained authority to decide whether to grant that status for the appeals.
What happened
In Sivak v. Perea, Lacey Sivak, an Idaho state prisoner representing himself, filed the related actions against Zahida Perea. The court had denied Sivak permission to proceed without paying filing fees because he had three or more qualifying prior dismissals and had not shown an immediate danger of serious physical injury.
The court ordered Sivak to pay the full filing fee in each case within 14 days. Sivak appealed some of the orders instead of paying. The court concluded that it retained authority over the cases because the Ninth Circuit had not authorized those appeals.
Judge Araceli Martinez-Olguin dismissed each action without prejudice because the filing-fee deadline had passed. The court said Sivak could move to reopen a case after paying that case's full fee, denied any pending request to proceed without paying fees on appeal, terminated the other pending motions as moot, and closed the cases.
The detailed version
- Sivak v. Perea · No. 3:24-cv-01502
- Martinez-Olguin
- July 11, 2024
Background
Lacey Sivak, an Idaho state prisoner who represented himself, filed the above-captioned 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 provision generally bars a prisoner from proceeding without paying fees after 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 that type of danger when he filed the actions, and did not meet the applicable standard.
The court directed Sivak to pay the full filing fee in each case within 14 days or risk dismissal without prejudice. Sivak did not pay the fees. Instead, he appealed some of the orders 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 court of appeals. But for an interlocutory appeal, the notice of appeal is not treated as filed until the court of appeals issues an order permitting the appeal. Because the Ninth Circuit had not granted Sivak permission to bring the appeals, the district court concluded that it retained authority over the actions.
Rulings
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 that action’s full filing fee, and that a separate full fee would be required for each case he wished 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 had denied that status in the district court. It explained that the Ninth Circuit would independently review the record and decide whether to grant permission to proceed without paying fees on appeal. The Clerk was ordered to terminate as moot all other pending motions and close the cases.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.