Sivak v. Perea
- Martinez-Olguin
- 3:24-cv-01507
- 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 required under the prisoner three-strikes rule.
Lacey Sivak's above-captioned actions were dismissed without prejudice because he did not pay the required filing fees. He may seek to reopen an action by paying that case's full fee. Any pending request to proceed without paying fees on appeal was denied, while the Ninth Circuit retained authority to decide whether he may receive that status on appeal.
What happened
In Sivak v. Perea, Lacey Sivak, who represented himself, filed the actions while incarcerated. The court denied his requests to proceed without paying filing fees because he had at least three 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 action. He did not pay by the deadline and instead appealed some of the orders. The appeals court had not given permission for those interlocutory appeals, so the district court retained authority to act.
Judge Araceli Martinez-Olguin dismissed each action without prejudice. The court also denied any pending request to proceed without paying fees on appeal, terminated the other pending motions as moot, and closed the cases. Sivak may move to reopen an action after paying its full filing fee.
The detailed version
- Sivak v. Perea · No. 3:24-cv-01507
- Martinez-Olguin
- July 11, 2024
Background
The opinion addresses the numerous actions listed in the caption. Lacey Sivak, an Idaho state prisoner and frequent litigant, represented himself. In each action, he asked to proceed without paying the filing fee, a status commonly called in forma pauperis, or IFP.
The court denied Sivak's IFP requests under 28 U.S.C. § 1915(g). That provision, part of the Prison Litigation Reform Act, generally prevents a prisoner from proceeding without paying fees after three or more prior actions or appeals were dismissed as frivolous, malicious, or for failing to state a claim, unless the prisoner shows imminent danger of serious physical injury. The court found that Sivak had at least three prior dismissals, had not alleged specific imminent danger when he filed the actions, and did not meet the requirements for proceeding without paying the fees.
Appeals and jurisdiction
The court ordered Sivak to pay the full filing fee in each action within 14 days or face dismissal without prejudice. Sivak did not pay the fees and instead appealed some of the orders. The court explained that an interlocutory appeal—an appeal before a final judgment—does not transfer the matter to the appeals court until that court permits the appeal. Because the Ninth Circuit had not granted permission, the district court retained authority over these actions.
Rulings
The court DISMISSED WITHOUT PREJUDICE each above-captioned action. The court stated that Sivak may move to reopen an action after paying that action's 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 to proceed without paying the filing fee on appeal under 28 U.S.C. § 1915(g), for the same reasons it denied Sivak IFP status in the district court. The Ninth Circuit will independently decide whether Sivak may proceed without paying fees on any appeal. The Clerk was ordered to terminate as moot all other pending motions and close all of the cases. The order did not decide the underlying merits of Sivak's claims.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.