Sivak v. Perea
- Martinez-Olguin
- 3:24-cv-01627
- U.S. District Court · Northern District of California
- 4
In Sivak v. Perea, Judge Martinez-Olguin dismissed the actions without prejudice after Sivak failed to pay the required filing fees.
Lacey Sivak's listed actions were dismissed without prejudice because he did not pay the required filing fees. He may seek to reopen an action by paying that action's full fee.
What happened
In Sivak v. Perea, Lacey Sivak, an Idaho state prisoner representing himself, brought the listed actions against Zahida Perea. 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 an immediate danger of serious physical injury.
The court gave Sivak 14 days to pay the full filing fee in each action. He did not pay, and instead appealed some of the fee orders. The court concluded that it still had authority to act because the Ninth Circuit had not allowed those interlocutory appeals.
Judge Araceli Martinez-Olguin dismissed every listed action without prejudice. Sivak may ask to reopen an action after paying its full filing fee; the order also denied any pending request to proceed without paying the filing fee on appeal and closed the cases.
The detailed version
- Sivak v. Perea · No. 3:24-cv-01627
- Martinez-Olguin
- July 11, 2024
Background
Lacey Sivak, identified as an Idaho state prisoner and a frequent litigant, filed the listed actions while representing himself. The court had denied his requests to proceed without paying filing fees under 28 U.S.C. § 1915(g). That provision generally prevents a prisoner from proceeding without paying fees after three or more prior qualifying cases or appeals were dismissed as frivolous, malicious, or for failure to state a claim, unless the prisoner shows an immediate danger of serious physical injury.
The court determined in each action that Sivak had at least three prior dismissals, had not alleged a specific immediate danger of serious physical injury when he filed, and did not meet the standard for proceeding without paying the fees. The court ordered him to pay the full filing fee within 14 days or face dismissal without prejudice.
Appeals and jurisdiction
Sivak appealed some of the fee orders instead of paying the fees. The court explained that an interlocutory appeal—an appeal before the case is finished—generally transfers authority over the appealed issues to the Court of Appeals. But under the rule discussed in the order, an interlocutory appeal is not treated as filed until the Court of Appeals permits it. Because the Ninth Circuit had not granted permission for Sivak's appeals, the district court concluded that it retained authority over the actions.
Ruling
The deadline to pay the filing fees had passed. Judge Araceli Martinez-Olguin ordered that each listed action be dismissed without prejudice. The order states that Sivak may file a motion to reopen any action after paying its full filing fee, and that a separate full filing fee is required for each action he seeks to reopen and pursue.
The order also states that any pending motion for permission to proceed without paying the filing fee on appeal is denied under 28 U.S.C. § 1915(g) for the same reasons. The Ninth Circuit would independently decide whether to grant that status for an appeal. The clerk was directed to terminate the other pending motions as moot and close all the listed cases.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.