Sivak v. Perea
- Martinez-Olguin
- 3:24-cv-00787
- 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 appellate fee waivers.
Lacey Sivak’s listed actions were dismissed without prejudice after he did not pay the required filing fees. Any pending requests to proceed without paying fees on appeal were also denied.
What happened
In Sivak v. Perea, Lacey Sivak, an Idaho state prisoner representing himself, filed the listed actions. The court denied his requests to proceed without paying filing fees because he had three or more prior dismissals and did not show imminent danger of serious physical injury.
Sivak appealed some of the court’s fee decisions instead of paying the fees. The court concluded that it still had authority to act because the appeals had not been authorized by the Ninth Circuit. The deadline to pay the filing fees passed.
Judge Araceli Martinez-Olguin dismissed each action without prejudice. Sivak may ask to reopen a case by paying that case’s full filing fee. The court also denied any pending requests 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-00787
- Martinez-Olguin
- July 11, 2024
Background
Lacey Sivak, an Idaho state prisoner who was representing himself, filed the actions listed in the order 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 generally bars a prisoner from proceeding without paying fees after three or more prior actions or appeals were dismissed as frivolous, malicious, or for failure to state a claim, 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 meet the requirements for proceeding without paying the filing fees. The court ordered him to pay the full filing fee within fourteen days or face dismissal without prejudice.
Jurisdiction over the appeals
Sivak did not pay the filing fees. Instead, he appealed some of the fee orders to the Ninth Circuit. The district court explained that an interlocutory appeal generally transfers authority over the issues on appeal to the court of appeals, but a notice of appeal from an interlocutory order is not considered filed until the court of appeals permits the appeal. Because the Ninth Circuit had not granted permission, the district court concluded that it retained authority over these actions.
Ruling
The court DISMISSED WITHOUT PREJUDICE each listed action because Sivak’s deadline to pay the filing fee had passed. The order states that Sivak may file a motion 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’s requests in the district court. The order explains that the Ninth Circuit will independently review the record if Sivak seeks that status there. The Clerk was directed to terminate all other pending motions as moot and close all of the listed cases.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.