Sivak v. Perea
- Martinez-Olguin
- 3:24-cv-02122
- U.S. District Court · Northern District of California
- 4
In Sivak v. Perea, Judge Martinez-Olguin dismissed the listed actions without prejudice after Sivak failed to pay the filing fees.
Lacey Sivak and the listed actions against Zahida Perea; the order also affected the pending motions and any appeal-related requests to proceed without paying filing fees.
What happened
In Sivak v. Perea, Lacey Sivak, an Idaho state prisoner representing himself, filed the listed actions and asked to proceed without paying filing fees. The court denied those requests because Sivak had at least three qualifying prior dismissals and did not show imminent danger of serious physical injury.
The court had ordered Sivak to pay the full filing fee in each action within 14 days. Sivak appealed some orders instead, but the court said it retained authority over the cases because the Ninth Circuit had not permitted those interlocutory appeals. Sivak did not pay the deadlines.
Judge Araceli Martinez-Olguin dismissed each listed action without prejudice. The court said Sivak may move to reopen any action after paying its full filing fee, denied any pending request to proceed without paying the fee on appeal under the same rule, terminated the other pending motions as moot, and closed the cases.
The detailed version
- Sivak v. Perea · No. 3:24-cv-02122
- Martinez-Olguin
- July 11, 2024
Background
Lacey Sivak, identified as an Idaho state prisoner and frequent litigant, filed the listed actions without a lawyer. In each action, he sought permission to proceed without paying the filing fee, commonly called proceeding in forma pauperis.
The court denied those requests under 28 U.S.C. § 1915(g), which bars a prisoner from proceeding without paying filing fees after three or more qualifying prior dismissals, unless the prisoner alleges specific imminent danger of serious physical injury. The court found that Sivak had three or more prior dismissals, had not alleged that kind of imminent danger when he filed the actions, and did not meet the standard for proceeding without payment as a prisoner with multiple prior dismissals.
The court directed Sivak to pay the full filing fee in each action within 14 days or risk dismissal without prejudice. Instead of paying, Sivak appealed some of the orders. The court explained that an interlocutory appeal generally transfers authority over the appealed issues 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 deadlines for paying the filing fees had passed. The court therefore dismissed each listed action without prejudice. Sivak may file a motion to reopen an action after paying its full filing fee, and 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 review any request to proceed without paying the fee on appeal. The Clerk was directed to terminate all other pending motions as moot and close the listed cases.
Effect of the Order
The dismissals were without prejudice, and the court expressly identified a procedure for seeking to reopen the actions after payment of the required fees. The order did not decide the underlying claims described in the actions.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.