Sivak v. Perea
- Martinez-Olguin
- 3:24-cv-02125
- U.S. District Court · Northern District of California
- 4
In Sivak v. Perea, Judge Martinez-Olguin dismissed Sivak’s actions without prejudice after he failed to pay the required filing fees.
Lacey Sivak’s listed actions were dismissed without prejudice after he did not pay the required filing fees. He may seek to reopen an action by paying that action’s full fee; the order also denied pending requests to proceed without paying fees on appeal and closed the cases.
What happened
Lacey Sivak, an Idaho state prisoner representing himself, filed the actions in Sivak v. Perea. The court had denied his requests to proceed without paying filing fees because he had at least three qualifying prior dismissals and had not shown an immediate danger of serious physical injury.
The court gave Sivak fourteen days to pay the full filing fee in each action. He did not pay. Although he appealed some orders, the appeals had not been authorized by the Ninth Circuit, so the district court retained jurisdiction.
Judge Araceli Martinez-Olguin dismissed each action without prejudice. Sivak may ask to reopen an action after paying that action’s full filing fee; the court also denied any pending requests to proceed without paying fees on appeal and terminated the other pending motions as moot.
The detailed version
- Sivak v. Perea · No. 3:24-cv-02125
- Martinez-Olguin
- July 11, 2024
Background
Lacey Sivak, an Idaho state prisoner who represented himself, filed the listed actions against Zahida Perea. The opinion lists numerous case numbers under the same caption. In each case, Sivak asked to proceed without paying the filing fee, a status commonly called proceeding in forma pauperis.
The court denied those requests under the Prison Litigation Reform Act’s “three strikes” rule, 28 U.S.C. § 1915(g). That rule generally prevents a prisoner from proceeding without paying fees when the prisoner has had three or more prior federal actions or appeals dismissed as frivolous, malicious, or for failing to state a claim, unless the prisoner faces an immediate danger of serious physical injury. The court found that Sivak had three or more qualifying prior dismissals, had not alleged a specific immediate danger of serious physical injury when he filed these actions, and did not meet the standard for proceeding without paying the fees.
The court ordered Sivak to pay the full filing fee within fourteen days or risk dismissal without prejudice. Sivak did not pay the fees. Instead, he appealed some of the orders denying his requests to proceed without paying fees.
Jurisdiction over the appeals
The court explained that an appeal generally transfers authority over the appealed issues to the court of appeals. But for an interlocutory appeal—an appeal before the district court has entered a final judgment—the appeal is not treated as filed until the court of appeals permits it. Because the Ninth Circuit had not granted Sivak permission to bring the interlocutory appeals, the district court retained authority over these actions.
Ruling
Because the deadlines to pay the filing fees had passed, the court dismissed each listed action without prejudice. The opinion 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 court also denied any pending motion to proceed without paying fees on appeal under 28 U.S.C. § 1915(g) for the same reasons. It stated that the Ninth Circuit would independently review any request to proceed without paying fees on appeal. Finally, the clerk was directed to terminate all other pending motions in each action 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.