Sivak v. Perea
- Martinez-Olguin
- 3:24-cv-01628
- U.S. District Court · Northern District of California
- 4
In Sivak v. Perea, Judge Martinez-Olguin dismissed the cases without prejudice after Sivak failed to pay the required filing fees.
Lacey Sivak’s listed cases were dismissed without prejudice, and he must pay the full filing fee for each case he wants to ask the court to reopen.
What happened
In Sivak v. Perea, Lacey Sivak, an Idaho state prisoner representing himself, filed the listed cases. The court denied his requests to proceed without paying filing fees because he had at least three qualifying prior dismissals and did not show an immediate danger of serious physical injury.
The court gave Sivak 14 days to pay the full filing fee in each case. He appealed some of the orders instead of paying, but the appeals did not remove the district court’s authority because the Ninth Circuit had not allowed those interlocutory appeals to proceed.
The court dismissed every listed case without prejudice because the payment deadline had passed. Judge Araceli Martinez-Olguin stated that Sivak could ask to reopen a case after paying its full filing fee, and denied any pending request to proceed without paying the fee on appeal.
The detailed version
- Sivak v. Perea · No. 3:24-cv-01628
- Martinez-Olguin
- July 11, 2024
Background
Lacey Sivak, an Idaho state prisoner who represented himself, filed the listed actions against Zahida Perea. In each action, the court denied Sivak’s motion to proceed without paying the filing fee, commonly called proceeding in forma pauperis (IFP). The court relied on 28 U.S.C. § 1915(g), which generally prevents a prisoner from proceeding without paying fees after three or more qualifying prior cases or appeals were dismissed, unless the prisoner alleges an imminent danger of serious physical injury.
The court found that Sivak had at least three prior dismissals and had not alleged a specific imminent danger of serious physical injury when he filed these actions. The court also found that he did not meet the standard for proceeding without payment as a prisoner with many previously dismissed lawsuits. It ordered him to pay the full filing fee in each case within 14 days or risk dismissal without prejudice.
Appeals and jurisdiction
Sivak appealed some of the orders instead of paying the filing fees. Ordinarily, an interlocutory appeal—an appeal taken before the case is finished—can transfer authority over the appealed issues to the court of appeals. But under the procedure involved here, an interlocutory appeal is not treated as filed until the court of appeals permits it. Because the Ninth Circuit had not granted permission, the district court determined that it still had authority over these actions.
Ruling
The court held that the deadlines for paying the filing fees had passed and dismissed each listed action without prejudice. The order states that, after paying the full filing fee, Sivak may file a motion to reopen any listed case. 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 the district court had denied that status. The Clerk was directed to terminate as moot all other pending motions and close all the listed cases. Judge Araceli Martinez-Olguin signed the order.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.