Sivak v. Perea
- Martinez-Olguin
- 3:24-cv-02991
- 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 filing fees and denied appellate fee-waiver motions.
Lacey Sivak’s listed actions were dismissed without prejudice and closed; he may seek to reopen an action by paying that action’s full filing fee.
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 did not show 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 by the deadline, and the Ninth Circuit had not granted permission for his interlocutory appeals. The court therefore dismissed each action without prejudice, meaning Sivak may ask to reopen a case after paying its full filing fee.
Judge Araceli Martinez-Olguin also denied any pending request to proceed without paying the filing fee on appeal, terminated the other pending motions as moot, and closed the cases.
The detailed version
- Sivak v. Perea · No. 3:24-cv-02991
- Martinez-Olguin
- July 11, 2024
Background
Lacey Sivak, an Idaho state prisoner who represented himself, filed the listed actions against Zahida Perea. The opinion identifies multiple related case numbers. In each action, Sivak asked to proceed without paying the filing fee, a status commonly called proceeding in forma pauperis.
The court had denied those requests under 28 U.S.C. § 1915(g). That statute generally prevents a prisoner from proceeding without paying fees after three or more qualifying prior dismissals, unless the prisoner alleges that he faces an immediate danger of serious physical injury. The court found that Sivak had three or more prior dismissals, had not alleged a specific immediate danger when he filed the actions, and did not meet the standard for proceeding without payment as a prisoner with three qualifying dismissals.
Court’s jurisdiction during the appeals
The court had directed Sivak to pay the full filing fee 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 appeals court, but an appeal from an interlocutory order is not considered filed until the appeals court permits the appeal. Because the Ninth Circuit had not granted Sivak permission to appeal, the district court retained authority over these actions.
Rulings
The deadline to pay the filing fee had passed. The court dismissed each listed action without prejudice. It stated that Sivak may move to reopen any action after paying the 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 for leave to proceed without paying the filing fee on appeal under § 1915(g) for the same reasons. It explained that the Ninth Circuit would independently review the record if Sivak asked that court for permission to proceed without paying the appellate fee. The clerk was directed to terminate all other pending motions in each action as moot and close all of the listed cases.
Classification
This is a procedural order. The court dismissed the actions because Sivak did not pay the required filing fees after being denied permission to proceed without payment; it did not decide the underlying claims.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.