Sivak v. Parea
- Martinez-Olguin
- 3:24-cv-02246
- 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 required filing fees.
Lacey Sivak's multiple actions against Zahida Perea were dismissed without prejudice. Sivak may seek to reopen an action after paying that action's full filing fee.
What happened
In Sivak v. Perea, Lacey Sivak filed multiple actions while representing himself. The court had denied his requests to proceed without paying filing fees because he had three or more 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. Instead of paying, he appealed some of the orders. The court held that those appeals did not transfer jurisdiction because the Ninth Circuit had not permitted the interlocutory appeals.
Because the payment deadline had passed, Judge Araceli Martinez-Olguin dismissed each action without prejudice. Sivak may move to reopen a case after paying its full filing fee; the court also denied any pending request to proceed without paying fees on appeal and closed the cases.
The detailed version
- Sivak v. Parea · No. 3:24-cv-02246
- Martinez-Olguin
- July 11, 2024
Background
Lacey Sivak, an Idaho state prisoner, filed the above-captioned actions while representing himself. In each case, the court denied his request to proceed without paying the filing fee under 28 U.S.C. § 1915(g). That statute generally prevents a prisoner from proceeding without paying filing fees after three or more prior actions or appeals were dismissed as frivolous, malicious, or for failing to state a claim, unless the prisoner alleges 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 him to pay the full filing fee in each case within 14 days or face dismissal without prejudice.
Appeals and jurisdiction
Sivak appealed some of the orders instead of paying the filing fees. The court explained that an interlocutory appeal generally transfers jurisdiction over the appealed issues to the court of appeals, but a notice of appeal from an interlocutory order is not treated as filed until the court of appeals permits the appeal. Because the Ninth Circuit had not granted permission for these appeals, the district court retained jurisdiction. The court also noted that the Ninth Circuit had dismissed many of Sivak’s similar interlocutory appeals as too insubstantial to warrant further review.
Ruling
The deadline to pay the filing fee had passed. The court therefore dismissed each above-captioned action without prejudice. Sivak may file a motion to reopen any case after paying that case’s full filing fee, and a separate full filing fee is required for each case he wants 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 Ninth Circuit would independently decide whether Sivak could proceed without paying fees on an appeal. The Clerk was directed to terminate as moot all other pending motions in each case and close all of the cases.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.