Sivak v. Perea
- Martinez-Olguin
- 3:24-cv-01508
- U.S. District Court · Northern District of California
- 3
In Sivak v. Perea, Judge Martinez-Olguin dismissed each action without prejudice for nonpayment and denied pending requests to appeal without paying filing fees.
The order affects Lacey Sivak and the multiple related actions he filed against Zahida Perea. The actions were dismissed without prejudice for failure to pay the required filing fees, and pending requests to proceed without paying appellate fees were denied.
What happened
Lacey Sivak, an Idaho state prisoner representing himself, filed the actions against Zahida 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 imminent danger of serious physical injury.
The court gave Sivak 14 days to pay the full filing fee in each case. He did not pay by the deadline and instead appealed some of the orders. The court concluded it still had authority to act because the Ninth Circuit had not granted permission for those interlocutory appeals.
Judge Araceli Martinez-Olguin dismissed each action without prejudice. The court also denied any pending requests 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-01508
- Martinez-Olguin
- July 11, 2024
Background
Lacey Sivak, an Idaho state prisoner who represented himself, filed the above-captioned actions against Zahida Perea. In each action, the court denied Sivak's request to proceed without paying the filing fee under 28 U.S.C. § 1915(g). That provision, part of the Prison Litigation Reform Act, generally prevents a prisoner from proceeding without paying fees after three or more qualifying prior dismissals, unless the prisoner alleges imminent danger of serious physical injury.
The court found that Sivak had at least three prior dismissals, had not alleged specific imminent danger of serious physical injury when he filed the actions, and did not meet the requirements for proceeding without paying the filing fee. The court ordered him to pay the full filing fee within 14 days or risk dismissal without prejudice.
Appeals and jurisdiction
Sivak did not pay the filing fees by the deadline. Instead, he appealed some of the orders to the Ninth Circuit. The court explained that an interlocutory appeal generally transfers authority over the issues on appeal 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 to appeal, the district court concluded that it retained authority over these actions.
Ruling
The court DISMISSED WITHOUT PREJUDICE each above-captioned action. It stated that Sivak could move to reopen an action after paying its full filing fee, and that a separate full filing fee would be required for each case he wanted to reopen and pursue.
The court also DENIED any pending request for leave to proceed without paying the filing fee on appeal under 28 U.S.C. § 1915(g), for the same reasons it had denied Sivak's requests in the district court. The court explained that the Ninth Circuit would independently review the record if Sivak sought that status there and would decide whether to grant it.
Finally, the Clerk was ordered to terminate as moot all other pending motions in each case and close all of the cases.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.