Sivak v. Fletcher

Background

Lacey Sivak filed a federal civil-rights action and represented himself. The court had dismissed the action on February 5, 2024, because Sivak had not timely paid the full filing fee or submitted a completed application to proceed without paying the fee. The deadline came from a notice the Clerk sent on November 20, 2023. The earlier dismissal was without prejudice, and a judgment had also been entered.

Sivak moved to reopen the case. He said that he had never received the Clerk’s November 20 notice. The court construed his motion as a request for relief from the earlier order and judgment under Rule 60(b) of the Federal Rules of Civil Procedure. Rule 60(b)(1) allows relief for reasons including mistake, inadvertence, surprise, or excusable neglect.

Court’s analysis

The court found that the record showed Sivak failed to respond because he never received the Clerk’s notice. It concluded that these allegations were sufficient under Rule 60(b)(1) to relieve Sivak from the order dismissing the case and from the judgment.

The court stated that it could not proceed to review the action until Sivak either paid the filing fee in full or filed a completed application to proceed without paying the fee.

Ruling and required next step

The court granted Sivak’s motion to reopen, which it had construed as a motion for relief from an order. It ordered the Clerk to reopen the action, vacated the February 5, 2024 order of dismissal without prejudice and the judgment, and reinstated the petition for a writ of mandamus filed on November 20, 2023.

Sivak must pay the filing fee in full or file a completed application to proceed without paying the fee within 28 days of the order. The court ordered that failure to do so will result in dismissal of the action without prejudice. The Clerk was also ordered to send Sivak a blank prisoner application and a copy of the order.