Sivak v. Parea
3:24-cv-02123
N.D. Cal.Jul 11, 2024Background
- Lacey Sivak, an Idaho state prisoner and frequent filer, brought multiple pro se actions in federal court.
- Sivak has previously had at least three cases dismissed as frivolous, malicious, or failing to state a claim, making him a “three-striker” under 28 U.S.C. § 1915(g).
- Sivak moved for leave to proceed in forma pauperis (IFP) in each action, which the court denied due to his prior strikes and failure to allege imminent danger of serious physical injury.
- The court directed Sivak to pay the full filing fee for each case within fourteen days or face dismissal without prejudice.
- Instead of paying, Sivak appealed some of the orders, but the Ninth Circuit had not permitted interlocutory appeals as of the order date.
- The deadline to pay filing fees passed without payment in any of the cases.
Issues
| Issue | Sivak's Argument | Perea's Argument | Held |
|---|---|---|---|
| Eligibility for IFP despite prior dismissals | Sivak sought IFP without showing imminent danger | Opposed IFP, cited Sivak's three-strike status | Court denied IFP; Sivak did not meet § 1915(g) exception |
| Effect of interlocutory appeal on district court jurisdiction | Implied jurisdiction should be with appellate court due to appeal | Argues district court retains jurisdiction unless appeal permitted | Court retains jurisdiction; appeal not yet permitted |
| Dismissal for nonpayment of filing fee | Implicitly opposed dismissal, pursued appeals instead of payment | Sought dismissal for failure to pay filing fee | Actions dismissed without prejudice for nonpayment |
| IFP status on appeal | Requested IFP status for appeal | Objected, citing same three-strike issue | IFP status on appeal denied; Ninth Circuit will review if Sivak seeks IFP |
Key Cases Cited
- Ray v. Lara, 31 F.4th 692 (9th Cir. 2022) (court may sua sponte deny prisoner IFP status at screening on finding three prior dismissals)
- City of Los Angeles, Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882 (9th Cir. 2001) (district court retains jurisdiction over issues until Court of Appeals grants permission for interlocutory appeal)
- Griggs v. Provident Consumer Disc. Co., 459 U.S. 56 (1982) (notice of appeal generally divests district court of jurisdiction, but only once appeal permitted)