Sivak v. Fletcher

Opinion

1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 LACEY SIVAK, Case No. 23-cv-06014-AMO (PR)

6 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION TO REOPEN; REOPENING 7 v. CASE; AND DIRECTING PLAINTIFF TO PAY THE FULL FILING FEE OR 8 WILLIAM A. FLETCHER, et al., FILE A COMPLETED IN FORMA PAUPERIS APPLICATION Defendants. 9 Re: Dkt. No. 17

10 I. INTRODUCTION 11 This closed federal civil rights action was filed by Lacey Sivak, a state prisoner who is 12 representing himself. On February 5, 2024, the Court concluded that dismissal was merited 13 because Sivak failed to submit a timely application for leave to proceed in forma pauperis (“IFP”) 14 or pay the full filing by the twenty-eight-day deadline as set by the notice sent by the Clerk of the 15 Court on November 20, 2023. Dkt. 15 at 1. Sivak has filed a motion to reopen, which the Court 16 construes as a motion for relief from the Court’s February 5 Order under Rule 60(b) of the Federal 17 Rules of Civil Procedure. Dkt. 17. For the reasons outlined below, the Court determines that the 18 motion for relief should be GRANTED. 19 II. DISCUSSION 20 Where the district court’s ruling has resulted in a final judgment or order, a party make 21 seek relief from that final judgment or order under Rule 60(b). Rule 60(b) provides that a court 22 may grant the motion where one or more of the following is shown: (1) mistake, inadvertence, 23 surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not 24 have been discovered before the court’s decision; (3) fraud by the adverse party; (4) the judgment 25 is void; (5) the judgment has been satisfied; (6) any other reason justifying relief. Fed. R. Civ. P. 26 60(b); School Dist. 1J v. ACandS Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). 27 Sivak contends that he did not receive a copy of the Clerk’s November 20, 2023 notice 1 informing him that his action could not go forward until he paid the full filing fee or filed a 2 || completed IFP application by the twenty-eight-day deadline. Dkt. 17 at 3-6. As mentioned above, 3 || the Court had dismissed this action because Sivak failed to timely respond to the Clerk’s 4 November 20, 2023 notice. See Dkt. 15. The record now reveals that Sivak’s failure to respond to 5 the Clerk’s notice was because he never received such notice. See Dkt. 17 at 3-6. Pursuant to 6 Rule 60(b)(1), the Court finds that such allegations are sufficient to relieve Sivak from its Order 7 dismissing the case, as well as the Judgment entered against him. See Fed. R. Civ. P. 60(b)(1). 8 Accordingly, the instant motion for relief from an order is GRANTED. However, before 9 the Court can proceed to review this action, Sivak is hereby ORDERED to pay the filing fee in 10 || full or to file a completed application to proceed IFP using the enclosed form, as directed below. 11 || 11. CONCLUSION 12 For the foregoing reasons, the Court orders as follows: 5 13 1. Sivak’s motion to reopen, which has been construed as a motion for relief from an 14 order, is GRANTED. Dkt. 17. The Clerk shall REOPEN this action, VACATE the Court’s 3 15 February 5, 2024 Order of Dismissal Without Prejudice as well as the Judgment entered against a 16 || him, and REINSTATE the petition for writ of mandamus filed on November 20, 2023. 3 17 2. Sivak is ORDERED to pay the filing fee in full or to file a completed application 18 to proceed IFP using the enclosed form. Sivak shall do so within twenty-eight (28) days of the 19 || date of this Order. Failure to pay the full filing fee or submit a completed IFP application by 20 || the twenty-eight-day deadline shall result in the dismissal of this action without prejudice. 21 3. The Clerk shall send Sivak a blank prisoner IFP application along with a copy of 22 || this Order. 23 4. This Order terminates Docket No. 17. 24 IT IS SO ORDERED. 25 Dated: June 11, 2024 26 □ Cnacek Melb □ ARACELI MARTINEZ-OLGUIN 28 United States District Judge