Sivak v. Fletcher

3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA LACEY SIVAK, Case No. 23-cv-06013-AMO (PR) 7 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION TO REOPEN; REOPENING 8 v. CASE; AND DIRECTING PLAINTIFF TO PAY THE FULL FILING FEE OR WILLIAM A. FLETCHER, et al., FILE A COMPLETED IN FORMA PAUPERIS APPLICATION Defendants.

Re: Dkt. No. 15 I. INTRODUCTION This closed federal civil rights action was filed by Lacey Sivak, a state prisoner who is representing himself. On February 5, 2024, the Court concluded that dismissal was required because Sivak failed to submit a timely application for leave to proceed in forma pauperis (“IFP”) or pay the full filing by the twenty-eight-day deadline as set by the notice sent by the Clerk of the Court on November 20, 2023. Dkt. 13 at 1. Sivak has filed a motion to reopen, which the Court construes as a motion for relief from the Court’s February 5 Order under Rule 60(b) of the Federal Rules of Civil Procedure. Dkt. 15. For the reasons outlined below, the Court determines that the motion for relief should be GRANTED.

II. DISCUSSION Where the district court’s ruling has resulted in a final judgment or order, a party make seek relief from that final judgment or order under Rule 60(b). Rule 60(b) provides that a court may grant the motion where one or more of the following is shown: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered before the court’s decision; (3) fraud by the adverse party; (4) the judgment is void; (5) the judgment has been satisfied; (6) any other reason justifying relief. Fed. R. Civ. P. 60(b); School Dist. 1J v. ACandS Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

1 Sivak contends that he did not receive a copy of the Clerk’s November 20, 2023 notice || informing him that his action could not go forward until he paid the full filing fee or filed a completed IFP application by the twenty-eight-day deadline. Dkt. 15 at 3-5. As mentioned above, || the Court had dismissed this action because Sivak failed to timely respond to the Clerk’s November 20, 2023 notice. See Dkt. 13. The record now reveals that Sivak’s failure to respond to || the Clerk’s notice was because he never received such notice. See Dkt. 15 at 3-4. Pursuant to Rule 60(b)(1), the Court finds that such allegations are sufficient to relieve Sivak from its Order dismissing the case, as well as the Judgment entered against him. See Fed. R. Civ. P. 60(b)(1).

9 Accordingly, the istant motion for relief from an order is GRANTED. However, before || the Court can proceed to review this action, Sivak is hereby ORDERED to pay the filing fee in 11 full or to file a completed application to proceed IFP using the enclosed form, as directed below.

12 || I. CONCLUSION 13 For the foregoing reasons, the Court orders as follows: 14 1. Sivak’s motion to reopen, which has been construed as a motion for relief from an 15 order, is GRANTED. Dkt. 15. The Clerk shall REOPEN this action, VACATE the Court’s a 16 || February 5, 2024 Order of Dismissal Without Prejudice as well as the Judgment entered against 17 him, and REINSTATE the petition for writ of mandamus filed on November 20, 2023.

18 2. Sivak is ORDERED to pay the filing fee in full or to file a completed application 19 to proceed IFP using the enclosed form. Sivak shall do so within twenty-eight (28) days of the || date of this Order. Failure to pay the full filing fee or submit a completed IFP application by 21 the twenty-eight-day deadline shall result in the dismissal of this action without prejudice.

22 3. The Clerk shall send Sivak a blank prisoner IFP application along with a copy of 23 this Order.

24 4. This Order terminates Docket No. 15.

25 IT IS SO ORDERED.

26 || Dated: June 11, 2024 □ 1 nscek 28 ARACELI MARTINEZ-OLGUIN United States District Judge