Lacey Sivak v. John Doe ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 23 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LACEY MARK SIVAK, No. 20-35216
Plaintiff-Appellant, D.C. No. 1:19-cv-00234-DCN
v.
MEMORANDUM*
JOHN DOE,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Idaho
David C. Nye, District Judge, Presiding
Submitted February 17, 2021**
Before: FERNANDEZ, BYBEE, and BADE, Circuit Judges.
Idaho state prisoner Lacey Mark Sivak appeals pro se from the district
court’s judgment dismissing for failure to comply with a court order his action
alleging federal claims. We have jurisdiction under 28 U.S.C. § 1291. We review
for an abuse of discretion a district court’s dismissal under Federal Rule of Civil
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Procedure 41(b). Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). We
affirm.
The district court did not abuse its discretion in dismissing Sivak’s action
after warning him that failure to pay the filing fee or apply for in forma pauperis
status would result in dismissal. See id. at 1260-63 (setting forth factors for
determining whether a pro se action should be dismissed under Rule 41(b) and
requiring “a definite and firm conviction” that the district court “committed a clear
error of judgment” in order to overturn such a dismissal (citation and internal
quotation marks omitted)); see also 28 U.S.C. § 1915 (an action may proceed
without the payment of filing fees only upon granting of in forma pauperis status).
We reject as without merit Sivak’s contentions of bias or misconduct on the
part of the district judge and district court clerk.
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
All pending motions and requests are denied.
AFFIRMED.
2 20-35216