Sivak v. Friedland

Background

Lacey Sivak, an Idaho state prisoner who represented himself, filed the seven actions identified above. In each case, the court denied his request to proceed without paying the filing fee under 28 U.S.C. § 1915(g). That statute bars a prisoner from proceeding without paying fees when the prisoner has had three or more qualifying prior dismissals, unless the prisoner alleges a specific immediate danger of serious physical injury. The court found that Sivak had three or more prior dismissals, had not alleged such danger when he filed the actions, and did not meet the applicable standard.

The court ordered Sivak to pay the full filing fee within fourteen days or face dismissal without prejudice. Sivak did not pay the fees and instead appealed the orders. The court explained that an interlocutory appeal generally transfers authority over the appealed issues to the court of appeals, but an appeal from an interlocutory order is not treated as filed until the court of appeals permits it. Because the Ninth Circuit had not granted permission, the district court retained authority over these actions.

Rulings

Because the deadlines to pay the filing fees had passed, the court dismissed each action without prejudice. The order states that Sivak may move to reopen any case after paying that case’s full filing fee; a separate full filing fee is required for each case he seeks to reopen and pursue.

The court also denied any pending motion to proceed without paying the filing fee on appeal under § 1915(g), for the same reasons it denied that status in the district court. The order states that the Ninth Circuit would independently review the record if Sivak sought that status there and would decide whether to grant it. The clerk was directed to terminate all other pending motions as moot and close the cases. Judge Araceli Martinez-Olguin signed the order.