Sivak v. Thompson

Background

Lacey Sivak, identified in the opinion as an Idaho state prisoner and frequent litigant, filed the listed actions representing himself. In each case, the court denied his request to proceed without paying the filing fee, known as proceeding in forma pauperis or IFP. The court relied on 28 U.S.C. § 1915(g), which generally bars a prisoner from proceeding without paying the fee after three or more qualifying prior dismissals unless the prisoner alleges a specific, immediate danger of serious physical injury. The court found that Sivak had multiple prior dismissals and had not alleged that kind of danger when he filed the actions.

The court ordered Sivak to pay the full filing fee within 14 days or face dismissal without prejudice. Sivak did not pay the fees and instead appealed some of the orders. The court explained that an interlocutory appeal generally transfers authority over the appealed issues to the court of appeals, but a notice of appeal from an interlocutory order is not treated as filed until the court of appeals permits the appeal. Because the Ninth Circuit had not granted permission, the district court concluded that it retained authority over these actions.

Rulings

The court held that the payment deadlines had passed and dismissed without prejudice each above-captioned action. The opinion states that Sivak may move to reopen any action after paying its full filing fee, with a separate full fee required for each case he seeks to reopen and pursue.

The court also denied any pending motion for permission to proceed without paying the filing fee on appeal under § 1915(g), for the same reasons it had denied that status in the district court. The opinion states that the Ninth Circuit would independently review any request to proceed without paying fees in that court. The clerk was directed to terminate all other pending motions as moot and close all of the listed cases. Judge Araceli Martinez-Olguin signed the order.