Sivak v. Friedland

Background

Lacey Sivak, identified in the opinion as an Idaho state prisoner and frequent litigant, filed the seven listed actions while representing himself. In each case, the court denied his request to proceed without paying the filing fee. The court relied on the federal prisoner-litigation rule that bars a prisoner from proceeding without paying the fee after three or more 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 and had not alleged that kind of danger when he filed the actions.

The court directed Sivak to pay the full filing fee within 14 days or face dismissal without prejudice. Sivak did not pay the fees. Instead, he filed appeals in the Ninth Circuit.

Jurisdiction over the appeals

The court explained that an appeal from an interlocutory order—an appeal before the district court case is finished—does not become effective until the court of appeals permits the appeal. Because the Ninth Circuit had not granted Sivak permission to bring these interlocutory appeals, the district court concluded that it retained authority over the cases. The opinion also noted that the Ninth Circuit had dismissed many identical appeals as too insubstantial for further review.

Rulings

The court dismissed each of the seven actions without prejudice because Sivak’s deadline to pay the filing fee had passed. The court stated that Sivak may file a motion to reopen any case after paying the full filing fee for that case, and that a separate full fee is required for each case he wants to reopen and pursue.

The court also denied any pending motion for permission to appeal without paying the filing fee under the same three-dismissal rule. It stated that the Ninth Circuit would independently review the record if Sivak asked that court for permission to appeal without paying. The clerk was ordered to terminate all other pending motions as moot and close the cases.