Sivak v. Perea

Background

Lacey Sivak, an Idaho state prisoner who represented himself, filed the above-captioned actions. The court had denied his requests to proceed without paying filing fees under 28 U.S.C. § 1915(g). That statute generally prevents a prisoner from proceeding without paying fees after three or more qualifying prior dismissals, unless the prisoner alleges that he was in imminent danger of serious physical injury. The court found that Sivak had three or more prior dismissals, had not alleged specific imminent danger at the time he filed these actions, and did not meet the standard for proceeding without paying fees.

The court directed Sivak to pay the full filing fee within 14 days or risk dismissal without prejudice. Instead of paying, Sivak appealed some of the orders. The court explained that an interlocutory appeal—an appeal before the case is finished—does not take jurisdiction away from the district court until the Ninth Circuit grants permission to bring the appeal. The Ninth Circuit had not granted that permission, so the district court retained jurisdiction. The filing-fee deadlines had passed.

Rulings

The court DISMISSED WITHOUT PREJUDICE each of the above-captioned actions. The court stated that, after paying the full filing fee, Sivak may file a motion to reopen any case he wishes to pursue, and that a separate full filing fee is required for each case.

The court also DENIED any pending motion for leave to proceed without paying the filing fee on appeal under 28 U.S.C. § 1915(g), for the same reasons it denied that status in the district court. The court noted that the Ninth Circuit would independently review the record if Sivak asked that court to allow him to proceed without paying the appellate fee. The Clerk was ordered to terminate all other pending motions as moot and close the cases. Judge Araceli Martinez-Olguin signed the order.