Sivak v. Perea

Background

Lacey Sivak, an Idaho state prisoner who was representing himself, filed the related actions against Zahida Perea. In each action, the court denied Sivak’s request to proceed without paying the filing fee under 28 U.S.C. § 1915(g). That statute generally bars a prisoner who has had three or more qualifying prior cases dismissed from proceeding without paying unless the prisoner alleges an immediate danger of serious physical injury. The court found that Sivak had three or more prior dismissals, had not alleged a specific imminent danger when he filed these actions, and did not meet the requirements for proceeding without payment as a prisoner with multiple prior dismissals.

Appeals and filing-fee deadline

The court directed Sivak to pay the full filing fee in each action within 14 days or face dismissal without prejudice. Sivak appealed some of the related orders instead of paying the fees. The court explained that an interlocutory appeal does not transfer jurisdiction to the court of appeals until the court of appeals permits the appeal. Because the Ninth Circuit had not granted permission for these appeals, the district court retained jurisdiction. The deadline to pay the filing fees had passed.

Ruling

Judge Araceli Martinez-Olguin ordered that each action be dismissed without prejudice. After paying the full filing fee, Sivak may file a motion to reopen any action, but a separate full filing fee is required for each case he wants 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 denied that status in the district court. The court stated that the Ninth Circuit would independently review any appellate request to proceed without payment. The Clerk was ordered to terminate all other pending motions as moot and close the cases.