Sivak v. Perea

Background

Lacey Sivak, an Idaho state prisoner who represented 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 prevents a prisoner with three or more qualifying prior dismissals from proceeding without paying the filing fee unless the prisoner alleges a specific imminent danger of serious physical injury. The court determined that Sivak had three or more prior dismissals and had not alleged the required imminent danger.

The court ordered Sivak to pay the full filing fee within 14 days or face dismissal without prejudice. Sivak appealed some of the orders instead of paying the fees. The court explained that an interlocutory appeal does not transfer jurisdiction to the Court of Appeals until that court permits the appeal. Because the Ninth Circuit had not granted permission, the district court retained jurisdiction over the actions. The payment deadlines passed.

Rulings

The court dismissed each action without prejudice. It stated that Sivak may move to reopen any action after paying the full filing fee, and that a separate full filing fee is required for each action 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 28 U.S.C. § 1915(g), for the same reasons it denied Sivak’s requests in the district court. The court noted that the Ninth Circuit would independently review the record if Sivak sought that status there. The Clerk was directed to terminate all other pending motions as moot and close the cases. The order did not decide the underlying claims.