Sivak v. Perea

Background

Lacey Sivak filed the above-captioned actions against Zahida Perea while representing himself. The court had denied Sivak’s requests to proceed without paying filing fees under 28 U.S.C. § 1915(g). That provision generally bars a prisoner from proceeding without fees after three or more qualifying prior dismissals, unless the prisoner alleges an imminent danger of serious physical injury. The court found that Sivak had the required prior dismissals, had not alleged a specific imminent danger when he filed the actions, and did not meet the standard for proceeding without payment as a prisoner with many prior lawsuits dismissed as frivolous.

The court directed Sivak to pay the full filing fee in each action within fourteen days or risk dismissal without prejudice. Sivak did not pay the fees. He appealed some of the orders to the Ninth Circuit. The district 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 allows the appeal. Because the Ninth Circuit had not granted permission to appeal, the district court concluded that it retained authority over the actions.

Ruling

Judge Araceli Martinez-Olguin ordered that each action be dismissed without prejudice. The court stated that, after paying the full filing fee, Sivak could move to reopen any action, but that a separate full filing fee would be required for each case he wanted to reopen and pursue.

The court also denied any pending motion to proceed without fees on appeal under 28 U.S.C. § 1915(g), for the same reasons it had denied Sivak’s requests in the district court. The court noted that the Ninth Circuit would independently review the record if Sivak asked that court to allow an appeal without fees. Finally, the clerk was directed to terminate all other pending motions in each case as moot and close all of the cases.