Sivak v. Perea

Background

Lacey Sivak, an Idaho state prisoner who represented himself, filed the above-captioned actions. In each case, the court denied his request to proceed without paying the filing fee under 28 U.S.C. § 1915(g). That statute limits a prisoner’s ability to proceed without paying fees after three or more earlier actions or appeals were dismissed as frivolous, malicious, or for failure to state a claim, unless the prisoner alleges an imminent danger of serious physical injury. The court found that Sivak had three or more prior dismissals, had not alleged the required imminent danger when he filed these actions, and did not meet the standard for proceeding without paying the fees.

Appeals and Filing-Fee Deadline

The court ordered Sivak to pay the full filing fee in each case within 14 days or face dismissal without prejudice. Sivak did not pay the fees. He appealed some of the orders denying his requests to proceed without paying fees. The court explained that an interlocutory appeal does not take jurisdiction away from the district court until the court of appeals authorizes the appeal. Because the Ninth Circuit had not authorized Sivak’s appeals, the district court retained jurisdiction over these actions.

Ruling

Judge Araceli Martinez-Olguin ordered that each listed action be dismissed without prejudice. The court stated that Sivak could move to reopen any action after paying its full filing fee, and that a separate full filing fee would be required for each case he wished to reopen and pursue. The court also denied any pending request to proceed without paying the appellate filing fee under 28 U.S.C. § 1915(g), while noting that the Ninth Circuit would independently decide whether to grant that status for an appeal. Finally, the clerk was directed to terminate all other pending motions as moot and close the cases.