Sivak v. Perea

Background

Lacey Sivak, an Idaho state prisoner who represented himself, filed the above-captioned actions against Zahida Perea. The opinion identifies numerous related case numbers, including 24-cv-00764-AMO (PR), 24-cv-00765-AMO (PR), and others.

In each action, Sivak asked to proceed without paying the filing fee, a status commonly called proceeding in forma pauperis. The court had denied those requests under 28 U.S.C. § 1915(g), which generally prevents a prisoner with three or more qualifying prior dismissals from proceeding without paying fees 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 a specific imminent danger of serious physical injury when he filed the actions, and did not meet the applicable standard for proceeding without paying the fees.

The court directed Sivak to pay the full filing fee in each case within 14 days or risk dismissal without prejudice. Sivak did not pay the fees. Instead, he appealed some of the orders to the Ninth Circuit.

Jurisdiction over the cases

The court explained that filing a notice of interlocutory appeal generally transfers authority over the appealed issues to the court of appeals. But for an interlocutory appeal, the appeal is not considered filed until the court of appeals issues an order allowing the appeal. Because the Ninth Circuit had not granted Sivak permission to appeal, the district court concluded that it retained authority over these actions. The opinion also states that the Ninth Circuit had issued identical orders dismissing many of Sivak’s interlocutory appeals in other proceedings.

Ruling

The deadline for paying the filing fees had passed. The court therefore dismissed each above-captioned action without prejudice. The order states that Sivak may file a motion to reopen any action after paying its full filing fee, and that a separate full filing fee is required for each case he seeks to reopen and pursue.

The court also denied any pending motion for leave to proceed without paying 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 order explains that the Ninth Circuit would independently review the record if Sivak asked that court to allow an appeal without payment, and that the Ninth Circuit would decide whether to grant that status.

Finally, the clerk was directed to terminate all other pending motions in each case as moot and close all of the above-captioned cases. The order was signed by United States District Judge Araceli Martinez-Olguin on July 11, 2024.