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 provision bars a prisoner with three or more qualifying prior dismissals from proceeding without paying unless the prisoner alleges a specific immediate danger of serious physical injury. The court found that Sivak had not met that exception.

The court ordered Sivak to pay the full filing fee within 14 days or face dismissal without prejudice. Instead of paying, he appealed some of the orders. The opinion explains that an interlocutory appeal—an appeal before the case is finally resolved—does not take authority away from the district court until the appeals court permits the appeal. The Ninth Circuit had not granted permission to appeal.

Ruling

The deadline to pay the filing fees had passed. The court therefore dismissed each above-captioned action without prejudice. Sivak may move to reopen any action after paying that action’s full filing fee; a separate full fee is required for each case he seeks to reopen and pursue.

The court also denied any pending request to proceed without paying the filing fee on appeal under 28 U.S.C. § 1915(g), for the same reasons it denied that status in the district court. The court noted that the Ninth Circuit would independently review any request to proceed without paying fees on appeal. The Clerk was directed to terminate all other pending motions as moot and close the cases.

Disposition

Each action was DISMISSED without prejudice. Any pending motion for leave to proceed without paying the filing fee on appeal was DENIED. Other pending motions were terminated as moot, and the cases were closed.