Sivak v. Perea

Background

Lacey Sivak filed the above-captioned actions and represented himself. The court had denied his requests to proceed without paying filing fees under 28 U.S.C. § 1915(g). That provision generally bars a prisoner from proceeding without paying fees after three or more qualifying prior cases or appeals were dismissed as frivolous, malicious, or for failure to state a claim, unless the prisoner alleges an immediate danger of serious physical injury. The court found that Sivak had at least three prior dismissals, had not alleged the required immediate danger when he filed these actions, and did not meet the standard for proceeding without paying fees as a prisoner with three or more qualifying dismissals.

The court directed Sivak to pay the full filing fee within 14 days or face dismissal without prejudice. Sivak did not pay the filing fees. He appealed some of the orders instead. The court explained that an appeal of an interim order does not transfer the district court’s authority over the case until the court of appeals authorizes the appeal. The Ninth Circuit had not granted permission for these interlocutory appeals, so the district court retained authority over the actions.

Rulings

The court dismissed without prejudice each of the above-captioned actions because Sivak’s deadlines to pay the filing fees had passed. The court stated that Sivak could pay the full filing fee and file a motion to reopen any action, but 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 fees on appeal under 28 U.S.C. § 1915(g) for the same reasons it had denied that status 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 paying fees and would decide whether to grant that request. Finally, the Clerk was ordered to terminate as moot all other pending motions in each case and close all of the actions.