Sivak v. Perea

Background

Lacey Sivak, an Idaho state prisoner who represented himself, filed the actions listed in the caption. In each case, the court denied his request to proceed without paying the filing fee under 28 U.S.C. § 1915(g). That provision generally prevents a prisoner with three or more qualifying prior dismissals from proceeding without paying the fee unless the prisoner alleges a specific imminent danger of serious physical injury. The court found that Sivak had at least three prior dismissals, had not alleged such imminent danger when he filed the actions, and did not meet the requirements for proceeding without payment.

The court directed Sivak to pay the full filing fee in each case within 14 days or risk dismissal without prejudice. Sivak appealed some of the orders instead of paying the fees. The 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 permits the appeal. Because the Ninth Circuit had not granted permission to appeal, the district court concluded that it retained jurisdiction over the actions.

Ruling

The payment deadlines had passed, and Sivak had not paid the filing fees. The court therefore dismissed without prejudice each of the above-captioned actions. The order states that Sivak may move to reopen a case after paying that case's full filing fee; 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 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 order explains that the Ninth Circuit will independently review any request to proceed without paying the appellate fee. Finally, the clerk was ordered to terminate all other pending motions as moot and close all of the cases.