Sivak v. Perea

Background

Lacey Sivak, identified as an Idaho state prisoner, filed the listed actions while representing himself. In each action, the court denied his request to proceed without paying the filing fee under 28 U.S.C. § 1915(g). That provision generally bars a prisoner with three or more qualifying prior dismissals—often called “strikes”—from proceeding without paying the fee unless the prisoner alleges an immediate danger of serious physical injury. The court found that Sivak had the required prior dismissals, had not alleged the required danger when he filed, and did not qualify for the three-strike exception.

The court ordered Sivak to pay the full filing fee within 14 days or risk dismissal without prejudice. Sivak did not pay the fees by the deadlines. Instead, he appealed some of the orders denying his fee-waiver requests.

Jurisdiction over the appeals

The court explained that an interlocutory appeal—an appeal before the case is finally resolved—normally transfers authority over the appealed issues to the Court of Appeals. But for an interlocutory appeal under the procedure involved here, the notice of appeal is not treated as filed until the Court of Appeals grants permission to appeal. The court stated that the Ninth Circuit had not granted Sivak permission, so the district court retained authority over these actions.

Ruling

The court dismissed each listed action without prejudice because Sivak had not paid the required filing fee. The court stated that Sivak may file a motion to reopen any case after paying that case’s full filing fee, and that a separate full fee is required for each case he wants to reopen and pursue.

The order 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. The Ninth Circuit would independently decide whether Sivak could proceed without paying fees on any appeal. The Clerk was directed to terminate the other pending motions as moot and close all the listed cases.

Classification

This is a procedural order because the court dismissed the cases based on failure to pay filing fees after denying fee-waiver status, without deciding the underlying claims.