Sivak v. Perea

Background

Lacey Sivak, an Idaho state prisoner who represented himself, filed the actions listed in the order. In each case, the court denied Sivak’s request to proceed without paying the filing fee, a status commonly called proceeding “in forma pauperis.” The court relied on 28 U.S.C. § 1915(g), which generally bars a prisoner from proceeding without paying fees after three or more qualifying prior dismissals unless the prisoner alleges an imminent danger of serious physical injury. The court found that Sivak had at least three prior dismissals, had not alleged a specific imminent danger at the time he filed, and did not meet the applicable standard.

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 and instead appealed some of the orders. The court explained that an interlocutory appeal generally transfers jurisdiction 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 for these appeals, the district court retained jurisdiction. The order also noted that the Ninth Circuit had dismissed many of Sivak’s related interlocutory appeals as too insubstantial to warrant further review.

Ruling

The court held that the deadlines for paying the filing fees had passed and dismissed each listed action without prejudice. Sivak may file a motion to reopen any case after paying that case’s full filing fee; a separate full fee is required for each case he wants to reopen and pursue. Any pending motion to proceed without paying fees on appeal was denied under § 1915(g). The clerk was directed to terminate as moot all other pending motions and close the cases. Judge Araceli Martinez-Olguin signed the order.