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 from proceeding without paying after three or more prior actions or appeals were dismissed as frivolous, malicious, or for failure to state a claim, unless the prisoner faced an immediate danger of serious physical injury. The court found that Sivak had at least three qualifying prior dismissals, had not alleged a specific immediate danger when he filed, and did not meet the standard for proceeding without payment.

The court directed Sivak to pay the full filing fee within 14 days or risk dismissal without prejudice. Instead of paying, Sivak appealed some of the orders. The court explained that an interlocutory appeal—an appeal before the case is finally resolved—does not take effect until the court of appeals grants permission to bring it. Because the Ninth Circuit had not granted permission for these appeals, the district court retained authority over the actions. The opinion also noted that the Ninth Circuit had dismissed many of Sivak’s similar interlocutory appeals as too insubstantial for further review.

Rulings

The court held that the payment deadline had passed and dismissed without prejudice each action listed in the caption. The dismissal without prejudice means the actions were not permanently barred by this order. Sivak may move 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.

The court also denied any pending motion to proceed without paying fees on appeal under 28 U.S.C. § 1915(g), terminated all other pending motions in each case as moot, and closed the cases. The order was signed by United States District Judge Araceli Martinez-Olguin on July 11, 2024.