Sivak v. Perea

Background

Lacey Sivak, an Idaho state prisoner who was representing himself, filed the above-captioned actions against Zahida Perea. The order covers numerous cases with separate case numbers.

In each case, the court previously denied Sivak's request to proceed without paying the filing fee, commonly called in forma pauperis status or IFP status. Under 28 U.S.C. § 1915(g), a prisoner who has had three or more prior federal actions or appeals dismissed as frivolous, malicious, or for failure to state a claim generally may not proceed without paying the fee unless the prisoner alleges an imminent danger of serious physical injury. The court found that Sivak had at least three qualifying prior dismissals, had not alleged a specific imminent danger when he filed, and did not meet the standard for proceeding without payment as a three-striker.

The court ordered Sivak to pay the full filing fee within 14 days in each case or risk dismissal without prejudice. Instead of paying, Sivak appealed some of the orders. The court explained that an interlocutory appeal generally transfers authority over the appealed issues to the court of appeals, but such an appeal is not considered filed until the court of appeals permits it. Because the Ninth Circuit had not granted permission for these appeals, the district court concluded that it retained authority over the cases.

Rulings

The court held that the deadline for paying the filing fee had passed. It therefore dismissed each above-captioned action without prejudice. The order states that Sivak may move to reopen any case after paying the full filing fee, and that a separate full filing fee is required for each case he seeks to reopen and pursue.

The court also denied any pending motion for permission to proceed without paying the filing fee on appeal under § 1915(g), for the same reasons the district court had denied that status. The court noted that the Ninth Circuit would independently review the record if Sivak sought that status there. The clerk was directed to terminate all other pending motions as moot and close the cases.