Sivak v. Perea

Background

Lacey Sivak, an Idaho state prisoner representing himself, filed the above-captioned cases against Zahida Perea. The cases carry numerous docket numbers, including 24-cv-01579-AMO (PR), 24-cv-01580-AMO (PR), and others listed in the order.

In each case, the court denied Sivak’s request to proceed without paying the filing fee. Under 28 U.S.C. § 1915(g), a prisoner generally cannot proceed without paying filing fees after three or more prior actions or appeals were dismissed as frivolous, malicious, or for failure to state a claim, unless the prisoner shows that he faced imminent danger of serious physical injury. The court found that Sivak had three or more qualifying prior dismissals, had not alleged a specific imminent danger when he filed the cases, and did not meet the standard for proceeding without payment as a prisoner with many prior dismissals.

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 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 allows the appeal. The Ninth Circuit had not granted permission for Sivak’s appeals, so the district court retained authority over these cases.

Ruling

The deadline to pay the filing fees had passed. The court therefore dismissed each above-captioned action without prejudice. The order stated 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 wishes 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 the district court had denied that status. It explained that the Ninth Circuit would independently review any request to proceed without paying the filing fee on appeal. The Clerk was directed to terminate all other pending motions as moot and close the cases.

Effect of the Order

The dismissals were without prejudice, and the order expressly allowed Sivak to seek reopening after paying the required fee for each case. The order did not decide the underlying claims against Zahida Perea.