Sivak v. Perea

Background

Lacey Sivak, an Idaho state prisoner who represented himself, filed the listed cases against Zahida Perea. In each case, the court denied Sivak’s request to proceed without paying the filing fee under 28 U.S.C. § 1915(g). That provision, part of the Prison Litigation Reform Act, generally prevents a prisoner from proceeding without paying fees after three or more prior qualifying dismissals unless the prisoner alleges an immediate danger of serious physical injury.

The court found that Sivak had three or more prior dismissals and had not alleged a specific immediate danger of serious physical injury when he filed these actions. The court also determined that he did not meet the standard for proceeding without payment as a prisoner with many prior lawsuits dismissed as frivolous. It ordered him to pay the full filing fee in each case within 14 days or face dismissal without prejudice.

Appeals and Jurisdiction

Sivak did not pay the filing fees. Instead, he appealed some of the orders to the Ninth Circuit. The court explained that an interlocutory appeal—an appeal before the case is finished—normally transfers jurisdiction over the appealed issues to the court of appeals. But an interlocutory appeal is not treated as 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 jurisdiction.

Ruling

The court dismissed each listed action without prejudice because the deadline to pay the filing fees had passed. 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 seeks to reopen and pursue.

The court also denied any pending motion to proceed without paying the filing fee on appeal under 28 U.S.C. § 1915(g), for the same reasons it denied that status in the district court. The Ninth Circuit would independently decide whether Sivak could proceed without paying fees in any appeal. The Clerk was directed to terminate all other pending motions as moot and close the cases.