Sivak v. Perea

Background

Lacey Sivak, an Idaho state prisoner who represented himself, filed the many related actions listed in the caption. In each case, he asked to proceed without paying the filing fee, a status commonly called proceeding in forma pauperis, or IFP.

The court had denied Sivak’s IFP requests under 28 U.S.C. § 1915(g). That provision bars a prisoner from proceeding without paying the filing fee if the prisoner has had three or more prior qualifying cases or appeals dismissed, unless the prisoner was under an imminent danger of serious physical injury when filing. The court found that Sivak had at least three such prior dismissals, had not alleged a specific imminent danger, and did not meet the standard for proceeding without paying the fees.

Appeals and jurisdiction

The court ordered Sivak to pay the full filing fee in each action within 14 days or face dismissal without prejudice. Sivak appealed some of the orders instead of paying. 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 permits the appeal. Because the Ninth Circuit had not granted permission, the district court concluded that it retained authority over these actions.

Rulings

The court held that the deadline to pay the filing fees had passed and dismissed without prejudice each action listed in the caption. It stated that Sivak may file a motion to reopen any case after paying that case’s full filing fee, with a separate full fee required for each case he seeks to reopen.

The court also denied any pending motion for permission to proceed without paying fees on appeal under 28 U.S.C. § 1915(g), terminated all other pending motions as moot, and ordered the cases closed. The order did not decide the underlying merits of Sivak’s claims.