Sivak v. Perea

Background

Lacey Sivak, an Idaho state prisoner who represented himself, filed the actions listed in the caption. The court had denied Sivak’s requests to proceed without paying the filing fee under 28 U.S.C. § 1915(g). That provision generally bars a prisoner who has had three or more qualifying prior cases dismissed from proceeding without paying the fee, unless the prisoner alleges an immediate danger of serious physical injury. The court found that Sivak had three or more prior dismissals, had not alleged a specific immediate danger when he filed these actions, and did not meet the requirements for proceeding without payment.

The court directed Sivak to pay the full filing fee in each case within fourteen days or face dismissal without prejudice. Sivak did not pay the fees and instead appealed some of the rulings. The court explained that an interlocutory appeal generally transfers authority over the appealed issues to the court of appeals, but an appeal from an interlocutory order is not treated as filed until the court of appeals permits it. Because the Ninth Circuit had not granted permission to appeal, the district court retained authority over these actions.

Ruling

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

The court also denied any pending motion to proceed without payment of the filing fee on appeal under § 1915(g) for the same reasons. It explained 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 listed cases.