Sivak v. Perea

Background

Lacey Sivak, an Idaho state prisoner who represented himself, filed the actions listed in the caption against Zahida Perea. In each action, the court previously denied Sivak’s request to proceed without paying the filing fee, a status commonly called proceeding in forma pauperis. The court relied on the federal prisoner “three-strikes” rule, which limits that status for a prisoner with at least three qualifying prior dismissals unless the prisoner alleges an imminent danger of serious physical injury. The court found that Sivak had not alleged such danger and directed him to pay the full filing fee within 14 days or risk dismissal without prejudice.

Sivak did not pay the fees. Instead, he appealed some of the orders denying his requests. The court explained that an interlocutory appeal generally transfers jurisdiction over the appealed issues to the court of appeals, but a notice of appeal from an interlocutory order is not effective until the court of appeals permits the appeal. The Ninth Circuit had not granted that permission, so the district court retained jurisdiction over these actions.

Ruling

Because the deadlines for paying the filing fees had passed, the court dismissed without prejudice each action listed in the caption. The court stated that Sivak may move to reopen any action after paying that action’s full filing fee; a separate full filing fee is required for each case he wishes to reopen and pursue.

The court also denied any pending motion for permission 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. The Clerk was ordered to terminate all other pending motions as moot and close the cases. Judge Araceli Martinez-Olguin entered the order.