Sivak v. Perea

Background

Lacey Sivak, an Idaho state prisoner who represented himself, filed the above-captioned actions. In each action, the court denied Sivak's request to proceed without prepaying the filing fee. The court relied on 28 U.S.C. § 1915(g), which generally prevents a prisoner from proceeding without prepaying fees after three or more qualifying prior cases or appeals were dismissed as frivolous, malicious, or for failure to state a claim, unless the prisoner faces an imminent danger of serious physical injury.

The court found that Sivak had at least three prior dismissals, had not alleged a specific imminent danger of serious physical injury when he filed the actions, and did not satisfy the requirements for proceeding without paying the fees. The court directed him to pay the full filing fee in each case within 14 days or face dismissal without prejudice.

Appeal and jurisdiction

Sivak appealed some of the orders denying his requests to proceed without paying fees. The court explained that an interlocutory appeal—an appeal taken before the case is finished—generally transfers authority over the issues being appealed 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 Sivak permission to bring these interlocutory appeals, the district court concluded that it retained authority over the actions.

Ruling

The deadline for Sivak to pay the filing fee in each action had passed. The court therefore dismissed without prejudice each above-captioned action. The order states that Sivak may pay the full filing fee and then file a motion to reopen any action he wishes to pursue, with a separate full filing fee required for each case.

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 Sivak was denied that status in the district court. It stated that the Ninth Circuit would independently review the record if Sivak sought that status there. Finally, the clerk was directed to terminate all other pending motions in each case as moot and close the cases.