Sivak v. Perea

Background

Lacey Sivak, an Idaho state prisoner representing himself, filed the above-captioned actions against Zahida Perea. The opinion lists numerous related case numbers.

In each action, the court denied Sivak permission to proceed without paying the filing fee under 28 U.S.C. § 1915(g). That statute generally bars a prisoner from proceeding without paying fees when the prisoner has had three or more prior federal actions or appeals dismissed as frivolous, malicious, or for failing to state a claim, unless the prisoner was in immediate danger of serious physical injury. The court found that Sivak had three or more qualifying prior dismissals, had not alleged a specific immediate danger of serious physical injury when he filed, and did not meet the standard for proceeding without paying the fees.

Appeals and Filing Fees

The court ordered Sivak to pay the full filing fee in each action within fourteen days or face dismissal without prejudice. Sivak did not pay the fees and instead appealed some of the orders denying permission to proceed without payment.

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 considered filed until the court of appeals permits the appeal. Because the Ninth Circuit had not granted permission for these interlocutory appeals, the district court retained jurisdiction over the actions. The opinion also notes that the Ninth Circuit had dismissed many of Sivak’s interlocutory appeals as too insubstantial to warrant further review.

Ruling

The court held that the deadline to pay the filing fee had passed and ordered that each action be dismissed without prejudice. This means the order did not bar Sivak from seeking to reopen an action after paying its full filing fee. A separate full filing fee is required for each case Sivak seeks 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. It directed the Clerk to terminate as moot all other pending motions in each case and to close all of the listed cases. The order was signed by United States District Judge Araceli Martinez-Olguin.