Sivak v. Parea

Background

Lacey Sivak, an Idaho state prisoner who represented himself, filed the actions listed in the caption. In each case, the court denied his request to proceed without paying the filing fee under 28 U.S.C. § 1915(g). That statute prevents a prisoner with three or more qualifying prior dismissals 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 that kind of danger when he filed the actions, and did not meet the standard for proceeding without payment as a prisoner with many prior dismissed lawsuits.

The court directed Sivak to pay the full filing fee in each case 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 appeals court, but an appeal from an interlocutory order is not treated as filed until the appeals court permits the appeal. Because the Ninth Circuit had not granted permission, the district court retained authority over these actions.

Ruling

The deadline to pay the filing fees had passed. Judge Araceli Martinez-Olguin ordered that each action be dismissed without prejudice. The order states that Sivak may pay the full filing fee and move to reopen any case he wishes to pursue, and that a separate full filing fee is required for each case. The clerk was directed to terminate as moot all other pending motions in each case and close all the listed cases. The order did not decide the underlying claims.

Effect of the Order

The listed actions were closed, but the dismissals were without prejudice. The opinion states that reopening is available through a motion after payment of the applicable full filing fee for each case.