Sivak v. Perea

Background

Lacey Sivak, an Idaho state prisoner who represented himself, filed the listed actions against Zahida Perea. In each case, the court denied Sivak's request to proceed without paying the filing fee under 28 U.S.C. § 1915(g). That statute generally prevents a prisoner with three or more qualifying prior dismissals from proceeding without paying the fee unless the prisoner shows an immediate danger of serious physical injury. The court found that Sivak had the required prior dismissals, had not alleged that kind of immediate danger when he filed the actions, and did not meet the standard for proceeding without paying the fees.

The court ordered Sivak to pay the full filing fee within 14 days or face dismissal without prejudice. Instead of paying, Sivak appealed some of the orders. The court explained that an appeal from an interlocutory order generally transfers jurisdiction over the appealed issues 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 those appeals, the district court retained jurisdiction.

Rulings

Because Sivak's deadlines to pay the filing fees had passed, the court dismissed each listed action without prejudice. The court stated that Sivak may move to reopen any case after paying that case's full filing fee, and that a separate full filing fee is required for each case he 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 explained that the Ninth Circuit would independently decide whether Sivak could proceed without paying on appeal. The clerk was directed to terminate as moot all other pending motions in each case and close all the listed cases.