Sivak v. Perea

Background

Lacey Sivak, an Idaho state prisoner who represented himself, filed the listed actions. In each case, the court denied his request to proceed without paying the filing fee under 28 U.S.C. § 1915(g). That provision generally bars a prisoner from proceeding without payment after three or more prior qualifying dismissals, unless the prisoner alleges imminent danger of serious physical injury.

The court found that Sivak had three or more prior dismissals, had not alleged specific imminent danger of serious physical injury when he filed the actions, and did not meet the standard for proceeding without paying the fees as a prisoner with three prior qualifying dismissals. The court ordered him to pay the full filing fee in each case within 14 days or risk dismissal without prejudice.

Appeals and jurisdiction

Sivak appealed some of the fee-waiver rulings instead of paying the filing fees. 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 treated as filed until the court of appeals permits the appeal. Because the Ninth Circuit had not granted permission, the district court concluded that it retained jurisdiction over these actions.

Ruling

The court held that the deadlines for paying the filing fees had passed. It therefore dismissed without prejudice each action. The court stated that Sivak may move to reopen any action after paying the full filing fee, and that a separate full filing fee is required for each action he seeks to reopen and pursue.

The court also stated that any pending motion to proceed without paying the filing fee on appeal was denied under 28 U.S.C. § 1915(g) for the same reasons the district court had denied that status. The Clerk was directed to terminate all other pending motions as moot and close the listed cases.