Sivak v. Perea

Background

Lacey Sivak, identified in the order as an Idaho state prisoner and frequent litigant, filed the listed actions while representing himself. In each case, he asked to proceed without paying the filing fee. The court denied those requests under 28 U.S.C. § 1915(g), a provision that generally bars a prisoner from proceeding without paying after three or more qualifying prior dismissals unless the prisoner alleges an imminent danger of serious physical injury.

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

Appeals and jurisdiction

Sivak did not pay the filing fees by the deadline. Instead, he appealed some of the orders. The court explained that an interlocutory appeal—an appeal before the case is finally resolved—does not become effective until the court of appeals permits the appeal. Because the Ninth Circuit had not granted permission for these interlocutory appeals, the district court concluded that it retained authority over the actions.

The order also noted that the Ninth Circuit had issued identical orders dismissing many of Sivak’s interlocutory appeals as too insubstantial for further review. Those orders stated that they would constitute the appellate mandates.

Ruling

The court dismissed each listed action without prejudice because Sivak had not paid the required filing fee. The order stated that Sivak may file a motion to reopen any action after paying its 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 the district court had denied that status in the underlying cases. The order explained that the Ninth Circuit would independently review any request to proceed without paying fees on appeal. The clerk was directed to terminate all other pending motions as moot and close the cases.