Sivak v. Officer of the United States

Background

Lacey Sivak, an Idaho state prisoner and frequent litigant, filed the listed actions while representing himself. In each action, he asked to proceed without paying the filing fee. The court denied those requests under 28 U.S.C. § 1915(g), a rule that generally prevents a prisoner with three or more prior qualifying dismissals from proceeding without paying unless the prisoner alleges an immediate danger of serious physical injury. The court found that Sivak had at least three such prior dismissals, had not alleged a specific immediate danger at the time he filed, and did not meet the applicable standard.

The court ordered Sivak to pay the full filing fee in each case 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, or non-final, order does not take effect for jurisdictional purposes until the appeals court permits the appeal. The Ninth Circuit had not granted permission, so the district court retained authority over the cases.

Ruling

Because the filing-fee deadline had passed without payment, the court dismissed without prejudice each of the above-captioned actions. The court stated that Sivak may file a motion 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 wants to reopen and pursue. The court also denied any pending request to proceed without paying the filing fee on appeal under § 1915(g), terminated the other pending motions as moot, and ordered the clerk to close all the cases.

Effect of the Order

The dismissals were without prejudice, so the order did not state that refiling or reopening was permanently barred. The order allows reopening only after payment of the full filing fee for the particular case. It does not decide the underlying claims.