Sivak v. Perea

Background

Lacey Sivak, an Idaho state prisoner who represented himself, filed the actions listed in the caption. In each case, the court denied Sivak’s request to proceed without paying the filing fee under 28 U.S.C. § 1915(g). That provision, part of the Prison Litigation Reform Act, generally prevents a prisoner from proceeding without paying filing fees after three or more qualifying prior dismissals, unless the prisoner alleges that he faced imminent danger of serious physical injury when he filed the action.

The court found that Sivak had at least three prior dismissals and had not alleged specific imminent danger of serious physical injury. It directed him to pay the full filing fee within 14 days or risk dismissal without prejudice.

Appeals and jurisdiction

Sivak appealed some of the orders denying his requests to proceed without paying the fees. The court explained that an interlocutory appeal generally transfers jurisdiction over the issues being appealed 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 for these appeals, the district court retained jurisdiction over the actions.

Ruling

The deadline for paying the filing fee had passed in every listed case. The court therefore dismissed each action without prejudice. It stated that Sivak could move to reopen a case after paying the full filing fee, and that a separate full filing fee would be required for each case he wanted to reopen and pursue.

The court also denied any pending request to proceed without paying the filing fee on appeal under § 1915(g), terminated all other pending motions as moot, and directed the Clerk to close the cases. Judge Araceli Martinez-Olguin issued the order.