Sivak v. Parea

Background

Lacey Sivak, an Idaho state prisoner who was representing himself, filed the actions listed in the order. In each case, the court denied Sivak’s request to proceed without paying the filing fee, commonly called proceeding in forma pauperis. The court relied on the prisoner “three-strikes” rule in 28 U.S.C. § 1915(g), which generally bars a prisoner from proceeding without paying the fee after three or more prior cases or appeals were dismissed as frivolous, malicious, or for failure to state a claim, unless the prisoner faced imminent danger of serious physical injury. The court found that Sivak had at least three qualifying prior dismissals and had not alleged a specific imminent danger when he filed these actions.

The court ordered Sivak to pay the full filing fee in each case within 14 days or risk dismissal without prejudice. Instead of paying, Sivak appealed some of the orders. The court explained that an interlocutory appeal normally 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. The Ninth Circuit had not granted Sivak permission to bring the interlocutory appeals, so the district court retained jurisdiction. The order also notes that the Ninth Circuit had dismissed many of Sivak’s similar interlocutory appeals as too insubstantial to warrant further review.

Rulings

Because the deadlines to pay the filing fees had passed, the court dismissed without prejudice each listed action. The order states 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 action he seeks to reopen and pursue. Any pending motion for permission to proceed without paying the filing fee on appeal was denied under 28 U.S.C. § 1915(g). The clerk was directed to terminate as moot all other pending motions and close the cases. Judge Araceli Martinez-Olguin signed the order.