Sivak v. Perea

Background

Lacey Sivak, an Idaho state prisoner who represented himself, filed the related actions against Zahida Perea. In each case, the court denied Sivak’s request to proceed without paying the filing fee under 28 U.S.C. § 1915(g). That statute generally bars a prisoner from proceeding without paying fees if the prisoner has had three or more prior qualifying dismissals, unless the prisoner alleges that he faced 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 filing fees as a prisoner with those prior 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 orders 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 to appeal, 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 and dismissed without prejudice each action. Sivak may move to reopen any action after paying the full filing fee for that particular case. The court also denied any pending motion to proceed without paying the filing fee on appeal under § 1915(g), directed the clerk to terminate the other pending motions as moot, and ordered the cases closed.

Effect

The dismissals were without prejudice, so the order states that Sivak may seek to reopen the cases by paying the required fee for each case. The opinion does not decide the underlying claims against Zahida Perea.