Sivak v. Parea

Background

Lacey Sivak, an Idaho state prisoner representing himself, filed the above-captioned actions against Zahida Perea. In each case, the court denied Sivak permission to proceed without prepaying the filing fee under 28 U.S.C. § 1915(g). That provision generally prevents a prisoner from proceeding without prepaying fees after three or more prior actions or appeals were dismissed as frivolous, malicious, or for failure to state a claim, unless the prisoner was in immediate danger of serious physical injury.

The court found that Sivak had three or more prior dismissals, had not alleged a specific immediate danger of serious physical injury when he filed these actions, and did not qualify for the statutory exception. The court directed 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 denying permission to proceed without prepaying fees. The court explained that an interlocutory appeal generally transfers authority over the appealed issues to the court of appeals, but an appeal from an interlocutory order is not considered filed until the court of appeals permits the appeal. Because the Ninth Circuit had not granted permission for these appeals, the district court retained authority over the actions.

Ruling

The deadline for paying the filing fees had passed. The court therefore dismissed each above-captioned action without prejudice. It stated that Sivak could move to reopen any case after paying that case’s full filing fee, and that a separate full filing fee would be required for each case he wanted to reopen and pursue.

The order also denied any pending motion for permission to proceed without prepaying the filing fee on appeal under § 1915(g), for the same reasons the district court had denied that status. The Clerk was directed to terminate all other pending motions as moot and close the cases. The court did not decide the underlying claims.