Sivak v. Perea

Background

Lacey Sivak, an Idaho state prisoner who represented himself, filed the related actions listed in the order. In each case, the court previously denied his request to proceed without paying the filing fee. Under 28 U.S.C. § 1915(g), a prisoner who has had three or more prior federal actions or appeals dismissed as frivolous, malicious, or for failure to state a claim generally cannot proceed without paying the fee unless he alleges that he was in imminent danger of serious physical injury. The court determined that Sivak had three or more qualifying prior dismissals, had not alleged a specific imminent danger when he filed, and did not satisfy the exception.

The court directed Sivak to pay the full filing fee within 14 days or risk dismissal without prejudice. Instead of paying, he appealed some of the orders. The court explained that an interlocutory appeal generally transfers authority over the appealed issues to the court of appeals, but such an appeal is not considered filed until the court of appeals permits it. Because the Ninth Circuit had not granted permission for these appeals, the district court retained authority over the actions. The order also noted that the Ninth Circuit had dismissed many of Sivak’s interlocutory appeals as too insubstantial for further review.

Ruling

Because the deadlines to pay the filing fees had passed, the court dismissed each action without prejudice. Sivak may file a motion to reopen any action after paying that action’s full filing fee; a separate full fee is required for each case he wants to reopen and pursue. Any pending motion for permission to proceed without paying the filing fee on appeal was denied under § 1915(g). The Clerk was directed to terminate all other pending motions as moot and close the cases. The order was signed by United States District Judge Araceli Martinez-Olguin.