Sivak v. Perea

Background

Lacey Sivak, an Idaho state prisoner representing himself, filed the numerous actions listed in the caption 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), a prisoner who has had three or more prior cases or appeals dismissed as frivolous, malicious, or for failure to state a claim generally may not proceed without paying the fee unless the prisoner alleges an imminent danger of serious physical injury. The court found that Sivak had three or more qualifying prior dismissals and had not alleged the required imminent danger.

Filing-fee deadline and appeals

The court directed Sivak to pay the full filing fee within fourteen days or risk dismissal without prejudice. Sivak did not pay the fees and appealed some of the orders. The court explained that an interlocutory appeal—an appeal before the case is finished—does not transfer jurisdiction until the Court of Appeals permits the appeal. The Ninth Circuit had not granted permission for these appeals, so the district court retained jurisdiction. The deadlines for paying the filing fees had passed.

Ruling

Judge Araceli Martinez-Olguin dismissed without prejudice each action listed in the caption. The order allows Sivak to move to reopen any case after paying that case’s full filing fee; a separate full filing fee is required for each case he wants to reopen and pursue. The court also denied any pending request to proceed without paying the filing fee on appeal under 28 U.S.C. § 1915(g), directed the clerk to terminate the other pending motions as moot, and ordered the cases closed.

Effect of the ruling

The dismissals were without prejudice, and the order expressly stated that reopening is available after payment of the full filing fee for the relevant case. The opinion did not decide the underlying claims against Perea.