Sivak v. Perea

Background

Lacey Sivak, an Idaho state prisoner, filed the five actions while representing himself. In each case, the court denied his request to proceed without prepaying the filing fee, known as in forma pauperis or IFP status. The court relied on the federal three-strikes rule, which generally bars a prisoner with three or more qualifying prior dismissals from proceeding without paying unless the prisoner alleges a specific immediate danger of serious physical injury. The court found that Sivak had the required prior dismissals and had not alleged such a danger when he filed the actions.

The court ordered Sivak to pay the full filing fee in each case within 14 days or risk dismissal without prejudice. Sivak did not pay the fees. Instead, he appealed the fee-related orders to the Ninth Circuit.

Jurisdiction over the appeals

The district court explained that a notice of an interlocutory appeal—an appeal before the case is finished—does not take effect until the appeals court permits the appeal. Because the Ninth Circuit had not granted permission, the district court retained authority over the cases. The deadline for paying the filing fees had passed.

Ruling

The court dismissed each of the five actions 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.

The court also denied any pending motion for IFP status on appeal under the same three-strikes rule. The order stated that the Ninth Circuit would independently review the record if Sivak asked that court for IFP status. The clerk was ordered to terminate all other pending motions as moot, close the cases, and return without filing any further documents Sivak submits in the closed cases.

Judge Araceli Martinez-Olguin’s order addressed filing-fee status and case closure; it did not decide the underlying matters described in the five actions.