Sivak v. Parea

Background

Lacey Sivak, identified in the order as an Idaho state prisoner and frequent litigant, filed the five actions against Zahida Perea. Sivak represented himself. In each action, the court denied his request to proceed without paying filing fees under 28 U.S.C. § 1915(g). 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 action, and did not meet the standard for proceeding without paying fees as a prisoner with three prior dismissals, commonly called a “three-striker.”

The court directed Sivak to pay the full filing fee in each case within fourteen days or risk dismissal without prejudice. The order explains that the Prison Litigation Reform Act prevents a prisoner from proceeding without paying fees after three qualifying prior dismissals unless the prisoner shows imminent danger of serious physical injury.

Appeals and Jurisdiction

Sivak did not pay the filing fees. Instead, he appealed to the Ninth Circuit. The court explained that an interlocutory appeal—a mid-case appeal from an order that does not finally resolve the case—generally transfers authority over the appealed issues to the court of appeals. But an interlocutory appeal is not treated as filed until the court of appeals permits it. Because the Ninth Circuit had not granted Sivak permission to bring these appeals, the district court retained authority over the actions.

The deadline for paying the filing fee had passed in each case. The order also states that the Ninth Circuit had issued identical orders dismissing many of Sivak’s interlocutory appeals as too insubstantial to warrant further review, but those other proceedings were not the basis for the specific dismissals ordered here.

Ruling

Judge Araceli Martinez-Olguin dismissed each of the five actions without prejudice. The order states that Sivak may pay the full filing fee and then file a motion to reopen a case, but a separate full filing fee is required for each case he wants to reopen and pursue.

The court also denied any pending motion for permission to proceed without paying fees on appeal under 28 U.S.C. § 1915(g), for the same reasons it had denied that status in the district court. The order states that the Ninth Circuit would independently review the record if Sivak requested fee-waiver status there and would decide whether to grant it. If the Ninth Circuit denied that status, Sivak would still be required to pay the entire filing fee and show why the appeal should not be dismissed as frivolous.

Finally, the clerk was directed to terminate all other pending motions in each case as moot, close all five cases, and return without filing any additional documents Sivak submitted in the closed cases.