Sivak v. Perea

Background

Lacey Sivak, an Idaho state prisoner who represented himself, filed the five above-captioned actions. In each action, the court denied his request to proceed without paying the filing fee under 28 U.S.C. § 1915(g). That statute bars a prisoner from proceeding without paying the fee after three or more qualifying prior dismissals unless the prisoner alleges a specific immediate danger of serious physical injury. The court found that Sivak had three or more prior dismissals and had not met the immediate-danger exception. It directed him to pay the full filing fee within 14 days or risk dismissal without prejudice.

Appeals and Jurisdiction

Sivak appealed instead of paying the filing fees. The court explained that an interlocutory appeal generally transfers authority over the issues being appealed to the court of appeals, but a notice of appeal from an interlocutory order is not treated as filed until the court of appeals permits the appeal. The Ninth Circuit had not granted permission, so the district court retained authority over these actions. The deadlines for paying the filing fees had passed.

Rulings

The court dismissed each of the five actions without prejudice. It stated that Sivak may file a motion to reopen any action after paying that action's full filing fee, and that a separate full fee is required for each action he wants to reopen and pursue.

The court also denied any pending motion for leave to proceed without paying the filing fee on appeal under 28 U.S.C. § 1915(g), for the same reasons it denied that status in the district court. The court noted that the Ninth Circuit would independently review the record if Sivak sought that status there. The clerk was ordered to terminate as moot all other pending motions, close the actions, and return without filing any further documents Sivak submitted in the closed actions. Judge Araceli Martinez-Olguin signed the order.