Whitaker v. Dempsey, No. 23-1086 (7th Cir. 2023)
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Whitaker, an Illinois prisoner, had $573 when he filed a notice of appeal in his Section 1983 lawsuit; he subsequently spent most of his money at the prison commissary and on postage. The district court denied his request to proceed in forma pauperis, 28 U.S.C. 1915(a)(1).
The Seventh Circuit reversed. The district court did not adequately consider the Prison Litigation Reform Act (PLRA) balance between the need to collect fees and a prisoner’s discretionary use of his funds. The PLRA mandates that a court apply a statutory formula and collect an initial partial filing fee, then collect the remainder of the fees in installments. Whitaker had enough money to pay the fees in full when they were due and when this court sent him a notice informing him as much but the statute does not mandate that prisoners prioritize their filing fees above all other expenses. Drawing the line for in forma pauperis eligibility at the mere ability to pay the full fee can lead to odd, unintended results. There is nothing suggesting that Whitaker deliberately depleted his account to avoid payment. Whitaker should be permitted to prepay the prescribed portion of the fee with the rest to be collected from his future income, as Congress envisioned.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 23-1086 JORDAN WHITAKER, Plainti -Appellant, v. MICHAEL DEMPSEY, et al., Defendants-Appellees. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 18 CV 50373 — Philip G. Reinhard, Judge. ____________________ SUBMITTED JULY 24, 2023 — DECIDED OCTOBER 10, 2023 ____________________ WOOD, Circuit Judge, in chambers. Jordan Whitaker, an Illinois prisoner, seeks leave to appeal in forma pauperis. He had just enough money to pay in full the appellate ling and docketing fees when he led the notice of appeal, and so the district court denied the request. Whitaker now renews his motion with this court. FED. R. APP. P. 24(a)(5). Because the district court did not adequately consider the balance the Prison Litigation Reform Act (PLRA) struck between the need to collect fees and a prisoner’s discretionary use of his funds, I grant 2 No. 23-1086 Whitaker’s motion and provide this explanation for the bene t of courts considering similar requests in the future. The normal rule in federal court is that plainti s and appellants must prepay fees when initiating litigation. See 28 U.S.C. § 1914(c); FED. R. APP. P. 3(e). Those who cannot a ord to prepay fees may move for leave to proceed in forma pauperis. 28 U.S.C. § 1915(a)(1). If the motion is successful, the court will waive the prepayment requirement, though the litigant continues to owe the fees. See Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025 (7th Cir. 1996). To that end, the PLRA mandates that a court apply a statutory formula to any prisoner bringing a case in forma pauperis and collect an initial partial ling fee equal to 20% of the greater of the prisoner’s average monthly deposits or balances in the past six months, and then collect the remainder of the fees in installments based on 20% of the prisoner’s monthly income until the full debt is paid. 28 U.S.C. § 1915(b)(1)–(3). The current cost for bringing an appeal is $505, comprised of a $5 fee for ling a notice of appeal under 28 U.S.C. § 1917 and a $500 docketing fee under § 1913. Whitaker is appealing an adverse order of summary judgment on his claims that o cials at Illinois’s Dixon Correctional Center were deliberately indi erent to the risk that he would harm himself. The district court entered nal judgment on December 12, 2022, and Whitaker led a timely notice of appeal on January 11, 2023, thus incurring the obligation to pay $505. After some delay attributable to miscommunications between him and the district court, Whitaker moved for leave to proceed in forma pauperis and attached the prison trust No. 23-1086 3 account statement required by the PLRA. 1 28 U.S.C. § 1915(a)(2). The statement showed a current balance of $45 as of May 12, 2023, but on January 6—just before the notice of appeal—Whitaker had a balance of $573. Between those points, he had received $282 in additional deposits; he spent almost all his money at the prison commissary, with a small remainder going to postage. The district court denied the motion. It recognized that eligibility to proceed as a pauper depended on the litigant’s situation when the fee became due. See Robbins v. Switzer, 104 F.3d 895, 898 (7th Cir. 1997). And, it observed, Whitaker had enough money to pay the fees in full when they were due and when this court sent him a notice informing him as much. Because Whitaker, like other prisoners, received “the necessities of life” from the state, Lumbert v. Ill. Dep't of Corr., 827 F.2d 257, 260 (7th Cir. 1987), the court found that his past assets made him ineligible to proceed in forma pauperis. Although Whitaker disputes whether he truly receives the necessities of life from the prison and insists that the commissary is the only place where he can obtain essential supplies to maintain adequate hygiene, I see no reason to weigh in on those questions. Even if he had spent the roughly $850 over the relevant period on nonessentials or continued to possess 1 It appears that Whitaker may not have led the correct statements. The statute requires statements “for the 6-month period immediately preceding the ling of the complaint or notice of appeal,” but Whitaker seems to have provided statements for the 6-month period preceding the date when he led the statements. The district court should explore this discrepancy to see if it a ects the size of the initial partial ling fee or any other pertinent fact. 4 No. 23-1086 that full amount, it would still demand too much to require him to prepay the $505 in full. The in forma pauperis statute does little to specify where to draw the line of eligibility for its bene ts. Nor could it, given the diversity of nancial situations that might confront courts—the decision is therefore a discretionary one, within broad limits. See McWilliams v. Cook County, 845 F.3d 244, 246 (7th Cir. 2017). To be sure, the plain text of the statute arguably supports denial here—§ 1915(a)(1) requires the person to show he is “unable to pay such fees” and Whitaker was literally able to pay the fees when he appealed. But the Supreme Court has not read this language literally to require that litigants put their last dollar toward a ling fee. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). The Court there was worried about an appellant’s ability to a ord necessities, and that concern is certainly at least muted for those in state custody, as we noted in Lumbert. Nonetheless, it does not follow that prisoners must prioritize their ling fees above all other expenses. Lumbert itself made that observation in upholding a pre-PLRA local rule requiring a prisoner to pay only 50% of his average monthly income for the prior six months. 827 F.2d at 258–59. Congress tracked this local rule— and similar rules elsewhere, see In re Epps, 888 F.2d 964, 967 (2d Cir. 1989) (collecting cases)—when it passed the PLRA a few years later, though it elected to make the partial fee only 20% of the prisoner’s average income or average balance. For Whitaker, that might have amounted to less than $100 (based on the greater average balance re ected in his trust account statements), and Lumbert’s 50% of income rule would have asked for even less. No. 23-1086 5 Although the privilege of paying this initial partial ling fee is limited to prisoners who have been granted leave to proceed in forma pauperis, Newlin v. Helman, 123 F.3d 429, 432–33 (7th Cir. 1997), any decision whether to grant such leave should be informed by the potential result that Congress outlined. Consistent with this observation, we have suggested that even a prisoner with $2000 in assets might be eligible to proceed in forma pauperis—at least if he discloses those assets. See Kennedy v. Huibregtse, 831 F.3d 441, 443 (7th Cir. 2016). Congress easily could have demanded that a prisoner put whatever he has toward a fee, and then pay any remainder later. Such a rule would have furthered the goal of forcing prisoners to “think twice about the case and not just le re exively.” Bruce v. Samuels, 577 U.S. 82, 87 (2016) (quoting legislative history). But no law pursues its goals at all costs, Luna Perez v. Sturgis Pub. Sch., 598 U.S. 142, 150 (2023). Here, Congress adopted a compromise, obligating the prisoner to pay only 20% of his average income or balance, leaving up to 80% of his money for other uses. That compromise must be respected just as much as the law’s purpose is. Id. Drawing the line for in forma pauperis eligibility at the mere ability to pay the full ling fee fails to respect Congress’s compromise. Worse, it can lead to odd results that Congress likely did not intend. For example, such a rule creates a sharp welfare cli : a prisoner with a consistent monthly income of $504 that he spent in full would need to pay only $100.40, but a prisoner like Whitaker with a balance of a few dollars more would need to pay almost everything he has, regardless of his income. And if a prisoner were to have two cases at once—as he is certainly permitted, Pratt v. Hurley, 79 F.3d 601, 603 (7th Cir. 1996)–he might be deemed ineligible to proceed in forma pauperis in either case even if he cannot a ord both fees. See 6 No. 23-1086 Miller v. Hardy, 497 F. App’x 618, 620–21 (7th Cir. 2012). A similar concern exists here: shortly after entering judgment, the district court awarded the defendants $175.20 in costs. At no point after the judgment was Whitaker able to pay both those costs and the ling fees in full. By requiring Whitaker to pay the full fees at once, the district court placed Whitaker’s debt to the courts above his debt to his opponents, despite the PLRA mandating that both be collected in the same manner. 28 U.S.C. § 1915(f)(2)(B). By keeping the 20% payment formula in § 1915(b) in mind, courts can defer these and other con icts until the prisoner has ve cases, at which point it is Congress’s intent that the prisoner pay everything he has available. See Bruce, 577 U.S. at 90 (holding the 20% monthly payments are additive per case, not sequential). A court may well have discretion to nd a prisoner ineligible short of the point where the outcome of the statutory formula exceeds the full fee, but Whitaker’s income and assets are nowhere close to that limit. There is also nothing in the record to suggest that Whitaker deliberately depleted his account to avoid payment, which in any event would have been automatically deducted from his account, had the court granted his motion. See Robertson v. French, 949 F.3d 347, 353 (7th Cir. 2020). Absent such a concern, Whitaker should be permitted to prepay the prescribed portion of the fee with the rest to be collected from his future income, as Congress envisioned. The district court did not separately certify that Whitaker was not bringing his appeal in good faith under § 1915(a)(3). See Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000). My own review of the record does not convince me such a certi cation would be appropriate. The district court’s summary No. 23-1086 7 judgment opinion re ects that it found the resolution of the case to be di cult, even if it ultimately ruled against Whitaker. A good-faith appeal requires no more than that. See Pate v. Stevens, 163 F.3d 437, 439 (7th Cir. 1998). I therefore grant Whitaker’s motion for leave to proceed on appeal in forma pauperis. The district court is instructed to assess an initial partial ling fee for the appeal and to notify this court when the partial fee has been collected.
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