Jordan Whitaker v. Michael Dempsey

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-1086
JORDAN WHITAKER,
Plaintiff-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 Il-
linois prisoner, seeks leave to appeal in forma pauperis. He had
just enough money to pay in full the appellate filing and dock-
eting fees when he filed the notice of appeal, and so the dis-
trict court denied the request. Whitaker now renews his mo-
tion with this court. FED. R. APP. P. 24(a)(5). Because the dis-
trict court did not adequately consider the balance the Prison
Litigation Reform Act (PLRA) struck between the need to col-
lect 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-
fit of courts considering similar requests in the future.
The normal rule in federal court is that plaintiffs and ap-
pellants must prepay fees when initiating litigation. See 28
U.S.C. § 1914(c); FED. R. APP. P. 3(e). Those who cannot afford
to prepay fees may move for leave to proceed in forma pau-
peris. 28 U.S.C. § 1915(a)(1). If the motion is successful, the
court will waive the prepayment requirement, though the lit-
igant continues to owe the fees. See Abdul-Wadood v. Nathan,
91 F.3d 1023, 1025 (7th Cir. 1996). To that end, the PLRA man-
dates that a court apply a statutory formula to any prisoner
bringing a case in forma pauperis and collect an initial partial
filing 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 ap-
peal is $505, comprised of a $5 fee for filing 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 judg-
ment on his claims that officials at Illinois’s Dixon Correc-
tional Center were deliberately indifferent to the risk that he
would harm himself. The district court entered final judgment
on December 12, 2022, and Whitaker filed a timely notice of
appeal on January 11, 2023, thus incurring the obligation to
pay $505. After some delay attributable to miscommunica-
tions 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 el-
igibility to proceed as a pauper depended on the litigant’s sit-
uation 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. Be-
cause 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 commis-
sary 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 filed the correct statements.
The statute requires statements “for the 6-month period immediately pre-
ceding the filing of the complaint or notice of appeal,” but Whitaker seems
to have provided statements for the 6-month period preceding the date
when he filed the statements. The district court should explore this dis-
crepancy to see if it affects the size of the initial partial filing 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 benefits. Nor could it, given
the diversity of financial 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 argua-
bly supports denial here—§ 1915(a)(1) requires the person to
show he is “unable to pay such fees” and Whitaker was liter-
ally able to pay the fees when he appealed. But the Supreme
Court has not read this language literally to require that liti-
gants put their last dollar toward a filing 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 afford neces-
sities, 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 filing fees above all
other expenses. Lumbert itself made that observation in up-
holding 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 reflected 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 filing
fee is limited to prisoners who have been granted leave to pro-
ceed 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 out-
lined. 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 file re-
flexively.” Bruce v. Samuels, 577 U.S. 82, 87 (2016) (quoting leg-
islative history). But no law pursues its goals at all costs, Luna
Perez v. Sturgis Pub. Sch., 598 U.S. 142, 150 (2023). Here, Con-
gress 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 re-
spected 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 filing fee fails to respect Congress’s com-
promise. Worse, it can lead to odd results that Congress likely
did not intend. For example, such a rule creates a sharp wel-
fare cliff: a prisoner with a consistent monthly income of $504
that he spent in full would need to pay only $100.80, 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 afford both fees. See
6 No. 23-1086
Miller v. Hardy, 497 F. App’x 618, 620–21 (7th Cir. 2012). A sim-
ilar 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 filing 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 for-
mula in § 1915(b) in mind, courts can defer these and other
conflicts until the prisoner has five 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 find a prisoner ineli-
gible 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 ac-
count 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 envi-
sioned.
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 certification
would be appropriate. The district court’s summary
No. 23-1086 7
judgment opinion reflects that it found the resolution of the
case to be difficult, even if it ultimately ruled against Whita-
ker. 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 filing fee for the appeal and to notify
this court when the partial fee has been collected.