### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 23-1086 J ORDAN W HITAKER , Plaintiff -Appellant ,

v.

M ICHAEL D EMPSEY , et al. , Defendants

- Appellees

.

____________________ Appeal from the United States District Court for the Northern District of Illinois , Western Division. No. 18 C V 50373 — Philip G. Reinhard , Judge

.

____________________
S UBMITTED J ULY 24, 2023

— D ECIDED O CTOBER 10, 2023

____________________ W OOD , Circuit Judge
, in chambers

. Jordan Whitaker, an Illinois prisoner, seeks leave to appeal in forma pauperis . H e had just enough money to pay in full the appellate filing and docketing fee s when he filed the notice of appeal , and so the district court denied the request . Whitaker now renews h is motion with this court . F ED

. R. A PP

. 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 grant2 No. 23-1086

Whitaker’s motion and provide this explanation for the benefit of court s considering similar requests in the future.
The normal rule in federal court is that plaintiffs and appellants must prepay fees when initiating litigation. See 28 U.S.C. § 1 914 (c) ; F ED

. R. A PP

. P. 3(e). Those who cannot afford
to prepay fees may move for leave to proceed in forma pauperis

. 28 U.S.C. § 1915(a)(1). I f the motion is successful, thecourt will waive the prepayment requirement, though the litigant continues to owe the fee s. 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 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 fee s 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 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 judgment on his claims that officials at Illinois’s Dixon Correctional 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 1 1 , 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 trustNo. 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 tho se 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 depend ed 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 fee s in full when they were due and when this court sent him a notice informing him as much . Because Whitaker, like other prisoners , received “t he 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 hyg iene, I see no reason to weigh in on th ose question s. 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 preceding the filing of the complaint or notice of appeal,” but Whitaker seems to have provided statements for the 6

- mo nth period preceding the datewhen he filed the statements. The district court should explore this discrepancy 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 f ull

. 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 li mits. See McWilliams v. Cook C ou nty , 845 F.3d 244, 246 (7th Cir. 2017) . T o be sure, t he 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 filing fee. Adkins v. E.I. DuPont de Nemours & Co. , 335 U.S. 331, 339 (1948). The Court there was worried about a n appellant’s ability to afford necessities, and that concern is certainly at least muted for those in state custody, as we noted in Lumbert . Nonetheless, it does not follow tha t prisoners must prioritize their filing 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 amount ed 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 l ess.No. 23-1086 5

Although t he privilege of pay ing this initial partial filing 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 leas t if he discloses those assets

. See Kennedy v. Huibregtse , 831 F.3d 441, 443 (7th Cir. 2016)

. C ongress 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 forcingprisoners to “think twice about the case and not just file reflexively.” 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 a dopted 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 filing fee fails to respect Congress’s compromise . Worse, it c an lead to odd results that Congress likely did not intend

. For example, s uch a rule create s a sharp welfar e cliff: 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 dollar s more would need to pay almost everything he has, regardless of his income

. And i f 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) –h e might be deemed ineligible to proceed in forma pauperis in either case even if he cannot afford both fees. See6 No. 23-1086

Miller v. Har dy , 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 $17 5.20 in costs. At no point after the judgment was Whitaker able to pay both those
costs and the filin g fees in full

. By requiring Whitaker to pay the full fee s at once , the district court placed Whitaker’s debt to the court s above his debt to his opponent s , despite the PLRA mandating that both be collected in the same manner. 28 U.S.C. § 1915 (f)(2)(B). By k eeping the 20% payment formula 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 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 no thing in the record to suggest that Whitaker deliberately depleted his account to avoid payment, which in any event w ould 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 p ortion of the fee with the rest to be collected from his future income , as Congress envisioned.

T he 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 summaryNo. 23-1086 7

judgment opinion reflects that it found the resolution of the

case to be difficul t , 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 filing fee for the appeal and to notify this court when the partial fee has been c ollected.