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 Illinois prisoner, seeks leave to appeal in forma pauperis. He had

just enough money to pay in full the appellate filing and docketing fees when he filed 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 benefit of courts 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. § 1914(c); FED. R. APP. 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). 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 

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 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 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 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-month period preceding the date 

when 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 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 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 an 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 that 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 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 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 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 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 filing 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 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 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 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 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 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 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 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 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 collected.