Seventh Circuit Lets Illinois Prisoner Proceed In Forma Pauperis, Despite Trust Account Balance Exceeding Filing Fee
by Douglas Ankney
On October 10, 2023, the U.S. Court of Appeals for the Seventh Circuit issued an opinion offering guidance to judges deciding whether to grant a prisoner’s motions to waive court filing fees and proceed in forma pauperis (IFP) on appeal.
Illinois prisoner Jordan Whitaker sought to waive fees and proceed IFP while appealing summary judgment granted to officials at Illinois’ Dixon Correctional Center on his claims that they “were deliberately indifferent to the risk that he would harm himself,” the Court recalled. Whitaker, who is mentally ill, alleged that he twice cut himself while in a crisis watch cell, even showing guards the homemade knife he planned to use. As his complaint recalled, guards refused Whitaker’s demand to see a crisis counselor, dismissing both his threat and the weapon—one guard named Dempsey allegedly replied, “I don’t give a shit, you’re not hurting me, you’re hurting your damn self.”
Whitaker filed suit pro se in the federal court for the Northern District of Illinois, which appointed counsel from Husch Blackwell LLP attorneys in Chicago. After it ruled in Defendants’ favor, Whitaker’s counsel filed notice of appeal along with an IFP motion, attaching a statement of his prison trust account for the previous six months, as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e.
The statement showed a balance of $45 on May 12, 2023; however, it also showed a balance of $573 just prior to filing notice of his appeal on January 6, 2023. Deposits totaling $282 were also made between those dates. Nearly all the money was spent in the prison commissary and some on postage. The district court denied the IFP motion, reasoning that “eligibility to proceed as a pauper depended on the litigant’s situation when the fee became due”—i.e., when he initiated his appeal. Whitaker then renewed his motion at the Seventh Circuit under Federal Rule of Appellate Procedure 24(a)(5).
Writing for the Court, Judge Diane P. Wood observed that “[t]he normal rule in federal court is that plaintiffs and appellants must prepay fees when initiating litigation,” citing 28 U.S.C. § 1914(c). PLRA then amended that with “a statutory formula” for prisoners’ IFP motions, Judge Wood recalled: “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,” with the balance of the fees collected “in installments based on 20% of the prisoner’s monthly income until the debt is paid,” all laid out now in 28 U.S.C. § 1915(b)(1)-(3). Filing a notice of appeal requires a $5 fee plus a $500 docketing fee, for a total fee of $505.
But Whitaker disputed whether the prison provided him “the necessities of life,” arguing that his commissary purchases included essential hygiene items he could get nowhere else. However, Judge Wood saw “no reason to weigh in on those questions.” She determined that even if Whitaker had spent none of the money in his account since filing notice of appeal—a total of $855—that “it would still demand too much to require him to prepay the $505 in full.” She noted that “Congress easily could have demanded that a prisoner put whatever he has toward a fee, and then pay any remainder later.” But it did not; instead, the law reflects “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,” the Court declared, noting that Congress expressed no “intent that the prisoner pay everything he has available” until he has five pending cases”—each requiring 20% of his balance, a calculation explained in Bruce v. Samuels, 577 U.S. 82 (2016). Moreover, there was no showing that Whitaker deliberately depleted his account to avoid payment or otherwise attempted to mislead the Court about his available funds, which was the case in Robertson v. French, 949 F.3d 347 (7th Cir. 2020). So there was no evidence that Whitaker was not bringing the appeal in good faith, as required under Pate v. Stevens, 163 F.3d 437 (7th Cir. 1998).
Accordingly, Whitaker’s IFP motion was granted and the district court instructed to assess an initial partial filing fee, notifying the Seventh Circuit when it had been collected. See: Whitaker v. Dempsey, 83 F.4th 1059 (7th Cir. 2023).
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login
Related legal case
Whitaker v. Dempsey
| Year | 2023 |
|---|---|
| Cite | 83 F.4th 1059 (7th Cir. 2023) |
| Level | Court of Appeals |
| Appeals Court Edition | F.4th |