Charles Sultan v. James Fenoglio

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1376
C HARLES S ULTAN ,
Plaintiff-Appellant,
v.
JAMES F ENOGLIO, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 12-cv-1229-MJR-SCW — Michael J. Reagan, Chief Judge.
____________________
S UBMITTED DECEMBER 11, 2014*— DECIDED J ANUARY 5, 2015
____________________
Before WOOD, Chief Judge, and F LAUM and R OVNER , Cir-
cuit Judges.
W OOD, Chief Judge. Charles Sultan, an Illinois inmate, as-
serts in this lawsuit that medical providers and other staff at
the Lawrence Correctional Center forced him to live in un-
* After examining the briefs and record, we have concluded that oral
argument is unnecessary. The appeal is thus submitted on the briefs and
record. See FED . R. A PP. P. 34(a)(2).

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2 No. 14-1376
sanitary conditions and denied him medical care in violation
of the standards required by the Eighth Amendment, as it
applies to the states. More than a year after his suit was filed,
and while the defendants’ motions for summary judgment
were pending, the district court on its own initiative dis-
missed the case on the ground that Sultan had not paid the
initial partial filing fee that the court had assessed pursuant
to 28 U.S.C. § 1915(b)(1). We conclude that the court should
not have taken this step, and we thus remand for further
proceedings.
At the time Sultan filed his complaint in December 2012,
he moved to proceed in forma pauperis. As required by 28
U.S.C. § 1915(a)(2), he attached a certified statement from his
prison trust account showing the “funds available” and
charges made during the previous six months. The state-
ment revealed that his account was more than $300 in the
red. The district court granted Sultan’s motion and assessed
an initial partial filing fee of $2.02. (Presumably the court set-
tled on this number because it is approximately 20% of the
average monthly deposits to Sultan’s account; he earns $10
per month from a prison job. See 28 U.S.C. § 1915(b)(1)(A).)
Apparently because Sultan’s account had less than zero
dollars in it, the prison did not remit the required $2.02 to
the district court. In November 2013, a magistrate judge en-
tered a minute order directing Sultan to show cause why the
action should not be dismissed for failure to pay. Sultan re-
sponded that he did not control his prison trust account and
that it was the account administrator at Lawrence who was
at fault for not forwarding payment. He also informed the
magistrate judge that his daughter had tried to wire the
money through Western Union. Sultan tendered an updated

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No. 14-1376 3
statement from his prison trust account, a grievance he sub-
mitted to prison administrators complaining that staff had
not complied with the district court’s order to send the fee,
and a Western Union receipt showing payment of $2.25 to
“District Court 49 3 03.” Telling Sultan that the responsibility
for paying rested with him, the magistrate judge rejected
Sultan’s response as “unavailing.” The judge also informed
Sultan that the Western Union receipt did not qualify as
proof of payment. He gave Sultan another 30 days, until
February 3, 2014, to pay the fee.
Before that deadline, Sultan filed a motion seeking 30
more days to pay. He explained again that he could not con-
trol disbursements from his trust account (by then even
more deeply in the hole), and he pleaded that he needed
more time to request payment from that account. He later
sent a copy of a form entitled “Offender Authorization for
Payment” dated January 14, which had been returned
stamped “insufficient funds.” Sultan’s account statement
shows that indeed he lacked sufficient funds to pay the $2.02
fee on January 14. On January 17, Sultan received a “payroll
adjustment” of $9.52, but for unexplained reasons the ac-
count administrator did not apply that amount against Sul-
tan’s deficit. For the next six weeks at least, $2.02 may have
been available to send to the clerk of the court.
The magistrate judge did not rule on Sultan’s motion un-
til two days after the February 3 deadline. At that point he
denied it on the ground that Sultan had not shown good
cause for an extension. The next day the district court dis-
missed Sultan’s suit with prejudice for failure to prosecute.
The court reasoned that Sultan had not “denied having the
requisite funds.” Sultan timely moved for reconsideration,

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4 No. 14-1376
which the district judge denied. The court mistakenly assert-
ed that it could not rule on Sultan’s motion because he al-
ready had filed a notice of appeal from the dismissal. See
F ED. R. A PP . P. 4(a)(4)(B)(i); Katerinos v. U.S. Dep't of Treasury,
368 F.3d 733, 737 (7th Cir. 2004). In any event, it added, Sul-
tan had not shown a manifest error “or any other ground
justifying Rule 59(e) relief.” That very day, Sultan’s $2.02
payment arrived at the courthouse.
Sultan argues on appeal that the court abused its discre-
tion by dismissing his suit. We agree with him. We begin
with the fact that he is not entitled on his own to disburse
funds from his prison trust account. This is a well-
recognized fact; prison trust “accounts” are not like bank ac-
counts in which the depositor has the contractual status of
creditor. See Thomas v. Butts, 745 F.3d 309, 313 (7th Cir.
2014); Wilson v. Sargent, 313 F.3d 1315, 1320–21 (11th Cir.
2002); Hatchet v. Nettles, 201 F.3d 651, 652 (5th Cir. 2000). Nor
to our knowledge is there any rule of priority that requires
state administrators to remit payments to a federal court be-
fore they satisfy an inmate’s debt to the prison itself. (We
wondered in an earlier case whether the prison might be lia-
ble if it fails to comply with a judicial order under the Prison
Litigation Reform Act. Lucien v. DeTella, 141 F.3d 773, 776
(7th Cir. 1998); compare Hall v. Stone, 170 F.3d 706, 708 (7th
Cir. 1999) (holding federal warden in contempt for failing to
remit comparable payment). As we did in Lucien, however,
we can reserve this question for another day, because we
have a more straightforward way to resolve the present
case.) We note, however, that there is actually a systemic
problem in prison lawsuits like Sultan’s: the law requires the
payor (the prison) to process a drawer’s request for payment
to permit the drawer to sue the payor. No such conflict of

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No. 14-1376 5
interest plagues ordinary commercial transactions. Even as-
suming that the prison is willing to put the court’s order for
payment somewhere in the queue of Sultan’s creditors, it is
entirely predictable that the prison will prefer to postpone
Sultan’s ability to pursue litigation against itself.
Sultan therefore should not be penalized because the
prison administrators failed to forward the $2.02 as directed
by the court’s order. He did all that he could when he sent
prison administrators a form requesting payment from his
account, and he filed grievances when they took no action.
See Wilson, 313 F.3d at 1321; Hatchet, 201 F.3d at 654.
There is another, deeper problem with the district court’s
action: it conflicts with the statute. Section 1915(b)(4) pro-
vides that “[i]n no event shall a prisoner be prohibited from
bringing a civil action or appealing a civil or criminal judg-
ment for the reason that the prisoner has no assets and no
means by which to pay the initial partial filing fee.” This
court has addressed the meaning of that language as it ap-
plies to appeals, but the principles we articulated apply
equally to cases in the district court:
If, when a prisoner files his appeal, the balance of his
trust account is zero, the case proceeds despite the
lack of payment. But when a prisoner does not adhere
to the statutory system, a court may dismiss the ap-
peal without regard to his ability (or inability) to pay.
For example, if the prisoner does not furnish a state-
ment of his trust account, we issue an order requiring
him to do so within 21 days—with a warning that un-
less the information and requisite payment are forth-
coming, we will dismiss the appeal for want of prose-
cution (but without relieving the prisoner of the obli-

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6 No. 14-1376
gation to pay up eventually, for that obligation is in-
curred, as it is for a solvent litigant, by the act of filing
the notice of appeal). If the prisoner sends a trust ac-
count statement showing that even partial payment is
not required, then the appeal proceeds under
§ 1915(b)(4), but if the prisoner disdains to comply
with the order, the appeal ends.
Robbins v. Switzer, 104 F.3d 895, 897–98 (7th Cir. 1997). A bal-
ance of minus $300 counts, for this purpose, as a balance of
zero. When Sultan filed his complaint in December 2012, he
had less than zero funds available. He complied with the
remainder of the statute, however, by furnishing the certi-
fied statement of his trust account. See also Thomas, 745 F.3d
at 312; Cosby v. Meadows, 351 F.3d 1324, 1327 (10th Cir. 2003);
Taylor v. Delatoore, 281 F.3d 844, 850 (9th Cir. 2002).
The district court might have thought that the moment
Sultan had $9.52 in his account (January 17, 2014), it could
demand that he turn over the $2.02 partial payment. But that
position would be in tension with the statutory provision
limiting the duty of prison administrators to forward pay-
ments from the account to “each time the amount … exceeds
$10 … .” 28 U.S.C. § 1915(b)(2). It is possible to read that lan-
guage as addressing only the monthly payments following
the initial partial payment. See, e.g., Wilson, 313 F.3d at 1320;
Hatchet, 201 F.3d at 653; see also Roller v. Gunn, 107 F.3d 227,
233 (4th Cir. 1997) (interpreting this part of the statute as a
means of ensuring that prisoners need not “totally deprive
themselves of those small amenities of life” as the price of
suing). But such a narrow reading is not compelled by the
language of the statute, and we can see no policy that would
be served by refusing to apply it to initial payments.

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No. 14-1376 7
Our view would be different if there were evidence that
Sultan was intentionally depleting his trust account to avoid
paying his filing fee. See Thomas, 745 F.3d at 312; Wilson, 313
F.3d at 1321 n.7. If that were happening, the district court
would be entitled to deny in forma pauperis status based on
28 U.S.C. § 1915(a)(3). But Sultan appears to have spent his
funds (and incurred charges) at the prison law library and
for legal postage, which by regulation Illinois allows without
a set limit. 20 I LL. A DMIN . C ODE § 430.40(b); Turner-El v. West,
811 N.E.2d 728, 734 (Ill. App. Ct. 2004). As we noted earlier,
Sultan was earning about $10 each month from a prison job,
but that money eventually went toward his legal charges,
not for nonessential items. See Cosby, 351 F.3d at 1333–34 (af-
firming dismissal when prisoner spent funds at prison can-
teen instead of paying filing fee). We do not know why the
account administrator did not forward $2.02 as soon as it be-
came available, but we do not see evidence that Sultan frus-
trated payment. To the contrary, the record suggests that he
explored several ways to comply with the court’s order. His
grievance indicates that he may have thought that a with-
drawal of the $2.02 already had been authorized. Yet after
receiving the order to show cause, he submitted a new form
requesting payment in January 2014. Prison authorities re-
turned that form stamped “insufficient funds” instead of
sending the money to the court when Sultan’s paycheck hit
the account three days later. Meanwhile, Sultan also had
asked his daughter to pay the fee for him through Western
Union, and although she initially may have filled out the
paperwork incorrectly, the payment ultimately went
through. Had the court given Sultan another 30 days as re-
quested, the money would have arrived within that time.

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8 No. 14-1376
One matter remains. Sultan argues in his reply brief that
it was an abuse of discretion for the district court not to re-
cruit pro bono counsel. But Sultan waived this argument by
omitting it from his opening brief. See Nationwide Ins. Co. v.
Cent. Laborers' Pension Fund, 704 F.3d 522, 527 (7th Cir. 2013);
Hernandez v. Cook Cnty. Sheriff's Office, 634 F.3d 906, 913 (7th
Cir. 2011). In any event, Sultan’s motions for appointment of
counsel were denied without prejudice, and he may renew
his request for counsel after the matter is returned to the dis-
trict court.
Accordingly, we VACATE the dismissal and R EMAND the
case for further proceedings consistent with this opinion.

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