                            NONPRECEDENTIAL DISPOSITION
                             To be cited only in accordance with
                                      Fed. R. App. P. 32.1



            United States Court of Appeals
                                   For the Seventh Circuit
                                   Chicago, Illinois 60604

                                Submitted September 19, 2012*
                                  Decided December 3, 2012

                                           Before

                            FRANK H. EASTERBROOK, Chief Judge

                            ANN CLAIRE WILLIAMS, Circuit Judge

                            DAVID F. HAMILTON, Circuit Judge


Nos. 11-2365 & 11-2469
                                                 Appeals from the United States District
RYAN MILLER,                                     Court for the Northern District of Illinois,
     Plaintiff-Appellant,                        Eastern Division.

       v.                                        Nos. 11 C 1127 & 11 C 2151

MARCUS HARDY, et al.,                            Samuel Der-Yeghiayan,
    Defendants-Appellees.                        Judge.

                                         ORDER
        In these consolidated appeals, Illinois inmate Ryan Miller challenges the dismissals
of his separate lawsuits filed under 42 U.S.C. § 1983. In both actions the district court
denied Miller’s application to proceed in forma pauperis (or “IFP”) and then dismissed the
suit when he failed to pay the filing fee. We conclude that the court abused its discretion.




       *
        After examining the appellant’s brief and the record, we have concluded that oral
argument is unnecessary. Thus, these appeals are submitted on the appellant’s brief and
the records. See FED. R. APP. P. 34(a)(2)(C).
Nos. 11-2365 & 11-2469                                                                     Page 2

        Miller filed both lawsuits in early 2011 claiming unconstitutional conditions of
confinement at Stateville Correctional Center. The first suit stems from a four-day period in
September 2010 when his cell was without running water. The second concerns peeling
paint, contaminated water, black mold, inadequate space, and birds loose inside the prison.

        The district judge denied Miller’s application to proceed IFP and dismissed his first
lawsuit because Miller had not used the form IFP application and financial affidavit
prescribed by local rule in the Northern District of Illinois. See N.D. Ill. R. 3.3(c). The judge
advised Miller that he could seek to reinstate the action either by paying the $350 filing fee
within a month or by reapplying for IFP using the prescribed forms. Miller chose the latter
option. He reported that his only income was a $10 monthly payment from the Illinois
Department of Corrections but acknowledged receiving two cash gifts totaling $550 about
four months before he filed his complaint. These gifts, according to Miller, had been rare
events and would “never happen again.” He also submitted a transaction statement for his
inmate trust account showing that his balance was about $54 when he filed his lawsuit and
that he had spent $532.73 at the prison’s commissary and another $40 on music and a
magazine subscription during the previous six months. A prison employee certified that
Miller’s monthly deposits had averaged $101.22 during those months. The district court
again denied IFP and also denied Miller’s motion to reinstate the action, finding that he
was “not sufficiently indigent” because he had received the cash gifts after his claim arose
and therefore could have paid the full filing fee. Miller moved for reconsideration,
explaining that he already had spent his gift money when he decided to file his lawsuit.
The court denied this motion also, reasoning that Miller’s explanation came too late and
that his decision to spend his money on “non-necessities of life” did not entitle him to
proceed IFP.

       Miller’s second lawsuit was filed about a month after the first, and after he had
resubmitted his IFP application in the first suit. His IFP application in the second suit
essentially duplicated the revised application from the first suit. Once again the district
court pointed to Miller’s receipt of $550 in gifts and, on that basis, concluded that he was
not “sufficiently indigent to warrant granting” IFP. Once again he was given a month to
pay the filing fee, and when he did not, the court dismissed the action.

        On appeal Miller argues that the district court erred by finding that he was not
indigent despite the fact that he had very little income and insufficient funds in his trust
account. We agree. An inmate litigant who spends his money on other things after filing a
complaint may not proceed without paying the initial partial filing fee assessed by the
court, see 28 U.S.C. § 1915(b)(1); Robbins v. Switzer, 104 F.3d 895, 898 (7th Cir. 1997), but
Miller filed these suits months after spending the bulk of the cash gifts. The district court
did not cite (and the appellees do not identify) any authority for the proposition that an
Nos. 11-2365 & 11-2469                                                                      Page 3

inmate cannot be indigent simply because he had enough money to pay a filing fee at some
point after his claim arose. The relevant inquiry is the state of the inmate’s finances at the
time of filing. See, e.g., Robbins, 104 F.3d at 898 (explaining that inmate’s “current poverty
would not authorize continuation” of action “if he had the resources to comply with the
statute at the time the Act called for payment”); Agyeman v. I.N.S., 296 F.3d 871, 886 (9th
Cir. 2002) (“If the prisoner lacks the means to pay the fee at the time of filing, the PLRA
provides for assessment and subsequent collection of the fees as funds become available to
him.”); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002) (“For prisoners unable to pay the
filing fee at the time of filing, the statute provides for the assessment and, when funds exist,
the collection of an initial fee.” (internal quotation marks omitted)); see also Martinez v. Kristi
Kleaners, Inc., 364 F.3d 1305, 1307 (11th Cir. 2004) (“When considering a motion filed
pursuant to § 1915(a), the only determination to be made by the court . . . is whether the
statements in the affidavit satisfy the requirement of poverty.” (citation and internal
quotation marks omitted)).

        The district court’s understanding that Miller had the financial resources to pay two
filing fees in full is refuted by the record; if he had spent nothing more in the four months
after receiving his gifts, Miller would have saved $625, well short of the $700 the court
expected him to pay. Moreover, even if we ignore the second lawsuit, the statutory formula
would have required assessing an initial partial filing fee of just $90.22 if, when Miller filed
his complaint, he had been found indigent and his account balance had included the entire
$625. Miller may have been shortsighted, and he may not have spent wisely if possible
litigation was on the horizon. But that is why the statute penalizes spendthrifts by looking,
when it’s time to calculate an initial partial filing fee, not at the inmate’s current account
balance but at the higher of the average monthly balance or average monthly deposits for
the six months before the lawsuit was initiated. See 28 U.S.C. § 1915(b)(1); Roller v. Gunn,
107 F.3d 227, 233 (4th Cir. 1997) (“Requiring prisoners to make economic decisions about
filing lawsuits does not deny access to the courts; it merely places the indigent prisoner in a
position similar to that faced by those whose basic costs of living are not paid by the state.”
(citing Lumbert v. Illinois Dept. of Corrections, 827 F.2d 257, 259 (7th Cir. 1987)).

        It is true that § 1915 does not compel a district court to permit an indigent prisoner
to proceed without prepayment of fees, Campbell v. Clarke, 481 F.3d 967, 969 (7th Cir. 2007),
and thus an inmate who attempts to evade paying fees may forfeit the privilege of
proceeding IFP so as not to profit from his deception. See Campbell, 481 F.3d at 969; Reneer v.
Sewell, 975 F.2d 258, 261 (6th Cir. 1992); Collier v. Tatum, 722 F.2d 653, 655–56 (11th Cir.
1983); Evans v. Croom, 650 F.2d 521, 525 (4th Cir. 1981). But here the district court did not
suggest that Miller intended by his commissary purchases to avoid the obligation to prepay
the filing fees in his lawsuits. Nor did the court give Miller the opportunity to explain his
Nos. 11-2365 & 11-2469                                                                   Page 4

withdrawals, which, in opinions issued before the Prison Litigation Reform Act, some
appellate courts had made a prerequisite to denying IFP status to an indigent plaintiff on
the basis of willful evasion. See Collier v. Tatum, 722 F.2d 653, 655–56 (11th Cir. 1983); Evans
v. Croom, 650 F.2d 521, 525–26 (4th Cir. 1981). Thus, on the record before us, there is no basis
to conclude that Miller forfeited the opportunity to proceed IFP.

       The judgments dismissing Miller’s lawsuits are VACATED, and the cases are
REMANDED for further proceedings consistent with this order. On remand, the district
court should assess and begin collecting an initial partial filing fee for each of Miller’s
lawsuits using the procedures set out in 28 U.S.C. § 1915(b)(1). Although the required
prepayments may exceed his current account balance, Miller may not proceed until these
fees have been paid.
