                        NONPRECEDENTIAL DISPOSITION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 January 7, 2020
                              Decided February 19, 2020

                                         Before

                      DIANE P. WOOD, Chief Judge

                      ILANA DIAMOND ROVNER, Circuit Judge

                      DAVID F. HAMILTON, Circuit Judge

No. 18-2816

KENDRICK BUTLER,                               Appeal from the United States District
    Plaintiff-Appellant,                       Court for the Central District of Illinois.

      v.                                       No. 1:15-cv-1102-JBM

ADAM DEAL,                                     Joe Billy McDade,
    Defendant-Appellee.                        Judge.

                                       ORDER

       This appeal raises the question whether the parties to a case reached an
enforceable settlement agreement. Kendrick Butler, a prisoner in Illinois’s Pontiac
Correctional Center, had filed a claim against correctional officer Adam Deal for using
excessive force while handcuffing him. After the parties had engaged in some
exchanges about possible settlement of the dispute, the district court held an
evidentiary hearing and determined that they had done so. It then entered an order

      
        We have agreed to decide the case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 18-2816                                                                          Page 2

enforcing the agreement it understood them to have reached. We conclude, however,
that the court acted under a misapprehension of what terms could be on the table, and
that it acted prematurely. We therefore vacate its judgment and remand for further
proceedings.
        In the underlying action, Butler complained that Deal had inflicted unnecessary
pain in the course of handcuffing him. Deal was putting handcuffs on Butler in
connection with a scheduled cell transfer. But in so doing, Deal allegedly had ignored
Butler’s protestations of pain caused by the impact of the handcuffs on a cyst on his
right wrist and an injured left wrist; Deal had then twisted and tightened Butler’s cuffs
until they cut off his circulation. Butler’s wrists were numb for two days afterward.
       Butler sued Deal under 42 U.S.C. § 1983 for deliberate indifference and excessive
force in violation of the Eighth Amendment. The court entered summary judgment in
Deal’s favor on the deliberate indifference claim, but it allowed Butler to pursue his
excessive force claim.
        At the final pretrial conference on August 3, 2018, the court urged the parties to
settle the claim. During a recess, the judge’s courtroom deputy apparently asked, on
behalf of the parties, whether the court would be willing to waive Butler’s filing fee to
encourage Butler to settle. (Butler was proceeding in forma pauperis and was thus
entitled to pay his $400 filing fee in installments pursuant to 28 U.S.C. § 1915(b)(1).) The
court said that it would do so. Neither party, at this juncture, called to the court’s
attention the part of section 1915(b)(1) that says “[n]otwithstanding subsection (a)
[which addresses litigation without prepayment of fees], if a prisoner brings a civil
action or files an appeal in forma pauperis, the prisoner shall be required to pay the full
amount of a filing fee.” The court indicated that it would waive the $400 fee in order to
facilitate a settlement agreement. At that point, the court stated that the parties had
until August 10 to file a notice of settlement with the court.
        The parties negotiated through the following week, but on August 10, counsel
for Deal informed the court that they had failed to settle the case despite their best
efforts. The court decided to look into matters more carefully, however, and so it
scheduled a status conference for August 13, 2018, to explore the state of the settlement
process. At that conference, the court shifted gears and decided to see whether a
binding settlement agreement had already been entered, despite the parties’ position to
the contrary.
       Deal’s lawyer, Mia Buntic, testified first. She said that Butler initially demanded a
sum between $500 and $600, but after the court offered to waive the $400 filing fee,
Butler agreed to drop his minimum to $300. Buntic then explained that she took the
No. 18-2816                                                                        Page 3

$300 offer to Deal, who accepted on the understanding that the filing fee waiver was
part of the package. But when she called Butler to tell him of Deal’s acceptance, Butler
refused to approve the settlement, saying that he learned that he could likely settle for
more money. For his part, Butler denied that his admitted reference to $300 was part of
any settlement offer.
       The court, applying Illinois law regarding the enforceability of settlement
agreements, determined that the case had been settled. It found that Butler had
conveyed to Buntic that “in addition to waiver of the filing fee, his bott[om] line
minimum was $300 to settle this case,” and that Buntic had obtained the approval
necessary to settle the case. The court discredited Butler’s testimony that he believed he
was still negotiating a settlement:
       Butler admitted during his testimony at the [] hearing, that he advised
       Ms. Buntic that he wanted between $500 and $600 in order to settle the case.
       Butler further admitted that he agreed to ask the Court to waive the filing
       fee in order to facilitate the settlement. When one combines the settlement
       payment of $300 with the balance of the filing fee of $400 owed by Butler in
       this case, that total amount exceeds the amount that Butler indicated for
       which he would be willing to settle this case.
The court then sua sponte entered an order enforcing this agreement.
       On appeal Butler argues that the district court erred in enforcing the settlement
agreement because the parties had different understandings of the terms discussed in
the settlement negotiation.
       We agree with Butler that the essential terms of a settlement agreement must be
definite and certain for it to be enforceable. See Lewis v. School Dist. #70, 648 F.3d 484,
486 (7th Cir. 2011) (interpreting Illinois law). The problem with the terms here,
however, is not the parties’ mutual misunderstanding, though it is troubling that
neither party thought the case had been settled as of August 10. But the settlement
discussions were conducted in part using a currency that was unavailable to the
parties—Butler’s obligation to pay his filing fee. Nothing would have prevented Deal
from promising to cover that, but that would have meant promising to give Butler $700
($300 plus the $400 filing fee), not just $300. We have no reason to think that Deal would
have accepted that arrangement. The statute, however, forbids outright forgiveness of
the obligation to pay the filing fee. See Maus v. Baker, 729 F.3d 708, 709 (7th Cir. 2013)
(addressing appellate filing fees under the same statute); see also Pinson v. Samuels,
761 F.3d 1, 4 (D.C. Cir. 2014). Courts may allow a plaintiff proceeding in forma pauperis
No. 18-2816                                                                         Page 4

to pay the fee in monthly installments, but they lack statutory authority to waive the fee
altogether. See Maus, 729 F.3d at 709.
        In passing the Prison Litigation Reform Act and eliminating the possibility that a
prisoner might be able to litigate for “free,” Congress meant to create an incentive
against bringing frivolous lawsuits. See 141 CONG. REC. S7524–25 (daily ed. May 25,
1995) (statement of Sen. Dole). Although the financial burden of paying the filing fee in
installments may not seem great, it takes a substantial bite out of a prisoner’s account,
and this is just what Congress had in mind. See id. at S7525; Skinner v. Switzer, 562 U.S.
521, 535–36 (2011). In sum, the district court did not have the authority to induce Butler
to settle by foregoing the collection of the required filing fee.
        There is nothing on this record to support the idea that the different parts of the
alleged settlement agreement are severable. If the parties agreed to anything, they
agreed to a package deal: a payment of $300 from Deal to Butler, and the elimination of
Butler’s $400 debt to the court. Since the court lacked authority to order the latter, the
agreement as a whole falls apart. The filing-fee waiver is unenforceable, and in Illinois,
if an “unenforceable term is an essential part of the contract, the contract is not
severable and the entire contract is void.” Kepple & Co., Inc. v. Cardiac, Thoracic and
Endovascular Therapies, S.C., 920 N.E. 2d 1189, 1193 (Ill. App. 2009). We conclude,
therefore, that even if the district court was correct to determine that the parties had
agreed to the $300 payment and the $400 fee forgiveness, it was not authorized to fulfill
its part of that bargain.
       The judgment is VACATED and this case is REMANDED to the district court for
further proceedings.
No. 18-2816                                                                            Page 5

        HAMILTON, Circuit Judge, dissenting. I respectfully dissent. The district court’s
decision not to pursue collection of the filing fee is not a jurisdictional issue that we are
obliged to raise ourselves on appeal. After remand, further efforts on this case by both
defense counsel and the district court will impose costs on public resources that will
quickly dwarf the uncollected filing fee in the district court. We should affirm the
district court’s decision enforcing the parties’ settlement and putting this case to rest.
