In Forma Pauperis Filings

In Forma Pauperis Filings aetrahan Fri, 04/28/2023 - 13:44

Peter Finney, III is a law clerk in the United States District Court for the Eastern District of Louisiana (2023–2024) and a graduate from Loyola University New Orleans College of Law (J.D., 2023). Davida Finger, Clinic Professor at Loyola University New Orleans College of Law & Director of the Law Clinic & the Gillis Long Poverty Law Center, supervised the development of this chapter of the manual.

The material in this chapter is current through April 17, 2023.

1 Introduction

1 Introduction aetrahan Fri, 04/28/2023 - 13:46

All litigants deserve their day in court. The right to access the judicial system is supported by lofty frameworks found within federal and state constitutions.1  Despite the breadth of these constitutional provisions (and broad statutory protections designed to give low-income litigants access to the courts), real-world practicalities limit litigant access. Chiefly, the lack of adequate financial resources bars the courthouse doors to many would-be litigants.

In 2021, 37.9 million people in the United States—11.6% of the population—lived in poverty.2  A higher proportion of people in Louisiana live in poverty than in all but one other state.3  One scholar recently presented the stark reality: “Forty percent of American adults report not having the savings to cover a $400 emergency—the same amount it costs to file a case in federal court.”4

To prevent court access from being merely a right on paper for those lacking financial means, federal and state legislation has long provided litigants with the ability to proceed in forma pauperis (IFP). From the Latin “in the form of the pauper,”5  IFP status permits “a litigant to proceed without prepayment of costs or furnishing of bond.”6  Nearly a century ago, the Court of Appeal of Orleans Parish summarized the legislation’s purpose: “It is essentially the poor man’s legislation, without which the remedies afforded him by law would be vain and useless.”7

  • 1On these constitutional provisions, see Section 2.
  • 2 Joseph Dalaker, Cong. Rsch. Serv., R47354, Poverty in the United States in 2021 at 1 (2022).
  • 3Id. at 13 (reporting Louisiana’s 17.3% poverty rate as second only to Mississippi’s 18.1%).
  • 4Andrew Hammond, Pleading Poverty in Federal Court, 128 Yale L.J. 1478, 1481 (2019).
  • 5Martin v. Martin, 39,631, p. 11 (La. App. 2 Cir. 5/18/05), 903 So. 2d 619, 625.
  • 6Benjamin v. Nat’l Super Markets, Inc., 351 So. 2d 138, 140 (La. 1977); see also La. C.C.P. art. 5181 (“[A]n individual who is unable to pay the costs of court because of his poverty and lack of means may prosecute or defend a judicial proceeding in any trial or appellate court without paying the costs in advance or as they accrue or furnishing security therefor.”).
  • 7Singleton v. First Nat’l Life Ins. Co., 157 So. 620, 622 (Orleans Ct. App. 1934).

2 Constitutional Underpinnings

2 Constitutional Underpinnings aetrahan Fri, 04/28/2023 - 13:51

Court access is a hallmark of the Anglo-American legal system, with Magna Carta itself broadly providing for the right.1  The U.S. and Louisiana Constitutions provide the contemporary backdrop for formal, statutory IFP enactments. Scholars have read into the federal constitution a right of access to the court system—the so-called “right to a remedy”—through the First Amendment2  and the Due Process3  and Equal Protection4  Clauses of the Fourteenth Amendment.

Although the U.S. Constitution provides a general framework for court access,5  states have gone further to make access an assurance. Along with thirty-nine other states,6  Louisiana specifically inscribes the right to court access in its constitution: “All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.”7  This provision’s placement in Article I of the Louisiana Constitution is significant for two reasons. First, court access is tied to Louisiana’s due process protections.8  Second, the provision—along with the remainder of rights declared in Article I—is not expressed as a grant from the state sovereign, but as a recognition of an individual right: “The rights enumerated in this Article are inalienable by the state and shall be preserved inviolate by the state.”9  As an inalienable right, a litigant’s access to the court cannot be stripped. IFP protections secure that right.

  • 1Chapter 29 of the 1225 Magna Carta states: No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgement of his peers or by the law of the land. To no-one will we sell or deny of delay right or justice. Magna Carta ch. 29 (trans. Nicholas Vincent, Nat’l Archives & Records Admin, n.d.) (1225).
  • 2See Benjamin Plener Cover, The First Amendment Right to a Remedy, 50 U.C. Davis L. Rev. 1741, 1747 (2017) (arguing that the First Amendment’s Petition Clause “includes the limited right of a person who suffers legal injury (or a sufficient threat thereof) to obtain a minimally adequate remedy from the courts”).
  • 3See Tracy A. Thomas, Ubi Jus, Ibi Remedium: The Fundamental Right to A Remedy Under Due Process, 41 San Diego L. Rev. 1633, 1634 (2004) (positing that “the right to a remedy is a fundamental right” secured by the Due Process Clause); John C.P. Goldberg, The Constitutional Status of Tort Law: Due Process and the Right to A Law for the Redress of Wrongs, 115 Yale L.J. 524, 529 (2005).
  • 4Steven J. Heyman, The First Duty of Government: Protection, Liberty and the Fourteenth Amendment, 41 Duke L.J. 507, 566–68 (1991).
  • 51 Jennifer Friesen, State Constitutional Law § 6-1 n.1 (3d ed. 2000) (“It is unclear, outside the criminal context, to what extent the Federal Constitution requires the states to assure meaningful access to courts to enforce ordinary civil claims.”).
  • 6See Thomas R. Phillips, The Constitutional Right to a Remedy, 78 N.Y.U.L. Rev. 1309, 1310, n.6 (2003) (“The most widespread and important of these unique state provisions is probably the guarantee of a right of access to the courts to obtain a remedy for injury.”).
  • 7La. Const. art. I, § 22.
  • 8Id. art. I, § 2 (“No person shall be deprived of life, liberty, or property, except by due process of law.”).
  • 9Id. art. I, § 1.

3 IFP Status in Louisiana

3 IFP Status in Louisiana aetrahan Fri, 04/28/2023 - 13:58

IFP status is available in nearly every conceivable litigation: for litigants in criminal and civil actions, in jury and bench trials, for plaintiffs and defendants, and on direct and discretionary appeals.1  Although court access is a right for Louisiana citizens,2  IFP status is, strictly speaking, defined as a “privilege,”3  not a right. Louisiana courts have focused on this privilege language, asserting that a litigant “seeking to take advantage of this privilege must clearly be entitled to it.”4  Acknowledging the distinction of IFP status from that of a strict right, the Louisiana Supreme Court in Benjamin v. National Super Markets, Inc., nevertheless distinguished a “privilege” from a mere discretionary “luxury”:

[A]n individual’s privilege to litigate his claim in our courts is not regarded as a luxury. Rather, it is regarded as a privilege granted him in the interest of individual justice to him, and in the interest of a judicial system designed to provide justice for all. The grant of the privilege to litigate without prepayment of costs is designed to deny depriving any individual of his day in court merely because of his lack of financial means to pay or secure court costs.5

Neither an absolute right nor an unnecessary luxury, IFP status requires an initial determination of a litigant’s eligibility for the privilege. This determination is made following the Code of Civil Procedure, which requires a litigant to satisfy certain financial requirements (to prove indigency) and to complete specific procedural steps.

  • 1See La. C.C.P. art. 5181(A) (“[A]n individual who is unable to pay the costs of court because of his poverty and lack of means may prosecute or defend a judicial proceeding in any trial or appellate court . . . .” (emphasis added)). The special requirements and restrictions apply to prisoners seeking to proceed IFP are discussed in Section 12.1.
  • 2La. Const. art. I, § 22.
  • 3See La. C.C.P.. arts. 5182 (“The privilege granted by this Chapter . . .” (emphasis added)), 5183 (“A person who wishes to exercise the privilege granted in this Chapter . . .” (emphasis added)), 5185 (“The court shall make a private inquiry into the facts and, if satisfied that the party is entitled to the privilege . . .” (emphasis added)).
  • 4Lepine v. Lepine, 17-45, p. 7 (La. App. 5 Cir. 6/15/17), 223 So. 3d 666, 672 (“Pauper status, or the ability to litigate without prior payment of costs is a privilege, not a right, and one seeking to take advantage of this privilege must clearly be entitled to it . . . .”).
  • 5Benjamin v. Nat’l Super Markets, Inc., 351 So. 2d 138, 141 (La. 1977).

4 Indigency

4 Indigency aetrahan Fri, 04/28/2023 - 14:01

4.1 General Principles

4.1 General Principles aetrahan Fri, 04/28/2023 - 14:01

The Code of Civil Procedure avoids a precise measurement of applicant indigency, preferring to describe the effect rather than the nature of the impoverishment and declining to impose any specific income threshold. An applicant is entitled to the privilege when “unable to pay the costs of court in advance, or as they accrue, or to furnish security therefor, because of the applicant’s poverty and lack of means . . . .”1  Louisiana courts stress that IFP statutes individually and as a whole should be “interpreted liberally in favor of giving indigent persons their day in court.”2  Nonetheless, the applicant bears the burden of making a showing of indigency.

  • 1La. C.C.P. art. 5183.
  • 2Benjamin v. Nat'l Super Markets, Inc., 351 So. 2d 138, 141 (La. 1977); see also State v. Young, 22-454, p. 3 (La. App. 5 Cir. 10/14/22), 2022 WL 7935147 (noting the “intended liberal application of the status”); Hudson v. Williams Olefins Dev., LLC, 2017-0705, p. 1 (La. App. 1 Cir. 7/11/17), 2017 WL 2981869  (“This statutory privilege is to be interpreted liberally in favor of giving indigent persons their day in courts.”); Butler v. State Farm Mut. Auto. Ins. Co., 2017-0696, p. 1 (La. App. 1 Cir. 7/10/17), 2017 WL 2929557 (same); Gebre v. City of New Orleans, 2014-0904, p. 10 (La. App. 4 Cir. 10/7/15), 177 So. 3d 723, 732 (same); Jackson v. Aetna Life & Cas. Co., 392 So. 2d 1073, 1075 (La. App. 3 Cir. 1980) (confirming the “general notion that this statutory privilege is to be interpreted liberally”); Roy v. Gulf States Utilities Co., 307 So. 2d 758, 760 (La. App. 3 Cir. 1975) (“[A] liberal construction should be applied in close or questionable cases to make sure that a litigant who is entitled to such a privilege is not deprived of it.”).

4.2 Indigency via Presumptions

4.2 Indigency via Presumptions aetrahan Fri, 04/28/2023 - 14:05

Louisiana law creates a set of rebuttable presumptions of indigency. An applicant is presumed indigent if, through supporting documentation, it is shown that the applicant (1) “is receiving public assistance benefits” or (2) has an income “less than or equal to one hundred twenty-five percent of the federal poverty level.”1  The supporting documentation may be submitted under seal.2

Under the Louisiana District Court Rules (Uniform Rules), a litigant who is a “client of a legal services program funded by the Legal Service Corporation or a Pro Bono Project that receives referrals from a legal services program . . . ” is also entitled to the presumption.3  Legal services clients can thus avoid answering additional asset and expense questions on the standardized affidavit.4  However, these clients must still answer the affidavit’s income questions and attest that their income is “less than or equal to 125% of the federal poverty level . . . .”5

In the face of a rebuttable presumption of indigency, the clerk of court or an opposing party may traverse the IFP affidavit.6  If the traversal (or the court’s independent judgment) leads the court to determine that the litigant is not indigent, the court may only deny IFP status after “provid[ing] written reasons for its finding.”7

  • 1La. C.C.P. art. 5183(B)(2).
  • 2See State v. Pizzolato, 2021-1608, p. 1 (La. App. 1 Cir. 3/14/22), 2022 WL 767194 (citing Stolzle v. Safety & Sys. Assur. Consultants, Inc., 2002-1197 (La. 5/24/02), 819 So. 2d 287, 289) (“Courts have noted that income tax returns are confidential in nature and are of a personal character. Accordingly, the family court abused its discretion in denying the motion to seal the income tax return of [the applicant].”).
  • 3La. Dist. Ct. Rules, Appendix 8.0 (In Forma Pauperis Affidavit) p. 3, For a fuller discussion on the standard affidavit in the Uniform Rules, see Section 5.
  • 4Id. (“[S]kip all parts of question 9, and continue with question 10 on the next page.”).
  • 5Id.
  • 6For more discussion of the procedure for traversing an affidavit, see Section 9.
  • 7La. C.C.P. art. 5183(B)(2); see Square v. Paynes, 2022-0385, p. 1 (La. App. 1 Cir. 7/18/22), 2022 WL 2802803 (“[T]he family court failed to give written reasons explaining why the presumption that the mover is entitled to proceed in forma pauperis was rebutted.”).

4.3 Indigency Without Presumptions

4.3 Indigency Without Presumptions aetrahan Fri, 04/28/2023 - 14:09

Although establishing a presumption of indigency is the surest way for an applicant to secure IFP status, it is not the only way. Again, the Code of Civil Procedure instructs that eligibility for IFP status depends on the inability to pay, not a strict income level.1  Such an inability must be shown through supporting documentation, not an applicant’s bare assertions.2  In recent years, some district courts have become increasingly strict about requiring proof of indigency beyond assertions contained within the affidavit, particularly if an applicant attests to an income that would be insufficient to meet basic living expenses without an explanation of how the applicant is supporting herself.

Lower courts and subsequent decisions have followed the analysis of the Louisiana Supreme Court’s analysis in Benjamin v. National Super Markets, Inc., in which Justice Tate called for “a realistic view as to litigant’s actual ability” to pay court costs.3  Beyond employment and income status, then, courts evaluate money available for court costs “after payment of reasonable living expenses and debts, and in view of unencumbered property other than a modest family residence.”4  Put another way, courts assess if there is sufficient “residual income, savings[,] or surplus property” to pay court fees.5  Courts apply a balancing test to determine IFP status, weighing assets against reasonable living costs and court fees.6  Thus, rather than a precise income level that would disqualify an applicant from IFP status, “[e]ach case of this nature should be taken on its own facts.”7

This case-by-case evaluation means courts will view assets differently based on individual circumstances. Louisiana courts have found a soon-arriving bequest to disqualify an IFP applicant,8  but have extended the privilege to an applicant who owns a home and furniture, who maintains a family automobile, and who pays pre-existing debts before court fees.9  Louisiana courts have also found indigency for a dental student earning a small weekly stipend for summer work,10  for an alcoholic whose expenses were increased by a child support order,11  and for a litigant who would otherwise appear to be unemployed by choice.12

Some examples will illustrate the fact-specific inquiry required to evaluate an applicant for IFP status. In Willie v. Allen, the First Circuit reversed a trial court’s denial of the plaintiff’s IFP application.13  The plaintiff carpenter filing a worker’s compensation claim had a gross monthly income of $677, a $39,000 home, a six-year-old truck, and $237 in two bank accounts.14  On the other side of the scale, however, he also had monthly expenses of $698 with two dependents and injuries that “could prevent him from engaging in any gainful occupation for wages in the future.”15  Weighing the plaintiff’s assets against his monetary obligations, the court not only found IFP status appropriate, but it also determined the trial court had abused its discretion by denying it.16

Similarly, in Roy v. Gulf State Utilities Co., the Third Circuit considered numerous factors in reversing a trial court’s IFP denial in a personal injury suit: plaintiff’s uninsured medical debts, his need to support his wife and four children, debt owed to a bank, rent and utility bills, and the lack of any assets beyond a family car.17

The Louisiana Supreme Court cited Roy approvingly in its notable Benjamin opinion.18  In Benjamin, the plaintiff longshoreman had a gross annual income of $20,898.23 in 1976, was paying down the mortgage on a house he owned, and had a 1970 Chevrolet truck.19  However, his household expenses for himself, his wife, and five school-age children exceeded his take-home salary by $500 each month.20  In the high court’s view, the intermediate court’s IFP denial was overly simplistic, based solely on the applicant’s salary, and the plaintiff lacked the $1,000 necessary to perfect his appeal.21  A consideration of all pertinent monetary sources and obligations was necessary to determine an applicant’s indigency.22

  • 1See La. C.C.P. art. 5183.
  • 2See Stump v. City of Shreveport, 255 So. 2d 210, 213 (La. App. 2 Cir. 1971) (“Although Stump described himself as broke at the time of trial, his mortgage payments were current and he owed no appreciable balances on open accounts.”).
  • 3351 So. 2d 138, 141 (La. 1977) (emphasis added) (citing Gilmore v. Rachl, 12 So. 2d 669 (La. 1943); Fils v. Iberia, St. M. & E. R. Co., 82 So. 697 (La. 1919); Roy v. Gulf States Utilities Co., 307 So. 2d 758 (La. App. 3 Cir. 1975); Houston v. Brown, 292 So. 2d 911 (La. App. 2 Cir. 1974); Bodcaw Co. v. Enterkin, 273 So. 2d 325 (La. App. 3 Cir. 1973); Stump, 255 So. 2d 210; Hollier v. Broussard, 220 So. 2d 175 (La. App. 3 Cir. 1969); Crawford v. Gov’t Emps.’ Ins. Co., 219 So. 2d 241 (La. App. 3 Cir. 1969)).
  • 4Id.
  • 5Hollier, 220 So. 2d at 177; see also Fils, 82 So. at 700 (“For being entitled to sue in forma pauperis, it is not necessary that the would-be litigant should be destitute even of a mattress upon which to lie, or a table upon which to eat, or a chair upon which to sit. Moreover, in the present case, the household furniture would not sufficed for meeting the cost bill, even if sold at full value.”).
  • 6Benjamin, 351 So. 2d at 141.
  • 7Crawford, 219 So. 2d at 242.
  • 8See Ainsworth v. Ainsworth, 2003-1626, pp. 2–3 (La. App. 4 Cir. 10/22/03), 860 So. 2d 104, 108.
  • 9See Benjamin, 351 So. 2d at 141 (collecting cases).
  • 10Crawford, 219 So. 2d at 242. The Third Circuit in Crawford added the difficulties of being a student into its indigency analysis: This court remembers that the life of a student is seldom one of luxury, and to deprive this student of the little that he has in income, would not seem to us to be the law’s intention. The purpose of the statute is to aid such people, at least temporarily, in exercising their rights. To allow this plaintiff such a privilege seems to us to be fully within the purpose and intention behind the statutes. Id.
  • 11Jolivette v. Jolivette, 386 So. 2d 707, 708 (La. App. 3 Cir. 1980).
  • 12State v. Young, 22-454, pp. 2–3 (La. App. 5 Cir. 10/14/22), 2022 WL 7935147. In reversing the trial court, the Fifth Circuit Court of Appeal refused to make an inferential finding of unemployment-by-choice when IFP statutes demand liberal construction in favor of the applicant: In its written reasons for judgment, the trial court determined that Relator has no income by choice, and her lack of income was based on her decision to forgo employment in her desired field of education until her expungement was complete. The trial court further found that the absence of any living expenses, as stated in Relator’s affidavit, weighed against a finding of in forma pauperis status as “any job would allow [Relator] discretionary income to pay the filing fees at issue.” Under Relator's circumstances, the trial court found that allowing Relator to proceed in forma pauperis would be an abuse of the privilege. After considering the intended liberal application of the status, we find that the trial court abused its discretion in denying Relator’s request for in forma pauperis status in this matter. Despite the trial judge's opinion of whether Relator can obtain employment to pay for the expenses associated with her expungement process, there was no evidence presented at the hearing to rebut Relator’s assertion that she is currently an indigent and is unable to pay court costs. Id.
  • 13479 So. 2d 637, 639 (La. App. 1 Cir. 1985).
  • 14Id.
  • 15Id.
  • 16Id.
  • 17307 So. 2d at 760.
  • 18Benjamin, 351 So. 2d at 141.
  • 19Id. at 139–40.
  • 20Id.
  • 21Id.
  • 22Id. at 141 (“[T]he fallacy of the defendant’s argument is . . . that, in order to proceed in forma pauperis, the plaintiffs are obliged to divert their income to court costs of this litigation, rather than to food, schooling, or other obligations, and to liquidate their equity in their modest home and furniture.”).

4.4 Changed Financial Condition

4.4 Changed Financial Condition aetrahan Fri, 04/28/2023 - 14:24

Courts understand that a litigant’s financial condition can change. If the litigant’s financial situation has improved, the adverse party or clerk of court can request to traverse the supporting affidavits1  or the court may reevaluate the grant of IFP status sua sponte. Conversely, the court may grant IFP status to a litigant initially denied permission to proceed IFP (or who never requested the privilege) but who later experiences or expresses financial need.

The Louisiana Supreme Court examined the latter situation in Harrison v. Jones.2  In that case, the plaintiff had borrowed money from a friend to commence the litigation.3  The trial court then ordered the plaintiff to post a bond set at ten times the amount initially borrowed.4  Because the plaintiff could not pay that cost himself nor borrow that sum, he applied for IFP status.5

The trial court quickly denied the application, apparently due to the plaintiff’s previous fee payment.6  After restating the law that the IFP privilege can be extended at any point in the litigation process, the Louisiana Supreme Court articulated the policy reasons for reversing the trial court:

The fact that a litigant does all that he can to pay, at least, the initial costs of the suit, is to be commended rather than condemned, as it evidences an honest intention on his part to pay all that he is able to pay of the costs of the litigation. The mere fact that some sympathetic friend hands a man, who is down and out, a $10 bill to bring a lawsuit does not, by any means, indicate that the litigant, otherwise indigent, can continue to borrow to pay future costs, or that he should be compelled to do so, as contended by respondent judge.7

  • 1For further discussion of the procedure for traversing IFP affidavits, see Section 9.
  • 2Harrison v. Jones, 175 So. 37 (La. 1937).
  • 3Id. at 37.
  • 4Id.
  • 5Id.
  • 6Id. at 38.
  • 7Id.

4.5 Durability of IFP Status

4.5 Durability of IFP Status aetrahan Fri, 04/28/2023 - 14:27

Once IFP status has been granted, a litigant maintains that status unless it is revoked by the court at a contradictory hearing.1  One slight exception to this general rule arises if an IFP litigant dies while the litigation is pending. As a personal privilege, IFP status can be extended to a testamentary representative maintaining a suit on behalf of the decedent, but only after the representative “establish[es] that the estate of the deceased is indigent.”2

However, some courts make the status time-limited by local rule. For instance, in the Twenty-Second Judicial District Court (comprising St. Tammany and Washington Parishes), a litigant must renew IFP status annually.3  Although not expressly stated in the Code of Civil Procedure, a court’s setting an expiration date for IFP status is envisioned as a possibility.4  Ignoring the local rule has significant consequences: “Failure to submit a timely new application shall result in the litigant’s right to proceed in forma pauperis to be rescinded and the Clerk of Court shall take steps necessary to recover the court costs which have accrued.”5

However, because IFP status generally persists, an IFP litigant need not reapply for IFP status on appeal.6  As a result, an adverse party who challenges IFP status solely on account of the case’s movement to appeal may be accused of making the argument in bad faith.7

  • 1See La. C.C.P. art. 5185(A)(5) (“When an order of court permits a party to litigate without the payment of costs until this order is rescinded or expires, the party is entitled to . . . [t]he right to a devolutive appeal, and to apply for supervisory writs.” (emphasis added)).
  • 2Bates v. Dep’t of Culture, Recreation & Tourism, Off. of State Museum, 94-2265, p. 2 (La. App. 1 Cir. 2/23/96), 694 So. 2d 294, 295.
  • 3La. Dist. Ct. Rules, 22nd Jud. Dist. Ct., Appendix 3.1, (hereinafter, 22nd JDC Rules).
  • 4La. C.C.P. art. 5185(A)(5) (“When an order of court permits a party to litigate without the payment of costs until this order . . . expires . . . .” (emphasis added)).
  • 522nd JDC Rules, Appendix 3.1, supra.
  • 6See Dowden v. Miller, 404 So. 2d 1270, 1271 (La. App. 1 Cir. 1981) (“Thus once the trial court allowed plaintiff to proceed in forma pauperis and did not rescind the order, the second forma pauperis order was not necessary, and plaintiff could perfect a devolutive appeal ‘without paying the costs in advance, or as they accrue, or furnishing security therefor.’”). On the types of appeals available to IFP litigants, see Section X.
  • 7See Chimento v. KDM Elec. of Alexandria, 2017-146, p. 2 (La. App. 3 Cir. 5/10/17), 2017 WL 1951364 (denying adverse party’s motion to traverse IFP status on appeal and mentioning, without deciding, plaintiff’s argument “that Defendants have ‘offered this Court nothing to suggest that the motion to traverse was filed in good faith’”).

5 Filing Requirements

5 Filing Requirements aetrahan Fri, 04/28/2023 - 14:32

5.1 General Principles

5.1 General Principles aetrahan Fri, 04/28/2023 - 14:32

To proceed with IFP status, a litigant must comply with three requirements outlined in La. C.C.P. art. 5183: an affidavit from the litigant attesting to income and expenses, an affidavit from a third person (other than the litigant’s attorney) attesting to the litigant’s financial condition, and a recommendation from the clerk of court (if the latter is required by the local court). A litigant may submit the materials necessary to comply with these requirements along with the litigant’s first pleading or by ex parte written motion at a later time.1  If a litigant applies for IFP status after the first pleading, court fees that have accrued but that are not yet due can be considered when determining the litigant’s ability to pay the necessary court fees going forward; as such an IFP filing can prevent case dismissal when a litigant faces upcoming fee deadline.2

  • 1La. C.C.P. art. 5183.
  • 2See Tate v. Ochsner Clinic Found., 16-140, p. 6 (La. App. 5 Cir. 12/7/16), 205 So. 3d 996, 1001 (finding that litigant’s petition for IFP status on the date surety bond was due allowed litigant to avoid case dismissal and relieved litigant of surety bond requirement).

5.2 The Litigant’s Affidavit

5.2 The Litigant’s Affidavit aetrahan Fri, 04/28/2023 - 14:39

IFP filings must include an affidavit from the litigant attesting to a personal inability “to pay the costs of court in advance, or as they accrue, or to furnish security therefor, because of the applicant’s poverty and lack of means . . . .”1  The form affidavit asks for basic biographical details (e.g., residence, telephone number, date of birth, household composition, and employment) and more monetary-specific questions (e.g., gross monthly income and expenses, government support, possessions of value, and indebtedness through credit cards or loans).2  The form affidavit also allows applicants to refrain from supplying two pieces of information: a social security number3  and, if the litigant is “seeking protection from abuse”, an address and telephone number.4

The affidavit is to be “accompanied by any supporting documentation.”5  Because La. C.C.P. art. 5183(A) states that the applicant “shall annex” the affidavit and supporting documentation, it appears that such documentation is required.6  In fact, the courts of appeal often deny writs or return writ applications lacking IFP-supportive documentation.7

It is true that the extent to which documentation beyond the affidavit is truly required is somewhat uncertain. For instance, the Uniform Rules only require that an applicant file a state-standardized affidavit.8  The four-page affidavit walks the applicant through various income-expense considerations, but does not specifically state that outside, supporting documents are required.9  This lack of an express requirement in the form approved by the Louisiana Supreme Court is consistent with Louisiana’s treatment of notarial acts in which the affiant’s oath has “legal efficacy for purposes of the laws on perjury.”10  The form affidavit expresses the serious import of the act in its final question: “Has your attorney or the Notary Public told you that you may go to jail if you intentionally give a false answer to any of the above questions?”11  Nevertheless, required or not, marshalling evidence to justify affidavit statements is generally wise, particularly in courts that tend to scrutinize IFP applications even if they are not traversed.

  • 1La. C.C.P. art. 5183(A)(1).
  • 2La. Dist. Ct. Rules, Appendix 8.0 (In Forma Pauperis Affidavit), (hereinafter, IFP Form Affidavit).
  • 3Id. A comment clarifies that “[f]ederal laws, including the Social Security Act and the Privacy Act of 1974, provide that Social Security numbers are confidential and that governmental benefits may not be denied because of a person's refusal to provide that information, unless its provision is required by federal statute.” La. Dist. Ct. Rules, Rule 8.2 cmt. b.
  • 4IFP Form Affidavit, p. 1, supra.
  • 5Id.
  • 6See Thibodeaux v. Rental Ins. Servs., Inc., 2013-1947 (La. App. 1 Cir. 4/24/15), 178 So. 3d 567 (“[O]ne seeking to take advantage of this privilege must submit specific documentation.” (emphasis added)); La. Rules New Orleans 2nd City Ct., Rule 6 (“This motion and affidavit shall recite that said party is a pauper and set forth in detail his or her financial condition, amount of income, sources of income, number of dependents, description and worth of any property owned in addition to any additional information that the Court shall deem necessary.” (emphasis added)).
  • 7See, e.g., Wells v. E. Baton Rouge Par. Sch. Sys., 2017-1567, p. 1 (La. App. 1 Cir. 11/14/17), 2017 WL 5478618 (“We are returning your writ application with the requirement that you include the documentation specifically identified in La. Code Civ. P. art. 5183 demonstrating your inability to pay with any writ application submitted in your behalf.”); Brumfield v. La, Dep’t of Pub. Safety & Corr., 2018-0550, p. 1 (La. App. 1 Cir. 5/29/18), 2018 WL 2418400 (denying writ by finding inmate failed “to provide proof of his inability to pay the filing fee and submit a fully executed ‘In Forma Pauperis Affidavit’”); Smith v. Doody, 98-198, p. 5 (La. App. 5 Cir. 10/14/98), 721 So. 2d 60 (denying, in an appeal posture, litigant’s IFP privilege in part because of “no information on Mr. Wilbert Smith’s financial status”).
  • 8La. Dist. Ct. Rules, Rule 8.0, (“A party, other than an inmate, who wishes to proceed in forma pauperis shall complete and file the affidavit in Appendix 8.0.”).
  • 9IFP Form Affidavit, supra.
  • 10La. R.S. 35:2(B).
  • 11IFP Form Affidavit, p. 3, supra.

5.3 Third-Person Affidavit

5.3 Third-Person Affidavit aetrahan Fri, 04/28/2023 - 14:48

In addition to the litigant’s affidavit, the IFP application must include an affidavit of a third person who knows the applicant’s “financial condition.”1  The third person must attest to a “[belief] that the applicant is unable to pay the costs of court in advance, or as they accrue, or to furnish security therefor.”2  The third party cannot be the applicant’s attorney.3  Unlike in the provision requiring supporting documentation to support the litigant’s affidavit, the Code of Civil Procedure makes no mention of attached documentation to support the third-party’s assertions.4

  • 1La. C.C.P. art. 5183(A)(2).
  • 2Id.
  • 3Id. However, a former attorney of the applicant can sign an affidavit, as when a litigant files an appeal pro se and has his trial attorney sign the third-party affidavit. See Auto-For-Rent, Inc. v. Provenza, 242 So. 2d 353, 355 (La. App. 2 Cir. 1970).
  • 4Compare La. C.C.P. art. 5183(A)(1), with La. C.C.P. art. 5183(A)(2).

5.4 Clerk of Court Recommendation

5.4 Clerk of Court Recommendation aetrahan Fri, 04/28/2023 - 14:52

In addition to affidavits from the litigant and a knowledgeable third party, an IFP applicant must obtain a “recommendation from the clerk of court’s office as to whether or not it feels the litigant is in fact indigent, and thus unable to pay the cost of court in advance, or as they accrue, or to furnish security therefor, if required by local rule of the court.”1  This is a nonbinding recommendation solely as to the fact of indigency; the court must ultimate decide whether or not to grant IFP status.2

Although no district court in the New Orleans area currently requires a clerk’s recommendation,3  clerks of court have sometimes increased procedural hurdles for a litigant by treating the request for a recommendation as an occasion for a contradictory hearing or extensive factfinding. Rather than creating obstacles at the recommendation stage, La. C.C.P. art. 5184 allows the clerk of court to traverse the facts asserted by the affidavits. As a result, any procedure for obtaining the clerk’s recommendation should adhere to the admonition of the Louisiana courts that IFP statutes be “interpreted liberally in favor of giving indigent persons their day in court.”4

La. C.C.P. art. 5183 does not spell out the level of affidavit detail or even the precise steps needed to secure the clerk of court’s recommendation. In the face of any apparent difference in law and practice, the Uniform Rules details the proper standard: “[A] conflict between a Rule and legislation should be resolved by following the legislation.”5  Nonetheless, courts have been called on to determine whether local requirements have gone too far.

Two cases help trace the edges. In Wilson v. Willis, the First Circuit found local affidavit requirements in line with legislative principles.6  The district court required an IFP applicant “set[] forth a list of his property and its value, his earnings for the preceding two years, the indebtedness, and his needs or those dependent upon him . . . .”7  Although this local rule was more specific than Article 5183, the court held that a clerk “may inquire into the facts at the time the motion is presented to him, either of the applicant’s attorney or (presumably) through a questionnaire required of the litigant . . . .”8

As its authority, the Wilson court cited Futch v. Coumes, a case that resulted in the opposite conclusion.9  Reviewing the refusal of IFP status by a district court in Lafayette Parish, the Louisiana Supreme Court determined that the local rules exceeded what was authorized by the statutes.10  The trial court required both the applicant and third-party witness to “appear in person at the clerk’s office to execute the affidavits” together, with both then being “subject to interrogation by a deputy clerk (a non-judicial officer) concerning the litigant’s lack of means.”11  The Supreme Court found the practice riddled with overreaches.12  An initial application presentation to a clerk did not in itself render the rule invalid, but a “quasi-judicial hearing” before a deputy clerk, who has the authority to deny an application, combined with the “mandatory personal appearance for a mini-hearing at the courthouse . . . of all litigants [ran] contrary to the statutes establishing the procedures by which poor litigants are permitted to proceed in forma pauperis.”13  The Supreme Court suggested that the clerk’s authority might be limited to inquiry into the applicant’s financial means “on the basis of the affidavits, inquiry personally (or by telephone) of the litigant’s attorney, or possibly by examination of a reasonable questionnaire (if required by a court rule).”14

  • 1La. C.C.P. art. 5183(A)(3) (stating the office bases its recommendation on “whether or not it feels the litigant is in fact indigent . . .”).
  • 2La. C.C.P. art. 5183(B)(1) (“Upon the filing of the completed application and supporting affidavits, the court shall render an order . . . .”). But see La. C.C.P. art. 283(A)(4) (“The clerk of a district court may sign any of the following orders or judgments: . . . (4) An order to permit a party to institute and prosecute, or to defend, a suit without the payment of costs, under the provisions of Articles 5181 through 5188.”).
  • 3See Appendices - Rules for Louisiana District Courts, (local rules for district courts of Orleans, Jefferson, St. Tammany, Washington, and St. Charles Parishes).
  • 4Benjamin v. Nat’l Super Markets, Inc., 351 So. 2d 138, 141 (La. 1977).
  • 5La. Dist. Ct. Rules, Rule 1.0 cmt. (a).
  • 6Wilson v. Willis, 404 So. 2d 529 (La. App. 1 Cir. 1981).
  • 7Id. at 530.
  • 8Id. (internal citation omitted).
  • 9Futch v. Coumes, 347 So. 2d 1121 (La. 1977).
  • 10Id. at 1123.
  • 11Id. at 1123–24.
  • 12Id. at 1123.
  • 13Id. at 1124.
  • 14Id.

6 Deciding an IFP Application

6 Deciding an IFP Application aetrahan Fri, 04/28/2023 - 14:57

When a litigant submits a completed IFP application, a Louisiana court has three options: (1) grant IFP status to the applicant, (2) “[d]en[y] the application with written reasons for such denial[,]” or (3) “[s]et[] the matter for a contradictory hearing.”1  As in every procedural stage, the court should liberally construe the IFP application and favor the litigant’s day in court.2  However, once made, the court’s determination is given great deference and is reviewed only for abuse of discretion.3  This standard favors deference towards the trial court in its application of the indigency balancing test.4  Nevertheless, if the trial court’s denial was procedurally defective (i.e., lacked written reasons or the opportunity for a contradictory hearing), the court of appeal should return the case to the trial court for reconsideration.5  

If a trial court denies IFP status, an applicant can seek immediate review via a supervisory writ or wait and appeal the denial after a final judgment.6  As IFP denials cause irreparable injury, an applicant can properly appeal the interlocutory ruling as of right to the intermediate appellate court.7  Because the applicant has alleged indigency, the Louisiana Supreme Court has repeatedly ruled that an IFP applicant should be permitted to appeal a denial through a supervisory writ without paying the appellate filing fee.8  This exemption from filing fees also extends to appeals of IFP denials after final judgment; in that case, Louisiana courts address the IFP issue before considering the merits of the appeal.9  However, in order to appeal an IFP denial, the applicant must have actually applied for IFP status in the lower court.10

Significantly, in the case of a denial, the court renders the ruling, not the clerk of court. Because the Code of Civil Procedure leaves the choice of whether to require the recommendation to individual courts, a clerk’s recommendation of indigency status is not a pre-requisite for a court determination.11  Put another way, the clerk may sign off on the request but cannot deny it.12

  • 1La. C.C.P. art. 5183(B)(1).
  • 2See Benjamin v. Nat’l Super Markets, Inc., 351 So. 2d 138, 141 (La. 1977).
  • 3See Ainsworth v. Ainsworth, 2003-1626 (La. App. 4 Cir. 10/22/03), 860 So. 2d 104, 108 (“The trial court is afforded wide discretion in determining whether to grant the privilege to litigate in forma pauperis. Such discretion must be exercised reasonably and is subject to review for abuse.”); Donley v. Hudson’s Salvage LLC, 2013-1499 (La. App. 1 Cir. 3/21/14), 2014 WL 1165871, at *3 (“In the absence of a clear abuse of that discretion, an appellate court will not disturb the trial court's finding.”).
  • 4See, e.g., Howard v. W. Auto Supply Co., 192 So. 137, 137–38 (Orleans Ct. App. 1939). In Howard, the deferential standard of review proved controlling, as the appellate court affirmed an IFP denial even though the applicant had a “meager monthly income”: It is difficult, if not impossible, for us to believe that after plaintiff, from his meager monthly income of $57.19, which he receives only when he works full time, has paid the necessary cost of maintaining his family of five, there can be anything left for the payment of costs of litigation, and yet we realize that the income of plaintiff is probably more than is earned by countless thousands of other persons in the same social status and that many of these others are able, out of similar earnings, to pay the costs of such litigation as they may find it necessary to undertake. Still, we feel that our brother of the trial court must have fully satisfied himself in the premises, and it is well established that, in such matters, the trial judge has discretion which should not be disturbed or interfered with unless there is a showing of manifest error. Id.
  • 5La. C.C.P. art. 5183(B)(1); see, e.g., Square v. Paynes, 2022-0385, p. 1 (La. App. 1 Cir. 7/18/22), 2022 WL 2802803 (“[Mover] did not receive any notice of the hearing on the motion . . . . Furthermore, the family court failed to give written reasons explaining why the presumption that the mover is entitled to proceed in forma pauperis was rebutted.”); Arvie v. Cullivan, 2018-1871, p. 1 (La. 1/18/19), 261 So. 3d 771, 772 (Hughes, J., dissenting) (“Respectfully, the trial court denied the motion to proceed in forma pauperis without a hearing and without reasons, by merely writing ‘denied’ on the motion . . . . The law is clear. It was error to deny the motion without a hearing and evidence to rebut the presumption.”). But see State in re A.C., 2020-0828, p. 7 (La. App. 1 Cir. 2/19/21), 2021 WL 651122 (finding, based on La. Ch.C. art. 321, that IFP applicant had no such right to a contradictory hearing because the Children’s Code “imposes no such requirement on the court in determining a party’s ability to pay court costs”).
  • 6See A.C., 2020-0828, p. 3, 2021 WL 651122. Although both options are open to a denied applicant, Louisiana courts favor review through supervisory writ. See Starks v. Universal Life Ins. Co., 95-1003, p. 12 (La. App. 1 Cir. 12/15/95), 666 So. 2d 387, 394 n.4 (“We note that the more appropriate way to challenge the trial court’s denial of a request to proceed in forma pauperis is to invoke this court’s supervisory jurisdiction by applying for writs.”).
  • 7See Faucheaux v. Commercial Union Ins. Co., 342 So. 2d 269, 269–70 (La. App. 3 Cir. 1977) (quoting Shaneville v. Toye Bros., 173 So. 464 (Orleans Ct. App. 1937)). Although intermediate appellate courts must review a trial court’s IFP denial, the Louisiana Supreme Court has the discretion whether to review an intermediate appellate court’s IFP ruling. See Rules of Supreme Court of Louisiana, Rule X (Writ Applications). The Supreme Court provides five possible grounds for writ consideration: (1) Conflicting Decisions, (2) Significant Unresolved Issues of Law, (3) Overruling or Modification of Controlling Precedents, (4) Erroneous Interpretation or Application of Constitution or Laws, and (5) Gross Departure from Proper Judicial Proceedings. Id.
  • 8Richardson v. Say, 98-1094 (La. 5/29/98), 719 So. 2d 1271 (“Granted and transferred to the court of appeal for consideration on the merits without the payment of a filing fee.”); Kenner Reg’l Med. Ctr. v. Mensingh, 98-0186 (La. 1/22/98), 709 So. 2d 684, 685 (“Where relator is seeking review of the denial of an application to proceed in forma pauperis, the clerk of court shall allow the application to be filed without the payment of costs.”); Riebow v. Riebow, 97-3093 (La. 1/9/98), 705 So. 2d 1086 (same); Language v. Language, 96-1874 (La. 10/25/96), 681 So. 2d 350, 351 (same); Peterson v. Peterson, 97-0144 (La. 3/7/97), 691 So. 2d 664, 665 (same); Cook v. Cook, 98-0023 (La. 1/9/98), 705 So. 2d 1087 (same).
  • 9See A.C., 2020-0828, p. 3, 2021 WL 651122.
  • 10See Harrison v. Minardi, 2007-514, p. 4 (La. App. 3 Cir. 10/31/07), 968 So. 2d 1221, 1224 (affirming dismissal when IFP paperwork arrived three days after surety bond deadline, thereby preventing trial court from considering the application and appellate court from considering appeal of status); Clarkston v. Funderburk, 2016-681, p. 10 (La. App. 3 Cir. 2/1/17), 211 So. 3d 509, 514 (same, as litigant “failed to apply for pauper status and did nothing during the six weeks given for posting the bond, or during the thirty additional days that she received on her request for an extension, to improve her position”).
  • 11La. C.C.P. art. 5183(B)(1) (“Upon the filing of the completed application and supporting affidavits, the court shall render an order . . . .”).
  • 12See La. C.C.P. art. 283(A)(4) (“The clerk of a district court may sign any of the following orders or judgments: . . . (4) An order to permit a party to institute and prosecute, or to defend, a suit without the payment of costs, under the provisions of Articles 5181 through 5188.”).

7 Curing Errors in IFP Applications

7 Curing Errors in IFP Applications aetrahan Fri, 04/28/2023 - 16:20

A court may provide a litigant who fails to completely comply with IFP application procedures with a chance to cure an error or incomplete submissions. Most often, lack of compliance involves deficiencies with the applicant’s affidavit. In Boudreaux v. Rossen, the First Circuit laid out a curing measure nearly a century ago.1  During his IFP application before the district court, the plaintiff provided two third-party affidavits but only swore in open court that he was indigent.2  The trial judge granted IFP status, which the defendant immediately objected to because of the plaintiff’s failure to submit his own affidavit.3  In granting the plaintiff a ten-day extension to file such an affidavit, the trial judge determined that “there had not been a compliance with the mandatory provisions of the statute, but . . . there appeared to have been an honest effort on the part of plaintiff to do so . . . .”4  The First Circuit affirmed the curing remedy.5

This “honest effort” measure is also applicable when the clerk of court makes a mistake. In Roy v. Gulf States Utilities Co., the Third Circuit considered a challenge to IFP status when the the application lacked the required third-party affidavit.6  Despite this lack of compliance with the statute, the appellate court refused to find that the IFP order was an absolute nullity.7  Rather, it determined that the mistake was only a “relative nullity, and that it could be ratified or confirmed by the trial court after the required affidavits were supplied.”8

In other cases, Louisiana courts revive procedurally defective IFP applications when a litigant is especially vulnerable. For instance, in a disavowal action, a man was granted a judgment that he was not the father of a four-and-one-half-month-old baby.9  In order for the baby’s court-appointed attorney to appeal, he needed to either produce an appeal bond or have the court grant IFP status to the newborn.10  Although it was unquestioned that a newborn cannot pay court fees, it was unclear if the mother could—a question that remained open because the mother neither answered citation for the case nor could be found.11  With no other recourse, the attorney himself signed the child’s IFP affidavit.12  Only after the alleged father challenged the IFP status was the infant’s mother found and persuaded to sign an affidavit.13  Nevertheless, the plaintiff contended that it was all too late and that the attorney’s affidavit could not support IFP status for the child.14  Moving to dismiss the case on the grounds of failure to conform with IFP guidelines or, in the alternative, to produce an appellate bond, the alleged father argued that no appeal had been perfected.15  The Third Circuit disagreed, not merely because of the late-arriving affidavit from the child’s mother but also because of the attorney’s earlier actions.16  Expanding upon previous expressions of honest effort, the court observed, “Whether one is entitled to so proceed should depend not so much on the technical requirements of the pleadings involved but on the nature of the proceeding . . . .”17  This ruling suggests that technical requirements for IFP applications may be loosened if the individuals affected clearly lack the ability to access to courts in any other way.

Although some reported cases reference technical failures in the IFP application in decisions affirming the denial of IFP status, careful reading of those decisions reveals that the technical errors were not the reason for the courts’ decisions. For instance, in the review of a succession fight between three brothers, the Fourth Circuit combed through various financial discrepancies between the applicant’s statements and his living arrangements, which included residing rent-free in a succession property.18  When listing the facts it considered, the court stated that “the relator did not provide an affidavit of a person supporting the mover’s pauper status as required by La. C.C.P. art. 5183(2).”19  Although the court mentioned this technical deficiency in the application, the court affirmed the revocation of IFP status based on the trial court’s finding that the litigant had assets sufficient to make him ineligible for IFP status.20

Some application failures, however, are incurable. For instance, a litigant who never filed an IFP request in the trial court but nevertheless argues on appeal that trial court fees should not be assessed is unlikely to be allowed to cure the failure to file an initial application for IFP status.21  Further, a cover letter indicating that an IFP application will be filed is insufficient as a stand-in for a litigant’s affidavit.22

Put together, Louisiana courts do not find technical application errors fatal, but curing is most likely in cases of “honest effort,” a measure determined by the circumstances of the error, the nature of the litigation, and the applicant’s litigation conduct.

  • 1Boudreaux v. Rossen, 139 So. 706 (La. App. 1 Cir. 1932).
  • 2Id. at 707.
  • 3Id.
  • 4Id.
  • 5Id.
  • 6Roy v. Gulf States Utilities Co., 307 So. 2d 758, 761 (La. App. 3 Cir. 1975).
  • 7Id.
  • 8Id.
  • 9Enterkin v. Devaux, 266 So. 2d 721, 722 (La. App. 3 Cir. 1972).
  • 10Id. For a full discussion on IFP’s relationship to appeal bonds, see Section 10.
  • 11Enterkin, 266 So. 2d at 722.
  • 12Id.
  • 13Id. at 723.
  • 14Id. at 722.
  • 15Id. at 723.
  • 16Id. (“[T]he redactors of the Code of Civil Procedure did not intend to cut off an indigent infant’s right to appeal by providing that he could be sued through a court appointed attorney when no tutor had been appointed. This motion has revealed a hiatus in the law.”).
  • 17Id.; see also id. at 722 (“The affidavits which plaintiff-appellee contend are sacramental are mere annexations to the application to proceed in forma pauperis.”).
  • 18Ainsworth v. Ainsworth, 2003-1626 (La. App. 4 Cir. 10/22/03), 860 So. 2d 104, 108.
  • 19Id.
  • 20Id. The Ainsworth court also considered whether the applicant-brother’s IFP challenge was a product of a broader litigation strategy: The relator’s portion of the inheritances is delayed by his challenge to his aunt’s will, as well as his challenge to the partition of his father’s property at issue. The record shows that the relator filed various pleadings with claims that are needlessly repetitive. The relator should not be entitled to abuse the system by continuing to file extensive pleadings that result in needless delay. We infer that the most likely reason for this delay is for the relator to continue to live on the property rent-free. Id. Thus, the applicant’s litigation conduct is also a factor in determining whether the applicant will be allowed to cure a technical defect.
  • 21See State ex rel. J.W., 2000-1445, p. 7 (La. App. 4 Cir. 1/10/01), 779 So. 2d 961, 966.
  • 22See Tenney v. Burlington N. & Sante Fe Ry. Co., 2003-1260, p. 5 (La. 1/21/04), 863 So. 2d 526, 529 (“By itself, this cover letter cannot be construed as an ex parte written motion which would satisfy La. Code Civ. P. art. 5183, as no pauper affidavits are attached to the letter.”).

8 Effects of IFP Status

8 Effects of IFP Status aetrahan Fri, 04/28/2023 - 16:30

8.1 IFP Benefits

8.1 IFP Benefits aetrahan Fri, 04/28/2023 - 16:30

La. C.C.P. art. 5185 details the many entitlements of a litigant if IFP status is granted.1  These include:

(1) All services required by law of a sheriff, clerk of court, court reporter, notary, or other public officer in, or in connection with, the judicial proceeding, including but not limited to the filing of pleadings and exhibits, the issuance of certificates, the certification of copies of notarial acts and public records, the issuance and service of subpoenas and process, the taking and transcribing of testimony, and the preparation of a record of appeal.

(2)(a) The right to the compulsory attendance of not more than six witnesses for the purpose of testifying, either in court or by deposition, without the payment of the fees, mileage, and other expenses allowed these witnesses by law . . . [as well as] an order permitting the party to subpoena additional witnesses at the expense of the parish.

(3) The right to a trial by jury and to the services of jurors, when allowed by law and applied for timely.

(4) The right to have any judgment or order filed and to receive one certified copy of the judgment or order.

(5) The right to a devolutive appeal, and to apply for supervisory writs.2

Although substantial, the services listed in Article 5185 are “non-exclusive” and should be read to implicate any “routine, commonplace and recognized duties” of court officers.3  This more expansive reading has led courts to include the costs of electronic filing as a service for the IFP litigant.4  Clearer still—and related to the durability of IFP status5 —a clerk of court cannot refuse to lodge an IFP litigant’s appeal6  or deny an IFP litigant a certified copy of a divorce decree.7

One service not included in IFP coverage is court reporter transcription outside of an official court proceeding.8  As a practical matter, this greatly reduces an IFP litigant’s ability to take depositions. Parties, however, can agree to abide by the default rules found in La. C.C.P. art. 1920: “[C]osts shall be taxed against the party cast [in judgment] . . . .”9  In such a case, the IFP litigant risks a larger bill if unsuccessful at the end of the proceedings.

  • 1La. C.C.P. art. 5185.
  • 2Id.
  • 3State ex rel. Aucoin v. Blakeman, 207 So. 2d 860, 862 (La. App. 1 Cir. 1968).
  • 4See Tenney v. Burlington N. & Sante Fe Ry. Co., 2003-1260 (La. 1/21/04), 863 So. 2d 526, 528 (“Clearly, the filing of a petition by facsimile transmission is a ‘service required by law’ of a clerk of court . . . .”).
  • 5On the durability of IFP status, see Section 4.5.
  • 6Mason v. Hendrick, 2019-113 (La. App. 3d Cir. 4/17/19), 268 So. 3d 1074, 1078 (“[T]he clerk of court erroneously advised the Relator that the record would not be lodged without payment of the estimated costs of the appeal. Accordingly . . . the clerk of court [is] ordered to lodge the appellate record per the trial court’s September 10, 2018 order granting a devolutive appeal.”); Walcott v. Dep’t of Health & Valley Catering, 2021-0019, p. 1 (La. App. 1 Cir. 3/29/21), 2021 WL 1171179 (“The plaintiff was granted pauper status . . . . Accordingly, the portion of the trial court’s . . . order conditioning . . .  [the] devolutive appeal on the payment of court costs is reversed. This matter is remanded to the trial court with instructions . . . to direct the clerk of court to prepare and lodge the record.”).
  • 7Carline v. Carline, 93-1505, p. 3 (La. App. 1 Cir. 10/7/94), 644 So. 2d 835, 837.
  • 8See Taylor v. Broom, 526 So. 2d 1367, 1372 (La. App. 1 Cir. 1988) (emphasis original) (“We have found no law, and none has been cited to us, which requires clerks of court (or their deputies) or notaries public to take depositions; they are authorized to do so but have no affirmative duty to do so.”).
  • 9La. C.C.P. art. 1920.

8.2 IFP Risks

8.2 IFP Risks aetrahan Fri, 04/28/2023 - 16:36

Depositions are not the only cost an IFP litigant may face following a final judgment. As La. C.C.P. art. 5186 specifies, accrued court costs are not eliminated; they are just delayed.1  Thus, a day in court is assured, but an IFP litigant may still be responsible for court payments.2  In litigation involving an IFP litigant, whoever is cast in judgment is responsible for the court costs, before any other payments.3  If the IFP litigant is unsuccessful and is not able to pay fees at the conclusion of the case, the clerk of court can assure payment through a judicial lien made recording an affidavit detailing the costs in the mortgage records.4

Courts can struggle to allocate fees to the unsuccessful party. For one, although La. C.C.P. art. 1920 permits a court to assign fees “as it may consider equitable,”5  this more general provision gives way to the more specific IFP statutes.6  Costs, therefore, are assigned based on success, not equity. Determining which litigant is successful, however, can prove challenging. In Hirstius v. Cleco Corp., an IFP litigant prevailed on a contempt of court proceeding, with the trial court awarding him damages and ordering the removal of cable equipment from a utility pole on his property.7  The plaintiff appealed, however, because not all the equipment was removed, as some belonged to another company.8  The First Circuit affirmed the trial court’s ruling, meaning the IFP litigant both won (at trial) and lost (on appeal).9  In assigning the costs, the appellate court determined that as success was split so should the fees and divided them equally between the parties.10

Divorce actions also demand careful analysis of “success.” When one party has IFP status, court fees are not split, as in a regular divorce proceeding.11  Rather, courts look to which party’s motion is granted to determine the successful party.12  Further, even a slight error in recording can improperly shift fees to an IFP litigant in a divorce suit. In Yarls v. Yarls, the Fourth Circuit reversed the trial court’s division of fees between the parties.13  Although the trial court granted a default judgment to the IFP litigant, the court incorrectly styled the judgment as a “divorce between the parties” and, accordingly, divided the fees between the parties.14  The appellate court clarified that the IFP litigant was the “prevailing party in the confirmation of the default, and the judgment should have been entered in her favor,” thus removing her liability for court costs.15

  • 1La. C.C.P. art. 5186 (“An account shall be kept of all costs incurred by a party who has been permitted to litigate without the payment of costs, by the public officers to whom these costs would be payable.”).
  • 2Id.; see also Cariere v. The Kroger Store, 52,846, p. 6 (La. App. 2 Cir. 8/14/19), 276 So. 3d 1150, 1154 (“Although not liable for the advancement of costs or as they accrue, an indigent party may ultimately be responsible for the cost of an unsuccessful lawsuit.”).
  • 3La. C.C.P. art. 5186 (“If judgment is rendered in favor of the indigent party, the party against whom the judgment is rendered shall be condemned to pay all costs due such officers, who have a privilege on the judgment superior to the rights of the indigent party or his attorney.”).
  • 4Id. If an IFP litigant is able to pay the fees immediately, the litigant can avoid having the lien filed in the mortgage records. See Brownell v. Brownell, 2000-1803 (La. App. 3 Cir. 10/3/01), 799 So. 2d 587.
  • 5La. C.C.P. art. 1920.
  • 6See Herigodt v. Town of Golden Meadow, 2020-0752, pp. 16–17 (La. App. 1 Cir. 2/22/21), 321 So. 3d 1004, 1016 (discussing the interplay between Articles 1920 and 5181–88).
  • 7Hirstius v. Cleco Corp., 2019-1637, p. 2 (La. App. 1 Cir. 6/4/21), 327 So. 3d 518, 519.
  • 8Id. at 520.
  • 9Id.
  • 10Id.
  • 11See Stapleton v. Stapleton, 2005-1035, p. 1 (La. App. 3 Cir. 2/1/06), 922 So. 2d 1234, 1235.
  • 12See Ford v. Ford, 2009-1494, p. 2 (La. App. 4 Cir. 2/24/10), 32 So. 3d 989, 990 (“In the present case, the divorce judgment entered on Ms. Ford’s motion to confirm the default was rendered against Willie Ford, III; thus, Willie Ford, III should have been condemned to pay all costs of the proceedings.”).
  • 13Yarls v. Yarls, 2009-1173, p. 3 (La. App. 4 Cir. 1/27/10), 30 So. 3d 1101, 1102.
  • 14Id. at 1101 (internal quotations omitted).
  • 15Id. at 1102.

9 Challenging IFP Status

9 Challenging IFP Status aetrahan Mon, 05/01/2023 - 10:56

Even if the court grants IFP status, it can be challenged through a traversal of the submitted affidavits. Articles 5183 and 5184 of the Code of Civil Procedure name three possible challengers: the court,1  the adverse party, or the clerk of court.2  The court has no apparent limitation to the procedural timing of its sua sponte review, as such review is seen as in keeping with the court’s “authority and duty to subject forma pauperis orders to continuing scrutiny to prevent abuse.”3  Any reversal of status, however, must be preceded by a contradictory hearing.4  Even in a summary proceeding, a court must offer an IFP litigant sufficient notice of the contradictory hearing.5

The adverse party and the clerk of court, on the other hand, have clear limitations on their traversal. Chiefly, Article 5184 provides that “only one rule to traverse the affidavit of poverty shall be allowed . . . .”6  Because there is no statutory deadline before which a traversal must be made, courts look to equity and generally find that gaps in years or even months between IFP grant and challenge to be too long.7  Further, traversal is properly made at the trial court level, not for the first time on appeal.8  However, equity also cuts in favor of the adverse party; when an IFP litigant has a change in economic circumstances, a later traversal is allowed.9

  • 1La C.C.P. art. 5183(B)(3) (“The court may reconsider its original order granting the application on its own motion at any time in a contradictory hearing.”).
  • 2La C.C.P. art. 5184(A) (“An adverse party or the clerk of the court in which the litigation is pending may traverse the facts alleged in the affidavits of poverty, and the right of the applicant to exercise the privilege granted in this Chapter . . . .”).
  • 3City Stores Co. v. Petersen, 268 So. 2d 662, 663 (La. 1972) (“A trial judge may, therefore, reconsider a poverty determination whenever he has cause to believe either that circumstances have changed or that the order was improvidently granted.”).
  • 4Id.
  • 5See Cloud v. Dean, 2015-297, p. 11 (La. App. 3 Cir. 12/16/15), 181 So. 3d 936, 943 (reversing the removal of IFP status and remanding the issue for an evidentiary hearing due to “failure to serve [litigant] with the Rule to Traverse Pauper Status”).
  • 6La. C.C.P. art. 5183(A).
  • 7See McKellar v. Mason, 154 So. 2d 237 (La. App. 4 Cir. 1965) (nine months); Darby v. Travelers Ins. Co., 272 So. 2d 798, 799 (La. App. 3 Cir. 1973) (four years); Ross v. Hatchette, 247 So. 2d 399, 400 (La. App. 4 Cir. 1971) (nine years).
  • 8See Lepine v. Lepine, 17-45 (La. App. 5 Cir. 6/15/17), 223 So. 3d 666, 672–73 (“Troy seeks to challenge Mindy’s pauper status for the first time in this appeal. As a general rule, appellate courts will not consider issues raised for the first time on appeal, which are not pleaded in the court below and which the trial court has not addressed.”). But see Buckley v. Thibodaux, 159 So. 603, 605 (La. 1935) (permitting a traversal on appeal “if sufficient time for the traverse was not allowed in the court which rendered the judgment”).
  • 9See Golden v. Cromwell, 407 So. 2d 523 (La. App. 3 Cir. 1981) (remanding case for traversal four years after the granting of IFP status because applicant became newly employed); Doyle v. Aetna Life & Cas. Co., 309 So. 2d 803, 803–04 (La. App. 3 Cir. 1974) (remanding case for traversal after appeal lodged when during the course of litigation IFP plaintiff’s husband died, leaving her “considerable properties”).

10 IFP Appeals

10 IFP Appeals aetrahan Mon, 05/01/2023 - 11:02

An IFP litigant is allowed to appeal a final judgment without paying the filing fee, but only devolutively, not suspensively.1  The two appeals differ in their procedural timeframe,2  their bond requirements,3  and, most critically, their effect on the final judgment.4  Basically, a litigant is permitted to proceed IFP on appeal (i.e., without paying fees) in cases that do not require an appeal bond, that is, devolutive appeals.5  An IFP litigant is also relieved from the responsibility of posting security in the trial court even if the defendant requests it.6  This waiver is of particular importance in medical malpractice suits which, as a general rule, require the plaintiff to post a bond for the costs of the medical review panel when the panel has found unanimously in favor of the healthcare provider.7

With IFP litigants, courts have found that filing for or being improperly granted a suspensive appeal is sufficient preserve the right to take a devolutive appeal and will convert the former to the latter.8  Eviction cases, however, present a significant appeal challenge for the IFP litigant.9  For one, trial courts lack the discretion to convert the filing for a suspensive appeal into a devolutive appeal.10  Further, in the eviction context, the difference between the two appeals is stark: “[I]f the evictee takes a suspensive appeal he retains possession of the premises; however, as a general rule, if he takes a devolutive appeal his only relief is monetary damages for wrongful eviction.”11  Put together, this means that an IFP tenant, who is only entitled to a devolutive appeal, risks losing residency and any relief by filing a suspensive appeal and failing to pay the court-determined appeal bond.

Recent cases, however, offer IFP tenants some hope. Weighing in on an eviction dispute, the First Circuit granted an IFP litigant’s supervisory writ in order to describe an alternative to a suspensive appeal bond.12  After vacating the trial court’s notice of appeal costs, the appellate court determined that the $6,000 appeal bond was an abuse of discretion.13  A more equitable—and apparently viable—option for bond payment existed: “An alternative in such cases in the setting of such bonds is to require the appealing party to pay her rent into the registry of the court each month as it becomes due, and we find that this alternative would be reasonable herein.”14  The court’s reasoning corresponds with the purpose of a suspensive appeal bond: “to protect the appellee against all such damage as he may sustain as a result of the appeal.”15

One additional bond-related consideration for tenants arises from the court in which the eviction has been brought. Justice of the Peace courts have concurrent jurisdiction with parish or district courts “over suits by landowners or lessors for the eviction of occupants or tenants of leased residential premises, regardless of the amount of monthly or yearly rent or the rent for the unexpired term of the lease.”16  Significantly for the IFP litigant, an appeal from a justice of the peace eviction is heard “de novo in the district court or the parish court,” and so does not require a bond.17

  • 1La. C.C.P. art. 5185(A)(5) (“[T]he party is entitled to . . . [t]he right to a devolutive appeal . . . .); La. C.C.P. art. 5185(B) (“The party is not entitled to a suspensive appeal, or to an order or judgment required by law to be conditioned on his furnishing security other than for costs, unless the party furnishes the necessary security therefor.”).
  • 2A suspensive appeal generally must be filed within thirty days of the trial judgment becoming final, whereas the devolutive appeal filing deadline extends to sixty days. Compare La. C.C.P. art. 2123, with La. C.C.P. art. 2087.
  • 3La. C.C.P. art. 2123(A) (“No security is required for a devolutive appeal.”); id. art. 2123(B) (fixing the amount of security in a suspensive appeal as, generally, the judgment amount plus interest or party damage from delay).
  • 4A suspensive appeal literally “suspends the effect or the execution of an appealable order or judgment,” whereas a devolutive appeal does not. Compare La. C.C.P. art. 2123, with La. C.C.P. art. 2087.
  • 5Compare La. C.C.P. art. 2123, with La. C.C.P. art. 2087.
  • 6See La. R.S. 13:4522 (“The defendant before pleading in all cases may by motion demand and require the plaintiff or intervenor to give security for the cost in such case . . . . This section shall not apply to . . . cases brought in forma pauperis . . . .”).
  • 7See, e.g., Tate v. Ochsner Clinic Found., 16-140 (La. App. 5 Cir. 12/7/16), 205 So. 3d 996, 1001 (“[W]e find that the granting of pauper status under La. C.C.P. art 5181 et seq. relieved plaintiffs of the statutory bond requirement provided in La. R.S. 40:1299.47(I)(2)(c).”).
  • 8La. C.C.P. art. 2088 (“[T]he trial court maintains jurisdiction to convert the suspensive appeal to a devolutive appeal, except in an eviction case.”); see, e.g., Frandria v. Holden, 2020-0410, p. 5 (La. App. 1 Cir. 12/30/20), 319 So. 3d 332, 337 (citation omitted) (“Frandria is proceeding in the trial court in forma pauperis and would not be entitled to a suspensive appeal. Accordingly, we treat this appeal as a devolutive appeal.”); Muller v. Fort Pike Volunteer Fire Dep’t, 2019-0156, p. 6 (La. App. 4 Cir. 6/26/19), 275 So. 3d 927, 932 (“The record does not reflect that Mr. Muller paid the appeal bond. Accordingly, we convert his suspensive appeal to a devolutive appeal.”); White v. Rogers, 04-1434, pp. 3–4 (La. App. 5 Cir. 4/26/05), 905 So. 2d 1088, 1090 (“The suspensive appeal was erroneously granted because no security was provided . . . . Plaintiffs are entitled to a devolutive appeal, which is timely, since the motion for appeal was filed on July 9, 2004, or within 60 days from the expiration of the 7 day delay for applying for a new trial . . . .”); Bass v. Serv. Pipe Trucking Co., Inc., 267 So. 2d 63, 63–64 (La. App. 3 Cir. 1972) (“Insofar as the appeal purports to suspend the judgment, it must be dismissed. However, since the order granting plaintiff-appellant’s appeal in forma pauperis was signed within the delay allowed for a devolutive appeal, this appeal will be upheld as a devolutive appeal.”).
  • 9For a more detailed discussion of appellate practice in eviction cases, see Section 9 of the chapter on landlord-tenant law.
  • 10La. C.C.P. art. 2088 (“[T]he trial court maintains jurisdiction to convert the suspensive appeal to a devolutive appeal, except in an eviction case.”).
  • 11New Orleans Hat Attack, Inc. v. New York Life Ins. Co., 95-0055, pp. 3–4 (La. App. 4 Cir. 11/30/95), 665 So. 2d 1186, 1189.
  • 12Jenkins v. Johnson, 2019-0985, p. 1 (La. App. 1 Cir. 7/29/19), 2019 WL 3407178.
  • 13Id.
  • 14Id. The First Circuit is not alone in coming to this rent-as-suspensive-bond conclusion. See Windmill Creek N. - 1st Lake v. Gowan, 20-85, pp. 1–2 (La. App. 5 Cir. 2/21/20), 2020 WL 875252; 429 Bourbon St., LLC v. RMDR Investments, Inc., 2016-0800, p. 22 (La. App. 4 Cir. 11/15/17), 230 So. 3d 256, 270 (“In eviction matters, the district court has the discretion to set the amount of the suspensive appeal bond in an amount sufficient to protect the appellee against all such damage as he may sustain as a result of the appeal.”); Lakewind E. Apartments v. Poreé, 629 So. 2d 422, 423 (La. App. 4 Cir. 1993). The Lakewind court described the situation as the trial court’s selection between two options: In order to set a suspensive appeal bond sufficient to protect the appellee in this type of case, the trial court has two choices. One alternative would be to attempt to estimate the amount of time the case might be on appeal, then multiply that number of months times the rental price. The other alternative would be to do exactly what the trial judge did in this case and require the appellant to post the rental amounts as the rent becomes due. Lakewind E. Apartments, 629 So. 2d at 423. Building on this background, the Windmill Creek court explained why rent is perfectly suited as a bond alternative: Because the purpose of a bond is to protect the appellee against damages he may sustain as a result of the appeal, and because we recognize that the damages typically contemplated in cases of eviction are the potential lost rents to the landlord while an appeal is pending, we find that, in light of Relator’s pauper status, to the extent that the trial court ordered Relator to post $764 immediately into the court registry as bond, we find that the trial court abused its discretion. The landlord is unlikely to sustain any monetary damages while awaiting trial de novo in this case because the February rent has been paid, and the Relator has agreed to place the March rent into the court registry prior to the trial scheduled on March 3, 2020. We find this to be an acceptable alternative. Therefore, we vacate the lower court’s ruling, which conditioned the stay of the judgement of eviction upon the immediate posting of $764 rent into the registry court, and instead order Relator to pay her rent into the registry of the court when it becomes due in March 2020. Windmill Creek N. - 1st Lake, 20-85, pp. 1–2, 2020 WL 875252.
  • 15La. C.C.P. art. 4735. Even in the case of a suspensive bond, the IFP litigant may be permitted to post a surety bond, rather than a cash bond. See La. C.C.P. art. 5121 (emphasis added) (“When a party to a judicial proceeding is required by law or order of court to furnish security, any bond so furnished shall be made payable to the clerk of the trial court in which the proceeding was brought.”). When considering an appeal bond, “the trial court has jurisdiction [to] . . . [t]est the solvency of the surety on the appeal bond as of the date of its filing or subsequently, consider objections to the form, substance, and sufficiency of the appeal bond.” La. C.C.P. art. 2088. As the Fourth Circuit determined, “The trial court is vested with the jurisdiction to test the solvency of the surety, the substance, and sufficiency of the appeal bond; however we do not find that the trial court is vested with the discretion of mandating the type of the appeal bond.” Filmore Parc Apartments v. Howard, No. 2004-C-1299 (La. App. 4 Cir. 7/30/2004).
  • 16La. C.C.P. art. 4912.
  • 17La. C.C.P. art. 4925 (requiring an appeal filing within fifteen days of judgment).

11 Effect of Settlement

11 Effect of Settlement aetrahan Mon, 05/01/2023 - 11:39

Despite parties’ broad statutory authority to compromise their disputes, Louisiana law places additional restrictions on IFP litigants’ ability to settle their claims. Applying general contract rules,1  Louisiana statutes provide no specific requirements for extra-judicial settlements of claims other than they be in writing or recited in open court2  and indicate the parties’ intent to extinguish obligations.3  However, a case involving an IFP litigant has an additional requirement: “No compromise shall be effected unless all costs due these officers have been paid.”4  If the settlement agreement is silent on this clear requirement, the Louisiana Code of Civil Procedure provides that each party is liable for all court costs.5  Further, no action may be dismissed by the court without payment of the costs first, with the clerk of court having the power to place a “lien for the payment of such costs superior to that of any other party on any monies or other assets transferred in settlement of such claim or satisfaction of such judgment” and even to “be entitled to collect reasonable attorney’s fees in any action to enforce this lien for the payment of such costs.”6

  • 1See La. C.C. art. 3071 (“A compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship.” (emphasis added)).
  • 2La. C.C. art. 3072; see also Feingerts v. State Farm Mut. Auto. Ins. Co., 2012-1598, p. 11 (La. App. 4 Cir. 6/26/13), 117 So. 3d 1294, 1301 (“[N]o specific form is required for written compromises.”).
  • 3See Alexius v. Booth, 2020-0332, p. 3 (La. App. 4 Cir. 1/13/21), 312 So. 3d 1122, 1124; Morris, Lee & Bayle, LLC v. Macquet, 2014-1080, pp. 15–16 (La. App. 4 Cir. 3/23/16), 192 So. 3d 198, 209 (citing Trahan v. Coca Cola Bottling Co. United, Inc., 04–0100, p. 10 (La. 3/2/05), 894 So. 2d 1096, 1104) (“An enforceable compromise agreement has two essential elements: (1) mutual intention of preventing or putting an end to the litigation and (2) reciprocal concessions of the parties to adjust their differences.”).
  • 4La. C.C.P. art. 5187.
  • 5Id.
  • 6Id.

12 Special Cases

12 Special Cases aetrahan Mon, 05/01/2023 - 11:43

12.1 Incarcerated Litigants

12.1 Incarcerated Litigants aetrahan Mon, 05/01/2023 - 11:44

Of all IFP applicants, incarcerated litigants face the highest procedural and practical hurdles. Largely in conformity with federal restrictions on prisoner IFP applications,1  Louisiana’s Prison Litigation Reform Act effectively denies prisoners the privilege to proceed in litigation without payment of court costs.2  Put simply, a prisoner can receive on-the-books IFP status but is still assessed court fees, which the court receives through “an initial partial filing fee of twenty percent of the greater of the average monthly deposits to the prisoner’s account, or the average monthly balance in the prisoner's account for the six-month period immediately preceding the filing of the petition, notice of appeal, or writ application.”3  The incarcerated IFP applicant must file the same materials as all other applicants with the exception of a third-party affidavit. Additionally, the incarcerated applicant must “submit a certified copy of the trust fund account statement or institutional equivalent for the six-month period immediately preceding the filing . . . .”4  While the court considers the IFP application, the action is stayed; during this time, any additionally accrued fees will prolong the stay “until all such additional costs are paid” by the prisoner.5  Further, even after an IFP application is granted, the stay remains “until all costs of court or fees due the clerk by the prisoner in this matter are paid.”6  If all costs are not paid by the prisoner within three years, Louisiana courts will dismiss the action without prejudice.7  If a court determines a suit was filed for a malicious purpose, “the court may order the revocation of such earned good time credit that has not yet been vested . . . .”8

The apparent harshness of Prison Litigation Reform Act is mollified slightly by its scope. It covers civil actions alone, and the automatic stay does not apply in cases seeking post-conviction relief, appealing parole determinations, seeking review of Department of Public Safety and Corrections decisions, asserting constitutional right violations, or requesting injunctive relief due to “imminent danger of serious physical injury . . . .”9

Courts look to policy considerations to justify the apparent IFP contradictions. IFP restrictions on inmate applicants, the legislation asserts, help the justice system avoid repeat frivolous, malicious, and groundless suits.10  Attentive to that legislative intent, Louisiana courts have determined that the restrictions do not violate the constitutionally protected rights of court access,11  equal protection,12  or due process.13

Links to forms for the affidavits for use in district court and on appeal are found Section 15.

  • 128 U.S.C. § 1915.
  • 2La. R.S. 15:1186–91.
  • 3La. R.S. 15:1186(A)(2).
  • 4La. R.S. 15:1186(A)(1).
  • 5La. R.S. 15:1186(B)(2)(a).
  • 6Id.
  • 7La. R.S. 15:1186(B)(2)(c).
  • 8La. R.S. 15:1190.
  • 9La. R.S. 15:1186(B)(2)(d).
  • 10La. R.S. 15:1187. In Rhone v. Ward, when describing the “legitimate state interest,” the court noted, “An indigent prisoner—who knows that his or her lawsuit may be deemed abandoned and dismissed for failure to pay costs—may be persuaded to weigh the costs of litigation prior to filing a civil lawsuit.” 45,008, p. 6 (La. App. 2 Cir. 2/3/10), 31 So. 3d 591, 595.
  • 11Rhone, 45,008, p. 6, 31 So. 3d at 595 (“[A] prisoner’s right to sue for civil damages does not involve a fundamental constitutional right.”).
  • 12Id. (“Neither indigents nor prisoners are suspect classes for equal protection purposes. Additionally, an inmate does not have a fundamental right to file a cost-free suit for damages.”).
  • 13Vincent v. Creed, 38,120, p. 5 (La. App. 2 Cir. 12/30/05), 917 So. 2d 1289, 1292.

12.2 Expungements

12.2 Expungements aetrahan Mon, 05/01/2023 - 11:49

Testing the line between mandatory court costs and discretionary processing fees, litigants in expungement cases have had restricted recourse to IFP status through legislative silence and, more recently, application by local officials. The availability of fee waivers in expungement cases was not entirely clear prior to 2014.1  The 2014 reworking of expungement procedures standardized fee-waiver requirements specific to expungements.2  Seeking to expand these narrow fee-waiver options, the Louisiana Legislature in 2018 added an even more specific provision: “Notwithstanding any provision of law to the contrary, an applicant for the expungement of a record . . . may proceed in forma pauperis in accordance with the provisions of Code of Civil Procedure Article 5181 et seq.”3

This incorporation of the civil IFP status into the Code of Criminal Procedure means that a person seeking an expungement may proceed in forma pauperis. However, if the expungement is unsuccessful, “appeal costs may be assessed against him.”4  Nevertheless, and despite the clear language of the 2018 amendment, courts, advocates, and expungement seekers have struggled to make use of IFP status in expungement cases.5

  • 1See La. R.S. 44:9, repealed by Act No. 145, 2014 La. Acts 1; State ex rel. Thompson v. State, 2009-1731, p. 1 n.2 (La. App. 1 Cir. 4/1/10), 2010 WL 1254715 (litigant proceeding with IFP status in pre-2014 expungement case).
  • 2Act No. 145, 2014 La. Acts 19–20.
  • 3Act No. 404, 2018 La. Acts 1.
  • 4See Thompson, 2009-1731, p. 1 n.2, 2010 WL 1254715.
  • 5For a more detailed discussion of the IFP process in expungement proceedings, see Section 6.4 of this manual’s chapter on expungements in Louisiana. For litigation surrounding fee waivers and IFP status, see E.B. v. Landry (E.B. I), CV 19-862-JWD-SDJ, 2021 WL 1201667 (M.D. La. Mar. 30, 2021); E.B. v. Landry (E.B. II), CV 19-862-JWD-SDJ, 2022 WL 1144834 (M.D. La. Apr. 18, 2022).

12.3 Domestic Violence

12.3 Domestic Violence aetrahan Mon, 05/01/2023 - 11:54

Domestic violence victims have additional means to avoid paying court fees. First, as with other types of litigation, the general IFP provisions apply. The standard affidavit form presumes victims may seek IFP status, permitting the applicant to withhold address and telephone number in situations of abuse.1

Second, a litigant also has cost-waiving remedies built into the legislation for temporary restraining orders. When a temporary restraining order or protective order is sought, the victim “shall not be required to prepay or be cast with court costs,” and the abuser “may be cast for all costs.”2  This fee waiver applies “regardless of the ability of the plaintiff to pay court costs.”3  Further, as litigation surrounding the abuse continues, the division of costs persists:

[A]ll court costs, attorney fees, costs of enforcement and modification proceedings, costs of appeal, evaluation fees, and expert witness fees incurred in maintaining or defending any proceeding concerning domestic abuse assistance . . . shall be paid by the perpetrator of the domestic violence, including all costs of medical and psychological care for the abused adult, or for any of the children, necessitated by the domestic violence.4

The ongoing waiver also applies to subsequent temporary restraining orders.5  Unlike normal IFP procedures, the measure for a court to require costs from the petitioner seeking protection from abuse is not an unsuccessful resolution, but a determination that “the petition was frivolous[.]”6  Even in the case of frivolousness, however, the fee allotment is at the court’s discretion.7

  • 1La. Dist. Ct. Rules, Appendix 8.0 (In Forma Pauperis Affidavit) p. 1.
  • 2La. R.S. 46:2134(F)–(G).
  • 3La. C.C.P. art. 3603.1.
  • 4La. R.S. 46:2136.1(A).
  • 5Jimenez v. Jimenez, 05-645, p. 4 (La. App. 5 Cir. 1/31/06), 922 So. 2d 672, 674 (observing that the mandatory verb “shall” required continued fee waiver in a case with the issuance of fourteen temporary restraining orders).
  • 6La. R.S. 46:2136.1(B); see also Vallius v. Vallius, 2010-0870, p. 6 (La. App. 4 Cir. 12/8/10), 53 So. 3d 655, 658 (reversing the trial court’s assessing the petitioner $500 in fees after finding no evidence of petition frivolousness).
  • 7La. R.S. 46:2136.1(B).

13 Attorney Fees

13 Attorney Fees aetrahan Mon, 05/01/2023 - 11:58

An IFP client is not prohibited from being represented by an attorney who is being paid. A 1935 decision from the Second Circuit found a litigant eligible for IFP status even though the litigant had paid for representation, apparently relying on the fact that the litigant’s relative had paid the filing fee.1  The exceptional fact was necessary, as the IFP statute at the time contained an attorney fee prohibition: “[A]ttorneys at law, representing such clients are prohibited from charging fees except such as are contingent upon the amount recovered.”2  Even in the face of a black-letter rule, courts reasoned that the law still had to look to the applicant’s financial status “as a whole”3  and could not consider the possibility of a sizable award generated from successful representation.4  Eventually, the statute dropped mention of attorney fees completely:

The former prohibition against attorneys charging fees in these cases except those contingent on the amount recovered, contained in the indirect source of this article, has not been retained in the Code. This prohibition was both unnecessary and unrealistic. The provisions of this Chapter will be used primarily in damage suits and workmen’s compensation cases in which, under the universal custom throughout the state, contingent fees are the only ones charged. To this extent, the prohibition was unnecessary. Further, there are some types of cases in which there are no pecuniary demands, and hence no amount which can ever be recovered. There is no reason why small fees should not be charged in such cases. To this extent, the former prohibition was unrealistic.5

As the above comment recognizes, a contingency fee is the most common type of fee agreement in the IFP context. A litigant can maintain IFP status even if the contract provides that the attorney will “advance all costs of litigation with reimbursement by the client at the conclusion of the suit.”6  Louisiana courts are consistent that the relevant inquiry is the IFP applicant’s indigency and that contingency-fee contracts should be ignored.7

One final attorney-fee wrinkle is the appointment of a curator. Although IFP status itself does not provide a litigant with an attorney, it may provide one for the litigant’s out-of-state opponent. In Jones v. Jones, the Supreme Court carefully weighed both the litigant’s IFP status and the law’s requirement of the appointment of a curator when “the defendant proceeded against is outside the jurisdiction of our courts.”8  As a rule, the fees for a curator are shouldered by the petitioning party.9  Ruling on equal protection grounds, the court determined that refusing to include curator fees within IFP coverage would deny indigent litigants the right to divorce if an out-of-state spouse could not be served.10  Applying this rationale, the Fourth Circuit stated the rule even more clearly: “A plaintiff proceeding in forma pauperis is not required to pay a curator’s fee.”11

  • 1Jeffcoat v. Hammons, 160 So. 182, 184 (La. App. 2 Cir. 1935).
  • 2Act No. 156, 1912 La. Acts 1, as amended by Act No. 260, 1918 La. Acts.
  • 3Jeffcoat, 160 So. at 184–85 (“[W]e do not think a violation of the quoted provision would operate as a bar to the litigant’s right to avail himself of the act as a whole, if his financial condition and the facts of his case otherwise disclosed eligibility therefor.”).
  • 4Loftin v. Frost-Johnson Lumber Co., 63 So. 252, 252 (La. 1913).
  • 5La. C.C.P. art. 5182 cmt.
  • 6Jackson v. Aetna Life & Cas. Co., 392 So. 2d 1073, 1074 (La. App. 3 Cir. 1980).
  • 7See, e.g., id. at 1074–75 (“[I]n any event, we conclude that the right of an indigent should be determined by his ability to pre-pay the costs without examining any contingency fee contract entered into between the indigent and his attorney.”); Hudson v. Williams Olefins Dev., LLC, 2017-0705, p. 1 (La. App. 1 Cir. 7/11/17), 2017 WL 2981869 (“Consideration of the contingency fee agreements between plaintiffs and their counsel should not affect their pauper status.”).
  • 8Jones v. Jones, 297 So. 2d 198, 200 (La. 1974); see also La. C.C.P. art. 5091(A) (providing that, in curator cases, “[t]he court shall appoint an attorney at law to represent the defendant . . . .”).
  • 9La. C.C.P. art. 5096 (“The court shall allow the attorney at law appointed to represent a defendant a reasonable fee for his services, which shall be paid by the plaintiff, but shall be taxed as costs of court.”).
  • 10Jones, 297 So. 2d at 200.
  • 11Warren v. Warren, 622 So. 2d 864, 866 (La. App. 4 Cir. 1993).

14 Conclusion

14 Conclusion aetrahan Mon, 05/01/2023 - 13:21

Through in forma pauperis status, Louisiana law provides essential court access to financially needy litigants. Although not a firm right, IFP status is granted by courts with the liberal application of statutes to on-the-ground, financial realities. Opening the courthouse doors to all litigants, IFP status still is not without its risks, specifically the delayed but binding bill at the end of unsuccessful litigation. Nonetheless, the privilege is a lifeline to many Louisiana litigants, preserving court access and due process by providing the basic services of court operation.

15 Affidavit Forms

15 Affidavit Forms aetrahan Mon, 05/01/2023 - 13:22

The Louisiana Supreme Court provides several IFP affidavits as pdf forms: