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.”).

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.”).

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.”).

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.

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’”).