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).

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.

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).

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.