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.

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).

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).