4.3 Indigency Without Presumptions

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.”).