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

Disclaimer: The articles in the Gillis Long Desk Manual do not contain any legal advice.