2020 Georgia Code
Title 9 - Civil Practice
Chapter 15 - Court and Litigation Costs
§ 9-15-2. Affidavit of Indigence; Procedure When Filing Party Not Represented by Counsel

Universal Citation: GA Code § 9-15-2 (2020)
    1. When any party, plaintiff or defendant, in any action or proceeding held in any court in this state is unable to pay any deposit, fee, or other cost which is normally required in the court, if the party shall subscribe an affidavit to the effect that because of his indigence he is unable to pay the costs, the party shall be relieved from paying the costs and his rights shall be the same as if he had paid the costs.
    2. Any other party at interest or his agent or attorney may contest the truth of an affidavit of indigence by verifying affirmatively under oath that the same is untrue. The issue thereby formed shall be heard and determined by the court, under the rules of the court. The judgment of the court on all issues of fact concerning the ability of a party to pay costs or give bond shall be final.
  1. In the absence of a traverse affidavit contesting the truth of an affidavit of indigence, the court may inquire into the truth of the affidavit of indigence. After a hearing, the court may order the costs to be paid if it finds that the deposit, fee, or other costs can be paid and, if the costs are not paid within the time permitted in such order, may deny the relief sought.
  2. The adjudication of the issue of indigence shall not affect a decision on the merits of the pending action.
  3. When a civil action is presented for filing under this Code section by a party who is not represented by an attorney, the clerk of court shall not file the matter but shall present the complaint or other initial pleading to a judge of the court. The judge shall review the pleading and, if the judge determines that the pleading shows on its face such a complete absence of any justiciable issue of law or fact that it cannot be reasonably believed that the court could grant any relief against any party named in the pleading, then the judge shall enter an order denying filing of the pleading. If the judge does not so find, then the judge shall enter an order allowing filing and shall return the pleading to the clerk for filing as in other cases. An order denying filing shall be appealable in the same manner as an order dismissing an action.

(Ga. L. 1955, p. 584, §§ 1, 2; Ga. L. 1982, p. 933, § 1; Ga. L. 1983, p. 3, § 7; Ga. L. 1984, p. 22, § 9; Ga. L. 1985, p. 1256, § 1.)

Cross references.

- Filing of affidavit of indigence for renewal of action after dismissal or discontinuance, § 9-2-63.

Editor's notes.

- Ga. L. 1985, p. 1256, § 2, not codified by the General Assembly, provided that that Act would apply to actions filed or presented for filing on or after July 1, 1985.

JUDICIAL DECISIONS

ANALYSIS

  • General Consideration
  • Application

General Consideration

Constitutionality.

- Since there is no constitutional per se right to appeal, the defendant suffers no denial of due process because of the provision of O.C.G.A. § 9-15-2 that the trial court's findings concerning a party's ability to pay costs or post bond are not subject to review. Penland v. State, 256 Ga. 641, 352 S.E.2d 385 (1987).

When the defendant did not claim that the defendant was being treated differently from other individuals similarly situated in regard to the provisions of O.C.G.A. § 9-15-2, i.e., that findings of the court concerning the ability of a party to pay costs shall be final, there was no merit to the defendant's claim that the defendant was suffering discrimination because the defendant was indigent. Penland v. State, 256 Ga. 641, 352 S.E.2d 385 (1987).

O.C.G.A. § 9-15-2 does not relieve an indigent inmate from paying costs required under O.C.G.A. §§ 9-15-1 and9-15-11. Newsome v. Graham, 254 Ga. 711, 334 S.E.2d 183 (1985).

Previously dismissed federal lawsuits not counted under three strikes provision.

- Trial court erred in ruling that an inmate's previously dismissed federal lawsuits counted as strikes under the three strikes provision of Georgia's Georgia Prison Litigation Reform Act, O.C.G.A. § 42-12-7.2, because lawsuits in federal district court did not qualify as strikes under the statute since the statute unambiguously included only courts created by the constitution and laws of Georgia. Wright v. Brown, 336 Ga. App. 1, 783 S.E.2d 405 (2016).

Documents could not be construed as proper affidavit.

- Plaintiff filing pro se had not filed anything that could be construed as an affidavit of indigency under Ga. Unif. Super. Ct. R. 36.10 and O.C.G.A. § 9-15-2; the plaintiff had provided a document entitled "motion to proceed in forma pauperis" but had not had the document notarized, and a referenced "application to proceed in forma pauperis" was not included in the record. Anderson v. Hardoman, 286 Ga. App. 499, 649 S.E.2d 611 (2007).

No further affidavit of indigence when affidavit filed in prior action.

- Provision in subsection (a) of O.C.G.A. § 9-15-2 that an affidavit of indigence relieves a party of "any deposit, fee, or other cost" requires that when a plaintiff files such an affidavit upon bringing an action, takes a voluntary dismissal, then seeks to renew the action, no payment of accrued costs and no further affidavit of indigence are required for the filing of the renewal action. McKenzie v. Seaboard Sys. R.R., 173 Ga. App. 402, 326 S.E.2d 502 (1985).

Trial court erred by denying the defendant's indigent status because, although the trial court may have attempted to inquire into the validity of the affidavit, the court failed to hold the hearing required by O.C.G.A. § 9-15-2, and without a traverse or a hearing, the defendant's affidavit stood unrebutted in the record and the defendant should have been relieved from paying costs without any adverse impact on the defendant's right to pursue a legal remedy. Williams v. DeKalb County, 355 Ga. App. 106, 842 S.E.2d 570 (2020).

Hearing on contested affidavit not mandated.

- Although paragraph (a)(2) of O.C.G.A. § 9-15-2 provides that the matter of indigence "shall be heard and determined by the court, under the rules of the court," after a party at interest or the party's agent has contested the truth of the affidavit of indigence, the statute does not mandate an oral hearing. Morris v. DOT, 209 Ga. App. 40, 432 S.E.2d 638 (1993).

Separate hearing on court's inquiry into validity of affidavit.

- In a dispossessory action, an inquiry by the court in the absence of a traverse affidavit into the truthfulness of a pauper's affidavit filed by the defendant should have taken place during a separate hearing and the defendant was entitled to adequate notice of such hearing. Walker v. Crane, 216 Ga. App. 765, 455 S.E.2d 855 (1995).

No hearing required if affidavit invalid.

- Affidavit of indigence which did not contain a jurat was invalid and the trial court therefore was authorized to rule on the affiant's motion without a hearing. D'Zesati v. Poole, 174 Ga. App. 142, 329 S.E.2d 280 (1985).

Trial court's ruling on indigency nonreviewable.

- Ruling of the trial court on factual issue of appellant's indigency is final and not subject to appellate review. Harris v. State, 170 Ga. App. 726, 318 S.E.2d 315 (1984).

Trial court's findings that the plaintiff was able to pay the costs of preparing a record is not reviewable even though no opposing affidavit challenging the plaintiff's affidavit of indigency was filed. Saylors v. Emory Univ., 187 Ga. App. 460, 370 S.E.2d 625, cert. denied, 187 Ga. App. 908, 370 S.E.2d 625 (1988).

Ordinarily, under O.C.G.A. § 5-6-47(b) and subsection (a)(2) of O.C.G.A. § 9-15-2, a trial court's findings concerning a party's indigency are not reviewable in cases when the affidavit of indigency has been traversed by an opposing affidavit. Quaterman v. Weiss, 212 Ga. App. 563, 442 S.E.2d 813 (1994).

In a breach of contract suit brought by an oncologist against a corporation, the corporation's failure to submit an opposing affidavit to the oncologist's pauper's affidavit did not alter the fact that the trial court's findings regarding the oncologist's indigency were not subject to appellate review. Under O.C.G.A. §§ 5-6-47(b) and9-15-2(a)(2), a trial court's ruling regarding indigency was final and not subject to appellate review; the proper forum for determining the truth of a pauper's affidavit was in the trial court. Mitchell v. Cancer Carepoint, Inc., 299 Ga. App. 881, 683 S.E.2d 923 (2009).

Findings of fact not required.

- There is no statutory authority which requires that findings of fact be made in an order denying a motion to proceed in forma pauperis. Harris v. State, 170 Ga. App. 726, 318 S.E.2d 315 (1984).

Court may not prohibit filing of habeas complaint.

- Subsection (d) of O.C.G.A. § 9-15-2, which permits a trial court to deny the filing of a pro se in forma pauperis complaint after determining that on the complaint's face the pleading completely lacks justiciable law or fact, was not meant to apply to habeas corpus proceedings; therefore, a court may address a petition for habeas corpus only after the petition has been filed. Giles v. Ford, 258 Ga. 245, 368 S.E.2d 318 (1988).

In absence of traverse to affidavit, error to deny in forma pauperis motion.

- In the absence of a traverse to the affidavit, it is error to deny the appellant's motion to proceed in forma pauperis. When this error occurs, the appellant must be reimbursed for all costs actually paid by the appellant because of the requirements of O.C.G.A. § 5-6-46. However, the appellant is not entitled to be reimbursed for attorney's fees incurred during the appeal. Heath v. McGuire, 167 Ga. App. 489, 306 S.E.2d 741 (1983).

Free transcript required.

- Prior to the 1982 amendment of O.C.G.A. § 9-15-2, the trial court was required to grant a motion for an in forma pauperis copy of the transcript in the absence of a traverse. Quick v. State, 166 Ga. App. 492, 304 S.E.2d 916 (1983).

Refusal to file pleading absent justiciable issues.

- When the pleading sought to be filed by the pro se plaintiff demonstrated a complete absence of any justiciable issue of law or fact, the trial court did not err in entering an order denying filing of the pleading against any of the parties. Hawkins v. Rice, 203 Ga. App. 537, 417 S.E.2d 174 (1992).

Filing of a pro se plaintiff's complaint was properly denied since the claims alleging wrongdoing by officials did not present justiciable issues; no facts were alleged showing illegal conduct and bald assertions of impropriety were insufficient absent specific allegations as to how the defendant's conduct violated the law. Williams v. Skandalakis, 265 Ga. 693, 461 S.E.2d 226 (1995).

Sovereign immunity results in no justiciable issue.

- Trial court properly refused to allow the plaintiff's pro se complaint based on state law and damage claims pursuant to 42 U.S.C. § 1983 when such claims are barred by a sovereign immunity defense, thus presenting no justiciable issue. Mosier v. State Bd. of Pardons & Paroles, 213 Ga. App. 545, 445 S.E.2d 535 (1994), cert. denied, 5 U.S. 1040, 115 S. Ct. 1409, 131 L. Ed. 2d 295 (1995).

Subsequent order denying filing of a claim was a nullity, when the procedure prescribed in subsection (d) of O.C.G.A. § 9-15-2 was followed, and the judge to whom the claim was presented found that the complaint set forth a justiciable issue and had issued an earlier order directing the clerk to file the pleadings. Barber v. Collins, 194 Ga. App. 385, 390 S.E.2d 633 (1990).

Ruling on ability to pay costs and give bond not reviewable.

- Ruling of the trial court on all issues of fact concerning the ability of a party to pay costs or give bond is final under the provisions of subsection (b) of O.C.G.A. § 9-15-2 and is not subject to review. Morris v. DOT, 209 Ga. App. 40, 432 S.E.2d 638 (1993).

When an inmate's pro se petition for mandamus to compel the inmate's transfer to another prison alleged that because the inmate had served in law enforcement, the inmate faced substantial risk of harm in the facility in which the inmate was housed, and that prison officials were aware of this condition, the denial of the filing of this petition was error because of the fact questions raised therein. Yizar v. Ault, 265 Ga. 708, 462 S.E.2d 141 (1995).

Trial court erred in refusing to allow a prison inmate to proceed on a state law conversion claim against the Georgia Department of Corrections under the Georgia Tort Claims Act (GTCA), O.C.G.A. § 50-21-20 et seq., because the inmate stated a claim for conversion against the Department under the GTCA; the inmate alleged that prison officials wrongfully confiscated the inmate's personal property contrary to the Department's Standard Operating Procedures. Romano v. Ga. Dep't of Corr., 303 Ga. App. 347, 693 S.E.2d 521 (2010).

Trial court did not err in disallowing a prison inmate to file a conversion claim against a warden and corrections officers under the Georgia Tort Claims Act (GTCA), O.C.G.A. § 50-21-20 et seq., because their actions were clothed with official immunity under the GTCA, O.C.G.A. § 50-21-25(b), since they were acting within the scope of their official duties when they confiscated the inmate's personal property; the inmate acknowledged that the Georgia Department of Corrections had to be named as a defendant, which necessarily amounted to a concession that Department employees were not proper defendants, and their alleged tortious conduct occurred while they were acting within the scope of their official duties. Romano v. Ga. Dep't of Corr., 303 Ga. App. 347, 693 S.E.2d 521 (2010).

Trial court did not err in denying a prison inmate's request to proceed in forma pauperis on a claim that the Georgia Department of Corrections, the warden of a state prison, and two corrections officers were liable under 42 U.S.C. § 1983 for the wrongful confiscation of the inmate's personal property because the inmate's attempt to state a § 1983 claim against the warden and officers in their individual capacities failed since the inmate did not adequately allege a violation of rights under the Fourteenth Amendment; neither a state agency nor state officers acting in their official capacities are "persons" susceptible to liability under § 1983. Romano v. Ga. Dep't of Corr., 303 Ga. App. 347, 693 S.E.2d 521 (2010).

Review of denial of pro se pleading.

- In reviewing a decision denying the filing of a pro se pleading pursuant to subsection (d) of O.C.G.A. § 9-15-2, the pleading is construed in the light most favorable to the losing party. Grant v. Byrd, 265 Ga. 684, 461 S.E.2d 871 (1995).

In an appeal from the trial court's denial of permission to a pro se litigant to file the litigant's pleading pursuant to O.C.G.A. § 9-15-2(d) and denial of the litigant's right to proceed as a pauper under § 9-15-2(a)(1), a copy of the complaint, motion to proceed as a pauper, and affidavit of indigence were not part of the record, requiring remand for supplementation. Moore v. City of Statesboro, 340 Ga. App. 45, 796 S.E.2d 10 (2017).

Error to dismiss appeal.

- Trial court's dismissal of an appeal from a summary judgment dismissing a wrongful death claim brought by four children, due to the failure of two of the children to pay costs or submit affidavits of indigency, was in error as to two of the children who filed affidavits of indigency; assuming the children filed true affidavits of indigence (O.C.G.A. § 9-15-2(a)(2), (b)), the children had rights to appeal from the dismissal of the children's proportionate shares of the wrongful death case because: (1) the wrongful death claim was not jointly in all the children or in none of the children; and (2) originally, each child had a separate claim for one-fourth of the value of the decedent's life. Mapp v. We Care Transp. Servs., 314 Ga. App. 391, 724 S.E.2d 790 (2012), cert. denied, No. S12C1111, 2012 Ga. LEXIS 660 (Ga. 2012).

Application

No private right of action regarding deceased's remains.

- Individual was not permitted pursuant to O.C.G.A. § 9-15-2(d) to file a pro se civil complaint related to the final disposition of a family member's remains because no applicable legal authority recognized any private right of action based on alleged violations of O.C.G.A. § 31-21-44, a criminal statute relating to the disposition of human remains. Verdi v. Wilkinson County, 288 Ga. App. 856, 655 S.E.2d 642 (2007), cert. denied, No. S08C0929, 2008 Ga. LEXIS 397 (Ga. 2008).

Petition sufficient to state negligence action.

- When an indigent prisoner filed suit alleging that after the prisoner's fall on a wet floor, the prisoner was left unattended in the prison infirmary for over 14 hours until the prisoner was transported to another medical center for surgery to repair a broken leg, asserted that prison officials were negligent, requested damages for the prisoner's residual pain and disabilities, requested a jury trial, and filed the requisite pauper's affidavit and proceeded in forma pauperis, the petition was more than sufficient to set forth a cause of action under O.C.G.A. § 9-11-8 as it is only necessary that the defendants be placed on notice of the claim against the defendants. Gonzalez v. Zant, 199 Ga. App. 13, 403 S.E.2d 880 (1991).

Refund of filing fee.

- Trial court did not err by denying a client's motion under O.C.G.A. § 9-15-2(a)(1) for a refund of the filing fee paid in the client's initial legal malpractice action after granting the client's right to proceed in forma pauperis because the client failed to provide any authority to support the contention that a trial court was required to direct the clerk to refund a filing fee paid before the filing of a pauper's affidavit. Quarterman v. Cullum, 311 Ga. App. 800, 717 S.E.2d 267 (2011), cert. denied, No. S12C0297, 2012 Ga. LEXIS 179 (Ga. 2012); cert. dismissed, U.S. , 133 S. Ct. 388, 184 L. Ed. 2d 10 (2012).

Consideration of inmate's pro se pleadings.

- Pleadings of an inmate proceeding pro se are treated with considerable indulgence, and a complaint should not be dismissed without filing unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the plaintiff's claim which would entitle the plaintiff to some relief. Jackson v. Zant, 210 Ga. App. 581, 436 S.E.2d 771 (1993).

When an inmate sought permission to commence a pro se civil action against the warden alleging inhumane and oppressive treatment, in that the inmate was forced to sleep on the floor for several months, and making a claim for money damages, the superior court erred in denying the filing of the complaint in toto; even though there was no issue of law or fact as to the claim for money damages, it was conceivable that a judge would order the provision of suitable bedding for the inmate. Jackson v. Zant, 210 Ga. App. 581, 436 S.E.2d 771 (1993).

Trial court erred in denying the filing of the pro se appellant's civil action under O.C.G.A. § 9-15-2(d) because the complaint stated justiciable claims against the appellee based on their alleged failure to provide the appellant with adequate, nutritional, and safely prepared food, as required by state law and the Department of Corrections policies, and was adequate to assert a claim for violations of the appellant's civil rights under 42 U.S.C. § 1983. Robbins v. Anderson, 346 Ga. App. 125, 816 S.E.2d 60 (2018).

Failure to conduct a hearing on prisoner's pauper's affidavit.

- Trial court erred by failing to conduct a hearing on a prisoner's claim of indigence as the plain language of O.C.G.A. § 9-15-2(b) required a hearing before the court could order costs to be paid and there was nothing in the statute that allowed the court, on the court's own, to inquire into the truth of a pauper's affidavit to order the payment of court costs without a hearing. Lee v. Batchelor, 345 Ga. App. 559, 814 S.E.2d 416 (2018).

Duty to obtain transcript for appeal in wrongful foreclosure.

- Homeowner's appeal in a wrongful foreclosure case was properly dismissed due to the homeowner's failure to file the transcript of the summary judgment proceedings for more than eight months after the deadline provided in O.C.G.A. § 5-6-42; the homeowner's proceeding in forma pauperis, O.C.G.A. § 9-15-2, did not excuse the homeowner's failure to timely obtain the transcript. Ashley v. JP Morgan Chase Bank, N.A., 327 Ga. App. 232, 758 S.E.2d 135 (2014).

Denial of civil complaint when habeas appropriate.

- Refusal of prisoner's complaint against district attorneys and assistant district attorneys for violation of the prisoner's constitutional rights and false imprisonment was proper since a petition for a writ of habeas corpus was the appropriate procedure for challenging the conduct of the defendants. Battle v. Sparks, 211 Ga. App. 106, 438 S.E.2d 185 (1993).

Dismissal of application to proceed in forma pauperis as untimely was not authorized.

- In a dispossessory proceeding, the trial court erred in denying the tenant's application to proceed in forma pauperis as untimely as the trial court erred in considering the tenant's application under O.C.G.A. § 9-15-2 because, assuming arguendo that the statute applied to notices of appeal filed in the superior court, the language of the statute did not authorize a dismissal for failure to file a timely application to proceed in forma pauperis; and the trial court made no determination that it could not be reasonably believed that the trial court could not grant any relief against any party named in the pleading. Freeman v. The Park at Hairston Apartments, 341 Ga. App. 321, 800 S.E.2d 21 (2017).

Denial of indigence was error.

- Denial of the plaintiff's affidavit of indigence was error since it was not contested and there was no evidence showing that the plaintiff was not indigent. Barham v. Levy, 228 Ga. App. 594, 492 S.E.2d 325 (1997).

Trial court erred by refusing an inmate's request to proceed in forma pauperis under O.C.G.A. § 9-15-2(d) and to file the inmate's complaint because the court could not decipher the inmate's complaint since construing the complaint in the light most favorable to the inmate, the inmate did state justiciable claims for false arrest, false imprisonment, and violation of the inmate's civil rights. Thompson v. Reichert, 318 Ga. App. 23, 733 S.E.2d 342 (2012).

Denial of indigency appropriate.

- Mortgagor's purported affidavit of indigency was found to be invalid and was not subject to review pursuant to O.C.G.A. § 9-15-2(b), after the mortgagor had been previously ordered to pay attorney's fees and costs arising from a foreclosure action wherein the mortgagor refused to surrender the property, because the trial court found that the mortgagor was not indigent based on the mortgagor's own statements to the court and the court's knowledge of the mortgagor and the mortgagor's prior actions within the proceeding as well as the traverse of the mortgagor's affidavit of indigency by the mortgagee. Hurt v. Norwest Mortg., Inc., 260 Ga. App. 651, 580 S.E.2d 580 (2003).

Under O.C.G.A. § 9-15-2(b), a trial court has the authority to inquire into the truth of the affidavit of indigency even in the absence of a challenge from the opposing party. Anderson v. All Am. Quality Foods, 333 Ga. App. 533, 773 S.E.2d 389 (2015).

Trial court did not err by denying the plaintiff indigent status and refusing to relieve the plaintiff of paying the costs of a first appeal because under O.C.G.A. § 9-15-2(b), the trial court had the authority to inquire into the truth of the affidavit of indigency even in the absence of a challenge from the opposing party and the plaintiff did not attend the hearing and did not challenge the trial court's finding that the plaintiff's absence was without legal reason or excuse. Anderson v. All Am. Quality Foods, 333 Ga. App. 533, 773 S.E.2d 389 (2015).

Nine month delay in ruling on motion for mandamus.

- Trial court's order denying the filing of a mandamus petition was error because a justiciable issue was patent from the face of the petition, namely, whether the judge failed to comply with the duty to timely rule on the pending motion since the record established that the petitioner had been waiting to rule on the motion for nine months, which was considerably outside the maximum period during which the judge was required to decide the pending motion. Bellamy v. Rumer, 305 Ga. 638, 827 S.E.2d 269 (2019).

Cited in Portis v. Evans, 249 Ga. 396, 291 S.E.2d 511 (1982); Whitehead v. Lavoie, 176 Ga. App. 666, 337 S.E.2d 357 (1985); Evans v. City of Atlanta, 189 Ga. App. 566, 377 S.E.2d 31 (1988); Conklin v. Zant, 198 Ga. App. 543, 402 S.E.2d 319 (1991); Barber v. Collins, 201 Ga. App. 104, 410 S.E.2d 444 (1991); McBride v. Gaither, 203 Ga. App. 885, 418 S.E.2d 67 (1992); Vanalstine v. Roach, 265 Ga. 820, 461 S.E.2d 539 (1995); Shelby v. McDaniel, 266 Ga. 215, 465 S.E.2d 433 (1996); Gamble v. Diamond "D" Auto Sales, 221 Ga. App. 688, 472 S.E.2d 446 (1996); Jones v. Townsend, 267 Ga. 489, 480 S.E.2d 24 (1997); Cooper v. State, 235 Ga. App. 66, 508 S.E.2d 447 (1998); In re Carter, 235 Ga. App. 551, 510 S.E.2d 91 (1998); Moore v. First Family Fin. Servs., 246 Ga. App. 89, 539 S.E.2d 598 (2000).

RESEARCH REFERENCES

7C Am. Jur. Pleading and Practice Forms, Costs, § 45.

ALR.

- Attorney's liability under state law for opposing party's counsel fees, 56 A.L.R.4th 486.

What constitutes "fees" or "costs" within meaning of Federal Statutory Provision (28 USCS § 1915 and similar predecessor statutes) permitting party to proceed in forma pauperis without prepayment of fees and costs or security therefor, 142 A.L.R. Fed 627.

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