Sonia I. Diaz de Smith v. NSHE, et al.

• Court: District Court, D. Nevada
• Decided: April 7, 2026
• Docket: 2:26-cv-00835
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3

4 Sonia I. Diaz de Smith, 2:26-cv-00835-RFB-MDC 5 Plaintiff, ORDER DENYING APPLICATION TO 6 vs. PROCEED IN FORMA PAUPERIS (ECF NO. 2) 7 NSHE, et al., 8 Defendants.

9 Pro se plaintiff filed an Application to Proceed in Forma Pauperis (“IFP”). ECF No. 2. The 10 Court DENIES plaintiff’s IFP application without prejudice, with leave to refile. 11 I. LEGAL STANDARD 12 13 Under 28 U.S.C. § 1915(a)(1), a plaintiff may bring a civil action “without prepayment of fees or 14 security thereof” if the plaintiff submits a financial affidavit that demonstrates the plaintiff “is unable to 15 pay such fees or give security therefor.” The Ninth Circuit has recognized that “there is no formula set 16 forth by statute, regulation, or case law to determine when someone is poor enough to earn IFP status.” 17 Escobedo v. Applebees, 787 F.3d 1226, 1235 (9th Cir. 2015). An applicant need not be destitute to 18 qualify for a waiver of costs and fees, but he or she must demonstrate that because of his or her poverty 19 he cannot pay those costs and still provide himself with the necessities of life. Adkins v. E.I DuPont de 20 Nemours & Co., 335 U.S. 331, 339 (1948). 21 The applicant's affidavit must state the facts regarding the individual's poverty “with some 22 particularity, definiteness and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) 23 (citation omitted). If an individual is unable or unwilling to verify his or her poverty, district courts have 24 25 the discretion to make a factual inquiry into a plaintiff's financial status and to deny a request to proceed in forma pauperis. See, e.g., Marin v. Hahn, 271 Fed.Appx. 578 (9th Cir. 2008) (finding that the district court did not abuse its discretion by denying the plaintiff's request to proceed IFP because he “failed to 1 verify his poverty adequately”). “Such affidavit must include a complete statement of the plaintiff's 2 personal assets.” Harper v. San Diego City Admin. Bldg., No. 16cv00768 AJB (BLM), 2016 U.S. Dist. 3 4 LEXIS 192145, at 1 (S.D. Cal. June 9, 2016). Misrepresentation of assets is sufficient grounds in 5 themselves for denying an in forma pauperis application. Cf. Kennedy v. Huibregtse, 831 F.3d 441, 443- 6 44 (7th Cir. 2016) (affirming dismissal with prejudice after litigant misrepresented assets on in forma 7 pauperis application). 8 The District of Nevada has adopted three types of IFP applications: a “Prisoner Form” for 9 incarcerated persons and a “Short Form” (AO 240) and “Long Form” (AO 239) for non-incarcerated 10 persons. The Long Form requires more detailed information than the Short Form. The court typically 11 does not order an applicant to submit the Long Form unless the Short Form is inadequate, or it appears 12 that the plaintiff is concealing information about his or her income for determining whether the applicant 13 qualifies for IFP status. When an applicant is specifically ordered to submit the Long Form, the correct 14 form must be submitted, and the applicant must provide all the information requested in the Long Form 15 so that the court is able to make a fact finding regarding the applicant's financial status. See e.g. Greco v. 16 17 NYE Cty. Dist. Jude Robert Lane, No. 215CV01370MMDPAL, 2016 WL 7493981, at 3 (D. Nev. Nov. 18 9, 2016), report and recommendation adopted sub nom. Greco v. Lake, No. 215CV001370MMDPAL, 19 2016 WL 7493963 (D. Nev. Dec. 30, 2016). 20 II. PLAINTIFF'S IFP APPLICATION 21 Plaintiff filed the short form IFP application. ECF No. 2. Plaintiff states that she has no income, 22 but that in the last six months she received $3000 in student loans. Id. She said that she has no money in 23 her bank account and no assets. Id. Plaintiff states that she only has two monthly bills: that she pays 24 $1,200 a month for housing and that she pays $1,616 a month for transportation. Id. 25 2 Plaintiff does not explain how she pays her monthly bills with no money in the bank and no

5 income. Plaintiff states that she is unemployed but does not clarify whether she 1s receiving 3 || unemployment benefits. Plaintiff also does not explain how she pays for other basic needs such as 4 || groceries. Plaintiff states that she pays $1,616 for transportation, which implies that she owns a car, and 5 || that part of that expense is for an auto loan. Yet plaintiff does not disclose that she owns a car in 6 |! response to the question that asks about her assets (such as an automobile). 7 The Court cannot determine if plaintiff qualifies for IFP status. The Court will allow plaintiff |) another opportunity to show that she qualifies for IFP status. Plaintiff must submit the long form ° application on the Court’s approved form. Plaintiff must answer all questions on the long form with detailed explanations about her income and expenses. Plaintiff cannot leave any questions blank or respond that a question is “N/A” without an explanation. In response to question eleven on the long form, plaintiff must explain in detail why she cannot afford the filing fee.

4 IT IS SO ORDERED THAT:

15 1. Plaintiff's Application To Proceed In Forma Pauperis (ECF No. 2) is DENIED without

16 prejudice. 17 1. By May 7, 2026, plaintiff shall either (1) file the long form application to proceed in forma 18 pauperis as specified in the Court’s order or (2) plaintiff must pay the full fee for filing a civil 19 action. 20 2. Failure to timely comply with this Order may result in a recommendation that this case be al dismissed with prejudice. DATED April 7, 2026. pe 7 / 24 Hon iviaxi@iliano dee Nine Til Unixed States Magystrate Judge 25 ff ji j eT}

1 NOTICE 2 Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and 3 4 recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk 5 of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal 6 may determine that an appeal has been waived due to the failure to file objections within the specified 7 time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also held that (1) failure to file 8 objections within the specified time and (2) failure to properly address and brief the objectionable issues 9 waives the right to appeal the District Court's order and/or appeal factual issues from the order of the 10 District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. 11 Dist., 708 F.2d 452, 454 (9th Cir. 1983). Pursuant to LR IA 3-1, plaintiffs must immediately file written 12 notification with the court of any change of address. The notification must include proof of service upon 13 each opposing party’s attorney, or upon the opposing party if the party is unrepresented by counsel. 14 Failure to comply with this rule may result in dismissal of the action. 15

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