Don’t Bother Appealing  Federal Judge Says “appeal of this matter would not be taken in good faith”

David W Nail
David W Nail 
View photos: 1 Last known address:
IN 00000Age: 57  Gender: M
Height: 5 ft. 8 in.
Weight: 155
Build: Average
Race/Ethnicity: White
Eye Color: Hazel



A victory for Freedom of Speech and the People’s Right to Know is secured in Federal Court to start off the new year of 2016. There are a few more to come in the very near future. Fighting off yet another frivolous lawsuit, this one in the United States District Court Western District of Michigan Southern Division, the allegations against Defendants associated with the websites, and (websites) were DISMISSED of all claims.

The Plaintiff, David Nail, had been charged and convicted of Child Abduction in the State of Indiana. As a result of that conviction, government officials released the details of the crime and his mugshot associated with the crime onto the State of Indiana Sex Offender Registry (ISOR). As the information was released as a public record into the public domain, it was legally obtained and republished exactly as depicted by the ISOR on the websites. David Nail decided to utilize the Federal Courts as a means to intimidate and harass the factual republishing of his conviction in an attempt to silence anyone that may expose the truth of his criminal history. He is fortunate Michigan has not yet implemented the Anti-SLAPP legislation (laws addressing strategic lawsuit against public participation – SLAPP) currently under consideration. Laws such as those found in Indiana where the alleged events actually occurred and are currently found in 28 states that have enacted Anti-SLAPP legislation. In some states such as California and Washington the penalties associated with filing such frivolous, abusive and harassment motivated agendas are becoming increasing harsh to the perpetrators – such as David Nail. The consequences of his abuse of process and malicious prosecution when using the Federal Court system to thwart the First Amendment Rights of private citizens could have been turned back upon him with significant penalties. The case being in Michigan, it was simply DISMISSED.

The Dismissal is still a momentous confirmation of the legal validity of the websites, and The Federal Courts continue to Rule with resounding support for the legal right of privately operated websites to make public records released into the public domain available for review by the general populace. In the Michigan Federal Court Order, the Honorable Ellen S. Carmody clearly recognized the ridiculousness of the claims brought forward by David Nail when stating: “The Court need not accept as true, however, factual allegations which are ‘clearly irrational or wholly incredible.’ Denton v. Hernandez, 504 U.S. 25, 33 (1992).”


Once again a Federal Court has reviewed the facts and the applicable laws and has issued an overwhelming Ruling that exonerates the websites of ANY inappropriate conduct. The dictates and protections found in Section 230 of the CDA are applicable in the republishing and online dissemination of the factual details of convictions of sex offenses as those found on the websites. The Honorable Susan E. Carmody addresses the many issues thoroughly and articulates a legal analysis that cannot be improved upon with a synopsis. The best presentation is simply providing the actual words as written:

“Section 230 of the Communications Decency Act (CDA) provides, in relevant part, that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). The term “interactive computer service” is defined as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.” 47 U.S.C. § 230(f)(2). This definition encompasses “broadband providers, hosting companies, and website operators.” Jones v. Dirty World Entertainment Recordings, LLC, 775 F.3d 398, 406 n.2 (6th Cir. 2014) (emphasis added).


Simply stated, § 230 of the CDA “bars lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions – such as deciding whether to publish, withdraw, postpone or alter content.” Id. at 407. It has been recognized that the immunity afforded by § 230 of the CDA “marks a departure from the common-law rule that allocates liability to publishers or distributors of tortious material written or prepared by others.” Id. As courts also recognize, “Congress, however, decided to treat the Internet differently.” Id. Courts are instructed to interpret “broadly” the immunity afforded by § 230 and “close cases. . .must be resolved in favor of immunity.” Id. at 408. Moreover, the immunity afforded by § 230 extends to state law claims as well. See 47 U.S.C. § 230(e)(3) (“[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section”).


The immunity afforded by § 230, however, is not without limits. While a provider of an “interactive computer service” is generally entitled to immunity, as noted above, such is not the case where the provider of an “interactive computer service” is also deemed to be an “information content provider” vis-a-vis the content in question. Id. An “information content provider” is defined as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” 47 U.S.C. § 230(f)(3). Stated differently, “immunity under the CDA depends on the pedigree of the content at issue.”Jones, 775 F.3d at 409. Accordingly, if a website operator is merely displaying or allowing access to information or content from a separate and distinct “information content provider,” the website operator enjoys immunity. Id.


Thus, the question becomes whether Defendants can be said to have developed the objectionable information. In this context, development considers what, if anything, the website provider did with or to information created by or obtained from a third party. Id. at 409-11. To constitute development, the website provider must do more than display or allow access to content created by a third party. Id. at 410. Even “augmenting” the content in question does not constitute development. Id. To constitute development, the website provider must take action which “contributes materially to the alleged illegality” of the conduct or content. Id. As the Sixth Circuit has held:

A material contribution to the alleged illegality of the content does not mean merely taking action that is necessary to the display of allegedly illegal content. Rather, it means being responsible for what makes the displayed content allegedly unlawful. Id.


Plaintiff merely alleges that Defendants operated a website which posted, or directed individuals to, information created by a third party. Plaintiff alleges that this conduct constitutes various torts under state law. As discussed above, however, Defendants enjoy immunity from such claims.”


In a rare preempted notice of just how frivolous and transparent the efforts of David Nails to abuse the judicial process were, the Judge expresses the strong convictions of how asinine the lawsuit really was and not worthy of serious consideration when closing the Order by conveying: “The undersigned further recommends that appeal of this matter would not be taken in good faith. See McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997); 28 U.S.C. § 1915(a)(3). ELLEN S. CARMODY, United States Magistrate Judge.”

Thank you Judge Ellen E. Carmody for your diligent efforts in administering justice and exposing such frivolous litigation as that initiated by David Nail for the charade it was.




As reported last month, a resounding victory was obtained in Federal Court with the DISMISSAL of another frivolous lawsuit filed in the United States District Court Western District of Michigan Southern Division. The update is that as expected the convicted felon David William Nail of Coldwater, Michigan challenged the ruling of Judge Ellen S. Carmody in her determination that the SOR websites accessing the database of archived public records released into the public domain were protected by IMMUNITY based on the dictates of Section 230 of the Communication Decency Act. The expected meritless legal challenge submitted by the convicted felon David Nail against the rulings of Judge Carmody was required to be reviewed by yet another Federal Judge. The great news is that after again thoroughly arbitrating the legal and factual basis of the ridiculous claims before the Court, the second Federal Judge, the Honorable Janet T. Neff, emphatically supported ALL of the previous rulings.


The final ruling of Judge Neff did not require the extensive breakdown of all the relevant legal analysis as that put forth by Judge Carmody. What is worth noting in Judge Neff’s final ruling is:


·         The Court determines that the Magistrate Judge properly conducted the review of Plaintiff’s Complaint required by 28 U.S.C. § 1915(e)(2) and properly concluded that Plaintiff’s allegations fail to state a claim upon which relief can be granted. Plaintiff’s objections are therefore denied.


·         Plaintiff is proceeding in forma pauperis, and this Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal of the Judgment would not be taken in good faith. See McGore v. Wrigglesworth, 114 F.3d 601, 610 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199, 206, 211-12 (2007).


This is not just a GREAT victory for the SOR websites, but a victory for Freedom of Speech 1st Amendment considerations and the People’s Right to Know. Thank you Judge Neff for defending the U.S. Constitution and the overwhelming legal precedents found throughout the justice system from the U.S. District Court level to all eleven (11) U.S. courts of appeal (or circuit courts) and finally the U.S. Supreme Court. The next step will be to implement the proper legal response to address the lies and false claims brought forward by perjurers such as David Nail and all others so that they are held accountable for their atrocious Abuse of Process and Malicious Prosecution. The new year of 2016 has started in triumph, and more are to come in the U.S. District Courts of Arizona and Nevada. You will be appropriately updated upon confirmation of the victories coming forthwith. Until then…. 








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