Warenback v. Ford ( 2021 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * * 7 DOUGLAS HARRY WARENBACK, Dist. Case No. 2:20-cv-01682-KJD-VCF Appellate Case No. 21-16964 8 Plaintiff, ORDER 9 v. 10 AARON FORD, Attorney General for the State of Nevada, 11 Defendant. 12 On December 1, 2021, the Ninth Circuit Court of Appeals referred this matter to this 13 Court for the limited purpose of determining whether in forma pauperis status should be 14 continued for the appeal or whether the appeal is frivolous or taken in bad faith. See 28 U.S.C. § 15 1915(a)(3); see also Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) 16 (revocation of forma pauperis status is appropriate where district court finds the appeal to be 17 frivolous). 18 Plaintiff’s original in forma pauperis (“ifp”) application and accompanying complaint 19 were filed on September 11, 2020. Plaintiff alleged that Nevada’s sex-offender registration 20 statute, NRS 179D.480, violated his constitutional rights because it states that a “sex offender 21 shall appear in person in at least one jurisdiction in which the offender or sex offender resides,” 22 which, plaintiff alleged, made the statute an ex post facto law. Warenback alleged that the statute 23 is unconstitutional on its face and as applied to him because he spent many years as a homeless 24 person which made it difficult for him to comply with the required in person appearances. 25 The magistrate judge granted Plaintiff’s ifp application and screened Plaintiff’s claims 26 under Hatton v. Bonner, 356 F.3d 955, 964 (9th Cir. 2003) (setting out a two-part analysis of an 27 ex post facto clause challenge to California’s sex-offender registration statute). The magistrate 28 1 | judge determined that Plaintiff's complaint failed to state a claim based on Hatton’s two-step approach. However, the court allowed Plaintiff to file an amended complaint to cure the 3 | deficiencies identified. The amended complaint failed to cure the deficiencies and argued that the 4| Court should apply out-of-circuit precedent rather than Hatton. The magistrate judge then 5 | recommended that the Court dismiss the amended complaint without further leave to amend. 6 | Upon ade novo review, the Court adopted the report and recommendation. See Doc. No. 12. 7 | Accordingly, the Court finds that Plaintiff's appeal is frivolous and that in forma pauperis status 8 | 1s revoked. The Clerk of the Court shall forward a copy of this order to the Ninth Circuit Court of 9| Appeals. 10| ITISSO ORDERED. 11 | Dated this 9th day of December, 2021. 12 ¢ NS 13 Kent J “Dawson 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-