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Walker v. United States

United States District Court, D. Oregon, Medford Division

April 29, 2018

ANGIE WALKER, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          REPORT & RECOMMENDATION

          Mark D. Clarke United States Magistrate Judge.

         On March 23, 2018, the district court adopted (#38) a recommendation that Plaintiff Angie Walker's Amended Complaint be dismissed with prejudice. Plaintiff appealed (#40) the district court's dismissal to the Ninth Circuit Court of Appeals. The Ninth Circuit now refers (#42) the matter back to the district court for the limited purpose of determining whether Plaintiffs in forma pauperis ("IFP") status should continue or whether the appeal is frivolous or taken in bad faith. For the reasons stated below, the Court recommends the revocation of Plaintiffs IFP status.

         LEGAL STANDARD

         An indigent party who cannot afford the expense of pursuing an appeal may file a motion for leave to proceed IFP. Fed. R. App. P. 24(a); 28 U.S.C. § 1915(a)(1). Revocation of a litigant's IFP status is appropriate where the district court finds that the litigant's appeal is frivolous or not taken in good faith. See 28 U.S.C. §§ 1915(a)(3), 1915(e)(2)(B); see also Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (noting that revocation of IFP status is appropriate where district court finds the appeal to be frivolous). An appeal is frivolous where it lacks an arguable basis in law or fact. Franklin v. Murphy, 745 F.2d 1221, 1225 (9th Cir. 1984).

         DISCUSSION

         Plaintiff lives in an apartment complex subsidized by the United States Department of Agriculture ("USDA"). Her apartment is designated as a smoke-free property, but she alleges tenants routinely smoke inside the complex, causing Plaintiff and other residents to suffer the health effects of secondhand smoke. The USDA is not a party to Plaintiffs rental agreement; rather, her landlord is Grand Management Services, Inc. See Compl. Ex. 1 (partial copy of lease agreement). Because her apartment is USDA-subsidized, however, Plaintiff avers that 7 C.F.R § 3560 requires USDA employees to enforce her apartment's no-smoking policy and that their failure to enforce the no-smoking policy amounts to common-law negligence.

         In reviewing Plaintiffs claim, the Court first assessed whether Plaintiff could sue the United States for common-law negligence or whether the government instead maintained sovereign immunity. As the Court explained in the Report and Recommendation (#30), because Plaintiff sought to sue the federal government in tort for alleged transgressions by USDA taken in bad faith. For the reasons stated below, the Court recommends the revocation of Plaintiffs IFP status.

         LEGAL STANDARD

         An indigent party who cannot afford the expense of pursuing an appeal may file a motion for leave to proceed IFP. Fed. R. App. P. 24(a); 28 U.S.C. § 1915(a)(1). Revocation of a litigant's IFP status is appropriate where the district court finds that the litigant's appeal is frivolous or not taken in good faith. See 28 U.S.C. §§ 1915(a)(3), 1915(e)(2)(B); see also Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (noting that revocation of IFP status is appropriate where district court finds the appeal to be frivolous). An appeal is frivolous where it lacks arguable basis in law or fact. Franklin v. Murphy, 745 F.2d 1221, 1225 (9th Cir. 1984).

         DISCUSSION

         Plaintiff lives in an apartment complex subsidized by the United States Department of - Agriculture ("USDA"). Her apartment is designated as a smoke-free property, but she alleges tenants routinely smoke inside the complex, causing Plaintiff and other residents to suffer the health effects of secondhand smoke. The USDA is not a party to Plaintiffs rental agreement; rather, her landlord is Grand Management Services, Inc. See Compl. Ex. 1 (partial copy of lease agreement). Because her apartment is USDA-subsidized, however, Plaintiff avers that 7 C.F.R. § 3560 requires USDA employees to enforce her apartment's no-smoking policy and that their failure to enforce the no-smoking policy amounts to common-law negligence.

         In reviewing Plaintiffs claim, the Court first assessed whether Plaintiff could sue the United States for common-law negligence or whether the government instead maintained sovereign immunity. As the Court explained in the Report and Recommendation (#30), because Plaintiff sought to sue the federal government in tort for alleged transgressions by USDA employees acting on behalf of the United States, her suit must have complied with the Federal Tort Claims Act ("FTCA"). 28 U.S.C. § 2674. One such requirement is that a plaintiffs theory of liability exist in the state where the alleged tort took place-here, Oregon. Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 478 (1994).

         And, while Oregon "recognizes that a landlord has a duty to maintain areas of the rented premises over which he or she retains control in a reasonably safe condition ... if the landlord knew or should have known about the unsafe condition and could have made the condition safe, " Waldner v. Stephens, 345 Or. 526, 535 (2008) (citing Woolston v. Wells, 297 Or. 548 (1984); Pritchard v. Terrill, 189 Or. 662 (1950); Lyons v. Lich, 145 Or. 606, 610 (1934); Massor v. Yates, 137 Or. 569 (1931)), no Oregon law imposes a duty upon a third party who is not a party to a lease agreement, nor an owner or occupier of the land, to ensure a rented premises is maintained in a reasonably safe condition.

         Accordingly, because Grand Management Services, not the USDA, was and is Plaintiffs landlord, and the USDA is neither an owner nor an occupier of her complex, the Court found that, as a matter of law, the USDA had no duty, in common law or otherwise, to enforce the no-smoking policy within Plaintiffs rental agreement. Because the USDA had no such duty, Plaintiffs theory of ...


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