REPORT & RECOMMENDATION
MARK D. CLARKE, 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 Plaintiff's 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); Massar 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 nosmoking policy within Plaintiffs rental agreement. Because the USDA had no such duty, Plaintiffs theory of liability did not exist in Oregon and the FTCA did not waive the federal government's sovereign immunity.
The Court next assessed whether 7 C.F.R. § 3560 somehow provided Plaintiff an independent right to sue the United States for tortious conduct that would have separately abrogated the United States' sovereign immunity. As the Court explained, no such right existed. Instead, USDA regulations vest tenants such as Plaintiff with the right to file a written grievance with the landlord for failure to maintain premises in a safe, sanitary, and decent manner. 7 C.F.R. § 3560.160(d). If the grievance is not resolved during an informal meeting between the tenant and the landlord, the landlord "must prepare a summary of the problem and submit the summary to the tenant . . . and the Agency within 10 calendar days." 7 C.F.R. § 3560.160(£)(3). Thereafter, if the tenant so desires, he or she may seek a hearing in front of a hearing officer or hearing panel, which "must be structured so as to provide basic due process safeguards." 7 C.F.R. § 3560.160(g)-h(2). After the hearing, the hearing officer or panel will issue an opinion affirming or reversing the landlord's decision. That decision "shall be binding upon the parties" unless the USDA notifies the parties that the decision is somehow not in compliance with agency regulations. 7 C.F.R. § 3560.160(i)(4).
Plaintiff nowhere alleged she was not afforded this grievance procedure; instead, her sole allegation was that the United States was tortuously liable in the amount of $16,000,000 for negligently failing to enforce her apartment's no-smoking provision.1Because this type of claim is not possibly viable, however, the district court dismissed Plaintiffs claim with prejudice. See Cato v. United States, 70 F.3d 1103, 1111 (9th Cir. 1995) (explaining that because the United States did not waive its sovereign immunity with respect to the plaintiffs theories of relief, either via the FTCA or any other source the court could identify, the deficiencies in the plaintiffs complaints could not be cured).
Accordingly, Plaintiffs Amended Complaint lacks an arguable basis in law or fact, and her appeal of its dismissal is therefore frivolous. Franklin, 745 F.2d at 1225. The Court thus recommends the revocation of Plaintiffs IFP status on appeal.
RECOMMENDATION
Based on the foregoing, the court recommends that Plaintiffs IFP status should be revoked. This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order.
The Report and Recommendation will be referred to a district judge. Objections to this Report and Recommendation, if any, are due fourteen (14) days from today's date. If an objection is filed, any response to the objection is due within fourteen (14) days from the date of the objection. See Fed. R. Civ. P. 72, 6. Parties are advised that the failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
