                                                                            FILED
                                                                              JUL 11 2016
                            NOT FOR PUBLICATION
                                                                         MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS
                    UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT


JOHN WINTERS,                                    14-16460

              Plaintiff-Appellant,               D.C. No. 2:13-cv-00834-KJM-
                                                 KJN

  v.


UNITED STATES OF AMERICA,                        MEMORANDUM*

              Defendant-Appellee.


                   Appeal from the United States District Court
                      for the Eastern District of California
                   Kimberly J. Mueller, District Judge, Presiding

                              Submitted July 5, 2016**
                              San Francisco, California


Before: SILVERMAN and NGUYEN, Circuit Judges, and GARBIS, Senior
District Judge.***

        *
              This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
              The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
              The Honorable Marvin J. Garbis, Senior United States District Judge
for the District of Maryland, sitting by designation.
      John Winters appeals the decision of the district court granting summary

judgment to the United States. We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we affirm.

      Winters was injured when he was thrown from his motorcycle after hitting a

pothole in Eldorado National Forest. He sued the United States Department of

Agriculture’s Forest Service under the Federal Tort Claims Act (“FTCA”), 28

U.S.C. §§ 1346(b) and 2674, alleging negligent road maintenance. The district

court granted summary judgment to the United States on the basis that California

Civil Code § 846 creates immunity for any person that allows others to enter and

use private land for recreational use free of charge.

      Reviewing the district court’s decision de novo, Oyama v. Univ. of Hawaii,

813 F.3d 850, 860 (9th Cir. 2015), we agree that under the FTCA, the federal

government must be treated as a private person, not a public entity, and is

therefore, immune. See, e.g., United States v. Olson, 546 U.S. 43, 45-46 (2005)

(holding that the United States’ liability under the FTCA is to be based on the state

law liability of a private party, not of a state or municipal entity). The immunity

applies to highways through national forests. Mattice v. U.S. Dep’t of Interior, 969

F.2d 818, 821 (9th Cir. 1992).

                                           2
      One exception to this immunity is when a landowner willfully or maliciously

fails to act on a dangerous condition or warn about its existence or nature. Cal.

Civ. Code § 846. However, since the parties stipulated that there was no evidence

of willful or malicious conduct, the exception does not apply here.

      AFFIRMED.




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