John Michael Crim v. CYNTHIA MANN and DALE PATRICK

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN MICHAEL CRIM,
Plaintiff - Appellant,
v.
CYNTHIA MANN and DALE PATRICK,
Defendants - Appellees.
No. 13-16085
D.C. No. 1:12-cv-01089-LJO-DLB
MEMORANDUM*
JOHN MICHAEL CRIM,
Plaintiff - Appellant,
v.
MANAGEMENT & TRAINING
CORPORATION; et al.,
Defendants - Appellees.
No. 13-16660
D.C. No. 1:09-cv-02041-AWI-
GSA
JOHN MICHAEL CRIM,
Plaintiff - Appellant,
No. 14-17482
D.C. No. 1:12-cv-01340-AWI-
GSA
FILED
APR 12 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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v.
MANAGEMENT & TRAINING CORP.;
et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Anthony W. Ishii, District Judge, Presiding
Argued and Submitted January 12, 2017
San Francisco, California
Before: WALLACE and M. SMITH, Circuit Judges, and ERICKSON,**
District Judge.
John Michael Crim, a former federal prisoner, appeals from the district
court’s dismissal of three civil rights actions he filed pro se while incarcerated at
Taft Correctional Institution. Crim alleges constitutional violations against
Management & Training Corporation (MTC), the private entity that administers
Taft, as well as employees of MTC.
In the first action (13-16660), the district court dismissed Crim’s third
amended complaint for lack of subject matter jurisdiction. Because it is not clear
** The Honorable Ralph R. Erickson, United States District Judge for the
District of North Dakota, sitting by designation.
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from the face of the complaint whether Crim intended to proceed under 42 U.S.C.
§ 1983 or Bivens, the magistrate judge construed the complaint as proceeding
under Bivens and recommended dismissal of all but one claim. When Crim
objected on grounds that his complaint did not involve federal officials, the
magistrate judge issued a supplemental recommendation that Crim’s complaint be
dismissed for lack of subject matter jurisdiction instead. The district court erred in
adopting the supplemental report and recommendation because a failure to state a
claim properly does not divest a district court of subject matter jurisdiction. See
Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 254 (2010) (“Subject-matter
jurisdiction . . . refers to a tribunal’s power to hear a case . . . . It presents an issue
quite separate from the question whether the allegations the plaintiff makes entitle
him to relief.”) (internal quotation marks and citations omitted).
In the second action (13-16085), the district court screened Crim’s complaint
and dismissed with prejudice for failure to state a claim. The complaint in the
second action was initially filed with the third amended complaint in the first
action, but was subsequently opened as a separate case. Although discussed at
length in the opening brief, the complaint in the second action does not raise a First
Amendment claim and does not name Tiarra Stewart as a defendant. Crim does not
raise any argument that the claims actually made in the complaint were improperly
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dismissed, so he has waived any issues on appeal. See Cruz v. Int’l Collection
Corp., 673 F.3d 991, 998 (9th Cir. 2012) (“We review only issues which are
argued specifically and distinctly in a party’s opening brief.” (quotation marks
omitted)). The district court did not abuse its discretion in failing to grant leave to
amend because Crim was previously allowed two opportunities to amend in the
first action before the case was split.
In the third action (14-17482), the district court screened Crim’s complaint
and eventually dismissed for failure to state a claim. The district court’s order does
not address the sufficiency of the complaint’s claims, and instead refers only to a
motion Crim had previously filed for access to a law library. The district court
erred in failing to consider Crim’s complaint independently of his motion for
library access. See 28 U.S.C. § 1915A (referring to screening of “a complaint”).
Accordingly, the district court also erred in deeming the third action a “strike” for
purposes of 28 U.S.C. § 1915(g).
The first action (13-16660) is REVERSED AND REMANDED for the
district court to consider whether Crim’s third amended complaint states a claim.
If the district court determines that Crim’s complaint can be liberally construed as
proceeding against the individual defendants under a Bivens theory of liability, the
district court should also determine whether Bivens liability extends to his claims.
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See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding pro se complaints
should be liberally construed). The second action (13-16085) is AFFIRMED.
The third action (14-17482) is REVERSED AND REMANDED for the district
court to consider Crim’s complaint in the first instance.
Appellees’ motion for judicial notice is DENIED.
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