                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                            APR 12 2017
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
JOHN MICHAEL CRIM,                               No. 13-16085

              Plaintiff - Appellant,             D.C. No. 1:12-cv-01089-LJO-DLB

  v.

CYNTHIA MANN and DALE PATRICK,                   MEMORANDUM*

              Defendants - Appellees.



JOHN MICHAEL CRIM,                               No. 13-16660

             Plaintiff - Appellant,              D.C. No. 1:09-cv-02041-AWI-
                                                 GSA
  v.

MANAGEMENT & TRAINING
CORPORATION; et al.,

              Defendants - Appellees.



JOHN MICHAEL CRIM,                               No. 14-17482

              Plaintiff - Appellant,             D.C. No. 1:12-cv-01340-AWI-
                                                 GSA


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
  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


                                              3
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.


                                           4
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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