Crim v. Management & Training Corp. et al

Filing 85

SUPPLEMENTAL FINDINGS and RECOMMENDATION, Recommending That This Action be Dismissed for Want of Jurisdiction, signed by Magistrate Judge Gary S. Austin on 5/28/13, referred to Judge Ishii. Objections to F&R Due Within Thirty Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHN MICHAEL CRIM,

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Plaintiff,

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1:09-cv-02041-AWI-GSA-PC
SUPPLEMENTAL FINDINGS AND
RECOMMENDATION, RECOMMENDING
THAT THIS ACTION BE DISMISSED FOR
WANT OF JURISDICTION

vs.
MANAGEMENT & TRAINING CORP.,
et al.,

OBJECTIONS, IF ANY, DUE WITHIN
THIRTY DAYS

Defendants.

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I.

BACKGROUND
John Michael Crim ("Plaintiff") is a federal prisoner proceeding pro se and in forma

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pauperis with this civil action.

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Plaintiff filed the Complaint commencing this action on

November 20, 2009. (Doc. 1.)

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On April 15, 2013, the court entered findings and recommendations, recommending that

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this action proceed on Plaintiff’s retaliation claim, and that all other claims be dismissed for

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failure to state a claim under Bivens vs. Six Unknown Agents, 403 U.S. 388 (1971). (Doc. 83.)

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On May 3, 2013, Plaintiff filed objections to the findings and recommendations. (Doc. 84.) In

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the objections, Plaintiff states that he “is not making claims under Bivens.” Id. at 2 ¶9.

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II.

FEDERAL JURISDICTION

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Federal courts are courts of limited jurisdiction. They can adjudicate only those cases

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which the Constitution and Congress authorize them to adjudicate: basically those involving
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diversity of citizenship, or a federal question, or to which the U.S. is a party. Kokkonen v.

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Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 1677 (1994); Finley v.

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United States, 490 U.S. 545, 551-552, 109 S.Ct. 2003, 2008 (1989). Federal courts are

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presumptively without jurisdiction over civil actions and the burden of establishing the contrary

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rests upon the party asserting jurisdiction. Kokkonen, 511 U.S. at 377, 114 S.Ct. at 1677. Lack

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of subject matter jurisdiction is never waived and may be raised by either party or the court at

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any time – even for the first time on appeal. Henderson ex rel. Henderson v. Shinseki, ___ U.S.

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___, 131 S.Ct. 1197, 1202 (2011); Attorneys Trust v. Videotape Computer Products, Inc., 93

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F.3d 593, 594-595 (9th Cir. 1996).

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Plaintiff states that he “did not file a Bivens action; there are no state or federal

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officials” and “there is no governmental entity or government agents who are defendants in this

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action.” (Objections, Doc. 84 ¶¶1, 3, 9.) Plaintiff states that his allegations “link[] each of the

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defendants to ... violations of 28 C.F.R,” and Plaintiff refers to “a parallel tort remedy.” (Id.

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¶¶5, 9.) Plaintiff also indicates that he seeks to bring conspiracy, equal protection, due process,

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and retaliation claims. However, if Plaintiff is not proceeding under Bivens, he must establish

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that the court has jurisdiction by other authority, or his case will be dismissed.

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Plaintiff indicates in the Third Amended Complaint that he is proceeding under the

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Civil Rights Act: 42 U.S.C. § 1983, and 42 U.S.C. § 1985. (Third Amd Cmp, Doc. 73 at 1, 5.)

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To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under color of

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state law and (2) the defendant deprived him of rights secured by the Constitution or federal

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law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). Plaintiff may not

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proceed under § 1983 if none of his defendants are state actors. With respect to § 1985, the

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court found in the findings and recommendations of April 15, 2013, that Plaintiff fails to state a

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claim under § 1985 because his facts do not support his allegation that defendants entered into a

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conspiracy. (F&R, Doc. 83 at 10-11 ¶G.)

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The court construed Plaintiff’s action as a Bivens action because Plaintiff is a federal

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prisoner, and Bivens actions and actions under 42 U.S.C. § 1983 are largely “identical save for

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the replacement a state actor under § 1983 by a federal actor under Bivens.” Van Strum v.
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Lawn, 940 F.2d 406, 409 (9th Cir. 1991). Under Bivens, a plaintiff may sue a federal officer in

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his or her individual capacity for damages for violating the plaintiff’s constitutional rights. See

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Bivens, 403 U.S. at 397. However, Plaintiff argues that none of his defendants are federal

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officers, which indeed precludes him from proceeding under Bivens. Plaintiff has not set forth

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any other authority which gives the court jurisdiction over his claims.

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It is presumed that a case lies outside the jurisdiction of the federal courts unless

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Plaintiff proves otherwise.

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Confederated Tribes, 873 F.2d 1221 (9th Cir. 1993). Therefore this case should be dismissed

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for want of jurisdiction.

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III.

Kokkonen, 511 U.S. at 376 (1994); Stock West, Inc. v.

CONCLUSION AND RECOMMENDATION

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The Court finds that the district court lacks subject matter jurisdiction over Plaintiff’s

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complaint. Accordingly, IT IS HEREBY RECOMMENDED that this case be dismissed for

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want of jurisdiction.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within thirty

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days after being served with these findings and recommendations, Plaintiff may file written

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objections with the Court. Such a document should be captioned "Objections to Magistrate

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Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections

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within the specified time may waive the right to appeal the District Court's order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

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May 28, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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