FILED
NOT FOR PUBLICATION JAN 04 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MICHAL WAWRZYNSKI, No. 11-55622
Plaintiff - Appellant, D.C. No. 3:10-cv-02347-H-WMC
v.
MEMORANDUM *
BRYON HIBSHAM, Officer; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Submitted December 19, 2012 **
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
Michal Wawrzynski appeals pro se from the district court’s order dismissing
his 42 U.S.C. § 1983 action alleging that defendants conspired to retaliate against
him for filing a previous lawsuit challenging the constitutionality of a San Diego
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument and therefore denies Wawrzynski’s request for oral
argument. See Fed. R. App. P. 34(a)(2).
pedicab ordinance. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo a district court’s dismissal of an action as barred by the doctrine of res
judicata. W. Radio Servs. Co. v. Glickman, 123 F.3d 1189, 1192 (9th Cir. 1997).
We affirm.
The district court properly dismissed Wawrzynski’s § 1983 claims on the
basis of res judicata because the claims were based on the same primary right
asserted in a prior state court action that was dismissed with prejudice. See
Manufactured Home Cmtys. Inc. v. City of San Jose, 420 F.3d 1022, 1031 (9th Cir.
2005) (“To determine the preclusive effect of a state court judgment federal courts
look to state law. California’s res judicata doctrine is based on a primary rights
theory.” (citation omitted)).
The district court did not abuse its discretion by declining to exercise
supplemental jurisdiction over Wawrzynski’s state law claims after dismissing his
§ 1983 claims. See 28 U.S.C. § 1367(c)(3); Fang v. United States, 140 F.3d 1238,
1241 (9th Cir. 1998) (reviewing decision to decline supplemental jurisdiction for
an abuse of discretion). We construe the dismissal of the state law claims to have
been without prejudice. See Gini v. Las Vegas Metro. Police Dep’t, 40 F.3d 1041,
1046 (9th Cir. 1994) (dismissal based on declining supplemental jurisdiction
should be without prejudice).
2 11-55622
Wawrzynski’s contentions that the prior state court order was not a final
judgment, the district court overlooked unserved defendants, and the California
Government Code’s claim presentation requirement precluded the application of
res judicata, are rejected.
AFFIRMED.
3 11-55622