                                                                           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                             NOT FOR PUBLICATION                            JAN 04 2013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
